United States of America v. Lisa Ann Minutoli

1
PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 02-3108
UNITED STATES OF AMERICA
v.
LISA ANN MINUTOLI,
Appellant
APPEAL FROM THE UNITED
STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF
PENNSYLVANIA
D.C. Crim. No. 01-cr-00176
District Judge: The Honorable Donetta
W. Ambrose
Argued: February 25, 2004
Before: RENDELL, BARRY, and
FISHER, Circuit Judges
(Opinion Filed: July 8, 2004 )
Stanton D. Levenson, Esq. (Argued)
1715 Gulf Tower
Pittsburgh, PA 15219
Attorney for Appellant
Mary Beth Buchanan
United States Attorney
Office of the United States Attorney
Bonnie R. Schlueter, Esq.
Michael L. Ivory, Esq.
Kelly R. Labby, Esq. (Argued)
633 U.S. Post Office & Courthouse
Pittsburgh, PA 15219
Attorneys for Appellee
OPINION OF THE COURT
BARRY, Circuit Judge
We are called upon to decide
whether we have jurisdiction to review a
district court’s discretionary refusal to
downward depart from the applicable
Sentencing Guideline range when that
refusal is based in whole or in part on an
alleged mistake of fact. The well-
established precedent of this Court
mandates the answer to this question, and
the answer is a ringing “no.”
I. INTRODUCTION
On August 29, 2001, a federal
grand jury returned a two-count indictment
against Lisa Ann Minutoli (“Minutoli”).
Count One charged Minutoli with
possession with intent to distribute a
mixture and substance containing a

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d e t e c t a b l e a m o u n t o f 3 , 4 -
m e t h y le n e d i o x y m e t h a m p h e t a m i n e
(MDMA), in the form of “Ecstasy” tablets,
in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C); and Count Two charged
unlawful importation into the United
States of said tablets, in violation of 21
U.S.C. §§ 952(a) and 960(b)(3). M inutoli
pled guilty to Count Two, and Count One
was subsequently dismissed.
It was not disputed that under the
United States Sentencing Guidelines
(USSG), Minutoli’s base offense level was
29 and her criminal history category was I,
resulting in a range of 87-108 months’
imprisonment. Prior to sentencing,
however, Minutoli moved for a downward
departure, based on reduced mental
capacity (USSG § 5K2.13) and coercion
and duress (USSG § 5K2.12), and for a
two-level reduction in her offense level as
a minor participant. (USSG § 3B1.2(b)).
The District Court denied these requests
and, on July 25, 2002, sentenced Minutoli
to 87 months’ imprisonment, to be
followed by three years’ supervised
release. In denying the downward
departure, the District Court stated, in part:
[W]hile I recognize my
ability to depart under
5K2.12, without threat of
physical injury resulting
from unlawful actions of a
third party, which I don’t
believe was in the testimony,
or substantial damage to
property resulting from
unlawful action of a third
party, the coercion and
duress does not rise to the
l e v e l t h a t w a r r a n t s
departure. (emphasis
added).
In denying her request for an adjustment
for minor role, the District Court stated:
My understanding of this
case and what I believe has
been demonstrated by the
e v i d e n c e is that t h e
defendant was not just a
mere, to use an adjective,
courier. Her importance to
the success of the venture
was vital.
* * *
But, as I indicated, I do not
believe, based on the
evidence, that you were a
minor participant because of
your importance, your
knowledge of these – the
nature and scope of the
enterprise.
Minutoli raises two issues on
appeal. First, she contends that the District
Court made a factual error in concluding
that the testimony at the sentencing
hearing did not support a finding of
physical threats and, thus, she was wrongly
denied a downward departure under §
5K2.12. Second, she contends that as a
“mere” drug courier, she was entitled to a
downward adjustment for her minor role in

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the offense.1 We will affirm the judgment
and sentence.
II. BACKGROUND
Sometime in the spring of 2001,
Minutoli, a long-time drug user, was
recruited as a drug courier by a woman
named Christine Segetti, whom she had
met through her personal drug dealer.
Segetti offered Minutoli $20,000, in return
for which she traveled from Los Angeles
to Paris and then to Amsterdam, where she
was given Ecstacy tablets by a man named
Joseph, and returned with the drugs to
New York City.2 While in New York City,
she gave the drugs, minus a small portion
for herself, to one Thomas-Elan. After
spending about a week-and-a-half with
Thomas-Elan and Segetti, she returned to
Los Angeles, where she met a man she
knew as David, but whose name was, in
fact, Elly, and with whom she carried on a
romantic relationship for four months.
Soon after they met, David
informed Minutoli that the organization
with which they were affiliated was an
international drug ring and that he planned
to break away and begin his own
smuggling operation. Thus, in June 2001,
David and Minutoli traveled to Tijuana,
Mexico, where they met with persons from
several countries and planned the
operation, although Minutoli disclaimed
any role in the planning. After returning
from Tijuana, David told Minutoli that she
was to go to Germany and transport drugs
back to the United States. Minutoli did not
want to make the trip and argued with
David about it, angering him to the point
that he threw a car stereo at her. When
David threatened to kill her, she agreed to
go. The night before she left, and to
assure that she would do what she had
agreed to do, David placed his gun on top
of a bedroom dresser before getting into
bed with her. David was often verbally
abusive to her, physically threatened her,
and told her that he had killed people
before. Minutoli felt trapped by him both
physically and financially, in part because
he continuously provided drugs to her,
escalating her addiction. In sum, she
claimed, he “broke” her.3
1The District Court carefully
considered this request; discussed the
factors we deemed important in United
States v. Headley, 923 F.2d 1079 (3d Cir.
1991), and United States v. Isaza-Zapata,
148 F.3d 236 (3d Cir. 1998); and
correctly determined that an adjustment
for minor role was not warranted. The
correctness of that determination is
underscored by our subsequent decision
in United States v. Rodriguez, 342 F.3d
296 (3d Cir. 2003). We see no reason to
discuss the minor role contention further.
2Minutoli testified that she only
received $10,000, and claims that that
was later stolen from her by Segetti.
3This testimony was elicited at
sentencing from M inutoli and from Dr.
Lawson Bernstein, a forensic
neuropsychiatrist. Dr. Bernstein

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On July 24, 2001, David drove
Minutoli to the Los Angeles airport and
warned her that people would be watching
her while she was in Germany. Upon her
arrival in Germany, she checked into a
hotel and informed her contact in
Amsterdam, a man named Daniel, of her
location. Daniel provided her with money
for her hotel and periodically stopped by to
check on her. Additionally, David phoned
her nearly every day. The day before her
return to the United States, Daniel
provided her with a suitcase for the trip.
Upon her arrival at the Pittsburgh
International Airport, Minutoli was
questioned and selected for examination
by a United States Customs Inspector.
When asked to open the suitcase Daniel
had provided to her, she claimed that she
had forgotten the combination to the lock.
After obtaining verbal permission, the
Inspector pried the suitcase open. In plain
view lay numerous plastic bags containing
white tablets. These tablets, numbering
69,805, were MDM A or “Ecstasy,” with
an estimated street value of between
$1,396,100 and $2,094,150. Found in
Minutoli’s other bags were a business
diary and a spiral-bound notebook. The
business diary contained a list of
controlled substances with monetary
amounts next to them, and the spiral-
bound notebook contained several pages of
individuals’ names with monetary amounts
next to them. The notebook list appeared
to be a record of drug debts.
III. DISCUSSION
It is well-established in this Court
that we lack jurisdiction to review the
merits of a district court’s discretionary
decision to refuse a downward departure
under the Sentencing Guidelines once we
determine that the district court properly
understood its authority to grant a
departure:
If we determine the district
court was aware of its
authority to depart from the
Guidelines, and chose not
to, we are without power to
inquire further into the
merits of its refusal to grant
[the defendant’s] request.
See U nited States v.
Denardi, 892 F.2d 269, 272
(3d Cir. 1989). Stated
di ff er en tly, w e h a v e
jurisdiction to dec ide
whether a sentencing court
erred legally when not
m a k i n g a r e q u e s t e d
discretionary downward
departure, but we cannot
hear a challenge to the
admitted on cross-examination that his
diagnosis and conclusion were almost
exclusively based upon representations
made to him by Minutoli, and cited to her
disclosures that David provided her with
drugs, coerced her into degrading sexual
practices, verbally abused her, made her
financially dependent upon him, and
implied “physical harm in a variety of
actions.”

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m e r i t s o f a
sentencing court’s
d i s c r e t i o n a r y
decision not to depart
downward from the
Guidelines. Id.
United States v. Georgiadis, 933 F.2d
1219, 1222 (3d Cir. 1991); see also, e.g.,
United States v. Gori, 324 F.3d 234, 239
(3d Cir. 2003); United States v. Powell,
269 F.3d 175, 178-80 (3d Cir. 2001);
United States v. Stevens, 223 F.3d 239,
247-48 (3d Cir. 2000); United States v.
Evans, 49 F.3d 109, 111 (3d Cir. 1995);
United States v. Mummert, 34 F.3d 201,
205 (3d Cir. 1994); United States v.
Gaskill, 991 F.2d 82, 84 (3d Cir. 1993);
United States v. Love, 985 F.2d 732, 734,
n.3 (3d Cir. 1993); United States v.
Higgins, 967 F.2d 841, 844 (3d Cir.
1992).4 The Courts of Appeals, virtually
unanimously, accept this general rule
whether that rule be framed in
jurisdictional terms, as our cases frame it,
or in terms of unfettered discretion where
there has not been an incorrect application
of the Guidelines within the meaning of 18
U.S.C. § 3742.
The District Court understood its
authority to depart, and there was nothing
complicated or ambiguous about the
Court’s statement: “I recognize my ability
to depart.” We could say, and it would not
be the least bit facile to do so, that the
District Court did precisely what we have
encouraged district courts to do, i.e.
indicate an awareness of the ability to
depart, and that, therefore, under our well-
established precedent, we lack jurisdiction
to review the discretionary denial of the
departure.5 Game, set, and match.
But, says the dissent, the District
Court did not mean what it said. Rather,
the argument goes, the Court was being
disingenuous because it “was actually
concluding” (emphasis added) “that it
lacked the authority to [depart] based on
the facts of this case.” Accordingly, the
dissent continues, “the sentence imposed
‘resulted from’ an incorrect application of
the Guidelines, and we can review it
4Parenthetically, if, as the dissent
states, only a fraction of the numerous
appeals we decide involving jurisdiction
to review denials of downward
departures have resulted in precedential
opinions, it is because our law in this
area is settled, not because it is
underdeveloped. And, we note, the cases
the dissent briefly synopsizes in note 4
almost without exception recite our well-
settled law in this area.
5While district courts need not utter
the magic words, “I recognize I have
authority to grant the downward
departure,” we have strongly encouraged
them to do so, in order both to simplify
our inquiry and to eliminate any
ambiguity. See Georgiadis, 933 F.2d at
1223. We reiterate this encouragement
whenever guideline sentencing is
discussed at such events as our Court’s
bench/bar conferences.

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pursuant to 18 U.S.C. § 3742(a)(2).”
Dissent at 1. Indeed, concludes the
dissent, “we can, and should” assume
jurisdiction over all appeals in which it is
alleged that the District Court made a
clearly erroneous factual determination in
the course of denying a discretionary
downward departure, for we must assure
that the District Court accurately
understood and correctly determined the
facts of the case. Completing the circle, an
erroneous factual finding is an incorrect
application of the guidelines that can be
reviewed. It bears repetition that the
alleged error here was not whether the
District Court mistakenly believed it
lacked the authority to depart but whether,
at the sentencing hearing, there was
testimony of threats of physical injury, a
paradigm factual inquiry.
While we have not explicitly stated
that we lack jurisdiction to review the
allegation of a factual error in the course
of a discretionary refusal to depart, that
conclusion is surely implicit in our cases.
Moreover, we reject out of hand the
dissent’s statement that “our decision in
[United States v.] McQuilkin[, 97 F.3d
723 (3d Cir. 1996)] has already placed us
on that side of the issue.” Dissent at 13.
Indeed, says the dissent, McQuilkin is “the
case that most clearly stands for the
proposition that we can review for clear
error in a case like this one.” Id. at 13.
But McQuilkin was not a case “like
this one.” In McQuilkin, the District Court
refused to grant a discretionary downward
departure for extraordinary physical
impairment, finding that the defendant’s
“condition was ‘not that type of an
impairment so severe and complete that
the downward departure [was] ...
warranted.’” Id. at 730. Then Judge, now
Chief Judge, Scirica, writing for the
majority, explained that this statement
could mean one of two things: either “that
Mc Quilkin’s impairment was not
extraordinary enough to allow the court to
depart under the authority of § 5H1.4; or
that the nature of the impairment was
sufficiently extraordinary to allow the
court to depart, but that the court elected
not to depart on this occasion.” Id. Judge
Scirica interpreted the statement to mean
that the District Court thought that
McQuilken’s condition – a left arm injury,
and a congenital defect in his left eye – did
not qualify him for the requested
departure. There was no question that
McQuilkin actually had that condition; the
only question was whether that condition
was of the type that empowered the
District Court to grant the departure.
Thus, the District Court’s legal conclusion
about its authority was at issue, not
whether particular facts existed or whether
its factual finding that McQuilkin was not
as impaired as he claimed was correct.
Parenthe tic all y, the dis sent
attributes great significance to the
McQuilkin Court’s use of the phrase “clear
error.” Because we used that phrase, the
dissent argues, we “obviously were not
reviewing a purely legal conclusion.”
Dissent at 9. It is fair to say that, given the
legal conclusion we were reviewing, to
have invoked clear error as to the standard

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of review was, at best, confusing. But if
“clear error” was inadvisedly used in
McQuilkin, that error has not been
repeated in any one of numerous
precedential opinions in this area that have
followed.
McQuilkin is but one of a number
of our cases cited by the dissent to support
a finding of jurisdiction to review denials
of requests for downward departures.
Without exception, however, in each case
in which jurisdiction was found, it was
because of a legal rather than a factual
conclusion. See, e.g., United States v.
Dominguez, 296 F.3d 192 (3d Cir. 2002)
(finding jurisdiction to review a refusal to
depart downward based on district court’s
erroneous legal conclusion that it lacked
jurisdiction to consider the requested
departure); United States v. Castano-
Vasquez, 266 F.3d 228 (3d Cir. 2001)
(district court adopted the proper legal
s t a n d a r d / a n a l yt i c al c o n s t r u ct f or
interpreting and applying newly enacted
USSG § 5K2.20 and, citing McQuilkin,
made clear that “[w]e lack jurisdiction to
review a refusal to depart downward when
the district court, knowing it may do so,
nonetheless determines that departure is
not warranted”); United States v. Bierley,
922 F.2d 1061 (3d Cir. 1990) (finding
jurisdiction because district court’s
decision not to depart was predicated on
legally erroneous impression that it did not
have authority to depart). As the First
Circuit observed, “in the context of
departures, the touchstone of appealability
is a mistake of law.” United States v.
Dewire, 271 F.3d 333, 337 (1st Cir.
2001).6
At bottom, then, the dissent is left
6An earlier First Circuit case explained
when an appeal does and does not lie:
If the judge sets differential
factfinding and evaluative
judgments to one side, and
says, in effect, “this
circumstance of which you
speak, even if it exists, does
not constitute a legally
sufficient basis for
departure,” then the
correctness of that
quintessentially legal
determination may be
tested on appeal. But if the
judge says, in effect, either
that “this circumstance of
which you speak has not
been shown to exist in this
case,” or, alternatively, that
“while this circumstance of
which you speak might
exist and might constitute a
legally cognizable basis for
a departure in a theoretical
sense, it does not render
this particular case
sufficiently unusual to
warrant departing,” then, in
either such event, no
appeal lies.
United States v. Pierro, 32 F.3d 611, 619
(1st Cir. 1994).

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with United States v. Sammoury, 74 F.3d
1341 (D.C. Cir. 1996), the case, apart from
McQuilkin, on which it principally relies.
To be sure, the Sammoury Court
concluded that if a discretionary refusal to
depart is based on a clearly erroneous
factual mistake, that decision is reviewable
on appeal. It is just as surely wrong, and
has not once been cited for this novel
conclusion, much less followed, by any
Court of Appeals. Indeed, the one Court
of Appeals that has even discussed this
conclusion has explicitly and persuasively
rejected it. Dewire, 271 F.3d 333. We
cannot say it better than that Court said it:
The reasoning in Sammoury
was based on a conflation of
18 U.S.C. §§ 3742(a)(2) and
(e)(2), which authorize
review of a sentence based
on an incorrect application
o f t h e S e n t e n c i n g
Guidelines, with section
3742(e)’s mandate that
appellate courts are to
“accept the findings of fact
of the district court [on
sentencing matters] unless
they are clearly erroneous” .
. . We believe that
Sammoury misapprehends
the difference between a
factually correct application
of the sentencing guidelines,
to which a defendant is
entitled, and the award of a
discretionary departure, to
which he is not. An
otherwise proper sentence is
not a misapplication of the
S e n t e n c in g G u i d e l in e s
simply because the district
court, as a matter of
discretion, refuses to impose
a lesser sentence than the
law authorizes, even if its
factual reasons for doing so
are mistaken.
Dewire, 271 F.3d at 338-39 (quotation,
citations and note omitted).
The Fourth Circuit has also rejected
an exception for alleged factual mistakes
to the rule that “the only circumstance in
which review is available is when the
district court mistakenly believed that it
lacked the authority to depart.” United
States v. Underwood, 970 F.2d 1336, 1338
(4th Cir. 1992); see also United States v.
Matthews, 209 F.3d 338, 352-53 (4th Cir.
2000). The Seventh Circuit concurs: “[A]
determination by the sentencing judge that
the facts of a case do not support a
downward departure is not reviewable on
appeal.” United States v. Steels, 38 F.3d
350, 352 (7th Cir. 1994).
The dissent concedes this much:
“we cannot review a purely discretionary
refusal to depart . . . where the court
correctly determines the relevant facts and
applies the appropriate Guideline
principles” and where it is “clear that the
sentence did not result from the allegedly
mistaken factual finding.” Dissent at 3-4,
11. But would we not have to review to
determine if it was “clear” that the facts
were correctly determined or, as the

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dissent phrases it, to see if the District
Court had an “accurate perception of the
facts”? Indeed, would we not, then, be
addressing the merits of the departure
request itself even before we are able to
determine that we have jurisdiction to
address the merits? See Mummert, 34
F.3d at 205.
It does not require any great leap of
faith to believe that were the dissent to
carry the day, there will nary be an appeal
from the denial of a downward departure
that will not contain an allegation of
factual error. It also does not require any
great leap of faith to predict that district
courts may well eschew explanations for
their refusals to depart and simply state
that they are denying departures on
discretionary (as opposed to legal)
grounds, while recognizing their authority
to grant those departures. As the Dewire
Court put it:
The precedents to which we
adhere in today’s decision
rest on sound polic y
grounds. Because a trial
court’s refusal to depart is
inherently discretionary and
fact-based, a rule contrary to
our precedent would invite
f r i v o l o u s a p p e a l s ,
discourage trial judges from
explaining a refusal to
depart, and require this court
to second-guess, on a cold,
and often factually dense
record, the su bjecti ve
influence that a questionable
fact may have exerted on a
tri a l j u d g e ’ s ultimate
sentencing decision.
Dewire, 271 F.3d at 339-40 (notes
omitted). The Court illustrated the last
point: if, for example, a defendant shows
that one of a trial judge’s three reasons for
refusing to depart was wrong, the appeals
court would have to consider whether
either of the other two reasons would have
been sufficient and the degree to which
that reason influenced the judge’s
thinking, vitiating the broad discretion
granted to sentencing judges.
Returning to where we began, our
precedent and sound policy reasons
mandate the conclusion that where a
district court allegedly made a mistake of
fact when, in the exercise of its discretion,
it refused to grant a request for a
downward departure, while aware of its
authority to grant that request, we lack
jurisdiction to review that decision.
IV. CONCLUSION
Because the District Court correctly
denied an adjustment for minor role in the
offense, we will affirm the judgment and
sentence. We lack jurisdiction to review
the denial of the request for a downward
departure.

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[US v. Minutoli, 02-3108 (2/25/04)]
RENDELL, Circuit Judge, Dissenting.
The line between an unreviewable
discretionary refusal to depart and a legal
or fact-based determination that the court
lacks the authority to depart in a given case
is often hard to discern. This is especially
so given the language that district courts
are routinely using in explaining their
sentencing decisions. The District Court
in the instant case made the following
statement regarding the departure under §
5K2.12 of the Sentencing Guidelines:
And with the coercion and
duress, additionally, while I
recognize my ability to
depart under 5 K 2 . 1 2 ,
without threat of physical
i n j u ry resulting fro m
unlawful actions of a third
party, which I don’t believe
was in the testimony, or
substantial da m age to
property resulting from
unlawful action of a third
party, the coercion and
duress does not rise to the
l e v e l t h a t w a r r a n t s
departure.
In finding that we lack jurisdiction, the
majo rity focuse s on th e Co urt’s
acknowledgment of its “ability to depart,”
concluding that the denial in this case was
discretionary. I, on the other hand, believe
that the District Court’s determination was
based on its erroneous factual finding that
there was no record evidence of threats of
physical injury or physical damage to
property. Therefore, rather than exercising
its discretion, I submit that the Court was
actually concluding that it lacked the
authority to grant a § 5K2.12 departure
based on the facts of this case.
Reading the Court’s reasoning in
toto, it becomes apparent that the District
Court’s statement regarding its “ability” to
depart was not a legal conclusion; rather,
the statement was a reference to the fact
that the departure provision for coercion or
duress in § 5K2.12 was potentially
applicable here. However, the Court went
on to conclude that the provision was not
applicable, based on the lack of testimony
regarding a factor that constitutes a
prerequisite to its application. But, as
Minutoli correctly points out, such
testimony was presented. Accordingly, the
sentence imposed “resulted from” an
incorrect application of the Guidelines,
and we can review it pursuant to 18 U.S.C.
§ 3742(a)(2).
Thus, I disagree with the majority’s
conclusion that we cannot review the
denial of a departure in a case such as this,
where the District Court acknowledged its
general power under the Guidelines but
then concluded that the case before it was
not one in which a departure was
authorized. In fact, I find a statutory
foundation, as well as a basis in our own
jurisprudence, for reviewing the factual
findings supporting such a conclusion for
clear error. Additionally, I derive
guidance and support for this view in the

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well-reasoned decisions of some of our
sister courts of appeals that have
confronted this issue. Based on my
reading of these cases, I conclude that we
can, and should, assume jurisdiction over
appeals like this one, involving allegations
that the district court based its denial of a
departure on clearly erroneous factual
findings.
I.
I will begin by reviewing the
statutory basis for our jurisdiction over
criminal appeals challenging sentencing
decisions, positing when and how we
should exercise our jurisdiction in cases
involving denials of downward departures.
Then, in Parts II and III, I will discuss the
case law that supports this reasoning.
Under 18 U.S.C. § 3742(a)(1) and
(2), we are empowered to review sentences
that are imposed “in violation of law” or
“as a result of an incorrect application of
the sentencing guidelines.” Minutoli does
not contend that her sentence violates any
law under (a)(1). Rather, she argues that
the District Court incorrectly applied the
Sentencing Guidelines in that it clearly
erred when it considered whether certain
facts were present in order to qualify her
for a departure under the pertinent
Guideline provision, specifically, whether
the offense was caused by coercion or
duress as contemplated by § 5K2.12 of the
Guidelines. That provision notes that this
departure is reserved for cases in which “a
threat of physical injury, substantial
damage to property or similar injury
resulting from the unlawful action of a
third party” caused the defendant to
commit the offense, but where the
circumstances did not amount to a
complete duress defense. The record
contained evidence that Minutoli’s
boyfriend threw a stereo at her, threatened
to kill her if she would not transport the
drugs, informed her that he would have her
followed throughout her trip to Europe,
and intimidated her with a gun in their
bedroom the night before she left. Yet the
District Court ignored this evidence,
essentially saying that it was not there.
Therefore, our jurisdiction to
review this case is based on § 3742(a)(2).
This is because when a district court
makes an erroneous factual finding that is
relevant to its determination as to whether
the departure provision applies, the
sentence has necessarily been imposed as
a result of an incorrect application of the
Guidelines. Here, the District Court
incorrectly ignored evidence relevant to
the application of the Guideline provision
concerning coercion and duress. How can
the Guideline have been properly applied
in Minutoli’s case where the District Court
made an erroneous factual finding that
resulted in the Guideline’s not being
applied at all, whereas a correct finding
could have rendered the coercion or duress
departure provision applicable to her
situation? Under the statutory review
authority contained in § 3742(a)(2), we
have jurisdiction to monitor the District
Court’s application of the Guidelines, and
we should do so here.
The majority seeks to draw a bright

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12
line between legal and factual errors, but
such a distinction has no significance
when considering the statutorily-defined
bounds of our jurisdiction. The statutory
power to review simply is not limited to
cases involving challenges to a district
court’s legal conclusions. Rather, we are
to review if there appears either a violation
of law or an incorrect application of the
Sentencing Guidelines. The statute does
not limit our jurisdiction in situations of
“incorrect application” in the way the
majority suggests; it does not remove from
the scope of our review power situations in
which the incorrect application of the
Guidelines has occurred because of an
erroneous factual finding. The majority
would read such a caveat into the statute,
but it just is not there.7
This does not mean that all
departure challenges are reviewable. For
instance, § 3742(a) does not give us
jurisdiction to review in a case where a
defendant has succeeded in obtaining a
downward departure, but argues that the
departure should have been larger than it
was. There really is no correct or incorrect
way to apply the Guidelines once a
departure provision is deemed satisfied in
a particular case, and the district court
clearly does have discretion to depart from
the relevant range to the degree it sees fit.
And, we cannot review a purely
discretionary refusal to depart8 where the
7At least some of the discord between
the majority’s position and my own
seems to arise from our differing views
regarding what it means to “apply” the
Guidelines. The majority is correct that,
in some sense, the District Court here
“applied” the Guidelines correctly,
insofar as it correctly identified the
relevant departure provisions, and
properly understood the factors that a
defendant must prove before a district
court is free to consider granting a
departure under that provision.
However, beyond identifying the correct
legal standards, I believe that the proper
“application” of the Guidelines must also
include an accurate understanding of the
facts that are pertinent to the analysis in
which the court must engage when
considering the relevant provision. In
order to correctly apply the Guidelines to
a given case, a district court must first
identify the proper provisions of the
Guidelines, and then it must consider the
applicability or “fit” of those provisions
in light of the correctly-determined facts
of the case. In other words, the court
must find the facts correctly, then
correctly apply the appropriate Guideline
to those facts.
8By “purely discretionary refusal to
depart” I mean a case in which the
district court finds that the facts do
satisfy the relevant Guideline provision,
such that the court has the authority to
depart in the particular case before it, but
where the court exercises its discretion in
deciding not to grant the departure for
some other reason. An example of this,
based on a variation of the facts of this
case, would be a case in which the
defendant presents significant evidence

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13
district court’s view as to its legal power to
depart under the Guidelines was correct –
in other words, where the court correctly
determines the relevant facts and applies
the appropriate Guideline principles, but
declines to depart. See United States v.
Ruiz, 536 U.S. 622, 627 (2002) (listing
cases from every court of appeals reaching
this conclusion). Similarly, where a
district court does make a legal or factual
error, but nonetheless makes clear that the
sentence did not result from that error
because, even if the departure provision
“fit,” the court would not be inclined to
grant it, we could not exercise our power
of review. But we can, and should, review
refusals to depart where the district court
makes an error in applying the Guidelines,
whether due to an erroneous factual
determination or a misapplication of law to
the facts, whereby the district court
mistakenly concludes that it is without the
specific authority to depart in the case
before it, and the sentence has been
imposed as a result of that error. Such
cases fall squarely within § 3742(a)(2).
The Guidelines grant district courts
the authority to depart in cases where the
facts “fit” within one of the relevant
provisions, such as the provisions of
Chapter 5 implicated in this case. Here,
under § 5K2.12, the trial court only has the
authority to depart downward if the
situation involves threats of physical injury
or substantial property damage, and if
those threats caused the defendant to
commit the relevant offense. So where the
situation does not involve any threats of
that sort, a district court does not have the
power to invoke § 5K2.12 and depart
downward.
Here, the Court made a clearly
erroneous factual finding when it stated
that there was no testimony of physical
threats or violence in the record. As noted
above, both Minutoli and Dr. Bernstein
testified regarding various instances of
threats and violence that occurred in the
days leading up to Minutoli’s trip. While
there might be legitimate reasons for
denying a departure in this case, even in
the face of these threats and acts of
violence, it appears as though the District
Court ignored or forgot about this
testimony altogether and based its ruling
on the lack of such evidence.
Accordingly, we have jurisdiction to
review under § 3742(a)(2).
The majority’s fear that a finding of
jurisdiction here would force us to
constantly review the merits of district
court rulings in order to determine our
jurisdiction is unfounded. We are already
in the business of doing so, to a certain
extent, every time we examine a district
of threats or physical violence, leading
the district court to conclude that the
defendant qualifies for a departure under
§ 5K2.12. In such a case, the court
would recognize its specific authority to
depart for that particular defendant, but
could discretionarily refuse to do so
simply because the defendant seems like
a “bad” person, or for any number of
other reasons.

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14
court’s sentencing ruling to decide whether
it was an exercise of discretion or a legal
determination regarding the court’s power
to depart or to apply a given Guideline
provision. Looking out for clearly
erroneous factual determinati o ns,
explicitly made by the sentencing court, in
order to be certain that the sentence did not
“result from” an incorrect application of
the Guidelines, is no more than a necessary
concomitant of our obligation to ensure
that we have jurisdiction where it is
precisely defined. And, we routinely do
this in other types of cases as well. Cf.
Drakes v. Zimski, 240 F.3d 246, 247 (3d
Cir. 2001) (holding that “we have
jurisdiction to determine our jurisdiction”
under a provision of the Immigration and
Nationality Act that prevents our review of
appeals by aliens who are removable based
on aggravated felony convictions, and
reviewing the facts presented to determine
whether the petitioner’s crime was an
“aggravated felony”).
I suggest that, in order to determine
whether we have jurisdiction to review the
denial of a downward departure, we should
ask the following question: if the District
Court had not made an erroneous factual
finding, would the result have been the
same? If we can categorically answer
“yes,” then we are saying that the District
Court did not really care whether the facts
or the law “fit,” because the sentence was
imposed as a result of her decision not to
grant the departure in her discretion. In
such a case, we are without jurisdiction to
review. But in some cases, like this one,
we cannot tell whether the court would
necessarily have refused to depart, had it
properly perceived the facts or properly
understood the parameters of the
Guidelines and how they should be applied
in a given case. And in other cases, it is
clear from the record that the court felt
c o n s t ra i n e d b y t h e G u i d e li n e s,
misapprehending a lack of authority to
depart, and it appears likely that the court
would have departed, had it believed that
it could do so. In these latter two
categories of cases, we must conclude that
the sentence was imposed not as a result of
discretionary considerations, but rather as
a result of an incorrect application of the
Guidelines to the factual setting before the
court. If a judge reasons that a factor
necessary for departure is not present, but
it either is present or is not a factor
necessary as a matter of law, how is
discretion exercised in making that
determination at all? The answer is simple
– no discretion is exercised. Again, the
statutory power of review requires that we
exercise our jurisdiction to review the
sentence imposed on Minutoli as a result
of an incorrect application of the
Guidelines to the facts of her case.
II.
The majority reads our court’s
precedents as clearly foreclosing review in
cases like this one, and the Government
strongly advocates that we are bound by
our precedent to find that we lack
jurisdiction here. I emphatically disagree
with that view. Although the case law
related to our appellate jurisdiction over
claims involving a district court’s denial of
a defendant’s motion for a downward

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15
departure is becoming increasingly
confusing, I believe that a careful
examination of the relevant decisions
actually supports a finding that we have
jurisdiction here.
The case that marks the starting
point for our jurisprudence in this area is
United States v. Denardi, 892 F.2d 269 (3d
Cir. 1990). In Denardi, a defendant
appealed his sentence, arguing that his
case involved certain mitigating factors
that were not adequately considered by the
Sentencing Commission in the Guidelines.
Id. at 270. We described the situation
before us as one where “the district court
did not misunderstand the law in applying
the sentencing guidelines,” and where the
court “had discretion to grant the
[departure] request” but, “nevertheless,
refused to grant such relief.” Id. at 271.
On those facts, we held that we lack
appellate jurisdiction over an appeal that
“attacks the district court’s exercise of
discretion in refusing to reduce [a]
sentence[] below the sen tencin g
guidelines.” Id. at 272.
Although I admit to having some
doubt as to the soundness of certain
aspects of our reasoning in Denardi, as
w e l l a s t h e a c c u r a c y o f o u r
characterization of the District Court’s
statements there,9 it is not necessary to
challenge the result in Denardi in order to
recognize that our decision there can (and
should) be read to support the view that we
have jurisdiction in the instant matter,
especially in light of our subsequent
decisions applying the rule we enunciated
there. As the majority described it, the
scenario we considered in Denardi was not
one in which the District Court
misunderstood, based on a mistake about
either the law or the facts, its legal
authority to depart; rather, the Court was
empowered to grant a departure for that
defendant but elected not to do so. The
same has been true in many of our
subsequent decisions applying Denardi.
Since Denardi, we have been faced
with a multitude of appeals involving
questions of our jurisdiction to review
9Based on the portions of the District
Court’s comments at the sentencing
hearing that are quoted in the Denardi
majority opinion, I am inclined to agree
with Judge Becker, who, dissenting from
the court’s decision, indicated his belief
that the majority decided a question that
was not actually presented by that case.
See 892 F.2d at 272 (Becker, J.,
dissenting) (stating that the record shows
that the district court “felt legally
prohibited from departing,” while the
majority decided “whether a
discretionary refusal to depart is
appealable”). However, I will assume
here that the majority’s interpretation
was correct, and that the holding in
Denardi that we lacked jurisdiction is
limited to situations in which a district
court in fact possesses and recognizes its
legal authority to depart on the facts
before it, but exercises its discretion in
refusing to do so.

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16
denials of requests for downward
departures in a variety of circumstances.10
Only a fraction of these appeals have
resulted in precedential opinions of our
court,11 and, as I will discuss below, only
one of those opinions confronts a factual
scenario similar to the one presented by
this case.
In addition to our own opinions
confronting this general issue, we are
guided by the Supreme Court’s recent
opinion commenting on the limits on
10For example, see United States v.
Gori, 324 F.3d 234, 239 (3d Cir. 2003)
(finding jurisdiction to review the denial
of a departure request based on the low
quality of the drug involved); United
States v. Dominguez, 296 F.3d 192, 194-
95 (3d Cir. 2002) (finding jurisdiction to
review the denial of a departure request
based on family circumstances); United
States v. Castano-Vasquez, 266 F.3d
228, 231 (3d Cir. 2001) (finding
jurisdiction to review the denial of a
departure request based on aberrant
behavior); United States v. McQuilkin,
97 F.3d 723, 730 (3d Cir. 1996) (finding
jurisdiction to review the denial of a
departure request based on physical
impairment); United States v. Mummert,
34 F.3d 201, 205 (3d Cir. 1994)
(remanding for clarification of the
reasoning underlying the denial of a
departure); United States v. Love, 985
F.2d 732, 734 n.3 (3d Cir. 1993) (finding
jurisdiction to review the denial of a
departure request based on assistance to
state and local authorities); United States
v. Georgiadis, 933 F.2d 1219, 1224 (3d
Cir. 1991) (finding no jurisdiction to
review the denial of a departure where
the record did not show that the court
failed to consider the request or
misunderstood its authority); United
States v. Bierley, 922 F.2d 1061, 1066-
67 (3d Cir. 1990) (finding jurisdiction to
review the denial of a departure request
based on the defendant’s role in the
offense).
11I respectfully disagree with the
majority’s explanation as to why many
appeals raising issues related to our
jurisdiction to review denials of
downward departures result in opinions
that are not precedential. The majority
asserts that this is due to the fact that
“our law in this area is settled.” Maj. Op.
at 6-7 n. 4. However, a perusal of just a
few of the host of not precedential
opinions on this subject reveals a trend of
confusion and inconsistency. Compare,
e.g., United States v. Jackman, 2003 WL
21754978 (3d Cir. July 30, 2003) (not
precedential) (reviewing for clear error a
district court’s determination that the
defendant’s mental problems were not
sufficiently atypical to warrant a
departure), with United States v. Love,
2003 WL 21363404 (3d Cir. June 13,
2003) (not precedential) (finding no
jurisdiction to review a district court’s
determination that the conditions of the
defendant’s pre-trial confinement were
“not so harsh or inappropriate as to
warrant a downward departure”).

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17
appellate jurisdiction in cases involving
denials of departures. In Ruiz, the
Supreme Court stated that, while we do
not have jurisdiction “where the ground
for appeal consists of a claim that the
district court abused its discretion in
refusing to depart,” we can review where
the district court’s “sentencing decision
rested on a mistaken belief that it lacked
the legal power to grant a departure.” 536
U.S. at 627. This statement of the Court in
Ruiz does not imply any distinction based
on whether the sentencing court’s
“mistaken belief” about its authority to
depart arises from a legal or factual error.
Thus, I urge that it is controlling here.
From the foregoing complicated set
of cases, I would posit that there are five
b a s i c “ r u l e s ” t h a t a r e f a i r l y
straightforward: 1) where a district court
properly apprehends its authority to depart
in a given case, based on an accurate
perception of the facts and the law, we are
not empowered to review, Georgiadis, 933
F.2d at 1222; 2) where a district court
mistakenly concludes that it may not
depart in a given case, and its mistake is
based on an incorrect understanding of the
law or an improper interpretation of the
Sentencing Guidelines’ dictates, we have
jurisdiction to review the legal issues, and
will do so de novo, Castano-Vasquez, 266
F.3d at 229; 3) where a district court
mistakenly concludes that it may not
depart in a given case, and its mistake is
based on an improper application of the
Guidelines arising from a clearly
erroneous determination of the facts, we
will review the factual findings for clear
error, McQuilkin, 97 F.3d at 730; 4) where
we cannot discern the basis for a district
court’s refusal to depart, we will remand
for clarification, Mummert, 34 F.3d at 205;
and 5) where it is clear that the sentence
resulted from, or “rested on,” a district
court’s discretionary refusal to depart,
notwithstanding a factual or legal error, we
do not have jurisdiction to review a claim
based on that immaterial mistake, Ruiz,
536 U.S. at 627. I think the majority
would not take issue with the first, second,
and fourth of these “rules,” none of which
directly impact this case. I will, therefore,
focus exclusively on the third and the fifth,
and I will explain how our court’s case law
leads me to find that such “rules” exist.
The case that most clearly stands
for the proposition that we can review for
clear error in a case like this one is
McQuilkin. There, in an opinion authored
by now-Chief Judge Scirica, we found
jurisdiction and reviewed for clear error in
a case that closely resembles the one
before us. 97 F.3d at 730. The departure
provision involved there was § 5H1.4,
which allows a district court to depart
downward where the defendant puts forth
evidence related to an extraordinary
physical impairment. Id. In finding that
we had jurisdiction, we interpreted the
District Court’s sentencing decision as
follows:
At sentencing, the district
court found McQuilkin’s
condition was “not that type
of an impairment so severe
and complete that the

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18
downward departure
[ w a s ] . . .
warranted.” The
court’s determination
that McQuilkin did
not have the kind of
i m p a i r m e n t
described in § 5H1.4
which “warrants” a
departure could have
meant one of two
t h i n g s : t h a t
M c Q u i l k i n ’ s
impairment was not
extraordinary enough
to allow the court to
depart under the
authority of § 5H1.4;
or that the nature of
the impairment was
s u f f i c i e n t l y
e x t r a o r d i n a r y t o
allow the court to
depart, but that the
court elected not to
d e p a r t o n t h i s
o c c a s i o n . W e
believe the court
meant the former, in
w h i ch cas e, w e
review this finding
for clear error.
McQuilkin, 97 F.3d at 730 (emphasis
added). Importantly, McQuilkin appears
to be the only case in which our court has
ever considered whether and how we
should engage in our review in a scenario
like this one, where the District Court
concludes, based on factual findings that
the defendant challenges as being
erroneous, that it cannot depart. None of
the cases finding that we lack jurisdiction
pursuant to Denardi involve this precise
question. See, e.g., Georgiadis, 933 F.2d
at 1223 (stating that “the record does not
show the district court believed
erroneously it lacked authority to depart”).
The majority seeks to distinguish
McQuilkin from the instant case, but it
cannot truly do so in a way that is
meaningful. In McQuilkin, we were called
upon to review a district court’s
determination that McQuilkin’s physical
impairments were “not extraordinary
enough to allow the court to depart” at all
under the relevant Guideline provision. 97
F.3d at 730. The defendant did not
contend that the district court had applied
the incorrect Guideline provision or that it
had violated a federal statute; rather, he
asserted that the district court’s factual
finding regarding the extent of his
impairments, which rendered the relevant
Guideline provision inapplicable, was
erroneous. The District Court determined
t h a t h is im p air m e n t s w e r e n ot
extraordinary enough to warrant a
departure, and, on appeal, McQuilkin
argued that they were sufficiently
extraordinary. McQuilkin has thus
established in the jurisprudence of our
court that the seriousness of an
impairment, or, here, the severity of
physical threats, is a factual finding that
we review for clear error. How, then, can
we say that a preliminary determination as
to the existence of an impairment or threat
is anything other than a factual finding that

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19
we must review for clear error?
The most striking flaw in the
majority’s attempt to distinguish
McQuilkin is its complete failure to
acknowledge the standard of review that
we applied there. We stated in McQuilkin,
clearly and simply, that “we [would]
review [the challenged] finding for clear
error.” Id. We obviously were not
reviewing a purely legal conclusion, as the
majority contends, because our review was
for clear error, not de novo. Thus, we
characterized the challenge brought before
us in McQuilkin as one directed at a
factual determination, rather than a pure
matter of law, but we did not hesitate to
exercise our jurisdiction. The use of the
clear error standard confirms my view that
McQuilkin dictates a finding that we have
jurisdiction to review challenges to a
district court’s factual findings that
support a denial of a downward departure.
Given McQuilkin, we have jurisdiction to
second-guess a district court’s factual
finding regarding the extraordinary nature
of a defendant’s situation, essentially
reviewing the court’s application of the
Guidelines in the factual setting presented
to us. How, then, can we not be
empowered to second-guess the court’s
finding regarding the presence or absence
in the record of evidence offered by a
defendant where, as here, it led to an
application of the Guideline in the factual
setting presented that was clearly
incorrect? Our statutory grant of
jurisdiction, in addition to our decision in
McQuilkin, dictates that we must engage
in such review.
Here, as we noted above, the
District Court essentially concluded that
Minutoli failed to adduce evidence of the
type of threats necessary to support a
finding that any duress or coercion in her
case somehow rendered her situation
extraordinary enough to warrant a
departure. This was erroneous. Applying
our own case law, then, leads to a finding
that we do have jurisdiction to review for
clear error under these circumstances.
The majority seems inclined to
abruptly end its inquiry into the reasoning
of the District Court upon noticing its use
of the phrase “while I recognize my ability
to depart.” However, our interpretation of
the basis for the District Court’s decision
cannot be this superficial.12 The rest of the
Court’s observations indicate that it
actually concluded that the testimony
offered by Minutoli would not support or
authorize a departure under § 5K2.12 in
this case. Where a court determines that
the preconditions for departing under a
given provision of the Sentencing
Guidelines are not satisfied, and where this
determination has motivated the court in
its sentencing decision, the subsequent
12The Government urged at oral
argument, and again by way of a
supplemental letter brief filed after the
argument, that our precedents preclude
us from exercising jurisdiction in every
case where a district court uses this type
of standard language to reference its
“discretion” under the Guidelines. This
position is simply incorrect.

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20
denial cannot be an exercise of
“discretion.” The court is simply not
authorized to exercise its discretion in such
a case. Under these circumstances, I
believe McQuilkin makes it clear that we
can review the underlying factual findings
for clear error, and, indeed, we are
obligated to do so.
III.
Finally, the majority has indicated
that, after considering the divergent
opinions of the Courts of Appeals for the
First and District of Columbia Circuits
regarding the precise issue that we decide
here, it is persuaded to adopt the reasoning
expressed by the First Circuit in United
States v. Dewire, 271 F.3d 333 (1st Cir.
2001). In Dewire, the defendant had pled
guilty to “using a means of interstate
commerce to induce a minor to engage in
a sexual act.” Id. at 335. The district court
denied his motion for a downward
departure based on aberrant behavior. Id.
On appeal, Dewire contended that the
court’s refusal to depart “was based on an
erroneous factual finding that he had
downloaded child pornography from the
Internet.” Id. The First Circuit held that it
lacked jurisdiction to review Dewire’s
claim related to the downward departure.
Id.
In so concluding, the court
explained its view that there are three
exceptions to the general rule that a district
court’s refusal to depart is discretionary
and not appealable. Id. at 337. Those
exceptions, describing cases in which
review is permissible, are claims that: 1)
“the refusal to depart [resulted from] an
incorrect application of the Sentencing
Guidelines;” 2) “the refusal to depart
otherwise violates the law;” or 3) “the
district court mistakenly believed that it
lacked the discretion to depart.” Id. The
court also noted its “steadfast[] refus[al] to
review denials of downward departures
where the district court did not
misunderstand its legal authority to
depart.” Id. at 338. Summing up its
position, the court stated: “An otherwise
proper sentence is not a misapplication of
the Sentencing Guidelines simply because
the district court, as a matter of discretion,
refuses to impose a lesser sentence than
the law authorizes, even if its factual
reasons for doing so are mistaken.” Id. at
339. As a result, the court determined that
it lacked jurisdiction over Dewire’s appeal.
Id. at 340.
But it would be wrong to conclude
that the actual result in Dewire, given the
facts presented there, is necessarily
inconsistent with what I propose is the
proper analysis. Setting aside the broader
holding of the First Circuit, I would agree
that Dewire’s sentence should have been
affirmed based on the fifth “rule” I posited
above. That is, Dewire provides an
excellent example of a case in which a
fact-finding error was not material to the
sentencing decision, leaving us without
jurisdiction to review under § 3742(a)(2),
because the court’s sentencing discussion
actually indicated that its decision was not
influenced by the finding that the
defendant challenged on appeal. Id. at
336. The trial judge explicitly stated at
sentencing that even if the facts were to fit

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21
within the relevant departure provision, he
would still not be inclined to depart due to
the nature of Dewire’s offense. Id. In
such a case, I would agree that we do not
have jurisdiction to review because it is
clear that the sentence did not result from
the allegedly mistaken factual finding.
The most relevant and persuasive
opinion on the issue before us, dealing
with a very similar factual and procedural
context, is the decision of the Court of
Appeals for the District of Columbia in
United States v. Sammoury, 74 F.3d 1341
(D.C. Cir. 1996). In Sammoury, the court
concluded that it did have jurisdiction to
review a challenge to the factual findings
underlying a sentencing decision. There,
the defendant had pled guilty to bank fraud
based on her misappropriation of funds
that were donated to her nonprofit
employer. Id. at 1341. The district court
denied her motion seeking a downward
departure based on coercion, duress, and
diminished capacity due to abuse by her
husband. Id. On appeal, Sammoury
asserted that the sentencing judge
misapprehended the evidence offered in
support of the departure motion and
erroneously concluded that the abuse was
not the cause of Sammoury’s crime. Id. at
1343, 1346. After a lengthy discussion
regarding appellate jurisdiction over such
a claim, the D.C. Circuit determined that it
was empowered to review the sentence.
Id. at 1345.
The Sammoury court based its
conclusion that it had jurisdiction to
review factual findings underlying a denial
of departure for clear error on the language
of 18 U.S.C. §§ 3742(a)(2) and 3742(e).
The court agreed that it would lack
jurisdiction in a case where the district
court “correctly understood the Sentencing
Guidelines and the evidence, knew [it]
could depart, and yet decided to stick to
the Guideline range.” Id. at 1343.
However, the court also observed that,
where “a district judge sticks to the
Guideline range because he mistakenly
believes he lacks authority to do otherwise,
his sentencing decision is reviewable on
appeal.” Id. at 1344. Because such a
situation exists where “clearly erroneous
factual mistakes [are] used in determining
whether to depart,” the court concluded
that § 3742(a)(2) provides a court of
appeals with the power to review
challenges to the sentencing court’s factual
findings. Id. at 1345. The court based this
conclusion on its interpretation of § 3742,
as well as its view that “[i]t is no more an
infringement on the discretion of trial
judges to set aside a sentence when the
refusal to depart rests on a clearly
erroneous factual mistake than to set aside
a sentence when the refusal stems from a
misinterpretation of the Guidelines.” Id.
Upon reaching this conclusion, the court
went on to review the merits of
Sammoury’s claim, and it ultimately
determined that the district court’s findings
were not clearly erroneous. Id. at 1346.
Given my reading of our precedents
described above, I believe that the D.C.
Circuit’s opinion in Sammoury is quite
consistent with our jurisprudence and
supp orts our review power here.

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However, a review of the case law of the
other courts of appeals reveals that there is
probably a circuit split on the precise issue
before us here.13 The Courts of Appeals
for the First and Fourth Circuits would
apparently dismiss this case based on a
lack of appellate jurisdiction. See United
States v. Underwood, 970 F.2d 1336 (4th
Cir. 1992); United States v. Pierro, 32 F.3d
611 (1st Cir. 1994).14 On the other hand,
the Courts of Appeals for the D.C.,
Second, Fifth, and Ninth Circuits have
reviewed for clear error under similar
circumstances. See Sammoury, 74 F.3d at
1343-45 (prov iding a n exte nsiv e
discussion of the statutory basis for
reviewing findings of fact underlying a
denial of departure for clear error); United
States v. Ardoin, 19 F.3d 177, 181 (5th
Cir. 1994) (“We review the findings of
fact under the ‘clearly erroneous’ standard,
but legal application of the Guidelines is
reviewed de novo.”); United States v.
Mickens, 977 F.2d 69, 72 (2d Cir. 1992)
(reviewing the district court’s factual
findings for clear error where the appeal
challenged the denial of a downward
departure sought based on various
mitigating circumstances); United States v.
Roe, 976 F.2d 1216, 1217 (9th Cir. 1992)
(“We review for clear error the [district]
court’s findin g that a partic ular
circumstance was not extraordinary”).
I submit that our court is most
properly aligned with the latter four
circuits, in part because I find the
reasoning of those courts – and particularly
that of the District of Columbia Circuit in
Sammoury – to be more persuasive, but
also because I believe that our decision in
McQuilkin has already placed us on that
side of the issue. I further submit that the
13I say “probably” because there is a
lack of consistency in the reasoning of
some courts, as noted infra in note 8.
Additionally, some courts, including our
own in McQuilkin, have apparently
adopted a view with minimal discussion
of the issue.
14While Minutoli indicates that the
Courts of Appeals for the Seventh and
Eleventh Circuits would also find that
they lack jurisdiction in a case like this
one, I do not find that to be certain. The
Court of Appeals for the First Circuit
also notes cases from those courts of
appeals in support of its position in
Dewire. 271 F.3d at 338 n.5 (citing
United States v. Steels, 38 F.3d 350 (7th
Cir. 1994), and United States v.
Patterson, 15 F.3d 169 (11th Cir. 1994)).
However, those cases did not involve
allegations of clearly erroneous factual
findings; rather, the defendants in Steels
and Patterson apparently challenged the
district courts’ understanding of the
relevant laws and Guideline provisions.
It thus remains unclear how those courts
would decide the jurisdictional question
presented in this case, as they have not
yet been squarely presented with it.
Indeed, even the Dewire court noted
conflicting authority from the Seventh
Circuit on this question. 271 F.3d at 338
n.5.

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majority view parts company with
McQuilkin and, as a result, runs afoul of
our court’s Internal Operating Procedures,
§ 9.1.
IV.
In light of the foregoing discussion,
I cannot agree that we lack jurisdiction to
consider Minutoli’s appeal. Where it is
based on a plainly mistaken determination
of the facts, a district court’s decision that
a downward departure is not warranted or
authorized under the Guidelines cannot be
insulated from review. As I read the
relevant authority, there is neither a
statutory nor a binding precedential
mandate that we lack jurisdiction in such a
case. We should remain vigilant as we
examine and construe the language used
by the district courts in reaching
sentencing decisions, as the ramifications
have serious implications for criminal
defendants. Specifically, we must
carefully distinguish those situations in
which a district court would be authorized
to exercise its discretion from those in
which it is not actually empowered to do
so.
We cannot simply focus on a
court’s use of a magic phrase, such as “I
recognize that I have discretion under the
Guidelines,” and neglect to consider the
context in which such a statement is made.
The District Court here used such a
standard phrase as it noticed its general
authority under the Guidelines. But where,
as here, a district court proceeds to make a
determination that the requirements of a
given departure provision are not met in a
given case, we must conclude that no
discretionary call was actually made unless
it is clear from the record that the
sentencing decision did not result from
that determination. And where, as here,
the district court’s determination that it
lacks authority is based upon a clearly
erroneous factual finding, we have
jurisdiction to review and correct that error
pursuant to both the relevant statute and
our own case law. The majority concludes
otherwise and refuses to address the clear
error in the factual findings underlying the
District Court’s sentencing decision here.
Therefore, I must respectfully dissent, and
I strongly suggest that, in order for the
majority’s view to stand, this case must be
addressed by the court en banc.

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