author: BIRCH, Circuit Judge:

text:
    Daniel Eugene REMETA, Petitioner-Appellant, v. Harry K. SINGLETARY, Jr., Secretary, Florida Department of Corrections, Respondent-Appellee.
    No. 94-3058.
    United States Court of Appeals, Eleventh Circuit.
    May 31, 1996.

      Judith Dougherty, Assistant Capital Collateral Representative, Office of the Capital Collateral Representative, Todd Scher, Tallahassee, Florida, for appellant.
    Kenneth S. Nunnelley, Assistant Attorney General, Department of Legal Affairs, Daytona Beach, Florida, for appellee.

      Before TJOFLAT, Chief Judge, and BIRCH and DUBINA, Circuit Judges.
   BIRCH, Circuit Judge:

Daniel Eugene Remeta appeals the district court’s order denying his petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254. Remeta raises numerous issues on appeal with respect to both his conviction and sentence. We conclude that Remeta’s claim regarding the state’s alleged violation of the Interstate Agreement on Detainers (“IAD”), Fla.Stat. § 941.45, is an issue of first impression in this circuit and therefore warrants discussion. We find all remaining claims to be without merit and affirm the district court’s denial of his habeas petition for the reasons set forth in its opinion.

I. BACKGROUND

The facts relevant to this appeal are summarized briefly: Remeta committed a series of murders, attempted murders, and robberies in three different states during a two-week crime spree in 1985. On February 8, Remeta murdered Mehrle W. Reeder while robbing a gas station in Ocala, Florida. Two days after the Florida murder, Remeta and a companion shot Camillia Carroll, a cashier at a convenience store in Texas, after robbing her at gunpoint; Carroll survived the incident and testified against Remeta at his Florida trial. On February 13, Remeta shot and killed the manager of a highway gas station in Kansas. Shortly thereafter, the car in which Remeta and several other individuals were driving was pulled over by a Kansas sheriff; one of the passengers in the car shot the sheriff twice. Remeta and his companions subsequently fled to a grain elevator, where they abducted two men after stealing their truck, made them lie face down in the road, and killed them with gunshots to the back of the head. Remeta pleaded guilty to each of the three Kansas homicides, receiving two consecutive life sentences for killing the gas station manager and two consecutive life sentences for killing the grain elevator employees.

Remeta was extradited to Florida, where he was tried, convicted, and sentenced to death for the Ocala murder. On direct review, his conviction and sentence were affirmed by the Florida Supreme Court. Remeta v. State, 522 So.2d 825 (Fla.1988). The United States Supreme Court denied his petition for a writ of certiorari. Remeta v. Florida, 488 U.S. 871, 109 S.Ct. 182, 102 L.Ed.2d 151 (1988). Remeta next filed both a motion for state post-conviction relief with the state circuit court pursuant to Florida Rules of Criminal Procedure 3.850 and a state habeas petition with the Florida Supreme Court. Following an evidentiary hearing, the trial court denied the Rule 3.850 motion. The Florida Supreme Court consolidated the Rule 3.850 appeal and the habeas petition, affirmed the trial court’s denial of the motion for post-conviction relief, and denied the habeas petition. Remeta v. Dugger, 622 So.2d 452 (Fla.1993). Remeta then petitioned the federal district court for the Middle District of Florida for habeas corpus relief pursuant to 28 U.S.C. § 2254. In 1994, the district court denied the petition after finding that Remeta was either procedurally barred or not entitled to relief on the claims raised therein. The district court also granted Remeta’s motion for a certificate of probable cause to appeal. This appeal followed.

II. DISCUSSION

In reviewing a petition filed under 28 U.S.C. § 2254, we presume that the factual findings made by a state court of competent jurisdiction following a hearing on the merits are correct if evidenced by reliable and adequate indicia. Hamilton v. Ford, 969 F.2d 1006, 1010 (11th Cir.1992), cert. denied, 507 U.S. 1000, 113 S.Ct. 1625, 123 L.Ed.2d 183 (1993). We review factual conclusions made by the district court under a clearly erroneous standard. Id. We review mixed questions of law and fact de novo. Id. at 1034.

A. Procedural Default

We note at the outset that the appellee raises the issue of procedural default, stating that Remeta failed to present his IAD claim either at trial or on direct appeal. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In its ruling on Remeta’s consolidated petition for state habeas relief and motion for Rule 3.850 post-conviction relief, the state court expressly found nine claims set forth by Remeta to be procedurally barred; the court went on to conclude that Remeta’s IAD claim “[p]resent[ed] a novel argument regarding extradition; however, we find that claim to be without merit and to be inappropriately raised in a 3.850 motion.” Remeta v. Dugger, 622 So.2d at 454.

As noted, Remeta raised the challenge to his conviction based on Florida’s alleged violation of the IAD in both his state habeas petition and his Rule 3.850 motion; these separate challenges were consolidated for purposes of appellate review by the Florida Supreme Court. While we acknowledge that the state supreme court’s ruling in this case is not a model of clarity, we disagree with the state’s contention that the court found Remeta’s claim to be procedurally defaulted or, in the alternative, lacking in merit. Rather, we resolve that the state court’s decision constituted a ruling on the merits with respect to Remeta’s state habeas petition and a finding of possible procedural default with respect to his motion for post-conviction relief. Because the Sykes procedural default rule does not preclude federal habeas review of a petitioner’s constitutional claim if the state court adjudicates the federal claim on the merits, Hardin v. Black, 845 F.2d 953, 958 (11th Cir.1988), we therefore proceed to address the underlying merits of Remeta’s challenge.

B. IAD Claim

While imprisoned in Kansas State Penitentiary in 1985, Remeta signed a document entitled “Request for Disposition of Indietments[,] Informations or Complaints,” in which he stated:

I hereby agree that this request will operate as a request for final disposition of all untried indictments, informations or complaints on the basis of which detainers or other criminal charges have been lodged against me from your state. I also agree that this request shall be deemed to be my waiver of extradition with respect to any charge or proceeding contemplated hereby or included herein, and a waiver of extradition to your state to serve any sentence there imposed upon me, after completion of my term of imprisonment in this state. I also agree that this request shall constitute a consent by me to the production of my body in any court where my presence may be required in order to effectuate the purpose of the Agreement on Detainers and a further consent voluntarily to be returned to the institution in which I am now confined.

R41^627. Florida Assistant State Attorney John Futch subsequently filed the following request for temporary custody of Remeta, pursuant to the terms of the LAD, with Herb Mashner, director of the Kansas penitentiary at which Remeta was incarcerated:

I hereby agree that immediately after trial is completed in this jurisdiction I will return the prisoner directly to you or allow any jurisdiction you have designated to take temporary custody.

R41-4639. On the same day this request was sent, Futch informed Mashner that he would be sending “under separate cover ... an Executive Agreement stating that if Remeta should receive the death penalty for the offense here in Florida that he will not be returned to Kansas.” R41-4632. The record reveals that in 1988, three years after Kansas relinquished temporary custody of Remeta to Florida, a Kansas Department of Corrections’ (“DOC”) official forwarded a letter to the Florida DOC asking that a detain-er be lodged against Remeta in favor of the Kansas State Penitentiary. R41^615. This letter explicitly reminded the Florida DOC that Kansas’ release of Remeta “was under the term[s] of the Interstate Agreement on Detainers. Under this Agreement, [Florida] is obligated to return Remeta upon completion of all litigation.” Id. Remeta remains incarcerated, and on death row, in Florida.

In this habeas corpus proceeding, Remeta contends that (1) his waiver of extradition was not knowing, intelligent and voluntary, and (2) Florida’s failure to abide by the terms of the LAD — by trying him without a valid extradition waiver and by failing to return him to Kansas — either effectively divested Florida of jurisdiction to try him or rendered his conviction invalid. Remeta seeks to have his conviction set aside on this basis. Whether violation of the provisions of the LAD concerning extradition and return to a “sending state” following trial can constitute reversible error meriting habeas relief is an issue of first impression in this circuit.

The LAD is a compact entered into by forty-eight states and the United States for the purpose of disposing efficiently of outstanding criminal charges brought against prisoners incarcerated in other jurisdictions. Hunter v. Samples, 15 F.3d 1011, 1012 (11th Cir.1994). The central provisions of the LAD are Articles III and IV. Article III provides a procedure by which a prisoner against whom a detainer has been filed can demand a speedy disposition of the charges giving rise to the detainer. United States v. Mauro, 436 U.S. 340, 351, 98 S.Ct. 1834, 1842, 56 L.Ed.2d 329 (1978). If the prisoner does make such a request, the jurisdiction that filed the detainer must bring him to trial within 180 days. Id., 436 U.S. at 351-53, 98 S.Ct. at 1843. The prisoner’s request operates as a request for the final disposition of all untried charges underlying detainers filed against him by that state, and is deemed to be a waiver of extradition. Id. Under Article IV, a signatory jurisdiction that has filed a detainer may receive temporary custody of a prisoner incarcerated in another jurisdiction, and then prosecute that prisoner for outstanding charges. Hunter, 15 F.3d at 1012.

The district court found that Remeta actively sought the death penalty in Florida, and therefore not only knew the consequences of his waiver of extradition, but also possessed all the necessary information to object to extradition at the time Florida sought his presence for trial. Remeta argues that the district court’s findings in this regard are clearly erroneous and that the fact that Remeta requested his Kansas trial attorney as counsel in the Florida proceedings demonstrates that he did not understand the import of the extradition waiver. Remeta asks, at the minimum, that we remand the case for an evidentiary hearing on this question.

As an initial matter, although the district court provided no record citation to support its finding that Remeta was aware that he might receive the death penalty in Florida, our independent review of the record reveals that this determination was not clearly erroneous. The record contains letters from Remeta written while incarcerated in Kansas that sustain the district court’s conclusion that Remeta understood the possible consequences of being extradited. In one letter, Remeta wrote, “If I don’t try for the death penalty I’ll die in some prison, [t]his is why I’m trying to get extradited.” R39-4357. In another letter, he stated, “I’m gonna try for the death penalty if I can.” Id. at 4359. A psychiatrist who authored a clinical evaluation of Remeta for the Kansas DOC also remarked that Remeta “hopes that he can be transferred to one of the states where he is being sought and he can get the death penalty.” R40-4594. We conclude that the district court did not err in finding that Remeta was informed of the possible consequences of being extradited and tried for murder in another state prior to signing an extradition waiver.

We need not decide, however, whether the district court properly concluded that Remeta’s extradition waiver was knowing and intelligent. Even assuming that the waiver was not knowing and intelligent, the denial of Remeta’s statutory right to a pre-extradition hearing would not entitle him to habeas relief. Remeta suggests that Florida’s flagrant violation of the LAD effectively deprived that state of jurisdiction to try him for murder. He fails, however, to point us to any decisional or statutory law establishing that the LAD has a jurisdictional element, nor does he provide any legal authority for the proposition that a due process violation of the sort claimed here renders a jury’s verdict void on jurisdictional grounds. The LAD does dictate that a state’s failure to try a prisoner within the statutory time period, prior to being returned to the “sending” state, must result in dismissal of any untried portion of the outstanding indictment. See Fla.Stat. § 941.45(e). However, there is no provision in the LAD dictating that failure either to obtain a knowing and intelligent waiver of extradition or to provide a prisoner with a pre-transfer hearing deprives the “receiving” state of jurisdiction. To the contrary, the Supreme Court has held:

[D]ue process of law is satisfied when one present in court is convicted of a crime after having been fairly apprised of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.

Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952); see also Shack v. Attorney General of State of Pa., 776 F.2d 1170, 1172 (3rd Cir.1985), cert. denied, 475 U.S. 1030, 106 S.Ct. 1234, 89 L.Ed.2d 342 (1986) (where petitioner was not given pretransfer hearing, court held that “the existence of a procedural defect in [petitioner’s] extradition proceedings did not impair [the state’s] power to try him and ... his confinement does not violate due process.”) We conclude that Kansas’s alleged failure to obtain from Remeta a knowing and voluntary waiver of extradition coupled with its concomitant denial of a pre-transfer hearing, even if assumed to be true, did not deprive ' Florida of jurisdiction to try him for murder.

As stated earlier, the record is ambiguous as to whether Florida entered into a separate agreement with Kansas stipulating that Remeta would not be returned if he received the death penalty and whether such an agreement released Florida of its obligations under the LAD. We also do not know whether Kansas is currently seeking Remeta’s return to serve the remainder of his sentence. Even if we were to assume that Florida has failed to honor its statutory commitment to Kansas under the LAD, however, this appears to be a matter exclusively between Florida and Kansas. The resolution of an IAD dispute between these two states (if such a dispute exists) may necessitate that Kansas seek an injunction to force Florida to abide by its agreement, return Remeta, and allow him to serve out his Kansas sentence. This is not a matter for federal habeas corpus review.

More importantly, we previously have held that LAD violations are not cognizable in habeas proceedings absent a showing that the violation prejudiced the rights of the accused by affecting or impugning the integrity of the fact-finding process. Hunter, 15 F.3d at 1012; see also Seymore v. State of Ala., 846 F.2d 1355, 1359 (11th Cir.1988) (holding that “violations of the LAD are non-fundamental defects and — absent a showing of some sort of prejudice — are uneognizable in a federal habeas proceeding”), cert. denied, 488 U.S. 1018, 109 S.Ct. 816, 102 L.Ed.2d 806 (1989). As discussed earlier, Remeta has neither alleged nor shown that the two LAD violations at issue in this appeal, viewed in tandem, have affected or undermined the integrity of the trial. Assuming that Remeta did not voluntarily waive extradition, the alleged failure of Kansas to provide Remeta with a pre-transfer hearing did not divest Florida of jurisdiction to try him for murder. By the same token, Florida’s failure to return Remeta to Kansas to serve the remainder of his Kansas sentence in accordance with the terms of the LAD is a matter between Kansas and Florida, and is not reviewable by this court in a habeas corpus proceeding. In the absence of any showing of prejudice to Remeta caused by these alleged violations of the LAD, we are compelled to affirm the district court’s decision to deny habeas, relief.

III. CONCLUSION

Remeta asks that we set aside his conviction due to Florida’s alleged breach of its commitments under the LAD. Remeta urges us to strip the Florida court of jurisdiction to try him for murder based on that state’s allegedly flagrant and egregious violations of the statute; yet, Remeta is unable to point to either statutory or decisional law supporting such a directive. Moreover, even assuming, arguendo, that Florida did fail to abide by its obligations under the LAD, there is no indication from either the records or briefs that the integrity of the trial itself was undermined. The district court’s order denying habeas corpus relief is AFFIRMED.

      . Shortly before the release of this opinion the Antiterrorism and Effective Death Penalty Act of 1996 (the “Act”) was signed into law; the Act aims to expedite the process of federal collateral review. The Act specifically provides, in pertinent part:
      An application for a writ of habeas corpus on behalf of a person pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
      (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States; or
      (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
      Title I, Sec. 104, § 3(d)(1), (2) (1996). Our review of this case indicates that the state adjudiction of Remeta’s IAD claim resulted in a decision that was neither contrary to clearly established Supreme Court precedent nor based on unreasonable factual determinations. Therefore, under the express terms of the new law, Remeta would not be entitled to habeas relief. Because we deny the petition according to pre-existing standards, however, we decline to consider either the applicability of the Act to this case or whether the Act provides a basis for the denial of relief.

      . 28 U.S.C. § 2254(d) provides, however, that a petitioner can rebut this presumption by showing that
      (1) the merits of the factual dispute were not resolved in the state court hearing;
      (2) the factfinding procedure employed by the state court was not adequate to afford a full and fair hearing;
      (3) the material facts were not adequately developed at the state court hearing;
      (4) the state court lacked personal or subject-matter jurisdiction;
      (5) the petitioner was indigent and the sate court failed to appoint counsel, in deprivation of his constitutional rights;
      (6) the petitioner did not receive a full, fair and adequate state hearing;
      (7) the petitioner was otherwise denied due process of law in the state court proceeding; or
      (8) the state court factual determinations are not supported by the record.

      . This executive agreement was not contained in the record before the district court, nor is it contained in the record on appeal.

      . A detainer is a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent. Stewart v. Bailey, 7 F.3d 384, 389 (4th Cir.1993) (quoting Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct. 3401, 3403, 87 L.Ed.2d 516 (1985)).

      . It is interesting to note that in Shack, the Third Circuit observed that although “the right to pretransfer hearing is an important one ... [the] denial of that right by a state official is a violation of Section 1983 of the Civil Rights Act.” Id. at 1173. The court further remarked that congressional silence regarding the need for a pretransfer hearing as a jurisdictional prerequisite to a trial in the receiving state may be "attributable to an unwillingness on [Congress’s] part to flog one state for the failings of another." Id. Indeed, in this case it is Kansas that allegedly failed to provide Remeta with a pre-transfer hearing after obtaining from him an involuntary waiver; we are not persuaded that Kansas’s alleged violation of the IAD should be found to have deprived Florida of jurisdiction to try Remeta.


source: Caselaw Access Project

author: BY THE COURT:

license: Public Domain

text:
    LIFECARE INTERNATIONAL, INCORPORATED, a California corporation, Plaintiff-Appellee, v. CD MEDICAL, INC., a Delaware corporation, C.D. Medical, B.V., a Dutch corporation, Defendants-Appellants.
    No. 94-4595.
    United States Court of Appeals, Eleventh Circuit.
    May 31, 1996.
    Daniel S. Pearson, Linda Ann Wells, Holland & Knight, Miami, FL, for Appellants.
    James B. Tilghman, Jr., Stewart, Tilghman, Fox & Bianchi, P.A., Miami, FL, for Lifecare International.

      Before EDMONDSON, Circuit Judge, HILL, Senior Circuit Judge, and MILLS , District Judge.

       Honorable Richard Mills, U.S. District Judge for the Central District of Illinois, sitting by designation.

   BY THE COURT:

The motion to recall the mandate filed by Movant Craig Edward Stein is GRANTED.

We modify and supplement our opinion in this case with this observation:

The statements by the Court in discussing the issues raised in this appeal concerning alleged bias on the part of Mr. Stein are based upon the record created by the parties to this case. As a nonparty, Mr. Stein was not entitled to present evidence or otherwise to respond to the allegations. Thus, the statements in the opinion should not be interpreted to represent conclusions of the Court about the actual conduct of Mr. Stein.


author: HATCHETT, Circuit Judge:

text:
    Frank VELASCO, Petitioner-Appellant, v. Daniel HORGAN, United States Marshal, Southern District of Florida, Respondent-Appellee.
    No. 95-4378.
    United States Court of Appeals, Eleventh Circuit.
    June 10, 1996.
    Paul Rashkind, Asst. Federal Public Defender, Howard M. Srebnick, Roy Black, P.A., Miami, FL, for appellant.
    Kendall Coffey, U.S. Atty., Linda Collins Hertz, Dawn Bowen, Christopher R.J. Pace, Asst. U.S. Attys., Miami, FL, for appellee.
    Before HATCHETT and BLACK, Circuit Judges, and CLARK, Senior Circuit Judge.
   HATCHETT, Circuit Judge:

Appellant, Frank Velasco, appeals the district court’s decision denying his petition for writ of habeas corpus. Because Velasco has been removed to New York following the Southern District of Florida’s denial of habeas corpus, this district lacks jurisdiction to provide Velasco relief. Thus, this appeal is moot.

BACKGROUND

On February 2, 1995, United States marshals arrested Velasco in Florida on an indictment and complaint issued in the Southern District of New York. Velasco made his initial appearance before a magistrate judge in the Southern District of Florida under Federal Rule of Criminal Procedure 40, and the government made an application for detention. On February 6, 1995, the magistrate judge held a detention hearing, denied the government’s request for an order of detention, and ordered that the Marshal release Velasco on bond. The magistrate judge, pursuant to Local Rules of the United States District Court for the Southern District of Florida, Magistrate Judge Rule 4(a)(2), stayed Velasco’s release order pending the government’s decision whether to appeal. The magistrate judge set Velasco’s removal hearing for February 13,1995.

Both the government and Velasco sought review of the magistrate’s release order but in different forums. On February 7, 1995, the government, pursuant to 18 U.S.C. § 3145(a), appealed the magistrate’s release order in the district court, Southern District of New York. District Judge Tate (S.D.N.Y.) held a telephonic hearing between the government and Velasco’s counsel and issued a stay of the Southern District of Florida magistrate’s release order. Subsequently, on February 9,1995, in the Court of Appeals for the Second Circuit, Velasco moved to dissolve Judge Tate’s stay order and for a writ of mandamus directing the Southern District of New York to hold an immediate hearing on the government’s appeal of the magistrate’s release order. In an order dated February 14, 1995, the Second Circuit denied Velasco’s motions in all respects. The Second Circuit’s decision allowed Judge Tate’s stay of the release order to remain in effect.

On February 10, 1995, the district court in the Southern District of Florida held a hearing on Velasco’s emergency motion to dissolve the automatic stay that the magistrate judge had imposed. The government argued that as a result of the stay order Judge Tate had imposed, the Southern District of Florida lacked jurisdiction to consider the issue. On February 28, 1995, the Southern District of Florida issued an order affirming the magistrate’s order and dissolving the automatic stay. That order, however, did not address the stay Judge Tate had imposed. Velasco posted the required bail, but the Marshal would not release him because of the stay that Judge Tate issued on February 7, 1995. Consequently, Velasco filed a Petition for Habeas Corpus alleging that because a valid order set the conditions of bail, and because Velasco posted the required bail, the Marshal violated Velasco’s constitutional rights in refusing to release him.

On March 20, 1995, the Southern District of Florida issued an order denying Velasco’s petition for writ of habeas corpus. The district court stated that it did not have jurisdiction to resolve the dispute between the district courts of the Southern District of Florida and the Southern District of New York. That same day, the magistrate judge issued a warrant to remove Velasco in custody to New York. Velasco filed an immediate appeal of the order denying habeas corpus relief and filed an emergency motion to this court to stay his custodial transportation to New York pending resolution of the pendant appeal. On that evening, a panel of this court denied the emergency motion to stay custodial transportation pending the appeal. Thereafter, the marshals transported Velasco to New York.

CONTENTIONS

Velasco contends that his removal to New York did not defeat the Southern District of Florida court’s jurisdiction and did not moot this appeal. He contends that the Southern District of Florida, as the arresting district, had jurisdiction and was obliged to exercise it to grant him habeas corpus relief.

Velasco also contends that the Southern District of Florida had full authority to set and review the terms of his pretrial release while he remained in custody in that district. Velasco argues that because the district court for the Southern District of Florida affirmed the magistrate’s order and the government failed to appeal the affirmance, he should have been released on bail.

The government contends that the removal of Velasco to New York moots the one issue that he raised in the habeas corpus action. The government, however, contends that even if this court finds that jurisdiction existed in the district court, this court lacks jurisdiction because Velasco’s issue no longer presents a live “case or controversy” under Article III of the Constitution. Velasco’s claim, the government argues, is not likely to recur because Velasco has been transferred from the Southern District of Florida to New York.

The government further contends that the district court properly decided to refrain from deciding the dispute between the Southern District of Florida and the Southern District of New York concerning the appropriateness of Velasco’s pretrial detention because the Southern District of New York, where the charges against Velasco remained pending, possessed original jurisdiction over the magistrate’s release order.

ISSUES

The following issues are presented: (1) whether the Southern District of Florida had jurisdiction over the habeas corpus proceeding; and if so, (2) whether the district court should have granted Velasco a writ of habeas corpus to enforce his pretrial release orders.

DISCUSSION

Velasco’s removal to New York effectively divested this court of jurisdiction because this court cannot provide him any relief. We point out that at least one other circuit has been faced with this issue. The Second Circuit held that an arresting district, where a defendant remains incarcerated, should exercise jurisdiction over that defendant’s habeas corpus petition challenging a magistrate’s removal warrant. United States v. Plain, 748 F.2d 620 (11th Cir.1984); see also Roba v. United States, 604 F.2d 215 (2d Cir.1979) (holding that the district court in the arresting district had jurisdiction to adjudicate the merits of the petition).

CONCLUSION

For the foregoing reasons, this appeal is dismissed as moot.

DISMISSED.

       This appeal resulted in part from a Local Rule of the United States District Court for the Southern District of Florida, Magistrate Judge Rule 4(a)(2), which reads as follows:
      Government Appeal of Bond. At the conclusion of a bond hearing pursuant to 18 U.S.C. § 3142 in which a Magistrate Judge has set a bond which will result in release of a defendant if the conditions of the bond are met, an announcement in open Court by the prosecutor that the government intends to appeal the bond to a District Judge shall result in an immediate stay of the bond set by the Magistrate Judge. Such stay shall continue until 5:00 p.m. that day, or in the event bond is set in open court after 5:00 p.m., until 9:30 a.m. the morning of the following business day, unless the prosecutor shall file a written notice of appeal with the Clerk, upon which the stay shall become permanent unless and until it is lifted by a District Judge. The notice of appeal may be summary in form and need not be typed, but it shall be followed on or before the close of the business day next following the day the bond was set by the filing of a detailed factual statement, in proper form, setting forth the grounds of the appeal.
      Under Magistrate Judge Rule 4(a)(2), the government can simply file an informal notice of appeal and nullify a magistrate's release order, thus, creating an automatic stay. The Southern District of Florida should revisit Magistrate Judge Rule 4(a)(2) or, at the least, study the situation this case presents.


author: CLARK, Senior Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Wesley BONNER, Defendant-Appellant.
    Nos. 94-8660, 94-8713.
    United States Court of Appeals, Eleventh Circuit.
    June 13, 1996.

      R. Gary Spencer, Federal Defender Program, Atlanta, GA, for Appellant.
    David C. Nutter, Asst. U.S. Atty., Atlanta, GA, for Appellee.
    Before BIRCH, Circuit Judge, and CLARK and WEIS, Senior Circuit Judges.

       Honorable Joseph F. Weis, Jr., Senior U.S. Circuit Judge for the Third Circuit, sitting by designation.

   CLARK, Senior Circuit Judge:

In 1989, defendant John Wesley Bonner pled guilty to attempted bank robbery (No. l:89-00298-CR-l), and was sentenced to 33 months imprisonment and 3 years supervised release. Assistant United States Attorney Janet F. King handled the prosecution. Defendant was released from prison and began serving his term of supervised release on May 19,1992.

From October 9, 1992, until October 25, 1993, defendant made twenty anonymous, threatening telephone calls to Assistant U.S. Attorney King from pay telephones in the Atlanta, Georgia area. During the telephone calls, defendant made the following threats:

“You have caused me a lot of misery and I will cause you some soon.”
“I’m going to get you.”
“You’ve got a old debt to pay.”
“I’m going to destroy you.”
“I’m gonna cut you open.”
‘Tour time is about up honey.”
‘Tour existence bothers me.”

Defendant made the second of two calls on October 25,1993, from a pay phone in view of Federal Bureau of Investigation agents who were conducting surveillance, and was immediately arrested. He was indicted on twenty counts of threatening to assault and murder an Assistant U.S. Attorney in retaliation for her previous prosecution of him, in violation of 18 U.S.C. § 115(a)(1)(B) (No. 1:93-CR-461-1). A petition for violation of his supervised release term based on his arrest was filed in his earlier conviction.

Defendant pled guilty to all twenty counts in the indictment. The district court overruled the defendant’s objection that the threatening calls should be grouped because they were all part of the same course of conduct, and gave him a five-level adjustment for multiple counts under U.S.S.G. § 3D1.4. Defendant was sentenced to 37 months imprisonment, one year supervised release, and a $1,000 special assessment, and appealed, our case No. 94r-8660.

The district court subsequently revoked his term of supervised release in the attempted bank robbery conviction. The district court found that the defendant’s threats of “I’m going to cut you open, I want revenge, it won’t be long now” fell within the § 4B1.2 definition of crime of violence and, therefore, within a Grade A violation as defined by U.S.S.G. § 7Bl.l(a). Defendant was sentenced to 15 months imprisonment consecutive to the term of imprisonment in the threats conviction. Defendant appealed, ornease No. 94-8713. This court consolidated the two appeals.

DISCUSSION

A. Multiple Count Adjustment

Bonner argues that all the acts or telephone calls were connected by the common criminal objective of threatening the victim, and constituted a single offense involving substantially the same harm to the same victim, although over a period of a year. He contends that, despite the exclusion from grouping under U.S.S.G. § 3D1.2(d), the counts could still be grouped under § 3D1.2(b). Bonner maintains that his case is distinguishable from those where multiple acts of violence occur to the same victim on different occasions because he did not act on his threats.

If a defendant is convicted of multiple counts, the guidelines require the sentencing court to group closely related counts. “All counts involving substantially the same harm shall be grouped together in a single Group.” Multiple counts involve substantially the same harm when the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior. However, all offenses covered under Chapter Two, Part A are specifically excluded from grouping under § 3D1.2(d). Thus, because the defendant’s offense level was computed under § 2A6.1(a), i.e., Chapter Two, Part A, the counts were excluded from grouping under subsection (d). This, however, does not necessarily preclude grouping under another subsection.

Under § 3D1.2(b), counts involve substantially the same harm “[w]hen counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.” “[Cjounts that are part of a single course of conduct with a single criminal objective and represent essentially one composite harm to the same victim are to be grouped together, even if they constitute legally distinct offenses occurring at different times.” However, multiple, separate instances of fear and risk of harm, not one composite harm, occur when the defendant robs or rapes the same victim on different occasions and the offenses are not to be grouped together. Also, in an example given in the guidelines, where “[t]he defendant is convicted of two counts of assault on a federal officer for shooting at the officer on two separate days[,] the counts are not to be grouped together.” The decision on whether to group several counts involving the same victim is not always clear cut, and although existing case law may provide some guidance, courts should look to the underlying policy as stated in the Guidelines’ Introductory Commentary. The Introductory Commentary recognizes that different rules are required for dealing with multiple-count convictions involving offenses with repetitive and ongoing behavior and those that are oriented more toward single episodes of behavior. This court reviews a district court’s refusal to group multiple counts of conviction with due deference.

Other circuits have addressed this issue. In United States v. Wilson, the defendant contacted an ex-girlfriend to hire someone to kill his wife. The defendant pled guilty to six counts of use of interstate facilities with the intent that his wife be killed by making five telephone calls and mailing one letter to his ex-girlfriend over a two-week period. The sentencing court refused to group the counts. The Sixth Circuit vacated, holding that grouping under § 3D1.2(b) was required because the separate acts created a single “harm.” The court reasoned that the defendant’s wife was “the victim of all six acts and the six acts involved the same objective: her death.”

In United States v. Norman, the defendant pled guilty to making two false reports over a two-day period to an airline claiming that his ex-wife’s suitor was aboard a plane carrying a firearm and explosives. After the third false report, airport security officers located the suitor, removed him from the airplane in handcuffs, questioned him, and released him. The sentencing court refused to group the counts. The Tenth Circuit vacated, holding that the counts should have been grouped under § 3D1.2(b). Relying on Wilson, the court determined that the scheme had only one course of conduct (making false reports to the airline); only one criminal objective (to harm the suitor); and only one composite harm to one victim (subjecting the suitor to arrest).

In United States v. Miller, the defendant mailed threatening letters to the victim over a four-month period. The Second Circuit affirmed the refusal to group the counts under § 3D1.2(b), reasoning that, although the letters were arguably part of a common scheme of harassment, the sentencing court properly found that each letter inflicted separate psychological harm.

The circumstances in Wilson and Norman are distinguishable from this case. In Wilson, each telephone call, a legally separate crime in itself, was part of a single course of conduct leading up to the end result or single objective and one composite harm: the hiring of someone to kill the defendant’s wife. Similarly, in Norman, each false report, again a crime in itself, was a single course of conduct leading up to the single criminal objective and one composite harm: the arrest of the victim. Accordingly, in Wilson and Norman, once the single purpose of each scheme and one harm — the hiring of someone to kill the defendant’s wife and the arrest of the suitor of the defendant’s wife — were accomplished, the schemes terminated. However, in the present case, there were multiple purposes and harms because the defendant did not terminate his scheme after he harassed the victim with the first telephone call. Also in Wilson and Norman, the defendants never had any contact with the victims of the scheme, but rather only third-parties. Therefore, in Wilson and Norman, unlike the present case, the defendants never created multiple, separate instances of fear in the victims of those schemes.

The situation in this case appears similar to the situation in Miller. In Miller, as in this case, each separate threatening communication, a crime in itself, had a single purpose or objective and inflicted one composite harm: to harass the victim. The scheme in Miller, as in this ease, had multiple purposes and harms because the defendant did not terminate his scheme after he harassed the victim with the first threatening communication. Therefore, although the threatening communications were arguably part of a common overall scheme of harassment, the victim in this case suffered separate and distinct instances of fear and psychological harm with each separate threatening communication. The district court properly refused to group the twenty counts under § 3D1.2(b).

B. Crime of Violence

The defendant argues that making a threatening telephone call is not a “crime of violence,” a Grade A violation, but rather a Grade B violation. He contends that, under United States v. Philibert, making threats does not constitute a “crime of violence.” He also maintains that his conduct was nonviolent because he only harassed the victim and never attempted to accomplish his threats.

When an individual on supervised release commits a Grade A or B violation, the court must revoke supervised release, and use the sentencing table in § 7B1.4 to determine the applicable range of imprisonment.

A “Grade A” violation is defined as “conduct constituting a federal, state, or local offense punishable by a term of imprisonment exceeding one year that is a crime of violence.” The term “crime of violence” as used in § 4B1.1 and defined in § 4B1.2 is the applicable definition. Under § 4B1.2(1), “the term ‘crime of violence’ means any offense under federal or state law punishable by imprisonment for a term exceeding one year that has as an element the use, attempted use, or threatened use of physical force against the person of another.” A “Grade B” violation is defined as “conduct constituting any other federal, state, or local offense punishable by a term of imprisonment exceeding one year.”

In United States v. Russell, this court relied on the § 4B1.2 definition and held that armed robbery was a crime of violence because the use or threatened use of force was an element of the crime, and a departure under § 5K2.13 (departure for diminished capacity if non-violent offense is committed) was not allowed. In Philibert, however, this court determined that Philibert’s threatening telephone call was a “non-violent crime” and a downward departure was available under U.S.S.G. § 5K2.13. In United States v. Dailey, Dailey was convicted of interstate travel with intent to carry out extortion. The sentencing court departed downward based on diminished capacity, and the government appealed, arguing that a downward departure was not available because Dailey was convicted of a crime of violence. This court vacated and remanded, holding that a departure based on diminished mental capacity was not available because Dailey was convicted of a crime of violence. The panel, recognizing the conflict between Bussell and Philibert, determined that Bussell was controlling law.

At sentencing, the defendant did not dispute the fact that he threatened to use physical violence against the victim. Because the use or threatened use of force is an element of the crime and he threatened to use violence, making a threatening telephone call is a crime of violence under § 4B1.2. Therefore, the district court did not err in finding that the defendant committed a Grade A violation of his supervised release.

CONCLUSION

For the reasons stated above, the defendant’s convictions and sentences are AFFIRMED.

      . U.S.S.G. § 3D1.1. Procedure for Determining Offense Level on Multiple Counts.

      (a) When a defendant has been convicted of more than one count, the court shall:
      (1) Group the counts resulting in conviction into distinct Groups of Closely Related Counts- ("Groups”) by applying the rules specified in § 3D 1.2.
      (2) Determine the offense level applicable to each Group by applying the rules specified in § 3D1.3.
      (3) Determine the combined offense level applicable to all Groups taken together by applying the rules specified in § 3D 1.4.

      . U.S.S.G. § 3D1.2.

      . U.S.S.G. § 3D1.2. Groups of Closely Related Counts.

      (d) When the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm, or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior.
      Specifically excluded from the operation of this subsection are:
      all offenses in Chapter Two, Part A;
      * * * * * *

      . Id.

      . U.S.S.G. § 3D1.2(d).
      4= * * * * *
      Exclusion of an offense from grouping under this subsection does not necessarily preclude grouping under another subsection.

      . U.S.S.G. § 3D1.2(b).

      . U.S.S.G. § 3D 1.2, comment, (n. 4).

      . U.S.S.G. § 3D1.2, comment, (n. 4):
      ... This provision does not authorize the grouping of offenses that cannot be considered to represent essentially one composite harm {e.g., robbery of the same victim on different occasions involves multiple, separate instances of fear and risk of harm, not one composite harm).

      . U.S.S.G. § 3D1.2, comment, (n. 3).

      . U.S.S.G. § 3D 1.2, comment, (n. 8):
      8. A defendant may be convicted of conspiring to commit several substantive offenses and also of committing one or more of the substantive offenses.
      * * * * * *

        Background: Ordinarily the first step in determining the combined offense level in a case involving multiple counts is to identify those counts that are sufficiently related to be placed in the same Group of Closely Related Counts ("Group”).
      * * * * * *
      Even if counts involve a single victim, the decision as to whether to group them together may not always be clear cut____ Existing case law may provide some guidance as to what constitutes distinct offenses, but such decisions often turn on the technical language of the statute and cannot be controlling. In interpreting this Part and resolving ambiguities, the court should look to the underlying policy of this Part as stated in the Introductory Commentary.

      . U.S.S.G. Ch. 3, Pt. D, intro, comment:
      Some offense guidelines, such as those for theft, fraud and drug offenses, contain provisions that deal with repetitive or ongoing behavior. Other guidelines, such as those for assault and robbery, are oriented more toward single episodes of criminal behavior. Accordingly, different rules are required for dealing with multiple-count convictions involving these two different general classes of offenses.

      . See United States v. Beard, 960 F.2d 965, 969 (11th Cir.1992).

      . 920 F.2d 1290 (6th Cir.1990), appeal after remand, 978 F.2d 1260 (6th Cir.1992), cert. denied, 508 U.S. 919, 113 S.Ct. 2365, 124 L.Ed.2d 272 (1993).

      . Id. at 1293.

      . Id.

      . Id. at 1294.

      . Id.

      . 951 F.2d 1182 (10th Cir.1991).

      . Id. at 1183.

      . Id.

      . Id. at 1186.

      . 993 F.2d 16 (2nd Cir.1993).

      . Id. at 19, 21.

      . Id. at 21.

      . 947 F.2d 1467 (11th Cir.1991).

      .U.S.S.G. § 7B1.3. Revocation of Probation or Supervised Release (Policy Statement).
      (a)(1) Upon a finding of a Grade A or B violation, the court shall revoke probation or supervised release.
      (b) In the case of a revocation of probation or supervised release, the applicable range of imprisonment is that set forth in § 7B1.4 (Term of Imprisonment).

      . U.S.S.G. § 7B1.1(a)(1)®.

      . U.S.S.G. § 7B1.1, comment, (n. 2):

        Application Notes:

        2. “Crime of violence” is defined in § 4B1.2 (Definitions of Terms Used in Section 4B1.1). See § 4B1.2(1) and Application Notes 1 and 2 of the Commentary to § 4B1.2.

      . U.S.S.G. § 4B1.2(1).

      . U.S.S.G. § 7B1.1(a)(2).

      . 917 F.2d 512, 517 (11th Cir.1990), cert. denied, 499 U.S. 953, 111 S.Ct. 1427, 113 L.Ed.2d 479 (1991).

      .947 F.2d at 1471.

      . 24 F.3d 1323, 1327 (11th Cir.1994).

      . Id. at 1324.

      . Id. at 1327. The defendant also refers us to United States v. Barbour, 70 F.3d 580, 587 (11th Cir. 1995), cert. denied, - U.S. -, 116 S.Ct. 1445, 134 L.Ed.2d 565 (1996), which cited Philibert. However, the issue in Barbour involved an enhancement under U.S.S.G. § 2A6.1(b)(1). The Barbour court held that, under Philibert, there must be an evidentiary basis showing that the defendant's conduct evidenced an intent to carry out the threat to justify enhancement. There was no such enhancement in this case.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Malcolm Benoni WITHROW, Defendant-Appellant.
    No. 94-9061.
    United States Court of Appeals, Eleventh Circuit.
    June 13, 1996.

      R. Gary Spencer, Federal Defender Program, Inc., Atlanta, GA, for appellant.
    Kent Alexander, U.S. Atty., William R. Toliver, Asst. U.S. Atty., Atlanta, GA, for appellee.
    Before BIRCH, Circuit Judge, and CLARK and WEIS , Senior Circuit Judges.

       Honorable Joseph F. Weis, Jr., Senior U.S. Circuit Judge for the Third Circuit, sitting by designation.

   BIRCH, Circuit Judge:

Malcolm Benoni Withrow appeals the sentence he received following a plea of guilty to the offense of armed robbery of a motor vehicle. See 18 U.S.C. § 2119. He contends that the district court erroneously declined to depart downward on the ground that With-row’s offense conduct constituted a single, aberrational act. Whether a district court has the discretion to depart downward based on a factual determination that the defendant’s criminal behavior was the product of a single, aberrant episode is an issue of first impression in this circuit.

I. BACKGROUND

On February 20, 1994, Withrow and four companions went to a Pizza Hut located across the street from a skating rink, drove around the skating rink parking lot, and selected a vehicle — a Jeep Cherokee — to rob. The four men went back to the Pizza Hut parking lot, waited until the Jeep’s owner, Milton Edwards, returned to his car, and proceeded to follow him in their car. After about one mile, Edwards exited to a gas station. Withrow and his companions parked nearby. Withrow walked to the gas station, approached Edward’s Jeep, pointed a gun at him, and demanded the keys to the car. Withrow took the keys, entered the Jeep from the passenger side, pulled a nylon stocking over his head, and instructed Edwards to drive out of the gas station. While the car was moving, Edwards attempted to grab Withrow’s gun. A struggle ensued, the gun discharged, and the Jeep was struck by another vehicle.

At sentencing, Withrow requested a downward departure based on what he contended was a single episode of aberrant behavior. In support of this request, Withrow’s mother testified that Withrow had been, up until the time he committed this carjacking, a responsible son, grandson, and father, and that he had never committed any violent act. The court refused to depart and stated that With-row’s request was not “recognized or justified in the law.” R2-28. In an attempt to clarify the basis of the court’s ruling, the following exchange between Withrow’s counsel and the sentencing judge subsequently occurred:

Counsel: For clarification, is it the court[’s] ruling that it is of the opinion that the Eleventh Circuit has taken away the authority under a single act of aberrational behavior.
Court: I believe that’s the rule under the Guidelines and I believe that’s the rule in the Eleventh Circuit. I believe those are not factors that the court should take into — that that’s a factor that the court should take into consideration in attempting to depart. Frankly, I think if the court tried to depart, it would be reversible error.

Id. at 29.

Ordinarily, we will not review a district court’s denial of a request for downward departure. United States v. Hadaway, 998 F.2d 917, 919 (11th Cir.1993). However, a district court’s refusal to depart is reviewable on appeal if the court’s decision was based on the belief that it lacked the authority to consider a departure. United States v. Williams, 948 F.2d 706, 708 (11th Cir.1991). See also United States v. Fossett, 881 F.2d 976, 979 (11th Cir.1989) (holding that a defendant’s assertion that “the district court did not believe it had the statutory authority to depart from sentencing guideline range ... presents a cognizable claim on appeal”). The district court’s determination that it lacked the authority to depart from the Sentencing Guidelines is reviewed de novo. Id. Here, the district court’s decision to refuse Withrow’s request for downward departure was based explicitly on the court’s understanding that it lacked the discretion to consider such a request. In light of the court’s unambiguous statement that it was not authorized to depart in this case, we conclude that the court’s decision is reviewable. We therefore address whether the Sentencing Guidelines permit a downward departure based on the specific factor advanced by Withrow.

II. DISCUSSION

A district court must impose a sentence within the guideline range “unless the court finds that there exists an aggravating or 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.” 18 U.S.C. § 3553(b). The Sentencing Commission has stated that “[t]he controlling decision as to whether and to what extent departure is warranted can only be made by the courts.” U.S.S.G. § 5K2.0 (1994). In reviewing this challenge to a sentence, we give due deference to the district court’s application of the guidelines to the facts and accept the findings of the district court unless they are clearly erroneous. 18 U.S.C. § 3742(e).

An introductory policy statement in the guidelines entitled “Probation and Split Sentences” contains a discussion of pre-guidelines practice concerning first-time offenders convicted of non-violent but “serious” offenses. See U.S.S.G. Ch. 1, Pt. A, 4(d). This section provides a specific framework to which the court must refer in sentencing a first-time offender who likely would have received a probationary sentence under the pre-guidelines regime. The concluding sentence of the discussion states that “[t]he Commission, of course, has not dealt with the single acts of aberrant behavior that still may justify probation at higher offense levels through departures.” Id.

All circuits that have addressed and resolved the question posed by this appeal have concluded that single acts of aberrant behavior were excluded from consideration in the formulation of the guidelines and thus might justify sentences below the guideline range even in cases where probation is not a viable option. See, e.g., United States v. Duerson, 25 F.3d 376, 380 (6th Cir.1994). In United States v. Carey, 895 F.2d 318 (7th Cir.1990), the Seventh Circuit concluded that the district court had clearly erred in finding that the defendant’s check-kiting scheme spanning fifteen months constituted a single episode of aberrant conduct. In reversing the sentencing court’s decision to depart downward on this basis, the court provided a reasoned examination of what might give rise to a such a departure:

While the Guidelines provide no guidance as to what constitutes a single act of aberrant behavior, we believe it must be more than merely something ‘out of character’ or the defendant’s first offense. [The defendant’s] otherwise exemplary life before becoming involved in this check-kiting scheme does not render his actions, on their own, a single act of aberrant behavior to support a departure. Instead, we believe that there must be some element of abnormal or exceptional behavior. [The defendant’s] actions were apparently the result of extensive planning and were spread out over a fifteen-month period. A single act of aberrant behavior, however, generally contemplates a spontaneous and seemingly thoughtless act rather than one which was the result of substantial planning because an act which occurs suddenly and is not the result of a continued reflective process is one for which the defendant may be arguably less accountable.

Id. at 325. The court further noted that “[u]nder the reasoning of the Guidelines, the court can consider first offender status in its determination of a single act of aberrant behavior only where it finds ‘unusual circumstances’ and the factor is ‘present to a degree substantially in excess to that which is ordinarily involved.’ ” Id. at n.4.

The definitional framework set forth by the Seventh Circuit in Carey has been adopted to varying degrees by the majority of circuits that have confronted this issue. See, e.g., United States v. Duerson, 25 F.3d 376, 380 (6th Cir.1994) (“Whether or not the Commission intended only a limited application of the [aberrant behavior] principle, we have no reason to doubt that a district court can give a first offender a prison sentence below the guideline range, as opposed to giving him probation, where the facts justify a finding that his crime truly was a single act of aberrant behavior.”); United States v. Premachandra, 32 F.3d 346, 349 (8th Cir.1994) (“Because the Sentencing Commission did not consider single acts of aberrant behavior when formulating the guidelines, we have recognized that a spontaneous and seemingly thoughtless act may be a basis for departure.”); United States v. Williams, 974 F.2d 25, 26 (5th Cir.1992) (“Although the Guidelines do not define ‘aberrant behavior,’ we are most certain that it requires more than an act which is merely a first offense or ‘out of character’ for the defendant ... [as] those considerations are taken into account in calculating the defendant’s criminal history category.”), cert. denied, 507 U.S. 934, 113 S.Ct. 1320, 122 L.Ed.2d 706 (1993) (citation omitted). But see United States v. Tsosie, 14 F.3d 1438, 1441 (10th Cir.1994) (expanding Carey to hold that “[t]he totality of circumstances must be viewed to see whether the offense fits within [the defendant’s] normal conduct or if it is a complete shock and out of character”).

Although the circuits uniformly have held that a single act of aberrant behavior is a mitigating circumstance. that may permit a district court to depart from the guideline range, there exists a wide spectrum of factual circumstances under which each court has found aberrant conduct warranting departure to exist. Compare United States v. Takai, 941 F.2d 738, 743 (9th Cir.1991) (defendants convicted of bribing government official to obtain green cards found to have committed single, aberrant action; court found that one defendant “actually consulted a lawyer and withdrew from the scheme so far as he would get any personal benefit,” while the other “stumbled into something awkwardly, naively, and with insufficient reflection on the seriousness of the crime”) with Premachandra, 32 F.3d at 349 (where defendant committed two armed bank robberies wearing a ski mask over course of two years, court found that “[t]he robberies ... were neither spontaneous nor thoughtless. To the contrary, the record indicates that the robberies were planned rather than impulsive”).

We find persuasive the overwhelming weight of authority holding that a district court does have the discretion to depart downward after making a careful factual determination that the defendant’s conduct constituted a single, aberrant act. In accord with our sister circuits, we further conclude that such an act is not established unless the defendant is a first-time offender and the crime was a spontaneous and thoughtless act rather than one which was the result of substantial planning. See Carey, 895 F.2d at 324-25. Although the district court in this instance made no factual findings regarding the nature of Withrow’s actions, we are convinced that the offense conduct giving rise to Withrow’s conviction for carjacking was neither spontaneous nor was it lacking in planned preparation. As previously stated, Withrow and his companions drove around a parking lot with the express purpose of looking for a car to steal. During the time it took Withrow to locate a desirable vehicle to rob, he had an opportunity either to reflect upon the action he was about to take and withdraw or to devise a plan to commit the car theft. Choosing the latter option, With-row pointed a gun to the driver’s head, entered the ear, and pulled a stocking over his head to conceal his identity. We are mindful of the testimony offered by Withrow’s mother at sentencing, in which she expressed the view that Withrow’s criminal conduct was inconsistent when viewed in the context of his life as a whole. This factor alone, however, does not suffice to render a defendant’s conduct “aberrant”; rather, Withrow’s actions appear to have been the result of some planning and preparation, and do not comport with the definition of a single, aberrant act that we have adopted. We therefore hold that although the district court erred in determining that it did not have the authority to depart downward in this case, the record does not support a finding that Withrow’s conduct constituted a single, aberrant act.

III. CONCLUSION

Withrow contends that the district court should have departed downward at sentencing based on the fact that his offense conduct constituted a single, aberrant act. We conclude that the district court had the discretion to depart downward in this case because the mitigating factor urged by Withrow was not adequately considered by the Sentencing Commission in formulating the Sentencing Guidelines. We further resolve, however, that the record does not support a finding that Withrow’s criminal conduct was impulsive, spontaneous, or unplanned and thus does not fall squarely within the definitional purview of a single, aberrant act. Accordingly, we AFFIRM.

      . Although we acknowledge that the district court did not have an opportunity to make a factual determination in this case regarding whether Withrow’s conduct was "aberrant” under any acceptation of that term, the record has been developed adequately for us to conclude that such a finding would not be appropriate here. See United States v. Jones, 52 F.3d 924, 927 (11th Cir.) (holding that ”[n]o remand is necessary ... [where] no additional facts need be developed, and any district court decision of the issue would be reviewed de novo.’’), cert. denied, — U.S. -, 116 S.Ct. 265, 133 L.Ed.2d 187 (1995).


author: PER CURIAM:

text:
    William Stephen HALL, Plaintiff-Appellant, v. U.S. DEPARTMENT VETERANS’ AFFAIRS, Defendant-Appellee.
    No. 95-2175.
    United States Court of Appeals, Eleventh Circuit.
    June 13, 1996.
    Kenneth S. Siegel, Tampa, FL, for Appellant.
    Warren A. Zimmerman, Asst. U.S. Atty., Tampa, FL, for Appellee.
    Before HATCHETT, Circuit Judge, HENDERSON, Senior Circuit Judge, and MILLS , District Judge.

       Honorable Richard Mills, U.S. District Judge for the Central District of Illinois, sitting by designation.

   PER CURIAM:

This is an appeal from the judgment of the United States District Court for the Middle District of Florida dismissing William Stephen Hall’s complaint against the Department of Veterans Affairs (“Department”) for lack of subject matter jurisdiction. We affirm.

I. BACKGROUND

Hall is a recipient of veterans’ disability benefits and a Florida state prisoner. On October 3, 1994, he filed this action pro se. He alleged that on May 10, 1994, he was notified by the Department that, effective October 21, 1991, his benefits were reduced to $80.00 per month in compliance with 38 C.F.R. § 3.665, which requires that disability compensation be diminished during periods of incarceration for felony convictions in excess of sixty days. Hall alleged further that, due to overpayments made to him during his imprisonment, the Department sought the return of $15,896.66 previously paid as benefits. He claimed that the reduction in benefits constituted a tort in violation of numerous provisions of the constitution. In his prayer for relief he requested that the court “inform [the Department] that 38 CFR 3.665 is contra to the U.S. Constitution and thus must be repealed and all money owe [sic] plaintiff for his injury’s [sic] must be repaid in full. Thus issue a cease and desist order.” (R1-1, Complaint at 4) (capitalization altered).

Prior to service of process on the defendant, the district court sua sponte dismissed the complaint for lack of subject matter jurisdiction under authority of 38 U.S.C. § 511(a), which vests decisions affecting veterans’ benefits in the Secretary of Veterans Affairs (“Secretary”). Hall then filed this appeal pro se. This court subsequently appointed counsel to represent him and the Department entered an appearance. The case has now been fully briefed and argued.

II. STANDARD OF REVIEW

The propriety of the district court’s dismissal of the complaint for lack of subject matter jurisdiction is a question of law which we review de novo. Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356 (11th Cir.1996). Because the case was dismissed on the basis of the complaint, we must look to the face of that pleading to determine whether subject matter jurisdiction existed, considering the allegations contained therein as true. Sea Vessel, Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir.1994).

III. DISCUSSION

Hall urges that subject matter jurisdiction was present because the complaint raised a constitutional attack on the validity of 38 U.S.C. § 5313 as well as the implementing regulation, 38 C.F.R. § 3.665. See supra note 1. He contends that the statutory challenge was cognizable in the district court, citing, inter alia, Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). The Department agrees that if Hall sought to overturn the statute, the district court would have jurisdiction. The Department maintains, however, that he attacked only the regulation, not the statute, and that, under 38 U.S.C. § 502, such challenges must be brought in the United States Court of Appeals for the Federal Circuit, or in accordance with the Veterans’ Judicial Review Act, Pub.L. No. 100-687, 102 Stat. 4105 (1988) (“VJRA”).

In Johnson, the Court construed the jurisdictional implications of 38 U.S.C. § 211(a), the precursor to § 511(a). The Court held that while § 211(a) insulated from judicial review decisions of the Administrator of Veterans Affairs (now, the Secretary) in the interpretation or application of a statute governing veterans’ benefits, it did not preclude the district courts irom entertaining facial constitutional challenges to acts of Congress affecting benefits. Johnson, 415 U.S. at 366-74, 94 S.Ct. at 1165-69, 39 L.Ed.2d at 397-401.

On November 18, 1988, Congress enacted the VJRA. It stipulates that determinations of the Secretary may be appealed to the Board of Veterans’ Appeals (“Board”), whose ruling becomes the final decision of the Secretary. 38 U.S.C. § 7104(a). Decisions of the Board may then be reviewed exclusively by the United States Court of Veterans Appeals, an Article I court established by the VJRA. 38 U.S.C. §§ 7251, 7252(a), 7266(a). Decisions of the Court of Veterans Appeals are in turn appealable solely to the United States Court of Appeals for the Federal Circuit, 38 U.S.C. § 7292(a), which has “exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof ... and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). See also Zuspann v. Brown, 60 F.3d 1156, 1158-59 (5th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 909, 133 L.Ed.2d 841 (1996). The judgment of the Federal Circuit Court of Appeals is then subject to review by the United States Supreme Court by writ of certiorari. 38 U.S.C. § 7292(c).

Thus, under the statutory scheme, judicial review of a particular application of the law made by the Secretary with respect to a veteran’s entitlement to benefits may be had only by appealing to the Board, then to the Court of Veterans Appeals, the Federal Circuit Court of Appeals and the Supreme Court. Facial constitutional attacks on regulations promulgated by the Secretary may be pursued in one of two ways — either in accordance with the procedure set forth in the VJRA, or directly in the Federal Circuit Court of Appeals as permitted by 38 U.S.C. § 502. See Barton F. Stichman, The Veterans’ Judicial Review Act of 1988: Congress Introduces Courts and Attorneys to Veterans’ Benefits Proceedings, 41 Admin.L.Rev. 365, 392-93 (1989).

In the wake of the VJRA, the vitality of the Johnson holding with respect to the jurisdiction of the district courts to entertain facial constitutional attacks on veterans’ benefits legislation (as opposed to the implementing rules and regulations) is debatable. The United States Court of Appeals for the Second Circuit has squarely held that the jurisdiction of the district courts continues to extend to such constitutional questions. See Disabled Am. Veterans v. United States Dep’t of Veterans Affairs, 962 F.2d 136, 140-41 (2d Cir.1992); Larrabee v. Derwinski, 968 F.2d 1497, 1501 (2d Cir.1992). In Zuspann, the Fifth Circuit Court of Appeals also indicated, albeit in dicta, that, despite the VJRA, facial constitutional challenges may be maintained in the district courts. Zuspann, 60 F.3d at 1158-59. The Eighth Circuit Court of Appeals appears to have taken a different view in Hicks v. Veterans Admin., 961 F.2d 1367 (8th Cir.1992). Although Hicks did not involve a facial constitutional attack on a statute affecting veterans’ benefits, it did concern a constitutional claim that the plaintiffs veterans’ benefits were reduced in retaliation for having exercised his First Amendment rights. Id. at 1368. The appellate court held that the district court lacked jurisdiction over this constitutional issue, finding that all questions of law and fact necessary to a decision by the Secretary under a law affecting veterans’ benefits, including constitutional questions, fall within the purview of the VJRA and its exclusive judicial review provisions. Id. at 1369-70.

Because the face of the complaint in the present case did not specify that a statute was under constitutional attack, we need not decide whether Johnson remains good law after the VJRA. We are mindful that pro se complaints are held “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652, 654 (1972). Nevertheless, there is no question that Hall sought to overturn 38 C.F.R. § 3.665, a regulation promulgated by the Secretary. The district court lacked jurisdiction over this question of law. Aside from the avenue of review made possible by the VJRA. judicial scrutiny of the regulation is available exclusively in the Federal Circuit Court of Appeals in accordance with 38 U.S.C. § 502. Moreover, Hall clearly sought to reverse the Secretary’s application of the law as it affected him. This, he could do, only by following the procedure required by the VJRA.

IV. CONCLUSION

Accordingly, for the foregoing reasons, we AFFIRM the judgment of the district court dismissing the complaint for lack of jurisdiction.

      . Section 3.665 was promulgated to implement the provisions of 38 U.S.C. § 5313. See 38 U.S.C. § 501 (authorizing the Secretary of Veterans Affairs to prescribe rules and regulations necessary to carry out the laws administered by the Department). The statute states, in relevant part:
      (a)(1) To the extent provided in subsection (d) of this section, any person who is entitled to compensation ... and who is incarcerated in a Federal, State, or local penal institution for a period in excess of sixty days for conviction of a felony shall not be paid such compensation ... for the period beginning on the sixty-first day of such incarceration and ending on the day such incarceration ends, in an amount that exceeds—
      (A) in the case of a veteran with a service-connected disability rated at 20 percent or more, the rate of compensation payable under section 1114(a) of this title; or
      (B) in the case of a veteran with a service-connected disability not rated at 20 percent or more ... one-half of the rate of compensation payable under section 1114(a) of this title.
      38 U.S.C. § 5313(a)(1). The regulation provides in part:
      (a) General. Any person specified in paragraph (c) of this section who is incarcerated in a Federal, State or local penal institution in excess of 60 days for conviction of a felony shall not be paid compensation ... in excess of the amount specified in paragraph (d) of this section beginning on the 61st day of incarceration.
      38 C.F.R. § 3.665(a).

      . Section 511 (a) specifies:
      (a) The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. Subject to subsection (b), the decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.

      . Section 502 directs that judicial review of rules and regulations promulgated by the Secretary "shall be in accordance with chapter 7 of title 5 and may be sought only in the United States Court of Appeals for the Federal Circuit.” It does not address court scrutiny of veterans’ benefits legislation.

      . Like§ 511(a), § 211(a) provided that
      "the decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans ... shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise.”

        Johnson, 415 U.S. at 365 n. 5, 94 S.Ct. at 1164 n. 5, 39 L.Ed.2d at 396 n. 5 (quoting § 211(a)).

      . Only a claimant may seek review of a decision of the Board. 38 U.S.C. § 7252(a).

      . Both the claimant and the Secretary may appeal to the Federal Circuit Court of Appeals. 38 U.S.C. § 7292(a).