USCA1 Opinion

November 22, 1994 UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 93-2120
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM J. DeCOSTA,
Defendant, Appellant.
____________________
ERRATA SHEET
ERRATA SHEET

The opinion

of this court

issued on

October 7, 1994,

is her

amended as follows:
Delete the
ten

last two sentences of the first full paragraph on p

which begins with "As

pondering."

and

replace

for the .
the

. . ." and

sentences

with

ends with "is wo

the

following

sentences:
"As for the government, zeal is ordinarily to be
admired in a prosector but it can be overdone.
Accordingly, we are comforted to learn that prior
to prosecution DeCosta was offered an opportunity
to participate in the pretrial diversion program-even though for reasons not developed in the record

no agreement was ultimately reached."

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-2120
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM J. DeCOSTA,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

___________________
____________________
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
____________________

Frank P. Marchetti, by Appointment of the Court, for appellant.

__________________
Nadine Pellegrini, Assistant United States Attorney, with w
__________________
Donald K. Stern, United States Attorney, was on brief for the Uni
_______________
States.
____________________
October 7, 1994
____________________

BOUDIN,

Circuit Judge.
______________

As part

of a

postal service

"sting," postal inspectors placed an advertisement concerning

child pornography
was

in a

foolish enough

local publication.

to respond.

William DeCosta

In correspondence

with an

undercover postal inspector, DeCosta expressed an interest in

receiving such material.
the undercover

In February 1989, DeCosta mailed to

agent four photographs depicting

in sexually explicit poses.

Thereafter he was indicted.

In December 1992, DeCosta

of 18 U.S.C.

2252(a)(2)

child pornography.
connection
DeCosta

with

testimony of
district

to the plea,

DeCosta's

might

be

pleaded guilty to a violation

which relates to

Prior

the mailing

the government

release conditions)

dangerous

to

a psychologist who

judge had

young girls

children,

accepted that expert's conclusion

(in

urged

that

offering

the

had examined DeCosta.

DeCosta examined

of

by another

The

expert and

that DeCosta posed no such

danger.
The
lack

of

guideline sentence for DeCosta's offense, given his

any

criminal

imprisonment.

U.S.S.G.

utilized

the

increase

in the

problem;

all

Between the

November

history,

1989

guideline

of

hearing on August 12,

12

2G2.2 (1989).

citations
time

was

the

manual
range

below

are

to

guilty plea

18

months

(The district court

because

posed

to

subsequent

an ex post facto
_______________
the
and

1989
the

manual.)
sentencing

1993, the district court energetically

-2-2-

explored

the

treatment.

options
DeCosta

available,
himself

was

including
receiving

in-prison
out-patient

counseling at the time of the sentencing hearing.

sentencing

hearing on

August 12,

1993, the

At

the

district judge

asked the prosecutor whether the U.S. Attorney's office would

consider an alternative to

imprisonment; it appears from the

transcript that there had

been earlier, unsuccessful efforts

along this line.

The

prosecutor said that

the matter

had

been discussed in her office and that pre-trial diversion was

not agreeable to

the government.

urged imprisonment for 18

In

fact, the

prosecutor

months, the maximum period allowed

under the guidelines.

At the hearing, there was testimony from the expert
had

previously

danger

concluded

to anyone.

impose probation but

court might be

that DeCosta

DeCosta's attorney

posed

no

physical

urged the

court to

provided no explanation

empowered to do

so.

who

as to how

Counsel did advert

the
to

DeCosta's present out-patient treatment, his somewhat limited

intelligence

and the fact that he had not taken the pictures

he had mailed.
had

lost his

It was also pointed out that although DeCosta

job

as a

security

guard, he

had

found new

employment to support his family.

After

describing

treatment, his

DeCosta's

counsel said that he

tremendously" in

current

out-patient

(DeCosta) "has improved

his attitude and outlook.

DeCosta's wife,

-3-3-

said counsel, wants him home.

When defense counsel said that

the court "should look further, to see if there's some way to

give this man probation," the district court pointed out that
it

had urged counsel to help it to distinguish several cases

that appeared to limit the court's ability to depart from the

guidelines.

The court then said

treatment at the
month

minimum

replied:

that DeCosta could receive

Buttner, North Carolina, facility if the 12

sentence

were

imposed.

DeCosta's

counsel

I think the repercussions of that would

be far greater than what we've had up to
this point, where the children [DeCosta's
children] have suffered, the family has
suffered, the publicity has hurt them.
He's
lost his job,
his income has
suffered.
Now, the family will be on
welfare and I don't think they'll ever
get back together, if this man goes away
for a year. . . . And that would be even
sadder than what we've got today.
After

further colloquy,

including

the prosecutor's

rejection of pretrial diversion, the court sentenced

to

one

year

of

imprisonment, three

release including mental health

the mandatory $50 special
to

the

Bureau of

of

supervised

counseling as directed,

assessment.

Prisons that

years

DeCosta

the

Buttner with appropriate treatment.

and

The court recommended

sentence be

served at

Thereafter, the district

court stayed the sentence pending this appeal.

On

appeal,

district court

DeCosta's
failure to

central

argument

depart from the

concerns

the

guidelines range

-4-4-

and sentence DeCosta to probation or

something less than one

year.
to

It is settled law that a sentencing court is entitled

depart

in

cases

that

fall

contemplated by the guidelines.

outside

1993).

Both the statute

the guidelines

permit departures

aggravating or

mitigating circumstance

not

adequately

Sentencing

Commission

taken
"that

where the court

into

of a

should

result

in a

guidelines.

and

finds "an

kind, or to

consideration"

different from that described" in the

3553(b); U.S.S.G.

"heartland"

See United States v. Rivera,

___ _____________
______

994 F.2d 942, 946-47 (1st Cir.

degree

the

by

a
the

sentence
18 U.S.C.

5K2.0.

Although the decision not to depart is ordinarily within

the

district court's

discretion, DeCosta

district court erred in concluding

to depart.

asserts that

the

that it had no discretion

It quotes in part the district judge's comment at

the hearing:
But unless I am persuaded that this
case is extraordinary [in] kind o[r]
degree and a departure is justified, I'm
required to give the defendant at least
12 months in prison. Anticipating that I
would not have the discretion to give a
probationary sentence, I've talked with
the Bureau of Prisons, as well as with
Pretrial Services and Probation.
DeCosta's
should

brief

have

intelligence,
cooperation

further argues

departed
his
in

family
seeking

in

that

light
and

the
of

-5-5-

DeCosta's

employment

counseling,

court could

his

and

limited

situation,
acceptance

his
of

responsibility,

and

the lack

of

danger that

he

posed to

others.
The government has

responded with a brief

twice the length of that filed by DeCosta.

with extensive
departure

citations, that

issue below and has

of more than

The brief argues,

DeCosta failed to

raise the

therefore waived it.

If not

waived, says the government, the district court's sentence is

in

any case within

appealable.
the

range and

therefore non-

Finally, if the refusal to depart is appealable,

government

says

circumstances urged
reasonable basis
of

the guideline

these grounds.

that

none

of

the

are extraordinary

enough

for departure; and the

It is not

family

or

other

to provide

brief analyzes each

easy to think of anything else

that might have been argued in defense of the sentence.

We start with the
issue has been waived.

government's claim that the departure

There

court did consider whether to

is no doubt that the

depart.

The court

district
emphasized

DeCosta's lack of dangerousness and went so far as to ask the

parties

to

brief

the

question whether

United

States

v.

______________
Studley, 907 F.2d 254
_______
Deane,
_____

907 F.2d 11 (1st Cir. 1990), precluded a departure on

this ground.

Apparently, DeCosta's counsel found no basis to

distinguish Studley or
_______
of

(1st Cir. 1990), and United States v.

______________

Deane and on appeal

_____

dangerousness alone would not be

agrees that lack

a permissible basis for

departure.

-6-6-

It
other

is far
grounds

less clear
was

DeCosta's counsel,
the

that the

explicitly

issue of

raised

at

as the government points

departure on
the

hearing.

out, never used

term, and the factors that he emphasized at the hearing,

apart from lack of danger, were for the most part relevant to
the selection of a
the

other

probation, a

sentence within the guideline range.

hand, DeCosta's
result

counsel

that could

certainly

only be

did ask

reached through

On
for
a

departure, and

urged the same factors now pressed as grounds

for departure.

The

happily depart

if

balance,

we are

district court made clear that

it had

the

authority to

not inclined

to resolve

do

it would
so.

this case

On
on the

basis of waiver.
The

government's

next

argument,

that

court's decision is unreviewable, presents

problem.

The

discretionary decision

action ordinarily not subject

are

the

district

quite a different

not to

depart

is an

to appellate review, but there

certain exceptions. These exceptions include cases where

the sentencing court declines to depart because of "a mistake

of law," such as

"the sentencing court's mistaken impression

that

the

it

lacked

legal authority

"misapprehension of the rules governing

States v. Gifford, 17 F.3d
______
_______
thorough

discussion

of the

to

deviate"

or

its

departures."

United
______

462, 473 (1st Cir. 1994).

For a

matter,

see
___

United States
_____________

Pierro, No. 93-1313 (1st Cir. July 27, 1994).

______

-7-7-

v.

Difficulty

commonly arises where mitigating factors are

urged as a basis for departure, and the district court simply

asserts that it "cannot" or "is without authority" to depart.
Terse phrases

like these are common, for

the district court

is not required to

give reasons for refusing to

depart, but

they may create an

ambiguity.

might think

A district court

that it "cannot" depart based on the factors urged because it

misunderstands the guidelines or the precedents; for example,
it

might think that a mitigating factor is a forbidden basis

for

departure

Conversely,
depart

when

it

is

district court

where it means only

urged

actually
might

a
say

that it has

and found that they

permissible
that it

one.

"cannot"

weighed the factors

do not distinguish

the case from

the mine run of cases.

Here, we have no reason to think that the district court
made any mistake
the

guidelines

of law in construing the governing statute,

or

pertinent

implies that the district

authority to depart
because

this

on grounds

for departure.

"failure" is

that

Defense counsel

court must have underestimated its

the court failed to

possible basis

precedent.

other than

lack of

discuss the other

But

the obvious

defense counsel

at the

danger,

factors as a
reason for
sentencing

hearing never explicitly urged these other factors as a basis

for departure.

-8-8-

DeCosta
comment

that

is

also not

"I would

not have

probationary sentence . .
what the court
The

district

helped

. ."

meant by such
judge's

by

the district

judge's

the

discretion to

give a

Context often
remarks and it

immediately

prior
_____

explains just
does so

sentence,

here.
quoted

above, makes plain that the district judge meant only that he
couldnot findthecase extraordinaryenoughto justifyadeparture.
In this case, it

is easy to conclude

evident or even arguable error of law that

review the refusal to depart.

that there is

no

would allow us to

But difficult cases--at least

as to reviewability--will remain wherever

mitigating factors

are explicitly urged

departure and

as the

basis for a

the

district court says only that it "cannot" or "lacks power" to

depart.
just

Sometimes,

as here,

it will be

what the district court meant.

is a recurring

easy to

determine

But because the problem

one, we have a suggestion:

that the district

court say--where this is the case--that it has considered the

mitigating factors urged but

does not find them sufficiently

unusual to warrant a departure in the case at hand.

Of course,
proper.

in

some cases

formula would

not

be

Here, for example, we fully agree with the district

court that

Studly and
______

Deane
_____

would have had no authority

was not dangerous.
depart

this

but

mean that

the district

court

to depart simply because DeCosta

Similarly, if a district court desired to

thought

this

course

forbidden

by

explicit

-9-9-

guideline language, one

refusal

in these terms.

would expect the

But where

court to cast

its

permissible factors are

urged and the court simply thinks that there is not enough to
distinguish the case

from the ordinary,

a sentence to

this

effect would be helpful.

Having found
government's

no legal error,

final,

alternative

we need not
argument

consider the
that

the

circumstances
provide

in this case

basis

unfortunate

for

to leave

obvious

basis for

defense

counsel

are not

departure.
the

departure

No

Still,

impression that

failed to

district court.

so extraordinary

that we
frame

record

it

would

there exists

are ignoring

the

legal issue

evidence is

as to
be
an

because
in

present here

the
that

"reduced mental capacity contributed to the commission of the

offense," U.S.S.G.

5K2.13,

and the guideline

language on

family circumstances and employment is not helpful to DeCosta

in this case.
Child

Id.
___

5H1.5, 5H1.6.

pornography is

not a

victimless crime,

DeCosta and his family this is surely a very sad

but for

affair.

We

commend the district court for its multiple efforts to find a

solution

best

suited to

government, zeal
but it can
learn

that

circumstances.

is ordinarily to be admired

be overdone.
prior

the

to

Accordingly, we
prosecution DeCosta

As

for

the

in a prosector

are comforted
was

offered

to
an

opportunity to participate in the pretrial diversion program-

-10-10-

-even

though

for reasons

not

developed in

the

record no

of

appellate

agreement was ultimately reached.

The

appeal

jurisdiction.

is

dismissed
_________

for

want

-11-11-