TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

JURISDICTION 1

ISSUES PRESENTED FOR REVIEW 1

STATUTES, GUIDELINES, AND RULES 2

STATEMENT OF THE CASE 2

A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below 2

B. Statement of Facts 7

SUMMARY OF ARGUMENT 13

ARGUMENT 15

I. THE DISTRICT COURT LACKED JURISDICTION TO INCREASE MR. xxxxxxx'S SENTENCE AFTER IT HAD ALREADY RESENTENCED HIM ONCE IN CONNECTION WITH THE VACATION OF HIS § 924(c) CONVICTION 15

A. Standard of Review 15

B. This Court's Morris Decision Authorizes Only One Resentencing In Connection With The Granting Of A § 2255 Motion. 15

II. ASSUMING THE DISTRICT COURT HAD JURISDICTION TORESENTENCE MR. xxxxxxx AGAIN IN OCTOBER, THE COURT ERRED AS A MATTER OF LAW IN BELIEVING IT COULD NOT DEPART BASED ON THE REHABILITATION IT FOUND MR. xxxxxxx HAD ACHIEVED SINCE HIS FIRST SENTENCING 18

A. Standard of Review 18

B. This Court Must Remand To Allow The District Court To Consider Whether The Rehabilitation Mr. xxxxxxx Achieved Since His First Sentencing Warrants A Downward Departure 19

1. The Timing of Mr. xxxxxxx's Rehabilitation Did Not Make It An Improper Sentencing Consideration 21

2. Under Koon, Courts May Depart On Any Ground Not Expressly Forbidden By The Guidelines 22

3. Post-Koon Decisions Recognize Post-Conviction Rehabilitation As A Proper Departure Ground 23

C. In Order To Depart On Remand, The District Court Need Only Find That Mr. xxxxxxx's Rehabilitation Takes His Case Outside The "Heartland" Of The Drug Trafficking Guideline 26

1. The Guidelines Do Not Mention Post-Offense Rehabilitation As A Departure Factor 27

2. The Guidelines Do Not Take Any Account Of The Post-Trial Rehabilitation Of A Defendant Who The District Court Finds Went To Trial To Contest His Factual Guilt 28

III. ASSUMING THE DISTRICT COURT HAD JURISDICTION TO RESENTENCE MR. xxxxxxx AGAIN IN OCTOBER, THE JUDGMENT MUST BE VACATED TO THE EXTENT IT IMPOSES ANY FINE 32

A. Standard of Review 32

B. The Court's $3,000 Fine Is Illegal Because It Was Imposed Outside Mr. xxxxxxx's Presence And Because It Conflicts With The Court's Finding That He Does Not Have The Ability To Pay Any Fine 32

CONCLUSION 34

TABLE OF AUTHORITIES

CASES

Bailey v. United States,

116 S. Ct. 501 (1995) 4, 5, 8, 24

*Bartone v. United States,

375 U.S. 52 (1963) 32, 33

*Koon v. United States,

116 S. Ct. 2035 (1996) 19, 22-29

*United States v. Anderson,

39 F.3d 331 (D.C. Cir. 1994),

rev'd in inapposite part on limited reh'g,

59 F.3d 1323 (D.C. Cir. 1995) 33

*United States v. Bapack,

129 F.3d 1320 (D.C. Cir. 1997) 33

United States v. Barry,

961 F.2d 260 (D.C. Cir. 1992) 21

United States v. Beckham,

968 F.2d 47 (D.C. Cir. 1992) 18

*United States v. Brock,

108 F.3d 31 (4th Cir. 1997) 25, 26

*United States v. Core,

125 F.3d 74 (2d Cir. 1997),

cert. denied, 118 S. Ct. 735 (1998) 8, 24, 25

United States v. DeFries,

129 F.3d 1293 (D.C. Cir. 1997) 15

United States v. Dyce,

975 F. Supp. 17 (D.D.C. 1997) 25

*United States v. Harrington,

947 F.2d 956 (D.C. Cir. 1991) 19, 25, 30, 31

United States v. xxxxxxx,

46 F.3d 1166 (D.C. Cir. 1995) 3

United States v. Kalb,

105 F.3d 426 (8th Cir. 1997) 31

*United States v. Kapitzke,

130 F.3d 820 (8th Cir. 1997) 25, 27

United States v. Leandre,

132 F.3d 796 (D.C. Cir. 1998) 18

United States v. Lopez,

938 F.2d 1293 (D.C. Cir. 1991) 18

*United States v. Morris,

116 F.3d 501 (D.C. Cir.),

cert. denied, 118 S. Ct. 431 (1997) 5, 7, 15-17

United States v. Ray,

950 F. Supp. 363 (D.D.C. 1996) 6

*United States v. Sally,

116 F.3d 76 (3d Cir. 1997) 25, 26

United States v. Sammoury,

74 F.3d 1341 (D.C. Cir. 1996) 19

United States v. Smith,

27 F.3d 649 (D.C. Cir. 1994) 19

United States v. Whren,

111 F.3d 956 (D.C. Cir. 1997),

cert. denied, 1998 WL 70407 (Feb. 23, 1998) 21

STATUTES, RULES, AND SENTENCING GUIDELINES

18 U.S.C. § 924(c) 3-7, 13-17, 24

*18 U.S.C. § 3553(b) 22, 31

18 U.S.C. § 3582 15

*18 U.S.C. § 3661 21

21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii) 2

21 U.S.C. § 860 3

28 U.S.C. § 2255 4, 5, 7, 13, 15-17, 25

6 D.C. Code § 2311(a) 3

6 D.C. Code § 2361(3) 3

Fed. R. App. P. 4(b) 7

*Fed. R. Crim. P. 43 14, 32

U.S.S.G. Ch. 1, pt. A, intro. comment 4(b) 22, 23

U.S.S.G. § 1B1.4 21

U.S.S.G. § 2D1.1 5, 7, 28

U.S.S.G. § 2D1.2(a) 4

U.S.S.G. § 2K2.4 5

U.S.S.G. § 3E1.1 24, 26, 28-31

U.S.S.G. § 5E1.2(d) 33

*U.S.S.G. § 5K2.0 22, 31

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________________________________

No. xxxxxxx

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

xxxxxxxxxxxxxxxxx, Defendant-Appellant.

_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________________

BRIEF FOR APPELLANT

____________________________________________

JURISDICTION

Except as argued herein, the district court had jurisdiction over this case under 28 U.S.C. § 2255. A timely notice of appeal from the district court's October 16, 1997 resentencing (judgment dated November 3, 1997) having been filed on October 21, 1997, this Court has jurisdiction over this appeal under 18 U.S.C.

§ 3742(a).

ISSUES PRESENTED FOR REVIEW

I. Whether the district court, having vacated Mr. xxxxxxx's conviction for using a firearm during a drug trafficking crime

and having entered a new judgment resentencing him on the remaining counts pursuant to 28 U.S.C. § 2255, had jurisdiction six months later to resentence Mr. xxxxxxx yet again so as to increase the sentence on one of those remaining counts.

II. Whether, assuming jurisdiction for the last resentencing, the district erred as a matter of law in not recognizing its authority to depart downward from the guideline range based on Mr. xxxxxxx's rehabilitation achievements since his initial sentencing.

III. Whether, assuming jurisdiction for the last resentencing, the district court erred in including a fine in the written judgment when no fine was imposed in the court's oral sentence and the court found that Mr. xxxxxxx was unable to pay any fine.

STATUTES, GUIDELINES, AND RULES

Pursuant to Rule 28(f), Federal Rules of Appellate Procedure, and D.C. Circuit Rule 28(a)(5), the pertinent statutes, guidelines, and rules are set forth in the Addendum to this brief.

STATEMENT OF THE CASE

A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below.

On April 13, 1993, a federal grand jury returned a second superseding indictment charging Mr. Michael Joseph xxxxxxx with five counts: possession with intent to distribute more than 5 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B)(iii) (Count One), possession with intent to distribute cocaine base within 1,000 feet of a school in violation of 21 U.S.C. § 860(a) (Count Two), using or carrying a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c) (Count Three), possession of an unregistered firearm in violation of 6 D.C. Code § 2311(a) (Count Four), and possession of unregistered ammunition in violation of 6 D.C. Code § 2361(3) (Count Five). (App. 1-3). ⁽¹⁾

A co-defendant, Dolores xxxxxxxxt was charged in the last two counts.

On June 1, 1993, following a jury trial before the Honorable Clarence C. Newcomer, Mr. xxxxxxx was found guilty on all counts. On July 29, 1993, he was sentenced to 121 months on Counts One and Two, 60 months consecutive on Count Three, and 12 months concurrent on Counts Four and Five. The court imposed concurrent supervised release terms of 5 years (Count One), 8 years (Count Two), and 3 years (Count Three). The court also ordered a $3,000 fine, but did not specify the count or counts to which it applied. (App. 4-7).

On appeal, this Court reversed Mr. xxxxxxx's conviction under the schoolyard statute (Count Two) on the ground that the government had presented insufficient evidence that the drug offense occurred within 1,000 feet of a school. United States v. xxxxxxx, 46 F.3d 1166 (D.C. Cir. 1995). Over a year after this Court's remand, the district court (Honorable Norma Holloway xxxxxxx), pursuant to that remand, resentenced Mr. xxxxxxx on everything except the vacated schoolyard count (Count Two). Elimination of the two-point schoolyard enhancement under U.S.S.G. § 2D1.2(a)(1) reduced the Count One offense level from 30 to 28, reducing the guideline range from 121-151 months to 97-121 months. The court imposed a sentence of 97 months on Count One, 60 months consecutive on Count Three, and 12 months concurrent on Counts Four and Five, with concurrent supervised release terms of 5 years (Count One) and 3 years (Count Three). (9/27/96 Tr. 23). The court explicitly declined to impose any fine, stating, "I find that you do not have the ability to pay a fine or the costs of incarceration and/or supervision, and the Court waives any alternative sanction in view of the length of your confinement sentence." (9/27/96 Tr. 24). The court did not enter a new judgment but simply issued an "Order Re-Sentencing Defendant" that set forth the new incarceration periods, supervised release periods, and special assessments on Counts One, Three, Four and Five and ordered that "except as provided above, the provisions of the Judgment and Commitment entered August 03, 1993 shall remain in effect." (App. 36-37). To the extent that this order left the original $3,000 fine in effect, it was clearly inconsistent with the court's oral ruling that Mr. xxxxxxx did not have the ability to pay a fine.

In the meantime, on April 22, 1996, Mr. xxxxxxx had filed a Motion to Vacate Conviction Pursuant To 28 U.S.C. § 2255 (App. 8-10), asking the district court to vacate his § 924(c) conviction (Count Three) under the Supreme Court's recent decision in Bailey v. United States, 116 S. Ct. 501 (1995). The government conceded the invalidity of the § 924(c) conviction under Bailey, but sought a resentencing on the remaining drug count (Count One) so as to enhance Mr. xxxxxxx's offense level with the two-level "gun bump" under U.S.S.G. § 2D1.1(b)(1). (App. 11-15, 38-68). (Under U.S.S.G. § 2K2.4, Background, the "gun bump" is only available if the defendant has not been convicted of a separate § 924(c) count). Mr. xxxxxxx opposed any resentencing on Count One, arguing that the district court was without jurisdiction to alter Mr. xxxxxxx's sentence on a count that had not been challenged in his § 2255 motion. (App. 18-30, 73-74).

On October 11, 1996, the district court heard oral argument with respect to its jurisdiction to resentence Mr. xxxxxxx on Count One. Noting that "I am having difficulty with the trend towards reopening everything" (10/11/96 Tr. 7), the court took the issue under advisement (id. at 14).

On April 4, 1997, shortly before this Court heard argument on the jurisdictional issue in United States v. Morris, No. 96-3070, the district court held another hearing. Both parties urged the court not to continue the case pending the Morris decision, but to do as other district judges in the jurisdiction had done and rule one way or the other -- to resentence with the gun bump or not -- and allow the losing party to appeal. See 4/4/97 Tr. 4-6 (defense counsel explaining that court should not await Morris because, if court were to rule for defense, Mr. xxxxxxx would be immediately eligible for imprisonment in a lower security prison "camp"); id. at 8 (prosecutor arguing "I don't see any reason to delay. If I'm wrong, Mr. xxxxxxx will be entitled to summary reversal of a contrary decision. So I don't think we gain anything by continuing it."). The court ruled, "I will read Judge Oberdorfer's opinion [in United States v. Ray, 950 F. Supp. 363 (D.D.C. 1996), in which he applied the gun bump but departed downward to account for the thwarting of the defendant's expectation of finality in his drug sentence] and get this out." (4/4/97 Tr. 14). With the government's acquiescence, the court granted Mr. xxxxxxx's motion to "at least vacate Count Three [the § 924(c) count], since the Government has conceded that that's an improper conviction," and asked defense counsel to present a written order. (4/4/97 Tr. 15). The court requested that the government inform the U.S. Marshal that Mr. xxxxxxx need not remain in the jurisdiction but should be returned to the Petersburg facility. (4/4/97 Tr. 16).

On April 7, 1997, the court issued an Order vacating Mr. xxxxxxx's § 924(c) conviction. The court "FURTHER ORDERED that a revised Judgment In A Criminal Case shall issue, reflecting the following sentences of imprisonment on Counts One, Four and Five:

Count One (possession with intent to distribute cocaine): 97 months to be served concurrently with Counts Four and FiveCount Four (possession of an unregistered firearm): 12 months to be served concurrently with the sentence on Counts One and Five

Count Five (possession of unregistered ammunition): 12 months to be served concurrently with the sentence on Counts One and Four"

(App. 76). The Order made no mention of any fine but did specify that the revised judgment should reflect a supervised release period of 5 years on Count One and a special assessment of $100 on Counts One, Four and Five. (App. 76-77). ⁽²⁾

On April 15, 1997, the district court signed a revised Judgment In A Criminal Case, sentencing Mr. xxxxxxx on the three remaining counts as just set forth, except that the judgment did include a $3,000 fine (again, not attributed to any particular count). (App. 79-82). The new judgment was entered on May 2, 1997. Mr. xxxxxxx's time to appeal expired on May 12, 1997, and the government's time to appeal expired on June 2, 1997. Fed. R. App. P. 4(b).

B. Statement of Facts.

On June 13, 1997, this Court issued its decision in United States v. Morris, 116 F.3d 501, 504 (D.C. Cir.), cert. denied, 118 S. Ct. 431 (1997), holding that "§ 2255's grant of power to the court to 'correct the sentence as may be appropriate' necessarily includes the power to apply the § 2D1.1(b)(1) enhancement [gun bump] at the same time as it removes the hitherto blocking § 924(c) conviction." One week later, on June 20, 1997, the district court in this case issued an Order noting the ruling in Morris and stating that, "Upon consideration of the record in this case, the Court concludes that it is appropriate to increase the defendant's base offense level by two pursuant to U.S.S.G. § 2D1.1(b)(1)." (App. 84).

Mr. xxxxxxx was ordered returned to the jurisdiction for resentencing. (App. 85). Defense counsel filed a Memorandum Regarding Resentencing arguing that "[a] downward departure is warranted based upon Mr. xxxxxxx's rehabilitative efforts during the years he has been incarcerated" -- specifically his completion of his GED, participation in a voluntary drug program and the inmate financial responsibility program, and employment as a groundskeeper at the warden's home, captain's home and lieutenant's home at FPC Petersburg. (App. 89) (citing United States v. Core, 125 F.3d 74 (2d Cir. 1997), cert. denied, 118 S. Ct. 735 (1998)).

On October 16, 1997, six months after the district court had signed the revised Judgment In A Criminal Case, the court held a resentencing hearing at which, applying the two-point "gun bump" and denying any downward departure, the court increased Mr. xxxxxxx's sentence on Count One from 97 months to 121 months. With respect to his rehabilitation, Mr. xxxxxxx stated to the court as follows:

Well, I understand that I can't go back in the past and change my past wrongs. I've been incarcerated almost five years now. When you vacated my sentence back in, I believe it was April -- the BOP, they review your file every six months. They look in my file and seen I was given back seven years [referring to the 5 years eliminated under Bailey and the 2 years eliminated due to the schoolyard enhancement], so my . . . offense level in the Bureau of Prisons had dropped to out-custody. I was on in-custody.

Which meant I was required to be behind a fence. So my level dropped and I was sent over to the camp. Since I've been over at the camp, I have been assigned to outside landscape, where I'm assigned to work at the warden's house, the captain's house, and the lieutenant's house, doing yard work. Of course, these people know we're working in their yard. I think they want to know these things.

During the summertime, when their kids were out of school, I would interact with their kids every day. When I was there cutting grass, they speak to me, I speak to them. They get in their car, they wave at me, they ask me can I move this, can I move that.

When I received your [order setting resentencing] back in . . . July, I got kind of -- started feeling a little funny because I realized if I return to the institution with an enhanced sentence, I might be reclassified as a violent offender and sent back behind the fence. And I know I am not a violent person. I'm not an animal.

And I enjoy working at this camp. I'm given privileges to work. I've been given an operator's permit through the warden. They look at my record to see what I've been convicted of, what I'm in for. And he granted me an operator's permit so I can drive the lawnmowers and tractors around the residence, which is adjacent to the camp.

So, you know, I get up and I go to work every day. These people, they look at you, keep a close eye on you, make sure, you know, you do what you have to do. Like I said, I see these people's kids every day. And these people look in my file, so if there is anything in there, they feel, look, he doesn't need to be over here, you know, get him out and send him back over the fence, and they would.

I'm afraid that I will be sent back behind the fence. I got my G.E.D. since I've been in; haven't gotten into any trouble. I volunteered to these programs that are given to me. I haven't gotten a college degree because Congress did away with all of that, so there's none of that. I just get up, go to work. If I see something on the call-out board that I can participate in, then I participate. I read my books, I look at the news, I see what's going on in society, I know what's going on down here in Washington.

I see people doing things that, funny as it may sound, I'm starting to not feel like a criminal. There are people convicted of manslaughter, there are people convicted of certain charges that will be home years before I will be, Your Honor. I take responsibility for these charges.

My mother is 64 years old. She'll be probably 68 when I get out. Her body is slowly decaying. This is the first time I come in this courtroom and she's not out there to support me. That's all I have in this world, and I have a five-year-old son.

Now, I still have 18 more months to serve . . . . I was given a release date, a halfway house date for July 20th, 1999, two days before my 30th birthday, and it's probably going to change now. But, like I said, I can't go back in the past. I understand what was found in my house could have turned -- was potentially dangerous, but it didn't turn dangerous, you know.

And I'm just enjoying myself with this camp. I'm looking forward to getting in pre-release class, want to help me get my resume together and get me ready to go back into society. By me working at this camp and being around these people's kids and their family every day, it helps me even better, Your Honor.

So, I may be sent back behind the fence, reclassified as a violent offender for possession of a firearm in commission of a felony. These people look at my folder and say, "Well, you're an animal again. We're going to send you back behind the fence." And I'm not a violent person, Your Honor.

I'm very sorry. I'm very remorseful. My mother, I have taken her through so much. My family. Every day. When I got back to Petersburg in April, I said I'm coming home in '99; Michael, you know what you got ahead, you know what you got to deal with, you know what's going on in society. So now I'm asking Your Honor to give me -- if possible, just leave my sentence the way it is, so I can continue to work, continue to stay at the camp, continue to get ready to get into pre-release, and look forward to returning to the District of Columbia.

(10/16/97 Tr. 12-16) (emphasis added).

The district court ruled that, as much as it would like to, it could not consider Mr. xxxxxxx's rehabilitation in imposing sentence, either as an indication that he had accepted responsibility at the appropriate time, or as a ground for departure.

Consistently, I could not say [he accepted responsibility], as much as I would like to, because I do believe that Mr. xxxxxxx is truly rehabilitating himself. But what he is doing now under the constraints that he finds himself does not permit me to be able to reach back and say that he had accepted responsibility. So, no, I cannot grant him that, as much as I personally would like to. I just can't do it.

And one of the reasons . . . that I held his case up so long is that I was hopeful that we would not have to come to this new two points we came to today, but that is the law, and that's what I must comply with. I was just really hopeful that you would be successful on the argument you were making with respect to that [jurisdictional] issue, but that's where we find ourselves.

Mr. xxxxxxx, I'm very happy to hear that you are rehabilitating yourself. Honestly and truthfully, you are the only person who can rehabilitate yourself. We put you in institutions because that's what the law requires after you commit a certain type of offense, and we hope that you will somehow through this period of incapacitation find a way to find yourself. And you sound to me like you are finding yourself.

Now, I know that the bulk, the large majority of people that we put in prison never find themselves because they have never known who they were. I think, however, that what I hear from you is that you did know who you were; you just got off on a wrong track. But now that you have time to sit down and reflect on your conduct and to reflect on your future, you are able to see the end of the rainbow.

. . . I encourage you to continue your efforts at rehabilitation. You may not be able to go to college, but it doesn't mean you can't get a college education. You can still, I bet, borrow books. I'm sure there are ways that you can borrow books to help you improve your knowledge in the arts or sciences, history, and more importantly, something that I didn't have to learn about when I was in school because nobody knew anything about it, and that's space. That's the future. You see, you're going to live into the 21st Century; you're going to be here quite a while in the 21st Century. Space, computer science, those are the things of the future. Study them. Learn all you can about them. We're not sending these things to Mars and to Venus and these other places for nothing. That's going to be the new frontier.

. . . Not everybody who stands before me would get this kind of talk, and you know why? Because many of the people who come before me do not have the ability to understand what I'm saying. I see that you do have that ability. . . .

Now, the job that you have is not great, but I'm going to recommend that, notwithstanding the sentence that I must impose, that [the Bureau of Prisons] consider your rehabilitation, and the next word I want to use is "potential." That they consider the rehabilitation already achieved and your potential. All I can do is recommend, okay? I can't order anything. But I will do that because for you to be able to really prepare yourself for the future, it's not going to be as easy to go back to the life you lived before the present placement. And I know you will do what has to be done no matter where you are placed, but since you are in a circumstance that you find conducive to your rehabilitation, I will certainly recommend it to them. ⁽³⁾

(10/16/97 Tr. 17-21) (emphasis added).

The court proceeded to impose a sentence of 121 months (with 5 years of supervised release) on Count One with concurrent

12-month sentences on Counts Four and Five. (10/16/97 Tr. 21). The court also ordered that Mr. xxxxxxx would be refunded $100 of the $150 special assessment he had paid. (10/16/97 Tr. 23).

Although no fine was ordered, and no finding was made that Mr. xxxxxxx had the ability to pay a fine, the court ordered as a condition of his supervised release that "[y]ou shall pay the balance of your fine at a rate established by the U.S. Probation Office." (10/16/97 Tr. 22). The court's November 3, 1997, written judgment "adopt[ed] the factual findings . . . in the presentence report" (App. 96) -- which included a finding that "we do not believe that the defendant has the ability to pay a fine or the cost of imprisonment or supervision" (PSR at 10). ⁽⁴⁾

Yet the same judgment included a $3,000 fine to be paid with interest at the direction of the probation office. (App. 95).

SUMMARY OF ARGUMENT

The district court lacked jurisdiction to conduct the October 1997 resentencing. The court's entry of the April 1997 revised judgment (after vacating Mr. xxxxxxx's § 924(c) count under § 2255) was a resentencing on the remaining counts without the "gun bump." When the government did not appeal the April judgment, it became final and the court lost any jurisdiction under § 2255 to reopen Mr. xxxxxxx's sentence to add the gun bump. This Court should therefore vacate the judgment of November 3, 1997, leaving in place the judgment of April 15, 1997.

In the alternative, assuming the district court had jurisdiction to conduct the October 1997 resentencing, this Court must remand for resentencing because the district court erred as a matter of law in ruling that it lacked authority to depart from the guideline range. The court clearly found that Mr. xxxxxxx had rehabilitated himself while incarcerated -- to the point that the court was willing to recommend special consideration of his rehabilitation by the Bureau of Prisons -- but was under the mistaken belief that, in imposing sentence, it could not consider Mr. xxxxxxx's conduct in the interim since his initial sentencing. In fact, because the guidelines do not expressly forbid consideration of such rehabilitation, it is a permissible departure ground that the district court should have the opportunity to consider on remand.

Because the guidelines do not mention rehabilitation as a departure factor, the district court may depart on remand as long as it finds that Mr. xxxxxxx's rehabilitation puts his case outside the "heartland" of the drug trafficking guideline under which he was sentenced. Although post-offense rehabilitation is mentioned as a consideration under the acceptance of responsibility guideline, the guidelines do not take any account of such rehabilitation for defendants like Mr. xxxxxxx who are not eligible for an acceptance of responsibility adjustment because the court found they went to trial to contest their factual guilt. Such post-trial rehabilitation is therefore a mitigating factor of a kind not taken into account by the guidelines and, in order to be eligible for a departure, Mr. xxxxxxx need not show exceptional rehabilitation to a degree beyond that typically found when the acceptance of responsibility adjustment is granted.

At a minimum, this Court must vacate that part of the judgment that (apparently unintentionally) imposed a $3,000 fine. Not only was the fine imposed outside Mr. xxxxxxx's presence, in violation of Fed. R. Crim. P. 43, it is inconsistent with the district court's finding that he does not have the ability to pay any fine.

ARGUMENT

I. THE DISTRICT COURT LACKED JURISDICTION TO INCREASE MR. xxxxxxx'S SENTENCE AFTER IT HAD ALREADY RESENTENCED HIM ONCE IN CONNECTION WITH THE VACATION OF HIS § 924(c) CONVICTION.

A. Standard of Review.

Issues of jurisdiction are reviewed de novo. United States v. DeFries, 129 F.3d 1293, 1302 (D.C. Cir. 1997).

B. This Court's Morris Decision Authorizes Only One Resentencing In Connection With The Granting Of A

§ 2255 Motion.

"Under 18 U.S.C. § 3582(c) a court may modify a sentence only in three circumstances: (1) on motion of the Bureau of Prisons, (2) 'to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure,' and (3) to reflect a post-sentence reduction in the applicable sentencing guidelines." United States v. Morris, 116 F.3d 501, 504 (D.C. Cir.), cert. denied, 118 S. Ct. 431 (1997) (emphasis added). As in Morris, the only possible source of authority for the district court's final resentencing of Mr. xxxxxxx is 28 U.S.C. § 2255, which provides:

A prisoner . . . claiming the right to be released upon the ground that the sentence . . . is . . . subject to collateral attack, may move the court . . . to vacate, set aside, or correct the sentence.

[If the court grants the motion it] shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

The Morris Court concluded that "§ 2255's grant of power to the court to 'correct the sentence as may [appear] appropriate' necessarily includes the power to apply the [gun bump] at the same time as it removes the hitherto blocking § 924(c) conviction." Morris, 116 F.3d at 504 (emphasis added). While Mr. xxxxxxx does not suggest that the district court must conduct the resentencing contemporaneously with the vacating of the

§ 924(c) conviction, the Morris holding does mean that a court has authority to resentence a defendant only one time in connection with the granting of a § 2255 motion. Once the district court decided to enter a new judgment in April 1997, that judgment was the court's only opportunity to apply the gun bump. The court could have applied the gun bump at that time (in which case Mr. xxxxxxx would have appealed, but eventually lost under Morris), or deferred entering a new judgment until the Morris case was decided. Instead, the court opted at that time to enter a new judgment imposing a 97-month sentence on Count One. As a result, Mr. xxxxxxx returned to Petersburg in April thinking "I'm coming home in '99." (10/16/97 Tr. 15). Of course, the government could have appealed the court's failure to apply the gun bump in the April judgment, just as Mr. xxxxxxx could have appealed the imposition of the fine. Neither party did. Thus, the April judgment became final, and the court lost any authority to reopen the sentence on Count One.

There can be no argument that the court's April judgment was only a resentencing on Count Three, and not a resentencing on Count One, merely because it left the Count One portion of the sentence unchanged. This Court in Morris explicitly relied on the fact that a "judgment" is not to be broken down into its component sentences but must be viewed as a whole:

§ 2255 explicitly directs the court to vacate the "judgment," and appellants do not dispute the singularity of the judgments under which each is imprisoned. Presumably the power to "resentence" the prisoner and to "correct the sentence as may appear appropriate" must be construed in that light.

Morris, 116 F.3d at 504. Just as the vacation of a judgment is the vacation of all the sentences therein, the imposition of a judgment is the imposition of all the sentences therein. See also App. 61 (government arguing "The judgment is the entire sentence").

Nor does the fact that the April judgment was entered without any oral resentencing make that judgment any less a new sentence. Everyone understood that if the court determined that it had no jurisdiction to alter the Count One sentence, there would be no need to have Mr. xxxxxxx present for an oral resentencing; the court could simply enter a revised judgment vacating the § 924(c) count. See 10/11/96 Tr. 7 (defense counsel agreeing with court that Mr. xxxxxxx can be sent back to the federal institution "if the Court rules that it cannot resentence him. If the Court rules that it can resentence him, he then has the right to be present at resentencing . . . I mean, he could go back and then come back again"); id. at 15 (defense counsel alerting court that government was not seeking gun bump in Warren case and it "is ripe just to have the five years vacated"; "THE COURT: And it isn't necessary for me to bring Mr. Warren in, is it? [THE PROSECUTOR]: No, Your Honor. [DEFENSE COUNSEL]: No. Just a revised Judgment and Commitment and an order vacating

that."). That is precisely what the court did when it entered the new Judgment In A Criminal Case on April 7, 1997.

Having resentenced Mr. xxxxxxx in April without the gun bump, the court was without jurisdiction to resentence him again -- this time with the gun bump -- in October.

II. ASSUMING THE DISTRICT COURT HAD JURISDICTION TO RESENTENCE MR. xxxxxxx AGAIN IN OCTOBER, THE COURT ERRED AS A MATTER OF LAW IN BELIEVING IT COULD NOT DEPART BASED ON THE REHABILITATION IT FOUND MR. xxxxxxx HAD ACHIEVED SINCE HIS FIRST SENTENCING.

A. Standard of Review.

Defense counsel requested "[a] downward departure . . . based upon Mr. xxxxxxx's rehabilitative efforts during the years he has been incarcerated" (App. 89), but the district court held that, despite that rehabilitation, it "must impose" a sentence within the guideline range. (10/16/97 Tr. 20). "'If a district judge sticks to the [G]uideline range because [the judge] mistakenly believes he [or she] lacks authority to do otherwise, [the judge's] sentencing decision is reviewable on appeal.'" United States v. Leandre, 132 F.3d 796, 800 (D.C. Cir. 1998) (quoting United States v. Sammoury, 74 F.3d 1341, 1344 (D.C. Cir. 1996)). See also United States v. Beckham, 968 F.2d 47, 53 (D.C. Cir. 1992) (appellate court should remand for resentencing where it appears that trial court believed that its authority to depart "was constrained in a way it actually was not"); United States v. Lopez, 938 F.2d 1293, 1296 (D.C. Cir. 1991) ("A sentencing court's decision not to depart is reviewable if based on a misconstruction of its authority to depart.").

"[W]hether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court's resolution of the point." Koon v. United States, 116 S. Ct. 2035, 2047 (1996) (whether review is labeled "de novo" or "abuse of discretion" is irrelevant since "[a] district court by definition abuses its discretion when it makes an error of law"). See also Sammoury, 74 F.3d at 1343 (whether court had authority to depart "raises a question of law"); United States v. Smith, 27 F.3d 649, 651 (D.C. Cir. 1994) (whether particular factor can ever justify downward departure "presents a threshold question of law that we decide de novo); United States v. Harrington, 947 F.2d 956, 957 (D.C. Cir. 1991) ("The determination whether a particular factor is an appropriate ground for departure 'involves a question of statutory interpretation' over which this court exercises 'plenary review.'") (citation omitted).

B. This Court Must Remand To Allow The District Court To Consider Whether The Rehabilitation Mr. xxxxxxx Achieved Since His First Sentencing Warrants A

Downward Departure.

The district court clearly accepted the factual basis for Mr. xxxxxxx's departure request. See 10/16/97 Tr. 17 ("I do believe that Mr. xxxxxxx is truly rehabilitating himself"); id. ("Mr. xxxxxxx, I'm very happy to hear that you are rehabilitating yourself"). Indeed, it is clear that the court considered Mr. xxxxxxx's situation to be atypical in this respect. See 10/16/97 Tr. 17-18 ("you sound to me like you are finding yourself. [T]he large majority of people that we put in prison never find themselves"); id. at 20 ("Not everybody who stands before me would get this kind of talk, and you know why? Because many of the people who come before me do not have the ability to understand what I'm saying. I see that you do have that ability.").

The court plainly felt that Mr. xxxxxxx's situation was unusual and wanted to do everything it legally could to take that into account. Indeed, the court went so far as to state that it would recommend to the Bureau of Prisons (BOP) that, despite any reclassification resulting from application of the gun bump, Mr. xxxxxxx be permitted to continue with his employment in the Petersburg Camp due to "the rehabilitation already achieved and your potential." (10/16/97 Tr. 20). With respect to the request for a downward departure on that basis, however, the district court considered itself without authority to act, noting that it would make its BOP recommendation "notwithstanding the sentence that I must impose." (10/16/97 Tr. 20) (emphasis added).

The court's belief that it was bound by the 121-151 month guideline range appears to have been the result of a misconception that it could not consider anything that had taken place since the initial sentencing. Back when the district court had resentenced Mr. xxxxxxx on remand from this Court's reversal of the schoolyard count, defense counsel expressed concern that the court "have full information about how he's adjusted." (9/27/96 Tr. 19). The court responded: "It doesn't matter how he's adjusted. I'm not going to give him any credit for how he has adjusted. I'm going to sentence him like he was being sentenced the first time." (9/27/96 Tr. 20). See also United States v. Whren, 111 F.3d 956, 958 (D.C. Cir. 1997) (same district judge concluded "post-sentencing conduct is not a proper ground for a departure" but this Court declined to entertain the issue because not adequately argued in brief), cert. denied, 1998 WL 70407 (Feb. 23, 1998).

1. The Timing Of Mr. xxxxxxx's Rehabilitation Did Not Make It An Improper Sentencing Consideration.

The court's belief that it could not consider in a resentencing factual circumstances that had arisen since the initial sentencing was wrong as a matter of law. Congress has provided in 18 U.S.C. § 3661 that "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." The Sentencing Guidelines, in turn, provide:

In determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law. See 18 U.S.C.

§ 3661.

U.S.S.G. § 1B1.4. In United States v. Barry, 961 F.2d 260, 266 (D.C. Cir. 1992), this Court spoke approvingly of the district court's consideration at resentencing of "updated information concerning [the defendant's] rehabilitation efforts and the community service he had performed between his first and second sentencings."

2. Under Koon, Courts May Depart On Any Ground Not Expressly Forbidden By The Guidelines.

Moreover, such rehabilitation is a permissible ground for departure under U.S.S.G. § 5K2.0, p.s., because it is a "'mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.'" Id. (quoting 18 U.S.C. § 3553(b)).

As provided in introductory comments to the guidelines:

The Commission intends the sentencing courts to treat each guideline as carving out a "heartland," a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.

. . . With th[e] specific exceptions [noted as forbidden departure grounds in U.S.S.G. §§ 5H1.10, 5H1.12, 5H1.4, and 5K2.12], however, the Commission does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines that could constitute grounds for departure in an unusual case.

U.S.S.G. ch. 1, pt. A, intro. comment. 4(b).

Thus, as explained by the Supreme Court in Koon v. United States, 116 S. Ct. 2035, 2044 (1996), Congress provided for departures when the Commission did not adequately take a particular circumstance into account and "the Commission did not adequately take into account cases that are, for one reason or another, 'unusual.'" Koon, 116 S. Ct. at 2044 (quoting U.S.S.G. ch. 1, pt. A, intro. comment. 4(b)). Thus, "[a]typical cases were not 'adequately taken into consideration,' and factors that may make a case atypical provide potential bases for departure." Id. "The Commission chose to prohibit consideration of only a few factors, and not otherwise limit, as a categorical matter, the considerations which might bear upon the decision to depart." Id. at 2045.

Here, there can be no claim that the rehabilitation Mr. xxxxxxx achieved since his first sentencing was one of the "forbidden" factors set forth in U.S.S.G. §§ 5H1.10, 5H1.12, 5H1.4, or 5K1.12. Thus, the district court erred as a matter of law in believing it had no authority to consider such rehabilitation.

The Guidelines . . . "place essentially no limit on the number of potential factors that may warrant departure." Burns v. United States, 501 U.S. 129, 136-37 (1991). The Commission set forth factors courts may not consider under any circumstances but made clear that with those exceptions, it "does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case." 1995 U.S.S.G. ch. 1, pt. A, intro. comment. 4(b). Thus, for the courts to conclude a factor must not be considered under any circumstances would be to transgress the policymaking authority vested in the Commission. . . . We conclude, then, that a federal court's examination of whether a factor can ever be an appropriate basis for departure is limited to determining whether the Commission has proscribed, as a categorical matter, consideration of the factor. If the answer to the question is no -- as it will be most of the time -- the sentencing court must determine whether the factor, as occurring in the particular circumstances, takes the case outside the heartland of the applicable Guideline.

Koon, 116 S. Ct. at 2050-51.

3. Post-Koon Decisions Recognize Post-Conviction Rehabilitation As A Proper Departure Ground.

Several post-Koon decisions have recognized post-conviction rehabilitation as a valid departure ground. In United States v.

Core, 125 F.3d 74 (2d Cir. 1997), cert. denied, 118 S. Ct. 735 (1998), as here, defendant Reyes was resentenced after vacation of his § 924(c) conviction under Bailey. The district court increased the defendant's offense level with the gun bump but refused to consider a departure on the ground of good conduct in prison in the interim since his original sentencing. The Second Circuit reversed and remanded for resentencing for the district court to consider whether Reyes's rehabilitative efforts were sufficient to justify departure:

When the trial court undertook to resentence Reyes after vacating his § 924(c)(1) conviction, it was required to consider him as he stood before the court at that time. Had Reyes, for example, rendered assistance to the government by cooperating since his initial sentence, we see nothing in the statutes or the Guidelines that would have precluded the court from taking that conduct into account under § 5K1.1. Likewise, if the defendant achieved a rehabilitation sufficiently impressive to be considered "atypical" and to take his case out of the heartland, we see no reason why this should not be considered . . . a basis for departure.

Core, 125 F.3d at 77.

The Core court rejected the argument that the Commission adequately took account of this type of rehabilitation by permitting consideration of "'post-offense rehabilitative efforts (e.g., counseling or drug treatment)'" under the acceptance of responsibility guideline. Id. at 77 (quoting U.S.S.G. § 3E1.1, comment. (n. 1(g))).

We see no indication that the Commission intended its mention of post-offense rehabilitation as one factor affecting acceptance of responsibility to preclude consideration of rehabilitation as a basis for departure. . . . [The district court retains] authority to consider whether the defendant's rehabilitation removes the case from the heartland so as to permit departure.

Core, 125 F.3d at 78. After all, Koon makes clear that "[u]nless departure is expressly forbidden by statute or the Guidelines,

. . . it may be considered in any circumstances not adequately taken into account in kind or degree by the Commission." Id. at 79.

In United States v. Sally, 116 F.3d 76 (3d Cir. 1997), the Third Circuit remanded for resentencing where the district court -- resentencing in connection with the granting of a § 2255 motion five years after the initial sentencing -- erroneously believed it had no authority to depart based on the rehabilitation the defendant had achieved in prison. The government conceded at oral argument in Sally that, under the analysis in Koon, reliance on post-offense rehabilitation as a factor warranting downward departure was proper (id. at 79) and the Third Circuit agreed (id. at 79-82). See also United States v. Kapitzke, 130 F.3d 820, 823-24 (8th Cir. 1997) (rejecting government appeal of departure based on post-offense rehabilitation efforts); United States v. Brock, 108 F.3d 31, 35 (4th Cir. 1997) (holding Koon overruled precedent limiting consideration of post-offense rehabilitation to acceptance of responsibility adjustment; "The Sentencing Commission has not expressly forbidden consideration of post-offense rehabilitation efforts; thus, they potentially may serve as a basis for departure"); United States v. Dyce, 975 F. Supp. 17, 20-21 (D.D.C. 1997) (departing at resentencing based in part on defendant's post-conviction rehabilitation). Cf. United States v. Harrington, 947 F.2d 956, 962-63 (D.C. Cir. 1991) (pre-Koon case remanding for district court to consider post-offense, but pre-trial, drug rehabilitation under acceptance of responsibility guideline and, if extraordinary, as possible departure ground).

Because the district court believed it had no authority to consider a departure to account for the rehabilitation it acknowledged Mr. xxxxxxx had achieved since his first sentencing, the case must be remanded for resentencing in order to give the district court the opportunity to consider a departure on that basis.

C. In Order To Depart On Remand, The District Court Need Only Find That Mr. xxxxxxx's Rehabilitation Takes His Case Outside The "Heartland" Of The Drug Trafficking Guideline.

The cases just cited generally hold that, because the acceptance of responsibility guideline allows consideration of "post-offense rehabilitative efforts (e.g., counseling or drug treatment)," U.S.S.G. § 3E1.1, comment. (n. 1(g)), post-conviction rehabilitation warrants a departure only if it is shown to an extraordinary degree -- a degree beyond that shown by the typical defendant receiving an acceptance of responsibility adjustment. The Third Circuit in Sally, for example, held that

post-offense rehabilitation efforts, including those which occur post-conviction, may constitute a sufficient factor warranting a downward departure provided that the efforts are so exceptional as to remove the particular case from the heartland in which the acceptance of responsibility guideline was intended to apply.

Sally, 116 F.3d at 80. See also Brock, 108 F.3d at 35 (post-offense rehabilitation may justify departure "when present to such an exceptional degree that the situation cannot be considered typical of those circumstances in which an acceptance of responsibility adjustment is granted"); United States v. Kapitzke, 130 F.3d 820, 823-24 (8th Cir. 1997) (post-offense rehabilitation efforts warrant departure "if the defendant's efforts are exceptional enough to be atypical of cases in which the acceptance of responsibility reduction is usually granted").

These cases are applying the heightened departure standard the Koon Court set forth for "encouraged" departure factors "already taken into account by the applicable Guideline." Koon, 116 S. Ct. at 2045. Although Mr. xxxxxxx is confident that the district court would find he has met that standard, he believes it is higher than that required by Koon -- at least in a situation, like his, in which, for reasons unrelated to his rehabilitation, he is not eligible for an acceptance of responsibility adjustment and therefore is subject to no "applicable Guideline" taking any account of his rehabilitation.

1. The Guidelines Do Not Mention Post-Offense Rehabilitation As A Departure Factor.

Koon set forth four categories of departure factors (forbidden, encouraged, discouraged and unmentioned) and summarized the district court's authority to depart in each situation as follows:

If the special factor is a forbidden factor [such as race (§ 5H1.10) or alcohol dependence (§ 5H1.4)], the sentencing court cannot use it as a basis for departure. If the special factor is an encouraged factor [such as victim provocation (§ 5K2.10) or disruption of a governmental function (§ 5K2.7)], the court is authorized to depart if the applicable Guideline does not already take it into account. If the special factor is a discouraged factor [such as the

defendant's family responsibilities (§ 5H1.6) or military record (§ 5H1.11)], or an encouraged factor already taken into account by the applicable Guideline, the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present. . . . If a factor is unmentioned in the Guidelines, the court must, after considering the "structure and theory of both relevant individual guidelines and the Guidelines taken as a whole," [United States v. Rivera, 994 F.2d 942, 949 (1st Cir. 1993)], decide whether it is sufficient to take the case out of the Guideline's heartland.

Koon, 116 S. Ct. at 2045.

As discussed in the prior section, rehabilitation is not a forbidden departure factor. Nor is rehabilitation among the guidelines' "listing [of] certain factors as either encouraged or discouraged bases for departure." Koon, 116 S. Ct. at 2045. Rather than being listed as a possible departure factor, post-offense rehabilitation is mentioned only as a factor to consider in determining whether to adjust the guideline range for acceptance of responsibility. (U.S.S.G. § 3E1.1, comment. (n. 1(g))). As a departure factor, it is unmentioned. Therefore, on remand, the district court is free to depart if it concludes -- as it appears to have concluded already -- that Mr. xxxxxxx's rehabilitation takes his case outside the "heartland" carved out by U.S.S.G. § 2D1.1 (the drug guideline that determined his sentencing range).

2. The Guidelines Do Not Take Any Account Of The Post-Trial Rehabilitation Of A Defendant Who The District Court Finds Went To Trial To Contest His Factual Guilt.

Alternatively, even if the Court were to consider "post-offense rehabilitation" as an "encouraged" departure factor that has already been taken into account in the acceptance of responsibility guideline, the heightened departure standard applicable in such cases is not applicable to the kind of post-trial rehabilitation at issue in Mr. xxxxxxx's case.

First, the acceptance of responsibility guideline was not applied to Mr. xxxxxxx, so his rehabilitation was not "already taken into account by the applicable Guideline." Koon, 116 S. Ct. at 2045 (emphasis added). As Application Note 2 to the acceptance guideline makes clear:

[The acceptance of responsibility] adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.

U.S.S.G. § 3E1.1, comment. (n. 2) (emphasis added). Therefore, a defendant who the district court finds went to trial to contest his factual guilt is simply not eligible for an acceptance of responsibility adjustment, no matter how impressive his "post-offense rehabilitation." See Memorandum to the Honorable Chief Judge Norma H. xxxxxxx, dated Aug. 26, 1997 (probation officer's update to PSR: "The defendant admitted his involvement in the instant offense at the time the presentence report was prepared. He did not admit his involvement in a timely manner and took the government through the burden of a trial. Therefore, no levels were subtracted pursuant to U.S.S.G. § 3E1.1, Application Note 2) ⁽⁵⁾; 10/16/97 Tr. 16-17 (court ruling it could not grant acceptance credit, "as much as I would like to," because Mr. xxxxxxx's post-trial rehabilitation "does not permit me to reach back and say that he had accepted responsibility"). Although the majority in United States v. Harrington, 947 F.2d 956 (D.C. Cir. 1991), declined to read Application Note 2 "to rule out cause other than pretrial admission of guilt for an acceptance of responsibility reduction," id. at 963, that interpretation was based on a provision of the guideline that was eliminated before the date of Mr. xxxxxxx's offense. ⁽⁶⁾ Under the current version of § 3E1.1, that guideline is simply not applicable to a defendant like Mr. xxxxxxx, regardless of the quantity or quality of his post-offense rehabilitation.

Moreover, even if a defendant's "post-offense rehabilitation" could today theoretically overcome a finding that the defendant contested his factual guilt at trial so as to allow an acceptance adjustment, such rehabilitation would have to be pretrial, not post-trial. That was the conclusion of this Court in Harrington. Because Application Note 2 makes clear "that a defendant's pretrial behavior, not his post-trial confession or conversion, is the prime indicator of his acceptance of responsibility for criminal conduct," Harrington, 947 F.2d at 963 (emphasis in original), this Court "h[e]ld that post-offense but pretrial drug rehabilitation effort may justify a two-level reduction for acceptance of responsibility under U.S.S.G.

§ 3E1.1." Id. at 962 (emphasis added). The fact that "post-offense rehabilitation" was later explicitly added to the guideline commentary in no way undermines the validity of the pretrial/post-trial line this Court recognized in Harrington.

Thus, the guidelines nowhere take account of the kind of post-trial rehabilitation at issue in this case. Cf. United States v. Kalb, 105 F.3d 426, 429 (8th Cir. 1997) (guidelines encourage departure for "single act of aberrant behavior" only where defendant would be eligible for probation; with respect to defendants convicted of serious crimes that cannot warrant probation, it is an unmentioned factor, as is "aberrant behavior" in general). Such post-trial rehabilitation is therefore a "mitigating circumstance of a kind . . . not adequately taken into consideration by the Sentencing Commission," U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)) (emphasis added). In order to depart on remand, the district court need not find that it exists to a degree greater than that found in a typical acceptance of responsibility case, but need only find that it places Mr. xxxxxxx outside the heartland of the drug trafficking guideline under which he was sentenced.

III. ASSUMING THE DISTRICT COURT HAD JURISDICTION TO RESENTENCE MR. xxxxxxx AGAIN IN OCTOBER, THE JUDGMENT MUST BE VACATED TO THE EXTENT IT IMPOSES ANY FINE.

A. Standard of Review.

Because the district court's error in including a $3,000 fine in the written judgment did not exist until the court issued the judgment, defense counsel's notice of appeal served to fully preserve this issue. The Supreme Court has recognized that an error in enlarging a sentence outside the presence of the defendant is "so plain in light of the requirements of Rule 43 [of the Federal Rules of Criminal Procedure] that it should [be] dealt with by the Court of Appeals" even when it was not alleged as error below. Bartone v. United States, 375 U.S. 52, 53 (1963).

B. The Court's $3,000 Fine Is Illegal Because It Was Imposed Outside Mr. xxxxxxx's Presence And Because

It Conflicts With The Court's Finding That He Does Not Have The Ability To Pay Any Fine.

Under Rule 43, except in certain circumstances not applicable here, "[t]he defendant shall be present . . . at the imposition of sentence." In Bartone, the judge orally sentenced the defendant to one year imprisonment. In the written judgment, however, the court imposed a sentence of one year and one day. The Supreme Court ruled that this plain violation of Rule 43 should have been corrected by the Court of Appeals.

This Court recently followed Bartone in United States v. Bapack, 129 F.3d 1320 (D.C. Cir. 1997), in which the district court orally sentenced the defendant to pay $62,294.50 in restitution but, in the written judgment, imposed restitution of $72,294.50 (apparently as the result of an arithmetic error). Id. at 1324 n.3. This Court corrected the Rule 43 violation by conforming the written sentence to the oral one. Id. The same should be done here.

Here, the inclusion of a $3,000 fine in the written judgment (App. 95) appears to have been an unintentional carryover from the original judgment (which had been entered by a different district judge) (App. 7). Although the district court mentioned payment of "the balance of your fine" as a condition of supervised release at the oral sentencing, it did not impose any fine in Mr. xxxxxxx's presence. (10/16/97 Tr. 22). Indeed, at the time of the resentencing on remand from this Court's reversal of the schoolyard count, the district court had explicitly found that Mr. xxxxxxx did not have the ability to pay any fine. (9/27/96 Tr. 24). See U.S.S.G. § 5E1.2(d) (requiring sentencing court to consider defendant's ability to pay in determining fine). At the most recent sentencing, the court said nothing to suggest a new finding that Mr. xxxxxxx now had the ability to pay a fine in the amount of $3,000. To the contrary, the court in its written judgment "adopt[ed] the factual findings . . . in the presentence report" (App. 96), which had concluded that the defendant did not have the ability to pay any fine (PSR at 10). See United States v. Anderson, 39 F.3d 331, 358 (D.C. Cir. 1994) (reversing $1,000,000 fine where judge's "implicit determination that [defendant] had the ability to pay it is at war with her explicit acknowledgment that he may not, and is therefore clearly erroneous"), rev'd in inapposite part upon limited reh'g, 59 F.3d 1323 (1995) (en banc).

Regardless of the district court's intentions with respect to the fine, however, the court plainly violated Rule 43 when it imposed that fine outside Mr. xxxxxxx's presence. This Court must therefore conform the oral and written sentences by vacating that part of the written judgment imposing any fine.

CONCLUSION

For the foregoing reasons, the November 3, 1997, judgment against Mr. xxxxxxx must be vacated, leaving in place the court's April 15, 1997, judgment. In the alternative, the November 3, 1997, judgment should be vacated and the case remanded for resentencing in order that the district court may consider a departure to account for Mr. xxxxxxx's post-trial rehabilitation. At a minimum, the Court should vacate that part of the November 3, 1997, judgment that imposes a $3,000 fine.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

_____________________________

LISA B. WRIGHT

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

Counsel for Appellant Michael xxxxxxx

CERTIFICATE OF LENGTH

I hereby certify that the foregoing Brief for Appellant Michael Joseph xxxxxxx does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).

_________________________________

LISA B. WRIGHT

Assistant Federal Public Defender

CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing Brief for Appellant Michael Joseph xxxxxxx have been served by mail on Assistant United States Attorney John R. Fisher, Chief, Appellate Division, 555 Fourth Street, N.W., Room 10-435, Washington, D.C., 20001, this 9th day of March, 1998.

_________________________________

LISA B. WRIGHT

Assistant Federal Public Defender

1. "App. __" refers to pages of the Appendix filed with this brief. Transcript pages are cited by date, i.e., "4/4/97 Tr. __." The transcripts are in the Appendix at Tabs A-E.

2. Since only Count One was subject to a special assessment, the amount should have been $50, not $100.

3. Despite this promise, the court's judgment included no recommendation concerning Mr. xxxxxxx's placement or continued employment.

4. The PSR has been submitted to this Court under seal.

5. This Memorandum updating the PSR has been submitted to this Court under seal.

6. At the time Harrington was decided, § 3E1.1(b) provided that "[a] defendant may be given consideration under this section without regard to whether his conviction is based upon . . . a finding of guilt by a . . . jury." Even considering this now-eliminated provision, Judge Silberman took the position in dissent that Application Note 2 did not permit an acceptance of responsibility reduction for a defendant like Harrington who went to trial to contest his factual guilt. 947 F.2d at 970-71.