
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1674                                    UNITED STATES,                                      Appellee,                                          v.                                 PHILIP GRANDMAISON,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Steven J. McAuliffe, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                             and Keeton,* District Judge.                                          ______________                                 ____________________            Martin G. Weinberg, with whom Oteri,  Weinberg & Lawson, Cathy  J.            __________________            _________________________  _________        Green,  and Kimberly  Homan,  Sheketoff &  Homan,  were on  brief  for        _____       _______________   __________________        appellant.            Peter E. Papps, First Assistant United States  Attorney, with whom            ______________        Paul M. Gagnon, United States Attorney, were on brief for appellee.        ______________                                 ____________________                                    March 1, 1996                                 ____________________        ______________________        *Of the District of Massachusetts, sitting by designation.                      BOWNES, Senior Circuit Judge.  On February 8, 1995,                      BOWNES, Senior Circuit Judge.                              ____________________            pursuant to a plea  agreement with the government, defendant-            appellant  Philip  Joseph  Grandmaison  ("Grandmaison")  pled            guilty to a one count information charging him with utilizing            the mail system to defraud Nashua, New Hampshire, citizens of            their right to the honest services of their public officials,            in violation of  18 U.S.C.     1341, 1346.   Grandmaison  now            appeals  the  eighteen-month  sentence  of   imprisonment  he            received, contending that the district court failed to depart            downward  from  the  minimum  prison  term  mandated  by  the            Sentencing Guidelines ("Guidelines") because of the erroneous            view that  it lacked authority to  do so.  We  agree that the            district  court  misapprehended   its  authority  to   depart            downward  on   aberrant  behavior   grounds.     See  Federal                                                             ___            Sentencing  Guidelines Manual  Ch. 1,  Pt. A,  Introduction              4(d) (1994).   Accordingly, we vacate the sentence and remand            to  the  district  court  for a  determination  of  whether a            downward  departure  on the  basis  of  aberrant behavior  is            warranted  in this case.  Jurisdiction stems from 18 U.S.C.              3742.            I.        THE FACTS            I.        THE FACTS                      We  consider   the  facts  as  set   forth  in  the            unobjected-  to  portions  of  the  Presentence Investigation            Report  ("PSR"),  the  information  to  which  defendant pled            guilty, and  the sentencing  hearing transcript.   See, e.g.,                                                               ___  ____                                         -2-                                          2            United  States v. LeBlanc, 24 F.3d 340, 342 (1st Cir.), cert.            _________________________                               _____            denied, -- U.S. --, 115  S. Ct. 250 (1994); United  States v.            ______                                      _________________            Brewster,  1 F.3d 51, 52 (1st Cir. 1993).  Grandmaison served            ________            as  an  "at-large" member  on  the Nashua  Board  of Alderman            ("Board") from 1986 to  1993.  The Board consists  of fifteen            members -- six of whom are elected  at-large and nine of whom            are  elected from one of Nashua's nine electoral wards -- and            functions   as  Nashua's  chief   legislative  arm,  enacting            municipal  legislation   and  approving  all   financing  and            municipal construction  projects.  Grandmaison  served on the            Board's Secondary School Coordinating Committee  ("SSCC") and            the Joint Special School Building Committee ("JSSBC").                      Like many of his aldermanic colleagues, Grandmaison            also  had  a full-time  job.   He  was employed  as Marketing            Director   of  the   Eckman  Construction   Company  ("Eckman            Construction"),  a Bedford, New Hampshire-based company, from            1989  to  1993.     In   addition  to  his   job  as   Eckman            Construction's  Marketing Director,  Grandmaison participated            in a number of charitable activities.                          In 1990, the Board  began seeking construction bids            for a $6.3 million project, the renovation of Nashua's sixty-            year old  Elm Street Junior High  School.  Both the  SSCC and            the JSSBC,  the two  committees on which  Grandmaison served,            play  integral  roles  in  selecting  a  school  construction            contractor and  in overseeing the construction  process.  The                                         -3-                                          3            SSCC, inter alia, preselects school construction contractors,                  _____ ____            oversees  school construction or  renovation work,  and makes            recommendations   concerning   contractor  expenditures   and            payments.  The JSSBC, which is comprised of both alderman and            Nashua    School   Board   members,    reviews   the   SSCC's            recommendations regarding contractors, payments, and contract            modifications.                      Eckman   Construction  submitted  a   bid  for  the            lucrative Elm  Street School Project  contract.  In  spite of            the conflict  in interest,  Grandmaison remained on  both the            SSCC  and  the JSSBC  for  months  after Eckman  Construction            submitted its  bid.   He publicly  recused himself  from both            committees on January 9, 1991, but only after questions  were            raised  about his  connections to  Eckman Construction.   The            subcommittee  vacancies  created by  Grandmaison's departures            were filled  by Alderman Thomas Magee  ("Magee"), an at-large            member of the Board and purported construction aficionado.                      After  recusal from the SSCC and JSSBC, Grandmaison            continued  as an  at-large  member of  the  Board.   He  also            secretly  took steps to manipulate the contacts he enjoyed as            an  alderman  to  Eckman   Construction's  advantage.    From            February 1991 until shortly before the Elm Street Project was            completed,  Grandmaison  lobbied  three  of   his  aldermanic            colleagues -- Magee, Steve Kuchinski ("Kuchinski"), and  Anne            Ackerman   ("Ackerman"),  SSCC   chairperson  --   on  Eckman                                         -4-                                          4            Construction's behalf.  Grandmaison distributed informational            materials  and video cassettes  about Eckman  construction to            both  Ackerman  and  Magee.   At  the  behest  of Hal  Eckman            ("Eckman"),  president  of  Eckman Construction,  Grandmaison            gave  gratuities,  gifts,  and   other  things  of  value  to            Kuchinski,  Magee,  and  Ackerman   before  and  after  major            contract selection  votes.   These gratuities and  gift items            included  pay-per-view  sporting   events,  dinners,   money,            campaign  contributions,  and  promises of  future  political            support.  Grandmaison also  extended Ackerman a personal loan            and steered Eckman Construction printing jobs to the printing            business she owned.                      These lobbying  efforts eventually bore fruit.   In            June 1991, the Board awarded  the Elm Street Project contract            to  Eckman Construction  by a  vote of  eight to  seven, with            Kuchinski  casting  the  tie-breaking  vote.     The  project            contract,  which  the  Board  subsequently  mailed  to Eckman            Construction,  served as  the basis  for the  charges brought            against Grandmaison.  The government charged Grandmaison with            violating  18 U.S.C.     1341, 1346, the  mail fraud statute.            Specifically,  it maintained  that  Grandmaison utilized  the            mail system to  forward a fraudulent  scheme in violation  of            the oath of  honest, faithful, and impartial  service he took            before becoming an  alderman and  a host of  state and  local            laws  pertaining,  inter  alia,  to  conflicts  of  interest,                               _____  ____                                         -5-                                          5            influencing discretionary decisions  by public servants,  and            acceptance of  pecuniary benefits  by public officials.   See                                                                      ___            New Hampshire Revised Statutes Annotated  640 et seq. (1986 &                                                          __ ____            Supp. 1994);  Nashua, N.H., Rev. Ordinances     2-273, 2-274,            2-276, 2-278;  and   Nashua, N.H.,  Rev. Ordinances     7:56,            7:59.  The government also prosecuted Magee and Kuchinski for            their roles in this case.                      Pursuant to a  plea agreement with the  government,            Grandmaison pled  guilty to a one  count information charging            him with utilizing the mail system to defraud Nashua citizens            of their  right  to  the  honest  services  of  their  public            officials.  The district court scheduled a sentencing hearing            and  prior   thereto  received  a  PSR   from  the  Probation            Department.   The  PSR prepared  by the  Probation Department            recommended  a  total  adjusted  guideline offense  level  of            fifteen.    This  recommendation  reflects  an   eight  level            increase in the base  offense because a public official  in a            decision  making position  committed  the crime  and a  three            level  decrease   for  acceptance  of  responsibility.    See                                                                      ___            U.S.S.G.      2C1.7(b)(1)(B), 3E1.1  (a)  and  (b).   Because            Grandmaison  had  no  prior criminal  record,  the  Probation            Department  placed  him  in  Criminal History  Category    I,            resulting in  a sentencing  range of eighteen  to twenty-four            months.            II.       THE SENTENCING HEARING            II.       THE SENTENCING HEARING                                         -6-                                          6                      At  the sentencing hearing, Grandmaison requested a            downward  departure  to  an  offense level  of  eight,  which            corresponds  to a  sentencing range  of zero  to six  months.            Grandmaison based this request on three interrelated grounds:            1)  his  criminal  conduct  constituted  "aberrant  behavior"            within  the  meaning  of  Guidelines  Manual  Ch.  1, Pt.  A,            Introduction               4(d); 2) his extraordinary contributions  to family, friends,            and  the  community  were  not adequately  addressed  by  the            Guidelines; and 3) the facts of his case warranted a downward            departure by analogy to section 2C1.3 of the Guidelines.  The            defense  also submitted  one  hundred  letters  attesting  to            Grandmaison's  good deeds  and  character  at the  sentencing            hearing.   Based  on  these letters  and Grandmaison's  prior            record,  the  government agreed  that  downward  departure on            aberrant  behavior grounds was  appropriate and recommended a            reduced prison sentence of twelve months and one day.                      The district court  declined to depart  downward on            any of the three grounds advanced by Grandmaison.  The court,            citing  our decision in United States v. Catucci, 55 F.3d 15,                                    ________________________            19  n.3 (1st Cir. 1995),  as support, found  that a "downward            departure  based  on 'aberrant  behavior,'"  though generally            available  under  the Guidelines,  "was  not  available as  a            matter of law" in this case.  It concluded that Grandmaison's            conduct  did  not  fall  within the  definition  of  aberrant                                         -7-                                          7            behavior.  The  definition adopted  by the  court required  a            showing of first-offender status, behavior  inconsistent with            otherwise  good or  exemplary  character, and  spontaneity or            thoughtlessness in committing the crime of conviction.                         Next, the  court concluded  that the facts  did not            warrant  downward departure  on  the  basis of  Grandmaison's            contribution  to family, friends, and  the community.  It did            not make a specific finding on the section 2C1.3 claim raised            by  Grandmaison, but did  state that "no other  grounds . . .            advanced [by defendant or the government].  . . would justify            departure  downward."   Accordingly,  the  court adopted  the            PSR's  factual  findings  and offense  calculations  in full.            Honoring  the government's  request for  leniency, the  court            selected the lowest end of the applicable guideline range and            sentenced   Grandmaison   to  an   eighteen  month   term  of            imprisonment and two  years of supervised release.  The court            also assessed Grandmaison $50.00, as required by statute.              III.      REFUSALS TO DEPART FROM THE GUIDELINES            III.      REFUSALS TO DEPART FROM THE GUIDELINES                      Before   addressing  the  three  grounds  on  which            defendant  rests his  appeal,  we briefly  discuss the  rules            pertaining to refusals to depart from sentences prescribed by            the Guidelines.  Under  the Sentencing Reform Act, sentencing            courts are expected to apply  the Guidelines, adjust the base            offense level  as the  facts require, calculate  a sentencing            range,  and impose  a sentence  within the  identified range.                                         -8-                                          8            United States v. Jackson,  30 F.3d 199, 201 (1st  Cir. 1994);            ________________________            see  18 U.S.C.    3553(b);  Guidelines Manual  Ch. 1,  Pt. A,            ___            Introduction    4(b).  In  general, sentencing courts  are to            regard "each guideline as carving out a 'heartland,' a set of            typical   cases   embodying   the   conduct   each  guideline            describes."   Guidelines  Manual Ch.  1, Pt.  A, Introduction            comment 4(b).   Departures are warranted only where a case is            atypical  or where  the facts  are significantly  outside the            norm.  Jackson, 30 F.3d at 201.                     _______                      Decisions  to depart  generally  fall into  one  of            three  categories:  forbidden,  discouraged, and  encouraged.            Forbidden departures  are those  based, inter alia,  on race,                                                    _____ ____            sex,  national  origin,  creed,  religion,  or  socioeconomic            status.   See  Jackson,  30 F.3d  at  202; United  States  v.                      ___  _______                     __________________            Rivera, 994  F.2d 942, 948-49  (1st Cir.  1993); U.S.S.G.                ______            5H1.10, 5H1.12.  The Sentencing Commission ("Commission") has            expressly precluded  departure on these  grounds, even  where            they make a case atypical or extraordinary.  Rivera, 994 F.2d                                                         ______            at 948-49.  Discouraged departures involve factors which were            considered  by the Commission -- such as age, family ties and            responsibilities, employment record,  good works, or physical            condition -- but which present themselves to an extraordinary            degree in a  particular case.   United States  v. DeMasi,  40                                            ________________________            F.3d 1306, 1323-24 (1st Cir. 1994), cert. denied, -- U.S. --,                                                _____ ______            115 S. Ct. 947 (1995); United States v. Hilton, 946 F.2d 955,                                   _______________________                                         -9-                                          9            959  (1st Cir.  1991).   Encouraged departures,  in contrast,            involve  considerations not previously  taken into account by            the Commission.  Hilton, 946 F.2d at 959.                              ______                      Because the Commission  intended departures on  any            grounds to be the  exception rather than the rule,   Jackson,                                                                 _______            30  F.3d  at 201,  a district  court's  refusal to  depart --            upward  or downward  -- is  ordinarily not  appealable.   See                                                                      ___            United  States  v. DeCosta,  37 F.3d  5,  8 (1st  Cir. 1994);            __________________________            United States v.  Gaines, 7  F.3d 101, 105  (7th Cir.  1993);            ________________________            Hilton, 946 F.2d at  957.  The well-established rule  is that            ______            appellate  courts lack  jurisdiction to  review discretionary            district court decisions not to depart from sentences imposed            under the Guidelines.   See  United States v.  Byrd, 53  F.3d                                    ___  ______________________            144, 145 (6th Cir.  1995); United States v. Gifford,  17 F.3d                                       ________________________            462, 473 (1st Cir.  1994); United States v. Amparo,  961 F.2d                                       _______________________            288, 292 (1st Cir.), cert. denied, 506 U.S. 878 (1992).                                   _____ ______                      There  are,  however,  certain  exceptions  to this            rule.   Appellate  jurisdiction attaches, for  example, where            the record indicates that the trial court's failure to depart            was  the product of  a mistake of  law.  Gifford,  17 F.3d at                                                     _______            473; Amparo, 961 F.2d at 292; Hilton, 946 F.2d at 957.  If it                 ______                   ______            appears that a misapprehension of the applicable guideline or            miscalculation of the authority to deviate from the guideline            range prevented the court from departing downward,  appellate            review  is  appropriate.   Gifford,  17 F.3d  at  473; United                                       _______                     ______                                         -10-                                          10            States v. Pierro,  32 F.3d  611, 619 (1st  Cir. 1994),  cert.            ________________                                        _____            denied, -- U.S. --, 115 S. Ct. 919 (1995).               ______                      Our review as to  whether such a misapprehension of            judicial  authority occurred  is plenary.   United  States v.                                                        _________________            Ovalle-M rquez,  36  F.3d 212,  221  (1st  Cir. 1994),  cert.            ______________                                          _____            denied, -- U.S. --,  115 S. Ct. 1322 (1995).   Plenary review            ______            also  governs where the issue on appeal pertains to the scope            or interpretation of a guideline.  United States v. Marcello,                                               _________________________            13  F.3d 752, 755 (3d Cir. 1994)("The question of whether the            district    court   adopted    the   proper    standard   [of            interpretation]  is  a question  of  law  subject to  plenary            review.").             IV.       DISCUSSION            IV.       DISCUSSION                      The  crux  of  Grandmaison's  appeal  is  that  the            district  court  misunderstood  the  scope of  its  departure            authority.   He argues  that the court  erroneously concluded            that it was precluded from departing downward  on the grounds            of    aberrant    behavior    and   extraordinary    offender            characteristics.  Additionally, he  maintains that the  court            misapprehended  its power  to depart  downward by  analogy to            section 2C1.3 of the  Guidelines, which concerns conflicts of            interest.  See  U.S.S.G.   2C1.3.  We begin  by analyzing the                       ___            claim that the  facts of this case  permit downward departure            on  the  basis  of  aberrant  behavior  and  discuss the  two            remaining bases for appeal in turn.                                         -11-                                          11                      A.   Aberrant  Behavior as  a  Basis  for  Downward                      A.   Aberrant  Behavior as  a  Basis  for  Downward                           Departure.                           Departure                           1.   Jurisdiction  and  the  District  Court's                           1.   Jurisdiction  and  the  District  Court's                                Refusal to Depart.                                Refusal to Depart.                      The  threshold issue raised by defendant's aberrant            behavior claim is whether we  have jurisdiction to review the            district court's refusal to depart downward.  Pierro, 32 F.3d                                                          ______            at 619.   We note at  the outset, though  it does not  relate            directly to questions of jurisdiction, that the basic premise            of  defendant's aberrant  departure  claim is  correct.   The            Guidelines  permit  downward  departures  on  the  basis   of            aberrant behavior.   See, e.g.,  Catucci, 55 F.3d  at 19  n.3                                 ___  ____   _______            (citing  cases); Marcello,  13  F.3d at  760 (citing  cases);                             ________            Gifford, 17 F.3d at  475; United States v. Morales,  972 F.2d            _______                   ________________________            1007, 1011 (9th Cir. 1992), cert.  denied, -- U.S. --, 113 S.                                        _____  ______            Ct.  1665 (1993).    Such departures  fall into  the category            embracing   factors  not   previously   considered   by   the            Commission.  United States v. Premachandra, 32  F.3d 346, 349                         _____________________________            (8th  Cir. 1994);  United States  v. Fairless, 975  F.2d 664,                               __________________________            668-69 (9th Cir. 1992);  see Guidelines Manual Ch. 1,  Pt. A,                                     ___            Introduction   4(d)("The Commission, of course, has not dealt            with  the single  acts of  aberrant behavior  that still  may            justify   probation  at   higher   offense   levels   through            departures.").  And they may be employed whether the sentence            computed  involves imprisonment  or  merely probation.    See                                                                      ___                                         -12-                                          12            United  States  v.  Duerson,  25  F.3d  376,  380  (6th  Cir.            ___________________________            1994)(citing cases); Fairless, 975 F.2d at 668.                                 ________                      Consistent  with  the  departure recommendation  it            entered  at  sentencing,  the  government  acknowledges  that            aberrant   behavior  departures   are  available   under  the            Guidelines, but maintains that we lack jurisdiction to review            defendant's  claim because  the district  court's refusal  to            depart  was an  exercise of  discretion.   Defendant disputes            this, arguing  that he has cleared  his jurisdictional hurdle            because the record clearly  shows that the   district court's            refusal  to  depart stemmed  from  a  misapprehension of  its            authority  to  depart  on  aberrant behavior  grounds.    See                                                                      ___            Gifford, 17 F.3d  at 473;   Pierro, 32 F.3d  at 611.   Having            _______                     ______            reviewed the totality of  the record, as we are  obligated to            do, see United States v. Morrison, 46 F.3d 127, 130 (1st Cir.                ___ _________________________            1995)(citing United States  v. LeBlanc, 24 F.3d 340, 348 (1st                         _________________________            Cir.), cert. denied, --  U.S. --, 115 S. Ct. 250  (1994)), we                   _____ ______            find  that  the  truth   lies  somewhere  between  these  two            positions.                      The   record  reveals   that  the   district  court            understood  its  general  authority  to  depart  on  aberrant            behavior  grounds,  but   adopted  the   wrong  standard   in            determining whether defendant's behavior was "aberrant" under            the Guidelines.  The court erroneously held that  an aberrant            behavior  departure  in  this  Circuit  requires  an  initial                                         -13-                                          13            finding    of   "spontaneity"   or   a   "thoughtless   act."            Anticipating our review, the court also made it clear that it            would  have granted  the departure  requests entered  by both            defendant and the government had it not believed itself bound            to this standard:                      THE COURT:     And   so   I'm  going   to                      sentence  you at  the  lowest end  of the                      guidelines   range   that  otherwise   is                      applicable in your case.  If the Court of                      Appeals disagrees  with my interpretation                      of  aberrant behavior  and  the  case  is                      returned,  if  it   helps  the  Court  of                      Appeals in terms of imposing  sentence on                      appeal  or  resolving  the   question  on                      appeal,  assuming you  do appeal,  I will                      say  on the  record that  if I  thought I                      could  depart on  a principled  basis and                      consistent with  the law, I  would follow                      the U.S. Attorney's recommendation  and I                      would  sentence you  to  one  year --  12                      months and one day.            Based on this  statement, we  think it plain  that the  court            misunderstood its authority to  depart downward under the law            of this Circuit.                      We therefore agree  with defendant on  this initial            matter of jurisdiction.  The district court's misapprehension            of  its  departure  authority confers  jurisdiction  on  this            court.  See Gifford, 17 F.3d  at 473; Pierro, 32 F.3d at 619.                    ___ _______                   ______            The de novo  standard of  review governs our  review of  this                __ ____            aspect of defendant's claim.  See Marcello, 13 F.3d at 755.                                            ___ ________                           2.   A Definition of Aberrant Behavior.                           2.   A Definition of Aberrant Behavior.                                         -14-                                          14                      The Guidelines refer  to "single  acts of  aberrant            behavior,"  but neither  define that  phrase nor  provide any            insight into  what the  Commission might  have meant  when it            used it.  See Guidelines Manual Ch. 1, Pt. A,  Introduction                        ___            4(d);  United States v. Williams,  974 F.2d 25,  26 (5th Cir.                   _________________________            1992), cert. denied, 507 U.S. 934 (1993).   Defendant's claim                   _____ ______            presents  an issue of first  impression in this  Circuit.  We            have considered cases  involving departure requests based  on            aberrant  behavior, see,  e.g., Catucci,  55 F.3d at  19 n.3;                                ___   ____  _______            United  States  v. Pozzy,  902 F.2d  133, 137-38  (1st Cir.),            ________________________            cert.  denied, 498 U.S. 943 (1990); United States v. Russell,            _____  ______                       ________________________            870 F.2d 18, 21 (1st Cir. 1989), but have not had occasion to            define that term with specificity until now.  Catucci, supra,                                                          _______  _____            which the district court erroneously  regarded as foreclosing            departure, did not require  us to define "aberrant behavior."            In that case, we acknowledged disagreement among the circuits            as  to what type of conduct aberrant behavior entails but did            not  deem it necessary to articulate a definition for our own            Circuit because we  found that the  defendant had waived  his            departure claim.  Grandmaison's claim, in contrast, hinges on            an  articulation  of  an  aberrant behavior  standard.    We,            therefore, turn our attention to that task.                        Two cases establish what have come to be recognized            as the  outer boundaries  of the aberrant  behavior spectrum.            United States v. Russell, 870 F.2d 18 (1st Cir. 1989), stands            ________________________                                         -15-                                          15            at one  end of the  spectrum and United States  v. Carey, 895                                             _______________________            F.2d 318 (7th  Cir. 1990),  at the other.   Russell  involved                                                        _______            criminal  conduct  which  was impulsive  and  unpremeditated.            Tempted by  the prospect  of  instant wealth,  a Wells  Fargo            armored truck driver and his partner decided to keep an extra            bag of money mistakenly handed them.   The driver, who had no            prior criminal record, returned  the money almost immediately            after committing  his crime and cooperated  in the subsequent            police   investigation.    In   contrast,  Carey  involved  a                                                       _____            premeditated criminal  scheme carried out over  a long period            of  time.  There, a  trucking company president  engaged in a            check-kiting scheme  over a fifteen-month period.   Each work            day during  this period  the company president  concealed his            two over-drawn bank accounts by having his bookkeeper prepare            checks to cover the fund shortage.  He signed each  check and            frequently deposited them himself.   The Seventh Circuit held            that this behavior was  not "aberrant."  895 F.2d  at 324-25.            Uncertainty about the reason for the district court's refusal            to depart precluded  this court from  deciding that issue  in            Russell.             _______                      Circuit  courts  are  divided over  where  criminal            conduct  must  fall  on  the aberrant  behavior  spectrum  to            justify downward  departure.   As we  noted in  Catucci, some                                                            _______            have  adopted an  expansive  view of  what aberrant  behavior            means  in  the  context  of the  Guidelines,  whereas  others                                         -16-                                          16            require  a  spontaneous  or   thoughtless  act  of  the  sort            committed by the defendant in Russell.  The Seventh Circuit's                                          _______            decision in Carey provided the  moorings for the latter group                        _____            of circuits.   The Carey court  held that "[a] single  act of                               _____            aberrant behavior . . .  generally contemplates a spontaneous            and  seemingly thoughtless act rather than  one which was the            result of  substantial planning  because an act  which occurs            suddenly and  is  not the  result of  a continued  reflective            process is one for  which the defendant may be  arguably less            accountable."   895 F.2d at  325.  The  Seventh Circuit later            reinforced  this  tight interpretation  in  United States  v.                                                        _________________            Andruska, 964  F.2d 640, 645-46  (7th Cir. 1992),  a decision            ________            reversing a district court's decision to depart downward in a            case  involving  a  woman  found  guilty  of  concealing  her            fugitive paramour from arrest.                          The Third, Fourth, Fifth, and Eighth  Circuits have            embraced  the Seventh  Circuit's  view of  aberrant behavior.            For example, in Marcello,  supra, the Third Circuit explained                            ________   _____            that "there must be  some element of abnormal  or exceptional            behavior"  before adopting the  Seventh Circuit's spontaneity            requirement and  reversing the  district court's  decision to            depart downward.  13 F.3d at 761.  The Marcello defendant was                                                   ________            an attorney who, on seven separate occasions, structured bank            deposits to avoid tax  reporting requirements in violation of                                         -17-                                          17            31 U.S.C.    5322(a),  5324(3).  He committed  these offenses            over the span of seven consecutive working days.                        Cases  involving  extensive  planning  or  repeated            criminal acts  received  similar  treatment  in  the  Fourth,            Fifth, and Eighth Circuits.   In United States v.  Glick, 946                                             _______________________            F.2d  335, 338 (4th Cir. 1991), the Fourth Circuit reversed a            downward departure  decision after noting that  the defendant            transported  letters containing  stolen trade  secrets across            state lines  on several occasions.   In Williams,  supra, the                                                    ________   _____            Fifth Circuit  affirmed a district court's  refusal to depart            downward  because  the  robbery  executed  by  the  defendant            involved planning.  Similarly,  the Eighth Circuit found that            a bank fraud scheme carried out over a one year period lacked            the  level of  spontaneity  and  thoughtlessness required  by            cases such as Carey.  See United States v. Garlich,  951 F.2d                          _____   ___ ________________________            161, 164 (8th Cir.  1991); see also Premachandra, 32  F.3d at                                       ___ ____ ____________            349.                         In  contrast,  the Ninth  and  Tenth Circuits  have            eschewed any focus on spontaneity and thoughtlessness, opting            instead  for a broad view of aberrant behavior.  They require            reviewing courts to employ  the totality of the circumstances            test in making aberrant  behavior determinations.  Under this            test, courts  consider a variety of  mitigating factors, such            as  pecuniary gain to the defendant, prior good deeds, and an            effort to  mitigate the  effects of  the crime in  evaluating                                         -18-                                          18            whether   a   defendant's  conduct   was  unusual   or,  more            specifically, "aberrant."  See, e.g., United States v. Takai,                                       ___  ____  ______________________            941 F.2d 738, 741 (9th Cir. 1991).                        In Takai, the  Ninth Circuit affirmed  the district                         _____            court's decision  to depart  downward after finding  that the            defendants who  pled guilty to  bribery of and  conspiracy to            bribe  an  Immigration and  Naturalization  Service official,            inter  alia,  received no  pecuniary  gain,  had no  criminal            _____  ____            record, and had  been influenced  by a government  agent.   A            convergence  of  factors,  such  as  the  defendant's   manic            depression,  suicidal  tendencies,  and recent  unemployment,            also led  the Ninth Circuit  to affirm downward  departure in            Fairless, supra, an armed robbery case.  Similarly, in United            ________  _____                                        ______            States v. Pena, 930 F.2d 1486,  1494 (10th Cir. 1991), a drug            ______________            possession  case,  the  Tenth  Circuit   held  that  downward            departure  was appropriate  because the  defendant's behavior            was  an   aberration  from  her  usual   conduct,  which  was            highlighted  by  long-term  employment,  no  abuse  or  prior            distribution of controlled  substances, and economic  support            of her family.                       We are persuaded, after reviewing the cases decided            by our colleagues in other circuits, that the approach  taken            by the Ninth and Tenth  Circuits achieves the balance between            uniformity in  sentencing and district  court discretion  the            Guidelines  were intended to strike.  See Jackson, 30 F.3d at                                                  ___ _______                                         -19-                                          19            201-02.  We, thus, hold that  determinations about whether an            offense constitutes a single  act of aberrant behavior should            be  made  by reviewing  the  totality  of the  circumstances.            District court judges may  consider, inter alia, factors such                                                 _____ ____            as pecuniary  gain to  the defendant, charitable  activities,            prior  good deeds, and efforts to mitigate the effects of the            crime in  deciding whether a defendant's  conduct is aberrant            in  terms  of other  crimes.   See  DeMasi, 40  F.3d  at 1324                                           ___  ______            (departure determination should be  made by comparing case to            other  cases  involving  the  stated  reason  for departure).            Spontaneity and thoughtlessness may also be among the factors            considered, though they are not prerequisites for departure.                      That  aberrant behavior departures are available to            first  offenders whose  course of  criminal conduct  involves            more than  one criminal act is implicit  in our holding.  See                                                                      ___            Takai, 941 F.2d at 743.  We think the Commission intended the            _____            word "single" to refer to the crime  committed and not to the            various  acts involved.  As a result, we read the Guidelines'            reference to  "single acts  of aberrant behavior"  to include            multiple acts leading up to  the commission of a crime.   See                                                                      ___            id.    Any other  reading  would  produce an  absurd  result.            ___            District courts would  be reduced to  counting the number  of            acts  involved in  the  commission of  a  crime to  determine            whether  departure is  warranted.   Moreover,  the  practical            effect of such  an interpretation would  be to make  aberrant                                         -20-                                          20            behavior  departures virtually unavailable to most defendants            because  almost every  crime  involves a  series of  criminal            acts.  Even the  Russell defendant, whose spontaneous actions                             _______            are  widely  regarded  as   a  classic  example  of  aberrant            behavior, could be  understood to have committed  more than a            single  act of  aberrant  behavior.   He  conspired with  his            partner to take money  from the armored truck he  drove; took            the money;  and then  kept the  money for  a short period  of            time.    Thus,  we  think  that  focusing  on  the  crime  of            conviction instead of the criminal acts committed in carrying            out that crimebest comports with what theCommission intended.                      The approach  we now  adopt does not  unnecessarily            expand opportunities for departure under the Guidelines.  The            totality of the circumstances test, though admittedly broader            than the  spontaneity test  employed in Carey,  is consistent                                                    _____            with the Commission's intention  to limit applications of the            aberrant behavior principle.  See Andruska, 964  F.2d at 645.                                          ___ ________            Concerns  that it  ensures  every first  offender a  downward            departure  from their Guidelines-imposed sentence are without            foundation.   As the Ninth Circuit explained in United States                                                            _____________            v. Dickey, 924  F.2d 836 (9th Cir.  1991), "aberrant behavior            _________            and first offense are not synonymous."   924 F.2d at 838; see                                                                      ___            Glick, 946 F.2d at 338.   Without more, first-offender status            _____            is not enough to warrant downward departure.                                             -21-                                          21                      District  courts are  not, however,  precluded from            considering   first-offender  status  as   a  factor  in  the            departure  calculus.    Departure-phase  consideration  of  a            defendant's criminal  record  does  not,  we  think,  wrongly            duplicate   the  calculations  involved   in  establishing  a            defendant's criminal  history category under  the Guidelines.            First, as we just  noted, it is  obviously not the case  that            every  defendant  in  Criminal  History Category  I  will  be            qualified for  an aberrant behavior departure.  There will be            individuals  in  that category  who,  for  instance, are  not            entitled to departure because  they were convicted of several            unrelated offenses  or who have been  regular participants in            elaborate  criminal enterprises.   See  Morales, 972  F.2d at                                               ___  _______            1011.  Second,  to the extent that  considering a defendant's            criminal record  at both  the criminal history  and departure            stages amounts  to  double counting,  the Guidelines  clearly            permit  it.   But  see  Marcello, 13  F.3d at  755  (3d Cir.)                          ___  ___  ________            (concluding  that  the   Guidelines  prohibit  considering  a            defendant's criminal record at  both the criminal history and            departure stages).   The  Guidelines explain that  "the court            may  depart .  . .  even though the  reason for  departure is            taken  into consideration . . . if the court determines that,            in  light  of  unusual  circumstances,  the  guideline  level            attached to that factor is inadequate."  U.S.S.G.   5K2.0.                                           -22-                                          22                      The  question  now   becomes  whether   defendant's            conduct falls within the ambit of aberrant behavior under the            standard  we have articulated.  We leave this to the district            court's discretion.  It occupies the best vantage point  from            which to  make the decision.   Rivera, 994 F.2d at  950.  We,                                           ______            therefore,  vacate  defendant's  sentence  and  remand    for            resentencing.                        B.   Extraordinary  Offender  Characteristics as  a                      B.   Extraordinary  Offender  Characteristics as  a                           Basis for Downward Departure.                           Basis for Downward Departure.                      Defendant's second  argument on appeal is  that the            district court  misunderstood its authority to  depart on the            ground of  his extraordinary characteristics.   We agree that            extraordinary   characteristics   such   as  unusual   family            obligations  or  exceptional  charitable activities  may,  in            certain   circumstances,  provide  a  basis  for  a  downward            departure.   See, e.g.,  United States v.  Haverstat, 22 F.3d                         ___  ____   ___________________________            790, 795-96 (8th Cir. 1994), cert. denied, -- U.S. --, 116 S.                                         _____ ______            Ct. 671 (1995); United  States v. Canoy, 38 F.3d  893, 905-07                            _______________________            (7th Cir. 1994); Rivera, 994 F.2d at 948-53; United States v.                             ______                      ________________            Sclamo,  997 F.2d 970, 973-74 (1st Cir. 1993); Pena, 930 F.2d            ______                                         ____            at 1495; United States v. Big Crow, 898 F.2d 1326,  1332 (8th                     _________________________            Cir.  1990).  We  disagree, however, that  the district court            misunderstood its authority to depart.  It appears clear that            the  court  found  that defendant's  family  obligations  and            charitable  activities,  though   noteworthy,  were   neither            extraordinary nor exceptional.                                         -23-                                          23                      The   best  indicator   of  the   district  court's            unwillingness   to   depart   downward   on   the  basis   of            extraordinary characteristics is the stark difference between            the  court's sentencing-hearing statements about departure on            this basis and  on the  grounds of aberrant  behavior.   When            asked  to  make  a finding  about  defendant's  extraordinary            offender characteristics claim, the district court stated:                      THE COURT:  To the extent you've asked me                      to  depart based  on that,  I  would find                      that  those, extraordinary  commitment to                      family    and   extraordinary    offender                      characteristics, don't rise to  the level                      that would justify a departure out of the                      heartland of the guidelines .  . .  So to                      the  extent I  have  discretion  in  that                      regard, I  exercise my discretion  not to                      depart downward.            These  statements make  it  plain that  the district  court's            refusal  to depart  stemmed from  an exercise  of discretion.            See  DeCosta, 37  F.3d at  8 ("[we  suggest] . .  .[t]hat the            ___  _______            district  court  say  .  .  .  that  it  has  considered  the            mitigating factors urged but  does not find them sufficiently            unusual  to warrant a departure in the  case at hand.").  And            even   if  we  were  to  assume  that  these  statements  are            ambiguous, that ambiguity, without  more, would not be enough            to make  the district  court's refusal to  depart appealable.            Morrison, 46 F.3d  at 132;  see United States  v. Romero,  32            ________                    ___ ________________________            F.3d 641, 654 (1st Cir. 1994).  Our review of this matter is,            thus, at an end.  We lack jurisdiction to review the district                                         -24-                                          24            court's  refusal   to  depart   downward  on  the   basis  of            extraordinary offender  characteristics.   Byrd,  53 F.3d  at                                                       ____            145; Gifford, 17 F.3d at 473.                 _______                       C.  The Heartland of Section 2C1.7 of the                       C.  The Heartland of Section 2C1.7 of the                           Guidelines.                           Guidelines.                      Defendant's final argument  on appeal concerns  the            scope of  section 2C1.7 of the  Guidelines, which corresponds            to 18 U.S.C.    1341,  1346, the mail fraud statute  to which            he pled  guilty.   Without disputing section  2C1.7's general            applicability to  his conduct,  defendant maintains  that the            district  court  misapprehended  its authority  to  impose  a            shorter prison term by departing downward, by analogy, to the            sentence  prescribed under section  2C1.3 of  the Guidelines.            For individuals in Criminal History Category I, section 2C1.3            -- which concerns conflicts of interest by present and former            federal officers and employees  -- carries a sentencing range            of  zero to six months.   Section 2C1.7  imposes a sentencing            range of  eighteen to  twenty-four months for  individuals in            the same  category.   See U.S.S.G.    2C1.7  (Fraud Involving                                  ___            Deprivation of the Intangible Right to the Honest Services of            Public Officials); U.S.S.G.   2C1.3 (Conflict of Interest).                        Though  cast as  a claim  relating to  the district            court's refusal to depart, defendant's argument, at its core,            primarily  concerns the  heartland  of section  2C1.7 of  the            Guidelines.   Defendant essentially  argues that  his conduct            falls outside the  heartland of section 2C1.7  and within the                                         -25-                                          25            scope  of  section  2C1.3  because it  primarily  involved  a            conflict   of  interest,  not   fraud.     Because  questions            concerning  the  scope and  meaning  of  a guideline,  unlike            questions pertaining to the facts which lead a district court            to render  its departure decision, are quintessentially legal            in nature, see LeBlanc,  24 F.3d at 345, Rivera, 994  F.2d at                       ___ _______                   ______            952,  we have jurisdiction to  review defendant's claim.  Our            review is  plenary,  as it  is  whenever a  district  court's            decision "reflect[s] a determination of the purpose of, or an            interpretation of  the language in, a  guideline or statute."            LeBlanc, 24 F.3d  at 344;  see United States  v. Rosales,  19            _______                    ___ _________________________            F.3d 763, 769 (1st Cir. 1994).                      To determine whether defendant's  conduct is of the            sort   which   generally   falls   within   section   2C1.7's            "heartland," we  must determine the nature  of the underlying            crime of mail fraud.  See, e.g., LeBlanc, 24 F.3d at 346.  We                                  ___  ____  _______            look in part to the language of the mail fraud statute and to            the  legislative  history  which accompanies  it.    Id.   In                                                                 ___            relevant part, section 1341 provides:                      Whoever, having devised  or intending  to                      devise any scheme or artifice to defraud,                      or  for obtaining  money  or property  by                      means of false  or fraudulent  pretenses,                      representations,  or promises  . .  . for                      the purpose  of executing such  scheme or                      artifice  or attempting  so to  do, [uses                      the mail system or  causes it to be used]                      shall  be  fined   under  this  title  or                      imprisoned  not more than  five years, or                      both.    If   the  violation  affects   a                      financial institution,  such person shall                                         -26-                                          26                      be  fined not  more  than  $1,000,000  or                      imprisoned  not more  than  30 years,  or                      both.                      Congress  enacted  this  statute  in  1872,  as  "a            general  proscription  against using  the  mails to  initiate            correspondence in  furtherance of 'any scheme  or artifice to            defraud.'"   McNally v. United States, 483 U.S. 350, 355, 359                         ________________________            (1987).    The  legislative history  suggests  that  Congress            intended  the  mail  fraud  statute to  protect  people  from            "schemes to deprive them of their money or property."  Id. at                                                                   ___            356.  Before 1987,  section 1341 was read as  a broad shield,            protecting individuals  against schemes  to  deprive them  of            intangible, as  well as tangible,  property.  Then,  in 1987,            the  Supreme  Court held  that  the statute  did  not embrace            intangible rights.  McNally held  that the mail fraud statute                                _______            does  not prohibit  schemes to  defraud individuals  of their            intangible rights to  the honest services of government.  483            U.S.  at 359-60; see Carpenter v. United States, 489 U.S. 19,                             ___ __________________________            25 (1987).                      In 1988,  Congress enacted section 1346, the honest            services amendment,  to reverse the Supreme  Court's decision            in  McNally.  United States  v. Bucuvalas, 970  F.2d 937, 942                _______   ___________________________            n.9 (1st Cir. 1992);  United States v. Alkins, 925  F.2d 541,                                  _______________________            548 (2d  Cir. 1991); McEvoy  Travel Bureau, Inc.  v. Heritage                                 ________________________________________            Travel,  Inc., 904  F.2d 786,  790 (1st  Cir. 1990);  see 134            _____________                                         ___            Cong.  Rec. S17360-02 (daily ed. November 10, 1988)(Judiciary                                         -27-                                          27            Committee analysis)("This section  overturns the decision  in            McNally v. United States  . . . Under [this]  amendment, [the            ________________________            mail and wire fraud] statutes will protect . . . the right of            the  public to  the honest  services of  public officials.").            Section  1346  became  effective  on November  18,  1988  and            provides:                      For  the purposes  of  this chapter,  the                      term  "scheme  or  artifice  to  defraud"                      includes  a scheme or artifice to deprive                      another of the intangible right of honest                      services.            See Anti-Drug Abuse Act  of 1988, Pub. L. No.  100-690, Title            ___            VII,    7603 (a), 102  Stat. 4508 (1988).   It  restores mail            fraud convictions to their pre-McNally status by allowing the                                           _______            government   to   predicate   mail   fraud   prosecutions  on            deprivations  of  the intangible  right  of  honest services.            United States  v. Bryan,  58 F.3d  933, 940  n.  1 (4th  Cir.            _______________________            1995); Waymer, 55 F.3d  at 568 n.3; see 135 Cong.  Rec. S1063                   ______                       ___            (daily ed.  February 2, 1989)(statement  of Sen. Biden).   An            offense under  section 1346 is established  when the evidence            demonstrates that the use of the mail system played a role in            executing  the   deprivation  of   the  honest   services  of            government.   Schmuck v.  United  States, 489  U.S. 705,  710                          __________________________            (1989)(citing Kann v. United States, 323 U.S. 88, 95 (1944));                          _____________________            see United States v. Yefsky, 994 F.2d 885, 890, 892 (1st Cir.            ___ _______________________                                         -28-                                          28            1993); United States v.  Dray, 901 F.2d 1132, 1137  (1st Cir.                   ______________________            1990), cert. denied, 498 U.S. 895 (1990).                     _____ ______                      Section  1346  includes  cases  in  which  the mail            system  plays an  integral  role  in  the scheme  to  defraud            citizenry of  the honest services  of government, as  well as            schemes in which use of the mail system is only incidental to            the larger plan.  Id. at 710-11; see United States v. Morrow,                              ___            ___ _______________________            39 F.3d 1228, 1236-37  (1st Cir. 1994), cert. denied,  115 S.                                                    _____ ______            Ct. 1421 (1995) (mail fraud generally includes incidental use            of  the mails  in furtherance  of a  scheme to  defraud). The            Eleventh  Circuit recently affirmed  a defendant's conviction            on twenty-two counts of mail  fraud even though the defendant            only  used the  mail  system  to  receive payments  from  his            partner  in a money laundering the scheme.  In Waymer, supra,                                                           ______  _____            the  court rejected  claims  that section  1346 is  vague and            overbroad  and reiterated the  Supreme Court's  conclusion in            Schmuck, supra, that "[i]t is  sufficient for the mailing  to            _______  _____            be 'incident to  an essential part of the  scheme' or 'a step            in the  plot.'"  55 F.3d  at 569; see also  Badders v. United                                              ___ ____  _________________            States,  240  U.S.  391,  393-94  (1916).    In  Waymer,  the            ______                                           ______            defendant  was an  elected  member of  the  Atlanta Board  of            Education who failed to  fully disclose his relationship with            the   contractor  who  provided   pest  control  services  to            Atlanta's public  schools.   Unbeknownst to the  other school            board members, the defendant  received fifteen percent of all                                         -29-                                          29            the proceeds from the  contractor's contracts with the school            system.                       Courts have read section 1346 to include efforts by            public  officials and  employees to conceal  their fraudulent            acts  from  the  public  "by means  of  false  or  fraudulent            pretenses,  representations,  promises,  or  other  deceptive            conduct."  See McEvoy Travel, 904 F.2d at 791.  For  example,                       ___ _____________            the Fourth Circuit recently upheld the conviction of a public            official on such grounds  in United States v. Bryan,  58 F.3d                                         ______________________            933 (4th Cir. 1995).  In that case, the Director  of the West            Virginia  Lottery orchestrated  a scheme whereby  he secretly            ensured that lottery contracts and contract bids were awarded            to companies with whom  he had a personal relationship.   The            Fourth  Circuit  held  that   section  1346  applied  to  the            defendant's  conduct.  58 F.3d at  939-41.  Similarly, United                                                                   ______            States  v.  Alkins, 925  F.2d 541  (2d  Cir. 1991),  a Second            __________________            Circuit case,  upheld the section  1346-based convictions  of            six Department  of  Motor  Vehicles  employees  because  they            failed to  disclose their fraudulent activities to department            officials.   925 F.2d  at 549.   The defendants  in that case            secretly  processed  improperly  documented applications  for            driver's   licenses,   identification   cards,  and   vehicle            registrations in return for monetary disbursements.                        We hold that the  conduct to which Grandmaison pled            guilty falls within the range of conduct Congress intended 18                                         -30-                                          30            U.S.C.     1341, 1346 to encompass  and, concomitantly, rests            squarely within the heartland  of section 2C1.7.  Grandmaison            continued  to  lobby  Board   members  on  behalf  of  Eckman            Construction after his recusal  from the SSCC and JSSBC.   He            secretly   delivered  gratuities  to   Magee,  Ackerman,  and            Kuchinski to secure favorable  votes on Eckman Construction's            bid.   He  distributed informational  materials about  Eckman            Construction  to  Magee and  Ackerman without  disclosing his            actions to other Board members.  And he caused the Elm Street            Project contract to  be sent to  Eckman Construction via  the            mail  system.  Though  there is no  evidence that Grandmaison            received direct monetary benefit  from his actions, there can            be little doubt that  under cases such as Waymer,  Bryan, and                                                      ______   _____            Alkins  he deprived  the  citizens of  Nashua  of the  honest            ______            services of their government under section 1346.  This is not            an unusual case.                      Defendant maintains that he is mainly guilty of not            revealing  a conflict of interest.   To be  sure, his conduct            involved  some  element of  such a  violation.   It  does not            follow  from this, however,  that he should  not be sentenced            pursuant to section 2C1.7, the guideline corresponding to the            mail fraud                                          -31-                                          31            statute to which  he pled  guilty.  First,  we are  convinced            that 18 U.S.C.     1341, 1346 encompasses crimes of  the sort            committed by defendant.  Second, even if the applicability of            section 1346 were  suspect, we  are not at  all certain  that            downward  departure  to  the sentence  prescribed  by section            2C1.3  would be  appropriate.   This  is principally  because            section 2C1.3  linguistically does not apply  to defendant or            his  conduct;  that  guideline  only addresses  conflicts  of            interests by present or former federal officers and employees            and, therefore, does not reach state  or local officials such            as defendant.   In the final analysis, defendant  has managed            to persuade us of only one  thing: that had he been a federal            employee or official, the government might have been able  to            charge  him  with violating  other statutes  as  well.    See                                                                      ___            U.S.S.G.   2C1.3  (listing statutory provisions corresponding            to  that guideline).  Because  this argument clearly does not            merit the  application of a lower  sentencing range defendant            seeks,  we  affirm the  district  court's  refusal to  depart            downward by analogy to section 2C1.3.              V.        CONCLUSION            V.        CONCLUSION                      For the foregoing  reasons, we vacate Grandmaison's            sentence  and  remand  for  resentencing under  the  aberrant            behavior  standard formulated in  this opinion.   Defendant's            appeal   for  downward   departure  on   the  basis   of  his            extraordinary  offender characteristics is dismissed for lack                                         -32-                                          32            of jurisdiction.  And we affirm  the district court's refusal            to depart  downward  by  analogy  to  section  2C1.3  of  the            Guidelines.            It is so ordered.              It is so ordered.              ________________                                         -33-                                          33
