                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 02-2559
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellant,
                                 v.

DENISE GRASSER,
                                              Defendant-Appellee.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
           No. 01 CR 709—Wayne R. Andersen, Judge.
                          ____________
  ARGUED OCTOBER 31, 2002—DECIDED DECEMBER 6, 2002
                    ____________


 Before RIPPLE, MANION, and EVANS, Circuit Judges.
  EVANS, Circuit Judge. On this appeal, the government
challenges a significant downward departure—it moved
the defendant from a sentencing range of 18 to 24 months
to a range where the actual sentence imposed was only
4 months, and that was under “community confinement”
with work release. The departure was awarded for what
the court termed “exceptional acceptance of responsibil-
ity.” The apparent basis for the departure was the defen-
dant’s partial payment of restitution before she was sen-
tenced. The less-than-apparent basis for the departure
was the defendant’s family situation and, despite the fact
that she was 35 years old, her “horrible sexual abuse as
a child.”
2                                              No. 02-2559

  Denise Grasser was the assistant branch manager of the
Success National Bank. In April of last year, the bank
arranged to have several safe deposit boxes “drilled open,”
apparently a fairly common practice when customers fail
to pay box maintenance fees. As a standard operating pro-
cedure, the bank sends a notice to a customer which says
his box will be opened if he fails to pay delinquent fees
or fails to contact the bank within a specified period of
time. When the customer fails to respond, the box is drilled
open and its contents are inventoried and placed in a sep-
arate, secure vault. Or at least that’s supposed to be the
SOP.
  Things didn’t go according to Hoyle in April of 2001
when Grasser took jewelry from either one or two boxes
and hid it under her desk. Contrary to policy, the jewelry
was not inventoried, and subsequently, when its owner
came to the bank (he was on vacation and not able to
get there until after the box was opened), the cupboard
was bare. To avoid detection while this was occurring,
Grasser put the jewelry in a brown paper bag and hid it
in the employee break room’s coffee cabinet.
  While police were investigating the disappearance of the
jewelry, Grasser lied about her involvement in the theft.
But then, bank officers uncovered a major discrepancy
in one of Grasser’s customer’s account. The account, owned
by an Alzheimer’s patient confined to a nursing home, was
$87,991 short. After this discovery, apparently sensing
that it was not in the cards to keep this game going,
Grasser confessed to looting the account over 3 years and
pilfering the jewelry. She admitted taking $87,991, and
she pointed the bank officials to the coffee cabinet, where
the purloined jewelry was recovered.
  Grasser’s shenanigans led to trouble on two fronts: First,
the bank filed a civil suit against her seeking the return
of the money taken from the Alzheimer’s patient’s account;
No. 02-2559                                                 3

a few months later a pair of federal criminal charges—
bank theft, in violation of 18 U.S.C. § 2113(b), and bank
fraud, in violation of 18 U.S.C. § 1344—was filed against
her. The civil suit was resolved by a settlement agreement
wherein Grasser agreed to repay the embezzled money
with interest. As part of an effort to reach that end, Grasser
assigned to the bank her interest in a parcel of real estate
she owned in Twin Lakes, Wisconsin, with a value ap-
parently of something in the neighborhood of $33,000. The
balance was to be repaid at a rate of $1,000 per month.
On the day the civil suit was settled, 5 months after the
criminal proceedings commenced, Grasser entered guilty
pleas to the theft and fraud charges.
  Fifteen years ago, judges could exercise considerable
sentencing discretion in cases like this. Grasser, of course,
did some terrible things, but she is not an altogether un-
sympathetic defendant. So, in years past, punishments in
cases like this could vary greatly, depending upon the per-
ception, and even whim, of the sentencing judge. But that
all changed in 1987 when the federal sentencing guide-
lines took effect. And as we know today, the guidelines
significantly cabined the sentencing discretion of trial
judges. In this case, we can understand the inclination of
the experienced district judge to give Ms. Grasser a break,
but the departure he ordered cannot be sanctioned.
  We review departures from the guidelines for an abuse
of discretion. Koon v. United States, 518 U.S. 81, 98 (1996);
United States v. Purchess, 107 F.3d 1261, 1270 (7th Cir.
1997). In this case, because the facts are undisputed, the
trial judge’s conclusions, including interpretations of the
guidelines, are reviewed de novo. Koon, 518 U.S. at 100;
United States v. Mojica, 185 F.3d 780, 791 (7th Cir. 1999).
  When reviewing a district court’s decision to depart
from the applicable guideline range, we consider several
factors, two of which are whether the grounds for the
4                                               No. 02-2559

departure are appropriate and whether the extent of the
departure is reasonable. See United States v. Simmons, 215
F.3d 737, 742 (7th Cir. 2000). The departure here was
inappropriate on the first point and, had it not been, the
degree of departure would have to be reconsidered.
  As the guidelines say (§5K2.0) and we have repeated
many times, “[a] district court is constrained to impose
a sentence within the applicable guideline range unless
the court ‘finds that there exists an aggravating or miti-
gating circumstance of a kind, or to a degree not ade-
quately taken into consideration by the Sentencing Com-
mission in formulating the Guidelines that should result
in a sentence different from that described.’ ” United States
v. Hendrickson, 22 F.3d 170, 174 (7th Cir. 1994) (citing
18 U.S.C. § 3553(b); U.S.S.G. §5K2.0; United States v.
Frazier, 979 F.2d 1227, 1229 (7th Cir. 1992)). Thus, a de-
parture is justified only if the pertinent sentencing fac-
tor (1) is “of a kind, or [(2) is present in the case] to a
degree, not adequately taken into consideration by the
Sentencing Commission . . . .” 18 U.S.C. § 3553(b).
  The pertinent sentencing factor here—acceptance of re-
sponsibility—is obviously not “a mitigating circumstance
of a kind . . . not adequately taken into consideration by
the Sentencing Commission . . . .” Id. In U.S.S.G. §3E1.1,
the Commission recognized that acceptance of responsibility
is a mitigating circumstance and provided for either a 2- or
3-level reduction when the factor is present. Grasser got
a 3-point reduction for timely acceptance of responsibility,
and there is no fuss about that. But could she get 6 more
points? We don’t think so.
  The only circumstance the district court cited in support
of the departure for “extraordinary acceptance of respon-
sibility” was Grasser’s payment of restitution, which came
to around $37,000 when she was sentenced. The pivotal
question, then, is whether Grasser’s partial payment of
No. 02-2559                                                 5

restitution made her acceptance of responsibility present “to
a degree” not considered by the Commission. The answer
to that question must be “no.”
  Application Note 1(c) to guideline §3E1.1 lists “voluntary
payment of restitution prior to adjudication of guilt” as an
independent reason for a 2-level acceptance of responsibil-
ity reduction. (Emphasis added.) Consistent with the ap-
plication note, we have held that “[v]oluntary payment
of restitution prior to adjudication of guilt can be a basis
for finding acceptance of responsibility which would war-
rant a two level reduction in a defendant’s offense level.”
Hendrickson, 22 F.3d at 176 (citing §3E1.1 Application
Note 1(c)). In Hendrickson, however, we explicitly held that
“[n]either the payment of restitution nor the payment of
a statutorily mandated forfeiture can, in and of itself, be
a ground for departing from the Guidelines.” Id. See also
United States v. Seacott, 15 F.3d 1380, 1388 (7th Cir. 1994)
(“a sentencing court could not base a downward depar-
ture on the fact that a defendant made restitution to his
victim prior to the adjudication of his guilt”) (citing United
States v. Carey, 895 F.2d 318, 323 (7th Cir. 1990)).
   In Seacott, we explained the reasoning behind our re-
luctance to allow departures based on payments of res-
titution, stating:
    Allowing sentencing courts to depart downward based
    on a defendant’s ability to make restitution would
    thwart the intent of the guidelines to punish financial
    crimes through terms of imprisonment by allowing
    those who could pay to escape prison. It would also
    create an unconstitutional system where the rich could
    in effect buy their way out of prison sentences.
Seacott, 15 F.3d at 1389.
  Nevertheless, we have held open the possibility that a
sentencing court might depart from the guidelines “when
6                                               No. 02-2559

the circumstances surrounding the payment of restitu-
tion demonstrate a degree of acceptance of responsibility
that is truly extraordinary and substantially in excess
of that which is ordinarily present.” Hendrickson, 22 F.3d
at 176 (citing United States v. Bean, 18 F.3d 1367 (7th Cir.
1994)).
   In Bean, we considered whether a defendant’s repay-
ment of a fraudulent $75,000 bank loan prior to trial
could form the basis of an extraordinary acceptance of
responsibility departure. Bean, 18 F.3d at 1367. We con-
cluded that while the defendant might be entitled to a
2-level acceptance of responsibility reduction for paying
full restitution prior to the adjudication of guilt, nothing
about the defendant’s conduct was “so exceptional that
it justified triple the reduction provided by §3E1.1(a).” Id.
at 1369. We observed that “all [defendant] did was to pay
off the principal of the involuntary loan before trial. This
is precisely the conduct described by Application Note 1(c).”
Id. (emphasis in original). Had the defendant stolen mon-
ey from the bank and repaid the bank in full the next
day, before the crime had been discovered, the Bean court
suggested that these circumstances might justify a de-
parture beyond ordinary acceptance of responsibility. Id.
Without more, however, a departure for a defendant’s pay-
ment of full restitution “only five days before trial” was
“clearly erroneous.” Id. See United States v. Carey, 895 F.2d
318, 323-24 (7th Cir. 1990) (departure set aside when
91 percent of restitution paid prior to conviction).
  Our case presents an even less sympathetic factual sce-
nario than in Bean. On the day of her sentencing, Grasser
had pledged, in settling the bank’s civil suit, approximately
$33,000 and paid roughly $4,000 towards an $87,991 plus
bill, just 42 percent of the amount she owed, not count-
ing interest. There was nothing extraordinary about this
or about the circumstances under which it was paid.
No. 02-2559                                               7

  At least inferentially, two other factors may have en-
tered into the judge’s decision to depart. He explained that
in addition to “extraordinary” acceptance of responsibil-
ity, the departure was “buttressed by family circumstances
and defendant’s psychological condition stemming from
horrible sexual abuse as a child.” But the judge never con-
cluded that either of these conditions were “extraordinary,”
and for good reason—they weren’t. A prison sentence is
always disruptive, and nothing here comes close to sug-
gesting that Ms. Grasser must receive a discount be-
cause her two teenage children will have to be attended
to by her ex-husband, a firefighter/paramedic who lives
in Wisconsin and at the time of the sentencing had joint
custody of the children.
  Finally, we have considered Ms. Grasser’s “psychological”
condition (like “family circumstances” a discouraged ba-
sis for departure, see §5H1.6; §5H1.3) as disclosed by the
record and conclude that it also does not provide a basis
for a departure. While the history of abuse she suffered
as a child is indeed unfortunate, she was 35 years old
when she committed her crimes, 22 years removed from
when she was victimized.
                                REVERSED and REMANDED.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—12-6-02
