USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-2331
UNITED STATES,
Appellee,
v.
ARTHUR DOE,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Selya and Boudin Circuit Judges.
______________
____________________

Richard B. Klibaner, by Appointment of the Court, with w

____________________
Klibaner & Sabino was on brief for appellant.
_________________
Ralph F. Boyd, Jr., Assistant United States Attorney, with w
___________________
A. John Pappalardo, United States Attorney, was on brief for appell
__________________
____________________
March 18, 1994
____________________

BREYER, Chief Judge.

___________
decision of the district
to

This appeal focuses upon the

court, when sentencing Arthur Doe,

depart from the Sentencing Guidelines.

guilty

of

possessing

conviction.

18

U.S.C.

Guidelines specified

an

years (21 to 27 months).

the Guideline
criminal

gun

after
922(g)(1).

previous
The

imprisonment range

of

felony

Sentencing
about

two

The district court, believing that

range did not adequately

record, departed

A jury found Doe

and

reflect Doe's prior

imposed a

sentence of

six

years imprisonment instead.

Doe now appeals.

We

find the

departure lawful, and we affirm his sentence.

I
Background
__________
This is Doe's second sentencing appeal.
time,

the district

court

had found

"mandatory minimum" sentencing

to impose at least
in

possession"

convictions for

applicable a

a gun

with

three

"violent felonies."
_______

(emphasis added).

special

statute requiring the

a fifteen year prison term

of

The first

(or

18

court

upon "felons
more) previous

U.S.C.

In that earlier appeal, we

924(e)(1)
focused upon

one of Doe's three earlier felony convictions, namely a 1984

conviction for being
different and

a "felon

in possession" of

earlier instance of

a gun

the present crime).

(a
We

-22

held

that

this

particular

felony

--

the

"felon

in

possession" crime --

is not itself a violent

_______

the "mandatory minimum"

felony; hence

statute did not apply.

See United
___ ______

States v. Doe, 960 F.2d 221 (1st Cir. 1992).

______
___
On remand, the district court properly referred to
the 1989

Sentencing Guidelines

(in effect in

March, 1990,

when Doe committed the crime) instead of the stricter (1991)

version

in effect at the

time of Doe's

United States v. Cousens, 942

______________
_______
1991).
for

Under

the "felon

2K2.1(a)(2).

in possession"

criminal history points for

result, offense
produced a

F.2d 800, 801

the 1989 Guidelines,

The Guidelines

level 12

resentencing.

n.1 (1st Cir.

the base offense

crime was
assigned

12.
a

See
___

level

U.S.S.G.

total of

eight

Doe's earlier convictions.

at Criminal History

Guideline sentencing range

of 21 to

The

Category IV,
27 months.

See U.S.S.G. ch. 5, pt. A (Table).

___
The court, after review
and after

of the presentence report

argument at the sentencing

Doe's case was

an unusual, rather

hearing, decided that

than ordinary, case,

in

four respects:
1)

At least one of Doe's prior convictions, for

armed bank robbery,
was a
particularly
dangerous crime involving use of a gun.

2)

Doe's record revealed a

aggravated assaults.
-33

history of serious,

In

3)

Doe's record revealed a history of committing

crimes while he was free on bail awaiting
trial (or the like).

4)

At the time of his arrest for the present

crime, Doe led the police on a high speed
chase, endangering the lives of others.

light of these special

departed from the

appeals

case, the court

applicable guideline range (approximately

two years) and instead

Doe now

features of the

imposed a prison term of

this sentencing

departure.

six years.
18 U.S.C.

3742(a).
II
Standard of Review
__________________
The
kinds of

legal issues

issues

raised in

before

us are

sentencing

typical of

departure

the

appeals.

They concern (1) the grounds for departure, i.e., whether or

not the circumstances are of a "kind or degree" upon which a
district

court

"may

appropriately"

rely

"to

justify

departure," United States v. Diaz-Villafane, 874 F.2d 43, 49

_____________
(1st

______________

Cir.), cert. denied,

_____________

whether the

493 U.S.

extent of the district

about two years to six) was

3742(e)(3).
kinds

862

(1989); and

court's departure (from

"reasonable."

We explained our

(2)

Id.; 18 U.S.C.
___

reviewing approach to these

of issues in Diaz-Villafane,
______________

874 F.2d at

49, and in

United States v. Rivera, 994 F.2d 942 (1st Cir. 1993).

_____________
______

Some

-44

district court

decisions that a particular

case is unusual

enough to warrant departure reflect sentencing experience of

a

sort

one typically

finds

in

district, not

appellate,

courts; in our view,

the law provides the district

court a

degree

degree"

of

"leeway"

in

making

judgments.

Rivera,
______

994

F.2d

those
at 951.

"kind
Other

or

departure

decisions

reflect a determination of

interpretation of
in

such cases,

the language in, a

where a

expertise in resolving
an

appellate

court

gave proper

apply

one or

no comparative

the "quintessentially legal"

will

review

In this case, when

court

guideline or statute;

district court has

determination independently.

appropriate.

the purpose of, or an

legal

the other

the

district

issue,
court's

Id.
___
we decide whether the district

reasons for
of these

departing, we

standards of

shall

review, as

When we review the degree of departure for its

"reasonableness," we shall apply a "deferential" standard of

review.

Rivera, 994
______

F.2d at 950; Diaz-Villafane, 874

______________

at 49-50.

-55

F.2d

III
Grounds for Departure
_____________________
A
The Bank Robbery
________________
The
consisted

district court's

of the

That crime was

nature
______

of one

a bank robbery

guns, that put employees and

harm.

first reason
of Doe's

for departing
earlier crimes.

in daylight, committed
bystanders at risk of

with

serious

The Guidelines assigned three criminal history points

for this crime.

things,

Doe's

But the district court, noting, among other

repeated

use

of

guns,

thought

that

it

warranted more.
Doe argues that the Guidelines forbid the district
court

from

departing for

this reason.

He notes

departure reason must, at least in principle, make

"unusual";

it must

case

the

from

suggest circumstances

"heartland"

of

Rivera, 994 F.2d at 947-48.

______
earlier felony involved use

the

that a
the case

that

remove the

relevant

guideline.

But, he says, the fact that an

of a gun, or a

related risk of

violence, cannot remove the case from the "heartland" where,

as here, the instant crime is being a "felon in possession."
Doe points

out that

everyone
________

convicted of

the "felon

in

possession" crime must

also have been convicted

of a prior

-66

felony.

In

his view,

risks

of violence

crime

must

be

possession.

that an
common,

Hence,

heart of, not on

so many

felonies involve

earlier
not

those

guns and

conviction for

unusual,

for

circumstances must

the periphery of or outside,

such a

felon
lie at

in
the

the relevant

"felon in possession" guideline.

We

can treat Doe's argument

as one of pure legal

principle and consider it independently on review only if we

treat

it as

an extreme

argument --

an argument

that the

guideline's heartland encompasses all earlier gun-related or

___
risk-of-violence-related

prior felonies.

F.2d

court

at

951 (appellate

will

See
___

Rivera, 994
______

independently perform

"quintessentially legal" function of deciding what guideline

means).

Phrased

in

this

way,

the

argument

is

not

convincing.

The "felon in possession"

guideline says only

that its base offense level of 12 applies when the defendant

has previously
been convicted
. . . of
a crime
punishable by imprisonment for a term
exceeding one year.
18
That

U.S.C.

922(g)(1) (cited

language,

taken literally,

behavior, ranging
heinous.

in U.S.S.G.

from the

covers

2K2.1(a)(2)).
a

vast range

totally nonviolent to

of

the most

Nothing in this language (or its apparent purpose)

-77

says

that every
_____

(earlier) gun- or

must fall within its

that Congress
term upon

heartland.

has imposed

felons in

felonies, 18 U.S.C.

violence-related felony

To the contrary,

a fifteen-year

possession with three

_____

the fact

mandatory prison
earlier violent
_______

924(e)(1), suggests, by extrapolation,

something special about one or two earlier violent felonies.

Moreover,

whether the

violent nature

of an

does, or does not, warrant special treatment

earlier crime
would seem the

kind of fact-related circumstance about which the Sentencing

Commission hoped to learn
basis of

more, as district courts,

their experience,

decided to depart,

on the

or not,

in

light of such circumstances.

See Rivera, 994 F.2d

___ ______

at 946,

949-51

district

in

helping

Thus, even though

we find

(explaining

Commission revise
some

of

Guidelines).

dismal truth

felonies

role

in

Doe's claim

that

involve guns and violence,

the "felon in possession"

courts

large numbers

of

we do not believe that

guideline automatically rules out

_____________

consideration of a departure based on such features.

To make Doe's
rephrase

it as

nature of the
warrant a

argument more

an argument
earlier gun

departure.

convincing, we

that here,
____
crime is not

Indeed, whether the

in this
____

must

case, the

special enough

to

special facts of

daytime bank robbery, guns, and risks of violence, make this

-88

case

unusual enough

to permit

departing beyond

punishment

that accompanies

three criminal

presents a

close question.

But

question about

it is

which we must listen to

with "respect."

the

the added

history points
very kind

of

the district courts

It

amount[s] to a judgment about whether

the given circumstances, as seen from
the district
court's unique vantage
point, are usual or unusual, ordinary or
not ordinary, and to what extent.
Rivera,
______

994 F.2d at 951.

We have

recognized the district

court's
special competence in making this kind
of determination, because it may have a
better
"feel"
for
the
unique
circumstances of the particular case . .
. .
Id.
__

We have

courts

also pointed out that, by

a degree

of leeway

in making

permitting district
such determinations,

they become, for the Sentencing Commission, an

important source of information . . .
which . . . can help the Commission
determine whether, and how, Guidelines
revision should take place.
Id.
___

As we have just

presence of violence

said, how district courts react to the

as an

attribute of one

or two

prior

violent felonies could help the Commission decide whether or

not it

should write guidelines that

mandatory

"extrapolate" from the

minimum sentencing statute's requirement of three

-99

such prior convictions.

recent guidelines
Compare
_______

versions, has

U.S.S.G.

felons in

(In fact, the Commission,

2K2.1(a)(2)

in more

extrapolated in this
(1989) (level

possession) with U.S.S.G.

____

12 for

way.
all

2K2.1(a)(2), (4)(A),

(7) (1991) (level 24 for felons in possession with two prior

violent felonies, level 20 for one, level 12 for none).)
These

considerations, along with the obvious fact

that putting innocent lives at risk, using guns, and robbing

a bank

in daylight,

aggravate the

prior

conduct to

some

degree, lead us to find lawful the district court's decision

to

use these facts as one (of several) bases for departure.

___

We need not
the

ordinary

decide how much of a departure

punishment

attributable

to

(over and above

three

criminal

history points)
facts

were

departure.

these facts alone would

not

the

district

warrant, for these

court's

sole

basis

for

See Part IV, infra (discussing the extent of the

___
_____
______

departure based on all permissible factors).

___
B
Repetitive Assaultive Behavior
______________________________
The
its belief

district court set

forth another

that "reliable information"

ground for

indicated that

the

Guidelines'

-1010

criminal
history category
does not
adequately reflect the seriousness of
the defendant's past criminal conduct.
U.S.S.G.
so).

4A1.3 (p.s.) (encouraging departure where that is

That ground consists of what the district court called

"a virtually unbroken chain of assaultive behavior."

Doe's earlier convictions involved Doe's having

One of

hit someone

over

the head with a pipe; another involved beating two men

with

a handgun

assigned

and kicking

no criminal
__

one of

history

them.

points for

serious crimes, in the first instance

The Guidelines
either of

these

because Doe was under

18 at

the time (and the conviction was more than five years

old);

in the

tried

the

second instance

still

underage

because (although

Doe

as

an

the court

adult)

the

court

suspended Doe's sentence, perhaps because he was about to be

sentenced to a lengthy federal prison term for bank robbery.
See U.S.S.G.
___

4A1.2(b)(2), (d).

Doe cannot deny the rather special nature of these

circumstances, which resemble those for which the Guidelines
encourage

criminal

history departures.

(p.s.); cf. United States

___ _____________
Cir.

1991)

history
evidence

(adult

score

U.S.S.G.

4A1.3

v. Aymelek, 926 F.2d 64,

_______

73 (1st

convictions

may serve

as

"some significantly

not

counted

basis for

departure

unusual penchant

-1111

in

criminal
if they

for serious

criminality").

Doe does, however, make one important purely

legal

argument.

He points

cases

that

that

hold

encourage,

but they

where,

here,

as

to

the Guidelines

forbid,

the

two federal

criminal

departure

uncounted

criminal conduct (unless

"similar"

to

States v.
______

Samuels,
_______

the present

crime

938 F.2d

not

210,

appeals court
only

fail

to

history

departures

on

juvenile's
________

rests

the juvenile conduct is

of

conviction).
214 (D.C.

United
______

Cir.

1991);

United States v. Thomas, 961 F.2d 1110, 1116 (3d Cir. 1992)
______________
______
(adopting Samuels).
_______
We do
circuits, in
departures

not accept

the argument because

these cases, read the

contrary to this

Guidelines' approach to

circuit's understanding.

Rivera,
______

994 F.2d at 946-52.

reached

its conclusion by engaging in

In Samuels,
_______

interpretation" of Guideline commentary.

Sentencing

these two

Guidelines, when calculating

See
___

the D.C. Circuit

a kind of "statutory
It noted that the
a criminal history

score, count prior adult crimes up to fifteen years old, but

they do not count prior juvenile crimes more than five years
old.

U.S.S.G.

this

rule,

4A1.2(d), (e) (setting forth approximately

though

sentences, rather
_________
that, in

tying

than to

most

calculations

prior

crimes).
______

an application note, the

to

prior

It also

noted

Commission explains that

-1212

this "fifteen versus

"differential

five" year

availability"

of

sometimes juvenile records are

are not).

See U.S.S.G.
___

adult

due to

records

the

(i.e.,

available and sometimes they

It further noted that,

the Commission adds that a

might nonetheless want to

or juvenile crime (i.e.,

old, or more than

juvenile

4A1.2 n.7.

in a different application note,

sentencing court

difference is

use an outdated

one more than fifteen years

five years old, respectively) as

a basis

for departure where that crime provides "evidence of similar

_______

misconduct" with respect

(emphasis added).
the Samuels
_______

From

conduct

the conclusion that

for a departure, unless

______

similar to
___________

the

exaggerate

Thomas
______

n.8

the Guidelines

conduct

that conviction reveals

underlying

in its view,

the

the

present

any other rule

sentencing

five-year cutoff] is meant

214-16.

Id.
___

use a pre-cutoff-date juvenile conviction

offense of conviction;
plainly

offense.

these two statements in commentary,

court drew

forbid a court to
______
as a basis

to the present

disparities

to curb."

that [the

Samuels, 938
_______

basically followed

Samuels.
_______

"would

F.2d at

Thomas, 961
______

F.2d at 1116.
Our reason for disagreeing with this analysis
two

parts.

Samuels
_______

First,

court pointed

the

application

do not say
___________
-1313

notes to

whether

which

or not

it

has
the
is

sometimes permissible to depart

on the basis of

offense that reflects dissimilar,

___
The first

cases.

pre-cutoff-date, conduct.

application note, referring to

availability"

of juvenile

a juvenile

records,

talks

the "differential
about

ordinary
________

It explains (in part) why the Commission established

a five year,

rather than

juvenile offenses,

a fifteen year,

See U.S.S.G.
___

Guideline

requires

computation.
affect

the

uniformity

Hence, the
outcome
is

for

for purposes of computing the criminal

________________________________________

history score.
______________
case

cutoff date

of

a major

4A1.2
criminal

rules governing
ordinary
________

n.7.

history

goal.

every
_____
score

that computation

guidelines

Guidelines

But

cases

The

note

where
says

nothing about departures -- the Guidelines' escape hatch for

__________
unusual circumstances -- which by definition create, and are
_______
supposed

to create, non-uniformity.
___

note refers to
presence of

a special reason

serious similar

that

the Guidelines'

n.8,

and it

Rivera,

994

The second application

for departing, namely

instances of

calculation system

"encourages" departures
F.2d at

948.

That

the

criminal conduct
ignores, see
___

for this

id.
___

reason, see
___

note, however,

does not

______

________

mention departures
_______

for other reasons, such

_____

of uncounted, earlier, dissimilar conduct.

___
49

(distinguishing

among

as the presence
See id. at
___ ___

947-

"ordinary,"

"encouraged,"

and "forbidden" departures).

Thus, the note

-1414

"discouraged,"

provides no explicit Commission guidance on this question.

___________
Second,
application

notes

Guidelines

forbid

juvenile

conduct

the Samuels
_______
imply
_____

an unstated
________

using
as a

court's inference

basis

principle

pre-cutoff-date,
for

F.2d

that

the

dissimilar,

departure) is

contrary to our understanding of the Guidelines'

as

(that the

directly
intentions

to whether, and when, courts may depart. See Rivera, 994

___ ______
at 947-49.

The

Introduction to the

Guidelines says

expressly that, with a handful of exceptions, the Guidelines

do not "limit the kinds of factors, whether or not mentioned
_____________
________________________
anywhere else in the guidelines
___________________________________
grounds

that

could

for departure in an unusual case."

__________________

constitute

U.S.S.G. ch. 1,

pt. A(4)(b) (p.s.) (emphasis added); see Rivera, 994 F.2d at

___ ______
947.
such

The

handful of

matters

status.

as

explicit listed

race, sex,

E.g., U.S.S.G.
____

religion,

exceptions includes
and socio-economic

5H1.10; Rivera, 994 F.2d

______

49.

The listed

exceptions do not include conduct

___

the

subject of an outdated juvenile conviction.

said before, the language from the

at 948that was

As we have

Guidelines' introduction

that we have just quoted means that a court should not infer
from inexplicit Guidelines
authorizes

use

of

language, or from

particular factor
-1515

as

language that
a

basis

for

departure in

some cases,
____

an absolute barrier
________

in principle

against using certain other factors as grounds for departure

in other unusual circumstances.
______________
948-49

(noting that

courts

are "free

with

to

See
___

several

Rivera, 994
______

"explicit
________

consider, in

an

F.2d at

exceptions,"

unusual case,"

any

factors making a case "unusual") (emphasis added).

We
impose very

emphasize

sentencing.

To

unusual,
_______

the contrary,
(1) to ask
i.e.,

clearly

to

whether a particular
different

encourage
case is
from

the

If the sentencing court wishes to depart, it

state just

the

how

the

case

differs

from

an

only permitting appellate courts

explanation,

Commission to learn
practice.

is meant

significantly

ordinary case, thereby not

review

it

of pre-guideline

instance of the offense and, (2) if so, to explain

precisely why.

to

upon potential grounds

unique, as in the days

sentencing courts

must

decision to

does not grant sentencing courts a license to

treat each case as

ordinary

Commission's

few limits in principle

____________

for departure

truly

that the

but

more about how

also

permitting

the Guidelines work

See Rivera, 994 F.2d at 951-52.

___ ______

the
in

That information

will help the Commission decide whether, or how, to modify a

Guideline document, which it

sees as organic, evolving over

-1616

time.

U.S.S.G. ch. 1, pt. A(4)(b) (p.s.); Rivera, 994 F.2d

______

at 951-52.
Departure

decisions

resting upon

prior juvenile

records, for example,

might, after Commission

lead

to

the

Commission

encourage different
all

departures

based

forbid certain

Commission,
A(4)(b);

not to

guidelines,

on

outdated

juvenile

to

even to forbid
records,

by

But the decision about whether or not

categories of
the courts.

cf. 18 U.S.C.
___

circumstance

different

kinds of departures, or

explicitly saying so.

to

write

examination,

departure belongs

to the

See
___

1, pt.

U.S.S.G. ch.

3553(b) ("In determining whether a

was adequately

taken into

consideration, the

court shall consider only the sentencing

____

guidelines, policy

statements,

and

official

Commission.") (emphasis

commentary

added).

of

Indeed,

the

Sentencing

after considering

such departure decisions and the Samuels interpretation, the

_______
Commission in

later Guidelines

versions has

rejected that

interpretation, clarifying its prior intent, consistent with

our views
Isabel
______

here.

See U.S.S.G.
___

App.

472 (1992);

cf.
___

v. United States, 980 F.2d 60, 62-63 (1st Cir. 1992)

_____________

("clarifications"

of

Guidelines

may

be

applied

retroactively; "substantive changes" may not).

-1717

Since we do not accept Doe's purely legal argument

against

the district court's use of his juvenile record, he

cannot succeed

here.

His prior

criminal conduct

documented, it took place when he was almost eighteen

is well
years

old,

it was

court, taking

serious, and
these

it was

repeated.

circumstances together,

prior (uncounted) juvenile

Aymelek, 926 F.2d at 73.

_______

court

saw in

record a "significantly

penchant for serious criminality" that

See
___

The district
Doe's
unusual

justified departure.

Recognizing that the district

has a degree of legal "leeway" in making judgments of

thissort, Rivera,994 F.2d at951, we findits decision lawful.

______
C
Criminal Justice Control
________________________
The

district court

departure in the fact

earlier
or was

found

a further

that Doe had committed at

reason

for

least five

crimes while he was on bail, or was awaiting trial,

under

some other

kind of

respect to a different

crime.

not

into

otherwise

taken

This kind of
account

themselves, see, e.g., U.S.S.G.

___ ____
reason for departure.
92-2215, slip
States v.
______

"court supervision,"

by

in

behavior, when
the

Guidelines

4A1.1(d), (e), is a proper

See, e.g., United States v. Fahm, No.

___ ____ _____________
____

op. at 4, 7-8 (1st Cir. Jan. 5, 1994); United

______

Diaz-Collado, 981 F.2d

____________
-1818

640, 644 (2d

Cir. 1992),

cert. denied,
_____________
Madrid,
______

113 S.

Ct.

2934 (1993);

United States v.
______________

946 F.2d 142, 143-44 (1st Cir. 1991); United States

_____________

v. Fields, 923 F.2d

______

358, 362 (5th Cir. 1991),

other grounds,
_____________

United States v. Lambert, 984

_____________
_______

Cir. 1993) (en

banc); United States v.

_____________

overruled on
____________
F.2d 658 (5th

Singleton, 917 F.2d

_________

411, 413 (9th Cir. 1990) (all upholding departures

based in

part on the fact that past crimes were committed under court
supervision

or

shortly after

release);

United States
_____________

v.

Hernandez, 896 F.2d 642, 645 (1st Cir. 1990) ("[A] defendant
_________
undermines the integrity of the criminal justice system when
he commits a
control.").

crime while

he is under

its supervision

and

Again recognizing that the district court has a

degree of legal "leeway"

circumstances present

in deciding whether the particular

here are unusual enough

departure, we find its decision lawful.

D

to warrant a

Reckless Endangerment
_____________________
At

the time of Doe's arrest, he led the police on

a high speed

chase through

city streets,

along the

wrong

side of a divided highway into oncoming traffic, which ended

when he crashed into other cars and a subway tunnel barrier.
Endangering

the lives

of

instant case unusual, in

others

in

this way

principle permitting a

makes

the

departure.

-1919

Indeed,

the

"public

U.S.S.G.
Castro,
______

1989 Guidelines
.

safety

5K2.14; see,
___

encourage

was

a departure

where

significantly

endangered."

e.g., United States

____ _____________

v. Rodriguez__________

908 F.2d 438, 441 (9th Cir. 1990); United States v.

_____________

Chiarelli,
_________

898

F.2d

373,

380-81

(3d

Cir.

upholding departures for similar conduct under

Doe

points

out

that

the

1990

1990)

(both

5K2.14).

Guidelines, not

applicable to
requiring

his case, added a

two-level

circumstances.

case the
the

adjustment and
why

adjustment

in

3C1.2 (1990).

Doe

have increased his

not

through

thinks

in which

sentence through

departure.

applying

such

He seems to

guideline should apply to him,

court should

certain

upward

See U.S.S.G.
___

argue that the new

new provision specifically

____________

We

are

two-level

not

upward

adjustment (under the 1990 Guidelines) rather than departing

upward

two levels (as the

Guidelines

permit)

sentence.

But,

right approach.
case,

in

increase.

would have

regardless,
To

made

and the 1989

difference to

the district

court took

apply the new 1990 Guidelines

this respect,
For

district court did

that

would

have

required a
________

reason,

they

would

seem

the

to Doe's
two-level
to

heightened the severity of the applicable law, which at

time simply permitted such
_________

his

have
the

an increase through a departure.

-2020

Hence, ex post facto principles would

court to the earlier

have led the district

1989 version, which put the

its departure-related discretion.

matter in

Cf. Cousens, 942 F.2d at

___ _______

801 n.1.
IV
The Extent of Departure
_______________________
The

district

sentence range

of 21 to

sentence of 72 months.

court

departed

27 months.

from

Guideline

It imposed instead

The relevant statute instructs us to

review the length of that sentence for its "reasonableness,"

18

U.S.C.

3742(e)(3); in doing so we show "full awareness

of, and respect for" the sentencing court's "superior 'feel'

for

the

case."

Rivera, 994
______

F.2d

at 950

(quoting Diaz_____

Villafane, 874 F.2d at 50).

_________
The

district court

determined the extent

______

of the

departure as follows:
1)
offense

level

The
12,

court

began with

criminal

history

the

Guideline

category

IV,

score,
which

produced a range of 21 to 27 months.

2)

The court decided

that Doe's reckless conduct

fleeing arrest warranted a two-level increase in the offense

level, producing a range of 27 to 33 months.

Cf. U.S.S.G.

___
3C1.2 (1990).
-2121

3) The court

decided that Doe's

warranted, at least, a
departure,

criminal history

two-category criminal history

placing Doe

in

criminal

history category

score
VI,

instead of IV, and (taken together with the reckless conduct

departure) bringing the court to level 14, category VI, with
a range of 37 to 46 months imprisonment.
4) Finally,
"too low

. .

defendant."

the district court

. because

of

the criminal

found this
history of

The court was struck by Doe's

virtually unbroken chain of assaultive

behavior, consistently committed while
under
either
supervision
or
the
generalized
control
of the
court,
starting with the juvenile encounters
with law enforcement and continuing to
the present offense.
The court added that the

range
this

criminal
history category
does not
reflect the seriousness of his offenses
nor the likelihood -- which I consider a
virtual certainty -- that once this
defendant is returned to the street he
will commit future crimes,
and that
[t]his is a defendant who has been
permitted to engage in such plea or
diversionary or ameliorative sentencing
arrangements because this system has
assumed that more serious matters await
him. The classic in this circumstance
is the [state court] disposition of the
defendant for assault and battery with a
dangerous weapon [suspended sentence]
-2222

shortly
after
his
bank
robbery
conviction [in the federal court].
The record

provides

sufficient support

for these

factual

conclusions.
The court then followed the method for calculating
the

kind of

occasion"

for

departure
a

that the

defendant

with

Guidelines recommend
an

"egregious,

"on

serious

criminal

record," U.S.S.G.

4A1.3 (p.s.).

Starting

level 14, category VI, the court in effect moved

at

vertically

down the sentencing table until it found a range it believed

appropriate.

The court selected a 72 month (i.e., six year)

sentence, which
level

is analogous

19 (at category

(level

VI).

19 at category VI

to a five-level
U.S.S.G. ch.

sets range of

departure to

5, pt. A (Table)
63-78 months).

It

noted the Commission's later decision to increase a felon in

possession's offense
felony,

see
___

level by

U.S.S.G.

eight for one

2K2.1(a)(4),

(7)

prior violent
(1991), and

it

pointed out that its resulting sentence was less severe than
the

sentence

would have

been

if

the Commission's

later

Guidelines had applied.

We can find nothing
of

the district

court's departure.

record does seem "egregious."

violent

crime,

unreasonable about the extent

armed

bank

Doe's

prior criminal

The fact that his most recent

robbery,

-2323

involved guns

seems

particularly

relevant in

light of his

crime.

record also

reveals, in

His

serious crimes

oral

argument, it

commission

of

addition to

counted in the criminal

other serious crimes; indeed,

at

present gun-related

crimes,

the two

history score, four

as the government pointed out

reveals

Doe's

interrupted

virtually continuous
only

by

periods

of

incarceration.
Moreover, the Guidelines themselves seem to see in
such circumstances

the basis

Commenting upon criminal

for a significant

departure.

history departures, they

envision

as a candidate for departure

a defendant with an extensive record of
serious, assaultive
conduct who had
received what might now be considered
extremely lenient treatment in the past
. . . . This may be particularly true
in the case of younger defendants . . .
who are more likely to have received
repeated lenient treatment, yet who may
actually
pose
a
greater risk
of
recidivism than older defendants.
U.S.S.G.

4A1.3, comment. (backg'd).

We cannot say that

the

"leeway" the

law

the district court went beyond

provides, Rivera,
______

994

F.2d at

950

(citing Diaz-Villafane, 874 F.2d at 49-50), when it departed

______________
upward

by five levels.

extensive, violent, and

guns.

The defendant's
(like the

prior crimes were

present crime)

involved

The addition of two levels for the defendant's arrest

-24-

24

behavior also seems

extent of

reasonable.

Thus,

the departure, taken as

18 U.S.C.

we cannot find

a whole, "unreasonable."

3742(e)(3).
We

note

Doe's

argument

that

departing, simply applied the Commission's

Guidelines

to him,

post facto clause.

in violation

of the

the

Constitution's ex

reference

After
we are

what that court did.

fully understood the ex post facto problem.

a reason
______

in

more severe 1991

court's statements, however,

convinced that Doe misinterprets

explicitly

court,

See Cousens, 942 F.2d at 801 n.1.

___ _______

reviewing the district

court

the

The

It wrote

that it used the later guidelines not to provide

for departing, but

rather as an

to the Commission's

analogy, through

informed judgment,

that its

grounds and extent of departure were reasonable.

See United
___ ______

States v.
______

Cir. 1990)

Harotunian, 920 F.2d

__________

1040, 1046 (1st

(court

may look

to subsequent

Guidelines

partial guidance to corroborate

conduct

"furnished

departure,

and

as

departure's extent");

court

pointed

guideline to

of

supra
_____

prior bank robbery and

The

its belief" that particular

proper ground

a means

amendments "for

for

comparison

pp. 6-17

discretionary
in fixing

(departure based

the
on

on juvenile conduct is permissible).

out

that,

although

provide an analogy

it

used

the new

to determine how

far down

-2525

the sentencing table's column

level

upward departure

was

VI it should move,
significantly

eight-level increase that the

a

"felon

conviction.

in

possession"
U.S.S.G.

has

less

its fivethan

the

1991 Guidelines specify where

one
___

2K2.1(a)(4),

prior

violent

(7) (1991).

felony

Its final

six year sentence is one year less than the minimum sentence

at

the guideline range that

made

applicable.

later

Guideline

warrants

The fact

the 1991 Guidelines would have

that the Commission

version)

decided

that

does

not bar

higher sentence

finding, prior to the

provides a basis

also (in a
____

certain
the

conduct

court from

Commission's action, that the conduct

for an upward departure.

See Harotunian,
___ __________

920 F.2d at 1046.

Finally,
increased his
that

the

Doe

argues

that

sentence because

"felon in

the

district

it disagreed with

possession"

crime is

not

court

our view
a "violent

felony" that falls within the "mandatory minimum" sentencing

statute
sentence.
did

and would

(in this

case) lead

See Doe, 960 F.2d at 224-26.

___ ___

mention the fact

matter differently.

that other circuits

But

court's statements that

we find

to a

fifteen year

The district court

have decided the

nothing in

the district

warrant Doe's conclusion.

the reasons that led the court

-2626

Rather,

to depart are the reasons it

mentioned and those we

find

no

evidence of

have discussed in this opinion.

an

intent

to

subvert this

court's

earlier decision.
For these reasons, the defendant's sentence is
Affirmed.
________

We

-2727