                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-19-1999

USA v. Paster
Precedential or Non-Precedential:

Docket 98-7270




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Filed April 19, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-7270

UNITED STATES OF AMERICA

v.

MITCHELL FREDERICK PASTER,
       Appellant

On appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 96-cr-00221)
District Judge: Honorable Malcolm Muir

Argued December 15, 1998

Before: SLOVITER and COWEN, Circuit Judges,
and OBERDORFER, District Judge*

(Filed April 19, 1999)

Shalom D. Stone (Argued)
Walder, Sondak & Brogan
Roseland, NJ 07068
 Attorney for Appellant

Wayne P. Samuelson (Argued)
United States Attorney's Office
Williamsport, PA 17703
 Attorney for Appellee



_________________________________________________________________

*Hon. Louis F. Oberdorfer, United States District Court for the District
of Columbia, sitting by designation.
OPINION OF THE COURT

OBERDORFER, District Judge.

We here review sentencing decisions rendered by the
District Court below in a very troubling case of murder on
a federal reservation. On August 28, 1996, a federal grand
jury returned an indictment charging Mitchell Frederick
Paster with premeditated murder of his wife, Dr. Margaret
Bostrom, by stabbing her repeatedly with a butcher knife.
18 U.S.C. SS 7(3), 1111. At arraignment, Paster pled not
guilty, and later noticed his intention to plead insanity.
Thereafter, the government indicated that it would not seek
the death penalty authorized by 18 U.S.C. S 1111(b). On the
eve of trial, the government and Paster agreed that he
would plead guilty to second degree murder. At the hearing
preliminary to his acceptance of the plea, the District Judge
elicited from the probation officer and the prosecutor their
best estimate that, as of that time, Paster would face
imprisonment ranging from 168 to 210 months. After a
two-day presentence hearing, the District Court ordered
Paster confined for 365 months.

On this appeal, Paster challenges four aspects of the
sentencing decision: 1) denial of a downward departure on
account of Dr. Bostrom's allegedly provocative conduct; 2)
denial of a downward departure on account of Paster's
arguably aberrant behavior; 3) denial of an additional one-
level downward adjustment for Paster's alleged acceptance
of responsibility; and 4) imposition of a nine-level upward
departure for "extreme conduct." For the reasons stated
herein, we affirm the District Court with respect to issues

one and two, reverse with respect to issue three, and
remand for resentencing after the District Judge has an
opportunity to reconsider his resolution of issue four in
light of our opinion. See Koon v. United States, 518 U.S. 81,
98 (1996).

                               2
I.

The presentence investigation report ("PSR") and Paster's
testimony at the presentence hearing disclosed, and the
District Court found, that Paster and Margaret met in 1985
and married in 1994. At the time of the murder they lived
in Lewisburg, Pennsylvania, where she worked as a
psychologist at the United States Penitentiary. In the
months immediately preceding the August 1996 stabbing,
the couple experienced serious marital problems. One night
in July 1996, after Margaret went out with her supervisor
and did not come home, Paster left Lewisburg for his
parents' home in New Jersey. While there, Paster was
served on July 25 with divorce papers filed by his wife on
July 18.1 Thereafter the two reportedly reconciled by
telephone. However, on August 12, 1996, after Margaret
revealed that she was having an affair with her supervisor,
Paster returned to his parents' home.

After further efforts to reconcile, on the night of August
15 Paster returned home, only to find that his wife was not
there. According to him, she drove by their home on two
separate occasions that night. When she returned the
following morning, he confronted her about where she had
been. She apparently became upset, and telephoned the
warden at the Lewisburg Penitentiary, to whom Paster had
revealed the ongoing affair. Margaret handed Paster the
telephone receiver, and instructed him to retract his prior
statement to the warden. Paster told the warden that he
would not retract the statement, despite being pressured.
After hanging up the phone, Margaret mentioned that she
had a friend on the reservation who kept weapons at his
house, and that if Paster did not retract his statement she
would entice the friend "to do whatever she wanted." She
then told Paster that she had had between forty and fifty
affairs during their relationship, and planned to continue to
pursue the relationship with her supervisor. Thereupon she
went upstairs to take a shower, leaving Paster downstairs.
_________________________________________________________________

1. Paster's response to the filing was due August 15, 1996. He claims
that his wife told him that she planned to withdraw her request for a
divorce, but her lawyer reported having no knowledge of such plans.

                               3
At one point, Paster went outside and conversed with a
neighbor, who reported later that Paster was "very calm,
pleasant, and very soft-spoken." PSR at 9. Minutes later,
however, he went back inside, retrieved a knife from the
butcher block in the kitchen, proceeded upstairs, and then,
as Margaret emerged from the shower, stabbed her with the
knife numerous times. According to an autopsy report
prepared by Dr. Samuel Land, a forensic pathologist, she
died of multiple stab wounds to various vital organs.
Specifically, Dr. Land counted sixteen stab wounds -- nine
of which were life-threatening and six of which were to the
heart -- and eleven slash wounds indicative of defensive
action. Dr. Land also reported that one stab wound
completely penetrated Margaret's sternum, and that one
wound penetrated her body and the floor tile beneath her.
At the sentencing hearing, Dr. Land testified that
Margaret's death "was a very violent" one, and that it "was
one of the most severe cases I've seen." Appendix ("App.") at
189.

After the murder, Paster telephoned his mother at her
place of employment. He then called 911 and reported that
he had stabbed his wife in the chest. He told the emergency
operator his name, his telephone number, and his address,
and described the location of the bloody knife. He remained
on the phone until authorities arrived. First on the scene
were personnel from the Bureau of Prisons. He told them
that he had stabbed his wife and that she was in the
upstairs bathroom. The BOP personnel found her body in
the bathroom; she was lying naked on the floor in a pool of
blood -- dead.

Later that afternoon, agents of the Federal Bureau of
Investigation arrested Paster and took him to the Lewisburg
Penitentiary Training Center for questioning. Atfirst, he
said that he could not remember what happened upstairs;
later in the interview, however, he responded that he did
not want to talk about the events that had transpired.
According to a February 25, 1998 presentence investigation
report, he "remain[ed] unable to recall the actual murder,
but acknowledged his involvement in the offense." PSR at
10. Meanwhile, he filed, and the District Court denied, a
motion to suppress statements that he made to

                               4
investigators on the theory that the FBI agents induced his
statements by promising that he would be able to call his
mother.

In response to Paster's notice of an insanity plea, Dr.
Robert Sadoff, a psychiatrist, concluded after two
examinations that Paster "did not deliberate or premeditate
this killing," and that "[t]he outward explosion of violence
was atypical and foreign" for him. App. at 44. Dr. Sally
Johnson, Chief Psychiatrist for the Mental Health Division
at FCI Butner, concluded that "[t]here was no indication
that [Paster] had formulated any plan to harm his wife,"
and that his reported symptoms of memory loss were
consistent with dissociative amnesia. Id. at 60-61. Dr.
Sadoff further concluded that, in his opinion, there was no
insanity defense. Thereafter, on the eve of trial and
pursuant to the plea agreement, Paster pled guilty to
second degree murder, and the case entered its sentencing
phase.

In calculating Paster's sentence, the District Judge began
from the base offense level of 33 for second degree murder.
United States Sentencing Guidelines ("U.S.S.G.") S 2A1.2.
He then granted a two-level reduction for acceptance of
responsibility; denied enhancements for premeditation and
use of a weapon; imposed a nine-level upward departure for
extreme conduct; denied a downward departure for
aberrant behavior; denied a downward departure for
victim's conduct; and denied an additional one-level
reduction for acceptance of responsibility. The District
Court calculated an offense level of 40. Having no prior
criminal record, Paster was in criminal history category I,
and therefore subject to a guideline incarceration range of
292-365 months. The District Court imposed the maximum
for the offense level: 365 months, or thirty years and five
months. Paster appeals.

II.

Paster first argues that the District Court erred by
denying his motion for a downward departure pursuant to
S 5K2.10 of the guidelines. That section permits a
downward departure "[i]f the victim's wrongful conduct

                               5
contributed significantly to provoking the offense behavior."
U.S.S.G. S 5K2.10. Paster argued to the District Court that
his wife's revelation of past infidelity exposed wrongful
conduct and was the sole provocation for the fatal stabbing.
The District Court rejected Paster's argument, reasoning
that "[t]here is no confirmation of Paster's [sic] statements
as to any prior affairs," and that "[t]hose allegations even if
true do not indicate that the victim substantially provoked
her murder." United States v. Paster, 17 F. Supp.2d 345,
351 (M.D. Pa. 1998). Thus, the District Court wrote: "Even
though we have the authority to depart for victim
misconduct the conduct of the victim in this case does not
warrant a departure." Id. We review for clear error. United
States v. McQuilkin, 97 F.3d 723, 730 (3d Cir. 1996).

By its terms, S 5K2.10 hinges a departure on two criteria:
1) the victim must have committed "wrongful conduct;" 2)
and such conduct must have "contributed significantly to
provoking the offense behavior." The policy statement
instructs that

       [i]n deciding the extent of a sentence reduction, the
       court should consider: a) the size and strength of the
       victim, or other relevant physical characteristics, in
       comparison with those of the defendant; b) the
       persistence of the victim's conduct and any efforts by
       the defendant to prevent confrontation; c) the danger
       reasonably perceived by the defendant, including the
       victim's reputation for violence; d) the danger actually
       presented to the defendant by the victim; and e) any
       other relevant conduct by the victim that substantially
       contributed to the danger presented.

U.S.S.G. S 5K2.10. By delineating these five factors, the
guidelines contemplates departures where the victim's
conduct posed actual, or reasonably perceived, danger to
the defendant, with emphasis on physical danger. Court
decisions confirm what the context of guideline S 5K2.10
implies: Generally only violent conduct, albeit wrongful,
justifies a downward departure. See Blankenship v. United
States, 159 F.3d 336, 339 (8th Cir. 1998), cert. denied,
1999 WL 8730 (Jan. 11, 1999) (affirming denial of
departure because while conduct was "wrongful," it was not
violent); see also United States v. Bigelow, 914 F.2d 966,

                                6
975 (7th Cir. 1990) (physical blocking of doorway was not
"sufficient physical contact to provoke the attack")
(emphasis added). Cf. United States v. Shortt, 919 F.2d
1325, 1328 (8th Cir. 1990) (embracing idea that "there's
hardly any greater provocation than to have someone
having an affair with your spouse").

The District Court denied a S 5K2.10 departure because
there was no danger or reasonable perception of danger to
Paster. Paster, 17 F. Supp.2d at 351. There is ample record
evidence to support the denial. First, Margaret's size and
strength posed no threat to Paster. Second, Paster himself
initiated the fatal confrontation. Third, the record contains
no suggestion that Margaret had a reputation for violence;
it was the District Court's prerogative to discount danger to
Paster from his wife's friend. In any event, all of the
circumstances -- Paster armed with a knife, attacking his
wife as she emerged from a shower -- demolish his victim
provocation claim.2

The foregoing considered, it was not necessary to decide
whether revelation of past infidelities, or the infidelities
themselves, could ever constitute such "wrongful conduct"
as to mitigate a sentence for murder. However, even if
Margaret's conduct, as revealed moments before the attack,
were wrongful within the meaning of S 5K2.10, Paster's
response was grossly disproportionate to any provocation.3
Shortt, 919 F.2d at 1328 ("A concern for the proportionality
of the defendant's response is manifested by the terms of
S 5K2.10."). See also Blankenship, 159 F.3d at 339; United
States v. Morin, 80 F.3d 124, 128 (4th Cir. 1996) (concern
_________________________________________________________________

2. This analysis easily distinguishes this case from United States v.
Yellow Earrings, 891 F.2d 650 (8th Cir. 1989), where the court of
appeals upheld a downward departure upon consideration of
uncontroverted evidence that the female defendant had refused the
victim's request to engage in sexual intercourse; that the victim was
considerably larger than the defendant; that the victim was intoxicated
and had a history of unpredictable conduct while intoxicated; and that
the defendant reasonably perceived a threat of danger. Id. at 651-54.

3. The District Court found that on earlier occasions Paster had learned
of his wife's infidelity, but that instead of reacting as if he were
physically endangered, he simply "left the marital residence to live with
parents." Paster, 17 F. Supp.2d at 349.

                               7
for proportionality "is evidenced by the factors that
S 5K2.10 instructs the court to consider"). Cf. United States
v. Dailey, 24 F.3d 1323, 1328 (11th Cir. 1994) (affirming
departure for defendant who did not physically harm the
victim); United States v. Tsosie, 14 F.3d 1438, 1442 (10th
Cir. 1994) (affirming departure for defendant who was
engaged in physical altercation with the victim).
Accordingly, we affirm denial of a downward departure
pursuant to S 5K2.10.

III.

Paster next challenges the District Court's refusal to
grant a downward departure for "aberrant behavior." See
U.S.S.G. Ch. 1, Pt. A, intro. comment P 4(d). This court
addressed that ground for departure in United States v.
Marcello, 13 F.3d 752 (3d Cir. 1994), decided before the
Supreme Court's landmark decision in Koon v. United
States, 518 U.S. 81 (1996). Embracing the formula that
originated from the Fourth, Fifth, and Seventh Circuits, the
Marcello court wrote that "[a]berrant behavior must involve
a lack of planning; it must be a single act that is
spontaneous and thoughtless, and no consideration is
given to whether the defendant is a first-time offender." Id.
at 761 (emphasis added). Marcello's construction followed
the Seventh Circuit's opinion in United States v. Carey, 895
F.2d 318, 325 (7th Cir. 1990):

        A single act of aberrant behavior . . . generally
       contemplates a spontaneous and seemingly
       thoughtless act rather than one which was the result
       of substantial planning because an act which occurs
       suddenly and is not the result of a continued reflective
       process is one for which the defendant may be
       arguably less accountable.

Carey, 895 F.2d at 325 (emphasis added).

Invoking Marcello, the District Court found "indications
that the murder was spontaneous" and that there was
"insufficient evidence to show that Paster had planned the
killing of his wife." Paster, 17 F. Supp.2d at 351. However,
the District Court held that "the murder was not committed
in a thoughtless manner," because, the court found, "Paster

                               8
had ample time in the minutes preceding the stabbing to
think about whether to murder his wife," and "the number
of times Paster stabbed his wife indicates that he thought
about the act as it was being done." Id. The District Court
concluded that "[t]here is no authority to depart on the
basis of aberrant behavior under Marcello." Id.

Paster challenges the District Court's construction of the
term "thoughtless" as used by the Marcello court. According
to Paster, the District Court interpreted the term to mean
"without conscious thought" or "without intent," as
distinguished from "without prior thought," "not well
thought-out," or "without premeditation." Appellant's Brief
at 34-35. He argues that this construction of "thoughtless"
would render meaningless the concept of "aberrant
behavior" because most crimes entail a mens rea that
would preclude a finding of "thoughtlessness." Because
Paster argues that the District Court misinterpreted the
legal standard enunciated in Marcello, we exercise plenary
review. United States v. Sokolow, 91 F.3d 396, 411 (3d Cir.
1996). See also United States v. Marin-Castaneda, 134 F.3d
551, 554 (3d Cir. 1998), cert. denied, ___ U.S. ___, 118 S.
Ct. 1855, 140 L. Ed. 2d. 1103 (1998); United States v.
Grandmaison, 77 F.3d 555, 561 (1st Cir. 1996)
(undertaking plenary review because district court "adopted
the wrong standard").

We decline to upset the District Court's decision rejecting
departure. The District Court applied the correct legal
standard by properly focusing on the term "thoughtless,"
because Marcello made thoughtlessness a necessary
ingredient of aberrant behavior. 13 F.3d at 761. 4
_________________________________________________________________

4. The government argues that because Paster pled guilty to a crime
defined as one committed "willfully, deliberately, maliciously" and with
"malice aforethought," he necessarily is not eligible for a departure
based
on "thoughtless" activity. The government argues alternatively that
Paster does not qualify for a departure because infliction of sixteen stab
wounds and eleven slash wounds does not constitute "a single act"
within the meaning of Marcello. We need not reach the former argument
because we are satisfied that the District Court applied the proper
standard pursuant to Marcello, and we need not reach the latter
argument because the District Court's finding that Paster's conduct was
not "thoughtless" makes the single act issue redundant.

                               9
Specifically, the District Court found that Paster "had
ample time in the minutes preceding the stabbing to think
about whether to murder his wife," and that "the number of
times Paster stabbed his wife indicates that he thought
about the act as it was being done." Paster, 17 F. Supp.2d
at 351 (emphasis added). These penultimate findings amply
support the ultimate finding that the murder was not
"thoughtless." Nor does the failure of the District Court to
make an additional ultimate finding about a "continued
reflective process" constitute reversible error in the context
of this case. Marcello, 13 F.3d at 761 (quoting Carey, 895
F.2d at 325). The District Court's finding about the "ample
time in the minutes preceding the stabbing" and the
multiple stabbings convey the Marcello concept of a
continuum, as distinguished from a mere "opportunity to
consider [the] crime." Diss. Opp. at 28 (emphasis in
original). Also, the term "reflective" used in Marcello clearly
imports the concept of "thoughtful," the antonym of
"thoughtless." See Webster's Third New International
Dictionary 2381 (1971).5

In view of the foregoing, the District Court's finding that
Paster's conduct was not "thoughtless" was not clearly
erroneous, and its application of the Marcello standard
supported the conclusion that on these facts Paster was not
entitled to an aberrant conduct departure. Cf. Marcello, 13
F.3d at 761 (district court's decision "not to depart, after
applying the correct legal standard, is discretionary and
unreviewable"). Cases from other circuits that affirmed
denial of an aberrant behavior departure, and that pre-date
the Supreme Court's opinion in Koon, 518 U.S. 81, see,
e.g., United States v. Garlich, 951 F.2d 161 (8th Cir. 1991),
United States v. Glick, 946 F.2d 335 (4th Cir. 1991), do not
hold otherwise. Thus, the District Court's statement that it
had "no authority to depart on the basis of aberrant
_________________________________________________________________

5. The Marcello barrier to consideration in an aberrant behavior context
of whether subsequent violence is "out of character" or a "first offense,"
Marcello, 13 F.3d at 761 (quoting Carey, 895 F.2d at 325), precludes
consideration here of the apparent fact that Paster had no history of
domestic, or any other kind, of violence, and that indeed he had reacted
passively when his wife and her paramour separatelyflaunted their affair
before him. Cf. Diss. Op. at 30.

                               10
behavior under Marcello," Paster, 17 F. Supp.2d at 351,
may fairly be construed as nothing more than a conclusion
that the facts of this case applied to the principles
announced in Marcello do not qualify Paster for an aberrant
behavior departure. Accordingly, we affirm denial of a
departure for aberrant behavior.

We would reach the same result were we to test our
analysis by direct reference to Koon. Koon established that
a sentencing court considering a departure mustfirst ask,
"What features of this case, potentially, take it outside the
Guidelines' `heartland' and make of it a special, or unusual,
case?" 518 U.S. at 95 (citation omitted). Once a court
identifies a "special" feature, it is directed to assess whether
the Guidelines forbid, encourage, discourage, or fail to
mention a departure based on that feature. Id. at 95-96.
The answer to this second inquiry shapes the remaining
analysis:

        If the special factor is a forbidden factor, the
       sentencing court cannot use it as a basis for departure.
       If the special factor is an encouraged factor, the court
       is authorized to depart if the applicable Guideline does
       not already take it into account. If the special factor is
       a discouraged factor, or an encouraged factor already
       taken into account by the applicable Guideline, the
       court should depart only if the factor is present to an
       exceptional degree or in some other way makes the
       case different from the ordinary case where the factor
       is present. If a factor is unmentioned in the Guidelines,
       the court must, after considering the structure and
       theory of both relevant individual guidelines and the
       Guidelines taken as a whole, decide whether it is
       sufficient to take the case out of the Guideline's
       heartland. The court must bear in mind the
       Commission's expectation that departures based on
       grounds not mentioned in the Guidelines will be highly
       infrequent.

Id. (citations and internal quotation marks omitted)
(emphasis added).

Aberrant behavior is an "unmentioned factor." See United
States v. Kalb, 105 F.3d 426, 429 (8th Cir. 1997). So here,

                               11
the District Court relied entirely upon the Marcello
definition of the term. Having determined that Paster's
behavior was not aberrant within the meaning of Marcello,
the District Court had no occasion to attempt to extrapolate
from "the structure and theory of both relevant individual
guidelines and the Guidelines taken as a whole" whether
Paster's behavior was "sufficient to take the case out of the
[second degree murder guideline's (S 2A1.2)] heartland."
Koon, 518 U.S. at 96. The District Court's analysis
therefore was consistent with both Marcello and with the
Koon Court's caution that departures relying on
unmentioned factors should be "highly infrequent." Id.
Accordingly, we affirm denial of a departure for aberrant
behavior.

IV.

Paster next argues that, even though the District Court
granted him a two-level adjustment for acceptance of
responsibility, it erred by denying his motion for an
additional one-level adjustment pursuant to S 3E1.1 of the
guidelines. That section provides that a defendant is
entitled to an additional one-level decrease if he qualifies
for a two-level decrease for acceptance of responsibility, his
offense level is sixteen or greater, and he

        has assisted authorities in the investigation or
       prosecution of his own misconduct by taking one or
       more of the following steps: (1) timely providing
       complete information to the government concerning his
       own involvement in the offense; or (2) timely notifying
       authorities of his intention to enter a plea of guilty,
       thereby permitting the government to avoid preparing
       for trial and permitting the court to allocate its
       resources efficiently.

U.S.S.G. S 3E1.1(b) (emphasis added). There is no dispute
that Paster met the first two criteria of S 3E1.1: The District
Court awarded him a two-level reduction for acceptance of
responsibility and his offense level was greater than
sixteen. The District Court concluded, however, that Paster
did not qualify for the additional one-level reduction
because his decision to plead guilty after the jury was

                               12
selected did not constitute timely notification within the
meaning of S 3E1.1(b)(2). Paster, 17 F. Supp.2d at 353.

Paster appeals this determination. First, he argues that
although the District Court considered whether he timely
notified the government of his intent to plead guilty, it
failed to consider whether he timely provided complete
information concerning his involvement in the crime. Paster
argues further that his statements to the Bureau of Prisons
personnel who responded to his call to 911 support a
finding that he timely provided complete information
concerning his involvement in the crime -- and therefore
should have received the additional one-level reduction.
Because Paster contends that the District Court committed
legal error, we review de novo. United States v. Maurello, 76
F.3d 1304, 1308 (3d Cir. 1996).

We are persuaded that Paster has the better of this
argument. The third prong of S 3E1.1(b) is in the
disjunctive. United States v. Lancaster, 112 F.3d 156, 158
(4th Cir. 1997); United States v. Williams, 86 F.3d 1203,
1206 (D.C. Cir. 1996); United States v. Eyler, 67 F.3d 1386,
1391 (9th Cir. 1995). By its plain terms, it is satisfied if the
defendant "has assisted authorities in the investigation or
prosecution of his own misconduct by taking one or more of
the following steps: (1) timely providing complete
information to the government concerning his own
involvement in the offense; or (2) timely notifying
authorities of his intention to enter a plea of guilty . . . ."
U.S.S.G. S 3E1.1(b) (emphasis added). The District Court
considered only whether Paster satisfied the latter criterion,
not whether he satisfied the former. Paster, 17 F. Supp.2d
at 353. Accordingly, the District Court erred as a matter of
law by failing to apply S 3E1.1(b)'s disjunctive standard.
Maurello, 76 F.3d at 1308.

The government argues that even if the District Court
erred, Paster still is not entitled to the additional one-level
reduction because "throughout the investigation .. . and
continuing through his interview with the Probation Officer
. . ., [he] continually attempted to minimize his role in the
offense." Appellee's Brief at 27-28 (emphasis in original).
For example, the government alludes to evidence that
Paster initially told investigators that he did "not

                                13
remember" much of what happened -- belied, the
government says, by his admissions to the emergency
operator -- and that he "did not want to talk about it." Id.
at 28. The government also cites psychiatric reports and
the presentence investigation report, which purportedly
document that Paster attempted to ascribe blame for the
killing to his wife's revelation of infidelity.

The government's argument cannot cure the District
Court's failure to focus on and make findings with respect
to S 3E1.1(b)(1). See U.S.S.G. S 3E1.1 app. note 5. See also
United States v. Marroquin, 136 F.3d 220, 223 (1st Cir.
1998); United States v. Ortiz, 63 F.3d 952, 955-56 (10th
Cir. 1995). On the other hand, the record contains evidence
that supports an additional one-level reduction. For
example, the District Court found that Paster called 911,
reported that he had stabbed his wife, provided directions
to his home and the location of the weapon, remained on
the phone until authorities arrived, and cooperated with
authorities while the crime scene was investigated. Paster,
17 F. Supp.2d at 347-49. The District Court also concluded
that "Paster has never denied that he stabbed and killed his
wife." Id.6 While the District Court found that Paster "was
unable to remember many of the details of the murder"
when questioned by FBI agents, id. at 348, the
government's psychiatrist concluded that Paster suffered
from dissociative amnesia, App. at 60, an opinion that
supports a finding of genuine memory loss rather than
obdurate or unhelpful conduct. Finally, that the
government may have been able to learn of Paster's offense
independent of his assistance does not preclude an
additional one-level reduction, United States v. Stoops, 25
F.3d 820, 822-23 (9th Cir. 1994); neither does the fact that
Paster filed a motion to suppress. Id. The District Court's
findings establish that no reasonable trier of fact could
conclude that Paster was not entitled to an additional one-
level reduction. See, e.g., United States v. Eyler, 67 F.3d
1386, 1392 (9th Cir. 1995). Accordingly, we reverse and
_________________________________________________________________

6. This finding serves to distinguish this case from United States v.
Chee,
110 F.3d 1489 (9th Cir. 1997), where the court affirmed denial of the
additional one-point reduction because the defendant consistently denied
certain alleged conduct. Id. at 1494.

                               14
remand for Paster to be resentenced to reflect an additional
one-level reduction in his offense level.

V.

Paster's final, and most extensive, challenge is a multi-
pronged one to the nine-level upward departure pursuant
to Sentencing Guidelines S 5K2.8, "Extreme Conduct." That
section authorizes an upward departure "[i]f the defendant's
conduct was unusually heinous, cruel, brutal, or degrading
to the victim." U.S.S.G. S 5K2.8. The guideline explains that
"[e]xamples of extreme conduct include torture of a victim,
gratuitous infliction of injury, or prolonging of pain or
humiliation." Id. Here, after summarizing the evidence, the
District Court concluded that some "upward departure
based upon Paster's unusually heinous, cruel, and brutal
conduct is warranted." Paster, 17 F. Supp.2d at 349-50. It
then imposed a nine-level upward departure. Id. at 350.
The departure increased the adjusted guideline range from
108-135 months to 292-365 months. The top-of-the-range
365-month sentence actually imposed is 213.5 months
greater than the median of the range for base second
degree murder (135-168 months), to which Paster pled
guilty. As contemplated by then-Judge Becker's seminal
opinion in United States v. Kikumura, 918 F.2d 1084 (3d
Cir. 1990), we appraise the level of proof required by the
district court, the propriety of any departure, and the
reasonableness of its term. Id. at 1098.

A.

Paster first argues that the District Court erred by not
articulating and applying a clear and convincing burden of
proof to support the nine-level upward departure. In
support of this claim, Paster cites Kikumura, 918 F.2d
1084, which established that when a departure "is
sufficiently great that the sentencing hearing can be fairly
characterized as `a tail which wags the dog of the
substantive offense,' . . . the factfinding underlying that
departure must be established at least by clear and
convincing evidence." Id. at 1101 (quoting McMillan v.
Pennsylvania, 477 U.S. 79, 88 (1986)). See also United

                               15
States v. Murray, 144 F.3d 270, 275 (3d Cir. 1998), cert.
denied, ___ U.S. ___, 119 S. Ct. 254, 142 L. Ed. 2d 209
(1998). The government concedes that the magnitude of the
departure here imposed, compared to a base second degree
murder sentence, requires clear and convincing evidence,
and that the District Court did not expressly recite the clear
and convincing formula; it argues, nonetheless, that the
evidence met the requisite legal standard. We agree:
Incantation of the term "clear and convincing" was not
necessary on this record. Kikumura, 918 F.2d at 1104.

Paster contends that the District Court not only failed to
recite the proper standard; it failed to prove by clear and
convincing evidence that his conduct was unusually
heinous, cruel, brutal, or degrading to the victim. This
argument is unconvincing. Paster never repudiated his
prior admissions that he killed his wife. Nor did he dispute
the extensive and gory evidence concerning the killing,
including the expert pathologist's extensive and
uncontradicted testimony about the sixteen stab wounds,
the eight to nine penetrations of the heart area, and the
eleven incisive wounds that Paster inflicted on his wife.
Paster, 17 F. Supp.2d at 348-49. See App. at 189 ("This
was one of the most severe cases I've seen."). This
unchallenged evidence was clear and convincing proof of
"extreme conduct." Kikumura, 918 F.2d at 1101.7

B.

Paster next argues that the District Court erred by
enhancing his sentence for extreme conduct because the
Sentencing Commission regarded second degree murder,
per se, as unusually heinous, cruel, and brutal and
established guidelines that adequately punish perpetrators
on that assumption. According to Paster, the unusually
heinous, cruel, and brutal character of his conduct was
reflected in S 2A1.2, the guideline for second degree
_________________________________________________________________

7. Citing Beardshall v. Minuteman Press International, Inc., 664 F.2d 23,
26-27 (3d Cir. 1981), Paster argues that the District Court committed
plain error by not reciting the clear and convincing formula. In
Beardshall, the district judge failed to instruct the jury on the
applicable
burden of proof, quite a different matter.

                               16
murder, and in the offense level there established. His
argument finds tangential support in this court's
observation in Kikumura, 918 F.2d at 1118, that the
attempted murder guideline "plainly accounts for the fact
that attempted murder, by its very nature, involves heinous
conduct." Id. The government counters that the District
Court's specific factual findings support a determination
that by any definition Paster's conduct was unusually
heinous, cruel, and brutal. Again, we find ample support
for the government's position.

By now it is familiar that when a factor is an
"encouraged" basis for departure, the task of the sentencing
court is to determine whether that factor is taken into
account by the relevant guideline. Koon v. United States,
518 U.S. 81, 96 (1996). Unusually heinous, cruel, brutal, or
degrading conduct is an encouraged factor under S 5K2.8,
so the court below was obligated to assess whether
unusually heinous, cruel, brutal, or degrading conduct is
within the heartland of conduct encompassed by S 2A1.2.
Id. at 93-96. Ordinarily, a determination of "[w]hether a
given factor is present to a degree not adequately
considered by the Commission" will be made "in large part
by comparison with the facts of other Guidelines cases." Id.
at 98. Because of the "institutional advantage" of district
courts in making such factual determinations, appellate
courts accord considerable deference to their departure
decisions, limiting review on appeal to abuse of discretion.
Id. at 98-100.

We are satisfied that the District Court exercised
appropriate discretion in determining that Paster's conduct
was sufficiently more heinous than conduct that
constitutes the so-called "heartland" of second degree
murders. Id. at 93-94. The judge specifically noted, for
example, that Paster stabbed Margaret sixteen times with a
butcher knife, that eight or nine of the wounds penetrated
the heart area, that ten of the wounds were immediately
life-threatening, and that Paster also inflicted eleven
incisive wounds. Paster, 17 F. Supp.2d at 349. The judge
also observed photographs of the victim that "graphically
demonstrate the heinous and extreme nature of Paster's
crime." Id. While the judge did not compare Paster's case

                               17
with other second degree murders, the gripping detailed
testimony effectively demonstrates that Paster's crime was
unusually violent and brutal. We are satisfied that the
District Court did not abuse its discretion in deciding to
depart for extreme conduct. See United States v. Murray,
144 F.3d 270, 275 n.7 (3d Cir. 1998), cert. denied, ___ U.S.
___, 119 S. Ct. 254, 142 L. Ed. 2d 209 (1998).

C.

In approving an extreme conduct departure, we do not
overlook Paster's argument that the departure was literally
inappropriate because his conduct matched none of the
specific examples delineated by S 5K2.8:"torture of a
victim, gratuitous infliction of injury, or prolonging of pain
or humiliation." U.S.S.G. S 5K2.8. Paster argues that this
list of examples is exhaustive, citing United States v. Kelly,
1 F.3d 1137 (10th Cir. 1993). However, the Kelly court
ruled only that by articulating specific examples of
unusually heinous, cruel, brutal, or degrading conduct,
S 5K2.8 provides "objective standards for its application."
Id. at 1143. This is a far cry from a ruling that the three
examples listed in the guideline constitute the universe of
conduct condemned by that section. Indeed, the guideline
itself identifies these three examples as just that: non-
exclusive examples. ("Examples of extreme conduct include
. . . ." U.S.S.G. S 5K2.8 (emphasis added)). Paster's conduct
was extreme even if it was not specifically branded with one
of the three illustrative labels provided in S 5K2.8.

As a second prong of his challenge to the extreme
conduct finding, Paster argues that his crime was no more
heinous, cruel, or brutal than that recorded in six other
cases. As an example, Paster again cites Kelly, 1 F.3d 1137,
where the defendant choked the victim to unconsciousness,
beat the victim with a tire iron, struck the victim in the
neck with a jack handle, and dumped the victim's body in
a pond. Id. at 1138. See also United States v. Herrera, 70
F.3d 444, 445 (7th Cir. 1995); United States v. Anderson, 5
F.3d 795, 796-97 (5th Cir. 1993); United States v. Luscier,
983 F.2d 1507, 1509 (9th Cir. 1993); United States v.
Phillip, 948 F.2d 241, 244 (6th Cir. 1991); United States v.
Roberson, 872 F.2d 597, 600 (5th Cir. 1989). While one

                               18
cannot gainsay the brutality of the conduct perpetrated in
these cases, it hardly follows that Paster's conduct was less
deserving of being branded "extreme."

Even if true, however, the fact that other cases involved
conduct arguably more heinous, cruel, and brutal than
Paster's by no means proves that the District Court abused
its discretion by concluding that Paster's conduct was
outside the heartland of second degree murder cases.
Murray, 144 F.3d at 275 n.7. In fact, the judge made
explicit findings about the heinous, cruel, and brutal
nature of Paster's offense -- particularly supported by the
pathologist's testimony that it was one of the most severely
violent deaths he had ever documented, 17 F. Supp.2d at
349 -- thereby demonstrating an awareness of the relevant
standard and a commitment to undertake a departure only
when warranted. All of the foregoing considered, we affirm
the District Court's decision to enhance Paster's sentence
for extreme conduct.

D.

Having concluded that the District Court did not abuse
his discretion by awarding a departure for extreme conduct,
we turn to Paster's final argument: that the nine-level
upward departure, which increased by more than seventeen
years the applicable median sentence, was unreasonable.
The Sentencing Commission established a 243-month
spread between the median sentence for first degree
murder adjusted by a two-level reduction for acceptance of
responsibility (364.5) and the median sentence for second
degree murder adjusted for the same two-point reduction
(121.5).8 Yet the sentence levied in this second degree
murder case is equal to what would be a heavy first degree
murder sentence. This aspect of the sentence here imposed
gives us pause.
_________________________________________________________________

8. At base offense level 43, first degree murder carries a sentence of
life
imprisonment; adjusted two levels for acceptance of responsibility, the
crime yields an incarceration range of 324-405 months. Second degree
murder, which has a base offense level 33, produces an incarceration
range of 135-168 months; the range drops to 108-135 months when the
offense level is adjusted two levels for acceptance of responsibility.

                               19
"Our review of the sentencing court's decision in this
regard is deferential," United States v. Baird, 109 F.3d 856,
872 (3d Cir. 1997), cert. denied, ___ U.S. ___, 118 S. Ct.
243, 139 L. Ed. 2d 173 (1997), but this court relies upon
"objective standards to guide the determination of
reasonableness" -- including analogies within the
guidelines themselves, Kikumura, 918 F.2d at 1110-13, and
the guidance afforded by the statutory scheme that they
implement. In this case, the District Court concluded, and
both parties acknowledge, that "there are no provisions in
the guidelines which suggest an analogy from which to
determine the appropriate level of upward departure."
Paster, 17 F. Supp.2d at 350. Nor does our independent
search for such analogies yield a plausible one.9

Paster proposes as an alternative approach an increase of
the offense level by analogy to the defendant's criminal
history category. See, e.g., United States v. Ferra, 900 F.2d
1057, 1061-64 (7th Cir. 1990). He notes that even at
Category VI -- the maximum -- his pre-departure offense
level of 31 would yield an incarceration range of 188-235
months, some 104-130 months fewer than he actually
received.

We find the criminal history analogy inappropriate here.
As the Kikumura court observed, guidelineS 4A1.3 permits
a departure "[i]f reliable information indicates that the
criminal history category does not adequately reflect the
seriousness of the defendant's past criminal conduct or the
likelihood that the defendant will commit other crimes
. . . ." 918 F.2d at 1112. In this case, the government did
not argue, and the District Court did not find, that Paster's
criminal history category misrepresented the seriousness of
his past criminal conduct (there was no record of any), or
the likelihood that he would engage again in the arguably
_________________________________________________________________

9. For example, S 2A2.1 and S 2A2.12 of the guidelines fix 28 and 16 as
the base offense levels for assault with intent to commit murder and
aggravated assault, respectively. Each offense is subject to specific
upward adjustments for particular offense characteristics, such as five
levels for aggravated assault if a firearm is used. Neither these specific
offenses, nor the scheduled adjustments, provide a useful analogy to the
extreme conduct departure which is to be measured here.

                               20
aberrant conduct at issue here. Our appraisal of the record
confirms these conclusions.

Finding no acceptable analogy in the guidelines, the
District Court surveyed what it considered to be analogous
case law. The District Judge collected two cases that
approved five-level upward departures, see Herrera, 70 F.3d
444, Kikumura, 918 F.2d at 1113, one decision that
affirmed a ten-level upward departure, United States v.
Pergola, 930 F.2d 216 (2d Cir. 1991), and one that upheld
an eleven-level upward departure, Roberson, 872 F.2d 597.
From these raw numbers ranging from five to eleven the
District Court extrapolated nine. Paster argues that the
four cases cited by the District Court are inapposite
because they involved more severe offenses, and because
the upward departures were based only in part on the
respective defendants' "extreme conduct." The government
defends the District Court's approach, and at oral
argument directed us to United States v. Morrison, 153 F.3d
34 (2d Cir. 1998), where the court upheld a fourteen-level
upward departure.

Guidelines construct a bare framework for sentencing
decisions, and the interstices permit courts to use a
common law approach to fashion particular sentences.
However, notwithstanding the substantial deference owed
the District Court, we have two problems with the case law
methodology used here. First, the District Court cited the
several cases without critical analysis of the particular
extreme conduct and other grounds for departure in those
cases compared with the nine-level departure here solely for
extreme conduct; the District Court simply concluded"that
a nine level upward departure for Paster's extremely brutal
conduct is warranted." Paster, 17 F. Supp.2d at 350.

We question whether on closer analysis extrapolation
from the sentences imposed in the four cases referenced by
the District Court -- and the fifth cited by the government
at oral argument -- would support a nine-level extreme
conduct departure here. For example, in Roberson, 872
F.2d 597, the court affirmed an eleven-level departure, but
recognized that the district court based the upward
departure on three discrete grounds, only one of which was
extreme conduct pursuant to S 5K2.8. Id. at 602. See also

                               21
Morrison, 153 F.3d at 51 (affirming fourteen-level departure
that was an accumulation of separate two- and three-level
enhancements linked to consequences suffered by ten
different victims). The Pergola court approved a ten-level
departure based, not upon "extreme conduct" (S 5K2.8), but
upon "extreme psychological injury" (S 5K2.3). Pergola, 930
F.2d at 218. Finally, both Kikumura and Herrera involved
upward departures that were only five levels, and
authorized by more than one guideline. Kikumura, 918 F.2d
at 1119; Herrera, 70 F.3d at 447. We are not satisfied that
these cases adequately justify the nine-level upward
departure at issue here.

There remains the question raised by the convergence of
the sentence imposed here with the guidelines' prescription
for first degree murder. To recapitulate, Paster was indicted
for first degree murder, the elements of which are "the
unlawful killing of a human being with malice
aforethought." 18 U.S.C. S 1111(a). After the District Court
denied Paster's suppression motion, Paster agreed to, and
the court accepted, a plea of guilty to second degree
murder. The guilty plea spared Paster, his family, the
family of his late wife, the government, and the court from
the anguish which trial of this ugly case would have
entailed; it also reduced the severity of the applicable
sentence range to which Paster was exposed. See 18 U.S.C.
S 1111(b). See also U.S.S.G. SS 2A1.1, 2A1.2. In the
colloquy about the plea agreement, the probation officer
and the government advised that the likely sentencing
range would be 168-210 months, a range consistent with
base second degree murder and a two-level enhancement.
Tr. of hearing of 11/19/97, at 13-14.

The statutory maximum for both first and second degree
murder is life imprisonment, except that in special
circumstances the death penalty may be imposed upon a
person convicted of first degree murder. 18 U.S.C.
S 1111(b). However, the guideline range for a defendant
guilty of first degree murder with a criminal history of I
who, after a two-point reduction for acceptance of
responsibility has an offense level of 41, is 324-405 months
imprisonment. The guideline range for a defendant guilty of
second degree murder with a criminal history of I and a

                               22
two-point reduction for acceptance of responsibility is 108-
135 months imprisonment.

A prime objective of the Sentencing Guidelines was to
eliminate or, at least reduce, disparity in the sentencing of
similarly situated defendants. See U.S.S.G. Ch. 1, Pt. A, 3.
As the Sentencing Commission has stated, "Congress
sought reasonable uniformity in sentencing by narrowing
the wide disparity in sentences imposed for similar criminal
offenses committed by similar offenders." Id. As a corollary
of this guideline policy, however, the Commission
recognized that defendants differently situated should
suffer different sentences because "Congress sought
proportionality in sentencing through a system that
imposes appropriately different sentences for criminal
conduct of differing severity." Id. See also United States v.
Katora, 981 F.2d 1398, 1411 n.12 (3d Cir. 1992) (Becker,
J., concurring in part and dissenting in part) ("The notion
of disparity comprehends not only treating similarly
situated defendants differently, but also treating defendants
who are dissimilarly situated in some relevant way the
same."). "Often the best way to test whether a particular
degree of departure is appropriate is to use other provisions
of the Guidelines as benchmarks." Herrera, 70 F.3d at 446.

The vice of the nine-level upward departure imposed on
Paster is that he has incurred for second degree murder a
sentence that would be appropriate for first degree murder
adjusted two levels for acceptance of responsibility. Thus, if
the government had required Paster to plead guilty to first
degree murder in order to escape the death penalty, 10 and
he enjoyed a two-level reduction for acceptance of
responsibility (as he did here), he would have faced a
sentence in the range of 324-405 months,11 the median of
_________________________________________________________________

10. While the record reflects only that the government ultimately decided
not to seek the death penalty, see App. at 119-20, 319, it had statutory
authority to do so. 18 U.S.C. S 1111(b).

11. First degree murder carries a base offense level of 43; assuming a
two-level reduction for acceptance of responsibility, an offense level of
41
yields a sentence of 324-405 months for a defendant in criminal history
category I. The applicable range would drop to 292-365 months if a
three-point reduction for acceptance of responsibility were awarded. See
supra IV.

                               23
which is the actual sentence that Paster received. 12 This
lack of disparity between Paster's actual sentence and one
he could have received had he pleaded guilty to, or been
convicted of, a more serious crime distorts proportionality,
a critical objective of the Sentencing Guidelines. See
U.S.S.G. Ch. 1, Pt. A, 3.

VI.

       Accordingly, we will affirm the District Court's denial of
departures for aberrant behavior and victim provocation.
However, we will remand for resentencing to reflect an
additional one-level reduction for acceptance of
responsibility. We also will remand with directions to the
District Court to reconsider the nine-level upward
departure for extreme conduct after closer examination of
the relevant court decisions and for consideration of the
proportionality concerns raised by the coincidence of the
second degree murder sentence and the prescribed
sentence for first degree murder.
_________________________________________________________________

12. Had Paster pursued an insanity defense, as he originally intended,
been convicted of first degree murder, and received a two-point reduction
for acceptance of responsibility, he likewise would have been exposed to
an incarceration range of 324-405 months. See U.S.S.G. S 3E1.1,
comment 2 ("Conviction by trial . . . does not automatically preclude a
defendant from consideration for [an acceptance of responsibility]
reduction."). See also United States v. Fells, 78 F.3d 168, 172 (5th Cir.
1996); United States v. Barris, 46 F.3d 33, 35 (8th Cir. 1995)
("[D]efendant who goes to trial on an insanity defense, thus advancing an
issue that does not relate to his factual guilt, may nevertheless qualify
for an acceptance-of-responsibility reduction").

                               24
SLOVITER, Circuit Judge, concurring.

I join in Parts I through IV of the opinion. I also concur
in Part V, but note that I would ordinarily agree with the
government with respect to the nine-level upward
departure. The District Court's decision to depart is entitled
to great deference. As the Court stated in Koon v. United
States, 518 U.S. 81 (1996), "[a] district court's decision to
depart from the Guidelines . . . will in most cases be due
substantial deference, for it embodies the traditional
exercise of discretion by a sentencing court." Id. at 98. See
also United States v. Kikumura, 918 F.2d 1084, 1110 (3d
Cir. 1990). However, here the majority has raised an issue
as to the relationship between the Guideline governing first-
degree murder and that governing second-degree murder
that fairly requires some further attention by the District
Court. Therefore, I concur with its decision to remand, as
long as it is understood that the District Court retains the
discretion to depart upwards nine levels again should it
fully explain why it determined to do so.

                               25
COWEN, Circuit Judge, concurring in part, and dissenting in
part.

I join in all of the majority's opinion except for Part III,
which affirms the District Court's denial of Paster's motion
for a downward departure based on aberrant behavior.
Because the District Court's refusal to depart on that
ground was predicated on a misapprehension of the
applicable legal standard for an aberrant behavior
departure, I would remand for re-sentencing so that the
District Court could reconsider the motion under the
correct standard.

In United States v. Marcello, 13 F.3d 752 (3d Cir. 1994),
this court, consistent with every other circuit court to have
considered the issue, recognized that the Guidelines permit
a sentencing court to downwardly depart in a case where a
defendant's criminal conduct can fairly be characterized as
a "single act[ ] of aberrant behavior." Id. at 760 (quoting
U.S.S.G. Ch. 1, Pt. A, intro. comment P 4(d)). The courts of
appeal are not in agreement, however, as to the correct
definition of aberrant behavior. A minority of circuits have
adopted a "totality of the circumstances test" that, as its
name implies, allows a sentencing court to consider a
multitude of factors, including a defendant's lack of a
criminal record and his prior good deeds, in assessing
whether a downward departure for aberrant behavior is
appropriate. See Zecevic v. United States Parole
Commission, 163 F.3d 731, 734-35 (2d Cir. 1998); United
States v. Grandmaison, 77 F.3d 555, 564 (1st Cir. 1996).1
Under the totality test, as explained by its proponents,
" `when all is said and done, the conduct in question must
truly be a short-lived departure from an otherwise law-
abiding life.' " Id. at 735 (quoting United States v. Colace,
126 F.3d 1229, 1231 (9th Cir. 1992)).
_________________________________________________________________

1. The Zecevic court listed the following factors that courts have
considered in applying totality of the circumstance test: "(1) the
singular
nature of the criminal act; (2) the defendant's criminal record; (3)
psychological disorders form which the defendant was suffering at the
time of the offense; (4) extreme pressures under which the defendant
was operating; (5) letters from friends and family expressing shock at the
defendant's behavior; and (6) the defendant's motivations in committing
the crime." 163 F.3d at 735.

                               26
We considered and rejected the totality approach in
Marcello. We reasoned that a defendant's criminal history,
or lack thereof, is already incorporated into the Guidelines'
sentencing formula, and that it would be inappropriate to
factor it in once again under the guise of aberrant behavior.
Marcello, 13 F.3d at 761.2 Instead, we adopted the majority
view, first articulated by the Seventh Circuit in United
States v. Carey, 895 F.2d 318, 325 (7th Cir. 1990), which
focuses the aberrant behavior inquiry on the criminal
conduct itself, not on a defendant's "high standing in the
community and his lack of prior conviction." Carey, 895
F.2d at 324. Under this approach, a sentencing court
considering an aberrant behavior departure must decide
whether a defendant's criminal behavior was " `a
spontaneous and seemingly thoughtless act rather than one
which was the result of substantial planning.' " Marcello, 13
F.3d at 761 (quoting Carey, 895 F.2d at 325). The reason
for focusing on whether a defendant's criminal act is
spontaneous and unplanned is that " `an act which occurs
suddenly and is not the result of a continued reflective
process is one for which the defendant may be arguably
less accountable.' " Id. Applying this standard in Marcello,
we affirmed the district court's conclusion that the
defendant, who over a one-week period structured bank
deposits to evade currency transaction reporting
requirements, was not entitled to an aberrant behavior
departure because some pre-planning was required to
commit the offense. Id. Similarly, in Carey, the Seventh
Circuit held that an aberrant behavior departure was not
allowed where the defendant had engaged in a check-kiting
scheme over a fifteen-month period. 895 F.2d at 324 35.
See also United States v. Glick, 946 F.2d 335 (4th Cir.
1991) (no aberrant behavior departure where defendant
sent five separate letters containing misappropriated
information over the course of ten weeks); United States v.
Garlich, 951 F.2d 161 (8th Cir. 1991) (no aberrant behavior
_________________________________________________________________

2. This conclusion has since been bolstered by the Supreme Court's
recognition in Koon v. United States, 518 U.S. 81, 113 (1996), that the
Guidelines specifically prohibit a downward departure on the ground
that a Criminal History Category I fails to reflect a particular
defendant's
low likelihood of recidivism.

                               27
where defendant planned and executed a fraudulent
financing scheme over a one-year period).

In stark contrast to those cases, all of which involved
offenses that had been planned for days, weeks or even
months, in this case the District Court found as a matter
of fact that "[u]p until a few minutes prior to the stabbing,
Paster had no plan to kill his wife." Paster, 17 F. Supp. 2d
345, 348 (M.D. Pa. 1998). The court also noted that "there
are indications that the murder was spontaneous." Id. at
351. Despite these findings, however, the District Court
concluded that it did not have the authority to depart for
aberrant behavior. The court explained:

       The murder was not committed in a thoughtless
       manner. Thoughtlessness is an essential element
       under Marcello, Thoughtfulness [sic] is missing in this
       case. Paster had ample time in the minutes preceding
       the stabbing to think about whether to murder his
       wife. Further, the number of times Paster stabbed his
       wife indicates that he thought about the act as it was
       being done. There is no authority to depart on the
       basis of aberrant behavior under Marcello. We will deny
       Paster's request for a departure on the basis of
       aberrant behavior.

Id.

The problem with this reasoning is that, under the
District Court's definition of the term "thoughtless," a
defendant who has any opportunity to consider his crime,
no matter how fleetingly, would be ineligible for a departure
based on aberrant behavior. Were this a correct statement
of law, however, there would be no point in having an
aberrant behavior departure in the first place because no
defendant would ever qualify for it, save perhaps a
hypothetical one concocted for a law school examination. In
real life, those who commit crimes almost always have
some opportunity, even if for only a minute or two, but
typically much longer than that, to consider their actions.
See Zecevic, 163 F.3d at 734 ("If actions taking place over
such a short period can be deemed to include sufficient
planning and preparation to remove them from the realm of
the `spontaneous and thoughtless,' this standard is limited
indeed.").

                               28
Consider, for instance, the defendant in United States v.
Russell, 870 F.2d 18 (1st Cir. 1989), a case which is often
cited as an "excellent example" of aberrant behavior,
particularly among those courts employing the
"spontaneous and thoughtless" test. See , e.g, Carey, 895
F.2d at 325. The defendant was a Wells Fargo armored
truck driver and his partner was the truck's messenger. A
bank mistakenly gave the pair an extra bag of money
containing $80,000, which both men, yielding to
temptation, decided to keep for themselves. A week later,
however, Russell confessed the crime, returned the money
that he had kept, and cooperated with authorities. Under
the definition of "thoughtless" adopted by the District
Court, Russell would have been ineligible for an aberrant
behavior departure because he undoubtedly had some
opportunity, though perhaps not very long, to contemplate
whether or not to keep the bank's money.

In my view, the "spontaneous and thoughtless" test does
not require sentencing courts to literally determine whether
a defendant, at any time prior to his offense, had time to
think about his criminal conduct. The answer to that
question will invariably be yes. Instead, the test asks more
generally whether the defendant's crime was the product of
planning and deliberation or, as we stated in Marcello, "a
continued reflective process." 13 F.3d at 761 (quoting
Carey, 895 F.2d 325). If it was, then an aberrant behavior
departure will be unavailable. If it was not, a district court
should retain the discretion to depart. See United States v.
Winters, 105 F.3d 200 (5th Cir. 1997) (noting that "one
isolated assault" could be considered aberrant behavior,
but not a subsequent effort to conceal the offense by
coercing a witness to give false testimony). Applying that
test to the facts of this case -- where the defendant did not
plan the murder, the entire episode took place over the
course of no more than a few minutes, and the defendant
confessed to the crime within minutes of its commission
and made no attempt to conceal his culpability -- I would
hold that the District Court had the discretion to depart
based on aberrant behavior, and that the District Court's

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conclusion that it had "no authority" to award the
departure was an error of law necessitating a remand.3

The majority endorses the District Court's holding that
Paster is not eligible for an aberrant behavior departure
because he did not act in a "thoughtless" manner. In
particular, the majority relies on the District Court's
observations that Paster had time in the minutes preceding
the murder to think about his actions, and that Paster
stabbed his wife so many times that he must have been
thinking about the murder while he was committing it. Maj.
Op. at 8-9. In my view, neither of these reasons support the
conclusion that Paster did not act "thoughtlessly." As to the
latter, if a defendant who is conscious of his actions during
the commission of a crime is deemed not to have acted
aberrantly, then the departure will only be available to that
minuscule class of defendants who are liable for crimes
committed by involuntary reflex, and perhaps also to those
who are in a hypnotic state at the time of their offense.
Surely this is not what the Sentencing Commission or the
Marcello panel intended when they recognized that "single
acts of aberrant behavior" may justify a downward
departure. U.S.S.G. Ch. 1, Pt. A, intro. comment P 4(d).
That Paster may or may not have thought about whether to
murder his wife in the moments before the stabbing also
should not be a sufficient basis to disqualify him for an
aberrant behavior departure. The murder of Dr. Bostrom,
while undoubtedly a brutal and heinous crime, was
certainly not the product of any meaningful deliberation or
reflection on the part of Paster; to the contrary, all
_________________________________________________________________

3. The majority asserts that the District Court's statement that it had
"no
authority to depart on the basis of aberrant behavior under Marcello,"
Paster, 17 F. Supp. 2d at 351, did not really mean what it said (i.e.,
that
the District Court thought it lacked discretion to grant Paster's
downward departure motion). Instead, the majority posits, the statement
merely reflects the District Court's determination that "the facts of this
case applied to the principles announced in Marcello do not qualify
Paster for an aberrant behavior departure." Maj. Op. at 11. I cannot
agree. We must presume that the able and experienced District Judge
meant precisely what he said in concluding that he had "no authority"
to grant Paster's downward departure motion. The majority's effort to
recast the District Court's decision as an exercise of discretion strains
credulity.

                               30
indications are that Paster acted spontaneously and in
response to a series of deeply painful revelations from his
wife. Under these circumstances, the majority's conclusion
that Paster failed to act in a "thoughtless" fashion can only
be justified by the most literal and wooden definition of that
term.

None of this is to say, however, that an aberrant behavior
departure was required in this case. Not every crime that is
committed spontaneously and without prior planning
merits a reduced sentence. If after analyzing the factual
record, for example, the District Court concluded that the
murder of Dr. Bostrom was the culmination of a long-
standing pattern of domestic violence on the part of Paster,
then a departure based on aberrant behavior would have
obviously been inappropriate. A departure would have also
been unwarranted if the District Court concluded that the
lack of planning in this case was sufficiently accounted for
by the base offense level for second-degree murder.
U.S.S.G. S 2A1.2; see generally Koon v. United States, 518
U.S. 81, 95-96 (1996). But the District Court never reached
these issues. It summarily concluded that it had "no
authority" under Marcello to depart because Paster's
criminal act was not committed in a "thoughtless" manner.
Because that conclusion was based on an erroneous and
overly restrictive understanding of the legal standard
governing an aberrant behavior departure, we should allow
the District Court to reconsider this issue at re-sentencing.

* * *

Finally, I offer a brief comment concerning the District
Court's grant of a nine-level departure for extreme conduct,
which nearly tripled the sentence that Paster received.
Judge Oberdorfer has carefully identified the reasons why
the structure of the Guidelines and the applicable case law
render the magnitude of that departure unreasonable. I
shall not repeat them here. I add only that at re-sentencing,
for those same reasons, the District Court should not again
impose a nine-level upward departure. While Judge Sloviter
is of course correct that the District Court's decision to
depart is entitled to great deference, it is equally true that:

        A judge may not say: "I have decided to depart, so I
        now throw away the guidelines." The guidelines are

                                31
       designed to bring openness and consistency to
       sentencing, to even out the effects of different judges'
       perspectives on desert and deterrence. . . . Unless there
       is discipline in determining the amount of departure,
       however, sentencing disparity will reappear.

United States v. Ferra, 900 F.2d 1057, 1061-62 (7th Cir.
1990) (citation omitted). In my view, the nine-level
departure imposed in this case is emblematic of the very
sentencing disparities that the Guidelines were designed to
counter. It should not be repeated.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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