USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 95-1674
UNITED STATES,
Appellee,
v.
PHILIP GRANDMAISON,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Keeton,* District Judge.
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Martin G. Weinberg, with whom Oteri, Weinberg & Lawson, Cathy J.
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Green, and Kimberly Homan, Sheketoff & Homan, were on brief for
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appellant.
Peter E. Papps, First Assistant United States Attorney, with whom
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Paul M. Gagnon, United States Attorney, were on brief for appellee.
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March 1, 1996
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*Of the District of Massachusetts, sitting by designation.
BOWNES, Senior Circuit Judge. On February 8, 1995,
BOWNES, Senior Circuit Judge.
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pursuant to a plea agreement with the government, defendant-
appellant Philip Joseph Grandmaison ("Grandmaison") pled
guilty to a one count information charging him with utilizing
the mail system to defraud Nashua, New Hampshire, citizens of
their right to the honest services of their public officials,
in violation of 18 U.S.C. 1341, 1346. Grandmaison now
appeals the eighteen-month sentence of imprisonment he
received, contending that the district court failed to depart
downward from the minimum prison term mandated by the
Sentencing Guidelines ("Guidelines") because of the erroneous
view that it lacked authority to do so. We agree that the
district court misapprehended its authority to depart
downward on aberrant behavior grounds. See Federal
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Sentencing Guidelines Manual Ch. 1, Pt. A, Introduction
4(d) (1994). Accordingly, we vacate the sentence and remand
to the district court for a determination of whether a
downward departure on the basis of aberrant behavior is
warranted in this case. Jurisdiction stems from 18 U.S.C.
3742.
I. THE FACTS
I. THE FACTS
We consider the facts as set forth in the
unobjected- to portions of the Presentence Investigation
Report ("PSR"), the information to which defendant pled
guilty, and the sentencing hearing transcript. See, e.g.,
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United States v. LeBlanc, 24 F.3d 340, 342 (1st Cir.), cert.
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denied, -- U.S. --, 115 S. Ct. 250 (1994); United States v.
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Brewster, 1 F.3d 51, 52 (1st Cir. 1993). Grandmaison served
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as an "at-large" member on the Nashua Board of Alderman
("Board") from 1986 to 1993. The Board consists of fifteen
members -- six of whom are elected at-large and nine of whom
are elected from one of Nashua's nine electoral wards -- and
functions as Nashua's chief legislative arm, enacting
municipal legislation and approving all financing and
municipal construction projects. Grandmaison served on the
Board's Secondary School Coordinating Committee ("SSCC") and
the Joint Special School Building Committee ("JSSBC").
Like many of his aldermanic colleagues, Grandmaison
also had a full-time job. He was employed as Marketing
Director of the Eckman Construction Company ("Eckman
Construction"), a Bedford, New Hampshire-based company, from
1989 to 1993. In addition to his job as Eckman
Construction's Marketing Director, Grandmaison participated
in a number of charitable activities.
In 1990, the Board began seeking construction bids
for a $6.3 million project, the renovation of Nashua's sixty-
year old Elm Street Junior High School. Both the SSCC and
the JSSBC, the two committees on which Grandmaison served,
play integral roles in selecting a school construction
contractor and in overseeing the construction process. The
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SSCC, inter alia, preselects school construction contractors,
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oversees school construction or renovation work, and makes
recommendations concerning contractor expenditures and
payments. The JSSBC, which is comprised of both alderman and
Nashua School Board members, reviews the SSCC's
recommendations regarding contractors, payments, and contract
modifications.
Eckman Construction submitted a bid for the
lucrative Elm Street School Project contract. In spite of
the conflict in interest, Grandmaison remained on both the
SSCC and the JSSBC for months after Eckman Construction
submitted its bid. He publicly recused himself from both
committees on January 9, 1991, but only after questions were
raised about his connections to Eckman Construction. The
subcommittee vacancies created by Grandmaison's departures
were filled by Alderman Thomas Magee ("Magee"), an at-large
member of the Board and purported construction aficionado.
After recusal from the SSCC and JSSBC, Grandmaison
continued as an at-large member of the Board. He also
secretly took steps to manipulate the contacts he enjoyed as
an alderman to Eckman Construction's advantage. From
February 1991 until shortly before the Elm Street Project was
completed, Grandmaison lobbied three of his aldermanic
colleagues -- Magee, Steve Kuchinski ("Kuchinski"), and Anne
Ackerman ("Ackerman"), SSCC chairperson -- on Eckman
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Construction's behalf. Grandmaison distributed informational
materials and video cassettes about Eckman construction to
both Ackerman and Magee. At the behest of Hal Eckman
("Eckman"), president of Eckman Construction, Grandmaison
gave gratuities, gifts, and other things of value to
Kuchinski, Magee, and Ackerman before and after major
contract selection votes. These gratuities and gift items
included pay-per-view sporting events, dinners, money,
campaign contributions, and promises of future political
support. Grandmaison also extended Ackerman a personal loan
and steered Eckman Construction printing jobs to the printing
business she owned.
These lobbying efforts eventually bore fruit. In
June 1991, the Board awarded the Elm Street Project contract
to Eckman Construction by a vote of eight to seven, with
Kuchinski casting the tie-breaking vote. The project
contract, which the Board subsequently mailed to Eckman
Construction, served as the basis for the charges brought
against Grandmaison. The government charged Grandmaison with
violating 18 U.S.C. 1341, 1346, the mail fraud statute.
Specifically, it maintained that Grandmaison utilized the
mail system to forward a fraudulent scheme in violation of
the oath of honest, faithful, and impartial service he took
before becoming an alderman and a host of state and local
laws pertaining, inter alia, to conflicts of interest,
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influencing discretionary decisions by public servants, and
acceptance of pecuniary benefits by public officials. See
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New Hampshire Revised Statutes Annotated 640 et seq. (1986 &
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Supp. 1994); Nashua, N.H., Rev. Ordinances 2-273, 2-274,
2-276, 2-278; and Nashua, N.H., Rev. Ordinances 7:56,
7:59. The government also prosecuted Magee and Kuchinski for
their roles in this case.
Pursuant to a plea agreement with the government,
Grandmaison pled guilty to a one count information charging
him with utilizing the mail system to defraud Nashua citizens
of their right to the honest services of their public
officials. The district court scheduled a sentencing hearing
and prior thereto received a PSR from the Probation
Department. The PSR prepared by the Probation Department
recommended a total adjusted guideline offense level of
fifteen. This recommendation reflects an eight level
increase in the base offense because a public official in a
decision making position committed the crime and a three
level decrease for acceptance of responsibility. See
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U.S.S.G. 2C1.7(b)(1)(B), 3E1.1 (a) and (b). Because
Grandmaison had no prior criminal record, the Probation
Department placed him in Criminal History Category I,
resulting in a sentencing range of eighteen to twenty-four
months.
II. THE SENTENCING HEARING
II. THE SENTENCING HEARING
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At the sentencing hearing, Grandmaison requested a
downward departure to an offense level of eight, which
corresponds to a sentencing range of zero to six months.
Grandmaison based this request on three interrelated grounds:
1) his criminal conduct constituted "aberrant behavior"
within the meaning of Guidelines Manual Ch. 1, Pt. A,
Introduction
4(d); 2) his extraordinary contributions to family, friends,
and the community were not adequately addressed by the
Guidelines; and 3) the facts of his case warranted a downward
departure by analogy to section 2C1.3 of the Guidelines. The
defense also submitted one hundred letters attesting to
Grandmaison's good deeds and character at the sentencing
hearing. Based on these letters and Grandmaison's prior
record, the government agreed that downward departure on
aberrant behavior grounds was appropriate and recommended a
reduced prison sentence of twelve months and one day.
The district court declined to depart downward on
any of the three grounds advanced by Grandmaison. The court,
citing our decision in United States v. Catucci, 55 F.3d 15,
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19 n.3 (1st Cir. 1995), as support, found that a "downward
departure based on 'aberrant behavior,'" though generally
available under the Guidelines, "was not available as a
matter of law" in this case. It concluded that Grandmaison's
conduct did not fall within the definition of aberrant
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behavior. The definition adopted by the court required a
showing of first-offender status, behavior inconsistent with
otherwise good or exemplary character, and spontaneity or
thoughtlessness in committing the crime of conviction.
Next, the court concluded that the facts did not
warrant downward departure on the basis of Grandmaison's
contribution to family, friends, and the community. It did
not make a specific finding on the section 2C1.3 claim raised
by Grandmaison, but did state that "no other grounds . . .
advanced [by defendant or the government]. . . would justify
departure downward." Accordingly, the court adopted the
PSR's factual findings and offense calculations in full.
Honoring the government's request for leniency, the court
selected the lowest end of the applicable guideline range and
sentenced Grandmaison to an eighteen month term of
imprisonment and two years of supervised release. The court
also assessed Grandmaison $50.00, as required by statute.
III. REFUSALS TO DEPART FROM THE GUIDELINES
III. REFUSALS TO DEPART FROM THE GUIDELINES
Before addressing the three grounds on which
defendant rests his appeal, we briefly discuss the rules
pertaining to refusals to depart from sentences prescribed by
the Guidelines. Under the Sentencing Reform Act, sentencing
courts are expected to apply the Guidelines, adjust the base
offense level as the facts require, calculate a sentencing
range, and impose a sentence within the identified range.
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United States v. Jackson, 30 F.3d 199, 201 (1st Cir. 1994);
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see 18 U.S.C. 3553(b); Guidelines Manual Ch. 1, Pt. A,
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Introduction 4(b). In general, sentencing courts are to
regard "each guideline as carving out a 'heartland,' a set of
typical cases embodying the conduct each guideline
describes." Guidelines Manual Ch. 1, Pt. A, Introduction
comment 4(b). Departures are warranted only where a case is
atypical or where the facts are significantly outside the
norm. Jackson, 30 F.3d at 201.
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Decisions to depart generally fall into one of
three categories: forbidden, discouraged, and encouraged.
Forbidden departures are those based, inter alia, on race,
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sex, national origin, creed, religion, or socioeconomic
status. See Jackson, 30 F.3d at 202; United States v.
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Rivera, 994 F.2d 942, 948-49 (1st Cir. 1993); U.S.S.G.
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5H1.10, 5H1.12. The Sentencing Commission ("Commission") has
expressly precluded departure on these grounds, even where
they make a case atypical or extraordinary. Rivera, 994 F.2d
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at 948-49. Discouraged departures involve factors which were
considered by the Commission -- such as age, family ties and
responsibilities, employment record, good works, or physical
condition -- but which present themselves to an extraordinary
degree in a particular case. United States v. DeMasi, 40
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F.3d 1306, 1323-24 (1st Cir. 1994), cert. denied, -- U.S. --,
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115 S. Ct. 947 (1995); United States v. Hilton, 946 F.2d 955,
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959 (1st Cir. 1991). Encouraged departures, in contrast,
involve considerations not previously taken into account by
the Commission. Hilton, 946 F.2d at 959.
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Because the Commission intended departures on any
grounds to be the exception rather than the rule, Jackson,
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30 F.3d at 201, a district court's refusal to depart --
upward or downward -- is ordinarily not appealable. See
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United States v. DeCosta, 37 F.3d 5, 8 (1st Cir. 1994);
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United States v. Gaines, 7 F.3d 101, 105 (7th Cir. 1993);
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Hilton, 946 F.2d at 957. The well-established rule is that
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appellate courts lack jurisdiction to review discretionary
district court decisions not to depart from sentences imposed
under the Guidelines. See United States v. Byrd, 53 F.3d
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144, 145 (6th Cir. 1995); United States v. Gifford, 17 F.3d
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462, 473 (1st Cir. 1994); United States v. Amparo, 961 F.2d
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288, 292 (1st Cir.), cert. denied, 506 U.S. 878 (1992).
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There are, however, certain exceptions to this
rule. Appellate jurisdiction attaches, for example, where
the record indicates that the trial court's failure to depart
was the product of a mistake of law. Gifford, 17 F.3d at
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473; Amparo, 961 F.2d at 292; Hilton, 946 F.2d at 957. If it
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appears that a misapprehension of the applicable guideline or
miscalculation of the authority to deviate from the guideline
range prevented the court from departing downward, appellate
review is appropriate. Gifford, 17 F.3d at 473; United
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States v. Pierro, 32 F.3d 611, 619 (1st Cir. 1994), cert.
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denied, -- U.S. --, 115 S. Ct. 919 (1995).
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Our review as to whether such a misapprehension of
judicial authority occurred is plenary. United States v.
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Ovalle-M rquez, 36 F.3d 212, 221 (1st Cir. 1994), cert.
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denied, -- U.S. --, 115 S. Ct. 1322 (1995). Plenary review
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also governs where the issue on appeal pertains to the scope
or interpretation of a guideline. United States v. Marcello,
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13 F.3d 752, 755 (3d Cir. 1994)("The question of whether the
district court adopted the proper standard [of
interpretation] is a question of law subject to plenary
review.").
IV. DISCUSSION
IV. DISCUSSION
The crux of Grandmaison's appeal is that the
district court misunderstood the scope of its departure
authority. He argues that the court erroneously concluded
that it was precluded from departing downward on the grounds
of aberrant behavior and extraordinary offender
characteristics. Additionally, he maintains that the court
misapprehended its power to depart downward by analogy to
section 2C1.3 of the Guidelines, which concerns conflicts of
interest. See U.S.S.G. 2C1.3. We begin by analyzing the
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claim that the facts of this case permit downward departure
on the basis of aberrant behavior and discuss the two
remaining bases for appeal in turn.
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A. Aberrant Behavior as a Basis for Downward
A. Aberrant Behavior as a Basis for Downward
Departure.
Departure
1. Jurisdiction and the District Court's
1. Jurisdiction and the District Court's
Refusal to Depart.
Refusal to Depart.
The threshold issue raised by defendant's aberrant
behavior claim is whether we have jurisdiction to review the
district court's refusal to depart downward. Pierro, 32 F.3d
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at 619. We note at the outset, though it does not relate
directly to questions of jurisdiction, that the basic premise
of defendant's aberrant departure claim is correct. The
Guidelines permit downward departures on the basis of
aberrant behavior. See, e.g., Catucci, 55 F.3d at 19 n.3
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(citing cases); Marcello, 13 F.3d at 760 (citing cases);
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Gifford, 17 F.3d at 475; United States v. Morales, 972 F.2d
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1007, 1011 (9th Cir. 1992), cert. denied, -- U.S. --, 113 S.
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Ct. 1665 (1993). Such departures fall into the category
embracing factors not previously considered by the
Commission. United States v. Premachandra, 32 F.3d 346, 349
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(8th Cir. 1994); United States v. Fairless, 975 F.2d 664,
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668-69 (9th Cir. 1992); see Guidelines Manual Ch. 1, Pt. A,
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Introduction 4(d)("The Commission, of course, has not dealt
with the single acts of aberrant behavior that still may
justify probation at higher offense levels through
departures."). And they may be employed whether the sentence
computed involves imprisonment or merely probation. See
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United States v. Duerson, 25 F.3d 376, 380 (6th Cir.
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1994)(citing cases); Fairless, 975 F.2d at 668.
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Consistent with the departure recommendation it
entered at sentencing, the government acknowledges that
aberrant behavior departures are available under the
Guidelines, but maintains that we lack jurisdiction to review
defendant's claim because the district court's refusal to
depart was an exercise of discretion. Defendant disputes
this, arguing that he has cleared his jurisdictional hurdle
because the record clearly shows that the district court's
refusal to depart stemmed from a misapprehension of its
authority to depart on aberrant behavior grounds. See
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Gifford, 17 F.3d at 473; Pierro, 32 F.3d at 611. Having
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reviewed the totality of the record, as we are obligated to
do, see United States v. Morrison, 46 F.3d 127, 130 (1st Cir.
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1995)(citing United States v. LeBlanc, 24 F.3d 340, 348 (1st
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Cir.), cert. denied, -- U.S. --, 115 S. Ct. 250 (1994)), we
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find that the truth lies somewhere between these two
positions.
The record reveals that the district court
understood its general authority to depart on aberrant
behavior grounds, but adopted the wrong standard in
determining whether defendant's behavior was "aberrant" under
the Guidelines. The court erroneously held that an aberrant
behavior departure in this Circuit requires an initial
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finding of "spontaneity" or a "thoughtless act."
Anticipating our review, the court also made it clear that it
would have granted the departure requests entered by both
defendant and the government had it not believed itself bound
to this standard:
THE COURT: And so I'm going to
sentence you at the lowest end of the
guidelines range that otherwise is
applicable in your case. If the Court of
Appeals disagrees with my interpretation
of aberrant behavior and the case is
returned, if it helps the Court of
Appeals in terms of imposing sentence on
appeal or resolving the question on
appeal, assuming you do appeal, I will
say on the record that if I thought I
could depart on a principled basis and
consistent with the law, I would follow
the U.S. Attorney's recommendation and I
would sentence you to one year -- 12
months and one day.
Based on this statement, we think it plain that the court
misunderstood its authority to depart downward under the law
of this Circuit.
We therefore agree with defendant on this initial
matter of jurisdiction. The district court's misapprehension
of its departure authority confers jurisdiction on this
court. See Gifford, 17 F.3d at 473; Pierro, 32 F.3d at 619.
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The de novo standard of review governs our review of this
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aspect of defendant's claim. See Marcello, 13 F.3d at 755.
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2. A Definition of Aberrant Behavior.
2. A Definition of Aberrant Behavior.
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The Guidelines refer to "single acts of aberrant
behavior," but neither define that phrase nor provide any
insight into what the Commission might have meant when it
used it. See Guidelines Manual Ch. 1, Pt. A, Introduction
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4(d); United States v. Williams, 974 F.2d 25, 26 (5th Cir.
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1992), cert. denied, 507 U.S. 934 (1993). Defendant's claim
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presents an issue of first impression in this Circuit. We
have considered cases involving departure requests based on
aberrant behavior, see, e.g., Catucci, 55 F.3d at 19 n.3;
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United States v. Pozzy, 902 F.2d 133, 137-38 (1st Cir.),
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cert. denied, 498 U.S. 943 (1990); United States v. Russell,
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870 F.2d 18, 21 (1st Cir. 1989), but have not had occasion to
define that term with specificity until now. Catucci, supra,
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which the district court erroneously regarded as foreclosing
departure, did not require us to define "aberrant behavior."
In that case, we acknowledged disagreement among the circuits
as to what type of conduct aberrant behavior entails but did
not deem it necessary to articulate a definition for our own
Circuit because we found that the defendant had waived his
departure claim. Grandmaison's claim, in contrast, hinges on
an articulation of an aberrant behavior standard. We,
therefore, turn our attention to that task.
Two cases establish what have come to be recognized
as the outer boundaries of the aberrant behavior spectrum.
United States v. Russell, 870 F.2d 18 (1st Cir. 1989), stands
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at one end of the spectrum and United States v. Carey, 895
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F.2d 318 (7th Cir. 1990), at the other. Russell involved
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criminal conduct which was impulsive and unpremeditated.
Tempted by the prospect of instant wealth, a Wells Fargo
armored truck driver and his partner decided to keep an extra
bag of money mistakenly handed them. The driver, who had no
prior criminal record, returned the money almost immediately
after committing his crime and cooperated in the subsequent
police investigation. In contrast, Carey involved a
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premeditated criminal scheme carried out over a long period
of time. There, a trucking company president engaged in a
check-kiting scheme over a fifteen-month period. Each work
day during this period the company president concealed his
two over-drawn bank accounts by having his bookkeeper prepare
checks to cover the fund shortage. He signed each check and
frequently deposited them himself. The Seventh Circuit held
that this behavior was not "aberrant." 895 F.2d at 324-25.
Uncertainty about the reason for the district court's refusal
to depart precluded this court from deciding that issue in
Russell.
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Circuit courts are divided over where criminal
conduct must fall on the aberrant behavior spectrum to
justify downward departure. As we noted in Catucci, some
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have adopted an expansive view of what aberrant behavior
means in the context of the Guidelines, whereas others
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require a spontaneous or thoughtless act of the sort
committed by the defendant in Russell. The Seventh Circuit's
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decision in Carey provided the moorings for the latter group
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of circuits. The Carey court held that "[a] single act of
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aberrant behavior . . . generally contemplates a spontaneous
and seemingly thoughtless act rather than one which was the
result of substantial planning because an act which occurs
suddenly and is not the result of a continued reflective
process is one for which the defendant may be arguably less
accountable." 895 F.2d at 325. The Seventh Circuit later
reinforced this tight interpretation in United States v.
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Andruska, 964 F.2d 640, 645-46 (7th Cir. 1992), a decision
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reversing a district court's decision to depart downward in a
case involving a woman found guilty of concealing her
fugitive paramour from arrest.
The Third, Fourth, Fifth, and Eighth Circuits have
embraced the Seventh Circuit's view of aberrant behavior.
For example, in Marcello, supra, the Third Circuit explained
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that "there must be some element of abnormal or exceptional
behavior" before adopting the Seventh Circuit's spontaneity
requirement and reversing the district court's decision to
depart downward. 13 F.3d at 761. The Marcello defendant was
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an attorney who, on seven separate occasions, structured bank
deposits to avoid tax reporting requirements in violation of
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31 U.S.C. 5322(a), 5324(3). He committed these offenses
over the span of seven consecutive working days.
Cases involving extensive planning or repeated
criminal acts received similar treatment in the Fourth,
Fifth, and Eighth Circuits. In United States v. Glick, 946
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F.2d 335, 338 (4th Cir. 1991), the Fourth Circuit reversed a
downward departure decision after noting that the defendant
transported letters containing stolen trade secrets across
state lines on several occasions. In Williams, supra, the
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Fifth Circuit affirmed a district court's refusal to depart
downward because the robbery executed by the defendant
involved planning. Similarly, the Eighth Circuit found that
a bank fraud scheme carried out over a one year period lacked
the level of spontaneity and thoughtlessness required by
cases such as Carey. See United States v. Garlich, 951 F.2d
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161, 164 (8th Cir. 1991); see also Premachandra, 32 F.3d at
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349.
In contrast, the Ninth and Tenth Circuits have
eschewed any focus on spontaneity and thoughtlessness, opting
instead for a broad view of aberrant behavior. They require
reviewing courts to employ the totality of the circumstances
test in making aberrant behavior determinations. Under this
test, courts consider a variety of mitigating factors, such
as pecuniary gain to the defendant, prior good deeds, and an
effort to mitigate the effects of the crime in evaluating
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whether a defendant's conduct was unusual or, more
specifically, "aberrant." See, e.g., United States v. Takai,
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941 F.2d 738, 741 (9th Cir. 1991).
In Takai, the Ninth Circuit affirmed the district
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court's decision to depart downward after finding that the
defendants who pled guilty to bribery of and conspiracy to
bribe an Immigration and Naturalization Service official,
inter alia, received no pecuniary gain, had no criminal
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record, and had been influenced by a government agent. A
convergence of factors, such as the defendant's manic
depression, suicidal tendencies, and recent unemployment,
also led the Ninth Circuit to affirm downward departure in
Fairless, supra, an armed robbery case. Similarly, in United
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States v. Pena, 930 F.2d 1486, 1494 (10th Cir. 1991), a drug
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possession case, the Tenth Circuit held that downward
departure was appropriate because the defendant's behavior
was an aberration from her usual conduct, which was
highlighted by long-term employment, no abuse or prior
distribution of controlled substances, and economic support
of her family.
We are persuaded, after reviewing the cases decided
by our colleagues in other circuits, that the approach taken
by the Ninth and Tenth Circuits achieves the balance between
uniformity in sentencing and district court discretion the
Guidelines were intended to strike. See Jackson, 30 F.3d at
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201-02. We, thus, hold that determinations about whether an
offense constitutes a single act of aberrant behavior should
be made by reviewing the totality of the circumstances.
District court judges may consider, inter alia, factors such
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as pecuniary gain to the defendant, charitable activities,
prior good deeds, and efforts to mitigate the effects of the
crime in deciding whether a defendant's conduct is aberrant
in terms of other crimes. See DeMasi, 40 F.3d at 1324
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(departure determination should be made by comparing case to
other cases involving the stated reason for departure).
Spontaneity and thoughtlessness may also be among the factors
considered, though they are not prerequisites for departure.
That aberrant behavior departures are available to
first offenders whose course of criminal conduct involves
more than one criminal act is implicit in our holding. See
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Takai, 941 F.2d at 743. We think the Commission intended the
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word "single" to refer to the crime committed and not to the
various acts involved. As a result, we read the Guidelines'
reference to "single acts of aberrant behavior" to include
multiple acts leading up to the commission of a crime. See
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id. Any other reading would produce an absurd result.
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District courts would be reduced to counting the number of
acts involved in the commission of a crime to determine
whether departure is warranted. Moreover, the practical
effect of such an interpretation would be to make aberrant
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behavior departures virtually unavailable to most defendants
because almost every crime involves a series of criminal
acts. Even the Russell defendant, whose spontaneous actions
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are widely regarded as a classic example of aberrant
behavior, could be understood to have committed more than a
single act of aberrant behavior. He conspired with his
partner to take money from the armored truck he drove; took
the money; and then kept the money for a short period of
time. Thus, we think that focusing on the crime of
conviction instead of the criminal acts committed in carrying
out that crimebest comports with what theCommission intended.
The approach we now adopt does not unnecessarily
expand opportunities for departure under the Guidelines. The
totality of the circumstances test, though admittedly broader
than the spontaneity test employed in Carey, is consistent
_____
with the Commission's intention to limit applications of the
aberrant behavior principle. See Andruska, 964 F.2d at 645.
___ ________
Concerns that it ensures every first offender a downward
departure from their Guidelines-imposed sentence are without
foundation. As the Ninth Circuit explained in United States
_____________
v. Dickey, 924 F.2d 836 (9th Cir. 1991), "aberrant behavior
_________
and first offense are not synonymous." 924 F.2d at 838; see
___
Glick, 946 F.2d at 338. Without more, first-offender status
_____
is not enough to warrant downward departure.
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21
District courts are not, however, precluded from
considering first-offender status as a factor in the
departure calculus. Departure-phase consideration of a
defendant's criminal record does not, we think, wrongly
duplicate the calculations involved in establishing a
defendant's criminal history category under the Guidelines.
First, as we just noted, it is obviously not the case that
every defendant in Criminal History Category I will be
qualified for an aberrant behavior departure. There will be
individuals in that category who, for instance, are not
entitled to departure because they were convicted of several
unrelated offenses or who have been regular participants in
elaborate criminal enterprises. See Morales, 972 F.2d at
___ _______
1011. Second, to the extent that considering a defendant's
criminal record at both the criminal history and departure
stages amounts to double counting, the Guidelines clearly
permit it. But see Marcello, 13 F.3d at 755 (3d Cir.)
___ ___ ________
(concluding that the Guidelines prohibit considering a
defendant's criminal record at both the criminal history and
departure stages). The Guidelines explain that "the court
may depart . . . even though the reason for departure is
taken into consideration . . . if the court determines that,
in light of unusual circumstances, the guideline level
attached to that factor is inadequate." U.S.S.G. 5K2.0.
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22
The question now becomes whether defendant's
conduct falls within the ambit of aberrant behavior under the
standard we have articulated. We leave this to the district
court's discretion. It occupies the best vantage point from
which to make the decision. Rivera, 994 F.2d at 950. We,
______
therefore, vacate defendant's sentence and remand for
resentencing.
B. Extraordinary Offender Characteristics as a
B. Extraordinary Offender Characteristics as a
Basis for Downward Departure.
Basis for Downward Departure.
Defendant's second argument on appeal is that the
district court misunderstood its authority to depart on the
ground of his extraordinary characteristics. We agree that
extraordinary characteristics such as unusual family
obligations or exceptional charitable activities may, in
certain circumstances, provide a basis for a downward
departure. See, e.g., United States v. Haverstat, 22 F.3d
___ ____ ___________________________
790, 795-96 (8th Cir. 1994), cert. denied, -- U.S. --, 116 S.
_____ ______
Ct. 671 (1995); United States v. Canoy, 38 F.3d 893, 905-07
_______________________
(7th Cir. 1994); Rivera, 994 F.2d at 948-53; United States v.
______ ________________
Sclamo, 997 F.2d 970, 973-74 (1st Cir. 1993); Pena, 930 F.2d
______ ____
at 1495; United States v. Big Crow, 898 F.2d 1326, 1332 (8th
_________________________
Cir. 1990). We disagree, however, that the district court
misunderstood its authority to depart. It appears clear that
the court found that defendant's family obligations and
charitable activities, though noteworthy, were neither
extraordinary nor exceptional.
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23
The best indicator of the district court's
unwillingness to depart downward on the basis of
extraordinary characteristics is the stark difference between
the court's sentencing-hearing statements about departure on
this basis and on the grounds of aberrant behavior. When
asked to make a finding about defendant's extraordinary
offender characteristics claim, the district court stated:
THE COURT: To the extent you've asked me
to depart based on that, I would find
that those, extraordinary commitment to
family and extraordinary offender
characteristics, don't rise to the level
that would justify a departure out of the
heartland of the guidelines . . . So to
the extent I have discretion in that
regard, I exercise my discretion not to
depart downward.
These statements make it plain that the district court's
refusal to depart stemmed from an exercise of discretion.
See DeCosta, 37 F.3d at 8 ("[we suggest] . . .[t]hat the
___ _______
district court say . . . that it has considered the
mitigating factors urged but does not find them sufficiently
unusual to warrant a departure in the case at hand."). And
even if we were to assume that these statements are
ambiguous, that ambiguity, without more, would not be enough
to make the district court's refusal to depart appealable.
Morrison, 46 F.3d at 132; see United States v. Romero, 32
________ ___ ________________________
F.3d 641, 654 (1st Cir. 1994). Our review of this matter is,
thus, at an end. We lack jurisdiction to review the district
-24-
24
court's refusal to depart downward on the basis of
extraordinary offender characteristics. Byrd, 53 F.3d at
____
145; Gifford, 17 F.3d at 473.
_______
C. The Heartland of Section 2C1.7 of the
C. The Heartland of Section 2C1.7 of the
Guidelines.
Guidelines.
Defendant's final argument on appeal concerns the
scope of section 2C1.7 of the Guidelines, which corresponds
to 18 U.S.C. 1341, 1346, the mail fraud statute to which
he pled guilty. Without disputing section 2C1.7's general
applicability to his conduct, defendant maintains that the
district court misapprehended its authority to impose a
shorter prison term by departing downward, by analogy, to the
sentence prescribed under section 2C1.3 of the Guidelines.
For individuals in Criminal History Category I, section 2C1.3
-- which concerns conflicts of interest by present and former
federal officers and employees -- carries a sentencing range
of zero to six months. Section 2C1.7 imposes a sentencing
range of eighteen to twenty-four months for individuals in
the same category. See U.S.S.G. 2C1.7 (Fraud Involving
___
Deprivation of the Intangible Right to the Honest Services of
Public Officials); U.S.S.G. 2C1.3 (Conflict of Interest).
Though cast as a claim relating to the district
court's refusal to depart, defendant's argument, at its core,
primarily concerns the heartland of section 2C1.7 of the
Guidelines. Defendant essentially argues that his conduct
falls outside the heartland of section 2C1.7 and within the
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25
scope of section 2C1.3 because it primarily involved a
conflict of interest, not fraud. Because questions
concerning the scope and meaning of a guideline, unlike
questions pertaining to the facts which lead a district court
to render its departure decision, are quintessentially legal
in nature, see LeBlanc, 24 F.3d at 345, Rivera, 994 F.2d at
___ _______ ______
952, we have jurisdiction to review defendant's claim. Our
review is plenary, as it is whenever a district court's
decision "reflect[s] a determination of the purpose of, or an
interpretation of the language in, a guideline or statute."
LeBlanc, 24 F.3d at 344; see United States v. Rosales, 19
_______ ___ _________________________
F.3d 763, 769 (1st Cir. 1994).
To determine whether defendant's conduct is of the
sort which generally falls within section 2C1.7's
"heartland," we must determine the nature of the underlying
crime of mail fraud. See, e.g., LeBlanc, 24 F.3d at 346. We
___ ____ _______
look in part to the language of the mail fraud statute and to
the legislative history which accompanies it. Id. In
___
relevant part, section 1341 provides:
Whoever, having devised or intending to
devise any scheme or artifice to defraud,
or for obtaining money or property by
means of false or fraudulent pretenses,
representations, or promises . . . for
the purpose of executing such scheme or
artifice or attempting so to do, [uses
the mail system or causes it to be used]
shall be fined under this title or
imprisoned not more than five years, or
both. If the violation affects a
financial institution, such person shall
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26
be fined not more than $1,000,000 or
imprisoned not more than 30 years, or
both.
Congress enacted this statute in 1872, as "a
general proscription against using the mails to initiate
correspondence in furtherance of 'any scheme or artifice to
defraud.'" McNally v. United States, 483 U.S. 350, 355, 359
________________________
(1987). The legislative history suggests that Congress
intended the mail fraud statute to protect people from
"schemes to deprive them of their money or property." Id. at
___
356. Before 1987, section 1341 was read as a broad shield,
protecting individuals against schemes to deprive them of
intangible, as well as tangible, property. Then, in 1987,
the Supreme Court held that the statute did not embrace
intangible rights. McNally held that the mail fraud statute
_______
does not prohibit schemes to defraud individuals of their
intangible rights to the honest services of government. 483
U.S. at 359-60; see Carpenter v. United States, 489 U.S. 19,
___ __________________________
25 (1987).
In 1988, Congress enacted section 1346, the honest
services amendment, to reverse the Supreme Court's decision
in McNally. United States v. Bucuvalas, 970 F.2d 937, 942
_______ ___________________________
n.9 (1st Cir. 1992); United States v. Alkins, 925 F.2d 541,
_______________________
548 (2d Cir. 1991); McEvoy Travel Bureau, Inc. v. Heritage
________________________________________
Travel, Inc., 904 F.2d 786, 790 (1st Cir. 1990); see 134
_____________ ___
Cong. Rec. S17360-02 (daily ed. November 10, 1988)(Judiciary
-27-
27
Committee analysis)("This section overturns the decision in
McNally v. United States . . . Under [this] amendment, [the
________________________
mail and wire fraud] statutes will protect . . . the right of
the public to the honest services of public officials.").
Section 1346 became effective on November 18, 1988 and
provides:
For the purposes of this chapter, the
term "scheme or artifice to defraud"
includes a scheme or artifice to deprive
another of the intangible right of honest
services.
See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Title
___
VII, 7603 (a), 102 Stat. 4508 (1988). It restores mail
fraud convictions to their pre-McNally status by allowing the
_______
government to predicate mail fraud prosecutions on
deprivations of the intangible right of honest services.
United States v. Bryan, 58 F.3d 933, 940 n. 1 (4th Cir.
_______________________
1995); Waymer, 55 F.3d at 568 n.3; see 135 Cong. Rec. S1063
______ ___
(daily ed. February 2, 1989)(statement of Sen. Biden). An
offense under section 1346 is established when the evidence
demonstrates that the use of the mail system played a role in
executing the deprivation of the honest services of
government. Schmuck v. United States, 489 U.S. 705, 710
__________________________
(1989)(citing Kann v. United States, 323 U.S. 88, 95 (1944));
_____________________
see United States v. Yefsky, 994 F.2d 885, 890, 892 (1st Cir.
___ _______________________
-28-
28
1993); United States v. Dray, 901 F.2d 1132, 1137 (1st Cir.
______________________
1990), cert. denied, 498 U.S. 895 (1990).
_____ ______
Section 1346 includes cases in which the mail
system plays an integral role in the scheme to defraud
citizenry of the honest services of government, as well as
schemes in which use of the mail system is only incidental to
the larger plan. Id. at 710-11; see United States v. Morrow,
___ ___ _______________________
39 F.3d 1228, 1236-37 (1st Cir. 1994), cert. denied, 115 S.
_____ ______
Ct. 1421 (1995) (mail fraud generally includes incidental use
of the mails in furtherance of a scheme to defraud). The
Eleventh Circuit recently affirmed a defendant's conviction
on twenty-two counts of mail fraud even though the defendant
only used the mail system to receive payments from his
partner in a money laundering the scheme. In Waymer, supra,
______ _____
the court rejected claims that section 1346 is vague and
overbroad and reiterated the Supreme Court's conclusion in
Schmuck, supra, that "[i]t is sufficient for the mailing to
_______ _____
be 'incident to an essential part of the scheme' or 'a step
in the plot.'" 55 F.3d at 569; see also Badders v. United
___ ____ _________________
States, 240 U.S. 391, 393-94 (1916). In Waymer, the
______ ______
defendant was an elected member of the Atlanta Board of
Education who failed to fully disclose his relationship with
the contractor who provided pest control services to
Atlanta's public schools. Unbeknownst to the other school
board members, the defendant received fifteen percent of all
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29
the proceeds from the contractor's contracts with the school
system.
Courts have read section 1346 to include efforts by
public officials and employees to conceal their fraudulent
acts from the public "by means of false or fraudulent
pretenses, representations, promises, or other deceptive
conduct." See McEvoy Travel, 904 F.2d at 791. For example,
___ _____________
the Fourth Circuit recently upheld the conviction of a public
official on such grounds in United States v. Bryan, 58 F.3d
______________________
933 (4th Cir. 1995). In that case, the Director of the West
Virginia Lottery orchestrated a scheme whereby he secretly
ensured that lottery contracts and contract bids were awarded
to companies with whom he had a personal relationship. The
Fourth Circuit held that section 1346 applied to the
defendant's conduct. 58 F.3d at 939-41. Similarly, United
______
States v. Alkins, 925 F.2d 541 (2d Cir. 1991), a Second
__________________
Circuit case, upheld the section 1346-based convictions of
six Department of Motor Vehicles employees because they
failed to disclose their fraudulent activities to department
officials. 925 F.2d at 549. The defendants in that case
secretly processed improperly documented applications for
driver's licenses, identification cards, and vehicle
registrations in return for monetary disbursements.
We hold that the conduct to which Grandmaison pled
guilty falls within the range of conduct Congress intended 18
-30-
30
U.S.C. 1341, 1346 to encompass and, concomitantly, rests
squarely within the heartland of section 2C1.7. Grandmaison
continued to lobby Board members on behalf of Eckman
Construction after his recusal from the SSCC and JSSBC. He
secretly delivered gratuities to Magee, Ackerman, and
Kuchinski to secure favorable votes on Eckman Construction's
bid. He distributed informational materials about Eckman
Construction to Magee and Ackerman without disclosing his
actions to other Board members. And he caused the Elm Street
Project contract to be sent to Eckman Construction via the
mail system. Though there is no evidence that Grandmaison
received direct monetary benefit from his actions, there can
be little doubt that under cases such as Waymer, Bryan, and
______ _____
Alkins he deprived the citizens of Nashua of the honest
______
services of their government under section 1346. This is not
an unusual case.
Defendant maintains that he is mainly guilty of not
revealing a conflict of interest. To be sure, his conduct
involved some element of such a violation. It does not
follow from this, however, that he should not be sentenced
pursuant to section 2C1.7, the guideline corresponding to the
mail fraud
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31
statute to which he pled guilty. First, we are convinced
that 18 U.S.C. 1341, 1346 encompasses crimes of the sort
committed by defendant. Second, even if the applicability of
section 1346 were suspect, we are not at all certain that
downward departure to the sentence prescribed by section
2C1.3 would be appropriate. This is principally because
section 2C1.3 linguistically does not apply to defendant or
his conduct; that guideline only addresses conflicts of
interests by present or former federal officers and employees
and, therefore, does not reach state or local officials such
as defendant. In the final analysis, defendant has managed
to persuade us of only one thing: that had he been a federal
employee or official, the government might have been able to
charge him with violating other statutes as well. See
___
U.S.S.G. 2C1.3 (listing statutory provisions corresponding
to that guideline). Because this argument clearly does not
merit the application of a lower sentencing range defendant
seeks, we affirm the district court's refusal to depart
downward by analogy to section 2C1.3.
V. CONCLUSION
V. CONCLUSION
For the foregoing reasons, we vacate Grandmaison's
sentence and remand for resentencing under the aberrant
behavior standard formulated in this opinion. Defendant's
appeal for downward departure on the basis of his
extraordinary offender characteristics is dismissed for lack
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32
of jurisdiction. And we affirm the district court's refusal
to depart downward by analogy to section 2C1.3 of the
Guidelines.
It is so ordered.
It is so ordered.
________________
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33
