
USCA1 Opinion

	




          September 3, 1996                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-1763                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  DANIEL D. TAVARES,                                      Appellant.                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET            The opinion of this Court  issued on August 21, 1996, is corrected        as follows:            On page 15, line 23:  replace "inch deep" with "inch long"                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-1763                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  DANIEL D. TAVARES,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                ____________________            Kevin S. Nixon for appellant.            ______________            Daniel D. Tavares, on brief pro se.            _________________           ___ __            Michael J.  Pelgro, Assistant  United States  Attorney, with  whom            __________________        Donald  K. Stern, United States Attorney,  was on brief for the United        ________________        States.                                 ____________________                                                                              August 21, 1996                                 ____________________                      LYNCH, Circuit Judge.   An early-morning assault in                      LYNCH, Circuit Judge.                             _____________            Mashpee,  Massachusetts, on  August 29,  1991, resulted  in a            chase  through  nearby woods  and  the  arrest  of Daniel  D.            Tavares.  On May 15, 1992, Tavares was convicted of violating            18  U.S.C.    922(g), the  felon in  possession of  a firearm            statute.  Tavares appealed, and  this court, sitting en banc,                                                                 __ ____            reversed  his  conviction on  the  ground  that the  district            court's decision to  allow the government to prove the "prior            felon" element of Section 922(g) rather than accept a defense            stipulation created  unfair prejudice.  See  United States v.                                                    ___  _____________            Tavares, 21  F.3d 1 (1st Cir.  1994) (en banc).   There was a            _______                               __ ____            second  trial and, on March 30, 1995, Tavares was again found            guilty.  He appeals, asserting: (i) a variety of trial errors            in  a pro  se  submission;  and  (ii) two  sentencing  errors                  ___  __            through  a  counsel  assisted  submission.    We  affirm  the            district court  on the claimed  trial errors, but  vacate and            remand on the sentencing issues.                                          I.                                          __                      On  August  29, 1991,  Tavares  and his  companion,            Cyril  Pocknett, Jr.,  were in  a confrontation  with Sheldon            Blake and Rodney Hunt over accusations of the  theft of a car            stereo.  Threats were exchanged,  but no violence ensued, and            Tavares and Pocknett left the area.  Blake and Hunt then went            to  Blake's  apartment.     Blake  lived  in  a  second-floor            apartment with his girlfriend,  Nicole Cain, and their infant            daughter.   About  an  hour and  a  half later,  Tavares  and                                         -3-                                          3            Pocknett returned and buzzed Blake's front door.  Hunt opened            the door and Tavares greeted  him with a shotgun to  the head            and the words, "What's up  now, motherfucker?"  Standing next            to Tavares was Pocknett, aiming a .22 caliber rifle at Hunt.                      Acting  on instinct,  Hunt grabbed  the  barrels of            both  rifles, pushed them down,  and fled up  the stairs into            Blake's apartment.  Tavares then fired his shotgun repeatedly            into Blake's nearby parked car.  Meanwhile, Hunt noticed that            his hand was bleeding.  Apparently, in grabbing the barrel of            Tavares' shotgun, he had  ripped the palm of his  hand on the            gun's sight.                      Cain,  on  hearing  the  gunshots,  rushed  to  her            daughter's  bedroom to  protect her from  danger.   After the            shots subsided, she looked out the window and saw Tavares and            Pocknett   running   toward  the   nearby  woods.     Shortly            thereafter, the police arrived.  They searched the woods, and            after a chase, captured Tavares.  They also found the shotgun            and .22 caliber rifle, hidden under pine needles.                        Back at the apartment  building, Hunt, whose  right            hand was bleeding profusely,  wrapped it in a rag  which soon            became bloodsoaked.   On entering the  building, Officer Alan            Roguzac  observed pools of blood  in both the  hallway and on            the carpeting leading  up to Blake's apartment.   Soon after,            on  seeing Hunt's  wound, Roguzac  radioed for  an ambulance.                                         -4-                                          4            Hunt was taken to the Falmouth Hospital emergency room, where            his hand received eight stitches.                      Cain,  Blake  and  Hunt  were  interviewed  by  the            police. Specifically,  Cain spoke to Sergeant  David Mace and            Detective Doris Dottridge.            Trial            _____                      Cain  did not testify at  Tavares' first trial.  At            his second trial, however, she testified that on the night of            the incident she had told a male police officer and Dottridge            that  she had seen Tavares  with a gun.   Dottridge could not            recollect any  such statement  by Cain,   but Mace  testified            that he was the male police officer to whom Cain had made her            statement.  Tavares attacked Mace's testimony by pointing out            that Mace's police report  did not specifically report Cain's            statement. Instead,  Mace's report said only  that "they" had            seen  Tavares with a gun.   Tavares argued  that "they" meant            only  Hunt  and  Blake,  whereas Mace  asserted  that  "they"            included Cain as well.                      At the conclusion of  the six-day second trial, the            jury  requested the  transcripts  of the  testimony of  Cain,            Hunt,   Blake,  and Earl  Cash, another  witness.   The court            explained to the  jury that, thanks  to the court  reporter's            personal investment  in certain equipment, the  court had the            unusual  ability to  provide them  with transcripts  within a            short period of time.  The court noted, however, that despite                                         -5-                                          5            the reporter's speed, skill and equipment, since the reporter            was needed on a different case the next morning, he might not            be able to  satisfy all of the jury's requests,  and that the            jury was  to proceed in its deliberations  nevertheless.  The            next morning, the jury was  provided with the transcripts for            Cain, Hunt, and Cash, but not Blake.  The court told the jury            that, if  possible,  it  would get  them  the  transcript  of            Blake's testimony, but  reiterated that  they should  proceed            regardless. Within  a little over an hour, and without having            received  the  transcript  of  Blake's  testimony,  the  jury            returned a verdict of guilty.            Sentencing            __________                      Tavares was sentenced to ten years in prison.   The            guideline applicable to his offense of conviction was Section            2K2.1 (unlawful  possession of a  firearm).   See U.S.S.G.                                                             ___            2K2.1  (Nov. 1990).1  The  court then  applied Section  2A2.2            (aggravated assault)  by way of a  cross-reference in Section            2K2.1.2    As  a  result  of  applying  the  cross-reference,            Tavares' offense  level jumped  from twelve to  twenty-three.            Level twenty-three  represented a  starting offense  level of            fifteen  for aggravated  assault  plus an  increase of  eight            levels for specific offense characteristics  -- a three-level                                            ____________________            1.  The court applied the version of the Guidelines in effect            at the time of Tavares' offense.  Neither party contends that            a different version should apply.            2.  See U.S.S.G.    2K2.1(c)(2) and 2X1.1(c)(1).                 ___                                         -6-                                          6            increase  for the  victim's  bodily injury  and a  five-level            increase  for the discharge  of a firearm.   The Pre-Sentence            Investigation  Report  recommended  that the  court  sentence            Tavares under the aggravated assault guideline because he had            pointed  a  loaded  shotgun  at his  victim's  head,  thereby            evincing  an  "intent to  do bodily  harm."   See  U.S.S.G.                                                            ___            2A2.2, comment. (n.1(a)).   The Guidelines define "aggravated            assault"  as "a  felonious assault  that involved"  either "a            dangerous  weapon with  intent to  do bodily harm  (i.e., not                                                                ____            merely to frighten)" or "serious bodily injury" or "intent to            commit another  felony."   U.S.S.G.   2A2.2,  comment. (n.1).                      At  sentencing,  however,  Tavares  protested  that            there was  insufficient record  support for either  a finding            that he had had the  requisite intent to do bodily harm  or a            finding that serious bodily injury had resulted.  Instead, he            said,  the  evidence showed  that  he  had  merely  meant  to            frighten  his victim.    Additionally, Tavares  argued  that,            under the  Guidelines, a serious  bodily injury was  one that            required hospitalization or surgery.   The government  argued            that  the injury Tavares' victim had suffered, i.e., a cut to                                                           ____            the hand requiring  a trip  to the emergency  room and  eight            stitches, was  in fact  a  serious bodily  injury within  the            Guidelines'  definition.    See  id. and  U.S.S.G.     1B1.1,                                        ___  ___            comment. (n.1(j)).   The court  accepted this argument.   The                                         -7-                                          7            resulting   Guidelines   sentencing  range,   given  Tavares'            criminal history category ("CHC") of IV, was 70-87 months.                      The sentencing  court then departed  upward by  two            CHC  levels  and  one  offense  level  to  achieve  a   final            sentencing range  of 110-125 months.   See U.S.S.G.    4A1.3,                                                   ___            p.s.   (departures  beyond   CHC  VI   may  occasionally   be            appropriate  in  cases  of an  "egregious,  serious  criminal            record").  The court's stated basis for  the upward departure            was that Tavares had,  in fact, committed three state  crimes            (that had resulted in  "guilty filed" dispositions as opposed            to  outright convictions3) that  were not counted  in his CHC            score and  that a CHC  of IV did  not adequately  reflect the            true seriousness of Tavares' chronic criminality.                      Tavares appeals, asserting errors in both the trial            and sentencing.                                         II.                                         ___                                        Trial                                        _____                                            ____________________            3.  "Guilty  filed"  dispositions   in  the  Commonwealth  of            Massachusetts involve an admission  of sufficient facts for a            possible finding of guilt,  but not an explicit  admission of            guilt.   The primary focus  of the  sentencing hearing  after            Tavares'  second  federal  trial  was whether  three  of  his            "guilty  filed" dispositions counted as predicate convictions            under  the Armed Career Criminal Act ("ACCA").  See 18 U.S.C.                                                            ___              924(e).  The sentencing court ruled that the "guilty filed"            dispositions could  not be  counted as convictions  under the            ACCA.    The  court explained,  however,  that  as  there was            sufficient evidence  that Tavares  had in fact  committed the            state crimes,  and because,  had they been  convictions, they            would have resulted in a minimum federal sentence  of fifteen            years,  it was going to depart upward and sentence Tavares to            ten years.                                                 -8-                                          8                      Tavares'  pro  se brief  asserts that  the district                                ___  __            court committed  reversible error in: (i)  failing to provide            the jury with a transcript of a particular witness' testimony            that it had  requested and instructing  the jurors that  they            should proceed  to deliberate  without that transcript;  (ii)            permitting  the   jury  to  "view"  the   allegedly  perjured            testimony of a witness; (iii) failing to ask the jury whether            its request for transcripts pertained to the instant trial or            prior proceedings.   Because contemporaneous  objections were            not made  with respect to  any of the  claims, review is  for            plain error.   See,  e.g., United States  v. Cruz-Kuilan,  75                           ___   ____  _____________     ___________            F.3d 59,  62 (1st Cir.  1996).  We discern  no miscarriage of            justice  and Tavares'  claims fail this  review.   See, e.g.,                                                               ___  ____            United States v. Sullivan, 85 F.3d 743, 751 (1st Cir. 1996).            _____________    ________            A. Failure to Provide Transcript             ________________________________                      After  deliberations commenced,  the jury  asked to            review the testimony of four witnesses: Cain,  Hunt, Cash and            Blake.  The  next morning, the court was  able to provide the            jury with transcripts  for Cain, Hunt  and Cash, but  Blake's            was not yet ready.  The court reporter  was needed on another            case  and the court told  the jurors that,  if possible, they            would be  provided with the transcript, but  that they should            proceed with their deliberations regardless.   Tavares argues            that this was reversible error.                                         -9-                                          9                      Decisions   regarding   the   provision  of   trial            transcripts  to the  jury are  within  the discretion  of the            trial judge.  See United States v. Akitoye, 923 F.2d 221, 226                          ___ _____________    _______            (1st Cir.  1991) (decision as to  whether requested testimony            should be reread to jury  rests in trial court's discretion).            In making  its  decision,  the  trial judge  is  to  consider            factors such as the ease or difficulty of compliance with the            jury's request  and what is likely to be gained or lost.  Id.                                                                      ___            The  court  here provided  the jury  with  three of  the four            transcripts requested.   The one transcript  not provided was            that  of Blake, who had testified most recently, and that was            because  the court reporter was needed for another case.  Cf.                                                                      ___            id. (where testimony is fresh in jury's mind there is less of            ___            a need for  rereading).  We discern no plain  error either in            the  non-provision of  the transcript  or in  the instruction            that the jury should continue deliberations.            B. Perjured Testimony            _____________________                      Tavares argues that  the court erred  in permitting            the  jury  to  "view"  the  perjured  testimony  of  Cain,  a            government  witness.4    Tavares  further  asserts  that  the            government knew or should have known that not only was Cain's            testimony  perjured,  but that  the  supporting  testimony of            Sergeant Mace  was perjured as  well.  Tavares,  however, has                                            ____________________            4.  We  assume  that  Tavares  is referring  to  the  court's            provision of the jury with the transcript of Cain's testimony            during deliberations.                                         -10-                                          10            not  shown that either witness committed perjury.  And so the            argument fails for want of a foundational piece.                      Cain testified  at the  instant trial that:  (a) on            the night of  the incident, she  saw Tavares with a  gun; and            (b) that she had told this to the police on the  scene.  Cain            did not, however, testify at Tavares' first trial.                      Tavares  says that  her  testimony  at the  instant            trial  must have been perjured because there was no record of            her having  related this  information to  the  police on  the            night in  question.   Tavares theorizes that  the government,            having been reversed once,  used perjured testimony to ensure            its victory  in the second  trial.  As support,  he points to            the  testimony of  Dottridge, one of  the officers  whom Cain            allegedly  told of having seen Tavares with a gun.  Dottridge            testified  that she could not recall  Cain having stated that            she  saw Tavares with a  gun.  There  was, however, testimony            from Dottridge's  colleague, Mace,  that he had  heard Cain's            statement.   But Tavares says that Mace's testimony must have            been perjury as  well because  Mace's police  report did  not            state specifically  that Cain  had seen Tavares  with a  gun.            Instead, Mace's  report stated  that "they" had  seen Tavares            with  a  gun,  without  specifying   which  witnesses  "they"            referred to.                      "[A]  conviction obtained  by  the knowing  use  of            perjured testimony  is fundamentally unfair, and  must be set                                         -11-                                          11            aside if there  is any reasonable  likelihood that the  false            testimony  could have  affected  the judgment  of the  jury."            United States  v. Agurs, 427  U.S. 97, 103  (1976) (footnotes            _____________     _____            omitted).  Under federal law, perjury occurs when a  "witness            testifying  under  oath   or  affirmation . . . gives   false            testimony  concerning  a  material matter  with  the  willful            intent to provide false testimony, rather than as a result of            confusion,  mistake, or  faulty  memory."   United States  v.                                                        _____________            Dunnigan, 507 U.S. 87, 94 (1993) (referring to the definition            ________            of  perjury under 18 U.S.C.    1621).   Tavares, however, has            pointed  to no  more  than an  inconsistency (between  Cain's            testimony and that of Dottridge) and an unclear police report            (that of Mace).   Inconsistent testimony  by itself does  not            amount  to perjury, nor does an unclear police report make it            so.  See  United States v. Gary, 74 F.3d  304, 314 (1st Cir.)                 ___  _____________    ____            ("it  is axiomatic that inconsistent  testimony is not per se                                                                   ___ __            perjurious"), cert. denied, 116  S.Ct. 2567 (1996).  Further,                          _____ ______            the fact that Cain  did not testify at Tavares'  first trial,            but did at the  second, avails Tavares naught.   See Anderson                                                             ___ ________            v.   United  States,  403  F.2d  451,  454  (7th  Cir.  1968)                 ______________            (inconsistency in  witness' testimony between trials  is not,            alone, enough to  show perjury), cert.  denied, 394 U.S.  903                                             _____  ______            (1969); cf.  United States v.  Lebon, 4 F.3d  1, 2  (1st Cir.                    ___  _____________     _____            1993) (defendant did not show perjury merely by  showing that            witness changed her  story between post-arrest  interview and                                         -12-                                          12            trial).  Tavares made no request that the trial  court make a            finding  of perjury.  We  decline his invitation  that we now            find willful  intent to provide  false testimony based  on no            more than an  inconsistency in testimony  and a dispute  over            the clarity of a police report.            C.  Transcript From Prior Trial               _______________________________                      Tavares'  final trial-related  claim  is  that  the            court misunderstood the  jury's request  for transcripts  and            sent  in  the  wrong transcripts.    The  court  sent in  the            transcripts of the instant  trial, but Tavares says  that the                               ______________            jury  was, in fact,  requesting the transcripts  of his prior                                                                    _____            trial for the same offense.  The claim is unavailing.            _____                      To  the extent  there was  ambiguity in  the jury's            request  for   transcripts,  Tavares   had  the   ability  to            contemporaneously request  clarification.  He did  not do so.            Nor has Tavares  pointed to  any sign that  the jury  thought            that  they had been given  the wrong transcripts.   We reject            the claim.                                         III.                                         ____                                     Sentencing                                      __________                      In his counsel-assisted submission,  Tavares claims            that the  sentencing court erred in: (i)  determining that he            had committed an aggravated assault and that his sentence was            thus governed by Section 2A2.2; and (ii) in  determining that            he  had an  egregious,  serious criminal  record that,  under                                         -13-                                          13            Section  4A1.3,  warranted  an  upward   departure  from  the            Guidelines' recommended  range of 70-87 months  to a sentence            of 120 months.5  A. Aggravated Assault                             _____________________                      Tavares argues that  the sentencing court  erred in            determining that his offense was an aggravated assault within            the  meaning of Section 2A2.2.   However, because  of a fact-            based internal  inconsistency in  the court's  application of            Section 2A2.2, we are unable to decide the merits of Tavares'            challenge and remand for clarification and resentencing.                      The aggravated assault  guideline is structured  so            that a  victim's serious  bodily injury both  functions as  a            trigger for the application  of the guideline as a  whole and                                                                      ___            provides  a   basis,  in  applying  the   guideline,  for  an            additional upward  offense level adjustment.   In effect, the            guideline provides two separate  opportunities for a court to            give  effect  to a  finding of  serious  bodily injury.   See                                                                      ___            United States v. Newman, 982 F.2d 665, 673-75 (1st Cir. 1992)            _____________    ______            (double   counting   of   victim's  serious   bodily   injury            permissible under Section 2A2.2),  cert. denied, 510 U.S. 812                                               _____ ______            (1993).   Here,  the sentencing  court appeared  to determine            that  the  victim  had  suffered serious  bodily  injury  for            purposes  of  deciding the  applicability,  vel  non, of  the                                                        ___  ___            aggravated  assault guideline, but  also determined  that the                                            ____________________            5.  Tavares' pro se brief  raises the same sentencing issues,                         ___ __            albeit  with  less clarity.    We,  therefore,  focus on  his            counsel-assisted submission.                                            -14-                                          14            victim had suffered something less than serious bodily injury                                          ____            for purposes of applying the guideline's  internal provisions            for offense level adjustment.                      The  Guidelines  define  aggravated  assault  as  a            felonious assault involving:                      (a) a dangerous weapon  with intent to do                      bodily   harm   (i.e.,   not  merely   to                                       ____                      frighten), or                      (b) serious bodily injury, or                      (c) an intent to commit another felony.            U.S.S.G.    2A2.2, comment. (n.1).  Serious bodily injury, in            turn, is defined as:                      [(i)]  injury  involving extreme  pain or                      the impairment of a function  of a bodily                      member, organ or mental faculty; or                      [(ii)]  requiring   medical  intervention                      such  as   surgery,  hospitalization,  or                      physical rehabilitation.6            U.S.S.G.    1B1.1,  comment.  (n.1(j)).   Tavares caused  his            victim to suffer  a laceration  to the hand  that required  a            trip to the  emergency room  and eight stitches.   The  court            determined that that injury  was sufficiently analogous to an            injury  requiring  surgery,   hospitalization,  or   physical            rehabilitation  to  fall  within  the  definition of  serious            bodily injury; thus, Section 2A2.2 applied.                                            ____________________            6.  In  contrast,   "bodily  injury"   is  defined  as   "any            significant  injury;  e.g., an  injury  that  is painful  and                                  ____            obvious,  or  is  of  a  type  for  which  medical  attention            ordinarily  would be  sought."   U.S.S.G.    1B1.1,  comment.            (n.1(b)).                                          -15-                                          15                      The court did not find on the record before it that            the brandishing  of  the shotgun  itself  was done  with  the            "intent  to  do bodily  harm."   Absent  such a  finding, the            aggravated assault  determination could  not  be premised  on            note 1, part  (a), of the commentary to Section 2A2.2.  While            such  an intent  may in  fact have  been present,  the record            before the  district court  did not  require such a  finding.            We, therefore, cannot rest an affirmance on such a ground.                      The  next  step  was  to  calculate adjustments  to            Tavares' offense level under the specific offense  adjustment            provisions  of  the   aggravated  assault  guideline.     The            aggravated assault guideline provides for different increases            in  the offense  level, depending on  the seriousness  of the            victim's injury:                      If  the  victim sustained  bodily injury,                      increase the offense  level according  to                      the seriousness of the injury:                      Degree of Bodily Injury    Increase in Level                      _______________________    _________________                      (A) Bodily Injury            add 2                      (B) Serious Bodily Injury    add 4                          _____________________                      (C) Permanent or                          Life-Threatening                           Bodily Injury            add 6                      (D)If  the   degree  of  injury  is   between  that                         ________________________________________________            specified            _________                      in subdivision (A) and (B),  add 3 levels; or                      _________________________________________                      (E)If   the  degree  of   injury  is  between  that            specified                      in subdivisions (B) and (C), add 5 levels.                                         -16-                                          16            U.S.S.G.     2A2.2(b)(3) (emphasis  added).    The sentencing            court increased  Tavares' offense  level by three.   A  three                                                        _____            level  increase applies  when the  magnitude of  the victim's            injury is  between  bodily injury and  serious bodily injury.                       _______            See  U.S.S.G.   2A2.2(b)(3)(D).   But  this  determination --            ___            that  the victim's  injury  was less  than  a serious  bodily                                            ____            injury  -- is in direct  conflict with the  court's basis for            applying the aggravated assault guideline in the first place,            i.e., that  the victim had suffered a serious bodily injury.7            ____                      Were  the inconsistency in  the court's application            of  Section 2A2.2 a purely legal  matter, we might be able to            resolve it ourselves, without the need to remand.  But we  do            not think that the question can  be reduced to a purely legal            one.  Depending on context, an inch long laceration requiring            eight stitches  might or might not  constitute serious bodily            injury.  For  example, if  there was  a great  deal of  blood            loss, or the victim  was a hemophiliac, such an  injury might            well  be thought serious.  More generally, we cannot say that            the  victim's injury in  this case  is of  a kind  that would                                                         ____            categorically call  for its characterization as  "serious" or            _____________            not.   Lacerations can be life-threatening  or trivial; where                                            ____________________            7.  We  note that  a three  level increase  in offense  level            would  not  have  produced such  a  conflict  if the  court's            decision to  apply  Section  2A2.2  had been  premised  on  a            determination that there  was an "intent to do  bodily harm."            See U.S.S.G.   2A2.2, comment. (n.1(a)).             ___                                         -17-                                          17            on  the sliding  scale  of severity  a particular  laceration            falls  is not  a determination that  can be made  solely as a            matter of law.                      As  explained in  Newman, we review  the sentencing                                        ______            court's  "fact   dominated   evaluative  judgment"   of   the            seriousness of the victim's injury for clear error.  982 F.2d            at 671.   This  is  not a  case in  which  the record  either            clearly  precludes or  mandates a  finding of  serious bodily            injury.   In the context of clear error review, it is not for            this court to choose  between two mutually inconsistent fact-            based determinations that each has some plausibility in light            of  the record.   Since,  on this record, we cannot reconcile            or  resolve  the  sentencing  court's dual  findings  of  the            severity of the  victim's injury, we are  left no alternative            but  to vacate the sentence and remand for resentencing.  The            district court is free to make new findings or reconsider the            basis for  the  adjustment entirely.   Cf.  United States  v.                                                   ___  _____________            Wester, __ F.3d __, __, slip op. at 21, No. 95-1143 (1st Cir.            ______            July 22, 1996).             B. Egregious, Serious Criminal Record            _____________________________________                      Tavares  next  argues  that   the  court  erred  in            departing upward from the recommended  70-87 month sentencing            range (that  applied as a  result of applying  the aggravated            assault  guideline)  to  a  sentence  of  120  months.    The            sentencing court  made the  departure  because it  determined                                         -18-                                          18            that  the CHC  of  IV  that  had  produced  the  70-87  month            recommended   range  did  not   adequately  reflect  Tavares'            extensive criminal  record.  It  therefore increased Tavares'            CHC level by two,  to CHC VI (the Guidelines'  highest level,            resulting in a  sentencing range of 92-115  months), and then            within  CHC VI, departed higher  still, to a  sentence of 120            months.    The  Guidelines,   in  the  proper  circumstances,            encourage  departures  in  CHC  levels, but,  for  departures            beyond CHC VI, require that the defendant have an "egregious,            serious criminal record."   U.S.S.G.   4A1.3, p.s.;  see also                                                                 ___ ____            United  States v.  Doe, 18  F.3d 41,  48-49 (1st  Cir. 1994);            ______________     ___            United States  v. Mendez-Colon,  15 F.3d  188, 190  (1st Cir.            _____________     ____________            1994).    Tavares argues  that  his criminal  record  was not            egregious and serious and that  the sentencing court erred in            determining so.                      The  sentencing court  explained that  had Tavares'            three "guilty  filed" dispositions from the  state court been            convictions, a  minimum sentence of fifteen  years would have            resulted under  the ACCA.   See  18 U.S.C.    924(e).   Since                                        ___            there  were sufficient  facts  for the  court  to find  by  a            preponderance  of the  evidence that  the three  state crimes            were  in  fact  committed,  it  found  a  ten  year  sentence            appropriate.   Based on  Tavares' extensive criminal history,            we  see  no abuse  of discretion  in  the court's  upward CHC            departure.  See United States v. Koon, 116 S. Ct. 2035, 2047-                        ___ _____________    ____                                         -19-                                          19            48  (1996)  (abuse of  discretion  standard  appropriate when            examining  district  court's  decision  to  depart  from  the            Guidelines).  Similarly, we see no abuse of discretion in the            extent  of  the  departure.   See  id.    However, since  the                                          ___  ___            sentencing   court's  offense   level  determination   is  in            question, we leave it to the sentencing court to redetermine,            on remand, the extent of CHC departure warranted.            77                           IV.                                         ___                      The  judgment  of  conviction  is  affirmed.    The                                                         ________            sentence, however, is vacated,  and the case is  remanded for                                  _______                    ________            resentencing.                                                                                                                                      -20-                                          20
