                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                                        PUBLISH
                                                                               AUG 17 1998
                      UNITED STATES COURT OF APPEALS
                                                                          PATRICK FISHER
                                                                                   Clerk
                                FOR THE TENTH CIRCUIT



 UNITED STATES OF AMERICA,
        Plaintiff - Appellee,
 v.                                                  No. 97-5203
 JOHN HUDSON WHITAKER,


        Defendant - Appellant.



           APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE NORTHERN DISTRICT OF OKLAHOMA
                         (D.C. No. 96-CR-12-H)


Submitted on the briefs:

Gerald L. Hilsher of Shipley, Jennings & Champlin, P.C., Tulsa, Oklahoma, for
Defendant-Appellant.

Stephen C. Lewis, United States Attorney, and Allen J. Litchfield, Assistant United States
Attorney, Office of the United States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.

                                _________________________

Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

                                _________________________

McKAY, Circuit Judge.

                                _________________________
       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

       Defendant appeals the sentence imposed on him by the district court following his

plea of guilty to conspiracy to travel interstate to facilitate a narcotics enterprise in

violation of 18 U.S.C. § 1952(a)(3). He asserts that the district court erred by refusing to

depart downward from the sentencing range applicable under the U.S. Sentencing

Guidelines because of his post-offense rehabilitation efforts. The district court found that

it lacked the authority to consider this factor as a basis for downward departure, based on

our holding in United States v. Ziegler, 39 F.3d 1058, 1061 (10th Cir. 1994). See R., Vol.

II at 432, 435. However, after this court decided Ziegler, the Supreme Court held in

Koon v. United States that any potential basis for a downward departure not specifically

prohibited by the Sentencing Commission may be considered by a district court. See

Koon v. United States, 518 U.S. 81, 108-09 (1996). We conclude that Koon allows

exceptional efforts at drug rehabilitation to be considered as a basis for a downward

departure from the applicable guideline sentence because these efforts were not expressly

forbidden as a basis for departure by the Sentencing Commission. Therefore, we vacate

the sentence imposed and remand to allow the district court to consider whether

Defendant’s rehabilitation efforts were extraordinary or exceptional, and thus an


                                               -2-
appropriate basis for a downward departure.

       Defendant filed a Motion for Downward Departure prior to sentencing, asserting

that his exemplary post-offense efforts at rehabilitation, including community service and

his continued drug-free status, provided a basis for a downward departure from the

applicable sentencing range. The district court rejected Defendant’s argument that the

Supreme Court’s holding in Koon effectively overruled this court’s holding in Ziegler

that even extraordinary efforts at drug rehabilitation could not be a basis for a downward

departure. Despite Defendant’s numerous objections, the district court adopted the

findings of the presentence report and imposed the maximum guideline sentence of sixty

months imprisonment.

       This court may “exercise jurisdiction to review a sentencing court’s refusal to

depart from the sentencing guidelines [only] in the very rare circumstance that the district

court states that it does not have any authority to depart from the sentencing guideline

range for the entire class of circumstances proffered by the defendant.” United States v.

Castillo, 140 F.3d 874, 887 (10th Cir. 1998). When a district court does not correctly

understand its authority to depart from the guidelines this court may exercise jurisdiction

to review the refusal to grant a departure. See United States v. Contreras, 59 F.3d 1038,

1040 (10th Cir. 1995).

       District courts must impose a criminal sentence within the range resulting from a

proper application of the U.S. Sentencing Guidelines “unless the court finds that there


                                            -3-
exists 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 that

should result in a sentence different from that described.” 18 U.S.C. § 3553(b). In

Ziegler we held that the fact that defendant made extraordinary efforts at drug

rehabilitation was not a mitigating factor not adequately taken into consideration by the

guidelines, and, therefore, efforts at rehabilitation could not be a basis for departure. See

Ziegler, 39 F.3d at 1061-62.

       After we decided Ziegler, the Supreme Court “illuminated” the analysis a court

should employ to determine when it may depart from the applicable guideline range.

United States v. Brock, 108 F.3d 31, 33 (4th Cir. 1997). The Supreme Court stated that a

federal court reviewing a decision to depart must first determine whether the Sentencing

Commission actually proscribed consideration of the proposed basis for departure. See

Koon, 518 U.S. at 109.

       Thus, the unmistakable teaching of Koon is that only those factors on which
       the Commission has forbidden reliance–e.g., drug or alcohol dependence or
       abuse; race, sex, national origin, creed, religion, or socioeconomic status;
       lack of youthful guidance or similar circumstances indicating a
       disadvantaged upbringing; personal financial difficulties or economic
       pressure on a trade or business–never may provide an appropriate basis for
       departure. All others potentially may provide a basis for departure under
       appropriate circumstances.

Brock, 108 F.3d at 34-35 (citations omitted) (overruling United States v. Van Dyke, 895

F.2d 984, 986-87 (4th Cir.), cert. denied, 498 U.S. 838 (1990)). Although addiction and

abuse are excluded from consideration as an appropriate basis for departure, this

                                             -4-
prohibition does not expressly forbid consideration of post-offense drug rehabilitation

efforts. Therefore, rehabilitation may provide a basis for departure. See Brock, 108 F.3d

at 35.

         Additionally, the correct inquiry for whether a potential basis for departure was

considered by the Sentencing Commission focuses on whether the potential basis is

addressed by the “guidelines, policy statements, or official commentary and whether it is

encompassed within the heartland of situations to which the guidelines were intended to

apply.” Brock, 108 F.3d at 33. Because rehabilitation efforts are taken into consideration

when determining a defendant’s eligibility for an acceptance of responsibility guideline

adjustment, see U.S.S.G. § 3E1.1(a) commentary at n.1(g), post-offense rehabilitation can

only be an appropriate ground 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.1 See Koon, 518 U.S. at 93-96 (emphasizing that

before a court exercises its discretion to depart the defendant must establish the existence

of unique circumstances which remove the case from the “heartland” of the applicable

guideline, presenting a situation where departure is truly warranted); United States v.

Kapitzke, 130 F.3d 820, 823 (8th Cir. 1997); United States v. Sally, 116 F.3d 76, 79 (3d

Cir. 1997); Brock, 108 F.3d at 34; United States v. Barton, 76 F.3d 499, 504 (2d Cir.




        The court granted Defendant a three-level adjustment for acceptance of
         1

responsibility. See R., Vol. II at 354, 435.

                                              -5-
1996); United States v. Williams, 948 F.2d 706, 710-11 (11th Cir. 1991); United States v.

Sklar, 920 F.2d 107, 115-17 (1st Cir. 1990). A defendant’s efforts at drug rehabilitation

are to be evaluated by the same standards as a defendant’s efforts at any other form of

rehabilitation.

       Because the district court’s decision was premised on our holding in Ziegler,

which has been effectively overruled by Koon,2 we REMAND to the district court to

determine whether Defendant is entitled to a downward departure from the sentence

applicable under the guidelines based on his efforts at drug rehabilitation. We have

reviewed Defendant’s other claims for relief and find them without merit.

       REMANDED.




       2
        “[A] single panel is permitted to reconsider a previous Tenth Circuit decision to
the extent the new [Supreme Court] case law invalidates our previous analysis.” Hurd v.
Pittsburg State Univ., 109 F.3d 1540, 1542 (10th Cir. 1997).

                                            -6-
