                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 00-2822
                                  ___________

United States of America,              *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
            v.                         * District Court for the
                                       * District of Nebraska.
Blackbird Sheridan,                    *
                                       *
            Appellee.                  *
                                  ___________

                             Submitted: October 16, 2001

                                 Filed: October 26, 2001
                                  ___________

Before WOLLMAN, Chief Judge, BEAM, and HANSEN, Circuit Judges.
                             ___________

BEAM, Circuit Judge.

       Blackbird Sheridan, an enrolled member of the Omaha Tribe of Nebraska, pled
guilty to sexual abuse of a minor child more than four years younger than himself
within an Indian reservation, in violation of 18 U.S.C. §§ 2243(a) and 1153. In
addition to assigning Sheridan a criminal history category of I and a two-level
downward adjustment for acceptance of responsibility, the district court further
departed downward because the Sentencing Guidelines did not adequately account
for the conduct involved and because Sheridan had a "generally minimal criminal
history." The government appeals, contending the court based the departure on
improper grounds. Because we find the bases for departure improper, we remand for
resentencing.

       At sentencing, Sheridan moved for downward departure based upon his
acceptance of responsibility and the aberrational nature of this offense as compared
to his prior criminal history. In response, the prosecutor indicated that Sheridan had
not come forward until after the victim reported the crime, which the latter did only
"because he had chlamydia and had to explain chlamydia to his parents and how he
obtained it." At least initially, the court seemed concerned with the prosecutor's
insinuation that the victim had contracted the disease from Sheridan because the
record did not support that assertion. The court was also wary of the victim's
credibility because, although he incriminated Sheridan to explain his medical
condition, in his version of what took place, he could not have contracted the disease
from Sheridan. However, the court ultimately concluded:

             Based on the fact that the victim has chlamydia, which generally
      is a sexually-transmitted disease that results from contact with another
      individual that has chlamydia, and is generally more often the case than
      not an individual that has had a number of sexual encounters with
      various partners, thus develops the disease, I think that the victim in this
      case, although he does need to be protected, is in certainly a different
      category than a consensual act between two people where there isn't a
      pattern or history of sexual contact at least by the victim.

             So I believe that the sentencing guidelines don't adequately take
      into account the conduct that was involved here.

       We review a district court's departure decisions for abuse of discretion. United
States v. Allery, 175 F.3d 610, 613 (8th Cir. 1999). In most cases, we give substantial
deference to such decisions. Id.




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        A mitigating factor that the guidelines do not specifically approve will sustain
a downward departure if, given the facts of the particular case, the factor makes the
case sufficiently atypical–that is, one that takes the case out of the "heartland" of
usual cases. Koon v. United States, 518 U.S. 81, 94, 99-100 (1996); Allery, 175 F.3d
at 613. The guidelines provide some direction in that they include a non-exhaustive
list of encouraged and discouraged bases for departure. Koon, 518 U.S. at 94. A
court may depart based on an encouraged factor if the applicable guideline does not
already take such factor into account. Id. at 96. If the guideline has already taken
into account the encouraged factor, or if the factor is discouraged, the court should
depart "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. In
contrast, if the factor is unmentioned in the guidelines, the court must first consider
the "'structure and theory of both relevant individual guidelines and the Guidelines
taken as a whole,''' in order to "decide whether [the unmentioned factor] is sufficient
to take the case out of the Guideline's heartland," bearing in mind that departures
based on grounds not included in the guidelines will be "'highly infrequent.'" Id.
(citations omitted); accord Allery, 175 F.3d at 613.

       In this case, it is unclear whether the district court was suggesting that the
victim was promiscuous and, therefore, that one could infer he seduced Sheridan, or
that the victim's promiscuity placed him less in need of the protection afforded by the
statute and complementary guidelines. Whatever its logic, the court found that the
facts were sufficient to thrust the case outside of the guidelines' heartland. However,
we find neither interpretation sufficient to sustain a downward departure.

      Section 2A3.2 of the guidelines sets the base offense level for "Criminal Sexual
Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape)." In many
scenarios, victim provocation or misconduct is "an example of an encouraged
downward departure factor." Koon, 518 U.S. at 94; see also id. at 101 (interpreting
U.S. Sentencing Guidelines Manual [hereinafter U.S.S.G.] § 5K2.10 (1995)).

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However, "[v]ictim misconduct ordinarily would not be sufficient to warrant
application of [section 5K2.10] in the context of" section 2A3 criminal sexual abuse.
U.S.S.G. § 5K2.10 (2000); c.f. Allery, 175 F.3d at 612-13 (distinguishing sufficient
from insufficient grounds for departure, in part, based on specific approval, or lack
thereof, of the grounds in a guidelines policy statement). Furthermore, because
"section [2A3.2 of the guidelines] applies to consensual sexual acts prosecuted under
18 U.S.C. § 2243(a) that would be lawful but for the age of the victim," it already
adequately takes into account a victim's willingness to engage in the act. U.S.S.G.
§ 2A3.2 cmt. background; see also Sexual Abuse Act, Pub. L. No. 99-654, 1986
U.S.C.C.A.N. (100 Stat. 3660) 6196 ( stating that section 2243 "applies to behavior
that the participants voluntarily and willingly engage in").

       Here, the record does not support finding the victim's condition or actions to
be exceptional, if even relevant, so as to extract the case from the ordinary. Cf.
Allery, 175 F.3d at 613 (finding that, based on the "highly unusual factual
circumstances" of the case, the court did not abuse its discretion in finding the case
"lay outside the heartland of those cases for which the" applicable guideline was
intended). The victim's sexually transmitted disease–whether contracted before or
after this offense–has nothing to do with the offense for which Sheridan was
sentenced. We refuse to place under the rubric of "misconduct" the contraction of a
sexually transmitted disease, and we in no way see how such a malady can lead to the
conclusion that the victim provoked the encounter.

       If we interpret the district court's comments as suggesting the victim's
promiscuity somehow diminished his need for protection, we still find no justification
for the departure. No such factor is mentioned in the guidelines. We therefore
consider the structure and theory of the relevant individual guidelines and the
guidelines taken as a whole to determine whether a juvenile victim's sexual history
is sufficient to take the case out of the heartland.



                                         -4-
       At issue in Koon were downward departures for law enforcement officers who
had been convicted of criminally violating an arrestee's civil rights. 518 U.S. at 87-
88, 101. Relying in part on section 5K2.10's policy statement regarding a victim's
wrongful conduct, the Court concluded that the victim's flight from police, resisting
arrest, attempted escape, and original criminal infraction provided an acceptable
basis on which to depart.1 Id. at 86, 101-02, 104. There, the statute under which the
defendants were convicted was "unusual for its application in so many varied
circumstances," just as the applicable guideline range accounted for a variety of
scenarios. Id. at 101, 105. Therefore, the heartland of the applicable guideline
fluctuated depending on the defendant's conduct and, consequently, the district court
did not abuse its discretion when it differentiated between classes of cases in
departing downward. Id.

       However, "[m]ost Guidelines prescribe punishment for a single discrete
statutory offense or a few similar statutory offenses with rather predictable fact
patterns." Id. at 101. In Koon, the Court indicated that if the pertinent guideline had
covered punishment for only one type of case, it likely would have been a close
question whether the victim's actions would have sufficed to take the case out of the
heartland. Id. at 105.

       Here, the heartland is not as fluid as in Koon. Although the sexual abuse
statutory provisions and guidelines as a whole cover varied circumstances, they
delineate under separate provisions the various circumstances pertinent to each
offense, unlike the umbrella statute at issue in Koon. Compare 18 U.S.C. §§ 2241-45,
with 18 U.S.C. § 242; see 1986 U.S.C.C.A.N. 6197 (explaining that the section a
defendant should be charged under depends on the presence or absence of various

      1
       While in Koon the Court was analyzing the effect of a victim's misconduct, a
mentioned factor, on a defendant's downward departure, the Court's analysis provides
some guidance in considering the structure and theory of the applicable guidelines
and the guidelines as a whole.

                                         -5-
factors). It is clear that we cannot preclude, as a matter of law, consideration of a
factor that the guidelines do not specifically prohibit. Koon, 518 U.S. at 106-07.
However, the guidelines reveal no hint that a victim's venereal health or sexual
history is a proper basis for departure, nor that the heartland consists of the statutory
rape of a chaste minor. Indeed, the underlying statute "is intended to reach older,
mature persons who take advantage of younger, immature persons, but not to reach
sexual activity between persons of comparable age." 1986 U.S.C.C.A.N. at 6196.
That the victim has otherwise been taken advantage of by other older persons, or has
had sexual relations with other persons of ages comparable to his own, has no bearing
on Sheridan's offense and sentence. The legal or illegal actions of others do not make
this case so exceptional as to wrest it from the heartland.

       Finally, a defendant's absence of criminal history does not provide a basis for
a downward departure. Allery, 175 F.3d at 614. "[A] departure below the lower limit
of the guideline range for Criminal History Category I on the basis of the adequacy
of criminal history cannot be appropriate" because this category is set for a first-time
offender. U.S.S.G. § 4A1.3. And, although sufficiently unusual post-offense
rehabilitation that occurs before sentencing may take a case out of the guidelines'
heartland for downward departure purposes, a defendant's mere failure to break the
law after his conviction does not. Allery, 175 F.3d at 614. The court, therefore,
abused its discretion when it departed from the guidelines based on Sheridan's
minimal criminal history.

      For these reasons, we remand for resentencing consistent with this opinion.

      A true copy.

             Attest:

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

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