                                 ___________

                                 No. 95-3342
                                 ___________

United States of America,             *
                                      *
     Plaintiff-Appellant,             *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * Northern District of Iowa.
Stephen N. Kalb,                      *
                                      *
     Defendant-Appellee.              *
                                 ___________

                   Submitted:    September 10, 1996

                        Filed:   January 28, 1997
                                 ___________

Before BOWMAN, BRIGHT, and LOKEN, Circuit Judges.
                               ___________


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, 116 S. Ct. 2035
(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 Presentence 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




                                                 -2-
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 hydriodic 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, 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




                                       -3-
of appeals had reversed.      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
Guidelines.   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.


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-




                                    -4-
discretion standard."   See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,
403 (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."       116 S. Ct. at 2047-48.   The Court
concluded:    "Discretion is reserved within the Sentencing Guidelines and
reflected by the standard of appellate review we adopt."      Id. 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 still
may justify probation at higher offense levels through departures."
U.S.S.G. Ch.1, Pt.A, intro. comment. (4)(d).       However, in applying that
legitimate potential departure factor, our prior cases, and the district
court in this case, have not accurately 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




                                    -5-
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.), cert.
denied, 115 S. Ct. 208 (1994).        Under Koon, for a serious crime like Kalb'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 for 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, 116 S. Ct. at 2050, quoting Burns v. United States, 501 U.S. 129,
136-137 (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




      1
      The contrary conclusion expressed in United States v.
Withrow, 85 F.3d 527, 530 (11th Cir. 1996), was not essential to
the court's decision 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 any other kind of "aberrant
behavior" may ever warrant a departure.

                                           -6-
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."      116 S. Ct. at 2045 (citation
omitted).   In this case, we cannot tell from the sentencing record what
aspects of Kalb's behavior the district court considered "aberrant," and
why that particular kind of aberrant behavior falls outside the heartland
of the guidelines applicable in determining 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 U.S. v. Posters `N' Things Ltd., 969 F.2d 652, 663 (8th Cir.
1992), aff'd on other grounds, 511 U.S. 513 (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 cases.        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.




                                   -7-
BRIGHT, Circuit Judge, dissenting.


I.    INTRODUCTION


      I respectfully dissent.    Federal judges, especially district court
judges, are dismayed at the impact of mandatory and guideline sentencing.
See United States v. Hiveley, 61 F.3d 1358, 1365 (8th Cir. 1995) (Bright,
J., concurring) (discussing federal judges’ dissatisfaction with sentencing
guidelines and citing Federal Judicial Center, Planning for the Future:
Results of a 1992 Federal Judicial Center Survey of United States Judges
(1994)).   These sentencing schemes essentially take the discretionary power
to determine the length of a defendant’s sentence away from Article III
judges and place it in the hands of prosecutors who control the charges
brought against a defendant.


      The Supreme Court in Koon v. United States, 116 S. Ct. 2035, 2046-47
(1996), however, recognized that judicial discretion plays a role in
sentencing and that sentences resulting from guideline departures are
appropriate in certain circumstances.        Koon sends a signal to appellate
courts to extend a greater measure of deference to district courts'
discretion in sentencing.      In this case, Judge Melloy, an experienced
jurist, made a fair and reasonable decision supported by adequate grounds
for departing.     We should affirm.


II.   DISCUSSION


      In Koon, the Supreme Court instructed appellate courts to accord
sentencing courts greater discretion in their decisions to depart from the
guidelines.    Koon, 116 S. Ct. at 2043 (recognizing abuse of discretion
rather than de novo standard of review); see also United States v. McNeil,
90 F.3d 298, 300-01 (8th Cir. 1996) (citing Koon).       The Court emphasized
that the Sentencing Guidelines “authorize[] district courts to depart in
cases that feature aggravating or mitigating circumstances of a kind or
degree not




                                       -8-
adequately taken into consideration by the Commission.”            Koon, 116 S. Ct.
at 2044.     Because the guidelines authorize a district court to depart, a
district court’s decision to depart is entitled to “substantial deference,
for it embodies the traditional exercise of discretion by a sentencing
court.”     Id. at 2046.   On appeal, therefore, this court must ask whether
the district court’s ground for departure “is a permissible basis for
departure under any circumstances,” and if so, whether the district court
abused its discretion by finding the factor “present to a degree not
adequately considered by the Commission.”        Id. at 2047.     In conducting our
review, we must recognize the district court’s institutional advantage in
assessing guidelines cases.       Id.


     My view of this case differs from the majority’s in four ways.
First, I believe aberrant behavior constitutes an encouraged factor, rather
than an unmentioned factor, according to the Sentencing Commission’s
comments.    Second, the district court satisfied the requirements laid out
in Koon.    Third, I believe Koon and United States v. McCarthy, 97 F.3d 1562
(8th Cir. 1996), demonstrate that the district court in this case did not
abuse its discretion and support affirming the sentence.                  Finally, I
believe     the   majority’s   opinion   may   lead   to   confusion   regarding   the
appropriate analysis for district courts to undertake when considering
whether a defendant’s conduct constitutes aberrant behavior justifying a
departure.


     A.       Aberrant Behavior Constitutes an Encouraged, Rather Than
              Unmentioned, Factor for District Courts to Consider under the
              Sentencing Guidelines.


     Although the majority’s opinion recognizes that the district court
relied on an appropriate factor for its departure, aberrant behavior, the
majority mischaracterizes aberrant behavior as an “unmentioned” factor
under the guidelines, rather than an “encouraged” factor.              Slip op. at 6.
According to Koon, a district




                                         -9-
court may depart from the guidelines based on an encouraged factor if the
court finds the applicable guideline did not take the factor into account.
Koon, 116 S. Ct. at 2045.    A district court may depart from the guidelines
based on an unmentioned factor, however, only after finding that “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.” Id.
(citation omitted).        Although I believe this court should affirm the
district court’s decision to depart under that characterization, I believe
characterizing aberrant behavior as an encouraged factor and analyzing the
district court’s decision accordingly would better maintain the integrity
of our analysis.


     The majority concludes that because the Commission “only mentioned
‘single acts of aberrant behavior’ in discussing probation and split
sentences . . . . it is an encouraged factor only when” the case concerns
the possibility of probation.       Slip op. at 5.        The majority goes on to
infer that aberrant behavior must be an unmentioned factor for all other
“serious offenses” because the Commission did not mention its inability to
deal with aberrant behavior elsewhere in its comments.                 Id.    Thus,
according to the majority’s analysis, if a district court relies on
aberrant   behavior   to   depart   downward   from   a   higher   offense   level’s
guideline range to sentence a defendant to probation, the guidelines
encourage the district court’s consideration of aberrant behavior.           If the
district court relies on aberrant behavior for departing downward from a
higher offense level’s guideline range to sentence a defendant to a shorter
prison term, however, the majority’s opinion favors treating aberrant
behavior as an unmentioned factor.


     I cannot agree with this result.          In my opinion, whether aberrant
behavior constitutes an encouraged or unmentioned factor should not turn
on the type of punishment imposed, but rather on the language and intent
of the Sentencing Commission.       Although not




                                       -10-
discussed in the Commission’s general discussion of departures, the
discussion in the probation setting acknowledges the Commission’s inability
to accommodate aberrant behavior in the guidelines as a whole:                  “The
Commission, of course, has not dealt with the single acts of aberrant
behavior that still may justify probation at higher offense levels through
departures.”    U.S.S.G. Ch.1, Pt.A, intro. comment. 4(d) (emphasis added).
The Commission’s inability to accommodate aberrant behavior in the context
of probation and split sentences is not diminished when the issue concerns
the length of the defendant’s prison term.


     In addition, the Commission intended aberrant behavior to be an
encouraged     factor,   even   for   serious   offenses,   because   it   expressly
recognized the possibility of departing downward from the prison terms at
“higher offense levels” to probation or split sentences.              Id.; see also
United States v. Withrow, 85 F.3d 527, 530 (11th Cir. 1996) (“All circuits
that have addressed and resolved the question . . . have concluded that
single acts of aberrant behavior were excluded from consideration in the
formulation of the guidelines and thus might justify sentences below the
guideline range even in cases where probation is not a viable option.”
(emphasis added) (citation omitted)).           Whether a district court departs
downward from the guidelines range to a shorter prison term, or departs
downward to probation or a split sentence in no way changes whether the
court relied on an encouraged or unmentioned factor.              Consequently, I
believe courts should treat aberrant behavior as an encouraged factor for
departures because the Commission acknowledged its inability to accommodate
aberrant behavior within the structure of the guidelines.


     B.      The District Court's         Opinion   Satisfies   the    Requirements
             Established in Koon.




                                        -11-
        At issue here is whether the district court abused its discretion by
determining that “the misconduct which occurred in the particular instance
suffices to make the case atypical,” keeping in mind the district court’s
“institutional advantage over appellate courts in making these sorts of
determinations [because] . . . they see so many more Guidelines cases than
appellate courts do.”            Koon, 116 S. Ct. at 2047.          The Supreme Court
recognized that the district court’s decision “is apt to vary” from case
to case because whether the misconduct makes the case atypical is a factual
matter.    Id.    Thus, given the district court’s institutional advantage and
the inherently factual nature of the inquiry, this court must accord the
district court’s decision substantial deference.             See id. at 2046.


        In this case, the district court supported its finding of aberrant
behavior on its findings that (1) Kalb began making methamphetamine under
Thomas’ direction, but stopped once he realized what he was making; (2)
Kalb sold a legal precursor chemical to Thomas (“the real gravamen” of his
offense);    and    (3)   Kalb   reluctantly     traveled   to    Iowa   with   chemistry
equipment only because Thomas lured him with the promise of $50,000.
(Appellant’s App. at 17-18 containing sentencing transcript).               The district
court also described Kalb’s case as sufficiently similar to United States
v. Posters ‘N’ Things, Ltd., 969 F.2d 652, 663 (8th Cir. 1992) (affirming
district court’s downward departure for low-level supplier of diluent
chemicals    in    drug   scheme    who   was    not   involved    in    manufacture   or
distribution of drugs), to justify the departure.           Appellant’s Appendix at
19.   In addition, the record includes testimonials from several members of
Kalb’s community attesting that his criminal conduct was out of character.
(See Appellee’s App. at 1-10).        I believe the reasons given by the district
court, its reliance on our decision in Posters ‘N’ Things, and the record
as a whole demonstrate that the district court exercised its discretion
appropriately.     The district court's opinion, in essence, is supported by
Koon.




                                          -12-
      Furthermore, according to Williams v. United States, 503 U.S. 193,
201-03 (1992), and United States v. Walters, 87 F.3d 663, 671 (5th Cir.
1996), remanding the case for resentencing is unnecessary if the district
court clearly intended to depart from the Guidelines and any ambiguity in
its reasoning would not result in a different sentence.                    Thus, assuming
arguendo that the district court’s explanation was less than thorough, I
believe the district court's decision to depart from the guidelines
contained clear and adequate support in the record for this court to affirm
the   district    court's     decision    without    remanding       the   case     for   more
particularized findings.


      C.     Precedent      Supports      Granting     District      Court     Substantial
             Deference and Affirming Departure.
      Remanding this case to the district court for a more detailed
explanation of its decision also appears inconsistent with the Supreme
Court’s disposition of a similar issue in Koon and this court’s decision
in United States v. McCarthy, 97 F.3d 1562 (8th Cir. 1996).                 When reviewing
the downward departures in Koon, the Supreme Court discussed the district
court’s reliance on “successive prosecutions” to justify its departure.
Koon, 116 S. Ct. at 2053.       Although “consideration of this factor could be
incongruous      with   the    dual      responsibilities       of    citizenship”         and
“[s]uccessive state and federal prosecutions do not violate the Double
Jeopardy Clause,” the Court ruled that the district court did not abuse its
discretion by departing downward.         Id.     (citations omitted).       The Court did
not remand the case for more extensive explanations of these findings even
though     the   district     court    never    delved   into     the      unique    factual
circumstances of the case or detailed how the case differed from typical
guidelines cases.       Instead, the district court merely stated that the
defendants had previously been acquitted of state charges for the same
conduct, and that “the successive state and federal prosecutions, though
legal, raise a specter of unfairness.” United




                                           -13-
States v. Koon, 833 F. Supp. 769, 786 (C.D. Cal. 1993); see also id. at
790.    In addition, the district court made a passing reference to the
“combined extraordinary circumstances of this case,” and the “unusual
circumstances of the underlying conduct” without further elaboration.     Id.
at 790-91.


       As discussed above, the district court in this case articulated its
reasons for finding aberrant behavior with support in the record.       First,
unlike the departure in Koon, consideration of the aberrant behavior does
not raise concerns about the dual responsibility of citizenship or other
federalism issues.     In addition, whereas the district court in Koon
supported    its   decision   with    unspecified   references   to   “unusual
circumstances,” the district court in Kalb’s case identified particular
facts in the record demonstrating the aberrant nature of Kalb’s conduct.
(See Appellant’s App. at 18-20).     As further support for its decision, the
district court noted that it found Kalb’s conduct analogous to that in
Posters ‘N’ Things.   Id. at 19-20.   Thus, the district court’s explanation
for its departure included more specificity than the district court
decision affirmed by the Supreme Court in Koon.


       Likewise, the Eighth Circuit recently affirmed an upward departure
reasoning that the district court was due substantial deference despite




                                      -14-
concerns about the appropriateness of the departure factors1.   In United
States v. McCarthy, 97 F.3d 1562,




     1
      Other circuits also uphold departures without remanding for
detailed or extensive explanations from the district court, thus
granting district courts the ability to appropriately exercise
their traditional discretion. See, e.g., United States v. Rioux,
97 F.3d 648, 662-63 (2d Cir. 1996) (noting that factors used to
support departure were “not ordinarily relevant,” but ruled that
the district court never abused its discretion by finding that
defendant’s case differed significantly from heartland cases);
United States v. Barajas-Nunez, 91 F.3d 826, 832 (6th Cir. 1996)
(“Although we believe that the district court’s findings . . . do
not support a lesser harms departure, . . . we cannot find that any
error . . . is plain, given . . . the deference owed to the
district court’s determination that the case falls outside a
guideline’s heartland.” (citing Koon, 116 S. Ct. at 2046-47));
United States v. Grandmaison, 77 F.3d 555, 563 (1st Cir. 1996)
(emphasizing importance of district court’s ability to consider
“the totality of the circumstances,” rather than rigid formulaic
standard, when determining whether to depart based on aberrant
behavior); United States v. Takai, 941 F.2d 738, 743 (9th Cir.
1991) (allowing district court to exercise discretion to depart
based on aberrant behavior even if defendant committed several acts
culminating in one criminal act); accord United States v. Simpson,
7 F.3d 813, 820 (8th Cir. 1993) (leaving open possibility that
district court properly exercising its discretion could depart
based on aberrant behavior even though defendant committed several
criminal acts).

                                    -15-
1581    (8th    Cir.   1996),   the    district    court   departed    upward     from    the
guidelines for three unmentioned factors.               The district court decided the
heartland of cases under the guideline for using buildings to store
marijuana       did    not   encompass    cases    in    which   (1)   the   charge       was
incommensurate with the defendant’s acts, (2) the defendant reaped a large
return on his investment, and (3) the defendant knew his business laundered
money.    Id.    This court affirmed without requiring the district court to
extensively elaborate about how the case differed from other guidelines
cases.    Id.; see also United States v. One Star, 9 F.3d 60, 61 (8th Cir.
1993)    (affirming      district     court’s   decision    to   depart   based    on    “not
ordinarily relevant” factors).


        I believe this court’s treatment of a district court’s decision to
depart from the guidelines in McCarthy requires us to affirm the district
court’s decision in this case.           According to the majority’s analysis, both
cases concerned departures based on unmentioned factors.                  In McCarthy the
district court relied on the defendant’s large return on his investment and
his knowledge of his business’ use in criminal activities to support its
conclusion that the case fell outside the guideline's heartland.                  McCarthy,
97 F.3d at 1581.        This court did not require the district court to further
elaborate about why the defendant’s profits or knowledge were




                                            -16-
extraordinary, nor did this court remand for the district court to compare
how other people allowing their business’ to store marijuana differed from
the defendant in terms of profit or knowledge.             See id.    In Kalb’s case,
however, the majority remands for further explanation and comparison
because the district court relied on the defendant’s susceptibility to
enticements    of   large     profits   and   reluctance   to   participate     in   the
conspiracy.    The factors relied on by the district court in Kalb’s case to
depart downward from the guidelines are merely the inverse of the factors
relied on by the district court in McCarthy to depart upward from the
guidelines.    Likewise, both district judges regarded the guidelines ranges
as   incommensurate    with    the   defendants’   acts.     The     only   discernable
distinction between this case and McCarthy appears to be that the former
concerned a downward departure and the latter an upward departure.                   The
discretion this court affords to district courts’ decisions to depart from
the guidelines cannot be dictated by the direction of the departure.



      D.      Proper Inquiry upon Remand.


      Finally, I do not agree with the requirements on remand set forth by
the majority.       The majority’s opinion calls for the district court to
compare Kalb’s conduct and motivation to other drug couriers and explain
“why this made Kalb an ‘aberrational’ drug conspirator.”               Slip op. at 7.
The majority’s opinion requires the district court to explain how Kalb’s
acts were aberrant for a drug courier -- in other words, how Kalb’s conduct
differed from “typical” drug couriers.             Whether a defendant’s conduct
constitutes aberrant behavior, however, is not determined by comparing the
actions, taken in isolation, with other defendants to decide if the
behavior was unusual.       Rather, the district court should determine whether
the behavior was more unusual for the particular defendant to engage in
given the unique characteristics of the defendant, that is, whether Kalb’s
acts were more or less aberrant for Kalb to




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undertake, given his background, family, work experience, disposition,
etc., than for a typical drug courier.


III. CONCLUSION


     The Supreme Court recognizes that district courts retain their
traditional discretion to depart from the guidelines for atypical cases and
possess a unique institutional advantage to discern the typical cases from
the atypical.   This court should do no less.


     A true copy.


           Attest:


                  CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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