-
USCA1 Opinion
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
_________________________
No. 93-1376
UNITED STATES OF AMERICA,
Appellant,
v.
STEVEN M. ROSTOFF, ET AL.,
Defendants, Appellees.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge] ___________________
_________________________
Before
Torruella, Chief Judge, ___________
Selya and Stahl, Circuit Judges. ______________
_________________________
Peter A. Mullin, Assistant United States Attorney, with whom _______________
Donald K. Stern, United States Attorney, and Jonathan L. Kotlier, _______________ ___________________
Assistant United States Attorney, were on brief for the United
States.
Roger A. Cox for defendant Steven M. Rostoff; Michael J. _____________ ___________
Traft, with whom Carney & Bassil was on brief, for defendant _____ ________________
David Rostoff; Erica M. Foster, with whom Foster and Peterson was _______________ ___________________
on brief, for defendant James Harris; Thomas M. Hoopes for _________________
defendant Dolores DiCologero; and William A. Brown for defendant ________________
Paul J. Bonaiuto.
_________________________
April 24, 1995
_________________________
SELYA, Circuit Judge. In this case, the district court SELYA, Circuit Judge. _____________
departed downward from the guideline sentencing range (GSR) as to
each of five defendants on the theory that the harm attributed to
them, measured by the amount of loss sustained by the victim,
overstated the seriousness of the offense of conviction. The
government now asks us to evaluate both the lawfulness of the
downward departures and the propriety of the court's role-in-the-
offense adjustments for two defendants, David and Steven Rostoff.
We uphold the sentences of all defendants except the Rostoffs
(who must be resentenced as a result of erroneous role
determinations).
I. BACKGROUND I. BACKGROUND
A federal grand jury indicted the brothers Rostoff,
together with James Harris, Dolores DiCologero, and Paul J.
Bonaiuto, on charges, inter alia, of conspiracy, bank fraud, and _____ ____
the making of false statements. See 18 U.S.C. 371, 1344, and ___
1044. These charges stemmed from a failed foray into the New
England condominium market a market that rose to giddy heights
in the mid-to-late-1980s and then plunged precipitously.
The conspiracy count constituted the hub of the
indictment. In it, the grand jury charged that, from December
1985 to February 1989, the defendants, aided and abetted by
others, fraudulently induced a federally insured financial
institution, the Bank for Savings (the bank), to grant several
hundred loans, totalling in excess of $30,000,000, to persons
purchasing condominium units from David Rostoff, Steven Rostoff,
2
and James Harris (collectively, "the Rostoff group" or "the
developers"). Like spokes running from the hub, 43 of these
loans gave rise to 86 "mirror image" bank fraud and false
statement counts against various defendants.
The trial jury plausibly could have found that the
scheme tracked the following script. The bank had a firm policy
of refusing to grant first mortgage loans in excess of 80% of the
lower of the sale price or the appraised value of residential
real estate; and, when mortgages were written on that basis, the
bank ordinarily required the balance of the purchase price to be
paid in cash by the borrower. In 1986, bank officials, eager to
maintain a lucrative working relationship with the Rostoff group,
bent the rules. The bankers allowed the developers to assist
common customers (i.e., persons who bought condominiums from the ____
Rostoff group and financed the purchases through the bank) in an
uncommon way: by taking back second mortgages to circumvent the
cash down-payment requirement. The bankers conditioned this
concession on the express understanding that the second mortgages
would be enforced, and that each purchaser would make at least a
10% down payment from his or her own capital.
This arrangement proved too tame for the developers'
purposes. To facilitate sales, they cooked the books,
surreptitiously telling selected buyers that they would not
enforce the second mortgages, or, alternatively, that they would
not demand interest payments on particular second mortgages until
resale of the encumbered condominiums. More importantly, the
3
developers set out to subvert the down-payment requirement by
orchestrating a paper shuffle designed to create the (false)
impression that the buyers were putting 10% down in order to
acquire the properties, when they were not. In many instances,
the developers accomplished this sleight of hand by offering
customers a 10% discount from the stated purchase price. When a
customer agreed to buy at the reduced price, the developers
submitted documents to the bank that overstated the actual
purchase price by 10% and treated the negotiated discount as a
down payment. This flim-flam took on added significance because
the bank underwrote the loans on the basis of an 80% loan-to-
value (LTV) ratio, using purchase price as a principal measure of
value. Thus, an inflated purchase price often caused the bank to
approve a higher first mortgage loan than would have been
forthcoming had it known the true purchase price. In the end,
many buyers acquired condominiums without making any down payment
or other cash expenditure (except for closing costs).
The bank's closing attorney, defendant Bonaiuto, and
the manager of the bank's mortgage department, defendant
DiCologero, knowingly participated in fabricating this tissue of
lies, half-truths, and evasions. Between September 1986 and
February 1989, the bank engaged Bonaiuto to close at least 240
loans to the developers' customers. Although no fewer than five
borrowers testified at trial that they asked Bonaiuto about
apocryphal deposits shown on their settlement sheets, he did not
4
notify the bank of any discrepancies.1 DiCologero also worked
closely with the developers, handling the day-to-day
administration of the loan approval process. The prosecution
proved her awareness of the ongoing scheme largely by
circumstantial evidence.2
Following a lengthy trial, a jury found each of the
five defendants guilty of conspiracy to defraud the bank. In
addition, the jury found Steven Rostoff guilty on a total of 72
"mirror image" counts of bank fraud and making false statements
(representing 36 transactions), David Rostoff guilty on 32 such
counts (representing 16 transactions), Harris guilty on 52 such
counts (representing 26 transactions), Bonaiuto guilty on 10 such
counts (representing five transactions), and DiCologero guilty on
two such counts (representing one transaction).
On January 29, 1993, the district court convened a
____________________
1We note two related facts. First, after investigators
discovered the fraud, Bonaiuto falsely asserted that he had
queried borrowers about the deposits shown on the settlement
sheets, and that they had assured him that they had made the
indicated down payments. Second, Bonaiuto also acted as closing
attorney for the bank in connection with his own purchase of two
condominium units from the Rostoff group. On each occasion, he
submitted a settlement sheet to the bank showing that he had
tendered a 10% down payment when, in fact, he had made no down
payment at all.
2One vignette is particularly telling. On July 23, 1987,
DiCologero's husband closed a mortgage loan at the bank in order
to finance his purchase of a condominium from the Rostoff group.
The settlement statement falsely indicated that a $7,700 deposit
had been made when, in fact, DiCologero's husband had purchased
the condominium with no cash down payment (advancing only
$1,663.40 in closing costs). The record shows that DiCologero
shepherded the loan through the bank's approval process.
5
disposition hearing.3 By then, the bank had become insolvent,
and the Federal Deposit Insurance Corporation (FDIC) had become
the receiver. The court determined that the FDIC sustained
losses due to the defendants' activities in the
$2,000,000 $5,000,000 range. The court then calculated the
offense level of all defendants except DiCologero on the basis of
this loss computation, see U.S.S.G. 2F1.1(b)(1)(K) (providing a ___
10-level enhancement for fraud crimes involving losses of more
than $2,000,000, up to and including $5,000,000), arriving at an
adjusted offense level (OL) of 20 for the Rostoff brothers and
Bonaiuto, and 18 for Harris. The court attributed slightly under
$1,000,000 in losses to DiCologero and, after other interim
adjustments, settled on an OL of 18. The court factored in the
defendants' criminal history scores all were first offenders
and arrived at a GSR of 33-41 months at OL-20 and a GSR of 27-33
months at OL-18. Finding, however, that in each instance the
amount of loss overstated the seriousness of the particular
____________________
3The jury convicted the defendants on a count that charged a
conspiracy beginning in 1985 and continuing into 1989. It is
well established that the sentencing guidelines apply to offenses
that straddle the effective date of the guidelines (November 1,
1987). See United States v. David, 940 F.2d 722, 739 (1st Cir.), ___ _____________ _____
cert. denied, 502 U.S. 989 (1991). Even in such cases, however, _____ ______
the guidelines in effect at the time of sentencing, not those in
effect at the tag end of the offense, ordinarily control at
sentencing, except where ex post facto concerns loom. Cf., e.g., __ ____ _____ ___ ____
United States v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. ______________ __________
1990). The district court, invoking this exception, applied the
November 1987 version of the guidelines. No party questioned
that choice below, and no party asks us to revisit it on appeal.
Since we follow the district court's lead, all references herein
are to the November 1987 edition of the guidelines unless
otherwise specifically indicated.
6
defendant's criminality, Judge Zobel departed downward. She
sentenced David and Steven Rostoff to serve 15-month terms of
immurement; sentenced Harris to a nine-month prison term;
sentenced Bonaiuto to two years probation, six months of which
was to be served in a community treatment center; and sentenced
DiCologero to two years of straight probation. This appeal
followed.
II. THE DOWNWARD DEPARTURES II. THE DOWNWARD DEPARTURES
In sentencing under the guidelines, departures are the
exception rather than the rule. See United States v. Diaz- ___ _____________ _____
Villafane, 874 F.2d 43, 52 (1st Cir.), cert. denied, 493 U.S. 862 _________ _____ ______
(1989). When a district court nonetheless departs, and an appeal
eventuates, we ask three general questions: (1) Is the reason
that the sentencing court gave for departing of a type that
lawfully can ground a departure in an appropriate case? (2) Is
the court's factfinding in respect to the cited reason
sustainable on whole-record review? (3) Is the degree of the
departure reasonable? See United States v. Mendez-Colon, 15 F.3d ___ _____________ ____________
188, 189 (1st Cir. 1994); United States v. Rivera, 994 F.2d 942, ______________ ______
950-52 (1st Cir. 1993); Diaz-Villafane, 874 F.2d at 49. A ______________
departure passes muster only if all three inquiries yield an
affirmative response.
In this case, the government asserts that the lower
court erred at each step along the departure path. We trace the
contours of the court's decision and then address the three
7
relevant questions.4
A. The Anatomy of the Departure Decision. A. The Anatomy of the Departure Decision. _____________________________________
In fraud cases controlled by the guidelines, the amount
of the victims' monetary loss (actual or intended) is a proxy for
the seriousness of the offense, and, thus, a key determinant of
the severity of the perpetrator's sentence. See United States v. ___ _____________
Lilly, 13 F.3d 15, 17, 19 (1st Cir. 1994); United States v. _____ ______________
Tardiff, 969 F.2d 1283, 1285 (1st Cir. 1992). Recognizing, _______
however, that no proxy is perfect, the applicable edition of the
sentencing guidelines cautions that:
In a few instances, the total dollar loss
that results from the offense may overstate
its seriousness. Such situations typically
occur when a misrepresentation is of limited
materiality or is not the sole cause of the
loss . . . In such instances, a downward
departure may be warranted.
U.S.S.G. 2F1.1, comment. (n.11) (Nov. 1987).
The defendants in this case all moved for downward
departures based on application note 11. The district court
accommodated their requests, linking its largesse to a linchpin
finding that numerous factors, apart from the defendants'
conduct, inflated the losses sustained by the FDIC. The court
premised its linchpin finding primarily on three subsidiary
findings. (1) The court remarked the bank's gadarene rush to
participate in the condominium boom despite the obvious risks.
____________________
4Inasmuch as the Rostoffs must be resentenced for other
reasons, see infra Part III, we limit our departure inquiry to ___ _____
the sentences imposed upon Harris, DiCologero, and Bonaiuto,
respectively.
8
To the court's way of thinking, this overeagerness was driven by
greed after all, the bank based incentive compensation for top
officials on loan production and fomented a "lend at all costs"
mentality that led senior managers to condone the defendants'
shenanigans. The court expressed great skepticism about senior
management's professed lack of knowledge or responsibility,
concluding that, at the very least, management had acted
negligently, particularly in authorizing loan approvals, and had
bent its policies grotesquely to retain the Rostoff group's
business. In the court's view, these shortcomings contributed
mightily to the extent of the eventual losses. (2) Next, the
court found that the buyers were neither dupes nor victims in the
traditional sense. To the contrary, the court thought they had
become willing participants in the defendants' scheme. Their
cupidity drove up prices in the condominium market and, thus,
contributed substantially to the amount of money eventually lost.
(3) Finally, the court observed that economic forces not under
the control of, or precipitated by, the defendants, especially
the sudden, unforeseen collapse of the New England real estate
market a collapse that decimated the demand for residential
condominiums increased the magnitude of the losses.
The district court believed that these factors, in
combination, contributed so directly to the extent of the loss
that the defendants were entitled to a substantial measure of
relief. In the sections that follow, we test the legal and
factual sufficiency of the court's stated ground. Finally, we
9
examine the reasonableness of the actual departures insofar as
they affect Harris, DiCologero, and Bonaiuto.
B. Step One: The Court's Reason. B. Step One: The Court's Reason. _____________________________
While the government assails the departure decision on
all available fronts, its fundamental point is that, as a matter
of law, the guidelines simply do not authorize departures under a
"multiple loss causation" theory. Since this assertion questions
whether the departure-justifying reason cited by the court below
is of a kind that the guidelines, in principle, permit a
sentencing court to embrace for that purpose, we afford plenary
review. See Rivera, 994 F.2d at 951; Diaz-Villafane, 874 F.2d at ___ ______ ______________
49.
In evaluating multiple loss causation as a departure-
justifying circumstance, we do not write on a pristine page. In
United States v. Gregorio, 956 F.2d 341 (1st Cir. 1992), we ______________ ________
approved the manner in which the district court, acting under the
general fraud guideline, U.S.S.G. 2F1.1, structured its downward
departure to "reflect[] ``multiple causation' for victim loss."
Id. at 344. Although the "sufficiency of the basis for departing ___
in response to multiple causation of victim loss" was not at
issue on that occasion, id. at 347 n.10, we stated unambiguously ___
that "``multiple causation' of victim loss is a ``Commission-
identified' circumstance in which a downward departure may be ____________
warranted." Id. at 347. We do not believe that these words, ___
even if technically dictum, can be read other than as an outright
endorsement of multiple loss causation as a permissible basis for
10
departing downward, and, indeed, as a departure-justifying reason
that the guidelines encourage. See generally Rivera, 994 F.2d at ___ _________ ______
948 (explaining that the guidelines sometimes "offer the district
court, which is considering whether to depart, special
assistance, by specifically encouraging" certain types of
departures).
Despite the plain import of Gregorio, the government ________
maintains that multiple loss causation is an invalid basis for a
downward departure. Gregorio is irrelevant here, the government ________
says, because the Gregorio court had before it the November 1990 ________
version of the guidelines, which, like the original (1987)
version, authorized departures when "the total dollar loss that
results from the offense [overstates] its seriousness," such as
when "a misrepresentation . . . is not the sole cause of the
loss." 956 F.2d at 345 (citing November 1990 version of
application note 11).5 In the government's view, time has
passed Gregorio by, for the Sentencing Commission rewrote the ________
application notes to section 2F1.1 effective November 1, 1991,
consolidating several preexisting notes into a new note 10. In
the process, the Commission eliminated any reference to "the sole
cause of the loss" language.6 The government proceeds to weave
____________________
5The November 1990 version of application note 11 is
identical to the 1987 version and, thus, controls in this case.
See supra note 3. ___ _____
6The new note reads in pertinent part:
In cases in which the loss . . . does not
fully capture the harmfulness and seriousness
of the conduct, an upward departure may be
11
a tapestry from several gossamer strands of speculation and
surmise, hypothesizing that the Commission, recognizing that it
had improvidently promulgated former note 11, acknowledged the
error of its ways and junked the original reference. Using this
hypothesis as a springboard, the government then jumps to the
conclusion that the Commission, in essaying the revision, tacitly
rejected multiple loss causation as an appropriate factor in the
departure calculus.
We need not resolve the issue of whether the
Commission, in revising the application notes in a way that
dropped the "sole cause of the loss" language, intended to drum
multiple loss causation out of the ranks of encouraged
departures. To avoid ex post facto difficulties, courts should __ ____ _____
"normally apply [guideline] amendments retroactively only if they
clarify a guideline, but not if they substantively change a
guideline." United States v. Prezioso, 989 F.2d 52, 53 (1st Cir. _____________ ________
1993); accord Isabel v. United States, 980 F.2d 60, 62 (1st Cir. ______ ______ _____________
1992). This rule stymies the government in this instance. If,
on the one hand, as the government argues, the Commission's
rewriting of the application notes bars downward departures
premised on multiple loss causation, then that revision cannot be
____________________
warranted. . . . In a few instances, the
loss . . . may overstate the seriousness of
the offense. This may occur, for example,
where a defendant attempted to negotiate an
instrument that was so obviously fraudulent
that no one would seriously consider honoring
it.
U.S.S.G. 2F1.1 comment., n.10 (Nov. 1991).
12
applied retroactively for doing so would change the substance of
the fraud guideline, U.S.S.G. 2F1.1, as that guideline was
explicated in Gregorio. See Prezioso, 989 F.2d at 54 ________ ___ ________
(explaining that a new interpretation of a guideline that
contradicts existing circuit precedent "alters the guideline"
and, hence, constitutes a substantive change that can only apply
prospectively). If, on the other hand, the revision does not bar
downward departures for multiple loss causation, then the
district court's selection of multiple loss causation as its
departure-justifying ground is, under Gregorio, unimpugnable. ________
Consequently, we hold that, under the original pre-1991
version of the guidelines the version that controls here the
district court permissibly singled out multiple loss causation as
a departure-justifying circumstance.7
C. Step Two: The Factual Predicate. C. Step Two: The Factual Predicate. ________________________________
Since the lower court isolated a conceptually proper
departure-justifying circumstance, the second step of the review
process looms. At this stage, we must determine whether, on the
whole record, the court supportably could have found that the
departure-justifying circumstance actually existed. See Diaz- ___ _____
____________________
7The government also suggests, in what it bills as a
separate argument, that the district court improperly relied on
the conduct of the bank and of the buyers as a basis for
departing. At bottom, however, this suggestion is predicated on
the government's assertion that it is improper to focus on any ___
causes of the loss apart from the conduct of the defendants. As
we have pointed out, such a position is inconsistent with both
the unambiguous language of the original commentary that
accompanied section 2F1.1 and the clear import of existing
circuit precedent. Hence, the government's "separate" suggestion
adds nothing to its flagship argument.
13
Villafane, 874 F.2d at 49. Because this determination implicates _________
the court's factfinding, our standard of review is deferential.
See id. (explaining that the findings of fact underlying a ___ ___
departure decision "may be set aside only for clear error").
Aside from the defendants' actions, the district court
identified three factors that contributed to the magnitude of the
loss in this case: (1) the conduct of the bank's senior
management; (2) the buyers' esurience; and (3) the nosedive in
condominium prices. The government does not seriously dispute
either the incidence of these factors or their aggravating effect
upon the amount of loss.8 Instead, the government asserts that
the court clearly erred in finding an overstatement because the
loss figures that the court used for sentencing purposes
represented only a fraction of the actual losses caused by the
defendants' criminal activity.
This argument will not wash. Calculating the amount of
loss for purposes of the sentencing guidelines is more an art
than a science. Courts can, and frequently do, deal with rough
____________________
8At any rate, the record buttresses the district court's
conclusions. The evidence establishes that bank officials
approved myriad loans, totalling millions of dollars, with an
abandon commonly associated with drunken sailors. In the
bargain, senior management routinely authorized loans that
exceeded the bank's LTV ratio, backdated documents, and acted, to
use the government's phrase, in an "incredibly negligent"
fashion. The evidence also shows that many of the purchasers
were sophisticated investors who, enthralled by gimmicks like the
phantom down-payment concept, bought multiple properties. As
sophisticated investors surely should know, projected profits
that look too good to be true often are and often signify the
presence of great financial hazards. Finally, an economist's
affidavit, introduced at sentencing, graphically illustrates the
extent to which the bottom fell out of the condominium market.
14
estimates. See United States v. Skrodzki, 9 F.3d 198, 203 (1st ___ _____________ ________
Cir. 1993); see also U.S.S.G. 2F1.1, comment., n.8 (stating that ___ ____
"the loss need not be precise," so long as the court "make[s] a
reasonable estimate of the range of loss, given the available
information"). Hence, a party dissatisfied with the sentencing
court's quantification of the amount of loss in a particular case
must go a long way to demonstrate that the finding is clearly
erroneous. See Skrodzki, 9 F.3d at 203; Tardiff, 969 F.2d at ___ ________ _______
1288.
Here, the court computed the amount of loss based on 43
loans that were specifically enumerated in various substantive
counts of the indictment, plus an additional 97 loans that the
Federal Bureau of Identification (FBI) had classified as
fraudulent. The court then excluded from its loss calculation
for each defendant any loan that formed the basis for a specific
count on which he or she had been acquitted. In restricting her
computations to these 140 loans, the judge relied on an affidavit
subscribed to by an FBI case agent, who reviewed the bank's
records and culled out loans for which he found "specific
evidence of fraud."
Bearing in mind the wide berth that sentencing judges
must be given in determining what information is, or is not,
sufficiently reliable to be used in imposing sentence, see ___
Tardiff, 969 F.2d at 1287, we cannot say that Judge Zobel's _______
refusal to venture beyond these 140 loans constituted clear error
especially since the record contains only sketchy information
15
about the origin and extent of losses on other loans. Nor can we
say that the judge erred in excluding "acquitted" loans.
Although relevant conduct must be determined by the court, not
the jury, see, e.g., United States v. Tavano, 12 F.3d 301, 306 ___ ____ ______________ ______
(1st Cir. 1993); United States v. Mocciola, 891 F.2d 13, 17 (1st _____________ ________
Cir. 1989), we believe the evidence here falls well short of
compelling a finding that any "acquitted" loans must be included __________
in calculating the amount of loss.
Because the record adequately supports the district
court's findings as to both multiple loss causation and amount of
loss indeed, the government has shown us nothing that casts
serious doubt on the plausibility of the court's findings in
either respect we conclude that the departure decision passes
muster at step two.
D. Step Three: Reasonableness. D. Step Three: Reasonableness. ___________________________
We come now to the final step in the review process,
focusing on whether the "direction and degree of departure" are
reasonable. Diaz-Villafane, 874 F.2d at 49. The government says ______________
that the district court stumbled at this step by failing to
explain how it arrived at such sizable sentence reductions and by
exhibiting unreasonable leniency. We turn first to the absence
of a particularized explanation of how the district court
determined the extent to which it would depart.
1. The Need for Findings. In United States v. Emery, 1. The Need for Findings. ______________________ _____________ _____
991 F.2d 907, 913 (1st Cir. 1993), we held that it is not
necessary for a district court to "dissect its departure
16
decision, explaining in mathematical or pseudo-mathematical terms
each microscopic choice made in arriving at the precise
sentence." We opted instead for a pragmatic approach,
recognizing the helpfulness of explanations but cautioning that
"when the court has provided a reasoned justification for its
decision to depart, and that statement constitutes an adequate
summary from which an appellate tribunal can gauge the
reasonableness of the departure's extent, it has no obligation to
go further and attempt to quantify the impact of each incremental
factor on the departure sentence." Id. This approach reflects ___
our view that judicial discretion, sensibly exercised, is in most
cases the critical determinant of the degree of departure. See ___
United States v. Aymelek, 926 F.2d 64, 70 (1st Cir. 1991) ______________ _______
(holding that, in respect to unguided departures, "a sentencing
court need not resort at all to analogies"); Diaz-Villafane, 874 ______________
F.2d at 51-52 (disavowing any intention to reduce departure
decisions to exercises in "mechanistic bean-counting").
This approach is not discredited by cases such as
United States v. Rosales, 19 F.3d 763 (1st Cir. 1994). There, _____________ _______
the district court gave only a terse summary of its reasons for
departing, and offered no insight into how it settled upon the
degree of departure. On appeal, this paucity of information
compromised our ability to assess the departure's reasonableness
and necessitated a new sentencing proceeding. See id. at 770. ___ ___
To be on the safe side, a sentencing judge should
always endeavor to explain the extent of a departure. Yet judges
17
are human, and, like other human beings, they will sometimes fail
to dot every "i" and cross every "t." When such a slip occurs
and a sentencing court neglects to explain how it fixed the
extent of a departure, no bright-line rule obtains. Such
situations must be handled on a case by case basis. The bottom
line is that we eschew a purely mechanical test one that merely
asks whether or not the sentencing court has made findings
explaining the degree of departure in favor of a practical one
one that asks more broadly whether or not the sentencing court
has supplied the appellate panel with sufficient information to
enable it to determine the reasonableness of the departure. See, ___
e.g., United States v. Quinones, 26 F.3d 213, 219 (1st Cir. 1994) ____ _____________ ________
(stating that the court of appeals will overlook the omission of
an explicit explanation anent the scope of a departure "if the
reasons for the judge's choice are obvious or if an explanation
can fairly be implied from the record as a whole").
Here, unlike in Rosales, appellate review is _______
facilitated by the sentencing court's detailed explication of the
circumstances warranting departure. This thorough exposition is
adequate to explain the departures' extent. In particular, Judge
Zobel's founded determination that the amount of loss grossly
overstated the seriousness of the defendants' criminal activity
weighs heavily. Precisely because the guidelines use amount of
loss as a proxy for culpability in fraud cases, a supportable
finding that the loss exaggerates the reality of events often is
tantamount to a finding that the conventional sentencing range
18
exaggerates a defendant's blameworthiness, and, thus, tends to
invite a corresponding downward departure. So it is here.
Accordingly, while we would have preferred a more deliberate
discussion of the degree of departure, "we see no purpose served
in this case . . . in remanding to make explicit what was
implicit." United States v. Sclamo, 997 F.2d 970, 974 (1st Cir. _____________ ______
1993).
2. The Departures' Extent. The second shot in the 2. The Departures' Extent. _______________________
government's sling comes closer to the mark. The three
departures currently under review are substantial; as we show in
the margin, the least generous of them (applicable to Harris)
reduces the sentence to one-third the bottom of the GSR, and the
other two departures (applicable to Bonaiuto and DiCologero,
respectively)
manifest even greater clemency.9 Nonetheless, we reject both
the prosecution's implicit premise that unguided departures of
this magnitude are presumptively unsound and its explicit premise
____________________
9The following chart illustrates the degrees of departure:
Defendant GSR Incarcerative _________ ___ _____________
Sentence ________
J. Harris 27-33 months 9 months
P. Bonaiuto 33-41 months 0
D. DiCologero 27-33 months 0
Relatedly, the court placed Bonaiuto on two years probation, six
months of which was to be served in a community treatment center,
and sentenced DiCologero to a two-year term of straight
probation.
19
that the particular departures sub judice are simply ___ ______
unreasonable.10
We begin at bedrock. In respect to unguided
departures, once the sentencing court identifies a departure-
justifying circumstance and decides to act upon it, there is no
algebraic formula that it can invoke to quantify the departure's
extent. Hence, determining the size of such a departure is
"quintessentially a judgment call," Diaz-Villafane, 874 F.2d at ______________
49, of a type that the law leaves almost entirely to the
sentencing court's standardless discretion. This means, of
course, that there is no single, correct, "one-size-fits-all"
unguided departure; rather, in any given situation, a range of
widely disparate options doubtless fall within the universe of
acceptable sentencing outcomes.
Similarly, once the trial judge departs, there is no
litmus test that an appellate court can employ to verify that the
extent of an unguided departure is or is not reasonable.
____________________
10In general, departures can be classified as either
"guided" or "unguided." As the label implies, a guided departure
is one in which a "guideline or related commentary suggests that
under [the] particular circumstances the departure should be
calibrated by a particular analogy to the sentencing grid."
Bruce M. Selya & Matthew R. Kipp, An Examination of Emerging ___________________________
Departure Jurisprudence Under the Federal Sentencing Guidelines, ________________________________________________________________
67 Notre Dame L. Rev. 1, 12 (1991). In contrast, an unguided
departure, although it may be based on grounds specifically
encouraged or identified in the guidelines, is not constrained by
a specification of the means through which the sentencing court
must calculate the departure's magnitude. See id. We restrict ___ ___
our discussion today to unguided departures, because former
application note 11 to section 2F1.1, as it appeared in 1987,
offered no definitive directions for determining the extent of
downward departures based on multiple loss causation.
20
This stark reality, coupled with the district court's superior
knowledge of the facts and its matchless ability to detect the
subtle nuances that at times distinguish cases from the mine-run,
argues convincingly for a deferential approach. See Rivera, 994 ___ ______
F.2d at 950 (discussing desirability of deference in light of
"sentencing court's superior ``feel' for the case") (quoting Diaz- _____
Villafane, 874 F.2d at 50); see generally Bruce M. Selya & _________ ___ _________
Matthew R. Kipp, An Examination of Emerging Departure ___________________________________________
Jurisprudence Under the Federal Sentencing Guidelines, 67 Notre ______________________________________________________
Dame L. Rev. 1, 39-40 (1991) (explaining that, in reviewing the
extent of an unguided departure, "the sentencing judge's decision
is accorded generous latitude in recognition of the court's
firsthand knowledge of the case"). We have consistently held,
therefore, that appellate judges must exercise considerable
restraint before disturbing the presider's reasoned definition of
the degree of departure. See Rivera, 994 F.2d at 950; Diaz- ___ ______ _____
Villafane, 874 F.2d at 49-50. _________
To be sure, this emphasis on deference places a
considerable burden on the sentencing judge. To ease the weight
of this burden, the judge is entitled to expect counsel's help.
The lawyers are (or, at least, they should be) a fecund source of
assistance, for they have every incentive to give the trial court
the benefit of their thinking on issues in the case. Indeed, the
prosecution, which has an institutional interest in seeing that
justice is done, possesses an incentive that borders on an
obligation.
21
Departures fit neatly within this conceptual framework.
Judges must forewarn the parties of imminent departures, see ___
Burns v. United States, 501 U.S. 129, 135-39 (1991), and, once _____ _____________
forewarned, the prosecution and the defense become full partners
with the court in the departure pavane. Given the opportunity,
the parties out of self-interest, if for no more ennobling
reason should try to aid the court in determining what degree
of departure best responds to the idiosyncratic features of the
specific case. A prosecutor who forfeits this opportunity is in
a peculiarly poor position to protest profusely when the judge,
left to her own devices, thereafter exercises her discretion as
she deems best.
This brings us to a special circumstance that
undermines the argument the United States advances here. Judge
Zobel invited the government to make recommendations at the
disposition hearing concerning the appropriate degree of
departure for each defendant. The prosecutor declined the
invitation, clinging stubbornly to his position that the court
should not depart at all. At oral argument in this venue, the
government sought to justify this maneuver by suggesting that its
underlying position its claim that the district court could not
lawfully depart somehow relieved it of any responsibility to
assist the court in fixing the degree of departure. We are
unpersuaded.
The court below was faced with two distinct decisions:
whether to depart, and if so, to what extent. Once the court
22
resolved the threshold issue and solicited the parties' views on
the second issue, the prosecution, given its distinctive role,
could not sidestep the separate inquiry as to the degree of
departure merely because it disagreed with the court's initial
ruling. Counsel who lose a point can neither pout nor play the
ostrich, but must move on and confront the next set of issues.
See, e.g., United States v. Smolar, 557 F.2d 13, 17 (1st Cir.), ___ ____ _____________ ______
cert. denied, 434 U.S. 866 (1977). Just as a lawyer who moves _____ ______
unsuccessfully for judgment as a matter of law must then give the
court his suggested jury instructions on the issue or risk a
less-than-favorable charge, so, too, a prosecutor who argues
against a departure, loses, and then refuses to offer suggestions
referable to the degree of departure runs a comparable risk.
In this instance, the chickens came home to roost: the
district court, unable to pry a recommendation out of the
prosecution, granted sizable sentence reductions. Under these
straitened circumstances, the government has an especially hard
row to hoe in its effort to convince us that the district court
displayed unreasonable generosity in shaping the departures.
Because reasonableness is not an absolute, but a construct that
"depends on the circumstances," Cotto v. United States, 993 F.2d _____ _____________
274, 280 (1st Cir. 1993), the government's silence in the face of
the lower court's timeous request for enlightenment concerning
the appropriate extent of the departures affects our assessment
of the departures' reasonableness. Put another way, the
government, having been afforded an opportunity to influence a
23
discretionary decision and having chosen instead to stonewall,
can expect that doubts will be resolved against it when,
thereafter, it attempts to second-guess that decision.11 Cf. ___
Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co., ____________________ ________________________________________
840 F.2d 985, 989 (1st Cir. 1988) ("Courts, like the Deity, are
most frequently moved to help those who help themselves.").
Against this backdrop, we conclude that the government
has not shown the sentencing outcomes in this case to be beyond
the realm of reason. In reviewing upward departures, we have ______
ratified very dramatic deviations from tabulated sentencing
ranges so long as they have been shown to be responsive to the
record. In Diaz-Villafane, for instance, we affirmed a 120-month ______________
sentence though the GSR topped out at 33 months. In approving
this upward departure representing a 264% increase in the
defendant's sentence we deferred to "the district court's
____________________
11Our concurring brother misapprehends this point. Since
reasonableness is necessarily a function of what the sentencing
court knows, depriving the court of the prosecutor's judgments
about the extent of an anticipated departure limits the court's
knowledge and, thus, affects the reasonableness of its ensuing
determination. Contrary to Judge Stahl's assumption, the
unhelpful prosecutor does not "waive" anything; he simply makes
his post hoc complaint less convincing. ____ ___
By like token, we do not believe that we are
encouraging "empty exercise[s]." Post at 34. We agree that the ____
prosecutor who, as our concurring brother suggests, "recommend[s]
a downward departure of one week," does not assist the sentencing
court. Id. We disagree, however, that such a ruse would improve ___
the prosecution's position or help to alter the calculus of
reasonableness. It should go without saying that, just as we
expect lawyers who suggest jury instructions to base them on
existing law or good faith arguments for new law, so do we expect
the government to be candid and forthcoming in commenting upon
the reasonableness of an anticipated departure.
24
firsthand knowledge of the case and its careful exposition of the
reasons why it thought the situation to be markedly atypical."
874 F.2d at 52. Diaz-Villafane is not an aberration. See, e.g., ______________ ___ ____
United States v. Hernandez Coplin, 24 F.3d 312, 316 (1st Cir.) ______________ ________________
(upholding as reasonable 38-month and 46-month upward departures,
representing increases of 380% and 328% over the respective GSR
ceilings), cert. denied, 115 U.S. 378 (1994); United States v. _____ ______ _____________
Doe, 18 F.3d 41, 48-49 (1st Cir. 1994) (upholding as reasonable a ___
45-month upward departure that represented a 166% increase over
the GSR's apex); United States v. Figaro, 935 F.2d 4, 8-9 (1st _____________ ______
Cir. 1991) (upholding as reasonable an upward departure that
tripled the defendant's sentence); United States v. Rodriguez- ______________ __________
Cardona, 924 F.2d 1148, 1156-57 (1st Cir.) (upholding as _______
reasonable an 84-month upward departure that represented an
increase of 165% over the GSR's apex), cert. denied, 502 U.S. 809 _____ ______
(1991).
Because we do not visualize departures as a one-way
street leading invariably to higher sentences, the same reasoning
applies ex proprio vigore to downward departures. This street __ _______ ______
runs both ways. Consequently, the amount of deference that is
due to a district court's decision regarding the degree of
departure does not expand and contract depending upon the
departure's direction. See, e.g., United States v. White ___ ____ ______________ _____
Buffalo, 10 F.3d 575, 577-78 (8th Cir. 1993) (upholding as _______
reasonable a downward departure to a term of probation as against
a GSR of 18-24 months); United States v. One Star, 9 F.3d 60, 61- _____________ ________
25
62 (8th Cir. 1993) (upholding as reasonable a downward departure
to a term of probation as against a GSR of 33-41 months); Sclamo, ______
997 F.2d at 972 (upholding as reasonable a downward departure to
a term of probation as against a GSR of 24-30 months); United ______
States v. Jagmohan, 909 F.2d 61, 65 (2d Cir. 1990) (affirming ______ ________
district court's downward departure from GSR of 15-21 months to a
term of probation).
We will not primp the peacock's plumage. Here, four
critical factors militate against a holding that the departures
are unreasonably steep: (1) the district court's supportable
finding that the amount of loss vastly overstated the defendants'
culpability, (2) the combined impact of the several external
elements cited by the court (e.g., the greed displayed by the ____
lender's senior management, the bank's negligence, the buyers'
complicity, and the market's collapse), (3) the special
circumstance that the government refused to assist the court in
the daunting task of determining the departures' size, and (4)
the breadth of the court's discretion in this area of sentencing.
Though the question is close, we conclude that the three
departures are all within, albeit tiptoeing along the outer
periphery of, the universe of acceptable sentencing outcomes.
Finally, we think that the differences in the degrees
of departure as among the various defendants are sustainable. As
we have repeatedly observed, the amount of loss is a proxy for
the seriousness of an offense. In a broad sense, then, the loss
calculation is relevant to an individual defendant's culpability,
26
and the departure for multiple loss causation is driven by the
knowledge that, on occasion, the proxy will overstate
culpability. In sentencing these defendants, the district court
made explicit findings as to their relative culpability, rating
the brothers Rostoff "at the high end of culpability," Harris
"somewhat lower," Bonaiuto "somewhat below [Harris]," and
"DiCologero below that."12 The court then linked the degree of
departure to the degree of culpability. Once a departure-
justifying circumstance has been identified, and the sentencing
court has determined to act upon it, a construct that varies the
degree of departure based on relative culpability (as related to
the actual ground for departure) seems eminently reasonable.13
E. Recapitulation. E. Recapitulation. ______________
We have made the pilgrimage that Rivera and Diaz- ______ _____
Villafane demand. Having done so, we find that the district _________
court departed for an encouraged reason, permissible under the
guidelines; that the departure-justifying circumstance is
sufficiently record-rooted; and that the extent of the departures
____________________
12In a colloquy with the court, the prosecutor ranked the
defendants in order of perceived culpability, listing David
Rostoff as the most culpable, Steven Rostoff second, and Harris
third. Bonaiuto and DiCologero brought up the rear. For the
most part, the sentences imposed by Judge Zobel coincide with
this ranking. This parallelism makes it all the more difficult
for the government to maintain that the judge's method was
madness.
13Of course, relative culpability alone is not a reason to
depart. See United States v. Wogan, 938 F.2d 1446, 1448 (1st ___ _____________ _____
Cir.), cert. denied, 502 U.S. 969 (1991). If, however, a valid _____ ______
departure-justifying circumstance is present, and the sentencing
court acts on it, relative culpability appropriately can
influence the degree of departure.
27
is within acceptable bounds (if barely). Consequently, we
uphold the downward departures as to the defendants Harris,
Bonaiuto, and DiCologero.
III. ROLE IN THE OFFENSE III. ROLE IN THE OFFENSE
The final leg of our journey brings us to the sentences
imposed on the Rostoff brothers. Those defendants erect an
immediate roadblock, asseverating that the district court's
downward departures eliminate any need to scrutinize the
antecedent role-in-the-offense adjustments. Therefore, they urge
us to vault directly to a departure analysis, ignoring possible
errors in the court's interim sentencing adjustments. We demur:
following this course would put the cart before the horse.
We need not tarry, for the Rostoffs' importuning
impales itself on the horns of stare decisis. The reasonableness _____ _______
of a departure depends on its extent and the extent of a
departure cannot be measured unless and until a defendant's
sentencing range is established. Thus, "a decision to depart
does not, as a general rule, render moot questions concerning the
appropriateness of the calculations underbracing the district
court's computations of the GSR." Emery, 991 F.2d at 910. The _____
case at hand falls squarely within the Emery doctrine: each of _____
the challenged role-in-the-offense adjustments "at least
potentially, has more than academic effect on the actual sentence
because the proportionality of the departure to the GSR is a
salient factor to be considered in judging the departure's
reasonableness." Id. ___
28
Having dismantled the Rostoffs' roadblock, we turn to
the challenged adjustments. The sentencing guidelines provide
for elevating the OL of "an organizer or leader of a criminal
activity that involved five or more participants or was otherwise
extensive" by four levels, U.S.S.G. 3B1.1(a); elevating the OL
of lieutenants the "manager[s] or supervisor[s]" of such an
activity by three levels, U.S.S.G. 3B1.1(b); and elevating the
OL of those occupying leadership slots in smaller or less
extensive criminal enterprises by two levels, U.S.S.G. 3B1.1(c).
Here, the district court invoked subsection (c), and increased
the OL of each Rostoff brother by two levels. The government
contends that the court should have applied either subsection (a)
or (b). We agree.
A. What Transpired Below. A. What Transpired Below. _____________________
The disputed role-in-the-offense adjustments originated
with the Probation Department. It recommended two-level
enhancements under subsection (c) even though it acknowledged in
the PSI Reports that the Rostoffs were "principal[s]" who
"participated in the management and coordination of the scheme"
and who "received a larger share of the proceeds of this
conspiracy." The government objected to the proposed
adjustments, emphasizing the size and complexity of the plot.
The Probation Department stood firm. Curiously, however, even
while rejecting the objection, it conceded in an addendum to
Steven Rostoff's PSI Report that the criminal activity was
"extensive," and that all five defendants had been "principal
29
participants" in it.
The government renewed its objection before the
district court, but to no avail; Judge Zobel accepted the
Probation Department's recommendations on this subject without
making any independent findings. Accordingly, each brother
received a two-level enhancement under subsection (c).
B. Standard of Review. B. Standard of Review. __________________
Role-in-the-offense determinations are innately fact-
specific. The court of appeals must, therefore, pay careful heed
to the sentencing judge's views. See United States v. Ocasio, ___ ______________ ______
914 F.2d 330, 333 (1st Cir. 1990). It follows that our standard
of oversight is deferential: "absent mistake of law, we review
such determinations only for clear error." United States v. ______________
Dietz, 950 F.2d 50, 52 (1st Cir. 1991). Questions of law _____
engender de novo review. See United States v. Brewster, 1 F.3d __ ____ ___ _____________ ________
51, 54 (1st Cir. 1993).
C. Analysis. C. Analysis. ________
In ruling that subsection (c) applied, the district
court necessarily found that the Rostoffs were "organizer[s],
leader[s], manager[s] or supervisor[s]" of the criminal
enterprise. U.S.S.G. 3B1.1(c). Neither side has challenged
this finding. The question on appeal, then, is whether the
defendants' criminal activity "involved five or more participants
or was otherwise extensive," and, thus, fell outside the
parameters of subsection (c).
The government's assertion that the criminal activity
30
involved at least five participants is ironclad. For one thing,
the Probation Department's finding to this effect is essentially
unchallenged. For another thing, inasmuch as the jury found all
five defendants guilty on the conspiracy count, the sentencing
court was bound to conclude that the criminal activity involved
no fewer than five participants. See United States v. Weston, ___ ______________ ______
960 F.2d 212, 218 (1st Cir. 1992) (explaining that under the
guidelines "a guilty verdict, not set aside, binds the sentencing
court to accept the facts necessarily implicit in the verdict").
Despite the impeccable provenance of this fact, the
brothers try an end run around it. They contend that U.S.S.G.
3B1.1(a)-(b) does not apply because, while they may have
exercised leadership in a criminal enterprise that had at least
five members, neither of them recruited, controlled, or directly
supervised four other people.14 We need not dwell upon the
correctness of the Rostoffs' self-assessment, however, for their
end run takes us on a fool's errand.
Since the relevant language of subsections (a) and (b)
is disjunctive, either extensiveness or numerosity is a
sufficient predicate for a three- or four-level upward
adjustment. See United States v. Hall, 996 F.2d 284, 287 (11th ___ _____________ ____
Cir. 1993); Dietz, 950 F.2d at 53-54. In this instance, a _____
careful review of the record leaves no room to doubt the
____________________
14The operative number of other persons is four rather than
five, since the defendant himself must be counted as a
participant, see United States v. Tejada-Beltran, ___ F.3d ___, ___ _____________ ______________
___ n.9 (1st Cir. 1995) [No. 94-1780, slip op. at 18 n.9], and
the defendant presumably is under his own control.
31
extensiveness of the criminal enterprise. Thus, we need not
inquire into the attributes that might or might not be
essential if the enhancement depended upon a finding of
numerosity.15
Unlike numerosity, extensiveness does not depend upon a
finding that a criminal activity embraced no fewer than five
criminally responsible participants, see United States v. ___ ______________
Melendez, 41 F.3d 797, 800 (2d Cir. 1994); Dietz, 950 F.2d at 53- ________ _____
54, much less a finding that the activity included four or more
persons under the defendant's direct control. Rather, a
determination that a criminal activity is "extensive" within the
meaning of section 3B1.1 derives from "the totality of the
circumstances, including not only the number of participants but
also the width, breadth, scope, complexity, and duration of the
scheme." Dietz, 950 F.2d at 53. _____
Here, the conspiracy lasted for over three years,
encompassed a bare minimum of 140 fraudulent loans, consumed
millions of dollars, affected many lives, and involved a legion
____________________
15Some courts have held that, when the applicability of
3B1.1(a) depends upon numerosity rather than extensiveness, the
defendant must be shown personally to have controlled no fewer
than four other participants. See, e.g., United States v. ___ ____ ______________
Carson, 9 F.3d 576, 584 (7th Cir. 1993) (stating that to warrant ______
invoking subsection (a), the defendant must have had "some
control, direct or indirect, over at least four other
participants in the offense"), cert. denied, 115 S. Ct. 135 _____ ______
(1994); United States v. Reid, 911 F.2d 1456, 1465 n.8 (10th Cir. _____________ ____
1990) (same), cert. denied, 498 U.S. 1097 (1991). Other circuits _____ ______
take a different position. See, e.g., United States v. Dota, 33 ___ ____ _____________ ____
F.3d 1179, 1189 (9th Cir. 1994), petition for cert. filed (U.S. _________________________
Jan. 9, 1995) (No. 94-7604). Both the validity and the
permutations of this interpretation of 3B1.1(a) are open
questions in this circuit.
32
of people beyond the five named defendants. On this record, we
are compelled to conclude that the defendants' criminal
activities satisfy the extensiveness standard that is built into
U.S.S.G. 3B1.1(a)-(b). Consequently, the two-level enhancement
cannot stand: if the district court impliedly held that the
defendants' criminal activity was not extensive, it committed
clear error, and if the court applied section 3B1.1(c)
notwithstanding the extensiveness of the criminal activity, it
misapprehended the law. Either way, the court's crafting of the
Rostoffs' adjusted offense levels undervalued their respective
roles in the offense, requiring resentencing.16
IV. CONCLUSION IV. CONCLUSION
We need go no further. For the reasons stated, we
affirm the convictions of all defendants, and affirm the
sentences meted out to the defendants Harris, Bonaiuto, and
DiCologero. However, we vacate the sentences imposed on the
defendants David and Steven Rostoff, and remand their cases for
resentencing in light of the need for altered role-in-the-offense
determinations.
Affirmed in part, vacated in part, and remanded for Affirmed in part, vacated in part, and remanded for _______________________________________________________
further proceedings consistent with this opinion. further proceedings consistent with this opinion. ________________________________________________
____________________
16The government maintains that David Rostoff's offense
level should be enhanced by four levels pursuant to U.S.S.G.
3B1.1(a) and Steven Rostoff's offense level should be enhanced
by three levels pursuant to U.S.S.G. 3B1.1(b). We take no view
of these particulars, leaving the resolution of such interstitial
questions to the district court.
33
CONCURRING OPINION FOLLOWS CONCURRING OPINION FOLLOWS
34
Stahl, Circuit Judge, concurring. While I agree with _____________
the majority's result and with much of its reasoning, I cannot
agree that the prosecution's "reticence" at recommending the
degree of departure should animate our review of the
reasonableness of the district court's departure decision.
We review the direction and degree of unguided
departures for reasonableness. United States v. Diaz-Villafane, _____________ ______________
874 F.2d 43, 49 (1st Cir. 1989); see also 18 U.S.C. 3742(e)(3). ___ ____
In determining whether a sentence is reasonable, we proceed with
"``full awareness of, and respect for' the sentencing court's
``superior "feel" for the case.'" United States v. Rivera, 994 ______________ ______
F.2d 942, 950 (1st Cir. 1993) (quoting Diaz-Villafane, 874 F.2d ______________
at 50). Accordingly, the standard of review "is quite
deferential to the district judge." United States v. Hernandez _____________ _________
Coplin, 24 F.3d 312, 316 (1st Cir. 1994). We have never informed ______
our deference by what the prosecutor recommends, either for
upward or downward departures.
The majority states that if the government fails to
recommend a downward departure when invited to do so, "the
government has an especially hard row to hoe in its effort to
convince us that the district court displayed unreasonable
generosity in shaping the departures," Majority at 22, and that ________
"the government's silence in the face of the lower court's
timeous request for enlightenment concerning the appropriate
extent of the departures affects our assessment of the
departures' reasonableness," id. at 23. With this, the majority ___
35
appears to adopt a waiver-like analysis, such that a prosecutor
who fails to recommend an appropriate sentence risks a near-
automatic affirmance of the district court's sentence. I cannot
agree that the government's action, be it in the nature of waiver
or otherwise, has anything to do with our review of the
reasonableness of the sentence, for in assessing reasonableness,
our focus is on the facts of the case, not on the recommendations _____
made by counsel. Thus even if the government recommends a lesser
departure than the court grants, that recommendation cannot be an
appropriate basis for us to decide that the court's ultimate
decision fails the reasonableness test.
In my view, the majority requires the court and the
prosecutor to engage in an empty exercise, for to avoid affecting
appellate review, the government would routinely recommend very
small downward departures, even though it believes no departure
is warranted and even though such advice will not assist the
court any more than the government's true position that no
departure is warranted. Unlike the majority's example of a
lawyer who moves unsuccessfully for judgment as a matter of law
who must then suggest jury instructions to the court, see ___
Majority at 22, the prosecutor who unsuccessfully argues against ________
a decision to depart does not assist the court by then
recommending a downward departure of one week. In the departure
context, the government's silence carries with it the implicit
recommendation that no departure (and, therefore, at most a very __
small one) is appropriate. Thus the government's argument that
36
there is no legal authority to depart often conflates with its
position that no departure is appropriate.
I fail to understand the application of the majority's
apparent rule in this case. The majority accuses the prosecutor
of "stonewall[ing]," Majority at 23, and of "clinging stubbornly ________
to his position that the court should not depart at all," id. at ___
21. It is true that the prosecutor did not believe that the
court was entitled to consider multiple causes for the loss as a
grounds for departing downward. In addition to making that legal
argument, however, the prosecutor also argued that even if the
court had legal authority to depart, the losses being used for
sentencing purposes did not overstate the seriousness of the
defendants' offense. Thus the prosecutor, accepting that the
district court had legal authority to depart downward, still
argued that no departure was warranted. In accordance with that
view, when invited to recommend an appropriate sentence, the
prosecutor responded, "Your Honor, we believe that the sentencing
guideline ranges that were calculated by the Probation Office
were appropriate ones . . . ." The district court, hardly
pressing for more assistance, replied, "Oh, I understand. I
understand." The prosecutor went on, however, to rank the
defendants in order of the government's view of their
culpability. I would not characterize the prosecutor as having
"stonewall[ed]."
Thus, given the deference appropriate in reviewing
departure decisions, and given the facts found by the district
37
court, we cannot say that the district court acted unreasonably
in departing downward to the extent it did in this case. This is
so not because of any reticence showed by the government in
failing to recommend appropriate sentences to the court, but
rather because these departures, while significant, are
nonetheless within the realm of reasonableness.17 The
government's "silence" on the amount of departure is irrelevant,
and the deference accorded the district court is not affected by
actions of the government.
____________________
17 See Majority at 23-24 (discussing reasonableness in ___ ________
context of other departure cases).
38
Document Info
Docket Number： 93-1376
Filed Date： 4/24/1995
Precedential Status： Precedential
Modified Date： 3/3/2016