
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 97-1448                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 CHARLES E. BREWSTER,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                              _________________________                                        Before                               Selya, Boudin and Stahl,                                   Circuit Judges.                                   ______________                              _________________________               Henry  W.  Griffin,   by  appointment  of  the   court,  for               __________________          appellant.               Margaret  D. McGaughey,  Assistant  United States  Attorney,               ______________________          with whom Jay P. McCloskey, United States Attorney, and Donald E.                    ________________                              _________          Clark,  Assistant  United  States Attorney,  were  on  brief, for          _____          appellee.                              _________________________                                   October 2, 1997                               ________________________                    SELYA,  Circuit Judge.    In  this  sentencing  appeal,                    SELYA,  Circuit Judge.                            _____________          defendant-appellant  Charles  E.  Brewster  protests  an   upward          departure that the  district court premised  in large measure  on          prior, uncharged criminal conduct    a history of persistent  and          vicious  domestic  violence     dissimilar  to  the  offenses  of          conviction (being a  felon in possession of a  firearm and making          false statements in connection with the procurement of firearms).          We affirm the sentence.          I.  HOW THE CHARGES AROSE          I.  HOW THE CHARGES AROSE                    We  distill the  facts  from  the  plea  colloquy,  the          undisputed portions of the presentence  investigation report (PSI          Report),  and the  transcript of  the disposition  hearing.   See                                                                        ___          United States v.  Talladino, 38 F.3d 1255, 1258  (1st Cir. 1994);          _____________     _________          United States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).          _____________    _____                    In August 1996,  police officers responded to  a report          of domestic violence at the abode shared by the appellant and his          wife  in Livermore  Falls,  Maine.   The  officers observed  Mrs.          Brewster's  injuries, tried to  calm the couple's  three children          (ages 10, 11 and 16), took statements from both Mrs. Brewster and          her  sister-in-law,  and  arrested the  appellant.    While being          transported to the  county jail, Brewster spoke volubly about his          ardor for hunting  and described the firearms (a  30-30 rifle and          16-gauge shotgun) that  he owned and kept  in his house.   When a          routine criminal record check disclosed a prior felony conviction          for armed  robbery, the  police repaired to  the house  and, with          Mrs.  Brewster's  consent,  seized  the  two  weapons.    Further                                          2          investigation revealed that the appellant had purchased two other          rifles  without disclosing  his  status  as  a  convicted  felon.          Meanwhile,  Mrs. Brewster obtained a state court "protection from          abuse"  order, and state  authorities released Brewster  on bail,          conditioned upon his refraining  from all contact with his  wife.          The appellant promptly violated this restriction.                    In September  1996, a  federal grand  jury returned  an          indictment charging the appellant with  one count of making false          statements  on  a firearm  application  form in  violation  of 18          U.S.C.    922(a)(6), 924(a)(2) (1994),  and two counts of being a          felon in  possession of a  firearm in violation  of 18  U.S.C.             922(g)(1),  924(a)(2) (1994).    In  due  course,  the  appellant          pleaded guilty to all three counts.          II.  HOW THE SENTENCE DERIVED          II.  HOW THE SENTENCE DERIVED                    The district  judge pondered several pieces of evidence          at  the  disposition hearing.    Among  these  was a  handwritten          statement  appended to  the PSI  Report, in  which the  appellant          admitted to purchasing guns knowing that he was legally forbidden          from doing so.  In  a second handwritten statement, also appended          to the PSI Report, Mrs.  Brewster chronicled 17 years of horrific          domestic abuse.   She explained that sheer terror had forestalled          any  contact with  the authorities  before August  of 1996:   she          feared not only for her life,  but also for what might happen  to          her children  if she were slaughtered.   Her fear of  bodily harm          stemmed  from her husband's  repeated minations during  years and          years of  physical abuse.   She described incidents in  which the                                          3          appellant threw  her on the floor and stomped on her cranium with          heavy work boots, banged her head against a counter, threw knives          at her, and at various times smothered, kicked, punched, bit, and          strangled her.  In addition,  she had been threatened "with every          kind of brutal death possible."1                    The appellant made little effort to conceal his abusive          behavior.   In recorded interviews with the state police, several          neighbors and  friends  described  incidents  involving  physical          violence and vulgar  language, and reported  that they had  heard          the appellant threaten to kill his wife on several occasions.                    After making an upward adjustment for multiple weapons,          USSG  2K2.1(b)(1)(A), and a downward adjustment for acceptance of          responsibility, USSG  3E1.1, Judge Carter settled upon an offense          level (OL)  of 18.  He then  assessed criminal history points for          an  armed  robbery   conviction  and  a  breaking   and  entering          conviction  but overlooked  seven  other  convictions because  of          their age or the unavailability  of records.  The resultant point          score placed  Brewster in  criminal history  category (CHC)  III.                                        ____________________               1A  brief  excerpt illustrates  the  tone and  tenor  of the          statement:                    [My husband] has tried to drowned [sic] me in                    the pool  and in  the bath  tub.   On several                    occasions I thought I was going to die before                    he let me  up. . . .   He's told me  he would                    slice my  throat while I  slept.  He  has put                    knifes  [sic] against  my throat  and pressed                    them  into my neck, laughing while he did it.                    He  has sawed my kitchen set  up with a power                    saw because I  cooked the  `wrong thing'  for                    supper and tried  to pull me outside  to `cut                    my hands off.'  I  hid in the woods for hours                    that night, but had to go back for my son.                                          4          This matrix (OL 18; CHC III) yielded a guideline sentencing range          (GSR) of 33 to 41 months.                    The government urged  the court to depart upward on the          ground  that Brewster's CHC  underrepresented the gravity  of his          past criminality and the  corresponding risk of recidivism.   The          appellant  objected.   The ensuing  debate  centered around  USSG           4A1.3  (1995), pertinent portions of which are reproduced in the          Appendix.  Judge  Carter expressed concern about  whether section          4A1.3's language  and structure  permitted a  departure based  on          spousal abuse, especially since that  abuse   which he considered          relevant but not similar to the offense of conviction   had never          been  adjudicated as  criminal conduct.   In  the  last analysis,          however, the judge opined that the case qualified for a departure          because  of the 17-year  history of unrelieved  domestic violence          and the existence of  seven prior convictions for  serious crimes          that had not been counted in arriving at the CHC.  The judge then          mentioned  a third factor, declaring that the appellant's refusal          effectively to pursue  an alcohol abuse  program or to  undertake          domestic abuse counseling  "[a]dd[ed] to all of this  in terms of          the unusual character of this case."                    Turning to the  matter of degree, the  court determined          that  the upward departure  should be fashioned  by simulating an          increase from  CHC  III to  CHC V.   The  court  stressed that  a          sentence at the  upper limit of the simulated  GSR (51-63 months)          would produce a  prison term of approximately five  years, which,          when followed by the maximum available term of supervised release                                          5          (three years), would keep the  appellant away from his wife until          their youngest child had reached age 18.  At that time, the court          reasoned, Mrs. Brewster  would no longer be "held  hostage" in an          abusive situation  by her  concern for her  children.   The court          added  that a  sentence  of that  magnitude  was "appropriate  in          recognizing the serious nature of this  prior criminal conduct as          related conduct  to  the offense  conduct  of possession  of  the          firearm."                    When  all was  said and done,  the court  sentenced the          appellant to serve  an incarcerative term of  63 months, followed          by a  three-year term of  supervised release  (the conditions  of          which,   among   other   things,   proscribed   any  contact   or          communication  with his wife  absent written permission  from the          court).  This appeal followed.          III.  THE STANDARD OF REVIEW          III.  THE STANDARD OF REVIEW                    We review departures for abuse of discretion.  See Koon                                                                   ___ ____          v. United  States,  116 S.  Ct.  2035, 2046-47  (1996).   In  the             ______________          process, we must determine three things:  whether the articulated          ground for  departure  is conceptually  appropriate, whether  the          record provides sufficient factual support for a finding that the          ground exists, and whether the degree of departure is reasonable.          See United States v. Dethlefs, ___ F.3d ___, ___  (1st Cir. 1997)          ___ _____________    ________          [No. 96-2071, slip op. at 10].                    For organizational purposes, we  compress the departure          inquiry   in  this  case  by  examining  the  legal  and  factual          sufficiency of the  departure grounds in tandem.  Only then do we                                          6          inquire into the degree of departure.          IV.  THE GROUNDS FOR DEPARTURE          IV.  THE GROUNDS FOR DEPARTURE                    The court below departed because it determined that the          appellant's CHC significantly underrepresented his proclivity  to          commit future crimes and the  seriousness of his criminal past in          two  ways:   first,  CHC  III failed  adequately  to reflect  the          gravity  and  duration  of his  vicious,  assaultive interspousal          behavior; and second,  CHC III failed  adequately to reflect  the          cumulative  impact of  seven prior  convictions  that yielded  no          criminal history points.  We  discuss these factors seriatim.  We                                                              ________          then  discuss the  court's allusion  to  the appellant's  failure          effectively to pursue  a treatment program for  domestic violence          or alcohol abuse.                    A.  Domestic Abuse as a Ground for Departure.                    A.  Domestic Abuse as a Ground for Departure.                        ________________________________________                    The  guideline that  the district  court invoked,  USSG           4A1.3,  permits a  departure if  reliable information  indicates          that the CHC  "significantly under-represents the seriousness  of          the  defendant's  criminal  history or  the  likelihood  that the          defendant  will commit  further crimes."    The guideline's  text          relates that such  information "may include,  but is not  limited                                                        ___________________          to" the  type illustrated in  a series  of five  vignettes.   Id.          __                                                            ___          (emphasis supplied).   The first four examples address charged or          adjudicated  criminal conduct,  and the  fifth addresses  conduct          which, although unadjudicated (and perhaps uncharged), is similar          to the offense of conviction.                                          7                    In  contrast  to  these   examples,  the  court   below          predicated the  instant departure  principally on  Brewster's 17-          year history of unadjudicated, uncharged domestic abuse, which it          termed "the  most appalling  part of this  man's record."   Judge          Carter recognized  that none  of the  illustrations contained  in          section 4A1.3 applied  to this misconduct,  as the appellant  had          never been charged  with, or convicted of, abusive  behavior, and          this  prior misconduct  bore  no similarity  to  the offenses  of          conviction.  But the judge looked to the guideline's introductory          language and  concluded that Brewster's pervasive  domestic abuse          "amply  demonstrated" the likelihood  that he will  commit future          crimes.   Brewster  attacks this  finding  on three  fronts.   He          maintains that  the domestic abuse,  in and  of itself, is  not a          legally permissible  ground for  departure  under section  4A1.3;          that it is  not a relevant consideration  here; and that,  in all          events,  the evidence  of domestic  violence  relied upon  by the          sentencing court possessed too  few hallmarks of trustworthiness.          None of these arguments is convincing.2                                          1.                                          1.                                        ____________________               2Given the  sentencing  court's  factual  findings,  we  are          inclined to believe  that there is force  behind the government's          argument  that the prolonged  domestic violence which  marred the          Brewsters' marriage would have allowed the court to depart upward          under  USSG  5K2.0  (permitting departure  if the court  finds an          aggravating  circumstance  of  a  kind,   or  to  a  degree,  not          adequately taken into consideration  by the sentencing guidelines          that renders the case meaningfully atypical).  See,  e.g., United                                                         ___   ____  ______          States v.  Keester, 70  F.3d 1026, 1027-28  (8th Cir.  1995) (per          ______     _______          curiam) (upholding  such a  departure).   Because we sustain  the          upward departure under section 4A1.3, see text infra, we need not                                                ___      _____          resolve this question definitively.                                          8                    Emphasizing   the   Sentencing   Commission's   express          invitation  to consider "prior similar adult criminal conduct not                                         _______          resulting  in a  criminal conviction,"  USSG  4A1.3(e)  (emphasis          supplied),  the appellant posits  that the guideline  by negative          implication forbids the use of dissimilar, uncharged conduct as a          basis for departure.  We do not agree.                    In our  judgment, the  determination  of whether  prior          criminal conduct that  is both uncharged and  dissimilar can ever          form a basis for a criminal history departure is neither dictated          nor informed  by the  language of section  4A1.3(e).   After all,          that   section  states   explicitly  that   the   list  of   five          illustrations is not intended to be exhaustive.  What is more, to          infer  that the  guideline's  explicit authorization  to consider          similar  misconduct  as  a  basis  for  departure  precludes  any          consideration  of dissimilar misconduct for that purpose not only          would  frustrate the "included,  but not limited  to" caveat that          the  Sentencing Commission deliberately  inserted in the  text of          section  4A1.3, but  also  would  run  counter to  a  fundamental          principle of departure jurisprudence:  that, in the absence of an          explicit  proscription,   courts  generally  should   not  reject          categorically any factor as a potential departure predicate.  See                                                                        ___          Koon, 116 S. Ct. at 2051; Dethlefs,  ___ F.3d at ___ [slip op. at          ____                      ________          16]; see  also USSG Ch.1,  Pt. A., intro. comment.  4(b) (stating               ___  ____          that the Sentencing Commission did not intend "to limit the kinds          of factors,  whether  or  not  mentioned  anywhere  else  in  the          guidelines, that  could constitute  grounds for  departure in  an                                          9          unusual case").   Finally, construing section 4A1.3  to mean what          it says comports with the Commission's emphasis on a case-by-case          approach to section  4A1.3 departures, see USSG   4A1.3, comment.                                                 ___          (backg'd.) ("This policy  statement recognizes that the  criminal          history score is unlikely to take into account all the variations          in the seriousness of criminal history that may occur.").                    For  these reasons, we  rebuffed a kindred  argument in          United States v.  Doe, 18 F.3d 41 (1st Cir. 1994).  The defendant          _____________     ___          there, convicted  of being  a felon in  possession of  a firearm,          focused on statements in the  commentary to USSG  4A1.2 that open          the door  for sentencing courts  to use outdated  juvenile crimes          similar to the  offense of conviction  as a departure  predicate.          See  id.  at 45-46.    Drawing  a  negative inference  from  that          ___  ___          language, Doe argued that the  court could not use his uncounted,          outdated,  dissimilar   juvenile  crimes  as  a  springboard  for                     __________          departure.  See id.  We rejected  this argument, noting both that                      ___ ___          it contravened the Sentencing  Commission's express intention not          to limit gratuitously the kinds of factors that could  constitute          grounds for departure  in a sufficiently atypical  case, and that          the guideline commentary  provided no explicit instruction  as to          the use of uncounted dissimilar  juvenile misconduct.  See id. at                                                                 ___ ___          46.                    Both  observations are  apropos  here.   Moreover,  the          fundamental lesson to be derived from Doe is "that a court should                                                ___          not infer from  inexplicit Guidelines language, or  from language          that  authorizes  use of  a  particular  factor  as a  basis  for                                          10          departure in some cases, an absolute barrier in principle against                       ____           ________          using certain  other factors as  grounds for  departure in  other                                                                      _____          unusual circumstances."   Id. at 47.   We find that lesson  to be          _______                   ___          instructive in the circumstances at hand.                    Considerations of consistency also conduce to following          Doe's  lead.  The  guidelines, while not  specifically addressing          ___          the use of  uncharged, dissimilar conduct as a  factor in section          4A1.3 departures, explicitly  provide that the touchstone  of any          such  departure  determination  is  "that  the  criminal  history          category  does  not  adequately reflect  the  seriousness  of the          defendant's  past criminal  conduct or  the  likelihood that  the          defendant will commit other crimes."   USSG  4A1.3, p.s.  Because          the  initial CHC determination appraises a defendant's history of          deviant behavior  without regard to  whether his past  crimes are          similar in nature  to the offense of conviction, we see no reason          to insist that courts take an artificially narrow view and assess          the  CHC's  adequacy  through  a  lens  that  filters  out  prior          misconduct  which is  dissimilar  in  nature  to the  offense  of          conviction, as long as that conduct, alone or in combination with          other known data, involves or portends serious criminal behavior.                    On this issue, all roads lead to Rome.  Accordingly, we          hold that, in an appropriate  case, a criminal history  departure          can  be based  upon  prior dissimilar  conduct  that was  neither          charged nor  the subject  of a  conviction.3   In so  holding, we                                        ____________________               3To  be   sure,  we  should  approach  "dissimilar  conduct"          departures, like all other departures, with great circumspection.          Our  holding will  have  force  only in  instances  in which  the                                          11          align ourselves  with the Seventh  Circuit, see United  States v.                                                      ___ ______________          Schweihs,  971 F.2d  1302, 1319  (7th  Cir. 1992),  and note  our          ________          respectful  disagreement  with  the Second  Circuit,  see  United                                                                ___  ______          States v. Chunza-Plazas, 45 F.3d  51, 56 (2d Cir. 1995) (vacating          ______    _____________          an upward departure based on dissimilar criminal conduct that had          not  resulted  in  conviction and  holding  that  "a court  might          properly consider that  conduct [under section 4A1.3(e)]  only if          it is `similar' to the crime of conviction").                                          2.                                          2.                    The appellant  contends, in  the alternative,  that the          imposed sentence  must be vacated  because the  court rested  its          appraisal of  his past  sociopathy upon  information that  lacked          trustworthiness  and did not  credibly show that  the conduct was          meaningfully atypical.  This contention is without merit.                    We begin with  bedrock.  Traditional rules  of evidence          do  not pertain  in the  sentencing phase,  see United  States v.                                                      ___ ______________          Gonzalez-Vazquez,  34 F.3d  19,  25 (1st  Cir.  1994), and  trial          ________________          courts exercise wide  discretion in deciding what  information is          sufficiently  dependable to  rely  upon,  see  United  States  v.                                                    ___  ______________          Tardiff,  969 F.2d  1283, 1287  (1st  Cir. 1992).   Despite  this          _______                                        ____________________          uncharged, dissimilar  conduct is so  serious that, unless  it is          factored into the sentencing calculus, the resultant  CHC will be          manifestly  deficient  as  a  measure  of  the  defendant's  past          criminality and/or  likely recidivism.   Moreover,  we anticipate          that  we  will  encounter  relatively  few  defendants  who  have          substantial records of serious,  dissimilar criminal conduct that          has never  been brought  to  contemporaneous official  attention.          Indeed, such cases  may be limited to those  types of misconduct,          such  as domestic abuse, in which the very nature of the criminal          behavior  itself explains  the absence  of  previous charges  and          convictions.                                          12          latitude, the information upon  which a sentencing  determination          is  based  must  possess "sufficient  indicia  of  reliability to          support its probable accuracy."  USSG  6A1.3, p.s.                    Reliability  is a  flexible, case-specific  standard in          the   sentencing  context,   but  it   always   is  informed   by          considerations  of due process  and experiential knowledge.   See                                                                        ___          United States v. Lanterman, 76 F.3d 158, 160-161 (7th Cir. 1996);          _____________    _________          Tardiff,  969  F.2d  at  1287.   Within  those  wide  parameters,          _______          sentencing   courts  may  elect   to  embrace  divers   kinds  of          information,  even hearsay evidence that has never been subjected          to  cross-examination.   See  Tardiff, 969  F.2d at  1287; United                                   ___  _______                      ______          States v.  Zuleta-Alvarez,  922  F.2d 33,  36  (1st  Cir.  1990).          ______     ______________          Moreover, factual averments  contained in the PSI  Report usually          are deemed  reliable enough to  be used for  sentencing purposes.          See Gonzalez-Vazquez, 34 F.3d at  25; United States v. Morillo, 8          ___ ________________                  _____________    _______          F.3d 864, 872 (1st Cir. 1993) (collecting cases).                    Here, the  sentencing court  relied on  Mrs. Brewster's          notarized statement as the principal basis for its findings anent          the  history  of  domestic  abuse.   In  our  view,  the  judge's          determination  that  this  statement  accurately  portrayed   the          salient events is unimpugnable.  We explain briefly.                    In  the first  place,  Mrs.  Brewster's  statement  was          authored  subject to  the penalties  of perjury.   In  the second          place, the appellant virtually  conceded the statement's accuracy                                          13          below,4 and  failed to  dispute the  statement's contents  in the          face  of the district judge's explicit  warning that, if accepted          as true,  the statement  would form part  of the  foundation upon          which the  judge  would decide  what sentence  should be  levied.          Although the  government must carry  the devoir of  persuasion in          regard to facts  supporting an upward  departure and the  accused          has no obligation to offer oppugnant evidence, Brewster's refusal          to   disavow  the   government's  accusations   when   given  the          opportunity to do so  can itself be viewed as an  indicium of the          proffered information's  trustworthiness.   See United  States v.                                                      ___ ______________          Figaro,  935 F.2d  4,  8 (1st  Cir.  1991).   This  inference  is          ______          especially compelling where, as here, the defendant also declines          the  court's invitation  to cross-examine  the  declarant at  the          disposition hearing.  See United  States v. Shrader, 56 F.3d 288,                                ___ ______________    _______          295 (1st Cir. 1995).                    Finally,  a number of the allegations contained in Mrs.          Brewster's statement were corroborated by other information, such          as the PSI Report's description of the domestic violence incident          from which the federal charges arose, the original police report,          the  state police interview transcripts, and  the issuance of the                                        ____________________               4The following  colloquy  occurred  during  the  disposition          hearing:                    THE COURT:  Is there any respect in which you                    _________                    believe that anything  contained in the [PSI]                    report   or   its  appendices   [i.e.,   Mrs.                    Brewster's   statement]   as  I   have   just                    described them  which [sic] is  inaccurate or                    untrue?                    DEFENDANT:  No, sir.                    _________                                          14          state  court protection order.  Such independent corroboration is          a prime indicator  of reliability in the sentencing  milieu.  See                                                                        ___          United States v. Ponce, 51 F.3d 820, 828 (9th Cir. 1995).          _____________    _____                    We  need  not  tarry.    On  this  record,  it  strains          credulity to characterize Mrs. Brewster's account as unreliable.5          Hence, the district  court did not err in  accepting   and acting          upon    the information contained  in the statement.   See, e.g.,                                                                 ___  ____          Shrader, 56 F.3d at 294;  Tardiff, 969 F.2d at 1287; Figaro,  935          _______                   _______                    ______          F.2d at 7.                    Before  leaving the  topic of  factual sufficiency,  we          pause to discuss  two related points.  One  concerns the question          of  relevancy.   The appellant  hints  that, even  if the  record          reliably  reflects a pattern  of domestic abuse,  that pattern is          not a fair predictor of future criminality along the lines of the          offense of conviction.  This suggestion, however, is no more than          a  recasting of the argument that prior dissimilar conduct cannot                                                  __________          form the fundament for a  section 4A1.3 departure, and we dismiss          it on that basis.   Section 4A1.3 permits a departure  as long as          the  uncounted conduct evidences  a general propensity  to commit          "other" or  "further" crimes.   Brewster's  pervasive history  of                                        ____________________               5Brewster's  reliability  argument  leans  heavily  on   our          opinion in United States v. McMinn, 103 F.3d 216 (1st Cir. 1997).                     _____________    ______          McMinn, fairly read, will not bear the weight that Brewster loads          ______          upon it.  In that  case, we rejected a reliability  challenge and          upheld  a  section  4A1.3  departure based  in  part  on  witness          statements  attesting to the seriousness of the defendant's prior          criminal conduct.  See id.  at 218.  Brewster's argument suggests                             ___ ___          that,  were it  not for  certain  differences between  the McMinn                                                                     ______          statements and those  in issue here, the McMinn  court would have                                                   ______          disallowed the upward  departure.  This is  unfounded conjecture,          premised primarily on wishful thinking.                                          15          domestic violence  undoubtedly presages  the probability that  he          will continue to engage in such offensive behavior.                    We add, moreover, that there  is indeed a nexus in this          case between Brewster's history of  spousal abuse and his  felon-          in-possession   offense.    As  Judge  Carter  pointed  out,  the          discovery of the offense conduct arose  directly from an incident          of  domestic violence,  and,  although  the  record  contains  no          inkling that Brewster used the guns to menace his wife, we cannot          fault the  district judge's conclusion that the  presence of guns          in  the home  was "a  reasonable  source of  sufficient fear"  to          discourage  Mrs. Brewster from  seeking outside assistance  in an          effort to end the unremitting abuse.                    Finally, we must ask whether the appellant's  immersion          in domestic violence was sufficiently striking to distinguish him          from the mine-run of offenders  in CHC III, thereby warranting an          upward  departure.  See United States v. Carrillo-Alvarez, 3 F.3d                              ___ _____________    ________________          316,  320 (9th  Cir. 1993).    The district  court described  the          thoroughly  despicable   chronicle  of   physical,  verbal,   and          emotional  abuse  as  "highly  unusual."   We  believe  that  the          accuracy  of that characterization  is self-evident and  that the          atypicality requirement  of section  4A1.3  is easily  fulfilled.          Phrased another way, since the  appellant's placement in CHC  III          did not  compensate at  all for  this  markedly atypical  17-year          history of grievous misconduct, an upward departure under section          4A1.3 was warranted.                           B.  Prior Uncounted Convictions.                           B.  Prior Uncounted Convictions.                               ___________________________                                          16                    The   appellant  also   contests   the  second   pillar          underpinning the upward departure:  the district court's reliance          on the  seven prior convictions  that were excluded from  the CHC          calculation.    Because  the  court did  not  rest  its departure          analysis  on the pattern  of protracted domestic  violence alone,          but on  the combined  effect of that  pattern and  the litany  of          uncounted convictions, we must address this assignment of error.                    Section   4A1.3  specifically   authorizes  courts   to          consider  prior uncounted convictions, see USSG  4A1.3(a), and an                                                 ___          upward departure is appropriate if convictions that were excluded          from  the CHC calculation for reasons  such as remoteness "evince          some  significantly  unusual penchant  for  serious criminality."          United States v. Aymelek, 926 F.2d 64, 73 (1st Cir. 1991).          _____________    _______                    Here, the uncounted convictions involved a 1977 assault          with a dangerous weapon; a  1979 conviction for operating a motor          vehicle so as to endanger; four convictions in 1980 (two separate          larcenies, an episode  of larceny by check, and  an incident that          involved breaking and entering into  a motor vehicle); and a 1992          conviction   for  operating   an  unregistered,   uninsured,  and          uninspected  motor vehicle.   Judge Carter's assessment  that the          seven  convictions for the most part represented serious offenses          cannot be gainsaid, and, when considered against  the backdrop of          the  appellant's  protracted  history   of  spousal  abuse,  such          convictions are "sufficient to remove the offender from the mine-          run  of other  offenders."   Id.   Under  these circumstances,  a                                       ___          departure is appropriate.  See id.                                     ___ ___                                          17                    Swimming upstream  against this reality,  the appellant          asseverates that the age of these convictions dispels  any notion          that  they indicate an increased  likelihood of recidivism.  This          asseveration  lacks force.   To be sure,  the appellant committed          the uncounted offenses between  17 and 20 years ago.6   But, when          considered in conjunction with  the counted offenses and  the 17-          year history of domestic abuse,  they form discernible links in a          long chain of persistent misconduct.   Given this solid basis for          a powerful  inference of  recidivism and for  a finding  that the          string  of   uncounted  convictions  reflect  a   rather  unusual          proclivity  for  serious  criminality,  we  detect  no  abuse  of          discretion  in  the  lower  court's  reliance  on  the  uncounted          convictions.  See  United States v. Pratt, 73 F.3d  450, 453 (1st                        ___  _____________    _____          Cir.  1996) (ratifying  decision to  depart  upward based,  inter          alia, on  outdated, uncounted convictions for "serious dissimilar          [mis]conduct");  United States v. Tilley, 964 F.2d 66, 74-76 (1st                           _____________    ______          Cir. 1992)  (similar); Aymelek,  926 F.2d at  73 (holding  that a                                 _______          sentencing court properly  relied on  seven outdated  convictions          "distinguished   by  their   numerosity  and   dangerousness"  in          considering an  upward departure);  see also Doe,  18 F.3d  at 45                                              ___ ____ ___          (holding that  uncounted convictions  for dissimilar  misconduct,          remote in time, can form the basis for an upward departure).                                        ____________________               6The  parties,  like  the   sentencing  court,  focus  their          attention on the six convictions  that were excluded from the CHC          computation  on temporally-related grounds.  We follow their lead          and omit any  separate discussion of the excluded 1992 conviction          (which, in the overall scheme  of things, appears to carry little          weight).                                          18                            C.  Refusal to Seek Treatment.                            C.  Refusal to Seek Treatment.                                _________________________                    In pronouncing  sentence, the district  court mentioned          the  appellant's failure to  pursue counseling for  alcohol abuse          and domestic  violence.   The  appellant  claims that  the  court          erroneously  employed this finding  as a third  factor justifying          the sentence, and contests it both as a matter of law (he asserts          that  refusal to  seek  treatment  cannot form  the  basis for  a          departure) and as  a matter of fact (he asserts that he had begun          treatment before his arrest).                    Speaking broadly,  the absence  of a  mitigating factor          ordinarily cannot  be treated as  the presence of  an aggravating          factor, and, therefore, it might  arguably be error to premise an          upward  departure on  a finding,  simpliciter,  that a  defendant          refused to seek  voluntary treatment.7  We decline  to pursue the          point for two reasons.  First, the record in this case, read as a          whole, casts doubt upon the appellant's claim that the court used          this finding as an independent  basis for departing.  Rather, the                                        ____________________               7This situation is unlike United  States v. Shrader, 56 F.3d                                         ______________    _______          288 (1st Cir. 1995), a case in which the defendant unsuccessfully          challenged a criminal history departure granted on the basis that          his CHC significantly  understated both his criminal  history and          his proclivity for  recidivist behavior.   We noted, inter  alia,          four incidents, not included in the CHC computation, during which          Shrader  operated a motor  vehicle while  under the  influence of          alcohol, and we  further noted that the CHC  "did not account for          the  fact  that  Shrader  had  thrice  been  ordered  to  undergo          rehabilitation  programs  designed  to  deter  the  very behavior          underlying these  incidents."   Id. at  293.   We held  that this                                          ___          "record of persistently  disregarding the law" rendered  the case          sufficiently unusual to warrant an upward departure.  However, it          was not  Shrader's failure  to seek  treatment, but his  flagrant          disregard  of judicial directives,  that helped to  establish his          recidivist tendencies.                                          19          sentencing  transcript  suggests  that the  court  considered the          defendant's  failure  to  seek help  primarily  as  evidence that          Brewster  had "every prospect of continuing [the violent domestic          abuse]  in the  future"  and  of continuing  to  "indulg[e] in  a          dangerous and highly reprehensible . . . course of conduct."                    Second, to  the extent    if at  all    that the  court          blended this finding  into the departure mix, any  error would be          harmless.  When a departure  rests on a combination of valid  and          invalid grounds,  a reviewing court  should uphold it as  long as          (1)  the extent  of departure  is reasonable  in relation  to the          valid grounds, (2)  the exclusion of the invalid  ground does not          undermine  the departure rationale  articulated by the sentencing          court,  and  (3)  whole-record review  offers  an  assurance that          excision of  the invalid ground  probably would not  have altered          the sentence imposed.   See United  States v. Diaz-Bastardo,  929                                  ___ ______________    _____________          F.2d 798, 800 (1st Cir. 1991); see also Figaro, 935 F.2d at 7.                                         ___ ____ ______                    In  this  instance,  it is  readily  apparent  that the          district court's  decision to  depart depended  primarily on  the          appellant's   prolonged  campaign   of   domestic  violence   and          secondarily on the uncounted convictions.  It is equally apparent          that those grounds, standing alone, are fully adequate to support          the departure.   What the  court perceived to be  the appellant's          refusal to  seek treatment was at  most a throw-in    a lagniappe          that in all likelihood did not sway, or even affect, the decision          to depart.  Hence, we  rule that the district court's superfluous          "refusal  to  treat" comments,  whether  or  not intended  as  an                                          20          additional ground for departure, do not undermine the sentence.          V.  THE REASONABLENESS OF THE DEPARTURE          V.  THE REASONABLENESS OF THE DEPARTURE                    Having determined  that the stated grounds  are legally          and  factually  sufficient  to  support  the  sentencing  court's          decision to depart,  our final  task is  to assay  the degree  of          departure.  The yardstick  is reasonableness.  See  United States                                                         ___  _____________          v.  Quinones, 26 F.3d 213, 219 (1st  Cir. 1994); United States v.              ________                                     _____________          Diaz-Villafane,  874 F.2d  43, 49  (1st Cir.  1989); see  also 18          ______________                                       ___  ____          U.S.C.    3742(e)(3)  (1994).    This  criterion requires  us  to          consider not only the trial court's reasons for departing, see 18                                                                     ___          U.S.C.   3742(e)(3)(B), but also "the overall aggregate  of known          circumstances pertaining to  the offense of conviction and to the          offender  who committed it,"  United States  v. Ocasio,  914 F.2d                                        _____________     ______          330, 337 (1st Cir. 1990).  Furthermore, we must determine whether          a  sentencing  court  that  purports  to  undertake  a  so-called          horizontal departure,8 such as a criminal history departure under          section 4A1.3, has fulfilled  its guideline-imposed obligation to          evaluate  adjacent criminal history categories in sequence.  See,                                                                       ___          e.g., Pratt, 73 F.3d at  453 (concluding that a court seeking  to          ____  _____          depart   pursuant  to  section  4A1.3  must  determine  that  the                                        ____________________               8Departures   pursuant  to   USSG    4A1.3  are   considered          horizontal  because, in  selecting an  adequate  criminal history          category, "the  court  moves horizontally  across the  sentencing          table  through successively  higher  CHCs  until  it  reaches  an          appropriate, or `reflective' sentencing range."  United States v.                                                           _____________          Hardy, 99  F.3d 1242, 1248  (1st Cir.  1996).  By  contrast, USSG          _____           5K2.0 authorizes a court to  depart by moving along the vertical          axis of the sentencing table  and selecting an offense level that          reflects   the  impact   of  the   aggravating   (or  mitigating)          circumstance which makes the offense  of conviction unusual.  See                                                                        ___          id.          ___                                          21          offender's  criminal history is similar to the criminal histories          of defendants in  the CHC to which the court  wishes to migrate);          Aymelek,  926  F.2d   at  70  (explaining  that   "section  4A1.3          _______          departures  require the use  of analogies  by, in  effect, moving          from one  criminal history category to another"); see also United                                                            ___ ____ ______          States  v. Tropiano,  50 F.3d  157, 162  (2d Cir.  1995) (holding          ______     ________          that,  under section  4A1.3, a  court  is required  to "proceed[]          sequentially from the criminal history category determined by the          defendant's  criminal history  point  score  through each  higher          criminal history category  until it settles upon  a category that          fits the defendant").  Because a sentencing court  has first-hand          exposure  to the  accused and  a more  intimate knowledge  of the          circumstances  upon which  the decision  to  depart is  premised,          appellate  courts   should  disturb   determinations  implicating          degrees  of  departure  only  if  it  clearly  appears  that  the          sentencing court abused  its considerable discretion.   See Diaz-                                                                  ___ _____          Villafane, 874 F.2d at 49-50.          _________                    In this instance, the court leapfrogged over CHC IV and          departed from CHC III to CHC V, thereby upgrading the GSR  from a          maximum of 41 months to a maximum of 63 months.  It  then imposed          a 63-month sentence.   The court reasoned that this incarcerative          term,  followed by  three  years  of  supervised  release,  would          accomplish two things:   it would ensure judicial supervision  of          the appellant's activities until his youngest  son was old enough          to  leave  home, and  it  would  appropriately  reflect both  the          seriousness  of the appellant's  criminality and  the concomitant                                          22          risk of recidivism.   We find nothing unacceptable  in the extent          of the departure.                    At   the  threshold,  we   dismiss  out  of   hand  the          appellant's suggestion that the district  court failed adequately          to  explain  its  reasons  for  selecting  a  departure  of  this          magnitude.   The requirement that  courts departing  horizontally          must  look to adjacent criminal history categories in sequence is          important,  but it is  not to be  construed in  a robotic manner.          See Aymelek, 926  F.2d at  70.   Here, though the  court did  not          ___ _______          explicitly  discuss  the  inadequacy  of  CHC  IV,  it  made  the          rationale for its choice of CHC V transparently clear.  Moreover,          the court's explanation  of why a sentence available  under CHC V          satisfied  its concerns    particularly  its  concern about  Mrs.          Brewster's welfare in relation to the childrens' ages   served de          facto  as  an  explanation  of  why CHC  IV  would  not  suffice.          Accordingly,  the  explanation  substantially complies  with  the          requirement contained in section 4A1.3.                    The  appellant's  related  claim  that  the  extent  of          departure  is  draconian  deserves  scant  comment.    The  court          departed upward by  22 months to a point  approximately 50% above          the maximum allowed under the original  GSR.  We are mindful that          sentencing courts  have substantial  leeway regarding degrees  of          departure.  See United States  v. Rivera, 994 F.2d 942,  950 (1st                      ___ _____________     ______          Cir.  1993); Aymelek,  926 F.2d  at 69  (citing United  States v.                       _______                            ______________          Aguilar-Pena, 887 F.2d 347, 350 (1st Cir. 1989)); Diaz-Villafane,          ____________                                      ______________          874  F.2d at  52.  Although  the extent  of the departure  in the                                          23          instant  case  is  substantial, we  believe  that  the departure-          justifying  circumstances and the extent of  the departure are in          reasonable balance.   No more is exigible.   See United States v.                                                       ___ _____________          Harotunian, 920  F.2d  1040, 1045-46  (1st Cir.  1990); see  also          __________                                              ___  ____          United  States v.  Hardy,  99  F.3d 1242,  1253  (1st Cir.  1996)          ______________     _____          (affirming upward departure of 300% based  in part on defendant's          "persistent ten-year history of violent anti-social behavior").          VI.  CONCLUSION          VI.  CONCLUSION                    We  need go  no  further.   We  hold  that USSG   4A1.3          provided legal  authority for the  court to depart  for uncharged          dissimilar  misconduct  (here, an  ingrained pattern  of domestic          violence) of a kind that evinced both the defendant's significant          likelihood  of recidivism  and the  seriousness  of his  criminal          past.  We  also hold that,  in the unique  circumstances of  this          case, the long and documented history  of spousal abuse, combined          with a plethora  of uncounted prior convictions,  amply justified          an upward  departure of the  magnitude essayed by  the sentencing          court.          Affirmed.          Affirmed.          ________                                          24                                       APPENDIX                                       APPENDIX                                       ________                    If  reliable information  indicates  that the  criminal                    history  category  does   not  adequately  reflect  the                    seriousness of the defendant's past criminal conduct or                    the likelihood  that the  defendant  will commit  other                    crimes,  the  court may  consider  imposing  a sentence                    departing  from  the   otherwise  applicable  guideline                    range.   Such  information  may  include,  but  is  not                    limited to, information concerning:                         (a) prior  sentence(s) not used  in computing  the                         criminal  history  category (e.g.,  sentences  for                                                      ____                         foreign and tribal offenses);                         (b) prior sentence(s)  of substantially more  than                         one year imposed as a result of independent crimes                         committed on different occasions;                         (c)  prior  similar  misconduct  established by  a                         civil  adjudication or by a failure to comply with                         an administrative order;                         (d) whether  the defendant  was  pending trial  or                         sentencing  on another charge  at the time  of the                         instant offense;                         (e)  prior  similar  adult  criminal  conduct  not                         resulting in a criminal conviction.                    A  departure under this provision is warranted when the                    criminal   history   category    significantly   under-                    represents the seriousness of the defendant's  criminal                    history  or  the  likelihood  that the  defendant  will                    commit further crimes.  . . .   The court may,  after a                    review  of all the  relevant information, conclude that                    the defendant's criminal history was significantly more                    serious  than that  of  most  defendants  in  the  same                    criminal history  category, and  therefore consider  an                    upward departure from the guidelines.  However, a prior                    arrest  record  itself shall  not  be  considered under                     4A1.3.          USSG  4A1.3 (1995).                                          25
