*

Honorable Joseph F. Weis, Jr., Senior U.S. Circuit Judge

for the Third Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-9061.

UNITED STATES of America, Plaintiff-Appellee,

v.

Malcolm Benoni WITHROW, Defendant-Appellant.

June 13, 1996.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:94-CR-135-1), William C. O'Kelley,

Judge.

Before BIRCH, Circuit Judge, and CLARK and WEIS *

, Senior Circuit

Judges.

BIRCH, Circuit Judge:

Malcolm Benoni Withrow appeals the sentence he received

following a plea of guilty to the offense of armed robbery of a

motor vehicle. See 18 U.S.C. § 2119. He contends that the

district court erroneously declined to depart downward on the

ground that Withrow's offense conduct constituted a single,

aberrational act. Whether a district court has the discretion to

depart downward based on a factual determination that the

defendant's criminal behavior was the product of a single, aberrant

episode is an issue of first impression in this circuit.

I. BACKGROUND

On February 20, 1994, Withrow and four companions went to a

Pizza Hut located across the street from a skating rink, drove

around the skating rink parking lot, and selected a vehicle—a Jeep

Cherokee—to rob. The four men went back to the Pizza Hut parking
lot, waited until the Jeep's owner, Milton Edwards, returned to his

car, and proceeded to follow him in their car. After about one

mile, Edwards exited to a gas station. Withrow and his companions

parked nearby. Withrow walked to the gas station, approached

Edward's Jeep, pointed a gun at him, and demanded the keys to the

car. Withrow took the keys, entered the Jeep from the passenger

side, pulled a nylon stocking over his head, and instructed Edwards

to drive out of the gas station. While the car was moving, Edwards

attempted to grab Withrow's gun. A struggle ensued, the gun

discharged, and the Jeep was struck by another vehicle.

At sentencing, Withrow requested a downward departure based on

what he contended was a single episode of aberrant behavior. In

support of this request, Withrow's mother testified that Withrow

had been, up until the time he committed this carjacking, a

responsible son, grandson, and father, and that he had never

committed any violent act. The court refused to depart and stated

that Withrow's request was not "recognized or justified in the

law." R2-28. In an attempt to clarify the basis of the court's

ruling, the following exchange between Withrow's counsel and the

sentencing judge subsequently occurred:

Counsel: For clarification, is it the court['s] ruling that

it is of the opinion that the Eleventh Circuit has taken away

the authority under a single act of aberrational behavior.

Court: I believe that's the rule under the Guidelines and I

believe that's the rule in the Eleventh Circuit. I believe

those are not factors that the court should take into—that

that's a factor that the court should take into consideration

in attempting to depart. Frankly, I think if the court tried

to depart, it would be reversible error.

Id. at 29.

 Ordinarily, we will not review a district court's denial of
a request for downward departure. United States v. Hadaway, 998

F.2d 917, 919 (11th Cir.1993). However, a district court's refusal

to depart is reviewable on appeal if the court's decision was based

on the belief that it lacked the authority to consider a departure.

United States v. Williams, 948 F.2d 706, 708 (11th Cir.1991). See

also United States v. Fossett, 881 F.2d 976, 979 (11th Cir.1989)

(holding that a defendant's assertion that "the district court did

not believe it had the statutory authority to depart from

sentencing guideline range ... presents a cognizable claim on

appeal"). The district court's determination that it lacked the

authority to depart from the Sentencing Guidelines is reviewed de

novo. Id. Here, the district court's decision to refuse Withrow's

request for downward departure was based explicitly on the court's

understanding that it lacked the discretion to consider such a

request. In light of the court's unambiguous statement that it was

not authorized to depart in this case, we conclude that the court's

decision is reviewable. We therefore address whether the

Sentencing Guidelines permit a downward departure based on the

specific factor advanced by Withrow.

II. DISCUSSION

A district court must impose a sentence within the guideline

range "unless the court finds that there exists an aggravating or

mitigating circumstance of a kind, or to a degree, not adequately

taken into consideration by the Sentencing Commission in

formulating the guidelines that should result in a sentence

different from that described." 18 U.S.C. § 3553(b). The

Sentencing Commission has stated that "[t]he controlling decision
as to whether and to what extent departure is warranted can only be

made by the courts." U.S.S.G. § 5K2.0 (1994). In reviewing this

challenge to a sentence, we give due deference to the district

court's application of the guidelines to the facts and accept the

findings of the district court unless they are clearly erroneous.

18 U.S.C. § 3742(e).

An introductory policy statement in the guidelines entitled

"Probation and Split Sentences" contains a discussion of

pre-guidelines practice concerning first-time offenders convicted

of non-violent but "serious" offenses. See U.S.S.G. Ch. 1, Pt. A,

4(d). This section provides a specific framework to which the

court must refer in sentencing a first-time offender who likely

would have received a probationary sentence under the

pre-guidelines regime. The concluding sentence of the discussion

states that "[t]he Commission, of course, has not dealt with the

single acts of aberrant behavior that still may justify probation

at higher offense levels through departures." Id.

All circuits that have addressed and resolved the question

posed by this appeal have concluded that single acts of aberrant

behavior were excluded from consideration in the formulation of the

guidelines and thus might justify sentences below the guideline

range even in cases where probation is not a viable option. See,

e.g., United States v. Duerson, 25 F.3d 376, 380 (6th Cir.1994).

In United States v. Carey, 895 F.2d 318 (7th Cir.1990), the Seventh

Circuit concluded that the district court had clearly erred in

finding that the defendant's check-kiting scheme spanning fifteen

months constituted a single episode of aberrant conduct. In
reversing the sentencing court's decision to depart downward on

this basis, the court provided a reasoned examination of what might

give rise to a such a departure:

While the Guidelines provide no guidance as to what

constitutes a single act of aberrant behavior, we believe it

must be more than merely something "out of character' or the

defendant's first offense. [The defendant's] otherwise

exemplary life before becoming involved in this check-kiting

scheme does not render his actions, on their own, a single act

of aberrant behavior to support a departure. Instead, we

believe that there must be some element of abnormal or

exceptional behavior. [The defendant's] actions were

apparently the result of extensive planning and were spread

out over a fifteen-month period. A single act of aberrant

behavior, however, generally contemplates a spontaneous and

seemingly thoughtless act rather than one which was the result

of substantial planning because an act which occurs suddenly

and is not the result of a continued reflective process is one

for which the defendant may be arguably less accountable.

Id. at 325. The court further noted that "[u]nder the reasoning of

the Guidelines, the court can consider first offender status in its

determination of a single act of aberrant behavior only where it

finds "unusual circumstances' and the factor is "present to a

degree substantially in excess to that which is ordinarily

involved.' " Id. at n. 4.

The definitional framework set forth by the Seventh Circuit in

Carey has been adopted to varying degrees by the majority of

circuits that have confronted this issue. See, e.g., United States

v. Duerson, 25 F.3d 376, 380 (6th Cir.1994) ("Whether or not the

Commission intended only a limited application of the [aberrant

behavior'] principle, we have no reason to doubt that a district

court can give a first offender a prison sentence below the

guideline range, as opposed to giving him probation, where the

facts justify a finding that his crime truly was a single act of

aberrant behavior."); United States v. Premachandra, 32 F.3d 346,
349 (8th Cir.1994) ("Because the Sentencing Commission did not

consider single acts of aberrant behavior when formulating the

guidelines, we have recognized that a spontaneous and seemingly

thoughtless act may be a basis for departure."); United States v.

Williams, 974 F.2d 25, 26 (5th Cir.1992) ("Although the Guidelines

do not define "aberrant behavior,' we are most certain that it

requires more than an act which is merely a first offense or "out

of character' for the defendant ... [as] those considerations are

taken into account in calculating the defendant's criminal history

category."), cert. denied, 507 U.S. 934, 113 S.Ct. 1320, 122

L.Ed.2d 706 (1993) (citation omitted). But see United States v.

Tsosie, 14 F.3d 1438, 1441 (10th Cir.1994) (expanding Carey to hold

that "[t]he totality of circumstances must be viewed to see whether

the offense fits within [the defendant's] normal conduct or if it

is a complete shock and out of character").

Although the circuits uniformly have held that a single act of

aberrant behavior is a mitigating circumstance that may permit a

district court to depart from the guideline range, there exists a

wide spectrum of factual circumstances under which each court has

found aberrant conduct warranting departure to exist. Compare

United States v. Takai, 941 F.2d 738, 743 (9th Cir.1991)

(defendants convicted of bribing government official to obtain

green cards found to have committed single, aberrant action; court

found that one defendant "actually consulted a lawyer and withdrew

from the scheme so far as he would get any personal benefit," while

the other "stumbled into something awkwardly, naively, and with

insufficient reflection on the seriousness of the crime....") with
 1

Although we acknowledge that the district court did not

have an opportunity to make a factual determination in this case

regarding whether Withrow's conduct was "aberrant" under any

acceptation of that term, the record has been developed

adequately for us to conclude that such a finding would not be

appropriate here. See United States v. Jones, 52 F.3d 924, 927

(11th Cir.) (holding that "[n]o remand is necessary ... [where]

no additional facts need be developed, and any district court

decision of the issue would be reviewed de novo...."), cert.

denied, --- U.S. ----, 116 S.Ct. 265, 133 L.Ed.2d 187 (1995). 

Premachandra, 32 F.3d at 349 (where defendant committed two armed

bank robberies wearing a ski mask over course of two years, court

found that "[t]he robberies ... were neither spontaneous nor

thoughtless. To the contrary, the record indicates that the

robberies were planned rather than impulsive").

 We find persuasive the overwhelming weight of authority

holding that a district court does have the discretion to depart

downward after making a careful factual determination that the

defendant's conduct constituted a single, aberrant act. In accord

with our sister circuits, we further conclude that such an act is

not established unless the defendant is a first-time offender and

the crime was a spontaneous and thoughtless act rather than one

which was the result of substantial planning. See Carey, 895 F.2d

at 324-25. Although the district court in this instance made no

factual findings regarding the nature of Withrow's actions, we are

convinced that the offense conduct giving rise to Withrow's

conviction for carjacking was neither spontaneous nor was it

lacking in planned preparation.1

 As previously stated, Withrow and

his companions drove around a parking lot with the express purpose

of looking for a car to steal. During the time it took Withrow to

locate a desirable vehicle to rob, he had an opportunity to either
reflect upon the action he was about to take and withdraw or to

devise a plan to commit the car theft. Choosing the latter option,

Withrow pointed a gun to the driver's head, entered the car, and

pulled a stocking over his head to conceal his identity. We are

mindful of the testimony offered by Withrow's mother at sentencing,

in which she expressed the view that Withrow's criminal conduct was

inconsistent when viewed in the context of his life as a whole.

This factor alone, however, does not suffice to render a

defendant's conduct "aberrant;" rather, Withrow's actions appear

to have been the result of some planning and preparation, and do

not comport with the definition of a single, aberrant act that we

have adopted. We therefore hold that although the district court

erred in determining that it did not have the authority to depart

downward in this case, the record does not support a finding that

Withrow's conduct constituted a single, aberrant act.

III. CONCLUSION

Withrow contends that the district court should have departed

downward at sentencing based on the fact that his offense conduct

constituted a single, aberrant act. We conclude that the district

court had the discretion to depart downward in this case because

the mitigating factor urged by Withrow was not adequately

considered by the Sentencing Commission in formulating the

Sentencing Guidelines. We further resolve, however, that the

record does not support a finding that Withrow's criminal conduct

was impulsive, spontaneous, or unplanned, and thus does not fall

squarely within the definitional purview of a single, aberrant act.

Accordingly, we AFFIRM.