
USCA1 Opinion

	




          March 30, 1993        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 91-2233                                                UNITED STATES,                                      Appellee,                                          v.                                KEITH JAMES PARKINSON,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ___________________               Christopher W.  Dilworth and  Dilworth,  White &  Brandt  on               ________________________      __________________________          brief for appellant.               Richard S.  Cohen,  United  States  Attorney,  and  F.  Mark               _________________                                   ________          Terison, Assistant United States Attorney, on brief for appellee.          _______                                  __________________                                  __________________                                 Opinion on Rehearing                 Per Curiam.  Keith Parkinson appeals from his conviction                 __________            on a  single count of bank robbery, in violation of 18 U.S.C.              2113(a).  He raises  four issues, two involving evidentiary            rulings  at trial  and two  pertaining to  his sentence.   We            affirm the conviction but remand for resentencing.1                                      I.  Background                                        __________                 Shortly  before noon on February  15, 1990, a man robbed            the Casco Northern Bank's West End branch in Portland, Maine.            He handed  the teller a note,  written on the back  of a bank            form, which read, "Put  all your hundreds and fifties  on the            counter  now."  The teller complied, and the man escaped with            $1300.    At  trial,  the  teller,  Sara  Plourd,  identified            defendant  as the individual in question.  So did Amy Bolduc,            another  teller who had been seated adjacent to Plourd at the            time  of  the  robbery.    (Both  had  separately  identified            defendant earlier  in a photographic line-up  prepared by the            FBI.)   Defendant  was also  identified  by Roger  Sabin,  an            employee  of  a  restaurant located  near  the  bank,  as the            individual who arrived shortly after 11:00  on the morning of            the  robbery, drank two beers while looking out the window in            the bank's  direction, and  then departed.   Finally,  an FBI            expert document  examiner, who had compared  the robbery note                                            ____________________            1.  On  December 4, 1992, we  issued an opinion  in this case            affirming both the conviction and the sentence.   In response            to defendant's  petition for rehearing, we  have vacated that            earlier opinion and issued the instant one in its stead.                                         -2-            with handwriting exemplars obtained from defendant, testified            that the  note and the exemplars had been written by the same            person.  Following the one-day trial, defendant was convicted            and sentenced to twenty years in prison.                           II.  Authentication of Robbery Note                              ______________________________                 We   first  address   defendant's   argument  that   the            government presented an  inadequate foundation for  admission            of the  robbery note.  At trial, Sara Plourd was asked if she            recognized the note and responded: "Yes, that's the note that            the  man gave me."   And following the  note's admission into            evidence, the  FBI document examiner identified  it (by means            of his initials which he had  written on the back) as the one            that had been sent  to him for examination; as  mentioned, he            also identified the writing as that  of defendant.  As he did            below, defendant now argues that the court erred in admitting            the  note   because  the   government  failed  to   prove  an            uninterrupted  chain  of custody.    We  review the  district            court's  ruling for  abuse of  discretion, see,  e.g., United                                                       ___   ____  ______            States v. Collado, 957 F.2d 38, 39 (1st Cir. 1992).            ______    _______                 Defendant's claim  falters for the reasons  expressed in            United States v. Abreu, 952 F.2d 1458, 1467 (1st Cir.), cert.            _____________    _____                                  _____            denied,  112 S. Ct. 1695 (1992).  Where "the offered evidence            ______            is  of  the  type that  is  not  readily  identifiable or  is            susceptible of alteration, a testimonial tracing of the chain            of custody  is necessary."  Id.   The purpose thereof  "is to                                        ___                                         -3-            render  it  improbable  that   the  original  item  has  been            exchanged  with   another  or  has  been   tampered  with  or            contaminated."  Id.  Yet no  testimony as to chain of custody                            ___            is necessary where the evidence "is readily identifiable by a            unique  feature or  other  identifying mark."   Id.;  accord,                                                            ___   ______            e.g., United  States v. Hernandez-Herrera, 952  F.2d 342, 344            ____  ______________    _________________            (10th Cir. 1991) (where  "documents are uniquely identifiable            and relatively  resistant to  change, the establishment  of a            chain of custody is  not necessary"); see also Fed.  R. Evid.                                                  ________            901(b)(1)  & (4).  It  is not disputed  that the robbery note            here fell within this latter category.  See, e.g., M. Graham,                                                    ___  ____            Federal Practice  & Procedure:  Evidence    6822, at  854 n.6            ________________________________________            (interim ed.  1992) (citing to case involving  holdup note as            one involving  "unique and readily identifiable"  evidence in            this  respect).   Authentication  was properly  accomplished,            therefore,  through Plourd's identification, without the need            for chain-of-custody testimony.                             III.  Evidence of Other Crimes                                  ________________________                 Defendant's  next challenge  involves evidence  that was            never  introduced at trial.  The day after the Maine robbery,            defendant  committed a  similar bank  robbery in  Boston;2 by            the  time of  the Maine  trial, he  had pled  guilty to  this                                            ____________________            2.  From the  government's brief  offer of proof,  it appears            that this robbery occurred at approximately noon, when a note            written on the back of a bank form, and containing  the words            "Put  your hundreds,  fifties on  counter,"  was handed  to a            teller.                                         -4-            offense and been  sentenced therefor  in Massachusetts  state            court.   Defendant's  criminal history  involved a  series of            other offenses, including convictions in 1977 for kidnapping,            robbery and  rape, and  earlier convictions for,  inter alia,                                                              __________            aggravated  assault,  larceny,  and escape.    The government            planned  to introduce  evidence of  the Boston  robbery under            Fed.  R.  Evid.  404(b)  in order  to  establish  defendant's            identity;  it  also  indicated  that,  should  the  defendant            testify, it  planned to introduce evidence of all his earlier            convictions  under Fed. R. Evid.  609 in order  to attack his            credibility.  Defendant  filed a motion in limine  seeking to                                                    _________            exclude  all such evidence of his past convictions.  During a            break  in the  trial, the court  addressed these  matters and            issued a three-part  ruling.   It held that  evidence of  the            Boston robbery  was admissible  under Rule 404(b),  given the            similarity of the  two robberies and  the fact that  identity            was  the major  issue at  trial.3   As to  the admissibility,                                            ____________________            3.  The government planned to introduce proof of this robbery            through the testimony of the arresting Boston Police officer.            No voir dire was held (or requested); instead, the government               _________            described  the  officer's  anticipated  testimony  through an            offer of proof.  The court's ruling was therefore necessarily            conditional.  It held in part: "I believe that the government            has satisfied Rule 404(b),  that [given] the circumstances as            described, if that  is the gist  of the witness's  testimony,                       _________________________________________________            that  the jury  could indeed  conclude that it  confirmed the            identity of the  defendant, if the jargon  of signature crime            is used."  Tr. at 103-04 (emphasis added).  The court went on            to find, under  Rule 403,  that the probative  value of  such            evidence was  not substantially  outweighed by the  danger of            unfair prejudice.  Id.   See Advisory Committee Note  to Rule                               ___   ___                                         -5-            under Rule 609, of defendant's convictions in 1977, the court            reserved judgment pending defendant's testimony.  And it held            defendant's other  convictions to be  inadmissible under Rule            609.                 As it turned  out, none of this  evidence was introduced            and defendant did  not testify.   In response  to an  inquiry            from the  court, defense  counsel indicated that  the primary            reason  for  defendant  to  testify  would  be  to  rebut  or            otherwise explain  the Boston robbery; if  that evidence were            not to be introduced,  there would be a  "minimal" likelihood            of  the defendant testifying.4  The court then encouraged the            government  to  consider  whether  to  introduce  the  Boston            robbery  evidence,  and  suggested that  both  sides  confer.            During a  recess, the  government and defense  counsel agreed            that if the evidence of that robbery were not introduced, the                                            ____________________            404(b) (explaining requisite balancing  test by reference  to            Rule 403 factors).                4.  The exchange between the court and defense counsel was as            follows:                      THE COURT:     [A]m  I  correct  in  believing                 that the  only witness  for the defendant  would be                 the defendant himself?                      MR. DILWORTH:  Probably, yes.                      THE COURT:     Now  as  I understand  it also,                 your decision to put the defendant on is because of                 the 404(b)  testimony, if that were  not coming in,                 you would not be putting him on?                      MR. DILWORTH:  Well, it's his decision.                      THE COURT:     I understand.                       MR. DILWORTH:  I  would say the chances of him                 testifying are  much, much less.   I'd say minimal,                 if the 404 evidence wasn't coming in.            Tr. at 125.                                         -6-            defendant would  not testify.  Defense  counsel and defendant            both  affirmatively  acknowledged  to  the  court  that  they            approved of  this arrangement.5  The  government then rested,            as did the defense without putting on any witnesses.                 Defendant  now  seeks to  challenge  the  denial of  his            motion in  limine  to  exclude  the evidence  of  the  Boston                   __________            robbery.  We agree with the government that, based on a  line            of cases commencing with  Luce v. United States, 469  U.S. 38                                      ____    _____________            (1984),  defendant  has failed  to  preserve  this issue  for            appeal.                   The defendant  in  Luce filed  an  in limine  motion  to                                    ____            _________            preclude  the government  (in  the event  he testified)  from            relying on an earlier conviction to impeach him under Fed. R.            Evid. 609(a).  The motion was denied, yet defendant chose not            to testify and the impeachment evidence was never introduced.            The Court held  that "to  raise and preserve  for review  the            claim  of improper  impeachment  with a  prior conviction,  a            defendant  must testify."    Id. at  43.   It  cited  various                                         ___            reasons  for  this  decision.   First,  without  the  precise            factual context  that such testimony would  have provided, an            appellate court is handicapped in reviewing the balance drawn            between probative value and  prejudice.  Id. at 41.   Second,                                                     ___                                            ____________________            5.  Defense  counsel  stated:  "I've discussed  this  with my            client, Your Honor, and  he's decided that he's not  going to            testify on  the condition that  the government agrees  not to            introduce the Rule 404(b) evidence."  Tr. at 127.  Defendant,            in response to the court's inquiry, confirmed this.                                         -7-            for  much the same reason, the trial court's in limine ruling                                                         _________            is necessarily tentative and "subject to change when the case            unfolds";  any  possible  harm  stemming  therefrom  is  thus            "wholly speculative."  Id. at 41.  Third, there is  no way of                                   ___            knowing whether  the government ultimately would have elected            to  use  the impeachment  evidence.   Id. at  42.   Fourth, a                                                  ___            reviewing court cannot tell to what degree, if at all, the in                                                                       __            limine ruling contributed to a defendant's decision to remain            ______            silent.   Id.  And finally, given the difficulty of reviewing                      ___            for  harmless  error in  the  absence of  a  concrete factual            setting,  requiring  a  defendant  to  testify  in  order  to            preserve his  objections makes it more  difficult to "'plant'            reversible error" in the record.  Id.                                               ___                 We have joined other  courts in extending this reasoning            beyond  the  confines  of Rule  609.    In  United States  v.                                                        _____________            Griffin, 818 F.2d 97  (1st Cir.), cert. denied, 484  U.S. 844            _______                           ____________            (1987), for example, we applied Luce to the Rule 403 context.                                            ____            There,  the  prosecutor  proposed  to  explain  a  government            witness' delay in  coming forward by  offering evidence of  a            third-party  threat against  him.   The  court sustained  the            defendant's objection  to such  evidence under Rule  403, but            warned that, if  defense counsel  cross-examined the  witness            concerning  such  delay,  the  prosecution  could   use  such            evidence in  rebuttal.  No  such cross-examination  occurred,            and the "threat"  evidence was thus never introduced.  Noting                                         -8-            that  Rule   403  "necessitates   much  the  same   genre  of            comparative  analysis" as Rule  609, id. at  104, and finding                                                 ___            each  of   the  Luce   concerns  applicable,  we   held  that                            ____            defendant's challenge  to such  ruling never ripened  into an            appealable issue.   Id. at 103-06.  See also United States v.                                ___             ________ _____________            Nivica,  887 F.2d  1110, 1115-17  (1st Cir.  1989) (defendant            ______            sought  advance ruling  that, if  he took  the  stand, cross-            examination  would be limited to  the scope of  direct and to            questions bearing  on  credibility; motion  was  denied,  but            defendant never testified or  asked for voir dire;  held that                                                    _________            ruling  was  not appealable),  cert.  denied,  494 U.S.  1005                                           _____________            (1990).   And other courts  have applied Luce  to Rule 404(b)                                                     ____            situations similar to that involved here.  See, e.g.,  United                                                       ___  ____   ______            States v. Ortiz, 857  F.2d 900, 904-06 (2d Cir.  1988) (trial            ______    _____            court held  that prior  conviction could be  introduced under            Rule  404(b) only if defendant  argued issue of personal drug            use;  defendant   refrained  from  arguing   such  issue,  so            conviction  was never  introduced; held  that ruling  was not            appealable),  cert. denied,  489  U.S.  1070  (1989);  United                          ____________                             ______            States v.  Johnson, 767  F.2d 1259, 1269-70  (8th Cir.  1985)            ______     _______            (trial  court ruled  that  government would  be permitted  to            introduce  past  convictions under  Rule  404(b)  as rebuttal                                         -9-            evidence if defendants  testified; defendants never took  the            stand; held that ruling was not appealable).6                 These  cases  are  admittedly distinguishable  from  the            instant case  in one respect.  In  each of them, the evidence            in question  was held  to be  conditionally admissible.   The            trial  court in  each instance  ruled that  it could  only be            introduced  if  a subsequent  event  occurred  (i.e., if  the                        __            defendant in  Luce  or Nivica  or Johnson  testified; if  the                          ____     ______     _______            defendant in Griffin challenged the witness'  credibility; if                         _______            the defendant in Johnson raised the personal-use issue).  And                             _______            in  each  instance,  the  merits of  the  evidentiary  ruling                                      ______            necessarily  depended (to  a greater  or lesser  extent) upon            further factual  development.  As we stated  in Nivica: "None                                                            ______            of these requests [in Luce,  Griffin and Nivica] were capable                                  ____   _______     ______            of  meaningful  resolution  in  a vacuum.    Ultimately,  the            trier's  decision, whatever his  initial inclination,  had to            depend upon ... development  of a specific record ...."   887            F.2d at 1117.  In the  instant case, by contrast, there is no            such connection  between the  court's Rule 404(b)  ruling and            the defendant's  prospective testimony.  The  evidence of the            Boston robbery was not  rebuttal or impeachment evidence; the            government was permitted to introduce it in its case-in-chief                                            ____________________            6.  The Johnson court explained:  "Although Luce was  decided                    _______                             ____            under Fed. R. Evid.  609(a)(1), its logic applies  with equal            force to  motions under  Rule 404."   767 F.2d  at 1270.   We            quoted this  comment with  apparent approval in  Griffin, 818                                                             _______            F.2d at 105.                                         -10-            to  establish  identity.7    Accordingly,   the  Rule  404(b)            determination here  could have  been definitively made  (in a            concrete  factual  setting  allowing  for  appellate  review)            during the government's case-in-chief.                   For this  reason, the first Luce concern--the difficulty                                             ____            of  balancing   probative  and  prejudicial  effects   in  an            evidentiary vacuum--could  have been avoided here.   Yet that            factor  is  in  fact  implicated, due  to  circumstances  not            involved in the  above cases.   While the  Rule 404(b)  issue            could have  been definitively  resolved here and  an adequate            _____            record developed, such did not occur.  The government's offer            of  proof only  outlined the  anticipated testimony  from the            Boston officer in generalized  fashion, providing few details            concerning the second robbery.8   Defendant never requested a            voir  dire.   See  Griffin, 818  F.2d  at 105  ("counsel  may            __________    ___  _______                                            ____________________            7.  The  fact   that  defendant's  decision  not  to  testify            resulted in  that evidence  not being introduced  was nothing            more  than happenstance,  stemming solely  from the  parties'            last-minute agreement.              8.  The Court  in Luce held that an offer of proof was not an                              ____            acceptable   substitute   for  actual   testimony,   since  a            defendant's  "trial   testimony  could,  for  any  number  of            reasons,  differ  from the  proffer."   469  U.S. at  41 n.5.            Given  the  limited  and  specific nature  of  the  testimony            expected from the  Boston officer, one might  argue that this            concern is  of less weight here.  Cf. Ortiz, 857 F.2d at 906-                                              ___ _____            07  (Pierce, J., concurring) (rejecting applicability of Luce                             __________                              ____            because,  unlike   the  anticipated  testimony   there,  "the            district court could, prospectively,  have reviewed what  the                           _____            defense counsel's  arguments would have been,  and could have            held the  defense counsel  to those proffers  of argument.").            We need not decide  this issue, since the proffer  here lacks            sufficient details to permit meaningful review in any event.                                         -11-            request that ... the  actual testimony be screened  voir dire                                                                _________            in the  jury's  absence" in  order  to supply  the  necessary            context).   The court was  thus compelled to  make its ruling            contingent on the Boston's officer's testimony turning out to            be as described.  On this record, any effort by this court to            review  the district  court's  balancing  of probative  value            versus  prejudicial   effect  would   be  difficult   if  not            impossible.                   Each  of  the  remaining  Luce  factors,   moreover,  is                                           ____            directly implicated.   The district court  might have altered            its  ruling upon hearing the Boston officer's testimony.  The            government  might have  elected independently  to  forgo such            evidence,   given  the   strength   of  its   case.     Other            considerations, such as the prospect of the Rule 609 evidence            being  admitted,   might  have  contributed   to  defendant's            decision not to testify.  And the sparse factual record would            have  hampered any review  by this court  for harmless error.            Accordingly,  we conclude  that defendant's challenge  to the            Rule 404(b)  ruling never  ripened into an  appealable issue.            Cf. Freeman v.  Package Machinery Corp., 865 F.2d  1331, 1337            ___ _______     _______________________            (1st Cir. 1987) (warning that litigants must exercise caution            in relying on in  limine rulings as the basis  for preserving                          __________            evidentiary objections).                                   IV.  Sentencing                                        __________                                         -12-                 Relying  on    4B1.1 of  the sentencing  guidelines, the            district court  classified  defendant as  a career  offender.            This yielded  a criminal history  category of VI,  an offense            level  of 32,  and  (in light  of  the statutory  maximum)  a            sentencing range  of 210-240 months.   The court  imposed the            maximum of 240 months, and ordered that it  run consecutively            to the  ten-to-twenty year sentence imposed  earlier in state            court  for the  Massachusetts bank  robbery.9   Defendant now            argues, as  he did briefly  below, that under  the guidelines            the federal sentence must run at  least partly in concurrence            with his  state  sentence.10    In  a  related  argument,  he            contends that  the court employed an  erroneous offense level            in calculating that a consecutive sentence was warranted.  As            we  find  this  latter  contention persuasive,  we  need  not            address the former.                   Section  5G1.3 addresses the  sentencing of  a defendant            subject  to an  undischarged term  of imprisonment.11   Three                                            ____________________            9.  The state sentencing occurred in April 1990.            10.  His  principal  argument  below  was  that  the  federal            sentence  should  have  been completely  concurrent  with his                                         __________            state sentence.  He has abandoned this contention on appeal.            11.  An  amended  version  of  this section  took  effect  on            November   1,  1991--thirteen   days  prior   to  defendant's            sentencing.  As he  did below, defendant in his  brief relies            on  the  earlier version,  without mentioning  such revision.            Yet, the amended version of   5G1.3 does not adversely affect            defendant's sentencing; indeed, it lends some strength to the            arguments  he advances  here.   As  such,  no ex  post  facto                                                          _______________            concerns  arise, and the amended version governs.  See, e.g.,                                                               ___  ____            United States v. Aymelek, 926 F.2d 64, 66 n.1 (1st Cir. 1991)            _____________    _______                                         -13-            separate categories  of situations  are set forth,  each with            different sentencing ramifications.  Subsection  (a) requires            imposition  of a  consecutive sentence  where, inter  alia, a                                                           ___________            defendant  commits  an   offense  while  serving   (or  after            sentencing for, but  before commencing service of)  a term of            imprisonment.     This   provision   is  inapplicable   here.            Subsection (b)  applies where,  inter alia,  the undischarged                                            __________            prison term resulted  from "offense(s) that constituted  part            of the same course of conduct as the instant offense and have            been fully taken  into account  in the  determination of  the            offense level for the instant offense."   In such a case, the            sentence  should produce  a  combined sentence  equal to  the            total punishment  that would have been imposed  under   5G1.2            had  all sentences  been imposed  at the  same time,  with an            adjustment for time already  served.  This provision likewise            appears inapplicable.  While  the Boston robbery was included            in  defendant's   criminal  history,  it  did   not  in  fact            contribute to  his offense  level: defendant would  have been            classified  as  a  career  offender  even  without  reference            thereto.                                            ____________________            ("Barring ex post facto concerns, the guidelines in effect at                      _____________            the  time of sentencing, not  those in effect  when the crime            was committed,  control  at sentencing.");  United States  v.                                                        _____________            Cousens, 942 F.2d  800, 801 n.1  (1st Cir. 1991).   (We  also            _______            note that    5G1.3  was again amended  effective November  1,            1992--after defendant's sentencing.)                                         -14-                 The remaining provision  provides: "In  any other  case,            the  sentence for the instant offense shall be imposed to run            consecutively to the prior  unexpired term of imprisonment to            the  extent  necessary to  achieve  a reasonable  incremental            punishment  for the instant offense."   Id.    5G1.3(c).  The                                                    ___            commentary elaborates as follows:                 To the extent practicable, the court shall impose a                 sentence for the instant  offense that results in a                 combined  sentence  that  approximates   the  total                 punishment  that would  have been  imposed  under                   5G1.2 (Sentencing on Multiple Counts of Conviction)                 had all  of the offenses been  federal offenses for                 which  sentences were  being  imposed at  the  same                 time.            Id. comment. (n.4).  Section 5G1.2(b), in turn, provides that            ___            "the  sentence imposed ...  shall be the  total punishment as            determined in accordance with  Part D of Chapter Three  ...."            And     5G1.2(d)  provides  that  consecutive  sentences  are            permissible  "only  to  the  extent necessary  to  produce  a            combined sentence equal to the total punishment."12                   The district  court determined that, had  both robberies            been   considered  together   for  purposes   of  sentencing,                                            ____________________            12.  Section 5G1.2(d) reads in full as follows:                  If the  sentence imposed on the  count carrying the                 highest statutory  maximum is  less than  the total                 punishment, then  the sentence  imposed  on one  or                 more of the  other counts shall run  consecutively,                 but  only  to the  extent  necessary  to produce  a                 combined  sentence equal  to the  total punishment.                 In all other respects sentences on all counts shall                 run  concurrently, except  to the  extent otherwise                 required by law.                                         -15-            defendant would have faced a "total punishment" of 262 to 327            months.   It reached  this conclusion in  part by calculating            that, under   3D1.4 (which  provides for the determination of            a  combined  offense  level  for multiple  counts),  the  two            robberies  would   have  led  to  a   two-level  increase  in            defendant's offense  level.  The court  applied this increase            to  the career  offender level  of 32  derived from    4B1.1,            resulting in  an offense level of  34.  (A level of  34 and a            criminal   history  category  of   VI  yields  the  indicated            sentencing  range.)    Defendant   now  argues  that  it  was            inappropriate to apply the two-level increase from   3D1.4(a)            to the career offender level derived from   4B1.1.                 Defendant is  correct in this regard,  as the government            effectively  concedes.  Section  4B1.1 specifically provides:            "If  the offense level for  a career criminal  from the table            below is greater than the offense level otherwise applicable,            the  offense level from the  table below shall  apply."  This            directive makes  clear that  "the  career offender  guideline            supersede[s]  the  'otherwise  applicable   offense  level.'"            United States v.  Elwell, No.  91-1621, slip op.  at 18  (1st            _____________     ______            Cir. Jan.  20, 1993).   The  "Application Instructions"  in              1B1.1 confirm the point.  As we explained in United States v.                                                         _____________            Alves, 873 F.2d  495 (1st  Cir. 1989), the  first step  under            _____            that section's sequential format is to use the actual statute            of conviction to determine the offense level,   1B1.1(a)-(b),                                         -16-            and  then  to apply  any  adjustments  deriving from  Chapter            Three,   1B1.1(c)-(e).                   After  this is  done,  the court  looks  to see  if                 provisions  in Chapter  4,  Part B  apply, such  as                 career offender provisions,  which may set  another                 offense level.     1B1.1(f)....   The guidelines do                                                   _________________                 not  then  apply  the   adjustments  noted  in                      ___________________________________________________                 1B1.1(c)-(e)  to  the  level  found  for  a  career                 ___________________________________________________                 offender....   If the application  instructions are                 ________                 followed in  the order written,  as they presumably                 should be, a career  criminal is never allowed [the                 reductions specified in Chapter Three].            873 F.2d at 497 (emphasis added).                  For this reason, we have on several occasions noted that            the applicability  of   4B1.1  obviated any  need to  examine            potential  offense-level  adjustments  deriving from  Chapter            Three.   See, e.g.,  Elwell, supra, slip  op. at 18  (role in                     ___  ____   ______  _____            offense under   3B1); United States v. Morales-Diaz, 925 F.2d                                  _____________    ____________            535,  540  (1st Cir.  1991)  (same); United  States  v. Ruiz-                                                 ______________     _____            Garcia, 886  F.2d 474,  476 (1st Cir.  1989) (obstruction  of            ______            justice under   3C1);  Alves, 873 F.2d at 497  (acceptance of                                   _____            responsibility  under      3E1).13     The   same  conclusion            necessarily applies  to adjustments under    3D1 for multiple            counts.   See, e.g., United  States v. Streit,  962 F.2d 894,                      ___  ____  ______________    ______            901 (9th  Cir.) (describing  sentence), cert. denied,  113 S.                                                    ____________            Ct. 431 (1992); United States v. Poff, 723 F. Supp. 79, 80-81                            _____________    ____            (N.D.  Ind. 1989), aff'd on  other grounds en  banc, 926 F.2d                               ________________________________                                            ____________________            13.  Subsequent to our Alves decision,   4B1.1 was amended to                                   _____            permit  a reduction in the offense level of a career offender            for acceptance of responsibility.   No other such adjustments            deriving from Chapter Three have been authorized.                                         -17-            588 (7th  Cir.), cert. denied,  112 S. Ct.  96 (1991).14   It                             ____________            is  apparent, therefore,  that  the district  court erred  by            adding the  two-level increase  derived from    3D1.4  to the            career offender level derived from   4B1.1.15                 The  government, while  not contesting  this conclusion,            argues that  a remand for  resentencing is  unnecessary.   It            reasons  as follows.    (1) Without  the two-level  increase,            defendant's offense  level  would be  32.   With  a  criminal            history category of  VI, he  thus would have  faced a  "total            punishment"  of  210-262  months  had  both  robberies   been            considered together.   (2)  As the two  sentences now  stand,            defendant could end up serving a combined total of  as few as            284  months.16   (3) While 284  exceeds 262 (the  high end of                                            ____________________            14.  The  fact that    5G1.2(b)  specifically refers  back to            "the total punishment as determined in accordance with Part D            of  Chapter  Three"  does  not  change  this  result.    That            reference necessarily encompasses  any additional  adjustment            from   4B1 as well.  The final provision in Part D of Chapter            Three makes this clear.  Section 3D1.5, entitled "Determining            the Total Punishment," reads: "Use the combined offense level            to determine the appropriate  sentence in accordance with the            provisions of Chapter Five."  And the accompanying Commentary            adds: "The  combined offense level is  subject to adjustments            from ... Chapter Four, Part B ...."            15.  The   court's  oversight  was   understandable,  as  the            miscalculation was  contained in  the presentence  report and            was embraced below by both  the defendant and the government.            Indeed, it was  advanced by  both parties on  appeal and  was            adopted  by this  court in the  original decision;  not until            defendant  filed his  petition  for rehearing  was the  error            mentioned.            16.  The  government   calculates  as  follows.     Defendant            received a ten-to-twenty year sentence in state court.  Under            Mass. G.L. c. 127,   129, the Commonwealth deducts twelve and                                         -18-            the  applicable  sentencing  range  had both  robberies  been            considered  together),  it is  close  enough  to satisfy  the            guidelines.  For as noted above, the guidelines only call for            a  sentence  that "approximates"  the  total punishment  that            would have been imposed, "to the extent practicable."                 We  need  not address  the  validity  of these  specific            contentions, as we conclude that a remand for resentencing is            appropriate in any event.   In the original opinion  we noted            that  (again  due  largely  to the  parties'  oversight)  the            district court failed to employ the  methodology set forth in            the applicable version  of    5G1.3 in deciding  to impose  a            consecutive  sentence.    We   think  that  this   additional            shortcoming, when combined  with the erroneous  offense-level            calculation, suffices  under the  circumstances to  warrant a            remand.  We intimate no view as to the appropriateness of (1)            any specific sentence  to be imposed upon resentencing or (2)            any  upward or  downward  departure that  either party  might            request.                                            ____________________            one-half  days  from the  sentence  for  each  month of  good            conduct, meaning that with such credits defendant would serve            at  most eleven years and nine months.  More important, under            G.L.  c. 127,   133,  defendant would be  eligible for parole            after serving two-thirds of his minimum sentence--i.e., after            80 months.   As to  the federal sentence,  under 18 U.S.C.               3624(b),  defendant would  receive a  54-day credit  for each            year  of "satisfactory  behavior,"  meaning he  could end  up            serving  204 months  out  of  the  240  imposed.    For  both            sentences in conjunction, therefore,  he could end up serving            as few as 284 months.                                         -19-                 The conviction is affirmed, the sentence is vacated, and                 ________________________________________________________            the case is remanded for resentencing.              ______________________________________                                         -20-
