## F I L E D United States Court of Appeals Tenth Circuit 

### APR 28 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,Plaintiff-Appellee - CrossAppellant,

v. RYAN GAUVIN,Defendant-Appellant - CrossAppellee. Nos. 97-2328, 97-2363

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D.C. No. CR-96-709-MV)

Judith A. Rosenstein, Assistant Federal Public Defe nder, for Defendant-Appellant - Cross-Appellee. Kathleen Bliss, Assistant United States Attorney, for Plaintiff-Appellee - CrossAppellant.

Before PORFILIO , McWILLIAMS , and HENRY , Circuit Judges.

HENRY , Circuit Judge.

Mr. Gauvin was convicted by a jury for assault witha dangerous weapon in Indian Country, in violation of 18 U.S.C. §§ 1153, 113(a)(3), and assault on a2

federal officer, in violation of 18 U.S.C. § 111(b) . Mr. Gauvin made a motion for judgment of acquittal or alternatively for a new tr ial. The motion was denied and Mr. Gauvin was sentenced to 37 months in prison fol lowed by three years of supervised release. The sentence reflects a downward adjustment in the sentencing guidelines for acceptance of responsibil ity and a departure for exceptional family circumstances. Mr. Gauvin appeals the conviction, and the governme nt cross-appeals the sentencing. We have jurisdiction to hear both appeals under 2 8 U.S.C. § 1291. We affirm the district court on all matters.
I. Mr. Gauvin was driving his Ford pickup at 1:15 a.m. , drunk. Officer Sandoval, of the New Mexico State Police, noticed h is vehicle swerving between lanes on the highway. She engaged her lights and s irens to stop the driver. Mr. Gauvin accelerated. Officer Sandoval tried to maneuver beside Mr. Gauvin in the left lane. Each time she attempted t his he swerved his truck left, forcing her to decelerate to avoid collision. Fourmiles later, Deputy Sheriff Montoya, of McKinley County, observed the chase andjoined in. Officer Sandoval testified that somewhere in the ne xt few miles, where the road had changed to an undivided two lanes, she sawMr. Gauvin edge into the opposing lane forcing two oncoming vehicles to swerve into the breakdown lane3

to avoid his truck. She fired her gun at Mr. Gauvi n’s rear tire attempting to disable his vehicle. She missed. Four miles after Sheriff Montoya entered the chase, the road ran into Navajo Nation Indian Reservation. Two Navajo polic e officers there joined the pursuit. One of them, Officer Redhouse, took the f ront position ahead of Officer Sandoval. Every time Officer Redhouse tried to getbeside Mr. Gauvin, Mr. Gauvin veered into the lane, thwarting the attempt. In one of these attempts to pass, the two vehicles collided, and the truck and Officer Redhouse’s car flipped into a ditch. Fortunately, Officer Redhouse was no t seriously injured. Mr. Gauvin was treated at a hospital and arrested for a ssault with a deadly weapon and assault on a federal officer.

Mr. Gauvin appeals his conviction on five grounds: (1) the district court’s exclusion of specific testimony offered by Mr. Gauv in’s witness was an abuse of discretion; (2) the district court’s admission of t estimony by government witnesses regarding the credibility of other witnes ses was an abuse of discretion; (3) the district court’s admonishment of a governme nt witness to answer the defense counsel’s question was plain error; (4) the prosecutor’s remarks in the closing argument amounted to plain error; and (5) h is conviction was based on facts and a theory of the case not presented to the grand jury in violation of the4

Fifth Amendment. Holding that the district court d id not err, and that Mr. Gauvin was convicted on facts and a theory presented to th e grand jury, we affirm the conviction. The government cross-appeals challenging the downward adjustment and departure reflected in the thirty-seven month sente nce. Unable to determine that the court abused its discretion in sentencing, we a ffirm the district court’s adjustment and departure.

II. A. Mr. Gauvin’s Appeals from the Conviction. 1. The district court did not err in excluding tes timony, and any error would be harmless. In response to police reports on the accident, Mr. Gauvin sought to introduce testimony by Mr. Welch, a teacher at the New Mexico Police Academy, that New Mexico police officers are trained that th ey should never change their reports. Mr. Gauvin wished to challenge the validi ty of the police reports, which indicated Mr. Gauvin had caused the collision. Mr. Gauvin’s accident reconstruction experts had suggested the accident w as most likely caused by Officer Redhouse: Mr. Welch’s testimony was thus i ntended to impeach the continued reliability of the police reports thus bo lstering the alternate version of5

events provided by Mr. Gauvin’s accident experts. The district court excluded the evidence upon the prosecution’s objections for rele vance and that admission would constitute unfair surprise in violation of Fe deral Rule of Criminal Procedure 16. We review a district court’s exclusi on of evidence for abuse of discretion, Cartier v. Jackson , 59 F.3d 1046, 1048 (10th Cir. 1995), and affirm. Mr. Gauvin’s accident reconstruction experts had te stified that the accident was probably not caused by Mr. Gauvin slamming into Officer Redhouse’s car. Among the evidence contrary to their conclusion wer e the police reports. Mr. Gauvin sought to discredit the reports, by establis hing that no matter how clear it became to an officer during trial that his report m ight be in error, some unofficial policy instructed the officer not to alter his repo rt. The prosecution objected to the admission of Mr. Welch’s testimony both on rele vance grounds and as unfair surprise under Federal Rule of Criminal Procedure 1 6. The district court excluded the testimony but from the transcript it i s unclear whether it did so on the relevance objection or the Rule 16 objection. The testimony would have been relevant. Neither 18 U.S.C. § 111 nor 18 U.S.C. § 113 define assault. However, “where a fed eral criminal statute uses a common-law term of established meaning without othe rwise defining it, the general practice is to give that term its common-law meaning.” United States v. Turley , 352 U.S. 407, 411 (1957). Assault is traditional ly defined as “an6

attempted battery” or as “placing another in reason able apprehension of a battery.” See Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal
Law , § 7.16 (1986). This circuit adopted this definit ion when interpreting another federal assault statute. See U.S. v. Calderon , 655 F.2d 1037, 1038 (10th Cir. 1981). In light of that definition, Mr. Gauvin’s guilt cou ld be established either by showing he caused the crash, or by showing he swerv ed his car in a manner placing the officers in reasonable apprehension of battery. Therefore, Mr. Gauvin’s defense necessitated (among other things) two showings: (1) he did not cause the accident, and (2) he did not swerve towar d Officer Redhouse’s car. “‘Relevant evidence’ means evidence having any tend ency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401. The police reports indicate that Mr. Gauvin c aused the accident. Mr. Welch’s testimony would have challenged the continu ed validity of the police reports, thus weakening the evidence indicating Mr. Gauvin had caused the accident. Whether Mr. Gauvin caused the accident i s not dispositive of, but is relevant to determining, whether Mr. Gauvin is guil ty of assault. The evidence should not have been excluded on the relevance obje ction. As to the second objection, Rule 16(b)(1)(C) requir es disclosure in some7

cases of expert testimony at the discovery phase. In response to the Rule 16 objection, Mr. Gauvin argues that the testimony is based on experience, not expertise. This argument ignores the breadth of th e category “expert” under both the Federal Rules of Evidence and the Federal Rules of Criminal Procedure. Federal Rule of Evidence 702 is “broadly phrased. The fields of knowledge which may be drawn upon are not limited merely to t he ‘scientific’ and ‘technical’ but extend to all ‘specialized’ knowledge.” Fed. R . Evid. 702 advisory committee notes. The advisory committee notes to Rule 16 state that the type of expert testimony captured by the rule is broadly construedin line with the broad definition in Federal Rule of Evidence 702. See Fed. R. Crim. P. 16, advisory committee notes (1993 Amendment). Mr. Welch’s test imony as to the existence of an unofficial policy of inflexibility, based on his work as a teacher at the Police Academy, qualifies as “expert” under 702 andis subject to the limitations under Rule 16. Finally, even were this testimony improperly exclud ed, the error would have been harmless. Mr. Gauvin could have been con victed on the basis of his swerving toward Officer Redhouse’s car. The eviden ce is sufficient to uphold such a conviction and therefore we would not find p rejudice in this alleged error.

2. The district court did not err in admitting cha llenged testimony.8

Mr. Gauvin alleges error in the district court’s ad mission of testimony by Officer Doty that, in making his reports at the sce ne of the accident, he interviews witnesses, including “impartial witnesses” and poli ce officers. Rec. vol. IV, at 307. Mr. Gauvin also finds error in the admission of testimony by Officer Segotta, Officer Sandoval’s supervisor, that he fou nd nothing suggesting to him an improper motive in Officer Sandoval’s dischargin g her firearm. The government argues, contrary to Mr. Gauvin, thatthese objections were not properly preserved and thus we should review on ly for plain error. We need not resolve that contention, however, because even reviewed for abuse of discretion, as the decision would be were the objec tion preserved, the decision

was not error. Mr. Gauvin first objects to Officer Doty’s testimony – specifically his response to the question, “why you have to intervie w witnesses,” in which he stated, “We consider different types of witnesses. The impartial eyewitness or eyewitness of [sic] police officer is to me a better information.” Id. Defense counsel objected to the adjective “impartial,” and while the judge refused to strike the word, she did immediately instruct the jury that impartiality is an issue “that you determine and only you determine.” Id. As Officer Doty was not even referring to a specifi c witness in answer to the question, but instead was describing in the abs tract the hypothetical type of9

witness he seeks, it was not error to allow use of the adjective “impartial.” Furthermore, had there been any error, it would hav e been cured by the immediate jury instruction. Mr. Gauvin also objects to testimony by Officer Seg otta. Officer Segotta, Officer Sandoval’s superior, testified on redirect examination that he found no improper motive underlying her filed report. Mr. G auvin asserts this testimony improperly vouched for the credibility of another g overnment witness, namely, Officer Sandoval. But Mr. Gauvin’s attorney had as ked on cross-examination whether Officer Segotta “talk[ed] personally to Off icer Sandoval to question her about anything she wrote in her report?” Rec. vol. IV, at 401. The prosecution’s question was thus properly asked as Mr. Gauvin’s lawyer had previously opened the door to this line of questioning. See United States v. Primrose , 718 F.2d 1484, 1493 (10th Cir. 1983) (trial court did not ab use its discretion in finding “proper redirect because defense counsel had openedthe door on cross”). The trial court did not abuse its discretion or com mit plain error in admitting the challenged testimony of either Office r Doty or Officer Segotta. 3. The district court did not commit plain error in admonishing a government witness to answer defense counsel’s ques tions. During trial, defense counsel questioned Officer Sandoval as to the circumstances that existed when she fired her gun. When counsel did not believe10

Officer Sandoval had satisfactorily answered the qu estion, he asked the question again. The prosecution objected to defense counsel ’s tone of voice, and the district court sustained the objection. The distri ct court went on to comment: I think this will help. I think the witness is att empting to try to answer your questions, but let me request, perhaps, Officer Sandoval, that if you can answer a question with a yes or no, if you could begin your answer with a yes or a no. If you believe that you need to explain your answer, you will always be given an op portunity to explain it, but it might help us all out if you cou ld just answer it first with a yes or a no if it is possible to do so. Rec. vol. III, at 146. Mr. Gauvin contends this comment was reversible err or because it undermined the defense strategy of making Officer S andoval look evasive and thus undermining her credibility. We disagree. Th e district court’s comment was a completely proper exercise of authority under Fed eral Rules of Evidence 611 (“The court shall exercise reasonable control over the mode and order of interrogating witnesses . . . .”) and 614 (“The cou rt may interrogate witnesses . . . .”). 4. The prosecutor’s closing argument did not amoun t to plain error. We review a prosecutor's remarks during closing arg ument (not objected to) for plain error and will reverse “only to correct p articularly egregious errors . . . .” United States v. Hooks , 780 F.2d 1526, 1532 (10th Cir. 1986) (citing United States v. Young , 470 U.S. 1, 14-15 (1985).11

In Hooks , the prosecutor said in closing: “There should be no question in your mind that the defendant possessed phencyclidin e. He knew it was in there. He had to know it was in there. ” Id. at 1533. In Mr. Gauvin’s case the prosecutor said: “Generally, at this point the gov ernment asks you to take this evidence and return a verdict [of] guilty on both c ounts. But in this situation, the evidence compels you to return a verdict of guilty. ” Rec. vol. V, at 582. In Hooks , the Court ruled that “the prosecutor did nothing more than argue to the jury that, on the basis of the government's evidenc e, the jury should find that appellant knowingly possessed PCP.” 780 F.2d at 15 34. Likewise, the comments in the instant case are of the same nature and are not plain error. Mr. Gauvin also objects to the prosecutor’s charact erization, in closing argument, of one expert’s testimony as stating, “al cohol merely makes one uninhibited about things that they would have done in the first place or done anyway.” Rec. vol. V, at 580. The expert had test ified, “I don’t think that [alcohol] makes people do things that they might no t ordinarily do. I think it just reduces their inhibitions to performing.” Rec. vol . V, at 550. The characterization of testimony is correct. Furtherm ore, any prejudice possibly resulting from flaws in the paraphrase does not amo unt to plain error.

We need not conduct a cumulative error analysis as requested by the12

defendant. A cumulative-error analysis merely aggr egates all the errors that individually have been found to be harmless, and th erefore not reversible, and it analyzes whether their cumulative effect on the out come of the trial is such that collectively they can no longer be determined to be harmless." United States v. Rivera , 900 F.2d 1462, 1470 (10th Cir. 1990) (en banc). Having found no errors, harmless or otherwise, we are left with nothing to aggregate. 5. There was no Fifth Amendment violation as Mr. G auvin was convicted on the basis of facts and a theory of the case presented to the grand jury. Mr. Gauvin claims that the evidence presented to th e grand jury would only permit his being indicted on the basis of the actua l collision, i.e., ramming his truck into Officer Redhouse’s car. He contends he was convicted for swerving conduct prior to the alleged ramming, and thus convicted of a cr ime not presented to the grand jury. Assuming he was convicted of sw erving conduct prior to the alleged ramming, the indictment is not so narrow as Gauvin describes. "A constructive amendment of an indictment occurs w hen the terms of the indictment are in effect altered by the presentatio n of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment.'" United States v. Hornung , 848 F.2d 1040, 1046 (10th Cir. 1988) (quoting United States v. Hathaway , 79813

F.2d 902, 910 (6th Cir. 1986)). The grand jury indicted Mr. Gauvin for assault witha dangerous weapon and assault of a federal officer. The first charge requires proof of: (1) assault (2) with a dangerous weapon (3) with intent to do bodily harm. See 18 U.S.C. § 113(a)(3). The second charge requires proof of: ( 1) forcible assault, resistance, opposition, impediment, intimidation, or interferen ce (2) of a federal officer (3) engaged in the performance of official duties. See 18 U.S.C. § 111(b). Either conviction could stand, without reliance on the col lision, merely on the evidence of Mr. Gauvin’s having swerved his car to block app roaching officers. FBI Agent Calles testified to the grand jury that “ each time [the police] tried to position their vehicles to institute the s top, Mr. Gauvin’s pickup truck swerved. And, in order to avoid collision [the pol ice] had to veer off the roadway. . . .” Aplt. Br. Sealed Addendum, at 5. This testimony supports an indictment for intentional assault absent any evide nce of the collision itself. There is nothing so dramatic in this case as a “mod if[ication of the] essential elements of the offense charged.” Hornung , 848 F.2d at 1046. Mr. Gauvin’s Fifth Amendment rights were not violated.

B. The Government’s Cross-Appeals from the Sentence. The government raises two issues on cross-appeal. First, the government14

contends the district court erred in finding accept ance of responsibility. Second, the government argues the district court erred in g ranting a downward departure for exceptional family circumstances. Holding the district court erred in neither sentencing decision, we affirm. 1. The district court did not err in granting a downw ard adjustment for acceptance of responsibility. If “the defendant clearly demonstrates acceptance o f responsibility for his offense,” the district court grants a two offense-l evel downward adjustment.
USSG §3E1.1(a). Determination of acceptance of respons ibility is a question of fact reviewed under a clearly erroneous standard. United States v. Mitchell , 113 F.3d 1528, 1533 (10th Cir. 1997), cert denied , 118 S.Ct. 726 (1998). “The sentencing judge is in a unique position to evaluat e a defendant’s acceptance of responsibility. For this reason, the determinationof the sentencing judge is entitled to great deference on review.” USSG §3E1.1, comment. (n.5). The district court found Mr. Gauvin accepted respon sibility for his crime notwithstanding the fact that Mr. Gauvin put the go vernment to its burden of trial. The Sentencing Commission recognized that the accep tance of responsibility guideline was “not intended to apply to a defendantthat puts the government to its burden of proof at trial by denying the essenti al factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” USSG §3E1.1,15

comment. (n.2) (emphasis added). It continues, “[c ]onviction by trial, however, does not automatically preclude a defendant from co nsideration for such a reduction. . . . [A] determination that a defendan t [who exercised his constitutional right to a trial] has accepted respo nsibility will be based primarily upon pre-trial statements and conduct.” Id. At the sentencing hearing, the judge found Mr. Gauv in’s conduct demonstrated acceptance of responsibility. Rec. vo l. VII, at 54. After review of the record we hold that the district court’s factua l determination that Mr. Gauvin “understands the seriousness of [his crime] and acc epts responsibility for his role,” Rec. vol. VII, at 8, was not clearly erroneo us. The district court considered whether Mr. Gauvin’s contention of an essential element of the offenses should preclude application of the guideline. It ruled that “Mr. Gauvin is entitled to pursue the th eory that he did all these things [on which the charges were based], but the one thin g he didn’t do is try to use his car to hurt the officers. That should not preclude him from acceptance of responsibility.” Id. at 9. We agree. Our decision rests in part on the fact that Mr. Gau vin went to trial only to contest the legal element of intent. The Sentencin g Commission has indicated that the guideline should not apply to “a defendantwho falsely denies, or frivolously contests, relevant conduct that the cou rt determines to be true . . . .”16

USSG §3E1.1, comment. (n.1(a)). However, the Commissio n notes that it may apply where the defendant “challenge[s] . . . the applicability of a statute to his conduct.” Id. , comment. (n.2). Mr. Gauvin admitted to all the c onduct with which he was charged. He simply disputed whether h is acknowledged factual state of mind met the legal criteria of intent to h arm or cause apprehension. While a jury disagreed with Mr. Gauvin’s defense th at he lacked the requisite intent to commit the crime, that does notundermine the good faith in which the district court found this defense was asserted. See Rec. vol. VII, at 8- 9. Here, Mr. Gauvin argued that he did not intend, while drunk and scared, to cause injury to others. Further, he contended thathis drunkenness rendered him incapable of forming the requisite mens rea. This defense – essentially a challenge to the applicability of the statute to his conduct, see USSG §3E1.1, comment. (n.2) – does not as a matter of law preclu de application of the guideline. Although we recognize that such adjustments are “rare,” id. , and might not have reached the same decision, in light of the deference afforded the sentencing judge, we hold the district court did no t err in granting a downward departure for acceptance of responsibility. 2. The district court did not err in departing downwa rd for exceptional family circumstances. The district court also found that Mr. Gauvin merit ed a three offense-level17

downward departure because of exceptional family ci rcumstances. In conducting our review, we must acknowledge, “ Koon made explicit that in promulgating the Guidelines, Congress did not intend to vest in appe llate courts wide-ranging authority over district court sentencing decisions.” United States v. Collins , 122 F.3d 1297, 1302 (10th Cir. 1997) (quotation omitted). “Rather, Congress meant to establish[] limited appellate review, where district courts retain much of their traditional sentencing discretion .” Id. (emphasis supplied) (quotations omitted). It is our role to “review departures under a unitary abuse-of-discretion standard which ‘includes review to determine that the discretion [of the district court] was not guided by erroneous legal conclusions.’” Id. (quoting Koon v. United States , 518 U.S. 81, 100 (1996)). More specifically, we must make four determinations: (1) whether the factual circumstan ces supporting a departure are permissible departure factors; (2) whether the departure factors relied upon are sufficient to remove the defendant from the applica ble Guideline heartland thus warranting a departure; (3) whether the record suff iciently supports the factual basis underlying the departure; and (4) whether the degree of departure is reasonable. See id. at 1303. First, the Guidelines tell us that family circumsta nces and responsibilities are a permissible but discouraged factor. See USSG §5H1.6. Therefore, a district court may depart based on family circumstances “onl y if the factor is present to18

an exceptional degree or in some other way makes th e case different from the ordinary case where the factor is present.” Koon v. United States , 518 U.S. 81, 94 (1996). This requirement blends the first two f actors for appellate review. Therefore, on the second determination we question whether Mr. Gauvin’s family circumstances remove him from the applicable Guidel ine heartland. We give the district court “substantial deference” in resolving “whether a particular defendant is within the heartland given all the facts of the case.” Collins , 122 F.3d at 1313 (quotations omitted). We hold the district court di d not err in concluding Mr. Gauvin’s crime was outside the heartland. “The Sentencing Guidelines allow for a downward dep arture in the atypical case where a guideline literally applies but where the defendant's conduct significantly differs from the norm or the ‘heartland’ of cases.” United States v.
Eaton , 31 F.3d 789, 793 (9th Cir. 1994). This is a mostdifficult inquiry. What family circumstances are exceptional to a degree mo re than those in the heartland cases? This court has described a case within the heartland (reversing the departure) as: “[the defendant was a] single mothe r of child who, in defendant's absence, would be cared for by an alleged alcohol and drug abuser.” United States v. Archuletta , 128 F.3d 1446, 1451 n.9 (10th Cir. 1997) (describing United States v. Harrison , 970 F.2d 444, 447-48 (8th Cir. 1992)). Thus, that scenario is

not exceptional enough to merit departure. In the sam e decision, this court1 Of course, we do not mean to suggest the Archuletta panel was condoning

that outcome – the example is used simply to highli ght the impossibility of arriving at sensible distinctions between the facts presented in a family circumstances inquiry. 19 described a case found to be outside the heartland (affirming the departure) as: “defendant had special relationship with his lover' s son, who had psychological and behavior problems and might regress in absence of defendant.” Id. at 1451 n.10 (describing United States v. Sclamo , 997 F.2d 970, 972-74 (1st Cir. 1993)). Thus, that scenario was exceptional enough to merit departure. 1 It may be, as Tolstoy suggested, that happy familie s are all alike and every unhappy family is unhappy in its own way – but how to distinguish between unhappys? “[W]hen is a case so ‘unusual’ that it i s a candidate for departure? The Supreme Court in Koon made clear that this question is largely for the d istrict court to answer.” Collins , 122 F.3d at 1302. For example, is the case of a defendant’s imprisonment resulting in her children being cared for by a drugabuser better or worse that the instant case, where the defendant’s imprisonment leaves his children almost completely unsupervised? That is, is a drug-abusing supervisor better than no supervisor at all? And, what sort of “special relationship” with a lover’s son is required for th e imprisonment to become too great a hardship? If, instead of an impending threat of relapse into psychological problems, there were no psychological problems, butjust a threat of depression,20

would that be better or worse? The Seventh Circuit “noted that a district court ju dge may have a better feel for what is or is not unusual or extraordinary and that when a district court clearly explains the basis for its finding of an extraordin ary family circumstance, that finding is entitled to considerable respect on appeal.” United States v. Owens , 145 F.3d 923, 928 (7th Cir. 1998) (quotations omitted). Here, the district judge clearly explained the basis for finding the circums tances were extraordinary, and unable to find error, we defer to that judgment. On the third determination, we hold the facts suppo rt the departure. Mr. Gauvin is the father and supporter of four young ch ildren and his wife. Rec. vol. VII, at 55. To replace his income, since his incarc eration, his wife has worked 14 hours a day, 55 miles from home. Id. at 56. Thus, she is away from home sixteen hours a day. The children are financially barely p rovided for, and parentally unprovided for. Id. at 55-56. As a result, Navajo Housing Authority i s conducting an investigation to determine whether Mr s. Gauvin will be permitted continued custody of her children. Id. at 25-26, 56. Mrs. Gauvin is also at risk of losing her car for failure to make payments. Id. at 24, 57-58. Should she lose her car, she will be unable to continue her two jobs an d thus the children will be entirely without support. Id. at 57-58. Further, the Gauvins have no extended family to take custody of the children or assist fi nancially should Mrs. Gauvin fail21

in either capacity. Id. at 58. In sum, the district judge concluded, maki ng explicit findings, that she had “never seen a combination of these factors.” Id. at 58. The facts of this case are exceptional to a degree to merit departure even in a discouraged category. We reiterate, “[b]ecause t he Supreme Court believes that in [the area of downward departures] experience is the best teacher, it instructs that district courts, which have the most, are to b e deferred to by appellate courts, which have much less.” United States v. Galante , 111 F.3d 1029, 1031 (2d Cir. 1997). In United States v. Galante , the Second Circuit affirmed a downward departure for exceptional family circumstances thatresulted in a reduction in the offense level from 23 to 10. Id. at 1032. Many facts in that case were similar to those present in the instant case. The defendant w as the primary earner of the family. He had a wife and two children. Without h is income the family risked losing their subsidized housing. Each of these fac tors is present here to some degree. There are differences between the cases. Mr. Gauvin has five dependents, and Mr. Galante had only three. Mr. Ga uvin has a record of domestic abuse, Mr. Galante did not. The differences betwee n the cases certainly continue. And the differences are not conclusive either way –in fact, that is the point. The difficulty, if not impossibility, of conducting a s ystematic weighing of such detailed facts at the appellate level is the reason district courts are granted such broad discretion in making the determination. Acco rdingly, we cannot say the22

exceptional family circumstances found by the distr ict court are so unsupported by the record as to constitute an abuse of discreti on. Finally, on the fourth determination, we hold the d egree of departure reasonable. The district court departed only three levels downward, from 20 to 17, and sentenced Mr. Gauvin to 37 months. See Rec. vol. VII, at 60-61. The three-level departure reduced Mr. Gauvin’s sentence from four years and three months to three years and a month. While not insig nificant, this departure does not seem unreasonable. The judge further justifiedthe degree of departure on the basis that it made Mr. Gauvin eligible for the Shoc k Incarceration Program pursuant to section 5F1.7 of the Sentencing Guideli nes. The judge recommended Mr. Gauvin for admission to the six-month, intensiv e, military-style laborincarceration program. Completion of the program w ould put Mr. Gauvin in a position to work for his employer, while confined t o a half-way house under close-supervision for non-work hours. Thus, Mr. Gauvin could be punished, watched, and prohibited and prevented from using drugs or alcohol, all while minimizing the impact on his four children. We caution that we do not rule that Mr. Gauvin was entitled to the challenged departure as a matter of law. To the co ntrary, we hold only that the district court has the qualifications for making th e departure decision in the greatest measure, and the appellate court should no t lightly supplant the judgment.23

We simply cannot say the facts provide so little support for the court’s decision as to make that decision an abuse of discretion.

For the aforementioned reasons, we AFFIRM Mr. Gauvi n’s conviction and sentencing in all respects.