
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1089                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                                 JOSEPH SCLAMO, JR.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Brien T.  O'Connor, Assistant United States Attorney, with whom A.            __________________                                              __        John Pappalardo, United States Attorney, was on brief for appellant.        _______________            James R. Lemire for appellee.            _______________                                 ____________________                                     July 7, 1993                                 ____________________               COFFIN, Senior Circuit Judge.  This is a governmental appeal                       ____________________          from a  sentence in  which the  district court  departed downward          from  the  Sentencing  Guidelines.   The  court  determined  that          defendant's family situation revealed an aggravating circumstance          making this an "unusual case" not contemplated by the Guidelines.          Applying the  modified standard of review for such cases recently          announced in United States v. Rivera,  Nos. 92-1749, -2167, slip.                       _____________    ______          op. (1st Cir. June 4, 1993), we affirm.               Defendant Joseph Sclamo, Jr.  was arrested for attempting to          deliver  nine  and  one-half  ounces  of  cocaine  to  undercover          agents.1  He  pled guilty to  a single  count of possession  with          intent  to distribute,  in  violation of  21 U.S.C.    841(a)(1).          Under  the Guidelines,  Sclamo's offense  level was  17,  and his          criminal history category was II.   The district court,  however,          treated  Sclamo's  criminal  history  category as  I  because  it          considered the  higher category to overrepresent  the severity of          defendant's criminal  history.  The government  recommended a 28-          month  sentence, with  36 months  of supervised  release, and  an          assessment of $50.               Sclamo requested a downward  departure based on his domestic          situation.  For some three years, he had been living with a woman          and  her two children and  had developed a  special and crucially                                        ____________________               1  Sclamo's  arrest stemmed  from his involvement  in a  DEA          operation  targeting his father.  The father was charged with two          counts  of  drug  offenses, to  which  he  pled  guilty, and  was          sentenced with defendant.   The father received a sentence  of 54          months of imprisonment,  36 months of supervised release,  and an          assessment of $100.                                         -2-          important  relationship  with  the  twelve-year-old  son,  James.          Sclamo urged that his  presence at home was  vital to James,  who          was  in need of his  continuing companionship and  guidance.  Two          letters  from James's psychologist  were submitted  with Sclamo's          motion.                According to the first letter, written in April, 1992, since          age  5,  James  continually had  been  abused  physically by  his          alcoholic biological father.2   James began to display aggressive          and disruptive behavior at home and in school and was placed in a          behavior  disorder  class.    Eventually,  he  was  diagnosed  as          possessing "attention  deficit  hyperactivity disorder"  and  was          referred to  the psychologist  for individual psychotherapy  on a          weekly outreach basis  to help him develop "more effective coping          skills."               James's mother divorced  his father  in 1989.   In the  same          year  Sclamo began to live with James's family.  The psychologist          saw Sclamo weekly,  giving him and James's mother  instruction in          parenting  skills  and  behavior  modification  techniques.   The          psychologist praised  Sclamo as "very  supportive, concerned, and          mature in  his judgement and  follow through."   The psychologist          stated that James now  views Sclamo as his stepfather,  with whom          he  has developed  a  "warm  and  trusting  relationship  .  .  .          resulting in a dramatic reduction  in aggressive acting out,"  an          absence of school suspensions, and improved grades.                                        ____________________               2   James's father eventually was subjected to a restraining          order and then given a two-year suspended sentence for abuse.                                           -3-               The  psychologist  concluded  that  Sclamo  played  a  major          positive role in James's therapy  and that his continued presence          was   "necessary   for  James's   increasing   progress."     The          psychologist warned that Sclamo's  "removal from the family would          rob  all members of a  critical source of  affection and positive          care and clinically could  trigger a major regression in  James's          stability and emotional development."                Six months later, a month before the sentencing hearing, the          psychologist reported  in a  second letter that  James's progress          both at home  and at school was  continuing.  James was now  in a          "main stream class."  The psychologist credited Sclamo's "ongoing          and persistent  efforts . . .  to set clear and  firm limits with          James."   Noting  that Sclamo  "has played  a tremendous  role in          James's progress and continues to be the  only available resource          for  positive male  bonding," the  psychologist recommended  that          defendant be allowed to continue to  live at home, where he could          serve as  a "positive father  surrogate for this 12  year old boy          who   is  most   needy  for   continued  positive   guidance  and          companionship to insure appropriate maturational development."               Based  on  this  information,  the court  concluded  that  a          downward  departure  was  appropriate.     It  recognized   "that          ordinarily  family circumstances  do not  constitute a  basis for          downward departure" but felt that precedents in which courts have          departed downward "are very  much like this one in which there is          evidence  of   an  exceptional   kind  of  relationship   and  an          exceptional  risk  of harm  to a  child  if that  relationship is                                         -4-          broken."   Tr.  at 22-23.    The court  further credited  the two          reports from the psychologist as constituting                a  very compelling  set  of evidence  about a  personal               relationship that  I don't think there's  any reason to               believe arose  with  any purpose  of escaping  criminal               responsibility but has  occurred independently of that,               and it is, I think, a circumstance beyond in degree and               nature  those  that  were  taken into  account  in  the               guidelines.          Id.  at  22.   It accordingly  sentenced  Sclamo to  three years'          ___          probation,  with confinement at  home for six  months, subject to          permission from  the Chief  Probation Officer  to leave  home for          work, shopping, and medical attention.               On appeal, the government contends that family relationships          are  not a  basis  for departure.    It notes  that  imprisonment          necessarily disrupts such  relationships and that  the sentencing          guidelines provide that "[f]amily ties and responsibilities . . .          are not ordinarily relevant"  in determining whether departure is          appropriate.  See  USSG   5H1.6.  The government  further cites a                        ___          number of cases in which this court has refused to allow downward          departures  based on  family  circumstances.   See, e.g.,  United                                                         ___  ____   ______          States v. Carr, 932 F.2d 67, 72 (1st Cir. 1991).          ______    ____               The  government  also alleges  that,  even  if departure  is          permitted  based  on  family  ties,  Sclamo's  situation  is  not          sufficiently  compelling to  warrant  leniency.   The  government          points  out that Sclamo is not James's biological father and that          their relationship  has not been longstanding.   Additionally, it          urges that defendant's involvement in distributing cocaine in the                                         -5-          fall  of 1989  justified the recommended  sentence of  28 months'          incarceration.               The  resolution of  this  appeal is  governed by  our recent          pronouncements  in  United States  v.  Rivera.   As  Rivera makes                              _____________      ______        ______          clear, the Guidelines say only  that family circumstances do  not          ordinarily  warrant departure.    See  slip  op.  at  12  (citing                                            ___          U.S.S.G. Ch. 5, Pt.  H).  Thus, while discouraging  departures on          this ground,  the Guidelines recognize that  "special, unusual or          other-than-ordinary circumstances," id. at  16, may be considered                                              ___          as a basis for departure.  Indeed, our earlier cases  do not hold          that  district courts lack authority to depart on this ground but          merely illustrate circumstances not sufficiently extraordinary to          warrant  departure.  See, e.g., United States v. Rushby, 936 F.2d                               ___  ____  _____________    ______          41, 43 (1st Cir. 1991).               We briefly recapitulate the  approach Rivera suggests when a                                                     ______          departure from the Guidelines  is requested.  The  district court          first  should ask: "What features of this case, potentially, take          it  outside the Guidelines' `heartland' and make of it a special,          or unusual,  case?"  Rivera, slip op. at 15.  In cases like this,                               ______          where the special features are  discouraged, the court should "go          on  to decide  whether  the case  is nonetheless  not `ordinary,'          i.e.,  whether the case differs  from the ordinary  case in which          ____          those features are present."   Id.  If the case is  not ordinary,                                         ___          the court then may consider departure, deriving whatever guidance          it  can  from  the  Guidelines, but,  ultimately,  "drawing  upon          experience  and  informed judgment,"  id. at  17.   If  the court                                                ___                                         -6-          decides to depart,  "it must  explain how the  case (compared  to          other cases where the reason  is present) is special. . .  ." Id.                                                                        ___          at 21 (emphasis omitted).               As  for  our role  in  reviewing  such departure  decisions,          Rivera  modified  our prescriptions  in  United  States v.  Diaz-          ______                                   ______________     _____          Villafane,  874 F.2d 43 (1st  Cir. 1989).   In Diaz-Villafane, we          _________                                      ______________          said  that  review of  the  district  judge's determination  that          circumstances   were  "of  a   kind  or  degree   that  they  may          appropriately   be  relied   upon  to   justify  departure"   was          "essentially plenary," id. at 49.  Following Rivera, however,  we                                 ___                   ______          now "review  the  district court's  determination of  unusualness          with full  awareness of, and  respect for,  the trier's  superior          feel  for the case, . . .  not with the understanding that review          is plenary."  Rivera, slip op. at  23-24 (quoting Diaz-Villafane,                        ______                              ______________          874 F.2d at 50) (internal quotation marks omitted).               With  this background  and without  repeating the  essential          facts in the two reports credited by the district court, we see a          number of special factors  that transform Sclamo's situation into          an extraordinary one meriting the downward departure.  See, e.g.,                                                                 ___  ____          United  States v.  Johnson,  964 F.2d  124,  129 (2d  Cir.  1992)          ______________     _______          (affirming  departure  for defendant  who  "faced  more than  the          responsibilities  of an ordinary parent,  more even than those of          an  ordinary single  parent" as  sole caregiver  of 4  very young          children);  United States v. Pena, 930 F.2d 1486, 1495 (10th Cir.                      _____________    ____          1991) (affirming  departure to  avoid placing infant  children at          risk).                                         -7-               As an  initial matter, we cannot fault  the district court's          conclusion that  the psychological treatment and  observations of          James were not contrived or fabricated to assist Sclamo.  James's          referral for individual psychotherapy, made by a case worker with          no  connection to  defendant,  predated the  circumstances giving          rise to  this case.   Moreover,  the  psychologist's reports  are          based on a long history of personal observation, interaction, and          treatment  not only  of  James but  of defendant  as  well.   The          district   court,  therefore,   was   entitled   to  credit   the          psychologist's professional judgment  of the critical and  unique          role played by defendant in James's treatment.                Turning  to the family ties at issue, we think that Sclamo's          situation is readily distinguished from ordinary cases, where one          can  only speculate about  the stresses  that incarceration  of a          family member might cause.   In this case, there  is evidence not          only that James  already suffers  from a  clinical disorder,  but          that his condition will deteriorate if defendant is incarcerated.          Sclamo has a  track record  of steady and  effective support  and          guidance of James over  a lengthy period during which  Sclamo was          both   instructed  and   monitored  by   a  psychologist.     The          psychologist's  prognosis that  James would  risk  regression and          harm if  defendant were incarcerated amply  supports the district          court's  determination that  Sclamo's  relationship  to James  is          sufficiently extraordinary to sustain a downward departure.                 We therefore  think that, under our  present more restricted          standard  of review, the decision made by the district court must                                         -8-          be  affirmed.    We acknowledge  that  our  own  analysis of  the          circumstances setting this  case apart from the  ordinary case is          more  lengthy and detailed  than that of the  district court.  In          future cases we would expect, in line with our general discussion          in Rivera, a very deliberate discussion of the factors making the             ______          case unusual.  But we see no purpose served in this case, decided          below without the benefit of our recent guidance, in remanding to          make explicit what was implicit.               Affirmed.                 ________                                         -9-
