USCA1 Opinion

United States Court of Appeals

For the First Circuit
____________________

No. 95-1606

UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM H. CARVELL,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Stahl and Lynch, Circuit Judges.

______________

____________________

James R. Bushell for appellant.

________________
Helene Kazanjian, Assistant United States Attorney, with whom
________________
P. McCloskey,
_____________
Assistant United

United
States

States

Attorney,

Attorney,

were on

and

George T. Dilwor
__________________

brief,

for

the

Uni

States.

____________________

January 19, 1996

____________________

LYNCH,
LYNCH,

year old Maine

Circuit Judge.
Circuit Judge.
_____________

William

farmer, was sentenced

Carvell, a

to prison for

fifty

seventy

months on

marijuana

charges.

The

question on

appeal

whether the Sentencing Guidelines prohibited the trial

is

judge

from exercising discretion to depart downward in the sentence

given.

Carvell

pled guilty to growing

was for his

own use

to combat his

tendencies.

The trial

the Guidelines' "drug

any

downward departure under

The

judge

departure prohibition,

for the

he would

have

consider a

harms"

the "lesser

that, but

departure.

"lesser

provision

suicidal

matter of

dependency" prohibition overrode

through a downward

authority to

depression and

judge concluded that, as a

law,

also noted

marijuana, saying it

have

harms" provision.

"drug dependency"

reduced the

We hold that

the court

downward departure

and

return

sentence

the

did

under the

case

for

resentencing.

Carvell also

the

argument that

applied

the

raises for

the first time

marijuana manufacturing

on appeal

statute, as

to him, is invalid in the aftermath of United States

_____________

v. Lopez, 115 S. Ct. 1624 (1995).

_____

We decline to go down that

path.

Having

(save

never lived

during his

subsistence living,

marijuana on

Carvell

his

nine

month

Carvell

six

anywhere but

acre

marriage),

his family

and eking

grew crops

and

family farm

in

produced

Lyman,

farm

out

some

Maine.

lived there with his mother and with his father, for

-33

whom

he had

formal

cared as

the father's

death came.

Carvell's

education stopped with high school; and his only pre-

arrest work experience, other

than on the farm, was

a brief

stint at the Portsmouth Naval Shipyard.

Law

informant's tip

the

enforcement

and an aerial

farm and found 467

officials,

acting

overview of the

on

an

farm, raided

marijuana plants, an Excedrin bottle

containing marijuana seeds, some growing supplies and smoking

paraphernalia and some more

marijuana in the barn.

Because

the Sentencing Guidelines count each plant as equivalent to 1

kilogram,

amounted

Carvell.1

the

to

plants, together

468

kilograms

U.S.S.G.

Carvell

of

with

the other

marijuana

marijuana,

attributable

to

2D1.1(c) (Nov. 1994).

was

arrested

on Halloween

in

1994

and

indicted on one count of knowingly "manufacturing" marijuana.

21 U.S.C.

841(a)(1) & (b)(1)(B).

the police, the Maine Drug

Attorney, and pled guilty.

____________________

Carvell cooperated with

Enforcement Agency, and the

U.S.

1.

In fact the plants weighed 67 pounds or 30 kilograms, but

the

Guidelines require

kilogram when
U.S.S.G.

the offense

2D1.1(c).

punish growers

that each

plant be

involves more than

This

of marihuana

by

the scale

operation and not just by the

plants

seized at a given moment."

F.2d 397,

401 (1st

fifty plants.

or potential

to
of

weight [or size] of the

United States v. McMahon,
_____________
_______

Cir.)(citation and

omitted; alteration in original),

(1991).

as one

is because "Congress intended

their

935

counted

quotation marks

cert. denied, 502 U.S. 897

_____ ______

The district court here took judicial notice that in

fact plants may not produce one kilogram each.

-44

During the time

before his

plea, Carvell

condition that

became depressed

Medical

after his preliminary hearing

and

was released from

the

he not use marijuana.

custody on

Consequently, Carvell

and suicidal and was admitted

Center.

He

was

kept

for

two

to the Maine

weeks,

received

medications and therapy and was released to jail.

At his sentencing

hearing, Carvell testified

he suffered from severe depression

that his illness made

help

in

1968,

depression and

was

was

since the mid 1960's

him feel suicidal.

diagnosed

prescribed

as

He

suffering

medication.

that

and

sought medical

from

chronic

Carvell

also

testified that he became ill from the medication and that his

physician

recommended that

he

use marijuana

to treat

his

depression.

on.

In 1970

of a pound

in

He tried it, found that it helped and so he kept

Carvell was arrested for selling

three fourths

of marijuana and was remanded to the state prison

Thomaston,

incarceration

Maine

he was

for

nine

told by

months.

the prison

marijuana relieved depression.

In 1988,

During

his

psychiatrist that

he was arrested for

cultivating marijuana and sentenced

to five years in prison.

Carvell continued to use marijuana

in violation of the terms

of

his

probation

under the

1988

sentence.

As for

the

marijuana he grew in 1994, he said it was to insure he had an

adequate

supply

admitted

that

to

he

get

him

through

intermittently

-5-

sold

the

some

year.

Carvell

marijuana

to

friends

without making a profit, saying it was mostly to the

same person, also suffering

from depression.

The government

did not contest Carvell's claim of psychiatric illness.

Carvell,

under

new

medication

from

the

Medical Center, addressed the district court, saying:

[T]he only reason I used marijuana was to

keep

from being

suicidal, and

that now

Maine

that I

have found

that really
that

proper medication

works . . .

I would ever

I don't believe

be tempted

. .

. in

breaking the law to treat my depression.

The district court found Carvell credible, that Carvell had a

history of major depression,

least one

that

that he had been advised

doctor that marijuana was

Carvell

medication and

had

not

an effective treatment,

previously

found

an

alternative

that Carvell was sincere both in stating that

he used marijuana to

prevent himself from attempting suicide

and in believing he no longer needed marijuana.

The district court concluded:

Were 5H1.4 not so

clear, I would grant a

departure under 5K2.11, the

policy statement . .

lesser harms

. . I am absolutely

convinced, in light of the testimony I've

heard,

by at

that

believed that

Mr.
he

Carvell
had a

severe

sincerely
medical

problem

that would lead him to seriously

consider suicide, and

that to avoid that

situation

he

committed

providing

for

himself

the

crime

marijuana.

of
The

policy statement [section 5K2.11] goes on

to

say,

"In

such

sentence

may

be

that

the

a reduced

appropriate,

provided

circumstances

diminish society's
the conduct."
the

instances

significantly

interest in punishing
would find that

to be

case here . . . . [F]or all of those

-66

reasons,
the

would depart

lesser harms

downward under

provision and

I would

depart downward to the mandatory minimum

of
do

60 months in this case.

so,

because

government

has

precludes

that

But I do not

believe

argued],
kind

that
of

[as

the
5H1.4

analysis

[paragraph structure omitted].

The government also said

it believed the Guidelines

gave it

no flexibility as to its recommendation.

Guidelines Analysis
___________________

The question

Guidelines

section

Including Drug . .

judge on

under

5H1.4,

a legal one

of whether

concerning "Physical

Condition,

. Dependence or Abuse" prohibits

these facts

Guidelines

presented is

from considering a

section

5K2.11,

the

a trial

downward departure

"lesser

harms"

provision.

court's

We

give substantial

findings

application

that

of both

the

deference to

factual

section

the district

predicates

5H1.4 and

for

the

section 5K2.11

are

present.

Review of

for clear error

the sentencing court's fact

and we "will not

findings is

disturb supported findings

unless our scrutiny of the record convinces us that a serious

mistake was made."

110-11 (1st

court

Cir. 1990) (citations omitted).

found that:

that precipitated

needed

United States v. Sklar,

______________
_____

to use

committing

(i) Carvell

had a

his dependence;

marijuana in

suicide;

(iii) he

order

920 F.2d

107,

The sentencing

psychological problem

(ii) Carvell

believed he

to prevent

himself from

had tried

legally prescribed

-77

drugs, but they had

failed, and he had turned

to marijuana;

(iv) at least one doctor had advised Carvell to use marijuana

to

alleviate his

problem;

marijuana again because he

that worked to solve

that

and (v)

Carvell

would not

use

had found legally available drugs

his problem.

The district

Carvell believed that using marijuana

court found

was the only way

he

could keep from committing suicide and that, as a factual

matter, Carvell would qualify

the

lesser harms

determinations

States v.
______

for a downward departure under

provision of

are for

the

Rivera, 994 F.2d

______

record contains no basis

the Guidelines.

sentencing court.

942, 950

These fact

See
___

United
______

(1st Cir. 1993).

The

for disturbing the district court's

fact findings here.

We

review de
__

novo the
____

legal question

section 5H1.4 precludes any downward

5K2.11.

Cir.

departure under section

See United States v. Schultz, 970 F.2d 960, 962 (1st

___ _____________
_______

1992)

interplay

of whether

("The

among

legal

determination

related guidelines

is

as

to

the

subject to

proper

plenary

review."),

cert.
_____

government

urged and the

barred

section

from

denied,
______

granting

5K2.11,2

the

113

S.

Ct. 1020

(1993).

sentencing judge felt

Carvell a

"lesser

downward

harms"

2.

provision,

Section 5K2.11 provides in pertinent part:

Lesser Harms (Policy Statement)

____________

-88

that he was

departure

____________________

The

under

because

section

5H1.43

prohibits

downward

departures

____________________

Sometimes, a defendant may commit a crime

in

order to

harm.

In

sentence
that

avoid
such

may

the

be

instances,

the conduct,

greater
reduced
provided

significantly

interest in punishing

for example, in the case of

mercy killing.

Where the interest in

punishment or deterrence is
a

appropriate,

circumstances

diminish society's

a perceived

reduction

in

not reduced,

sentence

is

not

warranted. . . .

In other instances, conduct may not cause

or threaten the harm or evil sought to be
prevented
offense at

by

the

issue.

law

proscribing

For example,

the

where a

for

drug

war

veteran possessed

grenade as a trophy,
possessed
display

a
in a

a machine

gun or

or a school teacher

controlled

substance

drug education

for

program, a

reduced sentence might be warranted.

U.S.S.G.

3.

5K2.11, p.s. (Nov. 1994).

Section 5H1.4 provides in relevant part:

Physical Condition, Including Drug or

_________________________________________
Alcohol
Dependence or
Abuse
________________________________

(Policy

Statement)

. . . Drug or alcohol dependence or abuse

is not a

reason for imposing

below the guidelines.

highly

correlated

Substance abuse is
to

propensity to commit crime.

increased risk, it is

a sentence

an

increased
Due

to this

highly recommended

that a defendant who is incarcerated also

be sentenced to supervised release with a
requirement that defendant participate in
an

appropriate

program. . . .

substance

abuse

U.S.S.G.

5H1.4, p.s. (Nov. 1994).

-99

"dependence" or

"dependence

below

the

"abuse."

Section 5H1.4 provides

that drug

or abuse is not a reason for imposing a sentence

Guidelines,"

U.S.S.G.

5H1.4,

p.s. (emphasis

added), while section 5K2.11 allows a departure in sentencing

where a

defendant "commit[s]

greater harm,"

U.S.S.G.

a crime

5K2.11,

to avoid

p.s., in

a perceived

this case,

the

has authority

to

taking of his own life.

We

hold that

district court

consider a downward departure under section

5K2.11, provided
________

there is an appropriate factual predicate,

_____________________________________________

predicate subsumes particular

even if

facts that would

that

be precluded

by section 5H1.4 from forming a basis for departure.

To hold

otherwise

of

would

Commission as

be

inconsistent

expressed in

with the

intent

the relationship between

the

Part H

and Part K, in section 5K2.11 itself, and in the relationship

among other sections

of the

Guidelines.

It

would also

be

inconsistent

with the

method

Circuit in United States v.

______________

of analysis

adopted by

this

107 (1st

Cir.

Sklar, 920 F.2d

_____

1990).

The

structure of

the Guidelines

illuminates that

there is no necessary conflict between the two sections.

United Savings Ass'n

____________________

365,

v. Timbers of Inwood Forest, 484

_________________________

371 (1988) (individual

interpreted

provisions).

in

light

The

of

statutory provisions

their

relationship

"drug dependence" downward

-1010

Cf.
___

U.S.

should be

to

other

departure bar

appears

forth

in Chapter 5, Part

"specific

ordinarily

offender

relevant

sentence should be

U.S.S.G.

Ch.5,

to

H of the

Guidelines, which sets

characteristics"

the

determination

outside the applicable

Pt.H,

intro. comment.

that

of

"are

whether

not

guideline range."

Having discouraged

certain types of characteristics in Chapter 5, Part H as "not

ordinarily relevant" to departures,

the Commission then went

on in Part K

of Chapter 5 to specify permissible grounds for

departures.

U.S.S.G. Ch.5, Pt.K.

Part K

first provides a

general

statement concerning

factors

not

U.S.S.G.

that

adequately

5K2.0, p.s.

may warrant

departures in

considered

Part K then

departure,

by

cases involving

the

Commission.

lists specific grounds

including

the "lesser

harms"

provision.

In light of this structure, the fact that

described

in Chapter 5, Part H as a discouraged or forbidden

ground for departure

necessarily

carefully

a factor

is present

negate departure

detailed

by the

in a case

based on a

Commission in

does not

itself

permissible ground

Part

K.

Part K

complements Congress' goal that the Guidelines not be imposed

"in a mechanistic fashion."

Sess. 4 (1984), reprinted

_________

S. Rep. No. 225, 98th

Cong., 2d

in 1984 U.S.C.C.A.N. 3182, 3234-35

__

("The sentencing guidelines system will not remove all of the

judge's sentencing

judge in making his

discretion.

Instead, it will

guide the

decision on the appropriate sentence.").

-1111

Congress

intended

"the sentencing

judge

[to

act on

her]

obligation to consider all the relevant factors in a case and

to impose a sentence outside the guidelines in an appropriate

case."

1984 U.S.C.C.A.N. at 3235.

The

limitation contained

"lesser harms" provision, section

scope in relation

within the

text

of the

5K2.11, sheds light on its

to section 5H1.4.

Section 5K2.11 provides

that "[w]here the interest in punishment or deterrence is not

reduced, a reduction in sentence is not warranted."

5K2.11, p.s.

that the

have

Here, where the record

alternative to

the

taking of

his

own

punishment

or

deterrence

of

drug

reasonably be thought

ordinary drug

clearly demonstrates

Carvell's marijuana use

been

to be

life,

reduced.

dependence case, it

U.S.S.G.

might well

the interest

"manufacturing"

In

contrast, in

is difficult

to see

in

could

the

how

that

limitation in

Commission

has

section 5K2.11

specified

that

could be

society's

avoided.

interest

The

in

punishment and deterrence outweighs the "drugs made me do it"

excuse

under

for

the

crimes committed

influence

of

to feed

drugs.

Moreover, claims of being driven

of

prior

drug

socioeconomic

use,

life

U.S.S.G.

or while

5H1.4,

p.s.

to drugs by the habituation

disadvantaged

conditions

drug habits

been

weighed

or

poor

by

the

Commission and found insufficient ordinarily to overcome

the

-1212

have

upbringing

societal interest in

deterrence and

punishment.4

U.S.S.G.

5H1.4, p.s., 5H1.10, p.s. & 5H1.12, p.s.

This

dependence is

the

"lesser

Carvell

district

is

not a

case

where

the very element driving

harms" provision.

was not

byproduct of

court credited

Carvell's

the defendant's

drug

the applicability of

The

risk of

suicide

for

his

drug dependence:

the

testimony

that fear

he

would take his own life led him to use drugs, not vice versa.

The avoidance

of suicide, not

drug use, drives

the "lesser

harms" analysis here.

Nor

departure here

p.s.,

which

emotional

5H1.3

is

there

discourages

conditions" as

explicitly

Part

to think

would be inconsistent with

permits

emotional conditions"

5,

reason

K, Subpart

consideration

grounds

for

that

U.S.S.G.

of

consideration

of

U.S.S.G.

5H1.3,

downward

5H1.3,

"mental

departure.

when they are provided

2.

and

Section

"mental

and

for in Chapter

p.s.

That is

____________________

4.

Further, as

on the

Judge Selya's important and

Sentencing Guidelines notes,

seminal article

departures based solely

on

drug

dependence

defendants

that is

free defendants

could

"confer a

benefit

unavailable to similarly

(and thus would create

to develop such a problem)."

on

addicted

situated drug-

a perverse incentive

Bruce M. Selya & Matthew Kipp,

An Examination of Emerging Departure Jurisprudence under the

_____________________________________________________________
Federal Sentencing Guidelines, 67 Notre
______________________________
(1991)

(footnote

omitted).

No such

Dame L. Rev.
incentive

1, 35

would

be

created by a downward departure here under section 5K2.11.

-1313

exactly

where

section

5K2.11

is located.5

Indeed,

the

Commission chose to leave the limitation in section 5K2.11 to

cases where the interest in

reduced.

See U.S.S.G.
___

deterrence or punishment was not

5K2.11.

Our conclusion that the "drug dependence" departure

bar

does not

preclude

consistent with the

a "lesser

harms" departure

here is

law of this Circuit concerning whether a

defendant's post-arrest rehabilitation

from drug use can

be

considered

In

v.

as a

sentencing

Sklar, 920 F.2d 107

_____

factor.

(1st Cir. 1990), this Court

defendant's drug rehabilitation

at

least

as

United States
_____________

factor in

could be taken

deciding

whether

said that a

into account

departure

is

warranted and that, if "significantly unusual," a defendant's

post-arrest rehabilitation might itself

provide a ground for

downward departure.6

This was so

although drug "dependence

____________________

5.

See United States v.

___ _____________

Cir.

1994)

determination

Hines, 26 F.3d 1469, 1478

_____

(mental

and

emotional

that

upward

n.6 (9th

conditions relevant

departure is

warranted

to

in
the

extent permitted in section 5K2.0); United States v. Russell,

_____________
_______
917 F.2d

512, 517

(11th Cir.

1990)

(mental and

emotional

conditions relevant in determination of downward departure to

the extent

provided in

section 5K2.12 (coercion

or duress)

and 5K2.13 (diminished capacity)), cert. denied, 499 U.S. 953

_____ ______
(1991); United States v. Saldana, Crim. No. 88-00196, 1989 WL
_____________
_______
61140, *2 (M.D.Pa. May
under the

19, 1989) (downward departure allowed

"lesser harms" provision

and emotional

where defendant's mental

condition resulted in his

perception that the

commission of crime was warranted to avoid a greater harm).

6.

Sklar held that,

_____

is not

a grounds

ordinarily, post-arrest

for departure because

rehabilitation

such rehabilitation

can adequately be taken into account through the

acceptance-of-responsibility
See Sklar, 920 F.2d at 115-16.
___ _____

credit under

granting of

U.S.S.G.

3E1.1.

-1414

or

abuse"

necessarily

precedes salvation.7

less

reason to

precedes

rehabilitation,

See id. at 115-16 & n.9.

___ ___

believe

that section

like

sin

There is even

5H1.4 bars

departure

here, where the defendant's perception that he was avoiding a

greater harm,

unlike a

defendant's drug rehabilitation,

is

expressly

permitted

by

downward departure.8

the

Cf.
___

Guidelines

as

United States
_____________

ground

v. Hines, 26
_____

1469, 1478 (9th Cir. 1994)

(district court had authority

consider

from Guidelines

upward departure

category based

on defendant's dangerous

provided in U.S.S.G.

for

F.3d

to

criminal history

mental condition as

4A1.3, even though mental condition is

ordinarily discouraged

as a ground for

departure by section

5H1.3).

Concluding

does

not here

bar

that

the

a downward

"drug dependence"

departure where

provision

the "lesser

____________________

7.

See
___

(D.C.
took

also United States v.

____ _____________
Cir. 1991) (en banc).

the contrary

position

Harrington, 947 F.2d 956, 962

__________
In his dissent, Judge Silberman
that

rehabilitation cannot

be

taken

into

account

considering departure

either

under

section

from the Guidelines

3E1.1

in

sentence, arguing

that "the Commission rejected drug dependence

rehabilitation

or

and therefore

as a sentencing factor under section 5H1.4."

Id. at 970 (Silberman, J., dissenting).

___

8.

Similarly,

explicitly
shown.
coercion

in

section

5K2.12,

allowed departures

where

the

Commission

coercion or

has

duress is

The fact that age or gender might be a factor in such

has not

barred such

departures, although

each is

itself prohibited as a ground for departure under U.S.S.G.

5H1.1, p.s. & 5H1.10, p.s.
F.2d 894, 898

See United States v. Johnson, 956

___ _____________
_______

(9th Cir. 1992);

United States v.
_____________

Whitetail,
_________

956

F.2d 857, 862 (8th Cir. 1992); United States v. Gaviria,

_____________
_______

804

F. Supp. 476,

479-80 (E.D.N.Y. 1992);

United States v.
_____________

Naylor, 735 F. Supp. 928, 929 (D. Minn. 1990).

______

-1515

harms" provision simultaneously provides a permissible ground

for

such a departure,

argument

argues

that there

that

we reach and

is

marijuana's

yet another

bar.

classification

substance under the Controlled

812, evidences

reject the government's

The

as

government

Schedule

Substances Act, see 21 U.S.C.

___

a legislative determination

that marijuana

"has no currently accepted medical use for treatment," id. at

___

812(b)(1)(B), and thus

the facts here.

precludes a

downward departure

That conclusion does not follow.

on

There

downward

as

is

no

inconsistency

between

Carvell's

departure claim and the classification of marijuana

a Schedule

substance.

Deciding

whether a

downward

departure is warranted under section 5K2.11 in this case does

not
___

require

an

examination

"currently accepted medical

or

of

use," 21 U.S.C.

satisfies the other factual

Schedule

upon

I.

whether

marijuana

has

812(b)(1)(B),9

criteria for being listed on

Nor does the section 5K2.11 inquiry even depend

determination of

whether

the

medical benefits

of

Carvell's marijuana use in his particular case outweighed the

risks.

5K2.11

Rather, the sole dispositive

is

Schedule I

whether

taking as

substance and has no

given
_____

question under section

that marijuana

is a

"currently accepted medical

use for treatment"

the defendant here committed the offense

____________________

9.

See
___

also 57
____

Fed.

Reg. 10,499,

(final order of Administrator

10,506 (Mar.

26, 1992)

of DEA, setting forth specific

criteria for finding "currently accepted medical use").

-1616

conduct "in order

to avoid a

perceived greater harm,"

thus

falling

under section

court had

5K2.11.

We

discretion to consider a

hold that

the district

downward departure under

section 5K2.11.

Carvell's Commerce Clause Attack on 21 U.S.C.

841(a)(1)
_____________________________________________________________

Carvell

argues that

district court lacked subject

U.S.C.

power

the

841(a)(1),

there

time on

as applied

appeal,

crime, as

the

matter jurisdiction in that 21

to him,

under the Commerce Clause.

first

was no

exceeded Congress'

He raises the argument for

positing that

the

argument is

nonetheless timely because his guilty plea was entered before

the

decision

in United States v.
______________

Lopez,
_____

115 S.

Ct. 1624

(1995).

More than

ever, we

have reason

to adhere

to the

normal rule that issues not raised below will not be heard on

appeal unless there was plain error.

113

S. Ct. 1770,

Mosquera, 63 F.3d
________

in-the-law

sympathetic

United States v. Olano,

_____________
_____

1776-77 (1993); United States v. Luciano______________

________

1142, 1156 (1995).

situation

which

view of the

might

This

incline

failure of counsel

is not a change-

us

to

more

to be prescient

enough to raise an issue in

the trial court when the law was

firmly against defendant at

the time.

London, 66
______

F.3d 1227,

1239-40 (1st

Cf. United States v.

___ ______________

Cir. 1995)

excusable where instructions, when given, were in

with newly

minted en

banc decision

-17-

of the First

(waiver was

accordance

Circuit);

17

United States
______________

Lopez
_____

and

v. Collins,
_______

was argued to the

and he

7 (1st

his plea was

on

June 1,

Cir. 1995).

November 8, 1994,

were no secret.

31, 1994,

was sentenced

decided on April 26,

4,

Supreme Court on

the challenges made there

arrested on October

1995,

60 F.3d

Carvell was

on January

1995.

Lopez
_____

23,

was

1995, well before Carvell's sentencing,

giving him ample

time to move to withdraw

his plea based on

Lopez.
_____

Not only

category of

(1st Cir.

constitutionality

1982), but

of

notice to the government

factual

within the

of waived issues

United States v. Krynicki, 689

_____________
________

undertake to resolve a

developed

claim not fit

exceptional cases where review

will be permitted,

291-92

does Carvell's

there is

F.2d 289,

every reason

not to

matter as serious a challenge

to the

criminal

statute

without adequate

and without the benefit of

record

(to the

extent necessary),

sharpening of the issues at

trial, and the district

reasoning.

invitation to so

We decline the

a fully

the

court's

engage.10

The

____________________

10.

Carvell's argument faces the additional

barrier that it

is made in the context of a valid guilty plea.

and
legal

A guilty plea

the ensuing conviction comprehend all of the factual and

elements

sentence,

necessary

and any

to

subsequent

normally

limited to inquiry as

and plea

hearing.

sustain

the

attack on

judgment

and

the conviction

to the validity

is

of the plea

See United States v. Broce, 488 U.S. 563,

___ _____________
_____

569 (1989); United States v. Martinez-Martinez, 69 F.3d 1215,

_____________
_________________
1224 (1st

Cir. 1995);

Valencia v.
________

United States,
_____________

917, 920 (1st

Cir. 1991).

preserved his

Commerce Clause challenge for

not

decide whether

whether any of the

However, since

this doctrine

also

923 F.2d

Carvell has

appeal, we need

bars his

claim, or

narrow exceptions that exist where

-1818

not

it is

district

there

court's

were

"failure" to

Commerce

Clause

prosecution was not clearly

gross

miscarriage

fairness,

of

integrity

proceedings.

consider sua

restrictions

to

defendant's

in error, and did not

justice

or

sponte whether

or

seriously

public reputation

of

produce a

affect

the

the judicial

Olano, 113 S. Ct. at 1779.

_____

Conclusion
__________

The sentencing court determined that it would grant

Carvell

a downward

5K2.11,

the

"lesser

departure

harms"

of ten

months under

provision,

to

the

section

mandatory

minimum sentence of

sixty months, were such a

barred by section 5H1.4.

does

not bar

the

departure not

Having concluded that section 5H1.4

departure in

this

case, we

vacate the
___________

sentence and remand for resentencing with the instruction

_____________________________________________________________

that Carvell be sentenced to the mandatory minimum of sixty

_____________________________________________________________

months.
______

____________________

evident

that "on

the face of

the record

the court

had no

power to enter the conviction or impose the sentence," Broce,

_____
488 U.S. at 569, are available here.

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