
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1645                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 WILLIAM L. GIFFORD,                                Defendant, Appellant.                              _________________________                                     ERRATA SHEET                                     ERRATA SHEET               The  order of  the  court  issued on  February  24, 1994  is          corrected as follows:               1.   On  page  23,  2d line  of  runover paragraph,  replace          "constitutionally adequate" with "paragraph-wide"               2.  On page 23,  1st full paragraph, change the  second line          to read as follows " . . . Video holding, we respectfully decline                                     _____          to follow the panel's determination that the Constitution demands          that a defendant  must have had actual knowledge  of the minority          of at least  one of  the performers.   We hold  instead that  the          appropriate constitutional  requirement is  one of  recklessness,          that   section  2252  satisfies  it,  and  that,  therefore,  the          statute's scienter requirement is constitutionally adequate.  The          statute's legislative history makes it pellucid . . . . "               3.    On  page  23,  1st full  paragraph,  line  11,  strike          "Furthermore, the" and replace with "This".                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1645                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 WILLIAM L. GIFFORD,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                              _________________________               Annemarie  Hassett, Federal  Defender Office,  on brief  for               __________________          appellant.               Jeanne M. Kempthorne, Assistant United States Attorney, with               ____________________          whom  A. John Pappalardo,  United States Attorney,  was on brief,                __________________          for the United States.                              _________________________                                  February 24, 1994                              _________________________                    SELYA,  Circuit  Judge.   A  jury  convicted defendant-                    SELYA,  Circuit  Judge.                            ______________          appellant William  L. Gifford on  a charge of illicit  receipt of          child   pornography  in  violation  of  18  U.S.C.     2252(a)(2)          (1988).1   The district  court imposed an  18-month incarcerative          sentence.  Gifford appeals both the conviction and the sentence.                    Appellant's principal argument requires us to probe the          dimensions  of  the  entrapment  doctrine  in  the  aftermath  of          Jacobson v. United States, 112 S.  Ct. 1535 (1992).  When all  is          ________    _____________          said   and  done,  we   find  ourselves  unpersuaded   either  by          appellant's argument on entrapment or by his other merits-related          asseverations.     Consequently,   we   affirm  the   conviction.          Appellant's sentence presents a different set  of considerations.          On this scumbled record, we  conclude that the course of prudence          is to vacate the sentence and remand for resentencing in light of          our recent decision in United States v. Rivera, 994 F.2d 942 (1st                                 _____________    ______          Cir. 1993).          I.  BACKGROUND          I.  BACKGROUND                    This  appeal  finds   its  genesis  in  an   undercover          investigation  mounted by  a postal  inspector,  John Dunn,  who,          using  the alias  of "Gatewood,"  sent a  letter to  appellant in          February of 1986 (after culling his name from the mailing list of          a company  reputed to  distribute child  pornography).   Gatewood                                        ____________________               1The statute  of conviction makes  it a federal crime  for a          person "knowingly" to receive "any visual depiction that has been          mailed .  .  . if  (A)  the producing  of such  visual  depiction          involves the  use  of  a  minor  engaging  in  sexually  explicit          conduct; and (B) such  visual depiction is of such  conduct."  18          U.S.C.     2252(a)(2).    Visual depictions  of  this  genre  are          commonly referred to as child pornography.                                          3          wrote that,  while abroad,  he had  "developed what  others might          consider  forbidden interests."   He claimed that  his "publisher          friends"  had given him  "a few Stateside  addresses," presumably          including appellant's, and asked if appellant had  an interest in          pursuing  the matter.  Appellant responded promptly, specifying a          post office box as his return address.  His letter stated:                    "I  don't know who you are, but would like to                    know anyway.   Please let me know who you are                    (Mr.  or Mrs.)  and what  you  would like  to                    correspond about.  Let me hear from you, as I                    don't   know   anything  about   your   given                    address!"          Gatewood replied to this  letter in June,2 writing that he  had a          "very strong appreciation  of a varied sexual life,"  a "love for          the much younger generation," and  a "decent collection" of films                                        ____________________               2The full text of Gatewood's letter follows:                    Sorry for the  delayed response.  I  still do                    travel  quite a  bit and  organization of  my                    personal  life is not  my strongest suit.   I                    just misplaced  you for  a while.   I've  had                    several  close friends  over  the years  into                    Scandinavian publishing  and photography.   I                    thus have  acquired a very  decent collection                    of  materials  that  others not  so  inclined                    might find confusing.   I have a  very strong                    appreciation   of  a   varied  sexual   life.                    Spending  some time on  Uncle Sam in  the Far                    East fully  developed my  love  for the  much                    younger generation.                         I hope  I've been  properly led.   I  do                    have a few close  friends stateside with whom                    I trade/loan.   Not much into selling  but we                    could talk.                         Hope to hear  from you William.   Let me                    know what you like.  Feels strange writing to                    a PO Box but I'll give you the benefit of the                    doubt.                                          4          and photographs.  He remarked that he had a group of friends with          whom he exchanged such baubles.  Appellant answered  this missive          in early July, inquiring about "Scandinavian publishing material"          that might be available for purchase.  Gatewood did not reply.3                    The  next  contact  between  appellant  and the  postal          inspectors consisted of a  single-page advertisement disseminated          by the Far Eastern  Trading Co. (Fetco), a sham corporation.  The          bogus solicitation  criticized the government's efforts to censor          "children's  pornography," indicated  that  Fetco  had devised  a          foolproof  technique for shipping such materials into the country          undetected,  and  invited  responses  from  interested   parties.          Appellant signed and  returned the printed form provided for that          purpose,  enclosing a  note in  which he  referred to  a specific          publisher, COQ.4   He also  requested catalogs for "this  type of          material"  and  a  listing  of  similarly  oriented  Scandinavian          publishers.  Fetco then sent appellant a catalog that described a          variety  of  films  in  a  crude  way  that  left  little  to the          imagination     and  left  no  shred  of  doubt  that  the  films          constituted visual depictions of the kind targeted by 18 U.S.C.            2252(a)(2).5   By letter  postmarked January 26,  1987, appellant                                        ____________________               3Inspector  Dunn  testified at  trial that  the government's          undercover operation generated  so overwhelming a response  as to          overtax its capabilities.               4According to  the testimony at  trial, COQ functioned  as a          prominent source of child pornography in the 1980s.               5To cite two representative offerings, the catalog mentioned          "Preteen  Trio," described  as a  "Lolita movie  of  real action"          featuring a girl of 9 and  boys of 12 and 15 having  intercourse,          and a film entitled "Children Sex Orgy."                                          5          ordered  two items, "Dolls"  and "Pissing Lolita,"  and requested          thatFetcoinform himwhenthemagazine"EroticYouth" wouldbeavailable.                    The  government  neither filled  appellant's  order nor          cashed his check.   In June of 1987, appellant bemoaned the delay          and requested immediate clarification of the status of his order.          The government temporized, sending  appellant a new catalog.   On          July  31, 1987,  appellant  forwarded  a  replacement  order  and          another check.   He again requisitioned "Pissing  Lolita," but in          lieu of "Dolls,"  he substituted two  magazines, "Baby Love"  and          "Lolita   Sex."6  This order, too, went unrequited.                    In  the spring of 1988 the government initiated another          contact.    It sent  appellant  a complimentary  copy  of "Tender          Moments," a newsletter  published by postal inspectors  under the                                        ____________________               6All three items purported to contain child pornography.  To          illustrate  the unambiguous nature of the solicitation, we quote,          albeit reluctantly, from the catalog.  It supplied  the following          blurb for "Pissing Lolita":                    This  is an absolute sensation!  A film which                    shows you the  ultimate pleasure children and                    adults have in  the act of pissing  over each                    other.   They try  mostly to  hit the  little                    cunts.  Look  at the two Lolitas  of nine and                    ten  enjoying  it.     And  see  these  girls                    pissing!          The catalog described "Baby Love" as:                    Youngest  of the young.  Young darling girl 2                    1/2 years  old learns  masturbation from  her                    mother.  Great shots of wide open lips.          The catalog described "Lolita   Sex" as:                    More  pissing   and  masturbation   from  the                    producers of the Lolita  series of magazines.                    Girls 8  years up  to 15  years in  hard core                    action.  Exciting intercourse and cum shots.                                          6          pseudonym  of "the  American Sensuality  Society."   The  Society          purported to  be a  club whose  members, for  a fee,  could place          advertisements and notices in the newsletter.  In July, appellant          completed  a membership  form, sent  a  check, and  wrote a  note          indicating an interest in  purchasing copies of the "Bambina  sex          series" and "Lolita-sex  magazines."  One month  later, appellant          placed an  advertisement in  "Tender  Moments" requesting,  inter                                                                      _____          alia, addresses of Danish bookstores offering adult material.          ____                    Using  the  name  Christian  M.,  and  conjuring  up  a          fictitious  association   with  a  fictitious   firm,  "Chrismere          Associates," the ubiquitous Inspector Dunn responded to this note          in June of 1989, asking that appellant "[l]et me know exactly the          sort  of  action  desired and  preferred  ages  . .  .  ."   When          appellant replied that his interest lay in "films or magazines of          teen or pre-teen  girls or boys in  the nudist or other  state of          nakedness," Christian wrote back:   "If you are seeking nudist or          naturist type things I cannot be much assistance as my collection          of  material  is what  is called  here  ACTION that  is  oral and          penetrating   and  features  preteen   girls  nine   to  eleven."          Appellant rose to the bait, acknowledging that he was "interested          in a  loan of Lolita or  other pre-teen magazines to  my mailbox,          which  is safe  and  private .  .  .  ."   Though  communications          continued for some time, no materials were shipped.                    During  the tail end of these negotiations, yet another          government undercover operation surfaced.  This operation, called          "Canamerican," forwarded appellant  a brochure on March  1, 1990.                                          7          The brochure  featured child  pornography.7  Appellant  expressed          pleasure  at   "hear[ing]  of  what   you  have  to   offer"  and          communicated  an interest  in purchasing "copies  of .  . .  8 mm          films"  and "teen  or  pre-teen  magazines."   On  June 3,  1990,          appellant  placed an order,  requesting that  Canamerican "[s]end          the films `Lolita  Children Love'  and `PreTeen  Trio' for  now,"          along with "photocopies of Bambina Sex 4-5."                    In August, appellant  inquired about the status  of his          order.  Having one's fondest wishes come true can sometimes prove          to be  a curse.  On September 22,  1990, the materials arrived at          appellant's  post office box in Woburn, Massachusetts.  Appellant          collected them  from the  box.   Government agents then  arrested          him.  At  the time of his arrest, appellant  acknowledged that he          knew  the  package  mailed by  Canamerican  would  contain visual          depictions  of  under-age  females engaged  in  sexually explicit          conduct.                    The  authorities later  obtained a  search warrant  for          appellant's  apartment.   On executing  the  warrant, they  found          various notes, including one that read:                    wrote on 10/15                    Scandinavian Connection                    Copenhagen Denmark                    Amsterdam Netherlands                         *       *       *                    Blondie, Bambina Sex, Lolita,                                        ____________________               7The films offered  for sale in the brochure  included "Pre-          Teen  Lolita Mix," which was  described as featuring a 9-year-old          girl having intercourse,  and other motion pictures  described as          depicting girls 9-13 and boys 7-14 having sexual relations.                                          8                    Baby Love Moppets, Incest #5,                    Schoolgirls.          Trial testimony  identified "Scandinavian Connection"  as a well-          known purveyor  of child  pornography during  the late  1970s and          early  1980s.    It  was  not a  government  front.    "Blondie,"          "Moppets,"  and  "Incest  #5"  are titles  of  films  that  never          appeared  in  catalogs  or  other  offering  materials  that  the          government furnished to appellant.          II.  THE ENTRAPMENT DEFENSE          II.  THE ENTRAPMENT DEFENSE                    Appellant's principal  contention  in  this  court,  as          below,  is  that  he was  entrapped  and,  accordingly, that  the          district court  should have  granted his motion  for judgment  of          acquittal under Fed. R. Crim. P. 29.  We are not persuaded.                               A.  Standard of Review.                               A.  Standard of Review.                                   __________________                    The   standard   of   review  is   not   controversial.          "Following  a guilty verdict,  a reviewing court  must scrutinize          the  record,  eschewing  credibility  judgments  and  drawing all          reasonable inferences in favor of  the verdict, to ascertain if a          rational jury  could have found  that the government  proved each          element of the  crime beyond a reasonable doubt."   United States                                                              _____________          v. Sepulveda, ___ F.3d ___, ___ (1st Cir. Dec. 20, 1993) [No. 92-             _________          1362, slip op. at 7].  Moreover,  "[t]o sustain a conviction, the          court need not conclude that only a guilty verdict  appropriately          could be reached; it  is enough that the  finding of guilt  draws          its essence from a plausible reading  of the record."  Id.   And,                                                                 ___          finally,  our cases are consentient that the prosecution's burden          of proof  may  be satisfied  by either  direct or  circumstantial                                          9          evidence, or  by any combination  thereof.  See United  States v.                                                      ___ ______________          Echeverri, 982  F.2d 675, 677  (1st Cir. 1993); United  States v.          _________                                       ______________          Victoria-Peguero,  920  F.2d  77, 86-87  (1st  Cir.  1990), cert.          ________________                                            _____          denied, 111  S. Ct. 2053 (1991).  So  long as the evidence, taken          ______          as a whole, supports the judgment of conviction, it need not rule          out other hypotheses  more congenial to  a finding of  innocence.          See Victoria-Peguero, 920 F.2d at 86-87.          ___ ________________                    Appellant's entrapment defense must be analyzed  within          this  framework, but  with  special  attention  to  the  shifting          burdens  of  production  indigenous to  entrapment.    See, e.g.,                                                                 ___  ____          United States v. Rodriguez, 858 F.2d 809, 812-13 (1st Cir. 1988).          _____________    _________          Our cases make  clear that, as with most  affirmative defenses, a          judge can  instruct  a jury  concerning  entrapment only  if  the          defendant  has carried the  "entry-level burden" of  showing that          "the  record,  viewed most  charitably  to the  proponent  of the          instruction, furnishes an arguable basis" for an assertion of the          defense.  Id.  at 813; accord United States  v. McKenna, 889 F.2d                    ___          ______ _____________     _______          1168,  1174  (1st Cir.  1989).    While  the necessary  level  of          evidence is not "so substantial  to require, if uncontroverted, a          directed verdict  of acquittal . . . it must  be more than a mere          scintilla."  United States v. Pratt,  913 F.2d 982, 988 (1st Cir.                       _____________    _____          1990)  (citations omitted), cert.  denied, 498 U.S.  1028 (1991).                                      _____  ______          It  is only  when and  if a  defendant successfully  carries this          entry-level burden that the entrapment defense secures a foothold          in the case.  Once that occurs, the government must  shoulder the          burden  of proving,  beyond  reasonable  doubt,  the  absence  of                                          10          entrapment.   See Rodriguez,  858 F.2d at  815; United  States v.                        ___ _________                     ______________          Polito, 856 F.2d 414, 416 (1st Cir. 1988).          ______                                    B.  Analysis.                                    B.  Analysis.                                        ________                    The  crux of this  issue is  the supportability  of the          jury's finding  that the  government did  not entrap  appellant.8          Appellant's arguments on  this score  require us  to revisit  our          entrapment  jurisprudence  in  light of  the  Court's  opinion in          Jacobson,  112 S.  Ct. 1535.    Having made  this pilgrimage,  we          ________          conclude  that Jacobson has  brought into slightly  better focus,                         ________          but   not  supplanted,  one  bearing  wall  within  the  existing          structure of our  entrapment jurisprudence.  In the  end, we find          that the court  below committed no reversible error  and that the          record contains ample evidence to sustain the jury's verdict.                    The affirmative defense  of entrapment is  comprised of          two  elements:   "(1)  government  inducement of  the  accused to          engage in  criminal  conduct,  and  (2)  the  accused's  lack  of          predisposition to engage  in such conduct."   Rodriguez, 858 F.2d                                                        _________          at 812; accord  Polito, 856  F.2d at 415-16.   Jacobson does  not                  ______  ______                         ________          alter  this structure, but  only clarifies the  second component.          It teaches that  when entrapment is genuinely in  issue   meaning          that the defendant has met his entry-level burden, see supra Part                                                             ___ _____          II(A)   "the prosecution must prove beyond  reasonable doubt that          the defendant  was disposed to  commit the criminal act  prior to                                        ____________________               8Because we choose to meet appellant's sufficiency challenge          head-on,  we do  not reach  the  government's related  claim that          appellant  failed to carry his entry-level burden, see Rodriguez,                                                             ___ _________          858 F.2d  at 812, and,  therefore, forfeited the right  to assert          the entrapment defense at all.                                          11          first being approached  by government agents."   Jacobson, 112 S.                                                           ________          Ct. at 1540.  Seizing  on this directive, appellant contends that          the  government improperly  induced him  to  purchase the  mailed          materials and,  in all events,  that a reasonable jury  could not          have found him, in his  primeval state, to have been predisposed.          We examine these contentions separately.                    1.   Inducement.   The  first  question is  whether the                    1.   Inducement.                         __________          government's actions constituted an unlawful inducement to engage          in criminal conduct.9   We start our perlustration  of this issue          with  first  principles.    Neither  mere  solicitation  nor  the          creation  of  opportunities   to  commit  an  offense   comprises          inducement as that term is used in entrapment jurisprudence.  See                                                                        ___          Pratt, 913 F.2d at 989; United States v. Coady, 809 F.2d 119, 122          _____                   _____________    _____          (1st Cir. 1987).  Rather, inducement refers to government conduct          that  persuades a  person to  turn "from  a righteous path  to an          iniquitous one."   Coady, 809  F.2d at  122.   Inducement can  be                             _____          found  only when  the  government has  ventured  beyond a  simple          offer, say, by  pleading with a defendant, see,  e.g., Pratt, 913                                                     ___   ____  _____          F.2d at 988; Kadis v. United States, 373 F.2d 370, 374  (1st Cir.                       _____    _____________          1967), or by using inherently coercive tactics (e.g.,  threats or                                                          ____          promises of  reward), see,  e.g., United  States v. Stanton,  973                                ___   ____  ______________    _______          F.2d 608, 610 (8th Cir. 1992), or by arm-twisting  based on need,          sympathy, friendship,  or the like, see Sherman v. United States,                                              ___ _______    _____________          356 U.S.  369, 376  (1958); United States  v. Campbell,  874 F.2d                                      _____________     ________                                        ____________________               9Jacobson has no bearing on the issue of inducement because,                ________          in that case,  the Court had no occasion to deal with inducement.          See Jacobson, 112 S. Ct. at 1540 n.2.          ___ ________                                          12          838, 843-44  (1st Cir.  1989); United States  v. Kelly,  748 F.2d                                         _____________     _____          691, 698 n.16 (D.C. Cir. 1984).                    Under  these   guidelines,  the   evidence  comfortably          supports a conclusion that the postal inspectors' actions in this          case did  not constitute unlawful inducement to commit the crime.          We think that a reasonable jury easily could have found that  the          government's overtures  to appellant, though  prolonged, amounted          to no more than open-ended  solicitations, all of which, at least          implicitly, invited uninterested recipients to pay no heed.   The          postal inspectors made no appeal to the "sympathy of an obviously          reluctant  person."  Kadis, 373 F.2d  at 373.  The opposite seems                               _____          true:  the  solicitations were unsophisticated, erratic  in their          timing, and not designed to exert pressure of any sort.   By like          token, the  solicitations held out no promise of tempting rewards          (apart  from  whatever  satisfaction could  be  derived  from the          erotica itself).   Just the  reverse:  appellant was  required to          pay in  advance to  join the American  Sensuality Society  and to          obtain any material that he deigned to order.                    In  itself,  this  conclusion disposes  of  appellant's          sufficiency-of-the-evidence challenge,  for, as a  matter of law,          entrapment cannot flourish  unless both elements of the defense            inducement  and   an  absence  of  predisposition     coincide.10                                        ____________________               10For   this  reason,  the  government  is  correct  in  its          assertion that  the jury charge  was flawed.  The  district court          instructed the jury that "if the evidence in  the case leaves you          with a reasonable doubt whether Mr. Gifford was willing to commit          the crime, apart  from the persuasion of government agents, then,          you must find  him not guilty."  The court thus neglected to tell          the jury that, in order to acquit on the basis of  entrapment, it                                          13          "[T]he defense fails if the jury is persuaded beyond a reasonable          doubt that either is lacking."  Rodriguez, 858 F.2d at 815.                     ______               _________                    2.     Lack  of  Predisposition.     For  the  sake  of                    2.     Lack  of  Predisposition.                           ________________________          completeness, we note that the  evidence also supports a  finding          that appellant,  dating back  to the beginning  of 1986,  did not          lack predisposition to  traffick in child pornography.   Jacobson                                                                   ________          gives  us  guidance  as  to  what evidence  suffices  to  show  a          predilection to violate the law at the critical time, that is, in          advance  of the government's  initial intervention.   The Court's          opinion  does  not  require  the  government  to  furnish  direct          evidence  that a  defendant  had been  violating  (or, at  least,          trying   to  violate)   the  law   prior   to  the   government's          intercession.   Rather, under  Jacobson, ready commission  of the                                         ________          criminal   act  can  itself  adequately  evince  an  individual's          predisposition.  See Jacobson, 112 S. Ct. at 1541.                           ___ ________                    Of course, the fly  in the ointment here is that,  in a          purely temporal sense,  ready commission of the  criminal act did          not transpire; the postal inspectors first contacted appellant in          early 1986, yet appellant did not place the order that led to his          arrest until  mid-1990.  The  fifty-two months that elapsed  is a          considerably longer span of time  than the "26 months of repeated          mailings and communications from Government agents and fictitious          organizations"  that   marked  Jacobson's   dalliance  with   the                                        ____________________          also   would  have   to   discern  a   reasonable  doubt   as  to          predisposition.  In the circumstances at bar, however, the error,          which tilted  in appellant's  favor, is of  no consequence.   See                                                                        ___          Cook v. Rhode  Island Dep't of Mental  Health, Etc., 10  F.3d 17,          ____    ___________________________________________          23-24 (1st Cir. 1993).                                          14          authorities.  Id.  Yet, the two situations are far different from                        ___          a qualitative  standpoint.   And on  the facts  of this  case, we          believe that  a jury  reasonably could  conclude that  appellant,          unlike  Jacobson, was predisposed  to commit  the crime  from the          inception.   Just  as "ready  commission" of  a crime  can "amply          demonstrate[]  the  defendant's  predisposition,"  id., so,  too,                                                             ___          demonstrated readiness to commit a potential crime can suffice to          prove predisposition.                    We discount the  initial mailing as  too cryptic to  be          meaningful.   Starting  with Gatewood's  second letter,  however,          appellant's  reaction   to  the   postal  inspectors'   overtures          exhibited considerable enthusiasm.   And when the  government, by          forwarding  the Fetco catalog,  first presented appellant  with a          concrete  opportunity to purchase  child pornography    less than          one  year after  its initial  contact    he promptly wrote  out a          check and placed  an order for  two items.   Seven months  later,          when  his first  order had  not borne  fruit, appellant  placed a          second  order  for  illicit materials.    Although  these orders,          through no fault  of appellant's, went unfilled,  a rational jury          nonetheless  could have found  that appellant's placement  of the          orders manifested  the  required  predisposition  to  commit  the          crime.  We do not see how the government's failure to  fill these          earlier   orders,   thereby  thwarting   appellant's   successful          completion of the crime, could serve to undercut the inference of          readiness that appellant's conduct conveyed.                    Moreover, such  an  inference is  strengthened here  by                                          15          other circumstantial proof.   For one thing, the  jury had before          it the evidence of appellant's subsequent expressions of interest          in purchasing child pornography.  For another thing, the jury had          the evidence uncovered during the search of appellant's apartment            evidence from  which a rational finder of  facts might conclude          that  appellant  dealt  with a  commercial  distributor  of child          pornography  wholly independent of the federal government.  For a          third  thing, appellant's  references over  time  to matters  not          mentioned  by the government,  such as "Danish  bookstores," lent          credence to  the inference  of predisposition.   Hence,  Jacobson                                                                   ________          notwithstanding, the  district court appropriately  submitted the          issue of entrapment to the jury.                    We think that there is also a  second, more fundamental          distinction between Jacobson and the  case at hand:  the Jacobson                              ________                             ________          Court's core  concern simply  is not vellicated  by the  facts of          record here.    In Jacobson,  the  Court questioned  whether  the                             ________          defendant's predisposition  arose independently,  rather than  as          the product of governmental efforts.  See Jacobson, 112 S. Ct. at                                                ___ ________          1541.  The Court's concern derived from the  fact that nearly all          the material furnished  by the government purported  to originate          with consumer research  companies or lobbying  organizations that          promoted  sexual freedom and  freedom of  speech, and  that urged          purchase  of  their  materials,  which  were  not  clearly  child          pornography,  as  a means  of raising  funds for  their political          mission.   See id. at 1542.  Before  and during the relevant time                     ___ ___          frame, Jacobson  had  expressed solidarity  with these  political                                          16          goals, but  he had  not indicated in  any way  that he  wished to          receive child pornography.  On these facts, the Court feared that          "by waving the  banner of individual  rights and disparaging  the          legitimacy  and  constitutionality  of  efforts to  restrict  the          availability of sexually explicit materials, the Government . . .          exerted substantial  pressure on  petitioner to  obtain and  read          such  material as  part of  a  fight against  censorship and  the          infringement of individual rights."  Id.                                               ___                    By contrast, no  such high-minded appeals  characterize          the instant case.  Here,  unlike in Jacobson, the jury reasonably                                              ________          could have  found that defendant  eagerly responded  to each  and          every  solicitation in a manner indicating his immediate interest          in receiving forbidden materials.  Here, unlike  in Jacobson, the                                                              ________          government-sponsored  overtures for the most part did not purport          to come from political organizations, but from private collectors          and commercial  distributors.11   And, finally,  here, unlike  in          Jacobson,  the material  promoted  by  the  mailings  was  easily          ________          recognizable as  containing child pornography.  In  short, a jury          reasonably could have  concluded that this was  not, as appellant          would  have  it,  Jacobson redux.    That  is  to say,  the  jury                            ________          reasonably could have  thought that this was not a  case in which          government agents "implant[ed] in the mind of  an innocent person                                        ____________________               11To be sure,  the one-page solicitation originally  sent by          Fetco  did express  a  political  opinion in  the  sense that  it          criticized  "censor[ship]"  of  pornography.     But,  unlike  in          Jacobson,  112 S. Ct. at  1542, the Fetco  circular did not claim          ________          that sales proceeds would fund lobbying activities or be used for          some equally ennobling purpose.                                          17          the disposition to  commit the alleged offense  and induce[d] its              ___________          commission  in order  that  they  may prosecute."    Id. at  1543                                                               ___          (citation omitted).12          III.  OTHER CHALLENGES TO THE CONVICTION          III.  OTHER CHALLENGES TO THE CONVICTION                    Appellant  stages two other  offensives in his campaign          to overcome  the jury verdict.   Neither offensive gains  him any          ground.                              A.  Outrageous Misconduct.                              A.  Outrageous Misconduct.                                  _____________________                    Appellant  asserts   that  the   prolonged  series   of          undercover   operations   mounted   by  the   postal   inspectors          constituted  misconduct so fundamentally unfair as to violate the          due  process clause  of  the  Fifth Amendment.    In terms,  this          assertion  bears a family  resemblance to appellant's  assault on          the failure of the judge and  jury to find entrapment.  It  fares          no better.                    Government  agents run awry  of the due  process clause          if, and to the extent  that, their investigative conduct violates          "fundamental fairness" and is "shocking to the universal sense of                                        ____________________               12We  do  not believe  that the  Jacobson Court  intended to                                                ________          hamstring  routine undercover operations of the kind that Gifford          encountered.    The Court  took  pains  to  observe that  if  the          government  agents had "simply offered petitioner the opportunity          to order child pornography through  the mails, and petitioner . .          . had promptly availed himself  of this criminal opportunity,  it          is unlikely that  his entrapment defense  would have warranted  a          jury instruction."   Jacobson, 112 S.  Ct. at 1541.   The Court's                               ________          comment applies a fortiori in  the instant case, especially since                          _ ________          the  issue  here is  not  whether the  factual  panoply warranted          submission of the entrapment defense to the jury as a theoretical          possibility,  but whether, after the judge instructed the jury on          entrapment and  the jury rejected  the defense on the  facts, its          verdict should  be  overturned because  entrapment  suffused  the          scene as a matter of law.                                          18          justice."   United States v.  Russell, 411 U.S. 423,  432 (1973).                      _____________     _______          We  recently stated  that, in  theory,  "the government's  active          participation  in a  criminal venture  may  be of  so shocking  a          nature  as  to  violate  a  defendant's  right  to  due  process,          notwithstanding  a  defendant's  predisposition  to  commit   the          crime."  United  States v. Panitz, 907 F.2d  1267, 1272 (1st Cir.                   ______________    ______          1990)  (citations omitted).   Yet, we cautioned  in virtually the          same breath  that this  court had  never encountered  a situation          where   that  sort   of  government   involvement  "crossed   the          constitutional line."  Id.  The case before us does not break the                                 ___          string.                    We do not see a need for exegetic comment.  Despite the          fact  that undercover operations by their nature involve elements          of furtiveness, duplicity,  and manipulation, we have  never held          that such  initiatives are  per se unfair.   To the  contrary, we                                      ___ __          think that the Executive Branch  is free, within broad limits, to          set  such snares  for unwary  criminals.   See  United States  v.                                                     ___  _____________          Santana, 6 F.3d 1, 5-6 (1st Cir. 1993); United States v. Connell,          _______                                 _____________    _______          960 F.2d 191, 194, 196 (1st Cir. 1992); see also United States v.                                                  ___ ____ _____________          Mitchell, 915  F.2d 521, 526  (9th Cir. 1990)  (upholding reverse          ________          sting operation in  child pornography case), cert. denied, 111 S.                                                       _____ ______          Ct.  1686  (1991).    In  this connection,  it  is  important  to          understand that  the fairness of  employing a particular  form of          undercover operation  is in  part a function  of the  crime under          investigation.   See United  States v. Osborne,  935 F.2d  32, 37                           ___ ______________    _______          (4th  Cir.  1991); see  also  Santana,  6  F.3d at  7  (outlining                             ___  ____  _______                                          19          considerations relevant to assessing  the outrageousness vel  non                                                                   ___  ___          of  an  undercover   officer's  conduct  in  a   "reverse  sting"          operation).                    We  cannot say that, here, the postal inspectors lacked          a rational basis for mounting a long-running series of undercover          operations in an  effort to  curb unlawful  trafficking in  child          pornography.13   See  Osborne, 935  F.2d  at 37  (concluding that                           ___  _______          "undercover  operations  provide  a   [lawful]  means  by   which          participants in the clandestine child pornography industry can be          detected").     And,  moreover,   fundamental  fairness   is  not          compromised  in a  child  pornography  case  merely  because  the          government supplies  the contraband.   See,  e.g., Mitchell,  915                                                 ___   ____  ________          F.2d at  526; United States  v. Musslyn,  865 F.2d 945,  947 (8th                        _____________     _______          Cir. 1989), cert. denied, 114 S. Ct. 443 (1993); United States v.                      _____ ______                         _____________          Driscoll, 852 F.2d 84, 86 (3d Cir.  1988); cf. Santana, 6 F.3d at          ________                                   ___ _______          8  (holding that  DEA's actions  in supplying  a large  amount of          heroin to suspected drug dealers did not warrant dismissal).                    In  this  instance,  the  government's  strategy  seems          fairly calculated  to combat the  spread of child  pornography by          putting consumers of forbidden depictions at warranted risk.  The          postal inspectors' communiques do not strike us as possessing the                                        ____________________               13In  the proceedings  below, the  district court  suggested          that due process requires that  the government must always harbor          a reasonable suspicion of criminal wrongdoing before targeting an          individual  for  testing   in  the  crucible  of   an  undercover          investigation.   We  reject  this  idea.   See  United States  v.                                                     ___  _____________          Espinal, 757 F.2d  423, 426 (1st  Cir. 1985) (finding  undercover          _______          operation  to be  lawful vis-a-vis  a  defendant as  to whom  the          government had no previous suspicion of criminal activity).                                          20          capacity to  overbear a guileless  recipient's will.   They were,          instead,   neutral  tests   designed  to   assay  a   recipient's          willingness  to  order   contraband.    In  the  same  vein,  the          government's promotional  literature, read  as a  whole, was  not          unfairly  deceptive; although the Fetco brochure indicated on its          face  that the  goods  offered  for sale  did  not contain  child          pornography, it was  within the jury's province to  conclude that          appellant  must have realized  from the circular's  contents that          this was an apocryphal disclaimer.  Nor does the temporal span of          the  government's  undercover  operation make  it  vulnerable  to          appellant's attack.  Although the sting ultimately stretched over          four  years, appellant placed a  mail order for illicit materials          within  a  year  after  first  being  contacted   by  the  postal          inspectors.     The  government's   decision   to  continue   its          investigation  of  appellant  under  such  circumstances  is  far          removed from outrageous conduct.  See, e.g., Musslyn, 865 F.2d at                                            ___  ____  _______          946 (upholding undercover sting operation that lasted nearly five          years); United  States v. Goodwin,  854 F.2d 33, 35-36  (4th Cir.                  ______________    _______          1988) (similar; operation lasted nearly four years).                    In a nutshell, nothing in this record distinguishes the          government's  actions in any  material respect from  the numerous          sting operations that  we, and other courts, have  upheld in case          after case  after case.   See  Santana, 6 F.3d  at 4  (collecting                                    ___  _______          cases);   United States v. Moore,  916 F.2d 1131, 1139  (6th Cir.                    _____________    _____          1990); Panitz,  907 F.2d  at 1272-73  (collecting cases);  United                 ______                                              ______          States v.  Thoma, 726 F.2d  1191, 1199 (7th Cir.),  cert. denied,          ______     _____                                    _____ ______                                          21          467 U.S. 1228 (1984).   There is no point in  retracing footsteps          that have beaten a well-marked path.   The district court did not          err  in rejecting  appellant's claim  of outrageous  governmental          misconduct.                        B.  Constitutionality of the Statute.                        B.  Constitutionality of the Statute.                            ________________________________                    Appellant next asserts that the statute of  conviction,          18  U.S.C.   2252(a)(2), quoted supra note 1, is unconstitutional                                          _____          on its face.  Because  the issue presented poses an unadulterated          question of law,  appellate review is plenary.   See Liberty Mut.                                                           ___ ____________          Ins. Co.  v. Commercial Union  Ins. Co.,  978 F.2d 750,  757 (1st          ________     __________________________          Cir. 1992); Stauble v. Warrob, Inc., 977 F.2d 690,  693 (1st Cir.                      _______    ____________          1992).                    Appellant  claims that  section  2252(a) fails  to pass          constitutional muster  because it does not require proof that the          accused knew that the persons depicted in the described materials          were  under  age.   This claim  is premised  upon the  holding in          United States v. X-Citement Video,  Inc., 982 F.2d 1285 (9th Cir.          _____________    _______________________          1992), petition for cert. filed (Nov. 5, 1993) (No. 93-723).  The                 ________ ___ _____ _____          conclusion of the two-judge X-Citement Video majority rested on a                                      ________________          single base,  having two components.   First,  the court  decided          that the  term "knowingly,"  as employed  in section  2252(a)(2),          modifies  only the word  "receives," and  not the  phrase "visual          depiction[s] involv[ing]  the use of a minor engaging in sexually          explicit  conduct";  and,  second, the  court  decided  that this          syntax renders the  statute constitutionally  infirm because,  by          failing to predicate guilt on  actual knowledge of the materials'                                          22          contents,  particularly the age(s)  of the persons  depicted, the          statute  allows a  person to  be convicted  without proof  of the          requisite  scienter.  See X-Citement  Video, 982 F.2d at 1289-92;                                ___ _________________          see also Osborne v. Ohio, 495 U.S. 103, 112-15 (1990) (discussing          ___ ____ _______    ____          constitutional requirement that prohibitions on child pornography          include  some  element of  scienter); see  generally New  York v.                                                ___  _________ _________          Ferber,  458  U.S.   747,  765  (1982)  (explaining   that  child          ______          pornography statutes must  contain "some element of  scienter" to          survive constitutional attack).                    The  X-Citement Video opinion is something of a pariah.                         ________________          With regard  to the first  component of its holding,  every other          appellate court that has read section 2252(a) has determined that          the  provision  imposes  a  scienter  requirement  vis-a-vis  the          contents of an interdicted mailing.   See, e.g., United States v.                                                ___  ____  _____________          LaChapelle, 969 F.2d 632, 638  (8th Cir. 1992); Osborne, 935 F.2d          __________                                      _______          at 34  & n.2; United States v. Duncan,  896 F.2d 271, 277-78 (7th                        _____________    ______          Cir. 1990); United States v.  Marchant, 803 F.2d 174, 176-77 (5th                      _____________     ________          Cir. 1986); United States v.  Garot, 801 F.2d 1241, 1246-47 (10th                      _____________     _____          Cir.  1986).   Indeed, we,  ourselves,  albeit in  a civil  case,          advocated  just such  a  construction of  section  2252(a).   See                                                                        ___          Rodriguez v. Clark Color Lab., Inc.,  921 F.2d 347, 349 (1st Cir.          _________    ______________________          1990).                    Though   these  opinions   predate  X-Citement   Video,                                                        __________________          district courts outside the Ninth Circuit that have been asked to          follow X-Citement Video  uniformly have declined to do  so.  See,                 ________________                                      ___          e.g., United States  v. Edwards, ___ F. Supp. ___, ___ (N.D. Ill.          ____  _____________     _______                                          23          1993) [1993 WL 453461, at  *5] (declaring that notwithstanding X-                                                                         __          Citement Video's contrary view, "the language of   2252 imposes a          ______________          scienter element  as  to  the nature  of  the  proscribed  visual          depictions"); United  States  v. Prytz,  822  F. Supp.  311,  321                        ______________     _____          (D.S.C. 1993) (noting  that, though the X-Citement  Video court's                                                  _________________          rendition "may be correct grammatically, it is not reasonable nor          consistent    with    principles     underlying    constitutional          interpretation of statutes and the courts' obligation to construe          statutes  to  avoid  unconstitutionality  if  possible");  United                                                                     ______          States v.  Long, 831 F.  Supp. 582,  586 (W.D. Ky.  1993); United          ______     ____                                            ______          States v. Kempton, 826 F. Supp.  386, 388-89 (D. Kan. 1993).   No          ______    _______          court  has expressed  support for  the conclusion  reached  in X-                                                                         __          Citement Video.          ______________                    We agree  with the  near-unanimous view,  and with  the          relevant segment of Judge Kozinski's dissent in X-Citement Video,                                                          ________________          982   F.2d  at  1296-97.     In  our   opinion,  section  2252(a)          incorporates  a paragraph-wide scienter requirement.  We read the          term  "knowingly," as  used in  the statute,  to modify  not only          "receives"  but  also  the entire  paragraph,  including  age and          conduct.  Cf. United  States v. Marvin, 687 F.2d  1221, 1226 (8th                    ___ ______________    ______          Cir. 1982)  (interpreting "knowingly"  in 7  U.S.C.   2024(b)  as          modifying  the  entire  remainder  of  the  clause  in  which  it          appears), cert. denied, 460 U.S. 1081 (1983).                    _____ ______                    With regard to  the second component of  the X-Citement                                                                 __________          Video  holding, we  respectfully decline  to  follow the  panel's          _____          determination that the Constitution demands that a defendant must                                          24          have had actual knowledge of the minority of at least one  of the          performers.   We hold instead that the appropriate constitutional          requirement is one  of recklessness, that section  2252 satisfies          it,  and that, therefore,  the statute's scienter  requirement is          constitutionally  adequate.   The  statute's legislative  history          makes it pellucid  that Congress intended  to include a  scienter          requirement, and did  not intend strict criminal liability.   See                                                                        ___          H.R.  Rep. No. 910,  99th Cong., 2d Sess.  6 (1986), reprinted in                                                               _________ __          1986  U.S.C.C.A.N. 5952, 5956  (discussing 1986 amendments  to             2251, 2252, and explaining that "[t]he government must prove that          the  defendant knew  the  character of  the visual  depictions as          depicting a minor  engaging in sexually explicit conduct but need          not  prove that the  defendant actually knew  the person depicted          was in fact under 18 years of age or that the depictions violated          Federal law").  This statutory architecture passes constitutional          scrutiny, for the  Constitution does not require that  an accused          possess actual  knowledge of the  performers' ages.   Rather, the          scienter  requirement  imposed by  section 2252(a)  regarding the          receipt of child pornography is  satisfied if the prosecution can          show reckless disregard of the obvious.  See Osborne, 495 U.S. at                                                   ___ _______          115 (holding that recklessness "plainly satisfies the requirement          laid  down in  Ferber  that  prohibitions  on  child  pornography                         ______          include some element of scienter").                    To  sum  up,  our determination  that  section  2252(a)          survives appellant's  constitutional challenge comports  with the          better-reasoned  cases  and,   at  the  same  time,   honors  the                                          25          prudential  principle   that,  "where  an   otherwise  acceptable          construction  of a  statute  would  raise serious  constitutional          problems,  [courts should]  construe the  statute  to avoid  such          problems  unless such  construction is  plainly  contrary to  the          intent of Congress."   Edward J. DeBartolo Corp.  v. Florida Gulf                                 _________________________     ____________          Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).          ____________________________________          IV.  THE SENTENCE          IV.  THE SENTENCE                    Appellant's final argument concerns  his sentence.   He          claims  that the  lower court  erred in  not essaying  a downward          departure, see  18 U.S.C.    3553(b) (providing, inter  alia, for                     ___                                   _____  ____          departures  if the court ascertains "that  there exists a[] . . .          mitigating circumstance  of any kind  . . . not  adequately taken          into consideration  by the Sentencing  Commission in  formulating          the guidelines  that should  result in  a  [sentence outside  the          guideline  range]"); see also  U.S.S.G.  5K2.0, which  would have                               ___ ____          reduced  his sentence below the guideline sentencing range (GSR).          The government demurs.  It maintains that we lack jurisdiction to          consider this plaint, and, alternatively, that the district court          justifiably refused to depart.   In the peculiar circumstances of          this case, these two propositions  can be collapsed into a single          issue.                    It is by now apodictic that a criminal defendant cannot          ground an appeal on the sentencing court's discretionary decision          not  to depart  below  the  GSR.   See,  e.g.,  United States  v.                                             ___   ____   _____________          Tardiff, 969  F.2d 1283, 1290  (1st Cir. 1992); United  States v.          _______                                         ______________          Amparo, 961 F.2d  288, 292 (1st Cir.),  cert. denied, 113  S. Ct.          ______                                  _____ ______                                          26          224 (1992);  United States v. Hilton, 946 F.2d 955, 957 (1st Cir.                       _____________    ______          1991); United States v. Romolo, 937  F.2d 20, 22 (1st Cir. 1991).                 _____________    ______          This rule,  like most rules, is subject  to exceptions.  One such          exception  applies  when the  sentencing  court's  declination to          depart results from  a mistake of  law.   See, e.g., Amparo,  961                                                    ___  ____  ______          F.2d at 292; Hilton, 946 F.2d at  957.  In other words, appellate                       ______          jurisdiction may attach if it  appears that the failure to depart          stemmed from the  sentencing court's mistaken impression  that it          lacked the legal  authority to deviate  from the guideline  range          or,  relatedly, from  the court's  misapprehension  of the  rules          governing departures.   In  this instance,  we think  appellant's          case fits within the exception.                    At sentencing, appellant moved for a downward departure          on  various  grounds.    He  claimed that  he  suffered  from  an          extraordinary mental and emotional  condition within the  purview          of   U.S.S.G.    5H1.3  and  5K2.13;  that  his  offense  conduct          represented  an  isolated,  aberrant act  occurring  against  the          backdrop of an  otherwise exemplary lifestyle, which  brought its          commission within reach of U.S.S.G.  5K2.0 and Ch.1, Pt.A, intro.          comment.  4(d); and  that  he would  be especially  vulnerable to          abuse  by other  convicts if  incarcerated.   The  district court          rejected all three  bases for departure, and  sentenced appellant          to eighteen months in prison (the low end of the GSR), but stayed          the  execution  of  sentence  sua  sponte.   On  appeal,  Gifford                                        ___  ______          abandons his  vulnerability claim  but stands fast  by his  other          importunings.   And  he urges  us to  find, inter alia,  that the                                                      _____ ____                                          27          district court mistakenly  believed itself to be  bereft of legal          authority to depart downward.                    While  we express  no opinion  concerning the  ultimate          disposition  of  Gifford's   case,  a  careful  reading   of  the          sentencing  transcript persuades  us  that,  at  least  as  to  a          possible departure under section 5K2.0, appellant's argument  has          merit.14   In  particular, we  question  whether the  court below          recognized  the extent to  which it was permitted  to rely on its          "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."   United States v.                                                           _____________          Rivera, 994 F.2d 942, 951 (1st Cir. 1993).15          ______                    Under the sentencing  statute, the relevant guidelines,          and associated materials, a  district judge is obligated to  mete          out a sentence within the  GSR unless a permissible feature takes          the  case "outside the  Guidelines' `heartland' and  make[s] it a          special, or unusual,  case."  Id. at 949;  see also United States                                        ___          ___ ____ _____________                                        ____________________               14Because we remand  for resentencing based on  our analysis          of section 5K2.0,  we do not  separately consider sections  5H1.3          and 5K2.13.   We  note, however,  that  to some  extent the  same          factors underpin the  several departure approaches in  this case.          And in all events, the district court is free, in its discretion,          to revisit sections 5H1.3 and 5K2.13.               15We reach  this conclusion without in any  way faulting the          district court.   Our opinion in Rivera, a case that both refined                                           ______          and  elaborated earlier circuit  precedent, did not  emerge until          some two  weeks after Gifford  had been  sentenced.  We  expect a          great  deal from district  judges, but we  do not  expect them to          foretell  the  future  with complete  clairvoyance.    See, e.g.,                                                                 ___  ____          United  States  v.  Ladd,  885  F.2d 954,  961  (1st  Cir.  1989)          ______________      ____          (acknowledging that "robes and gavels are the tools of a jurist's          trade   not tea leaves or crystal balls").                                          28          v. Aguilar-Pena,  887 F.2d 347,  349 (1st Cir.  1989) (explaining             ____________          the "heartland" concept).  As  Rivera makes clear, there are only                                         ______          nine  "forbidden  departures,"  that is,  nine  factors  that are          categorically ineligible to serve as  the basis for a  departure.          See  Rivera, 994  F.2d  at 948-49  (listing  race, sex,  national          ___  ______          origin, creed,  religion, socioeconomic status,  lack of youthful          guidance, substance abuse,  and personal financial difficulties).          While all other factors can  be taken into account in structuring          the  departure  calculus,  the architecture  is  complex.   Those          factors specifically enumerated  in the guidelines reside  in one          category    but we must  subdivide that  category into  moieties:          factors that are  the stuff of encouraged departures, and factors          that are  discouraged,  albeit not  prohibited,  as a  basis  for          departure.    See  id.  at  949.    In  a  second   category  are                        ___  ___          "[c]ircumstances that may warrant departure from the guidelines .          . . [but which] cannot,  by their very nature, be comprehensively          listed and analyzed in  advance."  U.S.S.G.    5K2.0, p.s.   With          respect to such  unforeseen circumstances, the district  court is          to "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."  Rivera, 994 F.2d at 949.                                                  ______                    Of course,  the  district court  did not    indeed,  it          could not, see  supra note 15   analyze this case in terms of the                     ___  _____          Rivera  model.    But  the  judge's comments  at  sentencing  are          ______          evocative  of the misperception  of hamstrung discretion  that we          sought to correct  in Rivera, 994 F.2d at 953-54.  The sentencing                                ______                                          29          transcript  makes  it  very  clear  that  the  judge  viewed  the          circumstances  of  the  case  as  unusual  in  certain  important          respects.  The judge stated that, given appellant's                    psychological background [and]  his inability                    to reason through from . . . cause to effect,                    .  .  .  he  did  not as  a  matter  of  fact                    recognize  the  peculiarity   of  the  sexual                    references   in   the   Gatewood    .   .   .                    correspondence; he  did not  comprehend as  a                    matter  of  fact  the  socially  unacceptable                    nature of the materials advertised in the Far                    Eastern  Trading  Company  [and]  Canamerican                    catalogs; he throughout  believed that he was                    acting within the law, and indeed he believed                    from  the nature  of  the government's  sting                    operation that the  materials advertised were                    legal for trade; and . . . he did assume that                    any of the advertisers who solicited him were                    operating legally through the mail.          Based on these findings, the  judge concluded that appellant "was          a person entirely without mens  rea" and that he was "unlike  the          normal person."                    To  be sure,  the judge,  having  made these  findings,          eschewed  a  downward  departure.    He  stated  that  he  feared          departing because  "[t]his case  may be an  example of  the adage          that hard cases  make bad law."  Yet, after  Rivera, that bromide                                                       ______          sweeps less  broadly in the  world of guideline sentencing.   Cf.                                                                        ___          Rivera, 994 F.2d  at 949 (observing that, in  the final analysis,          ______          "the Guidelines cannot dictate how  courts should sentence in . .          .  special,  unusual,   or  other-than-ordinary  circumstances").          After Rivera, hard cases often make viable departure candidates.                ______                    Just  as  deciding  whether  to  depart  sometimes  may          present a  difficult judgment  call for  a sentencing court,  the          evaluation of departure rulings  frequently requires an appellate                                          30          court to walk a tightrope, ceding "full awareness of, and respect          for" the  trial court's "superior  `feel' for  the case,"  United                                                                     ______          States  v.  Diaz-Villafane, 874  F.2d  43, 50  (1st  Cir.), cert.          ______      ______________                                  _____          denied, 493  U.S.  862 (1989),  yet  reviewing de  novo,  without          ______                                         __  ____          deference to  the trial court's outlook, the question of "whether          or  not the  allegedly special  circumstances  . .  . are  of the          `kind' that the  Guidelines, in principle, permit  the sentencing                                       __ _________          court  to consider  at all," Rivera,  994 F.2d  at 951.   In this                                       ______          case, we think that the two methodologies can peacefully coexist,          for the circumstances identified by  the district court might, as                                __________ __  ___ ________ _____          a matter of  law, support a downward  departure.  See id.  at 949                                                            ___ ___          (noting that a district court's determination of what sentence is          appropriate can be informed by 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")  (citations          omitted).                    In  brief,  we  do not  believe  resentencing  would be          pointless   in  this  instance,  for  we  discern  the  requisite          "significant  possibility"  that  the  facts,  as  found  by  the          sentencing court, would  permit that court  "lawfully to order  a          departure."  Rivera, 994 F.2d at 953.  Indeed, the district judge                       ______          himself  observed  that  "[i]f  it  were open  to  me  under  the          guidelines  to  depart, I  would  depart  and  I would  impose  a          sentence of  . . . probation."   Because Rivera makes it possible                                                   ______          that such a  departure is legally open to the sentencing court in                                          31          the unusual  circumstances of this  case, we think the  course of          prudence is  to vacate the  defendant's sentence  and remand  for          resentencing.16  Cf.  United States v. Tavano, ___  F.3d ___, ___                           ___  _____________    ______          n.5 (1st Cir. 1993) [No. 93-1492,  slip op. at 8 n.5]  (remanding          for resentencing  and suggesting that,  if there is "room  for an          objectively  reasonable division  of opinion  on  what the  judge          intended,"  the defendant should  be given "the  benefit of [the]          doubt").  In adopting this  course, we intimate no opinion either          as  to what appellant's sentence  should be or  as to whether the          district court should sentence within or beneath the GSR.                    The judgment of conviction is affirmed, the defendant's                    The judgment of conviction is affirmed, the defendant's                    _______________________________________________________          sentence is vacated, and the  case is remanded for  resentencing.          sentence is vacated, and the  case is remanded for  resentencing.          ________________________________________________________________          The district  court shall afford  both parties an  opportunity to          The district  court shall afford  both parties an  opportunity to          _________________________________________________________________          supplement the sentencing record.          supplement the sentencing record.          ________________________________                                        ____________________               16We also are  tugged in this  direction by our  recognition          that,  at the original sentencing hearing, the prosecution agreed          that probation would be an appropriate disposition.                                          32
