                         United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   _____________

                                  No. 97-1099MN
                                  _____________

United States of America,                *
                                         *
                    Appellant,           * Appeal from the United States
                                         * District Court for the District
      v.                                 * of Minnesota.
                                         *
Simon Frank Weise,                       *
                                         *
                    Appellee.            *
                                   _____________

                            Submitted: October 24, 1997
                                Filed: October 30, 1997
                                 _____________

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

FAGG, Circuit Judge.

       A jury convicted Simon Frank Weise of second-degree murder within Indian
country in violation of 18 U.S.C. §§ 1111 and 1153 (1994). At Weise’s initial
sentencing, the district court departed downward from the applicable Guidelines range
of 168 to 210 months and sentenced Weise to 121 months’ imprisonment. See U.S.
Sentencing Guidelines Manual (U.S.S.G.) § 5K2.0. The district court based the §
5K2.0 departure on Weise’s record of steady employment and maintenance of family
ties and responsibilities despite the difficulties of life on the Red Lake Reservation.
See United States v. Big Crow, 898 F.2d 1326, 1331-32 (8th Cir. 1990). The district
court also concluded Weise’s conduct was aberrant behavior warranting departure.
The Government appealed the § 5K2.0 departure decision. We held Weise’s conduct
was not aberrant behavior supporting departure. See United States v. Weise, 89 F.3d
502, 507 (8th Cir. 1996). We also held the record was inadequate to support departure
based on Big Crow and remanded to the district court for a refined assessment on an
expanded record. See id. On remand, the district court held an evidentiary hearing
and again departed downward under § 5K2.0 to a sentence of 121 months. The
Government once more appeals. We reverse and remand for imposition of a sentence
within the applicable Guidelines range.

       U.S.S.G. § 5K2.0 permits district courts to depart downward from the
applicable Guidelines range if 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.” See also 18 U.S.C. § 3553(b) (1994) (statutory authority
for departure). The Commission names certain potential mitigating factors in the
Guidelines and either forbids, discourages, or encourages their consideration. See
Koon v. United States, 116 S. Ct. 2035, 2044-45 (1996). Factors that can never be
bases for departure include race, creed, religion, socioeconomic status, U.S.S.G. §
5H1.10; lack of guidance as a youth and similar circumstances indicating a
disadvantaged upbringing, id. § 5H1.12; drug or alcohol dependence, id. § 5H1.4; and
economic hardship, id. § 5K2.12. See Koon, 116 S. Ct. at 2044. The Guidelines
discourage consideration of a defendant’s employment record, U.S.S.G. § 5H1.5;
family ties and responsibilities and community ties, id. § 5H1.6; education and
vocational skills, id. § 5H1.2; and civic, charitable, or public service record, id. §
5H1.11. See Koon, 116 S. Ct. at 2045. Discouraged factors should be relied on only
in exceptional cases, when “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. To warrant departure based on a discouraged, encouraged, or unmentioned factor,
“the factor, as occurring in the particular circumstances, [must] take[] the case outside
the heartland of the applicable Guideline.” Id. at 2051.


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        At resentencing, the district court again based its departure decision on the view
that Weise’s conduct was aberrant behavior, an unmentioned factor for a serious crime
like murder. See United States v. Kalb, 105 F.3d 426, 429 (8th Cir. 1997). The district
court was not free to revisit aberrant behavior, however, because we foreclosed it in
the first appeal of Weise’s sentence. There, we held Weise’s conduct was not aberrant
behavior as defined in our earlier case law. See Weise, 89 F.3d at 507. Thus, the
district court improperly considered the factor of aberrant behavior for departure
purposes at both of Weise’s sentencings.

        The district court also based its departure at resentencing on other grounds:
Weise’s employment history, his family ties, his reputation in the community, and the
“extraordinary problems and difficulties [he] struggled against and overcame on the
Red Lake Reservation.” Although Weise’s family was loving and supportive and had
all the necessities, the district court stressed that Weise’s parents were very poor and
sometimes abandoned their children overnight when abusing alcohol. The family of
eight lived in a small, one-room house without electricity. The district court was
impressed that, despite Weise’s disadvantaged upbringing and the reservation’s poor
economic conditions, including an unemployment rate around 60%, Weise had worked
steadily for about four and a half years for an employer willing to rehire him, never
gone on welfare, and provided for four children and his long-time companion. The
district court acknowledged its belief that if Weise did not live on an Indian reservation,
his case would not fall outside the Guidelines heartland.

       We conclude the district court abused its discretion in granting the downward
departure on these additional grounds. The district court could not use the prohibited
factors of Weise’s race, socioeconomic status, economic hardship, or disadvantaged
upbringing as bases for departure under § 5K2.0. See Koon, 116 S. Ct. at 2044-45.
Even taking Weise’s presence on the reservation as an unmentioned factor, the record
does not show that anything about the reservation environment skewed Weise’s
opportunities in a way that was strikingly different from families of similar means and

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circumstances living elsewhere. The district court’s other reasons for departure--
Weise’s reputation in the community, stable employment history, and family ties and
responsibilities--are discouraged factors that warrant departure only in extraordinary
circumstances. See id. at 2045. The record does not support departure based on
Weise’s community reputation. Unlike the situation in Big Crow, no community
leaders sent unsolicited letters to the sentencing court on Weise’s behalf. See 898 F.2d
at 1332. At most, a tribal prosecutor testified at resentencing that he was surprised to
hear Weise was charged with homicide because Weise’s lengthy tribal record consisted
of misdemeanor charges and, unlike most tribal defendants, Weise acted responsibly
by often pleading guilty. Other individuals testified Weise is a good mechanic, a
reliable worker, and nonviolent whether sober or intoxicated. This is simply not
enough to establish Weise’s standing in the community. Weise’s family ties and
responsibilities and stable employment are insufficiently unusual to warrant departure.
See United States v. White Buffalo, 10 F.3d 575, 577 (8th Cir. 1993). Although we
give substantial deference to a district court’s determination that a discouraged factor
justifies departure because it is present in some unusual or exceptional way, see Koon,
116 S. Ct. at 2046-47, in Weise’s case we conclude the district court abused its
discretion in determining these factors are “present to an exceptional degree” and
nothing makes his case exceptionally “different from the ordinary case where the
factor[s] [are] present,” id. at 2045.

       Having analyzed the potential departure factors singly and in combination, we
conclude the district court abused its discretion in deciding Weise’s case lies outside
the heartland of the applicable Guideline. We thus reverse and remand to the district
court for further proceedings consistent with this opinion.




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A true copy.

      Attest:

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




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