                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-3844
                                   ___________

United States of America,               *
                                        *
                     Appellant,         *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Chaim Isaac Spero,                      *
                                        *
                      Appellee.         *
                                   ___________

                             Submitted: June 15, 2004
                                Filed: September 2, 2004
                                 ___________

Before MURPHY, HEANEY, and BRIGHT, Circuit Judges.
                          ___________

HEANEY, Circuit Judge.

       Chaim Isaac Spero pleaded guilty to bank fraud, in violation of 18 U.S.C. §
1344, and was sentenced to five years probation, six months community confinement,
and six months home detention. Spero’s sentence reflects the district court’s1 grant
of an eight-level downward departure, from which the government now appeals. We
affirm.




      1
       The Honorable Michael J. Davis, United States District Court Judge for the
District of Minnesota.
                                  BACKGROUND

       In September of 2001, Spero began writing bad checks from two accounts at
different banks. The banks uncovered Spero’s actions about six months later, at
which time Spero agreed to restore the stolen funds. On June 9, 2003, the
government charged Spero with bank fraud stemming from Spero’s earlier check-
kiting activities. He pleaded guilty shortly thereafter and was sentenced on
October 21, 2003.

       The district court sentenced Spero after departing downward by eight levels
pursuant to its authority under United States Sentencing Guideline § 5K2.0, reducing
Spero’s total offense level from thirteen to five. The court identified several grounds
supporting its departure: Spero’s extraordinary efforts at restitution, his extraordinary
family circumstances, and the combination of these two factors. On appeal, the
government argues that none of the reasons articulated by the district court is
sufficient to sustain its downward departure.

                                     ANALYSIS

       The PROTECT Act directs us to conduct a de novo review to determine
whether the facts of the case justify a downward departure. United States v. Hutman,
339 F.3d 773, 775 (8th Cir. 2003). The district court’s findings of fact, however, are
reviewed for clear error. United States v. Willey, 350 F.3d 736, 738 (8th Cir. 2003).
Exceptional family circumstances, while ordinarily not relevant for guideline
purposes, see USSG § 5H1.6, p.s., can form the basis for a downward departure if
they are deemed exceptional, USSG § 5K2.0; United States v. Haversat, 22 F.3d 790,
797 (8th Cir. 1994).

      After reviewing the record, we agree with the district court that Spero’s family
circumstances qualify as exceptional and therefore warrant granting him a downward

                                          -2-
departure. Spero is married and has four children, ranging in age from ten to two.
One of his children, Ari,2 suffers from a variety of developmental disorders. He has
been diagnosed with Pervasive Developmental Disorder, mild retardation, Attention
Deficit Hyperactive Disorder, obesity, and macrocephaly.               His Pervasive
Developmental Disorder is described by his doctor, Dr. Reaney, as an autistic
spectrum disorder,3 and manifests itself through the following mannerisms:
“hyperactivity, impulsivity, behavioral rigidity, oppositionality, auditory sensitivity,
compulsive eating, social skills difficulty, and sleep onset difficulty.” (R. at 64.)

      The type of care Ari requires is intense and hands-on. Spero’s wife stays at
home with Ari and cares for him while Spero is at work. Mrs. Spero identified
Spero’s involvement with Ari as a “very important part of [Ari’s] home life.” (R. at
72.) Specifically, Spero’s nighttime routine with his son is a key component of Ari’s
care. Mrs. Spero indicates that “the slightest change in [Ari’s] daily routine can cause
him to become extremely upset and violent.” (Id.)

       Dr. Reaney’s medical assessment of Ari buttresses Mrs. Spero’s account of the
child’s needs. Dr. Reaney described Ari as “very attached and close to his father.”
(R. at 73.) He noted that Spero is a very active parent, accompanies Ari out in the
community, and is responsible for Ari’s bedtime routines. In Dr. Reaney’s
professional opinion, removing Spero from the house would be “detrimental to Ari.”
(Id.) According to the doctor, Ari’s “optimum development” can only be ensured if


      2
       Ari is also referred to as Aaron in some of the court documents. We refer to
him as Ari throughout this opinion.
      3
       Autism is defined as “[a] mental disorder characterized by severely abnormal
development of social interaction and verbal and nonverbal communication skills.
Affected individuals may adhere to inflexible, nonfunctional rituals or routine. They
may become upset with even trivial changes in their environment.” PDR Medical
Dictionary 171 (2d ed. 2000).

                                          -3-
Spero is able to maintain his current level of involvement in Ari’s life. (Id.) Both Dr.
Reaney and Mrs. Spero stress that consistency is important to Ari’s well-being.

       We agree with the district court that Spero’s role in Ari’s life is indispensable
because having a routine is invaluable to Ari’s further development – this conclusion
is supported by the medical evidence provided by his doctors, as well as by the first-
hand observations from his mother. We are convinced that a long-term departure of
Spero from his son’s life would cause an extreme setback for Ari and the rest of the
family. When one parent is critical to a child’s well-being, as in this case, that
qualifies as an exceptional circumstance justifying a downward departure. See
Haversat, 22 F.3d at 797 (finding exceptional family circumstances existed when the
defendant was considered an “irreplaceable” part of his wife’s treatment); United
States v. Sclamo, 997 F.2d 970, 972-74 (1st Cir. 1993) (finding the defendant’s
relationship with his developmentally challenged stepson to be critical to the child’s
development, and therefore warranting a downward departure due to exceptional
family circumstances).

                                  CONCLUSION

       We agree with the district court that Spero’s exceptional family circumstances
distinguish his case from the heartland of cases.4 Accordingly, we affirm.
                       ______________________________




      4
        Because we have determined that Spero’s exceptional family circumstances
provide a basis for the district court’s downward departure, we need not examine the
district court’s additional reasons for granting the departure.

                                          -4-
