235 F.3d 42 (1st Cir. 2000)
UNITED STATES OF AMERICA, Appellee,v.ERIC GRAY SNYDER, Defendant, Appellant.
Nos. 00-1043, 00-1051.
United States Court of Appeals, For the First Circuit.
Heard Oct. 3, 2000.Decided December 21, 2000.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. William G. Young, U.S. District Judge.[Copyrighted Material Omitted]
Victoria L. Nadel for appellant.
James F. Lang, Assistant United States Attorney, with whom Donald  K. Stern, United States Attorney, was on brief, for appellee.
Before Boudin, Circuit Judge, Cyr, Senior Circuit Judge, and Lynch, Circuit Judge.
LYNCH, Circuit Judge.


1
In this unusual case, a trial  judge sua sponte recused himself from sentencing because he  found himself "unwilling, as a matter of conscience" to apply  the U.S. Sentencing Guidelines as interpreted by this court. The defendant, who might have otherwise benefitted from the  judge's lenient views, claims that the judge had a duty to sit,  that his decision to recuse himself was therefore in error, and  that the case should be remanded back to the judge for  resentencing.  In the alternative, the defendant objects to the  sentence imposed upon him by a different judge to whom his case  was reassigned, as well as that judge's decision to deny his  motion for a new trial.  The primary question in the case pits  a judge's duty to sit, if there is no reason to recuse, against  his duty not to sit, if a reasonable person could doubt his  impartiality.  We uphold the trial judge's decision to recuse  himself and reject the defendant's other attacks.

I. BACKGROUND

2
Eric Snyder was convicted after a jury trial of being a felon  in possession of a firearm and ammunition in violation of 18 U.S.C. §  922(g)(1).  At sentencing, the trial judge, Judge Harrington, found the  defendant to be an armed career criminal under 18 U.S.C. § 924(e) and  calculated the applicable guideline range at 235 to 293 months. However, after expressing concern during the sentencing hearing that  the range was too harsh, Judge Harrington chose to depart downward,  explaining his decision in a published memorandum.  See United States v. Snyder, 954 F. Supp. 19, 22 (D. Mass. 1997) (hereinafter "Snyder  I").  In his view, a downward departure was justified because had  Snyder been prosecuted and convicted under state law, he would have  been sentenced to a far shorter prison term than that prescribed by the  federal Sentencing Guidelines.  Such sentencing disparity, Judge  Harrington argued, effectively grants federal prosecutors "unbridled  power" to single out "local" offenders for disparately long federal  sentences.  Accordingly, Judge Harrington departed downward in order to  bring Snyder's sentence closer to the sentence he would have received  in state court, sentencing Snyder to 180 months, the statutory minimum. Id.  On appeal, this court vacated the sentence, holding that a  disparity between federal and state sentences for the same offense is  not a legitimate ground for departure.  We remanded the case for  resentencing.  See United States v. Snyder, 136 F.3d 65, 70 (1st Cir.  1998) ("Snyder II").


3
Following the remand, Judge Harrington initially scheduled  resentencing for April 27, 1998.  Over the next eight months, though,  he granted Snyder a series of continuances while Snyder awaited a  decision from the Boston Municipal Court regarding whether one of his  prior convictions was unconstitutional.  On December 9, 1998, after  successfully vacating the prior conviction, Snyder moved for a new  trial in this case, arguing that with the conviction eliminated he  could no longer be considered to have been a "felon" for purposes of §  922(g)(1) at the time he was caught in possession of a firearm.


4
On December 23, 1998,  Judge Harrington held a hearing in  which he considered both Snyder's resentencing and his motion for a new  trial.  During the hearing, the judge made clear that he harbored "deep  problems of conscience over this case" and that he was frustrated by  the government's unwillingness to concede that Snyder did not deserve  the sentence required by the Guidelines.  The hearing produced no  resolution as Judge Harrington again granted a continuance, this time  to allow Snyder to submit his own version of events for inclusion in  the presentence report.


5
On September 22, 1999, a year and a half after our remand in Snyder II, Judge Harrington abruptly recused himself from the case sua  sponte.  The written order stated that he was "unwilling, as a matter  of conscience, to impose the draconian sentence required by the United  States Court of Appeals for the First Circuit," citing Snyder I as  setting forth the reasons underlying his conscientious objection. Snyder moved for reconsideration of the recusal order, which motion  Judge Harrington denied by margin endorsement.  Snyder then appealed  the denial.


6
While the appeal was pending, Snyder's case was reassigned  to Chief Judge Young, who proceeded to hold a sentencing hearing on  October 14, 1999.  At the hearing, Judge Young denied a motion by  Snyder for further continuance pending this court's decision on Judge  Harrington's recusal.  He then heard Snyder argue various grounds for  a downward departure.  Rejecting all of those grounds, Judge Young  sentenced Snyder to 264 months, a sentence at the midpoint of the  applicable guideline range.  On March 6, 2000, Judge Young denied  Snyder's motion for a new trial.  Snyder timely appealed his sentence  and the denial of the new trial motion.  We now consider this appeal  and the appeal of Judge Harrington's recusal order.

II. DISCUSSION
A.  Recusal

7
Did Judge Harrington commit reversible error in recusing  himself from the case?  Snyder claims that Judge Harrington lacked  any valid authority for recusing himself, and that in the absence of  such authority the judge had a duty to continue presiding.  As for  what prejudice Snyder suffered from the recusal, he claims that he  was deprived of the opportunity to be sentenced by a judge intimately  familiar with the facts of his case.  Had the sentencing judge fully  grasped these supposedly peculiar facts, Snyder believes, he would  have granted Snyder a downward departure or, at the very least, would  have sentenced Snyder at the low end, rather than the midpoint, of  the applicable guideline range.  For its part, the government argues  that Judge Harrington's decision to recuse himself was entirely  appropriate under the circumstances: the judge had made many  statements of record expressing hostility toward the government's  case, and for some 18 months he had refused to sentence Snyder as he  was required to do on remand.  Such conduct, the government argues,  gave rise to an objective appearance of partiality, warranting  recusal.


8
Recusal of federal judges is governed by 28 U.S.C. § 455,  subsection (a) of which is at issue here.  That subsection provides  that "[a]ny justice, judge, or magistrate of the United States shall  disqualify himself in any proceeding in which his impartiality might  reasonably be questioned."  The reach of the subsection is broad.  It  forbids partiality whether grounded in an "interest or relationship"  or a "bias or prejudice"; and it forbids not only the reality of  partiality but its objective appearance as well.  Liteky v. United  States, 510 U.S. 540, 548 (1994).  As the Supreme Court has pithily  characterized the subsection: "Quite simply and quite universally,  recusal [i]s required whenever 'impartiality might reasonably be  questioned.'"  Id. (quoting 28 U.S.C. § 455(a)).


9
Nevertheless, judges are not to recuse themselves lightly  under § 455(a).  See H.R. Rep. No. 93-1453, at 5 (1974), reprinted in 1974 U.S.C.C.A.N. 6351, 6355 ("[Section 455(a)] should not be used by  judges to avoid sitting on difficult or controversial cases.").  As  Snyder contends, an erroneous recusal may be prejudicial in some  circumstances.  See United States v. Arache, 946 F.2d 129, 140 (1st  Cir. 1991) (finding that "there appears to be some force" to argument  that recusal may prejudice defendant where recusing judge has become  familiar enough with facts of case to question reliability of key  testimony).  In any event, the unnecessary transfer of a case from  one judge to another is inherently inefficient and delays the  administration of justice.  See Camacho v. Autoridad de Telefonos de  Puerto Rico, 868 F.2d 482, 491 (1st Cir. 1989) (noting that the  judicial system would be "paralyzed" were standards for recusal too  low).  For these reasons, "[a] trial judge must hear cases unless  [there is] some reasonable factual basis to doubt the impartiality or  fairness of the tribunal."  Blizard v. Frechette, 601 F.2d 1217, 1221  (1st Cir. 1979).  Thus, under § 455(a) a judge has a duty to recuse  himself if his impartiality can reasonably be questioned; but  otherwise, he has a duty to sit.1


10
Most appeals arising under § 455(a) are brought after the  trial judge has refused to recuse himself on motion of a party.  See,  e.g., In re United States, 158 F.3d 26, 27 (1st Cir. 1998); Blizard,  601 F.2d at 1219.2  In such cases we have applied an abuse of  discretion standard.  As we stated in In re United States:


11
[A] decision whether to disqualify [is] in the first  instance committed to the district judge.  And, since in  many cases reasonable deciders may disagree, the district  judge is allowed a range of discretion.  The appellate  court, therefore, must ask itself not whether it would  have decided as did the trial court, but whether that  decision cannot be defended as a rational conclusion  supported by [a] reasonable reading of the record.


12
158 F.3d at 30 (citations and internal quotation marks omitted). Furthermore, we have recognized that the duty to recuse and the duty  to sit do not exert equal pull; in close cases, "doubts ordinarily  ought to be resolved in favor of recusal."  Id.  No one suggests that  different principles of review apply here, where a judge has recused  himself sua sponte.3  Hence, our review in this case, as in our prior  cases, is both deferential and weighted: we inquire whether, in light  of the policy favoring recusal in close cases, Judge Harrington  abused his discretion in finding that he had a duty to recuse  himself.


13
We find no such abuse of discretion.  Given Judge  Harrington's persistent and vociferous objections to Snyder's federal  prosecution, and, more importantly, given his outright unwillingness  to sentence Snyder in accordance with this court's ruling in Snyder  II, Judge Harrington's decision to recuse himself from the case was  clearly not an abuse of discretion.  Judge Harrington did not merely  express opinion; he ultimately concluded he could not bring himself  to do what the law required.  The record amply evinces that his  conclusion was genuine.  Further, to the extent there can be any  doubt, such doubt is resolved in favor of recusal.


14
Judge Harrington first voiced objections to Snyder's  prosecution in the sentencing proceedings antedating Snyder II, in  which he repeatedly insisted that Snyder's federal prosecution worked  a "gross violation of the principles of justice."  In his memorandum  in Snyder I, Judge Harrington elaborated on this theme, holding that  the sentence sought by the government


15
constitutes a grossly disparate sentence pre-determined by  the prosecutor in the exercise of his absolute discretion  and, thus, affronts this Court's sense of fundamental  fairness . . . .  For where unbridled power, unchecked by  judicial scrutiny, can by fiat determine that a certain  person from among many similarly situated shall serve such  a disparate sentence for the same offense, then the  balance of governmental powers has become distorted and  the liberty of every individual is held hostage to the  potential tyranny of the Executive Branch.


16
Snyder I, 954 F. Supp. at 22; see also Snyder II, 136 F.3d at 66-67  (detailing Judge Harrington's remarks in sentencing proceedings  antedating Snyder II).


17
On remand following Snyder II, at the aborted sentencing  hearing of December 23, 1998, Judge Harrington's protests grew  increasingly adamant.  He again and again chastised the government  for requesting a 262-month sentence:


18
How does . . . the government, in an insignificant  incident, . . . ask me to sentence this man to 21 years? I've been involved in a lot of murder cases and I never  had a client who ever did more actual jail time than 15  years.  And I'll tell you, it shocks me that the United  States Government would look at this man for what he did  in this case and ask for 21 years.  I think it's unjust  and it's extremely shocking, and I just can't believe that  this government, of which we're all a part, can do it. It's a manifestation of inflexibility on their part.


19
. . . .


20
I don't endorse what Mr. Snyder did, but I've been  involved in the criminal law for 38 years on both sides. To my judgment, this is the most outrageous recommendation  I have ever seen in the history of Massachusetts  jurisprudence . . . .  And every time I think of Mr.  Snyder having to serve 21 years, I almost get physically  sick.


21
As the hearing progressed, Judge Harrington returned to  the objections he lodged in Snyder I concerning the judiciary's  inability to check selective prosecution and sentencing, even though  this court had instructed (as Judge Harrington apparently recognized)  that those objections were not legitimate grounds for a downward  departure:


22
This case is an example, although the Court of Appeals did  not accept it, of the government using a Federal Court to  transform a year-and-a-half sentence to a 21-year term of  imprisonment.


23
. . . .


24
And federal judges feel put upon because they feel that  that type of sentence is unjust.


25
Toward the end of the hearing, Judge Harrington openly expressed  frustration with the prosecution's refusal to come around to the  court's point of view, at one point pressing the government to  concede that Snyder was entitled to some sort of downward departure. Specifically, after describing the court's efforts to cooperate with  the U.S. Attorney's office in other matters, Judge Harrington  continued:


26
And yet now, when this Court -- when the U.S. Attorney  knows that this Court has deep problems of conscience over  this case, they will not reciprocate one inch, one inch.


27
Finally, in the recusal order issued after the hearing, Judge  Harrington expressly declared that he was flatly unwilling to  sentence Snyder in accordance with this court's remand order,  reasserting, once again, the objections articulated in Snyder I.


28
A judge's views on matters of law and policy ordinarily  are not legitimate grounds for recusal, even if such views are  strongly held.  See Richard E. Flamm, Judicial Disqualification:  Recusal and Disqualification of Judges § 10.2 (1996) (collecting  cases).  After all, judges commonly come to a case with personal  views on the underlying subject matter; indeed, many judges are known  to dislike aspects of the Sentencing Guidelines.  Far from  necessarily warranting recusal, typically such views merely mark an  active mind.  See Laird v. Tatum, 409 U.S. 824, 835 (1972) ("Proof  that a [judge's] mind . . . was a complete tabula rasa . . . would be  evidence of lack of qualification, not lack of bias."); John  Leubsdorf, Theories of Judging and Judge Disqualification, 62 N.Y.U.  L. Rev. 237, 250-51 (1987) (discussing Judge Jerome Frank's statement  that "[i]f . . . bias and partiality be defined to mean the total  absence of preconceptions in the mind of the judge, then no one has  ever had a fair trial and no one ever will").


29
Moreover, a judge ordinarily may not be disqualified  merely for reprehending a party's legal position, or for  interrogating counsel in an angry or confrontational tone.  See In re  United States, 158 F.3d at 34; Flamm, supra, § 16.5.  Emotions can  run high in the courtroom, and occasional flares of temper are to be  expected in the heat of argument.


30
But when a judge proves unable to put aside his personal  convictions in order to carry out the law, when his hostility toward  a litigant's position has become so pervasive that he cannot  reasonably hope to provide a fair hearing, then recusal is of course  warranted.  See Flamm, supra, § 10.4 (recusal appropriate where  judge's mind has become "irrevocably closed" as to the issues in a  specific case) (collecting cases); In re United States, 158 F.3d at  34 (recusal appropriate where judge appears to harbor "an aversion,  hostility or disposition of a kind that a fair-minded person could  not set aside when judging the dispute") (quoting Liteky, 510 U.S. at  557-58 (Kennedy, J., concurring in the judgment)).  These conditions  clearly enough were met here.  Cf. City of Columbus v. Hayes, 587  N.E.2d 939, 942  (Oh. Ct. App. 1990) (remanding to another judge for  resentencing where original sentencing judge, after being reversed,  declared that he would impose the same sentence as before, even if he  were reversed again "ten times").  At the least, we find that Judge  Harrington did not abuse his discretion in deciding that, given his  unyielding antipathy toward the government's case, he had no choice  but to recuse himself.


31
That said, there is another point.  While one can  appreciate the struggle of a judge to bring himself to apply a law he  feels unjust, that this process took over a year and a half in this  case is cause for concern.  The defendant and the government each had  interests in ensuring that facts relevant to sentencing remained  fresh in the mind of the court, counsel, and any potential witnesses. The public also legitimately expects that criminal cases will be  expeditiously resolved.  Thus, while we hold that Judge Harrington's  decision to recuse himself was not in error, we note that a prompter  decision would have better served the interests of justice.

B.  Sentencing

32
The next question is whether Judge Young erred in  resentencing Snyder.  Snyder alleges two errors: first, he claims  Judge Young failed to explain why he saw fit to sentence Snyder at  the midpoint, rather than the low end, of the applicable guideline  range; second, he claims that Judge Young failed adequately to  consider various grounds for departure and consequently failed to  depart downward from the applicable guideline range.


33
Snyder's first claim is based on 18 U.S.C. § 3553(c),  which requires the sentencing court to explain how it determined the  applicable guideline range and, if that range exceeds twenty-four  months, why it selected the particular point that it did within that  range.  Snyder challenges the second aspect of Judge Young's  calculation of his sentence, arguing that the judge's decision to  sentence Snyder at the midpoint of the applicable guideline range was  arbitrary and unjustified by the facts of the case.4


34
The record of the sentencing hearing reveals that Judge  Young adequately explained his decision to sentence Snyder at the  midpoint of the applicable guideline range.  The government argued  exhaustively for such a sentence, based on the grounds that: (1)  Snyder had used the firearm underlying his § 922(g)(1) conviction in  an armed robbery on January 10, 1995; (2) pursuant to the arrest for  the armed robbery, the firearm was found in the trunk of a car along  with a ski mask and duct tape, indicating Snyder intended to use the  firearm for future unlawful conduct; and (3) Snyder had a criminal  record considerably more serious than the minimum necessary to  trigger the applicable guideline range.  While Judge Young chose to  defer to Judge Harrington's finding that Snyder had not committed the  armed robbery of January 10, see note 4 supra, he ultimately agreed  with the government's recommendation based on the other two grounds  it proffered:


35
This case seems to be a quintessential case for the  imposition of the penalty that the Congress has required  to be imposed.


36
. . . .


37
[T]he record of crimes of violence here, the setting which  I find supported by the facts, the finding of the mask and  duct tape with the weapon, the evidence . . . amply  justifies the inference that this weapon was being carried  . . . for the purpose of aiding and abetting another  felony, [and] against this background justifies the  sentence of the Court.


38
In context, the court's explanation was sufficiently specific to meet  the requirements of § 3553(c).


39
Snyder's second claim is that Judge Young erred in  declining to depart downward.  Specifically, Snyder argues that Judge  Young failed to give adequate consideration to four potential grounds  for downward departure: (1) Snyder's conviction rested on an  erroneous jury instruction; (2) the government improperly paid a key  witness in exchange for his testimony; (3) there was no compelling  federal interest in prosecuting Snyder's "local" offense; and (4)  Snyder's criminal history category overstated the seriousness of his  criminal past.  All of the asserted grounds are meritless.


40
The first two asserted grounds are insufficient for  departure as a matter of law.  Snyder invokes U.S.S.G. § 5K2.0, which  grants a judge discretion to depart downward if "there exists . . .  [a] mitigating circumstance of a kind, or to a degree, not adequately  taken into consideration by the Sentencing Commission."  But the  invocation comes up short.  Even assuming Snyder's conviction rested  on an erroneous jury instruction and the testimony of an unlawfully  compensated witness,5 Snyder has entirely failed to explain how  either factor is relevant to sentencing.  He does not claim, for  example, that the government paid a witness to testify so as to  exaggerate certain features of his offense, in an attempt at  manipulating his sentence.  Cf. United States v. Montoya, 62 F.3d 1,  3-4 (1st Cir. 1995).6


41
Rather, Snyder's claim seems to rest on the view that a  trial error or prosecutorial misdeed in and of itself permits  downward departure.  Such a view, however, misconceives § 5K2.0 as  though it were an alternative avenue for post-conviction relief.  If  Snyder did in fact suffer a faulty trial or tainted prosecution, he  may properly seek to vacate his conviction, but not to shorten his  sentence.  The district court correctly arrived at the same  conclusion with respect to the jury instruction issue:


42
I . . . as an institutional matter reject the argument  that some alleged misstep in the trial warrants a lower  sentence.  That's not the way to proceed.  But if there  has been, I'll address that in the petition for habeas  corpus.7


43
Only in those rare cases where a procedural flaw raises concerns of  particular relevance to sentencing -- as opposed to mere concerns  about the propriety of the defendant's conviction -- may downward  departure be warranted under § 5K2.0.  See United States v. Crippen,  961 F.2d 882, 885 (9th Cir. 1992) ("for a factor to be considered  [mitigating], it must be tied to some penological purpose or  legitimate sentencing concern" (emphasis in original)); cf. United  States v. Martinez, 136 F.3d 972, 979-80 (4th Cir. 1998) (finding  ineffective assistance of counsel by itself to be irrelevant to  sentencing); Crippen, 961 F.2d at 885 (same).  The same is true as to  prosecutorial misconduct.  Compare United States v. Valencia-Lucena,  925 F.2d 506, 515 (1st Cir. 1991) (stating general rule that "[a]  sentencing departure is not warranted in response to conduct of the  government . . . ."), with Montoya, 62 F.3d 1, 4-5 (recognizing that  departure may be warranted in the "extreme and unusual case" where  government has engaged in "sentencing factor manipulation").8


44
Snyder's third asserted ground for departure -- the  supposed lack of any compelling federal interest to justify his  federal prosecution -- is likewise flawed as a matter of law.  It is  not a compelling federal interest, but merely a federal interest,  that is required to justify a defendant's federal prosecution.  Here,  such interest is supplied by the Commerce Clause.  See United States v. Cardoza, 129 F.3d 6, 10-11 (1st Cir. 1997).  Snyder concedes that  § 922(g)(1) is constitutionally valid and that it provided sufficient  legal authority for his federal prosecution.  He nonetheless insists  that his offense was purely "local," that the federal government's  sole motive in prosecuting him was to lengthen his prison time by way  of the Sentencing Guidelines, and that in such circumstances, § 5K2.0  allows a judge to depart downward in order to check the government's  intemperate -- albeit legal -- use of its prosecutorial discretion. We rejected this very argument in Snyder II:


45
[I]t is a bedrock principle of our system of criminal  justice that a federal judge may not interfere with the  government's prosecutorial decisions solely to vindicate  his subjective view of the wisdom of a given enforcement  strategy.  It follows inexorably that the government's  lawful selection of Snyder for federal prosecution has no  relevance to the sentencing inquiry.


46
136 F.3d at 70 (internal quotation marks and citations omitted).  The  district court thus committed no error in refusing to consider the  wisdom of Snyder's prosecution as a ground for departure.


47
Fourthly, Snyder asserts that his criminal history  category overstates the seriousness of his prior criminal record,  warranting a downward departure pursuant to U.S.S.G. § 4A1.3.  Snyder  concedes that his record includes numerous convictions, but he  emphasizes their vintage.  His last violent felony conviction, he  claims, was in 1984; his subsequent offenses he deems "minor."9


48
A district court is entitled to depart on such ground, but  the refusal to depart is not reviewable at all unless the district  court mistakenly believed that it lacked such authority.  Snyder  contends that Judge Young misunderstood his argument to be that he  had undergone "extraordinary rehabilitation"; as a result, Snyder  says, Judge Young failed to appreciate that he was being asked to  depart under § 4A1.3, and that he had the authority to so depart. But while Judge Young did state that he rejected "the argument that  there has been extraordinary rehabilitation," the context makes clear  that this characterization was simply a gloss he put on the argument. As the judge later stated: "The record of crimes of violence here . .  . justifies the sentence of the Court."  There is thus no reason to  believe that Judge Young misunderstood his authority to depart under  § 4A1.3.

C.  Motion for New Trial

49
Snyder lastly appeals the district court's denial of his  motion for a new trial.  The motion was based on his successful  collateral attack in 1998 of his 1992 stalking conviction.10  The  essence of Snyder's argument is that even though the stalking conviction was still valid when he was found in possession of a  firearm in 1995, the conviction can no longer serve as a predicate  for his § 922(g)(1) offense now that it has been vacated.  And  because all of his other convictions are also problematic as  predicates -- or so he claims11 -- Snyder argues he must be awarded a  new trial so that he may be given the opportunity to argue that he  was not a "felon" for purposes of § 922(g)(1) at the time he was  caught possessing a firearm.


50
Snyder's argument runs directly contrary to the Supreme  Court's decision in Lewis v. United States, 445 U.S. 55 (1980).  In  that case, the Court considered whether a successful collateral  attack on a prior felony conviction means that the conviction may no  longer serve as a predicate for purposes of 18 U.S.C. § 1202(a)(1), a  predecessor to § 922(g)(1).  The Court held that under § 1202(a)(1)  "a felony conviction imposes a firearm disability until the  conviction is vacated or the felon is relieved of his disability by  some affirmative action, such as a qualifying pardon or a consent  from the Secretary of the Treasury."  Id. at 60-61.  The Court went  on to state that "Congress clearly intended that the defendant clear  his [felon] status before obtaining a firearm."  Id. at 64 (emphasis  in original).  Thus it concluded that "§ 1202(a)(1) prohibits a felon  from possessing a firearm despite the fact that the predicate felony  may be subject to collateral attack on constitutional grounds."  Id. at 65.  Moreover, the Court specifically found "little significant  difference" between § 1202(a)(1) and § 922(g)(1) in this regard.  Id. ("[T]o limit the scope of §§ 922(g)(1) and (h)(1) to a validly  convicted felon would be at odds with the statutory scheme as a  whole.").


51
Snyder points to cases where a defendant has been  sentenced under § 924(e), the Armed Career Criminal Act, which  imposes a 15-year mandatory minimum if the defendant has three prior  violent felony convictions.  As to those cases, we have held that the  defendant is entitled to resentencing upon eliminating a necessary  predicate conviction in support of the sentence -- even if the  conviction was still valid at the time the sentence was imposed. Snyder argues by analogy that if in such circumstances "an enhanced  sentence must be vacated, certainly a conviction must be vacated as  well."


52
Some support for this argument might be thought to come  from our decision in United States v. Pettiford, 101 F.3d 199 (1st  Cir. 1996), a case construing § 921(a)(20), which defines what counts  as a predicate conviction for the purposes of both § 922(g)(1) and §  924(e).  Though not mentioned in our decision, § 921(a)(20) had by  that time been amended in 1986 -- after Lewis was decided -- to  provide that "[a]ny conviction which has been expunged . . . shall  not be considered a conviction for purposes of this chapter . . . ." 18 U.S.C. § 921(a)(20)(B).  We held, without mentioning Lewis, that  the section could be read to exclude convictions valid at the time of  sentencing but expunged subsequently.  See id. at 201.


53
However, Pettiford was a sentencing case and its holding  must be read in that context.  Pettiford merely holds that a  conviction expunged after sentencing can no longer serve as a  predicate for a § 924(e) sentencing enhancement.  It does not hold  that a conviction expunged after a § 922(g)(1) offense can no longer  serve as a predicate for that offense.  The two situations call for  differential treatment.  As we noted in United States v. Paleo, 9  F.3d 988 (1st Cir. 1992), the federal gun laws, such as 922(g)(1),  reflect "the desirability of having a clear, bright line in respect  to gun possession: one who has a felony conviction on the books, a  conviction not yet set aside, should simply know not to possess a  gun."  Id. at 989.  By contrast, we saw no rationale for a bright-line rule with respect to § 924(e), so we found it appropriate to  treat vacated convictions differently for purposes of that section. See id.  We recognized an important distinction: "Lewis is  inapplicable where prior convictions are used to determine the  punishment, rather than to define the offense."  Id. (quoting United  States v. Clawson, 831 F.2d 909, 914-15 (9th Cir. 1987)).  Pettiford goes no further than this.  Because prior convictions are used to  define § 922(g)(1), Lewis still applies to this case.  See alsoUnited States v. Morgan, 216 F.3d 557, 562-67 (6th Cir. 2000), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Sept. 13, 2000) (No.  00-6270) (Lewis still applies to § 922(g)(1) offenses notwithstanding  1986 amendments to § 920(a)(20)); United States v. Kahoe, 134 F.3d  1230, 1234 (4th Cir. 1998) (same).12


54
Therefore, under Lewis, Snyder's belated success in  vacating his 1992 stalking conviction bears no relevance to his  conviction under § 922(g)(1).  At the time that he was caught  possessing a firearm, the 1992 conviction was still in effect, as was  § 922(g)(1)'s concomitant prohibition on his possessing a firearm. The district court thus did not err in denying Snyder's motion for a  new trial.

III. CONCLUSION

55
For the foregoing reasons, the various rulings of the  district court are affirmed.



Notes:


1
  Section 455(a) modified, but did not eliminate, the duty to  sit doctrine.  SeeaIn re Martinez-Catala, 129 F.3d 213, 221 (1st Cir.  1997).  The duty to sit doctrine originally not only required a judge  to sit in the absence of any reason to recuse, but also required a  judge to resolve close cases in favor of sitting rather than recusing. Section 455(a) eliminated the latter element of the doctrine, Blizard,  601 F.2d at 1220, but not the former, id. at 1221.  "In this sense,  i.e., that judges hear cases unless there is some reason not to, the  'duty to sit' remains."  Id.


2
  Rarely, we have found that a judge erred by recusing himself,  rather than by refusing to do so.  El Fenix de Puerto Rico v. The M/Y  Johanny, 36 F.3d 136, 140 (1st Cir. 1994); cf. United States v. Arache,  946 F.2d at 140 (considering defendant's (waived) claim that judge  should not have recused himself but finding no plain error).


3
  Perhaps the most famed example of spontaneous recusal is that  of Justice Frankfurter, a self-described victim of bus background  music, in a case challenging the broadcasting of such music on city  buses.  Public Utils. Comm'n v. Pollak, 343 U.S. 451, 466-67 (1952)  (Frankfurter, J., recusal opinion).


4
  Although not contested here, the applicable guideline range  has been a matter of some dispute in the case.  In Snyder I, Judge  Harrington found that Snyder had not committed armed robbery with the  handgun he was convicted of possessing, contrary to the government's  contention.  Consequently, his offense level was set at 33 rather than  34, and the applicable guideline range was determined to be 235 to 293  months rather than 262 to 327 months.  See 954 F. Supp. at 21.  At  resentencing, Judge Young was initially inclined to find that Synder  had in fact committed armed robbery with the handgun, but deferred to  Judge Harrington's finding, which was not appealed in Snyder I, as the  law of the case.  The government does not attempt to appeal this aspect  of Judge Young's sentencing decision here.


5
  While we need not reach the issue, we note that the  government did not unlawfully compensate any witness in this case.  As  a general matter, promises of leniency or material assistance given by  the government in exchange for a witness's testimony do not violate  federal bribery laws.  United States v. Lara, 181 F.3d 183, 198 (1st  Cir.), cert. denied, 528 U.S. 979 (1999).  We have acknowledged that  "there are surely outer limits on what a prosecutor can do in offering  benefits to a witness," United States v. Murphy, 193 F.3d 1, 9 (1st  Cir. 1999); but the defendant offers no support for his assertion that  the compensation provided here -- housing, modest subsistence payments,  help in securing lenient dispositions of pending state court cases --  approached these outer limits.


6
  Indeed, the testimony that Snyder claims to have been the  object of a government bribe was that Snyder had committed an armed  robbery with the firearm underlying his conviction.  But this testimony  had no impact on Snyder's sentence.  Judge Harrington explicitly found  the testimony not to be credible for purposes of sentencing, seeaSnyder  I, 954 F. Supp. at 21, and Judge Young deferred to this finding at  resentencing, see supra note 4.


7
  As to Snyder's witness compensation claim, the district court  simply remarked that the claim had no relevance to sentencing.


8
  In United States v. Rowe, 202 F.3d 37 (1st Cir. 2000), we  questioned whether Valencia-Lucena remains good law in the wake of Koon v. United States, 518 U.S. 81 (1996).  See 202 F.3d at 40-41.  Koon generally discourages courts from categorically refusing to consider  certain factors under § 5K2.0, see 518 U.S. at 94, and so certainly  would disfavor a rule categorically disqualifying government misconduct  as a potential ground for departure.  But here, we adopt no such rule. We merely state the obvious: government misconduct may serve as a  ground for departure, but only if relevant in some particular way to  sentencing.  See United States v. Dethlefs, 123 F.3d 39, 47 (1st Cir.  1997) ("Notwithstanding that most categorical interpretations are  disfavored under the Koon Court's regime, some boundaries are essential  if the guidelines are not to be emptied of all meaning.")


9
  This characterization is, to put it mildly, not entirely  honest.  Snyder was in jail for most of the time from 1984 until his  arrest in this case in 1995, which obviously limited his opportunities  for criminal conduct.  Moreover, when Snyder was out on parole, he was  found guilty in 1990 of selling heroin, arrested in 1991 for assault  and battery upon a police officer, convicted in 1992 of stalking a  woman who had a restraining order against him, and arrested again in  1992 for robbery -- all hardly "minor" crimes.  Finally, it is worth  noting that Snyder was assigned 20 criminal history points in his pre-sentencing report; a mere 13 would have been sufficient to place Snyder  in his criminal history category of VI.  It is little wonder that the  trial court was not impressed with this argument.


10
  The attack was based on Commonwealth v. Kwiatkowski, 637  N.E.2d 854 (Mass. 1994), in which the Massachusetts Supreme Judicial  Court held that, as a constitutional matter, a certain Massachusetts  stalking statute had to be interpreted so as to require at least three  incidents of harassing the victim.  Id. at 858.  Snyder apparently had  engaged in several such incidents, but only one occurred after the  effective date of the statute.


11
  Snyder claims that until the Supreme Court's 1998 decision  in United States v. Caron, 524 U.S. 308 (1998), it was not clear  whether his older Massachusetts convictions could serve as predicates,  and therefore the convictions were problematic as predicates at the  time of his indictment.  Because we find that, in any event, Snyder's  stalking conviction was valid as a predicate, we do not address this  second argument.


12
  Both Morgan and Kahoe rejected the holding of Pettiford,  apparently construing the case to apply to § 922(g)(1) cases as well as  § 924(e) cases.  Morgan, 216 F.3d at 565; Kahoe, 134 F.3d at 1234-35. But because, as we hold here, Pettiford is properly restricted to the  latter context, it is not in actual tension with Morgan and Kahoe.


