                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-3001
                                   ___________

United States of America,               *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Southern District of Iowa.
Brian Michael Gall,                     *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: February 14, 2006
                                Filed: May 12, 2006
                                 ___________

Before LOKEN, Chief Judge, BOWMAN and SMITH, Circuit Judges.
                             ___________

SMITH, Circuit Judge.

       Brian Michael Gall pleaded guilty to conspiracy to distribute a mixture and
substance containing methylenedioxymethamphetamine ("MDMA"), a Schedule I
controlled substance, in violation of 21 U.S.C. §§ 841(b)(1)(C) and 846. The district
court imposed a sentence of 36 months' probation and a $100 special assessment. The
government appeals the sentence, arguing that it is unreasonable. We conclude that
Gall's sentence is unreasonable. Accordingly, we remand the case for resentencing.

                                  I. Background
     In February or March 2000, Gall entered into an agreement with Luke
Rinderknect and others to distribute MDMA, also known as ecstacy. Initially, Gall
purchased 100 ecstasy tablets from Rinderknect on six occasions between February
and May 2000. During this period, Gall traveled from Iowa City, Iowa, to Pell, Iowa,
to purchase ecstasy from Rinderknect.

       In May 2000, Rinderknect decided to move to Burbank, California. Before
leaving Iowa, he arranged a meeting with Gall and Theodore Sauerberg to facilitate
the ongoing distribution of ecstasy in his absence. During the meeting, the parties
agreed that Sauerberg would accept delivery of ecstasy from Rinderknect and transfer
the drugs to Gall. When Gall received the drugs from Sauerberg, he distributed them
to other individuals, including Ross Harbison, Jason Story, Brooks Robinson, Mark
Goodding, and Corey Coleman. After receiving payment from his customers, Gall
delivered the drug proceeds to Sauerberg. Sauerberg then delivered the cash to
Rinderknect.

       One month after the initial meeting in Iowa City, Rinderknect mailed a package
containing 5,000 tablets of ecstasy to Sauerberg in Iowa City. Sauerberg then
distributed the ecstasy to Gall in 1,000 tablet increments. Pursuant to the agreement,
Gall distributed the ecstasy to other individuals, including Coleman who purchased
a total of 1,500 to 2,000 tablets. Gall knew his customers were redistributing the
drugs within the community. As the drugs were distributed, Gall paid Sauerberg for
the ecstasy. After Sauerberg collected the $85,000 purchase price from Gall, he
contacted Rinderknect who flew to Iowa and obtained the cash.

       Approximately one to two months later, Rinderknect mailed a second package
containing 5,000 tablets of ecstasy to Sauerberg in Iowa City. Again, Sauerberg
distributed the ecstasy to Gall in 1,000 tablet increments. After distributing the
ecstasy, Gall remitted $85,000 to Sauerberg, who delivered the money to
Rinderknect.

       In September 2000, Gall decided to leave the drug conspiracy. Rinderknect
traveled to Iowa City and met with Gall. Gall told Rinderknect that he was getting out

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of the drug business over concerns that Sauerberg was telling too many people about
their ecstasy distribution business. Rinderknect sold no more ecstasy to Gall as he
requested. According to Gall, he stopped selling ecstasy in August 2000 when he
moved in with a new roommate and started studying for his major at the University
of Iowa. Goodding testified that Gall stopped selling ecstasy in August 2000 because
he did not like the trouble of having to deal with people. Gall estimated that he made
$30,000 while a member of the ecstasy conspiracy.

       After college graduation in 2002, Gall moved to Mesa, Arizona. Federal agents
approached Gall in Arizona, requesting to speak with him about his involvement with
ecstasy sales while living in Iowa. Unknown to Gall, law enforcement had already
arrested Rinderknect and Sauerberg, who had implicated Gall. Gall admitted to the
agents his involvement in the conspiracy. In 2004, Gall was charged in an indictment
with conspiracy to distribute MDMA. Gall made arrangements to return to Iowa from
his home in Winter Park, Colorado, when he learned there was a federal arrest
warrant issued for him. Upon his return to Iowa, he turned himself in to federal
authorities.

       Because Gall withdrew from the conspiracy in September 2000, the parties
stipulated that the November 1, 1999 edition of the United States Sentencing
Guidelines applied to Gall's offense conduct. The presentence report ("PSR")
assigned Gall responsibility for 10,000 tablets of ecstasy. The parties stipulated that
for the purpose of calculating a Guidelines sentence, Gall would be held accountable
for 2,500 grams of ecstasy, or 10,000 tablets, which under the 1999 Guidelines equals
87.5 kilograms of marijuana. Pursuant to U.S.S.G. § 2D1.1, 87.5 kilograms of
marijuana placed Gall at a base offense level of 24. Because he qualified for the
safety valve pursuant to U.S.S.G. § 5C1.2, Gall's offense level was reduced by two
levels to 22. An additional three-level reduction for acceptance of responsibility
resulted in a total offense level of 19.




                                         -3-
       Gall's criminal history included a conviction for failure to maintain control of
his vehicle and underage alcohol possession in March 1997. As part of his sentence,
Gall was ordered to pay a fine and undergo treatment for alcohol abuse. No criminal
history points were assessed for this conviction pursuant to U.S.S.G. § 4A1.2(c). Gall
was also convicted in December 1997 of improper storage of a firearm on a public
highway. This conviction added one criminal history point pursuant to U.S.S.G. §
4A1.1(c). Finally, in March 2000, Gall was convicted of possession of marijuana for
which he received a deferred judgment; no criminal history points were assigned to
this conviction. With a Category I criminal history, Gall's advisory Guidelines range
was 30 to 37 months' imprisonment.

        At Gall's sentencing hearing, his father, Tom Gall, testified that he had
observed a change in his son's life and that his son had started his own business and
was doing well. He added that contractors rely on his son for expertise in installing
windows. Finally, he commented that his family would be devastated if his son went
to jail.

       Gall's mother, Vicki Gall, testified that she believed her son realizes that he
made a "stupid mistake" and that he has really learned from it. She added that during
the last year, her son has become more mature. She concluded by questioning the
value of incarcerating someone who had already made positive changes in his life.

      Gall's counsel requested a sentence of probation, asserting that Gall was not in
need of rehabilitation because he had already done an admirable job of rehabilitating
himself. His counsel noted letters of support sent to the district court sent by Gall's
friends and family. In addition, his counsel argued that a felony conviction is a severe
consequence that would follow Gall throughout his life. Gall's counsel distinguished
Gall from the codefendants who received prison sentences by noting Gall's
withdrawal from the conspiracy and his assumption of a crime-free lifestyle. Counsel
concluded his remarks by reminding the court that Gall's family, along with two


                                          -4-
contract employees, "work pretty much exclusively for Mr. Gall" and were depending
on Gall.

        The government requested a sentence of 30 months' imprisonment, a sentence
at the low end of the advisory Guidelines range. The government argued this sentence
was appropriate, considering Gall already received a significant benefit by being
sentenced under the 1999 Guidelines. In 1999, the Guidelines stated that 1 gram of
ecstasy equated to 35 grams of marijuana. The current Guidelines equate 1 gram of
ecstasy to 500 grams of marijuana, which is 14 times the conversion quantity that
Gall faced. In addition, Gall's recommended sentence only included drug quantities
for the period of his participation in the conspiracy not foreseeable drug quantities
during the entire conspiracy. Also, Gall benefitted from a two-level safety-valve
reduction. Finally, the government argued that a 30-month sentence was appropriate
because the other coconspirators also received prison sentences.

       Before announcing its sentence, the district court denied a defense request to
depart from the advisory Guidelines range based upon aberrant behavior and
extraordinary acceptance of responsibility. The court concluded that departure
requests for remorse, post-offense rehabilitation, and voluntary cessation of criminal
activity were best considered within the confines of 18 U.S.C. § 3553(a).

       After considering the Guidelines, the district court stated, both at the hearing
and in its subsequent sentencing memorandum, that it was going to impose a sentence
other than that contemplated by the Guidelines and sentenced Gall to 36 months'
probation. In imposing the sentence of probation, the court stated that it had
considered the § 3553(a) factors. Particularly, the court stated that it took into account
"the defendant's voluntary and explicit withdrawal from the conspiracy in September
of 2000; the defendant's exemplary behavior while on bond; the support manifested
by family and friends who have attested to the defendant's character; the lack of
criminal history, especially a complete lack of any violent criminal history; and the
immaturity of the defendant."

                                           -5-
       Regarding the nature and circumstances of the offense under § 3553(a)(1), the
district court noted that Gall had withdrawn from the conspiracy, the offense did not
involve violence or firearms, and the offense level was derived solely on the basis of
drug amounts.

      As to the character of the defendant, the court stated that all of Gall's criminal
conduct, including the present offense, occurred when he was 21 years old or
younger, citing the Supreme Court's analysis in Roper v. Simmons, 543 U.S. 551, 569
(2005), that studies indicate that adolescents are less culpable than adults for their
actions and "a lack of maturity and an underdeveloped sense of responsibility are
found in youth more often than in adults and are more understandable among the
young. These qualitites often result in impetuous and ill-considered actions and
decisions." While acknowledging the decision's limited applicability to those who
commit a death-eligible crime before the age of 18, the district court concluded that
a National Institute of Health Study "confirms there is no bold line demarcating at
what age full maturity is reached." Therefore, the court determined that Gall's age at
the time of the offense should be considered in "discovering the overall
characteristics of the defendant."

       In addition, the court noted Gall's "exemplary" post-offense behavior, including
earning his college degree and owning his own business. The court referred to the
correspondence it had received, which described Gall as "reliable, honest, friendly,
and polite" with "superior work ethic and valuable resources." The district court
stated that it could "only conclude from the defendant's post-offense conduct that he
has, in fact, learned from his experience with the United States criminal justice
system and admirably moved to secure a better future for himself."

      Finally, under § 3553(a)(2)(A), the court considered the need for the sentence
imposed to reflect the seriousness of the offense. The court stated that the best way
to accomplish this goal was to impose a term of probation because "[a]ny term of
imprisonment in this case would be counter effective by depriving society of the

                                          -6-
contributions of the Defendant who, the Court has found, understands the
consequences of his criminal conduct and is doing everything in his power to forge
a new life."

       The district court sentenced Gall to a term of 36 months' probation as a
reflection of "the seriousness of joining a conspiracy to distribute MDMA or
Ecstacy." Recognizing that probation is not recommended when the Guidelines range
falls outside of Zone A, the district court concluded that probation was nevertheless
appropriate because Gall's offense level was based "solely on drug quantity." The
court stated, "While not denigrating the seriousness of the offense conduct in this
case, the Court finds the offense level based solely upon drug quantity does not
adequately reflect the offense conduct."

        The government now appeals, arguing that the sentence is unreasonable in light
of all of the § 3553(a) factors because the district court (1) gave unreasonable weight
to Gall's withdrawal from the conspiracy; (2) improperly relied on studies showing
that adolescents are less culpable for their actions than adults; (3) gave unreasonable
weight to Gall's post-offense rehabilitation and behavior while on pre-trial release;
(4) failed to acknowledge that Gall's lack of criminal history was accounted for in the
Guidelines calculation; (5) incorrectly concluded that a sentence of probation reflects
the seriousness of the offense; (6) did not consider whether a sentence of probation
affords adequate deterrence to future criminal conduct; and (7) did not consider
whether a sentence of probation creates unwarranted sentencing disparities among
defendants with similar records who committed similar crimes.

                                      II. Discussion
       "Under Booker, the sentencing guidelines are no longer a mandatory regime.
Instead, the district court must take the advisory guidelines into account together with
other sentencing factors enumerated in 18 U.S.C. § 3553(a)." United States v.
Claiborne, 439 F.3d 479, 480 (8th Cir. 2006). To determine the proper sentence, "the
district court must first calculate the applicable guidelines sentencing range." Id.

                                          -7-
After calculating the advisory Guidelines range, the district court "may then impose
a sentence outside the range in order to 'tailor the sentence in light of the other
statutory concerns' in § 3553(a)." Id. (quoting United States v. Booker, 543 U.S. 220,
245–46 (2005)).

       In the present case, neither party challenges the district court's determination
of the Guidelines sentencing range; therefore, "we review the resulting sentence for
reasonableness, a standard akin to our traditional review for abuse of discretion." Id.
at 481.

       "We have determined that a sentence imposed within the guidelines range is
presumptively reasonable." United States v. Myers, 439 F.3d 415, 417 (8th Cir. 2006).
"While it does not follow that a sentence outside the guidelines range is
unreasonable," a sentence outside of the Guidelines range "'may be unreasonable if
a sentencing court fails to consider a relevant factor that should have received
significant weight, gives significant weight to an improper factor or irrelevant factor,
or considers only appropriate factors but nevertheless commits a clear error of
judgment by arriving at a sentence that lies outside the limited range of choice
dictated by the facts of the case.'" Id. at 417–18 (quoting United States v. Haack, 403
F.3d 997, 1004 (8th Cir. 2005).

       The district court must clearly explain why it imposed a sentence outside of the
Guidelines range. United States v. Gatewood, 438 F.3d 894, 896 (8th Cir. 2006).
While we do not require "a rote recitation of each § 3553(a) factor," the district court
should explain why it varied from the Guidelines and the extent of the variance. Id.
"'Sentences varying from the guidelines range . . . are reasonable so long as the judge
offers appropriate justification under the factors specified in 18 U.S.C. 3553(a). How
compelling that justification must be is proportional to the extent of the difference
between the advisory range and the sentence imposed.'" Claiborne, 439 F.3d. at 481
(quoting United States v. Johnson, 427 F.3d 423, 426–27 (7th Cir. 2005)). Therefore,
"the farther the district court varies from the presumptively reasonable guidelines

                                          -8-
range, the more compelling the justification based on the § 3553(a) factors must be."
United States v. McMannus, 436 F.3d 871, 874 (8th Cir. 2006).

       Here, the district court imposed a sentence of probation when the bottom of
Gall's advisory Guidelines range was 30 months' incarceration. In essence, this
amounts to a 100% downward variance, as Gall will not serve any prison time. Such
a variance is extraordinary. "An extraordinary reduction must be supported by
extraordinary circumstances." United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir.
2005); see also Claiborne, 439 F.3d at 481 (holding that the district court's imposition
of a 15-month sentence when the Guidelines range was 37 to 46 months'
imprisonment, a 60% downward variance, was unreasonable). We conclude that this
extraordinary variance is not supported by extraordinary justifications.

       First, the district court gave too much weight to Gall's withdrawal from the
conspiracy because the court failed to acknowledge the significant benefit Gall
received from being subject to the 1999 Guidelines. Gall was held responsible for
10,000 tablets of MDMA at a conversion rate of 1 gram of MDMA to 35 grams of
marijuana, resulting in a base offense level of 24. Under the current Guidelines,
however, Gall's base offense level would have been 32 because 1 gram of MDMA
equates to 500 grams of marijuana. In addition, Gall was not held accountable for
quantities of ecstasy distributed by other members of the conspiracy subsequent to his
withdrawal. Under U.S.S.G. § 1B1.3, Gall could have been held responsible for other
members' reasonably foreseeable acts. United States v. Smith, 240 F.3d 732, 737 (8th
Cir. 2001) ("A defendant convicted of conspiracy is properly held accountable for all
reasonably foreseeable acts and omissions of any co-conspirator taken in furtherance
of the conspiracy.").

        Second, the district court gave significant weight to an improper factor when
it relied on general studies showing persons under the age of 18 display a lack of
maturity, which often results in impetuous and ill-considered actions. This general
study, however, does not explain how Gall's specific behavior in the instant case was

                                          -9-
impetuous or ill-considered. Furthermore, Gall sold ecstacy as a 21-year-old adult,
not as an adolescent.

       Third, the district court did not properly weigh the seriousness of Gall's
offense. While the district court observed that Gall's offense level did not adequately
reflect the offense conduct because it was based "solely on drug quantity," the district
court ignored the serious health risks ecstasy poses. Ecstasy causes increased body
temperature, which can lead to liver, kidney, and cardiovascular system failure;
increases in heart rate and blood pressure; and severe anxiety and depression, which
can occur days or weeks after taking ecstasy. National Institute on Drug Abuse,
(2003), at www.nida.nih.gov/infofax/ecstasy.html (last visited March 31, 2006). Gall
sold 10,000 ecstasy pills during the time he participated in the drug conspiracy. The
potential harm posed by this quantity of illegal drugs should not be lightly
discounted.

       Fourth, the record does not show that the district court considered whether a
sentence of probation would result in unwarranted sentencing disparities. See 18
U.S.C. § 3553(a)(6). "Congress has made avoiding unwarranted disparity a legislative
priority." United States v. Lazenby, 439 F.3d 928, 933 (8th Cir. 2006). Therefore, we
find that the district court failed to consider a relevant factor that should have
received significant weight.

      Finally, the district court placed too much emphasis on Gall's post-offense
rehabilitation. Even if Gall's rehabilitation "is dramatic and hopefully permanent," a
sentence of probation for participating as a middleman in a conspiracy distributing
10,000 tablets of ecstasy with a personal profit of $30,000 "'lies outside the limited
range of choice dictated by the facts of the case.'" Id. (quoting Haack, 403 F.3d at
1004).




                                         -10-
                                   III. Conclusion
     Accordingly, the judgment of the district court is reversed and the case is
remanded to the district court for resentencing.
                       ______________________________




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