USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________

No. 95-1674

UNITED STATES,

Appellee,

v.

PHILIP GRANDMAISON,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

___________________

____________________

Before

Boudin, Circuit Judge,

_____________
Bownes, Senior Circuit Judge,
____________________
and Keeton,* District Judge.
______________

____________________

Martin G. Weinberg, with whom Oteri, Weinberg & Lawson, Cathy

__________________
_________________________ ______
Green,
_____

and Kimberly Homan,

_______________

appellant.

Sheketoff & Homan,

__________________

were on

brief

Peter E. Papps, First Assistant United States

______________

Attorney, with w

Paul M. Gagnon, United States Attorney, were on brief for appellee.

______________

____________________

March 1, 1996
____________________

______________________
*Of the District of Massachusetts, sitting by designation.

BOWNES, Senior Circuit Judge.

BOWNES, Senior Circuit Judge.
____________________

pursuant to a plea

appellant

Philip

On February 8, 1995,

agreement with the government, defendant-

Joseph

Grandmaison

("Grandmaison")

pled

guilty to a one count information charging him with utilizing

the mail system to defraud Nashua, New Hampshire, citizens of

their right to the honest services of their public officials,

in violation of

appeals

the

18 U.S.C.

eighteen-month

1341, 1346.

sentence

of

Grandmaison

now

imprisonment

he

received, contending that the district court failed to depart

downward

from

the

minimum

prison

term

mandated

by

the

Sentencing Guidelines ("Guidelines") because of the erroneous

view that

district

it lacked authority to

court

misapprehended

do so.

its

We

agree that the

authority

to

depart

downward

on

Sentencing

aberrant

Guidelines Manual

4(d) (1994).

to

the

court

departure

warranted

grounds.

Ch. 1,

Pt. A,

See
___

Federal

Introduction

Accordingly, we vacate the sentence and remand

district

downward

behavior

for a

on the

in this case.

determination

basis

of

of

whether a

aberrant behavior

is

Jurisdiction stems from 18 U.S.C.

3742.

I.
I.

THE FACTS
THE FACTS

We

unobjected-

Report

consider

to

("PSR"),

guilty, and

the

portions

the

of

facts

the

information

the sentencing

as

set

forth

in

the

Presentence Investigation

to

which

defendant pled

hearing transcript.

See, e.g.,
___ ____

-22

United States v. LeBlanc, 24 F.3d 340, 342 (1st Cir.), cert.

_________________________
_____

denied, -- U.S. --, 115

______

Brewster,
________

as

an

S. Ct. 250 (1994); United States v.

_________________

1 F.3d 51, 52 (1st Cir. 1993).

"at-large" member

("Board") from 1986 to

on

1993.

the Nashua

Grandmaison served

Board

The Board consists

of Alderman

of fifteen

members -- six of whom are elected

are

at-large and nine of whom

elected from one of Nashua's nine electoral wards -- and

functions

municipal

as

Nashua's

legislation

municipal construction

chief

and

legislative

approving

projects.

arm,

all

enacting

financing

Grandmaison

Board's Secondary School Coordinating Committee

and

served on the

("SSCC") and

the Joint Special School Building Committee ("JSSBC").

Like many of his aldermanic colleagues, Grandmaison

also

had

Director

a full-time

of

Construction"),

1989

to

1993.

Construction's

the

job.

Eckman

He

was employed

Construction

as Marketing

Company

("Eckman

a Bedford, New Hampshire-based company, from

In

addition

to

Marketing Director,

in a number of charitable activities.

his

job

as

Eckman

Grandmaison participated

In 1990, the Board

began seeking construction bids

for a $6.3 million project, the renovation of Nashua's sixty-

year old

the JSSBC,

play

Elm Street Junior High

the two

integral

contractor and

roles

School.

committees on which

in

selecting

Both the

Grandmaison served,

school

in overseeing the construction

-33

SSCC and

construction

process.

The

SSCC, inter alia, preselects school construction contractors,

_____ ____

oversees

school construction or

recommendations

payments.

Nashua

concerning

renovation work,

contractor

and makes

expenditures

and

The JSSBC, which is comprised of both alderman and

School

Board

members,

reviews

the

SSCC's

recommendations regarding contractors, payments, and contract

modifications.

Eckman

lucrative Elm

the conflict

SSCC

and

Construction

Street School Project

in interest,

the JSSBC

submitted its

submitted

bid.

for

for

the

In

spite of

Grandmaison remained on

both the

months

He publicly

contract.

bid

after Eckman

Construction

recused himself

from both

committees on January 9, 1991, but only after questions

raised

about his

subcommittee

were filled

connections to

vacancies

were

Eckman Construction.

created by

The

Grandmaison's departures

by Alderman Thomas Magee

("Magee"), an at-large

member of the Board and purported construction aficionado.

After

continued

secretly

an

as an

recusal from the SSCC and JSSBC, Grandmaison

at-large

member of

the

Board.

He

also

took steps to manipulate the contacts he enjoyed as

alderman

to

Eckman

Construction's

advantage.

From

February 1991 until shortly before the Elm Street Project was

completed,

Grandmaison

lobbied

three

of

his

aldermanic

colleagues -- Magee, Steve Kuchinski ("Kuchinski"), and

Ackerman

("Ackerman"),

SSCC

chairperson

--

on

Anne

Eckman

-44

Construction's behalf.

materials

both

gave

and video cassettes

Ackerman

("Eckman"),

Grandmaison distributed informational

and

Magee.

president

gratuities,

of

gifts,

about Eckman

At

the

behest

construction to

of Hal

Eckman Construction,

and

other

things

Eckman

Grandmaison

of

value

to

Kuchinski,

Magee,

and

contract selection

Ackerman

votes.

included

pay-per-view

campaign

contributions,

support.

Grandmaison also

before

and

after

These gratuities and

sporting

and

events,

promises of

major

gift items

dinners,

future

money,

political

extended Ackerman a personal loan

and steered Eckman Construction printing jobs to the printing

business she owned.

These lobbying

efforts eventually bore fruit.

June 1991, the Board awarded

to

Eckman Construction

Kuchinski

casting

contract,

which

Construction,

by a

the

the

the Elm Street Project contract

vote of

tie-breaking

Board

served as

In

eight to

vote.

subsequently

the basis

for the

seven, with

The

mailed

project

to Eckman

charges brought

against Grandmaison.

violating

18 U.S.C.

Specifically,

that

mail fraud statute.

Grandmaison utilized

forward a fraudulent

pertaining,

alderman and

inter
_____

alia,
____

-55

a host of

to

the

scheme in violation

honest, faithful, and impartial

before becoming an

laws

1341, 1346, the

it maintained

mail system to

the oath of

The government charged Grandmaison with

of

service he took

state and

conflicts

of

local

interest,

influencing discretionary decisions

acceptance of

pecuniary benefits

by public servants,

by public officials.

New Hampshire Revised Statutes Annotated

Supp. 1994);

7:59.

and

Nashua, N.H.,

See
___

640 et seq. (1986 &

__ ____

Nashua, N.H., Rev. Ordinances

2-276, 2-278;

and

2-273, 2-274,

Rev. Ordinances

7:56,

The government also prosecuted Magee and Kuchinski for

their roles in this case.

Pursuant to a

Grandmaison pled

plea agreement with the

guilty to a one

government,

count information charging

him with utilizing the mail system to defraud Nashua citizens

of their

right

to

the

honest

services

of

their

public

officials.

and

The district court scheduled a sentencing hearing

prior

thereto

Department.

recommended

fifteen.

The

received

PSR prepared

total

This

level

decrease

had

for

Department

placed

no

from

by the

the

Probation

Probation Department

guideline offense

reflects

committed

acceptance

of

2C1.7(b)(1)(B), 3E1.1

Grandmaison

resulting in

PSR

an

level

eight

prior criminal

him

in

a sentencing

the crime

of

level

offense because a public official

making position

U.S.S.G.

months.

adjusted

recommendation

increase in the base

decision

in a

and a

three

responsibility.

See
___

(a)

and

record,

Criminal History

range of eighteen

(b).

the

Because

Probation

Category

I,

to twenty-four

II.
II.

THE SENTENCING HEARING

THE SENTENCING HEARING

-66

At

downward

the sentencing hearing, Grandmaison requested a

departure

corresponds

to a

to

an

offense level

sentencing range

of zero

of

eight,

to six

which

months.

Grandmaison based this request on three interrelated grounds:

1)

his

within

criminal

the

conduct

meaning

of

constituted

Guidelines

"aberrant

Manual

Ch.

behavior"

1, Pt.

A,

Introduction

4(d); 2) his extraordinary contributions

and

the

community

were

not adequately

to family, friends,

addressed

by

the

Guidelines; and 3) the facts of his case warranted a downward

departure by analogy to section 2C1.3 of the Guidelines.

defense

also submitted

Grandmaison's

hearing.

record,

aberrant

good deeds

Based

the

on

one

hundred

and

character

these letters

government agreed

behavior grounds was

letters

that

attesting

at the

to

sentencing

and Grandmaison's

downward

The

prior

departure on

appropriate and recommended a

reduced prison sentence of twelve months and one day.

The district court

declined to depart

downward on

any of the three grounds advanced by Grandmaison.

citing

19

our decision in United States v. Catucci, 55 F.3d 15,

________________________

n.3 (1st Cir. 1995),

as support, found

departure

based

on 'aberrant

available

under

the Guidelines,

matter of law" in this case.

conduct

The court,

did

not

fall

behavior,'"

"was

not

that a "downward

though generally

available as

It concluded that Grandmaison's

within the

-77

definition

of

aberrant

behavior.

The

definition adopted

by the

showing of first-offender status, behavior

otherwise

good or

exemplary

court required

inconsistent with

character, and

spontaneity or

thoughtlessness in committing the crime of conviction.

Next, the

warrant

court concluded

downward departure

contribution

on

the

to family, friends, and

that the facts

basis of

did not

Grandmaison's

the community.

It did

not make a specific finding on the section 2C1.3 claim raised

by

Grandmaison, but did

state that "no other

advanced [by defendant or the government].

grounds . . .

. . would justify

departure

PSR's

downward."

factual

Honoring

Accordingly,

findings

the

and offense

the government's

court adopted

calculations

request for

the

in full.

leniency, the

court

selected the lowest end of the applicable guideline range and

sentenced

Grandmaison

imprisonment and two

to

an

eighteen

month

years of supervised release.

term

of

The court

also assessed Grandmaison $50.00, as required by statute.

III.
III.

REFUSALS TO DEPART FROM THE GUIDELINES

REFUSALS TO DEPART FROM THE GUIDELINES

Before

defendant

addressing

rests his

appeal,

the

three

we briefly

grounds

on

which

discuss the

rules

pertaining to refusals to depart from sentences prescribed by

the Guidelines.

Under

the Sentencing Reform Act, sentencing

courts are expected to apply

the Guidelines, adjust the base

offense level

range,

as the

and impose

facts require, calculate

a sentence

within the

a sentencing

identified range.

-88

United States v. Jackson,

________________________

see
___

18 U.S.C.

Introduction

3553(b);

4(b).

In

30 F.3d 199, 201 (1st

Guidelines Manual

Cir. 1994);

Ch. 1,

Pt. A,

general, sentencing courts

are to

regard "each guideline as carving out a 'heartland,' a set of

typical

cases

describes."

Guidelines

comment 4(b).

atypical

norm.

embodying

conduct

Manual Ch.

each

1, Pt.

guideline

A, Introduction

Departures are warranted only where a case is

or where

the facts

are significantly

outside the

Jackson, 30 F.3d at 201.

_______

Decisions

three

categories:

Forbidden departures

sex,

the

national

status.

See
___

Rivera, 994
______

to depart

generally

forbidden,

discouraged, and

are those

creed,

religion,

Jackson,
_______

30 F.3d

at

or

one

of

encouraged.

based, inter alia,

_____ ____

origin,

F.2d 942, 948-49

fall into

on race,

socioeconomic

202; United States v.

__________________

(1st Cir.

1993); U.S.S.G.

5H1.10, 5H1.12.

The Sentencing Commission ("Commission") has

expressly precluded

departure on these

grounds, even

they make a case atypical or extraordinary.

where

Rivera, 994 F.2d

______

at 948-49.

Discouraged departures involve factors which were

considered

by the Commission -- such as age, family ties and

responsibilities, employment record,

good works, or physical

condition -- but which present themselves to an extraordinary

degree in a

particular case.

United States v. DeMasi,

________________________

40

F.3d 1306, 1323-24 (1st Cir. 1994), cert. denied, -- U.S. --,
_____ ______

115 S. Ct. 947 (1995); United States v. Hilton, 946 F.2d 955,
_______________________

-99

959

(1st Cir.

involve

1991).

Encouraged departures,

considerations not previously

the Commission.

in contrast,

taken into account by

Hilton, 946 F.2d at 959.

______

Because the Commission

intended departures on

grounds to be the

exception rather than the rule,

30

at 201,

a district

or downward

-- is

F.3d

upward

court's

refusal to

ordinarily not

any

Jackson,
_______

depart --

appealable.

See
___

United States v. DeCosta,

__________________________

37 F.3d

United States v. Gaines, 7

________________________

F.3d 101, 105

Hilton, 946 F.2d at

______

appellate

957.

courts lack

5,

8 (1st

Cir. 1994);

(7th Cir.

The well-established rule

jurisdiction to

1993);

is that

review discretionary

district court decisions not to depart from sentences imposed

under the Guidelines.

See
___

United States v. Byrd, 53

______________________

F.3d

144, 145 (6th Cir.

1995); United States v. Gifford,

________________________

17 F.3d

462, 473 (1st Cir.

1994); United States v. Amparo,

_______________________

961 F.2d

288, 292 (1st Cir.), cert. denied, 506 U.S. 878 (1992).
_____ ______

There

rule.

Appellate

are,

however,

certain

exceptions

jurisdiction attaches, for

to this

example, where

the record indicates that the trial court's failure to depart

was

the product of

a mistake of

law.

Gifford,
_______

17 F.3d at

473; Amparo, 961 F.2d at 292; Hilton, 946 F.2d at 957.

______
______

If it

appears that a misapprehension of the applicable guideline or

miscalculation of the authority to deviate from the guideline

range prevented the court from departing downward,

review

is

appropriate.

Gifford,
_______

-1010

17 F.3d

at

appellate

473; United
______

States v. Pierro,
________________

32 F.3d

611, 619 (1st

Cir. 1994),

cert.
_____

denied, -- U.S. --, 115 S. Ct. 919 (1995).

______

Our review as to

judicial

authority occurred

Ovalle-M rquez,
______________

36

denied, -- U.S. --,

______

also

whether such a misapprehension of

F.3d 212,

is plenary.

221

Cir. 1994),

115 S. Ct. 1322 (1995).

cert.
_____

Plenary review

governs where the issue on appeal pertains to the scope

or interpretation of a guideline.

13

(1st

United States v.
_________________

United States v. Marcello,

_________________________

F.3d 752, 755 (3d Cir. 1994)("The question of whether the

district

court

interpretation]

adopted

is

the

a question

proper

of

law

standard

subject to

[of

plenary

review.").

IV.
IV.

DISCUSSION
DISCUSSION

The

district

authority.

crux

court

of

Grandmaison's

misunderstood

He argues

the

appeal

scope of

that the court

aberrant

characteristics.

misapprehended

behavior

its power

See
___

departure

offender

maintains that the

to depart

the

on the grounds

extraordinary

Additionally, he

section 2C1.3 of the

interest.

and

its

that

erroneously concluded

that it was precluded from departing downward

of

is

downward by

court

analogy to

Guidelines, which concerns conflicts of

U.S.S.G.

2C1.3.

We begin

by analyzing the

claim that the

facts of this case

on

of

the

basis

aberrant

permit downward departure

behavior

and

discuss the

two

remaining bases for appeal in turn.

-1111

A.
A.

Aberrant
Aberrant
Departure.
Departure

Behavior as
Behavior as

a
a

Basis
Basis

for
for

Downward
Downward

1.
1.

Jurisdiction
Jurisdiction

and
and

the
the

District
District

Court's
Court's

Refusal to Depart.
Refusal to Depart.

The

threshold issue raised by defendant's aberrant

behavior claim is whether we

have jurisdiction to review the

district court's refusal to depart downward.

at 619.

We note at

the outset, though

Pierro, 32 F.3d
______

it does not

relate

directly to questions of jurisdiction, that the basic premise

of

defendant's aberrant

Guidelines

permit

aberrant behavior.

(citing

downward

claim is

departures

See, e.g.,
___ ____

cases); Marcello,
________

Gifford, 17 F.3d at
_______

departure

13

basis

of

Catucci, 55 F.3d
_______

at 19

n.3

760 (citing

475; United States v. Morales,

________________________

1007, 1011 (9th Cir. 1992), cert.

The

the

F.3d at

on

correct.

cases);

972 F.2d

denied, -- U.S. --, 113 S.

_____

Ct.

1665 (1993).

embracing

(8th

Such departures

factors

Commission.

not

Cir. 1994);

Introduction

computed

considered

by

the

F.3d 346, 349

United States v. Fairless, 975

__________________________

acts of

probation

departures.").

the category

F.2d 664,

see Guidelines Manual Ch. 1,

___

Pt. A,

4(d)("The Commission, of course, has not dealt

the single

justify

previously

fall into

United States v. Premachandra, 32

_____________________________

668-69 (9th Cir. 1992);

with

______

at

aberrant behavior

higher

offense

that still

levels

may

through

And they may be employed whether the sentence

involves imprisonment

or

merely probation.

See
___

-1212

United States v. Duerson,

___________________________

25

F.3d

376,

380

(6th

Cir.

1994)(citing cases); Fairless, 975 F.2d at 668.

________

Consistent

entered

aberrant

at

with

sentencing,

behavior

the

the

departures

departure recommendation

government

are

acknowledges

available

under

it

that

the

Guidelines, but maintains that we lack jurisdiction to review

defendant's

depart

claim because

was an

this, arguing

the district

exercise of

refusal

authority

to

depart

Gifford, 17 F.3d
_______

on

at 473;

reviewed the totality of

from

to

Defendant disputes

his jurisdictional hurdle

shows that the

depart stemmed

to

discretion.

that he has cleared

because the record clearly

court's refusal

district court's

misapprehension of

aberrant behavior

Pierro, 32 F.3d
______

grounds.

at 611.

the record, as we are

its

See
___

Having

obligated to

do, see United States v. Morrison, 46 F.3d 127, 130 (1st Cir.
___ _________________________

1995)(citing United States v. LeBlanc, 24 F.3d 340, 348 (1st

_________________________

Cir.), cert. denied, -_____ ______

U.S. --, 115 S. Ct. 250

(1994)), we

find

that

the

truth

lies

somewhere

record

reveals

that

between

these

two

positions.

The

understood

behavior

its

general

grounds,

but

authority

adopted

to

the

the

district

depart

wrong

on

court

aberrant

standard

in

determining whether defendant's behavior was "aberrant" under

the Guidelines.

behavior

The court erroneously held that

departure

in

this

Circuit

-1313

requires

an aberrant

an

initial

finding

of

"spontaneity"

or

"thoughtless

act."

Anticipating our review, the court also made it clear that it

would

have granted

the departure

requests entered

by both

defendant and the government had it not believed itself bound

to this standard:

THE COURT:
sentence

And
you at

guidelines

so
the

range

I'm

lowest end
that

applicable in your case.

Appeals disagrees
of

if

it

appeal,
say

or

is

If the Court of

and

helps

resolving

assuming you

on the

of the

otherwise

the
the

Appeals in terms of imposing

appeal

to

with my interpretation

aberrant behavior

returned,

going

the

case

is

Court

of

sentence on
question

do appeal,

record that

if I

on

I will

thought I

could

depart on

consistent with

a principled
the law, I

basis and

would follow

the U.S. Attorney's recommendation

would

sentence you

to

one

and I

year --

12

months and one day.

Based on this

statement, we

misunderstood its authority to

think it plain

that the

court

depart downward under the law

of this Circuit.

We therefore agree

matter of jurisdiction.

of

its

court.

departure

authority confers

standard of

this initial

The district court's misapprehension

See Gifford, 17 F.3d

___ _______

The de novo
__ ____

with defendant on

jurisdiction

this

at 473; Pierro, 32 F.3d at 619.

______

review governs our

aspect of defendant's claim.

on

review of

this

See Marcello, 13 F.3d at 755.

___ ________

2.
2.

A Definition of Aberrant Behavior.

A Definition of Aberrant Behavior.

-1414

The Guidelines refer

behavior,"

insight into

but neither

what the

to "single

define that

acts of

phrase nor

Commission might

aberrant

provide any

have meant

when it

used it.

4(d);

See Guidelines Manual Ch. 1, Pt. A,

___

United States v. Williams,

_________________________

974 F.2d 25,

1992), cert. denied, 507 U.S. 934 (1993).

_____ ______

presents

an issue of first

have considered cases

aberrant

26 (5th Cir.

Defendant's claim

Circuit.

We

involving departure requests based

on

behavior, see,
___

United States v. Pozzy,

________________________

cert.
_____

Introduction

impression in this

e.g., Catucci,
____ _______

902 F.2d

55 F.3d at

133, 137-38

19 n.3;

(1st Cir.),

denied, 498 U.S. 943 (1990); United States v. Russell,

______
________________________

870 F.2d 18, 21 (1st Cir. 1989), but have not had occasion to

define that term with specificity until now.

which the district court erroneously

departure, did not require

Catucci, supra,
_______ _____

regarded as foreclosing

us to define "aberrant behavior."

In that case, we acknowledged disagreement among the circuits

as

to what type of conduct aberrant behavior entails but did

not

deem it necessary to articulate a definition for our own

Circuit because we

found that the

defendant had waived

his

departure claim.

Grandmaison's claim, in contrast, hinges on

an

of

articulation

an

aberrant behavior

standard.

We,

therefore, turn our attention to that task.

Two cases establish what have come to be recognized

as the

outer boundaries

of the aberrant

behavior spectrum.

United States v. Russell, 870 F.2d 18 (1st Cir. 1989), stands

________________________

-1515

at one

end of the

F.2d 318 (7th

criminal

Tempted by

spectrum and United States v. Carey, 895

_______________________

Cir. 1990),

conduct

which

the prospect

at the other.

was impulsive

of

Russell
_______

and

instant wealth,

involved

unpremeditated.

a Wells

Fargo

armored truck driver and his partner decided to keep an extra

bag of money mistakenly handed them.

prior criminal record, returned

The driver, who had no

the money almost immediately

after committing

police

his crime and cooperated

investigation.

premeditated criminal

of

time.

There, a

check-kiting scheme

day during

In

contrast,

in the subsequent

Carey
_____

involved

scheme carried out over

a long period

trucking company president

engaged in a

over a fifteen-month period.

this period

the company president

Each work

concealed his

two over-drawn bank accounts by having his bookkeeper prepare

checks to cover the fund shortage.

frequently deposited them himself.

that this behavior was

He signed each

check and

The Seventh Circuit held

not "aberrant."

895 F.2d

at 324-25.

Uncertainty about the reason for the district court's refusal

to depart precluded

Russell.
_______

this court from

deciding that issue

in

Circuit

conduct

must

courts

fall

on

are

the aberrant

justify downward

departure.

have

expansive

means

adopted an

in

the

context

divided over

As we

view of

of the

-1616

where

behavior

noted in

spectrum

to

Catucci, some
_______

what aberrant

Guidelines,

criminal

whereas

behavior

others

require

spontaneous

or

thoughtless

committed by the defendant in Russell.

_______

act

of

the

sort

The Seventh Circuit's

decision in Carey provided the

_____

moorings for the latter group

of circuits.

held that "[a] single

The Carey court

_____

aberrant behavior . . .

and

generally contemplates a spontaneous

seemingly thoughtless act rather than

result of

substantial planning

suddenly and

is

not the

process is one for

accountable."

reinforced

Andruska, 964
________

one which was the

because an act

result of

325.

The

tight interpretation

F.2d 640, 645-46

which occurs

a continued

which the defendant may be

895 F.2d at

this

act of

reflective

arguably less

Seventh Circuit later

in

United States v.
_________________

(7th Cir. 1992),

a decision

reversing a district court's decision to depart downward in a

case

involving

woman

found

guilty

of

concealing

her

fugitive paramour from arrest.

The Third, Fourth, Fifth, and Eighth

embraced

the Seventh

Circuit's

For example, in Marcello,

________

that "there must be

behavior"

depart downward.

aberrant behavior.

supra, the Third Circuit explained

_____

some element of abnormal

before adopting the

requirement and

view of

Circuits have

reversing the

or exceptional

Seventh Circuit's spontaneity

district court's

13 F.3d at 761.

decision to

The Marcello defendant was

________

an attorney who, on seven separate occasions, structured bank

deposits to avoid tax

reporting requirements in violation of

-1717

31 U.S.C.

5322(a),

5324(3).

He committed

these offenses

over the span of seven consecutive working days.

Cases

criminal acts

involving

received

extensive

similar

Fifth, and Eighth Circuits.

planning

treatment

in

In United States v.

or

repeated

the

Fourth,

Glick, 946

_______________________

F.2d

335, 338 (4th Cir. 1991), the Fourth Circuit reversed a

downward departure

decision after noting that

transported

letters containing

state lines

on several occasions.

Fifth Circuit

downward

stolen trade

the

involved planning.

robbery

Similarly,

secrets across

In Williams,
________

affirmed a district court's

because

the defendant

executed

supra, the
_____

refusal to depart

by

the

defendant

the Eighth Circuit found that

a bank fraud scheme carried out over a one year period lacked

the

level of

spontaneity

cases such as Carey.

_____

161, 164 (8th Cir.

349.

and

thoughtlessness required

by

See United States v. Garlich,

___ ________________________

951 F.2d

1991); see also Premachandra, 32

___ ____ ____________

F.3d at

In

contrast,

the Ninth

and

Tenth Circuits

have

eschewed any focus on spontaneity and thoughtlessness, opting

instead

for a broad view of aberrant behavior.

reviewing courts to employ

test in making aberrant

test, courts

as

They require

the totality of the circumstances

behavior determinations.

consider a variety of

Under this

mitigating factors, such

pecuniary gain to the defendant, prior good deeds, and an

effort to

mitigate the

effects of

-1818

the crime in

evaluating

whether

defendant's

conduct

specifically, "aberrant."

was

unusual

or,

more

See, e.g., United States v. Takai,

___ ____ ______________________

941 F.2d 738, 741 (9th Cir. 1991).

In Takai, the
_____

court's decision

defendants who

bribe

an

inter
_____

alia,
____

Ninth Circuit affirmed

to depart

downward after finding

pled guilty to

Immigration and

received no

bribery of and

Naturalization

pecuniary

record, and had

been influenced

convergence

factors,

of

the district

such

conspiracy to

Service official,

gain,

had no

by a government

as

the

that the

criminal

agent.

defendant's

manic

depression,

also led

suicidal

tendencies,

the Ninth Circuit

and recent

to affirm downward

Fairless, supra, an armed robbery case.

________ _____

States v. Pena, 930 F.2d 1486,

______________

possession

case,

departure

was

an

the

Tenth

was appropriate

aberration

highlighted

by

from

long-term

distribution of controlled

unemployment,

departure in

Similarly, in United
______

1494 (10th Cir. 1991), a drug

Circuit

held

that

downward

because the

defendant's behavior

her

conduct,

usual

employment,

no

which

abuse

or

substances, and economic

was

prior

support

of her family.

We are persuaded, after reviewing the cases decided

by our colleagues in other circuits, that the approach

by the Ninth and Tenth

taken

Circuits achieves the balance between

uniformity in

Guidelines

sentencing and district

were intended to strike.

court discretion

the

See Jackson, 30 F.3d at

___ _______

-1919

201-02.

We, thus, hold that

determinations about whether an

offense constitutes a single

act of aberrant behavior should

be

made

by reviewing

the

District court judges may

as pecuniary

prior

terms

circumstances.

consider, inter alia, factors such

_____ ____

the defendant, charitable

deciding whether a defendant's

of other

crimes.

See
___

activities,

cases

involving

the

conduct is aberrant

DeMasi, 40
______

(departure determination should be

other

of the

good deeds, and efforts to mitigate the effects of the

crime in

in

gain to

totality

F.3d

at 1324

made by comparing case to

stated

reason

for departure).

Spontaneity and thoughtlessness may also be among the factors

considered, though they are not prerequisites for departure.

That

first

aberrant behavior departures are available to

offenders whose

more than

course of

criminal conduct

one criminal act is implicit

involves

in our holding.

See
___

Takai, 941 F.2d at 743.

_____

We think the Commission intended the

word "single" to refer to the crime

various

acts involved.

reference to

As a result, we read the Guidelines'

"single acts

multiple acts leading up to

id.
___

Any other

reading

District courts would

acts

involved in

whether

the

departure is

effect of such

committed and not to the

of aberrant behavior"

to include

the commission of a crime.

would

produce an

be reduced to

crime to

Moreover,

an interpretation would

-2020

result.

counting the number

commission of

warranted.

absurd

the

be to make

See
___

of

determine

practical

aberrant

behavior

because

acts.

are

departures virtually unavailable to most defendants

almost every

Even the

widely

regarded

act of

involves a

series of

criminal

Russell defendant, whose spontaneous actions

_______

behavior, could be

single

crime

as

classic

example

understood to have committed

aberrant

partner to take money

behavior.

He

of

aberrant

more than a

conspired with

from the armored truck he

his

drove; took

the money;

time.

and then

Thus,

we

kept the

think

money for

that

focusing

a short period

of

on

of

the

crime

conviction instead of the criminal acts committed in carrying

out that crimebest comports with what theCommission intended.

The approach

we now

adopt does not

unnecessarily

expand opportunities for departure under the Guidelines.

The

totality of the circumstances test, though admittedly broader

than the

spontaneity test

employed in Carey,
_____

with the Commission's intention

aberrant behavior principle.

Concerns

that it

departure

foundation.

ensures

is consistent

to limit applications of the

See Andruska, 964

___ ________

every first

F.2d at 645.

offender a

downward

from their Guidelines-imposed sentence are without

As the Ninth Circuit explained in United States

_____________

v. Dickey, 924
_________

F.2d 836 (9th Cir.

1991), "aberrant behavior

and first offense are not synonymous."

Glick, 946 F.2d at 338.

_____

924 F.2d at 838; see

___

Without more, first-offender status

is not enough to warrant downward departure.

-2121

District

considering

departure

courts are

first-offender

calculus.

defendant's criminal

duplicate

the

First, as we just

individuals

in

as

Departure-phase

record

does

not,

involved

Criminal

that category

entitled to departure because

unrelated offenses

factor

in

the

of

we

think,

in

establishing

for

the Guidelines.

History Category

who,

wrongly

obviously not the case

an aberrant behavior departure.

in

precluded from

consideration

history category under

noted, it is

defendant

qualified for

status

calculations

defendant's criminal

every

not, however,

will

that

be

There will be

instance, are

not

they were convicted of several

or who have been

regular participants in

elaborate

1011.

criminal enterprises.

Second,

to the extent that

criminal record

stages amounts

permit

See
___

at both

to

Morales, 972
_______

considering a defendant's

the criminal history

double counting,

But
___

see
___

Marcello, 13
________

F.3d at

(concluding

that

the

Guidelines

prohibit

departure stages).

may

depart .

taken

in

. .

The

and departure

the Guidelines

it.

defendant's criminal record at

F.2d at

755

clearly

(3d Cir.)

considering

both the criminal history and

Guidelines explain that

even though the

reason for

"the court

departure is

into consideration . . . if the court determines that,

light

of

unusual

circumstances,

attached to that factor is inadequate."

the

guideline

U.S.S.G.

level

5K2.0.

-2222

The

question

now

becomes

whether

defendant's

conduct falls within the ambit of aberrant behavior under the

standard

we have articulated.

court's discretion.

which to

We leave this to the district

It occupies the best vantage point

make the decision.

Rivera, 994 F.2d at

______

950.

from

We,

therefore,

vacate

defendant's

sentence

and

remand

for

resentencing.

B.
B.

Extraordinary
Extraordinary

Offender
Offender

Characteristics as
Characteristics as

a
a

Basis for Downward Departure.

Basis for Downward Departure.

Defendant's second

district court

ground of

obligations

departure.

misunderstood its authority to

his extraordinary characteristics.

extraordinary

certain

argument on appeal is

characteristics

or

exceptional

circumstances,

See, e.g.,
___ ____

such

as

depart on the

We agree that

unusual

charitable activities

provide

basis

that the

for

family

may,

in

downward

United States v. Haverstat, 22 F.3d

___________________________

790, 795-96 (8th Cir. 1994), cert. denied, -- U.S. --, 116 S.
_____ ______

Ct. 671 (1995); United States v. Canoy, 38 F.3d

_______________________

893, 905-07

(7th Cir. 1994); Rivera, 994 F.2d at 948-53; United States v.

______
________________

Sclamo,
______

997 F.2d 970, 973-74 (1st Cir. 1993); Pena, 930 F.2d
____

at 1495; United States v. Big Crow, 898 F.2d 1326,

_________________________

Cir.

1990).

We

disagree, however, that

misunderstood its authority to depart.

the

court

charitable

found

that defendant's

activities,

though

extraordinary nor exceptional.

-2323

1332 (8th

the district court

It appears clear that

family

noteworthy,

obligations

were

and

neither

The

best

unwillingness

to

indicator

depart

of

the

downward

district

on

the

court's

basis

of

extraordinary characteristics is the stark difference between

the

court's sentencing-hearing statements about departure on

this basis and

asked

to

on the

make

grounds of aberrant

a finding

about

behavior.

defendant's

When

extraordinary

offender characteristics claim, the district court stated:

THE COURT:
to

To the extent you've asked me

depart based

that
family

on that,

those, extraordinary
and

would find

commitment to

extraordinary

characteristics, don't rise to

offender
the level

that would justify a departure out of the

heartland of the guidelines .
the

extent I

regard, I

have

. .

discretion

in

exercise my discretion

So to
that
not to

depart downward.

These

statements make

refusal

See
___

to depart

DeCosta, 37
_______

district

court

it

plain that

stemmed from

F.3d at

say

mitigating factors urged but

unusual

even

an exercise

8 ("[we

that

we

were

to

the district

Morrison, 46 F.3d
________

has

assume

considered

that

case at hand.").

these

the

statements

And

are

more, would not be enough

court's refusal to

at 132;

.[t]hat the

does not find them sufficiently

ambiguous, that ambiguity, without

to make

it

court's

of discretion.

suggest] . .

to warrant a departure in the

if

the district

depart appealable.

see United States v. Romero,

___ ________________________

32

F.3d 641, 654 (1st Cir. 1994).

thus, at an end.

Our review of this matter is,

We lack jurisdiction to review the district

-2424

court's

refusal

to

extraordinary offender

depart

downward

characteristics.

on

the

Byrd,
____

basis

of

53 F.3d

at

145; Gifford, 17 F.3d at 473.

_______

C.
C.

The Heartland of Section 2C1.7 of the

The Heartland of Section 2C1.7 of the
Guidelines.
Guidelines.

Defendant's final argument

scope of

section 2C1.7 of the

to 18 U.S.C.

he pled

guilty.

applicability to

district

court

1341,

on appeal concerns

Guidelines, which corresponds

1346, the mail fraud statute

Without disputing section

his conduct,

misapprehended

the

2C1.7's general

defendant maintains

its authority

to which

to

that the

impose

shorter prison term by departing downward, by analogy, to the

sentence

prescribed under section

2C1.3 of

the Guidelines.

For individuals in Criminal History Category I, section 2C1.3

-- which concerns conflicts of interest by present and former

federal officers and employees

of

zero to six months.

range of

eighteen to

the same

category.

-- carries a sentencing range

Section 2C1.7

imposes a sentencing

twenty-four months for

See U.S.S.G.
___

2C1.7

individuals in

(Fraud Involving

Deprivation of the Intangible Right to the Honest Services of

Public Officials); U.S.S.G.

Though

cast as

2C1.3 (Conflict of Interest).

a claim

relating to

the district

court's refusal to depart, defendant's argument, at its core,

primarily

Guidelines.

concerns the

heartland

Defendant essentially

falls outside the

of section

argues that

heartland of section 2C1.7

-2525

2C1.7 of

the

his conduct

and within the

scope

of

conflict

concerning

section

of

the

2C1.3

because it

interest,

not

scope and

primarily

fraud.

meaning

of

involved

Because

questions

a guideline,

unlike

questions pertaining to the facts which lead a district court

to render

its departure decision, are quintessentially legal

in nature, see LeBlanc,

___ _______

952,

24 F.3d at 345, Rivera, 994

______

we have jurisdiction to

review is

plenary,

as it

is

F.2d at

review defendant's claim.

whenever a

district

Our

court's

decision "reflect[s] a determination of the purpose of, or an

interpretation of

LeBlanc, 24 F.3d
_______

the language in, a

at 344;

guideline or statute."

see United States v. Rosales,

___ _________________________

19

F.3d 763, 769 (1st Cir. 1994).

To determine whether defendant's

sort

which

generally

"heartland," we

falls

within

must determine the nature

crime of mail fraud.

conduct is of the

section

2C1.7's

of the underlying

See, e.g., LeBlanc, 24 F.3d at 346.

___ ____ _______

We

look in part to the language of the mail fraud statute and to

the

legislative

history

which accompanies

it.

Id.
___

relevant part, section 1341 provides:

Whoever, having devised

or intending

to

devise any scheme or artifice to defraud,

In

or

for obtaining

means of false

artifice

or attempting

be

fined

imprisoned
both.

or promises

of executing such

the mail system or

shall

or property

or fraudulent

representations,
the purpose

money

If

so to

pretenses,
. .

. for

scheme or
do, [uses

causes it to be used]
under

this

not more than

the

by

-2626

or

five years, or

violation

financial institution,

title

affects

such person shall

be

fined not

imprisoned

more

than

not more

$1,000,000

or

30 years,

or

than

both.

Congress

general

proscription

correspondence in

defraud.'"

(1987).

intended

enacted

this

statute

against using

the

in

1872,

mails to

furtherance of 'any scheme

initiate

McNally v. United States, 483 U.S. 350, 355, 359

________________________

The

the

legislative history

mail

fraud

Before 1987,

suggests

statute to

that

protect

section 1341 was read as

protecting individuals

intangible, as

the

"a

or artifice to

Supreme

against schemes

well as tangible,

Court held

that

to

property.

the statute

Congress

people

"schemes to deprive them of their money or property."

356.

as

from

Id. at
___

a broad shield,

deprive them

Then,

did

of

in 1987,

not embrace

intangible rights.

McNally held
_______

does

schemes to

not prohibit

intangible rights to

U.S.

that the mail fraud statute

defraud individuals

of their

the honest services of government.

483

at 359-60; see Carpenter v. United States, 489 U.S. 19,

___ __________________________

25 (1987).

In 1988,

services amendment,

in

McNally.
_______

Court's decision

F.2d 937, 942

United States v. Alkins, 925

_______________________

F.2d 541,

Cir. 1991); McEvoy Travel Bureau, Inc. v. Heritage

________________________________________

Travel, Inc., 904

_____________

Cong.

to reverse the Supreme

United States v. Bucuvalas, 970

___________________________

n.9 (1st Cir. 1992);

548 (2d

Congress enacted section 1346, the honest

F.2d 786,

790 (1st

Cir. 1990);

see 134
___

Rec. S17360-02 (daily ed. November 10, 1988)(Judiciary

-2727

Committee analysis)("This section

McNally v. United States

________________________

overturns the decision

. . . Under [this]

in

amendment, [the

mail and wire fraud] statutes will protect . . . the right of

the

public to

Section

1346

the honest

became

services of

effective

public officials.").

on November

18,

1988

and

provides:

For

the purposes

term

"scheme

includes

or

of

this chapter,

artifice

to

the

defraud"

a scheme or artifice to deprive

another of the intangible right of honest

services.

See Anti-Drug Abuse Act

___

VII,

7603 (a), 102

of 1988, Pub. L. No.

Stat. 4508 (1988).

100-690, Title

It

restores mail

fraud convictions to their pre-McNally status by allowing the

_______

government

deprivations

to

of

predicate

mail

the intangible

United States v. Bryan,

_______________________

1995); Waymer, 55 F.3d

______

58 F.3d

fraud

right

of

933, 940

prosecutions

on

honest services.

n.

at 568 n.3; see 135 Cong.

___

1 (4th

Cir.

Rec. S1063

(daily ed.

February 2, 1989)(statement

offense under

of Sen. Biden).

section 1346 is established

An

when the evidence

demonstrates that the use of the mail system played a role in

executing

government.

the

deprivation

of

the

honest

Schmuck v. United States, 489

__________________________

services

U.S. 705,

of

710

(1989)(citing Kann v. United States, 323 U.S. 88, 95 (1944));

_____________________

see United States v. Yefsky, 994 F.2d 885, 890, 892 (1st Cir.
___ _______________________

-2828

1993); United States v. Dray, 901 F.2d 1132, 1137

______________________

(1st Cir.

1990), cert. denied, 498 U.S. 895 (1990).

_____ ______

Section

system

plays an

citizenry of

1346

includes

integral

role

the honest services

cases

in

in

which

the scheme

the mail

to

defraud

of government, as

well as

schemes in which use of the mail system is only incidental to

the larger plan.

Id. at 710-11; see United States v. Morrow,

___
___ _______________________

39 F.3d 1228, 1236-37

(1st Cir. 1994), cert. denied,

_____ ______

115 S.

Ct. 1421 (1995) (mail fraud generally includes incidental use

of

the mails

Eleventh

in furtherance

of a

Circuit recently affirmed

scheme to

defraud). The

a defendant's conviction

on twenty-two counts of mail

fraud even though the defendant

only

to

used the

partner

the

mail

system

receive payments

in a money laundering the scheme.

court rejected

overbroad

claims

that section

and reiterated the

Schmuck, supra, that "[i]t is

_______ _____

in the

55 F.3d

States,
______

defendant

240

U.S.

was an

391,

elected

1346 is

vague and

conclusion in

sufficient for the mailing

an essential part of the

at 569; see also

___ ____

393-94

(1916).

member of

the

his

In Waymer, supra,
______ _____

Supreme Court's

be 'incident to

plot.'"

from

to

scheme' or 'a step

Badders v. United
_________________

In

Waymer,
______

Atlanta Board

the

of

Education who failed to

the

contractor

Atlanta's public

who

fully disclose his relationship with

provided

schools.

board members, the defendant

pest

control

Unbeknownst to the

services

to

other school

received fifteen percent of all

-2929

the proceeds from the

contractor's contracts with the school

system.

Courts have read section 1346 to include efforts by

public

acts

officials and

from

pretenses,

conduct."

the

employees to conceal

public

"by means

representations,

of

promises,

their fraudulent

false

or

fraudulent

or

other

deceptive

See McEvoy Travel, 904 F.2d at 791.

___ _____________

For

example,

the Fourth Circuit recently upheld the conviction of a public

official on such grounds

933 (4th Cir. 1995).

Virginia

in United States v. Bryan,

______________________

In that case, the Director

Lottery orchestrated

a scheme whereby

58 F.3d

of the West

he secretly

ensured that lottery contracts and contract bids were awarded

to companies with whom

Fourth

Circuit

held

he had a personal relationship.

that

section

1346

applied

to

The

the

defendant's

conduct.

58 F.3d at

States v. Alkins, 925

__________________

Circuit case,

officials.

secretly

driver's

F.2d 541

(2d

upheld the section

six Department

failed to

939-41.

of

Motor

Similarly, United
______

Cir. 1991),

a Second

1346-based convictions

Vehicles

employees

because

of

they

disclose their fraudulent activities to department

925 F.2d

processed

licenses,

at 549.

improperly

The defendants

in that case

documented applications

identification

cards,

and

for

vehicle

registrations in return for monetary disbursements.

We hold that the

conduct to which Grandmaison pled

guilty falls within the range of conduct Congress intended 18

-3030

U.S.C.

1341, 1346 to encompass

squarely within the heartland

continued

to

lobby

Board

of section 2C1.7.

members

Construction after his recusal

secretly

delivered

bid.

He

on

behalf

Grandmaison

of

Eckman

from the SSCC and JSSBC.

gratuities

Kuchinski to secure favorable

and, concomitantly, rests

to

Magee,

Ackerman,

He

and

votes on Eckman Construction's

distributed informational

materials about

Eckman

Construction

to

Magee and

Ackerman without

disclosing his

actions to other Board members.

And he caused the Elm Street

Project contract to

Eckman Construction via

mail

system.

Though

be sent to

there is no

received direct monetary benefit

be little doubt that

Alkins
______

he deprived

evidence that Grandmaison

from his actions, there can

under cases such as Waymer,

______

the

the

citizens of

Nashua

Bryan, and
_____

of the

services of their government under section 1346.

honest

This is not

an unusual case.

Defendant maintains that he is mainly guilty of not

revealing

involved

follow

a conflict of interest.

some

element of

from this, however,

such a

To be

sure, his conduct

violation.

that he should

It

does not

not be sentenced

pursuant to section 2C1.7, the guideline corresponding to the

mail fraud

-3131

statute to which

he pled

that 18 U.S.C.

section 1346 were

2C1.3

to

are not at

the sentence

convinced

the sort

appropriate.

This

his

that

that

by section

is principally

linguistically does not apply

guideline

all certain

prescribed

section 2C1.3

conduct;

we are

Second, even if the applicability of

suspect, we

departure

would be

First,

1341, 1346 encompasses crimes of

committed by defendant.

downward

guilty.

because

to defendant or

only addresses

conflicts

of

interests by present or former federal officers and employees

and, therefore, does not reach state

as defendant.

or local officials such

In the final analysis, defendant

to persuade us of only one

has managed

thing: that had he been a federal

employee or official, the government might have been able

to

charge

him

U.S.S.G.

to

with violating

2C1.3

seeks,

Because

well.

See
___

this argument clearly does not

application of a lower

we

as

(listing statutory provisions corresponding

that guideline).

merit the

other statutes

affirm the

district

sentencing range defendant

court's

refusal to

depart

downward by analogy to section 2C1.3.

V.
V.

CONCLUSION
CONCLUSION

For the foregoing

sentence

and

behavior

standard formulated in

appeal

for

extraordinary

remand

downward

for

reasons, we vacate Grandmaison's

resentencing under

departure

the

this opinion.

on

the

aberrant

Defendant's

basis

of

his

offender characteristics is dismissed for lack

-3232

of jurisdiction.

to depart

And we affirm

downward

Guidelines.

It is so ordered.
It is so ordered.
________________

by

analogy

the district court's refusal

to

section

2C1.3

of

the

-3333