          United States Court of Appeals
                     For the First Circuit


No. 99-2380

                   UNITED STATES OF AMERICA,

                          Appellant,

                              v.

                     EUGENE EDWARD MARTIN,

                     Defendant, Appellee.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. William G. Young, U.S. District Judge]


                            Before

                Selya and Lipez, Circuit Judges,

                and Casellas,* District Judge.


     Dina Michael Chaitowitz, Assistant United States Attorney,
with whom Donald K. Stern, United States Attorney, was on brief,
for appellant.
     Thomas H. Souza, with whom Jeremy M. Carter and Carter &
Associates were on brief, for appellee.




                        August 15, 2000
________________
*Of the District of Puerto Rico, sitting by designation.
           SELYA, Circuit Judge. This appeal tests the boundaries

of the district court's authority to depart from the prescribed

guideline sentencing range (GSR).              Concluding, as we do, that

the court roamed too far afield, we vacate the imposed sentence

and remand for resentencing.

                                       I.

                                   Background

           The relevant facts are simple and straightforward.                  On

May 11, 1999, defendant-appellee Eugene Edward Martin pleaded

guilty to a charge of distributing 119.6 grams of cocaine base.

See   21   U.S.C.     §    841.     The     district   court   convened       the

disposition hearing on September 8, 1999.              It applied the 1998

edition    of   the       United   States    Sentencing   Guidelines      —     a

determination with which no one quarrels, see United States v.

Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990) — and arrived

at a base offense level of thirty-two.             See USSG §2D1.1(c)(4).

The court proceeded to adjust downward by three levels for

acceptance of responsibility.             See id. §3E1.1.      It then found

the "safety valve" to be applicable, see 18 U.S.C. § 3553(f);

USSG §§2D1.1(b)(6), 5C1.2, and effected a further two-level

reduction, see generally United States v. Ortiz-Santiago, 211

F.3d 146, 150-51 (1st Cir. 2000) (explaining operation of the

safety valve).        These calculations yielded an adjusted offense


                                      -3-
level of twenty-seven, which, when combined with Martin's lack

of a prior criminal record, corresponded to a GSR of 70-87

months.        See USSG Ch.5, Pt.A (sentencing table).

               To this point, the district court's judgments were

impeccable.       The court, however, did not stop there; it snubbed

the GSR and departed downward sua sponte to impose a 64-month

incarcerative term.            The judge premised this departure on a

combination of two factors.                First, he remarked "the absence of

[an active] Sentencing Commission."1                     This circumstance, he

reasoned,       was   one   that     "no    one   had   contemplated"      and    that

permitted him to depart "if I think it reasonable that had there

been       a   Commission      the    guidelines        would    in      fact    apply

differently."          Judge    Young      then   referred      to   a   statistical

compilation that he had directed the chief probation officer to

prepare.        These statistics purported to reflect all federal

sentences imposed in fiscal year 1997 on persons whose primary

offense was drug trafficking, regardless of the nature or amount

of the substances involved.                 In Judge Young's view, the data

"show[ed] that nationally the median months in prison out of

17,137 offenders sentenced was 57 months, and in the First



       1
     In fact, the Commission had no voting members from and
after October 31, 1998, having lost its quorum earlier that
year. This situation persisted until the Senate confirmed seven
new Commissioners on November 10, 1999.

                                            -4-
Circuit the mean was 67.8 months, with a median of 50 months out

of 543 offenders."      Accordingly, sentencing Martin within the

GSR would promote this disparity, whereas imposing a shorter

term of immurement would partially offset it (and was, in the

judge's opinion, "just and fair").

            The government appeals this downward departure.

                                   II.

                                 Analysis

            We review departure decisions for abuse of discretion.

See Koon v. United States, 518 U.S. 81, 96-100 (1996); United

States     v. Brewster, 127 F.3d 22, 25 (1st Cir. 1997).              Our

precedents     contemplate   a   trifurcated   approach.    "First,    we

determine as a theoretical matter whether the stated ground for

departure is permissible under the guidelines.         If the ground is

theoretically appropriate, we next examine whether it finds

adequate factual support in the record.          If so, we must probe

the   degree     of   the    departure   in    order   to   verify    its

reasonableness."      United States v. Dethlefs, 123 F.3d 39, 43-44

(1st Cir. 1997) (footnote and citations omitted).              In this

instance, we need not go beyond the first facet of the Dethlefs

inquiry.

                                    A




                                   -5-
             Before proceeding to that point, however, we pause to

consider     the   defendant's    contention    that   the    government

forfeited the argument that it advances on appeal by failing to

raise it below.      On the surface, this contention seems potent —

but the surrounding circumstances dissipate its force.

             A sentencing court has an obligation to give reasonable

notice that it is contemplating a departure.              See Burns v.

United States, 501 U.S. 129, 138-39 (1991).            This obligation

applies not only to upward departures, as was the case in Burns,

but   also    to   downward   departures.      See   United   States   v.

Pankhurst, 118 F.3d 345, 357 (5th Cir. 1997).          Here, the record

reveals that the sentencing court neglected to provide the

government with adequate notice of its contemplated downward

departure.

             The defendant questions whether this is so, adverting

to a pretrial conference held on December 21, 1998, in which

Judge Young mentioned the dormancy of the Sentencing Commission,

expressed concern about the status of the guidelines, and told

the parties that he intended to obtain some sentencing data from

the chief probation officer.         We reject the suggestion that

these comments constituted adequate notice of a contemplated

departure.




                                   -6-
             In the first place, the judge's remarks were made

almost five months before the defendant changed his plea and

some nine months before the disposition hearing.                                The record

reveals no continuing dialogue during the interim.                               Moreover,

the presentence investigation report made no mention of this (or

any other) possible basis for departure.                        On these facts, we do

not    think    that    the      prosecutor        reasonably       could       have       been

expected to divine an intention to depart despite the court's

evident discomfiture with the Sentencing Commission's status.

The judge's ruminations at the pretrial conference — ruminations

that    he   himself       described        as     "only       academic"    —    may       have

adumbrated,      but    certainly           did    not     articulate,      a        coherent

rationale for departure.

             If more were needed — and we doubt that it is — the

statistics upon which the judge rested the departure were not

furnished      to    the    prosecution            at    any     time   prior        to    the

disposition hearing.             This was too late:               a sentencing court

must give fair warning not only of the rationale for a possible

departure      but   also       of   the    facts       that    undergird       it    in   the

particular instance.            See United States v. Morris, 204 F.3d 776,

778 (7th Cir. 2000).                 Here, the court's introduction of a

substantial      body      of    new       data    at    the     disposition          hearing

contravened its obligation to afford the parties reasonable


                                             -7-
notice of what it envisioned as departure-justifying facts.                  See

id.       Given this chronology of events, we are constrained to

conclude that the district court failed to comply with Burns.

             Next, we turn to the question of remedy.                 In some

circumstances,       the   omission    of    a    departure     warning    might

engender a remand for further proceedings.                Here, however, such

a course would unduly prolong matters without any corresponding

gain.      The government's objection to the departure is purely

legal in nature, the parties have fully briefed the merits, and

supplementary factfinding is not indicated.               As long as fairness

concerns are not compromised, courts should try to be practical.

In the circumstances of this case, it makes sense to treat the

lower      court's   failure    to    give       notice    as   excusing     the

government's procedural default and rendering the departure

decision ripe for appellate review.2               Accord United States v.

Bartsma, 198 F.3d 1191, 1197-99 (10th Cir. 1999).

                                       B

             Having vaulted this procedural hurdle, we repair to the

first prong of the         Dethlefs inquiry.         A court may impose a



      2
     We hasten to add that the error of which the government
complains is plain, and thus warrants correction whether or not
preserved. See United States v. Mangone, 105 F.3d 29, 35 (1st
Cir. 1997); see also United States v. Torres-Rosa, 209 F.3d 4,
8 (1st Cir. 2000) (confirming applicability of plain error
doctrine in sentencing appeals).

                                      -8-
sentence outside the GSR if "the court finds that there exists

an aggravating or mitigating circumstance of a kind, or to a

degree,    not      adequately      taken       into     consideration         by     the

Sentencing Commission in formulating the guidelines that should

result in a sentence different from that described."                          18 U.S.C.

§ 3553(b).      To determine whether a circumstance was adequately

considered     by   the    Commission,       the   court      must    examine        "the

sentencing       guidelines,        policy       statements,         and      official

commentary of the Sentencing Commission."                   Id.      These precepts

are   embedded,      virtually      word    for    word,      in   the       guidelines

themselves.      See USSG §5K2.0.

              The departure power is intended to ameliorate the

mechanistic rigidity of the guidelines and to import a modicum

of    flexibility     into    the    sentencing        calculus.             Thus,    the

Commission, generally speaking, did "not intend to limit the

kinds of factors, whether or not mentioned anywhere in the

guidelines, that could constitute grounds for departure in an

unusual case."         USSG Ch.1, Pt.A, intro. comment. (n.4(b)).

Given   this     overall     philosophy,        courts    categorically         reject

potential grounds for departure at their peril.

              Most general rules admit of exceptions, however, and

there   are    several     exceptions      to    the   rule    that      a    departure

theoretically can be grounded on any differentiating factor.


                                       -9-
Under these exceptions, sentencing courts are barred from basing

departures on forbidden factors, factors adequately considered

by the Commission, factors that lack relevance, and factors that

offend the framework and purpose of the guidelines.

          The    first   of   these   exceptions    refers      to   certain

enumerated factors that the Commission has placed beyond the

pale, e.g., race, sex, national origin, creed, religion, and

socioeconomic status.       See USSG §5H1.10.    Forbidden factors can

never serve as the basis for a departure.        See Koon, 518 U.S. at

95-96; United States v. Perez, 160 F.3d 87, 89 (1st Cir. 1998).

The   second    exception     flows   directly     from   the    statutory

requirement that only an "aggravating or mitigating circumstance

. . . not adequately considered by the [Commission]" can ground

a departure.    18 U.S.C. § 3553(b).      The third exception, which

precludes the use of irrelevant factors, can be considered a

subset of the second.          See, e.g., United States v. Clase-

Espinal, 115 F.3d 1054, 1059-60 (1st Cir. 1997) (holding that

acceding to deportation was a circumstance adequately considered

by the Commission and therefore irrelevant to the departure

calculus).     The fourth exception, which proscribes the use of

considerations that are inconsistent with the structure and

theory of the guidelines, also bears a family resemblance to the

second exception.        It is, after all, entirely plausible to


                                  -10-
conclude that the Commission "adequately" considers such factors

by disregarding them, and, indeed, the case law applies these

last three exceptions without much differentiation amongst them.

See, e.g., United States v. Snyder, 136 F.3d 65, 70 (1st Cir.

1998) (precluding departures based on federal/state sentencing

disparities); Dethlefs, 123 F.3d at 47 (stating that considering

an unconditional guilty plea as a factor supporting departure

"would intrude upon the Commission's prerogatives and undercut

the sentencing guidelines"); United States v. Wogan, 938 F.2d

1446, 1449 (1st Cir. 1991) (precluding downward departures based

on a perceived need to equalize sentencing disparities between

similarly situated codefendants); United States v. Aguilar-Pena,

887   F.2d   347,   350-53   (1st   Cir.   1989)   (precluding   downward

departures based on incidence of crime in different locales).

             In this case, the lower court predicated its downward

departure on the moribund status of the Sentencing Commission,

together with the perceived disparity between the defendant's

GSR and the national median sentence for persons convicted of

federal drug-trafficking offenses.         Neither element, singularly

or in combination, can carry the weight of a downward departure.

             The Sentencing Commission certainly did not anticipate

being without sufficient members to muster a quorum.             See USSG

Ch.1, Pt.A, intro. comment. (n.4(b)) (explaining that "[t]he


                                    -11-
Commission is a permanent body").             But the Commission's lack of

a quorum, standing alone, is simply irrelevant to an individual

sentencing decision.       Nothing about vacancies on the Commission

is   inherently    aggravating     or    mitigating       for    purposes      of   a

departure assessment.         This circumstance therefore needs help to

clear   the    relevancy   hurdle:        there    must    be    a   solid,    non-

speculative reason to believe that the guidelines would apply

differently had the Commission been at full strength.                       In the

case at bar, the court's adjuvant reason was itself invalid as

a matter of law.       We explain briefly.

              Under our jurisprudence, the fact that the national

median for a broadly stated offense type may be above or below

a    particular   defendant's     GSR    cannot    be     used   to   justify       a

sentencing departure.         See United States v. Rodriguez, 63 F.3d

1159,   1168    (1st   Cir.    1995)    ("Absent    misapplication        of    the

Guidelines, the mere fact of disparity is of no consequence.");

see also United States v. Banuelos-Rodriguez, 215 F.3d 969, 973-

78     (9th Cir. 2000) (en banc) (holding that inter-district

sentencing disparities, arising from differing charging and

plea-bargaining practices, do not constitute a valid ground for

departure); Snyder, 136 F.3d at 70 (similar, in respect to

federal/state sentencing disparities); Wogan, 938 F.2d at 1449

(similar, in respect to sentencing disparities between similarly


                                       -12-
situated codefendants).        Departures based on these kinds of

perceived      inequities    "would      contradict      hopelessly     the

guidelines' structure and theory."         Snyder, 136 F.3d at 70.

            The   district     court's     statistical      foray     aptly

illustrates the wisdom of this point.          The base offense level

for drug trafficking varies from six (for, e.g., less than 250

grams of marijuana) to thirty-eight (for, e.g., 30,000 kilograms

of marijuana).     See USSG §2D1.1(c).      For defendants who are in

criminal history category I, an offense level of six translates

into a GSR of 0-6 months of imprisonment, whereas an offense

level of thirty-eight produces a GSR of 235-293 months.                 See

USSG Ch.5, Pt.A (sentencing table).         This graduated sentencing

structure reflects the Commission's view that not all drug-

trafficking offenses are equivalent; some deserve much longer

sentences than others.        To bring the illustration closer to

home,   this   structure    strongly   suggests   that    the   Commission

intended an individual responsible for distributing 119.6 grams

of cocaine base — like Martin — to serve more time than the

average drug-trafficking offender.          Using the median sentence

imposed as a lodestar for routine departures would effectively

overrule that considered judgment.         Accordingly, this factor is

ineligible for inclusion in the departure calculus.




                                  -13-
            Since it is clear that the district court would not

have departed absent reliance on this impermissible datum, we

could end the analysis here.                Cf. Brewster, 127 F.3d at 30

(suggesting that departure based on combination of valid and

invalid grounds must be vacated when "the exclusion of the

invalid    ground   .     .   .   undermine[s]    the    departure     rationale

articulated by the sentencing court").                  We continue, however,

because    we    think    that    identifying     the    deeper   flaw    in   the

district court's approach may prove worthwhile for future cases.

            The structure and purpose of the guidelines do not

permit departures based on counterfactual reasoning of the type

employed    by    the    court     below.      Courts    must   deal    with   the

guidelines as they stand, without speculation about how the

Commission might (or might not) choose to modify them at some

future     date.3        Just     as   statutes   outlive       the    particular

legislators who enact them (whether or not the legislative body

is in session), so too the enforceability of the guidelines does

not depend on the continued functioning of the Commission.                      To

the contrary, sentencing guidelines, once promulgated, have the



    3At the expense of carting coal to Newcastle, we note that
there is not so much as a hint in the record that the
Commission, had it been velivolant, would have reacted to the
statistics cited by the district court by reducing the penalties
for crack cocaine — or that, had the Commission done so,
Congress would have let the revision become law.

                                        -14-
force of law, see 18 U.S.C. § 3553(b); USSG Ch.1, Pt.A, intro.

comment. (n.2), and that circumstance obtains even when the

Commission is empty.         Thus, departures (up or down) based on the

inherently speculative possibility that the guidelines might

under other circumstances be modified are impermissible.

           Martin offers a variation on this theme.                    He suggests

that the moribund status of the Sentencing Commission left a

vacuum and permitted the trial judge to fill it.                 We reject this

surmise.

           In     the    pre-guidelines       era,    judges   made    sentencing

choices    with    few    restrictions.         But    the     adoption    of    the

guidelines reined in that largely unbridled discretion.                         From

that   point      forward,    judges     no    longer     were    permitted       to

substitute their personal brand of justice for the collective

wisdom of the Sentencing Commission.                    See United States v.

Jackson, 30 F.3d 199, 203 (1st Cir. 1994) (explaining that,

"absent    specific       circumstances       independently       justifying       a

departure, a judge cannot sentence outside a properly computed

sentencing range merely because he believes that the guidelines

work too severe a sanction in a particular case"); United States

v. Norflett, 922 F.2d 50, 53 (1st Cir. 1990) (similar); Aguilar-

Pena, 887 F.2d at 353 (similar).                The Commission's lack of a

quorum,    without       more,   does    not     override       this    important


                                       -15-
principle.     Consequently, a departure based on the district

court's substitution of its own judgment for that of the missing

Commissioners cannot stand.

            There is one more leg to our journey.             In a last-ditch

effort to salvage the sentence, Martin strives to convince us

that   we   should    overlook    any   error     because     the   degree    of

departure was modest (he uses the phrase "de minimis").                We are

not persuaded.        The first — and most basic — question in a

departure inquiry is whether the stated ground for departure is

permissible.       See Dethlefs, 123 F.3d at 43.            If the answer to

that question is in the negative — as it is here — the extent of

the departure is immaterial.

                                     III.

                                 Conclusion

            We need go no further.          Because it was a clear abuse

of discretion for the district court to depart downward on

account of Commission vacancies, unrefined summary statistics,

or a combination of the two, the judgment must be vacated.

            The government's appeal is sustained, the sentence

appealed    from     is   vacated,   and    the   case   is    remanded      for

resentencing in accordance with this opinion.




                                     -16-
