                         United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                ______________

                                No. 97-1441WM
                                _____________

United States of America,               *
                                        *
            Appellant,                  *
                                        *
      v.                                *   On Appeal from the United
                                        *   States District Court
                                        *   for the Western District
Bing Wong, also known as Randy          *   of Missouri.
Shaw, also known as James Benson,       *
also known as Mark Johnson; Peter L.    *
Moore; and William Andre Mitchell,      *
                                        *
            Appellees.                  *

                                  ___________

                             Submitted: September 8, 1997
                                 Filed: October 14, 1997
                                  ___________

Before RICHARD S. ARNOLD, Chief Judge, HEANEY and BEAM, Circuit Judges.
                            ___________

RICHARD S. ARNOLD, Chief Judge.


      In this case the Government appeals the sentences imposed on three defendants
following guilty pleas for drug-related crimes. We reverse the sentences imposed by
the District Court and remand the case for resentencing. The reasons given by the
District Court for departing below the Guidelines -- for example, that the cost of
imprisonment for long periods of time is too high -- are insufficient in law.

                                           I.
       Bing Wong, Peter L. Moore, and William A. Mitchell were named with six other
codefendants in a ten-count indictment returned on April 11, 1995, charging them with
violations of federal narcotics laws. In November 1995, Wong, Moore, and Mitchell
each pleaded guilty to Count Two of the indictment, which charged a conspiracy to
distribute cocaine and cocaine base (“crack”) in violation of 21 U.S.C. § 846 (1994).

       The Government and Wong agreed that Wong’s base offense level under the
federal Sentencing Guidelines, based upon the amount of “crack” cocaine involved,
would be Level 38, with a four-level enhancement added under U.S.S.G. § 3B1.1
because Wong was the leader of a criminal organization comprised of five people or
more. See U.S.S.G. § 3B1.1(a). Wong and the Government also agreed that Wong
would receive a three-level downward adjustment for acceptance of responsibility,
bringing his final offense level to 39. The Government and Moore agreed that Moore’s
offense level under the Sentencing Guidelines would be Level 38, and that Moore
would receive a decrease of three levels for acceptance of responsibility. Likewise,
under Mitchell’s plea agreement, Mitchell’s base offense level was 38, and he was
entitled to a three-level downward adjustment for acceptance of responsibility.

       The District Court held a sentencing hearing for the three defendants on
December 17, 1996. At the hearing, each defendant stipulated to the amount of
“crack” attributable to him for purposes of the Sentencing Guidelines. Wong stipulated
to responsibility for 30 kilograms of “crack”; Moore stipulated to 30 kilograms; and
Mitchell stipulated to 20 kilograms. Wong objected to being placed in Criminal
History Category III, but his objection was overruled by the District Court. Because
Wong’s base offense level was 39 and his Criminal History Category was III, he


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qualified for 324 to 405 months of imprisonment under the Sentencing Guidelines.
Moore and Mitchell were each found by the District Court to qualify for a reduction of
their sentences under the five-part “safety valve” test of 18 U.S.C. § 3553(f) (1994),
therefore reducing their offense levels to 33 and their periods of imprisonment to 135
to 168 months each.

      However, the sentences imposed by the District Court did not fall within these
ranges. Wong received a sentence of 240 months' imprisonment, and Mitchell and
Moore each received a 120-month sentence. Each defendant also received a fine of
$500.00 and a $50.00 special assessment. In sentencing Wong, Moore, and Mitchell,
the District Court said:

             I am going to make a decision to eliminate what I think
             would be an element of unfairness in sentencing strictly
             according to the guidelines. . . . [L]et me just say in doing
             so I am not undertaking technically to justify a downward
             departure, although I believe that even under the guidelines
             and regulations under the guidelines a downward departure
             is probably justifiable. I am really doing what I am doing
             today because I think it is fair and I think it is
             unconscionable to do otherwise, not only to the defendants
             but equally to the people of the United States.


Sentencing Hearing Trans. at 36. The Court, however, went on to mention a number
of factors it believed justified downward departures for these defendants. The case is
now here on the appeal of the United States.

                                          II.

      When sentencing criminal defendants, a federal court may depart from the
Sentencing Guidelines only in a manner provided by the Guidelines, subject of course

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to constitutional or statutory limits, none of which is argued here. United States v.
Johnston, 973 F.2d 611, 613 (8th Cir. 1992), cert. denied, 506 U.S. 1068 (1993). The
District Court’s disagreement with the Guideline ranges applicable to the defendants
is not sufficient to justify deviation from the Guidelines. The commentary to U.S.S.G.
§ 5K2.0 notes that “dissatisfaction with the available sentencing range or a preference
for a different sentence than that authorized by the guidelines is not an appropriate basis
for a sentence outside the applicable guideline range.” See also Koon v. United States,
116 S. Ct. 2035, 2044 (1996) (“A district judge now must impose on a defendant a
sentence falling within the range of the applicable Guideline, if the case is an ordinary
one.”). Insofar as the sentences imposed by the District Court reflect only the Court’s
dissatisfaction with the constraints imposed on judicial discretion by the Sentencing
Guidelines, the sentences must be reversed.

       The Sentencing Guidelines do allow a district judge to depart from the prescribed
ranges in exceptional cases. Koon v. United States, 116 S. Ct. at 2044. Examples of
“encouraged factors” include victim provocation, coercion and duress, and the
defendant’s diminished capacity. See U.S.S.G. §§ 5K2.10, 5K2.12, 5K2.13; Koon,
116 S. Ct. at 2045. Examples of “forbidden factors,” or factors which may not be used
in determining whether to depart from the guidelines, include the defendant’s race,
creed, sex, religion, national origin, or socio-economic status. See U.S.S.G. § 5H1.10;
Koon, 116 S. Ct. at 2045. If a factor is unmentioned by the Sentencing Guidelines, the
court may use it only if it determines, after taking into consideration the structure and
theory of relevant Guidelines and the Sentencing Guidelines as a whole, that the factor
is sufficient to “take the case out of the Guideline’s heartland.” Koon, 116 S. Ct. at
2045.

       The District Court noted several factors it used in reducing the appellees’
sentences below the prescribed Guidelines levels. First, the Court expressed concern
with the fact that other defendants involved in the same drug trafficking scheme had


                                           -4-
received lesser sentences from other federal district judges.1 This Court has held that
“[d]isparity between sentences imposed on codefendants is not a proper basis for
departure.” United States v. Polanco, 53 F.3d 893, 897 (8th Cir. 1995), cert. denied,
116 S. Ct. 2555 (1996). Though one of the congressional goals in enacting the
Sentencing Guidelines was the promotion of proportional and uniform sentences, some
disparity will inevitably exist because of the unique facts of each individual defendant’s
case. Id. Therefore, the District Court’s reliance on disparate sentences as a
justification for departing from the guidelines was erroneous.
        Next, the District Court cited the costs of imprisoning the three defendants as a
reason for departing from the guidelines and imposing shorter sentences. The decision
whether tax dollars should be used to pay for lengthy sentences is a congressional
determination, not one to be made by federal courts. The Sentencing Guidelines do not
mention the expenses of imprisonment as a factor a court may use in deciding whether
to depart from the Guidelines, and the District Court gave no explanation as to why
such a factor would take the defendants’ case out of the “heartland” of the applicable
Guidelines. See Koon, 116 S. Ct. at 2045. This factor should not have been
considered by the District Court when it imposed the defendants’ sentences.
        The District Court also justified its departure because it did not believe the length
of the sentences imposed by the Guidelines on the three defendants was necessary to
prevent future criminal activity. This consideration has already been taken into account
in the drafting of the Guidelines. See 28 U.S.C. § 994(c)(6) (1994) (Commission




       1
        Four defendants who were involved in the Wong organization received
sentences from other federal judges which departed from Sentencing Guideline ranges,
all because of motions made by the Government as a result of the defendants’
substantial assistance. Appellant’s Br. at 13-14 n.11. No such motion was made in
these three defendants’ cases, and there is no claim that the Government was legally
obliged to make such a motion.

                                            -5-
required to consider “the deterrent effect a particular sentence may have”). This factor
should not have been used to depart from the Guideline ranges.

      Next, the District Court noted the distinction made under Sentencing Guidelines
between powder cocaine and cocaine base, or “crack.” Under the Sentencing
Guidelines, for sentencing purposes, “crack” is worth 100 times as much as powder
cocaine. See 21 U.S.C. § 841(b) (1994); U.S.S.G. § 2D1.1(c). We have rejected the
proposition that this disparity can justify a downward departure. See United States v.
Lewis, 90 F.3d 302, 304 (8th Cir. 1996), cert. denied, 117 S. Ct. 713 (1997).

       Finally, the District Court justified its downward departure by the fact that there
were no weapons or violence involved in the criminal offenses. A court should not
ordinarily depart from a prescribed sentence on the basis of a potentially mitigating
factor which the Guidelines have already taken into account. Koon, 116 S. Ct. at 2045.
In this case, the applicable Guidelines for each defendant had already taken into
account the absence of weapons or violence. None of the three defendants received the
two-level enhancement which is required for possession of a weapon in connection
with a drug offense. See U.S.S.G. § 2D1.1(b)(1). And Mitchell and Moore each
received a two-level downward adjustment under U.S.S.G. § 5C1.2, the “safety valve”
exception, which, before it can be applied, requires that the defendant not have
possessed a weapon or used violence in connection with his offense. See 18 U.S.C.
§ 3553(f)(2) (1994); U.S.S.G. § 5C1.2(2). Under Koon, if a factor has already been
taken into account by the Guidelines, a district 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.” Koon, 116 S. Ct. at 2045. There is
nothing in the record to suggest that the absence of weapons or violence makes this
case exceptional or extraordinary, when compared with other cases in which there was
no use of weapons or violence.




                                           -6-
       A word should be added about a factor not expressly referred to by the District
Court at the sentencing hearing. Mitchell filed a “motion for downward departure
based on ‘Family Need.’” The grounds advanced by the motion were, in brief, that
four children were dependent upon Mitchell for their support. Two of these children
had been living with Mitchell and his wife, Renita Y. Gee. Ms. Gee was also a
defendant in the case, and Mitchell did not believe she would be able to support the
children in his absence.

       The District Court granted Mitchell’s motion for downward departure, but in
giving its reasons, it mentioned only the factors we have already discussed in this
opinion. It said nothing about the family’s circumstances alleged in the motion. Thus,
we do not know whether the District Court rejected these family circumstances as a
ground for departure, or whether it simply failed to reach the issue. The parties and the
District Court, on remand, will be free to pursue this matter in whatever way the law
and the facts permit.

       A few observations on the point may be in order. Congress instructed the
Commission to consider the relevance of “family ties and responsibilities” to
sentencing. 28 U.S.C. § 994(d)(7) (1994). Congress also declared “the general
inappropriateness of considering the . . . family ties and responsibilities” of a defendant
in fixing the length of imprisonment. 28 U.S.C. § 994(e). The Commission, in turn,
has issued a policy statement under U.S.S.G. § 5H1.6, which reads as follows:

                   Family ties and responsibilities . . . are not ordinarily
             relevant to determining whether a sentence should be
             outside the applicable guideline range.
                   ....

Such factors, however, “may be relevant . . . in exceptional cases,” Introductory
Commentary, U.S.S.G. Part 5H. We suggest that the District Court, on remand,


                                           -7-
explore whether this case can properly said to be extraordinary or exceptional in any
relevant way.

                                         III.

       Because the District Court erred in departing from the Sentencing Guidelines for
the reasons we have discussed, we reverse the sentences for Bing Wong, Peter L.
Moore, and William A. Mitchell, and remand the case to the District Court for
resentencing, in a manner not inconsistent with this opinion.

      It is so ordered.

      A true copy.


             Attest:


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




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