1

18 U.S.C. § 1957 provides, in relevant part:

Engaging in monetary transactions in property derived

from specified unlawful activity

(a) Whoever ... knowingly engages or attempts to engage

United States Court of Appeals,

Eleventh Circuit.

No. 94-4614.

UNITED STATES of America, Plaintiff-Appellant,

v.

A. Scott MILLER, Defendant-Appellee.

March 22, 1996.

Appeal from the United States District Court for the Southern

District of Florida. (No. 94-7-CR), Federico A. Moreno, Judge.

Before KRAVITCH, ANDERSON and BARKETT, Circuit Judges.

ANDERSON, Circuit Judge:

The government appeals the sentence imposed on A. Scott Miller

for engaging in monetary transactions in property derived from

specified unlawful activity in violation of 18 U.S.C. § 1957. It

argues that the district court improperly departed from the

sentence range prescribed by the Sentencing Guidelines promulgated

under the Sentencing Reform Act of 1984, 18 U.S.C. §§ 3551-3586.

Because the district court failed to make sufficient findings of

fact to support its departure, we vacate the sentence and remand

the case for resentencing.

I. FACTS

Miller pleaded guilty to a three-count indictment which

included one count of "receiving and depositing" criminally derived

property in violation of 18 U.S.C. § 1957 1 and two counts of
in a monetary transaction in criminally derived

property that is of a value greater than $10,000 and is

derived from specified unlawful activity, shall be

punished as provided in subsection (b).

(c) In a prosecution for an offense under this section,

the Government is not required to prove the defendant

knew that the offense from which the criminally derived

property was derived was specified unlawful activity.

(f) As used in this section—

(1) the term "monetary transaction" means the

deposit, withdrawal, transfer, or exchange, in or

affecting interstate or foreign commerce, of funds

or a monetary instrument ... by, through, or to a

financial institution ..., but such term does not

include any transaction necessary to preserve a

person's right to representation as guaranteed by

the sixth amendment to the Constitution; 

knowingly making false statements to an agency or department of the

United States in violation of 18 U.S.C. § 1001. The receiving and

depositing charge arises out of $42,133 Miller deposited in his

personal bank account on October 19, 1988. These proceeds derived

from the sale of property located in Lauderhill, Florida. In an

agreed statement of facts, Miller admitted that he knew the $42,133

was criminally derived property.

It appears from the agreed statement of facts for sentencing

that Miller had provided legal services to Fabio Enrique Ochoa from

time-to-time since at least 1981, at which time Miller filed

several pleadings for Ochoa in relation to a criminal proceeding in

which Ochoa was involved. As recently as July 23, 1990, Miller's

law firm received $50,000 toward a legal fee for the representation

of Mauricio Ochoa, Fabio's brother. The agreed statement of facts

indicates that Miller was involved with Ochoa at different times

and, perhaps, in different capacities, between 1981 and 1990.
 2

It found that Miller's admitted "willful blindness"

amounted to such knowledge. 

 3

In its Downward Departure Sentencing Order, the district

court stated:

The Court finds that the Sentencing Commission has

not adequately considered the impact of Section 2S1.2

upon an attorney who derives knowledge of the source of

the property through a legitimate attorney-client

relationship. Thus although Scott Miller has had the

offense level enhanced because of his status as an

attorney, it was his position as a criminal lawyer that

allowed him to legitimately represent his clients. 

Therefore, the Court specifically finds that the

guidelines do not address this circumstance to the

appropriate degree, and thus the sentence may be

However, the scope of Miller's legitimate legal representation of

Ochoa is unclear.

At sentencing, the district court computed a base offense

level of 17, as provided by U.S.S.G. § 2S1.2(a) for violation of 18

U.S.C. § 1957. The court increased the base offense level by five

levels based on its finding that Miller knew that the funds were

narcotics proceeds. See U.S.S.G. § 2S1.2(b)(1)(A).2 The court

added another two-level increase for Miller's use of special skill

as a criminal defense attorney in a manner that significantly

facilitated the commission or concealment of the offense. See

U.S.S.G. § 3B1.3. The court then granted a three-level downward

departure for acceptance of responsibility. See U.S.S.G. §§ 3E1.1.

Finally, the court granted Miller a seven-level downward departure

on the grounds that the Sentencing Commission (the "Commission")

failed to adequately consider the impact of U.S.S.G. § 2S1.2(a)

upon an attorney who derives knowledge of the source of the

criminally-derived property through a legitimate attorney-client

relationship.3

 See U.S.S.G. § 5K2.0; 18 U.S.C. § 3553(b).
adjusted to reflect such fact.

As further support for its decision to depart from the

Guidelines, the district court also stated:

[T]he defendant's conduct makes this an atypical case,

outside of the heartland of other cases and thus for

that reason, combined with the mitigating factors

related to the individual, the Court departs downward

from the guidelines. The Court specifically finds that

defendant Miller's conduct significantly differs from

the norm, thereby allowing the Court to exercise its

discretion in departing downward from the guidelines.

Id. This constitutes the district court's entire discussion

of its rationale for departing from the guidelines. 

II. DISCUSSION

 In Sentencing Guidelines cases, we review the district

court's findings of fact for clear error and its legal conclusions

de novo. United States v. Rojas, 47 F.3d 1078, 1080 (11th

Cir.1995). "[T]he issue of whether a district court has the

authority to depart downward from the applicable guideline range in

a particular situation is a question of law subject to our plenary

review." United States v. Costales, 5 F.3d 480, 483 (11th

Cir.1993).

Congress has made clear that a district court has authority to

depart from the applicable guideline sentence range only if "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...." 18 U.S.C. § 3553(b). See also U.S.S.G. § 5K2.0.

We have recognized that "departure is reserved for "unusual' cases

where there is something atypical about the defendant or the

circumstances surrounding the commission of the crime which
significantly differ from the normal or "heartland' conduct in the

commission of the crime." United States v. Gonzalez-Lopez, 911

F.2d 542, 549 (11th Cir.1990).

 We apply a three-step process when reviewing departures under

U.S.S.G. § 5K2.0. United States v. Godfrey, 22 F.3d 1048, 1053

(11th Cir.1994); United States v. Weaver, 920 F.2d 1570, 1573

(11th Cir.1991); United States v. Shuman, 902 F.2d 873, 876 (11th

Cir.1990). First, we review de novo the decision as to whether the

guidelines adequately consider a particular factor. Id. Second,

if the factor was not adequately considered, we examine whether

consideration of this factor is consistent with the goals of the

Sentencing Guidelines. Id. Finally, we review the departure for

reasonableness. Id.

We note ostensible disagreement among panels in this circuit

regarding the second step of the departure analysis. Compare

United States v. Shuman, 902 F.2d 873, 876 (11th Cir.1990), with

United States v. Weaver, 920 F.2d 1570, 1573 (11th Cir.1991).

Under the Shuman line of cases, the second step involves an

evaluation of whether, if adequate consideration was not given to

the factor, consideration of it is consistent with the goals of the

guidelines. 902 F.2d at 876 (citing United States v. Campbell, 878

F.2d 164, 165 (5th Cir.1989)). Under the Weaver line of cases, the

second step involves an inquiry into whether there exists factual

support for the departure (reversing only for clear error). 920

F.2d at 1573 (citing United States v. Diaz-Villafane, 874 F.2d 43,

49-50 (1st Cir.), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107

L.Ed.2d 133 (1989)).
 Panels of this court do not possess the power to disregard

precedent from prior panel decisions. Bonner v. City of Prichard,

661 F.2d 1206, 1210 (11th Cir.1981) (en banc). When there is

ostensibly inconsistent precedent, we " "must resort to common

sense and reason' to determine the appropriate rule of law." Dorse

v. Armstrong World Industries, 798 F.2d 1372, 1376 (11th Cir.1986)

(quoting United States v. Hobson, 672 F.2d 825, 827 (11th

Cir.1982)); Georgia Association of Retarded Citizens, 855 F.2d

794, 797-98 (11th Cir.1988). The most favored means of resolving

ostensibly inconsistent panel decisions is to interpret them

consistently by identifying the common thread tying them together.

United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir.1993) ("[T]he

most favored means of resolving an inconsistency in circuit

precedent is to determine that the inconsistency is more apparent

than real.").

These two lines of cases do not represent diametrically

opposed rules, but rather, refinements of the same general process.

A court should evaluate whether the departure is consistent with

the goals of the guidelines, whether as part of the determination

that the Commission adequately considered a factor, or as a second

step. Likewise, we could not even entertain an argument that the

Commission failed to adequately consider a particular circumstance

if there exists no factual predicate for that circumstance.

Accordingly, we believe the ostensible inconsistency between these

two lines of cases is more apparent than real. We apply both rules

as a matter of common sense and practicality.

 The government argues that the district court erred in
 4

The provision remained in the Omnibus bill which passed the

House on September 11 and October 8, 1986. See 1985-1986 Cong.

Index (CCH) 35,101-102. It was dropped from the bill in

conference, however, and did not appear in the Money Laundering

Control Act which was signed into law as part of Pub.L. 99-570. 

granting the seven-level downward departure. It contends that the

Commission adequately considered a defendant who is also an

attorney and whose position as an attorney aids in his or her

commission of the offense. In particular, it argues that Miller's

status as an attorney was incorporated into the guidelines through

the § 3B1.3 upward adjustment for an abuse of a position of public

or private trust or the use of a special skill in facilitating,

committing, or concealing the offense.

By contrast, Miller argues that the Commission failed to

consider the impact of U.S.S.G. § 2S1.2(a) on an attorney who

derives knowledge of the source of the property through a

legitimate attorney-client relationship. Miller's argument is

essentially as follows. The original version of 18 U.S.C. § 1957,

passed in 1986, did not include any ameliorating provision relating

to legitimate attorney-client relationships notwithstanding its

presence in early versions of the bill.4

 When Congress amended the

statute in 1988, however, the exemption phrase now found in §

1957(f)(1) appeared: "[T]he term "monetary transaction' ... does

not include any transaction necessary to preserve a person's right

to representation as guaranteed by the sixth amendment to the

Constitution."

Sentences for violations of § 1957 are meted out pursuant to

U.S.S.G. § 2S1.2. While conviction for § 1957 does not require

knowledge that the property is from a "specified unlawful
 5

See supra note 1. 

 6

Indeed, the requirement that the defendant had knowledge

that the funds were criminally derived property is one of the

reasons why the base offense level (17) for a § 1957 offense is

so high: "The offense levels are higher than in § 2S1.3 because

of the higher statutory maximum and the added element of knowing

that the funds were criminally derived property." U.S.S.G. §

2S1.2 comment. (backg'd). 

 7The Commission promulgated two clerical amendments in

subsequent years, but they do not affect Miller's argument. As

of November 1, 1989, the Commission amended the statute to

correct minor clerical errors. See Federal Sentencing Guidelines

Manual, Appendix C, amendment 215. As of November 1, 1991, the

Commission added U.S.S.G. § 2S1.2(c) to set forth fines for

organizations. See Federal Sentencing Guidelines Manual,

Appendix C, amendment 422. 

activity,"5 it does require that the defendant knew that the funds

were "criminally derived property." 6 Section 2S1.2 became

effective on November 1, 1987, shortly after the original (1986)

version of § 1957 was enacted. It has not been amended to reflect

the exemption provision added in 1988.7 Thus, Miller argues, the

Commission did not consider the effect that knowledge gained

through a legitimate attorney-client relationship would have on

sentencing.

 Although the parties frame a novel issue, we decline to

decide this question on the record before us because the district

court made insufficient factual findings to support its legal

conclusions. We recently set forth guidelines for district courts

in granting downward departures:

A district court granting a downward departure from the

applicable guidelines should articulate the specific

mitigating circumstances upon which it relies and the reasons

these circumstances are of a kind, or to a degree, not

adequately taken into consideration by the sentencing

commission.

United States v. Baker, 19 F.3d 605, 616 (11th Cir.1994). As we
have made clear, departures pursuant to § 5K2.0 of the Sentencing

Guidelines and 18 U.S.C. § 3553(b) are reserved for unusual cases

which differ significantly from the normal or "heartland" conduct

in the commission of the crime. United States v. Gonzalez-Lopez,

911 F.2d 542, 549 (11th Cir.1990), cert. denied, 500 U.S. 933, 111

S.Ct. 2056, 114 L.Ed.2d 461 (1991). Indeed, the Sentencing

Commission anticipated that cases warranting departure would be

rare. U.S.S.G. Chap. 1, part A, § 4(b); United States v. Godfrey,

22 F.3d 1048, 1053 (11th Cir.1994). Where the grounds for a

departure are not otherwise clear, the district court should

address the four factors relevant to its decision to depart

downward.

In this case, concluding that the district court's analysis

was inadequate, we remand with instructions for the district court

to make explicit findings of fact with respect to the circumstances

warranting a downward departure, to state its reasoning as to

whether the guidelines adequately consider such circumstances, to

state its reasoning as to whether treatment of such circumstances

as grounds for downward departure is consistent with the goals of

the sentencing guidelines, and finally, if the district court's

analysis indicates that departure is appropriate, to state reasons

for the extent of the departure.

 With respect to a possible departure because of Miller's

assertion that he gained his knowledge that the funds were

criminally derived through a legitimate attorney-client

relationship, we note that Miller has the burden of proving, inter

alia, that an attorney-client relationship did exist at specific,
 8

The instant, very limited record is unclear as to the

legitimacy of the apparent attorney-client relationship,

including the extent of Miller's knowledge of Ochoa's illegal

activities and any possible complicity. Miller has the burden of

demonstrating legitimacy and, to this end, further development of

the record may be necessary if Miller is to satisfy his burden. 

Obviously, if the attorney-client relationship was not

legitimate, any departure would not be consistent with the goals

of the guidelines. 

 9

On remand, the district court should consider whether

Miller's guilty plea is relevant to the issue of the relationship

between the $42,133 and the legal representation. See 18 U.S.C.

§ 1957(f)(1) ("The term "monetary transaction' ... does not

include any transaction necessary to preserve a person's right to

representation as guaranteed by the Sixth Amendment to the

Constitution."). 

 10Of course, the district court should make such other

findings and analyses as are appropriate, in addition to those

discussed in this opinion.

We reject Miller's alternative argument in support of

the district court's sentence, namely, that the court erred

in increasing the Base Offense Level by seven levels. 

relevant times, and that such relationship was legitimate. 8 See

United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir.1989) ("The

guidelines contemplate that the government has the burden of

proving the applicability of sections which would enhance the

offense level and the defendant has the burden of proving the

applicability of guideline sections which would reduce the offense

level."); United States v. Taxacher, 902 F.2d 867, 873 n. 9 (11th

Cir.1990) (same). It may also be relevant whether the $42,133 was

a legal fee or, if it was not, whether it bore some other specific

relationship to a legitimate attorney-client relationship.9

Accordingly, we vacate Miller's sentence and remand for

resentencing.10

VACATED and REMANDED.

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