                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 93-1089

                    UNITED STATES OF AMERICA,

                            Appellant,

                                v.

                       JOSEPH SCLAMO, JR.,

                       Defendant, Appellee.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Robert E. Keeton, U.S. District Judge]
                                                      

                                           

                              Before

                      Boudin, Circuit Judge,
                                           
                  Coffin, Senior Circuit Judge,
                                              
                    and Stahl, Circuit Judge.
                                            

                                           

  Brien T.  O'Connor, Assistant United States Attorney, with whom A.
                                                                    
John Pappalardo, United States Attorney, was on brief for appellant.
             
  James R. Lemire for appellee.
                 

                                           

                           July 7, 1993
                                           

     COFFIN, Senior Circuit Judge.  This is a governmental appeal
                                 

from a  sentence in  which the  district court  departed downward

from  the  Sentencing  Guidelines.   The  court  determined  that

defendant's family situation revealed an aggravating circumstance

making this an "unusual case" not contemplated by the Guidelines.

Applying the  modified standard of review for such cases recently

announced in United States v. Rivera,  Nos. 92-1749, -2167, slip.
                                    

op. (1st Cir. June 4, 1993), we affirm.

     Defendant Joseph Sclamo, Jr.  was arrested for attempting to

deliver  nine  and  one-half  ounces  of  cocaine  to  undercover

agents.1  He  pled guilty to  a single  count of possession  with

intent  to distribute,  in  violation of  21 U.S.C.    841(a)(1).

Under  the Guidelines,  Sclamo's offense  level was  17,  and his

criminal history category was II.   The district court,  however,

treated  Sclamo's  criminal  history  category as  I  because  it

considered the  higher category to overrepresent  the severity of

defendant's criminal  history.  The government  recommended a 28-

month  sentence, with  36 months  of supervised  release, and  an

assessment of $50.

     Sclamo requested a downward  departure based on his domestic

situation.  For some three years, he had been living with a woman

and  her two children and  had developed a  special and crucially

                    

     1  Sclamo's  arrest stemmed  from his involvement  in a  DEA
operation  targeting his father.  The father was charged with two
counts  of  drug  offenses, to  which  he  pled  guilty, and  was
sentenced with defendant.   The father received a sentence  of 54
months of imprisonment,  36 months of supervised release,  and an
assessment of $100.

                               -2-

important  relationship  with  the  twelve-year-old  son,  James.

Sclamo urged that his  presence at home was  vital to James,  who

was  in need of his  continuing companionship and  guidance.  Two

letters  from James's psychologist  were submitted  with Sclamo's

motion. 

     According to the first letter, written in April, 1992, since

age  5,  James  continually had  been  abused  physically by  his

alcoholic biological father.2   James began to display aggressive

and disruptive behavior at home and in school and was placed in a

behavior  disorder  class.    Eventually,  he  was  diagnosed  as

possessing "attention  deficit  hyperactivity disorder"  and  was

referred to  the psychologist  for individual psychotherapy  on a

weekly outreach basis  to help him develop "more effective coping

skills."

     James's mother divorced  his father  in 1989.   In the  same

year  Sclamo began to live with James's family.  The psychologist

saw Sclamo weekly,  giving him and James's mother  instruction in

parenting  skills  and  behavior  modification  techniques.   The

psychologist praised  Sclamo as "very  supportive, concerned, and

mature in  his judgement and  follow through."   The psychologist

stated that James now  views Sclamo as his stepfather,  with whom

he  has developed  a  "warm  and  trusting  relationship  .  .  .

resulting in a dramatic reduction  in aggressive acting out,"  an

absence of school suspensions, and improved grades.

                    

     2   James's father eventually was subjected to a restraining
order and then given a two-year suspended sentence for abuse.  

                               -3-

     The  psychologist  concluded  that  Sclamo  played  a  major

positive role in James's therapy  and that his continued presence

was   "necessary   for  James's   increasing   progress."     The

psychologist warned that Sclamo's  "removal from the family would

rob  all members of a  critical source of  affection and positive

care and clinically could  trigger a major regression in  James's

stability and emotional development." 

     Six months later, a month before the sentencing hearing, the

psychologist reported  in a  second letter that  James's progress

both at home  and at school was  continuing.  James was now  in a

"main stream class."  The psychologist credited Sclamo's "ongoing

and persistent  efforts . . .  to set clear and  firm limits with

James."   Noting  that Sclamo  "has played  a tremendous  role in

James's progress and continues to be the  only available resource

for  positive male  bonding," the  psychologist recommended  that

defendant be allowed to continue to  live at home, where he could

serve as  a "positive father  surrogate for this 12  year old boy

who   is  most   needy  for   continued  positive   guidance  and

companionship to insure appropriate maturational development."

     Based  on  this  information,  the court  concluded  that  a

downward  departure  was  appropriate.     It  recognized   "that

ordinarily  family circumstances  do not  constitute a  basis for

downward departure" but felt that precedents in which courts have

departed downward "are very  much like this one in which there is

evidence  of   an  exceptional   kind  of  relationship   and  an

exceptional  risk  of harm  to a  child  if that  relationship is

                               -4-

broken."   Tr.  at 22-23.    The court  further credited  the two

reports from the psychologist as constituting 

     a  very compelling  set  of evidence  about a  personal
     relationship that  I don't think there's  any reason to
     believe arose  with  any purpose  of escaping  criminal
     responsibility but has  occurred independently of that,
     and it is, I think, a circumstance beyond in degree and
     nature  those  that  were  taken into  account  in  the
     guidelines.

Id.  at  22.   It accordingly  sentenced  Sclamo to  three years'
   

probation,  with confinement at  home for six  months, subject to

permission from  the Chief  Probation Officer  to leave  home for

work, shopping, and medical attention.

     On appeal, the government contends that family relationships

are  not a  basis  for departure.    It notes  that  imprisonment

necessarily disrupts such  relationships and that  the sentencing

guidelines provide that "[f]amily ties and responsibilities . . .

are not ordinarily relevant"  in determining whether departure is

appropriate.  See  USSG   5H1.6.  The government  further cites a
                 

number of cases in which this court has refused to allow downward

departures  based on  family  circumstances.   See, e.g.,  United
                                                                 

States v. Carr, 932 F.2d 67, 72 (1st Cir. 1991).
              

     The  government  also alleges  that,  even  if departure  is

permitted  based  on  family  ties,  Sclamo's  situation  is  not

sufficiently  compelling to  warrant  leniency.   The  government

points  out that Sclamo is not James's biological father and that

their relationship  has not been longstanding.   Additionally, it

urges that defendant's involvement in distributing cocaine in the

                               -5-

fall  of 1989  justified the recommended  sentence of  28 months'

incarceration.

     The  resolution of  this  appeal is  governed by  our recent

pronouncements  in  United States  v.  Rivera.   As  Rivera makes
                                                           

clear, the Guidelines say only  that family circumstances do  not

ordinarily  warrant departure.    See  slip  op.  at  12  (citing
                                     

U.S.S.G. Ch. 5, Pt.  H).  Thus, while discouraging  departures on

this ground,  the Guidelines recognize that  "special, unusual or

other-than-ordinary circumstances," id. at  16, may be considered
                                       

as a basis for departure.  Indeed, our earlier cases  do not hold

that  district courts lack authority to depart on this ground but

merely illustrate circumstances not sufficiently extraordinary to

warrant  departure.  See, e.g., United States v. Rushby, 936 F.2d
                                                       

41, 43 (1st Cir. 1991).

     We briefly recapitulate the  approach Rivera suggests when a
                                                 

departure from the Guidelines  is requested.  The  district court

first  should ask: "What features of this case, potentially, take

it  outside the Guidelines' `heartland' and make of it a special,

or unusual,  case?"  Rivera, slip op. at 15.  In cases like this,
                           

where the special features are  discouraged, the court should "go

on  to decide  whether  the case  is nonetheless  not `ordinary,'

i.e.,  whether the case differs  from the ordinary  case in which
    

those features are present."   Id.  If the case is  not ordinary,
                                  

the court then may consider departure, deriving whatever guidance

it  can  from  the  Guidelines, but,  ultimately,  "drawing  upon

experience  and  informed judgment,"  id. at  17.   If  the court
                                         

                               -6-

decides to depart,  "it must  explain how the  case (compared  to

other cases where the reason  is present) is special. . .  ." Id.
                                                                 

at 21 (emphasis omitted).

     As  for  our role  in  reviewing  such departure  decisions,

Rivera  modified  our prescriptions  in  United  States v.  Diaz-
                                                                 

Villafane,  874 F.2d 43 (1st  Cir. 1989).   In Diaz-Villafane, we
                                                             

said  that  review of  the  district  judge's determination  that

circumstances   were  "of  a   kind  or  degree   that  they  may

appropriately   be  relied   upon  to   justify  departure"   was

"essentially plenary," id. at 49.  Following Rivera, however,  we
                                                   

now "review  the  district court's  determination of  unusualness

with full  awareness of, and  respect for,  the trier's  superior

feel  for the case, . . .  not with the understanding that review

is plenary."  Rivera, slip op. at  23-24 (quoting Diaz-Villafane,
                                                                

874 F.2d at 50) (internal quotation marks omitted).

     With  this background  and without  repeating the  essential

facts in the two reports credited by the district court, we see a

number of special factors  that transform Sclamo's situation into

an extraordinary one meriting the downward departure.  See, e.g.,
                                                                

United  States v.  Johnson,  964 F.2d  124,  129 (2d  Cir.  1992)
                          

(affirming  departure  for defendant  who  "faced  more than  the

responsibilities  of an ordinary parent,  more even than those of

an  ordinary single  parent" as  sole caregiver  of 4  very young

children);  United States v. Pena, 930 F.2d 1486, 1495 (10th Cir.
                                 

1991) (affirming  departure to  avoid placing infant  children at

risk).

                               -7-

     As an  initial matter, we cannot fault  the district court's

conclusion that  the psychological treatment and  observations of

James were not contrived or fabricated to assist Sclamo.  James's

referral for individual psychotherapy, made by a case worker with

no  connection to  defendant,  predated the  circumstances giving

rise to  this case.   Moreover,  the  psychologist's reports  are

based on a long history of personal observation, interaction, and

treatment  not only  of  James but  of defendant  as  well.   The

district   court,  therefore,   was   entitled   to  credit   the

psychologist's professional judgment  of the critical and  unique

role played by defendant in James's treatment. 

     Turning  to the family ties at issue, we think that Sclamo's

situation is readily distinguished from ordinary cases, where one

can  only speculate about  the stresses  that incarceration  of a

family member might cause.   In this case, there  is evidence not

only that James  already suffers  from a  clinical disorder,  but

that his condition will deteriorate if defendant is incarcerated.

Sclamo has a  track record  of steady and  effective support  and

guidance of James over  a lengthy period during which  Sclamo was

both   instructed  and   monitored  by   a  psychologist.     The

psychologist's  prognosis that  James would  risk  regression and

harm if  defendant were incarcerated amply  supports the district

court's  determination that  Sclamo's  relationship  to James  is

sufficiently extraordinary to sustain a downward departure.  

     We therefore  think that, under our  present more restricted

standard  of review, the decision made by the district court must

                               -8-

be  affirmed.    We acknowledge  that  our  own  analysis of  the

circumstances setting this  case apart from the  ordinary case is

more  lengthy and detailed  than that of the  district court.  In

future cases we would expect, in line with our general discussion

in Rivera, a very deliberate discussion of the factors making the
         

case unusual.  But we see no purpose served in this case, decided

below without the benefit of our recent guidance, in remanding to

make explicit what was implicit.

     Affirmed.  
             

                               -9-
