United States v. Hardy

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1841

UNITED STATES OF AMERICA,

Appellee,

v.

FREDERICK HARDY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Cyr, Boudin and Lynch,

Circuit Judges.

Owen S. Walker for appellant.

Ralph F. Boyd, Jr., Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, and Michael J. Pelgro,

Assistant United States Attorney, were on brief for appellee.

November 8, 1996

CYR, Circuit Judge. Frederick Hardy challenges two
CYR, Circuit Judge.

sentencing rulings by the district court which successively

denied him a downward adjustment for acceptance of responsibility

and imposed an upward departure following his trial and convic-

tion on three felony charges. We affirm the district court

judgment.

I
I

BACKGROUND
BACKGROUND

A. The Offense of Conviction
A. The Offense of Conviction

On the evening of April 18, 1991, multiple gunshots

rang out on the grounds of the Lenox Street Housing Development

in Boston. Five Boston police officers in plain clothes, members

of the Anti-gang Violence Unit, were on routine patrol at the

time, and saw Raymond Moreno, Stephen Fernandes, and appellant

Hardy run from the area where the shots had been fired. The

officers gave chase on foot. Just before submitting to arrest,

Moreno handed a long, dark, cylindrical object to Hardy, who kept

on running through the residential neighborhood adjacent to the

housing development. Shortly after the officers overtook Hardy,

but before he could be subjected to arrest, he tossed a loaded

Browning .32 caliber semi-automatic pistol onto the ground.

Following Hardy's arrest, the officers retraced his

likely route from the shooting scene to the arrest scene and

found a fully-loaded, sawed-off, twelve-gauge, double-barrel

shotgun planted barrel-up in the backyard garden of a residence

occupied by a family with three young children. Nearby,

2

Fernandes was arrested while in possession of an unloaded Helwan

9 millimeter semi-automatic pistol, later confirmed to be the

firearm discharged at the Lenox Street Housing Development site

where the police first observed Hardy and two associates. Later,

Hardy falsely denied knowing either Moreno or Fernandes, claimed

to be living with his mother, and gave a false home address.

B. The Trial and First Appeal
B. The Trial and First Appeal

Hardy was charged with being a felon in unlawful

possession of a firearm, 18 U.S.C. 922(g)(1), as well as

unlawful possession of ammunition, id., and with possession of an

unregistered firearm, 26 U.S.C. 5861(d). As Hardy's extensive

criminal record included three violent felonies and one serious

drug offense since 1985, the government gave notice that it

intended to seek the mandatory minimum fifteen-year prison

sentence authorized under the Armed Career Criminal Act (ACCA),

18 U.S.C. 924(e); see also U.S.S.G. 4B1.4. Following trial,

Hardy was convicted and sentenced to 262 months in prison.

While Hardy's first appeal was pending, this court held

that a criminal defendant exposed to an ACCA sentencing enhance-

ment may challenge any predicate state court conviction during

his federal sentencing proceeding even though his state court

remedies have never been exhausted. United States v. Paleo, 967

F.2d 7, 11-12 (1st Cir. 1992). We accordingly remanded Hardy's

case to the district court for reconsideration in light of Paleo.

C. The First Remand and Second Appeal
C. The First Remand and Second Appeal

3

On remand, the district court again imposed a 262-month

prison term, after rejecting Hardy's claim that his predicate

state court convictions were invalid. United States v. Hardy,

829 F. Supp. 478 (D. Mass. 1993). Hardy again appealed. Without

reaching the sentencing claims, this court vacated Hardy's

federal convictions on the ground that the prosecution had made

improper comments during closing argument at trial. United

States v. Hardy, 37 F.3d 753 (1st Cir. 1994).

D. The Second Remand and Sentencing
D. The Second Remand and Sentencing

During the second remand, Hardy obtained a continuance

and successfully challenged two of the predicate state court

convictions. As he was no longer subject to the ACCA mandatory

minimum sentence, he then pled guilty to all three federal

charges.

At the resentencing, the district court began its

guideline calculation with a base offense level (BOL) of 18, see

U.S.S.G. 2K2.1(a)(1) (Unlawful Receipt, Possession, or Trans-

portation of Firearms or Ammunition) (1990), then adopted a

revised presentence report (PSR) recommendation that Hardy not

receive a two-level downward adjustment for acceptance of respon-

sibility, see id. 3E1.1.1 The court set Hardy's criminal

history category (CHC) at III (6 points), by counting four

1Unless otherwise indicated, we cite to the November 1990
guidelines in effect on the date of the offense of conviction.

4

unvacated prior convictions at one point each, see id. 4A1.1,2

and adding two points because Hardy was on probation at the time

the offense of conviction was committed. The resulting guideline

sentencing range (GSR) for Level 18, CHC III, was 33 to 41

months.

The district court decided to make an upward departure

due to Hardy's "ten-year history of grievous antisocial conduct,"

citing eight reasons: (1) CHC III did not adequately reflect

either the seriousness of Hardy's past criminal conduct or the

likelihood of recidivism; (2) only one month before the offense

of conviction, Hardy had been arrested and charged with another

"very serious offense" his and Moreno's shooting and attempted

murder of a fourteen-year-old boy, Kenneth Walker, at the same

Lenox Street Housing Development; (3) Hardy was on bail in the

Walker case at the time he committed the offense of conviction;

(4) Hardy had been arrested and charged with four violent felo-

nies between 1985 and 1990, including kidnapping and assault and

battery, which were not taken into account in the CHC III calcu-

lation since the state court charges had been dismissed; (5)

Hardy's two prior state court convictions for assault and battery

against his girlfriend and another woman had been vacated, not

because Hardy was not responsible for the criminal conduct

2The four state-court convictions counted by the district
court were: (1) a 1985 conviction for cocaine possession; (2) a
1988 conviction for assault and battery on a police officer; (3)
a 1990 conviction for drug possession; and (4) a 1990 conviction
for possession with intent to distribute cocaine and heroin at
Lenox Street.

5

underlying the convictions but due to procedural infirmities at

trial;3 (6) "the [two] weapons used . . . in this federal case [a

sawed-off shotgun and semi-automatic pistol] were particularly

dangerous weapons"; (7) officers of the Anti-gang Violence Unit

attested that the offense of conviction was part of a long series

of violent drug-related offenses in the same neighborhood,

committed by street gangs like the Columbia Point Dogs, of which

Hardy, Moreno, and Fernandes were known members; and (8) the

offense of conviction occurred in an economically depressed

neighborhood "where very vulnerable people live."

The district court determined that even a full "hori-

zontal" departure from Level 18, CHC III (33-41 months), to Level

18, CHC VI (57-71 months), would be inadequate to reflect these

eight factors. Accordingly, the court determined upon a "verti-

cal" upward departure as well, from Level 18, CHC VI (57-71

months) to Level 24, CHC VI (100-125 months). The court gauged

its vertical departure through reference to the 121-151 month

(Level 32, CHC I) GSR which would have been applicable to Hardy

under the then-current (i.e., November 1994) guidelines.4

3According to the revised PSR, the 1985 assault and battery
charges were based on evidence that Hardy, in a jealous rage,
kicked his girlfriend in the head and upper body then punched her
in the head before throwing her over a third-floor balcony. In
the subsequent incident, he assaulted the same girlfriend and her
sister, beating both women about their heads and faces. Hardy's
girlfriend was hospitalized on both occasions.

4The court arrived at its adjusted BOL of 32 by increasing
the BOL (26) six levels based on "various offense characteris-
tics." Although the court did not cite to the particular guide-
line sections, the government concedes that the relevant guide-
lines were U.S.S.G. 2K2.1(b)(4) (1994) (use or possession of

6

Ultimately, the court settled upon the 120-month prison sentence

from which Hardy now appeals.

II
II

DISCUSSION
DISCUSSION

firearm with an obliterated serial number) and 2K2.1(b)(5)
(1994) (use or possession of firearm in connection with another
felony offense [i.e., ongoing drug distribution]).

7

A. Acceptance of Responsibility
A. Acceptance of Responsibility

The district court denied a two-level downward adjust-

ment for acceptance of responsibility, see U.S.S.G. 3E1.1, for

the following reasons:

There was in fact a trial of the offense in
this case four or so years ago, [during
which] the defendant denied knowing the code-
fendant in that case, and . . . that . . .
does bespeak . . . failure to accept respon-
sibility, and then there was an appeal . . .
during which there still was no acceptance of
responsibility, and . . . I think I should
consider the fact . . . that a plea of guilty
in this case did not occur . . . until [after
Hardy's two predicate convictions had been
set aside in state court.] I don't criticize
counsel for undertaking that because it makes
some difference to the kinds of sentence that
may be ultimately imposed in this case, but
it strikes me that none of this suggests that
there has been a sincere acceptance of re-
sponsibility.

Hardy asserts two challenges to the district court ruling.5

First, while acknowledging that he must establish any

entitlement to an adjustment for acceptance of responsibility,

see United States v. Gonzalez, 12 F.3d 298, 399 (1st Cir. 1993),

Hardy argues that section 3E1.1 creates a rebuttable presumption

that a defendant who has pled guilty has carried his burden of

proof, even though the record discloses no affirmative manifesta-

tions of remorse. U.S.S.G. 3E1.1, comment. (n.3) (1994).

5Sentencing Guidelines interpretations are reviewed de novo,

United States v. Bennett, 60 F.3d 902, 904 (1st Cir. 1995),

whereas subsidiary factual findings, including the ultimate
determination whether a defendant has sincerely "accepted respon-
sibility" for the charged offense, are reviewed only for clear
error, United States v. Crass, 50 F.3d 81, 83 (1st Cir. 1995).

8

This contention is severely undercut by the pertinent

guideline commentary, however, which plainly provides that

"[e]ntry of a plea of guilty prior to the commencement of trial

combined with truthful admission of involvement in the offense

and related conduct will constitute significant evidence of

acceptance of responsibility." U.S.S.G. 3E1.1, comment. (n.3)

(emphasis added). The revised PSR discloses that Hardy, despite

ample time and opportunity, has never truthfully admitted the

facts underlying the offense of conviction, let alone subjective-

ly manifested "candor and authentic remorse." See United States

v. Wheelwright, 918 F.2d 226, 229 (1st Cir. 1990).

Moreover, even assuming Hardy had truthfully admitted

the relevant facts, nothing in the commentary upon which he

relies remotely indicates that a guilty plea, even combined with

a truthful admission, see U.S.S.G. 3E1.1, comment. (n.3), gives

rise to a rebuttable presumption that a two-level downward

adjustment for acceptance of responsibility will follow. Indeed,

Hardy's prolonged reticence aside, the commentary explicitly

states that even the "significant evidence of acceptance of

responsibility" generated by "a plea of guilty prior to the

commencement of trial combined with truthful admission," id.,

"may be outweighed by conduct of the defendant that is inconsis-

tent with such acceptance of responsibility. A defendant who

enters a guilty plea is not entitled to an adjustment under this

section as a matter of right." Id. (1994) (emphasis added); see

U.S.S.G. 3E1.1(c) & comment. (n.3) (1990).

9

Rather, the sentencing court must engage in a fact-

intensive determination based on all evidence material to the

defendant's acceptance of responsibility. We in turn accord

great deference to the sentencing court's determination. See id.

comment. (n.5); United States v. Royer, 895 F.2d 28, 29 (1st Cir.

1990) ("Credibility and demeanor play a crucial role in determin-

ing whether a person is genuinely contrite," and "the sentencing

judge has the unique opportunity of observing the defendant . . .

and evaluating acceptance of responsibility in a live context.").

Thus, nothing can come from Hardy's "rebuttable presumption"

construct, both because it is legally unsound and because Hardy

lied to the police and to a magistrate judge regarding his lack

of prior association with codefendants Moreno and Fernandes, and

gave a false home address which has never been recanted.6

6As a corollary argument, Hardy urges a third remand for
resentencing because he was unfairly surprised by the sentencing
court's refusal to follow "accepted" practice in the United
States District Court for the District of Massachusetts by
allowing an automatic 3E1.1 reduction to any defendant who
pleads guilty. Even assuming such a practice, which the govern-
ment disputes, Hardy's reliance upon it would be objectively
unreasonable given the unequivocal guideline provision that "[a]
defendant who enters a guilty plea is not entitled to a sentenc-
ing reduction under this section as a matter of right," U.S.S.G.
3E1.1(c), not to mention the decisional law in this circuit,
see United States v. Garcia, 905 F.2d 557, 561 (1st Cir.) ("Down-

ward adjustments for acceptance of responsibility are not auto-
matically conferred upon every accused who pleads guilty."),
cert. denied, 498 U.S. 986 (1990). Since 3E1.1 makes clear

that the district court must assess each defendant's protesta-
tions of remorse, it would be inconsistent with its spirit to
permit defendants to withhold manifestations of remorse simply
because the district court has not explicitly invited them. See

Royer, 895 F.2d at 30 (noting that 3E1.1 is not designed to

encourage "empty platitudes").

10

Second, Hardy contends that he reasonably refrained

from pleading guilty until after he had returned to state court

to set aside two of his predicate convictions, since the govern-

ment's decision to invoke the ACCA otherwise would have exposed

him to a possible life sentence and at least a fifteen-year

sentence, instead of a ten-year maximum. Consequently, he

argues, the district court improperly relied on the delayed

guilty plea as a basis for finding that he had not accepted

responsibility for his crimes.

It is far from clear that the statement made by the

district court was intended to convey the message Hardy suggests.

Viewed in context, the statement may well have been intended

merely as a narrative of the prolonged procedural travel of this

case, during which Hardy never uttered a word remotely resembling

remorse. In all events, assuming the statement were to be

interpreted as Hardy suggests, we conclude that any resulting

error was harmless in that it did not affect Hardy's substantial

rights, see Fed. R. Crim. P. 52(a); United States v. Curran, 926

F.2d 59, 62 (1st Cir. 1991), since the alternative basis for

denying the requested 3E1.1 reduction was entirely valid.7

7See United States v. Nunez-Rodriquez, 92 F.3d 14, 19 (1st

Cir. 1996) (noting that a sentencing decision founded on an
inappropriate factor may be affirmed if "excision of the improper
ground does not obscure or defeat the reasoning of the district
court," and we are "left, on the record as a whole, with the
definite and firm conviction that removal of the inappropriate
ground would not be likely to alter the district court's view of
the sentence rightfully to be imposed").

11

After his arrest, Hardy lied when he told the police he

had not known codefendant Moreno prior to April 18, 1991, whereas

in fact Hardy and Moreno had shot Kenneth Walker in March 1991.

In addition, the record reveals that Hardy, after his arrest,

lied about not having possessed a firearm, and gave police a

false home address. Undeterred, Hardy argues that a false

statement to the police immediately after arrest as distin-

guished from a misrepresentation to the probation office or the

court after criminal proceedings have been commenced should

not be treated as a failure to accept responsibility. We need

venture no opinion on this matter, since Hardy cannot come within

the proposed rule in any event.

Rather, the revised PSR indicates that though Hardy

first provided the false home address to the police, thereafter

he repeated it to the United States Pretrial Services Department

and a magistrate judge. Moreover, Hardy lied about possessing

and concealing the dangerous firearm (sawed off shotgun) rather

than assisting in its recovery, and has never recanted. Finally,

he attempted to evade and resist arrest rather than surrender

voluntarily. By contrast, the applicable guideline commentary

clearly identifies the kinds of conduct considered indicia of

acceptance of responsibility: a "voluntary and truthful admis-

sion to authorities of involvement in the offense," a "voluntary

surrender to authorities promptly after commission of the of-

fense," and "voluntary assistance to authorities in the recovery

of the fruits and instrumentalities of the offense." See

12

U.S.S.G. 3E1.1, comment. (n.1(c)-(e)).

We emphasize that it was especially appropriate in

these circumstances for the district court to consider "the

timeliness of the defendant's conduct in manifesting . . .

acceptance of responsibility," see U.S.S.G. 3E1.1, comment.

(n.1(g)), particularly since Hardy failed even to request a

continuance to challenge the predicate state court convictions

before his first trial. By ignoring this plain option, and

failing to explain, Hardy put the government to the needless

expense of trying him. See United States v. De Leon Ruiz, 47

F.3d 452, 455 (1st Cir. 1995) (citing U.S.S.G. 3E1.1, comment.

(n.2) (1994)). Finally, the sentencing court assiduously

searched the record and observed Hardy's in-court demeanor for

any indication that he was truly remorseful. Instead, it found

only his unelucidated guilty plea, with no mention of remorse,

and an extensive record of persisting criminal conduct "inconsis-

tent" with genuine remorse. We find no error.

B. Upward Departure
B. Upward Departure

A decision to depart beyond the prescribed GSR is

reviewed for "abuse of discretion" only, see Koon v. United

States, U.S. , , 116 S. Ct. 2035, 2046-47 (1996), and

guided by three principal inquiries: (1) whether the asserted

grounds for departure were permissible under the guidelines; (2)

if so, whether the record evidence adequately demonstrates the

required criteria; and (3) whether the degree of departure was

reasonable. See United States v. DeMasi, 40 F.3d 1306, 1322 (1st

13

Cir. 1994), cert. denied, 115 S. Ct. 947 (1995). Hardy assigns

nine reasons for overturning the upward departure.

1. Validity of the Departure Criteria
1. Validity of the Departure Criteria

The guidelines prescribe two types of departure mecha-

nisms. Section 4A1.3 focuses primarily on past criminal conduct,

and permits an upward departure if the defendant's pre-departure

CHC, see U.S.S.G. 4A1.1, "does not adequately reflect the

seriousness of [his] past criminal conduct or the likelihood that

the defendant will commit other crimes." Id. 4A1.3. Normally,

these section 4A1.3 departures are "guided" and horizontal. That

is, within the defendant's total offense level the court moves

horizontally across the sentencing table through successively

higher CHCs until it reaches an appropriate, or "reflective"

sentencing range. Only in extreme cases those involving

egregious past criminal conduct may a section 4A1.3 departure

exceed the GSR prescribed under CHC VI. See United States v.

Mendez-Colon, 15 F.3d 188, 190 (1st Cir. 1994).8

Section 5K2.0, on the other hand, permits an upward

departure if the district court finds "an aggravating . . .

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

consideration by the Sentencing Commission in formulating the

8Under U.S.S.G. 4A1.3 (November 1990), the sentencing
court was permitted to depart beyond CHC VI to any appropriate
higher sentence under 4A1.3 ("unguided" sentence), whereas
under the current version departures beyond CHC VI are "guided";
that is, beyond CHC VI, sentencing courts are to move down the
CHC VI column to successively increasing offense levels until an
appropriate sentencing range is reached. United States v. Emery,

991 F.2d 907, 913 n.9 (1st Cir. 1993).

14

guidelines." U.S.S.G. 5K2.0 (quoting 18 U.S.C. 3553(b)).

The section 5K2.0 departure mechanism focuses primarily on

"unusual" attributes of the offense of conviction, rather than

any underrepresentation of past criminal conduct in the

defendant's CHC. Section 5K2.0 departures are "unguided," and

functionally "vertical," meaning that the sentencing court need

not restrict itself to considering successively higher CHC ranges

along the "horizontal" axis in the sentencing table, but may

select whatever sentence appropriately reflects the "unusual"

circumstances in the case. See generally Bruce M. Selya &

Matthew R. Kipp, An Examination of Emerging Departure Jurispru-

dence Under the Federal Sentencing Guidelines, 67 Notre Dame L.

Rev. 1, 39-40 (1991).

Hardy first argues that the district court committed an

error of law by relying on the number and dangerousness of the

weapons used by him and his two associates in the Lenox Street

shooting spree as grounds for an upward departure. He points out

that the November 1990 guidelines expressly constitute the number

of firearms a specific offense characteristic under section 2K2.2

(Unlawful Trafficking), but not under section 2K2.1 (Unlawful

Possession), thereby implicitly rejecting the number of firearms

as a ground for departure under section 2K2.1. See United States

v. Enriquez-Munoz, 906 F.2d 1356, 1361 (9th Cir. 1990). But see

U.S.S.G. 2K2.1 (1994) (amended version, designating number of

firearms as specific offense characteristic). Hardy also notes

that section 2K2.1(a)(1) and 26 U.S.C. 5861 already provide a

15

twelve-level sentencing enhancement for the increased risk

inherent in possessing some types of firearms (e.g., Hardy's

sawed-off shotgun), see U.S.S.G. 2K2.1(a), thereby suggesting

that the Commission meant to foreclose departures based on the

"dangerousness" of all other weapon types (e.g., Hardy's semi-

automatic pistol).

Notwithstanding the explicit consideration given to the

number of firearms in U.S.S.G. 2K2.2, a departure criterion

cannot be deemed impermissible in all circumstances unless

categorically foreclosed by the Commission. See Koon, 116 S. Ct.

at 2051. The Commission "d[id] not intend to limit the kinds of

factors, whether or not mentioned anywhere else in the guide-

lines, that could constitute grounds for departure in an unusual

case." U.S.S.G. Ch. 1, Pt. A, intro. comment.(4)(b) (emphasis

added).

Hardy pled guilty to certain firearm possession charg-

es. The reference to the number of firearms was made by the

district court in the context of its discussion of the heightened

dangerousness associated with the manner in which Hardy and his

cohorts not only possessed but used their firearms. See infra

Section II.B.2(b); cf. Enriquez-Munoz, 906 F.2d at 1361 (reject-

ing departure based on number of weapons and defendant's intent

to cause "greater harm," where sentencing court made no finding

of such intent, and purchase/sale of multiple weapons created no

demonstrably greater harm). The use and/or indiscriminate

disposal of multiple weapons which took place in this case surely

16

elevated their dangerousness well above the level associated with

the simple possession of a single firearm.

17

Moreover, rather than being categorically forbidden as

a departure ground under section 2K2.1, the heightened dangerous-

ness occasioned by the usage, and indiscriminate abandonment, of

the firearms involved here is encouraged as a departure ground in

appropriate circumstances:

If a weapon or dangerous instrumentality was used

or possessed in the commission of the offense the

court may increase the sentence above the autho-
rized guideline range. The extent of the increase
ordinarily should depend on the dangerousness of
the weapon, the manner in which it is used, and
the extent to which it endangered others. The

discharge of a firearm might warrant a substantial

sentence increase.

See U.S.S.G. 5K2.6 (emphasis added).9

Finally, the fact that the Commission decided against

making "weapon type" a specific offense characteristic under

section 2K2.1 in no sense indicates that it intended to preclude

a judicial determination that certain types of weapons are

inherently more dangerous than others, but simply that possession

of a particular type of weapon, in and of itself, is not invari-

ably indicative of the defendant's intent. For example, the

guidelines permit a downward adjustment for the illegal posses-

sion of a firearm intended for recreational use only. See

U.S.S.G. 2K2.1, comment. (n.2) ("[S]ome rifles or shotguns may

be possessed for criminal purposes, while some handguns may be

9Even though the disjunctive employed in 5K2.6 (i.e.,

"used or possessed") might be read to apply to offenses of
conviction which would not contemplate that the defendant have
possessed or used any firearm at all, its plain language would
encompass a firearm possession offense where defendant not only
passively possessed the firearm, but also used (i.e., discharged

or recklessly discarded) it in an exceptionally dangerous manner.

18

suitable for recreation. Therefore, the guideline is not based

upon the type of weapon."); see also id. 2K2.1(b)(1) (citing

recreational intent as mitigating sentencing factor).

Thus, the omission of a specific offense characteristic

relating to "weapon type" falls far short of a categorical

prohibition. Accordingly, to the extent a sentencing court

supportably finds that a defendant's choice of weapons, and the

actual manner of its use, increased the danger to "unusual"

levels, an upward departure under U.S.S.G. 5K2.6 would be

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

see also, e.g., United States v. LeBon, 800 F. Supp. 1012, 1017

(D. Mass. 1992) (departure warranted for defendant's use of

semiautomatic weapons).

2. Existence Vel Non of Departure Criteria
2. Existence Vel Non of Departure Criteria

We next inquire whether the record facts adequately

support each departure criterion relied upon by the district

court. DeMasi, 40 F.3d at 1322; see supra Section I.D. Hardy

directly challenges the sentencing court's reliance on: (i) the

determination that CHC III would not adequately reflect either

the seriousness of Hardy's criminal history or the likelihood of

recidivism, see U.S.S.G. 4A1.3; and (ii) three "unusual"

offense-related characteristics of the Lenox Street shooting

incident, see id. 5K2.0, specifically that Hardy's fire-

arm/ammunition possession on April 18, 1991, facilitated his

ongoing participation in gang-related activities; the Lenox

Street shooting occurred in a crowded, low-income neighborhood

19

particularly vulnerable to crime; and the unusual level of risk

created by the number and types of firearms, as well as the

manner of their use in the Lenox Street shooting.

Substantial deference is due a sentencing court's

assessment that the cumulative circumstances are unusual enough

to implicate a departure criterion, thereby removing the case

from the "heartland":

[T]he district court must make a refined assess-
ment of the many facts bearing on the outcome,
informed by its vantage point and day-to-day expe-
rience in criminal sentencing. Whether a given
factor is present to a degree not adequately con-
sidered by the Commission, or whether a discour-
aged factor nonetheless justifies departure be-
cause it is present in some unusual or exceptional
way, are matters determined in large part by com-
parison with the facts of other Guidelines cases.
District courts have an institutional advantage
over appellate courts in making these sorts of
determinations, especially as they see so many
more Guidelines cases than appellate courts do. .
. . "To ignore the district court's special compe-
tence 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 the trial
judge to the fact-specific circumstances of the
case . . . ."

Koon, 116 S. Ct. at 2046-47 (quoting United States v. Rivera, 994

F.2d 942, 951 (1st Cir. 1993) (Breyer, C.J.)) (other citations

omitted).

a) Uncounted Past Criminal Conduct ( 4A1.3)
a) Uncounted Past Criminal Conduct ( 4A1.3)

Hardy challenges the district court's finding, by a

preponderance of the evidence, that he committed the criminal

conduct underlying the two assault and battery convictions

vacated by the state court following his first trial. See supra

20

note 3. He uninformatively contends that the only reason he did

not claim actual innocence of these charges when he returned to

state court was that his motions to vacate focused exclusively on

the procedural infirmities at trial. Second, he contends that

the district court's recidivism ruling is not supported by the

record. He points out that he is no longer a young adult (i.e.,

in his early twenties or younger), thus not within the statisti-

cal class of criminal defendants most prone to recidivism, see

U.S.S.G. 4A1.3, backg'd; United States v. Fahm, 13 F.3d 447,

450 (1st Cir. 1994), and further that his street gang disbanded

after repeated federal prosecutions. These arguments fundamen-

tally misapprehend the departure rationale relied on by the

district court.

Section 4A1.3 specifically encourages upward departures

based on "reliable information" that a defendant previously

engaged in "prior similar adult criminal conduct not resulting in

a conviction," U.S.S.G. 4A1.3(e),10 which plainly encompasses

charged conduct underlying vacated convictions. See, e.g.,

10Without citation to authority or developed argumentation,
Hardy contends that the quoted language should only apply to
charges no longer pending against a defendant (i.e., not subject

to possible retrial), and that a defendant need object to a PSR
description of "prior similar adult criminal conduct not result-
ing in a conviction" only if the PSR states that the defendant
engaged in the criminal activity, and not merely that the police
so reported. We have been no more successful than Hardy in
finding support for either of these conclusory contentions. See

United States v. Zannino, 895 F.2d 1, 17 (1st Cir.) (invoking

"the settled appellate rule that issues adverted to in a perfunc-
tory manner, unaccompanied by some effort at developed argumenta-
tion, are deemed waived"), cert. denied, 494 U.S. 1082 (1990).

Nor do we discern a sound basis in reason or common sense.

21

United States v. Guthrie, 931 F.2d 564, 572-73 (9th Cir. 1991)

(noting that vacated convictions may be considered under

4A1.3); accord, e.g., Fahm, 13 F.3d at 451 n.3 (affirming use of

uncharged and unadjudicated criminal conduct as bases for upward

departures). As the trier of fact at sentencing, therefore, the

district court was permitted to credit reliable evidence that

Hardy committed the criminal conduct underlying the two assault-

and-battery convictions vacated during these proceedings, see

United States v. Figaro, 935 F.2d 4, 8 (1st Cir. 1991) (sentenc-

ing court "'enjoys wide discretion in determining both the

relevance and reliability of sentencing information'") (citation

omitted). The unchallenged statement in the revised PSR that

Hardy kicked his girlfriend in the head and upper body with his

shod foot, punched her in the head, and threw her over a third-

floor balcony, see supra note 3, afforded a competent basis for

the district court's finding. Whether or not Hardy should have

asserted his actual innocence upon returning to state court, he

concedes that he has never denied or objected to the description

in the revised PSR of the two violent assaults underlying the

vacated convictions, see United States v. Rosales, 19 F.3d 763,

770 (1st Cir. 1994) (court may credit, as true and accurate,

PSR's unchallenged description of past criminal conduct); Figaro,

935 F.2d at 8. Nor does Hardy allude on appeal to any exculpato-

ry evidence relating to the vacated convictions.

The second claim fares no better, for it would have us

disregard not only the two vacated convictions but also the

22

cumulative evidence upon which the district court relied in

determining that Level 18, CHC III, underrepresented the serious-

ness of Hardy's past conduct and the likelihood of recidivism.

Between 1987 and 1989, Hardy was arrested four times for assaults

and/or kidnapping, involving violent attacks in which he various-

ly used his hands and feet, a rock, a stick, a bottle, and a

knife against his victims. See U.S.S.G. 4A1.3(e). At the time

of the offense of conviction, Hardy not only was on probation in

connection with a prior drug conviction, but also on bail pending

charges (assault with intent to murder and firearms possession)

in connection with his and Moreno's shooting of Kenneth Walker.

See id. 4A1.3 (departure factors may include whether offense of

conviction was committed "while on bail or pretrial release for

another serious offense"); United States v. Diaz-Martinez, 71

F.3d 946, 952 (1st Cir. 1995).11 The Walker shooting occurred in

the Lenox Street Housing Development a mere month prior to the

offense of conviction. See Figaro, 935 F.2d at 7 ("[R]ecency of

a prior offense may be considered an indicator of increased

likelihood of recidivism, exacerbating the seriousness of a

defendant's criminal history."). Given his recent, persistent,

and escalating record of violent behavior, see United States v.

Doe, 18 F.3d 41, 47 (1st Cir. 1994) (noting that departure was

warranted where defendant's past criminal conduct demonstrated

"significantly unusual penchant for serious criminality"), we

11As the government aptly notes, Hardy was under some sort
of court supervision at the time of almost all his prior arrests.

23

find no abuse of discretion in the district court's decision that

an upward departure was warranted because Hardy's pre-departure

CHC underrepresented the seriousness of his past criminal conduct

and the likelihood of recidivism. See Koon, 116 S. Ct. at 2046-

47 (holding that district court is entitled to "substantial

deference" in its determination that particular facts of case

implicate a departure factor).

b) Offense-Related Characteristics ( 5K2.0)
b) Offense-Related Characteristics ( 5K2.0)

Similarly, we find little merit in the claim that the

sentencing court abused its discretion in finding three "unusual"

offense-related characteristics cumulatively adequate to remove

Hardy's case from the "heartland" of section 2K2.1 cases. Given

their recognized utility and ubiquity in a very broad spectrum of

criminal activities, firearms presumably may be possessed in

circumstances posing widely divergent degrees of dangerousness.

Accordingly, it is not apparent to us that the Sentencing Commis-

sion attempted, let alone managed, to devise section 2K2.1 with a

view to the extraordinary dangers posed by gang members indis-

criminately shooting and discarding particularly dangerous

firearms in crowded inner-city residential areas.12

12Hardy argues that street gangs are such a "fact of life"
in the inner city that the Commission could not but have antici-
pated that a large percentage of criminal defendants would be
street gang members. Of course, the focus of the "heartland"
inquiry is not nearly so broad. Instead, sentencing courts are
to inquire whether one reasonably would expect an unusual number
of defendants convicted of firearm/ammunition possession to be
gang members. See, e.g., Koon, 116 S. Ct. at 2052 (rejecting

"career loss" as downward departure criterion for purposes of
2H1.4, since it is not "unusual" for many public officials
convicted of civil rights violations to lose their jobs).

24

Hardy and his associates repeatedly discharged a semi-

automatic weapon at nighttime within a crowded residential

housing development and, while fleeing from the scene to evade

arrest, Hardy planted a loaded sawed-off shotgun barrel-up in the

backyard of a residence where children lived and played. Without

deciding whether it would suffice as an independent ground for

departure, we think the district court, in these egregious

circumstances, did not abuse its discretion by concluding that

crowded, low-income, inner-city neighborhoods are likely as a

rule to be more vulnerable to the hazards posed by such reckless

and indiscriminate criminal uses of firearms.

Lastly, the record includes affidavits from law en-

forcement officers describing Hardy's, and his associates',

lengthy affiliation with the Columbia Point Dogs, a Boston street

gang with a conspicuous history of inter-gang violence and

illicit drug distribution in the Lenox Street area. The record

further supports the conclusion that on April 18, 1991, Hardy and

his associates possessed the semi-automatic weapons and sawed-off

shotgun for the purpose of facilitating their gang's ongoing

terrorization of the Lenox Street neighborhood in furtherance of

its drug distribution operations. See, e.g., United States v.

Sweeting, 933 F.3d 962, 966-67 (11th Cir. 1991) (affirming

defendant's ongoing connection to street gang as appropriate

ground for departure); accord United States v. Thomas, 906 F.2d

323, 328 (7th Cir. 1990). Accordingly, we find no manifest abuse

of discretion by the district court. See Koon, 116 S. Ct. at

25

2046-47.

3. Reasonableness of Degree of Departure
3. Reasonableness of Degree of Departure

Finally, Hardy argues that the section 4A1.3 departure

was unreasonable in degree as a matter of law, because the

district court proceeded directly from Level 18, CHC III, to

Level 18, CHC VI, without either considering or explaining why

the sentencing range prescribed at CHC IV or CHC V was inadequate

to reflect the seriousness of his past conduct or the likelihood

of recidivism. See United States v. Tropiano, 50 F.3d 157, 162

(2d Cir. 1995); supra Section II.B.1 (contrasting "unguided" and

"guided" departures). He further argues that section 4A1.3

rarely permits a sentencing court to depart beyond the sentencing

range prescribed by CHC VI based on an "egregious" past criminal

record, and, as such, it constitutes a "discouraged" ground for

departure.

We need not reach either of these arguments, since the

departure decision was not founded on section 4A1.3 alone, cf.,

e.g., Fahm, 13 F.3d at 450 & n.2 (involving departure based

exclusively on 4A1.3 criteria), but on both sections 4A1.3 and

5K2.0. See United States v. Aymelek, 926 F.2d 64, 69-70 (1st

Cir. 1991) (noting that 5K2.0 and 4A1.3 need not be an "'ei-

ther/or' proposition," and that both may be used to support a

single departure decision). The district court relied in part on

some offense-related attributes (e.g., number and dangerousness

of weapons) independently sufficient to justify an unguided

vertical departure under section 5K2.0. In determining such

26

"mixed" departures, no useful purpose is served by insisting that

the sentencing court adhere to all section 4A1.3 formalities,

only to countenance its "unguided" discretion to make an "appro-

priate" non-horizontal departure under section 5K2.0. See

Figaro, 935 F.2d at 8-9 (rejecting "leap-frogging" argument in

"mixed" 4A1.3-5K2.0 case).

Finally, Hardy's protestations notwithstanding, we

cannot conclude that the degree of departure was unreasonable.

See DeMasi, 40 F.3d at 1322. A sentencing court is not required

to "dissect its departure decision, explaining in mathematical or

pseudo-mathematical terms each microscopic choice made." United

States v. Rostoff, 53 F.3d 398, 408 (1st Cir. 1995). Similarly,

the reasonableness vel non of the degree of departure need "not

[] be determined by rigid adherence to a particular mechanistic

formula, but by an evaluation of 'the overall aggregate of known

circumstances.'" Figaro, 935 F.2d at 9 n.2 (citations omitted).

While the departure in this case is indeed substantial (300%), we

have affirmed larger ones. See Rostoff, 53 F.2d at 411 (collect-

ing cases affirming upward departures ranging from 165 to 380

percent). Further, the district court "checked" the degree of

its departure by calculating the hypothetical sentence Hardy

would have received had he been sentenced under the November 1994

guidelines (121-151 months), on the theory that the Commission

had since incorporated many of the offense-related characteris-

tics that formed the bases for the district court's decision to

27

depart in this case.13 Given Hardy's persistent ten-year history

of violent anti-social behavior, as well as the dangerousness of

his conduct on April 18, 1991, in possessing and abandoning a

particularly dangerous firearm in a residential neighborhood, we

cannot say that the degree of the departure imposed by the

district court was not "appropriate" in the circumstances.

III
III

CONCLUSION
CONCLUSION

For the foregoing reasons, the district court judgment

is affirmed.

13Hardy argues that the district court erred in this regard.
The government concedes that the court incorrectly enhanced the
hypothetical offense level two levels by relying on the fact that
one of Hardy's weapons had an obliterated serial number. Thus,
the correct hypothetical total offense level should have been 30,
not 32. The error was harmless, however, since the court also
assigned Hardy a CHC I, Level 32, rather than CHC III, Level 30.
Both prescribe a sentencing range of 121-151 months.

28