                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 92-1798

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                     ROBERT F. CARROZZA,

                    Defendant, Appellant.

                                         

No. 92-1868

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                    RAYMOND J. PATRIARCA,

                    Defendant, Appellant.

                                         

No. 92-2213

                  UNITED STATES OF AMERICA,

                          Appellant,

                              v.

                    RAYMOND J. PATRIARCA,

                     Defendant, Appellee.

                                         

        APPEALS FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Mark L. Wolf, U.S. District Judge]
                                                  

                                         

                            Before

                    Boudin, Circuit Judge,
                                         

               Campbell, Senior Circuit Judge,
                                             

                  and Stahl, Circuit Judge.
                                          

                                         

Martin  G. Weinberg with  whom Oteri,  Weinberg &amp;  Lawson, John F.
                                                                  
Cicilline, Kimberly Homan  and Sheketoff  &amp; Homan were  on briefs  for
                                             
Raymond J. Patriarca.
James L.  Sultan  with  whom  Rankin &amp;  Sultan  was on  brief  for
                                              
Robert F. Carrozza.
James  D. Herbert,  Assistant United  States Attorney,  with  whom
                 
A. John   Pappalardo,  United   States  Attorney,   Jeffrey  Auerhahn,
                                                                 
Assistant  United States  Attorney, and  Gregg L.  Sullivan, Assistant
                                                       
United States Attorney, were on briefs for the United States.

                                         

                      September 16, 1993
                                         

          CAMPBELL,  Senior  Circuit   Judge.    Raymond   J.
                                            

Patriarca pled guilty  to one count of conspiring  to violate

the  Racketeering Influenced  and  Corrupt Organizations  Act

("RICO"), 18  U.S.C.   1962(d), one count  of violating RICO,

18  U.S.C.   1962(c), four counts of interstate travel in aid

of racketeering, 18 U.S.C.   1952 (the "Travel Act"), and one

count of conspiring to violate the Travel Act. 

          He  was  sentenced by  the  United  States District

Court for the District  of Massachusetts to a prison  term of

97 months, three years of supervised release, a $50,000 fine,

$122,344  costs  of   incarceration,  and  $3,954   costs  of

supervision.  Pursuant to 18 U.S.C.   3742(b), the government

appeals  from the  district  court's  determination that  the

relevant conduct for sentencing purposes in this RICO case is

limited to  just the predicate Travel  Act violations charged

against Patriarca  and  conduct relating  directly  to  those

charged  predicates.   Patriarca  appeals from  the  district

court's upward  departure under U.S.S.G.   4A1.3 and from the

district court's imposition of the costs of incarceration and

supervision under U.S.S.G.   5E1.2(i).

          Robert  F.   Carrozza  appeals  from   a  228-month

sentence imposed by the district court after Carrozza pleaded

guilty   to  49  counts   of  racketeering-related  offenses.

Carrozza  argues  that  the  district  court's  decision   to

                             -3-

"assume"  that  his base  offense  level  should be  adjusted

upwards for his role in the offense constituted plain error.

I.  Patriarca's Sentence
                        

     A.  Background
                   

          Count One of the  indictment charged Patriarca  and

seven   codefendants  with   participation   in  a   criminal

conspiracy to violate  the RICO statute.   Count Two  charged

the same defendants with a substantive violation  of the RICO

statute.     The   remaining  63   counts   charged   related

racketeering acts involving  different defendants,  including

   in Count 30    a conspiracy to violate the Travel Act.  

          The RICO  charges alleged that the Patriarca Family

had committed  illegal activities over a period  of 14 years.

They  identified the  defendants as  members of  a nationwide

criminal organization known as  La Cosa Nostra, and described

Patriarca's  role, after July 1984,  as the boss and ultimate

supervisor of the Patriarca Family.  The  RICO counts alleged

that  the Patriarca  Family,  named as  the RICO  enterprise,

acted  in  conformity  with  the  rules of  La  Cosa  Nostra,

including the  requirement that members commit  murder at the

direction of  their superiors.   It was further  alleged that

members of  the Patriarca Family were required  to obey their

superiors  and  commit  criminal  acts  at  their  direction,

including  murder.   Members  of  the  Patriarca Family  were

allegedlyrequiredto
                  sharetheirillegalprofitswiththeirsuperiors.

                             -4-

          The  indictment alleged  that the  Patriarca Family

was in  the  business of  extortion,  narcotics  trafficking,

loansharking, gambling,  and murder.   The indictment charged

the  commission of  a total of  68 separate,  predicate acts,

most  of  them  by  defendants other  than  Patriarca.    The

predicate racketeering acts in which Patriarca was personally

named were five violations of (and conspiracy to violate) the

Travel  Act, four of  which were also  charged as substantive

violations against Patriarca in Counts 31, 36, 38 and 39.

          Prior to  Patriarca's entry  of a guilty  plea, the

government  informed the  court and  Patriarca that  it would

seek to  include specific acts of  relevant conduct, pursuant

to U.S.S.G.   1B1.3,  in determining Patriarca's base offense

level, and  would further seek upward  departures pursuant to

U.S.S.G.    4A1.3  and   5K2.0.   As  an example  of relevant

conduct, the government then cited Patriarca's involvement in

the narcotics trafficking of Patriarca's associate, Salvatore

Michael Caruana.   As  an example  of  conduct justifying  an

upward departure, the government  cited the murder of Vincent

James Limoli,  which was  charged against one  of Patriarca's

codefendants.

          On December 3, 1991, Patriarca  pled guilty without

having entered  into any agreement  with the government.   In

the sentencing proceedings that ensued, the government  asked

the court  to consider  seven instances of  relevant conduct,

                             -5-

along with the  charged conduct,  in determining  Patriarca's

base  offense level for  his RICO offenses.   These instances

were (1)  Patriarca's involvement in the  drug trafficking of

Caruana;  (2)  Patriarca's efforts  to  harbor  Caruana as  a

fugitive;  (3)  the  murder  of Limoli;  (4)  the  murder  of

Theodore Berns,  which was  committed by  Caruana purportedly

because  Berns  was involved  with  Caruana's  wife; (5)  the

narcotics  activities  charged  against   codefendant  Robert

Carrozza; (6) Patriarca's alleged authorization of an attempt

to murder Vincent Ferrara;  and (7) the harboring of  La Cosa

Nostra member, Alphonse Persico, while he was a fugitive from

justice.    Of  these  acts,   only  the  Limoli  murder  and

Carrozza's  drug  trafficking  had   been  mentioned  in  the

indictment, these  two acts having been  charged as predicate

acts   against   Patriarca's   codefendants  (not   Patriarca

himself).   The  government acknowledges  that Patriarca  had

direct  personal   involvement  only  in   the  Caruana  drug

trafficking  and the harboring of Caruana as a fugitive.  But

it  also argues  that  all seven  activities were  reasonably

foreseeable to  Patriarca and  were committed during,  and in

furtherance  of,  the  RICO conspiracy  after  Patriarca  had

joined it as its chief.

          The  government  asserted  that  holding  Patriarca

responsible for the Limoli or the Berns murder would increase

his base offense level to 43, but that this level should then

                             -6-

be  reduced  by three  levels  because  Patriarca's role  was

minimal or minor under U.S.S.G.   3B1.2.  The guideline range

for an offense level of 40 and Criminal History Category I is

292-365  months  in prison.    The  government recommended  a

sentence of 292 months.

          After numerous evidentiary  hearings, the  district

court  announced its  decision  to sentence  Patriarca to  97

months imprisonment.  This was  an upward departure from  the

court's  calculated guideline range of 63 to 78 months.1  The

court  concluded that relevant conduct in a RICO case was, as

a matter  of  law, limited  to  the specific  predicate  acts

charged  against the  defendant (here,  as to  Patriarca, the

Travel Act  violations) and  conduct relating to  the charged

predicates.  The  court observed that the  base offense level

for  RICO  is  the  greater  of  19  or  "the  offense  level

applicable   to   the   underlying  racketeering   activity."

U.S.S.G.   2E1.1(a).  Because   2E1.1 specifies more than one

base  offense  level,  the  court  determined  that     1B1.3

requires the proper  base offense  to be  ascertained by  the

inclusion of  relevant conduct.   The core  question, in  the

court's view,  was whether "underlying racketeering activity"

within the  meaning of     2E1.1(a)(2) referred  only to  the

predicate   racketeering   acts  charged   against  Patriarca

                    

1.  The  district court's extensive  sentencing memorandum is
published at 807 F. Supp. 165 (D. Mass. 1992).

                             -7-

himself, or whether it  also embraced other racketeering acts

including those of Patriarca's RICO  coconspirators committed

in the course of the RICO conspiracy.

          In  opting for  the former construction,  the court

relied  upon  three principles  it felt  were  key:   (1) the

guidelines are  primarily a "charge offense"  system; (2) the

guidelines  are  generally intended  to  duplicate nationwide

past  practices;  and  (3)  the guidelines  are  intended  to

establish a sentencing system which is  both administratively

workable and fair.  Regarding the first, the court noted that

none   of  the  seven  instances  of  conduct  cited  by  the

government had been charged  against Patriarca personally  in

the indictment.   As to  the second reason,  the court  noted

that there are no reported  pre-guideline RICO cases in which

a  defendant  was sentenced  and  punished  for an  uncharged

murder.  With respect to the third, the court stated that the

government's position was administratively unwieldy: weeks or

months of evidentiary hearings could be required to decide if

a  defendant  committed   the  uncharged  relevant   conduct.

Finally,  the  court  was   concerned  about  the  procedural

fairness  of punishing  a defendant  for an  uncharged murder

without  indictment,  trial  by  jury,  and  proof  beyond  a

reasonable doubt.

          The   court   reasoned   that   adoption   of   the

government's  position  would  raise  serious  constitutional

                             -8-

questions  which  the district  court's  interpretation would

avoid.   Treating  the Limoli  or  Berns murder  as  relevant

conduct would, the court believed, have the effect of raising

the  maximum penalty for the RICO violations from 20 years to

life imprisonment.   The RICO penalty provision,  18 U.S.C.  

1963(a),  provides for a maximum sentence  of 20 years unless

"the  RICO violation  is based  on racketeering  activity for

which  the  maximum penalty  includes life  imprisonment," in

which  case the  maximum  sentence is  life.   The  guideline

penalty  for murder,  which is  a level  43 offense,  is life

imprisonment.     Because  the  district  court,  unlike  the

government, thought  a three-level  reduction for a  minor or

minimal role in the offense was unlikely, the court  reasoned

that  if Patriarca  was held  responsible for  the Limoli  or

Berns   murders,   his  probable   sentence  would   be  life

imprisonment.   In the court's view,  therefore, treating the

murders as relevant conduct (thereby increasing the guideline

range  from  63-78  months to  life)  would  violate  the due

process clause of the constitution by permitting the relevant

conduct determination "to be a tail which wags the dog of the

substantive offense."  McMillan v. Pennsylvania, 477 U.S. 79,
                                               

88 (1986).  

          The government appeals from this determination.

     B.  The Government's Appeal:  Relevant Conduct
                                                   

                             -9-

          "The legal determination as to the proper interplay

among  related  guidelines  is  subject  to plenary  review."

United  States v. Schultz, 970 F.2d 960, 962 (1st Cir. 1992),
                         

cert. denied, 113 S.  Ct. 1020 (1993).  Therefore,  we review
            

de  novo the  district  court's application  of the  relevant

conduct guideline,  U.S.S.G.   1B1.3, to  the RICO guideline,

U.S.S.G.    2E1.1.  We conclude that the district court erred

when it limited relevant conduct to conduct in furtherance of

the predicate acts charged  against Patriarca.  We hold  that

relevant  conduct  in  a   RICO  case  includes  all  conduct

reasonably   foreseeable  to  the   particular  defendant  in

furtherance of the RICO enterprise to which he belongs.

          We agree  with the government that  the language of

the relevant  conduct section,   1B1.32,  and its application

                    

2.  The  relevant  conduct   guideline,  in  pertinent  part,
provides the following:

     Unless  otherwise specified,  (i) the  base offense
     level where  the guideline specifies more  than one
     base   offense   level,   (ii)   specific   offense
     characteristics  and  (iii)  cross   references  in
     Chapter Two, and (iv) adjustments in Chapter Three,
     shall be determined on the basis of the following:

     (1)(A)    all acts and omissions  committed, aided,
               abetted,  counseled,  commanded, induced,
               procured,  or  willfully  caused  by  the
               defendant; and

        (B)    in  the  case  of  a  jointly  undertaken
               criminal   activity  (a   criminal  plan,
               scheme,    endeavor,    or     enterprise
               undertaken  by  the defendant  in concert
               with others, whether or not charged as  a
               conspiracy),  all  reasonably foreseeable

                             -10-

to the RICO guideline,   2E1.1, are clear, and  hence must be

applied.   Section 1B1.3 calls for  determining the following

guideline  elements  on  the  basis of  relevant  conduct  as

defined:  (1) the  base  offense level,  where the  guideline

specifies  more than  one  base offense  level, (2)  specific

offense characteristics, (3) cross references in Chapter Two,

and  (4) adjustments  in Chapter  3.   The RICO  guideline,  

2E1.13,  specifies  more   than  one   base  offense   level,

                    

               acts   and   omissions   of   others   in
               furtherance  of  the  jointly  undertaken
               criminal activity,

          that occurred  during  the commission  of  the
          offense of conviction, in preparation for that
          offense,  or  in the  course of  attempting to
          avoid  detection  or  responsibility for  that
          offense . . . .

U.S.S.G.   1B1.3(a)(1).

     The  relevant  conduct  guideline  quoted  here  is  the
amended  version  of     1B1.3,  which  became  effective  on
November 1, 1992, after Patriarca was sentenced.  Because the
1992 amendments to   1B1.3  only clarify the previous version
of the guideline,  we may  refer to the  later version.   See
                                                             
1B1.11(b)(2)   ("the   court   shall    consider   subsequent
amendments, to the extent that such amendments are clarifying
rather than substantive changes").

3.  The RICO guideline provides the following:

       2E1.1.  Unlawful   Conduct   Relating   to   Racketeer
                                                             
               Influenced and Corrupt Organizations
                                                   

          (a)  Base Offense Level (Apply the greater):

               (1)  19; or
                    19

               (2)  the  offense  level  applicable   to  the
                    underlying racketeering activity.

                             -11-

including a cross reference  to "the offense level applicable

to the underlying racketeering  activity."  See United States
                                                             

v. Masters, 978 F.2d  281, 284 (7th Cir. 1992)  (reference to
          

"underlying  racketeering  activity" in     2E1.1(a)(2) is  a

cross  reference),  cert. denied,  113  S.  Ct. 2333  (1993);
                                

U.S.S.G.   1B1.5, application note 1 (cross references may be

general,  such  as  "to  the guideline  for  the  'underlying

offense'").   Therefore,    1B1.3  requires the  base offense

level for   2E1.1 to  be determined on the basis of  relevant

conduct as that term is described in   1B1.3(a)(1).

          Section 1B1.3 states that "in the case of a jointly

undertaken criminal activity," relevant conduct includes "all

reasonably  foreseeable  acts  and  omissions  of  others  in

furtherance of  the  jointly undertaken  criminal  activity."

U.S.S.G.    1B1.3(a)(1)(B).  This is often referred to as the

accomplice attribution element of relevant conduct.  "Jointly

undertaken criminal activity" is defined in    1B1.3(a)(1)(B)

as  "a  criminal   plan,  scheme,  endeavor,   or  enterprise
                                                             

undertaken by  the defendant in concert  with others, whether
                                                             

or not  charged  as a  conspiracy."   Id.  (emphasis  added).
                                         

Here,  the RICO enterprise     the Patriarca Family     was a

"jointly undertaken criminal  activity."  Thus, Patriarca  is

potentially  liable  for  the  foreseeable  criminal acts  of

                    

U.S.S.G.   2E1.1.

                             -12-

others in furtherance of  that enterprise even though  he did

not personally participate in them.

          The  application  notes  expand  on  the  role   of

relevant conduct in the  case of criminal activity undertaken

in concert with  others.  We quote from application note 2 to

   1B1.3 at  length because  of the  guidance it  provides to

courts in determining when a defendant is responsible for the

conduct of others under the accomplice attribution element of

the relevant conduct guideline:

     In the  case of a jointly  undertaken criminal activity,
     subsection  (a)(1)(B)  provides   that  a  defendant  is
     accountable  for  the conduct  (acts  and omissions)  of
     others that was both:

     (i)  in  furtherance  of  the   jointly  undertaken
          criminal activity; and
     (ii) reasonably foreseeable in connection with that
          criminal activity.

     Because a  count may be worded  broadly and include
     the conduct  of many participants over  a period of
     time,  the scope of  the criminal  activity jointly
     undertaken   by   the   defendant   (the   "jointly
     undertaken criminal activity")  is not  necessarily
     the same as the scope of the entire conspiracy, and
     hence  relevant conduct is not necessarily the same
     for every  participant.  In order  to determine the
     defendant's  accountability  for  the   conduct  of
     others under  subsection (a)(1)(B), the  court must
     first determine the scope  of the criminal activity
     the   particular   defendant   agreed  to   jointly
     undertake (i.e., the scope  of the specific conduct
                    
     and   objectives   embraced   by  the   defendant's
     agreement).  The conduct of others that was both in
     furtherance  of,  and  reasonably   foreseeable  in
     connection  with,  the  criminal  activity  jointly
     undertaken  by  the defendant  is  relevant conduct
     under this  provision.  The conduct  of others that
     was  not in  furtherance of  the criminal  activity
     jointly undertaken  by the  defendant,  or was  not
     reasonably  foreseeable  in  connection  with  that

                             -13-

     criminal  activity, is  not relevant  conduct under
     this provision.

     In determining  the scope of the  criminal activity
     that  the particular  defendant  agreed to  jointly
     undertake (i.e., the scope  of the specific conduct
                    
     and   objectives   embraced   by  the   defendant's
     agreement),  the court  may  consider any  explicit
     agreement  or  implicit  agreement fairly  inferred
     from the conduct of the defendant and others.

     Note that the criminal activity that the  defendant
     agreed  to  jointly undertake,  and  the reasonably
     foreseeable  conduct of  others  in furtherance  of
     that   criminal   activity,  are   not  necessarily
     identical.   For example,  two defendants agree  to
     commit  a robbery  and, during  the course  of that
     robbery, the first defendant assaults and injures a
     victim.   The second defendant  is accountable  for
     the  assault and injury to the  victim (even if the
     second defendant had not  agreed to the assault and
     had cautioned the first defendant to be careful not
     to hurt  anyone) because the assaultive conduct was
     in  furtherance of the  jointly undertaken criminal
     activity   (the   robbery)   and   was   reasonably
     foreseeable  in  connection   with  that   criminal
     activity (given the nature of the offense).

U.S.S.G. 1B1.3, application note 2.

          Application  note 2  reflects recognition  that the

accomplice attribution provision of    1B1.3 operates to hold

a defendant responsible for the conduct of others even though

"a count may  be worded  broadly and include  the conduct  of

many participants  over a period of time."  So as to keep the

criminal  responsibility  within  bounds,     1B1.3  requires

sentencing  courts to  ascertain on  an individual  basis the

scope of the criminal  activity that the particular defendant

agreed jointly to undertake.   U.S.S.G.    1B1.3, application

note 2.   To do  this, the  court may consider  any "explicit

                             -14-

agreement  or  implicit agreement  fairly  inferred  from the

conduct  of  the defendant  and others."    Id.;   see United
                                                             

States v. Innamorati, No.  91-1896, slip op. at 66  (1st Cir.
                    

June 17,  1993) (members of drug  distribution conspiracy may

be held accountable at sentencing for different quantities of

narcotics,   "depending   on   the  circumstances   of   each

defendant's involvement"); United States v. Collado, 975 F.2d
                                                   

985,  992 (3d Cir.  1992) ("the crucial  factor in accomplice

attribution is  the extent of the  defendant's involvement in

the  conspiracy"); Wilkens  &amp; Steer,  Relevant Conduct:   The
                                                             

Cornerstone of the  Federal Sentencing Guidelines,  41 S.C.L.
                                                 

Rev. 495, 511 (1990) ("liability might be justified for those

who  are  at the  top  directing and  controlling  the entire

operation")  (quoting 2  W.  LaFave &amp;  A. Scott,  Substantive

Criminal Law   6.8, at 155 (1986)). 

          On remand here, therefore, the district  court must

determine  (1)  the  scope  of the  joint  criminal  activity

explicitly or implicitly agreed  to by Patriarca jointly with

others; (2)  whether the criminal acts  proffered as relevant

conduct  were  in  furtherance  of  this  jointly  undertaken

criminal activity;  and (3)  whether the proffered  acts were

reasonably  foreseeable  in  connection  with  that  criminal

activity.  These determinations will fix the relevant conduct

under    1B1.3 for purposes of  calculating the offense level

under     2E1.1.   Such  determinations are,  of  course, all

                             -15-

inherently fact-bound.   See,  e.g., Innamorati, slip  op. at
                                               

66.

          Rather  than applying    1B1.3  to    2E1.1 in  the

straightforward  manner discussed  above, the  district court

limited relevant  conduct to  only those predicate  acts that

were  charged against  Patriarca  personally     namely,  the

Travel  Act  violations.   In  doing so,  the  district court

improperly   treated   the   term  "underlying   racketeering

activity"  in    2E1.1(a)(2) as  if it  "otherwise specified"

that relevant conduct  should not apply  to each "offense  of

conviction"  (including  the RICO  conspiracy  count and  the

substantive RICO count) and instead  should apply only to the

predicate  Travel Act  violations.   See U.S.S.G.    1B1.3(a)
                                        

("Unless  otherwise specified, . .  . cross references  . . .
                             

shall  be determined  on the basis  of .  . .  all reasonably

foreseeable acts . . . that occurred during the commission of

the offense of  conviction . . .  ") (emphasis added).   This
                          

was error.  "Subsection  (a) [of   1B1.3] establishes  a rule

of  construction  by  specifying,  in  the  absence  of  more

explicit instructions in the context of a specific guideline,

the  range of  conduct that  is relevant  to determining  the

applicable  offense level  .  .  .  ."    U.S.S.G.     1B1.3,

Background.   The  background commentary  to    1B1.3 further

makes  clear that "[c]onduct that is  not formally charged or

is not an element of the offense of conviction may enter into

                             -16-

the  determination  of   the  applicable  guideline   range."

Section   2E1.1        specifically   the   term  "underlying

racketeering activity"     contains no  explicit instructions

displacing the general rule in   1B1.3 that relevant  conduct

includes  uncharged conduct.   In  a RICO  case, there  is no

justification for limiting "underlying racketeering activity"

just  to  predicate  acts specifically  charged  against  one

defendant.4  

          We,  therefore, agree with  the government that the

term  "underlying racketeering  activity"  in     2E1.1(a)(2)

means  simply  any  act,   whether  or  not  charged  against

defendant personally, that qualifies  as a RICO predicate act

under 18 U.S.C.   1961(1)5 and is otherwise relevant  conduct

                    

4.  Aside  from  its  departure  from  the  relevant  conduct
guideline,  the district  court's interpretation  could raise
other problems.  For example, in some circuits the government
need not  allege specific  predicate acts when  it charges  a
defendant  with  RICO  conspiracy.    See  United  States  v.
                                                         
Glecier, 923 F.2d 496,  501 (7th Cir.), cert. denied,  112 S.
                                                    
Ct.  54 (1991); United States v. Phillips, 874 F.2d 123, 127-
                                         
28 (3d Cir. 1989).  A court sentencing a defendant  in such a
case would be put in a difficult position  if forced to apply
literally the district court's  analysis.  Because such cases
do  not  identify  and  charge the  "underlying  racketeering
activity," a  court following  the district court's  approach
might be limited to the base offense level of 19 as specified
in     2E1.1(a)(1),  even  though the  real  offense  conduct
underlying the  conspiracy is considerably  more serious than
other level 19 offenses.

5.  Section  1961(1)  defines   "racketeering  activity"   to
include,  inter alia,  "any act  or threat  involving murder,
                    
kidnaping,  gambling,  arson,  robbery,  bribery,  extortion,
dealing in  obscene matter, or  dealing in narcotic  or other
dangerous  drugs, which  is  chargeable under  State law  and
punishable  by imprisonment  for more  than one  year; .  . .

                             -17-

under     1B1.3.     Because  the  reference  to  "underlying

racketeering activity"  is a  cross reference,    1B1.3 comes

into  play and defines "the range of conduct that is relevant

.  . . ."  See U.S.S.G.   1B1.3, Background.  It follows that
              

the acts of relevant conduct proffered by the government, all

of  which are racketeering acts that  could have been charged

as predicate  offenses, come  under the heading  of "relevant

conduct"  for  sentencing Patriarca  on  the  RICO counts  of

conviction,  provided  they  otherwise  meet  the  accomplice

attribution standards of   1B1.3(a)(1)(B).

          To  avoid  this  conclusion,  Patriarca   cites  to

application notes  1 and 5  to U.S.S.G.    1B1.2.   He argues

that these  application notes show that  the term "underlying

racketeering  activity" should  be  limited  to the  specific

predicate acts  charged against him.   We think  that neither

application note is applicable here.

          Application note  1 to U.S.S.G.    1B1.2 states the

following:

          This section provides the basic rules for
          determining the  guidelines applicable to
          the  offense  conduct  under Chapter  Two
          (Offense  Conduct).   As a  general rule,
          the court is to use the guideline section
          from  Chapter Two most  applicable to the
          offense  of  conviction.   The  Statutory
          Index (Appendix A)  provides a listing to
          assist in  this  determination.   When  a

                    

[and] any act which is indictable under . . . title 18 .  . .
section 1512  (relating to tampering with  a witness, victim,
or an informant) . . . ."

                             -18-

          particular  statute   proscribes  only  a
          single  type  of  criminal  conduct,  the
          offense  of  conviction  and the  conduct
          proscribed by the statute  will coincide,
          and  there  will   be  only  one  offense
          guideline referenced.  When  a particular
          statute proscribes a  variety of  conduct
          that  might  constitute  the  subject  of
          different  offense guidelines,  the court
          will  determine  which guideline  section
          applies  based  upon  the nature  of  the
                                                   
          offense  conduct charged in  the count of
                                                   
          which   the   defendant  was   convicted.
                                                  
          (Emphasis ours.)

Patriarca   relies  on   the  emphasized   portion   for  the

proposition that  relevant  conduct pertaining  to  composite

crimes,  like RICO, must be limited to conduct charged in the

indictment.  It is clear, however, from  the full text of the

application note, that the  note is meant to guide  courts in

the initial selection of  the applicable guideline in Chapter

Two,  not  to  limit  cross references  within  a  particular

guideline.   There is  no question here  that the  applicable

guideline for RICO convictions is   2E1.1.  Thus, application

note  1  to     1B1.2  provides  no  support  for Patriarca's

argument.

          Application note 5 to   1B1.2 is equally immaterial

to  the   application  of   relevant  conduct  to      2E1.1.

Application note 5 relates  specifically to   1B1.2(d), which

states  that:  "A conviction on a count charging a conspiracy

to commit more than  one offense shall  be treated as if  the

defendant  had   been  convicted  on  a   separate  count  of

                             -19-

conspiracy for  each offense that the  defendant conspired to

commit."  Application note 5 in turn provides the following:

     Particular   care  must   be   taken  in   applying
     subsection (d) because there are cases in which the
     verdict or plea does not establish which offense(s)
     was the object of  the conspiracy.  In such  cases,
     subsection (d)  should only be applied with respect
     to an  object  offense alleged  in  the  conspiracy
                                                        
     count if the court,  were it sitting as a  trier of
          
     fact, would convict the defendant of conspiring  to
     commit that object offense.   Note, however, if the
     object offenses  specified in the  conspiracy count
     would be grouped together under   3D1.2(d) (e.g., a
                                                     
     conspiracy to  steal three government checks) it is
     not necessary to engage in the  foregoing analysis,
     because   1B1.3(a)(2) governs consideration  of the
     defendant's conduct.

U.S.S.G.   1B1.2, application note 5 (emphasis added).

          In arguing  that   1B1.2(d) and  application note 5

limit relevant  conduct in composite cases,  like RICO cases,

to  conduct "alleged"  in the  indictment as  predicate acts,
                    

Patriarca notes similar language  in the application notes to

  2E1.1 and  the multiple count rules.  Application note 1 to

   2E1.1  states  that  "[w]here  there  is   more  than  one

underlying offense,  treat  each  underlying  offense  as  if

contained  in a  separate  count  of  conviction  .  .  .  ."

Similarly, the introductory commentary  to the multiple count

rules provides that "[s]ome  offenses, e.g., racketeering and
                                           

conspiracy, may be 'composite' in that they involve a pattern

of conduct or scheme involving multiple  underlying offenses.

The rules  in this  Part  are to  be  used to  determine  the

offense level  for such  composite offenses from  the offense

                             -20-

level  for the underlying offenses."  Application note 8 to  

3D1.2 refers specifically  back to   1B1.2(d):   "A defendant

may be convicted of  conspiring to commit several substantive

offenses  and   also  of  committing  one  or   more  of  the

substantive offenses.   In  such cases, treat  the conspiracy

count as if it were several counts, each  charging conspiracy

to  commit one of the  substantive offenses.   See   1B1.2(d)
                                                             

and accompanying commentary."  U.S.S.G.    3D1.2, application
                           

note 8 (emphasis added).

          On the basis of this commentary, Patriarca contends

that the only way to apply  the multiple count section of the

guidelines  to a RICO conviction is to use the directions for

the more commonly applied conspiracy, and hence the rule of  

1B1.2(d).6  We disagree.   First, the definition of "offense"

                    

6.  The   training  staff   at   the  Sentencing   Commission
apparently agrees.   In  the latest issue  of the  Sentencing
Commission's   Most  Frequently  Asked  Questions  About  the
                                                             
Sentencing  Guidelines, Vol.  VI, Dec.  1, 1992,  Question 30
                      
asks:   "The  defendant was  convicted of  RICO (18  U.S.C.  
1962).   How  is  the alternative  base  offense level  at   
2E1.1(a)(2) determined?"  The answer provides the following:

     Application note 1 to    2E1.1 instructs that where
     there is  more than  one underlying offense  (i.e.,
                                                       
     predicate  act), each underlying  offense should be
     treated  as if  contained  in a  separate count  of
     conviction for  the purposes of  subsection (a)(2).
     (See   1B1.2(d) and Application  Note 5.)  Each  of
         
     the  underlying offenses, whether or not charged in
     substantive counts of conviction, are treated as if
     they  were  substantive  counts  of  conviction, or
     "pseudo counts."

Id.   The training staff's informational  booklet states that
   
"[t]he  information  does   not  necessarily  represent   the

                             -21-

contained in the application notes to U.S.S.G.   1B1.1 is not

limited to  charged offenses.  Instead,  "offense" is defined

to mean "the  offense of conviction and  all relevant conduct
                                                             

under    1B1.3 (Relevant Conduct) unless  a different meaning
                                 

is  specified  or  is  otherwise  clear  from  the  context."

U.S.S.G.   1B1.1, application note 1(l) (emphasis added).  As

stated  previously,    2E1.1  does  not  specify a  different

meaning;  therefore,  there   is  no   reason  to   interpret

"underlying offense" to exclude uncharged conduct.

          Furthermore, although applying    1B1.2(d) to  RICO

convictions has  some  superficial  appeal,  there  would  be

insurmountable  obstacles  to   its  practical   application.

First,  by its  own terms,    1B1.2(d)  is limited  to counts

"charging a conspiracy."   Therefore, it is  difficult to see
                      

how    1B1.2(d) could apply  to a substantive  RICO violation

(as opposed  to a  RICO conspiracy).   Even overlooking  this

language, it would be impossible under application note 5 for

a court  to determine whether it "would convict the defendant

of conspiring to commit"  an underlying offense in situations
             

where  the  defendant  is  charged with  a  substantive  RICO

violation  and the  underlying offense  is not  a conspiracy.

                    

official position of the Commission, should not be considered
definitive,  and  is not  binding  upon  the Commission,  the
court, or  the parties in any case."   Because   1B1.2(d), by
its own terms, is  not applicable to RICO convictions,  we do
not follow the training staff's suggestion.

                             -22-

Thus,   1B1.2(d)  is inapplicable  to nonconspiracy  offenses

such as a substantive RICO violation.

          There are problems with applying   1B1.2(d) to RICO

conspiracies as well.  It seems clear from the plain  text of

   1B1.2(d),   the  application   notes,  and  the   official

commentary7  that     1B1.2(d)   was  enacted  to  deal  with

multiple object conspiracies  charged in a  single count.   A

RICO  conspiracy,  however,  is  considered a  single  object

                    

7.  Official  comments made by  the Sentencing  Commission at
the  time that it enacted    1B1.2(d) clarify  the purpose of
Application note 5:

     [Application note 5]  is provided to  address cases
     in which  the jury's  verdict does not  specify how
     many  or  which offenses  were  the  object of  the
     conspiracy  of which  the defendant  was convicted.
     Compare U.S. v. Johnson, 713 F.2d 633, 645-46 (11th
                            
     Cir.  1983)   (conviction   stands  if   there   is
     sufficient  proof with  respect to  any one  of the
     objectives),  with U.S.  v. Tarnopol, 561  F.2d 466
                                         
     (3d Cir.  1977) (failure  of proof with  respect to
     any one  of the  objectives renders the  conspiracy
     conviction   invalid).     In  order   to  maintain
     consistency with other    1B1.2(a)  determinations,
     this decision  should be governed  by a  reasonable
     doubt standard.  A  higher standard of proof should
     govern the  creation of what  is, in effect,  a new
     count  of  conviction for  the purposes  of Chapter
     Three,  Part D  (Multiple  Counts).    Because  the
     guidelines do not explicitly establish standards of
     proof, the proposed new application note calls upon
     the  court to  determine  which offense(s)  was the
     object of the conspiracy as if it  were "sitting as
     a trier  of fact."  The  foregoing determination is
     not required, however, in the case of offenses that
     are grouped  together under   3D1.2(d) (e.g., fraud
                                                 
     and   theft)   because        1B1.3(a)(2)   governs
     consideration of the defendant's conduct.

U.S.S.G. App. C., para. 75, p.29 (Nov. 1, 1989).

                             -23-

conspiracy  with that  object  being the  violation of  RICO.

United  States v. Ashman, 979  F.2d 469, 485  (7th Cir. 1992)
                        

("The goal of  a RICO  conspiracy is a  violation of  RICO.")

(quoting United States v. Neapolitan, 791 F.2d 489, 496  (7th
                                    

Cir.), cert. denied, 479 U.S. 940 (1986)), petition for cert.
                                                             

filed  sub nom.  Barcal  v. United  States, 61  U.S.L.W. 3857
                                          

(U.S. April  6,  1993)  (No. 92-1804).    In  enacting  RICO,

Congress intended  that "'a  series of agreements  that under

pre-RICO  law would  constitute  multiple conspiracies  could

under RICO be tried as a single enterprise conspiracy' if the

defendants   have  agreed   to  commit  a   substantive  RICO

offense."8  United States v.  Riccobene, 709 F.2d 214, 224-25
                                       

(3d  Cir.) (quoting  United  States v.  Sutherland, 656  F.2d
                                                  

1181, 1192 (5th Cir. 1981), cert. denied, 455 U.S. 949 (1982)
                                        

(internal   citation  omitted)),   cert.   denied  sub   nom.
                                                             

Ciancaglini v. United States, 464 U.S. 849 (1983).
                            

          Application notes  1  and 5  to    1B1.2  are  not,

therefore, material  to determining whether  relevant conduct

                    

8.  Rather  than merely  requiring  a defendant  to agree  to
commit a  substantive RICO offense, this  circuit follows the
minority  rule, which  requires  that a  defendant agreed  to
commit, or in fact committed, two or more specified predicate
crimes  as  part  of  the defendant's  participation  in  the
affairs of  the enterprise in order to  convict the defendant
for a RICO  conspiracy.   United States v.  Boylan, 898  F.2d
                                                  
230,  241 (1st  Cir.),  cert. denied,  498  U.S. 849  (1990);
                                    
United States v. Winter, 663 F.2d 1120, 1136 (1st Cir. 1981),
                       
cert.  denied, 460  U.S.  1011 (1983).   This  minority rule,
             
however,  does not  affect the  general  premise that  a RICO
conspiracy is a single object conspiracy.

                             -24-

must  be   limited  to  predicate  acts   charged  against  a

defendant.   Instead,   1B1.3 determines the range of conduct

that  is  relevant  to  cross references  such  as  the  term

"underlying  racketeering activity" in   2E1.1(a)(2), and the

background commentary to    1B1.3 makes clear that "[c]onduct

that  is  not formally  charged  .  . .  may  enter  into the

determination of the applicable guideline sentencing range."

          Because  the application of    1B1.3 to    2E1.1 is

straightforward and unambiguous, the district court  erred in

resorting to the general principles underlying the guidelines

and  the general  rule  of construction  that "courts  should

construe   statutes   to   avoid   decision   as   to   their

constitutionality."   See, e.g.,  United States  v. Monsanto,
                                                            

491 U.S. 600, 611  (1989).  "[C]ourts should strive  to apply

the guidelines  as written, giving  full force and  effect to

the  Sentencing  Commission's  interpretive   commentary  and

application notes."   United  States v. Zapata,  No. 93-1116,
                                              

slip  op. at 4  (1st Cir. July  19, 1993); accord  Stinson v.
                                                          

United States, 113 S. Ct. 1913, 1915 (1993); United States v.
                                                          

Brewster,  No.  93-1046, slip  op. at  7  (1st Cir.  July 28,
        

1993).  Absent specific provision in   2E1.1 that "underlying

racketeering  activity" includes only charged predicate acts,

we see no principled basis to read such a limitation into the

provision.

                             -25-

          Even were the application  of relevant conduct to  

2E1.1  less clear than it is, we would have trouble accepting

the  three principles  cited  by the  district  court as  the

rationale for limiting relevant conduct to the predicate acts

actually  charged against  a defendant.   The  district court

felt that "the Sentencing Guidelines are closer to  a 'charge

offense' system than a  'real offense' system of punishment."

Patriarca, 807 F. Supp.  at 190; U.S.S.G. Ch. 1, Pt. A, 4(a),
         

p. 5.  In the court's view, the reason the government did not

charge  the conduct at issue in this appeal as predicate acts

in the indictment is  because the government had insufficient

evidence  to sustain a conviction  for this conduct.   807 F.

Supp. at  191.   Because  conduct "which  the prosecutor  can

prove in court" is supposed to "impose[] a natural limit upon

the prosecutor's ability to increase a defendant's sentence,"

U.S.S.G.  Ch.1, Pt. A, 4(a),  p.5, the court  thought that it

would  be  improper  for  a sentencing  court  to  increase a

defendant's  sentence  on the  basis  of uncharged  predicate

acts.

          Similar arguments have been  rejected by this court

and virtually every other circuit court to have addressed the

issue.   See, e.g., United  States v. Mocciola,  891 F.2d 13,
                                              

16-17 (1st  Cir. 1989); United  States v. Galloway,  976 F.2d
                                                  

414,  424  n.6  (8th  Cir. 1992)  (collecting  cases),  cert.
                                                             

denied, 113 S. Ct. 1420 (1993).   While the district court is
      

                             -26-

correct that "for the most part, the court will determine the

applicable  guideline by looking  to the charge  of which the
                     

offender was convicted,"   United States v.  Blanco, 888 F.2d
                                                   

907, 910 (1st Cir. 1989), real offense principles enter  into

the  punishment prescribed  in  the  guidelines  through  the

relevant  conduct guideline,    1B1.3.   Breyer,  The Federal
                                                             

Sentencing Guidelines and the Key Compromises Upon Which They
                                                             

Rest, 17 Hofstra L.  Rev. 1, 11-12 (1988).   Relevant conduct
    

increases    a    defendant's   sentence,    sometimes   very

significantly, despite the fact that it was not charged in an

indictment, e.g., Blanco,  888 F.2d at 910, and  even despite
                        

the fact that  a jury  may have acquitted  the defendant  for

that  precise conduct.   E.g., Mocciola,  891 F.2d  at 16-17;
                                       

United  States  v.  Rumney,  867 F.2d  714,  719  (1st  Cir.)
                          

("traditional  sentencing  factors need  not  be  pleaded and

proved at trial")  (quoting United States v. Brewer, 853 F.2d
                                                   

1319,  1326 (6th Cir.),  cert. denied, 488  U.S. 946 (1988)),
                                     

cert.  denied,   491  U.S.  908  (1989).    This  is  because
             

sentencing factors, including  the applicability of  relevant

conduct,  need  only be  proven  by  a  preponderance of  the

evidence, not beyond a reasonable  doubt.  Mocciola, 891 F.2d
                                                   

at 16-17; Galloway, 976 F.2d at 424 n.6.  As noted below,  in
                  

pre-guideline cases courts likewise took into account untried

criminal conduct when exercising sentencing discretion.   The

fact  that the government has not charged and proven beyond a

                             -27-

reasonable doubt the conduct now asserted as relevant conduct

does  not prevent the increase in sentence resulting from the

relevant  conduct guideline.   We  see no  special reason  to

deviate  from  this  principle   when  dealing  with  a  RICO

conviction.

          Nor are we as convinced as the district  court that

sentencing  Patriarca  on  the basis  of  uncharged  relevant

conduct  might be so unfair as to raise due process concerns.

The  district  court  assumed  that  if  Patriarca  was  held

responsible for either the  Limoli or Berns murder, Patriarca

would face a potential life sentence under the guidelines and

the RICO  penalty provision.   We  believe that  the district

court was mistaken in this assumption.  The RICO statute sets

the maximum prison sentence at 20 years unless "the violation
                                                             

is based  on a racketeering  activity for  which the  maximum

penalty  includes  life  imprisonment."    18 U.S.C.  1963(a)

(emphasis added).    We agree  with the  government that  the

statutory maximum sentence must  be determined by the conduct

alleged   within  the   four  corners   of   the  indictment.

Otherwise,  a defendant  would not  know at  the time  of his

arraignment  or  change of  plea  what  his maximum  possible

sentence  would  be on  the  charged offenses.    The charged
                                                             

conduct, if proven beyond a reasonable doubt, constitutes the

"violation" of  which a defendant is  convicted.  Patriarca's
          

charged  conduct included no acts  such as would  result in a

                             -28-

life sentence.  The predicate acts  charged in the indictment

were all violations of the Travel Act, which does not carry a

possible  life sentence.    Therefore, while  for  sentencing

purposes within  the 20-year maximum Patriarca  is liable for

uncharged as  well as  charged relevant conduct,  his maximum

penalty  is  fixed  at twenty  years  for  each  of the  RICO

counts.9   The  relevant conduct  determination here  affects

only where, within that  statutory range, Patriarca should be
                                        

sentenced.

          We  are also  unpersuaded  by the  district court's

concern that  sentencing Patriarca on the  basis of uncharged

predicate  acts would  be "inconsistent  with  the Sentencing

                    

9.  At  oral  argument,  Patriarca  contended  that   if  the
district court determines that Patriarca's base offense level
on the  RICO counts  is 43 (i.e.,  if the court  decides that
                                
Patriarca is responsible for a murder and that a minimal role
adjustment  would be  improper), then  the court  in applying
U.S.S.G.     5G1.2(d)  should  impose  consecutive sentences,
which could  total up to 65  years (20 years for  each of the
two RICO counts  and 5 years for each of  the five Travel Act
counts).  See  United States  v. Masters, 978  F.2d 281,  284
                                        
(7th  Cir. 1992)  (affirming  district court  sentencing RICO
defendant  to consecutive  maximum sentences  of 20  years on
each count,  for a total  of 40  years, in order  to come  as
close as  possible to life imprisonment  prescribed for level
43 offenses), cert. denied, 113 S. Ct. 2333 (1993).  At least
                          
one member of the  panel believes that serious constitutional
concerns may  arise if the defendant  ultimately receives the
equivalent of a life sentence on the ground of his connection
with  a  murder for  which he  was  never indicted,  tried or
convicted by a  jury.   However, the district  court may  yet
ultimately sentence Patriarca  to considerably  less than  65
years.   Because  the district  court has  not yet  sentenced
Patriarca   under  the  relevant   conduct  guideline  as  we
interpret  it today,  any decision  as to  the constitutional
implications,  if  any,  of   a  65-year  sentence  would  be
premature.

                             -29-

Commission's  intention  to  set up  a  system  which is  not

administratively unwieldy."  Patriarca,  807 F. Supp. at 192.
                                      

While  it  is  true  that  considerations  of  administrative

efficiency  as  well  as  procedural  fairness  prompted  the

Commission  to require  sentencing courts  "to  determine the

applicable guideline  by looking to  the charge of  which the
                    

offender was convicted," it is also clear that the Commission

intended real  offense principles  to apply to  determine the

applicability   of   various  adjustments,   including  cross

references.   See  Blanco, 888  F.2d at 910.   The  fact that
                         

application   of  real   offense  principles  may   burden  a

sentencing court with additional fact finding is no reason to

ignore the Commission's compromise between "real offense" and

"charge offense" sentencing.   See id. at 911.   Sentencing a
                                      

RICO  defendant on the basis of  uncharged predicate acts may

not, indeed,  prove to  be impracticable.   Drug conspirators

are frequently  sentenced on  the basis of  drug transactions

committed by  coconspirators.  In both  situations, the court

must determine the scope  of the criminal activity  agreed to

by  the  defendant,  the  reasonable  foreseeability  of  the

conduct  proffered  as  relevant  conduct,  and  whether  the

relevant conduct was in furtherance of the jointly undertaken

activity.   To be sure,  the wide range of  crimes covered by

RICO may inject new complexities, but, if so, the remedy lies

                             -30-

with the Sentencing Commission.  The courts are not empowered

to rewrite the relevant conduct guideline.10

          Finally,  the  district  court's  observation  that

there are apparently no reported pre-guideline cases in which

a RICO defendant was  sentenced on the basis of  an uncharged

murder is not dispositive.  There could, of course, have been

such  cases that  went unreported  or unappealed.   Sentences

were not usually the subject  of published opinions prior  to

the guidelines.   And courts often  used material information

from many sources  in exercising  their discretion  to set  a

sentence within the  permissible, often very  wide, statutory

range.   See, e.g., Roberts  v. United States,  445 U.S. 552,
                                             

556  (1980); Williams  v.  New  York,  337 U.S.  241,  250-51
                                    

(1949); United States v.  Lee, 818 F.2d 1052, 1055  (2d Cir.)
                             

("Any circumstance that aids the sentencing court in deriving

a  more complete  and  true picture  regarding the  convicted

person's   background,  history,  or   behavior  is  properly

considered.  For that reason, .  . . , other crimes for which

the  defendant was  neither tried  nor convicted,  and crimes

charged that  resulted  in  acquittal  may  be  used  by  the

                    

10.  We recognize that determining uncharged relevant conduct
could  sometimes  impose tremendous  additional burdens  on a
court.  Relief may be afforded, however, in some instances by
the  fact that district courts  need not make  findings as to
acts  proffered as relevant conduct if  the findings will not
reflect   the  offense   level.     See   U.S.S.G.      3D1.4
                                       
(instructions on determining the combined offense level).

                             -31-

sentencing   court   in   determining  sentence")   (citation

omitted), cert. denied, 484 U.S. 956 (1987).
                      

          We conclude that the  principles put forward by the

district  court  provide  no  adequate  reason  for  limiting

relevant  conduct to  charged predicate  acts in  RICO cases.

Because  the  district   court  incorrectly  interpreted  the

guidelines, it did not reach a host of other arguments raised

by  Patriarca  in an  attempt  to  avoid the  straightforward

application of  the relevant conduct guideline,   1B1.3, to  

2E1.1.  These arguments include:  whether due process and the

Confrontation Clause require additional procedures, such as a

higher standard of proof  than preponderance of the evidence,

in  order to  hold  Patriarca responsible  for the  proffered

relevant  conduct; whether  due  process  requires notice  of

proffered  relevant  conduct not  otherwise disclosed  in the

indictment prior  to  the  entry of  a  defendant's  plea  of

guilty;   whether  sentencing  Patriarca   for  murders  that

occurred  prior  to  the  effective date  of  the  guidelines

violates  the  Ex Post  Facto  Clause, even  though  the RICO

offense  extended  beyond  that date;  whether  the  relevant

conduct   guideline   exceeds  the   Sentencing  Commission's

statutory  authority;  and whether  the government  should be

estopped from  arguing that Patriarca is  responsible for the

proffered relevant conduct.   Several of these arguments have

been expressly  rejected by  this circuit  and others.   See,
                                                            

                             -32-

e.g., United States v.  Brewster, No. 93-1046, slip op.  at 5
                                

(1st  Cir. July  28,  1993)  ("Absent bad  faith  . .  .  the

critical time for  disclosure of sentence-related information

is  not  prior  to  the  taking  of  a  plea,  but  prior  to

sentencing."); United States v. David, 940 F.2d 722, 739 (1st
                                     

Cir. 1991) ("It is well established that the guidelines apply

to a  defendant whose  offense begins before  the guidelines'

effective  date  and continues  after the  effective date."),

cert. denied, 112 S.  Ct. 2301 (1992); Galloway, 976  F.2d at
                                               

421-22 (rejecting argument that relevant conduct provision is

not authorized by the Sentencing Reform Act).  However, it is

not  necessary for  us to  decide these  issues in  the first

instance.  On remand, the district court should consider, and

where appropriate, decide those issues that Patriarca chooses

to assert again.  

          In  a  last  ditch  effort  to avoid  resentencing,

Patriarca  contends  that the  legal  issue  of how  relevant

conduct is applied to the RICO guideline has been effectively

mooted  by  the  district  court's  findings  concerning  the

proffered acts  of relevant conduct.   Patriarca asserts that

the in the course of  determining whether an upward departure

was  warranted pursuant  to    5K2.0 and    4A1.3,  the court

found,  as  a matter  of fact,  that  the government  had not

established  his criminal  liability  for five  of the  seven

relevant  conduct  allegations       the  Limoli   and  Berns

                             -33-

homicides, the  Carrozza drug dealing, the  Ferrara "hit," or

the harboring of Alphonse Persico.11  

          This contention  has no merit.   The district court

expressly stated that because  it found that relevant conduct

must  be  limited  to  charged predicate  acts,  it  was  not

deciding "whether the crimes at issue with regard to relevant

conduct were  within the scope of  the defendant's conspiracy

and/or   reasonably   foreseeable   consequences    of   it."

Patriarca,  807 F. Supp. at 196.  In discussing the purported
         

conduct in its upward  departure analysis, the district court

merely stated that  it was not persuaded that  Patriarca knew

of, or personally participated  in, these offenses.  However,

a  defendant   can  be  accountable  for  the   acts  of  his

coconspirators under    1B1.3 without having  been personally

involved.  The standard is whether the acts of coconspirators

were in  furtherance of  the jointly undertaken  activity and

were reasonably foreseeable to the defendant.  The seven acts

                    

11.  As  to  the remaining  two  proffered  acts of  relevant
conduct       Caruana's  marijuana  importation and  fugitive
status   ,  Patriarca contends that the  court's finding that
such conduct  warranted a  criminal history upward  departure
and the fact that the indictment mentions drug trafficking in
general,   rather   than   particularly  alleging   marijuana
importation,  preclude  consideration   of  this  conduct  as
relevant conduct.  Neither contention  has merit.  The  court
treated  the Caruana  allegations under the  upward departure
guideline,     4A1.3, only  because  the  court thought  this
uncharged conduct could not qualify as relevant conduct under
   1B1.3.    Moreover,  we  think  the  indictment's  generic
allegation of  narcotics trafficking is sufficient  to permit
the  court  to  consider  marijuana  importation  as relevant
conduct.

                             -34-

proffered as relevant conduct must be  reexamined in light of

this standard.

     C.  Patriarca's Appeal
                           

          Patriarca  appeals from the district court's upward

departure  under  U.S.S.G.     4A1.3 and  from  the  district

court's  imposition   of  the  costs  of   incarceration  and

supervision under U.S.S.G.    5E1.2(i).  Our holding that the

district court must resentence Patriarca on the  basis of his

relevant conduct  moots the  issue of  the  propriety of  the

court's  upward  departure.    The  district  court  departed

upwards under    4A1.3 on the  basis of its finding  that the

government had proved by a preponderance of the evidence that

Patriarca  had "aided  and abetted  drug crimes  committed by

Salvatore Michael Caruana" from 1981 to 1983.  Patriarca, 807
                                                        

F. Supp. at 170.  Because  on remand the court will decide if

the   Caruana  conspiracy  is   relevant  conduct   for  RICO

sentencing purposes,  its utilization  as a basis  for upward

departure need not be considered here, and is vacated.

          For  similar  reasons, we  must  reject Patriarca's

challenge to his  cost-of-imprisonment fine.  As part  of his

sentence, the district court ordered  Patriarca to pay a fine

of $50,000 pursuant to U.S.S.G.   5E1.2(c), plus $122,344 for

the cost of his imprisonment, and $3,954 for the  cost of his

supervision.   Patriarca,  807 F.  Supp. at  210.   The later
                        

                             -35-

portion  of  the fine  was  assessed pursuant  to  U.S.S.G.  

5E1.2(i), which states the following:

     Notwithstanding  the  provisions of  subsection (c)
     [the  minimum-maximum fine table]  of this section,
     but subject  to the  provisions  of subsection  (f)
     [the defendant's ability to pay]  herein, the court
     shall impose  an additional fine amount  that is at
     least sufficient to pay the costs to the government
     of  any  imprisonment,  probation,   or  supervised
     release ordered.

U.S.S.G.   5E1.2(i).   Patriarca contends that the Sentencing

Reform  Act,   18  U.S.C.     3553(a),   does  not  authorize

imposition of  a fine  to recompense  the government  for the

cost of  incarceration or supervised release,  and   5E1.2(i)

is therefore invalid.

          The  few  circuit  courts  to  have addressed  this

question  agree  that  the  Sentencing Reform  Act  does  not

authorize  the assessment  of a  fine solely  to pay  for the

costs  of  a  defendant's  imprisonment.   United  States  v.
                                                         

Spiropoulos,  976 F.2d  155,  165-69 (3d  Cir. 1992);  United
                                                             

States  v. Hagmann, 950 F.2d  175, 187 n.29  (5th Cir. 1991),
                  

cert. denied, 113 S. Ct. 108 (1992).  They disagree, however,
            

as to whether    5E1.2(i) can be justified on  other grounds.

Compare United States  v. Turner, No. 93-1148, 1993 U.S. App.
                                

LEXIS 17472 (7th Cir.  July 14, 1993)  (costs  of confinement

reflect seriousness of the crime and increase deterrence) and
                                                             

Hagmann, 950 F.2d  at 187  ("the uniform  practice of  fining
       

criminals  on the  basis  of their  individualistic terms  of

imprisonment     an  indicator of  the actual  harm each  has

                             -36-

inflicted upon society     is a rational means to  assist the

victims of crime collectively") with Spiropoulos, 976 F.2d at
                                                

168  ("The cost  of imprisoning  a defendant  has little,  if

anything, to do with the amount that the defendant has harmed

his or  her victim(s),  and is  therefore questionable  as an

appropriate method  of restitution.");  see United  States v.
                                                          

Doyan,  909  F.2d 412,  416  (10th Cir.  1990)  ("Whether the
     

purpose  of the  contested fine  is to  punish, deter,  or to

spare  the  taxpayers a  substantial  expense  that has  been

generated by an intentional criminal act,  we cannot say that

Guideline     5E1.2(i)  as  applied here  bears  no  rational

relation to  the legitimate governmental interest in criminal

justice.").  The  government here argues  that   5E1.2(i)  is

merely a means of achieving the clearly authorized purpose of

punishing  a defendant based on the seriousness of his or her

offense.

          We  do  not  find  it appropriate  to  answer  this

question  at the  present  time.   First,  Patriarca did  not

object  to  his  cost-of-imprisonment  fine at  the  time  of

sentencing.  Hence, the district court had no reason to focus

on  the  issue, and  we lack  the  benefit of  its considered

views.   Absent plain error, we normally will not consider an

issue raised for the first time on appeal.  See United States
                                                             

v.  Newman, 982 F.2d 665,  672 (1st Cir.  1992), petition for
                                                             

cert.  filed, 61 U.S.L.W. 3751 (U.S. April 22, 1993) (No. 92-
            

                             -37-

1703); United States  v. Haggert,  980 F.2d 8,  11 (1st  Cir.
                                

1992);  United States v.  Mondello, 927 F.2d  1463, 1468 (9th
                                  

Cir. 1991)  (refusing to  consider argument not  raised below

that the fine  provisions of the  Guidelines are contrary  to

statutory  authorization).   Because  the fine  issue is  one

which has divided our sister circuits, we cannot see that the

district court's  alleged error  in assessing the    5E1.2(i)

fine was a "plain" one within the meaning of Fed. R. Crim. P.

52(b).   See United  States v. Olano,  113 S.  Ct. 1770, 1777
                                    

(1993).

          In  addition, our  decision that Patriarca  must be

resentenced  taking into  account uncharged  relevant conduct

requires that we also vacate the fine portion of  Patriarca's

sentence.  Should the district court on remand determine that

Patriarca  must be sentenced at a  higher base offense level,

his  minimum and  maximum fine  range under     5E1.2(c) will

likewise   increase.      Moreover,   Patriarca's   cost   of

imprisonment necessarily  depends  upon  the  length  of  his

confinement.  On remand, Patriarca can  argue that a cost-of-

imprisonment fine  under   5E1.2(i) is  inconsistent with the

Sentencing Reform Act.  Should  the district court reject the

argument and Patriarca again appeal from the fine, that  will

be  the  appropriate  time  for  this  court  to  decide  the

question.   Presently,  however, because  we must  vacate the

fine and because Patriarca  did not raise the issue  below   

                             -38-

hence  failing  to bring  the claimed  error to  the district

court's  attention for  focused consideration     we  find it

inappropriate to decide whether   5E1.2(i) is valid.

II.  Carrozza's Sentence
                        

          Defendant/appellant Robert F. Carrozza appeals from

a judgment of conviction and a 228-month sentence  imposed by

the  district  court, after  Carrozza  pleaded  guilty to  49

counts of racketeering-related offenses, including violations

of  the RICO  statute,  extortion, kidnapping,  loansharking,

narcotics distribution, gambling, obstruction of justice, and

intimidation of a witness.  Carrozza argues that the district

court's  decision to  "assume" that  Carrozza's  base offense

level  should be adjusted upwards for his role in the offense

constituted plain error.  

          After  extensive  plea  negotiations, Carrozza  and

four of  his codefendants  entered into plea  agreements with

the  government.  Pursuant  to Fed. R.  Crim. P. 11(e)(1)(C),

Carrozza and  the government agreed that  a specific sentence

of 228 months was "the appropriate  disposition of the case,"

constituting "a justifiable departure within the meaning of  

6B1.2(c)(2)  of  the  United States  Sentencing  Guidelines."

Both  parties  agree   on  appeal   that  this   "justifiable

departure" was understood to  have been a downward departure.

                             -39-

          Apart from the  agreed sentence, Carrozza  received

two additional benefits  in exchange for his plea  of guilty.

First, the government promised  not to prosecute Carrozza for

his alleged  involvement in the murder of  William Grasso and

the attempted  murder of  Francis Salemme,  Sr.   Second, the

government promised that Carrozza  would not be subpoenaed to

testify  in  any  federal  grand jury  investigation  in  the

District of  Massachusetts relating to the  activities of the

PatriarcaFamily occurringbefore thedate of theplea agreement.

          The plea  agreements for all  five defendants  were

made  expressly   contingent   upon  the   district   court's

acceptance  of  the  pleas  of guilty  from  each  defendant.

According to the government,  the interdependency of the plea

agreements  reflected  the  government's  major   purpose  in

entering  the  agreements     eliminating  the  need for  any

trial, which the parties estimated would take from six months

to  a year or more.  Because removing some but not all of the

defendants  would not significantly reduce the time necessary

to try the case, the government  bargained for, and obtained,

the option to withdraw all five plea agreements if any of the

defendants moved successfully to withdraw his plea.

          The  district  court  conditionally   accepted  the

guilty pleas pending consideration of the presentence reports

("PSR").   The preliminary PSR for  Carrozza was completed on

April 3, 1992.  The preliminary PSR calculated his applicable

                             -40-

guideline  range, based  on  an offense  level  of 33  and  a

criminal  history category of  IV, to be  188-235 months, and

therefore concluded  that the  agreed sentence of  228 months

was consistent with the guidelines.  The PSR determined  that

there were no factors warranting departure.

          On April 9, the  government filed its objections to

this PSR, complaining  that some of the PSR's calculations of

Carrozza's offense level were too high and some were too low.

The key objection  made by  the government was  that the  PSR

should have made an upward adjustment  pursuant to U.S.S.G.  

3B1.1(a) for  Carrozza's role  as an organizer  or leader  in

several of  the offenses charged.   The government calculated

the applicable  guideline range  to be 235-293  months, based

upon an offense level  of 35 and a criminal  history category

of IV.    Finally,  the  government argued  that  there  were

justifiable factors to support a downward departure.

          Carrozza  filed several specific  objections to the

PSR  on  April 17.   Although  Carrozza  did not  discuss the

particulars  of  his  own   calculation  of  the   applicable

guideline range, he  did argue that "a downward  departure to

the agreed  upon sentence" was  warranted.  Carrozza  did not

dispute the  government's calculations as to his  role in the

offenses charged.

          The Addendum to the PSR was completed on  April 23.

The Addendum  accepted some  of  the government's  objections

                             -41-

calling  for  a  downward   revision  in  the  offense  level

calculations,  but  rejected  the  government's  role in  the

offense  objection because  the  government had  not provided

"sufficient  information  .  .  .  in  the  details  of   the

particular episodes to delineate  the individual roles of the
          

defendant within those episodes."   The Addendum recalculated
                      

the  total offense level to be 31, yielding a guideline range

of  151-188 months.  The Addendum noted that this range would

require "an  upward departure if  the Court were  to sentence

the  defendant to the amount  of time designated  in the plea

agreement [228 months]."

          On  the same day that  the Addendum to  the PSR was

disclosed,  the  government   and  Carrozza  filed   separate

sentencing  memoranda, each  arguing  to the  court that  the

agreed  upon  sentence  constituted  a  justifiable  downward

departure.

          The sentencing hearing was  held on April 29, 1992.

At the  outset of the sentencing hearing, the court explained

that under Rule 11(e)(1)(C), it could  either accept the plea

agreements and impose the  agreed-upon sentence in each case,

or  reject  the  agreements   and  offer  the  defendants  an

opportunity  to  withdraw their  pleas.    The court  clearly

articulated the disparate guideline ranges calculated  by the

government and the probation office and then stated:

          I think the most  sensible thing to do is
          to not resolve that dispute but to decide

                             -42-

          whether the 228-month  sentence, which  I
          think  is  about  19  years,  if  it  is,
          indeed, an eight-month downward departure
          as    the    Government    intends,    is
          appropriate. . . .

          Well,  I am going to proceed . . . in the
          following  fashion:   I  am not  deciding
          whether the Guidelines are 151  months to
          188    months    or   [if]    Probation's
          calculation  is   followed,  which  would
          involve  40-month   upward  departure  or
          whether, as the Government contends, that
          Mr.  Carrozza has assumed up to now, [or]
          at least up to the time of  his plea, the
          calculations might be 235 to 293 months.

          I am going to analyze this in the context
          of the  question being whether     if the
          Guidelines are  235 [to] 293  months, the
          seven-month  downward  departure  to  228
          months   [as]  called  for  by  the  plea
          agreement is justifiable.

The  court explained  that it was  not resolving  the dispute

because  Fed. R. Crim. P.  32 does not  require resolution of

issues  that will  not  be material  to  the sentence  to  be

imposed.            When  asked  if anyone  objected  to this

procedure, the parties responded "no."  Consistent with their

prehearing positions, both Carrozza and the government argued

that  the agreed  upon  sentence  represented  a  justifiable

downward departure from the applicable guideline range.

          The  court  thereafter  sentenced Carrozza  to  228

months imprisonment,  to be followed by  60 months supervised

release.   On  the same  day, the  district court  entered an

order relating  to the presentence  reports.  In  this order,

the  court  stated that  one  of the  justifications  for its

                             -43-

downward departures  for several  of the defendants  was that

the  departures "eliminated the need for both a lengthy trial

(which it was estimated would take  six months to a year) and

for   protracted  sentencing  hearings  to  resolve  disputes

relevant to the term  of incarceration to be imposed  on each

defendant."

          On April  30, 1992,  the court entered  its "Second

Order Relating to Presentence Report" in Carrozza's case.  In

that  order, the court expressly  relied on Fed.  R. Crim. P.

32(c)(3)(D)(ii) as its justification for failing to calculate

the sentencing guideline range applicable to Carrozza:

          With    regard   to    the   government's
          objections   to   the  PSR,   the  court,
          pursuant    to    Fed.   R.    Crim.   P.
          32(c)(3)(D)(ii),  did not  decide whether
          the applicable Sentencing Guidelines were
          235  to  293 months  as  asserted by  the
          government  or  151   to  188  months  as
          recommended  by  the  Probation  Officer.
          Rather, the court assumed  the Sentencing
          Guidelines were  a minimum of  235 months
          and  agreed with  the government  and the
          defendant  that  if   the  binding   plea
          agreement, pursuant  to Fed. R.  Crim. P.
          11(c)(1)(C) [sic], calling for a sentence
          of  228  months represented  a departure,
          there  were  justifiable reasons  for it.
          Thus, the agreed-upon 228  month sentence
          was imposed.

          Judgment    was   entered    on   May    1,   1992.

Notwithstanding the court's previous  assertions that it  was

merely  "assuming"  that  the  government  was  correct,  the

judgment indicates  that the court found  the guideline range

to be  235-293 months  and imposed  a downward  departure for

                             -44-

justifiable reasons.  In a May  7, 1992 memorandum explaining

its  sentence,   the  court  once  again   stated  its  basic

assumption:

          In the Presentence Report,  the Probation
          Department      calculated     Carrozza's
          Sentencing  Guidelines  to  151   to  188
          months.      The   government,   however,
          contended that the proper  calculation of
          Carrozza's Sentencing  Guidelines was 235
          to 293 months.  Carrozza's plea agreement
          specified a sentence of 228 months, or 19
          years, in prison.  The court analyzed his
          plea agreement on the assumption that the
          required  sentence  represented  a  seven
          month downward departure.

          On  appeal, Carrozza  contends that  the sentencing

procedure  employed  by  the  district   court  was  patently

unlawful because the court failed to determine the applicable

guideline range.

     A.  Plain Error Standard12
                             

                    

12.  In   its   jurisdictional   statement,  the   government
questions  whether  this  court  has  jurisdiction  over  the
instant appeal.   The government  notes that a  defendant may
only  appeal a sentence  pursuant to a  Rule 11(e)(1)(C) plea
agreement  on the  grounds that the  sentence was  imposed in
violation of law or  as a result of an  incorrect application
of   the  guidelines.    18   U.S.C.     3742(c).     In  his
jurisdictional  statement, Carrozza  asserts  only  that  the
sentence  was in  violation  of the  law.   Because  Carrozza
provides no authority  for the proposition that a  claim such
as he raises  of procedural error  in determining a  sentence
may rise to the level of a claim that  the resulting sentence
was  imposed in violation  of the law,  the government argues
that  this  court is  without  jurisdiction  to consider  the
appeal.  Regardless whether  the district court's error rises
to the level of  a violation of law, Carrozza  clearly argues
in  his brief  that the  district court  failed to  apply the
guidelines correctly when it "assumed" a role in  the offense
adjustment.     That  is   sufficient  to  give   this  court
jurisdiction to  decide this  appeal.   See United States  v.
                                                         

                             -45-

          Carrozza concedes that because he  failed to object

to  the  district  court's   course  of  conduct  during  the

sentencing hearing, his sentence can  be reversed only upon a

showing  of plain  error.    See  Fed.  R.  Crim.  P.  52(b).
                                

Carrozza has failed to make such a showing here.

          The  Supreme Court  recently interpreted  the plain

error rule in United States v. Olano, 113 S. Ct. 1770 (1993).
                                    

In  Olano,  the Court  reiterated  the  three limitations  on
         

appellate authority  to recognize errors under  Fed. R. Crim.

P.  52(b):  (1) there must be  an "error," (2) the error must

be  "plain," and  (3)  the error  must "affec[t]  substantial

rights."  Id. at 1777-78.  Even if a  defendant can establish
             

all three criteria, an appellate court has discretion not  to

review the error because Rule 52(b) is written in permissive,

not mandatory, terms.   Id. at  1778.  The standard  to guide
                           

that discretion was  stated in United States v. Atkinson, 297
                                                        

U.S. 157, 160 (1936):  appellate courts  should correct plain

forfeited errors affecting  substantial rights if  the errors

"seriously  affect[]  the   fairness,  integrity  or   public

reputation  of judicial proceedings."   Olano, 113  S. Ct. at
                                             

1779.

          We  agree  with Carrozza  that  the  district court

committed  error when it  "assumed" that Carrozza's guideline

                    

Smith, 918  F.2d 664, 668-69  (6th Cir. 1990)  (upholding the
     
right of a defendant to file a similar appeal under 18 U.S.C.
3742(a)(1) or (a)(2)), cert. denied, 111 S. Ct. 1088 (1991).
                                   

                             -46-

range was 235-293 months prior to its "downward" departure to

228  months.  Before accepting a plea agreement that contains

a specific  sentence under  Fed. R.  Crim. P.  11(e)(1)(C), a

sentencing court  is required to satisfy  itself either that:

"(1) the  agreed sentence is within  the applicable guideline

range; or (2) the agreed sentence departs from the applicable

guideline  range  for  justifiable   reasons."    U.S.S.G.   

6B1.2(c).  To determine whether the sentence departs from the

applicable guideline range for justifiable reasons, the court

must first  determine what the applicable  guideline range is

and  then analyze  whether a  departure  is authorized  by 18

U.S.C.   3553(b)  and the general departure  rules in Chapter

1, Part  A (4)(b) of the  Guidelines.  See  U.S.S.G.   6B1.3,
                                          

Commentary.  In effect,    6B1.2(c) instructs courts to apply

general  guideline  principles  when determining  whether  to

accept  a plea  under  Fed. R.  Crim.  P. 11(e)(1)(C).    See
                                                             

U.S.S.G.     1B1.1  (general  instructions  on  applying  the

guidelines).13

                    

13.  The government argues that Carrozza has waived his right
to  have the  district  court determine  an actual  guideline
range by expressly agreeing  to the district court's decision
to assume a guideline  range.  A deviation from a  legal rule
is  not considered  an "error"  if that  legal rule  has been
waived,  as opposed to merely  forfeited.  See  Olano, 113 S.
                                                     
Ct. at 1777 ("Whereas  forfeiture is the failure to  make the
timely  assertion  of  a  right, waiver  is  the  intentional
relinquishment or abandonment of  a known right.")  (internal
quotations omitted).  We doubt that the sentencing guidelines
can be waived.   For  example, we suspect  that an  agreement
between the  government  and a  defendant  not to  apply  the
guidelines would be  ineffective.  Because of doubts that the

                             -47-

          In   sentencing   Carrozza,   the  district   court

mistakenly  believed  that  Fed.  R.  Crim.   P.  32(c)(3)(D)

authorized its decision not  to determine an actual guideline

range for Carrozza's offenses.   As we have stated,  this was

error.    Rule  32(c)(3)(D)14 apparently  relates  to factual

inaccuracies in a presentence  report, not to mixed questions

of  law and  fact that  a  defendant does  not dispute.   See
                                                             

United States v.  Hand, 913  F.2d 854, 857  (10th Cir.  1990)
                      

(defendant's  disagreement over  PSR's legal  conclusion that

defendant was not a minor participant does not allege factual

inaccuracies  in   the  PSR  and  does   not  implicate  Rule

32(c)(3)(D)).   But see  United States v.  Rosado-Ubiera, 947
                                                        

F.2d 644,  646 (2d Cir. 1991) (Rule  32(c)(3)(D) was violated

                    

sentencing  guidelines  are waivable,  we  rest  our decision
today on  Carrozza's failure  to establish that  the district
court's   error  affects  substantial   rights,  and  on  our
discretion  not to recognize  plain errors even  when they do
affect substantial rights.

14.  Fed. R. Crim. P.  32(c)(3)(D) provides in pertinent part
the following:

          If  the   comments   of  the   defendant  and   the
                                                  
     defendant's  counsel or  testimony or  other information
     introduced by them allege  any factual inaccuracy in the
                                                      
     presentence investigation  report or the summary  of the
     report or  part thereof,  the  court shall,  as to  each
                                                             
     matter  controverted,  make  (i)  a finding  as  to  the
                         
     allegation, or (ii) a determination that no such finding
     is necessary because the matter controverted will not be
     taken into account in sentencing.

Fed. R. Crim. P. 32(c)(3)(D) (emphasis added).

                             -48-

when court failed to resolve the  defendant's precise role in

the offense).  

          To be sure, a district court has inherent power not

to decide  disputes that are immaterial or  irrelevant to the

ultimate sentence.  For example,  a sentencing court need not

determine  whether prior  convictions  should be  added to  a

defendant's criminal  history score if the  addition will not

affect the defendant's criminal history category.  See United
                                                             

States  v. Lopez, 923 F.2d  47, 51 (5th  Cir.), cert. denied,
                                                            

111 S. Ct. 2032 (1991).  We have also held  that a sentencing

court need  not  choose  between  two  overlapping  guideline

ranges when the  same sentence would have  been imposed under

either range.  United States v. Ortiz, 966 F.2d 707, 718 (1st
                                     

Cir.  1992), cert.  denied, 113  S. Ct.  1005 (1993);  United
                                                             

States  v. Concemi, 957 F.2d 942, 953 (1st Cir. 1992); United
                                                             

States v. Bermingham, 855 F.2d 925, 934 (2d Cir. 1988).  Here
                    

however,  the  two  ranges  did  not  overlap,  nor  was  the

sentencing factor  immaterial to Carrozza's  guideline range.

Instead,  if   the  disputed   factor  was  decided   in  the

government's favor, Carrozza's sentencing range would be 235-

293 months, but  if the  issue was decided  as the  probation

office recommended, Carrozza's guideline range  would be 151-

188 months.  

          We have  also  intimated  in  the past  that  if  a

sentencing court intends  to depart, an error in applying the

                             -49-

guidelines  may prove to be harmless if the court makes clear

that it would  have departed to the same  sentence regardless

of the exact guideline range.  United States v. Plaza-Garcia,
                                                            

914 F.2d  345, 347 (1st Cir. 1990).   We have never, however,

suggested  that   a  sentencing  court  need   not  decide  a

sentencing factor when one decision will result in  an upward

departure and another in  a downward departure.  Such  a rule

would  be inimical  to  the very  principle behind  guideline

departures.  United States  v. McCall, 915 F.2d 811,  814 n.3
                                     

(2d   Cir.  1990)   (rejecting  government's   argument  that

incorrect  application of  guidelines, resulting in  range of

151-188 months  instead of  87-108 months, was  irrelevant to

court's ultimate  sentence because court indicated  an intent

to depart  down for substantial cooperation     an indication
               

that could not be reconciled with court's 108-month sentence,

which was at the high end of the correct guideline range).

          The district court, therefore, erred when it simply

assumed that Carrozza's  guideline range was  235-293 months,

and ignored the probation  office's suggestion that the range

should  be 151-188 months.   And while we  can understand and

sympathize  with  the district  court's  desire  to avoid  an

obtuse decision  that may have seemed academic,  we think the

error  was "plain" in the sense  that it was both "clear" and

"obvious."  See Olano, 113 S. Ct. at 1777.  That is enough to
                     

                             -50-

pass  the second  hurdle  to appellate  authority under  Rule

52(b).

          We now turn to the  third and often deciding factor

in our  plain error  analysis     whether  the error  affects

substantial rights.  In most  cases, "although perhaps not in

every case,  the defendant must  make a  specific showing  of

prejudice to satisfy the 'affecting substantial rights' prong

of Rule  52(b)."  Olano,  113 S.  Ct. at 1778.   For  several
                       

reasons, we think Carrozza has not made such a showing here.

          First, Carrozza  has not  argued, and points  to no

evidence suggesting,  that an actual adjustment  for his role

in the offense  would have been improper.   Instead, Carrozza

merely assumes that the  district court's "assumption" was in

fact wrong,  and argues  that he  was prejudiced  because his

actual  guideline range  might have  been years  shorter than
                              

that assumed by the district court.  However, analysis of the

record reveals that, in  all likelihood, the district court's

assumption  that Carrozza's  base  offense level  was 35  was

correct.  

          The difference  between  the government's  and  the

probation  office's calculations  of Carrozza's  base offense

level  resulted  entirely  from  whether  or  not  an  upward

adjustment should have been given  for Carrozza's role in the

drug conspiracy.  The probation office assigned a level 26 to

Carrozza's  drug trafficking activity.  The government argued

                             -51-

that  this level  should be  increased by  four levels  to 30

because Carrozza was an organizer/leader of this activity and

because the  activity involved more  than five  participants.

See  U.S.S.G.     3B1.1(a).    Because  Carrozza's  narcotics
   

activities yielded the highest offense level among Carrozza's

various offenses  and, therefore, served as  a starting point

for  the multiple count analysis  under U.S.S.G.   3D1.4, the

difference  was  crucial.     Applying  the  multiple   count

analysis, both the probation  office and the government added

five  levels     the  probation  office arriving  at  a total

offense level 31 and a guideline range of 151-188 months, and

the government  calculating a  total offense  level 35  and a

guideline range of 235-293 months.

          The  probation  office  rejected  the  government's

request  for  a role  in the  offense  adjustment for  any of

Carrozza's offenses, contending  that there was  insufficient

evidence as to Carrozza's role in the  individual offenses to

make such a determination.   While the specifics with  regard

to Carrozza's  role in his bookmaking  and extortion offenses

are  rather  sketchy,  the   government  provided  more  than

sufficient  evidence  that  Carrozza directed  the  narcotics

activities of  five or  more participants.   The government's

104-page  factual  submission  to  the  probation  office  is

replete with  evidence that Carrozza  directed and  organized

the drug trafficking  conspiracy.  Given this evidence, it is

                             -52-

understandable why Carrozza completely neglected to argue the

propriety  of  a  role  in  the  offense  adjustment  in  his

appellate  brief and below.  Since it is Carrozza's burden to

establish   that  the   district   court's   error   affected

substantial rights,  his failure  to argue that  a four-level

role  in the  offense  adjustment would  have been  improper,

combined with  the fact  that an  adjustment would have  been

appropriate at  least with  respect to the  crucial narcotics

conspiracy, undermines Carrozza's claim of prejudice.   To be

sure, a role in the offense adjustment is a mixed question of

law and fact.  In most instances, an appellate court will not

examine  such questions in the  first instance.   We make the

analysis only to indicate  the unlikelihood that Carrozza was

prejudiced  by the  district  court's failure  to decide  the

issue.  

          A further  reason  for finding  no error  affecting

substantial  rights  is  the  significant  benefits  Carrozza

received in exchange for his plea of guilty.  In exchange for

Carrozza's agreement  to a 228-month sentence, the government

promised   not  to   prosecute  Carrozza   for  his   alleged

involvement in  the murder  of William  Grasso     an offense

that could carry a  sentence of life imprisonment     and the

attempted  murder of  Frank Salemme,  Sr.   In addition,  the

government promised  not to  subpoena Carrozza to  testify in

any  federal  grand jury  investigation  in  the District  of

                             -53-

Massachusetts  relating  to the  activities of  the Patriarca

Family.    This later  promise  was  probably significant  to

Carrozza,  who, as a made member of the Patriarca Family, had

taken  the oath  of "omerta"  to protect  the secrets  of the

Patriarca Family of La Cosa Nostra to his grave.  In light of

the  significant benefits  Carrozza  received  from the  plea

agreement,  it is difficult to  see how he  was prejudiced by

the district  court's acceptance  of his plea  and sentencing

him  to a term of imprisonment upon which he had specifically

agreed.   See United States v. Ybabez, 919 F.2d 508, 510 (8th
                                     

Cir.  1990) ("We do not discern a miscarriage of justice when

a  defendant receives the sentence he bargained for in a plea

agreement."), cert. denied, 111 S. Ct. 1398 (1991).
                          

          Finally, even  if Carrozza  were able  to establish

some  form of prejudice from the  district court's failure to

address  his role in the  offense and thereby  pass the third

and final hurdle of appellate  authority under Fed. R.  Crim.

P. 52(b), the case  would be an  inappropriate one for us  to

exercise our  discretion to recognize plain forfeited errors.

The Supreme Court  has made clear on numerous  occasions that

courts  of  appeals  should correct  plain  forfeited  errors

affecting substantial rights  only if the errors  "'seriously

affect[] the  fairness,  integrity or  public  reputation  of

judicial  proceedings.'"  Olano, 113 S.  Ct. at 1779 (quoting
                               

Atkinson, 297  U.S. at 160).   We see no such  serious effect
        

                             -54-

here.   Carrozza failed  to object in  circumstances strongly

indicative that  he wished to accept  the compromise sentence

because  of  the  benefits   it  conferred.    The  attendant

circumstances do not reflect discreditably upon the fairness,

integrity or public reputation of the proceeding.

          We  vacate  Patriarca's  sentence  and  remand  for
                    

resentencing  in accordance  with this  opinion.   Carrozza's

sentence is affirmed.
                    

                             -55-
