United States v. Rosales, 82 F.3d 403, 1st Cir. (1996)
United States v. Rosales, 82 F.3d 403, 1st Cir. (1996)
3d 403
In United States v. Rosales, 19 F.3d 763 (1st Cir.1994), this court affirmed
defendant's conviction on four counts of abusive sexual conduct, in violation of
18 U.S.C. 2244(a)(1), but remanded for resentencing because of the district
court's failure to provide a rationale for the degree of upward departure
undertaken. On remand, the lower court again departed upward under U.S.S.G.
5K2.0 and again imposed a 120-month prison term. Defendant now advances
two principal challenges to his new sentence--insisting that (1) the imposition
In objecting to the upward departure, defendant does not contend that either of
the aggravating circumstances relied on by the district court was an improper
basis upon which to ground a departure.1 He does not assert that either factor
was factually unsupported. And he does not reiterate his earlier argument that
the degree of departure was unexplained. Instead, he insists simply that the
extent of the departure undertaken was unreasonable. We disagree.
The district court departed upward by eight levels and imposed a term of 120
months--a sentence representing a 110% increase over the applicable sentencing
range ceiling of 57 months. Such a departure, while substantial, cannot be
deemed anomalous; we have upheld departures of even greater magnitude on
various occasions. See, e.g., United States v. Rostoff, 53 F.3d 398, 411 (1st
Cir.1995) (reviewing cases in which upward departures representing increases
of from 165% to 380% over the respective GSR ceilings were deemed
reasonable). And the 120-month sentence was well short of the applicable 40year statutory maximum. Given these considerations, given the
"persuasive[ness]" of the district court's explanation for selecting the degree of
departure, United States v. Quinones, 26 F.3d 213, 220 (1st Cir.1994), and
given the "substantial leeway" that is accorded such a determination, United
States v. Pratt, 73 F.3d 450, 453 (1st Cir.1996), we are unprepared to say that
the court acted unreasonably.2
The court rested its decision to depart upward on two factors: the fact that four
additional victims were identified beyond those involved in the counts of
conviction, and the fact that most of defendant's victims were abused on
multiple occasions. It ended up adding four levels to account for each of these
concerns, for a total departure of eight levels
Defendant has listed some five other issues in his "statement of issues," but has
provided no argument with respect thereto. We therefore decline to address
them. See, e.g., McIntosh v. Antonio, 71 F.3d 29, 38 (1st Cir.1995)