UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                    No. 98-4502

ANTHONY EATON,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CR-97-454-JFM)

Argued: December 3, 1998

Decided: February 2, 1999

Before MURNAGHAN and MICHAEL, Circuit Judges, and
HERLONG, United States District Judge for the
District of South Carolina, sitting by designation.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Richard Charles Kay, Assistant United States Attorney,
Baltimore, Maryland, for Appellant. Herbert Better, ZUCKERMAN,
SPAEDER, GOLDSTEIN, TAYLOR & BETTER, L.L.P., Baltimore,
Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia, United
States Attorney, Baltimore, Maryland, for Appellant. Zoe M. Gillen,
ZUCKERMAN, SPAEDER, GOLDSTEIN, TAYLOR & BETTER,
L.L.P., Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.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 "aberrant behavior." The behavior in question was comprised of
two trips to Jamaica over a three-week period.1 Other than those crim-
inal episodes, the defendant has been a hard working, model citizen.
The government contends that the district court's reliance on the "ab-
errant behavior" departure in light of Eaton's two separate trips is
erroneous because it directly conflicts with our precedent.

I.

Anthony Eaton flew from Baltimore to Jamaica on October 10,
1997, carrying an unknown amount of money with him. Willie Fry-
son, whose nickname is "Card," gave Eaton the money. Two days
later, Eaton returned to Baltimore with unknown quantities of
cocaine. The government estimates that, based on the size and weight
of the package, Eaton was carrying approximately 500 grams to two
kilograms of cocaine.

Approximately three weeks later, on October 31, Eaton boarded
another flight to Jamaica, this time carrying $20,000. However, he
was arrested by U.S. Customs agents. He never advised Customs that
he was carrying such a large amount of money.

The government charged Eaton with conspiracy to import cocaine
in violation of 21 U.S.C. § 963. In January 1998, Eaton entered into
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1 Actually, Eaton made one round trip from Baltimore to Jamaica
between October 10-12, 1997. When he attempted to make a second trip
to Jamaica three weeks later (October 31), he was arrested. Thus, Eaton's
conduct consists of three separate acts on three separate days.

                    2
a plea agreement in which he agreed to cooperate with the govern-
ment.

At the sentencing hearing held on May 12, 1998, the government
moved for a downward departure of two levels under U.S.S.G.
§ 5K1.1 and 18 U.S.C. § 3553(e) for substantial assistance. Eaton
requested a downward departure on grounds of aberrant behavior. The
district court granted Eaton's request, stating that it did not "think that
the fact that somebody sins twice in a short period of time . . . is really
legally distinct from somebody doing something just once." It then
departed eight levels from level eighteen to level ten. The court
declined to base the departure on cooperation.

II.

We review a district court's decision to depart from the Sentencing
Guidelines for abuse of discretion. See Koon v. United States, 518
U.S. 81, 91 (1996). Departures based on erroneous conclusions of law
are considered an abuse of discretion. See id. at 100.

The government argues that the district court's conclusion that the
defendant's three acts on three separate days constituted a single act
of aberrant behavior is directly contrary to our prior holding in United
States v. Glick, 946 F.2d 335, 338 (4th Cir. 1991).2 In Glick, we
addressed an appeal by the government from a sentencing departure
for aberrant behavior where the defendant had mailed five documents
containing confidential company information on five separate days
over a ten-week period. See id. at 337. Because the activities were
part of the same criminal enterprise, the district court concluded that
they amounted to a "single" aberrant act. See id.

We rejected that reasoning, however, concluding that Glick's "ex-
tensive planning, number of actions involved, and length of time over
which [he] planned and perpetrated his offense" demonstrated that the
case was not one involving aberrant behavior. In noting that aberrant
behavior means more than first offense, we explained that our inter-
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2 The district court expressly chose not to depart on the basis of cooper-
ation, a departure that even the government acknowledges would be
appropriate.

                     3
pretation of the departure for single acts of aberrant behavior contem-
plated "`a spontaneous and seemingly thoughtless act rather than one
which was the result of substantial planning . . . .'" Id. at 338 (citation
omitted). Finally, we confined the term "single act" to its literal mean-
ing, rather than interpreting the phrase to encompass "a series of
actions calculated to further criminal misconduct." Id. at n* (rejecting
the Ninth Circuit's approach to the definition of aberrant behavior).

Using the analysis set forth in Glick, the district court's departure
based on aberrant behavior in the instant case cannot stand. Even if
Eaton did not plan the entire criminal enterprise, as he claims, he did
take money into Jamaica and return to Baltimore with a large quantity
of cocaine. He then attempted to return to Jamaica with another large
sum of money. That necessarily involved some planning on his part.
He committed three criminal acts, on three separate days (October 10,
12 and 31, 1997).3 Finally, Eaton's criminal activities spanned three
weeks. Therefore, for the same reasons that Glick's conduct was not
aberrant, Eaton's conduct is not aberrant.

Eaton's arguments to the contrary are not persuasive. He first con-
tends that we must revisit Glick in light of Koon v. United States, 516
U.S. 81, 91 (1996), because Koon created an abuse of discretion stan-
dard for departures from the Guidelines and created virtually limitless
avenues for departures, including departures for multiple acts of aber-
rant behavior. That argument is misplaced. Eaton is correct in assert-
ing that Koon creates an abuse of discretion standard for departures
from the Guidelines. See id. However, Koon also recognized that
errors of law are abuses of discretion. See id. at 100.

Moreover, Eaton misunderstands what the district court did. The
district court did not create a new departure for multiple acts of aber-
rant behavior; rather, it stated that the multiple acts committed by
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3 Eaton and the government dispute the severity of the crime with
which he could be charged for transporting the money into Jamaica. The
government claims that he violated 18 U.S.C. § 1956(a) (1996), a money
laundering statute. By contrast, Eaton claims that he only violated 31
U.S.C. § 5316 (1996), a statute requiring the reporting of the transporta-
tion out of the country of sums in excess of $5,000. In any event, his
activity was criminal.

                     4
Eaton were legally equivalent to the single act contemplated by the
Guidelines. See App. at 29 ("I don't think that the fact that somebody
sins twice in a short period of time, commits two different acts of sin,
if that is what it be, is really legally distinct from somebody doing
something just once."). Thus, the Supreme Court's recognition in
Koon of a district court's discretionary authority to depart from the
Guidelines on bases not set forth therein simply is not implicated in
the instant case. On the other hand, Glick, which defines a "single act
of aberrant behavior" in our circuit, is implicated and controls.

Eaton's other arguments are similarly unfounded. He argues that
our definition of single act is "absurd," and points out that both the
First and Eighth Circuits have rejected our definition of a single act
of aberrant behavior. See United States v. Kalb , 105 F.3d 426, 429-30
(8th Cir. 1997); United States v. Grandmaison , 77 F.3d 555, 563 (1st
Cir. 1996). However, a closer look at Kalb reveals that the court
merely concluded that departures for aberrant behavior need not be
confined to "single acts." See id. at 429 n.2 ("The inquiry after Koon
is whether any other kind of `aberrant behavior' may ever warrant a
departure.").4 Grandmaison expanded the aberrational behavior
departure to an extent that we expressly rejected in Glick. See
Grandmaison, 77 F.3d at 563. Therefore, neither case helps Eaton.

Eaton also argues that: (1) the reference in the Guidelines to "single
acts of aberrant behavior," see U.S.S.G., Ch. 1, Pt. A, 4(d) (1997),
makes no mention of the concepts of "spontaneity" or "thoughtless-
ness"; and (2) such a restrictive view of aberrant acts essentially guar-
antees that no one could ever meet the test.
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4 Eaton and the government dispute whether aberrant behavior is a neu-
tral factor (i.e., neither encouraged nor discouraged) or an encouraged
factor. While neutral factors -- factors the Commission expressly allow
but do not assign value to -- are to be employed only where they exist
to such an extent that the case is no longer in the heartland, see United
States v. Brock, 108 F.3d 31, 35 (4th Cir. 1997), encouraged factors may
freely be considered because the only problem was that the Commission
simply did not consider them. See Koon, 518 U.S. at 94. Based on the
Commission's statement that it "has not dealt with the single acts of
aberrant behavior," see U.S.S.G. § 14(d), it appears that it is an encour-
aged factor, because the guideline acknowledges that it has not ade-
quately addressed the issue.

                    5
While it is true that the Guidelines do not mention the words "spon-
taneous" or "thoughtless," it is also true that the Guidelines provide
no definition or guidance for interpreting the phrase "single act of
aberrant behavior." The Seventh Circuit, in United States v. Carey,
895 F.2d 318, 325 (7th Cir. 1990), reasoned that"spontaneous" and
"thoughtless" acts more aptly fit the definition of "aberrational behav-
ior" because such acts are more likely to be atypical or "aberrant" than
are acts that are "the result of substantial planning." Id. We agreed
with that assessment in Glick, as that view properly takes into account
the concept that "aberrant behavior" means more than simply that it
is the defendant's first offense. See id. (noting that the Guidelines
already considered the treatment of first offenders in 28 U.S.C.
§ 994(j)). Once a defendant engages in an ongoing criminal enterprise
that requires some planning, as Eaton has, the behavior is less aber-
rant.

Moreover, the departure is not completely unavailable to a defen-
dant. The Carey court stated that the type of behavior qualifying for
a departure on the basis of aberrant behavior resembles that of Robert
Russell in United States v. Russell, 870 F.2d 18, 19-20 (1st Cir. 1989).
In that case, the defendant was an armored truck driver who decided
to keep some extra money mistakenly handed to his partner as the two
were making a delivery. See id. at 19. Russell's conscience prevailed
and he returned the money a week later, admitted guilt, and fully
cooperated with the government. See id. While we make no judgment
as to whether Russell's behavior passes muster under Glick, it is clear
that Russell's actions more closely fit the paradigm of "aberrant
behavior" than do Eaton's.5 More generally, we note that departures
are by definition intended to be rare; they are reserved for the excep-
tion that takes the case out of the "heartland" of cases for which
defendants receive similar sentences. See Koon , 518 U.S. at 98;
Brock, 108 F.3d at 34.
_________________________________________________________________

5 In Grandmaison, the First Circuit stated that those adhering to our
view must recognize that even Russell involved more than just a single
act (i.e., his decision to take the money, his keeping it for a week). How-
ever, the number of actions involved is just one of the factors that we
analyzed in refusing to depart in Glick. Russell's actions involved neither
the level of planning nor the length of time that Eaton's actions did.

                    6
Finally, Eaton argues that he is an otherwise model citizen who
suffered from a temporary lapse in judgment. We do recognize that
Eaton is a hard working, generally good citizen with no prior criminal
background who allowed life's pressures to get the better of him.
However, when he was arrested, he was attempting to make his sec-
ond trip to Jamaica to participate in his in-laws' criminal endeavors.
There was no evidence that the second trip would be his last. As a
result, we cannot conclude that his behavior was aberrant. Moreover,
as we stated, "single act of aberrant behavior" is not synonymous with
"first offense." See Glick, 946 F.2d at 338.

III.

In addition, the government has argued that the district court relied
on forbidden factors, such as socio-economic status, in departing
downward in Eaton's sentence. See Koon, 518 U.S. at 93-94 (stating
that the Commission forbids consideration of economic hardship and
socio-economic status is departing from the Guidelines). However, in
light of our finding that the district court misconstrued the definition
of a single act of aberrant behavior, we need not address that issue.

Accordingly, we vacate Eaton's sentence and remand the case to
the district court to resentence him without relying on the departure
for aberrant behavior.

VACATED AND REMANDED

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