United States v. Caron

          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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