June 23, 1993
                 UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

  No. 92-1749
                         UNITED STATES,
                            Appellee,

                               v.

                          MIRNA RIVERA,
                      Defendant, Appellant.
                                     

  No. 92-2167

                         UNITED STATES,
                           Appellant,

                               v.

                          ROBERT ADAMO,
                      Defendant, Appellee.
                                           

                          ERRATA SHEET

       Please make the following corrections in the opinion in
  the above case released on June 4, 1993:

  Page 13,  2nd  line  from  bottom:    Insert  the  following
  language after the word "state":

       that "lack of guidance  as a youth" cannot justify
       departure, U.S.S.G.   5H1.12, p.s.,

  Page  14, lines 4 &amp;  5: insert the  following language after
  "  5K2.12" and after "  4A1.3":

       ,p.s.

  Page 14, line 10:  change the word "eight" to "nine"

  Page 16, last line:  change "Guideline" to "Guidelines"

               UNITED STATES COURT OF APPEALS
                   FOR THE FIRST CIRCUIT
                                        

No. 92-1749

                       UNITED STATES,
                         Appellee,

                             v.

                       MIRNA RIVERA,
                   Defendant, Appellant.
                                     

        APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE DISTRICT OF RHODE ISLAND

        [Hon. Francis J. Boyle, U.S. District Judge]
                                                   
                                         

No. 92-2167
                       UNITED STATES,
                         Appellant,

                             v.

                       ROBERT ADAMO,
                    Defendant, Appellee.
                                      

        APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE DISTRICT OF RHODE ISLAND

       [Hon. Ronald R. Lagueux, U.S. District Judge]
                                                   
                                        

                           Before

                    Breyer, Chief Judge,
                                       
        Campbell and Bownes, Senior Circuit Judges.
                                                  

                                        

John M. Cicilline for appellant, Mirna Rivera.
                
Margaret E.  Curran, Assistant United  States Attorney, with  whom
                  
Lincoln  C.  Almond, United  States  Attorney,  and Zechariah  Chafee,
                                                                
Assistant  United States  Attorney,  were on  brief for  appellee, the
United States of America in No. 92-1749.

Margaret E.  Curran, Assistant United  States Attorney, with  whom
                  
Lincoln  C.  Almond,  United  States  Attorney,  and  Seymour  Posner,
                                                                
Assistant  United States  Attorney, were on  brief for  appellant, the
United States of America in No. 92-2167.
Eugene V. Mollicone with whom William  A. Dimitri, Jr. and Dimitri
                                                                 
&amp; Dimitri were on brief for appellee, Robert Adamo.
    

                                        

                        June 4, 1993
                                        

          BREYER, Chief  Judge.   Each of these  two appeals
                              

concerns  the district  court's power  to impose  a sentence

that departs from the Sentencing Guidelines.  The first case

involves  Mirna  Rivera,  a  single mother  of  three  small

children.   Ms.  Rivera was  convicted of  carrying about  a

pound of cocaine from  New York to Providence.   She appeals

her thirty-three month sentence of imprisonment.  She argues

that the  district court  would have departed  downward from

the minimum  thirty-three month  Guidelines prison term  but

for the court's view that it lacked the legal "authority" to

depart.   She says that this view is legally "incorrect," 18

U.S.C.    3742(f)(1),  and she  asks  us  to set  aside  her

sentence.

          The second case involves a union official,  Robert

Adamo, who embezzled about  $100,000 from his union's Health

and Welfare Fund.  The district court departed downward from

the  fifteen  to  twenty-one  month  prison  term  that  the

Guidelines  themselves would  have required.   Instead,  the

court imposed a term of probation  without confinement.  The

court  said that it was departing downward so that Mr. Adamo

could  continue to work and to make restitution to the Fund.

The  Government   appeals.      It   argues   that   Adamo's

circumstancesare insufficientlyunusualtowarrantthedeparture.

                            -4-
                             4

          We agree with  the appellants in  both cases.   In

our view, the  district court sentencing Ms. Rivera  held an

unduly narrow  view of its  departure powers.   The district

court sentencing Mr.  Adamo failed to  analyze the need  for

departure in the  way that  the law requires.   We  consider

both  cases in this single opinion because doing so may help

to    illustrate   an   appropriate   legal   analysis   for

"departures."   We  shall first  set forth  our view  of the

portion  of the law here applicable; and we shall then apply

that law to the two appeals.

                             I

                         Departures
                                   

          The basic theory of the Sentencing Guidelines is a

simple  one.   In  order  to  lessen  the  degree  to  which

different judges  imposed different sentences  in comparable

cases,   an   expert  Sentencing   Commission   would  write

Guidelines,   applicable   to   most   ordinary   sentencing

situations.  See S. Rep.  No. 225, 98th Cong., 2d Sess.  38,
                

51, 161  (1984), reprinted in 1984  U.S.C.C.A.N. 3182, 3221,
                             

3234, 3344.  In an ordinary situation, the statutes, and the

Guidelines themselves, would require  the judge to apply the

appropriate guideline  -- a  guideline  that would  normally

cabin,  within fairly  narrow limits,  the judge's  power to

                            -5-
                             5

choose  the  length  of   a  prison  term.    18   U.S.C.   

3553(a),(b).  Should the judge face a situation that was not

ordinary,  the  judge  could   depart  from  the  Guidelines

sentence,  provided  that  the  judge then  sets  forth  the

reasons for departure.   18 U.S.C.   3553(b),(c).    A court

of appeals would review the departure  for "reasonableness."

18  U.S.C.   3742.  And, the Commission itself would collect

and study both the district courts' departure determinations

and the courts of appeals' decisions, thereby learning about

the Guidelines' actual workings  and using that knowledge to

help revise or clarify  the Guidelines for the future.   See
                                                            

S. Rep. No. 225, 98th Cong.,  2d Sess. 80, 151, reprinted in
                                                            

1984 U.S.C.C.A.N.  at 3263,  3334;  U.S.S.G. Ch.  1, Pt.  A,

intro. comment 4(b).

          This  basic   theory  is  embodied   in  statutory

provisions and in  the Guidelines themselves.  We believe it

important to refer to this theory in explaining our own view

of the  legal provisions  concerning departures, and  of how

both  district  courts and  courts of  appeals are  to apply

them.

                             A

                        The Statute
                                   

                            -6-
                             6

          The Sentencing Statute itself sets forth the basic

law  governing departures.   It  tells the  sentencing court

that it

          shall impose a sentence of the kind, and
                      
          within the range  . . .  established for
          the   applicable  category   of  offense
          committed by the applicable  category of
          defendant as set forth in the guidelines
          . . . . 

18 U.S.C.    3553(b) (incorporating 18  U.S.C.   3553(a)(4))

(emphasis added).  The statute goes on immediately to create

an exception  for departures  by adding that  the sentencing

court shall "impose" this Guidelines sentence

          unless the court finds that there exists
                
          an     aggravating     or     mitigating
          circumstance of  a kind, or to a degree,
          not adequately  taken into consideration
          by   the    Sentencing   Commission   in
          formulating  the guidelines  that should
          result in a sentence different from that
          described.

18  U.S.C.   3553(b) (emphasis  added).    If the sentencing

court  makes   this  finding  and  sentences   "outside  the

[Guidelines] range," it must 

          state in  open court . .  . the specific
          reason for the  imposition of a sentence
          different  from  that described  [in the
          guidelines]. 

18  U.S.C.    3553(c).   The  defendant  may then  appeal an

upward departure,  and the Government may  appeal a downward

departure.    18  U.S.C.    3742(a),(b);  United  States  v.
                                                        

                            -7-
                             7

Pighetti,  898  F.2d 3,  4 (1st  Cir. 1990)  (beneficiary of
        

departure  decision  lacks  standing "to  complain  that the

deviation should have been greater").  On appeal, if 

          the court of appeals determines that the
          sentence . . . is unreasonable, . . . it
                                        
          shall  state  specific  reasons for  its
          conclusions  and  .  . .  set  aside the
          sentence and remand the case for further
          sentencing    proceedings   with    such
          instructions  as   the  court  considers
          appropriate.

18 U.S.C.   3742(f) (emphasis added).

          The upshot, as  we have said, is  that in ordinary

cases  the district  court  must apply  the Guidelines.   In

other cases,  the court  may depart  provided that it  gives

reasons for the departure and that the resulting sentence is

"reasonable."  The statute refers to those "other cases," as

those  where  "there  exists an  aggravating  or  mitigating

circumstance of a kind, or to a degree, not adequately taken

into consideration  by the Sentencing Commission."   But, as

we  shall  see in  a moment,  in  many cases  this statutory

limitation, as a practical matter, will have limited impact,
                          

because  the  Commission  itself  admits  that  it  has  not

adequately considered "unusual" cases.

                             B

                       The Guidelines
                                     

                            -8-
                             8

          The  Guidelines deal with departures in four basic

ways.

               1.    Cases  Outside the  "Heartland."    The
                                                   

Introduction to the Guidelines (which the Commission calls a

"Policy Statement") makes an important distinction between a

"heartland case"  and an  "unusual case."   The Introduction

says that the

          Commission intends the sentencing courts
          to treat each guideline as carving out a
          "heartland,"  a  set  of  typical  cases
          embodying   the    conduct   that   each
          guideline describes.

U.S.S.G.  Ch.  I,  Pt.  A,  intro.  comment.  (4)(b).    The

Introduction goes on to say that when

          a  court finds an  atypical case, one to
          which     a     particular     guideline
          linguistically   applies,    but   where
          conduct  significantly differs  from the
          norm, the  court may consider  whether a
          departure is warranted.

Id.  The Introduction  further adds that, with a  few stated
   

exceptions,

          the Commission does not intend  to limit
          the  kinds  of factors,  whether  or not
          mentioned    anywhere   else    in   the
          guidelines,   that    could   constitute
          grounds  for  departure  in  an  unusual
          case.

Id.
   

                            -9-
                             9

          The Introduction thus makes clear that (with a few

exceptions)  a case  that falls  outside  the linguistically

applicable  guideline's  "heartland"   is  a  candidate  for
                                                       

departure.  It is,  by definition, an "unusual case."   And,

the sentencing court may then go on to consider, in light of

the sentencing  system's purposes, see 18  U.S.C.   3553(a),
                                      

(and the Guidelines themselves) whether or not the "unusual"

features of the case justify departure.  

          It  should  now be  apparent  why  we believe  the

statutory  language  "adequately  taken into  consideration"

sometimes has little practical importance.  The statute says

that the  sentencing court considering a  departure must ask

whether the Sentencing Commission has "adequately taken into

consideration"  the  aggravating or  mitigating circumstance

that  seems to  make a  case unusual.   But,  the Commission

itself  has explicitly said that  (with a few exceptions) it
                           

did    not   "adequately"    take   unusual    cases   "into
                                           

consideration."    Of course,  deciding  whether  a case  is

"unusual"  will  sometimes  prove  a  difficult  matter  (in

respect  to which particular  facts, general experience, the

Guidelines  themselves, related  statutes,  and the  general

objectives of sentencing  all may be  relevant).  But,  once

the  court, see  pp. 15-17,  infra, has  properly determined
                                  

                            -10-
                             10

that  a  case  is, indeed,  "unusual,"  the  case becomes  a

candidate  for departure,  for  the  Commission  itself  has

answered the statutory "adequate consideration" question.

          The initial version of the Guidelines, at the risk

of redundancy, made this fact absolutely clear.  It stated:

               The new  sentencing statute permits
          a  court  to  depart  from  a guideline-
          specified  sentence  only when  it finds
          "an     aggravating    or     mitigating
          circumstance   .  .   .  that   was  not
          adequately  taken into  consideration by
          the Sentencing Commission. . . ."  Thus,
                                                  
          in   principle,   the   Commission,   by
                                                  
          specifying   that   it  had   adequately
                                                  
          considered  a  particular factor,  could
                                                  
          prevent a court from using it as grounds
                                                  
          for departure.   In this initial  set of
                                                  
          guidelines, however, the Commission does
                                                  
          not  so  limit  the   courts'  departure
                                                  
          powers.
                 

U.S.S.G. Ch.  I, Pt. A,  intro. comment. (4)(b)  (Oct. 1987)

(emphasis added)  (citation omitted).  In  later versions of

the  Guidelines, the  Commission eliminated  the underscored

language.   But, since  the "unusual case"  statement (i.e.,
                                                           

the statement  that the "Commission does not intend to limit

the kinds of factors . . . that could constitute grounds for

departure in  an unusual case") expresses  the same thought,

the  excision  presumably  reflected  an  intent  to   avoid

redundancy,  not  to  change  the meaning  of  the  section.

Indeed,  the  Commission has  not  suggested  any intent  to

                            -11-
                             11

change its meaning.   See U.S.S.G. App. C, amend.  307 (Nov.
                         

1990)   ("language  concerning   what  the   Commission,  in

principle, might have done is deleted as unnecessary, but no

substantive change is made").  Thus, (with a few exceptions)

the  law  tells the  judge,  considering  departure, to  ask

basically, "Does  this case fall within  the 'heartland,' or

is it an unusual case?"

               2.    Encouraged  Departures.     In  certain
                                           

circumstances,  the  Guidelines  offer the  district  court,

which is considering whether  to depart, special assistance,

by  specifically encouraging  departures.   Part 5K  lists a

host  of  considerations that  may  take  a particular  case

outside the "heartland" of  any individual guideline and, in

doing  so, may warrant a  departure.  See  U.S.S.G.   5K2.0,
                                         

p.s.   The individual guidelines  do not  take account,  for

example,  of  an  offender's  "diminished  capacity,"  which

circumstance,  in  the  Commission's  view   would  normally

warrant  a downward departure.  U.S.S.G.   5K2.13, p.s.  Nor

do  certain guidelines (say, immigration offense guidelines)

take account of, say, use of a gun, which circumstance would

remove  the situation  (the  immigration offense)  from that

guideline's "heartland" and would normally warrant an upward

departure.    U.S.S.G       5K2.0,  5K2.6,  p.s.    Specific

                            -12-
                             12

individual  guidelines may  also encourage departures.   The

guideline governing transportation of persons for prohibited

sexual conduct, for example, recommends a downward departure

of eight  levels where  the offense involves  neither profit

nor  force.  U.S.S.G.   2G1.1, comment. (n.1).  A sentencing

court  facing  such  non-heartland  circumstances  can  feel

confident, because  of this encouragement,  that a departure

would not be "unreasonable."  18 U.S.C.   3742(f). 

               3.   Discouraged Departures.   The Guidelines
                                          

sometimes  discourage departures.    Part  5H, for  example,

lists  various "specific offender"  characteristics, such as

age,   education,  employment   record,   family  ties   and

responsibilities,  mental  and   physical  conditions,   and

various good works.  The  Guidelines say that these features

are  "not ordinarily  relevant"  in determining  departures.
                    

U.S.S.G.  Ch. 5,  Pt. H  (emphasis added).    The Commission

thereby recognizes that (1)  the individual guidelines (with

a few exceptions) do not provide adjustments reflecting such

circumstances, yet (2)  this fact alone  does not make  such
                                                 

circumstances  automatically  sufficient   to  transform   a

"heartland"  case   into  an  "unusual"   case  outside  the

heartland.  

                            -13-
                             13

          At the same  time, the Commission  recognizes that

such circumstances  could remove a case  from the heartland,
                         

but only if they are present  in a manner that is unusual or

special,  rather  than "ordinary."    See  United States  v.
                                                        

Merritt, No. 91-1637,  slip op.  at 25-26 (2d  Cir. Feb.  9,
       

1993).  It  may not be unusual, for example,  to find that a

convicted  drug  offender is  a  single  mother with  family

responsibilities,   but,  at  some  point,  the  nature  and

magnitude  of family  responsibilities (many  children? with

handicaps?  no  money? no  place  for children  to  go?) may

transform the  "ordinary" case of such  circumstances into a

case that is not at all ordinary.  

          Thus, a sentencing  court, considering whether  or

not  the presence  of  these "discouraged"  factors warrants

departure, must  ask  whether  the  factors  themselves  are

present  in  unusual kind  or  degree.   The  Commission, in

stating that those factors do  not "ordinarily" take a  case

outside the heartland, discourages,  but does not absolutely

forbid, their use.   See, e.g., Merritt, slip op.  at 25-26;
                                       

United States  v. Deigert,  916 F.2d 916,  918-19 (4th  Cir.
                         

1990).  But see United States v. Thomas, 930  F.2d 526, 529-
                                       

30   (7th  Cir.)  (forbidding  departures  based  on  family

                            -14-
                             14

responsibilities, except  where probation  or  fines are  at

issue), cert. denied, 112 S. Ct. 171 (1991). 
                    

               4.  Forbidden Departures.  The Commission has
                                       

made several explicit exceptions to the basic principle that

a sentencing court can consider any "unusual case" (any case

outside the  heartland) as a  candidate for departure.   The

Guidelines  state that "lack of  guidance as a youth" cannot

justify   departure,  U.S.S.G.      5H1.12,  p.s.,   that  a

sentencing court  "cannot take  into account as  grounds for

departure" race, sex, national  origin, creed, religion, and

socio-economic  status.    U.S.S.G.     5H1.10,  p.s.    The

Guidelines  also state that drug  or alcohol abuse  is not a

reason for  imposing a sentence below  the Guidelines range,

U.S.S.G      5H1.4,  p.s.,  and   that  personal   financial

difficulties and economic pressure  upon a trade or business

do  not warrant a decrease  in sentence.  U.S.S.G.   5K2.12,

p.s.; cf. Williams v.  United States, 112 S. Ct.  1112, 1117
                                    

(1992)  (under U.S.S.G.    4A1.3,p.s.,  prior arrest  record

cannot provide reliable  evidence of prior criminal  conduct

warranting upward  departure).  Thus, even  if these factors

make  a  case "unusual,"  taking  it  outside an  individual

guideline's heartland,  the sentencing court is  not free to

consider departing.   But,  with these nine  exceptions, the

                            -15-
                             15

sentencing court is  free to consider,  in an unusual  case,

whether or  not  the factors  that  make it  unusual  (which

remove it from the heartland) are present in sufficient kind

or degree to warrant  a departure.  See U.S.S.G. Ch.  I, Pt.
                                       

A,  intro. comment. 4(b).  The court retains this freedom to

depart whether such departure is encouraged, discouraged, or

unconsidered by the Guidelines.

                            -16-
                             16

                             C

         The Sentencing Court's Departure Decision
                                                  

          Given the  statutory provisions, and  the relevant

Guidelines statements,  we suggest  (but we do  not require)

that, as  an initial matter, a  sentencing court considering

departure analyze the case along the following lines:

          1)   What   features   of   this   case,
          potentially,   take   it   outside   the
          Guidelines' "heartland" and make of it a
          special, or unusual, case?

          2)   Has    the   Commission   forbidden
          departures based on those features?

          3) If not, has the Commission encouraged
          departures based on those features?

          4)   If   not,   has    the   Commission
          discouraged  departures  based on  those
          features?

If no special features  are present, or if  special features

are also "forbidden" features, then the sentencing court, in

all likelihood, simply would apply the  relevant guidelines.

If the special features are "encouraged" features, the court

would likely  depart,  sentencing  in  accordance  with  the

Guidelines'  suggestions.    If  the  special  features  are

"discouraged"  features, the  court  would go  on to  decide

whether  the  case  is  nonetheless  not  "ordinary,"  i.e.,
                                                           

whether  the case  differs from  the ordinary case  in which

those  features are present.   If the case  is ordinary, the

                            -17-
                             17

court would  not depart.  If  it is not ordinary,  the court

would go on to consider departure.

          Of course, this analysis, by itself, does not help

the district court decide what to do in situations where the

Guidelines   do   not   expressly   forbid,   encourage,  or

discourage, departures.  The Guidelines themselves recognize

that the  "[c]ircumstances that may  warrant departure  from

the  guidelines .  .  . cannot,  by  their very  nature,  be

comprehensively listed and analyzed in advance."  U.S.S.G.  

5K2.0, p.s.   When such unforeseen  circumstances arise, the

district  court will decide  whether to depart  (and, if so,

how much  to depart)  by examining  the "unusual"  nature of

these  circumstances and  making  a judgment  about what  is

appropriate.   The  structure  and theory  of both  relevant

individual guidelines  and the  Guidelines taken as  a whole

may inform that judgment.  The sentencing statute also lists

generally relevant sentencing factors, including the "nature

and  circumstances   of  the  offense,"  the   "history  and

characteristics of the defendant," and the basic purposes of

sentencing,    namely,    just    punishment,    deterrence,

incapacitation  and rehabilitation.    18 U.S.C.    3553(a);

United States  v. Merritt, slip op. at  18-19, 25-26 (citing
                         

Daniel  J.   Freed,  Federal  Sentencing  in   the  Wake  of
                                                            

                            -18-
                             18

Guidelines:  Unacceptable  Limits   on  the  Discretion   of
                                                            

Sentencers,  101 Yale  L.J.  1681,  1700,  1730-31  (1992)).
          

Ultimately,  however,  the  Guidelines  cannot  dictate  how

courts should  sentence in  such special, unusual  or other-

than-ordinary circumstances.  And, that  is as it should be.

As we have said, see pp.  4-5, supra, the very theory of the
                                    

Guidelines  system   is  that  when   courts,  drawing  upon

experience and  informed judgment  in such cases,  decide to

depart, they will explain  their departures.  The courts  of

appeals, and  the Sentencing  Commission, will  examine, and

learn  from, those  reasons.   And, the  resulting knowledge

will  help  the Commission  to  change,  to refine,  and  to

improve, the  Guidelines themselves.  That is  the theory of

partnership that the Guidelines embody.

                             D

                      Review on Appeal
                                      

          If  the  district  court decides  to  depart,  the

defendant may appeal (an upward departure) or the Government

may appeal (a downward departure).  18 U.S.C.   3742(a),(b);

see also  United States  v. Pighetti,  898 F.2d  at 4.   The
                                    

statute then provides the appellate court with two important

instructions.  First,  the court of  appeals must decide  if

the resulting  sentence is "unreasonable, having regard for"

                            -19-
                             19

the sentencing  court's reasons  and  the statute's  general

sentencing  factors.  18  U.S.C.   3742(e)(3).   Second, the

court of appeals must (as it ordinarily does) give "specific

reasons" for its decision.   18 U.S.C.   3742(f)(2).   These

two  instructions,  taken  together,  help assure  that  the

courts  of appeals,  with their  more distant,  yet broader,

perspective, will  also play an important  indirect (as well

as  the obvious direct)  role in the  further development of

Guidelines.     They  play  this  "indirect   role"  as  the

Commission  examines the  courts of  appeals' decisions  and

reacts, through revision, or reiteration, of the Guidelines.

          The result is a  partnership in which each partner

enjoys  a different  institutional  strength.   The district

court may best understand the relation of the  Guidelines to

case-specific, detailed  facts.   Its experience permits  it

directly  to form  a judgment  as to  when certain  kinds of

circumstances seem better handled by judicial discretion and

how  courts ought to exercise that discretion.  At the other

end of the spectrum, the Sentencing Commission, by gathering

information produced by many individual courts, can view the

sentencing  process   as  a   whole,   developing  a   broad

perspective on  sentencing, which will help  it produce more

                            -20-
                             20

consistent  sentencing  results  among   similarly  situated

offenders  sentenced by  different  courts.   The courts  of

appeals see  sentences from  an intermediate  vantage point.

They  devote  considerable time  and  effort  to a  district

court's determination  in a  particular case, while,  at the

same time, placing that case within a broader perspective of

sentencing law.

          Recognizing  this relationship, we  have held that

appellate courts  must recognize a degree  of district court

autonomy when  they review certain aspects  of the departure

decision.  In  United States v. Diaz-Villafane, 874  F.2d 43
                                              

(1st Cir.) cert. denied, 493 U.S. 862 (1989), we pointed out
                       

that appellate review  of a decision  to depart may  involve

three  subsidiary questions:  1)  review of  the  departure-

related circumstances  to determine  "whether  or not"  they

"are  of a  kind or  degree that  they may  appropriately be

relied  upon  to  justify  departure;"    2) review  of  the

evidence  to  see  if   it  supports  the  departure-related

findings  of fact; and 3) review of the "record support" for

"the direction  and degree" of  departure.   Id. at 49.   We
                                                

held that in the second, and the third, instance, an appeals

court must allow  the district court  a degree of  "leeway."

Review of factfinding is for "clear  error."  Id.  Review of
                                                 

                            -21-
                             21

departure "direction and degree"  will take place with "full

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

"superior 'feel' for the case." Id. at 50; see also Bruce M.
                                                   

Selya  &amp;  Matthew  R.   Kipp,  An  Examination  of  Emerging
                                                            

Departure   Jurisprudence   Under  the   Federal  Sentencing
                                                            

Guidelines, 67 Notre Dame L. Rev. 1, 39-40 (1991).
          

          We also  stated, however,  that in respect  to the

first matter ("whether or not"  the circumstances "are of  a

kind  or  degree" to  warrant  a  departure), our  appellate

review was "essentially plenary." Diaz-Villafane 874 F.2d at
                                                

49.   This phrase suggested review that provides no "leeway"

for the district  court.   We now consider  it necessary  to

elaborate   our  meaning  and   to  modify,   somewhat,  our

application of  Diaz-Villafane in  later cases.   See United
                                                            

States  v. Carr, 932 F.2d  67, 72 (1st  Cir.), cert. denied,
                                                           

112 S. Ct. 112 (1991); United States v. Pozzy, 902 F.2d 133,
                                             

138 (1st Cir.), cert. denied, 498 U.S. 943 (1990).  (Through
                            

circulation of a draft opinion, we have obtained approval of

all active judges for  doing so.  See, e.g.,  Trailer Marine
                                                            

Transport Corp. v.  Rivera Vasquez, 977 F.2d 1, 9  n. 5 (1st
                                  

Cir. 1992)).  Our elaboration, and modification, consists of

distinguishing  certain decisions  in  this  category  where

review  should take  place  without  "leeway,"  from  others

                            -22-
                             22

where, despite the technically legal nature of the question,

we nonetheless should review  with "full . . .  respect for"

the  sentencing  court's  "superior 'feel'  for  the  case."

Diaz-Villafane,  874   F.2d  at  50.     We  recognize  that
              

application of our  elaboration and modification to  earlier

decided cases might have meant different results.

          Plenary review is  appropriate where the  question

on  review is simply  whether or  not the  allegedly special

circumstances (i.e.,  the reasons for departure)  are of the

"kind"  that  the  Guidelines,   in  principle,  permit  the
                                              

sentencing  court to consider at all.  As we have previously

pointed out, departures  for some  reasons are  "forbidden,"

see  pp.  13-14, supra,  and  departures  for certain  other
                      

reasons  are "discouraged"  unless the  case is  out of  the

ordinary, see pp. 12-13,  supra.  Were a district  court (1)
                               

to try to depart for a "forbidden" reason, or were it (2) to

try to depart for a "discouraged" reason without recognizing
                                                            

that it must explain  how the case (compared to  other cases
                                                            

where the reason is present) is special, its departure would
                                       

not  be lawful.  The district court has no special expertise

in   deciding   whether   a   factor   is   "forbidden"   or

"discouraged."  Hence, there  is no reason to review  such a

decision with any "leeway" or "deference."

                            -23-
                             23

          Plenary  review  is  also  appropriate  where  the

appellate court, in deciding  whether the allegedly  special

circumstances are  of a "kind" that  permits departure, will

have to  perform the "quintessentially legal"  function, see
                                                            

Diaz-Villafane, 874  F.2d at  49, of  interpreting a  set of
              

words,  those of an individual guideline,  in light of their

intention or purpose, in order to identify the nature of the

guideline's "heartland"  (to see  if  the allegedly  special

circumstance falls  within it).  Is  the "child pornography"

guideline,  for example,  aimed  only  at child  pornography

consumers  who are also child molesters, so that a purchaser

who is  not also a  molester falls outside  its "heartland?"

See  United States v. Studley,  907 F.2d 254,  258 (1st Cir.
                             

1990) (the fact that recipient  of child pornography was not

also a child  molester does  not make the  case unusual  nor

remove  it  from  the  heartland of  the  child  pornography

guideline);  United States v.  Deane, 914  F.2d 11,  14 (1st
                                    

Cir. 1990)  (following Studley).  Here,  again, the district
                              

court has no special  competence in performing this  kind of
                    

classical  textual  analysis.    Hence,  a reviewing  court,

deciding  whether   the  district  court   has  "incorrectly

applied" a  guideline, 18  U.S.C.   3742(f)(1);  Williams v.
                                                         

United States, 112 S.  Ct. 1112, 1120 (1992), need  not give
             

                            -24-
                             24

the  district court's  answer to  a question  involving this

kind of analysis any special weight.

          In many other instances,  not anticipated by Diaz-
                                                            

Villafane,  the district court's decision that circumstances
         

are of  a "kind," or  "degree," that warrant  departure will

not involve a "quintessentially legal" interpretation of the
   

words of a guideline,  but rather will amount 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.   A district

court may well have a special competence in making this kind

of determination,  because it may  have a better  "feel" for

the unique  circumstances of the particular  case before it.

A district court is  also likely to have seen  more ordinary
                                                            

Guidelines   cases,  for  appellate  courts  hear  only  the

comparatively  few cases  that  counsel  believe  present  a

colorable appeal.  See The Federal Sentencing Guidelines:  A
                                                            

Report on  the Operations of  the Guidelines System  49, 245
                                                   

(December 1991) (85% of Guidelines  sentences not appealed).

To ignore  the district court's special  competence -- about

the "ordinariness" or "unusualness"  of a particular case --

would   risk  depriving  the  Sentencing  Commission  of  an

important source  of information,  namely, the reactions  of

                            -25-
                             25

the trial  judge to  the fact-specific circumstances  of the

case,  which  reactions,  reduced  to  written  reasons  for

departure, can  help the  Commission determine  whether, and

how,  Guidelines  revision should  take  place.   See  p. 5,
                                                     

supra; U.S.S.G. Ch.1,  Pt. A intro. comment.  (4)(b).  Thus,
     

appellate   courts  should   review  the   district  court's

determination of "unusualness" with "full awareness of,  and

respect  for, the  trier's  superior 'feel'  for the  case,"

Diaz-Villafane, 874  F.2d at 50, not  with the understanding
              

that review is "plenary."  Contra United States v. Carr, 932
                                                       

F.2d at 72; United States v. Pozzy, 902 F.2d at 138.
                                  

          As we have said, Diaz-Villafane mandated appellate
                                         

court "respect" for sentencing court determinations  of fact

and of "direction and degree."  We now extend that "respect"

to sentencing  court  determinations  of  whether  (and  the

extent to  which) given circumstances make  a case "unusual"

or "not ordinary."  We believe this view consistent with the

Supreme Court's recent statement that,

          except   to   the  extent   specifically
          directed by statute, "it is not the role
          of an appellate court to  substitute its
          judgment  for  that  of  the  sentencing
          court  as to  the  appropriateness of  a
          particular sentence." 

Williams v. United States, 112 S. Ct. at 1121 (quoting Solem
                                                            

v. Helm, 463 U.S. 277, 290 n.16 (1983));  see also Wiliam W.
                                                  

                            -26-
                             26

Wilkins, Jr.,  Sentencing Reform  and  Appellate Review,  46
                                                       

Wash. &amp; Lee L. Rev. 429, 443 (1989) (it is  not "appropriate

for the appellate court to simply substitute its judgment de
                                                            

novo for that of  the sentencing court").  Our view  is also
    

consistent  with Congress'  instruction that  appeals courts

"shall   affirm"  reasonable  departures.     18   U.S.C.   

3742(f)(2)-(3).  And, it  is consistent with appellate court

efforts  generally to  conduct judicial  review in  light of

comparative institutional  competence.  Cf. United States v.
                                                         

Wright,  873  F.2d 437,  444  (1st  Cir. 1989)  (deferential
      

review  under Guidelines where issue is "one that is founded

'on   the  application   of   the  fact-finding   tribunal's

experience with the mainsprings of human conduct'") (quoting

United States v.  McConney, 728 F.2d 1195,  1202 (9th Cir.),
                          

cert.  denied  469  U.S.  824  (1984))  (citation  omitted);
             

Mayburg v. Secretary of Health &amp; Human Servs., 740 F.2d 100,
                                             

105-07 (1st Cir. 1984); see also INS v. Cardoza-Fonseca, 480
                                                       

U.S.  421, 445-48  (1987)  (citing Chevron  U.S.A., Inc.  v.
                                                        

Natural Resources Defense Council,  Inc., 467 U.S. 837, 843,
                                        

n.9 (1984)).

                             II

                   Applying the Analysis
                                        

                            -27-
                             27

          We now  apply  our  "departure"  analysis  to  the

circumstances  of the two cases before us, the appeal of Ms.

Mirna Rivera, and that of Mr. Robert Adamo.

                            -28-
                             28

                             A

                        Mirna Rivera
                                    

          For purposes of this appeal, we take Ms. Rivera to

have transported  about one pound of cocaine,  from New York

to Providence, with intent to distribute it, in violation of

21 U.S.C.   841(a)(1), (b)(1)(B).  The Guidelines  provide a

sentence  of 33 to 41  months imprisonment for  a first time

offender who  has  engaged in  this conduct.   See  U.S.S.G.
                                                  

  2D1.1(a)(3)(c)(10)  (base offense  level of  24); U.S.S.G.

  3B1.2(a)    (reduction   of    4   points    for   minimal

participation); U.S.S.G.  Ch. 5,  Pt. A  (sentencing table).

Ms.  Rivera argued  to  the district  court  that it  should

depart  downward  from  this  Guidelines  sentence  for  the

following reasons:

          1)  she has  three small  children, ages
          three,   five,  and  six,   who  need  a
          mother's care;

          2)   she   lives   solely  on   welfare,
          receiving  no  financial  aid  from  her
          former husband;

          3) she has virtually no contact with any
          other  family  member   (except  for   a
          sister,  with  five  children,  also  on
          welfare);

          4) she  has never before engaged  in any
          criminal activity;
          and,

                            -29-
                             29

          5)  she  committed  this single  offense
          because  of  an  unwise wish  to  obtain
          money  for  Christmas  presents for  her
          children.

The  district court decided  not to  depart.   Rivera claims

that this  decision reflects  the  court's incorrect  belief

that it lacked the legal authority to depart.  And, she asks

us  to order  a  new  proceeding.    See  United  States  v.
                                                        

Castiello, 915 F.2d  1, 5-6 (1st Cir.  1990) (new proceeding
         

needed where district court  wrongly thought it lacked legal

power  to depart,  but  not where  it  simply chose  not  to

exercise  this  authority), cert.  denied,  111  S. Ct.  787
                                         

(1991). 

          After  reviewing  the  record  of  the  sentencing

proceeding,  we  conclude  that  Rivera  is  correct.    The

district  court's  analysis of  the nature  of its  power to

depart is not consistent with the view of departures that we

set  forth  in this  opinion.    We recognize  a  difference

between "forbidden  departures," see pp.  13-14, supra,  and
                                                      

"discouraged  departures," see  pp. 12-13,  supra.   And, we
                                                 

believe  that the district court did not realize that it had

the legal  power to  consider departure, where  departure is

discouraged (but not forbidden), if it finds features of the

case that show it is not ordinary.  See pp. 12-13, supra.
                                                        

                            -30-
                             30

          At  the sentencing  hearing,  the  district  court

said:

          With  respect  to  Defendant's  argument
          that  the Defendant's  family situation,
          economic    situation,    warrants     a
          departure,   I   must   say   that   the
          guidelines   are   drawn  to   apply  to
          everyone in exactly  the same way,  that
          it is clear from the guidelines that the
          economic   situation   and  the   family
          situation  of the  Defendant  is  not  a
          consideration.    There  are  those  who
          certainly would disagree with  that, but
          that is the  principle that is  embodied
          in the  guidelines.  They are age blind,
                                                 
          they  are sex blind,  they are  blind to
                                                  
          family circumstances, and can  result in
                              
          their application in a certain amount of
          cruelty.   But, that  isn't a  basis for
          making  a departure.   It's  a situation
                                                  
          where somebody tries  to draw a straight
                                                  
          line  that  applies  to every  situation
                                                  
          that can possibly  arise and this  Court
                                                  
          is without discretion to take what might
                                                  
          well  be  thought  by  most  people,  at
                                                  
          least,    legitimate    concerns    into
                                                  
          consideration.   Simply put, I  can't do
                                                  
          that  because  the  guidelines   do  not
                                                  
          permit  me   to  do   that.    So   that
                                     
          Defendant's objection or request to make
          a downward departure is denied . . . . 

          Your Counsel says that a court somewhere
          observed that these guidelines are not a
          straightjacket  for  a  District  Court.
          Well, I don't agree  with that.  Here is
          a circumstance where I'm  satisfied that
          the reason you did  this was to buy toys
          for your children at Christmas.  It  was
          a  serious  mistake.   The  pre-sentence
          report says this:

               There   is    no   information
               suggesting that Ms. Rivera had

                            -31-
                             31

               any previous participation  in
               a   similar    type   criminal
               activity.     The  Defendant's
               lifestyle is not indicative of
               that of a  drug dealer who has
               profited from ongoing criminal
               activity.   Rather she appears
               destitute,  relying on  public
               assistance to  support herself
               and her children.

          . . . If I had the authority to do it, I
                                                  
          would not impose the sentence that I  am
                                                  
          about  to  impose.   I  would  impose  a
                            
          lesser  sentence  because  I think  that
          these guidelines  simply are unrealistic
          when  applied  to  real life  situations
          like  this.    They  may  work  in  many
                                                  
          circumstances, but  they certainly don't
                                                  
          work here.
                    

(Emphasis added).  

          In these  statements,  the court  repeatedly  said

that it lacked the  legal power to depart; it  characterized

the   case   before  it   as   different   from  the   "many

circumstances"  where  the Guidelines  might work;  it added

that  it  would depart  if it  could;  it set  forth several

circumstances that might make the case a special one; and it

described  as identical  ("sex blind"  and "blind  to family

circumstances")   guidelines   that,    in   fact,    differ

significantly, the former involving a "forbidden" departure,

and the latter a  "discouraged" departure.  Compare U.S.S.G.
                                                   

   5H1.10, p.s. with    5H1.6, p.s; compare  also pp. 13-14,
                                                 

supra with pp. 12-13, supra.  Taken together, these features
                           

                            -32-
                             32

of the  case warrant a new  sentencing proceeding, conducted

with the district court  fully aware of its power  to depart

in "unusual cases" and where family circumstances are out of

the "ordinary."

          Of course, we  should not (and would  not) order a

new proceeding  were  the proceeding  pointless, i.e.,  were
                                                     

there  no   significant  possibility  that   the  facts  and

circumstances  would permit  the district court  lawfully to

order  a departure.  See  United States v.  Rushby, 936 F.2d
                                                  

41, 42 (1st Cir. 1991).  Yet, we cannot say this is so.   We

have  examined   the  case  law  and   found  several  cases

permitting departure in  similar, or even less  sympathetic,

circumstances.  See United States v. Johnson, 964 F.2d  124,
                                            

128-30 (2d Cir. 1992)  (sole responsibility for raising four

children); United  States v. Alba,  933 F.2d 1117,  1122 (2d
                                 

Cir. 1991)  (twelve-year marriage, two children, living with

disabled,  dependent father and  grandmother); United States
                                                            

v.  Pena, 930  F.2d 1486,  1494-95 (10th Cir.  1991) (single
        

parent  of  infant and  sole  supporter  of sixteen-year-old

daughter and daughter's infant);  United States v. Big Crow,
                                                           

898 F.2d  1326, 1331-32  (8th Cir.  1990) (solid  family and

community ties and "consistent efforts to lead a decent life

in [the] difficult environment"  of an Indian  reservation).

                            -33-
                             33

See also United States  v. Gaskill, No. 92-5588, slip op.(3d
                                  

Cir.  April  16,  1993)  (defendant's  responsibilities  for

mentally ill wife might justify departure).   

          We   have   also  found   many   cases  forbidding

departures  for reasons related  to family responsibilities,

but they seem to  involve circumstances less compelling than

those before us.   See  United States v.  Chestna, 962  F.2d
                                                 

103, 107 (1st  Cir.), cert.  denied, 113 S.  Ct. 334  (1992)
                                   

(defendant  was single  mother  of  four  children);  United
                                                            

States v. Mogel, 956 F.2d 1555,  1565 (11th Cir.) (defendant
               

supported  two minor  children  and  live-in mother),  cert.
                                                            

denied, 113 S. Ct.  167 (1992); United States v.  Cacho, 951
                                                       

F.2d  308, 311  (11th Cir. 1992)  (defendant had  four small

children);  United States  v. Berlier,  948 F.2d  1093, 1096
                                     

(9th Cir. 1991) (defendant  sought to keep family together);

United   States  v.  Carr,  932   F.2d  67,  72  (1st  Cir.)
                         

(codefendants were  parents of  young child),  cert. denied,
                                                           

112 S. Ct.  112 (1991);  United States v.  Shoupe, 929  F.2d
                                                 

116, 121 (3d Cir.) (defendant was  father who regularly made

child support  payments and frequently spoke  with young son

living with ex-wife),  cert. denied, 112 S.  Ct. 382 (1991);
                                   

United  States  v.  Brand,  907  F.2d  31,  33  (4th   Cir.)
                         

(defendant was sole custodial parent of two children), cert.
                                                            

                            -34-
                             34

denied, 498 U.S.  1014 (1990);  United States  v. Neil,  903
                                                      

F.2d 564, 566  (8th Cir. 1990) (defendant had  stable family

life);  United States v. Pozzy, 902 F.2d 133, 139 (1st Cir.)
                              

(defendant pregnant and  husband imprisoned), cert.  denied,
                                                           

498  U.S. 943 (1990); United States v. Brewer, 899 F.2d 503,
                                             

508-09 (6th Cir.) (defendant  was mother of young children),

cert. denied, 498 U.S. 844 (1990).  
            

          The upshot is a  difficult departure decision.  On

the  one hand  lie  a host  of  quite special  circumstances

(though  many  are of  the "discouraged"  sort), and  on the

other  hand lies the simple  fact that Ms.  Mirna Rivera did

transport a  pound of cocaine  from New York  to Providence.

This is the  kind of case  in which, if  the district  court

departs,  its informed views as  to why the  case is special

would seem  especially useful  and  would warrant  appellate

court "respect."  See pp. 23-24, supra.
                                      

          We remand the case for further proceedings.

                             B

                        Robert Adamo
                                    

          Mr.  Adamo  was  convicted  of   embezzling  about

$100,000 belonging to  the union Health and  Welfare Fund of

which he was a fiduciary,  in violation of 18 U.S.C.    664.

He accepted responsibility for  the crime, U.S.S.G.   3E1.1.

                            -35-
                             35

It was his first offense.  The Guidelines provided a minimum

prison term  of  fifteen months.    See U.S.S.G.      2E5.2,
                                       

2B1.1,  3B1.3 (base offense level of 4; increase of 8 points

for  amount of  loss;  2  level  enhancement for  more  than

minimal  planning;  2  level  enhancement   for  fiduciary);

U.S.S.G.  Ch. 5,  Pt.  A (sentencing  table).   The district

court, departing downward from the Guidelines, sentenced Mr.

Adamo to probation alone, without any imprisonment. 

          The  court gave  the  following  reasons  for  its

downward departure:

               When  I  look  at  these  cases  of
          sentencing, the first thing I ask myself
          is,  "What sentence  would  I impose  if
          there were no guidelines?"   That's what
          I did for more than 20 years.  And  then
          I ask myself, "What's a just sentence in
          these circumstances?   Am I  going to be
          limited  by these  artificial guidelines
          made by people who  have no idea of what
          kind  of a  case  I'm going  to have  to
          decide?"  No two cases are the same. . .
          . 

               So  that's where justice is in this
          case,  having  restitution made  to this
          Health &amp;  Welfare Fund.  If  I send this
          defendant   to   prison  I   think  it's
          foreordained  that restitution  will not
          be  made.    It  may  be  made  in  some
          respect,  but  I'm  sure  the  defendant
          would lose both his jobs and would  find
          it  very  difficult  to have  employment
          which   would   allow   him    to   make
          restitution.  And a time in prison would
          serve  no useful  purpose in  this case.
          The  only  factor  in  sentencing  which

                            -36-
                             36

          would be accomplished is punishment, but
          the defendant has  been punished just by
          being here -- just  being here and  what
          he's gone through in the last  6 months,
          and   the  notoriety   of  this.     So,
          imprisonment serves no useful purpose in
          this case.  It  certainly isn't a matter
          of deterrence.   I'm sure  the defendant
          will never do anything like this again.

               Here is  a  man who  has  lived  an
          exemplary life, he's worked two  jobs to
          take care  of his family.   His wife has
          worked, and although they were making in
          the range of $70,000 a year, the problem
          of educating two children came up.  It's
          a problem  that everyone faces.  This is
          where  the error  of judgment  comes in.
          He took  this money,  not out  of greed,
          not out of desire to own a fancy  car or
          a  palatial  home  and a  boat,  but  to
          educate his children.   He didn't  think
          about  the  other  alternatives.     His
          daughter  wanted to  go to  an expensive
          private  school, instead  of going  to a
          local state school of  some sort, and he
          thought that's what she should have.  He
          didn't consider loans and other types of
          programs.  This  money was available, he
          took  it  -- a  terrible  mistake.   But
          that's the only mistake that he seems to
          have made,  and  I just  don't think  he
          should  spend time in  prison because of
          this one mistake.

               I  want  restitution  made, so  I'm
          going  to exercise  my best  judgment in
          these circumstances.   My best  judgment
          is to  have as long a  term of probation
          as possible so  that restitution can  be
          made with the  guidance of the probation
          office.

               So,  I'm  going to  depart downward
          and  impose  a  term of  probation  of 5
          years.   That's the  maximum that  I can

                            -37-
                             37

          impose.   And  one of the  conditions of
          probation  will  be,  and is,  that  the
          defendant shall pay  restitution in  the
          amount  of  $91,125.62 to  the  Health &amp;
          Welfare  Fund  of  the Building  Service
          Employees  International Union,  AFL-CIO
          Local 334.

          The court's explication of its  reasons is useful,

for  it produces understanding  and permits evaluation, both

by  appellate courts and by  the Commission.  We nonetheless

believe the  analysis does  not permit the  departure before

us.

          First, we believe (deciding the question as a pure

matter of law,  see pp. 21-22, supra) that  the embezzlement
                                    

guidelines encompass, within their "heartland," embezzlement

accompanied by normal  restitution needs and  practicalities
                     

(i.e., the  simple facts  that restitution is  desirable and
     

that a prison term will make restitution harder to achieve).

It  would  seem   obvious,  and  no  one  denies,  that  the

embezzlement guidelines  are written  for ordinary  cases of

embezzlement, that  restitution is  called for in  many such

cases, and that prison terms often make restitution somewhat

more  difficult  to  achieve.    Moreover, the  embezzlement

guideline  reflects  the  Commission's  intent  to  equalize

punishments for "white collar" and "blue collar" crime.  See
                                                            

United States Sentencing Commission, Supplementary Report on
                                                            

                            -38-
                             38

the Initial Sentencing  Guidelines and Policy  Statements 18
                                                         

(1987); Hearings  Before the Senate Comm.  on the Judiciary,
                                                           

100th  Cong., 1st Sess. 54-55  (October 22, 1987).   Yet, as

the Sixth Circuit has pointed out, 

          a  rule  permitting greater  leniency in
          sentencing  in  those  cases   in  which
          restitution  is   at  issue  and   is  a
                                          
          meaningful possibility  (i.e., generally
          white collar crimes) would . . . nurture
          the  unfortunate  practice of  disparate
          sentencing   based   on   socio-economic
          status,   which   the  guidelines   were
          intended to supplant.

United States v. Harpst,  949 F.2d 860, 863 (6th  Cir. 1991)
                       

(citing U.S.S.G.    5H1.10, p.s. (socio-economic  status not

relevant  in  determination  of  sentence)).   Further,  the

district court itself, stating  that it did not wish  "to be

limited by  these artificial  guidelines," and that  "no two

cases are alike," seemed to disregard, rather than  to deny,

the scope of the embezzlement guideline.  For these reasons,

we join  the  Fourth and  Sixth  Circuits, in  holding  that

ordinary restitution circumstances of  this sort do not fall
        

outside  the  embezzlement   guideline's  "heartland,"   and

therefore  do not warrant a downward departure.  See Harpst,
                                                           

949 F.2d at  863; United  States v. Bolden,  889 F.2d  1336,
                                          

1340 (4th Cir. 1989).

                            -39-
                             39

          Second,  we recognize  that  a special  need of  a
                                                

victim for restitution, and the  surrounding practicalities,

might, in an  unusual case,  justify a departure.   But,  we

cannot review a district  court determination to that effect

here,  for the  district court  made no  such determination.

(Although,  had  it  done  so,  we  would  have treated  its

determination with "respect."   See pp.  23-24, supra.)   We
                                                     

mention this fact because the  defendant has pointed to  one

unusual  feature of the case.  The record before us contains

a  suggestion  that  Mr.  Adamo  could  keep  his  job  (and

therefore remain  able to make restitution)  were his prison

term only one year, but he  could not keep his job (and thus

would  lose  his  ability   to  make  restitution)  were  he

sentenced  to the  Guidelines prison  term of  one year  and

three  months.   We  can imagine  an argument  for departure

resting  upon a  strong need  for restitution,  an important

practical advantage to the  lesser sentence, and a departure

limited to three months.  

          We are not urging such a  departure or saying that

we  would eventually find it lawful.  We mention the special

circumstance to  underscore the need  for reasoned departure

analysis, sensitive to the way in which the Guidelines  seek

to structure departure  decisions and to the  role that such

                            -40-
                             40

departures, and their accompanying  reasons, can play in the

continued development of the Sentencing Guidelines.  We have

explained why  the district court's analysis,  about how the

features  of a case make it unusual, can help both reviewing

courts  and the  Commission  itself.   See  pp. 4-5,  18-19,
                                          

supra.  The district court, in Mr. Adamo's case, may wish to
     

conduct such an analysis in light of the special features of

the case to which the defendant has pointed.

          We therefore remand this  case for new  sentencing

proceedings.

          The sentences  in both  cases are vacated  and the
                                                            

cases are remanded to the district court for resentencing.
                                                          

          So ordered. 
                     

                            -41-
                             41
