
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1847                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    TELEX LEBLANC,                                 Defendant-Appellant.                                 ____________________          No. 93-1848                              UNITED STATES OF AMERICA,                                 Plaintiff-Appellant,                                          v.                                  TELEX J. LEBLANC,                                 Defendant-Appellee.                                 ____________________          No. 93-1998                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                                RICHARD E. WEINSTEIN,                                 Defendant-Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                _____________________               Frances  L.  Robinson with  whom  Davis,  Robinson &  White,               _____________________             _________________________          Thomas Drechsler and Finneran, Byrne, Drechsler & O'Brien were on          ________________     ____________________________________          brief for Telex J. LeBlanc.               Brian T. Kelly, Assistant  United States Attorney, with whom               ______________          Donald K. Stern, United  States Attorney, and Fred M.  Wyshak II,          _______________                               __________________          Assistant United States Attorney, were on brief for United States          of America.               Kenneth I. Seiger, by Appointment of the Court, for appellee               _________________          Richard E. Weinstein.                                 ____________________                                     May 24, 1994                                 ____________________                                         -2-                    TORRUELLA, Circuit Judge.   In this opinion, we address                               _____________          sentencing issues which are consolidated  from three appeals.  In          United  States v.  LeBlanc  and United  States v.  Weinstein, the          ______________     _______      ______________     _________          Government has  appealed the district court's  decision to depart          downward from the applicable Sentencing Guideline range.  In both          cases,  the district  court ruled  that, in essence,  the illegal          conduct  of  Telex  J.  LeBlanc  and  Richard  E.  Weinstein  was          bookmaking, and  therefore, it  was more appropriate  to sentence          them pursuant to guidelines  established for operating an illegal          gambling business,  rather than pursuant to  the money laundering          guidelines, which  were applicable  to the  crimes to  which both          LeBlanc  and  Weinstein  had  pled  guilty.    For the  following          reasons,  we reverse and remand  the cases to  the district court          for resentencing.                    In a  cross-appeal, LeBlanc  v. United  States, LeBlanc                                        _______     ______________          claims  that  the district  court erred  in  its decision  not to          depart downward from the Sentencing Guidelines based on LeBlanc's          medical  condition.  We dismiss this appeal for want of appellate          jurisdiction.                             I.  THE GOVERNMENT'S APPEALS                             I.  THE GOVERNMENT'S APPEALS                                    A.  BACKGROUND                                    A.  BACKGROUND                    We view the  facts as  set forth in  the indictment  to          which the defendants pled guilty,  and in unobjected to  portions          of  their respective  Presentence  Reports ("PSR").   See  United                                                                ___  ______          States  v. Fox, 889  F.2d 357, 358  (1st Cir.  1989); Kerrigan v.          ______     ___                                        ________          United States, 644 F.2d 47, 49 (1st Cir. 1981).          _____________                                         -3-                    1.  Telex J. LeBlanc                    1.  Telex J. LeBlanc                    LeBlanc and two other individuals, Stephen Dickhaut and          William  Byrne, operated an illegal gambling business  during the          years  1986 through 1990.   Essentially, LeBlanc was convicted of          money  laundering based  upon his  acceptance and  negotiation of          checks from gamblers who  bet on various sporting events  through          the  bookmaking business.   LeBlanc  was an  "agent" for  his two          codefendants  who "owned" the  business, and LeBlanc  had his own          "customers" for whom he received commissions.                    The  gamblers'  checks  were  usually made  payable  to          fictitious payees and  were in  amounts less than  $10,000.   For          instance, one  gambler settled a  gambling debt with  LeBlanc and          his codefendants by  giving them four  cashier's checks from  the          First National Bank of  Boston, all dated November 26,  1990, and          each in the amount of $8750.  These cashier's checks were payable          to  a  fictitious  payee,   "J.  Johnson."    LeBlanc  personally          negotiated one  of these  cashier's checks at  Baybank Boston  on          November 27, 1990.                    On November  12, 1992, a federal grand  jury returned a          seventeen-count  indictment against  LeBlanc.  Count  One charged          that between  1986 and 1990,  LeBlanc and  two other  individuals          conspired to  violate money  laundering and  currency transaction          laws in violation of 18  U.S.C.   371.  Counts Two  through Four,          and  Counts  Eight  through  Sixteen,  charged  LeBlanc  and  his          codefendants  with  various substantive  money  laundering crimes          including violations of 18 U.S.C.    1956 and 1957, as well as 31                                         -4-          U.S.C.   5324.                    On January 25, 1993, LeBlanc pled guilty to Counts One,          Two, Nine, Eleven, Twelve, Fifteen and Sixteen of the indictment.          LeBlanc's guilty pleas  were entered pursuant to a plea agreement          with the Government, in which LeBlanc  agreed that he had in fact          violated   the  money   laundering  statutes  specified   in  the          indictment.                    The  Probation Department  then issued  its PSR,  which          indicated that,  based upon sentencing "grouping"  rules, LeBlanc          should be  sentenced for money laundering, based  upon his guilty          plea to 18 U.S.C.    1956(a)(1)(B)(i) and (ii).1   Therefore, the          offense level, as set forth in U.S.S.G.   2S1.1, should have been          23.2   The Government suggested that after a three level decrease          in  offense level for  acceptance of  responsibility and  a three                                        ____________________          1   Because  all  of  the counts  to  which  LeBlanc pled  guilty          involved  substantially the  same  harm, the  counts  were to  be          "grouped"  together  pursuant  to   U.S.S.G.     3D1.2(d).    The          sentencing guidelines applicable to the specific money laundering          offenses to which LeBlanc pled  guilty were U.S.S.G.    2S1.1-.3.          U.S.S.G.   2S1.1(a)(2) establishes a base offense level of 20 for          laundering  monetary  instruments in  violation  of  18 U.S.C.             1956(a)(1)(B)(i) and  18 U.S.C.   1956(a)(1)(B)(ii).   U.S.S.G.            2S1.2(a) establishes a base offense level of 17 for violations of          18 U.S.C.   1957.   U.S.S.G.   2S1.3(a)(1)(A) establishes  a base          offense level of 13 for structuring transactions in  violation of          31 U.S.C.    5324.  According to U.S.S.G.    3D1.3, the Guideline          section with  the  highest  offense level  must  be  utilized  to          calculate the Guideline range  for these money laundering crimes.          Under  either U.S.S.G.    3D1.3(a)  or (b),  the highest  offense          level (i.e. 20) should have been applied to LeBlanc.          2   In  the plea  agreement, the  Government stipulated  that the          value of the funds involved  in the counts to which LeBlanc  pled          guilty   was  less  than  $600,000.     Pursuant  to  U.S.S.G.             2S1.1(b)(2)(D), three points were added to the base offense level          of 20 because the value of the funds exceeded $350,000.                                         -5-          point decrease  in offense  level for LeBlanc's  mitigating role,          the final total offense level should be 17 with a guideline range          of 24-30 months' incarceration.                    On  June  25, 1993,  the  district court  held  a final          disposition hearing.  At  this hearing, the court found  that the          conduct  attributable  to  LeBlanc  was  essentially  that  of  a          bookmaker, who  took sporting bets from bettors.  His status as a          "money  launderer" arose solely by  virtue of the  fact that bets          were placed with him by check, and these checks were subsequently          either negotiated by  him or turned over to Dickhaut and Byrne to          be  negotiated by  them.   The court  stated that  LeBlanc's case          involved  behavior that  fell  outside of  the  "heartland" of  a          typical  money  laundering offense  and,  therefore, warranted  a          downward departure from the otherwise applicable Guideline range.          The court then ruled  that the Guideline section established  for          operating an illegal gambling  business was more appropriate, and          proceeded  to  sentence  LeBlanc  to   12  months'  incarceration          pursuant to U.S.S.G.    2E3.1, which sets forth an  offense level          of 12  and a corresponding  Guideline range  of 10 to  16 month's          incarceration for an individual  with a Criminal History Category          of I.                    2.  Richard E. Weinstein                    2.  Richard E. Weinstein                    Weinstein  operated an  illegal gambling  business from          1986 to 1991.   In January 1988, Weinstein began  accepting large          sports bets from a gambler named Elliot Mael.  In order to gamble          through Weinstein, Mael would call Weinstein's beeper and leave a                                         -6-          code number representing  Mael.  Weinstein  would then call  Mael          and  accept his wagers.  Mael would  "settle" with Weinstein on a          weekly basis, and usually exchanged cash.                    In  October 1988,  Mael  owed  Weinstein  approximately          $200,000 in gambling  debts.  To satisfy part of  this debt, Mael          paid  Weinstein  $75,000  in   cashier's  checks.    Pursuant  to          Weinstein's instructions, Mael made nine cashier's checks payable          to Brockton  Financial Services  rather than to  Weinstein.   The          nine cashier's checks were issued by the Bank of New England, and          were  all  dated October  14, 1988.    Weinstein then  gave these          cashier's  checks to  another bookmaker,  James Katz,  who cashed          them at Brockton Financial Services.  The checks  were structured          so as to avoid currency reporting requirements applicable to cash          transactions exceeding  $10,000 --  eight checks were  for $9,000          and one check was for $3,000.                    On November 12, 1992,  a federal grand jury  returned a          five-count indictment against Weinstein.   Count One charged that          between 1986 and 1991, Weinstein  and others conspired to violate          money laundering and currency transaction laws in violation of 18          U.S.C.   371.  Counts Two, Three and Four charged  Weinstein with          various substantive money laundering crimes, including violations          of 18 U.S.C.    1956  and 1957, as well as 31 U.S.C.    5324.  On          March 4, 1993, Weinstein  pled guilty to Counts One  through Four          of  the  indictment.    Weinstein's  guilty  pleas  were  entered          pursuant  to  a  plea  agreement  with the  Government  in  which          Weinstein   agreed  that  he  had  in  fact  violated  the  money                                         -7-          laundering statutes specified in the indictment.                    The  Probation Department  then issued  its PSR,  which          indicated that, based upon sentencing "grouping" rules, Weinstein          should  be sentenced for money  laundering, based upon his guilty          plea to 18 U.S.C.    1956(a)(1)(B)(i) and (ii).3   Therefore, the          base  offense level,  as  set forth  in  U.S.S.G.    2S1.1(a)(2),          should have been 20.  The Government suggested that after a three          level reduction for  acceptance of responsibility, as well  as an          additional two  level reduction  for his  mitigating role  in the          overall  conspiracy,  the   applicable  offense  level  was   15,          corresponding to a sentencing range of 21-27 months.                    On  August  5,  1993,  the  district  court   sentenced          Weinstein.     The  court  departed  from  the  applicable  money          laundering  Guideline   range  because   the  court  found   that          Weinstein's  behavior  essentially  constituted  bookmaking,  and          therefore  fell  outside of  the "heartland"  of a  typical money          laundering  offense.    The   court  instead  adopted  a  reduced          sentencing  range  based  on    2E3.1, which  is  applicable  for          operating an  illegal gambling business, and which  sets forth an          offense level of 12 and a corresponding Guideline range of  12 to          18  months'  incarceration  for  an individual  with  a  Criminal          History Category of II.  The court then sentenced Weinstein to 12          months' incarceration.                                B.  STANDARD OF REVIEW                                B.  STANDARD OF REVIEW                                        ____________________          3   The sentencing  grouping rules  operate  the same  way as  in          LeBlanc's case to arrive at this conclusion.  See supra note 1.                                                        ___ _____                                         -8-                    The  first   issue  that  we  must   determine  is  the          appropriate standard  of review on appeal.   Generally, appellate          review of a sentencing decision involves three questions:  1) are          the departure related circumstances of a sort that the sentencing          court  can appropriately rely  upon to justify  its departure; 2)          does  the  record  support a  finding  of  fact  establishing the          existence of such circumstances;  and 3) does the  record support          the  "direction  and degree"  of  departure.    United States  v.                                                          _____________          M ndez-Col n,  No. 93-1346,  slip. op.  at 3  (1st Cir.  Jan. 19,          ____________          1994);  United  States v.  D az-Villafa e, 874 F.2d  43, 49  (1st                  ______________     ______________          Cir.), cert. denied,  493 U.S. 862 (1989).   In United States  v.                 ____________                             _____________          Rivera,  994 F.2d  942  (1st Cir.  1993),  we elaborated  on  the          ______          appropriate  standard of review which  we would employ to address          certain sentencing departure issues.                      Plenary review is . . . appropriate where                      the appellate court, in  deciding whether                      the  allegedly special  circumstances are                      of a "kind"  that permits departure, will                      have  to  perform  the  "quintessentially                      legal" function . .  . of interpreting  a                      set  of  words,  those of  an  individual                      guideline, in light of their intention or                      purpose,  in order to identify the nature                      of the guideline's "heartland" (to see if                      the allegedly  special circumstance falls                      within it).          Id.  at 951 (citations omitted).  Thus, where departure decisions          __          "reflect a determination of the  purpose of, or an interpretation          of the language  in, a  guideline or statute,  plenary review  is          appropriate."  United  States v. Rosales, No.  92-1732, slip. op.                         ______________    _______          at 16  (1st Cir. March  31, 1994)  (internal quotations  omitted)          (citation omitted).                                         -9-                    The district  court issued  a Sentencing  Memorandum to          support its downward  departure in United States  v. LeBlanc, 825                                             _____________     _______          F. Supp.  422  (D. Mass.  1993).   We  quote this  memorandum  at          length,  in order to have  a complete understanding  of the basis          for the district court's decision:                      Congress has empowered district courts to                      impose a sentence  outside the  guideline                      range  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."  l8 U.S.C.                        3553(b);  U.S.S.G.    5K2.0.    This case                      presents  just such  a circumstance.   It                      involves behavior that  falls outside  of                      the  "heartland"  of   a  typical   money                      laundering offense. . . .                       Here,  LeBlanc  acted  as   a  bookmaking                      agent,   an   offense   for   which   the                      guidelines set forth a base offense level                      of 12.  It is difficult for this court to                      conceive of gambling  being conducted  or                      transacted  in  any  form  other  than by                      money or monetary   instruments.  Yet, by                      participating in conduct which  calls for                      a base offense  level of 12, LeBlanc  was                      charged  with   money  laundering,  which                      calls  for an offense  level of 17, given                      LeBlanc's  acceptance of  responsibility.                      In essence, LeBlanc finds  himself facing                      a sentence far in excess of that which is                      commensurate with his actual conduct.                      While  LeBlanc's conduct  may technically                      constitute money laundering -- an offense                      to which he has pled guilty -- this court                      finds that sentencing him pursuant to the                      strictures   of   the  money   laundering                      statute  would  present  an inequity  not                      adequately  taken  into consideration  by                      the  Sentencing Commission.  See [Rivera,                                                   ___  ______                      994 F.2d at 947-49]; cf. United States v.                                           ___ _____________                      Edgmon, 952   F.2d 1206, 1214  (10th Cir.                      ______                      1991)("Congress aimed the crime  of money                      laundering  at  conduct  that follows  in                                         -10-                      time  the underlying crime rather than to                      afford an alternative means  of punishing                      the     prior     'specified     unlawful                      activity'"),  cert.   denied,  112  S.Ct.                                    ____    ______                      3037.   LeBlanc took checks  from bettors                      and  either  negotiated  them himself  or                      turned  them  over  to  his  supervisors,                      Dickhaut  and Byrne.    When  all of  the                      verbiage    and   terminology    in   the                      indictment are stripped away, that is the                      sum  and  substance  of the  conduct  for                      which he was charged.   Accordingly, this                      court  finds  that  a  5  level  downward                      departure is warranted,  resulting in  an                      offense level of 12.          United States v. LeBlanc, 825 F. Supp. at 423-24.          _____________    _______                    In United States v. Weinstein, 828 F. Supp. 3 (D. Mass.                       _____________    _________          1993), the court, citing LeBlanc, based its downward departure on                                   _______          an identical  rationale.  The  court reiterated  its belief  that          because  it  could not  conceive of  a  manner in  which gambling          operations  could be  conducted  without the  exchange of  money,          application of the money  laundering statute to someone who  is a          bookmaker would  always result  in a simultaneous  application of          the money  laundering statutes,  which would be  an impermissible          "alternative means  of  punishing the  prior  specified  unlawful          activity."  Weinstein, 828 F. Supp. at 5.                      _________                    In  both  cases, the  sentencing  court suggested  that          money  laundering offenses  that  stem from  the prior  specified          unlawful activity of operating  an illegal gambling business fell          outside of  the "heartland"  of the money  laundering guidelines.          The court's decisions were not factually tied to the specifics of          the  cases of LeBlanc or  Weinstein.  Rather,  the decisions were          categorical, legal  conclusions centered on the  intent and scope                                         -11-          of  the money laundering statutes, and thereby, the nature of the          applicable  sentencing   guideline's  heartland.    This   was  a          quintessentially legal question, and  as such, subject to plenary          review.                              C.  THE DEPARTURE DECISION                              C.  THE DEPARTURE DECISION                    We   first  review   the  district   court's  departure          decisions    to    determine   whether    the   departure-related          circumstances it relied upon to depart downward were appropriate,          and  more  specifically,  whether  the  conduct  of  LeBlanc  and          Weinstein  fell outside  of  the  heartland  of a  typical  money          laundering  case.    The   Government  contends  that  the  court          construed the  scope of 18 U.S.C.    1956 much too  narrowly.  It          claims that the actions of LeBlanc and Weinstein ran afoul of the          money  laundering  statute,  and  both so  admitted  by  pleading          guilty.   Therefore, the Government argues, the court should have          sentenced them pursuant to the money laundering guideline.                    LeBlanc and Weinstein contend that  the court correctly          concluded  that their  cases  were atypical  of  the usual  money          laundering  case,  and  that  their illegal  conduct  was  simply          gambling.   Thus,  LeBlanc  and Weinstein  argue  that the  court          properly  found that  it  would be  inequitable to  sentence them          pursuant  to  the  money  laundering  guideline,  and  rightfully          departed downward.                    To determine the  applicable sentence,  a court  should          first determine the offense  guideline section most applicable to          the  offense of conviction, which is "the offense conduct charged                                         -12-          in  the count of the indictment .  . . of which the defendant was          convicted."  U.S.S.G.    1B1.2.  Both LeBlanc and  Weinstein pled          guilty to violations of 18 U.S.C.    1956 and 1957, as well as 31          U.S.C.    5324.  For sentencing purposes, the operative counts in          the indictments  charged that  LeBlanc and Weinstein  violated 18          U.S.C.   1956(a)(1)(B)(i) and (ii).4                    To  determine   the  nature  of  the   crime  of  money          laundering, and  therefore the  scope of the  "heartland" of  the          corresponding  sentencing guideline,  we  look, in  part, to  the          language of  the statute  and the legislative  history associated          with it.  18 U.S.C.   1956 provides in pertinent part:                      (a)(1) Whoever, knowing that the property                      involved   in  a   financial  transaction                      represents the proceeds  of some form  of                      unlawful  activity, conducts  or attempts                      to conduct such  a financial  transaction                      which  in fact  involves the  proceeds of                      specified unlawful activity -                      (B)  knowing  that  the   transaction  is                      designed in whole or in part -                         (i) to conceal or disguise the nature,                      the location, the source,  the ownership,                      or   the  control  of   the  proceeds  of                      specified unlawful activity; or                         (ii) to avoid a  transaction reporting                      requirement under State or Federal law,                       shall be  sentenced to  a fine .  . .  or                                        ____________________          4  This is so  because the counts to which LeBlanc  and Weinstein          pled guilty  involved substantially the same  harm, and therefore          the  counts were  grouped together.   U.S.S.G.    3D1.2(d).   The          sentencing grouping  rules mandate that a  defendant be sentenced          pursuant to the guideline section with the highest offense level.          U.S.S.G.   3D1.3.  In this case, the applicable guideline section          is U.S.S.G.  2S1.1(a)(2), which establishes a  base offense level          for laundering monetary instruments.                                         -13-                      imprisonment . . . or both.          This  statute was enacted as part of the Money Laundering Control          Act of 1986.  See S. Rep.  No. 433, 99th Cong., 2d. Sess. (1986);                        ___          H.R.  Rep. No.  855, 99th Cong.,  2d. Sess.,  pt. 1  (1986).  The          legislative   history  associated  with     1956  indicates  that          Congress  designed the statute to  fill "the gap  in the criminal          law with respect to  the post-crime hiding of  ill-gotten gains,"          and intended  money laundering  to be a  separate crime  distinct          from the  underlying offense  that generated  the money.   United                                                                     ______          States v. Johnson, 971  F.2d 562, 569 (10th Cir.  1992) (citation          ______    _______          omitted);  United States  v.  Edgmon, 952  F.2d  1206 (10th  Cir.                     _____________      ______          1991), cert.  denied, 112 S. Ct.  3037 (1992);  United States  v.                 ____   ______                            _____________          Lovett, 964 F.2d 1029  (10th Cir.), cert. denied, 113  S. Ct. 169          ______                              _____ ______          (1992); see also United States v. Stavroulakis, 952 F.2d 686, 691                  ________ _____________    ____________          (2d  Cir.), cert. denied, 112 S. Ct. 1982 (1992).  Congress aimed                      ____  ______             1956 "at  conduct that  follows in  time the  underlying crime          rather than to afford an alternative means of punishing the prior          'specified unlawful activity.'"  Johnson, 971 F.2d at 569.                                           _______                    As  noted by  the district  court, the  "classic" money          laundering  case  is  where  "a drug  trafficker  collects  large          amounts of cash from  drug sales and, acting with  the complicity          of  a banker or other person in a financial institution, deposits          the  drug proceeds  in a  bank  under the  guise of  conducting a          legitimate business transaction."   United  States v.  Weinstein,                                              ______________     _________          828 F. Supp. at 5 (quoting Johnson, 971 F.2d at 568).   The Money                                     _______          Laundering Control Act, however,  "prohibits a much broader range                                         -14-          of conduct than just the 'classic' example of money  laundering."          Johnson,  971  F.2d at  569.   The  language of  the  statute, in          _______          conjunction with the definitions provided in 18 U.S.C.   1956(c),          indicates that Congress  intended to criminalize a broad array of          transactions  designed  to  facilitate  numerous  federal crimes,          including illegal gambling.  See generally Stavroulakis, 952 F.2d                                       ___ _________ ____________          at  691 ("Section 1956 creates the crime of money laundering, and          it takes dead  aim at the attempt to launder dirty  money . . . .          Congress has  made clear  that concealing  the source  of illegal          gambling proceeds is just as detrimental to society as concealing          the source of  narcotics money."); United States  v. Skinner, 946                                             _____________     _______          F.2d 176, 177 (2d Cir. 1991).5                    There  is little  question  that the  conduct to  which          LeBlanc and Weinstein pled guilty not only comes within the plain          language  of 18  U.S.C.    1956,  but  also was  within  the full          contemplation  of   Congress  when   it  enacted   that  statute.          Weinstein  asked gamblers  to structure  their checks  in amounts          less than $10,000;  he asked  that the gamblers  make the  checks          payable to fictitious payees; he received the checks; and he then          negotiated the  checks.   LeBlanc received and  negotiated checks          obtained from  illegal gambling  activities, which had  been made          payable to fictitious payees.                    The  district  court  suggests  that  all  LeBlanc  and          Weinstein  are really guilty of  is gambling, and  that the money                                        ____________________          5  The  language of U.S.S.G.    2S1.1 and  the associated  policy          statements are  not inconsistent with this  interpretation of the          scope of the crime of money laundering.                                         -15-          laundering statutes were improperly used as an alternative method          to punish this underlying  offense.  As a preliminary  matter, if          the  court did not believe that LeBlanc and Weinstein were guilty          of  money laundering,  the court  should have  refused  to accept          their guilty pleas to those offenses for lack of a factual basis.          Moreover,  LeBlanc and  Weinstein did  more than  conduct illegal          gambling businesses.  Both took specific  and concrete actions to          launder  the  proceeds  from  these  gambling  activities.    The          critical financial  transactions occurred after the  gamblers had          placed  and lost  their wagers with  LeBlanc and  Weinstein, when          they then negotiated the  checks.  The court's recharacterization          of the actual conduct  of LeBlanc and Weinstein ignores  the fact          that  they both  pled  guilty  to,  and  were  guilty  of,  money          laundering,  a distinct,  successor offense.   See,  e.g., United                                                         ___   ____  ______          States v. Morris, 18 F.3d 562, 569 (8th Cir. 1994).            ______    ______                    Put  simply,   the  court  failed  to   recognize  that          defendants  had  committed two  offenses;  gambling,  followed by          money laundering.  Its statement that  it was "difficult . . . to          conceive of gambling  being conducted or  transacted in any  form          other than by money or monetary instruments," and that sentencing          for money  laundering "would present  an inequity,"   misses  the          point.  There  was no inequity.   Leblanc  and Weinstein did  not          have to act in a manner that patently violated 18 U.S.C.   1956.                    The court  erred by construing  the scope of  the money          laundering  statute,  and  the  heartland  of   its  commensurate          sentencing  guideline too narrowly.   The conduct  of LeBlanc and                                         -16-          Weinstein  did, in fact, fall  within the "heartland"  of a money          laundering  case, and therefore their conduct was not of a "kind"          that properly justified a  downward departure.  We find  that the          court erred by departing downward, and that LeBlanc and Weinstein          should have  been  sentenced pursuant  to the  strictures of  the          money laundering guideline.                                         -17-                                II.  LEBLANC'S APPEAL                                II.  LEBLANC'S APPEAL                                    A.  BACKGROUND                                    A.  BACKGROUND                    At sentencing, LeBlanc  moved for a downward  departure          from the Sentencing Guidelines based upon his physical condition.          LeBlanc suffered his first heart attack in 1981 at the age of 34.          After  pleading  guilty  in  the  instant  case,  while  awaiting          sentencing, LeBlanc suffered a  second heart attack on  March 18,          1993.                    Prior  to   the  first  disposition   hearing,  LeBlanc          submitted a medical report  to the court from his  own physician,          Dr. Solomon A. Gabbay.  The report stated that "Mr. LeBlanc has a          [known] history of coronary artery disease" and that "Mr. LeBlanc          will probably require long term therapy for his cardiac history."          Dr. Gabbay concluded:  "[a]t this  point in time  I would  expect          [LeBlanc] to require medicine for the rest of his life."                    The  initial disposition  hearing was  held on  May 20,          1993.   The court then continued  the hearing and ordered that an          independent cardiologist examine  LeBlanc, at Government expense,          and report the  medical findings  to the court  to determine  the          extent and seriousness of LeBlanc's cardiac problems.                    A second disposition hearing was held on June 25, 1993.          Pursuant to the court's previous order, LeBlanc had been examined          by Dr. Guy L. Reed on June 10, 1993.  Dr. Reed issued a report in          which he stated  that LeBlanc  had coronary artery  disease.   He          concluded that LeBlanc's "heart  disease is likely to  be largely          controlled with medication but  he is also at risk  for recurrent                                         -18-          myocardial infarction.   Because  of his coronary  artery disease          and  hypercholesterolemia,  he  will  continue  to  need  ongoing          medical care indefinitely with check-ups at 4-6 month intervals."                    After reviewing Dr. Reed's report, the court refused to          grant  LeBlanc a downward departure based on health reasons.  The          court stated:                      I  don't read  this report  as  being one                      that  would  even  permit me,  let  alone                      persuade me, to go beyond the guidelines.                      Now,  I  would  put it  in  those  terms;                      because,  if  I am  wrong,  then you  can                      appeal that.  In other words, I determine                      that this report, which we will mark as a                      Court Exhibit,  does  not permit  me,  or                      there is nothing  here that would  permit                      me  to go below the guidelines.   If I am                      wrong as a matter  of law, you can appeal                      it, and you can come back and we will re-                      sentence him.                              B.  THE DEPARTURE DECISION                              B.  THE DEPARTURE DECISION                    As a general rule, a  district court's refusal to grant          a  downward  departure  is  not  appealable.    United States  v.                                                          _____________          Lombardi, 5  F.3d 568,  571 (1st Cir.  1993);   United States  v.          ________                                        _____________          Hilton,  946  F.2d 955,  957 (1st  Cir.  1991); United  States v.          ______                                          ______________          Romolo,  937 F.2d 20, 22 (1st Cir. 1991).  Appellate jurisdiction          ______          does attach, however, where  the sentencing court's decision "not          to depart is based on the court's mistaken view that it lacks the          legal  authority to consider a  departure."  Hilton,  946 F.2d at                                                       ______          957 (quoting Romolo,  937 F.2d at  22).  Thus,  in order to  have                       ______          jurisdiction,   we  must   conclude  that   the   district  court          misunderstood  its  authority  to depart  under  the  guidelines.          United States  v. DiIorio, 948 F.2d 1, 8 (1st  Cir. 1991).  If we          _____________     _______                                         -19-          find that the court  understood its power to depart,  but refused          to  exercise that  power, we  lack jurisdiction  to consider  the          appeal.   Id.    In fact,  the  district court  acknowledged  our                    __          ability  to review  its decision  when the  court stated  that it          lacked the legal authority to depart based upon the circumstances          presented to it, and that LeBlanc could appeal this determination          if the court was wrong as a matter of law.                    We  believe that  based upon  the record,  the district          court  fully   understood  its   ability  to  depart   under  the          guidelines, but found that it was unable to do so under the facts          of  this  case.    LeBlanc   contends  that  the  district  court          erroneously concluded  that it was "forbidden"  by the guidelines          to consider his heart condition as a basis for departure.   We do          not agree.  At the first disposition hearing, LeBlanc moved for a          downward  departure based  on his  heart condition  and presented          supporting evidence from  his physician, Dr.  Gabbay.  The  court          then  continued the  hearing and  ordered the  parties to  have a          court  appointed  physician  examine  LeBlanc  to  determine  the          severity of his heart condition.   If the court had believed that          a downward  departure was forbidden,  it would not  have required          the parties to  engage in  the useless exercise  of obtaining  an          independent physician's opinion.   Thus, the court considered the          possibility that  LeBlanc's heart condition warranted  a downward          departure,  but  after  reviewing   the  facts,  found  that  his          condition was not serious enough to justify such a departure.                    The  court correctly  understood  that a  departure for                                         -20-          medical reasons was "discouraged"  by the guidelines.  Departures          based  upon health  problems are  "discouraged" and  can only  be          justified if the medical problems are "present in unusual kind or          degree".   Rivera, 994 F.2d at  948.  U.S.S.G.    5H1.4 states in                     ______          pertinent part:                      Physical    condition   or    appearance,                      including  physique,  is  not  ordinarily                      relevant   in   determining   whether   a                      sentence should be outside the applicable                      guideline    range.        However,    an                      extraordinary physical  impairment may be                      a reason  to impose a sentence  below the                      applicable guideline range . . . .                    Based upon the facts presented to it at sentencing, the          district  court did  not believe  that LeBlanc's  heart condition          presented an extraordinary physical impairment within the meaning          of U.S.S.G.    5H1.4 that would permit the court  to depart, much          less persuade it to do so, under the Guidelines.  LeBlanc suffers          from a  heart condition.   Both Dr.  Gabbay and Dr.  Reed stated,          however,  that LeBlanc's  heart condition  could be  treated with          medicine.  There  was no indication in either physicians' medical          report  that LeBlanc's life  would be threatened  or shortened by          virtue  of  being  incarcerated.    Additionally,  there  was  no          evidence that the Bureau of Prisons would be unable to adequately          accommodate LeBlanc's medical needs.                    There was  nothing in  the record which  indicated that          the  sentencing  court was  mistaken  about its  power  to depart          downward.    Rather, the  court  fully  understood its  departure          ability,  but concluded  that  U.S.S.G.    5H1.4  simply did  not          permit departure under  the circumstances.   This was a  judgment                                         -21-          call  which was supported  by the record.   As such,  the court's          departure  decision is  not  reviewable on  appeal.   See,  e.g.,                                                                ___   ____          DiIorio, 948 F.2d at 9.          _______                    For   the  foregoing  reasons,   with  respect  to  the                    _______________________________________________________          Government's  appeals, we  vacate  the sentences  of LeBlanc  and          _________________________________________________________________          Weinstein,  and  remand  the  case  to  the  district  court  for          _________________________________________________________________          resentencing.  With respect to LeBlanc's cross-appeal, the appeal          _________________________________________________________________          is dismissed for want of appellate jurisdiction.          _______________________________________________                                         -22-
