Dеfendant-Appellant Luis Santiago pleaded guilty before the District Court for the District of Connecticut (Alvin W. Thompson, Judge) on April 10, 2002 to one count of conspiracy to distribute and to possess with intent to distribute 500 grams or more of cocaine from August to December 2001 in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(l)(B)(ii), and 846. The base offense level applicable to Santiago under section 2Dl.l(c) of the United States Sentencing Guidelines was 26. After conducting multiple sentencing hearings, the District Court applied (i) a two-level enhancement for Santiago’s possession of firearms in connection with the drug conspiracy, see U.S.S.G. § 2Dl.l(b)(l), (ii) another two-level enhancement to reflect Santiago’s role in the offense, see § 3Bl.l(c), and (iii) a three-level reduction for Santiago’s acceptance of responsibility, see § 3E1.1. As a result, Santiago’s ádjust-ed offense, level was 27 and, at criminal history category II, the applicable Guidelines range would have been 78 to 97 months’ imprisonment. Finding that Santiago had used a firearm, to shoot and injure Juan (“Papito”) Arroyo in the commission of the conspiracy, the District Court, over Santiago’s objection, granted the government’s motion for an upward departure under section 5K2.6 of the Guidelines. The court determined that the circumstances warranted, a three-level departure and increased Santiago’s offense level to 30, with an applicable Guidelines range of 108 to 135 months’ imрrisonment. On May 27, 2003, after reconsidering arguments from the parties about the appropriateness of the departure, the court reaffirmed its determination that a three-level upward departure was appropriate and sentenced Santiago to 108 months’ imprisonment, five years’ supervised release, and a $100 special аssessment.
*33 On appeal, Santiago raises two principal challenges to his sentence. First, he asserts that the District Court improperly applied the weapons enhancement under section 2Dl.l(b)(l) of the Guidelines. In addition, he argues that the District Court’s upward departure, pursuant to section 5K2.6, was inappropriate and that the threе-level extent of that departure was unwarranted. In connection with his challenge to the departure, Santiago argues — and the government agrees — that we must remand the case to the District Court because it failed to comply with the requirement outlined in 18 . U.S.C. § 3553(c) (as newly amended by the Prose-cutorial . Remedies and Tools Against the Exploitаtion of Children Today Act of 2003, Pub.L. No. 108-21, 117 Stat. 650 (2003) (“PROTECT Act”)) that .a district court must state in writing in the judgment the specific reasons for any departure from the guidelines. 1
DISCUSSION
I. The Section 2Dl.l(b)(l) Weapon Enhancement
We review the District Court’s “interpretation and application of the [Sentencing] Guidelines
de novo,
and its findings of related fact for clear error.”
United States v. Smith,
Section 2Dl.l(b)(l) of the Sentencing Guidelines prescribes a two-level increase in a defendant’s offense level “[i]f a dangerous weapon (including a firearm) was possessed” in the course of a narcotics conspiracy. Application' note 3 to the guideline clarifies that this enhancement “should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” The parties do not dispute that, for the enhancement to apply, the government had to establish that Santiago’s possession of a gun was “relevant” to his conspiracy conviction.
United States v. Ortega,
The District Court rested its application of this enhancement to Santiago on two grounds: (i) specific evidence that “Mr. Santiago used a gun- to shoot Mr. Arroyo” primarily because “Mr. Arroyo planned to rob the location at which Mr. Santiago had kept money from his drug-trafficking activity”; and (ii) more general testimony that “the defendant kept guns and cocaine in' the same dwelling unit.”
The recordings of Santiago’s phone calls prior to and following the shooting of Ar *34 royo make clear that, as the District Court recognized, Santiago’s concern for his family was a “strong motivating factor” in the shooting. Nevertheless, the District Court, relying on both the phone call recordings and testimony from Angel Gonzalez, Santiago’s neighbor and sometime employee, determined that the “dominant factor” that drove Santiago to shoot Arroyo was his need to protect the location where he had been storing drug proceeds and, in so doing, to maintain or enhance his reputation in the drug business. The court cited evidence that Santiago had been robbed several times and was concerned that these prior robberies made him look weak.
The District Court also premised its application of the enhancement on Gоnzalez’s testimony that Santiago “kept guns and cocaine in the same dwelling unit.” According to Santiago, there was no “nexus between those guns and Santiago’s drug activity” because there was no proof that the guns and drugs were at Santiago’s residence simultaneously. This argument is unavailing because it ignores the fact that Gonzalez’s testimony — which was not rebutted — was that Santiago possessed the firearms to protect his drug-related activities. In any event, this Court has upheld the two-level increase levied by § 2Dl.l(b)(l) where a weapon was kept in the same place as the drugs, even if the weapon was not necessarily “possessed during commission of the offense.”
United States v. Sweet, 25
F.3d 160, 163 (2d Cir.1994);
see also United States v. Wilson,
The District Court’s findings that Santiago рossessed firearms in the course of and in connection with his participation in the narcotics conspiracy are amply supported by the record and, as such, we affirm the application of the two-level enhancement under section 2D1.1(b)(1).
II. The Section 5K2.6 Upward Departure
The District Court granted the government’s motion for an upward departure under sectiоn 5K2.6 of the Sentencing Guidelines because it concluded that the two level increase imposed under section 2Dl.l(b)(l) did not “adequately account for [Santiago’s] use of the firearm in this case.” Under section 5K2.6:
If a weapon or dangerous instrumentality was used or possessed in the commission of the offense the court may increase the sеntence above the authorized guideline range. The extent of the increase ordinarily should depend on the dangérousness of the weapon, the manner in which it was used, and the extent to which its use endangered others. The discharge of a firearm might warrant a substantial sentence increase.
A. The District Court’s Decision to Depart
Santiago argued below (and reiterates on appeal) that there was not a sufficient connection between the shooting of Arroyo and Santiago’s participation in the charged narcotics conspiracy (to which he pleaded guilty) to warrant an upward departure under section 5K2.6. For the reasons set forth supra in Part I, the District Court found that Santiago’s shooting of Arroyo occurred in connection with the narcotics conspiracy.
Santiago also argued that the imposition of the section 5K2.6 departure was improper under our decision in
United States v. Kim,
Finаlly, the District Court justified the extent of the departure by noting, first, that section 5K2.6 clearly states that “[t]he discharge of a firearm might warrant a substantial sentence increase.” In order to determine what a “substantial increase might be,” the court referred to other relevant guidelines that address the use and discharge of firearms — e.g., the aggravated assault guideline, U.S.S.G. § 2A2.2, the robbery guideline, § '2B3.1, and the extortionate extension of credit guideline, § 2E2.1 — and carefully reviewed the aggravating facts of Santiago’s case.
B. The Written Statement of Reasons Requirement
Under 18 U.S.C. § 3742(e), as amended by § 401(d) of the PROTECT Act, we review
de novo
“whether a departure is justified by the facts of the ease.”
United States v. Huerta,
Section 3742(e) also directs us to determine whether the District Court provided the requisite written statement of reasons for imposing an upward departure. See 18 U.S.C. § 3742(e)(3)(A) (outlining procedures for appellate review of departures); see also 18 U.S.C. § 3553(c)(2) (providing that the sentencing court “shall state in open cоurt the reasons for its imposition of the particular sentence” and, if the court departs from the applicable Guideline range, it must state “the specific reason for the imposition of a sentence different from that described, which reasons must also be stated with specificity in the written order of judgment and commitment”). In this case, althоugh the District Court did, in keeping with the requirements in place prior to the passage of the PRO-. TECT Act, provide a thorough, on-the-record enumeration of the reasons for its upward departure, see 18, U.S.C. § 3553(c)(2) (2002), it did not reduce that statement of reasons to writing in the judgment entered May 30, 2003.
Both the defendant and the government argue that, in light of this oversight, we must remand the сase to the District Court. According to the government, a remand is required under 18 U.S.C. § 3742(f)(1), which states that if we determine that a defendant’s sentence was “imposed in violation of law,” we “shall remand the case for further sentencing proceedings” with appropriate instructions. In the government’s view, by failing to comply with the written statement of reasons requirement set forth in 18 U.S.C. § 3553(c)(2), the District Court imposed Santiago’s sentence “in violation of law.” This argument draws some support from our pre-PROTECT Act caselaw regarding a district court’s obligation to give' an adequate
oral
statement of reasons.
See, e.g., United States v. Gonzalez,
In an October 2003 report to Congress, the United States Sentencing Commission appears, without explanation, to have adopted the government’s reading:
The appellate court shall set aside the sentence and remand the case with specific instructions if it finds that the district court failed to provide the required statement of reasons in the judgment and commitment order, the departure is based on an impermissible factor, or is to an unreasonable degree, or the sentence was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.
U.S. SENTENCING COMM’N, DOWNWARD DEPARTURES FROM THE FEDERAL SENTENCING GUIDELINES 9, 57 (2003). Under
Chevron, U.S.A. v. Natural Res. Def. Council, Inc.,
The deference question is complicated, however, by the fact that the Sentencing Commission’s interpretation sеems to ignore the very specific and clear language that follows in subsection (f)(2). As amended by the PROTECT Act, that section provides a guide for courts of appeals to follow in determining whether and when to vacate and remand in departure cases. Under § 3742(f)(2), if a court of appeals determines that “the sentence is outside the applicable guideline range” (as is true where a district court has departed upwardly or downwardly) “and the district court failed to provide the required statement of reasons in the order of judgment and commitment,” the court of appeals “shall state specific reasons for its conclusions and”:
(A) if it determines that the sentence is too high and the appeal has been filed under subsection (a), it shall set aside the sentence and remand the case for further sentencing proceedings with such instructions as the court considers appropriate, subject to subsection (g); (B) if it determines that the sentence is too low and the appeal has been filed under subsection (b), it shall set aside the sentence and remand the case for further sentencing proсeedings with such instructions as the court considers appropriate, subject to subsection (g);
18 U.S.C. § 3742(f)(2) (emphasis added). Under subsection (f)(2), then, it seems clear that if we ultimately decide that a sentence is neither “too high” (subsection
*37
(A)) nor “too low” (subsection (B)), we do not have any obligation to remand.
See also
18 U.S.C. § 3742(f)(3) (providing that if the court of appeals detеrmines that the sentence is not described in subsections (f)(1) or (f)(2), “it shall affirm the sentence”). At least two other circuits have adopted this reading of the statute, taking the position that a remand is unnecessary where, as here, the District Court clearly stated the reasons for its departure from the Guidelines on the record (but did not supply a
written
statement of reasons in the judgment).
See, e.g., United States v. Day child,
If we read subsection (f)(1) in the manner suggested by the government — such that a district court’s failure to provide a written statement of reasons qualifies as a violation of law that automatically requires a remand — the reference to the written statement of reasons in subsection (f)(2) becomes entirely superfluous. Such a reading “violat[еs] a basic tenet of statutory interpretation” and should be disfavored.
DeMaria v. Andersen,
We decline to resolve this problematic question of statutory interpretation on this appeal and, instead, exercise our discretion to remand the case to the District Court for the very limited purpose of amending the written judgment and conviction order to set forth in writing its reasons for granting the section 5K2.6 upward departure. As we have done in the past, we remand without vacatur in order to allow for amendment of the written judgment.
See, e.g., United States v. AAbras Inc.,
This panel retains jurisdiction to hear Santiago’s challenge to the departure once the record has been supplemented.
See United States v. Jacobson,
All of the foregoing is subject to the Supreme Court’s decision in United States v. Booker, No. 04-104 (U.S. cert. granted Aug. 2, 2004) (mem.), and United States v. Fanfan, No. 04-105 (U.S. cert. granted Aug. 2, 2004) (mem.).
*38 CONCLUSION
For thе reasons stated above, this case is affirmed in part and remanded in part for further proceedings consistent with this opinion.
Notes
. By letter submitted to the Court on June 25, 2004, Santiago also raises a Sixth Amendment challenge to his sentence based on the Supreme Court’s recent decision in
Blakely v. Washington,
- U.S. -,
. Of course, it is worth noting that the difference between giving no statement of reasons at all, as was the case in Gonzalez and Zack-son, and reciting the reasons orally on the transcript of record, as here, is significant. The former is a serious defect preventing meaningful appellate review, while the latter clearly is not.