                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-1103
                                   ___________

United States of America,               *
                                        *
             Appellant,                 *
                                        * On remand for reconsideration from
      v.                                * the United States Supreme Court.
                                        *
Ruth Kane,                              *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: September 22, 2008
                                Filed: January 14, 2009
                                 ___________

Before MURPHY, HANSEN, and RILEY, Circuit Judges.
                           ___________

RILEY, Circuit Judge.

      Ruth Kane (Kane) repeatedly restrained and compelled her nine-year-old
daughter to submit to the sexual gratification of a pedophile in exchange for Kane’s
receipt of $20. This sexual abuse occurred approximately twice a week for more than
200 molestations. A jury found Kane guilty of aggravated sexual abuse and
conspiracy to commit aggravated sexual abuse. The district court sentenced Kane to
210 months imprisonment.

     Kane appealed. We affirmed Kane’s conviction, but vacated her sentence and
remanded for resentencing pursuant to United States v. Booker, 543 U.S. 220 (2005).
See United States v. Kane, 148 Fed. Appx. 565, 568 (8th Cir. 2005) (unpublished).
The district court resentenced Kane to 120 months imprisonment. The government
appealed. We reversed, holding Kane’s 120-month sentence was unreasonable. See
United States v. Kane, 470 F.3d 1277, 1282 (8th Cir. 2006) (Kane II). The Supreme
Court vacated and remanded for reconsideration in light of Gall v. United States, 128
S. Ct. 586 (2007). Having considered Gall’s impact on Kane’s sentence, we again
vacate the sentence of the district court and remand for resentencing.

I.    BACKGROUND
      In Kane II we set forth the factual background:

              At trial, both Kane’s minor daughter and Kane’s co-defendant, Joe
      J. Champion (Champion), testified Champion sexually abused Kane’s
      daughter repeatedly over a two-year period. The first molestation
      occurred when Kane’s daughter was nine years old. Kane’s daughter
      testified Kane took her into the bathroom, where Champion was waiting,
      and [Kane] told her [daughter] to take off her clothes. Kane sat on the
      toilet and held her daughter on her lap, while Champion removed his
      pants and then put his penis against Kane’s daughter’s vagina. Kane’s
      daughter testified it hurt and she passed out. Kane’s daughter indicated
      when she woke up she found blood on her thigh and started to cry. Kane
      told her to clean up the mess.

             According to Kane’s daughter, the molestation occurred
      approximately twice a week. Kane’s daughter testified Kane and
      Champion would typically take her into the bathroom, and Kane would
      restrain her on Kane’s lap while Champion rubbed his penis against her
      vagina until he ejaculated on her stomach.

            Kane’s daughter testified the molestation also occurred in Kane’s
      bedroom. Kane’s daughter testified she would lie on the bed and
      Champion would rub his penis against her vagina until Champion
      ejaculated. Throughout the encounter, Kane would either stand against
      the bedroom door or lie with her daughter on the bed. When the
      encounter was over[,] Kane would wipe away Champion’s semen as

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      Kane’s daughter cried. Champion abused Kane’s daughter in this
      manner more than 200 times. Kane’s daughter and Champion testified
      Kane received payments of $20 from Champion as compensation for
      providing her daughter for Champion’s sexual gratification.

Kane II, 470 F.3d at 1279.

       At Kane’s sentencing, the district court indicated its reasons for the variance
were (1) the district court’s finding Kane posed a low risk of recidivism; (2) Kane’s
prior history of substance abuse and mental health issues; (3) the district court’s
finding Kane was vulnerable, and participated in her daughter’s abuse because she
was influenced by Champion; (4) Kane’s post-conviction efforts at rehabilitation; and
(5) the district court’s belief Champion, who was sentenced to 180 months
imprisonment, was “far more culpable” than Kane. We reversed, holding Kane’s 120-
month sentence was unreasonable. Kane II, 470 F.3d at 1282. We concluded Kane’s
sentence was unreasonable because (1) there was no evidence in the record to support
the conclusion Kane probably will not repeat this type of crime; (2) there was no
evidence in the record linking Kane’s mental health issues or drug abuse to Kane’s
crimes against her daughter; (3) there was no evidence in the record indicating Kane
committed these crimes because she was influenced by Champion; (4) a variance
based on Kane’s post-sentence rehabilitation efforts was inappropriate; (5) the district
court failed sufficiently to consider the seriousness of the offense; and (6) Kane’s
sentence, not Champion’s, reflected an unwarranted sentencing disparity. Id. at 1780-
82. The Supreme Court vacated and remanded for reconsideration in light of Gall.

II.    DISCUSSION
       A.     Standard of Review
       “We review all sentences, whether inside or outside the Guidelines range, under
a deferential abuse of discretion standard.” United States v. Pepper, 518 F.3d 949, 951
(8th Cir. 2008) (citing Gall, 128 S. Ct. at 597). “First, we will ensure that the district
court did not commit a significant procedural error, such as miscalculating the

                                           -3-
Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain why a sentence was chosen.” United States v. Braggs, 511 F.3d
808, 812 (8th Cir. 2008) (citing Gall, 128 S. Ct. at 597).

        Under Gall, we may no longer require extraordinary circumstances to justify a
sentence outside the Guidelines range. Gall, 128 S. Ct. at 595. However, “a district
judge must give serious consideration to the extent of any departure from the
Guidelines and must explain his conclusion that an unusually lenient or an unusually
harsh sentence is appropriate in a particular case with sufficient justifications.” Id. at
594. If, after an “individualized assessment based on the facts presented,” the district
court “decides that an outside-Guidelines sentence is warranted, [the district court]
must consider the extent of the deviation and ensure that the justification is
sufficiently compelling to support the degree of the variance.” Id. at 597. It is
“uncontroversial that a major departure should be supported by a more significant
justification than a minor one.” Id. “[A]n abuse of discretion may occur when (1) a
court fails to consider a relevant factor that should have received significant weight;
(2) a court gives significant weight to an improper or irrelevant factor; or (3) a court
considers only the appropriate factors but in weighing those factors commits a clear
error of judgment.” United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005)
(internal quotation marks and citation omitted). See also Gall, 128 S. Ct. at 597.

       “Assuming that the district court’s sentencing decision is procedurally sound,
the appellate court should then consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard . . . tak[ing] into account the totality
of the circumstances, including the extent of any variance from the Guidelines range.”
Gall, 128 S. Ct. at 597. We “may consider the extent of the deviation, but [we] must
give due deference to the district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance.” Id.



                                           -4-
       The government argues Kane’s sentence was procedurally unsound because the
district court considered clearly erroneous facts, gave significant weight to improper
and irrelevant factors, failed to consider a relevant factor that should have received
significant weight, and failed adequately to explain Kane’s unusually lenient sentence
with sufficient justifications. The government also maintains Kane’s sentence was
substantively unreasonable, arguing a “totality of the circumstances” analysis must
take into account the horrific facts and shocking breach of parental trust in this
case—Kane’s active and willing participation in the sexual violations of her own
daughter, in exchange for $20, on more than 200 occasions.

      B.      Clearly Erroneous Findings
              1.     Likelihood of Recidivism
       At Kane’s sentencing, the district court stated, without elaboration: “[a]nd I
don’t think you pose a danger to the public or likelihood that you’ll be a recidivist.”
In Kane II, we determined “[n]othing in the record supports the district court’s
conclusion Kane probably will not repeat this type of crime.” Kane II, 470 F.3d at
1281. Kane argues her age and the Sentencing Commission’s study on recidivism,
which she included with her sentencing memorandum, provided a sufficient basis for
the district court’s determination Kane posed a low risk of recidivism. We disagree.
The facts show Kane repeated her crime over and over again. Instead of protecting
her daughter and choosing to stop participating in her daughter’s abuse after the first,
or 50th, or 150th molestation, Kane continued to hold her daughter down or block the
door on more than 200 occasions while Champion sexually violated the child.

       Kane does not contend Gall somehow alters our conclusion on the recidivism
issue; Kane simply argues our conclusion is wrong. Kane’s argument merely repeats
the argument she presented in Kane II, which we rejected. See Kane II, 470 F.3d at
1281. Our sole inquiry here is whether and to what extent Gall impacts our reasoning
or our decision in Kane II. Gall expressly recognizes it is procedural error to “select[]
a sentence based on clearly erroneous facts.” Gall, 128 S. Ct. at 597. The district

                                          -5-
court’s finding Kane posed a low likelihood of recidivism, which was clearly
erroneous before Gall, remains clearly erroneous after Gall. We therefore conclude
the district court procedurally erred by basing Kane’s unusually lenient sentence, in
significant part, on its unsupported determination Kane posed a low likelihood of
recidivism.

             2.    Mental Health, Substance Abuse, and Champion’s Influence
       Similarly, Gall has no effect on the validity of our determinations in Kane II
that there was no evidence in the record (1) linking Kane’s past substance abuse or
mental health issues to Kane’s crimes against her daughter, or (2) indicating Kane
committed these crimes because she was influenced by Champion. See Kane II, 470
F.3d at 1281. At Kane’s sentencing, the district court stated, “I believe that you made
yourself vulnerable with all these drugs and alcohol and all that stuff. See, you were
like an accident waiting to happen.” The district court further explained, “I’ve gone
below the guidelines in your case because of your prior history of this substance abuse
as well as your mental health. That made you particularly susceptible to Mr.
Champion’s influence.”

       There is certainly evidence in the record indicating Kane had a past history of
substance abuse and mental health issues. However, many people have substance
abuse and mental health issues, but few, if any, of those people participate in and sell
their minor child to a pedophile for sexual exploitation. We explained in Kane II that
the record is devoid of evidence “linking Kane’s substance abuse or mental illness
with the crimes Kane committed against her daughter. Nor is there evidence in the
record indicating Kane committed these crimes because she was susceptible to, or
influenced by, Champion.” Kane II, 470 F.3d at 1281. The record contains no factual
support for the district court’s theories that Kane’s past substance abuse and mental
health issues caused Kane to be victimized by Champion, thereby minimizing Kane’s
responsibility for, or somehow mitigating, Kane’s crimes against her daughter.



                                          -6-
       Though not specifically argued by the parties, the district court also clearly
erred in its assessment of Kane’s responsibility for her daughter’s abuse. At Kane’s
sentencing, the district court acknowledged Kane “had a big responsibility there,” but
continued, “[a]nd even though you had these problems, you know, you somewhat
abdicated your responsibility.” (Emphasis added). Kane did not “somewhat
abdicate” her responsibility to her daughter, Kane totally abdicated her parental
responsibility.

      The district clearly erred by substantially basing Kane’s unusually lenient
sentence on these unsupported determinations and procedurally abused its discretion.

       C.     Kane’s Post-Sentence Rehabilitation
       The government argues the district court improperly considered Kane’s post-
sentence rehabilitation in granting the 90-month downward variance. We agree. The
district court declared, “And I’m also looking at your efforts at rehabilitation. And
I think you’re doing an admirable job. And so I want to encourage you to continue
in that vein.”

       We recently reaffirmed our circuit precedent that “evidence of [a defendant]’s
post-sentence rehabilitation is not relevant and will not be permitted at resentencing
because the district court could not have considered that evidence at the time of the
original sentencing.” Pepper, 518 F.3d at 953 (quoting United States v. Pepper, 486
F.3d 408, 413 (8th Cir. 2007), vacated, 128 S. Ct. 871 (2008) (in turn quoting United
States v. Jenners, 473 F.3d 894, 899 (8th Cir. 2007))). See also United States v. Sims,
174 F.3d 911, 913 (8th Cir. 1999) (reasoning even though the district court may
consider “a defendant’s rehabilitative efforts up to the time of the original sentencing,
. . . [r]ehabilitation that takes place behind the prison walls after the original
sentencing is not relevant, since the sentencing court obviously could not have
considered it at the time of the original sentencing”) (internal citation omitted)). In
Pepper, we explained, “allowing [post-sentence rehabilitation] evidence to influence

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[a defendant]’s sentence would be grossly unfair to the vast majority of defendants
who receive no sentencing-court review of any positive post-sentencing rehabilitative
efforts.” Pepper, 518 F.3d at 953 (quoting United States v. McMannus, 496 F.3d 846,
852 n.4 (8th Cir. 2007)). We concluded, “Gall does not alter our circuit precedent . . .
that post-sentence rehabilitation is an impermissible factor to consider in granting a
downward variance.” Id. In determining Kane’s sentence, the district court
apparently gave significant weight to Kane’s post-sentence rehabilitation efforts. The
district court procedurally abused its discretion by relying on this irrelevant factor to
justify the dramatic downward variance in Kane’s case.

         D.     Seriousness of Kane’s Offense
         The government also contends the district court erred by failing to consider a
relevant factor in determining Kane’s sentence—“the need for the sentence imposed
. . . to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense” as outlined in 18 U.S.C. § 3553(a)(2)(A).
In Kane II, we concluded “the district court failed to sufficiently consider the
seriousness of the offense,” observing, “[t]he facts in this case are no less than
horrifying and do not support a downward variance of 90 months from the low-end
of the advisory Guidelines range.” Kane II, 470 F.3d at 1280.

       Gall now makes clear that, while the district court is required to consider the
relevant § 3553(a) factors, the district court has wide discretion to weigh the factors
in each case and assign some factors greater weight than others in deciding whether
“the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall, 128 S. Ct.
at 597. Further, we have repeatedly recognized “the district court is not required to
provide a mechanical recitation of the § 3553(a) factors when determining a
sentence.” United States v. Little Hawk, 449 F.3d 837, 840 (8th Cir. 2006) (citing
United States v. Cadenas, 445 F.3d 1091, 1094 (8th Cir. 2006)); accord Kane II, 470
F.3d at 1280 (citing United States v. Lamoreaux, 422 F.3d 750, 756 (8th Cir. 2005)).
“Rather, it simply must be clear from the record that the district court actually

                                          -8-
considered the § 3553(a) factors in determining the sentence.” Little Hawk, 449 F.3d
at 840. See also Rita v. United States, 127 S. Ct. 2456, 2468-69 (2007).

      At sentencing, the government addressed the seriousness of Kane’s offense and
the need for Kane’s sentence to provide just punishment, stating:

      [Calling Champion a] predator, Your Honor, is probably an
      understatement. Trying to force himself into a nine-year-old girl. Save
      for the mother that holds the girl down while this happens. This is a
      despicable crime. The mother told her to stop crying, told her she would
      send her into foster care, told her she would beat her if she didn’t let this
      continue, and told her to clean up the resulting mess. The government
      respectfully suggests that a downward variance in this case would not
      amount to just punishment.

       After Kane’s counsel argued for a downward variance without mentioning
Kane’s conduct, the district court specifically asked Kane’s counsel if he had anything
to say about the facts brought up by the government or the egregiousness of Kane’s
conduct. These statements in the record are sufficient to indicate the district court
considered the seriousness of Kane’s offense, even though the district court made no
reference to the underlying facts of the case or the seriousness of Kane’s conduct in
explaining Kane’s sentence. Following Gall, we cannot conclude the district court
procedurally abused its discretion by failing to consider a relevant § 3553(a) factor.

       E.    Sentencing Disparity
       The government contends the district court erroneously determined Champion
was more culpable than Kane, and thus, Kane deserved a lesser sentence. At Kane’s
sentencing, the district court reasoned, “I still believe that the most culpable person
in this case was your co-defendant, Mr. Champion,” “as I said in terms of the two
individuals, yourself and Mr. Champion, I think he was by far the worst. I think it’s
terrible when anybody takes advantage of lesser persons,” and, “as far as the


                                          -9-
sentencing disparity, I think that Mr. Champion is far more culpable because, see, he
had to think and plot as to who, you know, can I run my program on.”

        In determining an appropriate sentence, a district court considers “the need to
avoid unwarranted sentence disparities among defendants with similar records who
have been found guilty of similar conduct[.]” 18 U.S.C. § 3553(a)(6). In Kane II, we
concluded Kane’s unusually lenient sentence, not Champion’s sentence, reflected an
unwarranted sentencing disparity.1 Kane II, 470 F.3d at 1281-82. We observed “[i]t
is difficult to determine who is more culpable—Champion, a child predator, or Kane,
a mother who repeatedly sold her nine-year-old daughter for $20 to gratify the sexual
pleasures of a child predator.” Id. at 1281. Although one could argue Kane and
Champion are not similarly situated, and our assessment of their comparability would
be different, viewed through the lens of Gall, we now conclude the district court acted
within its broad discretion in resolving this conundrum in Kane’s favor.

       Gall also requires a district judge not only to consider the § 3553(a) factors, but
also to “explain his conclusion that an unusually lenient or an unusually harsh
sentence is appropriate in a particular case with sufficient justifications.” Gall, 128
S. Ct. at 594. Gall specifically recognizes “failing to adequately explain the chosen
sentence” constitutes “significant procedural error.” Id. at 597. There is no doubt
Kane’s sentence constitutes an “unusually lenient sentence” as contemplated by Gall.
Kane’s advisory Guidelines calculation resulted in a base offense level of 37, criminal
history category I, with a Guidelines range of 210 to 262 months. Kane’s base offense
level of 37 was three levels higher than Champion’s because, unlike Champion, Kane
did not accept responsibility for her conduct, instead challenging her guilt at trial.
Kane’s 120-month sentence amounts not only to a 90-month downward variance from

      1
        Champion accepted responsibility for his crimes and testified at Kane’s trial,
resulting in a three-level reduction in Champion’s base offense level. With a base
offense level of 34 and a criminal history category I, Champion’s Guidelines range
was 151 to 188 months. Champion was sentenced to 180 months.

                                          -10-
the bottom of Kane’s own advisory Guidelines range, but also to a 31-month
downward variance from the bottom of Champion’s advisory Guidelines range. Other
than stating, “I think it’s terrible when anybody takes advantage of lesser persons,”
and “[Champion] had to think and plot as to who, you know, can I run my program
on,”2 the district court provided no further insight into the reasons for its
determination Kane deserved a 90-month downward variance because Champion was
more culpable. Though it was within the district court’s discretion to determine
Champion was more culpable than Kane, Champion’s greater culpability in the
abstract is not, by itself, a sufficient justification for the extent of Kane’s unusually
lenient sentence. Thus, the district court committed procedural error by failing
adequately to explain the chosen sentence and failing to support the degree of variance
with sufficient justifications.

       F.     Substantive Reasonableness
       Given the horrifying nature of Kane’s conduct, the fact Kane repeated her
offense against her daughter over 200 times, and Kane’s refusal to accept
responsibility for her role in her daughter’s abuse, we have serious concerns about the
substantive reasonableness of Kane’s 120-month sentence. We doubt the district
court’s remaining “justification is sufficiently compelling to support the degree of the
variance” for the district court’s deviation below the Guidelines range. Gall, 128
S. Ct. at 597. However, because the district court procedurally erred by substantially
basing Kane’s sentence on clearly erroneous factual findings, relying on Kane’s post-
sentence rehabilitation, and otherwise failing adequately to explain Kane’s unusually
lenient sentence with sufficient justifications, we do not reach the issue of whether
Kane’s sentence was substantively reasonable. See id. at 594, 597 (“Assuming that
the district court’s sentencing decision is procedurally sound, the appellate court
should then consider the substantive reasonableness of the sentence imposed under an


      2
     As discussed above, the record contains no support for the theory Kane
committed her crimes because she was susceptible to, or influenced by, Champion.

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abuse of discretion standard.”) See also Pepper, 518 F.3d at 953 (declining to reach
the substantive reasonableness of a sentence where the district court committed
procedural error).

III.   CONCLUSION
       We again vacate Kane’s sentence and remand for resentencing.
                      ______________________________




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