USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

FOR THE FIRST CIRCUIT

____________________

No. 96-1545

UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM A. TWITTY,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

___________________

____________________

Before

Selya, Circuit Judge,

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Aldrich, Senior Circuit Judge,

____________________

and Stahl, Circuit Judge.

_____________

____________________

Evan Slavitt, by
_____________

appointment of

the

Court,

with whom

Mary
____

Murray and Hinckley, Allen & Snyder, were on brief for appellant.
______
________________________
Michael J. Pelgro, Assistant
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Dina Michael Chaitowitz, Assistant
_______________________

United States

Attorney, with

United States Attorney, and Don

___

K. Stern, United States Attorney, were on brief for appellee.

________

____________________
January 9, 1997
____________________

ALDRICH, Senior Circuit Judge.

_____________________

(hereinafter defendant),

firearms, appealed

sentence

of

to warrant

on

sale of illegal

following the imposition

of a cumulative

earlier

different

We

United States
_____________

1995).

accordingly

version.

His convictions

erred in finding

application of the Sentencing

(1st Cir.

severe.

three counts.

the conspiracy involved lasted

November 1, 1991.

232-34

on

held the court had

participation in

Twitty

caught deep in the

97 months

stood, but we

William A.

calculation

for

long enough

Guidelines adopted

v. Twitty, 72 F.3d 228,

______

The earlier Guidelines

remanded for

On remand,

were less

resentencing on

the same judge,

Count I,

that his

the

the

by adopting a

conspiracy count,

reached the same sentence, and thence the original 97

months

total.

We can

evaporation

understand defendant's unhappiness

of his

partial

victory.

Mere appearances do not prevail over

However, we

with the

affirm.

established principles.

See United States v. Lombard, No. 96-1541, slip. op. at 12-13

___ _____________
_______

(1st Cir. Dec. 4, 1996).

I.

At the first sentencing,

the conspiracy

adhering to

other counts

shown extended

the court, believing that

beyond November 1,

the rule that conspiracy should

involving

assigned thereto

its sole

be grouped with

object, U.S.S.G.

Base Offense Level 14

1991, and

3D1.2,

pursuant to U.S.S.G.

2K2.1(a)(6) of the November 1991 Guidelines.

It then added

-2-

four sets of enhancements that brought defendant to Level 28,

which with Criminal History Category II, produced a guideline

range of

87 to 108 months.

The court chose

middle of the range, as the "total punishment."

5G1.2

(providing a

punishment"

figure in

mechanism

cases

for

with

97 months, the

See U.S.S.G.
___

determining

convictions on

"total

multiple

counts).

On this basis, the court sentenced defendant to 60

months on

the conspiracy

count, the statutory

maximum, and

then imposed a consecutive sentence of 37 months on Count II.

See
___

United States v. Quinones, 26 F.3d 213, 215-17 (1st Cir.

_____________
________

1994).

concurrent sentence of 37 months was

imposed on a

third count, leaving the total sentence at 97 months.

At resentencing, the Base

6.

The court retained the

in an adjusted

46

previous enhancements, resulting

level of 20 which this time

month guideline range, well

maximum.

reflect the

Offense Level dropped to

Explaining that

magnitude

of

this

produced a 37 to

under the 60 month statutory

range

defendant's

proceeded to depart upward by adding

did not

conduct,

adequately

the

court

an additional 8 levels,

ending

From

up again

with an

87 to

108 month

guideline range.

this it reimposed the 60 months on the first count, and

then effected a further upward departure by reimposing the 37

month consecutive

sentence

on another

ultimate sentence again to 97 months.

the reaffirmed sentences

count, bringing

the

It is to be noted that

on Counts II and III were initially

-3-

imposed on the

were

basis of

appropriate

the November

here,

assuming

1990 guidelines,

the

additional

and

upward

departure with respect to Count I.

II.

We start with the

cited no authority for

greater

Pearce,
______

the proposition that there can

sentence after

upward departure.

where the

second trial, if, as

general question. Defendant

appeal, here

He might

have cited

Court held

this to

so doing.

Pearce
______

presumption

395 U.S.

of

be no

obtained by

North Carolina
______________

be improper

here, there were no new

justification for

created a

in effect

has

v.

after a

and subsequent

711, 725-26

vindictiveness,

(1969).

viz.,

judge's irritation at being reversed.

We have held, however,

that this presumption (and hence restriction) does not apply,

for

example,

when

different judges.

(1st

the

two

are

handled

United States v. Clark, 84 F.3d

______________
_____

Cir.), cert. denied,

_____________

(1996).

proceedings

Under

___ U.S.

familiar

___,

principles,

defendant's present silence shows

by

506, 508

117 S.

Ct.

therefore,

he understands, he

272

that

should

have noted and invoked the presumption, if not when the court

opened the

issue.

hearing, at least

when its action

presented the

He did not.

We have no

discretion

to

depart

doubt the

upward

court, as a

and

reimpose

court, had

the

97

the

month

-4-

sentence.

We

have previously

held that

when resentencing

under a multi-count conviction,

[C]ommon

sense

dictates that

should be free to
what

remains

review the efficacy of

in light

sentencing plan, and

sentencing
within

of

the original

to reconstruct

architecture

applicable

the judge

upon

the

remand

constitutional

and

statutory

limits,

necessary in

order

if

that

to ensure

appears
that

the

punishment still fits the crime.

United States v. Dominguez, 951 F.2d 412, 416 (1st Cir. 1991)
_____________
_________

(quoting United States v.

______________

(1st

Pimienta-Redondo, 874 F.2d

________________

Cir. (1989) (en banc)).

The only

9, 14

restrictions on the

court when making an upward departure1 are that it adequately

explain its

decision and

that the departure

United States v. Rosales,

_____________
_______

United States v.
______________

1993).

on

safety.

19 F.3d 763, 770 (1st

Rivera,
______

994 F.2d

Here the court expressly

the large number of

be reasonable.

942,

Cir. 1994);

946-47 (1st

Cir.

based the upward departure

guns and the

endangerment of public

After review of the record, we have no basis to find

this unreasonable.

Defendant

also

that the upward departure

endangering public

complains

of "double-dipping"

in

imposing an additional penalty for

safety2 was

anticipated by

and included

____________________

1.

Other

than vindictiveness,

presumed, North Carolina v.

_______________

Pearce, 395 U.S. 711 (1969), or proven.

______

See Wasman v. United

___ ______
______

States, 468 U.S. 559 (1984).

______

2.

We

do

reflecting

not

address

the three

level

upward

departure

the large number of guns involved as in his brief

defendant concedes that

apart from the

-5-

fact that the

exact

within the Guidelines and,

by

the enhancements.

in any event, taken

We disagree.

some of the enhancements

While it

into account

is true that

reflected the fact that defendant's

behavior exceeded Guideline thresholds, the court determined,

based on

at

the entirety of defendant's

least 225

streets,

that

concluded

outside

serial

the heartland

discretion

number obliterated

the thresholds

that this

actions, i.e., putting

is an

did not

go

unusual case,

of the

in upward departure.

handguns onto

the

far enough.

It

placing defendant

Guidelines and

allowing wide

See Rivera, 994 F.2d at 949

___ ______

(1st Cir.

noted

1993).

that

We

can agree.

"appellate

determination that a case

departure,

respect

F.3d

must

Moreover, in

review

of

Quinones we
________

district

court's

is unusual, and therefore warrants

take place

'with

full

awareness of,

for, the trier's superior "feel" for the case.'"

at 218

F.2d 43, 50

(quoting United States v.

______________

(1st Cir. 1989)).

affirm defendant's sentence.

We

and

26

Diaz-Villafane, 874
______________

heed our admonition

and

____________________

sentence

was

reimposed,

this

reasonable.

-6-

departure

could

be

deemed