UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                No. 97-4006

WILBERT H. LAWRENCE, SR.,
Defendant-Appellee.

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                No. 97-4007

JAMES EDWARD JONES,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(CR-96-103)

Argued: August 14, 1997

Decided: September 11, 1997

Before RUSSELL and HALL, Circuit Judges, and MICHAEL,
Senior United States District Judge for the Western District of
Virginia, sitting by designation.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Alan Mark Salsbury, Assistant United States Attorney,
Norfolk, Virginia, for Appellant. Patrick Hugh O'Donnell, KAUF-
MAN & CANOLES, Norfolk, Virginia, for Appellee Lawrence; Rob-
ert Bruce Rae, RAE, FORBES & HALL, P.C., Virginia Beach,
Virginia, for Appellee Jones. ON BRIEF: Helen F. Fahey, United
States Attorney, Norfolk, Virginia; William G. Otis, Senior Litigation
Counsel, UNITED STATES ATTORNEY'S OFFICE, Alexandria,
Virginia, for Appellant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

The United States appeals the sentences imposed on Wilbert Law-
rence and James Jones following their convictions for conspiracy to
defraud the United States and making false declarations before a fed-
eral grand jury, in violation of 18 U.S.C. #8E8E # 371 and 1623. Because
we conclude that the district court's decisions to depart downward
from the applicable guidelines range were an abuse of discretion, we
vacate the sentences and remand for resentencing.

I.

Defendant Wilbert Lawrence runs a business, Lawrence Landscap-
ing and Maintenance Service, Inc., which employs about 80 persons.
In February 1995, Lawrence Landscaping was preparing to bid on a
janitorial services contract for a Navy compound in Norfolk, Virginia.
The Navy's existing contract was with Alrod Enterprises; it was set
to expire in May 1995.

Lea Ann Fipps was the finance manager of Alrod Enterprises, and
defendant James E. Jones was its director of marketing for schools

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and colleges. Fipps and Jones had apparently grown disenchanted at
Alrod, so they hatched a plot to make sure that Lawrence Landscap-
ing obtained the Navy contract and to then take jobs with Lawrence
Landscaping.

On March 18, 1995, Jose Madry, a Lawrence Landscaping
employee, met with Fipps and Jones at Lawrence Landscaping's
office in Portsmouth. Wilbert Lawrence was present. Fipps gave
Madry a folder with copies of Alrod's actual contract expenditure
sheets for several preceding months. This information was confiden-
tial and proprietary to Alrod, and Fipps had no authority to disclose
it. Fipps had placed a Post-ItTM Note on the folder to Madry stating
that the papers "are budget sheets for CINCLANT[the Navy contract]
and will show you actual expenditures. . . . Please keep these sheets
confidential for me! I ask that you get rid of them when we're fin-
ished! Thanks!"

Lawrence told Madry to consult with Fipps in preparing Lawrence
Landscaping's bid. Over the next week, Madry worked closely with
Fipps, both over the telephone and in person, to finish the paperwork.
Lawrence was present when Fipps and Madry met in person.

On April 3, 1995, Lawrence submitted Lawrence Landscaping's
bid. There were four other bidders, including Alrod Enterprises. Law-
rence Landscaping's bid was the lowest, at approximately $1.35 mil-
lion. The next highest was just a few thousand more; Alrod's was
much higher, at almost $1.8 million.

Fipps resigned from Alrod that same day. As the conspirators
expected, the Navy contract was awarded to Lawrence Landscaping.
Jones quit Alrod on May 1, and both he and Fipps were hired by Law-
rence Landscaping.

These events apparently aroused the government's suspicion, and
a grand jury investigation began. Lawrence, Fipps, and Jones lied to
the grand jury: Lawrence stated that neither he nor any of his employ-
ees had received the Alrod cost information, Jones denied being pres-
ent when Fipps gave the information to Madry, and Fipps denied
giving the information at all.

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Lawrence, Jones, and Fipps were charged with making false decla-
rations to the grand jury and conspiracy to defraud the United States.
Following a jury trial, they were convicted.

The guidelines range for their crimes was 10-16 months.1 Though
Fipps received an active prison sentence, the district court departed
downward for Lawrence and Jones. They were sentenced to probation
and six months' home confinement.

The government appeals the sentences of Lawrence and Jones. We
have jurisdiction under 18 U.S.C. § 3742(b).

II.

A sentencing court may depart from the guidelines only if the case
features an aggravating or mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the Sentencing
Commission, and the circumstance is one for which a departure
"should result." United States v. Hummer , 916 F.2d 186, 192 (4th Cir.
1990), cert. denied, 499 U.S. 970 (1991). We review the district
court's decision to depart under an abuse of discretion standard. Koon
v. United States, 116 S.Ct. 2035, 2046-2048 (1996). Each guideline
carves out a "heartland" of typical cases; consequently, if a circum-
stance is typical for the offense, it provides no basis for a departure.
Id. at 2043. Moreover, reliance on an erroneous legal ground for
departure is always an abuse of discretion, id. at 2045, and departures
on grounds not mentioned in the guidelines should be"highly infre-
quent." Id. at 2047. With these principles in mind, we turn to the pres-
ent case.

Why did the district court depart? First, the court was impressed by
the defendants' exemplary lives. Both were 52 years old, had no crim-
inal records, had served in the military, and had superb reputations in
the community. Both had risen from humble beginnings to success in
legitimate business. In the context of these industrious, law-abiding
lives, the court found that the offense conduct was aberrational.
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1 Criminal History Category I and Offense Level 12 yield this range.

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As to Lawrence, the court also took into account that his 80
employees would likely lose their jobs if he were jailed and that his
business would suffer significant collateral consequences (like debar-
ment from government contracts and civil liability) that mitigated the
need for imprisonment.

These circumstances cannot justify a departure. The age of the
defendant is not ordinarily relevant unless he is elderly and infirm.
U.S.S.G. § 5H1.1. The district court suggested that there is a differ-
ence between a 22-year-old with no record and a 52-year-old, and the
older man should receive credit for obeying the law longer. This anal-
ysis assigns direct relevance to age per se, which is precisely what
§ 5H1.1 forbids. In addition, we note that the defendants' ages are
typical of those charged with similar crimes.

A crime-free life simply places one in Criminal History Category
I. The guidelines recognize no gradations among previously law-
abiding defendants. One could argue that there is a great variety of
morality among the non-criminal element of our society, and a sen-
tencing court ought to be able to take a defendant's prior good deeds
into account. The Sentencing Commission fully considered this
option and chose not to adopt it. U.S.S.G. § 5H1.11 (past good deeds,
military service, etc., "not ordinarily relevant"). Though § 5H1.11
leaves the door ever so slightly ajar for a defendant of truly extraordi-
nary past virtue, our precedent establishes that neither Lawrence nor
Jones can open it. See United States v. Rybicki , 96 F.3d 754 (4th Cir.
1996) (defendant was a highly-decorated Vietnam veteran, had saved
an innocent civilian during the My Lai massacre, and had served in
the Secret Service; these good deeds did not warrant a departure);
United States v. McHan, 920 F.2d 244, 247 (4th Cir. 1990) (defen-
dant's work history, family ties and responsibilities, and extensive
contributions to town's economic well-being could not justify down-
ward departure).

The guidelines do countenance downward departure for a "single
act[ ] of aberrant behavior." U.S.S.G., Ch.1, Pt. A, Introduction, ¶
4(d) (emphasis added). "Aberrant" means something more than a per-
son's first offense -- else Criminal History Category I is meaningless
-- and the requirement of a "single" act excludes any scheme involv-
ing planning or conduct over a period of time.

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          A single act of aberrant behavior suggests "a spontaneous
          and seemingly thoughtless act rather than one which was the
          result of substantial planning because an act which occurs
          suddenly and is not the result of a continued reflective pro-
          cess is one for which the defendant may be arguably less
          accountable."

United States v. Glick, 946 F.2d 335, 338 (4th Cir. 1991) (quoting
United States v. Carey, 895 F.2d 318, 325 (7th Cir. 1990)). The fraud
took a good deal of planning, and it was followed by false grand jury
testimony many months later. This conduct cannot constitute a "single
act of aberrant behavior."

The "collateral consequences" to Lawrence Landscaping are not at
all atypical in a government contractor fraud case. Indeed, they define
the paradigm: one would expect the government to refuse to contract
with those who have defrauded it. Because these consequences are
typical of the offense, they offer no basis for departure.

Lastly, the court was concerned that Lawrence Landscaping's 80
employees, many of them downtrodden folk who could not easily find
jobs elsewhere, might lose their jobs if Lawrence were in jail. The
government again points out that fraud by government contractors
almost always involves a business, often a small one like Lawrence
Landscaping, and jailing the boss puts the business at peril. There is
nothing atypical here.2 In addition, the government notes that the
guidelines expressly discourage departures on account of the needs of
a defendant's family,3 and asks rhetorically whether we should be
more sympathetic to the displaced worker in the unemployment office
or the displaced child in the orphanage. As for all good rhetorical
questions, the answer is self-evident.
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2 The Third and Sixth Circuits have reached similar conclusions.
United States v. Sharapan, 13 F.3d 781, 784-786 (3rd Cir. 1994); United
States v. Rutana, 932 F.2d 1155, 1158 (6th Cir.), cert. denied, 502 U.S.
907 (1991). But see United States v. Milikowsky , 65 F.3d 4 (2nd Cir.
1995).
3 U.S.S.G. § 5H1.6; see United States v. Weddle, 30 F.3d 532, 540-541
(4th Cir. 1994) (defendant's status as a single parent was "unfortunate"
but not atypical).

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The sentences are vacated, and the cases are remanded with
instructions to resentence the defendants within the prescribed 10-16
months range.

VACATED AND REMANDED

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