UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v. MERRILL W. ANDREWS, also known as Kamanda Kamangeni, Defendant - Appellee. No. 02-3405

ORDER Filed December 5, 2003

Before TACHA , Chief Circuit Judge, PORFILIO, and BALDOCK , Circuit Judges.
The order and judgment dated September 22, 2003, sh all be published. A copy of the published opinion is attached.

Entered for the Court Patrick Fisher, Clerk of Court By: Amy Frazier Deputy Clerk

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 22 2003 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. MERRILL W. ANDREWS, also known as Kamanda Kamangeni,

Defendant-Appellee. No. 02-3405

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. No. 02-CR-10073-01-JTM)

Submitted on the briefs: Eric F. Melgren, United States Attorney, Brent I. A nderson, Assistant United States Attorney, Wichita, Kansas, for Plaintiff-App ellant. David J. Phillips, Federal Public Defender, TimothyJ. Henry, Assistant Federal Public Defender, District of Kansas, Wichita, Kansa s, for Defendant-Appellee.

Before TACHA , Chief Judge, PORFILIO , and BALDOCK , Circuit Judges.

BALDOCK , Circuit Judge.1 After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. -2- Defendant Merrill Andrews, a/k/a Kamanda Kamangeni, pled guilty to a one-count superceding indictment charging him with robbing a federally insured credit union in Wichita, Kansas, in violation of 18 U.S.C. § 2113(a). Under the applicable sentencing guidelines, defendant had an adjusted offense level of 29 and a criminal history category of VI, which produc ed a sentencing range of 151-188 months’ incarceration. The district court departed downward to 120 months based on “exceptional community support, as well as aberrant behavior.” Aplt’s App., Vol. I at 21. The government now appe als. See 18 U.S.C. § 3742(b). The government contends that defendant did not meet the guideline requirements for a departure based on aberrant behavior and that the evidence of community support did not establish this to be an e xceptional case deserving of departure. We reverse and remand for resentencing. 1 The standards we apply in reviewing the district co urt’s departure decision have changed of late. Following the Supreme Court’ s landmark decision in Koon v. United States , 518 U.S. 81 (1996), we applied a unitary abuse of discretion standard in reviewing departures. See, e.g., United States v. Collins , 122 F.3d 1297, 1303 (10th Cir. 1997). That discretionary review standard changed,2 Other circuits have also applied the PROTECT Act’s new appellate

standards to cases pending on April 30, 2003. See, e.g., United States v. Thurston , 338 F.3d 50, 71-72 (1st Cir. 2003); United States v. Hutman , 339 F.3d 773, 775 (8th Cir. 2003). -3- however, with the enactment of the Prosecutorial Re medies and Tools Against the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub. L. No. 108-21, 117 Stat. 650, which became effective on April 30, 2003. Because this case was pending before us on the effective date of the PROT ECT Act, we will apply the Act’s new appellate standards on our review. 2 Section 401 of the PROTECT Act amended 18 U.S.C. § 3742(e) to provide that when a district court departs from the guideli nes, the appellate court must review de novo whether the departure is based on a factor that: “(i) does not advance the objectives set forth in section 3553(a) (2); or (ii) is not authorized under section 3553(b); or (iii) is not justified bythe facts of this case.” 18 U.S.C. § 3742(e)(3)(B). The appellate court also must rev iew de novo whether the district court provided a sufficient written statem ent of reasons as required by amended section 3553(c). Id. § 3742(e)(3)(A). We recently set forth the analytical framework we w ill now follow in reviewing departures in United States v. Jones , 332 F.3d 1294 (10th Cir. 2003).

In light of the PROTECT Act’s amendments, our revie w of the district court’s sentencing departure shall proceedas follows. First, we must ascertain whether the district court set fo rth, in a written order of judgment, its specific reasons for departu re. Second, we-4-

must consider whether the factors the district court relied upon advance the objectives set forth in section 3553(a) (2) and ensure that the district court’s reliance on those factors did not violate any specific prohibition in the Guidelines. Our reviewunder this second prong of the analysis is de novo. Third, we must c onsider whether the factors the district court relied upon were aut horized under section 3553(b) and justified by the facts of the c ase. To determine whether the factors are authorized, we look to 18 U .S.C. § 3553(b)(1), which provides that a district court may depart if 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. This thi rd step in the analysis is commonly called the “heartland” determi nation. We review de novo this application of the guidelines t o the facts . . . . Finally, we must ask whether the district court’s s entence departs to an unreasonable degree from the applicable guidelin es range. In reviewing the degree of departure, we give due defe rence to the district court and will not reverse absent an abuse of discretion. Id. at 1299-3000 (quotations, citations, and footnotes omitted). One of the new requirements of the PROTECT Act amen dments is that the district court state its reasons for imposing a particular sentence “with specificity in a written order of judgment and commitment.” 18 U.S.C. § 3553(c). The district court here, having no warning of the futur e requirements when it entered its judgment in October 2002, provided only the fol lowing written statement of reasons for the sentence: “The Court departed downto a sentence of 120 months due to exceptional community support, as well as ab errant behavior.” Aplt’s App., Vol. I at 21. Whether this statement meets t he specificity requirement of § 3553(c) is a matter we need not decide in this in stance, because we conclude defendant must be resentenced in any event.-5-

We next consider whether the district court relied on any impermissible factors in concluding that defendant’s case fell ou tside the heartland of bank robbery cases. The district court relied on two fa ctors for departure: community support and aberrant behavior. Community support i s akin to community ties, which the guidelines treat as a specific offender c haracteristic that is “not ordinarily relevant in determining whether a senten ce should be outside the applicable guideline range.” U.S. Sentencing Guide lines Manual § 5H1.6 (Nov. 1, 2000) (“U.S.S.G.”). As a discouraged factor, co mmunity support can be relied on for a downward departure if the district court f inds it “is present to an unusual degree and distinguishes the case from the ‘heartland’ cases covered by the guidelines.” Id. § 5K2.0. Therefore, so long as the facts justify d istinguishing this case from the heartland, community support maybe a permissible basis for departure. Aberrant behavior also may support a downward departure “in an extraordinary case,” but the guidelines prohibit a district court from relying on aberrant behavior for departure if “the defendant h as more than one criminal history point, as determined under Chapter Four . . .; or . . . the defendant has a prior federal, or state, felony conviction, regardl ess of whether the conviction is countable under Chapter Four.” Id. § 5K2.20. Here, it is undisputed that defendant had eleven criminal history points and mo re than one state felony3 Although we now apply a de novo standard of review under the PROTECT

Act, we would reach the same conclusion under the f ormer unitary abuse of discretion standard. -6- conviction. Accordingly, the district court erred in relying on aberrant behavior as a factor for departure. We are left, then, with determining whether the dis trict court correctly determined that the evidence of community support f or defendant was sufficient to remove this case from the heartland and warrant a departure. When used as the sole basis for departure, a defendant’s support in the community must be “extraordinary.” United States v. Jones , 158 F.3d 492, 501 (10th Cir. 1998) (“David Jones ”). Based on our review, we conclude the evidence here does not meet this standard. 3
The evidence before the district court showed that defendant was born in December 1955 and began committing crimes in his yo uth. When he was released on parole in June 1999 at the age of forty-three, h e had been incarcerated continuously for the previous twenty-one years of h is life. While on parole, defendant struggled to find a job, but was finally able to find some part-time jobs. He undertook the care of his handicapped nephew andvolunteered with the Boys & Girls Club and with his church. Defendant had be en on parole for approximately three years when he robbed a credit u nion on May 16, 2002.-7-

That morning, having recently lost his job, defenda nt entered the credit union in a mask and brandishing a handgun. He clim bed over the teller counter and demanded that the teller put money in the bag h e carried. Defendant escaped with the money, but was spotted by a witness who fo llowed him and called the police. When the police joined the pursuit, defend ant led them on a high-speed chase that ended when defendant, driving the wrong way down a one-way street, crashed into a large commercial truck. Police appr ehended defendant in his car with the money and other paraphernalia from the rob bery. Defendant subsequently pled guilty to the charge of bank robb ery. Before sentencing, the district court received lett ers from several members of the community, including pastors at defendant’s church and the Boys & Girls Clubs of South Central Kansas. The letter from the Boys & Girls Clubs, which had been written in April 2002 before the bank robb ery, described defendant’s volunteer work with the organization since his rele ase in June 1999. It discussed the counseling program he participated in that was aimed at directing male youths away from crime. At the sentencing hearing, the court also heard com ments on defendant’s behalf from his mother, his girlfriend, his church sponsor, and two of the pastors who had written letters. These witnesses all relat ed their shock and sadness at defendant’s actions and their feelings that they ha d, in some way, let defendant-8-

down by not recognizing the stress he was under andhis need for help. The witnesses described the caring person they knew def endant to be and their belief that further incarceration would not serve either d efendant or the community well. After considering all the information presented, th e district court concluded that a departure was warranted for the following re ason: “[T]his is not based on the number of letters or the number of people who are here today, but the passion of the people who still believe in him is significa nt, and it tells me something about the kind of community support that he has. . . . I do recognize what I would consider to be exceptional community support and pa ssion that the community seems to be supporting [defendant.]” Aplt’s App., Vol. II at 63. We conclude that the facts presented to the court d id not support a departure, especially when compared with the facts in other cases. In David
Jones , for instance, the district court had before it tw elve letters from community leaders and the victim’s close relatives that extol led the defendant’s good works and opposed his incarceration, which the court foun d to be “‘very unusual.’” 158 F.3d at 500-501. The district court cited both the defendant’s “long history of community service, and his strong support in the co mmunity, even among the family of the victim,” as two among eleven factors for departure. Id. at 500. Under the old standard of review, we held that the district court did not abuse its discretion in relying on either of these factors as “one of several grounds-9-

supporting a departure,” id. , having previously noted that “[a] factor can be considered in the aggregate if it is ‘atypical,’ ev en though it may not be sufficient, in and of itself, to support a departure,” id. at 499. When we examined each of the grounds as the sole basis for departure, howeve r, we expressed our reluctance to sustain a departure based solely on the defendant’s good works under U.S.S.G. § 5H1.6, and we held that the defendant’s “support in the community [was] insufficiently ‘extraordinary’ to support a departu re on this basis alone” under U.S.S.G. § 5H1.6. David Jones , 158 F.3d at 501. Here, despite the witnesses’ genuine distress that they had not foreseen the events that transpired and their continued belief t hat defendant was a fundamentally good person who had simply snapped un der the strain of his current circumstances and made a poor choice for wh ich he was deeply remorseful, their support for defendant simply cann ot be described as extraordinary so as to distinguish this case from the heartland. Because the facts did not justify a departure on the basis of communi ty support, the district court erred in departing downward from the guidelines whe n sentencing defendant. We REVERSE defendant’s sentence and REMAND to the d istrict court with instructions to impose a sentence within the g uideline range. Defendant’s motion to supplement the record on appeal is GRANTE D.