USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________

No. 96-2042

UNITED STATES OF AMERICA,

Appellee,

v.

ALINA PEREZ,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Aldrich, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

____________________

Lenore Glaser with whom

_____________
brief for appellant.

Stern, Shapiro, Weissberg & Garin was

_________________________________

Michael J. Pelgro,
__________________

Assistant United

States Attorney,

with w

Donald K. Stern, United States Attorney, was on brief for appellee.

_______________

____________________

January 23, 1998

____________________

ALDRICH, Senior Circuit Judge.

Defendant-appellant

____________________

Alina

Perez,

convicted

with

of

federal

record

of

controlled

prior

offenses

and

substance

offenses, was sentenced as a career offender under

the United States Sentencing Guidelines.

state

substance

controlled

She had asked for a

downward departure, and appealed its denial.

We remanded for

clarification, and she is now here again, no better off.

Perez's indictment

in the

District of Massachusetts was

distribute

heroin

and

distribution of heroin

violation

of 21

She pled guilty to

four

District Court

on one count of

counts

of

in furtherance of the

U.S.C.

846 and

conspiracy to

possession

and

conspiracy, in

841(a)(1), respectively.

the conspiracy charge and

distribution charges,

for the

and nolo contendre to

_______________

to two of

the

the other

two

distribution

substance

charges.

felony

definition of

offender

Because of two prior state controlled

convictions, she

U.S.S.G.

status

meant

met the

4B1.1 (1995).

an initial

career offender

Achieving

total

offense

career

level of

thirty two, an automatic criminal history category of VI, the

highest, and a

guideline sentencing range of

151-188 months

after a three point offense level reduction for acceptance of

responsibility.

At

dispute the

provision,

her

first sentencing

literal

but

hearing,

applicability of

contended

that she

-2-

the

was

Perez

career

did not

offender

"small player,"

outside

the heartland of career offender drug cases, because

the amounts of

drugs involved in her offenses,

in

been

them,

had

small.

downward departure under

appeal, we remanded

in

She

and her role

accordingly

requested a

4A1.3,1 but the court refused.

for clarification of the

light of United States v.

_____________

On

court's basis,

Lindia, 82 F.3d 1154 (1st Cir.

______

1996), which we had recently decided.

At resentencing Perez

again requested

departure under

4A1.3.

In response

court acknowledged Lindia, but stated that

______

permissible considerations, or

of predicates was

the

it was limited to

"factors," and that smallness

an impermissible consideration.

In light

of Congressional mandate, whether she was a small player

was

____________________

1.

Adequacy of Criminal History Category (Policy Statement)

_____________________________________

. . . . .

There

may

be

concludes
history

that

cases
a

category

where

the

defendant's

court

criminal

significantly

represents

the

seriousness

defendant's

criminal

history

overof
or

a
the

likelihood that the defendant will commit

further crimes.

An example might include

the case of

a defendant

with two

misdemeanor

convictions

close

minor
to

ten

years prior to the instant offense and no

other evidence of prior criminal behavior
in the intervening period.
conclude
history

that
was

the

The court may

defendant's criminal

significantly

less serious

than that of most defendants

criminal history category
and

therefore

consider

in the same

(Category II),
a

departure from the guidelines.

-3-

downward

"forbidden factor,"

departure.

beyond consideration

for a

downward

We quote.

statute,

mandates

that

28

U.S.C.

"career

994(h),

offender"

as

defined in the statute receive a sentence

at or near
See
___

the maximum term

4B1.1, Background.

authorized.

The definition

of controlled substance offense specifies

the

minimum

qualifies

severity
of

offense

that

the two

offenses,

are needed

to invoke

the Career Offender provision.

Thus, the

that,

as one

of

at minimum,

congressional mandate
the

medium-level

offense as the
whether a

controlled

substance

a Career

minimum level

is sufficient to qualify
Career

speak of

heartland for determining

person is

Instead, the

does not

Offender

test

Offender.

offense that

for meeting the

is

within

the

heartland, by statutory mandate.

The court added, as to which there is no complaint,

that it would have granted

to do so.

a departure had it had discretion

It did, however, once the sentence range

calculated

had been

without that departure, take the lowest permitted

as the final figure on the ground of Perez's relatively small

role in the offenses.

if an open

Whether,

We have two questions:

(1)

matter, the court's construction was

in light of

Lindia, it was
______

open.

Whether,

sound.

(2)

We answer both

questions in the affirmative.

This

from

court will not

to depart

the federal Sentencing Guidelines unless the sentencing

court abused its discretion.

S.

overturn a refusal

Ct.

2035,

consideration

2043

(1996).

of a given

See Koon v. United States, 116

___ ____
_____________

At

the

same

time,

factor is impermissible

whether

under any

-4-

circumstances is a question of law, and we need not defer

to

the district court's resolution.

We start with 28 U.S.C.

994(h), that requires the

Sentencing Commission to "assure" that the Guidelines produce

sentences for

are "at

certain three-time

or near

the maximum

("career") offenders

term authorized" by

that

statute.2

The Court,

recognizing Congress's

maximum intent,

____________________

2.

The

Commission

shall

guidelines specify
of imprisonment
term

in

that

a sentence to

at or

authorized

defendants

assure

near the

for

which

a term
maximum

categories
the

defendant

eighteen years old or older and--

(1)

has

been convicted

of

felony that is--

(A)

crime

of

violence; or

(B)

an

offense

described

in

section 401

of the

C o n t r o l l e d
Substances
U.S.C.

Act (21
841)

. . . ; and

(2)

has

previously

the

been

of
as

has held

convicted of two

or more prior

felonies, each of which is--

(A)

crime

of

violence; or

(B)

an

offense

described

in

section 401

of the

C o n t r o l l e d
Substances
U.S.C.

Act (21
841)

. . . .

-5-

this to

be the

term reached after

statutory enhancements.

1673 (1997) (6-3),

1396

(1st

Cir.

994(h) with

for career

"offense

applying any

applicable

United States v. LaBonte, 117 S. Ct.

_____________
_______

rev'g United States

_____ _____________

1996) (2-1).

The

v. LaBonte, 70
_______

F.3d

Commission implemented

Guidelines

4B1.1,3

that computes

sentences

offenders based

on the

identical but

re-termed

statutory

maximum."

In

our

LaBonte
_______

decision,

finding broad discretion in the Commission, we upheld a prior

version

statutory

maximum."

of

4B1.1's

enhancements

Application

from

Then, between our

held, broadly,

Note

the words

"offense

decision and its

in United States
______________

that

v. Lindia,
______

excluded

statutory

reversal, we

82 F.3d

1154,

1164-65 (1st Cir. 1996), that a district court might consider

a career

offender's criminal history "unusual,"

the "heartland" of

4A1.3

career offender cases,

allowed downward departure.

We

and outside

and, if so,

made no

that

review or

analysis of the type of criminal history involved, but simply

noted that this

departure turned on whether

treatment inaccurately reflected

career offender

criminal history within the

____________________

3.

U.S.S.G.

4B1.1 provides that

a defendant is

a career

offender if (1) the defendant was at least eighteen years old

at the time

of the instant offense, (2)

the instant offense

of conviction is a felony that is either a crime

or a controlled

of violence

substance offense, and (3) the defendant has

at least

two prior felony

convictions of either a

crime of

violence or a controlled substance offense.

-6-

meaning of 18 U.S.C.

career

3553(b),4

offender defendant's

adequately

considered by the

id. at 1165, viz., whether

___

particular history

Commission in

had been

formulating the

Guidelines.

We note, by

way of initial observation,

at least,

something of

a puzzlement:

stricture "at

or near,"

purpose of maximum

offenders,

id.
___

how to

light of the

Congressional

reconcile Congress's

sentences for three-time violent

at

1164,

downward departures by

that mean

in

that "at or

with

allowing

clear

or drug

adjustments5

4A1.3 which might be sizeable?

near" should be broadly

18 U.S.C.

3553(b) provides, in relevant part:

(b) Application of guidelines in imposing

a sentence. -sentence
range,

of

The court shall

the

[provided

kind,
by

impose a

and within
the

Does

some type or types of

____________________

4.

Does

construed to

permit substantial reductions when they are applicable?

it suggest possible non-recognition of

or

the

guidelines]

unless the court

finds that there exists

an aggravating or mitigating circumstance

of a kind, or to a degree, not adequately
taken

into

consideration

Sentencing Commission in
guidelines

that

should

by

the

formulating the
result

in

sentence different from that described.

5.

The

Guidelines

3E1.1 (acceptance

specifically

authorize

of responsibility) to

application

of

career offenders.

Whether

3B1.2 (mitigating role in instant offense) also may

apply is

unsettled.

F.3d

1156, 1160 (8th

Diaz, 925 F.2d

____
v. Williams, 37
________

Compare
_______

United States v.
_____________

Beltran, 122
_______

Cir. 1997); United States v. Morales______________

________

535, 540 (1st Cir. 1991);

with United States

____ _____________

F.3d 82, 84 (2d Cir. 1994); United States v.

_____________

Alvarez, 914 F.2d 213, 214-15 (10th Cir. 1990).

_______

-7-

adjustments or departures

We find

no pertinent

applicable to ordinary defendants?

legislative history.

In

LaBonte the
_______

Court remarked, "This statutory phrase unquestionably permits

certain

degree

of flexibility

departures and adjustments."

for

upward

and downward

117 S. Ct. at 1678.

The word

"certain" was not defined.

Since adjustments and departures could well achieve

substantial reduction from the maximum authorized term, it

is not surprising that

wide variations have developed

as to

what is perceived to be within "at or near" and, accordingly,

the degree

LaBonte
_______

of flexibility

allowed to the

decision alone the

some "play in the joints,"

courts.6

In our

majority, stating there

must be

accepted a sentence 61.4% of what

it thought the applicable statutory maximum, 70 F.3d at 1409-

10,

while

the dissenter

thought

even 72.8%

would

not be

____________________

6.
Cir.

See United States v. Novey,

___ _____________
_____
1996) (noting

maximum was "near"

S. Ct. 2407
683

n. 5

that

78 F.3d 1483, 1487 n.5 (10th

a sentence

91%

but that 73% was not),

of the

cert. denied, 117

____________

(1997); United States v. Moralez,

_____________
_______
(7th

Cir.) (noting

that

statutory

964 F.2d 677,

a sentence

83%

of the

statutory maximum "may well be short of being 'at or near the

maximum

term

authorized'"),

cert. denied,
_____________

(1992); see generally United States

_____________ _____________

506

U.S.

903

v. Branham, 97 F.3d 835,

_______

846-47 (6th Cir. 1996); United States v. Hernandez, 79

______________
_________

F.3d

584, 598-99

(7th Cir. 1996),

(1997); United States v.

_____________
Cir.

cert. denied, 117 S.

____________

Fountain, 83 F.3d 946, 952-53

________

1996), cert. denied, 117

_____________

States
______

v.

denied,
______

Gardner, 18
_______

F.3d

S. Ct.
1200, 1202

2412 (1997);
(5th

(8th
United
______

Cir.), cert.
_____

513 U.S. 879 (1994); United States v. Norflett, 922

______________
________

F.2d 50, 53 n. 4 (1st Cir. 1990); United States v.

_____________
F.2d

Ct. 2407

515,

520-21

cert. denied,
____________

(6th Cir.)

498 U.S. 958

(Merritt,

C.J., dissenting),

(1990); United States

_____________

873 F.2d 495, 498 (1st Cir. 1989).

-8-

Hays, 899
____

v. Alves,
_____

"near."

Id.
___

at 1418.

In the

present case

the district

court, supra, even while excluding smallness of predicates as

_____

a ground for

departure, ended by imposing a

the

authorized

maximum

accepting

by

responsibility.7

downward because of

indicated that

giving

Had

sentence 63% of

Perez

the

been

free

it

benefit

reveals

it would

extended

picture

depart

the smallness of the offenses, the court

have sentenced Perez

to a

months (9%), within the range applicable without

This

to

of

recital, if

that supports

the

it does

mere 21

4B1.1.

nothing else,

conclusion

that the

Commission, commanded to "assure" that the Guidelines produce

near maximum sentences

for the statutorily

defined category

of recidivists, did not

want to leave open

departure from the statutory figure

offenses.

We

believe

it

based

based on the size of the

made this

single, broad definition of "felony."8

single

to the courts

clear

by adopting

Second,

it adopted a

criminal history category rather than a sliding scale

on

the seriousness

of

the past

offenses.

Compare
_______

____________________

7.

The

applicable

months).
range

statutory

maximum

was

20

years

(240

Under the Guidelines, Perez's applicable sentencing

initially was

210-262

months.

Crediting

her

for

accepting responsibility brought her applicable range to 151188 months.

low end,

The court then, within its discretion, chose the

151 months, 63%

of 240 months, for

the recognized

small role in the offenses.

8.

We

large

note that "felony" for

and small offenses.

See
___

4B1.1 purposes includes both

4B1.2, Commentary (defining

felony as an "offense punishable by death or imprisonment for

a term exceeding one year.").

-9-

4B1.1 (assigning

career

criminal history

offender "case"),

with
____

Sentencing Table (determining

non-career offenders

history

points).

category VI

4A1.1 and

Ch.

to "every"

5, pt.

criminal history category

by the number

of accumulated

With such deliberate

A,

for

criminal

uniformity, how is a

court suddenly

degrees

terms

to determine, at

of seriousness

for one

had

group?

in

what basis?9

For

best answer to

possible

offenses, we would have a

special,

substantially

ordinary

curve

Here there is no curve at all.

defendant's claim lies

from the career offender category entirely.

was

special

point scale, the

the district court's proffered alternative:

departure

all other

treated equally,

is a sliding

may be thought to continue.

Perhaps the

been

And on

offenders, where there

the low end when

based

on

the

removing her

Thus if downward

smallness

of

the

provision -- whose sole purpose is

increased

sentences

for

repeat

offenders that meet a specific description -- completely read

out

of

the

Guidelines

by

judicial

finding

that

the

Commission

said

it

could not really have intended to include what it

did.

departures.

offenses

This

Rather,

meet the

cannot be

we

hold

the

that

statutory career

purpose

every

of

downward

offender

whose

offender definition

is

____________________

9.

To put this in mathematical terms, suppose a

seriousness of the

offense at 1-20.

determine that number

had not thought

On what

court rates
basis can

it

1 was unusual, and that the Commission

of it, and that

if it had thought

not have applied the even treatment it gave 2-20?

-10-

it would

within

only

the intended

for

heartland, and

those personally,

offenses,

demonstrating

and

departure is

not

an

by

absence

available

the size

of

of

the

recidivist

tendencies.10

This conclusion accords with the statutory purpose.

To speak

the

obvious,

the unique

offender provision is its focus

feature

of

on recidivism.

the

career

To return to

Labonte, 117 S. Ct. at 1677, "Congress has expressly provided

_______

enhanced maximum penalties

offenders in an effort to

offenders."

for certain categories of

repeat

treat them more harshly than other

Congress itself defined

the felonious

conduct

whose

repetition,

reflecting

habituality

and/or

____________________

10.

We have no quarrel with

downward departures
literal

the principle that there may be

because of

career offender cases

recidivism.

individual circumstances
that indicate the

Cf. United States v. Collins,

___ ______________
_______

in

absence of

122 F.3d

1297,

1306-07 (10th Cir. 1997) (age and infirmity of defendant, and

fact that

one predicate

conviction was

close to

prior to the instant offense); United States

_____________
F.3d 553,

557 (6th

extraordinary

Cir. 1994)

family

the

predicates, the time intervening between the

his attempts to deal with drug
States
______

v.

Shoupe,
______

(defendant's
temporal

age

988

and

proximity of

occurred nearly fifteen

United States v.
______________
(exposure

to

domestic

"significantly
commit his first

affected

defendant's
age

of

his

predicates, and

and alcohol problems); United

______

F.2d

440,

immaturity

at

447

(3d

time

of

predicates, and fact

years before

Clark, 8
_____

v. Fletcher, 15
________

(combination of

responsibilities,

ten years

1993)

predicates,

that predicates

the instant

offense);

845 (D.C.

Cir. 1993)

F.3d 839,

violence

Cir.

and

[defendant's]

childhood abuse
predisposition

two crimes"); United States

_____________

that
to

v. Bowser, 941
______

F.2d 1019, 1024-25 (10th Cir. 1991) (defendant's young age at

the

time of his predicates, close

predicates,

and

concurrently for
916 F.2d 553,

fact

that

temporal proximity of the

defendant

had

been

punished

the predicates); United States v. Lawrence,

_____________
________

554 (9th Cir. 1990)

(psychiatrist's testimony

that likelihood of recidivism was low).

-11-

incorrigibility, demands stiff punishment.

When, in another

circumstance, the

maximum, and

we

Here we do

not

Commission took

approved it in LaBonte, the

_______

a lower

Court reversed.

think that the Commission even intended differentiation to be

possible.

It is true

that some courts have, in part, allowed

consideration of the "minor nature" of the past offenses, but

none

has

adequately

established

connection

with

recidivism.11

There remains the question whether it is open to us

to

make this

Koon,
____

a non-career

relates

Koon
____

decision.

not

are not

offender case, whose

to matters not

does

Clearly we

advise

general discussion

fully considered by

us

as to

what

foreclosed by

the Commission.

factors

meet

that

definition in a career offender

case.

We are more concerned

with our decision in Lindia, 82

F.3d at 1165, where we said,

______

speaking generally,

that

a sentencing

court

might

depart

downward on the basis of a career offender's criminal history

if it considered it "unusual":

When faced with a

departure motion in

career-offender case, as
the

court's

the

case

guideline's

in other cases,

experience

perspective will
before

allow it
it falls

"heartland,"

and

unique

to decide

if

outside

the

warranting

departure.

____________________

11.

See United States v.

___ _____________

Cir. 1994); United States v.

_____________

Spencer, 25 F.3d 1105, 1113 (D.C.

_______
Smith, 909 F.2d 1164, 1169 (8th
_____

Cir. 1990), cert. denied, 498 U.S. 1032 (1991).

____________

-12-

We believe our decision in Lindia did not rule it was open to

______

court to

find

offender's case

unusual, or

holding that some

considered

by

smallness

of offenses

go so far

to

as to

parts of criminal history

the Commission.

unpublished memorandum order

If

it

make a

career

foreclose our

have been fully

be felt

on remand here12 could

that

our

be read

as saying the opposite, it is not the law of the case, and we

may reconsider.

Affirmed.
________

- Dissenting opinion follows -

____________________

12.

In

view

of

clarifying that
invoke
the

recent

a sentencing

4A1.3 to

career

our

court "may

depart downward

offender

concludes that the

opinion

category

from
if

it

category inaccurately

reflects the defendant's

actual criminal

history,"

v. Lindia,
______

United States
_____________

95-2200, slip

op. at 21 (1st

18, 1996), together

whether

the

district

viewed

court

sentence

and

-13-

as

more

allows, we vacate

remand

consideration.

made

to depart or,

its authority

restricted than Lindia

______
the

Cir. April

with our uncertainty

discretionary decision not

instead,

No.

for

further

LYNCH, Circuit Judge, dissenting.

LYNCH, Circuit Judge, dissenting.
_____________

With respect for

the views of my colleagues, I am compelled to dissent.

mind, the

and

majority opinion misreads the

In my

controlling statute

the United States Sentencing Guidelines, and is contrary

to the

precedent of the

decisions

of each

considered

the issue.

Lindia, 82 F.3d
______

case, as does

States,
______

of the

116

Supreme Court, this court,

other circuit

Our

holding

1154 (1st Cir. 1996)

courts which

in United States
______________

2035

(1996), and

have

v.

directly controls this

the Supreme Court's holding in

S. Ct.

and the

those

Koon v. United
____
______

cases require

reversal.

The

sole issue to be decided is whether departures

under

U.S.S.G.

4A1.3

defendants classified

are

categorically prohibited

as career offenders

for

under U.S.S.G.

4B1.1 when the defendant's prior criminal record may over- or

understate the seriousness

of the offenses and

the district

court could find that this defendant was not in the heartland

of career

offenders.13

The district

court concluded

that

____________________

13.

The

career

offender provisions

prior convictions.
role in

for $60
guilty to

to an

triggered by

two

The quantities of drugs and Alina Perez's

the prior offenses

the district court.

are

are documented in the

Ms. Perez, a heroin

undercover police officer

distribution of

record of

addict, sold drugs

in 1987,

heroin and cocaine

and pled

in 1988.

In

1991, Ms. Perez was arrested for distribution of cocaine.

In fairness

to the government,

it should

be noted

that

there were three other state court drug convictions which the
defendant successfully vacated before her federal sentencing.
In addition, after

her federal sentence, she

pled guilty to

another state cocaine distribution charge and received a five

-1414

such a categorical

prohibition deprived it of

discretion to

consider whether Perez's criminal history category overstated

the seriousness

of her

prior crimes

and therefore

Perez could receive a downward departure.

decided that it

whether

The district court

had no discretion to depart,

but said that,

if it

were

permitted,

departure.14

in

error;

have

granted

downward

On this question of law, the district court was

it

defendant's

it would

was not

offenses

forbidden

fall

from

within

the

considering whether

heartland

or

were

atypical.

Offenders, such

prior felony

as defendant Perez,

convictions for

who have

controlled substance

two

offenses

are automatically placed in criminal history category VI (the

highest criminal

level

history category)

determined by

the "offense

and assigned

an offense

statutory maximum"

under

____________________

year sentence concurrent with her federal sentence.

In this federal offense, Perez was arrested for possession
of 13.641
career

grams of heroin.

Without the application

offender guidelines, her

of the

sentencing range would have

been 18 to 24 months.

Because she was a career offender, her

sentencing range jumped to 151 to 188 months.

14.

It is settled law that

great deference is accorded to a

district court's determination

the heartland.
decides

that

When,
a case

warranted, deference is
deciding
See, e.g.,
_________

whether the

that a case falls

as in this
is

so

case, the

unusual

case before

Koon, 116 S. Ct.

____

district court

that a

owed to its "special

it is

outside of

departure

is

competence" in

a heartland

at 2046-47; Lindia, 82
______

case.
F.3d at

1165; United States v. Rodriguez-Cardona, 924 F.2d 1148, 1157

_____________
_________________
(1st

Cir. 1991).

treatment

for one

The

majority's

group" are

concerns about

misplaced.

Every

"special
departure

raises the same difficult issue of separating an unusual case

from ordinary cases.

-1515

U.S.S.G.

4B1.1.

The Guidelines sentencing table mandates a

sentencing range (in

defendant's

intersect.

this case 151 to 188

criminal

history

category

Section 4A1.3 allows

departure

Guidelines

from

when

significantly

the

the

months) where the

and

offense

level

a sentencing court to grant

sentencing

"defendant's

less serious than

range

mandated

criminal

that of most

by

history

the

[is]

defendants in

the same criminal history category . . . ."

The

4A1.3

based

categorically

majority

on

an

concludes

offender's

forbidden

for

that

departures under

criminal

career

history

offenders.

are

This

conclusion derives

U.S.C.

994(h).

assertion that

from

The

the

majority's

That

or

near the

maximum term

not correct.

"The Commission

specify a sentence
_______

maximum

28

994(h) requires the Sentencing Commission to

assertion is

says is:

of

majority's conclusion depends upon its

"produce" sentences for three-time

are "at

misreading

("career") offenders that

authorized" by

What the

statute.

statute actually

shall assure that the guidelines

____________________________

to a term of imprisonment at

or near the

term authorized for [career offenders]." 28 U.S.C.

994(h) (emphasis added).

The Guidelines do indeed

specify such sentences at

or near the maximum for career offenders in U.S.S.G.

But

nothing in

994(h)

requires that

every
_____

4B1.1.

offender who

falls under

the Guidelines provisions

for career

offenders

-1616

receive the maximum

to

sentence.

The Guidelines

were designed

allow for departures when appropriate, and departures are

permissible

in exceptional

cases.

See
___

Lindia, 82
______

F.3d at

1165

("Section

Commission's

994(h),

duty

to

however,

formulate

is

directed

guidelines

to

the

pertaining

to

categories of defendants, not to sentencing courts faced with

individual

defendants."); United States v.

______________

Novey, 78
_____

F.3d

1483, 1489 (10th Cir. 1996) ("Section 994(h) does not mandate

that each individual defendant receive a sentence 'at or near

the

maximum term authorized.'

the Commission to

Rather, the

statute directs

assure that the guidelines

specify such a

term for 'categories of defendants' in which the defendant is

a recidivist violent felon or drug offender.").

Because

important

to

of the misreading

clarify

whether

a departure

Section

4A1.3

is

the

proper

is warranted

concerned

with

by the majority,

method

for

it is

determining

under

U.S.S.G.

the

accuracy

4A1.3.

of

the

defendant's

4A1.3,

with

criminal history

category.

Under

U.S.S.G.

the point of reference for departures is a comparison

the other offenders in the defendant's criminal history

category.

compare

The proper departure

the

defendant

to

the

inquiry in this case

"typical"

criminal history category VI offender.

There may be cases where the

that a defendant's

As

or

"heartland"

4A1.3 says:

court concludes

criminal history category

significantly over-represents the seriousness

of

defendant's

criminal

-1717

history or
__

is to

the

likelihood

that

further

crimes.

conclude

that

the defendant
. .

will

The

commit

court

may

the
defendant's criminal
___________________________

history was significantly less serious than

_____________________________________________
that of most defendants in the same criminal
_____________________________________________
history category . . . and therefore consider
________________
a downward departure from the guidelines.

U.S.S.G.

4A1.3 (emphasis added)

The

were "small" but

is

question is

the

rather whether the offender's

so "significantly

criminal

not whether

less serious"

history category

previous offenses

criminal history

than that of

VI offender

(not

the heartland

just other

career

offenders) that a

Reyes, 8
_____

departure is warranted.

F.3d 1379, 1384

Cf.
___

United States v.
_____________

(9th Cir. 1993) (proper

comparison is

with other offenders).

In

statute, the

4A1.3.

granted

addition

to

its misreading

majority ignores the

Section

of

likelihood

that

the

(emphasis added).

of "and" is telling.

history category does

defendant's past

the

defendant

will

criminal

commit

The Guideline's use of the

Under

the controlling

plain language of

4A1.3 repeatedly states that a

if "the criminal

seriousness

of

U.S.S.G.

departure may be

not reflect the

conduct

other

or the
__

crimes."

word "or" instead

4A1.3, a defendant's "past criminal

conduct" may alone justify a departure, apart from his likelihood

_____

of

recidivism.

overwhelming

that these

The

majority's

precedent contrary to

other

recidivism is

cases

did not

attempt

to

distinguish

its decision on

establish

the grounds

connection

contrary to the plain meaning of

the

4A1.3.

with

In any

-1818

event, an offender's

criminal past is an excellent

(perhaps the

best) predictor of his likelihood of recidivism.

Nor does the majority consider that upward departures

from criminal

history category VI

4A1.3, based on

has

routinely

offenders

"the nature of the prior offenses."

approved

based on

such

Parkinson, 44 F.3d
_________

upward

their prior

States v. Black, 78 F.3d 1,

______
_____

opinion,

are explicitly endorsed

bad

departures

acts.

by

This court

for

See, e.g.,
_________

repeat

United
______

8 (1st Cir. 1996); United States

_____________

6, 10 (1st

Cir. 1994).

Under the

v.

majority

4A1.3 becomes a one-way rachet; upward departures may

be granted based on prior

The plain language

of

offenses, but not downward departures.

4A1.3 demonstrates that,

except for the

specific exception of criminal history category I offenders, both

upward

and

downward

departures

are

contemplated.

Neither

Congress nor the

Sentencing Commission intended

such a lack

of

even-handedness.

In addition to misreading the controlling statute and

the language of

the Guidelines, the majority

controlling precedent.

The majority incorrectly implies that the

Supreme Court's recent decision in

S.

Ct.

1673 (1997)

also misinterprets

undercuts

our

United States v. LaBonte, 117

_____________
_______

holding

in Lindia
______

that

sentencing court may grant a career offender a downward departure

if

the

court

concludes

criminal history category

that

the

guideline

career

inaccurately reflects the

-19-

offender

defendant's

19

criminal history.

LaBonte has little bearing on the issue to

_______

be

decided in this case.

LaBonte
_______

sentencing table,

addresses

the

not the criminal

offense

level

axis of

history category axis.

the

The

issue in LaBonte was not departures but the meaning of the phrase
_______

"offense

statutory

maximum"

for

purposes

of

computing

an

offender's

"whether,

maximum

any

offense

level.

by 'maximum term

term available for

The

term available

was

asked

to

authorized,' Congress meant

the offense of

applicable statutory sentencing

the maximum

Court

decide

(1) the

conviction including

enhancements, . .

without such enhancements

. or (2)

. .

. ."

LaBonte, 117 S. Ct. at 1675.

_______

LaBonte concerned the structure of the Guidelines and

_______

determined that, in order to assure that the

a sentence to a term of imprisonment

authorized

994(h),

for [career offenders]"

the phrase "maximum

applicable statutory

"guidelines specify
__________________

at or near the maximum term

as mandated

by 28

term authorized" must

sentencing enhancements."

U.S.C.

"include all

LaBonte, 117 S.
_______

Ct.

at

1675.

LaBonte
_______

possibility of departures

does

not,

however,

foreclose

for unusual career offenders

the

who fall

outside the heartland.

Indeed, LaBonte cuts

_______

In

LaBonte,
_______

the

Supreme

against the majority's holding.

Court

remarked

that

994(h)

"unquestionably permits a certain degree of flexibility for . . .

downward departures . . . ."

LaBonte, 117 S. Ct. at 1678.

_______

-2020

But

the Court was careful to point out that the "pertinent issue"

the case

was

"'not

statutory maximum,

close.'"

how

but to

the sentence

which

must

statutory maximum

be

to

it must

the

be

Id. at 1678 (quoting United States v. Fountain, 83 F.3d

___
_____________
________

946, 952 (8th Cir. 1996)).

perhaps

close

in

dicta,

but

LaBonte's reference to departures is

_______

this dicta

further

demonstrates

that the

majority misinterprets the case.

This

court has already decided the issue, in Lindia,

______

against the majority position.

This court decided in Lindia that

______

"a sentencing

the

court may invoke

career-offender category if

4A1.3 to depart

downward from

it concludes that

the category

inaccurately reflects the defendant's actual criminal history . .

. ."

Lindia, 82 F.3d at
______

issue we face

in this case.

long recognized

that when

guideline's heartland,

1164.

1165.

a case

departure' the

circuit has

falls outside the

departure may

applicable

be warranted.

there were some factors

rejected as permissible

but held that the Commission

precisely the

Lindia noted that our

______

Lindia recognized that

______

been "explicitly

Lindia addressed
______

Id.
___

at

that had

grounds for departure"

had "not designated as a 'forbidden

overrepresentation of a criminal history category

in career offender cases."

Lindia's holding

Id. at 1164-65.
___

is consistent with the

holdings of

______

each of the other circuit courts that have considered this issue,

both

before and

after Lindia
______

was decided.

See, e.g., United

__________ ______

States v. Collins, 122 F.3d 1297, 1304 (10th Cir. 1997) ("[F]or a
______
_______

-2121

defendant

who technically

qualifies as

career offender

but

whose criminal history and likelihood of recidivism significantly

differ from

court

may

the heartland

consider

category.");

of career

departure

offenders, the

from

United States v. Spencer, 25

_____________
_______

the

sentencing

career

offender

F.3d 1105, 1113 (D.C.

Cir. 1994); United States v. Fletcher, 15 F.3d 553, 557 (6th Cir.
_____________
________

1994); Reyes,
_____

8 F.3d

F.2d 440, 447

(3d Cir. 1993); United States v.

_____________

489, 493-94

at 1383-84; United States v.

______________

(2d Cir. 1992);

Shoupe, 988
______

Rogers, 972 F.2d

______

United States v. Beckham,

_____________
_______

968 F.2d

47, 54 (D.C. Cir. 1992) (agreeing with "the unanimous judgment of

the

other circuit

4A1.3 authorizes

category

courts to

downward

have considered

the issue

that

departure

criminal

history

when

VI, assigned pursuant to the career offender guideline,

significantly

past

overrepresents the

seriousness

of a

defendant's

criminal conduct and the likelihood of recidivism") (citing

cases); United States v. Lawrence, 916 F.2d 553, 554-55 (9th Cir.
_____________
________

1990); United States v. Brown, 903 F.2d 540, 545 (8th Cir. 1990).
_____________
_____

In both Spencer and Reyes, our

_______
_____

that

4A1.3

departures for

when the

sister circuits held specifically

career offenders

defendant's predicate

are

permissible under

offenses

were relatively

minor.

The majority opinion is also directly contrary to the

Supreme Court's holding in Koon, and to the intent of Congress as

____

interpreted

by Koon.
____

Koon
____

explained that

examination of whether a factor

"a

federal court's

can ever be an appropriate basis

-2222

for

departure is limited

has proscribed,

factor.

court

as a

to determining whether

categorical matter,

the Commission

consideration of

the

If the answer to the question is no . . . the sentencing

must determine

whether the

factor, as

occurring in

the

particular circumstances, takes the case outside the heartland of

the applicable Guideline."

factor

is

exceptional

explicitly

Koon, 116 S. Ct.

____

not expressly

case serve

states

forbidden,

as

the

that "for

the

it

at 2051.

may

basis for

courts to

Thus if a

at least

in

departure.

conclude

the

Koon
____

a factor

[other than an explicitly forbidden factor such as race] must not

be considered under any circumstances

would be to transgress the

policymaking authority vested in the Commission."

In Koon the Supreme Court

____

few

reasons

for

departure are

Guidelines, as the Guidelines do

whether

or not mentioned

could constitute grounds

Id. at 2050.
___

expressly held that only a

entirely

prohibited

under the

not limit the kinds of factors,

anywhere else in

the Guidelines, that

for departure in an unusual

case.

The

only

departure factors entirely forbidden by the Guidelines are:

race, sex,

status, see
___

U.S.S.G.

5H1.4,

U.S.S.G.

5H1.12,

and

departures

forbidden

4A1.3.

national origin,

economic

creed,

5H1.10, lack of

drug or alcohol

duress,

for atypical

see
___

criminal

factor, are specifically

See Collins,
___ _______

religion and

122 F.3d at

-2323

socioeconomic

guidance as a youth, see

___

dependence, see
___

5K2.12.

history,

far

In

from

encouraged under

1304 ("Because

U.S.S.G.

contrast,

being

U.S.S.G.

section 4A1.3

provides an encouraged basis for departure not already taken into

account by the

Commission, over-representation of a

criminal history

defendant's

or likelihood for recidivism always

will be an

approved ground for departure."); Lindia, 82 F.3d at 1165.

______

The majority

holds

that,

because

the

defendant's

prior drug felonies are the reason she is categorized as a career

offender,

account

her prior crimes

by

the

were already "adequately

Sentencing

guidelines," U.S.S.G.

5K2.0,

Commission

in

taken into

formulating

and could not therefore

the

serve as

the basis of a departure.

and decided

that if a

Koon explicitly addressed this issue,

____

Guideline already takes a

into account, then the factor

must be present to an "exceptional

degree" before a departure may be granted.

the reasoning

employed by

departures entirely.

Guideline

guideline),

(as

"the

present to an

case

different

present."

But Koon, contrary to

____

the majority, did

not rule

4A1.3)

is criminal

court

is already taken into account by

history

should depart

in

the

only

if

exceptional degree or in some other

from

out such

Under Koon, if an encouraged factor (e.g.,

____

criminal history under

certain factor

the

ordinary case

Koon, 116 S. Ct. at 2045.

____

1164-65; United States v. Rivera,

_____________
______

where

career offender

the factor

is

way makes the

the

factor

is

See also Lindia, 82 F.3d at

________ ______

994 F.2d 942, 947-49 (1st Cir.

1993).

Under Koon, the majority's holding that

____

4A1.3 for

career offenders

are precluded

departures under

by

implication is

-2424

incorrect.

Departures for career offenders under

4A1.3 should

be extremely rare, but it is wrong to forbid them entirely.

Koon's
____

departure factors

holding

that

may never serve

only

expressly

as the basis for

forbidden

a departure

has been, until today, regularly followed by this court, and thus

the

majority's

precedent.

position

is

in

conflict

with

other

of

our

See, e.g., United States v. Brewster, 127 F.3d 22, 26

_________ _____________
________

(1st Cir.

1997) (noting that

departure

jurisprudence: that,

proscription,

courts generally

it is a "fundamental

in the

absence

should not

principle of

of an

explicit

reject categorically

any factor as a potential departure predicate"); United States v.

_____________

Clase-Espinal, 115 F.3d 1054, 1060 (1st Cir. 1997) (noting Koon's
_____________
____

instruction that "with few

not

be ruled

out on

exceptions, departure factors

categorical basis");

should

United States

v.

_____________

Hardy,
_____

99 F.3d

departure

1242,

criterion

circumstances

Commission").

that

cannot

unless

In

lesson" of prior

not infer from

1249

(1st Cir.

be

deemed

categorically

Brewster, the court

________

1996)

(stating that

impermissible

foreclosed

said that a

in

by

"a

all

the

"fundamental

First Circuit caselaw is "'that

a court should

inexplicit Guidelines language, or

from language

authorizes use

of a

particular factor

in some

cases, an

absolute barrier in principle against using certain other factors

as

grounds for departure in other

F.3d at 27

Cir. 1994)).

(quoting United States

_____________

unusual circumstances.'"

v. Doe, 18
___

F.3d 41, 47

127

(1st

-2525

In

1996),

United States
_____________

this court

interpreted

v. Olbres,
______

Koon as
____

99

F.3d 28

dictating

(1st Cir.

that even

discouraged factor such as a defendant's vocational skills is not

categorically

34-35

prohibited as a basis for a departure.

("Categorical

interpretations

'would

See id. at
___ ___

nullify

the

Commission's treatment

of particular

departure factors and

its

determination that, with few exceptions, departure factors should

not be ruled out

present

case

approach

still

on a categorical

merely

would be

have

to

concerned

basis.' . .

vocational

inappropriate and

consider

whether

the

the

. [E]ven if

skills,

per

district court

case

was

in

the

se

would

some

way

'different from the ordinary case where the factor is present.'")

(quoting

vocational

Koon,
____

116

skills,

overrepresentative

encouraged under
__________

other

S. Ct.

at

departures

criminal

departures based on all

2051).

In

contrast to

under

4A1.3

for

history category

are

specifically

the Guidelines.

opinions point out,

2045,

As Olbres
______

and a host

Koon rejected categorical

____

but a few explicitly

an

of our

denials of

forbidden factors,

such as sex and race.

Departures under

on the nature of the

drugs in

the prior

for career offenders

based

defendant's involvement and the quantity of

offenses are

The majority opinion

subsequent

4A1.3

panel does

not categorically

effectively overrules

not have

States v. Graciani, 61 F.3d

______
________

the power

foreclosed.

Lindia, something
______

to do.

See United
___ ______

70, 75 (1st Cir. 1995); Williams

________

-2626

v.

Ashland Eng'g Co., 45 F.3d 588, 592 (1st

__________________

directly on point,

Cir. 1995).

and has not been undercut

authority of LaBonte.
_______

Cf. Stella v.
___ ______

Lindia is
______

by the controlling

Kelley, 63 F.3d 71, 74 (1st

______

Cir. 1995).

The

holding with

history involved.

versus

compounds its

distinction

based on

error

the

history is

by clouding

"type"

The suggested distinction

"offense" criminal

difference.

based

majority

of

its

criminal

between "personal"

distinction without

An offender's criminal history category is computed

on that person's

prior criminal acts,

i.e., the offenses

the

person

committed.

The

offenses

in which

the

defendant

participated define an offender's criminal history.

______

Our

whether a

prior

role is

departure based on

offenses is

accordance

limited to

the character

ever permissible

with Koon, our

____

deciding an

of the

for career

precedent, and

issue of

law:

defendant's

offenders.

the precedent

In

of our

sister circuits, I would answer this question in the affirmative.

The Supreme Court

the

decision

in Koon has committed, in

____

whether

to

exercise

this

allowable departures to the district court.

the first instance,

discretion

to

grant

See Koon, 116 S. Ct.

___ ____

at 2046-47.

I would

reverse the

district court

and remand

the

case for resentencing.

-2727