                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 93-1847

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                          TELEX LEBLANC,

                       Defendant-Appellant.

                                           

No. 93-1848

                    UNITED STATES OF AMERICA,

                       Plaintiff-Appellant,

                                v.

                        TELEX J. LEBLANC,

                       Defendant-Appellee.

                                           

No. 93-1998

                    UNITED STATES OF AMERICA,

                            Appellant,

                                v.

                      RICHARD E. WEINSTEIN,

                       Defendant-Appellee.

                                           

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Joseph L. Tauro, U.S. District Judge]
                                                     

                                           

                              Before

                    Torruella, Circuit Judge,
                                            

                  Aldrich, Senior Circuit Judge,
                                               

                     and Cyr, Circuit Judge.
                                           

                                           

     Frances  L.  Robinson with  whom  Davis,  Robinson &amp;  White,
                                                                
Thomas Drechsler and Finneran, Byrne, Drechsler &amp; O'Brien were on
                                                         
brief for Telex J. LeBlanc.
     Brian T. Kelly, Assistant  United States Attorney, with whom
                   
Donald K. Stern, United  States Attorney, and Fred M.  Wyshak II,
                                                                
Assistant United States Attorney, were on brief for United States
of America.
     Kenneth I. Seiger, by Appointment of the Court, for appellee
                      
Richard E. Weinstein.

                                           

                           May 24, 1994
                                           

                               -2-

          TORRUELLA, Circuit Judge.   In this opinion, we address
                                  

sentencing issues which are consolidated  from three appeals.  In

United  States v.  LeBlanc  and United  States v.  Weinstein, the
                                                            

Government has  appealed the district court's  decision to depart

downward from the applicable Sentencing Guideline range.  In both

cases,  the district  court ruled  that, in essence,  the illegal

conduct  of  Telex  J.  LeBlanc  and  Richard  E.  Weinstein  was

bookmaking, and  therefore, it  was more appropriate  to sentence

them pursuant to guidelines  established for operating an illegal

gambling business,  rather than pursuant to  the money laundering

guidelines, which  were applicable  to the  crimes to  which both

LeBlanc  and  Weinstein  had  pled  guilty.    For the  following

reasons,  we reverse and remand  the cases to  the district court

for resentencing.

          In a  cross-appeal, LeBlanc  v. United  States, LeBlanc
                                                        

claims  that  the district  court erred  in  its decision  not to

depart downward from the Sentencing Guidelines based on LeBlanc's

medical  condition.  We dismiss this appeal for want of appellate

jurisdiction.

                   I.  THE GOVERNMENT'S APPEALS

                          A.  BACKGROUND

          We view the  facts as  set forth in  the indictment  to

which the defendants pled guilty,  and in unobjected to  portions

of  their respective  Presentence  Reports ("PSR").   See  United
                                                                 

States  v. Fox, 889  F.2d 357, 358  (1st Cir.  1989); Kerrigan v.
                                                              

United States, 644 F.2d 47, 49 (1st Cir. 1981).
             

                               -3-

          1.  Telex J. LeBlanc

          LeBlanc and two other individuals, Stephen Dickhaut and

William  Byrne, operated an illegal gambling business  during the

years  1986 through 1990.   Essentially, LeBlanc was convicted of

money  laundering based  upon his  acceptance and  negotiation of

checks from gamblers who  bet on various sporting events  through

the  bookmaking business.   LeBlanc  was an  "agent" for  his two

codefendants  who "owned" the  business, and LeBlanc  had his own

"customers" for whom he received commissions.

          The  gamblers'  checks  were  usually made  payable  to

fictitious payees and  were in  amounts less than  $10,000.   For

instance, one  gambler settled a  gambling debt with  LeBlanc and

his codefendants by  giving them four  cashier's checks from  the

First National Bank of  Boston, all dated November 26,  1990, and

each in the amount of $8750.  These cashier's checks were payable

to  a  fictitious  payee,   "J.  Johnson."    LeBlanc  personally

negotiated one  of these  cashier's checks at  Baybank Boston  on

November 27, 1990.

          On November  12, 1992, a federal grand  jury returned a

seventeen-count  indictment against  LeBlanc.  Count  One charged

that between  1986 and 1990,  LeBlanc and  two other  individuals

conspired to  violate money  laundering and  currency transaction

laws in violation of 18  U.S.C.   371.  Counts Two  through Four,

and  Counts  Eight  through  Sixteen,  charged  LeBlanc  and  his

codefendants  with  various substantive  money  laundering crimes

including violations of 18 U.S.C.    1956 and 1957, as well as 31

                               -4-

U.S.C.   5324.

          On January 25, 1993, LeBlanc pled guilty to Counts One,

Two, Nine, Eleven, Twelve, Fifteen and Sixteen of the indictment.

LeBlanc's guilty pleas  were entered pursuant to a plea agreement

with the Government, in which LeBlanc  agreed that he had in fact

violated   the  money   laundering  statutes  specified   in  the

indictment.

          The  Probation Department  then issued  its PSR,  which

indicated that,  based upon sentencing "grouping"  rules, LeBlanc

should be  sentenced for money laundering, based  upon his guilty

plea to 18 U.S.C.    1956(a)(1)(B)(i) and (ii).1   Therefore, the

offense level, as set forth in U.S.S.G.   2S1.1, should have been

23.2   The Government suggested that after a three level decrease

in  offense level for  acceptance of  responsibility and  a three

                    

1   Because  all  of  the counts  to  which  LeBlanc pled  guilty
involved  substantially the  same  harm, the  counts  were to  be
"grouped"  together  pursuant  to   U.S.S.G.     3D1.2(d).    The
sentencing guidelines applicable to the specific money laundering
offenses to which LeBlanc pled  guilty were U.S.S.G.    2S1.1-.3.
U.S.S.G.   2S1.1(a)(2) establishes a base offense level of 20 for
laundering  monetary  instruments in  violation  of  18 U.S.C.   
1956(a)(1)(B)(i) and  18 U.S.C.   1956(a)(1)(B)(ii).   U.S.S.G.  
2S1.2(a) establishes a base offense level of 17 for violations of
18 U.S.C.   1957.   U.S.S.G.   2S1.3(a)(1)(A) establishes  a base
offense level of 13 for structuring transactions in  violation of
31 U.S.C.    5324.  According to U.S.S.G.    3D1.3, the Guideline
section with  the  highest  offense level  must  be  utilized  to
calculate the Guideline range  for these money laundering crimes.
Under  either U.S.S.G.    3D1.3(a)  or (b),  the highest  offense
level (i.e. 20) should have been applied to LeBlanc.

2   In  the plea  agreement, the  Government stipulated  that the
value of the funds involved  in the counts to which LeBlanc  pled
guilty   was  less  than  $600,000.     Pursuant  to  U.S.S.G.   
2S1.1(b)(2)(D), three points were added to the base offense level
of 20 because the value of the funds exceeded $350,000.

                               -5-

point decrease  in offense  level for LeBlanc's  mitigating role,

the final total offense level should be 17 with a guideline range

of 24-30 months' incarceration.

          On  June  25, 1993,  the  district court  held  a final

disposition hearing.  At  this hearing, the court found  that the

conduct  attributable  to  LeBlanc  was  essentially  that  of  a

bookmaker, who  took sporting bets from bettors.  His status as a

"money  launderer" arose solely by  virtue of the  fact that bets

were placed with him by check, and these checks were subsequently

either negotiated by  him or turned over to Dickhaut and Byrne to

be  negotiated by  them.   The court  stated that  LeBlanc's case

involved  behavior that  fell  outside of  the  "heartland" of  a

typical  money  laundering offense  and,  therefore, warranted  a

downward departure from the otherwise applicable Guideline range.

The court then ruled  that the Guideline section established  for

operating an illegal gambling  business was more appropriate, and

proceeded  to  sentence  LeBlanc  to   12  months'  incarceration

pursuant to U.S.S.G.    2E3.1, which sets forth an  offense level

of 12  and a corresponding  Guideline range  of 10 to  16 month's

incarceration for an individual  with a Criminal History Category

of I.

          2.  Richard E. Weinstein

          Weinstein  operated an  illegal gambling  business from

1986 to 1991.   In January 1988, Weinstein began  accepting large

sports bets from a gambler named Elliot Mael.  In order to gamble

through Weinstein, Mael would call Weinstein's beeper and leave a

                               -6-

code number representing  Mael.  Weinstein  would then call  Mael

and  accept his wagers.  Mael would  "settle" with Weinstein on a

weekly basis, and usually exchanged cash.

          In  October 1988,  Mael  owed  Weinstein  approximately

$200,000 in gambling  debts.  To satisfy part of  this debt, Mael

paid  Weinstein  $75,000  in   cashier's  checks.    Pursuant  to

Weinstein's instructions, Mael made nine cashier's checks payable

to Brockton  Financial Services  rather than to  Weinstein.   The

nine cashier's checks were issued by the Bank of New England, and

were  all  dated October  14, 1988.    Weinstein then  gave these

cashier's  checks to  another bookmaker,  James Katz,  who cashed

them at Brockton Financial Services.  The checks  were structured

so as to avoid currency reporting requirements applicable to cash

transactions exceeding  $10,000 --  eight checks were  for $9,000

and one check was for $3,000.

          On November 12, 1992,  a federal grand jury  returned a

five-count indictment against Weinstein.   Count One charged that

between 1986 and 1991, Weinstein  and others conspired to violate

money laundering and currency transaction laws in violation of 18

U.S.C.   371.  Counts Two, Three and Four charged  Weinstein with

various substantive money laundering crimes, including violations

of 18 U.S.C.    1956  and 1957, as well as 31 U.S.C.    5324.  On

March 4, 1993, Weinstein  pled guilty to Counts One  through Four

of  the  indictment.    Weinstein's  guilty  pleas  were  entered

pursuant  to  a  plea  agreement  with the  Government  in  which

Weinstein   agreed  that  he  had  in  fact  violated  the  money

                               -7-

laundering statutes specified in the indictment.

          The  Probation Department  then issued  its PSR,  which

indicated that, based upon sentencing "grouping" rules, Weinstein

should  be sentenced for money  laundering, based upon his guilty

plea to 18 U.S.C.    1956(a)(1)(B)(i) and (ii).3   Therefore, the

base  offense level,  as  set forth  in  U.S.S.G.    2S1.1(a)(2),

should have been 20.  The Government suggested that after a three

level reduction for  acceptance of responsibility, as well  as an

additional two  level reduction  for his  mitigating role  in the

overall  conspiracy,  the   applicable  offense  level  was   15,

corresponding to a sentencing range of 21-27 months.

          On  August  5,  1993,  the  district  court   sentenced

Weinstein.     The  court  departed  from  the  applicable  money

laundering  Guideline   range  because   the  court  found   that

Weinstein's  behavior  essentially  constituted  bookmaking,  and

therefore  fell  outside of  the "heartland"  of a  typical money

laundering  offense.    The   court  instead  adopted  a  reduced

sentencing  range  based  on    2E3.1, which  is  applicable  for

operating an  illegal gambling business, and which  sets forth an

offense level of 12 and a corresponding Guideline range of  12 to

18  months'  incarceration  for  an individual  with  a  Criminal

History Category of II.  The court then sentenced Weinstein to 12

months' incarceration.

                      B.  STANDARD OF REVIEW

                    

3   The sentencing  grouping rules  operate  the same  way as  in
LeBlanc's case to arrive at this conclusion.  See supra note 1.
                                                       

                               -8-

          The  first   issue  that  we  must   determine  is  the

appropriate standard  of review on appeal.   Generally, appellate

review of a sentencing decision involves three questions:  1) are

the departure related circumstances of a sort that the sentencing

court  can appropriately rely  upon to justify  its departure; 2)

does  the  record  support a  finding  of  fact  establishing the

existence of such circumstances;  and 3) does the  record support

the  "direction  and degree"  of  departure.    United States  v.
                                                             

M ndez-Col n,  No. 93-1346,  slip. op.  at 3  (1st Cir.  Jan. 19,
            

1994);  United  States v.  D az-Villafa e, 874 F.2d  43, 49  (1st
                                         

Cir.), cert. denied,  493 U.S. 862 (1989).   In United States  v.
                                                             

Rivera,  994 F.2d  942  (1st Cir.  1993),  we elaborated  on  the
      

appropriate  standard of review which  we would employ to address

certain sentencing departure issues.

            Plenary review is . . . appropriate where
            the appellate court, in  deciding whether
            the  allegedly special  circumstances are
            of a "kind"  that permits departure, will
            have  to  perform  the  "quintessentially
            legal" function . .  . of interpreting  a
            set  of  words,  those of  an  individual
            guideline, in light of their intention or
            purpose,  in order to identify the nature
            of the guideline's "heartland" (to see if
            the allegedly  special circumstance falls
            within it).

Id.  at 951 (citations omitted).  Thus, where departure decisions
  

"reflect a determination of the  purpose of, or an interpretation

of the language  in, a  guideline or statute,  plenary review  is

appropriate."  United  States v. Rosales, No.  92-1732, slip. op.
                                        

at 16  (1st Cir. March  31, 1994)  (internal quotations  omitted)

(citation omitted).

                               -9-

          The district  court issued  a Sentencing  Memorandum to

support its downward  departure in United States  v. LeBlanc, 825
                                                            

F. Supp.  422  (D. Mass.  1993).   We  quote this  memorandum  at

length,  in order to have  a complete understanding  of the basis

for the district court's decision:

            Congress has empowered district courts to
            impose a sentence  outside the  guideline
            range  when the  court finds  "that there
            exists   an  aggravating   or  mitigating
            circumstance of  a kind,  or to  a degree
            not  adequately taken  into consideration
            by    the   Sentencing    Commission   in
            formulating the guidelines."  l8 U.S.C.  
            3553(b);  U.S.S.G.    5K2.0.    This case
            presents  just such  a circumstance.   It
            involves behavior that  falls outside  of
            the  "heartland"  of   a  typical   money
            laundering offense. . . . 

            Here,  LeBlanc  acted  as   a  bookmaking
            agent,   an   offense   for   which   the
            guidelines set forth a base offense level
            of 12.  It is difficult for this court to
            conceive of gambling  being conducted  or
            transacted  in  any  form  other  than by
            money or monetary   instruments.  Yet, by
            participating in conduct which  calls for
            a base offense  level of 12, LeBlanc  was
            charged  with   money  laundering,  which
            calls  for an offense  level of 17, given
            LeBlanc's  acceptance of  responsibility.
            In essence, LeBlanc finds  himself facing
            a sentence far in excess of that which is
            commensurate with his actual conduct.

            While  LeBlanc's conduct  may technically
            constitute money laundering -- an offense
            to which he has pled guilty -- this court
            finds that sentencing him pursuant to the
            strictures   of   the  money   laundering
            statute  would  present  an inequity  not
            adequately  taken  into consideration  by
            the  Sentencing Commission.  See [Rivera,
                                                    
            994 F.2d at 947-49]; cf. United States v.
                                                  
            Edgmon, 952   F.2d 1206, 1214  (10th Cir.
                  
            1991)("Congress aimed the crime  of money
            laundering  at  conduct  that follows  in

                               -10-

            time  the underlying crime rather than to
            afford an alternative means  of punishing
            the     prior     'specified     unlawful
            activity'"),  cert.   denied,  112  S.Ct.
                                        
            3037.   LeBlanc took checks  from bettors
            and  either  negotiated  them himself  or
            turned  them  over  to  his  supervisors,
            Dickhaut  and Byrne.    When  all of  the
            verbiage    and   terminology    in   the
            indictment are stripped away, that is the
            sum  and  substance  of the  conduct  for
            which he was charged.   Accordingly, this
            court  finds  that  a  5  level  downward
            departure is warranted,  resulting in  an
            offense level of 12.

United States v. LeBlanc, 825 F. Supp. at 423-24.
                        

          In United States v. Weinstein, 828 F. Supp. 3 (D. Mass.
                                       

1993), the court, citing LeBlanc, based its downward departure on
                                

an identical  rationale.  The  court reiterated  its belief  that

because  it  could not  conceive of  a  manner in  which gambling

operations  could be  conducted  without the  exchange of  money,

application of the money  laundering statute to someone who  is a

bookmaker would  always result  in a simultaneous  application of

the money  laundering statutes,  which would be  an impermissible

"alternative means  of  punishing the  prior  specified  unlawful

activity."  Weinstein, 828 F. Supp. at 5.
                     

          In  both  cases, the  sentencing  court suggested  that

money  laundering offenses  that  stem from  the prior  specified

unlawful activity of operating  an illegal gambling business fell

outside of  the "heartland"  of the money  laundering guidelines.

The court's decisions were not factually tied to the specifics of

the  cases of LeBlanc or  Weinstein.  Rather,  the decisions were

categorical, legal  conclusions centered on the  intent and scope

                               -11-

of  the money laundering statutes, and thereby, the nature of the

applicable  sentencing   guideline's  heartland.    This   was  a

quintessentially legal question, and  as such, subject to plenary

review.

                    C.  THE DEPARTURE DECISION

          We   first  review   the  district   court's  departure

decisions    to    determine   whether    the   departure-related

circumstances it relied upon to depart downward were appropriate,

and  more  specifically,  whether  the  conduct  of  LeBlanc  and

Weinstein  fell outside  of  the  heartland  of a  typical  money

laundering  case.    The   Government  contends  that  the  court

construed the  scope of 18 U.S.C.    1956 much too  narrowly.  It

claims that the actions of LeBlanc and Weinstein ran afoul of the

money  laundering  statute,  and  both so  admitted  by  pleading

guilty.   Therefore, the Government argues, the court should have

sentenced them pursuant to the money laundering guideline.

          LeBlanc and Weinstein contend that  the court correctly

concluded  that their  cases  were atypical  of  the usual  money

laundering  case,  and  that  their illegal  conduct  was  simply

gambling.   Thus,  LeBlanc  and Weinstein  argue  that the  court

properly  found that  it  would be  inequitable to  sentence them

pursuant  to  the  money  laundering  guideline,  and  rightfully

departed downward.

          To determine the  applicable sentence,  a court  should

first determine the offense  guideline section most applicable to

the  offense of conviction, which is "the offense conduct charged

                               -12-

in  the count of the indictment .  . . of which the defendant was

convicted."  U.S.S.G.    1B1.2.  Both LeBlanc and  Weinstein pled

guilty to violations of 18 U.S.C.    1956 and 1957, as well as 31

U.S.C.    5324.  For sentencing purposes, the operative counts in

the indictments  charged that  LeBlanc and Weinstein  violated 18

U.S.C.   1956(a)(1)(B)(i) and (ii).4

          To  determine   the  nature  of  the   crime  of  money

laundering, and  therefore the  scope of the  "heartland" of  the

corresponding  sentencing guideline,  we  look, in  part, to  the

language of  the statute  and the legislative  history associated

with it.  18 U.S.C.   1956 provides in pertinent part:

            (a)(1) Whoever, knowing that the property
            involved   in  a   financial  transaction
            represents the proceeds  of some form  of
            unlawful  activity, conducts  or attempts
            to conduct such  a financial  transaction
            which  in fact  involves the  proceeds of
            specified unlawful activity -

            (B)  knowing  that  the   transaction  is
            designed in whole or in part -

               (i) to conceal or disguise the nature,
            the location, the source,  the ownership,
            or   the  control  of   the  proceeds  of
            specified unlawful activity; or

               (ii) to avoid a  transaction reporting
            requirement under State or Federal law, 

            shall be  sentenced to  a fine .  . .  or

                    

4  This is so  because the counts to which LeBlanc  and Weinstein
pled guilty  involved substantially the same  harm, and therefore
the  counts were  grouped together.   U.S.S.G.    3D1.2(d).   The
sentencing grouping  rules mandate that a  defendant be sentenced
pursuant to the guideline section with the highest offense level.
U.S.S.G.   3D1.3.  In this case, the applicable guideline section
is U.S.S.G.  2S1.1(a)(2), which establishes a  base offense level
for laundering monetary instruments.

                               -13-

            imprisonment . . . or both.

This  statute was enacted as part of the Money Laundering Control

Act of 1986.  See S. Rep.  No. 433, 99th Cong., 2d. Sess. (1986);
                 

H.R.  Rep. No.  855, 99th Cong.,  2d. Sess.,  pt. 1  (1986).  The

legislative   history  associated  with     1956  indicates  that

Congress  designed the statute to  fill "the gap  in the criminal

law with respect to  the post-crime hiding of  ill-gotten gains,"

and intended  money laundering  to be a  separate crime  distinct

from the  underlying offense  that generated  the money.   United
                                                                 

States v. Johnson, 971  F.2d 562, 569 (10th Cir.  1992) (citation
                 

omitted);  United States  v.  Edgmon, 952  F.2d  1206 (10th  Cir.
                                    

1991), cert.  denied, 112 S. Ct.  3037 (1992);  United States  v.
                                                             

Lovett, 964 F.2d 1029  (10th Cir.), cert. denied, 113  S. Ct. 169
                                                

(1992); see also United States v. Stavroulakis, 952 F.2d 686, 691
                                              

(2d  Cir.), cert. denied, 112 S. Ct. 1982 (1992).  Congress aimed
                        

   1956 "at  conduct that  follows in  time the  underlying crime

rather than to afford an alternative means of punishing the prior

'specified unlawful activity.'"  Johnson, 971 F.2d at 569.
                                        

          As  noted by  the district  court, the  "classic" money

laundering  case  is  where  "a drug  trafficker  collects  large

amounts of cash from  drug sales and, acting with  the complicity

of  a banker or other person in a financial institution, deposits

the  drug proceeds  in a  bank  under the  guise of  conducting a

legitimate business transaction."   United  States v.  Weinstein,
                                                                

828 F. Supp. at 5 (quoting Johnson, 971 F.2d at 568).   The Money
                                  

Laundering Control Act, however,  "prohibits a much broader range

                               -14-

of conduct than just the 'classic' example of money  laundering."

Johnson,  971  F.2d at  569.   The  language of  the  statute, in
       

conjunction with the definitions provided in 18 U.S.C.   1956(c),

indicates that Congress  intended to criminalize a broad array of

transactions  designed  to  facilitate  numerous  federal crimes,

including illegal gambling.  See generally Stavroulakis, 952 F.2d
                                                       

at  691 ("Section 1956 creates the crime of money laundering, and

it takes dead  aim at the attempt to launder dirty  money . . . .

Congress has  made clear  that concealing  the source  of illegal

gambling proceeds is just as detrimental to society as concealing

the source of  narcotics money."); United States  v. Skinner, 946
                                                            

F.2d 176, 177 (2d Cir. 1991).5

          There  is little  question  that the  conduct to  which

LeBlanc and Weinstein pled guilty not only comes within the plain

language  of 18  U.S.C.    1956,  but  also was  within  the full

contemplation  of   Congress  when   it  enacted   that  statute.

Weinstein  asked gamblers  to structure  their checks  in amounts

less than $10,000;  he asked  that the gamblers  make the  checks

payable to fictitious payees; he received the checks; and he then

negotiated the  checks.   LeBlanc received and  negotiated checks

obtained from  illegal gambling  activities, which had  been made

payable to fictitious payees.

          The  district  court  suggests  that  all  LeBlanc  and

Weinstein  are really guilty of  is gambling, and  that the money

                    

5  The  language of U.S.S.G.    2S1.1 and  the associated  policy
statements are  not inconsistent with this  interpretation of the
scope of the crime of money laundering.

                               -15-

laundering statutes were improperly used as an alternative method

to punish this underlying  offense.  As a preliminary  matter, if

the  court did not believe that LeBlanc and Weinstein were guilty

of  money laundering,  the court  should have  refused  to accept

their guilty pleas to those offenses for lack of a factual basis.

Moreover,  LeBlanc and  Weinstein did  more than  conduct illegal

gambling businesses.  Both took specific  and concrete actions to

launder  the  proceeds  from  these  gambling  activities.    The

critical financial  transactions occurred after the  gamblers had

placed  and lost  their wagers with  LeBlanc and  Weinstein, when

they then negotiated the  checks.  The court's recharacterization

of the actual conduct  of LeBlanc and Weinstein ignores  the fact

that  they both  pled  guilty  to,  and  were  guilty  of,  money

laundering,  a distinct,  successor offense.   See,  e.g., United
                                                                 

States v. Morris, 18 F.3d 562, 569 (8th Cir. 1994).  
                

          Put  simply,   the  court  failed  to   recognize  that

defendants  had  committed two  offenses;  gambling,  followed by

money laundering.  Its statement that  it was "difficult . . . to

conceive of gambling  being conducted or  transacted in any  form

other than by money or monetary instruments," and that sentencing

for money  laundering "would present  an inequity,"   misses  the

point.  There  was no inequity.   Leblanc  and Weinstein did  not

have to act in a manner that patently violated 18 U.S.C.   1956.

          The court  erred by construing  the scope of  the money

laundering  statute,  and  the  heartland  of   its  commensurate

sentencing  guideline too narrowly.   The conduct  of LeBlanc and

                               -16-

Weinstein  did, in fact, fall  within the "heartland"  of a money

laundering  case, and therefore their conduct was not of a "kind"

that properly justified a  downward departure.  We find  that the

court erred by departing downward, and that LeBlanc and Weinstein

should have  been  sentenced pursuant  to the  strictures of  the

money laundering guideline.

                               -17-

                      II.  LEBLANC'S APPEAL

                          A.  BACKGROUND

          At sentencing, LeBlanc  moved for a downward  departure

from the Sentencing Guidelines based upon his physical condition.

LeBlanc suffered his first heart attack in 1981 at the age of 34.

After  pleading  guilty  in  the  instant  case,  while  awaiting

sentencing, LeBlanc suffered a  second heart attack on  March 18,

1993.

          Prior  to   the  first  disposition   hearing,  LeBlanc

submitted a medical report  to the court from his  own physician,

Dr. Solomon A. Gabbay.  The report stated that "Mr. LeBlanc has a

[known] history of coronary artery disease" and that "Mr. LeBlanc

will probably require long term therapy for his cardiac history."

Dr. Gabbay concluded:  "[a]t this  point in time  I would  expect

[LeBlanc] to require medicine for the rest of his life."

          The  initial disposition  hearing was  held on  May 20,

1993.   The court then continued  the hearing and ordered that an

independent cardiologist examine  LeBlanc, at Government expense,

and report the  medical findings  to the court  to determine  the

extent and seriousness of LeBlanc's cardiac problems.

          A second disposition hearing was held on June 25, 1993.

Pursuant to the court's previous order, LeBlanc had been examined

by Dr. Guy L. Reed on June 10, 1993.  Dr. Reed issued a report in

which he stated  that LeBlanc  had coronary artery  disease.   He

concluded that LeBlanc's "heart  disease is likely to  be largely

controlled with medication but  he is also at risk  for recurrent

                               -18-

myocardial infarction.   Because  of his coronary  artery disease

and  hypercholesterolemia,  he  will  continue  to  need  ongoing

medical care indefinitely with check-ups at 4-6 month intervals."

          After reviewing Dr. Reed's report, the court refused to

grant  LeBlanc a downward departure based on health reasons.  The

court stated:

            I  don't read  this report  as  being one
            that  would  even  permit me,  let  alone
            persuade me, to go beyond the guidelines.

            Now,  I  would  put it  in  those  terms;
            because,  if  I am  wrong,  then you  can
            appeal that.  In other words, I determine
            that this report, which we will mark as a
            Court Exhibit,  does  not permit  me,  or
            there is nothing  here that would  permit
            me  to go below the guidelines.   If I am
            wrong as a matter  of law, you can appeal
            it, and you can come back and we will re-
            sentence him.

                    B.  THE DEPARTURE DECISION

          As a general rule, a  district court's refusal to grant

a  downward  departure  is  not  appealable.    United States  v.
                                                             

Lombardi, 5  F.3d 568,  571 (1st Cir.  1993);   United States  v.
                                                             

Hilton,  946  F.2d 955,  957 (1st  Cir.  1991); United  States v.
                                                              

Romolo,  937 F.2d 20, 22 (1st Cir. 1991).  Appellate jurisdiction
      

does attach, however, where  the sentencing court's decision "not

to depart is based on the court's mistaken view that it lacks the

legal  authority to consider a  departure."  Hilton,  946 F.2d at
                                                   

957 (quoting Romolo,  937 F.2d at  22).  Thus,  in order to  have
                   

jurisdiction,   we  must   conclude  that   the   district  court

misunderstood  its  authority  to depart  under  the  guidelines.

United States  v. DiIorio, 948 F.2d 1, 8 (1st  Cir. 1991).  If we
                         

                               -19-

find that the court  understood its power to depart,  but refused

to  exercise that  power, we  lack jurisdiction  to consider  the

appeal.   Id.    In fact,  the  district court  acknowledged  our
            

ability  to review  its decision  when the  court stated  that it

lacked the legal authority to depart based upon the circumstances

presented to it, and that LeBlanc could appeal this determination

if the court was wrong as a matter of law.

          We  believe that  based upon  the record,  the district

court  fully   understood  its   ability  to  depart   under  the

guidelines, but found that it was unable to do so under the facts

of  this  case.    LeBlanc   contends  that  the  district  court

erroneously concluded  that it was "forbidden"  by the guidelines

to consider his heart condition as a basis for departure.   We do

not agree.  At the first disposition hearing, LeBlanc moved for a

downward  departure based  on his  heart condition  and presented

supporting evidence from  his physician, Dr.  Gabbay.  The  court

then  continued the  hearing and  ordered the  parties to  have a

court  appointed  physician  examine  LeBlanc  to  determine  the

severity of his heart condition.   If the court had believed that

a downward  departure was forbidden,  it would not  have required

the parties to  engage in  the useless exercise  of obtaining  an

independent physician's opinion.   Thus, the court considered the

possibility that  LeBlanc's heart condition warranted  a downward

departure,  but  after  reviewing   the  facts,  found  that  his

condition was not serious enough to justify such a departure.

          The  court correctly  understood  that a  departure for

                               -20-

medical reasons was "discouraged"  by the guidelines.  Departures

based  upon health  problems are  "discouraged" and  can only  be

justified if the medical problems are "present in unusual kind or

degree".   Rivera, 994 F.2d at  948.  U.S.S.G.    5H1.4 states in
                 

pertinent part:

            Physical    condition   or    appearance,
            including  physique,  is  not  ordinarily
            relevant   in   determining   whether   a
            sentence should be outside the applicable
            guideline    range.        However,    an
            extraordinary physical  impairment may be
            a reason  to impose a sentence  below the
            applicable guideline range . . . .

          Based upon the facts presented to it at sentencing, the

district  court did  not believe  that LeBlanc's  heart condition

presented an extraordinary physical impairment within the meaning

of U.S.S.G.    5H1.4 that would permit the court  to depart, much

less persuade it to do so, under the Guidelines.  LeBlanc suffers

from a  heart condition.   Both Dr.  Gabbay and Dr.  Reed stated,

however,  that LeBlanc's  heart condition  could be  treated with

medicine.  There  was no indication in either physicians' medical

report  that LeBlanc's life  would be threatened  or shortened by

virtue  of  being  incarcerated.    Additionally,  there  was  no

evidence that the Bureau of Prisons would be unable to adequately

accommodate LeBlanc's medical needs.

          There was  nothing in  the record which  indicated that

the  sentencing  court was  mistaken  about its  power  to depart

downward.    Rather, the  court  fully  understood its  departure

ability,  but concluded  that  U.S.S.G.    5H1.4  simply did  not

permit departure under  the circumstances.   This was a  judgment

                               -21-

call  which was supported  by the record.   As such,  the court's

departure  decision is  not  reviewable on  appeal.   See,  e.g.,
                                                                

DiIorio, 948 F.2d at 9.
       

          For   the  foregoing  reasons,   with  respect  to  the
                                                                 

Government's  appeals, we  vacate  the sentences  of LeBlanc  and
                                                                 

Weinstein,  and  remand  the  case  to  the  district  court  for
                                                                 

resentencing.  With respect to LeBlanc's cross-appeal, the appeal
                                                                 

is dismissed for want of appellate jurisdiction.
                                               

                               -22-
