                       United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   _____________

                                  No. 98-3765WM
                                  _____________

United States of America,                *
                                         * On Appeal from the United
             Appellant,                  * States District Court
                                         * for the Western District
      v.                                 * of Missouri.
                                         *
Sherry Lynn Collins,                     * [Not to be Published]
                                         *
             Appellee.                   *
                                    ___________

                            Submitted: November 1, 1999
                                Filed: December 2, 1999
                                    ___________

Before McMILLIAN, RICHARD S. ARNOLD, and HANSEN, Circuit Judges.
                           ___________

PER CURIAM.


      Sherry Lynn Collins pleaded guilty to one count of mail fraud, in violation of 18
U.S.C. § 1341. The presentence investigation report (PSR) recommended an
imprisonment range of eight to fourteen months, and identified no factors warranting
departure. Collins objected, offering factors she believed would warrant a downward
departure under U.S. Sentencing Guidelines Manual § 5K2.0, p.s. (1997).

      The District Court rejected the grounds offered by Collins for departure, but
departed downward nonetheless, stating: “Well, I’ve looked at the sentencing
guidelines, and I don’t find any reason whatsoever to depart downward. But, I’m going
to depart downward.” The Court sentenced Collins to four years probation, with six
months to be spent in home confinement. In its written judgment, the Court noted that
it had departed downward because “it would not be in the public interest to send the
defendant to prison.” The government appeals, arguing that the Court erred in
departing downward.

       We review the District Court’s decision to depart from the Guidelines for abuse
of discretion. See Koon v. United States, 518 U.S. 81, 99 (1996). An error in
determining whether a factor constitutes a permissible basis for departure is an error
of law that is, by definition, an abuse of discretion. See id. at 100. If the Court relied
upon an invalid factor, a remand is required unless the error was harmless, in that the
error did not affect the Court’s selection of the sentence imposed. See Williams v.
United States, 503 U.S. 193, 203 (1992).

       We conclude that the District Court abused its discretion in departing downward.
Departing without “any reason whatsoever” is an abuse of discretion, see United States
v. Morken, 133 F.3d 628, 629 (8th Cir. 1998) (abuse of discretion where record
revealed no valid basis for district court’s decision to depart downward), and “the
public interest” (the phrase that the Court used at sentencing to refer to the economic
costs of incarcerating Collins) is not a factor which the Court should have considered
as a basis for departure, see United States v. Wong, 127 F.3d 725, 728 (8th Cir. 1997)
(decision whether tax dollars should be spent on costs of incarceration is legislative
rather than judicial; district court should not have considered it as basis for departure
from Guidelines). We are unable to conclude from the record that this error was
harmless, because it appears to have affected the Court’s selection of the sentence
imposed.

       Accordingly, we reverse the judgment of the District Court and remand for
resentencing.

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A true copy.

      Attest:

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




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