United States v. Stephen N. Kalb , 105 F.3d 426 ( 1997 )

LOKEN, Circuit Judge.

■ After Stephen Kalb pleaded guilty to participating in a methamphetamine manufacturing' conspiracy, the district court granted a downward sentencing departure under U.S.S.G. § 5K2.0. The government appeals, arguing that Kalb’s conduct was not a “single act of aberrant behavior” warranting the departure. Concluding that this is no longer the most relevant inquiry, we remand for further consideration in light of the Supreme Court’s recent decision in Koon v. United States, — U.S. -, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

I.

In 1990, William Thomas, a methamphetamine distributor, moved to California and became friends with Kalb, a part-time chemistry student. Thomas provided Kalb with chemicals and equipment to make methamphetamine, but Kalb abandoned the project short of completion and returned the chemicals and equipment to Thomas, who moved to 'Iowa later that year. In November 1992, Thomas asked Kalb to acquire some hydriodic acid, a chemical used in manufacturing methamphetamine that could be legally purchased in California, but not in Iowa. Kalb shipped six gallons of hydriodic acid to Thomas in Iowa, knowing it would be used to manufacture methamphetamine. Thomas paid Kalb $1,000. Two months later, police arrested Thomas and seized contraband at his methamphetamine laboratory, including the remaining hydriodic acid purchased by Kalb. Thomas agreed to cooperate with authorities and engaged Kalb in a series of taped telephone conversations in which Thomas encouraged Kalb to help manufacture more methamphetamine. When Thomas offered $50,000 in profits, Kalb agreed to purchase chemicals, drive them from California to Iowa, and help Thomas manufacture another batch. Kalb was arrested as he arrived in Iowa with the precursor chemicals.

Kalb’s March 1993 plea agreement stated that he could receive a downward departure if he substantially assisted law enforcement authorities. See U.S.S.G. § 5K1.1. The Pre-sentence Report, issued in June 1993 prior to entry of the plea, attributed to Kalb 5.29 kilograms of methamphetamine — one-quarter kilogram manufactured for Thomas in 1990 plus six kilograms that could have been produced from the hydriodic acid shipped to Thomas in November 1992, reduced by an 85% purity factor. The district court conducted a plea and sentencing hearing in September 1995. After accepting Kalb’s guilty plea, the court determined that his guidelines sentencing range is 108 to 135 months in prison, and that he is subject to a mandatory minimum ten-year sentence. See 21 U.S.C. §§ 841(b)(1)(A) and 846. Despite the two year delay between Kalb’s plea agreement and his guilty plea and sentencing, the government made no substantial assistance motion. However, Kalb moved for a downward departure for aberrant behavior. The district court granted a § 5K2.0 departure, explaining:

[T]he defendant did get involved with Mr. Thomas [in 1990] and started to cook a batch of methamphetamine but abandoned the project; two years later did sell hy-driodic acid, which ... in essence was the single act of [aberrant] behavior, and then ... the final activity ... was ... part of the conspiracy [but] does not take the case out of the situation that allows for a departure [because] Mr. Kalb at least initially was reluctant to get reinvolved, and it was after the offer of the $50,000 that he decided that he would get further involved in the criminal activity.

The court further found that Kalb is eligible for a departure from his mandatory minimum sentence, a finding the government does not challenge. See 18 U.S.C. § 3553(f). Kalb was sentenced to sixty months in.prison plus five years of supervised, release. The government-appeals the grant of a § 5K2.0 downward departure.

II.

A district court may depart (that is, impose a sentence outside the applicable guidelines sentencing range) if there exists an "aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b). Departure is only appropriate in the atypical case, "one to which a particular guideline linguistically applies but where the conduct significantly differs from the norm.. . ." U.S.S.G. Ch.1, Pt.A, intro, comment. 4(b), quoted in Koon, - U.S. at , 116 S.Ct. at 2044, and in United States v. Lewis, 90 F.3d 302, 304 (8th Cir.1996).

In Koon, the Supreme Court considered a case of great notoriety in which the district court had granted an eight-level downward departure based upon five different factors, and the court of appeals had reyersed. The Supreme Court first defined the proper analysis for making departure decisions. Agreeing with then-Chief Judge Breyer's decision in United States v. Rivera~, 994 F.2d 942 (1st Cir.1993), the Court explained that a sentencing court must first ask, ``~What features of this case, potentially, take it outside the Guidelines' ``heartland' and make of it a special, or unusual, case?" The Court further explained that the initial inquiry is whether each special feature is a "prohibited," "encouraged," "discouraged," or "unmentioned" departure factor in the G~uidelines. Having made that determination, the sentencing court must then analyze the potential departure factors, singly and in combination, in the following manner:

If the special factor is a forbidden factor [that is, one that the Sentencing Commission has declared may never be the basis of a departure], 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." 1995 U.S.S.G. ch.1, pt.A.

- U.S. at -, 116 S.Ct. at 2045 (citations to Rivera omitted). The Supreme Court unanimously adopted this analytical approach to departures. The dissenters in Koon, including Justice Breyer, the author of Rivera~, disagreed only with its application to the facts in Koon.

Turning to the question of appellate review of departure decisions, the Court in Koon adopted the "unitary abuse-of-discretion standard." See Cooter & Cell v. Hartmarx Corp., 496 U.S. 384, 408, 110 S.Ct. 2447, 2459, 110 L.Ed.2d 359 (1990). Under this standard, a court of appeals need not defer to the district court's determination of an issue of law, such as "whether a factor is a permissible basis for departure under any circumstances." But the district court is entitled to deference on most departure issues, including the critical issues of "[w]hether a given factor is present to a degree not adequately considered by the Commission, or whether a discouraged factor nonetheless justifies departure because it is present in some unusual or exceptional way." - U.S. at - , 116 S.Ct. at 2047-48. The Court concluded: "Discretion is reserved within the Sentencing Guidelines and re-~lected by the stendard of appellate review we adopt." Id. at -, 116 S.Ct. at 2053.

III.

On this appeal, the parties primarily debate whether Kalb's offense was a "single act of aberrant behavior" as that term has been defined in prior Eighth Circuit departure cases. The phrase "single acts of aberrant behavior" originates with the Sentencing Commission. In discussing the general subject of probation and split sentences, the Commission stated that it "has not dealt with the single acts of aberrant behavior that stifi may justify probation at higher offense levels through departures." U.S.S.G. Ch.1, PtA, intro, comment. (4)(d). However, in applying that legitimate potential departure factor, our prior cases, and the district court hi this case, have not acèurately anticipated the Koon-mandated mode of analysis in a number of significant respects.

First, the Sentencing Commission only mentioned "single acts of aberrant behavior" in discussing probation and split sentences. Thus, it is an encouraged factor only when considering crimes in which the offender might be eligible, with a departure, for those modest forms of punishment. There is nothing in this specific comment, or its context within the Guidelines, that suggests the Commission intended to encourage aberrant behavior departures for murderers, drug dealers, and bank robbers, the serious offenses at issue in our aberrant behavior departure decisions in United States v. Weise, 89 F.3d 502, 507 (8th Cir.1996), United States v. Jenkins, 78 F.3d 1283, 1291 (8th Cir.1996), United States v. Premachandra, 32 F.3d 346, 349 (8th Cir.1994), and United States v. Bieri, 21 F.3d 811, 818-19 (8th Cir.), cent. denied, - U.S. -, 115 S.Ct. 208, 130 L.Ed.2d 138 (1994). Under Koon, for a serious crime like Kaib's that cannot warrant probation, a "single act of aberrant behavior" is an unmentioned, not an encouraged departure factor.¹

Second, our prior cases suggest that the only "aberrant behavior" which may be considered fo~r departure purposes is the "single act of aberrant behavior" mentioned in the introductory comment about probation and split sentences.² But see United States v. Simpson, 7 F.3d 813, 820 (8th Cir.1993) (more than one act might "qualif[y] as aberrant behavior warranting a departure"). However, the Guidelines "place essentially no limit on the number of potential factors that may warrant departure." Koon, - U.S. at 116 S.Ct. at 2050, quoting Burns v. United States, 501 U.S. 129, 136-137, 111 S.Ct. 2182, 2186, 115 L.Ed.2d 123 (1991). The Commission's introductory comment about single acts of aberrant behavior does not appear in its general discussion of departures. In that discussion, the Commission specifically states that it "does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case." U.S.S.G. Ch.1, Pt.A, intro, comment. (4)(b). Thus, under Koon, "aberrant behavior" in general is an unmentioned factor, and the task for the sentencing court is to analyze how and why specific conduct is allegedly aberrant, and whether the Guidelines adequately take into account aspects of defendant's conduct that are in fact aberrant.

Third, when dealing with an unmentioned potential departure factor such as alleged aberrant behavior, Koon instructs the sentencing court to consider the "structure and theory of both relevant individual guidelines and the Guidelines taken as a whole." - U.S. at , 116 S.Ct. at 2045 (citation omitted). In this case, we cannot tell from the sentencing record what aspects of Kaib's behavior the district court considered "aberrant," and why that particular kind of aberrant behavior falls outside the heartland of the guidelines applicable in de-terinining Kalb's sentencing range. For example, the court stated that Kalb's shipping of six gallons of a precursor chemical was a single aberrant act, but it did not compare this single act to those of other peripheral drug conspirators, such as cOcaine and heroin couriers. The court considered Kalb less culpable in 1993 because he was enticed by the promise of exorbitant drug profits, but it did not explain why this made Kalb an “aberrational” drug conspirator. And the court suggested that Kalb was merely a peripheral supplier like the defendant in United States v. Posters ‘N’ Things Ltd., 969 F.2d 652, 663 (8th Cir.1992), aff'd on other grounds, 511 U.S. 513, 114 S.Ct. 1747, 128 L.Ed.2d 539 (1994), but it did not analyze the factual distinctions between the two cases to determine whether this case, too, is outside the heartland.

At sentencing, the parties and the district court focused primarily on whether Kalb’s conduct fit the definition of a “single act of aberrant behavior” adopted in prior Eighth Circuit eases. This is only the beginning of the departure analysis Koon now requires, an analysis which, when properly conducted, is entitled to deferential review on appeal. Accordingly, the judgment of the district court is reversed and the case is remanded for resentencing in accordance with this opinion.

1 . The contrary conclusion expressed in United States v. Withraw, 85 F.3d 527, 530 (11th Cir.1996), was not essential to the court's deáision to affirm. More importantly, Withrow was decided the same day as Koon and did not employ the analysis mandated by Koon.

2 . These cases narrowly construed that phrase as meaning "spontaneous and seemingly thoughtless" criminal conduct. United States v. Garlich, 951 F.2d 161, 164 (8th Cir.1991). The question after Koon is whether ahy other kind of "aberrant behavior" may ever warrant a departure.