June 23, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_____________________
No. 92-1749
UNITED STATES,
Appellee,
v.
MIRNA RIVERA,
Defendant, Appellant.
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No. 92-2167
UNITED STATES,
Appellant,
v.
ROBERT ADAMO,
Defendant, Appellee.
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ERRATA SHEET
Please make the following corrections in the opinion in
the above case released on June 4, 1993:
Page 13, 2nd line from bottom: Insert the following
language after the word "state":
that "lack of guidance as a youth" cannot justify
departure, U.S.S.G. 5H1.12, p.s.,
Page 14, lines 4 & 5: insert the following language after
" 5K2.12" and after " 4A1.3":
,p.s.
Page 14, line 10: change the word "eight" to "nine"
Page 16, last line: change "Guideline" to "Guidelines"
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1749
UNITED STATES,
Appellee,
v.
MIRNA RIVERA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
___________________
______________________
No. 92-2167
UNITED STATES,
Appellant,
v.
ROBERT ADAMO,
Defendant, Appellee.
________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
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Campbell and Bownes, Senior Circuit Judges.
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____________________
John M. Cicilline for appellant, Mirna Rivera.
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Margaret E. Curran, Assistant United States Attorney, with whom
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Lincoln C. Almond, United States Attorney, and Zechariah Chafee,
___________________ _________________
Assistant United States Attorney, were on brief for appellee, the
United States of America in No. 92-1749.
Margaret E. Curran, Assistant United States Attorney, with whom
___________________
Lincoln C. Almond, United States Attorney, and Seymour Posner,
___________________ _______________
Assistant United States Attorney, were on brief for appellant, the
United States of America in No. 92-2167.
Eugene V. Mollicone with whom William A. Dimitri, Jr. and Dimitri
___________________ ________________________ _______
& Dimitri were on brief for appellee, Robert Adamo.
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____________________
June 4, 1993
____________________
BREYER, Chief Judge. Each of these two appeals
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concerns the district court's power to impose a sentence
that departs from the Sentencing Guidelines. The first case
involves Mirna Rivera, a single mother of three small
children. Ms. Rivera was convicted of carrying about a
pound of cocaine from New York to Providence. She appeals
her thirty-three month sentence of imprisonment. She argues
that the district court would have departed downward from
the minimum thirty-three month Guidelines prison term but
for the court's view that it lacked the legal "authority" to
depart. She says that this view is legally "incorrect," 18
U.S.C. 3742(f)(1), and she asks us to set aside her
sentence.
The second case involves a union official, Robert
Adamo, who embezzled about $100,000 from his union's Health
and Welfare Fund. The district court departed downward from
the fifteen to twenty-one month prison term that the
Guidelines themselves would have required. Instead, the
court imposed a term of probation without confinement. The
court said that it was departing downward so that Mr. Adamo
could continue to work and to make restitution to the Fund.
The Government appeals. It argues that Adamo's
circumstancesare insufficientlyunusualtowarrantthedeparture.
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4
We agree with the appellants in both cases. In
our view, the district court sentencing Ms. Rivera held an
unduly narrow view of its departure powers. The district
court sentencing Mr. Adamo failed to analyze the need for
departure in the way that the law requires. We consider
both cases in this single opinion because doing so may help
to illustrate an appropriate legal analysis for
"departures." We shall first set forth our view of the
portion of the law here applicable; and we shall then apply
that law to the two appeals.
I
Departures
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The basic theory of the Sentencing Guidelines is a
simple one. In order to lessen the degree to which
different judges imposed different sentences in comparable
cases, an expert Sentencing Commission would write
Guidelines, applicable to most ordinary sentencing
situations. See S. Rep. No. 225, 98th Cong., 2d Sess. 38,
___
51, 161 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3221,
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3234, 3344. In an ordinary situation, the statutes, and the
Guidelines themselves, would require the judge to apply the
appropriate guideline -- a guideline that would normally
cabin, within fairly narrow limits, the judge's power to
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5
choose the length of a prison term. 18 U.S.C.
3553(a),(b). Should the judge face a situation that was not
ordinary, the judge could depart from the Guidelines
sentence, provided that the judge then sets forth the
reasons for departure. 18 U.S.C. 3553(b),(c). A court
of appeals would review the departure for "reasonableness."
18 U.S.C. 3742. And, the Commission itself would collect
and study both the district courts' departure determinations
and the courts of appeals' decisions, thereby learning about
the Guidelines' actual workings and using that knowledge to
help revise or clarify the Guidelines for the future. See
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S. Rep. No. 225, 98th Cong., 2d Sess. 80, 151, reprinted in
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1984 U.S.C.C.A.N. at 3263, 3334; U.S.S.G. Ch. 1, Pt. A,
intro. comment 4(b).
This basic theory is embodied in statutory
provisions and in the Guidelines themselves. We believe it
important to refer to this theory in explaining our own view
of the legal provisions concerning departures, and of how
both district courts and courts of appeals are to apply
them.
A
The Statute
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6
The Sentencing Statute itself sets forth the basic
law governing departures. It tells the sentencing court
that it
shall impose a sentence of the kind, and
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within the range . . . established for
the applicable category of offense
committed by the applicable category of
defendant as set forth in the guidelines
. . . .
18 U.S.C. 3553(b) (incorporating 18 U.S.C. 3553(a)(4))
(emphasis added). The statute goes on immediately to create
an exception for departures by adding that the sentencing
court shall "impose" this Guidelines sentence
unless the court finds that there exists
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an aggravating or mitigating
circumstance of a kind, or to a degree,
not adequately taken into consideration
by the Sentencing Commission in
formulating the guidelines that should
result in a sentence different from that
described.
18 U.S.C. 3553(b) (emphasis added). If the sentencing
court makes this finding and sentences "outside the
[Guidelines] range," it must
state in open court . . . the specific
reason for the imposition of a sentence
different from that described [in the
guidelines].
18 U.S.C. 3553(c). The defendant may then appeal an
upward departure, and the Government may appeal a downward
departure. 18 U.S.C. 3742(a),(b); United States v.
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7
Pighetti, 898 F.2d 3, 4 (1st Cir. 1990) (beneficiary of
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departure decision lacks standing "to complain that the
deviation should have been greater"). On appeal, if
the court of appeals determines that the
sentence . . . is unreasonable, . . . it
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shall state specific reasons for its
conclusions and . . . set aside the
sentence and remand the case for further
sentencing proceedings with such
instructions as the court considers
appropriate.
18 U.S.C. 3742(f) (emphasis added).
The upshot, as we have said, is that in ordinary
cases the district court must apply the Guidelines. In
other cases, the court may depart provided that it gives
reasons for the departure and that the resulting sentence is
"reasonable." The statute refers to those "other cases," as
those where "there exists an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken
into consideration by the Sentencing Commission." But, as
we shall see in a moment, in many cases this statutory
limitation, as a practical matter, will have limited impact,
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because the Commission itself admits that it has not
adequately considered "unusual" cases.
B
The Guidelines
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8
The Guidelines deal with departures in four basic
ways.
1. Cases Outside the "Heartland." The
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Introduction to the Guidelines (which the Commission calls a
"Policy Statement") makes an important distinction between a
"heartland case" and an "unusual case." The Introduction
says that the
Commission intends the sentencing courts
to treat each guideline as carving out a
"heartland," a set of typical cases
embodying the conduct that each
guideline describes.
U.S.S.G. Ch. I, Pt. A, intro. comment. (4)(b). The
Introduction goes on to say that when
a court finds an atypical case, one to
which a particular guideline
linguistically applies, but where
conduct significantly differs from the
norm, the court may consider whether a
departure is warranted.
Id. The Introduction further adds that, with a few stated
___
exceptions,
the Commission does not intend to limit
the kinds of factors, whether or not
mentioned anywhere else in the
guidelines, that could constitute
grounds for departure in an unusual
case.
Id.
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9
The Introduction thus makes clear that (with a few
exceptions) a case that falls outside the linguistically
applicable guideline's "heartland" is a candidate for
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departure. It is, by definition, an "unusual case." And,
the sentencing court may then go on to consider, in light of
the sentencing system's purposes, see 18 U.S.C. 3553(a),
___
(and the Guidelines themselves) whether or not the "unusual"
features of the case justify departure.
It should now be apparent why we believe the
statutory language "adequately taken into consideration"
sometimes has little practical importance. The statute says
that the sentencing court considering a departure must ask
whether the Sentencing Commission has "adequately taken into
consideration" the aggravating or mitigating circumstance
that seems to make a case unusual. But, the Commission
itself has explicitly said that (with a few exceptions) it
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did not "adequately" take unusual cases "into
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consideration." Of course, deciding whether a case is
"unusual" will sometimes prove a difficult matter (in
respect to which particular facts, general experience, the
Guidelines themselves, related statutes, and the general
objectives of sentencing all may be relevant). But, once
the court, see pp. 15-17, infra, has properly determined
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10
that a case is, indeed, "unusual," the case becomes a
candidate for departure, for the Commission itself has
answered the statutory "adequate consideration" question.
The initial version of the Guidelines, at the risk
of redundancy, made this fact absolutely clear. It stated:
The new sentencing statute permits
a court to depart from a guideline-
specified sentence only when it finds
"an aggravating or mitigating
circumstance . . . that was not
adequately taken into consideration by
the Sentencing Commission. . . ." Thus,
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in principle, the Commission, by
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specifying that it had adequately
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considered a particular factor, could
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prevent a court from using it as grounds
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for departure. In this initial set of
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guidelines, however, the Commission does
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not so limit the courts' departure
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powers.
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U.S.S.G. Ch. I, Pt. A, intro. comment. (4)(b) (Oct. 1987)
(emphasis added) (citation omitted). In later versions of
the Guidelines, the Commission eliminated the underscored
language. But, since the "unusual case" statement (i.e.,
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the statement that the "Commission does not intend to limit
the kinds of factors . . . that could constitute grounds for
departure in an unusual case") expresses the same thought,
the excision presumably reflected an intent to avoid
redundancy, not to change the meaning of the section.
Indeed, the Commission has not suggested any intent to
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11
change its meaning. See U.S.S.G. App. C, amend. 307 (Nov.
___
1990) ("language concerning what the Commission, in
principle, might have done is deleted as unnecessary, but no
substantive change is made"). Thus, (with a few exceptions)
the law tells the judge, considering departure, to ask
basically, "Does this case fall within the 'heartland,' or
is it an unusual case?"
2. Encouraged Departures. In certain
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circumstances, the Guidelines offer the district court,
which is considering whether to depart, special assistance,
by specifically encouraging departures. Part 5K lists a
host of considerations that may take a particular case
outside the "heartland" of any individual guideline and, in
doing so, may warrant a departure. See U.S.S.G. 5K2.0,
___
p.s. The individual guidelines do not take account, for
example, of an offender's "diminished capacity," which
circumstance, in the Commission's view would normally
warrant a downward departure. U.S.S.G. 5K2.13, p.s. Nor
do certain guidelines (say, immigration offense guidelines)
take account of, say, use of a gun, which circumstance would
remove the situation (the immigration offense) from that
guideline's "heartland" and would normally warrant an upward
departure. U.S.S.G 5K2.0, 5K2.6, p.s. Specific
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12
individual guidelines may also encourage departures. The
guideline governing transportation of persons for prohibited
sexual conduct, for example, recommends a downward departure
of eight levels where the offense involves neither profit
nor force. U.S.S.G. 2G1.1, comment. (n.1). A sentencing
court facing such non-heartland circumstances can feel
confident, because of this encouragement, that a departure
would not be "unreasonable." 18 U.S.C. 3742(f).
3. Discouraged Departures. The Guidelines
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sometimes discourage departures. Part 5H, for example,
lists various "specific offender" characteristics, such as
age, education, employment record, family ties and
responsibilities, mental and physical conditions, and
various good works. The Guidelines say that these features
are "not ordinarily relevant" in determining departures.
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U.S.S.G. Ch. 5, Pt. H (emphasis added). The Commission
thereby recognizes that (1) the individual guidelines (with
a few exceptions) do not provide adjustments reflecting such
circumstances, yet (2) this fact alone does not make such
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circumstances automatically sufficient to transform a
"heartland" case into an "unusual" case outside the
heartland.
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13
At the same time, the Commission recognizes that
such circumstances could remove a case from the heartland,
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but only if they are present in a manner that is unusual or
special, rather than "ordinary." See United States v.
___ _____________
Merritt, No. 91-1637, slip op. at 25-26 (2d Cir. Feb. 9,
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1993). It may not be unusual, for example, to find that a
convicted drug offender is a single mother with family
responsibilities, but, at some point, the nature and
magnitude of family responsibilities (many children? with
handicaps? no money? no place for children to go?) may
transform the "ordinary" case of such circumstances into a
case that is not at all ordinary.
Thus, a sentencing court, considering whether or
not the presence of these "discouraged" factors warrants
departure, must ask whether the factors themselves are
present in unusual kind or degree. The Commission, in
stating that those factors do not "ordinarily" take a case
outside the heartland, discourages, but does not absolutely
forbid, their use. See, e.g., Merritt, slip op. at 25-26;
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United States v. Deigert, 916 F.2d 916, 918-19 (4th Cir.
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1990). But see United States v. Thomas, 930 F.2d 526, 529-
_______ _____________ ______
30 (7th Cir.) (forbidding departures based on family
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14
responsibilities, except where probation or fines are at
issue), cert. denied, 112 S. Ct. 171 (1991).
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4. Forbidden Departures. The Commission has
____________________
made several explicit exceptions to the basic principle that
a sentencing court can consider any "unusual case" (any case
outside the heartland) as a candidate for departure. The
Guidelines state that "lack of guidance as a youth" cannot
justify departure, U.S.S.G. 5H1.12, p.s., that a
sentencing court "cannot take into account as grounds for
departure" race, sex, national origin, creed, religion, and
socio-economic status. U.S.S.G. 5H1.10, p.s. The
Guidelines also state that drug or alcohol abuse is not a
reason for imposing a sentence below the Guidelines range,
U.S.S.G 5H1.4, p.s., and that personal financial
difficulties and economic pressure upon a trade or business
do not warrant a decrease in sentence. U.S.S.G. 5K2.12,
p.s.; cf. Williams v. United States, 112 S. Ct. 1112, 1117
___ ________ _____________
(1992) (under U.S.S.G. 4A1.3,p.s., prior arrest record
cannot provide reliable evidence of prior criminal conduct
warranting upward departure). Thus, even if these factors
make a case "unusual," taking it outside an individual
guideline's heartland, the sentencing court is not free to
consider departing. But, with these nine exceptions, the
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sentencing court is free to consider, in an unusual case,
whether or not the factors that make it unusual (which
remove it from the heartland) are present in sufficient kind
or degree to warrant a departure. See U.S.S.G. Ch. I, Pt.
___
A, intro. comment. 4(b). The court retains this freedom to
depart whether such departure is encouraged, discouraged, or
unconsidered by the Guidelines.
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C
The Sentencing Court's Departure Decision
_________________________________________
Given the statutory provisions, and the relevant
Guidelines statements, we suggest (but we do not require)
that, as an initial matter, a sentencing court considering
departure analyze the case along the following lines:
1) What features of this case,
potentially, take it outside the
Guidelines' "heartland" and make of it a
special, or unusual, case?
2) Has the Commission forbidden
departures based on those features?
3) If not, has the Commission encouraged
departures based on those features?
4) If not, has the Commission
discouraged departures based on those
features?
If no special features are present, or if special features
are also "forbidden" features, then the sentencing court, in
all likelihood, simply would apply the relevant guidelines.
If the special features are "encouraged" features, the court
would likely depart, sentencing in accordance with the
Guidelines' suggestions. If the special features are
"discouraged" features, the court would go on to decide
whether the case is nonetheless not "ordinary," i.e.,
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whether the case differs from the ordinary case in which
those features are present. If the case is ordinary, the
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17
court would not depart. If it is not ordinary, the court
would go on to consider departure.
Of course, this analysis, by itself, does not help
the district court decide what to do in situations where the
Guidelines do not expressly forbid, encourage, or
discourage, departures. The Guidelines themselves recognize
that the "[c]ircumstances that may warrant departure from
the guidelines . . . cannot, by their very nature, be
comprehensively listed and analyzed in advance." U.S.S.G.
5K2.0, p.s. When such unforeseen circumstances arise, the
district court will decide whether to depart (and, if so,
how much to depart) by examining the "unusual" nature of
these circumstances and making a judgment about what is
appropriate. The structure and theory of both relevant
individual guidelines and the Guidelines taken as a whole
may inform that judgment. The sentencing statute also lists
generally relevant sentencing factors, including the "nature
and circumstances of the offense," the "history and
characteristics of the defendant," and the basic purposes of
sentencing, namely, just punishment, deterrence,
incapacitation and rehabilitation. 18 U.S.C. 3553(a);
United States v. Merritt, slip op. at 18-19, 25-26 (citing
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Daniel J. Freed, Federal Sentencing in the Wake of
_______________________________________
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18
Guidelines: Unacceptable Limits on the Discretion of
____________________________________________________________
Sentencers, 101 Yale L.J. 1681, 1700, 1730-31 (1992)).
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Ultimately, however, the Guidelines cannot dictate how
courts should sentence in such special, unusual or other-
than-ordinary circumstances. And, that is as it should be.
As we have said, see pp. 4-5, supra, the very theory of the
___ _____
Guidelines system is that when courts, drawing upon
experience and informed judgment in such cases, decide to
depart, they will explain their departures. The courts of
appeals, and the Sentencing Commission, will examine, and
learn from, those reasons. And, the resulting knowledge
will help the Commission to change, to refine, and to
improve, the Guidelines themselves. That is the theory of
partnership that the Guidelines embody.
D
Review on Appeal
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If the district court decides to depart, the
defendant may appeal (an upward departure) or the Government
may appeal (a downward departure). 18 U.S.C. 3742(a),(b);
see also United States v. Pighetti, 898 F.2d at 4. The
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statute then provides the appellate court with two important
instructions. First, the court of appeals must decide if
the resulting sentence is "unreasonable, having regard for"
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the sentencing court's reasons and the statute's general
sentencing factors. 18 U.S.C. 3742(e)(3). Second, the
court of appeals must (as it ordinarily does) give "specific
reasons" for its decision. 18 U.S.C. 3742(f)(2). These
two instructions, taken together, help assure that the
courts of appeals, with their more distant, yet broader,
perspective, will also play an important indirect (as well
as the obvious direct) role in the further development of
Guidelines. They play this "indirect role" as the
Commission examines the courts of appeals' decisions and
reacts, through revision, or reiteration, of the Guidelines.
The result is a partnership in which each partner
enjoys a different institutional strength. The district
court may best understand the relation of the Guidelines to
case-specific, detailed facts. Its experience permits it
directly to form a judgment as to when certain kinds of
circumstances seem better handled by judicial discretion and
how courts ought to exercise that discretion. At the other
end of the spectrum, the Sentencing Commission, by gathering
information produced by many individual courts, can view the
sentencing process as a whole, developing a broad
perspective on sentencing, which will help it produce more
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consistent sentencing results among similarly situated
offenders sentenced by different courts. The courts of
appeals see sentences from an intermediate vantage point.
They devote considerable time and effort to a district
court's determination in a particular case, while, at the
same time, placing that case within a broader perspective of
sentencing law.
Recognizing this relationship, we have held that
appellate courts must recognize a degree of district court
autonomy when they review certain aspects of the departure
decision. In United States v. Diaz-Villafane, 874 F.2d 43
_____________ ______________
(1st Cir.) cert. denied, 493 U.S. 862 (1989), we pointed out
____________
that appellate review of a decision to depart may involve
three subsidiary questions: 1) review of the departure-
related circumstances to determine "whether or not" they
"are of a kind or degree that they may appropriately be
relied upon to justify departure;" 2) review of the
evidence to see if it supports the departure-related
findings of fact; and 3) review of the "record support" for
"the direction and degree" of departure. Id. at 49. We
___
held that in the second, and the third, instance, an appeals
court must allow the district court a degree of "leeway."
Review of factfinding is for "clear error." Id. Review of
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departure "direction and degree" will take place with "full
awareness of, and respect for" the sentencing court's
"superior 'feel' for the case." Id. at 50; see also Bruce M.
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Selya & Matthew R. Kipp, An Examination of Emerging
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Departure Jurisprudence Under the Federal Sentencing
____________________________________________________________
Guidelines, 67 Notre Dame L. Rev. 1, 39-40 (1991).
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We also stated, however, that in respect to the
first matter ("whether or not" the circumstances "are of a
kind or degree" to warrant a departure), our appellate
review was "essentially plenary." Diaz-Villafane 874 F.2d at
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49. This phrase suggested review that provides no "leeway"
for the district court. We now consider it necessary to
elaborate our meaning and to modify, somewhat, our
application of Diaz-Villafane in later cases. See United
______________ ___ ______
States v. Carr, 932 F.2d 67, 72 (1st Cir.), cert. denied,
______ ____ ____________
112 S. Ct. 112 (1991); United States v. Pozzy, 902 F.2d 133,
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138 (1st Cir.), cert. denied, 498 U.S. 943 (1990). (Through
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circulation of a draft opinion, we have obtained approval of
all active judges for doing so. See, e.g., Trailer Marine
___ ____ ______________
Transport Corp. v. Rivera Vasquez, 977 F.2d 1, 9 n. 5 (1st
_______________ ______________
Cir. 1992)). Our elaboration, and modification, consists of
distinguishing certain decisions in this category where
review should take place without "leeway," from others
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where, despite the technically legal nature of the question,
we nonetheless should review with "full . . . respect for"
the sentencing court's "superior 'feel' for the case."
Diaz-Villafane, 874 F.2d at 50. We recognize that
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application of our elaboration and modification to earlier
decided cases might have meant different results.
Plenary review is appropriate where the question
on review is simply whether or not the allegedly special
circumstances (i.e., the reasons for departure) are of the
"kind" that the Guidelines, in principle, permit the
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sentencing court to consider at all. As we have previously
pointed out, departures for some reasons are "forbidden,"
see pp. 13-14, supra, and departures for certain other
___ _____
reasons are "discouraged" unless the case is out of the
ordinary, see pp. 12-13, supra. Were a district court (1)
___ _____
to try to depart for a "forbidden" reason, or were it (2) to
try to depart for a "discouraged" reason without recognizing
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that it must explain how the case (compared to other cases
____________________________________________________________
where the reason is present) is special, its departure would
_______________________________________
not be lawful. The district court has no special expertise
in deciding whether a factor is "forbidden" or
"discouraged." Hence, there is no reason to review such a
decision with any "leeway" or "deference."
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Plenary review is also appropriate where the
appellate court, in deciding whether the allegedly special
circumstances are of a "kind" that permits departure, will
have to perform the "quintessentially legal" function, see
___
Diaz-Villafane, 874 F.2d at 49, of interpreting a set of
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words, those of an individual guideline, in light of their
intention or purpose, in order to identify the nature of the
guideline's "heartland" (to see if the allegedly special
circumstance falls within it). Is the "child pornography"
guideline, for example, aimed only at child pornography
consumers who are also child molesters, so that a purchaser
who is not also a molester falls outside its "heartland?"
See United States v. Studley, 907 F.2d 254, 258 (1st Cir.
___ _____________ _______
1990) (the fact that recipient of child pornography was not
also a child molester does not make the case unusual nor
remove it from the heartland of the child pornography
guideline); United States v. Deane, 914 F.2d 11, 14 (1st
_____________ _____
Cir. 1990) (following Studley). Here, again, the district
_______
court has no special competence in performing this kind of
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classical textual analysis. Hence, a reviewing court,
deciding whether the district court has "incorrectly
applied" a guideline, 18 U.S.C. 3742(f)(1); Williams v.
________
United States, 112 S. Ct. 1112, 1120 (1992), need not give
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the district court's answer to a question involving this
kind of analysis any special weight.
In many other instances, not anticipated by Diaz-
_____
Villafane, the district court's decision that circumstances
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are of a "kind," or "degree," that warrant departure will
not involve a "quintessentially legal" interpretation of the
___
words of a guideline, but rather will amount 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. A district
court may well have a special competence in making this kind
of determination, because it may have a better "feel" for
the unique circumstances of the particular case before it.
A district court is also likely to have seen more ordinary
________
Guidelines cases, for appellate courts hear only the
comparatively few cases that counsel believe present a
colorable appeal. See The Federal Sentencing Guidelines: A
___ _____________________________________
Report on the Operations of the Guidelines System 49, 245
___________________________________________________
(December 1991) (85% of Guidelines sentences not appealed).
To ignore the district court's special competence -- about
the "ordinariness" or "unusualness" of a particular case --
would risk depriving the Sentencing Commission of an
important source of information, namely, the reactions of
-25-
25
the trial judge to the fact-specific circumstances of the
case, which reactions, reduced to written reasons for
departure, can help the Commission determine whether, and
how, Guidelines revision should take place. See p. 5,
___
supra; U.S.S.G. Ch.1, Pt. A intro. comment. (4)(b). Thus,
_____
appellate courts should review the district court's
determination of "unusualness" with "full awareness of, and
respect for, the trier's superior 'feel' for the case,"
Diaz-Villafane, 874 F.2d at 50, not with the understanding
______________
that review is "plenary." Contra United States v. Carr, 932
______ _____________ ____
F.2d at 72; United States v. Pozzy, 902 F.2d at 138.
_____________ _____
As we have said, Diaz-Villafane mandated appellate
______________
court "respect" for sentencing court determinations of fact
and of "direction and degree." We now extend that "respect"
to sentencing court determinations of whether (and the
extent to which) given circumstances make a case "unusual"
or "not ordinary." We believe this view consistent with the
Supreme Court's recent statement that,
except to the extent specifically
directed by statute, "it is not the role
of an appellate court to substitute its
judgment for that of the sentencing
court as to the appropriateness of a
particular sentence."
Williams v. United States, 112 S. Ct. at 1121 (quoting Solem
________ _____________ _____
v. Helm, 463 U.S. 277, 290 n.16 (1983)); see also Wiliam W.
____ ________
-26-
26
Wilkins, Jr., Sentencing Reform and Appellate Review, 46
________________________________________
Wash. & Lee L. Rev. 429, 443 (1989) (it is not "appropriate
for the appellate court to simply substitute its judgment de
__
novo for that of the sentencing court"). Our view is also
____
consistent with Congress' instruction that appeals courts
"shall affirm" reasonable departures. 18 U.S.C.
3742(f)(2)-(3). And, it is consistent with appellate court
efforts generally to conduct judicial review in light of
comparative institutional competence. Cf. United States v.
___ _____________
Wright, 873 F.2d 437, 444 (1st Cir. 1989) (deferential
______
review under Guidelines where issue is "one that is founded
'on the application of the fact-finding tribunal's
experience with the mainsprings of human conduct'") (quoting
United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.),
_____________ ________
cert. denied 469 U.S. 824 (1984)) (citation omitted);
_____________
Mayburg v. Secretary of Health & Human Servs., 740 F.2d 100,
_______ __________________________________
105-07 (1st Cir. 1984); see also INS v. Cardoza-Fonseca, 480
________ ___ _______________
U.S. 421, 445-48 (1987) (citing Chevron U.S.A., Inc. v.
_____________________
Natural Resources Defense Council, Inc., 467 U.S. 837, 843,
________________________________________
n.9 (1984)).
II
Applying the Analysis
_____________________
-27-
27
We now apply our "departure" analysis to the
circumstances of the two cases before us, the appeal of Ms.
Mirna Rivera, and that of Mr. Robert Adamo.
-28-
28
A
Mirna Rivera
____________
For purposes of this appeal, we take Ms. Rivera to
have transported about one pound of cocaine, from New York
to Providence, with intent to distribute it, in violation of
21 U.S.C. 841(a)(1), (b)(1)(B). The Guidelines provide a
sentence of 33 to 41 months imprisonment for a first time
offender who has engaged in this conduct. See U.S.S.G.
___
2D1.1(a)(3)(c)(10) (base offense level of 24); U.S.S.G.
3B1.2(a) (reduction of 4 points for minimal
participation); U.S.S.G. Ch. 5, Pt. A (sentencing table).
Ms. Rivera argued to the district court that it should
depart downward from this Guidelines sentence for the
following reasons:
1) she has three small children, ages
three, five, and six, who need a
mother's care;
2) she lives solely on welfare,
receiving no financial aid from her
former husband;
3) she has virtually no contact with any
other family member (except for a
sister, with five children, also on
welfare);
4) she has never before engaged in any
criminal activity;
and,
-29-
29
5) she committed this single offense
because of an unwise wish to obtain
money for Christmas presents for her
children.
The district court decided not to depart. Rivera claims
that this decision reflects the court's incorrect belief
that it lacked the legal authority to depart. And, she asks
us to order a new proceeding. See United States v.
___ ______________
Castiello, 915 F.2d 1, 5-6 (1st Cir. 1990) (new proceeding
_________
needed where district court wrongly thought it lacked legal
power to depart, but not where it simply chose not to
exercise this authority), cert. denied, 111 S. Ct. 787
_____________
(1991).
After reviewing the record of the sentencing
proceeding, we conclude that Rivera is correct. The
district court's analysis of the nature of its power to
depart is not consistent with the view of departures that we
set forth in this opinion. We recognize a difference
between "forbidden departures," see pp. 13-14, supra, and
___ _____
"discouraged departures," see pp. 12-13, supra. And, we
___ _____
believe that the district court did not realize that it had
the legal power to consider departure, where departure is
discouraged (but not forbidden), if it finds features of the
case that show it is not ordinary. See pp. 12-13, supra.
___ _____
-30-
30
At the sentencing hearing, the district court
said:
With respect to Defendant's argument
that the Defendant's family situation,
economic situation, warrants a
departure, I must say that the
guidelines are drawn to apply to
everyone in exactly the same way, that
it is clear from the guidelines that the
economic situation and the family
situation of the Defendant is not a
consideration. There are those who
certainly would disagree with that, but
that is the principle that is embodied
in the guidelines. They are age blind,
__________________
they are sex blind, they are blind to
_________ ________
family circumstances, and can result in
____________________
their application in a certain amount of
cruelty. But, that isn't a basis for
making a departure. It's a situation
_________________
where somebody tries to draw a straight
________________________________________
line that applies to every situation
________________________________________
that can possibly arise and this Court
________________________________________
is without discretion to take what might
________________________________________
well be thought by most people, at
________________________________________
least, legitimate concerns into
________________________________________
consideration. Simply put, I can't do
______________ ___________
that because the guidelines do not
________________________________________
permit me to do that. So that
___________________________
Defendant's objection or request to make
a downward departure is denied . . . .
Your Counsel says that a court somewhere
observed that these guidelines are not a
straightjacket for a District Court.
Well, I don't agree with that. Here is
a circumstance where I'm satisfied that
the reason you did this was to buy toys
for your children at Christmas. It was
a serious mistake. The pre-sentence
report says this:
There is no information
suggesting that Ms. Rivera had
-31-
31
any previous participation in
a similar type criminal
activity. The Defendant's
lifestyle is not indicative of
that of a drug dealer who has
profited from ongoing criminal
activity. Rather she appears
destitute, relying on public
assistance to support herself
and her children.
. . . If I had the authority to do it, I
__________________________________
would not impose the sentence that I am
________________________________________
about to impose. I would impose a
__________________
lesser sentence because I think that
these guidelines simply are unrealistic
when applied to real life situations
like this. They may work in many
_________________________
circumstances, but they certainly don't
________________________________________
work here.
__________
(Emphasis added).
In these statements, the court repeatedly said
that it lacked the legal power to depart; it characterized
the case before it as different from the "many
circumstances" where the Guidelines might work; it added
that it would depart if it could; it set forth several
circumstances that might make the case a special one; and it
described as identical ("sex blind" and "blind to family
circumstances") guidelines that, in fact, differ
significantly, the former involving a "forbidden" departure,
and the latter a "discouraged" departure. Compare U.S.S.G.
_______
5H1.10, p.s. with 5H1.6, p.s; compare also pp. 13-14,
____ _____________
supra with pp. 12-13, supra. Taken together, these features
_____ ____ _____
-32-
32
of the case warrant a new sentencing proceeding, conducted
with the district court fully aware of its power to depart
in "unusual cases" and where family circumstances are out of
the "ordinary."
Of course, we should not (and would not) order a
new proceeding were the proceeding pointless, i.e., were
____
there no significant possibility that the facts and
circumstances would permit the district court lawfully to
order a departure. See United States v. Rushby, 936 F.2d
___ _____________ ______
41, 42 (1st Cir. 1991). Yet, we cannot say this is so. We
have examined the case law and found several cases
permitting departure in similar, or even less sympathetic,
circumstances. See United States v. Johnson, 964 F.2d 124,
___ _____________ _______
128-30 (2d Cir. 1992) (sole responsibility for raising four
children); United States v. Alba, 933 F.2d 1117, 1122 (2d
______________ ____
Cir. 1991) (twelve-year marriage, two children, living with
disabled, dependent father and grandmother); United States
_____________
v. Pena, 930 F.2d 1486, 1494-95 (10th Cir. 1991) (single
____
parent of infant and sole supporter of sixteen-year-old
daughter and daughter's infant); United States v. Big Crow,
_____________ ________
898 F.2d 1326, 1331-32 (8th Cir. 1990) (solid family and
community ties and "consistent efforts to lead a decent life
in [the] difficult environment" of an Indian reservation).
-33-
33
See also United States v. Gaskill, No. 92-5588, slip op.(3d
___ ____ _____________ _______
Cir. April 16, 1993) (defendant's responsibilities for
mentally ill wife might justify departure).
We have also found many cases forbidding
departures for reasons related to family responsibilities,
but they seem to involve circumstances less compelling than
those before us. See United States v. Chestna, 962 F.2d
___ _____________ _______
103, 107 (1st Cir.), cert. denied, 113 S. Ct. 334 (1992)
_____________
(defendant was single mother of four children); United
______
States v. Mogel, 956 F.2d 1555, 1565 (11th Cir.) (defendant
______ _____
supported two minor children and live-in mother), cert.
_____
denied, 113 S. Ct. 167 (1992); United States v. Cacho, 951
______ _____________ _____
F.2d 308, 311 (11th Cir. 1992) (defendant had four small
children); United States v. Berlier, 948 F.2d 1093, 1096
_____________ _______
(9th Cir. 1991) (defendant sought to keep family together);
United States v. Carr, 932 F.2d 67, 72 (1st Cir.)
_______________ ____
(codefendants were parents of young child), cert. denied,
____________
112 S. Ct. 112 (1991); United States v. Shoupe, 929 F.2d
_____________ ______
116, 121 (3d Cir.) (defendant was father who regularly made
child support payments and frequently spoke with young son
living with ex-wife), cert. denied, 112 S. Ct. 382 (1991);
____________
United States v. Brand, 907 F.2d 31, 33 (4th Cir.)
______________ _____
(defendant was sole custodial parent of two children), cert.
_____
-34-
34
denied, 498 U.S. 1014 (1990); United States v. Neil, 903
______ _____________ ____
F.2d 564, 566 (8th Cir. 1990) (defendant had stable family
life); United States v. Pozzy, 902 F.2d 133, 139 (1st Cir.)
_____________ _____
(defendant pregnant and husband imprisoned), cert. denied,
_____________
498 U.S. 943 (1990); United States v. Brewer, 899 F.2d 503,
_____________ ______
508-09 (6th Cir.) (defendant was mother of young children),
cert. denied, 498 U.S. 844 (1990).
____________
The upshot is a difficult departure decision. On
the one hand lie a host of quite special circumstances
(though many are of the "discouraged" sort), and on the
other hand lies the simple fact that Ms. Mirna Rivera did
transport a pound of cocaine from New York to Providence.
This is the kind of case in which, if the district court
departs, its informed views as to why the case is special
would seem especially useful and would warrant appellate
court "respect." See pp. 23-24, supra.
___ _____
We remand the case for further proceedings.
B
Robert Adamo
____________
Mr. Adamo was convicted of embezzling about
$100,000 belonging to the union Health and Welfare Fund of
which he was a fiduciary, in violation of 18 U.S.C. 664.
He accepted responsibility for the crime, U.S.S.G. 3E1.1.
-35-
35
It was his first offense. The Guidelines provided a minimum
prison term of fifteen months. See U.S.S.G. 2E5.2,
___
2B1.1, 3B1.3 (base offense level of 4; increase of 8 points
for amount of loss; 2 level enhancement for more than
minimal planning; 2 level enhancement for fiduciary);
U.S.S.G. Ch. 5, Pt. A (sentencing table). The district
court, departing downward from the Guidelines, sentenced Mr.
Adamo to probation alone, without any imprisonment.
The court gave the following reasons for its
downward departure:
When I look at these cases of
sentencing, the first thing I ask myself
is, "What sentence would I impose if
there were no guidelines?" That's what
I did for more than 20 years. And then
I ask myself, "What's a just sentence in
these circumstances? Am I going to be
limited by these artificial guidelines
made by people who have no idea of what
kind of a case I'm going to have to
decide?" No two cases are the same. . .
.
So that's where justice is in this
case, having restitution made to this
Health & Welfare Fund. If I send this
defendant to prison I think it's
foreordained that restitution will not
be made. It may be made in some
respect, but I'm sure the defendant
would lose both his jobs and would find
it very difficult to have employment
which would allow him to make
restitution. And a time in prison would
serve no useful purpose in this case.
The only factor in sentencing which
-36-
36
would be accomplished is punishment, but
the defendant has been punished just by
being here -- just being here and what
he's gone through in the last 6 months,
and the notoriety of this. So,
imprisonment serves no useful purpose in
this case. It certainly isn't a matter
of deterrence. I'm sure the defendant
will never do anything like this again.
Here is a man who has lived an
exemplary life, he's worked two jobs to
take care of his family. His wife has
worked, and although they were making in
the range of $70,000 a year, the problem
of educating two children came up. It's
a problem that everyone faces. This is
where the error of judgment comes in.
He took this money, not out of greed,
not out of desire to own a fancy car or
a palatial home and a boat, but to
educate his children. He didn't think
about the other alternatives. His
daughter wanted to go to an expensive
private school, instead of going to a
local state school of some sort, and he
thought that's what she should have. He
didn't consider loans and other types of
programs. This money was available, he
took it -- a terrible mistake. But
that's the only mistake that he seems to
have made, and I just don't think he
should spend time in prison because of
this one mistake.
I want restitution made, so I'm
going to exercise my best judgment in
these circumstances. My best judgment
is to have as long a term of probation
as possible so that restitution can be
made with the guidance of the probation
office.
So, I'm going to depart downward
and impose a term of probation of 5
years. That's the maximum that I can
-37-
37
impose. And one of the conditions of
probation will be, and is, that the
defendant shall pay restitution in the
amount of $91,125.62 to the Health &
Welfare Fund of the Building Service
Employees International Union, AFL-CIO
Local 334.
The court's explication of its reasons is useful,
for it produces understanding and permits evaluation, both
by appellate courts and by the Commission. We nonetheless
believe the analysis does not permit the departure before
us.
First, we believe (deciding the question as a pure
matter of law, see pp. 21-22, supra) that the embezzlement
___ _____
guidelines encompass, within their "heartland," embezzlement
accompanied by normal restitution needs and practicalities
______
(i.e., the simple facts that restitution is desirable and
____
that a prison term will make restitution harder to achieve).
It would seem obvious, and no one denies, that the
embezzlement guidelines are written for ordinary cases of
embezzlement, that restitution is called for in many such
cases, and that prison terms often make restitution somewhat
more difficult to achieve. Moreover, the embezzlement
guideline reflects the Commission's intent to equalize
punishments for "white collar" and "blue collar" crime. See
___
United States Sentencing Commission, Supplementary Report on
_______________________
-38-
38
the Initial Sentencing Guidelines and Policy Statements 18
_________________________________________________________
(1987); Hearings Before the Senate Comm. on the Judiciary,
___________________________________________________
100th Cong., 1st Sess. 54-55 (October 22, 1987). Yet, as
the Sixth Circuit has pointed out,
a rule permitting greater leniency in
sentencing in those cases in which
restitution is at issue and is a
___
meaningful possibility (i.e., generally
white collar crimes) would . . . nurture
the unfortunate practice of disparate
sentencing based on socio-economic
status, which the guidelines were
intended to supplant.
United States v. Harpst, 949 F.2d 860, 863 (6th Cir. 1991)
_____________ ______
(citing U.S.S.G. 5H1.10, p.s. (socio-economic status not
relevant in determination of sentence)). Further, the
district court itself, stating that it did not wish "to be
limited by these artificial guidelines," and that "no two
cases are alike," seemed to disregard, rather than to deny,
the scope of the embezzlement guideline. For these reasons,
we join the Fourth and Sixth Circuits, in holding that
ordinary restitution circumstances of this sort do not fall
________
outside the embezzlement guideline's "heartland," and
therefore do not warrant a downward departure. See Harpst,
___ ______
949 F.2d at 863; United States v. Bolden, 889 F.2d 1336,
______________ ______
1340 (4th Cir. 1989).
-39-
39
Second, we recognize that a special need of a
_______
victim for restitution, and the surrounding practicalities,
might, in an unusual case, justify a departure. But, we
cannot review a district court determination to that effect
here, for the district court made no such determination.
(Although, had it done so, we would have treated its
determination with "respect." See pp. 23-24, supra.) We
___ _____
mention this fact because the defendant has pointed to one
unusual feature of the case. The record before us contains
a suggestion that Mr. Adamo could keep his job (and
therefore remain able to make restitution) were his prison
term only one year, but he could not keep his job (and thus
would lose his ability to make restitution) were he
sentenced to the Guidelines prison term of one year and
three months. We can imagine an argument for departure
resting upon a strong need for restitution, an important
practical advantage to the lesser sentence, and a departure
limited to three months.
We are not urging such a departure or saying that
we would eventually find it lawful. We mention the special
circumstance to underscore the need for reasoned departure
analysis, sensitive to the way in which the Guidelines seek
to structure departure decisions and to the role that such
-40-
40
departures, and their accompanying reasons, can play in the
continued development of the Sentencing Guidelines. We have
explained why the district court's analysis, about how the
features of a case make it unusual, can help both reviewing
courts and the Commission itself. See pp. 4-5, 18-19,
___
supra. The district court, in Mr. Adamo's case, may wish to
_____
conduct such an analysis in light of the special features of
the case to which the defendant has pointed.
We therefore remand this case for new sentencing
proceedings.
The sentences in both cases are vacated and the
__________________________________________________
cases are remanded to the district court for resentencing.
__________________________________________________________
So ordered.
___________
-41-
41