USCA1 Opinion
March 1, 1996
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 94-1852
UNITED STATES OF AMERICA,
Appellee,
v.
JACK BLACK,
Defendant, Appellant.
____________________
No. 95-1149
UNITED STATES OF AMERICA,
Appellee,
v.
HERBERT E. PLYMPTON,
Defendant, Appellant.
__________________
No. 95-1187
UNITED STATES OF AMERICA,
Appellee,
v.
JEFFREY HARRIS LAVIGNE,
Defendant, Appellant.
____________________
ERRATA SHEET
On page 3, lines 9 and 11 down, replace "Black" with "Lavigne".
On page 13, line 4, "latter" should be "later".
On page 20, last line, insert "is" between "departure" and "not".
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 94-1852
UNITED STATES OF AMERICA,
Appellee,
v.
JACK BLACK,
Defendant, Appellant.
____________________
No. 95-1149
UNITED STATES OF AMERICA,
Appellee,
v.
HERBERT E. PLYMPTON,
Defendant, Appellant.
__________________
No. 95-1187
UNITED STATES OF AMERICA,
Appellee,
v.
JEFFREY HARRIS LAVIGNE,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge]
__________________________
____________________
Before
Boudin, Circuit Judge,
_____________
Coffin, Senior Circuit Judge,
____________________
and Rosenn,* Senior Circuit Judge.
____________________
____________________
David A. Schechter, Margaret-Mary Hovarth and Law Offices of
___________________ ______________________ ________________
David A. Schechter on brief for appellant Jack Black.
__________________
Charles J. Rogers, Jr. on brief for appellant Herbert E.
__________________________
Plympton.
Paul A. Dinsmore on brief for appellant Jeffrey Harris Lavigne.
________________
Jeffrey Harris Lavigne on brief pro se.
______________________
Gerard B. Sullivan, Assistant United States Attorney, Sheldon
___________________ _______
Whitehouse, United States Attorney, and Margaret E. Curran, Assistant
__________ __________________
United States Attorney, on briefs for the United States.
____________________
February 27, 1996
____________________
____________________
*Of the Third Circuit, sitting by designation.
BOUDIN, Circuit Judge. Appellants Jack Black, Herbert
_____________
Plympton and Jeffrey Lavigne were indicted in November 1993
and charged with conspiracy to steal and sell goods in
interstate commerce, 18 U.S.C. 371, and with various
substantive crimes incident to the conspiracy. Also named in
the indictment as co-defendants were the alleged ring-leader,
Donald St. Germain, and two others: Raymond Wilbur and Joni
Lynn Smith, who was Plympton's wife. All of the indicted
defendants, except for Lavigne and Plympton, later pled
guilty to specific offenses. Several other co-conspirators
pled guilty to informations.
Lavigne and Black were convicted in separate jury
trials. At trial, the government sought to show that St.
Germain organized a series of thefts of truck trailers and
merchandise in 1991 and 1992. Typically, the thieves used a
borrowed or stolen truck tractor to haul away an unattended
trailer. After checking the contents, they moved the trailer
to various locations in Rhode Island and thereafter disposed
of the merchandise. One storage location was at the American
Waste Paper Company in Cranston, Rhode Island; later, several
shipments were stored at the Plympton farm in Exeter, Rhode
Island.
In Plympton's case, the government dismissed the
conspiracy count against him and tried him on three
substantive counts relating to two of the many thefts
-3-
-3-
attributed to St. Germain. Counts 1 and 2 of the redacted
Plympton indictment charged him with receiving, concealing
and disposing of a shipment of stolen Lands' End merchandise
moving in interstate commerce in the fall of 1992 and of
knowingly possessing stolen goods comprising part of the same
shipment. 18 U.S.C. 2315, 659. Count 3, based solely on
section 2315, involved a shipment of Pennsylvania House
furniture, stolen a month or so later and allegedly also
stored at the Plympton farm.
Lavigne, St. Germain's companion or bodyguard, was
indicted only on a single count. He was charged under 18
U.S.C. 1512(b)(3) with threatening physical harm in order
to delay or prevent one Kathleen Hartman from providing
information to a law enforcement officer concerning
commission of a federal offense. Hartman was the office
manager of American Waste Paper Company and had provided
information to state and federal agents. The government
charged Lavigne with twice intimidating Hartman in the spring
of 1991.
Black, who had pled guilty to conspiracy and to one
substantive count under section 2315, was sentenced to 60
months' imprisonment; Plympton to 41 months; and Lavigne to
46 months. Substantial restitution payments were ordered for
Black and Plympton, and Lavigne was fined $1,000. On appeal,
-4-
-4-
Plympton and Lavigne challenge their convictions, and Black
and Plympton appeal from their sentences.
Plympton. On this appeal, Plympton does not dispute the
________
sufficiency of the evidence on counts 1 and 2 but argues that
they comprised only a single offense, making the indictment
multiplicitous and violating the bar against double jeopardy.
More precisely, Plympton argues that the section 659 offense
is effectively a lesser included offense within section 2315.
If it were, Plympton could not be convicted and sentenced for
both offenses based on the same theft. United States v.
______________
Parrilla-Tirado, 22 F.3d 368, 372 (1st Cir. 1994).
_______________
Under the familiar test of Blockburger v. United States,
___________ _____________
284 U.S. 299, 304 (1932), the two statutes do not punish the
same offense, nor is one included within the other, where
"each provision requires proof of an additional fact which
the other does not." To prove a violation of section 659,
the government had to show that Plympton stole or concealed
property "moving as or . . . part of or . . . constitut[ing]
an interstate . . . shipment"; here, for example, the Lands'
End shipment when stolen had been moving in interstate
commerce.
Section 2315, by contrast, does not require proof that
the theft was from interstate commerce; but it does require a
different interstate-commerce element not required by section
659. Section 2315 punishes receiving or disposing of goods
-5-
-5-
known to be stolen where such goods "have crossed a State . .
. boundary after being stolen." In this case, the Lands' End
shipment, after being stolen in Pennsylvania, was moved to
Plympton's farm in Rhode Island.
The central focus of each statute is somewhat different,
one being concerned primarily with theft and concealment and
the other with the receipt and disposition of stolen
property. Plympton's activity, in the middle of the chain,
brought him within the language of both. And the difference
in the interstate commerce elements meets the mechanical
Blockburger test. The test has been criticized, but it was
___________
properly applied in the district court, happens to do no
injustice here (one trial; no increase in punishment), and is
binding upon us.
No Blockburger problem is presented by count 3. It
___________
concerned a different theft--that of Pennsylvania House
furniture--on a different occasion; and in this instance the
charge was based only upon section 2315. But on this count
Plympton does challenge the sufficiency of the evidence,
arguing that the government failed to prove that the
Pennsylvania House furniture was ever at his farm or, if it
was, that Plympton knew about it.
Taking the evidence in the light most favorable to the
government, United States v. Robles, 45 F.3d 1, 2 (1st Cir.),
_____________ ______
cert. denied, 115 S. Ct. 1416 (1995), the jury could
_____________
-6-
-6-
reasonably conclude that Plympton used his farm to conceal
stolen shipments for St. Germain; some of the stolen Lands'
End merchandise was found on the farm and there was ample
evidence that Plympton knew it was stolen. There was also
evidence that Plympton had earlier concealed a stolen
shipment of K-Mart merchandise on the farm. Against this
background, the evidence to connect Plympton to the
Pennsylvania State furniture shipment was sufficient even if
not overwhelming.
Although none of the furniture was found at the farm,
there was unequivocal testimony from one witness--Frank
Macera--that Plympton received the furniture shipment and
knew it to be stolen. Macera, who had pled guilty to a
criminal information covering the same transaction, was not a
very trustworthy witness. But the jury was entitled to
accept his testimony, which was plausible enough, especially
because technical and eye-witness evidence added small but
useful elements of corroboration.
Finally, Plympton contests his sentence in several
respects. First, in calculating the offense level, the
district court imposed a two-level increase for obstruction
of justice; specifically, the court found that Plympton had
lied at trial when he denied knowing that the Lands' End
merchandise in his barn was stolen and knowing anything about
the Pennsylvania House furniture. No one disputes that the
-7-
-7-
increase was required if Plympton did in fact commit perjury
at trial. U.S.S.G. 3C1.1; United States v. Hernandez
_____________ _________
Coplin, 24 F.3d 312, 317 (1st Cir.), cert. denied, 115 S. Ct.
______ ____________
378 (1994).
Plympton says that the evidence was insufficient to show
that he knew that either load of furniture was stolen. But we
have already said that there was enough to convict as to the
Pennsylvania House furniture theft and the evidence against
him as to the Lands' End theft was even stronger. If it was
enough to convict, it was more than ample for a sentencing
determination under the preponderance of the evidence
standard. United States v. Lombard, 32 F.2d 170, 176 (1st
_____________ _______
Cir. 1995). The claim of inadequate evidence is too weak to
warrant further discussion.
After calculating the offense level, the trial judge
departed upward by two additional levels. The grounds for
this departure were that after conviction but before sentence
Plympton created an irrevocable trust for his six year old
daughter and transferred to it, without consideration, his
real estate and business assets. The trial judge found after
a hearing at which Plympton testified that the purpose of the
transfer was to frustrate collection of a likely fine or
restitution and that Plympton himself regarded the trust as
"a sham."
-8-
-8-
Plympton now attacks the district court's finding,
arguing (as he testified) that his purpose was simply to
provide for his daughter during his imprisonment and in the
event of divorce. But the evidence also showed that Plympton
created the trust shortly after his wife had been ordered to
pay over $400,000 in restitution; that Plympton had been
warned by his lawyer that the trust might be viewed as an
attempt to avoid payment of restitution or fines; and that
Plympton intended to return to operate his business after
release and expected to be able to use the real estate as
well.
Fact-findings by the district court in sentencing,
including departures, are based on the preponderance standard
and subject to reversal only if clearly erroneous. United
______
States v. Porter, 924 F.2d 395, 399 (1st Cir. 1991). The
______ ______
court's findings as to Plympton's aim and attitude are
permissible inferences by a fact-finder who heard Plympton
testify. They are not inconsistent with the further finding
that Plympton also sought through the trust to provide for
____
his daughter and manage his business while in prison. The
end was proper but the means were not.
Although Plympton does not argue the issue in these
terms, we have also considered whether the district court
accepted, and the evidence supports, the government's claim
that Plympton acted in bad faith. Without this additional
-9-
-9-
element, we might have serious concerns. But the district
court's language ("sham," "fraud") makes clear that it did
find bad faith and, again, the inference is permissible under
the clearly erroneous standard. Our concerns, therefore, are
for another occasion.
The most interesting issue is one that Plympton does not
raise, namely, whether the attempt to frustrate a fine or
restitution order is a permissible basis for a departure.
While Plympton did not preserve the issue nor argue it on
appeal, we would at least be faced with a plain error issue
if we thought that the departure were not authorized. There
is no need to discuss the extent of deference that may be due
to the district court, see United States v. Rivera, 994 F.2d
___ _____________ ______
942 (1st Cir. 1993), since we agree that its implicit
interpretation of the guidelines was correct.
A defendant's attempt to frustrate the actual or
anticipated judgment by secreting assets is closely akin to
obstruction of justice; indeed, if Plympton had sought to
hide himself before sentencing in order to avoid prison, he
would plainly be covered by the obstruction guideline and
subject to an automatic two-level enhancement on that
account. U.S.S.G. 3C1.1, Comment. (n. 3(e)). One could
argue that the secreting of assets was covered by the same
guideline but, if not, then by analogy Plympton's conduct
-10-
-10-
properly qualified for a departure under the catchall
departure provision. U.S.S.G. 5K2.0.
Plympton might protest that, since he has already been
given a two-level adjustment for obstruction by perjury, it
is double counting to give him an additional two levels
through the departure mechanism. Of course, the latter
increase results from a different act of obstruction; but
Plympton might respond that the guidelines contemplate only
one two-level increase, no matter how many acts of
obstruction occur and regardless of whether the second act is
considered under section 3C1.1 or 5K2.0.
Here, Plympton's attempt to frustrate restitution was
not just additional perjury but a new and different act of
misbehavior with a different victim; and the sum of the two
is greater than either standing alone. Even if both are
treated as forms of obstruction and are within section 3C1.1-
-a matter we need not decide--section 5K1.0 permits departure
for an aggravating circumstance "of a kind, or to a degree,
_______________
not adequately" considered by the guidelines. The district
court could fairly conclude that this case fell outside the
"heartland" and warranted a departure. Accord United States
______ _____________
v. Merritt, 988 F.2d 1298, 1310-11 (2d Cir.), cert. denied,
_______ ____________
113 S. Ct. 2933 (1993).
Plympton's last sentencing claim is that the district
court acted improperly in requiring him to make restitution
-11-
-11-
either at all or within 60 days. None of the arguments under
this head were presented in the district court. We have
examined them all and conclude that none of the arguments now
offered even arguably points to plain error.
Lavigne. Lavigne, like Plympton, urges that the
_______
evidence was not sufficient to permit a jury to convict him.
The single violation charged in his case was of 18 U.S.C.
1512(b)(3) which in pertinent part punishes anyone who
"knowingly uses intimidation of physical force, [or]
threatens . . . or attempts to do so . . . with intent to .
. . hinder, delay, or prevent the communication to a law
enforcement officer . . . of the United States of information
relating to the commission or possible commission of a
Federal offense . . . ."
The evidence against Lavigne, taken in the light most
favorable to the government, Robles, 45 F.3d at 2, permitted
______
the jury to find the following. Kathleen Hartman was the
officer manager of American Waste Paper and had a romantic
connection to its owner, Frank Luchka. The company was in
bankruptcy and St. Germain persuaded Luchka to allow the
company's premises to be used to store the stolen trailers.
Hartman was aware of these arrangements and assisted with
record-keeping and other tasks concerning the stolen
property.
-12-
-12-
In February 1991, Hartman secretly contacted the Rhode
Island State Police and reported that the site was being used
for stolen property. On April 3, 1991, the company's
premises were raided by the FBI, the state police, and local
police, and a number of stolen trailers were recovered.
Hartman continued to cooperate confidentially with state and
later with federal agents. The conduct for which Lavigne was
indicted comprised two episodes.
First, on the day of the raid, Luchka and Hartman were
present during the search; that evening they met at a nearby
bar and were joined by St. Germain and Lavigne. With Lavigne
barring Hartman's exit from the bar booth, St Germain told
Hartman that he would have her silenced if she spoke to law
enforcement agents. As Hartman went downstairs to the
restrooms, she met Lavigne who was returning up the stairs.
Lavigne stopped and, apparently without saying anything,
lifted his pant leg to reveal a gun in an ankle holster.
Second, a week or so later, Hartman and Luchka were at
another bar and again encountered St. Germain and Lavigne.
St. Germain and Luchka went outside where St. Germain told
Luchka that he thought that Hartman had "blown the whistle"
on the scheme. When they returned, St. Germain asked Hartman
if she had spoken with anyone and, with an oblique reference,
indicated that she would come to harm if she did. During
this warning, Lavigne, who was standing between them with his
-13-
-13-
foot resting on a bar stool, lifted his pants leg to reveal a
leather holster on his ankle.
From this evidence alone, the jury was entitled to infer
that Lavigne was deliberately threatening Hartman with
violence if she cooperated with law enforcement authorities.
Lavigne's pantomime was patently a threat of violence, and
nothing in the statute requires that the threat be verbal.
United States v. Balzano, 916 F.2d 1273, 1291 (7th Cir.
_____________ _______
1990). On appeal, Lavigne offers a more antiseptic version
of what happened, but we have reviewed the transcript and
conclude that the jury was entitled to find the facts as we
have recited them.
Lavigne raises a series of objections based on alleged
misconduct by the prosecution and on the alleged incompetence
of his trial counsel. The misconduct claim is based on the
introduction of testimony by two FBI agents that Lavigne had
admitted intimidating Hartman; this statement was made during
a polygraph examination and, it is argued, therefore should
not have been used by the prosecution. The ineffective
assistance claim rests on trial counsel's failure to elicit
two prior state felonies which were subsequently elicited by
the prosecution; the failure of counsel to call two witnesses
who allegedly would have exonerated Lavigne; and counsel's
failure to object to the introduction of Lavigne's statement
during the polygraph examination.
-14-
-14-
As to the statements made during the polygraph
examination, there was no error here, let alone plain error.
Although the results of polygraph examinations are generally
inadmissible, see United States v. Scarborough, 43 F.3d 1021,
___ _____________ ___________
1026 (6th Cir. 1994), it was not the results of the
_______
examination that were introduced, but only Lavigne's own
admissions to the examiners. Lavigne had signed a waiver of
his right against self-incrimination, and he offers no reason
why the fact that the statements were made during a voluntary
polygraph examination should affect their admissibility.
Lavigne's claim of prosecutorial misconduct is thus without
merit.
Absent unusual circumstances, we do not review claims of
ineffective assistance that have not been raised before the
trial court. United States v. Mala, 7 F.3d 1058, 1063 (1st
_____________ ____
Cir. 1993) cert. denied, 114 S. Ct. 1839 (1994). Each of
____________
Lavigne's claims involves questions of trial tactics and
resulting prejudice and requires inquiry into underlying
facts. We do not think that "the record is sufficiently
developed to allow reasoned consideration of the claim," id.,
___
and therefore decline to reach Lavigne's ineffective
assistance of counsel claim.
Black. Black was arrested in the course of delivering a
_____
portion of a stolen load of Pennsylvania House furniture from
Plympton's farm to a flea market in Revere, Massachusetts.
-15-
-15-
He later pled guilty to two counts, one charging him with
participation in the overall conspiracy and the other
relating to the Revere delivery. 18 U.S.C. 371, 2314. In
exchange, the government agreed among other things to
recommend a sentence at the low end of the applicable
guideline range and to file a downward departure motion if
Black provided substantial assistance.
The presentence report computed Black's adjusted offense
level as 14, based on the value of the goods attributed to
Black and on other adjustments (upward for more than minimal
planning and downward for acceptance of responsibility).
U.S.S.G. 2B1.1, 3E1.1. The presentence report also
computed Black's criminal history points as 21, placing him
in category VI, the highest category. These calculations,
which were accepted by the district court, established a
range of 37 to 46 months' imprisonment.
At the outset of the sentencing hearing, the district
court expressed concern that the resulting range did not
adequately reflect Black's full criminal history. After
letting defense counsel argue against an upward departure,
the district court pointed out that at age 32, Black had
already accumulated 21 criminal history points, 8 more than
were needed to place him in category VI. The court then
reviewed Black's criminal history in detail, describing a
-16-
-16-
succession of offenses and penalties starting at age 18,
Black's juvenile file being sealed:
At age 18 assault, disorderly conduct, malicious
damage, larceny, assault and battery. At 19
larceny. Age 20 assault and battery. Age 20
larceny over $500. This is breaking into an
automobile and stealing a battery and some plumbing
tools which the Defendant got apparently a year
custody and that counts for one point. Age 20,
disorderly conduct. Age 20, possession of
controlled substance which is diazotan. He got two
years suspended. He's a violator on a preexisting
suspended sentence. He gets two years to serve.
That counts for three points. Age 20, shoplifting.
Age 20, conspiracy to commit larceny, larceny over
$500. That counts for one point. That's a one
year suspended sentence, three years probation.
Age 20, possession of a stolen motor vehicle.
Counts for three points. One year custody. This
is a 1979 Ford econoline van which had been stolen
which the Defendant was driving. Age 20,
possession of marijuana, one point, 30 days
custody. Age 20, possession of stolen motor
vehicle which a number of other charges, possession
of needle and syringe. Three years custody. Three
points. Age 21, armed robbery. This is a Dairy
Mart held up at gun point in Warwick. He got 30
years, 11 to serve and 19 suspended. It counts for
three points. Apparently there's a violation there
on that. Since January 27 of 1994, age 29, passing
counterfeit certificates. That's a counterfeit $20
bill. He got five years, six months to serve.
That counts for two. The armed robbery counts for
three. Age 29, disorderly conduct, resisting
arrest. Age 30, simple assault. Counts for one
plus two points because the Defendant committed
this offense while he was on probation, and one
point because he was released from prison less than
two years prior to the instant offense. All this
in 32 years.
The district court then formally concluded that Black's
criminal history category did not adequately represent his
actual criminal history and departed upward from level 14 to
level 17. This increased the guideline range to 51 to 63
-17-
-17-
months. The government recommended a sentence at the low end
of the range, as it had promised but declined to move for a
departure under U.S.S.G. 5K1.1 because Black's assistance
had not proved useful. The district court then sentenced
Black to 60 months' imprisonment, explaining its reasons for
this choice.
On appeal, Black's only challenge is to the district
court's decision to depart upward. The "law" is simply
stated. The guidelines permit such a departure where the
court believes that the criminal history category does not
"adequately reflect the seriousness of the defendant's past
criminal conduct," U.S.S.G. 4A1.3, and this includes "on
occasion" a departure even for a category VI defendant with
an "egregious, serious criminal record [for whom] even the
guideline range for Criminal History Category VI is not
adequate." Id.
___
Putting aside a procedural objection that we think is
without merit, Black makes two different arguments against
the departure decision: the first is a claim that no
departure was justified on the present facts. Since the type
of departure involved is expressly permitted by the
guidelines, the question whether one was justified by the
circumstances here turns on questions of fact, reviewed only
for clear error, and of law application, reviewed
deferentially under "a standard of reasonableness." United
______
-18-
-18-
States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert.
______ ______________ _____
denied, 493 U.S. 862 (1989).
______
The facts are essentially undisputed--no one claims that
the court misdescribed Black's criminal history--so the issue
is one of reasonable judgment in applying the departure
criteria to particular facts. Black says that the district
court acted mechanically, imposing the departure basically
because Black had far more points than the minimum for
category VI. This is not a complete description of what
happened: the district judge mentioned the point
differential but followed this with a lengthy recitation of
Black's actual criminal history, which we have already
quoted.
What this record showed was that in a 14-year criminal
career starting at age 18, Black had been almost constantly
in trouble except for one period spent in prison; that his
offenses involved drugs, theft, repeated physical violence,
and on one occasion firearms; that despite considerable
leniency in punishment at early stages, he regularly resumed
his criminal career; that even a substantial sentence for
armed robbery did not dissuade him from resuming this career
of crime upon his release; and that he had committed crimes
while on suspended sentence and probation.
It is plain that the district court thought that Black
had devoted himself to a career of crime which, given his
-19-
-19-
still young age, was far from over. It followed that a
sentence of three to four years--as provided by the
guidelines--was not very substantial protection to the
community, nor likely to deter a defendant who had
effectively shrugged off an eleven year sentence for armed
robbery. Indeed, the government reports that, when arrested,
Black allegedly told the state police detective that he
"could do the time on his head."
The implicit concerns of the district court are ones
deemed pertinent by the cases which advert to the "frequency
and repetitiveness of the felonious behavior," United States
_____________
v. Ocasio, 914 F.2d 330, 335 (1st Cir. 1990), and the risk
______
of recidivism, United States v. Emery, 991 F.2d 907, 913 (1st
_____________ _____
Cir. 1993). It is hard to quantify these concerns but, on
this issue, we think that the district court was entitled to
take note of the fact that Black had over 150 percent of the
points needed for category VI. We agree with Black that in
some cases departures have been based on worse records but do
not think that the district court's decision to depart here
was unreasonable.
It would have been helpful if these inferences had been
spelled out by the district judge. Ocasio, 914 F.2d at 335 &
______
n.3. But we think they are obvious in the district court's
recitation of Black's criminal history and certain other
remarks made by the judge at sentencing. Upward departures
-20-
-20-
are serious business; and, although mindful of the time
pressures on the district courts, we urge again that some
expression of reasoning, as well as fact-finding, accompany a
departure. E.g., Emery, 991 F.2d at 913. But we will not
____ _____
remand for an explanation that is so clearly implicit in what
the district court found.
Black's second argument is that the degree of departure
was unreasonable or at least inadequately explained. The
increase from level 14 to level 17, given Black's criminal
history category, amounted to an increase in the sentencing
range which can be measured in several ways: as a
percentage, it is an increase of minimums and maximums of
about one-third, which sounds substantial; but in terms of
months, it increases the ultimate range, measured by the
midpoint of each range, by about 15 months--something less
than overwhelming.
The latter figure alone suggests that, by a standard of
reasonableness, the degree of the departure was not
disproportionate, given Black's record and the implicit
rationale of the district court for making any departure.
Even looked at in percentage terms, a 30 percent departure is
not out of line with past precedent, using criminal history
points as a crude way of comparing like with like. Cf.
___
Emery, 991 F.2d at 914 (upholding 41 percent, 21-month
_____
departure for offender with 20 criminal history points);
-21-
-21-
Brown, 899 F.2d at 96 (upholding 133 percent, 12-month
_____
departure for offender with 20 criminal history points).
But Black mainly attacks the degree of the departure on
the ground that the district court did not explain its choice
_______
of three levels rather than some other figure. It is true
that the court gave no explicit explanation directed at the
choice of a particular figure. But at least where a small
departure is involved, it may be difficult to provide any
explanation over and above that given for the decision to
_______________
depart. Thus, we have held that "a reasoned justification
for [the] decision to depart"--readily inferred in this case-
-may also constitute "an adequate summary from which an
appellate tribunal can gauge the reasonableness of the
departure's extent." Emery, 991 F.2d at 336-37.
_____
In this case the departure, measured by months, was
quite modest and Black's only practical concern is with why
he did not receive even less. It is hard to know how the
district court could have explained this choice--to depart by
____
three levels instead of one or two--except to say that the
grounds for departure called for more than a slap on the
wrist. Given the modesty of the departure and its alignment
with prior cases, such as Emery and Brown, we do not think
_____ _____
that the lack of an explanation can be deemed prejudicial or
casts any doubt on the facial reasonableness of the
departure.
-22-
-22-
Affirmed.
________
-23-
-23-
