United States v. Grandmaison

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-1674

UNITED STATES,

Appellee,

v.

PHILIP GRANDMAISON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Keeton,* District Judge.

Martin G. Weinberg, with whom Oteri, Weinberg & Lawson, Cathy J.

Green, and Kimberly Homan, Sheketoff & Homan, were on brief for

appellant.
Peter E. Papps, First Assistant United States Attorney, with whom

Paul M. Gagnon, United States Attorney, were on brief for appellee.

March 1, 1996

*Of the District of Massachusetts, sitting by designation.

BOWNES, Senior Circuit Judge. On February 8, 1995,
BOWNES, Senior Circuit Judge.

pursuant to a plea agreement with the government, defendant-

appellant Philip Joseph Grandmaison ("Grandmaison") pled

guilty to a one count information charging him with utilizing

the mail system to defraud Nashua, New Hampshire, citizens of

their right to the honest services of their public officials,

in violation of 18 U.S.C. 1341, 1346. Grandmaison now

appeals the eighteen-month sentence of imprisonment he

received, contending that the district court failed to depart

downward from the minimum prison term mandated by the

Sentencing Guidelines ("Guidelines") because of the erroneous

view that it lacked authority to do so. We agree that the

district court misapprehended its authority to depart

downward on aberrant behavior grounds. See Federal

Sentencing Guidelines Manual Ch. 1, Pt. A, Introduction

4(d) (1994). Accordingly, we vacate the sentence and remand

to the district court for a determination of whether a

downward departure on the basis of aberrant behavior is

warranted in this case. Jurisdiction stems from 18 U.S.C.

3742.

I. THE FACTS
I. THE FACTS

We consider the facts as set forth in the

unobjected- to portions of the Presentence Investigation

Report ("PSR"), the information to which defendant pled

guilty, and the sentencing hearing transcript. See, e.g.,

-2-
2

United States v. LeBlanc, 24 F.3d 340, 342 (1st Cir.), cert.

denied, -- U.S. --, 115 S. Ct. 250 (1994); United States v.

Brewster, 1 F.3d 51, 52 (1st Cir. 1993). Grandmaison served

as an "at-large" member on the Nashua Board of Alderman

("Board") from 1986 to 1993. The Board consists of fifteen

members -- six of whom are elected at-large and nine of whom

are elected from one of Nashua's nine electoral wards -- and

functions as Nashua's chief legislative arm, enacting

municipal legislation and approving all financing and

municipal construction projects. Grandmaison served on the

Board's Secondary School Coordinating Committee ("SSCC") and

the Joint Special School Building Committee ("JSSBC").

Like many of his aldermanic colleagues, Grandmaison

also had a full-time job. He was employed as Marketing

Director of the Eckman Construction Company ("Eckman

Construction"), a Bedford, New Hampshire-based company, from

1989 to 1993. In addition to his job as Eckman

Construction's Marketing Director, Grandmaison participated

in a number of charitable activities.

In 1990, the Board began seeking construction bids

for a $6.3 million project, the renovation of Nashua's sixty-

year old Elm Street Junior High School. Both the SSCC and

the JSSBC, the two committees on which Grandmaison served,

play integral roles in selecting a school construction

contractor and in overseeing the construction process. The

-3-
3

SSCC, inter alia, preselects school construction contractors,

oversees school construction or renovation work, and makes

recommendations concerning contractor expenditures and

payments. The JSSBC, which is comprised of both alderman and

Nashua School Board members, reviews the SSCC's

recommendations regarding contractors, payments, and contract

modifications.

Eckman Construction submitted a bid for the

lucrative Elm Street School Project contract. In spite of

the conflict in interest, Grandmaison remained on both the

SSCC and the JSSBC for months after Eckman Construction

submitted its bid. He publicly recused himself from both

committees on January 9, 1991, but only after questions were

raised about his connections to Eckman Construction. The

subcommittee vacancies created by Grandmaison's departures

were filled by Alderman Thomas Magee ("Magee"), an at-large

member of the Board and purported construction aficionado.

After recusal from the SSCC and JSSBC, Grandmaison

continued as an at-large member of the Board. He also

secretly took steps to manipulate the contacts he enjoyed as

an alderman to Eckman Construction's advantage. From

February 1991 until shortly before the Elm Street Project was

completed, Grandmaison lobbied three of his aldermanic

colleagues -- Magee, Steve Kuchinski ("Kuchinski"), and Anne

Ackerman ("Ackerman"), SSCC chairperson -- on Eckman

-4-
4

Construction's behalf. Grandmaison distributed informational

materials and video cassettes about Eckman construction to

both Ackerman and Magee. At the behest of Hal Eckman

("Eckman"), president of Eckman Construction, Grandmaison

gave gratuities, gifts, and other things of value to

Kuchinski, Magee, and Ackerman before and after major

contract selection votes. These gratuities and gift items

included pay-per-view sporting events, dinners, money,

campaign contributions, and promises of future political

support. Grandmaison also extended Ackerman a personal loan

and steered Eckman Construction printing jobs to the printing

business she owned.

These lobbying efforts eventually bore fruit. In

June 1991, the Board awarded the Elm Street Project contract

to Eckman Construction by a vote of eight to seven, with

Kuchinski casting the tie-breaking vote. The project

contract, which the Board subsequently mailed to Eckman

Construction, served as the basis for the charges brought

against Grandmaison. The government charged Grandmaison with

violating 18 U.S.C. 1341, 1346, the mail fraud statute.

Specifically, it maintained that Grandmaison utilized the

mail system to forward a fraudulent scheme in violation of

the oath of honest, faithful, and impartial service he took

before becoming an alderman and a host of state and local

laws pertaining, inter alia, to conflicts of interest,

-5-
5

influencing discretionary decisions by public servants, and

acceptance of pecuniary benefits by public officials. See

New Hampshire Revised Statutes Annotated 640 et seq. (1986 &

Supp. 1994); Nashua, N.H., Rev. Ordinances 2-273, 2-274,

2-276, 2-278; and Nashua, N.H., Rev. Ordinances 7:56,

7:59. The government also prosecuted Magee and Kuchinski for

their roles in this case.

Pursuant to a plea agreement with the government,

Grandmaison pled guilty to a one count information charging

him with utilizing the mail system to defraud Nashua citizens

of their right to the honest services of their public

officials. The district court scheduled a sentencing hearing

and prior thereto received a PSR from the Probation

Department. The PSR prepared by the Probation Department

recommended a total adjusted guideline offense level of

fifteen. This recommendation reflects an eight level

increase in the base offense because a public official in a

decision making position committed the crime and a three

level decrease for acceptance of responsibility. See

U.S.S.G. 2C1.7(b)(1)(B), 3E1.1 (a) and (b). Because

Grandmaison had no prior criminal record, the Probation

Department placed him in Criminal History Category I,

resulting in a sentencing range of eighteen to twenty-four

months.

II. THE SENTENCING HEARING
II. THE SENTENCING HEARING

-6-
6

At the sentencing hearing, Grandmaison requested a

downward departure to an offense level of eight, which

corresponds to a sentencing range of zero to six months.

Grandmaison based this request on three interrelated grounds:

1) his criminal conduct constituted "aberrant behavior"

within the meaning of Guidelines Manual Ch. 1, Pt. A,

Introduction

4(d); 2) his extraordinary contributions to family, friends,

and the community were not adequately addressed by the

Guidelines; and 3) the facts of his case warranted a downward

departure by analogy to section 2C1.3 of the Guidelines. The

defense also submitted one hundred letters attesting to

Grandmaison's good deeds and character at the sentencing

hearing. Based on these letters and Grandmaison's prior

record, the government agreed that downward departure on

aberrant behavior grounds was appropriate and recommended a

reduced prison sentence of twelve months and one day.

The district court declined to depart downward on

any of the three grounds advanced by Grandmaison. The court,

citing our decision in United States v. Catucci, 55 F.3d 15,

19 n.3 (1st Cir. 1995), as support, found that a "downward

departure based on 'aberrant behavior,'" though generally

available under the Guidelines, "was not available as a

matter of law" in this case. It concluded that Grandmaison's

conduct did not fall within the definition of aberrant

-7-
7

behavior. The definition adopted by the court required a

showing of first-offender status, behavior inconsistent with

otherwise good or exemplary character, and spontaneity or

thoughtlessness in committing the crime of conviction.

Next, the court concluded that the facts did not

warrant downward departure on the basis of Grandmaison's

contribution to family, friends, and the community. It did

not make a specific finding on the section 2C1.3 claim raised

by Grandmaison, but did state that "no other grounds . . .

advanced [by defendant or the government]. . . would justify

departure downward." Accordingly, the court adopted the

PSR's factual findings and offense calculations in full.

Honoring the government's request for leniency, the court

selected the lowest end of the applicable guideline range and

sentenced Grandmaison to an eighteen month term of

imprisonment and two years of supervised release. The court

also assessed Grandmaison $50.00, as required by statute.

III. REFUSALS TO DEPART FROM THE GUIDELINES
III. REFUSALS TO DEPART FROM THE GUIDELINES

Before addressing the three grounds on which

defendant rests his appeal, we briefly discuss the rules

pertaining to refusals to depart from sentences prescribed by

the Guidelines. Under the Sentencing Reform Act, sentencing

courts are expected to apply the Guidelines, adjust the base

offense level as the facts require, calculate a sentencing

range, and impose a sentence within the identified range.

-8-
8

United States v. Jackson, 30 F.3d 199, 201 (1st Cir. 1994);

see 18 U.S.C. 3553(b); Guidelines Manual Ch. 1, Pt. A,

Introduction 4(b). In general, sentencing courts are to

regard "each guideline as carving out a 'heartland,' a set of

typical cases embodying the conduct each guideline

describes." Guidelines Manual Ch. 1, Pt. A, Introduction

comment 4(b). Departures are warranted only where a case is

atypical or where the facts are significantly outside the

norm. Jackson, 30 F.3d at 201.

Decisions to depart generally fall into one of

three categories: forbidden, discouraged, and encouraged.

Forbidden departures are those based, inter alia, on race,

sex, national origin, creed, religion, or socioeconomic

status. See Jackson, 30 F.3d at 202; United States v.

Rivera, 994 F.2d 942, 948-49 (1st Cir. 1993); U.S.S.G.

5H1.10, 5H1.12. The Sentencing Commission ("Commission") has

expressly precluded departure on these grounds, even where

they make a case atypical or extraordinary. Rivera, 994 F.2d

at 948-49. Discouraged departures involve factors which were

considered by the Commission -- such as age, family ties and

responsibilities, employment record, good works, or physical

condition -- but which present themselves to an extraordinary

degree in a particular case. United States v. DeMasi, 40

F.3d 1306, 1323-24 (1st Cir. 1994), cert. denied, -- U.S. --,

115 S. Ct. 947 (1995); United States v. Hilton, 946 F.2d 955,

-9-
9

959 (1st Cir. 1991). Encouraged departures, in contrast,

involve considerations not previously taken into account by

the Commission. Hilton, 946 F.2d at 959.

Because the Commission intended departures on any

grounds to be the exception rather than the rule, Jackson,

30 F.3d at 201, a district court's refusal to depart --

upward or downward -- is ordinarily not appealable. See

United States v. DeCosta, 37 F.3d 5, 8 (1st Cir. 1994);

United States v. Gaines, 7 F.3d 101, 105 (7th Cir. 1993);

Hilton, 946 F.2d at 957. The well-established rule is that

appellate courts lack jurisdiction to review discretionary

district court decisions not to depart from sentences imposed

under the Guidelines. See United States v. Byrd, 53 F.3d

144, 145 (6th Cir. 1995); United States v. Gifford, 17 F.3d

462, 473 (1st Cir. 1994); United States v. Amparo, 961 F.2d

288, 292 (1st Cir.), cert. denied, 506 U.S. 878 (1992).

There are, however, certain exceptions to this

rule. Appellate jurisdiction attaches, for example, where

the record indicates that the trial court's failure to depart

was the product of a mistake of law. Gifford, 17 F.3d at

473; Amparo, 961 F.2d at 292; Hilton, 946 F.2d at 957. If it

appears that a misapprehension of the applicable guideline or

miscalculation of the authority to deviate from the guideline

range prevented the court from departing downward, appellate

review is appropriate. Gifford, 17 F.3d at 473; United

-10-
10

States v. Pierro, 32 F.3d 611, 619 (1st Cir. 1994), cert.

denied, -- U.S. --, 115 S. Ct. 919 (1995).

Our review as to whether such a misapprehension of

judicial authority occurred is plenary. United States v.

Ovalle-M rquez, 36 F.3d 212, 221 (1st Cir. 1994), cert.

denied, -- U.S. --, 115 S. Ct. 1322 (1995). Plenary review

also governs where the issue on appeal pertains to the scope

or interpretation of a guideline. United States v. Marcello,

13 F.3d 752, 755 (3d Cir. 1994)("The question of whether the

district court adopted the proper standard [of

interpretation] is a question of law subject to plenary

review.").

IV. DISCUSSION
IV. DISCUSSION

The crux of Grandmaison's appeal is that the

district court misunderstood the scope of its departure

authority. He argues that the court erroneously concluded

that it was precluded from departing downward on the grounds

of aberrant behavior and extraordinary offender

characteristics. Additionally, he maintains that the court

misapprehended its power to depart downward by analogy to

section 2C1.3 of the Guidelines, which concerns conflicts of

interest. See U.S.S.G. 2C1.3. We begin by analyzing the

claim that the facts of this case permit downward departure

on the basis of aberrant behavior and discuss the two

remaining bases for appeal in turn.

-11-
11

A. Aberrant Behavior as a Basis for Downward
A. Aberrant Behavior as a Basis for Downward
Departure.
Departure

1. Jurisdiction and the District Court's
1. Jurisdiction and the District Court's
Refusal to Depart.
Refusal to Depart.

The threshold issue raised by defendant's aberrant

behavior claim is whether we have jurisdiction to review the

district court's refusal to depart downward. Pierro, 32 F.3d

at 619. We note at the outset, though it does not relate

directly to questions of jurisdiction, that the basic premise

of defendant's aberrant departure claim is correct. The

Guidelines permit downward departures on the basis of

aberrant behavior. See, e.g., Catucci, 55 F.3d at 19 n.3

(citing cases); Marcello, 13 F.3d at 760 (citing cases);

Gifford, 17 F.3d at 475; United States v. Morales, 972 F.2d

1007, 1011 (9th Cir. 1992), cert. denied, -- U.S. --, 113 S.

Ct. 1665 (1993). Such departures fall into the category

embracing factors not previously considered by the

Commission. United States v. Premachandra, 32 F.3d 346, 349

(8th Cir. 1994); United States v. Fairless, 975 F.2d 664,

668-69 (9th Cir. 1992); see Guidelines Manual Ch. 1, Pt. A,

Introduction 4(d)("The Commission, of course, has not dealt

with the single acts of aberrant behavior that still may

justify probation at higher offense levels through

departures."). And they may be employed whether the sentence

computed involves imprisonment or merely probation. See

-12-
12

United States v. Duerson, 25 F.3d 376, 380 (6th Cir.

1994)(citing cases); Fairless, 975 F.2d at 668.

Consistent with the departure recommendation it

entered at sentencing, the government acknowledges that

aberrant behavior departures are available under the

Guidelines, but maintains that we lack jurisdiction to review

defendant's claim because the district court's refusal to

depart was an exercise of discretion. Defendant disputes

this, arguing that he has cleared his jurisdictional hurdle

because the record clearly shows that the district court's

refusal to depart stemmed from a misapprehension of its

authority to depart on aberrant behavior grounds. See

Gifford, 17 F.3d at 473; Pierro, 32 F.3d at 611. Having

reviewed the totality of the record, as we are obligated to

do, see United States v. Morrison, 46 F.3d 127, 130 (1st Cir.

1995)(citing United States v. LeBlanc, 24 F.3d 340, 348 (1st

Cir.), cert. denied, -- U.S. --, 115 S. Ct. 250 (1994)), we

find that the truth lies somewhere between these two

positions.

The record reveals that the district court

understood its general authority to depart on aberrant

behavior grounds, but adopted the wrong standard in

determining whether defendant's behavior was "aberrant" under

the Guidelines. The court erroneously held that an aberrant

behavior departure in this Circuit requires an initial

-13-
13

finding of "spontaneity" or a "thoughtless act."

Anticipating our review, the court also made it clear that it

would have granted the departure requests entered by both

defendant and the government had it not believed itself bound

to this standard:

THE COURT: And so I'm going to
sentence you at the lowest end of the
guidelines range that otherwise is
applicable in your case. If the Court of
Appeals disagrees with my interpretation
of aberrant behavior and the case is
returned, if it helps the Court of
Appeals in terms of imposing sentence on
appeal or resolving the question on
appeal, assuming you do appeal, I will
say on the record that if I thought I
could depart on a principled basis and
consistent with the law, I would follow
the U.S. Attorney's recommendation and I
would sentence you to one year -- 12
months and one day.

Based on this statement, we think it plain that the court

misunderstood its authority to depart downward under the law

of this Circuit.

We therefore agree with defendant on this initial

matter of jurisdiction. The district court's misapprehension

of its departure authority confers jurisdiction on this

court. See Gifford, 17 F.3d at 473; Pierro, 32 F.3d at 619.

The de novo standard of review governs our review of this

aspect of defendant's claim. See Marcello, 13 F.3d at 755.

2. A Definition of Aberrant Behavior.
2. A Definition of Aberrant Behavior.

-14-
14

The Guidelines refer to "single acts of aberrant

behavior," but neither define that phrase nor provide any

insight into what the Commission might have meant when it

used it. See Guidelines Manual Ch. 1, Pt. A, Introduction

4(d); United States v. Williams, 974 F.2d 25, 26 (5th Cir.

1992), cert. denied, 507 U.S. 934 (1993). Defendant's claim

presents an issue of first impression in this Circuit. We

have considered cases involving departure requests based on

aberrant behavior, see, e.g., Catucci, 55 F.3d at 19 n.3;

United States v. Pozzy, 902 F.2d 133, 137-38 (1st Cir.),

cert. denied, 498 U.S. 943 (1990); United States v. Russell,

870 F.2d 18, 21 (1st Cir. 1989), but have not had occasion to

define that term with specificity until now. Catucci, supra,

which the district court erroneously regarded as foreclosing

departure, did not require us to define "aberrant behavior."

In that case, we acknowledged disagreement among the circuits

as to what type of conduct aberrant behavior entails but did

not deem it necessary to articulate a definition for our own

Circuit because we found that the defendant had waived his

departure claim. Grandmaison's claim, in contrast, hinges on

an articulation of an aberrant behavior standard. We,

therefore, turn our attention to that task.

Two cases establish what have come to be recognized

as the outer boundaries of the aberrant behavior spectrum.

United States v. Russell, 870 F.2d 18 (1st Cir. 1989), stands

-15-
15

at one end of the spectrum and United States v. Carey, 895

F.2d 318 (7th Cir. 1990), at the other. Russell involved

criminal conduct which was impulsive and unpremeditated.

Tempted by the prospect of instant wealth, a Wells Fargo

armored truck driver and his partner decided to keep an extra

bag of money mistakenly handed them. The driver, who had no

prior criminal record, returned the money almost immediately

after committing his crime and cooperated in the subsequent

police investigation. In contrast, Carey involved a

premeditated criminal scheme carried out over a long period

of time. There, a trucking company president engaged in a

check-kiting scheme over a fifteen-month period. Each work

day during this period the company president concealed his

two over-drawn bank accounts by having his bookkeeper prepare

checks to cover the fund shortage. He signed each check and

frequently deposited them himself. The Seventh Circuit held

that this behavior was not "aberrant." 895 F.2d at 324-25.

Uncertainty about the reason for the district court's refusal

to depart precluded this court from deciding that issue in

Russell.

Circuit courts are divided over where criminal

conduct must fall on the aberrant behavior spectrum to

justify downward departure. As we noted in Catucci, some

have adopted an expansive view of what aberrant behavior

means in the context of the Guidelines, whereas others

-16-
16

require a spontaneous or thoughtless act of the sort

committed by the defendant in Russell. The Seventh Circuit's

decision in Carey provided the moorings for the latter group

of circuits. The Carey court held that "[a] single act of

aberrant behavior . . . generally contemplates a spontaneous

and seemingly thoughtless act rather than one which was the

result of substantial planning because an act which occurs

suddenly and is not the result of a continued reflective

process is one for which the defendant may be arguably less

accountable." 895 F.2d at 325. The Seventh Circuit later

reinforced this tight interpretation in United States v.

Andruska, 964 F.2d 640, 645-46 (7th Cir. 1992), a decision

reversing a district court's decision to depart downward in a

case involving a woman found guilty of concealing her

fugitive paramour from arrest.

The Third, Fourth, Fifth, and Eighth Circuits have

embraced the Seventh Circuit's view of aberrant behavior.

For example, in Marcello, supra, the Third Circuit explained

that "there must be some element of abnormal or exceptional

behavior" before adopting the Seventh Circuit's spontaneity

requirement and reversing the district court's decision to

depart downward. 13 F.3d at 761. The Marcello defendant was

an attorney who, on seven separate occasions, structured bank

deposits to avoid tax reporting requirements in violation of

-17-
17

31 U.S.C. 5322(a), 5324(3). He committed these offenses

over the span of seven consecutive working days.

Cases involving extensive planning or repeated

criminal acts received similar treatment in the Fourth,

Fifth, and Eighth Circuits. In United States v. Glick, 946

F.2d 335, 338 (4th Cir. 1991), the Fourth Circuit reversed a

downward departure decision after noting that the defendant

transported letters containing stolen trade secrets across

state lines on several occasions. In Williams, supra, the

Fifth Circuit affirmed a district court's refusal to depart

downward because the robbery executed by the defendant

involved planning. Similarly, the Eighth Circuit found that

a bank fraud scheme carried out over a one year period lacked

the level of spontaneity and thoughtlessness required by

cases such as Carey. See United States v. Garlich, 951 F.2d

161, 164 (8th Cir. 1991); see also Premachandra, 32 F.3d at

349.

In contrast, the Ninth and Tenth Circuits have

eschewed any focus on spontaneity and thoughtlessness, opting

instead for a broad view of aberrant behavior. They require

reviewing courts to employ the totality of the circumstances

test in making aberrant behavior determinations. Under this

test, courts consider a variety of mitigating factors, such

as pecuniary gain to the defendant, prior good deeds, and an

effort to mitigate the effects of the crime in evaluating

-18-
18

whether a defendant's conduct was unusual or, more

specifically, "aberrant." See, e.g., United States v. Takai,

941 F.2d 738, 741 (9th Cir. 1991).

In Takai, the Ninth Circuit affirmed the district

court's decision to depart downward after finding that the

defendants who pled guilty to bribery of and conspiracy to

bribe an Immigration and Naturalization Service official,

inter alia, received no pecuniary gain, had no criminal

record, and had been influenced by a government agent. A

convergence of factors, such as the defendant's manic

depression, suicidal tendencies, and recent unemployment,

also led the Ninth Circuit to affirm downward departure in

Fairless, supra, an armed robbery case. Similarly, in United

States v. Pena, 930 F.2d 1486, 1494 (10th Cir. 1991), a drug

possession case, the Tenth Circuit held that downward

departure was appropriate because the defendant's behavior

was an aberration from her usual conduct, which was

highlighted by long-term employment, no abuse or prior

distribution of controlled substances, and economic support

of her family.

We are persuaded, after reviewing the cases decided

by our colleagues in other circuits, that the approach taken

by the Ninth and Tenth Circuits achieves the balance between

uniformity in sentencing and district court discretion the

Guidelines were intended to strike. See Jackson, 30 F.3d at

-19-
19

201-02. We, thus, hold that determinations about whether an

offense constitutes a single act of aberrant behavior should

be made by reviewing the totality of the circumstances.

District court judges may consider, inter alia, factors such

as pecuniary gain to the defendant, charitable activities,

prior good deeds, and efforts to mitigate the effects of the

crime in deciding whether a defendant's conduct is aberrant

in terms of other crimes. See DeMasi, 40 F.3d at 1324

(departure determination should be made by comparing case to

other cases involving the stated reason for departure).

Spontaneity and thoughtlessness may also be among the factors

considered, though they are not prerequisites for departure.

That aberrant behavior departures are available to

first offenders whose course of criminal conduct involves

more than one criminal act is implicit in our holding. See

Takai, 941 F.2d at 743. We think the Commission intended the

word "single" to refer to the crime committed and not to the

various acts involved. As a result, we read the Guidelines'

reference to "single acts of aberrant behavior" to include

multiple acts leading up to the commission of a crime. See

id. Any other reading would produce an absurd result.

District courts would be reduced to counting the number of

acts involved in the commission of a crime to determine

whether departure is warranted. Moreover, the practical

effect of such an interpretation would be to make aberrant

-20-
20

behavior departures virtually unavailable to most defendants

because almost every crime involves a series of criminal

acts. Even the Russell defendant, whose spontaneous actions

are widely regarded as a classic example of aberrant

behavior, could be understood to have committed more than a

single act of aberrant behavior. He conspired with his

partner to take money from the armored truck he drove; took

the money; and then kept the money for a short period of

time. Thus, we think that focusing on the crime of

conviction instead of the criminal acts committed in carrying

out that crimebest comports with what theCommission intended.

The approach we now adopt does not unnecessarily

expand opportunities for departure under the Guidelines. The

totality of the circumstances test, though admittedly broader

than the spontaneity test employed in Carey, is consistent

with the Commission's intention to limit applications of the

aberrant behavior principle. See Andruska, 964 F.2d at 645.

Concerns that it ensures every first offender a downward

departure from their Guidelines-imposed sentence are without

foundation. As the Ninth Circuit explained in United States

v. Dickey, 924 F.2d 836 (9th Cir. 1991), "aberrant behavior

and first offense are not synonymous." 924 F.2d at 838; see

Glick, 946 F.2d at 338. Without more, first-offender status

is not enough to warrant downward departure.

-21-
21

District courts are not, however, precluded from

considering first-offender status as a factor in the

departure calculus. Departure-phase consideration of a

defendant's criminal record does not, we think, wrongly

duplicate the calculations involved in establishing a

defendant's criminal history category under the Guidelines.

First, as we just noted, it is obviously not the case that

every defendant in Criminal History Category I will be

qualified for an aberrant behavior departure. There will be

individuals in that category who, for instance, are not

entitled to departure because they were convicted of several

unrelated offenses or who have been regular participants in

elaborate criminal enterprises. See Morales, 972 F.2d at

1011. Second, to the extent that considering a defendant's

criminal record at both the criminal history and departure

stages amounts to double counting, the Guidelines clearly

permit it. But see Marcello, 13 F.3d at 755 (3d Cir.)

(concluding that the Guidelines prohibit considering a

defendant's criminal record at both the criminal history and

departure stages). The Guidelines explain that "the court

may depart . . . even though the reason for departure is

taken into consideration . . . if the court determines that,

in light of unusual circumstances, the guideline level

attached to that factor is inadequate." U.S.S.G. 5K2.0.

-22-
22

The question now becomes whether defendant's

conduct falls within the ambit of aberrant behavior under the

standard we have articulated. We leave this to the district

court's discretion. It occupies the best vantage point from

which to make the decision. Rivera, 994 F.2d at 950. We,

therefore, vacate defendant's sentence and remand for

resentencing.

B. Extraordinary Offender Characteristics as a
B. Extraordinary Offender Characteristics as a
Basis for Downward Departure.
Basis for Downward Departure.

Defendant's second argument on appeal is that the

district court misunderstood its authority to depart on the

ground of his extraordinary characteristics. We agree that

extraordinary characteristics such as unusual family

obligations or exceptional charitable activities may, in

certain circumstances, provide a basis for a downward

departure. See, e.g., United States v. Haverstat, 22 F.3d

790, 795-96 (8th Cir. 1994), cert. denied, -- U.S. --, 116 S.

Ct. 671 (1995); United States v. Canoy, 38 F.3d 893, 905-07

(7th Cir. 1994); Rivera, 994 F.2d at 948-53; United States v.

Sclamo, 997 F.2d 970, 973-74 (1st Cir. 1993); Pena, 930 F.2d

at 1495; United States v. Big Crow, 898 F.2d 1326, 1332 (8th

Cir. 1990). We disagree, however, that the district court

misunderstood its authority to depart. It appears clear that

the court found that defendant's family obligations and

charitable activities, though noteworthy, were neither

extraordinary nor exceptional.

-23-
23

The best indicator of the district court's

unwillingness to depart downward on the basis of

extraordinary characteristics is the stark difference between

the court's sentencing-hearing statements about departure on

this basis and on the grounds of aberrant behavior. When

asked to make a finding about defendant's extraordinary

offender characteristics claim, the district court stated:

THE COURT: To the extent you've asked me
to depart based on that, I would find
that those, extraordinary commitment to
family and extraordinary offender
characteristics, don't rise to the level
that would justify a departure out of the
heartland of the guidelines . . . So to
the extent I have discretion in that
regard, I exercise my discretion not to
depart downward.

These statements make it plain that the district court's

refusal to depart stemmed from an exercise of discretion.

See DeCosta, 37 F.3d at 8 ("[we suggest] . . .[t]hat the

district court say . . . that it has considered the

mitigating factors urged but does not find them sufficiently

unusual to warrant a departure in the case at hand."). And

even if we were to assume that these statements are

ambiguous, that ambiguity, without more, would not be enough

to make the district court's refusal to depart appealable.

Morrison, 46 F.3d at 132; see United States v. Romero, 32

F.3d 641, 654 (1st Cir. 1994). Our review of this matter is,

thus, at an end. We lack jurisdiction to review the district

-24-
24

court's refusal to depart downward on the basis of

extraordinary offender characteristics. Byrd, 53 F.3d at

145; Gifford, 17 F.3d at 473.

C. The Heartland of Section 2C1.7 of the
C. The Heartland of Section 2C1.7 of the
Guidelines.
Guidelines.

Defendant's final argument on appeal concerns the

scope of section 2C1.7 of the Guidelines, which corresponds

to 18 U.S.C. 1341, 1346, the mail fraud statute to which

he pled guilty. Without disputing section 2C1.7's general

applicability to his conduct, defendant maintains that the

district court misapprehended its authority to impose a

shorter prison term by departing downward, by analogy, to the

sentence prescribed under section 2C1.3 of the Guidelines.

For individuals in Criminal History Category I, section 2C1.3

-- which concerns conflicts of interest by present and former

federal officers and employees -- carries a sentencing range

of zero to six months. Section 2C1.7 imposes a sentencing

range of eighteen to twenty-four months for individuals in

the same category. See U.S.S.G. 2C1.7 (Fraud Involving

Deprivation of the Intangible Right to the Honest Services of

Public Officials); U.S.S.G. 2C1.3 (Conflict of Interest).

Though cast as a claim relating to the district

court's refusal to depart, defendant's argument, at its core,

primarily concerns the heartland of section 2C1.7 of the

Guidelines. Defendant essentially argues that his conduct

falls outside the heartland of section 2C1.7 and within the

-25-
25

scope of section 2C1.3 because it primarily involved a

conflict of interest, not fraud. Because questions

concerning the scope and meaning of a guideline, unlike

questions pertaining to the facts which lead a district court

to render its departure decision, are quintessentially legal

in nature, see LeBlanc, 24 F.3d at 345, Rivera, 994 F.2d at

952, we have jurisdiction to review defendant's claim. Our

review is plenary, as it is whenever a district court's

decision "reflect[s] a determination of the purpose of, or an

interpretation of the language in, a guideline or statute."

LeBlanc, 24 F.3d at 344; see United States v. Rosales, 19

F.3d 763, 769 (1st Cir. 1994).

To determine whether defendant's conduct is of the

sort which generally falls within section 2C1.7's

"heartland," we must determine the nature of the underlying

crime of mail fraud. See, e.g., LeBlanc, 24 F.3d at 346. We

look in part to the language of the mail fraud statute and to

the legislative history which accompanies it. Id. In

relevant part, section 1341 provides:

Whoever, having devised or intending to
devise any scheme or artifice to defraud,
or for obtaining money or property by
means of false or fraudulent pretenses,
representations, or promises . . . for
the purpose of executing such scheme or
artifice or attempting so to do, [uses
the mail system or causes it to be used]
shall be fined under this title or
imprisoned not more than five years, or
both. If the violation affects a
financial institution, such person shall

-26-
26

be fined not more than $1,000,000 or
imprisoned not more than 30 years, or
both.

Congress enacted this statute in 1872, as "a

general proscription against using the mails to initiate

correspondence in furtherance of 'any scheme or artifice to

defraud.'" McNally v. United States, 483 U.S. 350, 355, 359

(1987). The legislative history suggests that Congress

intended the mail fraud statute to protect people from

"schemes to deprive them of their money or property." Id. at

356. Before 1987, section 1341 was read as a broad shield,

protecting individuals against schemes to deprive them of

intangible, as well as tangible, property. Then, in 1987,

the Supreme Court held that the statute did not embrace

intangible rights. McNally held that the mail fraud statute

does not prohibit schemes to defraud individuals of their

intangible rights to the honest services of government. 483

U.S. at 359-60; see Carpenter v. United States, 489 U.S. 19,

25 (1987).

In 1988, Congress enacted section 1346, the honest

services amendment, to reverse the Supreme Court's decision

in McNally. United States v. Bucuvalas, 970 F.2d 937, 942

n.9 (1st Cir. 1992); United States v. Alkins, 925 F.2d 541,

548 (2d Cir. 1991); McEvoy Travel Bureau, Inc. v. Heritage

Travel, Inc., 904 F.2d 786, 790 (1st Cir. 1990); see 134

Cong. Rec. S17360-02 (daily ed. November 10, 1988)(Judiciary

-27-
27

Committee analysis)("This section overturns the decision in

McNally v. United States . . . Under [this] amendment, [the

mail and wire fraud] statutes will protect . . . the right of

the public to the honest services of public officials.").

Section 1346 became effective on November 18, 1988 and

provides:

For the purposes of this chapter, the
term "scheme or artifice to defraud"
includes a scheme or artifice to deprive
another of the intangible right of honest
services.

See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title

VII, 7603 (a), 102 Stat. 4508 (1988). It restores mail

fraud convictions to their pre-McNally status by allowing the

government to predicate mail fraud prosecutions on

deprivations of the intangible right of honest services.

United States v. Bryan, 58 F.3d 933, 940 n. 1 (4th Cir.

1995); Waymer, 55 F.3d at 568 n.3; see 135 Cong. Rec. S1063

(daily ed. February 2, 1989)(statement of Sen. Biden). An

offense under section 1346 is established when the evidence

demonstrates that the use of the mail system played a role in

executing the deprivation of the honest services of

government. Schmuck v. United States, 489 U.S. 705, 710

(1989)(citing Kann v. United States, 323 U.S. 88, 95 (1944));

see United States v. Yefsky, 994 F.2d 885, 890, 892 (1st Cir.

-28-
28

1993); United States v. Dray, 901 F.2d 1132, 1137 (1st Cir.

1990), cert. denied, 498 U.S. 895 (1990).

Section 1346 includes cases in which the mail

system plays an integral role in the scheme to defraud

citizenry of the honest services of government, as well as

schemes in which use of the mail system is only incidental to

the larger plan. Id. at 710-11; see United States v. Morrow,

39 F.3d 1228, 1236-37 (1st Cir. 1994), cert. denied, 115 S.

Ct. 1421 (1995) (mail fraud generally includes incidental use

of the mails in furtherance of a scheme to defraud). The

Eleventh Circuit recently affirmed a defendant's conviction

on twenty-two counts of mail fraud even though the defendant

only used the mail system to receive payments from his

partner in a money laundering the scheme. In Waymer, supra,

the court rejected claims that section 1346 is vague and

overbroad and reiterated the Supreme Court's conclusion in

Schmuck, supra, that "[i]t is sufficient for the mailing to

be 'incident to an essential part of the scheme' or 'a step

in the plot.'" 55 F.3d at 569; see also Badders v. United

States, 240 U.S. 391, 393-94 (1916). In Waymer, the

defendant was an elected member of the Atlanta Board of

Education who failed to fully disclose his relationship with

the contractor who provided pest control services to

Atlanta's public schools. Unbeknownst to the other school

board members, the defendant received fifteen percent of all

-29-
29

the proceeds from the contractor's contracts with the school

system.

Courts have read section 1346 to include efforts by

public officials and employees to conceal their fraudulent

acts from the public "by means of false or fraudulent

pretenses, representations, promises, or other deceptive

conduct." See McEvoy Travel, 904 F.2d at 791. For example,

the Fourth Circuit recently upheld the conviction of a public

official on such grounds in United States v. Bryan, 58 F.3d

933 (4th Cir. 1995). In that case, the Director of the West

Virginia Lottery orchestrated a scheme whereby he secretly

ensured that lottery contracts and contract bids were awarded

to companies with whom he had a personal relationship. The

Fourth Circuit held that section 1346 applied to the

defendant's conduct. 58 F.3d at 939-41. Similarly, United

States v. Alkins, 925 F.2d 541 (2d Cir. 1991), a Second

Circuit case, upheld the section 1346-based convictions of

six Department of Motor Vehicles employees because they

failed to disclose their fraudulent activities to department

officials. 925 F.2d at 549. The defendants in that case

secretly processed improperly documented applications for

driver's licenses, identification cards, and vehicle

registrations in return for monetary disbursements.

We hold that the conduct to which Grandmaison pled

guilty falls within the range of conduct Congress intended 18

-30-
30

U.S.C. 1341, 1346 to encompass and, concomitantly, rests

squarely within the heartland of section 2C1.7. Grandmaison

continued to lobby Board members on behalf of Eckman

Construction after his recusal from the SSCC and JSSBC. He

secretly delivered gratuities to Magee, Ackerman, and

Kuchinski to secure favorable votes on Eckman Construction's

bid. He distributed informational materials about Eckman

Construction to Magee and Ackerman without disclosing his

actions to other Board members. And he caused the Elm Street

Project contract to be sent to Eckman Construction via the

mail system. Though there is no evidence that Grandmaison

received direct monetary benefit from his actions, there can

be little doubt that under cases such as Waymer, Bryan, and

Alkins he deprived the citizens of Nashua of the honest

services of their government under section 1346. This is not

an unusual case.

Defendant maintains that he is mainly guilty of not

revealing a conflict of interest. To be sure, his conduct

involved some element of such a violation. It does not

follow from this, however, that he should not be sentenced

pursuant to section 2C1.7, the guideline corresponding to the

mail fraud

-31-
31

statute to which he pled guilty. First, we are convinced

that 18 U.S.C. 1341, 1346 encompasses crimes of the sort

committed by defendant. Second, even if the applicability of

section 1346 were suspect, we are not at all certain that

downward departure to the sentence prescribed by section

2C1.3 would be appropriate. This is principally because

section 2C1.3 linguistically does not apply to defendant or

his conduct; that guideline only addresses conflicts of

interests by present or former federal officers and employees

and, therefore, does not reach state or local officials such

as defendant. In the final analysis, defendant has managed

to persuade us of only one thing: that had he been a federal

employee or official, the government might have been able to

charge him with violating other statutes as well. See

U.S.S.G. 2C1.3 (listing statutory provisions corresponding

to that guideline). Because this argument clearly does not

merit the application of a lower sentencing range defendant

seeks, we affirm the district court's refusal to depart

downward by analogy to section 2C1.3.

V. CONCLUSION
V. CONCLUSION

For the foregoing reasons, we vacate Grandmaison's

sentence and remand for resentencing under the aberrant

behavior standard formulated in this opinion. Defendant's

appeal for downward departure on the basis of his

extraordinary offender characteristics is dismissed for lack

-32-
32

of jurisdiction. And we affirm the district court's refusal

to depart downward by analogy to section 2C1.3 of the

Guidelines.

It is so ordered.
It is so ordered.

-33-
33