                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                             

No. 92-1619

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                        CHARLES E. EMERY,

                      Defendant, Appellant.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

           [Hon. Morton A. Brody, U.S. District Judge]
                                                     

                                              

                              Before

                       Selya, Circuit Judge,
                                           

                 Friedman,* Senior Circuit Judge,
                                                

                     and Cyr, Circuit Judge.
                                           

                                              

     Robert A. Costantino for appellant.
                         
     Margaret  D. McGaughey,  Assistant  United States  Attorney,
                           
with whom Richard  S. Cohen, United States Attorney,  and Raymond
                                                                 
C.  Hurley, Assistant United States  Attorney, were on brief, for
          
appellee.

                                              

                          April 28, 1993

                                              

                
*Of the Federal Circuit, sitting by designation.

          SELYA, Circuit Judge.   This sentencing appeal presents
          SELYA, Circuit Judge.
                              

two  issues for our determination.1  We must consider (1) whether

an attempted escape from state custody prior to the initiation of

a federal investigation  into the offense of conviction can serve

as  a  basis  for  enhancing  a  defendant's sentence  under  the

obstruction-of-justice  guideline,  U.S.S.G.     3C1.1;  and  (2)

whether the facts at  bar justify a substantial  upward departure

from  the guideline  sentencing range  (GSR).   Finding  both the

enhancement and the departure to be lawful, we affirm.

I.  BACKGROUND

          Defendant-appellant  Charles  E.  Emery  met  Thomas H.

Schmoock  when the two men were  serving overlapping sentences at

the  state  penitentiary  in  Thomaston, Maine.    Appellant  was

released in late April of 1991 and Schmoock went free a few weeks

later.   On May  28, 1991,  the  pair began  executing a  complex

check-kiting scheme.  

          In the scheme's preliminary  stage, one of the culprits

posed  as  an agent  of the  Internal  Revenue Service  (IRS) and

solicited information  from an  unsuspecting dupe, one  Thomas E.

Mitchell.   Emery and Schmoock used this information to procure a

copy  of  Mitchell's  birth  certificate;  they  used  the  birth

certificate to obtain a  driver's license bearing Mitchell's name

but Emery's photograph; and they used the license to open several

                    

     1Except where otherwise indicated, all references are to the
November, 1991 edition of the guidelines, which were in effect at
the  time of sentencing.  See, e.g., United States v. Harotunian,
                                                                
920 F.2d 1040, 1041-42 (1st Cir. 1990).

                                2

checking accounts  in Mitchell's name at  federally insured banks

in Maine and Massachusetts.

          In the scheme's second  phase, Emery deposited a number

of  forged checks drawn on funds of  Lisa and David Holt into the

newly opened accounts.2 He and Schmoock then  began kiting checks

in escalating  amounts among  the three bogus  Mitchell accounts.

Fortunately,  bank officials soon caught  the scent.   On June 6,

1991, officers  of the Sanford, Maine  police department arrested

both  men.   They promptly  attempted to  escape from  the county

jail,  but their escape attempt was no more successful than their

check-kiting swindle.  

          Although no  federal investigation had  been mounted to

this  point, one  followed  shortly.   On  November 21,  1991,  a

federal  grand  jury  indicted  appellant  on  a  gallimaufry  of

charges.   He pleaded guilty to impersonation of an IRS agent and

bank  fraud.  See 18 U.S.C.    912,  1344 (1988 &amp; Supp. II 1990).
                 

At sentencing, the court set the base offense level (BOL) at six,

see U.S.S.G.    2F1.1 (establishing BOL for  bank fraud),3 raised
   

it seven levels  because of the dollars in issue,  see U.S.S.G.  
                                                      

2F1.1(b)(1)(H) (providing  for a  seven-level  increase if  fraud

involves  $120,000 or  more  but less  than $200,000),  added two

levels because the crime required more than minimal planning, see
                                                                 

                    

     2The checks, bearing the imprimatur of a New Hampshire bank,
were blank when stolen from the Holts' home several days earlier.

     3Because the  impersonation count carried the  same BOL, see
                                                                 
U.S.S.G.     2J1.4,  it  became irrelevant  to  establishing  the
offense   level  in  this   multiple-count  case.     See  id.   
                                                              
2J1.4(c)(1).

                                3

U.S.S.G.   2F1.1(b)(2)(A), added  two more levels for obstruction

of justice, see U.S.S.G.    3C1.1, and subtracted two  levels for
               

acceptance of responsibility, see  U.S.S.G.   3E1.1.  Appellant's
                                 

adjusted offense level was, therefore, fifteen.  

          Under the guidelines, the GSR is determined by plotting

the  intersection of two lines:   the adjusted  offense level and

the  defendant's  criminal history  category (CHC).   The  CHC is

measured  in terms of assigned criminal history points; it ranges

from I (for a person with fewer than two criminal history points)

to VI (for a person with thirteen points or more).   See U.S.S.G.
                                                        

Ch.5, Pt.A  (sentencing table).   Appellant sported  an extensive

criminal history involving an assortment of violent felonies and,

more  recently,  some less  serious  peccadillos.   His  score of

twenty  criminal  history  points surpassed  the  thirteen points

needed to place him in CHC VI.  The GSR was, therefore, forty-one

to  fifty- one  months.   See  id. (offense  level  15; CHC  VI).
                                  

Abjuring  a sentence within  the GSR the  district judge departed

upward, imposing an incarcerative sentence of seventy-two months.

          In this appeal, appellant bemoans both the obstruction-

of-justice enhancement and the upward departure.  We address each

lamentation in turn.

II.  OBSTRUCTION OF JUSTICE

          Appellant does not challenge the factual basis on which

the  district  court  found  an  obstruction  of  justice     the

probation officer's report, credited  by the district court, made

manifest appellant's  attempt to  escape from official  custody  

                                4

but,  instead,  posits  that   conduct  otherwise  sufficient  to

constitute an obstruction of justice under the federal sentencing

guidelines   an attempted escape   is inoculated against such use

if  it occurs prior to the initiation of a federal investigation.
                                                  

The government  seeks to rebut  this theorem  in three ways.   It

avers that the appellant  failed properly to preserve the  point,

that the decision to  depart rendered the  obstruction-of-justice

enhancement moot, and that,  in any event, the court  below acted

within its  lawful authority  in decreeing  the enhancement.   We

elect to analyze the point in terms of the prosecution's last two

rebuttal arguments.4

                          A.  Mootness.
                                       

          We reject the government's asseveration that the upward

departure  renders the  obstruction-of-justice adjustment  moot. 

Had the  district court eschewed the disputed adjustment, the GSR

would have been thirty-three  to forty-one months.   See U.S.S.G.
                                                        

Ch.5, Pt.A (sentencing table)  (offense level 13; CHC VI).   When

an adjustment in the offense  level increases the top end  of the

GSR, and an unguided upward departure ensues, the adjustment,  at

least potentially, has more than an academic effect on the actual

                    

     4We  waste no time in regard to the prosecution's attempt to
conjure up a procedural  default.  Its reasoning in  this respect
is  premised  largely  on  an extemporaneous  suggestion  by  the
Assistant United States Attorney during the sentencing hearing to
the effect that the  federal probe might have started  before the
date of the attempted escape   a comment which went unanswered by
defense  counsel.    Having read  the  record  carefully, we  are
convinced that the government's waiver claim cannot withstand the
most  mild scrutiny.   Appellant fully preserved  the "no ongoing
federal investigation" point.

                                5

sentence because the proportionality of the departure to the  GSR

is a salient factor  to be considered in judging  the departure's

reasonableness.   See United States v. Ocasio, 914 F.2d 330, 337-
                                             

38  (1st Cir.  1990).   Accordingly, we rule  that a  decision to

depart  does  not,  as  a  general  rule, render  moot  questions

concerning the  appropriateness of the  calculations underbracing

the district court's computation  of the GSR.  See  United States
                                                                 

v. Mondaine, 956  F.2d 939, 943 (10th Cir. 1992)  (holding that a
           

district court's  downward departure under section  4A1.3 did not

moot  the defendant's argument that he was entitled to a downward

adjustment in the BOL).   Consequently, the adjustment is zoetic,

not moot; and the  defendant has standing  to protest it in  this

appeal.5 

                       B.  The Enhancement.
                                           

          We  turn now  to  the enhancement  itself.   We  do  so

mindful that in cases where, as here, an objection to a guideline

enhancement  raises a pure  question of law,  appellate review is

plenary.   See United States v.  St. Cyr, 977 F.2d  698, 701 (1st
                                        

Cir. 1992); United States v. Bell, 953 F.2d 6, 7 (1st Cir. 1992).
                                 

          We begin  with the language of  the relevant guideline.

It requires  sentencing courts to  jack up a  defendant's offense

                    

     5We recognize, of course, that  if the attempted escape from
state  custody could not furnish a legally cognizable basis for a
section 3C1.1 adjustment, it might then furnish a springboard for
departing upward.  Nevertheless, we are unprepared to say, absent
an express statement  by the district court,  that if appellant's
legal  argument foreclosed the  two-level enhancement,  the court
would simply have compensated for its inability to ratchet up the
offense  level by boosting  the ultimate departure  sentence to a
corresponding degree. 

                                6

level  if  "the defendant  willfully  obstructed  or impeded,  or

attempted to  obstruct or  impede, the administration  of justice

during  the  investigation,  prosecution,  or sentencing  of  the

instant  offense."   U.S.S.G.    3C1.1.    The commentary  to the

guideline makes clear that "escaping or attempting to escape from

custody before  trial or sentencing" falls  within the definition

of obstructive or impeding  conduct.  U.S.S.G.    3C1.1, comment.

(n.3(e)).  The case law is  in the same vein.  See  United States
                                                                 

v. Amos,  984 F.2d 1067, 1072 (10th  Cir. 1993); United States v.
                                                              

Melton, 970 F.2d 1328, 1335 (4th Cir. 1992).
      

          The  slightly  more  difficult  task  is defining  when

conduct  can be said to have occurred "during the investigation .

.  . of  the  instant  offense."    Appellant  theorizes  that  a

suspect's conduct,  no matter  how deplorable, cannot  obstruct a

non-existent investigation,  and that,  therefore, if  no federal

probe  has  begun,  there  can  be   no  obstruction  within  the

guideline's  reach.   This  argument  has  a certain  superficial

allure, especially because the inclusion of the term "the instant

offense"  in section 3C1.1 indicates that there must be some link
                                                            

between  the obstruction  and  the federal  crime  for which  the

affected  defendant is  to  be sentenced.   See  generally United
                                                                 

States v. Yates, 973 F.2d 1, 4-5 (1st Cir. 1992).  
               

          Be that as it may, several different reasons lead us to

conclude that  appellant's argument cannot prevail.  In the first

place,  the  guidelines should  be  read in  a  common-sense way.

Doing so  here  strongly  suggests  that  the  provision  may  be

                                7

triggered  if, notwithstanding  the  lack of  an ongoing  federal

investigation,   there  is   a  close   connection  between   the

obstructive conduct and the offense of conviction.  In this case,

the  connection   is  skin   tight:    the   behavior  underlying

appellant's arrest by local gendarmes   using  false documents to

open a series of bank accounts and withdraw funds to which he had

no lawful  claim   is the  very essence of the  offense for which

the  district court  sentenced  him.   Since appellant  willfully

sought to  avoid the  consequences of  his felonious  conduct, it

would  be passing strange to reward him merely because he managed

to  engineer  his  attempted   escape  just  before  the  federal

investigation formally began.             

          We also believe it is important that appellant's escape

attempt  would  likely  have  weighed  against  him in  the  pre-

guidelines world.  See, e.g., United States v. Fox, 889 F.2d 357,
                                                  

360-61 (1st Cir. 1989)  (explaining that "relevant conduct," such

as  that occurring in the course of attempting to avoid detection

or  responsibility for an offense,  is the sort  of conduct "that

courts typically  took into account when sentencing  prior to the

Guidelines'  enactment") (citation  and internal  quotation marks

omitted);  see also United States  v. Wise, 976  F.2d 393, 398-99
                                          

(8th Cir. 1992) (en banc), cert. denied,  113 S. Ct. 1592 (1993).
                                       

We have often recognized that pre-guidelines precedent can have a

definite  role  in  resolving  interpretive questions  under  the

guidelines.   See, e.g., United  States v. Blanco,  888 F.2d 907,
                                                 

910  (1st Cir.  1989)  (acknowledging that  adjustment provisions

                                8

represent the  Sentencing Commission's attempt to  tie punishment

to  real,   rather  than  charged,  conduct,   and  indicate  the

Commission's  recognition  of   the  "desirability  of  emulating

typical pre-Guidelines practice" in this respect).  We think this

principle has pertinence  in the situation at hand:   there is no

reason  to  assume that  the  Sentencing  Commission intended  to

supplant the long-settled praxis of awarding stiffer sentences to

those who defy official custody. 

          In the third place, the  case law supports the district

court's  action.    The  Ninth  Circuit  has  held  squarely that

obstructive  conduct   engaged   in  during   an  ongoing   state

investigation but  prior to the  formal initiation  of a  federal

probe can form the  basis of an enhancement under  section 3C1.1.

See United States  v. Lato,  934 F.2d 1080,  1082-83 (9th  Cir.),
                          

cert. denied,  112 S. Ct. 271  (1991).  A number  of other courts
            

have  apparently  adopted  this   view  sub  silentio,  upholding
                                                     

obstruction-of-justice enhancements despite the fact  that only a

state  or  local  indagation was  underway  at  the  time of  the

enhancement-producing event.  See, e.g., United States v. Dortch,
                                                                

923 F.2d  629, 632 (8th Cir. 1991);  United States v. Rogers, 917
                                                            

F.2d 165, 168  (5th Cir. 1990) (per curiam), cert. denied, 111 S.
                                                         

Ct.  1318 (1991); United States v. Roberson, 872 F.2d 597, 609-10
                                           

(5th Cir.), cert. denied, 493 U.S. 861 (1989).   
                        

          Finally, the commentary to the guidelines is hospitable

to the conclusion that we  reach today.  It refers to  attempting

escape "from custody," misleading "a law enforcement officer" and

                                9

obstructing   "an  official  investigation,"  U.S.S.G.     3C1.1,

comment.    (n.3), without  any  limitation  to federal  custody,
                                                       

federal officers,  or official federal investigations.   We think
                                      

that the Sentencing Commission's repeated employment  of generic,

all-encompassing  terms is  a  telltale, indicating  how  section

3C1.1 should be construed.  Cf. United States v.  Fiore, 983 F.2d
                                                       

1,  2  (1st Cir.  1992) (discussing  degree  of deference  due to

Sentencing  Commission's view  of a  guideline provision),  cert.
                                                                 

denied,     S.  Ct.     (1993); United States v. Weston, 960 F.2d
                                                       

212, 219  (1st Cir. 1992) (explaining that  application notes and

commentary   "are  important   interpretive  aids,   entitled  to

considerable respect").  

          In sum, the obstruction-of-justice enhancement rests on

the rationale  that "a defendant who commits a crime and then . .

.  [makes] an  unlawful attempt  to avoid responsibility  is more

threatening  to  society and  less deserving  of leniency  than a

defendant who  does not  so defy" the  criminal justice  process.

United  States v.  Dunnigan, 113 S.  Ct. 1111, 1118  (1993).  The
                           

threat that a defendant poses is not lessened by the happenstance

of  fleeing  state  rather  than  federal  custody,  nor  is  the

defendant's claim  to leniency strengthened by that happenstance.

Thus,  consistent  with  the   Dunnigan  Court's  rationale,  the
                                       

Sentencing  Commission's  discernible  intent,  a  traditionalist

approach to sentencing, and the weight of authority, we hold that

so long as some official investigation is underway at the time of
               

the obstructive  conduct, the absence of  a federal investigation
                                                   

                                10

is  not an  absolute bar  to  the imposition  of a  section 3C1.1

enhancement.6   The  instant  case falls  comfortably within  the

zone in which such an enhancement is permissible. 

III.  THE UPWARD DEPARTURE

          The  second arrow  in  appellant's quiver  targets  the

upward  departure.    We   examine  such  departures  within  the

tripartite framework  erected in United States v. Diaz-Villafane,
                                                                

874 F.2d 43, 49-50 (1st Cir.), cert. denied, 493 U.S. 862 (1989).
                                           

We  first review de novo whether the circumstances relied upon by
                        

the  sentencing court  are,  as  a  legal matter,  sufficient  to

justify  a  departure; we  then  apply  clear-error oversight  to

determine  whether these  circumstances, if  conceptually proper,

actually exist in  the particular case;  and, finally, we  review

the  direction and  degree of  the departure  for reasonableness.

See id. at 49; see also United States v. Trinidad-Lopez, 979 F.2d
                                                       

249, 252 (1st Cir. 1992); Unite States v. Brown, 899 F.2d 94, 96-
                                               

97 (1st Cir. 1990).

          Explicitly conceding that the  first two prongs of this

test  are  satisfied  here,  appellant  assails  the  departure's

                    

     6We are aware that  one court has held that  an obstruction-
of-justice adjustment may lie even if no investigation   federal,
state, or  local   is in  progress.  See United  States v. Barry,
                                                                
938 F.2d  1327, 1334-35 (D.C.  Cir. 1991).  Although  we need not
reach this question, we view Barry's continued vitality with some
                                  
skepticism.   For  one thing, amendments  to the  commentary have
deleted much of the language relied upon by the Barry court.  See
                                                                 
U.S.S.G. App.  C at amend. 347.   For another thing,  the text of
the  obstruction section, on its face, seems to require that some
investigation be underway.  See U.S.S.G.   3C1.1; see also United
                                                                 
States  v Kirkland, 985 F.2d 535, 537-38 (11th Cir. 1993); United
                                                                 
States v. Luna, 909 F.2d 119, 120 (5th Cir. 1990) (per curiam).
              

                                11

magnitude.     He  contends   that  the  district   court  failed

sufficiently  to justify the degree of its departure and that the

sentence imposed  is beyond the  bounds of  reasonableness.   His

contentions are insubstantial.

                       A.  Stating Reasons.
                                           

          It is  true  that a  sentencing  court must  provide  a

statement of the  reasons undergirding a departure  from the GSR.

See 18 U.S.C.   3553(c) (1988).   Here, however, the lower  court
   

honored  the  statutory  imperative,  furnishing  three  specific

reasons for the  departure.  It found that (1)  there was a great

likelihood   of  recidivism,7  (2)  appellant's  record  included

several  offenses for which  he had received  no criminal history

points, yet,  even so, his criminal history score far outstripped

what was  necessary to place him  in CHC VI, and  (3) appellant's

record  also revealed  sentences of  substantially more  than one

year  imposed as  a  result of  independent  crimes committed  on

different  occasions.  Once the court gave so precise a statement

                    

     7Appellant's  offhand  suggestion  that the  district  court
lacked a factual basis for this conclusion is jejune.  The  court
supportably found  that appellant  began planning the  offense of
conviction  while still  in prison  and embarked upon  it "almost
immediately  upon  release."   The  court  could reasonably  have
believed that so brief  an interval between being a  prisoner and
implementing a  sophisticated crime was a  fair indication, under
all  the  circumstances,  that  recidivism was  a  highly  likely
eventuality.  We discern no clear error in this finding. 

                                12

of  reasons, the statute was satisfied.8   We do not think that a

district court must dissect its departure decision, explaining in

mathematical or pseudo-mathematical terms each microscopic choice

made in arriving at  the precise sentence.  See  United States v.
                                                              

Aymelek, 926  F.2d 64, 70  (1st Cir.  1991); Ocasio, 914  F.2d at
                                                   

336.  To impose such a requirement under the  guise of procedural

reasonableness would simply add  a layer of unnecessary formality

to  the departure  equation.9   We  flatly  reject so  auxetic  a

notion, preferring to regard reasonableness  as "a concept, not a

constant."  Ocasio, 914 F.2d at 336.
                  

          Let  us  be perfectly  clear.    Under the  guidelines,

                    

     8We note  in passing  that each  of the three  circumstances
identified by the  court below comprises a  permissible basis for
an upward  departure.   To  illustrate,  a sentencing  court  may
consider departing when the CHC "does not adequately reflect  the
seriousness  of  the defendant's  past  criminal  conduct or  the
likelihood  that   the  defendant  will   commit  other  crimes."
U.S.S.G.   4A1.3.  Among the items of "reliable information" that
may indicate the presence  of such a situation are  the existence
of  "prior sentence(s) not used in computing the criminal history
category" and  "prior sentence(s) of substantially  more than one
year  imposed as  a  result of  independent  crimes committed  on
different occasions."  U.S.S.G.   4A1.3(a), (b).

     9Of  course,  we  speak  in terms  of  unguided  departures.
                                                    
Section 4A1.3, as it  stood at the time appellant  was sentenced,
offered no guidance as to the extent of an upward departure based
on the criminal  history of a defendant in CHC  VI.  See Aymelek,
                                                                
926  F.2d at  70; Ocasio,  914 F.2d  at 336  n.4.   The operative
                        
guideline  has  since been  amended  to  indicate  that,  when  a
sentencing court seeks to  depart upward from CHC VI,  it "should
structure  the   departure  by  moving  incrementally   down  the
sentencing  table to  the next higher  offense level  in Criminal
History Category  VI until it finds a guideline range appropriate
to the case."  U.S.S.G.    4A1.3 (Nov. 1992); U.S.S.G. App.  C at
amend.   460.    However, appellant  does  not suggest  that  the
district court  should have followed this  particular methodology
in applying the  pre-amendment version of section 4A1.3.   Hence,
we do not consider the question. 

                                13

upward departures  carry with them a certain  burden to explicate

the  decisionmaking  process.    See  Aymelek,  926  F.2d  at  70
                                             

(observing  that  a  sentencing  court  must  clearly  articulate

reasons for the scope of the departure).  But when  the court has

provided a reasoned justification for its decision to depart, and

that  statement constitutes  an  adequate summary  from which  an

appellate   tribunal  can   gauge  the   reasonableness   of  the

departure's  extent,  it has  no  obligation  to  go further  and

attempt  to quantify the impact of each incremental factor on the

departure  sentence.   See  id.  (ruling  that, in  reference  to
                               

unguided departures, "a  sentencing court need not  resort at all

to analogies");  Diaz-Villafane, 874 F.2d  at 51-52  (questioning
                               

the  wisdom of  allowing unguided  departure decisions  to become

mere "matter[s] of arithmetic"  or products of "mechanistic bean-

counting").10     Here,    the  sentencing   court's  articulated

grounds  for  departing  permit   us  adequately  to  assess  the

reasonableness of the  departure sentence.  No more  is exigible.

See  Williams  v. United  States, 112  S.  Ct. 1112,  1121 (1992)
                                

(stating  that in  gauging the reasonableness  of a  departure, a

                    

     10While this  circuit has explicitly refused  to subject the
concept of  reasonableness to  formulaic constraints, some  other
circuits  have mandated  a more  mechanical approach  to unguided
departures.   See, e.g., United  States v. Thomas,  930 F.2d 526,
                                                 
531  (7th Cir.)  ("The  sentencing judge  is  . .  . required  to
articulate  the specific  factors  justifying the  extent of  his
departure and to adjust the defendant's sentence by utilizing  an
incremental  process that  quantifies the  impact of  the factors
considered by the court on defendant's sentence."), cert. denied,
                                                                
112  S. Ct. 171 (1991);  United States v.  Lira-Barraza, 941 F.2d
                                                       
745,  748-50 (9th  Cir.  1991) (en  banc)  (similar).   With  due
respect  for this difference of opinion, we adhere to our circuit
precedent.

                                14

reviewing tribunal must "look[]  to the amount and extent  of the

departure  in  light of  the grounds  for  departing" and  to the

purposes of sentencing).  

                       B.  Reasonableness.
                                          

          We move  now to  a consideration of  the reasonableness

vel non of the departure.  In this case, the district court hiked
       

appellant's  sentence   by  twenty-one  months,  an  increase  of

approximately  41%  over  the  GSR's ceiling.    Considering  the

seriousness of  appellant's past criminal conduct,  the extent to

which  his  criminal history  score  exceeded  that required  for

membership in CHC  VI, and the court's  supportable finding anent

likely  recidivism, we  cannot  say that  the  magnitude of  this

departure is unreasonable.   See, e.g., Brown, 899 F.2d  at 96-97
                                             

(upholding   as  reasonable   a  twelve-month   upward  departure

representing a  133% increase  over the  GSR's  ceiling);   Diaz-
                                                                 

Villafane, 874 F.2d at 51-52 (upholding  as reasonable an eighty-
         

seven month  upward departure  representing a 264%  increase over

the GSR's top end); see also Ocasio, 914 F.2d at 337 (identifying
                                   

factors to be considered in reasonableness review). 

          Appellant's  contention  that  the  court  below  acted

unreasonably because  it failed adequately to consider mitigating

circumstances, namely, the  chronological sequence and  declining

severity of  his previous  convictions, is  utterly unconvincing.

At the sentencing hearing, defense counsel urged the court not to

depart because many of  Emery's violent crimes took place  in his

youth.    The court  explicitly  responded  to this  exhortation,

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stating:  "it is true that there has  been some sort of hiatus in

the seriousness  of the criminal  activity, but there  is clearly

reason here for upward departure."   This is not a case, then, in

which   the  district  court   did  not  consider  countervailing

considerations.  See Ocasio, 914 F.2d  at 337.  Rather, the court
                           

focused on the grounds for mitigation but chose not to attach the

weight  to  them  that   appellant  obviously  preferred.    This

considered  weighing is  just the  sort  of "judgment  call" that

should   not   ordinarily  be   disturbed   in   the  course   of

reasonableness review, Diaz-Villafane, 874 F.2d at 49, especially
                                     

when,  as  now, the  ostensibly  aggrieved  party has  given  the

appellate court  no solid reason  to question  the trial  judge's

calibration of the scales.  

          We  need  go  no  further.    The court  below  plainly

fashioned  the   sentence  with  defense  counsel's   recital  of

mitigating circumstances in mind.  The end product   a twenty-one

month upward departure   represented a choice that discounted the

importance  of those circumstances  but that,  nevertheless, came

well within the court's discretion. 

Affirmed.
         

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