United States v. Snyder

United States Court of Appeals
For the First Circuit

Nos. 00-1043, 00-1051

UNITED STATES OF AMERICA,

Appellee,

v.

ERIC GRAY SNYDER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Boudin, Circuit Judge,

Cyr, Senior Circuit Judge,

and Lynch, Circuit Judge.

Victoria L. Nadel for appellant.
James F. Lang, Assistant United States Attorney, with whom Donald
K. Stern, United States Attorney, was on brief, for appellee.

December 21, 2000
 LYNCH, Circuit Judge. In this unusual case, a trial
judge sua sponte recused himself from sentencing because he
found himself "unwilling, as a matter of conscience" to apply
the U.S. Sentencing Guidelines as interpreted by this court.
The defendant, who might have otherwise benefitted from the
judge's lenient views, claims that the judge had a duty to sit,
that his decision to recuse himself was therefore in error, and
that the case should be remanded back to the judge for
resentencing. In the alternative, the defendant objects to the
sentence imposed upon him by a different judge to whom his case
was reassigned, as well as that judge's decision to deny his
motion for a new trial. The primary question in the case pits
a judge's duty to sit, if there is no reason to recuse, against
his duty not to sit, if a reasonable person could doubt his
impartiality. We uphold the trial judge's decision to recuse
himself and reject the defendant's other attacks.
I. BACKGROUND

Eric Snyder was convicted after a jury trial of being a felon

in possession of a firearm and ammunition in violation of 18 U.S.C. §

922(g)(1). At sentencing, the trial judge, Judge Harrington, found the

defendant to be an armed career criminal under 18 U.S.C. § 924(e) and

calculated the applicable guideline range at 235 to 293 months.

However, after expressing concern during the sentencing hearing that

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the range was too harsh, Judge Harrington chose to depart downward,

explaining his decision in a published memorandum. See United States

v. Snyder, 954 F. Supp. 19, 22 (D. Mass. 1997) (hereinafter " Snyder

I"). In his view, a downward departure was justified because had

Snyder been prosecuted and convicted under state law, he would have

been sentenced to a far shorter prison term than that prescribed by the

federal Sentencing Guidelines. Such sentencing disparity, Judge

Harrington argued, effectively grants federal prosecutors "unbridled

power" to single out "local" offenders for disparately long federal

sentences. Accordingly, Judge Harrington departed downward in order to

bring Snyder's sentence closer to the sentence he would have received

in state court, sentencing Snyder to 180 months, the statutory minimum.

Id. On appeal, this court vacated the sentence, holding that a

disparity between federal and state sentences for the same offense is

not a legitimate ground for departure. We remanded the case for

resentencing. See United States v. Snyder, 136 F.3d 65, 70 (1st Cir.

1998) ("Snyder II").

Following the remand, Judge Harrington initially scheduled

resentencing for April 27, 1998. Over the next eight months, though,

he granted Snyder a series of continuances while Snyder awaited a

decision from the Boston Municipal Court regarding whether one of his

prior convictions was unconstitutional. On December 9, 1998, after

successfully vacating the prior conviction, Snyder moved for a new

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trial in this case, arguing that with the conviction eliminated he

could no longer be considered to have been a "felon" for purposes of §

922(g)(1) at the time he was caught in possession of a firearm.

On December 23, 1998, Judge Harrington held a hearing in

which he considered both Snyder's resentencing and his motion for a new

trial. During the hearing, the judge made clear that he harbored "deep

problems of conscience over this case" and that he was frustrated by

the government's unwillingness to concede that Snyder did not deserve

the sentence required by the Guidelines. The hearing produced no

resolution as Judge Harrington again granted a continuance, this time

to allow Snyder to submit his own version of events for inclusion in

the presentence report.

On September 22, 1999, a year and a half after our remand in

Snyder II, Judge Harrington abruptly recused himself from the case sua

sponte. The written order stated that he was "unwilling, as a matter

of conscience, to impose the draconian sentence required by the United

States Court of Appeals for the First Circuit," citing Snyder I as

setting forth the reasons underlying his conscientious objection.

Snyder moved for reconsideration of the recusal order, which motion

Judge Harrington denied by margin endorsement. Snyder then appealed

the denial.

While the appeal was pending, Snyder's case was reassigned

to Chief Judge Young, who proceeded to hold a sentencing hearing on

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October 14, 1999. At the hearing, Judge Young denied a motion by

Snyder for further continuance pending this court's decision on Judge

Harrington's recusal. He then heard Snyder argue various grounds for

a downward departure. Rejecting all of those grounds, Judge Young

sentenced Snyder to 264 months, a sentence at the midpoint of the

applicable guideline range. On March 6, 2000, Judge Young denied

Snyder's motion for a new trial. Snyder timely appealed his sentence

and the denial of the new trial motion. We now consider this appeal

and the appeal of Judge Harrington's recusal order.

II. DISCUSSION

A. Recusal

Did Judge Harrington commit reversible error in recusing

himself from the case? Snyder claims that Judge Harrington lacked

any valid authority for recusing himself, and that in the absence of

such authority the judge had a duty to continue presiding. As for

what prejudice Snyder suffered from the recusal, he claims that he

was deprived of the opportunity to be sentenced by a judge intimately

familiar with the facts of his case. Had the sentencing judge fully

grasped these supposedly peculiar facts, Snyder believes, he would

have granted Snyder a downward departure or, at the very least, would

have sentenced Snyder at the low end, rather than the midpoint, of

the applicable guideline range. For its part, the government argues

that Judge Harrington's decision to recuse himself was entirely

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appropriate under the circumstances: the judge had made many

statements of record expressing hostility toward the government's

case, and for some 18 months he had refused to sentence Snyder as he

was required to do on remand. Such conduct, the government argues,

gave rise to an objective appearance of partiality, warranting

recusal.

Recusal of federal judges is governed by 28 U.S.C. § 455,

subsection (a) of which is at issue here. That subsection provides

that "[a]ny justice, judge, or magistrate of the United States shall

disqualify himself in any proceeding in which his impartiality might

reasonably be questioned." The reach of the subsection is broad. It

forbids partiality whether grounded in an "interest or relationship"

or a "bias or prejudice"; and it forbids not only the reality of

partiality but its objective appearance as well. Liteky v. United

States, 510 U.S. 540, 548 (1994). As the Supreme Court has pithily

characterized the subsection: "Quite simply and quite universally,

recusal [i]s required whenever 'impartiality might reasonably be

questioned.'" Id. (quoting 28 U.S.C. § 455(a)).

Nevertheless, judges are not to recuse themselves lightly

under § 455(a). See H.R. Rep. No. 93-1453, at 5 (1974), reprinted in

1974 U.S.C.C.A.N. 6351, 6355 ("[Section 455(a)] should not be used by

judges to avoid sitting on difficult or controversial cases."). As

Snyder contends, an erroneous recusal may be prejudicial in some

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circumstances. See United States v. Arache, 946 F.2d 129, 140 (1st

Cir. 1991) (finding that "there appears to be some force" to argument

that recusal may prejudice defendant where recusing judge has become

familiar enough with facts of case to question reliability of key

testimony). In any event, the unnecessary transfer of a case from

one judge to another is inherently inefficient and delays the

administration of justice. See Camacho v. Autoridad de Telefonos de

Puerto Rico, 868 F.2d 482, 491 (1st Cir. 1989) (noting that the

judicial system would be "paralyzed" were standards for recusal too

low). For these reasons, "[a] trial judge must hear cases unless

[there is] some reasonable factual basis to doubt the impartiality or

fairness of the tribunal." Blizard v. Frechette, 601 F.2d 1217, 1221

(1st Cir. 1979). Thus, under § 455(a) a judge has a duty to recuse

himself if his impartiality can reasonably be questioned; but

otherwise, he has a duty to sit.1

Most appeals arising under § 455(a) are brought after the

trial judge has refused to recuse himself on motion of a party. See,

e.g., In re United States, 158 F.3d 26, 27 (1st Cir. 1998); Blizard,

1 Section 455(a) modified, but did not eliminate, the duty to
sit doctrine. See In re Martinez-Catala, 129 F.3d 213, 221 (1st Cir.
1997). The duty to sit doctrine originally not only required a judge
to sit in the absence of any reason to recuse, but also required a
judge to resolve close cases in favor of sitting rather than recusing.
Section 455(a) eliminated the latter element of the doctrine, Blizard,
601 F.2d at 1220, but not the former, id. at 1221. "In this sense,
i.e., that judges hear cases unless there is some reason not to, the
'duty to sit' remains." Id.

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601 F.2d at 1219.2 In such cases we have applied an abuse of

discretion standard. As we stated in In re United States:

[A] decision whether to disqualify [is] in the first
instance committed to the district judge. And, since in
many cases reasonable deciders may disagree, the district
judge is allowed a range of discretion. The appellate
court, therefore, must ask itself not whether it would
have decided as did the trial court, but whether that
decision cannot be defended as a rational conclusion
supported by [a] reasonable reading of the record.

158 F.3d at 30 (citations and internal quotation marks omitted).

Furthermore, we have recognized that the duty to recuse and the duty

to sit do not exert equal pull; in close cases, "doubts ordinarily

ought to be resolved in favor of recusal." Id. No one suggests that

different principles of review apply here, where a judge has recused

himself sua sponte.3 Hence, our review in this case, as in our prior

cases, is both deferential and weighted: we inquire whether, in light

of the policy favoring recusal in close cases, Judge Harrington

abused his discretion in finding that he had a duty to recuse

himself.

2 Rarely, we have found that a judge erred by recusing himself,
rather than by refusing to do so. El Fenix de Puerto Rico v. The M/Y
Johanny, 36 F.3d 136, 140 (1st Cir. 1994); cf. United States v. Arache,
946 F.2d at 140 (considering defendant's (waived) claim that judge
should not have recused himself but finding no plain error).
3 Perhaps the most famed example of spontaneous recusal is that
of Justice Frankfurter, a self-described victim of bus background
music, in a case challenging the broadcasting of such music on city
buses. Public Utils. Comm'n v. Pollak, 343 U.S. 451, 466-67 (1952)
(Frankfurter, J., recusal opinion).

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 We find no such abuse of discretion. Given Judge

Harrington's persistent and vociferous objections to Snyder's federal

prosecution, and, more importantly, given his outright unwillingness

to sentence Snyder in accordance with this court's ruling in Snyder

II, Judge Harrington's decision to recuse himself from the case was

clearly not an abuse of discretion. Judge Harrington did not merely

express opinion; he ultimately concluded he could not bring himself

to do what the law required. The record amply evinces that his

conclusion was genuine. Further, to the extent there can be any

doubt, such doubt is resolved in favor of recusal.

Judge Harrington first voiced objections to Snyder's

prosecution in the sentencing proceedings antedating Snyder II, in

which he repeatedly insisted that Snyder's federal prosecution worked

a "gross violation of the principles of justice." In his memorandum

in Snyder I, Judge Harrington elaborated on this theme, holding that

the sentence sought by the government

constitutes a grossly disparate sentence pre-determined by
the prosecutor in the exercise of his absolute discretion
and, thus, affronts this Court's sense of fundamental
fairness . . . . For where unbridled power, unchecked by
judicial scrutiny, can by fiat determine that a certain
person from among many similarly situated shall serve such
a disparate sentence for the same offense, then the
balance of governmental powers has become distorted and
the liberty of every individual is held hostage to the
potential tyranny of the Executive Branch.

Snyder I, 954 F. Supp. at 22; see also Snyder II, 136 F.3d at 66-67

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(detailing Judge Harrington's remarks in sentencing proceedings

antedating Snyder II).

On remand following Snyder II, at the aborted sentencing

hearing of December 23, 1998, Judge Harrington's protests grew

increasingly adamant. He again and again chastised the government

for requesting a 262-month sentence:

How does . . . the government, in an insignificant
incident, . . . ask me to sentence this man to 21 years?
I've been involved in a lot of murder cases and I never
had a client who ever did more actual jail time than 15
years. And I'll tell you, it shocks me that the United
States Government would look at this man for what he did
in this case and ask for 21 years. I think it's unjust
and it's extremely shocking, and I just can't believe that
this government, of which we're all a part, can do it.
It's a manifestation of inflexibility on their part.

. . . .

I don't endorse what Mr. Snyder did, but I've been
involved in the criminal law for 38 years on both sides.
To my judgment, this is the most outrageous recommendation
I have ever seen in the history of Massachusetts
jurisprudence . . . . And every time I think of Mr.
Snyder having to serve 21 years, I almost get physically
sick.

As the hearing progressed, Judge Harrington returned to

the objections he lodged in Snyder I concerning the judiciary's

inability to check selective prosecution and sentencing, even though

this court had instructed (as Judge Harrington apparently recognized)

that those objections were not legitimate grounds for a downward

departure:

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 This case is an example, although the Court of Appeals did
not accept it, of the government using a Federal Court to
transform a year-and-a-half sentence to a 21-year term of
imprisonment.

. . . .

And federal judges feel put upon because they feel that
that type of sentence is unjust.

Toward the end of the hearing, Judge Harrington openly expressed

frustration with the prosecution's refusal to come around to the

court's point of view, at one point pressing the government to

concede that Snyder was entitled to some sort of downward departure.

Specifically, after describing the court's efforts to cooperate with

the U.S. Attorney's office in other matters, Judge Harrington

continued:

And yet now, when this Court -- when the U.S. Attorney
knows that this Court has deep problems of conscience over
this case, they will not reciprocate one inch, one inch.

Finally, in the recusal order issued after the hearing, Judge

Harrington expressly declared that he was flatly unwilling to

sentence Snyder in accordance with this court's remand order,

reasserting, once again, the objections articulated in Snyder I.

A judge's views on matters of law and policy ordinarily

are not legitimate grounds for recusal, even if such views are

strongly held. See Richard E. Flamm, Judicial Disqualification:

Recusal and Disqualification of Judges § 10.2 (1996) (collecting

cases). After all, judges commonly come to a case with personal

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views on the underlying subject matter; indeed, many judges are known

to dislike aspects of the Sentencing Guidelines. Far from

necessarily warranting recusal, typically such views merely mark an

active mind. See Laird v. Tatum, 409 U.S. 824, 835 (1972) ("Proof

that a [judge's] mind . . . was a complete tabula rasa . . . would be

evidence of lack of qualification, not lack of bias."); John

Leubsdorf, Theories of Judging and Judge Disqualification, 62 N.Y.U.

L. Rev. 237, 250-51 (1987) (discussing Judge Jerome Frank's statement

that "[i]f . . . bias and partiality be defined to mean the total

absence of preconceptions in the mind of the judge, then no one has

ever had a fair trial and no one ever will").

Moreover, a judge ordinarily may not be disqualified

merely for reprehending a party's legal position, or for

interrogating counsel in an angry or confrontational tone. See In re

United States, 158 F.3d at 34; Flamm, supra, § 16.5. Emotions can

run high in the courtroom, and occasional flares of temper are to be

expected in the heat of argument.

But when a judge proves unable to put aside his personal

convictions in order to carry out the law, when his hostility toward

a litigant's position has become so pervasive that he cannot

reasonably hope to provide a fair hearing, then recusal is of course

warranted. See Flamm, supra, § 10.4 (recusal appropriate where

judge's mind has become "irrevocably closed" as to the issues in a

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specific case) (collecting cases); In re United States, 158 F.3d at

34 (recusal appropriate where judge appears to harbor "an aversion,

hostility or disposition of a kind that a fair-minded person could

not set aside when judging the dispute") (quoting Liteky, 510 U.S. at

557-58 (Kennedy, J., concurring in the judgment)). These conditions

clearly enough were met here. Cf. City of Columbus v. Hayes, 587

N.E.2d 939, 942 (Oh. Ct. App. 1990) (remanding to another judge for

resentencing where original sentencing judge, after being reversed,

declared that he would impose the same sentence as before, even if he

were reversed again "ten times"). At the least, we find that Judge

Harrington did not abuse his discretion in deciding that, given his

unyielding antipathy toward the government's case, he had no choice

but to recuse himself.

That said, there is another point. While one can

appreciate the struggle of a judge to bring himself to apply a law he

feels unjust, that this process took over a year and a half in this

case is cause for concern. The defendant and the government each had

interests in ensuring that facts relevant to sentencing remained

fresh in the mind of the court, counsel, and any potential witnesses.

The public also legitimately expects that criminal cases will be

expeditiously resolved. Thus, while we hold that Judge Harrington's

decision to recuse himself was not in error, we note that a prompter

decision would have better served the interests of justice.

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B. Sentencing

The next question is whether Judge Young erred in

resentencing Snyder. Snyder alleges two errors: first, he claims

Judge Young failed to explain why he saw fit to sentence Snyder at

the midpoint, rather than the low end, of the applicable guideline

range; second, he claims that Judge Young failed adequately to

consider various grounds for departure and consequently failed to

depart downward from the applicable guideline range.

Snyder's first claim is based on 18 U.S.C. § 3553(c),

which requires the sentencing court to explain how it determined the

applicable guideline range and, if that range exceeds twenty-four

months, why it selected the particular point that it did within that

range. Snyder challenges the second aspect of Judge Young's

calculation of his sentence, arguing that the judge's decision to

sentence Snyder at the midpoint of the applicable guideline range was

arbitrary and unjustified by the facts of the case.4

4 Although not contested here, the applicable guideline range
has been a matter of some dispute in the case. In Snyder I, Judge
Harrington found that Snyder had not committed armed robbery with the
handgun he was convicted of possessing, contrary to the government's
contention. Consequently, his offense level was set at 33 rather than
34, and the applicable guideline range was determined to be 235 to 293
months rather than 262 to 327 months. See 954 F. Supp. at 21. At
resentencing, Judge Young was initially inclined to find that Synder
had in fact committed armed robbery with the handgun, but deferred to
Judge Harrington's finding, which was not appealed in Snyder I, as the
law of the case. The government does not attempt to appeal this aspect
of Judge Young's sentencing decision here.

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 The record of the sentencing hearing reveals that Judge

Young adequately explained his decision to sentence Snyder at the

midpoint of the applicable guideline range. The government argued

exhaustively for such a sentence, based on the grounds that: (1)

Snyder had used the firearm underlying his § 922(g)(1) conviction in

an armed robbery on January 10, 1995; (2) pursuant to the arrest for

the armed robbery, the firearm was found in the trunk of a car along

with a ski mask and duct tape, indicating Snyder intended to use the

firearm for future unlawful conduct; and (3) Snyder had a criminal

record considerably more serious than the minimum necessary to

trigger the applicable guideline range. While Judge Young chose to

defer to Judge Harrington's finding that Snyder had not committed the

armed robbery of January 10, see note 4 supra, he ultimately agreed

with the government's recommendation based on the other two grounds

it proffered:

This case seems to be a quintessential case for the
imposition of the penalty that the Congress has required
to be imposed.

. . . .

[T]he record of crimes of violence here, the setting which
I find supported by the facts, the finding of the mask and
duct tape with the weapon, the evidence . . . amply
justifies the inference that this weapon was being carried
. . . for the purpose of aiding and abetting another
felony, [and] against this background justifies the
sentence of the Court.

In context, the court's explanation was sufficiently specific to meet

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the requirements of § 3553(c).

Snyder's second claim is that Judge Young erred in

declining to depart downward. Specifically, Snyder argues that Judge

Young failed to give adequate consideration to four potential grounds

for downward departure: (1) Snyder's conviction rested on an

erroneous jury instruction; (2) the government improperly paid a key

witness in exchange for his testimony; (3) there was no compelling

federal interest in prosecuting Snyder's "local" offense; and (4)

Snyder's criminal history category overstated the seriousness of his

criminal past. All of the asserted grounds are meritless.

The first two asserted grounds are insufficient for

departure as a matter of law. Snyder invokes U.S.S.G. § 5K2.0, which

grants a judge discretion to depart downward if "there exists . . .

[a] mitigating circumstance of a kind, or to a degree, not adequately

taken into consideration by the Sentencing Commission." But the

invocation comes up short. Even assuming Snyder's conviction rested

on an erroneous jury instruction and the testimony of an unlawfully

compensated witness,5 Snyder has entirely failed to explain how

5 While we need not reach the issue, we note that the
government did not unlawfully compensate any witness in this case. As
a general matter, promises of leniency or material assistance given by
the government in exchange for a witness's testimony do not violate
federal bribery laws. United States v. Lara, 181 F.3d 183, 198 (1st
Cir.), cert. denied, 528 U.S. 979 (1999). We have acknowledged that
"there are surely outer limits on what a prosecutor can do in offering
benefits to a witness," United States v. Murphy, 193 F.3d 1, 9 (1st
Cir. 1999); but the defendant offers no support for his assertion that

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either factor is relevant to sentencing. He does not claim, for

example, that the government paid a witness to testify so as to

exaggerate certain features of his offense, in an attempt at

manipulating his sentence. Cf. United States v. Montoya, 62 F.3d 1,

3-4 (1st Cir. 1995).6

Rather, Snyder's claim seems to rest on the view that a

trial error or prosecutorial misdeed in and of itself permits

downward departure. Such a view, however, misconceives § 5K2.0 as

though it were an alternative avenue for post-conviction relief. If

Snyder did in fact suffer a faulty trial or tainted prosecution, he

may properly seek to vacate his conviction, but not to shorten his

sentence. The district court correctly arrived at the same

conclusion with respect to the jury instruction issue:

I . . . as an institutional matter reject the argument
that some alleged misstep in the trial warrants a lower
sentence. That's not the way to proceed. But if there
has been, I'll address that in the petition for habeas

the compensation provided here -- housing, modest subsistence payments,
help in securing lenient dispositions of pending state court cases --
approached these outer limits.
6 Indeed, the testimony that Snyder claims to have been the
object of a government bribe was that Snyder had committed an armed
robbery with the firearm underlying his conviction. But this testimony
had no impact on Snyder's sentence. Judge Harrington explicitly found
the testimony not to be credible for purposes of sentencing, see Snyder
I, 954 F. Supp. at 21, and Judge Young deferred to this finding at
resentencing, see supra note 4.

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 corpus.7

Only in those rare cases where a procedural flaw raises concerns of

particular relevance to sentencing -- as opposed to mere concerns

about the propriety of the defendant's conviction -- may downward

departure be warranted under § 5K2.0. See United States v. Crippen,

961 F.2d 882, 885 (9th Cir. 1992) ("for a factor to be considered

[mitigating], it must be tied to some penological purpose or

legitimate sentencing concern" (emphasis in original)); cf. United

States v. Martinez, 136 F.3d 972, 979-80 (4th Cir. 1998) (finding

ineffective assistance of counsel by itself to be irrelevant to

sentencing); Crippen, 961 F.2d at 885 (same). The same is true as to

prosecutorial misconduct. Compare United States v. Valencia-Lucena,

925 F.2d 506, 515 (1st Cir. 1991) (stating general rule that "[a]

sentencing departure is not warranted in response to conduct of the

government . . . ."), with Montoya, 62 F.3d 1, 4-5 (recognizing that

departure may be warranted in the "extreme and unusual case" where

government has engaged in "sentencing factor manipulation").8

7 As to Snyder's witness compensation claim, the district court
simply remarked that the claim had no relevance to sentencing.
8 In United States v. Rowe, 202 F.3d 37 (1st Cir. 2000), we
questioned whether Valencia-Lucena remains good law in the wake of Koon
v. United States, 518 U.S. 81 (1996). See 202 F.3d at 40-41. Koon
generally discourages courts from categorically refusing to consider
certain factors under § 5K2.0, see 518 U.S. at 94, and so certainly
would disfavor a rule categorically disqualifying government misconduct
as a potential ground for departure. But here, we adopt no such rule.
We merely state the obvious: government misconduct may serve as a

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 Snyder's third asserted ground for departure -- the

supposed lack of any compelling federal interest to justify his

federal prosecution -- is likewise flawed as a matter of law. It is

not a compelling federal interest, but merely a federal interest,

that is required to justify a defendant's federal prosecution. Here,

such interest is supplied by the Commerce Clause. See United States

v. Cardoza, 129 F.3d 6, 10-11 (1st Cir. 1997). Snyder concedes that

§ 922(g)(1) is constitutionally valid and that it provided sufficient

legal authority for his federal prosecution. He nonetheless insists

that his offense was purely "local," that the federal government's

sole motive in prosecuting him was to lengthen his prison time by way

of the Sentencing Guidelines, and that in such circumstances, § 5K2.0

allows a judge to depart downward in order to check the government's

intemperate -- albeit legal -- use of its prosecutorial discretion.

We rejected this very argument in Snyder II:

[I]t is a bedrock principle of our system of criminal
justice that a federal judge may not interfere with the
government's prosecutorial decisions solely to vindicate
his subjective view of the wisdom of a given enforcement
strategy. It follows inexorably that the government's
lawful selection of Snyder for federal prosecution has no
relevance to the sentencing inquiry.

136 F.3d at 70 (internal quotation marks and citations omitted). The

ground for departure, but only if relevant in some particular way to
sentencing. See United States v. Dethlefs, 123 F.3d 39, 47 (1st Cir.
1997) ("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.")

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district court thus committed no error in refusing to consider the

wisdom of Snyder's prosecution as a ground for departure.

Fourthly, Snyder asserts that his criminal history

category overstates the seriousness of his prior criminal record,

warranting a downward departure pursuant to U.S.S.G. § 4A1.3. Snyder

concedes that his record includes numerous convictions, but he

emphasizes their vintage. His last violent felony conviction, he

claims, was in 1984; his subsequent offenses he deems "minor."9

A district court is entitled to depart on such ground, but

the refusal to depart is not reviewable at all unless the district

court mistakenly believed that it lacked such authority. Snyder

contends that Judge Young misunderstood his argument to be that he

had undergone "extraordinary rehabilitation"; as a result, Snyder

says, Judge Young failed to appreciate that he was being asked to

depart under § 4A1.3, and that he had the authority to so depart.

But while Judge Young did state that he rejected "the argument that

9 This characterization is, to put it mildly, not entirely
honest. Snyder was in jail for most of the time from 1984 until his
arrest in this case in 1995, which obviously limited his opportunities
for criminal conduct. Moreover, when Snyder was out on parole, he was
found guilty in 1990 of selling heroin, arrested in 1991 for assault
and battery upon a police officer, convicted in 1992 of stalking a
woman who had a restraining order against him, and arrested again in
1992 for robbery -- all hardly "minor" crimes. Finally, it is worth
noting that Snyder was assigned 20 criminal history points in his pre-
sentencing report; a mere 13 would have been sufficient to place Snyder
in his criminal history category of VI. It is little wonder that the
trial court was not impressed with this argument.

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there has been extraordinary rehabilitation," the context makes clear

that this characterization was simply a gloss he put on the argument.

As the judge later stated: "The record of crimes of violence here . .

. justifies the sentence of the Court." There is thus no reason to

believe that Judge Young misunderstood his authority to depart under

§ 4A1.3.

C. Motion for New Trial

Snyder lastly appeals the district court's denial of his

motion for a new trial. The motion was based on his successful

collateral attack in 1998 of his 1992 stalking conviction.10 The

essence of Snyder's argument is that even though the stalking

conviction was still valid when he was found in possession of a

firearm in 1995, the conviction can no longer serve as a predicate

for his § 922(g)(1) offense now that it has been vacated. And

because all of his other convictions are also problematic as

predicates -- or so he claims11 -- Snyder argues he must be awarded a

10 The attack was based on Commonwealth v. Kwiatkowski, 637
N.E.2d 854 (Mass. 1994), in which the Massachusetts Supreme Judicial
Court held that, as a constitutional matter, a certain Massachusetts
stalking statute had to be interpreted so as to require at least three
incidents of harassing the victim. Id. at 858. Snyder apparently had
engaged in several such incidents, but only one occurred after the
effective date of the statute.
11 Snyder claims that until the Supreme Court's 1998 decision
in United States v. Caron, 524 U.S. 308 (1998), it was not clear
whether his older Massachusetts convictions could serve as predicates,
and therefore the convictions were problematic as predicates at the
time of his indictment. Because we find that, in any event, Snyder's

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new trial so that he may be given the opportunity to argue that he

was not a "felon" for purposes of § 922(g)(1) at the time he was

caught possessing a firearm.

Snyder's argument runs directly contrary to the Supreme

Court's decision in Lewis v. United States, 445 U.S. 55 (1980). In

that case, the Court considered whether a successful collateral

attack on a prior felony conviction means that the conviction may no

longer serve as a predicate for purposes of 18 U.S.C. § 1202(a)(1), a

predecessor to § 922(g)(1). The Court held that under § 1202(a)(1)

"a felony conviction imposes a firearm disability until the

conviction is vacated or the felon is relieved of his disability by

some affirmative action, such as a qualifying pardon or a consent

from the Secretary of the Treasury." Id. at 60-61. The Court went

on to state that "Congress clearly intended that the defendant clear

his [felon] status before obtaining a firearm." Id. at 64 (emphasis

in original). Thus it concluded that "§ 1202(a)(1) prohibits a felon

from possessing a firearm despite the fact that the predicate felony

may be subject to collateral attack on constitutional grounds." Id.

at 65. Moreover, the Court specifically found "little significant

difference" between § 1202(a)(1) and § 922(g)(1) in this regard. Id.

("[T]o limit the scope of §§ 922(g)(1) and (h)(1) to a validly

stalking conviction was valid as a predicate, we do not address this
second argument.

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convicted felon would be at odds with the statutory scheme as a

whole.").

Snyder points to cases where a defendant has been

sentenced under § 924(e), the Armed Career Criminal Act, which

imposes a 15-year mandatory minimum if the defendant has three prior

violent felony convictions. As to those cases, we have held that the

defendant is entitled to resentencing upon eliminating a necessary

predicate conviction in support of the sentence -- even if the

conviction was still valid at the time the sentence was imposed.

Snyder argues by analogy that if in such circumstances "an enhanced

sentence must be vacated, certainly a conviction must be vacated as

well."

Some support for this argument might be thought to come

from our decision in United States v. Pettiford, 101 F.3d 199 (1st

Cir. 1996), a case construing § 921(a)(20), which defines what counts

as a predicate conviction for the purposes of both § 922(g)(1) and §

924(e). Though not mentioned in our decision, § 921(a)(20) had by

that time been amended in 1986 -- after Lewis was decided -- to

provide that "[a]ny conviction which has been expunged . . . shall

not be considered a conviction for purposes of this chapter . . . ."

18 U.S.C. § 921(a)(20)(B). We held, without mentioning Lewis, that

the section could be read to exclude convictions valid at the time of

sentencing but expunged subsequently. See id. at 201.

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 However, Pettiford was a sentencing case and its holding

must be read in that context. Pettiford merely holds that a

conviction expunged after sentencing can no longer serve as a

predicate for a § 924(e) sentencing enhancement. It does not hold

that a conviction expunged after a § 922(g)(1) offense can no longer

serve as a predicate for that offense. The two situations call for

differential treatment. As we noted in United States v. Paleo, 9

F.3d 988 (1st Cir. 1992), the federal gun laws, such as 922(g)(1),

reflect "the desirability of having a clear, bright line in respect

to gun possession: one who has a felony conviction on the books, a

conviction not yet set aside, should simply know not to possess a

gun." Id. at 989. By contrast, we saw no rationale for a bright-

line rule with respect to § 924(e), so we found it appropriate to

treat vacated convictions differently for purposes of that section.

See id. We recognized an important distinction: "Lewis is

inapplicable where prior convictions are used to determine the

punishment, rather than to define the offense." Id. (quoting United

States v. Clawson, 831 F.2d 909, 914-15 (9th Cir. 1987)). Pettiford

goes no further than this. Because prior convictions are used to

define § 922(g)(1), Lewis still applies to this case. See also

United States v. Morgan, 216 F.3d 557, 562-67 (6th Cir. 2000),

petition for cert. filed, ___ U.S.L.W. ___ (U.S. Sept. 13, 2000) (No.

00-6270) (Lewis still applies to § 922(g)(1) offenses notwithstanding

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1986 amendments to § 920(a)(20)); United States v. Kahoe, 134 F.3d

1230, 1234 (4th Cir. 1998) (same).12

Therefore, under Lewis, Snyder's belated success in

vacating his 1992 stalking conviction bears no relevance to his

conviction under § 922(g)(1). At the time that he was caught

possessing a firearm, the 1992 conviction was still in effect, as was

§ 922(g)(1)'s concomitant prohibition on his possessing a firearm.

The district court thus did not err in denying Snyder's motion for a

new trial.

III. CONCLUSION

For the foregoing reasons, the various rulings of the

district court are affirmed.

12 Both Morgan and Kahoe rejected the holding of Pettiford,
apparently construing the case to apply to § 922(g)(1) cases as well as
§ 924(e) cases. Morgan, 216 F.3d at 565; Kahoe, 134 F.3d at 1234-35.
But because, as we hold here, Pettiford is properly restricted to the
latter context, it is not in actual tension with Morgan and Kahoe.

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