
USCA1 Opinion

	




                              _________________________          No. 96-2071                              UNITED STATES OF AMERICA,                                     Appellant,                                         v.                                  GARY T. DETHLEFS,                                Defendant, Appellee.                              _________________________          No. 96-2072                              UNITED STATES OF AMERICA,                                     Appellant,                                         v.                                   DAVID C. WHITE,                                Defendant, Appellee.                              _________________________          No. 96-2073                              UNITED STATES OF AMERICA,                                     Appellant,                                         v.                              PETER CLAUDE PICCIANDRA,                                Defendant, Appellee.                              _________________________          No. 96-2074                              UNITED STATES OF AMERICA,                                     Appellant,                                         v.                                   RICHARD RECORD,                                Defendant, Appellee.                              _________________________          No. 96-2075                              UNITED STATES OF AMERICA,                                     Appellant,                                         v.                                  THOMAS K. STONE,                                Defendant, Appellee.                              _________________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                              _________________________                                       Before                                Selya, Circuit Judge,                             Cyr, Senior Circuit Judge,                             and Boudin, Circuit Judge.                              _________________________               Margaret D. McGaughey                                   , Assistant United States Attorney, with          whom Jay                    P.                        McCloskey, United States Attorney, and  Jonathan                                                                          R.          Toof, Assistant United States Attorney, were on brief, for the          United States.               John                      A.                          Ciraldo, with whom  Perkins,                                                        Thompson,                                                                  Hinckley                                                                            &          Keddy,                   P.A.,  Richard                                   M.                                      Egbert,  Robert                                                       N.                                                          Launie,  Joseph                                                                           J.          Balliro,                   Bruce B. Hochman                                  , and                                         Black, Lambert, Coffin & Rudman                                                                       were          on consolidated brief, for the appellees.                              _________________________                                   August 18, 1997                              _________________________                    SELYA,                           Circuit Judge                                       . In this case, the sentencing court          granted a full three-level acceptance of responsibility discount to          each of five defendants (Gary T. Dethlefs, David C. White, Peter C.          Picciandra, Richard Record, and Thomas K. Stone) on the ground that          their guilty pleas were opportune.  See USSG S3E1.1(b)(2) (1995).          Then the court essayed general, global downward departures under          USSG S5K2.0 (1995), reasoning that the defendants' pleas          substantially assisted the judicial system and the administration          of justice by obviating the need for trial of a complex,          potentially time-consuming case. Concluding, as we do, that the          record contains no sufficient justification for the downward          departures, we vacate the sentences and remand for resentencing.          I. THE PROCEEDINGS BELOW                    To the modest extent that the offense conduct pertains to          the issues on appeal, we extract the facts from the undisputed          portions of the five presentence investigation reports, the plea          colloquies, and the transcripts of the sentencing hearings.   See          United                  States v. Talladino, 38 F.3d 1255, 1258 (1st Cir. 1994);          United States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991). We also          consider the transcript of the hearing on the motions for downward          departures (which the district court expressly incorporated into          the sentencing record).                    In September 1994, a federal grand jury in Maine returned          a superseding indictment which charged the five appellees and four          confederates with conspiring to possess and distribute marijuana          (count 1) and conspiring to commit tax fraud (count 3).   See 21                                          3          U.S.C. SS 841(a)(1), 841(b)(1)(A), 846 (1994); 18 U.S.C. S 371          (1994). Count 2 of the indictment sought the forfeiture of certain          property based on the owners' involvement in the marijuana          operation.  See 21 U.S.C. S 853 (1994); see also United States v.          White, 116 F.3d 948 (1st Cir. 1997) (discussing forfeiture aspect).          The court treated an epidemic of motions during the next several          months. Along the way, one defendant, Thomas Baker, entered into          a plea agreement and, for present purposes, dropped out of sight.                    Faced with the prospect of trying eight defendants on          drug and tax charges, the district court opted to bifurcate the          anticipated trial and to sever defendants.    See March 14, 1995          Order. The court proposed to start the process by trying five          defendants on the drug charges. A planned rehabilitation of the          Portland courthouse complicated the court's scheduling efforts.          After contemplating his options, Judge Carter moved the trial to          Bangor and decreed that Phase I would begin on September 6, 1995.                    The record reflects that the judge vigorously promoted          plea negotiations. At pretrial conferences, defense counsel          bemoaned the government's rigidity and suggested that the court                                             This was to be Phase I, encompassing Record, Dethlefs, Baker,          Irvin Morris and Stuart Smith. Phase II was to involve trying the          Whites (who are siblings), Picciandra, and Stone on the same          counts. The bifurcation order left the tax count for subsequent          resolution. Some two months later, the court entered a new order          vacating the severance of the defendants into two groups but          retaining the principle of bifurcation.  See May 12, 1995 Order;          see also United States v. Morris, 914 F. Supp. 637, 639 (D. Me.),          aff'd, 99 F.3d 476 (1st Cir. 1996). While the court referred to a          three-phased trial in subsequent discussions, the record leaves the          impression that only two phases   a drug trial and a tax trial             would have been necessary.                                          4          could restore the balance if it agreed to depart downward from the          defendants' normal sentencing ranges. The judge signalled some          degree of receptivity to this idea, stating at one pretrial          conference:                    If all of the defendants got together and                    pleaded straight up in this case and made                    strong arguments to me for downward departure                    in order to recognize the alleviation of an                    immense load upon the time, effort and                    resources of this Court, I would consider it                    very[,] very favorably.                    On August 22, 1995, the appellees changed their pleas          pursuant to agreements which stipulated drug quantities but which          contained no other commitments as to sentencing. In anticipation          of their disposition hearings, the appellees moved for downward          departures on the ground that their guilty pleas substantially          assisted the judiciary by conserving resources important to          judicial administration. The district court entertained oral          argument. During the hearing, the court expressed concern about          whether it had the authority to, or should, depart downward "for          conduct of these defendants consisting of their tender of guilty          pleas" which "results in a benefit to the Court in aiding in the          conservation of judicial resources without direct benefit to the          prosecution." Despite its avowed reservations, the court concluded          that "there was a substantial benefit that accrued to the Court          from the fact that it did not have to go to trial in this case";          that the proceedings would have been "very complex" and would have          generated a host of issues on appeal; that, due to bifurcation, the          trial proceedings would have taken four to six months of courtroom                                          5          time spanning a period of ten to twelve months, followed by a          significant post-trial motion practice; and that the situation          would have been exacerbated by the transfer of the case to Bangor          (which would have required Judge Carter to suspend operations in          Portland, transport his staff to Bangor, and disrupt the wonted          operations of the resident district judge).                    Pondering these factors, Judge Carter concluded that the          entry of pleas was a mitigating circumstance which, given the          significant conservation of judicial resources that resulted, was          not adequately considered under the applicable guideline          provisions. He therefore announced that he would grant downward          departures in favor of all five appellees.                    The court convened individualized disposition hearings.          We eschew the interstitial details of the various sentencing          computations, save only to note that each appellee received a          three-level reduction for acceptance of responsibility. Judge          Carter calculated the guideline sentencing range (GSR) to be 87-108          months for White, Record, and Stone,    see USSG Ch. 5, Pt. A          (Sentencing Table) (adjusted offense level 29; criminal history          category I), 108-135 months for Picciandra,    see id. (adjusted          offense level 31; criminal history category I), and 235-293 months                                             Rebecca White also pleaded guilty in the same time frame, but          her case took a different turn.  See United                                                       States v. White, ___          F.3d ___ (1st Cir. July 28, 1997) [No. 96-2215] (rejecting Rebecca          White's appeal). The two remaining defendants, Morris and Smith,          proceeded to trial on the drug charges and were acquitted. When          last we visited the matter, the government was preparing to try          them for tax fraud. See                                   United States                                                v.                                                    Morris, 99 F.3d 476, 478          (1st Cir. 1996).                                          6          for Dethlefs,                        see                            id. (adjusted offense level 37; criminal history          category II). The judge then essayed wholesale departures.   He          sentenced White, Record, and Stone to 60-month incarcerative terms          and Picciandra to a 72-month incarcerative term (attributing the          larger departure to the perceived need "to maintain parity in terms          of receipt of proper recognition of benefit received by the          Court"). As to Dethlefs, the judge imposed a 175-month          incarcerative term, deeming him "entitled to a very significant          downward departure for his role in bringing about the pleas of five          other defendants, and in bringing to the Court his own plea,          obviating the need for extensive trial proceedings." Displeased by          the court's rulings, the government appealed.          II. ACCEPTANCE OF RESPONSIBILITY                    These appeals present two distinct questions. We first          address the easier question: acceptance of responsibility.          Whether a defendant has accepted personal responsibility is a fact-          intensive determination. Absent an error of law, we will not          disturb the sentencing court's judgment in this area unless it is          clearly erroneous.  See Talladino, 38 F.3d at 1263; United States          v. Morillo, 8 F.3d 864, 871 (1st Cir. 1993).                    The applicable guideline provision is USSG S3E1.1 (1995),          reprinted in the appendix. It authorizes a basic two-level          reduction in a defendant's offense level if the court determines                                             In addition to prison sentences, the court also imposed terms          of supervised release on all the appellees; levied special          assessments but no fines; and entered forfeiture orders against          White, Record, and Dethlefs.                                          7          that he has accepted responsibility.     See  id. S3E1.1(a). A          recently added subsection permits an additional one-level reduction          for certain defendants, provided that the court makes particular          findings.  See id. S3E1.1(b). The district court gave all five          appellees the full three-level discount pursuant to section          3E1.1(b)(2).                    The government concedes the appellees' entitlement to the          basic two-level reduction and also concedes that they meet the          threshold eligibility criteria for the bonus one-level reduction.          But the government strenuously protests the appellees' entitlement          to that bonus. Section 3E1.1(b)(2) requires a finding that a          defendant "timely notif[ied] authorities," that is, the prosecution          and the court, "of his intention to enter a plea of guilty, thereby          permitting the government to avoid preparing for trial and          permitting the court to allocate its resources efficiently," and          the government says that pleas tendered more than a year after          indictment and only two weeks before trial cannot meet that          benchmark.                    To be sure, we have upheld the denial of a one-level          discount under section 3E1.1(b) in situations where defendants have          waited less time to plead,   see, e.g., United                                                           States v.  Nunez-          Rodriguez, 92 F.3d 14, 17 & n.2 (1st Cir. 1996);                                                          Morillo, 8 F.3d at          872, and we have suggested that defendants who put the prosecutors          through their paces by loosing a heavy barrage of pretrial motions          (as did the appellees) usually cannot expect to receive the bonus          discount, see United                                States v. Munoz, 83 F.3d 7, 9 n.1 (1st Cir.                                          8          1996) (per curiam) (dictum). But generalities are often unhelpful          in specific cases, and the trier's judgment on acceptance of          responsibility issues is entitled to great respect.     See USSG          S3E1.1, comment. (n.5); see also United States v. Royer, 895 F.2d          28, 29 (1st Cir. 1990).                    Here, the district judge made particularized findings and          articulated a plausible basis for his determination that the          appellees had satisfied the timeliness requirement:                    I think the timeliness of notification in                    these cases is one that is in some sense                    relative . . . . Here it is clear to the                    Court that the plea entered at a point in time                    [taking into account] the total future                    duration of this effort if the pleas were not                    entered, such that they did serve the purpose                    intended to be served by section 3E1.1(b)(2),                    of cutting off a significant portion of                    preparation for trial . . . and afford[ing]                    the Court an opportunity to employ its                    resources to good advantage and in an                    efficient manner. I think there was a                    timeliness in that respect in the full context                    and circumstances of the case . . . .                    Although the matter is arguable, we cannot say that this          finding is clearly erroneous. Timeliness is a concept, not a          constant, and it normally must be evaluated in context. This is          especially true in connection with section 3E1.1(b), since that          guideline defines timeliness in functional, rather than strictly          temporal, terms. See USSG S3E1.1, comment. (n.6) ("The timeliness          of the defendant's acceptance of responsibility . . . is context          specific."); see also United                                        States v.  Wetwattana, 94 F.3d 280,          285-86 (7th Cir. 1996). Thus, the timeliness requirement of          section 3E1.1(b)(2) cannot always be measured simply by counting                                          9          calendar pages.                    The trial court, which enjoys a superior coign of          vantage, found that the notification given, though late in absolute          terms, was still early enough in the game to be of substantial          benefit to both the prosecution and the court because it          forestalled the need to make final preparations for a full-scale          drug trial, and, perhaps more importantly, because it eliminated          the arduous task of preparing to try, and then actually trying, the          tax charge vis-a-vis the appellees. On this basis, the district          court's finding that the appellees timely notified the authorities          of their intent to enter guilty pleas is supportable.          III. THE DOWNWARD DEPARTURES                    The government assigns error to all five downward          departures. We review departures for abuse of discretion,                                                                    see                                                                        Koon          v. United                     States, 116 S. Ct. 2035, 2046-47 (1996), employing an          analysis which, like all Gaul, is divided into three parts. First,          we determine as a theoretical matter whether the stated ground for          departure is permissible under the guidelines. If the ground is          theoretically appropriate, we next examine whether it finds          adequate factual support in the record.                                                  See                                                      United States                                                                   v.                                                                       Diaz-          Villafane, 874 F.2d 43, 49 (1st Cir. 1989). If so, we must probe          the degree of the departure in order to verify its reasonableness.                                             While this prong of the test poses a question of law,    see          Koon, 116 S. Ct. at 2047, it nonetheless falls within the abuse of          discretion rubric. That "standard includes review to determine          that the discretion was not guided by erroneous legal conclusions."          Id. at 2048.                                         10          See United                      States v. Quinones, 26 F.3d 213, 219 (1st Cir. 1994).          In this instance, the government posits that the district court's          departure decisions fail each prong of this tripartite test.                            A.  The Ground for Departure.                    The lower court departed under USSG S5K2.0 (1995) (the          text of which is reprinted in the appendix). This proviso, echoing          18 U.S.C. S 3553(b) (1994), permits (but does not require) a          sentencing court to venture outside the GSR if it detects "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." Not any aggravating or          mitigating circumstance will do; the circumstance must "render the          case atypical and take it out of the `heartland' for which the          applicable guideline was designed."                                              United States                                                           v.                                                               Carrion-Cruz,          92 F.3d 5, 6 (1st Cir. 1996) (per curiam).                    Here, the court's stated basis for departing was          substantially the same in respect to all five appellees: the          significant conservation of judicial resources which the entry of          a guilty plea yielded. Consequently, we first must ask whether, in          theory, a guilty plea which conserves judicial resources and          thereby facilitates the administration of justice is a mitigating          feature on which a court may predicate a downward departure (which          we sometimes shall call a "facilitation" departure). Although this          issue has generated disagreement among the courts of appeals, it is          new to us.                                         11                    The touchstone for our analysis is   Koon. There, the          Justices made it clear that, in considering whether a valid basis          for departure exists, an inquiring court should take a series of          related steps. The initial step is to identify "[w]hat features of          th[e] case, potentially, take it outside the Guidelines'          `heartland,'" thus making it "special" or "unusual." Koon, 116 S.          Ct. at 2045 (quoting United                                       States v.  Rivera, 994 F.2d 942, 949          (1st Cir. 1993)). After the distinguishing feature has been          identified, the next step is to determine whether the Sentencing          Commission has prohibited departures based on that feature.   See          id. If so, the inquiry ends. But if the Commission has not          outlawed departures on that account, the court must ascertain          whether the Commission has considered the identified feature at          all, and if so, whether it has either encouraged or discouraged          departures premised thereon.  See id.                    Once this segment of the analysis is complete, the          contours of the sentencing court's authority to depart begin to          take shape. If the distinguishing feature is a factor which is not          mentioned in the sentencing guidelines, the court, mindful of the          "structure and theory" of the guidelines, is free to decide whether          that feature logically suffices to remove the case from the          heartland.  Id. If, however, the distinguishing feature is a          discouraged factor or an encouraged factor which already has been          taken into account in the framing of the applicable guideline, the          court may depart only if the feature is present to an exceptional          degree or the case is distinctive in some other way.  See id.                                         12                    In this case, the sentencing judge identified a feature          _ a timely guilty plea which conserved judicial resources and          thereby facilitated the administration of justice _ which he          thought differentiated the case from those within the heartland.          Because the government concedes that the Commission has not          expressly forbidden courts from considering this feature, the          pivotal issue becomes whether the Commission took the identified          feature into account in formulating the guidelines (and if so, to          what end). This issue implicates the reach of two guidelines, USSG          SS3E1.1 and 5K1.1, the full text of which we set out in the          appendix. We discuss them in reverse order.                    Section 5K1.1 depends on a defendant's "assistance to the          authorities," a phrase which, in context, means assistance to the          prosecution. The language of that section targets assistance in          reference to interests and duties unique to the prosecution.  See          USSG S5K1.1 (referring to "substantial assistance in the          investigation or prosecution of another person");                                                           see                                                               also USSG Ch.          1, Pt. A, intro. comment. 4(g). Indeed, a sentencing judge cannot          depart under section 5K1.1 unless the prosecution chooses to place          that guideline in play.  See Wade v. United States, 504 U.S. 181,          185 (1992);                      United States                                   v.                                       Mariano, 983 F.2d 1150, 1155 (1st Cir.          1993). We think it is extremely unlikely that the Commission, if          it had considered a defendant's assistance to the courts under          section 5K1.1, would have placed the availability of such a          departure in the prosecutor's sole discretion. It is, after all,          self-evident that what is beneficial for the administration of                                         13          justice and what is of assistance to the prosecution are not          necessarily congruent, and the judge, not the prosecutor, is in the          best position to assess a defendant's assistance to                                                               the                                                                    judicial          system. It is equally self-evident that, even if assistance to the          prosecution accrues benefit to the court, or vice versa, the extent          of the conferred benefit can vary appreciably between the two          institutions.                    USSG S3E1.1(b) is closer to the mark. It rewards the          efficient allocation of judicial resources which is a normal          concomitant of a guilty plea. Still, consideration under that          guideline is tied exclusively to timeliness.    See id. comment.          (n.6). We easily can envision circumstances in which a guilty plea          materially assists a court (even though the assistance may not be          temporally focused) and confers benefits beyond scheduling          efficiency. Then, too, assistance to the court may result from          efforts which include, but which go well beyond, the timely entry          of a plea.                    Courts are divided as to whether these guidelines leave          any room for facilitation departures. The court below saw no          barrier. It relied mainly on United States                                                    v.                                                        Garcia, 926 F.2d 125          (2d Cir. 1991). There, three defendants initially pleaded not          guilty to drug-trafficking charges. Two months later, one of them,          Garcia, agreed to furnish information and testify for the                                             But cf. Charles Erwin Wilson, To the Senate Armed Forces          Committee (1952) (suggesting that "[w]hat is good for the country          is good for General Motors, and what's good for General Motors is          good for the country").                                         14          prosecution. At that juncture, he pleaded guilty to the conspiracy          count in the indictment. Shortly thereafter, his codefendants          changed their pleas. See                                    id. at 126. The sentencing court granted          Garcia a two-level reduction for acceptance of responsibility _ the          added level for timely notification of a guilty plea was not          available, as section 3E1.1(b) had not yet been adopted _ and then          departed downward on the ground that Garcia's actions had          facilitated the administration of justice.  See id. at 126-27.                    The Second Circuit upheld the sentence. It reasoned that          the guidelines did not adequately consider the mitigating          circumstances present in Garcia's case: USSG S5K1.1 focuses on          assistance to the government, not the judicial system, and          acceptance of responsibility as that term is used in USSG S3E1.1          differs qualitatively from activities facilitating the          administration of justice.   See id. at 127-28. The court then          upheld the departure on the basis that:                    [T]he additional assistance rendered the                    [district] court in the disposition of the                    charges against the other defendants justified                    the departure from the Sentencing Guidelines.                    As [the district judge] found, Garcia's                    conduct "broke the log jam" in a multi-                    defendant case. His relatively early guilty                    plea and willingness to testify against co-                    defendants induced [them] to enter guilty                    pleas. This conserved judicial resources by                    facilitating the disposition of the case                    without a trial.          Id. at 128.                    Garcia is to some extent a waif in the wilderness. Other          appellate courts, fortified in their resolve by the enactment of          USSG S3E1.1(b), see USSG App. C, amend. 459 (effective Nov. 1,                                         15          1992), have declined to follow                                        Garcia, concluding that, because the          sentencing guidelines adequately consider a defendant's assistance          to the judicial system under sections 3E1.1 and 5K1.1, facilitation          is not a permissible basis for a downward departure.  See,  e.g.,          United                   States v.  Dorsey, 61 F.3d 260, 262-63 (4th Cir. 1995)          (upholding a district court's refusal to depart downward for          professed assistance to the judicial system),                                                        cert.                                                              denied, 116 S.          Ct. 732 (1996); United                                  States v. Haversat, 22 F.3d 790, 794-95 &          n.5 (8th Cir. 1994) (reversing the sentencing court and holding          that neither the defendant's early plea nor his help in settling a          related civil suit warranted a downward departure under USSG          S5K2.0);                   United States                                v.                                    Shrewsberry, 980 F.2d 1296, 1297-98 (9th          Cir. 1992) (per curiam) (rejecting the defendant's plaint that she          should receive a downward departure for her aid in cracking a          case). Indeed, the Fourth Circuit went so far as to say that "[w]e          can envision no circumstance in which `assistance to the judicial          system' would not also be of assistance to the Government."          Dorsey, 61 F.3d at 262.                    The problem with all these cases,  Garcia included, is          that they were decided without the benefit of Koon. We read  Koon          to mean that courts, as a general rule, should not categorically          reject any factors (save only forbidden factors and factors which          lack relevance) as possible bases for departures.                                                            See                                                                Koon, 116 S.          Ct. at 2051 (warning that too ready resort to categorical          interpretations "would nullify the Commission's treatment of          particular departure factors and its determination that, with few                                         16          exceptions, departure factors should not be ruled out on a          categorical basis"); see also USSG Ch. 1, Pt. A, intro. comment.          4(b) (explaining that, apart from forbidden factors, the Sentencing          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"). Post Koon,          it would be folly to conclude that a timely guilty plea which          conserves judicial resources and thereby facilitates the          administration of justice must not be considered under any          circumstances in the departure calculus.                    On this basis, then, we hold that a categorical bar (such          as the government urges here) would contradict Koon and undermine          the theoretical foundations on which the sentencing guidelines          rest.  See United                             States v.  Olbres, 99 F.3d 28, 34-35 (1st Cir.          1996). Viewed at an appropriate level of generality,                                                               cf.                                                                   Koon, 116          S. Ct. at 2047, the mere existence of sections 5K1.1 and 3E1.1(b)          does not foreclose the theoretical possibility of predicating a          downward departure on such conduct. Cf.,                                                    e.g.,                                                          Olbres, 99 F.3d at          36 (reaching a substantially similar conclusion as to business          failure and attendant loss of jobs by innocent employees stemming          from a defendant's proposed incarceration);                                                     Rivera, 994 F.2d at 953          (reaching a substantially similar conclusion as to a defendant's          family circumstances); United                                         States v. Sklar, 920 F.2d 107, 116          (1st Cir. 1990) (reaching a substantially similar conclusion as to          a defendant's rehabilitation).                             B.  The Factual Predicate.                                         17                    To this point, we have established that, consistent with          the method of the sentencing guidelines as elucidated in Koon, a          defendant's timeous agreement to enter a plea and his actions          ancillary thereto may have ameliorative consequences so far beyond          ordinary expectations as to warrant a downward departure for          conserving judicial resources and thereby facilitating the          administration of justice. We next inquire whether the court below          had a sufficient factual predicate for its determination that the          departure-justifying feature exists in this situation to a degree          which suffices to distinguish the case from the mine-run.     See          Koon, 116 S. Ct. at 2045.                    Departures which depend on the presence of a          distinguishing characteristic to an exceptional degree are          sometimes called quantitative departures (as opposed to qualitative          departures, which depend upon the presence, simpliciter, of a          distinguishing characteristic).  See Bruce M. Selya & Matthew R.          Kipp,                An Examination of Emerging Departure Jurisprudence Under the          Federal                   Sentencing                               Guidelines, 67 Notre Dame L. Rev. 1, 22-24          (1991). Although descriptions of the phenomenon vary, their          essence remains the same: when a sentencing court mulls a ground          already considered by the Commission, there must be something very          special about how that ground manifests itself in the particular          case if it is to bear the weight of a departure. See                                                                Koon, 116 S.          Ct. at 2045; Rivera, 994 F.2d at 949.                    Judge Carter understood the nature of this inquiry. He          reasoned that the appellees' guilty pleas negated a potentially                                         18          cumbersome trial and thus accrued a substantial benefit to the          court. He premised this conclusion primarily on four subsidiary          determinations: (1) the appellees' courage in changing their pleas          without first having secured any commitments as to sentencing, (2)          the length of the anticipated trial, (3) the case's complexity, and          (4) the need to relocate the proceedings to Bangor. In the judge's          view, these circumstances made the case sufficiently atypical to          warrant departures across the board.                    In our estimation, the collateral circumstances relied on          by the sentencing court, whether viewed singly or in combination,          do not justify the wholesale departures that ensued.                    We start with the most obvious point. To the extent that          the district court based its departure decision on the fact that          the appellees, though facing potentially severe sentences, entered          pleas without sentencing agreements,  it erred. Notwithstanding          that most categorical interpretations are disfavored under the                                                                        Koon          Court's regime, some boundaries are essential if the guidelines are          not to be emptied of all meaning. Considering a straight plea as          a factor supporting departure impinges upon one of these          boundaries. Permitting courts to pass freely across this line          would intrude upon the Commission's prerogatives and undercut the          sentencing guidelines. After all, the Commission specifically          recognized the high percentage of guilty pleas in federal criminal                                             The court colorfully described this scenario as one in which          the appellees had agreed "to plead with their hearts in their          throats . . . knowing that the sky is the limit and the judge          determines the height."                                         19          cases,                 see USSG Ch. 1, Pt. A, intro. comment. 4(c) (observing that          "[n]early ninety percent of all federal criminal cases involve          guilty pleas"), and pleading straight up is commonplace.                    No deviation from this principle is warranted here. In          point of fact, these appellees did not tender bare pleas. They          received a significant concession in exchange for eschewing trial:          the government stipulated to drug quantities (a critical integer in          the formula for constructing a defendant's GSR). Even more          importantly, the district court indicated in advance that the          appellees could anticipate receiving solicitous treatment in          sentencing if they changed their pleas.                    The remainder of the lower court's analysis is also          flawed. The court placed great emphasis on the fact that trial          would have taken four to six months, spread over a period spanning          ten months to a year. In and of itself, this estimate is puzzling.          The court had abandoned the idea of splitting the defendants into          groups for purposes of trial, and, in its procedural order setting          the conditions for the upcoming trial, entered on May 12, 1995, the          court had allotted 12 days for trial on the drug-related counts.          By coincidence, the drug-count trial of the two defendants who did          not plead took exactly 12 days.  See United States v. Morris, 914                                             This appeal does not raise the question of whether the          district court's actions impinged on Fed. R. Crim. P. 11(e)(1)          (ordaining that the sentencing court "shall not participate" in          plea discussions). Consequently, we express no opinion either on          that question or on the somewhat related question whether, with or          without regard to Rule 11(e)(1), the appellants might have a basis          for seeking to withdraw their guilty pleas.                                         20          F. Supp. 637, 639 (D. Me.) (recounting travel of the case),                                                                      aff'd,          99 F.3d 476 (1st Cir. 1996). It is hard to believe that a separate          tax-fraud trial, if one proved necessary, would have consumed more          than this amount of time.                    Judicial time is a valuable commodity, and to save a          half-year or more of trial time, along with jury costs and other          associated expenses, might be a significant savings. But multiple-          defendant/multiple-count criminal cases of the duration involved          here (five to six weeks seems a generous estimate) are not          uncommon. Even in the case of a trial projected to take much          longer, we think it would require a very detailed and specific          showing to give full weight to such a projection _ especially in          view of the perverse incentive created by encouraging defendants to          threaten to prolong proceedings as a wedge for obtaining downward          departures.                    In the same vein, it will be exceedingly rare that the          complicated nature of an anticipated trial will warrant a downward          departure. While we can conjure up some byzantine case in which          complexity might be a proper factor in assessing whether the          defendant's facilitative conduct benefitted the judiciary to a          degree not contemplated by the applicable guideline range,    cf.          Selya & Kipp,    supra, at 31-37 (canvassing cases examining          collateral circumstances to gauge a factor's quantitative weight),          there is nothing so unusual about the complexities of a garden                                         21          variety drug-and-tax case that warrants departing.                    The need to manage large, multi-defendant, multi-issue          cases arises in federal district courts with the approximate          frequency of acne in adolescence. This case does not appear to          present problems so out of the ordinary as to pluck it from the          mainstream. The case, in its most cumbersome form, involved nine          defendants and three counts. Trying such a case is no small chore,          but, given the evolution of federal criminal cases in the modern          era, it is not an atypical configuration.                                                    See,                                                         e.g.,                                                               United States          v. Gallegos, 108 F.3d 1272, 1275 (10th Cir. 1997) (22 defendants,          23-count indictment); United States v. McKinney, 98 F.3d 974, 976          (7th Cir. 1996) (10 defendants, 12-count indictment),                                                               cert.                                                                     denied,          117 S. Ct. 1119 (1997); United                                          States v. Anderson, 89 F.3d 1306,          1308 (6th Cir. 1996) (29 defendants, 56-count indictment),  cert.          denied, 117 S. Ct. 786 (1997).                    Before leaving the imbricated topics of duration and          complexity, we offer two additional insights. First, we flatly          reject the notion that the prospect of burdensome post-trial          motions or difficult appellate issues, no matter how tricky or          time-consuming, can justify a downward departure. Second, we think          it is important to note that the district court took what amounted                                             Withal, we reject the government's claim that the prospective          length and complexity of the proceedings should be disregarded          because these attributes were aggravated by the court's bifurcation          order. Such trial management decisions are peculiarly within a          nisi prius court's discretion,    see,  e.g.,  United                                                                   States v.          Saccoccia, 58 F.3d 754, 770 (1st Cir. 1995), cert. denied, 116 S.          Ct. 1322 (1996); United                                   States v.  Taylor, 54 F.3d 967, 974 (1st          Cir. 1995), and that discretion was not abused here.                                         22          to an abstract view of the gross benefit that would accrue as a          result of the guilty pleas. Since not all the defendants pleaded,          the court still had to try the drug case and the tax case, albeit          with fewer parties, and to resolve much the same tangle of legal          issues. Consequently, the net savings to the justice system were          considerably more modest than the court projected.                    The final idiosyncracy identified by the court below _          the shortage of suitable courtroom space _ is a somewhat different          matter. Although we can find no precedent on the point, we assume          arguendo that the hardship of proceeding to trial during a major          courthouse rehabilitation project which puts adequate courtrooms in          short supply might be a relevant collateral circumstance.          Nevertheless, the record suffers from a dearth of information. For          example, there are insufficient facts concerning both the lack of          alternative facilities in Portland and the availability of          courtrooms in Bangor. While we might perhaps take judicial notice          of the existence of other courthouses, the record furnishes no          basis for us to determine whether those alternatives really were          inadequate.  This scarcity of record support weakens the influence                                             As we read the record, the lower court did not place much          weight on this factor. It found a substantial benefit to the          judicial system apart from the issue of limited trial space and          stated only that the removal to Bangor compounded its          considerations.                To be sure, the court stated that the only Portland location          at which it could try criminal cases was in the Cumberland County          Courthouse and that "[t]he courthouse facility there available was          in the new, modern wing where the courtrooms are relatively small,          and none of those courtrooms that were available to this court as          a result of that agreement were adequate to try 8 defendants with                                         23          of the courthouse renovation on the departure determination. In          all events, what we know about the courtroom problem in this case          indicates fairly conclusively that this distinguishing feature does          not warrant departure.                    It thus appears that the district court's reasons, taken          one by one, do not justify the dispensing of wholesale departures.          And while factors insufficient in themselves sometimes may suffice,          in combination, to wrest a case from the heartland and thus clear          the way for a departure, see, e.g., United                                                      States v. Bowser, 941          F.2d 1019, 1024-25 (10th Cir. 1991), this is not such an instance.          The court's articulated reasons, even when taken in cumulation,          lack the force which is necessary to transport the case          sufficiently beyond the realm of the ordinary.                    To summarize, we hold that in an appropriate case a          defendant's timely entry of a guilty plea might facilitate the          administration of justice in such an unusual way, or to so          inordinate a degree, that it substantially exceeds the reasonable          expectations the sentencing commissioners likely harbored when          formulating the guidelines.   Garcia is such a case (or so the          Second Circuit thought). In our judgment, however, merited          downward departures of this stripe are bound to be rare. That is          so because some facilitation flows from virtually every timely                                        upwards of twenty lawyers participating in trial." But the court          did not explain why the bankruptcy court facilities (which were          used during the renovation to conduct civil jury trials) were not          utilized, or why the original severance order could not have been          reinstated (thus paring the size of the queue), or whether the          availability of other state facilities outside of Portland but          closer than Bangor was explored.                                         24          guilty plea _ and the Sentencing Commission knew as much. Such a          readily foreseeable level of facilitation, while laudable, stops          well shy of what is necessary to take a case out of the heartland.          See,               e.g.,                     United States                                  v.                                      Gonzalez, 970 F.2d 1095, 1103 (2d Cir.          1992) (distinguishing  Garcia on the facts);   United                                                                   States v.          Lockyer, 966 F.2d 1390, 1392 (11th Cir. 1992) (per curiam)          (similar);                     United States                                  v.                                      Armstrong, 842 F. Supp. 92, 96 (S.D.N.Y          1994); United States v. Collazo, 798 F. Supp. 513, 518 (N.D. Ind.          1992). It is only the occasional instance, where circumstances          permit and the accused takes full advantage of them, that will          yield facilitation so dramatic as to cross the line. This is as it          should be: "If the guidelines are to provide a coherent system of          criminal sentencing, the trial court's right to depart, up or down,          must be restricted to those few instances where some  substantial          atypicality can be demonstrated."  United States v. Williams, 891          F.2d 962, 967 (1st Cir. 1989) (emphasis supplied).                    On the record as it now stands, this case falls within          the general rule, not within the long-odds exception to it. Multi-          defendant criminal cases are mothers' milk in the federal courts.          So, too, are guilty pleas. Thus, multiple defendants participating          in the entry of guilty pleas, without quite a bit more, cannot          constitute the meaningful atypicality that is required to warrant          a departure. Here, there is not enough "more." Hence, the          departures were improvidently granted.          IV. CONCLUSION                    We need go no further. The award of the third-level                                         25          acceptance of responsibility adjustment was not clearly erroneous.          As for the downward departures, we hold that, in theory, the court          had authority to depart for conduct (i.e., the timely guilty pleas)          which conserved judicial resources and thereby facilitated the          administration of justice. Here, however, the case for departure,          overall, falls so far short of   Garcia that the court's global          departures cannot survive.  We therefore vacate the appellees'          sentences and remand for further proceedings consistent with this          opinion.          It is so ordered.                                              In this case, the record strongly suggests that not all the          appellees contributed in the same degree to bringing about the          global pleas. Moreover, in fixing the extent of the individual          departures, the judge commented on the especially significant          contributions that one or two defendants had made in breaking the          log jam. The court remains free, on remand, to pursue the question          of whether this is a distinguishing feature warranting a downward          departure in a particular instance.  See Garcia, 926 F.2d at 128.                                         26                                      APPENDIX          S3E1.1.  Acceptance of Responsibility                    (a) If the defendant clearly demonstrates                    acceptance of responsibility for his offense,                    decrease the offense level by 2 levels.                    (b) If the defendant qualifies for a decrease                    under subsection (a), the offense level                    determined prior to the operation of                    subsection (a) is level                                            16 or greater, and the                    defendant has assisted authorities in the                    investigation or prosecution of his own                    misconduct by taking one or more of the                    following steps:                         (1) timely providing complete information to                         the government concerning his own involvement                         in the offense; or                         (2) timely notifying authorities of his                         intention to enter a plea of guilty, thereby                         permitting the government to avoid preparing                         for trial and permitting the court to allocate                         its resources efficiently,                         decrease the offense level by 1 additional level.          USSG S3E1.1 (1995).          S5K1.1. Substantial Assistance to Authorities                                                        (Policy Statement)          Upon motion of the government stating that the defendant has          provided substantial assistance in the investigation or prosecution          of another person who has committed an offense, the court may          depart from the guidelines.                    (a) The appropriate reduction shall be determined by the                    court for reasons stated that may include, but are not                    limited to, consideration of the following:                         (1) the court's evaluation of the                         significance and usefulness of the                         defendant's assistance, taking into                         consideration the government's evaluation                         of the assistance rendered;                         (2) the truthfulness, completeness, and                         reliability of any information or testimony                                         27                         provided by the defendant;                         (3) the nature and extent of the                         defendant's assistance;                         (4) any injury suffered, or any danger or                         risk of injury to the defendant or his                         family resulting from his assistance;                         (5) the timeliness of the defendant's                         assistance.          USSG S5K1.1 (1995).          S5K2.0.  Grounds for Departure (Policy Statement)                    Under 18 U.S.C. S 3553(b) the sentencing court may impose                    a sentence outside the range established by the                    applicable guideline, if 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." Circumstances that may warrant                    departure from the guidelines pursuant to this provision                    cannot, by their very nature, be comprehensively listed                    and analyzed in advance. The controlling decision as to                    whether and to what extent departure is warranted can                    only be made by the courts. Nonetheless, this subpart                    seeks to aid the court by identifying some of the factors                    that the Commission has not been able to take into                    account fully in formulating the guidelines. Any case                    may involve factors in addition to those identified that                    have not been given adequate consideration by the                    Commission. Presence of any such factor may warrant                    departure from the guidelines, under some circumstances,                    in the discretion of the sentencing court. Similarly,                    the court may depart from the guidelines, even though the                    reason for departure is taken into consideration in the                    guidelines (                               e.g., as a specific offense characteristic or                    other adjustment), if the court determines that, in light                    of unusual circumstances, the guideline level attached to                    that factor is inadequate.                    Where, for example, the applicable offense guideline and                    adjustments do take into consideration a factor listed in                    this subpart, departure from the applicable guideline                    range is warranted only if the factor is present to a                    degree substantially in excess of that which ordinarily                    is involved in the offense. Thus, disruption of a                    governmental function, S5K2.7, would have to be quite                                         28                    serious to warrant departure from the guidelines when the                    applicable offense guideline is bribery or obstruction of                    justice. When the theft offense guideline is applicable,                    however, and the theft caused disruption of a                    governmental function, departure from the applicable                    guideline range more readily would be appropriate.                    Similarly, physical injury would not warrant departure                    from the guidelines when the robbery offense guideline is                    applicable because the robbery guideline includes a                    specific adjustment based on the extent of any injury.                    However, because the robbery guideline does not deal with                    injury to more than one victim, departure would be                    warranted if several persons were injured.                    Also, a factor may be listed as a specific offense                    characteristic under one guideline but not under all                    guidelines. Simply because it was not listed does not                    mean that there may not be circumstances when that factor                    would be relevant to sentencing. For example, the use of                    a weapon has been listed as a specific offense                    characteristic under many guidelines, but not under                    immigration violations. Therefore, if a weapon is a                    relevant factor to sentencing for an immigration                    violation, the court may depart for this reason.                    An offender characteristic or other circumstance that is                    not ordinarily relevant in determining whether a sentence                    should be outside the applicable guideline range may be                    relevant to this determination if such characteristic or                    circumstance is present to an unusual degree and                    distinguishes the case from the "heartland" cases covered                    by the guidelines in a way that is important to the                    statutory purposes of sentencing.          USSG S5K2.0 (1995).                                         29
