First Circuit Standard for Booker Remand on Downward Departure

The First Circuit's opinion in United States v. Heldeman (No. 04-1915) (circuit website here) adopts a low threshold for the Court of Appeals to remand for resentencing when the defendant claims the district court might have granted a downward departure but for the mandatory nature of the Sentencing Guidelines.  Dr. Marvin Heldeman was convicted of conspiracy, health care fraud, and drug distribution for writing prescriptions for steroids and Oxycodone for patients he had never seen; his business card listed him as "Dr. Marvin, The Bodybuilder's Friend" -- no hiding the ball there.  Heldeman sought a downward departure on a number of grounds, including his advanced age (72), medical problems, and that his unlawful activities were an exception to an otherwise legal medical practice (no mention here of the business card).  The district judge found these to be "legitimate" and "somewhat mitigating" but denied the departure because they were discouraged factors and insufficient to take him outside the "heartland" of the Guidelines.  In remanding for resentencing, the First Circuit addressed the threshold showing to send the case back to the district court for reconsideration of a downward departure:

[W]e are inclined not to be overly demanding as to proof of probability where, either in the existing record or by plausible proffer, there is reasonable indication that the district judge might well have reached a different result under advisory guidelines. After all, it will be easy enough for the district judge on remand to say no with a minimum expenditure of effort if the sentence imposed under the pre-Booker guidelines regime is also the one that the judge would have imposed under the more relaxed post-Booker framework.

Does a "plausible proffer" mean that a decent argument that the district court might have granted a downward departure is sufficient, even without any reference by the district court about its inclination to grant a departure?  If so, then the issue for appellate counsel is really one of presenting the grounds for a possible departure and persuading the Court of Appeals that it is a case that is at least strong enough to get another chance. (ph)