United States of America v. ROBIN DICKERSON Appeal from the United States District Court for the District of New…

PRECEDENTIAL
UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4450
UNITED STATES OF AMERICA,
Appellant
v.
ROBIN DICKERSON
Appeal from the United States
District Court
for the District of New Jersey
(D.C. Criminal No. 02-cr-00858)
District Judge:
Honorable Katharine S. Hayden
Argued July 12, 2004
Before: RENDELL, FISHER and
VAN ANTWERPEN, Circuit Judges.
(Filed: August 24, 2004)
George S. Leone [ARGUED]
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Counsel for Appellant
John H. Yauch [ARGUED]
Office of Federal Public Defender
972 Broad Street
Newark, NJ 07102
Counsel for Appellee
OPINION OF THE COURT
RENDELL, Circuit Judge.
On November 18, 2002, Robin
Dickerson pleaded guilty to importation of
more than 100 grams of heroin in violation
of 21 U.S.C. §§ 952(a) and 960(b)(2), a
Class B felony with a five-year mandatory
minimum sentence. After acceptance of
responsibility and minor role adjustments
were made, Dickerson’s sentencing range
under the United States Sentencing
Guidelines was determined to be 30 to 37
months. However, the District Court
granted her motion for a downward
departure based on aberrant behavior,
under § 5K2.20 of the Sentencing
Guidelines, and Dickerson was sentenced
to five years of probation.
The Government appeals the
District Court’s judgment of sentence,
urging that probation was an illegal
sentence for Dickerson’s offense, and that
the downward departure was erroneously
granted. It also asserts that the de novo
standard of review contained in the
Prosecutorial Remedies and Other Tools to
end the Exploitation of Children Today
Act of 2003, Pub. L. No. 108-21, § 401,
117 Stat. 650, 670 (2003) (codified at 18
U.S.C. § 3742(e)(3)(B)) (“PROTECT

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Act”), applies, notwithstanding the fact
that the instant departure was granted prior
to the Act’s effective date. The District
Court had jurisdiction based on 18 U.S.C.
§ 3231, and we have jurisdiction to
consider the Government’s appeal of the
sentencing order pursuant to 28 U.S.C. §
1291 and 18 U.S.C. § 3742(b). For the
reasons that follow, we will vacate
Dickerson’s sentence, remand, and instruct
the District Court to impose a sentence that
falls within the applicable Guideline range.
I. Factual & Procedural Background
At the time of her offense, Robin
Dickerson was twenty-four years old. She
lived with her mother in Staten Island,
New York, and she had recently been
forced to leave college after defaulting on
her student loans. Over the course of her
adult life, Dickerson was consistently
employed at various jobs, ranging from
retail sales to electronic data entry. In late
2001 and early 2002, Dickerson was
employed as a lab clerk at a hospital. Prior
to February of 2002, Dickerson had never
been arrested.
In the summer of 2001, Dickerson
was approached on a New York City street
by a man named Chino, and they
exchanged telephone numbers at that time.
A few weeks prior to February 21, 2002,
Chino called Dickerson and asked if she
would travel to the Dominican Republic
and return with narcotics in exchange for
an amount of money that could range from
$2,500 to $3,000. Chino mentioned that
other women would be doing the same
thing, but that Dickerson would not meet
them. Dickerson agreed, apparently
hoping to earn enough money to repay her
overdue student loans.
From Chino, Dickerson received
$900 in cash, which she used to purchase
plane tickets for her trip. She departed for
the Dominican Republic on Thursday,
February 21, 2002. When she arrived
there, another man named Jose met her and
took her to a hotel. Three days later, on
S und ay, Jose brought Dickerso n
approximately fifty pre-packed pellets of
heroin. Dickerson was able to ingest
eleven pellets and vaginally insert sixteen
more. On Monday, February 25, 2002, she
flew back to the United States, arriving at
Newark International Airport, where
uninvolved friends were scheduled to pick
her up. During a routine interview with
Customs officers, Dickerson grew nervous
and admitted that she was transporting
narcotics. After receiving medical
attention at a hospital, during which the
heroin was recovered and turned over to
law enforcement agents, Dickerson was
arrested.
After spending three days in pretrial
custody, Dickerson was released on bail
and placed on home confinement with
electronic monitoring. Immediately
following her arrest, Dickerson cooperated
with law enforcement agents by describing
her role in the offense and her knowledge
of other individuals involved in the
importation scheme. However, her limited
knowledge of the operation was not
sufficient to support a “substantial
assistance” adjustment under § 5K1.1 of

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the Guidelines. On November 18, 2002,
Dickerson entered a plea of guilty to
importation of more than 100 grams of
heroin, a class B felony with a five-year
mandatory minimum sentence.
On September 26, 2003, the District
Court sentenced Dickerson. According to
the Presentence Report (“PSR”) prepared
by Dickerson’s probation officer, the
recommended offense level was 21.1 This
level took into account downward
adjustments based on the “safety valve”
provision of the Guidelines in § 5C1.2, and
acceptance of responsibility pursuant to §
3E1.1. The District Court granted a
further downward adjustment of two levels
based on a finding that Dickerson played a
minor role in the offense.2 Because this
was Dickerson’s first offense, she had no
criminal history points, and she was
therefore assigned a criminal history
category of I. Thus, the District Court
determined that the appropriate sentencing
range under the Guidelines was 30 to 37
months.
At the sentencing hearing, the
District Court entertained Dickerson’s
motion for a downward departure based on
aberrant behavior under § 5K2.20 of the
Guidelines. Defense counsel argued that
Dickerson’s case was extraordinary, based
on the considerations listed in the
commentary following the aberrant
behavior policy statement. He urged that
Dickerson’s poor pe rform ance on
psychological tests measuring intelligence,
along with her history of emotional
problems including depression, placed her
situation outside the heartland of drug
courier cases.3 He contended that
Dickerson was particularly depressed at
the time of the offense, and that the brief
duration of the offense did not allow her
time to reflect on her actions. He also
emphasized her lack of any prior arrests or
convictions, her desire to complete
college, and her steady employment
history. In closing, he argued that a term
o f im p r i s o n m e n t w o u l d d i s r u p t
Dickerson’s ongoing rehabilitative efforts.
Dickerson and her mother each
briefly addressed the District Court during
the hearing, describing Dickerson’s current
employment and her relationship with her
mother. The Government relied upon its
1The PSR also explicitly stated in
paragraphs 70 and 71 that, pursuant to 18
U.S.C. § 3651(a)(1), 21 U.S.C. §§ 952(a)
and 960(b)(2)(A), and U.S.S.G. §
5B1.1(b)(1), Dickerson was not eligible
for a sentence of probation.
2The Government does not challenge the
propriety of the minor role adjustment.
3This argument relied in part upon a
psychological evaluation of Dickerson that
was performed in July and August of 2003.
The report estimated that Dickerson was
functioning within a low-average
intelligence range, and operated at an early
elementary school level in several subject
areas. It also indicated that she was
significantly depressed, with low self-
esteem and immaturity issues. The District
Court did not explicitly credit or discredit
any of the findings included in this report.

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written sentencing memorandum, in which
it argued that Dickerson’s case was not
extraordinary, that the requirements for an
aberrant behavior departure were not met
by the facts here, and that none of the
sentencing objectives listed in 18 U.S.C. §
3553(a) would be furthered by a reduced
sentence.
The District Court ultimately
granted Dickerson’s motion for a
downward departure. The Court’s written
statement of reasons simply indicates that
the departure was based on § 5K2.20 of
the Guidelines, permitting departures for
aberrant behavior. The reasons for the
departure are explained somewhat by the
District Court’s oral ruling at the
sentencing hearing. Preliminarily, the
Court acknowledged its obligation to
impose a sentence that furthers the
considerations enumerated in 18 U.S.C. §
3 5 5 3 ( a ) , i n c l u d i n g d e t e r re n c e ,
rehabilitation, and the need for appropriate
punishment. The Court went on to explain
its major reasons for departing downward,
namely, because Dickerson was exploited
by those who directed the importation
s c h e m e , a n d b e c a u s e s h e h ad
accomplished much in her life prior to the
offense, as well as following her arrest.
We include in the margin the relevant
portion of the sentencing discussion, taken
from the hearing transcript, as it is central
to our discussion of the propriety of the
departure in question.4
4The District Court stated:
So I have to consider important
factors like making sure my sentence
reflects the seriousness of what somebody
did. My sentence can’t simply ignore the
importance of providing just punishment.
And to the extent it becomes in an open
courtroom, there are people involved with
Ms. Dickerson who is going to know what
kind of a sentence she got. The respect for
the law has to be upheld in the kinds of
sentence that is given.
Ms. Dickerson’s conduct can’t
repeat itself. The public needs to be
protected. She needs to be deterred from
further criminal conduct. People who hear
about her sentence need to know that
doing what she did receives appropriate
punishment.
The rehabilitation that is the feature
of sentencing for Ms. Dickerson is also
important. And Ms. Dickerson’s life one
hardly imagine she needs rehabilitation . .
. because we have here a young woman
whose life-style, whose accomplishment
before this criminal offense, whose
accomplishment since the criminal offense
are all on the high road. And the criminal
conduct is a marked departure . . . .
I think as [counsel] points out an
important fact which struck me . . . is, that
she barely was able to accomplish maybe
a third of what the folks who conscripted
or wanted her to import. And the mode of
payment in terms of the amount agreed
that might have prompted Ms. Dickerson,
is the first time I have seen it by the pellet
that she was going to get paid. It is such a
commentary on the exploitation of people
conscripted in these schemes. And the fact

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The District Court went on to
sentence Dickerson to five years of
probation, a departure of eleven levels
from the applicable Guideline range.
According to the Court, such a sentence
indicated that the crime was a serious one,
but also would enable Dickerson to
continue her efforts at rehabilitation. The
Court specifically noted its belief that
Dickerson was not likely to engage in
similar criminal behavior again. At no
time did the Court address, nor did the
Government raise, the issue of the
statutory prohibition of a probationary
sentence.
The Government advances two
separate challenges to the sentence
imposed by the District Court. First, the
Government contends that a term of
probation is an illegal sentence for a
defendant convicted of importation of
heroin. Second, the Government attacks
the downward departure for aberrant
behavior, arguing that the departure itself
was not warranted, and, in the alternative,
that the extent of the departure was
unreasonable. We will address both of
these issues in turn.
II. The Ban on Probation
Before reaching the challenges to
the District Court’s decision to depart
downward from the relevant sentencing
range, we will examine whether the
sentence was illegal in light of prohibitions
on probationary sentences contained in
applicable criminal statutes. The
Government argues that such a sentence,
in a case involving importation of heroin
in the amount charged here, violates two
particular federal laws. Dickerson
disagrees, urging that her satisfaction of
the prerequisites for the safety valve
provision of 18 U.S.C. § 3553 renders her
immune to the statutory ban on sentences
of probation. Further, as both parties
recognize, the prosecutor failed to raise
that Ms. Dickerson agreed, the fact that
she was treated this way was suggesting to
me she was as far removed from somebody
who had the requisite criminality . . . to do
this again . . . .
So the way the offense was
committed, the way Ms. Dickerson fell
into the hands of the exploitative
traffickers who used her, the way she came
clean, the way she’s conducted her life
since, all I believe support a finding that
this motion has merited her the conduct in
committing the offense was aberrant as in
the guidelines, and just punishment can be
accomplished by putting Ms. Dickerson on
a substantial period of probation that
includes careful supervision . . . .
She’s got a job right now, and she’s
a lot wiser. And I think too embarked
upon a professional career where being
savvy, doing the right thing and dealing
with people in a healthy way will all be of
assistance in her behavior, not only with
the law but in terms of her supervision.

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this objection at the sentencing hearing.5
As we will explain below, we conclude
that a probationary sentence under these
circumstances was plainly erroneous.
A. Standard of Review
Where a party does not object or
otherwise bring an error to the attention of
the district court, we normally review for
plain error. See United States v. Olano,
507 U.S. 725, 732 (1993); Fed. R. Crim. P.
52(b). In order to correct a sentencing
error not raised before the district court,
that standard requires us to find that there
was: 1) an error; 2) that is plain, or
obvious; and 3) that affects substantial
rights. Olano, 507 U.S. at 732; United
States v. Plotts, 359 F.3d 247, 249 (3d Cir.
2004). If those three requirements are met,
it is within our discretion to correct the
error if it was one that “seriously affect[ed]
the fairness, integrity, or public reputation
of judicial proceedings.” Johnson v.
United States, 520 U.S. 461, 467 (1997)
(internal quotation marks omitted).
In the criminal context, we are most
often called upon to apply this standard
when a plain error is brought to our
attention on appeal by a defendant who
challenges aspects of his conviction or his
sentence. See, e.g., United States v.
Dominguez Benitez, 124 S. Ct. 2333
(2004); United States v. Moore, 375 F.3d
259 (3d Cir. 2004). Here, the Government
seeks to invoke the plain error doctrine,
and Dickerson urges that it should not be
permitted to do so. Essentially, Dickerson
contends that the third prong of the plain
error analysis, which requires us to find
that “substantial rights” have been affected
by the error, cannot have been met where
the Government challenges a sentence that
is too low. Such a position has apparently
been adopted by two other courts of
appeals, which have held that allowing
illegal sentences to stand would not result
in manifest injustice where the sentence is
less severe than it should have been. See
United States v. Posters ‘N’ Things, Ltd.,
969 F.2d 652, 663 (8th Cir. 1992)
(refusing to find plain error where the
sentence imposed violated the statutory
minimum); United States v. Garcia-
Pillado, 898 F.2d 36, 39 (5th Cir. 1990)
(same).6
As the parties recognize, however,
six other courts of appeals have firmly
rejected Dickerson’s argument and applied
5We note that the prosecutor also could
have raised this issue with the District
Court through a motion pursuant to
Federal Rule of Criminal Procedure 35(a),
which allows the Government to seek
correction of a clearly erroneous sentence
within seven days of sentencing.
However, the prosecutor failed to file such
a motion.
6Although neither of these decisions has
been explicitly overruled, we question the
continuing force of their reasoning in light
of the Supreme Court’s subsequent
rejection of the “manifest injustice” test
for plain error, upon which both decisions
seem to rest. See Olano, 507 U.S. at 735.

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the plain error standard in the context of
criminal appe als bro ugh t by the
Government. See United States v.
Gordon, 291 F.3d 181 (2d Cir. 2002);
United States v. Perkins, 108 F.3d 512 (4th
Cir. 1997); United States v. Barajas-
Nunez, 91 F.3d 826 (6th Cir. 1996);
United States v. Zeigler, 19 F.3d 486 (10th
Cir. 1994); United States v. Edelin, 996
F.2d 1238 (D.C. Cir. 1993); United States
v. Rodriguez, 938 F.2d 319 (1st Cir.
1991). According to this majority view,
the Government is equally entitled to seek
plain error review because the language of
Rule 52(b) does not limit which party may
raise a plain error before an appellate
court. Further, the Government’s right to
seek justice on behalf of the accuser, and
society, in a criminal case can certainly be
“substantially affected” where a plainly
erroneous sentence that is inappropriately
light is imposed. See Gordon, 291 F.3d at
193; Perkins, 108 F.3d at 517.
We are persuaded that the majority
position is the sounder one, and we
conclude that the language of the Rule, as
well as the aforesaid policy underlying it,
supports allowing the Government to raise
a sentencing error on appeal, even where
that error was not brought to the attention
of the District Court. Thus, we will review
the District Court’s imposition of a
probationary sentence for plain error,
applying the typical plain error analysis set
forth in Olano.
B. Discussion
As we have indicated, Dickerson
was convicted under 21 U.S.C. §§ 952(a)
and 960(b)(2) for importing over 100
grams of heroin, a crime that is
categorized as a class B felony pursuant to
18 U.S.C. § 3559(a)(2). According to one
statutory provision, a defendant who is
found guilty of a class B felony may not be
sentenced to a term of probation. 18
U.S.C. § 3651(a)(1). And, according to
another statutory provision, a defendant
who is found guilty under 21 U.S.C. § 952
of importing “100 grams or more of a
mixture or substance containing . . .
heroin” cannot be placed on probation. 21
U.S.C. § 960(b)(2). The Government
relies on these two statutory prohibitions
on probationary sentences, both of which
facially apply to Dickerson’s offense, to
argue that the District Court committed
plain error in failing to impose a sentence
of imprisonment.
Dickerson’s response to this
argument is that her eligibility for the
statutory “safety valve” provision in 18
U.S.C. § 3553(f), which exempts a subset
of defendants from applicable statutory
mandatory minimum sentences under
certain circumstances,7 renders the
718 U.S.C. § 3553(f), which sets forth a
“limitation on applicability of statutory
minimums in certain cases,” states the
following:
Notwithstanding any other
provision of law, in the case of an
offense under [certain sections of
the Controlled Substances Act,
including 21 U.S.C. § 960,] the

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prohibitions on probation inapplicable to
her. Alternatively, Dickerson urges that
even if the District Court erred in
sentencing her to probation, we should not
reverse for plain error because she could
have been sentenced to time served based
on her three days of pretrial confinement.
According to Dickerson, such a sentence,
followed by five years of supervised
release, would have had the same practical
effect as a sentence of probation;
therefore, says Dickerson, any error here
was harmless and did not affect substantial
rights.
Although our court has not
previously been asked to consider the
interplay between the three statutes cited
by the parties as relevant to the issue here,
the question does not call for a complex
analysis. As other courts of appeals have
indicated, the answer is dictated by
common sense and basic principles of
statutory construction. Four other courts
of appeals have adopted the view espoused
by the Government here, holding that
probationary sentences are barred where a
court shall impose a
s e n t e n c e p u r s u a n t t o
guidelines promulgated by
the United States Sentencing
Commission under section
994 of title 28 without
regard to any statutory
minimum sentence, if the
court finds at sentencing,
after the Government has
b e e n a f f o r d e d t h e
opportunity to make a
recommendation, that–
(1) the defendant does not have
more than 1 criminal history point,
as determined under the sentencing
guidelines;
(2) the defendant did not use
violence or credible threats of
violence or possess a firearm or
other dangerous weapon (or induce
another participant to do so) in
connection with the offense;
(3) the offense did not result in
death or serious bodily injury to any
person;
(4) the defendant was not an
organizer, leader, manager, or
supervisor of others in the offense,
as determined under the sentencing
guidelines and was not engaged in
a continuing criminal enterprise, as
defined in section 408 of the
Controlled Substances Act; and
(5) not later than the time of the
sentencing hearing, the defendant
has truthfully provided to the
Government all information and
evidence the defendant has
concerning the offense or offenses
that were part of the same course of
conduct or of a common scheme or
plan, but the fact that the defendant
has no relevant or useful other
information to provide or that the
Government is already aware of the
information shall not preclude a
determination by the court that the
defendant has complied with this
requirement.

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defendant is convicted of a class B felony,
or of violating 21 U.S.C. § 960(b)(2),
notwithstanding eligibility for the safety
valve.8 See United States v. Green, 105
F.3d 1321 (9th Cir. 1997); United States v.
Belt, 89 F.3d 710 (10th Cir. 1996); United
States v. Snelling, 961 F.2d 93 (6th Cir.
1991); United States v. Thomas, 930 F.3d
526 (7th Cir. 1991).
We will likewise hold that such a
sentence was improper here, for reasons
that were ably set forth by the Court of
Appeals for the Ninth Circuit in Green.
There, the defendant was convicted under
21 U.S.C. § 841 – a different controlled
substances law that, like § 960(b)(2),
contained both a mandatory minimum and
a prohibition on probation – and was also
eligible for the safety valve created by §
3553(f). In Green, the court explained:
Green argues that there is no
difference between a statutory
minimum term of imprisonment
and a ban on probation, and
therefore that the language of §
3553(f) allows the sentencing judge
to disregard both. If this were so,
then § 841(b) would create two
“minimum sentences.” The ban on
probation in § 841 would be
unnecessary if there were not a
way, such as § 3553(f), to dip
8Dickerson urges that there is a circuit
split with regard to this question, and cites
decisions of the First, Fourth, and Eleventh
Circuits as supportive of her position.
However, all of the cases mentioned by
Dickerson are inapposite given the
question we consider here. It is true that
the First Circuit has affirmed probationary
sentences where the relevant offenses
included statutory bars on probation, but
this particular challenge to those sentences
was not raised or examined in those cases,
each of which involved unrelated
challenges to the convictions or sentences.
See, e.g., United States v. Sclamo, 997
F.2d 970 (1st Cir. 1993) (examining only
w h e t h e r the de fend ant’s f amil y
circumstances rendered his case unusual
enough to support a downward departure).
The same is true of the authority relied on
from the Eleventh Circuit. See United
States v. Pippen, 903 F.2d 1478 (11th Cir.
1990) (reviewing a sentence of community
confinement imposed in a case where the
defendant rigged bids in violation of the
Sherman Act where the only challenge was
not based on any statutory bans on
probation, but instead was based on an
argument related to the policies underlying
the Guidelines applicable to this type of
offense). Finally, although the Fourth
Circuit has countenanced a probationary
sentence in the context of a similar drug
offense, it did so before the relevant
controlled substances statutes were
amended to include explicit bans on
probation. See United States v. Daiagi,
892 F.2d 31 (4th Cir. 1989). As a result,
its conclusion has been questioned and
soundly rejected by other courts
considering such a question after those
amendments became effective. See, e.g.,
Thomas, 930 F.2d at 528.

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below the 10-year minimum
imprisonment. To suggest that a
court can disregard both the
minium sentence and the probation
ban would render the ban on
probation in § 841 entirely
meaningless, since every time a
court a v oi de d t he 10 -ye a r
minimum, it could also disregard
the probation ban. Construing §
841(b) to give effect to every
provision, it appears that § 841
establishes the probation ban as the
ultima te floor in case th e
mandatory minimum sentence is
somehow avoided. We therefore
hold that the “notwithstanding any
other provision of law” language in
§ 3553(f) is tied only to the ability
to disregard statutory minimum
terms of imprisonment; any other
reading would eviscerate this
ultimate floor in § 841.
Green, 105 F.3d at 1323-24; see also
Thomas, 930 F.2d at 528 (containing a
similar discussion of § 841 and § 3553(e),
which includes language resembling that
used in § 3553(f) and provides a second
basis upon which a district court may
impose a sentence below the statutory
minimum). Adopting the reasoning quoted
above, we hold that D ickerson’s
probationary sentence violates the
statutory prohibition on sentences of
probation cited by the Government and
referenced by the Probation Officer in the
PSR, despite Dickerson’s eligibility for the
safety valve provision of 18 U.S.C. §
3553.
Thus, the District Court committed
error in sentencing Dickerson to probation,
and we are convinced that the error was
“plain,” given the clarity of the statutory
language and the notice included in the
PSR. As to the third prong of the plain
error analysis, we are persuaded that
substantial rights were affected here, as
Dickerson’s sentence obviously would
have been different had the error not been
made, and Congress’s interest in
imprisoning certain drug offenders is a
“right” to which the citizenry is entitled.
We will not speculate as to what sentence
the District Court would have imposed
absent this error, since any sentence of
imprisonment – even one of time served –
would be qualitatively different from a
probationary sentence. See United States
v. Granderson, 511 U.S. 39, 51 (1994)
(noting that probationary sentences and
terms of imprisonment followed by
supervised release are “sentences of unlike
character”). Therefore, we conclude that
the District Court committed plain error in
sentencing Dickerson to probation, and
that the error seriously affected the
integrity of the proceedings. Accordingly,
on remand, the District Court will be
instructed to impose a sentence of a term
of imprisonment.
III. The Downward Departure
The second set of issues raised by
the Government’s appeal involves
challenges to the departure for aberrant

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behavior.9 We cannot remand for r e s e n te n c i n g b a s e d o n t h e p l a i n ly
erroneous probationary sentence without
reaching these issues, as we must also
instruct the District Court whether, and to
what extent, it can depart for aberrant
behavior when it resentences Dickerson.
In considering these issues, not only must
we examine the merits of the departure and
the extent to which the District Court
reduced Dickerson’s sentence, but we
must also preliminarily consider whether
and how the recently-enacted PROTECT
Act impacts our standard of review in
cases where departures have been granted
prior to the Act’s effective date.
A. Standard of Review
Before Congress enacted the
PROTECT Act on April 30, 2003, we
reviewed a sentencing court’s decision to
depart from the applicable Guideline range
for an abuse of discretion, granting
substantial deference to the district courts.
See Koon v. United States, 518 U.S. 81, 98
(1996); United States v. D’Amario, 350
F.3d 348, 356 (3d Cir. 2003). The
amendments contained in the PROTECT
Act modified our standard of review,
requiring that we consider de novo
sentences that fall beyond the range
specified by the Guidelines. Although
9We will address the Government’s
a rg u m ents r e g a r d in g D i c k e rson’s
downward departure notwithstanding the
fact that they involves sentencing issues
that are completely based on the Federal
Sentencing Guidelines, which have
recently come under attack in the wake of
the Supreme Court’s decision in Blakely v.
Washington, 124 S. Ct. 2531 (2004). We
do so because the question here involves
the application of a downward departure,
rather than an upward departure or a
sentencing enhancement. Thus, unless the
entire Guidelines regime falls, the decision
in Blakely is not clearly implicated here.
Further, in response to questioning by the
Court at oral argument, the parties
conceded that no Blakely-related problems
are likely to arise on the facts of this case.
Additionally, we note that we might
not normally address both the issue of the
statutory prohibition on probation, as well
as the propriety of a downward departure,
since a finding that no departure was
warranted under the Guidelines would
render discussion of the ban on probation
unnecessary. But, given the uncertain
future of the Guidelines, we find it prudent
to reach both issues now. On
resentencing, the District Court may wish
to announce an appropriate alternative
non-Guideline sentence. See, e.g., United
States v. Leach, No. 02-172-14, 2004 WL
1610852, at *4 (E.D. Pa. July 13, 2004).
However, such a sentence must include a
term of imprisonment, as the ban on
probation set forth in 21 U.S.C. §
960(b)(2) will continue to limit the District
Court’s discretion with respect to
Dickerson’s sentence, even if the
G u i d e l i n es a r e u l ti m a t e ly h e ld
unconstitutional by this Court or the
United States Supreme Court.

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12
numerous other courts of appeals have
already examined the PROTECT Act’s
impact on their standard of review, we
have not yet spoken on the manner in
which the new standard should be applied.
The relevant statutory review
provision, as amended by the PROTECT
Act, directs courts of appeals to review
sentences that are “outside the applicable
guideline range” de novo.10 Under this
amended provision, we still review any
findings of fact made by the District Court
for clear error. Id. The only question
before us, then, involves the effect of the
de novo review provision, which applies to
d e t e r m i n a t i o n s m a d e u n d e r §
3742(e)(3)(A) and (B).
The Government asserts that the
application here of the standard articulated
in the PROTECT Act does not run afoul of
the constitution, meaning that it can be
10The relevant language from 18 U.S.C.
§ 3742(e) reads as follows:
Upon review of the record, the
court of appeals shall determine
whether the sentence–
(1) was imposed in violation
of law;
(2) was imposed as a result of an
incorrect application o f the
sentencing guidelines;
(3) is outside the applicable
guideline range, and
(A) the district court failed to
provide the written statement
of reasons required by section
3553(c);
(B) the sentence departs from
the applicable guideline range
based on a factor that–
(i) does not advance the
objectives set forth in
section 3553(a)(2); or
(ii) is not authorized under
section 3553(b); or
(iii) is not justified by the
facts of the case; or
(C) the sentence departs to an
unreasonable degree from the
applicable guidelines range,
having regard for the factors
to be considered in imposing a
sentence, as set forth in
section 3553(a) of this title
and the reasons for the
imposition of the particular
sentence, as stated by the
district court pursuant to the
provisions of section 3553(c)
. . . .
The court of appeals shall give due regard
to the opportunity of the district court to
judge the credibility of the witnesses, and
shall accept the findings of fact of the
district court unless they are clearly
erroneous and, except with respect to
determinations under subsection (3)(A) or
(3)(B), shall give due deference to the
district court’s application of the
guidelines to the facts. With respect to
determinations under subsection (3)(A) or
(3)(B), the court of appeals shall review de
novo the district court’s application of the
guidelines to the facts.

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13
applied to cases on appeal in which the
defendants were sentenced prior to the
Act’s effective date, and that the Act
requires us to review de novo the propriety
of a departure. Dickerson, on the other
hand, contends that the Ex Post Facto
clause prevents us from applying the
amended standard of review to her case, as
her sentence was imposed prior to April
30, 2003. Alternatively, she urges that
where the district court departs based on a
factor explicitly permitted by the
Guidelines, such as aberrant behavior, we
should review only for abuse of discretion.
We reject both of Dickerson’s arguments.
So far, nine other courts of appeals
have published opinions in which they
have applied the de novo standard set forth
in the PROTECT Act to departure cases
that were pending on appeal when the
amendments became effective. See United
States v. Bell, 371 F.3d 239 (5th Cir.
2004); United States v. Kostakis, 364 F.3d
45 (2d Cir. 2004); United States v.
Daychild, 357 F.3d 1082 (9th Cir. 2004);
United States v. Saucedo-Patino, 358 F.3d
790 (11th Cir. 2004); United States v.
Thurston, 358 F.3d 51 (1st Cir. 2004);
United States v. Andrews, 353 F.3d 1154
(10th Cr. 2003); United States v. Stockton,
349 F.3d 755 (4th Cir. 2003); United
States v. Mallon, 345 F.3d 943 (7th Cir.
2003); United States v. Hutman, 339 F.3d
773 (8th Cir. 2003). Six of those opinions
specifically examine, and reject, Ex Post
Facto challenges to the application of the
new review provisions to pending appeals.
See Bell, 371 F.3d at 241-42; Kostakis,
364 F.3d at 51-52; Daychild, 357 F.3d at
1104-06; Saucedo-Patino, 358 F.3d at 792-
93; Stockton, 349 F.3d at 764 & n.4;
Mallon, 345 F.3d at 945-47.
We take this opportunity to join our
sister circuits by holding that the
PROTECT Act’s de novo review provision
does not implicate the Ex Post Facto
Clause when applied to an appeal
involving a defendant sentenced prior to
the Act’s effective date. Like the other
courts that have considered identical
challenges to the review provision of the
PROTECT Act amendments, we conclude
that the change to our standard of review is
essentially a procedural change, rather than
a substantive one. See, e.g., Kostakis, 364
F.3d at 51; Mallon, 345 F.3d at 947. The
amendment does not increase the
punishment for an existing offense, modify
the circumstances under which a departure
may be granted, criminalize previously
innocent behavior, change the elements of
an offense, or alter the facts that require
proof at trial. Mallon, 345 F.3d at 946.
Instead, the new standard of review merely
“changes who within the federal judiciary”
may weigh in on the decision of whether
the legal standards for a departure are met,
insofar as it “increase[s] the number of
judges who must consider [the] issue.” Id.
Under these circumstances, no Ex Post
Facto concerns arise when we apply the
new standard of review to cases that were
pending before us when the PROTECT
Act took effect.
Dickerson contends, however, that
even under the PROTECT Act we should
review for abuse of discretion here. Her
primary argument is based on a flawed

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14
reading of 18 U.S.C. § 3742(e)(3)(B).
Specifically, she urges that we need not
conduct any inquiry under (B)(i) or (B)(ii)
if the departure is based on a factor that is
explicitly permitted by the Guidelines – for
example, aberrant behavior. Therefore,
she reasons, there is no de novo review in
a case such as hers. However, upon closer
examination of the language of §
3742(e)(3)(B), see supra note 10, we
observe that Dickerson’s argument,
focused as it is on subsections (i) and (ii),
ignores subsection (iii). The clear
language of § 3742(e)(3)(B) includes three
disjunctive subsections, and, in order to
uphold the downward departure in this
case, we must determine that each of the
three subsections of § 3742(e)(3)(B) are
satisfied. Thus, we are required to
examine de novo, under subsection (iii),
whether the aberrant behavior departure
was justified by the facts of Dickerson’s
case. Dickerson’s reading of §
3 7 4 2 ( e ) ( 3 ) (B ) i s i l lo g i c a l a n d
unsupported.11 Accordingly, her argument
regarding our standard of review must fail.
The provision of the PROTECT Act
that is relevant here raises four distinct
inquiries in which we, as a reviewing
court, are to engage: first, did the district
court provide an adequate written
statement of reasons, as required by 18
U.S.C. § 3553(c), see 18 U.S.C. §
3742(e)(3)(A); second, does the sentence
depart from the Guideline range based on
a factor that advances the objectives set
forth in 18 U.S.C. § 3553(a)(2), and is
authorized under 18 U.S.C. § 3553(b), see
18 U.S.C. § 3742(e)(3)(B)(i), (ii); third,
does the sentence depart from the
Guideline range based on a factor that is
11Dickerson relies heavily on a decision
of the Court of Appeals for the Fifth
Circuit in which that court appeared to
adopt her position regarding review of
departures based on factors included in the
Guidelines. See United States v. Bell, 351
F.3d 672 (5th Cir. 2003). However, the
Fifth Circuit subsequently withdrew that
opinion and issued a new decision
superseding it, modifying the court’s
approach to cases like this one to bring it
in line with the language of the statute and
the decisions of other courts. See United
States v. Bell, 371 F.3d 239 (5th Cir.
2004). Under the Fifth Circuit’s ultimate
approach, the considerations enumerated
in subsections (i) and (ii) are automatically
fulfilled where the departure factor is one
that is listed in the Guidelines, but de novo
review of whether a departure is justified
by the facts of the case is still required.
Bell, 371 F.3d at 243-44. Thus, the Fifth
Circuit no longer follows the approach
suggested by Dickerson; indeed, she has
pointed us to no other courts that do. Cf.
Thurston, 358 F.3d at 73 (describing its
similar view that factors listed in the
Guidelines as permissible grounds for
departure automatically satisfy the first
two subsections of § 3742(e)(3)(B), but
that a de novo inquiry is still necessary to
determine whether subsection (iii) is
satisfied as well).

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15
justified by the facts of the case,12 see 18
U.S.C. § 3742(e)(3)(B)(iii); and fourth, if
a departure is warranted, was the extent of
the departure granted by the district court
r e a s o n a b l e , s e e 1 8 U . S . C . §
3742(e)(3)(C).13
In examining the first three
questions, we are to engage in de novo
review. However, as the subsection of §
3742(e)(3) that mandates the fourth
question is not impacted by the PROTECT
Act’s de novo standard of review
provision, we are to continue to apply an
abuse of discretion standard as we review
the extent of departures that have been
properly granted.14 See Kostakis, 364 F.3d
at 51, Andrews, 353 F.3d at 1155-56.
We need not address whether the
District Court’s written statement was
sufficiently specific in light of the
requirements in 18 U.S.C. § 3553(c), as
the parties do not dispute the adequacy of
the written statement. The parties also do
not devote significant attention to the
second question described above, but, as
aberrant behavior is a factor that was
considered by the Sentencing Commission
and included in the Guidelines as a
permissible basis for departures, we have
little difficulty concluding that it is a factor
that advances the objectives of §
3553(a)(2) and is authorized under §
3553(b). See, e.g., Thurston, 359 F.3d at
12At this third stage of our review, we
will only review whether the type of
departure granted is generally warranted
by the facts of the case; we will not
consider whether the extent of the
departure is appropriate. See, e.g., Bell,
371 F.3d 243; Thurston, 358 F.3d at 73;
Andrews, 353 F.3d at 1156.
13Most courts to consider this
PROTECT Act question have only
examined whether a departure is justified,
and have not discussed the first two
subsections of § 3742(e)(3)(B) in great
detail or considered how the analysis under
those subsections might be impacted in
cases involving factors included in the
Guidelines. See, e.g., Hutman, 339 F.3d at
775. However, our view of the four
requisite inquiries is dictated by the
statute, and is consistent with each of the
nine opinions of other courts listed above.
14Of course, we will only engage in this
review of the extent of a departure in cases
where, under the provisions of 18 U.S.C. §
3742(a) and (b), we have jurisdiction to
hear such a challenge in the first instance.
Here, our jurisdiction to engage in a
review of both the propriety and the extent
of Dickerson’s downward departure is
clearly based upon § 3742(b)(3), as the
Government is appealing a sentence that
falls below the relevant Guideline range.
Thus, this case does not present us with the
jurisdictional questions that would
accompany a post-PROTECT Act appeal
by a defendant of a district court’s
downward departure ruling. See, e.g.,
United States v. Linn, 362 F.3d 1261 (9th
Cir. 2004); cf. United States v. Parker, 902
F.2d 221 (3d Cir. 1990); United States v.
Denardi, 892 F.2d 269 (3d Cir. 1989).

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16
73. Having disposed of the first two
inquiries, our decision will turn on whether
the departure for aberrant behavior was
justified by the facts of Dickerson’s case,
and, if it was justified, whether the extent
of the departure was reasonable.
B. Discussion
We first examine the standards
govern ing depa rtures for aberrant
behavior, as they are described in the
Guideline provision itself and applied in
our case law.15 As we have previously
instructed, a sentencing court is required to
engage in “two separate and independent
inquiries” when considering a departure
for aberrant behavior under § 5K2.20.
United States v. Castano-Vasquez, 266
F.3d 228, 230 (3d Cir. 2001). One inquiry
asks “whether the defendant’s case is
extraordinary,” and the other asks
“whether his or her conduct constituted
aberrant behavior.” Id. Under the relevant
Guideline provisions, the sentencing court
is free to address these inquiries in any
order it chooses, as long as it considers
both questions. Id. at 234. As we will
explain below, we do not think that the
District Court adequately addressed either
of these requisite inquiries when it
considere d Dickerson’s downward
departure motion.16
As is true whenever a court
considers departing from a Guideline
sentencing range, the District Court was
required to find that Dickerson’s case was
extraordinary, or “outside the heartland” of
cases, before it departed downward. See
Koon v. United States, 518 U.S. 81, 95-96
15In her motion for a downward
departure, Dickerson originally sought a
departure based on aberrant behavior
under § 5K2.20 or, more generally, based
on a combination of factors under § 5K2.0.
However, the “combination of factors”
departure was not mentioned at sentencing
by counsel or by the District Court. Here,
Dickerson focuses almost exclusively on
aberrant behavior as well. The other
factors cited as potentially relevant under
a “combination of factors” theory – for
example, Dickerson’s history of stable
employment and her attempts to cooperate
with authorities – are all factors that are
subsumed within the aberrant behavior
analysis. Thus, because Dickerson cites no
additional factors beyond the aberrant
behavior considerations, we would only
place our stamp of approval on the District
Court’s departure ruling if her case
warrants an aberrant behavior departure.
16Preliminarily, we note that a departure
for aberrant behavior is prohibited in
certain circumstances, which are described
in § 5K2.20. None of those circumstances
are applicable here. One of the situations
listed, in which such a departure is barred,
is where “the offense of conviction is a
serious drug trafficking offense.”
Dickerson’s crime is not considered to be
a “serious drug trafficking offense,” as
defined in Application Note 1, because she
is eligible for the safety valve exception to
the mandatory minimum described in
U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f).

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17
(1996); Castano-Vasquez, 266 F.3d at 232.
In Application Note 2 to § 2.20 of the
Guidelines, the Sentencing Commission
has listed five considerations that may be
relevant to the extraordinariness inquiry in
aberrant behavior cases. The listed factors
include the defendant’s: “(A) mental and
emotional conditions; (B) employment
record; (C) record of prior good works;
(D) motivation for committing the offense;
and (E) efforts to mitigate the effects of
the offense.” U.S.S.G. § 2.20, cmt. n.2.
These factors are “helpful guideposts,”
rather than mandatory considerations, see
Castano-Vasquez, 266 F.3d at 235, but
they are especially instructive as we set out
to review departures like this one under the
new de novo standard. The District Court
did not make any finding, either explicitly
or implicitly, as to the extraordinary nature
of Dickerson’s case, as compared to other
cases involving similar crimes.
After reviewing the record before
us, we are not convinced that Dickerson’s
case is an extraordinary one. She relies
heavily upon a psychological evaluation
performed prior to her sentencing to argue
that her mental and emotional conditions
are out of the ordinary. The conclusions
contained in the report indicate that
Dickerson intellectually functions at a
level that is far lower than her age would
imply, and that she has suffered from bouts
of depression that were at times severe.
While these findings might give us pause,
we must contrast them with the facts that
we glean from the rest of the record. For
example, Dickerson’s ability to function in
an adult-level working environment is
clear, given her completion of a job
training program and her consistent
employment history. Her ability to
function in an advanced academic
environment is also apparent, given the
fact that she completed high school and
spent two full years attending college.
Further, the District Court quite obviously
perceived Dickerson to be a capable young
woman, and was impressed by her past
accomplishments and her ability to cope
with life in a positive manner after her
arrest. Therefore, we cannot conclude that
her mental and emotional conditions alone
are dire enough to render her case
extraordinary.
The four remaining considerations
do not persuade us that Dickerson’s
situation falls outside the heartland of
comparable drug cases. Although
Dicke rson’s record of consistent
employment, including her ability to
secure and retain a job that she enjoys as
the proceedings related to her offense have
moved along, is commendable, it does not
appear to be exceptional for someone her
age. She has not offered any examples of
prior good works that would distinguish
her from typical defendants convicted of
narcotics-related offenses. Her motivation
for committing the offense was, at its core,
a desire to improve her financial situation,
which we believe is all too common for
people who commit this type of drug
courier offense. And finally, while she
turned herself in and attempted to
cooperate when she was questioned by
Customs officials, her efforts in this regard
do not rise to a level extraordinary enough

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18
to support a departure.
Accordingly, we think that
consideration of the circumstances of this
case, guided by the factors listed by the
Sentencing Commission, do not reasonably
lead to the conclusion that Dickerson’s
case is extraordinary. We have found that
aberrant behavior departures were not
appropriate in cases involving ordinary
facts and circumstances in situations that
were comparable to this one. See, e.g.,
Castano-Vasquez, 266 F.3d at 230-31
(finding no showing of extraordinariness
where the defendant in a heroin
importation case was in his fifties, did
volunteer work in his community, suffered
from medical problems, and imported
drugs only once to gain money to support
his family after losing his ability to provide
for them by farming). As the sentencing
judge noted, “Dickerson fits the profile of
a[] mule.” The District Court did not
discuss factors that would remove
Dickerson’s case from the heartland of
defendants who commit comparable drug
offenses, and we do not find any basis for
a finding that Dickerson’s situation is
extraordinary.
Even if we were to agree with
Dickerson that the facts of her case were
exceptional, we would be compelled to
reject her downward departure based on
our analysis pursuant to the other inquiry
mandated by § 5K2.20 and Castano-
Vasquez. In analyzing whether
Dickerson’s behavior was aberrant, a
sentencing court must engage in a three-
pronged analysis. According to
Application Note 1 to § 5K2.20, a single
criminal occurrence or transaction
constitutes “aberrant behavior” if it: “(A)
was committed without significant
planning; (B) was of limited duration; and
(C) represents a marked deviation by the
defendant from an otherwise law-abiding
life.” U.S.S.G. § 5K2.20, cmt. n.1. All
three prongs must be satisfied. Here, the
District Court limited its discussion to the
third factor and made no explicit or
implicit findings with respect to the other
two. On appeal, the Government does not
contest the fact that this offense was a
“marked deviation” from Dickerson’s
otherwise law-abiding life. However, the
other two requirements – regarding
planning and duration – were not
considered by the District Court, and we
will briefly discuss them both.
The actual planning undertaken by
Dickerson in connection with this offense
included the following: she engaged in a
preliminary discussion of the details of her
involvement with Chino a few weeks prior
to her trip; she acquired $900 from Chino
and used it to purchase her plane ticket;
and she arranged to have a friend pick her
up from the airport when she returned to
the United States. Additionally, as the
Government notes, we might also consider
the reasonably foreseeable planning
undertaken by others involved in the
offense, since § 1B1.3(a)(1)(B) of the
Guidelines would classify such activity as
“relevant conduct” for sentencing
purposes.
Regardless of whether we look to
planning undertaken by others like Chino
and Jose in connection with Dickerson’s

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19
trip, we do not consider this to be a case
where the defendant committed the offense
without significant planning. Dickerson
had weeks to prepare for the offense, and
she engaged in preparatory behavior
during that time; she was not simply
approached at the airport just before
checking her luggage and asked to carry a
suitcase onto the plane. Moreover, other
courts have rejected departure requests on
this basis where the planning involved was
far less significant than it was here. See,
e.g., United States v. Castellanos, 355 F.3d
56 (2d Cir. 2003) (upholding a district
court’s refusal to depart where the
defendant made plans to buy heroin one
week in advance and arrived at the
transaction with a large amount of cash
with which to make the purchase).
As to the duration of the offense,
the record does not reveal exactly how
many weeks separated the phone
conv ersatio n between Chino and
Dickerson, during which the plan was first
discussed, from the date when Dickerson
left for the Dominican Republic.
However, we think that a period of
“several weeks” exceeds what we would
view as a limited duration in this context.
A few weeks is sufficient to give a
defendant time to consciously reflect on
her actions and consider whether she
should engage in the relevant criminal
behavior. See United States v. Colace,
126 F.3d 1229, 1231 (9th Cir. 1997)
(stating that offense was not of limited
duration where defendant had two months
“to reflect on his criminal conduct”); cf.
United States v. Orrega, 363 F.3d 1093,
1098 n.7 (11th Cir. 2004) (indicating that,
in the context of a criminal statute related
to coercing minors to engage in sexual
activity, two ninety-m inute phone
conversations were not “of limited
duration”). Additionally, Dickerson had
four days for further reflection once she
arrived in the Dominican Republic. As we
see it, in the context of a courier’s role in
a drug importation scheme, Dickerson’s
offense cannot be considered “of limited
duration” where her involvement spanned
a period of several weeks.
As we noted above, the District
Court did not make findings regarding the
amount of planning that was involved in
the offense, the duration of Dickerson’s
involvement in the offense, or the
extraordinary nature of this case. As is
clear from our previous decisions, and
from the Guidelines themselves, it is
imperative that district courts demonstrate
that they have engaged in the appropriate
analysis and made the requisite findings
before deciding whether to grant a
departure. Considering the record before
us and the relevant case law, we see no
reasonable basis for finding that
Dickerson’s actions “lacked significant
planning” or were “of limited duration,” or
that her situation is removed from the
heartland of cases involving minor
participants in drug importation schemes.
We therefore conclude that no downward
departure for aberrant behavior is justified
by the facts of this case, and we will
instruct the District Court to resentence
Dickerson to a term of imprisonment that
falls within the applicable Guideline

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20
range.17
IV. Conclusion
As we have explained above, the
District Court committed plain error in
sentencing Dickerson to a term of
probation in the face of explicit statutory
prohibitions on such a sentence. The
District Court also erred in granting a
downward departure for aberrant behavior
on the facts of this case. Accordingly, we
will vacate Dickerson’s sentence and
remand for resentencing consistent with
this opinion, at which time the District
Court shall impose a sentence within the
appropriate Guideline range of 30 to 37
months.
17Because we conclude that no
downward departure is warranted, we need
not engage in an examination of whether
the extent of the departure granted here
was unreasonable as the Government
alternatively argues. However, we feel
compelled to note that the District Court
granted a staggering eleven-level departure
without any explanation of why such a
departure was called for, and thus
reasonable, under these circumstances.
The Court did note a desire to avoid any
interruption to Dickerson’s rehabilitation
that would be caused by a sentence of
imprisonment. However, under our
precedent, sentencing courts are instructed
to arrive at a reasonably sized departure by
analogizing to other Guideline provisions,
and we have remanded where district
courts have failed to provide an adequate
explanation. See United States v. Jacobs,
167 F.3d 792, 800 (3d Cir. 1999) (citing
United States v. Kikumura, 918 F.2d 1084,
1113 (3d Cir. 1990)). But, given our
determination that the departure was not
warranted in the first instance, we need not
rule on this issue.

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