UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 03-4097

LILIANE RENA WILLIAMS,

Defendant-Appellant. 

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

James A. Beaty, Jr., District Judge.

(CR-02-266)

Submitted: June 30, 2003

Decided: July 29, 2003

Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.

Dismissed by unpublished per curiam opinion.

COUNSEL

Louis C. Allen III, Federal Public Defender, Eric D. Placke, Assistant

Federal Public Defender, Greensboro, North Carolina, for Appellant.

Anna Mills Wagoner, United States Attorney, L. Patrick Auld, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Liliane Rena Williams pled guilty to bank robbery, 18 U.S.C.

§ 2113(a) (2000) (Count One), and carrying or using a firearm in a

crime of violence, 18 U.S.C. § 924(c) (2000) (Count Three). She was

sentenced to thirty-three months imprisonment for Count One and a

mandatory consecutive term of eighty-four months imprisonment for

Count Three. The district court declined to depart on the ground of

aberrant behavior. U.S. Sentencing Guidelines Manual § 5K2.20, p.s.

(2002). Williams contends on appeal that the district court’s decision

not to depart downward is appealable because it was the result of

erroneous legal conclusions concerning whether she engaged in "significant planning" and whether she "otherwise used" the firearm when

she pointed it at a teller, and because the court erred in limiting its

determination of whether the case was extraordinary to a consideration of her motive for robbing the bank. We dismiss the appeal for

lack of jurisdiction. 

Section 5K2.20 provides that a departure may be warranted in an

extraordinary case where the defendant’s conduct constitutes aberrant

behavior, which is described in Application Note 1 as "a single criminal occurrence or single criminal transaction that (A) was committed

without significant planning; (B) was of limited duration; and (C) represents a marked deviation by the defendant from an otherwise lawabiding life." The court must thus determine, as a threshold matter,

that the case is extraordinary. USSG § 5K2.20, App. C, amend. 603;

United States v. Castano-Vasquez, 266 F.3d 228, 243 (3d Cir. 2001).

The policy statement sets out a number of factors that the sentencing

court "may consider" in determining whether to depart. These factors

are: "the defendant’s (1) mental and emotional conditions; (2)

employment record; (3) record of prior good works; (4) motivation

for committing the offense; and (5) efforts to mitigate the effects of

the offense." USSG § 5K2.20, comment. (n.2). The policy statement

2 UNITED STATES v. WILLIAMS
also provides that the sentencing court may not depart on the ground

of aberrant behavior if: 

(1) the offense involved serious bodily injury or death; (2)

the defendant discharged a firearm or otherwise used a firearm or a dangerous weapon; (3) the instant offense of conviction is a serious drug trafficking offense; (4) the

defendant has more than one criminal history point . . .; or

(5) the defendant has a prior federal, or state, felony conviction, regardless of whether the conviction is countable under

Chapter Four of the guidelines. 

USSG § 5K2.20. 

Williams had no prior criminal record. She requested a downward

departure for aberrant behavior. With respect to the requirement that

she not have discharged or "otherwise used" a firearm, Williams contended that her conduct did not amount to "more than brandishing,

displaying, or possessing a firearm," which is how the term "otherwise used" is defined in Application Note 1 to § 5K2.20 (using definition in USSG § 1B1.1, comment. (n.1(f)). The district court

determined that Williams’ conduct was a single occurrence of criminal activity and that it was a marked deviation from a previously lawabiding life. However, the court found that Williams’ planning for the

robbery was not insignificant. The court also found that, even if Williams’ planning was not significant, she had not shown extraordinary

circumstances that would warrant a departure because she was not

motivated by mental illness or other mental health problems, but by

a need for money. 

Last, the court determined that Williams had done more than brandish a firearm, that she had "otherwise used" the shotgun when she

pointed it at the teller. Therefore, the court decided that, even if there

was a basis for finding that Williams’ conduct was aberrant behavior,

a departure on that basis was precluded by the language in § 5K2.20.

A district court’s decision not to depart from the guideline range

is not reviewable on appeal except in the "very narrow situation" that

the sentence is imposed in violation of law in that the district court

based its decision on a mistaken view that it lacked legal authority to

depart. United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990);

see also United States v. Carr, 303 F.3d 539, 545 (4th Cir. 2002),

cert. denied, 123 S. Ct. 929 (2003); United States v. Hall, 977 F.2d

UNITED STATES v. WILLIAMS 3
861, 863 (4th Cir. 1992). Williams does not dispute that the district

court understood its authority to depart for aberrant behavior. Instead,

she argues that the district court’s decision not to depart is subject to

review because it was based on three legal errors she claims the court

made in the process of determining that a departure was not warranted: (1) a finding that Williams’ planning was not insignificant, (2)

a finding that a departure was precluded because Williams "otherwise

used" the firearm, and (3) the court’s limiting of its inquiry into

whether the case was extraordinary to a consideration of Williams’

motive for committing the robbery. The government contends that

review is unavailable because the district court understood its authority to depart for aberrant behavior if circumstances warranted and

exercised its discretion in deciding not to depart. We agree. 

The district court decided that Williams’ case was not an extraordinary one in which a departure was appropriate. This determination is

a "threshold matter," see USSG App. C, amend. 603 ("As a threshold

matter, this amendment provides that the departure is available only

in an extraordinary case."); see also United States v. CastanoVasquez, 266 F.3d 228, 234 (3d Cir. 2001) (holding that sentencing

court must decide separately whether case is extraordinary and

whether defendant’s conduct constituted aberrant behavior). This

determination cannot be characterized as a legal error, although Williams attempts to do so by arguing that the court erred in mentioning

only one of the factors listed in Application Note 2 to § 5K2.20. However, the factors listed there are set out as circumstances the court

"may consider." The court’s mention of only one factor does not constitute legal error. Castano-Vasquez, 266 F.3d at 234. Thus, because

the district court found, as a threshold matter, that Williams’ case was

not an extraordinary one where a departure for aberrant behavior was

appropriate, the district court’s exercise of its discretion in deciding

not to depart is not reviewable. 

We therefore dismiss the appeal. We dispense with oral argument

because the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the decisional

process.

DISMISSED

4 UNITED STATES v. WILLIAMS