                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                 No. 03-1336
                                 ___________
                                       *
                                       *
United States of America,              *
                                       *
            Plaintiff-Appellant,       *
                                       *
v.                                     *   Appeal from the United States
                                       * District Court for the Southern
Blaine Lee Willey,                     *   District of Iowa.
                                       *
            Defendant-Appellee.        *
                                 ___________

                              Submitted: October 21, 2003

                                   Filed: December 2, 2003
                                    ___________

Before MORRIS SHEPPARD ARNOLD, BOWMAN, and MURPHY, Circuit
Judges.
                        ___________
MURPHY, Circuit Judge.

       In this case the government appeals a downward departure granted by the
district court. Blaine Lee Willey was convicted by a jury of conspiracy to distribute
500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(B) and 846.
After imposing a two level sentencing enhancement for obstruction of justice and
declining to credit Willey for acceptance of responsibility, the district court departed
downward and sentenced him to 60 months. We reverse and remand.
       Willey distributed cocaine in Iowa City, Iowa from approximately June 1997
to October 1998. He received cocaine on a weekly basis from Mark Murphy, a
Chicago dealer, and supplied it to Thomas Kaut for redistribution. Willey usually
supplied Kaut with approximately two to four grams of cocaine each week and
charged him roughly $800 per half ounce of cocaine. Most of the transactions
occurred at Kaut's home. Some were witnessed by Tim Anding, a government
informant who purchased cocaine from Kaut which he had obtained from Willey.
The laboratory analysis of the three purchases Anding made from Kaut showed that
they involved approximately 4.8, 5.41, and 2.05 grams of cocaine. Willey also used
his place of business in Cedar Rapids to conduct drug transactions, and he sold
cocaine to Kaut there on at least three occasions. When Mark Murphy was arrested
and imprisoned on a drug charge in June 1998, his brother Scott became Willey's
source of cocaine. Willey bought approximately 1 to 1.5 ounces of cocaine from
Scott Murphy on at least four occasions after Mark went to prison.

       Willey's wife learned he was using cocaine in late 1998. She confronted him
about it and gave him an ultimatum to stop using drugs. Shortly thereafter, Willey
quit using cocaine and voluntarily separated himself from the Iowa City drug scene.

       The FBI investigated Willey in March 2000. Willey told an investigating agent
that he had purchased and used cocaine in Iowa City two years before but that he had
since stayed away from the drug scene. He did not reveal that he had sold cocaine,
however. The reason he gives for not having provided information on his drug
dealing or for not assisting the federal investigation is that he feared for his life.
Willey had no further contact with law enforcement until he was indicted and arrested
in April 2002.

       At trial, Thomas Kaut, Mark Murphy, and Tim Anding testified as to Willey's
involvement in cocaine distribution. Their testimony was corroborated by pen
registers, wire interception of several phone calls between Willey and Kaut, and

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surveillance of Kaut's home. Willey also testified. He admitted to knowing both
Kaut and Mark Murphy, but denied knowing Scott Murphy. He claimed that he had
merely purchased small quantities of cocaine from Kaut for his own personal use. He
also testified that his phone calls with Kaut dealt with real estate, not cocaine. This
testimony was in direct conflict with evidence showing that the phone conversations
were not about real estate, and Kaut, Murphy, and Anding all testified that they never
saw Willey use any cocaine. At the conclusion of the trial, the jury found Willey
guilty of conspiracy to distribute 500 grams or more of cocaine.

       Because of the amount of cocaine the jury attributed to Willey, his base offense
level under the federal sentencing guidelines was 26. The district court imposed a
two level enhancement for obstruction of justice under § 3C1.1 because Willey had
testified falsely at trial. See United States Sentencing Guidelines Manual, § 3C1.1
(2002) [USSG]. The court declined to grant an acceptance of responsibility
adjustment under USSG § 3E1.1. Willey sought a downward departure for post
offense conduct and minor participation in the drug conspiracy. See USSG § 5K2.0;
§ 3B1.2.

       At the sentencing hearing, the district court addressed possible bases for
departing downward. The court stated that it could not grant a downward departure
"with regard to the post offense conduct in connection with that being an offshoot of
acceptance of responsibility." Sentencing Transcript at 26. Willey had been given
an opportunity long before trial to accept responsibility by pleading guilty and
cooperating with law enforcement officials, but he chose not to do so. The district
court also denied Willey's request for a downward departure for minor participation
on the basis that such a departure would only be appropriate if he had played a small
role in the transactions, such as that of a carrier.

      The district court asked the parties to address whether the overall
circumstances removed Willey's case from the heartland so as to warrant a downward

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departure. The government argued that Willey's case was not so exceptional as to be
outside the heartland because he failed to assist the FBI with its investigation and to
accept responsibility and he testified falsely at trial. The government stated that he
should not be able to benefit just because he had not been prosecuted closer to the
time of his drug offense, and a downward departure would undermine the
enhancement for obstruction of justice. The government requested that he be
sentenced at the low end of the guideline range to 78 months. Willey stated that he
had not misled or obstructed the FBI investigation but had declined to assist the
prosecution because of a genuine fear for his life. He also argued that he had
dramatically altered his lifestyle by ending his drug habit and separating himself
voluntarily from the Iowa City drug scene. Thirty four letters in his support were
submitted from various individuals.

       The district court granted a downward departure under USSG § 5K2.0 on the
ground that Willey's circumstances took him outside the heartland of cases. The court
cited a number of discouraged guideline factors, including Willey's relationship with
his wife, educational achievement, professional success, and community status. It
ruled that these factors taken together with his voluntary drug rehabilitation removed
his case from the heartland. The government appeals the departure. It contends that
a downward departure was not warranted because Willey had obstructed justice and
did not accept responsibility and the court relied on factors discouraged by the
guidelines. Willey counters that his voluntarily giving up drugs two years prior to
any contact with law enforcement officials and that his good standing in the
community for the past few years merited the departure.

       Under the PROTECT Act, 18 U.S.C. § 3742(e) as amended by § 401(d) of the
Act, 108 Pub. L. 21, 117 Stat. 650, 670, April 30, 2003, we review de novo the
application of the guidelines to the facts and review the district court's factual
findings for clear error. United States v. Gonzales-Ortega, 346 F.3d 800, 801 (8th
Cir. 2003); United States v. Hutman, 339 F.3d 773, 775 (8th Cir. 2003); United States

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v. Aguilar-Lopez, 329 F.3d 960, 962 (8th Cir. 2003). This standard of review applies
even though Willey was sentenced before the Act became law because it is procedural
in nature. Hutman, 339 F.3d at 775. Unless otherwise barred, a court may depart
from the sentencing guidelines if it "finds that there exists an aggravating or
mitigating circumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission." 18 U.S.C. § 3553(b); see also USSG
§ 5K2.0.

        Downward departures for exceptional post offense conduct have been
approved where a defendant has demonstrated a fundamental change in attitude by
genuinely accepting responsibility for his crimes, ending all criminal activity, and
radically altering his lifestyle. See United States v. DeShon, 183 F.3d 888, 890 (8th
Cir. 1999); United States v. Kaptizke, 130 F.3d 820, 823 (8th Cir. 1997). Although
Willey undoubtedly altered his lifestyle by ending his drug use, the district court's
finding that he obstructed justice by testifying falsely at his trial was not clearly
erroneous. That finding shows that Willey's post offense rehabilitation was not
sufficient to prevent his violating the law by giving false testimony. "The touchstone
of extraordinary rehabilitation is a fundamental change in attitude." United States v.
Craven, 239 F.3d 91, 99 (2d Cir. 2001). Willey was also not forthcoming earlier
when the FBI questioned him about his connection to drugs. We conclude that
Willey’s rehabilitation record was not sufficient to support a downward departure.

       The question then is whether the fact that Willey had ended his drug use could
be combined with the several discouraged factors relied on by the district court to
support a downward departure. The court relied on Willey's professional credentials
as an engineer, his college education, and the support of his wife and family. These
factors have been specifically considered by the Sentencing Commission and
designated by it as discouraged factors for departures. See USSG § 5H1.5
(employment); § 5H1.2 (education); and § 5H1.6 (family ties and responsibilities).
Willey cites cases predating the PROTECT Act which were affirmed although

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discouraged factors were among the reasons for a downward departure, but these
were cases where the defendant was credited for acceptance of responsibility and
there was no enhancement for obstruction. See United States v. Decora, 177 F.3d
676, 679-80 (8th Cir. 1999); United States v. Big Crow, 898 F.2d 1326, 1331-32 (8th
Cir. 1990).

       The circumstances in Willey's case are not of a kind or degree not adequately
considered by the Commission in providing for discouraged factors. See USSG §
5K2.0. The discouraged factors and incomplete post offense rehabilitation are not
enough to support a downward departure here. Accordingly, we reverse and remand
for resentencing within the guideline range.
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