           United States Court of Appeals
                       For the First Circuit


No. 01-1303

                    UNITED STATES OF AMERICA,

                       Plaintiff, Appellant,

                                 v.

                         JULIO A. PEREIRA,

                       Defendant, Appellee.



          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

            [Hon. Nancy Gertner, U.S. District Judge]



                               Before

                    Torruella, Circuit Judge,

                       Lipez, Circuit Judge,

                  and Stearns,* District Judge.



     Paul G. Levenson, Assistant U.S. Attorney, with whom James B.
Farmer, United States Attorney, were on brief, for appellant.
     Kimberly Homan, with whom Sheketoff & Homan, Joseph S. Oteri, and
Oteri, Weinberg & Lawson, were on brief, for appellee.



*   Of the District of Massachusetts, sitting by designation.
December 3, 2001




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          TORRUELLA, Circuit Judge.     Defendant-appellee Julio A.

Pereira ("Pereira") pled guilty to four counts of subscribing false tax

returns and twenty-one counts of using the mails for commercial

bribery. At sentencing, the district court applied the Sentencing

Guidelines and found Pereira's total offense level to be sixteen.

However, citing Pereira's extraordinary responsibilities for the care

of his parents, the court departed downwards to a level ten. The court

sentenced Pereira to three years of probation, with six months' home

confinement. Because we conclude that the district court erred in

granting Pereira a downward departure, we reverse and remand this case

for action consistent with this opinion.

                             BACKGROUND

          In 1992, Pereira worked as a senior mechanical buyer for LTX

Corporation ("LTX"), a manufacturer of computer-testing equipment and

other electronic components. At that time, Henry Mathieu ("Mathieu")

was the owner of Synertron Associates, Inc. ("Synertron"), a company

that sells electro-mechanical components to firms in the computer and

medical industries.    Pereira and Mathieu entered into a kickback

arrangement whereby Mathieu paid Pereira a five percent "commission" on

all of Synertron's sales to LTX. By agreement, Mathieu paid Pereira

each month in cash, on the understanding that these payments would not

be reported to tax officials. Between 1992 and 1997, Mathieu's cash




                                 -3-
payments to Pereira totaled approximately $432,000. The tax loss

attributable to Pereira's unreported income was $106,487.

          On March 30, 2000, the Grand Jury for the District of

Massachusetts indicted Pereira on four counts of subscribing false tax

returns in violation of 26 U.S.C. § 7206(1), and twenty-one counts of

using the mails for commercial bribery in violation of 18 U.S.C. §

1952. On October 30, 2000, Pereira, pursuant to a plea agreement, pled

guilty to all counts of the indictment.

          The plea agreement set Pereira's total offense level under

the Sentencing Guidelines at sixteen - thereby resulting in a guideline

sentencing range ("GSR") of twenty-one to twenty-seven months'

imprisonment. However, the agreement permitted Pereira to move for a

downward departure.

          Prior to sentencing, Pereira filed a sentencing memorandum

seeking a downward departure. Pereira claimed, inter alia, that his

obligation to care for his elderly and ill parents was an exceptional

family circumstance warranting a downward departure. Pereira estimated

that he spent approximately twenty hours per week tending to his

parents' needs, including preparing their meals, cleaning their house,

doing their laundry, making appointments with their physicians,

administering their medications, helping them with their daily

activities, shopping for their food and other necessities, taking care

of their finances, and driving them to appointments and community


                                 -4-
activities. Furthermore, since Pereira's parents do not speak English,

he also served as an interpreter for them.

          In addition to the sentencing memorandum, Pereira submitted

several letters to the district court from family members and friends.

Pereira's wife wrote a letter describing Pereira's responsibilities to

his parents and the likely consequences that his incarceration would

have on the family:

          We live the closest of the three children to his
          parent[s'] home, which makes it much easier [for
          us] to care for them . . . . If [Pereira] were
          to be incarcerated his parents would need to move
          in with one of his two siblings versus a
          retirement home.

(Appellant's Brief app. at 35.) Pereira's sister also reported that

she was "unable to assist [her] parents to the extent that [Pereira

could]." Id. at 38. She concluded that without Pereira their parents

"would certainly be dependent upon an assisted living facility or a

home nursing arrangement."     Id.

          At the sentencing hearing, witnesses testified in detail

about the extensive care that Pereira provided his parents. Dennis

Rodríguez, a longtime family friend, testified:

          [Pereira] is the one that takes care of the
          parents . . . . Or, if he can't take care of
          something, he'll call me, Dennis, can you help me
          out with my parents . . . . The mother had
          strokes recently. [Pereira] would be, you know,
          the one to go over there and get her to the
          hospital. And, obviously, the other siblings



                                 -5-
          would join, but him being so close, he would be
          the one.

(Tr. Sentencing Proceedings at 21-22.) On cross-examination, Rodríguez

also reported that both Pereira's brother and sister worked in the

immediate vicinity of the parents' home.

          At the conclusion of the hearing, the district court found

that Pereira's total offense level was sixteen but, over the

government's objection, departed downward to a level ten. According to

the court, the departure was warranted because of Pereira's

extraordinary family obligations, and in light of the fact that (1)

none of his siblings could "step up to the plate" and provide similar

services; and (2) the family could not afford external care for the

parents. The court then sentenced Pereira to three years of probation,

with six months of home detention.

          The court specified that Pereira would be confined to his

home only during the weekends, leaving him free to work and to care for

his parents' needs during the week. On weekends, the court noted,

Pereira's parents "would have to rely on others for assistance." Id.

at 37.

                         STANDARD OF REVIEW

          We review district court departures under the Sentencing

Guidelines for abuse of discretion. Koon v. United States, 518 U.S.

81, 96-100 (1996).    This analysis has three parts.       "First, we



                                 -6-
determine as a theoretical matter whether the stated ground for

departure is permissible under the guidelines.       If the ground is

theoretically appropriate, we next examine whether it finds adequate

factual support in the record. If so, we must probe the degree of the

departure in order to verify its reasonableness."1 United States v.

Dethlefs, 123 F.3d 39, 43-44 (1st Cir. 1997) (citations omitted). In

employing this analysis, we recognize that "[a] district court's

decision to depart from the Guidelines . . . will in most cases be due

substantial deference."     Koon, 518 U.S. at 98.

                             DISCUSSION

          The United States Sentencing Guidelines establish ranges for

the criminal sentences of federal offenders. District courts must

impose sentences within the applicable ranges set forth within the

Guidelines. See 18 U.S.C. § 3553(a). However, a district court may

depart from the applicable Guideline range if "the court finds that

there exists an aggravating or mitigating circumstance of a kind, or to

a degree, not adequately taken into consideration by the Sentencing

Commission in formulating the guidelines . . . ." Id. § 3553(b).

Thus, not every aggravating or mitigating circumstance will warrant

departure; the circumstance "must render the case atypical and take it

out of the 'heartland' for which the applicable guideline was

1 Because the government challenges the appropriateness rather than the
degree of the district court's departure, our analysis does not include
the third inquiry.

                                 -7-
designed."   United States v. Carrión-Cruz, 92 F.3d 5, 6 (1st Cir.

1996).

          Sentencing courts are given considerable guidance as to the

factors that are likely or not likely to make a case atypical.

Encouraged factors are those "the [Sentencing] Commission has not been

able to take into account fully in formulating the guidelines."

U.S.S.G. § 5K2.0. When encouraged factors are present, they may take

a particular case outside the "heartland" of the applicable guideline,

thereby warranting a departure. Conversely, discouraged factors are

those "not ordinarily relevant to the determination of whether a

sentence should be outside the applicable guideline range." U.S.S.G.

ch. 5, pt. H, introductory cmt. The Sentencing Commission does not

view discouraged factors "as necessarily inappropriate bases for

departure but says they should be relied upon only 'in exceptional

cases.'" Id.

          In the instant case, the factor upon which the district court

relied in departing downward, family ties and responsibilities, is a

discouraged factor under the Guidelines. U.S.S.G. § 5H1.6. Thus,

departure on that ground is "permissible" under the first prong of our

analysis, Dethlefs, 123 F.3d at 43, only if the circumstances of

Pereira's case are "exceptional." The government claims that the

district court erred as a matter of law in concluding that Pereira's

family responsibilities were so exceptional as to warrant departure.


                                 -8-
It argues that Pereira's circumstances were adequately considered by

the Sentencing Commission, thereby placing his case within the

"heartland" and making the departure impermissible.

          Whether a discouraged factor is present in some exceptional

way should be determined, in large part, by "comparison with the facts

of other Guidelines cases." Koon, 518 U.S. at 98. Thus, existing

caselaw defines the parameters for departure, outside of which a court

cannot go without assuming the risk of acting beyond permissible

limits.

          Existing caselaw is clear that time-consuming family

responsibilities, by themselves, are not sufficient to take a case out

of the "heartland." In United States v. Carr, 932 F.2d 67 (1st Cir.

1991), this Court vacated a downward departure granted because of the

defendants' obligation to care for their four-year old son. Id. at 68.

We held that a convicted felon's parental responsibility to care for a

child was, by itself, neither atypical nor unusual, even when both

parents faced incarceration. Id. at 72. In concluding that these

circumstances were not extraordinary, we noted that "[the defendant's

mother] would care for the child while his parents were imprisoned."2

Id.

2 Though the Carr court employed the now-defunct plenary review
standard to assess the district court's decision, rather than the
current abuse of discretion standard, we still believe that Carr
provides helpful insight in defining those exceptional familial
responsibility cases that fall outside of the "heartland."

                                 -9-
          Similarly, in United States v. Rybicki, 96 F.3d 754 (4th Cir.

1996), the district court granted the defendant a five-level downward

departure,   in   part   because    of   his   extraordinary    family

responsibilities. Id. at 756. According to the district court, the

departure was warranted, in part, because the defendant had a

neurologically impaired nine-year old son who was in need of special

supervision, and a wife who was experiencing fragile mental health.

Id. at 758. In reversing the departure, the Fourth Circuit held that

the defendant's family responsibilities were not so "exceptional" as to

justify a departure.     Id. at 759.

          Finally, in United States v. Sweeting, 213 F.3d 95 (3d Cir.

2000), the defendant was a single mother and the sole provider for five

children, one of whom had a substantial neurological impairment. Id.

at 104. The disabled child required special care to ensure that he

exercised regularly, ate well, slept properly, and took his medication

at the appropriate times. Id. at 107. The Third Circuit ruled that

these factors did not make the case extraordinary, especially

considering that "there is nothing in the record to suggest that

[defendant] (and only [defendant]) can provide him with the care and

attention he needs." Id.; see also United States v. Dyce, 91 F.3d

1462, 1467-68 (D.C. Cir. 1996) (holding that the district court erred

when it departed based on defendant's status as a single mother with

three children under the age of four, one of whom was being breast-fed,


                                 -10-
and where incarceration would require placing the children in foster

care); United States v. Rushby, 936 F.2d 41, 42-43 (1st Cir. 1991)

(holding that defendant, who had been married for ten years, was the

main breadwinner for wife and two children, and did chores for wife's

grandmother, did not have unusual family circumstances); United States

v. Goff, 20 F.3d 918, 921 (8th Cir. 1994) (ruling that defendant's

support of three children and a wife with depressive disorder and panic

attacks was an insufficient basis for departure).

          Considering the immense hardships that fall within the

"heartland," it is difficult to conclude that Pereira's circumstances

fall outside of it. The extensive care that Pereira provides his

parents is no more, and likely less, time-consuming than the care

required by young children with neurological deficiencies. Unlike

dependent children who require constant care and attention, Pereira's

parents live alone and, minus the twenty hours per week that Pereira

cares for them, independently. Although we do not disparage Pereira's

significant and commendable devotion to his parents, we conclude that

it falls short of what the caselaw has defined as "extraordinary

circumstances."

          Moreover, it is the unfortunate norm that innocent family

members suffer considerable hardship when a relative is incarcerated.

As this Court has noted, "[d]isruption of the defendant's life, and the

concomitant difficulties for those who depend on the defendant, are


                                 -11-
inherent in the punishment of incarceration." United States v. Rivera-

Maldonado, 194 F.3d 224, 236 (1st Cir. 1999). This being so, something

more is necessary to elevate Pereira's case - and those of others

similarly situated - out of the "heartland." At the very least, the

caselaw requires a showing that the defendant is irreplaceable before

his circumstances are considered extraordinary. Both Sweeting and

Carr, in addition to a host of other cases, explicitly speak of this

requirement.

          In United States v. Archuleta, 128 F.3d 1446 (10th Cir.

1997), the Tenth Circuit vacated a departure based on the defendant's

sole support of two children and an elderly diabetic mother. Though

the court found the defendant's circumstances to be "difficult" and

"sympathy-evoking," it concluded that the defendant's circumstances

were not sufficiently "rare" to warrant departure. Id. at 1450. In

reaching its conclusion, the court noted that the record had failed to

establish (1) that other relatives could not care for the dependent

family members; and (2) that home nursing or other alternative services

were not available.    Id.

          Conversely, courts have affirmed departures where the

evidence established that the care rendered by the defendant was

irreplaceable. In United States v. Haversat, 22 F.3d 790, 797 (8th

Cir. 1994), the Eighth Circuit held that the defendant's care for his

ailing wife justified the district court's departure. The defendant's


                                 -12-
wife suffered severe psychiatric problems, and the defendant was needed

to "identify the beginning of any regressions and to seek out immediate

treatment to avoid 'a serious situation.'" Id.       In affirming the

district court's departure, the court relied heavily on the treating

physician's testimony that the defendant's participation in his wife's

care was "irreplaceable." Id.; see also United States v. Sclamo, 997

F.2d 970, 972-74 (1st Cir. 1993) (ruling that defendant's personal

presence was needed to assist in the care of a twelve-year old boy who

suffered from a clinical disorder and whose condition would deteriorate

in the defendant's absence).

          In contrast to Haversat, the instant case is replete with

evidence demonstrating alternative sources of care for Pereira's

parents. Therefore, to the extent that the district court's departure

was based on a determination that Pereira's care was irreplaceable,3 we

hold that such a finding does not "find[] adequate support in the

record" under the second prong of our analysis. Dethlefs, 123 F.3d at

43-44.   The nature of the care that Pereira renders (shopping,

cleaning, food preparation, etc.) is not so highly specialized as to

make him difficult to replace. Moreover, Dennis Rodríguez testified

that he provided help to Pereira's parents whenever he was called upon.



3 The district court acknowledged the irreplaceability requirement
during the sentencing hearing. The court noted, "[I]f there are other
siblings in the neighborhood who can care for the family, [the downward
departure is] not likely to fly." (Tr. Sentencing Proceedings at 8).

                                 -13-
He also reported that Pereira's siblings, who work in close proximity,

helped out in caring for the defendant's parents. In her letter to the

court, Pereira's wife stated that "[i]f [Pereira] were to be

incarcerated his parents would need to move in with one of his two

siblings." Pereira's sister noted that without the defendant, their

parents "would certainly be dependent upon an assisted living facility

or a home nursing arrangement." Nothing in the record supports the

district court's conclusion that the family could not afford such

external care. With this network of family, friends, and possible

alternative care facilities, it is exceedingly difficult to

characterize Pereira's care as irreplaceable.

          In addition, the very sentence imposed by the district court

highlights Pereira's replaceability.      The sentence requires the

defendant be confined to his home every weekend, during which time

"[his] parents would have to rely on others for assistance." The court

thus acknowledged, to some degree, that Pereira was able to rely on

others to care for his parents in his absence.

          Though it may be that none of Pereira's siblings will be able

to provide the same level of parental care, this fact alone is not

sufficient to deem Pereira irreplaceable.       As long as there are

feasible alternatives of care that are relatively comparable to what

the defendant provides, the defendant cannot be irreplaceable. In this




                                -14-
case, Pereira's siblings and the possibility of home nursing provide

adequate substitutes in Pereira's absence.

          In response, Pereira insists that his family obligations are

truly extraordinary, especially in light of how unique they are.

Pereira argues that it is uncommon to find parents who are as elderly

and disabled by serious illness as his are, and even more rare to find

a child like him who has provided a similar degree of care and

assistance to his parents.

          We believe that Pereira's argument is flawed because it

erroneously equates uniqueness with extraordinariness.          Though

Pereira's circumstances may be unique, this fact alone does not mean

that his family circumstances are necessarily extraordinary. Every

family's circumstances are unique, with idiosyncracies that are

unlikely to be duplicated. Instead, the crucial question is whether

the unique set of facts, taken together, rise to the level of

extraordinariness.

          Given the network of friends and family to care for Pereira's

parents in his absence, we find nothing extraordinary or exceptional

about Pereira's family circumstances. Though Pereira's parents will

likely be inconvenienced by their son's incarceration, inconveniences

are part of the disruption inherent in incarceration.

                             CONCLUSION




                                -15-
          The rule that we establish today, which requires a district

court to find that a defendant is irreplaceable before granting a

downward departure based on family obligations, is nothing more than a

distillation of existing judicial principles. Because Pereira cannot

be properly considered irreplaceable, his circumstances are not so

compelling as to remove him from the Guidelines' "heartland." We thus

conclude that the district court abused its discretion in granting

Pereira a downward departure. We reverse and remand this case for

action consistent with this opinion.




                                 -16-
