Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2240
UNITED STATES OF AMERICA,
Appellee,
v.
EDWARD J. CRONIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Porfilio,* Senior Circuit Judges.
Francis J. DiMento, with whom DiMento & Sullivan and Jason A.
Kosow were on brief, for appellant.
Samuel W. Buell, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
May 14, 2003
____________
*Of the Tenth Circuit, sitting by designation.
Per Curiam. At sentencing in this case, the defendant
sought a downward departure on a number of stated grounds.
Although these included several familiar departure categories, the
district court said that "as a matter of law [it] ha[d] no power to
grant [the] request for downward departure." In context, this
statement partakes of the same inherent ambiguity as the comparable
statement made by the same judge in United States v. Rodriguez, No.
02-1861 (1st Cir. Apr. 30, 2003). For all practical purposes,
then, the disposition of this appeal is controlled by our opinion
in Rodriguez. We therefore vacate the defendant's sentence and
remand to the district court for further proceedings consistent
with Rodriguez.
On remand, the district court may either essay a
departure, making factual findings sufficient to justify such a
step, or decline to depart and say, as to each of the proffered
grounds for departure, whether its decision rests on a categorical
rejection of the reason offered (because the court deems it legally
unavailable) or whether, accepting or at least not categorically
rejecting the ground, it thinks that "degree," lack of persuasive
proof, or other considerations do not justify a departure. The
district court should then resentence the defendant and, if either
side is dissatisfied, that side can appeal so long as the
sentencing determination entails an appealable issue.
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We need go no further. We take no view, at this time, as
to whether the facts proffered by the defendant would, if proven,
justify the district court in departing downward. That judgment
cannot be made in a vacuum, but, rather, requires particularized
factual findings.
Vacated and remanded.
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