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. e du/thir dc ir c uit_1999/104Filed April 19, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-7270

UNITED STATES OF AMERICA

v.

MITCHELL FREDERICK PASTER, Appellant

On appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 96-cr-00221) District Judge: Honorable Malcolm Muir

Argued December 15, 1998

Before: SLOVITER and COWEN, Circuit Judges, and OBERDORFER, District Judge*

(Filed April 19, 1999)

Shalom D. Stone (Argued) Walder, Sondak & Brogan Roseland, NJ 07068 Attorney for Appellant

Wayne P. Samuelson (Argued) United States Attorney's Office Williamsport, PA 17703 Attorney for Appellee

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*Hon. Louis F. Oberdorfer, United States District C ourt for the District of Columbia, sitting by designation.OPINION OF THE COURT

OBERDORFER, District Judge.

We here review sentencing decisions rendered by the District Court below in a very troubling case of mu rder on a federal reservation. On August 28, 1996, a federa l grand jury returned an indictment charging Mitchell Frede rick Paster with premeditated murder of his wife, Dr. Ma rgaret Bostrom, by stabbing her repeatedly with a butcher knife. 18 U.S.C. SS 7(3), 1111. At arraignment, Paster ple d not guilty, and later noticed his intention to plead in sanity. Thereafter, the government indicated that it would not seek the death penalty authorized by 18 U.S.C. S 1111(b) . On the eve of trial, the government and Paster agreed that he would plead guilty to second degree murder. At the hearing preliminary to his acceptance of the plea, the Dist rict Judge elicited from the probation officer and the prosecu tor their best estimate that, as of that time, Paster would f ace imprisonment ranging from 168 to 210 months. After a two-day presentence hearing, the District Court ord ered

Paster confined for 365 months.

On this appeal, Paster challenges four aspects of t he sentencing decision: 1) denial of a downward depart ure on account of Dr. Bostrom's allegedly provocative cond uct; 2) denial of a downward departure on account of Paster 's arguably aberrant behavior; 3) denial of an additio nal onelevel downward adjustment for Paster's alleged acce ptance of responsibility; and 4) imposition of a nine-leve l upward departure for "extreme conduct." For the reasons st ated herein, we affirm the District Court with respect t o issues

one and two, reverse with respect to issue three, a nd remand for resentencing after the District Judge ha s an opportunity to reconsider his resolution of issue f our in light of our opinion. See Koon v. United States, 51 8 U.S. 81, 98 (1996).

2I.

The presentence investigation report ("PSR") and Pa ster's testimony at the presentence hearing disclosed, and the District Court found, that Paster and Margaret met in 1985 and married in 1994. At the time of the murder they lived in Lewisburg, Pennsylvania, where she worked as a psychologist at the United States Penitentiary. In the months immediately preceding the August 1996 stabbi ng, the couple experienced serious marital problems. On e night in July 1996, after Margaret went out with her supe rvisor and did not come home, Paster left Lewisburg for hi s parents' home in New Jersey. While there, Paster wa s served on July 25 with divorce papers filed by his wife on July 18.1 Thereafter the two reportedly reconciled by telephone. However, on August 12, 1996, after Marga ret revealed that she was having an affair with her sup ervisor, Paster returned to his parents' home.

After further efforts to reconcile, on the night of August 15 Paster returned home, only to find that his wife was not there. According to him, she drove by their home on two separate occasions that night. When she returned th e following morning, he confronted her about where sh e had been. She apparently became upset, and telephoned t he warden at the Lewisburg Penitentiary, to whom Paste r had revealed the ongoing affair. Margaret handed Paster the telephone receiver, and instructed him to retract h is prior

statement to the warden. Paster told the warden tha t he would not retract the statement, despite being pres sured. After hanging up the phone, Margaret mentioned that she had a friend on the reservation who kept weapons at his house, and that if Paster did not retract his state ment she

would entice the friend "to do whatever she wanted. " She then told Paster that she had had between forty and fifty affairs during their relationship, and planned to c ontinue to pursue the relationship with her supervisor. Thereu pon she went upstairs to take a shower, leaving Paster down stairs.

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1. Paster's response to the filing was due August 1 5, 1996. He claims that his wife told him that she planned to withdraw her request for a divorce, but her lawyer reported having no knowledg e of such plans.

3At one point, Paster went outside and conversed wit h a

neighbor, who reported later that Paster was "very calm, pleasant, and very soft-spoken." PSR at 9. Minutes later, however, he went back inside, retrieved a knife fro m the butcher block in the kitchen, proceeded upstairs, a nd then, as Margaret emerged from the shower, stabbed her wi th the knife numerous times. According to an autopsy repor t prepared by Dr. Samuel Land, a forensic pathologist , she died of multiple stab wounds to various vital organ s. Specifically, Dr. Land counted sixteen stab wounds -- nine of which were life-threatening and six of which wer e to the

heart -- and eleven slash wounds indicative of defe nsive action. Dr. Land also reported that one stab wound completely penetrated Margaret's sternum, and that one wound penetrated her body and the floor tile beneat h her. At the sentencing hearing, Dr. Land testified that Margaret's death "was a very violent" one, and that it "was one of the most severe cases I've seen." Appendix ( "App.") at

189.

After the murder, Paster telephoned his mother at h er place of employment. He then called 911 and reporte d that

he had stabbed his wife in the chest. He told the e mergency operator his name, his telephone number, and his ad dress, and described the location of the bloody knife. He remained on the phone until authorities arrived. First on th e scene were personnel from the Bureau of Prisons. He told them

that he had stabbed his wife and that she was in th e upstairs bathroom. The BOP personnel found her body in the bathroom; she was lying naked on the floor in a pool of

blood -- dead.

Later that afternoon, agents of the Federal Bureau of Investigation arrested Paster and took him to the L ewisburg Penitentiary Training Center for questioning. Atfir st, he said that he could not remember what happened upsta irs; later in the interview, however, he responded that he did not want to talk about the events that had transpir ed. According to a February 25, 1998 presentence invest igation report, he "remain[ed] unable to recall the actual murder, but acknowledged his involvement in the offense." P SR at 10. Meanwhile, he filed, and the District Court den ied, a motion to suppress statements that he made to

4investigators on the theory that the FBI agents ind uced his

statements by promising that he would be able to ca ll his

mother.

In response to Paster's notice of an insanity plea, Dr. Robert Sadoff, a psychiatrist, concluded after two examinations that Paster "did not deliberate or pre meditate this killing," and that "[t]he outward explosion of violence was atypical and foreign" for him. App. at 44. Dr. Sally Johnson, Chief Psychiatrist for the Mental Health D ivision at FCI Butner, concluded that "[t]here was no indic ation that [Paster] had formulated any plan to harm his w ife," and that his reported symptoms of memory loss were

consistent with dissociative amnesia. Id. at 60-61. Dr. Sadoff further concluded that, in his opinion, ther e was no insanity defense. Thereafter, on the eve of trial a nd pursuant to the plea agreement, Paster pled guilty to second degree murder, and the case entered its sent encing phase.

In calculating Paster's sentence, the District Judg e began from the base offense level of 33 for second degree murder. United States Sentencing Guidelines ("U.S.S.G.") S 2A1.2. He then granted a two-level reduction for acceptanc e of responsibility; denied enhancements for premeditati on and use of a weapon; imposed a nine-level upward depart ure for extreme conduct; denied a downward departure for aberrant behavior; denied a downward departure for victim's conduct; and denied an additional one-leve l reduction for acceptance of responsibility. The Dis trict Court calculated an offense level of 40. Having no prior criminal record, Paster was in criminal history cat egory I, and therefore subject to a guideline incarceration range of 292-365 months. The District Court imposed the maxi mum for the offense level: 365 months, or thirty years and five months. Paster appeals.

II.

Paster first argues that the District Court erred b y denying his motion for a downward departure pursuan t to S 5K2.10 of the guidelines. That section permits a downward departure "[i]f the victim's wrongful cond uct

5contributed significantly to provoking the offense behavior."

U.S.S.G. S 5K2.10. Paster argued to the District Co urt that his wife's revelation of past infidelity exposed wr ongful conduct and was the sole provocation for the fatal stabbing. The District Court rejected Paster's argument, reas oning that "[t]here is no confirmation of Paster's [sic] statements as to any prior affairs," and that "[t]hose allegat ions even if true do not indicate that the victim substantially provoked her murder." United States v. Paster, 17 F. Supp.2d 345, 351 (M.D. Pa. 1998). Thus, the District Court wrote : "Even though we have the authority to depart for victim

misconduct the conduct of the victim in this case d oes not warrant a departure." Id. We review for clear error . United States v. McQuilkin, 97 F.3d 723, 730 (3d Cir. 1996 ).

By its terms, S 5K2.10 hinges a departure on two cr iteria: 1) the victim must have committed "wrongful conduct ;" 2) and such conduct must have "contributed significant ly to provoking the offense behavior." The policy stateme nt

instructs that

[i]n deciding the extent of a sentence reduc tion, the court should consider: a) the size and stren gth of the victim, or other relevant physical character istics, in comparison with those of the defendant; b) t he persistence of the victim's conduct and any efforts by the defendant to prevent confrontation; c) t he danger reasonably perceived by the defendant, inclu ding the victim's reputation for violence; d) the dan ger actually presented to the defendant by the victim; an d e) any other relevant conduct by the victim that su bstantially contributed to the danger presented.

U.S.S.G. S 5K2.10. By delineating these five factor s, the guidelines contemplates departures where the victim 's conduct posed actual, or reasonably perceived, dang er to the defendant, with emphasis on physical danger. Co urt decisions confirm what the context of guideline S 5 K2.10 implies: Generally only violent conduct, albeit wro ngful, justifies a downward departure. See Blankenship v. United States, 159 F.3d 336, 339 (8th Cir. 1998), cert. de nied, 1999 WL 8730 (Jan. 11, 1999) (affirming denial of departure because while conduct was "wrongful," it was not violent); see also United States v. Bigelow, 914 F. 2d 966,

6975 (7th Cir. 1990) (physical blocking of doorway w as not

"sufficient physical contact to provoke the attack" ) (emphasis added). Cf. United States v. Shortt, 919 F.2d 1325, 1328 (8th Cir. 1990) (embracing idea that "th ere's hardly any greater provocation than to have someone having an affair with your spouse").

The District Court denied a S 5K2.10 departure beca use there was no danger or reasonable perception of dan ger to Paster. Paster, 17 F. Supp.2d at 351. There is ampl e record evidence to support the denial. First, Margaret's s ize and strength posed no threat to Paster. Second, Paster himself initiated the fatal confrontation. Third, the recor d contains no suggestion that Margaret had a reputation for vi olence; it was the District Court's prerogative to discount danger to Paster from his wife's friend. In any event, all of the circumstances -- Paster armed with a knife, attacki ng his wife as she emerged from a shower -- demolish his v ictim provocation claim.2

The foregoing considered, it was not necessary to d ecide whether revelation of past infidelities, or the inf idelities themselves, could ever constitute such "wrongful co nduct" as to mitigate a sentence for murder. However, even if Margaret's conduct, as revealed moments before the attack, were wrongful within the meaning of S 5K2.10, Paste r's response was grossly disproportionate to any provoc ation.3 Shortt, 919 F.2d at 1328 ("A concern for the propor tionality of the defendant's response is manifested by the te rms of S 5K2.10."). See also Blankenship, 159 F.3d at 339; United States v. Morin, 80 F.3d 124, 128 (4th Cir. 1996) ( concern

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2. This analysis easily distinguishes this case fro m United States v. Yellow Earrings, 891 F.2d 650 (8th Cir. 1989), wher e the court of appeals upheld a downward departure upon considerat ion of

uncontroverted evidence that the female defendant h ad refused the victim's request to engage in sexual intercourse; t hat the victim was considerably larger than the defendant; that the vi ctim was intoxicated and had a history of unpredictable conduct while in toxicated; and that the defendant reasonably perceived a threat of dang er. Id. at 651-54.

3. The District Court found that on earlier occasio ns Paster had learned of his wife's infidelity, but that instead of react ing as if he were physically endangered, he simply "left the marital residence to live with parents." Paster, 17 F. Supp.2d at 349.

7for proportionality "is evidenced by the factors th at

S 5K2.10 instructs the court to consider"). Cf. Uni ted States v. Dailey, 24 F.3d 1323, 1328 (11th Cir. 1994) (aff irming departure for defendant who did not physically harm the victim); United States v. Tsosie, 14 F.3d 1438, 144 2 (10th Cir. 1994) (affirming departure for defendant who w as engaged in physical altercation with the victim). Accordingly, we affirm denial of a downward departu re pursuant to S 5K2.10.

III.

Paster next challenges the District Court's refusal to grant a downward departure for "aberrant behavior." See U.S.S.G. Ch. 1, Pt. A, intro. comment P 4(d). This court addressed that ground for departure in United State s v. Marcello, 13 F.3d 752 (3d Cir. 1994), decided befor e the Supreme Court's landmark decision in Koon v. United States, 518 U.S. 81 (1996). Embracing the formula t hat originated from the Fourth, Fifth, and Seventh Circ uits, the Marcello court wrote that "[a]berrant behavior must involve a lack of planning; it must be a single act that is spontaneous and thoughtless, and no consideration i s given to whether the defendant is a first-time offe nder." Id. at 761 (emphasis added). Marcello's construction fo llowed the Seventh Circuit's opinion in United States v. C arey, 895 F.2d 318, 325 (7th Cir. 1990):

A single act of aberrant behavior . . . gen erally contemplates a spontaneous and seemingly thoughtless act rather than one which was th e result of substantial planning because an act which occurs suddenly and is not the result of a continue d reflective process is one for which the defendant may b e arguably less accountable.

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

Invoking Marcello, the District Court found "indica tions that the murder was spontaneous" and that there was "insufficient evidence to show that Paster had plan ned the killing of his wife." Paster, 17 F. Supp.2d at 351. However,

the District Court held that "the murder was not co mmitted in a thoughtless manner," because, the court found, "Paster

8had ample time in the minutes preceding the stabbin g to

think about whether to murder his wife," and "the n umber

of times Paster stabbed his wife indicates that he thought about the act as it was being done." Id. The Distri ct Court concluded that "[t]here is no authority to depart o n the

basis of aberrant behavior under Marcello." Id.

Paster challenges the District Court's construction of the term "thoughtless" as used by the Marcello court. A ccording to Paster, the District Court interpreted the term to mean "without conscious thought" or "without intent," as distinguished from "without prior thought," "not we ll thought-out," or "without premeditation." Appellant 's Brief at 34-35. He argues that this construction of "thou ghtless" would render meaningless the concept of "aberrant

behavior" because most crimes entail a mens rea tha t would preclude a finding of "thoughtlessness." Beca use Paster argues that the District Court misinterprete d the legal standard enunciated in Marcello, we exercise plenary review. United States v. Sokolow, 91 F.3d 396, 411 (3d Cir. 1996). See also United States v. Marin-Castaneda, 1 34 F.3d 551, 554 (3d Cir. 1998), cert. denied, ___ U.S. ___ , 118 S. Ct. 1855, 140 L. Ed. 2d. 1103 (1998); United States v. Grandmaison, 77 F.3d 555, 561 (1st Cir. 1996) (undertaking plenary review because district court "adopted the wrong standard").

We decline to upset the District Court's decision r ejecting departure. The District Court applied the correct l egal standard by properly focusing on the term "thoughtl ess," because Marcello made thoughtlessness a necessary ingredient of aberrant behavior. 13 F.3d at 761. 4

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4. The government argues that because Paster pled g uilty to a crime defined as one committed "willfully, deliberately, maliciously" and with "malice aforethought," he necessarily is not eligib le for a departure

based on "thoughtless" activity. The government argues al ternatively that Paster does not qualify for a departure because inf liction of sixteen stab

wounds and eleven slash wounds does not constitute "a single act" within the meaning of Marcello. We need not reach t he former argument because we are satisfied that the District Court ap plied the proper standard pursuant to Marcello, and we need not reac h the latter argument because the District Court's finding that Paster's conduct was not "thoughtless" makes the single act issue redund ant.

9Specifically, the District Court found that Paster "had

ample time in the minutes preceding the stabbing to think about whether to murder his wife," and that "the nu mber of

times Paster stabbed his wife indicates that he tho ught about the act as it was being done." Paster, 17 F. Supp.2d at 351 (emphasis added). These penultimate findings amply support the ultimate finding that the murder was no t "thoughtless." Nor does the failure of the District Court to make an additional ultimate finding about a "contin ued reflective process" constitute reversible error in the context of this case. Marcello, 13 F.3d at 761 (quoting Car ey, 895 F.2d at 325). The District Court's finding about th e "ample time in the minutes preceding the stabbing" and the multiple stabbings convey the Marcello concept of a continuum, as distinguished from a mere "opportunit y to consider [the] crime." Diss. Opp. at 28 (emphasis i n original). Also, the term "reflective" used in Marc ello clearly imports the concept of "thoughtful," the antonym of "thoughtless." See Webster's Third New Internationa l Dictionary 2381 (1971).5

In view of the foregoing, the District Court's find ing that Paster's conduct was not "thoughtless" was not clea rly erroneous, and its application of the Marcello sta ndard supported the conclusion that on these facts Paster was not entitled to an aberrant conduct departure. Cf. Marc ello, 13 F.3d at 761 (district court's decision "not to depa rt, after applying the correct legal standard, is discretiona ry and unreviewable"). Cases from other circuits that affi rmed denial of an aberrant behavior departure, and that pre-date the Supreme Court's opinion in Koon, 518 U.S. 81, s ee, e.g., United States v. Garlich, 951 F.2d 161 (8th C ir. 1991), United States v. Glick, 946 F.2d 335 (4th Cir. 1991 ), do not hold otherwise. Thus, the District Court's statemen t that it had "no authority to depart on the basis of aberran t

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5. The Marcello barrier to consideration in an aber rant behavior context of whether subsequent violence is "out of character " or a "first offense," Marcello, 13 F.3d at 761 (quoting Carey, 895 F.2d a t 325), precludes consideration here of the apparent fact that Paster had no history of domestic, or any other kind, of violence, and that indeed he had reacted passively when his wife and her paramour separately flaunted their affair before him. Cf. Diss. Op. at 30.

10behavior under Marcello," Paster, 17 F. Supp.2d at 351,

may fairly be construed as nothing more than a conc lusion that the facts of this case applied to the principl es announced in Marcello do not qualify Paster for an aberrant behavior departure. Accordingly, we affirm denial o f a departure for aberrant behavior.

We would reach the same result were we to test our analysis by direct reference to Koon. Koon establis hed that a sentencing court considering a departure mustfirs t ask, "What features of this case, potentially, take it o utside the Guidelines' `heartland' and make of it a special, o r unusual, case?" 518 U.S. at 95 (citation omitted). Once a co urt identifies a "special" feature, it is directed to a ssess whether the Guidelines forbid, encourage, discourage, or fa il to mention a departure based on that feature. Id. at 9 5-96. The answer to this second inquiry shapes the remain ing analysis:

If the special factor is a forbidden factor , the sentencing court cannot use it as a basis fo r departure. If the special factor is an encouraged facto r, the court is authorized to depart if the applicable Gu ideline does not already take it into account. If the spe cial factor is a discouraged factor, or an encouraged facto r already taken into account by the applicable Guideli ne, the court should depart only if the factor is pr esent to an exceptional degree or in some other way make s the case different from the ordinary case where the factor is present. If a factor is unmentioned in th e Guidelines, the court must, after considering the struct ure and theory of both relevant individual guideline s and the Guidelines taken as a whole, decide whether it is

sufficient to take the case out of the Guide line's

heartland. The court must bear in mind the Commission's expectation that departures bas ed on grounds not mentioned in the Guidelines will be highly infrequent.

Id. (citations and internal quotation marks omitted ) (emphasis added).

Aberrant behavior is an "unmentioned factor." See U nited States v. Kalb, 105 F.3d 426, 429 (8th Cir. 1997). So here,

11the District Court relied entirely upon the Marcell o

definition of the term. Having determined that Past er's behavior was not aberrant within the meaning of Mar cello, the District Court had no occasion to attempt to ex trapolate from "the structure and theory of both relevant ind ividual guidelines and the Guidelines taken as a whole" whe ther

Paster's behavior was "sufficient to take the case out of the [second degree murder guideline's (S 2A1.2)] heartl and." Koon, 518 U.S. at 96. The District Court's analysis

therefore was consistent with both Marcello and wit h the Koon Court's caution that departures relying on unmentioned factors should be "highly infrequent." Id. Accordingly, we affirm denial of a departure for ab errant

behavior.

IV.

Paster next argues that, even though the District C ourt granted him a two-level adjustment for acceptance o f responsibility, it erred by denying his motion for an additional one-level adjustment pursuant to S 3E1.1 of the guidelines. That section provides that a defendant is

entitled to an additional one-level decrease if he qualifies for a two-level decrease for acceptance of responsi bility, his offense level is sixteen or greater, and he

has assisted authorities in the investigati on or prosecution of his own misconduct by taking one or more of the following steps: (1) timely prov iding complete information to the government conce rning his own involvement in the offense; or (2) timel y notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid p reparing for trial and permitting the court to alloca te its resources efficiently.

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

that Paster met the first two criteria of S 3E1.1: The District Court awarded him a two-level reduction for accepta nce of responsibility and his offense level was greater th an sixteen. The District Court concluded, however, tha t Paster did not qualify for the additional one-level reduct ion because his decision to plead guilty after the jury was

12selected did not constitute timely notification wit hin the

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

Paster appeals this determination. First, he argues that although the District Court considered whether he t imely notified the government of his intent to plead guil ty, it failed to consider whether he timely provided compl ete information concerning his involvement in the crime . Paster argues further that his statements to the Bureau of Prisons personnel who responded to his call to 911 support a finding that he timely provided complete informatio n concerning his involvement in the crime -- and ther efore

should have received the additional one-level reduc tion.

Because Paster contends that the District Court com mitted legal error, we review de novo. United States v. Ma urello, 76 F.3d 1304, 1308 (3d Cir. 1996).

We are persuaded that Paster has the better of this argument. The third prong of S 3E1.1(b) is in the disjunctive. United States v. Lancaster, 112 F.3d 1 56, 158 (4th Cir. 1997); United States v. Williams, 86 F.3d 1203, 1206 (D.C. Cir. 1996); United States v. Eyler, 67 F .3d 1386, 1391 (9th Cir. 1995). By its plain terms, it is sat isfied if the defendant "has assisted authorities in the investig ation or prosecution of his own misconduct by taking one or more of the following steps: (1) timely providing complete information to the government concerning his own involvement in the offense; or (2) timely notifying authorities of his intention to enter a plea of gui lty . . . ." U.S.S.G. S 3E1.1(b) (emphasis added). The District Court considered only whether Paster satisfied the latter criterion, not whether he satisfied the former. Paster, 17 F. Supp.2d at 353. Accordingly, the District Court erred as a matter of law by failing to apply S 3E1.1(b)'s disjunctive st andard. Maurello, 76 F.3d at 1308.

The government argues that even if the District Cou rt erred, Paster still is not entitled to the addition al one-level reduction because "throughout the investigation .. . and continuing through his interview with the Probation Officer . . ., [he] continually attempted to minimize his r ole in the offense." Appellee's Brief at 27-28 (emphasis in or iginal). For example, the government alludes to evidence tha t Paster initially told investigators that he did "no t

13remember" much of what happened -- belied, the

government says, by his admissions to the emergency operator -- and that he "did not want to talk about it." Id. at 28. The government also cites psychiatric report s and the presentence investigation report, which purport edly document that Paster attempted to ascribe blame for the killing to his wife's revelation of infidelity.

The government's argument cannot cure the District Court's failure to focus on and make findings with respect to S 3E1.1(b)(1). See U.S.S.G. S 3E1.1 app. note 5. See also United States v. Marroquin, 136 F.3d 220, 223 (1st Cir. 1998); United States v. Ortiz, 63 F.3d 952, 955-56 (10th Cir. 1995). On the other hand, the record contains evidence that supports an additional one-level reduction. Fo r example, the District Court found that Paster calle d 911, reported that he had stabbed his wife, provided dir ections to his home and the location of the weapon, remaine d on the phone until authorities arrived, and cooperated with authorities while the crime scene was investigated. Paster, 17 F. Supp.2d at 347-49. The District Court also co ncluded

that "Paster has never denied that he stabbed and k illed his

wife." Id.6 While the District Court found that Pas ter "was unable to remember many of the details of the murde r" when questioned by FBI agents, id. at 348, the government's psychiatrist concluded that Paster suf fered from dissociative amnesia, App. at 60, an opinion t hat supports a finding of genuine memory loss rather th an obdurate or unhelpful conduct. Finally, that the government may have been able to learn of Paster's offense independent of his assistance does not preclude an additional one-level reduction, United States v. St oops, 25 F.3d 820, 822-23 (9th Cir. 1994); neither does the fact that Paster filed a motion to suppress. Id. The District Court's findings establish that no reasonable trier of fact could

conclude that Paster was not entitled to an additio nal onelevel reduction. See, e.g., United States v. Eyler, 67 F.3d 1386, 1392 (9th Cir. 1995). Accordingly, we reverse and

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6. This finding serves to distinguish this case fro m United States v. Chee, 110 F.3d 1489 (9th Cir. 1997), where the court affi rmed denial of the additional one-point reduction because the defendan t consistently denied certain alleged conduct. Id. at 1494.

14remand for Paster to be resentenced to reflect an a dditional

one-level reduction in his offense level.

V.

Paster's final, and most extensive, challenge is a multipronged one to the nine-level upward departure purs uant to Sentencing Guidelines S 5K2.8, "Extreme Conduct. " That section authorizes an upward departure "[i]f the de fendant's conduct was unusually heinous, cruel, brutal, or de grading to the victim." U.S.S.G. S 5K2.8. The guideline exp lains that "[e]xamples of extreme conduct include torture of a victim, gratuitous infliction of injury, or prolonging of p ain or humiliation." Id. Here, after summarizing the evide nce, the District Court concluded that some "upward departur e based upon Paster's unusually heinous, cruel, and b rutal conduct is warranted." Paster, 17 F. Supp.2d at 349 -50. It then imposed a nine-level upward departure. Id. at 350. The departure increased the adjusted guideline rang e from 108-135 months to 292-365 months. The top-of-the-ra nge 365-month sentence actually imposed is 213.5 months greater than the median of the range for base secon d degree murder (135-168 months), to which Paster ple d guilty. As contemplated by then-Judge Becker's semi nal opinion in United States v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), we appraise the level of proof required by the district court, the propriety of any departure, and the

reasonableness of its term. Id. at 1098.

A.

Paster first argues that the District Court erred b y not articulating and applying a clear and convincing bu rden of proof to support the nine-level upward departure. I n support of this claim, Paster cites Kikumura, 918 F .2d 1084, which established that when a departure "is sufficiently great that the sentencing hearing can be fairly characterized as `a tail which wags the dog of the substantive offense,' . . . the factfinding underly ing that departure must be established at least by clear and convincing evidence." Id. at 1101 (quoting McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986)). See also Uni ted

15States v. Murray, 144 F.3d 270, 275 (3d Cir. 1998), cert.

denied, ___ U.S. ___, 119 S. Ct. 254, 142 L. Ed. 2d 209 (1998). The government concedes that the magnitude of the departure here imposed, compared to a base second d egree murder sentence, requires clear and convincing evid ence, and that the District Court did not expressly recit e the clear and convincing formula; it argues, nonetheless, tha t the evidence met the requisite legal standard. We agree : Incantation of the term "clear and convincing" was not necessary on this record. Kikumura, 918 F.2d at 110 4.

Paster contends that the District Court not only fa iled to recite the proper standard; it failed to prove by c lear and convincing evidence that his conduct was unusually heinous, cruel, brutal, or degrading to the victim. This argument is unconvincing. Paster never repudiated h is prior admissions that he killed his wife. Nor did h e dispute the extensive and gory evidence concerning the kill ing, including the expert pathologist's extensive and uncontradicted testimony about the sixteen stab wou nds, the eight to nine penetrations of the heart area, a nd the

eleven incisive wounds that Paster inflicted on his wife. Paster, 17 F. Supp.2d at 348-49. See App. at 189 (" This was one of the most severe cases I've seen."). This unchallenged evidence was clear and convincing proo f of "extreme conduct." Kikumura, 918 F.2d at 1101.7

B.

Paster next argues that the District Court erred by enhancing his sentence for extreme conduct because the Sentencing Commission regarded second degree murder

, per se, as unusually heinous, cruel, and brutal and established guidelines that adequately punish perpe trators on that assumption. According to Paster, the unusua lly heinous, cruel, and brutal character of his conduct was reflected in S 2A1.2, the guideline for second degr ee

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7. Citing Beardshall v. Minuteman Press Internation al, Inc., 664 F.2d 23, 26-27 (3d Cir. 1981), Paster argues that the Distri ct Court committed plain error by not reciting the clear and convincin g formula. In Beardshall, the district judge failed to instruct t he jury on the applicable burden of proof, quite a different matter.

16murder, and in the offense level there established. His

argument finds tangential support in this court's observation in Kikumura, 918 F.2d at 1118, that the attempted murder guideline "plainly accounts for th e fact that attempted murder, by its very nature, involves heinous conduct." Id. The government counters that the Dist rict Court's specific factual findings support a determi nation that by any definition Paster's conduct was unusual ly heinous, cruel, and brutal. Again, we find ample su pport for the government's position.

By now it is familiar that when a factor is an "encouraged" basis for departure, the task of the s entencing

court is to determine whether that factor is taken into account by the relevant guideline. Koon v. United S tates, 518 U.S. 81, 96 (1996). Unusually heinous, cruel, b rutal, or degrading conduct is an encouraged factor under S 5 K2.8, so the court below was obligated to assess whether unusually heinous, cruel, brutal, or degrading cond uct is within the heartland of conduct encompassed by S 2A 1.2. Id. at 93-96. Ordinarily, a determination of "[w]he ther a given factor is present to a degree not adequately considered by the Commission" will be made "in larg e part by comparison with the facts of other Guidelines ca ses." Id. at 98. Because of the "institutional advantage" of district courts in making such factual determinations, appel late courts accord considerable deference to their depar ture decisions, limiting review on appeal to abuse of di scretion.

Id. at 98-100.

We are satisfied that the District Court exercised appropriate discretion in determining that Paster's conduct was sufficiently more heinous than conduct that constitutes the so-called "heartland" of second deg ree murders. Id. at 93-94. The judge specifically noted , for example, that Paster stabbed Margaret sixteen times with a butcher knife, that eight or nine of the wounds pen etrated the heart area, that ten of the wounds were immedia tely life-threatening, and that Paster also inflicted el even incisive wounds. Paster, 17 F. Supp.2d at 349. The judge also observed photographs of the victim that "graph ically

demonstrate the heinous and extreme nature of Paste r's crime." Id. While the judge did not compare Paster' s case

17with other second degree murders, the gripping deta iled

testimony effectively demonstrates that Paster's cr ime was unusually violent and brutal. We are satisfied that the

District Court did not abuse its discretion in deci ding to depart for extreme conduct. See United States v. Mu rray, 144 F.3d 270, 275 n.7 (3d Cir. 1998), cert. denied, ___ U.S. ___, 119 S. Ct. 254, 142 L. Ed. 2d 209 (1998).

C.

In approving an extreme conduct departure, we do no t overlook Paster's argument that the departure was l iterally inappropriate because his conduct matched none of t he specific examples delineated by S 5K2.8:"torture of a victim, gratuitous infliction of injury, or prolong ing of pain or humiliation." U.S.S.G. S 5K2.8. Paster argues th at this list of examples is exhaustive, citing United State s v. Kelly, 1 F.3d 1137 (10th Cir. 1993). However, the Kelly co urt ruled only that by articulating specific examples o f unusually heinous, cruel, brutal, or degrading cond uct, S 5K2.8 provides "objective standards for its appli cation." Id. at 1143. This is a far cry from a ruling that t he three examples listed in the guideline constitute the uni verse of conduct condemned by that section. Indeed, the guid eline itself identifies these three examples as just that : nonexclusive examples. ("Examples of extreme conduct i nclude . . . ." U.S.S.G. S 5K2.8 (emphasis added)). Paster 's conduct was extreme even if it was not specifically branded with one of the three illustrative labels provided in S 5K2. 8.

As a second prong of his challenge to the extreme conduct finding, Paster argues that his crime was n o more heinous, cruel, or brutal than that recorded in six other cases. As an example, Paster again cites Kelly, 1 F .3d 1137,

where the defendant choked the victim to unconsciou sness, beat the victim with a tire iron, struck the victim in the neck with a jack handle, and dumped the victim's bo dy in a pond. Id. at 1138. See also United States v. Herr era, 70 F.3d 444, 445 (7th Cir. 1995); United States v. And erson, 5 F.3d 795, 796-97 (5th Cir. 1993); United States v. Luscier, 983 F.2d 1507, 1509 (9th Cir. 1993); United States v. Phillip, 948 F.2d 241, 244 (6th Cir. 1991); United States v. Roberson, 872 F.2d 597, 600 (5th Cir. 1989). While one

18cannot gainsay the brutality of the conduct perpetr ated in

these cases, it hardly follows that Paster's conduc t was less deserving of being branded "extreme."

Even if true, however, the fact that other cases in volved conduct arguably more heinous, cruel, and brutal th an Paster's by no means proves that the District Court abused its discretion by concluding that Paster's conduct was outside the heartland of second degree murder cases

. Murray, 144 F.3d at 275 n.7. In fact, the judge mad e explicit findings about the heinous, cruel, and bru tal nature of Paster's offense -- particularly supporte d by the pathologist's testimony that it was one of the most severely violent deaths he had ever documented, 17 F. Supp.2 d at 349 -- thereby demonstrating an awareness of the re levant standard and a commitment to undertake a departure only when warranted. All of the foregoing considered, we affirm

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

for extreme conduct.

D.

Having concluded that the District Court did not ab use his discretion by awarding a departure for extreme conduct, we turn to Paster's final argument: that the nine-l evel upward departure, which increased by more than seve nteen years the applicable median sentence, was unreasona ble. The Sentencing Commission established a 243-month spread between the median sentence for first degree murder adjusted by a two-level reduction for accept ance of responsibility (364.5) and the median sentence for second degree murder adjusted for the same two-point reduc tion (121.5).8 Yet the sentence levied in this second de gree murder case is equal to what would be a heavy first degree murder sentence. This aspect of the sentence here i mposed gives us pause.

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

life imprisonment; adjusted two levels for acceptance of responsibility, the crime yields an incarceration range of 324-405 mont hs. Second degree murder, which has a base offense level 33, produces an incarceration range of 135-168 months; the range drops to 108-135 months when the offense level is adjusted two levels for acceptance of responsibility.

19"Our review of the sentencing court's decision in t his

regard is deferential," United States v. Baird, 109 F.3d 856, 872 (3d Cir. 1997), cert. denied, ___ U.S. ___, 118 S. Ct. 243, 139 L. Ed. 2d 173 (1997), but this court relie s upon "objective standards to guide the determination of reasonableness" -- including analogies within the guidelines themselves, Kikumura, 918 F.2d at 1110-1 3, and the guidance afforded by the statutory scheme that they implement. In this case, the District Court conclud ed, and both parties acknowledge, that "there are no provis ions in the guidelines which suggest an analogy from which to determine the appropriate level of upward departure ." Paster, 17 F. Supp.2d at 350. Nor does our independ ent search for such analogies yield a plausible one.9

Paster proposes as an alternative approach an incre ase of the offense level by analogy to the defendant's cri minal history category. See, e.g., United States v. Ferra , 900 F.2d 1057, 1061-64 (7th Cir. 1990). He notes that even a t Category VI -- the maximum -- his pre-departure off ense level of 31 would yield an incarceration range of 1 88-235 months, some 104-130 months fewer than he actually

received.

We find the criminal history analogy inappropriate here. As the Kikumura court observed, guidelineS 4A1.3 pe rmits a departure "[i]f reliable information indicates th at the criminal history category does not adequately refle ct the seriousness of the defendant's past criminal conduc t or the

likelihood that the defendant will commit other cri mes . . . ." 918 F.2d at 1112. In this case, the govern ment did not argue, and the District Court did not find, tha t Paster's criminal history category misrepresented the seriou sness of his past criminal conduct (there was no record of a ny), or the likelihood that he would engage again in the ar guably

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

the base offense levels for assault with intent to commit murder and aggravated assault, respectively. Each offense is s ubject to specific upward adjustments for particular offense character istics, such as five levels for aggravated assault if a firearm is used. Neither these specific offenses, nor the scheduled adjustments, provide a useful analogy to the extreme conduct departure which is to be measured h ere.

20aberrant conduct at issue here. Our appraisal of th e record

confirms these conclusions.

Finding no acceptable analogy in the guidelines, th e District Court surveyed what it considered to be an alogous case law. The District Judge collected two cases th at approved five-level upward departures, see Herrera, 70 F.3d 444, Kikumura, 918 F.2d at 1113, one decision that affirmed a ten-level upward departure, United State s v. Pergola, 930 F.2d 216 (2d Cir. 1991), and one that upheld an eleven-level upward departure, Roberson, 872 F.2 d 597. From these raw numbers ranging from five to eleven the District Court extrapolated nine. Paster argues tha t the four cases cited by the District Court are inapposi te because they involved more severe offenses, and bec ause the upward departures were based only in part on th e respective defendants' "extreme conduct." The gover nment defends the District Court's approach, and at oral argument directed us to United States v. Morrison, 153 F.3d 34 (2d Cir. 1998), where the court upheld a fourtee n-level upward departure.

Guidelines construct a bare framework for sentencin g decisions, and the interstices permit courts to use a common law approach to fashion particular sentences

. However, notwithstanding the substantial deference owed the District Court, we have two problems with the c ase law methodology used here. First, the District Court ci ted the several cases without critical analysis of the part icular extreme conduct and other grounds for departure in those cases compared with the nine-level departure here s olely for extreme conduct; the District Court simply conclude d"that a nine level upward departure for Paster's extremel y brutal conduct is warranted." Paster, 17 F. Supp.2d at 350

.

We question whether on closer analysis extrapolatio n from the sentences imposed in the four cases refere nced by the District Court -- and the fifth cited by the go vernment at oral argument -- would support a nine-level extr eme conduct departure here. For example, in Roberson, 8 72 F.2d 597, the court affirmed an eleven-level depart ure, but recognized that the district court based the upward departure on three discrete grounds, only one of wh ich was extreme conduct pursuant to S 5K2.8. Id. at 602. Se e also

21Morrison, 153 F.3d at 51 (affirming fourteen-level departure

that was an accumulation of separate two- and three -level enhancements linked to consequences suffered by ten different victims). The Pergola court approved a te n-level departure based, not upon "extreme conduct" (S 5K2. 8), but upon "extreme psychological injury" (S 5K2.3). Perg ola, 930 F.2d at 218. Finally, both Kikumura and Herrera inv olved upward departures that were only five levels, and authorized by more than one guideline. Kikumura, 91 8 F.2d at 1119; Herrera, 70 F.3d at 447. We are not satisf ied that these cases adequately justify the nine-level upwar d departure at issue here.

There remains the question raised by the convergenc e of the sentence imposed here with the guidelines' pres cription for first degree murder. To recapitulate, Paster wa s indicted for first degree murder, the elements of which are "the unlawful killing of a human being with malice aforethought." 18 U.S.C. S 1111(a). After the Distr ict Court denied Paster's suppression motion, Paster agreed t o, and the court accepted, a plea of guilty to second degr ee murder. The guilty plea spared Paster, his family, the family of his late wife, the government, and the co urt from the anguish which trial of this ugly case would hav e entailed; it also reduced the severity of the appli cable sentence range to which Paster was exposed. See 18 U.S.C. S 1111(b). See also U.S.S.G. SS 2A1.1, 2A1.2. In th e colloquy about the plea agreement, the probation of ficer and the government advised that the likely sentenci ng range would be 168-210 months, a range consistent w ith base second degree murder and a two-level enhanceme nt. Tr. of hearing of 11/19/97, at 13-14.

The statutory maximum for both first and second deg ree murder is life imprisonment, except that in special circumstances the death penalty may be imposed upon a person convicted of first degree murder. 18 U.S.C. S 1111(b). However, the guideline range for a defen dant guilty of first degree murder with a criminal histo ry of I who, after a two-point reduction for acceptance of responsibility has an offense level of 41, is 324-4 05 months imprisonment. The guideline range for a defendant g uilty of second degree murder with a criminal history of I a nd a

22two-point reduction for acceptance of responsibilit y is 108-

135 months imprisonment.

A prime objective of the Sentencing Guidelines was to eliminate or, at least reduce, disparity in the sen tencing of similarly situated defendants. See U.S.S.G. Ch. 1, Pt. A, 3. As the Sentencing Commission has stated, "Congress sought reasonable uniformity in sentencing by narro wing the wide disparity in sentences imposed for similar criminal offenses committed by similar offenders." Id. As a corollary of this guideline policy, however, the Commission recognized that defendants differently situated sho uld suffer different sentences because "Congress sought proportionality in sentencing through a system that imposes appropriately different sentences for crimi nal conduct of differing severity." Id. See also United States v. Katora, 981 F.2d 1398, 1411 n.12 (3d Cir. 1992) (Be cker, J., concurring in part and dissenting in part) ("Th e notion of disparity comprehends not only treating similarl y situated defendants differently, but also treating defendants who are dissimilarly situated in some relevant way the same."). "Often the best way to test whether a part icular degree of departure is appropriate is to use other provisions of the Guidelines as benchmarks." Herrera, 70 F.3d at 446.

The vice of the nine-level upward departure imposed on Paster is that he has incurred for second degree mu rder a sentence that would be appropriate for first degree murder adjusted two levels for acceptance of responsibilit y. Thus, if the government had required Paster to plead guilty to first degree murder in order to escape the death penalty, 10 and he enjoyed a two-level reduction for acceptance of responsibility (as he did here), he would have face d a sentence in the range of 324-405 months,11 the med ian of

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10. While the record reflects only that the governm ent ultimately decided not to seek the death penalty, see App. at 119-20, 319, it had statutory authority to do so. 18 U.S.C. S 1111(b).

11. First degree murder carries a base offense leve l of 43; assuming a two-level reduction for acceptance of responsibilit y, an offense level of

41 yields a sentence of 324-405 months for a defendant in criminal history category I. The applicable range would drop to 292- 365 months if a three-point reduction for acceptance of responsibil ity were awarded. See

supra IV.

23which is the actual sentence that Paster received. 12 This

lack of disparity between Paster's actual sentence and one he could have received had he pleaded guilty to, or been convicted of, a more serious crime distorts proport ionality, a critical objective of the Sentencing Guidelines. See U.S.S.G. Ch. 1, Pt. A, 3.

VI.

Accordingly, we will affirm the District Cou rt's denial of departures for aberrant behavior and victim provoca tion. However, we will remand for resentencing to reflect an additional one-level reduction for acceptance of responsibility. We also will remand with directions to the District Court to reconsider the nine-level upward departure for extreme conduct after closer examinat ion of

the relevant court decisions and for consideration of the proportionality concerns raised by the coincidence of the second degree murder sentence and the prescribed sentence for first degree murder.

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12. Had Paster pursued an insanity defense, as he o riginally intended, been convicted of first degree murder, and received a two-point reduction for acceptance of responsibility, he likewise would have been exposed to an incarceration range of 324-405 months. See U.S.S .G. S 3E1.1, comment 2 ("Conviction by trial . . . does not auto matically preclude a defendant from consideration for [an acceptance of responsibility] reduction."). See also United States v. Fells, 78 F .3d 168, 172 (5th Cir. 1996); United States v. Barris, 46 F.3d 33, 35 (8th Cir. 1995) ("[D]efendant who goes to trial on an insanity defe nse, thus advancing an issue that does not relate to his factual guilt, ma y nevertheless qualify for an acceptance-of-responsibility reduction").

24SLOVITER, Circuit Judge, concurring.

I join in Parts I through IV of the opinion. I also concur in Part V, but note that I would ordinarily agree w ith the government with respect to the nine-level upward departure. The District Court's decision to depart is entitled to great deference. As the Court stated in Koon v. United States, 518 U.S. 81 (1996), "[a] district court's d ecision to depart from the Guidelines . . . will in most cases be due substantial deference, for it embodies the traditio nal exercise of discretion by a sentencing court." Id. at 98. See also United States v. Kikumura, 918 F.2d 1084, 1110 (3d Cir. 1990). However, here the majority has raised a n issue as to the relationship between the Guideline govern ing firstdegree murder and that governing second-degree murd er that fairly requires some further attention by the District Court. Therefore, I concur with its decision to rem and, as long as it is understood that the District Court re tains the discretion to depart upwards nine levels again shou ld it fully explain why it determined to do so.

25COWEN, Circuit Judge, concurring in part, and disse nting in

part.

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

which affirms the District Court's denial of Paster 's motion for a downward departure based on aberrant behavior

. Because the District Court's refusal to depart on t hat ground was predicated on a misapprehension of the applicable legal standard for an aberrant behavior departure, I would remand for re-sentencing so that the

District Court could reconsider the motion under th e correct standard.

In United States v. Marcello, 13 F.3d 752 (3d Cir. 1994), this court, consistent with every other circuit cou rt to have considered the issue, recognized that the Guideline s permit a sentencing court to downwardly depart in a case w here a defendant's criminal conduct can fairly be characte rized as a "single act[ ] of aberrant behavior." Id. at 760 (quoting U.S.S.G. Ch. 1, Pt. A, intro. comment P 4(d)). The courts of appeal are not in agreement, however, as to the cor rect definition of aberrant behavior. A minority of circ uits have adopted a "totality of the circumstances test" that , as its name implies, allows a sentencing court to consider a multitude of factors, including a defendant's lack of a criminal record and his prior good deeds, in assess ing whether a downward departure for aberrant behavior is appropriate. See Zecevic v. United States Parole Commission, 163 F.3d 731, 734-35 (2d Cir. 1998); Un ited States v. Grandmaison, 77 F.3d 555, 564 (1st Cir. 1 996).1 Under the totality test, as explained by its propon ents, " `when all is said and done, the conduct in questi on must truly be a short-lived departure from an otherwise lawabiding life.' " Id. at 735 (quoting United States v. Colace, 126 F.3d 1229, 1231 (9th Cir. 1992)).

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1. The Zecevic court listed the following factors t hat courts have considered in applying totality of the circumstance test: "(1) the singular nature of the criminal act; (2) the defendant's cri minal record; (3) psychological disorders form which the defendant wa s suffering at the time of the offense; (4) extreme pressures under wh ich the defendant was operating; (5) letters from friends and family expressing shock at the defendant's behavior; and (6) the defendant's motiv ations in committing

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

26We considered and rejected the totality approach in

Marcello. We reasoned that a defendant's criminal h istory, or lack thereof, is already incorporated into the G uidelines' sentencing formula, and that it would be inappropri ate to factor it in once again under the guise of aberrant behavior. Marcello, 13 F.3d at 761.2 Instead, we adopted the majority view, first articulated by the Seventh Circuit in U nited States v. Carey, 895 F.2d 318, 325 (7th Cir. 1990), which focuses the aberrant behavior inquiry on the crimin al conduct itself, not on a defendant's "high standing in the community and his lack of prior conviction." Carey, 895 F.2d at 324. Under this approach, a sentencing cour t considering an aberrant behavior departure must dec ide

whether a defendant's criminal behavior was " `a spontaneous and seemingly thoughtless act rather th an one which was the result of substantial planning.' " Ma rcello, 13 F.3d at 761 (quoting Carey, 895 F.2d at 325). The r eason for focusing on whether a defendant's criminal act is spontaneous and unplanned is that " `an act which o ccurs suddenly and is not the result of a continued refle ctive process is one for which the defendant may be argua bly less accountable.' " Id. Applying this standard in Marcello,

we affirmed the district court's conclusion that th e defendant, who over a one-week period structured ba nk deposits to evade currency transaction reporting requirements, was not entitled to an aberrant behav ior departure because some pre-planning was required to commit the offense. Id. Similarly, in Carey, the Se venth Circuit held that an aberrant behavior departure wa s not allowed where the defendant had engaged in a check- kiting scheme over a fifteen-month period. 895 F.2d at 324 35. See also United States v. Glick, 946 F.2d 335 (4th Cir. 1991) (no aberrant behavior departure where defenda nt sent five separate letters containing misappropriat ed information over the course of ten weeks); United S tates v. Garlich, 951 F.2d 161 (8th Cir. 1991) (no aberrant behavior

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2. This conclusion has since been bolstered by the Supreme Court's recognition in Koon v. United States, 518 U.S. 81, 113 (1996), that the Guidelines specifically prohibit a downward departu re on the ground that a Criminal History Category I fails to reflect a particular

defendant's

low likelihood of recidivism.

27where defendant planned and executed a fraudulent

financing scheme over a one-year period).

In stark contrast to those cases, all of which invo lved offenses that had been planned for days, weeks or e ven months, in this case the District Court found as a matter of fact that "[u]p until a few minutes prior to the stabbing, Paster had no plan to kill his wife." Paster, 17 F. Supp. 2d 345, 348 (M.D. Pa. 1998). The court also noted that "there are indications that the murder was spontaneous." I d. at 351. Despite these findings, however, the District Court concluded that it did not have the authority to dep art for aberrant behavior. The court explained:

The murder was not committed in a thoughtles s manner. Thoughtlessness is an essential elem ent under Marcello, Thoughtfulness [sic] is miss ing in this case. Paster had ample time in the minutes p receding the stabbing to think about whether to murde r his wife. Further, the number of times Paster st abbed his wife indicates that he thought about the act as it was being done. There is no authority to depart on the

basis of aberrant behavior under Marcello. W e will deny Paster's request for a departure on the basi s of

aberrant behavior.

Id.

The problem with this reasoning is that, under the District Court's definition of the term "thoughtles s," a defendant who has any opportunity to consider his c rime, no matter how fleetingly, would be ineligible for a departure

based on aberrant behavior. Were this a correct sta tement of law, however, there would be no point in having an aberrant behavior departure in the first place beca use no defendant would ever qualify for it, save perhaps a hypothetical one concocted for a law school examina tion. In real life, those who commit crimes almost always ha ve some opportunity, even if for only a minute or two, but typically much longer than that, to consider their actions. See Zecevic, 163 F.3d at 734 ("If actions taking pl ace over such a short period can be deemed to include suffic ient planning and preparation to remove them from the re alm of the `spontaneous and thoughtless,' this standard is limited indeed.").

28Consider, for instance, the defendant in United Sta tes v.

Russell, 870 F.2d 18 (1st Cir. 1989), a case which is often cited as an "excellent example" of aberrant behavio r, particularly among those courts employing the "spontaneous and thoughtless" test. See , e.g, Care y, 895 F.2d at 325. The defendant was a Wells Fargo armore d truck driver and his partner was the truck's messen ger. A bank mistakenly gave the pair an extra bag of money containing $80,000, which both men, yielding to temptation, decided to keep for themselves. A week later, however, Russell confessed the crime, returned the money that he had kept, and cooperated with authorities. Under the definition of "thoughtless" adopted by the Dist rict Court, Russell would have been ineligible for an ab errant behavior departure because he undoubtedly had some opportunity, though perhaps not very long, to conte mplate whether or not to keep the bank's money.

In my view, the "spontaneous and thoughtless" test does not require sentencing courts to literally determin e whether a defendant, at any time prior to his offense, had time to

think about his criminal conduct. The answer to tha t question will invariably be yes. Instead, the test asks more generally whether the defendant's crime was the pro duct of planning and deliberation or, as we stated in Marce llo, "a continued reflective process." 13 F.3d at 761 (quot ing Carey, 895 F.2d 325). If it was, then an aberrant b ehavior departure will be unavailable. If it was not, a dis trict court should retain the discretion to depart. See United States v. Winters, 105 F.3d 200 (5th Cir. 1997) (noting that "one

isolated assault" could be considered aberrant beha vior, but not a subsequent effort to conceal the offense by coercing a witness to give false testimony). Applyi ng that

test to the facts of this case -- where the defenda nt did not plan the murder, the entire episode took place over the course of no more than a few minutes, and the defen dant

confessed to the crime within minutes of its commis sion and made no attempt to conceal his culpability -- I would

hold that the District Court had the discretion to depart based on aberrant behavior, and that the District C ourt's

29conclusion that it had "no authority" to award the

departure was an error of law necessitating a reman d.3

The majority endorses the District Court's holding that Paster is not eligible for an aberrant behavior dep arture because he did not act in a "thoughtless" manner. I n particular, the majority relies on the District Cou rt's observations that Paster had time in the minutes pr eceding the murder to think about his actions, and that Pas ter stabbed his wife so many times that he must have be en thinking about the murder while he was committing i t. Maj. Op. at 8-9. In my view, neither of these reasons su pport the conclusion that Paster did not act "thoughtlessly." As to the latter, if a defendant who is conscious of his acti ons during

the commission of a crime is deemed not to have act ed aberrantly, then the departure will only be availab le to that

minuscule class of defendants who are liable for cr imes committed by involuntary reflex, and perhaps also t o those who are in a hypnotic state at the time of their of fense. Surely this is not what the Sentencing Commission o r the Marcello panel intended when they recognized that " single acts of aberrant behavior" may justify a downward departure. U.S.S.G. Ch. 1, Pt. A, intro. comment P 4(d). That Paster may or may not have thought about wheth er to murder his wife in the moments before the stabbing also should not be a sufficient basis to disqualify him for an aberrant behavior departure. The murder of Dr. Bost rom, while undoubtedly a brutal and heinous crime, was certainly not the product of any meaningful deliber ation or reflection on the part of Paster; to the contrary, all

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

"no authority to depart on the basis of aberrant behavi or under Marcello," Paster, 17 F. Supp. 2d at 351, did not really mean what it said (i.e.,

that the District Court thought it lacked discretion to grant Paster's downward departure motion). Instead, the majority p osits, the statement merely reflects the District Court's determination that "the facts of this case applied to the principles announced in Marcell o do not qualify Paster for an aberrant behavior departure." Maj. Op . at 11. I cannot agree. We must presume that the able and experience d District Judge meant precisely what he said in concluding that he had "no authority" to grant Paster's downward departure motion. The ma jority's effort to

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

30indications are that Paster acted spontaneously and in

response to a series of deeply painful revelations from his wife. Under these circumstances, the majority's con clusion that Paster failed to act in a "thoughtless" fashio n can only be justified by the most literal and wooden definit ion of that

term.

None of this is to say, however, that an aberrant b ehavior departure was required in this case. Not every crim e that is committed spontaneously and without prior planning merits a reduced sentence. If after analyzing the f actual record, for example, the District Court concluded t hat the murder of Dr. Bostrom was the culmination of a long standing pattern of domestic violence on the part o f Paster, then a departure based on aberrant behavior would h ave obviously been inappropriate. A departure would hav e also

been unwarranted if the District Court concluded th at the lack of planning in this case was sufficiently acco unted for by the base offense level for second-degree murder. U.S.S.G. S 2A1.2; see generally Koon v. United Stat es, 518 U.S. 81, 95-96 (1996). But the District Court never reached these issues. It summarily concluded that it had "n o authority" under Marcello to depart because Paster' s criminal act was not committed in a "thoughtless" m anner. Because that conclusion was based on an erroneous a nd overly restrictive understanding of the legal stand ard governing an aberrant behavior departure, we should allow

the District Court to reconsider this issue at re-s entencing.

* * *

Finally, I offer a brief comment concerning the Dis trict Court's grant of a nine-level departure for extreme conduct, which nearly tripled the sentence that Paster recei ved. Judge Oberdorfer has carefully identified the reaso ns why the structure of the Guidelines and the applicable case law render the magnitude of that departure unreasonable . I shall not repeat them here. I add only that at re-s entencing, for those same reasons, the District Court should n ot again impose a nine-level upward departure. While Judge S loviter

is of course correct that the District Court's deci sion to depart is entitled to great deference, it is equall y true that:

A judge may not say: "I have decided to depa rt, so I now throw away the guidelines." The guidelin es are

31designed to bring openness and consistency t o

sentencing, to even out the effects of diffe rent judges' perspectives on desert and deterrence. . . . Unless there is discipline in determining the amount of d eparture, however, sentencing disparity will reappear.

United States v. Ferra, 900 F.2d 1057, 1061-62 (7th Cir. 1990) (citation omitted). In my view, the nine-leve l departure imposed in this case is emblematic of the very sentencing disparities that the Guidelines were des igned to counter. It should not be repeated.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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