                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 06-1893
      ___________

United States of America,                 *
                                          *
            Plaintiff - Appellant,        *
                                          *
      v.                                  *
                                          *
Anthony Gentile,                          *
                                          *
            Defendant - Appellee.         *
                                          *
      ___________
                                              Appeals from the United States
      No. 06-2269                             District Court for the
      ___________                             Eastern District of Missouri.

United States of America,                 *
                                          *
            Plaintiff - Appellant,        *
                                          *
      v.                                  *
                                          *
Sheila Gentile,                           *
                                          *
            Defendant - Appellee.         *

                                     ___________

                             Submitted: December 13, 2006
                                 Filed: January 17, 2007
                                 ____________

Before LOKEN, Chief Judge, JOHN R. GIBSON, and MURPHY, Circuit Judges.
                              ____________
MURPHY, Circuit Judge.

      Anthony and Sheila Gentile, who are brother and sister, both pled guilty to
conspiracy to possess pseudoephedrine knowing that it would be used to manufacture
methamphetamine. The district court varied from the calculated advisory guideline
range of 100 to 125 months to sentence Anthony Gentile to 48 months. After
calculating a guideline range of 37 to 46 months for Sheila Gentile, the district court
sentenced her to one day of time served and probation. The government appeals both
sentences as unreasonable. We reverse.

      In February 2003 members of the Saint Louis Methamphetamine Precursor
Diversion Task Force (task force) observed Sheila Gentile purchasing
pseudoephedrine based products at local pharmacies. When questioned by members
of the task force, Ms. Gentile stated that she had intended to deliver the
pseudoephedrine to her brother Anthony, an allegation he later denied. Ms. Gentile
was again observed gathering pseudoephedrine pills in June 2004, and she stated that
she intended to sell them on E-Bay. In October 2004 she was found with more
pseudoephedrine pills and drug paraphernalia after a routine traffic stop.

       In June 2003 the task force also observed Anthony Gentile making multiple
purchases of cold medicine. During a stop of his vehicle, the police observed a
number of pill packs in plain view as well as drug paraphernalia. Crime lab tests
revealed that the pills contained 83.52 grams of pseudoephedrine. Mr. Gentile stated
in a subsequent interview that he intended to exchange the pills for money and for
methamphetamine for his personal use. He denied ever manufacturing or distributing
methamphetamine.

      Sheila and Anthony Gentile were each indicted on one count of conspiracy to
possess pseudoephedrine knowing that it would be used to manufacture a controlled
substance, in violation of 21 U.S.C. § 846. Mr. Gentile was indicted on an additional
count of criminal possession of pseudoephedrine in violation of 21 U.S.C. § 841(c)(2),


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and Ms. Gentile was indicted on three additional possession counts. Both pled guilty
to the conspiracy charges in early December 2005.

       In Mr. Gentile's case, the parties agreed that he was responsible for between 70
and 100 grams of pseudoephedrine, anticipating a base offense level of 30, a two level
reduction for minor role, see U.S.S.G. § 3B1.2(b), and a three level reduction for
acceptance of responsibility, see id. § 3E1.1(a), (b). Without taking his criminal
history into account, his advisory guideline range would have been 57 to 71 months,
but he had multiple prior convictions, including five drug or alcohol related offenses,
felony burglary, and felony endangering the welfare of a child. Mr. Gentile also
committed the instant offense while on probation for a prior conviction. The district
court assessed his criminal history category at V, resulting in a guideline range of 100
to 125 months.

       The district court then varied downward to sentence Mr. Gentile to 48 months.
In doing so the court explained that although he had a "serious criminal history," the
court considered it to be a history of "relatively petty crimes" and Mr. Gentile to be
primarily a drug addict, not the kind of "hardened life-long drug dealers" who might
also be sentenced for the same offense under the same guideline. The court
questioned the Sentencing Commission policy on pseudoephedrine, which uses a
sentencing formula based on the presumed amount of methamphetamine that could
be produced from the amount of pseudoephedrine possessed. According to the district
court, the relationship between precursor quantities and methamphetamine quantities
"is not as simple a correlation as the Sentencing Commission perhaps believed at the
time they set the guidelines."

       In Ms. Gentile's plea agreement, the parties agreed that she was responsible for
more than 40 but less than 70 grams of pseudoephedrine, resulting in a base offense
level of 28 under the advisory guidelines. They also agreed to a three level reduction
for acceptance of responsibility, see U.S.S.G. § 3E1.1(a), (b), and a two level
reduction for minor role, see id. § 3B1.2(b). With the government's approval, the



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district court also granted her a two level "safety valve" reduction.1 Ms. Gentile had
no criminal history points, placing her advisory guideline range at 37 to 46 months.

      Ms. Gentile moved for a downward variance or departure on the basis of her
family circumstances and need to "stay home so that she can take care of her child."
In support of this motion she stated that she is the full time caretaker of her two year
old son, whose father is unavailable. She resides with her mother and stepfather, who
both work full time and suffer from a variety of medical complications. She also cares
for her brother Anthony's 14 year old son who lives in the same house and has
behavioral problems. The district court concluded that Ms. Gentile had established
extraordinary family ties and responsibilities warranting a departure under U.S.S.G.
§ 5H1.6.2 The court sentenced her to one day of incarceration and three years of
supervised release, stating that the sentence was a reasonable one under the 18 U.S.C.
§ 3553(a) factors.

       The government appeals both sentences, challenging the appropriateness of the
district court's § 5H1.6 departure in Sheila Gentile's case and arguing that both
sentences were unreasonable. We review a district court's interpretation of the
advisory sentencing guidelines de novo and its decision to depart from the guidelines
for abuse of discretion. See United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir.
2005). We review a final sentence for reasonableness, which is "akin to our
traditional review for abuse of discretion." United States v. Goody, 442 F.3d 1132,
1134 (8th Cir. 2006). "A sentencing court abuses its discretion if it fails to consider
a relevant factor that should have received significant weight, gives significant weight
to an improper or irrelevant factor, or considers only the appropriate factors but


      1
       Although the sentencing guidelines do not specifically provide for safety valve
treatment for pseudoephedrine offenses sentenced under U.S.S.G. § 2D1.11, see U.S.
v. Saffo, 227 F.3d 1260, 1273 (10th Cir. 2000), the parties agreed that a reduction
could nevertheless be appropriate under § 5K2.0.
      2
        Although the district court referred at sentencing to § 5K1.6, it appears that the
court intended the departure to fall under § 5H1.6.

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commits a clear error of judgment in weighing those factors." United States v. Long
Soldier, 431 F.3d 1120, 1123 (8th Cir. 2005) (citing United States v. Haack, 403 F.3d
997, 1004 (8th Cir. 2005)).

       The government challenges the reasonableness of Mr. Gentile's 48 month
sentence, a significant downward variance from his advisory range of 100 to 125
months. The government argues that the district court improperly relied on its own
disagreement with the sentencing guidelines for pseudoephedrine and that it failed to
give adequate weight to his criminal history, to his likelihood to reoffend, and to the
policy against unwarranted sentencing disparities. Because there is no dispute about
Mr. Gentile's guideline range, we review his sentence for reasonableness in light of
the § 3553(a) factors. See Goody, 442 F.3d at 1134.

       Although the sentencing guidelines are advisory and district courts are free to
fashion sentences that fall outside the guideline range where individual circumstances
warrant, disagreement with a policy enunciated by the Sentencing Commission is not
a proper factor upon which to base a variance. See United States v. Blackford, 469
F.3d 1218, 1221 (8th Cir. 2006). Here, the sentencing court offered a general critique
of the policy judgment underlying the pseudoephedrine quantity tables rather than
pointing to specific circumstances that might make the tables unreasonable for Mr.
Gentile's case. Instead, the district court substituted its own policy views for those of
Congress and the Sentencing Commission, an independent agency within the judicial
branch created by Congress to develop sentencing policy and promulgate guidelines.
See United States v. Pho, 433 F.3d 53, 62 (1st Cir. 2006) ("[I]n the absence of
constitutional infirmity, federal courts are bound by Congress's policy judgments,
including judgments concerning the appropriate penalties for federal crimes.); see also
Mistretta v. United States, 488 U.S. 361 (1989). To the extent that it relied on its
general disagreement with the guidelines, the district court abused its discretion.

       The remaining factors on which the district court relied do not provide
sufficient justification for the extent of the variance. The court emphasized that
Anthony Gentile was neither a distributor nor manufacturer of methamphetamine and


                                          -5-
only committed his offense to feed his addiction. The fact that he did not commit
other separate offenses does not provide grounds for a departure of such magnitude.
See United States v. Grinbergs, 470 F.3d 758, 761 (8th Cir. 2006). His advisory
guideline range was based on the offense for which he was convicted, not others. Had
his offense involved the unlawful manufacture of methamphetamine, his offense level
would have been increased accordingly. See U.S.S.G. § 2D1.11(c). The fact that he
committed the offense in order to feed his addiction does not distinguish him from
many other offenders. See United States v. Lee, 454 F.3d 836, 839 (8th Cir. 2006)
("Drug addiction or abuse is not a proper reason to impose a downward variance,
absent exceptional circumstances."). The district court's observation that the
guidelines led to an overstatement of his criminal history also fails to justify the extent
of this variance. Even if he had been assigned no criminal history points, his advisory
guideline range would still have been 57 to 71 months, see United States v. Bradford,
447 F.3d 1026, 1028-1029 (8th Cir. 2006), and his criminal history was in fact
significant. We conclude that the 48 month sentence for Anthony Gentile was
unreasonable.

       The Government also challenges Sheila Gentile's sentence, arguing that a
departure was not warranted on the basis of her family ties and responsibilities and
that the resulting sentence was unreasonable. A district court may depart from the
guideline range if a defendant has significant family responsibilities such that
incarceration would cause unusual harm. See U.S.S.G. § 5H1.6. This is a disfavored
basis for departure, however, see United States v. Bueno, 443 F.3d 1017, 1023 (8th
Cir. 2006) and is not triggered by the kind of family hardships that are ordinarily
incident to incarceration. See U.S.S.G. § 5H1.6 cmt. n.1(B)(ii); see also See United
States v. Johnson, 908 F.2d 396, 399 (8th Cir. 1990) (noting that "parents frequently
are separated from children during periods of incarceration"). Ms. Gentile does not
present the kind of unusually pressing family circumstances that would justify a §
5H1.6. departure of this magnitude. That she is a single mother caring for a young
child does not remove her situation from the heartland of cases. See United States v.
Harrison, 970 F.2d 444, 447-48 (8th Cir. 1992). There is no indication that her young



                                           -6-
son requires special care or that her teenage nephew, for whom she also cares, would
suffer unusual harm without her constant attention and supervision.

       Nor can Ms. Gentile's sentence be characterized as reasonable in light of the §
3553(a) factors. While the district court has discretion to vary from the advisory
guidelines even where a departure would not be appropriate, see United States v.
Hadash, 408 F.3d 1080, 1083-84 (8th Cir. 2005), it still must impose a reasonable
sentence that falls within the "range of choice dictated by the facts of the case," see
Haack, 403 F.3d at 1004. Ms. Gentile's personal circumstances are not so far removed
from those of a typical offender to justify such a significant variance from the
guideline range. See 18 U.S.C. § 3553(a)(1). Although she did cooperate with
authorities and has for the most part remained clean and sober since the time of her
last arrest, her sentence was already reduced to account for those favorable
circumstances. See U.S.S.G. § 3E1.1; see also United States v. Rogers, 400 F.3d 640,
641-42 (8th Cir. 2005) (§ 3E1.1 accounts for ordinary post-offense rehabilitation).
As she acknowledged in her sentencing memorandum, "[t]hose involved in precursor
gathering nearly invariably are acting in the context of a methamphetamine addiction."



       The gathering of precursor chemicals to facilitate the manufacture of
methamphetamine is a serious offense that exposes society to significant risks,
regardless of whether the offender herself is engaged in the actual cooking. See
generally Pub. L. 104-237, 110 Stat. 3099 (1996). The sentence of one day and
probation, where the lower end of the guideline range was 37 months, did not
adequately reflect the seriousness of Sheila Gentile's offense, nor the need to avoid
unwanted sentencing disparities. See United States v. Gall, 446 F.3d 884, 890 (8th
Cir. 2006) (discussing downward departure from 30 months to probation in context
of 18 U.S.C. § 3553(a)(2), (6)). Although there may be circumstances in which
probation is appropriate even where the guidelines advise incarceration, see United
States v. Wadena, 470 F.3d 735, 739 (8th Cir. 2006), this is not such a case. We
conclude that Sheila Gentile's sentence must be vacated as unreasonable.



                                         -7-
      For the reasons stated, the sentences imposed on both Anthony and Sheila
Gentile are vacated and the matters are remanded for resentencing.
                      ______________________________




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