
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1826                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                                   MICHAEL JACKSON,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                              _________________________                                        Before                            Selya and Cyr, Circuit Judges,                                           ______________                         and Pettine,* Senior District Judge.                                       _____________________                              _________________________               Margaret E.  Curran, Assistant United States  Attorney, with               ___________________          whom  Edwin  J.  Gale,  United  States  Attorney,  and  Gerard B.                _______________                                   _________          Sullivan, Assistant  United States  Attorney, were on  brief, for          ________          the United States.                              _________________________                                    July 19, 1994                              _________________________          __________          *Of the District of Rhode Island, sitting by designation.                    SELYA,  Circuit Judge.    We chronicle  today one  more                    SELYA,  Circuit Judge.                            _____________          vignette  that forms  a part  of "the  seemingly endless  line of          criminal appeals  marching stolidly to  the beat  of the  federal          sentencing guidelines."  United States v. Ocasio-Rivera, 991 F.2d                                   _____________    _____________          1,  2  (1st  Cir.  1993).     Concluding,  as  we  do,  that  the          circumstances relied  upon by the court below are insufficient to          warrant a downward departure  from the guideline sentencing range          (GSR), we  vacate the  sentence previously imposed  on defendant-          appellee Michael Jackson and remand for sentencing.          I.  BACKGROUND          I.  BACKGROUND                    On  April  19,  1993,  a  jury  convicted  appellee  of          possessing cocaine with intent to distribute the drug,  21 U.S.C.            841(a)(1) (1988); being  a felon in possession of a firearm, 21          U.S.C.     922(g)  (1988);  and using  a  firearm during  and  in          relation  to a drug trafficking crime, 18 U.S.C.   924(c) (1992).          Since,  these  convictions formed  the tail  end of  an extensive          criminal record  that included convictions for  several crimes of          violence, appellant  qualified  for enhancement  of his  sentence          under 18 U.S.C.   924(e) (1988).                    At  the disposition  hearing, the district  court found          appellee to be  an armed  career criminal within  the meaning  of          U.S.S.G.  4B1.4(a)  (Nov. 1992) (instructing that  "[a] defendant          who is subject to an enhanced sentence under the provisions of 18          U.S.C.   924(e)" is  to be so regarded).  Factoring in appellee's          status  as  an armed  career criminal  and making  other standard          adjustments,  the court calculated  the GSR to  be 262-327 months                                          2          (offense level  34, criminal history category VI).   In addition,          the court determined  that appellee qualified for  a mandatory 5-          year sentence anent the use  of a firearm during and in  relation          to a drug trafficking crime   a sentence which, by law, had to be          tacked onto whatever sentence the  court imposed with respect  to          the Jackson's conviction  under 21  U.S.C.   841(a)(1).   See  18                                                                    ___          U.S.C.   924(c).   In  short, the  guidelines, departures  aside,          forecast a minimum prison term of 27 years.                    But the  district court  did not  stay within  the GSR.          Instead,  it  spontaneously departed,  sentencing appellee  to an          aggregate 20-year prison  term (a total of  15 years on the  drug          trafficking and felon-in-possession  counts, as enhanced pursuant          to  18  U.S.C.    924(e),  plus  a  5-year  consecutive  sentence          pursuant to 18 U.S.C.   924(c)).  The court premised the downward          departure on the rationale  that an incarcerative sentence within          the parameters  set by  the GSR  would be  tantamount to  "a life          sentence" for, the court said, in view of Jackson's  age (40), it          would be  "unlikely" that he would "ever see any light outside of          prison."  The court added:                    I just happen  to think that this  is not the                    kind of thing  the sentencing commission  may                    have had in mind. . .  .  It seems to me that                    this is one of those circumstances where what                    [the  defendant] did  was terribly  wrong but                    not  so   wrong  that  a   life  sentence  is                    appropriate.  . . .  I am going to depart out                    of a concern for the system of justice.                                          3                    The  government  now  appeals.1   It  argues  that  the          sentencing  court's stated  reasons are  legally insufficient  to          warrant a downward departure.  We agree.          II.  DEPARTURES FROM THE GUIDELINES          II.  DEPARTURES FROM THE GUIDELINES                    The basic  theory behind the  sentencing guidelines  is          that,  in the ordinary case, the judge will apply the guidelines,          make such interim  adjustments as  the facts  suggest, compute  a          sentencing range, and  then impose a sentence within  that range.          See  18 U.S.C.    3553(a)(b)  (1988); see  also United  States v.          ___                                   ___  ____ ______________          Rivera, 994 F.2d 942, 946 (1st Cir. 1993); United States v. Diaz-          ______                                     _____________    _____          Villafane,  874 F.2d 43, 47-48 (1st Cir.), cert. denied, 493 U.S.          _________                                  _____ ______          862 (1989).                    Departures are the  exception, not the rule.  See Diaz-                                                                  ___ _____          Villafane, 874 F.2d at 52.  Thus, it is only in the extraordinary          _________          case    the case that falls outside the heartland for the offense          of conviction   that the district court may abandon the guideline          sentencing  range  and  impose  a  sentence  different  from  the          sentence  indicated by mechanical  application of the guidelines.          See Rivera, 994 F.2d at 947-48.   One relatively common basis for          ___ ______          departure  arises when  the  court "finds  that  there exists  an          aggravating or mitigating circumstance of a kind, or to a degree,          not  adequately  taken  into   consideration  by  the  Sentencing          Commission in formulating the guidelines that should  result in a                                        ____________________               1Despite due notice, appellee has neither  filed a brief nor          applied  for the appointment of  counsel on appeal.   Hence, only          the  government presented  oral argument.   See  Fed. R.  App. P.                                                      ___          31(c); 1st Cir. R. 45.                                          4          sentence different from  that described."   18 U.S.C.    3553(b);          see also  U.S.S.G.  5K2.0  (implementing statute);  see generally          ___ ____                                            ___ _________          Rivera, 994 F.2d at 946; Diaz-Villafane, 874 F.2d at 49.2          ______                   ______________                    It  is  clear  that  the  guidelines  are  intended  to          alleviate  disparity  in sentencing  and  to  make it  reasonably          likely  that similarly situated offenders will receive comparable          punishments,  regardless of  where they  are prosecuted  or which          judge presides at  sentencing.  See S. Rep. No.  225, 98th Cong.,                                          ___          2d Sess. 38, 51, 161 (1984), reprinted in 1984 U.S.C.C.A.N. 3182,                                       _________ __          3221, 3234, 3344 (explaining need for sentencing guidelines "[in]          order to  lessen the  degree to  which different  judges impose[]          different sentences  in comparable cases");  Charles J. Ogletree,          Jr.,  The   Death  of  Discretion?  Reflecting   on  the  Federal                ___________________________________________________________          Sentencing  Guidelines,  101  Harv.  L. Rev.  1938,  1944  (1988)          ______________________          (noting that  sentencing reform came about largely in response to          "frequent  criticism of  the  broad  discretion afforded  federal          judges  in  sentencing [which]  led  to  disparate treatment  for          similarly situated  individuals"); see  also Rivera, 994  F.2d at                                             ___  ____ ______          946;  United States v. Aguilar-Pena,  887 F.2d 347, 352 (1st Cir.                _____________    ____________          1989).  Ensuring uniformity inevitably means restricting judicial          discretion, for, as we have stated, "[g]iving judges free rein to          forsake the guidelines  in cases falling within the heartland for                                        ____________________               2The  other mainstay of departure jurisprudence involves the          defendant's "substantial  assistance" to the government.   See 18                                                                     ___          U.S.C.   3553(e) (1988);  28  U.S.C.    994(n)  (1988); see  also                                                                  ___  ____          U.S.S.G.   5K1.1 (implementing  statute);  see  generally  United                                                     ___  _________  ______          States v. Mariano, 983 F.2d 1150, 1155-57 (1st Cir. 1993).   This          ______    _______          appeal  does  not require  us to  delve  into the  intricacies of          substantial assistance.                                          5          a given offense  would be tantamount  to judicial repudiation  of          the  Sentencing  Reform  Act  and the  important  policies  which          propelled  its  enactment."    Aguilar-Pena,  887  F.2d  at  352.                                         ____________          Consequently,  while the power to  depart offers judges a modicum          of  flexibility in criminal  sentencing, this  power can  only be          exercised for reasons that the guidelines themselves endorse.                    In  reviewing  the  legitimacy of  departures  from the          guidelines,  appellate  courts  are   expected  to  engage  in  a          tripartite analysis.   See Rivera,  994 F.2d at  950-52; Aguilar-                                 ___ ______                        ________          Pena, 887 F.2d at 350; Diaz-Villafane, 874 F.2d at 49.  The first          ____                   ______________          step requires an evaluation of the circumstances relied on by the          lower  court  in  determining   that  the  case  is  sufficiently          "unusual" to warrant a departure.  Aguilar-Pena, 887 F.2d at 350.                                             ____________          That  question is one  of law,  evoking plenary  appellate review          shorn  of deference to the court below.3  See Diaz-Villafane, 874                                                    ___ ______________          F.2d at 49.                    To guide judicial  consideration of departures at  this          stage, we have suggested that a sentencing court should analyze a          case along the following lines:                    (1)  What features of  the case, potentially,                    take it outside  the Guidelines'  "heartland"                    and make it a special, or unusual case?   (2)                    Has the Commission forbidden departures based                    on  those  features?   (3)  If  not, has  the                                        ____________________               3For present purposes, we need not progress past the initial          step.  In the interest of completeness, however, we note that, if          the stated  circumstances pass muster,  the next step  requires a          reviewing court  to  determine whether  those  circumstances  are          adequately documented in the record.  See Aguilar-Pena,  887 F.2d                                                ___ ____________          at  350.     Finally,  the  court  must  gauge   the  departure's          reasonableness.  See id.                           ___ ___                                          6                    Commission  encouraged  departures  based  on                    those  features?     (4)  If   not,  has  the                    Commission  discouraged  departures based  on                    those features?          Rivera, 994  F.2d  at 949.    If the  case  is not  "special"  or          ______          "unusual"    a condition which,  for simplicity's sake,  we shall          call "atypical"    then the  court may not  depart under  section          5K2.0.  If the case is atypical, that is, if it falls outside the          heartland  for the  offense  of conviction,  the court  must then          focus on  the  nature of  the atypicality  and its  place in  the          departure hierarchy.  If the case is atypical only because of the          presence of  a feature that  comprises a "forbidden"  ground, the          sentencing court may not  depart.  If the atypicality  stems from          an  "encouraged" ground,  the court  may  (and most  likely will)          depart.   If the atypicality  consists of a  ground for departure          that  is  neither "forbidden"  nor  "encouraged,"  but is  simply          "discouraged,"  then the  court must  take a  long, hard  look to          determine   whether  the  case  differs  significantly  from  the          ordinary  case in  which the  particular atypicality  is present.          See Rivera, 994 F.2d at 949.          ___ ______          III.  ANALYSIS          III.  ANALYSIS                    Here,  the primary  factors relied  on by  the district          court  are the  defendant's age  and the  length of  the sentence          dictated by the guidelines.   Neither ground justifies a downward          departure.                                       A.  Age.                                       A.  Age.                                           ___                    Age   is   among    the   various   specific   offender          characteristics that  the guidelines  treat as  "discouraged" for                                          7          purposes of  a departure.  In  other words, age is  a factor "not          ordinarily relevant" to the departure calculus.  U.S.S.G.  5H1.1,          p.s.;  accord Rivera, 994 F.2d at 948; United States v. Norflett,                 ______ ______                   _____________    ________          922 F.2d 50, 54 (1st Cir. 1990); see also United States v. Jones,                                           ___ ____ _____________    _____          18  F.3d  1145,  1149-50  (4th Cir.  1994)  (explaining  that the          Sentencing  Commission adequately  considered age  in formulating          the sentencing guidelines).  And  Jackson's age   40    is surely          not sufficiently "special" or "unusual" to ferry the case outside          the heartland for the offenses of conviction.                    Moreover, precedent teaches that  the interrelationship          between Jackson's age and the  length of the prospective sentence          does not furnish an adequate legal reason upon which to ground  a          departure.  For example,  in United States v.  Doe, 921 F.2d  340                                       _____________     ___          (1st  Cir. 1990), we  rejected virtually the  same proposition on          closely comparable  facts.  There, the district court declined to          depart downward and, instead, imposed a 30-year sentence on a 54-          year-old man.    On  appeal,  the  defendant  asserted  that  the          district  court  erred, inter  alia,  by  "fail[ing] to  consider                                  _____  ____          whether  a `life  sentence' is  appropriate punishment  for th[e]          crime."   Id. at 347.  We found  no merit to this assertion.  See                    ___                                                 ___          id.   By like  token, in Norflett,  922 F.2d at 54,  we held that          ___                      ________          there  was  nothing  sufficiently  unusual  about  a  34-year-old          defendant facing  a  sentence of  approximately  17 years  as  to          authorize a  downward departure.   Our sister  circuits regularly          have ruled to like effect.  See, e.g., United States  v. Goff, 20                                      ___  ____  _____________     ____          F.3d  918,  921 (8th  Cir. 1994)  (remarking  that the  court has                                          8          consistently denied  departures to  healthy offenders in  the age          group of a 67-year-old defendant);  United States v. Madison, 990                                              _____________    _______          F.2d  178, 183 (5th Cir.) (explaining that age has been virtually          eliminated  as a mitigating  sentencing factor), cert. dismissed,                                                           _____ _________          114 S. Ct. 339 (1993); United States v. Anders, 956 F.2d 907, 912                                 _____________    ______          (9th Cir.  1992) (rejecting age-based  ground for departure  in a          case involving a 46-year-old offender), cert.  denied, 113 S. Ct.                                                  _____  ______          1592 (1993); United  States v.  Daiagi, 892 F.2d  31, 33-34  (4th                       ______________     ______          Cir. 1989) (acknowledging that age has been largely eliminated as          a mitigating factor); cf.  United States v. White, 945  F.2d 100,                                ___  _____________    _____          101-02 (5th Cir. 1991) (holding that youthfulness per se is not a                                                            ___ __          sufficient reason for a downward departure).4                    In  sum, the  departure  that the  lower court  essayed          cannot be salvaged on the basis of either  the defendant's age or          the  interrelationship  between  the   defendant's  age  and  the          anticipated length of his sentence.                                  B.  Excessiveness.                                  B.  Excessiveness.                                      _____________                    We  now  come  to  the crux  of  the  district  court's          reasoning:   its  apparent dissatisfaction  with the  severity of          sentencing options available within the GSR.  The judge concluded          that, given  appellant's age, a 27-year  aggregate sentence would          be the functional equivalent of life imprisonment and, therefore,          too harsh  to fit the crime.  These conclusions led the judge, to                                        ____________________               4To be sure, the guidelines  permit consideration of the age          of  a  mature  defendant as  a  ground  for  departure "when  the          offender  is elderly  and  infirm .  .  . ."    U.S.S.G.    5H1.1                                ___          (emphasis in  original).  But  Jackson is not  elderly   and  the          district court received no evidence of any cognizable infirmity.                                          9          use his own words,  to "depart out of a concern for the system of          justice."     Though  we  appreciate  the   judge's  humanitarian          instincts, and do not  doubt his sincerity, we regard  the stated          basis for departure as forbidden.                    It   is   firmly   settled   that,    absent   specific          circumstances  independently  justifying  a  departure,  a  judge          cannot  sentence  outside  a properly  computed  sentencing range          merely  because he believes that the guidelines work too severe a          sanction in a  particular case.5   See Norflett, 922  F.2d at  53                                             ___ ________          ("That the  district court  thinks the GSR  too harsh in  a given          case does not  by itself warrant a  downward departure."); United                                                                     ______          States v. Studley, 907 F.2d 254, 260 (1st Cir. 1990) ("Regardless          ______    _______          of how well founded,  a belief by the  sentencing judge that  the          punishment  set by the  [Sentencing] Commission is  too severe or          that  the  guidelines  are too  inflexible  may  not  be judicial          grounds  for   departure.");  Aguilar-Pena,   887  F.2d   at  353                                        ____________          ("Judicial dissatisfaction alone, no  matter how steeped in real-          world wisdom,  cannot be enough  to trigger departures,  lest the          entire system crumble.").                    Norflett  closely  parallels  the  situation  at  hand.                    ________          There,  in a  case  involving a  career offender,  the sentencing          court departed  downward because  it thought that  sentencing the          defendant  within  the GSR  would  "constitute  a miscarriage  of                                        ____________________               5By the same token,  a judge is equally powerless  to depart          solely   because  he   believes  that   the  guidelines   provide          insufficient punishment.  See United States v. Cox, 921 F.2d 772,                                    ___ _____________    ___          774 (8th Cir. 1990).                                          10          justice."  Norflett,  922 F.2d at 52.   We reversed, holding that                     ________          perceived  excessiveness is  not a  viable basis  for a  downward          departure.   See id. at 53.   In the process,  we cautioned that,                       ___ ___          under the sentencing guidelines, judges are no longer free to act          upon  their  own views  whenever they  think  that "the  GSR [is]          incommensurate to the crime."  Id.  To the contrary, judges "must                                         ___          subrogate personal views [about what sentences  are too severe or          too  lenient] to  the  Congress' sense  of  how best  to  achieve          uniformity."  Id.                        ___                    This monition has  particular force in career  offender          and  armed   career  criminal   cases,  for  Congress   has  very          specifically directed  the Sentencing Commission  to ensure  that          the guidelines provide for severe incarcerative sentences in such          cases.  See 28 U.S.C.   994(h) (1988) (directing courts in career                  ___          offender cases to impose  sentences "at or near the  maximum term          authorized [by law]");  18 U.S.C.    924(e) (directing courts  in          armed career  criminal  cases to  impose  a minimum  sentence  of          imprisonment  for  fifteen  years  without  the   possibility  of          suspension, probation or  parole).  Such  policy choices are  for          Congress,  not  the courts,  to  make.   And  when,  as now,  the          legislative  trumpet sounds  clearly,  courts are  duty bound  to          honor the clarion  call.  See  Norflett, 922  F.2d at 53;  United                                    ___  ________                    ______          States v. Williams,  891 F.2d 962, 964 (1st  Cir. 1989); see also          ______    ________                                       ___ ____          United  States v.  Gonzalez-Lopez, 911  F.2d 542, 551  (11th Cir.          ______________     ______________          1990) (in considering  a career  offender case,  "a court  cannot          depart  because  it believes  a  sentence  is excessive"),  cert.                                                                      _____                                          11          denied, 500 U.S. 933  (1991).  While  we are not without  empathy          ______          for  our concurring brother's views, we are also mindful that the          courts' role "is as interpreters of the words chosen by Congress,          not  as  policymakers  or  enlargers  of  congressional  intent."          United States v. Gibbens, ___ F.3d  ___, ___ (1st Cir. 1994) [No.          _____________    _______          93-2203 slip op. at 12].  So, too, the courts' role vis-a-vis the          Sentencing Commission, so long as the  Commission acts within the          scope of its statutory authorization.          IV.  CONCLUSION          IV.  CONCLUSION                    We need go no further.  The short of it is that, in the          instant  case,  neither  the  defendant's  age,  the  prospective          duration of his immurement, nor any combination of  these factors          are  "mitigating  circumstance[s] 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).  It follows          inexorably  that the  circumstances relied  upon by  the district          court  are   inadequate   to  support   a   downward   departure.          Consequently,  the defendant's  sentence  must be  vacated.   The          district court, on  remand, shall hold a  new sentencing hearing,          at which it remains free to consider departure for other, legally          adequate  reasons (if  any  are shown).    See United  States  v.                                                     ___ ______________          Limberopoulos,  ___ F.3d ___,  ___ (1st Cir.  1994) [No. 92-1955,          _____________          slip op. at 3-4, 14].                    Vacated and remanded for resentencing.                    _____________________________________                                          12                              Concurring opinion follows                                            13                    PETTINE,   Senior  District  Judge,  concurring.    The                    PETTINE,   Senior  District  Judge,  concurring                               _______________________          demands and strictures of the United States Sentencing Guidelines          ("the guidelines"), and the limits that the guidelines place upon          federal  district court judges, constrain  me to write a separate          opinion  in this case.   I find  the logic of  Judge Selya's able          opinion  to be  unassailable,  and I  must  agree with  him  that          "absent   specific   circumstances  independently   justifying  a          departure, a  judge cannot  sentence outside a  properly computed          sentencing range  merely because he believes  that the guidelines          work too severe a sanction in a particular case."  Maj. op. at 9-          10.  Although I cannot argue with my colleague's analysis of what          the  guidelines require, I find myself  taking great exception to          the mechanical sentencing that  the guidelines force upon judges,          and  I find it  painful to  adhere to  this impersonal  and cold-          blooded process.                    In this case, the district court spontaneously departed          downward  based on  the  belief that,  for  this forty  year  old          defendant, the  twenty-seven  year sentence  required  under  the          guideline  range was  tantamount  to a  life  sentence.   At  the          Sentencing Hearing, the court articulated its belief that "I just          happen to think that this is not the kind of thing the sentencing          commission may have had in mind."  Tr., 6/25/93 at  34.  However,          a review of the case law has revealed no precedent teaching  that          the combination of age  and a lengthy sentence, resulting in a de          facto life sentence,  supports a  downward departure.   As  Judge          Selya points  out,  the guidelines  treat  age as  a  discouraged                                          14          offender characteristic for purposes of a downward departure, and          the interrelationship between age and  length of sentence has not          been considered adequate justification for  a downward departure.          Furthermore, I have been unable to find any statutory language or          legislative history  that indicates  that Congress or  the United          States  Sentencing Guidelines  Commission ("the  Commission") has          ever considered this problem.   Indeed, given the  frequency with          which  the guidelines  result in  sentences of  numerous decades,          combined with the  fact that  forty year old  defendants are  not          uncommon, logic would  seem to  dictate that the  members of  the          Commission were  unconcerned about de  facto life sentences.   In          any case, given the  dearth of documentation  as to the state  of          mind  of  the Commissioners,  the  only  conclusion  that  I  can          reasonably reach is that  it is impossible to determine  what, if          anything, the Commission intended with regard to this issue.                    Thus, I must reluctantly conclude that  there is no way          for me  to dissent from  the majority  opinion in  this case  and          still remain  faithful to the  ideal of intellectual  honesty, an          ideal which must  always be controlling  in any judicial  opinion          and which I have always treasured.  Legal precedent that supports          Judge Boyle's downward departure is simply nonexistent.  However,          my careful  and painstaking  reflection over the  consequences of          the proper application of the guidelines in this case, as well as          my  many experiences with the guidelines in the years since their          enactment, leave  me  overwhelmingly convinced  that, except  for          increased uniformity of sentences, the sentencing guidelines  are                                          15          a failed experiment.                    With regard  to the results  of the application  of the          guidelines  in this  case,  I wholeheartedly  subscribe to  Judge          Boyle's  sentiment that a term  of years amounting  to a de facto          life sentence reaches beyond that which is appropriate for crimes          committed by the defendant in the instant case.  As a like-minded          judge  articulated in  a  factually similar  case, "The  majority          decision ignores  what is truly obvious  - that the portion  of a          sentence which goes beyond the  defendant's lifespan can serve no          retributive,   deterrent,  rehabilitative  or  any  other  proper          function of a prison  sentence."  United States v.  Thornbrugh, 7                                            ____________________________          F.3d 1471, 1475 (10th Cir. 1993) (Bright, J., dissenting).                    As far as  the guidelines in  general are concerned,  I          believe  that their  greatest weakness  lies in  their mechanical          nature.  "A system that fails to consider the offender's personal          characteristics places too great  an emphasis on the  harm caused          by  the offender's act  and too little  emphasis on circumstances          that  would serve  to mitigate  the punishment.   The  Commission          should have  realized that it is  a person who stands  before the                                              ______          bar to  accept the punishment imposed by  the court."  Charles J.          Ogletree, Jr.,  The  Death  of  Discretion?   Reflecting  on  the                          _________________________________________________          Federal  Sentencing  Guidelines, 101  Harv.  L.  Rev. 1938,  1953          _______________________________          (1988).                      Unfortunately,  when  trial   judges  depart  from  the          guidelines, appellate courts are fettered in  their review of the          litigation.  As in this  case, they have little or no  choice but                                          16          to react to such departure in a rigid fashion.  In distinction to          one commentator, I feel they are "[unable] to balance the distant                                             ______          guidance of a bureaucracy  against the detailed responsibility of          the individual  sentencer."  Daniel J.  Freed, Federal Sentencing                                                         __________________          in  the Wake  of  the Guidelines:    Unacceptable Limits  on  the          _________________________________________________________________          Discretion  of  Sentences,  101 Yale  L.  J.  1681,  1730 (1992).          _________________________          Furthermore,  I  find the  authority given  by the  guidelines to          United States Attorneys, enabling  them to control the sentencing          process,  to be  entirely inappropriate  and an  invasion of  the          historical  role  of judges  as  the final  arbiters  of justice.          Incredibly, we now have  the inflexible prosecutorial mind which,          all  too often,  caters to  public passion,  dictating sentencing          parameters.      "Discretionary  decisions   of   Assistant  U.S.          Attorneys,  both as to charges and as to factual allegations, can          powerfully  expand or  limit the  judge's ambit  for sentencing."          Id. at 1723.            __                    I have struggled  with this case and feel  compelled to          voice my feelings.  My sense of justice and my twenty-eight years          of  experience  as a  district  court judge  sitting  in criminal          cases, preceded by five years as U.S. Attorney and thirteen years          as a state  prosecutor, all lead me to believe that Judge Boyle's          actions  in this case were absolutely correct.  Judge Boyle acted          as a judge,  drawing upon  his life experience  and his  judicial          experiences, making his decision  not simply by working the  grid          provided  by the guidelines, but  by balancing the  impact of the          law  upon an  individual human  being,  given that  human being's                                          17          particularized  circumstances, against the protection of society.          He  recognized the face behind the law.   He declined to function          merely as an automaton.                    The  mandates of the  guidelines may  have accomplished          uniformity of  sentencing  but they  have done  so by  tragically          eroding the sacred function of a judge in the sentencing process.          This sacred function is  a most complex, difficult,  nebulous and          at times  undefinable burden, and  it must  always be met  in the          context of the unique setting at hand.                      In considering this case, I have very seriously thought          about recusing myself  from all  future criminal cases.   I  have          found this decision an excruciatingly difficult one to  make, but          I have  chosen  to  continue  to  hear criminal  cases.    It  is          established  that  a  judge's  view  on  the  subject  matter  of          litigation  does not require recusal.   Laird v.  Tatum, 409 U.S.                                                  _______________          824 (1972).  The very nature of my criticism and reaction to this          case is abundant recognition of my duty to follow the rules where          there is no room for intellectually honest dissent.  Furthermore,          I  believe passage of the  pending Violent Crime  Control and Law          Enforcement  Act  of 1993  may  seriously  increase this  court's          criminal caseload.  When I took senior status twelve years ago at          age  seventy, I  solemnly  declared that  I  would carry  a  full          caseload.  When  the time comes  that I  can no longer  do so  as          vigorously and  effectively as my younger  esteemed colleagues, I          will  at that point  end my judicial  service.   Thus, because my          recusal would  significantly burden my colleagues,  and because I                                          18          recognize the  controlling nature of the guidelines  even while I          object  to  their substance,  I  choose  to maintain  a  criminal          docket.                    With  the foregoing  statement, I  offer no  dissent to          Judge Selya's well written opinion.                                          19
