United States v. Roselli

United States Court of Appeals
For the First Circuit

No. 03-1550

UNITED STATES OF AMERICA,

Appellant,

v.

ANTONIO ROSELLI,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Lipez, Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.

S. Robert Lyons, Attorney, Tax Division, U.S. Department of
Justice, with whom Eileen J. O'Connor, Assistant Attorney General,
Robert E. Lindsay, and Alan Hechtkopf, Attorneys, Tax Division,
U.S. Department of Justice, were on brief, for appellant.

Richard M. Egbert, with whom Patricia M. DeJuneas was on
brief, for appellee.

May 5, 2004
 LIPEZ, Circuit Judge. Defendant Antonio Roselli pleaded

guilty to tax fraud. At sentencing, the district court declined to

determine the exact amount of the tax loss, and the offense level

that would result from such a determination, ruling that such a

finding would not affect the sentence. The court then departed

downward from the Sentencing Guidelines based on Roselli's

extraordinary family circumstances. The Government now appeals

both the failure to specify an amount of tax loss and the decision

to depart. Although we agree that the failure to specify an amount

of tax loss and the related offense level was an error, we find

that error harmless, and we affirm.1

I.

In 1989, Antonio Roselli began working as a partner in an

accounting firm where he provided tax services. In 1997 and 1998,

Roselli prepared tax returns on behalf of his clients that included

false deductions for charitable contributions and business

expenses. He charged his clients approximately $250 for each false

return. Roselli also amended tax returns from prior years, adding

1
Prior to oral argument, the district court granted appellee's
motion to supplement the appellate record with the probation
officer's confidential sentencing recommendation. In granting the
motion, the district court explained that it does not normally
consult such confidential recommendations when making sentencing
decisions, and did not consult the recommendation in this case.
One member of this panel has reviewed the probation officer's
sentencing recommendation. However, that recommendation has not
been discussed among the panel members, and it has not been
considered in the decision of the panel.

-2-
false deductions in an effort to procure retroactive refunds. For

each amended return he charged approximately one third of the

expected refund. The Government contends that, all told, Roselli

prepared more than 140 false tax returns, accounting for $101,524

in tax loss to the United States Treasury.

On August 29, 2002, Roselli pleaded guilty to one count

of conspiracy to aid, assist, and abet in the filing of materially

false tax returns in violation of 26 U.S.C. § 7206(2). In the plea

agreement, the Government stated its belief that the tax loss was

$101,524, indicating a base offense level of 14 pursuant to section

2T1.4 of the Sentencing Guidelines.2 The Government argued that

the appropriate total offense level, after several adjustments, was

13.3 The Government agreed to recommend a sentence of twelve

2
All references to the Sentencing Guidelines are to the 1998
edition, which was in place at the time Roselli committed his most
recent offense. Normally, we apply the edition in effect at the
time of sentencing. See United States v. Harotunian, 920 F.2d
1040, 1041-42 (1st Cir. 1990)("Barring any ex post facto problem,
a defendant is to be punished according to the guidelines in effect
at the time of sentencing."). However, § 2T4.1 provides for lower
offense levels in the 1998 guidelines than it does in the current
edition. "Because imposition of the amended guidelines would have
resulted in a higher BOL, and thus raised ex post facto concerns,"
we apply the 1998 Sentencing Guidelines. Harotunian, 920 F.2d at
1042.
3
The Government reached this calculation as follows: (1) an
offense level of 14 for a tax loss greater than $70,000 but less
than $120,000 pursuant to U.S.S.G. § 2T4.1; (2) a two level
increase, pursuant to U.S.S.G. § 2T1.4(b)(1)(B), because Roselli
was in the business of preparing tax returns; (3) a three level
decrease for acceptance of responsibility pursuant to U.S.S.G. §
3E1.1 (Section 3(e) of the plea agreement stipulated that the

-3-
months incarceration, a $20,000 fine, a $100 special assessment,

and three years of supervised release. Roselli asserted that the

tax loss was not readily ascertainable and, in any event, was far

less than $101,524. Although he asserted that the proper total

offense level was 10, he nevertheless agreed to recommend the same

sentence as the prosecution, except that he would seek home

detention for the twelve month period rather than incarceration.4

At the sentencing hearings, Roselli asserted that the tax

loss was between $8,000 and $10,000. He offered several examples,

though not an exhaustive list, of tax returns that he alleged

should not have been included in the government's loss calculation.

These examples amounted to an alleged overstatement of $52,525,

bringing the tax loss down to no more than $48,999. Nevertheless,

Roselli reiterated that he would accept the Government's

Government would recommend a three level decrease if the court
finds the adjusted offense level to be 16 or greater, and would
recommend a two level decrease otherwise). This total offense
level of 13, with a criminal history category of I--which is
undisputed in this case--corresponds to a guideline range of 12-16
months in Zone D.
4
Roselli reached his calculation as follows: (1) an offense
level of 10 for a tax loss greater than $8,000 but less than
$13,500, pursuant to U.S.S.G. § 2T4.1; (2) a two level increase,
pursuant to U.S.S.G. § 2T1.4(b)(1)(B), because Roselli was in the
business of preparing tax returns; (3) a two level decrease for
acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. The
resulting total offense level of 10, with a criminal history
category of I, corresponds to a guideline range of 6-12 months in
Zone B. Pursuant to U.S.S.G. § 5C1.1(c)(3), the court could
satisfy the 6-12 month range with a sentence of probation with a
condition of home detention.

-4-
recommendation of a total offense level of 13 so long as the court

did not make a finding that the tax loss was $10,000 or more. The

Government argued that the court must make a specific finding as to

the tax loss and calculate the offense level based on that finding.

During the sentencing hearing, Roselli's counsel

explained that a tax loss finding could have harmful collateral

consequences in a subsequent deportation proceeding. Although

Roselli has lived in the United States for approximately 34 years,

he is a citizen of the United Kingdom and may be subject to

deportation if he is convicted of an "aggravated felony." 8 U.S.C.

§ 1227(a)(2)(A)(iii). The violation of 26 U.S.C. § 7206(2)is not

specifically listed as an aggravated felony, but the definition of

"aggravated felony" includes any offense that "involves fraud or

deceit in which the loss to the victim or victims exceeds $10,000."

8 U.S.C. § 1101(a)(43)(M)(i).5 If the court made an explicit

finding that the tax loss was greater than $10,000, such a finding

might be preclusive in any subsequent deportation proceeding. See,

e.g., Hammer v. INS, 195 F.3d 836, 840-41 (6th Cir. 1999) (findings

made during a denaturalization proceeding have preclusive effect in

a subsequent deportation proceeding). Roselli would then be

5
An alien may also be deported for an offense "described in
section 7201 of Title 26 (relating to tax evasion) in which the
revenue loss to the Government exceeds $10,000." 8 U.S.C. §
1101(a)(43)(M)(ii). However, because Roselli pleaded guilty to
violation of 26 U.S.C. § 7206(2) (assisting in filing a false
return), this provision apparently would not apply.

-5-
subject to deportation if the court found that a violation of 26

U.S.C. § 7206(2) fit the parameters outlined in 8 U.S.C. §

1101(a)(43)(M)(i).

After receiving supplemental briefs on the issue of the

tax loss finding, the court declined to determine whether the tax

loss was $101,524 as suggested by the Government, between $8,000

and $10,000 as suggested by Roselli, or somewhere between those two

figures. The court reasoned that if it accepted Roselli's

assertion that the tax loss was between $8,000 and $10,000, the

resulting total offense level would be 10, corresponding to a

guideline range of 6 to 12 months and a fine of between $2,000 and

$20,000. If the court accepted the Government's contention that

the tax loss was $101,524, the total offense level would be 13,

corresponding to a guideline range of 12 to 18 months and a fine of

$3,000 to $30,000. Thus, there was a point of overlap in guideline

ranges that corresponded precisely with the Government's sentencing

recommendation: 12 months of incarceration and a fine of $3,000 to

$20,000.6 The court then stated its conclusion on the tax loss

finding issue:

I'm confronted with, I think, a realistic
prospect that the tax loss could be disputed.
And the process of resolving that dispute

6
Imposition of supervised release and a special assessment are
not tied to the sentencing range, and therefore the existence of an
overlap does not affect these aspects of the sentence. See
U.S.S.G. § 5D1.1; U.S.S.G. § 5E1.3.

-6-
 would be not quite the equivalent of the trial
itself, but would be a quite demanding claim
upon the Court's resources. Here, I would
have to, I think, hear from [a witness]. I'd
have to examine a variety of different tax
returns to determine the tax loss. And there
seems to me to be no particular benefit to
doing that when we're dealing with overlapping
Guidelines. And, of course, it's particularly
the case that the Government in its plea
agreement has committed itself to making a
recommendation at that point of overlap under
the Guidelines.

Having determined that the appropriate Guidelines sentence

corresponded to a point of overlap in the two guideline sentencing

ranges suggested by the parties, the court ruled that a finding as

to the exact amount of the tax loss would "not affect sentencing"

and was therefore unnecessary. Fed. R. Crim. P. 32(i)(3)(B).7 The

court made only the general finding that the tax loss was "not less

than $8,000."

The court then considered Roselli's request for a

downward departure from the Guidelines sentence based on the harm

that his incarceration would cause to his family. Because two of

7
The court cited Fed. R. Crim. P. 32(c). However, after the
amendments to the Federal Rules of Criminal Procedure effective
December 1, 2002, the relevant language is now in Fed. R. Crim. P.
32(i)(3)(B). Rule 32(i) provides:

(3) Court Determinations. At sentencing, the court:
. . .
(B) must--for any disputed portion of the presentence
report or other controverted matter--rule on the dispute
or determine that a ruling is unnecessary either because
the matter will not affect sentencing, or because the
court will not consider the matter in sentencing . . . .

-7-
his four children suffer from cystic fibrosis (CF)8, and because

his wife suffers from several illnesses, Roselli argued that his

family members would suffer extraordinary harm if he were

incarcerated and unable to care for them. To support this

contention, he submitted letters from a doctor, two nurses, and a

social worker familiar with his children's condition and the

integral role of parental care in battling CF. He also submitted

letters from his wife, Kara, his wife's doctor, and his mother-in-

law outlining their daily home life, Kara's illnesses, and the

inability of other friends and relatives to adequately replace the

services and care that Roselli provides to both his wife and

children. The Government offered no evidence to rebut Roselli's

description of the facts. Rather, it argued that the evidence

8
In a letter submitted to the district court, Dr. Henry
Dorkin, Director of the Cystic Fibrosis Center at the Massachusetts
General Hospital, describes cystic fibrosis as

a chronic, incurable, progressive and terminal
illness of genetic origin. The basic defect
in cystic fibrosis leads to abnormalities in
several organ systems of the body, most
importantly the lungs and gastrointestinal
tract. [CF patients] develop persistent and
chronic lung infections as well as obstruction
of the airways with thick, tenacious
secretions. The effect on the lungs over time
is to develop respiratory insufficiency,
leading to eventual respiratory failure and
death. In a similar fashion, the thickened
secretions obstruct the gastrointestinal
system, impairing nutrition and leading in
some cases to growth failure.

-8-
offered by Roselli, even if true, did not meet the standard for a

downward departure based on extraordinary family circumstances.

The district court disagreed, finding that Roselli was

"irreplaceable" to his family. It granted a downward departure,

stating:

The focus, obviously, is on the family, not
the offender. And it would understate to say
that this family will be devastated in a way
that is truly extraordinary. . . . The
capacity for living that the children have
depends upon, I think, Mr. Roselli's presence.
It is exacerbated by the physical challenges
that Mrs. Roselli faces. And I believe that,
while discouraged, this ground of departure is
meant to address this extraordinary family
circumstance.

The court stated that it would "depart to a probationary sentence,"

but did not specify the extent of the departure, saying only that

it would depart "whether [the total offense level] is a 10 or 13."

The court then sentenced Roselli to a three year term of probation,

12 months to be served in home confinement, a $20,000 fine, and a

special assessment of $100.9

The Government now appeals. It first argues that the

district court was required to determine the tax loss amount and

the related offense level. It then argues that the downward

departure was unwarranted because Roselli failed to meet the

9
Pursuant to U.S.S.G. § 5B1.2(a)(1), a term of probation shall
be "at least one year but not more than five years if the offense
level is 6 or greater."

-9-
standards necessary to justify a departure for family

circumstances. We address these arguments in turn.

II.

We review de novo the district court's conclusion that it

was not required to determine the amount of tax loss and the

related offense level. See, e.g., United States v. Mateo, 271 F.3d

11, 13 (1st Cir. 2001) ("[W]e scrutinize the district court's legal

determinations (including its application of the sentencing

guidelines) de novo . . . .").

A district court does not have to determine the exact

offense level where such a determination would not affect the

court's sentencing decision under the Guidelines. See United

States v. Carrozza, 4 F.3d 70, 88 (1st Cir. 1993) ("To be sure, a

district court has inherent power not to decide disputes that are

immaterial or irrelevant to the ultimate sentence."); see also

United States v. Concemi, 957 F.2d 942, 953 (1st Cir. 1992)

(stating in dicta that any error resulting in a reduction of the

offense level, but not moving the district court's sentence outside

the relevant guideline range, would be harmless). Under certain

circumstances, the choice between two potentially applicable

offense levels does not affect a court’s sentencing decision. "[A]

sentencing court need not choose between two overlapping guideline

ranges when the same sentence would have been imposed under either

range." Carrozza, 4 F.3d at 88. See also United States v.

-10-
Bermingham, 855 F.2d 925, 931 (2nd Cir. 1988)("[D]isputes about

applicable guidelines need not be resolved where the sentence falls

within either of two arguably applicable guideline ranges and the

same sentence would have been imposed under either guideline

range.”). However, "a court may not pick a particular sentence

solely to avoid the necessity of determining the guideline

sentencing range." United States v. Ortiz, 966 F.2d 707, 718 (1st

Cir. 1992). Thus, if the district court settled on a sentence that

happened to fall at the point of overlap in the two potential

guideline ranges, it did not have to determine which offense level,

and thus which guideline range, applied to Roselli.

Prior to considering Roselli's request for a departure,

the district court adopted the Government's position that the

appropriate sentence under the Guidelines was 12 months

incarceration and a $20,000 fine. The court did not explicitly

reach this sentence prior to considering whether there was an

overlap in the sentencing ranges indicated by a total offense level

of 10 and a total offense level of 13. Nevertheless, both the

Government and Roselli suggested to the court that 12 months was

the appropriate sentence under the Guidelines. Thus, it appears

that the court settled on that sentence because of the parties'

mutual suggestion, not because it fell at a point of overlap in the

two potential sentencing ranges.

-11-
 The Government nevertheless argues that the district

court's refusal to make an exact tax loss finding was improperly

motivated by the desire to prevent Roselli from facing deportation.

See United States v. Maung, 320 F.3d 1305, 1307-10 (11th Cir. 2003)

(holding that a district court may not depart solely to minimize

the effects of a conviction on immigration proceedings). Although

the record indicates that the court was aware of the potential

collateral effects that a tax loss finding might have in a

subsequent deportation proceeding, it explicitly stated that a tax

loss finding would not affect its sentencing decision and would

waste judicial resources with unnecessary and burdensome fact-

finding. We reject the Government's challenge to the authenticity

of the court's explanation. Moreover, the court was not required

to spend its resources sorting through disputed facts merely

because a tax loss finding might prove beneficial to the government

in a subsequent deportation proceeding.

If the district court had ended its analysis after

refusing to make the tax loss finding, and had sentenced Roselli to

12 months imprisonment and a $20,000 fine, our analysis on appeal

would be complete. However, the district court's subsequent

decision to depart from the sentencing ranges indicated by the

Guidelines poses a potential problem appropriately noted by the

Government. Because the district court did not make a tax loss

finding, and thus did not determine Roselli's exact offense level,

-12-
it could not specify the degree of its departure. The Government

contends that the court's failure to specify the degree of

departure was erroneous.

We agree with the Government that, in most cases, a

district court must determine the defendant's total offense level

prior to departure so that it can specify the degree of departure.

To determine the defendant's offense level, the district court must

first undertake the largely mechanical process of applying the

Guidelines to a variety of objective factors. In a tax fraud case,

one of the objective factors necessary to determine the proper

offense level will be the amount of tax loss. See U.S.S.G. §

2T4.1. The offense level contributes to the determination of a

sentencing range, and a "court shall impose a sentence of the kind,

and within the range, [indicated by the Guidelines] unless the

court finds that there exists an aggravating or mitigating

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

consideration by the Sentencing Commission." 18 U.S.C. § 3553(b).

Thus, to carry out this analysis, a court must first determine the

proper sentencing range under the Guidelines before it can

determine whether that range is inappropriate because of factors

the Commission did not adequately account for in establishing the

Guidelines.

Although we agree with the Government that the district

court erred in failing to make a tax loss finding, we find that the

-13-
error was harmless in this case. First, the error did not affect

the sentence imposed by the district court. See Williams v. United

States, 503 U.S. 193, 203 (1992) ("[O]nce the court of appeals has

decided that the district court misapplied the Guidelines, a remand

is appropriate unless the reviewing court concludes on the record

as a whole that the error was harmless, i.e., that the error did

not affect the district court's selection of the sentence

imposed."). The district court explicitly stated that it would

impose the same sentence "whether [the total offense level] is a 10

or 13," indicating its intention to depart to a probationary

sentence regardless of the amount of the tax loss. There is no

reason to remand the case so that the district court can make a

factual determination that would have no effect on its sentencing

decision.

While the failure to make a tax loss finding did not

affect the court's sentencing decision, it did prevent the court

from specifying the offense level and the degree of its departure.

Pursuant to 18 U.S.C. § 3742(e)(3)(C), we are required to review

whether the district court's "sentence departs to an unreasonable

degree from the applicable guidelines range." See also United

States v. Bogdan, 302 F.3d 12, 16 (1st Cir. 2002) (stating that

review of a district court's decision to depart from the Guidelines

includes a review of the extent of that departure). Ordinarily, we

cannot perform this appellate function if the district court does

-14-
not specify the degree of departure. Requiring the court to

determine the total offense level prior to a departure decision

establishes a basis for the specification of a degree of departure.

Thus, in most cases, the district court must make the findings

necessary--including determining the offense level--to establish

the degree of departure. Cf. United States v. Roberson, 872 F.2d

597, 608 (5th Cir. 1989) ("Whether the court incorrectly determined

the recommended range is relevant to our review of a [departure

because a] . . . sentence that exceeds the Guidelines may look

reasonable when compared to one recommended range, but unreasonable

when compared to another.").

This case, however, presents an unusual circumstance

because the sentence imposed allows us to determine what the total

offense level and the maximum degree of departure must have been,

and hence we can review the departure decision. After departing,

the court sentenced Roselli to 12 months of probation served under

a condition of home detention. Combined with Roselli's criminal

history category of I, an offense level of 10 indicates a

sentencing range of 6-12 months of imprisonment, which falls with

Zone B of the sentencing table. Pursuant to U.S.S.G. §

5C1.1(c)(3), if the sentencing range falls within Zone B the court

may order the defendant to serve the required term as probation

with a condition of home detention rather than as a term of

imprisonment. Thus, Roselli's sentence after departure is

-15-
consistent with the maximum term allowed by an offense level of 10,

served as probation with a condition of home detention pursuant to

§ 5C1.1(c)(3).

Roselli's sentence after departure is not consistent with

an offense level of less than 10. An offense level of 9 indicates

a sentencing range of only 4-10 months. Offense levels of less

than 9 carry a maximum term of six months. Thus, Roselli's

sentence of 12 months of home detention exceeds the sentencing

guideline range authorized by any offense level below 10.

Similarly, Roselli's sentence after departure is not

consistent with an offense level of greater than 10. The

sentencing ranges indicated by offense levels of 11 or 12 fall into

Zone C. Pursuant to U.S.S.G. § 5C1.1(d), a defendant whose offense

level places him in Zone C must serve at least half of his term in

prison.10 Sentencing ranges indicated by offense levels of 13 or

greater fall into Zone D. Defendants in Zone D, pursuant to

U.S.S.G. § 5C1.1(f), must serve their entire term in prison.

Roselli's sentence of 12 months of probation with the condition of

home detention would not be available under any offense level that

indicated a sentencing range in Zone C or D.

10
The other half of the term may be served as supervised
release with a condition of home detention or community
confinement.

-16-
 The district court imposed a sentence that is consistent

only with an offense level of 10. We can therefore narrow our

inquiry regarding the degree of departure. If the district court

had decided the tax loss question, and had agreed with the

Government's contention that the tax loss was equal to $101,524, it

would have applied to Roselli a total offense level of 13. The

Government did not argue, and there is no evidence in the record to

suggest, that the tax loss was greater than $101,524. Therefore,

the maximum offense level that the district court could have

applied to Roselli was 13. Because the court departed to a

sentence that is consistent only with an offense level of 10, the

maximum level of departure in this case was three levels, from an

offense level of 13 to an offense level of 10.

The Government correctly points out that, if the district

court had made a finding as to the tax loss, it might have found

that the correct tax loss figure was somewhere between $10,000 and

$101,524. Thus, the court might have determined that the correct

total offense level was 11 or 12, necessitating a departure of only

1 or 2 levels to achieve an offense level of 10. Indeed, if the

district court had agreed with Roselli's contention that the tax

loss was less than $10,000, it could have sentenced Roselli in

-17-
accordance with an offense level of 10 without making any

departure.11

Under different circumstances, this uncertainty about the

level of departure might prevent us from properly reviewing the

extent of the departure and require us to remand the case to the

district court. In this case, however, the district court imposed

a sentence that is consistent only with an offense level of 10. We

can therefore determine that the maximum degree of departure is

three levels. Obviously, if the record justifies a three level

downward departure for extraordinary family circumstances, it would

also justify a lesser departure.12 Therefore, we turn to the merits

of the departure for extraordinary family circumstances.

11
Notwithstanding the possible immigration consequences of
certain tax loss findings, Roselli was arguably disadvantaged in
this proceeding by the court's refusal to make a loss finding. If
Roselli had prevailed in his view of the tax loss, a downward
departure based on extraordinary family circumstances would have
been unnecessary to reach a sentence of probation. As the court
proceeded, however, Roselli was forced to argue for a rare and
discouraged form of departure from the Guidelines.
12
Contrary to the Government's assertion, our decision does not
conflict with United States v. Carrozza, 4 F.3d 70 (1st Cir. 1993).
In Carrozza, there was no point of overlap between the two possible
sentencing ranges. Rather than determine which offense level, and
therefore which sentencing range, was correct, the district court
settled on a sentence between the two ranges. Thus, on appeal, we
could not determine whether the court had departed upward or
downward to reach the sentence it imposed. In this case, the
district court determined that the proper sentence under the
Guidelines was at a point of overlap in the two possible sentencing
ranges, and we can determine that the maximum degree of downward
departure was three levels. Thus, unlike Carrozza, we are able to
adequately review the degree of departure.

-18-
 III.

We apply a three part analysis to review of departures:

"(1) we determine whether the stated ground for departure is

theoretically permissible under the guidelines; (2) if so, we

examine the record to assess whether there is adequate factual

support; and (3) we determine the appropriateness of the degree of

departure." Bogdan, 302 F.3d at 16. We review part one of the

test de novo. United States v. Bradstreet, 207 F.3d 76, 81 (1st

Cir. 2000). Pursuant to the PROTECT Act, Pub. L. No. 108-21, 117

Stat. 650, we review part two of this test de novo for all appeals

pending on or filed after April 30, 2003. See United States v.

Thurston, 358 F.3d 51, 70-71 (1st Cir. 2004). The PROTECT Act did

not alter our review of the extent of departures, and we therefore

continue to review part three of the test only for abuse of

discretion. Id. at 70-71; see also Koon v. United States, 518 U.S.

81, 96-97 (1996).

A court must impose a sentence within the range

prescribed by the guidelines "unless the court finds that there

exists an aggravating or mitigating circumstance of a kind, or to

a degree, not adequately taken into consideration by the Sentencing

Commission in formulating the guidelines that should result in a

sentence different from that described." 18 U.S.C. § 3553(b). To

warrant a departure, a circumstance must "render the case atypical

and take it out of the 'heartland' for which the applicable

-19-
guideline was designed." United States v. Carrion-Cruz, 92 F.3d 5,

6 (1st Cir. 1996). Among potential factors justifying a departure,

a "discouraged factor" is one "'not ordinarily relevant in

determining whether a sentence should be outside the applicable

guideline range.'" United States v. Mejia, 309 F.3d 67, 70 (1st

Cir. 2002)(quoting U.S.S.G. § 5, part H, intro. cmt.). "The

Sentencing Guidelines deem family circumstances a 'discouraged'

ground for departure, and a district court may depart on the basis

of a discouraged ground only in an 'exceptional' case." United

States v. Louis, 300 F.3d 78, 81-82 (1st Cir. 2002); see also

U.S.S.G. § 5H1.6; United States v. Pereira, 272 F.3d 76, 80 (1st

Cir. 2001).

We have affirmed departures for exceptional family

circumstances only on rare occasions, noting that "time-consuming

family responsibilities, by themselves, are not sufficient to take

a case out of the 'heartland.'" Pereira, 272 F.3d at 80. In

United States v. Carr, 932 F.2d 67, 72-73 (1st Cir. 1991), we

reversed a downward departure based on family circumstances

because, even though Carr and her husband both faced prison terms,

their 4-year-old child could be cared for by Carr's mother during

their incarceration. In United States v. Chestna, 962 F.2d 103

(1st Cir. 1992), we found that incarcerating a single mother of

four young children (aged thirteen, eleven, four, and less than

one) would not cause the exceptional family hardship required to

-20-
depart from the guidelines because "single mother status is not an

idiosyncratic circumstance. . . ." Id. at 107 (internal quotation

marks omitted). In Pereira, we vacated a departure based on the

defendant's role in caring for his elderly parents because the

defendant did not provide specialized care, his siblings were

available to help with the parents' care, and home nursing services

provided an adequate alternative during the period of the

defendant's incarceration. 272 F.3d at 82-83. See also United

States v. Sweeting, 213 F.3d 95, 104-05 (3rd Cir. 2000)(departure

not appropriate for a single mother of five children, one of whom

had Tourette Syndrome, where the care provided by the mother was to

engage in daily exercise with the child, to help him keep his

school and home tasks organized, to administer his medicine when

necessary, and to remove certain foods from his diet).

Nevertheless, we have upheld departures in limited

circumstances where a defendant was so irreplaceable that

incarceration would cause exceptional hardship to his family. In

United States v. Sclamo, 997 F.2d 970, 974 (1st Cir. 1993), we

affirmed a departure where the defendant's stepson, who suffered

from a psychiatric disorder and had a long history of aggressive

and disruptive behavior, was making dramatic progress largely

because of the support and care of the defendant. In that

circumstance, the defendant's important role could not practically

have been filled by any other person. In United States v. Rivera,

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994 F.2d 942, 952-54 (1st Cir. 1993), we ruled that the district

court might justifiably depart on remand where defendant was the

single mother of three young children, received income only from

welfare, and had virtually no contact with or support from other

family members. This combination of factors might be enough, on a

closer review of the facts, to render the defendant irreplaceable

to her young children. See also United States v. Haversat, 22 F.3d

790, 797 (8th Cir. 1994)(upholding departure because defendant's

wife suffered from a severe psychiatric disorder and defendant was

needed to "identify the beginning of any regression and to seek out

immediate treatment to avoid 'a serious situation.'").

A downward departure for extraordinary family

circumstances may be appropriate where the care provided by the

defendant is "irreplaceable or otherwise extraordinary." Pereira,

272 F.3d at 82. This standard requires the district court to

determine whether "there are feasible alternatives of care that are

relatively comparable to what the defendant provides." Id.

(emphasis added). Thus, a downward departure is appropriate if the

defendant's role "is so different in kind or degree from the many

kinds of support that can be important in the [family] relationship

that it makes the family ties and responsibilities factor . . .

exceptional." Louis, 300 F.3d at 82.

This case presents an exceptional situation. Roselli has

four children, each of whom is under the age of 10. Two of the

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children--Antonio, age 9, and Adyn, age 1--suffer from CF. Caring

for Antonio and Adyn requires extensive time and effort by both

Roselli and his wife, Kara. Antonio must visit his pulmonary

doctor at least six times per year and has been hospitalized three

times in the past four years. After each hospitalization,

Antonio's parents must administer intravenous antibiotics three

times a day--with each session lasting approximately one hour--for

three weeks. Antonio requires a special diet which must be

prepared separately from the other children's meals. Each morning

and evening, Antonio must undergo 30 minutes of closely monitored

treatment to combat bacteria that causes deterioration of the

lungs. The parents also administer several other prescription

medications each morning, taking approximately 20 minutes, and

monitor Antonio's chest therapy for 30 to 40 minutes each evening.

Finally, Roselli helps Antonio with his studies and ensures that he

maintains the level of physical activity prescribed by his doctors

by jogging with him, coaching his baseball and football teams, and

transporting him to gymnastics and soccer practice.

Caring for Adyn requires even more attention and effort.

In addition to CF, Adyn suffers from gastroesophageal reflux

disease (GERD), which makes it extremely difficult for him to

consume and digest food. Doctors have installed a feeding tube to

ensure that he gets the nourishment he needs to battle his CF.

Roselli and his wife give Adyn three meals a day via "bolus

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feeding," a process whereby Adyn receives formula through a test-

tube like apparatus attached to his feeding tube. This process

requires both parents: Kara conducts the feeding while Roselli

holds Adyn upright to minimize the chance of vomiting or choking.

Each feeding lasts approximately 45 minutes, requiring significant

strength and endurance to keep Adyn in an upright position.

Roselli has developed a work schedule that allows him to be home

during the morning and to be present for most of Adyn's bolus

feedings. At night, Adyn's feeding tube is attached to a food

pump, which provides both nourishment and most of his medication,

for eight to ten hours. Because Adyn must tolerate this method of

feeding while lying on his back, Roselli and his wife must check

the feeding tube intermittently throughout the night to ensure that

Adyn does not choke or vomit. Both parents are trained to reinsert

the feeding tube if it should accidentally be dislodged. If the

tube is not reinserted within an hour after coming loose, Adyn

would require surgery. Roselli also administers several

medications to Adyn each morning and cleans his feeding tube daily

to prevent infections.

Comparable alternatives to Roselli's care are, for

practical purposes, nonexistent. Kara cannot care for the children

herself, largely because of her own health problems. She suffers

from fibromyalgia, a chronic condition that causes pain in the soft

tissue and joints throughout her body. The effects can be so

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debilitating that they prevent her from completing simple physical

tasks. Other symptoms of her condition include severe fatigue,

irritable bowel syndrome, numbness in her hands and feet,

difficulty sleeping and concentrating, memory lapses, and feeling

overwhelmed when faced with multiple tasks. She also suffers from

chronic migraine headaches, for which she has sought emergency room

treatment on several occasions. Finally, Kara has been diagnosed

with depression and anxiety. She takes a variety of medications to

control each of these illnesses.

Roselli's relatives are unable to provide adequate

assistance. Kara's mother lives more than one hour away and cares

for two terminally ill sons, as well as her husband who suffers

from prostate cancer. Roselli's mother is 74 years old and has

difficulty walking because of her arthritis. Roselli's sister is

the only other family member who lives in Massachusetts, and she

cares for three children of her own.

In-home health care also does not provide a viable

alternative to Roselli's presence. To replace the care that

Roselli provides, the family would have to hire a nurse--or likely

several nurses working in shifts--on a 24 hour-a-day, seven days-a-

week basis. They would have to be trained to provide the special

care that Adyn requires, including bolus feeding and the overnight

feeding system. Even in the event that such care were available

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and not prohibitively expensive, it would not fulfill Roselli's

role in Antonio's exercise regimen and schoolwork.

Finally, emotional support is an important factor under

these circumstances. The letter from CF specialist Dr. Dorkin

states that "[h]aving one child with CF can be overwhelming for

many families. To have two such children can be devastating. . .

. Only the ability to have [Mr. Roselli] share in the care of the

children has kept the children out of the hospital." He further

states that removal of their father from the home "will contribute

to a more rapid course in [the children's] deterioration." A

letter from Kara's doctor states that "I have no doubt that if

[Roselli] is removed from the home and Kara is left with sole

responsibility for caring for her children, Kara's stress and

activity levels would be substantially increased, in turn leading

to an overall decline in her own health as well as her ability to

care for her children." While doubtless the incarceration of a

parent can in many ordinary cases have an unfortunate emotional

effect on other family members, this case is exceptional in that,

besides the emotional impact upon remaining family members, the

removal of Roselli's critical services from his home will impact

severely upon the physical well-being and even the ability to

survive of those left behind.

In Rivera, we wrote that "at some point, the nature and

magnitude of family responsibilities (many children? with

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handicaps? no money? no place for children to go?) may transform

the 'ordinary' case . . . into a case that is not at all ordinary."

994 F.2d at 948. Roselli's family circumstances move this case

well outside the ordinary range. Under these circumstances, where

two children require specialized round-the-clock care because of

CF, where adequate help is not readily available, and where the

other parent is battling her own debilitating health problems, a

three level downward departure for extraordinary family

circumstances is entirely appropriate. The judgment of the

district court is AFFIRMED.

So ordered.

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