
USCA1 Opinion

	




                            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 &  Lawson, John F.            ___________________            __________________________  _______        Cicilline, Kimberly Homan  and Sheketoff  & Homan were  on briefs  for        _________  ______________      __________________        Raymond J. Patriarca.            James L.  Sultan  with  whom  Rankin &  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                   2E1.1.  Unlawful   Conduct   Relating   to   Racketeer                           ______________________________________________                           Influenced and Corrupt Organizations                           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  & 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 &  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-
