USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_________________________
No. 93-1826
UNITED STATES OF AMERICA,
Appellant,
v.
MICHAEL JACKSON,
Defendant, Appellee.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge]
__________________________
_________________________
Before
Selya and Cyr, Circuit Judges,
______________
and Pettine,* Senior District Judge.
_____________________
_________________________

Margaret E. Curran, Assistant United States Attorney, with

___________________
whom Edwin J. Gale, United States Attorney, and Gerard B.
_______________
_________
Sullivan, Assistant United States Attorney, were on brief, for

________
the United States.
_________________________
July 19, 1994
_________________________
__________
*Of the District of Rhode Island, sitting by designation.

SELYA,
SELYA,
vignette

Circuit Judge.
Circuit Judge.
_____________

that forms

criminal appeals

a part

(1st

Cir.

seemingly endless
the beat

of the

Concluding,

as

we

BACKGROUND
BACKGROUND

line of

federal

do,

that

the

from the guideline sentencing range

sentence previously imposed

appellee Michael Jackson and remand for sentencing.

I.
I.

more

upon by the court below are insufficient to

warrant a downward departure

vacate the

today one

United States v. Ocasio-Rivera, 991 F.2d

_____________
_____________

1993).

circumstances relied

(GSR), we

of "the

marching stolidly to

sentencing guidelines."
1,

We chronicle

on defendant-

On

April

19,

1993,

jury

convicted

appellee

possessing cocaine with intent to distribute the drug,

841(a)(1) (1988); being
U.S.C.

922(g)

relation
Since,

(1988);

and using

convictions formed

criminal record

firearm during

under 18 U.S.C.
At

U.S.S.G.

qualified

and

in

924(c) (1992).

end of

an extensive

several crimes of

for enhancement

of his

sentence

924(e) (1988).

the disposition

appellee to be

the tail

that included convictions for

violence, appellant

21 U.S.C.

a felon in possession of a firearm, 21

to a drug trafficking crime, 18 U.S.C.

these

of

an armed

4B1.4(a)

hearing, the district

career criminal within

court found

the meaning

(Nov. 1992) (instructing that

of

"[a] defendant

who is subject to an enhanced sentence under the provisions of 18

U.S.C.
status

924(e)" is
as

an armed

adjustments,

to be so regarded).
career criminal

the court calculated

Factoring in appellee's

and making

the GSR to

other standard

be 262-327 months

(offense level

34, criminal history category VI).

the court determined

that appellee qualified for

year sentence anent the use

In addition,

a mandatory 5-

of a firearm during and in

relation

to a drug trafficking crime

a sentence which, by law, had to be

tacked onto whatever sentence the

the Jackson's conviction
U.S.C.

924(c).

In

court imposed with respect

under 21

U.S.C.

short, the

841(a)(1).

See
___

guidelines, departures

to

18

aside,

forecast a minimum prison term of 27 years.

But the
Instead,

it

district court

did not

spontaneously departed,

aggregate 20-year prison

to

18

U.S.C.

924(e),

pursuant to 18 U.S.C.

set by

924(c)).

departure on the rationale

the parameters

plus

the GSR.

sentencing appellee

term (a total of

trafficking and felon-in-possession

stay within

to an

15 years on the

drug

counts, as enhanced pursuant

5-year

consecutive

sentence

The court premised the downward

that an incarcerative sentence within

the GSR

would be

tantamount to

sentence" for, the court said, in view of Jackson's

"a life

age (40), it

would be

"unlikely" that he would "ever see any light outside of

prison."

The court added:

I just happen to think that this is not the
kind of thing the sentencing commission may
have had in mind. . . . It seems to me that
this is one of those circumstances where what
[the defendant] did was terribly wrong but
not so
wrong that a
life sentence is
appropriate. . . . I am going to depart out
of a concern for the system of justice.

The
sentencing

government

now

court's stated

appeals.1

reasons are

warrant a downward departure.

II.
II.

that

the

legally insufficient

to

sentencing guidelines

is

We agree.

theory behind the

in the ordinary case, the judge will apply the guidelines,

make such interim

adjustments as

sentencing range, and

See
___

argues

DEPARTURES FROM THE GUIDELINES

DEPARTURES FROM THE GUIDELINES
The basic

that,

It

18 U.S.C.

the facts

suggest, compute

then impose a sentence within

3553(a)(b)

(1988); see
___

that range.

also United States v.

____ ______________

Rivera, 994 F.2d 942, 946 (1st Cir. 1993); United States v. Diaz______
_____________
_____
Villafane,
_________

874 F.2d 43, 47-48 (1st Cir.), cert. denied, 493 U.S.
_____ ______

862 (1989).
Departures are the
Villafane, 874 F.2d at 52.
_________
case

See Diaz___ _____

Thus, it is only in the extraordinary

the case that falls outside the heartland for the offense

of conviction
sentencing
sentence

exception, not the rule.

that the district court may abandon the guideline

range

and

impose

indicated by mechanical

See Rivera, 994 F.2d at 947-48.

___ ______

sentence

different

from

the

application of the guidelines.

One relatively common basis for

departure

arises when

the

court "finds

that

there exists

an

aggravating or mitigating circumstance of a kind, or to a degree,

not

adequately

taken

into

consideration

by

the

Commission in formulating the guidelines that should

Sentencing

result in a

____________________

1Despite due notice, appellee has neither filed a brief nor

applied for the appointment of counsel on appeal.
Hence, only
the government presented oral argument.
See Fed. R. App. P.
___
31(c); 1st Cir. R. 45.
4

sentence different from

see also
___ ____

U.S.S.G.

that described."

5K2.0

18 U.S.C.

(implementing statute);

3553(b);

see generally
___ _________

Rivera, 994 F.2d at 946; Diaz-Villafane, 874 F.2d at 49.2

______
______________
It
alleviate
likely

is

clear

disparity

that

the

in sentencing

guidelines
and

to

are

intended

make it

to

reasonably

that similarly situated offenders will receive comparable

punishments,

regardless of

judge presides at

where they

sentencing.

are prosecuted

See S. Rep. No.

___

or which

225, 98th Cong.,

2d Sess. 38, 51, 161 (1984), reprinted in 1984 U.S.C.C.A.N. 3182,

_________ __

3221, 3234, 3344 (explaining need for sentencing guidelines "[in]

order to

lessen the

different sentences
Jr.,

degree to

in comparable cases");

(noting that
"frequent

1989).

Charles J. Ogletree,

in

101

Harv.

L. Rev.

1938,

1944

(1988)

sentencing reform came about largely in response to

criticism of

the

sentencing [which]

similarly situated
946;

judges impose[]

The
Death of Discretion? Reflecting
on the Federal
___________________________________________________________

Sentencing Guidelines,
______________________

judges

which different

broad
led

discretion afforded
to

individuals"); see
___

United States v. Aguilar-Pena,

_____________
____________

federal

disparate treatment
also Rivera, 994
____ ______

for

F.2d at

887 F.2d 347, 352 (1st Cir.

Ensuring uniformity inevitably means restricting judicial

discretion, for, as we have stated, "[g]iving judges free rein to

forsake the guidelines

in cases falling within the heartland for

____________________

2The other mainstay of departure jurisprudence involves the

defendant's "substantial assistance" to the government.
See 18
___
U.S.C.
3553(e) (1988); 28 U.S.C.
994(n) (1988); see also
___ ____
U.S.S.G.
5K1.1 (implementing statute); see generally United
___ _________ ______
States v. Mariano, 983 F.2d 1150, 1155-57 (1st Cir. 1993).
This
______
_______
appeal does not require us to delve into the intricacies of
substantial assistance.
5

a given offense

would be tantamount

the

Reform

Sentencing

propelled

its

Consequently,
of

Act

and the

enactment."

important

Aguilar-Pena,
____________

while the power to

flexibility in criminal

to judicial repudiation
policies

887

F.2d

of

which

at

352.

depart offers judges a modicum

sentencing, this

power can

only be

exercised for reasons that the guidelines themselves endorse.

In
guidelines,

reviewing
appellate

tripartite analysis.

the

legitimacy of

courts

are

departures

expected

See Rivera,
___ ______

994 F.2d at

to

from the

engage

in

950-52; Aguilar________

Pena, 887 F.2d at 350; Diaz-Villafane, 874 F.2d at 49.

____
______________

The first

step requires an evaluation of the circumstances relied on by the

lower

court

in

determining

that

"unusual" to warrant a departure.

That
shorn

question is one

of law,

the

case

is

sufficiently

Aguilar-Pena, 887 F.2d at 350.

____________

evoking plenary

of deference to the court below.3

appellate review

See Diaz-Villafane, 874

___ ______________

F.2d at 49.
To guide judicial

consideration of departures at

this

stage, we have suggested that a sentencing court should analyze a

case along the following lines:
(1) What features of the case, potentially,
take it outside the Guidelines' "heartland"
and make it a special, or unusual case?
(2)
Has the Commission forbidden departures based
on those features?
(3) If not, has the

____________________

3For present purposes, we need not progress past the initial

step. In the interest of completeness, however, we note that, if
the stated circumstances pass muster, the next step requires a
reviewing court to determine whether those circumstances are
adequately documented in the record. See Aguilar-Pena, 887 F.2d
___ ____________
at 350.
Finally, the court must gauge
the departure's
reasonableness. See id.
___ ___
6

Commission encouraged departures based on

those features?
(4) If
not, has the
Commission discouraged departures based on
those features?
Rivera, 994
______

F.2d

"unusual"

a condition which,

call "atypical"
5K2.0.

If the

then the

case

is not

"special"

for simplicity's sake,

court may not

or

we shall

depart under

section

If the case is atypical, that is, if it falls outside the

heartland
focus on

at 949.

for the
the

nature of

departure hierarchy.
presence of

offense

of conviction,

the atypicality

the court
and its

must then

place in

the

If the case is atypical only because of the

a feature that

comprises a "forbidden"

sentencing court may not

depart.

an

the court

"encouraged" ground,

If the atypicality
may

(and most

ground, the

stems from

likely will)

depart.

If the atypicality

that

neither "forbidden"

is

"discouraged,"
determine
ordinary

then the

whether
case in

the

consists of a
nor

"encouraged,"

court must
case

which the

ground for departure

take a

differs

but is

long, hard

significantly

particular atypicality

simply

look to
from

the

is present.

See Rivera, 994 F.2d at 949.

___ ______
III.
III.

ANALYSIS
ANALYSIS
Here,

court

are the

the primary

factors relied

defendant's age

dictated by the guidelines.

and the

on by

the district

length of

the sentence

Neither ground justifies a downward

departure.
A.
A.
Age

is

characteristics that

among

Age.
Age.
___

the

the guidelines

various

specific

treat as

offender

"discouraged" for

purposes of

a departure.

In

other words, age is

ordinarily relevant" to the departure calculus.

p.s.;

a factor "not

U.S.S.G.

5H1.1,

accord Rivera, 994 F.2d at 948; United States v. Norflett,

______ ______
_____________
________

922 F.2d 50, 54 (1st Cir. 1990); see also United States v. Jones,
___ ____ _____________
_____
18

F.3d

1145,

Sentencing

1149-50

(4th Cir.

Commission adequately

the sentencing guidelines).

1994)

(explaining

considered age

And

Jackson's age

that the

in formulating
40

is surely

not sufficiently "special" or "unusual" to ferry the case outside

the heartland for the offenses of conviction.
Moreover, precedent teaches that
between Jackson's age and the

the interrelationship

length of the prospective sentence

does not furnish an adequate legal reason upon which to ground

departure.
(1st

For example,

Cir. 1990), we

closely comparable

in United States v.
_____________

rejected virtually the

facts.

Doe, 921 F.2d

___

340

same proposition on

There, the district court declined to

depart downward and, instead, imposed a 30-year sentence on a 54year-old man.

On

district

court

erred, inter
_____

whether

a `life

crime."
id.
___
there

was

918,

alia,
____

nothing
a

that

"fail[ing] to

sufficiently
sentence of

922 F.2d at 54,

unusual

about

approximately
Our sister

for th[e]

(remarking
8

See
___

we held that
a

34-year-old

17 years

as

to

circuits regularly

See, e.g., United States

___ ____ _____________

Cir. 1994)

the

consider

no merit to this assertion.

downward departure.

921 (8th

by

asserted

appropriate punishment

We found

have ruled to like effect.

F.3d

defendant

token, in Norflett,
________

defendant facing
authorize a

the

sentence' is

Id. at 347.
___

By like

appeal,

that the

v. Goff, 20
____

court has

consistently denied

departures to

healthy offenders in

group of a 67-year-old defendant);

F.2d

the age

United States v. Madison, 990

_____________
_______

178, 183 (5th Cir.) (explaining that age has been virtually

eliminated

as a mitigating

sentencing factor), cert. dismissed,

_____ _________

114 S. Ct. 339 (1993); United States v. Anders, 956 F.2d 907, 912
_____________
______
(9th Cir.

1992) (rejecting age-based

ground for departure

case involving a 46-year-old offender), cert.

_____
1592 (1993); United States v.
______________

in a

denied, 113 S. Ct.

______

Daiagi, 892 F.2d

______

31, 33-34

(4th

Cir. 1989) (acknowledging that age has been largely eliminated as

a mitigating factor); cf.
___

United States v. White, 945

_____________
_____

F.2d 100,

101-02 (5th Cir. 1991) (holding that youthfulness per se is not a

___ __
sufficient reason for a downward departure).4
In

sum, the

departure

that the

cannot be salvaged on the basis of either

the

interrelationship

between

the

Excessiveness.

essayed

the defendant's age or

defendant's

anticipated length of his sentence.

B.

lower court

age

and

the

B.
We
reasoning:

now
its

come

Excessiveness.
_____________

to

the crux

of

the

apparent dissatisfaction

with the

sentencing options available within the GSR.

that, given

appellant's age, a 27-year

district

court's

severity of

The judge concluded

aggregate sentence would

be the functional equivalent of life imprisonment and, therefore,

too harsh

to fit the crime.

These conclusions led the judge, to

____________________

4To be sure, the guidelines permit consideration of the age

of a mature defendant as a ground for departure "when the
offender is elderly and infirm . . . ."
U.S.S.G.
5H1.1
___
(emphasis in original). But Jackson is not elderly
and the
district court received no evidence of any cognizable infirmity.
9

use his own words,

justice."

to "depart out of a concern for the system of

Though

we

instincts, and do not

appreciate

the

judge's

humanitarian

doubt his sincerity, we regard

the stated

basis for departure as forbidden.

It
circumstances

is

firmly

settled

independently
outside

that,

justifying

a properly

absent
departure,

computed

specific
a

judge

cannot

sentence

sentencing range

merely

because he believes that the guidelines work too severe a

sanction in a
("That the

particular case.5

district court

case does not

See Norflett, 922

___ ________

thinks the GSR

by itself warrant a

F.2d at

too harsh in

53

a given

downward departure."); United

______

States v. Studley, 907 F.2d 254, 260 (1st Cir. 1990) ("Regardless
______
_______
of how well founded,
punishment
that

the

grounds

a belief by the

set by the
guidelines

for

[Sentencing] Commission is
are too

departure.");

inflexible

may

Aguilar-Pena,
____________

("Judicial dissatisfaction alone, no

world wisdom,

sentencing judge that

cannot be enough

too severe or

not

887

the

be judicial

F.2d

at

353

matter how steeped in real-

to trigger departures,

lest the

entire system crumble.").

Norflett
________
There,

in a

court departed
defendant

closely

case

parallels

involving a

the GSR

situation

at

hand.

career offender,

the sentencing

it thought that

sentencing the

downward because

within

the

would

"constitute

a miscarriage

of

____________________

5By the same token, a judge is equally powerless to depart

solely
because he
believes that
the guidelines
provide
insufficient punishment. See United States v. Cox, 921 F.2d 772,
___ _____________
___
774 (8th Cir. 1990).
10

justice."

Norflett,
________

perceived

excessiveness is

departure.

922 F.2d at 52.

not a

See id. at 53.

___ ___

We reversed, holding that

viable basis

In the process,

for a

downward

we cautioned that,

under the sentencing guidelines, judges are no longer free to act

upon

their

own views

whenever they

incommensurate to the crime."

Id.
___

think

that "the

To the contrary, judges "must

subrogate personal views [about what sentences

too

lenient] to

uniformity."

the

Congress' sense

armed

of

are too severe or

how best

to

achieve

Id.
___

This monition has

and

GSR [is]

career

particular force in career

criminal

specifically directed

cases,

for

Congress

the Sentencing Commission

offender
has

very

to ensure

that

the guidelines provide for severe incarcerative sentences in such

cases.

See 28 U.S.C.
___

994(h) (1988) (directing courts in career

offender cases to impose

sentences "at or near the

authorized [by law]");

18 U.S.C.

armed career

criminal

cases to

imprisonment

for

fifteen

suspension, probation or
Congress,
legislative

not

call.

impose

a minimum

without

parole).

Such

trumpet sounds

honor the clarion

924(e) (directing courts

years

the courts,

See

to

maximum term

make.

clearly,

the

sentence

of

possibility

of

policy choices are

And

when,

courts are

Norflett, 922

in

for

as now,

the

duty bound

to

F.2d at 53;

United

___
States v. Williams,
______
________
United States v.
______________

because

______

891 F.2d 962, 964 (1st

Gonzalez-Lopez, 911
______________

1990) (in considering

depart

________

a career

it believes

Cir. 1989); see also

___ ____

F.2d 542, 551

offender case,

sentence

(11th Cir.

"a court

cannot

is excessive"),

cert.
_____

11

denied, 500 U.S. 933

______
for

(1991).

While

we are not without

empathy

our concurring brother's views, we are also mindful that the

courts' role "is as interpreters of the words chosen by Congress,

not

as

policymakers

or

enlargers

United States v. Gibbens, ___ F.3d

_____________
_______
93-2203 slip op. at 12].

of

congressional

intent."

___, ___ (1st Cir. 1994) [No.

So, too, the courts' role vis-a-vis the

Sentencing Commission, so long as the

Commission acts within the

scope of its statutory authorization.

IV.
IV.

CONCLUSION
CONCLUSION
We need go no further.

instant

case,

neither

the

The short of it is that, in the

defendant's

age,

the

prospective

duration of his immurement, nor any combination of

are

"mitigating

circumstance[s] of a kind,

adequately taken
in formulating

court

the guidelines that

that the

are

to

18 U.S.C.

support

the defendant's

district court, on

should result in
3553(b).

circumstances relied

inadequate

Consequently,

or to a degree, not

into consideration by the Sentencing Commission

different from that described."

inexorably

these factors

sentence

remand, shall hold a

upon by

It follows

the district

downward
must be

a sentence

departure.

vacated.

The

new sentencing hearing,

at which it remains free to consider departure for other, legally

adequate

reasons (if

Limberopoulos,
_____________

any

are shown).

___ F.3d ___,

See United States

___ ______________

___ (1st Cir.

1994) [No. 92-1955,

slip op. at 3-4, 14].

Vacated and remanded for resentencing.

_____________________________________
12

Concurring opinion follows

v.

13

PETTINE,
PETTINE,

Senior District Judge,

Senior District Judge,
_______________________

concurring.
concurring

The

demands and strictures of the United States Sentencing Guidelines

("the guidelines"), and the limits that the guidelines place upon
federal

district court judges, constrain

opinion

in this case.

opinion

to be

"absent

unassailable,

specific

departure, a

I find

sentencing range

the logic of
and I

circumstances

judge cannot

me to write a separate

must

Judge Selya's able

agree with

independently

sentence outside a

merely because he believes

him

that

justifying

properly computed

that the guidelines

work too severe a sanction in a particular case."

Maj. op. at 9-

10.

Although I cannot argue with my colleague's analysis of what

the

guidelines require, I find myself

the mechanical sentencing that

and

I find it

painful to

taking great exception to

the guidelines force upon judges,

adhere to

this impersonal

and cold-

blooded process.

In this case, the district court spontaneously departed

downward

based on

defendant, the
guideline

the

belief that,

twenty-seven

range was

for

year sentence

tantamount

to a

life

this forty

year

old

required

under

the

At

the

sentence.

Sentencing Hearing, the court articulated its belief that "I just

happen to think that this is not the kind of thing the sentencing
commission may have had in mind."

Tr., 6/25/93 at

34.

However,

a review of the case law has revealed no precedent teaching

the combination of age
facto life sentence,
Selya points

out,

that

and a lengthy sentence, resulting in a de

supports a

downward departure.

the guidelines

treat

age as

As

Judge

discouraged

14

offender characteristic for purposes of a downward departure, and

the interrelationship between age and

length of sentence has not

been considered adequate justification for

a downward departure.

Furthermore, I have been unable to find any statutory language or

legislative history
States

that indicates

Sentencing Guidelines

Commission ("the

ever considered this problem.

which

the guidelines

combined with the

uncommon, logic would

Commission were

of

forty year old

reasonably reach is that

defendants are

the

only

not

members of

the

facto life sentences.

In

dearth of documentation

the Commissioners,

frequency with

numerous decades,

dictate that the

unconcerned about de

any case, given the

mind

seem to

sentences of

the United

Commission") has

Indeed, given the

result in

fact that

that Congress or

as to the state

conclusion

that

it is impossible to determine

of

can

what, if

anything, the Commission intended with regard to this issue.

Thus, I must reluctantly conclude that

for me

to dissent from

still remain

the majority

faithful to the

ideal which must

there is no way

opinion in

this case

ideal of intellectual

always be controlling

and which I have always treasured.

honesty, an

in any judicial

and painstaking

opinion

Legal precedent that supports

Judge Boyle's downward departure is simply nonexistent.

my careful

and

reflection over the

However,

consequences of

the proper application of the guidelines in this case, as well as

my

many experiences with the guidelines in the years since their

enactment, leave

me

overwhelmingly convinced

that, except

for

increased uniformity of sentences, the sentencing guidelines

are

15

a failed experiment.
With regard
guidelines
Boyle's

in this

to the results
case,

of the application

I wholeheartedly

sentiment that a term

of the

subscribe to

of years amounting

Judge

to a de facto

life sentence reaches beyond that which is appropriate for crimes

committed by the defendant in the instant case.
judge

articulated in

decision ignores

factually similar

what is truly obvious

As a like-minded

case, "The

majority

- that the portion

of a

sentence which goes beyond the

retributive,

deterrent,

function of a prison

defendant's lifespan can serve no

rehabilitative

sentence."

or

any

other

proper

United States v. Thornbrugh, 7

____________________________

F.3d 1471, 1475 (10th Cir. 1993) (Bright, J., dissenting).

As far as

the guidelines in

general are concerned,

believe

that their

greatest weakness

lies in

nature.

"A system that fails to consider the offender's personal

characteristics places too great

by

the offender's act

that

would serve

should have
bar to

to mitigate

harm caused

emphasis on circumstances

the punishment.

realized that it is

The

Commission

a person who stands

______

before the

accept the punishment imposed by

Ogletree, Jr.,

their mechanical

an emphasis on the

and too little

the court."

Charles J.

The Death of Discretion?

Reflecting on the
_________________________________________________

Federal Sentencing Guidelines, 101

_______________________________

Harv.

L.

Rev. 1938,

1953

(1988).
Unfortunately,

when

trial

judges

guidelines, appellate courts are fettered in

litigation.

As in this

depart

the

their review of the

case, they have little or no

16

from

choice but

to react to such departure in a rigid fashion.

In distinction to

one commentator, I feel they are "[unable] to balance the distant

______
guidance of a bureaucracy
the individual

against the detailed responsibility of

sentencer."

Daniel J.

Freed, Federal Sentencing

__________________

in the Wake of the Guidelines:

Unacceptable Limits on the
_________________________________________________________________
Discretion of Sentences,
_________________________
Furthermore,

find the

101 Yale

to be

historical

of judges

Incredibly, we now have

all

too often,

parameters.

as

1681,
by the

1730 (1992).

guidelines to

them to control the sentencing

entirely inappropriate

role

J.

authority given

United States Attorneys, enabling

process,

L.

and an

the final

invasion of

arbiters

the

of justice.

the inflexible prosecutorial mind which,

caters to

public passion,

"Discretionary

decisions

dictating sentencing
of

Assistant

U.S.

Attorneys,

both as to charges and as to factual allegations, can

powerfully

expand or

limit the

judge's ambit

for sentencing."

Id. at 1723.
__
I have struggled
voice my feelings.
of

experience

as a

with this case and feel

compelled to

My sense of justice and my twenty-eight years

district

court judge

sitting

in criminal

cases, preceded by five years as U.S. Attorney and thirteen years

as a state
actions

prosecutor, all lead me to believe that Judge Boyle's

in this case were absolutely correct.

as a judge,

drawing upon

his life experience

Judge Boyle acted

and his

judicial

experiences, making his decision

not simply by working the

provided

by balancing the

law

by the guidelines, but

upon an

individual human

being,

given that

grid

impact of the

human being's

17

particularized
He

circumstances, against the protection of society.

recognized the face behind the law.

He declined to function

merely as an automaton.
The

mandates of the

uniformity of

sentencing

guidelines may

but they

have accomplished

have done

so by

tragically

eroding the sacred function of a judge in the sentencing process.

This sacred function is
at times

a most complex, difficult,

undefinable burden, and

it must

nebulous and

always be met

in the

context of the unique setting at hand.

In considering this case, I have very seriously thought

about recusing myself

from all

future criminal cases.

found this decision an excruciatingly difficult one to

I have

chosen

established
litigation
824 (1972).

to

that

continue
a

judge's

to

hear criminal

view

does not require recusal.

on

the

cases.

subject

have

make, but
It

is

matter

of

Laird v. Tatum, 409 U.S.

_______________

The very nature of my criticism and reaction to this

case is abundant recognition of my duty to follow the rules where

there is no room for intellectually honest dissent.
I

believe passage of the

Enforcement

Act

of 1993

criminal caseload.
age

seventy, I

caseload.

When

vigorously and
will

may

seriously

Control and Law

increase this

court's

When I took senior status twelve years ago at

solemnly

declared that

the time comes

that I

end my judicial

would carry

can no longer

effectively as my younger

at that point

recusal would

pending Violent Crime

Furthermore,

a
do so

full

as

esteemed colleagues, I

service.

Thus, because my

significantly burden my colleagues,

and because I

18

recognize the
object

to

controlling nature of the guidelines

their substance,

choose

to maintain

even while I
a

criminal

docket.
With

the foregoing

statement, I

Judge Selya's well written opinion.

offer no

dissent to

19