United States Court of Appeals

For the First Circuit

No. 01-1446

UNITED STATES OF AMERICA,

Appellee,

v.

ALDRIN DIAZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

 Torruella, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lipez, Circuit Judge.

Eileen F. Shapiro, by Appointment of the Court, for appellant.

Donald C. Lockhart, Assistant U.S. Attorney, with whom

Stephanie S. Browne, Assistant U.S. Attorney, and Margaret E.

Curran, United States Attorney, were on brief, for appellee.

March 26, 2002
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COFFIN, Senior Circuit Judge. Appellant Aldrin Diaz seeks

reversal of his conviction for being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). He asserts that the

district court committed plain error by placing the burden on him

to prove his defense of justification. He alternatively challenges

the district court's decision to depart upward from the Sentencing

Guidelines. We find no plain error in the instruction, but detect

flaws in the sentencing that require reconsideration of the

departure. We therefore affirm the conviction, vacate the term of

imprisonment, and remand for re-sentencing. 

I. Factual Background

Although certain particulars of the episode underlying this

appeal are disputed, the differences are largely irrelevant to the

issues before us. The essential facts, as the jury could have

found them, are as follows. In the early morning hours of January

28, 2000, appellant and his girlfriend, Christa Calder, dropped off

two friends at a fast-food restaurant in Providence, Rhode Island,

so they could use the restroom. When appellant and Calder drove

back to the restaurant a few minutes later, they found the two

women, Brenda Ruiz and Jenny Vazquez, involved in a dispute with

two other women in the restaurant's vestibule. Appellant stepped

from the car and placed himself between the two pairs of women.

Ruiz reached around him and struck one of the other women,

Stephanie Zoglio, in the face. Ruiz held a broken glass and also

may have possessed a pen with a concealed knife inside it. Zoglio
1 The objects apparently were a bottle and a barbell.

2 Appellant testified that he had cocked the gun after he saw

Pemberton reach for a weapon. 

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may have possessed a box cutter, although appellant testified that

he never saw it.

Unsuccessful in his efforts to separate the combatants,

appellant moved back toward Calder's car. Shortly thereafter,

someone -- perhaps the fourth woman, Diana Villafane -- threw two

objects that hit the car's hood.1 At that point, appellant walked

over to Villafane and shoved her, causing her to fall backward. A

friend of Villafane's, Wayne Pemberton, responded by rushing at

appellant. During the ensuing struggle, Pemberton pushed appellant

onto the hood of Calder's car and fell onto the hood himself.

Appellant rolled onto the ground and yelled to Calder for her gun.

Calder retrieved the loaded gun from the car's glove compartment

and handed it to him. Appellant waved the gun at the crowd that

had gathered, yelling several times "you better run." Pemberton

slipped behind a nearby truck, while making motions suggesting that

he, too, was reaching for a weapon, although he did not have one.

Calder testified that the scene was chaotic, the noise level was

loud, and both Ruiz and Vazquez had blood on them.

Appellant, Calder, and their two friends got back into the

car, with appellant at the wheel while holding the gun.2 Before he

could drive off, uniformed Providence police officers arrived and

directed appellant to drop the gun. He tossed it onto Calder's

lap, complied with the officers' instructions to get on the ground,
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and began crawling toward the police. At about the same time,

Cornell Young, an off-duty police officer in plain clothes, emerged

from the restaurant with his gun drawn. The uniformed officers --

apparently not recognizing Young as a fellow officer -- also

ordered him to drop his weapon. He was fatally shot when he failed

to comply.

The gun wielded by appellant was purchased by Calder in Gray,

Maine, in November 1999. She testified that appellant had pointed

the gun at her during an argument in their apartment on January 26,

2000 -- two days before the restaurant incident -- and also had

taken the gun to his mother's house on or about January 7.

At trial, appellant sought to justify his use of the weapon

during the fracas at the restaurant as an attempt to break up the

escalating fight. He testified that he felt surrounded, dazed from

having been punched in the face, and in fear for his life because

he thought he saw Pemberton reaching for a gun. The district court

charged the jury that appellant had asserted a defense of

justification and that he was obliged to prove the defense by a

fair preponderance of the evidence. When discussing the issue at

the charging conference, the judge specifically referred to

conflicting precedent on whether the defendant or government bore

the burden of proof on the justification defense, concluding that

circuit and Supreme Court precedent required that affirmative

defenses be proven by the defendant. Neither the government nor

defense counsel objected to the instruction, either at the charging

conference or after the actual charge was given to the jury.
3 The four-part test also requires a showing that the error

affected substantial rights and "so seriously impaired the

fairness, integrity, or public reputation of the proceedings as to

threaten a miscarriage of justice." Paniagua-Ramos, 252 F.3d at

246.

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Appellant was sentenced to the statutory maximum of 120 months

in prison. The district court relied on three separate guidelines

provisions for a four-level departure in the base offense level,

which represented an increase of at least thirty-three months in

appellant's sentence. 

On appeal, appellant first claims that the district court

erred in placing the burden on him to prove justification. He

acknowledges that, having failed to object at trial to the

instruction, he must demonstrate that the error was plain. If he

fails to meet this standard, he seeks review of his sentence,

asserting that the district court had no legitimate basis to depart

upward from the guidelines. We address these issues in sequence.

II. Justification and the Burden of Proof

Appellant's effort to set aside his conviction based on the

district court's justification instruction is severely hampered by

his failure to interpose a contemporaneous objection. To vault the

high hurdle imposed by the plain error standard, appellant must

demonstrate that an error occurred and that it was clear or

obvious. United States v. Olano, 507 U.S. 725, 732 (1993); United

States v. Paniagua-Ramos, 251 F.3d 242, 246 (lst Cir. 2001).3 To

obtain relief from his conviction, therefore, appellant must show

not only that the justification instruction was incorrect but also
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that it was obviously so. The state of the law forecloses such a

conclusion.

Three circuit courts have explicitly considered whether the

prosecution or defense bears the burden of proof on a justification

defense to a felon-in-possession charge, and they have reached

different conclusions. See United States v. Dodd, 225 F.3d 340,

350 (3d Cir. 2000); United States v. Deleveaux, 205 F.3d 1292, 1300

(11th Cir. 2000); United States v. Talbott, 78 F.3d 1183, 1186 (7th

Cir. 1996) (per curiam). The Third and Eleventh Circuits held that

the defendant must prove the defense by a preponderance of the

evidence, while the Seventh Circuit ruled that the government must

negate the defense beyond a reasonable doubt. If a circuit

conflict exists on a question, and the law is unsettled in the

circuit in which the appeal was taken, any error cannot be plain or

obvious. United States v. Gerrow, 232 F.3d 831, 835 (11th Cir.

2000); see United States v. Gilberg, 75 F.3d 15, 21-22 (lst Cir.

1996).

Appellant asserts that this sudden-death principle is

inapplicable here because First Circuit law is settled in his

favor. He invokes two decisions that involved a defense of duress

to drug charges, United States v. Arthurs, 73 F.3d 444, 448 (lst

Cir. 1996), and United States v. Amparo, 961 F.2d 288, 291 (lst

Cir. 1992). We held in Amparo that if the defendant produces

sufficient evidence to warrant a duress instruction, the government

must prove beyond a reasonable doubt that the defendant's criminal

acts were not in fact the product of duress. See 961 F.2d at 291.
4 For example, the Introductory Comment on the section

covering defenses states:

Except for the insanity defense, the defendant need only

meet a burden of production, in which event the burden of

persuasion is on the prosecution to negate the defense

beyond a reasonable doubt.

First Circuit Instructions § 5, intro. cmt.

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The same result was reached in Arthurs, in reliance on Amparo. See

73 F.3d at 448. Appellant cites, in addition, the First Circuit's

pattern jury instructions, which state that the government has the

burden of disproving the defenses of self-defense and duress once

they have been properly raised. First Circuit Pattern Criminal

Jury Instructions §§ 5.04 and 5.05 (1998) ("First Circuit

Instructions"). 

While these First Circuit authorities seem facially apropos to

appellant's position, closer scrutiny reveals their shortcomings.

The court in Amparo explicitly limited its holding on the

government's burden of disproving duress to those cases in which

"the charged crime requires mens rea," 961 F.2d at 291. In both

Amparo and Arthurs, the defendants were charged, inter alia, with

"knowingly or intentionally" possessing cocaine with the intent to

distribute it. The pattern jury instructions reflect a similar

limitation; although some portions of the instructions express a

broader proposition,4 the Comment to the provision on "Duress,"

§ 5.05, echoes the Amparo qualification that "[t]he burden of

persuasion remains with the government, at least if the charged

crime requires mens rea." This allocation of the burden is logical
5 Indeed, the Due Process Clause of the Fourteenth Amendment

requires the government to disprove beyond a reasonable doubt any

defenses that negate an element of the charged offense. See

Patterson v. New York, 432 U.S. 197, 210 (1977). 

6 Both courts initially noted that there was no constitutional

bar to placing the burden on the defendant. See Dodd, 225 F.3d at

344; Deleveaux, 205 F.3d at 1298-99. Both also pointed to

Congress's intent to broadly prohibit possession of firearms by

convicted felons, see Dodd, 225 F.3d at 350; Deleveaux, 205 F.3d at

1300, and they recognized that the defendant "will usually be bestsituated to produce evidence relating to each element of this

affirmative defense," Deleveaux, 205 F.3d at 1300 (quoted in Dodd,

225 F.3d at 347, 350). The Third Circuit further observed that

placing the burden on the defendant was consistent with the common

law, which placed the burden on the defendant to prove all

affirmative defenses. See Dodd, 225 F.3d at 348.

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in light of the government's obligation to prove all elements of a

crime, including the specified criminal intent.5

Whether Amparo's articulation of the burden extends to a case

in which the only charge is possession of a firearm by a felon --

a strictly worded crime without a specific mens rea -- is at least

debatable in light of its qualifying language. Indeed, were we to

reach the merits, we think it problematic whether Amparo's holding

would survive in this different context. We particularly note the

thoughtful analyses of the Third and Eleventh circuits, which led

those courts to conclude that the burden to prove justification

constitutionally and pragmatically is properly placed on the

defendant in a felon-in-possession case. See Dodd, 225 F.3d at

343-350; Deleveaux, 205 F.3d at 1298-1301.6 It strikes us as good

sense to examine both the particular crime and the particular

defense at issue in assigning the burden of proof. See Dodd, 225

F.3d at 349 (noting the "diversity of analytical solutions that the

appellate courts have reached with respect to various affirmative
7 This calculation included a separate two-level enhancement

for obstruction of justice, bringing appellant's base offense level

to 20.

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defenses," and rejecting the argument that consistency required the

court to follow entrapment precedents that place the burden on the

government).

We need delve no further into the merits of the issue. What

we have said thus far suffices to show that the law is unsettled,

both within and outside the First Circuit, and appellant is

therefore unable to meet the plain error standard. Even if it were

error to place the burden of proving justification on appellant --

a proposition we doubt -- any such error was not plain.

Consequently, we affirm the judgment of conviction.

III. Sentencing Departures

The district court invoked three provisions of the Sentencing

Guidelines to increase appellant's sentence from the term specified

for his base offense level and criminal history category -- a range

of 70 to 87 months7 -- to the statutory maximum of 120 months.

This represented an upward departure of four levels. We review de

novo whether the district court utilized a proper basis for

departure, United States v. Chapman, 241 F.3d 57, 63 (1st Cir.

2001), but apply the clear error standard to the court's

determination that the circumstances "warrant[ed] the departure in

the case at hand," id. The extent of the departure will be upheld

as reasonable unless it reflects a manifest abuse of discretion.

United States v. Amirault, 224 F.3d 9, 14 (lst Cir. 2000).
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As we discuss below, the district court's erroneous reliance

on one basis for departure, combined with lack of advance notice of

its use of a second departure provision and the uncertain

sufficiency of the third provision as the sole basis for the

departure, requires that the case be remanded for re-sentencing.

We explain our conclusion by addressing each of the three relevant

provisions of the guidelines.

A. The Departure under U.S.S.G. § 4A1.3, p.s.

This provision allows a district court to depart from the

otherwise applicable sentencing range "[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 . . . ."

Appellant's criminal history score of 19 gave him six points more

than the threshold for Criminal History Category VI, the highest

category in the guidelines. In such a case, a court seeking to

impose a sentence appropriate for the defendant's record may depart

from the guideline range by moving down the sentencing table to a

higher offense level. U.S.S.G § 4A1.3, p.s.; see Chapman, 241 F.3d

at 63. In other words, when the criminal history category cannot

be adjusted upward to account for a defendant's score because he

already is in the top category, a court "may instead adjust upward

the offense level in order to arrive at an appropriate sentence."

Chapman, 241 F.3d at 63. Based on this provision, the district

court moved two levels from offense level 20 to offense level 22,
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which provided a sentencing range of 84 to 105 months, an increase

of eighteen months at the maximum end of the range.

Appellant challenges this departure on two fronts. First, he

contends that his criminal history was not sufficiently "egregious"

to trigger § 4A1.3. See U.S.S.G. § 4A1.3, p.s. (allowing departure

in the case of "an egregious, serious criminal record"). Second,

he argues that he is entitled to a remand because he received no

notice that the district court intended to depart on this basis --

which, as acknowledged by the government, was a violation of

U.S.S.G. § 6A1.3(a), p.s. and Fed. R. Crim. P. 32(c)(1). See Burns

v. United States, 501 U.S. 129, 138-39 (1991); United States v.

Martin, 221 F.3d 52, 55-56 (lst Cir. 2000). He asserts that the

omission was not harmless, as the lack of notice deprived him of

the opportunity to fully demonstrate why this departure was

unwarranted. He further argues that the record fails to show that

the court would have imposed a four-level upward departure even if

§ 4A1.3 were not considered.

We need not evaluate the egregiousness of appellant's record

because we find his notice argument to be dispositive. The court

departed a total of four levels based on three provisions. Two

levels were attributed explicitly to § 4A1.3 -- the basis for which

appellant received no notice. The other departures were not

assigned any particular increase; the court simply moved up to the

statutory maximum in reliance on the two additional provisions. To

find harmless error, as indeed the government argues, we would have

to conclude that the court inevitably would have departed upward by
8 In United States v. Jackson, 32 F.3d 1101, 1110 (7th Cir.

1994), the court noted that the harmless error doctrine in lack-ofnotice cases "requires that we decide whether the same sentence

would have been imposed if the district court either: (1) had not

relied on the factor for which no notice was given, or (2) had

given adequate notice." Appellant's criminal background was not so

extensive or serious that we can say that the court certainly would

have imposed the departure, regardless of a fully prepared

objection from appellant. Cf. Chapman, 241 F.3d at 64 (thirty-six

criminal history points deemed "extreme," along with immediate

recidivism and violent crimes); United States v. McKinley, 84 F.3d

904, 910-11 (7th Cir. 1996) (forty points warranted departure);

United States v. Carillo-Alvarez, 3 F.3d 316, 320-23 (9th Cir.

1993) (nineteen points -- the same number as appellant --

insufficient to support departure). We thus must consider whether

the court would have imposed the same sentence without reliance on

U.S.S.G. § 4A1.3. 

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four levels based solely on those two other factors. See Williams

v. United States, 503 U.S. 193, 204 (1992) ("[A] remand is

appropriate unless the reviewing court concludes, on the record as

a whole . . . that the error did not affect the district court's

selection of the sentence imposed.").8 One of those provisions,

however, we find inapplicable. See Section B infra. We cannot say

with assurance, based on the factual circumstances, that the court

would have ordered the same upward departure in reliance solely on

the other. See Section C infra. Consequently, we must remand for

re-sentencing.

 B. The Departure under U.S.S.G. § 2K2.1

This provision, which governs firearms offenses, establishes

a range of penalties depending upon the particulars of the crime

and the defendant's criminal background. Application Note 16 to §

2K2.1 states that an upward departure may be warranted in four

alternative circumstances: (1) the number of firearms significantly

exceeded fifty; (2) the offense involved multiple military assault
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type weapons or similarly destructive guns and other devices; (3)

the offense involved large quantities of armor-piercing ammunition,

or (4) "the offense posed a substantial risk of death or bodily

injury to multiple individuals." U.S.S.G. § 2K2.1, cmt. n.16; see

generally United States v. Diaz-Martinez, 71 F.3d 946, 952-53 (lst

Cir. 1995).

The district court concluded that a departure was appropriate

under the fourth clause of Note 16 because appellant "had a firearm

cocked and pointed, thus posing a substantial risk of death or

bodily injury to a multitude of individuals who were out in front

of that restaurant that night." The judge noted that "[j]ust a

little action on the trigger would have caused the bullet to be

ejected toward a crowd of people and someone could have been

killed."

Appellant asserts that the district court improperly invoked

Application Note 16 for two reasons. First, he contends that his

circumstances do not fit into the category of uniquely dangerous

firearms crimes covered by Note 16. Each of the first three

clauses reflects a concern about extraordinary threats to public

safety based on either the quantity or nature of the firearms at

issue. The fourth clause, he maintains, reflects a similar concern

that is inapplicable to his brandishing of a single .22-caliber

pistol capable of firing only one bullet at a time. Second,

appellant argues that the threat posed by his display of the gun

already was taken into account in computing his sentence. The

court imposed a four-level upward adjustment in his offense level
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under § 2K2.1(b)(5), which provides for such an increase when a

firearm was used or possessed in connection with another felony

offense. The district court explained the basis for this upward

adjustment as follows:

He clearly possessed this firearm in connection with

another felony offense, in fact, multiple felony

offenses. He assaulted a number of people with this

firearm by holding this crowd at bay with the firearm and

cocking the firearm ready to fire. It's a wonder

somebody wasn't killed at that point.

Because the court's expressed rationale for the four-level

adjustment was essentially the same as his reason for imposing a

departure under Note 16, appellant argues that the departure

constituted impermissible double-counting.

We are persuaded that the court's use of Note 16 as a basis

for departure was in error. We agree with appellant that clause

four of the Note, when read in context with the three provisions

that precede it, is reasonably interpreted to authorize departure

for conduct that is dangerous to an extraordinary degree. The

other prerequisites of Note 16 -- firearms exceeding fifty in

number, use of military assault type weapons, or large quantities

of armor-piercing ammunition -- indicate to us an intent that the

threat to multiple individuals of death or bodily injury be more

obvious and potent than the present record reveals. Here, the

court noted the crowd and observed that "someone could have been

killed" had defendant discharged the cocked weapon, but we conclude

that brandishing a single small weapon in a single episode, with no

evidence of an intent to fire, is insufficient to support a

departure aimed at punishing conduct that puts multiple individuals
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at substantial risk of injury or death. By contrast, in DiazMartinez, 71 F.3d at 952-53, we affirmed a Note 16 departure where

the defendant had engaged in a shootout in a congested shopping

center parking lot and had rammed his car into another vehicle.

Surrounding vehicles were riddled with bullet holes. See also

United States v. Brunet, 178 F. Supp. 2d 342, 344-45 (S.D.N.Y.),

aff'd, 275 F.3d 215 (2d Cir. 2001) (applying Note 16(4) where

agents retrieved, inter alia, a block of explosives that could have

destroyed several buildings if detonated); United States v. Alers,

852 F. Supp. 310, 314-16 (D.N.J.), aff'd, 40 F.3d 1241 (3d Cir.

1994) (applying Note 16(4) where defendant caused more than 400

guns to be distributed in the drug underworld).

Thus, even if the reckless brandishing of this type of loaded

handgun could in other circumstances support use of Note 16(4), the

provision's applicability to a limited category of unusually

dangerous firearms crimes renders it inapposite here. Although

some increase beyond the standard sentence for possession of a

firearm by a felon was warranted based on the risk posed by

appellant's reckless conduct, Note 16(4) was not in these

circumstances an available path to reach that result. The court

took advantage of an appropriate alternative when it imposed the

four-level adjustment under § 2K2.1(b)(5). To notch it up again

pursuant to Note 16 would overstate the severity of appellant's

criminal activity by equating it with the extraordinarily dangerous

conduct reflected in the other subsections of Note 16. We
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therefore conclude that the departure under Note 16 of § 2K2.1 was

improper.

C. The Departure under § 5K2.1, p.s.

This provision of the guidelines is a policy statement

providing for an upward departure when death results from the

defendant's criminal activity. Among the factors to be considered

in evaluating whether such a departure is warranted are (1) the

defendant's state of mind, (2) the degree of planning or

preparation, (3) whether multiple deaths resulted, and (4) the

means by which life was taken. U.S.S.G. § 5K2.1, p.s.

The district court found the provision applicable because

appellant

set in motion a whole series of events which ultimately

led to the death of Officer Young. If he hadn't drawn

that pistol, if he hadn't brandished that firearm,

Officer Young would be alive today. The police officers

would not have drawn their weapons. Officer Young

undoubtedly would not have drawn a weapon. This whole

tragedy would have been avoided. So there's a basis for

upward departure.

Appellant argues that Officer Young's death was an

unpredictable occurrence insufficiently related to his criminal

conduct to justify prolonging his term of imprisonment. He notes

that none of the factors cited in the policy statement weigh toward

departure -- not only was his offense conduct spontaneous, but it

also was unforeseeable that Officer Young would neither be

recognized by fellow officers nor respond to their command that he

drop his gun. In sum, he argues, the circumstances do not warrant

punishment based on the unfortunate, but completely chance, death

of the officer.
9 Although the evidence was not entirely consistent, most of

the witnesses testified that appellant pointed the gun in the air

when confronting the onlookers.

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Although we can agree that appellant's culpability is at the

low end of the spectrum contemplated by the policy statement, in

that he was an indirect cause of Officer Young's death, we are

unable to conclude that he is outside its scope. By using a

weapon, appellant invited weapon use by others. Unintended

consequences are often the result of reckless behavior, and while

he could not have anticipated the particular sequence of events,

appellant should have foreseen the possibility of serious harm as

a result of his waving a cocked and loaded gun at a crowd of

people. We see no basis for foreclosing departure under § 5K2.1

when a defendant puts into motion a chain of events that risks

serious injury or death, even when an intent to harm is entirely

absent and the defendant was not directly responsible for the

death. See United States v. Fortier, 242 F.3d 1224, 1232-33 (10th

Cir. 2001) (an increased sentence may be imposed for "harms that

were a 'reasonably foreseeable' consequence of a defendant's

conduct even where a defendant did not directly cause the specified

harm") (citation omitted).

Ameliorating factors may, of course, lead some trial judges to

refrain from a departure under § 5K2.1, and, in any event, such

factors should bear on the extent of the departure. Here, the

evidence supports appellant's claim that he had no intent to use

the gun other than as a show of force designed to permit his and

his friends' escape from an escalating confrontation.9 At about
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the time of the fatal shooting, appellant had released the weapon

and was complying with law enforcement orders that he get down on

the ground and move toward them. The death itself was an

unfortunate tragedy of mis-identification. Given these

circumstances, we think it unlikely that the court would have

departed upward four levels based solely on § 5K2.1. This is

particularly so because, as noted above, the risk of serious injury

from appellant's conduct already was reflected in the four-level

adjustment under § 2K2.1(b)(5).

The government suggests that the district court would have

increased appellant's sentence to the statutory maximum even

without reliance on the three separate departure provisions, citing

the judge's statement that he "would depart upward beyond the

statutory maximum if I had that power." At the time he made that

comment, however, the judge believed he had multiple grounds for

departure. Moreover, the statement reflects the court's

understandable frustration with appellant's allocution, in which

appellant denied any responsibility for Officer Young's death and

repeatedly ignored the judge's and marshal's directives that he

stop his rambling, offensive personal comments, which included

references to the judge's son and brother.

The record therefore does not permit us to conclude that the

lack of notice regarding § 4A1.3 and the error in applying Note 16

of § 2K2.1 were harmless. With the one valid ground of departure

having limited force in the particular circumstances, the sentence
10 We note that the court's signed judgment states that the

"Total Offense Level" is 20 and lists only Note 16 of § 2K2.1 and

§ 5K2.1 as the bases for departure -- apparently omitting the twolevel departure based on § 4A1.3, the provision for which appellant

lacked notice. Neither appellant nor the government address the

seeming discrepancy, and because both assume that the sentence

reflected reliance on that provision, we do likewise. In any

event, the lack of clarity further confirms the need for a remand.

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inevitably reflects reliance on the other two provisions. A remand

for re-sentencing is required.10

IV. Conclusion

We affirm appellant's conviction, rejecting his claim that the

district court committed plain error by instructing the jury that

he bore the burden of proving that his firearm possession was

justified. The circuits are split on the burden of proving

justification in a felon-in-possession case, and First Circuit law

on that particular question is unsettled. The case must be

remanded to the district court for re-sentencing, however, because

two of three provisions on which the court based an upward

departure were utilized improperly.

The judgment of conviction is affirmed, the sentence is

vacated, and the case is remanded for re-sentencing.