                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-1711
                                   ___________

United States of America,               *
                                        *
             Appellant,                 *
                                        * Appeal from the United
      v.                                * States District Court for
                                        * the District of Nebraska.
Gordon J. Givens,                       *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: December 14, 2005
                                Filed: April 11, 2006
                                 ___________

Before WOLLMAN, BEAM, and RILEY, Circuit Judges.
                          ___________

BEAM, Circuit Judge.

       Following a plea of guilty to bank fraud, the district court departed from the
twenty-four to thirty month United States Sentencing Guidelines range suggested by
the pre-sentence investigation report (PSR) and sentenced Gordon Givens to time
served (Givens had served no time) and five years of supervised release to include a
twelve-month term of house arrest, eighty hours of community service and restitution
in the amount of $1,220,875. The government appeals, arguing that this sentence is
wholly unreasonable. We agree, vacate Givens' sentence and remand for resentencing.
I.    BACKGROUND

       Givens ran a cattle feedlot near O'Neill, Nebraska. In late 2001, he obtained an
operating loan, a line of credit, and residential refinancing from United Nebraska
Bank. Givens pledged various assets as security for the $750,000 operating loan.
These supposed assets were later determined to be nonexistent. Specifically, Givens
represented that certain cattle in his feedlot were his and in turn pledged them as
collateral when, in truth, the cattle belonged to other ranchers.

       In August 2003, Givens approached the bank and told them he would not be
able to pay off the loans and admitted to falsifying the computer documents related
to the ownership of cattle at his feedlot. The bank declared a loss of $2,216,088.47.
After partial recovery was made through the sale of existing feedlot assets, the loss
remained at $1,220,875.

       On November 12, 2004, Givens waived indictment and pleaded guilty to bank
fraud in violation of 18 U.S.C. § 1344. The information charged him with executing
a scheme to defraud the bank of approximately $900,000. The parties agreed on the
relevant conduct and that the loss to the bank was greater than $400,000 and less than
$1,000,000 and that the corresponding fourteen-level sentencing enhancement for that
amount was appropriate. The PSR also included a suggested three-level reduction for
acceptance of responsibility. The government abided by its promise to request that
Givens be sentenced at the low end of the suggested twenty-four to thirty month
guidelines range.

       Prior to sentencing, the U.S. Probation Office submitted a recommendation to
the district court suggesting that Givens be sentenced to time served (even though
Givens had not yet served any time) followed by a five-year term of supervised
release despite the suggested twenty-four to thirty month guideline range. The
probation officer substantiated this proposal by stating that Givens had no prior

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criminal history, this was not a crime of violence, Givens reported the crime to the
bank himself, and Givens likely faced jail time on the corresponding state charges for
the same conduct. While the probation officer apparently felt that probation was
likely the best option for Givens, it was not authorized by the statutory provisions for
this crime.

        At sentencing, Givens sought an additional downward departure under chapter
five of the guidelines for civic, charitable, or public service; a record of prior good
works; and for voluntary disclosure of his offense. At sentencing there were several
letters submitted to the district court on Givens' behalf attesting to his moral character
and the fact that Givens had already signed over some life insurance policies in an
attempt at restitution.

       The district court refused to depart on the bases requested by Givens under
U.S.S.G. § 5H1.11 even though Givens had taken responsibility for his actions and
remained a charitable and civic-minded individual. The district court did, however,
depart downward for its own reasons, recognizing Givens' extraordinary post-offense
rehabilitation since Givens had stepped forward and had done what he could to make
things right. The court also considered other factors it believed took this case out of
the heartland of bank fraud cases including: the social concerns of rural agriculture
communities struggling to make ends meet in a competitive world market, prompting
men like Givens to resort to fraud; the fact that placing Givens in jail would jeopardize
his new position of running a cattle operation for the community; and that the bank
was partially to blame because it had to have known that the numbers weren't right
and, thus, should not have extended the loans.

      The district court explained that the imposed, non-custodial sentence would
allow Givens to continue to be an asset to his community and would not jeopardize
the community which had put Givens in charge of another cattle operation.
Simultaneously, the district court intended that the limitations imposed by the house

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arrest would keep Givens from participating in many family events, punish Givens for
the grief he had caused his community, and account for the "issue" between Givens
and the bank concerning the fraud committed by Givens.

II.   DISCUSSION

      In imposing sentences, a district court should determine the advisory guideline
sentencing range, based on the total offense level, criminal history category, and any
appropriate departures from the guidelines. United States v. Shannon, 414 F.3d 921,
923 (8th Cir. 2005). The district court may then vary from the advisory guideline
range based on the factors set forth in section 3553(a), so long as such a variance is
reasonable. Id. On appeal, we start by considering whether the district court properly
calculated the guideline range, whether it erred in any departure decision, and then
whether the sentence imposed was reasonable. United States v. Haack, 403 F.3d 997,
1003 (8th Cir. 2005).

       Neither party challenges the initial guideline range of twenty-four to thirty
months set forth in the PSR. The district court did depart, however, based upon
Givens' post-offense rehabilitation and other factors it thought removed Givens'
situation from the heartland created by other similar cases. We review the court's
decision to depart for abuse of discretion. United States v. Mashek, 406 F.3d 1012,
1017 (8th Cir. 2005).

       The government argues that the district court's reasons for imposing a non-
custodial sentence in this case are invalid and wholly unreasonable and in no way
justify such a huge deviation from the suggested, advisory guideline range. It states
that Givens' circumstance is in no way atypical or extraordinary–that Givens' own
disclosure is of no consequence because the discovery of the fraud was imminent and
that oftentimes people will pledge insurance policies or the like to begin pre-sentence
restitution. Further, the government points out that even if the bank is at fault in any

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way through its own negligence or gullibility, its lapse does not diminish Givens'
criminal act. And, according to the government, there is no support for the district
court's pronouncement that O'Neill is a community struggling at the hands of the
competitive world agricultural market. By failing to give Givens any jail time, the
government contends, the sentencing disparity with other defendants similarly situated
is increased and encourages others to engage in similar behavior.

       We agree with the government that the "prison is not the answer" sentence
doesn't pass muster in this case. While we certainly could foresee sufficient reasons
for departing from the suggested sentence, the district court abused its discretion in
departing so drastically from the calculated guidelines range. First, and foremost,
Givens' alleged post-offense rehabilitation is not extraordinary. See United States v.
Rogers, 400 F.3d 640, 641-42 (8th Cir. 2005) (recognizing that a district court must
explain any extraordinary or atypical factors justifying a departure for extraordinary
post-offense rehabilitation and refusing to justify the departure for Rogers on that
basis), cert. denied, 126 S. Ct. 1020 (2006). In fact, it is unclear exactly how Givens
has been "rehabilitated" given his prior history of upstanding living outside the
perpetrated fraud. Possibly the district court was referring to Givens' forthright
acceptance of responsibility but we do not conjecture on that today. At any rate, while
Givens' efforts are certainly commendable, they are not atypical or extraordinary. The
guidelines adequately contemplate ordinary post-offense rehabilitation under section
3E1.1. U.S.S.G. § 5K2.0(d)(2).

       Likewise, the socio-economic status of the rural midlands and any insinuation
that the bank somehow shares blame with Givens are irrelevant determinants
expressed in the sentencing colloquy and certainly do not support this particular
downward departure. Finally, limiting Givens' jail time in order to help him retain his
worth in the community, while relevant, does not support the extent of the departure
here. Thus, based on the factors relied upon by the district court at sentencing to



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arrive at the non-custodial sentence in this case, the departure was impermissible and
the district court abused its discretion.

       In light of our conclusion that the district court abused its discretion, we
likewise determine that the sentence imposed was unreasonable. As to the
reasonableness inquiry, even though a district court need not categorically rehearse
each of the section 3553(a) factors when it imposes its sentence–it is enough to
calculate the range accurately and explain why a defendant deserves more or less–the
further the judge's sentence departs from the guidelines sentence, the more compelling
the section 3553(a) justification must be. The judge must offer reasons that allow the
court of appeals to assess the reasonableness of the sentence imposed. United States
v. Dieken, 432 F.3d 906, 909 (8th Cir. 2006). Further, "we will not infer a reasoned
exercise of discretion from a record that suggests otherwise or is silent." United States
v. Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005).

       In this case the district court gave significant weight to Givens' history and
characteristics and showed a great deal of sympathy toward him. The court gave too
much weight to these factors and not enough to the other portions of section 3553(a).
The "time-served" plus house arrest sentence does not properly consider Congress's
desire to avoid unwarranted sentencing disparities and the brevity of the sentence fails
to reflect the seriousness of the offense, promote respect for the law or provide just
punishment. 18 U.S.C. § 3553(a)(1)(A), (6).

III.   CONCLUSION

       There is nothing so extraordinary here that supports a substantial deviation from
the results contemplated by Congress and the resulting sentence is unreasonable.
Accordingly, the judgment of the district court is vacated and the case is remanded for
resentencing consistent with this opinion.
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