United States v. Wallace

United States Court of Appeals
For the First Circuit

No. 05-1142

UNITED STATES OF AMERICA,

Appellee,

v.

TIMI WALLACE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Lipez and Howard, Circuit Judges,
and Cyr, Senior Circuit Judge.

Judith H. Mizner, Federal Defenders Office, District of
Massachusetts, for appellant.
Robret Clark Corrente, United States Attorney, with whom
Domald C. Lockhart and Lee H. Vilker, Assistant United States
Attorneys, were on brief for appellee.

August 14, 2006
 LIPEZ, Circuit Judge. Timi Wallace was convicted by a

jury of charges related to the armed robbery of a firearms store in

Providence, Rhode Island. The district court imposed a 25-year

sentence, 9 years more than the high end of the guidelines range

calculated in the pre-sentence report. On appeal, Wallace

challenges his conviction on several grounds, including errors in

the prosecutor's cross-examination of the defendant and closing

argument, the admission of certain evidence, and errors in the

district court's jury instructions.

Wallace also challenges his sentence, imposed shortly

after United States v. Booker, 543 U.S. 220 (2005), was decided.

Wallace argues that the sentence is based on legal errors in the

district court's calculation of the advisory guidelines range and

its application of guidelines factors to justify an upward

departure from the advisory guidelines range. Wallace also

challenges the reasonableness of his sentence under the sentencing

factors set forth in 18 U.S.C. § 3553(a).

We affirm Wallace's conviction, but remand for re-

sentencing based on errors in the district court's application of

guidelines provisions to depart upward from the advisory guidelines

range.

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 I.

A. The robbery

On September 25, 2000, a man posing as a customer entered

D&B Guns, a federally-licensed firearms dealership in Providence,

Rhode Island. The store's owner, Donn DiBiasio, and his assistant,

Donna Gallinelli, were working at the store that day.1 The

customer, later identified as Nickoyan Wallace ("Nickoyan") (a

brother of the defendant), asked to see certain ammunition clips

for a semi-automatic pistol. After Gallinelli walked behind the

counter to retrieve the keys to open the display case, a second man

entered the store, brandishing a "TEC-9" semi-automatic weapon.

DiBiasio later identified this second man as Timi Wallace, the

defendant-appellant. According to DiBiasio and Gallinelli, Timi

Wallace ran up to DiBiasio, pointed the TEC-9 at him, and shouted,

"Don't move." Gallinelli attempted to flee, at which point

Nickoyan also pulled out a handgun, pointed it at Gallinelli, and

told her to stop. Nickoyan then jumped over the counter and

ordered Gallinelli to open the display case. When Gallinelli

opened the case for the small caliber guns, Nickoyan told her to

open the high caliber gun case instead. He removed six high

caliber handguns, stuffing them into a bag. Timi Wallace told

Nickoyan to hurry up, and they fled the store with the stolen guns.

1
Another store clerk was in the basement cellar of the store,
where he hid as the events described herein unfolded. This
individual did not testify at trial.

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 DiBiasio called 9-1-1. Police found a cellphone left

behind in the store and obtained phone records that showed incoming

calls from one of Nickoyan's and Timi Wallace's brothers, Kamal

Wallace. DiBiasio provided the police with a list of the stolen

firearms. DiBiasio and Gallinelli described the men to the police

and looked at a photo spread in order to identify the perpetrators.

Nickoyan and Timi Wallace were not among those pictured in the

first set of photographs the police showed them. Gallinelli made

no selections from those pictures. DiBiasio said that two of the

pictures were possibilities, but he was not certain. One of the

pictures he flagged was that of Kamal Wallace. Approximately nine

days later, the police asked Gallinelli and DiBiasio to view

additional photo spreads, which included Nickoyan and Timi

Wallace's pictures. Gallinelli identified Nickoyan as the man who

pointed a gun at her and told her to open the display case, but did

not select Timi Wallace as the other perpetrator. DiBiasio

identified Timi Wallace as the man who pointed a gun at him, but

did not select Nickoyan as the other perpetrator.

Based on the information received, the police conducted

surveillance of a third-floor apartment at 181 Pleasant Street on

October 5, 2000, ten days after the robbery. Nickoyan was in the

apartment at the time. While the police were approaching the house

to gain entry, Nickoyan placed a phone call to Timi Wallace, who

was not in the apartment. The police arrested Nickoyan. They

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searched the apartment and found five of the six stolen handguns,

a loaded TEC-9 semi-automatic, a Florida driver's license bearing

a photograph of Nickoyan but listing a false name, two other loaded

firearms, ammunition, and cash.

The apartment also contained a variety of documents

relating to Timi Wallace, including his birth certificate, his

marriage license, a divorce decree, medical and training

certificates, a shipping invoice for a Land Rover, and family

photographs. The police later discovered that the apartment was

rented to Timi Wallace through a "straw co-renter," Lelita McKetty,

who signed her name to the lease but did not pay rent or live in

the apartment. The police believed that Timi Wallace co-signed the

lease using a false name, "Devon Lewis," and later uncovered a

Florida driver's license bearing a photograph of Timi Wallace but

issued in the name "Devon Myron Lewis."

B. The indictment and trial

On October 26, 2000, a federal grand jury sitting in the

District of Rhode Island returned a four-count indictment against

Nickoyan and Timi Wallace. Count I charged that they obtained six

firearms by robbery, in violation of 18 U.S.C. § 1951. Count II

charged that they conspired to obtain the six firearms by robbery,

also in violation of 18 U.S.C. § 1951. Count III charged that they

stole the six guns from a federally-licensed firearms dealer, in

violation of 18 U.S.C. § 922(u). Count IV charged that they

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brandished firearms during and in relation to a crime of violence,

in violation of 18 U.S.C. § 924(c)(1)(A)(ii). A jury convicted

Nickoyan on all four counts and he was sentenced to 204 months

(approximately 17 years) in prison.

Timi Wallace evaded arrest until July 2004. On August

18, 2004, a grand jury returned a superseding indictment

essentially identical to the first indictment, except that, in

response to Blakely v. Washington, 542 U.S. 296 (2004), it added

sentencing guidelines allegations.2 At the trial, both DiBiasio

and Gallinelli testified, and identified Timi Wallace as the second

2
Post-Booker, it is clear that sentencing guidelines enhancements
do not have to be found by a jury. However, in the uncertainty
following Blakely, sentencing guidelines allegations were included
in the indictment. These allegations were: (1) "During the
commission of the offenses charged in Counts 1-4 . . . the
defendant . . . did use a firearm, as described in U.S.S.G.
§ 2B3.1(b)(2)(B)"; (2) "During the commission of the offenses
charged in Counts 1-4 . . ., the defendant . . . did brandish and
possess a firearm, as described in U.S.S.G. § 2B3.1(b)(2)(B)"; (3)
"The defendant . . . did physically restrain Donna Gallinelli and
Donn DiBiasio in order to facilitate the commission of the offenses
charged in Counts 1-3 . . . and to facilitate escape, as described
in U.S.S.G. § 2B3.1(b)(4)(B)"; (4) "The object of the offenses
charged in Counts 1-3 . . . was the taking of one or more firearms,
and in the course of committing the offense charged in Counts 1-3
. . .the defendant . . . did in fact take one or more firearms, as
described in U.S.S.G. § 2B3.1(b)(6)"; (5) "The defendant . . .
possessed a high-capacity, semi-automatic firearm, as defined in
U.S.S.G. § 5K2.17, to wit an Intertec model TEC-DC9, 9mm semi-
automatic pistol, in connection with a crime of violence, as
defined in U.S.S.G. § 4B1.2(a), to wit the offenses charged in
Counts 1 and 2 . . . as described in U.S.S.G. § 5K2.17"; and (6)
"In committing the offenses charged in Counts 1-4 . . . the
defendant . . . used and possessed a weapon and dangerous
instrumentality, in a manner that endangered others, as described
in U.S.S.G. § 5K2.6."

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man who robbed D&B Guns. DiBiasio, who had been a firearms dealer

for over 40 years, testified that the gun that Timi Wallace had

pointed at his face was a particular vintage of the TEC-9 semi-

automatic, and that this gun matched the TEC-9 found in the

apartment. McKetty, the "straw" co-renter of the apartment where

the guns were found, testified that Timi Wallace asked her to co-

sign the lease and that she herself never paid the rent nor lived

in the apartment.

Timi Wallace testified in his own defense. Wallace

conceded that he had asked McKetty to sign the lease to the

apartment, where Wallace lived with Nickoyan for about two weeks in

June; that Wallace had used the Florida driver's license with the

"Devon Myron Lewis" alias; that the personal documents found in the

apartment all belonged to him; that he had been to D&B Guns on

several occasions; and that, by late 2000, he was aware he had been

charged in the robbery and thereafter lived under aliases.

However, Wallace explained that he never paid rent for the

apartment nor signed the lease under his alias or any other name;

that he had no idea how his personal documents came to be present

in the apartment; and that he was neither living in the apartment

at the time of the robbery nor when the weapons were found shortly

thereafter. Wallace testified that, in early July 2000, he moved

to Arizona with no intention of returning to Rhode Island.

Finally, he stated that, on the day of the robbery, he was staying

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at the Crosslands Hotel in Tucson, Arizona using his alias "Devon

Lewis."

The government challenged Timi Wallace's alibi. It

produced records of the Crosslands Hotel indicating that he had

checked in on September 2, 2000, but then checked out on September

13, twelve days before the robbery. When Timi Wallace then

suggested that he might have been staying at a Motel 6 across the

street, the government produced records from Motel 6 showing that

no one by his name or alias had stayed at Motel 6 during that time.

The government also introduced records from a Rhode Island shipping

company showing that Timi Wallace, under the alias "Myron Lewis,"

appeared in person in Rhode Island on September 14, 2000, paying

cash to have his Land Rover shipped to Arizona, where he did not

pick up the car until October 9, 2000, two weeks after the robbery.

The government also produced evidence of a rent payment on the 181

Pleasant Street apartment made on September 26, the day after the

robbery, issued in the name of Lelita McKetty, who had testified

that she never made rent payments on the apartment. The government

introduced records from an airline demonstrating that a "Devon

Lewis" had booked a roundtrip ticket from Providence to Phoenix,

scheduled to leave on August 30 and return on September 20,

although no "Devon Lewis" ever boarded either flight. The

government argued that this evidence undercut Timi Wallace's story

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that he had permanently relocated from Rhode Island in July 2000

and was not in Rhode Island at the time of the robbery.

On October 15, 2004, following the four-day trial, the

jury convicted Timi Wallace on all four counts. Moreover, the jury

found beyond a reasonable doubt that each of the seven alleged

sentencing guidelines enhancements applied. Finally, the jury

found that Wallace "willfully obstructed or impeded or attempted to

obstruct or impede the administration of justice during the course

of the prosecution of this case by committing perjury."

C. Sentencing

1. The pre-sentence report

The pre-sentence report ("PSR") recommended a sentencing

range based on its application of the United States Sentencing

Guidelines ("U.S.S.G.").3 The PSR grouped Counts I and II (armed

3
The PSR applied the United States Sentencing Guidelines Manual
incorporating amendments effective November 1, 1998, explaining
that "it is most beneficial to the defendant." Typically, a
sentencing court must use the edition of the guidelines manual
effective 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, we
presume that the probation office here was attempting to avoid the
ex post facto concerns that are implicated when amendments to the
sentencing guidelines, made after the underlying offense was
committed, would increase the sentence for that offense. See United
States v. Maldonado, 242 F.3d 1, 5 (1st Cir. 2001) ("[W]e
ordinarily employ the guidelines in effect at sentencing only where
they are as lenient as those in effect at the time of the offense;
when the guidelines have been made more severe in the interim, the
version in effect at the time of the crime is normally used, as a
matter of policy and to avoid any hint of ex post facto increase in
penalty."). In any event, neither party here objected to the use

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robbery and conspiracy to commit armed robbery) and found a base

offense level of 20 under the sentencing guidelines. It then

applied a two-level enhancement for the physical restraint of

victims under U.S.S.G. § 2B3.1(b)(4)(B); a one-level enhancement

for theft of a firearm under U.S.S.G. § 2B3.1(b)(6); and a two-

level enhancement for obstruction of justice through perjury at

trial under U.S.S.G. § 3C1.1. The adjusted offense level for

Counts I and II was 25.

For Count III (theft of a firearm from a licenced

firearms business), the PSR found a base offense level of 20. It

then applied a three-level enhancement, because the number of

firearms unlawfully received or possessed during the offense was

between 8 and 12, under U.S.S.G. § 2K2.1(b)(1)(C); a two-level

enhancement, because firearms were stolen, under U.S.S.G. §

2K2.1(b)(4); a two-level enhancement, for physical restraint of

victims, under U.S.S.G. § 3A1.3; and a two-level enhancement, for

obstruction of justice through perjury at trial, under U.S.S.G. §

3C1.1. The adjusted offense level for Count III was 29.

Since Counts I-III involved the same victims and a common

scheme or plan, the PSR calculated the adjusted offense level for

these counts at 29, taking the higher of the two adjusted offense

of the 1998 guidelines manual edition at sentencing or on appeal.
We therefore apply the 1998 edition of the guidelines manual and
will indicate, where necessary, if the provisions of the manual
cited at sentencing have changed in the current edition.

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levels pursuant to U.S.S.G. § 3D1.2(b). Count IV (brandishing a

firearm in violation of 18 U.S.C. § 924(c)(1)) mandates a seven-

year (84 months) consecutive term.

Addressing the defendant's criminal history, the PSR

noted that he had no criminal convictions, and accordingly

designated a criminal history category of I. The criminal history

category, in combination with the adjusted offense level of 29,

yielded a guidelines sentencing range of 87-108 months on Counts I-

III, running consecutively with the 84 months mandated under Count

IV. The PSR mandated a sentence at the high end of the guidelines

range, noting "several aggravating factors in the defendant's

history," including that the offense was "particularly serious and

brazen," and that the defendant has a pending murder charge and was

a fugitive from justice when this offense was committed. The PSR

also stated that the district court might consider applying a

sentencing enhancement under U.S.S.G. § 5K2.17 for using a firearm

in connection with a crime of violence, although it noted that

"those factors were used in calculation of the defendant's base

level offense."

The defendant objected to the PSR's inclusion of several

enhancement provisions, including the enhancements for obstruction

of justice, restraint of victims, possession of 8 firearms during

the commission of the offense, and possession of stolen firearms.

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He also objected to the lack of a downward departure based on his

minimal role in the offense.

2. Sentencing hearing

At sentencing, the defendant requested a sentence at the

low end of the PSR's recommended guidelines range. The government

recommended a sentence in the middle of the guidelines range, 100

months, with a seven-year consecutive sentence. The district court

rejected the parties' recommendations, concluding that the

guidelines range recommended in the PSR was insufficient in this

case:

[T]he Supreme Court has made clear that the
application of the guidelines are advisory.
However . . . the Court has instructed
district courts to consult the guidelines and
to take them into account in sentencing. I
have consulted the guidelines in this case.
I've consulted them in great detail. And it
appears to this Court that the guidelines,
that even when I look at the high end of the
guideline range as applied to Counts I to III
and the seven years added for Count IV do not
yield a sentence that is sufficient in my view
to meet the objectives of the Sentencing
Reform Act at § 3553(a).

The court then considered a number of factors, including the nature

of the guns stolen, Wallace's flight from justice, the terror

inflicted upon the victims, and Wallace's commission of the crime

while under indictment for another felony. After describing how

these factors fit into several grounds for upward departures in the

sentencing guidelines, the district court departed upward five

levels to an offense level of 34, and calculated a new criminal

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history category of III. The court imposed 216 months for Counts

I and II, 120 months for Count III to be served concurrently with

Counts I and II, and 84 months for Count IV to be served

consecutively with Counts I-III. In total, the district court

sentenced Timi Wallace to 300 months, or 25 years in prison. On

appeal, Wallace challenges his conviction and his sentence.

II.

A. Conviction

Wallace challenges his conviction on four grounds.

First, he argues that the government improperly cross-examined him

on the credibility of other witnesses' testimony. Second, he

argues that the prosecution's closing argument contained several

errors that unfairly prejudiced him. Third, he argues that the

district court erred in admitting evidence of an airline

reservation for a flight that was never taken. Fourth, he

challenges the district court's jury instructions on the elements

of the § 924(c) count, flight as evidence of consciousness of

guilt, and reasonable doubt.

1. Cross-examination about other witnesses' testimony

Wallace argues that the government improperly cross-

examined him about whether the testimony of other trial witnesses

was "wrong" or "mistaken" and whether he "disputed" or "disagreed"

with that testimony. Wallace contends that this line of

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questioning was an inappropriate incursion into the jury's role of

determining credibility.

Because the defendant did not object to this questioning

at the time of the trial, we review this argument for plain error.

See United States v. Gaines, 170 F.3d 72, 82 (1st Cir. 1999). "To

prevail on a claim of plain error, [the defendant] bears the burden

of showing that (1) an error occurred, (2) the error was clear or

obvious, (3) the error affected his substantial rights, and (4) the

error also seriously impaired the fairness, integrity, or public

reputation of judicial proceedings." United States v. Medina-

Martinez, 396 F.3d 1, 8 (1st Cir. 2005).

We find no plain error here. To be sure, "it is improper

for an attorney to ask a witness whether another witness lied on

the stand. Underlying this rule is the concept that credibility

judgments are for the jury, not witnesses, to make." United States

v. Thiongo, 344 F.3d 55, 61 (1st Cir. 2003) (internal citations

omitted). However, we "also [have] clarified that asking whether

a witness was 'wrong' or 'mistaken' is proper because the witness

is not required to choose between conceding the point or branding

another witness as a liar." Id. (emphasis added, internal

quotation marks and citation omitted); see also United States

v. Gaind, 31 F.3d 73, 77 (2d Cir. 1994) ("Asking a witness whether

a previous witness who gave conflicting testimony is 'mistaken'

highlights the objective conflict without requiring the witness to

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condemn the prior witness as a purveyor of deliberate falsehood.").

Here, the prosecution's questioning of Wallace did not cross the

line. He did not ask Wallace whether any of the other witnesses

"lied." Instead, he pushed Wallace on how his story comported with

other witnesses' conflicting statements. There was no error.

2. Closing argument

Wallace advances four arguments of error in the

prosecution's closing argument. First, he claims that the

prosecution's reference to Wallace's flight from Rhode Island and

his use of aliases as consciousness-of-guilt evidence was

misleading because, as the government knew, Wallace had been

charged with a felony offense (the murder of his brother Tasfa) six

months prior to the robbery. Second, he asserts that the

prosecutor misstated the defendant's testimony about how he got his

Florida license with the alias. Third, he says that the prosecutor

misstated his testimony about his phone conversation with Nickoyan.

Fourth, he argues that the prosecutor erred by referring to the

TEC-9 admitted into evidence as the TEC-9 used in the robbery.

Because the defendant failed to raise any of these objections to

the closing argument at trial, we review for plain error. See

United States v. Ortiz, 447 F.3d 28, 35 (1st Cir. 2006).

a. Reference to flight and aliases as evidence of
consciousness of guilt

During closing arguments, the prosecution argued that the

defendant had fled, under an alias, because he had been involved in

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the Rhode Island robbery. The defendant argues that the prosecutor

improperly invoked this argument because he knew that the inference

of consciousness-of-guilt in the robbery case was undermined by

evidence not available to the jury, namely, a pending murder

charge. Although the jury was not aware of this fact, Timi and

Nickoyan Wallace were charged with the murder of their brother in

Massachusetts in March 2000, several months before the robbery.

According to the defendant, the murder charge was arguably the real

cause of his flight and use of aliases. The defendant argues that

the prosecutor's remarks were therefore misleading. See United

States v. Udechukwu, 11 F.3d 1101, 1106 (1st Cir. 1993) (noting

that it is improper for a prosecutor "to imply reliance on a fact

that the prosecutor knows to be untrue"); see also United States v.

Blueford, 312 F.3d 962, 968 (9th Cir. 2002) ("[I]t is decidedly

improper for the government to propound inferences that it knows to

be false, or has very strong reason to doubt.").

We have previously noted that "[f]light evidence is

controversial and must be handled with care." United States v.

Benedetti, 433 F.3d 111, 116 (1st Cir. 2005); see also United

States v. Hernandez-Bermudez, 857 F.2d 50, 54 (1st Cir. 1988) ("We

urge . . . that courts exercise caution in admitting this type of

evidence. . . . [A]t least in many cases, [flight] evidence is only

marginally probative as to the ultimate issue of guilt or

innocence." (internal quotation marks and citations omitted)). The

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specific facts of this case, where a pending prior felony charge

could explain the defendant's actions, illustrate the need for

caution in the use of consciousness-of-guilt evidence.

However, we have rejected, in United States v. Boyle, 675

F.2d 430 (1st Cir. 1982), the argument that evidence of the use of

an alias may never support an inference of consciousness-of-guilt

when another charge is pending. See id. at 432-33. In that case,

the defendant argued that the court erred in admitting evidence of

his use of an alias in light of outstanding warrants for other

crimes that he was seeking to evade prior to the robbery for which

he was currently at trial. Id. at 432. In considering his

argument, we rejected a broad rule that would bar alias evidence

whenever a defendant commits more than one crime, noting that

"[s]uch a rule would ignore the substantial possibility that the

defendant is using the alias to evade detection for all his crimes,

including the one charged." Id. at 433. Focusing on the specific

facts in Boyle, we concluded that the district court did not err in

admitting the alias evidence in the robbery trial, noting that the

defendant had used his alias within days of the alleged robbery and

that it was reasonable to infer "that the defendant was seeking to

conceal his true identity from police investigating this fresh

crime." Id. at 432.

Examining the specific facts here, we also find no error.

The record supports the prosecution's theory that Wallace's flight

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and use of aliases were relevant consciousness-of-guilt evidence as

to both the robbery and the murder charges. While Wallace may have

fled Massachusetts and used an alias prior to the robbery to evade

the murder charge, the record evidence also indicates that Wallace

fled Rhode Island under an alias after the robbery and that he

remained in flight and continued to live under an alias after he

received a call from his brother when the police were arresting him

for the robbery.

At the very least, the prosecutor's reference to the

flight and use of an alias do not constitute plain error. Any

overstatements by the prosecution in its closing were mitigated by

the district court's careful instructions that flight did not

necessarily reflect a guilty conscience and that the jury "should

consider that there may be reasons for Timi Wallace's actions that

are fully consistent with innocence." Furthermore, given the

crushing weight of the other evidence against the defendant in this

case (including eyewitness identification and the recovery of five

of the stolen guns and the weapon allegedly used in the robbery in

his apartment), we cannot conclude that any error here affected the

defendant's substantial rights. See United States v. Morales-

Cartagena, 987 F.2d 849, 854 (1st Cir. 1993) (concluding that

prosecutor's misstatements in closing argument did not constitute

plain error because they were, "in relation to the body of evidence

received during trial, relatively insignificant").

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 b. Misstatement of defendant's testimony about the
Florida license

The defendant argues that the prosecutor misstated his

testimony when the prosecutor argued that the defendant "doesn't

really remember who got him the [Florida] license or who gave it to

him," calling into question the defendant's credibility. The

defendant asserts that he testified in clear terms that he obtained

his license from Nickoyan. However, the record supports the

prosecutor's characterization of the defendant's testimony. When

asked "Do you know who got this license for you?" Wallace replied,

"No." While he testified that he gave his brother the photographs

that were used to make the license, he stated that he "guess[ed]"

that his brother "had a friend down there" but he had "no idea how

that person went about getting this license." In light of this

testimony, the prosecutor's statement was not improper.

c. Misstatement of defendant's testimony about his
brother's phone call

In his closing argument, the prosecutor implied that the

jury should be skeptical of the defendant's testimony about his

phone conversation with his brother Nickoyan the night Nickoyan was

arrested. The prosecutor noted that, "in the middle of the night

on October 5th, the most urgent call you could possibly imagine,

three o' clock in the morning he calls him, 'The police are

surrounding my building. What should I do?' He testifies that –

you know, they didn't really talk about that. They went on to

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other, I guess, more pressing things." The defendant argues that

the prosecutor misstated his testimony about his brother's phone

call. Wallace argues that he testified that he had no idea where

his brother called from and that he refused to adopt the

prosecutor's characterization of the conversation as one in which

his brother said there were cops surrounding his building.

We find no error here. The record demonstrates that when

asked what he spoke to his brother about, if not Nickoyan's

impending arrest, Wallace stated "I can't recall. I mean, what I

remember it was very brief." Wallace stated that he remembered

Nickoyan telling him that he (Nickoyan) was in trouble, but Wallace

asserted that Nickoyan did not tell him the nature of this trouble,

or, as far as Wallace could remember, anything about the police

surrounding the building. Thus, the prosecution's characterization

of Wallace's testimony was not plainly erroneous.

d. Reference to the TEC-9 recovered from the apartment
as the TEC-9 possessed by the second man in the robbery

The defendant argues that the prosecutor erred by

repeatedly referring to the TEC-9 admitted into evidence (taken

from the 181 Pleasant Street apartment) as the TEC-9 used in the

robbery. He argues that the gun in evidence had no particular

characteristics to distinguish it from any other TEC-9 and could

not be connected by the prosecution to the TEC-9 used in the

robbery.

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 We find no error here, plain or otherwise. There was

ample evidence to support the government's argument that the TEC-9

recovered from the apartment was the same TEC-9 used in the

robbery. DiBiasio, a firearms dealer with 40 years of experience,

testified that the gun pointed at his face was a particular vintage

of the TEC-9 semi-automatic and that it matched the gun recovered

from the apartment. In addition, the TEC-9 recovered from the

apartment was found there with five of the six stolen handguns from

the robbery. This evidence is enough to support the government's

argument.4

3. Airline reservation evidence

At trial, Wallace objected to the evidence of an airline

flight reservation as irrelevant under Fed. R. Evid. 401 and 402.5

On appeal, he also contends that the evidence was unfairly

4
Wallace also argues that the totality of the errors that he
alleged in the cross-examination and the closing argument
constitutes clear and obvious error. See United States v.
Sepulveda, 15 F.3d 1161, 1195-96 (1st. Cir. 1993) ("[I]ndividual
errors insufficient of themselves to necessitate a new trial, may
in the aggregate have a more debilitating effect."). Because we
have concluded that there has been no error, his totality-of-errors
argument also fails.
5
Fed. R. Evid. 401 defines "relevant evidence" as "evidence having
any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence." Fed. R.
Evid. 402 states in part that "[e]vidence which is not relevant is
not admissible."

-21-
prejudicial under Fed. R. Evid. 403.6 We review the preserved Fed.

R. Evid. 401 and 402 objection for abuse of discretion. See United

States v. Richardson, 421 F.3d 17, 37 (1st Cir. 2005). We review

the unpreserved Fed. R. Evid. 403 objection for plain error. See

United States v. Cotto-Aponte, 30 F.3d 4, 6 n.1 (1st Cir. 1994).

The district court admitted evidence of a Southwest

Airlines reservation made on August 28, 2000 for a roundtrip flight

on August 30, 2000 from Providence, Rhode Island, to Phoenix,

Arizona, scheduled for return on September 20, 2000, in the names

of Devon Lewis and James Coleman.7 The flights were never taken

and there was no evidence as to who made the reservation.

Wallace argues that the evidence should have been

excluded as irrelevant because "there was no foundation linking him

to that reservation." On the contrary, there was ample foundation

linking Wallace to the reservations. The flight reservation was

made in his alias and in the name of a man whom Wallace asserts is

his cousin. Furthermore, Wallace admitted in his testimony that it

was "possible" that he made a flight reservation to Arizona in this

time period. Thus, the flight reservation was adequately linked to

Wallace. As the government argues, the flight reservation,

6
Fed. R. Evid. 403 states: "Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence."
7
According to the defendant, James Coleman is one of his cousins.

-22-
although never used, had some relevance towards undermining

Wallace's claim that he had permanently relocated to Arizona at

some point prior to the date of the reservation. The district

court did not abuse its discretion in admitting this evidence over

the defendant's Fed. R. Evid. 401 and 402 objection.

On appeal, the defendant also argues that the evidence

should have been excluded under Fed. R. Evid. 403 because its

probative value, if any, was outweighed by its unfairly

prejudicial impact. He argues that "[i]ts only possible use could

have been to improperly undermine defendant's contention that he

was in Arizona from July 2000 through October 2000." The

government argues that there was nothing unfair about asking the

jury to draw this inference against the defendant's alibi. We

agree. In any event, there was no plain error under Fed. R. Evid.

403 in admitting this evidence.

4. Jury Instructions

The defendant challenges the district court's jury

instructions on the elements of the § 924(c) count, when flight can

constitute evidence of consciousness of guilt, and reasonable

doubt. Wallace did not object to any aspect of the jury

instructions at trial. We therefore review his claims for plain

error. See United States v. Sabetta, 373 F.3d 75, 80 (1st Cir.

2004).

-23-
 a. Elements of the § 924(c) count

Under 18 U.S.C. § 924(c)(1)(a)(ii),

any person who, during and in relation to any
crime of violence or drug trafficking crime .
. . uses or carries a firearm, or who, in
furtherance of such crime, possesses a
firearm, shall, in addition to the punishment
provided for such crime of violence or drug
trafficking crime -- . . . if the firearm is
brandished, be sentenced to a term of
imprisonment of not less than 7 years.

The district court quoted the full text of the statute, and then

described each element of the offense separately. One of the

elements is that the defendant used or brandished a real firearm,

not a toy or replica. See United States v. Kirvan, 997 F.2d 963,

966 (1st Cir. 1993). The court cautioned the jury that the

government was required to prove that the gun allegedly brandished

was a real gun. The court then stated that "the actual firearm or

firearms allegedly brandished by the defendant need not be

introduced, but they have been, in order for the defendant to be

guilty of the charge as long as you find beyond a reasonable doubt

[that] the defendant had a real gun on September 25, 2000."

Wallace argues that the district court essentially told

the jury that the government introduced the actual firearm

allegedly brandished by the defendant -- despite the defendant's

vigorous challenge to whether the gun produced by the government

was the same gun allegedly used in the robbery. The government

argues that the court used the term "allegedly brandished" and,

-24-
thus, "[i]t was still up to the jury to decide (a) whether Timi had

in fact brandished a gun in the store and (b) whether the gun that

he brandished was the one that had been introduced in evidence."

We agree with the defendant that the language used in

this instruction is somewhat ambiguous. The judge's choice of

words may have inadvertently lent credence to the prosecutor's

argument that the gun found in the defendant's apartment was the

same gun (not just the same model of gun) used in the robbery.

However, even assuming there was some error here, we cannot

conclude that any such error was "clear" or "obvious." The

likelihood of jury confusion was mitigated by the judge's clear

instructions on the text of the actual statute and the fact that

the written instructions provided to the jury omitted the contested

language. Furthermore, as we have already noted, there was ample

evidence that the gun introduced at trial and the gun used in the

store were the same. It is therefore unlikely that any ambiguity

in this part of the court's instructions affected the defendant's

substantial rights or the integrity of the trial.

b. Flight as evidence of consciousness of guilt

The defendant argues that the court should not have given

an instruction on when flight can constitute evidence of a

defendant's consciousness of guilt. He does not challenge the

actual language of the instruction, but contends that there was

insufficient evidence to warrant any instruction concerning

-25-
consciousness of guilt in this case. He reiterates the same

arguments he raised in his challenge to the prosecutor's reference

to his flight in the closing argument. As we concluded, supra

Part II.A.2.a, there was sufficient evidence in the record to

support an inference of consciousness of guilt from his flight in

this case. Moreover, as we also previously discussed, the court

carefully instructed the jury that flight did not necessarily

reflect a guilty conscience and that the jury "should consider that

there may be reasons for Timi Wallace's actions that are fully

consistent with innocence." In light of the evidence and the

court's careful instructions, we find no error here.

c. Reasonable doubt

The court instructed the jury:

The Government must prove facts sufficient to
prove all the elements of the offenses with
which the defendant is charged as I have
explained. Now, the Government's obligation
to prove the defendant's guilt beyond a
reasonable doubt does not mean that it must do
so beyond all doubt or beyond any conceivable
shadow of a doubt. What it means is that the
Government must prove the defendant's guilt by
a reasonable doubt.

I cannot provide you with the definition of
reasonable doubt. You know what 'reasonable'
means and you know what 'a doubt' means.
Therefore it is up to you to decide whether
the Government has proved the defendant guilty
beyond a reasonable doubt.

The defendant argues that the latter portion of this instruction,

i.e., the court's statement that it could not provide the jury with

-26-
the definition of reasonable doubt, in combination with its earlier

statement focusing on what the government does not have to prove,

demonstrated "a lack of balance [] that shifted the focus from the

government's affirmative burden to what the government need not

prove and effectively diminished the standard of proof beyond a

reasonable doubt."

We have previously explained that "reasonable doubt does

not require definition." United States v. Rodriguez-Cardona, 924

F.2d 1148, 1160 (1st Cir. 1991). We have also upheld instructions

on reasonable doubt that have explained what it does not mean:

By itself, the concept of proof "beyond a
reasonable doubt" gives the defendant a
substantial advantage, which is why defense
counsel so often repeat those words in
summation. Although the advantage is a
legitimate one, it does not seem to us one
that is likely to be undermined by an
instruction that with a few general phrases
indicates that not every doubt is a reasonable
one.

United States v. Whiting, 28 F.3d 1296, 1303-04 (1st Cir. 1994).

Considering the district court's instructions as a whole,

we are confident that it did not, as the defendant argues, diminish

the government's standard of proof. Early in the instructions, the

court stated clearly:

In order for the Government to prove the
defendant guilty of an offense, it must
convince you beyond a reasonable doubt that it
has proven each and every element of the
offense. Possibilities or even probabilities
are not sufficient. If the Government fails
to prove any one or more elements of an

-27-
 offense beyond a reasonable doubt, you must
find the defendant not guilty of that
particular offense.

All told, the court mentioned the government's duty to prove the

elements of the offenses "beyond a reasonable doubt" nearly two-

dozen times. Thus, we find no error here.

B. Sentencing

Wallace raises two sets of arguments challenging the

sentence imposed by the district court. First, he argues that the

sentence was based on error in the district court's application of

the advisory guidelines, both in terms of the court's calculation

of the advisory guidelines range and its application of guidelines

provisions to depart upwardly from that range. Second, he argues

that the sentence is unreasonable because it is substantially

greater than necessary to comply with the purposes of sentencing

set forth in 18 U.S.C. § 3553(a).8

8
In summary, these factors are:

(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence to reflect the seriousness of
the offense, to promote respect for the law, and to provide
just punishment; to afford adequate deterrence; to protect the
public; and to provide the defendant with needed educational
or vocational training, medical care, or other correctional
treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established
by the Guidelines;
(5) any pertinent policy statement;
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and

-28-
 The district court sentenced Wallace shortly after

Booker was decided, without the benefit of subsequent developments

in our case law on the application of Booker. See United States v.

Jimenez-Beltre, 440 F.3d 514 (1st Cir. 2006) (en banc); United

States v. Scherrer, 444 F.3d 91 (1st Cir. 2006) (en banc). The

district court explained that it would begin by "consult[ing] the

guidelines and [taking] them into account in sentencing," and then

examining whether the advisory guidelines range "yield[s] a

sentence that is sufficient . . . to meet the objectives of the

Sentencing Reform Act at § 3553(a)." In carrying out this

approach, the district court first noted that the PSR had reached

a guidelines range based on an adjusted offense level of 29 and a

Criminal History Category I. Then, without completing the

guidelines analysis by determining whether an upward departure

under the guidelines was appropriate, the court explained why it

believed that the top of the PSR's recommended guidelines range did

not yield a sentence that was sufficient to meet the objectives of

18 U.S.C. § 3553(a).

After its thoughtful and careful discussion of the

factors in 18 U.S.C. § 3553(a), the district court returned to the

guidelines and described several grounds for departure, not

(7) the need to provide restitution to any victims of the
offense.

See 18 U.S.C. § 3553(a).

-29-
discussed in the PSR, that the court thought were applicable in

this case. Using these grounds for departure, the court calculated

a higher adjusted offense level and criminal history category than

was calculated in the PSR. Only then, after it had gone through

its upward departure analysis, did the court announce its sentence

–- 216 months for Counts I and II (double the high end of the

guidelines range recommended in the PSR for these counts), 120

months for Count III to be served concurrently with Counts I and

II, and 84 months for Count IV to be served consecutively with

Counts I-III. The court then reiterated that it reached the higher

sentence for Counts I and II by applying the departure provisions

in the guidelines:

So that the record is clear, the way in which
I am arriving at the departure, if you call it
that, variance, of 216 months is by an
adjustment of the offense level in this case
for the reasons that I set forth, departure
grounds that I set forth[,] from a 29 to an
offense level 34. That is a five-level
adjustment on offense level. And an
adjustment of the criminal history category to
a criminal history category of three given the
inadequacy of category one for purposes of
assessing the defendant's actual criminal
history and the reasons for that I have set
forth.

The district court explained that it "use[d] the departure

framework as a gauge or a measure of the reasonableness of the

sentence to be imposed."9

9
Although Booker used the term "reasonableness" in discussing
sentencing in the advisory guidelines scheme, we emphasize that

-30-
 The district court's approach to the sentence here is not

the approach that we have adopted in this circuit post-Booker:

Although the guidelines have become advisory
rather than mandatory, determining the correct
GSR [guidelines sentencing range] remains an
appropriate starting point for constructing a
defendant's sentence. Once the sentencing
court has established the GSR (including a
consideration of any applicable departures),
it must then evaluate the sentencing factors
set out in 18 U.S.C. § 3553(a), along with any
other relevant considerations. Finally, it
must determine, in light of that assessment,
whether a sentence above, within, or below the
GSR is warranted. The goal is to fashion "a
sentence sufficient, but not greater than
necessary," for the achievement of the
legitimate objectives of sentencing.

United States v. Dixon, 449 F.3d 194, 203-04 (1st Cir. 2006)

(emphasis added and citations omitted); see also Jimenez-Beltre,

440 F.3d at 518-19. Only after the district court has conducted

the advisory guidelines analysis, including a determination of the

appropriateness of downward or upward departures under the

guidelines, should the court then decide whether the guidelines

sentence comports with the sentencing factors set forth in 18

U.S.C. § 3553(a). Here, the district court did not complete the

guidelines analysis before evaluating the § 3553(a) factors.

"reasonableness" is the standard used to review a sentence on
appeal, not the governing factor for the district court when
determining a sentence in a particular case. See Jimenez-Beltre,
440 F.3d at 519 (explaining that we review a district court's
sentence for "reasonableness," i.e., "a plausible explanation and
a defensible overall result").

-31-
Instead, it turned to those statutory factors before doing the

upward departure guidelines analysis.

The government argues that we should review the district

court's sentence solely for reasonableness under the § 3553

factors, arguing that "the fact that the court later made the

additional observation that, in effect, it had increased the

offense level from 29 to 34 and the [Criminal History Category]

from I to III, does not mean that [the defendant] received a

conventional, pre-Booker, upward departure [analysis]." We might

agree with the government's focus on the reasonableness of the

sentence, irrespective of the district court's error in the

sequence of its analysis, if the government was correct that the

defendant had not received a "conventional, pre-Booker upward

departure [analysis]." Yet the district court unmistakably

explained that it reached the 25-year sentence by applying a

departure analysis, stating that "the way at which I am arriving at

the departure, if you call it that, variance, of 216 months is by

an adjustment of the offense level in this case for the . . .

departure grounds that I set forth[.]" As we have noted, the court

began the sentencing hearing with the initial guidelines range

recommended in the PSR, which incorporated certain sentencing

enhancements. The court then considered whether a sentence at the

top of that range was consistent with the sentencing factors set

forth in 18 U.S.C.§ 3553. It did not, at that point, decide what

-32-
sentence would be consistent with those factors. To arrive at the

specific sentence, the court returned to the guidelines, stating,

"And as I indicated early on, I would use the departure framework

as a gauge or measure of the reasonableness of the sentence to be

imposed." Only after conducting an upward departure analysis did

the court arrive at the specific sentence it imposed.

Because the district court relied on an upward departure

guidelines analysis in reaching the sentence it imposed on Wallace,

we are required to review this analysis for error under the

guidelines (to the extent that Wallace raised such claims). See

United States v. Robinson, 433 F.3d 31, 35 (1st Cir. 2005)

(explaining that, post-Booker, "so far as the Guidelines bear upon

the sentence imposed, the court's calculation must be correct,

subject of course to the limitations of plain error or harmless

error review"). Thus, we must address all of the defendant's

claims of legal errors in sentencing before we consider whether the

sentence as a whole is reasonable. We review claims of legal

errors in sentencing, including errors in the interpretation of

guidelines provisions, de novo. See United States v. Rivera, 448

F.3d 82, 84 (1st Cir. 2006); Robinson, 433 F.3d at 35. We review

the district court's factual findings for clear error. See

Robinson, 433 F.3d at 38. However, because the defendant properly

preserved only one of his claims of error (the application of the

physical restraint enhancement), we review his other, unpreserved

-33-
claims of error in the guidelines analysis for plain error only.

See Rivera, 448 F.3d at 86.

a. Claims of error in the PSR's recommended advisory
guidelines range

The defendant raises two claims of error in the PSR's

recommended advisory guidelines range, which the district court

accepted and used as its starting point during sentencing. First,

the defendant argues that the district court erred in applying a

two-level enhancement for physical restraint of a victim in its

calculation under U.S.S.G. § 2B3.1(b)(4)(B) (robbery) and § 3A1.3

(unlawful possession of a firearm). Second, he argues that the

district court erred in applying a three-level enhancement for the

number of firearms involved in the offense under U.S.S.G.

§ 2K.2(b)(1). We address each claim in turn.

i. Enhancement for physical restraint of victim

The sentencing allegations in the indictment charged that

the defendant and his brother Nickoyan "physically restrained"

DiBiasio and Gallinelli, meriting a two-level enhancement under

U.S.S.G. § 2B3.1(b)(4)(B). This enhancement applies "if any person

was physically restrained to facilitate commission of the offense

or to facilitate escape" during the course of a robbery. U.S.S.G.

§ 2B3.1(b)(4)(B). Section 3A1.3 also permits a two-level

enhancement "if a victim was physically restrained" during the

course of any offense. The jury found beyond a reasonable doubt

that the victims were physically restrained during the robbery.

-34-
The PSR recommended the two-level enhancement. Wallace objected.

Applying the advisory guidelines, the district court applied the

enhancement.

Wallace argues that his conduct, and the conduct of

Nickoyan, did not constitute physical restraint of the victims

because they did not physically touch the victims or force them

into a separate and confined space. The government argues that the

enhancement was appropriate because Wallace and Nickoyan rendered

the victims physically immobile by keeping their guns pointed

directly at each victim in close range, repeatedly telling them not

to move, and because Nickoyan placed his body in the path of

Gallinelli as she tried to flee the store, blocking her escape.

These actions, the government contends, are sufficient to justify

the enhancement.

"Physically restrained" is defined in the Sentencing

Guidelines Manual as "the forcible restraint of the victim such as

by being tied, bound, or locked up." U.S.S.G. § 1B1.1, cmt.

n.1(i) (1998); see also U.S.S.G. § 2B3.1, cmt.(background) ( "The

guidelines provides an enhancement for robberies where a victim .

. . was physically restrained by being tied, bound, or locked

up."). We have observed that "[t]he examples listed in the

guideline definition of 'physically restrained' are merely

illustrative, . . . not exhaustive." United States v. DeLuca, 137

F.3d 24, 39 (1st Cir. 1998). In DeLuca, we affirmed the

-35-
application of the "physical restraint" enhancement against the

defendant because one of the defendant's co-conspirators "pushed

[the victim] as he attempted to leave the hallway in which he was

being assaulted and [another co-conspirator], throughout the

encounter, stood at the hallway door barring egress by [the

victim]. Thus, these physical restrictions on [the victim]'s

freedom of movement constituted 'physical restraint.'" Id.

Other circuits have cautioned against an overly broad

reading of the term "physical restraint". See United States v.

Parker, 241 F.3d 1114, 1118-1119 (9th Cir. 2001) ("[C]ases holding

that a defendant physically restrained his victims usually involve

a sustained focus on the restrained person that lasts long enough

for the robber to direct the victim into a room or order the victim

to walk somewhere. It is therefore likely that Congress meant for

something more than briefly pointing a gun at a victim and

commanding her once to get down to constitute physical restraint,

given that nearly all armed bank robberies will presumably involve

such acts."(internal citations omitted)); United States v. Drew,

200 F.3d 871, 880 (D.C. Cir. 2000) ("The required restraint must,

as the language plainly recites, be physical. While [the victim of

the attempted murder in this case] no doubt felt restrained by [the

defendant], she was not subject to physical restraint, as we

interpret the Guideline's use of that phrase. Any other

interpretation would effectively add the two-level adjustment to

-36-
almost any attempted murder because presumably any victim would

feel restrained if directed to move at gunpoint." (internal

quotation marks and citation omitted)); United States v. Anglin,

169 F.3d 154, 164 (2d Cir. 1999) (concluding that "displaying a gun

and telling people to get down and not move, without more, is

insufficient to trigger the 'physical restraint' enhancement" in

sentencing for armed robbery).

Some courts have found that holding someone at gunpoint

during the commission of an offense, without physical contact or

moving the victim into a separate, confined space, can constitute

"physical restraint." See United States v. Wilson, 198 F.3d 467,

472 (4th Cir. 1999) ("A gun was held to [the carjacking victim's]

head, and she was prevented from leaving her car, albeit briefly,

until [the defendants] were able to get her money and gain control

of her car. Under these circumstances, unquestionably, [the

victim] was physically restrained to facilitate the commission of

the carjacking."); United States v. Fisher, 132 F.3d 1327, 1329-30

(10th Cir. 1997) ("Physical restraint is not limited to physical

touching of the victim. Rather, physical restraint occurs whenever

a victim is specifically prevented at gunpoint from moving, thereby

facilitating the crime. Keeping someone from doing something is

inherent within the concept of restraint, and in this case one

coconspirator deliberately kept the security guard at bay by

-37-
pointing a gun directly at his head while two others looted the

teller counter." (internal citations omitted)).

In this case, while there was no physical contact between

the defendant and the victims, the facts demonstrate that the

defendant and his co-conspirator "physically restrained" the

victims. Notably, the defendant's co-conspirator jumped in front

of Gallinelli when she tried to escape, blocking her path and

ordering her at gunpoint to stop. At the same time, the defendant

kept his gun pointed directly at DiBiasio's face and chest, at

close range, commanding him to look straight ahead into the gun and

not to move. Given the intense, one-on-one nature of the armed

robbery, the close proximity of the armed robbers to the victims,

and the posturing of the defendant and co-conspirator when one of

the victims tried to escape, there is no doubt that the victims

were "physically restrained" for purposes of the guidelines

enhancement.

ii. Multiple weapons enhancement

The PSR recommended a three-level enhancement under

U.S.S.G. § 2K2.1(b)(1)(C) because the offense involved a total of

eight guns: the six guns stolen and the two guns that the defendant

and his co-conspirator brandished during the robbery.10 The

10
The 1998 Sentencing Guidelines Manual, used in the PSR, provided
for a three-level enhancement "[i]f the offense involved [8-12]
firearms." U.S.S.G. § 2K2.1(b)(1)(C) (1998). Under the current
guidelines, the unlawful receipt, possession, or transportation of
a firearm yields a four-level enhancement if the offense involved

-38-
defendant objected to the proposed enhancement on the basis that

"there was no evidence that the 2 items the robbers possessed

during the robbery were in fact firearms under application note 1

of 2K2.1." The district court rejected this reasoning, recounting

the victims' testimony at trial regarding the weapons used in the

robbery. On appeal, the defendant abandons his previous argument

and raises a different claim, arguing that there was insufficient

proof that the firearm used in the robbery was "unlawfully

possessed" for the purposes of U.S.S.G. § 2K2.1(b)(1)(C).11

An application note to U.S.S.G. § 2K2.1(b)(1)(C) explains

that "[f]or purposes of calculating the number of firearms under

subsection (b)(1), count only those firearms that were unlawfully

sought to be obtained, unlawfully possessed, or unlawfully

distributed . . . ." The defendant argues that since he had no

prior felony convictions, he did not unlawfully possess the gun

under 18 U.S.C. § 922(g)(1) (prohibiting individuals with felony

convictions from possessing a firearm). However, as the government

points out, the defendant was prohibited from possessing a firearm

under 18 U.S.C. § 922(g)(1) (prohibiting a "fugitive from justice"

from possessing a firearm) and § 922(g)(3) (prohibiting an

8-24 firearms. U.S.S.G. § 2K2.1(b)(1)(B)(2006).
11
The defendant argues that this new argument was preserved by his
original objection. Because that objection was on different
grounds, however, we deem the defendant's present argument of
error, raised for the first time on appeal, as unpreserved. See
United States v. Figuereo, 404 F.3d 537, 540 & n.3 (1st Cir. 2005).

-39-
"unlawful user of or addicted to any controlled substance" from

possessing a firearm). The defendant offers no argument as to why

his possession of a firearm would not be unlawful under these

provisions. The defendant was a fugitive from justice and,

according to the PSR, he admitted to regularly using marijuana. We

therefore find no plain error in the application of this sentencing

enhancement.

b. Grounds for upward departure

In this case, the district court's upward departure under

the advisory guidelines involved a five-level increase in the

adjusted offense level and an increase in the criminal history

category from I to III. See United States v. Figaro, 935 F.2d 4,

8-9 (1st Cir. 1991) (noting that, "in an appropriate case," an

overall departure under the guidelines may be based on an increase

in the offense level and in the criminal history category). The

defendant argues that the district court erred in applying this

upward departure because none of the six grounds for departure were

applicable in his case. We conclude that two of the grounds relied

upon by the district court were applied appropriately and four were

not.

-40-
 i. Valid grounds for departure

(1) Weapons and dangerous instrumentalities

Under U.S.S.G. § 5K2.6,

[i]f a weapon or dangerous instrumentality was
used or possessed in the commission of the
offense the court may increase the sentence
above the authorized guideline range. The
extent of the increase ordinarily should
depend on the dangerousness of the weapon, the
manner in which it was used, and the extent to
which its use endangered others. The discharge
of a firearm might warrant a substantial
sentence increase.

The district court applied this upward departure, noting that "[i]n

this case, high-powered weaponry was used, a pre-banned semi-

automatic or machine-gun-like weapon [was] pointed directly into

the face of the victims."

The defendant argues that the application of this upward

departure amounts to impermissible double-counting because the

dangerous nature of the TEC-9 firearm used in the robbery was

already accounted for in the calculation of the base offense level

under U.S.S.G. § 2K2.1(a)(4)(B) (unlawful possession of

semiautomatic weapon). We reject this argument. "Sentencing

factors do not come in hermetically sealed packages, neatly wrapped

and segregated one from another. Rather, several factors may draw

upon the same nucleus of operative facts while nonetheless

responding to discrete concerns. Consequently, a degree of

relatedness, without more, does not comprise double counting."

-41-
United States v. Lilly 13 F.3d 15, 19 (1st Cir. 1994). While §

2K2.1 accounts for Wallace's unlawful possession of the TEC-9, §

5K2.6 accounts for the fact that Wallace used the weapon in a way

that endangered his victims. See United States v. Hardy 99 F.3d

1242, 1249-50 (1st Cir. 1996) ("[T]o the extent a sentencing court

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

actual manner of its use, increased the danger to 'unusual' levels,

an upward departure under U.S.S.G. § 5K2.6 would be permissible.").

As the district court noted during sentencing, the

defendant pointed a semi-automatic weapon directly into the face of

DiBiasio at a close range while his co-conspirator pointed his

weapon at Gallinelli. This action presents a danger not accounted

for by the defendant's possession of the TEC-9 alone. Thus, on the

facts here, the harm underlying the calculation of the base offense

level under § 2K2.1 and the harm underlying the application of the

upward departure under § 5K2.6 are different. We therefore

conclude that the defendant's use of weapons and dangerous

instrumentalities, as the district court found, was a valid ground

for departure in this case.

(2) Disruption of a government function

Under U.S.S.G. § 5K2.7, "[i]f the defendant's conduct

resulted in a significant disruption of a governmental function,

the court may increase the sentence above the authorized guideline

range to reflect the nature and extent of the disruption and the

-42-
importance of the governmental function affected." In applying

this ground for departure, the district court made three findings

related to the consequences of Wallace's evasion of arrest and

prosecution in this case. First, it noted that Wallace's flight

from justice "caused the marshal service to engage in substantial

investigative and law enforcement activity in a four-year long

search for him." Second, the court stated that the defendant's

actions "cause[d] there to be two trials of this matter instead of

one. He would have likely been tried with his co-defendant, his

brother . . ." Third, and relatedly, Wallace's actions "forced

victims in this case to testify a second time and to relive the

terror that they were subjected to a second time."

The defendant argues that there "was no indication that

the government expended significant resources in searching for the

defendant. Nor was there a demonstration that a joint trial would

have taken place or evidence that the costs of a separate trial for

defendant were such as to warrant" the upward departure. We reject

the defendant's argument that the district court's findings were

insufficient to support the application of the departure in this

case. As the district court noted, the defendant had evaded arrest

for four years, leading to a trial that took place years after the

trial of his co-conspirator. We have previously noted that, in a

multi-defendant case, a defendant's flight from justice can disrupt

government functions:

-43-
 In addition to the possible disappearance of
witnesses and the loss of evidence, the
defendant may obtain a distinct advantage over
the government by absconding in a multi-
defendant case. If the government proceeds
against the co-defendants before the defendant
is found, the defendant can assess the
strengths and weaknesses of the government's
case before returning for his own trial.
Moreover, the defendant could create
additional impediments to the government's
ability to prosecute the co-defendants. The
co-defendants could attempt to shift the blame
from themselves to the absent defendant.
Further, the defendant may place additional
burdens on the court because, in many cases,
the court will either have to conduct multiple
trials unnecessarily, or wait an indeterminate
length for the capture of the defendant to
conduct a single trial.

United States v. Moreno, 367 F.3d 1, 4 (1st Cir. 2004) (internal

citations omitted). In addition, we have noted that a long absence

can provide further support for a § 5K2.7 departure:

[T]he length of the absence can be relevant to
determining the extent to which the
defendant's conduct disrupted the judicial
process. The longer the absence, the more
likely it is that the government will have
difficulty prosecuting the defendant on his
return. In addition by absenting himself, the
defendant (if convicted) delays the day on
which he will ultimately face punishment.

Id. At the very least, the government in this case had no choice

but to conduct another trial, preparing witnesses it had already

prepared years earlier at Nickoyan's trial, in order to obtain a

conviction of the defendant. Thus, a factual basis for this

departure exists in the record. Moreover, there is no concern that

applying a departure here leads to any impermissible double-

-44-
counting. The adjusted offense level does not otherwise account

for Wallace's flight from justice. Cf. Moreno 367 F.3d at 3-5

(noting that grounds for departure under § 5K2.7 were already

accounted for in offense level for defendant's bail jumping). The

defendant does not convince us that this ground for departure is

invalid.

ii. Invalid grounds for departure

(1) Obstruction of justice

The PSR recommended a two-level enhancement for

obstruction of justice based on the defendant's perjury at trial.

During sentencing, the district court explained that an upward

departure beyond the two-level enhancement was appropriate:

That enhancement takes into account only the
perjurious testimony of the defendant at
trial. It does not account for the fact that
he was a fugitive from justice for over four
years. It does not account for the fact that
the defendant provided false information to
the Court . . . . In this case, the defendant
has not only perjured himself at trial but
provided false information to the Court and
provided false information to the Office of
Probation. And as I said, in addition to
that, he was a fugitive from justice. So in
my view, the obstruction enhancement contained
in the presentence report does not adequately
reflect the degree and number of occurrences
of obstructed behavior engaged in by this
defendant so an enhancement beyond the two
points contained in the presentence report
would be appropriate.

The defendant argues that an upward departure from the two-level

obstruction of justice enhancement was not appropriate because (a)

-45-
flight from arrest without engaging in reckless endangerment is

classified in the guidelines as the type of conduct not ordinarily

warranting an obstruction of justice adjustment and (b) the court

offered no factual predicate for its conclusions that the defendant

provided false information to the court and the probation office

beyond the testimony viewed as perjurious.12

The guidelines provide for a two-level enhancement for

obstruction of justice if

the defendant willfully obstructed or impeded,
or attempted to obstruct or impede, the
administration of justice during the course of
the investigation, prosecution, or sentencing
of the instant offense of conviction, and (B)
the obstructive conduct related to (i) the
defendant's offense of conviction and any
relevant conduct; or (ii) a closely related
offense.

U.S.S.G. § 3C1.1. The advisory guidelines further permit a

district court to depart upwardly for a factor already taken into

consideration in a specific enhancement under certain

circumstances:

A departure may be warranted in an exceptional
case, even though the circumstance that forms
the basis for the departure is taken into
consideration in determining the guideline
range, if the court determines that such
circumstance is present in the offense to a
degree substantially in excess of . . . that

12
In his appeal, the defendant does not challenge the district
court's application of the two-level enhancement for obstruction of
justice as recommended by the PSR. His challenge is limited to the
court's upward departure from that two-level enhancement.

-46-
 which ordinarily is involved in that kind of
offense.

U.S.S.G. § 5K2.0(a)(3). In this case, the court identified two

main reasons for upwardly departing on grounds of obstruction of

justice: (1) the defendant's flight from justice and (2) his

extensive perjury, beyond perjury at trial.

We agree with the defendant that it was not appropriate

for the court to justify its departure from the two-level

obstruction of justice enhancement based on the defendant's flight

from justice. The commentary to the obstruction of justice

enhancements lists "avoiding or fleeing from arrest" (where

reckless endangerment was not involved) as a type of conduct which

"ordinarily do[es] not warrant application of this adjustment but

may warrant a greater sentence within the otherwise applicable

guideline range or affect the determination of whether other

guideline adjustments [e.g., Acceptance of Responsibility] apply."

U.S.S.G. § 3C1.1, cmt. n. 5(d) (emphasis added); see also United

States v. Gibson, 409 F.3d 325, 341 (6th Cir. 2005) (noting

limitations on applicability of obstruction of justice

enhancement). The court should have taken this commentary into

account when considering whether to apply this departure provision.

Cf. United States v. Zapete-Garcia, 447 F.3d 57, 60-61 (1st Cir.

2006) (noting that, although the guidelines are not binding, "[a]

policy statement [in the guidelines] . . . must be duly considered

by the district judge").

-47-
 We also agree with the defendant that there was not an

adequate factual predicate, as far as we can discern from the

record, for the court's finding at sentencing that the defendant

provided false information to the court and the probation office

beyond the perjurious testimony he provided at trial. Such a

finding, if factually supported, would have been relevant to the

obstruction of justice analysis, and thus whether an upward

departure was justified. See U.S.S.G. § 3C1.1, cmt. n.4 (b), (f),

& (h) (citing, as examples of conduct typically considered to be

obstruction of justice, "providing materially false information to

a judge or magistrate" and "providing materially false information

to a probation officer in respect to a presentence or other

investigation for the court"). However, the district court never

explained what materially false information Wallace provided to the

probation office or to the court beyond his trial testimony, and we

find nothing apparent from the PSR or other parts of the record in

this case. Without any explanation from the district court, we

conclude that an upward departure from the two-level enhancement

already applicable due to Wallace's perjury at trial was not

justified.

(2) Extreme psychological injury

Under U.S.S.G. § 5K2.3,

[i]f a victim or victims suffered
psychological injury much more serious than
that normally resulting from commission of the
offense, the court may increase the sentence

-48-
 above the authorized guideline range. The
extent of the increase ordinarily should
depend on the severity of the psychological
injury and the extent to which the injury was
intended or knowingly risked.

Normally, psychological injury would be
sufficiently severe to warrant application of
this adjustment only when there is a
substantial impairment of the intellectual,
psychological, emotional, or behavioral
functioning of a victim, when the impairment
is likely to be of an extended or continuous
duration, and when the impairment manifests
itself by physical or psychological symptoms
or by changes in behavior patterns. The court
should consider the extent to which such harm
was likely, given the nature of the
defendant's conduct.

The district court described how "the defendants, particularly this

defendant, terrorized their victims." Reciting at length testimony

from DiBiasio and Gallinelli, the district noted that the victims

thought they were going to die and never see their families again.

As DiBiasio testified, he had to stare into the gun pointed at his

head, thinking that he would be killed because he could identify

the defendant, face unhidden, pointing the gun at him.

The defendant argues that, while the victims were no

doubt terrified at the time of the robbery, there was no evidence

that they suffered the kind of "substantial impairment" that

ordinarily justifies the application of this departure provision.

We agree with the defendant that the district court's finding here

was clearly erroneous. The district court pointed to no evidence

of the victims' "physical or psychological symptoms or [] changes

-49-
in behavior patterns" or the "extended or continuous duration" of

any such psychological injuries. U.S.S.G. § 5K2.3. There was some

testimony at trial regarding the understandable trauma experienced

by the victims, but the vast majority of that testimony relates to

how the victims felt at the time of the robbery. The only

statement regarding the long-term after-effects of robbery was made

by DiBiasio, when he stated that he still "dream[s] about [the

defendant's] face." Other references in the testimony were made to

the fear and emotional state of Gallinelli and the store clerk who

hid in the basement, but those statements apparently refer to the

trauma they experienced at the time of, or in the days immediately

after, the robbery.

We do not in any way minimize the terror that the victims

felt or the real possibility that this traumatic event might have

longstanding psychological consequences for them. However, to

support the departure ground invoked by the court, there must be

evidence of such consequences in the record. The witnesses did not

testify about their sustained psychological injury at trial. No

medical or psychiatric records were presented. According to the

PSR, no victim impact statement appears to have been submitted by

any of the victims.

Robbery has a relatively high base offense level,

reflecting the serious nature of the offense. See U.S.S.G.

§ 2B3.1, cmt. (background). While there is evidence that this

-50-
armed robbery was more terrifying and more personal than typical

armed robberies, there is insufficient evidence of sustained

psychological injuries suffered by the victims. Without that

evidence, there is no basis for concluding these victims' injuries,

whatever they may be, are significantly worse than the injuries

suffered by victims in the majority of armed robbery cases. Cf.

United States v. Pelkey 29 F.3d 11, 16 (1st Cir. 1994) (holding

that fraud victims' testimony about their "feelings of lack of

trust, frustration, shock, and depression" was "altogether

insufficient to permit departure for psychological injury" because

"the injuries these people suffered were no worse than that of many

fraud victims"). Given the lack of evidence, this was an invalid

ground for departure in this case.

(3) Facilitation of criminal purpose

Under U.S.S.G. § 5K2.9, "[i]f the defendant committed the

offense in order to facilitate or conceal the commission of another

offense, the court may increase the sentence above the guideline

range to reflect the actual seriousness of the defendant's

conduct." In applying this departure provision, the court noted

two factors: (1) that "there is at least some passing reference to

the involvement of the defendant and his brother with another

brother and the involvement in other criminal activity" and (2)

that "there can be no other purpose for stealing an arsenal of

weapons than the facilitation of additional criminal activity. . .

-51-
. [s]o the stealing of an arsenal of weapons is by its nature

designed to facilitate the commission of other crimes."

The defendant argues that there is no factual basis

supporting the application of this departure provision here and

that the district court erred by relying on speculation that this

crime was designed to facilitate some other crimes. We agree. The

focus of a criminal facilitation departure from a guidelines range

is on the specific criminal activity being facilitated or concealed

and the nexus between that criminal activity and the offense

charged. See United States v. Hawkins, 901 F.2d 863, 866 (10th

Cir. 1990). While "the sentencing guidelines permit the court to

consider uncharged conduct related to the offense of conviction" in

applying this departure provision, Figaro, 935 F.2d at 7, the

specific criminal conduct relied upon here is unclear. A "passing

reference" at trial to the fact that one of the stolen guns was

found in the apartment of the defendant's brother Kamal does not

establish that some other type of criminal activity was being

facilitated or concealed by the robbery. And we cannot conclude

that, in every conceivable factual scenario, the theft of multiple

weapons is always designed to facilitate some other crime. Indeed,

such a finding would be problematic here because the adjusted

offense level for the underlying crime already accounts for the

fact that a large number of guns were stolen. See U.S.S.G.

§ 2K2.1(b)(1)(C) (multiple weapons enhancement).

-52-
 The district court needed to make a specific factual

finding of the criminal conduct being facilitated in this case, and

it did not do so. Without that finding, we cannot conclude that a

proper nexus between the offense here and some other criminal

conduct exists. See United States v. Ogbeide, 911 F.2d 793, 796

(D.C. Cir. 1990) (concluding that, in absence of an explanation of

what "other offense" the sentencing court had in mind in upwardly

departing under § 5K2.9, the sentencing court may have improperly

relied on conduct already accounted for in the guidelines); see

also Hawkins, 901 F.2d at 866 ("Without a demonstration of [] a

nexus [between the charged offense and the other criminal conduct],

there is no factual support for an upward departure under

§ 5K2.9."). Thus, this was an invalid ground for departure in

this case.

(4) Criminal History Category

Under U.S.S.G. § 4A1.3(a), "[i]f reliable information

indicates that the defendant's criminal history category

substantially under-represents the seriousness of the defendant's

criminal history or the likelihood that the defendant will commit

other crimes, an upward departure may be warranted." The type of

information that may support such an upward departure is "whether

a defendant was pending trial or sentencing on another charge at

the time of the instant offense." U.S.S.G. § 4A1.3(2)(D); see also

id., cmt., n.2(A)(iv) ("An upward departure from the defendant's

-53-
criminal history category may be warranted based on . . .

[c]ommission of the instant offense while on bail or pretrial

release for another serious offense."). When a departure is

appropriate, the sentencing court "shall determine the extent of a

departure . . . by using, as a reference, the criminal history

category applicable to defendants whose criminal history or

likelihood to recidivate most closely resembles that of the

defendant's." U.S.S.G. § 4A1.3(4)(A).

In this case, the PSR assigned zero criminal history

points to Wallace because he had no prior criminal convictions,

resulting in a criminal history category of I (applicable to

defendants with 0-1 criminal history points). In upwardly

departing from a criminal history category of I to a category of

III (applicable to defendants with 4-6 criminal history points),

the district court relied on the fact that the defendant committed

the robbery while under indictment for murder. The defendant

argues that the district court made no findings as to whether he

was aware of the indictment at the time of the robbery, and thus

there was no basis to depart upwardly. The defendant further

argues that, assuming that the commission of a crime while under

indictment for another crime was a proper basis for an upward

departure in his case, remand is warranted because the district

court offered no explanation for its conclusion that the facts in

his case justified an upward departure to a criminal history

-54-
category of III, effectively adding 4-6 points to his criminal

history points.

We have not previously addressed whether the commission

of a crime while under indictment for another serious crime is an

appropriate ground for upwardly departing from a defendant's

criminal history category. If the defendant knew that he was

indicted for a certain crime, his commission of another offense

while under that indictment is arguably indicative of his

"likelihood to commit other crimes." U.S.S.G. § 4A1.3(a).13 This

situation is akin to the example listed in the guidelines of

committing an "offense while on bail or pretrial release for

another serious offense." U.S.S.G. § 4A1.3(2)(D), cmt., n.2(A)(iv).

In both scenarios, no adjudication of guilt has occurred, but the

defendant's commission of a crime during a period in which one

would expect a careful abidance to the law arguably demonstrates

his or her propensity for criminal behavior, at least for the

purposes of sentencing. In this case, the defendant is hard

13
The government's argument that the indictment in and of itself
is evidence of the defendant's criminal behavior is less
persuasive. Under the guidelines, a prior arrest record in and of
itself may not be considered for the purposes of an upward
departure on the criminal history category. See U.S.S.G.
§ 4A1.3(3); see also Zapete-Garcia, 447 F.3d at 61 (noting that the
guidelines "recognize[] th[e] limitation on the value of an arrest
as information about a defendant's criminal propensity,
highlighting the important distinction between direct evidence of
past criminal behavior and mere arrests that may or may not have
been the result of wrongdoing"). An indictment, like an arrest,
would also not be direct and reliable evidence of past criminal
behavior.

-55-
pressed to argue that he did not know that he was under indictment

for murder at the time of the robbery, given his numerous arguments

on appeal that his flight and use of aliases during that period of

time might have been due to evading the murder charge.

It is a more difficult question whether the defendant's

commission of this robbery while under indictment is a valid basis

for finding that his criminal history category, or even the next

higher criminal history category, "substantially under-represents

the seriousness of the defendant's criminal history or the

likelihood that the defendant will commit other crimes." U.S.S.G.

§ 4A1.3. Assuming that the facts do support an upward departure in

criminal history category in general, we note that the district

court here departed to a criminal history category of III –- a

departure that, with a 34 adjusted offense level, shifted the

guidelines range for Counts I and II from 155-188 months to 188-235

months. The court did not explain why such an increase was

appropriate in this case. The upward departure essentially added

4-6 points to Wallace's criminal history points. Yet, under the

guidelines, if a defendant had committed a robbery while under "any

criminal justice sentence, including probation, parole, supervised

release, imprisonment, work release, or escape status," only 2

points would have been added to his or her criminal history points.

See U.S.S.G. § 4A1.1(d); see also U.S.S.G. § 4A1.3(4)(A)

(explaining that the sentencing court "shall determine the extent

-56-
of a departure . . . by using, as a reference, the criminal history

category applicable to defendants whose criminal history or

likelihood to recidivate most closely resembles that of the

defendant's"). Without any explanation of why the court chose a

departure of this extent, we cannot conclude that it was justified

on the record here. As we have explained,

[a]lthough we accord substantial leeway to a
sentencing court's determination of the
appropriate degree of departure, this freedom
does not relieve [it] from explaining its
ultimate decision of how far to depart.
Merely explaining why a departure was made
does not fulfill the separate requirement of
stating the reasons for imposing the
particular sentence.

United States v. Pratt, 73 F.3d 450, 453-54 (1st Cir. 1996)

(internal quotation marks and citations omitted) (remanding for

further explanation why upward departure from Criminal History

Category I to III was justified). Thus, even assuming that some

departure in criminal history category is justified here, "we are

unable to evaluate responsibly the reasonableness of the extent of

the court's departure absent explication, which we observe might

include at least an indication of why a one category increase is

inadequate" in this case. Id. at 454.

iii. Whether remand for resentencing is merited based on
errors in departure grounds

After carefully reviewing the district court's

application of the departure provisions in the advisory guidelines

-57-
in this case, we have concluded that it has articulated both valid

and invalid grounds for its departure from an offense level 29,

Criminal History Category I (resulting in an advisory guidelines

range of 87-108 months), to an offense level 34, Criminal History

Category III (resulting in an advisory guidelines range of 188-235

months). Specifically, we conclude that the district court validly

relied on the use of weapons and dangerous instrumentalities and

the disruption of a government function to upwardly depart from the

initial guidelines range. However, we also conclude that the court

improperly relied on grounds of obstruction of justice, extreme

psychological injury, and facilitation of a criminal purpose to

increase the offense level, and did not adequately explain its

reasons for upwardly departing on the criminal history category

from I to III.

In this case, we may only remand if the district court's

decision to depart upwardly based on these valid and invalid

grounds was plain error.14 We have already identified the errors

14
The defendant did not object to the district court's upward
departure at sentencing. However, we note that the district court
did not notify the parties of its intention to depart and the
grounds for the departure. Under Fed. R. Crim. P. 32(h),

[b]efore the court may depart from the
applicable sentencing range on a ground not
identified for departure either in the
presentence report or in a party's prehearing
submission, the court must give the parties
reasonable notice that it is contemplating
such a departure. The notice must specify any
ground on which the court is contemplating a

-58-
in the district court's departure analysis. The question is

whether the errors are plain, affected Wallace's substantial

rights, and "seriously impaired the fairness, integrity, or public

reputation of judicial proceedings." Medina-Martinez, 396 F.3d at

departure.

Thus, there is cause to question whether it is appropriate to apply
plain error review of the district court's upward departure given
the lack of notice. See id.; see also United States v. Cortes-
Claudio, 312 F.3d 17, 24 (1st Cir. 2002) ("Generally, when a party
fails to contemporaneously object to an error in sentencing we
review only for plain error. We have recognized, however, in the
context of sentencing, that a post-sentence objection is not
necessarily required to preserve the issue for appeal if the
defendant could not reasonably have anticipated the issue would
arise until after the court ruled." (internal citations omitted)).
The defendant here had no reason to expect that the district court
would rely on departure provisions not listed in the PSR, and the
government made no arguments that additional guidelines provisions
applied. On the contrary, the government attorney explicitly
stated during sentencing that "the guidelines [as the PSR
calculated the range] themselves account for much of the
reprehensible nature of this defendant's conduct."
However, the defendant did not raise the issue of notice
on appeal, and we have not previously decided whether and to what
extent Fed. R. Crim. P. 32(h) applies in post-Booker cases. See
U.S. v. Mateo, No. 05-1805, 2006 U.S. App. LEXIS 11396, *2-5 (1st.
Cir. May 5, 2006) (unpublished) (discussing without deciding the
application of Fed. R. Crim. P. 32(h) in post-Booker cases). We do
not have to decide that issue here because, even under plain error
review, we conclude that a remand is necessary. However, as this
case illustrates, it is clearly the better practice -- whether or
not the legal requirement survives Booker -- for the court to
provide notice to defendants when relying on departure provisions
in the advisory guidelines not previously identified in the PSR or
in a party's pre-hearing submission. We have found that several of
the grounds for an upward departure were inappropriately applied
here because of the lack of evidence in the record supporting them.
With notice from the court that such grounds for departure were to
be considered, that problem might have been avoided.

-59-
8. The defendant, of course, has the burden of establishing plain

error. Id.

First, we conclude that the errors are plain. It is

clear and obvious that a sentencing court must have sufficient

evidence to support the application of a departure provision in the

guidelines and must adequately explain its departure. See United

States v. Cadavid 192 F.3d 230, 238 (1st Cir. 1999) (noting the

rule that grounds for departure must have adequate factual support

in the record); Pratt, 73 F.3d at 453-54 (noting the rule that a

sentencing court must adequately explain its decision to depart and

its reasons for the extent of the departure). Yet here the

application of three of the six grounds of departure lacked factual

support in the record, and the departure in a fourth ground, based

on the defendant's criminal history, was not adequately explained.

Second, we find that the errors affected Wallace's

substantial rights. We have previously explicated the test for

determining whether a departure based on both valid and invalid

grounds has prejudiced the defendant:

[A] departure which rests on a combination of
valid and invalid grounds may be affirmed so
long as (1) the direction and degree of the
departure are reasonable in relation to the
remaining (valid) ground, (2) excision of the
improper ground does not obscure or defeat the
expressed reasoning of the district court, and
(3) the reviewing court is left, on the record
as a whole, with the definite and firm
conviction that removal of the inappropriate
ground would not be likely to alter the

-60-
 district court's view of the sentence
rightfully to be imposed.

United States v. Sanchez, 354 F.3d 70, 79 (1st Cir. 2004) (internal

quotation marks and citations omitted). Following this analysis,

we cannot conclude that the direction and degree of the departure

-- an additional nine years, double the sentence recommended for

Counts I and II in the PSR -- is reasonable in relation to the two

remaining valid grounds for departure in this case. With four of

the six grounds for departure excised, it seems self-evident that

the expressed reasoning of the district court has been obscured.

While we recognize the district court's careful explanation of why

a high sentence was generally justified in this case, we believe

that the court –- now knowing that four of the grounds upon which

it expressly relied in determining the specific upward departure

were invalid –- might (although by no means must) calculate a

sentence upon remand different than the precise sentence it chose

through its initial, erroneous departure analysis. We therefore

lack the "definite and firm conviction" that removal of the

inappropriate grounds would not be likely to alter the district

court's view of the sentence rightfully to be imposed. See United

States v. Diaz, 285 F.3d 92, 102 (1st Cir. 2002)(remanding where

"two of three provisions on which the court based an upward

departure were utilized improperly"); United States v. Diaz-

Bastardo, 929 F.2d 798, 800 (1st Cir. 1991) (remanding where one of

-61-
the two grounds for departure was invalid, noting that, "[o]n this

scumbled record, we do not believe that we should attempt to review

the propriety and extent of a one-legged departure"). Wallace thus

has established that the errors in the departure analysis affected

his substantial rights.

Finally, we conclude that the last prong of the plain

error test has been met as well. Having identified several legal

errors, which were the pillars for a substantial increase in the

sentence imposed, it would certainly "impair[] the fairness,

integrity, or public reputation of the judicial proceedings" if we

ignored them despite the absence of a firm conviction that the

removal of the inappropriate grounds might not alter the sentence.

Medina-Martinez, 396 F.3d at 8. The overall length of the sentence

at stake, the difference between the sentence imposed and the one

proposed in the PSR and by the government, and the fact that the

defendant was not notified that the court was considering an upward

departure on the grounds invoked by the court, see supra text at 58

n.14, provide further support for our conclusion.

Thus, we remand for resentencing. Because we remand

based on errors in the application of the advisory guidelines, we

do not reach the defendant's other argument that the sentence as a

whole was substantially longer than necessary to meet the factors

underlying 18 U.S.C. § 3553(a), hence unreasonable. We express no

views as to the appropriate sentence on remand.

-62-
 III.

The defendant's conviction is affirmed, the sentence is

vacated, and the case is remanded for resentencing.

So ordered.

-63-