1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-19-1997

United States v. Baird

Precedential or Non-Precedential:

Docket 96-1342

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Recommended Citation

"United States v. Baird" (1997). 1997 Decisions. Paper 66.

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1
1

IN THE UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

_____________ 

NO. 96-1342 

_____________ 

UNITED STATES OF AMERICA, 

 Appellee

v. 

JOHN BAIRD, 

 Appellant

__________________________________ 

On Appeal From the United States District Court 

For the Eastern District of Pennsylvania 

(D.C. Crim. No. 95-cr-00092-1 

__________________________________ 

Argued: November 6, 1996 

Before: BECKER, McKEE, and GARTH, Circuit Judges. 

(Filed March 19, 1997) 

ELIZABETH K. AINSLIE, ESQUIRE (ARGUED) 

Ainslie & Bronson 

2630 One Reading Center 

1101 Market Street 

Philadelphia, PA 19107 

Attorney for Appellant

John Baird

MICHAEL R. STILES, ESQUIRE 

United States Attorney 

WALTER S. BATTY, JR., ESQUIRE 

Assistant United States Attorney 

Chief of Appeals 

WILLIAM B. CARR, JR., ESQUIRE (ARGUED) 

Assistant United States Attorney 

615 Chestnut Street, Suite 1250 

Philadelphia, PA 19106-4476 
2

Attorneys for Appellee

United States of America

______________________ 

OPINION OF THE COURT 

______________________ 

BECKER, Circuit Judge. 

 This is a sentencing appeal. Appellant John Baird is a 

former Philadelphia police officer who was assigned to the 

infamous 5 Squad of the 39th district. The 5 Squad was 

responsible for breaking up drug trafficking operations in an 

area of Philadelphia in which drug dealing has been epidemic. 

Instead of working to uphold the law, Baird, and those of his 

police officer colleagues who were also corrupt, systematically 

broke it. Over the course of a number of years, and in instances 

too numerous to chronicle here, they executed illegal searches, 

detained individuals without legal cause, employed excessive 

force against detainees, caused the false prosecution of numerous 

individuals, and stole money and property from persons they were 

investigating. A seven-count indictment details at least fortyfive such instances. 

 As of this writing, the City of Philadelphia is still 

endeavoring to right all the wrongs caused by the 5 Squad. 

Victims of 5 Squad corruption have lodged numerous civil suits 

against the police department and the city, and settlements are 

costing the city large sums. The District Attorney has been 

reviewing prosecutions arising from 5 Squad activities. That 
3

review has led to the release from prison of a number of innocent 

persons whose convictions rested on evidence wrongfully obtained 

or fabricated by 5 Squad officers. A recent newspaper article 

reported that, as a result of this corruption, the Philadelphia 

District Attorney has dismissed 160 cases and the city has paid 

out more than $3.5 million.1

 Pursuant to a plea bargain, Baird pled guilty to three 

counts of the indictment. The calculation of Baird's sentence 

under the Sentencing Guidelines produced an adjusted offense 

level of 29 and a criminal history category of I for a sentencing 

range of 87 to 108 months. The district court might have 

departed downward from the range pursuant to the government's 

motion under § 5K1.1 of the Guidelines to reward Baird's 

substantial assistance to authorities. Baird's cooperation was 

in fact very great, for he produced evidence against his 5 Squad 

co-conspirators, leading to numerous arrests. The district court 

nonetheless effectively denied the § 5K1.1 motion; it also 

factored Baird's cooperation into the sentence in an unusual 

manner. Instead of departing downward, the district court 

departed upward, imposing a sentence of 156 months (13 years), 

while making it clear that it would have imposed an even greater

sentence but for Baird's cooperation. Importantly for this 

appeal, the court, in fashioning the upward departure, relied 

 

1. See Howard Goodman, Police-Corruption Panel Appointed, The 

Philadelphia Inquirer, Jan. 9, 1997, at B1. 
4

upon conduct underlying dismissed counts. 

 Baird, sorely aggrieved by the perception that his 

cooperation netted him not a decrease but an increase in his 

sentence, has appealed on three grounds. First, he contends that 

the district court erred in considering in connection with the 

upward departure the conduct underlying counts dismissed as part 

of a plea agreement. Second, he submits that the upward 

departure was itself improper. Third, he challenges the extent 

of the upward departure as unreasonable in light of the treatment 

of analogous situations under the Sentencing Guidelines. 

 Although it would seem that after almost ten years of 

experience under the Guidelines the dismissed counts issue should 

have been resolved, unfortunately it has not. There exists a 

circuit split on the issue, and our own jurisprudence, though 

generally recognizing the appropriateness of using conduct 

underlying dismissed counts, is clouded by a recent decision 

suggesting the opposite. Moreover, whatever the general rule, 

Baird argues that the plea bargain sections of the Guidelines 

proscribe the use of dismissed conduct to support an upward 

departure in the case of a bargained plea. We conclude, however, 

that even in the plea bargain context, conduct underlying 

dismissed counts may support an upward departure. We have no 

difficulty with the remaining issues, believing that an upward 

departure was warranted in this case, and that the extent of the 

upward departure was not unreasonable. Accordingly, we affirm. 
5

 I. THE PLEA AGREEMENT AND SENTENCE 

 As we have noted, Baird pled guilty to three counts of 

the indictment. Count Two charged Baird and his codefendants 

with Hobbs Act robbery, see 18 U.S.C. § 1951, in connection with 

an illegal search of a house. During the search, the officers 

seized cash from those present, including from suspected drug 

dealer Edwin Scott. The officers never reported the seizure. 

Count Five charged Baird with conspiracy to violate the civil 

rights of another while acting under the color of state law. See

18 U.S.C. § 241. During this incident, Baird and a codefendant 

illegally detained Arthur Colbert, threatened him, physically 

assaulted him, and then conducted an illegal search of his 

apartment. Count Six charged Baird with obstruction of justice. 

 See 18 U.S.C. § 1503. This count is based on Baird's attempt to 

mislead investigators into believing that a codefendant was not 

involved in the 5 Squad corruption. 

 The terms of the plea agreement made explicit Baird’s 

sentencing exposure. A maximum prison term of 20 years 

accompanied Count Two; a maximum of 10 years accompanied Count 

Five; and a maximum of 5 years accompanied Count Six. In all, 

according to the plea agreement itself, "the total maximum 

sentence which could be imposed is a term of imprisonment of 35 

years . . . ." Moreover, the plea agreement specifically noted 

that "[n]o one has promised or guaranteed to the defendant what 

sentence the Court will impose." The government did, however, 
6

agree that it would move to allow the sentencing court to depart 

from the Sentencing Guidelines pursuant to § 5K1.1 if, in its 

sole discretion, the government determined that Baird fully and 

truthfully cooperated with the prosecution in its investigation 

into the activities of the 5 Squad. Because of Baird’s extensive 

cooperation, the government made such a motion. 

 The computation of Baird's sentence under the 

Sentencing Guidelines is complicated because it involves the 

grouping of counts. We need not concern ourselves with the 

intricacies of this process, however, except to note those 

specific offense characteristics and adjustments the district 

court took into account at sentencing. They include the 

following: a five-level increase under § 2B3.1(b)(2)(C) for the 

use of a handgun; a four-level increase under § 2H1.1(b)(1) 

because Baird was a public official at the time of the offense; a 

two-level increase under § 3A1.3 for restraining the victim of an 

offense; a two-level increase under § 3B1.1(c) for a supervisory 

role in the offense; a two-level increase under § 3B1.3 for abuse 

of a position of trust; a two-level increase under § 3C1.1 for 

obstruction of justice; and a three-level decrease under § 

3E1.1(a), (b) for acceptance of responsibility. The calculation 

led to a total offense level of 29. Because Baird had no prior 

criminal history, his criminal history category was I. Under the 

relevant Sentencing Guidelines, an offense level of 29 with a 

criminal history category of I yields an adjusted guideline range 
7

of 87 to 108 months imprisonment. 

 In fashioning its sentence, the district court focused 

heavily on the significant disruption of governmental functions 

caused by Baird's activities, finding it so great as to justify a 

departure under § 5K2.7, which provides: 

If the defendant’s conduct resulted in a significant disruption 

of a governmental function, the court may increase the 

sentence above the authorized guideline range to 

reflect the nature and extent of the disruption and the 

importance of the governmental function affected. 

1995 U.S.S.G. § 5K2.7. 

 For example, the court observed that "every time a 

search is undertaken in violation of the Constitution, that is a 

significant disruption of Governmental function." As further 

evidence of the disruption, the court cited the many convictions 

that have been set aside because they were based on illegally 

obtained evidence, and the civil litigation that has resulted 

from these wrongful prosecutions. It concluded that the drafters 

of the Sentencing Guidelines simply did not foresee police 

corruption of the type and colossal extent involved here. 

Therefore, it departed upward and sentenced Baird to 156 months 

for Count Two, 120 months for Count Five, and 60 months for Count 

Six. The sentences were to run concurrently, so that Baird's 

total sentence was 156 months, or 13 years. 

 It will be instructive to recite the relevant portions 

of the district court’s reasoning: 

I have considered the guidelines. I do find that there has been 

a significant disruption of a Governmental function 

here. I find there to have been many significant 
8

disruptions of many Governmental functions. And in my 

view, every time a search is undertaken in violation of 

the Constitution, that is a significant disruption of 

Governmental function. 

When somebody chooses to squish the Bill of Rights into the mud, 

that is a significant disruption of Governmental 

function, whatever one thinks about the exclusionary 

rule, and sage people have debated all sides of that 

issue, our Supreme Court has spoken on that. And when 

one does that and does that repeatedly, each and every 

such event constitutes a significant disruption of a 

Governmental function, whether somebody later tattletales on it or not. That it was just a little tree 

falling in the wilderness, a little unconstitutional 

search that some police officer decided not to talk 

about, that disruption occurred then and there. 

That because of this defendant's prodigious memory, his 

willingness to come forth, many of these illicit 

searches have now been overturned, and many, perhaps 

some substantively in the Government's sentencing 

memorandum, suggests all of them substantively 

ultimately justifiable searches from the standpoint of 

whether the drugs actually were there, in most of these 

cases, whether they pan out with continuing convictions 

or whether those convictions are destroyed, and 

consequent civil suits, et cetera, that is another 

aspect of the disruption of governmental function, sort 

of the second stage of it. 

First, is the Constitutional violation and recognition of it, 

then the disruption of the numerous convictions, then 

the lawsuits for people whose Constitutional rights 

were violated. 

Governmental functions in this town have been disrupted 

immeasurably. And I am constrained to conclude that 

the guidelines simply, as all-encompassing the 

seemingly all-foreseeing scriveners of those guidelines 

may have been, didn't fully encompass and embrace the 

breadth of the criminality before us today. 

And I am thus, upon this reasoning, of the view that an upward 

departure is appropriate. Again perhaps toying with 

semantics here, I am perhaps in trying to honestly 

convey to you my thinking on the subject, there is 

implicit in what I am going to impose something of a 

downward departure. 

I would be hitting you harder, frankly, were it not for the 
9

cooperation. I recognize the irony in his zeal to 

cooperate and cheapen his sentence of being hit hard, 

but actually the jail, the prisons of the Commonwealth 

and the United States of America from the Atlantic to 

the Pacific, are full of people who have been 

incarcerated for a lot longer than this man is going to 

go, simply because they got talkative in the Roundhouse 

[the Philadelphia police administration building] or 

some similar edifice in some other municipality. 

But I think under the circumstances of this case an upward 

departure is not only appropriate but essential. 

Upon release from imprisonment, the defendant shall be placed on 

supervised release for a term of three years. 

 The sentence actually given to Baird far exceeded his 

sentencing range as calculated under the Guidelines. In effect, 

the upward departure was either a four-level increase to an 

offense level of 33, criminal history category of I, and a 

sentencing range of 135 to 168 months; or a five-level increase 

to an offense level of 34, criminal history category of I, and a 

sentencing range of 151 to 188 months. As is evident from the 

passages quoted above, the precise anatomy of the actual 

departure is unclear because the district court was general 

rather than specific in explaining the departure justification. 

 Baird timely appealed from the judgment. The district 

court properly exercised jurisdiction over the matter under 18 

U.S.C. § 3231; we exercise appellate jurisdiction over the final 

judgment of the district court under 18 U.S.C. § 3742 and 28 

U.S.C. § 1291. 

 II. MAY CONDUCT UNDERLYING DISMISSED COUNTS BE CONSIDERED? 

 A. Introduction

 Baird's first contention on appeal is that the district 
10

court improperly departed upward from the Guideline range based 

on conduct underlying counts to which Baird did not plead guilty 

and which were dismissed by reason of the plea agreement.2 As we 

have noted, the point is still somewhat controversial; four 

circuits allow consideration of dismissed counts, and two others 

do not. See infra, part II, section B. Our analysis of this 

contention, therefore, requires close scrutiny of a number of 

provisions in the Sentencing Guidelines. We undertake such 

scrutiny in light of Koon v. United States, U.S. , 116 S. 

Ct. 2035 (1996), which teaches that appellate review of a 

district court's decision to depart from the Guidelines is 

essentially subject to an abuse of discretion standard. See id.

at 2046-48. Any legal error in applying the Guidelines would 

constitute such an abuse. See id. at 2047-48. 

 B. Analysis

 Whether a sentencing court can consider conduct 

underlying dismissed counts is at bottom a legal question about 

which there continues to be not only disagreement but also a 

 

2. Although the district court did not particularize the reasons 

for departing from the applicable sentencing range, the parties 

do not dispute that the court relied on conduct not underlying 

the charged offenses, some of which was conduct underlying counts 

dismissed as per the plea agreement. A review of the sentencing 

hearing transcript confirms that this is so. Baird has also 

argued that the district court did not sufficiently consider the 

§ 5K1.1 motion. We disagree. Although the court did not 

explicitly state that it was denying the motion, nor did it state 

the reasons for doing so, it is clear from the record that the 

court carefully considered Baird's cooperation within the § 5K1.1 

frame of reference. 
11

certain amount of confusion. As we proceed, we bear in mind that 

not only is each guideline legally binding on the courts, see

Mistretta v. United States, 488 U.S. 361, 391 (1989), but so too 

are the accompanying policy statements, see Williams v. United 

States, 503 U.S. 193, 199-201 (1992), and commentary, see Stinson 

v. United States, U.S. , 113 S. Ct. 1913, 1917-18 (1993), 

so long as neither the policy statements nor the commentary is 

inconsistent with any guideline. 

 The Guidelines afford sentencing courts considerable 

leeway as to the information they may consider when deciding 

whether to depart from the Guideline range. Section 1B1.4 

specifically states that in determining whether a departure is 

warranted, "the court may consider, without limitation, any 

information concerning the background, character and conduct of 

the defendant, unless otherwise prohibited by law." 1994 

U.S.S.G. § 1B1.4. Moreover, with respect to conduct underlying 

dismissed counts, the commentary to § 1B1.4, when read in 

conjunction with the commentary to § 1B1.3, indicates that 

considering such conduct is appropriate. The commentary to § 

1B1.4 declares that "information that does not enter into the 

determination of the applicable guideline sentencing range may be 

considered in determining whether and to what extent to depart 

from the guidelines." Id. § 1B1.4, comment., backg. And, the 

commentary to § 1B1.3 states that "[c]onduct that is not formally 

charged or is not an element of the offense of conviction may 
12

enter into the determination of the applicable guideline 

sentencing range." Id. § 1B1.3, comment., backg.3

 It must be, therefore, that conduct not formally 

charged or not an element of the offense can be considered at 

sentencing; if such information can be considered in determining 

the applicable guideline range under § 1B1.3, then such 

information can be considered in determining whether to depart 

from that range under § 1B1.4. Thus, conduct underlying 

dismissed counts -- which is conduct that is neither formally 

charged nor an element of the offense -- may be considered at 

sentencing.4

 

3. Section 1B1.3 does, of course, place some limits on the 

information considered when determining the applicable sentencing 

range. Under § 1B1.3(a)(1), the relevant conduct must have 

"occurred during the commission of the offense of conviction, in 

preparation for that offense, or in the course of attempting to 

avoid detection or responsibility for that offense." 1994 

U.S.S.G. § 1B1.3(a)(1). In this case, the conduct underlying the 

dismissed counts might or might not fit this definition. Under § 

1B1.3(2), with respect to offenses for which grouping under § 

3D1.2(d) is appropriate, conduct that is "part of the same course 

of conduct or common scheme or plan as the offense of conviction" 

can be considered. Id. § 1B1.3(2). Certainly, the conduct 

underlying the dismissed counts in this case is part of the same 

course of conduct or common scheme or plan as the offense of 

conviction. See id. § 1B1.3, comment., application note 9 

(defining "common scheme or plan" and "same course of conduct"). 

 But, only some of the dismissed counts would be grouped under § 

3D1.2(d); the other counts include multiple counts of offenses 

that are specifically excluded from the grouping rules. However, 

as is noted in the text, the information considered under § 1B1.4 

is broader than that considered under § 1B1.3. Therefore, that 

the conduct underlying the counts dismissed in this case may not 

be considered under § 1B1.3 does not preclude its consideration 

under § 1B1.4. 

4. It should be noted that we are considering only offense level 

departures and not criminal history category departures. For 

sake of completeness, we note that it seems that, under § 4A1.3, 
13

 This conclusion is supported by the weight of the case 

law. The leading case is United States v. Kim, 896 F.2d 678 (2d 

Cir. 1990) (allowing the consideration of conduct underlying 

dismissed counts). In Kim, the Second Circuit identified four 

ways in which the Guidelines addressed misconduct not resulting 

in conviction. See id. at 682-84. First, the Guidelines take 

cognizance of acts that typically accompany or occur in the 

course of an offense. These specific offense characteristics 

determine the severity of the offense. Second, the Guidelines 

create rules concerning misconduct to which the parties stipulate 

in connection with the entry of a plea. Third, calculating the 

criminal history category under the Guidelines requires an 

(..continued) 

conduct underlying dismissed counts can also be considered. 

Section 4A1.3 states that a court may depart from the applicable 

guideline range if reliable information leads it to believe that 

a defendant's criminal history category under- or over-represents 

the seriousness of the defendant's past criminal history. Such 

information includes, inter alia, "prior similar adult criminal 

conduct not resulting in a criminal conviction." 1994 U.S.S.G. § 

4A1.3(e). 

 We do not believe, however, that, given the 

circumstances of the present case, a criminal history category 

departure would have been warranted. By use of the term "prior," 

the Sentencing Guidelines seems to imply that a criminal history 

category departure under § 4A1.3(e) is appropriate only when the 

conduct in question is unrelated to, different from, or not part 

of the offense conduct. See United States v. Kim, 896 F.2d 678, 

683 (2d Cir. 1990). As the Supreme Court has stated, "the 

difference between 'criminal history' and 'relevant conduct' is 

more temporal than qualitative, with the former referring simply 

to a defendant's past criminal conduct . . . and the latter 

covering activity arising out of the same course of criminal 

conduct as the instant offense." Witte v. United States, 

U.S. , 115 S. Ct. 2199, 2207 (1995) (citations omitted). 

Here, the conduct underlying the dismissed counts are part of the 

same criminal activity as the offense conduct. 
14

analysis of misconduct not resulting in a conviction. Finally, 

the Guidelines envision departures based on misconduct not 

resulting in conviction. Against this background, the court in 

Kim concluded that "with respect to acts of misconduct not 

resulting in conviction, the [Sentencing] Commission intended to 

preclude departures for acts bearing no relationship to the 

offense of conviction, but to permit departures for acts that 

relate in some way to the offense of conviction, even though not 

technically covered by the definition of relevant conduct." Id.

at 684; accord United States v. Barber, 93 F.3d 1200, 1209-12 

(4th Cir. 1996); United States v. Big Medicine, 73 F.3d 994, 997-

98 (10th Cir. 1995); United States v. Ashburn, 38 F.3d 803, 807-

08 (5th Cir. 1994) (en banc), cert. denied, 115 S. Ct. 1969 

(1995); United States v. Zamarripa, 905 F.2d 337, 341-42 (10th 

Cir. 1990). 

 In a related vein, the Supreme Court recently held that 

a sentencing court is permitted to consider conduct of which a 

jury acquitted a defendant. See United States v. Watts, U.S. 

 , 117 S. Ct. 633 (1997).5 In so doing, the Court engaged in a 

close analysis of statutory authority, the Sentencing Guidelines 

(particularly § 1B1.3 and § 1B1.4), its own precedent, and preGuidelines sentencing practices. See id. at 635-36. With 

sweeping language, the Court made plain that a sentencing court 

 

5. In United States v. Ryan, 866 F.2d 604 (3d Cir. 1989), we had 

reached the same conclusion. 
15

is entitled to examine a broad range of factors that may relate 

to the defendant's conduct, including, but apparently not limited 

to, the defendant's life, characteristics, and past criminal 

behavior, even if such behavior did not result in criminal 

convictions. See id. at 635. According to the Court, the 

Guidelines kept in place a sentencing system in which there was 

no "basis for the courts to invent a blanket prohibition against 

considering certain types of evidence at sentencing." Id.6

 Watts strongly suggests that a sentencing court may 

consider conduct underlying dismissed counts. If a sentencing 

court can consider conduct that a jury, after trial, believed to 

be unproven beyond a reasonable doubt, it would surely seem that 

a sentencing court can consider conduct underlying a count that, 

by plea agreement, has been dismissed without having been tested 

in an adversarial process. We note that in Watts the sentencing 

courts considered acquitted conduct when calculating the 

applicable guideline range. Although neither of the underlying 

cases in Watts was a departure case, we find nothing in Watts

that implies that the Supreme Court would treat a departure case 

 

6. Two of the Justices who wrote in Watts disagree over whether, 

after Watts, the Sentencing Commission has the power to limit the 

ability of sentencing courts to consider acquitted conduct. 

Justice Scalia believes only Congress may do so, see Watts, 117 

S. Ct. at 638 (Scalia, J., concurring); Justice Breyer contends 

that the Commission may do so on its own, see id. at 638-39 

(Breyer, J., concurring). We agree with Justice Breyer, and for 

the reasons set forth by Judge Wald in her eloquent concurring 

opinion in United States v. Baylor, 97 F.3d 542, 549-53 (D.C. 

Cir. 1996), urge the Sentencing Commission to prohibit sentencing 

courts from considering acquitted conduct during sentencing. 
16

any differently. In fact, the Court relies heavily on § 1B1.4, 

which governs the information applicable to departures, in 

reaching its conclusion. 

 The foregoing analysis does not lead ineluctably to the 

conclusion that any conduct underlying a dismissed count may be 

considered at sentencing. The conduct underlying the dismissed 

counts must be related in some way to the offense conduct. To be 

related conduct, the conduct need not, however, fit the 

definition of relevant conduct under § 1B1.3. Without attempting 

to define with precision the meaning of “related,” we again 

follow United States v. Kim, supra, and hold that the acts in 

question must exhibit commonalities of factors sufficient to 

allow for a reasonable grouping of the separate, individual acts 

into a larger, descriptive whole. It is not enough, however, 

that the acts stand in close temporal relation to one another. 

Rather, the similarities of the acts must arise from the 

character or type of the acts. 

 The Second Circuit's logic in Kim in this respect is 

compelling. It began by noting that specific offense 

characteristics for a given guideline represent typical 

occurrences during the commission of the specific crime covered 

by the guideline. See id. at 682. It went on to note that the 

relevant conduct guideline, § 1B1.3, is limited to conduct that 

is somehow related to the offense of conviction. See id. at 682-

83. Then, the court noted that in determining the criminal 
17

history category a court is directed to similar, prior conduct 

under § 4A1.3(e). See id. at 683. Finally, the court looked at 

the language the Guidelines employ with respect to departures and 

pointed out that departures should only be based on conduct 

related to the offense of conviction. See id.

 The court concluded that these provisions, when taken 

together, make clear that a sentencing court may only consider 

dismissed conduct if it is related to the charged conduct. In 

the case at bar, it is clear that the conduct underlying the 

dismissed counts was sufficiently related to the charged conduct. 

 All of the acts, whether charged or not, involved essentially 

the same type of illegal searches and seizures and essentially 

the same perpetrators. The only differences appear to be the 

identity of the particular victims.7

 

7. We must also bear in mind the standard of proof that must be 

met before a judge may consider disputed information at 

sentencing. As we held in United States v. Kikumura, 918 F.2d 

1084 (3d Cir. 1990), facts deemed relevant to a departure from 

the Guidelines sentencing range generally need be proved only by 

a preponderance of the evidence. See id. at 1098-102; cf. 1994 

U.S.S.G. § 6A1.3, comment. ("The Commission believes that use of 

a preponderance of the evidence standard is appropriate to meet 

due process requirements and policy concerns in resolving 

disputes regarding application of the guidelines to the facts of 

a case."). In rare circumstances, however, the sentencing 

hearing may become the "tail which wags the dog of the 

substantive offense." Kikumura, 918 F.2d at 1101 (quoting 

McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986)). In such 

cases, the fact finding underlying the departure must be 

established by clear and convincing evidence. See id.

 The case before us does not present that rare 

circumstance. The departure here was at most five levels. A 

five-level departure is not extreme enough to require proof by 

the clear and convincing standard. See id. at 1100 (reasoning 

that the facts underlying a six-level departure need be proven 

only by a preponderance and that a ten-level increase is 
18

 The Ninth Circuit in United States v. Castro-Cervantes, 

927 F.2d 1079 (9th Cir. 1990) reached a conclusion different from 

the Second Circuit. It held that a court could not consider the 

conduct underlying dismissed counts -- whether related to the 

offense conduct or not -- when making a departure determination. 

 See id. at 1081-82. (A more complete discussion of CastroCervantes is more appropriately taken up later. See infra part 

II, section D.); see also United States v. Harris, 70 F.3d 1001, 

1003-04 (8th Cir. 1995) (holding that consideration of conduct 

underlying dismissed counts to support an upward departure is 

inappropriate). Notwithstanding its Castro-Cervantes holding, 

the Ninth Circuit also made clear, in United States v. Fine, 975 

F.2d 596 (9th Cir. 1992), that the rule in Castro-Cervantes only 

applies to departures based on conduct underlying counts 

dismissed pursuant to a plea agreement; Castro-Cervantes did not 

limit consideration of such conduct as relevant conduct in 

determining the applicable sentencing range. See id. at 602. 

C. Does United States v. Thomas Undermine Our Conclusion?

 Before proceeding further, we must consider whether our 

decision in United States v. Thomas, 961 F.2d 1110 (3d Cir. 

1992), which arguably calls into question our conclusion that 

consideration at sentencing of conduct underlying dismissed 

(..continued) 

"probably" subject to the same standard). Moreover, the conduct 

underlying the dismissed counts on which the sentencing court 

relied was proven by more than a preponderance of the evidence. 

Baird himself supplied the factual basis for the counts when he 

began to cooperate in the investigation. 
19

counts is permissible, undermines our conclusions. In Thomas, in 

the course of obtaining firearms from a gun shop, the defendant 

falsely stated on four Bureau of Alcohol, Tobacco and Firearms 

forms that he had never been convicted of a crime punishable by a 

prison term in excess of one year. In fact, the defendant had a 

lengthy criminal record. As part of a plea agreement, the 

defendant agreed to plead guilty to four counts of making false 

statements in connection with the purchase of a firearm. In 

exchange, the government agreed not to charge him with possession 

of a firearm by a convicted felon, a crime that carried with it a 

mandatory minimum sentence of 15 years. At sentencing, the 

district court departed from the applicable Sentencing Guideline 

range of 24-30 months. It justified the departure by its finding 

that the defendant's criminal history category, the highest 

category under the Guidelines, under-represented the defendant's 

criminal history because it did not take into account juvenile 

convictions, the likelihood of recidivism, and parole 

revocations. 

 As an alternative argument supporting the decision to 

depart, the government argued on appeal that, even assuming that 

the factors on which the district court relied to depart from the 

criminal history category were improper, the court could have 

departed based on the conduct not charged. The Thomas panel 

disagreed; it wrote that a sentencing court could not depart from 

the Guidelines to account for conduct underlying a forgone 
20

charge. See id. at 1121 ("It would be a dangerous proposition to 

allow district courts to base upward departures on crimes that 

were not actually charged."). 

 Although Thomas seems to suggest that consideration at 

sentencing of conduct underlying dismissed counts is improper, we 

believe that any such conclusion is incorrect. We have explained 

how our conclusion flows from Watts, a Supreme Court decision. 

To the extent that Thomas is inconsistent with Watts, Thomas will 

of course be deemed without effect.8 Even assuming that Watts is 

not controlling because Watts and Thomas arose in different 

factual contexts -- the issue in Watts was the consideration of 

acquitted conduct and that in Thomas was of dismissed conduct -- 

Thomas is distinguishable from the present case. The particular 

facts of Thomas and our irritation with the government’s position 

relative to those facts largely determined the result. 

 Thomas presented an unusual plea agreement. The 

 

8. In another recent opinion, we stated that "there is no reason 

why facts relating to a count on which a defendant is acquitted 

or which is dismissed may not be germane with respect to a count 

on which he is convicted." United States v. Goggins, No. 96-

3154, slip op. at 6 (3d Cir. Oct. 30, 1996) (citing Ryan). That 

language implies that Ryan, see supra note 5, (and, by 

implication, Watts) and not Thomas controls the consideration of 

conduct underlying dismissed counts. We are reluctant to rely on 

Goggins for that proposition, however, because the count at issue 

in Goggins was dismissed by operation of law and not by virtue of 

a plea agreement. See id. at 3. Dismissal by operation of law 

and dismissal by virtue of a plea agreement implicate different 

policy concerns, counseling against the application of Goggins in 

this context. At all events, as we note in the text, because we 

believe that consideration of conduct underlying the dismissed 

counts in this case is appropriate under Watts (and even Thomas), 

we need not rely on Goggins. 
21

government "expressly declined to prosecute" the defendant for 

illegal possession of a firearm. See Thomas, 961 F.2d at 1124 

n.1 (Greenberg, J., concurring). To prosecute would have 

triggered the provisions of the armed career criminal act. See

id. at 1112. The armed career criminal act operates much like an 

"on/off switch" in that it applies automatically if its 

prerequisites are met. See id. at 1122. Moreover, once it 

applies, the armed career criminal act imposes a mandatory 

minimum sentence; there is no incremental increase in the 

associated penalties. See id. By arguing for consideration of 

the conduct underlying the forgone charge, the government in 

effect reneged on its agreement, and sought to alter the armed 

career criminal act and impose on it a sliding scale it does not 

have, ie., change the fundamental nature of the act so that it 

operated like a dimmer switch. The government did so by arguing 

that an upward departure -- to a sentence less harsh than that 

mandated by the armed career criminal act -- was warranted 

because it had not sought application of the armed career 

criminal act. The government wanted the armed career criminal 

act to play a role in sentencing, but not too much of a role. 

The court in Thomas plainly disapproved of this attempt.9

 

9. The majority in Thomas commented that “[f]airness dictates 

that the government not be allowed to bring the firearm 

possession crime through the ‘back door’ in the sentencing phase, 

when it had previously chosen not to bring it through the ‘front 

door’ in the charging phase.” Thomas, 961 F.2d at 1121. The 

concurrence echoed these sentiments when it said that “[t]he real 

problem in this case is that the prosecutor has declined to 

enforce a law which represents an important policy determination 
22

 Thomas, as we read it, would not foreclose all 

consideration of conduct underlying dismissed counts. Instead, 

Thomas seems to be directed at the particular circumstances 

presented by that case. See id. at 1124 n.1 (Greenberg, J., 

concurring) ("I do not understand the opinion to preclude in all 

circumstances the possibility of a departure predicated on 

conduct which could have been the basis for additional charges 

but was not. Here there is a special situation . . . ."). 

Because the circumstances of the present case differ 

substantially from those of Thomas, Thomas should not control our 

inquiry.10 . 

D. Import of the Policy Statement Concerning Plea Agreements

 Baird contends alternatively that the policy statement 

(..continued) 

by Congress.” Id. at 1124 (Greenberg, J., concurring). 

10. The government contends that a second of our cases, United 

States v. Johnson, 931 F.2d 238 (3d Cir. 1991), would assist in 

our analysis. In Johnson, the defendant was indicted for the 

armed robbery of three individuals. The indictment charged the 

defendant with three counts of assault, one count for each of the 

individual victims. As part of the plea agreement, the 

government dropped all but one of the assault charges, but the 

district court departed upward from the applicable sentencing 

range because the assault involved three victims. The government 

submits that the case thus supports the proposition that we will 

allow a sentencing court to depart based on conduct underlying 

dismissed counts. We agree with Baird, however, that Johnson

offers little guidance. The defendant in Johnson apparently did 

not make the argument Baird makes here. Rather, he seems to have 

conceded that the sentencing court could have considered the 

assaults underlying the counts the government dismissed. See id.

at 241 ("[The defendant] argues that since he pled guilty to the 

aggravated assault of [one victim], there were only two 

additional victims, and thus it was unreasonable for the court to 

have departed more than two levels."). The panel in Johnson, 

therefore, did not address the question before us. 
23

outlining the standards for accepting a plea agreement prohibits, 

as a matter of law, consideration of conduct underlying a 

dismissed charge. The relevant portion of the policy statement 

follows: 

In the case of a plea agreement that includes the dismissal of 

any charges or an agreement not to pursue potential 

charges [Rule 11(e)(1)(A)], the court may accept the 

agreement if the court determines, for reasons stated 

on the record, that the remaining charges adequately 

reflect the seriousness of the actual offense behavior 

and that accepting the agreement will not undermine the 

statutory purposes of sentencing or the sentencing 

guidelines. 

Provided, that a plea agreement that includes the dismissal of a 

charge or a plea agreement not to pursue a potential 

charge shall not preclude the conduct underlying such 

charge from being considered under the provisions of § 

1B1.3 (Relevant Conduct) in connection with the 

count(s) of which the defendant is convicted. 

1994 U.S.S.G. § 6B1.2(a). 

 According to Baird, the first paragraph of this subpart 

means that, if the court believed that the counts not dismissed 

by virtue of the plea agreement did not satisfactorily account 

for the seriousness of the actual offense, then what the court 

should have done is to reject the plea agreement. In other 

words, Baird asserts, conduct underlying dismissed counts 

provides grounds for rejecting a plea agreement but not for 

departing from the applicable sentencing range. 

 Baird draws support for this argument from CastroCervantes. The Ninth Circuit in Castro-Cervantes reasoned that 

if a plea agreement does not reflect the seriousness of the 

offense, the court should reject the agreement at the outset; at 
24

sentencing, it is too late to seek to address shortcomings in the 

plea agreement. Allowing a court to depart from the sentencing 

range based on conduct underlying dismissed counts would 

"violate[] the spirit if not the letter of the bargain" 

represented by the plea agreement. Castro-Cervantes, 927 F.2d at 

1082. The Ninth Circuit expanded on the policy justifications 

driving Castro-Cervantes by noting that "allow[ing] judges to 

depart from the Guidelines on the basis of counts that have been 

dropped pursuant to plea agreements would severely undermine the 

incentive of defendants to enter into plea agreements." United 

States v. Faulkner, 952 F.2d 1066, 1070 (9th Cir. 1991).11

 We disagree. This argument begs the ultimate question. 

 Whether a court accepts a plea agreement is dependent, to some 

extent, on the information it can consider at sentencing. If the 

court is aware that it cannot consider conduct underlying 

dismissed counts at sentencing, then it may be more reluctant to 

accept a plea agreement. The opposite is also true. If the 

court is aware that it may consider conduct underlying dismissed 

counts at sentencing, then it may more readily accept a plea 

 

11. Faulkner also discussed the potential conflict between 

Castro-Cervantes and United States v. Loveday, 922 F.2d 1411 (9th 

Cir. 1991). In Loveday, the court followed the reasoning in Kim

and held that conduct underlying dismissed counts could be 

considered when determining whether to depart. See id. at 1417. 

 The court in Faulkner distinguished Loveday by arguing that the 

restriction imposed by § 6B1.2(a) -- that of requiring a court to 

reject a plea agreement that did not reflect the seriousness of 

the offense -- was not raised in Loveday. See Faulkner, 952 F.2d 

at 1071 n.3. 
25

agreement. At all events, we do not see Baird’s argument from § 

6B1.2(a) as undercutting the conclusion we have already reached 

regarding the use of dismissed conduct. The language of the 

policy statement is insufficiently specific to contradict the 

clearer guidance provided by other sections of the Guidelines and 

the Supreme Court, discussed supra. 

 Baird also argues that the second paragraph of this 

policy statement implies that conduct underlying dismissed counts 

may only be used to determine the applicable sentencing range 

under § 1B1.3, but may not be used to determine whether to depart

from that range. Otherwise, the argument continues, the first 

paragraph of this subpart would be mere surplusage; no court 

would hesitate to accept a plea agreement that includes dismissed 

counts if that court could always consider the conduct underlying 

those dismissed counts. 

 We disagree. As noted above, § 1B1.3, § 1B1.4, and the 

commentary thereto make clear that the information appropriately 

considered in a decision to depart is broader than that 

considered in determining the applicable guideline range. If § 

6B1.2(a) does not preclude a court from examining conduct 

underlying dismissed counts in determining the applicable 

sentencing range (in fact, the proviso contained in the last 

paragraph of § 6B1.2(a) seems to encourage it), then we see no 

reason why it should preclude the court from examining the same 
26

information when deciding whether to depart.12

 Moreover, even if a court actually considers conduct 

underlying a dismissed count, it does not automatically ensure 

that the remaining charges will reflect the seriousness of the 

actual offense conduct. The statutory maximum sentence for the 

remaining charges may be relatively low; in such a case, it might 

be of little significance that a court could consider conduct 

underlying dismissed counts because that court would be unable to 

impose a sentence in excess of the statutory maximum. Under our 

 

12. There is a potential argument that § 6B1.2(a), by use of the 

language "in connection with the count(s) of which the defendant 

is convicted," places some limit on the type of information that 

can be considered in this regard. 1994 U.S.S.G. § 6B1.2(a) 

(emphasis added). Such language might limit the information 

considered to that which is somehow related -- substantively and 

not merely temporally -- to the offense of conviction. As we 

discussed in the text supra, part II, section A, we agree, but 

reach the same conclusion employing slightly different reasoning. 

 The second paragraph of § 6B1.2(a) was not added until 

1992, after many of the offenses charged in the indictment had 

occurred. Thus, there is also a potential argument that 

amendments to § 6B1.2(a) render the 1994 Sentencing Guidelines 

inapplicable. As a general rule, the applicable Guidelines are 

those in effect at the time of sentencing. See United States v. 

Kopp, 951 F.2d 521, 526 (3d Cir. 1991). To avoid Ex Post Facto 

Clause complications, we will apply the Guidelines in effect at 

the time of the offense if doing otherwise would result in a 

harsher sentence. See id. However, as suggested in the text, 

the second paragraph in § 6B1.2(a) merely reinforces the 

conclusion reached -- from examination of § 1B1.3, § 1B1.4, and 

the commentary thereto -- that conduct underlying dismissed 

counts can be used to justify an upward departure. So as to 

avoid the potential inapplicability of the section, we do not 

rely on § 6B1.2(a) as independent support for our conclusion. 

For defendants whose offenses occurred after the amendment to § 

6B1.2(a), it may very well be that the section provides such 

independent support. Both § 1B1.3 and § 1B1.4 have been amended 

as well, but, as far as we can tell, the amendments do not bear 

on our inquiry here. 
27

interpretation of the Guidelines, then, a court might reject a 

plea agreement because it believes that the statutory maximum 

sentence for the remaining counts is too short to account both 

for the charged conduct and for the dismissed conduct. Contrary 

to Baird’s submission, then, the first paragraph of § 6B1.2(a) is 

not mere surplusage. 

E. Policy Justifications

 Our conclusion that conduct underlying dismissed counts 

may be considered when determining whether to depart from the 

applicable Sentencing Guidelines range comports with the policies 

underlying the Guidelines themselves. The Guidelines are, at 

bottom, a modified real offense system. See 1994 U.S.S.G. chap. 

1, pt. A, intro. comment. 4(a). More specifically, they are a 

mix of a charge offense system and a pure real offense system in 

that it bases a sentence on both the formal offense of conviction 

and on the actual conduct of the defendant. See Stephen Breyer, 

The Federal Sentencing Guidelines and the Key Compromises Upon 

Which They Rest, 17 Hofstra L. Rev. 1, 8-12 (1988). Therefore, 

it is clear that the Guidelines envisioned that sentencing courts 

would consider at least some conduct for which a defendant was 

not actually charged. 

 We are unconvinced by Baird’s argument that use of 

conduct underlying dismissed counts will deny defendants the 

benefit of the plea agreement bargain, nor, as we explained, see

supra part II, section D, do we find persuasive the contention 
28

that without that benefit there will be no incentive for 

defendants to plea bargain. In the usual case, the plea 

agreement makes clear that the sentencing court is not bound by 

the agreement. Within statutory bounds, the sentencing court has 

great discretion. If a defendant is sentenced to a term of 

imprisonment within the maximum set out in the plea agreement, it 

is difficult to see the grounds on which a defendant can rest a 

complaint; the defendant got what he bargained for.13

 At all events, the incentive to plea bargain remains. 

The defendant can limit the sentencing court's discretion by 

bargaining to plead guilty only to charges with lower statutory 

maxima. Of course, the court may reject that plea agreement. 

And, if the defendant pled pursuant to Federal Rule of Criminal 

Procedure 11(e)(1)(A) -- which allows the government to dismiss 

charges -- or 11(e)(1)(C) -- which allows the government and 

defendant to agree on a specific sentence -- he can withdraw his 

plea.14 Moreover, the Sentencing Guidelines allow for an 

 

13. In this case, Baird's sentence -- 13 years -- fell well 

within the statutory maximum -- 35 years -- set out in the plea 

agreement. 

14. Baird made no request to withdraw his plea. Therefore, we 

would not be inclined to allow him to do so, even under the 

theory that by departing upward from the Guidelines the 

sentencing court effectively rejected the plea agreement. 

Moreover, the plea agreement in this case made clear that Baird 

could not withdraw his plea on the grounds that the court 

declined to follow any recommendation, motion, or stipulation by 

the government. It appears, then, that the plea was subject to 

Federal Rule of Criminal Procedure 11(e)(1)(B), which, under Rule 

11(e)(2), may not be withdrawn if rejected by the court. 
29

adjustment of offense level for the acceptance of responsibility, 

 see 1994 U.S.S.G. § 3E1.1, and courts routinely make this 

adjustment for defendants who plead guilty. 

F. Summary

 We conclude that a sentencing court, in its 

determination whether to depart from the sentencing range made 

applicable by the Sentencing Guidelines, may consider conduct 

underlying counts dismissed pursuant to a plea agreement, 

provided that such conduct is related to the conduct forming the 

basis of the remaining counts and that such conduct is proved by 

at least a preponderance of the evidence. In this case, it was 

appropriate for the district court to consider conduct underlying 

the counts against Baird that were dismissed. That conduct was 

related to the charged conduct and it was proved by at least a 

preponderance of the evidence. 

III. DID THE DISTRICT COURT ABUSE ITS DISCRETION IN DECIDING TO 

DEPART? 

 We now must determine whether, given the information 

before it, the district court abused its discretion by departing 

from the applicable guideline range. Unlike our discussion 

heretofore, the legal standard is relatively clear, and our focus 

will be on the particular factual circumstances presented by this 

case. 

A. Introduction

 Section 5K2.0, Grounds for Departure, provides a 
30

roadmap for a decision to depart from the applicable Guideline 

range. In the usual case, a sentencing court must impose a 

sentence within the Guideline range. See 18 U.S.C. § 3553(b). 

For the most part, a court can "treat each guideline as carving 

out a 'heartland,' a set of typical cases embodying the conduct 

that each guideline describes." See 1994 U.S.S.G. ch. 1, pt. A, 

intro. comment. 4(b). However, the Sentencing Commission 

recognizes that “it is difficult to prescribe a single set of 

guidelines that encompasses the vast range of human conduct 

potentially relevant to a sentencing decision.” Id. Therefore, 

a court may depart from the range if it “finds that there exists 

an aggravating or mitigating circumstance of a kind, or to a 

degree, not adequately taken into consideration . . . in 

formulating the guidelines.” 18 U.S.C. § 3553(b); see 1995 

U.S.S.G. § 5K2.0. It is only in the unusual case, one outside 

the “heartland,” in which a departure is authorized. See Koon, 

116 S. Ct. at 2044. Except for a limited number of prohibited 

factors, the Guidelines do not “limit the kinds of factors, 

whether or not mentioned anywhere else in the guidelines, that 

could constitute grounds for departure in an unusual case.” 1995 

U.S.S.G. ch. 1, pt. A, intro. comment. 4(b).15

 “Sentencing courts are not left adrift, however.” 

 

15. The prohibited factors are race, sex, national origin, 

creed, religion, and socio-economic status (§ 5H1.10); lack of 

guidance as a youth (§ 5H1.12); drug or alcohol dependence (§ 

5H1.4); and economic duress (§ 5K2.12). See 1995 U.S.S.G. ch. 1, 

pt. A, intro. comment. 4(b). 
31

Koon, 116 S. Ct. at 2045. The Guidelines list factors that are 

encouraged as bases for departure and those that are discouraged. 

 Section 5K2.0 introduces the subject. As § 5K2.0 explains, the 

Commission “seeks to aid the [sentencing] court by identifying 

some of the factors that [it] has not been able to take into 

account fully in formulating the guidelines.” 1995 U.S.S.G. § 

5K2.0. Those factors are included in §§ 5K2.1-5K2.18, and cover 

issues such as the death or injury of a victim, the harm to 

property or government interests, the purpose or cause of the 

offense, the particular conduct of the defendant, and the like. 

In Chapter 5, Part H, the Guidelines list a number of discouraged 

factors. These are “factors [that] are not ordinarily relevant 

to the determination of whether a sentence should be outside the 

applicable guideline range.” 1995 U.S.S.G. ch. 5, pt. H, intro. 

comment. They include, but are not limited to, a defendant’s age 

(§ 5H1.1), education or vocational skills (§ 5H1.2), or 

employment history (§ 5H1.5). 

 In Koon, the Supreme Court explained how a sentencing 

court is to factor prohibited, encouraged, and discouraged 

factors into the sentencing decision. If the unusual or special 

factors presented by a case are prohibited factors, a court may 

not depart on that basis alone. See Koon, 116 S. Ct. at 2045. If 

the unusual or special factors are encouraged factors, a court is 

merely authorized to depart. See id. A departure employing 

encouraged factors is commonly referred to as a “guided” 
32

departure. If the unusual or special factors are discouraged, or 

if they are encouraged factors that have been taken into account 

by the relevant guideline, then a court may depart only if the 

"factor[s are] present to an exceptional degree or in some other 

way make[] the case different from the ordinary case where the 

factor[s are] present." Id. Finally, a sentencing court may 

depart even if the unusual or special factors have not been 

mentioned in the Guidelines, but only in rare circumstances. See

id. Such a departure would be “unguided.” 

B. Can the Disruption of Government Function Serve as a Basis 

for Departure in this Case?

 Disruption of governmental function is included among 

the encouraged upward departure factors. See 1994 U.S.S.G. § 

5K2.7. "If the defendant's conduct resulted in a significant 

disruption of governmental function, the court may increase the 

sentence above the authorized guideline range to reflect the 

nature and extent of the disruption and the importance of the 

governmental function affected." Id. Although an encouraged 

factor, the disruption in this case was, at least in part, 

arguably taken into account when determining the applicable 

sentencing range. For example, as part of the calculation of his 

total offense level, Baird received a two-level increase because, 

as a police officer, he abused his position of trust. See id § 

3B1.3. He also received a four-level increase because, again as 

a police officer, he was a public official at the time of the 
33

offenses. See id. § 2H1.1(b)(1). In other words, Baird’s 

sentence reflected the fact that he was a rogue government 

official, one who affected government operations by acting 

outside of the law. Therefore, as stated in Koon, the sentencing 

court could have departed in this case only if the disruption was 

"present to an exceptional degree or in some other way [made] the 

case different from the ordinary case where the [disruption] is 

present." 

 We believe that it is clear that the sentencing court 

did not abuse its discretion by implicitly concluding that the 

disruption of governmental function caused by Baird's conduct is 

"present to an exceptional degree." The full impact of Baird's 

conduct is not yet known. However, based upon information 

supplied by the City of Philadelphia and by Baird himself, we 

know that the city has reopened innumerable criminal cases, 

originating from the 39th District, to determine whether it 

obtained convictions based on illegally obtained evidence. 

 The city has already set aside more than one hundred 

and fifty such convictions, leading to the release of innocent 

persons from prison. As a result of these wrongful convictions, 

many individuals have instituted civil lawsuits seeking damages 

from the city. The city stands to be liable for enormous sums of 

money. In other words, the disruption Baird caused is not only 

by no means ordinary, but also is, as far as we can tell, as 

colossal as it is unprecedented. The city must invest 
34

considerable time, vast energy, and enormous resources in making 

right the wrongs Baird has caused. Therefore, the departure in 

this case to reflect a disruption in government functions was 

appropriate. 

 Baird submits that the disruption occurred as a result 

of his truthful cooperation with the investigation into the 39th 

District and not as a result of his unlawful conduct. Therefore, 

the argument continues, he should not be subject to a departure 

because § 5K2.7 only allows departures "[i]f the defendant's 

conduct resulted in a significant disruption . . . ." Id. § 

5K2.7 (emphasis added). In a sense, Baird is correct. Without 

his cooperation, the full extent of the 39th District corruption 

might never have come to light. We are not unsympathetic, but 

there is a flaw in Baird's argument: his conduct in fact caused 

the disruption. But for Baird's illegal activities, the city 

would not have reopened criminal convictions originating in the 

39th District and innocent people would have no cause to sue the 

city. 

 In other words, if Baird had been an honest police 

officer, the city would not need to invest considerable time, 

energy, or resources in making anything right because nothing was 

wrong. At all events, we have made clear that the literal 

language of an encouraged departure factor is not controlling. 

See Kikumura, 918 F.2d at 1116 ("[F]itting a case within the 

literal language of a § 5K2 provision is neither a necessary nor 
35

a sufficient condition for making an offense-related 

departure."). That the disruption in this case might have been 

caused by Baird's cooperation as opposed to Baird's conduct is 

therefore of little consequence. We hold that a departure in 

this case for a significant disruption of government functions 

was not an abuse of discretion. 

 IV. WAS THE EXTENT OF DEPARTURE APPROPRIATE? 

 Having concluded that a departure in his case was 

appropriate, the final stage in our analysis is to determine 

whether the extent of the departure was reasonable. Our review 

of the sentencing court's decision in this regard is deferential. 

 See Kikumura, 918 F.2d at 1110; cf. Koon, 116 S. Ct. at 2046-48 

(holding that a decision whether to depart is reviewed for an 

abuse of discretion). However, there are "objective standards to 

guide the determination of reasonableness." Kikumura, 918 F.2d 

at 1110. Those objective standards can be found in the 

Guidelines themselves, which provide analogies to which 

sentencing courts must look when making their determinations. 

See id. at 1110-14. 

 In the present case, the district court failed to 

undertake the analogic reasoning that Kikumura often requires. 

However, as in Kikumura, our examination of the record leads us 

to conclude beyond any doubt that even if we were to remand the 

district court would impose as high a sentence as possible up to 

13 years. "If a reasonable analogy existed to support the 
36

sentence imposed, remand would be a pointless exercise. We 

therefore proceed to consider whether such analogy exists." Id.

at 1114 (footnote omitted). In so doing, we must bear in mind 

that "[w]e are dealing here with analogies to the guidelines, 

which are necessarily more open-textured than applications of the 

guidelines." Id. at 1113 (emphasis in original). 

 Our task, then, is to determine if a reasonable analogy 

exists in the Guidelines that would justify a four- or five-level 

upward departure based on the disruption of governmental 

functions. We note the existence of a guideline for the conflict 

of interest crimes. See 1994 U.S.S.G. § 2C1.3. Under § 2C1.3, 

the base offense level for the criminal, financial and nonfinancial conflict of interest by federal officials is 6. See

id. § 2C1.3(a). However, "[i]f the offense involved actual or 

planned harm to the government," the Guidelines require an 

enhancement of 4 levels. See id. § 2C1.3(b)(1). Section 2C1.3 

implies, then, that the Guidelines consider harm to the 

government worthy of a four-level increase. Since Baird’s 

conduct in this case is infinitely worse than a mere conflict of 

interest that results in harm to the government, a fortiori, the 

four-level departure in this case was reasonable.16

 

16. We recognized in Kikumura that “[t]here may be vehicles for 

making offense-related departures under Ch. 5, Pt. K of the 

guidelines (and for determining the reasonableness thereof) other 

than the kind of analogic reasoning outlined above.” Kikumura, 

918 F.2d at 1113. We noted further “that there may be cases 

where the guidelines will not afford useful analogies.” Id. 

Because we have in this case a useful analogy in the Guidelines, 

we need not endeavor to search for some other standard against 
37

 The judgment of the district court will be affirmed.17

 _______________________________ 

TO THE CLERK: 

 Please file the foregoing opinion. 

 BY THE COURT: 

 _________________________ 

 Circuit Judge 

(..continued) 

which we may measure the reasonableness of the departure. 

17. Because we affirm the judgment, Baird’s contention that the 

case should be reassigned to a different district court judge on 

remand is moot.