FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 May 7, 2004 

 THOMAS K. KAHN 

 CLERK

 Honorable Richard Mills, United States District Judge for the Central District of *

Illinois, sitting by designation. 

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________

No. 03-13199

_____________

D.C. Docket No. 03-00007-CR-4

UNITED STATES OF AMERICA

Plaintiff-Appellee, 

versus

ANTHONY SIMMONS

a.k.a. Michael Arthur Green,

a.k.a. Antonio White, a.k.a. Antonio Green,

Defendant-Appellant. 

____________

Appeal from the United States District Court

for the Southern District of Georgia

____________

(May 7, 2004)

Before TJOFLAT and HILL, Circuit Judges, and MILLS , District Judge. *
 18 U.S.C. § 924(c)(1)(A) provides:

1

[A]ny person who, during and in relation to any crime of violence or drug

trafficking crime . . . for which the person may be prosecuted in a court of the

United States, uses or carries a firearm, or who, in furtherance of any such crime,

possesses a firearm, shall, in addition to the punishment provided for such crime

of violence or drug trafficking crime . . . be sentenced to a term of imprisonment

of not less than 5 years . . . .

2

TJOFLAT, Circuit Judge:

I. 

On October 25, 2002, Anthony Simmons was arrested for violating

probation. At the time, he was carrying a loaded 9mm semiautomatic handgun and

over two dozen small bags of cocaine. Simmons pled guilty to carrying a firearm

in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A)(i)1

in exchange for having several other charges against him dropped. This statute

carries a mandatory minimum sentence of five years (60 months). See also

U.S.S.G. § 2K2.4(a)(2) (2001) (“[I]f the defendant . . . was convicted of

violating . . . Section 924(c) . . . of title 18, United States Code, the guideline

sentence is the minimum term of imprisonment required by statute.”). 

The district court chose to make an upward departure beyond this 60 month

period and sentenced Simmons to 160 months in prison. The court explained that

Simmons “has at least two prior felon convictions for a crime of violence or a
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controlled substance offense that would have resulted in a career offender

designation.” The court noted that, had the defendant been eligible to be

sentenced as a career offender, “his guideline range of imprisonment would have

been 262 to 327 months.” Consequently, “[b]ased upon [the] defendant’s prior

convictions, two of which would have resulted in a career offender designation,”

the judge concluded that an upward departure of an additional 100 months was

warranted. 

On appeal, Simmons makes three arguments. First, he claims that the

district court erred in considering the 2002 Guidelines, rather than basing his

sentence entirely on the 2001 Guidelines. Second, he contends that the district

court should not have made an upward departure. Finally, he argues that even if

an upward departure was warranted, the extent of this particular upward departure

was clearly unreasonable. We reject these claims and affirm his sentence. 

II. 

We begin by determining whether the sentencing court should have applied

the 2001 Guidelines, which were in effect at the time Simmons committed his

offense, or the 2002 Guidelines, which were in effect on the date of his sentencing. 

Federal law requires judges presumptively to apply the sentencing Guidelines as

they exist at the time of sentencing. 18 U.S.C. § 3553(a) (“The court, in
4

determining the particular sentence to be imposed, shall consider . . . the kinds of

sentence and the sentencing range . . . set forth in the guidelines . . . that . . . are in

effect on the date the defendant is sentenced . . . .”). The Constitution’s Ex Post

Facto Clause, however, prevents the Government from imposing additional

penalties for crimes that have already been committed. See U.S. Const. art. I. § 9,

cl. 3 (“No . . . ex post facto Law shall be passed.”); Calder v. Bull, 3 U.S. (3 Dall.)

386, 390 (1798) (holding that “[e]very law that changes the punishment, and

inflicts a greater punishment, than the law annexed to the crime, when committed”

is an “ex post facto law[], within the words and the intent of the prohibition”). 

Consequently, although courts must presumptively apply the Guidelines as they

exist at the time of sentencing, they may not do so where those Guidelines would

lead to imposition of a harsher penalty than that to which the defendant was

subject at the time of the offense. In such cases, the Guidelines applicable at the

time of the offense must be applied. United States v. Simon, 168 F.3d 1271, 1272

n.1 (11th Cir. 1999) (“We apply the version of the Sentencing Guidelines and

commentary in effect on the date of sentencing, unless a more lenient punishment

would result under the Guidelines version in effect on the date the offense was

committed.” (citation omitted)); see also U.S.S.G. § 1B1.11(b)(1) (2001) (“If the

court determines that use of the Guidelines Manual in effect [when] the defendant
5

is sentenced would violate the ex post facto clause of the United States

Constitution, the court shall use the Guidelines Manual in effect on the date that

the offense of conviction was committed.”). 

In this case, both parties agree that the 2001 Guidelines would result in a

more lenient sentence for Simmons than the 2002 Guidelines. Consequently, the

2001 Guidelines are applicable. Because the presentence investigation report was

based on, and the judge applied, the 2001 Guidelines, no error was committed in

this regard. 

III. 

Having identified the correct edition of the Guidelines to apply, we now

turn to whether an upward departure was warranted in this case. When a

defendant claims that an upward departure “is not authorized under [the

Sentencing Reform Act of 1984]; or is not justified by the facts of the case,” 18

U.S.C. § 3742(e)(3)(B)(ii)-(iii), we review the district court’s factual findings for

clear error, id. § 3742(e)(4), and its legal conclusions de novo, United States v.

Williams, 340 F.3d 1231, 1234 n.8 (11th Cir. 2003) (“Because the statute is silent

as to the standard of review for ‘pure’ questions of law, we review them under our

customary de novo standard.”). We begin in Section A by examining general
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principles applicable to upward departures; Section B applies these principles to

the instant case. 

A. 

To determine the propriety of the district court’s upward departure, it is

necessary to identify the type of departure it was and examine the restrictions our

precedents place on such departures. Departures are classified as guided or

unguided. A guided departure is one based on a factor about an offense or a

defendant that the Guidelines expressly discuss. United States v. Smith, 289 F.3d

696, 710 (11th Cir. 2002) (“Guided departures are those departures specifically

provided for in the Guidelines.”). There are four ways in which the Guidelines

might discuss a particular factor. First, the factor might be one that a guideline, or

a policy statement or application note in the Guidelines, encourages courts to

consider that has not already been taken into account by the specific guideline

under which the defendant is being sentenced. Encouraged factors may always be

used as the basis for upward departures under such circumstances. See, e.g.,

United States v. Kimball, 291 F.3d 726, 734 (11th Cir. 2002); United States v.

Lewis, 115 F.3d 1531 (11th Cir. 1997). For example, U.S.S.G. § 5K2.3 (2001)

encourages courts to make upward departures if the victims of a crime suffer

unusually serious psychological injuries. The guideline establishing the offense
 Because this enhancement is mandatory, it is referred to as an “upward adjustment” or 2

“upward enhancement” and is not considered an upward departure.

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levels for eavesdropping and other invasion-of-privacy offenses, U.S.S.G. § 2H3.1

(2001), does not provide for enhancements based on such considerations or

otherwise take this factor into account. Consequently, if the victim of such an

offense suffers unusually severe psychological injury, a district court is fully

justified in imposing an upward departure. 

Second, the Guidelines may expressly encourage courts to base upward

departures on a particular factor, but that factor may already have been taken into

account by the guideline under which the defendant is being sentenced. For

example, U.S.S.G. § 2A2.2 (2001) sets base the offense level for aggravated

assault at 15, and directs courts to add an additional 5 offense levels if a firearm is

discharged during the crime. Section 5K2.6 encourages courts to grant an upward 2

departure where the defendant uses a weapon in the commission of a crime. 

Although this section makes the use of a firearm an encouraged basis for an

upward departure, it is a factor that the underlying aggravated assault guideline, §

2A2.2, already takes into consideration. Similarly, another guideline encourages

courts to depart upwards if “significant physical injury resulted” from a crime. 

U.S.S.G. § 5K2.2 (2001). Because the crime of aggravated assault is itself based
8

on the infliction of serious physical injury, this encouraged factor is already taken

into account by the underlying guideline. A district court may grant an upward

departure in cases such as these, based on an encouraged factor that is already

contemplated by the Guidelines under which the defendant is being sentenced,

only where the factor is “present to an exceptional degree” not contemplated by

the Guidelines. Lewis, 115 F.3d at 1538. 

Third, a factor might be a discouraged basis for departure. For example,

U.S.S.G. § 5H1.4 (2001) states, “Physical condition or appearance, including

physique, is not ordinarily relevant in determining whether” a departure may be

warranted. As with encouraged factors that have already been taken into account

by an underlying guideline, a discouraged factor may be used as the basis for an

upward departure only if “it is present to an exceptional degree.” Lewis, 115 F.3d

at 1538; see also United States v. Kim, No. 03-11016, 2004 U.S. App. LEXIS

5858, at *9 n.5 (11th Cir. Mar. 30, 2004) (“The difference between discouraged

factors and encouraged factors already taken into account by the applicable

guideline is purely semantic, not legal.”). 

Finally, there are some factors that district courts are simply prohibited from

using as the basis for an upward departure. For example, U.S.S.G. § 5K2.19

(2001) states, “Post-sentencing rehabilitative efforts, even if exceptional,
 Our circuit’s distinction between “guided” and “unguided” departures is not entirely 3

consistent with that established by the Guidelines commentary. According to the commentary, a

guided departure is one in which the Guidelines expressly recommends the amount by which the

court should depart. An unguided departure, in contrast, is one in which the Guidelines either

recommend a particular factor as a possible basis for departure without specifying the amount by

which the court should depart, or are silent as to whether a factor should be used as a basis for

departure. See U.S.S.G. ch. 1, pt. A(4)(b). The only real distinction between our circuit’s use of

these terms and the Guidelines’ use of these terms is that where the Guidelines specify a factor as

being an appropriate basis for departure without recommending a particular amount by which the

court should depart, we would designate it as being a “guided” departure (because the basis for

departure is specified in the Guidelines) while the Guidelines would term it an “unguided”

departure (because the Guidelines do not provide a recommendation as to the extent of the

proposed departure). It is unclear that this variation in terminology actually has any legal effect. 

Nevertheless, under our prior panel rule, we are bound to abide by the definitions of these terms

cultivated in our precedents. See Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d

9

undertaken by a defendant . . . are not an appropriate basis for a downward

departure when resentencing the defendant for that offense.” Departures based on

such factors are automatically invalid. United States v. Hoffer, 129 F.3d 1196,

1201 (11th Cir. 1997) (“If the district court has relied upon a forbidden factor, it

necessarily has abused its discretion.”). 

While the Guidelines address several of the most common characteristics of

offenses and defendants, there is an almost endless variety of other circumstances

or considerations that might warrant upward departures. See U.S.S.G. ch. 1,

pt. A(4)(b) (2001) (“[I]t is difficult to prescribe a single set of guidelines that

encompasses the vast range of human conduct potentially relevant to a sentencing

decision.”). A departure based on a factor not expressly discussed by the

Guidelines is called an “unguided departure.” A court may make an unguided 3
1288, 1292 (11th Cir. 2003) (“Without a clearly contrary opinion of the Supreme Court or of this

court sitting en banc, we cannot overrule a decision of a prior panel of this court . . . .”)

(emphasis in original). 

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departure whenever it “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)(1); see also U.S.S.G.

§ 5K2.0 (2001) (“Circumstances that may warrant departure from the guideline

range pursuant to this provision cannot, by their very nature, be comprehensively

listed and analyzed in advance. The decision as to whether and to what extent

departure is warranted rests with the sentencing court on a case-specific basis.”). 

Because, as discussed later, the district court’s departure may be justified as a

guided departure, we need not further discuss unguided departures here. 

B. 

In the instant case, the district court imposed an upward departure based

solely on the defendant’s extensive criminal history, stating, “Based upon

defendant’s prior convictions, two of which would have resulted in a career

offender designation, the Court concludes an upward departure is warranted.” 

We begin by determining whether this was a guided or an unguided

departure. U.S.S.G. § 4A1.3 expressly permits district courts to make upward
 See Stinson v. United States, 508 U.S. 36, 46, 113 S. Ct. 1913, 1919, 123 L. Ed. 2d 598 4

(1993) (“[Guidelines] commentary is binding on the federal courts even though it is not reviewed

by Congress . . . .”). 

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departures if the Guidelines sentencing range “does not adequately reflect the

seriousness of the defendant’s past criminal conduct or the likelihood that the

defendant will commit other crimes.” However, application note 3 to U.S.S.G.

§ 2K2.4 states that the Guidelines in chapters 3 and 4 (including U.S.S.G. §

4A1.3) do not apply to sentences under § 2K2.4, the guideline under which

Simmons was sentenced. Consequently, § 4A1.3 cannot be understood as 4

authorizing or encouraging the court in this case to use Simmons’s criminal

history as the basis for an upward departure. 

An application note to § 2K2.4 states,

A sentence above the minimum term required by 18 U.S.C.

§ 924(c) . . . is an upward departure from the guideline sentence. A

departure may be warranted, for example, to reflect the seriousness of

the defendant’s criminal history, particularly in a case in which the

defendant is convicted of an 18 U.S.C. § 924(c) . . . offense and has at

least two prior felony convictions for a crime of violence or a

controlled substance offense that would have resulted in application

of § 4B1.1 (Career Offender) if that guideline applied to these

offenses.

U.S.S.G. § 2K2.4 comment. (n.1) (2001). 

As noted above, the court chose to make an upward departure because it

concluded that, but for the restriction on applying the career offender guideline
12

(U.S.S.G. § 4B1.1), the defendant would have been subject to a dramatically

longer sentence. We need not review whether the court was correct in its belief

that Simmons technically qualified as a career offender because the plain text of

the application note quoted above encourages an upward departure whenever one

is necessary “to reflect the seriousness of the defendant’s criminal history.” While

a departure based on criminal history is “particularly” appropriate if the defendant

would have qualified as a career offender under § 4B1.1, the departures

recommended by the application note are not limited to such defendants. Instead,

the note encourages courts to grant upward departures based on serious criminal

history, whether or not that criminal history is sufficient to trigger career-offender

sentencing under § 4B1.1. 

The record can fairly be read as indicating the district court’s belief that

Simmons’s criminal history was sufficiently serious as to warrant an upward

departure. Moreover, nothing in U.S.S.G. § 2K2.4 takes an offender’s criminal

history into account; indeed, the Guidelines sentence under this provision is not

even based on an offender’s criminal history category. Consequently, the district

court made an upward departure based on encouraged grounds that had not been

taken into account by the guideline under which the defendant had been sentenced. 
13

This is an unquestionably valid type of upward departure, see supra Section III.A,

and the district court did not abuse its discretion by granting it. 

IV. 

We must now assess whether the extent of this departure was unreasonable. 

“The amount by which a district court departs from the Sentencing Guidelines

need only be reasonable.” Kimball, 291 F.3d at 734. When assessing whether a

district court “depart[ed] to an unreasonable degree from the applicable guidelines

range,” 18 U.S.C. § 3742(e)(3)C) (2001), we review the court’s factual findings

for clear error and their legal conclusions de novo. In reviewing mixed questions

of fact and law, involving the application of the Guidelines to the facts of the case,

we give “due deference to the district court’s application of the guidelines to the

facts.” Id. § 3742(e). 

As we explained in Williams, this “due deference” standard means that 

[w]here a determination turns primarily on the evaluation of facts

(such as a witness’s credibility, intonation, and demeanor) that are

more accessible to the district court than to the court of appeals, we

will defer to the district court’s application of the law to those facts

and apply “clear error” review. Similarly, a case involving

application of a fairly well-understood legal standard to a complex

factual scenario will be considered “primarily factual,” and be

reviewed for clear error. 
14

340 F.3d at 1239. In cases where these special considerations do not apply, the

district court decision is not “due” any deference, and we apply a de novo standard

of review. De novo review is particularly appropriate where “most or all of the

relevant facts are contained in the counts in the indictment for which the defendant

has been convicted or pled guilty,” or any other situation where the district court’s

determination is “best characterized as . . . a legal interpretation” rather than “the

application of a clear-cut standard to a complex set of facts.” Id. at 1239, 1241. 

The district court increased Simmons’s sentence from 60 to 160 months. It

found this to be a reasonable figure because it held that, had the career offender

guideline been applicable to Simmons, he would have been subject to a sentence

of at least 260 months. The fact remains, however, that the Guidelines expressly

prohibited the career offender statute from being applied to Simmons. The

sentence to which an offender would have been subject under a patently

inapplicable guideline is of no relevance to determining the sentence which should

be imposed. Moreover, the Guidelines implicitly prohibit district courts from

considering subsequent Guidelines amendments that result in substantive changes

to the law. See U.S.S.G. § 1B1.11(b)(2) (2001) (“[I]f a court applies an earlier

edition of the Guidelines Manual, the court shall consider subsequent

amendments, to the extent that such amendments are clarifying rather than
15

substantive changes.”). By applying an incorrect legal standard in determining an

appropriate sentence, the district court necessarily abused its discretion. 

Nevertheless, we have the authority to affirm the district court, even if it is

on a ground other than that upon which it based its decision. See Gaston v.

Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363 n.1 (11th Cir. 1999)

(“[W]e may affirm the district court’s judgment on any ground that finds support

in the record.” (quotation marks and citation omitted)). Simmons has an extensive

criminal history, including juvenile delinquency adjudications and adult

convictions for loitering, theft, evading police, reckless driving, receiving stolen

property (four times), armed robbery, aggravated assault, possession of a weapon

during a crime, possession of a weapon without a permit, contempt of court,

possession of a controlled substance, possession of a controlled substance with

intent to distribute, obstructing officers (twice), possession of a sawed-off

shotgun, possession of a firearm by a convicted felon, and criminal trespass. The

district court could reasonably have concluded that, based on this history, he

needed to be incapacitated for an extended period of time, for a total of 160

months. See United States v. Taylor, 88 F.3d 938, 948 (11th Cir. 1996) (“The

sentence imposed by the district court was well under the statutory maximum. In

view of all the circumstances, we conclude that the amount of the district court’s
16

upward adjustment was reasonable and not an abuse of discretion.”). 

Consequently, the upward departure was reasonable, and Simmons’s sentence is 

 AFFIRMED.