             United States Court of Appeals
                        For the First Circuit

No. 10-1739

                       UNITED STATES OF AMERICA,

                              Appellant,

                                  v.

                           ROBERT PROSPERI,

                         Defendant, Appellee.


No. 10-1741

                       UNITED STATES OF AMERICA,

                              Appellant,

                                  v.

                         GREGORY A. STEVENSON,

                         Defendant, Appellee.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF MASSACHUSETTS

            [Hon. Richard G. Stearns, U.S. District Judge]


                                Before

                  Boudin and Lipez, Circuit Judges,
                      and Smith,* District Judge.


     Cynthia A. Young, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for


     *
         Of the District of Rhode Island, sitting by designation.
appellant.
     E. Peter Parker for appellee Robert Prosperi.
     Michelle R. Peirce, with whom Bruce A. Singal and Donoghue,
Barrett & Singal, P.C. were on brief, for appellee Gregory
Stevenson.



                         July 13, 2012
            LIPEZ, Circuit Judge.         The United States challenges the

sentences    imposed     on   appellees       Robert   Prosperi      and   Gregory

Stevenson after their conviction of mail fraud, highway project

fraud, and conspiracy to defraud the government.                   Both appellees

were employees of Aggregate Industries NE, Inc. ("Aggregate"), a

subcontractor     that    provided      concrete       for    Boston's      Central

Artery/Tunnel project, popularly known as the "Big Dig."                        The

government charged that over the course of nine years Aggregate

knowingly    provided     concrete      that     failed      to    meet     project

specifications    and    concealed     that     failure      by   creating     false

documentation    purporting     to     show    that    the   concrete      provided

complied with the relevant specifications.                Several employees of

Aggregate, including Prosperi and Stevenson, were convicted of

criminal offenses for their roles in the scheme.

            At   sentencing,     the    district       court      calculated    the

guidelines sentencing range ("GSR") for Prosperi and Stevenson as

87- to 108-months incarceration.                Then, explaining fully its

rationale for a below-guidelines sentence, the court sentenced

Prosperi and Stevenson to six months of home monitoring, three

years of probation, and 1,000 hours of community service.                       The

government now appeals, arguing that under Gall v. United States,

552 U.S. 38 (2007), the sentences imposed by the district court

were substantively unreasonable and that the appellees' crimes

warrant incarceration.


                                       -3-
            We affirm.    Although the degree to which the sentences

vary from the GSR gives us pause, the district court's explanation

ultimately supports the reasonableness of the sentences imposed.

The district court emphasized that its finding on the loss amount

caused by the crimes, the most significant factor in determining

the GSR, was imprecise and did not fairly reflect the defendants'

culpability. Hence it would not permit the loss estimate to unduly

drive its sentencing decision.        Relatedly, it found that there was

insufficient evidence to conclude that the defendants' conduct made

the Big Dig unsafe in any way or that the defendants profited from

the offenses.    The court then supplemented these critical findings

with    consideration    of   the    individual    circumstances    of   the

defendants     and   concluded      that    probationary    sentences    were

appropriate.    We cannot say that it abused its discretion in doing

so.

                                      I.

A.    The Big Dig's Need for Concrete

            Boston's Central Artery/Tunnel project (the "Big Dig"),

lasting from 1991 to 2007, was one of the largest public works

projects in United States history at the time of its completion.

The project entailed replacement of a major elevated highway that

passed through central Boston with an underground expressway, as

well as the extension of I-90 to Logan Airport.            The Massachusetts

Highway Department, and later the Massachusetts Turnpike Authority


                                      -4-
("MTA"), both agencies of the Commonwealth of Massachusetts (the

"Commonwealth"), had primary responsibility for the project.    The

final cost of the project, approximately $14 billion, was funded

jointly by the Commonwealth and the federal government.

          Numerous private contractors were hired to help with the

construction, and many management responsibilities were delegated

to a joint venture between Bechtel Infrastructure and Parsons,

Brinkerhoff, Quade & Douglas, Inc. ("B/PB").    These two companies

worked as design consultants, performed engineering reviews, and

managed much of the construction.   Because of the scale and cost of

the project, responsibility for construction of various sections

was apportioned among different general contractors, and B/PB

worked with each in a coordinating role.    The general contractors

in turn contracted with various sub-contractors.    In total, there

were approximately 150 individual construction contracts awarded to

private companies in connection with the Big Dig. Each of the sub-

contractors was bound by the contract specifications and schedules

that were set out in general contracts with the Commonwealth.

          The Big Dig required approximately 4.2 million cubic

yards of concrete, 60 percent of which was provided by Aggregate.

For suppliers of concrete, the construction contracts required

that: 1) there be a certain mix design, or recipe, for the

concrete, based on the intended use; 2) the supplier have plants

with an automatic batching system that ensured the proper mixture


                               -5-
of each load, or batch, of concrete; 3) the sub-contractor have in

place recorders that captured information regarding the mix design,

as well as the date and time of batching for each load of concrete,

and provided a printout, called a "batch ticket," containing all of

the required information; 4) no additional water be added after the

concrete mixture was loaded into trucks for delivery; and 5) in

most circumstances, the concrete be in place at the construction

site within ninety minutes of the time it was mixed and loaded onto

trucks.

           The batch tickets were especially important because they

served as a quality control mechanism.      Aggregate's drivers would

give the batch tickets to B/PB inspectors as they delivered their

loads, and the tickets were left in a holding area close to the

placement so that inspectors or field engineers could check on the

characteristics of the concrete being placed.           In particular,

inspectors needed to know the time that the concrete was loaded,

the mix design, the volume loaded, and the amount placed.

B.   The Fraudulent Scheme

           At some point in the mid-1990s, Aggregate began to supply

concrete   to   the   Big    Dig   that   failed   to   meet   contract

specifications.   Of primary concern was Aggregate's practice of

topping-off loads of leftover concrete, sometimes of a different

mix design, with fresh concrete meeting contract specifications,

and providing the entire load as if it were fresh concrete.       Loads


                                   -6-
including leftover concrete were known as "10/9" loads, which was

the radio call signal that drivers would use to let the dispatcher

know that they had leftover concrete.            Historically, Aggregate had

provided 10/9 concrete to buyers on private projects, but it

initially refrained from doing so on the Big Dig.

            The decision to use 10/9 concrete on the Big Dig was made

by the management of Aggregate's Ready-Mix Concrete Division.

Prosperi,   who     was   the   General   Manager    of   the   Division,   and

Stevenson, who was its Operations Manager, played a major role in

making the decision and enforcing the policy. Once this policy was

in place, the practice of using 10/9 concrete became widespread at

Aggregate and leftover concrete was sent to the Big Dig on a daily

basis.     On one occasion, after a group of drivers dumped old

concrete, Stevenson told them not to do so again and that they

would be disciplined if they did.           Dispatchers were required to

keep logs of each use of leftover concrete and these logs were

provided to Prosperi, Stevenson, and others on a daily basis.

            Using    leftover    concrete   in    this    way   creates   safety

concerns because the concrete poured does not match the intended

mix design and may set more quickly than planned because of the

increased time between batching and placement.                  When he first

learned that 10/9 concrete was being sent to the Big Dig, Gerard

McNally, the head of Quality Control for Aggregate's Ready-Mix

Concrete    Division,     raised   concerns      about    the   practice,   and


                                     -7-
particularly about using such concrete in structural elements, such

as roof pours.       Despite his belief that it was improper, McNally

agreed, at Prosperi's request, to consult with dispatchers to

ensure that 10/9 loads were of a type that could be safely reused

on the Big Dig.      As McNally put it, "I realized that that's the way

it was going to be, and that as far as I was concerned, a better

thing for me to do was to get on board with the idea."

             Using the 10/9 logs, investigators were able to determine

approximately      how   many   loads    of    leftover    concrete      Aggregate

provided to the Big Dig.           From 1999 to 2004, Aggregate provided

approximately 2,638 such loads.               Although the records collected

went back only to 1999, Aggregate's practice of sending leftover

concrete to the Big Dig dated from the mid-1990s.                       Using the

available records to estimate the total number of 10/9 loads

Aggregate provided to the Big Dig, the government estimated that

Aggregate provided approximately 5,300 loads of 10/9 concrete over

the   life    of   the   project    without      the    knowledge   of       project

supervisors.       These loads amounted to approximately 1% of all of

the concrete provided by Aggregate to the Big Dig and 0.6% of all

the concrete used in the project.

             To conceal the 10/9 practice, Aggregate developed a

system that employees acknowledged was "designed to trick the

inspector."     After fresh concrete was loaded with some portion of

leftover     concrete,   Aggregate      employees      would   create    a    "dummy


                                        -8-
ticket" showing that a complete fresh load of concrete, meeting

project specifications, had been loaded.                To create the dummy

ticket, the computer running the batching system was put into

demonstration mode. Then the quantity and mix design called for by

the specifications was manually entered.               After the dummy ticket

was   printed,   a    copy   was   given    to   the   driver   to   present   to

inspectors at the Big Dig site.        This became a regular procedure on

the Big Dig.         In addition to this method, the clocks on the

batching computers would be set ahead to make it look like the load

had been batched later than it actually had, giving the drivers

more time to get the concrete to its destination.

           Occasionally, inspectors would come to Aggregate's plant

to ensure that the proper procedures were being followed.                  When

this happened, the batchmen, the Aggregate employees who loaded

each truck, would call the dispatchers using the phrase "city

plant" to signal that inspectors were present and no 10/9 loads

should be sent out.

           Additionally, there were instances when Aggregate ran out

of fly ash, an important ingredient in some of the mix designs.1

Aggregate supplied concrete to the Big Dig nonetheless, without



      1
       Fly ash, a coal residue, is an important element in certain
types of concrete because it improves the strength and durability
of concrete, increasing resistance to salts used to keep roads
clear of ice. Fly ash is particularly important for concrete mix
designs intended for use in bridges and tunnels.       All of the
structural concrete used on the Big Dig required fly ash.

                                      -9-
informing project supervisors of the absence of fly ash.               As with

the 10/9 loads, Aggregate would falsify batch tickets to make it

appear as if the concrete provided contained the requisite fly ash.

Although the problem with the supply of fly ash was intermittent,

it became so bad at one point that McNally informed Prosperi that

Aggregate had two choices: "either run straight cement [without fly

ash]       or   we   stop   loading."     McNally   testified   that   Prosperi

responded "[w]e never stop loading."            It is unclear how many loads

of concrete without required fly ash were provided to the Big Dig.2

                The use of non-specification, and especially leftover,

concrete was economically beneficial to Aggregate. Most obviously,

leftover concrete that was not re-used would have to be dumped or

recycled, an expensive process that Aggregate wished to avoid.              It

was running out of space to store leftover concrete and was unable

to develop efficient alternative uses to deal with the quantities

of concrete that were leftover. Dumping leftover concrete was also

a time consuming process that pulled drivers and trucks away from

their delivery obligations.             For all of these reasons, Aggregate

re-used as much concrete as possible and minimized the amount that

was dumped.




       2
      Loads lacking fly ash were not included when calculating the
loss amount for purposes of sentencing.

                                         -10-
C.   Sentencing

           After this scheme came to light, Prosperi and Stevenson

were charged with: 1) one count of conspiracy to commit mail fraud

and make false statements on a highway project; 2) one count of

conspiracy to defraud the United States by submitting false claims;

3) eighty-three counts of making, and aiding and abetting the

making of, a false statement on a highway project; and 4) fifty

counts of mail fraud, and aiding and abetting mail fraud. McNally,

John Farrar, Marc Blais, and Keith Thomas, all Aggregate employees,

were charged with similar offenses.3      McNally and Thomas pled

guilty.   After a sixteen-day jury trial, Farrar and Blais were

convicted on some counts and acquitted on others.     Prosperi and

Stevenson were convicted on all counts.

           1.   The Loss Amount Finding

           The amount of loss to be used in calculating the GSR was

a hotly contested issue at sentencing.     The government and the

defendants submitted memoranda describing their positions on the

issue of loss, and the court held an evidentiary hearing on the

issue.

           The government argued that pursuant to Application Note

3(F)(v) to § 2B1.1 of the United States Sentencing Guidelines

("USSG"), the amount of loss should be calculated as the total


     3
       As noted, McNally was the quality control manager for the
Ready-Mix Concrete Division. Blais, Farrar, and Thomas were each
dispatch managers or assistant managers in the Division.

                                -11-
amount paid by the government for the concrete that failed to meet

project specifications, with no credit provided for the value of

the goods and services actually provided.                  Thus, the government

took the number of 10/9 loads delivered to the Big Dig between 1999

and 2004, 2,637 -- a number that was identified in Aggregate's

records -- and added to it another 2,700 loads, an estimate of the

number of 10/9 loads delivered prior to 1999 and on nights and

weekends. Finally, the government also included an estimated 1,200

loads of 10/9 concrete sent to other public construction projects

within Massachusetts. In total, these loads included approximately

64,163      yards       of   non-specification     concrete.     The    government

asserted that the average price paid by the government per yard of

concrete was $80.90.            Accordingly, the government argued that the

appropriate         loss      amount    for    Prosperi    and   Stevenson     was

approximately $5.2 million.4

                 In contrast, Prosperi and Stevenson argued that there was

no loss attributable to them, because the Commonwealth got what it

contracted for and expected to receive.                In particular, they noted

that       the    MTA    certified     to    federal   authorities     that   post-



       4
        The government characterized this as a conservative
estimate, noting that it did not take into account concrete
delivered to the Big Dig that did not contain required fly ash or
to which water had been impermissibly added. It also argued that
this figure was low because it did not include an amount for
reasonably foreseeable repairs necessitated by the use of non-
specification concrete, although it did not attempt to estimate
what repairs would be needed.

                                            -12-
construction testing showed that the materials used in the project

conformed with applicable plans and specifications. The MTA did so

after   the    conduct   at   issue    in    this   case   came   to   light.

Additionally, Prosperi and Stevenson pointed to independent testing

commissioned by the government that focused on the areas of the Big

Dig believed to have received non-specification concrete.                These

tests showed that, when completed, those sections of the project

met or exceeded standards for concrete strength and permeability.

Prosperi and Stevenson also noted that, considered as a whole,

little of the total amount of concrete sent to the Big Dig failed

to meet the relevant specifications.

              From their perspective, the proper measure of loss was

the cost of repairs necessary to fix or replace inferior work.

Given their claim that the finished product met safety standards

and required no repairs, they argued that there was no monetary

harm.   They also pointed out that there was no actual double-

billing for concrete, since the government did not pay for concrete

by the load, but instead paid by construction unit (e.g., per foot

of completed tunnel) without regard to the amount of concrete

actually used.     Furthermore, they noted that pecuniary harm is not

an element of the crimes charged and that the government did not

attempt to prove pecuniary harm during trial.

              The district court issued a memorandum explaining its

decision on the issue of loss.              After summarizing the parties'


                                      -13-
positions, it stated, "Needless to say, much of this is not

helpful. In a case like this it is difficult to apply a mechanical

rule of sentencing."    United States v. Prosperi, No. 06-10116, at

5 (D. Mass. May 6, 2010) (Memorandum and Order on Calculation of

Loss for Purposes of Sentencing) ("Loss Order").             The district

court noted that part of the rationale for using loss amount to

determine the GSR was to eliminate disparities between white- and

blue-collar    offenders:   "One   of   the   goals   of   the   Sentencing

Guidelines was to give greater equivalence between penalties for

white collar crimes like fraud and violent crimes like robbery.

One means chosen by the Sentencing Commission to accomplish this

goal was by giving greater weight to the amount of loss involved in

a scheme to defraud."       Id. at 2.     Cognizant of this purpose, it

explained:

            Loss is certainly important, but the crimes at
            issue do not fit the usual white collar crime
            profile. There was no intent on defendants'
            part to enrich themselves personally. Nor is
            there any evidence that defendants intended to
            do harm to the [Big Dig] project or to the
            taxpaying public in any specific sense.

Id. at 5.

            The court adopted the government's loss figure of $5.2

million, stating simply that, "[a]lthough neither the government or

the defendants' methodology can be termed precise, I think on the

whole the government's method of calculating loss is closest to the

mark."   Id.   However, after making this choice, the district court


                                   -14-
put the parties on notice that it would not allow the loss figure

to drive its sentencing decision, stating that "I do not believe

the estimated loss figure -- given the nature of the case -- has

pivotal        significance     in   fashioning        an   appropriate    sentence,

something       the parties      might keep      in mind      in   composing   their

sentencing arguments and recommendations."                   Id.

                The Probation Department shared the court's concern about

the significance of the loss amount.               After the court issued its

Loss        Order,   the   Probation   Department       revised    the   Presentence

Reports for both Prosperi and Stevenson in light of the court's

conclusion.          The final paragraph of the Presentence Reports for

both Prosperi and Stevenson notes that "[t]he Court may wish to

consider whether the loss in this instance is overstated."

                2.   The Sentences

                The district court's determination of the amount of loss

attributable to the defendants was pivotal in the calculation of

the applicable GSR.          See USSG § 2B1.1.         Under the guidelines, both

Prosperi and Stevenson were subject to a base offense level of 7.

Id. § 2B1.1(a)(1).          The loss amount of $5.2 million increased the

offense level by 18.            Id. § 2B1.1(b)(1).          Finally, both Prosperi

and Stevenson received an additional increase of four levels for

being        organizers    or   leaders    in    the    criminal    scheme.5     Id.


        5
       The Presentence Reports for both Prosperi and Stevenson
explained that as general manager and operations manager of
Aggregate's Ready-Mix Concrete Division, respectively, the two were

                                          -15-
§ 3B1.1(a).     Accordingly, both were subject to an adjusted offense

level of 29.      Given the lack of any prior criminal history, the

district court calculated the GSR for both Prosperi and Stevenson

as 87- to 108-months imprisonment.

            At the sentencing hearing, after noting the GSR, the

district court emphasized that it did not believe that the GSR,

driven largely by the loss estimate, accurately reflected the

defendants' culpability: "As far as I am concerned, the presentence

report and the Guidelines calculation, which we all recognize are

advisory, are influenced by the difficulty of assigning an accurate

loss value to the case, which is the critical element around which

the Guidelines are structured." The court observed that it settled

on   a   loss   figure   "[a]s   a   formal   matter,"   and   picked   the

government's formula because "[it] was probably as good as any."

It added that "I would note parenthetically that without the 18-

point escalator, one would be looking at an 8- to 14-month range

with a Zone C alternative sentence available to the Court if the

Guidelines, again, applied in a mandatory fashion."6


involved in making the decision to send 10/9 concrete to the Big
Dig.   The reports also noted that the two directed their co-
conspirators and acted as organizers and leaders of a criminal
activity involving five or more participants. See USSG § 3B1.1(a).
The court applied the four-level increase at sentencing without
further explanation, presumably relying on the reasoning of the
reports.
     6
        A Zone C alternative sentence would be a term of
imprisonment of one-half the minimum of the range, with the
remaining half comprised of community confinement or home

                                     -16-
             Having made these comments, the court asked to hear from

the parties.       The government described a lack of accountability

generally among the companies and individuals who worked on the Big

Dig, as    well    as    an    alleged   lack   of   remorse   on   the    part   of

Prosperi.7        It    also   suggested    that     there   may    be    long-term

maintenance issues with the project because of the defendants'

conduct.     The government attempted to tie the defendants' conduct

to a broader corporate culture of corruption, invoking Bernie

Madoff, the BP oil spill, and the financial crisis.8


detention.     USSG § 5C1.1(d).
     7
         The government stated:

     [After an unrelated accident], in investigating what went
     on, the one theme, the recurring theme, was the lack of
     personal responsibility by anyone who worked on that
     project, the lack of corporate responsibility by any of
     the companies who worked on that project, the lack of
     accountability by the business community for what had
     occurred on that project. Nobody was responsible for
     anything. Everybody blamed everybody else. If it was a
     contractor, they blamed the designer, they blamed the
     suppliers.    The suppliers blamed the contractors.
     Bechtel, who was the construction manager, they blamed
     everybody else.

It added that, "[e]ven in Mr. Prosperi's sentencing memorandum I
sense no admission of wrongdoing. I sense no remorse. . . . At
least in Mr. Stevenson's sentencing memo, I think he essentially
concedes that this was not industry practice, this was Aggregate
Industries' practice."
     8
         Early in its sentencing argument, the government stated:

     [W]e not only saw it in this case, but it's exactly what
     is going on today in front of Congress when they
     investigate the collapse of the banking community on Wall
     Street, when we have a massive oil spill in the Gulf of

                                         -17-
            Prosperi's counsel argued that the loss amount overstated

the defendants' culpability.         He noted the numerous letters from

Prosperi's family, friends, and business associates attesting to

Prosperi's good character and role in the community. Additionally,

he reminded the court that Prosperi's wife suffered from a terminal

cancer and that Prosperi was an important caregiver for her.

            Stevenson's    counsel    reminded      the    court   that   tests

performed   after the     scheme   came     to   light    indicated   that the

finished structures ultimately met project specifications. He also

argued that there was no profit motive animating Stevenson's

conduct.    Finally, he called the court's attention to Stevenson's

positive community activities, and his care for his disabled

daughter and elderly parents. Subsequently, Prosperi and Stevenson

each briefly spoke on their own behalf.            They each apologized for

their actions and asked the court for leniency.




     Mexico. There is clearly a lack of accountability and
     unwillingness of the business community to take
     responsibility for anything that went wrong, and that's
     what I think we've dealt with throughout this case.

Later, in attempting to respond to the supportive letters sent to
the court on the defendants' behalf, the government stated:

     [F]ive years ago if somebody were to talk about Bernie
     Madoff, they would have said he's one of the biggest
     philanthropists in the country.      Today we know he's
     behind the biggest fraud in the history of the United
     States. So, you know, people have two sides to them and
     can engage in criminal activity and also be loving family
     members and productive members of the community.

                                     -18-
            The   district     court    then   explained   its   reasoning   in

arriving at the sentences imposed.             It acknowledged the numerous

letters it had received from the defendants' family, friends, and

community    members,    and    noted    that    it   found   them   "sincere,

supportive, and, I'm sure, an accurate portrayal of the defendants'

lives."    It also observed that if any of the letter writers came to

Prosperi and Stevenson seeking advice in a similar situation, the

two defendants "would have been the first to say, 'This is morally

wrong, you shouldn't do this, this should not be the choice that

you should make.'    Why they made that wrong choice for themselves,

as I say, is the piece of the puzzle that I find hardest to

answer."    The court went on to state:

            On the other hand, it is not clear to me why
            these defendants were necessarily plucked out
            to be the "poster children" -- if I may use
            the phrase -- for a larger corporate culture
            that I agree was morally lazy, and so focused
            on the short term that it became heedless to
            the consequences or impacts of the behavior
            that it encouraged.

            Responding    to    the     government's    invocation    of     the

financial crisis, the BP oil spill, and Bernie Madoff, the district

court explained:

            It is tempting but ultimately, I think, an
            abuse of my power as a sentencing judge to
            hold these defendants responsible for all of
            the excesses of modern corporate ills; nor can
            I prospectively ask these defendants to bear
            the weight of a speculative failure of the
            Artery Project. I heard no evidence that that
            is likely, but, beyond that, I do not think it


                                       -19-
          is an appropriate factor at this point for me
          to take into account at sentencing.

The court added that "I really cannot sentence a culture.           I have

to sentence the defendants as human beings, and the real choice in

this case is what are the punishment alternatives."

          Balancing the 18 U.S.C. § 3553(a) factors, the court

noted that, "There is one benefit, and only one, that I see in this

case to incarceration, and that is the sanction of deterrence that

a sentence [of incarceration] would pose for others."          As for the

issue of incarceration and specific deterrence, the court added

that it saw no risk of recidivism on the part of either Prosperi or

Stevenson.   It went on to note that "[i]ncarceration will incur a

large cost to taxpayers, and an even larger personal cost in Mr.

Prosperi's case to his ill wife and, to some degree, to Mr.

Stevenson's family, as I recognize that they both play important

roles as caregivers and caretakers in their families."

          The district court concluded by noting, "I have given

perhaps more reflection to this than perhaps any but one or two

other sentences I have had to impose, and I have come to the

conclusion that an alternative to incarceration is the appropriate

sentence in this case."    It added that, "I think [the defendants'

conduct] was wrong, and I have made it clear that I think it was

wrong; but I do think my decision is the correct one given all of

the factors that are at play."          Accordingly, despite the GSR,

neither Prosperi   nor    Stevenson   was   sentenced   to   any   term   of

                                 -20-
imprisonment.     Rather, each was sentenced to six months home

monitoring,    three   years   probation,   1,000   hours   of    community

service, and a modest fine.9

          In    its    Statement   of   Reasons   supporting     Prosperi's

sentence,10 the district court explained:

          The advisory guideline range, while accurately
          calculated, is not a fair representation of
          the defendant's culpability.     There is no
          evidence that the defendant intended to enrich
          himself personally or intended to harm the
          [Big Dig] project or taxpaying public in any
          specific sense.    Instead, the defendant was
          part of a corporate culture that did not
          consider moral consequences or public harm.
          The period of home confinement, community
          service, and fine are punitive measures that
          serve as deterrents, promote respect for the
          law, and are just punishment given all of the
          circumstances   present    in  this   case.
          Additionally, the sentence imposed will allow
          the defendant to be available to care for his
          terminally ill wife and accompany her to
          medical appointments. Given all of this, the
          sentence imposed is sufficient, but not
          greater than necessary and complies with
          18:3553(a).

The Statement of Reasons for Stevenson was identical, except it

substituted, for the line regarding Prosperi's terminally ill wife,




     9
       Prosperi received a $15,000 fine and Stevenson a fine of
$5,000. The other defendants, who were sentenced after Prosperi
and Stevenson, also received probationary sentences, although their
sentences are not being appealed.
     10
         The Statement of Reasons is a written statement that the
sentencing judge must provide in each case in which a sentence
outside the guidelines range is imposed. It serves to explain the
facts justifying a sentence outside the advisory guidelines system.

                                   -21-
a statement that "the sentence imposed will allow the defendant to

meet his family obligations."

                                           II.

               We review the reasonableness of a sentence, whether

inside or outside the guidelines range, "under a deferential abuse-

of-discretion standard."           Gall, 552 U.S. at 41.              There are two

parts to this inquiry.           First, we ask whether the district court

committed a procedural error in selecting a sentence.                   Id. at 51.

This may include "failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory, failing

to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the

chosen    sentence."       Id.        If   an     appellant   makes   no   claim   of

procedural error, as is the case here, we limit our review to the

substantive reasonableness of the sentence.                   See United States v.

Martin, 520 F.3d 87, 92 (1st Cir. 2008).                    "When conducting this

review,    .    .   .   [we]   take    into       account   the   totality   of    the

circumstances, including the extent of any variance from the

Guidelines range."        Gall, 552 U.S. at 51.

               Following the Court's decision in Gall, we have noted

that sentencing "necessitates a case-by-case approach, the hallmark

of which is flexibility." Martin, 520 F.3d at 91. Accordingly, "a

sentencing court should not consider itself constrained by the

guidelines to the extent that there are sound, case-specific


                                           -22-
reasons for deviating from them." Id.         However, if a court chooses

to impose a sentence outside of the guidelines range, "[t]he

court's reasons for deviation should typically be rooted either in

the nature and circumstances of the offense or the characteristics

of the offender; must add up to a plausible rationale; and must

justify a variance of the magnitude in question."        Id.   From this,

it follows that "a major departure should be supported by a more

significant justification than a minor one." Gall, 552 U.S. at 50.

           Gall emphasizes the "very broad" discretion afforded

sentencing courts and the deference accorded their sentencing

decisions. United States v. Innarelli, 524 F.3d 286, 292 (1st Cir.

2008); see also United States v. Taylor, 532 F.3d 68, 70 (1st Cir.

2008)   ("[O]ur   review   of   substantive   reasonableness   is   highly

deferential."); Martin, 520 F.3d at 98 ("Under Booker[, 543 U.S.

220 (2005),] and Gall, there is a heavy emphasis on a sentencing

court's informed discretion.").           This deference is founded on

several "institutional advantages" possessed by the district court,

including "a superior coign of vantage, greater familiarity with

the individual case, the opportunity to see and hear the principals

and the testimony at first hand, and the cumulative experience

garnered through the sheer number of district court sentencing

proceedings that take place day by day."         Id. at 92 (citing Gall,

552 U.S. at 597-98).       We have explained that "once the GSR is

properly calculated, 'sentencing becomes a judgment call' for the


                                   -23-
court, and the court may construct a sentence varying from the GSR

'based on a complex of factors whose interplay and precise weight

cannot even be precisely described.'"                Innarelli, 524 F.3d at 292

(quoting Martin, 520 F.3d at 92).

            Thus,    "[t]he     fact     that    the          appellate          court   might

reasonably have concluded that a different sentence was appropriate

is insufficient to justify reversal of the district court," Gall,

552 U.S. at 51, and a district court's "choice of emphasis" when

considering    relevant     factors      is    not       a    ground    for       vacating   a

sentence,     United States v. Zapata, 589 F.3d 475, 488 (1st Cir.

2009).   Ultimately, "[t]here is no single reasonable sentence in

any   particular     case     but,     rather,       a       universe       of    reasonable

outcomes," United States v. Walker, 665 F.3d 212, 234 (1st Cir.

2011), and "[w]e generally respect the district court's sentence as

long as the court has provided a plausible explanation, and the

overall result is defensible," Innarelli, 524 F.3d at 292.

                                        III.

            Guided    by    this     legal       framework,            we     address      the

government's challenges to the substantive reasonableness of the

district court's sentences. The heart of the government's argument

is its repeated observation that the probationary sentences imposed

are an eighty-seven-month (100%) variance from the bottom of the

applicable guidelines range, and the related assertion that the

court's rationale for such a dramatic variance is not plausible.


                                        -24-
As noted, the court observed at sentencing that "without the 18-

point escalator [due to the loss estimate], one would be looking at

an    8-   to    14-month   range    with   a    Zone    C   alternative        sentence

available to the Court if the Guidelines, again, applied in a

mandatory fashion." The government vigorously disputes the court's

view that the loss amount here was an unfair proxy for culpability.

Accordingly, our evaluation of the government's challenge to the

sentences turns in large measure on whether we find that the court

has offered a plausible explanation for its treatment of the loss

amount.

A.    The Loss Amount

                The court regarded the loss determination set forth in

its    Loss     Order,    although    required     by    the   guidelines,        as    an

uncertain       figure.      The    government     paid      for    the   Big    Dig    by

construction unit (e.g., per foot of completed tunnel). It did not

directly pay for concrete by the load.                  Thus, any estimate of the

price paid for the 10/9 concrete provided by Aggregate would be

imprecise.       Additionally, the MTA certified to federal authorities

that   the      materials   used     in   the    construction       of    the   Big    Dig

conformed with applicable plans and specifications, even after the

conduct at issue in this case came to light.                       This certification

calls into question whether there was any actual monetary loss to

the government. Most importantly, independent testing commissioned

by the government, and focusing on the areas of the project


                                          -25-
believed to have received non-specification concrete, showed that

those sections     of    the    project   met      or exceeded     standards for

concrete strength and permeability. None of the testing of samples

taken from the Big Dig indicated a need for repairs or specific

concerns regarding durability.

           Presumably, the court relied on Application Note 3(F)(v)

to USSG § 2B1.1 in determining the loss amount.               That note provides

that, "[i]n a case involving a scheme in which . . . goods for

which regulatory approval by a government agency was required but

not obtained, or was obtained by fraud, loss shall include the

amount paid for the property, services or goods . . . , with no

credit provided for the value of those items or services."                    USSG

§ 2B1.1 cmt. n.3(F)(v).            Strict application of this advisory

application   note      in   fashioning      a    sentence,      without   further

analysis, would treat this case identically to one in which the

defendants had provided no usable concrete in the 10/9 loads.

While this is the approach that the application note recommends,

the court was reluctant to use it in this case, given the MTA's

certification that the finished product met project specifications.

           It is true that the evidence on the durability issue was

mixed.   The same expert firm that performed the referenced tests

also   concluded     that      Aggregate's       practice   of    using    leftover

concrete, and providing concrete without fly ash, could potentially

have serious durability consequences.              At the evidentiary hearing


                                      -26-
on loss, the government's expert witness stated that, despite the

fact that samples taken from the Big Dig passed relevant tests, "I

think I feel pretty confident there will be some long-term issues."

In particular, he stated that "I do believe there will be long-term

premature deterioration," but noted that any such deterioration

would be the product of a combination of factors, with the use of

non-specification         concrete    being     only   one.      The   expert      also

acknowledged that the permeability tests that he relied upon to

reach this conclusion were not tests of samples that were taken

from the Big Dig itself, but instead were efforts to create

concrete similar to those samples by replicating the conditions

under   which     10/9    concrete     was    used.      In   the    face    of    this

contradictory evidence, the district court concluded that any

failure    of   the      project   was   speculative       and   unlikely.          The

government has not challenged this factual finding.

            The    government        presented        evidence      that    Aggregate

management and staff received bonuses based on the company's

profitability.        The fraudulent scheme served to increase the

company's profitability, and hence it may have had an effect on

year-end    bonuses.         However,     the    evidence     presented       by    the

government indicated that bonuses were introduced by the company in

1999, at least three years after Aggregate began to send 10/9

concrete to the Big Dig.             Accordingly, the prospect of a larger

year-end bonus could not have been the motivation to enter into


                                         -27-
this   scheme      or   to    continue     it    for   its   first    three   years.

Furthermore, there was no evidence that Prosperi and Stevenson

received any bonuses even after the policy was in place, much less

larger bonuses due to the fraudulent scheme.

             On the basis of this record, the court found that the

defendants did not seek to enrich themselves personally and did not

personally benefit from the scheme.                    The court added that these

findings distinguished them from typical white-collar defendants.

Again, the government has not challenged the court's factual

findings on this issue.

             In summary, several factors played into the court's

decision     to    treat      the   loss   amount       as   an   unfair   proxy   for

culpability.         The loss amount finding itself was necessarily

imprecise.        In light of the MTA's certification that the finished

product met project specifications, there was value in the concrete

provided.    Testing of samples taken from the Big Dig showed no need

for repairs, and any link between the conduct of the defendants and

a   future   failure         of   the   Artery    Project     was    speculative   and

unlikely.         Finally, Prosperi and Stevenson did not personally

benefit from the scheme.            Given these findings and considerations,

the district court offered a plausible explanation of its refusal

to allow the loss estimate to control its sentencing determination.




                                           -28-
B.   Corporate Culture at Aggregate

           In its Loss Order, the court noted, "What appears to have

been at play was a corporate culture in which pressure, much of it

self-generated, was exerted on defendants to perform service for

the short-term benefit of the organization without heed to the

moral consequences or public harm."      Loss Order at 5.     Similarly,

at sentencing, the district court stated, "[I]t is not clear to me

why these defendants were necessarily plucked out to be the 'poster

children' -- if I may use the phrase -- for a larger corporate

culture that I agree was morally lazy, and so focused on the short

term that it became heedless to the consequences or impacts of the

behavior that it encouraged." Finally, in the Statement of Reasons

for both Prosperi and Stevenson, the court made a third reference

to corporate culture, noting, "There is no evidence that the

defendant intended to enrich himself personally or intended to harm

the CA/T [Central Artery/Tunnel] project or taxpaying public in any

specific sense.   Instead, the defendant was part of a corporate

culture that did not consider moral consequences or public harm."

The government makes much of those "corporate culture" statements,

arguing that "[b]y ascribing blame for the offenses of conviction

to the purported evils of the 'corporate culture' rather than to

the individual defendants themselves, the district court both

absolved   Prosperi   and   Stevenson   of   responsibility   for   their

criminal actions and sentenced them based on the 'straw man' of


                                 -29-
corporate     culture      rather       than       on     Prosperi       and   Stevenson

themselves."

            We    read    the    court's       "corporate        culture"      statements

differently. The reference to Aggregate's corporate culture in the

Statement of Reasons comes immediately after the district court

distinguished      Prosperi       and    Stevenson        from    other    white-collar

criminals by noting that they were not motivated by personal

enrichment.       Thus, the reference to corporate culture was an

attempt to identify an alternative motive -- a single-minded

interest in the success of their company, and not to absolve the

defendants of all responsibility. Even in referring to Aggregate's

corporate culture, the court did not fail to take note of Prosperi

and Stevenson's role in creating that culture.                     In its Loss Order,

the court     noted      that    the    pressure        on Prosperi       and Stevenson

produced    by    Aggregate's      corporate        culture       was    largely   self-

generated.        Thus,    the    court      acknowledged         that    Prosperi      and

Stevenson each bore some responsibility for creating the corporate

culture that it condemned.

            Also, Prosperi and Stevenson did receive more substantial

sentences than their co-defendants.                      As noted, they were each

sentenced    to    six    months       of   home    detention,       three      years   of

probation, and 1,000 hours of community service.                     In contrast, the

other defendants, who held lesser positions within Aggregate's

Ready-Mix Concrete Division, received lesser sentences.                            Farrar


                                            -30-
received three months home detention, three years probation, and

750 hours community service; Blais received three months home

detention, two years of probation, and 250 hours of community

service;   McNally   received   no    home    detention,       eighteen   months

probation, and 200 hours of community service; and Thomas received

no home detention, one year probation, and 125 hours of community

service.    Accordingly, the sentences imposed on Prosperi and

Stevenson do reflect their higher positions within the corporation

and their greater culpability.

C.   Corporate Culture Generally

           The   government     argues       that      the     district    court

misapprehended   the   government's         position    when    it   considered

Prosperi and Stevenson to be "singled out" for prosecution.                   In

support of this argument, the government cites the district court's

statement at sentencing that "[i]t is tempting but ultimately, I

think, an abuse of my power as a sentencing judge to hold these

defendants responsible for all of the excesses of modern corporate

ills."   However, this statement is a response to the government's

sentencing argument, in which it stated:

           [W]e not only saw it in this case, but it's
           exactly what is going on today in front of
           Congress when they investigate the collapse of
           the banking community on Wall Street, when we
           have a massive oil spill in the Gulf of
           Mexico.     There is clearly a lack of
           accountability   and   unwillingness  of   the
           business community to take responsibility for
           anything that went wrong, and that's what I
           think we've dealt with throughout this case.

                                     -31-
Later in its argument, discussing the letters submitted on the

defendants' behalf, the government added:

           [F]ive years ago if somebody were to talk
           about Bernie Madoff, they would have said he's
           one of the biggest philanthropists in the
           country.    Today we know he's behind the
           biggest fraud in the history of the United
           States. So, you know, people have two sides
           to them and can engage in criminal activity
           and also be loving family members and
           productive members of the community.

           Given these arguments, the court understandably felt that

the government was asking it to consider the "excesses of modern

corporate ills" in sentencing the defendants. The court refused to

do so, focusing instead on the actions of the defendants and their

personal circumstances.

D.   Intent to Harm

           In its Statement of Reasons, the court stated that

"[t]here is no evidence that the defendant[s] . . . intended to

harm the CA/T project or taxpaying public in any specific sense."

The government argues that the district court's reliance on this

finding does not justify the sentences imposed. In particular, the

government notes that they knowingly committed fraud, and many

fraud defendants do not specifically intend to harm their victims.

It points out that a person need not intend to harm a victim to be

held responsible for the foreseeable consequences of his actions.

           That is a fair summary of an important legal proposition.

For its part, however, the court apparently thought it was more


                                -32-
relevant   to   the   sentencing   decision   in   this   case   that   the

government had failed to establish that any particular harm had

resulted, or would result, from the defendants' actions.11         In its

brief, the government asserts, without any citation to the record,

that the court accepted the fact that the defendants' fraud "will

adversely affect large portions of the CA/T in the future."              In

fact, the court found that the evidence presented did not indicate

a likelihood of a future adverse effect.       The court characterized

any future harm as "speculative" and stated that "I heard no

evidence that that is likely."

           Moreover, in distinguishing the defendants from other

white-collar fraud defendants, the court emphasized the absence of

an intent to harm the Big Dig, or any direct intent on the part of

the defendants to enrich themselves.          This distinction remains

relevant in considering the cases cited by the government on

appeal, in which probationary sentences for fraud defendants have

been vacated for substantive unreasonableness. In United States v.

Livesay, 587 F.3d 1274 (11th Cir. 2009), which involved the billion

dollar HealthSouth fraud, the defendant was part of "an illegal



     11
        At the end of its initial brief, the government identifies
a less tangible harm caused by the defendants' conduct, noting that
the fraud undermined public confidence in the safety of the Big
Dig, as well as confidence in the ability of the government to
conduct its business. Although the government does not develop
this argument, it is a fair point that adds to our uneasiness with
the district court's decision. It should have been addressed by
the court in its explanation of the sentences.

                                   -33-
scheme    to   artificially        inflate     HealthSouth's     earnings   and   to

falsely report HealthSouth's financial condition."                  Id. at 1276.

In particular, the defendant "instructed HealthSouth's accounting

staff to manipulate various accounts" to produce a pre-determined

earnings per share, and also participated in preparing SEC filings

that he knew to be materially misstated.                   Id.   In vacating the

probationary sentence originally imposed, the Eleventh Circuit

emphasized     that   the    fraud      left    "victims   too   numerous    to   be

counted," id. at 1278, including innocent shareholders who were

"bilk[ed]"      out   of    over    a   billion       dollars,   id.   at   1279.

Furthermore, the court noted that the defendant substantially

enriched himself by his conduct.12              Id.

               In another case relied upon heavily by the government,

United States v. Cutler, 520 F.3d 136 (2d Cir. 2008), the Second

Circuit reversed as substantively unreasonable the sentences of two

defendants convicted of bank and tax fraud. One defendant had been

sentenced to one year and one day of incarceration, and the other

to three years of probation.              In rejecting these sentences, the

Second Circuit relied on several of the same arguments that the

government makes here, finding that the district court erred in

departing based on family circumstances and in deciding that the

loss overstated the defendant's culpability. Id. at 163. However,


     12
        Another case cited by the government, United States v.
McVay, 447 F.3d 1348 (11th Cir. 2006), also concerns the
HealthSouth fraud and provides similar facts and reasoning.

                                         -34-
in a case decided nine months after Cutler, the Second Circuit,

sitting en banc and citing Cutler, stated that, "[t]o the extent

that our prior cases may be read to imply a more searching form of

substantive review, we today depart from that understanding."

United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008).        The

Cutler decision is not helpful to the government's position.

E.   Deterrence

           The government argues that the sentences imposed are

contrary to Congress's stated policy of increasing sentences for

white-collar offenders to provide an adequate general deterrent.

As the government observes, Congress has noted that deterrence is

"particularly important in the area of white collar crime."        S.

Rep. No. 98-225, at 76 (1983), reprinted in 1984 U.S.C.C.A.N. 3182,

3259.   We have previously emphasized the importance of general

deterrence in white-collar crime. See United States v. Mueffelman,

470 F.3d 33, 40 (1st Cir. 2006) (stating importance of "the

deterrence of white-collar crime (of central concern to Congress),

the minimization of discrepancies between white- and blue-collar

offenses, and limits on the ability of those with money or earning

potential to buy their way out of jail").

           By statute, the USSG must be "entirely neutral as to the

. . . socioeconomic status of offenders."   28 U.S.C. § 994(d).    It

is impermissible for a court to impose a lighter sentence on white-

collar defendants than on blue-collar defendants because it reasons


                               -35-
that white-collar offenders suffer greater reputational harm or

have more to lose by conviction.           See USSG § 5H1.2 (stating that

"[e]ducation and vocational skills are not ordinarily relevant in

determining   whether   a    departure     is   warranted");   id.   §   5H1.5

("Employment record is not ordinarily relevant in determining

whether a departure is warranted."); id. § 5H1.10 (stating that

socioeconomic status is not relevant in determining a sentence).

          We see no indication in the record that the court failed

to observe these directives.         In explaining its view that the

sentences imposed provided an adequate deterrent, the court noted:

          I think it is very difficult at times, for
          those of us who are judges or prosecutors or
          lawyers, to put ourselves in the shoes of a
          person with no prior experience with the
          criminal justice system who finds himself or
          herself accused of a crime. I do not think,
          sometimes, we fully recognize the anguish and
          the penalty and the burden that persons face
          when called to account, as these men are, for
          the wrong that they committed.

This reasoning applies equally well to defendants convicted of

white-collar and blue-collar crimes.             Also, we understand the

court's comments on the burdens of the criminal process to be a

comment on the specific deterrence of these defendants from any

future criminal conduct.

          Additionally,      the   court    understood   and   credited    the

argument that incarceration increases the deterrent effect of a

sentence on others.         It weighed this benefit of incarceration

against the costs of incarceration:

                                    -36-
             There is one benefit, and only one, that I see
             in this case to incarceration, and that is the
             sanction of deterrence that an incarcerated
             [sic] sentence would pose for others. Beyond
             that, society's interest in incarceration as
             opposed to atonement does not weigh heavily.
             There is no risk of recidivism on the part of
             either of these defendants.      Incarceration
             will incur a large cost to taxpayers, and an
             even larger personal cost in Mr. Prosperi's
             case to his ill wife and, to some degree, to
             Mr. Stevenson's family, as I recognize that
             they both play important roles as caregivers
             and caretakers in their families.

With this explanation, the district court fulfilled its obligation

to consider the importance of general deterrence in fashioning its

sentences.      It decided for the reasons given that the other

interests at stake made a non-incarcerative sentence appropriate in

this case.      It rejected the view that the interest in general

deterrence could only be served by incarceration.

F.   Personal Circumstances

             Finally,   the     government   argues   that     the   personal

circumstances of Prosperi and Stevenson do not distinguish them

from other similarly situated defendants and do not justify the

downward variance in this case.          Under the guidelines, departures

from   the   GSR   based   on   family   circumstances   are    "ordinarily"

inappropriate save under stringent conditions.               USSG § 5H1.6.

However, post-Booker, a judge may vary from the GSR, disagreeing

with details or even major premises, see Kimbrough v. United

States, 552 U.S. 85, 101 (2007) ("[A]s a general matter, courts may

vary from Guidelines ranges based solely on policy considerations,

                                     -37-
including disagreements with the Guidelines."), but the variance

must be reasonable and, in almost all cases where a defendant has

a family, some hardship and disadvantage to them will result

wherever incarceration is part of the sentence.

            Here, whether or not squarely within the exception set

forth in the guidelines, the circumstances of Prosperi's family are

atypical and powerful, both in justifying a variance and in the

home confinement actually chosen.      At the time of sentencing,

Prosperi's wife was battling terminal cancer.       She submitted a

letter to the district court stating that, "I depend on my husband

for almost everything.     He is my caregiver, my love and he is

irreplaceable.    I need him by my side."    Similarly, her sister

submitted a letter stating that, "I fear that without [Prosperi] as

her caregiver, her optimism and hope will be diminished and will

have a devastating impact in her ongoing battle."

            Most significantly, the doctor treating Prosperi's wife

submitted a letter to the court stating that her survival was "due,

in no small part to the . . . remarkable care and dedication of her

husband" and that "[s]he certainly would not be alive today without

his attentiveness and his capacity to recognize when she is in

trouble."   The doctor added that "Mr. Prosperi's support has been

a critical factor in keeping [his wife] alive" and "I am quite

concerned about [her] ability to function without her husband."




                                -38-
          While Stevenson presented evidence that he too served as

a caretaker for members of his family, his circumstances are not as

compelling. Stevenson played an integral role in the on-going care

for his adopted, badly disabled daughter, and said that he was the

primary caregiver for his elderly parents.       Also, there were

numerous letters detailing Stevenson's charitable work and support

for friends and neighbors.    Seemingly, his disabled daughter is

now adult and living in a group home, but there was evidence that

the family hoped to be able to bring their daughter, who will need

care indefinitely, to a facility near to the family home, allowing

Stevenson to play a role in providing care.

           Furthermore, after concluding that Prosperi would not

receive a sentence of incarceration, the court was entitled to take

this fact into consideration in fashioning Stevenson's sentence.

See United States v. Tejeda, 481 F.3d 44, 60 (1st Cir. 2007) ("[A]

district court may consider disparities among co-defendants in

determining a sentence."). Stevenson was a subordinate of Prosperi

and seemingly participated in the fraudulent actions under the

superintendence of his superior -- not an excuse but a factor that

a judge might reasonably think argues against a higher sentence,

especially when for both men the family needs are poignant beyond

the ordinary.

          We have been clear that, post-Booker, "[a] district court

. . . may take idiosyncratic family circumstances into account, at


                               -39-
least to some extent, in fashioning a variant sentence."                     Martin,

520   F.3d    at    93.      Although    policy       statements   issued    by    the

Sentencing Commission are relevant in determining the type and

degree of idiosyncracy necessary to support a given variance, they

are   not    decisive.        Id.   Here,       for    the   reasons   stated,     the

particular circumstances of both Prosperi and Stevenson were a

permissible factor for the court to consider in imposing its

variant sentences.

                                         IV.

             As we said at the outset of this opinion, the degree to

which the sentences challenged in this appeal vary from the GSR has

given us pause.           We are mindful of how rare it is to encounter a

variance of this magnitude. See United States v. Negroni, 638 F.3d

434, 446 (3d Cir. 2011) (noting, in a case involving a 70- to 87-

month GSR and a probationary sentence, that "[t]he parties have not

identified any case, and we have not found one, in which an

appellate      court       upheld   a    probationary         sentence      that    so

significantly varied from the Guidelines range").                  One can easily

argue   that       home    confinement   remains       an    unreasonably    shallow

sentence for a serious and deliberate crime which had the potential

to cause large monetary loss and even physical harm to others.

Many judges would have imposed prison sentences in this case even

though no actual loss or harm was established, save possibly to

public confidence.


                                         -40-
            That said, "while the extent of the difference between a

particular sentence and the recommended Guidelines range is surely

relevant, courts of appeals must review all sentences -- whether

inside, just outside, or significantly outside the Guidelines range

-- under a deferential abuse-of-discretion standard."          Gall, 552

U.S. at 41.    As we have previously observed, "Gall teaches that it

is error to allow the dramatic nature of variance to unduly

influence our review for substantive reasonableness."               United

States v. Thurston, 544 F.3d 22, 25 (1st Cir. 2008).               We have

acknowledged that even when we believe that a § 3553(a) goal is not

met   by   a   sentence,   we   must   consider   the   totality   of   the

circumstances, and in particular whether the sentence sacrifices

that goal to satisfy other legitimate competing interests of the

sentencing regime.     Id. (finding three-month sentence reasonable

despite 63- to 78-month GSR).

            In this case, the district court carefully explained its

sentencing decisions.      Most significantly, the court explained why

the estimated loss amount was an unfair proxy for culpability, and

why it should not drive the sentencing process.          Importantly, it

also found that there was insufficient evidence to conclude that

the defendants' conduct compromised the structural integrity of the

Big Dig, or that they sought to enrich themselves.          Coupled with

the individual circumstances of the defendants, these findings




                                   -41-
provided a "plausible explanation [for the sentences], and the

overall result is defensible."    Innarelli, 524 F.3d at 292.

          For the foregoing reasons, the judgment of the district

court is affirmed.

          So ordered.




                                 -42-
