USCA1 Opinion

March 1, 1996
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 94-1852

UNITED STATES OF AMERICA,

Appellee,

v.

JACK BLACK,

Defendant, Appellant.

____________________

No. 95-1149
UNITED STATES OF AMERICA,

Appellee,

v.

HERBERT E. PLYMPTON,

Defendant, Appellant.

__________________

No. 95-1187
UNITED STATES OF AMERICA,

Appellee,

v.

JEFFREY HARRIS LAVIGNE,

Defendant, Appellant.

____________________

ERRATA SHEET

On page 3, lines 9 and 11 down, replace "Black" with "Lavigne".

On page 13, line 4, "latter" should be "later".

On page 20, last line, insert "is" between "departure" and "not

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

FOR THE FIRST CIRCUIT

____________________
No. 94-1852

UNITED STATES OF AMERICA,

Appellee,

v.

JACK BLACK,

Defendant, Appellant.

____________________

No. 95-1149
UNITED STATES OF AMERICA,

Appellee,

v.

HERBERT E. PLYMPTON,

Defendant, Appellant.

__________________

No. 95-1187
UNITED STATES OF AMERICA,

Appellee,

v.

JEFFREY HARRIS LAVIGNE,

Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Senior U.S. District Judge]

__________________________

____________________

Before

Boudin, Circuit Judge,

_____________

Coffin, Senior Circuit Judge,

____________________

and Rosenn,* Senior Circuit Judge.

____________________

____________________

David A. Schechter,
___________________

Margaret-Mary Hovarth and

______________________

Law Offices
_____________

David A. Schechter on brief for appellant Jack Black.

__________________
Charles J.
Rogers, Jr.
__________________________

on

brief

for

appellant

Herbert

Plympton.

Paul A. Dinsmore on brief for appellant Jeffrey Harris Lavigne.

________________
Jeffrey Harris Lavigne on brief pro se.
______________________
Gerard B. Sullivan,
___________________

Assistant

Whitehouse, United States Attorney,

__________

United States

Attorney,

Shel
____

and Margaret E. Curran, Assist

__________________

United States Attorney, on briefs for the United States.

____________________

February 27, 1996

____________________

____________________

*Of the Third Circuit, sitting by designation.

BOUDIN, Circuit Judge.

_____________

Appellants Jack Black,

Plympton and

Jeffrey Lavigne were indicted

and

with conspiracy

charged

interstate

commerce,

18

to

steal

U.S.C.

in November 1993

and sell

371,

Herbert

and

substantive crimes incident to the conspiracy.

with

goods

in

various

Also named in

the indictment as co-defendants were the alleged ring-leader,

Donald

St. Germain, and two others:

Lynn Smith, who

defendants,

guilty to

was Plympton's

except

for

wife.

Lavigne

specific offenses.

and

Raymond Wilbur and Joni

All

of the

indicted

Plympton, later

pled

Several other co-conspirators

pled guilty to informations.

Lavigne

trials.

At

and

Black

trial, the

were

convicted

in

government sought to

separate

jury

show that

St.

Germain organized

merchandise

a series of

thefts of truck

in 1991 and 1992.

trailers and

Typically, the thieves used a

borrowed

or stolen truck tractor

trailer.

After checking the contents, they moved the trailer

to various locations in

of the merchandise.

to haul away an unattended

Rhode Island and thereafter disposed

One storage location was at the American

Waste Paper Company in Cranston, Rhode Island; later, several

shipments were stored

at the Plympton farm

in Exeter, Rhode

Island.

In

Plympton's

conspiracy

substantive

count

counts

case,

the

against

him

relating

to

government

and

two

tried

of

dismissed

him

the

on

many

the

three

thefts

-3-3-

attributed to

Plympton

St. Germain.

indictment charged

and disposing of a shipment

moving

in interstate

Counts 1 and 2

him with

of the redacted

receiving, concealing

of stolen Lands' End merchandise

commerce in

the fall

of 1992

and of

knowingly possessing stolen goods comprising part of the same

shipment.

18 U.S.C.

2315,

659.

Count 3, based solely on

section

2315,

involved

furniture, stolen

a shipment

month or

of

so later

Pennsylvania

House

and allegedly

also

stored at the Plympton farm.

Lavigne,

St.

indicted only

U.S.C.

to

on a single

companion

count.

or

bodyguard,

He was charged

1512(b)(3) with threatening physical

delay

or prevent

information

to

commission

of a

manager

Germain's

law

federal

of American

information

one

to state

was

under 18

harm in order

Kathleen

Hartman from

providing

enforcement

officer

concerning

offense.

Hartman was

Waste

Paper Company

and had

and

federal agents.

The

the office

provided

government

charged Lavigne with twice intimidating Hartman in the spring

of 1991.

Black,

substantive

who had

count under

months' imprisonment;

46 months.

pled guilty

to

section 2315,

conspiracy and

was sentenced

Plympton to 41 months;

to one

to 60

and Lavigne to

Substantial restitution payments were ordered for

Black and Plympton, and Lavigne was fined $1,000.

-4-4-

On appeal,

Plympton and Lavigne

challenge their convictions, and

Black

and Plympton appeal from their sentences.

Plympton.
________

On this appeal, Plympton does not dispute the

sufficiency of the evidence on counts 1 and 2 but argues that

they comprised

only a single offense,

making the indictment

multiplicitous and violating the bar against double jeopardy.

More precisely, Plympton argues

that the section 659 offense

is effectively a lesser included offense within section 2315.

If it were, Plympton could not be convicted and sentenced for

both

offenses based

on the

same theft.

United States v.
______________

Parrilla-Tirado, 22 F.3d 368, 372 (1st Cir. 1994).

_______________

Under the familiar test of Blockburger v. United States,

___________
_____________

284 U.S.

299, 304 (1932), the two statutes do not punish the

same offense,

"each provision

the other does

nor is

one included

requires proof

not."

To prove

the government had to show

within the

of an additional

a violation of

End

fact which

section 659,

that Plympton stole or

property "moving as or . . . part of or .

an

other, where

concealed

. . constitut[ing]

interstate . . . shipment"; here, for example, the Lands'

shipment

when

stolen

had been

moving

in

interstate

commerce.

Section 2315,

by contrast, does not

require proof that

the theft was from interstate commerce; but it does require a

different interstate-commerce element not required by section

659.

Section 2315 punishes

receiving or disposing of goods

-5-5-

known to be stolen where such goods "have crossed a State . .

. boundary after being stolen."

shipment, after

being stolen

In this case, the Lands' End

in Pennsylvania, was

moved to

Plympton's farm in Rhode Island.

The central focus of each statute is somewhat different,

one being concerned primarily

the

other

property.

brought

in

with

the

receipt

and

Plympton's activity, in

disposition

of

stolen

the middle of the

chain,

him within the language of both.

the interstate

Blockburger test.
___________

properly

with theft and concealment and

commerce

The

applied in

And the difference

elements meets

the

mechanical

test has been criticized, but

the district

court, happens

it was

to do

no

injustice here (one trial; no increase in punishment), and is

binding upon us.

No

concerned

Blockburger problem
___________

different

is

presented by

theft--that

furniture--on a different occasion;

charge was based

of

count 3.

Pennsylvania

It

House

and in this instance the

only upon section 2315.

But on this count

Plympton

arguing

does

that

challenge

the

the sufficiency

government

failed

Pennsylvania House furniture was

to

of

the evidence,

prove

that

ever at his farm or,

the

if it

was, that Plympton knew about it.

Taking the evidence

in the light most

favorable to the

government, United States v. Robles, 45 F.3d 1, 2 (1st Cir.),

_____________
______

cert. denied,
_____________

115

S.

Ct.

1416

-6-6-

(1995),

the

jury

could

reasonably conclude

that Plympton

stolen shipments for

End merchandise was

used his farm

St. Germain; some of the

found on

the farm and

evidence

that Plympton knew it

evidence

that

Plympton

had

shipment of

K-Mart merchandise on

background,

the

evidence

to

Pennsylvania State furniture shipment was

ample

There was also

concealed

the farm.

connect

stolen Lands'

there was

was stolen.

earlier

to conceal

stolen

Against

Plympton

to

this

the

sufficient even if

not overwhelming.

Although none of

there

was

unequivocal

the furniture was

testimony

from

found at the

one

farm,

witness--Frank

Macera--that

knew

it to

Plympton received

be stolen.

the

Macera,

furniture shipment

who had

pled guilty

and

to a

criminal information covering the same transaction, was not a

very

trustworthy witness.

But the

jury

accept his testimony, which was plausible

because technical

was entitled

to

enough, especially

and eye-witness evidence

added small

but

useful elements of corroboration.

Finally,

respects.

Plympton

First, in

district court

of justice;

lied

contests

calculating

his

sentence

the

imposed a two-level increase

when he

denied knowing

several

offense level,

specifically, the court found

at trial

in

the

for obstruction

that Plympton had

that the

Lands' End

merchandise in his barn was stolen and knowing anything about

the

Pennsylvania House furniture.

No one disputes that the

-7-7-

increase was required if Plympton did

at trial.

U.S.S.G.

3C1.1;

in fact commit perjury

United States
_____________

v.

Hernandez
_________

Coplin, 24 F.3d 312, 317 (1st Cir.), cert. denied, 115 S. Ct.
______
____________

378 (1994).

Plympton says that the evidence was insufficient to show

that he knew that either load of furniture was stolen. But we

have already said that there was enough to convict as to

Pennsylvania House furniture

theft and the evidence

him as to the Lands' End theft was even stronger.

enough

to convict, it was

determination

standard.

Cir. 1995).

under

the

United States v.
_____________

more than ample

preponderance

If

the

against

it was

for a sentencing

of

Lombard, 32 F.2d
_______

the

evidence

170, 176 (1st

The claim of inadequate evidence is too weak to

warrant further discussion.

After

calculating

departed upward by

the offense

level, the

two additional levels.

trial judge

The grounds

for

this departure were that after conviction but before sentence

Plympton created

daughter and

an irrevocable trust

transferred to

for his six

year old

it, without consideration,

real estate and business assets.

his

The trial judge found after

a hearing at which Plympton testified that the purpose of the

transfer was

to frustrate

restitution and

collection

of a

likely fine

that Plympton himself regarded

"a sham."

-8-8-

or

the trust as

Plympton

arguing

now

(as he

provide for his

pay

attempt

Plympton

district

his

court's

purpose was

daughter during his imprisonment

finding,

simply to

and in the

But the evidence also showed that Plympton

the trust shortly after his wife had been ordered to

over $400,000

warned

the

testified) that

event of divorce.

created

attacks

in

by his lawyer

restitution; that

that the trust

to avoid payment

intended to

release and

might be viewed

of restitution or

return to

expected to be

Plympton had

operate his

able to use

been

as an

fines; and that

business after

the real estate

as

well.

Fact-findings

by

the

district

court

in

sentencing,

including departures, are based on the preponderance standard

and subject

to reversal only

if clearly erroneous.

States v. Porter,
______
______

924 F.2d 395,

court's

as

findings

permissible inferences

testify.

Plympton's aim

by a fact-finder

and

1991).

The

attitude

are

who heard

Plympton

They are not inconsistent with the further finding

that Plympton also

____

his

to

399 (1st Cir.

United
______

sought through the

daughter and manage his

trust to provide

business while in

prison.

for

The

end was proper but the means were not.

Although

terms,

we have

Plympton does

not

also considered

argue the

whether the

issue in

these

district court

accepted, and

the evidence supports,

that Plympton acted

in bad faith.

the government's claim

Without this

additional

-9-9-

element, we might

court's language

have serious concerns.

("sham," "fraud")

But the

makes clear that

district

it did

find bad faith and, again, the inference is permissible under

the clearly erroneous standard.

Our concerns, therefore, are

for another occasion.

The most interesting issue is one that Plympton does not

raise, namely,

restitution

whether the

order is

While Plympton did

appeal, we would at

if

attempt to

a permissible

not preserve

frustrate a fine

basis for

the issue nor

least be faced with a

or

a departure.

argue it

on

plain error issue

we thought that the departure were not authorized.

There

is no need to discuss the extent of deference that may be due

to

942

the district court, see United States v. Rivera, 994 F.2d

___ _____________
______

(1st

Cir.

1993),

since we

agree

that

its

implicit

interpretation of the guidelines was correct.

defendant's

attempt

to

frustrate

the

actual

or

anticipated judgment

obstruction

by secreting assets is

of justice;

indeed, if

hide himself before sentencing

would

plainly be

subject

to

account.

argue

an

covered by

automatic

U.S.S.G.

3C1.1,

that the secreting of

guideline

but, if

not, then

closely akin to

Plympton had

sought to

in order to avoid

the obstruction

two-level

guideline and

enhancement

Comment. (n. 3(e)).

assets was covered

by analogy

-10-10-

prison, he

on

that

One could

by the same

Plympton's conduct

properly

qualified

for

departure provision.

Plympton might

given a

is

increase

U.S.S.G.

under

the

to

two-level

give him

an

departure mechanism.

results from

the

catchall

5K2.0.

protest that, since he

Plympton might respond

one

departure

two-level adjustment for obstruction

double counting

through

a different

has already been

by perjury, it

additional two

Of

levels

course, the

act of

latter

obstruction; but

that the guidelines contemplate

increase,

no

matter

how

many

acts

only

of

obstruction occur and regardless of whether the second act is

considered under section 3C1.1 or 5K2.0.

Here,

not

Plympton's attempt

restitution was

a new and

different act of

just additional perjury but

misbehavior with a different

is

to frustrate

greater than

victim; and the sum of

either standing

alone.

Even if

the two

both are

treated as forms of obstruction and are within section 3C1.1-

-a matter we need not decide--section 5K1.0 permits departure

for an aggravating circumstance

not adequately"

considered by the guidelines.

court could fairly

conclude that this case fell

"heartland" and warranted a

v. Merritt,
_______

"of a kind, or to a degree,

_______________

The district

outside the

departure.

Accord United States

______ _____________

988 F.2d 1298, 1310-11 (2d

Cir.), cert. denied,

____________

113 S. Ct. 2933 (1993).

Plympton's last

court acted

sentencing claim is

improperly in requiring him

that the

district

to make restitution

-11-11-

either at all or within 60 days.

None of the arguments under

this

head were

presented in

the district

court.

We have

examined them all and conclude that none of the arguments now

offered even arguably points to plain error.

Lavigne.
_______

evidence

Lavigne,

like

Plympton,

urges

that

the

was not sufficient to permit a jury to convict him.

The single violation

1512(b)(3)

which

"knowingly

uses

charged in his case was

in

pertinent

intimidation

part

of

of 18 U.S.C.

punishes

physical

anyone

who

force,

[or]

threatens . . . or attempts to do so . . . with intent to

. hinder,

delay, or

prevent the

communication to

a law

enforcement officer . . . of the United States of information

relating

to

the

commission

or possible

commission

of

Federal offense . . . ."

The evidence

against Lavigne,

taken in the

light most

favorable to the

the jury to

government, Robles, 45 F.3d at 2, permitted

______

find the

officer manager

following.

of American Waste

connection

to its owner, Frank

bankruptcy

and St.

Germain

company's premises to

Hartman

was aware

record-keeping

Kathleen

and

Paper and had

Luchka.

other

The

persuaded Luchka

be used to store

of these

Hartman was

property.

-12-12-

a romantic

company was in

to allow

the

the stolen trailers.

arrangements and

tasks

the

concerning

assisted with

the

stolen

In February 1991,

Hartman secretly contacted the

Rhode

Island State Police and reported that the site was being used

for

stolen

premises

police,

property.

On April

3,

1991,

the

company's

were raided by the FBI, the state police, and local

and

a number

of

stolen

Hartman continued to cooperate

later with federal agents.

trailers were

recovered.

confidentially with state and

The conduct for which Lavigne was

indicted comprised two episodes.

First, on the day

present

of the raid, Luchka and

Hartman were

during the search; that evening they met at a nearby

bar and were joined by St. Germain and Lavigne.

With Lavigne

barring Hartman's

Germain told

exit from the

bar booth, St

Hartman that he would have

her silenced if she spoke

enforcement

Hartman went

restrooms,

Lavigne

agents.

As

she met Lavigne who was

stopped and,

apparently

downstairs

to law

to

the

returning up the stairs.

without

saying

anything,

lifted his pant leg to reveal a gun in an ankle holster.

Second, a week or

another bar

St.

and again

Germain and Luchka

Luchka that he

so later, Hartman and Luchka

encountered St. Germain

went outside where

thought that Hartman had

were at

and Lavigne.

St. Germain told

"blown the whistle"

on the scheme.

When they returned, St. Germain asked Hartman

if she had spoken with anyone and, with an oblique reference,

indicated

that she

would come to

harm if she

did.

During

this warning, Lavigne, who was standing between them with his

-13-13-

foot resting on a bar stool, lifted his pants leg to reveal a

leather holster on his ankle.

From this evidence alone, the jury was entitled to infer

that

Lavigne

violence if

was

nothing in the

1990).

threatening

Hartman

with

she cooperated with law enforcement authorities.

Lavigne's pantomime

United States
_____________

deliberately

was patently

a threat of

statute requires that

v.

On appeal,

Balzano, 916
_______

F.2d

violence, and

the threat be

1273, 1291

(7th

Lavigne offers a more antiseptic

of what happened,

but we

have reviewed

conclude that the

jury was entitled to find the

verbal.

Cir.

version

the transcript

and

facts as we

have recited them.

Lavigne raises

a series of objections

based on alleged

misconduct by the prosecution and on the alleged incompetence

of his

trial counsel.

The misconduct

introduction of testimony

claim is based on the

by two FBI agents that Lavigne had

admitted intimidating Hartman; this statement was made during

a polygraph

not

have

examination and, it is

been used

assistance claim

by

argued, therefore should

the prosecution.

The ineffective

rests on trial counsel's

failure to elicit

two prior state felonies

which were subsequently elicited by

the prosecution; the failure of counsel to call two witnesses

who

allegedly would have

failure to object to

exonerated Lavigne;

and counsel's

the introduction of Lavigne's statement

during the polygraph examination.

-14-14-

As

to

examination,

the

statements

made

during

the

polygraph

there was no error here, let alone plain error.

Although the results of polygraph examinations are

generally

inadmissible, see United States v. Scarborough, 43 F.3d 1021,

___ _____________
___________

1026

(6th

examination

Cir.

1994),

that were

it

was

introduced,

admissions to the examiners.

not

but

the

results
_______

of

the

only Lavigne's

own

Lavigne had signed a waiver of

his right against self-incrimination, and he offers no reason

why the fact that the statements were made during a voluntary

polygraph

examination

Lavigne's claim of

should

affect

their

admissibility.

prosecutorial misconduct is

thus without

merit.

Absent unusual circumstances, we do not review claims of

ineffective assistance

trial court.

that have not been

United States v. Mala,

_____________
____

Cir. 1993)

cert. denied,
____________

114 S. Ct.

Lavigne's

claims involves

questions

resulting

prejudice

facts.

We

do not

and

7 F.3d 1058, 1063 (1st

1839 (1994).

of trial

requires inquiry

think that

raised before the

"the record

into

Each of

tactics

and

underlying

is sufficiently

developed to allow reasoned consideration of the claim," id.,

___

and

therefore

decline

to

reach

Lavigne's

ineffective

assistance of counsel claim.

Black.
_____

Black was arrested in the course of delivering a

portion of a stolen load of Pennsylvania House furniture from

Plympton's farm

to a

flea market in

-15-15-

Revere, Massachusetts.

He later pled

guilty to

participation

in

the

two counts, one

overall

conspiracy

relating to the Revere delivery.

exchange,

recommend

the

government

sentence

guideline range

at

and to file

charging him

and

18 U.S.C.

agreed

the low

among

end

the

other

371, 2314.

other

of

with

things

the

In

to

applicable

a downward departure

motion if

Black provided substantial assistance.

The presentence report computed Black's adjusted offense

level

as 14, based

on the value of

the goods attributed to

Black and on other adjustments (upward

planning

U.S.S.G.

and

downward

2B1.1,

computed Black's

for

3E1.1.

acceptance

The

for more than minimal

of responsibility).

presentence

criminal history points as

report

also

21, placing him

in category

which

VI, the

highest category.

were accepted

by

the district

These calculations,

court, established

range of 37 to 46 months' imprisonment.

At the

court

outset of

expressed concern

adequately

reflect

letting defense

the

the sentencing hearing,

already accumulated

reviewed

Black's

the resulting

full criminal

counsel argue

district court

were needed

that

pointed out

against an

that at

the district

range did

history.

Black's criminal

in category

history

VI.

After

upward departure,

age 32,

21 criminal history points,

to place him

not

Black had

8 more than

The court

in detail,

then

describing a

-16-16-

succession

of offenses

and

penalties starting

at age

Black's juvenile file being sealed:

At

age 18

damage,

larceny,

larceny.
larceny

assault, disorderly
assault

Age 20
over

assault

$500.

and

conduct, malicious
battery.

At

and battery.

This is

breaking

19

Age 20
into

an

automobile and stealing a battery and some plumbing

tools which

the

Defendant got

custody and

that counts for

apparently a

one point.

Age

year
20,

18,

disorderly

conduct.

Age

20,

possession

controlled substance which is diazotan.

years suspended.

He's

suspended sentence.

He

gets two years

year
Age

counts for

suspended
20,

possession

Counts for three

is a 1979
which

one point.

sentence,
of a

points.

to serve.

Age 20, shoplifting.

Age 20, conspiracy to commit larceny,

That

He got two

a violator on a preexisting

That counts for three points.

$500.

of

larceny over
That's a

three years
stolen

one

probation.

motor

vehicle.

One year custody.

This

Ford econoline van which had been stolen

the

Defendant

possession

of

custody.

was

marijuana,

Age

20,

driving.
one

Age

20,

30

days

point,

possession

of

stolen

motor

vehicle which a number of other charges, possession

of needle and syringe.
points.

Three years custody.

Age 21, armed

Mart held up

robbery.

at gun point

This

in Warwick.

years, 11 to serve and 19 suspended.

three points.
on that.

That counts
Age

arrest.
plus

He

got 30

It counts for

Since January 27 of 1994, age 29, passing

He got

three.

is a Dairy

Apparently there's a violation there

counterfeit certificates.
bill.

Three

Age

five

years, six

for two.
29,

That's a counterfeit $20

months to

The armed robbery counts for

disorderly

conduct,

30, simple assault.

two points

serve.

because

resisting

Counts for

the Defendant

one

committed

this

offense while

he was

on probation,

and one

point because he was released from prison less than

two years prior

to the instant offense.

All this

in 32 years.

The district

criminal history

actual

level

court then formally concluded that Black's

category did

not adequately

represent his

criminal history and departed upward from level 14 to

17.

This

increased the guideline

-17-17-

range to

51 to 63

months.

The government recommended a sentence at the low end

of the range, as it

had promised but declined to move

departure under

U.S.S.G.

had

useful.

not proved

Black to 60 months'

5K1.1

The

for a

because Black's assistance

district court

then sentenced

imprisonment, explaining its reasons for

this choice.

On

appeal, Black's

court's decision

stated.

The

to

depart upward.

guidelines permit

court believes

that the

"adequately reflect the

criminal conduct,"

occasion" a

only challenge

is to

the district

The "law"

is

such a departure

criminal history category

seriousness of the

U.S.S.G.

where the

does not

defendant's past

4A1.3, and this

departure even for a category

simply

includes "on

VI defendant with

an "egregious,

guideline

serious criminal

range

for Criminal

record [for whom]

History

Category

even the

VI is

not

adequate." Id.
___

Putting aside

without

the

a procedural

merit, Black

departure

objection that we

makes two different

decision:

the

first

is

arguments against

departure was justified on the present facts.

of

departure

guidelines,

involved

is

the question

circumstances here turns on

for

clear

error,

deferentially under "a

and

expressly

whether one

think is

claim that

no

Since the type

permitted

was justified

by

the

by the

questions of fact, reviewed only

of

law

application,

standard of reasonableness."

reviewed

United
______

-18-18-

States v. Diaz-Villafane, 874

______
______________

F.2d 43, 49 (1st

Cir.), cert.
_____

denied, 493 U.S. 862 (1989).

______

The facts are essentially undisputed--no one claims that

the court misdescribed Black's criminal history--so the issue

is

one

of reasonable

judgment

in

applying the

departure

criteria

court

to particular facts.

acted mechanically,

because

Black

category

VI.

happened:

had

This is

the

differential but

Black's

far

actual

Black

says that the district

imposing the

more points

not a

district

than

the

minimum for

complete description

judge

mentioned

followed this with a

criminal

departure basically

history,

the

of what

point

lengthy recitation of

which

we

have

already

quoted.

What this record

career

in

showed was that in

starting at age 18, Black

trouble except for one

offenses

and on

one

occasion

had been almost constantly

period spent in

involved drugs, theft,

firearms;

a 14-year criminal

prison; that his

repeated physical violence,

that

despite

considerable

leniency in punishment at

his

criminal career;

early stages, he regularly resumed

that even

armed robbery did not dissuade

of crime upon his

a substantial

sentence for

him from resuming this career

release; and that he had

committed crimes

while on suspended sentence and probation.

It

is plain that the district

had devoted himself

to a

court thought that Black

career of crime

-19-19-

which, given

his

still

young age,

sentence

of

three

guidelines--was

community,

was

nor

not

Black

over.

It followed

four

years--as

provided

by

the

protection

to

the

who

had

to

very

likely

effectively shrugged

robbery.

far from

substantial

to

off an

deter

defendant

eleven year sentence

that a

for armed

Indeed, the government reports that, when arrested,

allegedly

told the

state

police

detective that

he

"could do the time on his head."

The

implicit concerns

of the

deemed pertinent by the cases which

and

district court

are ones

advert to the "frequency

repetitiveness of the felonious behavior," United States

_____________

v.

Ocasio,
______

914 F.2d 330, 335 (1st Cir.

1990), and the risk

of recidivism, United States v. Emery, 991 F.2d 907, 913 (1st

_____________
_____

Cir. 1993).

this

It is hard

to quantify these concerns

but, on

issue, we think that the district court was entitled to

take note of the fact that Black had over 150

points needed for category

VI.

percent of the

We agree with Black

that in

some cases departures have been based on worse records but do

not think that the

district court's decision to

depart here

was unreasonable.

It would have been helpful

if these inferences had been

spelled out by the district judge.

n.3.

But we think they

recitation

of Black's

Ocasio, 914 F.2d at 335 &

______

are obvious in the district court's

criminal

history and

certain

other

remarks

made by the judge

at sentencing.

Upward departures

-20-20-

are

serious

pressures on

business; and,

the district

although

mindful

courts, we urge

of the

time

again that

some

expression of reasoning, as well as fact-finding, accompany a

departure.

E.g., Emery, 991 F.2d

____ _____

at 913.

But

we will not

remand for an explanation that is so clearly implicit in what

the district court found.

Black's second argument is

was

unreasonable or

increase from

level 14 to

history category,

range

which

can

percentage, it

be

level 17, given

measured

in

increase of

which sounds

it increases

midpoint of

inadequately explained.

amounted to an increase

is an

about one-third,

months,

at least

that the degree of departure

the

each range,

Black's criminal

in the sentencing

several

ways:

minimums and

by about 15

as

maximums of

substantial; but in

ultimate range,

The

terms of

measured by

the

months--something less

than overwhelming.

The latter figure alone suggests that, by

a standard of

reasonableness,

the

degree

of

disproportionate,

given

rationale

district court

of the

Black's

the

departure

record

and

for making

the

was

not

implicit

any departure.

Even looked at in percentage terms, a 30 percent departure is

not out

of line with past precedent,

points

as a

Emery,
_____

991

departure

crude

F.2d

for

way of

at

comparing like

914 (upholding

offender with

using criminal history

20

-21-21-

41

with like.

Cf.
___

percent,

21-month

criminal history

points);

Brown,
_____

899

F.2d

at

96 (upholding

133

percent,

12-month

departure for offender with 20 criminal history points).

But Black mainly attacks the

degree of the departure on

the ground that the district court did not explain its choice
_______

of three levels

that

rather than some other

the court gave no explicit

choice of a particular

departure

explanation

figure.

is involved, it

It

is true

explanation directed at the

But

may be

over and above that

_______________

figure.

at least where a

small

difficult to

provide any

given for the

decision to

depart.

Thus,

we have held

that "a reasoned

justification

for [the] decision to depart"--readily inferred in this case-

-may

also

appellate

constitute "an

tribunal

can

departure's extent."

In

quite

this case

adequate

gauge

the

from which

reasonableness

an

of

the

by months,

was

Emery, 991 F.2d at 336-37.

_____

the

departure, measured

modest and Black's only

he did not

summary

practical concern is with why

receive even less.

It is

hard to know

how the

district court could have explained this choice--to depart by

____

three

levels instead of one

or two--except to

grounds

for departure

wrist.

Given the modesty of the departure and its alignment

with prior

called for

cases, such as Emery

_____

more than

say that the

a slap

and Brown, we do
_____

on the

not think

that

casts

the lack of an explanation can be deemed prejudicial or

any

doubt

on

the

facial

departure.

-22-22-

Affirmed.
________

reasonableness

of

the

-23-23-