United States Court of Appeals For the First Circuit

No. 99-2342

UNITED STATES OF AMERICA,

Appellee,

v.

ALAN LEE AMIRAULT,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Selya and Lipez, Circuit Judges,

and Casellas,* District Judge.

Bjorn Lange, Assistant Federal Public Defender, for appellant. Jean B. Weld, Assistant United States Attorney, with whom Paul M. Gagnon, United States Attorney, was on brief, for appellee.

August 18, 2000

____________ *Of the District of Puerto Rico, sitting by designation. SELYA, Circuit Judge. Defendant-appellant Alan Lee

Amirault pled guilty to possessing three items containing visual

depictions of minors engaged in sexually explicit conduct. See

(a)(4)(B) (1994) (current version at

(a)(4)(B)) (Supp. IV 1998)). After the district court

sentenced him to serve sixty months in prison, we vacated the

sentence. See United States v. Amirault,

(1st Cir.

1999). At resentencing, the district court corrected its

original error, departed upward under USSG §5K2.0, and imposed

a forty-six month incarcerative term.1 Amirault appeals anew,

this time contesting the upward departure. We affirm.

I

We review departure decisions for abuse of discretion.

See United States v. Brewster,

(1st Cir. 1997).

When a departure occurs under the aegis of section 5K2.0, we

mount a tripartite inquiry. "First, we determine as a

theoretical matter whether the stated ground for departure is

permissible under the guidelines. If the ground is

theoretically appropriate, we next examine whether it finds

adequate factual support in the record. If so, we must probe

1The court appropriately employed the 1998 edition of the United States Sentencing Guidelines. See United States v. Harotunian,

(1st Cir. 1990). All references herein are to that version.

-3- the degree of the departure in order to verify its

reasonableness." United States v. Dethlefs,

(1st Cir. 1997) (footnote and internal citations omitted).

In the case at hand, the lower court premised its

upward departure on a finding that the appellant had sexually

assaulted two of his sisters-in-law during their minority. The

appellant contests each of the elements of the Dethlefs inquiry.

We consider those three arguments seriatim. We then confront

the tag end of the appellant's asseverational array.

II

We deal expeditiously with the appellant's thesis that,

even if the sexual assaults occurred, they cannot support an

upward departure. This thesis rests on the premise that the

assaults happened many years before the offense of conviction

and, thus, were not "relevant conduct" under USSG §1B1.3. This

argument is a red herring.

In this case, the district court did not rest its

decision on a determination that the sexual assaults were

relevant conduct, but, rather, concluded that the acts warranted

an upward departure under section 5K2.0. In doing so, the court

drew an analogy to USSG §2G2.2, the guideline that deals with

trafficking in material involving the sexual exploitation of a

minor. One of the specific offense characteristics of the

-4- trafficking guideline mandates a five-level increase in the base

offense level "[i]f the defendant engaged in a pattern of

activity involving the sexual abuse or exploitation of a minor."

USSG §2G2.2(b)(4). The pattern of sexual abuse or exploitation

need not occur during the commission of the offense of

conviction in order to constitute this specific offense

characteristic. See id., comment. (n.1) (explaining that the

term "'[p]attern of activity involving the sexual abuse or

exploitation of a minor,'" as used in section 2G2.2(b)(4),

"means any combination of two or more separate instances of the

sexual abuse or sexual exploitation of a minor by the defendant,

whether or not the abuse or exploitation (A) occurred during the

course of the offense, (B) involved the same or different

victims, or (C) resulted in a conviction for such conduct").

This approach was sound. A sentencing court is free

to make suitable comparisons and draw plausible analogies in

considering whether to depart from the guideline sentencing

range. So it was here: although the guideline applicable to

the offense of conviction was section 2G2.4 (the possession

guideline), not section 2G2.2 (the trafficking guideline), see

Amirault,

, the district court was entitled to

examine factors set out in section 2G2.2(b) in order to evaluate

the appropriateness of a departure. Simply because a specific

-5- offense characteristic is listed explicitly in one guideline but

not another does not mean that the factor may not be relevant to

the departure calculus in respect to an offense under the latter

guideline. See USSG §5K2.0, p.s. Finding, as we do, that the

lower court permissibly drew this analogy to USSG §2G2.2(b)(4)

confirms the suitability of the court's use of the sexual

assaults (if proven) as the cornerstone of the envisioned

departure.

The appellant's theory — that the district court

somehow was obliged to forgo the analogy and shape any such

departure around the contours of the relevant conduct guideline

— is jejune. The relevant conduct guideline is not directed

specifically at section 5K2.0 departures. Rather, its purpose

is to determine adjustments to the base offense level, taking

into account a defendant's overall behavior. See United States

v. Sanders,

(1st Cir. 1992). Adjustments and

departures are different species, dissimilar both in purpose and

kind. See, e.g., United States v. Ortiz-Santiago,

(1st Cir. 2000). Not surprisingly, therefore, upward

departures are allowed for acts of misconduct not resulting in

conviction, as long as those acts, whether or not relevant

conduct in the section 1B1.3 sense, relate meaningfully to the

-6- offense of conviction. See United States v. Kim,

(2d Cir. 1990).

This is such a case. The sexual assaults that the

sentencing court found the appellant had committed were part of

a pattern of sexual exploitation of the minor sisters-in-law

that included, inter alia, the taking of approximately forty

nude photographs and their retention in his child pornography

collection (for his sexual gratification). These snapshots not

only memorialized the assaults but also meaningfully related

them to the possession offense. Even if, as the appellant

contends, the snapshots were not "sexually explicit" under

(2) (1994), they nonetheless demonstrated rather

convincingly his prurient interest in sexualized images of

children. In fact, he admitted to the police and to the court

below that he kept these particular pictures secret and

masturbated with them. Because the retained photographs link

the appellant's conduct during the offense of conviction to the

earlier assaults, the assaults constituted an allowable ground

on which to premise an upward departure.

Battling on, the appellant insists that there exists

a temporal limit — in his words, a "temporal wall" — that

precludes the use of past conduct for sentence-enhancement

purposes, and that these two-decade-old incidents are too

-7- distant in time. To further this argument, he notes that the

sentencing guidelines themselves contain time limits on the use

of past convictions, see USSG §4A1.2(e), and cites cases that

question the propriety, in particular circumstances, of basing

sentence enhancements on unrelated, remote convictions, see,

e.g., United States v. Aymelek,

(1st Cir. 1991).

Yet, as the sentencing guidelines and the cases recognize, the

appropriateness of a temporal limit depends heavily on the

circumstances of the particular case. For example, even though

the sentencing guidelines generally restrict the use of dated

convictions, they do allow the sentencing court leeway to

consider such convictions if they provide "evidence of similar,

or serious dissimilar, criminal conduct." USSG §4A1.2, comment.

(n.8).

For the crime of trafficking in child pornography, the

Sentencing Commission has specifically addressed the propriety

of basing an upward departure on a dated pattern or incident of

sexual abuse or exploitation. The most pertinent guideline

commentary teaches, with an exception that has no bearing here,

that "[i]f the defendant engaged in the sexual abuse or

exploitation of a minor at any time (whether or not such abuse

or exploitation occurred during the course of the offense or

resulted in a conviction for such conduct) . . . an upward

-8- departure may be warranted." Id. §2G2.2, comment. (n.2)

(emphasis supplied). Having accepted the district court's

analogy to section 2G2.2, we see no reason to disregard this

commentary. It follows inexorably that there was no legal error

in the lower court's determination that the sexual assaults,

although occurring long ago, nevertheless could bear the weight

of an upward departure under section 5K2.0.

III

The appellant couples his challenge to the

appropriateness of the departure-justifying circumstance with a

challenge to the very existence of that circumstance. In this

vein, he maintains that the district court clearly erred in

finding that he had sexually assaulted his two sisters-in-law.

The appellant bases this remonstrance primarily on the two-

decade delay in the victims' revelations and the timing of those

revelations (they surfaced shortly after the commencement of his

divorce proceedings). He marries this attack to an attack on

the reliability of his supposed admissions to the police, noting

that the reported statements were neither recorded nor submitted

to him for signature and, in all events, were made in the

immediate aftermath of the turmoil engendered by his arrest.

Viewed in the abstract, these counter-arguments present

a plausible (although not inevitable) scenario different from

-9- that discerned by the district court. But plausibility is not

enough to carry the day. We review a sentencing court's

factfinding deferentially, mindful of that court's superior

coign of vantage. See Koon v. United States,

(1996); United States v. Diaz-Villafane,

(1st

Cir. 1989). Give or take a few ruffles and flourishes, the

appellant hawks the same set of arguments here that he proffered

below. The sentencing court rejected those arguments, choosing

instead to credit the detailed accounts contained in the victim

impact statements and to take the appellant's initial admissions

of inappropriate contact at face value. The court found added

support for the occurrence of the sexual assaults in the

appellant's taking and retention of the nude photographs of his

sisters-in-law and credited the suggestion that the victims

failed to speak out earlier due to fear, shame, and

mortification.

There is no principled way that we can second-guess

these findings. Because the record adequately supports the

court's version of the controverted events, its rejection of the

appellant's subsequent disavowals cannot be clearly erroneous.

See United States v. Ruiz,

(1st Cir. 1990)

(stating that a sentencing court's determination cannot be

clearly erroneous "where there is more than one plausible view

-10- of the circumstances" and the court chooses among them). This

is especially so because the appellant's position hinges on

questions of credibility, and such questions are uniquely within

the competence of the sentencing court. See United States v.

Sandoval,

(1st Cir. 2000); United States v.

Conley,

(1st Cir. 1998).

IV

The appellant further contends that, even if the

district court had an appropriate, factually acceptable basis

for departing upward, the extent of the departure was excessive.

Because a sentencing court possesses considerable latitude in

fixing the degree of an unguided departure, contentions of this

sort usually face tough sledding in an appellate venue. This

case is no exception.

The court of appeals will interfere in the sentencing

court's determination of the extent of an unguided departure

only upon a showing that the court has committed a manifest

abuse of discretion. See Brewster,

. In this

instance, the magnitude of the departure, standing alone, is

unremarkable. Although the district court departed upward by

nineteen months to a point approximately seventy percent above

the maximum permitted under the applicable guideline sentencing

-11- range,2 we have upheld more onerous upward departures where the

circumstances warranted. See, e.g., United States v. Rostoff,

(1st Cir. 1995) (collecting cases). Here,

moreover, the court sufficiently explained the extent of the

departure by drawing an analogy to USSG §2G2.2(b)(4), which

provides for a five-level increase in the applicable offense

level if there is a pattern of activity involving the sexual

abuse of a minor. The court fortified this explanation by a

further analogy to USSG §2A3.1 (covering criminal sexual abuse),

which if directly applicable (i) would have dictated an offense

level of twenty-seven — six levels higher than that calculated

for the appellant, even after taking the upward departure into

account — and (ii) would have yielded a sentencing range of

seventy to eighty-seven months. See USSG Ch.5, Pt.A (sentencing

table). The appellant's riposte — that he was sentenced as if

he had sexually penetrated his sisters-in-law, notwithstanding

the absence of any evidence of penetration — is a blustery

effort to distract attention from what really happened. In all

events, the charge comprises rank conjecture, wholly unsupported

by the record.

2The appellant's pre-departure sentencing range topped out at twenty-seven months (offense level sixteen; criminal history category I). The lower court departed upward by five levels and imposed a forty-six month incarcerative sentence.

-12- V

The appellant has one more sheaf of arrows in his

quiver. He posits that the upward departure, even if otherwise

unimpugnable, violated his rights under the Ex Post Facto Clause

and the Due Process Clause. The government brands these claims

as waived.

We need not tarry over the waiver question. The

appellant raised this matched set of constitutional claims at

the original disposition hearing, but to no avail. He then

advanced them in his first appeal, but we found it unnecessary

to go down that road. See Amirault,

. Although

the appellant did not reassert the claims at resentencing, he

did not explicitly renounce them. We decline to find waiver in

these circumstances. Cf. United States v. Ticchiarelli,

(1st Cir. 1999) ("Our waiver doctrine does not

require that a defendant, in order to preserve his rights on

appeal, raise every objection that might have been relevant if

the district court had not already rejected the defendant's

arguments.").

From the appellant's standpoint, however, this is a

Pyrrhic victory. The law (or a judicial decree) violates the Ex

Post Facto Clause if it "changes the punishment, and inflicts a

greater punishment, than the law annexed to the crime, when

-13- committed." Calder v. Bull,

, 390 (1798).

The appellant asserts that the upward departure worked such a

violation because it increased his sentence based on conduct

that happened twenty years earlier (before the inception of the

federal sentencing guidelines and before the date on which

possession of child pornography became a federal offense).

This construct is ingenious, but incorrect. The

Supreme Court recently declared "consideration of information

about the defendant's character and conduct at sentencing does

not result in 'punishment' for any offense other than the one of

which the defendant was convicted." Witte v. United States,

(1995). Thus, to the extent that the sentence

imposed on the appellant inflicted a harsher punishment, it did

so not with respect to the earlier sexual assaults but, rather,

with respect to his current crime: the possession of child

pornography. It follows inexorably that no ex post facto

problem exists. See Gryger v. Burke,

(1948)

(reasoning to this effect in holding that an habitual offender

statute does not violate the Ex Post Facto Clause); United

States v. Regan,

(1st Cir. 1993) (noting that

"[t]he guidelines' criminal history provisions are routinely

applied to increase sentences based upon convictions that

-14- occurred before the guidelines were adopted"); see also United

States v. Forbes,

(1st Cir. 1994).

In a related vein, the appellant contends that the

upward departure unconstitutionally deprived him of a statute-

of-limitations defense and effectively increased his punishment

by the use of temporally remote conduct for which he could no

longer have been prosecuted. This argument is shopworn.

It is by now firmly settled that a sentencing court may

consider as relevant conduct acts which could not be

independently prosecuted because of the passage of time. See

United States v. Valenti,

(7th Cir. 1997)

(collecting cases); see also United States v. Dolloph,

(1st Cir. 1996) (explaining that a sentencing court may

consider, as relevant conduct, acts that are not within the

court's jurisdiction to try). We hold that the same principle

obtains in the realm of departures: a sentencing court may

consider as a ground for departure under USSG §5K2.0 conduct

that could not be independently prosecuted because of the

passage of time.

Finally, the appellant maintains that if the sentencing

guidelines allow consideration of the sexual assaults, their

application violates due process. The appellant is wrong.

-15- From the standpoint of due process, a district court

properly may consider uncharged conduct at sentencing (as long

as that conduct either is admitted or reliably proved by a

preponderance of the evidence). See Witte,

.

Even acquitted conduct may be so considered. See United States

v. Watts,

(1997) (per curiam); United States

v. Rodriguez,

(1st Cir. 1997); United States v.

Mocciola,

(1st Cir. 1989). Despite the

protracted length of time that passed between the sexual

assaults and the appellant's commission of the child pornography

offense, the Due Process Clause furnishes no basis for

prohibiting a sentencing court from assessing the impact of the

earlier conduct en route to determining the appropriateness vel

non of an upward departure.3

VI

3Although the appellant phrases this argument in terms of the sentencing guidelines, we note that the adoption of the guidelines did not materially alter a sentencing court's historic discretion to consider "'the fullest information possible concerning the defendant's life and characteristics.'" Watts,

(quoting Williams v. New York,

(1949)); see also

(1994) ("No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.").

-16- We need go no further. Because the appellant was

lawfully sentenced the second time around, the judgment below

will be

Affirmed.

-17-