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
-2-
2
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.
-3-
3
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
-4-
4
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.
-5-
5
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
-6-
6
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)
-7-
7
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
-8-
8
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
-9-
9
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'
-10-
10
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
-11-
11
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
-12-
12
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
-13-
13
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,"
-14-
14
"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
-15-
15
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
-16-
16
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).
-17-
17
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),
-18-
18
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.
-19-
19
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.
-20-
20
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).
-21-
21
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]
-22-
22
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
-23-
23
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
-24-
24
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
-25-
25
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
-26-
26
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.
-27-
27