
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-2042                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                     ALINA PEREZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Lenore Glaser with whom  Stern, Shapiro, Weissberg & Garin was  on            _____________            _________________________________        brief for appellant.            Michael  J. Pelgro,  Assistant United  States Attorney,  with whom            __________________        Donald K. Stern, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                   January 23, 1998                                 ____________________                      ALDRICH, Senior Circuit Judge.  Defendant-appellant                               ____________________            Alina  Perez,  convicted  of  federal  controlled   substance            offenses   and  with  a  record  of  prior  state  controlled            substance  offenses, was sentenced as a career offender under            the United States Sentencing Guidelines.  She had asked for a            downward departure, and appealed its denial.  We remanded for            clarification, and she is now here again, no better off.                      Perez's indictment  in the  District Court  for the            District of Massachusetts was  on one count of  conspiracy to            distribute   heroin  and  four   counts  of   possession  and            distribution of heroin  in furtherance of the  conspiracy, in            violation  of 21  U.S.C.    846 and  841(a)(1), respectively.            She pled guilty to  the conspiracy charge and  to two of  the            distribution charges,  and nolo  contendre to  the other  two                                       _______________            distribution  charges.  Because of two prior state controlled            substance  felony  convictions, she  met the  career offender            definition of  U.S.S.G.    4B1.1 (1995).    Achieving  career            offender  status  meant  an initial  total  offense  level of            thirty two, an automatic criminal history category of VI, the            highest, and a  guideline sentencing range of  151-188 months            after a three point offense level reduction for acceptance of            responsibility.                      At  her  first sentencing  hearing,  Perez  did not            dispute the  literal  applicability of  the  career  offender            provision,  but  contended  that she  was  a  "small player,"                                         -2-            outside  the heartland of career offender drug cases, because            the amounts of  drugs involved in her offenses,  and her role            in  them,  had  been  small.    She  accordingly  requested a            downward departure under   4A1.3,1 but the court refused.  On            appeal, we remanded  for clarification of the  court's basis,            in  light of United States v.  Lindia, 82 F.3d 1154 (1st Cir.                         _____________     ______            1996), which we had recently decided.   At resentencing Perez            again requested  departure under    4A1.3.   In response  the            court acknowledged Lindia, but stated that  it was limited to                               ______            permissible considerations, or  "factors," and that smallness            of predicates was  an impermissible consideration.   In light            of Congressional mandate, whether she was a small player  was                                            ____________________            1.  Adequacy of Criminal History Category (Policy Statement)                _____________________________________                                      . . . . .                      There  may  be  cases   where  the  court                      concludes  that  a  defendant's  criminal                      history   category  significantly   over-                      represents   the    seriousness   of    a                      defendant's  criminal   history  or   the                      likelihood that the defendant will commit                      further crimes.  An example might include                      the case of  a defendant  with two  minor                      misdemeanor  convictions  close   to  ten                      years prior to the instant offense and no                      other evidence of prior criminal behavior                      in the intervening period.  The court may                      conclude  that  the  defendant's criminal                      history  was  significantly  less serious                      than that of most defendants  in the same                      criminal history category  (Category II),                      and   therefore   consider   a   downward                      departure from the guidelines.                                         -3-            a  "forbidden factor,"  beyond consideration  for a  downward            departure.  We quote.                           A   statute,   28   U.S.C.   994(h),                      mandates  that  a  "career  offender"  as                      defined in the statute receive a sentence                      at or near  the maximum term  authorized.                      See   4B1.1, Background.   The definition                      ___                      of controlled substance offense specifies                      the  minimum  severity  of  offense  that                      qualifies  as one  of  the two  offenses,                      that,  at minimum,  are needed  to invoke                      the Career Offender provision.  Thus, the                      congressional mandate  does not  speak of                      the  medium-level   controlled  substance                      offense as the  heartland for determining                      whether a  person is  a Career  Offender.                      Instead, the  minimum level  offense that                      is sufficient to qualify  for meeting the                      Career  Offender   test  is   within  the                      heartland, by statutory mandate.                      The court added, as to which there is no complaint,            that it would have granted  a departure had it had discretion            to do so.  It did, however, once the sentence range  had been            calculated  without that departure, take the lowest permitted            as the final figure on the ground of Perez's relatively small            role in the offenses.  We have two questions:  (1)   Whether,            if an open  matter, the court's construction was  sound.  (2)            Whether,  in light of  Lindia, it was  open.   We answer both                                   ______            questions in the affirmative.                      This  court will not  overturn a refusal  to depart            from  the federal Sentencing Guidelines unless the sentencing            court abused its discretion.   See Koon v. United States, 116                                           ___ ____    _____________            S.  Ct.  2035,  2043  (1996).   At  the  same  time,  whether            consideration  of a given  factor is impermissible  under any                                         -4-            circumstances is a question of law, and we need not defer  to            the district court's resolution.                      We start with 28 U.S.C.   994(h), that requires the            Sentencing Commission to "assure" that the Guidelines produce            sentences for  certain three-time  ("career") offenders  that            are "at  or near  the maximum  term authorized" by  statute.2            The Court,  recognizing Congress's  maximum intent,  has held                                            ____________________            2.        The  Commission  shall  assure  that  the                      guidelines specify  a sentence to  a term                      of imprisonment  at or  near the  maximum                      term   authorized   for   categories   of                      defendants  in  which  the  defendant  as                      eighteen years old or older and--                           (1)  has  been convicted  of  a                           felony that is--                                 (A)   a  crime   of                                 violence; or                                 (B)    an   offense                                 described        in                                 section 401  of the                                 C o n t r o l l e d                                 Substances  Act (21                                 U.S.C.         841)                                 . . . ; and                           (2)    has   previously    been                           convicted of two  or more prior                           felonies, each of which is--                                 (A)   a  crime   of                                 violence; or                                 (B)    an   offense                                 described        in                                 section 401  of the                                 C o n t r o l l e d                                 Substances  Act (21                                 U.S.C.         841)                                 . . . .                                         -5-            this to  be the  term reached after  applying any  applicable            statutory enhancements.  United States v. LaBonte, 117 S. Ct.                                     _____________    _______            1673 (1997) (6-3),  rev'g United States  v. LaBonte, 70  F.3d                                _____ _____________     _______            1396  (1st  Cir.  1996) (2-1).    The  Commission implemented              994(h) with  Guidelines   4B1.1,3  that computes  sentences            for career  offenders based  on the  identical but  re-termed            "offense  statutory  maximum."    In  our  LaBonte  decision,                                                       _______            finding broad discretion in the Commission, we upheld a prior            version  of    4B1.1's  Application  Note   2  that  excluded            statutory  enhancements  from  the words  "offense  statutory            maximum."   Then, between our  decision and its  reversal, we            held, broadly,  in United  States  v. Lindia,  82 F.3d  1154,                               ______________     ______            1164-65 (1st Cir. 1996), that a district court might consider            a career  offender's criminal history "unusual,"  and outside            the "heartland" of  career offender cases,  and, if so,  that              4A1.3  allowed downward departure.   We  made no  review or            analysis of the type of criminal history involved, but simply            noted that this  departure turned on whether  career offender            treatment inaccurately reflected  criminal history within the                                            ____________________            3.  U.S.S.G.    4B1.1 provides that  a defendant is  a career            offender if (1) the defendant was at least eighteen years old            at the time  of the instant offense, (2)  the instant offense            of conviction is a felony that is either a crime  of violence            or a controlled  substance offense, and (3) the defendant has            at least  two prior felony  convictions of either a  crime of            violence or a controlled substance offense.                                         -6-            meaning of 18 U.S.C.   3553(b),4   id. at 1165, viz., whether                                               ___            a  career  offender defendant's  particular history  had been            adequately  considered by the  Commission in  formulating the            Guidelines.                      We note, by  way of initial observation,  at least,            something of  a puzzlement:   in  light of the  Congressional            stricture "at  or near,"  how to  reconcile Congress's  clear            purpose of maximum  sentences for three-time violent  or drug            offenders,  id.  at  1164,  with   allowing  adjustments5  or                        ___            downward departures by   4A1.3 which might be sizeable?  Does            that mean  that "at or  near" should be broadly  construed to            permit substantial reductions when they are applicable?  Does            it suggest possible non-recognition of  some type or types of                                            ____________________            4.  18 U.S.C.   3553(b) provides, in relevant part:                      (b) Application of guidelines in imposing                      a sentence. --  The court shall  impose a                      sentence  of  the  kind,  and within  the                      range,  [provided   by  the   guidelines]                      unless the court  finds that there exists                      an aggravating or mitigating circumstance                      of a kind, or to a degree, not adequately                      taken   into    consideration   by    the                      Sentencing Commission in  formulating the                      guidelines  that   should  result   in  a                      sentence different from that described.            5.  The  Guidelines  specifically  authorize  application  of              3E1.1 (acceptance  of responsibility) to  career offenders.            Whether   3B1.2 (mitigating role in instant offense) also may            apply is  unsettled.  Compare  United States v.  Beltran, 122                                  _______  _____________     _______            F.3d  1156, 1160 (8th  Cir. 1997); United  States v. Morales-                                               ______________    ________            Diaz, 925 F.2d  535, 540 (1st Cir. 1991);  with United States            ____                                       ____ _____________            v. Williams, 37  F.3d 82, 84 (2d Cir. 1994); United States v.               ________                                  _____________            Alvarez, 914 F.2d 213, 214-15 (10th Cir. 1990).            _______                                         -7-            adjustments or departures  applicable to ordinary defendants?            We find  no pertinent  legislative history.   In  LaBonte the                                                              _______            Court remarked, "This statutory phrase unquestionably permits            a  certain  degree  of flexibility  for  upward  and downward            departures and adjustments."   117 S. Ct. at 1678.   The word            "certain" was not defined.                      Since adjustments and departures could well achieve            a  substantial reduction from the maximum authorized term, it            is not surprising that  wide variations have developed  as to            what is perceived to be within "at or near" and, accordingly,            the degree  of flexibility  allowed to the  courts.6   In our            LaBonte  decision alone the  majority, stating there  must be            _______            some "play in the joints,"  accepted a sentence 61.4% of what            it thought the applicable statutory maximum, 70 F.3d at 1409-            10,  while  the dissenter  thought  even 72.8%  would  not be                                            ____________________            6.  See United States v. Novey,  78 F.3d 1483, 1487 n.5 (10th                ___ _____________    _____            Cir.  1996) (noting  that  a sentence  91%  of the  statutory            maximum was "near"  but that 73% was not),  cert. denied, 117                                                        ____________            S. Ct. 2407  (1997); United States v. Moralez,  964 F.2d 677,                                 _____________    _______            683  n. 5  (7th  Cir.) (noting  that  a sentence  83%  of the            statutory maximum "may well be short of being 'at or near the            maximum  term  authorized'"),  cert.  denied,  506  U.S.  903                                           _____________            (1992); see generally United States  v. Branham, 97 F.3d 835,                    _____________ _____________     _______            846-47 (6th Cir. 1996); United  States v. Hernandez, 79  F.3d                                    ______________    _________            584, 598-99  (7th Cir. 1996),  cert. denied, 117 S.  Ct. 2407                                           ____________            (1997); United States v.  Fountain, 83 F.3d 946, 952-53  (8th                    _____________     ________            Cir.  1996), cert.  denied, 117  S. Ct.  2412 (1997);  United                         _____________                             ______            States  v.  Gardner, 18  F.3d  1200, 1202  (5th  Cir.), cert.            ______      _______                                     _____            denied,  513 U.S. 879 (1994); United  States v. Norflett, 922            ______                        ______________    ________            F.2d 50, 53 n. 4 (1st Cir. 1990); United States v.  Hays, 899                                              _____________     ____            F.2d  515,  520-21  (6th Cir.)  (Merritt,  C.J., dissenting),            cert. denied,  498 U.S. 958  (1990); United States  v. Alves,            ____________                         _____________     _____            873 F.2d 495, 498 (1st Cir. 1989).                                         -8-            "near."   Id.  at 1418.    In the  present case  the district                      ___            court, supra, even while excluding smallness of predicates as                   _____            a ground for  departure, ended by imposing a  sentence 63% of            the  maximum  authorized  by  giving  Perez  the  benefit  of            accepting  responsibility.7   Had  it  been  free  to  depart            downward because of  the smallness of the offenses, the court            indicated that  it would  have sentenced Perez  to a  mere 21            months (9%), within the range applicable without   4B1.1.                      This  extended  recital, if  it does  nothing else,            reveals  a  picture  that supports  the  conclusion  that the            Commission, commanded to "assure" that the Guidelines produce            near maximum sentences  for the statutorily  defined category            of recidivists, did not  want to leave open  to the courts  a            departure from the statutory figure  based on the size of the            offenses.   We  believe  it  made this  clear  by adopting  a            single, broad definition of "felony."8  Second,  it adopted a            single  criminal history category rather than a sliding scale            based  on  the seriousness  of  the past  offenses.   Compare                                                                  _______                                            ____________________            7.  The  applicable  statutory  maximum  was  20  years  (240            months).  Under the Guidelines, Perez's applicable sentencing            range  initially was  210-262  months.    Crediting  her  for            accepting responsibility brought her applicable range to 151-            188 months.  The court then, within its discretion, chose the            low end,  151 months, 63%  of 240 months, for  the recognized            small role in the offenses.            8.  We  note that "felony" for   4B1.1 purposes includes both            large  and small offenses.  See   4B1.2, Commentary (defining                                        ___            felony as an "offense punishable by death or imprisonment for            a term exceeding one year.").                                         -9-              4B1.1 (assigning  criminal history  category VI  to "every"            career  offender "case"),  with    4A1.1 and  Ch.  5, pt.  A,                                       ____            Sentencing Table (determining  criminal history category  for            non-career offenders  by the number  of accumulated  criminal            history  points).  With such deliberate  uniformity, how is a            court suddenly  to determine, at  the low end when  all other            degrees  of seriousness  had  been  treated equally,  special            terms  for one  group?   And on  what basis?9   For  ordinary            offenders, where there  is a sliding  point scale, the  curve            may be thought to continue.  Here there is no curve at all.                       Perhaps the  best answer to  defendant's claim lies            in  the district court's proffered alternative:  removing her            from the career offender category entirely.  Thus if downward            departure   was  possible  based  on  the  smallness  of  the            offenses, we would have a  provision -- whose sole purpose is            special,   substantially  increased   sentences  for   repeat            offenders that meet a specific description -- completely read            out  of  the  Guidelines  by  a  judicial  finding  that  the            Commission  could not really have intended to include what it            said  it  did.    This  cannot be  the  purpose  of  downward            departures.   Rather,  we  hold  that  every  offender  whose            offenses  meet the  statutory career  offender definition  is                                            ____________________            9.  To put this in mathematical terms, suppose a  court rates            seriousness of the  offense at 1-20.   On what  basis can  it            determine that number  1 was unusual, and that the Commission            had not thought  of it, and that  if it had thought  it would            not have applied the even treatment it gave 2-20?                                         -10-            within  the intended  heartland, and  departure is  available            only  for  those personally,  and  not  by  the size  of  the            offenses,    demonstrating   an    absence   of    recidivist            tendencies.10                      This conclusion accords with the statutory purpose.            To speak  the  obvious,  the unique  feature  of  the  career            offender provision is its focus  on recidivism.  To return to            Labonte, 117 S. Ct. at 1677, "Congress has expressly provided            _______            enhanced maximum penalties  for certain categories of  repeat            offenders in an effort to  treat them more harshly than other            offenders."   Congress itself defined  the felonious  conduct            whose    repetition,     reflecting    habituality     and/or                                            ____________________            10.  We have no quarrel with  the principle that there may be            downward departures  because of  individual circumstances  in            literal  career offender cases  that indicate the  absence of            recidivism.   Cf. United  States v. Collins,  122 F.3d  1297,                          ___ ______________    _______            1306-07 (10th Cir. 1997) (age and infirmity of defendant, and            fact that  one predicate  conviction was  close to  ten years            prior to the instant offense); United States  v. Fletcher, 15                                           _____________     ________            F.3d 553,  557 (6th  Cir. 1994)  (combination of  defendant's            extraordinary  family   responsibilities,  the  age   of  his            predicates, the time intervening between the  predicates, and            his attempts to deal with drug  and alcohol problems); United                                                                   ______            States   v.  Shoupe,  988  F.2d  440,   447  (3d  Cir.  1993)            ______       ______            (defendant's  age  and  immaturity  at  time  of  predicates,            temporal  proximity of  predicates, and fact  that predicates            occurred nearly fifteen  years before  the instant  offense);            United  States v.  Clark, 8  F.3d 839,  845 (D.C.  Cir. 1993)            ______________     _____            (exposure  to  domestic  violence  and  childhood abuse  that            "significantly  affected   [defendant's]  predisposition   to            commit his first  two crimes"); United States  v. Bowser, 941                                            _____________     ______            F.2d 1019, 1024-25 (10th Cir. 1991) (defendant's young age at            the  time of his predicates, close  temporal proximity of the            predicates,  and  fact  that  defendant   had  been  punished            concurrently for  the predicates); United States v. Lawrence,                                               _____________    ________            916 F.2d 553,  554 (9th Cir. 1990)  (psychiatrist's testimony            that likelihood of recidivism was low).                                         -11-            incorrigibility, demands stiff punishment.   When, in another            circumstance, the  Commission took  a lower  maximum, and  we            approved it in LaBonte, the  Court reversed.  Here we do  not                           _______            think that the Commission even intended differentiation to be            possible.                      It is true  that some courts have, in part, allowed            consideration of the "minor nature" of the past offenses, but            none   has   adequately   established   a   connection   with            recidivism.11                      There remains the question whether it is open to us            to  make this  decision.   Clearly we  are not  foreclosed by            Koon,  a non-career  offender case, whose  general discussion            ____            relates  to matters not  fully considered by  the Commission.            Koon  does  not  advise  us  as to  what  factors  meet  that            ____            definition in a career offender  case.  We are more concerned            with our decision in Lindia, 82  F.3d at 1165, where we said,                                 ______            speaking generally,  that  a sentencing  court  might  depart            downward on the basis of a career offender's criminal history            if it considered it "unusual":                      When faced with a  departure motion in  a                      career-offender case, as  in other cases,                      the   court's   experience   and   unique                      perspective will  allow it  to decide  if                      the  case  before  it falls  outside  the                      guideline's    "heartland,"    warranting                      departure.                                             ____________________            11.   See United States v.  Spencer, 25 F.3d 1105, 1113 (D.C.                  ___ _____________     _______            Cir. 1994); United States v.  Smith, 909 F.2d 1164, 1169 (8th                        _____________     _____            Cir. 1990), cert. denied, 498 U.S. 1032 (1991).                        ____________                                         -12-            We believe our decision in Lindia did not rule it was open to                                       ______            a  court to  find  smallness  of offenses  to  make a  career            offender's case  unusual, or  go so far  as to  foreclose our            holding that some  parts of criminal history  have been fully            considered  by  the Commission.    If  it  be felt  that  our            unpublished memorandum order  on remand here12 could  be read            as saying the opposite, it is not the law of the case, and we            may reconsider.                      Affirmed.                      ________                            - Dissenting opinion follows -                                            ____________________            12.            In  view   of  our   recent  opinion                      clarifying that  a sentencing  court "may                      invoke    4A1.3 to  depart downward  from                      the  career   offender  category   if  it                      concludes that the  category inaccurately                      reflects the defendant's  actual criminal                      history,"  United States  v. Lindia,  No.                                 _____________     ______                      95-2200, slip  op. at 21 (1st  Cir. April                      18, 1996), together  with our uncertainty                      whether   the  district   court  made   a                      discretionary decision not  to depart or,                      instead,  viewed  its authority  as  more                      restricted than Lindia  allows, we vacate                                      ______                      the  sentence  and   remand  for  further                      consideration.                                         -13-                      LYNCH, Circuit Judge, dissenting.  With respect for                      LYNCH, Circuit Judge, dissenting.                             _____________            the views of my colleagues, I am compelled to dissent.  In my            mind, the  majority opinion misreads the  controlling statute            and  the United States Sentencing Guidelines, and is contrary            to the  precedent of the  Supreme Court, this court,  and the            decisions  of each  of the  other circuit  courts which  have            considered  the issue.    Our  holding  in United  States  v.                                                       ______________            Lindia, 82 F.3d  1154 (1st Cir. 1996)  directly controls this            ______            case, as does  the Supreme Court's holding in  Koon v. United                                                           ____    ______            States,  116  S. Ct.  2035  (1996), and  those  cases require            ______            reversal.                      The  sole issue to be decided is whether departures            under  U.S.S.G.     4A1.3  are  categorically prohibited  for            defendants classified  as career offenders  under U.S.S.G.               4B1.1 when the defendant's prior criminal record may over- or            understate the seriousness  of the offenses and  the district            court could find that this defendant was not in the heartland            of career  offenders.13   The district  court concluded  that                                            ____________________            13.  The  career  offender provisions  are  triggered by  two            prior convictions.  The quantities of drugs and Alina Perez's            role in  the prior offenses  are documented in the  record of            the district court.   Ms. Perez, a heroin  addict, sold drugs            for $60  to an  undercover police officer  in 1987,  and pled            guilty to  distribution of  heroin and cocaine  in 1988.   In            1991, Ms. Perez was arrested for distribution of cocaine.               In fairness  to the government,  it should  be noted  that            there were three other state court drug convictions which the            defendant successfully vacated before her federal sentencing.            In addition, after  her federal sentence, she  pled guilty to            another state cocaine distribution charge and received a five                                         -14-                                          14            such a categorical  prohibition deprived it of  discretion to            consider whether Perez's criminal history category overstated            the seriousness  of her  prior crimes  and therefore  whether            Perez could receive a downward departure.  The district court            decided that it  had no discretion to depart,  but said that,            if it  were  permitted,  it would  have  granted  a  downward            departure.14  On this question of law, the district court was            in  error;  it  was not  forbidden  from  considering whether            defendant's  offenses  fall  within  the  heartland  or  were            atypical.                      Offenders, such  as defendant Perez,  who have  two            prior felony  convictions for  controlled substance  offenses            are automatically placed in criminal history category VI (the            highest criminal  history category)  and assigned  an offense            level  determined by  the "offense  statutory maximum"  under                                            ____________________            year sentence concurrent with her federal sentence.               In this federal offense, Perez was arrested for possession            of 13.641  grams of heroin.   Without the application  of the            career  offender guidelines, her  sentencing range would have            been 18 to 24 months.  Because she was a career offender, her            sentencing range jumped to 151 to 188 months.            14.  It is settled law that  great deference is accorded to a            district court's determination  that a case falls  outside of            the heartland.   When,  as in this  case, the  district court            decides  that  a case  is  so  unusual  that a  departure  is            warranted, deference is  owed to its "special  competence" in            deciding  whether the  case before  it is  a heartland  case.            See, e.g.,  Koon, 116 S. Ct.  at 2046-47; Lindia, 82  F.3d at            _________   ____                          ______            1165; United States v. Rodriguez-Cardona, 924 F.2d 1148, 1157                  _____________    _________________            (1st  Cir. 1991).   The  majority's  concerns about  "special            treatment  for one  group" are  misplaced.   Every  departure            raises the same difficult issue of separating an unusual case            from ordinary cases.                                         -15-                                          15            U.S.S.G.   4B1.1.  The Guidelines sentencing table mandates a            sentencing range (in  this case 151 to 188  months) where the            defendant's  criminal  history  category  and  offense  level            intersect.  Section 4A1.3 allows  a sentencing court to grant            a  departure  from  the  sentencing  range  mandated  by  the            Guidelines  when  the  "defendant's   criminal  history  [is]            significantly  less serious than  that of most  defendants in            the same criminal history category . . . ."                      The  majority  concludes  that  departures under               4A1.3  based   on   an  offender's   criminal   history   are            categorically   forbidden  for   career   offenders.     This            conclusion derives  from  the  majority's  misreading  of  28            U.S.C.   994(h).  The  majority's conclusion depends upon its            assertion that   994(h) requires the Sentencing Commission to            "produce" sentences for three-time  ("career") offenders that            are "at  or  near the  maximum term  authorized" by  statute.            That  assertion is  not correct.   What the  statute actually            says is:  "The Commission  shall assure  that the  guidelines                                             ____________________________            specify a sentence  to a term of imprisonment at  or near the            _______            maximum  term authorized for [career offenders]." 28 U.S.C.              994(h) (emphasis added).                      The Guidelines do indeed  specify such sentences at            or near the maximum for career offenders in U.S.S.G.   4B1.1.            But  nothing in    994(h)  requires that  every  offender who                                                      _____            falls under  the Guidelines provisions  for career  offenders                                         -16-                                          16            receive the maximum  sentence.  The Guidelines  were designed            to  allow for departures when appropriate, and departures are            permissible  in exceptional  cases.  See  Lindia, 82  F.3d at                                                 ___  ______            1165   ("Section  994(h),   however,   is  directed   to  the            Commission's  duty  to  formulate  guidelines  pertaining  to            categories of defendants, not to sentencing courts faced with            individual  defendants."); United  States v.  Novey, 78  F.3d                                       ______________     _____            1483, 1489 (10th Cir. 1996) ("Section 994(h) does not mandate            that each individual defendant receive a sentence 'at or near            the  maximum term authorized.'   Rather, the  statute directs            the Commission to  assure that the guidelines  specify such a            term for 'categories of defendants' in which the defendant is            a recidivist violent felon or drug offender.").                      Because  of the misreading  by the majority,  it is            important  to  clarify  the  proper  method  for  determining            whether  a departure  is warranted  under  U.S.S.G.    4A1.3.            Section  4A1.3  is   concerned  with  the  accuracy   of  the            defendant's  criminal history  category.   Under  U.S.S.G.               4A1.3,  the point of reference for departures is a comparison            with  the other offenders in the defendant's criminal history            category.   The proper departure  inquiry in this case  is to            compare  the  defendant  to   the  "typical"  or  "heartland"            criminal history category VI offender.  As   4A1.3 says:                    There may be cases where the  court concludes                    that a defendant's  criminal history category                    significantly over-represents the seriousness                    of  a  defendant's  criminal  history or  the                                                          __                                         -17-                                          17                    likelihood  that  the defendant  will  commit                    further  crimes.  . .  .      The  court  may                    conclude   that   the   defendant's  criminal                                      ___________________________                    history was  significantly less  serious than                    _____________________________________________                    that of most defendants in the  same criminal                    _____________________________________________                    history category . . . and therefore consider                    ________________                    a downward departure from the guidelines.          U.S.S.G.   4A1.3 (emphasis added)                      The  question is  not whether  the  previous offenses          were "small" but  rather whether the offender's  criminal history          is  so "significantly  less serious"  than that of  the heartland          criminal  history category  VI offender  (not  just other  career          offenders) that a  departure is warranted.  Cf.  United States v.                                                      ___  _____________          Reyes, 8  F.3d 1379, 1384  (9th Cir. 1993) (proper  comparison is          _____          with other offenders).                      In  addition  to  its misreading  of  the controlling          statute, the  majority ignores the  plain language of  U.S.S.G.            4A1.3.  Section  4A1.3 repeatedly states that a  departure may be          granted  if "the criminal  history category does  not reflect the          seriousness  of  the  defendant's past  criminal  conduct  or the                                                                     __          likelihood  that   the  defendant  will   commit  other  crimes."          (emphasis added).   The Guideline's use of the  word "or" instead          of "and" is telling.  Under   4A1.3, a defendant's "past criminal          conduct" may alone justify a departure, apart from his likelihood                       _____          of  recidivism.    The  majority's  attempt  to  distinguish  the          overwhelming  precedent contrary to  its decision on  the grounds          that these  other  cases  did not  establish  a  connection  with          recidivism is  contrary to the plain meaning of    4A1.3.  In any                                         -18-                                          18          event, an offender's  criminal past is an excellent  (perhaps the          best) predictor of his likelihood of recidivism.                      Nor does the majority consider that upward departures          from criminal  history category VI  are explicitly endorsed  by            4A1.3, based on  "the nature of the prior offenses."   This court          has  routinely  approved  such   upward  departures  for   repeat          offenders  based on  their prior  bad  acts.   See, e.g.,  United                                                         _________   ______          States v. Black, 78 F.3d 1,  8 (1st Cir. 1996); United States  v.          ______    _____                                 _____________          Parkinson, 44 F.3d  6, 10 (1st  Cir. 1994).   Under the  majority          _________          opinion,    4A1.3 becomes a one-way rachet; upward departures may          be granted based on prior  offenses, but not downward departures.          The plain language  of   4A1.3 demonstrates that,  except for the          specific exception of criminal history category I offenders, both          upward  and  downward  departures   are  contemplated.    Neither          Congress nor the  Sentencing Commission intended  such a lack  of          even-handedness.                      In addition to misreading the controlling statute and          the language of  the Guidelines, the majority  also misinterprets          controlling precedent.  The majority incorrectly implies that the          Supreme Court's recent decision in  United States v. LaBonte, 117                                              _____________    _______          S.  Ct.  1673 (1997)  undercuts  our  holding  in Lindia  that  a                                                            ______          sentencing court may grant a career offender a downward departure          if  the  court  concludes  that  the  guideline  career  offender          criminal history category  inaccurately reflects the  defendant's                                         -19-                                          19          criminal history.  LaBonte has little bearing on the issue to  be                             _______          decided in this case.                      LaBonte  addresses  the  offense  level  axis of  the                      _______          sentencing table,  not the criminal  history category axis.   The          issue in LaBonte was not departures but the meaning of the phrase                   _______          "offense  statutory  maximum"  for   purposes  of  computing   an          offender's  offense  level.    The  Court  was  asked  to  decide          "whether,  by 'maximum term  authorized,' Congress meant  (1) the          maximum  term available for  the offense of  conviction including          any  applicable statutory sentencing  enhancements, . .  . or (2)          the maximum  term available  without such enhancements  . .  . ."          LaBonte, 117 S. Ct. at 1675.          _______                      LaBonte concerned the structure of the Guidelines and                      _______          determined that, in order to assure that the  "guidelines specify                                                         __________________          a sentence to a term of imprisonment  at or near the maximum term          authorized  for [career offenders]"  as mandated  by 28  U.S.C.            994(h),  the phrase "maximum  term authorized" must  "include all          applicable statutory  sentencing enhancements."   LaBonte, 117 S.                                                            _______          Ct.  at  1675.     LaBonte  does  not,  however,   foreclose  the                             _______          possibility of departures  for unusual career offenders  who fall          outside the heartland.                        Indeed, LaBonte cuts  against the majority's holding.                              _______          In   LaBonte,  the   Supreme  Court   remarked   that      994(h)               _______          "unquestionably permits a certain degree of flexibility for . . .          downward departures . . . ."   LaBonte, 117 S. Ct. at 1678.   But                                         _______                                         -20-                                          20          the Court was careful to point out that the "pertinent issue"  in          the case  was  "'not  how  close  the sentence  must  be  to  the          statutory maximum,  but to  which  statutory maximum  it must  be          close.'"  Id. at 1678 (quoting United States v. Fountain, 83 F.3d                    ___                  _____________    ________          946, 952 (8th Cir. 1996)).   LaBonte's reference to departures is                                       _______          perhaps  dicta,  but  this dicta  further  demonstrates  that the          majority misinterprets the case.                      This  court has already decided the issue, in Lindia,                                                                    ______          against the majority position.  This court decided in Lindia that                                                                ______          "a sentencing  court may invoke    4A1.3 to depart  downward from          the  career-offender category if  it concludes that  the category          inaccurately reflects the defendant's actual criminal history . .          . ."   Lindia, 82 F.3d at  1165.  Lindia addressed  precisely the                 ______                     ______          issue we face  in this case.   Lindia noted that our  circuit has                                         ______          long recognized  that when  a case  falls outside the  applicable          guideline's heartland,  a  departure may  be warranted.   Id.  at                                                                    ___          1164.   Lindia recognized that  there were some factors  that had                  ______          been "explicitly  rejected as permissible  grounds for departure"          but held that the Commission  had "not designated as a 'forbidden          departure' the  overrepresentation of a criminal history category          in career offender cases."  Id. at 1164-65.                                      ___                      Lindia's holding  is consistent with the  holdings of                      ______          each of the other circuit courts that have considered this issue,          both  before and  after Lindia  was decided.   See,  e.g., United                                  ______                 __________  ______          States v. Collins, 122 F.3d 1297, 1304 (10th Cir. 1997) ("[F]or a          ______    _______                                         -21-                                          21          defendant  who technically  qualifies as  a  career offender  but          whose criminal history and likelihood of recidivism significantly          differ from  the heartland  of career  offenders, the  sentencing          court  may  consider   a  departure  from  the   career  offender          category.");  United States v. Spencer, 25  F.3d 1105, 1113 (D.C.                        _____________    _______          Cir. 1994); United States v. Fletcher, 15 F.3d 553, 557 (6th Cir.                      _____________    ________          1994); Reyes,  8 F.3d  at 1383-84; United  States v.  Shoupe, 988                 _____                       ______________     ______          F.2d 440, 447  (3d Cir. 1993); United States v.  Rogers, 972 F.2d                                         _____________     ______          489, 493-94  (2d Cir. 1992);  United States v. Beckham,  968 F.2d                                        _____________    _______          47, 54 (D.C. Cir. 1992) (agreeing with "the unanimous judgment of          the  other circuit  courts to  have considered  the issue  that            4A1.3 authorizes  a  downward  departure  when  criminal  history          category  VI, assigned pursuant to the career offender guideline,          significantly  overrepresents the  seriousness  of a  defendant's          past  criminal conduct and the likelihood of recidivism") (citing          cases); United States v. Lawrence, 916 F.2d 553, 554-55 (9th Cir.                  _____________    ________          1990); United States v. Brown, 903 F.2d 540, 545 (8th Cir. 1990).                 _____________    _____          In both Spencer and Reyes, our  sister circuits held specifically                  _______     _____          that  departures for  career offenders  are  permissible under             4A1.3  when the  defendant's predicate  offenses  were relatively          minor.                      The majority opinion is also directly contrary to the          Supreme Court's holding in Koon, and to the intent of Congress as                                     ____          interpreted  by Koon.   Koon  explained that  "a  federal court's                          ____    ____          examination of whether a factor  can ever be an appropriate basis                                         -22-                                          22          for  departure is limited  to determining whether  the Commission          has proscribed,  as a  categorical matter,  consideration of  the          factor.  If the answer to the question is no . . . the sentencing          court  must determine  whether the  factor, as  occurring in  the          particular circumstances, takes the case outside the heartland of          the applicable Guideline."  Koon, 116 S. Ct.  at 2051.  Thus if a                                      ____          factor  is  not expressly  forbidden,  it  may  at least  in  the          exceptional  case serve  as  the  basis for  a  departure.   Koon                                                                       ____          explicitly  states  that "for  the  courts to  conclude  a factor          [other than an explicitly forbidden factor such as race] must not          be considered under any circumstances  would be to transgress the          policymaking authority vested in the Commission."  Id. at 2050.                                                             ___                      In Koon the Supreme Court  expressly held that only a                         ____          few  reasons  for  departure are  entirely  prohibited  under the          Guidelines, as the Guidelines do  not limit the kinds of factors,          whether  or not mentioned  anywhere else in  the Guidelines, that          could constitute grounds  for departure in an unusual  case.  The          only  departure factors entirely forbidden by the Guidelines are:          race, sex,  national origin,  creed,  religion and  socioeconomic          status, see  U.S.S.G.   5H1.10, lack of  guidance as a youth, see                  ___                                                   ___          U.S.S.G.    5H1.12,  drug or alcohol  dependence, see  U.S.S.G.                                                              ___          5H1.4,  and  economic  duress,  see      5K2.12.    In  contrast,                                          ___          departures  for atypical  criminal  history,  far  from  being  a          forbidden  factor, are specifically  encouraged under  U.S.S.G.            4A1.3.   See Collins,  122 F.3d at  1304 ("Because  section 4A1.3                   ___ _______                                         -23-                                          23          provides an encouraged basis for departure not already taken into          account by the  Commission, over-representation of a  defendant's          criminal history  or likelihood for recidivism always  will be an          approved ground for departure."); Lindia, 82 F.3d at 1165.                                            ______                      The majority  holds  that,  because  the  defendant's          prior drug felonies are the reason she is categorized as a career          offender,  her prior crimes  were already "adequately  taken into          account  by   the  Sentencing   Commission  in   formulating  the          guidelines," U.S.S.G.   5K2.0,  and could not therefore  serve as          the basis of a departure.   Koon explicitly addressed this issue,                                      ____          and decided  that if a  Guideline already takes a  certain factor          into account, then the factor  must be present to an "exceptional          degree" before a departure may be granted.  But Koon, contrary to                                                          ____          the reasoning  employed by  the majority, did  not rule  out such          departures entirely.   Under Koon, if an encouraged factor (e.g.,                                       ____          criminal history under   4A1.3)  is already taken into account by          a  Guideline  (as  is criminal  history  in  the  career offender          guideline),  "the  court  should depart  only  if  the factor  is          present to an  exceptional degree or in some other  way makes the          case  different  from  the  ordinary case  where  the  factor  is          present."  Koon, 116 S. Ct. at 2045.  See also Lindia, 82 F.3d at                     ____                       ________ ______          1164-65; United States v. Rivera,  994 F.2d 942, 947-49 (1st Cir.                   _____________    ______          1993).  Under Koon, the majority's holding that  departures under                        ____             4A1.3 for  career offenders  are precluded  by  implication is                                         -24-                                          24          incorrect.   Departures for career offenders under   4A1.3 should          be extremely rare, but it is wrong to forbid them entirely.                      Koon's   holding   that  only   expressly   forbidden                      ____          departure factors  may never serve  as the basis for  a departure          has been, until today, regularly followed by this court, and thus          the  majority's  position  is  in  conflict  with  other  of  our          precedent.  See, e.g., United States v. Brewster, 127 F.3d 22, 26                      _________  _____________    ________          (1st Cir.  1997) (noting that  it is a "fundamental  principle of          departure  jurisprudence: that,  in the  absence  of an  explicit          proscription,  courts generally  should not  reject categorically          any factor as a potential departure predicate"); United States v.                                                           _____________          Clase-Espinal, 115 F.3d 1054, 1060 (1st Cir. 1997) (noting Koon's          _____________                                              ____          instruction that "with few  exceptions, departure factors  should          not  be ruled  out on  a  categorical basis");  United States  v.                                                          _____________          Hardy,  99 F.3d  1242,  1249  (1st Cir.  1996)  (stating that  "a          _____          departure  criterion  cannot  be  deemed   impermissible  in  all          circumstances    unless   categorically    foreclosed   by    the          Commission").  In  Brewster, the court  said that a  "fundamental                             ________          lesson" of prior  First Circuit caselaw is "'that  a court should          not infer from  inexplicit Guidelines language, or  from language          that  authorizes use  of a  particular factor  in some  cases, an          absolute barrier in principle against using certain other factors          as  grounds for departure in other  unusual circumstances.'"  127          F.3d at 27  (quoting United States  v. Doe, 18  F.3d 41, 47  (1st                               _____________     ___          Cir. 1994)).                                         -25-                                          25                      In  United States  v. Olbres,  99  F.3d 28  (1st Cir.                          _____________     ______          1996),  this court  interpreted  Koon as  dictating  that even  a                                           ____          discouraged factor such as a defendant's vocational skills is not          categorically  prohibited as a basis for a departure.  See id. at                                                                 ___ ___          34-35   ("Categorical   interpretations    'would   nullify   the          Commission's treatment  of particular  departure factors and  its          determination that, with few exceptions, departure factors should          not be ruled out  on a categorical  basis.' . .  . [E]ven if  the          present  case  merely  concerned  vocational  skills,  a  per  se          approach  would be  inappropriate and  the  district court  would          still  have  to  consider  whether  the  case  was  in  some  way          'different from the ordinary case where the factor is present.'")          (quoting  Koon,  116  S. Ct.  at  2045,  2051).   In  contrast to                    ____          vocational   skills,   departures   under      4A1.3      for  an          overrepresentative  criminal  history category  are  specifically          encouraged under  the Guidelines.   As Olbres  and a host  of our          __________                             ______          other  opinions point out,  Koon rejected categorical  denials of                                      ____          departures based on all  but a few explicitly  forbidden factors,          such as sex and race.                      Departures under   4A1.3  for career offenders  based          on the nature of the  defendant's involvement and the quantity of          drugs in  the prior  offenses are  not categorically  foreclosed.          The majority opinion  effectively overrules  Lindia, something  a                                                       ______          subsequent  panel does  not have  the power  to do.    See United                                                                 ___ ______          States v. Graciani, 61 F.3d  70, 75 (1st Cir. 1995); Williams  v.          ______    ________                                   ________                                         -26-                                          26          Ashland Eng'g  Co., 45 F.3d 588, 592 (1st  Cir. 1995).  Lindia is          __________________                                      ______          directly on point,  and has not been undercut  by the controlling          authority of LaBonte.  Cf. Stella v.  Kelley, 63 F.3d 71, 74 (1st                       _______   ___ ______     ______          Cir. 1995).                      The  majority  compounds its  error  by clouding  its          holding with  a  distinction  based on  the  "type"  of  criminal          history involved.   The suggested distinction  between "personal"          versus  "offense" criminal  history is  a  distinction without  a          difference.   An offender's criminal history category is computed          based  on that person's  prior criminal acts,  i.e., the offenses          the  person  committed.   The  offenses  in which  the  defendant          participated define an offender's criminal history.                       ______                      Our  role is  limited to  deciding an  issue of  law:          whether a  departure based on  the character  of the  defendant's          prior  offenses is  ever permissible  for career  offenders.   In          accordance  with Koon, our  precedent, and  the precedent  of our                           ____          sister circuits, I would answer this question in the affirmative.          The Supreme Court  in Koon has committed, in  the first instance,                                ____          the  decision  whether  to  exercise  this  discretion  to  grant          allowable departures to the district court.  See Koon, 116 S. Ct.                                                       ___ ____          at 2046-47.                      I would  reverse the  district court  and remand  the          case for resentencing.                                         -27-                                          27
