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, shall 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. Anderson, Assistant United

States Attorney, Wichita, Kansas, for Plaintiff-Appellant.

David J. Phillips, Federal Public Defender, Timothy J. Henry, Assistant Federal

Public Defender, District of Kansas, Wichita, Kansas, for Defendant-Appellee.

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

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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The 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 produced 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 appeals. 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 exceptional case deserving of

departure. We reverse and remand for resentencing.1

The standards we apply in reviewing the district court’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 Remedies 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 PROTECT 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 guidelines, 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 by the facts of this case.” 18 U.S.C.

§ 3742(e)(3)(B). The appellate court also must review de novo whether the

district court provided a sufficient written statement of reasons as required by

amended section 3553(c). Id. § 3742(e)(3)(A).

We recently set forth the analytical framework we will 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 review of the

district court’s sentencing departure shall proceed as follows. First,

we must ascertain whether the district court set forth, in a written

order of judgment, its specific reasons for departure. 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 review under this second

prong of the analysis is de novo. Third, we must consider whether

the factors the district court relied upon were authorized under

section 3553(b) and justified by the facts of the case. 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 third step in the

analysis is commonly called the “heartland” determination. We

review de novo this application of the guidelines to the facts . . . . 

Finally, we must ask whether the district court’s sentence departs to

an unreasonable degree from the applicable guidelines range. In

reviewing the degree of departure, we give due deference 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 amendments 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 future requirements when it entered

its judgment in October 2002, provided only the following written statement of

reasons for the sentence: “The Court departed down to a sentence of 120 months

due to exceptional community support, as well as aberrant behavior.” Aplt’s

App., Vol. I at 21. Whether this statement meets the specificity requirement of

§ 3553(c) is a matter we need not decide in this instance, 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 outside the heartland of bank

robbery cases. The district court relied on two factors for departure: community

support and aberrant behavior. Community support is akin to community ties,

which the guidelines treat as a specific offender characteristic that is “not

ordinarily relevant in determining whether a sentence should be outside the

applicable guideline range.” U.S. Sentencing Guidelines Manual § 5H1.6 (Nov.

1, 2000) (“U.S.S.G.”). As a discouraged factor, community support can be relied

on for a downward departure if the district court finds 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 distinguishing

this case from the heartland, community support may be 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 has more than one criminal

history point, as determined under Chapter Four . . .; or . . . the defendant has a

prior federal, or state, felony conviction, regardless of whether the conviction is

countable under Chapter Four.” Id. § 5K2.20. Here, it is undisputed that

defendant had eleven criminal history points and more than one state felony
3 Although we now apply a de novo standard of review under the PROTECT

Act, we would reach the same conclusion under the former 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 district court correctly

determined that the evidence of community support for 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 youth. When he was released

on parole in June 1999 at the age of forty-three, he had been incarcerated

continuously for the previous twenty-one years of his 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 and volunteered with the Boys

& Girls Club and with his church. Defendant had been on parole for

approximately three years when he robbed a credit union on May 16, 2002.
-7-

That morning, having recently lost his job, defendant entered the credit

union in a mask and brandishing a handgun. He climbed over the teller counter

and demanded that the teller put money in the bag he carried. Defendant escaped

with the money, but was spotted by a witness who followed him and called the

police. When the police joined the pursuit, defendant 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 apprehended defendant in his car

with the money and other paraphernalia from the robbery. Defendant

subsequently pled guilty to the charge of bank robbery.

Before sentencing, the district court received letters 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 robbery, described defendant’s

volunteer work with the organization since his release 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 comments on defendant’s

behalf from his mother, his girlfriend, his church sponsor, and two of the pastors

who had written letters. These witnesses all related their shock and sadness at

defendant’s actions and their feelings that they had, in some way, let defendant
-8-

down by not recognizing the stress he was under and his need for help. The

witnesses described the caring person they knew defendant to be and their belief

that further incarceration would not serve either defendant or the community well.

After considering all the information presented, the district court concluded

that a departure was warranted for the following reason: “[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 significant, 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 passion that the community

seems to be supporting [defendant.]” Aplt’s App., Vol. II at 63.

We conclude that the facts presented to the court did not support a

departure, especially when compared with the facts in other cases. In David

Jones, for instance, the district court had before it twelve letters from community

leaders and the victim’s close relatives that extolled the defendant’s good works

and opposed his incarceration, which the court found 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 community, 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,’ even 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, however, 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 departure 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 that defendant was a

fundamentally good person who had simply snapped under the strain of his

current circumstances and made a poor choice for which he was deeply

remorseful, their support for defendant simply cannot 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 community support, the district court

erred in departing downward from the guidelines when sentencing defendant.

We REVERSE defendant’s sentence and REMAND to the district court

with instructions to impose a sentence within the guideline range. Defendant’s

motion to supplement the record on appeal is GRANTED.