United States v. Doe

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 92-2331

UNITED STATES,

Appellee,

v.

ARTHUR DOE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Breyer, Chief Judge,

Selya and Boudin Circuit Judges.

Richard B. Klibaner, by Appointment of the Court, with whom

Klibaner & Sabino was on brief for appellant.

Ralph F. Boyd, Jr., Assistant United States Attorney, with whom

A. John Pappalardo, United States Attorney, was on brief for appellee.

March 18, 1994

BREYER, Chief Judge. This appeal focuses upon the

decision of the district court, when sentencing Arthur Doe,

to depart from the Sentencing Guidelines. A jury found Doe

guilty of possessing a gun after a previous felony

conviction. 18 U.S.C. 922(g)(1). The Sentencing

Guidelines specified an imprisonment range of about two

years (21 to 27 months). The district court, believing that

the Guideline range did not adequately reflect Doe's prior

criminal record, departed and imposed a sentence of six

years imprisonment instead. Doe now appeals. We find the

departure lawful, and we affirm his sentence.

I

Background

This is Doe's second sentencing appeal. The first

time, the district court had found applicable a special

"mandatory minimum" sentencing statute requiring the court

to impose at least a fifteen year prison term upon "felons

in possession" of a gun with three (or more) previous

convictions for "violent felonies." 18 U.S.C. 924(e)(1)

(emphasis added). In that earlier appeal, we focused upon

one of Doe's three earlier felony convictions, namely a 1984

conviction for being a "felon in possession" of a gun (a

different and earlier instance of the present crime). We

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held that this particular felony -- the "felon in

possession" crime -- is not itself a violent felony; hence

the "mandatory minimum" statute did not apply. See United

States v. Doe, 960 F.2d 221 (1st Cir. 1992).

On remand, the district court properly referred to

the 1989 Sentencing Guidelines (in effect in March, 1990,

when Doe committed the crime) instead of the stricter (1991)

version in effect at the time of Doe's resentencing. See

United States v. Cousens, 942 F.2d 800, 801 n.1 (1st Cir.

1991). Under the 1989 Guidelines, the base offense level

for the "felon in possession" crime was 12. U.S.S.G.

2K2.1(a)(2). The Guidelines assigned a total of eight

criminal history points for Doe's earlier convictions. The

result, offense level 12 at Criminal History Category IV,

produced a Guideline sentencing range of 21 to 27 months.

See U.S.S.G. ch. 5, pt. A (Table).

The court, after review of the presentence report

and after argument at the sentencing hearing, decided that

Doe's case was an unusual, rather than ordinary, case, in

four respects:

1) At least one of Doe's prior convictions, for
armed bank robbery, was a particularly
dangerous crime involving use of a gun.

2) Doe's record revealed a history of serious,
aggravated assaults.

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3) Doe's record revealed a history of committing
crimes while he was free on bail awaiting
trial (or the like).

4) At the time of his arrest for the present
crime, Doe led the police on a high speed
chase, endangering the lives of others.

In light of these special features of the case, the court

departed from the applicable guideline range (approximately

two years) and instead imposed a prison term of six years.

Doe now appeals this sentencing departure. 18 U.S.C.

3742(a).

II

Standard of Review

The legal issues before us are typical of the

kinds of issues raised in sentencing departure appeals.

They concern (1) the grounds for departure, i.e., whether or

not the circumstances are of a "kind or degree" upon which a

district court "may appropriately" rely "to justify

departure," United States v. Diaz-Villafane, 874 F.2d 43, 49

(1st Cir.), cert. denied, 493 U.S. 862 (1989); and (2)

whether the extent of the district court's departure (from

about two years to six) was "reasonable." Id.; 18 U.S.C.

3742(e)(3). We explained our reviewing approach to these

kinds of issues in Diaz-Villafane, 874 F.2d at 49, and in

United States v. Rivera, 994 F.2d 942 (1st Cir. 1993). Some

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district court decisions that a particular case is unusual

enough to warrant departure reflect sentencing experience of

a sort one typically finds in district, not appellate,

courts; in our view, the law provides the district court a

degree of "leeway" in making those "kind or degree"

judgments. Rivera, 994 F.2d at 951. Other departure

decisions reflect a determination of the purpose of, or an

interpretation of the language in, a guideline or statute;

in such cases, where a district court has no comparative

expertise in resolving the "quintessentially legal" issue,

an appellate court will review the district court's

determination independently. Id.

In this case, when we decide whether the district

court gave proper legal reasons for departing, we shall

apply one or the other of these standards of review, as

appropriate. When we review the degree of departure for its

"reasonableness," we shall apply a "deferential" standard of

review. Rivera, 994 F.2d at 950; Diaz-Villafane, 874 F.2d

at 49-50.

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III

Grounds for Departure

A

The Bank Robbery

The district court's first reason for departing

consisted of the nature of one of Doe's earlier crimes.

That crime was a bank robbery in daylight, committed with

guns, that put employees and bystanders at risk of serious

harm. The Guidelines assigned three criminal history points

for this crime. But the district court, noting, among other

things, Doe's repeated use of guns, thought that it

warranted more.

Doe argues that the Guidelines forbid the district

court from departing for this reason. He notes that a

departure reason must, at least in principle, make the case

"unusual"; it must suggest circumstances that remove the

case from the "heartland" of the relevant guideline.

Rivera, 994 F.2d at 947-48. But, he says, the fact that an

earlier felony involved use of a gun, or a related risk of

violence, cannot remove the case from the "heartland" where,

as here, the instant crime is being a "felon in possession."

Doe points out that everyone convicted of the "felon in

possession" crime must also have been convicted of a prior

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felony. In his view, so many felonies involve guns and

risks of violence that an earlier conviction for such a

crime must be common, not unusual, for a felon in

possession. Hence, those circumstances must lie at the

heart of, not on the periphery of or outside, the relevant

"felon in possession" guideline.

We can treat Doe's argument as one of pure legal

principle and consider it independently on review only if we

treat it as an extreme argument -- an argument that the

guideline's heartland encompasses all earlier gun-related or

risk-of-violence-related prior felonies. See Rivera, 994

F.2d at 951 (appellate court will independently perform

"quintessentially legal" function of deciding what guideline

means). Phrased in this way, the argument is not

convincing. The "felon in possession" guideline says only

that its base offense level of 12 applies when the defendant

has previously

been convicted . . . of a crime
punishable by imprisonment for a term
exceeding one year.

18 U.S.C. 922(g)(1) (cited in U.S.S.G. 2K2.1(a)(2)).

That language, taken literally, covers a vast range of

behavior, ranging from the totally nonviolent to the most

heinous. Nothing in this language (or its apparent purpose)

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says that every (earlier) gun- or violence-related felony

must fall within its heartland. To the contrary, the fact

that Congress has imposed a fifteen-year mandatory prison

term upon felons in possession with three earlier violent

felonies, 18 U.S.C. 924(e)(1), suggests, by extrapolation,

something special about one or two earlier violent felonies.

Moreover, whether the violent nature of an earlier crime

does, or does not, warrant special treatment would seem the

kind of fact-related circumstance about which the Sentencing

Commission hoped to learn more, as district courts, on the

basis of their experience, decided to depart, or not, in

light of such circumstances. See Rivera, 994 F.2d at 946,

949-51 (explaining role of district courts in helping

Commission revise Guidelines). Thus, even though we find

some dismal truth in Doe's claim that large numbers of

felonies involve guns and violence, we do not believe that

the "felon in possession" guideline automatically rules out

consideration of a departure based on such features.

To make Doe's argument more convincing, we must

rephrase it as an argument that here, in this case, the

nature of the earlier gun crime is not special enough to

warrant a departure. Indeed, whether the special facts of

daytime bank robbery, guns, and risks of violence, make this

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case unusual enough to permit departing beyond the added

punishment that accompanies three criminal history points

presents a close question. But it is the very kind of

question about which we must listen to the district courts

with "respect." It

amount[s] to a judgment about whether
the given circumstances, as seen from
the district court's unique vantage
point, are usual or unusual, ordinary or
not ordinary, and to what extent.

Rivera, 994 F.2d at 951. We have recognized the district

court's

special competence in making this kind
of determination, because it may have a
better "feel" for the unique
circumstances of the particular case . .
. .

Id. We have also pointed out that, by permitting district

courts a degree of leeway in making such determinations,

they become, for the Sentencing Commission, an

important source of information . . .
which . . . can help the Commission
determine whether, and how, Guidelines
revision should take place.

Id. As we have just said, how district courts react to the

presence of violence as an attribute of one or two prior

violent felonies could help the Commission decide whether or

not it should write guidelines that "extrapolate" from the

mandatory minimum sentencing statute's requirement of three

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such prior convictions. (In fact, the Commission, in more

recent guidelines versions, has extrapolated in this way.

Compare U.S.S.G. 2K2.1(a)(2) (1989) (level 12 for all

felons in possession) with U.S.S.G. 2K2.1(a)(2), (4)(A),

(7) (1991) (level 24 for felons in possession with two prior

violent felonies, level 20 for one, level 12 for none).)

These considerations, along with the obvious fact

that putting innocent lives at risk, using guns, and robbing

a bank in daylight, aggravate the prior conduct to some

degree, lead us to find lawful the district court's decision

to use these facts as one (of several) bases for departure.

We need not decide how much of a departure (over and above

the ordinary punishment attributable to three criminal

history points) these facts alone would warrant, for these

facts were not the district court's sole basis for

departure. See Part IV, infra (discussing the extent of the

departure based on all permissible factors).

B

Repetitive Assaultive Behavior

The district court set forth another ground for

its belief that "reliable information" indicated that the

Guidelines'

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criminal history category does not
adequately reflect the seriousness of
the defendant's past criminal conduct.

U.S.S.G. 4A1.3 (p.s.) (encouraging departure where that is

so). That ground consists of what the district court called

"a virtually unbroken chain of assaultive behavior." One of

Doe's earlier convictions involved Doe's having hit someone

over the head with a pipe; another involved beating two men

with a handgun and kicking one of them. The Guidelines

assigned no criminal history points for either of these

serious crimes, in the first instance because Doe was under

18 at the time (and the conviction was more than five years

old); in the second instance because (although the court

tried the still underage Doe as an adult) the court

suspended Doe's sentence, perhaps because he was about to be

sentenced to a lengthy federal prison term for bank robbery.

See U.S.S.G. 4A1.2(b)(2), (d).

Doe cannot deny the rather special nature of these

circumstances, which resemble those for which the Guidelines

encourage criminal history departures. U.S.S.G. 4A1.3

(p.s.); cf. United States v. Aymelek, 926 F.2d 64, 73 (1st

Cir. 1991) (adult convictions not counted in criminal

history score may serve as basis for departure if they

evidence "some significantly unusual penchant for serious

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criminality"). Doe does, however, make one important purely

legal argument. He points to two federal appeals court

cases that hold that the Guidelines not only fail to

encourage, but they forbid, criminal history departures

where, as here, the departure rests on a juvenile's

uncounted criminal conduct (unless the juvenile conduct is

"similar" to the present crime of conviction). United

States v. Samuels, 938 F.2d 210, 214 (D.C. Cir. 1991);

United States v. Thomas, 961 F.2d 1110, 1116 (3d Cir. 1992)

(adopting Samuels).

We do not accept the argument because these two

circuits, in these cases, read the Guidelines' approach to

departures contrary to this circuit's understanding. See

Rivera, 994 F.2d at 946-52. In Samuels, the D.C. Circuit

reached its conclusion by engaging in a kind of "statutory

interpretation" of Guideline commentary. It noted that the

Sentencing Guidelines, when calculating a criminal history

score, count prior adult crimes up to fifteen years old, but

they do not count prior juvenile crimes more than five years

old. U.S.S.G. 4A1.2(d), (e) (setting forth approximately

this rule, though tying most calculations to prior

sentences, rather than to prior crimes). It also noted

that, in an application note, the Commission explains that

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this "fifteen versus five" year difference is due to the

"differential availability" of juvenile records (i.e.,

sometimes juvenile records are available and sometimes they

are not). See U.S.S.G. 4A1.2 n.7. It further noted that,

in a different application note, the Commission adds that a

sentencing court might nonetheless want to use an outdated

adult or juvenile crime (i.e., one more than fifteen years

old, or more than five years old, respectively) as a basis

for departure where that crime provides "evidence of similar

misconduct" with respect to the present offense. Id. n.8

(emphasis added). From these two statements in commentary,

the Samuels court drew the conclusion that the Guidelines

forbid a court to use a pre-cutoff-date juvenile conviction

as a basis for a departure, unless that conviction reveals

conduct similar to the conduct underlying the present

offense of conviction; in its view, any other rule "would

plainly exaggerate the sentencing disparities that [the

five-year cutoff] is meant to curb." Samuels, 938 F.2d at

214-16. Thomas basically followed Samuels. Thomas, 961

F.2d at 1116.

Our reason for disagreeing with this analysis has

two parts. First, the application notes to which the

Samuels court pointed do not say whether or not it is

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sometimes permissible to depart on the basis of a juvenile

offense that reflects dissimilar, pre-cutoff-date, conduct.

The first application note, referring to the "differential

availability" of juvenile records, talks about ordinary

cases. It explains (in part) why the Commission established

a five year, rather than a fifteen year, cutoff date for

juvenile offenses, for purposes of computing the criminal

history score. See U.S.S.G. 4A1.2 n.7. But every

Guideline case requires a criminal history score

computation. Hence, the rules governing that computation

affect the outcome of ordinary guidelines cases where

uniformity is a major Guidelines goal. The note says

nothing about departures -- the Guidelines' escape hatch for

unusual circumstances -- which by definition create, and are

supposed to create, non-uniformity. The second application

note refers to a special reason for departing, namely the

presence of serious similar instances of criminal conduct

that the Guidelines' calculation system ignores, see id.

n.8, and it "encourages" departures for this reason, see

Rivera, 994 F.2d at 948. That note, however, does not

mention departures for other reasons, such as the presence

of uncounted, earlier, dissimilar conduct. See id. at 947-

49 (distinguishing among "ordinary," "encouraged,"

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"discouraged," and "forbidden" departures). Thus, the note

provides no explicit Commission guidance on this question.

Second, the Samuels court's inference (that the

application notes imply an unstated principle that the

Guidelines forbid using pre-cutoff-date, dissimilar,

juvenile conduct as a basis for departure) is directly

contrary to our understanding of the Guidelines' intentions

as to whether, and when, courts may depart. See Rivera, 994

F.2d at 947-49. The Introduction to the Guidelines says

expressly that, with a handful of exceptions, the Guidelines

do not "limit the kinds of factors, whether or not mentioned

anywhere else in the guidelines that could constitute

grounds for departure in an unusual case." U.S.S.G. ch. 1,

pt. A(4)(b) (p.s.) (emphasis added); see Rivera, 994 F.2d at

947. The handful of explicit listed exceptions includes

such matters as race, sex, religion, and socio-economic

status. E.g., U.S.S.G. 5H1.10; Rivera, 994 F.2d at 948-

49. The listed exceptions do not include conduct that was

the subject of an outdated juvenile conviction. As we have

said before, the language from the Guidelines' introduction

that we have just quoted means that a court should not infer

from inexplicit Guidelines language, or from language that

authorizes use of a particular factor as a basis for

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departure in some cases, an absolute barrier in principle

against using certain other factors as grounds for departure

in other unusual circumstances. See Rivera, 994 F.2d at

948-49 (noting that with several "explicit exceptions,"

courts are "free to consider, in an unusual case," any

factors making a case "unusual") (emphasis added).

We emphasize that the Commission's decision to

impose very few limits in principle upon potential grounds

for departure does not grant sentencing courts a license to

treat each case as unique, as in the days of pre-guideline

sentencing. To the contrary, it is meant to encourage

sentencing courts (1) to ask whether a particular case is

truly unusual, i.e., significantly different from the

ordinary instance of the offense and, (2) if so, to explain

precisely why. If the sentencing court wishes to depart, it

must clearly state just how the case differs from an

ordinary case, thereby not only permitting appellate courts

to review the explanation, but also permitting the

Commission to learn more about how the Guidelines work in

practice. See Rivera, 994 F.2d at 951-52. That information

will help the Commission decide whether, or how, to modify a

Guideline document, which it sees as organic, evolving over

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time. U.S.S.G. ch. 1, pt. A(4)(b) (p.s.); Rivera, 994 F.2d

at 951-52.

Departure decisions resting upon prior juvenile

records, for example, might, after Commission examination,

lead the Commission to write different guidelines, to

encourage different kinds of departures, or even to forbid

all departures based on outdated juvenile records, by

explicitly saying so. But the decision about whether or not

to forbid certain categories of departure belongs to the

Commission, not to the courts. See U.S.S.G. ch. 1, pt.

A(4)(b); cf. 18 U.S.C. 3553(b) ("In determining whether a

circumstance was adequately taken into consideration, the

court shall consider only the sentencing guidelines, policy

statements, and official commentary of the Sentencing

Commission.") (emphasis added). Indeed, after considering

such departure decisions and the Samuels interpretation, the

Commission in later Guidelines versions has rejected that

interpretation, clarifying its prior intent, consistent with

our views here. See U.S.S.G. App. C 472 (1992); cf.

Isabel v. United States, 980 F.2d 60, 62-63 (1st Cir. 1992)

("clarifications" of Guidelines may be applied

retroactively; "substantive changes" may not).

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Since we do not accept Doe's purely legal argument

against the district court's use of his juvenile record, he

cannot succeed here. His prior criminal conduct is well

documented, it took place when he was almost eighteen years

old, it was serious, and it was repeated. The district

court, taking these circumstances together, saw in Doe's

prior (uncounted) juvenile record a "significantly unusual

penchant for serious criminality" that justified departure.

See Aymelek, 926 F.2d at 73. Recognizing that the district

court has a degree of legal "leeway" in making judgments of

thissort, Rivera,994 F.2d at951, we findits decision lawful.

C

Criminal Justice Control

The district court found a further reason for

departure in the fact that Doe had committed at least five

earlier crimes while he was on bail, or was awaiting trial,

or was under some other kind of "court supervision," in

respect to a different crime. This kind of behavior, when

not otherwise taken into account by the Guidelines

themselves, see, e.g., U.S.S.G. 4A1.1(d), (e), is a proper

reason for departure. See, e.g., United States v. Fahm, No.

92-2215, slip op. at 4, 7-8 (1st Cir. Jan. 5, 1994); United

States v. Diaz-Collado, 981 F.2d 640, 644 (2d Cir. 1992),

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cert. denied, 113 S. Ct. 2934 (1993); United States v.

Madrid, 946 F.2d 142, 143-44 (1st Cir. 1991); United States

v. Fields, 923 F.2d 358, 362 (5th Cir. 1991), overruled on

other grounds, United States v. Lambert, 984 F.2d 658 (5th

Cir. 1993) (en banc); United States v. Singleton, 917 F.2d

411, 413 (9th Cir. 1990) (all upholding departures based in

part on the fact that past crimes were committed under court

supervision or shortly after release); United States v.

Hernandez, 896 F.2d 642, 645 (1st Cir. 1990) ("[A] defendant

undermines the integrity of the criminal justice system when

he commits a crime while he is under its supervision and

control."). Again recognizing that the district court has a

degree of legal "leeway" in deciding whether the particular

circumstances present here are unusual enough to warrant a

departure, we find its decision lawful.

D

Reckless Endangerment

At the time of Doe's arrest, he led the police on

a high speed chase through city streets, along the wrong

side of a divided highway into oncoming traffic, which ended

when he crashed into other cars and a subway tunnel barrier.

Endangering the lives of others in this way makes the

instant case unusual, in principle permitting a departure.

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Indeed, the 1989 Guidelines encourage a departure where

"public . . . safety was significantly endangered."

U.S.S.G. 5K2.14; see, e.g., United States v. Rodriguez-

Castro, 908 F.2d 438, 441 (9th Cir. 1990); United States v.

Chiarelli, 898 F.2d 373, 380-81 (3d Cir. 1990) (both

upholding departures for similar conduct under 5K2.14).

Doe points out that the 1990 Guidelines, not

applicable to his case, added a new provision specifically

requiring a two-level upward adjustment in such

circumstances. See U.S.S.G. 3C1.2 (1990). He seems to

argue that the new guideline should apply to him, in which

case the court should have increased his sentence through

the adjustment and not through departure. We are not

certain why Doe thinks applying a two-level upward

adjustment (under the 1990 Guidelines) rather than departing

upward two levels (as the district court did and the 1989

Guidelines permit) would have made a difference to his

sentence. But, regardless, the district court took the

right approach. To apply the new 1990 Guidelines to Doe's

case, in this respect, would have required a two-level

increase. For that reason, they would seem to have

heightened the severity of the applicable law, which at the

time simply permitted such an increase through a departure.

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Hence, ex post facto principles would have led the district

court to the earlier 1989 version, which put the matter in

its departure-related discretion. Cf. Cousens, 942 F.2d at

801 n.1.

IV

The Extent of Departure

The district court departed from a Guideline

sentence range of 21 to 27 months. It imposed instead a

sentence of 72 months. The relevant statute instructs us to

review the length of that sentence for its "reasonableness,"

18 U.S.C. 3742(e)(3); in doing so we show "full awareness

of, and respect for" the sentencing court's "superior 'feel'

for the case." Rivera, 994 F.2d at 950 (quoting Diaz-

Villafane, 874 F.2d at 50).

The district court determined the extent of the

departure as follows:

1) The court began with the Guideline score,

offense level 12, criminal history category IV, which

produced a range of 21 to 27 months.

2) The court decided that Doe's reckless conduct

fleeing arrest warranted a two-level increase in the offense

level, producing a range of 27 to 33 months. Cf. U.S.S.G.

3C1.2 (1990).

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3) The court decided that Doe's criminal history

warranted, at least, a two-category criminal history score

departure, placing Doe in criminal history category VI,

instead of IV, and (taken together with the reckless conduct

departure) bringing the court to level 14, category VI, with

a range of 37 to 46 months imprisonment.

4) Finally, the district court found this range

"too low . . . because of the criminal history of this

defendant." The court was struck by Doe's

virtually unbroken chain of assaultive
behavior, consistently committed while
under either supervision or the
generalized control of the court,
starting with the juvenile encounters
with law enforcement and continuing to
the present offense.

The court added that the

criminal history category does not
reflect the seriousness of his offenses
nor the likelihood -- which I consider a
virtual certainty -- that once this
defendant is returned to the street he
will commit future crimes,

and that

[t]his is a defendant who has been
permitted to engage in such plea or
diversionary or ameliorative sentencing
arrangements because this system has
assumed that more serious matters await
him. The classic in this circumstance
is the [state court] disposition of the
defendant for assault and battery with a
dangerous weapon [suspended sentence]

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shortly after his bank robbery
conviction [in the federal court].

The record provides sufficient support for these factual

conclusions.

The court then followed the method for calculating

the kind of departure that the Guidelines recommend "on

occasion" for a defendant with an "egregious, serious

criminal record," U.S.S.G. 4A1.3 (p.s.). Starting at

level 14, category VI, the court in effect moved vertically

down the sentencing table until it found a range it believed

appropriate. The court selected a 72 month (i.e., six year)

sentence, which is analogous to a five-level departure to

level 19 (at category VI). U.S.S.G. ch. 5, pt. A (Table)

(level 19 at category VI sets range of 63-78 months). It

noted the Commission's later decision to increase a felon in

possession's offense level by eight for one prior violent

felony, see U.S.S.G. 2K2.1(a)(4), (7) (1991), and it

pointed out that its resulting sentence was less severe than

the sentence would have been if the Commission's later

Guidelines had applied.

We can find nothing unreasonable about the extent

of the district court's departure. Doe's prior criminal

record does seem "egregious." The fact that his most recent

violent crime, armed bank robbery, involved guns seems

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particularly relevant in light of his present gun-related

crime. His record also reveals, in addition to the two

serious crimes counted in the criminal history score, four

other serious crimes; indeed, as the government pointed out

at oral argument, it reveals Doe's virtually continuous

commission of crimes, interrupted only by periods of

incarceration.

Moreover, the Guidelines themselves seem to see in

such circumstances the basis for a significant departure.

Commenting upon criminal history departures, they envision

as a candidate for departure

a defendant with an extensive record of
serious, assaultive conduct who had
received what might now be considered
extremely lenient treatment in the past
. . . . This may be particularly true
in the case of younger defendants . . .
who are more likely to have received
repeated lenient treatment, yet who may
actually pose a greater risk of
recidivism than older defendants.

U.S.S.G. 4A1.3, comment. (backg'd).

We cannot say that the district court went beyond

the "leeway" the law provides, Rivera, 994 F.2d at 950

(citing Diaz-Villafane, 874 F.2d at 49-50), when it departed

upward by five levels. The defendant's prior crimes were

extensive, violent, and (like the present crime) involved

guns. The addition of two levels for the defendant's arrest

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behavior also seems reasonable. Thus, we cannot find the

extent of the departure, taken as a whole, "unreasonable."

18 U.S.C. 3742(e)(3).

We note Doe's argument that the court, in

departing, simply applied the Commission's more severe 1991

Guidelines to him, in violation of the Constitution's ex

post facto clause. See Cousens, 942 F.2d at 801 n.1. After

reviewing the district court's statements, however, we are

convinced that Doe misinterprets what that court did. The

court fully understood the ex post facto problem. It wrote

explicitly that it used the later guidelines not to provide

a reason for departing, but rather as an analogy, through

reference to the Commission's informed judgment, that its

grounds and extent of departure were reasonable. See United

States v. Harotunian, 920 F.2d 1040, 1046 (1st Cir. 1990)

(court may look to subsequent Guidelines amendments "for

partial guidance to corroborate its belief" that particular

conduct "furnished a proper ground for a discretionary

departure, and as a means of comparison in fixing the

departure's extent"); supra pp. 6-17 (departure based on

prior bank robbery and on juvenile conduct is permissible).

The court pointed out that, although it used the new

guideline to provide an analogy to determine how far down

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the sentencing table's column VI it should move, its five-

level upward departure was significantly less than the

eight-level increase that the 1991 Guidelines specify where

a "felon in possession" has one prior violent felony

conviction. U.S.S.G. 2K2.1(a)(4), (7) (1991). Its final

six year sentence is one year less than the minimum sentence

at the guideline range that the 1991 Guidelines would have

made applicable. The fact that the Commission also (in a

later Guideline version) decided that certain conduct

warrants a higher sentence does not bar the court from

finding, prior to the Commission's action, that the conduct

provides a basis for an upward departure. See Harotunian,

920 F.2d at 1046.

Finally, Doe argues that the district court

increased his sentence because it disagreed with our view

that the "felon in possession" crime is not a "violent

felony" that falls within the "mandatory minimum" sentencing

statute and would (in this case) lead to a fifteen year

sentence. See Doe, 960 F.2d at 224-26. The district court

did mention the fact that other circuits have decided the

matter differently. But we find nothing in the district

court's statements that warrant Doe's conclusion. Rather,

the reasons that led the court to depart are the reasons it

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mentioned and those we have discussed in this opinion. We

find no evidence of an intent to subvert this court's

earlier decision.

For these reasons, the defendant's sentence is

Affirmed.

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