                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1461
                                   ___________

United States of America,               *
                                        *
             Appellant,                 * Appeal from the United States
                                        * District Court for the Western
      v.                                * District of Missouri.
                                        *
James William Rogers,                   *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: December 16, 2004
                                Filed: March 16, 2005
                                 ___________

Before MELLOY, BOWMAN, and BENTON, Circuit Judges.
                         ___________

BENTON, Circuit Judge.

        The district court granted James William Rogers's motion for a downward
departure under U.S.S.G § 5K2.0, after he pled guilty to being a felon in possession
of a firearm, 18 U.S.C. § 922(g)(1). The United States appeals, claiming an absence
of extraordinary or atypical rehabilitation. Jurisdiction being proper under 18 U.S.C.
§ 3742(b) and 28 U.S.C. § 1291, this court reverses and remands.

      Eight months after Rogers was paroled on a state felony drug charge, a
conservation agent found him in possession of a rifle after he had been deer hunting.
Despite Rogers's pleas, the agent confiscated the rifle and contacted the parole
officer.

        The pre-sentence report assigned a total offense level 17 and criminal history
category VI, resulting in a sentence range of 51 to 63 months. Rogers moved for a
downward departure based on extraordinary post-offense rehabilitation. At
sentencing, he presented 13 letters from friends and family stating that he had turned
his life around by caring for his dying father, rebuilding his fiancee's home (which the
insurance company paid him to do), and remaining drug-free for four years (including
completion of drug-rehabilitation and group-therapy programs). A petition signed by
186 persons recited that Rogers "has changed his life," and asked for leniency in
sentencing. The district court granted Rogers's motion, imposing five years
probation.

      After an adjustment – per the plea agreement – under U.S.S.G § 3E1.1 for
acceptance of responsibility, the district court based its departure on U.S.S.G § 5K2.0,
extraordinary rehabilitation. The government appeals.

       While this appeal was pending, the Supreme Court held that the Federal
Sentencing Guidelines are no longer mandatory. United States v. Booker, 125 S.Ct.
738, 756-57 (2005). The guideline range "no longer dictates the final sentencing
result but instead is an important factor that the sentencing court is to consider along
with the factors contained in § 3553(a) in reaching the sentencing result." United
States v. Rodriguez, 2005 WL 272952, at *9 (11th Cir. Feb. 4, 2005), citing Booker,
125 S.Ct. at 764-65. A sentencing court must consider the Guidelines, determine the
applicable range, but may depart from the suggested Guideline range. United States
v. Mares, 2005 WL 503715, at *7 (5th Cir. Mar. 4, 2005). Sentences are reviewed
for unreasonableness. Booker, 125 S.Ct. at 765-66. The standard guiding
unreasonableness is 18 U.S.C. § 3553(a). Id.


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       A departure under section 5K2.0 is proper where a district court finds "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
U.S.S.G § 5K2.0(a)(3). Because the Commission accounted for ordinary
post-offense rehabilitation under section 3E1.1, a defendant's rehabilitation must be
exceptional enough to be atypical. See § 5K2.0(d)(2), United States v. DeShon, 183
F.3d 888, 889 (8th Cir. 1999). The district court must explain any extraordinary or
atypical factors justifying departure. § 5K2.0(e), citing 18 U.S.C. § 3553(c)(2).

       The facts in this case do not show extraordinary or atypical rehabilitation
justifying a downward departure. Rogers's reuniting with family and remaining
drug-free, while commendable, are not extraordinary or atypical. See United States
v. Patterson 315 F.3d 1044, 1049 (8th Cir. 2003). In the absence of extraordinary or
atypical post-offense rehabilitation, the departure was impermissible. However,
because the Guidelines are not mandatory, the sentence is reviewed for
unreasonableness.

      The sentence is unreasonable when measured against the factors of
reasonableness set forth in section 3553(a). The possessing-rifle-after-hunting is
Rogers's second parole violation in eight months. Earlier, Rogers was found
trespassing in a restricted area at Truman Dam, while two men – also on probation for
manufacturing a controlled substance – fished nearby with his son in a no-fishing
area. Trespassing with felons does not demonstrate respect for the law. See 18
U.S.C. § 3553(a)(2)(A).

      Rogers's second parole violation illustrates that parole/probation is not
adequate deterrence. See 18 U.S.C. § 3553(a)(2)(B). He understood the terms of
parole, yet knowingly possessed the rifle. Moreover, as the violations show,
probation would not protect the public from criminal conduct. See 18 U.S.C. §
3553(a)(2)(C).

                                         -3-
       The sentence of probation does not adequately address the history and
characteristics of the defendant. See 18 U.S.C. § 3553(a)(1). Aside from (admitted)
use of marijuana, cocaine, and methamphetamine, Rogers has convictions for assault,
stealing, resisting arrest, attempting to manufacture methamphetamine, and
trespassing. While the district court was not bound to the suggested range of 51 to
63 months imprisonment, probation is unreasonable.

      The sentence of probation does not properly consider Congress's desire to
avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(6). It is
unreasonable to expect that defendants with similar records, guilty of similar conduct,
would receive probation.

      By the factors in section 3553(a), the district court's sentence was
unreasonable. The judgment is VACATED and REMANDED for re-sentencing.

                       ______________________________




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