United States v. Rostoff

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

No. 93-1376

UNITED STATES OF AMERICA,

Appellant,

v.

STEVEN M. ROSTOFF, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Torruella, Chief Judge,

Selya and Stahl, Circuit Judges.

Peter A. Mullin, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, and Jonathan L. Kotlier,

Assistant United States Attorney, were on brief for the United
States.
Roger A. Cox for defendant Steven M. Rostoff; Michael J.

Traft, with whom Carney & Bassil was on brief, for defendant

David Rostoff; Erica M. Foster, with whom Foster and Peterson was

on brief, for defendant James Harris; Thomas M. Hoopes for

defendant Dolores DiCologero; and William A. Brown for defendant

Paul J. Bonaiuto.

April 24, 1995

SELYA, Circuit Judge. In this case, the district court
SELYA, Circuit Judge.

departed downward from the guideline sentencing range (GSR) as to

each of five defendants on the theory that the harm attributed to

them, measured by the amount of loss sustained by the victim,

overstated the seriousness of the offense of conviction. The

government now asks us to evaluate both the lawfulness of the

downward departures and the propriety of the court's role-in-the-

offense adjustments for two defendants, David and Steven Rostoff.

We uphold the sentences of all defendants except the Rostoffs

(who must be resentenced as a result of erroneous role

determinations).

I. BACKGROUND
I. BACKGROUND

A federal grand jury indicted the brothers Rostoff,

together with James Harris, Dolores DiCologero, and Paul J.

Bonaiuto, on charges, inter alia, of conspiracy, bank fraud, and

the making of false statements. See 18 U.S.C. 371, 1344, and

1044. These charges stemmed from a failed foray into the New

England condominium market a market that rose to giddy heights

in the mid-to-late-1980s and then plunged precipitously.

The conspiracy count constituted the hub of the

indictment. In it, the grand jury charged that, from December

1985 to February 1989, the defendants, aided and abetted by

others, fraudulently induced a federally insured financial

institution, the Bank for Savings (the bank), to grant several

hundred loans, totalling in excess of $30,000,000, to persons

purchasing condominium units from David Rostoff, Steven Rostoff,

2

and James Harris (collectively, "the Rostoff group" or "the

developers"). Like spokes running from the hub, 43 of these

loans gave rise to 86 "mirror image" bank fraud and false

statement counts against various defendants.

The trial jury plausibly could have found that the

scheme tracked the following script. The bank had a firm policy

of refusing to grant first mortgage loans in excess of 80% of the

lower of the sale price or the appraised value of residential

real estate; and, when mortgages were written on that basis, the

bank ordinarily required the balance of the purchase price to be

paid in cash by the borrower. In 1986, bank officials, eager to

maintain a lucrative working relationship with the Rostoff group,

bent the rules. The bankers allowed the developers to assist

common customers (i.e., persons who bought condominiums from the

Rostoff group and financed the purchases through the bank) in an

uncommon way: by taking back second mortgages to circumvent the

cash down-payment requirement. The bankers conditioned this

concession on the express understanding that the second mortgages

would be enforced, and that each purchaser would make at least a

10% down payment from his or her own capital.

This arrangement proved too tame for the developers'

purposes. To facilitate sales, they cooked the books,

surreptitiously telling selected buyers that they would not

enforce the second mortgages, or, alternatively, that they would

not demand interest payments on particular second mortgages until

resale of the encumbered condominiums. More importantly, the

3

developers set out to subvert the down-payment requirement by

orchestrating a paper shuffle designed to create the (false)

impression that the buyers were putting 10% down in order to

acquire the properties, when they were not. In many instances,

the developers accomplished this sleight of hand by offering

customers a 10% discount from the stated purchase price. When a

customer agreed to buy at the reduced price, the developers

submitted documents to the bank that overstated the actual

purchase price by 10% and treated the negotiated discount as a

down payment. This flim-flam took on added significance because

the bank underwrote the loans on the basis of an 80% loan-to-

value (LTV) ratio, using purchase price as a principal measure of

value. Thus, an inflated purchase price often caused the bank to

approve a higher first mortgage loan than would have been

forthcoming had it known the true purchase price. In the end,

many buyers acquired condominiums without making any down payment

or other cash expenditure (except for closing costs).

The bank's closing attorney, defendant Bonaiuto, and

the manager of the bank's mortgage department, defendant

DiCologero, knowingly participated in fabricating this tissue of

lies, half-truths, and evasions. Between September 1986 and

February 1989, the bank engaged Bonaiuto to close at least 240

loans to the developers' customers. Although no fewer than five

borrowers testified at trial that they asked Bonaiuto about

apocryphal deposits shown on their settlement sheets, he did not

4

notify the bank of any discrepancies.1 DiCologero also worked

closely with the developers, handling the day-to-day

administration of the loan approval process. The prosecution

proved her awareness of the ongoing scheme largely by

circumstantial evidence.2

Following a lengthy trial, a jury found each of the

five defendants guilty of conspiracy to defraud the bank. In

addition, the jury found Steven Rostoff guilty on a total of 72

"mirror image" counts of bank fraud and making false statements

(representing 36 transactions), David Rostoff guilty on 32 such

counts (representing 16 transactions), Harris guilty on 52 such

counts (representing 26 transactions), Bonaiuto guilty on 10 such

counts (representing five transactions), and DiCologero guilty on

two such counts (representing one transaction).

On January 29, 1993, the district court convened a

1We note two related facts. First, after investigators
discovered the fraud, Bonaiuto falsely asserted that he had
queried borrowers about the deposits shown on the settlement
sheets, and that they had assured him that they had made the
indicated down payments. Second, Bonaiuto also acted as closing
attorney for the bank in connection with his own purchase of two
condominium units from the Rostoff group. On each occasion, he
submitted a settlement sheet to the bank showing that he had
tendered a 10% down payment when, in fact, he had made no down
payment at all.

2One vignette is particularly telling. On July 23, 1987,
DiCologero's husband closed a mortgage loan at the bank in order
to finance his purchase of a condominium from the Rostoff group.
The settlement statement falsely indicated that a $7,700 deposit
had been made when, in fact, DiCologero's husband had purchased
the condominium with no cash down payment (advancing only
$1,663.40 in closing costs). The record shows that DiCologero
shepherded the loan through the bank's approval process.

5

disposition hearing.3 By then, the bank had become insolvent,

and the Federal Deposit Insurance Corporation (FDIC) had become

the receiver. The court determined that the FDIC sustained

losses due to the defendants' activities in the

$2,000,000 $5,000,000 range. The court then calculated the

offense level of all defendants except DiCologero on the basis of

this loss computation, see U.S.S.G. 2F1.1(b)(1)(K) (providing a

10-level enhancement for fraud crimes involving losses of more

than $2,000,000, up to and including $5,000,000), arriving at an

adjusted offense level (OL) of 20 for the Rostoff brothers and

Bonaiuto, and 18 for Harris. The court attributed slightly under

$1,000,000 in losses to DiCologero and, after other interim

adjustments, settled on an OL of 18. The court factored in the

defendants' criminal history scores all were first offenders

and arrived at a GSR of 33-41 months at OL-20 and a GSR of 27-33

months at OL-18. Finding, however, that in each instance the

amount of loss overstated the seriousness of the particular

3The jury convicted the defendants on a count that charged a
conspiracy beginning in 1985 and continuing into 1989. It is
well established that the sentencing guidelines apply to offenses
that straddle the effective date of the guidelines (November 1,
1987). See United States v. David, 940 F.2d 722, 739 (1st Cir.),

cert. denied, 502 U.S. 989 (1991). Even in such cases, however,

the guidelines in effect at the time of sentencing, not those in
effect at the tag end of the offense, ordinarily control at
sentencing, except where ex post facto concerns loom. Cf., e.g.,

United States v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir.

1990). The district court, invoking this exception, applied the
November 1987 version of the guidelines. No party questioned
that choice below, and no party asks us to revisit it on appeal.
Since we follow the district court's lead, all references herein
are to the November 1987 edition of the guidelines unless
otherwise specifically indicated.

6

defendant's criminality, Judge Zobel departed downward. She

sentenced David and Steven Rostoff to serve 15-month terms of

immurement; sentenced Harris to a nine-month prison term;

sentenced Bonaiuto to two years probation, six months of which

was to be served in a community treatment center; and sentenced

DiCologero to two years of straight probation. This appeal

followed.

II. THE DOWNWARD DEPARTURES
II. THE DOWNWARD DEPARTURES

In sentencing under the guidelines, departures are the

exception rather than the rule. See United States v. Diaz-

Villafane, 874 F.2d 43, 52 (1st Cir.), cert. denied, 493 U.S. 862

(1989). When a district court nonetheless departs, and an appeal

eventuates, we ask three general questions: (1) Is the reason

that the sentencing court gave for departing of a type that

lawfully can ground a departure in an appropriate case? (2) Is

the court's factfinding in respect to the cited reason

sustainable on whole-record review? (3) Is the degree of the

departure reasonable? See United States v. Mendez-Colon, 15 F.3d

188, 189 (1st Cir. 1994); United States v. Rivera, 994 F.2d 942,

950-52 (1st Cir. 1993); Diaz-Villafane, 874 F.2d at 49. A

departure passes muster only if all three inquiries yield an

affirmative response.

In this case, the government asserts that the lower

court erred at each step along the departure path. We trace the

contours of the court's decision and then address the three

7

relevant questions.4

A. The Anatomy of the Departure Decision.
A. The Anatomy of the Departure Decision.

In fraud cases controlled by the guidelines, the amount

of the victims' monetary loss (actual or intended) is a proxy for

the seriousness of the offense, and, thus, a key determinant of

the severity of the perpetrator's sentence. See United States v.

Lilly, 13 F.3d 15, 17, 19 (1st Cir. 1994); United States v.

Tardiff, 969 F.2d 1283, 1285 (1st Cir. 1992). Recognizing,

however, that no proxy is perfect, the applicable edition of the

sentencing guidelines cautions that:

In a few instances, the total dollar loss
that results from the offense may overstate
its seriousness. Such situations typically
occur when a misrepresentation is of limited
materiality or is not the sole cause of the
loss . . . In such instances, a downward
departure may be warranted.

U.S.S.G. 2F1.1, comment. (n.11) (Nov. 1987).

The defendants in this case all moved for downward

departures based on application note 11. The district court

accommodated their requests, linking its largesse to a linchpin

finding that numerous factors, apart from the defendants'

conduct, inflated the losses sustained by the FDIC. The court

premised its linchpin finding primarily on three subsidiary

findings. (1) The court remarked the bank's gadarene rush to

participate in the condominium boom despite the obvious risks.

4Inasmuch as the Rostoffs must be resentenced for other
reasons, see infra Part III, we limit our departure inquiry to

the sentences imposed upon Harris, DiCologero, and Bonaiuto,
respectively.

8

To the court's way of thinking, this overeagerness was driven by

greed after all, the bank based incentive compensation for top

officials on loan production and fomented a "lend at all costs"

mentality that led senior managers to condone the defendants'

shenanigans. The court expressed great skepticism about senior

management's professed lack of knowledge or responsibility,

concluding that, at the very least, management had acted

negligently, particularly in authorizing loan approvals, and had

bent its policies grotesquely to retain the Rostoff group's

business. In the court's view, these shortcomings contributed

mightily to the extent of the eventual losses. (2) Next, the

court found that the buyers were neither dupes nor victims in the

traditional sense. To the contrary, the court thought they had

become willing participants in the defendants' scheme. Their

cupidity drove up prices in the condominium market and, thus,

contributed substantially to the amount of money eventually lost.

(3) Finally, the court observed that economic forces not under

the control of, or precipitated by, the defendants, especially

the sudden, unforeseen collapse of the New England real estate

market a collapse that decimated the demand for residential

condominiums increased the magnitude of the losses.

The district court believed that these factors, in

combination, contributed so directly to the extent of the loss

that the defendants were entitled to a substantial measure of

relief. In the sections that follow, we test the legal and

factual sufficiency of the court's stated ground. Finally, we

9

examine the reasonableness of the actual departures insofar as

they affect Harris, DiCologero, and Bonaiuto.

B. Step One: The Court's Reason.
B. Step One: The Court's Reason.

While the government assails the departure decision on

all available fronts, its fundamental point is that, as a matter

of law, the guidelines simply do not authorize departures under a

"multiple loss causation" theory. Since this assertion questions

whether the departure-justifying reason cited by the court below

is of a kind that the guidelines, in principle, permit a

sentencing court to embrace for that purpose, we afford plenary

review. See Rivera, 994 F.2d at 951; Diaz-Villafane, 874 F.2d at

49.

In evaluating multiple loss causation as a departure-

justifying circumstance, we do not write on a pristine page. In

United States v. Gregorio, 956 F.2d 341 (1st Cir. 1992), we

approved the manner in which the district court, acting under the

general fraud guideline, U.S.S.G. 2F1.1, structured its downward

departure to "reflect[] `multiple causation' for victim loss."

Id. at 344. Although the "sufficiency of the basis for departing

in response to multiple causation of victim loss" was not at

issue on that occasion, id. at 347 n.10, we stated unambiguously

that "`multiple causation' of victim loss is a `Commission-

identified' circumstance in which a downward departure may be

warranted." Id. at 347. We do not believe that these words,

even if technically dictum, can be read other than as an outright

endorsement of multiple loss causation as a permissible basis for

10

departing downward, and, indeed, as a departure-justifying reason

that the guidelines encourage. See generally Rivera, 994 F.2d at

948 (explaining that the guidelines sometimes "offer the district

court, which is considering whether to depart, special

assistance, by specifically encouraging" certain types of

departures).

Despite the plain import of Gregorio, the government

maintains that multiple loss causation is an invalid basis for a

downward departure. Gregorio is irrelevant here, the government

says, because the Gregorio court had before it the November 1990

version of the guidelines, which, like the original (1987)

version, authorized departures when "the total dollar loss that

results from the offense [overstates] its seriousness," such as

when "a misrepresentation . . . is not the sole cause of the

loss." 956 F.2d at 345 (citing November 1990 version of

application note 11).5 In the government's view, time has

passed Gregorio by, for the Sentencing Commission rewrote the

application notes to section 2F1.1 effective November 1, 1991,

consolidating several preexisting notes into a new note 10. In

the process, the Commission eliminated any reference to "the sole

cause of the loss" language.6 The government proceeds to weave

5The November 1990 version of application note 11 is
identical to the 1987 version and, thus, controls in this case.
See supra note 3.

6The new note reads in pertinent part:

In cases in which the loss . . . does not
fully capture the harmfulness and seriousness
of the conduct, an upward departure may be

11

a tapestry from several gossamer strands of speculation and

surmise, hypothesizing that the Commission, recognizing that it

had improvidently promulgated former note 11, acknowledged the

error of its ways and junked the original reference. Using this

hypothesis as a springboard, the government then jumps to the

conclusion that the Commission, in essaying the revision, tacitly

rejected multiple loss causation as an appropriate factor in the

departure calculus.

We need not resolve the issue of whether the

Commission, in revising the application notes in a way that

dropped the "sole cause of the loss" language, intended to drum

multiple loss causation out of the ranks of encouraged

departures. To avoid ex post facto difficulties, courts should

"normally apply [guideline] amendments retroactively only if they

clarify a guideline, but not if they substantively change a

guideline." United States v. Prezioso, 989 F.2d 52, 53 (1st Cir.

1993); accord Isabel v. United States, 980 F.2d 60, 62 (1st Cir.

1992). This rule stymies the government in this instance. If,

on the one hand, as the government argues, the Commission's

rewriting of the application notes bars downward departures

premised on multiple loss causation, then that revision cannot be

warranted. . . . In a few instances, the
loss . . . may overstate the seriousness of
the offense. This may occur, for example,
where a defendant attempted to negotiate an
instrument that was so obviously fraudulent
that no one would seriously consider honoring
it.

U.S.S.G. 2F1.1 comment., n.10 (Nov. 1991).

12

applied retroactively for doing so would change the substance of

the fraud guideline, U.S.S.G. 2F1.1, as that guideline was

explicated in Gregorio. See Prezioso, 989 F.2d at 54

(explaining that a new interpretation of a guideline that

contradicts existing circuit precedent "alters the guideline"

and, hence, constitutes a substantive change that can only apply

prospectively). If, on the other hand, the revision does not bar

downward departures for multiple loss causation, then the

district court's selection of multiple loss causation as its

departure-justifying ground is, under Gregorio, unimpugnable.

Consequently, we hold that, under the original pre-1991

version of the guidelines the version that controls here the

district court permissibly singled out multiple loss causation as

a departure-justifying circumstance.7

C. Step Two: The Factual Predicate.
C. Step Two: The Factual Predicate.

Since the lower court isolated a conceptually proper

departure-justifying circumstance, the second step of the review

process looms. At this stage, we must determine whether, on the

whole record, the court supportably could have found that the

departure-justifying circumstance actually existed. See Diaz-

7The government also suggests, in what it bills as a
separate argument, that the district court improperly relied on
the conduct of the bank and of the buyers as a basis for
departing. At bottom, however, this suggestion is predicated on
the government's assertion that it is improper to focus on any

causes of the loss apart from the conduct of the defendants. As
we have pointed out, such a position is inconsistent with both
the unambiguous language of the original commentary that
accompanied section 2F1.1 and the clear import of existing
circuit precedent. Hence, the government's "separate" suggestion
adds nothing to its flagship argument.

13

Villafane, 874 F.2d at 49. Because this determination implicates

the court's factfinding, our standard of review is deferential.

See id. (explaining that the findings of fact underlying a

departure decision "may be set aside only for clear error").

Aside from the defendants' actions, the district court

identified three factors that contributed to the magnitude of the

loss in this case: (1) the conduct of the bank's senior

management; (2) the buyers' esurience; and (3) the nosedive in

condominium prices. The government does not seriously dispute

either the incidence of these factors or their aggravating effect

upon the amount of loss.8 Instead, the government asserts that

the court clearly erred in finding an overstatement because the

loss figures that the court used for sentencing purposes

represented only a fraction of the actual losses caused by the

defendants' criminal activity.

This argument will not wash. Calculating the amount of

loss for purposes of the sentencing guidelines is more an art

than a science. Courts can, and frequently do, deal with rough

8At any rate, the record buttresses the district court's
conclusions. The evidence establishes that bank officials
approved myriad loans, totalling millions of dollars, with an
abandon commonly associated with drunken sailors. In the
bargain, senior management routinely authorized loans that
exceeded the bank's LTV ratio, backdated documents, and acted, to
use the government's phrase, in an "incredibly negligent"
fashion. The evidence also shows that many of the purchasers
were sophisticated investors who, enthralled by gimmicks like the
phantom down-payment concept, bought multiple properties. As
sophisticated investors surely should know, projected profits
that look too good to be true often are and often signify the
presence of great financial hazards. Finally, an economist's
affidavit, introduced at sentencing, graphically illustrates the
extent to which the bottom fell out of the condominium market.

14

estimates. See United States v. Skrodzki, 9 F.3d 198, 203 (1st

Cir. 1993); see also U.S.S.G. 2F1.1, comment., n.8 (stating that

"the loss need not be precise," so long as the court "make[s] a

reasonable estimate of the range of loss, given the available

information"). Hence, a party dissatisfied with the sentencing

court's quantification of the amount of loss in a particular case

must go a long way to demonstrate that the finding is clearly

erroneous. See Skrodzki, 9 F.3d at 203; Tardiff, 969 F.2d at

1288.

Here, the court computed the amount of loss based on 43

loans that were specifically enumerated in various substantive

counts of the indictment, plus an additional 97 loans that the

Federal Bureau of Identification (FBI) had classified as

fraudulent. The court then excluded from its loss calculation

for each defendant any loan that formed the basis for a specific

count on which he or she had been acquitted. In restricting her

computations to these 140 loans, the judge relied on an affidavit

subscribed to by an FBI case agent, who reviewed the bank's

records and culled out loans for which he found "specific

evidence of fraud."

Bearing in mind the wide berth that sentencing judges

must be given in determining what information is, or is not,

sufficiently reliable to be used in imposing sentence, see

Tardiff, 969 F.2d at 1287, we cannot say that Judge Zobel's

refusal to venture beyond these 140 loans constituted clear error

especially since the record contains only sketchy information

15

about the origin and extent of losses on other loans. Nor can we

say that the judge erred in excluding "acquitted" loans.

Although relevant conduct must be determined by the court, not

the jury, see, e.g., United States v. Tavano, 12 F.3d 301, 306

(1st Cir. 1993); United States v. Mocciola, 891 F.2d 13, 17 (1st

Cir. 1989), we believe the evidence here falls well short of

compelling a finding that any "acquitted" loans must be included

in calculating the amount of loss.

Because the record adequately supports the district

court's findings as to both multiple loss causation and amount of

loss indeed, the government has shown us nothing that casts

serious doubt on the plausibility of the court's findings in

either respect we conclude that the departure decision passes

muster at step two.

D. Step Three: Reasonableness.
D. Step Three: Reasonableness.

We come now to the final step in the review process,

focusing on whether the "direction and degree of departure" are

reasonable. Diaz-Villafane, 874 F.2d at 49. The government says

that the district court stumbled at this step by failing to

explain how it arrived at such sizable sentence reductions and by

exhibiting unreasonable leniency. We turn first to the absence

of a particularized explanation of how the district court

determined the extent to which it would depart.

1. The Need for Findings. In United States v. Emery,
1. The Need for Findings.

991 F.2d 907, 913 (1st Cir. 1993), we held that it is not

necessary for a district court to "dissect its departure

16

decision, explaining in mathematical or pseudo-mathematical terms

each microscopic choice made in arriving at the precise

sentence." We opted instead for a pragmatic approach,

recognizing the helpfulness of explanations but cautioning that

"when the court has provided a reasoned justification for its

decision to depart, and that statement constitutes an adequate

summary from which an appellate tribunal can gauge the

reasonableness of the departure's extent, it has no obligation to

go further and attempt to quantify the impact of each incremental

factor on the departure sentence." Id. This approach reflects

our view that judicial discretion, sensibly exercised, is in most

cases the critical determinant of the degree of departure. See

United States v. Aymelek, 926 F.2d 64, 70 (1st Cir. 1991)

(holding that, in respect to unguided departures, "a sentencing

court need not resort at all to analogies"); Diaz-Villafane, 874

F.2d at 51-52 (disavowing any intention to reduce departure

decisions to exercises in "mechanistic bean-counting").

This approach is not discredited by cases such as

United States v. Rosales, 19 F.3d 763 (1st Cir. 1994). There,

the district court gave only a terse summary of its reasons for

departing, and offered no insight into how it settled upon the

degree of departure. On appeal, this paucity of information

compromised our ability to assess the departure's reasonableness

and necessitated a new sentencing proceeding. See id. at 770.

To be on the safe side, a sentencing judge should

always endeavor to explain the extent of a departure. Yet judges

17

are human, and, like other human beings, they will sometimes fail

to dot every "i" and cross every "t." When such a slip occurs

and a sentencing court neglects to explain how it fixed the

extent of a departure, no bright-line rule obtains. Such

situations must be handled on a case by case basis. The bottom

line is that we eschew a purely mechanical test one that merely

asks whether or not the sentencing court has made findings

explaining the degree of departure in favor of a practical one

one that asks more broadly whether or not the sentencing court

has supplied the appellate panel with sufficient information to

enable it to determine the reasonableness of the departure. See,

e.g., United States v. Quinones, 26 F.3d 213, 219 (1st Cir. 1994)

(stating that the court of appeals will overlook the omission of

an explicit explanation anent the scope of a departure "if the

reasons for the judge's choice are obvious or if an explanation

can fairly be implied from the record as a whole").

Here, unlike in Rosales, appellate review is

facilitated by the sentencing court's detailed explication of the

circumstances warranting departure. This thorough exposition is

adequate to explain the departures' extent. In particular, Judge

Zobel's founded determination that the amount of loss grossly

overstated the seriousness of the defendants' criminal activity

weighs heavily. Precisely because the guidelines use amount of

loss as a proxy for culpability in fraud cases, a supportable

finding that the loss exaggerates the reality of events often is

tantamount to a finding that the conventional sentencing range

18

exaggerates a defendant's blameworthiness, and, thus, tends to

invite a corresponding downward departure. So it is here.

Accordingly, while we would have preferred a more deliberate

discussion of the degree of departure, "we see no purpose served

in this case . . . in remanding to make explicit what was

implicit." United States v. Sclamo, 997 F.2d 970, 974 (1st Cir.

1993).

2. The Departures' Extent. The second shot in the
2. The Departures' Extent.

government's sling comes closer to the mark. The three

departures currently under review are substantial; as we show in

the margin, the least generous of them (applicable to Harris)

reduces the sentence to one-third the bottom of the GSR, and the

other two departures (applicable to Bonaiuto and DiCologero,

respectively)

manifest even greater clemency.9 Nonetheless, we reject both

the prosecution's implicit premise that unguided departures of

this magnitude are presumptively unsound and its explicit premise

9The following chart illustrates the degrees of departure:

Defendant GSR Incarcerative

Sentence

J. Harris 27-33 months 9 months
P. Bonaiuto 33-41 months 0
D. DiCologero 27-33 months 0

Relatedly, the court placed Bonaiuto on two years probation, six
months of which was to be served in a community treatment center,
and sentenced DiCologero to a two-year term of straight
probation.

19

that the particular departures sub judice are simply

unreasonable.10

We begin at bedrock. In respect to unguided

departures, once the sentencing court identifies a departure-

justifying circumstance and decides to act upon it, there is no

algebraic formula that it can invoke to quantify the departure's

extent. Hence, determining the size of such a departure is

"quintessentially a judgment call," Diaz-Villafane, 874 F.2d at

49, of a type that the law leaves almost entirely to the

sentencing court's standardless discretion. This means, of

course, that there is no single, correct, "one-size-fits-all"

unguided departure; rather, in any given situation, a range of

widely disparate options doubtless fall within the universe of

acceptable sentencing outcomes.

Similarly, once the trial judge departs, there is no

litmus test that an appellate court can employ to verify that the

extent of an unguided departure is or is not reasonable.

10In general, departures can be classified as either
"guided" or "unguided." As the label implies, a guided departure
is one in which a "guideline or related commentary suggests that
under [the] particular circumstances the departure should be
calibrated by a particular analogy to the sentencing grid."
Bruce M. Selya & Matthew R. Kipp, An Examination of Emerging

Departure Jurisprudence Under the Federal Sentencing Guidelines,

67 Notre Dame L. Rev. 1, 12 (1991). In contrast, an unguided
departure, although it may be based on grounds specifically
encouraged or identified in the guidelines, is not constrained by
a specification of the means through which the sentencing court
must calculate the departure's magnitude. See id. We restrict

our discussion today to unguided departures, because former
application note 11 to section 2F1.1, as it appeared in 1987,
offered no definitive directions for determining the extent of
downward departures based on multiple loss causation.

20

This stark reality, coupled with the district court's superior

knowledge of the facts and its matchless ability to detect the

subtle nuances that at times distinguish cases from the mine-run,

argues convincingly for a deferential approach. See Rivera, 994

F.2d at 950 (discussing desirability of deference in light of

"sentencing court's superior `feel' for the case") (quoting Diaz-

Villafane, 874 F.2d at 50); see generally Bruce M. Selya &

Matthew R. Kipp, An Examination of Emerging Departure

Jurisprudence Under the Federal Sentencing Guidelines, 67 Notre

Dame L. Rev. 1, 39-40 (1991) (explaining that, in reviewing the

extent of an unguided departure, "the sentencing judge's decision

is accorded generous latitude in recognition of the court's

firsthand knowledge of the case"). We have consistently held,

therefore, that appellate judges must exercise considerable

restraint before disturbing the presider's reasoned definition of

the degree of departure. See Rivera, 994 F.2d at 950; Diaz-

Villafane, 874 F.2d at 49-50.

To be sure, this emphasis on deference places a

considerable burden on the sentencing judge. To ease the weight

of this burden, the judge is entitled to expect counsel's help.

The lawyers are (or, at least, they should be) a fecund source of

assistance, for they have every incentive to give the trial court

the benefit of their thinking on issues in the case. Indeed, the

prosecution, which has an institutional interest in seeing that

justice is done, possesses an incentive that borders on an

obligation.

21

Departures fit neatly within this conceptual framework.

Judges must forewarn the parties of imminent departures, see

Burns v. United States, 501 U.S. 129, 135-39 (1991), and, once

forewarned, the prosecution and the defense become full partners

with the court in the departure pavane. Given the opportunity,

the parties out of self-interest, if for no more ennobling

reason should try to aid the court in determining what degree

of departure best responds to the idiosyncratic features of the

specific case. A prosecutor who forfeits this opportunity is in

a peculiarly poor position to protest profusely when the judge,

left to her own devices, thereafter exercises her discretion as

she deems best.

This brings us to a special circumstance that

undermines the argument the United States advances here. Judge

Zobel invited the government to make recommendations at the

disposition hearing concerning the appropriate degree of

departure for each defendant. The prosecutor declined the

invitation, clinging stubbornly to his position that the court

should not depart at all. At oral argument in this venue, the

government sought to justify this maneuver by suggesting that its

underlying position its claim that the district court could not

lawfully depart somehow relieved it of any responsibility to

assist the court in fixing the degree of departure. We are

unpersuaded.

The court below was faced with two distinct decisions:

whether to depart, and if so, to what extent. Once the court

22

resolved the threshold issue and solicited the parties' views on

the second issue, the prosecution, given its distinctive role,

could not sidestep the separate inquiry as to the degree of

departure merely because it disagreed with the court's initial

ruling. Counsel who lose a point can neither pout nor play the

ostrich, but must move on and confront the next set of issues.

See, e.g., United States v. Smolar, 557 F.2d 13, 17 (1st Cir.),

cert. denied, 434 U.S. 866 (1977). Just as a lawyer who moves

unsuccessfully for judgment as a matter of law must then give the

court his suggested jury instructions on the issue or risk a

less-than-favorable charge, so, too, a prosecutor who argues

against a departure, loses, and then refuses to offer suggestions

referable to the degree of departure runs a comparable risk.

In this instance, the chickens came home to roost: the

district court, unable to pry a recommendation out of the

prosecution, granted sizable sentence reductions. Under these

straitened circumstances, the government has an especially hard

row to hoe in its effort to convince us that the district court

displayed unreasonable generosity in shaping the departures.

Because reasonableness is not an absolute, but a construct that

"depends on the circumstances," Cotto v. United States, 993 F.2d

274, 280 (1st Cir. 1993), the government's silence in the face of

the lower court's timeous request for enlightenment concerning

the appropriate extent of the departures affects our assessment

of the departures' reasonableness. Put another way, the

government, having been afforded an opportunity to influence a

23

discretionary decision and having chosen instead to stonewall,

can expect that doubts will be resolved against it when,

thereafter, it attempts to second-guess that decision.11 Cf.

Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co.,

840 F.2d 985, 989 (1st Cir. 1988) ("Courts, like the Deity, are

most frequently moved to help those who help themselves.").

Against this backdrop, we conclude that the government

has not shown the sentencing outcomes in this case to be beyond

the realm of reason. In reviewing upward departures, we have

ratified very dramatic deviations from tabulated sentencing

ranges so long as they have been shown to be responsive to the

record. In Diaz-Villafane, for instance, we affirmed a 120-month

sentence though the GSR topped out at 33 months. In approving

this upward departure representing a 264% increase in the

defendant's sentence we deferred to "the district court's

11Our concurring brother misapprehends this point. Since
reasonableness is necessarily a function of what the sentencing
court knows, depriving the court of the prosecutor's judgments
about the extent of an anticipated departure limits the court's
knowledge and, thus, affects the reasonableness of its ensuing
determination. Contrary to Judge Stahl's assumption, the
unhelpful prosecutor does not "waive" anything; he simply makes
his post hoc complaint less convincing.

By like token, we do not believe that we are
encouraging "empty exercise[s]." Post at 34. We agree that the

prosecutor who, as our concurring brother suggests, "recommend[s]
a downward departure of one week," does not assist the sentencing
court. Id. We disagree, however, that such a ruse would improve

the prosecution's position or help to alter the calculus of
reasonableness. It should go without saying that, just as we
expect lawyers who suggest jury instructions to base them on
existing law or good faith arguments for new law, so do we expect
the government to be candid and forthcoming in commenting upon
the reasonableness of an anticipated departure.

24

firsthand knowledge of the case and its careful exposition of the

reasons why it thought the situation to be markedly atypical."

874 F.2d at 52. Diaz-Villafane is not an aberration. See, e.g.,

United States v. Hernandez Coplin, 24 F.3d 312, 316 (1st Cir.)

(upholding as reasonable 38-month and 46-month upward departures,

representing increases of 380% and 328% over the respective GSR

ceilings), cert. denied, 115 U.S. 378 (1994); United States v.

Doe, 18 F.3d 41, 48-49 (1st Cir. 1994) (upholding as reasonable a

45-month upward departure that represented a 166% increase over

the GSR's apex); United States v. Figaro, 935 F.2d 4, 8-9 (1st

Cir. 1991) (upholding as reasonable an upward departure that

tripled the defendant's sentence); United States v. Rodriguez-

Cardona, 924 F.2d 1148, 1156-57 (1st Cir.) (upholding as

reasonable an 84-month upward departure that represented an

increase of 165% over the GSR's apex), cert. denied, 502 U.S. 809

(1991).

Because we do not visualize departures as a one-way

street leading invariably to higher sentences, the same reasoning

applies ex proprio vigore to downward departures. This street

runs both ways. Consequently, the amount of deference that is

due to a district court's decision regarding the degree of

departure does not expand and contract depending upon the

departure's direction. See, e.g., United States v. White

Buffalo, 10 F.3d 575, 577-78 (8th Cir. 1993) (upholding as

reasonable a downward departure to a term of probation as against

a GSR of 18-24 months); United States v. One Star, 9 F.3d 60, 61-

25

62 (8th Cir. 1993) (upholding as reasonable a downward departure

to a term of probation as against a GSR of 33-41 months); Sclamo,

997 F.2d at 972 (upholding as reasonable a downward departure to

a term of probation as against a GSR of 24-30 months); United

States v. Jagmohan, 909 F.2d 61, 65 (2d Cir. 1990) (affirming

district court's downward departure from GSR of 15-21 months to a

term of probation).

We will not primp the peacock's plumage. Here, four

critical factors militate against a holding that the departures

are unreasonably steep: (1) the district court's supportable

finding that the amount of loss vastly overstated the defendants'

culpability, (2) the combined impact of the several external

elements cited by the court (e.g., the greed displayed by the

lender's senior management, the bank's negligence, the buyers'

complicity, and the market's collapse), (3) the special

circumstance that the government refused to assist the court in

the daunting task of determining the departures' size, and (4)

the breadth of the court's discretion in this area of sentencing.

Though the question is close, we conclude that the three

departures are all within, albeit tiptoeing along the outer

periphery of, the universe of acceptable sentencing outcomes.

Finally, we think that the differences in the degrees

of departure as among the various defendants are sustainable. As

we have repeatedly observed, the amount of loss is a proxy for

the seriousness of an offense. In a broad sense, then, the loss

calculation is relevant to an individual defendant's culpability,

26

and the departure for multiple loss causation is driven by the

knowledge that, on occasion, the proxy will overstate

culpability. In sentencing these defendants, the district court

made explicit findings as to their relative culpability, rating

the brothers Rostoff "at the high end of culpability," Harris

"somewhat lower," Bonaiuto "somewhat below [Harris]," and

"DiCologero below that."12 The court then linked the degree of

departure to the degree of culpability. Once a departure-

justifying circumstance has been identified, and the sentencing

court has determined to act upon it, a construct that varies the

degree of departure based on relative culpability (as related to

the actual ground for departure) seems eminently reasonable.13

E. Recapitulation.
E. Recapitulation.

We have made the pilgrimage that Rivera and Diaz-

Villafane demand. Having done so, we find that the district

court departed for an encouraged reason, permissible under the

guidelines; that the departure-justifying circumstance is

sufficiently record-rooted; and that the extent of the departures

12In a colloquy with the court, the prosecutor ranked the
defendants in order of perceived culpability, listing David
Rostoff as the most culpable, Steven Rostoff second, and Harris
third. Bonaiuto and DiCologero brought up the rear. For the
most part, the sentences imposed by Judge Zobel coincide with
this ranking. This parallelism makes it all the more difficult
for the government to maintain that the judge's method was
madness.

13Of course, relative culpability alone is not a reason to
depart. See United States v. Wogan, 938 F.2d 1446, 1448 (1st

Cir.), cert. denied, 502 U.S. 969 (1991). If, however, a valid

departure-justifying circumstance is present, and the sentencing
court acts on it, relative culpability appropriately can
influence the degree of departure.

27

is within acceptable bounds (if barely). Consequently, we

uphold the downward departures as to the defendants Harris,

Bonaiuto, and DiCologero.

III. ROLE IN THE OFFENSE
III. ROLE IN THE OFFENSE

The final leg of our journey brings us to the sentences

imposed on the Rostoff brothers. Those defendants erect an

immediate roadblock, asseverating that the district court's

downward departures eliminate any need to scrutinize the

antecedent role-in-the-offense adjustments. Therefore, they urge

us to vault directly to a departure analysis, ignoring possible

errors in the court's interim sentencing adjustments. We demur:

following this course would put the cart before the horse.

We need not tarry, for the Rostoffs' importuning

impales itself on the horns of stare decisis. The reasonableness

of a departure depends on its extent and the extent of a

departure cannot be measured unless and until a defendant's

sentencing range is established. Thus, "a decision to depart

does not, as a general rule, render moot questions concerning the

appropriateness of the calculations underbracing the district

court's computations of the GSR." Emery, 991 F.2d at 910. The

case at hand falls squarely within the Emery doctrine: each of

the challenged role-in-the-offense adjustments "at least

potentially, has more than academic effect on the actual sentence

because the proportionality of the departure to the GSR is a

salient factor to be considered in judging the departure's

reasonableness." Id.

28

Having dismantled the Rostoffs' roadblock, we turn to

the challenged adjustments. The sentencing guidelines provide

for elevating the OL of "an organizer or leader of a criminal

activity that involved five or more participants or was otherwise

extensive" by four levels, U.S.S.G. 3B1.1(a); elevating the OL

of lieutenants the "manager[s] or supervisor[s]" of such an

activity by three levels, U.S.S.G. 3B1.1(b); and elevating the

OL of those occupying leadership slots in smaller or less

extensive criminal enterprises by two levels, U.S.S.G. 3B1.1(c).

Here, the district court invoked subsection (c), and increased

the OL of each Rostoff brother by two levels. The government

contends that the court should have applied either subsection (a)

or (b). We agree.

A. What Transpired Below.
A. What Transpired Below.

The disputed role-in-the-offense adjustments originated

with the Probation Department. It recommended two-level

enhancements under subsection (c) even though it acknowledged in

the PSI Reports that the Rostoffs were "principal[s]" who

"participated in the management and coordination of the scheme"

and who "received a larger share of the proceeds of this

conspiracy." The government objected to the proposed

adjustments, emphasizing the size and complexity of the plot.

The Probation Department stood firm. Curiously, however, even

while rejecting the objection, it conceded in an addendum to

Steven Rostoff's PSI Report that the criminal activity was

"extensive," and that all five defendants had been "principal

29

participants" in it.

The government renewed its objection before the

district court, but to no avail; Judge Zobel accepted the

Probation Department's recommendations on this subject without

making any independent findings. Accordingly, each brother

received a two-level enhancement under subsection (c).

B. Standard of Review.
B. Standard of Review.

Role-in-the-offense determinations are innately fact-

specific. The court of appeals must, therefore, pay careful heed

to the sentencing judge's views. See United States v. Ocasio,

914 F.2d 330, 333 (1st Cir. 1990). It follows that our standard

of oversight is deferential: "absent mistake of law, we review

such determinations only for clear error." United States v.

Dietz, 950 F.2d 50, 52 (1st Cir. 1991). Questions of law

engender de novo review. See United States v. Brewster, 1 F.3d

51, 54 (1st Cir. 1993).

C. Analysis.
C. Analysis.

In ruling that subsection (c) applied, the district

court necessarily found that the Rostoffs were "organizer[s],

leader[s], manager[s] or supervisor[s]" of the criminal

enterprise. U.S.S.G. 3B1.1(c). Neither side has challenged

this finding. The question on appeal, then, is whether the

defendants' criminal activity "involved five or more participants

or was otherwise extensive," and, thus, fell outside the

parameters of subsection (c).

The government's assertion that the criminal activity

30

involved at least five participants is ironclad. For one thing,

the Probation Department's finding to this effect is essentially

unchallenged. For another thing, inasmuch as the jury found all

five defendants guilty on the conspiracy count, the sentencing

court was bound to conclude that the criminal activity involved

no fewer than five participants. See United States v. Weston,

960 F.2d 212, 218 (1st Cir. 1992) (explaining that under the

guidelines "a guilty verdict, not set aside, binds the sentencing

court to accept the facts necessarily implicit in the verdict").

Despite the impeccable provenance of this fact, the

brothers try an end run around it. They contend that U.S.S.G.

3B1.1(a)-(b) does not apply because, while they may have

exercised leadership in a criminal enterprise that had at least

five members, neither of them recruited, controlled, or directly

supervised four other people.14 We need not dwell upon the

correctness of the Rostoffs' self-assessment, however, for their

end run takes us on a fool's errand.

Since the relevant language of subsections (a) and (b)

is disjunctive, either extensiveness or numerosity is a

sufficient predicate for a three- or four-level upward

adjustment. See United States v. Hall, 996 F.2d 284, 287 (11th

Cir. 1993); Dietz, 950 F.2d at 53-54. In this instance, a

careful review of the record leaves no room to doubt the

14The operative number of other persons is four rather than
five, since the defendant himself must be counted as a
participant, see United States v. Tejada-Beltran, F.3d ,

n.9 (1st Cir. 1995) [No. 94-1780, slip op. at 18 n.9], and
the defendant presumably is under his own control.

31

extensiveness of the criminal enterprise. Thus, we need not

inquire into the attributes that might or might not be

essential if the enhancement depended upon a finding of

numerosity.15

Unlike numerosity, extensiveness does not depend upon a

finding that a criminal activity embraced no fewer than five

criminally responsible participants, see United States v.

Melendez, 41 F.3d 797, 800 (2d Cir. 1994); Dietz, 950 F.2d at 53-

54, much less a finding that the activity included four or more

persons under the defendant's direct control. Rather, a

determination that a criminal activity is "extensive" within the

meaning of section 3B1.1 derives from "the totality of the

circumstances, including not only the number of participants but

also the width, breadth, scope, complexity, and duration of the

scheme." Dietz, 950 F.2d at 53.

Here, the conspiracy lasted for over three years,

encompassed a bare minimum of 140 fraudulent loans, consumed

millions of dollars, affected many lives, and involved a legion

15Some courts have held that, when the applicability of
3B1.1(a) depends upon numerosity rather than extensiveness, the
defendant must be shown personally to have controlled no fewer
than four other participants. See, e.g., United States v.

Carson, 9 F.3d 576, 584 (7th Cir. 1993) (stating that to warrant

invoking subsection (a), the defendant must have had "some
control, direct or indirect, over at least four other
participants in the offense"), cert. denied, 115 S. Ct. 135

(1994); United States v. Reid, 911 F.2d 1456, 1465 n.8 (10th Cir.

1990) (same), cert. denied, 498 U.S. 1097 (1991). Other circuits

take a different position. See, e.g., United States v. Dota, 33

F.3d 1179, 1189 (9th Cir. 1994), petition for cert. filed (U.S.

Jan. 9, 1995) (No. 94-7604). Both the validity and the
permutations of this interpretation of 3B1.1(a) are open
questions in this circuit.

32

of people beyond the five named defendants. On this record, we

are compelled to conclude that the defendants' criminal

activities satisfy the extensiveness standard that is built into

U.S.S.G. 3B1.1(a)-(b). Consequently, the two-level enhancement

cannot stand: if the district court impliedly held that the

defendants' criminal activity was not extensive, it committed

clear error, and if the court applied section 3B1.1(c)

notwithstanding the extensiveness of the criminal activity, it

misapprehended the law. Either way, the court's crafting of the

Rostoffs' adjusted offense levels undervalued their respective

roles in the offense, requiring resentencing.16

IV. CONCLUSION
IV. CONCLUSION

We need go no further. For the reasons stated, we

affirm the convictions of all defendants, and affirm the

sentences meted out to the defendants Harris, Bonaiuto, and

DiCologero. However, we vacate the sentences imposed on the

defendants David and Steven Rostoff, and remand their cases for

resentencing in light of the need for altered role-in-the-offense

determinations.

Affirmed in part, vacated in part, and remanded for
Affirmed in part, vacated in part, and remanded for

further proceedings consistent with this opinion.
further proceedings consistent with this opinion.

16The government maintains that David Rostoff's offense
level should be enhanced by four levels pursuant to U.S.S.G.
3B1.1(a) and Steven Rostoff's offense level should be enhanced
by three levels pursuant to U.S.S.G. 3B1.1(b). We take no view
of these particulars, leaving the resolution of such interstitial
questions to the district court.

33

CONCURRING OPINION FOLLOWS
CONCURRING OPINION FOLLOWS

34

Stahl, Circuit Judge, concurring. While I agree with

the majority's result and with much of its reasoning, I cannot

agree that the prosecution's "reticence" at recommending the

degree of departure should animate our review of the

reasonableness of the district court's departure decision.

We review the direction and degree of unguided

departures for reasonableness. United States v. Diaz-Villafane,

874 F.2d 43, 49 (1st Cir. 1989); see also 18 U.S.C. 3742(e)(3).

In determining whether a sentence is reasonable, we proceed with

"`full awareness of, and respect for' the sentencing court's

`superior "feel" for the case.'" United States v. Rivera, 994

F.2d 942, 950 (1st Cir. 1993) (quoting Diaz-Villafane, 874 F.2d

at 50). Accordingly, the standard of review "is quite

deferential to the district judge." United States v. Hernandez

Coplin, 24 F.3d 312, 316 (1st Cir. 1994). We have never informed

our deference by what the prosecutor recommends, either for

upward or downward departures.

The majority states that if the government fails to

recommend a downward departure when invited to do so, "the

government has an especially hard row to hoe in its effort to

convince us that the district court displayed unreasonable

generosity in shaping the departures," Majority at 22, and that

"the government's silence in the face of the lower court's

timeous request for enlightenment concerning the appropriate

extent of the departures affects our assessment of the

departures' reasonableness," id. at 23. With this, the majority

35

appears to adopt a waiver-like analysis, such that a prosecutor

who fails to recommend an appropriate sentence risks a near-

automatic affirmance of the district court's sentence. I cannot

agree that the government's action, be it in the nature of waiver

or otherwise, has anything to do with our review of the

reasonableness of the sentence, for in assessing reasonableness,

our focus is on the facts of the case, not on the recommendations

made by counsel. Thus even if the government recommends a lesser

departure than the court grants, that recommendation cannot be an

appropriate basis for us to decide that the court's ultimate

decision fails the reasonableness test.

In my view, the majority requires the court and the

prosecutor to engage in an empty exercise, for to avoid affecting

appellate review, the government would routinely recommend very

small downward departures, even though it believes no departure

is warranted and even though such advice will not assist the

court any more than the government's true position that no

departure is warranted. Unlike the majority's example of a

lawyer who moves unsuccessfully for judgment as a matter of law

who must then suggest jury instructions to the court, see

Majority at 22, the prosecutor who unsuccessfully argues against

a decision to depart does not assist the court by then

recommending a downward departure of one week. In the departure

context, the government's silence carries with it the implicit

recommendation that no departure (and, therefore, at most a very

small one) is appropriate. Thus the government's argument that

36

there is no legal authority to depart often conflates with its

position that no departure is appropriate.

I fail to understand the application of the majority's

apparent rule in this case. The majority accuses the prosecutor

of "stonewall[ing]," Majority at 23, and of "clinging stubbornly

to his position that the court should not depart at all," id. at

21. It is true that the prosecutor did not believe that the

court was entitled to consider multiple causes for the loss as a

grounds for departing downward. In addition to making that legal

argument, however, the prosecutor also argued that even if the

court had legal authority to depart, the losses being used for

sentencing purposes did not overstate the seriousness of the

defendants' offense. Thus the prosecutor, accepting that the

district court had legal authority to depart downward, still

argued that no departure was warranted. In accordance with that

view, when invited to recommend an appropriate sentence, the

prosecutor responded, "Your Honor, we believe that the sentencing

guideline ranges that were calculated by the Probation Office

were appropriate ones . . . ." The district court, hardly

pressing for more assistance, replied, "Oh, I understand. I

understand." The prosecutor went on, however, to rank the

defendants in order of the government's view of their

culpability. I would not characterize the prosecutor as having

"stonewall[ed]."

Thus, given the deference appropriate in reviewing

departure decisions, and given the facts found by the district

37

court, we cannot say that the district court acted unreasonably

in departing downward to the extent it did in this case. This is

so not because of any reticence showed by the government in

failing to recommend appropriate sentences to the court, but

rather because these departures, while significant, are

nonetheless within the realm of reasonableness.17 The

government's "silence" on the amount of departure is irrelevant,

and the deference accorded the district court is not affected by

actions of the government.

17 See Majority at 23-24 (discussing reasonableness in

context of other departure cases).

38