USCA1 Opinion

November 7, 1994

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 94-1151
No. 94-1227
UNITED STATES OF AMERICA,
Appellant,
v.
GARY P. WLODYKA,
Defendant, Appellee.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, Senior U.S. District Judge]
__________________________
____________________
Before
Torruella, Chief Judge,
___________
Boudin and Stahl, Circuit Judges.
______________
____________________
Peter

E. Papps, First Assistant United States Attorney, with w

_______________
Paul M. Gagnon, United States Attorney, was on briefs for the Uni
______________
States.
Charles S. Temple, by Appointment of the Court, with w
___________________
Upshall, Cooper & Temple, P.A. was on brief for appellee.
_______ _____________________
____________________
____________________

Per Curiam.
___________

On January 26, 1990, a jury convicted Gary

Wlodyka of possession with intent to distribute marijuana and

cocaine.

21 U.S.C.

841(a)(1).

At sentencing, the district

judge concluded that the defendant had an offense level of 32

and a criminal history category
range

of 210 to 262

months.

of 6, generating a guideline
Departing

downward, the court

sentenced defendant to 168 months' imprisonment.

The

grounds

for

childhood, involving

the
the

departure included
suicide of

harrowing

one parent,

attempted

suicide by another, a stint in an orphanage, and finally rape

by an alcoholic stepfather

and continued physical and sexual

abuse; service in the Marine

Corps in Vietnam and subsequent

addiction to drugs (derived in part from treatment for injury

while

in service)

stress disorder;
In the

and

later

and present

treatment for

infection with the

HIV virus.

the court noted:

"overkill,

sentencing memorandum,

life sentence,

post-traumatic

defendant dying from

AIDS, Vietnam

veteran,

drug addicted."
On June 18,
have

an

denied the
June 27,

1990, Wlodyka asked

appeal filed
request as

on his

behalf.

untimely, and

1990, this court in an

the district court

The

to

district court

Wlodyka appealed.

On

unpublished order sustained

the

district court's action.

This court declined to pass on

the

claim that defendant had not been given timely notice of

-2-2-

his right to appeal, noting that relief on this ground should

be sought under 28 U.S.C.

After an

2255.

unsuccessful effort to reduce

his sentence by

motion under Fed. R. Crim. P. 35, a ruling summarily affirmed

by this court on
632

(1st Cir.

appeal, United States v. Wlodyka,

_____________
_______
1991)

under 28 U.S.C.
had failed at

(per curiam),

2255.
the time

He

ineffective assistance

claim

later rejected
in late

determined

court

advise him of

his

Fed. R. Crim. P. 32; he also

of

and not

1993 and

a motion

argued that the district

right to appeal, as required by

hearings

Wlodyka filed

of sentencing to

urged

953 F.2d

counsel at

appealed

early 1994,

sentencing,

by Wlodyka.

After

the district

court

that it had not complied with Rule 32 and granted

the defendant a new sentencing hearing.

On January 20, 1994, a new sentencing hearing

was held.

Defendant presented evidence, addressed

to the events in his

history

extensive

already

described,

evidence offered at the

district

court

gave

but

more

time of his original sentence.

Wlodyka

acceptance of responsibility, which

original sentence, and determined
capacity

as well as a

current HIV
sentenced

affliction.

than

two-point

reduction

for

that he had reduced mental

Departing downward,

the defendant to 100 months

-3-3-

The

had been withheld in the

serious medical condition

government now appeals.

the

due to his

the court then

of imprisonment.

The

On

appeal,

defendant

the

government

does

not

dispute

that

was entitled to be resentenced because of the Rule

32 violation but argues that the only remedy available to the

district court
reimpose it

was to vacate the original

in precisely the

sentence and then

same terms.

The government's

premise is that vacating the old sentence but then reimposing

the same sentence
would have had
given,

that

if the
is,

originally imposed.
second bite at

gives the

defendant just what

Rule 32 warning
right

to

had been

appeal

from

he or

she

originally

the

sentence

Anything more, says the government, is a

the apple

and a potential

windfall for

the

the natural

and

defendant.
In the

ordinary case,

adequate remedy is to vacate

But

being

unable

to

unwilling to establish

we

agree that

and reimpose the same sentence.

envisage every

possibility,

an ironclad, mechanical rule.

we

are

In any

event, this is certainly not a jurisdictional matter, and the

objection now

raised by the government

was not sufficiently

brought home to the district judge at or before resentencing.

Accordingly,

we think

that

the government

has waived

its

potential objection in this case.

At the original
main argument

section 2255 hearing, the

was that the

error had been

Wlodyka necessarily knew that

the

appeal

was

in

any

government's

harmless because

he had a right to

event

frivolous.

appeal, and
Although

the

-4-4-

government did refer briefly to the possibility of reimposing

the

same sentence,

this somewhat

the

district

buried assertion

judge

of

the

did not

clearly

apprise

government's

present

position that this was the most he could legally do.

At the

resentencing itself, the government's argument, which

was extensive and thorough, was directed to explaining why on

the merits no lower sentence was appropriate.
The

government's

next

claim

is

violates the law of the case doctrine.

that

the

reduction

The government points

to nothing specific that the district court said earlier from

which it is now departing.

the

Rule 35

motion

This court affirmed the denial of

without opinion

directly about the sentence.

district

and

has never

What has happened is

court,

on

somewhat

different

that

the

departure

should be

determined

spoken
that the

evidence,
larger

has

than

it

originally determined.
In all events, without suggesting
argument is frivolous, we
it.

As

discussed,

with

the

to the

think it is unnecessary to

limitation-of-remedy

we think that

claim squarely

the government did

attention of

cannot rely upon it on appeal.

make

timely

that the law of

references

in

case
pursue

issue

already

not bring this

the district

court and

Here, too, the government did

the

district

court

to

prior

rulings; but the suggestion that the district court was bound

-5-5-

by

law of

presented.

the

case does

not

seem to

have been

squarely

The

government's next

argument

is that

the

district

court erred at resentencing in granting a two-level reduction

for

acceptance of

declined
that

responsibility.

The district

court had

to do so at the original hearing because it thought

the

thought

defendant
that

it

had accepted

was

responsibility

barred from

granting

because Wlodyka was a career offender.

an

but

also

adjustment

The government agrees

that this was error and that the acceptance of responsibility

adjustment is available to Wlodyka if he otherwise qualifies.
We
merits

see no
of the

saying that

Wlodyka
made the

to discuss,

acceptance of

both sides

The sentence
guideline

reason

The

appear to have

statements.

technically an

acceptance of

beyond

colorable arguments.

knew precisely

own culpability and

Whether

the

on a departure from the

district judge

had said about his

even describe,

responsibility dispute

in this case was based

range.

or

Wlodyka's

what

when he had

statements

responsibility or fell

were
barely

short appears to have had no effect on the 100-month sentence

ultimately selected.
The

government's final

contention

is

kitchen-sink

argument that the entire departure was based on impermissible

grounds.
substantial

While the government

did not

appeal the

earlier

departure, its current position--it appears--is

-6-6-

that no departure at all is now justified.

is to

be reconciled with its

not explained.
the grounds

prior law of

In all events, the

cited or

How this position

case argument is

government concedes that

apparently considered by

court are for the most

the district

part "discouraged" but not prohibited

grounds for departure.

A

clear-cut

legal

issue

district court had based the

was legally impermissible.
that the court
trauma"

by the

similar

upbringing are

if

the
that

The government does in fact claim

to consider the

defendant

5H1.12, which provides in full:

and

presented

departure upon any ground

was not entitled

suffered

would be

circumstances

because

"childhood

of U.S.S.G.

"Lack of guidance as a youth

indicating

disadvantaged

not relevant grounds for

imposing a sentence

outside the applicable guideline range."

It is sufficient to

say

that the

catalogue of

horrors already

recited

go far

beyond lack of guidance and a disadvantaged upbringing.

Concluding that

the district court did not act upon any

specifically forbidden grounds, we are left with the question

whether

the district

court's

action

was unreasonable,

an

issue that is
18 U.S.C.
on

the

open to judicial review

3742(e)(3).
individual

under the Guidelines.

Although the issue depends very much

facts,

we

recognize

that

review

departures is contemplated by the statute and is

serve

a function.

With

this

in

mind,

we

of

intended to
have

looked

-7-7-

carefully at the transcript of the sentencing hearing setting

out evidence
explanation
searching

pertaining to Wlodyka and

for

its

action.

consideration,

we

Having
conclude

granted was not outside the bounds

the district court's

given
that

matter

departure

of reason and that it

time for this case to be brought to a close.

Affirmed.
________

the

the

is

-8-8-