

                      [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]

                  UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT

                                             

Nos. 97-1681
     97-1682

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                      FRANK RICHARD MERLINO,

                      Defendant, Appellant.

                                             

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Steven J. McAuliffe, U.S. District Judge]                                                                 

                                             

                              Before

                Selya and Boudin, Circuit Judges,                                                          

                and Dowd,* Senior District Judge.                                                          

                                             

     Bjorn Lange, Assistant Federal Defender, for appellant.                          
     Jean  B. Weld, Assistant  United States Attorney,  with whom                            
Paul M.  Gagnon, United  States Attorney, was  on brief,  for the                         
United States.

                                             

                        November 12, 1997
                                             

               
*Of the Northern District of Ohio, sitting by designation.

          Per Curiam.   In these  sentencing appeals    there are                    Per Curiam.                              

two, but they  may for practical purposes be treated  as a single

unit    defendant-appellant Frank Richard Merlino  challenges the

district  court's use of  an upward  departure under  USSG  4A1.3

(Nov. 1992).   By order dated  October 9,  1997, we directed  the

district court to file a  written report amplifying the basis for

the extent of the  departure.  The court  promptly complied.   We

then  afforded   the  parties  an  opportunity  for  supplemental

briefing.

          We have  carefully examined  the record,  including but

not  limited  to   the  presentence  investigation  report,   the

transcript  of the sentencing  hearing, and the  district court's

supplementary  report of its  departure findings.   We  have also

studied the  parties'  briefs,  entertained  oral  argument,  and

consulted  the  applicable  legal   authorities.    This   review

persuades  us beyond serious question that the district court had

both a solid factual basis for concluding that Merlino's criminal

history score  substantially underrepresented  his criminal  past

and  a sound legal  basis for the ensuing  upward departure.  See                                                                           

United States  v. Brewster, No.  97-1448, slip op. at  16-18 (1st                                    

Cir. Oct.  2, 1997)  (describing requirements  for invoking  USSG

 4A1.3); United States v. Black, 78 F.3d 1, 9-10 (1st Cir. 1996);                                         

United  States  v. Aymelek,  926  F.2d  64,  73 (1st  Cir.  1991)                                    

(similar).  Our review also  convinces us that the district court

followed the proper protocol and  did not abuse its discretion in

determining the  extent of the  departure.  See  Brewster, supra,                                                                          

                                2

slip op. at 20-23 (discussing reasonableness requirement for such

departures); United States v. Hardy, 99 F.3d 1242, 1253 (1st Cir.                                             

1996) (similar).

          Because these determinations  are heavily influenced by

the particular facts  of Merlino's case, we  do not think that  a

detailed discussion would serve a  useful purpose.  From the very

inception of the federal sentencing guidelines, we have cautioned

that "[s]entencing appeals  prosecuted . . . in  the tenuous hope

that lightning may strike ought not to be dignified with exegetic

opinions, intricate factual synthesis, or full-dress explications

of accepted legal principles."  United States v. Ruiz-Garcia, 886                                                                      

F.2d 474, 477 (1st Cir. 1989).  We then wrote, in words that have

particular pertinence  today:  "Assuredly,  a criminal  defendant

deserves his  day in  court;  but we  see no  purpose in  wasting

overtaxed judicial resources razing castles in the air."  Id.                                                                       

          We need go no  further.  This case   which  presents no

fairly  debatable question     is a  paradigmatic  example of  an

instance in which summary disposition is appropriate.

Affirmed.  See Loc. R. 27.1.          Affirmed.  See Loc. R. 27.1.                        

                                3
