United States v. Dethlefs

No. 96-2071

UNITED STATES OF AMERICA,
Appellant,

v.

GARY T. DETHLEFS,
Defendant, Appellee.

No. 96-2072

UNITED STATES OF AMERICA,
Appellant,

v.

DAVID C. WHITE,
Defendant, Appellee.

No. 96-2073

UNITED STATES OF AMERICA,
Appellant,

v.

PETER CLAUDE PICCIANDRA,
Defendant, Appellee.

No. 96-2074

UNITED STATES OF AMERICA,
Appellant,

v.

RICHARD RECORD,
Defendant, Appellee.

No. 96-2075

UNITED STATES OF AMERICA,
Appellant,

v.

THOMAS K. STONE,
Defendant, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Selya, Circuit Judge,

Cyr, Senior Circuit Judge,

and Boudin, Circuit Judge.

Margaret D. McGaughey
, Assistant United States Attorney, with
whom Jay
P.
McCloskey, United States Attorney, and Jonathan
R.
Toof, Assistant United States Attorney, were on brief, for the
United States.
John
A.
Ciraldo, with whom Perkins,
Thompson,
Hinckley
&
Keddy,
P.A., Richard
M.
Egbert, Robert
N.
Launie, Joseph
J.
Balliro,
Bruce B. Hochman
, and
Black, Lambert, Coffin & Rudman
were
on consolidated brief, for the appellees.

August 18, 1997

SELYA,
Circuit Judge
. In this case, the sentencing court

granted a full three-level acceptance of responsibility discount to

each of five defendants (Gary T. Dethlefs, David C. White, Peter C.

Picciandra, Richard Record, and Thomas K. Stone) on the ground that

their guilty pleas were opportune. See USSG S3E1.1(b)(2) (1995).

Then the court essayed general, global downward departures under

USSG S5K2.0 (1995), reasoning that the defendants' pleas

substantially assisted the judicial system and the administration

of justice by obviating the need for trial of a complex,

potentially time-consuming case. Concluding, as we do, that the

record contains no sufficient justification for the downward

departures, we vacate the sentences and remand for resentencing.

I. THE PROCEEDINGS BELOW

To the modest extent that the offense conduct pertains to

the issues on appeal, we extract the facts from the undisputed

portions of the five presentence investigation reports, the plea

colloquies, and the transcripts of the sentencing hearings. See

United
States v. Talladino, 38 F.3d 1255, 1258 (1st Cir. 1994);

United States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991). We also

consider the transcript of the hearing on the motions for downward

departures (which the district court expressly incorporated into

the sentencing record).

In September 1994, a federal grand jury in Maine returned

a superseding indictment which charged the five appellees and four

confederates with conspiring to possess and distribute marijuana

(count 1) and conspiring to commit tax fraud (count 3). See 21

3

U.S.C. SS 841(a)(1), 841(b)(1)(A), 846 (1994); 18 U.S.C. S 371

(1994). Count 2 of the indictment sought the forfeiture of certain

property based on the owners' involvement in the marijuana

operation. See 21 U.S.C. S 853 (1994); see also United States v.

White, 116 F.3d 948 (1st Cir. 1997) (discussing forfeiture aspect).

The court treated an epidemic of motions during the next several

months. Along the way, one defendant, Thomas Baker, entered into

a plea agreement and, for present purposes, dropped out of sight.

Faced with the prospect of trying eight defendants on

drug and tax charges, the district court opted to bifurcate the

anticipated trial and to sever defendants. See March 14, 1995

Order. The court proposed to start the process by trying five

defendants on the drug charges. A planned rehabilitation of the

Portland courthouse complicated the court's scheduling efforts.

After contemplating his options, Judge Carter moved the trial to

Bangor and decreed that Phase I would begin on September 6, 1995.

The record reflects that the judge vigorously promoted

plea negotiations. At pretrial conferences, defense counsel

bemoaned the government's rigidity and suggested that the court

This was to be Phase I, encompassing Record, Dethlefs, Baker,
Irvin Morris and Stuart Smith. Phase II was to involve trying the
Whites (who are siblings), Picciandra, and Stone on the same
counts. The bifurcation order left the tax count for subsequent
resolution. Some two months later, the court entered a new order
vacating the severance of the defendants into two groups but
retaining the principle of bifurcation. See May 12, 1995 Order;
see also United States v. Morris, 914 F. Supp. 637, 639 (D. Me.),
aff'd, 99 F.3d 476 (1st Cir. 1996). While the court referred to a
three-phased trial in subsequent discussions, the record leaves the
impression that only two phases a drug trial and a tax trial
would have been necessary.

4

could restore the balance if it agreed to depart downward from the

defendants' normal sentencing ranges. The judge signalled some

degree of receptivity to this idea, stating at one pretrial

conference:

If all of the defendants got together and
pleaded straight up in this case and made
strong arguments to me for downward departure
in order to recognize the alleviation of an
immense load upon the time, effort and
resources of this Court, I would consider it
very[,] very favorably.

On August 22, 1995, the appellees changed their pleas

pursuant to agreements which stipulated drug quantities but which

contained no other commitments as to sentencing. In anticipation

of their disposition hearings, the appellees moved for downward

departures on the ground that their guilty pleas substantially

assisted the judiciary by conserving resources important to

judicial administration. The district court entertained oral

argument. During the hearing, the court expressed concern about

whether it had the authority to, or should, depart downward "for

conduct of these defendants consisting of their tender of guilty

pleas" which "results in a benefit to the Court in aiding in the

conservation of judicial resources without direct benefit to the

prosecution." Despite its avowed reservations, the court concluded

that "there was a substantial benefit that accrued to the Court

from the fact that it did not have to go to trial in this case";

that the proceedings would have been "very complex" and would have

generated a host of issues on appeal; that, due to bifurcation, the

trial proceedings would have taken four to six months of courtroom

5

time spanning a period of ten to twelve months, followed by a

significant post-trial motion practice; and that the situation

would have been exacerbated by the transfer of the case to Bangor

(which would have required Judge Carter to suspend operations in

Portland, transport his staff to Bangor, and disrupt the wonted

operations of the resident district judge).

Pondering these factors, Judge Carter concluded that the

entry of pleas was a mitigating circumstance which, given the

significant conservation of judicial resources that resulted, was

not adequately considered under the applicable guideline

provisions. He therefore announced that he would grant downward

departures in favor of all five appellees.

The court convened individualized disposition hearings.

We eschew the interstitial details of the various sentencing

computations, save only to note that each appellee received a

three-level reduction for acceptance of responsibility. Judge

Carter calculated the guideline sentencing range (GSR) to be 87-108

months for White, Record, and Stone, see USSG Ch. 5, Pt. A

(Sentencing Table) (adjusted offense level 29; criminal history

category I), 108-135 months for Picciandra, see id. (adjusted

offense level 31; criminal history category I), and 235-293 months

Rebecca White also pleaded guilty in the same time frame, but
her case took a different turn. See United
States v. White,
F.3d (1st Cir. July 28, 1997) [No. 96-2215] (rejecting Rebecca
White's appeal). The two remaining defendants, Morris and Smith,
proceeded to trial on the drug charges and were acquitted. When
last we visited the matter, the government was preparing to try
them for tax fraud. See
United States
v.
Morris, 99 F.3d 476, 478
(1st Cir. 1996).

6

for Dethlefs,
see
id. (adjusted offense level 37; criminal history

category II). The judge then essayed wholesale departures. He

sentenced White, Record, and Stone to 60-month incarcerative terms

and Picciandra to a 72-month incarcerative term (attributing the

larger departure to the perceived need "to maintain parity in terms

of receipt of proper recognition of benefit received by the

Court"). As to Dethlefs, the judge imposed a 175-month

incarcerative term, deeming him "entitled to a very significant

downward departure for his role in bringing about the pleas of five

other defendants, and in bringing to the Court his own plea,

obviating the need for extensive trial proceedings." Displeased by

the court's rulings, the government appealed.

II. ACCEPTANCE OF RESPONSIBILITY

These appeals present two distinct questions. We first

address the easier question: acceptance of responsibility.

Whether a defendant has accepted personal responsibility is a fact-

intensive determination. Absent an error of law, we will not

disturb the sentencing court's judgment in this area unless it is

clearly erroneous. See Talladino, 38 F.3d at 1263; United States

v. Morillo, 8 F.3d 864, 871 (1st Cir. 1993).

The applicable guideline provision is USSG S3E1.1 (1995),

reprinted in the appendix. It authorizes a basic two-level

reduction in a defendant's offense level if the court determines

In addition to prison sentences, the court also imposed terms
of supervised release on all the appellees; levied special
assessments but no fines; and entered forfeiture orders against
White, Record, and Dethlefs.

7

that he has accepted responsibility. See id. S3E1.1(a). A

recently added subsection permits an additional one-level reduction

for certain defendants, provided that the court makes particular

findings. See id. S3E1.1(b). The district court gave all five

appellees the full three-level discount pursuant to section

3E1.1(b)(2).

The government concedes the appellees' entitlement to the

basic two-level reduction and also concedes that they meet the

threshold eligibility criteria for the bonus one-level reduction.

But the government strenuously protests the appellees' entitlement

to that bonus. Section 3E1.1(b)(2) requires a finding that a

defendant "timely notif[ied] authorities," that is, the prosecution

and the court, "of his intention to enter a plea of guilty, thereby

permitting the government to avoid preparing for trial and

permitting the court to allocate its resources efficiently," and

the government says that pleas tendered more than a year after

indictment and only two weeks before trial cannot meet that

benchmark.

To be sure, we have upheld the denial of a one-level

discount under section 3E1.1(b) in situations where defendants have

waited less time to plead, see, e.g., United
States v. Nunez-

Rodriguez, 92 F.3d 14, 17 & n.2 (1st Cir. 1996);
Morillo, 8 F.3d at

872, and we have suggested that defendants who put the prosecutors

through their paces by loosing a heavy barrage of pretrial motions

(as did the appellees) usually cannot expect to receive the bonus

discount, see United
States v. Munoz, 83 F.3d 7, 9 n.1 (1st Cir.

8

1996) (per curiam) (dictum). But generalities are often unhelpful

in specific cases, and the trier's judgment on acceptance of

responsibility issues is entitled to great respect. See USSG

S3E1.1, comment. (n.5); see also United States v. Royer, 895 F.2d

28, 29 (1st Cir. 1990).

Here, the district judge made particularized findings and

articulated a plausible basis for his determination that the

appellees had satisfied the timeliness requirement:

I think the timeliness of notification in
these cases is one that is in some sense
relative . . . . Here it is clear to the
Court that the plea entered at a point in time
[taking into account] the total future
duration of this effort if the pleas were not
entered, such that they did serve the purpose
intended to be served by section 3E1.1(b)(2),
of cutting off a significant portion of
preparation for trial . . . and afford[ing]
the Court an opportunity to employ its
resources to good advantage and in an
efficient manner. I think there was a
timeliness in that respect in the full context
and circumstances of the case . . . .

Although the matter is arguable, we cannot say that this

finding is clearly erroneous. Timeliness is a concept, not a

constant, and it normally must be evaluated in context. This is

especially true in connection with section 3E1.1(b), since that

guideline defines timeliness in functional, rather than strictly

temporal, terms. See USSG S3E1.1, comment. (n.6) ("The timeliness

of the defendant's acceptance of responsibility . . . is context

specific."); see also United
States v. Wetwattana, 94 F.3d 280,

285-86 (7th Cir. 1996). Thus, the timeliness requirement of

section 3E1.1(b)(2) cannot always be measured simply by counting

9

calendar pages.

The trial court, which enjoys a superior coign of

vantage, found that the notification given, though late in absolute

terms, was still early enough in the game to be of substantial

benefit to both the prosecution and the court because it

forestalled the need to make final preparations for a full-scale

drug trial, and, perhaps more importantly, because it eliminated

the arduous task of preparing to try, and then actually trying, the

tax charge vis-a-vis the appellees. On this basis, the district

court's finding that the appellees timely notified the authorities

of their intent to enter guilty pleas is supportable.

III. THE DOWNWARD DEPARTURES

The government assigns error to all five downward

departures. We review departures for abuse of discretion,
see
Koon

v. United
States, 116 S. Ct. 2035, 2046-47 (1996), employing an

analysis which, like all Gaul, is divided into three parts. First,

we determine as a theoretical matter whether the stated ground for

departure is permissible under the guidelines. If the ground is

theoretically appropriate, we next examine whether it finds

adequate factual support in the record.
See
United States
v.
Diaz-

Villafane, 874 F.2d 43, 49 (1st Cir. 1989). If so, we must probe

the degree of the departure in order to verify its reasonableness.

While this prong of the test poses a question of law, see
Koon, 116 S. Ct. at 2047, it nonetheless falls within the abuse of
discretion rubric. That "standard includes review to determine
that the discretion was not guided by erroneous legal conclusions."
Id. at 2048.

10

See United
States v. Quinones, 26 F.3d 213, 219 (1st Cir. 1994).

In this instance, the government posits that the district court's

departure decisions fail each prong of this tripartite test.

A. The Ground for Departure.

The lower court departed under USSG S5K2.0 (1995) (the

text of which is reprinted in the appendix). This proviso, echoing

18 U.S.C. S 3553(b) (1994), permits (but does not require) a

sentencing court to venture outside the GSR if it detects "an

aggravating or mitigating circumstance of a kind, or to a degree,

not adequately taken into consideration by the Sentencing

Commission in formulating the guidelines that should result in a

sentence different from that described." Not any aggravating or

mitigating circumstance will do; the circumstance must "render the

case atypical and take it out of the `heartland' for which the

applicable guideline was designed."
United States
v.
Carrion-Cruz,

92 F.3d 5, 6 (1st Cir. 1996) (per curiam).

Here, the court's stated basis for departing was

substantially the same in respect to all five appellees: the

significant conservation of judicial resources which the entry of

a guilty plea yielded. Consequently, we first must ask whether, in

theory, a guilty plea which conserves judicial resources and

thereby facilitates the administration of justice is a mitigating

feature on which a court may predicate a downward departure (which

we sometimes shall call a "facilitation" departure). Although this

issue has generated disagreement among the courts of appeals, it is

new to us.

11

The touchstone for our analysis is Koon. There, the

Justices made it clear that, in considering whether a valid basis

for departure exists, an inquiring court should take a series of

related steps. The initial step is to identify "[w]hat features of

th[e] case, potentially, take it outside the Guidelines'

`heartland,'" thus making it "special" or "unusual." Koon, 116 S.

Ct. at 2045 (quoting United
States v. Rivera, 994 F.2d 942, 949

(1st Cir. 1993)). After the distinguishing feature has been

identified, the next step is to determine whether the Sentencing

Commission has prohibited departures based on that feature. See

id. If so, the inquiry ends. But if the Commission has not

outlawed departures on that account, the court must ascertain

whether the Commission has considered the identified feature at

all, and if so, whether it has either encouraged or discouraged

departures premised thereon. See id.

Once this segment of the analysis is complete, the

contours of the sentencing court's authority to depart begin to

take shape. If the distinguishing feature is a factor which is not

mentioned in the sentencing guidelines, the court, mindful of the

"structure and theory" of the guidelines, is free to decide whether

that feature logically suffices to remove the case from the

heartland. Id. If, however, the distinguishing feature is a

discouraged factor or an encouraged factor which already has been

taken into account in the framing of the applicable guideline, the

court may depart only if the feature is present to an exceptional

degree or the case is distinctive in some other way. See id.

12

In this case, the sentencing judge identified a feature

a timely guilty plea which conserved judicial resources and

thereby facilitated the administration of justice which he

thought differentiated the case from those within the heartland.

Because the government concedes that the Commission has not

expressly forbidden courts from considering this feature, the

pivotal issue becomes whether the Commission took the identified

feature into account in formulating the guidelines (and if so, to

what end). This issue implicates the reach of two guidelines, USSG

SS3E1.1 and 5K1.1, the full text of which we set out in the

appendix. We discuss them in reverse order.

Section 5K1.1 depends on a defendant's "assistance to the

authorities," a phrase which, in context, means assistance to the

prosecution. The language of that section targets assistance in

reference to interests and duties unique to the prosecution. See

USSG S5K1.1 (referring to "substantial assistance in the

investigation or prosecution of another person");
see
also USSG Ch.

1, Pt. A, intro. comment. 4(g). Indeed, a sentencing judge cannot

depart under section 5K1.1 unless the prosecution chooses to place

that guideline in play. See Wade v. United States, 504 U.S. 181,

185 (1992);
United States
v.
Mariano, 983 F.2d 1150, 1155 (1st Cir.

1993). We think it is extremely unlikely that the Commission, if

it had considered a defendant's assistance to the courts under

section 5K1.1, would have placed the availability of such a

departure in the prosecutor's sole discretion. It is, after all,

self-evident that what is beneficial for the administration of

13

justice and what is of assistance to the prosecution are not

necessarily congruent, and the judge, not the prosecutor, is in the

best position to assess a defendant's assistance to
the
judicial

system. It is equally self-evident that, even if assistance to the

prosecution accrues benefit to the court, or vice versa, the extent

of the conferred benefit can vary appreciably between the two

institutions.

USSG S3E1.1(b) is closer to the mark. It rewards the

efficient allocation of judicial resources which is a normal

concomitant of a guilty plea. Still, consideration under that

guideline is tied exclusively to timeliness. See id. comment.

(n.6). We easily can envision circumstances in which a guilty plea

materially assists a court (even though the assistance may not be

temporally focused) and confers benefits beyond scheduling

efficiency. Then, too, assistance to the court may result from

efforts which include, but which go well beyond, the timely entry

of a plea.

Courts are divided as to whether these guidelines leave

any room for facilitation departures. The court below saw no

barrier. It relied mainly on United States
v.
Garcia, 926 F.2d 125

(2d Cir. 1991). There, three defendants initially pleaded not

guilty to drug-trafficking charges. Two months later, one of them,

Garcia, agreed to furnish information and testify for the

But cf. Charles Erwin Wilson, To the Senate Armed Forces
Committee (1952) (suggesting that "[w]hat is good for the country
is good for General Motors, and what's good for General Motors is
good for the country").

14

prosecution. At that juncture, he pleaded guilty to the conspiracy

count in the indictment. Shortly thereafter, his codefendants

changed their pleas. See
id. at 126. The sentencing court granted

Garcia a two-level reduction for acceptance of responsibility the

added level for timely notification of a guilty plea was not

available, as section 3E1.1(b) had not yet been adopted and then

departed downward on the ground that Garcia's actions had

facilitated the administration of justice. See id. at 126-27.

The Second Circuit upheld the sentence. It reasoned that

the guidelines did not adequately consider the mitigating

circumstances present in Garcia's case: USSG S5K1.1 focuses on

assistance to the government, not the judicial system, and

acceptance of responsibility as that term is used in USSG S3E1.1

differs qualitatively from activities facilitating the

administration of justice. See id. at 127-28. The court then

upheld the departure on the basis that:

[T]he additional assistance rendered the
[district] court in the disposition of the
charges against the other defendants justified
the departure from the Sentencing Guidelines.
As [the district judge] found, Garcia's
conduct "broke the log jam" in a multi-
defendant case. His relatively early guilty
plea and willingness to testify against co-
defendants induced [them] to enter guilty
pleas. This conserved judicial resources by
facilitating the disposition of the case
without a trial.

Id. at 128.

Garcia is to some extent a waif in the wilderness. Other

appellate courts, fortified in their resolve by the enactment of

USSG S3E1.1(b), see USSG App. C, amend. 459 (effective Nov. 1,

15

1992), have declined to follow
Garcia, concluding that, because the

sentencing guidelines adequately consider a defendant's assistance

to the judicial system under sections 3E1.1 and 5K1.1, facilitation

is not a permissible basis for a downward departure. See, e.g.,

United
States v. Dorsey, 61 F.3d 260, 262-63 (4th Cir. 1995)

(upholding a district court's refusal to depart downward for

professed assistance to the judicial system),
cert.
denied, 116 S.

Ct. 732 (1996); United
States v. Haversat, 22 F.3d 790, 794-95 &

n.5 (8th Cir. 1994) (reversing the sentencing court and holding

that neither the defendant's early plea nor his help in settling a

related civil suit warranted a downward departure under USSG

S5K2.0);
United States
v.
Shrewsberry, 980 F.2d 1296, 1297-98 (9th

Cir. 1992) (per curiam) (rejecting the defendant's plaint that she

should receive a downward departure for her aid in cracking a

case). Indeed, the Fourth Circuit went so far as to say that "[w]e

can envision no circumstance in which `assistance to the judicial

system' would not also be of assistance to the Government."

Dorsey, 61 F.3d at 262.

The problem with all these cases, Garcia included, is

that they were decided without the benefit of Koon. We read Koon

to mean that courts, as a general rule, should not categorically

reject any factors (save only forbidden factors and factors which

lack relevance) as possible bases for departures.
See
Koon, 116 S.

Ct. at 2051 (warning that too ready resort to categorical

interpretations "would nullify the Commission's treatment of

particular departure factors and its determination that, with few

16

exceptions, departure factors should not be ruled out on a

categorical basis"); see also USSG Ch. 1, Pt. A, intro. comment.

4(b) (explaining that, apart from forbidden factors, the Sentencing

Commission "does not intend to limit the kinds of factors, whether

or not mentioned anywhere else in the guidelines, that could

constitute grounds for departure in an unusual case"). Post Koon,

it would be folly to conclude that a timely guilty plea which

conserves judicial resources and thereby facilitates the

administration of justice must not be considered under any

circumstances in the departure calculus.

On this basis, then, we hold that a categorical bar (such

as the government urges here) would contradict Koon and undermine

the theoretical foundations on which the sentencing guidelines

rest. See United
States v. Olbres, 99 F.3d 28, 34-35 (1st Cir.

1996). Viewed at an appropriate level of generality,
cf.
Koon, 116

S. Ct. at 2047, the mere existence of sections 5K1.1 and 3E1.1(b)

does not foreclose the theoretical possibility of predicating a

downward departure on such conduct. Cf.,
e.g.,
Olbres, 99 F.3d at

36 (reaching a substantially similar conclusion as to business

failure and attendant loss of jobs by innocent employees stemming

from a defendant's proposed incarceration);
Rivera, 994 F.2d at 953

(reaching a substantially similar conclusion as to a defendant's

family circumstances); United
States v. Sklar, 920 F.2d 107, 116

(1st Cir. 1990) (reaching a substantially similar conclusion as to

a defendant's rehabilitation).

B. The Factual Predicate.

17

To this point, we have established that, consistent with

the method of the sentencing guidelines as elucidated in Koon, a

defendant's timeous agreement to enter a plea and his actions

ancillary thereto may have ameliorative consequences so far beyond

ordinary expectations as to warrant a downward departure for

conserving judicial resources and thereby facilitating the

administration of justice. We next inquire whether the court below

had a sufficient factual predicate for its determination that the

departure-justifying feature exists in this situation to a degree

which suffices to distinguish the case from the mine-run. See

Koon, 116 S. Ct. at 2045.

Departures which depend on the presence of a

distinguishing characteristic to an exceptional degree are

sometimes called quantitative departures (as opposed to qualitative

departures, which depend upon the presence, simpliciter, of a

distinguishing characteristic). See Bruce M. Selya & Matthew R.

Kipp,
An Examination of Emerging Departure Jurisprudence Under the

Federal
Sentencing
Guidelines, 67 Notre Dame L. Rev. 1, 22-24

(1991). Although descriptions of the phenomenon vary, their

essence remains the same: when a sentencing court mulls a ground

already considered by the Commission, there must be something very

special about how that ground manifests itself in the particular

case if it is to bear the weight of a departure. See
Koon, 116 S.

Ct. at 2045; Rivera, 994 F.2d at 949.

Judge Carter understood the nature of this inquiry. He

reasoned that the appellees' guilty pleas negated a potentially

18

cumbersome trial and thus accrued a substantial benefit to the

court. He premised this conclusion primarily on four subsidiary

determinations: (1) the appellees' courage in changing their pleas

without first having secured any commitments as to sentencing, (2)

the length of the anticipated trial, (3) the case's complexity, and

(4) the need to relocate the proceedings to Bangor. In the judge's

view, these circumstances made the case sufficiently atypical to

warrant departures across the board.

In our estimation, the collateral circumstances relied on

by the sentencing court, whether viewed singly or in combination,

do not justify the wholesale departures that ensued.

We start with the most obvious point. To the extent that

the district court based its departure decision on the fact that

the appellees, though facing potentially severe sentences, entered

pleas without sentencing agreements, it erred. Notwithstanding

that most categorical interpretations are disfavored under the
Koon

Court's regime, some boundaries are essential if the guidelines are

not to be emptied of all meaning. Considering a straight plea as

a factor supporting departure impinges upon one of these

boundaries. Permitting courts to pass freely across this line

would intrude upon the Commission's prerogatives and undercut the

sentencing guidelines. After all, the Commission specifically

recognized the high percentage of guilty pleas in federal criminal

The court colorfully described this scenario as one in which
the appellees had agreed "to plead with their hearts in their
throats . . . knowing that the sky is the limit and the judge
determines the height."

19

cases,
see USSG Ch. 1, Pt. A, intro. comment. 4(c) (observing that

"[n]early ninety percent of all federal criminal cases involve

guilty pleas"), and pleading straight up is commonplace.

No deviation from this principle is warranted here. In

point of fact, these appellees did not tender bare pleas. They

received a significant concession in exchange for eschewing trial:

the government stipulated to drug quantities (a critical integer in

the formula for constructing a defendant's GSR). Even more

importantly, the district court indicated in advance that the

appellees could anticipate receiving solicitous treatment in

sentencing if they changed their pleas.

The remainder of the lower court's analysis is also

flawed. The court placed great emphasis on the fact that trial

would have taken four to six months, spread over a period spanning

ten months to a year. In and of itself, this estimate is puzzling.

The court had abandoned the idea of splitting the defendants into

groups for purposes of trial, and, in its procedural order setting

the conditions for the upcoming trial, entered on May 12, 1995, the

court had allotted 12 days for trial on the drug-related counts.

By coincidence, the drug-count trial of the two defendants who did

not plead took exactly 12 days. See United States v. Morris, 914

This appeal does not raise the question of whether the
district court's actions impinged on Fed. R. Crim. P. 11(e)(1)
(ordaining that the sentencing court "shall not participate" in
plea discussions). Consequently, we express no opinion either on
that question or on the somewhat related question whether, with or
without regard to Rule 11(e)(1), the appellants might have a basis
for seeking to withdraw their guilty pleas.

20

F. Supp. 637, 639 (D. Me.) (recounting travel of the case),
aff'd,

99 F.3d 476 (1st Cir. 1996). It is hard to believe that a separate

tax-fraud trial, if one proved necessary, would have consumed more

than this amount of time.

Judicial time is a valuable commodity, and to save a

half-year or more of trial time, along with jury costs and other

associated expenses, might be a significant savings. But multiple-

defendant/multiple-count criminal cases of the duration involved

here (five to six weeks seems a generous estimate) are not

uncommon. Even in the case of a trial projected to take much

longer, we think it would require a very detailed and specific

showing to give full weight to such a projection especially in

view of the perverse incentive created by encouraging defendants to

threaten to prolong proceedings as a wedge for obtaining downward

departures.

In the same vein, it will be exceedingly rare that the

complicated nature of an anticipated trial will warrant a downward

departure. While we can conjure up some byzantine case in which

complexity might be a proper factor in assessing whether the

defendant's facilitative conduct benefitted the judiciary to a

degree not contemplated by the applicable guideline range, cf.

Selya & Kipp, supra, at 31-37 (canvassing cases examining

collateral circumstances to gauge a factor's quantitative weight),

there is nothing so unusual about the complexities of a garden

21

variety drug-and-tax case that warrants departing.

The need to manage large, multi-defendant, multi-issue

cases arises in federal district courts with the approximate

frequency of acne in adolescence. This case does not appear to

present problems so out of the ordinary as to pluck it from the

mainstream. The case, in its most cumbersome form, involved nine

defendants and three counts. Trying such a case is no small chore,

but, given the evolution of federal criminal cases in the modern

era, it is not an atypical configuration.
See,
e.g.,
United States

v. Gallegos, 108 F.3d 1272, 1275 (10th Cir. 1997) (22 defendants,

23-count indictment); United States v. McKinney, 98 F.3d 974, 976

(7th Cir. 1996) (10 defendants, 12-count indictment),
cert.
denied,

117 S. Ct. 1119 (1997); United
States v. Anderson, 89 F.3d 1306,

1308 (6th Cir. 1996) (29 defendants, 56-count indictment), cert.

denied, 117 S. Ct. 786 (1997).

Before leaving the imbricated topics of duration and

complexity, we offer two additional insights. First, we flatly

reject the notion that the prospect of burdensome post-trial

motions or difficult appellate issues, no matter how tricky or

time-consuming, can justify a downward departure. Second, we think

it is important to note that the district court took what amounted

Withal, we reject the government's claim that the prospective
length and complexity of the proceedings should be disregarded
because these attributes were aggravated by the court's bifurcation
order. Such trial management decisions are peculiarly within a
nisi prius court's discretion, see, e.g., United
States v.
Saccoccia, 58 F.3d 754, 770 (1st Cir. 1995), cert. denied, 116 S.
Ct. 1322 (1996); United
States v. Taylor, 54 F.3d 967, 974 (1st
Cir. 1995), and that discretion was not abused here.

22

to an abstract view of the gross benefit that would accrue as a

result of the guilty pleas. Since not all the defendants pleaded,

the court still had to try the drug case and the tax case, albeit

with fewer parties, and to resolve much the same tangle of legal

issues. Consequently, the net savings to the justice system were

considerably more modest than the court projected.

The final idiosyncracy identified by the court below

the shortage of suitable courtroom space is a somewhat different

matter. Although we can find no precedent on the point, we assume

arguendo that the hardship of proceeding to trial during a major

courthouse rehabilitation project which puts adequate courtrooms in

short supply might be a relevant collateral circumstance.

Nevertheless, the record suffers from a dearth of information. For

example, there are insufficient facts concerning both the lack of

alternative facilities in Portland and the availability of

courtrooms in Bangor. While we might perhaps take judicial notice

of the existence of other courthouses, the record furnishes no

basis for us to determine whether those alternatives really were

inadequate. This scarcity of record support weakens the influence

As we read the record, the lower court did not place much
weight on this factor. It found a substantial benefit to the
judicial system apart from the issue of limited trial space and
stated only that the removal to Bangor compounded its
considerations.

To be sure, the court stated that the only Portland location
at which it could try criminal cases was in the Cumberland County
Courthouse and that "[t]he courthouse facility there available was
in the new, modern wing where the courtrooms are relatively small,
and none of those courtrooms that were available to this court as
a result of that agreement were adequate to try 8 defendants with

23

of the courthouse renovation on the departure determination. In

all events, what we know about the courtroom problem in this case

indicates fairly conclusively that this distinguishing feature does

not warrant departure.

It thus appears that the district court's reasons, taken

one by one, do not justify the dispensing of wholesale departures.

And while factors insufficient in themselves sometimes may suffice,

in combination, to wrest a case from the heartland and thus clear

the way for a departure, see, e.g., United
States v. Bowser, 941

F.2d 1019, 1024-25 (10th Cir. 1991), this is not such an instance.

The court's articulated reasons, even when taken in cumulation,

lack the force which is necessary to transport the case

sufficiently beyond the realm of the ordinary.

To summarize, we hold that in an appropriate case a

defendant's timely entry of a guilty plea might facilitate the

administration of justice in such an unusual way, or to so

inordinate a degree, that it substantially exceeds the reasonable

expectations the sentencing commissioners likely harbored when

formulating the guidelines. Garcia is such a case (or so the

Second Circuit thought). In our judgment, however, merited

downward departures of this stripe are bound to be rare. That is

so because some facilitation flows from virtually every timely

upwards of twenty lawyers participating in trial." But the court
did not explain why the bankruptcy court facilities (which were
used during the renovation to conduct civil jury trials) were not
utilized, or why the original severance order could not have been
reinstated (thus paring the size of the queue), or whether the
availability of other state facilities outside of Portland but
closer than Bangor was explored.

24

guilty plea and the Sentencing Commission knew as much. Such a

readily foreseeable level of facilitation, while laudable, stops

well shy of what is necessary to take a case out of the heartland.

See,
e.g.,
United States
v.
Gonzalez, 970 F.2d 1095, 1103 (2d Cir.

1992) (distinguishing Garcia on the facts); United
States v.

Lockyer, 966 F.2d 1390, 1392 (11th Cir. 1992) (per curiam)

(similar);
United States
v.
Armstrong, 842 F. Supp. 92, 96 (S.D.N.Y

1994); United States v. Collazo, 798 F. Supp. 513, 518 (N.D. Ind.

1992). It is only the occasional instance, where circumstances

permit and the accused takes full advantage of them, that will

yield facilitation so dramatic as to cross the line. This is as it

should be: "If the guidelines are to provide a coherent system of

criminal sentencing, the trial court's right to depart, up or down,

must be restricted to those few instances where some substantial

atypicality can be demonstrated." United States v. Williams, 891

F.2d 962, 967 (1st Cir. 1989) (emphasis supplied).

On the record as it now stands, this case falls within

the general rule, not within the long-odds exception to it. Multi-

defendant criminal cases are mothers' milk in the federal courts.

So, too, are guilty pleas. Thus, multiple defendants participating

in the entry of guilty pleas, without quite a bit more, cannot

constitute the meaningful atypicality that is required to warrant

a departure. Here, there is not enough "more." Hence, the

departures were improvidently granted.

IV. CONCLUSION

We need go no further. The award of the third-level

25

acceptance of responsibility adjustment was not clearly erroneous.

As for the downward departures, we hold that, in theory, the court

had authority to depart for conduct (i.e., the timely guilty pleas)

which conserved judicial resources and thereby facilitated the

administration of justice. Here, however, the case for departure,

overall, falls so far short of Garcia that the court's global

departures cannot survive. We therefore vacate the appellees'

sentences and remand for further proceedings consistent with this

opinion.

It is so ordered.

In this case, the record strongly suggests that not all the
appellees contributed in the same degree to bringing about the
global pleas. Moreover, in fixing the extent of the individual
departures, the judge commented on the especially significant
contributions that one or two defendants had made in breaking the
log jam. The court remains free, on remand, to pursue the question
of whether this is a distinguishing feature warranting a downward
departure in a particular instance. See Garcia, 926 F.2d at 128.

26

APPENDIX

S3E1.1. Acceptance of Responsibility

(a) If the defendant clearly demonstrates
acceptance of responsibility for his offense,
decrease the offense level by 2 levels.

(b) If the defendant qualifies for a decrease
under subsection (a), the offense level
determined prior to the operation of
subsection (a) is level
16 or greater, and the
defendant has assisted authorities in the
investigation or prosecution of his own
misconduct by taking one or more of the
following steps:

(1) timely providing complete information to
the government concerning his own involvement
in the offense; or

(2) timely notifying authorities of his
intention to enter a plea of guilty, thereby
permitting the government to avoid preparing
for trial and permitting the court to allocate
its resources efficiently,

decrease the offense level by 1 additional level.

USSG S3E1.1 (1995).

S5K1.1. Substantial Assistance to Authorities
(Policy Statement)

Upon motion of the government stating that the defendant has
provided substantial assistance in the investigation or prosecution
of another person who has committed an offense, the court may
depart from the guidelines.

(a) The appropriate reduction shall be determined by the
court for reasons stated that may include, but are not
limited to, consideration of the following:

(1) the court's evaluation of the
significance and usefulness of the
defendant's assistance, taking into
consideration the government's evaluation
of the assistance rendered;

(2) the truthfulness, completeness, and
reliability of any information or testimony

27

provided by the defendant;

(3) the nature and extent of the
defendant's assistance;

(4) any injury suffered, or any danger or
risk of injury to the defendant or his
family resulting from his assistance;

(5) the timeliness of the defendant's
assistance.

USSG S5K1.1 (1995).

S5K2.0. Grounds for Departure (Policy Statement)

Under 18 U.S.C. S 3553(b) the sentencing court may impose
a sentence outside the range established by the
applicable guideline, if the court finds "that there
exists an aggravating or mitigating circumstance of a
kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating
the guidelines that should result in a sentence different
from that described." 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. Nonetheless, this subpart
seeks to aid the court by identifying some of the factors
that the Commission has not been able to take into
account fully in formulating the guidelines. 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. Similarly,
the court may depart from the guidelines, even though the
reason for departure is taken into consideration in the
guidelines (
e.g., as a specific offense characteristic or
other adjustment), if the court determines that, in light
of unusual circumstances, the guideline level attached to
that factor is inadequate.

Where, for example, the applicable offense guideline and
adjustments do take into consideration a factor listed in
this subpart, departure from the applicable guideline
range is warranted only if the factor is present to a
degree substantially in excess of that which ordinarily
is involved in the offense. Thus, disruption of a
governmental function, S5K2.7, would have to be quite

28

serious to warrant departure from the guidelines when the
applicable offense guideline is bribery or obstruction of
justice. When the theft offense guideline is applicable,
however, and the theft caused disruption of a
governmental function, departure from the applicable
guideline range more readily would be appropriate.
Similarly, physical injury would not warrant departure
from the guidelines when the robbery offense guideline is
applicable because the robbery guideline includes a
specific adjustment based on the extent of any injury.
However, because the robbery guideline does not deal with
injury to more than one victim, departure would be
warranted if several persons were injured.

Also, a factor may be listed as a specific offense
characteristic under one guideline but not under all
guidelines. Simply because it was not listed does not
mean that there may not be circumstances when that factor
would be relevant to sentencing. For example, the use of
a weapon has been listed as a specific offense
characteristic under many guidelines, but not under
immigration violations. Therefore, if a weapon is a
relevant factor to sentencing for an immigration
violation, the court may depart for this reason.

An offender characteristic or other circumstance that is
not ordinarily relevant in determining whether a sentence
should be outside the applicable guideline range may be
relevant to this determination if such characteristic or
circumstance is present to an unusual degree and
distinguishes the case from the "heartland" cases covered
by the guidelines in a way that is important to the
statutory purposes of sentencing.

USSG S5K2.0 (1995).

29