United States v. Robert Donald Russell, 870 F.2d 18 (1st Cir. 1989). · Go Syfert
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United States v. Robert Donald Russell, 870 F.2d 18 (1st Cir. 1989). Cases Citing This Book View Copy Cite
“sprouse's claims based on the falsity of the charges and the 19 impropriety of babcock's involvement in the grievance procedure, standing alone, do not state 20 constitutional claims.”
143 citation events (26 in the last 25 years) across 16 distinct courts.
Strongest positive: (PC) Mendiola v. Covello (caed, 2025-07-01)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Statutes interpreted (leading-cases list)
#2 18 U.S.C. § 3553(b) cited 1× in this case · 21 total citations of statute
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) (PC) Mendiola v. Covello
E.D. Cal. · 2025 · signal: accord · quote attribution · 1 verbatim quote · confidence high
sprouse's claims based on the falsity of the charges and the 19 impropriety of babcock's involvement in the grievance procedure, standing alone, do not state 20 constitutional claims.
discussed Cited as authority (rule) United States v. Askew
6th Cir. · 2004 · confidence medium
In the absence of ambiguous statements by the district court concerning its discretion, there is a presumption that the court was aware of the law it was called upon to apply, United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989), and it should be assumed that the court, in the exercise of its discretion, found the downward departure unwarranted.
discussed Cited as authority (rule) United States v. Cruz
6th Cir. · 2004 · confidence medium
In the absence of ambiguous statements by the district court concerning its discretion, there is a presumption that the court was aware of the law it was called upon to apply, United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989), and it should be assumed that the court, in the exercise of its discretion, found the downward departure unwarranted.
discussed Cited as authority (rule) United States v. Fields
6th Cir. · 2004 · confidence medium
In the absence of ambiguous statements by the district court concerning its discretion, there is a presumption that the court was aware of the law it was called upon to apply, United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989), and it should be assumed that the court, in the exercise of its discretion, found the downward departure unwarranted.
discussed Cited as authority (rule) United States v. Fork
6th Cir. · 2004 · confidence medium
In the absence of ambiguous statements by the district court concerning its discretion, there is a presumption that the court was aware of the law it was called upon to apply, United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989), and it should be assumed that the court, in the exercise of its discretion, found the downward departure unwarranted.
discussed Cited as authority (rule) United States v. Ector
6th Cir. · 2004 · confidence medium
In the absence of ambiguous statements by the district court concerning its discretion, there is a presumption that the court was aware of the law it was called upon to apply, United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989), and it should be assumed that the court, in the exercise of its discretion, found the downward departure unwarranted.
cited Cited as authority (rule) United States v. Jacobs
6th Cir. · 2004 · confidence medium
United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989), and it should be assumed that the court, in the exercise of its discretion, found the downward departure unwarranted.
discussed Cited as authority (rule) United States v. Lillard
6th Cir. · 2003 · confidence medium
In the absence of ambiguous statements by the district court concerning its discretion, there is a presumption that the court was aware of the law it was called upon to apply, United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989), and it should be assumed that the court, in the exercise of its discretion, found the downward departure unwarranted.
discussed Cited as authority (rule) United States v. Garcia
6th Cir. · 2003 · confidence medium
In the absence of ambiguous statements by the district court concerning its discretion, there is a presumption that the court was aware of the law it was called upon to apply, United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989), and it should be assumed that the court, in the exercise of its discretion, found the downward departure unwarranted.
discussed Cited as authority (rule) United States v. Smith
6th Cir. · 2003 · confidence medium
In the absence of ambiguous statements by the district court concerning its discretion, there is a presumption that the court was aware of the law it was called upon to apply, United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989), and it should be assumed that the court, in the exercise of its discretion, found the downward departure unwarranted.
discussed Cited as authority (rule) United States v. Hassan
6th Cir. · 2003 · confidence medium
In the absence of ambiguous statements by the district court concerning its discretion, there is a presumption that the court was aware of the law it was called upon to apply, United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989), and it should be assumed that the court, in the exercise of its discretion, found the downward departure unwarranted.
discussed Cited as authority (rule) United States v. Rodriguez
1st Cir. · 2003 · confidence medium
Often it is clear enough from other remarks or the surrounding circumstances which meaning the district court intended, e.g., United States v. Le-Blanc, 24 F.3d 340 (1st Cir.1994), cert. denied, 513 U.S. 896 , 115 S.Ct. 250 , 130 L.Ed.2d 172 (1994); but where there is serious doubt, often the remedy is to remand, United States v. Russell, 870 F.2d 18, 20-21 (1st Cir.1989), unless the ground or grounds asserted are categorically unavailable and a remand would be a waste of time.
discussed Cited as authority (rule) United States v. Rodriquez
1st Cir. · 2003 · confidence medium
Often it is clear enough from other remarks or the surrounding circumstances which meaning the district court intended, e.g., United States v. LeBlanc, 24 F.3d 340 (1st Cir.1994), cert. denied, 513 U.S. 896 , 115 S.Ct. 250 , 130 L.Ed.2d 172 (1994); but where there is serious doubt, often the remedy is to remand, United States v. Russell, 870 F.2d 18, 20-21 (1st Cir.1989), unless the ground or grounds asserted are categorically unavailable and a remand would be a waste of time. 15 In this instance, one might conjecture that the district court thought that the three reasons offered were availabl…
discussed Cited as authority (rule) United States v. Garcia-Ortiz
5th Cir. · 2002 · confidence medium
In light of the ambiguity in the record, the best course is to remand the case for reconsideration of the sentence. 5 See, e.g., United States v. Aguilar-Ramirez, No. 00-50889, at 4, 264 F.3d 1141 (5th Cir. June 22, 2001) (unpublished) (holding that remand is required where the record is confusing); United States v. Russell, 870 F.2d 18, 20-21 (1st Cir.1989) (remanding the case'for clarification when it was not clear whether the district court knew that it had the power to depart downward from the sentencing guidelines).
discussed Cited as authority (rule) United States v. Dockery
6th Cir. · 2002 · confidence medium
In the absence of ambiguous statements by the district court concerning its discretion, there is a presumption that the court was aware of the law it was called upon to apply, United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989), and it should be assumed that the court, in the exercise of its discretion, found the downward departure unwarranted.
discussed Cited as authority (rule) United States v. Morris
6th Cir. · 2002 · confidence medium
In the absence of ambiguous statements by the district court concerning its discretion, there is a presumption that the court was aware of the law it was called upon to apply, United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989), and it should be assumed that the court, in the exercise of its discretion, found the downward departure unwarranted.
discussed Cited as authority (rule) United States v. Smith
6th Cir. · 2001 · confidence medium
In the absence of ambiguous statements by the district court concerning its discretion, there is a presumption that the court was aware of the law it was called upon to apply, United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989), and it should be assumed that the court, in the exercise of its discretion, found the downward departure unwarranted.
discussed Cited as authority (rule) United States v. Velasquez
6th Cir. · 2001 · confidence medium
In the absence of ambiguous statements by the district court concerning its discretion, there is a presumption that the court was aware of the law it was called upon to apply, United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989), and it should be assumed that the court, in the exercise of its discretion, found the downward departure unwarranted.
discussed Cited as authority (rule) United States v. Cervantes
6th Cir. · 2001 · confidence medium
In the absence of ambiguous statements by the district court concerning its discretion, there is a presumption that the court was aware of the law it was called upon to apply, United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989), and it should be assumed that the court, in the exercise of its discretion, found the downward departure unwarranted.
discussed Cited as authority (rule) United States v. Knight
6th Cir. · 2001 · confidence medium
In the absence of ambiguous statements by the district court concerning its discretion, there is a presumption that the court was aware of the law it was called upon to apply, United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989), and it should be assumed that the court, in the exercise of its discretion, found the downward departure unwarranted.
discussed Cited as authority (rule) United States v. Rangel-Silva
5th Cir. · 1999 · confidence medium
See United States v. Nelson, 54 F.3d 1540, 1544 (10th Cir. 1995); United States v. Bailey, 975 F.2d 1028, 1035 (4th Cir. 1992); United States v. Helton, 975 F.2d 430, 434 (7th Cir. 1992); United States v. Garcia-Garcia, 927 F.2d 489, 491 (9th Cir. 1991); United States v. Russell, 870 F.2d 18, 20 (1st Cir. 1989).
examined Cited as authority (rule) United States v. Anthony Eaton (3×) also: Cited "see"
4th Cir. · 1999 · confidence medium
The Carey court stated that the type of behavior qualifying for a departure on the basis of aberrant behavior resembles that of Robert Russell in United States v. Russell, 870 F.2d 18, 19-20 (1st Cir. 1989).
discussed Cited as authority (rule) United States v. Christopher Michael Walker
6th Cir. · 1997 · confidence medium
In the absence of ambiguous statements by the district court concerning its discretion, there is a presumption that the court was aware of the law it was called upon to apply, United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989), and it should be assumed that the court, in the exercise of its discretion, found the downward departure unwarranted.
discussed Cited as authority (rule) United States v. Grandmaison
1st Cir. · 1996 · confidence medium
We have considered cases involving departure requests based on aberrant behavior, see, e.g., Catucci, 55 F.3d at 19 n.3; ___ ____ _______ United States v. Pozzy, 902 F.2d 133, 137-38 (1st Cir.), ________________________ cert. denied, 498 U.S. 943 (1990); United States v. Russell, _____ ______ ________________________ 870 F.2d 18, 21 (1st Cir. 1989), but have not had occasion to define that term with specificity until now.
discussed Cited as authority (rule) United States v. Grandmaison
1st Cir. · 1996 · confidence medium
We have considered cases involving departure requests based on aberrant behavior, see, e.g., Catucci 55 F.3d at 19 n. 3; United States v. Pozzy, 902 F.2d 133, 137-38 (1st Cir.), cert. denied, 498 U.S. 943 , 111 *562 S.Ct. 353, 112 L.Ed.2d 316 (1990); United States v. Russell, 870 F.2d 18, 21 (1st Cir.1989), but have not had occasion to define that term with specificity until now.
cited Cited as authority (rule) United States v. Thaddeus Washington
6th Cir. · 1996 · confidence medium
United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989).
discussed Cited as authority (rule) United States v. Catucci
1st Cir. · 1995 · confidence medium
Aberrant Behavior _________________ Catucci urges a remand for resentencing because the district court allegedly misapprehended its authority to depart downward on the ground that these offenses constituted "aberrant behavior." See United States v. Russell, 870 F.2d 18, 20 (1st ___ _____________ _______ Cir. 1989) (adverting to guideline relating to "aberrant behav- ior" departures).
discussed Cited as authority (rule) United States v. Catucci
1st Cir. · 1995 · confidence medium
Aberrant Behavior Catucci urges a remand for resentencing because the district court allegedly misapprehended its authority to depart downward on the ground that these offenses constituted "aberrant behavior." See United States v. Russell, 870 F.2d 18, 20 (1st Cir. 1989) (adverting to guideline relating to "aberrant behav- ior" departures).
discussed Cited as authority (rule) United States v. Giacomo D. Catucci
1st Cir. · 1995 · confidence medium
Aberrant Behavior Catucci urges a remand for resen-tencing because the district court allegedly misapprehended its authority to depart downward on the ground that these offenses constituted “aberrant behavior.” See United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989) (adverting to guideline relating to “aberrant behavior” departures).
cited Cited as authority (rule) United States v. Jay Steven Kamen
6th Cir. · 1995 · confidence medium
United States v. Russell, 870 F.2d 18, 19 (1st Cir.1989).
cited Cited as authority (rule) United States v. Michael Wayne Eaton
9th Cir. · 1994 · confidence medium
A, intro. 4(b); United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989).
cited Cited as authority (rule) United States v. Kareem M. Jackson
6th Cir. · 1994 · confidence medium
United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989).
discussed Cited as authority (rule) United States v. Jimmy M. Tsosie
10th Cir. · 1994 · confidence medium
The court concluded that “[t]he aberrational character of her conduct combined with her responsibility to support two infants, justified a departure.”- 3 Id. at 1495 (citing U.S. v. Dickey, 924 F.2d 836 (9th Cir.), cert. denied, — U.S.-, 112 S.Ct. 383 , 116 L.Ed.2d 334 (1991); U.S. v. Russell, 870 F.2d 18, 20 (1st Cir.1989)).
cited Cited as authority (rule) United States v. W. David Marcello
3rd Cir. · 1994 · confidence medium
See, e.g., United States v. Fairless, 975 F.2d 664, 668 (9th Cir.1992); United States v. Takai, 941 F.2d 738, 743 (9th Cir.1991); United States v. Russell, 870 F.2d 18, 19-20 (1st Cir.1989).
discussed Cited as authority (rule) United States v. McCarthy (2×)
D. Colo. · 1993 · confidence medium
See, e.g., Peña, 930 F.2d at 1495 ; Takai, 941 F.2d at 743 ; United States v. Fairless, 975 F.2d 664, 668 (9th Cir.1992); United States v. Dickey, 924 F.2d 836 (9th Cir.), cert. denied, — U.S.-, 112 S.Ct. 383 , 116 L.Ed.2d 334 (1991); United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989).
discussed Cited as authority (rule) United States v. Thomas Everett Fairless, Jr.
9th Cir. · 1992 · confidence medium
In a spontaneous act the driver temporarily yielded to the temptation to keep the money, but shortly thereafter confessed his wrongdoing, returned his share of the loot, and cooperated fully in the subsequent investigation.” Dickey, 924 F.2d at 839 (citing United States v. Russell, 870 F.2d 18, 20-21 (1st Cir.1989)).
discussed Cited as authority (rule) United States v. Karen Diiorio (2×)
1st Cir. · 1991 · confidence medium
See also United States v. Rushby, 936 F.2d 41, 42 (1st Cir.1991) (“we can review a district court’s determination that it is without power to depart”); United States v. Castiello, 915 F.2d 1, 5-6 (1st Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 787 , 112 L.Ed.2d 849 (1991); United States v. Russell, 870 F.2d 18, 20-21 (1st Cir.1989).
discussed Cited as authority (rule) United States v. Arthur David Bruder
7th Cir. · 1991 · confidence medium
This court has held that a decision not to depart from the guidelines is reviewable on appeal if this decision “is the product of a conclusion that the' judge lacks authority to depart.” United States v. Poff, 926 F.2d 588, 591 (7th Cir.1991) (en banc); see also United States v. Prescott, 920 F.2d 139 (2d Cir.1990); United States v. Chotas, 913 F.2d 897, 899 (11th Cir.1990), ce rt. denied, — U.S. -, 111 S.Ct. 1421 , 113 L.Ed.2d 473 (1991); United States v. Bayerle, 898 F.2d 28, 31 (4th Cir.), cert. denied, — U.S. -, 111 S.Ct. 65 , 112 L.Ed.2d 39 (1990); United States v. Cheape, 889 F.2…
discussed Cited as authority (rule) United States v. Christopher J. Romolo
1st Cir. · 1991 · confidence medium
See United States v. Rushby, 936 F.2d 41, 42 (1st Cir.1991); United States v. Poff, 926 F.2d 588, 590-91 (7th Cir.1991), petition for cert. filed, No. 90-7874 (April 29, 1991); United States v. Sharpsteen, 913 F.2d 59, 63 (2d Cir.1990); United States v. Lowden, 905 F.2d 1448, 1449 (10th Cir.), cert. denied, — U.S.-, 111 S.Ct. 206 , 112 L.Ed.2d 166 (1990); United States v. Ortez, 902 F.2d 61, 64 (D.C.Cir.1990); United States v. Bayerle, 898 F.2d 28, 31 (4th Cir.), cert. denied, — U.S.-, 111 S.Ct. 65 , 112 L.Ed.2d 39 (1990); United States v. Rosen, 896 F.2d 789, 792 (3d *23 Cir.1990); United…
discussed Cited as authority (rule) United States v. John Rushby
1st Cir. · 1991 · confidence medium
And, while the Government concedes that we can review a district court’s determination that it is without power to depart, see, e.g., United States v. Castiello, 915 F.2d 1, 5-6 (1st Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 787 , 112 L.Ed.2d 849 (1991); United States v. Tucker, 892 F.2d 8 , 9 n. 2 (1st Cir.1989); United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989) (per curiam), it correctly argues that we cannot review a district court’s refusal to exercise that power.
cited Cited as authority (rule) United States of America, Cross-Appellant v. Irma Pena, Cross-Appellee
10th Cir. · 1991 · confidence medium
See United States v. Dickey, 924 F.2d 836 (9th Cir.1991); United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989).
discussed Cited as authority (rule) United States v. Jose Fernando Garcia-Garcia
9th Cir. · 1991 · signal: cf. · confidence medium
Cf. United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989) (in assessing jurisdiction to review downward departures, “[o]ur usual presumption ... is that a district court is aware of the law that it is called upon to apply”).
discussed Cited as authority (rule) United States v. Carolyn Kay Poff (2×)
7th Cir. · 1991 · confidence medium
See also United States v. Prescott, 920 F.2d 139 (2d Cir.1990); United States v. Chotas, 913 F.2d 897, 899 (11th Cir.1990); United States v. Cheape, 889 F.2d 477, 480-81 (3d Cir.1989); United States v. Russell, 870 F.2d 18, 20-21 (1st Cir.1989).
cited Cited as authority (rule) United States v. Anthony Ray Jefferson and Roosevelt Jefferson, Jr.
10th Cir. · 1991 · confidence medium
See United States v. Sharpsteen, 913 F.2d 59, 64 (2d Cir.1990); United States v. Russell, 870 F.2d 18, 20-21 (1st Cir.1989).
discussed Cited as authority (rule) United States v. Ira Marvin Dickey (2×)
9th Cir. · 1991 · confidence medium
I, Part A, Introduction para. 4(d) (with respect to first offenders, "[t]he Commission ... has not dealt with the single acts of aberrant behavior that still may justify probation at higher offense levels through departures"); United States v. Russell, 870 F.2d 18, 20 (1st Cir.1989) ("The Sentencing Commission made clear that departures are permitted in atypical cases[;] * * * [s]uch 'aberrant behavior' ... may justify departures in appropriate cases"). 9 Although there are several reported decisions mentioning aberrant behavior in the context of first offenses, 1 our research has disclosed on…
discussed Cited as authority (rule) United States v. Philip Prescott
2d Cir. · 1990 · confidence medium
See United States v. Sharpsteen, 913 F.2d 59, 63 (2d Cir.1990); United States v. Adeniyi, 912 F.2d 615, 618 (2d *146 Cir.1990); United States v. Bayerle, 898 F.2d 28, 31 (4th Cir.1990), cert. denied, _ U.S. _, 111 S.Ct. 65 , 112 L.Ed.2d 39 ; United States v. Fossett, 881 F.2d 976, 979 (11th Cir.1989); United States v. Russell, 870 F.2d 18, 20-21 (1st Cir.1989); see 18 U.S.C. § 3742 (a)(1) (1988) (defendant may-appeal sentence “imposed in violation of law”).
discussed Cited as authority (rule) United States v. Aaron Lowden (2×)
10th Cir. · 1990 · confidence medium
United States v. Davis, 900 F.2d at 1530 n. 7; accord United States v. Ortez, 902 F.2d 61 (D.C.Cir.1990); United States v. Rosen, 896 F.2d 789, 792 (3d Cir.1990); United States v. Fossett, 881 F.2d 976, 979 (11th Cir.1989); United States v. Russell, 870 F.2d 18, 21 (1st Cir.1989).
discussed Cited as authority (rule) United States v. Aaron Lowden
10th Cir. · 1990 · confidence medium
In light of this ambiguity, we feel that the best course is for us to retain appellate jurisdiction and to ask the district court for clarification of its own decision-making process.” United States v. Russell, 870 F.2d 18, 20, 21 (1st Cir.1989).
cited Cited as authority (rule) United States v. Terryl L. Williams
1st Cir. · 1989 · confidence medium
See, e.g., United States v. Michel, 876 F.2d 784, 786 (9th Cir.1989); Diaz-Villafane, 874 F.2d at 49 ; United States v. Russell, 870 F.2d 18, 19 (1st Cir.1989) (per curiam).
discussed Cited as authority (rule) United States v. Jorge Armando Aguilar-Pena
1st Cir. · 1989 · confidence medium
Under the Sentencing Reform Act, a district court may depart from the guidelines if it “finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C.A. § 3553 (b); see generally Diaz-Villafane, 874 F.2d at 49 ; United States v. Russell, 870 F.2d 18, 19 (1st Cir.1989) (per curiam).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Robert Donald RUSSELL, Defendant, Appellant
88-1824.
Court of Appeals for the First Circuit.
Mar 30, 1989.
870 F.2d 18
Owen S. Walker, Boston, Mass., for defendant, appellant., Victor A. Wild, Asst. U.S. Atty., Boston, Mass., for appellee.
Campbell, Coffin, Bownes.
Cited by 101 opinions  |  Published

MEMORANDUM AND ORDER

Defendant-appellant Robert D. Russell pleaded guilty to one count of bank larceny. The district court sentenced him to the minimum possible sentence within the guidelines issued pursuant to the Sentencing Reform Act — four months in a community treatment facility. Russell appeals on the ground that the district court may not have recognized that it had the power to impose a sentence below the guidelines.

Both appellant and the government agree that the district court may depart from the guidelines — whether upward or downward — in appropriate cases. In the Sentencing Reform Act, Congress made this power of the district court explicit:

The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) [the sentencing guidelines] unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.

18 U.S.C. § 3553(b) (1988). See also United States v. Correa-Vargas, 860 F.2d 35, 40 (2d Cir.1988) (endorsing the district courts’ “exercise [of] their sound judgment in departing from the Guidelines”).

Appellant Russell argues to us, as he did to the district court, that his case was a proper one for consideration of a sentence below the guideline minimum. Russell, the driver of a Wells Fargo armored truck, had no criminal record. A bank had mistakenly handed Russell’s partner, the truck’s messenger, an extra money bag containing $80,000. The men initially yielded to temptation and decided to keep the money. A week later, however, they admitted what they had done. Russell returned all the money that he had kept, and cooperated fully in the investigation of the crime. Russell argued that the district court should impose a sentence below the guideline minimum because Russell’s conduct was a single episode of “aberrant behavior,” it involved no planning, and Russell cooperated fully with the government and returned all the money.

In imposing sentence, the district court expressed sympathy for the predicament that faced Russell and his compatriot when an extra $80,000 was literally placed in their hands. The court stated:

I recognize the limitations on the financial resources of these two gentlemen.
I recognized that, when I first took into consideration what happens when $80,000 suddenly falls in your lap, and you’re not a rich person. That certainly didn’t fail to dawn upon me.

Sentencing Hearing Transcript at 38. The court took these circumstances into account in imposing sentence, noting “that’s one[*20] reason why I’m at the bottom of the guideline possibility of four to ten months.” Id.

The district court did not make explicit, however, whether it considered the possibility of imposing a sentence below the guideline range by virtue of the arguably atypical nature of Russell’s conduct. * The Sentencing Commission made clear that departures are permitted in atypical cases, at the sentencing judge’s discretion:

The Commission intends the sentencing courts to treat each guideline as carving out a “heartland,” a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.

United States Sentencing Commission Guidelines Manual Introduction 4(b) Ch. 1, Part A, (rev. ed. 1988). Such “aberrant behavior” may involve, almost by definition, factors “not adequately taken into consideration by the Sentencing Commission in formulating the guidelines,” 18 U.S. C. § 3553(b), and thus may justify departures in appropriate cases. See Guidelines Manual Ch. 1, Part A, Introduction 4(d) (“The Commission, of course, has not dealt with the single acts of aberrant behavior that still may justify probation at higher offense levels through departures”).

Appellant contends that two statements by the district court betray the misconception that the court lacked the power to make such a departure. At one point during the sentencing hearing, the court stated:

It’s my opinion that I should not go downward from the lowest level of the guideline here, that I am required, in my reading of the Act — and as I say, I’m not of opinion, but I am required — and I think Mr. Wild [the Assistant United States Attorney] feels the same way — to impose the four months at a minimum.

Sentencing Hearing Transcript at 28. At a later point, the district court stated:

I feel that the culpability here is on the lower step of the ladder. But my interpretation of the Guideline Sentencing Act is such that I must give them at least the minimum.

Id. at 39.

Defendant argues, on the basis of these statements, that the district court failed to recognize its own discretion to depart from the sentencing guideline range, if it felt that justice so required. The government responds that the sentencing hearing transcript, when read as a whole, shows that the district court in fact recognized its discretion to depart from the guideline range, but decided that such departure was not called for in this case.

After reading the sentencing hearing transcript, we are unable to decide definitively between these differing assessments of the district court’s view of its own discretion. The government’s interpretation, that the district court was aware of its discretion to depart from the guideline range but declined to exercise it, seems plausible. Our usual presumption, moreover, is that a district court is aware of the law that it is called upon to apply. On the other hand, we recognize that the sentencing guidelines had only recently been introduced at the time of the hearing — July 1988 — and that courts had had limited experience in their implementation. Indeed, the district court candidly noted, at the start of the hearing, “I may need a little guidance, as we go along, in light of the fact that we’re using a guideline sentencing system here this morning.” Thus, wishing to be absolutely fair to defendant, we cannot dismiss the possibility, remote though it may be, that the district court underestimated its own power, if so moved, to depart from the guideline range on the basis of Russell’s arguably “aberrant behavior.”

[*21] In light of this ambiguity, we feel that the best course is for us to retain appellate jurisdiction and to ask the district court for clarification of its own decision-making process. This memorandum and order will be transmitted by the Clerk of this court to the district court, with the request that it inform us whether or not it recognized, at the time that it imposed sentence, that it had the discretion to make a downward departure from the guideline range. If the district court informs us that it was aware of its discretion, but declined to exercise it, our intention is to affirm the sentence. If the court informs us that it was not then fully apprised of its discretion to depart as found in the guidelines, our intention is to vacate the sentence and to remand for re-sentencing. In the latter event, the district court would be at liberty after reconsideration either to impose the same sentence or to alter it.

The Clerk is instructed to transmit this order to the district court. We retain appellate jurisdiction.

ORDER AFTER DISTRICT COURT RESPONSE

In answer to our Memorandum and Order entered on March 14, 1989, the district court made the following response:

In response to the request of the Court of Appeals for the First Circuit that this court inform the judges “whether or not it recognized, at the time that it imposed sentence that it had the discretion to make a downward departure from the guideline range”, my answer is in the affirmative. I declined to exercise discretion, for the reason that I was of opinion that I should not go below the minimum set by the guidelines.

Accordingly, we affirm the defendant’s sentence.

SO ORDERED.

*

The district court apparently did consider the possibility of going below the guidelines in recognition of Russell’s cooperation with the government. The court declined to take this step, noting that "I don’t think it’s the type of cooperation that I should take into account for an upward or a downward movement.” Sentencing Hearing Transcript at 39.