
USCA1 Opinion

	




          November 22, 1994 UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2120                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 WILLIAM J. DeCOSTA,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET            The opinion  of this court  issued on  October 7, 1994,  is hereby        amended as follows:            Delete the  last two sentences of the first full paragraph on page        ten  which begins with "As  for the .  . . ." and  ends with "is worth        pondering."  and   replace  the  sentences  with   the  following  two        sentences:                 "As for  the government,  zeal is ordinarily  to be                 admired  in a  prosector  but it  can be  overdone.                 Accordingly, we  are comforted to  learn that prior                 to prosecution  DeCosta was offered  an opportunity                 to participate in the pretrial  diversion program--                 even though for reasons not developed in the record                 no agreement was ultimately reached."                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2120                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 WILLIAM J. DeCOSTA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Frank P. Marchetti, by Appointment of the Court, for appellant.            __________________            Nadine  Pellegrini, Assistant  United States  Attorney,  with whom            __________________        Donald K. Stern,  United States Attorney, was on brief  for the United        _______________        States.                                  ____________________                                   October 7, 1994                                 ____________________                 BOUDIN,  Circuit  Judge.   As part  of a  postal service                          ______________            "sting," postal inspectors placed an advertisement concerning            child pornography  in a  local publication.   William DeCosta            was  foolish enough  to respond.   In correspondence  with an            undercover postal inspector, DeCosta expressed an interest in            receiving such material.  In February 1989, DeCosta mailed to            the undercover  agent four photographs depicting  young girls            in sexually explicit poses.  Thereafter he was indicted.                   In December 1992, DeCosta  pleaded guilty to a violation            of 18 U.S.C.    2252(a)(2)  which relates to  the mailing  of            child pornography.   Prior  to the plea,  the government  (in            connection  with  DeCosta's  release conditions)  urged  that            DeCosta  might   be  dangerous  to  children,   offering  the            testimony of  a psychologist who  had examined DeCosta.   The            district  judge had  DeCosta examined  by another  expert and            accepted that expert's conclusion  that DeCosta posed no such            danger.                   The  guideline sentence for DeCosta's offense, given his            lack  of  any   criminal  history,  was   12  to  18   months            imprisonment.   U.S.S.G.   2G2.2 (1989).  (The district court            utilized  the  November  1989  manual  because  a  subsequent            increase  in the  guideline  range  posed  an ex  post  facto                                                          _______________            problem;  all  citations  below  are  to  the  1989  manual.)            Between the  time  of  the  guilty plea  and  the  sentencing            hearing on August 12,  1993, the district court energetically                                         -2-                                         -2-            explored   the   options   available,   including   in-prison            treatment.     DeCosta  himself   was  receiving  out-patient            counseling at the time of the sentencing hearing.  At     the            sentencing  hearing on  August 12,  1993, the  district judge            asked the prosecutor whether the U.S. Attorney's office would            consider an alternative to  imprisonment; it appears from the            transcript that there had  been earlier, unsuccessful efforts            along this line.   The  prosecutor said that  the matter  had            been discussed in her office and that pre-trial diversion was            not agreeable to  the government.   In  fact, the  prosecutor            urged imprisonment for 18  months, the maximum period allowed            under the guidelines.                 At the hearing, there was testimony from the expert  who            had  previously  concluded  that DeCosta  posed  no  physical            danger  to anyone.    DeCosta's attorney  urged the  court to            impose probation but  provided no explanation  as to how  the            court might be  empowered to do  so.   Counsel did advert  to            DeCosta's present out-patient treatment, his somewhat limited            intelligence  and the fact that he had not taken the pictures            he had mailed.  It was also pointed out that although DeCosta            had  lost his  job  as a  security  guard, he  had  found new            employment to support his family.                 After    describing   DeCosta's    current   out-patient            treatment, his  counsel said that he  (DeCosta) "has improved            tremendously" in  his attitude and outlook.   DeCosta's wife,                                         -3-                                         -3-            said counsel, wants him home.  When defense counsel said that            the court "should look further, to see if there's some way to            give this man probation," the district court pointed out that            it  had urged counsel to help it to distinguish several cases            that appeared to limit the court's ability to depart from the            guidelines.   The court then said  that DeCosta could receive            treatment at the  Buttner, North Carolina, facility if the 12            month  minimum  sentence  were  imposed.   DeCosta's  counsel            replied:                      I think the  repercussions of that  would                      be far greater than  what we've had up to                      this point, where the children [DeCosta's                      children] have suffered,  the family  has                      suffered,  the  publicity has  hurt them.                      He's   lost  his  job,   his  income  has                      suffered.   Now,  the family  will be  on                      welfare  and I  don't think  they'll ever                      get back together, if  this man goes away                      for a year.  . . . And that would be even                      sadder than what we've got today.                 After  a  further colloquy,  including  the prosecutor's            rejection of pretrial diversion, the court sentenced  DeCosta            to  one  year  of  imprisonment, three  years  of  supervised            release including mental health  counseling as directed,  and            the mandatory $50 special  assessment.  The court recommended            to  the  Bureau of  Prisons that  the  sentence be  served at            Buttner with appropriate treatment.  Thereafter, the district            court stayed the sentence pending this appeal.                 On  appeal,  DeCosta's  central  argument  concerns  the            district court  failure to  depart from the  guidelines range                                         -4-                                         -4-            and sentence DeCosta to probation or  something less than one            year.   It is settled law that a sentencing court is entitled            to  depart  in  cases   that  fall  outside  the  "heartland"            contemplated by the guidelines.  See United States v. Rivera,                                             ___ _____________    ______            994 F.2d 942, 946-47 (1st Cir.  1993).  Both the statute  and            the guidelines  permit departures  where the court  finds "an            aggravating or  mitigating circumstance  of a  kind, or to  a            degree  not  adequately  taken  into  consideration"  by  the            Sentencing  Commission  "that  should  result  in a  sentence            different from that described" in the  guidelines.  18 U.S.C.              3553(b); U.S.S.G.   5K2.0.                 Although the decision not to depart is ordinarily within            the  district court's  discretion, DeCosta  asserts that  the            district court erred in concluding  that it had no discretion            to depart.  It quotes in part the district judge's comment at            the hearing:                           But unless I am persuaded  that this                      case  is  extraordinary  [in]  kind  o[r]                      degree and a  departure is justified, I'm                      required  to give the  defendant at least                      12 months in prison.  Anticipating that I                      would  not have the  discretion to give a                      probationary  sentence, I've  talked with                      the Bureau  of Prisons, as  well as  with                      Pretrial Services and Probation.            DeCosta's  brief  further argues  that  the  court could  and            should  have   departed   in  light   of  DeCosta's   limited            intelligence,  his  family   and  employment  situation,  his            cooperation   in  seeking   counseling,  his   acceptance  of                                         -5-                                         -5-            responsibility,  and  the lack  of  danger that  he  posed to            others.                 The government has  responded with a brief  of more than            twice the length of that filed by DeCosta.  The brief argues,            with extensive  citations, that  DeCosta failed to  raise the            departure  issue below and has  therefore waived it.   If not            waived, says the government, the district court's sentence is            in  any case within  the guideline  range and  therefore non-            appealable.  Finally, if the refusal to depart is appealable,            the  government  says  that  none  of  the  family  or  other            circumstances urged  are extraordinary  enough  to provide  a            reasonable basis  for departure; and the  brief analyzes each            of  these grounds.  It is not  easy to think of anything else            that might have been argued in defense of the sentence.                 We start with the  government's claim that the departure            issue has been waived.  There  is no doubt that the  district            court did consider whether to  depart.  The court  emphasized            DeCosta's lack of dangerousness and went so far as to ask the            parties  to  brief  the  question whether  United  States  v.                                                       ______________            Studley, 907 F.2d 254  (1st Cir. 1990), and United  States v.            _______                                     ______________            Deane,  907 F.2d 11 (1st Cir. 1990), precluded a departure on            _____            this ground.  Apparently, DeCosta's counsel found no basis to            distinguish Studley or  Deane and on appeal  agrees that lack                        _______     _____            of  dangerousness alone would not be  a permissible basis for            departure.                                         -6-                                         -6-                 It  is far  less clear  that the  issue of  departure on            other   grounds  was  explicitly   raised  at   the  hearing.            DeCosta's counsel,  as the government points  out, never used            the  term, and the factors that he emphasized at the hearing,            apart from lack of danger, were for the most part relevant to            the selection of a  sentence within the guideline range.   On            the  other  hand, DeCosta's  counsel  certainly  did ask  for            probation, a  result  that could  only be  reached through  a            departure, and  urged the same factors now pressed as grounds            for departure.  The  district court made clear that  it would            happily depart  if  it had  the  authority to  do  so.     On            balance,  we are  not inclined  to resolve  this case  on the            basis of waiver.                 The  government's  next  argument,  that   the  district            court's decision is unreviewable, presents  quite a different            problem.   The  discretionary decision  not to  depart  is an            action ordinarily not subject  to appellate review, but there            are  certain exceptions. These exceptions include cases where            the sentencing court declines to depart because of "a mistake            of law," such as  "the sentencing court's mistaken impression            that  it  lacked  the  legal authority  to  deviate"  or  its            "misapprehension of the rules governing  departures."  United                                                                   ______            States v. Gifford, 17 F.3d  462, 473 (1st Cir. 1994).   For a            ______    _______            thorough  discussion  of the  matter,  see  United States  v.                                                   ___  _____________            Pierro, No. 93-1313 (1st Cir. July 27, 1994).              ______                                         -7-                                         -7-                 Difficulty  commonly arises where mitigating factors are            urged as a basis for departure, and the district court simply            asserts that it "cannot" or "is without authority" to depart.            Terse phrases  like these are common, for  the district court            is not required to  give reasons for refusing to  depart, but            they may create an  ambiguity.  A district court  might think            that it "cannot" depart based on the factors urged because it            misunderstands the guidelines or the precedents; for example,            it  might think that a mitigating factor is a forbidden basis            for  departure  when  it   is  actually  a  permissible  one.            Conversely,  a  district court  might  say  that it  "cannot"            depart  where it means only  that it has  weighed the factors            urged  and found that they  do not distinguish  the case from            the mine run of cases.                 Here, we have no reason to think that the district court            made any mistake  of law in construing the governing statute,            the  guidelines  or  pertinent  precedent.    Defense counsel            implies that the district  court must have underestimated its            authority to depart  on grounds  other than  lack of  danger,            because  the court failed to  discuss the other  factors as a            possible basis  for departure.   But  the obvious  reason for            this  "failure" is  that  defense counsel  at the  sentencing            hearing never explicitly urged these other factors as a basis            for departure.                                         -8-                                         -8-                 DeCosta  is  also not  helped  by  the district  judge's            comment  that  "I would  not have  the  discretion to  give a            probationary sentence . .  . ."  Context often  explains just            what the court  meant by such  remarks and it  does so  here.            The  district  judge's  immediately  prior  sentence,  quoted                                                 _____            above, makes plain that the district judge meant only that he            couldnot findthecase extraordinaryenoughto justifyadeparture.                 In this case, it  is easy to conclude  that there is  no            evident or even arguable error of law that  would allow us to            review the refusal to depart.   But difficult cases--at least            as to reviewability--will remain wherever  mitigating factors            are explicitly urged  as the  basis for a  departure and  the            district court says only that it "cannot" or "lacks power" to            depart.  Sometimes,  as here,  it will be  easy to  determine            just  what the district court meant.  But because the problem            is a recurring  one, we have a suggestion:  that the district            court say--where this is the case--that it has considered the            mitigating factors urged but  does not find them sufficiently            unusual to warrant a departure in the case at hand.                 Of course,  in  some cases  this  formula would  not  be            proper.   Here, for example, we fully agree with the district            court that  Studly and  Deane  mean that  the district  court                        ______      _____            would have had no authority  to depart simply because DeCosta            was not dangerous.  Similarly, if a district court desired to            depart  but  thought   this  course  forbidden   by  explicit                                         -9-                                         -9-            guideline language, one  would expect the  court to cast  its            refusal  in these terms.   But where  permissible factors are            urged and the court simply thinks that there is not enough to            distinguish the case  from the ordinary,  a sentence to  this            effect would be helpful.                 Having found  no legal error,  we need not  consider the            government's   final,   alternative    argument   that    the            circumstances  in this case  are not  so extraordinary  as to            provide  a  basis  for   departure.    Still,  it  would   be            unfortunate  to leave  the  impression that  there exists  an            obvious  basis for  departure  that we  are ignoring  because            defense  counsel  failed to  frame  the  legal issue  in  the            district court.   No  record  evidence is  present here  that            "reduced mental capacity contributed to the commission of the            offense," U.S.S.G.    5K2.13,  and the guideline  language on            family circumstances and employment is not helpful to DeCosta            in this case.  Id.    5H1.5, 5H1.6.                           ___                 Child  pornography is  not a  victimless crime,  but for            DeCosta and his family this is surely a very sad  affair.  We            commend the district court for its multiple efforts to find a            solution  best  suited to  the  circumstances.   As  for  the            government, zeal  is ordinarily to be admired  in a prosector            but it can  be overdone.   Accordingly, we  are comforted  to            learn  that  prior  to  prosecution DeCosta  was  offered  an            opportunity to participate in the pretrial diversion program-                                         -10-                                         -10-            -even  though  for reasons  not  developed in  the  record no            agreement was ultimately reached.                 The   appeal  is   dismissed   for  want   of  appellate                                    _________            jurisdiction.                                         -11-                                         -11-
