United States Court of Appeals
For the First Circuit
No. 03-1550
UNITED STATES OF AMERICA,
Appellant,
v.
ANTONIO ROSELLI,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Lipez, Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.
S. Robert Lyons, Attorney, Tax Division, U.S. Department of
Justice, with whom Eileen J. O'Connor, Assistant Attorney General,
Robert E. Lindsay, and Alan Hechtkopf, Attorneys, Tax Division,
U.S. Department of Justice, were on brief, for appellant.
Richard M. Egbert, with whom Patricia M. DeJuneas was on
brief, for appellee.
May 5, 2004
LIPEZ, Circuit Judge. Defendant Antonio Roselli pleaded
guilty to tax fraud. At sentencing, the district court declined to
determine the exact amount of the tax loss, and the offense level
that would result from such a determination, ruling that such a
finding would not affect the sentence. The court then departed
downward from the Sentencing Guidelines based on Roselli's
extraordinary family circumstances. The Government now appeals
both the failure to specify an amount of tax loss and the decision
to depart. Although we agree that the failure to specify an amount
of tax loss and the related offense level was an error, we find
that error harmless, and we affirm.1
I.
In 1989, Antonio Roselli began working as a partner in an
accounting firm where he provided tax services. In 1997 and 1998,
Roselli prepared tax returns on behalf of his clients that included
false deductions for charitable contributions and business
expenses. He charged his clients approximately $250 for each false
return. Roselli also amended tax returns from prior years, adding
1
Prior to oral argument, the district court granted appellee's
motion to supplement the appellate record with the probation
officer's confidential sentencing recommendation. In granting the
motion, the district court explained that it does not normally
consult such confidential recommendations when making sentencing
decisions, and did not consult the recommendation in this case.
One member of this panel has reviewed the probation officer's
sentencing recommendation. However, that recommendation has not
been discussed among the panel members, and it has not been
considered in the decision of the panel.
-2-
false deductions in an effort to procure retroactive refunds. For
each amended return he charged approximately one third of the
expected refund. The Government contends that, all told, Roselli
prepared more than 140 false tax returns, accounting for $101,524
in tax loss to the United States Treasury.
On August 29, 2002, Roselli pleaded guilty to one count
of conspiracy to aid, assist, and abet in the filing of materially
false tax returns in violation of 26 U.S.C. § 7206(2). In the plea
agreement, the Government stated its belief that the tax loss was
$101,524, indicating a base offense level of 14 pursuant to section
2T1.4 of the Sentencing Guidelines.2 The Government argued that
the appropriate total offense level, after several adjustments, was
13.3 The Government agreed to recommend a sentence of twelve
2
All references to the Sentencing Guidelines are to the 1998
edition, which was in place at the time Roselli committed his most
recent offense. Normally, we apply the edition in effect at the
time of sentencing. See United States v. Harotunian, 920 F.2d
1040, 1041-42 (1st Cir. 1990)("Barring any ex post facto problem,
a defendant is to be punished according to the guidelines in effect
at the time of sentencing."). However, § 2T4.1 provides for lower
offense levels in the 1998 guidelines than it does in the current
edition. "Because imposition of the amended guidelines would have
resulted in a higher BOL, and thus raised ex post facto concerns,"
we apply the 1998 Sentencing Guidelines. Harotunian, 920 F.2d at
1042.
3
The Government reached this calculation as follows: (1) an
offense level of 14 for a tax loss greater than $70,000 but less
than $120,000 pursuant to U.S.S.G. § 2T4.1; (2) a two level
increase, pursuant to U.S.S.G. § 2T1.4(b)(1)(B), because Roselli
was in the business of preparing tax returns; (3) a three level
decrease for acceptance of responsibility pursuant to U.S.S.G. §
3E1.1 (Section 3(e) of the plea agreement stipulated that the
-3-
months incarceration, a $20,000 fine, a $100 special assessment,
and three years of supervised release. Roselli asserted that the
tax loss was not readily ascertainable and, in any event, was far
less than $101,524. Although he asserted that the proper total
offense level was 10, he nevertheless agreed to recommend the same
sentence as the prosecution, except that he would seek home
detention for the twelve month period rather than incarceration.4
At the sentencing hearings, Roselli asserted that the tax
loss was between $8,000 and $10,000. He offered several examples,
though not an exhaustive list, of tax returns that he alleged
should not have been included in the government's loss calculation.
These examples amounted to an alleged overstatement of $52,525,
bringing the tax loss down to no more than $48,999. Nevertheless,
Roselli reiterated that he would accept the Government's
Government would recommend a three level decrease if the court
finds the adjusted offense level to be 16 or greater, and would
recommend a two level decrease otherwise). This total offense
level of 13, with a criminal history category of I--which is
undisputed in this case--corresponds to a guideline range of 12-16
months in Zone D.
4
Roselli reached his calculation as follows: (1) an offense
level of 10 for a tax loss greater than $8,000 but less than
$13,500, pursuant to U.S.S.G. § 2T4.1; (2) a two level increase,
pursuant to U.S.S.G. § 2T1.4(b)(1)(B), because Roselli was in the
business of preparing tax returns; (3) a two level decrease for
acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. The
resulting total offense level of 10, with a criminal history
category of I, corresponds to a guideline range of 6-12 months in
Zone B. Pursuant to U.S.S.G. § 5C1.1(c)(3), the court could
satisfy the 6-12 month range with a sentence of probation with a
condition of home detention.
-4-
recommendation of a total offense level of 13 so long as the court
did not make a finding that the tax loss was $10,000 or more. The
Government argued that the court must make a specific finding as to
the tax loss and calculate the offense level based on that finding.
During the sentencing hearing, Roselli's counsel
explained that a tax loss finding could have harmful collateral
consequences in a subsequent deportation proceeding. Although
Roselli has lived in the United States for approximately 34 years,
he is a citizen of the United Kingdom and may be subject to
deportation if he is convicted of an "aggravated felony." 8 U.S.C.
§ 1227(a)(2)(A)(iii). The violation of 26 U.S.C. § 7206(2)is not
specifically listed as an aggravated felony, but the definition of
"aggravated felony" includes any offense that "involves fraud or
deceit in which the loss to the victim or victims exceeds $10,000."
8 U.S.C. § 1101(a)(43)(M)(i).5 If the court made an explicit
finding that the tax loss was greater than $10,000, such a finding
might be preclusive in any subsequent deportation proceeding. See,
e.g., Hammer v. INS, 195 F.3d 836, 840-41 (6th Cir. 1999) (findings
made during a denaturalization proceeding have preclusive effect in
a subsequent deportation proceeding). Roselli would then be
5
An alien may also be deported for an offense "described in
section 7201 of Title 26 (relating to tax evasion) in which the
revenue loss to the Government exceeds $10,000." 8 U.S.C. §
1101(a)(43)(M)(ii). However, because Roselli pleaded guilty to
violation of 26 U.S.C. § 7206(2) (assisting in filing a false
return), this provision apparently would not apply.
-5-
subject to deportation if the court found that a violation of 26
U.S.C. § 7206(2) fit the parameters outlined in 8 U.S.C. §
1101(a)(43)(M)(i).
After receiving supplemental briefs on the issue of the
tax loss finding, the court declined to determine whether the tax
loss was $101,524 as suggested by the Government, between $8,000
and $10,000 as suggested by Roselli, or somewhere between those two
figures. The court reasoned that if it accepted Roselli's
assertion that the tax loss was between $8,000 and $10,000, the
resulting total offense level would be 10, corresponding to a
guideline range of 6 to 12 months and a fine of between $2,000 and
$20,000. If the court accepted the Government's contention that
the tax loss was $101,524, the total offense level would be 13,
corresponding to a guideline range of 12 to 18 months and a fine of
$3,000 to $30,000. Thus, there was a point of overlap in guideline
ranges that corresponded precisely with the Government's sentencing
recommendation: 12 months of incarceration and a fine of $3,000 to
$20,000.6 The court then stated its conclusion on the tax loss
finding issue:
I'm confronted with, I think, a realistic
prospect that the tax loss could be disputed.
And the process of resolving that dispute
6
Imposition of supervised release and a special assessment are
not tied to the sentencing range, and therefore the existence of an
overlap does not affect these aspects of the sentence. See
U.S.S.G. § 5D1.1; U.S.S.G. § 5E1.3.
-6-
would be not quite the equivalent of the trial
itself, but would be a quite demanding claim
upon the Court's resources. Here, I would
have to, I think, hear from [a witness]. I'd
have to examine a variety of different tax
returns to determine the tax loss. And there
seems to me to be no particular benefit to
doing that when we're dealing with overlapping
Guidelines. And, of course, it's particularly
the case that the Government in its plea
agreement has committed itself to making a
recommendation at that point of overlap under
the Guidelines.
Having determined that the appropriate Guidelines sentence
corresponded to a point of overlap in the two guideline sentencing
ranges suggested by the parties, the court ruled that a finding as
to the exact amount of the tax loss would "not affect sentencing"
and was therefore unnecessary. Fed. R. Crim. P. 32(i)(3)(B).7 The
court made only the general finding that the tax loss was "not less
than $8,000."
The court then considered Roselli's request for a
downward departure from the Guidelines sentence based on the harm
that his incarceration would cause to his family. Because two of
7
The court cited Fed. R. Crim. P. 32(c). However, after the
amendments to the Federal Rules of Criminal Procedure effective
December 1, 2002, the relevant language is now in Fed. R. Crim. P.
32(i)(3)(B). Rule 32(i) provides:
(3) Court Determinations. At sentencing, the court:
. . .
(B) must--for any disputed portion of the presentence
report or other controverted matter--rule on the dispute
or determine that a ruling is unnecessary either because
the matter will not affect sentencing, or because the
court will not consider the matter in sentencing . . . .
-7-
his four children suffer from cystic fibrosis (CF)8, and because
his wife suffers from several illnesses, Roselli argued that his
family members would suffer extraordinary harm if he were
incarcerated and unable to care for them. To support this
contention, he submitted letters from a doctor, two nurses, and a
social worker familiar with his children's condition and the
integral role of parental care in battling CF. He also submitted
letters from his wife, Kara, his wife's doctor, and his mother-in-
law outlining their daily home life, Kara's illnesses, and the
inability of other friends and relatives to adequately replace the
services and care that Roselli provides to both his wife and
children. The Government offered no evidence to rebut Roselli's
description of the facts. Rather, it argued that the evidence
8
In a letter submitted to the district court, Dr. Henry
Dorkin, Director of the Cystic Fibrosis Center at the Massachusetts
General Hospital, describes cystic fibrosis as
a chronic, incurable, progressive and terminal
illness of genetic origin. The basic defect
in cystic fibrosis leads to abnormalities in
several organ systems of the body, most
importantly the lungs and gastrointestinal
tract. [CF patients] develop persistent and
chronic lung infections as well as obstruction
of the airways with thick, tenacious
secretions. The effect on the lungs over time
is to develop respiratory insufficiency,
leading to eventual respiratory failure and
death. In a similar fashion, the thickened
secretions obstruct the gastrointestinal
system, impairing nutrition and leading in
some cases to growth failure.
-8-
offered by Roselli, even if true, did not meet the standard for a
downward departure based on extraordinary family circumstances.
The district court disagreed, finding that Roselli was
"irreplaceable" to his family. It granted a downward departure,
stating:
The focus, obviously, is on the family, not
the offender. And it would understate to say
that this family will be devastated in a way
that is truly extraordinary. . . . The
capacity for living that the children have
depends upon, I think, Mr. Roselli's presence.
It is exacerbated by the physical challenges
that Mrs. Roselli faces. And I believe that,
while discouraged, this ground of departure is
meant to address this extraordinary family
circumstance.
The court stated that it would "depart to a probationary sentence,"
but did not specify the extent of the departure, saying only that
it would depart "whether [the total offense level] is a 10 or 13."
The court then sentenced Roselli to a three year term of probation,
12 months to be served in home confinement, a $20,000 fine, and a
special assessment of $100.9
The Government now appeals. It first argues that the
district court was required to determine the tax loss amount and
the related offense level. It then argues that the downward
departure was unwarranted because Roselli failed to meet the
9
Pursuant to U.S.S.G. § 5B1.2(a)(1), a term of probation shall
be "at least one year but not more than five years if the offense
level is 6 or greater."
-9-
standards necessary to justify a departure for family
circumstances. We address these arguments in turn.
II.
We review de novo the district court's conclusion that it
was not required to determine the amount of tax loss and the
related offense level. See, e.g., United States v. Mateo, 271 F.3d
11, 13 (1st Cir. 2001) ("[W]e scrutinize the district court's legal
determinations (including its application of the sentencing
guidelines) de novo . . . .").
A district court does not have to determine the exact
offense level where such a determination would not affect the
court's sentencing decision under the Guidelines. See United
States v. Carrozza, 4 F.3d 70, 88 (1st Cir. 1993) ("To be sure, a
district court has inherent power not to decide disputes that are
immaterial or irrelevant to the ultimate sentence."); see also
United States v. Concemi, 957 F.2d 942, 953 (1st Cir. 1992)
(stating in dicta that any error resulting in a reduction of the
offense level, but not moving the district court's sentence outside
the relevant guideline range, would be harmless). Under certain
circumstances, the choice between two potentially applicable
offense levels does not affect a court’s sentencing decision. "[A]
sentencing court need not choose between two overlapping guideline
ranges when the same sentence would have been imposed under either
range." Carrozza, 4 F.3d at 88. See also United States v.
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Bermingham, 855 F.2d 925, 931 (2nd Cir. 1988)("[D]isputes about
applicable guidelines need not be resolved where the sentence falls
within either of two arguably applicable guideline ranges and the
same sentence would have been imposed under either guideline
range.”). However, "a court may not pick a particular sentence
solely to avoid the necessity of determining the guideline
sentencing range." United States v. Ortiz, 966 F.2d 707, 718 (1st
Cir. 1992). Thus, if the district court settled on a sentence that
happened to fall at the point of overlap in the two potential
guideline ranges, it did not have to determine which offense level,
and thus which guideline range, applied to Roselli.
Prior to considering Roselli's request for a departure,
the district court adopted the Government's position that the
appropriate sentence under the Guidelines was 12 months
incarceration and a $20,000 fine. The court did not explicitly
reach this sentence prior to considering whether there was an
overlap in the sentencing ranges indicated by a total offense level
of 10 and a total offense level of 13. Nevertheless, both the
Government and Roselli suggested to the court that 12 months was
the appropriate sentence under the Guidelines. Thus, it appears
that the court settled on that sentence because of the parties'
mutual suggestion, not because it fell at a point of overlap in the
two potential sentencing ranges.
-11-
The Government nevertheless argues that the district
court's refusal to make an exact tax loss finding was improperly
motivated by the desire to prevent Roselli from facing deportation.
See United States v. Maung, 320 F.3d 1305, 1307-10 (11th Cir. 2003)
(holding that a district court may not depart solely to minimize
the effects of a conviction on immigration proceedings). Although
the record indicates that the court was aware of the potential
collateral effects that a tax loss finding might have in a
subsequent deportation proceeding, it explicitly stated that a tax
loss finding would not affect its sentencing decision and would
waste judicial resources with unnecessary and burdensome fact-
finding. We reject the Government's challenge to the authenticity
of the court's explanation. Moreover, the court was not required
to spend its resources sorting through disputed facts merely
because a tax loss finding might prove beneficial to the government
in a subsequent deportation proceeding.
If the district court had ended its analysis after
refusing to make the tax loss finding, and had sentenced Roselli to
12 months imprisonment and a $20,000 fine, our analysis on appeal
would be complete. However, the district court's subsequent
decision to depart from the sentencing ranges indicated by the
Guidelines poses a potential problem appropriately noted by the
Government. Because the district court did not make a tax loss
finding, and thus did not determine Roselli's exact offense level,
-12-
it could not specify the degree of its departure. The Government
contends that the court's failure to specify the degree of
departure was erroneous.
We agree with the Government that, in most cases, a
district court must determine the defendant's total offense level
prior to departure so that it can specify the degree of departure.
To determine the defendant's offense level, the district court must
first undertake the largely mechanical process of applying the
Guidelines to a variety of objective factors. In a tax fraud case,
one of the objective factors necessary to determine the proper
offense level will be the amount of tax loss. See U.S.S.G. §
2T4.1. The offense level contributes to the determination of a
sentencing range, and a "court shall impose a sentence of the kind,
and within the range, [indicated by the Guidelines] unless 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." 18 U.S.C. § 3553(b).
Thus, to carry out this analysis, a court must first determine the
proper sentencing range under the Guidelines before it can
determine whether that range is inappropriate because of factors
the Commission did not adequately account for in establishing the
Guidelines.
Although we agree with the Government that the district
court erred in failing to make a tax loss finding, we find that the
-13-
error was harmless in this case. First, the error did not affect
the sentence imposed by the district court. See Williams v. United
States, 503 U.S. 193, 203 (1992) ("[O]nce the court of appeals has
decided that the district court misapplied the Guidelines, a remand
is appropriate unless the reviewing court concludes on the record
as a whole that the error was harmless, i.e., that the error did
not affect the district court's selection of the sentence
imposed."). The district court explicitly stated that it would
impose the same sentence "whether [the total offense level] is a 10
or 13," indicating its intention to depart to a probationary
sentence regardless of the amount of the tax loss. There is no
reason to remand the case so that the district court can make a
factual determination that would have no effect on its sentencing
decision.
While the failure to make a tax loss finding did not
affect the court's sentencing decision, it did prevent the court
from specifying the offense level and the degree of its departure.
Pursuant to 18 U.S.C. § 3742(e)(3)(C), we are required to review
whether the district court's "sentence departs to an unreasonable
degree from the applicable guidelines range." See also United
States v. Bogdan, 302 F.3d 12, 16 (1st Cir. 2002) (stating that
review of a district court's decision to depart from the Guidelines
includes a review of the extent of that departure). Ordinarily, we
cannot perform this appellate function if the district court does
-14-
not specify the degree of departure. Requiring the court to
determine the total offense level prior to a departure decision
establishes a basis for the specification of a degree of departure.
Thus, in most cases, the district court must make the findings
necessary--including determining the offense level--to establish
the degree of departure. Cf. United States v. Roberson, 872 F.2d
597, 608 (5th Cir. 1989) ("Whether the court incorrectly determined
the recommended range is relevant to our review of a [departure
because a] . . . sentence that exceeds the Guidelines may look
reasonable when compared to one recommended range, but unreasonable
when compared to another.").
This case, however, presents an unusual circumstance
because the sentence imposed allows us to determine what the total
offense level and the maximum degree of departure must have been,
and hence we can review the departure decision. After departing,
the court sentenced Roselli to 12 months of probation served under
a condition of home detention. Combined with Roselli's criminal
history category of I, an offense level of 10 indicates a
sentencing range of 6-12 months of imprisonment, which falls with
Zone B of the sentencing table. Pursuant to U.S.S.G. §
5C1.1(c)(3), if the sentencing range falls within Zone B the court
may order the defendant to serve the required term as probation
with a condition of home detention rather than as a term of
imprisonment. Thus, Roselli's sentence after departure is
-15-
consistent with the maximum term allowed by an offense level of 10,
served as probation with a condition of home detention pursuant to
§ 5C1.1(c)(3).
Roselli's sentence after departure is not consistent with
an offense level of less than 10. An offense level of 9 indicates
a sentencing range of only 4-10 months. Offense levels of less
than 9 carry a maximum term of six months. Thus, Roselli's
sentence of 12 months of home detention exceeds the sentencing
guideline range authorized by any offense level below 10.
Similarly, Roselli's sentence after departure is not
consistent with an offense level of greater than 10. The
sentencing ranges indicated by offense levels of 11 or 12 fall into
Zone C. Pursuant to U.S.S.G. § 5C1.1(d), a defendant whose offense
level places him in Zone C must serve at least half of his term in
prison.10 Sentencing ranges indicated by offense levels of 13 or
greater fall into Zone D. Defendants in Zone D, pursuant to
U.S.S.G. § 5C1.1(f), must serve their entire term in prison.
Roselli's sentence of 12 months of probation with the condition of
home detention would not be available under any offense level that
indicated a sentencing range in Zone C or D.
10
The other half of the term may be served as supervised
release with a condition of home detention or community
confinement.
-16-
The district court imposed a sentence that is consistent
only with an offense level of 10. We can therefore narrow our
inquiry regarding the degree of departure. If the district court
had decided the tax loss question, and had agreed with the
Government's contention that the tax loss was equal to $101,524, it
would have applied to Roselli a total offense level of 13. The
Government did not argue, and there is no evidence in the record to
suggest, that the tax loss was greater than $101,524. Therefore,
the maximum offense level that the district court could have
applied to Roselli was 13. Because the court departed to a
sentence that is consistent only with an offense level of 10, the
maximum level of departure in this case was three levels, from an
offense level of 13 to an offense level of 10.
The Government correctly points out that, if the district
court had made a finding as to the tax loss, it might have found
that the correct tax loss figure was somewhere between $10,000 and
$101,524. Thus, the court might have determined that the correct
total offense level was 11 or 12, necessitating a departure of only
1 or 2 levels to achieve an offense level of 10. Indeed, if the
district court had agreed with Roselli's contention that the tax
loss was less than $10,000, it could have sentenced Roselli in
-17-
accordance with an offense level of 10 without making any
departure.11
Under different circumstances, this uncertainty about the
level of departure might prevent us from properly reviewing the
extent of the departure and require us to remand the case to the
district court. In this case, however, the district court imposed
a sentence that is consistent only with an offense level of 10. We
can therefore determine that the maximum degree of departure is
three levels. Obviously, if the record justifies a three level
downward departure for extraordinary family circumstances, it would
also justify a lesser departure.12 Therefore, we turn to the merits
of the departure for extraordinary family circumstances.
11
Notwithstanding the possible immigration consequences of
certain tax loss findings, Roselli was arguably disadvantaged in
this proceeding by the court's refusal to make a loss finding. If
Roselli had prevailed in his view of the tax loss, a downward
departure based on extraordinary family circumstances would have
been unnecessary to reach a sentence of probation. As the court
proceeded, however, Roselli was forced to argue for a rare and
discouraged form of departure from the Guidelines.
12
Contrary to the Government's assertion, our decision does not
conflict with United States v. Carrozza, 4 F.3d 70 (1st Cir. 1993).
In Carrozza, there was no point of overlap between the two possible
sentencing ranges. Rather than determine which offense level, and
therefore which sentencing range, was correct, the district court
settled on a sentence between the two ranges. Thus, on appeal, we
could not determine whether the court had departed upward or
downward to reach the sentence it imposed. In this case, the
district court determined that the proper sentence under the
Guidelines was at a point of overlap in the two possible sentencing
ranges, and we can determine that the maximum degree of downward
departure was three levels. Thus, unlike Carrozza, we are able to
adequately review the degree of departure.
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III.
We apply a three part analysis to review of departures:
"(1) we determine whether the stated ground for departure is
theoretically permissible under the guidelines; (2) if so, we
examine the record to assess whether there is adequate factual
support; and (3) we determine the appropriateness of the degree of
departure." Bogdan, 302 F.3d at 16. We review part one of the
test de novo. United States v. Bradstreet, 207 F.3d 76, 81 (1st
Cir. 2000). Pursuant to the PROTECT Act, Pub. L. No. 108-21, 117
Stat. 650, we review part two of this test de novo for all appeals
pending on or filed after April 30, 2003. See United States v.
Thurston, 358 F.3d 51, 70-71 (1st Cir. 2004). The PROTECT Act did
not alter our review of the extent of departures, and we therefore
continue to review part three of the test only for abuse of
discretion. Id. at 70-71; see also Koon v. United States, 518 U.S.
81, 96-97 (1996).
A court must impose a sentence within the range
prescribed by the guidelines "unless 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." 18 U.S.C. § 3553(b). To
warrant a departure, a circumstance must "render the case atypical
and take it out of the 'heartland' for which the applicable
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guideline was designed." United States v. Carrion-Cruz, 92 F.3d 5,
6 (1st Cir. 1996). Among potential factors justifying a departure,
a "discouraged factor" is one "'not ordinarily relevant in
determining whether a sentence should be outside the applicable
guideline range.'" United States v. Mejia, 309 F.3d 67, 70 (1st
Cir. 2002)(quoting U.S.S.G. § 5, part H, intro. cmt.). "The
Sentencing Guidelines deem family circumstances a 'discouraged'
ground for departure, and a district court may depart on the basis
of a discouraged ground only in an 'exceptional' case." United
States v. Louis, 300 F.3d 78, 81-82 (1st Cir. 2002); see also
U.S.S.G. § 5H1.6; United States v. Pereira, 272 F.3d 76, 80 (1st
Cir. 2001).
We have affirmed departures for exceptional family
circumstances only on rare occasions, noting that "time-consuming
family responsibilities, by themselves, are not sufficient to take
a case out of the 'heartland.'" Pereira, 272 F.3d at 80. In
United States v. Carr, 932 F.2d 67, 72-73 (1st Cir. 1991), we
reversed a downward departure based on family circumstances
because, even though Carr and her husband both faced prison terms,
their 4-year-old child could be cared for by Carr's mother during
their incarceration. In United States v. Chestna, 962 F.2d 103
(1st Cir. 1992), we found that incarcerating a single mother of
four young children (aged thirteen, eleven, four, and less than
one) would not cause the exceptional family hardship required to
-20-
depart from the guidelines because "single mother status is not an
idiosyncratic circumstance. . . ." Id. at 107 (internal quotation
marks omitted). In Pereira, we vacated a departure based on the
defendant's role in caring for his elderly parents because the
defendant did not provide specialized care, his siblings were
available to help with the parents' care, and home nursing services
provided an adequate alternative during the period of the
defendant's incarceration. 272 F.3d at 82-83. See also United
States v. Sweeting, 213 F.3d 95, 104-05 (3rd Cir. 2000)(departure
not appropriate for a single mother of five children, one of whom
had Tourette Syndrome, where the care provided by the mother was to
engage in daily exercise with the child, to help him keep his
school and home tasks organized, to administer his medicine when
necessary, and to remove certain foods from his diet).
Nevertheless, we have upheld departures in limited
circumstances where a defendant was so irreplaceable that
incarceration would cause exceptional hardship to his family. In
United States v. Sclamo, 997 F.2d 970, 974 (1st Cir. 1993), we
affirmed a departure where the defendant's stepson, who suffered
from a psychiatric disorder and had a long history of aggressive
and disruptive behavior, was making dramatic progress largely
because of the support and care of the defendant. In that
circumstance, the defendant's important role could not practically
have been filled by any other person. In United States v. Rivera,
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994 F.2d 942, 952-54 (1st Cir. 1993), we ruled that the district
court might justifiably depart on remand where defendant was the
single mother of three young children, received income only from
welfare, and had virtually no contact with or support from other
family members. This combination of factors might be enough, on a
closer review of the facts, to render the defendant irreplaceable
to her young children. See also United States v. Haversat, 22 F.3d
790, 797 (8th Cir. 1994)(upholding departure because defendant's
wife suffered from a severe psychiatric disorder and defendant was
needed to "identify the beginning of any regression and to seek out
immediate treatment to avoid 'a serious situation.'").
A downward departure for extraordinary family
circumstances may be appropriate where the care provided by the
defendant is "irreplaceable or otherwise extraordinary." Pereira,
272 F.3d at 82. This standard requires the district court to
determine whether "there are feasible alternatives of care that are
relatively comparable to what the defendant provides." Id.
(emphasis added). Thus, a downward departure is appropriate if the
defendant's role "is so different in kind or degree from the many
kinds of support that can be important in the [family] relationship
that it makes the family ties and responsibilities factor . . .
exceptional." Louis, 300 F.3d at 82.
This case presents an exceptional situation. Roselli has
four children, each of whom is under the age of 10. Two of the
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children--Antonio, age 9, and Adyn, age 1--suffer from CF. Caring
for Antonio and Adyn requires extensive time and effort by both
Roselli and his wife, Kara. Antonio must visit his pulmonary
doctor at least six times per year and has been hospitalized three
times in the past four years. After each hospitalization,
Antonio's parents must administer intravenous antibiotics three
times a day--with each session lasting approximately one hour--for
three weeks. Antonio requires a special diet which must be
prepared separately from the other children's meals. Each morning
and evening, Antonio must undergo 30 minutes of closely monitored
treatment to combat bacteria that causes deterioration of the
lungs. The parents also administer several other prescription
medications each morning, taking approximately 20 minutes, and
monitor Antonio's chest therapy for 30 to 40 minutes each evening.
Finally, Roselli helps Antonio with his studies and ensures that he
maintains the level of physical activity prescribed by his doctors
by jogging with him, coaching his baseball and football teams, and
transporting him to gymnastics and soccer practice.
Caring for Adyn requires even more attention and effort.
In addition to CF, Adyn suffers from gastroesophageal reflux
disease (GERD), which makes it extremely difficult for him to
consume and digest food. Doctors have installed a feeding tube to
ensure that he gets the nourishment he needs to battle his CF.
Roselli and his wife give Adyn three meals a day via "bolus
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feeding," a process whereby Adyn receives formula through a test-
tube like apparatus attached to his feeding tube. This process
requires both parents: Kara conducts the feeding while Roselli
holds Adyn upright to minimize the chance of vomiting or choking.
Each feeding lasts approximately 45 minutes, requiring significant
strength and endurance to keep Adyn in an upright position.
Roselli has developed a work schedule that allows him to be home
during the morning and to be present for most of Adyn's bolus
feedings. At night, Adyn's feeding tube is attached to a food
pump, which provides both nourishment and most of his medication,
for eight to ten hours. Because Adyn must tolerate this method of
feeding while lying on his back, Roselli and his wife must check
the feeding tube intermittently throughout the night to ensure that
Adyn does not choke or vomit. Both parents are trained to reinsert
the feeding tube if it should accidentally be dislodged. If the
tube is not reinserted within an hour after coming loose, Adyn
would require surgery. Roselli also administers several
medications to Adyn each morning and cleans his feeding tube daily
to prevent infections.
Comparable alternatives to Roselli's care are, for
practical purposes, nonexistent. Kara cannot care for the children
herself, largely because of her own health problems. She suffers
from fibromyalgia, a chronic condition that causes pain in the soft
tissue and joints throughout her body. The effects can be so
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debilitating that they prevent her from completing simple physical
tasks. Other symptoms of her condition include severe fatigue,
irritable bowel syndrome, numbness in her hands and feet,
difficulty sleeping and concentrating, memory lapses, and feeling
overwhelmed when faced with multiple tasks. She also suffers from
chronic migraine headaches, for which she has sought emergency room
treatment on several occasions. Finally, Kara has been diagnosed
with depression and anxiety. She takes a variety of medications to
control each of these illnesses.
Roselli's relatives are unable to provide adequate
assistance. Kara's mother lives more than one hour away and cares
for two terminally ill sons, as well as her husband who suffers
from prostate cancer. Roselli's mother is 74 years old and has
difficulty walking because of her arthritis. Roselli's sister is
the only other family member who lives in Massachusetts, and she
cares for three children of her own.
In-home health care also does not provide a viable
alternative to Roselli's presence. To replace the care that
Roselli provides, the family would have to hire a nurse--or likely
several nurses working in shifts--on a 24 hour-a-day, seven days-a-
week basis. They would have to be trained to provide the special
care that Adyn requires, including bolus feeding and the overnight
feeding system. Even in the event that such care were available
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and not prohibitively expensive, it would not fulfill Roselli's
role in Antonio's exercise regimen and schoolwork.
Finally, emotional support is an important factor under
these circumstances. The letter from CF specialist Dr. Dorkin
states that "[h]aving one child with CF can be overwhelming for
many families. To have two such children can be devastating. . .
. Only the ability to have [Mr. Roselli] share in the care of the
children has kept the children out of the hospital." He further
states that removal of their father from the home "will contribute
to a more rapid course in [the children's] deterioration." A
letter from Kara's doctor states that "I have no doubt that if
[Roselli] is removed from the home and Kara is left with sole
responsibility for caring for her children, Kara's stress and
activity levels would be substantially increased, in turn leading
to an overall decline in her own health as well as her ability to
care for her children." While doubtless the incarceration of a
parent can in many ordinary cases have an unfortunate emotional
effect on other family members, this case is exceptional in that,
besides the emotional impact upon remaining family members, the
removal of Roselli's critical services from his home will impact
severely upon the physical well-being and even the ability to
survive of those left behind.
In Rivera, we wrote that "at some point, the nature and
magnitude of family responsibilities (many children? with
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handicaps? no money? no place for children to go?) may transform
the 'ordinary' case . . . into a case that is not at all ordinary."
994 F.2d at 948. Roselli's family circumstances move this case
well outside the ordinary range. Under these circumstances, where
two children require specialized round-the-clock care because of
CF, where adequate help is not readily available, and where the
other parent is battling her own debilitating health problems, a
three level downward departure for extraordinary family
circumstances is entirely appropriate. The judgment of the
district court is AFFIRMED.
So ordered.
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