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Click here for the full text of this decision FACTS: The defendant-appellee, Ruby D. Henry Bell, was convicted on a plea of guilty for using a telephone to convey a false threat to damage or destroy a building by means of an explosive, in violation of 18 U.S.C. �844(e). At sentencing, the district court granted a defense motion to depart downward within the U.S. Sentencing Guidelines from a criminal history category of VI to a criminal history category of IV. The district court appears to have granted this motion on the basis of overstatement of criminal history, as provided for by Guidelines �4A1.3; however, the sentencing colloquy also discussed Bell’s mental health issues and the court’s concern that incarceration would lead to a break in her mental health treatment, which the court wanted to avoid. HOLDING: Vacated and remanded for resentencing. On April 30, 2003, the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 � the PROTECT Act (the “Act”) � was signed into law. The Act changed the standard of review applicable when courts of appeals consider departures from the guidelines, but only in specified situations. Because the Act became effective after Bell was sentenced and after the government filed its notice of appeal, the court decides 1. whether the Act applies retroactively to litigants in Bell’s position; and 2. if so, whether the Act changes the standard of review in the instant case, given the circumstances surrounding the district court’s departure. The court concludes that the Act’s de novo standard of review may be applied in cases, like the instant one, in which sentencing occurred before the Act’s enactment date. The court cannot see why it would not consider the sentencing colloquy as well as the court’s written reasons. The statutory language at issue neither defines “factor” nor expressly limits an appellate court’s consideration of factors underlying a sentencing departure to those expressed in the statement of reasons. Under these circumstances, and mindful of the statutory canon of construction that terms must be given their ordinary and common meaning, the court is satisfied that the district court’s desire to prevent an interruption of Bell’s mental health care was a factor on which the downward departure was based, at least in part. As the departure thus furthered the goal of �3553(a)(2)(D), the court’s review of that departure is not controlled by �3742(e)(3)(A) or (B), and the court does not apply the de novo standard of review established by the Act. Instead, the court reviews the departure for abuse of discretion, and the findings of fact for clear error. Even under the deferential abuse-of-discretion standard, without enough information to determine what conclusions the district court reached, the court cannot decide whether its actions were within its exercise of discretion. The court therefore vacates Bell’s sentence and remands her case to the district court to clarify its reasoning. OPINION: Per curiam. CONCURRENCE: Jolly, J. “I concur in the vacating of Bell’s sentence. I write only to say, respectfully, that given the seriousness and length of the defendant’s criminal record and the seriousness of the crime she committed, any sentence reduction for the reasons advanced by the district court would seem, in my opinion, unjustifiable. The sentencing guidelines make clear that Bell’s mental and emotional condition is generally irrelevant when considering a downward departure under Guideline � 4A1.3. U.S.S.G. �5H1.3.”

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