                Not for Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                        For the First Circuit

No. 02-2240

                      UNITED STATES OF AMERICA,
                              Appellee,

                                      v.

                           EDWARD J. CRONIN,
                         Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Joseph L. Tauro,           U.S. District Judge]


                                   Before

                      Selya, Circuit Judge,
          Coffin and Porfilio,* Senior Circuit Judges.


     Francis J. DiMento, with whom DiMento & Sullivan and Jason A.
Kosow were on brief, for appellant.
     Samuel W. Buell, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.



                               May 14, 2003




____________
*Of the Tenth Circuit, sitting by designation.
                Per Curiam. At sentencing in this case, the defendant

sought      a    downward   departure    on    a    number    of   stated      grounds.

Although these included several familiar departure categories, the

district court said that "as a matter of law [it] ha[d] no power to

grant [the] request for downward departure."                       In context, this

statement partakes of the same inherent ambiguity as the comparable

statement made by the same judge in United States v. Rodriguez, No.

02-1861 (1st Cir. Apr. 30, 2003).                   For all practical purposes,

then, the disposition of this appeal is controlled by our opinion

in Rodriguez.         We therefore vacate the defendant's sentence and

remand to the district court for further proceedings consistent

with Rodriguez.

                On   remand,    the   district      court    may   either      essay   a

departure, making factual findings sufficient to justify such a

step, or decline to depart and say, as to each of the proffered

grounds for departure, whether its decision rests on a categorical

rejection of the reason offered (because the court deems it legally

unavailable) or whether, accepting or at least not categorically

rejecting the ground, it thinks that "degree," lack of persuasive

proof, or other considerations do not justify a departure.                           The

district court should then resentence the defendant and, if either

side   is       dissatisfied,    that   side       can   appeal    so   long    as   the

sentencing determination entails an appealable issue.




                                         -2-
          We need go no further.   We take no view, at this time, as

to whether the facts proffered by the defendant would, if proven,

justify the district court in departing downward.     That judgment

cannot be made in a vacuum, but, rather, requires particularized

factual findings.



          Vacated and remanded.




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