United States v. Bogdan

United States Court of Appeals
For the First Circuit

No. 01-1889

UNITED STATES OF AMERICA,

Appellant,

v.

JOHN M. BOGDAN,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Torruella, Circuit Judge,

Stahl, Senior Circuit Judge,

and Lipez, Circuit Judge.

Carmen M. Ortiz, Assistant U.S. Attorney, with whom Michael J.
Sullivan, United States Attorney, were on brief, for appellant.
R.J. Cinquegrana, with whom Thomas M. Griffin and Choate, Hall &
Stewart were on brief, for appellee.

April 2, 2002
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 TORRUELLA, Circuit Judge. Defendant-appellee John M. Bogdan

pled guilty to a two-count information charging him with mail fraud in

violation of 18 U.S.C. § 1341. The United States appeals the sentence

imposed on Bogdan, arguing that the district court erred in departing

downward from the applicable sentencing guideline range. Because we

find that the district court abused its discretion in granting Bogdan's

request for a downward departure, we reverse and remand this case for

action consistent with this opinion.

BACKGROUND

From 1997 through 1999, Bogdan, working as the chief

financial officer at ON Technology Corporation, embezzled more than

$320,000 from his employer and used the mails in furtherance of his

scheme to defraud. On December 4, 2000, pursuant to a plea agreement,

Bogdan pled guilty to two counts of mail fraud.

The plea agreement set Bogdan’s total offense level under the

Sentencing Guidelines at fifteen, thereby resulting in a guideline

sentencing range of eighteen to twenty-four months' imprisonment. The

agreement, however, permitted appellee to move for a downward departure

on the grounds of aberrant behavior. The parties recognized that there

was "no other basis for departure."

At the sentencing hearing, the district court adopted the

parties’ predetermined guideline sentencing range but rejected Bogdan’s

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request for a downward departure based on aberrant behavior. Instead,

the district court found alternative grounds for departing:

I have taken into account the excellent way that
you have been a father to your children, how you
have tried to make amends to your wife, the
introspection you have shown, the appreciation
you have shown of the criminality of your
conduct. . . . In my considered judgment, you,
you, John Bogdan, are not within the heartland of
offenders that the sentencing guidelines are
designed for. That gives me the right to depart.

On this basis, the district court departed from the applicable

guideline sentencing range, ordering appellee to a committed sentence

of one year and one day.1 The government timely filed the instant

appeal.

STANDARD OF REVIEW

We review district court departures under the Sentencing

Guidelines for abuse of discretion. See Koon v. United States, 518

U.S. 81, 96-100 (1996). This analysis is divided into three parts:

First, we determine as a theoretical matter
whether the stated ground for departure is
permissible under the guidelines. If the ground
is theoretically appropriate, we next examine
whether it finds adequate factual support in the
record. If so, we must probe the degree of the
departure in order to verify its reasonableness.

1 In addition, the district court sentenced appellee to two years of
supervised release after his confinement and ordered him to pay
$324,214.67 in restitution.

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United States v. Dethlefs, 123 F.3d 39, 43-44 (1st Cir. 1997) (internal

citations omitted).2 In employing this analysis, we recognize that "[a]

district court's decision to depart from the Guidelines . . . will in

most cases be due substantial deference." Koon, 518 U.S. at 98.

DISCUSSION

The United States Sentencing Guidelines establish ranges for

the criminal sentences of federal offenders. District courts must

impose sentences within the applicable ranges set forth in the

Guidelines. See 18 U.S.C. § 3553(a). In limited circumstances,

however, a district court may depart from the applicable guideline

range if "the court finds that there exists an aggravating or

mitigating circumstance of a kind, or to a degree, not adequately taken

into consideration by the Sentencing Commission in formulating the

guidelines . . . ." 18 U.S.C. § 3553(b). Thus, not every aggravating

or mitigating circumstance will warrant departure; the circumstance

"must render the case atypical and take it out of the 'heartland' for

which the applicable guideline was designed." United States v.

Carrión-Cruz, 92 F.3d 5, 6 (1st Cir. 1996).

The Sentencing Guidelines give courts considerable guidance

as to what factors are likely, or not, to make a case atypical. In

general, these factors fall into four categories. Encouraged factors

2 Because the government challenges the appropriateness rather than the
degree of the district court's departure, our analysis does not include
the third inquiry.

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are those "the [Sentencing] Commission has not been able to take into

account fully in formulating the guidelines." U.S.S.G. § 5K2.0. Thus,

when encouraged factors are present, they may take a particular case

outside the "heartland" of the applicable guideline, thereby warranting

a departure. Conversely, discouraged factors are those "not ordinarily

relevant to the determination of whether a sentence should be outside

the applicable guideline range." U.S.S.G. ch. 5, pt. H, introductory

cmt. "The Sentencing Commission does not view discouraged factors as

necessarily inappropriate bases for departure but says they should be

relied upon only in exceptional cases." United States v. Pereira, 272

F.3d 76, 80 (1st Cir. 2001) (internal quotation marks omitted).

The third category includes those sentencing factors upon

which a court can rely to depart but which, unlike the first two

categories, are not specifically enumerated in the Guidelines. "If a

factor is unmentioned in the Guidelines, the court must, after

considering the structure and theory of both relevant guidelines and

the Guidelines taken as a whole, decide whether it is sufficient to

take the case out of the Guideline's heartland." Koon, 518 U.S. at 96

(internal quotation marks and citations omitted).

Finally, those factors that are explicitly or implicitly

proscribed by the Sentencing Guidelines as bases for departure

constitute the last category of sentencing factors. They include

"forbidden factors, factors adequately considered by the Commission,

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factors that lack relevance, and factors that offend the framework and

purpose of the guidelines." United States v. Martin, 221 F.3d 52, 57

(1st Cir. 2000).

In the instant case, the district court relied on a

combination of factors to justify its departure from the applicable

sentencing range, including Bogdan's role as a father; his effort to

make amends with his ex-wife; his introspection; and his appreciation

for the wrongfulness of his conduct.3 Though this unique amalgamation

of factors is unmentioned in the Guidelines, all of the individual

factors cited by the court have been taken into account by the

Sentencing Commission.

Bogdan's role as a father and his effort to make amends with

his wife are considerations that clearly fall within the category of

family ties and responsibilities, a discouraged factor under the

Guidelines. See U.S.S.G. § 5H1.6; see also United States v. Rushby,

936 F.2d 41, 42-43 (1st Cir. 1991) (analyzing the defendant's marital

status and role as a father under the Guidelines' family ties and

3 In addition, the government argues that the district court departed
based on a proscribed factor -- that is, the disparity between Bogdan's
proposed sentence of 18 months and the national median sentence of 12
months for defendants convicted of fraud. See Martin, 221 F.3d at 57
(noting that "the fact that the national median for a broadly stated
offense type may be above or below a particular defendant's [sentencing
range] cannot be used to justify a sentencing departure"). Though the
district court did express some concern over this disparity, it is not
clear from the record whether this issue influenced the court's
decision to depart. We, therefore, confine our analysis to the
justifications the district court explicitly relied upon for departing.

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responsibilities category); United States v. Carr, 932 F.2d 67, 72 (1st

Cir. 1991) (considering the defendant's role as a father under the

Guidelines' family ties and responsibilities category).

Considerations like Bogdan's introspection and his

appreciation for the criminality of his conduct have also been taken

into account by the Sentencing Commission. Specifically, the

Guidelines give district courts the discretion to grant acceptance-of-

responsibility credit to defendants who demonstrate extraordinary

presentence rehabilitation. See U.S.S.G. § 3E1.1; United States v.

Craven, 239 F.3d 91, 99 (1st Cir. 2001) (noting that "presentence

rehabilitation . . . can be factored adequately into the sentencing

equation by an acceptance-of-responsibility credit," and a change in

attitude is the touchstone of rehabilitation); United States v. Sklar,

920 F.2d 107, 115-16 (1st Cir. 1990) (remarking that a defendant's

sincere desire to change his life is factored into the acceptance-of-

responsibility credit).4

4 An acceptance-of-responsibility credit is part of the regular
sentencing calculation and is thus considered before determining
whether a departure is warranted. See U.S.S.G. § 3E1.1. When a court
decides that the defendant's presentence rehabilitation is so
exceptional that it cannot be adequately factored by an acceptance-of-
responsibility credit, the court may depart on those grounds. See
Craven, 239 F.3d at 99. A departure based on grounds that have already
been specifically considered by the Guidelines, however, will be
treated as if the departure were based on a discouraged factor. See
Koon, 518 U.S. at 96.

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 Because the factors upon which the district court relied to

depart are discouraged or have already been taken into account by the

Guidelines in the form of a credit, a downward departure is justifiable

only if the factors are "present to some exceptional degree." Koon,

518 U.S. at 96; see also Craven, 239 F.3d at 98 (ruling that a "datum

[like acceptance of responsibility] that is taken into account by a

guideline nonetheless can form the basis for a departure if it is

present to an exceptional degree" (internal citations and quotation

marks omitted)).

In order to avoid this cumbersome burden, Bogdan argues that

the factors the district court cited should be viewed as unmentioned in

the Guidelines. Though he admits that his factors can be likened to

recognized categories, Bogdan argues that existing caselaw prevents

this Court from construing Guideline categories so broadly as to

include the factors of his case. See United States v. Olbres, 99 F.3d

28, 35-36 (1st Cir. 1996) (admonishing courts not to construe

categories under the Guidelines too broadly).

Though we agree that Guideline categories should not be

distorted to cover unintended factors, no such exercise is necessary

here. The factors the district court relied upon to depart have

traditionally and exclusively been considered under established

Guideline categories because those factors and the Guideline categories

are "the semantic or practical equivalents of each other." Koon, 518

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U.S. at 110; see also United States v. DeShon, 183 F.3d 888, 890 (8th

Cir. 1999) (considering defendant's genuine acknowledgment of

responsibility for his crime and change of his lifestyle under

acceptance-of-responsibility category); United States v. Romero, 32

F.3d 641, 653 (1st Cir. 1994) (treating defendant's status as a father

under the category of family ties and responsibilities). To hold

otherwise would enable defendants to circumvent the entire Guideline

structure by cleverly characterizing discouraged factors in such a way

as to appear as -- and be treated under the more lenient standard of --

unmentioned factors.

Whether the factors the district court considered, taken

together, are present to such an exceptional degree so as to remove

Bogdan from the "heartland" of cases is not a difficult issue. At

most, the record reveals that Bogdan is a caring and generous father to

two adult children who live in distant cities. He has also made

efforts to improve his relationship with his ex-wife, while supporting

her financially with alimony payments. Finally, it is clear from

Bogdan's testimony at the sentencing hearing that he is an

introspective person who is remorseful for the serious crime he

committed.5

5 Bogdan claims that one factor that makes his case extraordinary is
the fact that several members of the community whose trust he violated
came to vouch for his character. Though the district court did hear
evidence regarding this issue, the court did not explicitly include
this factor as one that motivated its decision to depart. Again, we

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 None of these factors, whether taken individually or in the

aggregate, approximates the benchmark of extraordinariness that this

Court has set. See Koon, 518 U.S. at 98 ("Whether a given factor is

present to a degree not adequately considered by the Commission, or

whether a discouraged factor nonetheless justifies departure because it

is present in some unusual or exceptional way, are matters determined

in large part by comparison with the facts of other Guidelines

cases."); Pereira, 272 F.3d at 80 ("[E]xisting caselaw defines the

parameters for departure, outside of which a court cannot go without

assuming the risk of acting beyond permissible limits.").

Existing caselaw is unequivocal that being an exemplary

parent or spouse is not sufficient to take a case out of the

"heartland." See United States v. Sweeting, 213 F.3d 95, 102 (3d Cir.

2000) (ruling that though defendant "appears devoted to her children

and is a 'substantial positive influence' on their lives," no departure

was warranted); United States v. Tejeda, 146 F.3d 84, 87 (2d Cir. 1998)

("The existence of a stable family (a wife and two children) --

something that is by no means extraordinary -- does not satisfy the

'exceptional hardship' criterion warranting family circumstance

departure."); United States v. Bell, 974 F.2d 537, 538-39 (4th Cir.

1992) (holding that the defendant's role in helping to produce a stable

confine our analysis only to the reasons set forth by the district
court as grounds for departing.

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family, and the fact that incarceration would likely disrupt his

spousal and parental relationships, is insufficient to grant a downward

departure); United States v. Shoupe, 929 F.2d 116, 121 (3d Cir. 1991)

(ruling that a defendant who was a good father, regularly visited his

child, and paid child support did not qualify as having an

extraordinary family circumstance).

Similarly, the fact that Bogdan is highly introspective and

appreciates the criminality of his actions, though admirable, does not

serve to make his case at all exceptional, especially considering the

facts of his case. The district court found that Bogdan confessed to

his illegal conduct "once everything collapsed." It is not uncommon

for defendants to discover the virtues of introspection and remorse

when facing the threat of punishment.6 See United States v. Debeir, 186

F.3d 561, 572-73 (4th Cir. 1999) (affirming district court's ruling

that evidence of "extreme remorse" is not atypical and does not justify

downward departure); United States v. Brewer, 889 F.2d 503, 509 (6th

Cir. 1990) (ruling that remorse and prompt payment of restitution are

not enough to take case out of the "heartland"). Moreover, Bogdan's

6 Partly for this reason, we have noted that "downward departures for
presentence rehabilitation are hen's-teeth rare, and our precedent
makes clear that such departures should be granted sparingly." Craven,
239 F.3d at 99; see also Sklar, 920 F.2d at 116 ("Some degree of
presentence rehabilitation is usually to be expected from a penitent
defendant, or one who genuinely shoulders responsibility, or even from
one who simply wants to put his best foot forward at sentencing,
hopeful of lightening the load.").

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claim of remorse is undermined by the presentence report which

indicates that he had not paid any restitution despite being employed.

Regrettably, the "heartland" of cases under the Guidelines

encompasses immense and heart-wrenching hardships. See, e.g., United

States v. Dyce, 91 F.3d 1462, 1467-68 (D.C. Cir. 1996) (holding that

the district court erred when it departed based on the defendant's

status as a single mother with three children under the age of four,

one of whom was being breast-fed, and where incarceration would require

placing the children in foster care). To find that Bogdan's

circumstances are outside of the "heartland" would require us to ignore

existing caselaw and to declare that the Sentencing Commission was so

myopic that it failed to foresee that some criminals would be decent

parents and spouses who might experience remorse after being caught.

We decline the invitation.

CONCLUSION

We reverse and remand this case for action consistent with

this opinion.

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