UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


IN RE: SEALED CASE


98-3116a

D.C. Cir. 1999


*	*	*


Sentelle, Circuit Judge: In 1997, appellant pleaded guilty  in the
United States District Court to several counts of  cocaine possession
and distribution in violation of 21 U.S.C.  s 841(a)(1) and (b)(1)(C).
At sentencing, the trial court ran 


all sentences on all counts concurrently and sentenced appel- lant to
151 months. On appeal, appellant seeks a remand for  resentencing on
the basis that the District Judge was un- aware of his authority under
s 4A1.3 of the United States  Sentencing Guidelines Manual
("Guidelines") to order a down- ward departure from the career
offender guideline range  assigned to appellant. While the judge's
discourse on the  matter was less than clear, we hold that his
comments should  not be interpreted as reflecting the view that he had
no legal  authority to depart. Therefore, we affirm.


I. Background


On May 2, 1997, appellant pleaded guilty to one count of  unlawful
possession with intent to distribute cocaine and six  counts of
unlawful distribution of cocaine in violation of 21  U.S.C. s
841(a)(1) and (b)(1)(C). Based on the drug quantity  involved, the
Presentence Report ("PSR") set the Guideline  base offense level at
eighteen. Since appellant had been  convicted of two prior felony drug
offenses, she qualified as a  career offender under s 4B1.1 and thus
her offense level was  raised to thirty-two. However, her offense
level was reduced  by three for acceptance of responsibility.
Therefore, her final  offense level totaled twenty-nine.


Regarding appellant's two prior offenses, the PSR showed  that (1) the
two offenses were committed within months of  each other; (2) the
offenses occurred almost ten years prior  to the instant offenses; (3)
the offenses involved very small  quantities of drugs; (4) appellant
received a probationary  sentence on her second conviction; (5)
appellant successfully  completed her parole and probation; (6)
appellant sold drugs  to support her addiction rather than for
financial gain; and  (7) appellant led a conviction-free and
productive life during  the ten year period between her prior offenses
and instant  offenses. Had appellant not been deemed a career
offender,  her total offense level would have been fifteen (base
eighteen  less three for acceptance of responsibility) and her
sentencing  range would have been twenty-four to thirty months. How-
ever, since the court ruled that appellant's two prior convic-


tions qualified her as a career offender, her sentencing range  was
151-188 months.


Prior to sentencing, defense counsel filed objections to the  PSR.
Counsel objected to the career offender adjustment on  the grounds
that it did not "accurately reflect [appellant's]  criminal history,
but artificially inflate[d] her record and  offense level." The
probation officer rejected counsel's char- acterization in an addendum
to the PSR. In making his  objections, defense counsel did not raise
any grounds for  departure specifically under s 4A1.3, the Guideline
provision  cited on appeal, which allows for a sentencing departure
when  "the court concludes that a defendant's criminal history cate-
gory significantly over-represents the seriousness of a defen- dant's
criminal history or the likelihood that the defendant  will commit
further crimes." U.S. Sentencing Guidelines  Manual s 4A1.3 (1998).


At the sentencing hearing, the trial judge stated that he 
"tentatively" agreed with the PSR. The judge also stated  that he was
"tentatively" inclined to impose a sentence at the  bottom of the
Guideline range and to run all sentences on all  counts concurrently.
Defense counsel complained about the  harshness of the sentencing
range in light of various mitigat- ing factors, including appellant's
age, drug addiction, period  of drug abstinence and gainful
employment, and educational  background. In response, the judge


I wish that there was some way I could give her a  sentence less than
the guidelines call for. I am going to  sentence her at the bottom of
the guidelines, but I am  convinced that she needs a long period of
abstinence and  the treatment that she can get in the federal


After defense counsel reiterated his objection to the length of  the
sentencing range, the judge responded, "I don't have any 
alternative." The court proceeded to sentence appellant to  151
months, running all counts concurrently in order to reach  the bottom
of the applicable range.


On appeal, appellant argues that her case must be remand- ed for
resentencing since the sentencing judge was unaware 


that he had authority under s 4A1.3 to order a downward  departure from
the career offender guideline range on the  grounds that appellant's
criminal history significantly overre- presented the seriousness of
her prior convictions and the  likelihood she would commit future
crimes. For the reasons  set forth more fully below, we reject
appellant's contention  that the judge misunderstood his sentencing


II. Discussion


A defendant can appeal a sentence issued under the Guide- lines only if
the sentence "(1) was imposed in violation of law;  (2) was imposed as
a result of an incorrect application of the  sentencing guidelines; or
(3) is greater than the sentence  specified in the applicable
guideline range...." 18 U.S.C.  s 3742(a) (1994). Here, appellant
argues that the District  Judge, as evidenced by certain statements in
the record, was  not aware that he could enter a departure under s
4A1.3.  While this court will review a District Judge's refusal to 
depart downward if the judge misconstrued his statutory  authority to
depart, see, e.g., United States v. Beckham, 968  F.2d 47, 49, 53
(D.C. Cir. 1992); United States v. Ortez, 902  F.2d 61, 64 (D.C. Cir.
1990), we conclude that the District  Judge's comments during the
sentencing hearing did not  amount to an assertion that he lacked the
legal authority to  depart, especially as his comments were made in
response to  defense counsel's general request for leniency and not in
 response to a specific request for departure.


Although appellant's counsel filed written objections to the  criminal
history guideline calculations contained in the PSR,  he did not
specifically request a s 4A1.3 departure prior to  sentencing. In his
letter, counsel objected on the grounds  that appellant's prior
convictions did "not accurately reflect  her criminal history, but
artificially inflate[d] her record and  offense level" because the two
prior convictions should not  have been considered separately under s
4B1.2. Specifically,  counsel argued that "[t]he predicate offenses
for which [the  probation officer] found defendant to be a 'career
offender'  were 'related' according to s 4B1.2, Note 4 of the


Guidelines ... and therefore [the predicate offenses] should  not be
considered two separate and unrelated felonies pursu- ant to s 4B1.2,
Note 4." However, counsel's written objec- tion does not aid
appellant's current position since the objec- tion pertained to the
relatedness of the prior offenses and did  not touch upon s 4A1.3
departure authority. Moreover,  counsel never specifically argued for
departure at the sen- tencing hearing. Instead, counsel essentially
asked the judge  for leniency when assigning the sentence.


Since counsel never specifically argued for this departure  from the
appropriate guideline range before or during the  sentencing hearing,
the District Judge's comments regarding  his sentencing authority must
be evaluated in that context.  The First Circuit considered a similar
record in United States  v. DeCosta, 37 F.3d 5, 8 (1st Cir. 1994). In
that case, the  circuit court observed that a district court often
"simply  asserts that it 'cannot' or 'is without authority' to
depart."  Id. That circuit observed that a district court making such 
an observation may be expressing the thought that it "can- not" depart
because it lacks legal authority under the Guide- lines, or simply
"that it 'cannot' depart" because it has  "weighed the factors urged
and found that they do not  distinguish the case from the mine run of
cases." Id. In  adopting the later view of the case before it and
dismissing  the improvident appeal, that circuit noted that the
failure of  the district court under review to discuss the factors as
to  which the appellant thought it lacked understanding were  easily
explained by the failure of the defense counsel at  sentencing to
explicitly urge those factors as a basis for  departure. Just so


Thus, the critical question on appeal is whether the record 
establishes that the district court judge misunderstood his  departure
authority. See Ortez, 902 F.2d at 64. Granted, the  judge stated that
he "wish[ed]" he could have sentenced  appellant below the guideline
range but concluded that he did  not "have any alternative." However,
the language used by  the judge is the kind of language that
sentencing judges have  always used, even in the days of judicial
sentencing discretion  unbridled by the Guidelines, to mean that the
judge could not  in good conscience or with good judgment give as


sentence as requested by defense counsel. See United States  v. Smith,
27 F.3d 649, 665 (D.C. Cir. 1994) (Sentelle, J.,  dissenting)
("Sentencing judge[s] ... typically said something  like, 'Counsel,
I'd like to give your client a lenient sentence,  but I just can't see
any basis for it.' "). In making such a  statement, the judge does not
mean that he could not lawfully  give the defendant a lenient sentence
but rather that he  cannot do so in good conscience. Here, the
District Judge's  statements are in accord with a sentencing judge's
attempt to  "soften the blow" prior to his meting out justice.
However,  we want to stress that sentencing judges should avoid using 
the ambiguous language that gives rise to appeals like the one  before
us. Justice is better served through clarity on the  record.


Our dissenting colleague charges that by upholding the  District
Judge's decision on a record that contains ambiguity,  we somehow
"abdicate[ ] our responsibility to determine our  own jurisdiction,"
and that our decision "is potentially un- just." Dissent at 4-5. Of
course, any decision is potentially  unjust. So far as abdicating our
responsibility, however, it is  not clear to us how we do anything
other than choose a  different decision than the one chosen by our
colleague who,  we would hold, has applied the wrong standard of
review.  Her chosen standard which finds reversible error on ambigui-
ty in the district court record where the ground of error  asserted on
appeal was never raised is, on its face, inconsis- tent first with
United States v. Pinnick, 47 F.3d 434 (D.C.  Cir. 1995), wherein we
held that a district judge's refusal to  depart without explanation
was unreviewable where the ap- pellant had not afforded the district
court with the opportuni- ty and occasion to explain on the record. As
we held there,  "[u]nder these circumstances, we assume 'that the
district  court kn[ew] and applie[d] the law correctly.' " Id. at 439 
(quoting United States v. Garcia-Garcia, 927 F.2d 489, 491  (9th Cir.
1991)). Concededly, Pinnick involved a case with no  objection rather
than one like the present where a different  objection was made, but
it is not apparent from our col- league's dissent why a different rule
should apply. Secondly,  if a different rule does apply, then it would


the waived objection should be reviewed for plain error. See  United
States v. Albritton, 75 F.3d 709, 712 (D.C. Cir. 1996).  To hold, as
our colleague does, that a record at worst  ambiguous supports
reversal is hardly consistent with plain  error review. Finally, the
searching review that reverses for  an error not raised below on an
ambiguous record is inconsis- tent with the governing statute. In
adopting Guideline sen- tencing in the first place, Congress dictated
that "[t]he court  of appeals shall ... give due deference to the
district court's  application of the guidelines to the facts." 18
U.S.C.  s 3742(e). Our colleague's approach gives no deference at 
all, in derogation of the obvious congressional desire to afford 
stability and presumptive regularity to sentencing under the 


We further cannot agree with our colleague's styling of the  recorded
colloquy between the court and the defendant as  "appear[ing] only to
be consistent with the district court's  view that it was bound to
sentence the defendant within the  Guideline range as enhanced by the
career offender provi- sion." Dissent at 3. Indeed, in explaining his
sentence, the  District Judge stated, "I wish that there was some way
I  could give her a sentence less than the Guidelines call for. I  am
going to sentence her at the bottom of the Guidelines, but  I am
convinced that she needs a long period of abstinence and  the
treatment that she can get in the federal system." Un- less the court
was aware that he did have some possibility of  discretion, the second
of the quoted sentences is unexplaina- ble. If the district court
misapprehended its authority, such  misapprehension is not apparent
from the record. Guidelines  sentencing was intended by Congress to
create stability and  presumptive regularity in sentencing, not to
provide appellate  courts a chance to reverse on ambiguous records in
which the  defense afforded the trial court no opportunity to pass on
the  question asserted on appeal.


Conclusion


Reviewing the subject matter of defense counsel's objection  to the PSR
and his generalized pleas for leniency at the 


hearing together with the language used by the District  Judge, we
cannot conclude that the judge expressed the view  that he had no
legal authority to depart under the Guidelines.  The record
demonstrates that the District Judge exercised  discretion rather than
failed to consider his authority. As we  noted above, we have
jurisdiction to review defense appeals  from sentencing only if the
sentence "(1) was imposed in  violation of law; (2) was imposed as a
result of an incorrect  application of the sentencing guidelines; or
(3) is greater than  the sentence specified in the applicable
guideline range...."  18 U.S.C. s 3742(a). As this appeal falls in
none of those  categories, the appeal is hereby dismissed.


Rogers, Circuit Judge, dissenting: Although the court  labors to
palliate the district court's statements, the effort  contravenes our
precedent calling for a remand in circum- stances such as these. The
district judge stated "I don't have  any alternative" in response to
defense counsel's argument  for a reduced sentence because the
criminal history category  overstated the defendant's criminal history
and because she  had a low likelihood of recidivism. Under unambiguous
 circuit precedent, the district court had the "alternative" of 
considering a downward departure under s 4A1.3. Because  the record is
at best unclear as to whether the district court  was aware of its
authority to depart, a remand is required.  See United States v.
Beckham, 968 F.2d 47, 54-55 (D.C. Cir.  1992); United States v. Saro,
24 F.3d 283, 287-88 (D.C. Cir.  1994).


As the court recognizes, along with every other circuit that  has
addressed the issue, this circuit has held that s 4A1.3  authorizes a
downward departure when criminal history cate- gory VI, assigned
pursuant to the career criminal offender  guideline, significantly
overrepresents the seriousness of the  defendant's past criminal
conduct.1 In Beckham, the defen- dant's sentence was tripled to 30
years to life because he had  been classified as a career offender on
the basis of two prior  convictions, one for attempted possession with
intent to dis- tribute cocaine in 1988 and the other for armed robbery
in  1975. The district court had rejected defense arguments that  the
defendant's youth, family responsibilities, contrition, and  the
grossly disproportionate nature of the penalty provided  authority to
depart; defense counsel "complained about the  harshness of his
sentence in general terms, but he disclaimed  knowledge of any
specific authority in the Guidelines for  departing downward based on




__________

n 1 See, e.g., United States v. Spencer, 25 F.3d 1105, 1112-13  (D.C.
Cir. 1994); United States v. Clark, 8 F.3d 839, 843 (D.C. Cir.  1993);
Beckham, 968 F.2d at 54; see also United States v. Webb,  139 F.3d
1390, 1395 (11th Cir. 1998); United States v. Lindia, 82  F.3d 1154,
1165 (1st Cir. 1996); United States v. Rivers, 50 F.3d  1126, 1131 (2d
Cir. 1995); United States v. Shoupe, 35 F.3d 835,  838-39 (3d Cir.
1994); United States v. Bowser, 941 F.2d 1019, 1023  (10th Cir. 1991);
United States v. Adkins, 937 F.2d 947, 952 (4th  Cir. 1991); United
States v. Lawrence, 916 F.2d 553, 554-55 (9th 


tence and the seriousness of his misdeeds." Id. at 53. The  district
court had observed that the sentence was harsh and  excessive but
stated that it lacked any discretion in the  matter because "Congress
and the Sentencing Commission  have taken that away from me." Id. This
court, while noting  the narrow scope of the departure authority
granted by  s 4A1.3, nevertheless remanded the case for resentencing 
"because the district court was unaware that s 4A1.3 might  provide
authority for a downward departure in a case like  Beckham's...." Id.
at 55. Decisions from other circuits  likewise confirm the
appropriateness of a remand to clarify  similar ambiguities at


The district court's language in the instant case is not as  expansive
as it was in Beckham. The relevant portion of the  colloquy is as
follows:


THE COURT: I wish that there was some way I could  give [the defendant]
a sentence less than the Guidelines  call for. I am going to sentence
[the defendant] at the  bottom of the Guidelines, but I am convinced
that she  needs a long period of abstinence [from drug use] and  the
treatment that [the defendant] can get in the federal  system.


[DEFENSE COUNSEL]: .... [After contending that  there is a low
likelihood of recidivism] [W]hile I concur  with the Court that [the
defendant] needs a lengthy or  [the defendant] needs some period of
incarceration with a  program, I would not ask that it be lengthy. The
bottom  end of the Guidelines are going to put [the defendant] up  at
twelve or thirteen years.


THE COURT: I don't have any alternative.  


__________

n Cir. 1990); United States v. Brown, 985 F.2d 478, 482 (8th Cir. 
1990). 2 For example, in United States v. Webb, 139 F.3d 1390 (11th 
Cir. 1998), even after the district court concurred with the Assistant
 United States Attorney's attempt "to make sure the record is clear 
the court recognizes it has the authority to downwardly depart but 
chose not to do so," id. at 1392, the Eleventh Circuit concluded that 
the record was ambiguous and a remand was required. Id. at 1395.  To
the same effect is United States v. Brown, 903 F.2d 540, 544-45  (8th
Cir. 1990).


This colloquy and the district court's subsequent colloquy  with
defense counsel appear only to be consistent with the  district
court's view that it was bound to sentence the defen- dant within the
Guideline range as enhanced by the career  offender provision. This is
not a case in which the district  court rejected a possible downward
departure because it had  determined that the defendant's case was not
one of the  exceptional cases that would fall within a downward depar-
ture provision of the Guidelines. Instead, the district court  used
absolute language--"I don't have any alternative"--in  denying
sentencing relief other than to sentence at the low  end of the range
without a downward departure. When  viewed in context, the district
court's statement does not  permit this court to conclude that the
district court meant  either that in good conscience it had no
alternative or that it  understood it had discretion under s 4A1.3 and
chose not to  exercise it.3 That the district court also was
interested in  assuring that the defendant had a long period of
incarceration  in order to end her dependancy on drugs is not
inconsistent  with a sentence that could be imposed after departing
down- ward, cf. Brown, 903 F.2d at 544, and the government does  not




__________

n 3 While the court is correct in noting that there are some cases  in
which a district court's claimed inability to depart reflects a 
recognition of departure authority accompanied by a judgment that  the
facts are insufficiently unusual to trigger exercise of that 
authority, this is not such a case. Here, the district court gave 
every indication that it considered this to be a case worthy of a 
departure but that it saw no route available to reach that result. 
For this reason, the government's reliance on United States v.  Shark,
51 F.3d 1072, 1077 (D.C. Cir. 1995) (per curiam), is unavail- ing
because the court there found no ambiguity in the district  court's
statement that it had no "leeway" to reduce a career  offender's
sentence under s 4A1.3 once the district court had  rejected the
defendant's arguments in support of his departure  motion. Similarly,
the court's analogy to United States v. DeCosta,  37 F.3d 5 (1st Cir.
1994), goes astray. In DeCosta, the district  court sought briefing on
its departure authority and expressed so  clear an understanding of
its authority that its subsequent refer-


Moreover, viewing the record as the court does, its conces- sion that
the record is "ambiguous," see Majority Opinion  ("Maj. Op.") at 7, as
to whether the district court recognized  at the time it sentenced the
defendant that s 4A1.3 "might  provide authority for a downward
departure" cannot be rec- onciled with its decision not to remand this
case. Until today,  the court had followed or acted consistently with
the majority  rule: "[i]f it cannot be determined whether the
sentencing  court exercised its discretion or wrongly believed it
could not  depart, the case will be remanded." Jefri Wood, Federal 
Judicial Center, Guideline Sentencing: An Outline of Appel- late Case
Law On Selected Issues 303 (1998).4 However, two  circuits have
evinced a willingness to depart from this rule.  See United States v.
Fortier, 180 F.3d 1217, 1231 (10th Cir.  1999); see also United States
v. Byrd, 53 F.3d 144, 145 (6th  Cir. 1995). By essentially adopting
the minority view as its  holding, the court misconceives the inquiry.
The court recog- nizes that our jurisdiction in this case turns on the
merits,  that is, whether "the record establishes that the district
court  judge misunderstood his departure authority." See Maj. Op.  at
5. But where the record is ambiguous, this court is unable  to
determine whether the district court's decision is reviewa- ble legal
error or an unreviewable exercise of discretion. A  rule that resolves
the ambiguity against the defendant abdi-




__________

n ence to lacking the "discretion" to depart did not create an ambigui-
ty. Id. at 8.


4 See, e.g., United States v. Spencer, 25 F.3d 1105, 1113 (D.C.  Cir.
1994); Beckham, 968 F.2d at 53; United States v. Barry, 938  F.2d
1327, 1330-32 (D.C. Cir. 1991); United States v. Baskin, 886  F.2d
383, 389-90 (D.C. Cir. 1989); cf. United States v. Harris, 959  F.2d
246, 264-65 (D.C. Cir. 1992); United States v. Molina, 952  F.2d 514,
520 (D.C. Cir. 1992); United States v. Lopez, 938 F.2d  1293, 1298
(D.C. Cir. 1991) (citing United States v. Deigert, 916 F.2d  916,
918-19 (4th Cir. 1990)); United States v. Lyons, 706 F.2d 321,  335 &
n.25 (D.C. Cir. 1983). For cases from other circuits, see, e.g., 
United States v. Webb, 139 F.3d 1390, 1395 (11th Cir. 1998); United 
States v. Mummert, 34 F.3d 201, 205 (3d Cir. 1994); United States  v.
Brown, 985 F.2d 478, 491 (9th Cir. 1993); United States v.  Ritchey,
949 F.2d 61, 63 (2d Cir. 1991); United States v. Deigert,  916 F.2d
916, 919 (4th Cir. 1990); see also United States v. Ramos- Oseguera,
120 F.3d 1028, 1040-41 (9th Cir. 1997), cert. denied, 118  S. Ct. 1094


cates our responsibility to determine our own jurisdiction and  is
potentially unjust: "a defendant whose departure request  is rejected
with an ambiguous ruling based on legal grounds  would apparently be
deprived of the appellate review to which  he is statutorily
entitled." Mummert, 34 F.3d at 205 n.2;  accord United States v.
Clark, 128 F.3d 122, 124 (2d Cir.  1997); cf. Koon v. United States,
518 U.S. 81, 100 (1996);  United States v. Leandre, 132 F.3d 796, 800


The court mischaracterizes the majority rule as one that  treats
ambiguity as "reversible error." Maj. Op. at 6. Rath- er, the rule is
designed to aid the court's jurisdictional inquiry  by allowing the
district court to clarify on resentencing  whether its decision not to
depart falls into the class of such  decisions subject to our review
under 18 U.S.C. s 3742.  Contrary to the court's statement, our prior
decisions have  recognized that a remand to clarify an ambiguous
record is  consistent with our decision in United States v. Pinnick,
47  F.3d 434 (D.C. Cir. 1995), which presumes, in the absence of 
record evidence indicating otherwise, that a district court's  refusal
to depart is for discretionary reasons. See, e.g.,  United States v.
Graham, 83 F.3d 1466, 1481 (D.C. Cir. 1996);  see also United States
v. Chase, 174 F.3d 1193, 1195 (11th Cir.  1999). The instant case
falls outside the Pinnick presumption  because the district court's
statement--"I don't have any  alternative"--is precisely the sort of
record evidence that  raises an ambiguity about the district court's
grounds for  decision, triggering application of the rule requiring a


An additionally troubling aspect to the court's resolution of  the
ambiguity is its assumption that the district court was  insincere
when expressing its "wish that there was some way  [it] could give
[the defendant] a sentence less than the  Guidelines call for." Maj.
Op. 3. Even assuming that this  language could be understood to have
been intended only to  "soften the blow," it is at least equally
possible that the  district court meant what it said. By resolving
this ambiguity  against the defendant, the court also deprives the
district  court of the opportunity to consider and explain clearly 
whether a departure under s 4A1.3 was warranted in the 


instant case. Cf. United States v. Rivers, 50 F.3d 1126, 1132  (2d Cir.
1995).


Of course counsel share some responsibility for any ambi- guity in the
record. Directing the district court's attention to  the precise
relief sought under the specific Guideline would  avoid future
ambiguity. Not only could defense counsel have  been more specific,
the prosecutor also could have sought  clarification of the district
court's ruling. But after Beckham,  it is clear that no magic words
are required, not even the  invocation of the phrase "downward
departure." In Beck- ham, defense counsel's arguments for a lesser
sentence were  unavailing. So too, here, counsel's argument that the
defen- dant's two prior convictions should be viewed as related was 
unavailing. In Beckham, defense counsel neither referred to  s 4A1.3
nor, as here, invoked language of its commentary.  Indeed, defense
counsel in Beckham disclaimed the possibility  of other relief under


Still, counsel's argument here adequately preserved the  defendant's
right to review. Counsel objected to application  of the career
offender enhancement because Criminal History  Category VI "do[es] not
accurately reflect the defendant's  actual criminal history but
artificially inflate[s] her record and  offense level." Elaborating
that the career offender provision  did not apply because the
defendant's two prior drug convic- tions should be treated as related,
counsel's invocation of  "artificial[ ] inflat[ion]" of the
defendant's criminal record  closely tracks s 4A1.3's authorization of
a departure when the  "defendant's criminal history category
significantly over- represents the seriousness of a defendant's
criminal histo- ry...." U.S. Sentencing Guidelines Manual s 4A1.3
(1997).  While admittedly inartful, defense counsel's objection suffi-
ciently placed the district court on notice that resort to its 
discretion under s 4A1.3 was being sought. Nothing like this  happened
in Pinnick, 47 F.3d at 439, where counsel failed to  object at all to
the district court's denial of his request for a  departure. If
defense counsel's argument here had been  limited to whether the
career offender provision could be  applied to the defendant as a
matter of law, counsel's objec- tion to Category VI failing to


dant's true criminal history would have been irrelevant. Cf.  DeCosta,
37 F.3d at 8. Similarly, defense counsel raised the  other ground for
a s 4A1.3 departure--the unlikelihood of  recidivism--when arguing
that the bottom of the Guidelines  range was too long. In the absence
of s 4A1.3, that argu- ment also would have been irrelevant.5 Thus,
even in the  absence of our decision in Beckham, defense counsel's
argu- ment was sufficient to alert the district court that a down-
ward departure was being requested.


Had the defendant waived her objection to the district  court's failure
to depart, I would agree with the court that  plain error review
remains for a waived objection. Maj. Op.  at 6; see United States v.
Albritton, 75 F.3d 709, 714 (D.C.  Cir. 1996) (Rogers, J.,
concurring). But the court fails to  heed the instruction in Saro that
in matters of sentencing,  even under plain error review, it is
important to be certain  that the district court understood its
authority and, as appro- priate, exercised its discretion under that
authority. 24 F.3d  at 288. Where a district court states that it has
no alterna- tive to imposing the lowest sentence based on a criminal 
history category VI, in response to defense counsel's argu- ment for a
sentence that does not so overstate the defendant's  prior criminal
record, this court needs to be clear that the  district court
understood that s 4A1.3 "might provide author- ity" for a lesser
sentence. Beckham, 968 F.2d at 55. Accord- ingly, because the systemic
costs of a remand for resentenc- ing do not outweigh (and the
government does not argue to  the contrary) the criminal justice
system's interest in assur- ing correct application of the Guidelines,
I would remand the  case in accord with circuit precedent to allow the
district  court to consider whether to grant a downward departure 




__________

n 5 The court characterizes counsel's argument against the low  end of
the guideline range as a plea for "leniency," Maj. Op. at 4,  without
acknowledging that because the district court had previous- ly
announced its intent to sentence at the low end of the range the  only
possible exercise of leniency left to the court would have been a 
downward departure under s 4A1.3.