
USCA1 Opinion

	




          February 2, 1993                            UNITED STATES COURT OF APPEALS                                For The First Circuit                              _________________________          No. 92-1491                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                ABEL A. MARIANO, JR.,                                Defendant, Appellant.                              _________________________          No. 92-1630                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  BARRY BUTTERWORTH,                                Defendant, Appellant.                              _________________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                              _________________________               Richard  J. Shea, with whom Edward  C. Roy was on brief, for               ________________            ______________          appellant Abel A. Mariano, Jr.               Richard A. Gonnella for appellant Barry Butterworth.               ___________________               Edwin J.  Gale, Assistant United States  Attorney, with whom               ______________          Lincoln  C.  Almond,  United  States Attorney,  and  Margaret  E.          ___________________                                  ____________          Curran,  Assistant United  States  Attorney, were  on brief,  for          ______          appellee.                              _________________________                                   February 2, 1993                              _________________________                    SELYA,  Circuit  Judge.    These  consolidated  appeals                    SELYA,  Circuit  Judge.                            ______________          challenge  determinations made  by the  district court  under the          federal sentencing  guidelines.  Concluding,  as we do,  that the          court misconstrued  its authority to depart  from a predetermined          sentencing  range in  consequence  of a  defendant's  substantial          assistance,  U.S.S.G.      5K1.1  (Nov.  1991),   we  remand  for          resentencing.          I.  BACKGROUND          I.  BACKGROUND                    The instant appeals find  their genesis in the polluted          political purlieus of Pawtucket, Rhode Island.  See, e.g., United                                                          ___  ____  ______          States  v.  Sarault,  975  F.2d 17  (1st  Cir.  1992)  (affirming          ______      _______          racketeering sentence  with respect  to Pawtucket's mayor).   The          appellants, Abel  A. Mariano, Jr. and  Barry Butterworth, secured          lucrative municipal  contracts and,  in the course  of performing          the jobs,  lubricated the  wheels of  city  government by  paying          under-the-table cash stipends  to insistent municipal  officials.          Mariano  made periodic  payments  (perhaps totalling  as much  as          $50,000) to forestall the  reassignment of sewer-line repair work          to  another contractor.  Butterworth decided to play ball as part          of  his effort to retain generous contracts for the renovation of          McCoy Stadium.   In all, Butterworth made a series of payments to          the ringleaders in an aggregate amount exceeding $100,000.                    Appellants' payments took place over a substantial span          of time.  It  was only after the  authorities started to  uncover          pervasive   corruption   in  the   Sarault   administration  that          appellants  began cooperating  with the  U.S.  Attorney.   In the                                          2          aftermath of this cooperative effort, the government, rather than          seeking indictments,  prepared informations charging the  two men          with violating  18 U.S.C.    666(a)(2) (1988).1   The  defendants          pled  guilty pursuant  to plea  agreements providing  in relevant          part  that the government would pursue a reduction in the offense          level  based on  the  defendants' assistance  to law  enforcement          agencies.                      Mariano  and  Butterworth  were  charged  and sentenced          separately.   In  each  instance, the  prosecution described  the          defendant's  cooperation  and  argued  for a  six-level  downward          departure  pursuant to  U.S.S.G.    5K1.1.    The district  court          refused to depart and sentenced each defendant to  a twenty-seven          month  prison term   an incarcerative sentence  at the top end of          the guideline sentencing range (GSR).   The government moved  for          reconsideration.   In explaining  his refusal to  reconsider, the          district judge, referring  to and quoting  from United States  v.                                                          _____________          Aguilar-Pena,  887 F.2d 347 (1st  Cir. 1989), stated  that he did          ____________          not have discretion to depart.                    In these appeals,2 appellants  claim in unison that the                                        ____________________               1The  statute of conviction criminalizes "corruptly giv[ing]          . . .  anything of value to any person,  with intent to influence          or reward an agent of . . . local . . . government, or any agency          thereof, in connection with  any business, transaction, or series          of transactions . . . involving  [$5000 or more]," so long as the          governmental  unit  in  question  receives   substantial  federal          subsidies.  18 U.S.C.   666(a)(2).               2Although the plea agreements  contain provisions by  virtue          of which the defendants ostensibly waived their rights of appeal,          the  government has conceded that, in  the circumstances of these          cases,  the waiver  provisions are  impuissant.   We  accept this          concession  uncritically.  Hence, we  take no view  of either the                                          3          district court erred in establishing the base offense level (and,          hence,  in fixing  the GSR),  that the  court misapprehended  the          legal standard governing departures under section 5K1.1, and that          their sentences  were "plainly unreasonable" in  derogation of 18          U.S.C.   3742(a)(4) (1988).   In addition, Mariano contends  that          the   district   court    labored   under   fundamental   factual          misconceptions and  violated the  Due Process Clause  by focusing          exclusively  on  deterrence  concerns  to  the  detriment  of  an          individualized sentence.  Not to be outdone, Butterworth contends          that  the government  breached the plea  agreement by  failing to          argue enthusiastically enough in support of a downward departure.                    We concentrate initially  on appellants' flagship claim             the   assertion  that  the  court   below  misapprehended  the          controlling legal  standard, thus mismeasuring the  limits of the          discretion entrusted to  it under  section 5K1.1.   We take  this          tack because, if this  claim pans out, most of  appellants' other          asseverations need not be considered.          II.  THE COURT'S AUTHORITY TO DEPART          II.  THE COURT'S AUTHORITY TO DEPART                    We  begin our  discussion of  the court's  authority to          depart  by pondering  a jurisdictional  quandary.   That quandary          resolved, we then address the merits of appellants' claim.                             A.  Appellate Jurisdiction.                             A.  Appellate Jurisdiction.                                 ______________________                    Ordinarily,  an appeal  will  not lie  from a  district          court's refusal  to depart from a  properly calculated sentencing                                        ____________________          enforceability  vel non of  such waivers or  the safeguards which                          ___ ___          must be employed in respect thereto.                                          4          range.  See United  States v. Tardiff,  969 F.2d 1283, 1290  (1st                  ___ ______________    _______          Cir. 1992); United States  v. Romolo, 937 F.2d  20, 22 (1st  Cir.                      _____________     ______          1991) (collecting cases).   However,  appellate jurisdiction  may          attach  when it appears that  the failure to  depart stemmed from          the  sentencing court's  mistaken impression  that it  lacked the          legal  authority  to  depart  or,  relatedly,  from  the  court's          misapprehension  of the  rules governing  departure.   See United                                                                 ___ ______          States v. Amparo, 961 F.2d 288, 292 (1st Cir.), cert. denied, 113          ______    ______                                _____ ______          S. Ct. 224  (1992); United States  v. Lauzon, 938  F.2d 326,  330                              _____________     ______          (1st Cir.), cert. denied, 112 S. Ct. 450 (1991); Romolo, 937 F.2d                      _____ ______                         ______          at  22.   Although this  paradigm is  dictated by  the Sentencing          Reform Act, see Romolo,  937 F.2d at 23 (discussing  operation of                      ___ ______          18  U.S.C.     3742(a)), it  also  works  well  from a  practical          standpoint:   in respect  to declinations to  depart, the limited          appellate review that is available serves to correct errors which          are   essentially  "legal"   in  nature,   but  does   not  brook          interference with a  sentencing court's  exercise of  factfinding          functions or discretion.  See  Amparo, 961 F.2d at 292;  see also                                    ___  ______                    ___ ____          Romolo, 937 F.2d at 23.          ______                    These  appeals fit  snugly within  the contours  of the          exception  permitting   appellate  review.     The  gravamen   of          appellants'  complaint   is  their  colorable  claim3   that  the                                        ____________________               3In what it terms "the rarest of all cases," the government,          which has  a duty to see  that justice is done,  Berger v. United                                                           ______    ______          States,  295 U.S.  78,  88 (1935),  argues  that the  defendants'          ______          assignment of legal error is  on the mark.  While such  unanimity          of  purpose might raise jurisdictional concerns  in a civil case,          see  Muskrat  v.   United  States,  219  U.S.  346,   361  (1911)          ___  _______       ______________          (explaining adversity requirement); see  also Moore v. Charlotte-                                              ___  ____ _____    __________                                          5          district court  confused the legal standard  governing departures          under  U.S.S.G.     5K1.1   with  the  legal  standard  governing          departures  under  a  markedly  different guideline,  U.S.S.G.             5K2.0.   This claim  presents a  question  of law,  not of  fact,          comfortably  within our  assigned purview.   We  hold, therefore,          that we have jurisdiction over these appeals.                  B.  The Distinction Between Departure Modalities.                  B.  The Distinction Between Departure Modalities.                      ____________________________________________                    We turn next  to the merits of the claim.   Because the          assignment of error involves the parameters of a district judge's          departure authority,  we afford plenary review.   See Lauzon, 938                                                            ___ ______          F.2d at 330; cf. United States v. Diaz-Villafane, 874 F.2d 43, 49                       ___ _____________    ______________          (1st Cir.) (holding  that de  novo review is  warranted when  the                                    __  ____          court  of appeals  is called  upon to  determine "whether  or not          circumstances are of a  kind or degree that may  appropriately be          relied  upon to  justify departure"  under section  5K2.0), cert.                                                                      _____          denied, 493 U.S. 862 (1989).          ______                    The district judge explicitly interpreted  our decision          in United States v.  Aguilar-Pena, 887 F.2d 347 (1st  Cir. 1989),             _____________     ____________          as  restricting his  ability to depart  downward in  these cases.          Aguilar-Pena,  however, involved  a district court's  decision to          ____________                                        ____________________          Mecklenburg Bd. of  Educ., 402  U.S. 47, 48  (1971) (per  curiam)          _________________________          (finding  no case  or  controversy where  "both litigants  desire          precisely the  same result"), criminal  cases are a  breed apart.          When  the government  confesses error  in a  criminal proceeding,          appellate   courts  routinely  continue  to  exercise  previously          acquired jurisdiction.  See, e.g., Mariscal v. United States, 449                                  ___  ____  ________    _____________          U.S.  405 (1981) (per curiam);  Young v. United  States, 315 U.S.                                          _____    ______________          257, 258-59 (1942); see also United States v. Udo, 963 F.2d 1318,                              ___ ____ _____________    ___          1319 (9th Cir. 1992) (reviewing a failure to depart pursuant to            5K1.1  in  circumstances analogous  to  those  presented in  this          case).                                          6          depart under section  5K2.0.4  See id. at  349-53.  Under section                                         ___ ___          5K2.0, a district court  is empowered to depart  from the GSR  if          there  "exists an  aggravating  or mitigating  circumstance of  a          kind,  or to a degree, not adequately taken into consideration by          the Sentencing Commission."  U.S.S.G.   5K2.0  (quoting 18 U.S.C.             3553(b)).  Noting that "the birth of the Sentencing Commission          was  to  some extent  reflective of  Congress's ardent  desire to          dispense   with  inequalities   based  on   localized  sentencing          responses,"  Aguilar-Pena, 887  F.2d  at 352,  we  held that  the                       ____________          district  court's authority  to  depart under  section 5K2.0  was          restricted  to  those few  instances  where  there is  "something          'special' about  a given offender,  or the  accouterments of  the          crime committed,  which distinguishes the case  from the mine-run          for  that offense."   Id. at 350.   In  other words, Aguilar-Pena                                ___                            ____________          reflected this court's staunch belief that section 5K2.0 operates          as  a safety  valve  to  be employed  at  the  discretion of  the          district judge on those infrequent occasions when some important,          atypical  factor,   not   duly  considered   by  the   Sentencing          Commission, removes  a particular case from "the  heartland for a          given offense."  Id. at 351.                           ___                    U.S.S.G.     5K1.1  is  a different  provision  with  a          different  raison d'etre.    Congress  specifically directed  the                     ______ ______          Sentencing Commission to                                        ____________________               4Aguilar-Pena flowed  naturally from,  and relied upon,  our                ____________          opinion in United States v. Diaz-Villafane.   See, e.g., Aguilar-                     _____________    ______________    ___  ____  ________          Pena, 887 F.2d at 349-50 (citing and quoting  Diaz-Villafane, 874          ____                                          ______________          F.2d  at 49-52).   Like  Aguilar-Pena, Diaz-Villafane  involved a                                   ____________  ______________          departure under U.S.S.G.   5K2.0.                                          7                    assure  that  the   guidelines  reflect   the                    general appropriateness of  imposing a  lower                    sentence than would otherwise  be imposed . .                    .   to  take   into  account   a  defendant's                    substantial  assistance in  the investigation                    or  prosecution  of  another  person  who has                    committed an offense.          28  U.S.C.    994(n) (1988).   Section  5K1.1 sprouted  from this          statutory seed.  It provides, inter alia, that:                                        _____ ____                    Upon  motion of  the government  stating that                    the   defendant   has  provided   substantial                    assistance    in    the   investigation    or                    prosecution   of   another  person   who  has                    committed  an offense,  the court  may depart                    from the guidelines.          U.S.S.G.    5K1.1.   This  guideline serves  a dual purpose.   In          addition to permitting ex post tailoring of defendants' sentences                                 __ ____          to reflect  meaningful assistance  rendered between the  dates of          apprehension and  sentencing, it  provides  defendants, ex  ante,                                                                  __  ____          with an incentive to cooperate in the  administration of justice.          See, e.g., United States v. Damer, 910 F.2d 1239, 1241 (5th Cir.)          ___  ____  _____________    _____          (per curiam), cert. denied, 111 S. Ct. 535 (1990).                        _____ ______                    The  methodological contrast between  the two departure          modalities is glaring.  Because section 5K2.0 in a sense operates          to  promote  disparity,  the  Sentencing  Commission  strove   to          minimize the  number of times it would  be invoked.  But, because          ________          section  5K1.1  operates  in  part  as  an  incentive,  promoting          cooperation  with  law   enforcement  agencies,  the   Sentencing          Commission strove to  maximize the  number of times  it would  be                                ________          invoked.5      These  divergent   purposes,   coupled   with  the                                        ____________________               5Available  statistics reflect  the Commission's  success in          achieving this differential.   Of 31,785 dispositions reported in          1991,  11.9  percent involved  substantial  assistance departures                                          8          significant  linguistic differences  between the  two guidelines,          clearly  indicate that  the legal  standard for  departures under          section  5K2.0  cannot  be  transplanted   into  the  substantial          assistance  sphere.  The district  court, therefore, erred in its          stated reliance on Aguilar-Pena.                             ____________               C.  The Standard for Substantial Assistance Departures.               C.  The Standard for Substantial Assistance Departures.                   __________________________________________________                    In  order to  determine whether  the court's  error was          harmless,  we must explore  the dimensions of  the legal standard          that the  district court should have  used.  We have  not yet had          occasion to discuss the way in which departure decisions ought to          be made under U.S.S.G.   5K1.1.  We do so today.                    1.       Discretion.      We    begin   with   bedrock.                    1.       Discretion.                             __________          Notwithstanding  that a government motion is a  sine qua non to a                                                          ____ ___ ___          departure for  a defendant's substantial assistance,  see Wade v.                                                                ___ ____          United States, 112 S. Ct. 1840, 1843 (1992), the decision whether          _____________          to depart after  the government has made such a  motion, like the          related decision  as to  the extent of  any resultant  departure,          falls squarely within the district  court's domain.  The district          court  is not  obligated  to  depart  downward simply  because  a          grateful  prosecutor  prefers a  lighter  sentence.   See  United                                                                ___  ______          States v. Spiropoulos, 976  F.2d 155, 162 (3d Cir.  1992); United          ______    ___________                                      ______          States v. Ah-Kai, 951 F.2d 490, 494 (2d Cir. 1991); United States          ______    ______                                    _____________          v. Munoz, 946 F.2d  729, 730 (10th  Cir. 1991); United States  v.             _____                                        _____________          Carnes, 945 F.2d  1013, 1014  (8th Cir. 1991);  United States  v.          ______                                          _____________                                        ____________________          whereas only 7.5 percent  involved all other departures combined.          See 1991 United States Sentencing Commission Ann. Rep. at 133-35.          ___                                          9          Richardson,  939 F.2d 135, 139  (4th Cir.), cert.  denied, 112 S.          __________                                  _____  ______          Ct. 599 (1991), 112  S. Ct. 942 (1992);  United States v.  Keene,                                                   _____________     _____          933 F.2d  711,  715 (9th  Cir. 1991);  Damer, 910  F.2d at  1241;                                                 _____          United  States v. Pippin, 903  F.2d 1478, 1485  (11th Cir. 1990).          ______________    ______          Put   bluntly,  while   a  government   motion  is   a  necessary          precondition  to  a downward  departure  based  on a  defendant's          substantial assistance, the docketing  of such a motion  does not          bind a  sentencing court  to abdicate its  responsibility, stifle          its independent judgment, or comply blindly with the prosecutor's          wishes.                    The government,  seeking a  more prominent role  in the          decisionmaking process,  points out the  Commission's advice that          "[s]ubstantial   weight  should  be  given  to  the  government's          evaluation  of   the  extent   of  the  defendant's   assistance,          particularly  where the  extent and  value of the  assistance are          difficult to ascertain."  U.S.S.G.   5K1.1, comment. (n.3).  But,          this  advice, although sound, was  never intended to  rein in the          district court's  discretion concerning the need  for, and extent          of,  a  downward departure  once a  government  motion is  on the          table.  See  United States  v. Castellanos, 904  F.2d 1490,  1497                  ___  _____________     ___________          (11th  Cir. 1990).   Rather,  Application Note  3 sets  forth the          suggested  degree of  deference that  should be  afforded  to the          prosecution's assessment  of the facts surrounding  a defendant's          assistance and intimates  that, particularly in difficult  cases,          the sentencing court ought  not to "inquire too  intrusively into          the government's  file" on  this delicate subject.   Spiropoulos,                                                               ___________                                          10          976  F.2d at 163 n.5; see also  Keene, 933 F.2d at 714 (observing                                ___ ____  _____          that the "prosecutor is  in the best position to know whether the          defendant's cooperation has been helpful").  When all is said and          done,  it  remains  the  district  judge's  decision     not  the          prosecutor's   whether to depart, and if so, to what degree.                    2.   Relevant Factors.   Although the  district court's                    2.   Relevant Factors.                         ________________          discretion in  passing upon a section 5K1.1 motion is wide, it is          not unbridled.  The guideline itself provides that:                    The appropriate reduction shall be determined                    by  the  court for  reasons  stated that  may                    include,    but    are   not    limited   to,                    consideration of the following:                         (1)  the  court's   evaluation  of   the                    significance    and    usefulness   of    the                    defendant's    assistance,     taking    into                    consideration the  government's evaluation of                    the assistance rendered;                         (2) the  truthfulness, completeness, and                    reliability of any  information or  testimony                    provided by the defendant;                         (3)  the   nature  and  extent   of  the                    defendant's assistance;                         (4) any injury  suffered, or any  danger                    or  risk of  injury to  the defendant  or his                    family resulting from his assistance;                         (5)  the  timeliness of  the defendant's                    assistance.          U.S.S.G. 5K1.1.   While  the Commission's list  is representative          rather  than exclusive,  the  five enumerated  factors should  be          considered the mother lode  of substantial assistance  inquiries.          A district court,  faced with a section  5K1.1 motion, must at  a          bare  minimum indicate its cognizance  of these factors.   In the          typical  case the  court  would also  do  well to  make  specific          findings regarding each item.                    The open-ended  nature of  the statutory list  does not                                          11          mean that a district court may consider any datum it pleases when          passing upon a section 5K1.1 motion.  As a basis for departing, a          court may  consider mitigating factors  only to  the extent  that          they  can  fairly be  said to  touch  upon the  degree, efficacy,          timeliness,  and  circumstances  of  a  defendant's cooperation.6          See United States  v. Chestna,  962 F.2d 103,  106-07 (1st  Cir.)          ___ _____________     _______          (per  curiam), cert. denied, 113 S. Ct. 334 (1992); United States                         _____ ______                         _____________          v. Thomas, 930 F.2d 526, 528-29  (7th Cir.), cert. denied, 112 S.             ______                                    _____ ______          Ct. 171 (1991).  After  all, the substantial assistance provision          is not to be used as a mechanism for short-circuiting other, more          restrictive provisions of the  sentencing guidelines.  See United                                                                 ___ ______          States v. Hall, 977 F.2d 861, 865 (4th Cir. 1992).7          ______    ____                    A  somewhat different  situation obtains in  respect to          the factors  that  a court  may  consider as  a means  to  remain          within,  or   incrementally  closer  to,  the  GSR.    Since  the          sentencing range itself  is an expression  of Congress's will,  a          district  court  retains  broad  discretion   to  exhume  factors          unrelated to substantial assistance before burying the GSR.  See,                                                                       ___          e.g.,  United States  v. Mittelstadt, 969  F.2d 335,  336-37 (7th          ____   _____________     ___________                                        ____________________               6The narrowing effect of  this circumscription should not be          exaggerated.     The  factors  that  legitimately   relate  to  a          defendant's cooperation may be  many and varied.  See  U.S.S.G.                                                              ___          5K1.1, comment. (backg'd) ("The  nature, extent, and significance          of assistance can involve  a broad spectrum of conduct  that must          be evaluated by the court on an individual basis.").               7As  this   logic  makes  clear,  the   government  and  the          appellants are incorrect in suggesting here that a district court          is  obliged  to consider  factors  such  as proportionality  when              _______          deciding whether,  or how much,  to depart  under section  5K1.1.          See United  States v. Kohl,  972 F.2d 294,  299 (9th Cir.  1992);          ___ ______________    ____          Richardson, 939 F.2d at 139.          __________                                          12          Cir.  1992) (ruling  that the  district court  did not  abuse its          discretion  in considering  defendant's chronic  alcoholism on  a          section 5K1.1 motion); Carnes, 945 F.2d at 1014 (holding that the                                 ______          benefit a defendant received  from the prosecution's decision not          to  press  an  additional  charge was  a  permissible  ground for          limiting  the extent of a downward  departure).  Even if the five          factors enumerated in section 5K1.1 weigh in a defendant's favor,          the district court may, on the basis of other considerations, not          constitutionally proscribed, cf., e.g., Wade, 112 S. Ct. at 1843-                                       ___  ____  ____          44;  United States  v. Drown,  942 F.2d  55, 60 (1st  Cir. 1991),               _____________     _____          decide to forgo  or curtail a downward  departure for substantial          assistance.                    In   sum,   the   limitations   on   the   variety   of          considerations that a court may mull in withholding or curtailing          a substantial assistance departure are not nearly so stringent as          those which pertain when a court  in fact departs downward.  This          seeming  paradox is neither unusual nor unsettling; indeed, it is          this very  quality of unequal centrifugal  and centripetal forces          that  helps distinguish  discretionary departure  provisions like          section 5K1.1 from the  sentencing guidelines' array of mandatory          adjustment  provisions like  U.S.S.G.     3E1.1  (adjustment  for          acceptance  of  responsibility)  and  U.S.S.G.      3B1.1,  3B1.2          (adjustment for aggravating or mitigating role in the offense).                    3.   Weighing the Factors.  Once the government files a                    3.   Weighing the Factors.                         ____________________          section 5K1.1 motion, weighing  the relevant factors in  order to          decide  whether to depart (and  if so, by  how much) is something                                          13          best  done by the sentencing  court.  United  States v. Atkinson,                                                ______________    ________          ___ F.2d  ___, ___ (7th Cir. 1992) [1992 U.S. App. LEXIS 30082 at          *22-25]; Thomas, 930 F.2d at  531.  In the section 5K1.1  milieu,                   ______          as elsewhere,  the court of  appeals will, to  the extent of  its          jurisdiction, review  discretionary decisions only  for abuse  of          discretion; and we will review the extent of a departure based on          an  acceptable set of factors only to ensure reasonableness.  See                                                                        ___          Diaz-Villafane, 874 F.2d at 49.          ______________                                   D.  Summing Up.                                   D.  Summing Up.                                       __________                    We rule today that the legal standard for departure  is          materially different under U.S.S.G.   5K1.1 than under U.S.S.G.            5K2.0.   A district court confronted with a government motion for          departure  pursuant to  section 5K1.1  must consider  the factors          specifically  enumerated  in  that  guideline as  well  as  other          factors which in the  court's judgment bear on the  decision.  In          so  doing,  however, the  court  must  recognize that  mitigating          concerns  are  relevant   only  insofar  as  they  relate   to  a          defendant's substantial assistance.   In all events, the district          court retains wide discretion  concerning whether to depart under          section  5K1.1; and, if it decides that a departure is warranted,          it also possesses appreciable discretion in fixing the  extent of          the departure.                    In  these  cases,  the   district  court  premised  its          decision  not  to depart  on a  legal  standard designed  to hold          departures  to a minimum    a standard  that has  no relevance in          respect to substantial assistance departures.  And, although many                                          14          of the integers that enter into the section 5K2.0 calculus can be          considered  for  certain purposes  under  section  5K1.1, we  are          unable confidently to say  on this record that the  judge's error          was  harmless.    Thus, we  remand  to  the  district court  with          instructions  to vacate  appellants'  sentences and  conduct  new          sentencing hearings.  We see no need to require  that a different          judge preside over  the resumed proceedings.   Cf., e.g.,  United                                                         ___  ____   ______          States v. Diaz-Bastardo, 929 F.2d 798, 800-01 (1st Cir. 1991).          ______    _____________          III.  THE COURT'S CHOICE OF AN ANALOGOUS GUIDELINE          III.  THE COURT'S CHOICE OF AN ANALOGOUS GUIDELINE                    Given  the fact  that new  sentencing hearings  will be          held,  we decline,  with  one exception,  to address  appellants'          other  challenges  to  the  proceedings below.8    The  exception          relates  to   appellants'  assertion  that  the  district  court,          confronted by  a lacuna  in the  guidelines,  failed properly  to          select  the  most analogous  guideline  as a  starting  point for          computing  the GSR.  We treat  with this assertion because we can          envision no circumstances in  which a choice of this  nature will          not face the district court on remand.                    We set the stage.  The Sentencing Commission has yet to          promulgate  an   offense  guideline   covering  the  offense   of          conviction  in these cases, i.e.,  the making of illicit payments                                      ____          to  a municipal official in  violation of 18  U.S.C.   666(a)(2).          In  such circumstances,  U.S.S.G.    2X5.1  directs the  district                                        ____________________               8Because  we  do   not  reach  appellants'  "reasonableness"          argument, we  take no  view of  the  suitability vel  non of  the                                                           ___  ___          sentences originally imposed.                                          15          court to  "apply the most analogous offense  guideline" unless no          "sufficiently  analogous guideline"  can be  found.9   Appellants          urged that U.S.S.G.   2C1.2 (dealing in part with the giving of a          gratuity  to a  public official)  provided the  best basis  for a          comparison.   The  district court  rejected this  exhortation and          found U.S.S.G.    2C1.1 (dealing  with bribery of,  and extortion          by, public officials) to be the most analogous guideline.                    We  discern no  error  in this  determination.   Before          explaining  our   reasoning,  however,   we  first   address  the          appropriate standard of appellate review.                               A.  Standard of Review.                               A.  Standard of Review.                                   __________________                    An appellate  tribunal must "give due  deference to the          district court's application of the guidelines to the facts."  18          U.S.C.   3742(e)  (1988).   We have interpreted  this statute  as          requiring,  in most instances, that the court of appeals review a          trial court's application of a sentencing  guideline to the facts          only for clear error.  See, e.g., United States v. Ruiz, 905 F.2d                                 ___  ____  _____________    ____          499, 507  (1st Cir. 1990); United States v. Wright, 873 F.2d 437,                                     _____________    ______          444  (1st Cir.  1989).    The  propriety  of  using  the  clearly          erroneous  standard   in   scrutinizing  a   sentencing   court's                                        ____________________               9In  the court  below, appellants  argued that  a particular          offense guideline,  U.S.S.G.     2C1.2, was  a  better  fit  than          U.S.S.G.   2C1.1 (the offense guideline deemed most comparable by          the  district judge).   On appeal,  Butterworth attempts  for the          first  time   to  raise  the  different  issue   of  whether  any                                                                        ___          sufficiently analogous guideline exists.  This issue has not been          properly preserved  for appellate review.   See United  States v.                                                      ___ ______________          Slade, ___ F.2d ___, ___  (1st Cir. 1992) [No. 92-1176, slip  op.          _____          at 6] (reiterating the established rule that points not argued in          the  district  court  cannot be  raised  for  the  first time  on          appeal).                                          16          application of law  to fact  will depend largely  on whether  the          question presented  is essentially factual or  essentially legal;          the  more fact-dominated the question, the more likely it is that          clear-error review  will be  appropriate.   See United States  v.                                                      ___ _____________          Ortiz,  878 F.2d  125, 126-27  (3d Cir.  1989); United  States v.          _____                                           ______________          Daughtrey,  874 F.2d 213, 217-18 (4th Cir. 1989); see also Roland          _________                                         ___ ____ ______          M. v.  Concord School Comm., 910 F.2d 983, 990-91 (1st Cir. 1990)          __     ____________________          (discussing desirability of clear-error review in instances where          a district court must find the facts and then make  an evaluative          judgment, applying a defined legal standard to the facts),  cert.                                                                      _____          denied, 111 S. Ct. 1122 (1991).          ______                    In  these cases, a series of  factors suggests that the          contested  issue lies  closer to  the fact-intensive  end  of the          continuum:    there  is  no indication  that  the  district court          misunderstood the  choices presented under the  guidelines; there          is  no  articulation of  a dispute  concerning  the reach  of the          provisions  proffered  as  suitable  analogs;  and  there  is  no          necessity for us, in resolving  the controversy, to determine the          far  broader  (and  essentially  legal)  question  of  whether  a          particular offense guideline will always  be most analogous to 18                                            ______          U.S.C.   666(a)(2).  Simply stated, the issue before the district          court  was whether  appellants' actions  in "corruptly  giv[ing]"          payoffs  to  municipal officials  "with  intent  to influence  or          reward"  those officials  in connection  with city  contracts, 18          U.S.C.     666(a)(2), were  more  akin to  providing  a gratuity,          U.S.S.G.    2C1.2,  than to  passing a  bribe, U.S.S.G.    2C1.1.                                          17          This issue is  essentially factual.   It required  the court,  in          effect,  to  find  the  facts   pertaining  to  the  offenses  of          conviction and make  evaluative judgments concerning those  facts          (including  a judgment  as to  whether appellants'  payments were          intended to  "influence," rather than  "reward," city officials).          Accordingly,   we  apply   the  clearly  erroneous   standard  of          review.10                             B.  The Appropriate Analogy.                             B.  The Appropriate Analogy.                                 _______________________                    The essential difference between a bribe and an illegal          gratuity is the intention of the bribe-giver to effect a quid pro                                                                   ____ ___          quo.  See United States  v. Muldoon, 931 F.2d 282, 287  (4th Cir.          ___   ___ _____________     _______          1991).  Hence, a bribery guideline, section 2C1.1, applies when a          transfer  of money  has "a  corrupt purpose,  such as  inducing a          public official to  participate in  a fraud or  to influence  his          official actions."   U.S.S.G.    2C1.1, comment. (backg'd).   The          gratuity provision, on the other hand, does not include a corrupt          purpose as  an element of  the offense.   See  U.S.S.G.    2C1.2,                                                    ___          comment. (backg'd).                                        ____________________               10In the event  no sufficiently analogous  guideline exists,          the  sentencing  court  must  resort to  the  general  principles          adumbrated  in 18 U.S.C.   3553(b) (1988) (providing that, in the          absence  of  an offense  guideline,  the  court  shall impose  an          "appropriate" sentence,  having due  regard for, inter  alia, the                                                           _____  ____          gravity  of the  offense;  the need  for punishment,  deterrence,          retraining, and the like; and  "the relationship of the  sentence          imposed to sentences prescribed  by [other] guidelines . .  . and          the applicable policy statements of  the Sentencing Commission").          Because that scenario  has no bearing here, see supra  note 9, we                                                      ___ _____          find inapposite the standard of review limned in United States v.                                                           _____________          Gabay,  923 F.2d 1536, 1545  (11th Cir. 1991)  (employing de novo          _____                                                     __ ____          review where  defendant contended that  no sufficiently analogous          guideline existed).                                          18                    This distinction between the  two offense guidelines is          brought into bold relief by  the differences between the statutes          to  which the guidelines relate.   The bribery guideline applies,          for example, to the offense of "corruptly giv[ing] . . . anything          of value" to a federal official with the intent of "influenc[ing]          any  official act" or "inducing"  the official to  violate his or          her  lawful duty.   18  U.S.C.    201(b)(1)  (1988).   This seems          virtually  to mirror the statute of conviction here, which, among          other things, criminalizes "corruptly giv[ing]  . . . anything of          value  to any  person, with  intent to  influence" a  decision of          state or local  government.  18 U.S.C.    666(a)(2).  The  common          thread  that  runs through  both statutes  is  the intent  of the          payer, by the greasing  of palms, to affect the future actions of          a public official.  In contrast, the gratuity guideline refers to          crimes of a somewhat  different genre.  It applies,  for example,          to persons who  give things of value to federal  officers "for or          because of any official act performed or to be  performed by such          public official."   18  U.S.C.    201(c)(1)(A) (1988).   Notably,          under the gratuity  guideline, there is  no requirement that  the          gift be "corruptly" given  with the intent to affect  the payee's          mindset or actions.  Phrased another way, the  gratuity guideline          presumes a situation in which the offender gives the gift without          attaching any  strings,  intending it  instead  as a  reward  for          actions  the public  official  has already  taken  or is  already          committed to take.                    With these distinctions in mind, appellants' contention                                          19          is easily dispelled.   Here, Mariano admitted that he  paid large          sums  of  money  in  order   to  forestall  city  officials  from          reassigning  the work.    Butterworth likewise  admitted that  he          forked  over $100,000 so that  he could retain valuable contracts          which Pawtucket might otherwise  have redirected to a competitor.          Since Mariano and Butterworth  each sought to receive a  quid pro                                                                   ____ ___          quo, in the form  of future (favorable) treatment, and  since the          ___          offenses to  which they  pleaded guilty involved  corrupt intent,          the district  court's determination that their  actions were more          akin  to  bribe-giving  than   to  gift-giving  was  not  clearly          erroneous.                    To be sure, appellants  protest that they were victims,          not  perpetrators,  of  an  extortionate scheme,  and  that  they          received nothing extra in  return for their magnanimity.   We are          unmoved  by these  plaints.   The fact  that appellants,  in some          sense, may have  been the quarry of a pack  of venal politicians,          and did not themselves  initiate the forbidden transactions, does          not negate  the district court's  choice of a  guideline analogy.          Bribery and extortion are not mutually exclusive concepts.   See,                                                                       ___          e.g.,  United States v. Hathaway,  534 F.2d 386,  395 (1st Cir.),          ____   _____________    ________          cert. denied, 429  U.S. 819 (1976).  And the fact that appellants          _____ ______          had already  received sewer-line and stadium  repair contracts at          payoff time  is  also not  outcome  determinative.   Despite  the          chronology,  the  district  court  could  supportably  find  that          Mariano and Butterworth corruptly intended their illicit payments          to influence the  future actions of the late,  unlamented Sarault                                          20          administration.                    We  need go no further.   Having willingly  sat down to          sup  with the devil, appellants  cannot now expect  the courts to          swallow their tale uncritically.  The guideline analogy chosen by          the  district  court was  well within  its  purview.   See United                                                                 ___ ______          States v.  St. Cyr, 977  F.2d 698, 706  (1st Cir.  1992) (holding          ______     _______          that  "when  there are  two plausible  views  of the  record, the          sentencing  court's adoption of  one such view  cannot be clearly          erroneous"); Ruiz, 905 F.2d at 508 (similar).                       ____                    The defendants' sentences are vacated and the cases are                    The defendants' sentences are vacated and the cases are                    _______________________________________________________          remanded for resentencing.          remanded for resentencing.          _________________________                                          21
