[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 95-4073 

D. C. Docket No. 94-249-CR-WDF

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

YAHAIRA ONOFRE-SEGARRA,

Defendant-Appellee.

 

 Appeal from the United States District Court 

for the Southern District of Florida

 

(October 24, 1997)

Before TJOFLAT and COX, Circuit Judges, and HANCOCK*, Senior

District Judge.

___________________________________________

*Honorable James H. Hancock, Senior U.S. District Judge for the

Northern District of Alabama, sitting by designation.
 1 Section 5K2.0 states, in part:

Under 18 U.S.C. § 3553(b) the sentencing court may impose a

sentence outside the range established by the applicable

guideline, 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 that

should result in a sentence different from that described.”

United States Sentencing Commission, Guidelines Manual, § 5K2.0

(Nov. 1, 1994). The 1994 guidelines apply to Onofre-Segarra

because they were the guidelines in force at the time of her

sentencing. See United States v. Wilson, 993 F.2d 214, 216 (11th

Cir. 1993).

2

TJOFLAT, Circuit Judge:

The United States appeals the sentence of Yahaira OnofreSegarra on the ground that the district court abused its

discretion when it granted Onofre-Segarra's motion for a downward

departure under section 5K2.0 of the Sentencing Guidelines.1

Because we find that the district court made insufficient factual

findings to support its decision to depart, we vacate the

sentence and remand the case to the district court for a full

hearing on the propriety of a downward departure under section

5K2.0.

As this court explained in United States v. Scroggins, 880

F.2d 1204, 1209 (11th Cir. 1989), "[g]uideline sentencing is an

adversarial process. It envisions a confrontation between the

parties similar to that which occurs at a civil bench trial." 

The district court hears arguments and receives evidence on

disputed legal and factual issues and then "resolves these
 2 Prior to the sentencing hearing, a presentence

investigation report is prepared by the district court's

probation service. The report provides a summary of the facts in

the case and gives a preliminary estimate of the appropriate

sentence under the guidelines. The parties have the opportunity

to object to portions of the report, and the probation officer

determines whether or not to amend the report in response to

those objections. Any issues remaining in dispute are summarized

in the report and then contested in the sentencing hearing

itself. See Scroggins, 880 F.2d at 1209 n.11.

 3 Refuting the argument of Onofre-Segarra's counsel that

the appellee was immature and used bad judgment, the probation

officer who prepared the presentence investigation report wrote,

"[u]nfortunately, the decision to illegally import heroin into

the United States is a sign of a lack of responsibility and bad

judgment, no matter how old, or young, a person may be."

3

disputes by making findings of fact and conclusions of law." Id.

at 1209 n.11 (emphasis added).2

Appellee Onofre-Segarra entered into a plea agreement

whereby she pled guilty to one count of importing heroin, in

violation of 21 U.S.C. § 952(a) (1981 & Supp. 1997). The main

issue presented at her December 9, 1994 sentencing hearing was

whether Onofre-Segarra should receive a downward departure under

section 5K2.0 because her conduct qualified as "aberrant

behavior," as that term has come to be understood by the courts. 

See, e.g., United States v. Withrow, 85 F.3d 527 (11th Cir.

1996)(holding that district courts may make downward departures

"after making a careful factual determination that the

defendant's conduct constituted a single, aberrant act"). The

United States opposed the motion by Onofre-Segarra for a downward

departure under section 5K2.0. Over the Government's objection

and the recommendation of the presentence investigation report,3

however, the district court granted the departure, sentencing
 4 We note that the issue of whether Onofre-Segarra

qualified for a two point reduction for being a "minor

participant" in the crime, in accordance with section 3B1.2(b) of

the Sentencing Guidelines Manual (1994), was also before the

district court. Although no evidence was proffered by OnofreSegarra sufficient to determine the extent of her role in the

crime, the district court granted the adjustment. Cf. United

States v. Gates, 967 F.2d 497, 501 (11th Cir. 1992)(stating that

defendant bears the burden of establishing that he qualifies for

a downward adjustment on the grounds that he was a minor

participant). Because the government did not object to the

district court's ruling, however, the issue is not before this

court and the two-point reduction will stand.

 5 Baker was decided by this court before Onofre-Segarra's

sentencing hearing and served notice to the district court that

downward departures require the articulation of the specific

circumstances warranting the departure.

4

Onofre-Segarra to 33 months rather than to a term within the

guideline range of 70-87 months.4

 

Departures under section 5K2.0 are "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). When a district court finds

that a downward departure is merited, therefore, it must

"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)(emphasis added).5

As the party seeking the adjustment to the sentence, OnofreSegarra had the burden of proving, by a preponderance of the
5

evidence, that she was entitled to the departure. 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. Miller, 78 F.3d 507, 511-12

(11th Cir. 1996)(applying Wilson's logic to a downward departure

case). Although the district court found that Onofre-Segarra

qualified for a downward departure under section 5K2.0, its

decision could not have been based on the evidence presented at

the sentencing hearing because Onofre-Segarra presented

absolutely no evidence. Nor could the district court have based

its decision upon evidence adduced at trial, because OnofreSegarra entered into the plea agreement with the United States

prior to trial. Cf. United States v. Hansley, 54 F.3d 709, 714

(11th Cir. 1995)(sentencing judge may utilize evidence adduced at

trial in determining appropriate sentence under the guidelines). 

In fact, the only information upon which the district court could

have based its decision was the unsubstantiated arguments of

Onofre-Segarra's counsel and the sparse background information

contained in the presentence investigation report. 

In sentencing a defendant under the guidelines, a district

court may consider all relevant information, regardless of its

admissibility under the rules of evidence. See United States v.

Lawrence, 47 F.3d 1559, 1567 (11th Cir. 1995)("[T]he Guidelines
 6 This is particularly true where, as here, the

presentence investigation report recommended that the motion to

depart from the guidelines be denied, and no evidence was

presented by the party moving for the departure to contradict

that conclusion.

6

allow a district court to 'consider relevant information without

regard to its admissibility under the rules of evidence

applicable at trial, provided that the information has sufficient

indicia of reliability to support its probable accuracy.'"

(quoting U.S.S.G. § 6A1.3(a)(Nov 1, 1994))). The arguments of

counsel and the challenged conclusions of the presentence

investigation report, however, are generally an insufficient

basis upon which to depart from the guidelines. See United

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

sentencing hearing defendant's counsel argued that defendant's

plea negotiations demonstrated acceptance of responsibility but

offered no evidence that would establish his qualification for a

reduction under this section." (emphasis added)).6

The paucity of evidence available to the district court is

reflected in its "findings of fact." In contrast to the

"specific mitigating circumstances" mandated by Baker, the vague

statements of the court were either unsupported by any evidence

or irrelevant. The district court stated that it "consider[ed]

the time span between the date [Onofre-Segarra] first sought the

passport to travel and actually participating in this act. Her

age, other factors in the PSI that suggest that she might have

been gullible." In addition, the court seemed to take notice of
 7 The district court may have also considered OnofreSegarra's living conditions, alleged to be less than ideal and a

motivating factor for the crime, as well as the subversive

influence of "Jose Albert." No proof, however, was presented to

the court to substantiate the bald assertions of Onofre-Segarra's

counsel. The presentence investigation report was similarly

silent on these matters.

 8 Had the district court made specific findings of fact,

it still would have been required to present its reasoning for

why the guidelines did not sufficiently account for those

circumstances. See Baker, 19 F.3d at 616. The district court

suggested that it was departing for the reasons stated in

Andruska, a case decided by the Seventh Circuit. See United

States v. Andruska, 964 F.2d 640 (7th Cir. 1992). The case was

7

the fact that Onofre-Segarra's education ended at the tenth

grade.

First, the time span between Onofre-Segarra's application

for, and subsequent receipt of, her United States passport, and

her trip to Colombia to retrieve illegal drugs, was not

demonstrated to the court. The only support for this claim was

the argument of Onofre-Segarra's counsel. Second, OnofreSegarra's age at the time of the crime, nineteen, is neither

remarkable for this type of crime, nor relevant. See U.S.S.G. §

5H1.1 (Nov. 1, 1994)("Age (including youth) is not ordinarily

relevant in determining whether a sentence should be outside the

guideline range”). Onofre-Segarra's educational background,

although regrettable, is similarly unremarkable. Finally, the

district court's blanket reference to "other factors in the PSI

that suggest that she might have been gullible" neither satisfies

the specificity required by Baker nor demonstrates that OnofreSegarra merited a downward departure.7

 "Gullibility" is not a

ground for departure.8
proffered by Onofre-Segarra's counsel as support for its

proposition that "spontaneity" and "thoughtlessness" were key to

a court's finding of aberrant behavior, and that Onofre-Segarra's

behavior met that test. Cf. Withrow, 85 F.3d at 531 (holding

that defendant's behavior was not thoughtless or spontaneous

where defendant had the time to consider his actions while

driving around a parking lot looking for a car to steal, despite

the fact that the act was inconsistent with his life taken as a

whole). Ironically, the Seventh Circuit in Andruska actually

vacated a sentence where the district court erroneously departed

downward from the guidelines. See Andruska, 964 F.2d at 644-46. 

In language equally appropriate here, the court wrote:

We cannot countenance a procedure by which judges,

dissatisfied with the stricture of the Guidelines in a given

case (perhaps, at times, justifiably so), can fashion

sentences they deem more appropriate through an overly

expansive interpretation of "aberrant behavior." Whatever

one's view of the sentencing consistency achieved by the

guidelines[,] the guidelines seek to end disparity, and that

goal would be undermined if the presumptive ranges could too

easily be circumvented.

Id. at 646 (citations omitted).

8

The record indicates that the district court was generally

dissatisfied with the sentence mandated by the guidelines for

crimes such as Onofre-Segarra's. The district court stated, "I

guess the word is out that when I get these kinds of cases;

especially with people with this age; no prior history, a ten

year sentence does not sit well with me; what am I going to do." 

A court may not depart from the sentencing guidelines, however,

merely because it believes that the sentence mandated is

excessive. United States v. Godfrey, 22 F.3d 1048, 1058 (11th

Cir. 1994). Absent sufficient evidence for the district court to

make findings of fact and conclusions of law demonstrating just

cause for a departure, the district court is bound to impose a

sentence within the guidelines, whether the guideline sentence
9

sits well with it or not. By ignoring both the guidelines and

this court's precedent, and thus failing to conduct an adequate

sentencing hearing, the district court did nothing but impose

additional costs on the judicial system and uncertainty on

Onofre-Segarra.

For the reasons stated above, we VACATE the sentence of the

district court and REMAND the case for a new sentencing hearing. 

At the sentencing hearing, if Onofre-Segarra presents evidence in

support of a downward departure under section 5K2.0 and the

district court finds that a departure is warranted, the court

shall then make explicit findings of fact with regard to the

circumstances meriting the departure, state whether departure

under such circumstances is consistent with the guideline's

goals, and, finally, justify the extent of the departure.

SO ORDERED.