                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 06-2453
                                     ___________

United States of America,                 *
                                          *
             Appellant,                   *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Northern District of Iowa.
Jason Pepper,                             *
                                          *
             Appellee.                    *
                                     ___________

                              Submitted: March 13, 2007
                                  Filed: May 21, 2007
                                  ___________

Before RILEY, BOWMAN, and ARNOLD, Circuit Judges.
                           ___________

RILEY, Circuit Judge.

       This case returns after a remand to the district court for resentencing. In United
States v. Pepper, 412 F.3d 995, 999 (8th Cir. 2005) (Pepper I), we held the district
court erred by granting a 75% downward departure for substantial assistance and
imposing a sentence of 24 months’ imprisonment, because the district court
erroneously based the extent of the departure on matters unrelated to Jason Pepper’s
(Pepper) assistance. On remand, the district court granted a 40% downward departure
(five offense levels) for substantial assistance, followed by a 59% downward variance
(eight offense levels), and again imposed a sentence of 24 months’ imprisonment.
The government appeals. We reverse.
I.     BACKGROUND
       Pepper pled guilty to conspiracy to distribute more than 500 grams of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846.
Pepper’s total offense level of 30 and criminal history category I produced an advisory
United States Sentencing Guidelines range of 97 to 121 months. Pepper was eligible
for safety-valve relief, thus the statutory mandatory minimum sentence of 120
months’ imprisonment did not apply. See 18 U.S.C. § 3553(f), U.S.S.G.
§§ 2D1.1(b)(6), and 5C1.2. In Pepper’s initial sentencing, the government filed a
motion for substantial assistance, pursuant to U.S.S.G. § 5K1.1, and recommended a
15% downward departure. The district court departed downward 75% and sentenced
Pepper to 24 months’ imprisonment. We reversed, finding the district court erred by
considering factors unrelated to Pepper’s assistance in granting the § 5K1.1 downward
departure motion, and we remanded, concluding “given the pedestrian nature of Mr.
Pepper’s assistance, it is far from certain that the court would have arrived at the same
guidelines sentence had it considered only assistance-related elements when deciding
the extent of the departure.” Pepper I, 412 F.3d at 999.

      On remand, the district court found Pepper’s assistance merited a 40%
downward departure, which reduced the bottom of the advisory sentencing Guidelines
range to 58 months. Then, under 18 U.S.C. § 3553(a), the district court granted a
downward variance of 59%, based on Pepper’s post-sentencing rehabilitation, lack of
“violent” history, and, to a lesser degree, on the need to avoid unwarranted sentencing
disparity among co-defendants. The district court again imposed a sentence of 24
months’ imprisonment. This appeal followed.

II.  DISCUSSION
     A.   Substantial Assistance Departure
     The government argues the district court abused its discretion by granting a
40% downward departure given the pedestrian nature of Pepper’s assistance. We



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review for abuse of discretion the extent of a reduction for substantial assistance.
United States v. Coyle, 429 F.3d 1192, 1193 (8th Cir. 2005).

       At the resentencing hearing, the government described Pepper’s assistance,
which included debriefing with law enforcement immediately after his arrest, a proffer
interview, and testifying before the grand jury against two defendants. The
government acknowledged Pepper was the main witness against one of the two
defendants.

       Although there is no bright line percentage or mathematical formula to
determine when the extent of a substantial assistance departure becomes unreasonable,
see, e.g., United States v. Haack, 403 F.3d 997, 1005 (8th Cir. 2005), some
proportionality must exist between the defendant’s assistance and the extent of the
departure; for example, an extraordinary departure must be supported by extraordinary
circumstances, see, e.g., United States v. Saenz, 428 F.3d 1159, 1162-65 (8th Cir.
2005) (concluding a 68% substantial assistance downward departure (eleven offense
levels) was “excessive and unreasonable under the circumstances”); United States v.
Dalton, 404 F.3d 1029, 1030, 1033-34 (8th Cir. 2005) (concluding there were no
extraordinary circumstances to support the extraordinary 75% downward departure
(thirteen offense levels), aff’d after remand, 478 F.3d 879 (8th Cir. 2007). But see
United States v. Pizano, 403 F.3d 991, 995-97 (8th Cir. 2005) (affirming a 75%
substantial assistance downward departure (twelve offense levels), where the
defendant’s assistance was extraordinary). We believe reasonable proportionality
exists here between Pepper’s assistance and the downward departure. The district
court properly identified only assistance-related factors and noted, although Pepper’s
assistance was “pedestrian or average,” it was timely, truthful, honest, helpful, and
important. The district court considered the § 5K1.1 factors, including the
government’s recommendation, but felt Pepper’s assistance was worth more than the
recommended 15% downward departure. The district court found, under Eighth
Circuit precedent, Pepper’s assistance merited “something less than a 50 percent

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reduction” and determined a 40% reduction was warranted. Although we believe it
is a close call, we cannot say the district court abused its discretion by the extent of
the § 5K1.1 departure.

       B.      Downward Variance
       The government next argues the district court abused its discretion in granting
a 59% variance. “We review a district court’s interpretation and application of the
guidelines de novo, its factual findings for clear error, and any decision to depart from
the appropriate guidelines range for abuse of discretion.” United States v. Judon, 472
F.3d 575, 583 (8th Cir. 2007). A district court’s decision to vary from the advisory
sentencing Guidelines range is reviewed for reasonableness, which is a similar
standard to the abuse of discretion standard. Id. “A sentencing court abuses its
discretion if its fails to consider a relevant factor that should have received significant
weight, gives significant weight to an improper or irrelevant factor, or considers only
the appropriate factors but commits a clear error of judgment in weighing those
factors.” United States v. Long Soldier, 431 F.3d 1120, 1123 (8th Cir. 2005).

       The district court’s § 5K1.1 downward departure brought the bottom of the
Guidelines range to 58 months. Thereafter, the district court stated, “I am going to do
a variance down to 24 months” and noted the significance of varying from 58 months
to 24 months.

       In considering evidence in the record to support the variance, the district court
first mentioned Pepper had “no history of violence.” The district court tried to
distinguish Pepper’s lack of violent history from Pepper’s lack of a criminal history,
stating “you could have a history of violence in your record . . . and have a criminal
history or not have a criminal history.” This vague distinction is unpersuasive. The
district court did not substantiate what it meant by “no history of violence.” Indeed,
if Pepper had a violent criminal history, he would have been ineligible for safety-
valve relief, subject to the 120-month statutory mandatory minimum, and the

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possibility of an enhancement or an upward departure. To the extent the district court
considered the absence of violence in Pepper’s life generally, we have previously held
“[t]he absence of grounds that justify further punishment is not a ground for a
downward variance.” United States v. Feemster, __ F.3d __, __, 2007 WL 1201885,
at *5 (8th Cir. Apr. 25, 2007). The district court’s failure to distinguish Pepper’s lack
of violent history leads us to the inescapable conclusion the district court
impermissibly double counted by considering as a § 3553(a) factor Pepper’s already
accounted for lack of criminal history. See United States v. Claiborne, 439 F.3d 479,
481 (8th Cir.) (concluding an extraordinary downward variance of 60% (seven offense
levels), was not supported by defendant’s lack of criminal history, which already had
been accounted for by defendant’s safety-valve relief and criminal history category
I), cert. granted, 127 S. Ct. 551 (2006); see also United States v. Gonzalez-Alvarado,
477 F.3d 648, 651 (8th Cir. 2007) (noting drastic reductions are discouraged “absent
extraordinary circumstances, especially when the sentencing guidelines already
significantly reflect the mitigating factors”).

      The district court next considered unwarranted sentencing disparity among co-
conspirators:1 Alexander Blankenship (Blankenship) sentenced to 72 months’
imprisonment, Felipe Sandoval (Sandoval) sentenced to 35 months’ imprisonment,
and Jose Martin Barragan-Torres (Barragan-Torres) sentenced to 90 months’
imprisonment. To the extent unwarranted sentencing disparities among co-
conspirators and co-defendants are a proper consideration under 18 U.S.C.
§ 3553(a)(6),2 see United States v. Lazenby, 439 F.3d 928, 934 (8th Cir. 2006) (citing

      1
        The district court indicated its consideration of unwarranted sentencing
disparity among the co-defendants was not a primary factor in granting a downward
variance.
      2
       We note “§ 3553(a)(6) may more appropriately apply to disparities on a
national level and not within the same conspiracy,” but we continue to follow our own
precedent. United States v. Kane, 470 F.3d 1277, 1281 (8th Cir. 2006) (citing United
States v. Parker, 462 F.3d 273, 277 (3d Cir.) (concluding “Congress’s primary goal

                                          -5-
18 U.S.C. § 3553(a)(6)), it does not justify a downward variance in this case. The
district court never mentioned the disparity to be avoided, the relative culpability of
the co-defendants, the extent of any co-defendant’s assistance, the co-defendants’
reductions, or whether Pepper was similarly situated to the co-defendants.
Furthermore, the district court did not discuss co-defendant Barragan-Torres, who was
sentenced to 90 months’ imprisonment, which is 66 months or 73% greater than
Pepper’s sentence. The district court did not adequately explain and support its
rationale for sentencing Pepper to 24 months’ imprisonment in contrast to Pepper’s
co-defendants, who received 72, 35, and 90 months’ imprisonment.

      Finally, the district court questioned Pepper regarding his post-sentence
conduct. Pepper testified about his community college attendance, work record,
sobriety, and compliance with the other conditions of his supervised release. In
granting the downward variance the district court acknowledged, “I don’t know
whether or not it’s appropriate to consider the release–the year he’s been out now,
almost a year, how well he’s done.” Nonetheless, the district court concluded, “I’m
not going to be disingenuous and say that I haven’t considered [Pepper]’s post-release
conduct because I have considered it. Exactly how much weight I’m giving it, I don’t
know exactly.”

      Our court recently considered the relevance of post-sentence rehabilitation, see
United States v. Jenners, 473 F.3d 894, 899 (8th Cir. 2007) (citing United States v.
Sims, 174 F.3d 911, 913 (8th Cir.1999)), and held “evidence of [defendant]’s post-
sentencing 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.” The practice of allowing consideration of post-sentencing
rehabilitation upon resentencing would create unwarranted sentencing disparities and

in enacting § 3553(a)(6) was to promote national uniformity in sentencing rather than
uniformity among co-defendants in the same case”), cert. denied, 127 S. Ct. 462
(2006)).

                                         -6-
inject blatant inequities into the sentencing process. Pepper’s post-sentencing
rehabilitation was an impermissible factor to consider in granting a downward
variance.

      The lack of clarity regarding the extent to which the district court relied on any
one factor notwithstanding, we conclude the district court abused its discretion in
granting the downward variance. The district court failed to balance the other factors
in § 3553(a), such as the need to impose a sentence reflecting the seriousness of
Pepper’s offense, which involved between 1,500 and 5,000 grams of
methamphetamine mixture and ten to fifteen people, or how, in this case, a sentence
of 24 months would promote respect for the law. The district court impermissibly
considered Pepper’s post-sentence rehabilitation, and further erred by considering
Pepper’s lack of violent history, which history had already been accounted for in the
sentencing Guidelines calculation, and by considering sentencing disparity among
Pepper’s co-defendants without adequate foundation and explanation.

III.   CONCLUSION
       For the reasons stated, we reverse and remand this case for resentencing
consistent with this opinion. The district court expressed a reluctance to resentence
Pepper again should this case be remanded. Thus, we remand Pepper’s case for re-
sentencing by a different judge, pursuant to our authority under 28 U.S.C. § 2106. See
United States v. Rogers, 448 F.3d 1033, 1035 (8th Cir. 2006) (per curiam) (citing
Liteky v. United States, 510 U.S. 540, 554 (1994) (discussing the authority to assign
a case to a different judge on remand comes from “the appellate courts’ statutory
power to ‘require such further proceedings to be had as may be just under the
circumstances’” (quoting 28 U.S.C. § 2106))). The chief judge of the district court
shall reassign this case, in the ordinary course, for resentencing by another judge.
                        ______________________________




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