
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 97-1233                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                                  ERIC GRAY SNYDER,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                              _________________________               James F. Lang,  Assistant United States Attorney,  with whom               _____________          Donald K.  Stern, United States  Attorney, was on brief,  for the          ________________          United States.               Victoria L. Nadel for appellee.               _________________               Murray  Kohn  on  brief  for  Massachusetts  Association  of               ____________          Criminal Defense Lawyers, amicus curiae.                              _________________________                                  February 12, 1998                              _________________________                    SELYA, Circuit  Judge.  In this single-issue sentencing                    SELYA, Circuit  Judge.                           ______________          appeal,  the government  implores  us  to  set  aside  defendant-          appellee  Eric  Gray  Snyder's  sentence.    The  district  court          predicated  that sentence  on a  disparity  between the  sentence          mandated for  the offense of conviction by the federal sentencing          guidelines and the sentence Snyder likely would have received had          state authorities prosecuted  him.  See United States  v. Snyder,                                              ___ _____________     ______          954  F. Supp.  19,  22 (D.  Mass.  1997) (memorandum  explicating          reasons  for sentence).   We  thus confront  a question  of novel          impression  in   this  circuit:    Is   federal/state  sentencing          disparity  a permissible  basis  for a  downward  departure?   We          answer that question  in the negative.  Consequently, Snyder must          be resentenced.          I.  BACKGROUND          I.  BACKGROUND                    We touch lightly upon the facts of the case as they are          only obliquely  relevant to  the legal problem  that this  appeal          presents.   On January  10, 1995, a  known drug user,  John Hawk,          told  a Boston  police officer, William  Doogan, that  Snyder had          robbed  him and his  paramour at gunpoint and  stolen a number of          Valium tablets.  Hawk further stated that Snyder, driving a black          Honda and accompanied  by Frank Diaferio  (a reputed drug  dealer          known to Doogan), was headed toward Roslindale.  Doogan knew that          Diaferio  resided at  17 Murray  Hill Road  in Roslindale  and he          immediately arranged for police surveillance of that locus.  When          Snyder  and Diaferio  arrived in  the  black Honda,  the officers          found a loaded  .32 caliber pistol in  a locked briefcase  in the                                          2          car's trunk.  Doogan placed Snyder under arrest.  During a search          at the station house, police officers recovered 26 Valium tablets          from Snyder's pants pocket.                    Initially,  Massachusetts  authorities  charged  Snyder          under  Mass. Gen.  L. ch.  269,    10(a)  (1990) with  unlawfully          carrying  a  firearm,  an offense  punishable  by  a 2 -to-5-year          prison  term.   When  a  federal  grand  jury later  returned  an          indictment that charged  Snyder with being a  felon in possession          of  a firearm  in  violation  of 18  U.S.C.    922(g)(1)  (1994),          Massachusetts dropped the state charge.                    In  due course,  a  federal  trial  jury  found  Snyder          guilty.  The  probation office thereafter prepared  a presentence          investigation report (the PSI Report).  The  PSI Report indicated          that  Snyder's extensive criminal history rendered him subject to          the  sentencing   enhancement  provisions  of  the  Armed  Career          Criminal Act,  18 U.S.C.    924(e) (1994) (ACCA).   Employing the          corresponding sentencing guideline, USSG   4B1.4 (Nov. 1995), the          PSI Report  projected the guideline sentencing range  (GSR) to be          262 to 327 months.                    Judge  Harrington  conducted   a  three-day  sentencing          proceeding.    On October  9,  1996,  Snyder's  counsel  and  the          prosecutor  sparred  over  Snyder's insistence  that  he  was not          subject to the ACCA because  certain of his prior convictions did          not qualify  as predicate offenses  thereunder.  See 18  U.S.C.                                                             ___          921(a)(20)  (1994)  (delineating   various  exclusions  from  the          taxonomy of eligible predicate offenses).   In the course of that                                          3          hearing,  Judge  Harrington   expressed  reservations  about  the          steepness  of the  projected sentencing  range.   Afterwards,  he          issued  a  memorandum that  noted  his "grave  concern"  with the          "gross disparity" between the GSR and the  punishment that Snyder          would have  received had state authorities pursued and obtained a          conviction  on  the originally  charged state  offense.   In that          memorandum, the  judge made no  bones about his disdain  for "the          unfettered  and unreviewable  discretion  of  the  United  States          Attorney" to  prosecute in federal court the  "`local' offense of          carrying  a  firearm."   He  concluded  by scheduling  a  further          hearing   to  address  the  issues  "whether  this  disparity  in          sentences and the de facto selective prosecution of the defendant                            __ _____          raise  any constitutional concerns and whether the combination of          the  above two  issues justify  [sic] a downward  departure under          USSG   5K2.0."                    At  the resumed  hearing, held  on  December 12,  1996,          Judge  Harrington reiterated his belief that sentencing Snyder to          a 21-year prison term would  constitute a "gross violation of the          principles of  justice."   Engaging in  what some  might consider          wishful  thinking, the  judge  then predicted  the demise  of the          sentencing guidelines:                    I  said  yesterday  to  the  U.S.  Attorney's                    Office,  this  type  of  de facto,  selective                    prosecution continues.   And when there  is a                    disparity  of  over  20  years  for  the same                    offense, . . . the guidelines are going to be                    dismantled because the federal judiciary will                    no  longer, no longer  put up with  it.  It's                    going to be dismantled.                    Judge  Harrington   convened  the  third,   and  final,                                          4          sentencing session  on January  14, 1997.   He ruled  that Snyder          fell within the ambit of the  ACCA and that USSG  4B1.4 therefore          applied.   He computed the GSR to  be 235 to 293  months.1  Judge          Harrington then  departed downward  pursuant to  USSG  5K2.0  and          sentenced Snyder  to an  incarcerative term  of  180 months  (the          mandatory minimum under  the ACCA).   He  premised the  departure          squarely  on  the   ground  that  the   federal/state  sentencing          disparity  created by  interleaved  federal  and  state  criminal          jurisdiction  over  Snyder's  conduct "is  contrary  to  the very          objective of  and theory upon  which the Guidelines  are grounded          and  therefore takes this case out  of the heartland and makes it          atypical."   Snyder, 954 F. Supp. at 22.2  The sentencing court's                       ______          rescript repeatedly condemns a system that cedes broad discretion          to prosecutors to determine who  will be charged federally   and,          thus,   exposed  to  potentially  harsher  sentences     when  an          offender's  conduct  violates  both federal  and  state  criminal                                        ____________________               1The difference between the GSR projected in the PSI  Report          and that  actually used stemmed from Judge Harrington's finding            not contested on appeal   that the government had not proven that          Snyder committed an armed robbery.   This finding shrunk Snyder's          base offense level  from 34 to 33, see  USSG  4B1.4(b)(3)(B), and                                             ___          effected a commensurate decrease in the GSR.               2On  appeal,  Snyder  attempts to  divert  our  attention to          alternative  rationales   that  arguably  support   the  downward          departure.   But Judge Harrington's decision makes  no mention of          such factors.   To the  contrary, he expressly stated  that "[t]o          this Court the issue raised is . . . one of disparity between the          sentences to be imposed."   Snyder, 954 F. Supp.  at 22.  As  our                                      ______          analysis must focus on the reasons given by the district court in          support  of a  departure, we take  no view  of Snyder's  post hoc          justifications.  See  United States v. Dethlefs, 123  F.3d 39, 43                           ___  _____________    ________          (1st Cir. 1997);  United States v. Jackson, 30 F.3d 198, 202 (1st                            _____________    _______          Cir. 1994).                                          5          codes.  See,  e.g., id. at 21  (disparaging "disparate sentencing                  ___   ____  ___          treatment"   brought  about   "by   the   exercise  of   absolute          prosecutorial  discretion");  id.  at 22  ("For  where  unbridled                                        ___          power, unchecked by judicial scrutiny, can by fiat determine that          a certain person from  among many similarly situated shall  serve          such a disparate sentence for  the same offense, then the balance          of  governmental powers has  become distorted and  the liberty of          every individual is held hostage  to the potential tyranny of the          Executive Branch.").          II.  STANDARD OF REVIEW          II.  STANDARD OF REVIEW                    We  deal  here only  with  the  government's sentencing          appeal.3   We review a  district court's decision to  depart from          the guideline sentencing range for abuse of discretion.  See Koon                                                                   ___ ____          v.  United  States,  116  S.  Ct.  2035,  2046-47  (1996).    Our              ______________          examination proceeds stepwise.   First, we ascertain  whether the          guidelines  permit  the  sentencing  court's  stated  ground  for          departure.  If so, we examine the record to discern the  adequacy          of the  factual support that undergirds the  departure.  Finally,          if the departure rests on  satisfactory record support, we assess          the  reasonableness of  its  magnitude in  light  of the  factual          predicate.   See United  States v. Dethlefs,  123 F.3d  39, 43-44                       ___ ______________    ________          (1st  Cir.  1997).    Here,  the  government  concedes  that  the          departure  decision stands  or falls  on the  first prong  of the                                        ____________________               3Snyder appealed his conviction and his classification as an          armed  career criminal.   We heretofore affirmed  his conviction.          See United States v. Snyder, No. 97-1187 (1st Cir. Jan. 29, 1998)          ___ _____________    ______          (unpublished).                                          6          test.                    Whether the guidelines countenance a particular  ground          for  departure is  a question of  law.   See Koon, 116  S. Ct. at                                                   ___ ____          2047.  While this legal question technically  falls within Koon's                                                                     ____          unitary  abuse-of-discretion  rubric,  "[a]  district  court   by          definition abuses its discretion when  it makes an error of law."          Id.  We determine  the existence vel non  of legal error  without          ___                              ___ ___          special deference  to the sentencing  court's views.   See United                                                                 ___ ______          States  v. Brennick, ___ F.3d  ___, ___ (1st  Cir. 1998) [No. 96-          ______     ________          1969, slip op. at 9].          III.  ANALYSIS          III.  ANALYSIS                    We turn  now to  the validity  of the district  court's          stated ground  for departure.   The twin stanchions on  which our          analytic framework  rests are  the  generic departure  guideline,          USSG   5K2.0   (a  guideline   that  flows   directly  from   the          congressional command embodied in 18 U.S.C.   3553(b) (1994)) and          the Court's opinion in Koon.                                 ____                    Section  5K2.0  permits a  sentencing court  to deviate          from the  range indicated  by an  otherwise applicable  guideline          computation  if it  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          considering  whether an  appropriate  "aggravating or  mitigating          circumstance" exists, the  court first must ask  "[w]hat features          of  th[e]  case,  potentially, take  it  outside  the Guidelines'          `heartland' and make of it a special, or unusual, case[.]"  Koon,                                                                      ____                                          7          116  S. Ct.  at 2045 (quoting  United States v.  Rivera, 994 F.2d                                         _____________     ______          942, 949 (1st Cir. 1993)).  Judge Harrington believed that he had          identified such  a feature.   In his view, the  disparity between          the sentence that Snyder would  have received if convicted  under          Massachusetts law and the sentence  mandated by USSG  4B1.4 was a          mitigating circumstance  that brought Snyder's  case outside  the          heartland of armed career criminal cases and justified a downward          departure.  See  Snyder, 954 F. Supp. at  22.  It falls  to us to                      ___  ______          test this conclusion.                    In mounting this inquiry, we do not write on a pristine          page.   Although  the Sentencing  Commission  does not  expressly          proscribe  federal/state  sentencing disparity  departures,  five          federal  appellate  courts   have  taken  the  measure   of  such          departures.    All   have  held  that   federal/state  sentencing          disparity is never a valid basis  for a downward departure.   See                                                                        ___          United States v. Searcy, ___ F.3d ___, ___ (11th Cir. 1998) [1998          _____________    ______          WL 10237, at *2];  United States v.  Deitz, 991 F.2d 443,  447-48                             _____________     _____          (8th Cir. 1993); United  States v. Haynes, 985 F.2d 65, 69-70 (2d                           ______________    ______          Cir. 1993); United States v. Sitton, 968 F.2d  947, 962 (9th Cir.                      _____________    ______          1992); United  States v. Dockery,  965 F.2d  1112, 1117-18  (D.C.                 ______________    _______          Cir. 1992).   This  impressive array  of authority resists  ready          rejection.                    Snyder  harps on  two facts:   most of  these decisions          predate Koon,4  and federal judges  are less free under  the Koon                  ____                                                 ____                                        ____________________               4The lone  exception is  Searcy, a  case decided  after this                                        ______          case was briefed and argued.                                          8          regime  to exorcise specific factors from the departure calculus.          See Koon, 116  S. Ct. at  2051; Dethlefs, 123  F.3d at 46.   That          ___ ____                        ________          rejoinder is  true as far as  it goes    but it does not  go very          far.   We are,  of course, respectful  of the change  in emphasis          that   Koon  betokens.     Still,  "[n]otwithstanding  that  most                 ____          categorical interpretations are disfavored under the Koon Court's                                                               ____          regime, some boundaries  are essential if the guidelines  are not          to  be emptied of  all meaning."   Dethlefs, 123 F.3d at  47.  So                                             ________          viewed,  the pivotal  question reduces  to whether  federal/state          disparity trenches upon such an essential boundary.                    The letter of the sentencing guidelines is unhelpful in          this instance.    Departures based  on  federal/state  sentencing          disparity  are  not  expressly  permitted  or  forbidden  in  the          guidelines'   text,  nor   are  they  explicitly   encouraged  or          discouraged.  As a result, we must mull the "structure and theory          of both relevant  individual guidelines and the  Guidelines taken          as a whole," Koon, 116 S.  Ct. at 2045 (quoting Rivera, 994  F.2d                       ____                               ______          at  949),  in  our  effort  to  ascertain  whether  this   factor          conceivably  may  be   of  a  kind,  or  present   to  a  degree,          inadequately  considered by the  Commission (and thus  capable of          removing a  particular case  from the  "heartland" sculpted by  a          given  guideline), see United  States v. Clase-Espinal,  115 F.3d                             ___ ______________    _____________          1054,  1057 (1st  Cir.  1997).   Relevant  federal statutes,  the          guidelines themselves, their accompanying official commentary and          policy statements, and the case law inform our inquiry.   See id.                                                                    ___ ___          So too  does our expectation  that such categorical bans  will be                                          9          relatively rare.                    The  Commission's   enabling  statute  directs   it  to          "establish  sentencing policies  and  practices  for the  Federal          criminal justice system that . . . avoid[] unwarranted sentencing          disparities among defendants  with similar records who  have been          found guilty of  similar criminal conduct.  . . ."   28 U.S.C.             991(b)(1)(B) (1994); see also USSG Ch.1, Pt.A, intro. comment. 3.                               ___ ____          The  legislative history makes  it crystal clear  that Congress's          allusion  to  "unwarranted  sentencing  disparities" reflected  a          concern with variations  among federal courts across  the nation,          without reference to their state counterparts.  See United States                                                          ___ _____________          v. Aguilar-Pena, 887 F.2d 347, 351-52 (1st Cir. 1989).  In terms,             ____________          then, the  guidelines seek  to promote  uniform sentencing  among          federal courts in respect to federal crimes.  See Deitz, 991 F.2d                                                        ___ _____          at 447; Sitton, 968 F.2d at 962.                  ______                    The  trial judge  sought  to  elongate this  principle,          speculating that  "it would only  be logical that  Congress would          not favor disparity throughout the criminal justice system in  an          era  of increased Federal-State  cooperation in the investigation          and prosecution  of crime."   Snyder, 954 F.  Supp. at 22.   With                                        ______          respect, we think that elongating the principle in this way would          destroy its structural integrity and, accordingly, that the trial          judge's  surmise is  utterly  inconsistent  with the  guidelines'          theoretical underpinnings.                    If  the guidelines' goal is to promote uniformity among          federal courts when  imposing sentences for federal  crimes, then                                          10          departures   aimed   at  alleviating   federal/state   sentencing          disparity are flatly incompatible with it.  Endeavoring to make a          federal  sentence more  closely approximate  that  which a  state          court might impose  for similar criminal activity  would recreate          the location-based  sentencing  swings that  Congress  sought  to          minimize when  it opted for  a guideline paradigm.5   See Searcy,                                                                ___ ______          ___ F.3d  at ___ [1998 WL 10237, at *2];  Deitz, 991 F.2d at 447-                                                    _____          48;  see  also  Aguilar-Pena,  887  F.2d  at  352  (warning  that               ___  ____  ____________          departures cannot be allowed to subvert Congress's "ardent desire          to  dispense  with  inequalities based  on  localized  sentencing          responses").                    The short of  it is that the guidelines  did not sprout          in a vacuum.  Congress  and the Sentencing Commission erected the          present sentencing  structure against  the skyline  of an  extant          criminal justice system, see Haynes, 985 F.2d at 69; Dockery, 965                                   ___ ______                  _______          F.2d at  1117; see  also Stephen Breyer,  The Federal  Sentencing                         ___  ____                  _______________________                                        ____________________               5One  Commission member illustrated the swings that occurred          in the pre-guidelines era by recounting the following findings:                    The   region  in   which  the   defendant  is                    convicted is  likely to change the  length of                    time  served  from approximately  six  months                    more  if one  is sentenced  in  the South  to                    twelve months  less if  one  is sentenced  in                    central  California.  . .  .    [B]lack [bank                    robbery] defendants  convicted .  . . in  the                    South   are   likely    to   actually   serve                    approximately  thirteen  months  longer  than                    similarly situated bank robbers convicted . .                    . in other regions.          Hearings on Sentencing Guidelines Before the Subcomm. on Criminal          Justice of  the House  Comm. on the  Judiciary, 100th  Cong., 1st          Sess.  554, 676-77  (1987) (testimony  of  Commissioner Ilene  H.          Nagel).                                          11          Guidelines  and the  Key  Compromises Upon  Which  They Rest,  17          ____________________________________________________________          Hofstra L.  Rev. 1 (1988),  and that system  includes overlapping          state  and  federal criminal  jurisdiction.   The  fact  that the          states impose different and varied sentences for criminal conduct          that may also  transgress federal law  is about  as obvious as  a          hippopotamus at a  tea party.  It is  implausible to suppose that          the Commission overlooked this large reality and therefore failed          to account for it in  formulating the guidelines.6  See Dethlefs,                                                              ___ ________          123 F.3d at 47; Clase-Espinal, 115 F.3d at 1057.                          _____________                    We add,  moreover, that  disparity between  federal and          state sentences in career offender cases is hardly serendipitous.          Congress  crafted  the ACCA  on  the central  premise  that armed          career criminals were being treated  too gently by state courts            coddled,  some might  say    and that  these defendants  ought to          receive much stiffer sentences.  See United States v. Jackson, 30                                           ___ _____________    _______          F.3d 199, 204 (1st Cir. 1994); see also 18 U.S.C.    924(e); H.R.                                         ___ ____          Rep. No.  98-1073, at  5 (1984),  reprinted in  1984 U.S.C.C.A.N.                                            _________ __          3661,   3665;  USSG   4B1.4,  comment.  (backg'd.).    For  these          defendants,  significant  disparity   between  sentences  at  the          federal  and state levels is the rule, not the exception.  Hence,          if Snyder is entitled to a downward departure on this basis, then          virtually  every defendant  subject  to  the  ACCA  is  similarly          entitled.  See Dockery, 965 F.2d at 1118.                     ___ _______                                        ____________________               6We  think it  unremarkable  that  the  Commission  has  not          expressly  forbidden federal/state  disparity departures.   Given          that the guidelines  were never intended to foster parity between          federal  and  state  defendants,  Commission  commentary  on  the          subject would be supererogatory.                                          12                    We are  equally unimpressed  with the district  court's          attempt  to hang  its finding  of atypicality  on an  aversion to          federal  prosecutors'  discretionary power  to  target defendants          under federal law.   See Snyder, 954  F. Supp. at 22.   Different                               ___ ______          branches  of government have  different responsibilities, and the          power  to determine  when to  prosecute and  when to  refrain is,          within  broad  limits,  a prerogative  of  the  Executive Branch.          Accordingly, it is a "bedrock principle of our system of criminal          justice"  that  a  federal  judge  may  not  interfere  with  the          government's  prosecutorial  decisions  solely to  vindicate  his          subjective view  of the wisdom  of a given  enforcement strategy.          United States v.  Stokes, 124 F.3d  39, 46 (1st  Cir. 1997).   It          _____________     ______          follows  inexorably that  the  government's lawful  selection  of          Snyder for federal prosecution has no relevance to the sentencing          inquiry.7                    For   these  reasons,   we   hold  that   federal/state          sentencing  disparity  is  not  a  feature  that  can  justify  a          departure.    Such  departures  would contradict  hopelessly  the          guidelines' structure and theory as well as impinge impermissibly          upon the  Executive Branch's discretion  to prosecute  defendants          under federal law.  See Dockery, 965 F.2d 1118.                              ___ _______                    We  add a  coda.    The  continuing  federalization  of          criminal  law increases  the frequency  with which  federal/state                                        ____________________               7We  find no record evidence of an unconstitutional exercise          of prosecutorial  authority in  this case.    We  note, moreover,          that Judge Harrington himself ruled in an unpublished order dated          December 27,  1997, that  Snyder had failed  to make out  a prima          facie case of selective prosecution.                                          13          sentencing  disparities occur,  see generally  Steven  D. Clymer,                                          ___ _________          Unequal Justice:  The Federalization  of Criminal Law, 70 S. Cal.          _____________________________________________________          L.  Rev. 643  (1997), and  we are  not entirely  unsympathetic to          Judge  Harrington's concerns about  this trend.   Still, judicial          dissatisfaction with a  particular aspect of the  guidelines, "no          matter  how  steeped in  real-world wisdom,  cannot be  enough to          trigger departures."   Aguilar-Pena,  887 F.2d at  353; see  also                                 ____________                     ___  ____          United  States v. Muniz,  49 F.3d 36, 43  (1st Cir. 1995); United          ______________    _____                                    ______          States v. Norflett, 922 F.2d 50, 54  (1st Cir. 1990).  As long as          ______    ________          federal  and state  sovereigns share  jurisdiction over  criminal          matters, prosecutors will  be able to expose  selected defendants          to  elevated  sentences.   One  can envision  models  designed to          eliminate or minimize  this circumstance, see generally  Sara Sun                                                    ___ _________          Beale, Too Many  and Yet Too Few:   New Principles to  Define the                 __________________________________________________________          Proper Limits for Federal Criminal Jurisdiction, 46 Hastings L.J.          _______________________________________________          979 (1995), but  these models reflect structure and  theory quite          different   from  that   embodied  in   the  federal   sentencing          guidelines.  Thus, the  case for them must  be made in  Congress,          not in the courts.          IV.  CONCLUSION          IV.  CONCLUSION                    In  sum, federal/state  sentencing disparity is  not "a          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).   Hence, we          vacate Snyder's sentence and remand for resentencing.                                          14                    We  close by  addressing  one further  point.   In  our          companion opinion,  see supra  note 3, we  approved for  the time                              ___ _____          being   the  district  court's  adherence  to  United  States  v.                                                         ______________          Estrella, 104  F.3d  3 (1st  Cir.  1997), and  rejected  Snyder's          ________          contention  that  18  U.S.C.     921(a)(20)  prevents  his  prior          Massachusetts  convictions from bringing  him within the  fold of          the ACCA.   We  noted, however, that  the Supreme  Court recently          granted  certiorari to review this court's unpublished opinion in          Caron  v. United  States, Nos.  96-2338,  2339 (1st  Cir. May  9,          _____     ______________          1997), cert. granted,  66 U.S.L.W. 3444 (U.S. Jan.  9, 1998) (No.                 _____ _______          97-6270), and  prophesied that the  Court's review of  Caron will                                                                 _____          encompass the relevant aspects of Estrella.  Consequently, if the                                            ________          defendant  consents, the  district  court  may  choose  to  delay          resentencing  pending the  resolution of  Caron.   Elsewise,  the                                                    _____          district  court  should  impose   sentence  consistent  herewith,          applying  Estrella,  but reserve  to  Snyder  the  right to  seek                    ________          reconsideration should  the  Caron  Court's  decision  materially                                       _____          affect the sentence imposed.          Vacated and remanded.          Vacated and remanded.          ____________________                                          15
