1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-19-1999

USA v. Paster

Precedential or Non-Precedential:

Docket 98-7270

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Recommended Citation

"USA v. Paster" (1999). 1999 Decisions. Paper 104.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/104
Filed April 19, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 98-7270 

UNITED STATES OF AMERICA 

v. 

MITCHELL FREDERICK PASTER, 

 Appellant 

On appeal from the United States District Court 

for the Middle District of Pennsylvania 

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

District Judge: Honorable Malcolm Muir 

Argued December 15, 1998 

Before: SLOVITER and COWEN, Circuit Judges, 

and OBERDORFER, District Judge* 

(Filed April 19, 1999) 

Shalom D. Stone (Argued) 

Walder, Sondak & Brogan 

Roseland, NJ 07068 

 Attorney for Appellant 

Wayne P. Samuelson (Argued) 

United States Attorney's Office 

Williamsport, PA 17703 

 Attorney for Appellee 

_________________________________________________________________ 

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

of Columbia, sitting by designation. 
OPINION OF THE COURT 

OBERDORFER, District Judge. 

We here review sentencing decisions rendered by the

District Court below in a very troubling case of murder on 

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

jury returned an indictment charging Mitchell Frederick 

Paster with premeditated murder of his wife, Dr. Margaret 

Bostrom, by stabbing her repeatedly with a butcher knife. 

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

guilty, and later noticed his intention to plead insanity. 

Thereafter, the government indicated that it would not seek 

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

eve of trial, the government and Paster agreed that he 

would plead guilty to second degree murder. At the hearing 

preliminary to his acceptance of the plea, the District Judge 

elicited from the probation officer and the prosecutor their 

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

imprisonment ranging from 168 to 210 months. After a 

two-day presentence hearing, the District Court ordered 

Paster confined for 365 months. 

On this appeal, Paster challenges four aspects of the 

sentencing decision: 1) denial of a downward departure on 

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

denial of a downward departure on account of Paster's 

arguably aberrant behavior; 3) denial of an additional onelevel downward adjustment for Paster's alleged acceptance 

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

departure for "extreme conduct." For the reasons stated 

herein, we affirm the District Court with respect to issues 

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

remand for resentencing after the District Judge has an 

opportunity to reconsider his resolution of issue four in 

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

98 (1996). 

 2 
I. 

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

testimony at the presentence hearing disclosed, and the 

District Court found, that Paster and Margaret met in 1985 

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

in Lewisburg, Pennsylvania, where she worked as a 

psychologist at the United States Penitentiary. In the 

months immediately preceding the August 1996 stabbing, 

the couple experienced serious marital problems. One night 

in July 1996, after Margaret went out with her supervisor 

and did not come home, Paster left Lewisburg for his 

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

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

July 18.1 Thereafter the two reportedly reconciled by 

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

revealed that she was having an affair with her supervisor, 

Paster returned to his parents' home. 

After further efforts to reconcile, on the night of August 

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

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

separate occasions that night. When she returned the 

following morning, he confronted her about where she had 

been. She apparently became upset, and telephoned the 

warden at the Lewisburg Penitentiary, to whom Paster had 

revealed the ongoing affair. Margaret handed Paster the 

telephone receiver, and instructed him to retract his prior 

statement to the warden. Paster told the warden that he 

would not retract the statement, despite being pressured. 

After hanging up the phone, Margaret mentioned that she 

had a friend on the reservation who kept weapons at his 

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

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

then told Paster that she had had between forty and fifty 

affairs during their relationship, and planned to continue to 

pursue the relationship with her supervisor. Thereupon she 

went upstairs to take a shower, leaving Paster downstairs. 

_________________________________________________________________ 

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

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

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

 3 
At one point, Paster went outside and conversed with a 

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

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

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

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

as Margaret emerged from the shower, stabbed her with the 

knife numerous times. According to an autopsy report 

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

died of multiple stab wounds to various vital organs. 

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

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

heart -- and eleven slash wounds indicative of defensive 

action. Dr. Land also reported that one stab wound 

completely penetrated Margaret's sternum, and that one 

wound penetrated her body and the floor tile beneath her. 

At the sentencing hearing, Dr. Land testified that 

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

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

189. 

After the murder, Paster telephoned his mother at her 

place of employment. He then called 911 and reported that 

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

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

and described the location of the bloody knife. He remained 

on the phone until authorities arrived. First on the scene 

were personnel from the Bureau of Prisons. He told them 

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

upstairs bathroom. The BOP personnel found her body in 

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

blood -- dead. 

Later that afternoon, agents of the Federal Bureau of 

Investigation arrested Paster and took him to the Lewisburg 

Penitentiary Training Center for questioning. Atfirst, he 

said that he could not remember what happened upstairs; 

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

not want to talk about the events that had transpired. 

According to a February 25, 1998 presentence investigation 

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

but acknowledged his involvement in the offense." PSR at 

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

motion to suppress statements that he made to 

 4 
investigators on the theory that the FBI agents induced his 

statements by promising that he would be able to call his 

mother. 

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

Robert Sadoff, a psychiatrist, concluded after two 

examinations that Paster "did not deliberate or premeditate 

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

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

Johnson, Chief Psychiatrist for the Mental Health Division 

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

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

and that his reported symptoms of memory loss were 

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

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

insanity defense. Thereafter, on the eve of trial and 

pursuant to the plea agreement, Paster pled guilty to 

second degree murder, and the case entered its sentencing 

phase. 

In calculating Paster's sentence, the District Judge began 

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

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

He then granted a two-level reduction for acceptance of 

responsibility; denied enhancements for premeditation and 

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

extreme conduct; denied a downward departure for 

aberrant behavior; denied a downward departure for 

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

reduction for acceptance of responsibility. The District 

Court calculated an offense level of 40. Having no prior 

criminal record, Paster was in criminal history category I, 

and therefore subject to a guideline incarceration range of 

292-365 months. The District Court imposed the maximum 

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

months. Paster appeals. 

II. 

Paster first argues that the District Court erred by 

denying his motion for a downward departure pursuant to 

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

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

 5 
contributed significantly to provoking the offense behavior." 

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

his wife's revelation of past infidelity exposed wrongful 

conduct and was the sole provocation for the fatal stabbing. 

The District Court rejected Paster's argument, reasoning 

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

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

true do not indicate that the victim substantially provoked 

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

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

though we have the authority to depart for victim 

misconduct the conduct of the victim in this case does not 

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

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

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

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

and such conduct must have "contributed significantly to 

provoking the offense behavior." The policy statement 

instructs that 

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

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

 victim, or other relevant physical characteristics, in 

 comparison with those of the defendant; b) the 

 persistence of the victim's conduct and any efforts by 

 the defendant to prevent confrontation; c) the danger 

 reasonably perceived by the defendant, including the 

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

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

 other relevant conduct by the victim that substantially 

 contributed to the danger presented. 

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

guidelines contemplates departures where the victim's 

conduct posed actual, or reasonably perceived, danger to 

the defendant, with emphasis on physical danger. Court 

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

implies: Generally only violent conduct, albeit wrongful, 

justifies a downward departure. See Blankenship v. United 

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

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

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

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

 6 
975 (7th Cir. 1990) (physical blocking of doorway was not 

"sufficient physical contact to provoke the attack") 

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

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

hardly any greater provocation than to have someone

having an affair with your spouse"). 

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

there was no danger or reasonable perception of danger to 

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

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

strength posed no threat to Paster. Second, Paster himself 

initiated the fatal confrontation. Third, the record contains 

no suggestion that Margaret had a reputation for violence; 

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

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

circumstances -- Paster armed with a knife, attacking his 

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

provocation claim.2 

The foregoing considered, it was not necessary to decide 

whether revelation of past infidelities, or the infidelities 

themselves, could ever constitute such "wrongful conduct" 

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

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

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

response was grossly disproportionate to any provocation.3 

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

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

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

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

_________________________________________________________________ 

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

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

appeals upheld a downward departure upon consideration of 

uncontroverted evidence that the female defendant had refused the 

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

considerably larger than the defendant; that the victim was intoxicated 

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

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

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

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

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

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

 7 
for proportionality "is evidenced by the factors that 

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

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

departure for defendant who did not physically harm the 

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

Cir. 1994) (affirming departure for defendant who was 

engaged in physical altercation with the victim). 

Accordingly, we affirm denial of a downward departure 

pursuant to S 5K2.10. 

III. 

Paster next challenges the District Court's refusal to 

grant a downward departure for "aberrant behavior." See 

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

addressed that ground for departure in United States v. 

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

Supreme Court's landmark decision in Koon v. United

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

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

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

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

spontaneous and thoughtless, and no consideration is 

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

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

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

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

 A single act of aberrant behavior . . . generally 

 contemplates a spontaneous and seemingly 

 thoughtless act rather than one which was the result 

 of substantial planning because an act which occurs 

 suddenly and is not the result of a continued reflective 

 process is one for which the defendant may be 

 arguably less accountable. 

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

Invoking Marcello, the District Court found "indications 

that the murder was spontaneous" and that there was

"insufficient evidence to show that Paster had planned the 

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

the District Court held that "the murder was not committed 

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

 8 
had ample time in the minutes preceding the stabbing to 

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

of times Paster stabbed his wife indicates that he thought 

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

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

basis of aberrant behavior under Marcello." Id. 

Paster challenges the District Court's construction of the 

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

to Paster, the District Court interpreted the term to mean 

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

distinguished from "without prior thought," "not well 

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

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

would render meaningless the concept of "aberrant 

behavior" because most crimes entail a mens rea that 

would preclude a finding of "thoughtlessness." Because 

Paster argues that the District Court misinterpreted the 

legal standard enunciated in Marcello, we exercise plenary 

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

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

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

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

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

(undertaking plenary review because district court "adopted 

the wrong standard"). 

We decline to upset the District Court's decision rejecting 

departure. The District Court applied the correct legal 

standard by properly focusing on the term "thoughtless," 

because Marcello made thoughtlessness a necessary 

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

_________________________________________________________________ 

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

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

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

based 

on "thoughtless" activity. The government argues alternatively that 

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

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

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

because we are satisfied that the District Court applied the proper 

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

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

not "thoughtless" makes the single act issue redundant. 

 9 
Specifically, the District Court found that Paster "had 

ample time in the minutes preceding the stabbing to think 

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

times Paster stabbed his wife indicates that he thought 

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

at 351 (emphasis added). These penultimate findings amply 

support the ultimate finding that the murder was not 

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

make an additional ultimate finding about a "continued 

reflective process" constitute reversible error in the context 

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

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

time in the minutes preceding the stabbing" and the

multiple stabbings convey the Marcello concept of a

continuum, as distinguished from a mere "opportunity to 

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

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

imports the concept of "thoughtful," the antonym of

"thoughtless." See Webster's Third New International 

Dictionary 2381 (1971).5 

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

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

erroneous, and its application of the Marcello standard 

supported the conclusion that on these facts Paster was not 

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

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

applying the correct legal standard, is discretionary and 

unreviewable"). Cases from other circuits that affirmed 

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

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

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

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

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

had "no authority to depart on the basis of aberrant 

_________________________________________________________________ 

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

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

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

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

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

passively when his wife and her paramour separatelyflaunted their affair 

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

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

may fairly be construed as nothing more than a conclusion 

that the facts of this case applied to the principles 

announced in Marcello do not qualify Paster for an aberrant 

behavior departure. Accordingly, we affirm denial of a 

departure for aberrant behavior. 

We would reach the same result were we to test our 

analysis by direct reference to Koon. Koon established that 

a sentencing court considering a departure mustfirst ask, 

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

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

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

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

the Guidelines forbid, encourage, discourage, or fail to 

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

The answer to this second inquiry shapes the remaining 

analysis: 

 If the special factor is a forbidden factor, the 

 sentencing court cannot use it as a basis for departure. 

 If the special factor is an encouraged factor, the court 

 is authorized to depart if the applicable Guideline does 

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

 a discouraged factor, or an encouraged factor already 

 taken into account by the applicable Guideline, the 

 court should depart only if the factor is present to an 

 exceptional degree or in some other way makes the 

 case different from the ordinary case where the factor 

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

 the court must, after considering the structure and 

 theory of both relevant individual guidelines and the 

 Guidelines taken as a whole, decide whether it is 

 sufficient to take the case out of the Guideline's 

 heartland. The court must bear in mind the 

 Commission's expectation that departures based on 

 grounds not mentioned in the Guidelines will be highly 

 infrequent. 

Id. (citations and internal quotation marks omitted) 

(emphasis added). 

Aberrant behavior is an "unmentioned factor." See United 

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

 11 
the District Court relied entirely upon the Marcello 

definition of the term. Having determined that Paster's 

behavior was not aberrant within the meaning of Marcello, 

the District Court had no occasion to attempt to extrapolate 

from "the structure and theory of both relevant individual 

guidelines and the Guidelines taken as a whole" whether 

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

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

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

therefore was consistent with both Marcello and with the 

Koon Court's caution that departures relying on 

unmentioned factors should be "highly infrequent." Id. 

Accordingly, we affirm denial of a departure for aberrant 

behavior. 

IV. 

Paster next argues that, even though the District Court 

granted him a two-level adjustment for acceptance of 

responsibility, it erred by denying his motion for an 

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

guidelines. That section provides that a defendant is 

entitled to an additional one-level decrease if he qualifies 

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

offense level is sixteen or greater, and he 

 has assisted authorities in the investigation or 

 prosecution of his own misconduct by taking one or 

 more of the following steps: (1) timely providing 

 complete information to the government concerning his 

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

 authorities of his intention to enter a plea of guilty, 

 thereby permitting the government to avoid preparing 

 for trial and permitting the court to allocate its 

 resources efficiently. 

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

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

Court awarded him a two-level reduction for acceptance of 

responsibility and his offense level was greater than 

sixteen. The District Court concluded, however, that Paster 

did not qualify for the additional one-level reduction 

because his decision to plead guilty after the jury was 

 12 
selected did not constitute timely notification within the 

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

Paster appeals this determination. First, he argues that 

although the District Court considered whether he timely 

notified the government of his intent to plead guilty, it 

failed to consider whether he timely provided complete 

information concerning his involvement in the crime. Paster 

argues further that his statements to the Bureau of Prisons 

personnel who responded to his call to 911 support a 

finding that he timely provided complete information 

concerning his involvement in the crime -- and therefore 

should have received the additional one-level reduction. 

Because Paster contends that the District Court committed 

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

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

We are persuaded that Paster has the better of this

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

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

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

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

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

defendant "has assisted authorities in the investigation or 

prosecution of his own misconduct by taking one or more of 

the following steps: (1) timely providing complete 

information to the government concerning his own 

involvement in the offense; or (2) timely notifying

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

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

considered only whether Paster satisfied the latter criterion, 

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

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

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

Maurello, 76 F.3d at 1308. 

The government argues that even if the District Court 

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

reduction because "throughout the investigation .. . and 

continuing through his interview with the Probation Officer 

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

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

For example, the government alludes to evidence that 

Paster initially told investigators that he did "not 

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

government says, by his admissions to the emergency

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

at 28. The government also cites psychiatric reports and 

the presentence investigation report, which purportedly 

document that Paster attempted to ascribe blame for the 

killing to his wife's revelation of infidelity. 

The government's argument cannot cure the District 

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

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

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

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

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

that supports an additional one-level reduction. For 

example, the District Court found that Paster called 911, 

reported that he had stabbed his wife, provided directions 

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

the phone until authorities arrived, and cooperated with 

authorities while the crime scene was investigated. Paster, 

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

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

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

unable to remember many of the details of the murder" 

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

government's psychiatrist concluded that Paster suffered 

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

supports a finding of genuine memory loss rather than 

obdurate or unhelpful conduct. Finally, that the 

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

independent of his assistance does not preclude an 

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

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

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

findings establish that no reasonable trier of fact could 

conclude that Paster was not entitled to an additional onelevel reduction. See, e.g., United States v. Eyler, 67 F.3d 

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

_________________________________________________________________ 

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

Chee, 

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

additional one-point reduction because the defendant consistently denied 

certain alleged conduct. Id. at 1494. 

 14 
remand for Paster to be resentenced to reflect an additional 

one-level reduction in his offense level. 

V. 

Paster's final, and most extensive, challenge is a multipronged one to the nine-level upward departure pursuant 

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

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

conduct was unusually heinous, cruel, brutal, or degrading 

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

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

gratuitous infliction of injury, or prolonging of pain or 

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

District Court concluded that some "upward departure 

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

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

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

The departure increased the adjusted guideline range from 

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

365-month sentence actually imposed is 213.5 months

greater than the median of the range for base second 

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

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

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

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

district court, the propriety of any departure, and the 

reasonableness of its term. Id. at 1098. 

A. 

Paster first argues that the District Court erred by not 

articulating and applying a clear and convincing burden of 

proof to support the nine-level upward departure. In 

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

1084, which established that when a departure "is 

sufficiently great that the sentencing hearing can be fairly 

characterized as `a tail which wags the dog of the 

substantive offense,' . . . the factfinding underlying that 

departure must be established at least by clear and

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

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

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

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

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

departure here imposed, compared to a base second degree 

murder sentence, requires clear and convincing evidence, 

and that the District Court did not expressly recite the clear 

and convincing formula; it argues, nonetheless, that the 

evidence met the requisite legal standard. We agree: 

Incantation of the term "clear and convincing" was not 

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

Paster contends that the District Court not only failed to 

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

convincing evidence that his conduct was unusually 

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

argument is unconvincing. Paster never repudiated his 

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

the extensive and gory evidence concerning the killing, 

including the expert pathologist's extensive and 

uncontradicted testimony about the sixteen stab wounds, 

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

eleven incisive wounds that Paster inflicted on his wife. 

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

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

unchallenged evidence was clear and convincing proof of 

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

B. 

Paster next argues that the District Court erred by

enhancing his sentence for extreme conduct because the 

Sentencing Commission regarded second degree murder, 

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

established guidelines that adequately punish perpetrators 

on that assumption. According to Paster, the unusually 

heinous, cruel, and brutal character of his conduct was 

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

_________________________________________________________________ 

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

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

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

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

applicable 

burden of proof, quite a different matter. 

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

argument finds tangential support in this court's 

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

attempted murder guideline "plainly accounts for the fact 

that attempted murder, by its very nature, involves heinous 

conduct." Id. The government counters that the District 

Court's specific factual findings support a determination 

that by any definition Paster's conduct was unusually 

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

for the government's position. 

By now it is familiar that when a factor is an 

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

court is to determine whether that factor is taken into 

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

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

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

so the court below was obligated to assess whether 

unusually heinous, cruel, brutal, or degrading conduct is 

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

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

given factor is present to a degree not adequately 

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

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

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

courts in making such factual determinations, appellate 

courts accord considerable deference to their departure 

decisions, limiting review on appeal to abuse of discretion. 

Id. at 98-100. 

We are satisfied that the District Court exercised 

appropriate discretion in determining that Paster's conduct 

was sufficiently more heinous than conduct that 

constitutes the so-called "heartland" of second degree 

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

example, that Paster stabbed Margaret sixteen times with a 

butcher knife, that eight or nine of the wounds penetrated 

the heart area, that ten of the wounds were immediately 

life-threatening, and that Paster also inflicted eleven 

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

also observed photographs of the victim that "graphically 

demonstrate the heinous and extreme nature of Paster's 

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

 17 
with other second degree murders, the gripping detailed 

testimony effectively demonstrates that Paster's crime was 

unusually violent and brutal. We are satisfied that the 

District Court did not abuse its discretion in deciding to 

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

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

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

C. 

In approving an extreme conduct departure, we do not 

overlook Paster's argument that the departure was literally 

inappropriate because his conduct matched none of the 

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

victim, gratuitous infliction of injury, or prolonging of pain 

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

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

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

ruled only that by articulating specific examples of 

unusually heinous, cruel, brutal, or degrading conduct, 

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

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

examples listed in the guideline constitute the universe of 

conduct condemned by that section. Indeed, the guideline 

itself identifies these three examples as just that: nonexclusive examples. ("Examples of extreme conduct include 

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

was extreme even if it was not specifically branded with one 

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

As a second prong of his challenge to the extreme 

conduct finding, Paster argues that his crime was no more 

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

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

where the defendant choked the victim to unconsciousness, 

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

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

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

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

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

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

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

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

 18 
cannot gainsay the brutality of the conduct perpetrated in 

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

deserving of being branded "extreme." 

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

conduct arguably more heinous, cruel, and brutal than 

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

its discretion by concluding that Paster's conduct was 

outside the heartland of second degree murder cases. 

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

explicit findings about the heinous, cruel, and brutal 

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

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

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

349 -- thereby demonstrating an awareness of the relevant 

standard and a commitment to undertake a departure only 

when warranted. All of the foregoing considered, we affirm 

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

for extreme conduct. 

D. 

Having concluded that the District Court did not abuse 

his discretion by awarding a departure for extreme conduct, 

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

upward departure, which increased by more than seventeen 

years the applicable median sentence, was unreasonable. 

The Sentencing Commission established a 243-month 

spread between the median sentence for first degree

murder adjusted by a two-level reduction for acceptance of 

responsibility (364.5) and the median sentence for second 

degree murder adjusted for the same two-point reduction 

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

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

murder sentence. This aspect of the sentence here imposed 

gives us pause. 

_________________________________________________________________ 

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

life 

imprisonment; adjusted two levels for acceptance of responsibility, the 

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

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

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

offense level is adjusted two levels for acceptance of responsibility. 

 19 
"Our review of the sentencing court's decision in this 

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

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

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

"objective standards to guide the determination of 

reasonableness" -- including analogies within the 

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

the guidance afforded by the statutory scheme that they 

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

both parties acknowledge, that "there are no provisions in 

the guidelines which suggest an analogy from which to 

determine the appropriate level of upward departure." 

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

search for such analogies yield a plausible one.9 

Paster proposes as an alternative approach an increase of 

the offense level by analogy to the defendant's criminal 

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

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

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

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

months, some 104-130 months fewer than he actually 

received. 

We find the criminal history analogy inappropriate here. 

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

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

criminal history category does not adequately reflect the 

seriousness of the defendant's past criminal conduct or the 

likelihood that the defendant will commit other crimes 

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

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

criminal history category misrepresented the seriousness of 

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

the likelihood that he would engage again in the arguably 

_________________________________________________________________ 

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

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

aggravated assault, respectively. Each offense is subject to specific 

upward adjustments for particular offense characteristics, such as five 

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

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

extreme conduct departure which is to be measured here. 

 20 
aberrant conduct at issue here. Our appraisal of the record 

confirms these conclusions. 

Finding no acceptable analogy in the guidelines, the 

District Court surveyed what it considered to be analogous 

case law. The District Judge collected two cases that 

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

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

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

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

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

From these raw numbers ranging from five to eleven the 

District Court extrapolated nine. Paster argues that the 

four cases cited by the District Court are inapposite 

because they involved more severe offenses, and because 

the upward departures were based only in part on the 

respective defendants' "extreme conduct." The government 

defends the District Court's approach, and at oral 

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

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

upward departure. 

Guidelines construct a bare framework for sentencing 

decisions, and the interstices permit courts to use a 

common law approach to fashion particular sentences. 

However, notwithstanding the substantial deference owed 

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

methodology used here. First, the District Court cited the 

several cases without critical analysis of the particular 

extreme conduct and other grounds for departure in those 

cases compared with the nine-level departure here solely for 

extreme conduct; the District Court simply concluded"that 

a nine level upward departure for Paster's extremely brutal 

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

We question whether on closer analysis extrapolation 

from the sentences imposed in the four cases referenced by 

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

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

conduct departure here. For example, in Roberson, 872 

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

recognized that the district court based the upward

departure on three discrete grounds, only one of which was 

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

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

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

enhancements linked to consequences suffered by ten

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

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

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

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

upward departures that were only five levels, and 

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

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

these cases adequately justify the nine-level upward 

departure at issue here. 

There remains the question raised by the convergence of 

the sentence imposed here with the guidelines' prescription 

for first degree murder. To recapitulate, Paster was indicted 

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

unlawful killing of a human being with malice 

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

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

the court accepted, a plea of guilty to second degree 

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

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

the anguish which trial of this ugly case would have 

entailed; it also reduced the severity of the applicable 

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

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

colloquy about the plea agreement, the probation officer 

and the government advised that the likely sentencing 

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

base second degree murder and a two-level enhancement. 

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

The statutory maximum for both first and second degree 

murder is life imprisonment, except that in special

circumstances the death penalty may be imposed upon a 

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

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

guilty of first degree murder with a criminal history of I 

who, after a two-point reduction for acceptance of 

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

imprisonment. The guideline range for a defendant guilty of 

second degree murder with a criminal history of I and a 

 22 
two-point reduction for acceptance of responsibility is 108- 

135 months imprisonment. 

A prime objective of the Sentencing Guidelines was to 

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

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

As the Sentencing Commission has stated, "Congress 

sought reasonable uniformity in sentencing by narrowing 

the wide disparity in sentences imposed for similar criminal 

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

of this guideline policy, however, the Commission 

recognized that defendants differently situated should 

suffer different sentences because "Congress sought

proportionality in sentencing through a system that

imposes appropriately different sentences for criminal 

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

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

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

of disparity comprehends not only treating similarly 

situated defendants differently, but also treating defendants 

who are dissimilarly situated in some relevant way the 

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

degree of departure is appropriate is to use other provisions 

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

The vice of the nine-level upward departure imposed on 

Paster is that he has incurred for second degree murder a 

sentence that would be appropriate for first degree murder 

adjusted two levels for acceptance of responsibility. Thus, if 

the government had required Paster to plead guilty to first 

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

he enjoyed a two-level reduction for acceptance of 

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

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

_________________________________________________________________ 

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

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

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

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

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

41 

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

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

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

supra IV. 

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

lack of disparity between Paster's actual sentence and one 

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

convicted of, a more serious crime distorts proportionality, 

a critical objective of the Sentencing Guidelines. See 

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

VI. 

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

departures for aberrant behavior and victim provocation. 

However, we will remand for resentencing to reflect an 

additional one-level reduction for acceptance of 

responsibility. We also will remand with directions to the 

District Court to reconsider the nine-level upward 

departure for extreme conduct after closer examination of 

the relevant court decisions and for consideration of the 

proportionality concerns raised by the coincidence of the 

second degree murder sentence and the prescribed 

sentence for first degree murder. 

_________________________________________________________________ 

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

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

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

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

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

defendant from consideration for [an acceptance of responsibility] 

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

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

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

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

for an acceptance-of-responsibility reduction"). 

 24 
SLOVITER, Circuit Judge, concurring. 

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

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

government with respect to the nine-level upward 

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

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

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

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

substantial deference, for it embodies the traditional 

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

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

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

as to the relationship between the Guideline governing firstdegree murder and that governing second-degree murder 

that fairly requires some further attention by the District 

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

long as it is understood that the District Court retains the 

discretion to depart upwards nine levels again should it 

fully explain why it determined to do so. 

 25 
COWEN, Circuit Judge, concurring in part, and dissenting in 

part. 

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

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

for a downward departure based on aberrant behavior. 

Because the District Court's refusal to depart on that 

ground was predicated on a misapprehension of the 

applicable legal standard for an aberrant behavior 

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

District Court could reconsider the motion under the 

correct standard. 

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

this court, consistent with every other circuit court to have 

considered the issue, recognized that the Guidelines permit 

a sentencing court to downwardly depart in a case where a 

defendant's criminal conduct can fairly be characterized as 

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

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

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

definition of aberrant behavior. A minority of circuits have 

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

name implies, allows a sentencing court to consider a 

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

criminal record and his prior good deeds, in assessing 

whether a downward departure for aberrant behavior is 

appropriate. See Zecevic v. United States Parole 

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

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

Under the totality test, as explained by its proponents, 

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

truly be a short-lived departure from an otherwise lawabiding life.' " Id. at 735 (quoting United States v. Colace, 

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

_________________________________________________________________ 

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

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

singular 

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

psychological disorders form which the defendant was suffering at the 

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

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

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

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

 26 
We considered and rejected the totality approach in

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

or lack thereof, is already incorporated into the Guidelines' 

sentencing formula, and that it would be inappropriate to 

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

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

view, first articulated by the Seventh Circuit in United 

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

focuses the aberrant behavior inquiry on the criminal 

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

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

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

considering an aberrant behavior departure must decide 

whether a defendant's criminal behavior was " `a 

spontaneous and seemingly thoughtless act rather than one 

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

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

for focusing on whether a defendant's criminal act is 

spontaneous and unplanned is that " `an act which occurs 

suddenly and is not the result of a continued reflective 

process is one for which the defendant may be arguably 

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

we affirmed the district court's conclusion that the 

defendant, who over a one-week period structured bank 

deposits to evade currency transaction reporting 

requirements, was not entitled to an aberrant behavior 

departure because some pre-planning was required to

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

Circuit held that an aberrant behavior departure was not 

allowed where the defendant had engaged in a check-kiting 

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

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

1991) (no aberrant behavior departure where defendant 

sent five separate letters containing misappropriated 

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

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

_________________________________________________________________ 

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

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

Guidelines specifically prohibit a downward departure on the ground 

that a Criminal History Category I fails to reflect a particular 

defendant's 

low likelihood of recidivism. 

 27 
where defendant planned and executed a fraudulent 

financing scheme over a one-year period). 

In stark contrast to those cases, all of which involved 

offenses that had been planned for days, weeks or even 

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

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

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

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

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

351. Despite these findings, however, the District Court 

concluded that it did not have the authority to depart for 

aberrant behavior. The court explained: 

 The murder was not committed in a thoughtless 

 manner. Thoughtlessness is an essential element 

 under Marcello, Thoughtfulness [sic] is missing in this 

 case. Paster had ample time in the minutes preceding 

 the stabbing to think about whether to murder his 

 wife. Further, the number of times Paster stabbed his 

 wife indicates that he thought about the act as it was 

 being done. There is no authority to depart on the 

 basis of aberrant behavior under Marcello. We will deny 

 Paster's request for a departure on the basis of 

 aberrant behavior. 

Id. 

The problem with this reasoning is that, under the 

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

defendant who has any opportunity to consider his crime, 

no matter how fleetingly, would be ineligible for a departure 

based on aberrant behavior. Were this a correct statement 

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

aberrant behavior departure in the first place because no 

defendant would ever qualify for it, save perhaps a

hypothetical one concocted for a law school examination. In 

real life, those who commit crimes almost always have 

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

typically much longer than that, to consider their actions. 

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

such a short period can be deemed to include sufficient 

planning and preparation to remove them from the realm of 

the `spontaneous and thoughtless,' this standard is limited 

indeed."). 

 28 
Consider, for instance, the defendant in United States v. 

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

cited as an "excellent example" of aberrant behavior, 

particularly among those courts employing the 

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

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

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

bank mistakenly gave the pair an extra bag of money

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

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

however, Russell confessed the crime, returned the money 

that he had kept, and cooperated with authorities. Under 

the definition of "thoughtless" adopted by the District 

Court, Russell would have been ineligible for an aberrant 

behavior departure because he undoubtedly had some 

opportunity, though perhaps not very long, to contemplate 

whether or not to keep the bank's money. 

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

not require sentencing courts to literally determine whether 

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

think about his criminal conduct. The answer to that 

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

generally whether the defendant's crime was the product of 

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

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

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

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

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

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

isolated assault" could be considered aberrant behavior, 

but not a subsequent effort to conceal the offense by 

coercing a witness to give false testimony). Applying that 

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

plan the murder, the entire episode took place over the 

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

confessed to the crime within minutes of its commission 

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

hold that the District Court had the discretion to depart 

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

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

departure was an error of law necessitating a remand.3 

The majority endorses the District Court's holding that 

Paster is not eligible for an aberrant behavior departure 

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

particular, the majority relies on the District Court's 

observations that Paster had time in the minutes preceding 

the murder to think about his actions, and that Paster 

stabbed his wife so many times that he must have been 

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

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

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

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

the commission of a crime is deemed not to have acted 

aberrantly, then the departure will only be available to that 

minuscule class of defendants who are liable for crimes 

committed by involuntary reflex, and perhaps also to those 

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

Surely this is not what the Sentencing Commission or the 

Marcello panel intended when they recognized that "single 

acts of aberrant behavior" may justify a downward 

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

That Paster may or may not have thought about whether to 

murder his wife in the moments before the stabbing also 

should not be a sufficient basis to disqualify him for an 

aberrant behavior departure. The murder of Dr. Bostrom, 

while undoubtedly a brutal and heinous crime, was 

certainly not the product of any meaningful deliberation or 

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

_________________________________________________________________ 

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

"no 

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

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

that 

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

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

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

case applied to the principles announced in Marcello do not qualify 

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

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

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

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

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

credulity. 

 30 
indications are that Paster acted spontaneously and in 

response to a series of deeply painful revelations from his 

wife. Under these circumstances, the majority's conclusion 

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

be justified by the most literal and wooden definition of that 

term. 

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

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

committed spontaneously and without prior planning 

merits a reduced sentence. If after analyzing the factual 

record, for example, the District Court concluded that the 

murder of Dr. Bostrom was the culmination of a longstanding pattern of domestic violence on the part of Paster, 

then a departure based on aberrant behavior would have 

obviously been inappropriate. A departure would have also 

been unwarranted if the District Court concluded that the 

lack of planning in this case was sufficiently accounted for 

by the base offense level for second-degree murder.

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

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

these issues. It summarily concluded that it had "no 

authority" under Marcello to depart because Paster's 

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

Because that conclusion was based on an erroneous and 

overly restrictive understanding of the legal standard 

governing an aberrant behavior departure, we should allow 

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

* * * 

Finally, I offer a brief comment concerning the District 

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

which nearly tripled the sentence that Paster received. 

Judge Oberdorfer has carefully identified the reasons why 

the structure of the Guidelines and the applicable case law 

render the magnitude of that departure unreasonable. I 

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

for those same reasons, the District Court should not again 

impose a nine-level upward departure. While Judge Sloviter 

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

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

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

 now throw away the guidelines." The guidelines are 

 31 
 designed to bring openness and consistency to 

 sentencing, to even out the effects of different judges' 

 perspectives on desert and deterrence. . . . Unless there 

 is discipline in determining the amount of departure, 

 however, sentencing disparity will reappear.

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

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

departure imposed in this case is emblematic of the very 

sentencing disparities that the Guidelines were designed to 

counter. It should not be repeated. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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