

November 22, 1994 UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT
                                         

No. 93-2120

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                     WILLIAM J. DeCOSTA,

                    Defendant, Appellant.

                                         

                         ERRATA SHEET                                     ERRATA SHEET

The opinion  of this court  issued on  October 7, 1994,  is hereby

amended as follows:

Delete the  last two sentences of the first full paragraph on page

ten  which begins with "As  for the .  . . ." and  ends with "is worth

pondering."  and   replace  the  sentences  with   the  following  two

sentences:

     "As for  the government,  zeal is ordinarily  to be
     admired  in a  prosector  but it  can be  overdone.
     Accordingly, we  are comforted to  learn that prior
     to prosecution  DeCosta was offered  an opportunity
     to participate in the pretrial  diversion program--
     even though for reasons not developed in the record
     no agreement was ultimately reached."

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 93-2120

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                     WILLIAM J. DeCOSTA,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Mark L. Wolf, U.S. District Judge]                                                              

                                         

                            Before

                     Selya, Circuit Judge,                                                     

                Bownes, Senior Circuit Judge,                                                        

                  and Boudin, Circuit Judge.                                                       

                                         

Frank P. Marchetti, by Appointment of the Court, for appellant.                              
Nadine  Pellegrini, Assistant  United States  Attorney,  with whom                              
Donald K. Stern,  United States Attorney, was on brief  for the United                       
States. 

                                         

                       October 7, 1994
                                         

     BOUDIN,  Circuit  Judge.   As part  of a  postal service                                        

"sting," postal inspectors placed an advertisement concerning

child pornography  in a  local publication.   William DeCosta

was  foolish enough  to respond.   In correspondence  with an

undercover postal inspector, DeCosta expressed an interest in

receiving such material.  In February 1989, DeCosta mailed to

the undercover  agent four photographs depicting  young girls

in sexually explicit poses.  Thereafter he was indicted.  

     In December 1992, DeCosta  pleaded guilty to a violation

of 18 U.S.C.    2252(a)(2)  which relates to  the mailing  of

child pornography.   Prior  to the plea,  the government  (in

connection  with  DeCosta's  release conditions)  urged  that

DeCosta  might   be  dangerous  to  children,   offering  the

testimony of  a psychologist who  had examined DeCosta.   The

district  judge had  DeCosta examined  by another  expert and

accepted that expert's conclusion  that DeCosta posed no such

danger.  

     The  guideline sentence for DeCosta's offense, given his

lack  of  any   criminal  history,  was   12  to  18   months

imprisonment.   U.S.S.G.   2G2.2 (1989).  (The district court

utilized  the  November  1989  manual  because  a  subsequent

increase  in the  guideline  range  posed  an ex  post  facto                                                                         

problem;  all  citations  below  are  to  the  1989  manual.)

Between the  time  of  the  guilty plea  and  the  sentencing

hearing on August 12,  1993, the district court energetically

                             -2-                                         -2-

explored   the   options   available,   including   in-prison

treatment.     DeCosta  himself   was  receiving  out-patient

counseling at the time of the sentencing hearing.  At     the

sentencing  hearing on  August 12,  1993, the  district judge

asked the prosecutor whether the U.S. Attorney's office would

consider an alternative to  imprisonment; it appears from the

transcript that there had  been earlier, unsuccessful efforts

along this line.   The  prosecutor said that  the matter  had

been discussed in her office and that pre-trial diversion was

not agreeable to  the government.   In  fact, the  prosecutor

urged imprisonment for 18  months, the maximum period allowed

under the guidelines.

     At the hearing, there was testimony from the expert  who

had  previously  concluded  that DeCosta  posed  no  physical

danger  to anyone.    DeCosta's attorney  urged the  court to

impose probation but  provided no explanation  as to how  the

court might be  empowered to do  so.   Counsel did advert  to

DeCosta's present out-patient treatment, his somewhat limited

intelligence  and the fact that he had not taken the pictures

he had mailed.  It was also pointed out that although DeCosta

had  lost his  job  as a  security  guard, he  had  found new

employment to support his family.

     After    describing   DeCosta's    current   out-patient

treatment, his  counsel said that he  (DeCosta) "has improved

tremendously" in  his attitude and outlook.   DeCosta's wife,

                             -3-                                         -3-

said counsel, wants him home.  When defense counsel said that

the court "should look further, to see if there's some way to

give this man probation," the district court pointed out that

it  had urged counsel to help it to distinguish several cases

that appeared to limit the court's ability to depart from the

guidelines.   The court then said  that DeCosta could receive

treatment at the  Buttner, North Carolina, facility if the 12

month  minimum  sentence  were  imposed.   DeCosta's  counsel

replied:

          I think the  repercussions of that  would
          be far greater than  what we've had up to
          this point, where the children [DeCosta's
          children] have suffered,  the family  has
          suffered,  the  publicity has  hurt them.
          He's   lost  his  job,   his  income  has
          suffered.   Now,  the family  will be  on
          welfare  and I  don't think  they'll ever
          get back together, if  this man goes away
          for a year.  . . . And that would be even
          sadder than what we've got today.

     After  a  further colloquy,  including  the prosecutor's

rejection of pretrial diversion, the court sentenced  DeCosta

to  one  year  of  imprisonment, three  years  of  supervised

release including mental health  counseling as directed,  and

the mandatory $50 special  assessment.  The court recommended

to  the  Bureau of  Prisons that  the  sentence be  served at

Buttner with appropriate treatment.  Thereafter, the district

court stayed the sentence pending this appeal.

     On  appeal,  DeCosta's  central  argument  concerns  the

district court  failure to  depart from the  guidelines range

                             -4-                                         -4-

and sentence DeCosta to probation or  something less than one

year.   It is settled law that a sentencing court is entitled

to  depart  in  cases   that  fall  outside  the  "heartland"

contemplated by the guidelines.  See United States v. Rivera,                                                                        

994 F.2d 942, 946-47 (1st Cir.  1993).  Both the statute  and

the guidelines  permit departures  where the court  finds "an

aggravating or  mitigating circumstance  of a  kind, or to  a

degree  not  adequately  taken  into  consideration"  by  the

Sentencing  Commission  "that  should  result  in a  sentence

different from that described" in the  guidelines.  18 U.S.C.

  3553(b); U.S.S.G.   5K2.0.

     Although the decision not to depart is ordinarily within

the  district court's  discretion, DeCosta  asserts that  the

district court erred in concluding  that it had no discretion

to depart.  It quotes in part the district judge's comment at

the hearing:

               But unless I am persuaded  that this
          case  is  extraordinary  [in]  kind  o[r]
          degree and a  departure is justified, I'm
          required  to give the  defendant at least
          12 months in prison.  Anticipating that I
          would  not have the  discretion to give a
          probationary  sentence, I've  talked with
          the Bureau  of Prisons, as  well as  with
          Pretrial Services and Probation.

DeCosta's  brief  further argues  that  the  court could  and

should  have   departed   in  light   of  DeCosta's   limited

intelligence,  his  family   and  employment  situation,  his

cooperation   in  seeking   counseling,  his   acceptance  of

                             -5-                                         -5-

responsibility,  and  the lack  of  danger that  he  posed to

others.

     The government has  responded with a brief  of more than

twice the length of that filed by DeCosta.  The brief argues,

with extensive  citations, that  DeCosta failed to  raise the

departure  issue below and has  therefore waived it.   If not

waived, says the government, the district court's sentence is

in  any case within  the guideline  range and  therefore non-

appealable.  Finally, if the refusal to depart is appealable,

the  government  says  that  none  of  the  family  or  other

circumstances urged  are extraordinary  enough  to provide  a

reasonable basis  for departure; and the  brief analyzes each

of  these grounds.  It is not  easy to think of anything else

that might have been argued in defense of the sentence.

     We start with the  government's claim that the departure

issue has been waived.  There  is no doubt that the  district

court did consider whether to  depart.  The court  emphasized

DeCosta's lack of dangerousness and went so far as to ask the

parties  to  brief  the  question whether  United  States  v.                                                                     

Studley, 907 F.2d 254  (1st Cir. 1990), and United  States v.                                                                      

Deane,  907 F.2d 11 (1st Cir. 1990), precluded a departure on                 

this ground.  Apparently, DeCosta's counsel found no basis to

distinguish Studley or  Deane and on appeal  agrees that lack                                         

of  dangerousness alone would not be  a permissible basis for

departure.

                             -6-                                         -6-

     It  is far  less clear  that the  issue of  departure on

other   grounds  was  explicitly   raised  at   the  hearing.

DeCosta's counsel,  as the government points  out, never used

the  term, and the factors that he emphasized at the hearing,

apart from lack of danger, were for the most part relevant to

the selection of a  sentence within the guideline range.   On

the  other  hand, DeCosta's  counsel  certainly  did ask  for

probation, a  result  that could  only be  reached through  a

departure, and  urged the same factors now pressed as grounds

for departure.  The  district court made clear that  it would

happily depart  if  it had  the  authority to  do  so.     On

balance,  we are  not inclined  to resolve  this case  on the

basis of waiver.

     The  government's  next  argument,  that   the  district

court's decision is unreviewable, presents  quite a different

problem.   The  discretionary decision  not to  depart  is an

action ordinarily not subject  to appellate review, but there

are  certain exceptions. These exceptions include cases where

the sentencing court declines to depart because of "a mistake

of law," such as  "the sentencing court's mistaken impression

that  it  lacked  the  legal authority  to  deviate"  or  its

"misapprehension of the rules governing  departures."  United                                                                         

States v. Gifford, 17 F.3d  462, 473 (1st Cir. 1994).   For a                             

thorough  discussion  of the  matter,  see  United States  v.                                                                     

Pierro, No. 93-1313 (1st Cir. July 27, 1994).                    

                             -7-                                         -7-

     Difficulty  commonly arises where mitigating factors are

urged as a basis for departure, and the district court simply

asserts that it "cannot" or "is without authority" to depart.

Terse phrases  like these are common, for  the district court

is not required to  give reasons for refusing to  depart, but

they may create an  ambiguity.  A district court  might think

that it "cannot" depart based on the factors urged because it

misunderstands the guidelines or the precedents; for example,

it  might think that a mitigating factor is a forbidden basis

for  departure  when  it   is  actually  a  permissible  one.

Conversely,  a  district court  might  say  that it  "cannot"

depart  where it means only  that it has  weighed the factors

urged  and found that they  do not distinguish  the case from

the mine run of cases.

     Here, we have no reason to think that the district court

made any mistake  of law in construing the governing statute,

the  guidelines  or  pertinent  precedent.    Defense counsel

implies that the district  court must have underestimated its

authority to depart  on grounds  other than  lack of  danger,

because  the court failed to  discuss the other  factors as a

possible basis  for departure.   But  the obvious  reason for

this  "failure" is  that  defense counsel  at the  sentencing

hearing never explicitly urged these other factors as a basis

for departure.

                             -8-                                         -8-

     DeCosta  is  also not  helped  by  the district  judge's

comment  that  "I would  not have  the  discretion to  give a

probationary sentence . .  . ."  Context often  explains just

what the court  meant by such  remarks and it  does so  here.

The  district  judge's  immediately  prior  sentence,  quoted                                                      

above, makes plain that the district judge meant only that he

couldnot findthecase extraordinaryenoughto justifyadeparture.

     In this case, it  is easy to conclude  that there is  no

evident or even arguable error of law that  would allow us to

review the refusal to depart.   But difficult cases--at least

as to reviewability--will remain wherever  mitigating factors

are explicitly urged  as the  basis for a  departure and  the

district court says only that it "cannot" or "lacks power" to

depart.  Sometimes,  as here,  it will be  easy to  determine

just  what the district court meant.  But because the problem

is a recurring  one, we have a suggestion:  that the district

court say--where this is the case--that it has considered the

mitigating factors urged but  does not find them sufficiently

unusual to warrant a departure in the case at hand.

     Of course,  in  some cases  this  formula would  not  be

proper.   Here, for example, we fully agree with the district

court that  Studly and  Deane  mean that  the district  court                                         

would have had no authority  to depart simply because DeCosta

was not dangerous.  Similarly, if a district court desired to

depart  but  thought   this  course  forbidden   by  explicit

                             -9-                                         -9-

guideline language, one  would expect the  court to cast  its

refusal  in these terms.   But where  permissible factors are

urged and the court simply thinks that there is not enough to

distinguish the case  from the ordinary,  a sentence to  this

effect would be helpful.

     Having found  no legal error,  we need not  consider the

government's   final,   alternative    argument   that    the

circumstances  in this case  are not  so extraordinary  as to

provide  a  basis  for   departure.    Still,  it  would   be

unfortunate  to leave  the  impression that  there exists  an

obvious  basis for  departure  that we  are ignoring  because

defense  counsel  failed to  frame  the  legal issue  in  the

district court.   No  record  evidence is  present here  that

"reduced mental capacity contributed to the commission of the

offense," U.S.S.G.    5K2.13,  and the guideline  language on

family circumstances and employment is not helpful to DeCosta

in this case.  Id.    5H1.5, 5H1.6.                              

     Child  pornography is  not a  victimless crime,  but for

DeCosta and his family this is surely a very sad  affair.  We

commend the district court for its multiple efforts to find a

solution  best  suited to  the  circumstances.   As  for  the

government, zeal  is ordinarily to be admired  in a prosector

but it can  be overdone.   Accordingly, we  are comforted  to

learn  that  prior  to  prosecution DeCosta  was  offered  an

opportunity to participate in the pretrial diversion program-

                             -10-                                         -10-

-even  though  for reasons  not  developed in  the  record no

agreement was ultimately reached.

     The   appeal  is   dismissed   for  want   of  appellate                                             

jurisdiction.

                             -11-                                         -11-
