December 16, 1993 UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 93-1403

                        UNITED STATES,

                          Appellee,

                              v.

                      EDIBERTO RAMIREZ,

                    Defendant, Appellant.

                                        

                         ERRATA SHEET

   The  opinion of  this court  issued on  December 9,  1993 is
amended as follows:

   Page 5, line 7:  Change "Ramirez'" to "Ramirez's".

   Page 5, line 24:  Change first "was" to "is".               

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 93-1403

                        UNITED STATES,

                          Appellee,

                              v.

                      EDIBERTO RAMIREZ,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

     [Hon. Francis J. Boyle, Senior U.S. District Judge]
                                                       

                                         

                            Before

                     Breyer, Chief Judge,
                                        
                Selya and Cyr, Circuit Judges.
                                             

                                         

Francis R. Williams on brief for appellant.
                   
Edwin  J. Gale,  United  States Attorney,  Margaret E.  Curran and
                                                              
Lawrence  D. Gaynor, Assistant  United States Attorneys,  on brief for
               
appellee.

                                         

                       December 9, 1993
                                         

          Per Curiam.   Defendant-appellant  Ediberto Ramirez
                    

pleaded guilty to  a two-count indictment which  charged him,

after having been convicted of a felony, with possession of a

firearm and of  ammunition, respectively, in violation  of 18

U.S.C.    922(g).  The presentence investigation  report (PSI

Report) stated that Ramirez was observed firing the weapon in

a   public  place.    Imposing  sentence  under  the  federal

sentencing   guidelines  and   departing   upward  from   the

applicable  guideline  sentencing range,  the  district court

sentenced  appellant to a  37-month prison term  and a 3-year

supervised  release term.   The  court  further ordered  that

appellant   be  remanded   to  the  custody   of  immigration

authorities  for deportation  proceedings  upon his  release.

Ramirez appeals from his sentence.  We affirm.

                              A.
                               

          The PSI Report recommended that Ramirez be assigned

eleven  criminal history points  based on his  prior criminal

convictions and on the fact that the instant offense occurred

while he  was under  a sentence of  probation for  a previous

offense.  It then listed the following prior criminal conduct

as an adult: three charges of assault with a dangerous weapon

(once a broom handle, once a BB gun, and once a handgun), the

last of which is still pending; and one charge of driving  to

endanger,  death  resulting  (associated  with  a  charge  of

possessing a stolen  motor vehicle), which is  still pending.

Finally,  the PSI Report listed two "factors that may warrant

departure":      (1)  that   several  of   appellant's  prior

convictions were consolidated for sentencing, and as a result

were  "undercounted"  in  the  calculation  of  his  criminal

history score,  and (2) that  the offense  of conviction  was

committed while Ramirez was free on bail.

          In announcing  its decision  to depart  upward, the

district court stated:

          I have  reviewed the  pre-sentence report
          and  considered  the  objections  of  the
          defendant  to an  upward  departure.   It
          seems to me  that this is a case in which
          upward departure  is not  only justified,
          it's required.   We have a  defendant who
          is 19 years or so old, who has never  had
          a  job so  far as  I can see,  whose sole
          occupation  is   taking  other   people's
          property  and  who   is  escalating  this
          conduct from  assaulting somebody  with a
          broomstick  to firing  a  firearm in  the
          air, the carrying of a firearm.  It seems
          to me the charge itself that he's here on
          doesn't really  indicate the  seriousness
          of the conduct  that's involved here  and
          it  seems  to  me  that  the  computation
          significantly     under-represents    the
          seriousness of the  past criminal conduct
          and the  likelihood of the  commission of
          further crime in  the circumstance.  Here
          the record pretty  fairly shows that  the
          defendant   is   content   to  accomplish
          nothing  but   violations  of   the  law.
          Although  he  does  indicate  that he  is
          sorry this happened, takes responsibility
          for it, it's pretty clear to me that this
          record  doesn't justify,  or this  record
          results  in  under-representation.    I'm
          going to depart
          ---

                            . . .

                             -3-

          You're 20 years old  and you've never had
          a job and you tell me that you don't know
          anything  about  earning  respect because
          you haven't been  respected.  Your mother
          has to  work  very hard  to support  you.
          It's  about time  you  took  some of  the
          responsibility for what you do.  It's not
          the alcohol that drives  these cars away,
          get into  accidents in  which people  get
          killed.  Not the alcohol  that does that.
          It's  not  the  alcohol  that steals  the
          cars.   You're  apparently  not so  drunk
          that  you can't steal a car and drive it.
          It's  you  driving   the  car,  not   the
          alcohol.   It's  you  stealing  and  then
          escalating  the cars  one after  another.
          It's  you  assaulting   somebody  with  a
          broomstick  and then  a BB  gun  and then
          finally  running  around  with  a  loaded
          pistol  firing it in  the air.   It's not
          the alcohol that's firing that gun.  It's
          not the alcohol  that possesses that gun.
          It's  you.  How many other people's lives
          are in  jeopardy because  you don't  take
          responsibility  for  what  you're  doing,
          until push comes  to shove, until  you're
          here and  you know  you're really  facing
          some time,  you know you're  really going
          to jail for  the first time.  I think you
          need  some time  to think about  what the
          future  of  your  life  is going  to  be,
          really, really think about it.

          The district  court, by  its reference  to the  PSI

Report  in the  context  of elaborating  the  reasons for  an

upward  departure,  appears  to have  based  its  decision to

depart, at  least in  part, on the  two possible  grounds for

departure  suggested by the probation department.  On appeal,

Ramirez raises no objection  to either of those  two grounds.

Rather,  his  sole   challenge  on  appeal  is  to   what  he

characterizes  as the  district  court's  decision to  depart

upward on the basis of his prior arrest record.  

                             -4-

          His challenge  has two  prongs.   First, he  argues

that  an upward  departure on  the  basis of  a prior  arrest

record is forbidden by U.S.S.G.   4A1.3, which states that "a

prior arrest  record itself shall  not be considered  under  

4A1.3."  Second,  he argues that the district  court "had not

adequately  explained the factual basis  for its use of those

arrests as a ground for departure."

                              B.
                               

            We  disagree with  Ramirez's characterization  of

the  district court's departure as impermissibly based on his

prior arrest  record itself.   U.S.S.G.   4A1.3 states:   "If

reliable  information  indicates  that  the criminal  history

category does not  adequately reflect the seriousness  of the

defendant's  past criminal conduct or the likelihood that the

defendant  will commit other  crimes, the court  may consider

imposing a sentence  departing from the otherwise  applicable

guideline range.   Such information  may include, but  is not

limited to, information concerning:  . . . (e)  prior similar

adult  criminal   conduct  not   resulting   in  a   criminal

conviction."  To be sure, the guideline goes on to state that

"a prior arrest  record itself shall  not be considered"  for

this purpose.   But, so long as that  limitation is observed,

prior similar adult criminal conduct  is a basis on which the

Sentencing  Commission  has "encouraged"  upward  departures.

United States v.  Rivera, 994 F.2d 942, 948  (1st Cir. 1993).
                        

                             -5-

We conclude  that the  district court's  upward departure  is

permissible if it was made  on the basis of reliable evidence

of  prior similar  adult criminal  conduct,  even though  the

conduct  did  not  result,  or   had  not  yet  resulted,  in

convictions.

                              C.
                               

          We   turn   next    to   whether   the   particular

circumstances cited by  the district court "are of  a kind or

degree that they may appropriately be  relied upon to justify

departure."   Id. at  950.  In  this instance,  that question
                

boils down to  whether the prior conduct is  "similar" to the

offense of conviction, as required by U.S.S.G.   4A1.3(e).

          The offense  of conviction, again, is possession of

a firearm, under circumstances in which Ramirez, in  a public

place, discharged  the firearm  in the  air.  The  similarity

between this offense  and appellant's  prior alleged  conduct

involving  assault with  a  broom  handle, a  BB  gun, and  a

handgun, -- possession  and/or threatened use of  a dangerous

weapon -- is  clear.  See United States v.  Tabares, 951 F.2d
                                                   

405,  411  (1st  Cir.  1991)  (assuming  that  prior  conduct

involving possession of a dangerous weapon and assault with a

deadly weapon was similar to possession of a firearm); United
                                                             

States  v. Cota-Guerrero,  907  F.2d 87,  89 (9th  Cir. 1990)
                        

("Inasmuch as they  show a propensity  toward violence and  a

willingness to use force, these crimes [assault with a deadly

                             -6-

weapon and assault  and battery] may be viewed  as similar to

possession of a firearm by a felon").

          The similarity between the  instant firearm offense

and  the  prior   conduct  of  driving  to   endanger,  death

resulting, is  less obvious.   Nevertheless, we find  -- with

appropriate respect  for the district court's superior "feel"

for the  particular circumstances  of the  case, Rivera,  994
                                                       

F.2d at  951-52 --  that, at  least  under the  circumstances

present here, the offenses are sufficiently "similar" to form

part  of  the  justification for  an  upward  departure under

U.S.S.G.   4A1.3.

          The  district   court  stated   clearly  that   its

paramount  concern  was  appellant's record  of  "escalating"

recidivism --  a pattern of  conduct suggesting to  the court

that Ramirez did  not care "[h]ow  many other people's  lives

are  in jeopardy" because Ramirez did not take responsibility

for  his own  acts.   Appellant's  prior  alleged conduct  of

driving  to  endanger,  death  resulting,  like  the  instant

firearms  offense, displays  a  reckless indifference  toward

human life.   The  two crimes  can, therefore,  reasonably be

viewed, at  least under  present circumstances,  as "similar"

offenses.  Cf.  United States v.  Moore, 931  F.2d 3, 4  (1st
                                       

Cir. 1991) (treating as "similar" offenses that "reveal . . .

the same  sort of  dishonesty and  misappropriation of  other

people's property").

                             -7-

                              D.
                               

          The remaining question  -- since appellant has  not

challenged the "degree" of departure, see Rivera, 994 F.2d at
                                                

950 -- is whether "the evidence . . . supports the departure-

related findings  of fact."   Id.   In  other words,  did the
                                

district court base  its ruling on "reliable  information" of

"prior  similar adult  criminal conduct  not  resulting in  a

criminal  conviction"  that  indicates  "that  the   criminal

history category does not adequately  reflect the seriousness

of  the defendant's past  criminal conduct or  the likelihood

that the  defendant will  commit other  crimes"?   U.S.S.G.  

4A1.3.  We think this query merits an affirmative answer.    

          In  Tabares, 951  F.2d 405,  we  upheld a  district
                     

court's upward departure on the basis of three prior criminal

charges  (possession of a  dangerous weapon and  two assaults

with a deadly weapon)  that had not resulted in  convictions.

All  three prior  charges  had  been  dismissed  for  reasons

unrelated to the merits.  We determined that the PSI Report's

account  of  these  prior  instances  constituted   "reliable

information" to support an upward departure.  Id. at 411.  In
                                                 

the process,  we noted  specifically defendant's  "failure to

contest   the  facts  and  the  absence  of  any  acquittal,"

circumstances  that  left  little  "doubt  that   these  acts

occurred."  Id.;  see also United States v.  Torres, 977 F.2d
                                                   

                             -8-

321, 330 (7th Cir. 1992) (observing that, "[w]hen a defendant

has  an opportunity  to and  fails  to object  to the  facts,

information, and records used to support a departure [on  the

basis  of prior  similar adult  criminal  conduct], there  is

little  reason  to question  a  district court's  decision");

United States  v. Gaddy,  909 F.2d 196,  201 (7th  Cir. 1990)
                       

(similar).

          These authorities  get the  grease from  the goose.

In this  case, the  PSI Report  contains descriptions,  taken

from the original case files, of the conduct that led to each

of the prior charges.  In this case, as in Tabares, appellant
                                                  

received  a full opportunity to object to these descriptions,

and  he raised  no objections.   The  district court  plainly

relied  on these  descriptive accounts  of appellant's  prior

conduct, not on the  mere fact of prior arrests.   And, there

can be no question of  the seriousness of the conduct alleged

in these  charges.   Under the same  reasoning we  applied in

Tabares,  therefore,  we  find that  the  evidence  of record
       

adequately supports an upward departure on the basis of prior

similar adult criminal conduct.

                              E.
                               

         Turning to  appellant's final  argument --  that the

district court did  not adequately explain the  factual basis

for its use of the prior charges as a ground for departure --

we acknowledge that the court's discussion of its reasons for

                             -9-

departure might, in  one respect, fall slightly short  of the

requirements set forth in Rivera, 994 F.2d 942.  The district
                                

court's  remarks leave some ambiguity about whether the court

relied,  at least  in part,  on  the two  grounds for  upward

departure recited  in the  PSI Report.   In other  words, the

district court did  not expressly explain its  reasoning with

regard  to those two  grounds.   Appellant, however,  has not

challenged the  district court's use of these grounds, so any

error is necessarily harmless.

          As  to the remaining ground for departure, based on

appellant's prior  alleged  criminal  conduct,  the  district

court did  set forth its  reasoning in adequate detail.   The

court  explained its  concern  that  the  guideline  sentence

understated   the  potential   for  "escalating"   recidivism

suggested   by  appellant's  prior  conduct.    No  more  was

exigible.1

                              F.
                               

          We need go no further.  On this record, appellant's

sentence was lawfully constructed and imposed.

                    

1.  Even if we assume, arguendo,  that the district court did
                               
not  adequately  explain  its   analysis  under  the   Rivera
                                                             
standard,  we are mindful that appellant was sentenced before
this court  decided Rivera.   We have recognized  that Rivera
                                                             
looked  to the future:  "In future  cases we would expect, in
line with our general discussion in Rivera, a very deliberate
                                          
discussion of  the factors making  the case unusual.   But we
see no purpose served in this case, decided below without the
benefit of our recent guidance, in remanding to make explicit
what was implicit."   United States v. Sclamo,  997 F.2d 970,
                                             
974 (1st Cir. 1993).  So it is here.

                             -10-

          Affirmed.
                  

                             -11-
