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August 3, 2004
UNITED STATES OF AMERICA, APPELLANTv.CHRISTOPHER E. RILEY, APPELLEE
Appeal from the United States District Court for the District of Columbia. (No. 02cr00314-01).
Before: Rogers, Tatel, and Garland, Circuit Judges.
Argued March 30, 2004
Opinion for the Court filed by Circuit Judge GARLAND.
Opinion concurring in part and dissenting in part filed by Circuit Judge ROGERS.
The United States appeals from a judgment of the United States District Court, granting defendant Christopher Riley a downward departure from the sentence required by the United States Sentencing Guidelines. Reviewing the judgment de novo, we hold that the departure was improper and remand the case for resentencing.
On April 24, 2003, Riley pled guilty to a federal grand jury's superceding indictment charging him with one count of possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Riley did not enter into a plea agreement with the government or otherwise stipulate in writing to the facts of his crime. The relevant events are, however, partially chronicled in a government proffer offered at the plea hearing, with which the defendant said he agreed. 04/24/03 Tr. 11-13. They are also chronicled in a Presentence Investigation Report (PSR) prepared by the United States Probation Office, which the defendant agreed contained no material inaccuracies. The following recitation begins with information from these sources.
At approximately 6:45 on the morning of May 7, 2002, a Special Agent of the Federal Bureau of Investigation (FBI) was on his way to an FBI field office in downtown Washington, D.C., when he noticed a brown Chevrolet Suburban automobile parked directly across the street from the field office. The car, which bore Maryland license plates, had two large antennae, a Fraternal Order of Police sticker on the back window, a red light, and a Metropolitan Police Department (MPD) placard on the dashboard. Riley was inside the car. The FBI agent stopped, called the FBI Communications Center to check the car's license plates and, while waiting for a response, observed Riley get out of the car and walk toward a building. After being advised that the car had been reported stolen, the agent approached the building as Riley came out. The agent asked Riley if he was the car's owner, and Riley said that he was.
The FBI agent then asked Riley if he had any weapons; Riley said that he did. A search of his person revealed a fully-loaded, semi-automatic handgun in a holster on his hip. Riley then told the agent that he was an MPD chaplain and produced a Police Department identification card and badge. He admitted that he was not a sworn police officer and that he did not have a permit to carry a gun in the District. He did claim, however, to have a permit to carry the gun in Maryland. (Riley's counsel repeated that claim at the plea hearing.) As for the car, Riley explained that he had just purchased it from a friend, and immediately called the friend to confirm for the agent that a sale had transpired. Meanwhile, MPD officers arrived on the scene and arrested Riley.
The PSR reviewed Riley's criminal history and offense level under the Sentencing Guidelines. It noted that Riley had been convicted in 1989 in Virginia federal court for transporting a firearm across state lines while under felony indictment, in violation of 18 U.S.C. § 922(n). That conviction was the predicate offense for the § 922(g)(1) charge. The PSR also noted that Riley had several other prior convictions.*fn1 Because all of Riley's convictions were more than 10 years old and none involved more than 13 months' imprisonment, the PSR assigned him zero criminal history points, yielding the lowest criminal history category of I. PSR ¶¶ 27-32; see U.S. SENTENCING GUIDELINES MANUAL § 4A1.2(e) (2002) [hereinafter U.S.S.G.]. The PSR also calculated a base offense level of 14 under U.S.S.G. § 2K2.1(a)(6)(A) -- the guideline applicable to violations of § 922 -- and reduced it by two levels for acceptance of responsibility. PSR ¶¶ 16-25.
Riley's criminal history category and offense level generated a guidelines sentencing range of 10 to 16 months' imprisonment. See PSR ¶ 72 (citing U.S.S.G. ch. 5, pt. A (1992)). As the PSR reported, that range rendered Riley ineligible for probation. Id. ¶ 10; see U.S.S.G. § 5B1.1, cmt. n.2; id. § 5C1.1(f). The Probation Office reported that it had received no information that would justify a departure from the guidelines range. PSR ¶ 84.
In a written motion to the district court, filed two days before the sentencing hearing, Riley asserted that there was more to the story than was reflected in the plea hearing and PSR. See Def.'s Mot. for Downward Departure [hereinafter Motion]. He contended that, on the evening of May 6, 2002, he had delivered an invocation at an annual memorial service for law enforcement officers. He then participated in a ''ridealong'' with an MPD officer, and eventually accompanied that officer to a 24-hour shooting range in Maryland. In the morning, he drove directly to work from the shooting range. According to Riley, he was a switching engineer employed as a ''Verizon Federal Contractor'' and assigned to work at an office of the Bureau of Alcohol, Tobacco and Firearms (ATF) near where he was intercepted by the agent. Had it not been for his arrest, he said, he ''would have secured the weapon at the ATF office upon his arrival.'' Id.
Based on this account of his offense conduct, Riley asked the court to depart downward four offense levels so that he could be sentenced to three years' probation. He made this motion pursuant to two provisions of the guidelines manual: U.S.S.G. § 5K2.11, which authorizes a departure if the defendant's conduct did not threaten the harm sought to be prevented by his statutory offense; and U.S.S.G. § 5K2.0, which authorizes a departure if circumstances distinguish a defendant's conduct from the ''heartland'' of offenses covered by the applicable offense guideline. The government responded orally at the hearing. The prosecutor did not address the truth of Riley's factual claims, but contended that they did not justify departure.
At the sentencing hearing on August 29, 2003, the district court granted Riley's motion for a four-level departure and sentenced him to three years' probation. Noting that Riley was ''gainfully employed,'' the court said:
He hasn't done anything wrong since 1989. He supports his children or tries to support his children. He seems to me to be an ideal candidate for probation, and I see no point at all in sending him to prison at this point. I am going to grant the Motion for Departure, and you can put me on Mr. Ashcroft's list.
08/29/03 Tr. 6. Although the court also said that the sentencing issue was ''the reason for which he possessed the weapon,'' id. at 5, it made no mention of the circumstances of Riley's arrest or of his representations regarding the shooting range. The court later noted on its judgment order that it departed downward ''Upon motion of defendant -- §§ 5K.2 and 5K.11 [sic],'' and checked a box indicating that it adopted the factual findings in the PSR. The government contends that the record does not support a downward departure under either U.S.S.G. § 5K2.0 or § 5K2.11.
Our standard of review of decisions to depart from an otherwise applicable guidelines range has recently changed. Previously, pursuant to 18 U.S.C. § 3742(e), we reviewed a district court's factual findings for clear error and its decision to depart from the guidelines for abuse of discretion. See Koon v. United States, 518 U.S. 81, 97-99 (1996). In 2003, however, Congress amended § 3742(e) in § 401(d) of the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act (PROTECT Act), Pub. L. No. 108-21, 117 Stat. 650 (Apr. 30, 2003). Although courts of appeals must still ''accept the findings of fact of the district court unless they are clearly erroneous,'' we must now review a district court's decision to depart from the guideline range ''de novo.'' 18 U.S.C. § 3742(e); see United States v. Mallon, 345 F.3d 943, 946 (7th Cir. 2003).*fn2 Those circuits that have decided the issue have held that the judicial review provision of the PROTECT Act applies with immediate effect, and without constitutional disability, to appellate proceedings after April 30, 2003, the date the PROTECT Act was signed into law.*fn3 Today, we join them.
Although the PROTECT Act became law five months before Riley filed this appeal and four months before he was sentenced, the conduct for which he was convicted had taken place a year earlier. Riley argues that applying the Act's de novo standard to review sentences for crimes committed before April 30, 2003 would violate the presumption against the retroactive application of statutes. See, e.g., Landgraf v. USI Film Prods., 511 U.S. 244, 268 (1994). But a ''statute does not operate 'retrospectively' merely because it is applied in a case arising from conduct antedating the statute's enactment.'' Id. at 269. Rather, to determine retroactive effect, ''the court must ask whether the new provision attaches new legal consequences to events completed before enactment.'' Id. at 269-70. The de novo review provision at issue here does not change the consequences of Riley's unlawful acts. As the Seventh Circuit has explained, the provision:
TTT does not change the statutory penalties for crime, affect the calculation of the Guidelines range, or alter the circumstances under which departures are permitted. It changes who within the federal judiciary makes a particular decision, but not the legal standards for that decision. Instead of one district judge, three appellate judges now decide whether a departure is justified.
Mallon, 345 F.3d at 946. In this respect, the provision is like ''a new jurisdictional rule,'' which ''takes away no substantive right but simply changes the tribunal that is to hear the case.'' Landgraf, 511 U.S. at 274. In such circumstances, ''[p]resent law normally governs.'' Id.
Riley also contends that applying the PROTECT Act would violate the Constitution's Ex Post Facto Clause, U.S. CONST. Art. I, § 9, cl. 3, ''because the Act is punitive in nature.'' Appellee's Br. at 17; see Smith v. Doe, 538 U.S. 84, 92 (2003) (''If the intention of the legislature was to impose punishment, that ends the [Ex Post Facto] inquiry.''). But there is nothing -- and Riley does not contend that there is anything -- punitive about the Act's new standard of appellate review. Instead, he contends that the Act is punitive when ''considered as a whole,'' Appellee's Br. at 17, referring to the Act's ''substantive'' as well as procedural provisions, id. at 18. Riley is presumably alluding to sections of the Act that impose new or increased criminal penalties for specified conduct. See, e.g., 18 U.S.C. § 2251(e) (increased penalty for sexual exploitation of children); id. § 3553(b)(2) (new sentencing rules for defendants convicted of ''[c]hild crimes and sexual offenses''). Riley, however, has no standing to complain about provisions that do not apply to him, and those sections therefore do not affect our analysis here.*fn4
Finally, Riley draws our attention to two other new provisions of the PROTECT Act that he contends make it unfair to apply any part of the Act to him. First, a district court's reasons for departing from a guidelines range must now ''be stated with specificity in the written order of judgment and commitment,'' 18 U.S.C. § 3553(c)(2), putting a greater premium on factfinding than perhaps the district judge realized. Although the prior statute had also required the court to state ''the specific reason'' for a departure, the reason had to be stated only ''in open court.'' See id. § 3553(c) (2000) (amended at 18 U.S.C. § 3553(c) (2004)). This difference has no consequence here, however, because even treating the court's oral statements as if they had been written, and even accepting the defendant's version of the facts, we conclude in Parts III-V that the departure was unwarranted.
Second, Riley notes the PROTECT Act provides that, if an appellate court remands for resentencing, the district court may not impose a sentence outside the applicable guidelines range:
except upon a ground that -- (A) was specifically and affirmatively included in the written statement of reasons required by section 3553(c) in connection with the previous sentencing of the defendant TTT; and (B) 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). Riley worries that this provision could unfairly deprive him of the right to raise additional grounds that he has since identified to support his reduced sentence. Again, this provision has no consequence here. As discussed in Part V, we have considered the additional grounds that Riley proposes, including those arguably raised for the first time on appeal, and conclude that none justifies the sentence pronounced by the district court.
The first ground for departure upon which the district court relied, U.S.S.G. § 5K2.11, is entitled ''Lesser Harms'' and permits a downward departure if the defendant's conduct did ''not cause or threaten the harm or evil sought to be prevented by the law proscribing the offense at issue.''*fn5 Riley asserts that the harm sought to be prevented by § 922(g)(1) is the possession of a firearm for an unlawful purpose, and that because he had no unlawful purpose, he is eligible for departure under § 5K2.11.
Section 922(g), however, sweeps more broadly than Riley admits, drawing the criminal line at possession, not purpose. The statute declares it flatly ''unlawful for any [prohibited] person TTT to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition,'' 18 U.S.C. § 922(g), and includes felons on the list of prohibited persons, see id. § 922(g)(1). To commit the crime, the felon need only possess the gun ''knowingly.'' Id. § 924(a)(2). As the Supreme Court has repeatedly noted, the federal laws that bar felons from possessing firearms have ''a broad prophylactic purpose.'' Dickerson v. New Banner Inst., 460 U.S. 103, 118 (1983) (describing the purpose of Title IV of the Gun Control Act of 1968, a predecessor of 18 U.S.C. § 922(g)).*fn6 And while there certainly are statutory provisions that are concerned with the defendant's purpose in possessing the firearm, see, e.g., 18 U.S.C. § 924(c) (prohibiting using or carrying a firearm during and in relation to a crime of violence or drug trafficking offense, or possessing a firearm in furtherance of any such crime), § 922(g)(1) is not one of them.*fn7 Accordingly, the mere absence of an unlawful purpose does not warrant a departure under § 5K2.11.
Riley notes that § 5K2.11 provides two examples of situations in which a departure might be warranted because the defendant's conduct does not threaten the evil sought to be proscribed by the statute, and he contends that those examples counsel a departure in his case. The examples are ''where a war veteran possessed a machine gun or grenade as a trophy, or a school teacher possessed controlled substances for display in a drug education program.'' U.S.S.G. § 5K2.11. Tellingly, however, neither example involves a statutory bar on possession by a prohibited person; rather, each involves a ban on a particular object because of concern over how that object might be used. The same is true of the two cases that Riley cites involving departures where the defendant violated 26 U.S.C. § 5861, which prohibits the possession of certain unregistered, sawed-off firearms.*fn8
Nor can Riley find support in the only appellate cases that have even entertained the possibility of a § 5K2.11 departure for a violation of § 922(g)(1). In those cases, the courts suggested that criminalizing the innocent and transitory possession of a weapon might be outside the purpose of § 922(g).*fn9 Similarly, this circuit has held that innocent possession could be a defense in a § 922(g) case in which a delivery truck driver testified that he had found the gun in a paper bag near a school, and that he took possession only to keep it out of the children's reach, intending to deliver it to a police officer he knew would be at his next stop. United States v. Mason, 233 F.3d 619, 621 (D.C. Cir. 2001). To qualify for such a defense, we held that the record must show that the defendant's possession was ''transitory'' and that he ''took adequate measures to rid himself of possession of the firearm as promptly as reasonably possible.'' Id. at 624.
Riley's version of his conduct does not establish transitory possession, or any similar circumstance. He was not, for example, apprehended at a shooting range. He did say that he used the gun at a range, but he did not say that it first came into his possession at the range, or that he did not intend to reclaim it from its ''secured'' location when it was time to leave work. To the contrary, he had obtained a Maryland permit for the weapon. Accordingly, even assuming the facts agreed to by Riley, this case involves a felon who possessed a firearm for an extended period of time, who carried that weapon fully loaded on his person near a federal building in downtown Washington, D.C., and who evidenced no intention to permanently relinquish it. The purpose of § 922(g) was to criminalize just such behavior.*fn10
The second basis for the district court's departure was U.S.S.G. § 5K2.0, which states that ''the sentencing court may impose a sentence outside the range established by the applicable guidelines, if 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.' '' U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). As the guidelines manual explains:
The Commission intends the sentencing courts to treat each guideline as carving out a 'heartland,' a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.
U.S.S.G. ch. 1, pt. A, intro. cmt. 4(b); see also id. § 5K2.0, cmt. In his motion for a downward departure, Riley argued that his innocent, sporting purpose for possessing the gun distinguished his case from the § 922(g)(1) heartland and entitled him to a § 5K2.0 departure. Riley is wrong for three reasons.
First, Riley's argument about ''the heartland'' of § 922(g)(1) largely repeats his argument about ''lesser harms.'' See United States v. Rojas, 47 F.3d 1078, 1082 n.5 (11th Cir. 1995) (noting that implicit in the court's rejection of a departure under § 5K2.11 ''is a finding that [the defendant's] case does not warrant a downward departure because it involves circumstances that distinguish it 'from the ''heartland'' cases covered by the guidelines' '') (quoting U.S.S.G. § 5K2.0). But as we have explained, the statute intended to proscribe, and the guidelines to punish, precisely this case. Cases in which the defendant had an unlawful purpose -- such as to use the weapon in a violent or drug trafficking crime -- are in the heartland of other offenses, not of § 922(g). See, e.g., 18 U.S.C. § 924(c); see also United States v. Doe, 960 F.2d 221, 224-25 (1st Cir. 1992) (noting that ''simple possession, even by a felon, takes place in a variety of ways TTT many, perhaps most, of which do not involve likely accompanying violence'').
Second, the Supreme Court has instructed that courts should not depart based on a factor that the applicable offense guideline has already taken into account, unless that factor ''is present to an exceptional degree'' -- that is, unless it ''is present to a degree substantially in excess of that which ordinarily is involved in the offense.'' Koon, 518 U.S. at 95- 96 (quoting U.S.S.G. § 5K2.0).*fn11 In this case, the relevant offense guideline, § 2K2.1, does take purpose into account. Riley was assigned a base offense level of 14 under that guideline because he was a ''prohibited person'' (a felon) when he committed the offense. See PSR ¶ 16 (citing U.S.S.G. § 2K2.1(a)(6)(A)). The same guideline, however, would have increased Riley's base offense level if he had used or possessed the firearm ''in connection with another felony offense.'' U.S.S.G. § 2K2.1(b)(5). On the other hand, the guideline would have decreased the base offense level if the firearm had been possessed for narrowly-defined reasons: ''solely for lawful sporting or collection purposes.'' Id. § 2K2.1(b)(2). As we discuss in Part V.B below, Riley does not qualify for a decrease on that ground. But the fact that the guideline takes into account the circumstances in which a defendant's purpose should matter -- as either an aggravating or a mitigating factor -- counsels strongly against permitting purpose to serve also as a ground for departure unless it is truly ''exceptional.'' Riley's purpose plainly was not.
Third, were we to accept that possession without an unlawful purpose is outside the § 922(g) heartland, there would be nothing left of that heartland. Guideline provision § 5K2.6 encourages upward departure ''[i]f a weapon TTT was used or possessed in the commission'' of an offense, and § 5K2.9 similarly encourages upward departure ''[i]f the defendant committed the offense in order to facilitate TTT the commission of another offense.'' These provisions suggest that it is an unlawful purpose -- not a neutral or ''innocent'' one -- that is outside the heartland of cases.
Finally, we address two further grounds that Riley advances to justify the sentence he received.
Riley argues that he is entitled to a § 5K2.0 departure by virtue of a ''combination of factors'' in addition to those we have discussed above. Appellee's Br. at 35. Riley says that these include the following: his predicate felony conviction was thirteen years old; the predicate felony was not a violent crime or drug trafficking offense; he had turned his life around to become an ordained minister and community leader; and he had been employed with the same company for eight years. Riley did not advance this theory below: his sentencing memorandum specified only the two grounds that we have discussed in Parts III and IV. See Motion. Whether the district court incorporated this theory into its reasoning, however, is less clear. Although the court's written comment specified only §§ 5K2.11 and 5K2.0, the court's statements at the sentencing hearing emphasized facts that might encompass this ground, including the fact that Riley was ''gainfully employed'' and that ''[h]e supports his children or tries to support his children.'' 08/29/03 Tr. 6.*fn12
These grounds are, in any event, insufficient to warrant a departure in Riley's case. The fact that Riley's predicate conviction was old and for a non-violent crime, and the fact that he had no recent convictions, are not exceptional circumstances. The age of Riley's prior crimes was already taken into consideration by the criminal history guidelines, which accorded him the lowest criminal history category of I -- as if he had no criminal record at all. In In re Sealed Case, 292 F.3d 913, 916-17 (D.C. Cir. 2002), this circuit held that a downward departure may not be based on a defendant's criminal history where the defendant is already in category I. See also U.S.S.G. § 4A1.3 (''The lower limit of the range for Criminal History Category I is set for a first offender with the lowest risk of recidivism. Therefore, a departure below the lower limit of the guideline range for Criminal History Category I on the basis of the adequacy of criminal history cannot be appropriate.''). Moreover, the offense guideline under which Riley was sentenced likewise took account of the fact that his predicate offense was non-violent: as a consequence, his offense level was 14, see U.S.S.G. § 2K2.1(a)(6), rather than at least 6 levels higher, see id. § 2K2.1(a)(1)-(4).
The other cited characteristics -- Riley's employment record, civic service, and family responsibilities -- are also insufficient. The sentencing guidelines categorize these as ''discouraged factors,'' which are '' 'not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline range' '' and may not form the basis of a departure unless they are present to ''an exceptional degree.'' Koon, 518 U.S. at 95-96 (quoting U.S.S.G. ch. 5, pt. H, intro. cmt.).*fn13 It is ''the defendant [who] bears the burden of proving by a preponderance of the evidence that he is eligible for a downward departure,'' United States. v. Goodwin, 317 F.3d 293, 297 (D.C. Cir. 2003), and Riley has given us no reason to think that his circumstances in these respects are exceptional in any way. Finally, Riley's claim that even if these factors do not individually warrant a departure, they do so in combination, faces an even higher -- and here insurmountable -- barrier: A departure based on such an alleged combination is permissible only in ''an extraordinary'' and ''extremely rare'' case. U.S.S.G. § 5K2.0, cmt.; see Dyce, 91 F.3d at 1468. Riley's is not such a case.
Riley also maintains that U.S.S.G. § 2K2.1(b)(2) provides an alternative ground for affirming the sentence he received, based not on a departure but rather on a downward adjustment of his base offense level. That subsection of the guideline applicable to § 922(g) convictions instructs courts to reduce the base offense level if the defendant ''possessed all ammunition and firearms solely for lawful sporting purposes or collection.'' U.S.S.G. § 2K2.1(b)(2) (emphasis added). Riley claims that proper application of that provision would have yielded a base offense level of 6 and a guideline range of 0-6 months, which would have rendered him eligible for the probation to which he was sentenced. See id. § 5B1.1.
This claim is new on appeal and fails on the merits. Riley did not contend below that he had possessed the weapon solely for sporting purposes; his sentencing memorandum said only that he had gone to a shooting range the night before his arrest and that he had proceeded from there to his job in Washington. Moreover, the commentary to § 2K2.1 instructs courts to ''determin[e] by the surrounding circumstances'' whether a weapon was possessed solely for lawful sporting purposes or collection. Those circumstances include the ''location and circumstances of possession,'' and the ''na ture of the defendant's criminal history (e.g., prior convictions for offenses involving firearms).'' Id. § 2K2.1 n.10.
In Riley's case, the surrounding circumstances cut against his claim. He did not possess the weapon at a sporting location, but rather across a state line hours after its purported sporting use. See United States v. Morrison, 983 F.2d 730, 732 (6th Cir. 1993) (denying departure in part because the timing of sunset indicated that the defendant ''was not hunting immediately prior to his arrest''). The weapon was fully loaded. See United States v. Dudley, 62 F.3d 1275, 1277 (10th Cir. 1995) (concluding that the ''fact that the guns were loaded cuts against the contention that they were solely for sporting or collection purposes, rather than for personal protection''). And Riley's criminal history included prior convictions for firearms offenses. See supra Part I & n.1. In short, Riley simply cannot squeeze his circumstances into the narrow confines of § 2K2.1(b)(2).
Based on the above considerations, we conclude that the downward sentencing departure granted Riley by the district court was unwarranted. Our dissenting colleague does not disagree, but ''would remand the case to the district court for detailed factual findings and an explication of reasons for departing from the Sentencing Guidelines.'' Dissent at 8. We decline to do so. Having given Riley every benefit of the doubt and having assumed the truth of every factual assertion he has offered here or in the district court, we have concluded that there are no facts the district court could find and no reasons it could explicate that -- consistent with Riley's version of events -- would justify a downward departure. The problem in this case is not just insufficient factfinding by the district judge, but the failure of the facts -- as asserted by Riley himself -- to warrant a departure. Were we to remand here, we would have to remand in every case in which the proffered facts fail to justify a departure under any of a defendant's theories, a result the Congress that passed the PROTECT Act could hardly have contemplated.
We, of course, agree that it is our responsibility to ''accept the findings of fact of the district court unless they are clearly erroneous.'' 18 U.S.C. § 3742(e). But in resolving this case on the assumption that the facts are as the defendant alleges, we do not ''make [our] own findings of fact'' or ''speculate'' or ''surmise'' in any way that disadvantages the defendant, Dissent at 5 -- just as we do not find facts when we assume the truth of a plaintiff's allegations in ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). In a case in which the defendant has neither offered nor alleged evidence from which a factfinding in his favor could reasonably be derived, there is no reason to remand for a factfinding that if made could not be legally sustained. Cf. Al-Fayed v. CIA, 254 F.3d 300, 309 n.10 (D.C. Cir. 2001) (observing that a court ''need not remand to permit the district court to exercise its discretion to depart if its decision to do so on remand would constitute an abuse of discretion'' (quoting United States v. Fenner, 147 F.3d 360, 363 (4th Cir. 1998))).
We also part company with our dissenting colleague in her repeated reliance on passages from Koon v. United States that have been legislatively superceded by the PROTECT Act. That statute was plainly intended to require courts of appeals to review ''de novo the district court's application of the guidelines to the facts'' in the context of sentencing departures, 18 U.S.C. § 3742(e); see id. § 3742(e)(3)(B), rather than to give the district court ''due deference'' as required by Koon, see 518 U.S. at 96-99 (rejecting de novo standard of review in favor of due deference/abuse-of-discretion).
Finally, the cases cited by the dissent do not support the proposition that our sister circuits, ''faced with the task of conducting de novo review of sentencing departures after enactment of the PROTECT Act, [have] concluded that the proper remedy for insufficient fact-finding by the district court is a remand for additional fact-finding.'' Dissent at 8. Two of the cited cases are simply inapposite.*fn14 And the third, while instructive, teaches a different lesson. In United States v. Huerta, the government and defendant presented conflicting versions of the facts, and the court of appeals remanded because the district court had failed to determine which version was correct. 371 F.3d 88, 95-96 (2d Cir. 2004). If that were true in this case, a remand might well be warranted. Here, however, we do not have conflicting versions of the facts; we have only Riley's. And even accepting Riley's version, the facts are insufficient to justify a departure from the applicable guidelines range. Under such circumstances, a remand would be futile.
For the foregoing reasons, we ''set aside the sentence and remand for further sentencing proceedings'' consistent with this opinion. 18 U.S.C. § 3742(f)(2)(B).
ROGERS, Circuit Judge, concurring in part and dissenting in part: Because imposing a criminal sentence implicates ''the most elemental of liberty interests -- the interest in being free from physical detention by one's own government,'' Hamdi v. Rumsfeld, 124 S.Ct. 2633, slip op. at 22 (2004) (citing Foucha v. Louisiana, 504 U.S. 71, 80 (1979)), it is imperative that courts reach sentencing decisions properly. Cf. United States v. Saro, 24 F.3d 283, 287-88 (D.C. Cir. 1994). The Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (''the PROTECT Act''), Pub. L. 108-21, 117 Stat. 650 (April 30, 2003) (codified as amended at 18 U.S.C. § 3553ff), establishes a new, more demanding appellate standard of review that depends on detailed findings by the district court, by which the appellate court is bound, absent clear error. Because the court concludes that the record of appellee's sentencing contains unclear reasoning by the district court and lacks detailed factual findings on relevant considerations for departing from the United States Sentencing Guidelines, see, e.g., U.S.S.G. §§ 5K2.0, 5K2.11, the court should obtain detailed findings from the district court before conducting its de novo review of the district court's departure from the Guidelines. For an appellate court to act on the basis of an insufficient district court record, and in the process to make findings of fact not touched upon by the court below, muddles the distinct and separate roles of the district and appellate courts under the PROTECT Act. Accordingly, I would remand the case to the district court, which has ''an institutional benefit over appellate courts'' that do not see nearly as many Guidelines cases, Koon v. United States, 518 U.S. 81, 98 (1996), so that the court may make detailed findings in support of its decision to depart from the Sentencing Guidelines. See 18 U.S.C. §§ 3553(c), 3742(e).
Under the PROTECT Act, the appellate court must accept the district court's findings of fact unless they are clearly erroneous, but reviews de novo for limited purposes the district court's determination to depart from the Sentencing Guidelines. See id. § 3742(e). The appellate court is still required to give ''due deference to the district court's application of the guidelines to the facts.'' Id. § 3742(e). See In re Sealed Case, 350 F.3d 113, 116 (D.C. Cir. 2003). However, if a sentence is outside the applicable guideline range, and is either not explained by a written statement of reasons, or based on an impermissible factor, de novo review is warranted. See id. § 3742(e)(3)(A), (B). But in conducting de novo review, the appellate court is limited by the PROTECT Act to determining, as relevant here, whether the departure (1) ''does not advance the objectives'' of 18 U.S.C. § 3553(a)(2), namely, reflecting the seriousness of the offense, promoting respect for the law, providing just punishment and adequate deterrence, protecting the public, and providing the defendant with effective correctional treatment; (2) is ''not authorized'' under id. § 3553(b), which directs that sentences be imposed within the guidelines 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''; or (3) is ''not justified by the facts of the case.'' Id. § 3742(e)(3)(B)(i)-(iii); see also id. § 3742(f).
The district court made the following findings of fact. After accepting appellee's plea to the superceding indictment, the court released appellee on his personal recognizance pending sentencing, finding that appellee ''is gain[ful]ly employed. He has a stable residence. He has been in complete compliance since January of this year with all the conditions of pretrial supervision. I see no basis on which to lock him up at this point.'' Transcript of Plea Proceedings, Apr. 24, 2003, at 17. At sentencing, in considering the defense motion for a downward departure of four levels under U.S.S.G. §§ 5K2.0 and 5K2.11, the district court stated that the issue was ''the reason for which [the appellee] possessed a weapon.'' Sentencing Transcript, Apr. 29, 2003, at 5. Noting that appellee's felony conviction was 13 years old, the court challenged the prosecutor's statement that ''the government is confident that [appellee] was aware that he was not to posses a firearm under any circumstances.'' Id. In response to the prosecutor's final statement that a departure would not be justified, the court stated, ''[Appellee] is 42 years old. He has been gainfully employed. * * * He hasn't done anything wrong since 1989. He supports his children or tries to support his children. He seems to me to be an ideal candidate for probation, and I see no point at all in sending him to prison at this point. I am going to grant the Motion for a Departure, and you can put me on Mr. Ashcroft's list.'' Id. at 6. (Under the PROTECT Act, the Attorney General must report to the House and Senate Judiciary Committees within 15 days of any downward departure by a district court from the Sentencing Guidelines. See 18 U.S.C. § 3553 note (2003)). After hearing defense counsel's view that probation was warranted because appellee was ''a very atypical [d]efendant,'' id. at 7, the district court, upon hearing from appellee personally, sentenced him to three years probation.
In the Judgment, the district court stated that it was departing from the Sentencing Guidelines under U.S.S.G. §§ 5K2.0 and 5K2.11 for the reasons stated in appellee's motion for downward departure, and that it was adopting the factual findings and Guideline application in the presentence report. Appellee's departure motion briefly described his current employment and the circumstances of his predicate felony conviction and present arrest in support of his claim that his ''conduct [wa]s vastly different than the overwhelming majority of cases prosecuted under 18 U.S.C. § 922(g).'' The motion argued that appellee's conduct did not threaten the harm sought to be prevented by § 922(g), but was more akin to comparable cases where courts had granted departures, and differed significantly from typical conduct covered by the heartland of cases encompassed by the Sentencing Guidelines. Other than reciting appellee's employment and arrest circumstances, however, the motion was cursory and devoid of substantive legal arguments, simply citing the holdings of various cases. While the presentence report provided additional factual information about appellee, the district court did not articulate which and to what extent any of these other facts influenced its decision to depart.
Doubtless, district court findings, whether oral or written, have often been far from extensive in view of the limited nature of appellate review that existed prior to the PROTECT Act. See Koon, 518 U.S. at 91 (1996); United States v. Bridges, 175 F.3d 1062, 1065 (D.C. Cir. 1999). While the PROTECT Act does not substantively change the district court's ability to depart from the Sentencing Guidelines in most cases, it does make a procedural change by requiring the district court to set out in writing its reasons for departure, as well as expanding the scope of appellate review of such departures. See United States v. VanLeer, 270 F. Supp. 2d 1318, 1324 (D. Utah 2003). Under § 3553(c)(2), the district court is required to state ''with specificity'' his or her ''reasons [for departing] TTT in the written order of judgment and commitment.'' Previously the statute only required the district court to state ''in open court'' ''the specific reason'' for a departure. See 18 U.S.C. § 3553(c)(2004) (amending 18 U.S.C. § 3553(c)(2000)). See Op. at 8. The House sponsor and other supporters of the amendment, calling for de novo appellate review, were of the opinion that district courts were too often departing from the Sentencing Guidelines, and that the abuse of discretion standard for appellate review under Koon was inadequate to the task of ensuring that district courts followed the Guidelines. See CONG. REC. H2422 (daily ed. Mar. 27, 2003) (statement of Rep. Feeney); id. at H2423 (statement of Rep. Sensenbrenner). By requiring the district court to provide written reasons, Congress increased the pressure on district courts to make detailed findings of fact to support their departure decisions. Indeed, even if the statutory language in § 3553(c) had remained unchanged, the more demanding de novo standard for appellate review itself places a greater premium on fact-finding by the district court.
I concur in holding that there is no retroactivity problem under the reasoning of Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994). See Op. at 6-7. The PROTECT Act neither impairs appellee's rights to a departure under the Sentencing Guidelines nor imposes new duties on appellee to obtain a departure. See Ibrahim v. District of Columbia, 208 F.3d 1032, 1035-36 (D.C. Cir. 2000). I also concur in holding that applying the PROTECT Act to appellee does not violate the ex post facto clause of the Constitution, see Op. at 7, U.S. CONST. art. I, § 10, cl. 1. The PROTECT Act does not increase the punishment for violations of 18 U.S.C. § 922(g). See Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 504 (1995) (citing Collins v. Youngblood, 497 U.S. 37, 43 (1990)). Cf. United States v. Shorty, 159 F.3d 312, 315 (7th Cir. 1998). However, the court brushes aside too quickly the concerns appellee raises about the practical impact of the PROTECT Act. See Op. at 8-9. These concerns are significant for purposes of enabling the appellate court to properly perform its role under the PROTECT Act. Because the PROTECT Act calls for written and more detailed fact-finding by the district court and makes the district court's findings that are not clearly erroneous binding on the appellate court, it necessarily follows that in departing from the Sentencing Guidelines, the district court's factual findings must be more rigorous. See, e.g., VanLeer, 270 F. Supp. 2d at 1324-25.
Without detailed factual findings by the district court to support a departure from the Sentencing Guidelines, the appellate court, even where, as here, it accepts appellee's version of the facts, see Op. at 8, is left to speculate and surmise. For instance, the court states that the district court ''made no mention of the circumstances of [appellee's] arrest or of his representations regarding the shooting range.'' Id. at 5. The court then proceeds to make its own findings of fact, speculating that appellee evidenced no intention to permanently relinquish the firearm. See id. at 12. The court further acknowledges that the district court's reasoning in granting the departure was unclear. In this regard, the court observes that the district court's findings left uncertain whether the district court found that departure under U.S.S.G. § 5K2.0 was warranted based on a ''combination of factors,'' which together might have taken the case outside the heartland of offenses covered by the Guideline. Id. at 15. The court implicitly admits, in making its own findings, that the district court failed to elaborate on key considerations that are significant for purposes of justifying a departure in the instant case, such as an explanation of precisely why the district court concluded that appellee's case was ''exceptional.'' Id. at 14, 17. Additionally, as the court describes, the district court only touched very generally on some of its reasons for finding departure warranted. See id. at 5.
Notwithstanding the absence of detailed factual findings by the district court, the court draws its own inferences and conclusions, stating, on the basis of an admittedly inadequate record, that appellee's circumstances were clearly not ''exceptional.'' Id. at 14, 16-17. This conclusion reflects the quintessential type of fact-finding that a district court is in a better position to undertake than an appellate court. A determination of the reason why appellee possessed the firearm, see, e.g., United States v. Shell, 972 F.2d 548, 552 (5th Cir. 1992), as well as a determination of whether facts are present to ''an exceptional degree,'' Koon, 518 U.S. at 95-96 (quoting U.S.S.G. ch. 5, pt. H, intro. cmt.), are best evaluated in the first instance by the district courts. See United States v. Rhodes, 145 F.3d 1375, 1383-84 (D.C. Cir. 1998). As the Supreme Court observed in Koon, 518 U.S. at 98, albeit in support of an abuse of discretion standard for appellate review, district courts have ''an institutional advantage over appellate courts TTT, especially as they see so many more Guidelines cases than appellate courts do.'' Koon, 518 U.S. at 98. With enactment of the PROTECT Act, the district court's institutional advantage remains unchanged; appellate courts see far fewer Sentencing Guideline cases than district courts and, moreover, the district court has the opportunity to question the defendant personally. See FED. R. CRIM. P. 32(c). Consequently, a district judge's determination of a defendant's purpose or that a case is truly ''exceptional'' based on specific findings of fact will generally be more credible than when an appellate court makes the same determination based on a sparse factual record from the district court.
In making factual findings, see Op. at 12, 14, 16-17, and drawing inferences to support its conclusions, then, the court distorts the appellate court's role beyond that contemplated by the PROTECT Act. Cf. 18 U.S.C. § 3742(f). See also Williams v. United States, 503 U.S. 193, 205 (1992). Simply assuming the defendants' proffer of the facts to be true, see Op. at 8, does not suffice, for this ignores the district court's ''special competence -- about the 'ordinariness' or 'unusualness' of a particular case.'' Koon, 518 U.S. at 98 (quoting United States v. Rivera, 994 F.2d 942, 951 (1st Cir. 1993)). Findings of fact by a district court reflect experienced judgment in Sentencing Guidelines cases to the factual proffers and arguments of the parties in a particular case. See FED. R. CRIM. P. 32(c). The colloquy between the prosecutor and the district court that occurred in this case is indicative of such judgments. Further, the presentence report contains detailed facts from which the district court may draw in determining whether or not to depart from the Sentencing Guidelines. See id. By contrast, a defendant, as here, may fail to identify all the relevant circumstances or fail to state them in a manner that is likely to persuade an appellate court. See, e.g., Op. at 4, 8. Appellee's departure motion appears to assume that the age and nature of his predicate felony conviction, his current employment, and his innocent purposes in possessing the firearm sufficed to support a departure. Whether true or not, the deficiencies in the district court's factual findings pointed out by the court are of a type that should be fleshed out at a sentencing hearing, where in addition to obtaining assistance from the parties' written pleadings, the district court can independently question the parties as well.
Simply put, in the PROTECT Act, Congress not only preserved the significant fact-finding role of the district court sentencing, it insisted upon it. Congress' focus was not on transforming the fact-finding responsibilities long vested in the district courts, but rather on ensuring that the courts follow the Sentencing Guidelines. See 149 CONG. REC. H2423 (daily ed. Mar. 27, 2003) (statement of Rep. Feeney). To that end, Congress requires detailed fact-finding by the district court and written reasons in the event of departure from the Guidelines. See 18 U.S.C. § 3553(c). While expanding appellate review of sentencing departures in an effort to ''address[ ] long-standing and increasing problems of downward departures from the Federal sentencing guidelines,'' 149 CONG. REC. H2422 (daily ed. Mar. 27, 2003) (statement of Rep. Feeney), Congress made no change to the clearly erroneous standard of review of district court findings of fact. See 18 U.S.C. § 3742(e)(4). Importantly, the roles of the district court and the appellate court remain separate and defined under the PROTECT Act. Heretofore, the court has recognized the distinct perspective of the district court, see Rhodes, 145 F.3d at 1384, and has not been loath to remand in sentencing matters in recognition that a district court may draw different inferences than an appellate court looking only at a paper record. See United States v. Lam, 924 F.2d 298, 307 (D.C. Cir. 1991). Our sister circuit, faced with the task of conducting de novo review of sentencing departures after enactment of the PROTECT Act, has concluded that the proper remedy for insufficient fact-finding by the district court is a remand for additional fact-finding. See United States v. Huerta, 371 F.3d 88, 95 (2d Cir. 2004). As the Second Circuit observed, its review of the district court's sentencing determination was hampered by the limited nature of the district court's factual findings. See id. To date, other circuits have remanded for the district court's initial consideration of relevant considerations under the PROTECT Act. See United States v. Bostic, 371 F.3d 865, 877 n.10 (6th Cir. 2004); United States v. Lynch, 2004 WL 1567852 (5th Cir. 2004).
For these reasons, I would remand the case to the district court for detailed factual findings and an explication of reasons for departing from the Sentencing Guidelines, which must be stated ''with specificity'' and in writing, as required by the PROTECT Act. See 18 U.S.C. § 3553(c). Accordingly, to this extent, I respectfully dissent.
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Samples of Work
Mixture of Photos by Ron Rehana
Enjoy this collection of samples as I continue to work on my new website. I will be adding more collections from previous and up coming projects. Look for a new services page with packages and deals of the month. Feel free to contact me to book a session or discuss future project details.


text: Just this morning I was playing Plants vs. Zombies - and was winning - but now I can't seem to open ANY app on my iPod. Right around the lunch hour I tried to play Warpgate and the loading screen appeared, then closed. When I press the sleep/wake button, my iPod takes 5 seconds to respond. When I slide to unlock, it takes just as long with the slider stuck at the right side. WHAT HAPPENED? I have been noticing my screen flashing blue recently, but I think this is an alert from Intelliscreen. Respringing has had no effect, same with Safe Mode. I am reluctant to restart my iPod in the event it never boots again. Downloading an app from the app store has not resolved the issue. ------------------double post merged------------------OKAY PANIC TIME! When I plugged in my iPod, the mouse turned off and Windows 7 froze. A moment later the "Installing device driver software..." for an "UnknownPrinter" (without the space in between the words). iTunes opened up (I told it not to when I plug in my iPod) and said it "iTunes could not connect to the iPhone "" because an error occurred during reading from the device". WHAT HAPPENED??? (I seem to be having a bad day...) While the driver was installing, the battery icon changed from charging to normal, and back to charging. I'm really concerned for my device that is 2 weeks out-of-warranty.


text: CONEXPO-CON/AGG 365 Your source for the latest news and technologies impacting the construction industry. Anti-Corrosion Tech to Take Off Article, 12/6/2016 9:58:53 PM The market for offshore oil and gas civil construction is set to grow—and as this happens, anti-corrosion technologies such as self-healing or other smart coatings could take off.This is according to a new report from Frost & Sullivan... Continue Reading Get an Edge with Smart Excavators Article, 12/6/2016 9:58:37 PM Machine control solutions on excavators enable operators to improve productivity and safety at the construction job site. Now, companies are partnering to integrate machine control technology with excavators for the global market.As one... Continue Reading Welding: Trends and Predictions Article, 12/6/2016 9:58:18 PM While some types of equipment and associated technologies are seeing quick adoption, others aren't taking off as quickly. Case in point: welding equipment. A new report shows slow adoption of advanced welding technologies is one of the... Continue Reading ITS: The Future Is Here Article, 12/2/2016 2:00:48 PM In early November, Americans went to the polls to choose their new leaders. And the outcome of this election will impact what steps are taken to improve infrastructure—and how technology will play a role.Regardless of how the election... Continue Reading Environmental Impact on Equipment Article, 12/2/2016 2:00:48 PM Have you given some thought to the types of materials and surface coatings used to protect construction equipment? If not, perhaps now is the time, as some factors are going to impact market conditions and could alter the face of your... Continue Reading Connectivity Keeps Assets Talking Article, 12/2/2016 2:00:48 PM From heavy equipment to hand tools and everything in between, having connectivity at the jobsite is essential to running a productive business. The challenge, however, is getting that connection in remote locations.Enter satellite. The... Continue Reading Standards: Don't Give Up Your Seat at the Table Article, 12/1/2016 4:27:21 PM The U.S. Department of Commerce's International Trade Administration just released a staggering statistic. According to its latest research, up to 93 percent of global trade is impacted by standards and technical regulations.So, if you... Continue Reading Simulation Enhances Machines Article, 12/1/2016 4:26:51 PM Fluid power is a key component in heavy equipment at the construction jobsite—and improving function and efficiency can have a big impact on operations. This is a chief objective for many manufacturers that are looking to improve... Continue Reading Heavy Trucks Trend Upward Article, 12/1/2016 3:05:07 PM Despite mixed factors, including infrastructure investment increases, energy conservation and emission reduction, logistics transportation business growth, and rising downside risks to the economy, China's heavy truck industry will... Continue Reading On the Road to Innovation Article, 11/30/2016 11:26:37 PM Today, the technology used to build roads, bridges and other infrastructure is changing how business is done in the construction industry. A good example is the hot-in-place recycling technology that was used on the Xinjiang Changji Z902... Continue Reading Displaying results 1-10 (of 548) < 1 2 3 4 5 6 7 8 9 10 >


text:
Spinach Rice Casserole
Total Time
Prep 15 mins
Cook 35 mins
Ingredients Nutrition
- 1 onion, chopped
- 2 cups spinach, chopped
- 3 cups brown rice, cooked
- 1 tablespoon low-sodium tamari
- 1 teaspoon cumin
- 2 tomatoes, sliced
- Saute onion in a small amount of water until translucent.
- Add spinach and steam (covered) until barely tender (about 5 minutes).
- Remove from heat.
- Mix the rice with the onions, spinach and tamari.
- Press into non-stick baking dish (9-inch square or 12-inch by 7-inch).
- Layer sliced tomatoes over the top.
- Bake 30 minutes at 350 degrees.
Most Helpful
Good combo of flavors! I served it with Recipe #400362, and it was really great all together. Thanks for sharing!
This is an attractive dish. I use brown rice most of the time and am always on the look out for new and different ways to prepare it. I decreased the recipe to serve 3 and used 2 fresh from the garden tomatoes to top off the dish. I used fresh spinach and think that we would have enjoyed it more had I used a little more than the recipe called for. Also, I think that garlic would be a pleasing addition. Thanks for posting.


text:
Statement: Joint Special Operations Command announced the opening of a press center for coverage of liberalization city of Mosul in the province of Arbil operations
Wrote: October 13, 2016
Wrote: October 13, 2016
Joint Special Operations Command announced the opening of a special press center to cover military operations liberation of the city of Mosul in the province of Arbil.
And demanded that the media war cell in a statement all media channels Iraqi, Arab and international news agency and war correspondents who wish to cover the battle to liberate Mosul send media cadres and numbers of their own wheels names for the purpose of covering the liberation of Mosul battles, referring to not allow any media or channel coverage without obtaining the approval and authorization issued by the joint Special operations command indicating that a press center in Arbil will be dedicated to press conferences and resides where every spokesmen.
Media Harbi cell also confirmed the opening of a press center in Qayyarah base and provide the Joint Special Operations Command in Arbil lists of journalists to allow them to attend press conferences calling on all media teams to be present in Erbil and move from Arbil to Qayyarah base after obtaining the approvals according to the statement.


text:
by Pars001
Tags: Fan Fiction, Christmas, Time Travel, Supernatural, Elves, Magic, .
Desc: : John was alone, though a good man life was almost pointless to him. A sudden storm traps him in the snow, then things get interesting!
John Timberland stretched his six foot body out as he climbed out of his car. Rubbing his blue eyes he shook his head at the scene before him. Several people were shouting at the desk clerk at the front door. Walking up the poor man looked at John with a pleading look.
"What are you going to do about this?" A woman was almost screaming at the man.
"I apologize ma'am, we are doing all we can to remedy the situation," the clerk was saying.
"Remedy?! REMEDY!!!? No, I want this done NOW not when you are ready!" The woman shouted raising the volume of her voice.
"I'm sorry ma'am, as I said we are doing all we can..." started the clerk.
"Well you should be doing a hell of a lot more! I demand a room now! I paid well in advance and I want the room I requested!" The woman went on.
John walked up a moment later, "if you wish, the lodge can issue you a full refund."
The woman turned and looked John up and down. He could almost feel her sneer at him. "I don't see how it is any business of yours a lowly bus boy!" Turning back to the clerk the woman stated, "I wish to see the owner NOW! Then perhaps after I have your job, then I can have this business taken care of. Where is he? I demand to see him now!"
The clerk turned red faced toward John another pleading and embarrassed look on his face. Straightening up the clerk said, "I am sorry Mr. Timberland. They have been here all morning."
This time it was the woman's turn to be red faced and embarrassed. "You are John Timberland? Then I apologize to..."
John's face went from a smile to a scowl, "as I said the lodge will refund your deposit and transportation will be provided OUT of here. This type of behavior isn't tolerated here." Holding up his hand to quiet the startled woman, John continued. "This is a retreat not your own personal torture chamber. Now then I suggest that you leave of your own volition before I have you forcefully removed!"
Sputtering, the woman spat out, "Well I never!"
"No, and you won't not while I am the owner here! Ah! I see your ride is here. Now if the rest of you feel the same as ... this one." John said indicating the woman. "Then you can also depart with her." John pointed to the bus that had pulled up, a look of disdain on his face.
Turning in a huff the woman stormed toward the bus. "This isn't over John Timberland!"
"Oh but I think it is! By the way don't come back you hear!" John called to her retreating back.
Most of those that were with the woman were right behind her. Almost all of them huffing and sneering as they turned their backs.
The clerk walked up beside John, "Thank you sir, I wasn't sure I could hold out much longer!"
"I'm just glad I got here in time to save you from an embarrassing situation. You did very well Phil, considering." John told him as he clapped the man on the shoulder.
The clerk nodded as John walked on into the lodge. An hour later John was out on the slopes checking that they were going as he expected them to. "Everything's as you wanted it sir." John's ski area maintenance chief reported.
"Good, if all goes well we should get another few inches of powder tonight. I want the crew to recheck all their equipment before they groom the slopes tomorrow." John advised the man.
"Yes sir, I'll have them start right away!" With that the man moved off with several of his crew.
John just shook his head as he look at several of the runs. Still a little upset, John decided to take one of the black runs to blow off steam. Starting down the hill John didn't notice the clouds that were rapidly moving in. Almost half way down there was a sudden clap of thunder near the top of the hill. Feeling the impending avalanche behind him, John started to race faster down the course.
Crap John thought he was too far from the turns and bottom to make it. Looking at the nearby mountain side, John saw the cave almost too late to stop. Activating his avalanche beacon he headed into the cave. Barely two feet inside John snapped on his flashlight as the avalanche covered the opening of the cave. Looking around John sighed wouldn't do to survive an avalanche and then get mauled by a hibernating bear.
Taking the beacon off he left it near the covered mouth of the cave then went to explore. Further in John was surprised when the cave not only opened up into a huge cavern but there was more than sufficient heat. Breathing a sigh of relief John saw no signs of bears, but better to be safe than sorry.
Walking around John noticed that the further he went into the cave the warmer it got. Rounding what appeared to be a huge outcrop of rocks John stopped his mouth agape. There in front of him was another opening! The strange thing was there was warm air coming though into the cave, what was going on?
Advancing further John tentatively approached the opening. A small male's head popped in for a moment then was gone. "He's finally here!" John thought he heard a male's voice say. Were they talking about him, John thought?
Suddenly three short females walked into the cave through the opening. "Hello sir." The oldest appearing of the three said. "We have been waiting for you for a very long time, sir." She said her light brown hair gently lying to the side of her face. "I am Triance. These are my sisters Frila, and Miadas." All three bowed to him. "Please come, sure we have a place prepared for you. It has been for some time."
John could only stare opened mouth at the three short females. They weren't children; that was obvious, but what they were he couldn't say. They all took his hands and gently led him out into the sunlight. Wait! Sunlight? Warmth? What in the world was going on? "I'm sorry I seem to have been hurt far worse than I thought. I should wake up in a few minutes." John said as he suddenly stopped seeing the small town not twenty feet away.
The younger two females started to giggle. They quickly quieted when the one called Triance gave them a stern look. "I know it's a lot to take in sir. Torran will explain as soon as we have you settled."
John could only nod as he was led to a central building larger than the rest. Once inside the younger two left as Triance stood aside and waited. A few moments later a small male about three and a half foot tall entered the room. "Ah! Finally you are here sir! We have been waiting for you a very long time. Now I know you have a myriad of questions, I am here to answer all that you have."
John again could only nod though a million questions were going through his mind not a single one would leave his mouth. "I..." John started then stopped really unsure of what to say let alone ask.
Sighing Torran started for John. "Yes sir, we are what your kind would call elves. Though recently in your time our distant relatives the Quendi have been depicted. They are very tall and try to not associate with your kind."
"Elves? Uh huh. You really expect me to believe you?" A bewildered John said.
"I apologize sir; I know it is a lot to take in. You will have time to gain all the knowledge you need." Here the one called Torran smiled. "It was foretold that you would be difficult and tall. I am sorry to say that you are rather painful to look at also. I do not mean to insult you sir but you are the first we have ever seen in person. Your kind is extremely ugly to us; again I apologize as I said we mean no disrespect."
"Ugly?" A startled John stated. "Here I thought I was rather handsome. That might explain why I haven't had a date in so long." John said as he scratched his head.
"Oh no sir! It is just to us that you are that way! I am sure that in your time to your kind you are quite spectacular." A slightly red faced Torran said.
"Alright," John said finally starting to get a handle on things. "You said you have been waiting for me for a long time. May I ask why?"
"Sir, you can ask anything that you wish. Nothing is denied to you, it was foretold ages ago that one of your kind would appear. They would enter the rift at a time of personal peril, bringing with them a knowledge that we need. The one of your kind would be alone and hurt, though not physically. They would have a great love of all children but none of their own." Torran said.
Crap John thought they were right on every account so far. "What else was foretold?"
Here Torran smiled widely though not sure it just felt so right and satisfying to answer this human's questions. "The human would be a great leader but would need time to heal his heart. He would be fair but firm just who we need to lead us."
"Lead you? Are you an army? Are you planning to attack someone?" A worried John asked causing an appalling look to appear on Torran's face.
"Oh no sir!" Torran said, causing John to breathe out a sigh of relief that made Torran's face light up even more. "You really are as the writings said!" Here Torran bowed to John as did Triance.
"Please! I am not a god or a king, I feel very uncomfortable when you do that!" Again Torran's eyes went wide as did Triance's.
"You really are the one!" Triance whispered as she stared at John. "Praise be to the creator!"
John looked at her with a confused look. "Torran what am I to lead you to or for? What do you and your kind do here?"
Almost bowing again Torran stopped and said, "We are builders and makers. We are here to help you as we have been for a very long time."
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Kenesserie Camp
Summer Camp
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Kenesserie Camp has been a part of Chatham-Kent for over 50 years. Many of our campers are the 2nd or 3rd generation from their family to experience the magic of summer camp at Kenesserie. Nestled on the bluffs of Lake Erie, not far from Ridgetown, camp is a place where kids can be kids, make new friends, play in the woods and feel safe being themselves. Kenesserie Camp is an outreach ministry of Kent Presbytery of the United Church of Canada. Everyone is welcome at camp.
What's Happening at Camp
Summer Camp Staff Information
2017 Summer Camp Schedule
Kenesserie Kickoff & Walk-a-thon
Kenesserie is a Christian camp, a part of God's creation which supports and encourages sharing and growth of faith and friendships within a safe community.
Kenesserie Camp, 18669 Kenesserie Road, RR 1, Ridgetown, Ontario, Canada, N0P 2C0 519-674-2497
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Zhang Q.-Y.,Health Science University |
Wu S.-S.,Capital Medical University |
Lv P.-L.,University of Science and Technology of China |
Huang H.-W.,Health Science University |
And 4 more authors.
Investigative Ophthalmology and Visual Science | Year: 2016
PURPOSE. The aim of this study was to quantify the relationship between categories of body mass index (BMI) and age-related macular degeneration (AMD) risk in different stages. METHODS. MEDLINE, EMBASE, and ISI Web of Science were searched for all eligible studies on the relationship between BMI and incident early or late AMD. The analyses were based on data extracted from study reports. The pooled relative risks (RRs) with 95% confidence intervals (CIs) were calculated to evaluate the strength of this association, and dose-response relationship was assessed by restricted cubic spline. RESULTS. Seven prospective cohort studies with 1613 cases identified among 31,151 subjects were included. For overweight, the relationship remained insignificant for its association with both early AMD (RR = 0.92, 95% CI: 0.68-1.15; P = 0.54) and late AMD (RR = 1.09, 95% CI: 0.93-1.25; P = 0.18). A marked 32% increase in the risk of developing late AMD was noted among obese individuals (RR = 1.32, 95% CI: 1.11-1.53, P < 0.01), while obesity showed no significant association with early AMD (RR = 0.91, 95% CI: 0.74-1.08; P = 0.67). Furthermore, elevated BMI showed a linear dose-response relation with AMD risk (Pnonlinearity = 0.17), and the AMD risk increased by 2% (RR = 1.02, 95% CI: 1.01-1.04) for each 1 kg/m2 increase in BMI within the overweight and obese BMI ranges. CONCLUSIONS. Excess body weight was weakly associated with increase in the risk of AMD in a dose-dependent fashion, especially for its late stage, indicating that keeping normal body weight and avoiding further weight gain may confer potential protection against this disease. © 2016, Association for Research in Vision and Ophthalmology Inc. All Rights Reserved. Source
β1-Adrenergic blocker bisoprolol reverses down-regulated ion channels in sinoatrial node of heart failure rats
du Y.,First Affiliated Hospital Of Xian Jiaotong University |
Zhang J.,First Affiliated Hospital Of Xian Jiaotong University |
Xi Y.,Texas Heart Institute |
Wu G.,First Affiliated Hospital Of Xian Jiaotong University |
And 8 more authors.
Journal of Physiology and Biochemistry | Year: 2016
Bisoprolol, an antagonist of β1-adrenergic receptors, is effective in reducing the morbidity and mortality in patients with heart failure (HF). It has been found that HF is accompanied with dysfunction of the sinoatrial node (SAN). However, whether bisoprolol reverses the decreased SAN function in HF and how the relevant ion channels in SAN change were relatively less studied. SAN function and messenger RNA (mRNA) expression of sodium channels and hyperpolarization-activated cyclic nucleotide-gated (HCN) channel subunits were assessed in sham-operated rats, abdominal arterio-venous shunt (volume overload)-induced HF rats, and bisoprolol- treated HF rats. SAN cells of rats were isolated by laser capture microdissection. Quantitative real-time PCR analysis was used to quantify mRNA expression of sodium channels and HCN channel subunits in SAN. Intrinsic heart rate declined and sinus node recovery time prolonged in HF rats, indicating the suppressed SAN function, which could be improved by bisoprolol treatment. Nav1.1, Nav1.6, and HCN4 mRNA expressions were reduced in SAN in HF rats compared with that in control rats. Treatment with bisoprolol could reverse both the SAN function and the Nav1.1, Nav1.6, and HCN4 mRNA expression partially. These data indicated that bisoprolol is effective in HF treatment partially due to improved SAN function by reversing the down-regulation of sodium channels (Nav1.1 and Nav1.6) and HCN channel (HCN4) subunits in SAN in failing hearts. © 2016 University of Navarra Source
Apamin-Sensitive K+ Current Upregulation in Volume-Overload Heart Failure is Associated with the Decreased Interaction of CK2 with SK2
Yang D.,First Affiliated Hospital Of Xian Jiaotong University |
Wang T.,First Affiliated Hospital Of Xian Jiaotong University |
Wang T.,Shaanxi Key Laboratory Of Molecular Cardiology Xian Jiaotong University |
Wang T.,Key Laboratory Of Environment And Genes Related To Diseases Xian Jiaotong University |
And 9 more authors.
Journal of Membrane Biology | Year: 2015
Recent studies have shown that the sensitivity of apamin-sensitive K+ current (IKAS, mediated by apamin-sensitive small conductance calcium-activated potassium channels subunits) to intracellular Ca2+ is increased in heart failure (HF), leading to IKAS upregulation, action potential duration shortening, early after depolarization, and recurrent spontaneous ventricular fibrillation. We hypothesized that casein kinase 2 (CK2) interacted with small conductance calcium-activated potassium channels (SK) is decreased in HF, and protein phosphatase 2A (PP2A) is increased on the opposite, upregulating the sensitivity of IKAS to intracellular Ca2+ in HF. Rat model of volume-overload HF was established by an abdominal arteriovenous fistula procedure. The expression of SK channels, PP2A and CK2 was detected by Western blot analysis. Interaction and colocalization of CK2 with SK channel were detected by co-immunoprecipitation analysis and double immunofluorescence staining. In HF rat left ventricle, SK3 was increased by 100 % (P < 0.05), and SK2 was not significantly changed. PP2A protein was increased by 94.7 % in HF rats (P < 0.05), whereas the level of CK2 was almost unchanged. We found that CK2 colocalized with SK2 and SK3 in rat left ventricle. With anti-CK2α antibody, SK2 and SK3 were immunoprecipitated, the level of precipitated SK2 decreased by half, whereas precipitated SK3 was almost unchanged. In conclusion, the increased expression of total PP2A and decreased interaction of CK2 with SK2 may underlie enhanced sensitivity of IKAS to intracellular Ca2+ in volume-overload HF rat. © 2015, Springer Science+Business Media New York. Source
Ning F.,First Affiliated Hospital Of Xian Jiaotong University |
Luo L.,First Affiliated Hospital Of Xian Jiaotong University |
Ahmad S.,University of Cambridge |
Valli H.,University of Cambridge |
And 14 more authors.
Pflugers Archiv European Journal of Physiology | Year: 2016
Catecholaminergic polymorphic ventricular tachycardia (CPVT) predisposes to ventricular arrhythmia due to altered Ca2+ homeostasis and can arise from ryanodine receptor (RyR2) mutations including RyR2-P2328S. Previous reports established that homozygotic murine RyR2-P2328S (RyR2S/S) hearts show an atrial arrhythmic phenotype associated with reduced action potential (AP) conduction velocity and sodium channel (Nav1.5) expression. We now relate ventricular arrhythmogenicity and slowed AP conduction in RyR2S/S hearts to connexin-43 (Cx43) and Nav1.5 expression and Na+ current (INa). Stimulation protocols applying extrasystolic S2 stimulation following 8 Hz S1 pacing at progressively decremented S1S2 intervals confirmed an arrhythmic tendency despite unchanged ventricular effective refractory periods (VERPs) in Langendorff-perfused RyR2S/S hearts. Dynamic pacing imposing S1 stimuli then demonstrated that progressive reductions of basic cycle lengths (BCLs) produced greater reductions in conduction velocity at equivalent BCLs and diastolic intervals in RyR2S/S than WT, but comparable changes in AP durations (APD90) and their alternans. Western blot analyses demonstrated that Cx43 protein expression in whole ventricles was similar, but Nav1.5 expression in both whole tissue and membrane fractions were significantly reduced in RyR2S/S compared to wild-type (WT). Loose patch-clamp studies similarly demonstrated reduced INa in RyR2S/S ventricles. We thus attribute arrhythmogenesis in RyR2S/S ventricles resulting from arrhythmic substrate produced by reduced conduction velocity to downregulated Nav1.5 reducing INa, despite normal determinants of repolarization and passive conduction. The measured changes were quantitatively compatible with earlier predictions of linear relationships between conduction velocity and the peak INa of the AP but nonlinear relationships between peak INa and maximum Na+ permeability. © 2015, The Author(s). Source
Jiang C.,Health Science University |
Jiang C.,Key Laboratory Of Environment And Genes Related To Diseases Xian Jiaotong University |
Meng L.,Health Science University |
Meng L.,Key Laboratory Of Environment And Genes Related To Diseases Xian Jiaotong University |
And 9 more authors.
International Journal of Clinical and Experimental Medicine | Year: 2016
Introduction: Extracellular miRNAs in the blood plasma/serum of patients as novel promising diagnostic markers for various diseases has aroused huge attention. Among various major platforms for extracellular miRNA detection, extensively used RT-qPCR is considered practical and cost-efficient in experimental investigation. However, there are also many technical challenges, hence the development of robust methodology for extracellular miRNA detection is in good need. Methods: Focused on the controversial procedures present in recent studies, we intend to solving these technical problems and seeking for optimal procedures for extracellular miRNA profiling using the RT-qPCR method. Results: We addressed our concerns during the whole detection such as various key points during blood handling, choice making during RNA isolation and miRNA RT process, practical management in global miRNAs profiling using PCR as well as data normalization and processing. Meanwhile, we described and evaluated our profiling method in detail, intended to optimize the procedures that might lead to variable results from independent experiments, and further recommend this standardized optimal procedure. Conclusion: Our work might provide a potent technical optimization for extracellular miRNA detection. © 2016, E-Century Publishing Corporation. All rights reserved. Source


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Siri can help you in so many ways, yet if you're not careful, your digital assistant can help others to snoop on you. It can be pretty alarming to learn the variety of personal information anyone can access from your lock screen via Siri, including your home address and calendar appointments. If you'd rather not allow strangers to ask Siri for directions to your house among other things, just go to Settings, Touch ID & Passcode, and after entering your passcode, scroll down to Allow Access When Locked, and toggle off Siri.
Restrict Kids' Access to Your iDevices
So child lock is not a small deal. You gotta do that if you don't want to end up in court, maybe thats for a 911 call. These things should be checked clearly before you give your phone to kid to stop crying
Letting your child play a game on your phone can offer some much-needed quiet time. However, you hand over a lot more than a single game when you give your child your iPhone. That's where Restrictions come in handy, allowing you to block access to entire apps or types of content. To turn on this feature, go to Settings > General > Restrictions. You'll be prompted to set a special four-digit passcode just for Restrictions. Make sure this is different than your iPhone passcode to minimize the chance of your child memorizing it. Here you can block access to apps as well as movies and music with adult content. Make sure not to forget your Restrictions passcode!
There are times when you want privacy when going online. Yet Safari tracks what you search, offering up suggestions based on past searches and showing a list of recently visited sites in Safari under the Bookmarks folder. To stop this, just go to Safari and tap the Bookmarks tab, tap History, and tap Clear. To start fresh and wipe out all past searches, choose Clear All History. To clear just specific sites, choose between last hour, today, and today and yesterday.


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When it comes to screen protection, nothing is better than the feel and clarity of pure glass. ArmorGlas is like having no screen protector on at all - you won't even realize it's there.
ArmorGlas is made of premium, ultra-thin tempered glass material. It is designed to preserve the feel and clarity of the standard screen on your device while adding a substantial level of protection.
ArmorGlas is made to protect the screen of your device from fingerprints and scratches and is very effective at absorbing impact to minimalize the chance of shattering your display.
The glass is coated on the back with a silicone adhesive that makes installation easy and attaches the film completely so as to not affect the screen's touch sensitivity
An anti-smudge coating provides an anti-fingerprint layer for resistance to smudges and fingerprints
Sharp objects such as keys will not scratch the surface. If broken, ArmorGlas breaks into small pieces that are not sharp, making it safer than other glass products
ArmorGlas is easy to apply with few to no surface bubbles. Zero residue if removed
ArmorGlas is made of real tempered glass that is 3 times as strong as plastic film screen protectors. Made from premium grade Japanese tempered glass almost as hard as a diamond with resistance of 9H.
The edges of the ArmorGlas are rounded to be chip resistant, to create a smooth feel and to deflect shock from bumps and drops
Posted by Unknown on 17th Dec 2015
While I love the matte screen protector for my company iPad I have just one problem with this for the iPhone. Lots of home button use tends to wreak havoc on your thumb. The sharp edge of the glass is the problem. It needs to be beveled or rounded out.
Thank you for your note and your business.
We have included two "home" button spacers to fill the space to level when using the ArmorGlas with you phone. If they were not included please let us know and we can send them to you.
MGF Team
Posted by Y G R on 7th Nov 2015
Have had this Screen Protector on the iPhone Plus only a few days, but so far, am enjoying it and find it to be helpful. Have not yet used in sunlight, as we have had rain and clouds for days!!!
Posted by David Marsh on 6th Jan 2015
I put this on my iphone 6 and Ipad mini. Really does a great job reducing cockpit glare!
Posted by Guy Parker on 1st Dec 2014
This Armor glass is the best anti glare iphone product I have used, have owned 3-4 over the last several years. My nits are that it could be about 1-2mm wider for my 6 plus, the glass leaves a bit of flat glass on each side if centered correctly, at least according to my measurements. Would also be easier to install if "handles" were provided on the front side for installation purposes, as several of the competing glass screen protectors do. But I would repeat: the best anti glare iphone product I have used, and the only glass one I could find !


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Ever-shrinking technology nodes and increasing design complexity continue to drive the need for silicon-accurate simulation. Encompassing the most accurate and advanced device models and simulation algorithms, HSPICE® continues to be design and verification engineers' leading choice for silicon-accurate circuit simulation.
Over the past few releases, Synopsys' ongoing commitment to HSPICE innovation has yielded some incredible improvements in simulation performance while maintaining HSPICE golden accuracy to silicon. For more than three years, each release of HSPICE has run significantly faster than the preceding release. With the March 2010 release of HSPICE, expect to see your simulations run at least 2X faster than they did a few years ago. More specifically, here is a list of some of our most recent improvements in HSPICE:
For more information on HSPICE, visit www.HSPICE.com


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Home Airline tickets Europe Germany Berlin offer from ZAG, Zagreb
Flights Zagreb - BerlinSpecial offer
Did you know?
- The smallest aircraft operated by Swiss flying between Zagreb and Berlin is a DH8 with 74 seats.
- There are 1 nonstop flights on route from Zagreb to Berlin every day.
- The shortest nonstop flight time from Zagreb to Berlin is 1 hours, 35 minutes on Germanwings.
- The shortest nonstop flight from Zagreb to Berlin is 760 km on Germanwings.
- 13 airlines operate between Zagreb and Berlin.
Hotels in Berlin
Traveling on the route and need hotel in Berlin? Choose from more than 45,000 hotels.


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Ten Best Zombie Gamesaeromaxx777
The Contenders: Page 2XW
I haven't had this much fun since I played X-com and the Fallout games back when I was a kid! It has more content and a richer world than any other zombie game I've tried and since I like co-op games and found a fun clan pretty quickly I haven't felt like playing anything else for almost 2 weeks now...!
I started playing this game during breaks at work and I'm loving it so much I now actually look forward to getting to work (for the breaks
Super cool game! Lots of content and places to explore. Takes a while to get into, but well worth the time.
Its really an awesome Zombie game, easy to play MMORPG with deeper gameplay and cooler missions.V2 CommentsVisit Website
It's a work in progress and has a lot of potential. overall one of my personal favorites and should be higher on this list
What? Dayz Is Top 5 What the hell is going on?V1 Comment
What? Is the best ever it's kidding?
Better than the first in every way- only flaw is that it does not address specific issues in the first game. Just because the first game came out earlier, does not mean it is better! The first was more advanced for its date of release, but this game is still an improvement. They should swap places
This is an amazing zombie game, one of my favorites. It's great that the game is more slower pace which builds tension.V1 Comment
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List StatsUpdated 3 Dec 2016
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6 years, 271 days old
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2. Dead Island
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2. Minecraft
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Make a statement with on-trend decor pieces.
Your coupon will be applied to the highest regular-price, eligible item in your cart.
Offer good for one item at regular price only. Limit one coupon per customer per day. Must present coupon at time of purchase. Offer is not valid with any other coupon, discount or previous purchase. One cut or one bolt of fabric or trim "by the yard" equals one item. Online fabric & trim discount is limited to 10 yards, single cut. Excludes Heidi Swapp™ Minc.™ Foil Applicator, CRICUT® products, Gemini Machine™ Crafters Companion, Silhouette CAMEO® Machine, candy & snack products, gum & mints, helium tanks, gift cards, custom orders, special orders, labor, rentals or class fees. Cash Value 1/10¢.
Make a statement with on-trend decor pieces.
The makings of holiday memories start here.
Fabric for your DIYs - stuffable and otherwise.
Unwrap happiness with papercrafted goodies.
Greet the season with foliage and flowers.
Everything for holiday baking and party making.
Get the supplies every artist is pining for.
Cozy on up to all sorts of needle art lovelies.
Put the finishing touches on Christmas.
Because handmade is what's in.
Time to match accessories to your personality.
When it comes to fashion, just roll the dice! This Rhodium Dice Charm with Crystals features a silver finish and clear crystal dots. The perfect way to commemorate special memories, this charm will make a sparkling addition to a handmade accessory creation.
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