
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 95-1841                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   FREDERICK HARDY,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Reginald C. Lindsay, U.S. District Judge]                                              ___________________                                                                                      ____________________                                        Before                                Cyr, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                                                                      ____________________             Owen S. Walker for appellant.             ______________             Ralph F. Boyd,  Jr., Assistant United States Attorney,  with whom             ___________________        Donald K.  Stern,  United  States Attorney,  and  Michael  J.  Pelgro,        ________________                                  ___________________        Assistant United States Attorney, were on brief for appellee.                                                                                      ____________________                                   November 8, 1996                                                                                      ____________________                    CYR, Circuit  Judge.    Frederick Hardy  challenges two                    CYR, Circuit  Judge.                         ______________          sentencing  rulings  by  the district  court  which  successively          denied him a downward adjustment for acceptance of responsibility          and  imposed an upward departure  following his trial and convic-          tion  on  three felony  charges.   We  affirm the  district court          judgment.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________          A.   The Offense of Conviction          A.   The Offense of Conviction               _________________________                    On  the evening  of April  18, 1991,  multiple gunshots          rang out on the  grounds of the Lenox Street  Housing Development          in Boston.  Five Boston police officers in plain clothes, members          of the Anti-gang  Violence Unit,  were on routine  patrol at  the          time, and  saw Raymond  Moreno, Stephen Fernandes,  and appellant          Hardy run  from the  area where  the shots had  been fired.   The          officers gave chase on  foot.  Just before submitting  to arrest,          Moreno handed a long, dark, cylindrical object to Hardy, who kept          on running  through the residential neighborhood  adjacent to the          housing development.  Shortly  after the officers overtook Hardy,          but before he  could be subjected  to arrest, he tossed  a loaded          Browning .32 caliber semi-automatic pistol onto the ground.                      Following  Hardy's  arrest, the  officers  retraced his          likely  route from  the shooting  scene to  the arrest  scene and          found  a  fully-loaded,  sawed-off,  twelve-gauge,  double-barrel          shotgun planted barrel-up in  the backyard garden of  a residence          occupied  by  a  family  with  three  young  children.    Nearby,                                          2          Fernandes was arrested while in possession of an unloaded  Helwan          9  millimeter semi-automatic  pistol, later  confirmed to  be the          firearm discharged  at the Lenox Street  Housing Development site          where the police first observed Hardy and two associates.  Later,          Hardy falsely denied knowing  either Moreno or Fernandes, claimed          to be living with his mother, and gave a false home address.          B.   The Trial and First Appeal          B.   The Trial and First Appeal               __________________________                    Hardy  was  charged  with  being a  felon  in  unlawful          possession  of a  firearm,  18 U.S.C.     922(g)(1), as  well  as          unlawful possession of ammunition, id., and with possession of an                                             ___          unregistered firearm, 26 U.S.C.    5861(d).  As Hardy's extensive          criminal record  included three violent felonies  and one serious          drug  offense  since 1985,  the  government gave  notice  that it          intended  to  seek  the  mandatory  minimum  fifteen-year  prison          sentence authorized  under the Armed Career  Criminal Act (ACCA),          18 U.S.C.   924(e); see also  U.S.S.G.   4B1.4.  Following trial,                              ___ ____          Hardy was convicted and sentenced to 262 months in prison.                     While Hardy's first appeal was pending, this court held          that a criminal defendant exposed to an ACCA sentencing  enhance-          ment may  challenge any  predicate state court  conviction during          his  federal sentencing  proceeding even  though his  state court          remedies  have never been exhausted.  United States v. Paleo, 967                                                _____________    _____          F.2d 7, 11-12 (1st  Cir. 1992).  We accordingly  remanded Hardy's          case to the district court for reconsideration in light of Paleo.                                                                     _____          C.   The First Remand and Second Appeal          C.   The First Remand and Second Appeal               __________________________________                                          3                    On remand, the district court again imposed a 262-month          prison  term, after  rejecting Hardy's  claim that  his predicate          state court  convictions were invalid.   United States  v. Hardy,                                                   _____________     _____          829 F. Supp. 478 (D. Mass. 1993).  Hardy again appealed.  Without          reaching  the  sentencing  claims,  this  court  vacated  Hardy's          federal convictions on the  ground that the prosecution had  made          improper  comments  during closing  argument  at  trial.   United                                                                     ______          States v. Hardy, 37 F.3d 753 (1st Cir. 1994).          ______    _____          D.   The Second Remand and Sentencing           D.   The Second Remand and Sentencing                ________________________________                    During the second remand, Hardy  obtained a continuance          and  successfully challenged  two  of the  predicate state  court          convictions.  As  he was no longer subject  to the ACCA mandatory          minimum sentence,  he  then  pled guilty  to  all  three  federal          charges.                    At  the  resentencing,  the district  court  began  its          guideline  calculation with a base offense level (BOL) of 18, see                                                                        ___          U.S.S.G.   2K2.1(a)(1)  (Unlawful Receipt, Possession, or  Trans-          portation  of  Firearms or  Ammunition)  (1990),  then adopted  a          revised presentence  report (PSR) recommendation  that Hardy  not          receive a two-level downward adjustment for acceptance of respon-          sibility,  see  id.    3E1.1.1   The  court set  Hardy's criminal                     ___  ___          history category  (CHC)  at  III (6  points),  by  counting  four                                        ____________________               1Unless otherwise  indicated, we  cite to the  November 1990          guidelines in effect on the date of the offense of conviction.                                          4          unvacated  prior convictions at one point each, see id.   4A1.1,2                                                          ___ ___          and adding two points  because Hardy was on probation at the time          the offense of conviction was committed.  The resulting guideline          sentencing  range (GSR)  for  Level 18,  CHC  III, was  33  to 41          months.                       The district court decided  to make an upward departure          due to Hardy's "ten-year history of grievous antisocial conduct,"          citing eight reasons:   (1)  CHC III did  not adequately  reflect          either the  seriousness of Hardy's  past criminal conduct  or the          likelihood of  recidivism; (2) only one month  before the offense          of conviction, Hardy  had been arrested and  charged with another          "very serious offense"    his and Moreno's shooting and attempted          murder of a  fourteen-year-old boy, Kenneth  Walker, at the  same          Lenox  Street Housing Development; (3)  Hardy was on  bail in the          Walker case at the  time he committed the offense  of conviction;          (4) Hardy had been  arrested and charged with four  violent felo-          nies  between 1985 and 1990, including kidnapping and assault and          battery, which  were not taken into account in the CHC III calcu-          lation since  the state  court  charges had  been dismissed;  (5)          Hardy's two prior state court convictions for assault and battery          against his  girlfriend and another  woman had been  vacated, not          because  Hardy  was  not  responsible for  the  criminal  conduct                                        ____________________               2The four state-court  convictions counted  by the  district          court were:  (1) a 1985  conviction for cocaine possession; (2) a          1988  conviction for assault and battery on a police officer; (3)          a  1990 conviction for drug possession; and (4) a 1990 conviction          for  possession with intent  to distribute cocaine  and heroin at          Lenox Street.                                          5          underlying the  convictions but due to  procedural infirmities at          trial;3 (6) "the [two] weapons used . . . in this federal case [a          sawed-off  shotgun and  semi-automatic pistol]  were particularly          dangerous weapons";  (7) officers of the  Anti-gang Violence Unit          attested that the offense of conviction was part of a long series          of  violent  drug-related  offenses  in  the  same  neighborhood,          committed  by street gangs like the Columbia Point Dogs, of which          Hardy,  Moreno, and  Fernandes were  known  members; and  (8) the          offense  of  conviction  occurred in  an  economically  depressed          neighborhood "where very vulnerable people live."                      The district  court determined that even  a full "hori-          zontal" departure from Level 18, CHC III (33-41 months), to Level          18, CHC VI (57-71  months), would be inadequate to  reflect these          eight factors.  Accordingly, the court determined  upon a "verti-          cal"  upward  departure as  well, from  Level  18, CHC  VI (57-71          months) to Level  24, CHC VI (100-125 months).   The court gauged          its  vertical departure  through reference  to the  121-151 month          (Level 32, CHC I) GSR  which would have been applicable  to Hardy          under  the  then-current   (i.e.,  November  1994)   guidelines.4                                      ____                                        ____________________               3According to the revised PSR, the  1985 assault and battery          charges were based  on evidence  that Hardy, in  a jealous  rage,          kicked his girlfriend in the head and upper body then punched her          in the head before  throwing her over a third-floor balcony.   In          the subsequent incident, he assaulted the same girlfriend and her          sister,  beating both women about their heads and faces.  Hardy's          girlfriend was hospitalized on both occasions.               4The court arrived at  its adjusted BOL of 32  by increasing          the BOL (26)  six levels based  on "various offense  characteris-          tics."  Although the court did not cite to the  particular guide-          line sections,  the government concedes that  the relevant guide-          lines were U.S.S.G.    2K2.1(b)(4) (1994)  (use or possession  of                                          6          Ultimately, the court settled  upon the 120-month prison sentence          from which Hardy now appeals.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                                                  ____________________          firearm  with an  obliterated  serial number)  and    2K2.1(b)(5)          (1994) (use or  possession of firearm in connection  with another          felony offense [i.e., ongoing drug distribution]).                          ____                                          7          A.   Acceptance of Responsibility          A.   Acceptance of Responsibility               ____________________________                    The district court denied  a two-level downward adjust-          ment for acceptance of responsibility, see U.S.S.G.    3E1.1, for                                                 ___          the following reasons:                     There was in fact a  trial of the offense  in                    this  case  four  or so  years  ago,  [during                    which] the defendant denied knowing the code-                    fendant in that case,  and . .  . that . .  .                    does bespeak . .  . failure to accept respon-                    sibility, and then there was an appeal .  . .                    during which there still was no acceptance of                    responsibility, and  . .  . I think  I should                    consider the fact . . . that a plea of guilty                    in this case did not occur . . . until [after                    Hardy's  two  predicate convictions  had been                    set aside in state court.]  I don't criticize                    counsel for undertaking that because it makes                    some difference to the kinds of sentence that                    may be  ultimately imposed in  this case, but                    it strikes me that none of this suggests that                    there  has been  a sincere acceptance  of re-                    sponsibility.          Hardy asserts two challenges to the district court ruling.5                    First, while  acknowledging that he  must establish any          entitlement  to an  adjustment for acceptance  of responsibility,          see United States v. Gonzalez, 12 F.3d 298, 399 (1st Cir.  1993),          ___ _____________    ________          Hardy argues that section  3E1.1 creates a rebuttable presumption          that  a defendant who  has pled guilty has  carried his burden of          proof, even though the record discloses no affirmative manifesta-          tions of remorse.  U.S.S.G.   3E1.1, comment. (n.3) (1994).                                         ____________________               5Sentencing Guidelines interpretations are reviewed de novo,                                                                   __ ____          United  States  v. Bennett,  60 F.3d  902,  904 (1st  Cir. 1995),          ______________     _______          whereas  subsidiary  factual  findings,  including  the  ultimate          determination whether a defendant has sincerely "accepted respon-          sibility"  for the charged  offense, are reviewed  only for clear          error, United States v. Crass, 50 F.3d 81, 83 (1st Cir. 1995).                  _____________    _____                                          8                    This contention  is severely undercut by  the pertinent          guideline  commentary,  however,  which  plainly   provides  that          "[e]ntry of a plea of  guilty prior to the commencement of  trial                                        _____ __                      _____          combined with  truthful admission  of involvement in  the offense          ________ ____  ________ _________          and  related  conduct  will  constitute  significant  evidence of                                 ____  __________  ___________  ________          acceptance of responsibility."   U.S.S.G.   3E1.1, comment. (n.3)          (emphasis added).  The revised PSR  discloses that Hardy, despite          ample  time and  opportunity, has  never truthfully  admitted the                                             _____          facts underlying the offense of conviction, let alone subjective-          ly manifested "candor and authentic remorse."  See United  States                                                         ___ ______________          v. Wheelwright, 918 F.2d 226, 229 (1st Cir. 1990).              ___________                    Moreover, even  assuming Hardy had  truthfully admitted          the  relevant  facts, nothing  in  the commentary  upon  which he          relies remotely indicates that a guilty plea,  even combined with          a truthful admission, see U.S.S.G.   3E1.1, comment. (n.3), gives                                ___          rise  to  a  rebuttable  presumption that  a  two-level  downward          adjustment for acceptance of responsibility will follow.  Indeed,          Hardy's  prolonged  reticence  aside, the  commentary  explicitly          states  that  even the  "significant  evidence  of acceptance  of          responsibility"  generated by  "a  plea of  guilty  prior to  the          commencement  of trial  combined with  truthful  admission," id.,                                                                       ___          "may  be outweighed by conduct of the defendant that is inconsis-          tent  with such acceptance  of responsibility.   A  defendant who                                                           _  _________ ___          enters a guilty plea  is not entitled to an adjustment under this          ______ _ ______ ____  __ ___ ________ __ __ __________ _____ ____          section as a matter of right."  Id.  (1994) (emphasis added); see          _______ __ _ ______ __ _____    ___                           ___          U.S.S.G.   3E1.1(c) & comment. (n.3) (1990).                                            9                    Rather,  the sentencing  court must  engage in  a fact-          intensive  determination based  on all  evidence material  to the          defendant's  acceptance of  responsibility.   We  in turn  accord          great deference to the sentencing court's determination.  See id.                                                                    ___ ___          comment. (n.5); United States v. Royer, 895 F.2d 28, 29 (1st Cir.                          _____________    _____          1990) ("Credibility and demeanor play a crucial role in determin-          ing whether a person is genuinely  contrite," and "the sentencing          judge has the unique opportunity of observing the defendant . . .          and evaluating acceptance of responsibility in a live context.").          Thus,  nothing  can come  from  Hardy's  "rebuttable presumption"          construct, both because  it is legally unsound  and because Hardy          lied to the  police and to a magistrate  judge regarding his lack          of prior association with  codefendants Moreno and Fernandes, and          gave a false home address which has never been recanted.6                                          ____________________               6As a  corollary argument, Hardy  urges a  third remand  for          resentencing because he was  unfairly surprised by the sentencing          court's  refusal  to follow  "accepted"  practice  in the  United          States  District  Court  for  the District  of  Massachusetts  by          allowing an  automatic    3E1.1  reduction to  any defendant  who          pleads  guilty.  Even assuming such a practice, which the govern-          ment  disputes, Hardy's  reliance  upon it  would be  objectively          unreasonable  given the unequivocal guideline provision that "[a]          defendant  who enters a guilty plea is not entitled to a sentenc-          ing reduction under this section as a matter of right,"  U.S.S.G.             3E1.1(c), not to mention  the decisional law  in this circuit,          see United States v. Garcia, 905 F.2d 557, 561 (1st Cir.) ("Down-          ___ _____________    ______          ward adjustments  for acceptance of responsibility  are not auto-          matically  conferred upon  every  accused  who pleads  guilty."),          cert.  denied, 498  U.S. 986 (1990).   Since    3E1.1 makes clear          _____  ______          that the  district court  must assess each  defendant's protesta-          tions of remorse,  it would  be inconsistent with  its spirit  to          permit  defendants to withhold  manifestations of  remorse simply          because  the district court has not explicitly invited them.  See                                                                        ___          Royer,  895 F.2d at  30 (noting that    3E1.1 is  not designed to          _____          encourage "empty platitudes").                                           10                    Second,  Hardy  contends that  he  reasonably refrained          from pleading guilty until  after he had returned to  state court          to  set aside two of his predicate convictions, since the govern-          ment's  decision to invoke the  ACCA otherwise would have exposed          him  to  a possible  life sentence  and  at least  a fifteen-year          sentence,  instead  of  a  ten-year maximum.    Consequently,  he          argues,  the  district court  improperly  relied  on the  delayed          guilty  plea as  a basis  for finding  that he  had not  accepted          responsibility for his crimes.                       It is far  from clear  that the statement  made by  the          district court was intended to convey the message Hardy suggests.          Viewed  in context,  the  statement may  well have  been intended          merely  as a narrative of the prolonged procedural travel of this          case, during which Hardy never uttered a word remotely resembling          remorse.   In  all  events, assuming  the  statement were  to  be          interpreted  as Hardy  suggests, we  conclude that  any resulting          error  was harmless in that it did not affect Hardy's substantial          rights, see  Fed. R. Crim. P. 52(a); United States v. Curran, 926                  ___                          _____________    ______          F.2d  59, 62  (1st Cir.  1991), since  the alternative  basis for          denying the requested   3E1.1 reduction was entirely valid.7                                        ____________________               7See United States v. Nunez-Rodriquez,  92 F.3d 14, 19  (1st                ___ _____________    _______________          Cir.  1996)  (noting that  a  sentencing decision  founded  on an          inappropriate factor may be affirmed if "excision of the improper          ground does not obscure  or defeat the reasoning of  the district          court,"  and we  are "left, on  the record  as a  whole, with the          definite and  firm conviction  that removal of  the inappropriate          ground  would not be likely to alter the district court's view of          the sentence rightfully to be imposed").                                          11                    After his arrest, Hardy lied when he told the police he          had not known codefendant Moreno prior to April 18, 1991, whereas          in fact Hardy and Moreno  had shot Kenneth Walker in March  1991.          In addition,  the record  reveals that  Hardy, after his  arrest,          lied  about not  having possessed  a firearm,  and gave  police a          false  home  address.   Undeterred,  Hardy  argues  that  a false          statement to the  police immediately after  arrest    as  distin-          guished from a  misrepresentation to the probation office  or the          court after  criminal proceedings  have been commenced     should          not be treated  as a failure to  accept responsibility.   We need          venture no opinion on this matter, since Hardy cannot come within          the proposed rule in any event.                    Rather, the  revised PSR  indicates  that though  Hardy          first provided the false home  address to the police,  thereafter          he repeated  it to the United States Pretrial Services Department          and a magistrate  judge.  Moreover,  Hardy lied about  possessing          and concealing  the dangerous firearm (sawed  off shotgun) rather          than assisting in its recovery, and has never recanted.  Finally,          he  attempted to  evade and resist  arrest rather  than surrender          voluntarily.   By  contrast, the applicable  guideline commentary          clearly  identifies the  kinds of  conduct considered  indicia of                                   _____          acceptance of  responsibility:  a "voluntary  and truthful admis-          sion to authorities of involvement in the  offense," a "voluntary          surrender  to authorities  promptly after  commission of  the of-          fense," and "voluntary assistance  to authorities in the recovery          of the  fruits  and  instrumentalities  of  the  offense."    See                                                                        ___                                          12          U.S.S.G.   3E1.1, comment. (n.1(c)-(e)).                      We  emphasize that  it  was  especially appropriate  in          these  circumstances  for the  district  court  to consider  "the          timeliness of  the  defendant's  conduct in  manifesting  .  .  .          acceptance  of responsibility,"  see  U.S.S.G.    3E1.1, comment.                                           ___          (n.1(g)),  particularly  since Hardy  failed  even  to request  a          continuance to  challenge the  predicate state court  convictions          before  his  first trial.   By  ignoring  this plain  option, and          ______  ___  _____ _____          failing  to explain,  Hardy put  the government  to the  needless          expense of trying  him.  See  United States v.  De Leon Ruiz,  47                                   ___  _____________     ____________          F.3d  452, 455 (1st Cir. 1995) (citing U.S.S.G.   3E1.1, comment.          (n.2)  (1994)).    Finally,  the  sentencing  court   assiduously          searched the  record and  observed Hardy's in-court  demeanor for          any indication that he  was truly remorseful.  Instead,  it found          only his  unelucidated guilty plea,  with no mention  of remorse,          and an extensive record of persisting criminal conduct "inconsis-          tent" with genuine remorse.  We find no error.           B.   Upward Departure          B.   Upward Departure               ________________                    A  decision  to depart  beyond  the  prescribed GSR  is          reviewed  for "abuse  of  discretion" only,  see  Koon v.  United                                                       ___  ____     ______          States,      U.S.    ,    , 116 S. Ct. 2035,  2046-47 (1996), and          ______  ____      ___  ___          guided by three  principal inquiries:   (1) whether the  asserted          grounds for departure were  permissible under the guidelines; (2)          if so,  whether the  record evidence adequately  demonstrates the          required criteria; and  (3) whether the  degree of departure  was          reasonable.  See United States v. DeMasi, 40 F.3d 1306, 1322 (1st                       ___ _____________    ______                                          13          Cir. 1994),  cert. denied, 115 S. Ct. 947 (1995).   Hardy assigns                       _____ ______          nine reasons for overturning the upward departure.                1.   Validity of the Departure Criteria               1.   Validity of the Departure Criteria                    __________________________________                    The guidelines prescribe two types of  departure mecha-          nisms.  Section 4A1.3 focuses primarily on past criminal conduct,          and permits an upward  departure if the defendant's pre-departure          CHC,  see  U.S.S.G.    4A1.1,  "does not  adequately  reflect the                ___          seriousness of [his] past criminal conduct or the likelihood that          the defendant will commit other crimes."  Id.   4A1.3.  Normally,                                                    ___          these section 4A1.3 departures are "guided" and horizontal.  That          is, within  the defendant's total  offense level the  court moves          horizontally  across the  sentencing  table through  successively          higher  CHCs until  it  reaches an  appropriate, or  "reflective"          sentencing  range.    Only  in extreme  cases     those involving          egregious past  criminal conduct    may a section 4A1.3 departure          exceed the  GSR prescribed under  CHC VI.   See United  States v.                                                      ___ ______________          Mendez-Colon, 15 F.3d 188, 190 (1st Cir. 1994).8           ____________                    Section  5K2.0, on  the other  hand, permits  an upward          departure  if  the district  court finds  "an  aggravating .  . .          circumstance of a kind, or to a degree, not adequately taken into          consideration  by the  Sentencing Commission  in  formulating the                                        ____________________               8Under  U.S.S.G.    4A1.3  (November  1990), the  sentencing          court  was permitted to depart  beyond CHC VI  to any appropriate          higher  sentence  under    4A1.3  ("unguided"  sentence), whereas          under the current version departures  beyond CHC VI are "guided";          that  is, beyond CHC  VI, sentencing courts are  to move down the          CHC VI column to successively increasing offense levels  until an          appropriate sentencing range is reached.  United States v. Emery,                                                    _____________    _____          991 F.2d 907, 913 n.9 (1st Cir. 1993).                                          14          guidelines."   U.S.S.G.    5K2.0 (quoting  18 U.S.C.    3553(b)).          The  section  5K2.0  departure  mechanism  focuses  primarily  on          "unusual" attributes  of the  offense of conviction,  rather than                    __________  __ ___  _______ __ __________          any   underrepresentation  of  past   criminal  conduct   in  the          defendant's CHC.   Section  5K2.0 departures are "unguided,"  and          functionally "vertical," meaning  that the sentencing  court need          not restrict itself to considering successively higher CHC ranges          along  the "horizontal"  axis in  the  sentencing table,  but may          select  whatever sentence  appropriately  reflects the  "unusual"          circumstances  in the  case.   See  generally  Bruce M.  Selya  &                                         ___  _________          Matthew R.  Kipp, An Examination of  Emerging Departure Jurispru-                            _______________________________________________          dence  Under the Federal Sentencing Guidelines,  67 Notre Dame L.          ______________________________________________          Rev. 1, 39-40 (1991).                    Hardy first argues that the district court committed an          error  of law by relying  on the number  and dangerousness of the          weapons used  by him and his  two associates in the  Lenox Street          shooting spree as grounds for an upward departure.  He points out          that the November 1990 guidelines expressly constitute the number          of firearms a specific offense characteristic under section 2K2.2          (Unlawful Trafficking),  but not  under  section 2K2.1  (Unlawful          Possession), thereby  implicitly rejecting the number of firearms          as a ground for departure under section 2K2.1.  See United States                                                          ___ _____________          v. Enriquez-Munoz, 906 F.2d 1356, 1361 (9th Cir. 1990).  But  see             ______________                                        ___  ___          U.S.S.G.    2K2.1 (1994) (amended version,  designating number of          firearms as  specific offense characteristic).   Hardy also notes          that section 2K2.1(a)(1) and  26 U.S.C.   5861 already  provide a                                          15          twelve-level   sentencing  enhancement  for  the  increased  risk          inherent  in possessing  some  types of  firearms (e.g.,  Hardy's                                                             ____          sawed-off shotgun), see  U.S.S.G.   2K2.1(a), thereby  suggesting                              ___          that the Commission  meant to foreclose  departures based on  the          "dangerousness" of  all other  weapon types (e.g.,  Hardy's semi-                                                       ____          automatic pistol).                      Notwithstanding the explicit consideration given to the          number of  firearms in  U.S.S.G.   2K2.2,  a departure  criterion          cannot  be  deemed  impermissible  in  all  circumstances  unless          categorically foreclosed by the Commission.  See Koon, 116 S. Ct.                                                       ___ ____          at 2051.   The Commission "d[id] not intend to limit the kinds of          factors, whether  or not mentioned  anywhere else  in the  guide-                   _______  __ ___ _________  ________ ____  __ ___  ______          lines, that could  constitute grounds for departure in an unusual          _____          case."  U.S.S.G. Ch.  1, Pt.  A, intro.  comment.(4)(b) (emphasis          added).                    Hardy pled guilty to  certain firearm possession charg-                                                          __________          es.   The reference to  the number  of firearms was  made by  the          district court in the context of its discussion of the heightened          dangerousness associated  with the manner in which  Hardy and his          cohorts  not only possessed but  used their firearms.   See infra                                           ____                   ___ _____          Section II.B.2(b); cf. Enriquez-Munoz,  906 F.2d at 1361 (reject-                             ___ ______________          ing  departure based on number  of weapons and defendant's intent          to cause "greater harm," where  sentencing court made no  finding          of such  intent, and purchase/sale of multiple weapons created no          demonstrably  greater  harm).    The  use  and/or  indiscriminate          disposal of multiple weapons which took place in this case surely                                          16          elevated their dangerousness well above the level associated with          the simple possession of a single firearm.                                            17                    Moreover,  rather than being categorically forbidden as          a departure ground under section 2K2.1, the heightened dangerous-          ness occasioned by the  usage, and indiscriminate abandonment, of          the firearms involved here is encouraged as a departure ground in          appropriate circumstances:                    If  a weapon or dangerous instrumentality was used                                                                  ____                    or possessed in the  commission of the offense the                    __ _________                    court may increase the  sentence above the  autho-                    rized guideline range.  The extent of the increase                    ordinarily  should depend on  the dangerousness of                    the weapon, the  manner in which  it is used,  and                    the  extent to  which it  endangered others.   The                                                                   ___                    discharge of a firearm might warrant a substantial                    _________ __ _ _______                    sentence increase.          See U.S.S.G.   5K2.6 (emphasis added).9            ___                    Finally, the  fact that the  Commission decided against          making  "weapon  type" a  specific  offense characteristic  under          section  2K2.1 in no sense indicates that it intended to preclude          a  judicial  determination  that  certain types  of  weapons  are          inherently more dangerous than others, but simply that possession          of a  particular type of weapon, in and of itself, is not invari-          ably  indicative of  the defendant's  intent.   For example,  the          guidelines permit  a downward adjustment for  the illegal posses-          sion  of a  firearm  intended for  recreational  use only.    See                                                                        ___          U.S.S.G.   2K2.1, comment. (n.2) ("[S]ome rifles or  shotguns may          be possessed for  criminal purposes, while  some handguns may  be                                        ____________________               9Even  though the  disjunctive  employed in    5K2.6  (i.e.,                                                                      ____          "used  or possessed")  might  be read  to  apply to  offenses  of          conviction which  would not  contemplate that the  defendant have          possessed  or used any firearm  at all, its  plain language would          encompass a  firearm possession offense where  defendant not only          passively possessed the firearm,  but also used (i.e., discharged                                                           ____          or recklessly discarded) it in an exceptionally dangerous manner.                                          18          suitable for  recreation. Therefore,  the guideline is  not based          upon  the type of weapon.");  see also id.    2K2.1(b)(1) (citing                                        ___ ____ ___          recreational intent as mitigating sentencing factor).                    Thus, the omission of a specific offense characteristic          relating  to  "weapon  type"  falls far  short  of  a categorical          prohibition.    Accordingly, to  the  extent  a sentencing  court          supportably finds that a  defendant's choice of weapons,  and the                                                                    ___ ___          actual manner  of  its use,  increased  the danger  to  "unusual"          ______ ______  __  ___ ___          levels,  an upward  departure  under U.S.S.G.     5K2.6 would  be          permissible.   See U.S.S.G. Ch. 1, Pt.  A, intro. comment.(4)(b);                         ___          see also, e.g., United  States v. LeBon, 800 F. Supp.  1012, 1017          ___ ____  ____  ______________    _____          (D.  Mass.  1992) (departure  warranted  for  defendant's use  of          semiautomatic weapons).               2.   Existence Vel Non of Departure Criteria               2.   Existence Vel Non of Departure Criteria                    _______________________________________                    We  next inquire  whether the  record facts  adequately          support  each departure  criterion  relied upon  by the  district          court.   DeMasi, 40 F.3d  at 1322; see  supra Section  I.D. Hardy                   ______                    ___  _____          directly challenges the sentencing court's  reliance on:  (i) the          determination that  CHC III  would not adequately  reflect either          the seriousness of Hardy's criminal  history or the likelihood of          recidivism,  see  U.S.S.G.     4A1.3; and  (ii)  three  "unusual"                       ___          offense-related  characteristics of  the  Lenox  Street  shooting          incident,  see  id.     5K2.0, specifically  that  Hardy's  fire-                     ___  ___          arm/ammunition  possession  on April  18,  1991,  facilitated his          ongoing  participation  in  gang-related  activities;  the  Lenox          Street shooting  occurred in a  crowded, low-income  neighborhood                                          19          particularly vulnerable  to crime; and the unusual  level of risk          created  by the  number and  types of  firearms, as  well  as the          manner of their use in the Lenox Street shooting.                      Substantial  deference  is  due  a  sentencing  court's          assessment that  the cumulative circumstances  are unusual enough          to  implicate a  departure criterion,  thereby removing  the case          from the "heartland":                      [T]he district  court must make a  refined assess-                    ment  of the  many facts  bearing on  the outcome,                    informed by its vantage point and day-to-day expe-                    rience  in criminal  sentencing.  Whether  a given                    factor is present to  a degree not adequately con-                    sidered by the Commission,  or whether a  discour-                    aged  factor  nonetheless justifies  departure be-                    cause it is present in some unusual or exceptional                    way, are matters determined  in large part by com-                    parison with the facts  of other Guidelines cases.                    District  courts  have an  institutional advantage                    over  appellate  courts in  making these  sorts of                    determinations, especially  as  they see  so  many                    more Guidelines cases than appellate courts  do. .                    . . "To ignore the district court's special compe-                    tence    about the 'ordinariness' or 'unusualness'                    of a  particular case    would  risk depriving the                    Sentencing  Commission of  an important  source of                    information,  namely, the  reactions of  the trial                    judge  to the  fact-specific circumstances  of the                    case . . . ."            Koon, 116 S. Ct. at 2046-47 (quoting United States v. Rivera, 994          ____                                 _____________    ______          F.2d 942,  951 (1st Cir.  1993) (Breyer, C.J.))  (other citations          omitted).                    a)   Uncounted Past Criminal Conduct (  4A1.3)                    a)   Uncounted Past Criminal Conduct (  4A1.3)                         _________________________________________                    Hardy  challenges the  district court's  finding, by  a          preponderance  of the  evidence, that  he committed  the criminal          conduct  underlying  the  two  assault  and  battery  convictions          vacated  by the state court following his first trial.  See supra                                                                  ___ _____                                          20          note 3.  He uninformatively contends that the only reason he  did          not claim actual innocence  of these charges when he  returned to          state court was that his motions to vacate focused exclusively on          the procedural infirmities  at trial.   Second, he contends  that          the  district court's recidivism  ruling is not  supported by the          record.   He points out that he is no longer a young adult (i.e.,                                                                      ____          in  his early twenties or younger), thus not within the statisti-          cal  class of criminal  defendants most prone  to recidivism, see                                                                        ___          U.S.S.G.    4A1.3, backg'd; United  States v. Fahm,  13 F.3d 447,                                      ______________    ____          450 (1st Cir. 1994),  and further that his street  gang disbanded          after  repeated federal prosecutions.   These arguments fundamen-          tally  misapprehend  the departure  rationale  relied  on by  the          district court.                      Section 4A1.3 specifically encourages upward departures          based  on  "reliable  information" that  a  defendant  previously          engaged in "prior similar adult criminal conduct not resulting in          a conviction," U.S.S.G.    4A1.3(e),10 which plainly  encompasses          charged  conduct  underlying  vacated  convictions.   See,  e.g.,                                                                ___   ____                                        ____________________               10Without citation to authority or  developed argumentation,          Hardy  contends  that the  quoted language  should only  apply to          charges no longer pending against a defendant (i.e.,  not subject                                                         ___          to possible retrial),  and that a defendant need object  to a PSR          description of "prior similar  adult criminal conduct not result-          ing in  a conviction" only  if the PSR states  that the defendant          engaged  in the criminal activity, and not merely that the police          so  reported.   We have  been no  more  successful than  Hardy in          finding support  for either of these conclusory contentions.  See                                                                        ___          United States v.  Zannino, 895  F.2d 1, 17  (1st Cir.)  (invoking          _____________     _______          "the settled appellate rule that issues adverted to in a perfunc-          tory manner, unaccompanied by some effort at developed argumenta-          tion,  are deemed waived"),  cert. denied, 494  U.S. 1082 (1990).                                       _____ ______          Nor do we discern a sound basis in reason or common sense.                                          21          United  States v. Guthrie, 931  F.2d 564, 572-73  (9th Cir. 1991)          ______________    _______          (noting  that  vacated  convictions  may be  considered  under             4A1.3); accord, e.g., Fahm, 13 F.3d at 451  n.3 (affirming use of                  ______  ____  ____          uncharged and unadjudicated criminal  conduct as bases for upward          departures).   As the trier of fact at sentencing, therefore, the          district  court was  permitted to  credit reliable  evidence that          Hardy committed the criminal  conduct underlying the two assault-          and-battery convictions   vacated  during these  proceedings, see                                                                        ___          United States v. Figaro, 935 F.2d 4, 8 (1st Cir.  1991) (sentenc-          _____________    ______          ing  court  "'enjoys  wide  discretion in  determining  both  the          relevance and reliability of sentencing  information'") (citation          omitted).   The unchallenged statement in the revised PSR    that          Hardy  kicked his girlfriend in the head  and upper body with his          shod foot, punched her in  the head, and threw her over  a third-          floor balcony, see supra  note 3, afforded a competent  basis for                         ___ _____          the district court's finding.   Whether or not Hardy  should have          asserted his actual  innocence upon returning to state  court, he          concedes  that he has never denied or objected to the description          in the revised  PSR of  the two violent  assaults underlying  the          vacated convictions, see  United States v. Rosales,  19 F.3d 763,                               ___  _____________    _______          770  (1st Cir.  1994) (court  may credit,  as true  and accurate,          PSR's unchallenged description of past criminal conduct); Figaro,                                                                    ______          935 F.2d at 8.  Nor does Hardy allude on appeal to any exculpato-          ry evidence relating to the vacated convictions.                     The  second claim fares no better, for it would have us          disregard not  only  the two  vacated  convictions but  also  the                                          22          cumulative  evidence  upon which  the  district  court relied  in          determining that Level 18, CHC III, underrepresented the serious-          ness of  Hardy's past conduct  and the likelihood  of recidivism.          Between 1987 and 1989, Hardy was arrested four times for assaults          and/or kidnapping, involving violent attacks in which he various-          ly used  his hands and  feet, a  rock, a stick,  a bottle,  and a          knife against his victims.  See U.S.S.G.   4A1.3(e).  At the time                                      ___          of the offense of conviction, Hardy  not only was on probation in          connection with a prior drug conviction, but also on bail pending          charges (assault  with intent to murder  and firearms possession)          in connection with  his and Moreno's shooting  of Kenneth Walker.          See id.   4A1.3 (departure factors may include whether offense of          ___ ___          conviction  was committed "while on  bail or pretrial release for          another  serious offense");  United States  v.  Diaz-Martinez, 71                                       _____________      _____________          F.3d 946, 952 (1st Cir. 1995).11  The Walker shooting occurred in          the  Lenox Street Housing Development  a mere month  prior to the          offense of conviction.  See Figaro, 935 F.2d at  7 ("[R]ecency of                                  ___ ______          a  prior offense  may  be considered  an  indicator of  increased          likelihood  of  recidivism,  exacerbating  the  seriousness  of a          defendant's criminal history.").   Given his  recent, persistent,          and  escalating record of violent behavior,  see United States v.                                                       ___ _____________          Doe, 18 F.3d  41, 47 (1st Cir.  1994) (noting that departure  was          ___          warranted  where defendant's  past criminal  conduct demonstrated          "significantly  unusual penchant  for  serious criminality"),  we                                        ____________________               11As the government  aptly notes, Hardy was under  some sort          of court supervision at the time of almost all his prior arrests.                                          23          find no abuse of discretion in the district court's decision that          an upward  departure was warranted because  Hardy's pre-departure          CHC underrepresented the seriousness of his past criminal conduct          and the likelihood of recidivism.  See Koon, 116 S. Ct. at  2046-                                             ___ ____          47  (holding  that district  court  is  entitled to  "substantial          deference"  in its  determination that  particular facts  of case          implicate a departure factor).                    b)   Offense-Related Characteristics (  5K2.0)                    b)   Offense-Related Characteristics (  5K2.0)                         _________________________________________                    Similarly, we find  little merit in the  claim that the          sentencing court abused its discretion in finding three "unusual"          offense-related characteristics cumulatively  adequate to  remove          Hardy's  case from the "heartland" of section 2K2.1 cases.  Given          their recognized utility and ubiquity in a very broad spectrum of          criminal  activities,  firearms  presumably may  be  possessed in          circumstances posing  widely divergent degrees  of dangerousness.          Accordingly, it is not apparent to us that the Sentencing Commis-          sion attempted, let alone managed, to devise section 2K2.1 with a          view to  the extraordinary dangers  posed by gang  members indis-          criminately  shooting  and   discarding  particularly   dangerous          firearms in crowded inner-city residential areas.12                                         ____________________               12Hardy argues that street  gangs are such a "fact  of life"          in the inner city that the Commission  could not but have antici-          pated that  a large  percentage of  criminal defendants  would be          street gang members.   Of  course, the focus  of the  "heartland"          inquiry is not nearly  so broad.  Instead, sentencing  courts are          to inquire  whether one reasonably would expect an unusual number          of defendants  convicted of  firearm/ammunition possession to  be          gang  members.  See,  e.g., Koon, 116  S. Ct.  at 2052 (rejecting                          ___   ____  ____          "career  loss" as downward departure criterion  for purposes of            2H1.4,  since  it is  not  "unusual"  for  many public  officials          convicted of civil rights violations to lose their jobs).                                          24                    Hardy and his associates  repeatedly discharged a semi-          automatic  weapon  at  nighttime  within  a  crowded  residential          housing development  and, while fleeing  from the scene  to evade          arrest, Hardy planted a loaded sawed-off shotgun barrel-up in the                                                           _________          backyard of a residence where children lived and played.  Without          deciding whether  it would suffice  as an independent  ground for                                                    ___________          departure,  we  think  the  district court,  in  these  egregious          circumstances, did  not abuse  its discretion by  concluding that          crowded,  low-income, inner-city  neighborhoods are  likely as  a          rule to be  more vulnerable to the hazards posed by such reckless          and indiscriminate criminal uses of firearms.                    Lastly,  the record  includes  affidavits from  law en-          forcement  officers  describing  Hardy's,  and  his  associates',          lengthy affiliation with the Columbia Point Dogs, a Boston street          gang  with  a  conspicuous  history of  inter-gang  violence  and          illicit drug distribution in  the Lenox Street area.   The record          further supports the conclusion that on April 18, 1991, Hardy and          his associates possessed the semi-automatic weapons and sawed-off          shotgun  for the  purpose  of facilitating  their gang's  ongoing          terrorization of the Lenox  Street neighborhood in furtherance of          its drug  distribution operations.   See, e.g., United  States v.                                               ___  ____  ______________          Sweeting,  933  F.3d  962,  966-67 (11th  Cir.  1991)  (affirming          ________          defendant's  ongoing connection  to  street  gang as  appropriate          ground for departure); accord  United States v. Thomas, 906  F.2d                                 ______  _____________    ______          323, 328 (7th Cir. 1990).  Accordingly, we find no manifest abuse          of  discretion by the  district court.   See Koon, 116  S. Ct. at                                                   ___ ____                                          25          2046-47.                 3.   Reasonableness of Degree of Departure               3.   Reasonableness of Degree of Departure                    _____________________________________                    Finally, Hardy argues that the  section 4A1.3 departure          was  unreasonable in  degree  as a  matter  of law,  because  the          district court  proceeded  directly from  Level 18,  CHC III,  to          Level 18,  CHC VI, without  either considering or  explaining why          the sentencing range prescribed at CHC IV or CHC V was inadequate          to  reflect the seriousness of his past conduct or the likelihood          of recidivism.   See United States v.  Tropiano, 50 F.3d 157, 162                           ___ _____________     ________          (2d Cir. 1995); supra  Section II.B.1 (contrasting "unguided" and                          _____          "guided"  departures).   He  further  argues  that section  4A1.3          rarely permits a sentencing court to depart beyond the sentencing          range  prescribed by CHC VI based on an "egregious" past criminal          record, and, as such, it  constitutes a "discouraged" ground  for          departure.                     We need not reach either of  these arguments, since the          departure decision was  not founded on section 4A1.3  alone, cf.,                                                                       ___          e.g.,  Fahm,  13 F.3d  at 450  &  n.2 (involving  departure based          ____   ____          exclusively  on   4A1.3 criteria), but on both sections 4A1.3 and          5K2.0.  See  United States v.  Aymelek, 926 F.2d  64, 69-70  (1st                  ___  _____________     _______          Cir. 1991) (noting  that    5K2.0 and 4A1.3 need  not be an "'ei-          ther/or' proposition," and  that both  may be used  to support  a          single departure decision).  The district court relied in part on          some offense-related  attributes (e.g., number  and dangerousness                                            ____          of  weapons)  independently  sufficient  to  justify an  unguided          vertical  departure under  section  5K2.0.   In determining  such                                          26          "mixed" departures, no useful purpose is served by insisting that          the  sentencing court  adhere to  all section  4A1.3 formalities,          only to countenance its "unguided" discretion to make  an "appro-          priate"  non-horizontal  departure  under  section  5K2.0.    See                                                                        ___          Figaro, 935  F.2d at  8-9 (rejecting "leap-frogging"  argument in          ______          "mixed"    4A1.3-5K2.0 case).                    Finally,  Hardy's   protestations  notwithstanding,  we          cannot conclude  that the  degree of departure  was unreasonable.          See DeMasi, 40 F.3d at 1322.   A sentencing court is not required          ___ ______          to "dissect its departure decision, explaining in mathematical or          pseudo-mathematical terms each microscopic choice made."   United                                                                     ______          States v. Rostoff, 53 F.3d 398, 408 (1st Cir. 1995).   Similarly,          ______    _______          the reasonableness vel non  of the degree of departure  need "not                             ___ ___          [] be determined by rigid  adherence to a particular  mechanistic          formula,  but by an evaluation of 'the overall aggregate of known          circumstances.'" Figaro,  935 F.2d at 9  n.2 (citations omitted).                           ______          While the departure in this case is indeed substantial (300%), we          have  affirmed larger ones. See Rostoff, 53 F.2d at 411 (collect-                                      ___ _______          ing  cases affirming  upward departures ranging  from 165  to 380          percent).   Further, the district  court "checked" the  degree of          its  departure  by  calculating the  hypothetical  sentence Hardy          would have received had he been sentenced under the November 1994          guidelines (121-151  months), on  the theory that  the Commission          had since incorporated  many of the offense-related  characteris-          tics that formed the  bases for the district court's  decision to                                          27          depart in this case.13  Given Hardy's persistent ten-year history          of violent anti-social behavior, as  well as the dangerousness of          his conduct on  April 18,  1991, in possessing  and abandoning  a          particularly dangerous firearm in a residential  neighborhood, we          cannot  say that  the  degree of  the  departure imposed  by  the          district court was not "appropriate" in the circumstances.                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    For the foregoing reasons,  the district court judgment          is affirmed.             ________                                        ____________________               13Hardy argues that the district court erred in this regard.          The government  concedes that the court  incorrectly enhanced the          hypothetical offense level two levels by relying on the fact that          one of Hardy's weapons  had an obliterated serial number.   Thus,          the correct hypothetical total offense level should have been 30,          not 32.   The error was  harmless, however, since the  court also          assigned Hardy  a CHC I, Level 32, rather than CHC III, Level 30.          Both prescribe a sentencing range of 121-151 months.                                            28
