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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 91-1864
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GREGORY VINCENT MITCHELL,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
(June 19, 1992)
Before HILL,* KING, and DAVIS, Circuit Judges.
PER CURIAM:
Gregory Vincent Mitchell appeals the sentence he received
after pleading guilty to a one-count superseding information
charging conspiracy to distribute and conspiracy to possess with
intent to distribute cocaine. Mitchell, a minor participant in
the conspiracy, contends that the court erred in (1) calculating
his base offense level in accordance with the amount of drugs
involved in the conspiracy as a whole; (2) failing to rule on the
Government's motion for downward departure at the time of
sentencing; (3) refusing to depart downward to compensate for the
* Senior Circuit Judge of the Eleventh Circuit, sitting by
designation.

Sentencing Guidelines' overrepresentation of the seriousness of
his criminal history; (4) refusing to depart downward on account
of his unusual personal characteristics; and (5) sentencing him
without a finding of guilt. We agree with Mitchell on points one
and two, and so vacate and remand for resentencing.
I. BACKGROUND
By superseding information, the Government charged Mitchell
and five other persons1 with conspiring to distribute more than
500 grams of cocaine between January 1987 and April 3, 1989. The
information did not specifically identify the amount any
individual defendant had allegedly conspired to distribute. In
the factual resume accompanying Mitchell's guilty plea, Mitchell
admitted to a conspiracy to distribute cocaine with other persons
in the Dallas area lasting from October 1988 to April 3, 1989.
The factual resume named as coconspirators Paul Weber, Jimmie
Charles Cook, Gustavo Gonzalo Giraldo-Lara and Aura Rey Giraldo.
Mitchell admitted to acquiring cocaine "on numerous occasions
from the coconspirators Cook and Weber" and in turn distributing
it to other persons.
The Presentence Report (PSR) filed in connection with
Mitchell's sentencing indicates that Weber obtained 20 kilograms
of cocaine in Florida on April 1, 1989. Weber sent Freddie Lynn
1 Aura Rey Giraldo, Freddie Lynn Sudduth, Victor Homero
Cordova, John Victor Denson, and Mallory M. Pierce. All five of
these persons, and Mitchell, were named in the original eighteen-
count indictment.
2

Sudduth and Debra Sudduth back to Dallas with the 20 kilograms,
and instructed them to contact Cook. The Sudduths were arrested
the next day when they made the delivery to Cook in Dallas, and
federal agents seized the cocaine. Meanwhile, on April 1, Cook
had alerted Weber's customers that a shipment of cocaine was to
arrive in Dallas shortly. Customers were to contact Cook by
paging Weber's beeper, and Cook would call them back to arrange a
meeting place. On April 2, all the persons named in the
superseding information, including Mitchell, contacted Cook to
arrange the purchase of various amounts of cocaine. Mitchell
requested of "a couple of ounces" of cocaine,2 but Cook told
Mitchell that he could not promise to hold any back. Mitchell
again asked Cook to hold some cocaine for him, and promised to
call the next day when he had the money. Mitchell was arrested
shortly thereafter.
At the plea hearing on August 25, 1989, the district judge
found that each defendant pleading guilty3 was doing so freely
and voluntarily, but he reserved acceptance of the pleas until
such time as he could review the PSRs. The PSR for Mitchell
originally arrived at an offense level of 32 and a criminal
history category of V, thus leading to a sentencing range of 188-
235 months imprisonment. United States Sentencing Guidelines
(U.S.S.G.) � 5A, Sentencing Table. The offense level was
2 One ounce equals approximately 26 grams.
3 Defendants Freddie Sudduth, Cordova, Denson, Pierce and
Mitchell pleaded guilty on that date.
3

calculated on the basis of the full 20 kilograms of cocaine
involved in the April 1 shipment. Under the drug quantity table
accompanying U.S.S.G. � 2D1.1, the base offense level was 34.4
The PSR recommended a two-level reduction for acceptance of
responsibility.
Mitchell objected to basing the offense level on the full 20
kilograms, arguing that it should have been based on the fact
that he pled guilty to an information charging conspiracy to
distribute more than 500 grams. He contended that the proper
base offense level was 26, the level which, under the version of
the drug quantity table in effect at the time of the offense,
covered 500 to 1,900 grams. Mitchell recognized that if the base
offense level were reduced to 26, his minor role in the offense
would have been acknowledged and he would not be entitled to a
downward adjustment for minor participant status. However, he
asserted, if the probation officer rejected a reduction and
continued to hold him accountable under the Guidelines for the
entire 20 kilograms, he was entitled to a four-level reduction
for minor participant status. Thus, factoring in the two-level
reduction for acceptance of responsibility under both scenarios,
4 Mitchell pled guilty to conspiracy, an offense covered by
U.S.S.G � 2D1.4, but that section provides that the offense level
for a conspiracy shall be the same as if the object of the
conspiracy had been completed. As the object of the conspiracy
was distribution and possession with intent to distribute,
sentencing was appropriate under � 2D1.1.
4

Mitchell contended that his total offense level should be either
24 or 28.5
The probation officer rejected a reduction of the base
offense level to 26, asserting that "DEA investigation shows the
amount to be distributed to co-offenders and codefendants to be
approximately 20 kilograms." Applying U.S.S.G. � 1B1.3 (Relevant
Conduct), he stated, Mitchell was to be sentenced for the entire
20 kilograms. The officer did grant the four-level downward
adjustment for minimal participant status, however, leaving the
final adjusted offense level at 28 (he did not disturb the
initial two-level reduction for acceptance of responsibility).
He rejected all of Mitchell's other objections. Combined with
his criminal history category of V, Mitchell's new sentencing
range was 130-162 months imprisonment.
At the sentencing hearing on December 15, 1989, the trial
judge accepted the PSR's calculation of the offense level. He
observed that, although all the evidence showed Mitchell's
involvement with the 20 kilogram shipment was limited to the two
ounces he ordered from Cook, Mitchell admitted to having made
small transactions with the coconspirators on other occasions.
Accordingly, he concluded, it was reasonably foreseeable that
Mitchell knew his distributors were dealing in amounts larger
than his individual purchases and larger even than 500 grams.
The judge expressed the view that the four-level downward
5 Mitchell also raised objections to the PSI's inclusion of
some of his earlier criminal episodes in calculating the criminal
history score. He has abandoned these objections on appeal.
5

adjustment for minor participant status sufficiently accounted
for the fact that Mitchell was involved with only a small portion
of the 20 kilogram shipment.
Mitchell moved for a downward departure on the grounds that
he had a difficult upbringing and alcohol problems, and that his
criminal history score of V overrepresented his criminal
background. The judge refused both requests. The Government
filed a motion under U.S.S.G. � 5K1.1 for downward departure on
account of Mitchell's substantial cooperation in the
investigation, but the judge, after conducting an off-the-record
bench conference with the attorneys, indicated that for
confidential reasons he would hold this motion open. The judge
sentenced Mitchell to the minimum of 130 months imprisonment,
followed by a five-year term of supervised release and a $50
special assessment. At no time during the sentencing proceeding,
however, did the judge formally accept the plea agreement or
Mitchell's guilty plea. A judgment finding Mitchell guilty was
entered on December 18, three days after the sentencing hearing.
Mitchell's motion for a new trial was denied, and this appeal
followed.
II. DISCUSSION
A. Offense Level Based on 20 Kilograms
Mitchell first argues that the district court erred in
accepting the PSR's recommendation that the sentence be based on
the 20 kilogram shipment obtained by Cook on April 1. He does
6

not suggest that he should be sentenced based on the two ounces
he sought to purchase from Cook; rather, he contends that the
proper quantity was the "amount greater than 500 grams" listed in
the superseding information. Thus, he again urges that the
proper base offense level was 26, so that with a two-level
reduction for acceptance of responsibility the sentencing range
would be 92-115 months.
The district court's findings about the quantity of drugs on
which a sentence should be based are factual findings which we
review for clear error. United States v. Rivera, 898 F.2d 442,
445 (5th Cir. 1990). A finding will not satisfy this deferential
standard "'when, although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.'"
Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)
(quoting United States v. United States Gypsum Co., 333 U.S. 364,
395 (1948)); see also United States v. Sanders, 942 F.2d 894, 897
(5th Cir. 1991) ("a factual finding is not clearly erroneous as
long as it is plausible in light of the record read as a whole").
The district court is not limited to considering the amount of
drugs seized or specified in the charging instrument, United
States v. Sarasti, 869 F.2d 805, 806 (5th Cir. 1989), but may
consider amounts that were part of a common plan or scheme to
distribute. United States v. Ponce, 917 F.2d 841, 844 (5th Cir.
1990) (per curiam), cert. denied, 111 S. Ct. 1398 (1991); United
States v. Byrd, 898 F.2d 450, 452 (5th Cir. 1990). The ultimate
7

sentence will be upheld so long as it results from a correct
application of the Guidelines to factual findings that are not
clearly erroneous. Rivera, 898 F.2d at 445; United States v.
Buenrostro, 868 F.2d 135, 136-37 (5th Cir. 1989), cert. denied,
495 U.S. 923 (1990).
The district court clearly was not limited to considering
the two ounces Mitchell sought to purchase or the "amount greater
than 500 grams" charged in the superseding information. On the
other hand, the court could not simply presume that Mitchell, to
whom the evidence did not link more than the two ounces, was a
participant in a conspiracy to distribute 20 kilograms of
cocaine. The Guidelines, of course, provide the starting point
for determining the appropriate quantity in this case. Mitchell
pled guilty to a conspiracy involving a controlled substance, so,
under � 2D1.4, he must be sentenced as if the object of the
conspiracy had been achieved. Thus, the offense level derives
from � 2D1.1(a)(3) (Drug Quantity Table). Where, as here, the
Guidelines specify more than one base offense level, the conduct
relevant to determining the offense level is governed by �
1B1.3(a). That section provides that the base offense level
shall be determined on the basis of, inter alia:
(1)
all acts and omissions committed or aided and abetted
by the defendant, or for which the defendant would be
otherwise accountable, that occurred during the
commission of the offense of conviction, in preparation
for that offense, or in the course of attempting to
avoid detection or responsibility for that offense, or
that otherwise were in furtherance of that offense;. .
. .
8

Application Note 1 to � 1B1.3 explains relevant conduct in the
case of a conspiracy:
In the case of criminal activity undertaken in concert with
others, whether or not charged as a conspiracy, the conduct
for which the defendant "would be otherwise accountable"
also includes conduct of others in furtherance of the
execution of the jointly-undertaken criminal activity that
was reasonably foreseeable by the defendant. Because a
count may be broadly worded and include the conduct of many
participants over a substantial period of time, the scope of
the jointly-undertaken criminal activity, and hence relevant
conduct, is not necessarily the same for every participant.
Where it is established that the conduct was neither within
the scope of the defendant's agreement, nor was reasonably
foreseeable in connection with the criminal activity the
defendant agreed to jointly undertake, such conduct is not
included in establishing the defendant's offense level under
this guideline.6
It is well established that district courts must consider the
extent to which a larger drug enterprise is reasonably
foreseeable to defendants involved in small or isolated
transactions. See, e.g., United States v. Mickens, 926 F.2d
1323, 1332 (2d Cir. 1991), cert. denied, 112 S. Ct. 940 (1992);
United States v. Edwards, 945 F.2d 1387, 1394 (7th Cir. 1991),
cert. denied, 112 S. Ct. 1590 (1992); United States v. North, 900
F.2d 131, 134 (8th Cir. 1990); cf. United States v. Miranda-
Ortiz, 926 F.2d 172, 178 (2d Cir.) (late-entering coconspirators
may be sentenced only on basis of amounts they reasonably could
have foreseen conspiracy distributed before they entered), cert.
denied, 112 S. Ct. 347 (1991); United States v. Matthews, 942
F.2d 779 (10th Cir. 1991) (same).
6 This language became effective with the November 1, 1989
amendments to the Guidelines. The language in effect at the time
Mitchell committed the offense was substantially similar. See
U.S.S.G. Guidelines Manual, Appendix C, amendment 78.
9

We have dealt with the foreseeability of a larger drug
operation on several occasions. In United States v. Warters, 885
F.2d 1266 (5th Cir. 1989), the defendant pled guilty to
misprision of a felony, admitting that he knew of a conspiracy to
possess with intent to distribute 20 pounds of marijuana. An
earlier indictment had charged the defendant and others with a
conspiracy involving more than 100 kilograms of marijuana. As
directed by the Guidelines, the PSR initially turned to the
guideline governing the underlying offense (conspiracy), which in
turn resulted in application of � 2D1.1(a)(3) (Drug Quantity
Table). The PSR calculated the base offense level according to a
conspiracy involving 500 pounds (about 227 kilograms). The PSR's
recitation of the facts indicated that the defendant was a key
player in the conspiracy. He and Hailey (a coconspirator) met
with the undercover DEA agent who was to supply 500 pounds of
marijuana, showed a portion of the money, and assisted in the
delivery arrangement. The defendant objected to use of the full
500 pounds, arguing that he had intended to purchase only 20
pounds from Hailey and distribute it, but the district court
accepted the PSR's recommended offense level. We remanded
because the district court did not resolve the disputed question
of quantity on the record. Id. at 1272. We pointed out that the
district court was required to make a finding of the amount the
defendant knew or should or have known or foreseen was involved.
Id. at 1273; see also United States v. Thompson, 944 F.2d 1331,
1343-44 (7th Cir. 1991) (district court must make a determination
10

of amounts that were reasonably foreseeable to defendants), cert.
denied, 112 S. Ct. 1177 (1992). However, we observed that the
record (presumably the factual scenario outlined in the PSR)
would support a finding that the defendant knew or should have
known of a conspiracy involving more than 100 kilograms.
Warters, 885 F.2d at 1273.
We also remanded in Rivera, a case very much like the
instant one, but we expressed the view there that the record
would not support a finding of reasonable foreseeability. Rivera
pled guilty to distributing .28 grams of heroin. As had several
other persons, Rivera purchased from a single large supplier
operating out of a house in Fort Worth. The factual resume
accompanying the guilty plea discussed the amounts other persons
had purchased from the supplier, but it mentioned Rivera only
once: the supplier had "made heroin available" to Rivera and
Rivera distributed a total of .37 grams to police officers on two
occasions. Only one other person was mentioned as having
obtained heroin on the same date as Rivera. 898 F.2d at 444.
Although the district court accepted the PSR's use of the total
amount of heroin in the indictment (224.47 grams) in reaching a
base offense level for Rivera, we held that the established facts
could not support a conclusion that Rivera conspired with other
persons to distribute heroin or knew or could have foreseen the
amount distributed from the house. Id. at 445. We thus remanded
to allow the district court to determine whether Rivera knew or
reasonably could have foreseen the extent of the operation. Id.
11

at 446. We distinguished Rivera in Ponce, holding that a
defendant who sold one ounce (approximately 26 grams) of cocaine
could be sentenced on the basis of the 231.3 grams implicated in
transactions involving Ponce's coconspirators. In Ponce, the
district court had made explicit findings (unlike in Rivera), and
those findings indicated that (1) Ponce was indicted for
conspiracy; (2) the cocaine sales documented by the PSR took
place in a restaurant allegedly owned by a coconspirator; and (3)
one of the sales took place with the aid of a coconspirator. 917
F.2d at 845-46. Although we considered the district court's
findings somewhat sparse, the record supported the court's
conclusion that Ponce could be sentenced based on the full amount
of cocaine.
In the case before us, the district court made what we
consider, following Ponce, a finding concerning the disputed
question of quantity. Thus, we do not face the purely mechanical
problem, as in Warters and Rivera, of a lack of any basis for
imputing the total amount of drugs involved in the conspiracy to
a lesser participant. The court stated at Mitchell's sentencing:
The delivery that took place that night, there was 20
kilograms transported from Florida to Dallas. It is
absolutely correct that [Mitchell] made a transaction
involving a small amount of cocaine. It's my understanding
that he also admits that he had done that on other occasions
with Mr. Weber or the other fellow whose name I've forgotten
now, who was much more involved. But I have rejected [other
defendants' challenges to using the 20 kilograms], as I will
this one.
I think that under the 5th Circuit case, when someone even
though they're buying smaller amounts concede that they have
been buying on a number of occasions, that it is certainly
reasonably foreseeable to realize that the person who's
12

distributing the cocaine is dealing in more than just 4 or 5
ounces of cocaine each time or 500 grams of cocaine.
As in Rivera, however, we cannot conclude that on the facts
established in the record the full extent of the conspiracy to
distribute 20 kilograms was reasonably foreseeable to Mitchell.
The Government asserts that "[i]t is apparent from the
evidence as a whole that the appellant knew the conspiracy was
distributing much more cocaine and involved many more people than
just himself and the cocaine which he was distributing." The
Government can only support this theory, however, by
extrapolating from the facts. First, the Government asserts that
because Mitchell knew a new shipment had arrived and because of
his "persistence" in attempting to obtain cocaine from Cook he
was aware of the amount involved in the conspiracy. The PSR
indicated, however, that Cook notified customers of the new
shipment and solicited their business. Moreover, it cannot be
inferred from Mitchell's persistence in attempting to purchase on
April 2 that he had entered into a wide-ranging conspiracy or
should have been aware of one. It merely signified his strong
desire to obtain cocaine, a desire that is consistent with the
history of drug problems outlined in the PSR. Second, and
somewhat more substantially, the Government points to the
statement in the PSR that Mitchell admitted introducing Weber to
other customers. This fact may be probative of Mitchell's
knowledge of the extent of the conspiracy. Cf. United States v.
Boyer, 931 F.2d 1201, 1205-06 (7th Cir.) (defendant who
introduced purchaser to supplier for purpose of three kilogram
13

purchase could foresee transaction of that amount, and so could
be sentenced on basis of three kilograms despite fact that actual
transaction involved one kilogram), cert. denied, 112 S. Ct. 209
(1991). But while it is reasonable to infer that Mitchell knew
Cook and Weber were dealing in amounts larger than a few ounces -
- particularly since Mitchell admitted to a conspiracy to
distribute over 500 grams -- it is quite a leap from one-half a
kilogram to 20 kilograms.
The Government also relies on the proposition that a
longtime relationship with suppliers indicates knowledge of the
scope of a drug distribution operation. We recognized that this
could be true in United States v. Devine, 934 F.2d 1325 (5th Cir.
1991), cert. denied, 112 S. Ct. 349, 911, 952 (1992), but in that
case the evidence clearly showed an association lasting several
years between the kingpin (Robinette) and the two lower-echelon
defendants who disputed their sentences (Barker and Martinez).
Martinez was Robinette's girlfriend, and had purchased several
expensive automobiles over the years with cash from an unknown
source. And both Barker and Martinez wore a necklace signifying
membership in the inner circle of the conspiracy. Id. at 1337.
On the basis of this evidence, we considered the case easily
distinguishable from Rivera and upheld sentences based on amounts
larger than Barker and Martinez distributed. Id. at 1338.
Here, by contrast, there is only the barest evidence that
Mitchell had a relationship Cook and Weber, and there is no
indication of the regularity of his purchases, the amounts he
14

purchased, or the length of time he had been associated with his
suppliers. Moreover, as in Rivera, there is no indication that
Mitchell was aware of the other members of the conspiracy or the
extent of their purchases. See North, 900 F.2d at 134 (where
defendant was unaware of amounts of other persons' purchases from
supplier, he could not be sentenced on basis of supplier's entire
distribution). Indeed, the district court stated that, of all
the persons charged, Mitchell was "down at the bottom because
there were people out buying seven kilos or five kilos." While
Mitchell may have purchased small amounts on several occasions,
nothing suggests that he was dealing in the range of 20
kilograms. Compare United States v. Thomas, No. 91-8581, slip
op. at 5071 (5th Cir. June 5, 1992) (evidence of drug trade
ledgers assigning defendant a code number and of substantial
cocaine purchases over period of time justified imputing
knowledge of larger conspiracy to defendant); United States v.
Sergio, 934 F.2d 875, 879 (7th Cir. 1991) (continuous involvement
with conspiracy raises inference that defendant was aware of and
involved in conspiracy to greater extent than isolated
transaction); United States v. Christopher, 923 F.2d 1545, 1555
(11th Cir. 1991) (sentencing court properly attributed large
quantity to defendant, where physical evidence seized in search
of home and testimony of witness connected him with large
quantity). On the evidence in this record, we are left with the
"definite and firm conviction" that it was a mistake to find the
full 20 kilogram conspiracy reasonably foreseeable to Mitchell.
15

Accordingly, we must remand for reconsideration of Mitchell's
sentence.
B. Refusal to Rule on the Government's Motion for Downward
Departure
The district judge, for reasons he decided not to place on
the record, withheld a ruling on the Government's motion under �
5K1.1 of the Guidelines for a downward departure. As of this
writing, the court has not yet ruled on the motion. Both
Mitchell and the Government agree that holding the motion open
until after sentencing was error, see United States v. Howard,
902 F.2d 894 (11th Cir. 1990), and we comply with their request
that we remand to enable the judge to rule on this motion.
As the court explained in Howard, � 5K1.1 operates at
sentencing, while Federal Rule of Criminal Procedure 35(b), under
which the Government may move to resentence a defendant to
reflect substantial assistance rendered after the original
sentence, operates after sentence has been imposed. Howard, 902
F.2d at 896. Under the version of Rule 35(b) in effect at the
time Howard was decided, a court could grant a reduction only
within one year after imposition of the sentence. We agree with
the Howard court's assessment that a refusal to rule on a � 5K1.1
motion would "conflict with this temporal framework." We also do
not find that the amendment to Rule 35(b) effective December 1,
1991 affects this analysis. The amendment allows a court to
consider a Government sentence reduction motion made more than
one year after imposition of sentence where the defendant's
substantial assistance involves information or evidence not known
16

by the defendant until more than one year after imposition of
sentence. In the usual case where no information or evidence
comes to light more than one year after imposition of sentence,
the conflict with the one year timetable discussed in Howard is
precisely the same.
The court in Howard also was concerned that postponing a �
5K1.1 ruling would vest the district court with discretion to
resentence that was taken away at the time the Sentencing
Guidelines took effect. Prior to November 1, 1987, a court could
resentence on its own motion following imposition of sentence.
Amendments to Rule 35(b) effective that same date removed that
discretion by permitting resentencing only on the Government's
motion. We agree with the Eleventh Circuit that "[p]ostponing a
section 5K1.1 motion returns that discretion to the court,
contrary to the dictates of Rule 35." Howard, 902 F.2d at 897.
Thus, the district court is required to rule on the Government's
� 5K1.1 motion before it imposes a sentence on Mitchell.
C. Additional Arguments
Although we remand for resentencing, in the interest of
judicial economy we briefly address Mitchell's remaining
contentions. Mitchell contends that the district court erred in
refusing to depart downward to reflect the facts of his history
of growing up in a troubled family (including an alcoholic
father, childhood abuse, and a mother who was hospitalized for
psychiatric disorders) and his longtime abuse of drugs and
alcohol. While Mitchell cites many cases in which courts have
17

upheld downward departures, he ignores precedent in this circuit
which holds that we "will not review a district court's refusal
to depart from the Guidelines, unless the refusal was in
violation of the law." United States v. Hatchett, 923 F.2d 369,
273 (5th Cir. 1991); see also United States v. McKnight, 953 F.2d
898, 906 (5th Cir.), cert. denied, --- S. Ct. --- (U.S. June 15,
1992).
In McKnight, we indicated that we have yet to resolve the
question whether "violation of the law" exists when a district
court refuses to depart on the erroneous understanding that the
guidelines do not permit downward departure, but found that the
court had not articulated this as its reason for refusing the
departure. We have the same situation here. After Mitchell's
attorney described Mitchell's troubled background, the district
judge stated:
I have not taken into consideration any of the social
factors that you have asked me to do so. I disagree with
you on that point. . . . One of my problems in taking all of
[these] social factors into consideration is I think you can
go too far with that argument, you wind up with judges
around the country giving different sentences for the same
crime, the exact thing that the guidelines tell us we're not
supposed to do any more.
As in McKnight, this statement indicates that the judge's refusal
to depart downward was based not on his view that the guidelines
precluded him from doing so as a matter of law, but because he
did not believe departure was warranted under the facts of this
case. Compare United States v. Sharpsteen, 913 F.2d 59, 63 (2d
Cir. 1990) (remand necessary because it was not clear whether
district judge recognized that he had authority to depart
18

downward on account of defendant's family ties and
responsibilities). Thus, we do not review the district court's
refusal to depart downward.
Mitchell also argues that the district court should have
departed downward because his criminal history category
overrepresented the seriousness of his criminal history.
Mitchell's challenge to the use of various offenses in
calculating the criminal history score has been abandoned on
appeal, and his argument is simply that the court should have
departed downward. Once again, however, the sentencing
transcript does not indicate that the court was under the
impression that the guidelines absolutely precluded downward
departure on this basis. Accordingly, we do not review the
court's refusal to depart downward. McKnight, 953 F.2d at 906.
Finally, Mitchell contends that the district court erred in
failing to formally accept his guilty plea before imposing the
sentence. The court's judgment finding Mitchell guilty was
entered December 18, 1989, three days after sentencing. While we
agree that it is preferable for judges to announce their
acceptances of guilty pleas in open court prior to sentencing,
any error that occurred here was harmless. The judge made an
explicit finding at the plea hearing that Mitchell was pleading
guilty freely and voluntarily, so the delay of three days between
imposition of sentence and the formal finding of guilt deprived
Mitchell of no constitutional or statutory right. Moreover, the
transcript of the sentencing proceedings indicates that all
19

parties understood that the judge had found Mitchell guilty and
accepted the plea agreement.
III. CONCLUSION
Mitchell must be resentenced to reflect the unforeseeability
to him of the extent of the conspiracy, and the district judge
must rule on the Government's � 5K1.1 motion prior to imposing
the sentence. For these reasons, Mitchell's sentence is VACATED
and REMANDED for further proceedings consistent with this
opinion.
20