                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 98-2644
                                     ___________

United States of America,                 *
                                          *
             Appellant,                   *
                                          *
      v.                                  * Appeal from the United States
                                          * District Court for the District
Brent William Allery,                     * of North Dakota.
                                          *
             Appellee.                    *
                                     ___________

                              Submitted: January 12, 1999

                                   Filed: April 15, 1999
                                    ___________

Before LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       This is the second time that this case has been before us. In the first appeal, we
reversed the district court's order granting Brent William Allery's post-trial motion
for judgment of acquittal, because we believed that the evidence produced at his trial
did in fact support a jury finding that he had used force in committing abusive sexual
contact. See United States v. Allery, 139 F.3d 609 (8th Cir. 1998), cert. denied, 118
S. Ct. 2389 (1998). On remand for entry of a judgment of conviction and sentencing,
the trial court departed from the applicable guideline range of 70-87 months and
sentenced Mr. Allery to a term of 30 months. The government appealed and we
reverse and remand for resentencing.

                                            I.
       At the sentencing hearing, the trial court concluded that a downward departure
from the applicable guideline range was warranted because the facts of the case did
not fall within the heartland of offenses proscribed by 18 U.S.C. § 2244(a)(1), the
statute under which Mr. Allery stood convicted. The facts of the case were certainly
most unusual, and we rehearsed them in detail in our first opinion in this case:
Mr. Allery forced himself on his victim while she was asleep, and when she awoke
she pushed him away and freed herself. We upheld the conviction on the ground that
the jury was free to infer from the facts just recited that Mr. Allery "was physically
restraining [the victim] by lying on top of her and resisting her attempts to push him
away while at the same time he was having sexual intercourse with her." This, we
held, was "sufficient to constitute force under the statute." United States v. Allery,
139 F.3d at 612.

       We have held that an upward departure is warranted in cases in which the
victim suffered " 'psychological injury much more serious than that normally resulting
from the commission of the offense,' " United States v. Yellow, 18 F.3d 1438, 1442
(8th Cir. 1994), quoting U.S.S.G. § 5K2.3 (policy statement), and Mr. Allery urges
us to adopt a symmetrical rule in his favor. There are two difficulties with this
request. The first is that the record is silent on the question of how much
psychological injury the victim suffered in this case, and we are loath to adopt a per
se rule that the circumstances in which the victim found herself (waking up with a
total stranger having sexual intercourse with her) necessarily imply a level of
psychological distress entirely atypical of that suffered by rape victims in general.
Secondly, and perhaps more important, the grounds for the upward departure that we
sustained in United States v. Yellow were specifically approved of by U.S.S.G.



                                         -2-
§ 5K2.3 (policy statement). The departure that Mr. Allery argues for here finds no
similar sanction in the guidelines.

       A consideration that the guidelines do not specifically approve will, however,
sustain a departure if it is sufficiently unusual to take the case out of the guidelines'
heartland. Although the Sentencing Commission has indicated its belief that such
departures will be "extremely rare," see U.S.S.G. § 5K2.0 (policy statement),
commentary, see also U.S.S.G. Ch. 1, Pt. A(4)(b) (policy statement), the Supreme
Court has instructed us to review a district court's decision to make this kind of
departure under an abuse of discretion standard. The Court has further cautioned that
the district court's departure decisions "will in most cases be due substantial
deference." Koon v. United States, 518 U.S. 81, 98 (1996).

       It is apparent to us that the highly unusual factual circumstances of this case
were such that it was not an abuse of discretion to hold that the case lay outside the
heartland of those cases for which the guideline applicable here was intended.
Although the amount of force that was used to commit the relevant crime was, as we
held, sufficient to sustain a conviction under the statute, it was, we think, virtually the
least amount of force that could do so. That being so, the case almost necessarily
falls outside the heartland of cases that the applicable guideline covers. We cannot
say, at least, that it would be an abuse of discretion to hold that it did.

       Judge Hansen, in his dissent, takes the view that United States v. Amos, 952
F.2d 992 (8th Cir. 1991), cert. denied, 503 U.S. 1010 (1992), requires us to hold that
the departure in this case was error. We disagree. At most, United States v. Amos
stands for the proposition that a departure in cases like the present one is prohibited
because "[d]ifferences in the severity of the conduct underlying the charged offense
... were considered by the Sentencing Commission in establishing the sentencing
range." Id. at 995. That proposition, we believe, cannot survive Koon because we
see nothing in the " 'structure and theory of ... the Guidelines taken as a whole,' "

                                           -3-
Koon, 518 U.S. at 96, quoting United States v. Rivera, 994 F.2d 942, 949 (1st Cir.
1993), that would forbid a departure. We think, in particular, that the fact that an
enhancement was applicable in Mr. Allery's case is irrelevant: An enhancement
merely serves to establish a guideline range, it does not automatically immunize a
sentence from a departure.

      The government asserts that the trial court saw atypicality in this case because
the victim was "incapable of declining participation in, or communicating
unwillingness to engage in, [the] sexual act," see 18 U.S.C. § 2242(2)(B), and points
out that the base offense level for that kind of sexual abuse is 27, the same base
offense level that the trial court found applicable before it departed. See U.S.S.G.
§ 2A3.1(a) and commentary (background). The government argues, therefore, that
the departure was unwarranted, because the sentencing range would not have changed
even if the alleged atypicality of Mr. Allery's offense conduct had been the basis for
the conviction in the first place.

       We see at least two infirmities in the government's argument. The first is that
we believe that the trial court thought that the offense was atypical because of the
minimal amount of force used, not because of the victim's inability to consent. Even
if our understanding of the record in this respect is in error, however, a base offense
level of 27 was not appropriate for this case, as the government itself points out in its
brief: That level should have been increased by four under U.S.S.G. § 2A3.1(b)(1)
because Mr. Allery used force in perpetrating his offense. The government, however,
made no objection at sentencing to the guideline range that the trial court found
applicable and it specifically waived the matter in its appeal brief. We see no reason
to allow it to resurrect that legal issue, in an essentially collateral way, by employing
it as a reason to undermine the propriety of the trial court's departure. The
government has conceded the applicability of the guideline range from which the
court departed, and it is that departure, not some other one, that we have before us.



                                          -4-
                                          II.
       Because we think that the trial court did not abuse its discretion in finding that
the facts of this case set it apart, we would ordinarily affirm the judgment. In this
case, however, after the sentencing hearing, the court identified some other
considerations that led it to depart, and we are obligated to examine the
appropriateness of these. That is because in instances in which a district court uses
both appropriate and inappropriate considerations in concluding that a departure is
warranted, we must remand for a reconsideration of the sentence. See, e.g., United
States v. Simmons, 964 F.2d 763, 777 (8th Cir. 1992), cert. denied, 506 U.S. 1011
(1992); cf. Williams v. United States, 503 U.S. 193, 202-03 (1992) .

       The other considerations to which the trial court adverted in deciding to depart
were that Mr. Allery had no prior criminal history, that he refrained from criminal
behavior after his trial, and that his actions represented aberrant behavior on his part.
The first of these can be shortly dealt with. We have squarely held that the lack of
prior criminal history can never furnish the basis for a downward departure. See, e.g.,
United States v. Wind, 128 F.3d 1276, 1278 (8th Cir. 1997). It is true that we held
in United States v. Kapitzke, 130 F.3d 820, 823 (8th Cir. 1997), that post-offense
rehabilitation may, if it is sufficiently unusual, furnish grounds for a downward
departure. In this case, however, the record shows only that Mr. Allery has not
broken the law since he was convicted. There is, we can hope, nothing atypical about
obeying the law. Mr. Allery's post-conviction activities here are hardly different from
those of thousands of other offenders and thus cannot serve to take his case out of the
heartland of those to which his guidelines apply.

       As for the allegedly aberrational character of the offense conduct, it is true that
we have indicated that acts of aberrant behavior may, in an appropriate case, support
a downward departure. But in this case, we believe that the trial court abused its
discretion in finding that Mr. Allery's acts were aberrant in the sense that our cases
have defined them.

                                           -5-
       One line of our cases defines aberrant behavior as a " 'spontaneous and
seemingly thoughtless act,' " United States v. Weise, 89 F.3d 502, 507 (8th Cir.
1996), quoting United States v. Carey, 895 F.2d 318, 325 (7th Cir. 1990). The acts
that Mr. Allery committed here simply cannot be characterized as "spontaneous and
seemingly thoughtless"; they must of necessity have involved an amount of planning
wholly inconsistent with spontaneity, and the record in fact reveals that they did.
Another of our cases indicates that the aberrancy of offense conduct can be evaluated
in light of the extent to which that conduct deviated from that typical of those who
commit the relevant offense. See United States v. Kalb, 105 F.3d 426, 429 (8th Cir.
1997). In the present case, at least, such a definition reduces itself to a surrogate for
the initial ground on the basis of which the trial court departed, namely, the
atypicality of Mr. Allery's behavior when compared to the behavior that occurs in
heartland cases. This ground, therefore, represents at worst a legal error and at best
a simple redundancy.

                                         III.
       Since the trial court adverted to both appropriate and inappropriate
considerations in fixing a sentence in this case, we vacate the sentence and remand
the case for a reconsideration of Mr. Allery's sentence. On remand, the trial court
must decide whether it wishes to depart from the guidelines because the amount of
force that Mr. Allery employed was sufficiently atypical to make his case one that lies
outside the heartland of cases that the Sentencing Commission considered in
formulating the guidelines. None of the other considerations that the trial court used
in arriving at its original sentence may properly be brought to bear in the
resentencing.

HANSEN, Circuit Judge, concurring in part and dissenting in part.

       I concur in Part II of the court's opinion that holds that the bases for the district
court's departure discussed in that Part are inappropriate bases for a downward

                                            -6-
departure. I respectfully dissent from Parts I and III to the extent that those Parts
approve of the district court's departure based on the minimal amount of force used
to commit the abusive sexual contact for which Allery was convicted.

      Before a sentencing court may depart from an otherwise correctly determined
Guideline sentencing range because the case is outside the Guideline's heartland, it
must determine whether the contemplated departure is expressly forbidden,
encouraged, or discouraged by the Sentencing Commission. See United States v.
Woods, 159 F.3d 1132, 1134 (8th Cir. 1998). "If the factor is unmentioned [as is the
case here], the sentencing court must consider the structure and theory of both
relevant individual guidelines and the Guidelines taken as a whole, and decide
whether the factor is sufficient to take the case out of the heartland." Id. (internal
quotations and citations omitted).

        Allery's sentence was determined pursuant to USSG § 2A3.1 (1995). In United
States v. Amos, 952 F.2d 992, 995 (8th Cir. 1991), cert. denied, 503 U.S. 1010
(1992), we reversed a district court's downward departure based on the nature of the
defendant's sexual assault of the victim. As the court's present opinion sets out, our
court held in Amos that "'[d]ifferences in the severity of the conduct underlying the
charged offense . . . were considered by the Sentencing Commission in establishing
the sentencing range.'" Ante at __ (quoting Amos, 952 F.2d at 995). The court now
says that the Amos holding cannot survive after the Supreme Court's decision in
Koon. I respectfully disagree. Because USSG § 2A3.1 is designed to apply in cases
ranging from those where the absolute minimum amount of force necessary to violate
the sexual abuse statutes has been employed by the perpetrator up to and including
those cases involving the maximum application of force to the victim, i.e., murder
during the commission of the offense, see USSG § 2A3.1(c), the structure and theory
of the Guideline demonstrate that the factor of the amount of force involved in a
particular sexual abuse crime has been accounted for by the Sentencing Commission
in setting the base offense level and in establishing the specific offense characteristics

                                           -7-
and cross-references contained in § 2A3.1. Consequently, no downward departure
based on the fact that only the minimum amount of force necessary to violate the
statute was employed is permitted. See 18 U.S.C. § 3553(b) (no departure allowed
where the Sentencing Commission has adequately taken the factor into consideration
in formulating the Guideline). Stated another way, the "heartland" of cases covered
by this Guideline is, as far as the force factor is concerned, as broad as the range of
force that may be employed to accomplish the crime.

       An analogy to the determination of sentences under the drug guideline may
better illustrate my point. Assume a sentencing judge determines that a defendant
who falls in Criminal History Category III is responsible for delivering a small
quantity, say 50 grams, of marijuana. USSG § 2D1.1(c)(17) establishes an offense
level of 6 (2-8 months) for less than 250 grams of marijuana. While a sentencing
judge would be permitted to consider the fact that the defendant only was responsible
for 50 grams when the judge determined where within the sentencing range of 2-8
months to impose a sentence, the judge could not depart downward from offense level
6 on the basis of the small quantity because the Sentencing Commission has already
taken the absolute minimum quantity necessary to violate the statute into
consideration when it wrote the Guideline at level 6 for cases involving the minimum
amount of marijuana the delivery of which violates the drug statute. So it is with
force as a determining factor in sexual abuse cases. While a sentencing judge can
consider the fact that only the minimum force necessary to violate the statute was
used against the victim to justify a sentence at the bottom of the identified guideline
range, the judge cannot use minimum force as a basis for departure from that range.



       The majority opinion recognizes the government's argument in this regard, but
dismisses it as an attempt to resurrect a foregone appeal from the district court's
failure to apply the four-level enhancement under § 2A3.1. Ante at 4. In this appeal,
the government is not trying to add four levels to Allery's base offense level; rather,

                                         -8-
it is showing the court that because the Guidelines did contemplate the minimal use
of force needed to commit the crime of abusive sexual contact, no departure for
minimal use of force should have been granted.

       Finally, when we remand a case to the district court for reconsideration of a
sentence, "we of course do not suggest what course the district court should take with
respect to a downward departure." United States v. Brown, 990 F.2d 397, 402 (1993).
Yet, that is exactly what the majority does today. While "we are loath to adopt a per
se rule that [a person] . . . waking up with a total stranger having sexual intercourse
with her[] necessarily impl[ies] a level of psychological distress entirely atypical of
that suffered by rape victims in general," ante at 2, the majority finds that "the case
almost necessarily falls outside the heartland of cases that the applicable guideline
covers." Ante at 3. Not only does the opinion "suggest" the district court's course of
action, it comes dangerously close to doing what it purports not to--creating a per se
rule that abusive sexual contact through the use of force with a sleeping woman, who
awakens while the force necessary to violate both her and the statute is being applied
to her, is outside the heartland of cases contemplated by the applicable Guideline. I
cannot subscribe to such a result.

       For the reasons stated herein, I would reverse the district court's sentence
granting a downward departure to 30 months from the identified sentencing range of
70-87 months because none of the enumerated grounds were appropriate bases for a
downward departure. In particular, because the relevant Guideline is designed to
cover cases where only the minimum force necessary to violate the statute has been
used (a condition we found to exist in the first appeal), our court is wrong to permit
the district court on remand to consider whether the amount of force employed by
Allery merits a downward departure. I would remand for a sentence within the
sentencing guideline range of 70-87 months.




                                         -9-
A true copy.

      Attest:

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




                          -10-
