UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1841
UNITED STATES OF AMERICA,
Appellee,
v.
FREDERICK HARDY,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge] ___________________
____________________
Before
Cyr, Boudin and Lynch,
Circuit Judges. ______________
____________________
Owen S. Walker for appellant. ______________
Ralph F. Boyd, Jr., Assistant United States Attorney, with whom ___________________
Donald K. Stern, United States Attorney, and Michael J. Pelgro, ________________ ___________________
Assistant United States Attorney, were on brief for appellee.
____________________
November 8, 1996
____________________
CYR, Circuit Judge. Frederick Hardy challenges two CYR, Circuit Judge. ______________
sentencing rulings by the district court which successively
denied him a downward adjustment for acceptance of responsibility
and imposed an upward departure following his trial and convic-
tion on three felony charges. We affirm the district court
judgment.
I I
BACKGROUND BACKGROUND __________
A. The Offense of Conviction A. The Offense of Conviction _________________________
On the evening of April 18, 1991, multiple gunshots
rang out on the grounds of the Lenox Street Housing Development
in Boston. Five Boston police officers in plain clothes, members
of the Anti-gang Violence Unit, were on routine patrol at the
time, and saw Raymond Moreno, Stephen Fernandes, and appellant
Hardy run from the area where the shots had been fired. The
officers gave chase on foot. Just before submitting to arrest,
Moreno handed a long, dark, cylindrical object to Hardy, who kept
on running through the residential neighborhood adjacent to the
housing development. Shortly after the officers overtook Hardy,
but before he could be subjected to arrest, he tossed a loaded
Browning .32 caliber semi-automatic pistol onto the ground.
Following Hardy's arrest, the officers retraced his
likely route from the shooting scene to the arrest scene and
found a fully-loaded, sawed-off, twelve-gauge, double-barrel
shotgun planted barrel-up in the backyard garden of a residence
occupied by a family with three young children. Nearby,
2
Fernandes was arrested while in possession of an unloaded Helwan
9 millimeter semi-automatic pistol, later confirmed to be the
firearm discharged at the Lenox Street Housing Development site
where the police first observed Hardy and two associates. Later,
Hardy falsely denied knowing either Moreno or Fernandes, claimed
to be living with his mother, and gave a false home address.
B. The Trial and First Appeal B. The Trial and First Appeal __________________________
Hardy was charged with being a felon in unlawful
possession of a firearm, 18 U.S.C. 922(g)(1), as well as
unlawful possession of ammunition, id., and with possession of an ___
unregistered firearm, 26 U.S.C. 5861(d). As Hardy's extensive
criminal record included three violent felonies and one serious
drug offense since 1985, the government gave notice that it
intended to seek the mandatory minimum fifteen-year prison
sentence authorized under the Armed Career Criminal Act (ACCA),
18 U.S.C. 924(e); see also U.S.S.G. 4B1.4. Following trial, ___ ____
Hardy was convicted and sentenced to 262 months in prison.
While Hardy's first appeal was pending, this court held
that a criminal defendant exposed to an ACCA sentencing enhance-
ment may challenge any predicate state court conviction during
his federal sentencing proceeding even though his state court
remedies have never been exhausted. United States v. Paleo, 967 _____________ _____
F.2d 7, 11-12 (1st Cir. 1992). We accordingly remanded Hardy's
case to the district court for reconsideration in light of Paleo. _____
C. The First Remand and Second Appeal C. The First Remand and Second Appeal __________________________________
3
On remand, the district court again imposed a 262-month
prison term, after rejecting Hardy's claim that his predicate
state court convictions were invalid. United States v. Hardy, _____________ _____
829 F. Supp. 478 (D. Mass. 1993). Hardy again appealed. Without
reaching the sentencing claims, this court vacated Hardy's
federal convictions on the ground that the prosecution had made
improper comments during closing argument at trial. United ______
States v. Hardy, 37 F.3d 753 (1st Cir. 1994). ______ _____
D. The Second Remand and Sentencing D. The Second Remand and Sentencing ________________________________
During the second remand, Hardy obtained a continuance
and successfully challenged two of the predicate state court
convictions. As he was no longer subject to the ACCA mandatory
minimum sentence, he then pled guilty to all three federal
charges.
At the resentencing, the district court began its
guideline calculation with a base offense level (BOL) of 18, see ___
U.S.S.G. 2K2.1(a)(1) (Unlawful Receipt, Possession, or Trans-
portation of Firearms or Ammunition) (1990), then adopted a
revised presentence report (PSR) recommendation that Hardy not
receive a two-level downward adjustment for acceptance of respon-
sibility, see id. 3E1.1.1 The court set Hardy's criminal ___ ___
history category (CHC) at III (6 points), by counting four
____________________
1Unless otherwise indicated, we cite to the November 1990
guidelines in effect on the date of the offense of conviction.
4
unvacated prior convictions at one point each, see id. 4A1.1,2 ___ ___
and adding two points because Hardy was on probation at the time
the offense of conviction was committed. The resulting guideline
sentencing range (GSR) for Level 18, CHC III, was 33 to 41
months.
The district court decided to make an upward departure
due to Hardy's "ten-year history of grievous antisocial conduct,"
citing eight reasons: (1) CHC III did not adequately reflect
either the seriousness of Hardy's past criminal conduct or the
likelihood of recidivism; (2) only one month before the offense
of conviction, Hardy had been arrested and charged with another
"very serious offense" his and Moreno's shooting and attempted
murder of a fourteen-year-old boy, Kenneth Walker, at the same
Lenox Street Housing Development; (3) Hardy was on bail in the
Walker case at the time he committed the offense of conviction;
(4) Hardy had been arrested and charged with four violent felo-
nies between 1985 and 1990, including kidnapping and assault and
battery, which were not taken into account in the CHC III calcu-
lation since the state court charges had been dismissed; (5)
Hardy's two prior state court convictions for assault and battery
against his girlfriend and another woman had been vacated, not
because Hardy was not responsible for the criminal conduct
____________________
2The four state-court convictions counted by the district
court were: (1) a 1985 conviction for cocaine possession; (2) a
1988 conviction for assault and battery on a police officer; (3)
a 1990 conviction for drug possession; and (4) a 1990 conviction
for possession with intent to distribute cocaine and heroin at
Lenox Street.
5
underlying the convictions but due to procedural infirmities at
trial;3 (6) "the [two] weapons used . . . in this federal case [a
sawed-off shotgun and semi-automatic pistol] were particularly
dangerous weapons"; (7) officers of the Anti-gang Violence Unit
attested that the offense of conviction was part of a long series
of violent drug-related offenses in the same neighborhood,
committed by street gangs like the Columbia Point Dogs, of which
Hardy, Moreno, and Fernandes were known members; and (8) the
offense of conviction occurred in an economically depressed
neighborhood "where very vulnerable people live."
The district court determined that even a full "hori-
zontal" departure from Level 18, CHC III (33-41 months), to Level
18, CHC VI (57-71 months), would be inadequate to reflect these
eight factors. Accordingly, the court determined upon a "verti-
cal" upward departure as well, from Level 18, CHC VI (57-71
months) to Level 24, CHC VI (100-125 months). The court gauged
its vertical departure through reference to the 121-151 month
(Level 32, CHC I) GSR which would have been applicable to Hardy
under the then-current (i.e., November 1994) guidelines.4 ____
____________________
3According to the revised PSR, the 1985 assault and battery
charges were based on evidence that Hardy, in a jealous rage,
kicked his girlfriend in the head and upper body then punched her
in the head before throwing her over a third-floor balcony. In
the subsequent incident, he assaulted the same girlfriend and her
sister, beating both women about their heads and faces. Hardy's
girlfriend was hospitalized on both occasions.
4The court arrived at its adjusted BOL of 32 by increasing
the BOL (26) six levels based on "various offense characteris-
tics." Although the court did not cite to the particular guide-
line sections, the government concedes that the relevant guide-
lines were U.S.S.G. 2K2.1(b)(4) (1994) (use or possession of
6
Ultimately, the court settled upon the 120-month prison sentence
from which Hardy now appeals.
II II
DISCUSSION DISCUSSION __________
____________________
firearm with an obliterated serial number) and 2K2.1(b)(5)
(1994) (use or possession of firearm in connection with another
felony offense [i.e., ongoing drug distribution]). ____
7
A. Acceptance of Responsibility A. Acceptance of Responsibility ____________________________
The district court denied a two-level downward adjust-
ment for acceptance of responsibility, see U.S.S.G. 3E1.1, for ___
the following reasons:
There was in fact a trial of the offense in
this case four or so years ago, [during
which] the defendant denied knowing the code-
fendant in that case, and . . . that . . .
does bespeak . . . failure to accept respon-
sibility, and then there was an appeal . . .
during which there still was no acceptance of
responsibility, and . . . I think I should
consider the fact . . . that a plea of guilty
in this case did not occur . . . until [after
Hardy's two predicate convictions had been
set aside in state court.] I don't criticize
counsel for undertaking that because it makes
some difference to the kinds of sentence that
may be ultimately imposed in this case, but
it strikes me that none of this suggests that
there has been a sincere acceptance of re-
sponsibility.
Hardy asserts two challenges to the district court ruling.5
First, while acknowledging that he must establish any
entitlement to an adjustment for acceptance of responsibility,
see United States v. Gonzalez, 12 F.3d 298, 399 (1st Cir. 1993), ___ _____________ ________
Hardy argues that section 3E1.1 creates a rebuttable presumption
that a defendant who has pled guilty has carried his burden of
proof, even though the record discloses no affirmative manifesta-
tions of remorse. U.S.S.G. 3E1.1, comment. (n.3) (1994).
____________________
5Sentencing Guidelines interpretations are reviewed de novo, __ ____
United States v. Bennett, 60 F.3d 902, 904 (1st Cir. 1995), ______________ _______
whereas subsidiary factual findings, including the ultimate
determination whether a defendant has sincerely "accepted respon-
sibility" for the charged offense, are reviewed only for clear
error, United States v. Crass, 50 F.3d 81, 83 (1st Cir. 1995). _____________ _____
8
This contention is severely undercut by the pertinent
guideline commentary, however, which plainly provides that
"[e]ntry of a plea of guilty prior to the commencement of trial _____ __ _____
combined with truthful admission of involvement in the offense ________ ____ ________ _________
and related conduct will constitute significant evidence of ____ __________ ___________ ________
acceptance of responsibility." U.S.S.G. 3E1.1, comment. (n.3)
(emphasis added). The revised PSR discloses that Hardy, despite
ample time and opportunity, has never truthfully admitted the _____
facts underlying the offense of conviction, let alone subjective-
ly manifested "candor and authentic remorse." See United States ___ ______________
v. Wheelwright, 918 F.2d 226, 229 (1st Cir. 1990). ___________
Moreover, even assuming Hardy had truthfully admitted
the relevant facts, nothing in the commentary upon which he
relies remotely indicates that a guilty plea, even combined with
a truthful admission, see U.S.S.G. 3E1.1, comment. (n.3), gives ___
rise to a rebuttable presumption that a two-level downward
adjustment for acceptance of responsibility will follow. Indeed,
Hardy's prolonged reticence aside, the commentary explicitly
states that even the "significant evidence of acceptance of
responsibility" generated by "a plea of guilty prior to the
commencement of trial combined with truthful admission," id., ___
"may be outweighed by conduct of the defendant that is inconsis-
tent with such acceptance of responsibility. A defendant who _ _________ ___
enters a guilty plea is not entitled to an adjustment under this ______ _ ______ ____ __ ___ ________ __ __ __________ _____ ____
section as a matter of right." Id. (1994) (emphasis added); see _______ __ _ ______ __ _____ ___ ___
U.S.S.G. 3E1.1(c) & comment. (n.3) (1990).
9
Rather, the sentencing court must engage in a fact-
intensive determination based on all evidence material to the
defendant's acceptance of responsibility. We in turn accord
great deference to the sentencing court's determination. See id. ___ ___
comment. (n.5); United States v. Royer, 895 F.2d 28, 29 (1st Cir. _____________ _____
1990) ("Credibility and demeanor play a crucial role in determin-
ing whether a person is genuinely contrite," and "the sentencing
judge has the unique opportunity of observing the defendant . . .
and evaluating acceptance of responsibility in a live context.").
Thus, nothing can come from Hardy's "rebuttable presumption"
construct, both because it is legally unsound and because Hardy
lied to the police and to a magistrate judge regarding his lack
of prior association with codefendants Moreno and Fernandes, and
gave a false home address which has never been recanted.6
____________________
6As a corollary argument, Hardy urges a third remand for
resentencing because he was unfairly surprised by the sentencing
court's refusal to follow "accepted" practice in the United
States District Court for the District of Massachusetts by
allowing an automatic 3E1.1 reduction to any defendant who
pleads guilty. Even assuming such a practice, which the govern-
ment disputes, Hardy's reliance upon it would be objectively
unreasonable given the unequivocal guideline provision that "[a]
defendant who enters a guilty plea is not entitled to a sentenc-
ing reduction under this section as a matter of right," U.S.S.G.
3E1.1(c), not to mention the decisional law in this circuit,
see United States v. Garcia, 905 F.2d 557, 561 (1st Cir.) ("Down- ___ _____________ ______
ward adjustments for acceptance of responsibility are not auto-
matically conferred upon every accused who pleads guilty."),
cert. denied, 498 U.S. 986 (1990). Since 3E1.1 makes clear _____ ______
that the district court must assess each defendant's protesta-
tions of remorse, it would be inconsistent with its spirit to
permit defendants to withhold manifestations of remorse simply
because the district court has not explicitly invited them. See ___
Royer, 895 F.2d at 30 (noting that 3E1.1 is not designed to _____
encourage "empty platitudes").
10
Second, Hardy contends that he reasonably refrained
from pleading guilty until after he had returned to state court
to set aside two of his predicate convictions, since the govern-
ment's decision to invoke the ACCA otherwise would have exposed
him to a possible life sentence and at least a fifteen-year
sentence, instead of a ten-year maximum. Consequently, he
argues, the district court improperly relied on the delayed
guilty plea as a basis for finding that he had not accepted
responsibility for his crimes.
It is far from clear that the statement made by the
district court was intended to convey the message Hardy suggests.
Viewed in context, the statement may well have been intended
merely as a narrative of the prolonged procedural travel of this
case, during which Hardy never uttered a word remotely resembling
remorse. In all events, assuming the statement were to be
interpreted as Hardy suggests, we conclude that any resulting
error was harmless in that it did not affect Hardy's substantial
rights, see Fed. R. Crim. P. 52(a); United States v. Curran, 926 ___ _____________ ______
F.2d 59, 62 (1st Cir. 1991), since the alternative basis for
denying the requested 3E1.1 reduction was entirely valid.7
____________________
7See United States v. Nunez-Rodriquez, 92 F.3d 14, 19 (1st ___ _____________ _______________
Cir. 1996) (noting that a sentencing decision founded on an
inappropriate factor may be affirmed if "excision of the improper
ground does not obscure or defeat the reasoning of the district
court," and we are "left, on the record as a whole, with the
definite and firm conviction that removal of the inappropriate
ground would not be likely to alter the district court's view of
the sentence rightfully to be imposed").
11
After his arrest, Hardy lied when he told the police he
had not known codefendant Moreno prior to April 18, 1991, whereas
in fact Hardy and Moreno had shot Kenneth Walker in March 1991.
In addition, the record reveals that Hardy, after his arrest,
lied about not having possessed a firearm, and gave police a
false home address. Undeterred, Hardy argues that a false
statement to the police immediately after arrest as distin-
guished from a misrepresentation to the probation office or the
court after criminal proceedings have been commenced should
not be treated as a failure to accept responsibility. We need
venture no opinion on this matter, since Hardy cannot come within
the proposed rule in any event.
Rather, the revised PSR indicates that though Hardy
first provided the false home address to the police, thereafter
he repeated it to the United States Pretrial Services Department
and a magistrate judge. Moreover, Hardy lied about possessing
and concealing the dangerous firearm (sawed off shotgun) rather
than assisting in its recovery, and has never recanted. Finally,
he attempted to evade and resist arrest rather than surrender
voluntarily. By contrast, the applicable guideline commentary
clearly identifies the kinds of conduct considered indicia of _____
acceptance of responsibility: a "voluntary and truthful admis-
sion to authorities of involvement in the offense," a "voluntary
surrender to authorities promptly after commission of the of-
fense," and "voluntary assistance to authorities in the recovery
of the fruits and instrumentalities of the offense." See ___
12
U.S.S.G. 3E1.1, comment. (n.1(c)-(e)).
We emphasize that it was especially appropriate in
these circumstances for the district court to consider "the
timeliness of the defendant's conduct in manifesting . . .
acceptance of responsibility," see U.S.S.G. 3E1.1, comment. ___
(n.1(g)), particularly since Hardy failed even to request a
continuance to challenge the predicate state court convictions
before his first trial. By ignoring this plain option, and ______ ___ _____ _____
failing to explain, Hardy put the government to the needless
expense of trying him. See United States v. De Leon Ruiz, 47 ___ _____________ ____________
F.3d 452, 455 (1st Cir. 1995) (citing U.S.S.G. 3E1.1, comment.
(n.2) (1994)). Finally, the sentencing court assiduously
searched the record and observed Hardy's in-court demeanor for
any indication that he was truly remorseful. Instead, it found
only his unelucidated guilty plea, with no mention of remorse,
and an extensive record of persisting criminal conduct "inconsis-
tent" with genuine remorse. We find no error.
B. Upward Departure B. Upward Departure ________________
A decision to depart beyond the prescribed GSR is
reviewed for "abuse of discretion" only, see Koon v. United ___ ____ ______
States, U.S. , , 116 S. Ct. 2035, 2046-47 (1996), and ______ ____ ___ ___
guided by three principal inquiries: (1) whether the asserted
grounds for departure were permissible under the guidelines; (2)
if so, whether the record evidence adequately demonstrates the
required criteria; and (3) whether the degree of departure was
reasonable. See United States v. DeMasi, 40 F.3d 1306, 1322 (1st ___ _____________ ______
13
Cir. 1994), cert. denied, 115 S. Ct. 947 (1995). Hardy assigns _____ ______
nine reasons for overturning the upward departure.
1. Validity of the Departure Criteria 1. Validity of the Departure Criteria __________________________________
The guidelines prescribe two types of departure mecha-
nisms. Section 4A1.3 focuses primarily on past criminal conduct,
and permits an upward departure if the defendant's pre-departure
CHC, see U.S.S.G. 4A1.1, "does not adequately reflect the ___
seriousness of [his] past criminal conduct or the likelihood that
the defendant will commit other crimes." Id. 4A1.3. Normally, ___
these section 4A1.3 departures are "guided" and horizontal. That
is, within the defendant's total offense level the court moves
horizontally across the sentencing table through successively
higher CHCs until it reaches an appropriate, or "reflective"
sentencing range. Only in extreme cases those involving
egregious past criminal conduct may a section 4A1.3 departure
exceed the GSR prescribed under CHC VI. See United States v. ___ ______________
Mendez-Colon, 15 F.3d 188, 190 (1st Cir. 1994).8 ____________
Section 5K2.0, on the other hand, permits an upward
departure if the district court finds "an aggravating . . .
circumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the
____________________
8Under U.S.S.G. 4A1.3 (November 1990), the sentencing
court was permitted to depart beyond CHC VI to any appropriate
higher sentence under 4A1.3 ("unguided" sentence), whereas
under the current version departures beyond CHC VI are "guided";
that is, beyond CHC VI, sentencing courts are to move down the
CHC VI column to successively increasing offense levels until an
appropriate sentencing range is reached. United States v. Emery, _____________ _____
991 F.2d 907, 913 n.9 (1st Cir. 1993).
14
guidelines." U.S.S.G. 5K2.0 (quoting 18 U.S.C. 3553(b)).
The section 5K2.0 departure mechanism focuses primarily on
"unusual" attributes of the offense of conviction, rather than __________ __ ___ _______ __ __________
any underrepresentation of past criminal conduct in the
defendant's CHC. Section 5K2.0 departures are "unguided," and
functionally "vertical," meaning that the sentencing court need
not restrict itself to considering successively higher CHC ranges
along the "horizontal" axis in the sentencing table, but may
select whatever sentence appropriately reflects the "unusual"
circumstances in the case. See generally Bruce M. Selya & ___ _________
Matthew R. Kipp, An Examination of Emerging Departure Jurispru- _______________________________________________
dence Under the Federal Sentencing Guidelines, 67 Notre Dame L. ______________________________________________
Rev. 1, 39-40 (1991).
Hardy first argues that the district court committed an
error of law by relying on the number and dangerousness of the
weapons used by him and his two associates in the Lenox Street
shooting spree as grounds for an upward departure. He points out
that the November 1990 guidelines expressly constitute the number
of firearms a specific offense characteristic under section 2K2.2
(Unlawful Trafficking), but not under section 2K2.1 (Unlawful
Possession), thereby implicitly rejecting the number of firearms
as a ground for departure under section 2K2.1. See United States ___ _____________
v. Enriquez-Munoz, 906 F.2d 1356, 1361 (9th Cir. 1990). But see ______________ ___ ___
U.S.S.G. 2K2.1 (1994) (amended version, designating number of
firearms as specific offense characteristic). Hardy also notes
that section 2K2.1(a)(1) and 26 U.S.C. 5861 already provide a
15
twelve-level sentencing enhancement for the increased risk
inherent in possessing some types of firearms (e.g., Hardy's ____
sawed-off shotgun), see U.S.S.G. 2K2.1(a), thereby suggesting ___
that the Commission meant to foreclose departures based on the
"dangerousness" of all other weapon types (e.g., Hardy's semi- ____
automatic pistol).
Notwithstanding the explicit consideration given to the
number of firearms in U.S.S.G. 2K2.2, a departure criterion
cannot be deemed impermissible in all circumstances unless
categorically foreclosed by the Commission. See Koon, 116 S. Ct. ___ ____
at 2051. The Commission "d[id] not intend to limit the kinds of
factors, whether or not mentioned anywhere else in the guide- _______ __ ___ _________ ________ ____ __ ___ ______
lines, that could constitute grounds for departure in an unusual _____
case." U.S.S.G. Ch. 1, Pt. A, intro. comment.(4)(b) (emphasis
added).
Hardy pled guilty to certain firearm possession charg- __________
es. The reference to the number of firearms was made by the
district court in the context of its discussion of the heightened
dangerousness associated with the manner in which Hardy and his
cohorts not only possessed but used their firearms. See infra ____ ___ _____
Section II.B.2(b); cf. Enriquez-Munoz, 906 F.2d at 1361 (reject- ___ ______________
ing departure based on number of weapons and defendant's intent
to cause "greater harm," where sentencing court made no finding
of such intent, and purchase/sale of multiple weapons created no
demonstrably greater harm). The use and/or indiscriminate
disposal of multiple weapons which took place in this case surely
16
elevated their dangerousness well above the level associated with
the simple possession of a single firearm.
17
Moreover, rather than being categorically forbidden as
a departure ground under section 2K2.1, the heightened dangerous-
ness occasioned by the usage, and indiscriminate abandonment, of
the firearms involved here is encouraged as a departure ground in
appropriate circumstances:
If a weapon or dangerous instrumentality was used ____
or possessed in the commission of the offense the __ _________
court may increase the sentence above the autho-
rized guideline range. The extent of the increase
ordinarily should depend on the dangerousness of
the weapon, the manner in which it is used, and
the extent to which it endangered others. The ___
discharge of a firearm might warrant a substantial _________ __ _ _______
sentence increase.
See U.S.S.G. 5K2.6 (emphasis added).9 ___
Finally, the fact that the Commission decided against
making "weapon type" a specific offense characteristic under
section 2K2.1 in no sense indicates that it intended to preclude
a judicial determination that certain types of weapons are
inherently more dangerous than others, but simply that possession
of a particular type of weapon, in and of itself, is not invari-
ably indicative of the defendant's intent. For example, the
guidelines permit a downward adjustment for the illegal posses-
sion of a firearm intended for recreational use only. See ___
U.S.S.G. 2K2.1, comment. (n.2) ("[S]ome rifles or shotguns may
be possessed for criminal purposes, while some handguns may be
____________________
9Even though the disjunctive employed in 5K2.6 (i.e., ____
"used or possessed") might be read to apply to offenses of
conviction which would not contemplate that the defendant have
possessed or used any firearm at all, its plain language would
encompass a firearm possession offense where defendant not only
passively possessed the firearm, but also used (i.e., discharged ____
or recklessly discarded) it in an exceptionally dangerous manner.
18
suitable for recreation. Therefore, the guideline is not based
upon the type of weapon."); see also id. 2K2.1(b)(1) (citing ___ ____ ___
recreational intent as mitigating sentencing factor).
Thus, the omission of a specific offense characteristic
relating to "weapon type" falls far short of a categorical
prohibition. Accordingly, to the extent a sentencing court
supportably finds that a defendant's choice of weapons, and the ___ ___
actual manner of its use, increased the danger to "unusual" ______ ______ __ ___ ___
levels, an upward departure under U.S.S.G. 5K2.6 would be
permissible. See U.S.S.G. Ch. 1, Pt. A, intro. comment.(4)(b); ___
see also, e.g., United States v. LeBon, 800 F. Supp. 1012, 1017 ___ ____ ____ ______________ _____
(D. Mass. 1992) (departure warranted for defendant's use of
semiautomatic weapons).
2. Existence Vel Non of Departure Criteria 2. Existence Vel Non of Departure Criteria _______________________________________
We next inquire whether the record facts adequately
support each departure criterion relied upon by the district
court. DeMasi, 40 F.3d at 1322; see supra Section I.D. Hardy ______ ___ _____
directly challenges the sentencing court's reliance on: (i) the
determination that CHC III would not adequately reflect either
the seriousness of Hardy's criminal history or the likelihood of
recidivism, see U.S.S.G. 4A1.3; and (ii) three "unusual" ___
offense-related characteristics of the Lenox Street shooting
incident, see id. 5K2.0, specifically that Hardy's fire- ___ ___
arm/ammunition possession on April 18, 1991, facilitated his
ongoing participation in gang-related activities; the Lenox
Street shooting occurred in a crowded, low-income neighborhood
19
particularly vulnerable to crime; and the unusual level of risk
created by the number and types of firearms, as well as the
manner of their use in the Lenox Street shooting.
Substantial deference is due a sentencing court's
assessment that the cumulative circumstances are unusual enough
to implicate a departure criterion, thereby removing the case
from the "heartland":
[T]he district court must make a refined assess-
ment of the many facts bearing on the outcome,
informed by its vantage point and day-to-day expe-
rience in criminal sentencing. Whether a given
factor is present to a degree not adequately con-
sidered by the Commission, or whether a discour-
aged factor nonetheless justifies departure be-
cause it is present in some unusual or exceptional
way, are matters determined in large part by com-
parison with the facts of other Guidelines cases.
District courts have an institutional advantage
over appellate courts in making these sorts of
determinations, especially as they see so many
more Guidelines cases than appellate courts do. .
. . "To ignore the district court's special compe-
tence about the 'ordinariness' or 'unusualness'
of a particular case would risk depriving the
Sentencing Commission of an important source of
information, namely, the reactions of the trial
judge to the fact-specific circumstances of the
case . . . ."
Koon, 116 S. Ct. at 2046-47 (quoting United States v. Rivera, 994 ____ _____________ ______
F.2d 942, 951 (1st Cir. 1993) (Breyer, C.J.)) (other citations
omitted).
a) Uncounted Past Criminal Conduct ( 4A1.3) a) Uncounted Past Criminal Conduct ( 4A1.3) _________________________________________
Hardy challenges the district court's finding, by a
preponderance of the evidence, that he committed the criminal
conduct underlying the two assault and battery convictions
vacated by the state court following his first trial. See supra ___ _____
20
note 3. He uninformatively contends that the only reason he did
not claim actual innocence of these charges when he returned to
state court was that his motions to vacate focused exclusively on
the procedural infirmities at trial. Second, he contends that
the district court's recidivism ruling is not supported by the
record. He points out that he is no longer a young adult (i.e., ____
in his early twenties or younger), thus not within the statisti-
cal class of criminal defendants most prone to recidivism, see ___
U.S.S.G. 4A1.3, backg'd; United States v. Fahm, 13 F.3d 447, ______________ ____
450 (1st Cir. 1994), and further that his street gang disbanded
after repeated federal prosecutions. These arguments fundamen-
tally misapprehend the departure rationale relied on by the
district court.
Section 4A1.3 specifically encourages upward departures
based on "reliable information" that a defendant previously
engaged in "prior similar adult criminal conduct not resulting in
a conviction," U.S.S.G. 4A1.3(e),10 which plainly encompasses
charged conduct underlying vacated convictions. See, e.g., ___ ____
____________________
10Without citation to authority or developed argumentation,
Hardy contends that the quoted language should only apply to
charges no longer pending against a defendant (i.e., not subject ___
to possible retrial), and that a defendant need object to a PSR
description of "prior similar adult criminal conduct not result-
ing in a conviction" only if the PSR states that the defendant
engaged in the criminal activity, and not merely that the police
so reported. We have been no more successful than Hardy in
finding support for either of these conclusory contentions. See ___
United States v. Zannino, 895 F.2d 1, 17 (1st Cir.) (invoking _____________ _______
"the settled appellate rule that issues adverted to in a perfunc-
tory manner, unaccompanied by some effort at developed argumenta-
tion, are deemed waived"), cert. denied, 494 U.S. 1082 (1990). _____ ______
Nor do we discern a sound basis in reason or common sense.
21
United States v. Guthrie, 931 F.2d 564, 572-73 (9th Cir. 1991) ______________ _______
(noting that vacated convictions may be considered under
4A1.3); accord, e.g., Fahm, 13 F.3d at 451 n.3 (affirming use of ______ ____ ____
uncharged and unadjudicated criminal conduct as bases for upward
departures). As the trier of fact at sentencing, therefore, the
district court was permitted to credit reliable evidence that
Hardy committed the criminal conduct underlying the two assault-
and-battery convictions vacated during these proceedings, see ___
United States v. Figaro, 935 F.2d 4, 8 (1st Cir. 1991) (sentenc- _____________ ______
ing court "'enjoys wide discretion in determining both the
relevance and reliability of sentencing information'") (citation
omitted). The unchallenged statement in the revised PSR that
Hardy kicked his girlfriend in the head and upper body with his
shod foot, punched her in the head, and threw her over a third-
floor balcony, see supra note 3, afforded a competent basis for ___ _____
the district court's finding. Whether or not Hardy should have
asserted his actual innocence upon returning to state court, he
concedes that he has never denied or objected to the description
in the revised PSR of the two violent assaults underlying the
vacated convictions, see United States v. Rosales, 19 F.3d 763, ___ _____________ _______
770 (1st Cir. 1994) (court may credit, as true and accurate,
PSR's unchallenged description of past criminal conduct); Figaro, ______
935 F.2d at 8. Nor does Hardy allude on appeal to any exculpato-
ry evidence relating to the vacated convictions.
The second claim fares no better, for it would have us
disregard not only the two vacated convictions but also the
22
cumulative evidence upon which the district court relied in
determining that Level 18, CHC III, underrepresented the serious-
ness of Hardy's past conduct and the likelihood of recidivism.
Between 1987 and 1989, Hardy was arrested four times for assaults
and/or kidnapping, involving violent attacks in which he various-
ly used his hands and feet, a rock, a stick, a bottle, and a
knife against his victims. See U.S.S.G. 4A1.3(e). At the time ___
of the offense of conviction, Hardy not only was on probation in
connection with a prior drug conviction, but also on bail pending
charges (assault with intent to murder and firearms possession)
in connection with his and Moreno's shooting of Kenneth Walker.
See id. 4A1.3 (departure factors may include whether offense of ___ ___
conviction was committed "while on bail or pretrial release for
another serious offense"); United States v. Diaz-Martinez, 71 _____________ _____________
F.3d 946, 952 (1st Cir. 1995).11 The Walker shooting occurred in
the Lenox Street Housing Development a mere month prior to the
offense of conviction. See Figaro, 935 F.2d at 7 ("[R]ecency of ___ ______
a prior offense may be considered an indicator of increased
likelihood of recidivism, exacerbating the seriousness of a
defendant's criminal history."). Given his recent, persistent,
and escalating record of violent behavior, see United States v. ___ _____________
Doe, 18 F.3d 41, 47 (1st Cir. 1994) (noting that departure was ___
warranted where defendant's past criminal conduct demonstrated
"significantly unusual penchant for serious criminality"), we
____________________
11As the government aptly notes, Hardy was under some sort
of court supervision at the time of almost all his prior arrests.
23
find no abuse of discretion in the district court's decision that
an upward departure was warranted because Hardy's pre-departure
CHC underrepresented the seriousness of his past criminal conduct
and the likelihood of recidivism. See Koon, 116 S. Ct. at 2046- ___ ____
47 (holding that district court is entitled to "substantial
deference" in its determination that particular facts of case
implicate a departure factor).
b) Offense-Related Characteristics ( 5K2.0) b) Offense-Related Characteristics ( 5K2.0) _________________________________________
Similarly, we find little merit in the claim that the
sentencing court abused its discretion in finding three "unusual"
offense-related characteristics cumulatively adequate to remove
Hardy's case from the "heartland" of section 2K2.1 cases. Given
their recognized utility and ubiquity in a very broad spectrum of
criminal activities, firearms presumably may be possessed in
circumstances posing widely divergent degrees of dangerousness.
Accordingly, it is not apparent to us that the Sentencing Commis-
sion attempted, let alone managed, to devise section 2K2.1 with a
view to the extraordinary dangers posed by gang members indis-
criminately shooting and discarding particularly dangerous
firearms in crowded inner-city residential areas.12
____________________
12Hardy argues that street gangs are such a "fact of life"
in the inner city that the Commission could not but have antici-
pated that a large percentage of criminal defendants would be
street gang members. Of course, the focus of the "heartland"
inquiry is not nearly so broad. Instead, sentencing courts are
to inquire whether one reasonably would expect an unusual number
of defendants convicted of firearm/ammunition possession to be
gang members. See, e.g., Koon, 116 S. Ct. at 2052 (rejecting ___ ____ ____
"career loss" as downward departure criterion for purposes of
2H1.4, since it is not "unusual" for many public officials
convicted of civil rights violations to lose their jobs).
24
Hardy and his associates repeatedly discharged a semi-
automatic weapon at nighttime within a crowded residential
housing development and, while fleeing from the scene to evade
arrest, Hardy planted a loaded sawed-off shotgun barrel-up in the _________
backyard of a residence where children lived and played. Without
deciding whether it would suffice as an independent ground for ___________
departure, we think the district court, in these egregious
circumstances, did not abuse its discretion by concluding that
crowded, low-income, inner-city neighborhoods are likely as a
rule to be more vulnerable to the hazards posed by such reckless
and indiscriminate criminal uses of firearms.
Lastly, the record includes affidavits from law en-
forcement officers describing Hardy's, and his associates',
lengthy affiliation with the Columbia Point Dogs, a Boston street
gang with a conspicuous history of inter-gang violence and
illicit drug distribution in the Lenox Street area. The record
further supports the conclusion that on April 18, 1991, Hardy and
his associates possessed the semi-automatic weapons and sawed-off
shotgun for the purpose of facilitating their gang's ongoing
terrorization of the Lenox Street neighborhood in furtherance of
its drug distribution operations. See, e.g., United States v. ___ ____ ______________
Sweeting, 933 F.3d 962, 966-67 (11th Cir. 1991) (affirming ________
defendant's ongoing connection to street gang as appropriate
ground for departure); accord United States v. Thomas, 906 F.2d ______ _____________ ______
323, 328 (7th Cir. 1990). Accordingly, we find no manifest abuse
of discretion by the district court. See Koon, 116 S. Ct. at ___ ____
25
2046-47.
3. Reasonableness of Degree of Departure 3. Reasonableness of Degree of Departure _____________________________________
Finally, Hardy argues that the section 4A1.3 departure
was unreasonable in degree as a matter of law, because the
district court proceeded directly from Level 18, CHC III, to
Level 18, CHC VI, without either considering or explaining why
the sentencing range prescribed at CHC IV or CHC V was inadequate
to reflect the seriousness of his past conduct or the likelihood
of recidivism. See United States v. Tropiano, 50 F.3d 157, 162 ___ _____________ ________
(2d Cir. 1995); supra Section II.B.1 (contrasting "unguided" and _____
"guided" departures). He further argues that section 4A1.3
rarely permits a sentencing court to depart beyond the sentencing
range prescribed by CHC VI based on an "egregious" past criminal
record, and, as such, it constitutes a "discouraged" ground for
departure.
We need not reach either of these arguments, since the
departure decision was not founded on section 4A1.3 alone, cf., ___
e.g., Fahm, 13 F.3d at 450 & n.2 (involving departure based ____ ____
exclusively on 4A1.3 criteria), but on both sections 4A1.3 and
5K2.0. See United States v. Aymelek, 926 F.2d 64, 69-70 (1st ___ _____________ _______
Cir. 1991) (noting that 5K2.0 and 4A1.3 need not be an "'ei-
ther/or' proposition," and that both may be used to support a
single departure decision). The district court relied in part on
some offense-related attributes (e.g., number and dangerousness ____
of weapons) independently sufficient to justify an unguided
vertical departure under section 5K2.0. In determining such
26
"mixed" departures, no useful purpose is served by insisting that
the sentencing court adhere to all section 4A1.3 formalities,
only to countenance its "unguided" discretion to make an "appro-
priate" non-horizontal departure under section 5K2.0. See ___
Figaro, 935 F.2d at 8-9 (rejecting "leap-frogging" argument in ______
"mixed" 4A1.3-5K2.0 case).
Finally, Hardy's protestations notwithstanding, we
cannot conclude that the degree of departure was unreasonable.
See DeMasi, 40 F.3d at 1322. A sentencing court is not required ___ ______
to "dissect its departure decision, explaining in mathematical or
pseudo-mathematical terms each microscopic choice made." United ______
States v. Rostoff, 53 F.3d 398, 408 (1st Cir. 1995). Similarly, ______ _______
the reasonableness vel non of the degree of departure need "not ___ ___
[] be determined by rigid adherence to a particular mechanistic
formula, but by an evaluation of 'the overall aggregate of known
circumstances.'" Figaro, 935 F.2d at 9 n.2 (citations omitted). ______
While the departure in this case is indeed substantial (300%), we
have affirmed larger ones. See Rostoff, 53 F.2d at 411 (collect- ___ _______
ing cases affirming upward departures ranging from 165 to 380
percent). Further, the district court "checked" the degree of
its departure by calculating the hypothetical sentence Hardy
would have received had he been sentenced under the November 1994
guidelines (121-151 months), on the theory that the Commission
had since incorporated many of the offense-related characteris-
tics that formed the bases for the district court's decision to
27
depart in this case.13 Given Hardy's persistent ten-year history
of violent anti-social behavior, as well as the dangerousness of
his conduct on April 18, 1991, in possessing and abandoning a
particularly dangerous firearm in a residential neighborhood, we
cannot say that the degree of the departure imposed by the
district court was not "appropriate" in the circumstances.
III III
CONCLUSION CONCLUSION __________
For the foregoing reasons, the district court judgment
is affirmed. ________
____________________
13Hardy argues that the district court erred in this regard.
The government concedes that the court incorrectly enhanced the
hypothetical offense level two levels by relying on the fact that
one of Hardy's weapons had an obliterated serial number. Thus,
the correct hypothetical total offense level should have been 30,
not 32. The error was harmless, however, since the court also
assigned Hardy a CHC I, Level 32, rather than CHC III, Level 30.
Both prescribe a sentencing range of 121-151 months.
28