                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                   ___________

                                  No. 02-1912 NE
                                   ___________

United States of America,             *
                                      *
            Plaintiff-Appellant,      *
                                      * Appeal from the United States
       v.                             * District Court for the District
                                      * of Nebraska.
Ira H. Roberts,                       *
                                      *
            Defendant-Appellee.       *
                                 ___________

                             Submitted: October 9, 2002
                                Filed: December 13, 2002
                                 ___________

Before MURPHY, BEAM, and MELLOY, Circuit Judges.
                          ___________

MURPHY, Circuit Judge.


      Ira H. Roberts pled guilty to aggravated sexual abuse of a child in violation of
18 U.S.C. §§ 1153 & 2241(c). The district court departed downward from the
guideline range it had calculated and sentenced Roberts to 45 months. The
government appeals, and we reverse.

       The acts that were the basis for the charges in this case occurred in May 1997
on the Omaha Indian Reservation after Roberts went out drinking with Gardner Grant
and his girlfriend. The three ended up at the girlfriend's house where they continued
drinking and eventually went to sleep on a blanket on the floor. P.S., the four year
old daughter of Grant's girlfriend, was also sleeping on the blanket, and Roberts woke
up during the night and began to touch her. He removed her top and felt her chest
with his hands and then pulled off the rest of her clothing and lifted her on top of him.
He placed his erect penis between her legs against her vagina and "mov[ed] his body
in a slow motion" for five to ten minutes. Presentence Investigation Report (PSR) at
5. Roberts claims that at this point he realized how small she was and that it was not
right to have sex with her. He disengaged himself and returned P.S. to her place next
to her mother and went back to sleep. The mother of P.S. says that she was awakened
by her crying and that P.S. told her that Roberts had tried to take off her underwear
and had grabbed at her legs. The mother woke up Grant, and he took Roberts away
from the house. Nothing was reported to the authorities at the time.

       P.S. later moved in with her father who lived in Lincoln, Nebraska. When he
initiated a discussion about safety over two years after Roberts had molested P.S., she
told her father what had happened to her. He immediately notified the Lincoln police
who contacted the FBI. Although neither P.S. nor her mother could remember
Roberts' name, the FBI eventually discovered his identity. In an interview with an
FBI agent Roberts admitted that he had molested P.S., but said that in "his state of
intoxication he possibly may have been thinking he was having sex with his ex-
girlfriend…or with Grant's girlfriend who was laying next to him." PSR at 5.

       A grand jury indicted Roberts for aggravated sexual abuse of a child in
violation of 18 U.S.C. §§ 1153 & 2241(c). Roberts pled guilty to the charge under
a plea agreement which anticipated that he would have an adjusted offense level of
24, after a three level reduction for acceptance of responsibility. It was projected that
Roberts would have a criminal history category of II and a resulting sentencing range
of 57 to 71 months.




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       The matter came on for sentencing after completion of the PSR. The PSR
reported that Roberts' criminal history placed him in category III. See United States
Sentencing Commission, Guidelines Manual, § 4A1.1 (2001) [U.S.S.G.]. The district
court indicated that it would nevertheless apply category II in calculating his
guideline range, and the government did not object. Roberts moved for a downward
departure and hoped to be sentenced to 30 months in order to qualify for a shock
incarceration program. He urged in particular that his offense "was an act of aberrant
behavior, more of a substance abuse issue than pedophilia," and that he had made
"great post arrest rehabilitative efforts." Sentencing Tr. (ST) at 9.

        The district court continued the sentencing hearing and solicited briefs from
the parties on the downward departure issues. At the reconvened hearing, the court
adopted the factual statements in the PSR, ST at 21-22, and heard arguments on the
departure motion. It decided to grant the motion on the basis of an aggregation of
factors which it said were individually insufficient, but together were enough to
remove the case from the heartland of the offense guideline. The factors it mentioned
were: (1) aberrant behavior, (2) diminished capacity, (3) significant post offense
efforts at rehabilitation, (4) recurrent depressive disorder, and (5) avoidance of an
extended investigation and trial. The court concluded "that the offense in my opinion
is not typical," ST at 34, and "there is enough evidence here to say that this is outside
the heartland," though not by "very much." Id. at 35. After ruling that Roberts was
entitled to a "two point reduction" and a 41 to 51 month sentencing range, the court
sentenced Roberts to 45 months.1



      1
        It is not clear what the court meant by a "two point reduction" or how it
arrived at a 41-51 month sentencing range. A two level reduction to level 22 would
have yielded a sentencing range of 46 to 57 months. U.S.S.G. ch. 5, pt. A (2001). A
sentencing range of 41-51 months would only have been available with an adjusted
offense level of 21, and Roberts could only have reached level 21 if he had received
a three level reduction. See id.

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        The government appeals the court's decision to depart downward below 57
months, the bottom point of the sentencing range foreseen in the plea agreement. It
argues that none of the factors mentioned by the district court were sufficient to
warrant a departure and that inadequate factors cannot be added together to remove
the case from the heartland. Roberts responds that the decision to depart should be
treated with deference under Koon v. United States, 518 U.S. 81, 99 (1996), that he
is entitled to a departure on the basis of aberrant behavior, and that the combination
of factors cited by the district court was adequate under the totality of the
circumstances.

       We review a departure from the guidelines for abuse of discretion. See United
States v. Sheridan, 270 F.3d 669, 671 (8th Cir. 2001). "However, 'whether a factor
is a permissible basis for departure under any circumstances is a question of law, and
[we] need not defer to the district court's resolution of the point.'" United States v.
Buckendahl, 251 F.3d 753, 757 (8th Cir. 2001) (quoting Koon, 518 U.S. at 100); see
also United States v. Diaz-Diaz, 135 F.3d 572, 580 (8th Cir. 1998) (de novo review).

       The sentencing guidelines "'specify an appropriate sentencing range for each
class of convicted persons based on various factors related to the offense and the
offender.'" Koon, 518 U.S. at 92 (quoting U.S.S.G. ch. 1, pt. A (1995)). A
sentencing court should "treat each guideline as carving out a 'heartland,' a set of
typical cases embodying the conduct that each guideline describes." U.S.S.G. ch.1,
pt. A(4)(b) (2001). "When a court finds an atypical case, one to which a particular
guideline linguistically applies but where conduct significantly differs from the norm,
the court may consider whether a departure is warranted." Id. Specifically, a
departure is appropriate where:

      the court finds "that there exists an aggravating or mitigating
      circumstance of a kind, or to a degree, not adequately taken into



                                         -4-
      consideration by the Sentencing Commission in formulating the
      guidelines that should result in a sentence different from that described."

U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). Departures cannot be based on
grounds explicitly precluded by the guidelines, however. See United States v.
Dillard, 975 F.2d 1554, 1555 (8th Cir. 1992) (§ 5K2.0 diminished capacity departure
precluded by § 5K2.13 if violent offense is involved); see also United States v.
Petersen, 276 F.3d 432, 436-37 (8th Cir. 2002) (same). When a potential factor is
already taken into account or specifically discouraged by the guidelines, the court
may 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." Koon,
518 U.S. at 96.

       The first factor relied on by the district court was aberrant behavior. The court
stated that "what seems to me to be somewhat atypical in this case is that you have
an individual where it appears to be an isolated act, at least from all the evidence that
I've seen." ST at 28-29. A departure for aberrant behavior is specifically precluded
by the guidelines if a defendant has more than one criminal history point, see
U.S.S.G. § 5K2.20, and Roberts had six criminal history points at the time he was
sentenced. He urges that his criminal history includes mostly alcohol related offenses
and nothing similar to the instant offense, but the guidelines do not distinguish crimes
in this way and instead require that his prior offenses be taken into account. See id.
When the Sentencing Commission created the aberrant behavior guideline, it
specifically limited the circumstances in which it can be used. The guideline itself
rules out its application to offenses involving serious bodily injury or death, use of
a firearm or other dangerous weapon, and serious drug trafficking, as well as to
offenders with a prior felony conviction or more than one criminal history point. See
id. Because Roberts had six criminal history points, aberrant behavior was not an
available ground on which to base a downward departure. See U.S.S.G. App. C,
amen. 604 ("the restrictions on criminal history reflect a Commission view that


                                          -5-
defendants with significant prior criminal records should not qualify for a departure
premised on the aberrant nature of their current conduct"); Dillard, 975 F.2d at 1555.

       Although the district court mentioned the issue of diminished capacity at the
sentencing hearing, ST at 34, it did not make any finding that Roberts acted with a
diminished capacity. It recognized that Roberts' "intoxication shouldn't play into the
court's consideration because it was voluntarily induced," id., and § 5K2.13 of the
sentencing guidelines specifically precludes a downward departure if a defendant's
"significantly reduced mental capacity was caused by the voluntary use of drugs or
other intoxicants." The guidelines also rule out alcohol dependence or abuse as a
basis for departure. See U.S.S.G. § 5H1.4. Finally, the district court noted Roberts'
recurrent problems with depression, but it found that there was no "evidence that
there was diminished capacity or mental illness at the time of the alleged incident."
ST at 33-34.

       The third listed factor was post offense rehabilitation. Rehabilitation efforts
after an offense are relevant to whether a defendant has accepted responsibility. See
U.S.S.G. § 3E1.1 cmt. n.1(g). Because the guidelines already account for
rehabilitation under § 3E1.1, however, a departure can be granted only if there are
rehabilitative efforts "exceptional enough to be atypical of cases in which the
acceptance of responsibility reduction is usually granted." United States v. Kapitzke,
130 F.3d 820, 823 (8th Cir. 1997). The district court stated that "[a]nother issue that
takes this out of the typical case" was Roberts' efforts at rehabilitation by maintaining
sobriety for some months and by going to mental health counseling. ST at 35. The
court nevertheless concluded that it could not say his efforts at post offense
rehabilitation were extraordinary "because he's not working, he has a son and
apparently is not really providing for the child," id., and we see no abuse of discretion
with respect to the finding that his rehabilitation efforts were not extraordinary. The
court also did not find his efforts "exceptional enough to be atypical," see Kapitzke,
130 F.3d at 823, and we note that they were limited to those specifically mentioned

                                          -6-
in the comments to § 3E1.1 (counseling and drug treatment) and were apparently
required as a condition of his release.

       Another cited factor for departure was that Roberts "has a mental condition
with respect to his recurrent depressive disorder." ST at 35. In rejecting mental
condition as a basis for a diminished capacity departure, the court referred to Roberts'
recurrent depression but found that there was no evidence he was suffering from it at
the time he abused P.S. Moreover, the guidelines specify that "[m]ental and
emotional conditions are not ordinarily relevant in determining whether a sentence
should be outside the applicable guideline range." U.S.S.G. § 5H1.3. This ground
for departure was not appropriate unless Roberts' mental condition were "present to
an unusual degree." U.S.S.G. § 5k2.0; see also Koon, 518 U.S. at 96 (discouraged
factors must be present to exceptional degree). The district court made no such
finding and in fact stated that it had found no evidence that Roberts was experiencing
depression at the time of the offense.

        The final factor was that Roberts' cooperation had spared the victim and her
family some of the trauma "connected with this type of investigation…when trying
to confirm and bring to justice an individual that committed an offense against a child
that is of such a tender age." ST at 35. Although § 5K2.16 provides for a departure
upon "voluntary disclosure of [the] offense," that provision is specifically limited to
disclosures made prior to the discovery of an offense and departure under it is
unavailable if the disclosure occurred in the course of an investigation. The
guidelines account more generally for cooperation with authorities by permitting a
reduction for acceptance of responsibility. See U.S.S.G. § 3E1.1. A defendant is
entitled to a two level reduction for "truthfully admitting the conduct comprising the
offense," U.S.S.G. § 3E1.1 cmt n. 1(a), and to a further one level reduction for "timely
notifying authorities of his intention to enter a plea of guilty, thereby permitting the
government to avoid preparing for trial…." U.S.S.G. § 3E1.1(b)(2). Roberts received
the full three level reduction for acceptance of responsibility, and a departure on the

                                          -7-
same basis would only be appropriate if his acceptance were of "a degree not
adequately taken into consideration by the Sentencing Commission." Petersen, 276
F.3d at 436 (quoting U.S.S.G. § 5k2.0). The district court did not make such
findings, and the record reflects that Roberts confessed only after being approached
by an investigating FBI agent, then attempted to minimize his responsibility by saying
he might have confused the four year old child with an adult woman, and pled guilty
only after reaching a plea agreement that decreased his exposure to jail time by
underestimating his criminal history.

      The guidelines do permit consideration of an aggregation of factors in
determining whether a case is outside the heartland. See United States v. Simpson,
7 F.3d 813, 820 (8th Cir.1993). Use of this type of departure is limited to an
"extraordinary" case, however:

      The Commission does not foreclose the possibility of an extraordinary
      case that, because of a combination of such characteristics or
      circumstances, differs significantly from the "heartland" cases covered
      by the guidelines in a way that is important to the statutory purposes of
      sentencing, even though none of the characteristics or circumstances
      individually distinguishes the case. However, the Commission believes
      that such cases will be extremely rare.
U.S.S.G. § 5K2.0, cmt. (2001). In order to depart on the basis of a combination of
factors, a court must find that the combined circumstances differ significantly from
the heartland "in a way that is important to the statutory purposes of sentencing." No
such findings were made here.

      In reviewing a departure on the basis of a combination of circumstances, we
must consider each factor identified by the sentencing court and the weight given to
it. Our review of "whether a factor is a permissible basis for departure" is de novo.
Diaz-Diaz, 135 F.3d at 580. One of the main factors cited in this case was aberrant
behavior, but it was not an available basis because Roberts had more than one


                                         -8-
criminal history point. A factor which is specifically precluded under the guidelines
cannot be used to take a case out of the heartland, whether or not considered in
combination with other factors. See, e.g., United States v. Jones, 158 F.3d 492, 497
(10th Cir. 1998). Even if all five factors mentioned by the district court were
considered, however, they would not show an "extremely rare" situation. U.S.S.G.
§ 5K2.0, cmt. (2001). No factor was found to be exceptional, and the aggregation
came to no more than a sum of its insufficient parts. See United States v. Gallegos,
129 F.3d 1140, 1146 (10th Cir. 1997) (refusing to depart on combination of several
individually insufficient factors).

      For these reasons, we reverse the judgment and remand for resentencing.

BEAM, Circuit Judge, concurring.

      I concur in the result reached by the court in this case. I must do so under a
proper application of the sentencing guidelines analyzed by the district court.
However, I think the court fashioned a fair sentence under the circumstances
presented and I laud its efforts to do so. Perhaps upon remand, the district court will
be able to find an alternative route through the statutes and guidelines to reach the
same destination although I admit that I am unable to see a way to do so at this time.

      A true copy.

             Attest:

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




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