PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4405

DONALD REECE BROCK,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
N. Carlton Tilley, Jr., District Judge.
(CR-95-83)

Argued: January 29, 1997

Decided: February 28, 1997

Before RUSSELL and WILKINS, Circuit Judges, and HERLONG,
United States District Judge for the District of South Carolina,
sitting by designation.

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Vacated and remanded for resentencing by published opinion. Judge
Wilkins wrote the opinion, in which Judge Russell and Judge Herlong
joined.

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COUNSEL

ARGUED: Eric David Placke, Assistant Federal Public Defender,
Greensboro, North Carolina, for Appellant. Scott Patrick Mebane,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee. ON BRIEF: William E. Martin, Federal Public Defender,
Greensboro, North Carolina, for Appellant. Walter C. Holton, Jr.,
United States Attorney, Greensboro, North Carolina, for Appellee.

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OPINION

WILKINS, Circuit Judge:

Donald Reece Brock appeals the sentence imposed by the district
court following his plea of guilty to two counts of credit card fraud,
see 18 U.S.C.A. § 1029(a)(2) (West Supp. 1996), maintaining that the
district court erred in refusing to depart downward based upon his
post-offense rehabilitation efforts. Because the district court believed
that it lacked the authority to depart, and because extraordinary or
exceptional efforts at rehabilitation could possibly constitute a proper
basis for consideration of a downward departure, we vacate the sen-
tence imposed and remand to permit the district court to consider
whether Brock's rehabilitation efforts were exceptional and, if so,
whether departure is warranted.

I.

The presentence report recommended that Brock's guideline range
was 12 to 18 months imprisonment and that no basis for departure
was present. Brock objected to this latter recommendation, asserting
that the district court should depart downward based upon his rehabil-
itation efforts. The district court indicated that if it were permitted to
do so, it would consider departing downward by one level to permit
Brock to maintain his employment while serving a portion of his sen-
tence in home detention and a portion in some other type of commu-
nity detention center. The district court, however, correctly
recognized that it was then bound by the decision of this court in
United States v. Van Dyke, 895 F.2d 984, 986-87 (4th Cir. 1990)
(holding that post-offense rehabilitation efforts may be considered for
an acceptance of responsibility adjustment, but may not be a mitigat-
ing circumstance providing a basis for downward departure), and
hence refused to depart, imposing a sentence of one year and one day
imprisonment. Brock appeals.1
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1 The district court stayed imposition of the sentence pending this
appeal.

                    2
II.

This court lacks authority to review a decision of a district court
not to depart from the applicable guideline range when that decision
rests upon a determination that a departure is not warranted. See
United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990); 18
U.S.C.A. § 3742(a), (b) (West 1985 & Supp. 1996). However, we
may review the decision of a district court not to depart when that
determination is grounded upon a belief that the court lacks the legal
authority to depart. See Bayerle, 898 F.2d at 31. Here, the district
court candidly revealed that its refusal to consider a departure was
because it believed that it was prohibited from doing so by the law
of this circuit. Thus, we may entertain this appeal and turn to address
its merits.

Congress has instructed that a district court must impose a sentence
within the range that results from the proper application of the guide-
lines "unless the court finds that there exists an aggravating or miti-
gating 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.A. § 3553(b) (West Supp. 1996). The parties
agree that when the district court imposed Brock's sentence, the law
of this circuit prohibited a departure based upon post-offense rehabili-
tation efforts. See Van Dyke, 895 F.2d at 986-87. In Van Dyke, we
held that post-offense rehabilitation efforts did not constitute a miti-
gating factor that was not adequately taken into consideration in the
guidelines and, thus, that this factor could not provide an appropriate
basis for departure. See id. We reasoned that the guidelines took post-
offense rehabilitation into account because the commentary to the
guidelines expressly instructed that such efforts be considered in
determining whether an adjustment to the offense level for acceptance
of responsibility should be awarded. See id.; U.S. Sentencing Guide-
lines Manual § 3E1.1, comment. (n.1(g)) (1995).

Following the imposition of Brock's sentence by the district court,
however, the Supreme Court issued its decision in Koon v. United
States, 116 S. Ct. 2035 (1996), which illuminated the analysis a court
must employ in assessing whether it may depart from the applicable
guideline range. The Court explained that when assessing whether a

                    3
potential basis for departure was adequately considered by the Com-
mission in formulating the guidelines, the correct inquiry necessarily
focuses on whether the factor is addressed by the guidelines, policy
statements, or official commentary and whether it is encompassed
within the heartland of situations to which the guidelines were
intended to apply. Id. at 2044-45; see also U.S.S.G. Ch. 1, Pt. A,
intro. comment. 4(b). Further, Koon rejected the reasoning that we
employed in Van Dyke and made clear that:

          [A] federal court's examination of whether a factor can ever
          be an appropriate basis for departure is limited to determin-
          ing whether the Commission has proscribed, as a categorical
          matter, consideration of the factor. If the answer to the ques-
          tion is no--as it will be most of the time--the sentencing
          court must determine whether the factor, as occurring in the
          particular circumstances, takes the case outside the heartland
          of the applicable [g]uideline.

Koon, 116 S. Ct. at 2051. Thus, the unmistakable teaching of Koon
is that only those factors on which the Commission has forbidden
reliance--e.g., drug or alcohol dependence or abuse (U.S.S.G.
§ 5H1.4, p.s.); race, sex, national origin, creed, religion, or socio-
economic status (U.S.S.G. § 5H1.10, p.s.); lack of youthful guidance
or similar circumstances indicating a disadvantaged upbringing
(U.S.S.G. § 5H1.12, p.s.); personal financial difficulties or economic
pressure on a trade or business (U.S.S.G. § 5K2.12, p.s.)--never may
provide an appropriate basis for departure. Koon , 116 S. Ct. at 2050-
51. All others potentially may provide a basis for departure under
appropriate circumstances. See id.

Read in isolation, the assertion by the Court in Koon that all factors
except those expressly prohibited by the Commission may furnish an
appropriate foundation for departure could be viewed as undermining
the sentencing guidelines and Congress' goal of eliminating unwar-
ranted disparity in the sentencing of similar offenders for similar
offenses. Read in conjunction with the deferential abuse-of-discretion
standard the Court announced was appropriate for reviewing depar-
ture decisions of the district courts, it might be argued that Koon
sounds the death knell for Congress' goal of consistency in sentenc-
ing. Such fears are unfounded because, obviously, this was not what

                    4
the Court intended, nor what will result, if the standards that the Court
established are properly applied. For in the same breath in which the
Court acknowledged that only those factors expressly forbidden by
the Commission may be excluded categorically as bases for departure,
the Court carefully affirmed that departures from the guidelines must
be the exception, not the rule. Indeed, the Court emphasized that in
order for a departure to be an appropriate exercise of the discretion
granted to a district court, the unique circumstances presented must
take the case out of the heartland of the applicable guideline and make
the situation one in which a sentence outside the guideline range
should result. See id. at 2044 (citing U.S.S.G. Ch. 1, Pt. A, intro. com-
ment. 4(b) for the proposition "that the Commission did not ade-
quately take into account cases that are, for one reason or another,
`unusual'"); id. ("`The Commission intend[ed] the sentencing courts
to treat each guideline as carving out a "heartland," a set of typical
cases embodying the conduct that each guideline describes.'" (quoting
U.S.S.G. Ch. 1, Pt. A., intro. comment. 4(b))); id. ("Atypical cases
were not adequately taken into consideration, and factors that may
make a case atypical provide potential bases for departure." (internal
quotation marks omitted)); id. at 2046 ("Before a departure is permit-
ted, certain aspects of the case must be found unusual enough for it
to fall outside the heartland of cases in the [g]uideline.").

When a factor has not been forbidden by the Commission--and it
is thus a potential basis for departure--in order to determine whether
that factor actually may support a departure, the court must ascertain
into which of the following categories the factor falls: (1) the factor
was encouraged by the Commission as a basis for departure and was
either (a) taken into account in the applicable guideline itself or (b)
not taken into account in the guideline; (2) the factor was discouraged
by the Commission as a basis for departure; or (3) the factor was
unmentioned by the Commission. See id. at 2045. Koon instructs that
different inquiries are germane depending upon which of these cate-
gories a factor falls into. Id.; See United States v. Rybicki, 96 F.3d
754, 757-58 (4th Cir. 1996); United States v. Hairston, 96 F.3d 102,
105-06 (4th Cir. 1996), cert. denied, 65 U.S.L.W. ___ (U.S. Feb. 18,
1997) (No. 96-944).

If a factor is one upon which the Commission encourages depar-
ture, and it is not taken into account by the applicable guideline, a

                     5
court may exercise its discretion and depart on that basis. See Koon,
116 S. Ct. at 2045; Rybicki, 96 F.3d at 757-58. If an encouraged factor
is taken into account in the applicable guideline, or if a factor is a dis-
couraged one, then departure is permissible "only if the factor is pres-
ent to an exceptional degree or in some other way makes the case
different from the ordinary case where the factor is present." Koon,
116 S. Ct. at 2045. Similarly, if a factor is neither encouraged nor dis-
couraged, but listed by the Commission as one appropriately consid-
ered in applying an adjustment to the guidelines, a court may depart
only if the factor is present to such an exceptional or extraordinary
degree that it removes the case from the heartland of situations to
which the guideline was fashioned to apply. See Hairston, 96 F.3d at
107. Finally, if a factor is one that is unmentioned by the guidelines,
a court must, taking into consideration "the`structure and theory of
both relevant individual guidelines and the [g]uidelines taken as a
whole,'" determine whether the circumstances presented are sufficient
to remove the case from the heartland of the applicable guideline.
Koon, 116 S. Ct. at 2045 (quoting United States v. Rivera, 994 F.2d
942, 949 (1st Cir. 1993)); see Rybicki, 96 F.3d at 758; Hairston, 96
F.3d at 106.

Applying these principles, it is clear that our holding in Van Dyke
that post-offense rehabilitation can never form a proper basis for
departure has been effectively overruled by Koon . The Sentencing
Commission has not expressly forbidden consideration of post-
offense rehabilitation efforts; thus, they potentially may serve as a
basis for departure. Because the acceptance of responsibility guideline
takes such efforts into account in determining a defendant's eligibility
for that adjustment, however, post-offense rehabilitation may provide
an appropriate ground for departure only when present to such an
exceptional degree that the situation cannot be considered typical of
those circumstances in which an acceptance of responsibility adjust-
ment is granted.

III.

The district court was governed by Van Dyke and did not have the

                     6
benefit of the Koon decision when it ruled. Therefore, we vacate
Brock's sentence and remand for further proceedings. 2

VACATED AND REMANDED FOR RESENTENCING
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2 Recognizing that it could not depart, the district court had no occasion
to set forth specific factual findings concerning what efforts on Brock's
part it considered exceptional enough to make the case atypical of those
situations in which the acceptance of responsibility adjustment usually
applies based on post-offense rehabilitation. We wish to emphasize the
importance of such factual findings to our appellate function if further
review of the sentence imposed on remand is required. Cf. United States
v. Harvey, 885 F.2d 181, 182-83 (4th Cir. 1989) (stressing the impor-
tance of express factual findings to the exercise of our appellate review).

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