
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2331                                     UNITED STATES,                                      Appellee,                                          v.                                     ARTHUR DOE,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Selya and Boudin Circuit Judges.                                            ______________                                 ____________________            Richard  B. Klibaner,  by  Appointment  of  the Court,  with  whom            ____________________        Klibaner & Sabino was on brief for appellant.        _________________            Ralph F.  Boyd, Jr., Assistant United  States Attorney, with  whom            ___________________        A. John Pappalardo, United States Attorney, was on brief for appellee.        __________________                                 ____________________                                    March 18, 1994                                 ____________________                       BREYER, Chief Judge.  This appeal focuses upon the                               ___________             decision of the district  court, when sentencing Arthur Doe,             to  depart from the Sentencing Guidelines.  A jury found Doe             guilty  of   possessing  a  gun  after   a  previous  felony             conviction.    18  U.S.C.      922(g)(1).    The  Sentencing             Guidelines specified  an  imprisonment range  of  about  two             years (21 to 27 months).  The district court, believing that             the Guideline  range did not adequately  reflect Doe's prior             criminal  record, departed  and  imposed a  sentence of  six             years imprisonment instead.   Doe now appeals.  We  find the             departure lawful, and we affirm his sentence.                                          I                                      Background                                      __________                       This is Doe's second sentencing appeal.  The first             time,  the district  court  had found  applicable a  special             "mandatory minimum" sentencing  statute requiring the  court             to impose at least  a fifteen year prison term  upon "felons             in  possession"  of  a gun  with  three  (or  more) previous             convictions for  "violent felonies."  18  U.S.C.   924(e)(1)                               _______             (emphasis added).   In that earlier appeal, we  focused upon             one of Doe's three earlier felony convictions, namely a 1984             conviction for being  a "felon  in possession" of  a gun  (a             different and  earlier instance of  the present crime).   We                                         -2-                                          2             held  that   this  particular   felony  --  the   "felon  in             possession" crime --  is not itself a violent  felony; hence                                                   _______             the "mandatory minimum"  statute did not apply.   See United                                                               ___ ______             States v. Doe, 960 F.2d 221 (1st Cir. 1992).             ______    ___                       On remand, the district court properly referred to             the 1989  Sentencing Guidelines  (in effect in  March, 1990,             when Doe committed the crime) instead of the stricter (1991)             version  in effect at the  time of Doe's  resentencing.  See                                                                      ___             United  States v. Cousens, 942  F.2d 800, 801  n.1 (1st Cir.             ______________    _______             1991).  Under  the 1989 Guidelines,  the base offense  level             for  the "felon  in possession"  crime was  12.   U.S.S.G.               2K2.1(a)(2).    The Guidelines  assigned  a  total of  eight             criminal history points for  Doe's earlier convictions.  The             result, offense  level 12  at Criminal History  Category IV,             produced a  Guideline sentencing range  of 21 to  27 months.             See U.S.S.G. ch. 5, pt. A (Table).             ___                       The court, after review  of the presentence report             and after  argument at the sentencing  hearing, decided that             Doe's case was  an unusual, rather  than ordinary, case,  in             four respects:                         1)   At least one of Doe's prior convictions,  for                            armed  bank  robbery,   was  a   particularly                            dangerous crime involving use of a gun.                         2)   Doe's  record revealed a  history of serious,                            aggravated assaults.                                          -3-                                          3                       3)   Doe's record revealed a history of committing                            crimes  while  he was  free on  bail awaiting                            trial (or the like).                                     4)   At  the time  of his  arrest for  the present                            crime,  Doe  led  the police on  a high speed                            chase, endangering the lives of others.               In  light of these special  features of the  case, the court             departed from the  applicable guideline range (approximately             two years) and instead  imposed a prison term of  six years.             Doe now  appeals  this sentencing  departure.   18 U.S.C.                3742(a).                                          II                                  Standard of Review                                  __________________                       The  legal issues  before  us are  typical of  the             kinds of  issues  raised in  sentencing  departure  appeals.             They concern (1) the grounds for departure, i.e., whether or             not the circumstances are of a "kind or degree" upon which a             district   court  "may   appropriately"  rely   "to  justify             departure," United States v. Diaz-Villafane, 874 F.2d 43, 49                         _____________    ______________             (1st  Cir.), cert.  denied,  493 U.S.  862  (1989); and  (2)                          _____________             whether the  extent of the district  court's departure (from             about two years to six) was  "reasonable."  Id.; 18 U.S.C.                                                           ___             3742(e)(3).    We explained our  reviewing approach to these             kinds  of issues in Diaz-Villafane,  874 F.2d at  49, and in                                 ______________             United States v. Rivera, 994 F.2d 942 (1st Cir. 1993).  Some             _____________    ______                                         -4-                                          4             district court  decisions that a particular  case is unusual             enough to warrant departure reflect sentencing experience of             a  sort  one typically  finds  in  district, not  appellate,             courts; in our view,  the law provides the district  court a             degree  of  "leeway"  in   making  those  "kind  or  degree"             judgments.   Rivera,  994  F.2d  at 951.    Other  departure                          ______             decisions  reflect a determination of  the purpose of, or an             interpretation of  the language in, a  guideline or statute;             in  such cases,  where a  district court has  no comparative             expertise in resolving  the "quintessentially legal"  issue,             an  appellate   court  will  review  the   district  court's             determination independently.  Id.                                           ___                       In this case, when  we decide whether the district             court  gave proper  legal  reasons for  departing, we  shall             apply  one or  the other  of these  standards of  review, as             appropriate.  When we review the degree of departure for its             "reasonableness," we shall apply a "deferential" standard of             review.  Rivera, 994  F.2d at 950; Diaz-Villafane, 874  F.2d                      ______                    ______________             at 49-50.                                         -5-                                          5                                         III                                Grounds for Departure                                _____________________                                          A                                   The Bank Robbery                                   ________________                       The  district court's  first reason  for departing             consisted  of the  nature  of one  of Doe's  earlier crimes.                                ______             That crime was  a bank robbery  in daylight, committed  with             guns, that put employees and  bystanders at risk of  serious             harm.  The Guidelines assigned three criminal history points             for this crime.  But the district court, noting, among other             things,  Doe's  repeated  use   of  guns,  thought  that  it             warranted more.                        Doe argues that the Guidelines forbid the district             court  from  departing for  this reason.    He notes  that a             departure reason must, at least in principle, make  the case             "unusual";  it must  suggest circumstances  that  remove the             case  from  the  "heartland"   of  the  relevant  guideline.             Rivera, 994 F.2d at 947-48.   But, he says, the fact that an             ______             earlier felony involved use  of a gun, or a  related risk of             violence, cannot remove the case from the "heartland" where,             as here, the instant crime is being a "felon in possession."             Doe points  out that  everyone  convicted of  the "felon  in                                   ________             possession" crime must  also have been convicted  of a prior                                         -6-                                          6             felony.   In  his view,  so many  felonies involve  guns and             risks  of violence  that an  earlier  conviction for  such a             crime  must  be   common,  not  unusual,  for   a  felon  in             possession.   Hence,  those  circumstances must  lie at  the             heart of, not on  the periphery of or outside,  the relevant             "felon in possession" guideline.                       We  can treat Doe's argument  as one of pure legal             principle and consider it independently on review only if we             treat  it as  an extreme  argument --  an argument  that the             guideline's heartland encompasses all earlier gun-related or                                               ___             risk-of-violence-related  prior felonies.   See  Rivera, 994                                                         ___  ______             F.2d  at  951 (appellate  court  will  independently perform             "quintessentially legal" function of deciding what guideline             means).    Phrased   in  this  way,  the   argument  is  not             convincing.   The "felon in possession"  guideline says only             that its base offense level of 12 applies when the defendant             has previously                       been  convicted   .  .  .  of   a  crime                       punishable  by  imprisonment for  a term                       exceeding one year.             18  U.S.C.    922(g)(1) (cited  in U.S.S.G.    2K2.1(a)(2)).             That  language,  taken literally,  covers  a  vast range  of             behavior, ranging  from the  totally nonviolent to  the most             heinous.  Nothing in this language (or its apparent purpose)                                         -7-                                          7             says  that every  (earlier) gun- or  violence-related felony                        _____             must fall within its  heartland.  To the contrary,  the fact             that Congress  has imposed  a fifteen-year  mandatory prison             term upon  felons in  possession with three  earlier violent                                                   _____          _______             felonies, 18 U.S.C.   924(e)(1), suggests, by extrapolation,             something special about one or two earlier violent felonies.             Moreover,  whether the  violent nature  of an  earlier crime             does, or does not, warrant special treatment  would seem the             kind of fact-related circumstance about which the Sentencing             Commission hoped to learn  more, as district courts,  on the             basis of  their experience,  decided to depart,  or not,  in             light of such circumstances.   See Rivera, 994 F.2d  at 946,                                            ___ ______             949-51  (explaining  role  of  district  courts  in  helping             Commission revise  Guidelines).   Thus, even though  we find             some  dismal truth  in  Doe's claim  that  large numbers  of             felonies  involve guns and violence,  we do not believe that             the "felon in possession"  guideline automatically rules out                                                  _____________             consideration of a departure based on such features.                       To make Doe's  argument more  convincing, we  must             rephrase  it as  an argument  that here,  in this  case, the                                                ____      ____             nature of the  earlier gun  crime is not  special enough  to             warrant a  departure.  Indeed, whether the  special facts of             daytime bank robbery, guns, and risks of violence, make this                                         -8-                                          8             case  unusual enough  to permit  departing beyond  the added             punishment  that accompanies  three criminal  history points             presents a  close question.   But  it is  the  very kind  of             question about  which we must listen to  the district courts             with "respect."  It                       amount[s]  to  a judgment  about whether                       the  given  circumstances, as  seen from                       the  district   court's  unique  vantage                       point, are usual or unusual, ordinary or                       not ordinary, and to what extent.             Rivera,  994 F.2d at 951.   We have  recognized the district             ______             court's                       special competence in  making this  kind                       of  determination, because it may have a                       better    "feel"    for    the    unique                       circumstances of the particular case . .                       . .             Id.  We have  also pointed out that, by  permitting district             __             courts  a degree  of leeway  in making  such determinations,             they become, for the Sentencing Commission, an                       important  source of  information .  . .                       which  . .  .  can help  the  Commission                       determine  whether, and  how, Guidelines                       revision should take place.             Id.  As we have just  said, how district courts react to the             ___             presence of violence  as an  attribute of one  or two  prior             violent felonies could help the Commission decide whether or             not it  should write guidelines that  "extrapolate" from the             mandatory  minimum sentencing statute's requirement of three                                         -9-                                          9             such prior convictions.   (In fact, the Commission,  in more             recent guidelines  versions, has  extrapolated in this  way.             Compare  U.S.S.G.    2K2.1(a)(2)  (1989) (level  12 for  all             _______             felons in  possession) with U.S.S.G.    2K2.1(a)(2), (4)(A),                                    ____             (7) (1991) (level 24 for felons in possession with two prior             violent felonies, level 20 for one, level 12 for none).)                       These  considerations, along with the obvious fact             that putting innocent lives at risk, using guns, and robbing             a bank  in daylight,  aggravate the  prior  conduct to  some             degree, lead us to find lawful the district court's decision             to  use these facts as one (of several) bases for departure.                                    ___             We need not  decide how much of a departure  (over and above             the  ordinary  punishment  attributable  to  three  criminal             history points)  these facts alone would  warrant, for these             facts  were   not  the  district  court's   sole  basis  for             departure.  See Part IV, infra (discussing the extent of the                         ___          _____                 ______             departure based on all permissible factors).                                ___                                          B                            Repetitive Assaultive Behavior                            ______________________________                       The  district court set  forth another  ground for             its belief  that "reliable information"  indicated that  the             Guidelines'                                         -10-                                          10                       criminal   history  category   does  not                       adequately  reflect  the seriousness  of                       the defendant's past criminal conduct.             U.S.S.G.   4A1.3 (p.s.) (encouraging departure where that is             so).  That ground consists of what the district court called             "a virtually unbroken chain of assaultive behavior."  One of             Doe's earlier convictions involved Doe's having  hit someone             over  the head with a pipe; another involved beating two men             with  a handgun  and kicking  one of  them.   The Guidelines             assigned  no criminal  history  points for  either of  these                       __             serious crimes, in the first instance  because Doe was under             18 at  the time (and the conviction was more than five years             old);  in the  second instance  because (although  the court             tried  the  still  underage  Doe  as  an  adult)  the  court             suspended Doe's sentence, perhaps because he was about to be             sentenced to a lengthy federal prison term for bank robbery.             See U.S.S.G.   4A1.2(b)(2), (d).             ___                       Doe cannot deny the rather special nature of these             circumstances, which resemble those for which the Guidelines             encourage  criminal  history departures.   U.S.S.G.    4A1.3             (p.s.); cf. United States  v. Aymelek, 926 F.2d 64,  73 (1st                     ___ _____________     _______             Cir.  1991)  (adult  convictions  not  counted  in  criminal             history  score  may serve  as  basis for  departure  if they             evidence  "some significantly  unusual penchant  for serious                                         -11-                                          11             criminality").  Doe does, however, make one important purely             legal  argument.   He points  to  two federal  appeals court             cases  that  hold  that  the Guidelines  not  only  fail  to             encourage,  but they  forbid,  criminal  history  departures             where,  as  here,  the   departure  rests  on  a  juvenile's                                                               ________             uncounted  criminal conduct (unless  the juvenile conduct is             "similar"  to  the present  crime  of  conviction).   United                                                                   ______             States v.  Samuels,  938 F.2d  210,  214 (D.C.  Cir.  1991);             ______     _______             United  States v. Thomas, 961 F.2d 1110, 1116 (3d Cir. 1992)             ______________    ______             (adopting Samuels).                       _______                       We do  not accept  the argument because  these two             circuits, in  these cases, read the  Guidelines' approach to             departures  contrary to this  circuit's understanding.   See                                                                      ___             Rivera,  994 F.2d at 946-52.   In Samuels,  the D.C. Circuit             ______                            _______             reached  its conclusion by engaging in  a kind of "statutory             interpretation" of Guideline commentary.   It noted that the             Sentencing  Guidelines, when calculating  a criminal history             score, count prior adult crimes up to fifteen years old, but             they do not count prior juvenile crimes more than five years             old.  U.S.S.G.    4A1.2(d), (e) (setting forth approximately             this  rule,   though  tying  most   calculations  to   prior             sentences, rather  than to  prior  crimes).   It also  noted             _________                          ______             that, in  an application note, the  Commission explains that                                         -12-                                          12             this "fifteen versus  five" year  difference is  due to  the             "differential  availability"  of  juvenile   records  (i.e.,             sometimes juvenile records are  available and sometimes they             are not).  See U.S.S.G.   4A1.2 n.7.  It further noted that,                        ___             in a different application note,  the Commission adds that a             sentencing court  might nonetheless want to  use an outdated             adult  or juvenile crime (i.e.,  one more than fifteen years             old, or more than  five years old, respectively) as  a basis             for departure where that crime provides "evidence of similar                                                                  _______             misconduct" with respect  to the present  offense.  Id.  n.8                                                                 ___             (emphasis added).  From  these two statements in commentary,             the Samuels  court drew  the conclusion that  the Guidelines                 _______             forbid a court to  use a pre-cutoff-date juvenile conviction             ______             as a basis  for a departure, unless  that conviction reveals                                          ______             conduct  similar  to  the  conduct  underlying  the  present                      ___________             offense of conviction;  in its view,  any other rule  "would             plainly  exaggerate  the  sentencing  disparities  that [the             five-year cutoff] is meant  to curb."  Samuels, 938  F.2d at                                                    _______             214-16.   Thomas  basically followed  Samuels.   Thomas, 961                       ______                      _______    ______             F.2d at 1116.                       Our reason for disagreeing with this analysis  has             two  parts.   First,  the  application  notes to  which  the             Samuels  court pointed  do  not say  whether  or not  it  is             _______                 ___________                                         -13-                                          13             sometimes permissible to depart  on the basis of  a juvenile             offense that reflects dissimilar,  pre-cutoff-date, conduct.                                   ___             The first  application note, referring to  the "differential             availability"  of juvenile  records,  talks  about  ordinary                                                                 ________             cases.  It explains (in part) why the Commission established             a five year,  rather than  a fifteen year,  cutoff date  for             juvenile offenses,  for purposes of  computing the  criminal                                 ________________________________________             history  score.    See U.S.S.G.     4A1.2  n.7.   But  every             ______________     ___                                 _____             Guideline   case   requires   a   criminal   history   score             computation.   Hence, the  rules governing  that computation             affect  the  outcome  of  ordinary  guidelines  cases  where                                       ________             uniformity  is  a major  Guidelines  goal.   The  note  says             nothing about departures -- the Guidelines' escape hatch for                           __________             unusual circumstances -- which by definition create, and are             _______             supposed  to create, non-uniformity.  The second application                                  ___             note refers to  a special reason  for departing, namely  the             presence of  serious similar  instances of  criminal conduct             that  the Guidelines'  calculation system  ignores, see  id.                                                                 ___  ___             n.8,  and it  "encourages" departures  for this  reason, see                                                                      ___             Rivera,  994  F.2d at  948.   That  note, however,  does not             ______                                              ________             mention departures  for other reasons, such  as the presence             _______                 _____             of uncounted, earlier, dissimilar conduct.  See id. at  947-                                    ___                  ___ ___             49    (distinguishing   among    "ordinary,"   "encouraged,"                                         -14-                                          14             "discouraged,"  and "forbidden" departures).  Thus, the note             provides no explicit Commission guidance on this question.                      ___________                       Second,  the Samuels  court's inference  (that the                                    _______             application  notes  imply  an unstated  principle  that  the                                 _____     ________             Guidelines   forbid   using   pre-cutoff-date,   dissimilar,             juvenile  conduct  as a  basis  for  departure) is  directly             contrary to our understanding of the Guidelines'  intentions             as  to whether, and when, courts may depart. See Rivera, 994                                                          ___ ______             F.2d  at 947-49.   The  Introduction to the  Guidelines says             expressly that, with a handful of exceptions, the Guidelines             do not "limit the kinds of factors, whether or not mentioned             _____________                       ________________________             anywhere  else  in  the  guidelines  that  could  constitute             ___________________________________             grounds  for departure in an unusual case."  U.S.S.G. ch. 1,                                    __________________             pt. A(4)(b) (p.s.) (emphasis added); see Rivera, 994 F.2d at                                                  ___ ______             947.   The  handful of  explicit listed  exceptions includes             such  matters  as  race, sex,  religion,  and socio-economic             status.  E.g., U.S.S.G.    5H1.10; Rivera, 994 F.2d  at 948-                      ____                      ______             49.  The listed  exceptions do not include conduct  that was                                            ___             the  subject of an outdated juvenile conviction.  As we have             said before, the language from the  Guidelines' introduction             that we have just quoted means that a court should not infer             from inexplicit Guidelines  language, or from  language that             authorizes  use  of  a  particular factor  as  a  basis  for                                         -15-                                          15             departure in  some cases,  an absolute barrier  in principle                           ____            ________             against using certain other factors as grounds for departure             in other  unusual circumstances.   See  Rivera, 994  F.2d at                ______________                  ___  ______             948-49  (noting that  with  several  "explicit  exceptions,"                                                   ________             courts  are "free  to  consider, in  an  unusual case,"  any             factors making a case "unusual") (emphasis added).                       We  emphasize  that the  Commission's  decision to             impose very  few limits in principle  upon potential grounds                                     ____________             for departure  does not grant sentencing courts a license to             treat each case as  unique, as in the days  of pre-guideline             sentencing.   To  the contrary,  it  is meant  to  encourage             sentencing courts  (1) to ask  whether a particular  case is             truly   unusual,  i.e.,  significantly  different  from  the                     _______             ordinary  instance of the offense and, (2) if so, to explain             precisely why.  If the sentencing court wishes to depart, it             must  clearly  state just  how  the  case  differs  from  an             ordinary case, thereby not  only permitting appellate courts             to  review   the  explanation,   but  also   permitting  the             Commission to learn  more about how  the Guidelines work  in             practice.  See Rivera, 994 F.2d at 951-52.  That information                        ___ ______             will help the Commission decide whether, or how, to modify a             Guideline document, which it  sees as organic, evolving over                                         -16-                                          16             time.   U.S.S.G. ch. 1, pt. A(4)(b) (p.s.); Rivera, 994 F.2d                                                         ______             at 951-52.                         Departure  decisions  resting upon  prior juvenile             records, for example,  might, after Commission  examination,             lead  the  Commission  to  write  different  guidelines,  to             encourage different  kinds of departures, or  even to forbid             all  departures  based  on  outdated  juvenile  records,  by             explicitly saying so.  But the decision about whether or not             to  forbid certain  categories of  departure belongs  to the             Commission,  not to  the courts.   See  U.S.S.G. ch.  1, pt.                                                ___             A(4)(b);  cf. 18 U.S.C.   3553(b) ("In determining whether a                       ___             circumstance  was adequately  taken into  consideration, the             court shall consider only the sentencing  guidelines, policy                                  ____             statements,  and  official  commentary  of   the  Sentencing             Commission.") (emphasis  added).  Indeed,  after considering             such departure decisions and the Samuels interpretation, the                                              _______             Commission in  later Guidelines  versions has  rejected that             interpretation, clarifying its prior intent, consistent with             our views  here.   See U.S.S.G.  App.  C    472 (1992);  cf.                                ___                                   ___             Isabel  v. United States, 980 F.2d 60, 62-63 (1st Cir. 1992)             ______     _____________             ("clarifications"    of    Guidelines    may   be    applied             retroactively; "substantive changes" may not).                                         -17-                                          17                       Since we do not accept Doe's purely legal argument             against  the district court's use of his juvenile record, he             cannot succeed  here.   His prior  criminal conduct  is well             documented, it took place when he was almost eighteen  years             old,  it was  serious, and  it was  repeated.   The district             court, taking  these  circumstances together,  saw in  Doe's             prior (uncounted) juvenile  record a "significantly  unusual             penchant for serious criminality" that  justified departure.             See  Aymelek, 926 F.2d at 73.  Recognizing that the district             ___  _______             court  has a degree of legal "leeway" in making judgments of             thissort, Rivera,994 F.2d at951, we findits decision lawful.                       ______                                          C                               Criminal Justice Control                               ________________________                       The  district court  found  a further  reason  for             departure in the fact  that Doe had committed at  least five             earlier  crimes while he was on bail, or was awaiting trial,             or was  under  some other  kind of  "court supervision,"  in             respect to a different  crime.  This kind of  behavior, when             not  otherwise  taken   into  account   by  the   Guidelines             themselves, see, e.g., U.S.S.G.   4A1.1(d), (e), is a proper                         ___  ____             reason for departure.  See, e.g., United States v. Fahm, No.                                    ___  ____  _____________    ____             92-2215, slip  op. at 4, 7-8 (1st Cir. Jan. 5, 1994); United                                                                   ______             States v.  Diaz-Collado, 981 F.2d  640, 644 (2d  Cir. 1992),             ______     ____________                                         -18-                                          18             cert.  denied,  113 S.  Ct.  2934 (1993);  United  States v.             _____________                              ______________             Madrid,  946 F.2d 142, 143-44 (1st Cir. 1991); United States             ______                                         _____________             v. Fields, 923 F.2d  358, 362 (5th Cir. 1991),  overruled on                ______                                       ____________             other grounds,  United States v. Lambert, 984  F.2d 658 (5th             _____________   _____________    _______             Cir. 1993) (en  banc); United States v.  Singleton, 917 F.2d                                    _____________     _________             411, 413 (9th Cir. 1990) (all upholding departures  based in             part on the fact that past crimes were committed under court             supervision  or  shortly after  release);  United States  v.                                                        _____________             Hernandez, 896 F.2d 642, 645 (1st Cir. 1990) ("[A] defendant             _________             undermines the integrity of the criminal justice system when             he commits a  crime while  he is under  its supervision  and             control.").  Again recognizing that the district court has a             degree of legal "leeway"  in deciding whether the particular             circumstances present  here are unusual enough  to warrant a             departure, we find its decision lawful.                                          D                                Reckless Endangerment                                _____________________                       At  the time of Doe's arrest, he led the police on             a high speed  chase through  city streets,  along the  wrong             side of a divided highway into oncoming traffic, which ended             when he crashed into other cars and a subway tunnel barrier.             Endangering  the lives  of  others  in  this way  makes  the             instant case unusual, in  principle permitting a  departure.                                         -19-                                          19             Indeed,  the  1989 Guidelines  encourage  a departure  where             "public  .  .  .   safety  was  significantly   endangered."             U.S.S.G.    5K2.14; see,  e.g., United States  v. Rodriguez-                                 ___   ____  _____________     __________             Castro,  908 F.2d 438, 441 (9th Cir. 1990); United States v.             ______                                      _____________             Chiarelli,  898  F.2d  373,  380-81  (3d  Cir.  1990)  (both             _________             upholding departures for similar conduct under   5K2.14).                       Doe  points  out  that  the  1990  Guidelines, not             applicable to  his case, added a  new provision specifically                                                             ____________             requiring   a   two-level    upward   adjustment   in   such             circumstances.   See U.S.S.G.    3C1.2 (1990).   He seems to                              ___             argue that the new  guideline should apply to him,  in which             case the  court should  have increased his  sentence through             the  adjustment and  not  through  departure.   We  are  not             certain  why   Doe  thinks  applying   a  two-level   upward             adjustment (under the 1990 Guidelines) rather than departing             upward  two levels (as the  district court did  and the 1989             Guidelines  permit)  would have  made  a  difference to  his             sentence.   But,  regardless,  the district  court took  the             right approach.  To  apply the new 1990 Guidelines  to Doe's             case,  in  this respect,  would  have  required a  two-level                                                    ________             increase.    For  that  reason,  they  would  seem  to  have             heightened the severity of the applicable law, which at  the             time simply permitted such  an increase through a departure.                         _________                                         -20-                                          20             Hence, ex post facto principles would  have led the district             court to the earlier  1989 version, which put the  matter in             its departure-related discretion.   Cf. Cousens, 942 F.2d at                                                 ___ _______             801 n.1.                                          IV                               The Extent of Departure                               _______________________                       The  district  court  departed  from  a  Guideline             sentence range  of 21 to  27 months.   It imposed instead  a             sentence of 72 months.  The relevant statute instructs us to             review the length of that sentence for its "reasonableness,"             18  U.S.C.   3742(e)(3); in doing so we show "full awareness             of, and respect for" the sentencing court's "superior 'feel'             for  the  case."   Rivera, 994  F.2d  at 950  (quoting Diaz-                                ______                              _____             Villafane, 874 F.2d at 50).             _________                       The  district court  determined the extent  of the                                                           ______             departure as follows:                        1)  The  court  began with  the  Guideline  score,             offense  level  12,  criminal  history  category  IV,  which             produced a range of 21 to 27 months.                         2)  The court decided  that Doe's reckless conduct             fleeing arrest warranted a two-level increase in the offense             level, producing a range of 27 to 33 months.  Cf. U.S.S.G.                                                             ___             3C1.2 (1990).                                         -21-                                          21                       3) The court  decided that Doe's  criminal history             warranted, at least, a  two-category criminal history  score             departure,  placing Doe  in  criminal  history category  VI,             instead of IV, and (taken together with the reckless conduct             departure) bringing the court to level 14, category VI, with             a range of 37 to 46 months imprisonment.                       4) Finally,  the district court  found this  range             "too low  . .  . because  of  the criminal  history of  this             defendant."  The court was struck by Doe's                       virtually  unbroken chain  of assaultive                       behavior,  consistently committed  while                       under   either    supervision   or   the                       generalized   control   of  the   court,                       starting  with  the juvenile  encounters                       with law enforcement  and continuing  to                       the present offense.             The court added that the                       criminal   history  category   does  not                       reflect the seriousness of  his offenses                       nor the likelihood -- which I consider a                       virtual  certainty  --  that  once  this                       defendant  is returned to  the street he                       will commit future crimes,             and that                       [t]his  is  a  defendant  who  has  been                       permitted  to  engage  in  such  plea or                       diversionary or ameliorative  sentencing                       arrangements  because  this  system  has                       assumed that more serious  matters await                       him.  The  classic in this  circumstance                       is the [state  court] disposition of the                       defendant for assault and battery with a                       dangerous  weapon  [suspended  sentence]                                         -22-                                          22                       shortly    after   his    bank   robbery                       conviction [in the federal court].             The record  provides  sufficient support  for these  factual             conclusions.                       The court then followed the method for calculating             the  kind of  departure  that the  Guidelines recommend  "on             occasion"  for  a  defendant  with  an  "egregious,  serious             criminal  record," U.S.S.G.     4A1.3 (p.s.).   Starting  at             level 14, category VI, the court in effect moved  vertically             down the sentencing table until it found a range it believed             appropriate.  The court selected a 72 month (i.e., six year)             sentence, which  is analogous  to a five-level  departure to             level  19 (at category  VI).  U.S.S.G. ch.  5, pt. A (Table)             (level  19 at category VI  sets range of  63-78 months).  It             noted the Commission's later decision to increase a felon in             possession's offense  level by  eight for one  prior violent             felony,  see  U.S.S.G.    2K2.1(a)(4),  (7)  (1991), and  it                      ___             pointed out that its resulting sentence was less severe than             the  sentence  would have  been  if  the Commission's  later             Guidelines had applied.                       We can find nothing  unreasonable about the extent             of  the district  court's departure.   Doe's  prior criminal             record does seem "egregious."  The fact that his most recent             violent  crime,  armed  bank  robbery,  involved guns  seems                                         -23-                                          23             particularly  relevant in  light of his  present gun-related             crime.   His  record also  reveals, in  addition to  the two             serious crimes  counted in the criminal  history score, four             other serious crimes; indeed,  as the government pointed out             at  oral  argument, it  reveals  Doe's  virtually continuous             commission  of  crimes,  interrupted  only  by   periods  of             incarceration.                       Moreover, the Guidelines themselves seem to see in             such circumstances  the basis  for a significant  departure.             Commenting upon criminal  history departures, they  envision             as a candidate for departure                       a defendant with  an extensive record of                       serious,  assaultive   conduct  who  had                       received  what  might now  be considered                       extremely lenient treatment in  the past                       . . .  .  This may  be particularly true                       in the case of  younger defendants . . .                       who  are more  likely  to have  received                       repeated lenient treatment, yet  who may                       actually   pose   a   greater  risk   of                       recidivism than older defendants.             U.S.S.G.   4A1.3, comment. (backg'd).                       We cannot say that  the district court went beyond             the  "leeway" the  law  provides, Rivera,  994  F.2d at  950                                               ______             (citing Diaz-Villafane, 874 F.2d at 49-50), when it departed                     ______________             upward  by five levels.   The defendant's  prior crimes were             extensive, violent, and  (like the  present crime)  involved             guns.  The addition of two levels for the defendant's arrest                                         -24-                                          24             behavior also seems  reasonable.  Thus,  we cannot find  the             extent of  the departure, taken as  a whole, "unreasonable."             18 U.S.C.   3742(e)(3).                       We  note   Doe's  argument  that  the   court,  in             departing, simply applied the Commission's  more severe 1991             Guidelines  to him,  in violation  of the  Constitution's ex             post facto clause.  See Cousens, 942 F.2d at 801 n.1.  After                                 ___ _______             reviewing the district  court's statements, however,  we are             convinced that Doe misinterprets  what that court did.   The             court  fully understood the ex post facto problem.  It wrote             explicitly  that it used the later guidelines not to provide             a reason  for departing, but  rather as an  analogy, through               ______             reference  to the Commission's  informed judgment,  that its             grounds and extent of departure were reasonable.  See United                                                               ___ ______             States v.  Harotunian, 920 F.2d  1040, 1046 (1st  Cir. 1990)             ______     __________             (court  may look  to subsequent  Guidelines  amendments "for             partial guidance to corroborate  its belief" that particular             conduct  "furnished  a  proper ground  for  a  discretionary             departure,  and  as  a means  of  comparison  in fixing  the             departure's extent");  supra  pp. 6-17  (departure based  on                                    _____             prior bank robbery and  on juvenile conduct is permissible).             The  court  pointed  out  that,  although  it  used  the new             guideline to  provide an analogy  to determine how  far down                                         -25-                                          25             the sentencing table's column  VI it should move,  its five-             level  upward departure  was  significantly  less  than  the             eight-level increase that the  1991 Guidelines specify where             a  "felon  in  possession"  has  one  prior  violent  felony                                              ___             conviction.  U.S.S.G.   2K2.1(a)(4),  (7) (1991).  Its final             six year sentence is one year less than the minimum sentence             at  the guideline range that  the 1991 Guidelines would have             made  applicable.  The fact  that the Commission  also (in a                                                               ____             later  Guideline  version)   decided  that  certain  conduct             warrants  a  higher sentence  does  not bar  the  court from             finding, prior to the  Commission's action, that the conduct             provides a basis  for an upward departure.   See Harotunian,                                                          ___ __________             920 F.2d at 1046.                       Finally,  Doe  argues  that  the   district  court             increased his  sentence because  it disagreed with  our view             that  the  "felon in  possession"  crime is  not  a "violent             felony" that falls within the "mandatory minimum" sentencing             statute  and would  (in this  case) lead  to a  fifteen year             sentence.   See Doe, 960 F.2d at 224-26.  The district court                         ___ ___             did  mention the fact  that other circuits  have decided the             matter differently.   But  we find  nothing in  the district             court's statements that  warrant Doe's conclusion.   Rather,             the reasons that led the court  to depart are the reasons it                                         -26-                                          26             mentioned and those we  have discussed in this opinion.   We             find  no  evidence of  an  intent  to  subvert this  court's             earlier decision.                       For these reasons, the defendant's sentence is                       Affirmed.                       ________                                         -27-                                          27
