USCA1 Opinion

UNITED STATES COURT OF APPEALS

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

_________________________

No. 97-1448

UNITED STATES OF AMERICA,

Appellee,

v.

CHARLES E. BREWSTER,

Defendant, Appellant.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

___________________

_________________________

Before

Selya, Boudin and Stahl,

Circuit Judges.
______________

_________________________

Henry W. Griffin,
__________________

by

appointment

of

the

court,

for

appellant.
Margaret D. McGaughey,
______________________

Assistant

United States

Attorney,

with whom Jay P. McCloskey, United States Attorney, and Donald E.

________________
_________
Clark,
_____

Assistant

United

States Attorney,

were

on

brief, for

appellee.

_________________________

October 2, 1997
________________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
_____________

In

this

sentencing

appeal,

defendant-appellant

departure that the

Charles

E.

Brewster

district court premised

prior, uncharged criminal conduct

vicious

protests

domestic

violence

conviction (being a

an

upward

in large measure

a history of persistent

dissimilar

to

felon in possession of a

the

offenses

on

and

of

firearm and making

false statements in connection with the procurement of firearms).

We affirm the sentence.

I.
I.

HOW THE CHARGES AROSE

HOW THE CHARGES AROSE

We

distill the

facts

from

undisputed portions of the presentence

Report),

and the

United States v.
_____________

transcript of

the

plea

colloquy,

the

investigation report (PSI

the disposition

Talladino, 38 F.3d 1255, 1258

_________

hearing.

See
___

(1st Cir. 1994);

United States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).

_____________

_____

In August 1996,

police officers responded to

a report

of domestic violence at the abode shared by the appellant and his

wife

in Livermore

Brewster's

Falls,

Maine.

injuries, tried to

The

officers observed

calm the couple's

Mrs.

three children

(ages 10, 11 and 16), took statements from both Mrs. Brewster and

her

sister-in-law,

transported to the

ardor for hunting

and

arrested the

appellant.

While being

county jail, Brewster spoke volubly about his

and described the firearms (a

16-gauge shotgun) that

he owned and kept

30-30 rifle and

in his house.

When a

routine criminal record check disclosed a prior felony conviction

for armed

Mrs.

robbery, the

Brewster's

police repaired to

consent,

seized

the

two

the house

and, with

weapons.

Further

investigation revealed that the appellant had purchased two other

rifles

without disclosing

Meanwhile,

abuse"

his

status

as

convicted

felon.

Mrs. Brewster obtained a state court "protection from

order, and state

authorities released Brewster

conditioned upon his refraining

on bail,

from all contact with his

wife.

The appellant promptly violated this restriction.

In September

1996, a

federal grand

jury returned

an

indictment charging the appellant with

one count of making false

statements

form in

on

a firearm

application

U.S.C.

922(a)(6), 924(a)(2) (1994),

felon in

possession of a

922(g)(1),

violation

and two counts of being a

firearm in violation

924(a)(2) (1994).

In

due

of 18

of 18

course,

the

U.S.C.

appellant

pleaded guilty to all three counts.

II.
II.

HOW THE SENTENCE DERIVED

HOW THE SENTENCE DERIVED

The district

at

the

statement

judge pondered several pieces of evidence

disposition hearing.

appended to

the PSI

Among

these

Report, in

was a

which the

handwritten

appellant

admitted to purchasing guns knowing that he was legally forbidden

from doing so.

In

a second handwritten statement, also appended

to the PSI Report, Mrs.

Brewster chronicled 17 years of horrific

domestic abuse.

any

contact with

She explained that sheer terror had forestalled

the authorities

feared not only for her life,

her children

before August

of 1996:

but also for what might happen

if she were slaughtered.

Her fear of

she

to

bodily harm

stemmed

from her husband's

repeated minations during

years and

years of

physical abuse.

She described incidents in

which the

appellant threw

her on the floor and stomped on her cranium with

heavy work boots, banged her head against a counter, threw knives

at her, and at various times smothered, kicked, punched, bit, and

strangled her.

In addition,

she had been threatened "with every

kind of brutal death possible."1

The appellant made little effort to conceal his abusive

behavior.

In recorded interviews with the state police, several

neighbors and

friends

violence and vulgar

described

incidents

language, and reported

involving

physical

that they had

heard

the appellant threaten to kill his wife on several occasions.

After making an upward adjustment for multiple weapons,

USSG

2K2.1(b)(1)(A), and a downward adjustment for acceptance of

responsibility, USSG

level (OL)

of 18.

3E1.1, Judge Carter settled upon an offense

He then

assessed criminal history points for

an

armed

robbery

conviction

conviction

but overlooked

seven

their age or the unavailability

score placed

and

Brewster in

breaking

other

and

entering

convictions because

of records.

of

The resultant point

criminal history

category (CHC)

III.

____________________

1A

brief

excerpt illustrates

the

tone and

tenor

statement:

[My husband] has tried to drowned [sic] me in

the pool

and in

the bath

tub.

On several

occasions I thought I was going to die before

he let me
slice my
knifes
them
He

up. . . .

He's told me

throat while I
[sic] against

slept.

my throat

He

he would
has put

and pressed

into my neck, laughing while he did it.

has sawed my kitchen set

saw because I

cooked the

supper and tried

my hands off.'

up with a power

`wrong thing'

to pull me outside
I

for

to `cut

hid in the woods for hours

that night, but had to go back for my son.

of the

This matrix (OL 18; CHC III) yielded a guideline sentencing range

(GSR) of 33 to 41 months.

The government urged

ground

that Brewster's CHC

past criminality and the

appellant

4A1.3

objected.

the court to depart upward on the

underrepresented the gravity

corresponding risk of recidivism.

The ensuing

debate

centered around

of his

The

USSG

(1995), pertinent portions of which are reproduced in the

Appendix.

Judge

4A1.3's language

Carter expressed concern about

and structure

permitted a

spousal abuse, especially since that

abuse

whether section

departure based

which he considered

relevant but not similar to the offense of conviction

been

adjudicated as

criminal conduct.

In

on

the

had never

last analysis,

however, the judge opined that the case qualified for a departure

because

of the 17-year

and the existence of

history of unrelieved

domestic violence

seven prior convictions for

serious crimes

that had not been counted in arriving at the CHC.

The judge then

mentioned

a third factor, declaring that the appellant's refusal

effectively to pursue

an alcohol abuse

domestic abuse counseling

program or to

"[a]dd[ed] to all of this

the unusual character of this case."

undertake

in terms of

Turning to the

that

the upward departure

increase from

CHC

III to

matter of degree, the

court determined

should be fashioned

by simulating an

CHC V.

stressed that

The

court

sentence at the

upper limit of the simulated

would produce a

prison term of approximately five

GSR (51-63 months)

years, which,

when followed by the maximum available term of supervised release

(three years), would keep the

appellant away from his wife until

their youngest child had reached age 18.

reasoned, Mrs. Brewster

abusive situation

added

that a

by her

sentence

would no longer be "held

concern for her

of that

to

the offense

hostage" in an

children.

magnitude

recognizing the serious nature of this

related conduct

At that time, the court

The court

was "appropriate

in

prior criminal conduct as

conduct

of possession

of

the

firearm."

When

all was

appellant to serve

by a

among

communication

court).

the court

an incarcerative term of

three-year term of

which,

said and done,

other

supervised release

things,

with his wife

This appeal followed.

proscribed

sentenced the

63 months, followed

(the conditions

any

contact

absent written permission

of

or

from the

III.
III.

THE STANDARD OF REVIEW

THE STANDARD OF REVIEW

We review departures for abuse of discretion.

v. United States,
______________

116 S.

Ct.

2035, 2046-47

process, we must determine three things:

ground for

departure

is conceptually

(1996).

See Koon
___ ____

In

the

whether the articulated

appropriate, whether

the

record provides sufficient factual support for a finding that the

ground exists, and whether the degree of departure is reasonable.

See United States v. Dethlefs, ___ F.3d ___, ___

___ _____________
________

(1st Cir. 1997)

[No. 96-2071, slip op. at 10].

For organizational purposes, we

inquiry

in

this

sufficiency of the

case

by

examining

compress the departure

the

legal

departure grounds in tandem.

and

factual

Only then do we

inquire into the degree of departure.

IV.
IV.

THE GROUNDS FOR DEPARTURE

THE GROUNDS FOR DEPARTURE

The court below departed because it determined that the

appellant's CHC significantly underrepresented his proclivity

commit future crimes and the

to

seriousness of his criminal past in

two

ways:

gravity

first,

and

CHC

duration

III failed

of his

adequately

vicious,

behavior; and second,

CHC III failed

cumulative

seven prior

impact of

criminal history points.

then

discuss the

We

the

assaultive interspousal

adequately to reflect

convictions

the

that yielded

no

discuss these factors seriatim.

________

We

court's allusion

effectively to pursue

to reflect

to

the appellant's

a treatment program for

failure

domestic violence

or alcohol abuse.

A.
A.

The

4A1.3,

guideline that

permits a

that the CHC

the

Domestic Abuse as a Ground for Departure.

Domestic Abuse as a Ground for Departure.
________________________________________

the district

departure if

court invoked,

reliable information

indicates

"significantly under-represents the seriousness

defendant's

criminal

history or

the

likelihood

USSG

of

that the

defendant

will commit

relates that such

to" the
__

further crimes."

information "may include,

type illustrated in

(emphasis supplied).

adjudicated

The guideline's

a series

text

but is not limited

___________________

of five

vignettes.

Id.
___

The first four examples address charged or

criminal conduct,

and the

fifth addresses

conduct

which, although unadjudicated (and perhaps uncharged), is similar

to the offense of conviction.

In

contrast

predicated the

to

these

instant departure

examples,

the

principally on

court

below

Brewster's 17-

year history of unadjudicated, uncharged domestic abuse, which it

termed "the

most appalling

Carter recognized

that none

section 4A1.3 applied

never been charged

this

language and

"amply

crimes.

of the

man's record."

to this misconduct,

bore

Judge

illustrations contained

as the appellant

with, or convicted of, abusive

prior misconduct

conviction.

part of this

no similarity

to

in

had

behavior, and

the offenses

of

But the judge looked to the guideline's introductory

concluded that Brewster's pervasive

demonstrated" the likelihood

Brewster

attacks this

that he will

finding

on three

domestic abuse

commit future

fronts.

He

maintains that

the domestic abuse,

legally permissible

that it is

events,

ground for

in and

departure

not a relevant consideration

the evidence

of itself, is

of domestic

sentencing court possessed too

not a

under section

4A1.3;

here; and that,

in all

violence

relied upon

by the

few hallmarks of trustworthiness.

None of these arguments is convincing.2

1.
1.

____________________

2Given the

sentencing

inclined to believe
argument

court's

factual

that there is force

that the prolonged

findings,

we

are

behind the government's

domestic violence which

marred the

Brewsters' marriage would have allowed the court to depart upward

under

USSG

aggravating

5K2.0

(permitting departure

circumstance

of

kind,

adequately taken into consideration

if the court
or

to

Keester, 70

degree,

not

by the sentencing guidelines

that renders the case meaningfully atypical).

States v.

finds an

F.3d 1026, 1027-28

See,
___

(8th Cir.

e.g., United
____ ______

1995) (per

______

_______

curiam) (upholding

such a

departure).

Because we sustain

the

upward departure under section 4A1.3, see text infra, we need not
___
_____
resolve this question definitively.

Emphasizing

invitation

resulting

supplied),

the

Sentencing

Commission's

express

to consider "prior similar adult criminal conduct not

_______

in a

criminal conviction,"

the appellant posits

USSG

4A1.3(e)

that the guideline

(emphasis

by negative

implication forbids the use of dissimilar, uncharged conduct as a

basis for departure.

In our

We do not agree.

judgment, the

criminal conduct that

determination

is both uncharged and

of whether

prior

dissimilar can ever

form a basis for a criminal history departure is neither dictated

nor informed

that

by the

section

language of section

states

explicitly

that

4A1.3(e).

the

illustrations is not intended to be exhaustive.

infer

that the

similar

misconduct

consideration

would

the

guideline's

as

list

for

departure

of

five

What is more, to

explicit authorization

basis

After all,

to consider

precludes

any

of dissimilar misconduct for that purpose not only

frustrate the "included,

but not limited

Sentencing Commission deliberately

to" caveat that

inserted in the

text of

section

4A1.3, but

also

would

run

principle of departure jurisprudence:

explicit

proscription,

courts

counter to

fundamental

that, in the absence of an

generally

should

not

reject

categorically any factor as a potential departure predicate.

Koon, 116 S. Ct. at 2051; Dethlefs,

____
________

16]; see
___

also USSG Ch.1,

____

See
___

___ F.3d at ___ [slip op. at

Pt. A., intro. comment.

4(b) (stating

that the Sentencing Commission did not intend "to limit the kinds

of factors,

whether

guidelines, that

or

not

mentioned

could constitute

anywhere

grounds for

else

in

departure in

the

an

unusual case").

Finally, construing section 4A1.3

to mean what

it says comports with the Commission's emphasis on a case-by-case

approach to section

4A1.3 departures, see USSG

___

(backg'd.) ("This policy

4A1.3, comment.

statement recognizes that the

criminal

history score is unlikely to take into account all the variations

in the seriousness of criminal history that may occur.").

For

these reasons, we

rebuffed a kindred

United States v.
_____________

Doe, 18 F.3d 41 (1st Cir. 1994).

___

there, convicted

of being

focused on statements in the

a felon in

argument in

The defendant

possession of

commentary to USSG

a firearm,

4A1.2 that open

the door

for sentencing courts

similar to the

See
___

id.
___

to use outdated

offense of conviction

at 45-46.

Drawing

language, Doe argued that the

outdated,

dissimilar
__________

departure.

See id.
___ ___

as a departure

negative inference

We rejected

crimes

as

46.

for

Commission's express intention not

constitute

case, and that

provided no explicit instruction

the use of uncounted dissimilar

that

this argument, noting both that

in a sufficiently atypical

the guideline commentary

from

springboard

to limit gratuitously the kinds of factors that could

grounds for departure

predicate.

court could not use his uncounted,

juvenile

it contravened the Sentencing

juvenile crimes

juvenile misconduct.

as to

See id. at
___ ___

Both

observations are

apropos

here.

Moreover,

the

fundamental lesson to be derived from Doe is "that a court should

___

not infer from

that

inexplicit Guidelines language, or

authorizes

use of

particular

factor

from language

as a

basis

for

10

departure in some cases, an absolute barrier in principle against

____
________

using certain

other factors as

grounds for

departure in

other

_____

unusual circumstances."
_______

Id. at 47.
___

We find that lesson

to be

instructive in the circumstances at hand.

Considerations of consistency also conduce to following

Doe's
___

lead.

the use of

The

guidelines, while not

uncharged, dissimilar conduct as a

4A1.3 departures, explicitly

such

departure

category

does

defendant's

determination

not

is

"that

adequately reflect

past criminal

factor in section

provide that the touchstone

conduct or

defendant will commit other crimes."

the

specifically addressing

the

the

the

USSG

of any

criminal

history

seriousness

of the

likelihood that

4A1.3, p.s.

the

Because

initial CHC determination appraises a defendant's history of

deviant behavior

without regard to

whether his past

crimes are

similar in nature

to the offense of conviction, we see no reason

to insist that courts take an artificially narrow view and assess

the

CHC's

adequacy

through

misconduct

which is

dissimilar

lens

in

that

filters

nature

to the

out

prior

offense

of

conviction, as long as that conduct, alone or in combination with

other known data, involves or portends serious criminal behavior.

On this issue, all roads lead to Rome.

hold that, in an appropriate

can

be based

charged nor

upon

case, a criminal history

prior dissimilar

the subject

Accordingly, we

of a

conduct

departure

that was

conviction.3

In so

approach

"dissimilar

neither

holding, we

____________________

3To

be

sure,

we

should

conduct"

departures, like all other departures, with great circumspection.

Our

holding will

have

force

only in

11

instances

in which

the

align ourselves

Schweihs,
________

respectful

with the Seventh

971 F.2d

1302, 1319

disagreement

with

Circuit, see United States v.

___ ______________

(7th

Cir. 1992),

the Second

States v. Chunza-Plazas, 45 F.3d

______
_____________

and note

Circuit,

see
___

our

United
______

51, 56 (2d Cir. 1995) (vacating

an upward departure based on dissimilar criminal conduct that had

not

resulted

in

conviction and

properly consider that

holding

that

"a court

conduct [under section 4A1.3(e)]

might

only if

it is `similar' to the crime of conviction").

2.
2.

The appellant

imposed sentence

appraisal of

must be vacated

his past

trustworthiness

and did not

Gonzalez-Vazquez,
________________

in the

sufficiently

court rested

information that

credibly show that

bedrock.

its

lacked

the conduct was

Traditional rules

sentencing phase,

34 F.3d

courts exercise wide

because the

that the

This contention is without merit.

We begin with

not pertain

the alternative,

sociopathy upon

meaningfully atypical.

do

contends, in

19,

25 (1st

see United States v.

___ ______________

Cir.

1994), and

discretion in deciding what

dependable to

rely

upon,

of evidence

see
___

trial

information is

United States
______________

v.

Tardiff,
_______

969 F.2d

1283, 1287

(1st

Cir. 1992).

Despite

this

____________________

uncharged, dissimilar

conduct is so

serious that, unless

factored into the sentencing calculus, the resultant

manifestly

deficient

criminality and/or
that

we

will

as

measure

likely recidivism.

encounter

relatively

substantial records of serious,

has never

been brought

Indeed, such cases

such

to

of

the

few

CHC will be

defendant's

Moreover,

it is

past

we anticipate

defendants

who

have

dissimilar criminal conduct that

contemporaneous official

may be limited to those

attention.

types of misconduct,

as domestic abuse, in which the very nature of the criminal

behavior

itself explains

the absence

convictions.

12

of

previous charges

and

latitude, the information upon

is

based

must

which a sentencing

possess "sufficient

support its probable accuracy."

Reliability

the

sentencing

considerations

is a

context,

indicia

USSG

of

determination

reliability to

6A1.3, p.s.

flexible, case-specific

but

of due process

it

always

is

standard in

informed

and experiential knowledge.

by

See
___

United States v. Lanterman, 76 F.3d 158, 160-161 (7th Cir. 1996);

_____________
_________

Tardiff,
_______

969

sentencing

information,

to

F.2d

courts

at

may

1287.

Within

elect

to

those

embrace

wide

divers

parameters,

kinds

of

even hearsay evidence that has never been subjected

cross-examination.

See
___

Tardiff, 969
_______

F.2d at

1287; United
______

States v.
______

Zuleta-Alvarez,
______________

Moreover, factual averments

are deemed

922

F.2d 33,

36

(1st

contained in the PSI

reliable enough to

be used for

See Gonzalez-Vazquez, 34 F.3d at

___ ________________

Cir.

1990).

Report usually

sentencing purposes.

25; United States v. Morillo, 8

_____________
_______

F.3d 864, 872 (1st Cir. 1993) (collecting cases).

Here, the

sentencing court

relied on

Mrs. Brewster's

notarized statement as the principal basis for its findings anent

the

history

determination

of

domestic

that

this

abuse.

statement

salient events is unimpugnable.

In

authored

the first

subject to

place,

our

view,

accurately

the

judge's

portrayed

the

We explain briefly.

Mrs.

the penalties

place, the appellant virtually

In

Brewster's

of perjury.

statement

In

was

the second

conceded the statement's accuracy

13

below,4 and

face

failed to

dispute the

statement's contents

of the district judge's explicit

as true,

which the

the statement

judge

would form part

would decide

in the

warning that, if accepted

of the

what sentence

foundation upon

should be

levied.

Although the

government must carry

regard to facts

supporting an upward

the devoir of

persuasion in

departure and the

accused

has no obligation to offer oppugnant evidence, Brewster's refusal

to

disavow

the

government's

opportunity to do so

935 F.2d

when

can itself be viewed as an

proffered information's

Figaro,
______

accusations

4,

trustworthiness.

8 (1st

Cir.

given

the

indicium of the

See United States v.

___ ______________

1991).

This

inference

is

especially compelling where, as here, the defendant also declines

the

court's invitation

disposition hearing.

to cross-examine

the

declarant at

the

See United States v. Shrader, 56 F.3d 288,

___ ______________
_______

295 (1st Cir. 1995).

Finally,

a number of the allegations contained in Mrs.

Brewster's statement were corroborated by other information, such

as the PSI Report's description of the domestic violence incident

from which the federal charges arose, the original police report,

the

state police interview transcripts, and

the issuance of the

____________________

4The following

colloquy

occurred

during

the

disposition

hearing:

THE COURT:
_________

Is there any respect in which you

believe that anything

report

or

Brewster's

its

contained in the [PSI]

appendices

statement]

described them

which [sic] is

untrue?

DEFENDANT:
_________

as

No, sir.

14

[i.e.,

Mrs.

have

just

inaccurate or

state

court protection order.

a prime indicator

Such independent corroboration is

of reliability in the sentencing

milieu.

See
___

United States v. Ponce, 51 F.3d 820, 828 (9th Cir. 1995).

_____________
_____

We

need

not

tarry.

On

this

record,

it

strains

credulity to characterize Mrs. Brewster's account as unreliable.5

Hence, the district

upon

court did not err in

the information contained

Shrader, 56 F.3d at 294;

_______

F.2d at 7.

accepting

and acting

in the statement.

See, e.g.,
___ ____

Tardiff, 969 F.2d at 1287; Figaro,

_______
______

935

Before

pause to discuss

of

relevancy.

reliably

leaving the

topic of

two related points.

The appellant

reflects a pattern

hints

factual sufficiency,

One

we

concerns the question

that, even

of domestic abuse,

if the

record

that pattern is

not a fair predictor of future criminality along the lines of the

offense of conviction.

recasting of the argument that prior dissimilar conduct cannot

__________

form the fundament for a

it on that basis.

the

This suggestion, however, is no more than

section 4A1.3 departure, and we dismiss

Section 4A1.3 permits a departure

uncounted conduct evidences

"other" or

"further" crimes.

a general propensity

Brewster's

as long as

to commit

pervasive history

of

____________________

5Brewster's

reliability

argument

leans

heavily

on

our

opinion in United States v. McMinn, 103 F.3d 216 (1st Cir. 1997).

_____________

______

McMinn, fairly read, will not bear the weight that Brewster loads
______
upon it.
upheld

In that
a

statements

section

4A1.3

departure based

in

challenge and

part

on

witness

attesting to the seriousness of the defendant's prior

criminal conduct.
that,

case, we rejected a reliability

were it

See id.
___ ___

not for

statements and those

disallowed the upward

at 218.

certain

Brewster's argument suggests

differences between

in issue here, the McMinn

______
departure.

This is

premised primarily on wishful thinking.

15

the McMinn
______

court would have

unfounded conjecture,

domestic violence

undoubtedly presages

the probability that

he

will continue to engage in such offensive behavior.

We add, moreover, that there

case between Brewster's history of

in-possession

offense.

As

is indeed a nexus in this

spousal abuse and his

Judge

Carter

pointed

felon-

out,

the

discovery of the offense conduct arose

directly from an incident

of

the

domestic violence,

and,

although

record

contains

no

inkling that Brewster used the guns to menace his wife, we cannot

fault the

in

district judge's conclusion that the

the home

discourage

was "a

reasonable

Mrs. Brewster from

source of

presence of guns

sufficient fear"

seeking outside assistance

to

in an

effort to end the unremitting abuse.

Finally, we must ask whether the appellant's

immersion

in domestic violence was sufficiently striking to distinguish him

from the mine-run of offenders

upward

316,

departure.

320 (9th

thoroughly

emotional

accuracy

See United States v. Carrillo-Alvarez, 3 F.3d

___ _____________
________________

Cir. 1993).

despicable

abuse

as

The district

chronicle

"highly

all for

court described

physical,

We

verbal,

believe

that

is self-evident and

of section

Phrased another way, since the

compensate at

of

unusual."

of that characterization

atypicality requirement

did not

in CHC III, thereby warranting an

4A1.3

is easily

and

the

that the

fulfilled.

appellant's placement in CHC

this

the

markedly atypical

III

17-year

history of grievous misconduct, an upward departure under section

4A1.3 was warranted.

B.
B.

Prior Uncounted Convictions.

Prior Uncounted Convictions.
___________________________

16

The

appellant

also

contests

underpinning the upward departure:

on the

seven prior convictions

calculation.

analysis

but on

Because

on the pattern

the combined

the

the

second

the district court's reliance

that were excluded from

court did

not

rest

of protracted domestic

effect of that

pillar

pattern and

the CHC

its departure

violence alone,

the litany

of

uncounted convictions, we must address this assignment of error.

Section

consider

4A1.3

specifically

authorizes

prior uncounted convictions, see USSG

___

courts

to

4A1.3(a), and an

upward departure is appropriate if convictions that were excluded

from

the CHC calculation for reasons

such as remoteness "evince

some

significantly

for

unusual penchant

serious criminality."

United States v. Aymelek, 926 F.2d 64, 73 (1st Cir. 1991).

_____________
_______

Here, the uncounted convictions involved a 1977 assault

with a dangerous weapon; a

1979 conviction for operating a motor

vehicle so as to endanger; four convictions in 1980 (two separate

larcenies, an episode

of larceny by check, and

involved breaking and entering into

conviction

for

operating

uninspected

motor vehicle.

an

an incident that

a motor vehicle); and a 1992

unregistered,

uninsured,

Judge Carter's assessment

and

that the

seven

convictions for the most part represented serious offenses

cannot be gainsaid, and, when considered against

the

appellant's

protracted

history

of

the backdrop of

spousal

abuse,

such

convictions are "sufficient to remove the offender from the mine-

run

of other

offenders."

departure is appropriate.

Id.
___

Under

See id.
___ ___

17

these circumstances,

Swimming upstream

against this reality,

the appellant

asseverates that the age of these convictions dispels

that

they indicate an increased

asseveration

lacks force.

any notion

likelihood of recidivism.

To be sure,

the appellant committed

the uncounted offenses between

17 and 20 years ago.6

considered in conjunction with

the counted offenses and

year history of domestic abuse,

string

of

inference of

uncounted

proclivity

for

discretion

in

convictions.

the

convictions

See

lower

the 17-

Given this solid basis for

recidivism and for

serious

But, when

they form discernible links in a

long chain of persistent misconduct.

a powerful

This

reflect

criminality,

court's

a finding

we

rather

detect

no

reliance

on

United States v. Pratt, 73 F.3d

the

that the

unusual

abuse

of

uncounted

450, 453 (1st

___

Cir.

_____________

1996) (ratifying

alia, on

_____

decision to

depart

upward based,

inter

outdated, uncounted convictions for "serious dissimilar

[mis]conduct");

Cir. 1992)

United States v. Tilley, 964 F.2d 66, 74-76 (1st

_____________
______

(similar); Aymelek,
_______

sentencing court properly

"distinguished

by

their

926 F.2d at

relied on

seven outdated

numerosity

considering an

upward departure);

(holding that

uncounted convictions

73 (holding

and

that a

convictions

dangerousness"

see also Doe,

___ ____ ___

18 F.3d

for dissimilar

in

at 45

misconduct,

remote in time, can form the basis for an upward departure).

____________________

6The

parties,

like

the

attention on the six convictions

computation

sentencing

court,

focus

their

that were excluded from the CHC

on temporally-related grounds.

We follow their lead

and omit any

separate discussion of the excluded 1992 conviction

(which, in the overall scheme

of things, appears to carry little

weight).

18

C.
C.

Refusal to Seek Treatment.

Refusal to Seek Treatment.
_________________________

In pronouncing

the

sentence, the district

appellant's failure to

and domestic

violence.

The

pursue counseling for

appellant

court mentioned

alcohol abuse

claims that

the

court

erroneously

employed this finding

as a third

factor justifying

the sentence, and contests it both as a matter of law (he asserts

that

refusal to

departure) and as

seek

treatment

cannot form

the

basis for

a matter of fact (he asserts that he had begun

treatment before his arrest).

Speaking broadly,

ordinarily cannot

the absence

be treated as

of a

mitigating factor

the presence of

an aggravating

factor, and, therefore, it might

arguably be error to premise an

upward

simpliciter,

departure on

refused to seek

a finding,

voluntary treatment.7

point for two reasons.

that a

We decline

defendant

to pursue the

First, the record in this case, read as a

whole, casts doubt upon the appellant's claim that the court used

this finding as an independent

____________________

basis for departing.

Rather, the

7This situation is unlike United States v. Shrader, 56 F.3d

______________
_______

288 (1st Cir. 1995), a case in which the defendant unsuccessfully

challenged a criminal history departure granted on the basis that

his CHC significantly
his proclivity for

understated both his criminal

recidivist behavior.

history and

We noted, inter

alia,

four incidents, not included in the CHC computation, during which

Shrader

operated a motor

vehicle while

under the

influence of

alcohol, and we

further noted that the CHC

"did not account for

the

Shrader

ordered

fact

that

rehabilitation
underlying these

had

programs

designed

incidents."

"record of persistently

thrice

been

to

Id. at
___

deter

the

293.

We held

disregard

Shrader's failure

to seek

of judicial directives,

that this

recidivist tendencies.

19

the case

However, it

treatment, but his

that helped to

undergo

very behavior

disregarding the law" rendered

sufficiently unusual to warrant an upward departure.

was not

to

flagrant

establish his

sentencing

transcript

defendant's

failure

Brewster

abuse]

suggests

to

that the

seek help

court

primarily

considered the

as

evidence that

had "every prospect of continuing [the violent domestic

in the

future"

and

of continuing

to

"indulg[e] in

dangerous and highly reprehensible . . . course of conduct."

Second, to

blended this finding

harmless.

the extent

all

that the

of departure

court

error would be

rests on a combination of valid

a reviewing court

valid grounds, (2)

if at

into the departure mix, any

When a departure

invalid grounds,

(1)

the extent

should uphold it as

is reasonable

in relation

the exclusion of the invalid

and

long as

to the

ground does not

undermine

court,

the departure rationale

and

excision of

(3)

articulated by the sentencing

whole-record review

the invalid ground

the sentence imposed.

offers

an

assurance that

probably would not

have altered

See United States v. Diaz-Bastardo,

___ ______________
_____________

929

F.2d 798, 800 (1st Cir. 1991); see also Figaro, 935 F.2d at 7.
___ ____ ______

In

this

district court's

appellant's

instance,

decision to

prolonged

it is

readily

apparent

depart depended

campaign

of

secondarily on the uncounted convictions.

that the

primarily on

domestic

violence

the

and

It is equally apparent

that those grounds, standing alone, are fully adequate to support

the departure.

refusal to

What the

court perceived to be

seek treatment was at

most a throw-in

the appellant's

a lagniappe

that in all likelihood did not sway, or even affect, the decision

to depart.

"refusal

Hence, we

to

rule that the district court's superfluous

treat" comments,

whether

or

not intended

as

an

20

additional ground for departure, do not undermine the sentence.

V.
V.

THE REASONABLENESS OF THE DEPARTURE

THE REASONABLENESS OF THE DEPARTURE

Having determined

that the stated grounds

are legally

and

factually

sufficient

decision to depart,

departure.

v.

to

support

the

our final

task is

to assay

The yardstick

is reasonableness.

Quinones, 26 F.3d 213, 219 (1st

________

Diaz-Villafane,
______________

U.S.C.

874 F.2d

3742(e)(3)

43, 49

(1994).

sentencing

See
___

court's

the degree

of

United States
_____________

Cir. 1994); United States v.

_____________

(1st Cir.

This

1989); see
___

also 18
____

criterion requires

us

to

consider not only the trial court's reasons for departing, see 18
___

U.S.C.

3742(e)(3)(B), but also "the overall aggregate

circumstances pertaining to

offender

the offense of conviction and to the

who committed it,"

330, 337 (1st Cir. 1990).

sentencing

court

that

of known

United States
_____________

v. Ocasio,
______

914 F.2d

Furthermore, we must determine whether

purports

to

undertake

so-called

horizontal departure,8 such as a criminal history departure under

section 4A1.3, has fulfilled

evaluate

adjacent criminal history categories in sequence.

e.g., Pratt, 73 F.3d at

____ _____

depart

its guideline-imposed obligation to

pursuant

to

453 (concluding that a court seeking

section

4A1.3

must

determine

that

See,
___

to

the

____________________

8Departures
horizontal

because, in

category, "the
table

pursuant

court

to

USSG

selecting an

4A1.3
adequate

moves horizontally

through successively

higher

are

CHCs

criminal history

across the
until

appropriate, or `reflective' sentencing range."

Hardy, 99
_____

F.3d 1242, 1248

(1st Cir.

1996).

considered

it

sentencing
reaches

an

United States v.
_____________
By

contrast, USSG

5K2.0 authorizes a court to

depart by moving along the vertical

axis of the sentencing table

and selecting an offense level that

reflects

the

impact

of

the

aggravating

circumstance which makes the offense

id.
___

21

(or

mitigating)

of conviction unusual.

See
___

offender's

criminal history is similar to the criminal histories

of defendants in

Aymelek,
_______

926

departures

from one

the CHC to which the court

F.2d

at

70

require the use

(explaining

of analogies

wishes to migrate);

that

by, in

"section

4A1.3

effect, moving

criminal history category to another"); see also United

___ ____ ______

States
______

v. Tropiano,
________

50 F.3d

157, 162

(2d Cir.

1995) (holding

that,

under section

4A1.3, a

court

is required

to "proceed[]

sequentially from the criminal history category determined by the

defendant's

criminal history

criminal history category

fits the defendant").

exposure

to the

circumstances

appellate

degrees

of

a more

disturb

only

if

it

to

has first-hand

depart is

determinations

clearly

higher

a category that

intimate knowledge

the decision

should

sentencing court abused

through each

Because a sentencing court

accused and

departure

score

until it settles upon

upon which

courts

point

premised,

implicating

appears

its considerable discretion.

of the

that

the

See Diaz___ _____

Villafane, 874 F.2d at 49-50.

_________

In this instance, the court leapfrogged over CHC IV and

departed from CHC III to CHC V, thereby upgrading the GSR

maximum of 41 months to a maximum of 63 months.

It

from a

then imposed

a 63-month sentence.

term,

followed by

The court reasoned that this incarcerative

three

accomplish two things:

years

of

supervised

leave

seriousness

home, and

would

it would ensure judicial supervision

the appellant's activities until his youngest

to

release,

it

would

of the appellant's

son was old enough

appropriately

criminality and

22

of

reflect both

the

the concomitant

risk of recidivism.

We find nothing unacceptable

in the extent

of the departure.

At

the

threshold,

we

dismiss

appellant's suggestion that the district

to

explain

magnitude.

must

its

reasons

for

selecting

The requirement that

out

of

hand

the

court failed adequately

departure

courts departing

of

this

horizontally

look to adjacent criminal history categories in sequence is

important,

but it is

See Aymelek, 926

___ _______

explicitly

not to be

F.2d at

discuss

the

70.

construed in

a robotic manner.

Here, though the

inadequacy

of

CHC

court did

IV,

it

rationale for its choice of CHC V transparently clear.

the court's explanation

satisfied

its concerns

of why a sentence available

particularly

its

made

not

the

Moreover,

under CHC V

concern about

Mrs.

Brewster's welfare in relation to the childrens' ages

facto

as

an

Accordingly,

explanation

the

of

explanation

why CHC

IV

would

served de

not

substantially complies

suffice.

with

the

extent

of

requirement contained in section 4A1.3.

The

departure

is

appellant's

draconian

departed upward by

related

deserves

claim

scant

22 months to a point

the maximum allowed under the original

sentencing courts

departure.

Cir.

have substantial

See United States

___ _____________

1993); Aymelek,
_______

that

the

comment.

The

approximately 50% above

GSR.

We are mindful that

leeway regarding degrees

v. Rivera, 994 F.2d 942,

______

926 F.2d

court

at 69

of

950 (1st

(citing United States v.

______________

Aguilar-Pena, 887 F.2d 347, 350 (1st Cir. 1989)); Diaz-Villafane,

____________
______________

874

F.2d at

52.

Although

the extent

of the departure

in the

23

instant

case

justifying

is

substantial, we

believe

circumstances and the extent of

reasonable balance.

Harotunian, 920
__________

United States v.
______________

No more is exigible.

F.2d

1040, 1045-46

Hardy,
_____

99

that

the departure are in

See United States v.

___ _____________

(1st Cir.

F.3d 1242,

the departure-

1253

1990); see
___

also
____

(1st Cir.

1996)

(affirming upward departure of 300% based

in part on defendant's

"persistent ten-year history of violent anti-social behavior").

VI.
VI.

CONCLUSION
CONCLUSION

We

need go

provided legal

dissimilar

no

further.

authority for the

misconduct

(here, an

We

hold

that USSG

court to depart

4A1.3

for uncharged

ingrained pattern

of domestic

violence) of a kind that evinced both the defendant's significant

likelihood

past.

We

of recidivism

also hold that,

and the

seriousness

in the unique

case, the long and documented history

with a plethora

an upward

court.

criminal

circumstances of

this

of spousal abuse, combined

of uncounted prior convictions,

departure of the

of his

magnitude essayed by

amply justified

the sentencing

Affirmed.
Affirmed.
________

24

APPENDIX
APPENDIX
________

If

reliable information

history

category

indicates

does

not

that the

adequately

criminal

reflect

the

seriousness of the defendant's past criminal conduct or

the likelihood
crimes,

the

departing
range.

that the
court may

from
Such

the

defendant
consider

otherwise

information

may

will commit

other

imposing

a sentence

applicable

guideline

include,

but

is

not

in computing

the

limited to, information concerning:

(a) prior
criminal

sentence(s) not used

history

category (e.g.,
____

sentences

for

foreign and tribal offenses);

(b) prior sentence(s)

of substantially more

than

one year imposed as a result of independent crimes

committed on different occasions;
(c)
civil

prior

similar

misconduct

established by

adjudication or by a failure to comply with

an administrative order;
(d) whether

the defendant

was

pending trial

or

sentencing

on another charge

at the time

of the

instant offense;
(e)

prior

similar

adult

criminal

conduct

not

resulting in a criminal conviction.

A

departure under this provision is warranted when the

criminal

history

category

significantly

represents the seriousness of the defendant's

history

or

the

likelihood

commit further crimes.

review

of all the

that the

. . .

under-

criminal

defendant

The court may,

will

after a

relevant information, conclude that

the defendant's criminal history was significantly more

serious

than that

criminal history

most

defendants

category, and

in

the

therefore consider

same

an

upward departure from the guidelines.

However, a prior

arrest

considered under

record

4A1.3.

USSG

of

4A1.3 (1995).

itself shall

not

be

25