                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          APR 12 2005

                                 TENTH CIRCUIT                       PATRICK FISHER
                                                                                Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellant,
                                                        No. 03-3241
 v.                                           (D.C. No. 02-CR-10182-01-JTM)
                                                          (Kansas)
 STACIE K. CRASS,

          Defendant-Appellee.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Circuit Judge, PORFILIO, Senior Circuit Judge, and
MURPHY, Circuit Judge.


      Stacie Crass pled guilty to one count of illegal use of a communication

device to facilitate the commission of a felony in violation of 21 U.S.C. § 843(b).

Based on a total offense level of 29 and criminal history category of II, Ms.

Crass’ sentencing guidelines range was 97 to 121 months of imprisonment.

Because the statutory maximum penalty for a violation of 21 U.S.C. § 843(b) is


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
four years, Ms. Crass’ guideline range was capped at forty-eight months pursuant

to U.S.S.G. § 5G1.1(a). The district court sentenced Ms. Crass to twenty-one

months incarceration, departing downward from the guidelines sentence on two

grounds: (1) exceptional post-offense rehabilitation and (2) diminished capacity

as a result of her unmedicated bi-polar condition. The government appeals. We

reverse in part and remand for resentencing.

      After noticing some suspicious activity involving a Jeep and a Pontiac,

police officers stopped the Jeep, which was driven by Ms. Crass, for traffic

violations. Jonas Crass, her husband, was a passenger in the Jeep. After citing

Ms. Crass for traffic infractions, officers asked for consent to search the vehicle.

When Ms. Crass refused, the officers summoned a drug dog, which alerted to the

outside of the Jeep. Mr. and Ms. Crass were placed in custody and transported to

police headquarters. During a police interview, Mr. Crass admitted to selling two

pounds of marijuana to Robert Rotramel the evening of the traffic stop. The

Pontiac was located later and two pounds of marijuana were found inside.

      Ms. Crass confirmed her husband’s version of events. She also informed

the police there was approximately one-half pound of methamphetamine at her

house, left there by her husband’s friend, Robert Montoya, who commonly sold

methamphetamine. The officers obtained a waiver to search the Crasses’ home

and discovered 67.04 grams of actual methamphetamine on the premises. Ms.


                                         -2-
Crass subsequently pled guilty to one count of illegal use of a communication

device to facilitate the commission of a felony. In sentencing her, the district

court departed downward to a sentence of twenty-one months incarceration.

      Prior to the Supreme Court’s decision in United States v. Booker, 125 S. Ct.

738 (2005), sentencing courts could depart from the applicable guideline range in

criminal cases if “the court [found] that there exist[ed] an aggravating or

mitigating circumstance of a kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission in formulating the guidelines.” 18

U.S.C. § 3553(b)(1). In a pre-Booker review of a sentencing departure, we apply

the four steps outlined in United States v. Jones, 332 F.3d 1294, 1299-1300 (10th

Cir. 2003). 1 First, we ascertain whether the court set forth its specific reasons for

departure. 18 U.S.C. § 3742(e)(3)(A); id. § 3553(c)(2). Second, we consider, de

novo, “whether the factors the district court relied upon advance the objectives set

forth in section 3553(a)(2)” and ensure that the court’s reliance on those factors

did not violate any specific prohibition in the guidelines. Jones, 332 F.3d at

1299. Third, we determine, de novo, whether the factors the district court relied


      1
         Ms. Crass argued in a F ED . R. A PP . P. 28(j) letter that we should conduct a
reasonableness review pursuant to United States v. Booker, 125 S. Ct. 738 (2005),
and affirm her sentence. This court does not consider arguments raised for the
first time in 28(j) letters. See United States v. Sanchez-Cruz, 392 F.3d 1196, 1201
(10th Cir. 2004) (declining to consider Blakely argument first raised in a 28(j)
letter); United States v. Lindsey, 389 F.3d 1334, 1335 n.1 (10th Cir. 2004) (same).


                                          -3-
upon are “authorized under section 3553(b)” and “justified by the facts of the

case.” Id. at 1299-1300 (citations omitted). Finally, we review the degree of

departure for reasonableness and do not reverse absent an abuse of discretion. Id.

at 1300.

      In its Statement of Reasons, the district court concluded that Ms. Crass’

conduct fell sufficiently outside the applicable guideline heartland to warrant

downward departures. The court satisfied the requirement of setting forth its

reasons for departure with the following specific reasons: (1) Ms. Crass’

“exceptional rehabilitative efforts” and (2) her “diminished capacity at the time

the offense was committed.” Aplt. App., vol. I at 115. The government does not

contend the factors relied on by the district court would never be valid grounds

for a departure. It asserts instead that the factors are not justified by the record in

this case. We agree insofar as the departure was based on exceptional post-

offense rehabilitative efforts.

      The government points out that “post-offense rehabilitation is accounted for

in the context of an acceptance of responsibility adjustment under U.S.S.G. §

3E1.1, comment. (n.1(g)), and thus may not serve as a basis for departure unless it

is present to an exceptional degree.” United States v. Benally, 215 F.3d 1068,

1075 (10th Cir. 2000); see also United States v. Whitaker, 152 F.3d 1238, 1240

(10th Cir. 1998) (“post-offense rehabilitation can only be an appropriate ground


                                           -4-
for downward departure if the efforts are of a magnitude that the defendant’s

situation cannot be considered typical of those where an acceptance of

responsibility adjustment is granted”). Thus, we must determine whether the

record supports the court’s conclusion that Ms. Crass’ rehabilitation was

sufficiently exceptional to warrant a departure from the mandatory guidelines.

      In assessing Ms. Crass’ post-offense rehabilitation, the district court relied

on two reports, one from the Women’s Recovery Center of Central Kansas and

one from the Wichita Area Sexuality Assault Center. The former, entitled

“Footprints Program Progress Report,” detailed that Ms. Crass had “been using

some type of substance for approximately twenty years, with only brief periods of

abstinence.” Aplt. App., vol. I at 51. Ms. Crass’ counselor noted that she attends

weekly group counseling and at least three weekly twelve-step meetings. Id. The

report stated that Ms. Crass was becoming less self-centered, improving her

parenting skills, gaining empathy for her peers, and working on avoiding

manipulative patterns. Id. at 51-52. The report concluded: “If [Ms. Crass]

continues to make recovery a priority and work on her core issues, she has a good

chance of succeeding in recovery. Her prognosis is currently Fair to Guarded.”

Id. at 52. The Wichita Area Sexual Assault Center letter added that Ms. Crass

“has been attending support group and one-on-one crisis counseling sessions.” Id.

at 53. In support group, she “has participated and provided valuable insight to


                                         -5-
members. In one-on-one crisis counseling sessions, she is making many

discoveries about the link between addiction and sexual violence.” Id.

      The district court’s decision to depart downward on Ms. Crass’ sentence

was based on her “complete detoxification and her recovery from continuing drug

addiction,” id. at 100, and, indeed, Ms. Crass’ post-offense behavior has been

laudable. The government, however, emphasizes that Ms. Crass’ participation in

the substance abuse program was ordered as a condition of her pre-trial release.

Id. at 24. Moreover, Ms. Crass was instructed to “refrain from any use of

alcohol” or other controlled substances. Id. She was subject to random drug and

alcohol testing and screening, and she was told that:

      [a] violation of any of [her] conditions of release may result in the
      immediate issuance of a warrant for [her] arrest, a revocation of release, an
      order of detention, and a prosecution for contempt of court and could result
      in a term of imprisonment, a fine, or both.

Id. at 25. The Women’s Recovery Center of Central Kansas’ “Client Guidelines

and Behavioral Expectations” required all clients to “be completely drug free

during treatment . . . Use of alcohol or other drugs of any kind is prohibited.” Id.

at 11. A violation of the Women’s Recovery Center guidelines would “result in

an Administrative Discharge.” Id.

      In sum, Ms. Crass was released on the condition that she participate in an

inpatient or outpatient substance abuse therapy and counseling program and be

subject to random drug and alcohol screening. She has certainly complied with

                                         -6-
the formal requirements of the program; she has attended her family and group

counseling sessions and she has remained drug free and sober. Nonetheless, Ms.

Crass’s post-arrest behavior reflects little more than her compliance with the

conditions of her release and the requirements of the Women’s Recovery Center.

See Benally, 215 F.3d at 1076, 1077 (reversing downward departure where

defendant’s “post-arrest sobriety reflects little more than his compliance with the

conditions of his release to a half-way house”). This was simply not enough

under the mandatory guidelines regime which existed pre-Booker. 2 The

acceptance of responsibility guideline, U.S.S.G. § 3E1.1 cmt. n.1(g), specifically

contemplates an adjustment for post-offense rehabilitative effort, and Ms. Crass

received that adjustment. Absent “additional evidence or explanation as to why

[Ms. Crass’] rehabilitative efforts went beyond that contemplated by U.S.S.G. §

3E1.1,” id., we must hold that the district court’s three-level downward departure


      2
        Compare United States v. Kapitzke, 130 F.3d 820, 823-24 (8th Cir. 1997)
(approving a downward departure for extraordinary post-offense rehabilitation
where defendant had voluntarily entered sex offender and chemical dependency
treatment before he was aware that federal charges would be filed against him;
“attended some type of therapy or support group almost every night”; “received
excellent progress reports”; submitted reports that the director of the sex offender
treatment plan was “extremely impressed” with his efforts and believed that
defendant had “a high probability of success”; submitted reports that his chemical
dependency counselor “had never seen a client work harder” than defendant in
seven years and that defendant’s prognosis was “very good”; and submitted a
report from his physician that he had “shown an extraordinary desire to recover
from all of his addictions, as well as an ‘extraordinary willingness to do whatever
necessary to achieve that end’”).

                                         -7-
for her post-arrest behavior was not justified by the facts of this case.

      Because we reverse on the basis of the post-offense rehabilitation departure

and must remand for resentencing in any event, we need not decide whether the

district court’s departure on the basis of diminished capacity was warranted. See

United States v. Cano-Silva, No. 03-4059, 03-4108, 2005 WL 698983, at *6

(10th Cir. Mar. 28, 2005) (reversing on one ground and remanding for

resentencing in light of Booker without addressing second ground). Ms. Crass’

resentencing proceeding should be conducted pursuant to the Supreme Court’s

decision in Booker. The district court may determine anew whether Ms. Crass

was entitled to a downward departure under the guidelines and then “take account

of the Guidelines together with other sentencing goals” in imposing her sentence.

Booker, 125 S. Ct. at 764; see also Cano-Silva, 2005 WL 698983, at *6.

      We REVERSE the decision to depart downward based on extraordinary

post-arrest rehabilitation and REMAND to the district court with orders to vacate

the sentence and resentence Ms. Crass consistent with Booker.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




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