
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-2102                                    UNITED STATES,                                      Appellee,                                          v.                                 RICHARD D. MANGONE,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Bruce Green for appellant.            ___________            Paul  G. Levenson,  Assistant United  States Attorney,  with  whom            _________________        Donald K. Stern, United States Attorney, and Victor A. Wild, Assistant        _______________                              ______________        United States Attorney, were on brief for appellee.                                 ____________________                                   January 28, 1997                                 ____________________                      BOWNES, Senior Circuit Judge.  Defendant Richard D.                      BOWNES, Senior Circuit Judge.                              ____________________            Mangone was convicted after a lengthy jury trial on counts of            conspiracy,  bank  fraud, unlawful  receipt  of  monies by  a            credit union officer, and money laundering.  He appeals  both            his conviction  and the  district court's decision  to depart            upward from the applicable Sentencing Guidelines range.                                            I                                           I                                        Facts                                        Facts                                        _____                      In  order to  understand  the  issues  properly,  a            thorough  recitation of  the  scope  of defendant's  criminal            conduct is required.  We relate  the facts in the light  most            favorable  to the verdict.   See United States  v. Wihbey, 75                                         ___ ________________________            F.3d 761, 764  (1st Cir.  1996).  Between  December 1985  and            March  1991, defendant  conspired  with James  Smith,  Robert            Cohen, and  Ambrose Devaney  to defraud two  separate lending            institutions,  the Barnstable Community  Federal Credit Union            ("BCCU")  and  the  Digital Employees  Federal  Credit  Union            ("Digital").   Defendant, president of Digital  and a founder            of BCCU,  and Smith, a real estate developer and a founder of            BCCU, were the primary organizers of the fraud.  Robert Cohen            was  general counsel to both  credit unions.  Ambrose Devaney            was a  real estate  developer on  Cape Cod.     This  court's            affirmance of  the convictions and sentences  of Smith, Cohen            and Devaney is found at United States v. Smith, 46 F.3d  1223                                    ______________________            (1st Cir.), cert. denied, 116 S. Ct. 176 (1995).                        ____  ______                                         -2-                                          2                      Defendant and Smith used their control over the two            credit  unions to obtain tens of millions of dollars in loans            for their  own speculative real  estate ventures.   The loans            were  used in part to finance the purchase of commercial real            estate  on Cape Cod, usually motel properties or raw land for            residential subdivisions.  The loans were, in many instances,            funded in amounts far in excess of the purchase price of  the            property,  with much of  the excess  going directly  into the            pockets  of defendant, Smith, and Devaney.  In order to avoid            the credit  union's policies restricting  "insider" loans  as            well as policies limiting maximum borrowing by an individual,            the conspirators formed over a dozen nominee trusts to create            the  fiction  that the  loans  were going  to  many different            borrowers.     As president of Digital, which had experienced            explosive  growth  since  its  founding  in  1980,  defendant            enjoyed  the  confidence  of  that credit  union's  board  of            directors and staff.  Defendant was therefore  able to induce            Digital   to   allocate    approximately   $20,000,000    for            "investment"   in  participation  loans  with  BCCU,  without            disclosing the  fact that  defendant himself was  one of  the            ultimate borrowers of those funds.   All of the participation            loans were made to  trusts owned by defendant and  Smith (and            in most cases Devaney).   In each instance, the participation            loans  were funded  in amounts  far in  excess of  the actual            purchase  price of  the  commercial property.   These  excess                                         -3-                                          3            funds,  known  as "pie,"  were siphoned  off and  diverted to            accounts  controlled  by  defendant  or  Smith   for  further            distribution.  The  amount of "pie" varied  but was generally            between $75,000 and $200,000 per partner per loan.                      For  all of  the participation  loans and  for many            additional loans, defendant and his co-conspirators concealed            their ownership interests by  placing in BCCU's and Digital's            files  phony  certificates  of  beneficial  interest, falsely            naming  certain individuals as  beneficiaries of  the trusts.            In order to obtain loans well in excess of the purchase price            of  the  property, defendant  and  Smith  forged and  altered            purchase and sale agreements,  often inflating prices by over            one million dollars.   For most  of the participation  loans,            defendant,  Smith,  and  Lynn Vasapolle,  an  unindicted  co-            conspirator, prepared fake financial statements to create the            false impression that the putative borrowers (the "trustees")            were wealthy individuals capable  of repaying the loans being            extended.                      Most  of the  participation  loans  were  initially            closed  between December 1985 and October 1988, and were made            with "interest  only" notes  for relatively short  terms (1-2            years), with a balloon payment of the full principal due upon            expiration.  When they were  unable to find legitimate buyers            to whom they could sell the properties at a profit sufficient            to  cover both  the original  purchase price  and  the excess                                         -4-                                          4            "pie" they  had received,  the conspirators began  to pyramid            their loans.                      Beginning in 1986, as loans came due on subdivision            properties, Cohen would draw up papers "selling" a portion of            the original subdivision to a newly created trust.  Defendant            and Smith  would then cause  BCCU to make  a loan to  the new            trust to finance the  purchase.  The new loan  proceeds would            then be used to  pay off the proportionate share of the prior            loan.  Purchase "prices"  were again artificially inflated so            as  to provide cash which was used to cover interest payments            on  the new  loans  and  to help  with  debt  service on  the            existing  loans.  By March 1991,  when BCCU was seized by the            National Credit Union Administration, the outstanding balance            of the Mangone-Smith-Devaney loans  amounted to between forty            and sixty million dollars.                        On September 12, 1992, defendant, Smith, Cohen, and            Devaney  were indicted for  conspiracy (18  U.S.C.    371) to            commit  bank fraud  (18 U.S.C.    1344); unlawful  receipt of            monies  by a  credit union  officer (18  U.S.C.    1006); and            money laundering (18 U.S.C.   1957).  The case was tried on a            redacted indictment  that included a conspiracy  count, seven            bank  fraud  counts, seven  parallel unlawful  receipt counts            (which  concerned defendant alone)  and the  money laundering                                         -5-                                          5            charges.  Defendant was convicted on  all counts.1  Defendant            fled prior to  sentencing and remained at large  for eighteen            months  before  he  surrendered.    On  September  12,  1995,            defendant was sentenced to twenty-four years of incarceration            after the  district court departed  upward by two  years from            the maximum sentence under the Guidelines.                                            II                                          II                                   The Bruton Error                                   The Bruton Error                                   ________________                      Defendant appeals  his conviction  on the basis  of            alleged error  under Bruton  v. United  States, 391  U.S. 123                                 _________________________            (1968).    This  issue   has  already  been  decided  against            defendant's  co-conspirator Smith,  who asserted  a factually            identical claim of Bruton error in his appeal, which we found                               ______            to  have been  harmless error.   Smith,  46 F.3d  at 1229-30.                                             _____            Although we could dispose of defendant's  claim on the ground            of stare decisis, we provide a brief analysis.               _____ _______                      The Supreme  Court held in Bruton  that, because of                                                 ______            the substantial  risk that the jury,  despite instructions to            the  contrary,  will look  to  a  codefendant's incriminating            extrajudicial statement in determining the defendant's guilt,            admission  of  a codefendant's  statement  in  a joint  trial            violates the defendant's right of cross-examination under the                                            ____________________            1.  Smith  was  also convicted  on  all  counts.   Cohen  was            convicted  on all  counts  except for  four money  laundering            charges.   Devaney was convicted of  conspiracy, three counts            of bank fraud and  one count of money laundering.   Smith, 46                                                                _____            F.3d at 1227.                                         -6-                                          6            Confrontation  Clause of  the Sixth  Amendment.   Bruton, 391                                                              ______            U.S. at 126.  The  evidentiary basis for the Bruton  claim is                                                         ______            as follows.                       On  the last  day of trial  testimony, co-defendant            Cohen  called  to  the  stand  Professor  Richard  Huber,  an            authority on the  professional responsibilities of attorneys.            Testifying  under the  district court's  limiting instruction            that the testimony  was relevant  as to Cohen  only, and  had            nothing to  do with  any of Cohen's  co-defendants, Professor            Huber  reiterated the events of April 4, 1991, when Cohen met            with him  to obtain  advice concerning his  representation of            BCCU,  which by  that  time  was  in  the  hands  of  federal            regulators.  Huber testified that Cohen explained to him that            Cohen's  clients, "a  former officer  of the  bank, a  former            director of the bank, and a bank manager came in and spoke to            [Cohen] . .  . concerning activities  that involved them  and            their work  at the bank."  Smith, 46 F.3d at 1228.  According                                       _____            to  Huber,  Cohen stated  that  "certain  documents had  been            changed, the  information had been changed,  figures had been            changed, data had been changed, [and] that this had been done            after  preparation  by Mr.  Cohen  and  after they  had  been            presumptively completed."  Id.                                         ___                      Like  Smith  before  him,  defendant  asserts  that            Huber's testimony constitutes reversible Bruton error because                                                     ______            it  "expressly implicate[s]  the defendant, leaving  no doubt                                         -7-                                          7            that it would prove powerfully incriminating."  Id. (internal                                                            ___            quotation   marks   and   citations  omitted)(alteration   in            original).   In Smith, we  assumed without deciding  that the                            _____            admission  of Huber's testimony constituted Bruton error, but                                                        ______            held that  any such  error was  harmless beyond  a reasonable            doubt.  46 F.3d at 1229.                       Relying  on  Chapman  v. California,  386  U.S.  18                                   ______________________            (1967), and related cases, defendant  argues strenuously that            the  error was  not  harmless.    We  disagree.    We  remain            convinced that any Bruton error that may have occurred below2                               ______            was harmless for the reasons stated in Smith:                                                    _____                      The jury convicted  all the defendants on                      the  conspiracy count, and  Cohen on most                      of the  substantive counts.  Even  if the                      jury threw the  curative instructions  to                      the  wind  and  considered  the  stricken                      testimony as evidence against [Mangone],3                      the scenario which implicates  Bruton, it                                                     ______                      could  not  have  believed Cohen's  claim                      that the unnamed clients confessed to him                                               _________                      at the  close of the conspiracy.   No one                      confesses to a partner in crime.                           Admittedly, Cohen's  statement might                      tend to incriminate [Mangone] and Devaney                      by showing that the coconspirators met to                      discuss damage  control.  In  this sense,                      however, the statement falls  far outside                      the     pale    of     the    "powerfully                      incriminating"  evidence   that  produces                      Bruton  errors.    Vasapolle had  already                      ______                      testified     in     detail    to     the                                            ____________________            2.  As  we did in Smith, we "assume without deciding that the                              _____            district   court  correctly  found   that  Bruton  error  had                                                       ______            occurred."  Smith, 46 F.3d  at 1229.                          _____            3.  The name "Mangone" has been substituted for "Smith."                                         -8-                                          8                      coconspirators' meetings in  the wake  of                      the  BCCU takeover.   Thus,  once Cohen's                      statement  is   considered  as  something                      other    than    an   account    of   the                      codefendants'  confessions,   it  becomes                      merely  cumulative  of  the  government's                      case and could  not have produced  Bruton                                                         ______                      error.                           The  right of  confrontation ensures                      that  a  criminal  defendant  can  cross-                      examine his  or her accusers.   Had Cohen                      testified  to   the  confession  himself,                      [Mangone's]  cross-examination  of  Cohen                      would   have  sought  to   show  that  no                      confession ever occurred.   The  verdicts                      suggest that  the jury, if  it considered                      this  evidence,  found  just  that.   The                      jury, even if it disregarded the limiting                      instructions,  plainly  did  not  believe                      Cohen's claim that  his codefendants  had                      confessed   to   him.     It   is  clear,                      therefore,  that  any  Bruton  error  was                                             ______                      harmless beyond a reasonable doubt.            46 F.3d at 1229-30 (footnote and citations omitted).  Because            there is  no difference  between defendant's claim  of Bruton                                                                   ______            error and the Bruton  error asserted by Smith in  his appeal,                          ______            we  follow  the  holding  of  Smith  and  affirm  defendant's                                          _____            c   o   n   v   i   c   t   i   o   n   .                                                             III                                         III                                The Sentencing Appeal                                The Sentencing Appeal                                _____________________                      At  sentencing, the district  court departed upward            by  two years  from the  maximum sentence  allowed under  the            Sentencing Guidelines.   Defendant appeals this departure  on            two grounds:  (1)  that the district court failed  to provide            him  with notice of its planned  departure, as required under            Federal  Rule of  Criminal  Procedure 32,  as interpreted  in                                         -9-                                          9            Burns v. United States, 501 U.S. 129 (1991); and (2) that the            ______________________            upward  departure was impermissible as  a matter of  law.  We            begin our analysis with a  recitation of the district court's            procedure at sentencing.                      Indicating   that  it  was   following  its  "usual            procedure,"  the  district court  stated  that  it would  "go            through  mathematically  the requirements  of  the Sentencing            Guidelines, and if  anyone, government or defense,  disagrees            with the  numbers as I state them . .  . we will then discuss            and  resolve  the differences  right  at that  time."   After            having verified  that the  defendant had read  and understood            the Presentence Report (PSR), the district court proceeded to            calculate  the  applicable   Guidelines  sentence,   assisted            throughout by both  the government and defense  counsel.  The            district court  scrupulously determined the  applicability of            each  guideline and  made  certain that  both government  and            defense agreed on the accuracy of the court's calculations.                        The court then turned  to the question of departure            from the Guidelines, inviting  argument from both  government            and defense.  The government urged an upward departure of two            years on the basis  of defendant's eighteen-month flight from            justice.  Defense counsel  argued against departing upward on            the basis of flight, suggesting  that modest credit should be            given to  defendant for surrendering,  and that consideration            should  be given  to  defendant's age  in weighing  departure                                         -10-                                          10            upward from an already lengthy sentence.   The district court            then provided  defendant with  an opportunity to  address the            court,  during  which  defendant  expressed  remorse  for his            actions.  The district court then announced the sentence:                      [T]his court  sentences you to a total of                      24 years  in  the custody  of the  United                      States Attorney General . . . .                           The  total  sentence  of   24  years                      exceeds the maximum on the various counts                      of  which  you  stand  convicted.    And,                      therefore,  it's  appropriate to  explain                      the manner in which the sentence  will be                      calculated and  the  counts on  which  it                      will be calculated.                      . . . .                           I  depart upward  not on  the ground                      that the government has adverted to; I do                      not punish  you for  a crime,  though you                      admit it  here, for which  you have never                      been  indicted,  and  never been  brought                      before a jury  and never had  the process                      of law.  I depart  upward solely because,                      in my judgment, having presided over this                      case, the egregiousness, evilness of your                      conduct,   on   each   of  the   criteria                      considered  by the  Sentencing Guidelines                      taken in their entirety, takes you out of                      the heartland of the guidelines.                           I  adopt  the   argument  that,   in                      effect, you max  out under the guidelines                      at a sentence that undervalues the actual                      criminality of  your conduct if  it is an                      appropriate goal of the  criminal justice                      system to punish.                      . . . .                           Mr. Mangone,  you've ruined people's                      lives;  lots of  lives, people  you don't                      even know.  Being  sorry to these various                      financial institutions isn't the  half of                      it.  That's  the sentence  of the  Court.                                         -11-                                          11                      At the same  time I'm not insensitive  to                      the Draconian nature of this sentence.  I                      believe    it's   appropriate    in   the                      circumstances  and  I arrive  at  it only                      after  most  careful reflection.   That's                      the sentence of the Court.                                        Notice                                        Notice                                        ______                      The PSR  contains  no information  which  could  be            construed to provide  notice to the defendant that  the court            was   contemplating  an  upward  departure  based  upon  this            particular ground.   In fact, when  the district court  asked            the  government about  the  possibility  that the  Guidelines            sentence undervalued defendant's criminality,  the government            expressly stated that "the guidelines  adequately address the            enormity of the offense here."                      In Burns  the precise question was  whether Fed. R.                         _____            Crim.  P.  32(a)(1), now  32(c)(1),  required the  sentencing            court to give notice to the parties of its intent to make sua                                                                      ___            sponte departures from the Guidelines.  Subdivision (c)(1) of            ______            Rule 32  does not  contain  a specific  notice provision  but            requires  the  district  court  to afford  the  parties  "'an            opportunity to comment  upon .  . . matters  relating to  the            appropriate sentence' at the sentencing hearing."  Burns, 501                                                               _____            U.S. at 132.  The  Court observed, "In our view, it  makes no            sense to impute to  Congress an intent that a  defendant have            the right to comment  on the appropriateness of a  sua sponte                      __ _______                               ___ ______            departure but not the  right to be notified that the court is                                         __ __ ________                                         -12-                                          12            contemplating such a ruling."  Id. at 135-36.  The Court held                                           ___            that                      before a district court can depart upward                      on a  ground not  identified as  a ground                      for  upward  departure   either  in   the                      presentence  report  or  in a  prehearing                      submission  by  the  Government, Rule  32                      requires that the district court give the                      parties  reasonable  notice  that  it  is                      contemplating such a ruling.  This notice                      must specifically identify the  ground on                      which the district court is contemplating                      an upward departure.            Id.  at 138-39 (footnote omitted).   The Burns  rule has been            ___                                      _____            incorporated  into  an application  note  to    6A1.2  of the            Guidelines.                      Defendant challenges the district court's departure            on the  basis that  he was  not provided with  notice of  the            court's intention  to depart  upward.  Because  the defendant            failed  to object  to the  lack of  notice at  the sentencing            hearing,  we review  the district  court's actions  under the            rigorous standard of "plain error" review.  See United States                                                        ___ _____________            v.  Jones, 1 F.3d 1167,  1170 (11th Cir.  1993)(lack of Burns            _________                                               _____            notice subject to plain error review), cert. denied, 510 U.S.                                                   _____ ______            1100 (1994);  United States  v. Lowenstein, 1  F.3d 452,  454                          ____________________________            (6th Cir. 1993)(same).                      Fed. R. Crim. P. 52(b) provides:  "Plain errors  or            defects affecting substantial rights may be  noticed although            they were  not brought to the  attention of the  court."  The                                         -13-                                          13            Court in United States v. Olano, 507 U.S. 725 (1993), teaches                     ______________________            that                      the  authority created  by Rule  52(b) is                      circumscribed.  There must be  an "error"                      that  is  "plain"  and   that  "affect[s]                      substantial  rights."     Moreover,  Rule                      52(b) leaves the decision to  correct the                      forfeited   error    within   the   sound                      discretion of  the court of  appeals, and                      the  court  should   not  exercise   that                      discretion  unless the  error "'seriously                      affect[s]  the   fairness,  integrity  or                      public     reputation     of     judicial                      proceedings.'"            Id. at 732  (quoting United States  v. Young, 470 U.S.  1, 15            ___                  _______________________            (1985))  (other citation  omitted) (alteration  in original).            We now proceed with our Olano analysis.                                    _____                      There  must,   first   of  all,   be  an   "error."            "Deviation from a legal  rule is 'error' unless the  rule has            been waived."   Olano, 507 U.S.  at 732-33.  There  can be no                            _____            doubt  that there was a  deviation from a  legal rule in this            case.    As  stated  supra, Burns  requires  that  "before  a                                 _____  _____            district court  can depart upward on a  ground not identified            as a  ground for upward  departure either in  the presentence            report or in a prehearing submission by the Government, . . .            the district court [must]  give the parties reasonable notice            that it is  contemplating such a ruling."   501 U.S.  at 138.            This rule was completely ignored.                      We reject the government's contention that, because            the  PSR  contained  a  full recitation  of  the  defendant's            criminal conduct, this put defendant on notice of the factors                                         -14-                                          14            on which  the court relied  for the upward departure.   If we            accepted the government's theory,  all defendants would be on            notice  as to  any  sua  sponte  departure  so  long  as  the                                ___  ______            departure was based  on facts  contained in the  PSR.   Under            that  theory  the  Court's  holding  in  Burns  would  become                                                     _____            meaningless.                        It is  worth noting that the  sentencing facts here            are  remarkably similar to those in Burns.   In Burns, at the                                                _____       _____            conclusion of  the  sentencing hearing,  the  district  court            announced that  it was  departing upward from  the Guidelines            sentencing  range,  despite  a  statement  in  the  PSR  that            "'[t]here are  no factors  that would warrant  departure from            the guideline sentence.'"   Id. at 131 (quoting PSR).   There                                        ___            was a similar statement in the PSR in this case.                        The next question is  whether the rule was "waived"            or "forfeited."   Olano  teaches that "[w]aiver  is different                              _____            from forfeiture.  Whereas forfeiture  is the failure to  make            the timely assertion of  a right, waiver is the  'intentional            relinquishment or abandonment of  a known right.'"   507 U.S.            at 733 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).                            _________________            In the  case at bar  there was a  forfeiture, the failure  to            make  the timely assertion of a right,  but no waiver.  "If a            legal  rule   was   violated  during   the   district   court            proceedings, and  if the defendant  did not  waive the  rule,            then there has  been an  'error' within the  meaning of  Rule                                         -15-                                          15            52(b) despite the absence  of a timely objection."   507 U.S.            at 733-34.  We have no difficulty finding error.                      Following Olano, we determine whether the error was                                _____            "plain,"  which is  defined as  "synonymous with  'clear' or,            equivalently,  'obvious'."  Id. at  734.  We  think the error                                        ___            here easily fits within the definition of plain error.                      Our  next  inquiry  is   whether  the  plain  error            affected  the substantial rights  of the  defendant.   Id. at                                                                   ___            734.   We think  it did.   An increase  of two years  in time            spent  behind bars  cannot help  but affect  one of  the most            precious  rights  an  individual  has, to  live  in  freedom.            Accordingly,  we  find  that  the  district  court's  plainly            erroneous  departure  affected the    defendant's substantial            rights.  Cf. United States  v. Miranda-Santiago, 96 F.3d 517,                     ___ __________________________________            531 (1st Cir.  1996) (finding  a case in  which "the  claimed            error  could well have an impact on the length of defendant's            incarceration"  to  present  a  "compelling  case"  for   the            application of the plain error doctrine).                      Our  final  step  in   the  Olano  analysis  is  to                                                  _____            determine  whether  we  should,   in  our  discretion,  order            correction  of  this  plain error  that  affects  substantial            rights.   As Olano points out, "Rule 52(b) is permissive, not                         _____            mandatory."  507 U.S. at 735.  The standard that should guide            us  in the exercise of our remedial discretion is whether the            error "'seriously affect[s] the fairness, integrity or public                                         -16-                                          16            reputation of  judicial proceedings.'"   Id. at  736 (quoting                                                     ___            United  States  v.  Atkinson,   297  U.S.  157,  160  (1936))            ____________________________            (alteration in  original).  We  think this standard  has been            met here.   When  a  district court  fails to  follow a  rule            established by  the Supreme  Court, even though  such failure            was not intentional, there  is bound to be an  adverse effect            on the fairness, integrity, and public reputation of judicial            proceedings.   Prior  notice is  one  of the  most  zealously            guarded rights of criminal defendants.  It is embodied in the            Due Process Clause  of the  Fifth Amendment.   In Burns,  the                                                              _____            Court stated,   "In this  case, were  we to read  Rule 32  to            dispense  with notice,  we would  then have  to confront  the            serious question  whether notice in this  setting is mandated            by the Due Process Clause."   501 U.S. at 138.   The singular            importance of  such notice in  the criminal arena  means that            disregard for it cannot help but have a denigrating effect on            the fairness,  integrity, and public  reputation of  judicial            proceedings.                      It must be noted  that the district court expressly            refused to depart  upward on the basis of  defendant's flight            before sentencing.  This was within his discretion.                      For  the  foregoing   reasons  the  conviction   is            affirmed and the sentence of the district court is reduced by            two years, the amount of additional time imposed  pursuant to            the  unlawful  upward  departure.    The  total  sentence  of                                         -17-                                          17            incarceration to be served is twenty-two years.  The judgment            shall be so modified.                      So Ordered.                      So Ordered.                      ___________                                         - Concurring Opinion Follows -                            - Concurring Opinion Follows -                                         -18-                                          18                      STAHL, Circuit Judge  (concurring).  I concur  with                      STAHL, Circuit Judge  (concurring).                               _____________            my  brethren that the failure to comply with the requirements            of  Fed. R. Crim. P. 32(c)(1) warrants a vacatur of Mangone's            sentence.  The right  to prior notice embodied in  that rule,            however, affords a party the  opportunity to comment upon the            appropriate  sentence; it  does not  guarantee a  lesser one.            Unlike the majority,  therefore, I would  remand the case  to            the  district  court for  resentencing  consistent  with this            opinion.                                         -19-                                          19
