February 2, 1993
                  UNITED STATES COURT OF APPEALS
                      For The First Circuit

                                             

No. 92-1491

                    UNITED STATES OF AMERICA,
                            Appellee,

                                v.

                      ABEL A. MARIANO, JR.,
                      Defendant, Appellant.

                                             

No. 92-1630

                    UNITED STATES OF AMERICA,
                            Appellee,

                                v.

                        BARRY BUTTERWORTH,
                      Defendant, Appellant.
                                             

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

      [Hon. Raymond J. Pettine, Senior U.S. District Judge]
                                                          
                                             

                              Before

                      Selya, Circuit Judge,
                                          
                  Bownes, Senior Circuit Judge,
                                              
                    and Stahl, Circuit Judge.
                                            
                                             

     Richard  J. Shea, with whom Edward  C. Roy was on brief, for
                                               
appellant Abel A. Mariano, Jr.
     Richard A. Gonnella for appellant Barry Butterworth.
                        
     Edwin J.  Gale, Assistant United States  Attorney, with whom
                   
Lincoln  C.  Almond,  United  States Attorney,  and  Margaret  E.
                                                                 
Curran,  Assistant United  States  Attorney, were  on brief,  for
      
appellee.
                                             

                         February 2, 1993
                                             

          SELYA,  Circuit  Judge.    These  consolidated  appeals
          SELYA,  Circuit  Judge.
                                

challenge  determinations made  by the  district court  under the

federal sentencing  guidelines.  Concluding,  as we do,  that the

court misconstrued  its authority to depart  from a predetermined

sentencing  range in  consequence  of a  defendant's  substantial

assistance,  U.S.S.G.      5K1.1  (Nov.  1991),   we  remand  for

resentencing.

I.  BACKGROUND

          The instant appeals find  their genesis in the polluted

political purlieus of Pawtucket, Rhode Island.  See, e.g., United
                                                                 

States  v.  Sarault,  975  F.2d 17  (1st  Cir.  1992)  (affirming
                   

racketeering sentence  with respect  to Pawtucket's mayor).   The

appellants, Abel  A. Mariano, Jr. and  Barry Butterworth, secured

lucrative municipal  contracts and,  in the course  of performing

the jobs,  lubricated the  wheels of  city  government by  paying

under-the-table cash stipends  to insistent municipal  officials.

Mariano  made periodic  payments  (perhaps totalling  as much  as

$50,000) to forestall the  reassignment of sewer-line repair work

to  another contractor.  Butterworth decided to play ball as part

of  his effort to retain generous contracts for the renovation of

McCoy Stadium.   In all, Butterworth made a series of payments to

the ringleaders in an aggregate amount exceeding $100,000.

          Appellants' payments took place over a substantial span

of time.  It  was only after the  authorities started to  uncover

pervasive   corruption   in  the   Sarault   administration  that

appellants  began cooperating  with the  U.S.  Attorney.   In the

                                2

aftermath of this cooperative effort, the government, rather than

seeking indictments,  prepared informations charging the  two men

with violating  18 U.S.C.    666(a)(2) (1988).1   The  defendants

pled  guilty pursuant  to plea  agreements providing  in relevant

part  that the government would pursue a reduction in the offense

level  based on  the  defendants' assistance  to law  enforcement

agencies.  

          Mariano  and  Butterworth  were  charged  and sentenced

separately.   In  each  instance, the  prosecution described  the

defendant's  cooperation  and  argued  for a  six-level  downward

departure  pursuant to  U.S.S.G.    5K1.1.    The district  court

refused to depart and sentenced each defendant to  a twenty-seven

month  prison term   an incarcerative sentence  at the top end of

the guideline sentencing range (GSR).   The government moved  for

reconsideration.   In explaining  his refusal to  reconsider, the

district judge, referring  to and quoting  from United States  v.
                                                             

Aguilar-Pena,  887 F.2d 347 (1st  Cir. 1989), stated  that he did
            

not have discretion to depart.

          In these appeals,2 appellants  claim in unison that the

                    

     1The  statute of conviction criminalizes "corruptly giv[ing]
. . .  anything of value to any person,  with intent to influence
or reward an agent of . . . local . . . government, or any agency
thereof, in connection with  any business, transaction, or series
of transactions . . . involving  [$5000 or more]," so long as the
governmental  unit  in  question  receives   substantial  federal
subsidies.  18 U.S.C.   666(a)(2).

     2Although the plea agreements  contain provisions by  virtue
of which the defendants ostensibly waived their rights of appeal,
the  government has conceded that, in  the circumstances of these
cases,  the waiver  provisions are  impuissant.   We  accept this
concession  uncritically.  Hence, we  take no view  of either the

                                3

district court erred in establishing the base offense level (and,

hence,  in fixing  the GSR),  that the  court misapprehended  the

legal standard governing departures under section 5K1.1, and that

their sentences  were "plainly unreasonable" in  derogation of 18

U.S.C.   3742(a)(4) (1988).   In addition, Mariano contends  that

the   district   court    labored   under   fundamental   factual

misconceptions and  violated the  Due Process Clause  by focusing

exclusively  on  deterrence  concerns  to  the  detriment  of  an

individualized sentence.  Not to be outdone, Butterworth contends

that  the government  breached the plea  agreement by  failing to

argue enthusiastically enough in support of a downward departure.

          We concentrate initially  on appellants' flagship claim

   the   assertion  that  the  court   below  misapprehended  the

controlling legal  standard, thus mismeasuring the  limits of the

discretion entrusted to  it under  section 5K1.1.   We take  this

tack because, if this  claim pans out, most of  appellants' other

asseverations need not be considered.

II.  THE COURT'S AUTHORITY TO DEPART

          We  begin our  discussion of  the court's  authority to

depart  by pondering  a jurisdictional  quandary.   That quandary

resolved, we then address the merits of appellants' claim.

                   A.  Appellate Jurisdiction.
                                             

          Ordinarily,  an appeal  will  not lie  from a  district

court's refusal  to depart from a  properly calculated sentencing

                    

enforceability  vel non of  such waivers or  the safeguards which
                       
must be employed in respect thereto.

                                4

range.  See United  States v. Tardiff,  969 F.2d 1283, 1290  (1st
                                     

Cir. 1992); United States  v. Romolo, 937 F.2d  20, 22 (1st  Cir.
                                    

1991) (collecting cases).   However,  appellate jurisdiction  may

attach  when it appears that  the failure to  depart stemmed from

the  sentencing court's  mistaken impression  that it  lacked the

legal  authority  to  depart  or,  relatedly,  from  the  court's

misapprehension  of the  rules governing  departure.   See United
                                                                 

States v. Amparo, 961 F.2d 288, 292 (1st Cir.), cert. denied, 113
                                                            

S. Ct. 224  (1992); United States  v. Lauzon, 938  F.2d 326,  330
                                            

(1st Cir.), cert. denied, 112 S. Ct. 450 (1991); Romolo, 937 F.2d
                                                       

at  22.   Although this  paradigm is  dictated by  the Sentencing

Reform Act, see Romolo,  937 F.2d at 23 (discussing  operation of
                      

18  U.S.C.     3742(a)), it  also  works  well  from a  practical

standpoint:   in respect  to declinations to  depart, the limited

appellate review that is available serves to correct errors which

are   essentially  "legal"   in  nature,   but  does   not  brook

interference with a  sentencing court's  exercise of  factfinding

functions or discretion.  See  Amparo, 961 F.2d at 292;  see also
                                                                 

Romolo, 937 F.2d at 23.
      

          These  appeals fit  snugly within  the contours  of the

exception  permitting   appellate  review.     The  gravamen   of

appellants'  complaint   is  their  colorable  claim3   that  the

                    

     3In what it terms "the rarest of all cases," the government,
which has  a duty to see  that justice is done,  Berger v. United
                                                                 
States,  295 U.S.  78,  88 (1935),  argues  that the  defendants'
      
assignment of legal error is  on the mark.  While such  unanimity
of  purpose might raise jurisdictional concerns  in a civil case,
see  Muskrat  v.   United  States,  219  U.S.  346,   361  (1911)
                                 
(explaining adversity requirement); see  also Moore v. Charlotte-
                                                                 

                                5

district court  confused the legal standard  governing departures

under  U.S.S.G.     5K1.1   with  the  legal  standard  governing

departures  under  a  markedly  different guideline,  U.S.S.G.   

5K2.0.   This claim  presents a  question  of law,  not of  fact,

comfortably  within our  assigned purview.   We  hold, therefore,

that we have jurisdiction over these appeals.

        B.  The Distinction Between Departure Modalities.
                                                        

          We turn next  to the merits of the claim.   Because the

assignment of error involves the parameters of a district judge's

departure authority,  we afford plenary review.   See Lauzon, 938
                                                            

F.2d at 330; cf. United States v. Diaz-Villafane, 874 F.2d 43, 49
                                                

(1st Cir.) (holding  that de  novo review is  warranted when  the
                                  

court  of appeals  is called  upon to  determine "whether  or not

circumstances are of a  kind or degree that may  appropriately be

relied  upon to  justify departure"  under section  5K2.0), cert.
                                                                 

denied, 493 U.S. 862 (1989).
      

          The district judge explicitly interpreted  our decision

in United States v.  Aguilar-Pena, 887 F.2d 347 (1st  Cir. 1989),
                                 

as  restricting his  ability to depart  downward in  these cases.

Aguilar-Pena,  however, involved  a district court's  decision to
            

                    

Mecklenburg Bd. of  Educ., 402  U.S. 47, 48  (1971) (per  curiam)
                         
(finding  no case  or  controversy where  "both litigants  desire
precisely the  same result"), criminal  cases are a  breed apart.
When  the government  confesses error  in a  criminal proceeding,
appellate   courts  routinely  continue  to  exercise  previously
acquired jurisdiction.  See, e.g., Mariscal v. United States, 449
                                                            
U.S.  405 (1981) (per curiam);  Young v. United  States, 315 U.S.
                                                       
257, 258-59 (1942); see also United States v. Udo, 963 F.2d 1318,
                                                 
1319 (9th Cir. 1992) (reviewing a failure to depart pursuant to  
5K1.1  in  circumstances analogous  to  those  presented in  this
case).

                                6

depart under section  5K2.0.4  See id. at  349-53.  Under section
                                      

5K2.0, a district court  is empowered to depart  from the GSR  if

there  "exists an  aggravating  or mitigating  circumstance of  a

kind,  or to a degree, not adequately taken into consideration by

the Sentencing Commission."  U.S.S.G.   5K2.0  (quoting 18 U.S.C.

   3553(b)).  Noting that "the birth of the Sentencing Commission

was  to  some extent  reflective of  Congress's ardent  desire to

dispense   with  inequalities   based  on   localized  sentencing

responses,"  Aguilar-Pena, 887  F.2d  at 352,  we  held that  the
                         

district  court's authority  to  depart under  section 5K2.0  was

restricted  to  those few  instances  where  there is  "something

'special' about  a given offender,  or the  accouterments of  the

crime committed,  which distinguishes the case  from the mine-run

for  that offense."   Id. at 350.   In  other words, Aguilar-Pena
                                                                 

reflected this court's staunch belief that section 5K2.0 operates

as  a safety  valve  to  be employed  at  the  discretion of  the

district judge on those infrequent occasions when some important,

atypical  factor,   not   duly  considered   by  the   Sentencing

Commission, removes  a particular case from "the  heartland for a

given offense."  Id. at 351.
                    

          U.S.S.G.     5K1.1  is  a different  provision  with  a

different  raison d'etre.    Congress  specifically directed  the
                        

Sentencing Commission to

                    

     4Aguilar-Pena flowed  naturally from,  and relied upon,  our
                  
opinion in United States v. Diaz-Villafane.   See, e.g., Aguilar-
                                                                 
Pena, 887 F.2d at 349-50 (citing and quoting  Diaz-Villafane, 874
                                                            
F.2d  at 49-52).   Like  Aguilar-Pena, Diaz-Villafane  involved a
                                                     
departure under U.S.S.G.   5K2.0.

                                7

          assure  that  the   guidelines  reflect   the
          general appropriateness of  imposing a  lower
          sentence than would otherwise  be imposed . .
          .   to  take   into  account   a  defendant's
          substantial  assistance in  the investigation
          or  prosecution  of  another  person  who has
          committed an offense.
28  U.S.C.    994(n) (1988).   Section  5K1.1 sprouted  from this

statutory seed.  It provides, inter alia, that:
                                        

          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.

U.S.S.G.    5K1.1.   This  guideline serves  a dual purpose.   In

addition to permitting ex post tailoring of defendants' sentences
                              

to reflect  meaningful assistance  rendered between the  dates of

apprehension and  sentencing, it  provides  defendants, ex  ante,
                                                                

with an incentive to cooperate in the  administration of justice.

See, e.g., United States v. Damer, 910 F.2d 1239, 1241 (5th Cir.)
                                 

(per curiam), cert. denied, 111 S. Ct. 535 (1990).
                          

          The  methodological contrast between  the two departure

modalities is glaring.  Because section 5K2.0 in a sense operates

to  promote  disparity,  the  Sentencing  Commission  strove   to

minimize the  number of times it would  be invoked.  But, because
        

section  5K1.1  operates  in  part  as  an  incentive,  promoting

cooperation  with  law   enforcement  agencies,  the   Sentencing

Commission strove to  maximize the  number of times  it would  be
                              

invoked.5      These  divergent   purposes,   coupled   with  the

                    

     5Available  statistics reflect  the Commission's  success in
achieving this differential.   Of 31,785 dispositions reported in
1991,  11.9  percent involved  substantial  assistance departures

                                8

significant  linguistic differences  between the  two guidelines,

clearly  indicate that  the legal  standard for  departures under

section  5K2.0  cannot  be  transplanted   into  the  substantial

assistance  sphere.  The district  court, therefore, erred in its

stated reliance on Aguilar-Pena.
                               

     C.  The Standard for Substantial Assistance Departures.
                                                           

          In  order to  determine whether  the court's  error was

harmless,  we must explore  the dimensions of  the legal standard

that the  district court should have  used.  We have  not yet had

occasion to discuss the way in which departure decisions ought to

be made under U.S.S.G.   5K1.1.  We do so today.

          1.       Discretion.      We    begin   with   bedrock.
          1.       Discretion.
                             

Notwithstanding  that a government motion is a  sine qua non to a
                                                            

departure for  a defendant's substantial assistance,  see Wade v.
                                                              

United States, 112 S. Ct. 1840, 1843 (1992), the decision whether
             

to depart after  the government has made such a  motion, like the

related decision  as to  the extent of  any resultant  departure,

falls squarely within the district  court's domain.  The district

court  is not  obligated  to  depart  downward simply  because  a

grateful  prosecutor  prefers a  lighter  sentence.   See  United
                                                                 

States v. Spiropoulos, 976  F.2d 155, 162 (3d Cir.  1992); United
                                                                 

States v. Ah-Kai, 951 F.2d 490, 494 (2d Cir. 1991); United States
                                                                 

v. Munoz, 946 F.2d  729, 730 (10th  Cir. 1991); United States  v.
                                                             

Carnes, 945 F.2d  1013, 1014  (8th Cir. 1991);  United States  v.
                                                             

                    

whereas only 7.5 percent  involved all other departures combined.
See 1991 United States Sentencing Commission Ann. Rep. at 133-35.
   

                                9

Richardson,  939 F.2d 135, 139  (4th Cir.), cert.  denied, 112 S.
                                                         

Ct. 599 (1991), 112  S. Ct. 942 (1992);  United States v.  Keene,
                                                                

933 F.2d  711,  715 (9th  Cir. 1991);  Damer, 910  F.2d at  1241;
                                            

United  States v. Pippin, 903  F.2d 1478, 1485  (11th Cir. 1990).
                        

Put   bluntly,  while   a  government   motion  is   a  necessary

precondition  to  a downward  departure  based  on a  defendant's

substantial assistance, the docketing  of such a motion  does not

bind a  sentencing court  to abdicate its  responsibility, stifle

its independent judgment, or comply blindly with the prosecutor's

wishes.

          The government,  seeking a  more prominent role  in the

decisionmaking process,  points out the  Commission's advice that

"[s]ubstantial   weight  should  be  given  to  the  government's

evaluation  of   the  extent   of  the  defendant's   assistance,

particularly  where the  extent and  value of the  assistance are

difficult to ascertain."  U.S.S.G.   5K1.1, comment. (n.3).  But,

this  advice, although sound, was  never intended to  rein in the

district court's  discretion concerning the need  for, and extent

of,  a  downward departure  once a  government  motion is  on the

table.  See  United States  v. Castellanos, 904  F.2d 1490,  1497
                                          

(11th  Cir. 1990).   Rather,  Application Note  3 sets  forth the

suggested  degree of  deference that  should be  afforded  to the

prosecution's assessment  of the facts surrounding  a defendant's

assistance and intimates  that, particularly in difficult  cases,

the sentencing court ought  not to "inquire too  intrusively into

the government's  file" on  this delicate subject.   Spiropoulos,
                                                                

                                10

976  F.2d at 163 n.5; see also  Keene, 933 F.2d at 714 (observing
                                     

that the "prosecutor is  in the best position to know whether the

defendant's cooperation has been helpful").  When all is said and

done,  it  remains  the  district  judge's  decision     not  the

prosecutor's   whether to depart, and if so, to what degree.

          2.   Relevant Factors.   Although the  district court's
          2.   Relevant Factors.
                               

discretion in  passing upon a section 5K1.1 motion is wide, it is

not unbridled.  The guideline itself provides that:

          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
          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.

U.S.S.G. 5K1.1.   While  the Commission's list  is representative

rather  than exclusive,  the  five enumerated  factors should  be

considered the mother lode  of substantial assistance  inquiries.

A district court,  faced with a section  5K1.1 motion, must at  a

bare  minimum indicate its cognizance  of these factors.   In the

typical  case the  court  would also  do  well to  make  specific

findings regarding each item.

          The open-ended  nature of  the statutory list  does not

                                11

mean that a district court may consider any datum it pleases when

passing upon a section 5K1.1 motion.  As a basis for departing, a

court may  consider mitigating factors  only to  the extent  that

they  can  fairly be  said to  touch  upon the  degree, efficacy,

timeliness,  and  circumstances  of  a  defendant's cooperation.6

See United States  v. Chestna,  962 F.2d 103,  106-07 (1st  Cir.)
                             

(per  curiam), cert. denied, 113 S. Ct. 334 (1992); United States
                                                                 

v. Thomas, 930 F.2d 526, 528-29  (7th Cir.), cert. denied, 112 S.
                                                         

Ct. 171 (1991).  After  all, the substantial assistance provision

is not to be used as a mechanism for short-circuiting other, more

restrictive provisions of the  sentencing guidelines.  See United
                                                                 

States v. Hall, 977 F.2d 861, 865 (4th Cir. 1992).7
              

          A  somewhat different  situation obtains in  respect to

the factors  that  a court  may  consider as  a means  to  remain

within,  or   incrementally  closer  to,  the  GSR.    Since  the

sentencing range itself  is an expression  of Congress's will,  a

district  court  retains  broad  discretion   to  exhume  factors

unrelated to substantial assistance before burying the GSR.  See,
                                                                

e.g.,  United States  v. Mittelstadt, 969  F.2d 335,  336-37 (7th
                                    

                    

     6The narrowing effect of  this circumscription should not be
exaggerated.     The  factors  that  legitimately   relate  to  a
defendant's cooperation may be  many and varied.  See  U.S.S.G.  
                                                     
5K1.1, comment. (backg'd) ("The  nature, extent, and significance
of assistance can involve  a broad spectrum of conduct  that must
be evaluated by the court on an individual basis.").

     7As  this   logic  makes  clear,  the   government  and  the
appellants are incorrect in suggesting here that a district court
is  obliged  to consider  factors  such  as proportionality  when
           
deciding whether,  or how much,  to depart  under section  5K1.1.
See United  States v. Kohl,  972 F.2d 294,  299 (9th Cir.  1992);
                          
Richardson, 939 F.2d at 139.
          

                                12

Cir.  1992) (ruling  that the  district court  did not  abuse its

discretion  in considering  defendant's chronic  alcoholism on  a

section 5K1.1 motion); Carnes, 945 F.2d at 1014 (holding that the
                             

benefit a defendant received  from the prosecution's decision not

to  press  an  additional  charge was  a  permissible  ground for

limiting  the extent of a downward  departure).  Even if the five

factors enumerated in section 5K1.1 weigh in a defendant's favor,

the district court may, on the basis of other considerations, not

constitutionally proscribed, cf., e.g., Wade, 112 S. Ct. at 1843-
                                            

44;  United States  v. Drown,  942 F.2d  55, 60 (1st  Cir. 1991),
                            

decide to forgo  or curtail a downward  departure for substantial

assistance.

          In   sum,   the   limitations   on   the   variety   of

considerations that a court may mull in withholding or curtailing

a substantial assistance departure are not nearly so stringent as

those which pertain when a court  in fact departs downward.  This

seeming  paradox is neither unusual nor unsettling; indeed, it is

this very  quality of unequal centrifugal  and centripetal forces

that  helps distinguish  discretionary departure  provisions like

section 5K1.1 from the  sentencing guidelines' array of mandatory

adjustment  provisions like  U.S.S.G.     3E1.1  (adjustment  for

acceptance  of  responsibility)  and  U.S.S.G.      3B1.1,  3B1.2

(adjustment for aggravating or mitigating role in the offense).

          3.   Weighing the Factors.  Once the government files a
          3.   Weighing the Factors.
                                   

section 5K1.1 motion, weighing  the relevant factors in  order to

decide  whether to depart (and  if so, by  how much) is something

                                13

best  done by the sentencing  court.  United  States v. Atkinson,
                                                                

    F.2d     ,     (7th Cir. 1992) [1992 U.S. App. LEXIS 30082 at

*22-25]; Thomas, 930 F.2d at  531.  In the section 5K1.1  milieu,
               

as elsewhere,  the court of  appeals will, to  the extent of  its

jurisdiction, review  discretionary decisions only  for abuse  of

discretion; and we will review the extent of a departure based on

an  acceptable set of factors only to ensure reasonableness.  See
                                                                 

Diaz-Villafane, 874 F.2d at 49.
              

                         D.  Summing Up.
                                       

          We rule today that the legal standard for departure  is

materially different under U.S.S.G.   5K1.1 than under U.S.S.G.  

5K2.0.   A district court confronted with a government motion for

departure  pursuant to  section 5K1.1  must consider  the factors

specifically  enumerated  in  that  guideline as  well  as  other

factors which in the  court's judgment bear on the  decision.  In

so  doing,  however, the  court  must  recognize that  mitigating

concerns  are  relevant   only  insofar  as  they  relate   to  a

defendant's substantial assistance.   In all events, the district

court retains wide discretion  concerning whether to depart under

section  5K1.1; and, if it decides that a departure is warranted,

it also possesses appreciable discretion in fixing the  extent of

the departure.

          In  these  cases,  the   district  court  premised  its

decision  not  to depart  on a  legal  standard designed  to hold

departures  to a minimum    a standard  that has  no relevance in

respect to substantial assistance departures.  And, although many

                                14

of the integers that enter into the section 5K2.0 calculus can be

considered  for  certain purposes  under  section  5K1.1, we  are

unable confidently to say  on this record that the  judge's error

was  harmless.    Thus, we  remand  to  the  district court  with

instructions  to vacate  appellants'  sentences and  conduct  new

sentencing hearings.  We see no need to require  that a different

judge preside over  the resumed proceedings.   Cf., e.g.,  United
                                                                 

States v. Diaz-Bastardo, 929 F.2d 798, 800-01 (1st Cir. 1991).
                       

III.  THE COURT'S CHOICE OF AN ANALOGOUS GUIDELINE

          Given  the fact  that new  sentencing hearings  will be

held,  we decline,  with  one exception,  to address  appellants'

other  challenges  to  the  proceedings below.8    The  exception

relates  to   appellants'  assertion  that  the  district  court,

confronted by  a lacuna  in the  guidelines,  failed properly  to

select  the  most analogous  guideline  as a  starting  point for

computing  the GSR.  We treat  with this assertion because we can

envision no circumstances in  which a choice of this  nature will

not face the district court on remand.

          We set the stage.  The Sentencing Commission has yet to

promulgate  an   offense  guideline   covering  the  offense   of

conviction  in these cases, i.e.,  the making of illicit payments
                                

to  a municipal official in  violation of 18  U.S.C.   666(a)(2).

In  such circumstances,  U.S.S.G.    2X5.1  directs the  district

                    

     8Because  we  do   not  reach  appellants'  "reasonableness"
argument, we  take no  view of  the  suitability vel  non of  the
                                                         
sentences originally imposed.

                                15

court to  "apply the most analogous offense  guideline" unless no

"sufficiently  analogous guideline"  can be  found.9   Appellants

urged that U.S.S.G.   2C1.2 (dealing in part with the giving of a

gratuity  to a  public official)  provided the  best basis  for a

comparison.   The  district court  rejected this  exhortation and

found U.S.S.G.    2C1.1 (dealing  with bribery of,  and extortion

by, public officials) to be the most analogous guideline.

          We  discern no  error  in this  determination.   Before

explaining  our   reasoning,  however,   we  first   address  the

appropriate standard of appellate review.

                     A.  Standard of Review.
                                           

          An appellate  tribunal must "give due  deference to the

district court's application of the guidelines to the facts."  18

U.S.C.   3742(e)  (1988).   We have interpreted  this statute  as

requiring,  in most instances, that the court of appeals review a

trial court's application of a sentencing  guideline to the facts

only for clear error.  See, e.g., United States v. Ruiz, 905 F.2d
                                                       

499, 507  (1st Cir. 1990); United States v. Wright, 873 F.2d 437,
                                                  

444  (1st Cir.  1989).    The  propriety  of  using  the  clearly

erroneous  standard   in   scrutinizing  a   sentencing   court's

                    

     9In  the court  below, appellants  argued that  a particular
offense guideline,  U.S.S.G.     2C1.2, was  a  better  fit  than
U.S.S.G.   2C1.1 (the offense guideline deemed most comparable by
the  district judge).   On appeal,  Butterworth attempts  for the
first  time   to  raise  the  different  issue   of  whether  any
                                                                 
sufficiently analogous guideline exists.  This issue has not been
properly preserved  for appellate review.   See United  States v.
                                                              
Slade,     F.2d    ,      (1st Cir. 1992) [No. 92-1176, slip  op.
     
at 6] (reiterating the established rule that points not argued in
the  district  court  cannot be  raised  for  the  first time  on
appeal).

                                16

application of law  to fact  will depend largely  on whether  the

question presented  is essentially factual or  essentially legal;

the  more fact-dominated the question, the more likely it is that

clear-error review  will be  appropriate.   See United States  v.
                                                             

Ortiz,  878 F.2d  125, 126-27  (3d Cir.  1989); United  States v.
                                                              

Daughtrey,  874 F.2d 213, 217-18 (4th Cir. 1989); see also Roland
                                                                 

M. v.  Concord School Comm., 910 F.2d 983, 990-91 (1st Cir. 1990)
                           

(discussing desirability of clear-error review in instances where

a district court must find the facts and then make  an evaluative

judgment, applying a defined legal standard to the facts),  cert.
                                                                 

denied, 111 S. Ct. 1122 (1991).
      

          In  these cases, a series of  factors suggests that the

contested  issue lies  closer to  the fact-intensive  end  of the

continuum:    there  is  no indication  that  the  district court

misunderstood the  choices presented under the  guidelines; there

is  no  articulation of  a dispute  concerning  the reach  of the

provisions  proffered  as  suitable  analogs;  and  there  is  no

necessity for us, in resolving  the controversy, to determine the

far  broader  (and  essentially  legal)  question  of  whether  a

particular offense guideline will always  be most analogous to 18
                                        

U.S.C.   666(a)(2).  Simply stated, the issue before the district

court  was whether  appellants' actions  in "corruptly  giv[ing]"

payoffs  to  municipal officials  "with  intent  to influence  or

reward"  those officials  in connection  with city  contracts, 18

U.S.C.     666(a)(2), were  more  akin to  providing  a gratuity,

U.S.S.G.    2C1.2,  than to  passing a  bribe, U.S.S.G.    2C1.1.

                                17

This issue is  essentially factual.   It required  the court,  in

effect,  to  find  the  facts   pertaining  to  the  offenses  of

conviction and make  evaluative judgments concerning those  facts

(including  a judgment  as to  whether appellants'  payments were

intended to  "influence," rather than  "reward," city officials).

Accordingly,   we  apply   the  clearly  erroneous   standard  of

review.10

                   B.  The Appropriate Analogy.
                                              

          The essential difference between a bribe and an illegal

gratuity is the intention of the bribe-giver to effect a quid pro
                                                                 

quo.  See United States  v. Muldoon, 931 F.2d 282, 287  (4th Cir.
                                   

1991).  Hence, a bribery guideline, section 2C1.1, applies when a

transfer  of money  has "a  corrupt purpose,  such as  inducing a

public official to  participate in  a fraud or  to influence  his

official actions."   U.S.S.G.    2C1.1, comment. (backg'd).   The

gratuity provision, on the other hand, does not include a corrupt

purpose as  an element of  the offense.   See  U.S.S.G.    2C1.2,
                                             

comment. (backg'd).

                    

     10In the event  no sufficiently analogous  guideline exists,
the  sentencing  court  must  resort to  the  general  principles
adumbrated  in 18 U.S.C.   3553(b) (1988) (providing that, in the
absence  of  an offense  guideline,  the  court  shall impose  an
"appropriate" sentence,  having due  regard for, inter  alia, the
                                                            
gravity  of the  offense;  the need  for punishment,  deterrence,
retraining, and the like; and  "the relationship of the  sentence
imposed to sentences prescribed  by [other] guidelines . .  . and
the applicable policy statements of  the Sentencing Commission").
Because that scenario  has no bearing here, see supra  note 9, we
                                                     
find inapposite the standard of review limned in United States v.
                                                              
Gabay,  923 F.2d 1536, 1545  (11th Cir. 1991)  (employing de novo
                                                                 
review where  defendant contended that  no sufficiently analogous
guideline existed).

                                18

          This distinction between the  two offense guidelines is

brought into bold relief by  the differences between the statutes

to  which the guidelines relate.   The bribery guideline applies,

for example, to the offense of "corruptly giv[ing] . . . anything

of value" to a federal official with the intent of "influenc[ing]

any  official act" or "inducing"  the official to  violate his or

her  lawful duty.   18  U.S.C.    201(b)(1)  (1988).   This seems

virtually  to mirror the statute of conviction here, which, among

other things, criminalizes "corruptly giv[ing]  . . . anything of

value  to any  person, with  intent to  influence" a  decision of

state or local  government.  18 U.S.C.    666(a)(2).  The  common

thread  that  runs through  both statutes  is  the intent  of the

payer, by the greasing  of palms, to affect the future actions of

a public official.  In contrast, the gratuity guideline refers to

crimes of a somewhat  different genre.  It applies,  for example,

to persons who  give things of value to federal  officers "for or

because of any official act performed or to be  performed by such

public official."   18  U.S.C.    201(c)(1)(A) (1988).   Notably,

under the gratuity  guideline, there is  no requirement that  the

gift be "corruptly" given  with the intent to affect  the payee's

mindset or actions.  Phrased another way, the  gratuity guideline

presumes a situation in which the offender gives the gift without

attaching any  strings,  intending it  instead  as a  reward  for

actions  the public  official  has already  taken  or is  already

committed to take.

          With these distinctions in mind, appellants' contention

                                19

is easily dispelled.   Here, Mariano admitted that he  paid large

sums  of  money  in  order   to  forestall  city  officials  from

reassigning  the work.    Butterworth likewise  admitted that  he

forked  over $100,000 so that  he could retain valuable contracts

which Pawtucket might otherwise  have redirected to a competitor.

Since Mariano and Butterworth  each sought to receive a  quid pro
                                                                 

quo, in the form  of future (favorable) treatment, and  since the
   

offenses to  which they  pleaded guilty involved  corrupt intent,

the district  court's determination that their  actions were more

akin  to  bribe-giving  than   to  gift-giving  was  not  clearly

erroneous.

          To be sure, appellants  protest that they were victims,

not  perpetrators,  of  an  extortionate scheme,  and  that  they

received nothing extra in  return for their magnanimity.   We are

unmoved  by these  plaints.   The fact  that appellants,  in some

sense, may have  been the quarry of a pack  of venal politicians,

and did not themselves  initiate the forbidden transactions, does

not negate  the district court's  choice of a  guideline analogy.

Bribery and extortion are not mutually exclusive concepts.   See,
                                                                

e.g.,  United States v. Hathaway,  534 F.2d 386,  395 (1st Cir.),
                                

cert. denied, 429  U.S. 819 (1976).  And the fact that appellants
            

had already  received sewer-line and stadium  repair contracts at

payoff time  is  also not  outcome  determinative.   Despite  the

chronology,  the  district  court  could  supportably  find  that

Mariano and Butterworth corruptly intended their illicit payments

to influence the  future actions of the late,  unlamented Sarault

                                20

administration.

          We  need go no further.   Having willingly  sat down to

sup  with the devil, appellants  cannot now expect  the courts to

swallow their tale uncritically.  The guideline analogy chosen by

the  district  court was  well within  its  purview.   See United
                                                                 

States v.  St. Cyr, 977  F.2d 698, 706  (1st Cir.  1992) (holding
                  

that  "when  there are  two plausible  views  of the  record, the

sentencing  court's adoption of  one such view  cannot be clearly

erroneous"); Ruiz, 905 F.2d at 508 (similar).
                 

          The defendants' sentences are vacated and the cases are
                                                                 

remanded for resentencing.
                         

                                21
