
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                     _________________________          No. 92-1619                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  CHARLES E. EMERY,                                Defendant, Appellant.                                                                                     _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                                                                      __________________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Friedman,* Senior Circuit Judge,                                      ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      __________________________               Robert A. Costantino for appellant.               ____________________               Margaret  D. McGaughey,  Assistant  United States  Attorney,               ______________________          with whom Richard  S. Cohen, United States Attorney,  and Raymond                    _________________                               _______          C.  Hurley, Assistant United States  Attorney, were on brief, for          __________          appellee.                                                                                      __________________________                                    April 28, 1993                                                                                     ___________________________                                    ________________          *Of the Federal Circuit, sitting by designation.                    SELYA, Circuit Judge.   This sentencing appeal presents                    SELYA, Circuit Judge.                           _____________          two  issues for our determination.1  We must consider (1) whether          an attempted escape from state custody prior to the initiation of          a federal investigation  into the offense of conviction can serve          as  a  basis  for  enhancing  a  defendant's sentence  under  the          obstruction-of-justice  guideline,  U.S.S.G.     3C1.1;  and  (2)          whether the facts at  bar justify a substantial  upward departure          from  the guideline  sentencing range  (GSR).   Finding  both the          enhancement and the departure to be lawful, we affirm.          I.  BACKGROUND          I.  BACKGROUND                    Defendant-appellant  Charles  E.  Emery  met  Thomas H.          Schmoock  when the two men were  serving overlapping sentences at          the  state  penitentiary  in  Thomaston, Maine.    Appellant  was          released in late April of 1991 and Schmoock went free a few weeks          later.   On May  28, 1991,  the  pair began  executing a  complex          check-kiting scheme.                      In the scheme's preliminary  stage, one of the culprits          posed  as  an agent  of the  Internal  Revenue Service  (IRS) and          solicited information  from an  unsuspecting dupe, one  Thomas E.          Mitchell.   Emery and Schmoock used this information to procure a          copy  of  Mitchell's  birth  certificate;  they  used  the  birth          certificate to obtain a  driver's license bearing Mitchell's name          but Emery's photograph; and they used the license to open several                                        ____________________               1Except where otherwise indicated, all references are to the          November, 1991 edition of the guidelines, which were in effect at          the  time of sentencing.  See, e.g., United States v. Harotunian,                                    ___  ____  _____________    __________          920 F.2d 1040, 1041-42 (1st Cir. 1990).                                          2          checking accounts  in Mitchell's name at  federally insured banks          in Maine and Massachusetts.                    In the scheme's second  phase, Emery deposited a number          of  forged checks drawn on funds of  Lisa and David Holt into the          newly opened accounts.2 He and Schmoock then  began kiting checks          in escalating  amounts among  the three bogus  Mitchell accounts.          Fortunately,  bank officials soon caught  the scent.   On June 6,          1991, officers  of the Sanford, Maine  police department arrested          both  men.   They promptly  attempted to  escape from  the county          jail,  but their escape attempt was no more successful than their          check-kiting swindle.                      Although no  federal investigation had  been mounted to          this  point, one  followed  shortly.   On  November 21,  1991,  a          federal  grand  jury  indicted  appellant  on  a  gallimaufry  of          charges.   He pleaded guilty to impersonation of an IRS agent and          bank  fraud.  See 18 U.S.C.    912,  1344 (1988 & Supp. II 1990).                        ___          At sentencing, the court set the base offense level (BOL) at six,          see U.S.S.G.    2F1.1 (establishing BOL for  bank fraud),3 raised          ___          it seven levels  because of the dollars in issue,  see U.S.S.G.                                                               ___          2F1.1(b)(1)(H) (providing  for a  seven-level  increase if  fraud          involves  $120,000 or  more  but less  than $200,000),  added two          levels because the crime required more than minimal planning, see                                                                        ___                                        ____________________               2The checks, bearing the imprimatur of a New Hampshire bank,          were blank when stolen from the Holts' home several days earlier.               3Because the  impersonation count carried the  same BOL, see                                                                        ___          U.S.S.G.     2J1.4,  it  became irrelevant  to  establishing  the          offense   level  in  this   multiple-count  case.     See  id.                                                                   ___  ___          2J1.4(c)(1).                                          3          U.S.S.G.   2F1.1(b)(2)(A), added  two more levels for obstruction          of justice, see U.S.S.G.    3C1.1, and subtracted two  levels for                      ___          acceptance of responsibility, see  U.S.S.G.   3E1.1.  Appellant's                                        ___          adjusted offense level was, therefore, fifteen.                      Under the guidelines, the GSR is determined by plotting          the  intersection of two lines:   the adjusted  offense level and          the  defendant's  criminal history  category (CHC).   The  CHC is          measured  in terms of assigned criminal history points; it ranges          from I (for a person with fewer than two criminal history points)          to VI (for a person with thirteen points or more).   See U.S.S.G.                                                               ___          Ch.5, Pt.A  (sentencing table).   Appellant sported  an extensive          criminal history involving an assortment of violent felonies and,          more  recently,  some less  serious  peccadillos.   His  score of          twenty  criminal  history  points surpassed  the  thirteen points          needed to place him in CHC VI.  The GSR was, therefore, forty-one          to  fifty- one  months.   See  id. (offense  level  15; CHC  VI).                                    ___  ___          Abjuring  a sentence within  the GSR the  district judge departed          upward, imposing an incarcerative sentence of seventy-two months.                    In this appeal, appellant bemoans both the obstruction-          of-justice enhancement and the upward departure.  We address each          lamentation in turn.          II.  OBSTRUCTION OF JUSTICE          II.  OBSTRUCTION OF JUSTICE                    Appellant does not challenge the factual basis on which          the  district  court  found  an  obstruction  of  justice     the          probation officer's report, credited  by the district court, made          manifest appellant's  attempt to  escape from official  custody                                            4          but,  instead,  posits  that   conduct  otherwise  sufficient  to          constitute an obstruction of justice under the federal sentencing          guidelines   an attempted escape   is inoculated against such use          if  it occurs prior to the initiation of a federal investigation.                                                     _______          The government  seeks to rebut  this theorem  in three ways.   It          avers that the appellant  failed properly to preserve the  point,          that the decision to  depart rendered the  obstruction-of-justice          enhancement moot, and that,  in any event, the court  below acted          within its  lawful authority  in decreeing  the enhancement.   We          elect to analyze the point in terms of the prosecution's last two          rebuttal arguments.4                                    A.  Mootness.                                    A.  Mootness.                                        _________                    We reject the government's asseveration that the upward          departure  renders the  obstruction-of-justice adjustment  moot.           Had the  district court eschewed the disputed adjustment, the GSR          would have been thirty-three  to forty-one months.   See U.S.S.G.                                                               ___          Ch.5, Pt.A (sentencing table)  (offense level 13; CHC VI).   When          an adjustment in the offense  level increases the top end  of the          GSR, and an unguided upward departure ensues, the adjustment,  at          least potentially, has more than an academic effect on the actual                                        ____________________               4We  waste no time in regard to the prosecution's attempt to          conjure up a procedural  default.  Its reasoning in  this respect          is  premised  largely  on  an extemporaneous  suggestion  by  the          Assistant United States Attorney during the sentencing hearing to          the effect that the  federal probe might have started  before the          date of the attempted escape   a comment which went unanswered by          defense  counsel.    Having read  the  record  carefully, we  are          convinced that the government's waiver claim cannot withstand the          most  mild scrutiny.   Appellant fully preserved  the "no ongoing          federal investigation" point.                                          5          sentence because the proportionality of the departure to the  GSR          is a salient factor  to be considered in judging  the departure's          reasonableness.   See United States v. Ocasio, 914 F.2d 330, 337-                            ___ _____________    ______          38  (1st Cir.  1990).   Accordingly, we rule  that a  decision to          depart  does  not,  as  a  general  rule, render  moot  questions          concerning the  appropriateness of the  calculations underbracing          the district court's computation  of the GSR.  See  United States                                                         ___  _____________          v. Mondaine, 956  F.2d 939, 943 (10th Cir. 1992)  (holding that a             ________          district court's  downward departure under section  4A1.3 did not          moot  the defendant's argument that he was entitled to a downward          adjustment in the BOL).   Consequently, the adjustment is zoetic,          not moot; and the  defendant has standing  to protest it in  this          appeal.5                                  B.  The Enhancement.                                 B.  The Enhancement.                                     ________________                    We  turn now  to  the enhancement  itself.   We  do  so          mindful that in cases where, as here, an objection to a guideline          enhancement  raises a pure  question of law,  appellate review is          plenary.   See United States v.  St. Cyr, 977 F.2d  698, 701 (1st                     ___ _____________     _______          Cir. 1992); United States v. Bell, 953 F.2d 6, 7 (1st Cir. 1992).                      _____________    ____                    We begin  with the language of  the relevant guideline.          It requires  sentencing courts to  jack up a  defendant's offense                                        ____________________               5We recognize, of course, that  if the attempted escape from          state  custody could not furnish a legally cognizable basis for a          section 3C1.1 adjustment, it might then furnish a springboard for          departing upward.  Nevertheless, we are unprepared to say, absent          an express statement  by the district court,  that if appellant's          legal  argument foreclosed the  two-level enhancement,  the court          would simply have compensated for its inability to ratchet up the          offense  level by boosting  the ultimate departure  sentence to a          corresponding degree.                                           6          level  if  "the defendant  willfully  obstructed  or impeded,  or          attempted to  obstruct or  impede, the administration  of justice          during  the  investigation,  prosecution,  or sentencing  of  the          instant  offense."   U.S.S.G.    3C1.1.    The commentary  to the          guideline makes clear that "escaping or attempting to escape from          custody before  trial or sentencing" falls  within the definition          of obstructive or impeding  conduct.  U.S.S.G.    3C1.1, comment.          (n.3(e)).  The case law is  in the same vein.  See  United States                                                         ___  _____________          v. Amos,  984 F.2d 1067, 1072 (10th  Cir. 1993); United States v.             ____                                          _____________          Melton, 970 F.2d 1328, 1335 (4th Cir. 1992).          ______                    The  slightly  more  difficult  task  is defining  when          conduct  can be said to have occurred "during the investigation .          .  . of  the  instant  offense."    Appellant  theorizes  that  a          suspect's conduct,  no matter  how deplorable, cannot  obstruct a          non-existent investigation,  and that,  therefore, if  no federal          probe  has  begun,  there  can  be   no  obstruction  within  the          guideline's  reach.   This  argument  has  a certain  superficial          allure, especially because the inclusion of the term "the instant          offense"  in section 3C1.1 indicates that there must be some link                                                                  ____          between  the obstruction  and  the federal  crime  for which  the          affected  defendant is  to  be sentenced.   See  generally United                                                      ___  _________ ______          States v. Yates, 973 F.2d 1, 4-5 (1st Cir. 1992).            ______    _____                    Be that as it may, several different reasons lead us to          conclude that  appellant's argument cannot prevail.  In the first          place,  the  guidelines should  be  read in  a  common-sense way.          Doing so  here  strongly  suggests  that  the  provision  may  be                                          7          triggered  if, notwithstanding  the  lack of  an ongoing  federal          investigation,   there  is   a  close   connection  between   the          obstructive conduct and the offense of conviction.  In this case,          the  connection   is  skin   tight:    the   behavior  underlying          appellant's arrest by local gendarmes   using  false documents to          open a series of bank accounts and withdraw funds to which he had          no lawful  claim   is the  very essence of the  offense for which          the  district court  sentenced  him.   Since appellant  willfully          sought to  avoid the  consequences of  his felonious  conduct, it          would  be passing strange to reward him merely because he managed          to  engineer  his  attempted   escape  just  before  the  federal          investigation formally began.                                 We also believe it is important that appellant's escape          attempt  would  likely  have  weighed  against  him in  the  pre-          guidelines world.  See, e.g., United States v. Fox, 889 F.2d 357,                             ___  ____  _____________    ___          360-61 (1st Cir. 1989)  (explaining that "relevant conduct," such          as  that occurring in the course of attempting to avoid detection          or  responsibility for an offense,  is the sort  of conduct "that          courts typically  took into account when sentencing  prior to the          Guidelines'  enactment") (citation  and internal  quotation marks          omitted);  see also United States  v. Wise, 976  F.2d 393, 398-99                     ___ ____ _____________     ____          (8th Cir. 1992) (en banc), cert. denied,  113 S. Ct. 1592 (1993).                                     _____ ______          We have often recognized that pre-guidelines precedent can have a          definite  role  in  resolving  interpretive questions  under  the          guidelines.   See, e.g., United  States v. Blanco,  888 F.2d 907,                        ___  ____  ______________    ______          910  (1st Cir.  1989)  (acknowledging that  adjustment provisions                                          8          represent the  Sentencing Commission's attempt to  tie punishment          to  real,   rather  than  charged,  conduct,   and  indicate  the          Commission's  recognition  of   the  "desirability  of  emulating          typical pre-Guidelines practice" in this respect).  We think this          principle has pertinence  in the situation at hand:   there is no          reason  to  assume that  the  Sentencing  Commission intended  to          supplant the long-settled praxis of awarding stiffer sentences to          those who defy official custody.                     In the third place, the  case law supports the district          court's  action.    The  Ninth  Circuit  has  held  squarely that          obstructive  conduct   engaged   in  during   an  ongoing   state          investigation but  prior to the  formal initiation  of a  federal          probe can form the  basis of an enhancement under  section 3C1.1.          See United States  v. Lato,  934 F.2d 1080,  1082-83 (9th  Cir.),          ___ _____________     ____          cert. denied,  112 S. Ct. 271  (1991).  A number  of other courts          _____ ______          have  apparently  adopted  this   view  sub  silentio,  upholding                                                  ___  ________          obstruction-of-justice enhancements despite the fact  that only a          state  or  local  indagation was  underway  at  the  time of  the          enhancement-producing event.  See, e.g., United States v. Dortch,                                        ___  ____  _____________    ______          923 F.2d  629, 632 (8th Cir. 1991);  United States v. Rogers, 917                                               _____________    ______          F.2d 165, 168  (5th Cir. 1990) (per curiam), cert. denied, 111 S.                                                       _____ ______          Ct.  1318 (1991); United States v. Roberson, 872 F.2d 597, 609-10                            _____________    ________          (5th Cir.), cert. denied, 493 U.S. 861 (1989).                         _____ ______                    Finally, the commentary to the guidelines is hospitable          to the conclusion that we  reach today.  It refers to  attempting          escape "from custody," misleading "a law enforcement officer" and                                          9          obstructing   "an  official  investigation,"  U.S.S.G.     3C1.1,          comment.    (n.3), without  any  limitation  to federal  custody,                                                          _______          federal officers,  or official federal investigations.   We think          _______                        _______          that the Sentencing Commission's repeated employment  of generic,          all-encompassing  terms is  a  telltale, indicating  how  section          3C1.1 should be construed.  Cf. United States v.  Fiore, 983 F.2d                                      ___ _____________     _____          1,  2  (1st Cir.  1992) (discussing  degree  of deference  due to          Sentencing  Commission's view  of a  guideline provision),  cert.                                                                      _____          denied,     S.  Ct.     (1993); United States v. Weston, 960 F.2d          ______  ___         ___         _____________    ______          212, 219  (1st Cir. 1992) (explaining that  application notes and          commentary   "are  important   interpretive  aids,   entitled  to          considerable respect").                      In sum, the obstruction-of-justice enhancement rests on          the rationale  that "a defendant who commits a crime and then . .          .  [makes] an  unlawful attempt  to avoid responsibility  is more          threatening  to  society and  less deserving  of leniency  than a          defendant who  does not  so defy" the  criminal justice  process.          United  States v.  Dunnigan, 113 S.  Ct. 1111, 1118  (1993).  The          ______________     ________          threat that a defendant poses is not lessened by the happenstance          of  fleeing  state  rather  than  federal  custody,  nor  is  the          defendant's claim  to leniency strengthened by that happenstance.          Thus,  consistent  with  the   Dunnigan  Court's  rationale,  the                                         ________          Sentencing  Commission's  discernible  intent,  a  traditionalist          approach to sentencing, and the weight of authority, we hold that          so long as some official investigation is underway at the time of                     ____          the obstructive  conduct, the absence of  a federal investigation                                                      _______                                          10          is  not an  absolute bar  to  the imposition  of a  section 3C1.1          enhancement.6   The  instant  case falls  comfortably within  the          zone in which such an enhancement is permissible.           III.  THE UPWARD DEPARTURE          III.  THE UPWARD DEPARTURE                    The  second arrow  in  appellant's quiver  targets  the          upward  departure.    We   examine  such  departures  within  the          tripartite framework  erected in United States v. Diaz-Villafane,                                           _____________    ______________          874 F.2d 43, 49-50 (1st Cir.), cert. denied, 493 U.S. 862 (1989).                                         _____ ______          We  first review de novo whether the circumstances relied upon by                           __ ____          the  sentencing court  are,  as  a  legal matter,  sufficient  to          justify  a  departure; we  then  apply  clear-error oversight  to          determine  whether these  circumstances, if  conceptually proper,          actually exist in  the particular case;  and, finally, we  review          the  direction and  degree of  the departure  for reasonableness.          See id. at 49; see also United States v. Trinidad-Lopez, 979 F.2d          ___ ___        ___ ____ _____________    ______________          249, 252 (1st Cir. 1992); Unite States v. Brown, 899 F.2d 94, 96-                                    ____________    _____          97 (1st Cir. 1990).                    Explicitly conceding that the  first two prongs of this          test  are  satisfied  here,  appellant  assails  the  departure's                                        ____________________               6We are aware that  one court has held that  an obstruction-          of-justice adjustment may lie even if no investigation   federal,          state, or  local   is in  progress.  See United  States v. Barry,                                               ___ ______________    _____          938 F.2d  1327, 1334-35 (D.C.  Cir. 1991).  Although  we need not          reach this question, we view Barry's continued vitality with some                                       _____          skepticism.   For  one thing, amendments  to the  commentary have          deleted much of the language relied upon by the Barry court.  See                                                          _____         ___          U.S.S.G. App.  C at amend. 347.   For another thing,  the text of          the  obstruction section, on its face, seems to require that some          investigation be underway.  See U.S.S.G.   3C1.1; see also United                                      ___                   ___ ____ ______          States  v Kirkland, 985 F.2d 535, 537-38 (11th Cir. 1993); United          ______    ________                                         ______          States v. Luna, 909 F.2d 119, 120 (5th Cir. 1990) (per curiam).          ______    ____                                          11          magnitude.     He  contends   that  the  district   court  failed          sufficiently  to justify the degree of its departure and that the          sentence imposed  is beyond the  bounds of  reasonableness.   His          contentions are insubstantial.                                 A.  Stating Reasons.                                 A.  Stating Reasons.                                     ________________                    It is  true  that a  sentencing  court must  provide  a          statement of the  reasons undergirding a departure  from the GSR.          See 18 U.S.C.   3553(c) (1988).   Here, however, the lower  court          ___          honored  the  statutory  imperative,  furnishing  three  specific          reasons for the  departure.  It found that (1)  there was a great          likelihood   of  recidivism,7  (2)  appellant's  record  included          several  offenses for which  he had received  no criminal history          points, yet,  even so, his criminal history score far outstripped          what was  necessary to place him  in CHC VI, and  (3) appellant's          record  also revealed  sentences of  substantially more  than one          year  imposed as  a  result of  independent  crimes committed  on          different  occasions.  Once the court gave so precise a statement                                        ____________________               7Appellant's  offhand  suggestion  that the  district  court          lacked a factual basis for this conclusion is jejune.  The  court          supportably found  that appellant  began planning the  offense of          conviction  while still  in prison  and embarked upon  it "almost          immediately  upon  release."   The  court  could reasonably  have          believed that so brief  an interval between being a  prisoner and          implementing a  sophisticated crime was a  fair indication, under          all  the  circumstances,  that  recidivism was  a  highly  likely          eventuality.  We discern no clear error in this finding.                                           12          of  reasons, the statute was satisfied.8   We do not think that a          district court must dissect its departure decision, explaining in          mathematical or pseudo-mathematical terms each microscopic choice          made in arriving at  the precise sentence.  See  United States v.                                                      ___  _____________          Aymelek, 926  F.2d 64, 70  (1st Cir.  1991); Ocasio, 914  F.2d at          _______                                      ______          336.  To impose such a requirement under the  guise of procedural          reasonableness would simply add  a layer of unnecessary formality          to  the departure  equation.9   We  flatly  reject so  auxetic  a          notion, preferring to regard reasonableness  as "a concept, not a          constant."  Ocasio, 914 F.2d at 336.                      ______                    Let  us  be perfectly  clear.    Under the  guidelines,                                        ____________________               8We note  in passing  that each  of the three  circumstances          identified by the  court below comprises a  permissible basis for          an upward  departure.   To  illustrate,  a sentencing  court  may          consider departing when the CHC "does not adequately reflect  the          seriousness  of  the defendant's  past  criminal  conduct or  the          likelihood  that   the  defendant  will   commit  other  crimes."          U.S.S.G.   4A1.3.  Among the items of "reliable information" that          may indicate the presence  of such a situation are  the existence          of  "prior sentence(s) not used in computing the criminal history          category" and  "prior sentence(s) of substantially  more than one          year  imposed as  a  result of  independent  crimes committed  on          different occasions."  U.S.S.G.   4A1.3(a), (b).               9Of  course,  we  speak  in terms  of  unguided  departures.                                                      ________          Section 4A1.3, as it  stood at the time appellant  was sentenced,          offered no guidance as to the extent of an upward departure based          on the criminal  history of a defendant in CHC  VI.  See Aymelek,                                                               ___ _______          926  F.2d at  70; Ocasio,  914 F.2d  at 336  n.4.   The operative                            ______          guideline  has  since been  amended  to  indicate  that,  when  a          sentencing court seeks to  depart upward from CHC VI,  it "should          structure  the   departure  by  moving  incrementally   down  the          sentencing  table to  the next higher  offense level  in Criminal          History Category  VI until it finds a guideline range appropriate          to the case."  U.S.S.G.    4A1.3 (Nov. 1992); U.S.S.G. App.  C at          amend.   460.    However, appellant  does  not suggest  that  the          district court  should have followed this  particular methodology          in applying the  pre-amendment version of section 4A1.3.   Hence,          we do not consider the question.                                           13          upward departures  carry with them a certain  burden to explicate          the  decisionmaking  process.    See  Aymelek,  926  F.2d  at  70                                           ___  _______          (observing  that  a  sentencing  court  must  clearly  articulate          reasons for the scope of the departure).  But when  the court has          provided a reasoned justification for its decision to depart, and          that  statement constitutes  an  adequate summary  from which  an          appellate   tribunal  can   gauge  the   reasonableness   of  the          departure's  extent,  it has  no  obligation  to  go further  and          attempt  to quantify the impact of each incremental factor on the          departure  sentence.   See  id.  (ruling  that, in  reference  to                                 ___  ___          unguided departures, "a  sentencing court need not  resort at all          to analogies");  Diaz-Villafane, 874 F.2d  at 51-52  (questioning                           ______________          the  wisdom of  allowing unguided  departure decisions  to become          mere "matter[s] of arithmetic"  or products of "mechanistic bean-          counting").10     Here,    the  sentencing   court's  articulated          grounds  for  departing  permit   us  adequately  to  assess  the          reasonableness of the  departure sentence.  No more  is exigible.          See  Williams  v. United  States, 112  S.  Ct. 1112,  1121 (1992)          ___  ________     ______________          (stating  that in  gauging the reasonableness  of a  departure, a                                        ____________________               10While this  circuit has explicitly refused  to subject the          concept of  reasonableness to  formulaic constraints, some  other          circuits  have mandated  a more  mechanical approach  to unguided          departures.   See, e.g., United  States v. Thomas,  930 F.2d 526,                        ___  ____  ______________    ______          531  (7th Cir.)  ("The  sentencing judge  is  . .  . required  to          articulate  the specific  factors  justifying the  extent of  his          departure and to adjust the defendant's sentence by utilizing  an          incremental  process that  quantifies the  impact of  the factors          considered by the court on defendant's sentence."), cert. denied,                                                              _____ ______          112  S. Ct. 171 (1991);  United States v.  Lira-Barraza, 941 F.2d                                   _____________     ____________          745,  748-50 (9th  Cir.  1991) (en  banc)  (similar).   With  due          respect  for this difference of opinion, we adhere to our circuit          precedent.                                          14          reviewing tribunal must "look[]  to the amount and extent  of the          departure  in  light of  the grounds  for  departing" and  to the          purposes of sentencing).                                   B.  Reasonableness.                                 B.  Reasonableness.                                     _______________                    We move  now to  a consideration of  the reasonableness          vel non of the departure.  In this case, the district court hiked          ___ ___          appellant's  sentence   by  twenty-one  months,  an  increase  of          approximately  41%  over  the  GSR's ceiling.    Considering  the          seriousness of  appellant's past criminal conduct,  the extent to          which  his  criminal history  score  exceeded  that required  for          membership in CHC  VI, and the court's  supportable finding anent          likely  recidivism, we  cannot  say that  the  magnitude of  this          departure is unreasonable.   See, e.g., Brown, 899 F.2d  at 96-97                                       ___  ____  _____          (upholding   as  reasonable   a  twelve-month   upward  departure          representing a  133% increase  over the  GSR's  ceiling);   Diaz-                                                                      _____          Villafane, 874 F.2d at 51-52 (upholding  as reasonable an eighty-          _________          seven month  upward departure  representing a 264%  increase over          the GSR's top end); see also Ocasio, 914 F.2d at 337 (identifying                              ___ ____ ______          factors to be considered in reasonableness review).                     Appellant's  contention  that  the  court  below  acted          unreasonably because  it failed adequately to consider mitigating          circumstances, namely, the  chronological sequence and  declining          severity of  his previous  convictions, is  utterly unconvincing.          At the sentencing hearing, defense counsel urged the court not to          depart because many of  Emery's violent crimes took place  in his          youth.    The court  explicitly  responded  to this  exhortation,                                          15          stating:  "it is true that there has  been some sort of hiatus in          the seriousness  of the criminal  activity, but there  is clearly          reason here for upward departure."   This is not a case, then, in          which   the  district  court   did  not  consider  countervailing          considerations.  See Ocasio, 914 F.2d  at 337.  Rather, the court                           ___ ______          focused on the grounds for mitigation but chose not to attach the          weight  to  them  that   appellant  obviously  preferred.    This          considered  weighing is  just the  sort  of "judgment  call" that          should   not   ordinarily  be   disturbed   in   the  course   of          reasonableness review, Diaz-Villafane, 874 F.2d at 49, especially                                 ______________          when,  as  now, the  ostensibly  aggrieved  party has  given  the          appellate court  no solid reason  to question  the trial  judge's          calibration of the scales.                      We  need  go  no  further.    The court  below  plainly          fashioned  the   sentence  with  defense  counsel's   recital  of          mitigating circumstances in mind.  The end product   a twenty-one          month upward departure   represented a choice that discounted the          importance  of those circumstances  but that,  nevertheless, came          well within the court's discretion.           Affirmed.          Affirmed.          _________                                          16
