
USCA1 Opinion

	




          March 1, 1996                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1852                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                     JACK BLACK,                                Defendant, Appellant.                                 ____________________        No. 95-1149                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 HERBERT E. PLYMPTON,                                Defendant, Appellant.                                  __________________        No. 95-1187                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               JEFFREY HARRIS LAVIGNE,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET            On page 3, lines 9 and 11 down, replace "Black" with "Lavigne".            On page 13, line 4, "latter" should be "later".            On page 20, last line, insert "is" between "departure" and "not".                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1852                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                     JACK BLACK,                                Defendant, Appellant.                                 ____________________        No. 95-1149                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 HERBERT E. PLYMPTON,                                Defendant, Appellant.                                  __________________        No. 95-1187                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               JEFFREY HARRIS LAVIGNE,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                          and Rosenn,* Senior Circuit Judge.                                       ____________________                                                                            ____________________            David  A. Schechter,  Margaret-Mary  Hovarth and  Law  Offices  of            ___________________   ______________________      ________________        David A. Schechter on brief for appellant Jack Black.        __________________            Charles  J.   Rogers,  Jr.  on  brief  for  appellant  Herbert  E.            __________________________        Plympton.            Paul A. Dinsmore on brief for appellant Jeffrey Harris Lavigne.            ________________            Jeffrey Harris Lavigne on brief pro se.            ______________________            Gerard  B. Sullivan,  Assistant  United States  Attorney,  Sheldon            ___________________                                        _______        Whitehouse, United States Attorney,  and Margaret E. Curran, Assistant        __________                               __________________        United States Attorney, on briefs for the United States.                                 ____________________                                  February 27, 1996                                 ____________________                                    ____________________        *Of the Third Circuit, sitting by designation.                 BOUDIN, Circuit Judge.   Appellants Jack Black,  Herbert                         _____________            Plympton and  Jeffrey Lavigne were indicted  in November 1993            and  charged  with conspiracy  to  steal  and sell  goods  in            interstate  commerce,  18  U.S.C.    371,  and  with  various            substantive crimes incident to the conspiracy.  Also named in            the indictment as co-defendants were the alleged ring-leader,            Donald  St. Germain, and two others:  Raymond Wilbur and Joni            Lynn Smith, who  was Plympton's  wife.  All  of the  indicted            defendants,  except  for  Lavigne  and  Plympton, later  pled            guilty to  specific offenses.   Several other co-conspirators            pled guilty to informations.                 Lavigne  and  Black  were  convicted  in  separate  jury            trials.  At  trial, the  government sought to  show that  St.            Germain organized  a series of  thefts of truck  trailers and            merchandise  in 1991 and 1992.  Typically, the thieves used a            borrowed  or stolen truck tractor  to haul away an unattended            trailer.  After checking the contents, they moved the trailer            to various locations in  Rhode Island and thereafter disposed            of the merchandise.  One storage location was at the American            Waste Paper Company in Cranston, Rhode Island; later, several            shipments were stored  at the Plympton farm  in Exeter, Rhode            Island.                 In   Plympton's  case,  the   government  dismissed  the            conspiracy  count   against  him  and  tried   him  on  three            substantive  counts  relating  to  two  of  the  many  thefts                                         -3-                                         -3-            attributed to  St. Germain.   Counts 1 and 2  of the redacted            Plympton  indictment charged  him with  receiving, concealing            and disposing of a shipment  of stolen Lands' End merchandise            moving  in interstate  commerce in  the fall  of 1992  and of            knowingly possessing stolen goods comprising part of the same            shipment.  18 U.S.C.    2315,  659.  Count 3, based solely on            section  2315,  involved  a shipment  of  Pennsylvania  House            furniture, stolen  a  month or  so later  and allegedly  also            stored at the Plympton farm.                 Lavigne,  St.  Germain's  companion  or  bodyguard,  was            indicted only  on a single  count.   He was charged  under 18            U.S.C.    1512(b)(3) with threatening physical  harm in order            to  delay  or prevent  one  Kathleen  Hartman from  providing            information  to   a   law  enforcement   officer   concerning            commission  of a  federal  offense.   Hartman was  the office            manager  of American  Waste  Paper Company  and had  provided            information  to state  and  federal agents.   The  government            charged Lavigne with twice intimidating Hartman in the spring            of 1991.                 Black,  who had  pled guilty  to  conspiracy and  to one            substantive  count under  section 2315,  was sentenced  to 60            months' imprisonment;  Plympton to 41 months;  and Lavigne to            46 months.  Substantial restitution payments were ordered for            Black and Plympton, and Lavigne was fined $1,000.  On appeal,                                         -4-                                         -4-            Plympton and Lavigne  challenge their convictions, and  Black            and Plympton appeal from their sentences.                 Plympton.  On this appeal, Plympton does not dispute the                 ________            sufficiency of the evidence on counts 1 and 2 but argues that            they comprised  only a single offense,  making the indictment            multiplicitous and violating the bar against double jeopardy.            More precisely, Plympton argues  that the section 659 offense            is effectively a lesser included offense within section 2315.            If it were, Plympton could not be convicted and sentenced for            both  offenses based  on the  same theft.   United  States v.                                                        ______________            Parrilla-Tirado, 22 F.3d 368, 372 (1st Cir. 1994).            _______________                 Under the familiar test of Blockburger v. United States,                                            ___________    _____________            284 U.S.  299, 304 (1932), the two statutes do not punish the            same offense,  nor is  one included  within the  other, where            "each provision  requires proof  of an additional  fact which            the other does  not."  To prove  a violation of  section 659,            the government had to show  that Plympton stole or  concealed            property "moving as or . . . part of or .  . . constitut[ing]            an  interstate . . . shipment"; here, for example, the Lands'            End  shipment  when  stolen  had been  moving  in  interstate            commerce.                 Section 2315,  by contrast, does not  require proof that            the theft was from interstate commerce; but it does require a            different interstate-commerce element not required by section            659.   Section 2315 punishes  receiving or disposing of goods                                         -5-                                         -5-            known to be stolen where such goods "have crossed a State . .            . boundary after being stolen."  In this case, the Lands' End            shipment, after  being stolen  in Pennsylvania, was  moved to            Plympton's farm in Rhode Island.                 The central focus of each statute is somewhat different,            one being concerned primarily  with theft and concealment and            the  other  with  the   receipt  and  disposition  of  stolen            property.  Plympton's activity, in  the middle of the  chain,            brought  him within the language of both.  And the difference            in  the interstate  commerce  elements meets  the  mechanical            Blockburger test.  The  test has been criticized, but  it was            ___________            properly  applied in  the district  court, happens  to do  no            injustice here (one trial; no increase in punishment), and is            binding upon us.                 No  Blockburger problem  is  presented by  count 3.   It                     ___________            concerned  a  different  theft--that  of  Pennsylvania  House            furniture--on a different occasion;  and in this instance the            charge was based  only upon section 2315.   But on this count            Plympton  does  challenge  the sufficiency  of  the evidence,            arguing  that  the  government   failed  to  prove  that  the            Pennsylvania House furniture was  ever at his farm or,  if it            was, that Plympton knew about it.                 Taking the evidence  in the light most  favorable to the            government, United States v. Robles, 45 F.3d 1, 2 (1st Cir.),                        _____________    ______            cert.  denied,  115  S.  Ct.  1416  (1995),  the  jury  could            _____________                                         -6-                                         -6-            reasonably conclude  that Plympton  used his farm  to conceal            stolen shipments for  St. Germain; some of the  stolen Lands'            End merchandise was  found on  the farm and  there was  ample            evidence  that Plympton knew it  was stolen.   There was also            evidence  that   Plympton  had  earlier  concealed  a  stolen            shipment of  K-Mart merchandise on  the farm.   Against  this            background,  the   evidence  to   connect  Plympton   to  the            Pennsylvania State furniture shipment was  sufficient even if            not overwhelming.                 Although none of  the furniture was  found at the  farm,            there  was  unequivocal  testimony  from  one  witness--Frank            Macera--that  Plympton received  the  furniture shipment  and            knew  it to  be stolen.   Macera,  who had  pled guilty  to a            criminal information covering the same transaction, was not a            very  trustworthy witness.    But the  jury  was entitled  to            accept his testimony, which was plausible  enough, especially            because technical  and eye-witness evidence  added small  but            useful elements of corroboration.                 Finally,  Plympton  contests  his  sentence  in  several            respects.    First, in  calculating  the  offense level,  the            district court  imposed a two-level increase  for obstruction            of justice;  specifically, the court found  that Plympton had            lied  at trial  when he  denied knowing  that the  Lands' End            merchandise in his barn was stolen and knowing anything about            the  Pennsylvania House furniture.   No one disputes that the                                         -7-                                         -7-            increase was required if Plympton did  in fact commit perjury            at trial.    U.S.S.G.    3C1.1;  United States  v.  Hernandez                                             _____________      _________            Coplin, 24 F.3d 312, 317 (1st Cir.), cert. denied, 115 S. Ct.            ______                               ____________            378 (1994).                 Plympton says that the evidence was insufficient to show            that he knew that either load of furniture was stolen. But we            have already said that there was enough to convict as to  the            Pennsylvania House furniture  theft and the evidence  against            him as to the Lands' End theft was even stronger.  If  it was            enough  to convict, it was  more than ample  for a sentencing            determination   under  the  preponderance   of  the  evidence            standard.   United States v.  Lombard, 32 F.2d  170, 176 (1st                        _____________     _______            Cir. 1995).   The claim of inadequate evidence is too weak to            warrant further discussion.                 After  calculating  the offense  level, the  trial judge            departed upward by  two additional levels.   The grounds  for            this departure were that after conviction but before sentence            Plympton created  an irrevocable trust  for his six  year old            daughter and  transferred to  it, without consideration,  his            real estate and business assets.  The trial judge found after            a hearing at which Plympton testified that the purpose of the            transfer was  to frustrate  collection  of a  likely fine  or            restitution and  that Plympton himself regarded  the trust as            "a sham."                                         -8-                                         -8-                 Plympton  now  attacks  the  district  court's  finding,            arguing  (as he  testified) that  his  purpose was  simply to            provide for his  daughter during his imprisonment  and in the            event of divorce.  But the evidence also showed that Plympton            created  the trust shortly after his wife had been ordered to            pay  over $400,000  in  restitution; that  Plympton had  been            warned  by his lawyer  that the trust  might be viewed  as an            attempt  to avoid payment  of restitution or  fines; and that            Plympton  intended to  return to  operate his  business after            release and  expected to be  able to use  the real estate  as            well.                 Fact-findings  by  the  district  court  in  sentencing,            including departures, are based on the preponderance standard            and subject  to reversal only  if clearly erroneous.   United                                                                   ______            States v. Porter,  924 F.2d 395,  399 (1st Cir.  1991).   The            ______    ______            court's  findings  as  to  Plympton's aim  and  attitude  are            permissible inferences  by a fact-finder  who heard  Plympton            testify.   They are not inconsistent with the further finding            that Plympton also  sought through the  trust to provide  for                          ____            his  daughter and manage his  business while in  prison.  The            end was proper but the means were not.                 Although  Plympton does  not  argue the  issue in  these            terms,  we have  also considered  whether the  district court            accepted, and  the evidence supports,  the government's claim            that Plympton acted  in bad faith.   Without this  additional                                         -9-                                         -9-            element, we might  have serious concerns.   But the  district            court's language  ("sham," "fraud")  makes clear that  it did            find bad faith and, again, the inference is permissible under            the clearly erroneous standard.  Our concerns, therefore, are            for another occasion.                 The most interesting issue is one that Plympton does not            raise, namely,  whether the  attempt to  frustrate a fine  or            restitution  order is  a permissible  basis for  a departure.            While Plympton did  not preserve  the issue nor  argue it  on            appeal, we would at  least be faced with a  plain error issue            if  we thought that the departure were not authorized.  There            is no need to discuss the extent of deference that may be due            to  the district court, see United States v. Rivera, 994 F.2d                                    ___ _____________    ______            942  (1st  Cir.  1993),  since we  agree  that  its  implicit            interpretation of the guidelines was correct.                 A  defendant's  attempt  to  frustrate  the   actual  or            anticipated judgment  by secreting assets is  closely akin to            obstruction  of justice;  indeed, if  Plympton had  sought to            hide himself before sentencing  in order to avoid  prison, he            would  plainly be  covered by  the obstruction  guideline and            subject  to  an  automatic   two-level  enhancement  on  that            account.   U.S.S.G.   3C1.1,  Comment. (n. 3(e)).   One could            argue  that the secreting of  assets was covered  by the same            guideline  but, if  not, then  by analogy  Plympton's conduct                                         -10-                                         -10-            properly  qualified  for  a  departure   under  the  catchall            departure provision.  U.S.S.G.   5K2.0.                 Plympton might  protest that, since he  has already been            given a  two-level adjustment for obstruction  by perjury, it            is  double counting  to  give him  an  additional two  levels            through  the  departure mechanism.    Of  course, the  latter            increase  results from  a different  act of  obstruction; but            Plympton might respond  that the guidelines contemplate  only            one  two-level   increase,  no   matter  how  many   acts  of            obstruction occur and regardless of whether the second act is            considered under section 3C1.1 or 5K2.0.                 Here,  Plympton's attempt  to frustrate  restitution was            not  just additional perjury but  a new and  different act of            misbehavior with a different  victim; and the sum of  the two            is  greater than  either standing  alone.   Even if  both are            treated as forms of obstruction and are within section 3C1.1-            -a matter we need not decide--section 5K1.0 permits departure            for an aggravating circumstance  "of a kind, or to  a degree,                                                         _______________            not adequately"  considered by the guidelines.   The district            court could fairly  conclude that this case fell  outside the            "heartland" and warranted a  departure.  Accord United States                                                     ______ _____________            v. Merritt,  988 F.2d 1298, 1310-11 (2d  Cir.), cert. denied,               _______                                      ____________            113 S. Ct. 2933 (1993).                 Plympton's last  sentencing claim is  that the  district            court acted  improperly in requiring him  to make restitution                                         -11-                                         -11-            either at all or within 60 days.  None of the arguments under            this  head were  presented in  the district  court.   We have            examined them all and conclude that none of the arguments now            offered even arguably points to plain error.                   Lavigne.     Lavigne,  like  Plympton,  urges  that  the                 _______            evidence  was not sufficient to permit a jury to convict him.            The single violation  charged in his case was  of 18 U.S.C.              1512(b)(3)  which  in  pertinent  part  punishes  anyone  who            "knowingly   uses  intimidation   of  physical   force,  [or]            threatens . . . or attempts to do so . . . with intent to   .            .  . hinder,  delay, or  prevent the  communication to  a law            enforcement officer . . . of the United States of information            relating  to  the  commission  or possible  commission  of  a            Federal offense . . . ."                 The evidence  against Lavigne,  taken in the  light most            favorable to the  government, Robles, 45 F.3d at 2, permitted                                          ______            the jury to  find the  following.  Kathleen  Hartman was  the            officer manager  of American Waste  Paper and had  a romantic            connection  to its owner, Frank  Luchka.  The  company was in            bankruptcy  and St.  Germain  persuaded Luchka  to allow  the            company's premises to  be used to store  the stolen trailers.            Hartman  was aware  of these  arrangements and  assisted with            record-keeping   and  other   tasks  concerning   the  stolen            property.                                         -12-                                         -12-                 In February 1991,  Hartman secretly contacted the  Rhode            Island State Police and reported that the site was being used            for  stolen  property.    On April  3,  1991,  the  company's            premises  were raided by the FBI, the state police, and local            police,  and  a number  of  stolen  trailers were  recovered.            Hartman continued to cooperate  confidentially with state and            later with federal agents.  The conduct for which Lavigne was            indicted comprised two episodes.                 First, on the day  of the raid, Luchka and  Hartman were            present  during the search; that evening they met at a nearby            bar and were joined by St. Germain and Lavigne.  With Lavigne            barring Hartman's  exit from the  bar booth, St  Germain told            Hartman that he would have  her silenced if she spoke  to law            enforcement  agents.    As  Hartman went  downstairs  to  the            restrooms,  she met Lavigne who was  returning up the stairs.            Lavigne  stopped and,  apparently  without  saying  anything,            lifted his pant leg to reveal a gun in an ankle holster.                 Second, a week or  so later, Hartman and Luchka  were at            another bar  and again  encountered St. Germain  and Lavigne.            St.  Germain and Luchka  went outside where  St. Germain told            Luchka that he  thought that Hartman had  "blown the whistle"            on the scheme.  When they returned, St. Germain asked Hartman            if she had spoken with anyone and, with an oblique reference,            indicated  that she  would come to  harm if she  did.  During            this warning, Lavigne, who was standing between them with his                                         -13-                                         -13-            foot resting on a bar stool, lifted his pants leg to reveal a            leather holster on his ankle.                 From this evidence alone, the jury was entitled to infer            that   Lavigne  was  deliberately  threatening  Hartman  with            violence if  she cooperated with law enforcement authorities.            Lavigne's pantomime  was patently  a threat of  violence, and            nothing in the  statute requires that  the threat be  verbal.            United States  v.  Balzano, 916  F.2d  1273, 1291  (7th  Cir.            _____________      _______            1990).  On appeal,  Lavigne offers a more antiseptic  version            of what happened,  but we  have reviewed  the transcript  and            conclude that the  jury was entitled to find the  facts as we            have recited them.                  Lavigne raises  a series of objections  based on alleged            misconduct by the prosecution and on the alleged incompetence            of his  trial counsel.  The misconduct  claim is based on the            introduction of testimony  by two FBI agents that Lavigne had            admitted intimidating Hartman; this statement was made during            a polygraph  examination and, it is  argued, therefore should            not  have  been used  by  the prosecution.    The ineffective            assistance claim  rests on trial counsel's  failure to elicit            two prior state felonies  which were subsequently elicited by            the prosecution; the failure of counsel to call two witnesses            who  allegedly would have  exonerated Lavigne;  and counsel's            failure to object to  the introduction of Lavigne's statement            during the polygraph examination.                                           -14-                                         -14-                 As  to  the   statements  made   during  the   polygraph            examination,  there was no error here, let alone plain error.            Although the results of polygraph examinations are  generally            inadmissible, see United States v. Scarborough, 43 F.3d 1021,                          ___ _____________    ___________            1026  (6th  Cir.  1994),  it  was  not  the  results  of  the                                                         _______            examination  that were  introduced,  but  only Lavigne's  own            admissions to the examiners.   Lavigne had signed a waiver of            his right against self-incrimination, and he offers no reason            why the fact that the statements were made during a voluntary            polygraph  examination  should  affect  their  admissibility.            Lavigne's claim of  prosecutorial misconduct is  thus without            merit.                 Absent unusual circumstances, we do not review claims of            ineffective assistance  that have not been  raised before the            trial court.   United States v. Mala,  7 F.3d 1058, 1063 (1st                           _____________    ____            Cir. 1993)  cert. denied,  114 S. Ct.  1839 (1994).   Each of                        ____________            Lavigne's  claims involves  questions  of trial  tactics  and            resulting  prejudice  and  requires inquiry  into  underlying            facts.   We  do not  think that  "the record  is sufficiently            developed to allow reasoned consideration of the claim," id.,                                                                     ___            and   therefore  decline   to  reach   Lavigne's  ineffective            assistance of counsel claim.                 Black.  Black was arrested in the course of delivering a                 _____            portion of a stolen load of Pennsylvania House furniture from            Plympton's farm  to a  flea market in  Revere, Massachusetts.                                         -15-                                         -15-            He later pled  guilty to  two counts, one  charging him  with            participation  in  the  overall  conspiracy  and   the  other            relating to the Revere delivery.  18 U.S.C.    371, 2314.  In            exchange,   the  government  agreed  among  other  things  to            recommend  a  sentence  at  the low  end  of  the  applicable            guideline range  and to file  a downward departure  motion if            Black provided substantial assistance.                   The presentence report computed Black's adjusted offense            level  as 14, based  on the value of  the goods attributed to            Black and on other adjustments (upward  for more than minimal            planning  and  downward  for  acceptance  of responsibility).            U.S.S.G.      2B1.1,  3E1.1.   The  presentence  report  also            computed Black's  criminal history points as  21, placing him            in category  VI, the  highest category.   These calculations,            which  were accepted  by  the district  court, established  a            range of 37 to 46 months' imprisonment.                 At the  outset of  the sentencing hearing,  the district            court  expressed concern  that  the resulting  range did  not            adequately  reflect  Black's  full criminal  history.   After            letting defense  counsel argue  against an  upward departure,            the  district court  pointed out  that at  age 32,  Black had            already accumulated  21 criminal history points,  8 more than            were needed  to place him  in category  VI.   The court  then            reviewed  Black's criminal  history  in detail,  describing a                                         -16-                                         -16-            succession  of offenses  and  penalties starting  at age  18,            Black's juvenile file being sealed:                 At  age 18  assault, disorderly  conduct, malicious                 damage,  larceny,  assault  and  battery.    At  19                 larceny.    Age 20  assault  and battery.    Age 20                 larceny  over  $500.    This is  breaking  into  an                 automobile and stealing a battery and some plumbing                 tools which  the  Defendant got  apparently a  year                 custody and  that counts for  one point.   Age  20,                 disorderly   conduct.     Age  20,   possession  of                 controlled substance which is diazotan.  He got two                 years suspended.  He's  a violator on a preexisting                 suspended sentence.   He  gets two years  to serve.                 That counts for three points.  Age 20, shoplifting.                 Age 20, conspiracy to commit larceny,  larceny over                 $500.  That  counts for  one point.   That's a  one                 year  suspended  sentence,  three years  probation.                 Age  20,  possession  of a  stolen  motor  vehicle.                 Counts for three  points.  One year custody.   This                 is a 1979  Ford econoline van which had been stolen                 which  the   Defendant  was   driving.    Age   20,                 possession   of  marijuana,  one   point,  30  days                 custody.    Age  20,  possession  of  stolen  motor                 vehicle which a number of other charges, possession                 of needle and syringe.  Three years custody.  Three                 points.   Age 21, armed  robbery.  This  is a Dairy                 Mart held up  at gun point  in Warwick.  He  got 30                 years, 11 to serve and 19 suspended.  It counts for                 three points.  Apparently there's a violation there                 on that.  Since January 27 of 1994, age 29, passing                 counterfeit certificates.  That's a counterfeit $20                 bill.   He got  five  years, six  months to  serve.                 That counts  for two.  The armed robbery counts for                 three.    Age  29,  disorderly  conduct,  resisting                 arrest.  Age  30, simple assault.   Counts for  one                 plus  two points  because  the Defendant  committed                 this  offense while  he was  on probation,  and one                 point because he was released from prison less than                 two years prior  to the instant offense.   All this                 in 32 years.                 The district  court then formally concluded that Black's            criminal history  category did  not adequately  represent his            actual  criminal history and departed upward from level 14 to            level  17.  This  increased the guideline  range to  51 to 63                                         -17-                                         -17-            months.  The government recommended a sentence at the low end            of the range, as it  had promised but declined to move  for a            departure under  U.S.S.G.   5K1.1  because Black's assistance            had  not proved  useful.  The  district court  then sentenced            Black to 60 months'  imprisonment, explaining its reasons for            this choice.                 On  appeal, Black's  only challenge  is to  the district            court's decision  to  depart upward.    The "law"  is  simply            stated.   The  guidelines permit  such a departure  where the            court believes  that the  criminal history category  does not            "adequately reflect the  seriousness of the  defendant's past            criminal conduct,"  U.S.S.G.    4A1.3, and this  includes "on            occasion" a  departure even for a category  VI defendant with            an "egregious,  serious criminal  record [for whom]  even the            guideline  range  for Criminal  History  Category  VI is  not            adequate." Id.                       ___                 Putting aside  a procedural  objection that we  think is            without  merit, Black  makes two different  arguments against            the  departure  decision:   the  first  is  a  claim that  no            departure was justified on the present facts.  Since the type            of  departure   involved  is   expressly  permitted   by  the            guidelines,  the question  whether one  was justified  by the            circumstances here turns on  questions of fact, reviewed only            for   clear  error,   and   of  law   application,   reviewed            deferentially under "a  standard of reasonableness."   United                                                                   ______                                         -18-                                         -18-            States v. Diaz-Villafane, 874  F.2d 43, 49 (1st  Cir.), cert.            ______    ______________                                _____            denied, 493 U.S. 862 (1989).            ______                 The facts are essentially undisputed--no one claims that            the court misdescribed Black's criminal history--so the issue            is  one  of reasonable  judgment  in  applying the  departure            criteria  to particular facts.  Black  says that the district            court  acted mechanically,  imposing the  departure basically            because  Black  had  far  more points  than  the  minimum for            category  VI.   This is  not a  complete description  of what            happened:     the   district   judge  mentioned   the   point            differential but  followed this with a  lengthy recitation of            Black's  actual  criminal  history,  which  we  have  already            quoted.                 What this record  showed was that in  a 14-year criminal            career  starting at age 18, Black  had been almost constantly            in  trouble except for one  period spent in  prison; that his            offenses  involved drugs, theft,  repeated physical violence,            and on  one  occasion  firearms;  that  despite  considerable            leniency in punishment at  early stages, he regularly resumed            his  criminal career;  that even  a substantial  sentence for            armed robbery did not dissuade  him from resuming this career            of crime upon his  release; and that he had  committed crimes            while on suspended sentence and probation.                   It  is plain that the district  court thought that Black            had devoted himself  to a  career of crime  which, given  his                                         -19-                                         -19-            still  young age,  was  far from  over.   It followed  that a            sentence  of   three  to  four  years--as   provided  by  the            guidelines--was  not  very   substantial  protection  to  the            community,  nor   likely  to   deter  a  defendant   who  had            effectively shrugged  off an  eleven year sentence  for armed            robbery.  Indeed, the government reports that, when arrested,            Black  allegedly  told the  state  police  detective that  he            "could do the time on his head."                 The  implicit concerns  of the  district court  are ones            deemed pertinent by the cases which  advert to the "frequency            and  repetitiveness of the felonious behavior," United States                                                            _____________            v.  Ocasio,  914 F.2d 330, 335 (1st Cir.  1990), and the risk                ______            of recidivism, United States v. Emery, 991 F.2d 907, 913 (1st                           _____________    _____            Cir. 1993).   It is hard  to quantify these concerns  but, on            this  issue, we think that the district court was entitled to            take note of the fact that Black had over 150  percent of the            points needed for category  VI.  We agree with Black  that in            some cases departures have been based on worse records but do            not think that the  district court's decision to  depart here            was unreasonable.                 It would have been helpful  if these inferences had been            spelled out by the district judge.  Ocasio, 914 F.2d at 335 &                                                ______            n.3.   But we think they  are obvious in the district court's            recitation  of Black's  criminal  history and  certain  other            remarks  made by the judge  at sentencing.  Upward departures                                         -20-                                         -20-            are  serious  business; and,  although  mindful  of the  time            pressures on  the district  courts, we urge  again that  some            expression of reasoning, as well as fact-finding, accompany a            departure.   E.g., Emery, 991 F.2d  at 913.  But  we will not                         ____  _____            remand for an explanation that is so clearly implicit in what            the district court found.                 Black's second argument is  that the degree of departure            was  unreasonable or  at least  inadequately explained.   The            increase from  level 14 to  level 17, given  Black's criminal            history category,  amounted to an increase  in the sentencing            range   which  can  be  measured  in  several  ways:    as  a            percentage, it  is an  increase of  minimums and  maximums of            about one-third,  which sounds  substantial; but in  terms of            months,  it increases  the  ultimate range,  measured by  the            midpoint of  each range,  by about 15  months--something less            than overwhelming.                 The latter figure alone suggests that, by  a standard of            reasonableness,   the  degree   of  the  departure   was  not            disproportionate,  given  Black's  record  and  the  implicit            rationale  of the  district court  for making  any departure.            Even looked at in percentage terms, a 30 percent departure is            not out  of line with past precedent,  using criminal history            points  as a  crude  way of  comparing like  with like.   Cf.                                                                      ___            Emery,  991  F.2d  at  914 (upholding  41  percent,  21-month            _____            departure  for  offender with  20  criminal history  points);                                         -21-                                         -21-            Brown,  899  F.2d  at  96 (upholding  133  percent,  12-month            _____            departure for offender with 20 criminal history points).                   But Black mainly attacks the  degree of the departure on            the ground that the district court did not explain its choice                                                       _______            of three levels  rather than some other  figure.  It  is true            that  the court gave no explicit  explanation directed at the            choice of a particular  figure.  But  at least where a  small            departure  is involved, it  may be  difficult to  provide any            explanation  over and  above that  given for the  decision to                         _______________            depart.  Thus,  we have held  that "a reasoned  justification            for [the] decision to depart"--readily inferred in this case-            -may  also  constitute "an  adequate  summary  from which  an            appellate  tribunal  can  gauge  the  reasonableness  of  the            departure's extent."  Emery, 991 F.2d at 336-37.                                  _____                 In  this case  the  departure, measured  by months,  was            quite  modest and Black's only  practical concern is with why            he did not  receive even less.   It is  hard to know  how the            district court could have explained this choice--to depart by                                                ____            three  levels instead of one  or two--except to  say that the            grounds  for departure  called for  more than  a slap  on the            wrist.   Given the modesty of the departure and its alignment            with prior  cases, such as Emery  and Brown, we do  not think                                       _____      _____            that  the lack of an explanation can be deemed prejudicial or            casts  any   doubt  on  the  facial   reasonableness  of  the            departure.                                         -22-                                         -22-                 Affirmed.                 ________                                         -23-                                         -23-
