U.S. v. Dickerson

Decision Date24 August 2004
Docket NumberNo. 03-4450.,03-4450.
Citation381 F.3d 251
PartiesUNITED STATES of America, Appellant, v. Robin DICKERSON.
CourtU.S. Court of Appeals — Third Circuit

Appeal from the United States District Court for the District of New Jersey, Katharine S. Hayden, J.


George S. Leone [Argued], Office of United States Attorney, Newark, for Appellant.

John H. Yauch [Argued], Office of Federal Public Defender, Newark, for Appellee.

Before RENDELL, FISHER and VAN ANTWERPEN, Circuit Judges.


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 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 Sunday, Jose brought Dickerson 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 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 performance 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 of imprisonment would disrupt 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 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. § 3553(a), including deterrence, 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 scheme, and because she had 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

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 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...

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