
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1545                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  WILLIAM A. TWITTY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Evan  Slavitt, by  appointment of  the  Court,  with whom  Mary P.            _____________                                              _______        Murray and Hinckley, Allen & Snyder, were on brief for appellant.        ______     ________________________            Michael J.  Pelgro, Assistant  United States  Attorney, with  whom            __________________        Dina Michael Chaitowitz, Assistant  United States Attorney, and Donald        _______________________                                         ______        K. Stern, United States Attorney, were on brief for appellee.        ________                                 ____________________                                   January 9, 1997                                 ____________________                      ALDRICH, Senior Circuit  Judge.  William A.  Twitty                               _____________________            (hereinafter defendant),  caught deep in the  sale of illegal            firearms, appealed  following the imposition  of a cumulative            sentence  of  97 months  on  three counts.    His convictions            stood, but we  held the court had  erred in finding  that his            participation in  the conspiracy involved lasted  long enough            to warrant  application of the Sentencing  Guidelines adopted            on  November 1, 1991.  United States  v. Twitty, 72 F.3d 228,                                   _____________     ______            232-34  (1st Cir.  1995).   The earlier Guidelines  were less            severe.   We  accordingly  remanded for  resentencing on  the            earlier  version.  On remand,  the same judge,  by adopting a            different  calculation  for  Count I,  the  conspiracy count,            reached the same sentence, and thence the original 97  months            total.   We can  understand defendant's unhappiness  with the            evaporation  of his  partial  victory.   However, we  affirm.            Mere appearances do not prevail over  established principles.            See United States v. Lombard, No. 96-1541, slip. op. at 12-13            ___ _____________    _______            (1st Cir. Dec. 4, 1996).                                          I.                      At the first sentencing,  the court, believing that            the conspiracy  shown extended  beyond November 1,  1991, and            adhering to  the rule that conspiracy should  be grouped with            other counts  involving  its sole  object, U.S.S.G.    3D1.2,            assigned thereto  Base Offense Level 14  pursuant to U.S.S.G.              2K2.1(a)(6) of the November 1991 Guidelines.  It then added                                         -2-            four sets of enhancements that brought defendant to Level 28,            which with Criminal History Category II, produced a guideline            range of  87 to 108 months.   The court chose  97 months, the            middle of the range, as the "total punishment."  See U.S.S.G.                                                             ___              5G1.2  (providing a  mechanism  for  determining  a  "total            punishment"  figure in  cases  with  convictions on  multiple            counts).   On this basis, the court sentenced defendant to 60            months on  the conspiracy  count, the statutory  maximum, and            then imposed a consecutive sentence of 37 months on Count II.            See  United States v. Quinones, 26 F.3d 213, 215-17 (1st Cir.            ___  _____________    ________            1994).  A  concurrent sentence of 37 months was  imposed on a            third count, leaving the total sentence at 97 months.                      At resentencing, the Base  Offense Level dropped to            6.   The court retained the  previous enhancements, resulting            in an adjusted  level of 20 which this time  produced a 37 to            46  month guideline range, well  under the 60 month statutory            maximum.    Explaining that  this  range  did not  adequately            reflect the  magnitude  of  defendant's  conduct,  the  court            proceeded to depart upward by adding  an additional 8 levels,            ending  up again  with an  87 to  108 month  guideline range.            From  this it reimposed the 60 months on the first count, and            then effected a further upward departure by reimposing the 37            month consecutive  sentence  on another  count, bringing  the            ultimate sentence again to 97 months.  It is to be noted that            the reaffirmed sentences  on Counts II and III were initially                                         -3-            imposed on the  basis of  the November  1990 guidelines,  and            were   appropriate  here,  assuming   the  additional  upward            departure with respect to Count I.                                         II.                      We start with the  general question. Defendant  has            cited no authority for  the proposition that there can  be no            greater  sentence after  appeal, here  in effect  obtained by            upward departure.    He might  have cited  North Carolina  v.                                                       ______________            Pearce,  where the  Court held  this to  be improper  after a            ______            second trial, if, as  here, there were no new  and subsequent            justification for  so doing.   395 U.S.  711, 725-26  (1969).            Pearce  created a  presumption  of  vindictiveness,  viz.,  a            ______            judge's irritation at being reversed.  We have held, however,            that this presumption (and hence restriction) does not apply,            for  example,  when  the   two  proceedings  are  handled  by            different judges.  United  States v. Clark, 84 F.3d  506, 508                               ______________    _____            (1st  Cir.), cert.  denied,  ___ U.S.  ___,  117 S.  Ct.  272                         _____________            (1996).     Under   familiar   principles,  therefore,   that            defendant's present silence shows  he understands, he  should            have noted and invoked the presumption, if not when the court            opened the  hearing, at least  when its action  presented the            issue.  He did not.                      We have no  doubt the  court, as a  court, had  the            discretion  to  depart  upward  and  reimpose  the  97  month                                         -4-            sentence.   We  have previously  held that  when resentencing            under a multi-count conviction,                      [C]ommon  sense  dictates that  the judge                      should be free to  review the efficacy of                      what  remains  in light  of  the original                      sentencing plan, and  to reconstruct  the                      sentencing   architecture   upon   remand                      within   applicable   constitutional  and                      statutory   limits,   if   that   appears                      necessary in  order  to ensure  that  the                      punishment still fits the crime.            United States v. Dominguez, 951 F.2d 412, 416 (1st Cir. 1991)            _____________    _________            (quoting United  States v.  Pimienta-Redondo, 874 F.2d  9, 14                     ______________     ________________            (1st  Cir. (1989) (en banc)).   The only  restrictions on the            court when making an upward departure1 are that it adequately            explain its  decision and  that the departure  be reasonable.            United States v. Rosales,  19 F.3d 763, 770 (1st  Cir. 1994);            _____________    _______            United  States v.  Rivera,  994 F.2d  942,  946-47 (1st  Cir.            ______________     ______            1993).   Here the court expressly  based the upward departure            on  the large number of  guns and the  endangerment of public            safety.  After review of the record, we have no basis to find            this unreasonable.                      Defendant  also  complains  of "double-dipping"  in            that the upward departure  imposing an additional penalty for            endangering public  safety2 was  anticipated by  and included                                            ____________________            1.  Other  than vindictiveness,  presumed, North  Carolina v.                                                       _______________            Pearce, 395 U.S. 711 (1969), or proven.  See Wasman v. United            ______                                   ___ ______    ______            States, 468 U.S. 559 (1984).            ______            2.  We  do  not  address  the three  level  upward  departure            reflecting  the large number of guns involved as in his brief            defendant concedes that  apart from the  fact that the  exact                                         -5-            within the Guidelines and,  in any event, taken  into account            by  the enhancements.   We disagree.   While it  is true that            some of the enhancements  reflected the fact that defendant's            behavior exceeded Guideline thresholds, the court determined,            based on  the entirety of defendant's  actions, i.e., putting            at  least 225  serial  number obliterated  handguns onto  the            streets,  that  the thresholds  did not  go  far enough.   It            concluded  that this  is an  unusual case,  placing defendant            outside  the heartland  of the  Guidelines and  allowing wide            discretion  in upward departure.  See Rivera, 994 F.2d at 949                                              ___ ______            (1st Cir.  1993).  We  can agree.   Moreover, in  Quinones we                                                              ________            noted   that  "appellate   review  of   a   district  court's            determination that a case  is unusual, and therefore warrants            departure,  must  take place  'with  full  awareness of,  and            respect  for, the trier's superior "feel" for the case.'"  26            F.3d  at 218  (quoting United  States v.  Diaz-Villafane, 874                                   ______________     ______________            F.2d 43, 50  (1st Cir. 1989)).   We  heed our admonition  and            affirm defendant's sentence.                                            ____________________            sentence  was  reimposed,  this  departure  could  be  deemed            reasonable.                                         -6-
