United States v. Paster

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

4-19-1999

USA v. Paster

Precedential or Non-Precedential:

Docket 98-7270

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Filed April 19, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-7270

UNITED STATES OF AMERICA

v.

MITCHELL FREDERICK PASTER,

Appellant

On appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 96-cr-00221)

District Judge: Honorable Malcolm Muir

Argued December 15, 1998

Before: SLOVITER and COWEN, Circuit Judges,

and OBERDORFER, District Judge*

(Filed April 19, 1999)

Shalom D. Stone (Argued)

Walder, Sondak & Brogan

Roseland, NJ 07068

Attorney for Appellant

Wayne P. Samuelson (Argued)

United States Attorney's Office

Williamsport, PA 17703

Attorney for Appellee

_________________________________________________________________

*Hon. Louis F. Oberdorfer, United States District Court for the District

of Columbia, sitting by designation.

OPINION OF THE COURT

OBERDORFER, District Judge.

We here review sentencing decisions rendered by the

District Court below in a very troubling case of murder on

a federal reservation. On August 28, 1996, a federal grand

jury returned an indictment charging Mitchell Frederick

Paster with premeditated murder of his wife, Dr. Margaret

Bostrom, by stabbing her repeatedly with a butcher knife.

18 U.S.C. SS 7(3), 1111. At arraignment, Paster pled not

guilty, and later noticed his intention to plead insanity.

Thereafter, the government indicated that it would not seek

the death penalty authorized by 18 U.S.C. S 1111(b). On the

eve of trial, the government and Paster agreed that he

would plead guilty to second degree murder. At the hearing

preliminary to his acceptance of the plea, the District Judge

elicited from the probation officer and the prosecutor their

best estimate that, as of that time, Paster would face

imprisonment ranging from 168 to 210 months. After a

two-day presentence hearing, the District Court ordered

Paster confined for 365 months.

On this appeal, Paster challenges four aspects of the

sentencing decision: 1) denial of a downward departure on

account of Dr. Bostrom's allegedly provocative conduct; 2)

denial of a downward departure on account of Paster's

arguably aberrant behavior; 3) denial of an additional one-

level downward adjustment for Paster's alleged acceptance

of responsibility; and 4) imposition of a nine-level upward

departure for "extreme conduct." For the reasons stated

herein, we affirm the District Court with respect to issues

one and two, reverse with respect to issue three, and

remand for resentencing after the District Judge has an

opportunity to reconsider his resolution of issue four in

light of our opinion. See Koon v. United States, 518 U.S. 81,

98 (1996).

2

I.

The presentence investigation report ("PSR") and Paster's

testimony at the presentence hearing disclosed, and the

District Court found, that Paster and Margaret met in 1985

and married in 1994. At the time of the murder they lived

in Lewisburg, Pennsylvania, where she worked as a

psychologist at the United States Penitentiary. In the

months immediately preceding the August 1996 stabbing,

the couple experienced serious marital problems. One night

in July 1996, after Margaret went out with her supervisor

and did not come home, Paster left Lewisburg for his

parents' home in New Jersey. While there, Paster was

served on July 25 with divorce papers filed by his wife on

July 18.1 Thereafter the two reportedly reconciled by

telephone. However, on August 12, 1996, after Margaret

revealed that she was having an affair with her supervisor,

Paster returned to his parents' home.

After further efforts to reconcile, on the night of August

15 Paster returned home, only to find that his wife was not

there. According to him, she drove by their home on two

separate occasions that night. When she returned the

following morning, he confronted her about where she had

been. She apparently became upset, and telephoned the

warden at the Lewisburg Penitentiary, to whom Paster had

revealed the ongoing affair. Margaret handed Paster the

telephone receiver, and instructed him to retract his prior

statement to the warden. Paster told the warden that he

would not retract the statement, despite being pressured.

After hanging up the phone, Margaret mentioned that she

had a friend on the reservation who kept weapons at his

house, and that if Paster did not retract his statement she

would entice the friend "to do whatever she wanted." She

then told Paster that she had had between forty and fifty

affairs during their relationship, and planned to continue to

pursue the relationship with her supervisor. Thereupon she

went upstairs to take a shower, leaving Paster downstairs.

_________________________________________________________________

1. Paster's response to the filing was due August 15, 1996. He claims

that his wife told him that she planned to withdraw her request for a

divorce, but her lawyer reported having no knowledge of such plans.

3

At one point, Paster went outside and conversed with a

neighbor, who reported later that Paster was "very calm,

pleasant, and very soft-spoken." PSR at 9. Minutes later,

however, he went back inside, retrieved a knife from the

butcher block in the kitchen, proceeded upstairs, and then,

as Margaret emerged from the shower, stabbed her with the

knife numerous times. According to an autopsy report

prepared by Dr. Samuel Land, a forensic pathologist, she

died of multiple stab wounds to various vital organs.

Specifically, Dr. Land counted sixteen stab wounds -- nine

of which were life-threatening and six of which were to the

heart -- and eleven slash wounds indicative of defensive

action. Dr. Land also reported that one stab wound

completely penetrated Margaret's sternum, and that one

wound penetrated her body and the floor tile beneath her.

At the sentencing hearing, Dr. Land testified that

Margaret's death "was a very violent" one, and that it "was

one of the most severe cases I've seen." Appendix ("App.") at

189.

After the murder, Paster telephoned his mother at her

place of employment. He then called 911 and reported that

he had stabbed his wife in the chest. He told the emergency

operator his name, his telephone number, and his address,

and described the location of the bloody knife. He remained

on the phone until authorities arrived. First on the scene

were personnel from the Bureau of Prisons. He told them

that he had stabbed his wife and that she was in the

upstairs bathroom. The BOP personnel found her body in

the bathroom; she was lying naked on the floor in a pool of

blood -- dead.

Later that afternoon, agents of the Federal Bureau of

Investigation arrested Paster and took him to the Lewisburg

Penitentiary Training Center for questioning. Atfirst, he

said that he could not remember what happened upstairs;

later in the interview, however, he responded that he did

not want to talk about the events that had transpired.

According to a February 25, 1998 presentence investigation

report, he "remain[ed] unable to recall the actual murder,

but acknowledged his involvement in the offense." PSR at

10. Meanwhile, he filed, and the District Court denied, a

motion to suppress statements that he made to

4

investigators on the theory that the FBI agents induced his

statements by promising that he would be able to call his

mother.

In response to Paster's notice of an insanity plea, Dr.

Robert Sadoff, a psychiatrist, concluded after two

examinations that Paster "did not deliberate or premeditate

this killing," and that "[t]he outward explosion of violence

was atypical and foreign" for him. App. at 44. Dr. Sally

Johnson, Chief Psychiatrist for the Mental Health Division

at FCI Butner, concluded that "[t]here was no indication

that [Paster] had formulated any plan to harm his wife,"

and that his reported symptoms of memory loss were

consistent with dissociative amnesia. Id. at 60-61. Dr.

Sadoff further concluded that, in his opinion, there was no

insanity defense. Thereafter, on the eve of trial and

pursuant to the plea agreement, Paster pled guilty to

second degree murder, and the case entered its sentencing

phase.

In calculating Paster's sentence, the District Judge began

from the base offense level of 33 for second degree murder.

United States Sentencing Guidelines ("U.S.S.G.") S 2A1.2.

He then granted a two-level reduction for acceptance of

responsibility; denied enhancements for premeditation and

use of a weapon; imposed a nine-level upward departure for

extreme conduct; denied a downward departure for

aberrant behavior; denied a downward departure for

victim's conduct; and denied an additional one-level

reduction for acceptance of responsibility. The District

Court calculated an offense level of 40. Having no prior

criminal record, Paster was in criminal history category I,

and therefore subject to a guideline incarceration range of

292-365 months. The District Court imposed the maximum

for the offense level: 365 months, or thirty years and five

months. Paster appeals.

II.

Paster first argues that the District Court erred by

denying his motion for a downward departure pursuant to

S 5K2.10 of the guidelines. That section permits a

downward departure "[i]f the victim's wrongful conduct

5

contributed significantly to provoking the offense behavior."

U.S.S.G. S 5K2.10. Paster argued to the District Court that

his wife's revelation of past infidelity exposed wrongful

conduct and was the sole provocation for the fatal stabbing.

The District Court rejected Paster's argument, reasoning

that "[t]here is no confirmation of Paster's [sic] statements

as to any prior affairs," and that "[t]hose allegations even if

true do not indicate that the victim substantially provoked

her murder." United States v. Paster, 17 F. Supp.2d 345,

351 (M.D. Pa. 1998). Thus, the District Court wrote: "Even

though we have the authority to depart for victim

misconduct the conduct of the victim in this case does not

warrant a departure." Id. We review for clear error. United

States v. McQuilkin, 97 F.3d 723, 730 (3d Cir. 1996).

By its terms, S 5K2.10 hinges a departure on two criteria:

1) the victim must have committed "wrongful conduct;" 2)

and such conduct must have "contributed significantly to

provoking the offense behavior." The policy statement

instructs that

[i]n deciding the extent of a sentence reduction, the

court should consider: a) the size and strength of the

victim, or other relevant physical characteristics, in

comparison with those of the defendant; b) the

persistence of the victim's conduct and any efforts by

the defendant to prevent confrontation; c) the danger

reasonably perceived by the defendant, including the

victim's reputation for violence; d) the danger actually

presented to the defendant by the victim; and e) any

other relevant conduct by the victim that substantially

contributed to the danger presented.

U.S.S.G. S 5K2.10. By delineating these five factors, the

guidelines contemplates departures where the victim's

conduct posed actual, or reasonably perceived, danger to

the defendant, with emphasis on physical danger. Court

decisions confirm what the context of guideline S 5K2.10

implies: Generally only violent conduct, albeit wrongful,

justifies a downward departure. See Blankenship v. United

States, 159 F.3d 336, 339 (8th Cir. 1998), cert. denied,

1999 WL 8730 (Jan. 11, 1999) (affirming denial of

departure because while conduct was "wrongful," it was not

violent); see also United States v. Bigelow, 914 F.2d 966,

6

975 (7th Cir. 1990) (physical blocking of doorway was not

"sufficient physical contact to provoke the attack")

(emphasis added). Cf. United States v. Shortt, 919 F.2d

1325, 1328 (8th Cir. 1990) (embracing idea that "there's

hardly any greater provocation than to have someone

having an affair with your spouse").

The District Court denied a S 5K2.10 departure because

there was no danger or reasonable perception of danger to

Paster. Paster, 17 F. Supp.2d at 351. There is ample record

evidence to support the denial. First, Margaret's size and

strength posed no threat to Paster. Second, Paster himself

initiated the fatal confrontation. Third, the record contains

no suggestion that Margaret had a reputation for violence;

it was the District Court's prerogative to discount danger to

Paster from his wife's friend. In any event, all of the

circumstances -- Paster armed with a knife, attacking his

wife as she emerged from a shower -- demolish his victim

provocation claim.2

The foregoing considered, it was not necessary to decide

whether revelation of past infidelities, or the infidelities

themselves, could ever constitute such "wrongful conduct"

as to mitigate a sentence for murder. However, even if

Margaret's conduct, as revealed moments before the attack,

were wrongful within the meaning of S 5K2.10, Paster's

response was grossly disproportionate to any provocation.3

Shortt, 919 F.2d at 1328 ("A concern for the proportionality

of the defendant's response is manifested by the terms of

S 5K2.10."). See also Blankenship, 159 F.3d at 339; United

States v. Morin, 80 F.3d 124, 128 (4th Cir. 1996) (concern

_________________________________________________________________

2. This analysis easily distinguishes this case from United States v.

Yellow Earrings, 891 F.2d 650 (8th Cir. 1989), where the court of

appeals upheld a downward departure upon consideration of

uncontroverted evidence that the female defendant had refused the

victim's request to engage in sexual intercourse; that the victim was

considerably larger than the defendant; that the victim was intoxicated

and had a history of unpredictable conduct while intoxicated; and that

the defendant reasonably perceived a threat of danger. Id. at 651-54.

3. The District Court found that on earlier occasions Paster had learned

of his wife's infidelity, but that instead of reacting as if he were

physically endangered, he simply "left the marital residence to live with

parents." Paster, 17 F. Supp.2d at 349.

7

for proportionality "is evidenced by the factors that

S 5K2.10 instructs the court to consider"). Cf. United States

v. Dailey, 24 F.3d 1323, 1328 (11th Cir. 1994) (affirming

departure for defendant who did not physically harm the

victim); United States v. Tsosie, 14 F.3d 1438, 1442 (10th

Cir. 1994) (affirming departure for defendant who was

engaged in physical altercation with the victim).

Accordingly, we affirm denial of a downward departure

pursuant to S 5K2.10.

III.

Paster next challenges the District Court's refusal to

grant a downward departure for "aberrant behavior." See

U.S.S.G. Ch. 1, Pt. A, intro. comment P 4(d). This court

addressed that ground for departure in United States v.

Marcello, 13 F.3d 752 (3d Cir. 1994), decided before the

Supreme Court's landmark decision in Koon v. United

States, 518 U.S. 81 (1996). Embracing the formula that

originated from the Fourth, Fifth, and Seventh Circuits, the

Marcello court wrote that "[a]berrant behavior must involve

a lack of planning; it must be a single act that is

spontaneous and thoughtless, and no consideration is

given to whether the defendant is a first-time offender." Id.

at 761 (emphasis added). Marcello's construction followed

the Seventh Circuit's opinion in United States v. Carey, 895

F.2d 318, 325 (7th Cir. 1990):

A single act of aberrant behavior . . . generally

contemplates a spontaneous and seemingly

thoughtless act rather than one which was the result

of substantial planning because an act which occurs

suddenly and is not the result of a continued reflective

process is one for which the defendant may be

arguably less accountable.

Carey, 895 F.2d at 325 (emphasis added).

Invoking Marcello, the District Court found "indications

that the murder was spontaneous" and that there was

"insufficient evidence to show that Paster had planned the

killing of his wife." Paster, 17 F. Supp.2d at 351. However,

the District Court held that "the murder was not committed

in a thoughtless manner," because, the court found, "Paster

8

had ample time in the minutes preceding the stabbing to

think about whether to murder his wife," and "the number

of times Paster stabbed his wife indicates that he thought

about the act as it was being done." Id. The District Court

concluded that "[t]here is no authority to depart on the

basis of aberrant behavior under Marcello." Id.

Paster challenges the District Court's construction of the

term "thoughtless" as used by the Marcello court. According

to Paster, the District Court interpreted the term to mean

"without conscious thought" or "without intent," as

distinguished from "without prior thought," "not well

thought-out," or "without premeditation." Appellant's Brief

at 34-35. He argues that this construction of "thoughtless"

would render meaningless the concept of "aberrant

behavior" because most crimes entail a mens rea that

would preclude a finding of "thoughtlessness." Because

Paster argues that the District Court misinterpreted the

legal standard enunciated in Marcello, we exercise plenary

review. United States v. Sokolow, 91 F.3d 396, 411 (3d Cir.

1996). See also United States v. Marin-Castaneda, 134 F.3d

551, 554 (3d Cir. 1998), cert. denied, ___ U.S. ___, 118 S.

Ct. 1855, 140 L. Ed. 2d. 1103 (1998); United States v.

Grandmaison, 77 F.3d 555, 561 (1st Cir. 1996)

(undertaking plenary review because district court "adopted

the wrong standard").

We decline to upset the District Court's decision rejecting

departure. The District Court applied the correct legal

standard by properly focusing on the term "thoughtless,"

because Marcello made thoughtlessness a necessary

ingredient of aberrant behavior. 13 F.3d at 761. 4

_________________________________________________________________

4. The government argues that because Paster pled guilty to a crime

defined as one committed "willfully, deliberately, maliciously" and with

"malice aforethought," he necessarily is not eligible for a departure

based

on "thoughtless" activity. The government argues alternatively that

Paster does not qualify for a departure because infliction of sixteen stab

wounds and eleven slash wounds does not constitute "a single act"

within the meaning of Marcello. We need not reach the former argument

because we are satisfied that the District Court applied the proper

standard pursuant to Marcello, and we need not reach the latter

argument because the District Court's finding that Paster's conduct was

not "thoughtless" makes the single act issue redundant.

9

Specifically, the District Court found that Paster "had

ample time in the minutes preceding the stabbing to think

about whether to murder his wife," and that "the number of

times Paster stabbed his wife indicates that he thought

about the act as it was being done." Paster, 17 F. Supp.2d

at 351 (emphasis added). These penultimate findings amply

support the ultimate finding that the murder was not

"thoughtless." Nor does the failure of the District Court to

make an additional ultimate finding about a "continued

reflective process" constitute reversible error in the context

of this case. Marcello, 13 F.3d at 761 (quoting Carey, 895

F.2d at 325). The District Court's finding about the "ample

time in the minutes preceding the stabbing" and the

multiple stabbings convey the Marcello concept of a

continuum, as distinguished from a mere "opportunity to

consider [the] crime." Diss. Opp. at 28 (emphasis in

original). Also, the term "reflective" used in Marcello clearly

imports the concept of "thoughtful," the antonym of

"thoughtless." See Webster's Third New International

Dictionary 2381 (1971).5

In view of the foregoing, the District Court's finding that

Paster's conduct was not "thoughtless" was not clearly

erroneous, and its application of the Marcello standard

supported the conclusion that on these facts Paster was not

entitled to an aberrant conduct departure. Cf. Marcello, 13

F.3d at 761 (district court's decision "not to depart, after

applying the correct legal standard, is discretionary and

unreviewable"). Cases from other circuits that affirmed

denial of an aberrant behavior departure, and that pre-date

the Supreme Court's opinion in Koon, 518 U.S. 81, see,

e.g., United States v. Garlich, 951 F.2d 161 (8th Cir. 1991),

United States v. Glick, 946 F.2d 335 (4th Cir. 1991), do not

hold otherwise. Thus, the District Court's statement that it

had "no authority to depart on the basis of aberrant

_________________________________________________________________

5. The Marcello barrier to consideration in an aberrant behavior context

of whether subsequent violence is "out of character" or a "first offense,"

Marcello, 13 F.3d at 761 (quoting Carey, 895 F.2d at 325), precludes

consideration here of the apparent fact that Paster had no history of

domestic, or any other kind, of violence, and that indeed he had reacted

passively when his wife and her paramour separatelyflaunted their affair

before him. Cf. Diss. Op. at 30.

10

behavior under Marcello," Paster, 17 F. Supp.2d at 351,

may fairly be construed as nothing more than a conclusion

that the facts of this case applied to the principles

announced in Marcello do not qualify Paster for an aberrant

behavior departure. Accordingly, we affirm denial of a

departure for aberrant behavior.

We would reach the same result were we to test our

analysis by direct reference to Koon. Koon established that

a sentencing court considering a departure mustfirst ask,

"What features of this case, potentially, take it outside the

Guidelines' `heartland' and make of it a special, or unusual,

case?" 518 U.S. at 95 (citation omitted). Once a court

identifies a "special" feature, it is directed to assess whether

the Guidelines forbid, encourage, discourage, or fail to

mention a departure based on that feature. Id. at 95-96.

The answer to this second inquiry shapes the remaining

analysis:

If the special factor is a forbidden factor, the

sentencing court cannot use it as a basis for departure.

If the special factor is an encouraged factor, the court

is authorized to depart if the applicable Guideline does

not already take it into account. If the special factor is

a discouraged factor, or an encouraged factor already

taken into account by the applicable Guideline, the

court should depart only if the factor is present to an

exceptional degree or in some other way makes the

case different from the ordinary case where the factor

is present. If a factor is unmentioned in the Guidelines,

the court must, after considering the structure and

theory of both relevant individual guidelines and the

Guidelines taken as a whole, decide whether it is

sufficient to take the case out of the Guideline's

heartland. The court must bear in mind the

Commission's expectation that departures based on

grounds not mentioned in the Guidelines will be highly

infrequent.

Id. (citations and internal quotation marks omitted)

(emphasis added).

Aberrant behavior is an "unmentioned factor." See United

States v. Kalb, 105 F.3d 426, 429 (8th Cir. 1997). So here,

11

the District Court relied entirely upon the Marcello

definition of the term. Having determined that Paster's

behavior was not aberrant within the meaning of Marcello,

the District Court had no occasion to attempt to extrapolate

from "the structure and theory of both relevant individual

guidelines and the Guidelines taken as a whole" whether

Paster's behavior was "sufficient to take the case out of the

[second degree murder guideline's (S 2A1.2)] heartland."

Koon, 518 U.S. at 96. The District Court's analysis

therefore was consistent with both Marcello and with the

Koon Court's caution that departures relying on

unmentioned factors should be "highly infrequent." Id.

Accordingly, we affirm denial of a departure for aberrant

behavior.

IV.

Paster next argues that, even though the District Court

granted him a two-level adjustment for acceptance of

responsibility, it erred by denying his motion for an

additional one-level adjustment pursuant to S 3E1.1 of the

guidelines. That section provides that a defendant is

entitled to an additional one-level decrease if he qualifies

for a two-level decrease for acceptance of responsibility, his

offense level is sixteen or greater, and he

has assisted authorities in the investigation or

prosecution of his own misconduct by taking one or

more of the following steps: (1) timely providing

complete information to the government concerning his

own involvement in the offense; or (2) timely notifying

authorities of his intention to enter a plea of guilty,

thereby permitting the government to avoid preparing

for trial and permitting the court to allocate its

resources efficiently.

U.S.S.G. S 3E1.1(b) (emphasis added). There is no dispute

that Paster met the first two criteria of S 3E1.1: The District

Court awarded him a two-level reduction for acceptance of

responsibility and his offense level was greater than

sixteen. The District Court concluded, however, that Paster

did not qualify for the additional one-level reduction

because his decision to plead guilty after the jury was

12

selected did not constitute timely notification within the

meaning of S 3E1.1(b)(2). Paster, 17 F. Supp.2d at 353.

Paster appeals this determination. First, he argues that

although the District Court considered whether he timely

notified the government of his intent to plead guilty, it

failed to consider whether he timely provided complete

information concerning his involvement in the crime. Paster

argues further that his statements to the Bureau of Prisons

personnel who responded to his call to 911 support a

finding that he timely provided complete information

concerning his involvement in the crime -- and therefore

should have received the additional one-level reduction.

Because Paster contends that the District Court committed

legal error, we review de novo. United States v. Maurello, 76

F.3d 1304, 1308 (3d Cir. 1996).

We are persuaded that Paster has the better of this

argument. The third prong of S 3E1.1(b) is in the

disjunctive. United States v. Lancaster, 112 F.3d 156, 158

(4th Cir. 1997); United States v. Williams, 86 F.3d 1203,

1206 (D.C. Cir. 1996); United States v. Eyler, 67 F.3d 1386,

1391 (9th Cir. 1995). By its plain terms, it is satisfied if the

defendant "has assisted authorities in the investigation or

prosecution of his own misconduct by taking one or more of

the following steps: (1) timely providing complete

information to the government concerning his own

involvement in the offense; or (2) timely notifying

authorities of his intention to enter a plea of guilty . . . ."

U.S.S.G. S 3E1.1(b) (emphasis added). The District Court

considered only whether Paster satisfied the latter criterion,

not whether he satisfied the former. Paster, 17 F. Supp.2d

at 353. Accordingly, the District Court erred as a matter of

law by failing to apply S 3E1.1(b)'s disjunctive standard.

Maurello, 76 F.3d at 1308.

The government argues that even if the District Court

erred, Paster still is not entitled to the additional one-level

reduction because "throughout the investigation .. . and

continuing through his interview with the Probation Officer

. . ., [he] continually attempted to minimize his role in the

offense." Appellee's Brief at 27-28 (emphasis in original).

For example, the government alludes to evidence that

Paster initially told investigators that he did "not

13

remember" much of what happened -- belied, the

government says, by his admissions to the emergency

operator -- and that he "did not want to talk about it." Id.

at 28. The government also cites psychiatric reports and

the presentence investigation report, which purportedly

document that Paster attempted to ascribe blame for the

killing to his wife's revelation of infidelity.

The government's argument cannot cure the District

Court's failure to focus on and make findings with respect

to S 3E1.1(b)(1). See U.S.S.G. S 3E1.1 app. note 5. See also

United States v. Marroquin, 136 F.3d 220, 223 (1st Cir.

1998); United States v. Ortiz, 63 F.3d 952, 955-56 (10th

Cir. 1995). On the other hand, the record contains evidence

that supports an additional one-level reduction. For

example, the District Court found that Paster called 911,

reported that he had stabbed his wife, provided directions

to his home and the location of the weapon, remained on

the phone until authorities arrived, and cooperated with

authorities while the crime scene was investigated. Paster,

17 F. Supp.2d at 347-49. The District Court also concluded

that "Paster has never denied that he stabbed and killed his

wife." Id.6 While the District Court found that Paster "was

unable to remember many of the details of the murder"

when questioned by FBI agents, id. at 348, the

government's psychiatrist concluded that Paster suffered

from dissociative amnesia, App. at 60, an opinion that

supports a finding of genuine memory loss rather than

obdurate or unhelpful conduct. Finally, that the

government may have been able to learn of Paster's offense

independent of his assistance does not preclude an

additional one-level reduction, United States v. Stoops, 25

F.3d 820, 822-23 (9th Cir. 1994); neither does the fact that

Paster filed a motion to suppress. Id. The District Court's

findings establish that no reasonable trier of fact could

conclude that Paster was not entitled to an additional one-

level reduction. See, e.g., United States v. Eyler, 67 F.3d

1386, 1392 (9th Cir. 1995). Accordingly, we reverse and

_________________________________________________________________

6. This finding serves to distinguish this case from United States v.

Chee,

110 F.3d 1489 (9th Cir. 1997), where the court affirmed denial of the

additional one-point reduction because the defendant consistently denied

certain alleged conduct. Id. at 1494.

14

remand for Paster to be resentenced to reflect an additional

one-level reduction in his offense level.

V.

Paster's final, and most extensive, challenge is a multi-

pronged one to the nine-level upward departure pursuant

to Sentencing Guidelines S 5K2.8, "Extreme Conduct." That

section authorizes an upward departure "[i]f the defendant's

conduct was unusually heinous, cruel, brutal, or degrading

to the victim." U.S.S.G. S 5K2.8. The guideline explains that

"[e]xamples of extreme conduct include torture of a victim,

gratuitous infliction of injury, or prolonging of pain or

humiliation." Id. Here, after summarizing the evidence, the

District Court concluded that some "upward departure

based upon Paster's unusually heinous, cruel, and brutal

conduct is warranted." Paster, 17 F. Supp.2d at 349-50. It

then imposed a nine-level upward departure. Id. at 350.

The departure increased the adjusted guideline range from

108-135 months to 292-365 months. The top-of-the-range

365-month sentence actually imposed is 213.5 months

greater than the median of the range for base second

degree murder (135-168 months), to which Paster pled

guilty. As contemplated by then-Judge Becker's seminal

opinion in United States v. Kikumura, 918 F.2d 1084 (3d

Cir. 1990), we appraise the level of proof required by the

district court, the propriety of any departure, and the

reasonableness of its term. Id. at 1098.

A.

Paster first argues that the District Court erred by not

articulating and applying a clear and convincing burden of

proof to support the nine-level upward departure. In

support of this claim, Paster cites Kikumura, 918 F.2d

1084, which established that when a departure "is

sufficiently great that the sentencing hearing can be fairly

characterized as `a tail which wags the dog of the

substantive offense,' . . . the factfinding underlying that

departure must be established at least by clear and

convincing evidence." Id. at 1101 (quoting McMillan v.

Pennsylvania, 477 U.S. 79, 88 (1986)). See also United

15

States v. Murray, 144 F.3d 270, 275 (3d Cir. 1998), cert.

denied, ___ U.S. ___, 119 S. Ct. 254, 142 L. Ed. 2d 209

(1998). The government concedes that the magnitude of the

departure here imposed, compared to a base second degree

murder sentence, requires clear and convincing evidence,

and that the District Court did not expressly recite the clear

and convincing formula; it argues, nonetheless, that the

evidence met the requisite legal standard. We agree:

Incantation of the term "clear and convincing" was not

necessary on this record. Kikumura, 918 F.2d at 1104.

Paster contends that the District Court not only failed to

recite the proper standard; it failed to prove by clear and

convincing evidence that his conduct was unusually

heinous, cruel, brutal, or degrading to the victim. This

argument is unconvincing. Paster never repudiated his

prior admissions that he killed his wife. Nor did he dispute

the extensive and gory evidence concerning the killing,

including the expert pathologist's extensive and

uncontradicted testimony about the sixteen stab wounds,

the eight to nine penetrations of the heart area, and the

eleven incisive wounds that Paster inflicted on his wife.

Paster, 17 F. Supp.2d at 348-49. See App. at 189 ("This

was one of the most severe cases I've seen."). This

unchallenged evidence was clear and convincing proof of

"extreme conduct." Kikumura, 918 F.2d at 1101.7

B.

Paster next argues that the District Court erred by

enhancing his sentence for extreme conduct because the

Sentencing Commission regarded second degree murder,

per se, as unusually heinous, cruel, and brutal and

established guidelines that adequately punish perpetrators

on that assumption. According to Paster, the unusually

heinous, cruel, and brutal character of his conduct was

reflected in S 2A1.2, the guideline for second degree

_________________________________________________________________

7. Citing Beardshall v. Minuteman Press International, Inc., 664 F.2d 23,

26-27 (3d Cir. 1981), Paster argues that the District Court committed

plain error by not reciting the clear and convincing formula. In

Beardshall, the district judge failed to instruct the jury on the

applicable

burden of proof, quite a different matter.

16

murder, and in the offense level there established. His

argument finds tangential support in this court's

observation in Kikumura, 918 F.2d at 1118, that the

attempted murder guideline "plainly accounts for the fact

that attempted murder, by its very nature, involves heinous

conduct." Id. The government counters that the District

Court's specific factual findings support a determination

that by any definition Paster's conduct was unusually

heinous, cruel, and brutal. Again, we find ample support

for the government's position.

By now it is familiar that when a factor is an

"encouraged" basis for departure, the task of the sentencing

court is to determine whether that factor is taken into

account by the relevant guideline. Koon v. United States,

518 U.S. 81, 96 (1996). Unusually heinous, cruel, brutal, or

degrading conduct is an encouraged factor under S 5K2.8,

so the court below was obligated to assess whether

unusually heinous, cruel, brutal, or degrading conduct is

within the heartland of conduct encompassed by S 2A1.2.

Id. at 93-96. Ordinarily, a determination of "[w]hether a

given factor is present to a degree not adequately

considered by the Commission" will be made "in large part

by comparison with the facts of other Guidelines cases." Id.

at 98. Because of the "institutional advantage" of district

courts in making such factual determinations, appellate

courts accord considerable deference to their departure

decisions, limiting review on appeal to abuse of discretion.

Id. at 98-100.

We are satisfied that the District Court exercised

appropriate discretion in determining that Paster's conduct

was sufficiently more heinous than conduct that

constitutes the so-called "heartland" of second degree

murders. Id. at 93-94. The judge specifically noted, for

example, that Paster stabbed Margaret sixteen times with a

butcher knife, that eight or nine of the wounds penetrated

the heart area, that ten of the wounds were immediately

life-threatening, and that Paster also inflicted eleven

incisive wounds. Paster, 17 F. Supp.2d at 349. The judge

also observed photographs of the victim that "graphically

demonstrate the heinous and extreme nature of Paster's

crime." Id. While the judge did not compare Paster's case

17

with other second degree murders, the gripping detailed

testimony effectively demonstrates that Paster's crime was

unusually violent and brutal. We are satisfied that the

District Court did not abuse its discretion in deciding to

depart for extreme conduct. See United States v. Murray,

144 F.3d 270, 275 n.7 (3d Cir. 1998), cert. denied, ___ U.S.

___, 119 S. Ct. 254, 142 L. Ed. 2d 209 (1998).

C.

In approving an extreme conduct departure, we do not

overlook Paster's argument that the departure was literally

inappropriate because his conduct matched none of the

specific examples delineated by S 5K2.8:"torture of a

victim, gratuitous infliction of injury, or prolonging of pain

or humiliation." U.S.S.G. S 5K2.8. Paster argues that this

list of examples is exhaustive, citing United States v. Kelly,

1 F.3d 1137 (10th Cir. 1993). However, the Kelly court

ruled only that by articulating specific examples of

unusually heinous, cruel, brutal, or degrading conduct,

S 5K2.8 provides "objective standards for its application."

Id. at 1143. This is a far cry from a ruling that the three

examples listed in the guideline constitute the universe of

conduct condemned by that section. Indeed, the guideline

itself identifies these three examples as just that: non-

exclusive examples. ("Examples of extreme conduct include

. . . ." U.S.S.G. S 5K2.8 (emphasis added)). Paster's conduct

was extreme even if it was not specifically branded with one

of the three illustrative labels provided in S 5K2.8.

As a second prong of his challenge to the extreme

conduct finding, Paster argues that his crime was no more

heinous, cruel, or brutal than that recorded in six other

cases. As an example, Paster again cites Kelly, 1 F.3d 1137,

where the defendant choked the victim to unconsciousness,

beat the victim with a tire iron, struck the victim in the

neck with a jack handle, and dumped the victim's body in

a pond. Id. at 1138. See also United States v. Herrera, 70

F.3d 444, 445 (7th Cir. 1995); United States v. Anderson, 5

F.3d 795, 796-97 (5th Cir. 1993); United States v. Luscier,

983 F.2d 1507, 1509 (9th Cir. 1993); United States v.

Phillip, 948 F.2d 241, 244 (6th Cir. 1991); United States v.

Roberson, 872 F.2d 597, 600 (5th Cir. 1989). While one

18

cannot gainsay the brutality of the conduct perpetrated in

these cases, it hardly follows that Paster's conduct was less

deserving of being branded "extreme."

Even if true, however, the fact that other cases involved

conduct arguably more heinous, cruel, and brutal than

Paster's by no means proves that the District Court abused

its discretion by concluding that Paster's conduct was

outside the heartland of second degree murder cases.

Murray, 144 F.3d at 275 n.7. In fact, the judge made

explicit findings about the heinous, cruel, and brutal

nature of Paster's offense -- particularly supported by the

pathologist's testimony that it was one of the most severely

violent deaths he had ever documented, 17 F. Supp.2d at

349 -- thereby demonstrating an awareness of the relevant

standard and a commitment to undertake a departure only

when warranted. All of the foregoing considered, we affirm

the District Court's decision to enhance Paster's sentence

for extreme conduct.

D.

Having concluded that the District Court did not abuse

his discretion by awarding a departure for extreme conduct,

we turn to Paster's final argument: that the nine-level

upward departure, which increased by more than seventeen

years the applicable median sentence, was unreasonable.

The Sentencing Commission established a 243-month

spread between the median sentence for first degree

murder adjusted by a two-level reduction for acceptance of

responsibility (364.5) and the median sentence for second

degree murder adjusted for the same two-point reduction

(121.5).8 Yet the sentence levied in this second degree

murder case is equal to what would be a heavy first degree

murder sentence. This aspect of the sentence here imposed

gives us pause.

_________________________________________________________________

8. At base offense level 43, first degree murder carries a sentence of

life

imprisonment; adjusted two levels for acceptance of responsibility, the

crime yields an incarceration range of 324-405 months. Second degree

murder, which has a base offense level 33, produces an incarceration

range of 135-168 months; the range drops to 108-135 months when the

offense level is adjusted two levels for acceptance of responsibility.

19

"Our review of the sentencing court's decision in this

regard is deferential," United States v. Baird, 109 F.3d 856,

872 (3d Cir. 1997), cert. denied, ___ U.S. ___, 118 S. Ct.

243, 139 L. Ed. 2d 173 (1997), but this court relies upon

"objective standards to guide the determination of

reasonableness" -- including analogies within the

guidelines themselves, Kikumura, 918 F.2d at 1110-13, and

the guidance afforded by the statutory scheme that they

implement. In this case, the District Court concluded, and

both parties acknowledge, that "there are no provisions in

the guidelines which suggest an analogy from which to

determine the appropriate level of upward departure."

Paster, 17 F. Supp.2d at 350. Nor does our independent

search for such analogies yield a plausible one.9

Paster proposes as an alternative approach an increase of

the offense level by analogy to the defendant's criminal

history category. See, e.g., United States v. Ferra, 900 F.2d

1057, 1061-64 (7th Cir. 1990). He notes that even at

Category VI -- the maximum -- his pre-departure offense

level of 31 would yield an incarceration range of 188-235

months, some 104-130 months fewer than he actually

received.

We find the criminal history analogy inappropriate here.

As the Kikumura court observed, guidelineS 4A1.3 permits

a departure "[i]f reliable information indicates that the

criminal history category does not adequately reflect the

seriousness of the defendant's past criminal conduct or the

likelihood that the defendant will commit other crimes

. . . ." 918 F.2d at 1112. In this case, the government did

not argue, and the District Court did not find, that Paster's

criminal history category misrepresented the seriousness of

his past criminal conduct (there was no record of any), or

the likelihood that he would engage again in the arguably

_________________________________________________________________

9. For example, S 2A2.1 and S 2A2.12 of the guidelines fix 28 and 16 as

the base offense levels for assault with intent to commit murder and

aggravated assault, respectively. Each offense is subject to specific

upward adjustments for particular offense characteristics, such as five

levels for aggravated assault if a firearm is used. Neither these specific

offenses, nor the scheduled adjustments, provide a useful analogy to the

extreme conduct departure which is to be measured here.

20

aberrant conduct at issue here. Our appraisal of the record

confirms these conclusions.

Finding no acceptable analogy in the guidelines, the

District Court surveyed what it considered to be analogous

case law. The District Judge collected two cases that

approved five-level upward departures, see Herrera, 70 F.3d

444, Kikumura, 918 F.2d at 1113, one decision that

affirmed a ten-level upward departure, United States v.

Pergola, 930 F.2d 216 (2d Cir. 1991), and one that upheld

an eleven-level upward departure, Roberson, 872 F.2d 597.

From these raw numbers ranging from five to eleven the

District Court extrapolated nine. Paster argues that the

four cases cited by the District Court are inapposite

because they involved more severe offenses, and because

the upward departures were based only in part on the

respective defendants' "extreme conduct." The government

defends the District Court's approach, and at oral

argument directed us to United States v. Morrison, 153 F.3d

34 (2d Cir. 1998), where the court upheld a fourteen-level

upward departure.

Guidelines construct a bare framework for sentencing

decisions, and the interstices permit courts to use a

common law approach to fashion particular sentences.

However, notwithstanding the substantial deference owed

the District Court, we have two problems with the case law

methodology used here. First, the District Court cited the

several cases without critical analysis of the particular

extreme conduct and other grounds for departure in those

cases compared with the nine-level departure here solely for

extreme conduct; the District Court simply concluded"that

a nine level upward departure for Paster's extremely brutal

conduct is warranted." Paster, 17 F. Supp.2d at 350.

We question whether on closer analysis extrapolation

from the sentences imposed in the four cases referenced by

the District Court -- and the fifth cited by the government

at oral argument -- would support a nine-level extreme

conduct departure here. For example, in Roberson, 872

F.2d 597, the court affirmed an eleven-level departure, but

recognized that the district court based the upward

departure on three discrete grounds, only one of which was

extreme conduct pursuant to S 5K2.8. Id. at 602. See also

21

Morrison, 153 F.3d at 51 (affirming fourteen-level departure

that was an accumulation of separate two- and three-level

enhancements linked to consequences suffered by ten

different victims). The Pergola court approved a ten-level

departure based, not upon "extreme conduct" (S 5K2.8), but

upon "extreme psychological injury" (S 5K2.3). Pergola, 930

F.2d at 218. Finally, both Kikumura and Herrera involved

upward departures that were only five levels, and

authorized by more than one guideline. Kikumura, 918 F.2d

at 1119; Herrera, 70 F.3d at 447. We are not satisfied that

these cases adequately justify the nine-level upward

departure at issue here.

There remains the question raised by the convergence of

the sentence imposed here with the guidelines' prescription

for first degree murder. To recapitulate, Paster was indicted

for first degree murder, the elements of which are "the

unlawful killing of a human being with malice

aforethought." 18 U.S.C. S 1111(a). After the District Court

denied Paster's suppression motion, Paster agreed to, and

the court accepted, a plea of guilty to second degree

murder. The guilty plea spared Paster, his family, the

family of his late wife, the government, and the court from

the anguish which trial of this ugly case would have

entailed; it also reduced the severity of the applicable

sentence range to which Paster was exposed. See 18 U.S.C.

S 1111(b). See also U.S.S.G. SS 2A1.1, 2A1.2. In the

colloquy about the plea agreement, the probation officer

and the government advised that the likely sentencing

range would be 168-210 months, a range consistent with

base second degree murder and a two-level enhancement.

Tr. of hearing of 11/19/97, at 13-14.

The statutory maximum for both first and second degree

murder is life imprisonment, except that in special

circumstances the death penalty may be imposed upon a

person convicted of first degree murder. 18 U.S.C.

S 1111(b). However, the guideline range for a defendant

guilty of first degree murder with a criminal history of I

who, after a two-point reduction for acceptance of

responsibility has an offense level of 41, is 324-405 months

imprisonment. The guideline range for a defendant guilty of

second degree murder with a criminal history of I and a

22

two-point reduction for acceptance of responsibility is 108-

135 months imprisonment.

A prime objective of the Sentencing Guidelines was to

eliminate or, at least reduce, disparity in the sentencing of

similarly situated defendants. See U.S.S.G. Ch. 1, Pt. A, 3.

As the Sentencing Commission has stated, "Congress

sought reasonable uniformity in sentencing by narrowing

the wide disparity in sentences imposed for similar criminal

offenses committed by similar offenders." Id. As a corollary

of this guideline policy, however, the Commission

recognized that defendants differently situated should

suffer different sentences because "Congress sought

proportionality in sentencing through a system that

imposes appropriately different sentences for criminal

conduct of differing severity." Id. See also United States v.

Katora, 981 F.2d 1398, 1411 n.12 (3d Cir. 1992) (Becker,

J., concurring in part and dissenting in part) ("The notion

of disparity comprehends not only treating similarly

situated defendants differently, but also treating defendants

who are dissimilarly situated in some relevant way the

same."). "Often the best way to test whether a particular

degree of departure is appropriate is to use other provisions

of the Guidelines as benchmarks." Herrera, 70 F.3d at 446.

The vice of the nine-level upward departure imposed on

Paster is that he has incurred for second degree murder a

sentence that would be appropriate for first degree murder

adjusted two levels for acceptance of responsibility. Thus, if

the government had required Paster to plead guilty to first

degree murder in order to escape the death penalty, 10 and

he enjoyed a two-level reduction for acceptance of

responsibility (as he did here), he would have faced a

sentence in the range of 324-405 months,11 the median of

_________________________________________________________________

10. While the record reflects only that the government ultimately decided

not to seek the death penalty, see App. at 119-20, 319, it had statutory

authority to do so. 18 U.S.C. S 1111(b).

11. First degree murder carries a base offense level of 43; assuming a

two-level reduction for acceptance of responsibility, an offense level of

41

yields a sentence of 324-405 months for a defendant in criminal history

category I. The applicable range would drop to 292-365 months if a

three-point reduction for acceptance of responsibility were awarded. See

supra IV.

23

which is the actual sentence that Paster received. 12 This

lack of disparity between Paster's actual sentence and one

he could have received had he pleaded guilty to, or been

convicted of, a more serious crime distorts proportionality,

a critical objective of the Sentencing Guidelines. See

U.S.S.G. Ch. 1, Pt. A, 3.

VI.

Accordingly, we will affirm the District Court's denial of

departures for aberrant behavior and victim provocation.

However, we will remand for resentencing to reflect an

additional one-level reduction for acceptance of

responsibility. We also will remand with directions to the

District Court to reconsider the nine-level upward

departure for extreme conduct after closer examination of

the relevant court decisions and for consideration of the

proportionality concerns raised by the coincidence of the

second degree murder sentence and the prescribed

sentence for first degree murder.

_________________________________________________________________

12. Had Paster pursued an insanity defense, as he originally intended,

been convicted of first degree murder, and received a two-point reduction

for acceptance of responsibility, he likewise would have been exposed to

an incarceration range of 324-405 months. See U.S.S.G. S 3E1.1,

comment 2 ("Conviction by trial . . . does not automatically preclude a

defendant from consideration for [an acceptance of responsibility]

reduction."). See also United States v. Fells, 78 F.3d 168, 172 (5th Cir.

1996); United States v. Barris, 46 F.3d 33, 35 (8th Cir. 1995)

("[D]efendant who goes to trial on an insanity defense, thus advancing an

issue that does not relate to his factual guilt, may nevertheless qualify

for an acceptance-of-responsibility reduction").

24

SLOVITER, Circuit Judge, concurring.

I join in Parts I through IV of the opinion. I also concur

in Part V, but note that I would ordinarily agree with the

government with respect to the nine-level upward

departure. The District Court's decision to depart is entitled

to great deference. As the Court stated in Koon v. United

States, 518 U.S. 81 (1996), "[a] district court's decision to

depart from the Guidelines . . . will in most cases be due

substantial deference, for it embodies the traditional

exercise of discretion by a sentencing court." Id. at 98. See

also United States v. Kikumura, 918 F.2d 1084, 1110 (3d

Cir. 1990). However, here the majority has raised an issue

as to the relationship between the Guideline governing first-

degree murder and that governing second-degree murder

that fairly requires some further attention by the District

Court. Therefore, I concur with its decision to remand, as

long as it is understood that the District Court retains the

discretion to depart upwards nine levels again should it

fully explain why it determined to do so.

25

COWEN, Circuit Judge, concurring in part, and dissenting in

part.

I join in all of the majority's opinion except for Part III,

which affirms the District Court's denial of Paster's motion

for a downward departure based on aberrant behavior.

Because the District Court's refusal to depart on that

ground was predicated on a misapprehension of the

applicable legal standard for an aberrant behavior

departure, I would remand for re-sentencing so that the

District Court could reconsider the motion under the

correct standard.

In United States v. Marcello, 13 F.3d 752 (3d Cir. 1994),

this court, consistent with every other circuit court to have

considered the issue, recognized that the Guidelines permit

a sentencing court to downwardly depart in a case where a

defendant's criminal conduct can fairly be characterized as

a "single act[ ] of aberrant behavior." Id. at 760 (quoting

U.S.S.G. Ch. 1, Pt. A, intro. comment P 4(d)). The courts of

appeal are not in agreement, however, as to the correct

definition of aberrant behavior. A minority of circuits have

adopted a "totality of the circumstances test" that, as its

name implies, allows a sentencing court to consider a

multitude of factors, including a defendant's lack of a

criminal record and his prior good deeds, in assessing

whether a downward departure for aberrant behavior is

appropriate. See Zecevic v. United States Parole

Commission, 163 F.3d 731, 734-35 (2d Cir. 1998); United

States v. Grandmaison, 77 F.3d 555, 564 (1st Cir. 1996).1

Under the totality test, as explained by its proponents,

" `when all is said and done, the conduct in question must

truly be a short-lived departure from an otherwise law-

abiding life.' " Id. at 735 (quoting United States v. Colace,

126 F.3d 1229, 1231 (9th Cir. 1992)).

_________________________________________________________________

1. The Zecevic court listed the following factors that courts have

considered in applying totality of the circumstance test: "(1) the

singular

nature of the criminal act; (2) the defendant's criminal record; (3)

psychological disorders form which the defendant was suffering at the

time of the offense; (4) extreme pressures under which the defendant

was operating; (5) letters from friends and family expressing shock at the

defendant's behavior; and (6) the defendant's motivations in committing

the crime." 163 F.3d at 735.

26

We considered and rejected the totality approach in

Marcello. We reasoned that a defendant's criminal history,

or lack thereof, is already incorporated into the Guidelines'

sentencing formula, and that it would be inappropriate to

factor it in once again under the guise of aberrant behavior.

Marcello, 13 F.3d at 761.2 Instead, we adopted the majority

view, first articulated by the Seventh Circuit in United

States v. Carey, 895 F.2d 318, 325 (7th Cir. 1990), which

focuses the aberrant behavior inquiry on the criminal

conduct itself, not on a defendant's "high standing in the

community and his lack of prior conviction." Carey, 895

F.2d at 324. Under this approach, a sentencing court

considering an aberrant behavior departure must decide

whether a defendant's criminal behavior was " `a

spontaneous and seemingly thoughtless act rather than one

which was the result of substantial planning.' " Marcello, 13

F.3d at 761 (quoting Carey, 895 F.2d at 325). The reason

for focusing on whether a defendant's criminal act is

spontaneous and unplanned is that " `an act which occurs

suddenly and is not the result of a continued reflective

process is one for which the defendant may be arguably

less accountable.' " Id. Applying this standard in Marcello,

we affirmed the district court's conclusion that the

defendant, who over a one-week period structured bank

deposits to evade currency transaction reporting

requirements, was not entitled to an aberrant behavior

departure because some pre-planning was required to

commit the offense. Id. Similarly, in Carey, the Seventh

Circuit held that an aberrant behavior departure was not

allowed where the defendant had engaged in a check-kiting

scheme over a fifteen-month period. 895 F.2d at 324 35.

See also United States v. Glick, 946 F.2d 335 (4th Cir.

1991) (no aberrant behavior departure where defendant

sent five separate letters containing misappropriated

information over the course of ten weeks); United States v.

Garlich, 951 F.2d 161 (8th Cir. 1991) (no aberrant behavior

_________________________________________________________________

2. This conclusion has since been bolstered by the Supreme Court's

recognition in Koon v. United States, 518 U.S. 81, 113 (1996), that the

Guidelines specifically prohibit a downward departure on the ground

that a Criminal History Category I fails to reflect a particular

defendant's

low likelihood of recidivism.

27

where defendant planned and executed a fraudulent

financing scheme over a one-year period).

In stark contrast to those cases, all of which involved

offenses that had been planned for days, weeks or even

months, in this case the District Court found as a matter

of fact that "[u]p until a few minutes prior to the stabbing,

Paster had no plan to kill his wife." Paster, 17 F. Supp. 2d

345, 348 (M.D. Pa. 1998). The court also noted that "there

are indications that the murder was spontaneous." Id. at

351. Despite these findings, however, the District Court

concluded that it did not have the authority to depart for

aberrant behavior. The court explained:

The murder was not committed in a thoughtless

manner. Thoughtlessness is an essential element

under Marcello, Thoughtfulness [sic] is missing in this

case. Paster had ample time in the minutes preceding

the stabbing to think about whether to murder his

wife. Further, the number of times Paster stabbed his

wife indicates that he thought about the act as it was

being done. There is no authority to depart on the

basis of aberrant behavior under Marcello. We will deny

Paster's request for a departure on the basis of

aberrant behavior.

Id.

The problem with this reasoning is that, under the

District Court's definition of the term "thoughtless," a

defendant who has any opportunity to consider his crime,

no matter how fleetingly, would be ineligible for a departure

based on aberrant behavior. Were this a correct statement

of law, however, there would be no point in having an

aberrant behavior departure in the first place because no

defendant would ever qualify for it, save perhaps a

hypothetical one concocted for a law school examination. In

real life, those who commit crimes almost always have

some opportunity, even if for only a minute or two, but

typically much longer than that, to consider their actions.

See Zecevic, 163 F.3d at 734 ("If actions taking place over

such a short period can be deemed to include sufficient

planning and preparation to remove them from the realm of

the `spontaneous and thoughtless,' this standard is limited

indeed.").

28

Consider, for instance, the defendant in United States v.

Russell, 870 F.2d 18 (1st Cir. 1989), a case which is often

cited as an "excellent example" of aberrant behavior,

particularly among those courts employing the

"spontaneous and thoughtless" test. See , e.g, Carey, 895

F.2d at 325. The defendant was a Wells Fargo armored

truck driver and his partner was the truck's messenger. A

bank mistakenly gave the pair an extra bag of money

containing $80,000, which both men, yielding to

temptation, decided to keep for themselves. A week later,

however, Russell confessed the crime, returned the money

that he had kept, and cooperated with authorities. Under

the definition of "thoughtless" adopted by the District

Court, Russell would have been ineligible for an aberrant

behavior departure because he undoubtedly had some

opportunity, though perhaps not very long, to contemplate

whether or not to keep the bank's money.

In my view, the "spontaneous and thoughtless" test does

not require sentencing courts to literally determine whether

a defendant, at any time prior to his offense, had time to

think about his criminal conduct. The answer to that

question will invariably be yes. Instead, the test asks more

generally whether the defendant's crime was the product of

planning and deliberation or, as we stated in Marcello, "a

continued reflective process." 13 F.3d at 761 (quoting

Carey, 895 F.2d 325). If it was, then an aberrant behavior

departure will be unavailable. If it was not, a district court

should retain the discretion to depart. See United States v.

Winters, 105 F.3d 200 (5th Cir. 1997) (noting that "one

isolated assault" could be considered aberrant behavior,

but not a subsequent effort to conceal the offense by

coercing a witness to give false testimony). Applying that

test to the facts of this case -- where the defendant did not

plan the murder, the entire episode took place over the

course of no more than a few minutes, and the defendant

confessed to the crime within minutes of its commission

and made no attempt to conceal his culpability -- I would

hold that the District Court had the discretion to depart

based on aberrant behavior, and that the District Court's

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conclusion that it had "no authority" to award the

departure was an error of law necessitating a remand.3

The majority endorses the District Court's holding that

Paster is not eligible for an aberrant behavior departure

because he did not act in a "thoughtless" manner. In

particular, the majority relies on the District Court's

observations that Paster had time in the minutes preceding

the murder to think about his actions, and that Paster

stabbed his wife so many times that he must have been

thinking about the murder while he was committing it. Maj.

Op. at 8-9. In my view, neither of these reasons support the

conclusion that Paster did not act "thoughtlessly." As to the

latter, if a defendant who is conscious of his actions during

the commission of a crime is deemed not to have acted

aberrantly, then the departure will only be available to that

minuscule class of defendants who are liable for crimes

committed by involuntary reflex, and perhaps also to those

who are in a hypnotic state at the time of their offense.

Surely this is not what the Sentencing Commission or the

Marcello panel intended when they recognized that "single

acts of aberrant behavior" may justify a downward

departure. U.S.S.G. Ch. 1, Pt. A, intro. comment P 4(d).

That Paster may or may not have thought about whether to

murder his wife in the moments before the stabbing also

should not be a sufficient basis to disqualify him for an

aberrant behavior departure. The murder of Dr. Bostrom,

while undoubtedly a brutal and heinous crime, was

certainly not the product of any meaningful deliberation or

reflection on the part of Paster; to the contrary, all

_________________________________________________________________

3. The majority asserts that the District Court's statement that it had

"no

authority to depart on the basis of aberrant behavior under Marcello,"

Paster, 17 F. Supp. 2d at 351, did not really mean what it said (i.e.,

that

the District Court thought it lacked discretion to grant Paster's

downward departure motion). Instead, the majority posits, the statement

merely reflects the District Court's determination that "the facts of this

case applied to the principles announced in Marcello do not qualify

Paster for an aberrant behavior departure." Maj. Op. at 11. I cannot

agree. We must presume that the able and experienced District Judge

meant precisely what he said in concluding that he had "no authority"

to grant Paster's downward departure motion. The majority's effort to

recast the District Court's decision as an exercise of discretion strains

credulity.

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indications are that Paster acted spontaneously and in

response to a series of deeply painful revelations from his

wife. Under these circumstances, the majority's conclusion

that Paster failed to act in a "thoughtless" fashion can only

be justified by the most literal and wooden definition of that

term.

None of this is to say, however, that an aberrant behavior

departure was required in this case. Not every crime that is

committed spontaneously and without prior planning

merits a reduced sentence. If after analyzing the factual

record, for example, the District Court concluded that the

murder of Dr. Bostrom was the culmination of a long-

standing pattern of domestic violence on the part of Paster,

then a departure based on aberrant behavior would have

obviously been inappropriate. A departure would have also

been unwarranted if the District Court concluded that the

lack of planning in this case was sufficiently accounted for

by the base offense level for second-degree murder.

U.S.S.G. S 2A1.2; see generally Koon v. United States, 518

U.S. 81, 95-96 (1996). But the District Court never reached

these issues. It summarily concluded that it had "no

authority" under Marcello to depart because Paster's

criminal act was not committed in a "thoughtless" manner.

Because that conclusion was based on an erroneous and

overly restrictive understanding of the legal standard

governing an aberrant behavior departure, we should allow

the District Court to reconsider this issue at re-sentencing.

* * *

Finally, I offer a brief comment concerning the District

Court's grant of a nine-level departure for extreme conduct,

which nearly tripled the sentence that Paster received.

Judge Oberdorfer has carefully identified the reasons why

the structure of the Guidelines and the applicable case law

render the magnitude of that departure unreasonable. I

shall not repeat them here. I add only that at re-sentencing,

for those same reasons, the District Court should not again

impose a nine-level upward departure. While Judge Sloviter

is of course correct that the District Court's decision to

depart is entitled to great deference, it is equally true that:

A judge may not say: "I have decided to depart, so I

now throw away the guidelines." The guidelines are

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designed to bring openness and consistency to

sentencing, to even out the effects of different judges'

perspectives on desert and deterrence. . . . Unless there

is discipline in determining the amount of departure,

however, sentencing disparity will reappear.

United States v. Ferra, 900 F.2d 1057, 1061-62 (7th Cir.

1990) (citation omitted). In my view, the nine-level

departure imposed in this case is emblematic of the very

sentencing disparities that the Guidelines were designed to

counter. It should not be repeated.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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