

                UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT
                                         

No. 96-2042

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                         ALINA PEREZ,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Robert E. Keeton, U.S. District Judge]                                                                

                                         

                            Before

                    Torruella, Chief Judge,                                                      

                Aldrich, Senior Circuit Judge,                                                         

                  and Lynch, Circuit Judge.                                                      

                                         

Lenore Glaser with whom  Stern, Shapiro, Weissberg &amp; Garin was  on                                                                      
brief for appellant.
Michael  J. Pelgro,  Assistant United  States Attorney,  with whom                              
Donald K. Stern, United States Attorney, was on brief for appellee.                       

                                         

                       January 23, 1998
                                         

          ALDRICH, Senior Circuit Judge.  Defendant-appellant                                                   

Alina  Perez,  convicted  of  federal  controlled   substance

offenses   and  with  a  record  of  prior  state  controlled

substance  offenses, was sentenced as a career offender under

the United States Sentencing Guidelines.  She had asked for a

downward departure, and appealed its denial.  We remanded for

clarification, and she is now here again, no better off.

          Perez's indictment  in the  District Court  for the

District of Massachusetts was  on one count of  conspiracy to

distribute   heroin  and  four   counts  of   possession  and

distribution of heroin  in furtherance of the  conspiracy, in

violation  of 21  U.S.C.    846 and  841(a)(1), respectively.

She pled guilty to  the conspiracy charge and  to two of  the

distribution charges,  and nolo  contendre to  the other  two                                                      

distribution  charges.  Because of two prior state controlled

substance  felony  convictions, she  met the  career offender

definition of  U.S.S.G.    4B1.1 (1995).    Achieving  career

offender  status  meant  an initial  total  offense  level of

thirty two, an automatic criminal history category of VI, the

highest, and a  guideline sentencing range of  151-188 months

after a three point offense level reduction for acceptance of

responsibility.

          At  her  first sentencing  hearing,  Perez  did not

dispute the  literal  applicability of  the  career  offender

provision,  but  contended  that she  was  a  "small player,"

                             -2-

outside  the heartland of career offender drug cases, because

the amounts of  drugs involved in her offenses,  and her role

in  them,  had  been  small.    She  accordingly  requested a

downward departure under   4A1.3,1 but the court refused.  On

appeal, we remanded  for clarification of the  court's basis,

in  light of United States v.  Lindia, 82 F.3d 1154 (1st Cir.                                                 

1996), which we had recently decided.   At resentencing Perez

again requested  departure under    4A1.3.   In response  the

court acknowledged Lindia, but stated that  it was limited to                                     

permissible considerations, or  "factors," and that smallness

of predicates was  an impermissible consideration.   In light

of Congressional mandate, whether she was a small player  was

                                                    

1.  Adequacy of Criminal History Category (Policy Statement)                                                     

                          . . . . .

          There  may  be  cases   where  the  court
          concludes  that  a  defendant's  criminal
          history   category  significantly   over-
          represents   the    seriousness   of    a
          defendant's  criminal   history  or   the
          likelihood that the defendant will commit
          further crimes.  An example might include
          the case of  a defendant  with two  minor
          misdemeanor  convictions  close   to  ten
          years prior to the instant offense and no
          other evidence of prior criminal behavior
          in the intervening period.  The court may
          conclude  that  the  defendant's criminal
          history  was  significantly  less serious
          than that of most defendants  in the same
          criminal history category  (Category II),
          and   therefore   consider   a   downward
          departure from the guidelines.

                             -3-

a  "forbidden factor,"  beyond consideration  for a  downward

departure.  We quote.

               A   statute,   28   U.S.C.   994(h),
          mandates  that  a  "career  offender"  as
          defined in the statute receive a sentence
          at or near  the maximum term  authorized.
          See   4B1.1, Background.   The definition                         
          of controlled substance offense specifies
          the  minimum  severity  of  offense  that
          qualifies  as one  of  the two  offenses,
          that,  at minimum,  are needed  to invoke
          the Career Offender provision.  Thus, the
          congressional mandate  does not  speak of
          the  medium-level   controlled  substance
          offense as the  heartland for determining
          whether a  person is  a Career  Offender.
          Instead, the  minimum level  offense that
          is sufficient to qualify  for meeting the
          Career  Offender   test  is   within  the
          heartland, by statutory mandate.

          The court added, as to which there is no complaint,

that it would have granted  a departure had it had discretion

to do so.  It did, however, once the sentence range  had been

calculated  without that departure, take the lowest permitted

as the final figure on the ground of Perez's relatively small

role in the offenses.  We have two questions:  (1)   Whether,

if an open  matter, the court's construction was  sound.  (2)

Whether,  in light of  Lindia, it was  open.   We answer both                                         

questions in the affirmative.

          This  court will not  overturn a refusal  to depart

from  the federal Sentencing Guidelines unless the sentencing

court abused its discretion.   See Koon v. United States, 116                                                                    

S.  Ct.  2035,  2043  (1996).   At  the  same  time,  whether

consideration  of a given  factor is impermissible  under any

                             -4-

circumstances is a question of law, and we need not defer  to

the district court's resolution.

          We start with 28 U.S.C.   994(h), that requires the

Sentencing Commission to "assure" that the Guidelines produce

sentences for  certain three-time  ("career") offenders  that

are "at  or near  the maximum  term authorized" by  statute.2

The Court,  recognizing Congress's  maximum intent,  has held

                                                    

2.        The  Commission  shall  assure  that  the
          guidelines specify  a sentence to  a term
          of imprisonment  at or  near the  maximum
          term   authorized   for   categories   of
          defendants  in  which  the  defendant  as
          eighteen years old or older and--

               (1)  has  been convicted  of  a
               felony that is--

                     (A)   a  crime   of
                     violence; or

                     (B)    an   offense
                     described        in
                     section 401  of the
                     C o n t r o l l e d
                     Substances  Act (21
                     U.S.C.         841)
                     . . . ; and

               (2)    has   previously    been
               convicted of two  or more prior
               felonies, each of which is--

                     (A)   a  crime   of
                     violence; or

                     (B)    an   offense
                     described        in
                     section 401  of the
                     C o n t r o l l e d
                     Substances  Act (21
                     U.S.C.         841)
                     . . . .

                             -5-

this to  be the  term reached after  applying any  applicable

statutory enhancements.  United States v. LaBonte, 117 S. Ct.                                                             

1673 (1997) (6-3),  rev'g United States  v. LaBonte, 70  F.3d                                                               

1396  (1st  Cir.  1996) (2-1).    The  Commission implemented

  994(h) with  Guidelines   4B1.1,3  that computes  sentences

for career  offenders based  on the  identical but  re-termed

"offense  statutory  maximum."    In  our  LaBonte  decision,                                                              

finding broad discretion in the Commission, we upheld a prior

version  of    4B1.1's  Application  Note   2  that  excluded

statutory  enhancements  from  the words  "offense  statutory

maximum."   Then, between our  decision and its  reversal, we

held, broadly,  in United  States  v. Lindia,  82 F.3d  1154,                                                        

1164-65 (1st Cir. 1996), that a district court might consider

a career  offender's criminal history "unusual,"  and outside

the "heartland" of  career offender cases,  and, if so,  that

  4A1.3  allowed downward departure.   We  made no  review or

analysis of the type of criminal history involved, but simply

noted that this  departure turned on whether  career offender

treatment inaccurately reflected  criminal history within the

                                                    

3.  U.S.S.G.    4B1.1 provides that  a defendant is  a career
offender if (1) the defendant was at least eighteen years old
at the time  of the instant offense, (2)  the instant offense
of conviction is a felony that is either a crime  of violence
or a controlled  substance offense, and (3) the defendant has
at least  two prior felony  convictions of either a  crime of
violence or a controlled substance offense.

                             -6-

meaning of 18 U.S.C.   3553(b),4   id. at 1165, viz., whether                                                  

a  career  offender defendant's  particular history  had been

adequately  considered by the  Commission in  formulating the

Guidelines.

          We note, by  way of initial observation,  at least,

something of  a puzzlement:   in  light of the  Congressional

stricture "at  or near,"  how to  reconcile Congress's  clear

purpose of maximum  sentences for three-time violent  or drug

offenders,  id.  at  1164,  with   allowing  adjustments5  or                           

downward departures by   4A1.3 which might be sizeable?  Does

that mean  that "at or  near" should be broadly  construed to

permit substantial reductions when they are applicable?  Does

it suggest possible non-recognition of  some type or types of

                                                    

4.  18 U.S.C.   3553(b) provides, in relevant part:

          (b) Application of guidelines in imposing
          a sentence. --  The court shall  impose a
          sentence  of  the  kind,  and within  the
          range,  [provided   by  the   guidelines]
          unless the court  finds that there exists
          an aggravating or mitigating circumstance
          of a kind, or to a degree, not adequately
          taken   into    consideration   by    the
          Sentencing Commission in  formulating the
          guidelines  that   should  result   in  a
          sentence different from that described.

5.  The  Guidelines  specifically  authorize  application  of
  3E1.1 (acceptance  of responsibility) to  career offenders.
Whether   3B1.2 (mitigating role in instant offense) also may
apply is  unsettled.  Compare  United States v.  Beltran, 122                                                                    
F.3d  1156, 1160 (8th  Cir. 1997); United  States v. Morales-                                                                         
Diaz, 925 F.2d  535, 540 (1st Cir. 1991);  with United States                                                                         
v. Williams, 37  F.3d 82, 84 (2d Cir. 1994); United States v.                                                                      
Alvarez, 914 F.2d 213, 214-15 (10th Cir. 1990).                   

                             -7-

adjustments or departures  applicable to ordinary defendants?

We find  no pertinent  legislative history.   In  LaBonte the                                                                     

Court remarked, "This statutory phrase unquestionably permits

a  certain  degree  of flexibility  for  upward  and downward

departures and adjustments."   117 S. Ct. at 1678.   The word

"certain" was not defined.

          Since adjustments and departures could well achieve

a  substantial reduction from the maximum authorized term, it

is not surprising that  wide variations have developed  as to

what is perceived to be within "at or near" and, accordingly,

the degree  of flexibility  allowed to the  courts.6   In our

LaBonte  decision alone the  majority, stating there  must be                   

some "play in the joints,"  accepted a sentence 61.4% of what

it thought the applicable statutory maximum, 70 F.3d at 1409-

10,  while  the dissenter  thought  even 72.8%  would  not be

                                                    

6.  See United States v. Novey,  78 F.3d 1483, 1487 n.5 (10th                                          
Cir.  1996) (noting  that  a sentence  91%  of the  statutory
maximum was "near"  but that 73% was not),  cert. denied, 117                                                                    
S. Ct. 2407  (1997); United States v. Moralez,  964 F.2d 677,                                                         
683  n. 5  (7th  Cir.) (noting  that  a sentence  83%  of the
statutory maximum "may well be short of being 'at or near the
maximum  term  authorized'"),  cert.  denied,  506  U.S.  903                                                        
(1992); see generally United States  v. Branham, 97 F.3d 835,                                                           
846-47 (6th Cir. 1996); United  States v. Hernandez, 79  F.3d                                                               
584, 598-99  (7th Cir. 1996),  cert. denied, 117 S.  Ct. 2407                                                       
(1997); United States v.  Fountain, 83 F.3d 946, 952-53  (8th                                              
Cir.  1996), cert.  denied, 117  S. Ct.  2412 (1997);  United                                                                         
States  v.  Gardner, 18  F.3d  1200, 1202  (5th  Cir.), cert.                                                                         
denied,  513 U.S. 879 (1994); United  States v. Norflett, 922                                                                    
F.2d 50, 53 n. 4 (1st Cir. 1990); United States v.  Hays, 899                                                                    
F.2d  515,  520-21  (6th Cir.)  (Merritt,  C.J., dissenting),
cert. denied,  498 U.S. 958  (1990); United States  v. Alves,                                                                        
873 F.2d 495, 498 (1st Cir. 1989).

                             -8-

"near."   Id.  at 1418.    In the  present case  the district                         

court, supra, even while excluding smallness of predicates as                        

a ground for  departure, ended by imposing a  sentence 63% of

the  maximum  authorized  by  giving  Perez  the  benefit  of

accepting  responsibility.7   Had  it  been  free  to  depart

downward because of  the smallness of the offenses, the court

indicated that  it would  have sentenced Perez  to a  mere 21

months (9%), within the range applicable without   4B1.1.

          This  extended  recital, if  it does  nothing else,

reveals  a  picture  that supports  the  conclusion  that the

Commission, commanded to "assure" that the Guidelines produce

near maximum sentences  for the statutorily  defined category

of recidivists, did not  want to leave open  to the courts  a

departure from the statutory figure  based on the size of the

offenses.   We  believe  it  made this  clear  by adopting  a

single, broad definition of "felony."8  Second,  it adopted a

single  criminal history category rather than a sliding scale

based  on  the seriousness  of  the past  offenses.   Compare                                                                         

                                                    

7.  The  applicable  statutory  maximum  was  20  years  (240
months).  Under the Guidelines, Perez's applicable sentencing
range  initially was  210-262  months.    Crediting  her  for
accepting responsibility brought her applicable range to 151-
188 months.  The court then, within its discretion, chose the
low end,  151 months, 63%  of 240 months, for  the recognized
small role in the offenses.

8.  We  note that "felony" for   4B1.1 purposes includes both
large  and small offenses.  See   4B1.2, Commentary (defining                                           
felony as an "offense punishable by death or imprisonment for
a term exceeding one year.").

                             -9-

  4B1.1 (assigning  criminal history  category VI  to "every"

career  offender "case"),  with    4A1.1 and  Ch.  5, pt.  A,                                           

Sentencing Table (determining  criminal history category  for

non-career offenders  by the number  of accumulated  criminal

history  points).  With such deliberate  uniformity, how is a

court suddenly  to determine, at  the low end when  all other

degrees  of seriousness  had  been  treated equally,  special

terms  for one  group?   And on  what basis?9   For  ordinary

offenders, where there  is a sliding  point scale, the  curve

may be thought to continue.  Here there is no curve at all. 

          Perhaps the  best answer to  defendant's claim lies

in  the district court's proffered alternative:  removing her

from the career offender category entirely.  Thus if downward

departure   was  possible  based  on  the  smallness  of  the

offenses, we would have a  provision -- whose sole purpose is

special,   substantially  increased   sentences  for   repeat

offenders that meet a specific description -- completely read

out  of  the  Guidelines  by  a  judicial  finding  that  the

Commission  could not really have intended to include what it

said  it  did.    This  cannot be  the  purpose  of  downward

departures.   Rather,  we  hold  that  every  offender  whose

offenses  meet the  statutory career  offender definition  is

                                                    

9.  To put this in mathematical terms, suppose a  court rates
seriousness of the  offense at 1-20.   On what  basis can  it
determine that number  1 was unusual, and that the Commission
had not thought  of it, and that  if it had thought  it would
not have applied the even treatment it gave 2-20?

                             -10-

within  the intended  heartland, and  departure is  available

only  for  those personally,  and  not  by  the size  of  the

offenses,    demonstrating   an    absence   of    recidivist

tendencies.10

          This conclusion accords with the statutory purpose.

To speak  the  obvious,  the unique  feature  of  the  career

offender provision is its focus  on recidivism.  To return to

Labonte, 117 S. Ct. at 1677, "Congress has expressly provided                   

enhanced maximum penalties  for certain categories of  repeat

offenders in an effort to  treat them more harshly than other

offenders."   Congress itself defined  the felonious  conduct

whose    repetition,     reflecting    habituality     and/or

                                                    

10.  We have no quarrel with  the principle that there may be
downward departures  because of  individual circumstances  in
literal  career offender cases  that indicate the  absence of
recidivism.   Cf. United  States v. Collins,  122 F.3d  1297,                                                       
1306-07 (10th Cir. 1997) (age and infirmity of defendant, and
fact that  one predicate  conviction was  close to  ten years
prior to the instant offense); United States  v. Fletcher, 15                                                                     
F.3d 553,  557 (6th  Cir. 1994)  (combination of  defendant's
extraordinary  family   responsibilities,  the  age   of  his
predicates, the time intervening between the  predicates, and
his attempts to deal with drug  and alcohol problems); United                                                                         
States   v.  Shoupe,  988  F.2d  440,   447  (3d  Cir.  1993)                               
(defendant's  age  and  immaturity  at  time  of  predicates,
temporal  proximity of  predicates, and fact  that predicates
occurred nearly fifteen  years before  the instant  offense);
United  States v.  Clark, 8  F.3d 839,  845 (D.C.  Cir. 1993)                                    
(exposure  to  domestic  violence  and  childhood abuse  that
"significantly  affected   [defendant's]  predisposition   to
commit his first  two crimes"); United States  v. Bowser, 941                                                                    
F.2d 1019, 1024-25 (10th Cir. 1991) (defendant's young age at
the  time of his predicates, close  temporal proximity of the
predicates,  and  fact  that  defendant   had  been  punished
concurrently for  the predicates); United States v. Lawrence,                                                                        
916 F.2d 553,  554 (9th Cir. 1990)  (psychiatrist's testimony
that likelihood of recidivism was low).

                             -11-

incorrigibility, demands stiff punishment.   When, in another

circumstance, the  Commission took  a lower  maximum, and  we

approved it in LaBonte, the  Court reversed.  Here we do  not                                  

think that the Commission even intended differentiation to be

possible.

          It is true  that some courts have, in part, allowed

consideration of the "minor nature" of the past offenses, but

none   has   adequately   established   a   connection   with

recidivism.11

          There remains the question whether it is open to us

to  make this  decision.   Clearly we  are not  foreclosed by

Koon,  a non-career  offender case, whose  general discussion                

relates  to matters not  fully considered by  the Commission.

Koon  does  not  advise  us  as to  what  factors  meet  that                

definition in a career offender  case.  We are more concerned

with our decision in Lindia, 82  F.3d at 1165, where we said,                                       

speaking generally,  that  a sentencing  court  might  depart

downward on the basis of a career offender's criminal history

if it considered it "unusual":

          When faced with a  departure motion in  a
          career-offender case, as  in other cases,
          the   court's   experience   and   unique
          perspective will  allow it  to decide  if
          the  case  before  it falls  outside  the
          guideline's    "heartland,"    warranting
          departure. 

                                                    

11.   See United States v.  Spencer, 25 F.3d 1105, 1113 (D.C.                                               
Cir. 1994); United States v.  Smith, 909 F.2d 1164, 1169 (8th                                               
Cir. 1990), cert. denied, 498 U.S. 1032 (1991).                                    

                             -12-

We believe our decision in Lindia did not rule it was open to                                             

a  court to  find  smallness  of offenses  to  make a  career

offender's case  unusual, or  go so far  as to  foreclose our

holding that some  parts of criminal history  have been fully

considered  by  the Commission.    If  it  be felt  that  our

unpublished memorandum order  on remand here12 could  be read

as saying the opposite, it is not the law of the case, and we

may reconsider.

          Affirmed.                              

                - Dissenting opinion follows -

                                                    

12.            In  view   of  our   recent  opinion
          clarifying that  a sentencing  court "may
          invoke    4A1.3 to  depart downward  from
          the  career   offender  category   if  it
          concludes that the  category inaccurately
          reflects the defendant's  actual criminal
          history,"  United States  v. Lindia,  No.                                                         
          95-2200, slip  op. at 21 (1st  Cir. April
          18, 1996), together  with our uncertainty
          whether   the  district   court  made   a
          discretionary decision not  to depart or,
          instead,  viewed  its authority  as  more
          restricted than Lindia  allows, we vacate                                            
          the  sentence  and   remand  for  further
          consideration.

                             -13-

          LYNCH, Circuit Judge, dissenting.  With respect for                      LYNCH, Circuit Judge, dissenting.                                          

the views of my colleagues, I am compelled to dissent.  In my

mind, the  majority opinion misreads the  controlling statute

and  the United States Sentencing Guidelines, and is contrary

to the  precedent of the  Supreme Court, this court,  and the

decisions  of each  of the  other circuit  courts which  have

considered  the issue.    Our  holding  in United  States  v.                                                                     

Lindia, 82 F.3d  1154 (1st Cir. 1996)  directly controls this                  

case, as does  the Supreme Court's holding in  Koon v. United                                                                         

States,  116  S. Ct.  2035  (1996), and  those  cases require                  

reversal.

          The  sole issue to be decided is whether departures

under  U.S.S.G.     4A1.3  are  categorically prohibited  for

defendants classified  as career offenders  under U.S.S.G.   

4B1.1 when the defendant's prior criminal record may over- or

understate the seriousness  of the offenses and  the district

court could find that this defendant was not in the heartland

of career  offenders.13   The district  court concluded  that

                                                    

13.  The  career  offender provisions  are  triggered by  two
prior convictions.  The quantities of drugs and Alina Perez's
role in  the prior offenses  are documented in the  record of
the district court.   Ms. Perez, a heroin  addict, sold drugs
for $60  to an  undercover police officer  in 1987,  and pled
guilty to  distribution of  heroin and cocaine  in 1988.   In
1991, Ms. Perez was arrested for distribution of cocaine.
   In fairness  to the government,  it should  be noted  that
there were three other state court drug convictions which the
defendant successfully vacated before her federal sentencing.
In addition, after  her federal sentence, she  pled guilty to
another state cocaine distribution charge and received a five

                             -14-                                          14

such a categorical  prohibition deprived it of  discretion to

consider whether Perez's criminal history category overstated

the seriousness  of her  prior crimes  and therefore  whether

Perez could receive a downward departure.  The district court

decided that it  had no discretion to depart,  but said that,

if it  were  permitted,  it would  have  granted  a  downward

departure.14  On this question of law, the district court was

in  error;  it  was not  forbidden  from  considering whether

defendant's  offenses  fall  within  the  heartland  or  were

atypical.

          Offenders, such  as defendant Perez,  who have  two

prior felony  convictions for  controlled substance  offenses

are automatically placed in criminal history category VI (the

highest criminal  history category)  and assigned  an offense

level  determined by  the "offense  statutory maximum"  under

                                                    

year sentence concurrent with her federal sentence.
   In this federal offense, Perez was arrested for possession
of 13.641  grams of heroin.   Without the application  of the
career  offender guidelines, her  sentencing range would have
been 18 to 24 months.  Because she was a career offender, her
sentencing range jumped to 151 to 188 months.

14.  It is settled law that  great deference is accorded to a
district court's determination  that a case falls  outside of
the heartland.   When,  as in this  case, the  district court
decides  that  a case  is  so  unusual  that a  departure  is
warranted, deference is  owed to its "special  competence" in
deciding  whether the  case before  it is  a heartland  case.
See, e.g.,  Koon, 116 S. Ct.  at 2046-47; Lindia, 82  F.3d at                                                            
1165; United States v. Rodriguez-Cardona, 924 F.2d 1148, 1157                                                    
(1st  Cir. 1991).   The  majority's  concerns about  "special
treatment  for one  group" are  misplaced.   Every  departure
raises the same difficult issue of separating an unusual case
from ordinary cases.

                             -15-                                          15

U.S.S.G.   4B1.1.  The Guidelines sentencing table mandates a

sentencing range (in  this case 151 to 188  months) where the

defendant's  criminal  history  category  and  offense  level

intersect.  Section 4A1.3 allows  a sentencing court to grant

a  departure  from  the  sentencing  range  mandated  by  the

Guidelines  when  the  "defendant's   criminal  history  [is]

significantly  less serious than  that of most  defendants in

the same criminal history category . . . ."

          The  majority  concludes  that  departures under   

4A1.3  based   on   an  offender's   criminal   history   are

categorically   forbidden  for   career   offenders.     This

conclusion derives  from  the  majority's  misreading  of  28

U.S.C.   994(h).  The  majority's conclusion depends upon its

assertion that   994(h) requires the Sentencing Commission to

"produce" sentences for three-time  ("career") offenders that

are "at  or  near the  maximum term  authorized" by  statute.

That  assertion is  not correct.   What the  statute actually

says is:  "The Commission  shall assure  that the  guidelines                                                                         

specify a sentence  to a term of imprisonment at  or near the                   

maximum  term authorized for [career offenders]." 28 U.S.C.  

994(h) (emphasis added).

          The Guidelines do indeed  specify such sentences at

or near the maximum for career offenders in U.S.S.G.   4B1.1.

But  nothing in    994(h)  requires that  every  offender who                                                           

falls under  the Guidelines provisions  for career  offenders

                             -16-                                          16

receive the maximum  sentence.  The Guidelines  were designed

to  allow for departures when appropriate, and departures are

permissible  in exceptional  cases.  See  Lindia, 82  F.3d at                                                            

1165   ("Section  994(h),   however,   is  directed   to  the

Commission's  duty  to  formulate  guidelines  pertaining  to

categories of defendants, not to sentencing courts faced with

individual  defendants."); United  States v.  Novey, 78  F.3d                                                               

1483, 1489 (10th Cir. 1996) ("Section 994(h) does not mandate

that each individual defendant receive a sentence 'at or near

the  maximum term authorized.'   Rather, the  statute directs

the Commission to  assure that the guidelines  specify such a

term for 'categories of defendants' in which the defendant is

a recidivist violent felon or drug offender.").

          Because  of the misreading  by the majority,  it is

important  to  clarify  the  proper  method  for  determining

whether  a departure  is warranted  under  U.S.S.G.    4A1.3.

Section  4A1.3  is   concerned  with  the  accuracy   of  the

defendant's  criminal history  category.   Under  U.S.S.G.   

4A1.3,  the point of reference for departures is a comparison

with  the other offenders in the defendant's criminal history

category.   The proper departure  inquiry in this case  is to

compare  the  defendant  to   the  "typical"  or  "heartland"

criminal history category VI offender.  As   4A1.3 says:

        There may be cases where the  court concludes
        that a defendant's  criminal history category
        significantly over-represents the seriousness
        of  a  defendant's  criminal  history or  the                                                            

                             -17-                                          17

        likelihood  that  the defendant  will  commit
        further  crimes.  . .  .      The  court  may
        conclude   that   the   defendant's  criminal                                                                 
        history was  significantly less  serious than                                                                 
        that of most defendants in the  same criminal                                                                 
        history category . . . and therefore consider                                    
        a downward departure from the guidelines.

U.S.S.G.   4A1.3 (emphasis added)

          The  question is  not whether  the  previous offenses

were "small" but  rather whether the offender's  criminal history

is  so "significantly  less serious"  than that of  the heartland

criminal  history category  VI offender  (not  just other  career

offenders) that a  departure is warranted.  Cf.  United States v.                                                                        

Reyes, 8  F.3d 1379, 1384  (9th Cir. 1993) (proper  comparison is               

with other offenders).

          In  addition  to  its misreading  of  the controlling

statute, the  majority ignores the  plain language of  U.S.S.G.  

4A1.3.  Section  4A1.3 repeatedly states that a  departure may be

granted  if "the criminal  history category does  not reflect the

seriousness  of  the  defendant's past  criminal  conduct  or the                                                                       

likelihood  that   the  defendant  will   commit  other  crimes."

(emphasis added).   The Guideline's use of the  word "or" instead

of "and" is telling.  Under   4A1.3, a defendant's "past criminal

conduct" may alone justify a departure, apart from his likelihood                            

of  recidivism.    The  majority's  attempt  to  distinguish  the

overwhelming  precedent contrary to  its decision on  the grounds

that these  other  cases  did not  establish  a  connection  with

recidivism is  contrary to the plain meaning of    4A1.3.  In any

                             -18-                                          18

event, an offender's  criminal past is an excellent  (perhaps the

best) predictor of his likelihood of recidivism.

          Nor does the majority consider that upward departures

from criminal  history category VI  are explicitly endorsed  by  

4A1.3, based on  "the nature of the prior offenses."   This court

has  routinely  approved  such   upward  departures  for   repeat

offenders  based on  their prior  bad  acts.   See, e.g.,  United                                                                           

States v. Black, 78 F.3d 1,  8 (1st Cir. 1996); United States  v.                                                                       

Parkinson, 44 F.3d  6, 10 (1st  Cir. 1994).   Under the  majority                   

opinion,    4A1.3 becomes a one-way rachet; upward departures may

be granted based on prior  offenses, but not downward departures.

The plain language  of   4A1.3 demonstrates that,  except for the

specific exception of criminal history category I offenders, both

upward  and  downward  departures   are  contemplated.    Neither

Congress nor the  Sentencing Commission intended  such a lack  of

even-handedness.

          In addition to misreading the controlling statute and

the language of  the Guidelines, the majority  also misinterprets

controlling precedent.  The majority incorrectly implies that the

Supreme Court's recent decision in  United States v. LaBonte, 117                                                                      

S.  Ct.  1673 (1997)  undercuts  our  holding  in Lindia  that  a                                                                  

sentencing court may grant a career offender a downward departure

if  the  court  concludes  that  the  guideline  career  offender

criminal history category  inaccurately reflects the  defendant's

                             -19-                                          19

criminal history.  LaBonte has little bearing on the issue to  be                                    

decided in this case.

          LaBonte  addresses  the  offense  level  axis of  the                             

sentencing table,  not the criminal  history category axis.   The

issue in LaBonte was not departures but the meaning of the phrase                          

"offense  statutory  maximum"  for   purposes  of  computing   an

offender's  offense  level.    The  Court  was  asked  to  decide

"whether,  by 'maximum term  authorized,' Congress meant  (1) the

maximum  term available for  the offense of  conviction including

any  applicable statutory sentencing  enhancements, . .  . or (2)

the maximum  term available  without such enhancements  . .  . ."

LaBonte, 117 S. Ct. at 1675.                 

          LaBonte concerned the structure of the Guidelines and                             

determined that, in order to assure that the  "guidelines specify                                                                           

a sentence to a term of imprisonment  at or near the maximum term

authorized  for [career offenders]"  as mandated  by 28  U.S.C.  

994(h),  the phrase "maximum  term authorized" must  "include all

applicable statutory  sentencing enhancements."   LaBonte, 117 S.                                                                   

Ct.  at  1675.     LaBonte  does  not,  however,   foreclose  the                                    

possibility of departures  for unusual career offenders  who fall

outside the heartland.  

          Indeed, LaBonte cuts  against the majority's holding.                                     

In   LaBonte,  the   Supreme  Court   remarked   that      994(h)                      

"unquestionably permits a certain degree of flexibility for . . .

downward departures . . . ."   LaBonte, 117 S. Ct. at 1678.   But                                                

                             -20-                                          20

the Court was careful to point out that the "pertinent issue"  in

the case  was  "'not  how  close  the sentence  must  be  to  the

statutory maximum,  but to  which  statutory maximum  it must  be

close.'"  Id. at 1678 (quoting United States v. Fountain, 83 F.3d                                                                  

946, 952 (8th Cir. 1996)).   LaBonte's reference to departures is                                              

perhaps  dicta,  but  this dicta  further  demonstrates  that the

majority misinterprets the case.

          This  court has already decided the issue, in Lindia,                                                                          

against the majority position.  This court decided in Lindia that                                                                      

"a sentencing  court may invoke    4A1.3 to depart  downward from

the  career-offender category if  it concludes that  the category

inaccurately reflects the defendant's actual criminal history . .

. ."   Lindia, 82 F.3d at  1165.  Lindia addressed  precisely the                                                  

issue we face  in this case.   Lindia noted that our  circuit has                                               

long recognized  that when  a case  falls outside the  applicable

guideline's heartland,  a  departure may  be warranted.   Id.  at                                                                       

1164.   Lindia recognized that  there were some factors  that had                        

been "explicitly  rejected as permissible  grounds for departure"

but held that the Commission  had "not designated as a 'forbidden

departure' the  overrepresentation of a criminal history category

in career offender cases."  Id. at 1164-65.                                         

          Lindia's holding  is consistent with the  holdings of                            

each of the other circuit courts that have considered this issue,

both  before and  after Lindia  was decided.   See,  e.g., United                                                                           

States v. Collins, 122 F.3d 1297, 1304 (10th Cir. 1997) ("[F]or a                           

                             -21-                                          21

defendant  who technically  qualifies as  a  career offender  but

whose criminal history and likelihood of recidivism significantly

differ from  the heartland  of career  offenders, the  sentencing

court  may  consider   a  departure  from  the   career  offender

category.");  United States v. Spencer, 25  F.3d 1105, 1113 (D.C.                                                

Cir. 1994); United States v. Fletcher, 15 F.3d 553, 557 (6th Cir.                                               

1994); Reyes,  8 F.3d  at 1383-84; United  States v.  Shoupe, 988                                                                      

F.2d 440, 447  (3d Cir. 1993); United States v.  Rogers, 972 F.2d                                                                 

489, 493-94  (2d Cir. 1992);  United States v. Beckham,  968 F.2d                                                                

47, 54 (D.C. Cir. 1992) (agreeing with "the unanimous judgment of

the  other circuit  courts to  have considered  the issue  that  

4A1.3 authorizes  a  downward  departure  when  criminal  history

category  VI, assigned pursuant to the career offender guideline,

significantly  overrepresents the  seriousness  of a  defendant's

past  criminal conduct and the likelihood of recidivism") (citing

cases); United States v. Lawrence, 916 F.2d 553, 554-55 (9th Cir.                                           

1990); United States v. Brown, 903 F.2d 540, 545 (8th Cir. 1990).                                       

In both Spencer and Reyes, our  sister circuits held specifically                                   

that  departures for  career offenders  are  permissible under   

4A1.3  when the  defendant's predicate  offenses  were relatively

minor.

          The majority opinion is also directly contrary to the

Supreme Court's holding in Koon, and to the intent of Congress as                                         

interpreted  by Koon.   Koon  explained that  "a  federal court's                                      

examination of whether a factor  can ever be an appropriate basis

                             -22-                                          22

for  departure is limited  to determining whether  the Commission

has proscribed,  as a  categorical matter,  consideration of  the

factor.  If the answer to the question is no . . . the sentencing

court  must determine  whether the  factor, as  occurring in  the

particular circumstances, takes the case outside the heartland of

the applicable Guideline."  Koon, 116 S. Ct.  at 2051.  Thus if a                                          

factor  is  not expressly  forbidden,  it  may  at least  in  the

exceptional  case serve  as  the  basis for  a  departure.   Koon                                                                           

explicitly  states  that "for  the  courts to  conclude  a factor

[other than an explicitly forbidden factor such as race] must not

be considered under any circumstances  would be to transgress the

policymaking authority vested in the Commission."  Id. at 2050.                                                                

          In Koon the Supreme Court  expressly held that only a                             

few  reasons  for  departure are  entirely  prohibited  under the

Guidelines, as the Guidelines do  not limit the kinds of factors,

whether  or not mentioned  anywhere else in  the Guidelines, that

could constitute grounds  for departure in an unusual  case.  The

only  departure factors entirely forbidden by the Guidelines are:

race, sex,  national origin,  creed,  religion and  socioeconomic

status, see  U.S.S.G.   5H1.10, lack of  guidance as a youth, see                                                                           

U.S.S.G.    5H1.12,  drug or alcohol  dependence, see  U.S.S.G.                                                                 

5H1.4,  and  economic  duress,  see      5K2.12.    In  contrast,                                             

departures  for atypical  criminal  history,  far  from  being  a

forbidden  factor, are specifically  encouraged under  U.S.S.G.  

4A1.3.   See Collins,  122 F.3d at  1304 ("Because  section 4A1.3                              

                             -23-                                          23

provides an encouraged basis for departure not already taken into

account by the  Commission, over-representation of a  defendant's

criminal history  or likelihood for recidivism always  will be an

approved ground for departure."); Lindia, 82 F.3d at 1165.                                                  

          The majority  holds  that,  because  the  defendant's

prior drug felonies are the reason she is categorized as a career

offender,  her prior crimes  were already "adequately  taken into

account  by   the  Sentencing   Commission  in   formulating  the

guidelines," U.S.S.G.   5K2.0,  and could not therefore  serve as

the basis of a departure.   Koon explicitly addressed this issue,                                          

and decided  that if a  Guideline already takes a  certain factor

into account, then the factor  must be present to an "exceptional

degree" before a departure may be granted.  But Koon, contrary to                                                              

the reasoning  employed by  the majority, did  not rule  out such

departures entirely.   Under Koon, if an encouraged factor (e.g.,                                           

criminal history under   4A1.3)  is already taken into account by

a  Guideline  (as  is criminal  history  in  the  career offender

guideline),  "the  court  should depart  only  if  the factor  is

present to an  exceptional degree or in some other  way makes the

case  different  from  the  ordinary case  where  the  factor  is

present."  Koon, 116 S. Ct. at 2045.  See also Lindia, 82 F.3d at                                                               

1164-65; United States v. Rivera,  994 F.2d 942, 947-49 (1st Cir.                                          

1993).  Under Koon, the majority's holding that  departures under                            

 4A1.3 for  career offenders  are precluded  by  implication is

                             -24-                                          24

incorrect.   Departures for career offenders under   4A1.3 should

be extremely rare, but it is wrong to forbid them entirely.

          Koon's   holding   that  only   expressly   forbidden                          

departure factors  may never serve  as the basis for  a departure

has been, until today, regularly followed by this court, and thus

the  majority's  position  is  in  conflict  with  other  of  our

precedent.  See, e.g., United States v. Brewster, 127 F.3d 22, 26                                                          

(1st Cir.  1997) (noting that  it is a "fundamental  principle of

departure  jurisprudence: that,  in the  absence  of an  explicit

proscription,  courts generally  should not  reject categorically

any factor as a potential departure predicate"); United States v.                                                                        

Clase-Espinal, 115 F.3d 1054, 1060 (1st Cir. 1997) (noting Koon's                                                                         

instruction that "with few  exceptions, departure factors  should

not  be ruled  out on  a  categorical basis");  United States  v.                                                                       

Hardy,  99 F.3d  1242,  1249  (1st Cir.  1996)  (stating that  "a               

departure  criterion  cannot  be  deemed   impermissible  in  all

circumstances    unless   categorically    foreclosed   by    the

Commission").  In  Brewster, the court  said that a  "fundamental                                     

lesson" of prior  First Circuit caselaw is "'that  a court should

not infer from  inexplicit Guidelines language, or  from language

that  authorizes use  of a  particular factor  in some  cases, an

absolute barrier in principle against using certain other factors

as  grounds for departure in other  unusual circumstances.'"  127

F.3d at 27  (quoting United States  v. Doe, 18  F.3d 41, 47  (1st                                                    

Cir. 1994)).

                             -25-                                          25

          In  United States  v. Olbres,  99  F.3d 28  (1st Cir.                                                  

1996),  this court  interpreted  Koon as  dictating  that even  a                                               

discouraged factor such as a defendant's vocational skills is not

categorically  prohibited as a basis for a departure.  See id. at                                                                        

34-35   ("Categorical   interpretations    'would   nullify   the

Commission's treatment  of particular  departure factors and  its

determination that, with few exceptions, departure factors should

not be ruled out  on a categorical  basis.' . .  . [E]ven if  the

present  case  merely  concerned  vocational  skills,  a  per  se

approach  would be  inappropriate and  the  district court  would

still  have  to  consider  whether  the  case  was  in  some  way

'different from the ordinary case where the factor is present.'")

(quoting  Koon,  116  S. Ct.  at  2045,  2051).   In  contrast to                        

vocational   skills,   departures   under      4A1.3      for  an

overrepresentative  criminal  history category  are  specifically

encouraged under  the Guidelines.   As Olbres  and a host  of our                                                       

other  opinions point out,  Koon rejected categorical  denials of                                          

departures based on all  but a few explicitly  forbidden factors,

such as sex and race.

          Departures under   4A1.3  for career offenders  based

on the nature of the  defendant's involvement and the quantity of

drugs in  the prior  offenses are  not categorically  foreclosed.

The majority opinion  effectively overrules  Lindia, something  a                                                             

subsequent  panel does  not have  the power  to do.    See United                                                                           

States v. Graciani, 61 F.3d  70, 75 (1st Cir. 1995); Williams  v.                                                                       

                             -26-                                          26

Ashland Eng'g  Co., 45 F.3d 588, 592 (1st  Cir. 1995).  Lindia is                                                                        

directly on point,  and has not been undercut  by the controlling

authority of LaBonte.  Cf. Stella v.  Kelley, 63 F.3d 71, 74 (1st                                                      

Cir. 1995).

          The  majority  compounds its  error  by clouding  its

holding with  a  distinction  based on  the  "type"  of  criminal

history involved.   The suggested distinction  between "personal"

versus  "offense" criminal  history is  a  distinction without  a

difference.   An offender's criminal history category is computed

based  on that person's  prior criminal acts,  i.e., the offenses

the  person  committed.   The  offenses  in which  the  defendant

participated define an offender's criminal history.                             

          Our  role is  limited to  deciding an  issue of  law:

whether a  departure based on  the character  of the  defendant's

prior  offenses is  ever permissible  for career  offenders.   In

accordance  with Koon, our  precedent, and  the precedent  of our                               

sister circuits, I would answer this question in the affirmative.

The Supreme Court  in Koon has committed, in  the first instance,                                    

the  decision  whether  to  exercise  this  discretion  to  grant

allowable departures to the district court.  See Koon, 116 S. Ct.                                                               

at 2046-47.

          I would  reverse the  district court  and remand  the

case for resentencing.

                             -27-                                          27
