UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                   No. 98-4618

HEATHER REILLY,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis III, District Judge.
(CR-98-53-A)

Argued: March 5, 1999

Decided: April 21, 1999

Before WILLIAMS and MICHAEL, Circuit Judges, and
MICHAEL, Senior United States District Judge for the
Western District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion. Judge Williams wrote
a dissenting opinion.

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COUNSEL

ARGUED: Vincent L. Gambale, Assistant United States Attorney,
Alexandria, Virginia, for Appellant. Patrick Nicolas Anderson, LAW
OFFICES OF PATRICK N. ANDERSON, Alexandria, Virginia, for
Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Alex-
andria, Virginia, for Appellant.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Before us is the government's appeal from the district court's deci-
sion to depart downward from the Sentencing Guidelines on the basis
of "extraordinary post-offense rehabilitation." The government con-
tends that Heather Reilly does not qualify for this departure as a mat-
ter of law because her efforts at rehabilitation were entirely
unremarkable. We affirm, concluding that the district court did not
abuse its discretion in granting the downward departure.

I.

Reilly pleaded guilty to conspiracy to distribute methamphetamine,
in violation of 21 U.S.C. § 846. She qualified for the "safety valve"
provision (18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2) that authorizes a
sentence below the statutory mandatory minimum. Under the Guide-
lines her offense level was set at 21, which reflected a three-level
reduction pursuant to § 3E1.1 for acceptance of responsibility. With
her criminal history category of I, this would have produced a sen-
tence range of 37 to 46 months.

District Judge T. S. Ellis III granted an eleven-level downward
departure for "extraordinary post offense rehabilitative efforts." He
based this decision on several factors. He noted that Reilly voluntarily
left the conspiracy. She started a regular job working in a retail store
and received positive evaluations. She began to attend church regu-
larly and participate in church-sponsored youth activities and group
counseling sessions. In addition, she moved in with her aunt for one
month and participated in an informal recreational therapy program
for drug users that her aunt ran. This therapy consisted of working in
the aunt's rock-climbing gym and participating in group recreational
activities on weekends. Drawing on his eleven years of experience as
a district judge, Judge Ellis characterized these steps as "significant

                    2
and extraordinary" and granted the eleven-level downward departure.
This reduced Reilly's offense level from 21 to 10, resulting in a sen-
tence range of 6 to 12 months. The judge sentenced her to four
months of imprisonment and four months of home confinement. The
government now appeals the downward departure.

II.

We review a district court's decision to depart from the Sentencing
Guidelines for abuse of discretion. Koon v. United States, 518 U.S.
81, 91 (1996).

Post-offense rehabilitation may potentially serve as the basis for a
downward departure. United States v. Brock, 108 F.3d 31, 35 (4th Cir.
1997). However, such a departure is only proper if the rehabilitation
efforts are "extraordinary." United States v. Barber, 119 F.3d 276,
281 n.4 (4th Cir. 1997). Because rehabilitation is already considered
in the "acceptance of responsibility" guideline, U.S.S.G. § 3E1.1,* the
rehabilitation departure should only be granted when the rehabilita-
tion efforts are "present to such an exceptional degree that the situa-
tion cannot be considered typical of those circumstances in which an
acceptance of responsibility adjustment is granted." Brock, 108 F.3d
at 35. The departure must be "the exception, not the rule" and is only
appropriate when "the unique circumstances presented . . . take the
case out of the heartland of the applicable guideline and make the sit-
uation one in which a sentence outside the guideline range should
result." Id. at 34 (citing Koon v. United States, 518 U.S. at 92-93).

We cannot say that the district judge abused his discretion in grant-
ing the downward departure. Judge Ellis reviewed the record carefully
and repeatedly characterized Reilly's post-offense rehabilitation
efforts as extraordinary. He supported this conclusion with extensive
factual findings:
_________________________________________________________________
*The Guidelines application notes state that voluntary withdrawal
from criminal associations and "post-offense rehabilitative efforts (e.g.,
counseling or drug treatment)" are factors to be considered in determin-
ing whether a defendant qualifies for an acceptance of responsibility
reduction. U.S.S.G. § 3E1.1, comment. (n. 1(b), (g)).

                    3
          In the Court's view -- and I have considered the cases
         cited by the government and on both sides of the issue --
         I am persuaded that, taking all of the factors into account,
         this is a case of exceptional or extraordinary efforts at post
         offense rehabilitation.

         ***

          It appears to the Court that she [Reilly] made the decision
         to change her life, and that she took significant and positive
         steps toward doing it.

         ***

          I do see, as the government counsel recognizes, that in
         now more than eleven years or so of service on the bench,
         I have seen a large number of defendants, and I have seen
         a great many who take some steps.

          But what makes this case, I think, compelling to the Court
         is that at a very young age, on her own initiative, after
         involvement in this conspiracy for a fairly short period of
         time, she extricated herself from it and took fairly signifi-
         cant steps to change her life, succeeded in changing her life.

          She did receive treatment, both from her aunt, that is,
         therapy rather than treatment, from her aunt and from the
         church; and she also recognized on her own that she needed
         to be employed and she needed to take pride in her job and
         she needed to do well in her job, all of which, in the Court's
         view, is evidence of extraordinary rehabilitative efforts.

          By voluntarily seeking the kind of therapy she did, she
         has obviously made progress during the therapy. She has
         obviously been public about the origin of her problems. And
         she obviously has gotten employment, she has received
         good performance ratings, and she is also demonstrating that
         her life is different.

J.A. 140-43.

                   4
The judge scrutinized the informal therapy that Reilly received,
finding it and other factors sufficient to support the downward depar-
ture:

           Now, it is true that neither the church nor her aunt are
          what the government would accept as certified drug abuse
          counselors and other types of psychological counselors. But
          the Court, after hearing the testimony [of the church pastor,
          one of the church elders, and Reilly's aunt], is satisfied that
          these individuals have substantial experience in this regard,
          and that I don't see a strong reason for distinguishing
          between, for example, some secular psychologist and some
          of the group therapy that she has had.

           . . . But what I look to see is whether or not there has been
          an extraordinary effort made.

           And the fact that she didn't go to some professional psy-
          chologist or some intensive drug treatment program is not
          particularly persuasive to me. What is persuasive is that
          before she was arrested she left the conspiracy. She deter-
          mined that she would change her life. She then took very
          significant steps towards that end, and so far as this record
          is concerned, it appears that she has succeeded in large mea-
          sure.

           And I am not unimpressed with the qualifications of her
          aunt. It is clear that her aunt has had a great deal of experi-
          ence with troubled youth and youth who take drugs, and that
          she undertook the same kind of therapy with her niece that
          she would with other troubled people, which is to provide
          a highly structured environment for them, to begin taking
          steps to see that they question their own behavior and their
          own feelings, and to develop some sort of insight so that
          they can decide, so that they can have some sense of why
          they act the way they do.

J.A. 140-42.

                    5
The judge recognized that a downward departure for post-offense
rehabilitation is only appropriate when the defendant's efforts at reha-
bilitation are extraordinary. See Brock, 108 F.3d at 35. Based in part
on his eleven years of experience as a judge, he concluded that Reil-
ly's efforts met the standard. And, he carefully enumerated the rea-
sons why he found Reilly's endeavors to be extraordinary. Given the
district judge's correct understanding of the legal standard and his
extensive findings, we cannot say that he abused his discretion in
granting the downward departure.

III.

Because the decision of the district court to grant the downward
departure was not an abuse of discretion, the sentence is

AFFIRMED.

WILLIAMS, Circuit Judge, dissenting:

As the majority admits, this Court has consistently held that in
order to justify a downward departure from the Sentencing Guide-
lines, post-offense rehabilitation must be extraordinary. See, e.g.,
United States v. Barber, 119 F.3d 276, 280-81 (4th Cir. 1997) (en
banc); United States v. Brock, 108 F.3d 31, 35 (4th Cir. 1997). If it
is not, then granting a downward departure is an abuse of discretion.
Because I am convinced that the post-offense rehabilitation in this
case was not extraordinary, I must respectfully dissent.

The majority relies heavily on the district court's careful enumera-
tion of "the reasons why he found Reilly's endeavors to be extraordi-
nary." Ante at 6. We require detailed recitation of the underlying facts
so that the propriety of the downward departure can be reviewed upon
appeal. See United States v. Wilson, 114 F.3d 429, 433 (4th Cir. 1997)
("[T]he determinative inquiry is whether the individual facts that the
district court is considering are taken into account in the heartland of
situations encompassed within the applicable guideline."). The major-
ity apparently affirms the district court's finding of extraordinary
rehabilitation based upon the following factors: Reilly's young age;
Reilly's voluntary departure from the conspiracy; the therapy Reilly

                    6
received through her aunt and church; and finally, the fact that Reilly
secured employment and performed well. None of the factors taken
individually or collectively is sufficient to constitute extraordinary
rehabilitation that would take this case out of the heartland of the Sen-
tencing Guidelines.

I must first note that using Reilly's age as a factor in granting a
downward departure is discouraged by the Sentencing Guidelines and
should only be considered in rare circumstances. See U.S. Sentencing
Guidelines Manual § 5H1.1 (1998) ("Age (including youth) is not
ordinarily relevant in determining whether a sentence should be out-
side the applicable guideline range."); see also United States v.
Summers, 893 F.2d 63, 69 (4th Cir. 1990) (noting that § 5H1.1 of the
Sentencing Guidelines specifically states that youth should not ordi-
narily be taken into account in a sentencing departure decision). At
the time of her involvement with the conspiracy, Reilly was eighteen
years old. The district court, however, gave no reason why Reilly's
age was a factor in finding extraordinary rehabilitation and I can find
no reason, especially in contravention of the stated policy of the Sen-
tencing Guidelines, why it would be.

As to Reilly's voluntary departure from the conspiracy and the
therapy she received through her aunt and church, the Government
correctly points out that these factors were considered by the district
court when it adjusted the offense level for her acceptance of respon-
sibility under § 3E1.1 of the Sentencing Guidelines. The application
notes to § 3E1.1 specifically state that "voluntary termination or with-
drawal from criminal conduct or associations" and rehabilitative
efforts such as counseling are taken into account in granting a reduc-
tion in the offense level. U.S. Sentencing Guidelines Manual § 3E1.1,
comment. (n.1(b) & (g)) (1998). Reilly already received credit under
the Guidelines for the positive steps she took in withdrawing from the
conspiracy and seeking treatment. In order for these same actions to
be appropriately considered for an additional downward departure,
they must be present in "an exceptional or extraordinary degree."
Barber, 119 F.3d at 281.

Neither Reilly's withdrawal from criminal conduct and associa-
tions nor her counseling/therapy were exceptional. Certainly Reilly
withdrew from the conspiracy before there was any threat of prosecu-

                    7
tion, but she indicated that her withdrawal was motivated at least in
part by fear of her co-conspirators, hardly evidence of a reformed
mindset. (See J.A. at 133.) Furthermore, she undertook no other
extraordinary actions concurrent with the withdrawal such as inform-
ing law enforcement about the conspiracy. In no way did Reilly's vol-
untary withdrawal exceed the criterion set forth under §3E1.1 of the
Guidelines.

Nor can Reilly's counseling or therapy be termed extraordinary or
exceptional. Reilly resided for approximately one month with her
aunt, whom the district court determined "had a great deal of experi-
ence with troubled youth and youth who take drugs." (J.A. at 141.)
For the relatively short time that Reilly was there, she engaged in an
informal program of recreational therapy, which consisted in part of
performing menial tasks at her aunt's rock-climbing facility. After
returning to her parents' home, Reilly began regularly to attend
church-sponsored meetings that provided positive guidance in her
life. I do not mean to denigrate these activities, but they simply do not
consist of the rigorous rehabilitative efforts one would expect of
extraordinary rehabilitation that is deserving of a substantial down-
ward departure.

Finally, the fact that Reilly obtained a job and received good per-
formance evaluations adds little to her case. Reilly held similar jobs
throughout high school and just before she moved in with her aunt.
Her employment does not indicate significant, much less extraordi-
nary, post-offense rehabilitation.

Viewing Reilly's post-offense activities, individually or collec-
tively, does not reveal extraordinary rehabilitation that would support
an eleven-level downward departure in addition to the reduction in
offense level that Reilly already received for "acceptance of responsi-
bility" under the Sentencing Guidelines. Because the departure was an
abuse of the district court's discretion, I dissent.

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