United States v. Lombard

United States Court of Appeals
For the First Circuit

No. 94-2000

UNITED STATES OF AMERICA,

Appellee,

v.

HENRY LOMBARD,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]

Before

Torruella, Chief Judge,

Stahl and Lynch, Circuit Judges.

F. Mark Terison, Assistant United States Attorney, with whom Jay

P. McCloskey, United States Attorney, was on brief, for the United

States.

Jane E. Lee, by appointment of the court, for appellant.

December 15, 1995

LYNCH, Circuit Judge. Henry Lombard, Jr. and
LYNCH, Circuit Judge.

Hubert Hartley were tried separately in the Maine Superior

Court in 1992 on charges of murdering two men. Each was

acquitted. Afterward, Lombard and Hartley were indicted as

co-defendants in the federal district court in Maine on

federal firearms and other charges arising out of the

murders. Hartley pleaded guilty at mid-trial, but appellant

Lombard entrusted his fate to the jury. He was convicted.

At sentencing, under the Guidelines, the district

court found by a preponderance of the evidence that Lombard

had used his illegally possessed firearm to commit "another

offense": the same murders of which he had been acquitted in

the state court. The resulting Guidelines sentence was a

mandatory term of life in prison, which Maine law would not

have required even had defendant been convicted of the

murders. Lombard thus received a life sentence based on the

federal court's finding that it was more likely than not that

Lombard had committed the murders of which he had been

acquitted. The sentencing judge was greatly troubled but

felt as a matter of law that he had no authority to do

otherwise under the Guidelines.

Lombard appeals the mandatory life sentence and his

convictions. We affirm the convictions for the reasons

stated later. We address first the very troubling sentencing

issue. Finding that this is a case in which the life

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sentence enhancement is the "tail which wags the dog" of

defendant's trial and conviction, thus raising constitutional

due process concerns, we hold that under section 5K2.0 of the

Guidelines the district court had the authority, which it

thought it had not, to consider a downward departure. We

vacate the life sentence and remand for a determination of

whether a downward departure might be warranted in the unique

circumstances here.

I

Background

On Thanksgiving morning of 1990, Morris Martin and

Paul Lindsey, Jr. were murdered, each shot in the head as he

lay sleeping in the living room of a small cabin in the

backwoods of Fairfield, Maine. The cabin was owned by Hubert

Hartley, the half-brother of the defendant Henry Lombard.

All four men had been living in the cabin for a week to hunt

deer in the surrounding woods. Tammy Theriault, Hartley's

girlfriend, had also been living in the cabin, along with her

eighteen month old daughter. She was also pregnant with

Hartley's child at the time. Theriault was a near-eyewitness

to the murders, able to hear and observe much through a hole

in the floor of her upstairs bedroom.

Lombard and Hartley were tried separately on state

charges of murder before two juries in the Maine Superior

Court. Each defendant testified in his own defense and

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claimed that the other had committed the murders. Hartley

and Theriault testified against Lombard at Lombard's trial.

Both state trials resulted in acquittals.

One year later, a federal grand jury returned an

indictment in the U.S. District Court, charging Hartley and

Lombard with unlawful possession of a firearm, aiding and

abetting the same, and with conspiracy charges relating to

the aftermath of the murders.1 Lombard and Hartley were

tried jointly in the federal district court. The

prosecution's key witness was Tammy Theriault. Her testimony

departed in some respects from the testimony and statements

she gave earlier. She testified, as follows, that although

she did not see the murders being committed, she did hear

conversations between Hartley and Lombard just before and

after the gunshots were fired. At about 10 a.m. on

Thanksgiving morning, Lombard and Hartley returned to the

cabin from a morning hunt. Martin and Lindsey were asleep on

1. Count 1 of the indictment charged Hartley and Lombard
with a multi-part conspiracy with the following objectives:
unlawfully to possess and aid and abet the unlawful
possession of a firearm and ammunition in violation of 18
U.S.C. 922(g)(1); to cross state lines with intent to avoid
prosecution or avoid giving testimony in a criminal
proceeding in violation of 18 U.S.C. 1073; and to remove
and transport from Hartley's cabin certain evidence of
Lombard's unlawful possession of a firearm and ammunition, in
violation of 18 U.S.C. 2232(a). Count 2 charged Lombard
with unlawful possession of a firearm in violation of 18
U.S.C. 922(g), 924(e). Count 3 charged Hartley with
aiding and abetting Lombard in the unlawful possession of a
firearm, in violation of 18 U.S.C. 922(g)(1)-(2).

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couches in the living room. Hartley, seeing Theriault, told

her to go back upstairs because he and Lombard "had something

to do." On returning to her room, she heard Lombard say to

Hartley, "[I]f you don't shoot him, I'm going to shoot 'em

both." Next, Theriault, still upstairs with her baby

daughter, heard five or six gunshots, followed by Lombard's

exclamation, "I didn't think you had the guts to do it."

Hartley boasted, "I showed you, didn't I?" and added, "I

don't think he's dead yet. Shoot him again."

Lombard and Hartley stuffed the victims' bodies in

garbage bags, as Theriault watched through the hole in her

bedroom floor. Theriault was with Lombard and Hartley as

they cleaned the cabin of blood and other evidence, and hid

the bodies temporarily in the cellar. The next day, as the

two men were attempting to move the bodies to the trunk of

Hartley's car, Theriault's family arrived to bring

Thanksgiving leftovers. They sat visiting in the living

room, with one victim's body hidden in the trunk of Hartley's

car outside, the other still in the cellar. Theriault

accompanied Lombard and Hartley when they later went to dump

both bodies in a roadside bog. She was also present when

Lombard sold his Marlin .22 caliber rifle as well as the

victims' two hunting guns to a broker. Lombard and Hartley

were planning to flee from Maine to Massachusetts just before

they were arrested.

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Excerpts of testimony that Hartley and Lombard had

given in their state court murder trials were also admitted

into evidence. These excerpts (including Lombard's own prior

testimony) corroborated much of Theriault's account and

established that Lombard owned a Marlin .22 caliber rifle

which he had brought to Hartley's cabin, that he loaded it on

the morning of Thanksgiving Day, 1990, that he took the gun

with him to go hunting that morning, and that Lombard and

Hartley together attempted to clean the bloody cabin

following the murders, removed evidence of the murders,

disposed of the bodies, and planned to flee from Maine.

Other witnesses' testimony established that Lombard had

reason to be aware that he could not lawfully possess a

firearm, that he nonetheless purchased the .22 caliber rifle

from Tammy Theriault's brother, and that the bullets that

were recovered from the victims' bodies were consistent with

having been fired from a .22 caliber rifle.

Hartley pleaded guilty at the close of the

government's case. Lombard, however, put his case to the

jury (without presenting an affirmative case) and was

convicted on both Counts 1 and 2 of the indictment.

At Lombard's sentencing, the court applied a cross-

reference in the relevant provision of the Guidelines

governing the firearms conviction (Count 2), which

essentially provided that if Lombard's unlawfully possessed

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firearm had been used in the commission of a murder, his base

offense level (BOL) on that conviction was to be determined

by the same guideline applicable to a conviction for murder.

The court determined that the firearm had so been used. The

resulting BOL required a term of life imprisonment, and

Lombard was sentenced accordingly.

II

The Sentence

Lombard raises two challenges to the sentence

imposed by the district court. He contends that the life

sentence was imposed in violation of his rights under the Due

Process Clause.2 He also argues, to no avail, that he was

2. As a preliminary matter, we reject the government's
assertion that the defendant did not properly preserve this
issue for appeal. The issue of whether and in what way the
murders of which Lombard had been acquitted could properly be
considered at sentencing was adequately presented to and
squarely addressed by the district court. As the court
itself stated:

The key issue in this sentencing, of course,
is whether or not premeditated murder is the object
offense in connection with which the firearms were
unlawfully possessed. . . .
Resolution of this issue is particularly
difficult because of the fact that both defendants,
Mr. Lombard and Mr. Hartley, were acquitted of first
degree murder charges in the state court . . . .
The suggestion made by counsel for Mr. Lombard quite
appropriately is how could the object offense in
deriving the calculation of the appropriate
guideline in determining the sentence in this case
be calculated on the basis of crimes for which the
defendant has been acquitted albeit in state court?
And that's the central core issue that has
been troubling me throughout this process since the

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erroneously denied credit under the Guidelines for his

acceptance ofresponsibility forthe firearms andflight crimes.

A. Calculation of the Guidelines Sentence

Lombard received a life sentence as a thrice-prior

convicted felon ostensibly for his unlawful possession of a

firearm in violation of 18 U.S.C. 922(g) and 924(e).3 He

was sentenced to the statutory maximum of 60 months for the

conviction on the conspiracy count, concurrent with the life

sentence.4 Lombard does not contend here that the district

court incorrectly applied the Guidelines in determining his

life sentence, but rather argues that the manner in which the

trial and during the presentence conferences and
reviewing the presentence report and the
transcripts.

3. Section 922(g)(1) provides: "It shall be unlawful for any
person . . . who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year
. . . to ship or transport in interstate or foreign commerce,
or possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition which has
been shipped or transported in interstate or foreign commerce
[paragraph structure omitted]."
Section 924(e)(1) provides: "In the case of a person who
violates section 922(g) of this title and has three previous
convictions by any court referred to in section 922(g)(1) of
this title for a violent felony or a serious drug offense, or
both, committed on occasions different from one another, such
person shall be fined not more than $25,000 and imprisoned
not less than fifteen years, and, notwithstanding any other
provision of law, the court shall not suspend the sentence
of, or grant a probationary sentence to, such person with
respect to the conviction under section 922(g)."

4. Lombard has not appealed the sentence on the conspiracy
conviction.

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Guidelines, as applied by the court, required it to conduct

its factfinding and mandated the life sentence violated his

constitutional rights.

The specific guideline applicable to the

defendant's firearms conviction is U.S.S.G. 2K2.1.5

Subsection (a)(2) of the 1990 version of section 2K2.1 sets a

BOL of 12 "if the defendant is convicted under 18 U.S.C.

922(g) . . . ."6 The "cross-reference" provision of

subsection (c)(2) of section 2K2.1 directs that "[i]f the

defendant used or possessed the firearm in connection with

commission or attempted commission of another offense, apply

2X1.1 . . . in respect to that other offense, if the

resulting offense level is greater than that determined

above." U.S.S.G. 2K2.1(c)(2) (Nov. 1990). Treating the

murders as "another offense," and finding by a preponderance

5. Although the November 1993 version of the Guidelines was
in effect at the time of Lombard's sentencing, the district
court applied the 1990 version, apparently to avoid any ex

post facto concerns. See United States v. Aymelek, 926 F.2d

64, 66 n.1 (1st Cir. 1991). The outcome (a mandatory life
sentence) would not have been different had any later version
of the Guidelines been applied. All citations to the
Guidelines are to the 1990 version, unless otherwise noted.

6. An unadjusted BOL of 12 (given defendant's criminal
history category of VI) would have translated into a sentence
of 30-37 months. However, because defendant was sentenced as
an armed career criminal under 18 U.S.C. 924(e), which
provides for a 15-year minimum, his total offense level could
not have been any lower than 34, even apart from
consideration of the murders. See U.S.S.G. 4B1.4(b)(3)(A).

That offense level would have translated into a Guidelines
sentencing range of 262-327 months.

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of the evidence that the defendant had committed that other

offense, the court applied section 2X1.1, which directed the

defendant's BOL to be set at "[t]he base offense level from

the guideline for the object offense . . . ." U.S.S.G.

2X1.1(a) (Nov. 1990). The "object offense" was first

degree murder, to which a BOL of 43 attaches.7 See U.S.S.G.

2A1.1. Finding no basis for awarding acceptance-of-

responsibility credit, the district court assigned a total

offense level of 43. Because Lombard was sentenced as a

career criminal under 18 U.S.C. 924(e), there was a

statutory minimum of 15 years, but no stated statutory

maximum applicable; thus no reduction was indicated under

U.S.S.G. 5G1.1(a) (which requires adjustment of a

Guidelines sentence to comply with the statutory maximum for

the offense of conviction). The defendant's final Guidelines

7. The same result would obtain under the current version of
the Guidelines. The November 1991 amendment to section
2K2.1(c) created a specific provision for cases in which the
underlying offense conduct is found to have resulted in
death. See U.S.S.G. App. C, amend. 374. The cross-

reference, as amended, provides as follows:

(1) If the defendant used or possessed any firearm
or ammunition in connection with the commission or
attempted commission of another offense, . . . apply
. . .
(B) if death resulted, the most
analogous offense guideline from Chapter
Two, Part A, Subpart 1 (Homicide), if
the resulting offense level is greater
than that determined above.

U.S.S.G. 2K2.1(c)(1)(B) (Nov. 1995).

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sentence was a mandatory term of life imprisonment. See

U.S.S.G. Ch. 5, Pt. A (assigning life sentence to BOL of 43

for all criminal history categories).

B. The Life Sentence

The mandatory imposition of a life sentence here

raises questions of whether such a result was strictly

intended by the Sentencing Guidelines and whether the method

followed to produce that result comports with the Due

Process Clause. Our focus is on the process by which the

result was reached. Lombard makes no claim, nor could he, on

the facts here that imposition of a life sentence on him

(accompanied by due process) would itself be unconstitutional

under the Eighth Amendment. Harmelin v. Michigan, 501 U.S.

957 (1991). The life sentence resulted from the convergence

of several doctrines in sentencing law, each individually

well accepted, and none of which individually is questionable

here. But just as folk wisdom recognizes that the whole is

often greater and different than simply the sum of its parts,

these individual doctrines, each reflecting compromises in

our criminal jurisprudence, in this extreme case threaten in

combination to erode rights that the Constitution does not

permit to be compromised.

We take as given that once convicted, a defendant

has no right under the Due Process Clause to have his

sentencing determination be confined to facts proved beyond a

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reasonable doubt. McMillan v. Pennsylvania, 477 U.S. 79

(1986); United States v. Gonzalez-Vazquez, 34 F.3d 19, 25

(1st Cir. 1994). A sentencing court's operative factfinding

is generally subject only to a "preponderance of the

evidence" standard. See United States v. LaCroix, 28 F.3d

223, 231 (1st Cir. 1994); United States v. Mocciola, 891 F.2d

13, 17 (1st Cir. 1989); United States v. Wright, 873 F.2d

437, 441 (1st Cir. 1989). But cf. United States v. Kikumura,

918 F.2d 1084, 1102 (3d Cir. 1990) (holding that "clear and

convincing" standard applies in certain limited

circumstances). Nor is a sentencing court limited to

considering only the conduct of which the defendant was

formally charged or convicted. Even before the advent of the

Guidelines, some sentencing courts took into account any

information known to them, including uncharged relevant

conduct. See, e.g., Nichols v. United States, 114 S. Ct.

1921, 1928 (1994); Williams v. New York, 337 U.S. 241, 246

(1949); United States v. Concepcion, 983 F.2d 369, 387-88 (2d

Cir. 1992), cert. denied, 114 S. Ct. 163 (1993).

The Guidelines were not intended to discontinue the

courts' historical practice of considering the relevant

circumstances of the defendant's real conduct, whether those

circumstances were specifically charged or not. See United

States v. Jackson, 3 F.3d 506, 509 (1st Cir. 1993); Wright,

873 F.2d at 441; see generally Stephen Breyer, The Federal

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Sentencing Guidelines and the Key Compromises Upon Which They

Rest, 17 Hofstra L. Rev. 1, 8-12 (1988). As now-Justice

Breyer noted, the Guidelines evince a compromise between a

pure "charge offense" system in which sentences are

determined based solely upon conduct of which a defendant is

convicted, and a "real offense" system, in which sentences

are fashioned in view of all relevant mitigating and

aggravating factors surrounding the defendant's conduct. See

id. A sentencing court may, therefore, consider relevant

conduct of the defendant for purposes of making Guidelines

determinations, even if he has not been charged with and

indeed, even if he has been acquitted of that conduct, so

long as the conduct can be proved by a preponderance of the

evidence. See United States v. Carrozza, 4 F.3d 70, 80 (1st

Cir. 1993) (reasoning that failure of proof beyond a

reasonable doubt does not preclude proof by a preponderance

of the evidence), cert. denied, 114 S. Ct. 1644 (1994);

Jackson, 3 F.3d at 509; Mocciola, 891 F.2d at 17. Resolution

of this case does not require the questioning of any of these

general rules but does involve recognition that there may be

limits to their application.

Both the Supreme Court and this court have

recognized that the Due Process Clause itself imposes limits

on the application of these doctrines in extreme cases, and

we must interpret the Guidelines in light of those

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constraints. This court recognized in United States v.

Rivera, 994 F.2d 942 (1st Cir. 1993), that there is a range

of discretion left to the district courts even within the

Linnaean categorizations of the Guidelines. We hold, under

Rivera, that the district court did have discretion here,

which it thought it had not, to consider a downward departure

from the life sentence. Accordingly, we remand.

1. The Tail That Wags the Dog

The Supreme Court decisions on sentencing, while

generally endorsing rules that permit sentence enhancements

to be based on conduct not proved to the same degree required

to support a conviction, have not embraced the concept that

those rules are free from constitutional constraints. On the

contrary, the Court has cautioned against permitting a

sentence enhancement to be the "tail which wags the dog of

the substantive offense." McMillan, 477 U.S. at 88.

McMillan involved a challenge to a Pennsylvania

statute that imposed a mandatory minimum prison sentence of

five years for a defendant found at sentencing by a

preponderance of the evidence to have "visibly possessed a

firearm" in connection with his offense of conviction. The

Court held that the statute did not violate the Due Process

Clause. See McMillan, 477 U.S. at 92. ("[W]e have

consistently approved sentencing schemes that mandate

consideration of facts related to the crime, . . . without

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suggesting that those facts must be proved beyond a

reasonable doubt." (citation omitted)). The Court did,

however, take pains to place limits upon its holding:

[The challenged statute] operates solely
to limit the sentencing court's
discretion in selecting a penalty within
the range already available to it without
the special finding of visible possession
of a firearm. [The statute] "ups the
ante" for the defendant only by raising
to five years the minimum sentence which
may be imposed within the statutory plan.
The statute gives no impression of having
been tailored to permit the visible
possession finding to be a tail which

wags the dog of the substantive offense.

Id. at 88 (emphasis added).

Here, in contrast, the tail has wagged the dog.

The consideration of the murders at Lombard's sentencing

upstaged his conviction for firearms possession. The

circumstances of this case that have combined to produce this

effect raise grave constitutional concerns, although each

doctrine considered separately might not provoke a second

thought. Cf. United States v. Sepulveda, 15 F.3d 1161, 1195-

96 (1st Cir. 1993) (circumstances that individually might not

warrant appellate relief "may in the aggregate have a more

debilitating effect" and that a cumulation of circumstances

"may sometimes have a logarithmic effect, producing a total

impact greater than the arithmetic sum of its constituent

parts"), cert. denied, 114 S. Ct. 2714 (1994).

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The effect here has been to permit the harshest

penalty outside of capital punishment to be imposed not for

conduct charged and convicted but for other conduct as to

which there was, at sentencing, at best a shadow of the usual

procedural protections such as the requirement of proof

beyond a reasonable doubt. This other conduct murder was

surely of the most serious sort, but exactly the sort as to

which our jurisprudence normally requires the government to

meet its full burden of proof. When put to that proof in

state court, the government failed. The punishment imposed

in view of this other conduct far outstripped in degree and

kind the punishment Lombard would otherwise have received for

the offense of conviction. There was no safety valve, or so

thought the trial judge, to adjust the Guidelines sentence of

life imprisonment to assure consideration of the penalty

imposed in light of the process followed. And that, in turn,

raises questions as to whether Lombard received, as to his

sentence, the process that the Constitution says was due.

While we discuss individual concerns, we stress

that it is the interplay amongst these concerns which is of

import, and none of these concerns should be examined in

isolation. We start with the paramount seriousness of the

ostensibly "enhancing" conduct at issue. A charge of murder

represents the very archetype of conduct that "has

historically been treated in the Anglo-American legal

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tradition as requiring proof beyond a reasonable doubt."

McMillan, 477 U.S. at 90 (citation and quotation marks

omitted). Thus, a rule structure that bars conviction of a

firearms charge except on proof beyond a reasonable doubt,

but then permits imposition of a life sentence upon proof of

a murder by a preponderance of the evidence attaches, in

effect, the lesser procedural protections to the issue that

would naturally be viewed as having the greater significance.

That anomaly is heightened by the specific manner

in which the Guidelines operated here. Unlike certain

"relevant conduct" guidelines that simply call for a

determinate increase in a defendant's BOL based on specified

factual findings, see, e.g., U.S.S.G. 2D1.1(b)(1) (calling

for two-level increase in BOL for drug conviction upon a

finding that a firearm was possessed), the cross-reference

provision that was applied in this case, U.S.S.G. 2K2.1(c),

required the district court to calculate Lombard's BOL as if

his offense of conviction had been murder. See U.S.S.G.

2K2.1(c), 2X1.1 (Nov. 1990).8

Particularly in light of the absence of any stated

statutory maximum for the firearms offense, see 18 U.S.C.

924(e), the cross-reference to the first-degree murder

8. The current version of the cross-reference is even more
explicit, directing the court to apply, in cases where death
resulted from the defendant's offense conduct, "the most
analogous offense guideline from Chapter Two, Part A, Subpart
1 (Homicide)." U.S.S.G. 2K2.1(c)(1)(B) (Nov. 1995).

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guideline essentially displaced the lower Guidelines range

that otherwise would have applied. As a result, the sentence

to be imposed for Lombard's firearms conviction was the same

as the sentence that would have been imposed for a federal

murder conviction: a mandatory term of life. Despite the

nominal characterization of the murders as conduct that was

considered in "enhancing" or "adjusting" Lombard's firearms

conviction, the reality is that the murders were treated as

the gravamen of the offense.

As the enhancing conduct in this case was serious,

so too was the "enhancement." Attribution of the murders to

Lombard operated not merely to ratchet up his prison term by

some fractional increment, but rather wholly to remove the

defendant's sentence from the term-of-years continuum and

transform it into a life sentence without the prospect of

parole. That punishment represents "the second most severe

penalty known to the law," Harmelin, 501 U.S. 957, 996 (1991)

(Scalia, J.). It qualitatively differs from any lesser

sentence in resting upon a determination that the "criminal

conduct is so atrocious that society's interest in deterrence

and retribution wholly outweighs any considerations of reform

or rehabilitation of the perpetrator." Id. at 2719 (Stevens,

J., dissenting) (citation and quotation marks omitted); see

also Helm v. Solem, 684 F.2d 582, 585 (8th Cir. 1982) ("A

life sentence without parole differs qualitatively from a

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sentence for a term of years" because it represents the

"total[] reject[ion] of rehabilitation as a basic goal of our

criminal justice system."), aff'd, 463 U.S. 277 (1983). In

short, the enhancement at issue not only increased the

duration of Lombard's sentence, but placed his punishment on

an entirely different order of severity.

This qualitative difference between the life

sentence imposed and the term of years that Lombard might

otherwise have received as a prior offender (262-327 months)

implicates basic concerns of proportionality both between the

enhancement and base sentence and between the offense and

punishment as a whole. Even if these concerns, considered

alone, might not rise fully to the level of constitutional

significance, they further distinguish this case from less

troubling ones. The comparative severity of the enhancement

invites scrutiny of the weight given to factfinding as to

ostensibly "enhancing" conduct (the murders) allocated to the

sentencing phase, with its looser procedural constraints and

lesser burden of proof. It raises the danger of the

defendant's trial and conviction being turned into a means of

achieving an end that could not be achieved directly: the

imposition of a life sentence "enhancement" based on a

federally unprosecutable murder. In its interaction with the

other concerns we describe, there is also an issue as to the

proportion between the gravity of Lombard's offense of

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conviction and the severity of his punishment. If a life

sentence without parole is appropriate for murder, in most

instances that sentence might appear to be harsh punishment

for the unlawful possession of a rifle, even by a career

criminal. While one may doubt whether there are Eighth

Amendment concerns9 lurking here, cf. Harmelin, 501 U.S. at

997-1001 (Opinion of Kennedy, J.), the harshness of the life

sentence in relation to the offense of conviction highlights

the need for rigorous inquiry.10

Without impugning the principle that acquitted

conduct may be considered in determining a defendant's

sentence, the prior state court acquittal presents another

concern in its interaction here. Lombard put the Maine

government to its proof on the charges of murder against him,

and a state court jury determined that reasonable doubt as to

his guilt persisted. The federal prosecution followed on the

heels of the acquittal. As the particular murders at issue

9. Interestingly, the Constitution of the State of Maine
contains an explicit proportionality guarantee: "[A]ll
penalties and punishments shall be proportional to the
offence." Me. Const. art. I, 9. Thus, it is a fair
question whether the Maine Constitution would have permitted
the resulting sentence here if Maine had done what the
federal prosecution did.

10. It bears emphasis that the perceived severity of a
sentence is not, standing alone, a basis for departing from
the Guidelines sentencing range. United States v. Jackson,

30 F.3d 199, 203-04 (1st Cir. 1994). Here, the magnitude of
the sentence enhancement is of concern only when viewed in
its interaction with the other aspects of this case.

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were outside the sphere of the federal prosecutor's criminal

charging power as to murder,11 Lombard was not charged with

murder in the federal indictment; the murders themselves were

not alleged by the government to be an object of the

defendants' conspiracy; and the federal jury was required to

make no factual determination regarding the commission of the

murders. Yet it would ignore reality not to recognize that

the federal prosecution arose out of and was driven by the

murders, and that the prosecution was well aware that the

Sentencing Guidelines would require consideration of the

murders at sentencing. This reality was reflected in the

prosecution's statement at the pre-sentencing conference that

"it was quite clear from the beginning; Mr. Lombard was

looking at a life sentence." The government, by its own

11. The government conceded at oral argument that Lombard
and Hartley could not have been charged under any of the
federal murder statutes. See, e.g., 18 U.S.C. 1111,

2113(e), 2118(c)(2); 21 U.S.C. 848(e). The murders did not
take place on any federal installation, were not in
connection with the robbery of a federally insured bank or a
robbery involving federally controlled substances, nor were
committed in the course of a continuing criminal enterprise
as defined by federal law. Whether or not it could do so,
the fact is that Congress has chosen not to federalize the
state crime of murder in cases like Lombard's, and so has not
authorized reprosecution for murder pursuant to the doctrine
of separate sovereignties. See Abbate v. United States, 359

U.S. 187 (1959). Thus, the issue raised is not one of Double
Jeopardy, nor, strictly speaking, of the reach of the federal
power, but one of Due Process: whether the sentencing court
is precluded from considering that the Sentencing Guidelines
as applied, through the vehicle of sentence enhancement,
effectively punishes the defendant for conduct as to which
there exists no statutory authorization for the government
even to prosecute.

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21

words, had intended "from the beginning" that consideration

of the murders would result in a life sentence.

Through the post-trial adjudication of the murders

under a lesser standard of proof, the federal prosecution

obtained precisely the result that the Maine state

prosecutors attempted, but failed, to obtain. The federal

prosecution may well have done better. The net effect of the

Guidelines attribution of the murders to Lombard as

understood by the district court was to mandate imposition of

a life sentence. This was the maximum that Lombard could

have received had he been convicted of murder in the Maine

state court. See Me. Rev. Stat. Ann. tit. 17-A, 1251

(setting minimum sentence of 25 years and maximum of life).

Indeed, a state murder conviction might have yielded

something less severe than a life sentence. See State v. St.

Pierre, 584 A.2d 618, 621-22 (Me. 1990) (vacating life

sentence and reducing sentence to term of 45 years, where

although defendant "committed a brutal murder," the record

failed to "establish behavior at the outermost portion of the

range of cruelty that would constitute the aggravating

circumstances of extreme cruelty").12 In any event, in no

12. If Lombard had been convicted of murder in the Maine
state court and received a sentence of a term of years, he
would have been eligible to receive credit against time to be
served under the "good time" provisions of state law, which
are considerably more generous than similar federal
provisions. Compare Me. Rev. Stat. Ann. tit. 17-A, 1253(3)

(entitling any person sentenced to a term of more than six

-22-
22

circumstances under Maine law would Lombard have been subject

to a mandatory life sentence. See State v. Shortsleeves, 580

A.2d 145, 149-50 (Me. 1990); St. Pierre, 584 A.2d at 621.

Although Lombard's firearms offense was the vehicle

by which he was brought into the federal criminal justice

system, the life sentence resulted from the district court's

finding that the defendant had committed murder.

Characterized in other terms, through the mechanisms of the

Guidelines and accompanying legal doctrines, the sentencing

phase of the defendant's trial produced the conclusion he had

committed murder and mandated imposition of a life sentence,

but without the protections which normally attend the

criminal process, such as the requirement of proof beyond a

reasonable doubt. Given the magnitude of the sentence

"enhancement," the seriousness of the "enhancing" conduct in

relation to the offense of conviction, and the seemingly

mandatory imposition of the life sentence, this summary

process effectively overshadowed the firearms possession

charge and raises serious questions as to the proper

allocation of the procedural protections attendant to trial

versus sentencing. See United States v. Gigante, 39 F.3d 42,

months "to receive a deduction of 10 days each month for
observing all rules of the department and institution") with

18 U.S.C. 3624(b) (permitting up to 54 days of good time
credit per year to prisoners serving terms of more than one
year but less than life but allowing no such credit to
persons serving a sentence for a crime of violence).

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23

47 (2d Cir. 1994) ("[W]e agree that there is a constitutional

requirement of some rough proportionality between the weight

of the evidence of the uncharged conduct and the degree of

[the sentencing] adjustment . . . ."). We would be hard put

to think of a better example of a case in which a sentence

"enhancement" might be described as a "tail which wags the

dog" of the defendant's offense of conviction. McMillan, 477

U.S. at 88.

The convergence of circumstances and processes that

yielded Lombard's life sentence distinguishes this case from

United States v. Mocciola, 891 F.2d 13, 17 (1st Cir. 1989),

and its progeny. Mocciola itself involved the attribution to

the defendant of an acquitted firearms offense pursuant to

U.S.S.G. 2D1.1(b)(1)13 and rejected the contention that

consideration of the acquitted conduct (under a preponderance

of the evidence standard) was unconstitutional. Id. (quoting

McMillan, 477 U.S. at 91, and Wright, 873 F.2d at 441). The

acquitted conduct considered in Mocciola, a firearms offense,

was well within the sphere of ordinary federal prosecution.

The consideration of the acquitted conduct in Mocciola had a

13. The defendant had pleaded guilty on a cocaine conspiracy
charge, but went to trial and was acquitted by the federal
jury on a firearms possession charge arising out of the same
course of conduct. See Mocciola, 891 F.2d at 14.

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24

relatively limited effect, simply increasing the sentence by

two offense levels (15 months). See id. at 15, 17.14

In United States v. Carrozza, 4 F.3d 70 (1st Cir.

1993), cert. denied, 114 S. Ct. 1644 (1994), defendant

Patriarca's appeal raised the question whether "relevant

conduct" under U.S.S.G. 1B1.3 could include two murders of

which Patriarca himself had not been charged, but which had

been committed in furtherance of the conspiracy to which he

had pleaded guilty. This court answered in the affirmative,

reversing the district judge's conclusion. See id. at 80-81.

Carrozza supports the analysis here in several

important respects. Although defendant Patriarca himself had

not been charged federally with murder, at least one of his

confederates had pleaded guilty to such a charge in a related

14. At least two post-Mocciola cases from this circuit were

likewise decided on facts dissimilar to the circumstances
here. See United States v. Gonzalez-Vazquez, 34 F.3d 19, 23-

26 (1st Cir. 1994) (upholding, after drug conviction, two-
level sentence enhancement under U.S.S.G. 2D1.1(b)(1) in
view of conduct alleged in a dismissed firearms charge);
United States v. Jackson, 3 F.3d 506, 509-10 (1st Cir. 1993)

(same, in view of uncharged conduct of which co-defendant was
acquitted).
Also, in United States v. LaCroix, 28 F.3d 223 (1st

Cir. 1994), the holding of Mocciola was restated in dictum,

but the only issue was whether certain financial losses could
be attributed to the defendant under the "relevant conduct"
provision of U.S.S.G. 1B1.3(a)(1) (June 1988). The
defendant had been convicted as a participant in the
conspiracy that caused those losses, but the jury had
deadlocked on the substantive counts. The jury's inability
to reach consensus on the substantive counts was held not to
preclude a finding that the losses were foreseeable to the
defendant as a convicted co-conspirator. See id. at 230-31.

LaCroix does not aid the resolution of this case.

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25

case. See United States v. Patriarca, 807 F. Supp. 165, 185

(D. Mass. 1992), vacated, Carrozza, 4 F.3d 70. Certainly,

there had been no acquittal. Even more importantly,

Carrozza's holding was based on the explicit assumption that

consideration of the murders would not necessarily result in

a life sentence. In fact, the district court had refused to

consider the uncharged murders in sentencing Patriarca,

troubled by the prospect of exposing the defendant to a life

sentence on the basis of uncharged conduct. This court

rejected the premise of the district court's concern,

explaining that Patriarca's offenses of conviction RICO

violations carried statutory maximum sentences of twenty

years each. See Carrozza, 4 F.3d at 81. But even so, the

panel was careful to reserve decision as to whether there

might remain a basis for concern if the district court were

to order Patriarca to serve consecutive twenty-year sentences

on each of his three RICO convictions, the practical

equivalent of a life sentence. The court openly acknowledged

that it was troubled by this potentiality:

At least one member of the panel believes
that serious constitutional concerns may
arise if the defendant ultimately
receives the equivalent of a life
sentence on the ground of his connection
with a murder for which he was never
indicted, tried or convicted by a jury.

See id. at 81 n.9.

-26-
26

The situation hypothesized in Carrozza is closer to

the one we face here, with added amplifying elements.

Lombard was acquitted of the murders by a state court jury.

Nonetheless he received not just "the equivalent of a life

sentence" based on attribution of the murders, but a true

life sentence, and a mandatory one at that. Further, the

sentence imposed may have been even more severe than what he

would have received had he been convicted in state court. We

believe, as did "at least one member of the panel" in

Carrozza, that the life sentence imposed upon the defendant

raises "serious constitutional concerns." Id.

These concerns are reinforced by the Supreme

Court's recent discussion in Witte v. United States, 115 S.

Ct. 2199 (1995). The Court framed its analysis by asking

when a sentence enhancement can properly be viewed as

punishment for the offense of conviction, as opposed to

punishment for the enhancing conduct. While the case

involved a Double Jeopardy and not a Due Process challenge,

its discussion is instructive here: if the life sentence that

Lombard received can realistically be viewed as punishment

for the murders, as opposed to punishment for the firearms

offense, the constitutional difficulties alluded to in

McMillan then come to the fore.

In Witte, the defendant had been convicted on a

marijuana charge, then received an enhanced prison term in

-27-
27

view of certain cocaine-related "relevant conduct" considered

at sentencing. Later, the defendant was prosecuted for that

same cocaine-related conduct. He objected on double jeopardy

grounds, arguing that he had already been punished for the

cocaine-related conduct by virtue of the sentence enhancement

following the marijuana conviction. The Supreme Court

disagreed and held that the defendant had been punished in

the first prosecution only for the offense of conviction (the

marijuana charge), even though the sentencing court had

considered the cocaine-related conduct in calculating his

sentence. See id. at 2207. In so concluding, however, the

Court emphasized that the sentence for the defendant's

offense of conviction (the marijuana charge) had carried a

statutory maximum, and the "enhancement" to the defendant's

sentence had merely fixed the term of imprisonment at some

point closer to (but still below) that maximum:

The relevant conduct provisions of the
Sentencing Guidelines . . . are
sentencing enhancement regimes evincing
the judgment that a particular offense
should receive a more serious sentence
within the authorized range if it was

either accompanied by or preceded by
additional criminal activity. Petitioner

does not argue that the range fixed by

Congress is so broad, and the enhancing

role played by the relevant conduct so

significant, that consideration of that

conduct in sentencing has become "a tail

which wags the dog of the substantive

offense." McMillan, 477 U.S. at 88

. . . . We hold that, where the
legislature has authorized such a
particular punishment range for a given

-28-
28

crime, the resulting sentence within that

range constitutes punishment only for the

offense of conviction for purposes of the
double jeopardy inquiry.

Witte, 115 S. Ct. at 2208 (emphases added, some citations

omitted).

This case presents precisely the troubling

situation that Witte makes an effort to distinguish: the

applicable statutory sentencing range (fifteen years minimum,

no stated maximum) is quite broad, and the enhancing role

played by the relevant conduct the murders is

inordinately significant. The effect of considering the

murders was not just to fix Lombard's sentence at some higher

point within a particular range delimited by Congress for the

firearms offense.15 Instead, the Guidelines, combined with

15. This is in striking contrast to the case of Lombard's
co-defendant, Hartley. After he pleaded guilty, Count 3 of
the indictment was dismissed as to him on the government's
motion. Hartley's BOL of 12 as to Count 1, with a criminal
history category of I, would have yielded a sentence of 10-16
months. The district court found that Hartley, like Lombard,
was subject to the cross-reference provision of U.S.S.G.
2K2.1(c). But, as the government informed us at oral
argument, Hartley who did not qualify as a career criminal
had the benefit of a five-year statutory maximum on his

conviction under Count 1, see 18 U.S.C. 371, which is what

he received after his plea. (Had Count 3 not been dismissed,
Hartley likely would have been subject to the ten-year

statutory maximum contained in 18 U.S.C. 924(a)(2) for
aiding and abetting the firearms offense.) Thus, for
Hartley, consideration of the murders under U.S.S.G.
2K2.1(c) only had the effect of increasing his sentence
from a base of 10-16 months to the statutory maximum of five
years, even though Tammy Theriault's testimony indicated that
Hartley shared at least equal blame with Lombard for the

murders.

-29-
29

the absence of a stated statutory maximum, essentially

required the district court to determine Lombard's base

offense level as if his offense of conviction had been first-

degree murder.16 See U.S.S.G. 2K2.1(c). This comes

perilously close, we believe, to punishing Lombard for the

ostensibly "enhancing" conduct, the murders.17

16. Cases from other circuits addressing the permissibility
of considering acquitted (or uncharged) conduct at sentencing
generally have involved only modest sentence increases, or
increases that were within a stated statutory maximum, or
both, and so provide little guidance here. See, e.g., United

States v. Hunter, 19 F.3d 895, 896-97 (4th Cir. 1994)

(affirming 2-level sentence enhancement on drug conviction
based on an acquitted firearms charge); United States v.

Smith, 5 F.3d 259, 261-62 (7th Cir. 1993) (affirming

imposition of statutory maximum sentence of 5 years for
firearms conviction based on finding at sentencing that
defendant had committed second degree murder, even though
defendant had been convicted only of involuntary manslaughter
in state court); United States v. Galloway, 976 F.2d 414,

424-26 (8th Cir. 1992) (en banc, 7-5) (approving
consideration of uncharged property theft to enhance
sentencing range on conviction for interstate theft from 21-
27 months to 63-78 months, where statutory maximum was 10
years), cert. denied, 113 S. Ct. 1420 (1993); United States

v. Bronaugh, 895 F.2d 247, 250-52 (6th Cir. 1990) (affirming

increase of sentence for firearms conviction from range of 4-
27 months to statutory maximum of five years, based on
uncharged drug trafficking offenses); United States v.

Juarez-Ortega, 866 F.2d 747, 748-49 (5th Cir. 1989) (per

curiam) (affirming increase of sentence for drug conviction,
within statutory maximum, based on consideration of acquitted
firearms charge).

17. The application of section 2K2.1(c) here might be viewed
as being less like the sentencing statute approved of in
McMillan and similar cases, and more like the scheme

invalidated in Specht v. Patterson, 386 U.S. 605, 607 (1967).

In Specht, the Court held that where the defendant had been

convicted under a sex offender statute carrying a 10-year
maximum penalty, the state could not constitutionally
sentence him without a hearing (with appropriate protections
such as the right to counsel and to cross-examine witnesses)

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30

In the aftermath of Witte, this court in United

States v. Rivera-Gomez, 67 F.3d 993 (1st Cir. 1995), recently

noted that the manner in which a sentence is enhanced over

and above the sentence that a defendant would otherwise

receive is subject to constitutional limits:

[T]he burgeoning use of sentence
enhancers by Congress and the Sentencing
Commission as part of the catechism of
punishment poses an obvious danger that,
in extreme circumstances, the lagniappe
might begin to overwhelm the main course.
In all probability, there are
constitutional limits on the way
sentencing factors can be deployed in the
punishment of a substantive offense.

Id. at 1001.

There is substantial reason for concern that the

"enhancement" that produced Lombard's life sentence exceeded

these limits. The convergence that produced Lombard's life

sentence, we believe, is exactly the reason for the Supreme

Court's reserve in McMillan and in Witte when it carefully

withheld its constitutional blessing for a sentence

"enhancement" that would be a "tail which wags the dog" of a

defendant's offense of conviction. That troubling

hypothetical is the reality here.

under a separate but related statute that permitted
imposition of a sentence of 1 day to life based on proof that
the defendant posed a threat of bodily harm to the public.
Cf. Galloway, 976 F.2d at 441-42 (en banc) (Bright, J.,

dissenting) (comparing operation of the relevant conduct
provision of U.S.S.G. 1B1.3(a)(2) (Nov. 1991) to the scheme
invalidated in Specht).

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31

2. Considering Departure: Outside

the "Heartland"

Against this background, we look first to whether

the Guidelines themselves are indeed so inflexible as the

government urged at sentencing, or whether they permit a

different result, and if so, whether that result would avoid

the constitutional issue. See United States v. Monsanto, 491

U.S. 600, 611 (1989); Edward J. DeBartolo Corp. v. Florida

Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575

(1988). We hold that a sentence of life imprisonment was not

an inexorable outcome under the Guidelines, that this case is

within the scope of section 5K2.0 which provides flexibility,

and that, under our decision in Rivera, the district court

had authority to avoid any unfairness in Lombard's sentence

through the mechanism of downward departure.

The principles governing downward departures under

the Sentencing Guidelines were comprehensively outlined by

this court in United States v. Rivera, 994 F.2d 942 (1st Cir.

1993), and we apply its teachings here. A fundamental

premise of the Sentencing Guidelines is that "each guideline

. . . carv[es] out a 'heartland,' a set of typical cases

embodying the conduct that each guideline describes."

U.S.S.G. Ch. 1, Pt. A, intro. comment. (4)(b); see Rivera,

994 F.2d at 947. As the Sentencing Commission itself

recognized, however, some cases will involve circumstances

that make them atypical and remove them from the "heartland"

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32

of a guideline's literal scope. U.S.S.G. Ch. 1, Pt. A,

intro. comment. (4)(b). A case that falls outside of a

guideline's heartland "is, by definition, an 'unusual case'"

and therefore a candidate for downward or upward departure.

Rivera, 994 F.2d at 947. The basic question, then, is

simply: "Does this case fall within the 'heartland,' or is

it an unusual case?" Id. at 948.

The Sentencing Commission has been explicit that,

with several notable exceptions not applicable here, it

"d[id] 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."

U.S.S.G. Ch. 1, Pt. A, intro. comment. (4)(b). The

Guidelines themselves recognize that even if a case presents

no circumstances specifically identified as permissible

grounds for departure, the case may still be sufficiently

unusual to warrant it:

Circumstances that may warrant departure
from the guidelines pursuant to this
provision cannot, by their very nature,
be comprehensively listed and analyzed in
advance. The controlling decision as to
whether and to what extent departure is
warranted can only be made by the courts.
. . . Any case may involve factors in
addition to those identified that have
not been given adequate consideration by
the Commission. Presence of any such
factor may warrant departure from the
guidelines, under some circumstances, in
the discretion of the sentencing court.

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33

U.S.S.G. 5K2.0. The commentary to section 5K2.0 further

provides that even where various single circumstances,

considered individually, might be insufficient to permit a

finding that a case is outside the heartland of a particular

guideline, the presence of those circumstances in combination

might permit a different assessment:

The Commission does not foreclose the
possibility of an extraordinary case
that, because of a combination of . . .
characteristics or circumstances [that
separately would not warrant departure],
differs significantly from the
"heartland" cases covered by the
guidelines in a way that is important to
the statutory purposes of sentencing,
even though none of the characteristics
or circumstances individually
distinguishes the case.

U.S.S.G. 5K2.0, comment. (Nov. 1995).18 The Guidelines,

in short, do not always mandate the appropriate sentence.

See Rivera, 994 F.2d at 949 ("Ultimately, . . . the

Guidelines cannot dictate how courts should sentence in such

special, unusual or other-than-ordinary circumstances.").

Although the district court is entitled to

considerable "leeway" in its determination of whether a given

18. Amendments to the Guidelines that are intended to
clarify rather than change the Guidelines' operation, such as

the 1994 amendments to the commentary to section 5K2.0, may
be applied retroactively. See United States v. Doe, 18 F.3d

41, 47 (1st Cir. 1994); see also LaCroix, 28 F.3d at 227 &

n.4 (stating that clarifying amendments to the Guidelines
"may be taken into account retrospectively, not only by the
sentencing court . . . but also on appeal" (citations
omitted)).

-34-
34

set of circumstances renders a particular case "unusual," id.

at 951, this court has plenary review over legal questions

involving interpretation of the Guidelines and over the

district court's determination of whether it had authority to

depart based on its assessment of the relevant sentencing

facts. See id. at 951.

Here, the district court did not consider whether

departure would have been appropriate under U.S.S.G. 5K2.0.

At Lombard's sentencing hearing, the district court expressed

considerable unease at the sentence of mandatory life

imprisonment that had resulted from its consideration, as

required by the Guidelines, of Lombard's acquitted

conduct.19 The government asserted at the sentencing

hearing that the Guidelines "leave this court in essence no

discretion whatsoever to sentence [Lombard] below life

imprisonment [emphasis added]." The district court thought

that it lacked authority to impose any sentence other than

life imprisonment. The court also did not consider whether

the constitutional questions raised by the mandatory life

sentence might warrant a finding that this case falls outside

the heartland of the applicable guideline. Thus, we

conclude, as did the court in Rivera, that the district court

19. For example, the district court worried: "The problem is
that th[is] scenario is very difficult for me to accept when
the whole concept of our criminal justice system is based on
innocent until proven guilty, and when there is an acquittal,
there has been no proof of guilt."

-35-
35

erroneously believed it had no power to deviate from the

sentence indicated by a straightforward application of the

Guidelines and "did not realize that it had the legal power

to consider [downward] departure" in the special

circumstances presented. See Rivera, 994 F.2d at 953.

The facts and circumstances of this case present a

whole greater than the sum of its parts and distinguish it,

from a constitutional perspective, from other cases that have

involved facially similar issues. The specific question from

the perspective of the Guidelines and under U.S.S.G. 5K2.0

is whether these features of the case e.g., the state court

acquittal and the fact that the federal sentence may exceed

any state sentence that would have attached to a murder

conviction; the paramount seriousness of the "enhancing

conduct"; the magnitude of the "enhancement"; the

disproportionality between the sentence and the offense of

conviction as well as between the enhancement and the base

sentence; and the absence of a statutory maximum for the

offense of conviction taken in combination, make this case

"unusual" and remove it from the "heartland" of the guideline

( 2K2.1) that yielded the mandatory life sentence. This

case is outside the "heartland."

The Sentencing Commission in writing U.S.S.G.

2K2.1(c) was undoubtedly aware that the cross-reference

provision might in some cases call for a defendant's base

-36-
36

offense level to be determined by reference to the guideline

governing murder. See U.S.S.G. 2K2.1(c)(1)(B) (Nov. 1995).

But from our "intermediate vantage point" in the sentencing

process, we try to place particular cases within "a broader

perspective of sentencing law," Rivera, 994 F.2d at 949. It

seems to us unlikely that the Commission could have

envisioned the particular combination of circumstances that

in this case culminated in the mandatory life sentence and

the corresponding institutional concerns.

Whether or not constitutional concerns were raised

by these circumstances, as we think they are, we conclude

that their combination here gave the court power to depart

under U.S.S.G. 5K2.0. That the application of the

Guidelines that produced the mandatory life sentence does

raise constitutional concerns only reinforces our conclusion.

This case may be viewed virtually by definition as an

"unusual" one falling outside the heartland of section

2K2.1(c). To decide otherwise would be to assume that the

Commission intended that the application of section

2K2.1(c)'s cross-reference provisions could, even in a

heartland case, produce sentences raising serious

constitutional issues. This we cannot do. Cf. Burns v.

United States, 501 U.S. 129, 137-38 (1991) (declining to

credit an interpretation of Fed. R. Crim. P. 32 that would

-37-
37

effectively impute to Congress an intent to produce a

potentially unconstitutional result).

One of the major goals of the sentencing reforms

enacted by Congress was to "assure that sentences are fair

both to the offender and to society." S. Rep. No. 225, 98th

Cong., 2d Sess. 39 (1984), reprinted in 1984 U.S.C.C.A.N.

3182, 3222, quoted in United States v. LaBonte, F.3d ,

, No. 95-1538, slip op. at 24 (1st Cir. Dec. 6, 1995).

That sense of fairness is better served here by giving effect

to the discretion preserved to the courts by the Commission

in U.S.S.G. 5K2.0. If a goal of the Guidelines is to

"avoid[] unwarranted sentencing disparities among defendants

with similar records who have been found guilty of similar

criminal conduct," 28 U.S.C. 991(b)(1)(B), it is difficult

to see how mandating imposition of a life sentence on the

facts here serves that goal. It is the conduct for which

there has been no conviction which raises the sentence here

to a life term, and then only by means of a finding by a mere

preponderance of the evidence. Yet a life term is the same

sentence that would have been imposed for a conviction of

murder. Giving unbridled effect here to the cross-referenced

murder guideline would, instead of furthering the goal of

treating like cases alike, ignore the very real differences

inherent in our system of criminal justice between a

conviction for murder based on proof beyond a reasonable

-38-
38

doubt and a firearms conviction enhanced by a finding that

guns were used to commit the same murder based on a

preponderance of the evidence. Cf. Gigante, 39 F.3d at 47-48

(characterizing preponderance standard as a mere "tie-

breaker" for evenly balanced evidence). Viewing this case as

falling outside the heartland of section 2K2.1(c) seems more

consistent with the sentencing goals set by Congress.20

See LaBonte, F.3d at , slip. op. at 24.

The Guidelines were not meant to have foreclosed

the district court from considering a section 5K2.0 downward

departure here. Cf. United States v. Cuevas-Gomez, 61 F.3d

749, 750 (9th Cir. 1995) (noting that automatic 16-level

sentence enhancement for certain defendants under U.S.S.G.

2L1.2(b)(2) averts due process problems "precisely because"

the district court has discretion to consider departure based

on the individual facts of the case). Certainly, a downward

departure here would not be forbidden. See id.; Concepcion,

983 F.2d at 389. Had such a downward departure been

considered, the impact of giving sentencing weight to the

acquitted murders could have been tempered by the district

20. Of course, where the text of an applicable guideline is
clear, the sentencing court may not rely upon its own views
about the purposes of sentencing nor upon a personal sense of
inequity to deviate from the Guidelines sentencing range.
See, e.g., United States v. Talladino, 38 F.3d 1255, 1265

(1st Cir. 1994). Here the sentencing policies articulated by
Congress strengthen the analysis of why the unusual features
of this case warrant consideration of a downward departure.

-39-
39

court's fact-based, discretionary judgment. That judgment

would have been informed by the background principle that a

sentence enhancement may not function as a "tail which wags

the dog" of the defendant's offense of conviction.

The approach adopted here is similar to that

adopted by the Second Circuit, which has used the mechanism

of downward departure to resolve a situation similar to this

one. In United States v. Concepcion, one of three

codefendants (Frias) was convicted on a firearms charge but

acquitted of a drug conspiracy charge. On the firearms

charges alone, the defendant's guidelines sentencing range

would have been 12-18 months. Applying the cross-reference

in U.S.S.G. 2K2.1 (the same provision at issue here), the

district court had found that the defendant actually had

engaged in the acquitted conduct, and thus determined his

base offense level with reference to that conduct. The

result was a 24-level upward adjustment, with a final

Guidelines sentencing range of 210-262 months. 983 F.2d at

389.

The Second Circuit, reviewing settled circuit

precedent, held that the district court had properly applied

the Guidelines, and that the defendants' constitutional

rights had not been violated by the consideration of the

acquitted conspiracy charge. Yet the court expressed serious

discomfort with the magnitude of the sentence enhancement

-40-
40

that had resulted. It observed: "we doubt that, with respect

to conduct of which the defendant was acquitted, the

[Sentencing] Commission intended so extreme an increase."

Id.;21 see also United States v. Monk, 15 F.3d 25, 26, 28-

29 (2d Cir. 1994). The court concluded that in the

circumstances of that case, a downward departure under

U.S.S.G. 5K2.0 might well have been warranted. Because

"the [district] court apparently [had] not consider[ed]

whether such a departure was permissible," the Second Circuit

vacated the sentence and remanded for further proceedings.

Id.22

21. Concurring, Judge Newman expressed his own view more
sharply:

Under the rigor of the current Guidelines, the
sentencing judge is required to assess evidence of
relevant misconduct, notwithstanding an acquittal,
and, if persuaded by a preponderance of the
evidence that such misconduct occurred, must
enhance the sentence according to the same scale of
severity that would have applied had the defendant
been convicted of the misconduct. . . . Thus,
after [defendant] was tried for the conspiracy
offense and acquitted, he faces virtually the same
sentence that he would have received had he been
convicted! . . . When the Guidelines and the case
law implementing them permit such a result, it is
high time for both the Commission and the courts to
give serious reconsideration to the decisions that
underlie this outcome.

983 F.2d at 395 (Newman, J., concurring) (paragraph structure
omitted).

22. On remand, the district court determined that a downward
departure was indeed appropriate and resentenced the
defendant to a term of 144 months. This new sentence was
affirmed. See United States v. Frias, 39 F.3d 391, 392 (2d

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41

On the facts here, we are not as confident, as was

the Second Circuit in Concepcion, that the sentence

enhancement at issue passes constitutional muster. We do

share the doubts of the Second Circuit that the Sentencing

Commission could have foreseen the kinds of circumstances

which in this case have coalesced to produce a mandatory life

sentence, and we agree that in these circumstances, a

downward departure under U.S.S.G. 5K2.0 was within the

court's discretion.

This case presents difficult and delicate issues,

not now susceptible of articulation through general rules.

Our concerns have arisen from a situation where acquitted

conduct calling for the challenged sentence increase is

itself very serious conduct, substantively more serious than

the offense with which defendant was charged, where

consideration of that conduct resulted in an enormous

increase23 in the sentence (including possibly beyond the

sentence that would have been imposed for a conviction),

where the ultimate sentence is itself enormous, and where the

Cir. 1994) (per curiam), cert. denied, 115 S. Ct. 1433

(1995).

23. Whether an increase in a sentence is enormous is a
matter of degree, not resolved simply by the labels of
ratios, percentages, or the like. For example, no one would
deny the real difference between an increase of a sentence
from one year to three years and an increase from 20 to 60
years, even though each represents an increase of 300
percent.

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42

judge is seemingly mandated to impose that sentence. Such a

situation increases the risk that what the judge is required

to and in fact is sentencing the defendant for is not the

convicted offense as enhanced by relevant conduct, but

directly for conduct as to which the defendant has not been

charged, tried by a jury, nor convicted on proof beyond a

reasonable doubt. See Rivera-Gomez, 67 F.3d at 1001.

The concerns which the district court expressed

here are valid, and we have tried to state the reasons for

those concerns, and forcefully so. But we also stress that

this is an extreme case. Absent the special circumstances we

have highlighted here, no comparable concerns would be raised

by cases involving even sizeable sentence increases based on

an uncharged quantity of drugs, see United States v.

Castellone, 985 F.2d 21, 24 (1st Cir. 1993), an uncharged or

acquitted firearms offense, see United States v. Gonzalez-

Vazquez, 34 F.3d 19, 25 (1st Cir. 1994), the defendant's

commission of an unchargeable state offense, see United

States v. Carroll, 3 F.3d 98 (4th Cir. 1993), or any number

of kindred sentence enhancements. The outcome we adopt here

should not be understood as an invitation to litigate

constitutional or departure issues in usual cases involving

sentence enhancements based on uncharged or acquitted

conduct. This is an unusual and perhaps a singular case, at

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43

the boundaries of constitutional sentencing law, and does not

provide an open door.

Because the district court did not recognize its

authority to consider whether a downward departure would have

been appropriate, we vacate Lombard's life sentence and

remand for further proceedings.24 See Rivera, 994 F.2d at

953; United States v. Castiello, 915 F.2d 1, 5-6 (1st Cir.

1990) (remanding for resentencing where district court

erroneously thought it had no power to depart from the

guidelines sentencing range), cert. denied, 498 U.S. 1068

(1991); cf. United States v. Garafano, 61 F.3d 113, 116 (1st

Cir. 1995) (appellate courts have broad power to "adapt

mandates to the particular problem discerned on appeal").

C. Acceptance of Responsibility

Lombard's claim that the district court erroneously

refused to award him sentencing credit for acceptance of

responsibility under U.S.S.G. 3E1.1(a) is without merit.

Lombard has not met his burden of clearly demonstrating

acceptance of responsibility for his offense. U.S.S.G.

3E1.1(a). Review of the adequacy of the defendant's proof

is only for clear error. See United States v. Ocasio-Rivera,

991 F.2d 1, 4 (1st Cir. 1993).

24. The government agreed at oral argument that if we were
to find that the district court erroneously believed that it
lacked authority to grant a downward departure, a remand for
resentencing would be the proper remedy.

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44

Lombard appears to contend that prior incriminating

statements made by him, e.g., his admissions at his state

trial that he owned the .22 caliber rifle and helped to clean

up the cabin after the murders, demonstrate his "acceptance

of responsibility." Hardly so. These statements were made

to defend against state charges and cannot plausibly be taken

as warranting a sentence reduction under section 3E1.1(a).

The making of an incriminating statement cannot, without

more, establish acceptance of responsibility. Cf. United

States v. Wrenn, 66 F.3d 1, 2-3 (1st Cir. 1995) (divulging

incriminating information to government informant did not

establish eligibility for sentencing leniency under 18 U.S.C.

3553(f)).

Application note 2 to section 3E1.1 specifically

cautions that in most circumstances, the acceptance-of-

responsibility credit "is not intended to apply to a

defendant who puts the government to its burden of proof at

trial by denying the essential factual elements of guilt, is

convicted, and only then admits guilt and expresses remorse."

U.S.S.G. 3E1.1, comment. (n.2). Lombard has not even done

that much: the record discloses not even a post-conviction

admission of guilt or remorse with respect to the federal

charges.

III

The Conviction

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Lombard claims that the district court committed a

number of trial errors that affected the jury's verdict.

Considering each claimed misstep in turn, we conclude that

there was no reversible error.

A. Admissibility of Hartley's Former Testimony

Excerpts of Hartley's prior testimony from his own

state murder trial and from Lombard's state trial were

admitted into evidence. Lombard contends that Hartley's

former testimony was inadmissible hearsay, and that its

admission violated the Confrontation Clause.

The trial court's evidentiary rulings are reviewed

for an abuse of discretion. See United States v. Abreu, 952

F.2d 1458, 1467 (1st Cir.), cert. denied, 503 U.S. 994

(1992). Any properly preserved error of constitutional

magnitude requires reversal unless shown to be harmless

beyond a reasonable doubt. See Chapman v. California, 386

U.S. 18 (1967).

1. Hartley's Prior Testimony from

Lombard's State

Trial

Approximately 60 pages of Hartley's testimony from

Lombard's state trial were admitted, containing statements

about Lombard's ownership of the .22 caliber rifle; cleaning

the cabin of blood; disposal of the bodies; Lombard's sale of

firearms to a broker; and Hartley's and Lombard's plans to

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flee. Hartley had also testified that Lombard told him on

the morning of the murders that Hartley "didn't have to take

no shit from nobody"; that Lombard and Hartley on that

Thanksgiving morning saw Martin and Lindsey (the victims)

sleeping on couches in the living room of Hartley's cabin;

and that Lombard had, after the murders, threatened to kill

Hartley and Theriault if they did not "stick" to their plan

to tell police, if questioned, that they had last seen the

two victims on the Wednesday before Thanksgiving.

Hartley's prior testimony from Lombard's state

trial was admitted under the former testimony exception to

the hearsay rule, see Fed. R. Evid. 804(b)(1), which

provides:

The following [is] not excluded by the
hearsay rule if the declarant is
unavailable as a witness:

(1) Testimony given as a witness at
another hearing of the same or a
different proceeding, . . . if the party
against whom the testimony is now
offered . . . had an opportunity and
similar motive to develop the testimony
by direct, cross, or redirect
examination.

The other conditions clearly being met, the only

question is whether Lombard had "similar motive" at his state

trial to "develop" Hartley's testimony through cross-

examination.

The party against whom the prior testimony is

offered must have had a similar, not necessarily an

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identical, motive to develop the adverse testimony in the

prior proceeding. See United States v. Salerno, 505 U.S.

317, 326 (1992) (1992) (Blackmun, J., concurring). Because

Lombard faced both liability as to murder and as to being an

accomplice to murder under Maine law, he had a very forceful

interest at his state trial in attacking Hartley's testimony,

in order to discredit his account of the actual killings, the

concealing of evidence and the attempt to escape prosecution.

This interest could hardly have been any stronger at the

federal trial, see United States v. DiNapoli, 8 F.3d 909,

914-15 (2d Cir. 1993) (en banc), and the testimony, to the

extent it related to the events preceding and following the

murders, was properly admitted.

Hartley's prior testimony from Lombard's trial

concerning the .22 caliber rifle presents a different set of

issues. In contrast to the federal trial, Lombard had little

real incentive at his state trial to attack Hartley's

statements concerning possession or ownership of the rifle.

But Lombard himself admitted during the course of his own

direct examination at his state trial that the .22 caliber

rifle belonged to him. Furthermore, other properly admitted

evidence, including Tammy Theriault's testimony that Lombard

owned the rifle, strongly corroborated Lombard's admission.

Thus, under the circumstances presented here, we believe any

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error arising from the admission of this portion of Hartley's

prior testimony was harmless beyond a reasonable doubt.

Admission of Hartley's former testimony from

Lombard's state trial did not violate the Confrontation

Clause. See U.S. Const. amend. VI ("In all criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him."). The Clause

restricts but does not proscribe the admission of a

declarant's prior testimony against a criminal defendant,

requiring only that the declarant be "unavailable" and that

the prior testimony sought to be admitted "bear[] adequate

'indicia of reliability,'" e.g., by "fall[ing] within a

firmly rooted hearsay exception." See Ohio v. Roberts, 448

U.S. 56, 65-66 (1980).

The prosecution established that Hartley was indeed

"unavailable," and his former testimony at Lombard's state

trial was within the firmly-rooted exception to the hearsay

rule carved out for prior trial testimony that has been

subjected to cross-examination. See Mattox v. United States,

156 U.S. 237 (1895) (holding that prior trial testimony is

admissible upon retrial if declarant becomes unavailable);

see also Roberts, 448 U.S. at 67-73. That testimony bears

"sufficient 'indicia of reliability'" that there was no

Confrontation Clause violation. See Roberts, 448 U.S. at 73

(citation omitted); Barber v. Page, 390 U.S. 719, 722 (1968)

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(dicta) ("where a witness is unavailable and has given

testimony at previous judicial proceedings against the same

defendant which was subject to cross-examination by that

defendant," his confrontation rights are satisfied).

2. Hartley's Prior Testimony from

His Own State Trial

Approximately two pages of Hartley's testimony from

his own state murder trial were admitted, containing

Hartley's statement that he knew that Lombard had been in

prison for eight years, and a statement by Hartley's counsel

at a sidebar conference indicating that Hartley was prepared

to testify that he believed that Lombard "was in prison for

burglaries, escapes, and this sort of thing . . . ." This

evidence, admitted prior to Hartley's change of plea, was

relevant to the government's charge that Hartley aided and

abetted unlawful firearms possession by a convicted felon.

Although this former testimony was admitted as

statements by a co-conspirator during the course and in

furtherance of the conspiracy, a problematic ground, we find

no grounds for reversal.25

25. The co-conspirator exception could not have applied to
the former testimony, because the conspiracy had been
terminated at least by the date that the co-conspirators were
arrested. See United States v. Palow, 777 F.2d 52, 57 (1st

Cir. 1985) ("[I]t is beyond doubt that the challenged post-
arrest statements were not made in furtherance of the
conspiracy."), cert. denied, 475 U.S. 1052 (1986); see also

Krulewitch v. United States, 336 U.S. 440 (1949) (statements

made after objectives of conspiracy have failed are not

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Lombard failed properly to preserve his arguments

for appeal. He posed only a general objection by a motion in

limine, but made no comparable objection at trial.26 That

was not enough. See United States v. Reed, 977 F.2d 14, 17

(1st Cir. 1992) ("A motion in limine without subsequent,

contemporaneous objection at trial . . . is ordinarily

insufficient to preserve an evidentiary ruling for appeal.").

No prejudice resulted, in any event, from admission

of this evidence. See United States v. Olano, 113 S. Ct.

admissible under the co-conspirator exception). Also, since
Lombard was neither present nor represented at Hartley's
state trial and had no opportunity to cross-examine him
there, the testimony was not admissible under Rule 804(b)(1).
Admission of the sidebar statement by Hartley's counsel
as to what he believed his client was about to say presents
difficulties as well, for other reasons. Cf. United States

v. Harris, 914 F.2d 927, 930-31 (7th Cir. 1990). Sometimes,

an attorney's statements may be imputed to and admitted
against his client as a principal under Fed. R. Evid.
801(d)(2)(D). See Harris, 914 F.2d at 931. But cf. United

States v. Valencia, 826 F.2d 169, 172-73 (2d Cir. 1987)

(acknowledging that an attorney's statements can sometimes be
used against client-defendant, but urging caution in
admitting such statements in criminal context to avoid
infringing defendant's right against self-incrimination, the
right to counsel of the defendant's choice [i.e., insofar as
admission of such a statement might require counsel to be
disqualified], and the right to effective assistance of
counsel). It is doubtful, though, whether this rule would
apply to such an offer of proof by counsel at sidebar. In
any event, even if the rule properly applied, it would only
make the statements admissible against Hartley, not Lombard.
See Fed. R. Evid. 801(d)(2)(D) (statement by a party's agent

is only admissible against that party).

26. The defendant's only contemporaneous objection to the
testimony at trial was limited to specific language in the
transcript of the earlier proceeding. This objection was
obviated when the district court ordered the language to be
redacted before the testimony was admitted.

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51

1770, 1778 (1993). Theriault's testimony, as well as that of

her mother, independently established Hartley's knowledge of

Lombard's status as a convicted felon, and Lombard himself

stipulated to having committed prior felonies.27 Admission

of the challenged evidence was not plain error, and there is

no basis for reversal. See id. at 1777-78.

C. Admission of Testimony About the Murders

The admission of a substantial amount of evidence

concerning the murders, Lombard argues, was error under Fed.

R. Evid. 403, because the prejudicial impact of that evidence

outweighed its probative value.

Lombard preserved his Rule 403 objection only with

respect to the Theriault testimony. He has not met his

burden of showing an abuse of discretion in the admission of

that testimony. See Abreu, 952 F.2d at 1467. A decision by

the district court on a Rule 403 determination must stand

27. Because Hartley's testimony from his own previous trial
was introduced for the purpose of proving Hartley's knowledge
of Lombard's status as a felon, and not for the purpose of
providing the jury with unnecessary details about Lombard's
stipulated prior felonies, there was no error under United

States v. Tavares, 21 F.3d 1, 6 (1st Cir. 1994) (en banc)

("[W]e acknowledge that in some cases evidence concerning the
nature of the prior conviction will be admissible for
impeachment or other reasons, despite its lack of probative

value on the prior conviction element of the crime."
(emphasis added)). In any event, the Tavares en banc

decision had not been handed down at the time of Lombard's
trial (December 1993) and thus does not affect the
determination of plain error. Cf. United States v. Collins,

60 F.3d 4, 7 (1st Cir. 1995).

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52

absent a demonstration of "extraordinarily compelling

circumstances." United States v. Lewis, 40 F.3d 1325, 1339

(1st Cir. 1994); see also United States v. Rodriguez-Estrada,

877 F.2d 153, 156 (1st Cir. 1989). There are no such

circumstances here.

That Lombard posed no Rule 403 objection to the

admission of Hartley's and even his own former testimony

about the murders undercuts his objection to Theriault's

testimony. Her testimony about Hartley's and Lombard's

conduct in connection with the murders was at least equally

relevant. One of the objectives of the defendants'

conspiracy charged was to "flee the State of Maine in order

to avoid prosecution or the giving of testimony in connection

with the homicides of Morris Martin and Paul Lindsey, Jr."

The indictment also charged that the defendants conspired to

"dispose of certain evidence of Henry P. Lombard's unlawful

possession" of a firearm. Proof of these charges required

proof of the events surrounding the murders, the defendants'

knowledge of the murders, and the defendants' joint conduct

following the murders.

The district court recognized that it was neither

possible nor appropriate to excise all evidence of the

murders from the government's proof of the defendants'

conspiracy. It correctly observed that the evidence touching

on the murders had some prejudicial effect, but explicitly

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53

weighed that effect against its probative value, and decided

in favor of admitting much, but not all, of the testimony

offered. There are no "extraordinarily compelling

circumstances" that would warrant disturbing the district

court's balancing of prejudice against probative value here.

See Rivera-Gomez, 67 F.3d at 996-98.

The convictions are affirmed. The sentence on

Count 2 of the indictment is vacated, and the case is

remanded for resentencing consistent with this opinion.

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