
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1732                                    UNITED STATES,                                      Appellee,                                          v.                                   ROBERTO ROSALES,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                     [Hon. Carmen C. Cerezo, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________               Lydia Lizarribar-Masini for appellant.               _______________________               Miguel A.  Pereira, Assistant  United States  Attorney, with               __________________          whom Guillermo Gil,  United States Attorney, and  Jose A. Quiles-               _____________                                _______________          Espinosa, Senior Litigation Counsel, were on brief for appellee.          ________                                 ____________________                                    March 31, 1994                                 ____________________                      BOWNES, Senior Circuit Judge.   Defendant-appellant                      BOWNES, Senior Circuit Judge.                              ____________________            Roberto Rosales  appeals  his conviction  for abusive  sexual            contact in violation of  18 U.S.C.   2244(a)(1).1   He argues            that the  district court  abused its discretion  by admitting            explanatory  expert  witness  testimony,  and   that  remarks            contained in  the prosecutor's closing argument  deprived him            of  a  fair trial.    In addition,  defendant  challenges his            sentence  on  the ground  that  the  district court's  upward            departure  from the  Sentencing Guidelines  was unreasonable.            We affirm defendant's conviction, but vacate his sentence and            remand the case for resentencing.                                          I.                                          I.                                      BACKGROUND                                      BACKGROUND                                      __________                      Defendant is a former  elementary school teacher at            Antilles Elementary School, located at  Fort Buchanan, Puerto            Rico.  The school is administered by the United States Navy.                                             ____________________            1.  Section 2244(a)(1) provides in pertinent part:                      Whoever,  in  the  special  maritime  and                      territorial  jurisdiction  of the  United                      States  .  . .  knowingly  engages  in or                      causes sexual contact  with or by another                      person, if to  do so would violate .  . .                      (1)  section 2241  of the  title had  the                      sexual contact  been a sexual  act, shall                      be fined under this title, imprisoned not                      more than ten years, or both.            18 U.S.C.   2244(a)(1).   Section 2241(c) makes it  a federal            crime to engage, or attempt to engage, in a sexual act with a            person  under   the  age   of  twelve,  in   the  territorial            jurisdiction        of        the       United        States.                                         -2-                                          2            Complaints of inappropriate touching led  to an investigation            of defendant,  which resulted  in an indictment  charging him            with  six counts  of abusive  sexual contact  involving three            minor  victims.2   The  charges arose  from allegations  that            defendant had touched, kissed and rubbed against three of his            former students.                      Each  victim was  a  student of  defendant for  one            school year, and all  three testified that numerous incidents            of sexual contact occurred throughout their time in the third            grade.  The government also presented the expert testimony of            Dr. Nancy Slicner, a  child psychologist, who testified about            the general  behavioral characteristics exhibited  by victims            of child sexual abuse.                      The jury  found defendant  guilty as charged.   The            trial judge sentenced defendant to 120 months imprisonment on            each count,  with the  sentences to  run concurrently.   This            appeal ensued.                                         II.                                         II.                                      DISCUSSION                                      DISCUSSION                                      __________            A.  Expert Testimony            A.  Expert Testimony                ________________                      Defendant  first  argues  that the  district  court            erroneously admitted  the expert testimony of  Dr. Slicner, a            child psychologist  who testified  for the government.   More                                            ____________________            2.  Although defendant was originally  charged in a six count            indictment,  two counts  were  voluntarily dismissed  by  the            government prior to trial.                                         -3-                                          3            precisely, defendant argues that the  expert testimony should            have  been  excluded  because  it  improperly  bolstered  the            testimony of  the minor victims, and  therefore its probative            value was outweighed  by its prejudicial  effect.  At  trial,            however, no  objection was made  to the admissibility  of Dr.            Slicner's testimony.   Therefore, any error  in the admission            of the evidence  was not  preserved for appeal.   See  United                                                              ___  ______            States  v. Castro-Lara, 970  F.2d 976,  980 (1st  Cir. 1992),            ______     ___________            cert.  denied,  113  S. Ct.  2935  (1993);  United  States v.            _____  ______                               ______________            Serrano, 870 F.2d 1, 10 n.9 (1st Cir. 1989); see also Fed. R.            _______                                      ___ ____            Evid.  103(a)(1).     Our   standard  of  review   under  the            circumstances  is  "plain  error,"    see  United  States  v.                                                  ___  ______________            Figueroa, 976 F.2d 1446, 1453 (1st Cir. 1992), cert.  denied,            ________                                       _____  ______            113 S. Ct. 1346 (1993), and we will reverse only if the error            "`seriously  affect[ed]  the  fairness, integrity  or  public            reputation  of [the] judicial  proceeding[].'"  United States                                                            _____________            v.  Geer, 923 F.2d 892,  896 (1st Cir.  1991) (quoting United                ____                                               ______            States v.  Young, 470 U.S.  1, 15 (1985)  (internal quotation            ______     _____            marks and  citation omitted));  see United States  v. Olivio-                                            ___ _____________     _______            Infante,  938 F.2d 1406,  1411 (1st Cir.  1991) (under "plain            _______            error" review  we will  reverse only  where a  miscarriage of            justice has occurred).                      Defendant focuses  his  argument on  Dr.  Slicner's            testimony  that the way in which  the minor victims discussed            the incidents of  sexual abuse with  her was consistent  with                                         -4-                                          4            the  manner generally  exhibited  by children  who have  been            sexually  abused or  molested.   Dr.  Slicner explained  that            children generally  "tend to  be reluctant,  they tend  to be            embarrassed,   uncomfortable,   ashamed  of   what  happened.            They're  very uncomfortable giving details.   I see  a lot of            that.  And I saw that in these children."                      Defendant relies on the Ninth Circuit's decision in            United  States v. Binder, 769 F.2d 595 (9th Cir. 1985), where            ______________    ______            the court  held that the district  court erroneously admitted            expert testimony addressed directly to the credibility of the            abused children.  The court found reversible error because,                      "[t]he testimony of the experts . . . was                      not    limited     to    references    to                      psychological literature or experience or                      to  a discussion  of  a class  of victims                      generally.  Rather the  experts testified                      that  these  particular children  in this                      particular case  could be believed.   The                      jury  in  effect was  impermissibly being                      asked to accept an expert's determination                      that  these   particular  witnesses  were                      truthful."             United States v. Antone, 981 F.2d 1059, 1062 (9th Cir. 1992)             _____________    ______            (quoting Binder, 769 F.2d  at 602).  According to  the court,                     ______            the  effect of  the experts'  testimony  was to  "bolster the            children's  story  and  to   usurp  the  jury's  fact-finding            function."   Id.  In  Binder, however, the  court conducted a                         ___      ______                                         -5-                                          5            "harmless error"  review, a standard far  less demanding than            that of "plain error."3                      Although  trial  judges  are  afforded  significant            leeway in determining  whether otherwise admissible  evidence            is unfairly prejudicial  under Fed. R. Evid.  403, see United                                                               ___ ______            States v. Spinosa, 982  F.2d 620, 628-29 (1st Cir.  1992), we            ______    _______            have  recognized that  "proffered  expert  testimony  [c]ould            create  a substantial danger of undue prejudice . . . because            of its  aura  of special  reliability  and  trustworthiness."            United  States v. Fosher, 590  F.2d 381, 383  (1st Cir. 1979)            ______________    ______            (collecting  cases);  accord United States v. Boney, 977 F.2d                                  ______ _____________    _____            624, 631 (D.C. Cir. 1992).                      We   agree  with   defendant  that   Dr.  Slicner's            testimony  sent an  implicit  message to  the  jury that  the            children had testified  truthfully, and this might  therefore            have interfered with the jury's function as the sole assessor            of  witness   credibility.    But,   even  assuming  (without            deciding) that the  district court improperly  calibrated its            scales  in balancing  the probative  value of  this testimony                                            ____________________            3.  Were  we  reviewing  the  objectionable  portion  of  Dr.            Slicner's  testimony for  harmless  error, we  would have  to            decide whether  "it can be  said `with fair  assurance, after            pondering all that happened  without stripping the  erroneous            action   from  the   whole,   that  the   judgment  was   not            substantially swayed by the error.'"  United States  v. Ladd,                                                  _____________     ____            885 F.2d  954,  957 (1st  Cir.  1989) (quoting  Kotteakos  v.                                                            _________            United States, 328 U.S. 750 (1946)).            _____________                                         -6-                                          6            against  its  prejudice  to  defendant,4 any  error  was  not            "plain."                      Our  conclusion is  based on  two factors.   First,            defendant offered the  testimony of its  own expert, a  child            psychiatrist, who sought to  undermine the credibility of Dr.            Slicner.   According  to defendant's  expert, the  interviews            conducted  by Dr. Slicner of  the children were  too short to            allow  Dr. Slicner to  assess their  stories accurately.   In            addition, defendant's expert stated that the children's trial            testimony,  which  she  listened  to  attentively,  was   not            consistent with testimony that  one would expect from victims            of child  abuse.  Second,  the district court  instructed the            jury as follows:                           During  the  trial  you   heard  the                      testimony .  . . of Dr. Nancy Slicner who                      was  presented  by the  government .  . .                      [a]nd we  also heard the testimony of Dr.                      Martinez Lugo presented by  the defendant                      . .  . .   If scientific or  technical or                      other specialized  knowledge may assist[]                      the juror in understand[ing] the evidence                      or determining facts  in issue, a witness                      qualified as an expert  . . . may testify                      before  the jury  and  state  an  opinion                      concerning  such  matters.    Now  merely                                                    ___________                      because an expert  witness has  expressed                      _________________________________________                      an opinion does  not mean, however,  that                      _________________________________________                      you as jurors must accept this opinion.                      _______________________________________                                            ____________________            4.  Under  prevailing  law, relevant  evidence,  such  as Dr.            Slicner's testimony, is admissible unless its probative value            is   "substantially  outweighed"  by   the  risk   of  unfair            prejudice, confusion,  or waste of  time.   United States  v.                                                        _____________            Argencourt, 996 F.2d 1300, 1305 (1st Cir 1993); Fed. R. Evid.            __________            403.                                         -7-                                          7                           The  same as with any other witness.                      It  is up  to you  to decide  whether you                      _________________________________________                      believe  the testimony of  the expert and                      _________________________________________                      choose to rely upon it.                      _______________________            Trial Transcript, Vol. XIV at pp. 864-65 (emphasis added).                      Not  only  was  the  jury   presented  with  expert            testimony directly contradicting the  objectionable testimony            offered by  Dr. Slicner, but, the  court expressly instructed            the jurors that they were free to reject the opinions offered            by  the  experts.    Under  the  circumstances,  we  are  not            persuaded that Dr. Slicner's  testimony was so prejudicial to            defendant "as  to undermine  the fundamental fairness  of the            trial and contribute to a miscarriage of justice."  Geer, 923                                                                ____            F.2d at 897 (internal quotation marks and citation omitted).            B.  Improper Argument            B.  Improper Argument                _________________                      Defendant   next  contends  that  comments  by  the            prosecutor to the jury  during closing arguments deprived him            of  a fair  trial.   According to  defendant, the  prosecutor            impermissibly vouched for the credibility of the government's            witnesses in his response  to defense counsel's argument that            the FBI had fabricated evidence.  The prosecutor stated:                      Then  they  are also  implying  here, the                      defense  is implying  that there  is some                      kind  of conspiracy, that  the FBI wanted                      to  fabricate a case against Mr. Rosales,                      a school teacher  at Antilles  Elementary                      School.    Like  the  FBI  would  have  a                      special interest  in this  man.   But for                      you  to believe  that story,  you [w]ould                      also  have  to  believe  that  the United                      States,  Mr. Pereira [the other AUSA] and                      myself are part of that  conspiracy.  And                                         -8-                                          8                      that we would blend [sic] ourselves to do                      something such as improper  and unethical                      conduct.            Defense counsel objected to this remark.  The court sustained            the objection, and warned the prosecutor that "[t]he evidence            has  to do  with  the participation  of  the FBI  agents  [in            gathering evidence],"  and that he  should not go  beyond the            evidence.    No curative  instruction  was  requested by  the            defense,  and none was  given.   Moreover, defendant  did not            move for a mistrial.                      When a prosecutor places the credibility of counsel            at issue, the advantage lies solidly with the government, and            thus, prosecutors are  prohibited from doing so.   See United                                                               ___ ______            States  v. Cresta, 825 F.2d  538, 555 (1st  Cir. 1987), cert.            ______     ______                                       _____            denied,  486 U.S.  1042 (1988);  see also   United  States v.            ______                           ___ ____   ______________            Nickens, 955  F.2d 112, 121  (1st Cir.)  (prosecutor may  not            _______            express personal  assurances  about conclusions  to be  drawn            from the  evidence),  cert. denied,  113 S.  Ct. 108  (1992);                                  _____ ______            United States  v. Rodriguez-Estrada,  877 F.2d 153,  158 (1st            _____________     _________________            Cir. 1989) (same);   United States v. Mejia-Lozano,  829 F.2d                                 _____________    ____________            268, 273 (1st Cir. 1987) (same).    Because this is precisely            what  the prosecutor in this case did, there is no doubt that            his  argument was  improper.   And,  the government  concedes            this.  Nevertheless, a new trial is not warranted.                      The question  is whether the  prosecutor's argument            was sufficiently prejudicial to warrant a new trial under the                                         -9-                                          9            circumstances.     This  requires  that  we   engage  in  the            functional  equivalent  of  the  familiar   "harmless  error"            analysis.   See United States  v. Brown, 938  F.2d 1482, 1489                        ___ _____________     _____            (1st Cir.),  cert. denied, 112 S. Ct.  611 (1991); Rodriguez-                         _____ ______                          __________            Estrada,  877  F.2d at  159;  Fed.  R. Crim.  P.  52(a).   In            _______            determining whether the prosecutor's remark was harmless, "we            consider  a range of factors, starting with the nature of the            prosecutor's (mis)conduct  and  ending with  the  unavoidable            bottom  line:  whether  we deem it  likely, or  not, that any            prejudice  affected the  outcome  of the  case."   Rodriguez-                                                               __________            Estrada,  877 F.2d at 159.   In conducting  this analysis, we            _______            evaluate  the prosecutor's  comments  in the  context of  the            trial as  a whole,  not  in isolation.    See id.;  see  also                                                      ___ ___   ___  ____            Nickens, 955  F.2d at 121.   While we have no  doubt that the            _______            prosecutor's  argument  was  wholly inappropriate,  which  is            conceded  by  the  government  on  appeal,  reversal  is  not            warranted for the following reasons.                      First,  the prosecutor did not repeatedly place his            credibility in issue, or extend his argument beyond the scope            of  the evidence.  His improper statement was an isolated one            and,  as such, was less  likely to impact  the outcome of the            case.  See Brown, 938 F.2d at 1489; Mejia-Lozano, 829 F.2d at                   ___ _____                    ____________            274.     Second,  the  issue   of  the  credibility   of  the            government's witnesses, particularly  the children, was fully            developed at  trial, and  the jury  was instructed that  they                                         -10-                                          10            alone  were  charged with  judging  the  credibility of  each            witness.   This diminishes  any likelihood that  the jury was            swayed by the prosecutor's "vouching."   See Cresta, 825 F.2d                                                     ___ ______            at 556.                       Next,   although  the  court   did  not  explicitly            instruct  the jury  to  disregard  the prosecutor's  improper            remark,  it sustained  defendant's objection  and immediately            warned the  prosecutor  (in the  presence of  the jury)  that            defendant's allegations concerned misconduct only by the FBI,            and that his argument should be limited to the evidence.                      Finally, the trial court repeatedly  instructed the            jury as to the proper role of argument in the case.  Prior to            counsel's  opening statements, again before their summations,            and once again in its charge, the court explained to the jury            that  the attorney's  arguments were  not evidence,  and that            only the  testimony of  the witnesses and  admitted documents            were  evidence.    See,  e.g.,   Brown,  938  F.2d  at   1489                               ___   ____    _____            (instruction that  arguments of counsel are  not evidence can            remove prejudicial taint of improper argument); United States                                                            _____________            v. de Leon Davis, 914  F.2d 340, 345 (1st Cir. 1990)  (same).               _____________            Although there  are circumstances  where such  an instruction            may not be  sufficient given the  nature of the  prosecutor's            argument, see Arrieta-Agressot v.  United States, 3 F.3d 525,                      ___ ________________     _____________            529 (1st  Cir. 1993)  (court's instruction that  arguments of            counsel are  not evidence not enough  to counteract prejudice                                         -11-                                          11            from emotionally charged summation  where "the danger was not            so much that the jury would consider the prosecutor's remarks            to  be  `evidence.'     Rather,  the  threat   was  that  the            prosecutor's remarks would excite the jury, invite a partisan            response, and distract its attention  from [the merits of the            case]."), such circumstances are not present here.                      We  have  reviewed  the transcripts  of  the  trial            testimony  in this case, in  addition to the  briefs, and are            convinced  that the objectionable  remark, viewed in context,            and in light of the court's instructions to the jury, did not            affect  the outcome of  the trial.   Defendant's trial lasted            for  ten days, and each party  was afforded one hour in which            to deliver its  summation.   It is highly  unlikely that  the            jury's  verdict could  have  been the  result  of this  brief            remark by the prosecutor.   We conclude that the  verdict was            based  upon the  testimony, and  the jury's  belief  that the            government's witnesses were credible.                      Defendant also argues that the prosecutor, in other            portions  of   his  summation,  improperly  vouched  for  the            credibility of  government witnesses  and commented  on facts            not in evidence.  We have carefully reviewed the prosecutor's            closing argument and rebuttal, and find that these statements            were  not improper.   The  allegedly improper  statements are            little  more than words and phrases taken out of context from            the prosecutor's  argument.    When  the  allegedly  improper                                         -12-                                          12            statements  are  read in  full and  in  context, we  can find            nothing  objectionable about them.   Furthermore,  because no            contemporaneous objection  was made,  our review is  only for            plain error.  Arrieta-Agressot, 3 F.3d at 528; United  States                          ________________                 ______________            v. Smith, 982  F.2d 681,  682 (1st Cir.  1993); Nickens,  955               _____                                        _______            F.2d at 121.  Under the "plain  error" standard, we could not            order a new trial based on these remarks.  See United  States                                                       ___ ______________            v.  Soto-Alvarez,  958 F.2d  473,  477  (1st Cir.)  (improper                ____________            argument  constitutes plain error  only if  it "`undermine[s]            the fundamental fairness of the trial  and contribute[s] to a            miscarriage of  justice.'" (quoting  United  States v.  Soto-                                                 ______________     _____            Alvarez, 876 F.2d 209, 233 (1st Cir. 1989), cert. denied, 493            _______                                     _____ ______            U.S. 1030 (1990))), cert. denied, 113 S. Ct. 221 (1992).                                _____ ______            C.  The Upward Departure            C.  The Upward Departure                ____________________                      In   sentencing   defendant,  the   district  court            calculated  a Sentencing  Guidelines offense  level of  22 as            follows:  the "abusive sexual contact" base  offense level of            ten, U.S.S.G   2A3.4(a)(3);  plus six levels because none  of            the  victims  had   attained  the  age   of  twelve,  id.                                                                      ___            2A3.4(b)(1); plus four levels as a multiple count adjustment,            id.  3D1.4; plus two  levels based on defendant's abuse  of a            ___            position of trust in a manner that facilitated commission  of            the  offense, id.     3B1.3.    The  court  then  placed  the                          ___            defendant   into  Criminal   History   Category  I.     These            calculations produced a Guideline Sentence range of forty-one                                         -13-                                          13            to  fifty-one  months  imprisonment.    Id.  ch.  5,  part  A                                                    ___            (Sentencing Table).  The  court then departed upward pursuant            to      5K2.0  of  the   Sentencing  Guidelines,  effectively            increasing  defendant's offense  level to  31, and  imposed a            prison  term of  120 months.5   Defendant  contends that  the            degree of the upward departure was unreasonable.  18 U.S.C.              3742(e)(3).                      In United States v. Rivera, 994 F.2d  942 (1st Cir.                         _____________    ______            1993), we analyzed the  departure powers of sentencing courts            under the  Guidelines, and  recognized that cases  which fall            outside  of the "heartland," i.e.,  the "set of typical cases                                         _____            embodying  the conduct  that each  guideline  describes," are            candidates for departure.  Id. at 947.                                         ___                      At defendant's sentencing the district court found,                      there  are  aggravating  factors in  this                      case.  . .  .   [T]hat  defendant Rosales                      repeatedly  engaged  in similar  criminal                      behavior  as .  .  .  represented by  the                      counts of the convictions with the minors                      named  in  the  indictment,  conduct  for                      which he was  not charged.   The evidence                                            ____________________            5.  Section  5K2.0  provides that  the  sentencing  court may            impose a  sentence outside of  the range  established by  the            applicable guideline if the court finds                      that  there  exists  an   aggravating  or                      mitigating circumstance of a kind,  or to                      a  degree,  not  adequately   taken  into                      consideration    by     the    Sentencing                      Commission in  formulating the Guidelines                      that   should   result   in  a   sentence                      different from that described.            U.S.S.G.   5K2.0, p.s. (quoting 18 U.S.C.   3553(b)).                                         -14-                                          14                      at trial showed that defendant engaged in                      uncharged  incidents  of  abusive  sexual                      contact with minor RG on  five occasions,                      with  minor MQ  on several  occasions and                      minor VT  almost on a  daily basis during                      one school year.            The district court concluded  that, "based on multiplicity of            incidents  of  abusive  sexual  contact  that  the  defendant            Roberto  Rosales  engaged  [in]  with  minors  named  in  the            indictment, the Court departs to  an offense level of thirty-            one."                      The  court went  on  to state  that the  Guidelines            range for offense level thirty-one, where the defendant had a            criminal history rating of  I, was 120-135 months.   This was            incorrect.    The correct  range is  108-135  months.   It is            unclear whether  the court sentenced defendant  to 120 months            on each count because  (1) it meant to sentence  defendant at            the  low  end  of the  incorrect  range,  or  (2) because  it            intended  to impose  the  statutory maximum  for each  count.            Thus, defendant  might very well have been  prejudiced by the            court's failure to identify the guideline range the court had            in  mind.   But,  because we  vacate defendant's  sentence on            other grounds, see infra  pp. 15-18, we need not  pursue this                           ___ _____            line of thought.                      We review a sentencing  court's decision to  depart            by  examining  "(1) whether  the reasons  the court  gave for            departing  are the sort that  might permit a  departure in an            appropriate case;  (2) whether the record  supports a finding                                         -15-                                          15            of facts demonstrating the existence of such reasons; and (3)            whether,  given the  reasons, the  degree of  departure [from            about  four years to ten]  is reasonable."   United States v.                                                         _____________            Mendez-Colon, No. 93-1346, slip  op. at 3 (1st Cir.  Jan. 19,            ____________            1994); see United  States v. Diaz-Villafane, 874  F.2d 43, 49                   ___ ______________    ______________            (1st Cir.),  cert. denied, 493  U.S. 862 (1989);  Rivera, 994                         _____ ______                         ______            F.2d at 950.                      With respect to the first prong of our analysis, we            have recognized that "[s]ome  district court decisions that a            particular  case  is  unusual  enough  to  warrant  departure            reflect sentencing  experience of a sort  one typically finds            in district, not  appellate, courts."  United  States v. Doe,                                                   ______________    ___            No.  92-2331, slip op. at 5 (1st  Cir. Mar. 18, 1994).  Thus,            we review the  district court's determination that  a case is            unusual,  and   therefore  warrants  departure,   "with  full            awareness of, and  respect for, the trier's superior feel for            the case."  United  States v. Legarda, No. 93-1448,  slip op.                        ______________    _______            at 10 (1st Cir.  Mar. 3, 1994)  (quoting Rivera, 994 F.2d  at                                                     ______            952 (citations  and internal  quotation marks omitted)).   On            the  other   hand,  "where  departure  decisions   reflect  a            determination of the purpose of,  or an interpretation of the            language in,  a guideline  or  statute,"   plenary review  is            appropriate.  Doe, slip op. at 5. In   the    present   case,                          ___            defendant argues  merely that, because  the indictment covers            the entire time period during which defendant's multiple acts                                         -16-                                          16            allegedly occurred, an upward  departure cannot be based upon            these  acts.  This contention  is without merit.   Under this            indictment, defendant's  offense level would  remain the same            regardless of whether he engaged in four or four hundred acts            of  misconduct.     The  pivotal  question   is  whether  the            persistent  and  repetitive  nature of  defendant's  conduct,            charged or uncharged, is an appropriate ground for departure.            In other words, is this case "unusual" relative to the garden            variety  sex   offender  case?    Here,   defendant  has  not            challenged the  district court's determination  that his case            was  outside of the  "heartland," and therefore  worthy of an            upward  departure.   Given the  respect that  we extend  to a            sentencing  court's  determination  as  to  whether  a  given            circumstance makes                                         -17-                                          17            a case "unusual," see Doe, slip op. at 5; Rivera, 994 F.2d at                              ___ ___                 ______            952, we do not believe  that the district court erred  in its            decision to depart from the Guidelines.                      As for the  second part of  our review, the  record            provides an  ample basis for the  district court's conclusion            that defendant engaged in multiple acts of misconduct  over a            prolonged period of time.  The frequent and continuous nature            of defendant's conduct is set out in the Pre-Sentence Report.            Because  no objection  was lodged  with respect to  the PSR's            contents, these facts could be accepted as true and accurate.            See United States v. Ramirez, 11 F.3d 10, 14 (1st Cir. 1993);            ___ _____________    _______            United  States v. Citro, 938 F.2d 1431, 1445 (1st Cir. 1991),            ______________    _____            cert.  denied, 112  S. Ct.  902 (1992)  and  112 S.  Ct. 1997            _____  ______            (1992).  Thus, the  district court's finding of circumstances            supporting a departure was not clearly erroneous.  See United                                                               ___ ______            States  v. Mendez-Colon, No. 93-1346, slip op. at 5 (1st Cir.            ______     ____________            Jan. 19, 1994).                      Finally,  we must  determine whether the  extent of            the court's upward departure  was reasonable.  See  Doe, slip                                                           ___  ___            op. at 20; 18 U.S.C.   3742(e)(3) (length of sentence imposed            must be reviewed for its "reasonableness").  In examining the            reasonableness of a departure,  we must consider, inter alia,                                                              _____ ____            "the reasons  for the imposition of  the particular sentence,            as                                          -18-                                          18            stated  by  the  district  court  .  .  .  ."    18 U.S.C.               3742(e)(3)(B).                      Here the district court articulated the grounds for            its  upward  departure,  and  then departed  upward  by  nine            offense  levels,   without  explaining  its  choice  of  this            particular   figure.     Although   sentencing  courts   have            substantial  "leeway"  with  respect  to the  "degree"  of  a            departure,  see Doe, slip op.  at 20-21, Rivera,  994 F.2d at                        ___ ___                      ______            950, this  freedom does not  relieve a sentencing  court from            explaining its ultimate decision  of how far to depart.   See                                                                      ___            18 U.S.C.   3553(c)(2) (sentencing court must state "specific            reason[s]" for  imposing a  "particular sentence" outside  of            the guideline range); United States v. Ocasio, 914 F.2d  330,                                  _____________    ______            336  (1st  Cir. 1990)  (Generally,  a  sentencing judge  must            articulate not only his or her reason for departing . . . but            must  also offer a rationale  for the degree of departure.");            see also United States v. Kelly, 1 F.3d 1137, 1144 (10th Cir.            ___ ____ _____________    _____            1993) ("a district court must specifically articulate reasons            for  the  degree  of  departure.   Merely  explaining  why  a            departure was made does  not fulfill the separate requirement            of stating the reasons for imposing the particular sentence."            (citations and internal quotations omitted)).  Absent such an            explanation,  we  cannot  assess  the  reasonableness of  the            court's   nine-level   upward   departure.       Accordingly,                                         -19-                                          19            defendant's sentence is vacated,  and we remand the  case for            resentencing.6                      So ordered.                      So ordered.                      __________                                            ____________________            6.  Given   our  ruling,  we   need  not   reach  defendant's            contention  that his sentence must be  vacated because he was            not  afforded  a  reasonable  opportunity  to  review various            addenda to the Pre-sentence Report prior to sentencing.                                         -20-                                          20
