874 F.

2d 43
57 USLW 2674

UNITED STATES of America, Appellee,

v.
Wilfredo DIAZ-VILLAFANE, Defendant, Appellant.
No. 88-1998.

United States Court of Appeals,

First Circuit.
Heard Feb. 28, 1989.
Decided May 4, 1989.
Rehearing and Rehearing En Banc Denied June 6, 1989.

Rafael F. Castro Lang, San Juan, P.R., by Appointment of the Court, for
defendant, appellant.
Jorge L. Arroyo, Asst. U.S. Atty., Old San Juan, P.R., with whom Daniel
F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief for the U.S.
Before BREYER, TORRUELLA and SELYA, Circuit Judges.
SELYA, Circuit Judge.

This appeal necessitates that we consider the effect of the district court's failure
to adhere to a local rule. It also requires, for what seems to be the first time, that
we review a sentence in order to determine whether the district court correctly
calculated, and thereafter appropriately departed from, the newly-minted
sentencing guidelines (Guidelines) promulgated by the United States
Sentencing Commission pursuant to the Commission's statutory mandate. See
Sentencing Reform Act, as amended, 18 U.S.C. Sec. 3551 et seq. (1982 &
Supp.1988); 28 U.S.C. Secs. 991-998 (Supp.1988) (collectively, the Act).
Finding no reversible error, we affirm.

I. BACKGROUND
2

Defendant-appellant Wilfredo Diaz-Villafane pled guilty to a single count (of a

multicount indictment) charging possession with intent to distribute 20 grams

(net weight) of heroin in violation of 21 U.S.C. Sec. 841(a)(1) (1982)
(maximum allowable sentence: 20 years). Following standard convention, see
Fed.R.Crim.P. 32(c), the judge ordered that a presentence investigation report
(PSI) be prepared. When completed, the PSI concluded that Diaz-Villafane's
total offense level and criminal history category placed him in a sentencing
range of 27-33 months under the Guidelines.
3

Appellant objected to the PSI on several grounds. The district court held a
hearing on September 1, 1988. Two government witnesses testified. The court
made certain sentencing findings (later committed to writing), and, grounding
its upward departure from the Guidelines on these findings, sentenced
defendant to a 10-year prison term.

On appeal, Diaz-Villafane argues that (1) the sentencing hearing was

contaminated by failure to comply with a court rule; (2) the district judge
calculated the offense level inaccurately; and (3) the judge's substantial
departure from the sentencing range indicated by the Guidelines was altogether
impermissible.

II. NONCOMPLIANCE WITH LOCAL RULES

5

When appellant was sentenced, the Local Rules of the District of Puerto Rico
seemingly provided that:

6 either party wishes to call any witnesses at the imposition of sentence hearing,
If
counsel shall submit, in writing to the Court, the Probation Officer, and opposing
counsel, not later than five (5) days before the imposition of sentence, a statement
containing (a) the names of the witness[es], (b) a synopsis of their anticipated
testimony, and (c) an estimate of the anticipated length of the hearing.
7

D.P.R.L.R. 418.6 (emphasis supplied). It is uncontested that the prosecutor did

not give the 5-day written notice contemplated by the rule. Notwithstanding,
when the government sought to call witnesses at the sentencing hearing and the
defense objected, the court refused to invoke the rule, declaring that it was
"suspended" and "not in effect." Although we find the local rule to have been in
force, we think that the court had power to suspend it in this instance.

Local Rule 418.6 was adopted on May 20, 1988. According to the June 2, 1988
minutes of the Committee for the Revision of the Local Rules for the United
States District Court for the District of Puerto Rico, Rule 418 "as already
approved, [remained] in effect until further order." Once so adopted:

9 local rule ... shall remain in effect unless amended by the district court or
A
abrogated by the judicial council of the circuit in which the district is located.
10

Fed.R.Crim.P. 57. On September 1, neither of these conditions had been

fulfilled: the district court had not perfected an amendment and the circuit
council had not intervened. The government acknowledges that the operation of
Rule 418.6 had not been stayed. Although the district court was actively
considering amendments to Rule 418 (on June 28, the court had issued a public
notice suggesting that the rule needed modification and requesting comments
on certain proposed amendments), none had been enacted. Without more,
publication of a notice of contemplated revision does not constitute withdrawal
or suspension of a local rule.

11

Our conclusion that Local Rule 418.6 was in force does not end our inquiry.
Local Rule 105 authorized the district court to suspend local rule requirements
in a given case.1 The savings clause contained in D.P.R.L.R. 105 mirrors the
widely-accepted idea that a district court should be accorded considerable
latitude in applying local procedural rules of its own making, and in departing
from them. See Trundle v. Bowen, 830 F.2d 807, 809 (8th Cir.1987); Atlas
Truck Leasing, Inc. v. First NH Banks, Inc., 808 F.2d 902, 903 (1st Cir.1987);
United States v. Warren, 601 F.2d 471, 474 (9th Cir.1979); United States v.
Cicilline, 571 F.Supp. 359, 364 (D.R.I.1983). In general, "[i]t is for the district
court to determine what departures from its rules may be overlooked." Braxton
v. Bi-State Dev. Agency, 728 F.2d 1105, 1107 (8th Cir.1984).

12

Let us be perfectly clear. We do not suggest that such discretion is unbridled.

Once local rules have been promulgated, lawyers and their clients have a right
to place reasonable reliance on them. See United States v. Ferretti, 635 F.2d
1089, 1093 (3d Cir.1980). To set the strictures of a local rule to one side
without advance notice, the court (1) must have a sound reason for doing so,
and (2) must ensure that no party's substantial rights are unfairly jeopardized.
These preconditions, we believe, were met in this case.

13

The record indicates that the trial judge had two excellent reasons for
sidestepping literal compliance with D.P.R.L.R. 418.6:

14

1. The judges of the district court and the committee on rule revisions had come
to doubt the workability of the Rule, and there was a legitimate question as to
whether it remained in effect. (Indeed, the judge had been the principal
draftsman of a proposed amendment; and the amendment was, at the time,
circulating among the judges of the district court for signature.)

15

2. In this case, sentencing had been set for September 1. Defense counsel
received notice no later than August 22 that the PSI was complete. Yet, he did
not serve his objections to it until August 29. Thus, the prosecutor could not
possibly have given the 5-day notice contemplated by Rule 418.6.

16

These reasons, we think, were sufficient to justify suspension of the local rule
in the absence of cognizable prejudice. To be sure, appellant claims prejudice:
had counsel been armed with the witnesses' names and a synopsis of anticipated
testimony, cross-examination would have been enhanced and rebuttal evidence
assembled. But, appellant is brandishing a cardboard sword. His claim consists
mainly of gauzy generalities. He has been unable credibly to suggest how crossexamination might more fruitfully have been conducted or what material
evidence, not available at the time, he would have submitted.

17

On the other pan of the scale, there was scant potential for surprise: all of the
matters traversed by the testimony were within the framework of, and covered
by, the PSI--which had been available to defendant for upward of a week before
the hearing. Moreover, it was Diaz-Villafane, by and large, who set the agenda
for the evidence. In objecting to the PSI, he contested certain facts. He knew
that the purpose of the sentencing hearing was to resolve those contests. See
Fed.R.Crim.P. 32(c)(3)(D). Having put the prosecution to its proof of the
disputed items, any claim of surprise on his part is as empty as a beggar's
purse.2

18

And there is more. We find it of decretory significance that defense counsel,

although seeking unsuccessfully to block the testimony entirely, never moved
for a continuance to prepare for cross-examination or to muster additional
evidence. Appellant's present claim that he was unfairly surprised is severely
undermined, if not entirely undone, by his neglect to ask the district court for a
continuance to meet the claimed exigency. See, e.g., United States v. Ingraldi,
793 F.2d 408, 413 (1st Cir.1986) (defendant's failure to move for continuance
despite delayed disclosure of files indicates lack of prejudice). If, indeed, this
was a sneak attack, then a continuance would have been a complete cure. It is,
we think, incumbent upon a party faced with such a situation to ask explicitly
that the court grant the time needed to regroup, or waive the point. See Szeliga
v. General Motors Corp., 728 F.2d 566, 568 (1st Cir.1984) ("remedy for coping
with surprise is not to seek reversal after an unfavorable verdict, but a request
for continuance at the time the surprise occurs"); United States v. Long, 674
F.2d 848, 855 (11th Cir.1982) (similar). Appellant apparently did not need
more time; the transcript shows that the witnesses were cross-questioned
vigorously, thoroughly, and with an understanding born of familiarity.

19

Appellant makes one final (related) argument: that the failure to provide
advance notice violated due process. The contention is meritless. A defendant
has a right to fair sentencing procedures, see United States v. Stevens, 851 F.2d
140, 143 (6th Cir.1988), but he has no due process right to be informed in
advance of the identity of witnesses or of the expected substance of their
testimony. At most, a "[d]efendant ... has a constitutional right not to be
sentenced on the basis of invalid information and, therefore, must be given an
opportunity to rebut any challenged information." United States v. Fogel, 829
F.2d 77, 90 (D.C.Cir.1987) (citations omitted); see also Stevens, 851 F.2d at
143; United States v. Safirstein, 827 F.2d 1380, 1385 (9th Cir.1987); Kohley v.
United States, 784 F.2d 332, 334 (8th Cir.1986). There was no shortfall here.

20

We need not reinvent the wheel. From what we have already written, it is
evident that appellant was given the requisite opportunity to (1) challenge the
information contained in the PSI,3 (2) attempt to rebut the prosecution's version
of the facts, and (3) cross-examine the government's witnesses.
Notwithstanding this opportunity, appellant failed to establish that the
information included in the PSI, presented at the hearing, or relied upon by the
sentencing judge, was false. Diaz-Villafane received all of the process that was
due.

21

We need strum these strings no more. In complaining of the nonobservance of

the local rule, defendant, like the Pharisees of old, seems fixated on the symbols
of piety to the exclusion of adequate concern with the spirit. The court below
conducted itself fairly and did no violence to defendant's substantial rights. We
conclude, therefore, that the court did not abuse its discretion in suspending
D.P.R.L.R. 418.6 in the circumstances of this case. Cf. Fogel, 829 F.2d at 91
(defendant could not complain of government's failure timely to file sentencing
memorandum where much of it consisted of transcripts to which defendant had
access and defendant did not request additional time for review); United States
v. Mitchell, 723 F.2d 1040, 1049 (1st Cir.1983) (violation of local rule
constituted harmless error where defendant failed to show substantial
prejudice).

III. APPLYING THE GUIDELINES

22

Application of the Guidelines is essentially a seven step process: the court (1)
ascertains the statute of conviction; then (2) determines the "base offense level"
corresponding thereto; then (3) computes a "total offense level" by adjustment
of the base offense level to take into account defined desiderata such as the
presence of multiple counts, victim characteristics, role in the offense,
obstruction of justice, and acceptance of responsibility; then (4) ascertains

defendant's "criminal history category;" then (5) uses a grid to determine the
"sentencing range" indicated by the confluence of defendant's total offense
level and criminal history category; then (6) considers possible departures; then
(7) pronounces sentence. See United States Sentencing Commission Guidelines
Manual (Manual ) Sec. 1B1.1 at 1.13 (rev. ed. 1988); see also United States v.
Wright, 873 F.2d 437, 440 (1st Cir.,1989).
23

Here, the count in question had a base offense level of 18. See Manual Sec.
2D1.1(a)(3) & Drug Quantity Table at 2.37-2.39. The district court made two
(offsetting) adjustments: it increased the offense level by two points because of
appellant's role in the offense as "an organizer, leader, manager or supervisor"
of criminal activity, id. Sec. 3B1.1(c) at 3.3, and then subtracted two points for
acceptance of responsibility. See id. Sec. 3E1.1 at 3.21. Diaz-Villafane's total
offense level, therefore, remained at 18. His criminal history category was I (the
lowest possible) because, despite numerous pending drug charges, he had not
previously been sentenced for any other offense. See id. Sec. 4A1.1 at 4.1. The
grid yielded a sentencing range of 27-33 months, but the district court, carefully
articulating its reasons, imposed a 10-year sentence.

24

Diaz-Villafane challenges the district court's application of the Guidelines in

but a single respect, objecting strenuously to the finding that he was "an
organizer, leader, manager or supervisor" in a criminal activity involving more
than one but fewer than five participants. See Manual Sec. 3B1.1(c) at 3.3.
Because this finding involves a "mixed" fact-law question, defendant has the
burden of showing it to be "clearly erroneous." 18 U.S.C. Sec. 3742(d); see
Wright, at 443-44; United States v. Mejia-Orosco, 867 F.2d 216, 220-21 (5th
Cir.1989). We look to the record.4

25

The judge had before him evidence that defendant boasted of "controll[ing] the
area" and that he was "protected with a bunch of individuals riding bikes,
motorcycles and cars." During a drug sale on January 22, defendant was
accompanied by a minor named Manolo; it was Manolo who actually delivered
the heroin to the undercover agent. On the occasion of another transaction,
youths on bicycles encircled Diaz-Villafane, warning him when he roamed too
far afield. Another knowledgeable witness described appellant as "a leader,"
and gave considerable detail. Based on this evidence and more, the judge made
a specific finding that appellant was "a person who had others working for him,
up to five, and in that sense he was a leader or manager." The judge explained
that, as he saw matters, Diaz-Villafane "was not working alone in these
things...."

26

There need be no particular formality in the ossature of a narcotics enterprise to

26

justify invocation of section 3B1.1. Drug dealers are unlikely to make much use
of position descriptions or organizational charts. Particularly with respect to the
relatively small criminal cabals contemplated by section 3B1.1(c)--2 to 5
people--"the distinction between organization and leadership, and that of
management or supervision, is of less significance than in larger enterprises that
tend to have clearly delineated divisions of responsibility." Manual Sec. 3B1.1,
Background at 3.4. Even were we to grant the benefit of any doubt and assume
that the evidence could have been interpreted to cast Diaz-Villafane as a day
laborer rather than a straw boss, it would avail him nothing. "Where there are
two permissible views of the evidence, the factfinder's choice between them
cannot be clearly erroneous." Anderson v. City of Bessemer City, 470 U.S. 564,
574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). The district court's
characterization of appellant's role was altogether supportable.

IV. DEPARTURE FROM THE GUIDELINES

27

Under the Sentencing Reform Act, a district court may depart from the
Guidelines if it "finds that there exists an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken into consideration
by the Sentencing Commission in formulating the guidelines that should result
in a sentence different from that described." 18 U.S.C. Sec. 3553(b); see
generally United States v. Russell, 870 F.2d 18 (1st Cir.1989) (per curiam). The
Commission's intentions are clear:

28 Commission intends the sentencing courts to treat each guideline as carving out
The
a "heartland," a set of typical cases embodying the conduct that each guideline
describes. When a court finds an atypical case, one to which a particular guideline
linguistically applies but where conduct significantly differs from the norm, the
court may consider whether a departure is warranted.... [T]he Commission does not
intend to limit the kinds of factors (whether or not mentioned anywhere else in the
guidelines) that could constitute grounds for departure in an unusual case.
29

Manual Sec. 1A4(b) at 1.6-1.7.5 With this signpost pointing the way, we turn to
the departure below.

A. Standards of Review.
30
31

We have yet to limn the standards of review applicable to departures from the
Guidelines. We do so today. The process, as we see it, comprises three steps.

32

First, we assay the circumstances relied on by the district court in determining

that the case is sufficiently "unusual" to warrant departure. That review is

essentially plenary: whether or not circumstances are of a kind or degree that

they may appropriately be relied upon to justify departure is, we think, a
question of law.
33

Second, we determine whether the circumstances, if conceptually proper,

actually exist in the particular case. That assessment involves factfinding and
the trier's determinations may be set aside only for clear error. See 18 U.S.C.
Sec. 3742(d).

34

Third, once we have assured ourselves that the sentencing court considered
circumstances appropriate to the departure equation and that those factors
enjoyed adequate record support, the direction and degree of departure must, on
appeal, be measured by a standard of reasonableness. 18 U.S.C. Sec. 3742(e)
(2); see also Mejia-Orosco, at 218 (distinguishing between standard of review
for sentences within and without Guidelines); United States v. Sturgis, 869 F.2d
54, 56-57 (2d Cir.1989) ("scope of review on appeal ... is limited to deciding
whether a sentence imposed outside the guideline range is 'unreasonable' ");
United States v. Ryan, 866 F.2d 604, 609-10 (3d Cir.1989) (similar). In this
context, reasonableness is determined with due regard for "the factors to be
considered in imposing a sentence," generally,6 and "the reasons for the
imposition of the particular sentence, as stated by the district court...." 18
U.S.C. Sec. 3742(d)(3).

35

This third step involves what is quintessentially a judgment call. District courts
are in the front lines, sentencing flesh-and-blood defendants. The dynamics of
the situation may be difficult to gauge from the antiseptic nature of a sterile
paper record. Therefore, appellate review must occur with full awareness of,
and respect for, the trier's superior "feel" for the case. We will not lightly
disturb decisions to depart, or not, or related decisions implicating degrees of
departure.

36

In terms of Diaz-Villafane's sentence, we believe that the departure inquiry can

be compressed. Accordingly, we examine the sufficiency of the grounds for
departure, legally and factually (steps one and two); and, finding the grounds to
be solid, we then examine the reasonableness of the upward departure (step
three).

B. The Grounds for Departure.

37
38

Pursuant to 18 U.S.C. Sec. 3553(c)(2), the district court stated in some detail its
reasons for abandoning the Guidelines: (1) defendant's status as an "important

supplier ... to drug addicts in the Ponce, Puerto Rico area;" (2) the pendency of
eight trafficking charges against defendant in the Commonwealth courts; (3)
defendant's use of "adolescent or pre-adolescent children" to deliver narcotics;
(4) defendant's involvement in drug ventures that reaped $10,000-$15,000
daily, "as reported by himself;" and (5) the purity of the heroin. We believe that
these circumstances were appropriately considered and that the court's findings
were satisfactorily record-rooted. We explain briefly.
39

1. Important Supplier. Defendant apparently concedes that this factor was

relevant. In turn, the record leaves no question but that the court's
characterization of Diaz-Villafane in this light was justified.

40

2. Pending Drug Charges. That appellant was awaiting trial in the

Commonwealth courts on eight other drug-related charges is undisputed. And,
because he had not yet been convicted and sentenced on any of them, those
charges were not taken into account in calculating his criminal history category.
See Manual Sec. 4A1.1 at 4.1; Sec. 4A1.2 at 4.5. They could nevertheless be
considered in the departure calculus. Departure was permissible where:

41reliable information indicates that the criminal history category does not
...
adequately reflect the seriousness of the defendant's past criminal conduct or the
likelihood that the defendant will commit other crimes. Such information may
include, but is not limited to, information concerning: ...
***
42
***
43
44 whether the defendant was pending trial, sentencing, or appeal on another charge
(d)
at the time of the instant offense;
(e) prior similar adult criminal conduct not resulting in criminal conviction.
45
46

Id. Sec. 4A1.3 at 4.8-4.9. Both subsections (d) and (e) apply to this case. At
least some of the Commonwealth charges were pending, and probable cause
had been established, when Diaz-Villafane committed the offense for which he
was indicted federally. Without exception, the Commonwealth charges appear
to be for "prior similar adult criminal conduct," i.e., possession and/or
distribution of heroin. Thus, the district court had "reliable information"
constituting grounds for departure under section 4A1.3. Cf. Sturgis, at 57
(upholding district court's departure from Guidelines to take account of prior
state felony convictions for which sentences were pending).

47

3. Use of Minors. Even a cursory examination of the record shows the district
court's conclusion that Diaz-Villafane "at least once" used children to deliver
drugs to be unimpugnable. There was testimony by two witnesses that an 11year-old was carrying, and actually handed over, contraband on at least one
occasion, in appellant's presence; and that appellant pocketed the purchase
price. The fact that the minor was never identified (other than by the sobriquet
"Manolo"), nor asked to testify at the sentencing hearing, went to the weight of
the evidence, not its adequacy.

48

4. Amount of Money Involved. The objection to the court's finding that

appellant was involved "in a venture that profited, as reported by himself, from
$10-15,000 per day," is unavailing. Defendant's main point seems to be that this
conclusion was implicitly contradicted by (1) the PSI (which did not indicate
that Diaz-Villafane enjoyed an opulent lifestyle), and (2) the absence of any
fine (a fine must be imposed in a drug-trafficking case unless the court
determines that defendant is unable to pay, Manual Sec. 5E4.2(a) at 5.18). But,
the district court's finding was not that Diaz-Villafane had personally profited
to such a munificent extent; it was that the "venture" in which he willingly
participated was of that order of financial magnitude. This description was
amply bulwarked. Two witnesses testified that defendant bragged about selling
up to $15,000 worth of heroin daily. Although defendant denied the truth of the
rodomontade, the court was free to disbelieve him. See United States v.
Cintolo, 818 F.2d 980, 989 (1st Cir.) (trier not bound to accept self-serving
stories of persons accused), cert. denied, --- U.S. ----, 108 S.Ct. 259, 98 L.Ed.2d
216 (1987); cf. Wright, at 873 F.2d 442-444 (no clear error where district court
debunked appellant's statement anent comparative role in criminal scheme).
And because the challenged finding dealt with the venture, not with defendant
personally, neither the fact that his financial statement reflected earnings far
below $10,000-$15,000 per day, nor the district court's decision to abjure
imposition of a fine, necessarily undermined it.

49

5. Purity of the Heroin. Appellant concedes the accuracy of the finding that the
drug sample was 33% pure, but argues that purity was already taken into
account in arriving at the base offense level. He is wrong. The drug quantity
table contained in the Guidelines (from which the base offense level was
initially determined), refers to "the entire amount of the mixture or compound,"
if it contains "any detectable amount of a controlled substance." Manual Sec.
2D1.1, Drug Quantity Table at 2.39.7 In contrast, the purity level to which the
judge alluded referred to the controlled substance as a percentage of the
mixture. The Commentaries to section 2D1.1 flatly state:

Trafficking in controlled substances, compounds, or mixtures of unusually high

50

purity, may warrant an upward departure. The purity of the controlled substance,
particularly in the case of heroin, may be relevant in the sentencing process because
it is probative of the defendant's role or position in the chain of distribution. Since
controlled substances are often diluted and combined with other substances as they
pass down the chain of distribution, the fact that a defendant is in possession of
unusually pure narcotics may indicate a prominent role in the criminal enterprise and
proximity to the source of the drugs.
51

Manual Sec. 2D1.1, Application Notes at 2.40. The district court had every
right to ground a departure on the heroin's high degree of purity. Accord Ryan,
at 607-09.

C. Reasonableness of the Departure.

52
53

Having ascertained that sufficient grounds existed, legally and factually, to

justify a departure, we inspect the extent of the departure to assess whether the
district court--which more than tripled defendant's maximum indicated
sentence--acted reasonably. We think that it did.

54

At the threshold, we must deal with appellant's contention that departures are
merely a matter of arithmetic. A facet of the objection with regard to use of
minors is illustrative. Appellant refers to section 2D1.2 of the Guidelines,
arguing that, had he been charged with distributing to minors under 21 U.S.C.
Sec. 845(b) (which he was not), and a youngster under the age of 14 was
involved, his sentence could not exceed 51 months. See Manual, Sec. 2D1.2 at
2.46.8 Therefore, we are told, a sentence of 120 months is clearly unreasonable.
We decline the invitation to enter so surreal a world.

55

There are several flaws in appellant's reasoning. First, if Diaz-Villafane had

been charged under section 845(b), the district court could still have departed
from the Guidelines for the host of other reasons present in this case. Second,
the Sentencing Commission has explicitly stated that the mention of a
circumstance elsewhere in the Guidelines does not restrict the sentencing court
from taking that circumstance into account in departure decisions. See Manual
Sec. 5K2.0 at 5.36. If appellant's logic were to prevail, the judge would be
bound to search for the presence of each discerned circumstance elsewhere in
the Guidelines, attribute a sentencing range to it, and then add the various
sentences together before arriving at a final sentence. The Sentencing
Commission, in describing its "basic approach," cautioned against such an
additive approach:

The list of potentially relevant features of criminal behavior is long; the fact that
56

they can occur in multiple combinations means that the list of possible permutations
of factors is virtually endless. The appropriate relationships among these different
factors are exceedingly difficult to establish, for they are often context specific ....
the relationship between punishment and multiple harms is not simply additive. The
relation varies, depending on how much other harm has occurred. (Thus, one cannot
easily assign points for each kind of harm and simply add them up, irrespective of
context and total amounts.)
57

Manual Sec. 1A3 at 1.3. For our part, we reject defendant's attempt to turn
idiosyncratic departure decisions into mechanistic bean-counting.

58

That said, we conclude that the district court's retreat from the Guidelines in
sentencing Diaz-Villafane was reasonable. The circumstances upon which the
court based the departure were "not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines," 18 U.S.C. Sec.
3553(b), and swept the case well out of the mainstream. They were, therefore,
permissible grounds for departure. As to the degree of departure, it was
admittedly substantial. Yet, having in mind the district court's firsthand
knowledge of the case and its careful exposition of the reasons why it thought
the situation to be markedly atypical, we cannot say that the sentence imposed
was outside of the universe of acceptable punishments. Put another way, the
departure seems reasonable.

59

Although "there appears to be some inherent tension in the guidelines

themselves as to the extent to which departure is permissible," Ryan, at 609, we
read the Guidelines as envisioning considerable discretion in departure
decisions, at least at this early stage of their existence. See S.Rep. No. 225, 98th
Cong., 2d Sess., reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3235
(purpose of Guidelines "is to provide a structure for evaluating the fairness and
appropriateness of the sentence for an individual offender, not to eliminate the
thoughtful imposition of individualized sentences"); see also Mejia-Orosco, at
218; Sturgis, at 56-57; Ryan, at 610; United States v. Correa-Vargas, 860 F.2d
35, 37 (2d Cir.1988). Although we are cognizant that departures should be the
exception rather than the rule, see, e.g., United States v. Uca, 867 F.2d 783, 787
(3d Cir.1989) ("attempts to impose uniformity will be destroyed if courts depart
often from the Guidelines"), we must nonetheless defer, within broad limits, to
the trial judge's intimate familiarity with the nuances of a given case. As the
Sentencing Commission itself has stated: "The controlling decision as to
whether and to what extent departure is warranted can only be made by the
court at the time of sentencing." Manual Sec. 5K2.0, Grounds for Departure at
5.36. In this instance, the extent of the district court's departure from the
Guidelines, though considerable, was within the realm of reason.

60
1

Affirmed.

The rule provides:

The Court may suspend or modify the requirements or provisions of any of
these rules in a particular case by written order. When a judge of this court
issues any order in a specific case which is not consistent with these rules, such
order shall constitute a suspension of these rules for such case and only to the
extent that it is inconsistent therewith.
D.P.R.L.R. 105. We recognize that the first sentence speaks of suspension "by
written order," but the second sentence appears to us amply to cover a situation
where the judge, "not consistent with" the first sentence of Rule 105 itself,
suspends a local rule ore tenus.

Admittedly, the hearing also produced some corroboration of uncontested facts

mentioned in the PSI. But any error in receiving that testimony was necessarily
harmless. Because appellant had not objected to the inclusion of those facts in
the PSI, the district court was entitled to accept them as true for purposes of
sentencing even without additional evidence being introduced

The record reflects that, when appellant received and reviewed the initial draft
of the PSI, he suggested several changes which the probation officer accepted.
The PSI was amended in these respects before it was presented to the district
judge. The objections heard on September 1 dealt with points on which the
protagonists had agreed to disagree. This circumstance, we think, goes a long
way toward belying the claim that appellant's due process rights were mangled

The Act provides that an appellate court must set aside a sentence "imposed as
a result of an incorrect application of the sentencing guidelines." 18 U.S.C. Sec.
3742(e)(1) (emphasis supplied). In this case, the district court, although
ascertaining the sentencing range decreed by the Guidelines, elected to sentence
outside that range. It is, therefore, arguable that any computational error in
assigning a total offense level was harmless. Because the government has not
raised the point, however, we assume for purposes of this case that the
challenged finding affected defendant's sentence

The Guidelines do proscribe departures based on enumerated factors such as

race, sex, and national origin. See Manual Sec. 5H1.10 at 5.31. No such
forbidden factors are implicated in the sentencing decision under review in this
case

18 U.S.C. Sec. 3553(a) sets forth the factors to be considered in imposing

sentence. They include the seriousness of the offense, deterrence, public
protection, the indicated sentencing range under the Guidelines, policy
statements of the Sentencing Commission, and avoidance of unwarranted
disparities in sentencing. Id

Presumably, that is because purity and amount often go hand in hand in drug
cases; unusual purity tends to indicate a person fairly high up in the chain of
distribution, as does large quantity

Appellant makes much the same sort of argument with respect to the eight
pending drug charges. He says that, taking all of these charges together, the
total quantity of narcotics involved would, under the Guidelines, result in a base
offense level of only 18 (drug quantity of between 20 and 39 grams of heroin),
and a maximum indicated sentence of 33 months for one with his prior record.
Any increment above that level, Diaz-Villafane contends, would be
unreasonable. Among its other deficiencies, this argument, of course, ignores
that "[r]epeated criminal behavior is an indicator of a limited likelihood of
successful rehabilitation." Manual Sec. 4A1.1, Introductory Commentary at 4.1