United States v. Andrews

United States Court of Appeals
Fifth Circuit
F I L E D
November 11, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-51367
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GEORGE LAWRENCE ANDREWS, also known as Larry Andrews,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
Before SMITH and GARZA, Circuit Judges,
and VANCE,* District Judge.
JERRY E. SMITH, Circuit Judge:
George Andrews challenges an upward
departure regarding his sentence. Concluding
that the district court’s decision was fatally
infected with antagonism toward the United
States Sentencing Guidelines, we reverse and
remand for resentencing by a different district
judge.
I.
Andrews and his mother were indicted for
offenses stemming from a scheme to defraud
* District Judge of the Eastern District of
Louisiana, sitting by designation.

-- 1 of 12 --

2
their elderly neighbor, Doris Carson, of over
$150,000 and other things of value. Andrews
pleaded guilty, to conspiring to commit mail,
bank, and access device fraud and to the sub-
stantive offenses of bank fraud and access de-
vice fraud. In support of the plea, the govern-
ment submitted a factual basis, providing that
between October 1999 and June 2001, An-
drews and his mother conspired to defraud
Carson by, inter alia, negotiating in excess of
100 forged personal checks made payable to
Andrews, creating a bogus notary letter for the
purpose of cashing certificates of deposit be-
longing to Carson, using Carson’s credit cards
to obtain things of value, and using her per-
sonal information to open and use additional
credit accounts.
The Presentence Report (“PSR”) assessed
a total offense level of 14, which reflected
(1) a base offense level of 6; (2) a seven-level
increase pursuant to U.S.S.G. § 2F1.1(b)-
(1)(H) because the loss exceeded $120,000;
(3) a two-level increase for more than minimal
planning; (4) a two-level increase pursuant to
§ 3A1.1(b)(1) because Carson’s age rendered
her vulnerable; and (5) a three-level reduction
for acceptance of responsibility.1 Andrews’s
total offense level of 14, coupled with a crimi-
nal history category of I, yielded a guidelines
range of 15 to 21 months’ imprisonment.
At Andrews’s first sentencing hearing, the
district court notified him that sentencing
would be continued for thirty days and that the
court was considering upwardly departing “up
to and including the statutory maximum.” The
court expressed dissatisfaction with Andrews’s
guideline range, noting that drug couriers
transporting contraband across the border for
$200-$300 “to feed their starving children”
typically face longer imprisonment. Andrews’s
case was co mpared with, and placed in the
same category with, the court’s most recent
upward departure involving defendants who
defrauded individuals out of charitable contri-
butions immediately following the terrorist
attacks of September 11, 2001.
At the sentencing hearing, the government
recommended an upward departure to 37-46
months. After hearing from both sides, the
court orally announced its decision to depart
upwardly to 120 months. The court stated
that “the sentencing guidelines are completely
out of whack,” and sentencing Andrews to 15
months would “violate the Court’s t’aint right
doctrine,” noting, “[t]hat’s probably not a real
technical legal finding.” The court found that
the loss to the victim was traumatic and that
the offense contained an element of identity
theft that the court claimed was not taken into
account by the Sentencing Commission. The
court commented that Andrews’s failure to
make substantial restitution belied his claim of
a recent spiritual awakening.
As a further ground for departure, the court
noted a “bullying aspect” of the offense based
on Andrews’s physical size as compared to
Carson’s, although it conceded that there was
no evidence that the size differential was used
affirmatively. The court found that Andrews’s
distinct acts of criminal behavior would other-
wise justify consecutive sentences, and accord-
ingly the court imposed alternative 21-month
consecutive sentences on each of the six
counts. Andrews entered timely objection on
the ground that the court had failed to give
adequate notice of potential grounds for de-
parture.
1 All references to the United States Sentencing
Guidelines are to the 2000 version, which were the
guidelines in effect when Andrews’s criminal
conduct took place.

-- 2 of 12 --

3
The court followed its oral pronouncement
of sentence with a written opinion. United
States v. Andrews, 301 F. Supp. 2d 607 (W.D.
Tex. 2004). The court first noted that the
facts of Andrews’s case are egregious and that
a guideline sentence of 15 months “would
make a laughing stock of the concept of jus-
tice.” Id. The court also commented on the
federal bench’s need for “some modicum of
discretion” in making sentencing departures
and went on to explain, under four subhead-
ings, its reasons for upward departure. Id. at
609-11.
First, under “Lack of Acceptance of Re-
sponsibility,” the court determined that despite
his guilty plea, Andrews lacked sincerity, had
failed to provide restitution, and sought to
shift blame to his deceased mother. Id. at 609-
10. Next, under a heading entitled “Punish-
ment Consequences Not Present,” the court
stated that Andrews would not be subjected to
additional punishment/loss consequences
typically visited on white collar fraud defen-
dants, because he did not face the “loss of
mega income, removal of professional licenses
and political power, forfeiture of mansions and
limousines and being booted from the country
club.” Id. at 610.
Thirdly, under “Comparison to Other De-
partures by This Court,” the court cited two
fraud cases in which it had upwardly departed
and two in which it had imposed downward
departures. Id. Without discussing the facts
of these cases, the court concluded that An-
drews’s situation was more closely aligned
with the upward departure cases. Id. Finally,
under “Comparison of Sentences in Financial
Crimes with Guideline Punishment in Low-
Level Drug Offenses,” the court again com-
mented on the typical guidelines sentence im-
posed for drug couriers, concluding that “An-
drews’s crime is far worse and deserves more
punishment than the guidelines suggest.” Id.
at 610-11. As a result of its findings, the dis-
trict court imposed an upward departure to
120 months, which is the subject of the instant
appeal. Id. at 612.
II.
Andrews asserts that the failure of the court
to specify grounds for its intended upward de-
parture from the applicable guidelines range
rendered notice of such departure inadequate
and warrants resentencing. De novo review
applies to claims of lack of reasonable notice
as to the grounds for upward departure. Unit-
ed States v. Pankhrust, 118 F.3d 345, 356-57
(5th Cir. 1997) (citing United States v. Knight,
76 F.3d 86, 87 (5th Cir. 1996)).
Under Rule 32(h) of the Federal Rules of
Criminal Procedure,
Before the court may depart from the appli-
cable sentencing range on a ground not
identified for departure either in the pre-
sentence report or in a party’s prehearing
submission, the court must give the parties
reasonable notice that it is contemplating
such a departure. The notice must specify
any ground on which the court is contem-
plating a departure.
Codifying the rule of Burns v. United States,
501 U.S. 129 (1991), the purpose of this pro-
vision is to avoid placing defense counsel in
the position of “trying to anticipate and negate
every conceivable ground on which the district
court might choose to depart on its own initia-
tive.”2
2 United States v. Milton, 147 F.3d 414, 421
(5th Cir. 1998) (quoting Burns, 501 U.S. at 137).

-- 3 of 12 --

4
As a preliminary matter, the court gave ad-
equate and reasonable notice that it was con-
sidering an upward departure at all in the ini-
tial sentencing hearing. Despite the fact that
neither the PSR nor the government had re-
quested an upward departure, the court
continued the case for thirty days, telling
Andrews that it planned to depart upwardly to
the maximum possible sentence for the of-
fenses charged.3
In addition, for many of the factors used in
deciding on an upward departure, the court
gave adequate and precise notice of the spe-
cific grounds. At the initial hearing the court
explicitly stated most of the concerns it had
that were ultimately used, legitimately or not,
to calculate the departure.4 Although these
were mentioned merely as concerns alongside
the order continuing the case, they were suffi-
cient to allow Andrews reasonably to prepare
a meaningful response and engage in adversary
testing as required by Burns.5
Andrews’s arguments to the contrary, so
long as he was specifically notified that these
matters troubled the court in the context of
valid notification of upward departure, he can-
not now complain of surprise that such factors
were considered at the subsequent sentencing
hearing. The touchstone of rule 32 is reason-
able notice, so the fact that the court did not
specifically delineate that it would use those
factors should not make the notice defective;
we should have confidence in the abilities of
the average defense counsel to realize that
mentioning factors in the context of upward
departure notice puts the factors “in play” so
as to allow counsel adequately to prepare for
sentencing.6
On the other hand, the court failed to give
adequate notice of other factors ultimately
used in calculating an upward departure, by
failing to reference them at all at the initial
hearing when the notice of upward departure
was given. The court did not mention the fac-
tor of the physical disparities between An-
drews and Carson until Andrews was actually
sentenced, and did not reference the absence
of other punishment consequences that were
normally applicable to other fraud defendants
until its written opinion supporting the depar-
ture.
The government’s argument, that sufficient
notice was given as a result of the court’s gen-
3 See, e.g., United States v. Clements, 73 F.3d
1330, 1341 (5th Cir. 1996) (holding that intention
to consider an upward departure, transmitted with
six days’ notice in advance of sentencing by fax,
was sufficient).
4 The court noted its belief that Andrews was
trying to shift blame to his deceased mother and
had not made what it considered legitimate efforts
at restitution, which were both ultimately consid-
ered with regard to whether Andrews had accepted
responsibility. The court highlighted its concerns
regarding the disparity between federal drug and
fraud crime sentences under the guidelines, which
was listed under one of the four major sub-point
justifications in the written opinion supporting an
upward departure. Finally, the court compared the
case to another recently-upheld upward departure,
which was also listed as a major sub-point justifi-
cation in the subsequent written opinion.
5 See 501 U.S. at 136.
6 Cf. United States v. Knight, 76 F.3d 86, 88
(5th Cir. 1996) (holding that adequate notice exists
for upward enhancements for factors presently in
the guidelines to allow an average defense counsel
adequately to prepare for sentencing).

-- 4 of 12 --

5
erally discussing “victim-related” and “offense-
related” factors,7 is incorrect, because it goes
against the plain meaning of rule 32(h), requir-
ing that the court “. . . specify any ground on
which the court is contemplating a departure”
(emphasis added). Allowing the court broadly
to open the door to use any victim- or offense-
related departure factor merely by mentioning
one when notice of departure is given, pro-
vides defense counsel no guidance and thus
tramples on the objectives of rule 32(h) and
Burns, of allowing counsel meaningfully to
object. Despite the fact that the court gave
notice of most of the grounds that ultimately
were used for departure, it still was error not
to give notice of all that were considered,
because the plain text of rule 32(h) commands
the court to “. . . specify any ground . . . ”
(emphasis added).
The government has failed to meet its bur-
den of showing that the error in not notifying
Andrews of the specific grounds for upward
departure was harmless. Because, at sentenc-
ing, Andrews appropriately objected to lack of
notice, the burden is on the government to
show that the error was harmless.8 In sentenc-
ing cases, the burden is on the government to
show that absent the error, the sentence would
have been the same.9 The government has
provided only a bare assertion that Andrews
would have done nothing differently if given
proper notice, but Andrews has presented
arguments that he could have made to oppose
the departure if he had had adequate notice, a
situation other courts have found insufficient
to satisfy the government’s burden.10 The er-
ror is not harmless, and Andrews would be
entitled to remand on the ground of defective
notice even if the factors used to grant his up-
ward departure were appropriate, which as we
discuss infra, they were not.
III.
Andrews also contends that his sentence
should be vacated and remanded for resentenc-
ing because the upward departure was based
on improper factors. We agree.
A.
When reviewing whether a sentencing de-
parture is based on appropriate factors, 18
U.S.C. § 3742(e) guides our inquiry and im-
poses a standard of review. It provides as
follows:
Consideration.SSUpon review of the re-
cord, the court of appeals shall determine
whether the sentenceSS
. . .
(3) is outside the applicable guideline
range, and
7 The government argued that the fact that the
district court noted the vulnerability of the elderly
widow gave notice of the use of any “victim-re-
lated” departure factors, and the fact that the case
was compared to another fraud case in which an
upward departure was upheld gave notice of the
potential use of any “offense-related” factors.
8 See United States v. Olano, 507 U.S. 725,
734 (1993).
9 See United States v. Tello, 9 F.3d 1119, 1129
(continued...)
9(...continued)
(5th Cir. 1993) (applying rule to misapplication of
guidelines); see also United States v. Himler, 355
F.3d 735, 743 (3d Cir. 2004) (holding that burden
is on government to show that error in failure to
provide notice is harmless).
10 See, e.g., Himler, 355 F.3d at 743.

-- 5 of 12 --

6
. . .
(B) the sentence departs from the applica-
ble guideline range based on a factor thatSS
(i) does not advance the objectives set forth
in section 3553(a)(2);[11] or
(ii) is not authorized under section
3553(b);[12] or
(iii) is not justified by the facts of the case
. . . .
18 U.S.C. § 3742(e). The standard of review
for this subsection has been recently changed
to de novo by the 2003 amendments pursuant
to the Prosecutorial Remedies and Tools
Against the Exploitation of Children Today
Act (the “PROTECT Act”), as interpreted in
United States v. Bell, 371 F.3d 239, 243 (5th
Cir. 2004). In addition to the explicit require-
ments set forth in § 3742(e)(3)(B), decisions
by the Sentencing Commission that a particu-
lar categorical basis for departure is permissi-
ble or impermissible are determinative in re-
viewing a departure under subsections (i) and
(ii).13
B.
In its written opinion supporting departure,
the co urt listed its justifications under four
subheadings: (1) “Lack of Acceptance of Re-
sponsibility”; (2) “Punishment Consequences
Not Present”; (3) “Comparison to Other De-
partures by This Court”; and (4) “Comparison
of Sentences in Financial Crimes with Guide-
line Punishment in Low-Level Drug-Offenses.”
We examine each in turn.
1.
The court erred in considering failure to
accept responsibility as justification for an up-
ward departure, because that factor is already
considered and factored into the guidelines.
See U.S.S.G. § 3E1.1. Listed under a major
subheading in its opinion supporting upward
departure, the court found that Andrews had
not completely accepted responsibility as
shown by (1) a lack of paid restitution; (2) his
attempts to blame his conduct on the influence
of his mother; and (3) a perceived lack of sin-
cerity in his proffered words of remorse.
Instead of inappro priately granting an up-
ward departure on this ground, the court
should have used its discretion to deny a three-
level downward adjustment for acceptance of
responsibility, which, curiously, the court
instead granted. The comments to § 3E1.1
contemplate denying the downward adjust-
ment where a defendant has pleaded guilty and
admitted fault, but his conduct contradicts his
words. See id. cmt. 3. This was what the
court seemed to find in this case, when it
commented on the defendant’s sincerity and
demeanor, and such a determination by the
11 The objectives enumerated in § 3553(a)(2)
are (A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment; (B) to afford adequate deterrence for
criminal conduct; (C) to protect the public from
further crimes by the defendant; and (D) to provide
the defendant with needed educational training,
medical care or other correctional training.
12 Section 3553(b) provides that the court shall
impose a sentence with the applicable guideline
range unless “there exists an aggravating or miti-
gating circumstance of any kind, or to a degree, not
adequately taken into consideration by the Sen-
tencing Commission in formulating the guidelines.”
13 See Bell, 371 F.3d at 244 (citing United
States v. Thurston, 358 F.3d 51 (1st Cir. 2004)).

-- 6 of 12 --

7
sentencing court would have been subject to
“great deference” on review. See id. cmt. 5.
Although upward departures are allowed
for obstruction of justice in some cases, the
government is wrong in attempting to recast
the “Lack of Acceptance of Responsibility”
justification along those lines. First, upward
enhancements for obstruction of justice are al-
ready accounted for under the guidelines. See
U.S.S.G. § 3C1.1. The government cites two
cases in which upward departures were al-
lowed beyond the two-level increase provided
under the guidelines, but those courts empha-
sized that the government had demonstrated
that the obstruction was so serious that the
guidelines had not taken the activity into ac-
count in the standard § 3C1.1 enhancement.14
Andrews’s conduct is distinguishable from
that in both cases as not nearly as severe. Al-
though he may have attempted to shift blame
on an unavailable co-conspirator (his now de-
ceased mother), his actions did not cause her
to be unavailable as with the defendant in Is-
moila, 100 F.3d at 398. Andrews may have
been remiss in failing to pay adequate restitu-
tion to the victim, but he did not make fraudu-
lent disclosures to officials to understate his
ability to pay or hide assets to avoid obligation
as did the defendant in Merritt, 988 F.2d at
1305. Even if the court meant to base the
justification for upward adjustment under
“Lack of Acceptance of Responsibility” on
obstruction of justice, it never made specific
findings that it was of the kind so egregious
that it deserved stronger treatment than is al-
ready contemplated by a possible upward ad-
justment under § 3C1.1.
2.
The court erred in considering socio-eco-
nomic status in giving Andrews an upward ad-
justment, because that is explicitly a prohibited
departure factor under t he guidelines.15 The
court highlighted “elements of punishment and
loss” that are normally present with other
fraud defendants but not with Andrews, such
as, “loss of mega income, removal of pro-
fessional licenses and political power, for-
feiture of mansions and limousines, and . . .
being booted from the country club and losing
other indicia of social status.”16 According to
this curious logic, a downward departure
should be given to a wealthy white-collar de-
fendant because of loss of his limousine and
“mega income” job. Departure on these
grounds is plainly prohibited.
3.
The court failed to provide adequate justifi-
cation for its upward departure in comparing
14 See United States v. Ismoila, 100 F.3d 380,
398 (5th Cir. 1996) (finding that a combination of
the fact that defendant was harboring a co-con-
spirator while blaming him in court for the offense
was substantially serious obstruction warranting an
upward departure); see also United States v.
Merritt, 988 F.2d 1298, 1310 (2d Cir. 1993) (find-
ing that defendant had gone “far beyond” simple
“failure to pay restitution” and “concealment of
assets” to warrant upward departure despite up-
ward adjustments available under guidelines).
15 See U.S.S.G. § 5H1.10; see also United
States v. Painter, 375 F.3d 336, 338 (5th Cir.
2004) (finding that affluence was improperly con-
sidered as a factor in upwardly departing); see also
United States v. Stout, 32 F.3d 901, 903-04 (5th
Cir. 1994) (finding that defendant’s status as a
judge and maintenance of an “excessive lifestyle”
were improper grounds for departure); see also
United States v. Hatchett, 923 F.2d 369, 373-74
(5th Cir. 1991) (finding that court improperly
considered wealth in granting upward departure).
16 Andrews, 301 F. Supp. 2d at 610.

-- 7 of 12 --

8
Andrews’s case to other fraud cases in which
departures were granted. The court found that
the facts put Andrews in the “firmament” with
defendants granted upward enhancement in
two other criminal fraud cases17 and not with
two others who were granted downward ad-
justments in two other cases. The court mere-
ly cited the cases without any description of
how Andrews’s situation is similar or distin-
guishable.18
Though it might be legitimate to justify an
upward departure based on the similarity of
elements in the case at hand to those in other
fraud cases that justified an upward departure,
the district court favored us with no such ade-
quate analysis. The court merely cited cases,
neither of which is directly on-point as far as
the grounds for an upward departure are con-
cerned.19 The court cannot skirt its obligation
to provide written justifications merely by
summarily stating that the case is similar
enough to others in which the defendants
committed the same class of crime and upward
departures were justified.
4.
The court erred in considering the differ-
ence between drug and fraud sentences under
the guidelines. Mere disagreement with the
structure of the guidelines is not a legitimate
reason for departure.20
Irrespective of whether the court was cor-
rect, as a matter of public policy, that fraud de-
fendants should be punished more severely
than low-level drug offenders who commit of-
fenses merely to provide subsistence to their
families, the court overstepped its authority by
departing on such grounds. The guidelines are
constitutional in the Fifth Circuit and are bind-
ing on federal courts in meting out sentences.21
The guidelines provide a mechanism for judges
to provide upward or downward departures in
particular cases where particular circumstances
exist and particular procedures are followed;
merely allowing departure where a judge dis-
agrees with the proportionality of different
types of crimes would frustrate the purposes
17 The district court cited United States v. Cer-
da, No. 02-50697 (5th Cir. Apr. 23, 2003) (un-
published), and United States v. Delossantos, 85
Fed. Appx. 398 (5th Cir. 2004) (unpublished), in
which we affirmed upward departures.
18 In determining whether Andrews deserves an
upward departure, it is logically irrelevant whether
his situation is similar to that in cases in which
downward departures were granted. If the district
court validly granted downward departures in those
cases, and the only issue in this case is whether
Andrews should be sentenced within the applicable
range or above it, then Andrews’s conduct is
necessarily outside the “firmament” of those cases
in which downward departures were granted.
19 In Cerda, we upheld an upward departure for
defendants who opportunistically used the Sep-
tember 11, 2001, terrorist attacks fraudulently to
solicit money for a phony charity, and in Delos-
santos we affirmed a departure based on post-plea
continuing criminal conduct.
20 See United States v. Lopez, 875 F.2d 1124,
1126 (5th Cir. 1989); see also U.S.S.G. § 5K2.0,
cmt. (stating that “dissatisfaction with the available
sentencing range or a preference for a different
sentence than that authorized by the guidelines is
not an appropriate basis for a sentence outside the
applicable guideline range”).
21 See Mistretta v. United States, 488 U.S. 361,
412 (1989); see also United States v. Pineiro, 377
F.3d 464 (5th Cir. 2004), petition for cert. filed
(July 14, 2004) (No. 04-5263).

-- 8 of 12 --

9
of the sentencing scheme.22 Congress, through
the Sentencing Commission, has made the de-
termination of which crimes deserve more
punishment, and it is not the role of the judge
to displace those legislative decisions.23
C.
In deciding to grant an upward departure,
the court pronounced justifications in its oral
pronouncement that were different from those
in its written opinion.24 Although the govern
ment correctly indicates that some of these
grounds might be legitimate bases for upward
departure (for example, extreme psychological
trauma to the victim),25 it is not evident wheth-
er the statutory framework allows us to con-
sider factors that were in the oral explanation
but not the written one. Though § 3742(e)-
(3)(C), which involves review of the reason-
ableness of the extent of an upward departure,
states that the consideration of reasonableness
should be based on the written justifications,26
no similar limitation explicitly appears in
§ 3742(e)(3)(B), which involves review of the
appropriateness of factors used in granting an
upward departure.27
It is unnecessary for us to resolve this am-
biguity and consider the legitimacy of the oral
justifications for upward departure, because
22 See U.S.S.G. § 1A.3 (“Congress sought pro-
portionality in sentencing through a system that
imposes appropriately different sentences for crim-
inal conduct of differing severity.”)
23 The district court seems more comfortable
with sentencing Andrews based on Dante’s levels
of hell, but such a sentencing scheme has not been
accepted as the law in this or any other federal
circuit. See Andrews, 301 F. Supp. 2d at 609
(stating that the “Eighth Circle” would be appro-
priate for Andrews’s co-conspirator); see also id.
at 612 (stating that the “Fourth Circle” is appropri-
ate for those who prey on the elderly); but cf.
United States v. Winters, 117 F.3d 346, 348 (7th
Cir. 1997) (affirming denial of a downward depar-
ture despite district court’s feeling that defendant
belonged on a lower level of hell, citing Dante’s
Inferno).
24 In its oral pronouncement of sentence, the
court made many findings, including (1) that the
guidelines are “completely out of whack” and the
recommended 15 months for the defendant did not
seem right; (2) that Carson’s loss of financial se-
curity was “traumatic”; (3) that the offense in-
volved identity theft, not taken into account by the
Sentencing Commission when creating the doctrine;
(4) that Andrews’s failure to make substantial
restitution belied his claim of recent spiritual
awakening; and (5) that there was a “bullying as-
pect” to the offense based on the difference in size
(continued...)
(...continued)
between Andrews and Carson.
25 See U.S.S.G. § 2F1.1, cmt. 11(c) (allowing
for upward departure where there is extreme psy-
chological trauma to the victim).
26 Title 18 U.S.C. § 3742(e)(3)(C) states that
the appellate court will consider whether “the sen-
tence departs from the applicable guidelines range,
having regard for the factors to be considered in
this title and the reasons for the imposition of the
particular sentence, as stated by the district court
pursuant to the provisions of § 3553(c).” Title 18
U.S.C. § 3553(c)(2) imposes a requirement that
when a particular sentence is outside the appropri-
ate guidelines range, it must state “[t]he specific
reason for the imposition of a sentence different
from that described, which reasons must also be
stated with specificity in the written order of
judgment and commitment . . .” (emphasis added).
27 See Bell, 371 F.3d at 245 (noting that the
statutory framework in this respect is “unclear”).

-- 9 of 12 --

10
the decision was based on at least one imper-
missible factor that caused the sentence to be
too high, requiring remand, and on remand
here the district court may consider only jus-
tifications given in its written opinion that we
approve of as legitimate.28 Hence, we here
consider only the justifications given in the
written explanation.29
D.
The court’s attempt to insulate its upward
departure by announcing an alternative consec-
utive sentencing ground is improper. The
guidelines provide that fraud offenses “in-
volving substantially the same harm shall be
grouped together into a single Group.”30 Once
grouped, the resulting sentences are to run
concurrently.31 It is startling that the district
court attempted to insulate his use of improper
departures on this groundSSindeed, we recent-
ly have reversed the same judge for precisely
this error.32
IV.
Andrews requests that on remand, this case
should be assigned to a different judge. We
have the supervisory power to do so,33 but it is
“extraordinary” and should be exercised with
the “greatest reluctance”34 We have declined
to reassign absent a showing of bias or antago-
nism indicating that the judge would refuse im-
partially to weigh evidence or make objective
decisions on remand.35
Assignment to a different judge is appro-
priate where the first judge departed based on
his “subjective dissatisfaction with the Guide-
lines’ sentencing constraints.” United States v.
Maldonado-Montalvo, 356 F.3d 65, 73 n.10,
75-76 (1st Cir. 2003). Here the judge based
its departure “first and foremost” on his per-
sonal disagreement with the guidelines.
We exercise the power of reassignment be-
cause of this judge’s brazen antagonism to
28 See 18 U.S.C. § 3742(f)(2)(A) (requiring
remand where departure is based on “an impermis-
sible factor” that caused the sentence to be too
high); see also 18 U.S.C. § 3742(g)(2) (limiting
district court on remand to using justifications for
upward departures to those found in the original
written opinion and approved of by appellate
court).
29 Even if we were to find that all the written
justifications for upward departure were legitimate,
a remand would still have been appropriate be-
cause of possible improper factors that were only
mentioned orally at sentencing and not subse-
quently memorialized in the written opinion. In
Bell, 371 F.3d at 246, we remanded for resente-
ncing where the court identified the possible con-
sideration of mental health, an improper factor in
determining a downward departure, despite the
subsequent written justifications for departure all
being legitimate. Here, the fact that the court or-
ally mentioned a physical disparity in Andrews’s
and Carson’s respective body sizesSSwhile oddly
noting that it was irrelevant to the execution of the
criminal offenseSSmight have been sufficient on its
own to warrant a remand for resentencing.
30 U.S.S.G. § 3D1.2.
31 See U.S.S.G. § 5G1.2, cmt. n.1.
32 See United States v. Candelario-Cajero, 134
F.3d 1246, 1248 (5th Cir. 1998).
33 See United States v. Winters, 174 F.3d 478,
487 (5th Cir. 1999).
34 See id. (internal citations omitted).
35 See id. at 487-88.

-- 10 of 12 --

11
both the tenets of the guidelines and to An-
drews, as indicated during the sentencing pro-
ceedings. This is far from the first time we
have had to reverse this judge for blatantly
electing to ignore the plain language of the
guidelines.36 Accordingly, we remove the dis-
trict judge from this case because he has
breached the barrier between the rule of law
and the exercise of personal caprice.
V.
On remand, the district court’s discretion is
restricted by the dictates of the PROTECT
Act, 18 U.S.C. § 3742(g). According to that
provision, if a case is remanded based on the
use of an improper factor in resentencing, the
court on remand cannot depart from the appli-
cable guidelines range unless the ground “was
specifically and affirmatively included in the
written statement of reasons” and “was held by
the court of appeals, in remanding the case, to
be a permissible ground of departure.” 18
U.S.C. § 3742(g)(2).
We reject the government’s argument,
based on United States v. Phipps, 368 F.3d
505 (5th Cir. 2004), that the limitations im-
posed by § 3742(g) should not apply if the
case is remanded to a different judge. In
Phipps, we held that § 3742(g) is inapplicable
where the district court did not depart in the
original sentence and the need for departure
arose as a result of the appellate mandate. See
id. at 512-13. The Phipps court reasoned that
such a departure did “not fit within the pur-
pose of § 3742(g), ‘to prevent sentencing
courts, on remand, from imposing the same
improper departure using a different the-
ory.’”37
Phipps is distinguishable from this case, be-
cause here the court did impose a departure
that is the subject of the instant appeal; the
grounds for departure did not become “newly-
germane as a result of our correction of the
sentence.” Id. at 512. Moreover, the plain
language of § 3742(g) appears to handcuff any
court on remand; the prohibition is directed to
“a district court on remand” and does not dis-
tinguish between an original sentencing judge
and a new court. 18 U.S.C. § 3742(g) (em-
phasis added). The statute further states that
on remand the court is limited to the reasons
that were “in the written statement of reasons
required by section 3553(c) in connection with
the previous sentencing of the defendant prior
to appeal,” referring to the previous sentencing
generally and not to any particular judge. 18
U.S.C. 3742(g)(2)(A).
Further, under § 3742(g)(2) the only rea-
sons that may be considered by the new judge
on remand are grounds for departure that were
organized under the sub-heading “Reasons for
Departure” in the first judge’s written opinion.
See Andrews, 301 F. Supp. 2d 609-11. The
government argues that other reasons that
were mentioned elsewhere in the opinion, but
were not fully developedSSfor example, the
fact that this case involved identity
theftSSshould be legitimate grounds for depar-
ture on remand because they were referenced
36 See, e.g., United States v. Phillips, 382 F.3d
489 (5th Cir. 2004) (reversing the same judge for
granting downward departure below mandatory
minimum sentence under the guidelines); see also
Candelario-Cajero, 134 F.3d 1246 (reversing the
same judge for assessing consecutive sentences in
contravention of specific guidelines requirement of
concurrent sentences for the specific offense in
question).
37 Id. at 513 (citing H.R. Conf. Rep. No. 108-
66, at 59 (2003), reprinted in 2003 U.S.C.C.A.N.
683, 694).

-- 11 of 12 --

12
somewhere in the written opinion required by
18 U.S.C. § 3553(c).38 Because the judge
chose to place this information in the “Back-
ground” section, rather than specifically delin-
eate why this factor may have warranted an
upward departure under his neatly organized
section entitled “Reasons for Upward Depar-
ture,” any discussion of identity theft was
merely precatory and not “specifically and af-
firmatively included in the written statement of
reasons” as required by the statute.39
Consequently, the new judge on remand
may assess an upward departure only on the
ground that the facts of this case are similarly
egregious to those in other fraud cases in
which courts have granted upward departures,
so long as the justification is adequately devel-
oped. In addition, the judge may consider
making or denying any other upward or down-
ward adjustments that are available under the
guidelines (for example, denying Andrews the
three-level downward adjustment for accep-
tance of responsibility previously granted by
the original judge), because § 3742(g) applies
only to departures and not to enhancements or
adjustments.
The original judge appears to have been
motivated in part by a desire to hammer An-
drews with a long sentence one way or the
other, without paying attention to the dictates
of the law. The irony is that the court would
likely have been able to achieve the result it
desired if it had properly considered the guide-
lines and applied appropriate factors that likely
are present in this case, but now that outcome
will be impeded by the restrictions imposed by
the PROTECT Act on remand for re-
sentencing. At the end of the day, Andrews
may deserve 120 months in prison for his rep-
rehensible criminal acts, but he also deserves
to be sentenced according to law.
VI.
We are disappointed that the United States
Attorney’s Office was unwilling in its brief,
and until pressed hard by this court on oral
argument, to acknowledge even a single error
in the way the original judge conducted these
proceedings. The government’s brief, which
argued stridently that every one of the district
court’s decisions actions was justified, is sur-
prising to this court, because the responsibility
of the Department of Justice, in its representa-
tion of the United States in criminal proceed-
ings, is to do justice and to see to it that the
law is followed, not to obtain the highest pos-
sible sentence in every case. We do under-
stand, however, that the government was
faced with a difficult situation: a district judge
who is not willing to follow the sentencing
guidelines, but a defendant who was guilty of
a serious and despicable offense and deserves
a lengthy term of imprisonment.
The judgment of sentence is VACATED,
and this matter is REMANDED for further
proceedings before a different district judge, in
accordance with this opinion.
38 See Andrews, 301 F. Supp. 2d at 608 n.2.
39 See 18 U.S.C. § 3742(g)(A)(2) (emphasis
added).

-- 12 of 12 --