
USCA1 Opinion

	




          June 23, 1993                              UNITED STATES COURT OF APPEALS                                   FOR THE FIRST CIRCUIT                                   _____________________               No. 92-1749                                      UNITED STATES,                                         Appellee,                                            v.                                       MIRNA RIVERA,                                   Defendant, Appellant.                                        __________               No. 92-2167                                      UNITED STATES,                                        Appellant,                                            v.                                       ROBERT ADAMO,                                   Defendant, Appellee.                                   _____________________                                       ERRATA SHEET                    Please make the following corrections in the opinion in               the above case released on June 4, 1993:               Page 13,  2nd  line  from  bottom:    Insert  the  following               language after the word "state":                    that "lack of guidance  as a youth" cannot justify                    departure, U.S.S.G.   5H1.12, p.s.,               Page  14, lines 4 &  5: insert the  following language after               "  5K2.12" and after "  4A1.3":                    ,p.s.               Page 14, line 10:  change the word "eight" to "nine"               Page 16, last line:  change "Guideline" to "Guidelines"                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1749                                    UNITED STATES,                                      Appellee,                                          v.                                    MIRNA RIVERA,                                Defendant, Appellant.                                   _______________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Francis J. Boyle, U.S. District Judge]                                             ___________________                                ______________________        No. 92-2167                                    UNITED STATES,                                      Appellant,                                          v.                                    ROBERT ADAMO,                                 Defendant, Appellee.                                   ________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                     Campbell and Bownes, Senior Circuit Judges.                                          _____________________                                 ____________________            John M. Cicilline for appellant, Mirna Rivera.            _________________            Margaret E.  Curran, Assistant United  States Attorney, with  whom            ___________________        Lincoln  C.  Almond, United  States  Attorney,  and Zechariah  Chafee,        ___________________                                 _________________        Assistant  United States  Attorney,  were on  brief for  appellee, the        United States of America in No. 92-1749.            Margaret E.  Curran, Assistant United  States Attorney, with  whom            ___________________        Lincoln  C.  Almond,  United  States  Attorney,  and  Seymour  Posner,        ___________________                                   _______________        Assistant  United States  Attorney, were on  brief for  appellant, the        United States of America in No. 92-2167.            Eugene V. Mollicone with whom William  A. Dimitri, Jr. and Dimitri            ___________________           ________________________     _______        & Dimitri were on brief for appellee, Robert Adamo.        _________                                 ____________________                                     June 4, 1993                                 ____________________                       BREYER, Chief  Judge.   Each of these  two appeals                               ____________             concerns  the district  court's power  to impose  a sentence             that departs from the Sentencing Guidelines.  The first case             involves  Mirna  Rivera,  a  single mother  of  three  small             children.   Ms.  Rivera was  convicted of  carrying about  a             pound of cocaine from  New York to Providence.   She appeals             her thirty-three month sentence of imprisonment.  She argues             that the  district court  would have departed  downward from             the minimum  thirty-three month  Guidelines prison term  but             for the court's view that it lacked the legal "authority" to             depart.   She says that this view is legally "incorrect," 18             U.S.C.    3742(f)(1),  and she  asks  us  to set  aside  her             sentence.                       The second case involves a union official,  Robert             Adamo, who embezzled about  $100,000 from his union's Health             and Welfare Fund.  The district court departed downward from             the  fifteen  to  twenty-one  month  prison  term  that  the             Guidelines  themselves would  have required.   Instead,  the             court imposed a term of probation  without confinement.  The             court  said that it was departing downward so that Mr. Adamo             could  continue to work and to make restitution to the Fund.             The  Government   appeals.      It   argues   that   Adamo's             circumstancesare insufficientlyunusualtowarrantthedeparture.                                         -4-                                          4                       We agree with  the appellants in  both cases.   In             our view, the  district court sentencing Ms. Rivera  held an             unduly narrow  view of its  departure powers.   The district             court sentencing Mr.  Adamo failed to  analyze the need  for             departure in the  way that  the law requires.   We  consider             both  cases in this single opinion because doing so may help             to    illustrate   an   appropriate   legal   analysis   for             "departures."   We  shall first  set forth  our view  of the             portion  of the law here applicable; and we shall then apply             that law to the two appeals.                                          I                                      Departures                                      __________                       The basic theory of the Sentencing Guidelines is a             simple  one.   In  order  to  lessen  the  degree  to  which             different judges  imposed different sentences  in comparable             cases,   an   expert  Sentencing   Commission   would  write             Guidelines,   applicable   to   most   ordinary   sentencing             situations.  See S. Rep.  No. 225, 98th Cong., 2d Sess.  38,                          ___             51, 161  (1984), reprinted in 1984  U.S.C.C.A.N. 3182, 3221,                              ____________             3234, 3344.  In an ordinary situation, the statutes, and the             Guidelines themselves, would require  the judge to apply the             appropriate guideline  -- a  guideline  that would  normally             cabin,  within fairly  narrow limits,  the judge's  power to                                         -5-                                          5             choose  the  length  of   a  prison  term.    18   U.S.C.                3553(a),(b).  Should the judge face a situation that was not             ordinary,  the  judge  could   depart  from  the  Guidelines             sentence,  provided  that  the  judge then  sets  forth  the             reasons for departure.   18 U.S.C.   3553(b),(c).    A court             of appeals would review the departure  for "reasonableness."             18  U.S.C.   3742.  And, the Commission itself would collect             and study both the district courts' departure determinations             and the courts of appeals' decisions, thereby learning about             the Guidelines' actual workings  and using that knowledge to             help revise or clarify  the Guidelines for the future.   See                                                                      ___             S. Rep. No. 225, 98th Cong.,  2d Sess. 80, 151, reprinted in                                                             ____________             1984 U.S.C.C.A.N.  at 3263,  3334;  U.S.S.G. Ch.  1, Pt.  A,             intro. comment 4(b).                       This  basic   theory  is  embodied   in  statutory             provisions and in  the Guidelines themselves.  We believe it             important to refer to this theory in explaining our own view             of the  legal provisions  concerning departures, and  of how             both  district  courts and  courts of  appeals are  to apply             them.                                          A                                     The Statute                                     ___________                                         -6-                                          6                       The Sentencing Statute itself sets forth the basic             law  governing departures.   It  tells the  sentencing court             that it                       shall impose a sentence of the kind, and                       ____________                       within the range  . . .  established for                       the   applicable  category   of  offense                       committed by the applicable  category of                       defendant as set forth in the guidelines                       . . . .              18 U.S.C.    3553(b) (incorporating 18  U.S.C.   3553(a)(4))             (emphasis added).  The statute goes on immediately to create             an exception  for departures  by adding that  the sentencing             court shall "impose" this Guidelines sentence                       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.             18  U.S.C.   3553(b) (emphasis  added).    If the sentencing             court  makes   this  finding  and  sentences   "outside  the             [Guidelines] range," it must                        state in  open court . .  . the specific                       reason for the  imposition of a sentence                       different  from  that described  [in the                       guidelines].              18  U.S.C.    3553(c).   The  defendant  may then  appeal an             upward departure,  and the Government may  appeal a downward             departure.    18  U.S.C.    3742(a),(b);  United  States  v.                                                       ______________                                         -7-                                          7             Pighetti,  898  F.2d 3,  4 (1st  Cir. 1990)  (beneficiary of             ________             departure  decision  lacks  standing "to  complain  that the             deviation should have been greater").  On appeal, if                        the court of appeals determines that the                       sentence . . . is unreasonable, . . . it                                         ____________                       shall  state  specific  reasons for  its                       conclusions  and  .  . .  set  aside the                       sentence and remand the case for further                       sentencing    proceedings   with    such                       instructions  as   the  court  considers                       appropriate.             18 U.S.C.   3742(f) (emphasis added).                       The upshot, as  we have said, is  that in ordinary             cases  the district  court  must apply  the Guidelines.   In             other cases,  the court  may depart  provided that it  gives             reasons for the departure and that the resulting sentence is             "reasonable."  The statute refers to those "other cases," as             those  where  "there  exists an  aggravating  or  mitigating             circumstance of a kind, or to a degree, not adequately taken             into consideration  by the Sentencing Commission."   But, as             we  shall  see in  a moment,  in  many cases  this statutory             limitation, as a practical matter, will have limited impact,                              _________             because  the  Commission  itself  admits  that  it  has  not             adequately considered "unusual" cases.                                          B                                    The Guidelines                                    ______________                                         -8-                                          8                       The  Guidelines deal with departures in four basic             ways.                            1.    Cases  Outside the  "Heartland."    The                                  ______________________________             Introduction to the Guidelines (which the Commission calls a             "Policy Statement") makes an important distinction between a             "heartland case"  and an  "unusual case."   The Introduction             says that the                       Commission intends the sentencing courts                       to treat each guideline as carving out a                       "heartland,"  a  set  of  typical  cases                       embodying   the    conduct   that   each                       guideline describes.             U.S.S.G.  Ch.  I,  Pt.  A,  intro.  comment.  (4)(b).    The             Introduction goes on to say that when                       a  court finds an  atypical case, one to                       which     a     particular     guideline                       linguistically   applies,    but   where                       conduct  significantly differs  from the                       norm, the  court may consider  whether a                       departure is warranted.             Id.  The Introduction  further adds that, with a  few stated             ___             exceptions,                       the Commission does not intend  to limit                       the  kinds  of factors,  whether  or not                       mentioned    anywhere   else    in   the                       guidelines,   that    could   constitute                       grounds  for  departure  in  an  unusual                       case.             Id.             ___                                         -9-                                          9                       The Introduction thus makes clear that (with a few             exceptions)  a case  that falls  outside  the linguistically             applicable  guideline's  "heartland"   is  a  candidate  for                                                           _________             departure.  It is,  by definition, an "unusual case."   And,             the sentencing court may then go on to consider, in light of             the sentencing  system's purposes, see 18  U.S.C.   3553(a),                                                ___             (and the Guidelines themselves) whether or not the "unusual"             features of the case justify departure.                         It  should  now be  apparent  why  we believe  the             statutory  language  "adequately  taken into  consideration"             sometimes has little practical importance.  The statute says             that the  sentencing court considering a  departure must ask             whether the Sentencing Commission has "adequately taken into             consideration"  the  aggravating or  mitigating circumstance             that  seems to  make a  case unusual.   But,  the Commission             itself  has explicitly said that  (with a few exceptions) it                                    ____             did    not   "adequately"    take   unusual    cases   "into                                                 _______             consideration."    Of course,  deciding  whether  a case  is             "unusual"  will  sometimes  prove  a  difficult  matter  (in             respect  to which particular  facts, general experience, the             Guidelines  themselves, related  statutes,  and the  general             objectives of sentencing  all may be  relevant).  But,  once             the  court, see  pp. 15-17,  infra, has  properly determined                         ___              _____                                         -10-                                          10             that  a  case  is, indeed,  "unusual,"  the  case becomes  a             candidate  for departure,  for  the  Commission  itself  has             answered the statutory "adequate consideration" question.                       The initial version of the Guidelines, at the risk             of redundancy, made this fact absolutely clear.  It stated:                            The new  sentencing statute permits                       a  court  to  depart  from  a guideline-                       specified  sentence  only when  it finds                       "an     aggravating    or     mitigating                       circumstance   .  .   .  that   was  not                       adequately  taken into  consideration by                       the Sentencing Commission. . . ."  Thus,                                                          _____                       in   principle,   the   Commission,   by                       ________________________________________                       specifying   that   it  had   adequately                       ________________________________________                       considered  a  particular factor,  could                       ________________________________________                       prevent a court from using it as grounds                       ________________________________________                       for departure.   In this initial  set of                       ________________________________________                       guidelines, however, the Commission does                       ________________________________________                       not  so  limit  the   courts'  departure                       ________________________________________                       powers.                       _______             U.S.S.G. Ch.  I, Pt. A,  intro. comment. (4)(b)  (Oct. 1987)             (emphasis added)  (citation omitted).  In  later versions of             the  Guidelines, the  Commission eliminated  the underscored             language.   But, since  the "unusual case"  statement (i.e.,                                                                    ____             the statement  that the "Commission does not intend to limit             the kinds of factors . . . that could constitute grounds for             departure in  an unusual case") expresses  the same thought,             the  excision  presumably  reflected  an  intent  to   avoid             redundancy,  not  to  change  the meaning  of  the  section.             Indeed,  the  Commission has  not  suggested  any intent  to                                         -11-                                          11             change its meaning.   See U.S.S.G. App. C, amend.  307 (Nov.                                   ___             1990)   ("language  concerning   what  the   Commission,  in             principle, might have done is deleted as unnecessary, but no             substantive change is made").  Thus, (with a few exceptions)             the  law  tells the  judge,  considering  departure, to  ask             basically, "Does  this case fall within  the 'heartland,' or             is it an unusual case?"                            2.    Encouraged  Departures.     In  certain                                  ______________________             circumstances,  the  Guidelines  offer the  district  court,             which is considering whether  to depart, special assistance,             by  specifically encouraging  departures.   Part 5K  lists a             host  of  considerations that  may  take  a particular  case             outside the "heartland" of  any individual guideline and, in             doing  so, may warrant a  departure.  See  U.S.S.G.   5K2.0,                                                   ___             p.s.   The individual guidelines  do not  take account,  for             example,  of  an  offender's  "diminished  capacity,"  which             circumstance,  in  the  Commission's  view   would  normally             warrant  a downward departure.  U.S.S.G.   5K2.13, p.s.  Nor             do  certain guidelines (say, immigration offense guidelines)             take account of, say, use of a gun, which circumstance would             remove  the situation  (the  immigration offense)  from that             guideline's "heartland" and would normally warrant an upward             departure.    U.S.S.G       5K2.0,  5K2.6,  p.s.    Specific                                         -12-                                          12             individual  guidelines may  also encourage departures.   The             guideline governing transportation of persons for prohibited             sexual conduct, for example, recommends a downward departure             of eight  levels where  the offense involves  neither profit             nor  force.  U.S.S.G.   2G1.1, comment. (n.1).  A sentencing             court  facing  such  non-heartland  circumstances  can  feel             confident, because  of this encouragement,  that a departure             would not be "unreasonable."  18 U.S.C.   3742(f).                             3.   Discouraged Departures.   The Guidelines                                 ______________________             sometimes  discourage departures.    Part  5H, for  example,             lists  various "specific offender"  characteristics, such as             age,   education,  employment   record,   family  ties   and             responsibilities,  mental  and   physical  conditions,   and             various good works.  The  Guidelines say that these features             are  "not ordinarily  relevant"  in determining  departures.                       __________             U.S.S.G.  Ch. 5,  Pt. H  (emphasis added).    The Commission             thereby recognizes that (1)  the individual guidelines (with             a few exceptions) do not provide adjustments reflecting such             circumstances, yet (2)  this fact alone  does not make  such                                                           ___             circumstances  automatically  sufficient   to  transform   a             "heartland"  case   into  an  "unusual"   case  outside  the             heartland.                                           -13-                                          13                       At the same  time, the Commission  recognizes that             such circumstances  could remove a case  from the heartland,                                 _____             but only if they are present  in a manner that is unusual or             special,  rather  than "ordinary."    See  United States  v.                                                   ___  _____________             Merritt, No. 91-1637,  slip op.  at 25-26 (2d  Cir. Feb.  9,             _______             1993).  It  may not be unusual, for example,  to find that a             convicted  drug  offender is  a  single  mother with  family             responsibilities,   but,  at  some  point,  the  nature  and             magnitude  of family  responsibilities (many  children? with             handicaps?  no  money? no  place  for children  to  go?) may             transform the  "ordinary" case of such  circumstances into a             case that is not at all ordinary.                         Thus, a sentencing  court, considering whether  or             not  the presence  of  these "discouraged"  factors warrants             departure, must  ask  whether  the  factors  themselves  are             present  in  unusual kind  or  degree.   The  Commission, in             stating that those factors do  not "ordinarily" take a  case             outside the heartland, discourages,  but does not absolutely             forbid, their use.   See, e.g., Merritt, slip op.  at 25-26;                                  ___  ____  _______             United States  v. Deigert,  916 F.2d 916,  918-19 (4th  Cir.             _____________     _______             1990).  But see United States v. Thomas, 930  F.2d 526, 529-                     _______ _____________    ______             30   (7th  Cir.)  (forbidding  departures  based  on  family                                         -14-                                          14             responsibilities, except  where probation  or  fines are  at             issue), cert. denied, 112 S. Ct. 171 (1991).                      ____________                            4.  Forbidden Departures.  The Commission has                                ____________________             made several explicit exceptions to the basic principle that             a sentencing court can consider any "unusual case" (any case             outside the  heartland) as a  candidate for departure.   The             Guidelines  state that "lack of  guidance as a youth" cannot             justify   departure,  U.S.S.G.      5H1.12,  p.s.,   that  a             sentencing court  "cannot take  into account as  grounds for             departure" race, sex, national  origin, creed, religion, and             socio-economic  status.    U.S.S.G.     5H1.10,  p.s.    The             Guidelines  also state that drug  or alcohol abuse  is not a             reason for  imposing a sentence below  the Guidelines range,             U.S.S.G      5H1.4,  p.s.,  and   that  personal   financial             difficulties and economic pressure  upon a trade or business             do  not warrant a decrease  in sentence.  U.S.S.G.   5K2.12,             p.s.; cf. Williams v.  United States, 112 S. Ct.  1112, 1117                   ___ ________     _____________             (1992)  (under U.S.S.G.    4A1.3,p.s.,  prior arrest  record             cannot provide reliable  evidence of prior criminal  conduct             warranting upward  departure).  Thus, even  if these factors             make  a  case "unusual,"  taking  it  outside an  individual             guideline's heartland,  the sentencing court is  not free to             consider departing.   But,  with these nine  exceptions, the                                         -15-                                          15             sentencing court is  free to consider,  in an unusual  case,             whether or  not  the factors  that  make it  unusual  (which             remove it from the heartland) are present in sufficient kind             or degree to warrant  a departure.  See U.S.S.G. Ch.  I, Pt.                                                 ___             A,  intro. comment. 4(b).  The court retains this freedom to             depart whether such departure is encouraged, discouraged, or             unconsidered by the Guidelines.                                         -16-                                          16                                          C                      The Sentencing Court's Departure Decision                      _________________________________________                       Given the  statutory provisions, and  the relevant             Guidelines statements,  we suggest  (but we do  not require)             that, as  an initial matter, a  sentencing court considering             departure analyze the case along the following lines:                       1)   What   features   of   this   case,                       potentially,   take   it   outside   the                       Guidelines' "heartland" and make of it a                       special, or unusual, case?                       2)   Has    the   Commission   forbidden                       departures based on those features?                       3) If not, has the Commission encouraged                       departures based on those features?                       4)   If   not,   has    the   Commission                       discouraged  departures  based on  those                       features?             If no special features  are present, or if  special features             are also "forbidden" features, then the sentencing court, in             all likelihood, simply would apply the  relevant guidelines.             If the special features are "encouraged" features, the court             would likely  depart,  sentencing  in  accordance  with  the             Guidelines'  suggestions.    If  the  special  features  are             "discouraged"  features, the  court  would go  on to  decide             whether  the  case  is  nonetheless  not  "ordinary,"  i.e.,                                                                    ____             whether  the case  differs from  the ordinary case  in which             those  features are present.   If the case  is ordinary, the                                         -17-                                          17             court would  not depart.  If  it is not ordinary,  the court             would go on to consider departure.                       Of course, this analysis, by itself, does not help             the district court decide what to do in situations where the             Guidelines   do   not   expressly   forbid,   encourage,  or             discourage, departures.  The Guidelines themselves recognize             that the  "[c]ircumstances that may  warrant departure  from             the  guidelines .  .  . cannot,  by  their very  nature,  be             comprehensively listed and analyzed in advance."  U.S.S.G.               5K2.0, p.s.   When such unforeseen  circumstances arise, the             district  court will decide  whether to depart  (and, if so,             how much  to depart)  by examining  the "unusual"  nature of             these  circumstances and  making  a judgment  about what  is             appropriate.   The  structure  and theory  of both  relevant             individual guidelines  and the  Guidelines taken as  a whole             may inform that judgment.  The sentencing statute also lists             generally relevant sentencing factors, including the "nature             and  circumstances   of  the  offense,"  the   "history  and             characteristics of the defendant," and the basic purposes of             sentencing,    namely,    just    punishment,    deterrence,             incapacitation  and rehabilitation.    18 U.S.C.    3553(a);             United States  v. Merritt, slip op. at  18-19, 25-26 (citing             _____________     _______             Daniel  J.   Freed,  Federal  Sentencing  in   the  Wake  of                                  _______________________________________                                         -18-                                          18             Guidelines:  Unacceptable  Limits   on  the  Discretion   of             ____________________________________________________________             Sentencers,  101 Yale  L.J.  1681,  1700,  1730-31  (1992)).             __________             Ultimately,  however,  the  Guidelines  cannot  dictate  how             courts should  sentence in  such special, unusual  or other-             than-ordinary circumstances.  And, that  is as it should be.             As we have said, see pp.  4-5, supra, the very theory of the                              ___           _____             Guidelines  system   is  that  when   courts,  drawing  upon             experience and  informed judgment  in such cases,  decide to             depart, they will explain  their departures.  The courts  of             appeals, and  the Sentencing  Commission, will  examine, and             learn  from, those  reasons.   And, the  resulting knowledge             will  help  the Commission  to  change,  to refine,  and  to             improve, the  Guidelines themselves.  That is  the theory of             partnership that the Guidelines embody.                                          D                                   Review on Appeal                                   ________________                       If  the  district  court decides  to  depart,  the             defendant may appeal (an upward departure) or the Government             may appeal (a downward departure).  18 U.S.C.   3742(a),(b);             see also  United States  v. Pighetti,  898 F.2d  at 4.   The             ________  _____________     ________             statute then provides the appellate court with two important             instructions.  First,  the court of  appeals must decide  if             the resulting  sentence is "unreasonable, having regard for"                                         -19-                                          19             the sentencing  court's reasons  and  the statute's  general             sentencing  factors.  18  U.S.C.   3742(e)(3).   Second, the             court of appeals must (as it ordinarily does) give "specific             reasons" for its decision.   18 U.S.C.   3742(f)(2).   These             two  instructions,  taken  together,  help assure  that  the             courts  of appeals,  with their  more distant,  yet broader,             perspective, will  also play an important  indirect (as well             as  the obvious direct)  role in the  further development of             Guidelines.     They  play  this  "indirect   role"  as  the             Commission  examines the  courts of  appeals' decisions  and             reacts, through revision, or reiteration, of the Guidelines.                       The result is a  partnership in which each partner             enjoys  a different  institutional  strength.   The district             court may best understand the relation of the  Guidelines to             case-specific, detailed  facts.   Its experience permits  it             directly  to form  a judgment  as to  when certain  kinds of             circumstances seem better handled by judicial discretion and             how  courts ought to exercise that discretion.  At the other             end of the spectrum, the Sentencing Commission, by gathering             information produced by many individual courts, can view the             sentencing  process   as  a   whole,   developing  a   broad             perspective on  sentencing, which will help  it produce more                                         -20-                                          20             consistent  sentencing  results  among   similarly  situated             offenders  sentenced by  different  courts.   The courts  of             appeals see  sentences from  an intermediate  vantage point.             They  devote  considerable time  and  effort  to a  district             court's determination  in a  particular case, while,  at the             same time, placing that case within a broader perspective of             sentencing law.                       Recognizing  this relationship, we  have held that             appellate courts  must recognize a degree  of district court             autonomy when  they review certain aspects  of the departure             decision.  In  United States v. Diaz-Villafane, 874  F.2d 43                            _____________    ______________             (1st Cir.) cert. denied, 493 U.S. 862 (1989), we pointed out                        ____________             that appellate review  of a decision  to depart may  involve             three  subsidiary questions:  1)  review of  the  departure-             related circumstances  to determine  "whether  or not"  they             "are  of a  kind or  degree that  they may  appropriately be             relied  upon  to  justify  departure;"    2) review  of  the             evidence  to  see  if   it  supports  the  departure-related             findings  of fact; and 3) review of the "record support" for             "the direction  and degree" of  departure.   Id. at 49.   We                                                          ___             held that in the second, and the third, instance, an appeals             court must allow  the district court  a degree of  "leeway."             Review of factfinding is for "clear  error."  Id.  Review of                                                           ___                                         -21-                                          21             departure "direction and degree"  will take place with "full             awareness  of,  and  respect  for"  the  sentencing  court's             "superior 'feel' for the case." Id. at 50; see also Bruce M.                                             ___        ________             Selya  &  Matthew  R.   Kipp,  An  Examination  of  Emerging                                            _____________________________             Departure   Jurisprudence   Under  the   Federal  Sentencing             ____________________________________________________________             Guidelines, 67 Notre Dame L. Rev. 1, 39-40 (1991).             __________                       We also  stated, however,  that in respect  to the             first matter ("whether or not"  the circumstances "are of  a             kind  or  degree" to  warrant  a  departure), our  appellate             review was "essentially plenary." Diaz-Villafane 874 F.2d at                                               ______________             49.   This phrase suggested review that provides no "leeway"             for the district  court.   We now consider  it necessary  to             elaborate   our  meaning  and   to  modify,   somewhat,  our             application of  Diaz-Villafane in  later cases.   See United                             ______________                    ___ ______             States  v. Carr, 932 F.2d  67, 72 (1st  Cir.), cert. denied,             ______     ____                                ____________             112 S. Ct. 112 (1991); United States v. Pozzy, 902 F.2d 133,                                    _____________    _____             138 (1st Cir.), cert. denied, 498 U.S. 943 (1990).  (Through                             ____________             circulation of a draft opinion, we have obtained approval of             all active judges for  doing so.  See, e.g.,  Trailer Marine                                               ___  ____   ______________             Transport Corp. v.  Rivera Vasquez, 977 F.2d 1, 9  n. 5 (1st             _______________     ______________             Cir. 1992)).  Our elaboration, and modification, consists of             distinguishing  certain decisions  in  this  category  where             review  should take  place  without  "leeway,"  from  others                                         -22-                                          22             where, despite the technically legal nature of the question,             we nonetheless should review  with "full . . .  respect for"             the  sentencing  court's  "superior 'feel'  for  the  case."             Diaz-Villafane,  874   F.2d  at  50.     We  recognize  that             ______________             application of our  elaboration and modification to  earlier             decided cases might have meant different results.                       Plenary review is  appropriate where the  question             on  review is simply  whether or  not the  allegedly special             circumstances (i.e.,  the reasons for departure)  are of the             "kind"  that  the  Guidelines,   in  principle,  permit  the                                              _____________             sentencing  court to consider at all.  As we have previously             pointed out, departures  for some  reasons are  "forbidden,"             see  pp.  13-14, supra,  and  departures  for certain  other             ___              _____             reasons  are "discouraged"  unless the  case is  out of  the             ordinary, see pp. 12-13,  supra.  Were a district  court (1)                       ___             _____             to try to depart for a "forbidden" reason, or were it (2) to             try to depart for a "discouraged" reason without recognizing                                                      ___________________             that it must explain  how the case (compared to  other cases             ____________________________________________________________             where the reason is present) is special, its departure would             _______________________________________             not  be lawful.  The district court has no special expertise             in   deciding   whether   a   factor   is   "forbidden"   or             "discouraged."  Hence, there  is no reason to review  such a             decision with any "leeway" or "deference."                                         -23-                                          23                       Plenary  review  is  also  appropriate  where  the             appellate court, in deciding  whether the allegedly  special             circumstances are  of a "kind" that  permits departure, will             have to  perform the "quintessentially legal"  function, see                                                                      ___             Diaz-Villafane, 874  F.2d at  49, of  interpreting a  set of             ______________             words,  those of an individual guideline,  in light of their             intention or purpose, in order to identify the nature of the             guideline's "heartland"  (to see  if  the allegedly  special             circumstance falls  within it).  Is  the "child pornography"             guideline,  for example,  aimed  only  at child  pornography             consumers  who are also child molesters, so that a purchaser             who is  not also a  molester falls outside  its "heartland?"             See  United States v. Studley,  907 F.2d 254,  258 (1st Cir.             ___  _____________    _______             1990) (the fact that recipient  of child pornography was not             also a child  molester does  not make the  case unusual  nor             remove  it  from  the  heartland of  the  child  pornography             guideline);  United States v.  Deane, 914  F.2d 11,  14 (1st                          _____________     _____             Cir. 1990)  (following Studley).  Here,  again, the district                                    _______             court has no special  competence in performing this  kind of                          _______             classical  textual  analysis.    Hence,  a reviewing  court,             deciding  whether   the  district  court   has  "incorrectly             applied" a  guideline, 18  U.S.C.   3742(f)(1);  Williams v.                                                              ________             United States, 112 S.  Ct. 1112, 1120 (1992), need  not give             _____________                                         -24-                                          24             the  district court's  answer to  a question  involving this             kind of analysis any special weight.                       In many other instances,  not anticipated by Diaz-                                                                    _____             Villafane,  the district court's decision that circumstances             _________             are of  a "kind," or  "degree," that warrant  departure will             not involve a "quintessentially legal" interpretation of the             ___             words of a guideline,  but rather will amount to  a judgment             about  whether the  given  circumstances, as  seen from  the             district court's unique vantage point, are usual or unusual,             ordinary  or not ordinary, and  to what extent.   A district             court may well have a special competence in making this kind             of determination,  because it may  have a better  "feel" for             the unique  circumstances of the particular  case before it.             A district court is  also likely to have seen  more ordinary                                                                 ________             Guidelines   cases,  for  appellate  courts  hear  only  the             comparatively  few cases  that  counsel  believe  present  a             colorable appeal.  See The Federal Sentencing Guidelines:  A                                ___ _____________________________________             Report on  the Operations of  the Guidelines System  49, 245             ___________________________________________________             (December 1991) (85% of Guidelines  sentences not appealed).             To ignore  the district court's special  competence -- about             the "ordinariness" or "unusualness"  of a particular case --             would   risk  depriving  the  Sentencing  Commission  of  an             important source  of information,  namely, the reactions  of                                         -25-                                          25             the trial  judge to  the fact-specific circumstances  of the             case,  which  reactions,  reduced  to  written  reasons  for             departure, can  help the  Commission determine  whether, and             how,  Guidelines  revision should  take  place.   See  p. 5,                                                               ___             supra; U.S.S.G. Ch.1,  Pt. A intro. comment.  (4)(b).  Thus,             _____             appellate   courts  should   review  the   district  court's             determination of "unusualness" with "full awareness of,  and             respect  for, the  trier's  superior 'feel'  for the  case,"             Diaz-Villafane, 874  F.2d at 50, not  with the understanding             ______________             that review is "plenary."  Contra United States v. Carr, 932                                        ______ _____________    ____             F.2d at 72; United States v. Pozzy, 902 F.2d at 138.                         _____________    _____                       As we have said, Diaz-Villafane mandated appellate                                        ______________             court "respect" for sentencing court determinations  of fact             and of "direction and degree."  We now extend that "respect"             to sentencing  court  determinations  of  whether  (and  the             extent to  which) given circumstances make  a case "unusual"             or "not ordinary."  We believe this view consistent with the             Supreme Court's recent statement that,                       except   to   the  extent   specifically                       directed by statute, "it is not the role                       of an appellate court to  substitute its                       judgment  for  that  of  the  sentencing                       court  as to  the  appropriateness of  a                       particular sentence."              Williams v. United States, 112 S. Ct. at 1121 (quoting Solem             ________    _____________                              _____             v. Helm, 463 U.S. 277, 290 n.16 (1983));  see also Wiliam W.                ____                                   ________                                         -26-                                          26             Wilkins, Jr.,  Sentencing Reform  and  Appellate Review,  46                            ________________________________________             Wash. & Lee L. Rev. 429, 443 (1989) (it is  not "appropriate             for the appellate court to simply substitute its judgment de                                                                       __             novo for that of  the sentencing court").  Our view  is also             ____             consistent  with Congress'  instruction that  appeals courts             "shall   affirm"  reasonable  departures.     18   U.S.C.                3742(f)(2)-(3).  And, it  is consistent with appellate court             efforts  generally to  conduct judicial  review in  light of             comparative institutional  competence.  Cf. United States v.                                                     ___ _____________             Wright,  873  F.2d 437,  444  (1st  Cir. 1989)  (deferential             ______             review  under Guidelines where issue is "one that is founded             'on   the  application   of   the  fact-finding   tribunal's             experience with the mainsprings of human conduct'") (quoting             United States v.  McConney, 728 F.2d 1195,  1202 (9th Cir.),             _____________     ________             cert.  denied  469  U.S.  824  (1984))  (citation  omitted);             _____________             Mayburg v. Secretary of Health & Human Servs., 740 F.2d 100,             _______    __________________________________             105-07 (1st Cir. 1984); see also INS v. Cardoza-Fonseca, 480                                     ________ ___    _______________             U.S.  421, 445-48  (1987)  (citing Chevron  U.S.A., Inc.  v.                                                _____________________             Natural Resources Defense Council,  Inc., 467 U.S. 837, 843,             ________________________________________             n.9 (1984)).                                          II                                Applying the Analysis                                _____________________                                         -27-                                          27                       We now  apply  our  "departure"  analysis  to  the             circumstances  of the two cases before us, the appeal of Ms.             Mirna Rivera, and that of Mr. Robert Adamo.                                         -28-                                          28                                          A                                     Mirna Rivera                                     ____________                       For purposes of this appeal, we take Ms. Rivera to             have transported  about one pound of cocaine,  from New York             to Providence, with intent to distribute it, in violation of             21 U.S.C.   841(a)(1), (b)(1)(B).  The Guidelines  provide a             sentence  of 33 to 41  months imprisonment for  a first time             offender who  has  engaged in  this conduct.   See  U.S.S.G.                                                            ___               2D1.1(a)(3)(c)(10)  (base offense  level of  24); U.S.S.G.               3B1.2(a)    (reduction   of    4   points    for   minimal             participation); U.S.S.G.  Ch. 5,  Pt. A  (sentencing table).             Ms.  Rivera argued  to  the district  court  that it  should             depart  downward  from  this  Guidelines  sentence  for  the             following reasons:                       1)  she has  three small  children, ages                       three,   five,  and  six,   who  need  a                       mother's care;                       2)   she   lives   solely  on   welfare,                       receiving  no  financial  aid  from  her                       former husband;                       3) she has virtually no contact with any                       other  family  member   (except  for   a                       sister,  with  five  children,  also  on                       welfare);                       4) she  has never before engaged  in any                       criminal activity;                       and,                                         -29-                                          29                       5)  she  committed  this single  offense                       because  of  an  unwise wish  to  obtain                       money  for  Christmas  presents for  her                       children.             The  district court decided  not to  depart.   Rivera claims             that this  decision reflects  the  court's incorrect  belief             that it lacked the legal authority to depart.  And, she asks             us  to order  a  new  proceeding.    See  United  States  v.                                                  ___  ______________             Castiello, 915 F.2d  1, 5-6 (1st Cir.  1990) (new proceeding             _________             needed where district court  wrongly thought it lacked legal             power  to depart,  but  not where  it  simply chose  not  to             exercise  this  authority), cert.  denied,  111  S. Ct.  787                                         _____________             (1991).                        After  reviewing  the  record  of  the  sentencing             proceeding,  we  conclude  that  Rivera  is  correct.    The             district  court's  analysis of  the nature  of its  power to             depart is not consistent with the view of departures that we             set  forth  in this  opinion.    We recognize  a  difference             between "forbidden  departures," see pp.  13-14, supra,  and                                              ___             _____             "discouraged  departures," see  pp. 12-13,  supra.   And, we                                        ___              _____             believe  that the district court did not realize that it had             the legal  power to  consider departure, where  departure is             discouraged (but not forbidden), if it finds features of the             case that show it is not ordinary.  See pp. 12-13, supra.                                                 ___            _____                                         -30-                                          30                       At  the sentencing  hearing,  the  district  court             said:                       With  respect  to  Defendant's  argument                       that  the Defendant's  family situation,                       economic    situation,    warrants     a                       departure,   I   must   say   that   the                       guidelines   are   drawn  to   apply  to                       everyone in exactly  the same way,  that                       it is clear from the guidelines that the                       economic   situation   and  the   family                       situation  of the  Defendant  is  not  a                       consideration.    There  are  those  who                       certainly would disagree with  that, but                       that is the  principle that is  embodied                       in the  guidelines.  They are age blind,                                            __________________                       they  are sex blind,  they are  blind to                                 _________             ________                       family circumstances, and can  result in                       ____________________                       their application in a certain amount of                       cruelty.   But, that  isn't a  basis for                       making  a departure.   It's  a situation                                              _________________                       where somebody tries  to draw a straight                       ________________________________________                       line  that  applies  to every  situation                       ________________________________________                       that can possibly  arise and this  Court                       ________________________________________                       is without discretion to take what might                       ________________________________________                       well  be  thought  by  most  people,  at                       ________________________________________                       least,    legitimate    concerns    into                       ________________________________________                       consideration.   Simply put, I  can't do                       ______________               ___________                       that  because  the  guidelines   do  not                       ________________________________________                       permit  me   to  do   that.    So   that                       ___________________________                       Defendant's objection or request to make                       a downward departure is denied . . . .                        Your Counsel says that a court somewhere                       observed that these guidelines are not a                       straightjacket  for  a  District  Court.                       Well, I don't agree  with that.  Here is                       a circumstance where I'm  satisfied that                       the reason you did  this was to buy toys                       for your children at Christmas.  It  was                       a  serious  mistake.   The  pre-sentence                       report says this:                            There   is    no   information                            suggesting that Ms. Rivera had                                         -31-                                          31                            any previous participation  in                            a   similar    type   criminal                            activity.     The  Defendant's                            lifestyle is not indicative of                            that of a  drug dealer who has                            profited from ongoing criminal                            activity.   Rather she appears                            destitute,  relying on  public                            assistance to  support herself                            and her children.                       . . . If I had the authority to do it, I                             __________________________________                       would not impose the sentence that I  am                       ________________________________________                       about  to  impose.   I  would  impose  a                       __________________                       lesser  sentence  because  I think  that                       these guidelines  simply are unrealistic                       when  applied  to  real life  situations                       like  this.    They  may  work  in  many                                      _________________________                       circumstances, but  they certainly don't                       ________________________________________                       work here.                       __________             (Emphasis added).                         In these  statements,  the court  repeatedly  said             that it lacked the  legal power to depart; it  characterized             the   case   before  it   as   different   from  the   "many             circumstances"  where  the Guidelines  might work;  it added             that  it  would depart  if it  could;  it set  forth several             circumstances that might make the case a special one; and it             described  as identical  ("sex blind"  and "blind  to family             circumstances")   guidelines   that,    in   fact,    differ             significantly, the former involving a "forbidden" departure,             and the latter a  "discouraged" departure.  Compare U.S.S.G.                                                         _______                5H1.10, p.s. with    5H1.6, p.s; compare  also pp. 13-14,                             ____                _____________             supra with pp. 12-13, supra.  Taken together, these features             _____ ____            _____                                         -32-                                          32             of the  case warrant a new  sentencing proceeding, conducted             with the district court  fully aware of its power  to depart             in "unusual cases" and where family circumstances are out of             the "ordinary."                       Of course, we  should not (and would  not) order a             new proceeding  were  the proceeding  pointless, i.e.,  were                                                              ____             there  no   significant  possibility  that   the  facts  and             circumstances  would permit  the district court  lawfully to             order  a departure.  See  United States v.  Rushby, 936 F.2d                                  ___  _____________     ______             41, 42 (1st Cir. 1991).  Yet, we cannot say this is so.   We             have  examined   the  case  law  and   found  several  cases             permitting departure in  similar, or even less  sympathetic,             circumstances.  See United States v. Johnson, 964 F.2d  124,                             ___ _____________    _______             128-30 (2d Cir. 1992)  (sole responsibility for raising four             children); United  States v. Alba,  933 F.2d 1117,  1122 (2d                        ______________    ____             Cir. 1991)  (twelve-year marriage, two children, living with             disabled,  dependent father and  grandmother); United States                                                            _____________             v.  Pena, 930  F.2d 1486,  1494-95 (10th Cir.  1991) (single                 ____             parent  of  infant and  sole  supporter  of sixteen-year-old             daughter and daughter's infant);  United States v. Big Crow,                                               _____________    ________             898 F.2d  1326, 1331-32  (8th Cir.  1990) (solid  family and             community ties and "consistent efforts to lead a decent life             in [the] difficult environment"  of an Indian  reservation).                                         -33-                                          33             See also United States  v. Gaskill, No. 92-5588, slip op.(3d             ___ ____ _____________     _______             Cir.  April  16,  1993)  (defendant's  responsibilities  for             mentally ill wife might justify departure).                          We   have   also  found   many   cases  forbidding             departures  for reasons related  to family responsibilities,             but they seem to  involve circumstances less compelling than             those before us.   See  United States v.  Chestna, 962  F.2d                                ___  _____________     _______             103, 107 (1st  Cir.), cert.  denied, 113 S.  Ct. 334  (1992)                                   _____________             (defendant  was single  mother  of  four  children);  United                                                                   ______             States v. Mogel, 956 F.2d 1555,  1565 (11th Cir.) (defendant             ______    _____             supported  two minor  children  and  live-in mother),  cert.                                                                    _____             denied, 113 S. Ct.  167 (1992); United States v.  Cacho, 951             ______                          _____________     _____             F.2d  308, 311  (11th Cir. 1992)  (defendant had  four small             children);  United States  v. Berlier,  948 F.2d  1093, 1096                         _____________     _______             (9th Cir. 1991) (defendant  sought to keep family together);             United   States  v.  Carr,  932   F.2d  67,  72  (1st  Cir.)             _______________      ____             (codefendants were  parents of  young child),  cert. denied,                                                            ____________             112 S. Ct.  112 (1991);  United States v.  Shoupe, 929  F.2d                                      _____________     ______             116, 121 (3d Cir.) (defendant was  father who regularly made             child support  payments and frequently spoke  with young son             living with ex-wife),  cert. denied, 112 S.  Ct. 382 (1991);                                    ____________             United  States  v.  Brand,  907  F.2d  31,  33  (4th   Cir.)             ______________      _____             (defendant was sole custodial parent of two children), cert.                                                                    _____                                         -34-                                          34             denied, 498 U.S.  1014 (1990);  United States  v. Neil,  903             ______                          _____________     ____             F.2d 564, 566  (8th Cir. 1990) (defendant had  stable family             life);  United States v. Pozzy, 902 F.2d 133, 139 (1st Cir.)                     _____________    _____             (defendant pregnant and  husband imprisoned), cert.  denied,                                                           _____________             498  U.S. 943 (1990); United States v. Brewer, 899 F.2d 503,                                   _____________    ______             508-09 (6th Cir.) (defendant  was mother of young children),             cert. denied, 498 U.S. 844 (1990).               ____________                       The upshot is a  difficult departure decision.  On             the  one hand  lie  a host  of  quite special  circumstances             (though  many  are of  the "discouraged"  sort), and  on the             other  hand lies the simple  fact that Ms.  Mirna Rivera did             transport a  pound of cocaine  from New York  to Providence.             This is the  kind of case  in which, if  the district  court             departs,  its informed views as  to why the  case is special             would seem  especially useful  and  would warrant  appellate             court "respect."  See pp. 23-24, supra.                               ___            _____                       We remand the case for further proceedings.                                          B                                     Robert Adamo                                     ____________                       Mr.  Adamo  was  convicted  of   embezzling  about             $100,000 belonging to  the union Health and  Welfare Fund of             which he was a fiduciary,  in violation of 18 U.S.C.    664.             He accepted responsibility for  the crime, U.S.S.G.   3E1.1.                                         -35-                                          35             It was his first offense.  The Guidelines provided a minimum             prison term  of  fifteen months.    See U.S.S.G.      2E5.2,                                                 ___             2B1.1,  3B1.3 (base offense level of 4; increase of 8 points             for  amount of  loss;  2  level  enhancement for  more  than             minimal  planning;  2  level  enhancement   for  fiduciary);             U.S.S.G.  Ch. 5,  Pt.  A (sentencing  table).   The district             court, departing downward from the Guidelines, sentenced Mr.             Adamo to probation alone, without any imprisonment.                        The  court gave  the  following  reasons  for  its             downward departure:                            When  I  look  at  these  cases  of                       sentencing, the first thing I ask myself                       is,  "What sentence  would  I impose  if                       there were no guidelines?"   That's what                       I did for more than 20 years.  And  then                       I ask myself, "What's a just sentence in                       these circumstances?   Am I  going to be                       limited  by these  artificial guidelines                       made by people who  have no idea of what                       kind  of a  case  I'm going  to have  to                       decide?"  No two cases are the same. . .                       .                             So  that's where justice is in this                       case,  having  restitution made  to this                       Health &  Welfare Fund.  If  I send this                       defendant   to   prison  I   think  it's                       foreordained  that restitution  will not                       be  made.    It  may  be  made  in  some                       respect,  but  I'm  sure  the  defendant                       would lose both his jobs and would  find                       it  very  difficult  to have  employment                       which   would   allow   him    to   make                       restitution.  And a time in prison would                       serve  no useful  purpose in  this case.                       The  only  factor  in  sentencing  which                                         -36-                                          36                       would be accomplished is punishment, but                       the defendant has  been punished just by                       being here -- just  being here and  what                       he's gone through in the last  6 months,                       and   the  notoriety   of  this.     So,                       imprisonment serves no useful purpose in                       this case.  It  certainly isn't a matter                       of deterrence.   I'm sure  the defendant                       will never do anything like this again.                            Here is  a  man who  has  lived  an                       exemplary life, he's worked two  jobs to                       take care  of his family.   His wife has                       worked, and although they were making in                       the range of $70,000 a year, the problem                       of educating two children came up.  It's                       a problem  that everyone faces.  This is                       where  the error  of judgment  comes in.                       He took  this money,  not out  of greed,                       not out of desire to own a fancy  car or                       a  palatial  home  and a  boat,  but  to                       educate his children.   He didn't  think                       about  the  other  alternatives.     His                       daughter  wanted to  go to  an expensive                       private  school, instead  of going  to a                       local state school of  some sort, and he                       thought that's what she should have.  He                       didn't consider loans and other types of                       programs.  This  money was available, he                       took  it  -- a  terrible  mistake.   But                       that's the only mistake that he seems to                       have made,  and  I just  don't think  he                       should  spend time in  prison because of                       this one mistake.                            I  want  restitution  made, so  I'm                       going  to exercise  my best  judgment in                       these circumstances.   My best  judgment                       is to  have as long a  term of probation                       as possible so  that restitution can  be                       made with the  guidance of the probation                       office.                            So,  I'm  going to  depart downward                       and  impose  a  term of  probation  of 5                       years.   That's the  maximum that  I can                                         -37-                                          37                       impose.   And  one of the  conditions of                       probation  will  be,  and is,  that  the                       defendant shall pay  restitution in  the                       amount  of  $91,125.62 to  the  Health &                       Welfare  Fund  of  the Building  Service                       Employees  International Union,  AFL-CIO                       Local 334.                       The court's explication of its  reasons is useful,             for  it produces understanding  and permits evaluation, both             by  appellate courts and by  the Commission.  We nonetheless             believe the  analysis does  not permit the  departure before             us.                       First, we believe (deciding the question as a pure             matter of law,  see pp. 21-22, supra) that  the embezzlement                             ___            _____             guidelines encompass, within their "heartland," embezzlement             accompanied by normal  restitution needs and  practicalities                            ______             (i.e., the  simple facts  that restitution is  desirable and              ____             that a prison term will make restitution harder to achieve).             It  would  seem   obvious,  and  no  one  denies,  that  the             embezzlement guidelines  are written  for ordinary  cases of             embezzlement, that  restitution is  called for in  many such             cases, and that prison terms often make restitution somewhat             more  difficult  to  achieve.    Moreover, the  embezzlement             guideline  reflects  the  Commission's  intent  to  equalize             punishments for "white collar" and "blue collar" crime.  See                                                                      ___             United States Sentencing Commission, Supplementary Report on                                                  _______________________                                         -38-                                          38             the Initial Sentencing  Guidelines and Policy  Statements 18             _________________________________________________________             (1987); Hearings  Before the Senate Comm.  on the Judiciary,                     ___________________________________________________             100th  Cong., 1st Sess. 54-55  (October 22, 1987).   Yet, as             the Sixth Circuit has pointed out,                        a  rule  permitting greater  leniency in                       sentencing  in  those  cases   in  which                       restitution  is   at  issue  and   is  a                                                    ___                       meaningful possibility  (i.e., generally                       white collar crimes) would . . . nurture                       the  unfortunate  practice of  disparate                       sentencing   based   on   socio-economic                       status,   which   the  guidelines   were                       intended to supplant.             United States v. Harpst,  949 F.2d 860, 863 (6th  Cir. 1991)             _____________    ______             (citing U.S.S.G.    5H1.10, p.s. (socio-economic  status not             relevant  in  determination  of  sentence)).   Further,  the             district court itself, stating  that it did not wish  "to be             limited by  these artificial  guidelines," and that  "no two             cases are alike," seemed to disregard, rather than  to deny,             the scope of the embezzlement guideline.  For these reasons,             we join  the  Fourth and  Sixth  Circuits, in  holding  that             ordinary restitution circumstances of  this sort do not fall             ________             outside  the  embezzlement   guideline's  "heartland,"   and             therefore  do not warrant a downward departure.  See Harpst,                                                              ___ ______             949 F.2d at  863; United  States v. Bolden,  889 F.2d  1336,                               ______________    ______             1340 (4th Cir. 1989).                                         -39-                                          39                       Second,  we recognize  that  a special  need of  a                                                      _______             victim for restitution, and the  surrounding practicalities,             might, in an  unusual case,  justify a departure.   But,  we             cannot review a district  court determination to that effect             here,  for the  district court  made no  such determination.             (Although,  had  it  done  so,  we  would  have treated  its             determination with "respect."   See pp.  23-24, supra.)   We                                             ___             _____             mention this fact because the  defendant has pointed to  one             unusual  feature of the case.  The record before us contains             a  suggestion  that  Mr.  Adamo  could  keep  his  job  (and             therefore remain  able to make restitution)  were his prison             term only one year, but he  could not keep his job (and thus             would  lose  his  ability   to  make  restitution)  were  he             sentenced  to the  Guidelines prison  term of  one year  and             three  months.   We  can imagine  an argument  for departure             resting  upon a  strong need  for restitution,  an important             practical advantage to the  lesser sentence, and a departure             limited to three months.                         We are not urging such a  departure or saying that             we  would eventually find it lawful.  We mention the special             circumstance to  underscore the need  for reasoned departure             analysis, sensitive to the way in which the Guidelines  seek             to structure departure  decisions and to the  role that such                                         -40-                                          40             departures, and their accompanying  reasons, can play in the             continued development of the Sentencing Guidelines.  We have             explained why  the district court's analysis,  about how the             features  of a case make it unusual, can help both reviewing             courts  and the  Commission  itself.   See  pp. 4-5,  18-19,                                                    ___             supra.  The district court, in Mr. Adamo's case, may wish to             _____             conduct such an analysis in light of the special features of             the case to which the defendant has pointed.                       We therefore remand this  case for new  sentencing             proceedings.                       The sentences  in both  cases are vacated  and the                       __________________________________________________             cases are remanded to the district court for resentencing.             __________________________________________________________                       So ordered.                        ___________                                         -41-                                          41
