                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-20-2003

USA v. D'Amario
Precedential or Non-Precedential: Precedential

Docket No. 02-2371




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation
"USA v. D'Amario" (2003). 2003 Decisions. Paper 76.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/76


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                         PRECEDENTIAL

                               Filed November 20, 2003

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


             Nos. 02-2371 & 02-3250


          UNITED STATES OF AMERICA,
                             Appellant
                        v.
                ARTHUR D’AMARIO

               ON APPEAL FROM THE
        UNITED STATES DISTRICT COURT
       FOR THE DISTRICT OF NEW JERSEY
               (D.C. No. 01-cr-00346)
       District Judge: Hon. Joseph E. Irenas

               Argued: June 2, 2003
Before: ALITO, ROTH, and STAPLETON, Circuit Judges

        (Opinion Filed: November 20, 2003)
                  CHRISTOPHER J. CHRISTIE
                  United States Attorney
                  GEORGE S. LEONE
                  Chief, Appeals Division
                  DEBORAH L. GOLDKLANG (Argued)
                  970 Broad Street, Room 700
                  Newark, New Jersey 07102-2535
                  Counsel for Appellant
                                     2


                           LORI M. KOCH (Argued)
                           Assistant Federal Public Defender
                           800-840 Cooper Street, Suite 350
                           Camden, New Jersey 08102
                           Counsel for Appellee


                    OPINION OF THE COURT

ALITO, Circuit Judge:
   This appeal requires us to review a downward departure
from the sentence prescribed by the United States
Sentencing Guidelines.1 The defendant, Arthur D’Amario,
was convicted of violating 18 U.S.C. § 115(a)(1)(B) by
threatening to kill a federal judge with the intent to impede,
intimidate, and interfere with the judge while engaged in
the performance of official duties, and with intent to
retaliate against the judge on account of the performance of
official duties. The defendant committed this crime while
serving a prison term on a federal conviction for possession
of a firearm by a convicted felon. The defendant was
apparently motivated to write the threatening letter by
frustration regarding the way in which time that he spent
in custody after arrest was taken into account in
determining the amount of time that he was required to
serve on the federal felon-in-possession conviction and a
related state sentence. The District Court’s downward
departure appears to have been designed in large part to
rectify this determination. We reverse and remand for
resentencing within the Guidelines range.

                                     I.
  In early February 1999, law enforcement officers in
Rhode Island executed a search warrant for D’Amario’s
residence and found a handgun and ammunition. At that
time, D’Amario was on probation for a prior state felony

1. The District Court applied the 1998 version of the Guidelines. Neither
party challenges this decision, and all of our citations are to that version
as well.
                                   3


conviction. Rhode Island state authorities arrested
D’Amario for violating the terms of his state probation, and
he was assigned to a state correctional facility pending
disposition of the state probation violation charge.
   On March 3, 1999, D’Amario was indicted by a federal
grand jury in the District of Rhode Island for possession of
a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). Because all of the district judges in the District
of Rhode Island were recused, D’Amario’s federal case was
assigned to Judge Joseph A. DiClerico, Jr., of the District
of New Hampshire, who sat by designation in the District of
Rhode Island. On March 5, D’Amario was transferred to
federal custody pursuant to a writ of habeas corpus ad
prosequendum but was returned to state custody on
September 15. On December 20, 1999, he was again
transferred to federal custody, this time for trial. A jury
found D’Amario guilty on the felon-in-possession charge,
and on March 10, 2000, Judge DiClerico sentenced him to
18 months’ imprisonment. Judge DiClerico recommended
that the Bureau of Prisons (“BOP”) give D’Amario credit for
the period that he had spent in custody since his federal
indictment. In so doing, however, Judge DiClerico
recognized that the BOP was not required to accept his
recommendation. See App. at 782.
  Following the federal sentencing, D’Amario was returned
to the state for the probation violation hearing, and on
March 13, 2000, Judge Clifton of the Rhode Island Superior
Court sentenced D’Amario to a term of 386 days’
imprisonment and entered a judgment for “time served,”
crediting D’Amario for the time that he had spent in
custody from February 22, 1999, to the date of the
judgment. App. at 755, 775. D’Amario was then released to
federal custody to serve his federal sentence and was sent
to the Federal Correctional Institution at Ft. Dix, New
Jersey. Because almost all of the time that D’Amario had
spent in custody following his arrest had already been
credited against his state sentence, the BOP declined under
18 U.S.C. § 3585(b)2 to credit any of that time against his

2. 18 U.S.C. § 3585(b) provides:
                                    4


federal felon-in-possession sentence. Under that provision,
time spent in custody before sentencing may be credited
against a sentence if, among other things, that time “has
not been credited against another sentence.” Id.
  Although D’Amario could have challenged the BOP’s
decision in administrative proceedings, he did not do so but
instead filed a petition for a writ of habeas corpus under 28
U.S.C. § 2241 in the District of Rhode Island. On June 5,
2000, Judge DiClerico dismissed the petition without
prejudice to re-filing in the District of New Jersey after
exhaustion of administrative remedies.3 In an appeal, the
United States Court of Appeals for the First Circuit affirmed
D’Amario’s conviction and sentence and held that he could
not contest the BOP’s decision concerning his sentence
until he had exhausted administrative remedies. United
States v. D’Amario, 2 Fed. Appx. 25, 2001 WL 120055,
2001 U.S. App. LEXIS 16669 at *29 (1st Cir. Feb. 12,
2001).
  D’Amario then mailed a letter dated June 22, 2000, from
Ft. Dix to Ed Roy, Esq., his attorney in the state and
federal cases in Rhode Island. The letter stated in pertinent
part:

    A defendant shall be given credit toward the service of a term of
    imprisonment for any time he has spent in official detention prior to
    the date the sentence commences—
      (1)   as a result of the offense for which the sentence was imposed;
    or
      (2) as a result of any other charge for which the defendant was
    arrested after the commission of the offense for which the sentence
    was imposed;
    that has not been credited against another sentence.
3. D’Amario also appears to have litigated this issue, in some form, in
the Rhode Island courts, where he filed a “Motion to Reduce Sentence,”
which was denied without prejudice on May 31, 2000. See State v.
D’Amario, 2001 R.I. Super. LEXIS 16, at *4-6 (Jan. 2, 2001).
Additionally, D’Amario filed a “Supplemental Motion to Reduce Sentence”
on August 11, 2000, which was denied on September 22, 2000 after the
court heard argument on the motion. Id.
                               5


    [I]f they make me work one more day, and continue to
    fuck up my sentence computation, I will seek revenge
    on the day of my inevitable discharge against the
    conspirators. As soon as I get off the bus in Providence
    next month or next year, I will kill the judges who
    directed the state police to frame me with those
    nursery rhymes. I may charge after one and break his
    neck with my bare hands, or I might douse myself with
    gasoline and light the match next to a judge, or I may
    get a gun and shoot them all . . . .
      As I said, you must understand how sick I am of
    losing, and that I will not accept this latest conspiracy.
    The co-conspirators are:
      1. R.I. judges
      2. Mass. Judges
      3. DiClerico
      4. [The AUSA in the District of Rhode Island]
      [12 others]
       So the way we left it is that nobody had better push
    me or I’ll explode. ‘Leave me the fuck alone!’ I said, or
    I’ll kill somebody. I also said that I will not do this time
    and plan to beat the judges however I can even if it
    means hanging myself . . . .
      But they have to let me out eventually. I’ve told them
    where we’re at. If they don’t drop these terror tactics
    immediately, I’m dedicated to killing R.I. judges when
    I’m out. I’ll put the conspirators on the front page. . . .
    I dare anybody to push me. You can accept all they’ve
    done to me in this hoax case. I won’t. If I’m in S.H.U.
    when this arrives, I expect you to call these [ ] and
    demand my release. They have no authority over me
    anymore. Arthur.
App. at 28, 106-116.
  After consulting with the Rhode Island Supreme Court’s
Office of Disciplinary Counsel, Roy disclosed the contents of
D’Amario’s letter to the Federal Bureau of Investigation.
App. at 117-119. A federal grand jury in Newark, New
Jersey, indicted D’Amario for threatening to assault and
murder a federal judge, in violation of 18 U.S.C.
                             6


§ 115(a)(1)(B), and the case was assigned to the Honorable
Joseph E. Irenas.
   In the meantime, D’Amario again challenged the BOP’s
decision by filing a second habeas petition under 28 U.S.C.
§ 2241, this time in the District of New Jersey, and that
case was also assigned to Judge Irenas. Judge Irenas
denied the petition, concluding that
    although Judge DiClerico recommended that petitioner
    be credit[ed] against his federal sentence for time
    served since March 3, 1999, the BOP properly
    calculated petitioner’s sentence pursuant to § 3585(b).
    Under the statute, no prior custody may be credited to
    a prisoner’s sentence if he has received credit for the
    same time period on another sentence. Thus, because
    D’Amario received credit from February 22, 1999 to
    March 13, 2000, toward his state sentence, the BOP
    appropriately concluded that the same time period
    could not be credited against the federal sentence.
App. at 758.4
   D’Amario’s trial on the threat charge began on November
29, 2001, and on December 4, 2001, a jury returned a
guilty verdict. On January 18, 2002, the District Court
denied D’Amario’s motion for release pending sentencing,
finding that D’Amario had failed to demonstrate that he
was not a danger to the community. On February 26, 2002,
however, the District Court reversed course and granted
bail pending sentencing. In the course of the hearing, the
Court referred to the issue of the BOP’s treatment of the
time that D’Amario had spent in custody prior to
sentencing on the federal felon-in-possession charge.
Among other things, the Court mentioned that “[t]here
might be a downward departure issue,” and recommended
that defense counsel “give some thought to that.” App. at
454. The government appealed the order releasing the
defendant, and a panel of this court vacated that order and
ordered that D’Amario be detained pending sentencing.

4. The Court also denied D’Amario’s   subsequent   requests   for
reconsideration and other relief.
                                  7


   On April 5, 2002, the District Court commenced a
sentencing hearing, and D’Amario’s counsel, picking up on
the Court’s suggestion, moved for a downward departure
from the applicable Sentencing Guidelines range in order to
“rectify” the BOP’s decision regarding credit for the time
that D’Amario had spent in custody prior to sentencing on
the federal felon-in-possession charge. App. at 555. Defense
counsel stated: “It’s clear to me that the VOP [violation of
probation] credit decision is what led to his writing this
letter.” Id.
  During continued sentencing proceedings on April 9,
2002, the District Court determined that under the
Sentencing Guidelines D’Amario’s Total Offense Level was
15.5 Combining this Offense Level with D’Amario’s Criminal
History of Category V, the District Court determined that
the defendant’s Guidelines range was 37 to 46 months of
imprisonment. However, the District Court departed
downward three offense levels to a range of 27 to 33
months of imprisonment and imposed a sentence of 27
months followed by three years’ supervised release.
  Holding that D’Amario’s case fell outside the “heartland”
of cases under the applicable guideline, the District Court
provided an oral explanation of the basis for its decision.
We note five points that the Court made. First, the Court
commented that it was difficult to identify the heartland of
the offense in this case because the Statutory Index lists
numerous guidelines that may apply to a violation of 18
U.S.C. § 115(a) and because it appeared to the Court that
there were not many prosecutions under this provision.
App. at 484-85.

5. Guideline 1B1.2 instructs the sentencing court to refer to the
Statutory Index (Appendix A) to determine the appropriate guideline for
the offense of conviction. Appendix A lists several Guidelines possibly
applicable in the instance of a violation of 18 U.S.C. § 115(a). The
District Court found U.S.S.G. § 2A6.1, Threatening or Harassing
Communications, applicable to the offense conduct in the instant case
and therefore determined that D’Amario’s Base Offense Level was 12.
App. at 483. Additionally, the court ruled that a three-level upward
adjustment for “Official Victim” status under U.S.S.G. § 3A1.2 was
applicable.
                                  8


   Second, the Court implied that D’Amario was not
particularly dangerous. The Court observed that D’Amario’s
letter was “flaky,” App. 588, and added:
     [T]his is a flaky case. It’s flaky. I don’t care what
     anybody says. . . . I don’t blame the Marshals for
     taking it seriously. . . . I don’t even blame anybody for
     being particularly frightened. It’s a letter that is
     designed to frighten, and it does frighten. It doesn’t
     change my view that the whole situation is just flaky.
Id. at 590. The Court commented that it had seen
D’Amario’s “ability to get angry and ferocious at judicial
system” but had not seen “anything that’s suggesting he’s
a mass murderer.” Id. at 591.
  Third, the Court implied that D’Amario may not have
even violated 18 U.S.C. § 115(a)(1)(B). The Court stated
that, while it was not impugning the jury’s verdict, the
Court had read the letter “about 300 times” and was “fairly
sure” when “you parse it” that the only persons whom
D’Amario actually threatened to kill were the Rhode Island
state judges, not Judge DiClerico. App. at 589-91.
  Fourth, the Court stated its belief that the sentencing
expectations of both Judge DiClerico and Judge Clifton had
been frustrated. The New Jersey District Court Judge
stated that, in light of the information then before him,6 it
was clear that Judges DiClerico and Clifton wanted
D’Amario’s federal and state sentences to run concurrently
but that these expectations were not realized because
neither the state judge nor D’Amario’s attorney had
understood that, if he was given credit against his state
sentence for the time that he had already spent in custody,
18 U.S.C. § 3585(b) would not permit that time to be
credited against his federal sentence.
  Fifth, the Court implied that D’Amario’s frustration over
this situation, while not a justification for his letter, was
nevertheless a factor to consider. App. at 597-98. In sum,
the Court stated that “the situation of a prisoner who writes

6. Apparently, the New Jersey District Court did not have access to the
Rhode Island Superior Court transcript when it denied D’Amario’s
habeas petition. App. at 701.
                              9


this kind of off-the-wall letter, threatening crazy letter, in
the situation where he’s being held in jail and on the face
of the two judges who said he should be set free, is the
basis for a downward departure.” Id. at 592-598. Both
D’Amario and the government appealed from the final
judgment in the criminal case.
  In the meantime, however, a development in state court
in Rhode Island affected the calculation of D’Amario’s
sentence. D’Amario requested, and the Rhode Island state
court granted, a six-month reduction of his probationary
sentence on an unrelated 1996 Rhode Island conviction.
This relief had the effect of decreasing D’Amario’s Criminal
History Category from V to IV. See U.S.S.G. § 4A1.2(c)(1).
Citing the sentence reduction granted by the Rhode Island
state court, D’Amario filed a motion under 28 U.S.C. § 2255
seeking that his 18 U.S.C. § 11(a)(1)(B) conviction be
vacated, but the New Jersey District Court Judge denied
that motion, and D’Amario appealed.
  While the appeals from the judgment in the criminal case
and the denial of the Section 2255 motion were pending in
our Court, the parties filed a joint motion for a limited
remand in the Section 2255 appeal, and we granted the
motion so that the District Court could correct an
“uncontested claim of error.” App. 689. The District Court
then reduced D’Amario’s Criminal History Category from V
to IV, and the Court again granted a three-level downward
departure. The Court re-sentenced D’Amario to a 21-
month term of imprisonment, a sentence at the bottom of
the applicable range of 21 to 27 months. App. at 737.
During the new sentencing hearing, the District Court
again attempted to explain its three-level downward
departure. The Court stated that, by virtue of the
departure, D’Amario
    ha[d] gotten almost all he would have gotten had the
    habeas corpus been granted in the first instance. Now,
    I confess—you know, it’s hard to put Humpty-Dumpty
    back together again. I think Mr. D’Amario—if he [was]
    let out in June [of 2000], this crime never would have
    happened, he never would have had to write the letter.
    You can’t—you can’t kind of view it in the abstract. It’s
                             10


    not like he went out, robbed a bank, something totally
    unrelated to what was going on here.
      But be that as it may, at least in terms of credits, he
    has gotten the credit, or almost all of the credit . . . .
    So, he’s come—he hasn’t gotten it all, he’s come very,
    very close to getting most of it.
Id. at 704. The government then took this appeal.

                             II.
  The standards for sentencing departures are familiar. The
Sentencing Reform Act, 18 U.S.C. § 3353(b), requires a
judge to impose a sentence within the pertinent guideline
range unless the judge “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.”
In Koon v. United States, 518 U.S. 83, 93-96 (1996), the
Supreme Court explained that factors relevant to
departures are divided into four categories: prohibited,
discouraged, unmentioned, and encouraged. Unless a factor
is categorically prohibited, Koon held, a sentencing court
must determine whether the particular case at hand falls
outside the “heartland” of cases covered by the relevant
guideline. Id. The Court wrote:
    If the special factor is a forbidden factor, the
    sentencing court cannot use it as a basis for departure.
    If the special factor is an encouraged factor, the court
    is authorized to depart if the applicable Guideline does
    not already take it into account. If the special factor is
    a discouraged factor, or an encouraged factor already
    taken into account by the applicable 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. If a factor is unmentioned in the Guidelines,
    the court must, after considering the “structure and
    theory of both relevant individual guidelines and the
    Guidelines taken as a whole,” ibid., decide whether it is
    sufficient to take the case out of the Guideline’s
                             11


    heartland. The court must bear in mind the
    Commission’s expectation that departures based on
    grounds not mentioned in the Guidelines will be
    “highly infrequent.” 1995 U.S.S.G. ch. 1, pt. A, p. 6.
518 U.S. at 95-96 (citation omitted)
  We have interpreted Koon as calling for a four-step
inquiry:
    First, we determine if the factor relied upon in the case
    makes it special or unusual, taking it outside the
    heartland. Second, we determine whether departures
    on such factors have been forbidden by the
    Commission. Third, we determine whether the
    Commission had encouraged departures based on such
    factors. Fourth, we determine whether the Commission
    has discouraged departures based on such factors.
United States v. Yeaman, 248 F.3d 223, 231 (3d Cir. 2001).
  Under Koon, we do not defer to a district court’s decision
as to “whether a factor is a permissible basis for departure
under any circumstances.” Koon, 518 U.S. at 100. However,
Koon instructs us otherwise to apply an abuse-of-discretion
standard. Id. at 98.
   After the sentence in the present case was imposed and
this appeal was fully briefed, Congress amended 18 U.S.C.
§ 3742(e) and directed us to “review de novo the district
court’s application of the guidelines to the facts.” The
government has argued that this provision applies to
appeals pending when it took effect and is thus applicable
here. See United States v. Thurston, 2003 WL 21782339
2003 U.S. App. LEXIS 155161 (1st Cir. Aug. 4, 2003);
United States v. Aguilar-Lopez, 329 F.3d 960, 962-63 (8th
Cir. 2003). However, because this question has not been
fully briefed and because we need not resolve this question
in order to decide the present appeal, we do not do so. We
assume for the sake of argument that the standards of
review set out in Koon still govern.

                             III.
  The District Court did not provide a single, compact
explanation of the specific reason for its departure decision.
                                  12


Instead, as noted, the Court’s discursive oral comments
touched on many matters, and it is not entirely clear which
of the matters discussed were regarded by the Court as
grounds for departure. On appeal, D’Amario first argues
that “[t]he District Court based the downward departure on
a number of circumstances,” Appellee’s Br. at 30, but
D’Amario later states that “there were two factors that led
to the Court’s decision to depart”: (1) the BOP’s decision
regarding credit against his felon-in-possession sentence
and (2) the fact that “the denial of credit by BOP was the
direct ‘causation’ of the offense of threatening a federal
judicial official.” Appellee’s Br. at 33. We agree that these
latter factors seem to have been the most important, but we
will address all of the previously noted points made by the
District Court during its oral comments.
  Paucity of prosecutions under 18 U.S.C. § 115. The
District Court commented that it was “hard figuring out the
heartland” of the offense in this case because the Statutory
Index lists numerous guidelines that may apply to a
violation of § 115(a) and because it appeared to the Court
that “this is not a frequently prosecuted crime.” App. 484-
85. Many pages later in the transcript of the sentencing
proceeding, the Court commented:
     The question I have is this case out of the heartland,
     and I believe that at least one respect it is out of the
     heartland. For one thing, 115, I’m [not]7 sure I know
     what the heartland is.
Id. at 591. On appeal, D’Amario lists as a factor justifying
departure “the fact that the District Court had not seen a
large number of Section 115(a)(1)(B) ‘threat’ prosecutions,
and that there was not a lot of case law nor practical
experience to guide the Court.” Appellee’s Br. at 30.
  The departure in this case cannot be sustained on these
grounds. First, it is irrelevant for present purposes that
there is not one single guideline for all § 115(a) cases. At
most, the number of potentially applicable guidelines listed
in the Statutory Appendix might complicate the selection of

7. Although the important word “not” does not appear in the transcript,
we take it that this was a transcription error or slip of the tongue.
                                   13


the correct guideline. Once the most appropriate guideline
is identified, however, the question with respect to any
departure is whether the case falls within the heartland of
the guideline selected, and the other guidelines not selected
have no bearing on that determination.8
   Second, to the extent that the District Court suggested
that a departure was warranted because of the paucity of
prosecutions under 18 U.S.C. § 115(a)(1)(B) for threatening
a federal official, the Court committed both legal and
factual error. A guideline need not apply to a great number
of cases in order to have a “heartland,” and the government
has cited a sufficient number of reported cases involving
threats to kill federal officials to convince us that, if the
District Court found to the contrary, it erred under any
standard of review.
   D’Amario does not pose a risk of committing mass murder.
As noted, the District Court opined that in its view
D’Amario is “flaky” but not likely actually to carry out his
threat to kill the long list of “conspirators” set out in his
letter. However, the absence of evidence that a defendant is
likely to carry out a threat is a factor already taken into
account in U.S.S.G. § 2A6.1. Under U.S.S.G. § 2A6.1(b)(1),
a court is instructed to increase the offense level by six “[i]f
the offense involved any conduct evidencing an intent to
carry out such threat.” Thus, the base offense level is
meant to apply to cases — such as the present one (as the
District Court viewed it) — in which there is no evidence at
all that the defendant intended to carry out his or her

8. Moreover, we see nothing confusing about the listing in the Statutory
Appendix for 18 U.S.C. § 115(a). That provision covers a broad range of
criminal conduct, including murder, kidnaping, and assault, as well as
attempts, conspiracies, and threats to commit those offenses. The
Statutory Index therefore lists three guidelines for homicide, three
guidelines for assault, one for kidnaping, one for threatening or
harassing communications, and one for inchoate offenses (attempt,
solicitation, and conspiracy). Since the present case involved the sending
of a threatening letter and plainly did not involve a homicide, assault,
kidnaping, or an inchoate offense, the selection of the most pertinent
guideline — U.S.S.G. 2A6.1 (Threatening or Harassing Communication)
— is straightforward, and this is the guideline identified by the District
Court.
                             14


threat. Threatening communications are made criminal, not
just because they may be harbingers of violence, but
because they are harmful in themselves in many ways.
  Whether a departure might be granted in a case in which
the record makes it unusually clear that the defendant
posed no threat is a question that we need not address, for
this is not such a case. The defendant’s long criminal
record includes firearms offenses. At trial, the government
introduced evidence that the defendant was interested in
acquiring guns after release from prison. App. at 123-25,
218. Even under an abuse-of-discretion standard, a
departure on this ground cannot be upheld.
  D’Amario did not actually threaten to kill Judge DiClerico.
After reading the defendant’s letter “about three hundred
times” and “pars[ing] it,” the District Court came to the
conclusion that the letter actually threatened to kill only
the Rhode Island state judges. App. 589-90. As to Judge
DiClerico and the others listed in the letter as “co-
conspirators,” the District Court concluded, D’Amario
merely threatened to “embarrass them on the front page of
the paper.” Id. at 590. The departure clearly cannot be
justified on this ground.
   The indictment charged D’Amario under 18 U.S.C.
§ 115(a)(1)(B) with threatening to assault and murder a
federal judge. In order to convict, the jury had to find
beyond a reasonable doubt that D’Amario threatened to kill
Judge DiClerico, not the Rhode Island state judges.
D’Amario’s letter strongly supports that verdict. The letter
uses the term “kill,” threatens “revenge . . . against the
conspirators,” and lists “DiClerico” as one of the co-
conspirators.
   Applying the four-step procedure set out in Yeaman, we
hold that a departure based on the weakness of the
evidence that the defendant threatened Judge DiClerico
fails at the first step — requiring that “the factor relied
upon in the case makes it special or unusual, taking it
outside the heartland.” 249 F.3d at 231. To the extent that
the District Court found that the evidence in this case was
exceptionally weak, the Court abused its discretion. On the
contrary, the evidence was strong. We further note that we
                             15


have held that a departure on the ground that the District
Court “doubts the veracity of government witnesses and the
guilty verdict they support” is “categorically inappropriate.”
United States v. Haut, 107 F.3d 213, 219 (3d Cir. 1997).
The logic of Haut would appear to dictate a similar
conclusion here.
   D’Amario spent an “unfair” amount of time in prison on
his prior federal and state convictions in Rhode Island. It
appears that a principal basis for the downward departure
was to correct a perceived inequity regarding D’Amario’s
prior federal and state sentences in Rhode Island —
specifically, what the District Court viewed as the
frustration of the sentencing expectations of Judges
DiClerico and Clifton. As noted, it seems that Judge
Irenas’s objective was to make sure that the total amount
of time that D’Amario spent in prison on the Rhode Island
offenses (the federal felon-in-possession offense and the
state violation-of-probation charge) plus the District of New
Jersey sentence for threatening to kill Judge DiClerico
roughly equaled the amount of time that D’Amario would
have spent in prison on those offenses had his time in pre-
sentencing custody in Rhode Island been credited against
the felon-in-possession sentence. The sentencing judge
commented that the downward departure gave D’Amario
“almost all he would have gotten had the habeas been
granted in the first instance.” App. at 704. The Court also
analogized D’Amario to a person who is “falsely
imprisoned.” Id. at 659. To put the point succinctly, the
Court seems to have based the downward departure in
large part on the circumstance that D’Amario had not been
treated fairly (in the Court’s judgment) with respect to the
amount of time that he was required to serve on prior
sentences.
  If it were not for Koon, we would be inclined to hold that
a defendant’s having had to serve an “unfair” amount of
time in prison on a prior conviction is a prohibited factor
for purposes of departure. Permitting sentencing judges to
review the fairness of prior sentences would unduly
complicate sentencing. It is noteworthy that a prior
conviction generally cannot be collaterally attacked in
connection with the determination of a defendant’s
                                  16


Criminal History Category. U.S.S.G. § 4A1.2, Application
Note 6. Cf. Custis v. United States, 511 U.S. 485, 496-97
(1994). Permitting sentencing judges to review the fairness
of prior periods of incarceration would also contravene a
major objective of the pre-Sentencing Reform Act, viz.,
precluding individual District Judges from implementing
their own sentencing “philosophies.” In this case, for
instance, the District Court’s decision was based on the
reasonable (but hardly undisputed)9 view that the
expectations of sentencing judges as to the amount of time
that a defendant should spend behind bars should prevail
and that any other result is unfair. If a departure is allowed
to bring a defendant’s prior periods of incarceration into
conformity with that philosophy, may a judge award a
downward departure because the judge thinks that the
defendant’s sentence in a prior case (under, for example, a
harsh recidivist statute or a drug statute with a high
mandatory minimum sentence) was too long? May a judge
award an upward departure to compensate for a prior
sentence that the judge thinks was too short or for what
the judge views as an unwarranted parole decision in a
previous case?
  In light of Koon, however, we do not hold that a
defendant’s having previously served an “unfair” sentence is
a forbidden factor. Koon states that “a federal court’s
examination of whether a factor can ever be an appropriate
basis for departure is limited to determining whether the
Commission has proscribed as a categorical matter,
consideration of the factor.” 518 U.S. at 108.
  For present purposes, we will assume that a defendant’s
having spent an “unfair” amount of time in prison on a
prior conviction is merely, as D’Amario argues, an
unmentioned factor. Koon tells us to “bear in mind the
Commission’s expectation that departures based on
grounds not mentioned in the Guidelines will be ‘highly

9. There are reasonable sentencing schemes — such as indeterminate
sentencing — that reject that view. See also United States v. Addonizio,
442 U.S. 178 (1979) (sentence may not be collaterally attacked on
ground sentencing judge’s expectations regarding length of actual
incarceration were frustrated).
                             17


infrequent.’ ” 518 U.S. at 96 (quoting 1995 U.S.S.G. ch. 1,
pt. A, p. 6). In this case, we hold that the District Court
abused its discretion in concluding that this factor is
present to such a degree that it “take[s] the case out of the
Guideline’s heartland.” Koon, 518 U.S. at 96.
  It is common for defendants who have previously served
time in prison to have at least colorable complaints about
the length of a prior sentence, a parole decision, a decision
on good-time credits, or some other decision that affected
the amount of time spent in prison. The great sentencing
disparities that prevailed before the advent of the
Sentencing Reform Act show that there is much room for
reasonable debate about what is a “fair” sentence in any
particular case, and thus it is quite common for a
previously incarcerated defendant to be able to make a
plausible argument that his or her prior period of
confinement was “unfair.” Nothing about the present case
makes it so exceptional in this regard as to justify a
downward departure.
   Indeed, the District Court itself commented several times
during the sentencing proceedings that the precise
situation at issue here with regard to D’Amario’s felon-in-
possession and violation of probation sentences is one that
recurs. During the hearing on April 5, 2000, for instance,
the Court stated that “unfortunately, it’s the same scenario
that has occurred over and over again,” the “very problem
that in this case and many other cases that I’ve had, I
think many cases around the country.” App. at 539, 541.
We hold that the District Court did not properly exercise its
discretion in concluding that the events surrounding
D’Amario’s prior state and federal sentences in Rhode
Island took the case outside the Guidelines.
  D’Amario was provoked to write the threatening letter
because he was kept in prison longer than was “fair.” We
reach a similar conclusion regarding this final factor. It is
common for persons who threaten federal officials to feel
that they have grievances against the person threatened or
against the government. Assuming for the sake of argument
that a downward departure based on a defendant’s having
a colorable complaint is not categorically prohibited in a
case involving a threat to kill, there is certainly nothing
                              18


sufficiently atypical about this case to justify a downward
departure on that ground. If the District Court’s
suppositions about the intentions of the federal and state
judges in Rhode Island are correct, D’Amario spent about a
year longer in prison than he might have if the state judge
had been more skillful in designing the state sentence.
Without in any way minimizing the significance of a year in
prison, we are convinced that this grievance does not even
come close to the level that would be needed to render this
case atypical in the sense relevant here. The District
Court’s contrary conclusion is not consistent with a proper
exercise of discretion.

                              IV.
  For these reasons, we vacate the sentence imposed by the
District Court and remand for the sole purpose of imposing
a sentence within the range previously found by the District
Court to be applicable, i.e., 30 to 37 months’ imprisonment.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
