                         United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  _____________

                                  No. 97-1540MN
                                  _____________

United States of America,               *
                                        *
                   Appellant,           * Appeal from the United States
                                        * District Court for the District of
      v.                                * Minnesota.
                                        *
James Allen Kapitzke,                   *
                                        *
                   Appellee.            *
                                  _____________

                            Submitted: October 21, 1997
                                Filed:
                                 _____________

Before FAGG, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                          _____________

FAGG, Circuit Judge.

       James Allen Kapitzke was apprehended after he exposed himself in front of a
thirteen-year-old girl inside a department store. In Kapitzke’s truck and home, police
found pictures of nude children and computer files showing children engaged in sex
acts with each other and with adult men. Kapitzke, a computer programmer, had
downloaded the computer files from the Internet. The Government charged Kapitzke
with one count of unlawful possession of child pornography in violation of 18 U.S.C.
§ 2252(a)(4) (1994), and Kapitzke pleaded guilty. Application of the U.S. Sentencing
Guidelines Manual (Guidelines or U.S.S.G.) resulted in a sentencing range of fifteen
to twenty-one months, but the district court departed downward based on several
mitigating circumstances under U.S.S.G. § 5K2.0. The court sentenced Kapitzke to
nine months of confinement at a facility with release privileges for work and treatment,
five years of probation, and payment of a mandatory special assessment. The
Government appeals. We vacate Kapitzke’s sentence and remand to the district court.

       A district court cannot depart downward from the applicable Guidelines range
unless the court finds a “mitigating circumstance of a kind, or to a degree, not
adequately taken into consideration by the Sentencing Commission in formulating the
[G]uidelines.” 18 U.S.C. § 3553(b) (1994); U.S.S.G. § 5K2.0 (1995). When
assessing whether the Sentencing Commission adequately considered a potential basis
for departure, courts focus on whether the factor is addressed by the Guidelines, policy
statements, or official commentary. See 18 U.S.C. § 3553(b); Koon v. United States,
116 S. Ct. 2035, 2044 (1996). In these sources, the Commission forbids consideration
of a few grounds for departure, discourages or encourages use of some specific
grounds, and does not mention others. See Koon, 116 S. Ct. at 2045. If use of a
certain factor is discouraged, or encouraged but already taken into account in the
applicable guideline, then departure is permissible “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.” Id. Likewise, if the Commission has not mentioned
a factor, then departure on that basis is proper only when the circumstances of the case
are atypical, considering the structure and theory of the Guidelines. See id. We must
give substantial deference to a district court’s decision to depart from the Guidelines.
See id. at 2046. With these principles in mind, we turn to the district court’s reasons
for departing in Kapitzke’s case.

       At the sentencing hearing, the court stated it was “going to sentence [Kapitzke]
to permit [him] to continue to work because [his] family needs the support,” and if the
court sentenced Kapitzke to prison, the court “could have just as well issued a divorce
decree.” Kapitzke argues his imprisonment would place a "terrible financial burden"
on his wife, who would be left to support their two children alone as best she could.

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We conclude no departure is warranted on these grounds. Family ties and
responsibilities are discouraged factors that warrant departure only if present to an
exceptional degree. See id. at 2045. Kapitzke has not shown his family’s
circumstances are substantially different from those facing families of any other
defendant about to be incarcerated. See United States v. Rodriguez-Velarde, No. 96-
2292, 1997 WL 640618, at *2-3 (10th Cir. Oct. 17, 1997); see also id. at *1 (four-part
analysis for reviewing departure decisions). Even if divorce is an unmentioned rather
than a discouraged factor, “the disintegration of existing family life or relationships .
. . is to be expected when a family member engages in criminal activity that results in
a period of incarceration.” United States v. Canoy, 38 F.3d 893, 907 (7th Cir. 1994).
Because Kapitzke failed to show his family ties and responsibilities are exceptional, the
district court abused its discretion in relying on this factor to grant a downward
departure from the applicable Guidelines range.

       The district court also believed Kapitzke would be susceptible to abuse in prison
because of the nature of his offense. Susceptibility to abuse in prison justifies departure
only in extraordinary circumstances. See United States v. Belt, 89 F.3d 710, 714 (10th
Cir. 1996); see also Koon, 116 S. Ct. at 2053. Kapitzke’s mere membership in a class
of offenders that may be targeted by other inmates cannot make his case extraordinary.
See United States v. Rybicki, 96 F.3d 754, 759 (4th Cir. 1996) (district court cannot
depart based on extraordinary punishment merely because police officers as a class
suffer disproportionate problems when incarcerated); see also Koon, 116 S. Ct. at 2053
(district court could depart based on susceptibility to abuse in prison given
“extraordinary notoriety and national media coverage of this case, coupled with the
defendants’ status as police officers”). Otherwise, every child pornographer would be
eligible for a departure, thwarting the Guidelines’ sentences for that sort of crime. We
do not believe pornographers as a class are entitled to more favorable treatment under
the Guidelines. See Rybicki, 96 F.3d at 759. We doubt that Congress or the Sentencing
Commission meant to protect pornographers “as a group from the otherwise universally
applicable effects of incarceration on convicted criminals.” Id. In

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Kapitzke’s case, the district court identified nothing special about the factual
circumstances beyond his classification as a child pornographer. Kapitzke’s average
physique and good health do not make him “exceedingly vulnerable to . . .
victimization.” United States v. Long, 977 F.2d 1264, 1277 (8th Cir. 1992) (approving
departure based on defendant’s frail health); see United States v. Lara, 905 F.2d 599,
601, 605 (2d Cir. 1990) (approving departure based on defendant’s diminutive size,
immature appearance, and bisexual orientation). The record does not support departure
based on susceptibility to abuse in prison, and the district court abused its discretion in
relying on this reason for departure.

       Another ground for departure, postoffense rehabilitation, is listed as one of the
ways a defendant may show acceptance of responsibility warranting a reduction of the
defendant’s offense level. See U.S.S.G. § 3E1.1 commentary app. n.1(g). Because the
acceptance of responsibility guideline takes postoffense rehabilitation efforts into
account, departure under section 5K2.0 is warranted only if the defendant’s efforts are
exceptional enough to be atypical of cases in which the acceptance of responsibility
reduction is usually granted. See United States v. Sally, 116 F.3d 76, 80 (3d Cir. 1997);
United States v. Brock, 108 F.3d 31, 35 (4th Cir. 1997); United States v. Simpson, 7
F.3d 813, 819 (8th Cir. 1993). Thus, a defendant convicted of receiving child
pornography may be entitled to a downward departure based on extraordinary
rehabilitative efforts. See United States v. Barton, 76 F.3d 499, 503 (2d Cir. 1996);
United States v. Studley, 907 F.2d 254, 259 (1st Cir. 1990); see also United States v.
Shasky, 939 F. Supp. 695, 697-700 (D. Neb. 1996).

      In keeping with the Government’s recommendation, the district court granted
Kapitzke the maximum three-level reduction of his offense level for acceptance of
responsibility under section 3E1.1. In addition, the district court concluded departure
under section 5K2.0 was warranted because Kapitzke had made “extraordinary post-
offense efforts at rehabilitation,” and had shown “guilt and regret for his conduct
beyond that normally seen by the Court.” Kapitzke had entered sex offender and

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chemical dependency treatment about a week after his May 1996 arrest. By the time
of his sentencing eight months later, Kapitzke had made significant progress. The
district court recognized that after an indecent exposure conviction eight years earlier,
Kapitzke had been treated without success. To address its concerns about the sincerity
of Kapitzke’s remorse and the future correction of his behavior, the district court
sentenced Kapitzke to the maximum term of probation, leaving the district court with
the option to impose incarceration if Kapitzke's probationary accomplishments are
illusory and merely staged to gain a favorable sentence.

      In explaining its reasons for departure, the district court stated:

      [Kapitzke] has been attending regularly both a sex offender therapy program
      and an intensive chemical dependency program while working full-time. He
      has recently completed his chemical dependency treatment successfully and has
      maintained sobriety since then. [Kapitzke] entered both treatment programs
      voluntarily and before he was aware that federal charges would be filed against
      him. The fact that he entered one or both of these programs on advice of
      counsel does not detract from his rehabilitative efforts. The Court is heartened
      to learn that [Kapitzke] has received excellent progress reports from both
      programs. His counselors report that he has accepted his addictions and is
      determined to regain control of his life and keep his family intact. . . . The
      Court is also impressed by the continued support that [Kapitzke] receives from
      his family and friends, particularly his wife. This support is essential to
      [Kapitzke’s] continued recovery.


Statement of Reasons for Imposing Sentence at 4.

       The district court relied on several documents submitted by Kapitzke in support
of his downward departure motion. In a December 1996 progress report, the director
of Kapitzke’s sex offender treatment program reported he was “extremely impressed”
with Kapitzke’s efforts. Kapitzke had attended some type of therapy or support group
almost every night, including weekly group therapy sessions, semi-monthly individual

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therapy sessions, and family therapy as needed. The director estimated Kapitzke could
complete treatment in two years, followed by regular participation in an aftercare group.
The director believes Kapitzke has a high probability of success, but a prison sentence
could have a negative effect on his treatment’s continuity. In a January 1997 progress
report, the director explained that Kapitzke now views therapy as a method of
permanently changing his behavior and putting his family back together rather than as
a means to escape the criminal justice system. Similarly, in a discharge summary dated
January 21, 1997, Kapitzke’s chemical dependency counselor stated that in his seven
years of experience, he had never had a client work harder than Kapitzke, and Kapitzke
“appears to be committed to sobriety and continued recovery.” The counselor stated
Kapitzke’s prognosis is “very good” if he maintains contacts with the program. Finally,
a physician with twenty years of experience in the field of addiction medicine had
evaluated Kapitzke for both treatment programs and had seen him two other times. In
a January 1997 letter to the district court, the physician stated Kapitzke has shown an
“extraordinary desire to recover from all of his addictions, as well as an extraordinary
willingness to do whatever is necessary to achieve that end.” The physician described
Kapitzke’s recovery up to that point as “truly outstanding.”

       Although we are not persuaded that Kapitzke's postoffense rehabilitation
"remove[s] [Kapitzke's] case from the heartland in which the acceptance of
responsibility guideline was intended to apply," Sally, 116 F.3d at 80, we are dealing
with a fact-based judgment call that falls within the district court's sentencing discretion,
and we are not permitted to substitute our judgment for that of the sentencing court, see
Koon, 116 S. Ct. at 2046. On this record, we cannot say the district court abused its
discretion in finding Kapitzke’s rehabilitation efforts are extraordinary. Thus,
Kapitzke’s rehabilitation efforts are a permissible basis for a departure from the
Guidelines.

      Last, the district court believed Kapitzke’s incarceration would jeopardize his
continued rehabilitation. The district court acknowledged it did not know any specifics

                                            -6-
about sex offender treatment programs in federal prison, however. Having reviewed the
entire record, we conclude there is no factual basis for departure on this ground.

       In sum, the district court based its departure from the applicable Guidelines range
on some invalid factors and one valid factor. We cannot tell whether the district court
would have departed based only on Kapitzke’s postoffense rehabilitation efforts after
already giving Kapitzke the maximum reduction for acceptance of responsibility.
Because we do not know that the district court would impose the same sentence absent
the invalid departure factors, we remand for resentencing. See Koon, 116 S. Ct. at
2053-54.

MORRIS SHEPPARD ARNOLD, Circuit Judge, concurring and dissenting.

       I agree that this case must be remanded to the district court for a new decision on
the question of whether a departure in Mr. Kapitzke's case is warranted. But I do not
agree that Mr. Kapitzke's susceptibility to abuse in prison is not a matter that the district
court can properly weigh in making that decision. In fact, in Koon the Court said that
a defendant's susceptibility to abuse was "just the sort of determination that must be
accorded deference by the appellate courts." 116 S. Ct. at 2053. In Koon, moreover,
the district court did not have any record from which to conclude that the defendants in
that case were susceptible to abuse; it merely took judicial notice of the "widespread
publicity and emotional outrage" that the case had generated. In this case, the district
court simply took judicial notice of some other well known fact..

       Despite the misgivings of the court in this case, I see no realistic possibility that
allowing departures in these kinds of cases runs the risk of "thwarting the Guidelines'
sentences" for crimes like Mr. Kapitzke's. I am not suggesting that courts must always
depart in these kinds of cases, only that we cannot properly hold that it is error to do so.
The government, for its part, can always offer proof of its efforts, if any, to protect
persons convicted of these kinds of crimes. In any event, I see no difference in

                                            -7-
allowing a departure because of Mr. Kapitzke's classification as a child pornographer,"
as the court puts it, and allowing one where the defendant is a policeman, a factor to
which the Court in Koon alluded in upholding a departure for susceptibility to abuse.
Both kinds of cases involve classifications of a kind.

       I therefore respectfully dissent from the portion of the court's opinion that holds
that the district court erred in relying on Mr. Kapitzke's susceptibility to abuse in prison
in departing from the sentence that the Guidelines presumptively fixed for his crime.

       A true copy.

              Attest:

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




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