United States Court of Appeals
For the First Circuit
No. 99-1507
UNITED STATES OF AMERICA,
Appellee,
v.
GERALD R. CARON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Stahl, Circuit Judges.
Owen S. Walker, Federal Defender Office, for appellant.
Brian T. Kelly, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for the
United States.
April 5, 2000
BOUDIN, Circuit Judge. In July 1994, Gerald Caron was
convicted after a jury trial on four counts of being a felon in
possession of firearms and ammunition. 18 U.S.C. § 922(g)(1).
At sentencing in September 1994, he was found to be an armed
career criminal and therefore subject to an increased sentence.
18 U.S.C. § 924(e). This label attaches to a felon in
possession who has three prior convictions for, inter alia,
violent felonies, id.; Caron had four prior violent felony
convictions in state courts--three in Massachusetts and one in
California--and three such convictions in the federal courts
(although those convictions arose out of one incident and thus
are only counted as one conviction under section 924(e)(1)).
United States v. Caron, 941 F. Supp. 238, 241 n.6 (D. Mass.
1996). He was then sentenced to 262 months in prison.
Although this court initially affirmed on appeal,
United States v. Caron, 64 F.3d 713 (1st Cir. 1995), cert.
denied, 518 U.S. 1027 (1996), we later granted rehearing en
banc, id. at 719, and concluded that further proceedings were
required to determine whether Caron had enough prior convictions
to qualify as an armed career criminal. United States v. Caron,
77 F.3d 1 (1st Cir.) (en banc) (1996). The doubt arose because
Caron claimed that as to his Massachusetts state convictions, he
had had his "civil rights restored" and, in such cases (with an
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exception not here relevant), the statute says that a prior
conviction "shall not be considered a conviction" for purposes
of the firearms chapter. 18 U.S.C. § 921(a)(20). This
restriction may make little sense in determining whether someone
is an armed career criminal, but the courts have (reasonably
enough) followed the clear statutory language.
On remand, the district court ruled that Caron's civil
rights had been restored with respect to the three Massachusetts
convictions, leaving only the California conviction and the
federal convictions (from one incident) to "count" toward armed
career status--one short of the necessary number. United States
v. Caron, 941 F. Supp. 238 (D. Mass. 1996). Departing upward,
the district court in October 1996 re-sentenced Caron as an
ordinary felon in possession to 120 months. On appeal by the
government, this court reversed in an unpublished order on the
ground that (under intervening case law in this court) Caron's
civil right had not been fully "restored" after his prior
convictions. United States v. Caron, Nos. 96-2338, 96-2339 (1st
Cir. May 9, 1997). The Supreme Court granted review and
affirmed. United States v. Caron, 524 U.S. 308, 315-16 (1998).
The case was then remanded to the district court for
a new re-sentencing which in turn gives rise to the present
appeal. Although now subject to re-sentencing as an armed
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career criminal, Caron argued in the district court that he
should be granted a downward departure because he had
substantially rehabilitated himself during his latest
imprisonment. At the re-sentencing in April 1999, the district
court agreed that it had discretion to depart downward based on
post-sentence rehabilitation; but the court said that this would
be justified only "in the most rare case" and was not warranted
by the facts presented by Caron. Caron was then sentenced once
again to 262 months.
Caron now appeals from the new sentence, attacking the
denial of the downward departure. Of course, refusals to depart
are generally unreviewable, United States v. Anderson, 139 F.3d
291, 299-300 (1st Cir.), cert. denied, 525 U.S. 866 (1998), but
Caron seeks to bring himself within an established exception for
cases where the district court has misapprehended its legal
authority. United States v. Clase-Espinal, 115 F.3d 1054, 1056
n.2 (1st Cir.), cert. denied, 522 U.S. 957 (1997). This is a
tight squeeze since the district court agreed that it had
authority to depart for post-sentence rehabilitation. But Caron
says that the court still committed legal error by limiting its
authority to "the most rare case."
Passing the government's debatable claim of waiver, its
broadest line of defense is that post-sentence rehabilitation is
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never a permissible basis for departure. While there are
arguments for this view, we have rejected it in an intervening
decision after careful consideration. United States v.
Bradstreet, No. 99-1267, 2000 WL 298570, at *4-*5 (1st Cir. Mar.
27, 2000). Bradstreet said that a departure is permissible
based on post-sentence rehabilitation where the achievement is
present "to such an exceptional degree that the situation cannot
be considered typical of those circumstances in which the
explicit departure--rehabilitation in the context of acceptance
of responsibility--is normally granted." Id. at *5 (quoting
United States v. Rhodes, 145 F.3d 1375, 1383 (D.C. Cir. 1998)).
Such departures for post-sentence rehabilitation, we added,
would be "highly infrequent." Id. (quoting Koon v. United
States, 518 U.S. 81, 96 (1996)).
It is quite clear that the district court accurately
anticipated Bradstreet and well understood the extent of its
discretion to depart. There is no magic to particular terms
like "most rare," "exceptional," and "highly infrequent."
Absent a mistake of law, our review of the refusal to depart is
at an end. But we think it worth adding that nothing in Caron's
post-sentence record conflicts with the district court's
judgment that it was praiseworthy in some respects but hardly
exceptional.
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Affirmed.
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