
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1376                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                              STEVEN M. ROSTOFF, ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                              _________________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Selya and Stahl, Circuit Judges.                                            ______________                              _________________________               Peter A. Mullin, Assistant United States Attorney, with whom               _______________          Donald K. Stern, United States Attorney, and Jonathan L. Kotlier,          _______________                              ___________________          Assistant United  States Attorney, were  on brief for  the United          States.               Roger A.  Cox for defendant  Steven M.  Rostoff; Michael  J.               _____________                                    ___________          Traft,  with whom  Carney &  Bassil was  on brief,  for defendant          _____              ________________          David Rostoff; Erica M. Foster, with whom Foster and Peterson was                         _______________            ___________________          on  brief,  for defendant  James  Harris;  Thomas M.  Hoopes  for                                                     _________________          defendant Dolores DiCologero; and  William A. Brown for defendant                                             ________________          Paul J. Bonaiuto.                              _________________________                                    April 24, 1995                              _________________________                    SELYA, Circuit Judge.  In this case, the district court                    SELYA, Circuit Judge.                           _____________          departed downward from the guideline sentencing range (GSR) as to          each of five defendants on the theory that the harm attributed to          them, measured by  the amount  of loss sustained  by the  victim,          overstated  the seriousness of  the offense  of conviction.   The          government now asks  us to  evaluate both the  lawfulness of  the          downward departures and the propriety of the court's role-in-the-          offense adjustments for two defendants, David and Steven Rostoff.          We uphold  the sentences  of all  defendants except  the Rostoffs          (who  must   be  resentenced  as  a  result   of  erroneous  role          determinations).          I.  BACKGROUND          I.  BACKGROUND                    A federal  grand jury  indicted  the brothers  Rostoff,          together  with  James Harris,  Dolores  DiCologero,  and Paul  J.          Bonaiuto, on  charges, inter alia, of conspiracy, bank fraud, and                                 _____ ____          the making of false statements.  See 18 U.S.C.     371, 1344, and                                           ___          1044.   These charges stemmed  from a failed  foray into  the New          England  condominium market   a market that rose to giddy heights          in the mid-to-late-1980s and then plunged precipitously.                    The   conspiracy  count  constituted  the  hub  of  the          indictment.   In it, the  grand jury charged  that, from December          1985  to  February 1989,  the  defendants, aided  and  abetted by          others,  fraudulently  induced  a  federally   insured  financial          institution, the  Bank for Savings  (the bank), to  grant several          hundred  loans, totalling  in excess  of $30,000,000,  to persons          purchasing condominium units from David Rostoff, Steven  Rostoff,                                          2          and  James  Harris (collectively,  "the  Rostoff  group" or  "the          developers").   Like  spokes running  from the  hub, 43  of these          loans  gave  rise  to 86  "mirror  image"  bank  fraud and  false          statement counts against various defendants.                    The  trial jury  plausibly  could have  found that  the          scheme tracked the following script.  The bank had  a firm policy          of refusing to grant first mortgage loans in excess of 80% of the          lower of the  sale price  or the appraised  value of  residential          real  estate; and, when mortgages were written on that basis, the          bank  ordinarily required the balance of the purchase price to be          paid in  cash by the borrower.  In 1986, bank officials, eager to          maintain a lucrative working relationship with the Rostoff group,          bent the rules.   The  bankers allowed the  developers to  assist          common customers (i.e., persons  who bought condominiums from the                            ____          Rostoff  group and financed the purchases through the bank) in an          uncommon  way:  by taking back second mortgages to circumvent the          cash  down-payment  requirement.   The  bankers  conditioned this          concession on the express understanding that the second mortgages          would be enforced, and that each  purchaser would make at least a          10% down payment from his or her own capital.                    This arrangement  proved too  tame for the  developers'          purposes.     To  facilitate   sales,  they  cooked   the  books,          surreptitiously  telling  selected  buyers that  they  would  not          enforce the second mortgages,  or, alternatively, that they would          not demand interest payments on particular second mortgages until          resale  of the  encumbered condominiums.   More  importantly, the                                          3          developers  set out  to subvert  the down-payment  requirement by          orchestrating  a paper  shuffle  designed to  create the  (false)          impression  that the  buyers were  putting 10%  down in  order to          acquire the properties, when  they were not.  In  many instances,          the  developers accomplished  this  sleight of  hand by  offering          customers a 10% discount from the stated purchase price.   When a          customer  agreed  to buy  at  the reduced  price,  the developers          submitted  documents  to  the  bank that  overstated  the  actual          purchase  price by 10% and  treated the negotiated  discount as a          down payment.  This flim-flam took on added significance  because          the bank underwrote  the loans on  the basis  of an 80%  loan-to-          value (LTV) ratio, using purchase price as a principal measure of          value.  Thus, an inflated purchase price often caused the bank to          approve  a  higher  first  mortgage  loan  than would  have  been          forthcoming  had it known the  true purchase price.   In the end,          many buyers acquired condominiums without making any down payment          or other cash expenditure (except for closing costs).                    The  bank's closing  attorney, defendant  Bonaiuto, and          the  manager   of  the  bank's   mortgage  department,  defendant          DiCologero,  knowingly participated in fabricating this tissue of          lies,  half-truths, and  evasions.   Between  September 1986  and          February  1989, the bank engaged  Bonaiuto to close  at least 240          loans  to the developers' customers.  Although no fewer than five          borrowers  testified  at trial  that  they  asked Bonaiuto  about          apocryphal deposits shown on their settlement  sheets, he did not                                          4          notify the bank  of any discrepancies.1   DiCologero also  worked          closely   with   the   developers,   handling    the   day-to-day          administration  of the  loan approval  process.   The prosecution          proved   her  awareness   of  the   ongoing  scheme   largely  by          circumstantial evidence.2                    Following  a lengthy  trial, a  jury found each  of the          five defendants guilty  of conspiracy  to defraud the  bank.   In          addition, the jury  found Steven Rostoff guilty on a  total of 72          "mirror image" counts  of bank fraud and  making false statements          (representing 36  transactions), David Rostoff guilty  on 32 such          counts (representing  16 transactions), Harris guilty  on 52 such          counts (representing 26 transactions), Bonaiuto guilty on 10 such          counts (representing five transactions), and DiCologero guilty on          two such counts (representing one transaction).                    On  January 29,  1993,  the district  court convened  a                                        ____________________               1We  note two  related  facts.   First, after  investigators          discovered  the  fraud, Bonaiuto  falsely  asserted  that he  had          queried  borrowers about  the  deposits shown  on the  settlement          sheets, and  that they  had assured  him that  they had  made the          indicated down  payments.  Second, Bonaiuto also acted as closing          attorney for the bank in connection with his own purchase  of two          condominium units from the  Rostoff group.  On each  occasion, he          submitted a  settlement sheet  to the bank  showing  that  he had          tendered a  10% down payment when,  in fact, he had  made no down          payment at all.               2One  vignette is particularly  telling.  On  July 23, 1987,          DiCologero's  husband closed a mortgage loan at the bank in order          to  finance his purchase of a condominium from the Rostoff group.          The settlement statement falsely  indicated that a $7,700 deposit          had been made when,  in fact, DiCologero's husband  had purchased          the  condominium  with  no  cash  down  payment  (advancing  only          $1,663.40  in closing costs).   The record  shows that DiCologero          shepherded the loan through the bank's approval process.                                          5          disposition hearing.3   By then, the  bank had become  insolvent,          and the  Federal Deposit Insurance Corporation  (FDIC) had become          the  receiver.   The  court determined  that  the FDIC  sustained          losses   due    to    the   defendants'    activities   in    the          $2,000,000 $5,000,000  range.    The  court  then  calculated the          offense level of all defendants except DiCologero on the basis of          this loss  computation, see U.S.S.G.  2F1.1(b)(1)(K) (providing a                                  ___          10-level enhancement  for fraud  crimes involving losses  of more          than $2,000,000, up to and  including $5,000,000), arriving at an          adjusted  offense level (OL) of  20 for the  Rostoff brothers and          Bonaiuto, and 18 for Harris.  The court attributed slightly under          $1,000,000  in  losses to  DiCologero  and,  after other  interim          adjustments,  settled on an OL of 18.   The court factored in the          defendants' criminal history scores   all were  first offenders            and arrived at a GSR of 33-41 months at OL-20 and a GSR  of 27-33          months at OL-18.   Finding,  however, that in  each instance  the          amount  of  loss overstated  the  seriousness  of the  particular                                        ____________________               3The jury convicted the defendants on a count that charged a          conspiracy beginning in  1985 and  continuing into 1989.   It  is          well established that the sentencing guidelines apply to offenses          that straddle the effective  date of the guidelines  (November 1,          1987).  See United States v. David, 940 F.2d 722, 739 (1st Cir.),                  ___ _____________    _____          cert. denied, 502 U.S. 989 (1991).   Even in such cases, however,          _____ ______          the guidelines in effect at the time  of sentencing, not those in          effect  at  the tag  end of  the  offense, ordinarily  control at          sentencing, except where ex post facto concerns loom.  Cf., e.g.,                                   __ ____ _____                 ___  ____          United  States v.  Harotunian, 920 F.2d  1040, 1041-42  (1st Cir.          ______________     __________          1990).   The district court, invoking this exception, applied the          November 1987  version of  the guidelines.   No  party questioned          that choice below, and no party asks us to revisit  it on appeal.          Since we follow the district court's lead, all  references herein          are to  the  November  1987  edition  of  the  guidelines  unless          otherwise specifically indicated.                                          6          defendant's  criminality, Judge  Zobel  departed  downward.   She          sentenced David  and Steven  Rostoff to  serve 15-month  terms of          immurement;  sentenced  Harris  to  a   nine-month  prison  term;          sentenced Bonaiuto to  two years probation,  six months of  which          was to be served  in a community treatment center;  and sentenced          DiCologero  to two  years  of straight  probation.   This  appeal          followed.          II.  THE DOWNWARD DEPARTURES          II.  THE DOWNWARD DEPARTURES                    In sentencing under the  guidelines, departures are the          exception  rather  than the  rule.   See  United States  v. Diaz-                                               ___  _____________     _____          Villafane, 874 F.2d 43, 52 (1st Cir.), cert. denied, 493 U.S. 862          _________                              _____ ______          (1989).  When a district court nonetheless departs, and an appeal          eventuates,  we ask three general  questions:  (1)  Is the reason          that  the  sentencing court  gave for  departing  of a  type that          lawfully can ground a  departure in an appropriate case?   (2) Is          the  court's   factfinding  in   respect  to  the   cited  reason          sustainable on whole-record  review?   (3) Is the  degree of  the          departure reasonable?  See United States v. Mendez-Colon, 15 F.3d                                 ___ _____________    ____________          188, 189 (1st Cir. 1994); United  States v. Rivera, 994 F.2d 942,                                    ______________    ______          950-52  (1st Cir.  1993);  Diaz-Villafane, 874  F.2d  at 49.    A                                     ______________          departure  passes muster  only  if all  three inquiries  yield an          affirmative response.                    In  this case,  the government  asserts that  the lower          court erred at each step along  the departure path.  We trace the          contours  of  the court's  decision  and then  address  the three                                          7          relevant questions.4                      A.  The Anatomy of the Departure Decision.                      A.  The Anatomy of the Departure Decision.                          _____________________________________                    In fraud cases controlled by the guidelines, the amount          of the victims' monetary loss (actual or intended) is a proxy for          the seriousness of the  offense, and, thus, a key  determinant of          the severity of the perpetrator's sentence.  See United States v.                                                       ___ _____________          Lilly,  13 F.3d  15, 17,  19 (1st  Cir.  1994); United  States v.          _____                                           ______________          Tardiff, 969  F.2d  1283, 1285  (1st  Cir. 1992).    Recognizing,          _______          however,  that no proxy is perfect, the applicable edition of the          sentencing guidelines cautions that:                    In a  few  instances, the  total dollar  loss                    that results from  the offense may  overstate                    its seriousness.   Such situations  typically                    occur when a misrepresentation is  of limited                    materiality or  is not the sole  cause of the                    loss .  . .   In  such instances,  a downward                    departure may be warranted.          U.S.S.G.  2F1.1, comment. (n.11) (Nov. 1987).                    The  defendants in  this  case all  moved for  downward          departures  based on  application note  11.   The  district court          accommodated their  requests, linking its largesse  to a linchpin          finding  that  numerous  factors,  apart  from  the   defendants'          conduct,  inflated the losses sustained  by the FDIC.   The court          premised  its linchpin  finding  primarily  on  three  subsidiary          findings.  (1)  The court  remarked the bank's  gadarene rush  to          participate in  the condominium  boom despite the  obvious risks.                                        ____________________               4Inasmuch  as the  Rostoffs  must be  resentenced for  other          reasons,  see infra Part III,  we limit our  departure inquiry to                    ___ _____          the  sentences imposed  upon  Harris, DiCologero,  and  Bonaiuto,          respectively.                                          8          To  the court's way of thinking, this overeagerness was driven by          greed    after all, the bank based incentive compensation for top          officials on loan production  and fomented a "lend at  all costs"          mentality  that led  senior managers  to condone  the defendants'          shenanigans.   The court expressed great  skepticism about senior          management's  professed  lack  of  knowledge  or  responsibility,          concluding  that,  at  the   very  least,  management  had  acted          negligently, particularly in authorizing  loan approvals, and had          bent  its  policies grotesquely  to  retain  the Rostoff  group's          business.   In the  court's view, these  shortcomings contributed          mightily to the  extent of the  eventual losses.   (2) Next,  the          court found that the buyers were neither dupes nor victims in the          traditional sense.  To  the contrary, the court thought  they had          become  willing participants  in the  defendants' scheme.   Their          cupidity  drove up  prices in  the condominium market  and, thus,          contributed substantially to the amount of money eventually lost.          (3)  Finally, the court  observed that economic  forces not under          the control  of, or  precipitated by, the  defendants, especially          the sudden, unforeseen  collapse of the  New England real  estate          market    a collapse  that decimated  the demand  for residential          condominiums   increased the magnitude of the losses.                    The  district court  believed  that  these factors,  in          combination,  contributed so directly  to the extent  of the loss          that  the defendants  were entitled  to a substantial  measure of          relief.   In  the sections  that follow,  we test  the legal  and          factual  sufficiency of the  court's stated ground.   Finally, we                                          9          examine the  reasonableness of  the actual departures  insofar as          they affect Harris, DiCologero, and Bonaiuto.                          B.  Step One:  The Court's Reason.                          B.  Step One:  The Court's Reason.                              _____________________________                    While the government assails the departure  decision on          all  available fronts, its fundamental point is that, as a matter          of law, the guidelines simply do not authorize departures under a          "multiple loss causation" theory.  Since this assertion questions          whether the departure-justifying reason  cited by the court below          is  of a  kind  that  the  guidelines,  in  principle,  permit  a          sentencing court  to embrace for that purpose,  we afford plenary          review.  See Rivera, 994 F.2d at 951; Diaz-Villafane, 874 F.2d at                   ___ ______                   ______________          49.                    In evaluating multiple  loss causation as  a departure-          justifying circumstance, we do not write on a  pristine page.  In          United  States  v. Gregorio,  956 F.2d  341  (1st Cir.  1992), we          ______________     ________          approved the manner in which the district court, acting under the          general fraud guideline, U.S.S.G.  2F1.1, structured its downward          departure  to "reflect[] `multiple  causation' for  victim loss."          Id. at 344.  Although the "sufficiency of the basis for departing          ___          in  response to  multiple causation  of victim  loss" was  not at          issue  on that occasion, id. at 347 n.10, we stated unambiguously                                   ___          that  "`multiple  causation' of  victim  loss  is a  `Commission-          identified'  circumstance in  which a  downward departure  may be                       ____________          warranted."   Id. at 347.   We do  not believe that  these words,                        ___          even if technically dictum, can be read other than as an outright          endorsement of multiple loss causation as a permissible basis for                                          10          departing downward, and, indeed, as a departure-justifying reason          that the guidelines encourage.  See generally Rivera, 994 F.2d at                                          ___ _________ ______          948 (explaining that the guidelines sometimes "offer the district          court,  which   is   considering  whether   to  depart,   special          assistance,   by  specifically  encouraging"   certain  types  of          departures).                    Despite the  plain import  of Gregorio, the  government                                                  ________          maintains  that multiple loss causation is an invalid basis for a          downward departure.  Gregorio  is irrelevant here, the government                               ________          says,  because the Gregorio court had before it the November 1990                             ________          version  of  the  guidelines,  which, like  the  original  (1987)          version, authorized  departures when "the total  dollar loss that          results from  the offense [overstates] its  seriousness," such as          when "a  misrepresentation . .  . is  not the sole  cause of  the          loss."   956  F.2d  at  345  (citing  November  1990  version  of          application  note  11).5   In  the  government's  view, time  has          passed  Gregorio by,  for the  Sentencing Commission  rewrote the                  ________          application notes  to section  2F1.1 effective November  1, 1991,          consolidating several preexisting notes  into a new note 10.   In          the process, the Commission eliminated any reference to "the sole          cause of the loss"  language.6  The government proceeds  to weave                                        ____________________               5The  November  1990  version  of  application  note  11  is          identical to the 1987  version and, thus, controls in  this case.          See supra note 3.          ___ _____               6The new note reads in pertinent part:                    In cases in  which the  loss . .  . does  not                    fully capture the harmfulness and seriousness                    of the  conduct, an  upward departure  may be                                          11          a  tapestry  from several  gossamer  strands  of speculation  and          surmise, hypothesizing  that the Commission, recognizing  that it          had improvidently promulgated  former note  11, acknowledged  the          error  of its ways and junked the original reference.  Using this          hypothesis  as a springboard,  the government  then jumps  to the          conclusion that the Commission, in essaying the revision, tacitly          rejected multiple loss causation as an  appropriate factor in the          departure calculus.                     We  need   not  resolve   the  issue  of   whether  the          Commission,  in  revising the  application  notes in  a  way that          dropped the "sole cause  of the loss" language, intended  to drum          multiple  loss   causation  out   of  the  ranks   of  encouraged          departures.   To avoid ex  post facto difficulties, courts should                                 __  ____ _____          "normally apply [guideline] amendments retroactively only if they          clarify  a guideline,  but  not if  they  substantively change  a          guideline."  United States v. Prezioso, 989 F.2d 52, 53 (1st Cir.                       _____________    ________          1993); accord Isabel v. United States, 980 F.2d 60,  62 (1st Cir.                 ______ ______    _____________          1992).  This rule stymies  the government in this instance.   If,          on  the  one hand,  as  the government  argues,  the Commission's          rewriting of  the  application  notes  bars  downward  departures          premised on multiple loss causation, then that revision cannot be                                        ____________________                    warranted. .  . .   In  a few  instances, the                    loss .  . . may overstate  the seriousness of                    the  offense.   This may occur,  for example,                    where a  defendant attempted to  negotiate an                    instrument that was  so obviously  fraudulent                    that no one would seriously consider honoring                    it.          U.S.S.G.  2F1.1 comment., n.10 (Nov. 1991).                                          12          applied retroactively for doing so would change the substance  of          the  fraud  guideline, U.S.S.G.   2F1.1,  as  that guideline  was          explicated   in  Gregorio.      See  Prezioso,  989  F.2d  at  54                           ________       ___  ________          (explaining  that  a  new  interpretation  of  a  guideline  that          contradicts existing  circuit  precedent "alters  the  guideline"          and, hence,  constitutes a substantive change that can only apply          prospectively).  If, on the other hand, the revision does not bar          downward  departures  for  multiple   loss  causation,  then  the          district  court's selection  of  multiple loss  causation as  its          departure-justifying ground is, under Gregorio, unimpugnable.                                                ________                    Consequently, we hold that, under the original pre-1991          version of the guidelines   the version that controls here    the          district court permissibly singled out multiple loss causation as          a departure-justifying circumstance.7                        C.  Step Two:  The Factual Predicate.                        C.  Step Two:  The Factual Predicate.                            ________________________________                    Since the  lower court  isolated a  conceptually proper          departure-justifying circumstance, the second step  of the review          process looms.   At this stage, we must determine whether, on the          whole  record, the  court supportably could  have found  that the          departure-justifying  circumstance actually  existed.   See Diaz-                                                                  ___ _____                                        ____________________               7The government  also  suggests,  in  what  it  bills  as  a          separate argument,  that the district court  improperly relied on          the  conduct  of the  bank  and  of the  buyers  as  a basis  for          departing.  At bottom, however, this suggestion  is predicated on          the  government's assertion that it  is improper to  focus on any                                                                        ___          causes of the loss apart from  the conduct of the defendants.  As          we  have pointed out, such  a position is  inconsistent with both          the   unambiguous  language  of   the  original  commentary  that          accompanied  section  2F1.1  and  the clear  import  of  existing          circuit precedent.  Hence, the government's "separate" suggestion          adds nothing to its flagship argument.                                          13          Villafane, 874 F.2d at 49.  Because this determination implicates          _________          the court's  factfinding, our standard of  review is deferential.          See id.  (explaining  that  the  findings of  fact  underlying  a          ___ ___          departure decision "may be set aside only for clear error").                    Aside from the defendants' actions, the district  court          identified three factors that contributed to the magnitude of the          loss  in  this  case:   (1)  the  conduct  of  the bank's  senior          management;  (2) the buyers'  esurience; and (3)  the nosedive in          condominium prices.   The  government does not  seriously dispute          either the incidence of these factors or their aggravating effect          upon the amount of  loss.8  Instead, the government  asserts that          the  court clearly erred in finding  an overstatement because the          loss  figures  that  the   court  used  for  sentencing  purposes          represented  only a fraction of  the actual losses  caused by the          defendants' criminal activity.                    This argument will not wash.  Calculating the amount of          loss for purposes  of the  sentencing guidelines is  more an  art          than a science.  Courts  can, and frequently do, deal  with rough                                        ____________________               8At  any rate,  the record  buttresses the  district court's          conclusions.    The  evidence  establishes  that  bank  officials          approved  myriad loans,  totalling millions  of dollars,  with an          abandon  commonly  associated  with  drunken  sailors.    In  the          bargain,  senior  management  routinely  authorized   loans  that          exceeded the bank's LTV ratio, backdated documents, and acted, to          use  the  government's  phrase,  in  an  "incredibly   negligent"          fashion.  The  evidence also  shows that many  of the  purchasers          were sophisticated investors who, enthralled by gimmicks like the          phantom  down-payment  concept, bought  multiple properties.   As          sophisticated investors  surely  should know,  projected  profits          that look too good to be true  often are   and often signify  the          presence  of great  financial hazards.   Finally,  an economist's          affidavit, introduced at sentencing, graphically  illustrates the          extent to which the bottom fell out of the condominium market.                                          14          estimates.  See  United States v. Skrodzki, 9  F.3d 198, 203 (1st                      ___  _____________    ________          Cir. 1993); see also U.S.S.G.  2F1.1, comment., n.8 (stating that                      ___ ____          "the loss need  not be precise," so long as  the court "make[s] a          reasonable estimate  of the  range of  loss, given the  available          information").   Hence, a party dissatisfied  with the sentencing          court's quantification of the amount of loss in a particular case          must  go a  long way to  demonstrate that the  finding is clearly          erroneous.   See Skrodzki, 9  F.3d at  203; Tardiff, 969  F.2d at                       ___ ________                   _______          1288.                    Here, the court computed the amount of loss based on 43          loans  that were specifically  enumerated in  various substantive          counts  of the indictment, plus  an additional 97  loans that the          Federal  Bureau  of   Identification  (FBI)  had   classified  as          fraudulent.   The court  then excluded from  its loss calculation          for  each defendant any loan that formed the basis for a specific          count on which he or she had been acquitted.   In restricting her          computations to these 140 loans, the judge relied on an affidavit          subscribed  to  by an  FBI case  agent,  who reviewed  the bank's          records  and  culled  out  loans  for  which  he  found "specific          evidence of fraud."                    Bearing in  mind the wide berth  that sentencing judges          must  be given  in determining  what information  is, or  is not,          sufficiently  reliable  to  be  used in  imposing  sentence,  see                                                                        ___          Tardiff,  969  F.2d at  1287, we  cannot  say that  Judge Zobel's          _______          refusal to venture beyond these 140 loans constituted clear error            especially  since the record contains  only sketchy information                                          15          about the origin and extent of losses on other loans.  Nor can we          say  that  the  judge   erred  in  excluding  "acquitted"  loans.          Although relevant  conduct must be  determined by the  court, not          the  jury, see, e.g., United  States v. Tavano,  12 F.3d 301, 306                     ___  ____  ______________    ______          (1st Cir. 1993); United States v.  Mocciola, 891 F.2d 13, 17 (1st                           _____________     ________          Cir.  1989), we  believe the  evidence here  falls well  short of          compelling a finding that any "acquitted"  loans must be included          __________          in calculating the amount of loss.                    Because  the record  adequately  supports the  district          court's findings as to both multiple loss causation and amount of          loss   indeed,  the government  has shown us  nothing that  casts          serious  doubt on  the  plausibility of  the court's  findings in          either  respect   we conclude  that the departure decision passes          muster at step two.                           D.  Step Three:  Reasonableness.                           D.  Step Three:  Reasonableness.                               ___________________________                    We  come now to the  final step in  the review process,          focusing on whether  the "direction and degree of  departure" are          reasonable.  Diaz-Villafane, 874 F.2d at 49.  The government says                       ______________          that  the  district court  stumbled at  this  step by  failing to          explain how it arrived at such sizable sentence reductions and by          exhibiting  unreasonable leniency.  We turn  first to the absence          of  a  particularized  explanation  of  how  the  district  court          determined the extent to which it would depart.                    1.  The Need  for Findings.  In United States v. Emery,                    1.  The Need  for Findings.                        ______________________      _____________    _____          991  F.2d  907, 913  (1st  Cir. 1993),  we  held that  it  is not          necessary  for  a  district   court  to  "dissect  its  departure                                          16          decision, explaining in mathematical or pseudo-mathematical terms          each  microscopic   choice  made  in  arriving   at  the  precise          sentence."     We  opted   instead  for  a   pragmatic  approach,          recognizing  the helpfulness of  explanations but cautioning that          "when  the court has  provided a  reasoned justification  for its          decision to  depart, and  that statement constitutes  an adequate          summary  from   which  an   appellate  tribunal  can   gauge  the          reasonableness of the departure's extent, it has no obligation to          go further and attempt to quantify the impact of each incremental          factor on the departure  sentence."  Id.  This  approach reflects                                               ___          our view that judicial discretion, sensibly exercised, is in most          cases the critical determinant  of the degree of departure.   See                                                                        ___          United  States  v.  Aymelek, 926  F.2d  64,  70  (1st Cir.  1991)          ______________      _______          (holding that,  in respect to unguided  departures, "a sentencing          court need  not resort at all to analogies"); Diaz-Villafane, 874                                                        ______________          F.2d  at  51-52 (disavowing  any  intention  to reduce  departure          decisions to exercises in "mechanistic bean-counting").                    This  approach  is not  discredited  by  cases such  as          United States  v. Rosales, 19 F.3d  763 (1st Cir. 1994).   There,          _____________     _______          the district  court gave only a terse  summary of its reasons for          departing,  and offered no insight  into how it  settled upon the          degree  of departure.   On  appeal, this  paucity  of information          compromised our ability to  assess the departure's reasonableness          and necessitated a new sentencing proceeding.  See id. at 770.                                                         ___ ___                    To  be  on the  safe  side, a  sentencing  judge should          always endeavor to explain the extent of a departure.  Yet judges                                          17          are human, and, like other human beings, they will sometimes fail          to  dot every "i" and  cross every "t."  When  such a slip occurs          and  a  sentencing court  neglects to  explain  how it  fixed the          extent  of  a departure,  no  bright-line  rule  obtains.    Such          situations must be handled on  a case by case basis.   The bottom          line is that we eschew a purely mechanical test   one that merely          asks  whether  or  not the  sentencing  court  has made  findings          explaining the degree of departure    in favor of a practical one            one that asks more broadly whether or not the  sentencing court          has supplied  the appellate panel with  sufficient information to          enable it to determine the reasonableness of the departure.  See,                                                                       ___          e.g., United States v. Quinones, 26 F.3d 213, 219 (1st Cir. 1994)          ____  _____________    ________          (stating  that the court of appeals will overlook the omission of          an  explicit explanation anent the  scope of a  departure "if the          reasons for the judge's  choice are obvious or if  an explanation          can fairly be implied from the record as a whole").                       Here,   unlike   in   Rosales,   appellate   review  is                                          _______          facilitated by the sentencing court's detailed explication of the          circumstances warranting departure.  This thorough exposition  is          adequate to explain the departures' extent.  In particular, Judge          Zobel's  founded determination  that the  amount of  loss grossly          overstated the  seriousness of the defendants'  criminal activity          weighs heavily.  Precisely because  the guidelines use amount  of          loss as a  proxy for  culpability in fraud  cases, a  supportable          finding  that the loss exaggerates the reality of events often is          tantamount to  a finding  that the conventional  sentencing range                                          18          exaggerates a  defendant's blameworthiness,  and, thus,  tends to          invite  a  corresponding downward  departure.    So it  is  here.          Accordingly,  while we  would  have preferred  a more  deliberate          discussion  of the degree of departure, "we see no purpose served          in this  case  . .  .  in remanding  to  make explicit  what  was          implicit."  United States v. Sclamo, 997 F.2d 970,  974 (1st Cir.                      _____________    ______          1993).                    2.  The  Departures' Extent.   The second  shot in  the                    2.  The  Departures' Extent.                        _______________________          government's  sling  comes  closer  to   the  mark.    The  three          departures currently under review are substantial; as we show  in          the margin,  the least  generous of  them (applicable  to Harris)          reduces the sentence to one-third the bottom of the GSR, and  the          other  two  departures (applicable  to  Bonaiuto and  DiCologero,          respectively)          manifest  even greater  clemency.9   Nonetheless, we  reject both          the prosecution's implicit  premise that  unguided departures  of          this magnitude are presumptively unsound and its explicit premise                                        ____________________               9The following chart illustrates the degrees of departure:                    Defendant            GSR          Incarcerative                    _________            ___          _____________                                                         Sentence                                                         ________                  J. Harris           27-33 months       9 months                  P. Bonaiuto         33-41 months       0                  D. DiCologero       27-33 months       0          Relatedly, the court placed Bonaiuto on  two years probation, six          months of which was to be served in a community treatment center,          and  sentenced   DiCologero  to  a  two-year   term  of  straight          probation.                                          19          that   the   particular   departures  sub   judice   are   simply                                                ___   ______          unreasonable.10                    We  begin   at  bedrock.     In  respect   to  unguided          departures, once  the  sentencing court  identifies a  departure-          justifying circumstance and decides  to act upon it, there  is no          algebraic formula that it can  invoke to quantify the departure's          extent.    Hence, determining  the size  of  such a  departure is          "quintessentially a  judgment call," Diaz-Villafane, 874  F.2d at                                               ______________          49,  of a  type  that  the  law leaves  almost  entirely  to  the          sentencing  court's  standardless  discretion.   This  means,  of          course, that  there  is no  single, correct,  "one-size-fits-all"          unguided departure;  rather, in any  given situation, a  range of          widely disparate  options doubtless  fall within the  universe of          acceptable sentencing outcomes.                    Similarly, once  the trial  judge departs, there  is no          litmus test that an appellate court can employ to verify that the          extent of  an unguided departure  is    or is  not    reasonable.                                        ____________________               10In  general,  departures  can  be  classified  as   either          "guided" or "unguided."  As the label implies, a guided departure          is  one in which a "guideline or related commentary suggests that          under  [the]  particular circumstances  the  departure  should be          calibrated  by  a particular  analogy  to  the sentencing  grid."          Bruce  M. Selya  & Matthew  R. Kipp,  An Examination  of Emerging                                                ___________________________          Departure  Jurisprudence Under the Federal Sentencing Guidelines,          ________________________________________________________________          67 Notre  Dame L. Rev.  1, 12 (1991).   In contrast,  an unguided          departure,  although  it may  be  based  on grounds  specifically          encouraged or identified in the guidelines, is not constrained by          a specification of the  means through which the sentencing  court          must calculate the departure's  magnitude.  See id.   We restrict                                                      ___ ___          our  discussion  today  to  unguided  departures, because  former          application note 11  to section  2F1.1, as it  appeared in  1987,          offered no  definitive directions  for determining the  extent of          downward departures based on multiple loss causation.                                          20          This stark  reality, coupled  with the district  court's superior          knowledge  of the facts and  its matchless ability  to detect the          subtle nuances that at times distinguish cases from the mine-run,          argues convincingly for  a deferential approach.  See Rivera, 994                                                            ___ ______          F.2d  at 950 (discussing  desirability of  deference in  light of          "sentencing court's superior `feel' for the case") (quoting Diaz-                                                                      _____          Villafane,  874 F.2d  at  50); see  generally  Bruce M.  Selya  &          _________                      ___  _________          Matthew   R.  Kipp,   An   Examination   of  Emerging   Departure                                ___________________________________________          Jurisprudence Under  the Federal Sentencing Guidelines,  67 Notre          ______________________________________________________          Dame L. Rev. 1,  39-40 (1991) (explaining that, in  reviewing the          extent of an unguided departure, "the sentencing judge's decision          is  accorded  generous latitude  in  recognition  of the  court's          firsthand knowledge of  the case").   We have consistently  held,          therefore,  that  appellate  judges  must  exercise  considerable          restraint before disturbing the presider's reasoned definition of          the degree  of departure.   See  Rivera, 994  F.2d at  950; Diaz-                                      ___  ______                     _____          Villafane, 874 F.2d at 49-50.          _________                    To  be  sure,  this  emphasis  on  deference  places  a          considerable  burden on the sentencing judge.  To ease the weight          of this burden, the  judge is entitled to expect  counsel's help.          The lawyers are (or, at least, they should be) a fecund source of          assistance, for they have every incentive to give the trial court          the benefit of their thinking on issues in the case.  Indeed, the          prosecution, which  has an institutional interest  in seeing that          justice  is  done,  possesses an  incentive  that  borders on  an          obligation.                                          21                    Departures fit neatly within this conceptual framework.          Judges  must forewarn  the  parties of  imminent departures,  see                                                                        ___          Burns  v. United States, 501  U.S. 129, 135-39  (1991), and, once          _____     _____________          forewarned, the prosecution and  the defense become full partners          with the court in  the departure pavane.  Given  the opportunity,          the  parties    out of  self-interest, if  for no  more ennobling          reason   should try to  aid the court in determining  what degree          of departure best  responds to the idiosyncratic features  of the          specific  case.  A prosecutor who forfeits this opportunity is in          a peculiarly  poor position to protest profusely  when the judge,          left to her  own devices, thereafter exercises  her discretion as          she deems best.                    This   brings  us   to  a  special   circumstance  that          undermines the argument the United  States advances here.   Judge          Zobel  invited  the government  to  make  recommendations at  the          disposition   hearing  concerning   the  appropriate   degree  of          departure  for  each  defendant.   The  prosecutor  declined  the          invitation, clinging  stubbornly to  his position that  the court          should not  depart at all.   At oral argument in  this venue, the          government sought to justify this maneuver by suggesting that its          underlying position   its claim that the district court could not          lawfully depart    somehow relieved it  of any responsibility  to          assist  the court  in fixing  the  degree of  departure.   We are          unpersuaded.                    The court below was  faced with two distinct decisions:          whether  to depart, and  if so, to  what extent.   Once the court                                          22          resolved the threshold issue and solicited the parties' views  on          the second  issue, the  prosecution, given its  distinctive role,          could  not  sidestep the  separate inquiry  as  to the  degree of          departure merely  because it  disagreed with the  court's initial          ruling.  Counsel who lose  a point can neither pout nor  play the          ostrich, but  must move on  and confront the next  set of issues.          See, e.g., United States v.  Smolar, 557 F.2d 13, 17  (1st Cir.),          ___  ____  _____________     ______          cert. denied,  434 U.S. 866 (1977).   Just as a  lawyer who moves          _____ ______          unsuccessfully for judgment as a matter of law must then give the          court  his suggested  jury instructions  on the  issue or  risk a          less-than-favorable charge,  so,  too, a  prosecutor  who  argues          against a departure, loses, and then refuses to offer suggestions          referable to the degree of departure runs a comparable risk.                    In this instance, the chickens came home to roost:  the          district  court, unable  to  pry  a  recommendation  out  of  the          prosecution, granted  sizable sentence  reductions.   Under these          straitened circumstances, the  government has an especially  hard          row to hoe  in its effort to convince us  that the district court          displayed  unreasonable generosity  in  shaping  the  departures.          Because reasonableness is  not an absolute, but  a construct that          "depends on the circumstances," Cotto v. United States,  993 F.2d                                          _____    _____________          274, 280 (1st Cir. 1993), the government's silence in the face of          the lower  court's timeous  request for  enlightenment concerning          the appropriate  extent of the departures  affects our assessment          of  the  departures'  reasonableness.     Put  another  way,  the          government, having  been afforded  an opportunity to  influence a                                          23          discretionary decision  and having  chosen instead  to stonewall,          can  expect  that  doubts  will  be  resolved  against  it  when,          thereafter,  it attempts  to second-guess  that decision.11   Cf.                                                                        ___          Paterson-Leitch  Co. v. Massachusetts  Mun. Wholesale  Elec. Co.,          ____________________    ________________________________________          840 F.2d  985, 989 (1st Cir. 1988)  ("Courts, like the Deity, are          most frequently moved to help those who help themselves.").                    Against this  backdrop, we conclude that the government          has not shown  the sentencing outcomes in this case  to be beyond          the realm of  reason.   In reviewing upward  departures, we  have                                               ______          ratified  very  dramatic  deviations  from  tabulated  sentencing          ranges so  long as they have  been shown to be  responsive to the          record.  In Diaz-Villafane, for instance, we affirmed a 120-month                      ______________          sentence though the GSR  topped out at 33  months.  In  approving          this upward  departure    representing  a  264% increase  in  the          defendant's  sentence    we  deferred  to  "the district  court's                                        ____________________               11Our concurring brother  misapprehends this  point.   Since          reasonableness is  necessarily a function of  what the sentencing          court knows,  depriving the  court of the  prosecutor's judgments          about the extent of an  anticipated departure limits the  court's          knowledge and,  thus, affects  the reasonableness of  its ensuing          determination.    Contrary  to   Judge  Stahl's  assumption,  the          unhelpful prosecutor  does not "waive" anything;  he simply makes          his post hoc complaint less convincing.              ____ ___                    By  like  token,   we  do  not  believe  that   we  are          encouraging "empty exercise[s]."  Post at 34.   We agree that the                                            ____          prosecutor who, as our concurring brother suggests, "recommend[s]          a downward departure of one week," does not assist the sentencing          court.  Id.  We disagree, however, that such a ruse would improve                  ___          the  prosecution's position  or  help to  alter  the calculus  of          reasonableness.  It  should go  without saying that,  just as  we          expect  lawyers  who suggest  jury instructions  to base  them on          existing law or good faith arguments for new law, so do we expect          the  government to be  candid and forthcoming  in commenting upon          the reasonableness of an anticipated departure.                                          24          firsthand knowledge of the case and its careful exposition of the          reasons why  it thought the  situation to be  markedly atypical."          874 F.2d at 52.  Diaz-Villafane is not an aberration.  See, e.g.,                           ______________                        ___  ____          United  States v. Hernandez Coplin,  24 F.3d 312,  316 (1st Cir.)          ______________    ________________          (upholding as reasonable 38-month and 46-month upward departures,          representing increases of 380%  and 328% over the respective  GSR          ceilings), cert. denied,  115 U.S. 378  (1994); United States  v.                     _____ ______                         _____________          Doe, 18 F.3d 41, 48-49 (1st Cir. 1994) (upholding as reasonable a          ___          45-month upward  departure that represented a  166% increase over          the  GSR's apex);  United States v.  Figaro, 935 F.2d 4, 8-9 (1st                             _____________     ______          Cir.  1991) (upholding  as  reasonable an  upward departure  that          tripled the  defendant's sentence); United  States v.  Rodriguez-                                              ______________     __________          Cardona,  924  F.2d  1148,   1156-57  (1st  Cir.)  (upholding  as          _______          reasonable  an 84-month  upward  departure  that  represented  an          increase of 165% over the GSR's apex), cert. denied, 502 U.S. 809                                                 _____ ______          (1991).                    Because  we do  not visualize  departures as  a one-way          street leading invariably to higher sentences, the same reasoning          applies ex proprio  vigore to downward  departures.  This  street                  __ _______  ______          runs  both ways.  Consequently,  the amount of  deference that is          due to  a  district  court's  decision regarding  the  degree  of          departure  does  not  expand  and  contract  depending  upon  the          departure's  direction.    See,  e.g.,  United  States  v.  White                                     ___   ____   ______________      _____          Buffalo,  10  F.3d  575, 577-78  (8th  Cir.  1993)  (upholding as          _______          reasonable a downward departure to a term of probation as against          a GSR of 18-24 months); United States v. One Star, 9 F.3d 60, 61-                                  _____________    ________                                          25          62 (8th Cir. 1993) (upholding as reasonable a downward  departure          to a term of probation as against a GSR of 33-41 months); Sclamo,                                                                    ______          997  F.2d at 972 (upholding as reasonable a downward departure to          a term  of probation as  against a GSR  of 24-30 months);  United                                                                     ______          States v. Jagmohan,  909 F.2d  61, 65 (2d  Cir. 1990)  (affirming          ______    ________          district court's downward departure from GSR of 15-21 months to a          term of probation).                    We  will not primp  the peacock's plumage.   Here, four          critical factors  militate against a holding  that the departures          are  unreasonably steep:   (1)  the district  court's supportable          finding that the amount of loss vastly overstated the defendants'          culpability,  (2) the  combined  impact of  the several  external          elements cited by  the court  (e.g., the greed  displayed by  the                                         ____          lender's senior  management, the  bank's negligence, the  buyers'          complicity,  and   the  market's   collapse),  (3)   the  special          circumstance that the government  refused to assist the  court in          the  daunting task of  determining the departures'  size, and (4)          the breadth of the court's discretion in this area of sentencing.          Though  the  question  is  close,  we  conclude  that  the  three          departures  are  all within,  albeit  tiptoeing  along the  outer          periphery of, the universe of acceptable sentencing outcomes.                    Finally, we  think that the differences  in the degrees          of departure as among the various defendants are sustainable.  As          we have repeatedly observed,  the amount of loss  is a proxy  for          the seriousness of an offense.  In a broad sense,  then, the loss          calculation is relevant to an individual defendant's culpability,                                          26          and  the departure for multiple  loss causation is  driven by the          knowledge   that,  on   occasion,   the   proxy  will   overstate          culpability.  In sentencing  these defendants, the district court          made explicit  findings as to their  relative culpability, rating          the  brothers Rostoff "at  the high  end of  culpability," Harris          "somewhat  lower,"   Bonaiuto  "somewhat  below   [Harris],"  and          "DiCologero below that."12   The court then linked the  degree of          departure  to  the degree  of  culpability.    Once a  departure-          justifying circumstance  has been identified, and  the sentencing          court has determined  to act upon it, a construct that varies the          degree of departure based on  relative culpability (as related to          the actual ground for departure) seems eminently reasonable.13                                 E.  Recapitulation.                                 E.  Recapitulation.                                     ______________                    We  have  made the  pilgrimage  that  Rivera and  Diaz-                                                          ______      _____          Villafane  demand.   Having done  so, we  find that  the district          _________          court departed  for an  encouraged reason, permissible  under the          guidelines;   that   the  departure-justifying   circumstance  is          sufficiently record-rooted; and that the extent of the departures                                        ____________________               12In a  colloquy with the  court, the prosecutor  ranked the          defendants in  order  of  perceived  culpability,  listing  David          Rostoff as the most  culpable, Steven Rostoff second,  and Harris          third.   Bonaiuto and  DiCologero brought up  the rear.   For the          most part,  the sentences  imposed by Judge  Zobel coincide  with          this ranking.  This  parallelism makes it all the  more difficult          for  the  government to  maintain  that  the judge's  method  was          madness.               13Of course, relative culpability  alone is not a reason  to          depart.   See United States   v. Wogan, 938 F.2d  1446, 1448 (1st                    ___ _____________      _____          Cir.), cert. denied, 502 U.S.  969 (1991).  If, however, a  valid                 _____ ______          departure-justifying circumstance is  present, and the sentencing          court  acts   on  it,  relative   culpability  appropriately  can          influence the degree of departure.                                          27          is  within  acceptable bounds    (if barely).    Consequently, we          uphold  the  downward departures  as  to  the defendants  Harris,          Bonaiuto, and DiCologero.          III.  ROLE IN THE OFFENSE          III.  ROLE IN THE OFFENSE                    The final leg of our journey brings us to the sentences          imposed  on the  Rostoff  brothers.   Those  defendants erect  an          immediate  roadblock,  asseverating  that  the  district  court's          downward  departures   eliminate  any  need  to   scrutinize  the          antecedent role-in-the-offense adjustments.  Therefore, they urge          us to  vault directly to a departure  analysis, ignoring possible          errors in the court's interim  sentencing adjustments.  We demur:          following this course would put the cart before the horse.                    We  need  not  tarry,  for  the  Rostoffs'  importuning          impales itself on the horns of stare decisis.  The reasonableness                                         _____ _______          of  a departure  depends on  its  extent    and the  extent of  a          departure  cannot  be measured  unless  and  until a  defendant's          sentencing range  is established.   Thus, "a  decision to  depart          does not, as a general rule, render moot questions concerning the          appropriateness  of  the calculations  underbracing  the district          court's computations of the GSR."   Emery, 991 F.2d at 910.   The                                              _____          case at hand falls squarely within  the Emery doctrine:  each  of                                                  _____          the   challenged   role-in-the-offense   adjustments  "at   least          potentially, has more than academic effect on the actual sentence          because  the proportionality  of the  departure to  the GSR  is a          salient  factor  to  be  considered in  judging  the  departure's          reasonableness."  Id.                            ___                                          28                    Having dismantled  the Rostoffs' roadblock, we  turn to          the challenged  adjustments.   The sentencing  guidelines provide          for  elevating the OL  of "an organizer  or leader  of a criminal          activity that involved five or more participants or was otherwise          extensive" by  four levels, U.S.S.G.  3B1.1(a);  elevating the OL          of  lieutenants    the "manager[s]  or supervisor[s]" of  such an          activity   by three levels, U.S.S.G.  3B1.1(b); and elevating the          OL of  those  occupying  leadership  slots  in  smaller  or  less          extensive criminal enterprises by two levels, U.S.S.G.  3B1.1(c).          Here, the  district court  invoked subsection (c),  and increased          the OL of  each Rostoff brother  by two  levels.  The  government          contends that the court should have applied either subsection (a)          or (b).  We agree.                              A.  What Transpired Below.                              A.  What Transpired Below.                                  _____________________                    The disputed role-in-the-offense adjustments originated          with  the   Probation  Department.    It   recommended  two-level          enhancements under subsection (c)  even though it acknowledged in          the  PSI  Reports  that  the  Rostoffs  were  "principal[s]"  who          "participated in  the management and coordination  of the scheme"          and  who "received  a  larger  share  of  the  proceeds  of  this          conspiracy."      The   government  objected   to   the  proposed          adjustments,  emphasizing the  size and  complexity of  the plot.          The Probation  Department stood  firm.  Curiously,  however, even          while rejecting  the objection,  it conceded  in  an addendum  to          Steven  Rostoff's  PSI  Report  that the  criminal  activity  was          "extensive,"  and that  all five  defendants had  been "principal                                          29          participants" in it.                    The   government  renewed  its   objection  before  the          district  court,  but  to  no  avail;  Judge  Zobel accepted  the          Probation  Department's recommendations  on this  subject without          making  any  independent  findings.    Accordingly,  each brother          received a two-level enhancement under subsection (c).                               B.  Standard of Review.                               B.  Standard of Review.                                   __________________                    Role-in-the-offense  determinations are  innately fact-          specific.  The court of appeals must, therefore, pay careful heed          to  the sentencing judge's views.   See United  States v. Ocasio,                                              ___ ______________    ______          914 F.2d  330, 333 (1st Cir. 1990).  It follows that our standard          of oversight is deferential:   "absent mistake of law,  we review          such  determinations only  for clear  error."   United  States v.                                                          ______________          Dietz, 950  F.2d  50, 52  (1st  Cir.  1991).   Questions  of  law          _____          engender de novo review.   See United States v.  Brewster, 1 F.3d                   __ ____           ___ _____________     ________          51, 54 (1st Cir. 1993).                                    C.  Analysis.                                    C.  Analysis.                                        ________                    In ruling  that  subsection (c)  applied, the  district          court  necessarily found  that  the Rostoffs  were "organizer[s],          leader[s],  manager[s]   or   supervisor[s]"  of   the   criminal          enterprise.   U.S.S.G.   3B1.1(c).   Neither side  has challenged          this  finding.   The  question on  appeal,  then, is  whether the          defendants' criminal activity "involved five or more participants          or  was  otherwise  extensive,"   and,  thus,  fell  outside  the          parameters of subsection (c).                    The  government's assertion that  the criminal activity                                          30          involved  at least five participants is ironclad.  For one thing,          the Probation Department's finding  to this effect is essentially          unchallenged.   For another thing, inasmuch as the jury found all          five defendants  guilty on  the conspiracy count,  the sentencing          court was bound to conclude  that the criminal activity  involved          no  fewer than five participants.   See United  States v. Weston,                                              ___ ______________    ______          960  F.2d 212,  218 (1st  Cir. 1992)  (explaining that  under the          guidelines "a guilty verdict, not set aside, binds the sentencing          court to accept the facts necessarily implicit in the verdict").                    Despite  the  impeccable provenance  of this  fact, the          brothers try an  end run around it.   They contend that  U.S.S.G.           3B1.1(a)-(b)  does  not  apply  because,  while  they  may  have          exercised  leadership in a criminal  enterprise that had at least          five members, neither of  them recruited, controlled, or directly          supervised  four  other people.14   We  need  not dwell  upon the          correctness of the Rostoffs'  self-assessment, however, for their          end run takes us on a fool's errand.                    Since the relevant language  of subsections (a) and (b)          is  disjunctive,   either  extensiveness  or   numerosity  is   a          sufficient  predicate   for  a   three-   or  four-level   upward          adjustment.  See United States v.  Hall, 996 F.2d  284, 287 (11th                       ___ _____________     ____          Cir.  1993);  Dietz, 950  F.2d  at 53-54.   In  this  instance, a                        _____          careful  review of  the  record  leaves  no  room  to  doubt  the                                        ____________________               14The operative number of other  persons is four rather than          five,  since  the  defendant   himself  must  be  counted   as  a          participant, see  United States v. Tejada-Beltran,  ___ F.3d ___,                       ___  _____________    ______________          ___ n.9  (1st Cir. 1995) [No.  94-1780, slip op. at  18 n.9], and          the defendant presumably is under his own control.                                          31          extensiveness of  the criminal  enterprise.   Thus,  we need  not          inquire  into  the attributes  that might     or might  not    be          essential  if   the  enhancement  depended  upon   a  finding  of          numerosity.15                    Unlike numerosity, extensiveness does not depend upon a          finding that  a criminal  activity embraced  no  fewer than  five          criminally  responsible  participants,   see  United  States   v.                                                   ___  ______________          Melendez, 41 F.3d 797, 800 (2d Cir. 1994); Dietz, 950 F.2d at 53-          ________                                   _____          54, much  less a finding that the  activity included four or more          persons  under  the  defendant's   direct  control.    Rather,  a          determination that a criminal  activity is "extensive" within the          meaning of  section  3B1.1  derives  from "the  totality  of  the          circumstances, including not only  the number of participants but          also the width, breadth, scope,  complexity, and duration of  the          scheme."  Dietz, 950 F.2d at 53.                    _____                    Here,  the  conspiracy  lasted for  over  three  years,          encompassed  a bare  minimum  of 140  fraudulent loans,  consumed          millions of dollars,  affected many lives, and  involved a legion                                        ____________________               15Some  courts have  held  that, when  the applicability  of           3B1.1(a)  depends upon numerosity rather than extensiveness, the          defendant must be  shown personally to  have controlled no  fewer          than four  other  participants.    See, e.g.,  United  States  v.                                             ___  ____   ______________          Carson, 9 F.3d 576, 584 (7th  Cir. 1993) (stating that to warrant          ______          invoking  subsection  (a),  the  defendant must  have  had  "some          control,   direct  or   indirect,  over   at  least   four  other          participants in  the  offense"), cert.  denied,  115 S.  Ct.  135                                           _____  ______          (1994); United States v. Reid, 911 F.2d 1456, 1465 n.8 (10th Cir.                  _____________    ____          1990) (same), cert. denied, 498 U.S. 1097 (1991).  Other circuits                        _____ ______          take a different position.  See,  e.g., United States v. Dota, 33                                      ___   ____  _____________    ____          F.3d 1179, 1189 (9th  Cir. 1994), petition for cert.  filed (U.S.                                            _________________________          Jan.  9,  1995)  (No.  94-7604).    Both  the  validity  and  the          permutations  of  this  interpretation  of   3B1.1(a)  are   open          questions in this circuit.                                          32          of people beyond  the five named defendants.   On this record, we          are  compelled   to  conclude   that  the   defendants'  criminal          activities satisfy the extensiveness  standard that is built into          U.S.S.G.   3B1.1(a)-(b).  Consequently, the two-level enhancement          cannot  stand:   if the  district court  impliedly held  that the          defendants' criminal  activity was  not  extensive, it  committed          clear  error,   and  if   the  court  applied   section  3B1.1(c)          notwithstanding the  extensiveness of  the criminal  activity, it          misapprehended  the law.  Either way, the court's crafting of the          Rostoffs'  adjusted offense  levels undervalued  their respective          roles in the offense, requiring resentencing.16          IV.  CONCLUSION          IV.  CONCLUSION                    We  need go  no further.   For  the reasons  stated, we          affirm  the  convictions  of   all  defendants,  and  affirm  the          sentences  meted  out to  the  defendants  Harris, Bonaiuto,  and          DiCologero.    However, we  vacate the  sentences imposed  on the          defendants David and  Steven Rostoff, and remand their  cases for          resentencing in light of the need for altered role-in-the-offense          determinations.                    Affirmed  in part,  vacated in  part, and  remanded for                    Affirmed  in part,  vacated in  part, and  remanded for                    _______________________________________________________          further proceedings consistent with this opinion.          further proceedings consistent with this opinion.          ________________________________________________                                        ____________________               16The  government  maintains  that David  Rostoff's  offense          level  should be  enhanced by  four levels  pursuant to  U.S.S.G.           3B1.1(a) and  Steven Rostoff's offense level  should be enhanced          by three levels pursuant to U.S.S.G.  3B1.1(b).  We take  no view          of these particulars, leaving the resolution of such interstitial          questions to the district court.                                          33                              CONCURRING OPINION FOLLOWS                               CONCURRING OPINION FOLLOWS                                           34                    Stahl, Circuit Judge, concurring.  While  I  agree with                           _____________          the  majority's result and with  much of its  reasoning, I cannot          agree  that  the prosecution's  "reticence"  at  recommending the          degree   of  departure   should   animate  our   review  of   the          reasonableness of the district court's departure decision.                    We  review  the   direction  and  degree   of  unguided          departures for  reasonableness.  United States v. Diaz-Villafane,                                           _____________    ______________          874 F.2d 43, 49 (1st Cir. 1989); see also 18 U.S.C.   3742(e)(3).                                           ___ ____          In determining whether a sentence  is reasonable, we proceed with          "`full  awareness of,  and  respect for'  the sentencing  court's          `superior "feel"  for the  case.'" United  States v.  Rivera, 994                                             ______________     ______          F.2d  942, 950 (1st Cir. 1993)  (quoting Diaz-Villafane, 874 F.2d                                                   ______________          at   50).    Accordingly,  the   standard  of  review  "is  quite          deferential to the district judge."   United States v.  Hernandez                                                _____________     _________          Coplin, 24 F.3d 312, 316 (1st Cir. 1994).  We have never informed          ______          our  deference  by what  the  prosecutor  recommends, either  for          upward or downward departures.                      The  majority states  that if  the government  fails to          recommend  a downward  departure  when  invited  to do  so,  "the          government has an  especially hard row  to hoe in  its effort  to          convince  us  that  the  district  court  displayed  unreasonable          generosity  in shaping the departures,"  Majority at 22, and that                                                   ________          "the  government's  silence  in  the face  of  the  lower court's          timeous  request  for  enlightenment concerning  the  appropriate          extent  of   the  departures   affects  our  assessment   of  the          departures'  reasonableness," id. at 23.  With this, the majority                                        ___                                          35          appears to  adopt a waiver-like analysis, such  that a prosecutor          who  fails to  recommend an  appropriate sentence  risks a  near-          automatic affirmance of the district court's sentence.   I cannot          agree that the government's action, be it in the nature of waiver          or  otherwise,  has  anything  to  do  with  our  review  of  the          reasonableness  of the sentence, for in assessing reasonableness,          our focus is on the facts of the case, not on the recommendations                              _____          made by counsel.  Thus even if the government recommends a lesser          departure than the court grants, that recommendation cannot be an          appropriate basis  for us  to  decide that  the court's  ultimate          decision fails the reasonableness test.                    In my  view, the majority  requires the  court and  the          prosecutor to engage in an empty exercise, for to avoid affecting          appellate review, the government  would routinely recommend  very          small downward  departures, even though it  believes no departure          is  warranted and  even though  such advice  will not  assist the          court  any  more than  the  government's  true  position that  no          departure  is warranted.    Unlike the  majority's  example of  a          lawyer who moves unsuccessfully  for judgment as a matter  of law          who  must  then  suggest  jury instructions  to  the  court,  see                                                                        ___          Majority at 22, the  prosecutor who unsuccessfully argues against          ________          a   decision  to  depart  does  not  assist  the  court  by  then          recommending  a downward departure of one week.  In the departure          context, the  government's silence  carries with it  the implicit          recommendation that no departure (and, therefore,  at most a very                              __          small one) is  appropriate.  Thus the government's  argument that                                          36          there  is no legal authority  to depart often  conflates with its          position that no departure is appropriate.                    I fail to understand  the application of the majority's          apparent  rule in this case.  The majority accuses the prosecutor          of "stonewall[ing]," Majority at  23, and of "clinging stubbornly                               ________          to his position that the court  should not depart at all," id. at                                                                     ___          21.   It  is true that  the prosecutor  did not  believe that the          court was entitled to consider multiple  causes for the loss as a          grounds for departing downward.  In addition to making that legal          argument, however, the  prosecutor also argued  that even if  the          court  had legal authority to  depart, the losses  being used for          sentencing  purposes did  not  overstate the  seriousness of  the          defendants'  offense.   Thus the  prosecutor, accepting  that the          district  court had  legal  authority to  depart downward,  still          argued  that no departure was warranted.  In accordance with that          view,  when invited  to  recommend an  appropriate sentence,  the          prosecutor responded, "Your Honor, we believe that the sentencing          guideline  ranges that  were calculated  by the  Probation Office          were  appropriate ones  .  . .  ."   The  district court,  hardly          pressing  for more  assistance, replied,  "Oh, I  understand.   I          understand."   The  prosecutor  went  on, however,  to  rank  the          defendants   in  order   of  the   government's  view   of  their          culpability.  I would not  characterize the prosecutor as  having          "stonewall[ed]."                    Thus,  given the  deference  appropriate  in  reviewing          departure  decisions, and given  the facts found  by the district                                          37          court, we  cannot say that the district  court acted unreasonably          in departing downward to the extent it did in this case.  This is          so  not  because of  any reticence  showed  by the  government in          failing  to recommend  appropriate  sentences to  the court,  but          rather  because   these   departures,  while   significant,   are          nonetheless  within   the  realm   of   reasonableness.17     The          government's "silence" on the  amount of departure is irrelevant,          and  the deference accorded the district court is not affected by          actions of the government.                                        ____________________               17   See  Majority  at 23-24  (discussing reasonableness  in                    ___  ________          context of other departure cases).                                          38
