
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-1606                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 WILLIAM H. CARVELL,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Stahl and Lynch, Circuit Judges.                                            ______________                                 ____________________            James R. Bushell for appellant.            ________________            Helene Kazanjian, Assistant United States Attorney, with whom  Jay            ________________                                               ___        P.  McCloskey,  United  States   Attorney,  and  George  T.  Dilworth,        _____________                                    ____________________        Assistant United  States  Attorney,  were on  brief,  for  the  United        States.                                 ____________________                                   January 19, 1996                                 ____________________                      LYNCH,  Circuit Judge.   William  Carvell, a  fifty                      LYNCH,  Circuit Judge.                              _____________            year old Maine  farmer, was sentenced  to prison for  seventy            months on  marijuana  charges.   The  question on  appeal  is            whether the Sentencing Guidelines prohibited the trial  judge            from exercising discretion to depart downward in the sentence            given.  Carvell  pled guilty to growing  marijuana, saying it            was for his  own use  to combat his  depression and  suicidal            tendencies.  The trial  judge concluded that, as a  matter of            law,  the Guidelines' "drug  dependency" prohibition overrode            any  downward departure under  the "lesser  harms" provision.            The  judge  also noted  that, but  for the  "drug dependency"            departure prohibition,  he would  have  reduced the  sentence            through a downward  departure.   We hold that  the court  did            have  authority to  consider a  downward departure  under the            "lesser   harms"   provision   and  return   the   case   for            resentencing.                        Carvell also  raises for  the first time  on appeal            the  argument that  the  marijuana manufacturing  statute, as            applied  to him, is invalid in the aftermath of United States                                                            _____________            v. Lopez, 115 S. Ct. 1624 (1995).  We decline to go down that               _____            path.                      Having  never lived  anywhere but  his family  farm            (save  during his  nine  month  marriage),  and eking  out  a            subsistence living,  Carvell  grew crops  and  produced  some            marijuana on  his  six  acre  family farm  in  Lyman,  Maine.            Carvell  lived there with his mother and with his father, for                                         -3-                                          3            whom  he had  cared as  the father's  death came.   Carvell's            formal  education stopped with high school; and his only pre-            arrest work experience, other  than on the farm, was  a brief            stint at the Portsmouth Naval Shipyard.                       Law   enforcement   officials,   acting    on   an            informant's tip  and an aerial  overview of the  farm, raided            the  farm and found 467  marijuana plants, an Excedrin bottle            containing marijuana seeds, some growing supplies and smoking            paraphernalia and some more  marijuana in the barn.   Because            the Sentencing Guidelines count each plant as equivalent to 1            kilogram,  the  plants, together  with  the other  marijuana,            amounted  to  468  kilograms  of  marijuana  attributable  to            Carvell.1  U.S.S.G.   2D1.1(c) (Nov. 1994).                      Carvell  was  arrested  on Halloween  in  1994  and            indicted on one count of knowingly "manufacturing" marijuana.            21 U.S.C.     841(a)(1) & (b)(1)(B).  Carvell cooperated with            the police, the Maine Drug  Enforcement Agency, and the  U.S.            Attorney, and pled guilty.                                            ____________________            1.  In fact the plants weighed 67 pounds or 30 kilograms, but            the  Guidelines require  that each  plant be  counted  as one            kilogram when  the offense  involves more than  fifty plants.            U.S.S.G.   2D1.1(c).  This  is because "Congress intended  to            punish growers  of marihuana  by  the scale  or potential  of            their  operation and not just by the  weight [or size] of the            plants  seized at a given moment."  United States v. McMahon,                                                _____________    _______            935  F.2d 397,  401 (1st  Cir.)(citation and  quotation marks            omitted; alteration in original),  cert. denied, 502 U.S. 897                                               _____ ______            (1991).  The district court here took judicial notice that in            fact plants may not produce one kilogram each.                                         -4-                                          4                      During the time  after his preliminary hearing  and            before his  plea, Carvell  was released from  custody on  the            condition that  he not use marijuana.   Consequently, Carvell            became depressed  and suicidal and was admitted  to the Maine            Medical  Center.    He  was  kept  for  two  weeks,  received            medications and therapy and was released to jail.                      At his sentencing  hearing, Carvell testified  that            he suffered from severe depression  since the mid 1960's  and            that his illness made  him feel suicidal.  He  sought medical            help  in  1968,  was  diagnosed  as  suffering  from  chronic            depression and  was  prescribed  medication.    Carvell  also            testified that he became ill from the medication and that his            physician  recommended that  he  use marijuana  to treat  his            depression.  He tried it, found that it helped and so he kept            on.  In 1970  Carvell was arrested for selling  three fourths            of a pound  of marijuana and was remanded to the state prison            in   Thomaston,  Maine   for   nine  months.     During   his            incarceration  he was  told by  the prison  psychiatrist that            marijuana relieved depression.  In 1988,  he was arrested for            cultivating marijuana and sentenced  to five years in prison.            Carvell continued to use marijuana  in violation of the terms            of  his  probation  under the  1988  sentence.    As for  the            marijuana he grew in 1994, he said it was to insure he had an            adequate  supply  to  get  him  through  the  year.   Carvell            admitted  that  he  intermittently  sold  some  marijuana  to                                         -5-                                          5            friends  without making a profit, saying it was mostly to the            same person, also suffering  from depression.  The government            did not contest Carvell's claim of psychiatric illness.                        Carvell,   under  new  medication  from  the  Maine            Medical Center, addressed the district court, saying:                      [T]he only reason I used marijuana was to                      keep  from being  suicidal, and  that now                      that I  have found  a   proper medication                      that really  works . . .  I don't believe                      that  I would ever  be tempted  . .  . in                      breaking the law to treat my depression.            The district court found Carvell credible, that Carvell had a            history of major depression,  that he had been advised  by at            least one  doctor that marijuana was  an effective treatment,            that   Carvell  had  not   previously  found  an  alternative            medication and  that Carvell was sincere both in stating that            he used marijuana to  prevent himself from attempting suicide            and in believing he no longer needed marijuana.                      The district court concluded:                      Were 5H1.4 not so  clear, I would grant a                      departure under 5K2.11, the  lesser harms                      policy statement . .  . . I am absolutely                      convinced, in light of the testimony I've                      heard,   that   Mr.   Carvell   sincerely                      believed that  he  had a  severe  medical                      problem  that would lead him to seriously                      consider suicide, and  that to avoid that                      situation  he  committed  the   crime  of                      providing  for  himself  marijuana.   The                      policy statement [section 5K2.11] goes on                      to  say,  "In  such  instances  a reduced                      sentence  may  be  appropriate,  provided                      that   the  circumstances   significantly                      diminish society's  interest in punishing                      the conduct."   I  would find that  to be                      the  case here . . . . [F]or all of those                                         -6-                                          6                      reasons,  I  would depart  downward under                      the  lesser harms  provision and  I would                      depart downward to the mandatory minimum                      of  60 months in this case.  But I do not                      do   so,  because   I  believe   [as  the                      government   has   argued],  that   5H1.4                      precludes    that   kind    of   analysis                      [paragraph structure omitted].            The government also said  it believed the Guidelines  gave it            no flexibility as to its recommendation.            Guidelines Analysis            ___________________                      The question  presented is  a legal one  of whether            Guidelines  section  5H1.4,  concerning "Physical  Condition,            Including Drug . .  . Dependence or Abuse" prohibits  a trial            judge on  these facts  from considering a  downward departure            under  Guidelines   section   5K2.11,  the   "lesser   harms"            provision.   We  give substantial  deference to  the district            court's  findings  that   the  factual  predicates   for  the            application  of both  section  5H1.4 and  section 5K2.11  are            present.                      Review of  the sentencing court's fact  findings is            for clear error  and we "will not  disturb supported findings            unless our scrutiny of the record convinces us that a serious            mistake was made."   United  States v. Sklar,  920 F.2d  107,                                 ______________    _____            110-11 (1st  Cir. 1990) (citations omitted).   The sentencing            court  found that:  (i) Carvell  had a  psychological problem            that precipitated  his dependence;  (ii) Carvell  believed he            needed  to use  marijuana in  order  to prevent  himself from            committing  suicide;  (iii) he  had tried  legally prescribed                                         -7-                                          7            drugs, but they had  failed, and he had turned  to marijuana;            (iv) at least one doctor had advised Carvell to use marijuana            to  alleviate his  problem;  and (v)  Carvell  would not  use            marijuana again because he  had found legally available drugs            that worked to solve  his problem.  The district  court found            that  Carvell believed that using marijuana  was the only way            he  could keep from committing suicide and that, as a factual            matter, Carvell would qualify  for a downward departure under            the  lesser harms  provision of  the Guidelines.   These fact            determinations  are for  the  sentencing court.   See  United                                                              ___  ______            States v.  Rivera, 994 F.2d  942, 950  (1st Cir. 1993).   The            ______     ______            record contains no basis  for disturbing the district court's            fact findings here.                        We  review de  novo the  legal question  of whether                                 __  ____            section 5H1.4 precludes any downward  departure under section            5K2.11.  See United States v. Schultz, 970 F.2d 960, 962 (1st                     ___ _____________    _______            Cir.  1992)  ("The  legal  determination  as  to  the  proper            interplay  among  related guidelines  is  subject to  plenary            review."),  cert.  denied,  113  S.  Ct. 1020  (1993).    The                        _____  ______            government  urged and the  sentencing judge felt  that he was            barred  from  granting  Carvell a  downward  departure  under            section   5K2.11,2  the  "lesser  harms"  provision,  because                                            ____________________            2.  Section 5K2.11 provides in pertinent part:                      Lesser Harms (Policy Statement)                      ____________                                         -8-                                          8            section  5H1.43  prohibits   downward  departures  for   drug                                            ____________________                      Sometimes, a defendant may commit a crime                      in  order to  avoid  a perceived  greater                      harm.    In  such  instances,  a  reduced                      sentence  may  be  appropriate,  provided                      that   the  circumstances   significantly                      diminish society's  interest in punishing                      the conduct,  for example, in the case of                      a  mercy killing.   Where the interest in                      punishment or deterrence is  not reduced,                      a   reduction   in   sentence    is   not                      warranted. . . .                      In other instances, conduct may not cause                      or threaten the harm or evil sought to be                      prevented  by  the  law  proscribing  the                      offense at  issue.  For example,  where a                      war  veteran possessed  a machine  gun or                      grenade as a trophy,  or a school teacher                      possessed  a   controlled  substance  for                      display  in a  drug education  program, a                      reduced sentence might be warranted.            U.S.S.G.   5K2.11, p.s. (Nov. 1994).            3.  Section 5H1.4 provides in relevant part:                      Physical  Condition,  Including  Drug  or                      _________________________________________                      Alcohol   Dependence  or   Abuse  (Policy                      ________________________________                      Statement)                      . . . Drug or alcohol dependence or abuse                      is not a  reason for imposing  a sentence                      below the guidelines.  Substance abuse is                      highly   correlated   to   an   increased                      propensity to commit crime.  Due  to this                      increased risk, it is  highly recommended                      that a defendant who is incarcerated also                      be sentenced to supervised release with a                      requirement that defendant participate in                      an     appropriate    substance     abuse                      program. . . .            U.S.S.G.   5H1.4, p.s. (Nov. 1994).                                         -9-                                          9            "dependence" or  "abuse."   Section 5H1.4 provides  that drug            "dependence  or abuse is not a reason for imposing a sentence            below  the  Guidelines,"  U.S.S.G.     5H1.4,  p.s. (emphasis            added), while section 5K2.11 allows a departure in sentencing            where a  defendant "commit[s]  a crime  to avoid  a perceived            greater harm,"  U.S.S.G.   5K2.11,  p.s., in  this case,  the            taking of his own life.                      We  hold that  a  district court  has authority  to            consider a downward departure under section  5K2.11, provided                                                                 ________            there  is  an appropriate  factual  predicate,  even if  that            _____________________________________________            predicate subsumes particular  facts that would  be precluded            by section 5H1.4 from forming a basis for departure.  To hold            otherwise  would  be  inconsistent  with the  intent  of  the            Commission as  expressed in  the relationship between  Part H            and Part K, in section 5K2.11 itself, and in the relationship            among other sections  of the  Guidelines.  It  would also  be            inconsistent  with the  method  of analysis  adopted by  this            Circuit in United  States v.  Sklar, 920 F.2d  107 (1st  Cir.                       ______________     _____            1990).                       The  structure of  the Guidelines  illuminates that            there is no necessary conflict between the two sections.  Cf.                                                                      ___            United Savings Ass'n  v. Timbers of  Inwood Forest, 484  U.S.            ____________________     _________________________            365,  371 (1988) (individual  statutory provisions  should be            interpreted  in   light  of  their   relationship  to   other            provisions).   The  "drug dependence" downward  departure bar                                         -10-                                          10            appears  in Chapter 5, Part  H of the  Guidelines, which sets            forth  "specific  offender  characteristics"  that  "are  not            ordinarily  relevant  to  the  determination  of  whether   a            sentence should be  outside the applicable  guideline range."            U.S.S.G.  Ch.5,  Pt.H,  intro. comment.    Having discouraged            certain types of characteristics in Chapter 5, Part H as "not            ordinarily relevant" to departures,  the Commission then went            on in Part K  of Chapter 5 to specify permissible grounds for            departures.   U.S.S.G. Ch.5, Pt.K.   Part K  first provides a            general  statement concerning  departures in  cases involving            factors   not  adequately   considered  by   the  Commission.            U.S.S.G.    5K2.0, p.s.   Part K then  lists specific grounds            that  may warrant  departure,  including  the "lesser  harms"            provision.                      In light of this structure, the fact that  a factor            described  in Chapter 5, Part H as a discouraged or forbidden            ground for departure  is present  in a case  does not  itself            necessarily  negate departure  based on a  permissible ground            carefully  detailed  by the  Commission in  Part  K.   Part K            complements Congress' goal that the Guidelines not be imposed            "in a mechanistic fashion."  S. Rep. No. 225, 98th  Cong., 2d            Sess. 4 (1984), reprinted  in 1984 U.S.C.C.A.N. 3182, 3234-35                            _________  __            ("The sentencing guidelines system will not remove all of the            judge's sentencing  discretion.   Instead, it will  guide the            judge in making his  decision on the appropriate sentence.").                                         -11-                                          11            Congress  intended  "the sentencing  judge  [to  act on  her]            obligation to consider all the relevant factors in a case and            to impose a sentence outside the guidelines in an appropriate            case."  1984 U.S.C.C.A.N. at 3235.                      The  limitation contained  within the  text  of the            "lesser harms" provision, section  5K2.11, sheds light on its            scope in relation  to section 5H1.4.  Section 5K2.11 provides            that "[w]here the interest in punishment or deterrence is not            reduced, a reduction in sentence is not warranted."  U.S.S.G.              5K2.11, p.s.   Here, where the record  clearly demonstrates            that the  alternative to  Carvell's marijuana use  might well            have  been  the  taking of  his  own  life,  the interest  in            punishment   or  deterrence  of  drug  "manufacturing"  could            reasonably be thought  to be  reduced.  In  contrast, in  the            ordinary drug  dependence case, it  is difficult  to see  how            that  limitation in  section 5K2.11  could be  avoided.   The            Commission  has   specified   that  society's   interest   in            punishment and deterrence outweighs the "drugs made me do it"            excuse  for  crimes committed  to feed  drug habits  or while            under  the  influence  of  drugs.    U.S.S.G.    5H1.4,  p.s.            Moreover, claims of being driven  to drugs by the habituation            of  prior  drug   use,  disadvantaged   upbringing  or   poor            socioeconomic  life  conditions  have  been  weighed  by  the            Commission and found insufficient ordinarily to overcome  the                                         -12-                                          12            societal interest in  deterrence and  punishment.4   U.S.S.G.               5H1.4, p.s., 5H1.10, p.s. & 5H1.12, p.s.                      This  is  not a  case  where  the defendant's  drug            dependence is  the very element driving  the applicability of            the  "lesser  harms" provision.    The  risk of  suicide  for            Carvell  was not  a  byproduct of  his  drug dependence:  the            district  court credited  Carvell's  testimony  that fear  he            would take his own life led him to use drugs, not vice versa.            The avoidance  of suicide, not  drug use, drives  the "lesser            harms" analysis here.                      Nor  is  there  reason  to think  that  a  downward            departure here  would be inconsistent with  U.S.S.G.   5H1.3,            p.s.,   which  discourages   consideration  of   "mental  and            emotional  conditions" as  grounds  for  departure.   Section            5H1.3  explicitly   permits  consideration  of   "mental  and            emotional conditions"  when they are provided  for in Chapter            5,  Part  K, Subpart  2.   U.S.S.G.    5H1.3,  p.s.   That is                                            ____________________            4.  Further, as  Judge Selya's important and  seminal article            on the  Sentencing Guidelines notes,  departures based solely            on  drug  dependence  could  "confer a  benefit  on  addicted            defendants  that is  unavailable to similarly  situated drug-            free defendants  (and thus would create  a perverse incentive            to develop such a problem)."   Bruce M. Selya & Matthew Kipp,            An Examination of Emerging Departure Jurisprudence  under the            _____________________________________________________________            Federal Sentencing  Guidelines, 67 Notre  Dame L. Rev.  1, 35            ______________________________            (1991)  (footnote  omitted).    No such  incentive  would  be            created by a downward departure here under section 5K2.11.                                           -13-                                          13            exactly  where  section  5K2.11  is located.5    Indeed,  the            Commission chose to leave the limitation in section 5K2.11 to            cases where the interest in  deterrence or punishment was not            reduced.  See U.S.S.G.  5K2.11.                      ___                      Our conclusion that the "drug dependence" departure            bar  does not  preclude  a "lesser  harms" departure  here is            consistent with the  law of this Circuit concerning whether a            defendant's post-arrest rehabilitation  from drug use can  be            considered  as a  sentencing  factor.   In  United States  v.                                                        _____________            Sklar, 920 F.2d 107  (1st Cir. 1990), this Court  said that a            _____            defendant's drug rehabilitation  could be taken  into account            at  least  as  a  factor in  deciding  whether  departure  is            warranted and that, if "significantly unusual," a defendant's            post-arrest rehabilitation might itself  provide a ground for            downward departure.6   This was so  although drug "dependence                                            ____________________            5.  See United States v.  Hines, 26 F.3d 1469, 1478  n.6 (9th                ___ _____________     _____            Cir.  1994)  (mental  and  emotional  conditions relevant  in            determination  that  upward  departure is  warranted  to  the            extent permitted in section 5K2.0); United States v. Russell,                                                _____________    _______            917 F.2d  512, 517  (11th Cir.  1990)  (mental and  emotional            conditions relevant in determination of downward departure to            the extent  provided in  section 5K2.12 (coercion  or duress)            and 5K2.13 (diminished capacity)), cert. denied, 499 U.S. 953                                               _____ ______            (1991); United States v. Saldana, Crim. No. 88-00196, 1989 WL                    _____________    _______            61140, *2 (M.D.Pa. May  19, 1989) (downward departure allowed            under the  "lesser harms" provision  where defendant's mental            and emotional  condition resulted in his  perception that the            commission of crime was warranted to avoid a greater harm).            6.  Sklar held that,  ordinarily, post-arrest  rehabilitation                _____            is not  a grounds  for departure because  such rehabilitation            can adequately be taken into account through the  granting of            acceptance-of-responsibility  credit under  U.S.S.G.   3E1.1.            See Sklar, 920 F.2d at 115-16.            ___ _____                                         -14-                                          14            or  abuse"  necessarily  precedes  rehabilitation,  like  sin            precedes salvation.7  See id. at 115-16 & n.9.  There is even                                  ___ ___            less  reason to  believe  that section  5H1.4 bars  departure            here, where the defendant's perception that he was avoiding a            greater harm,  unlike a  defendant's drug rehabilitation,  is            expressly  permitted  by  the  Guidelines  as  a  ground  for            downward departure.8   Cf.  United States  v. Hines, 26  F.3d                                   ___  _____________     _____            1469, 1478 (9th Cir. 1994)  (district court had authority  to            consider  upward departure  from Guidelines  criminal history            category based  on defendant's dangerous  mental condition as            provided in U.S.S.G.   4A1.3, even though mental condition is            ordinarily discouraged  as a ground for  departure by section            5H1.3).                      Concluding  that  the  "drug dependence"  provision            does  not here  bar  a downward  departure where  the "lesser                                            ____________________            7.  See  also United States v.  Harrington, 947 F.2d 956, 962                ___  ____ _____________     __________            (D.C.  Cir. 1991) (en banc).  In his dissent, Judge Silberman            took  the contrary  position  that  rehabilitation cannot  be            taken  into   account  either  under  section   3E1.1  or  in            considering departure  from the Guidelines  sentence, arguing            that "the Commission rejected drug dependence   and therefore            rehabilitation   as a sentencing factor under section 5H1.4."            Id. at 970 (Silberman, J., dissenting).            ___            8.  Similarly,   in  section   5K2.12,  the   Commission  has            explicitly  allowed departures  where  coercion or  duress is            shown.  The fact that age or gender might be a factor in such            coercion  has not  barred such  departures, although  each is            itself prohibited as a ground for departure under U.S.S.G.               5H1.1, p.s. & 5H1.10, p.s.  See United States v. Johnson, 956                                        ___ _____________    _______            F.2d 894, 898  (9th Cir. 1992);  United States v.  Whitetail,                                             _____________     _________            956  F.2d 857, 862 (8th Cir. 1992); United States v. Gaviria,                                                _____________    _______            804  F. Supp. 476,  479-80 (E.D.N.Y. 1992);  United States v.                                                         _____________            Naylor, 735 F. Supp. 928, 929 (D. Minn. 1990).            ______                                         -15-                                          15            harms" provision simultaneously provides a permissible ground            for  such a departure,  we reach and  reject the government's            argument  that there  is  yet another  bar.   The  government            argues  that  marijuana's  classification  as  a  Schedule  I            substance under the Controlled  Substances Act, see 21 U.S.C.                                                            ___              812, evidences  a legislative determination  that marijuana            "has no currently accepted medical use for treatment," id. at                                                                   ___              812(b)(1)(B), and thus  precludes a  downward departure  on            the facts here.  That conclusion does not follow.                      There   is   no  inconsistency   between  Carvell's            downward  departure claim and the classification of marijuana            as  a Schedule  I  substance.   Deciding  whether a  downward            departure is warranted under section 5K2.11 in this case does            not  require  an  examination  of  whether  marijuana  has  a            ___            "currently accepted medical  use," 21 U.S.C.   812(b)(1)(B),9            or  satisfies the other factual  criteria for being listed on            Schedule  I.  Nor does the section 5K2.11 inquiry even depend            upon  a  determination of  whether  the  medical benefits  of            Carvell's marijuana use in his particular case outweighed the            risks.   Rather, the sole dispositive  question under section            5K2.11  is  whether    taking as  given  that marijuana  is a                                              _____            Schedule I  substance and has no  "currently accepted medical            use for treatment"   the defendant here committed the offense                                            ____________________            9.  See  also 57  Fed.  Reg. 10,499,  10,506 (Mar.  26, 1992)                ___  ____            (final order of Administrator  of DEA, setting forth specific            criteria for finding "currently accepted medical use").                                         -16-                                          16            conduct "in order  to avoid a  perceived greater harm,"  thus            falling  under section  5K2.11.   We  hold that  the district            court had  discretion to consider a  downward departure under            section 5K2.11.            Carvell's  Commerce Clause  Attack on  21 U.S.C.    841(a)(1)            _____________________________________________________________                      Carvell  argues that  there  was no  crime, as  the            district court lacked subject  matter jurisdiction in that 21            U.S.C.    841(a)(1),  as applied  to him,  exceeded Congress'            power  under the Commerce Clause.  He raises the argument for            the  first  time on  appeal,  positing that  the  argument is            nonetheless timely because his guilty plea was entered before            the  decision  in United  States v.  Lopez,  115 S.  Ct. 1624                              ______________     _____            (1995).                      More than  ever, we  have reason  to adhere  to the            normal rule that issues not raised below will not be heard on            appeal unless there was plain error.  United States v. Olano,                                                  _____________    _____            113  S. Ct. 1770,  1776-77 (1993); United  States v. Luciano-                                               ______________    ________            Mosquera, 63 F.3d  1142, 1156 (1995).  This  is not a change-            ________            in-the-law  situation  which  might  incline  us  to  a  more            sympathetic  view of the  failure of counsel  to be prescient            enough to raise an issue in  the trial court when the law was            firmly against defendant at  the time.  Cf. United  States v.                                                    ___ ______________            London, 66  F.3d 1227,  1239-40 (1st  Cir. 1995)  (waiver was            ______            excusable where instructions, when given, were in  accordance            with newly  minted en  banc decision  of the First  Circuit);                                         -17-                                          17            United  States  v. Collins,  60 F.3d  4,  7 (1st  Cir. 1995).            ______________     _______            Lopez  was argued to the  Supreme Court on  November 8, 1994,            _____            and  the challenges made there  were no secret.   Carvell was            arrested on October  31, 1994,  his plea was  on January  23,            1995,  and he  was sentenced  on  June 1,  1995.   Lopez  was                                                               _____            decided on April 26,  1995, well before Carvell's sentencing,            giving him ample  time to move to withdraw  his plea based on            Lopez.            _____                      Not only  does Carvell's  claim not fit  within the            category of  exceptional cases where review  of waived issues            will be permitted,  United States v. Krynicki, 689  F.2d 289,                                _____________    ________            291-92  (1st Cir.  1982), but  there is  every reason  not to            undertake to resolve a  matter as serious a challenge  to the            constitutionality  of  a  criminal  statute  without adequate            notice to the government  and without the benefit of  a fully            developed   factual  record  (to the  extent necessary),  the            sharpening of the issues at  trial, and the district  court's            reasoning.   We decline the  invitation to so  engage.10  The                                            ____________________            10.  Carvell's argument faces the additional  barrier that it            is made in the context of a valid guilty plea.  A guilty plea            and  the ensuing conviction comprehend all of the factual and            legal  elements   necessary  to  sustain  the   judgment  and            sentence,  and any  subsequent  attack on  the conviction  is            normally  limited to inquiry as  to the validity  of the plea            and plea  hearing.  See United States v. Broce, 488 U.S. 563,                                ___ _____________    _____            569 (1989); United States v. Martinez-Martinez, 69 F.3d 1215,                        _____________    _________________            1224 (1st  Cir. 1995);  Valencia v.  United States,  923 F.2d                                    ________     _____________            917, 920 (1st  Cir. 1991).   However, since  Carvell has  not            preserved his  Commerce Clause challenge for  appeal, we need            not  decide whether  this doctrine  also  bars his  claim, or            whether any of the  narrow exceptions that exist where  it is                                         -18-                                          18            district  court's  "failure" to  consider sua  sponte whether            there  were  Commerce  Clause  restrictions   to  defendant's            prosecution was not clearly  in error, and did not  produce a            gross  miscarriage  of   justice  or  seriously   affect  the            fairness,  integrity  or  public reputation  of  the judicial            proceedings.  Olano, 113 S. Ct. at 1779.                          _____            Conclusion            __________                      The sentencing court determined that it would grant            Carvell  a downward  departure  of ten  months under  section            5K2.11,  the  "lesser  harms"  provision,  to  the  mandatory            minimum sentence of  sixty months, were such a  departure not            barred by section 5H1.4.  Having concluded that section 5H1.4            does  not bar  the  departure in  this  case, we  vacate  the                                                              ___________            sentence  and remand  for resentencing  with the  instruction            _____________________________________________________________            that  Carvell be sentenced to the  mandatory minimum of sixty            _____________________________________________________________            months.              ______                                            ____________________            evident  that "on  the face of  the record  the court  had no            power to enter the conviction or impose the sentence," Broce,                                                                   _____            488 U.S. at 569, are available here.                                         -19-                                          19
