                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,               
                 Plaintiff-Appellant,
                 v.                             No. 00-4247
ERNEST F. COBLE, JR.,
               Defendant-Appellee.
                                        
            Appeal from the United States District Court
       for the Middle District of North Carolina, at Durham.
               Frank W. Bullock, Jr., District Judge.
                            (CR-99-137)

                      Argued: January 26, 2001

                      Decided: April 27, 2001

     Before WILLIAMS and TRAXLER, Circuit Judges, and
     Gerald Bruce LEE, United States District Judge for the
       Eastern District of Virginia, sitting by designation.



Reversed and remanded by unpublished per curiam opinion. Judge
Lee wrote a dissenting opinion.


                            COUNSEL

ARGUED: Harry L. Hobgood, Assistant United States Attorney,
Greensboro, North Carolina, for Appellant. James B. Craven, III,
Durham, North Carolina, for Appellee. ON BRIEF: Walter B. Hol-
ton, Jr., United States Attorney, Greensboro, North Carolina, for
Appellant.
2                       UNITED STATES v. COBLE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Ernest Coble was convicted in the United States District Court for
the Middle District of North Carolina of attempting to obstruct and
impede the due administration of the tax laws, pursuant to 26
U.S.C.A. § 7212(a), for repeatedly seeking to rely upon an invalid
"comptroller warrant" to discharge his tax liability and to receive a
substantial tax refund from the Internal Revenue Service. At sentenc-
ing, the district court departed two levels downward, finding that
Coble’s conduct constituted a single act of aberrant behavior and that
a combination of several discouraged factors, such as Coble’s age and
military service, justified departure. The Government appeals the dis-
trict court’s downward departure. We conclude that Coble’s conduct
did not constitute a single act of aberrant behavior and that the factors
cited by the district court, either individually or in combination, are
not present to an extraordinary degree so as to warrant departure.
Accordingly, we reverse the district court’s downward departure and
remand for resentencing.

                                   I.

   Coble, who is retired and in his 70s, is a former commercial airline
pilot who served honorably in the military in two wars. Coble has had
various problems with the IRS. On December 11, 1995, the IRS sent
Coble a deficiency notice in the amount of $264,904.67. On Decem-
ber 20, 1995, Coble sent a letter to the IRS by certified mail contain-
ing a "comptroller warrant" for $529,808.00, or nearly twice the tax
liability stated in a December 11, 1995 deficiency notice. Coble
demanded that the IRS refund the difference and threatened to bill the
IRS interest if it failed promptly to repay him. The comptroller war-
rant, as it turned out, was an invalid document sent to Coble by Leroy
Schweitzer, head of the Freemen organization in Montana. The war-
rant was made payable jointly to Coble and the IRS.1 After the IRS
    1
   Schweitzer had sent these warrants, which have no financial value, to
hundreds of people who had tax problems.
                        UNITED STATES v. COBLE                           3
credited the warrant and the Federal Reserve rejected the warrant as
worthless, the IRS removed the credit from Coble’s account. (J.A. at
33, Appellant’s Br. at 4.) Had the Federal Reserve honored the war-
rant, Coble would have received a $264,921.10 refund.

   On February 1, 1996, IRS agent Bobby Shanks visited Coble to
interview him about the warrant. Shanks informed Coble that the war-
rant was worthless, but Coble insisted that the warrant was valid and
that he continued to expect the IRS to refund his money. On February
13, 1996, the IRS received a follow-up letter from Coble dated Febru-
ary 1, 1996, apparently written immediately after Shanks’s visit. The
letter referred to the IRS’s refusal to honor the warrant and it
demanded that the IRS accept the warrant as payment for Coble’s tax
liability. On February 20, 1996, the IRS received a second follow-up
letter, dated February 14, 1996 and signed by Coble, again alleging
that Coble’s tax liability had been discharged as a result of the war-
rant. Attached to the letter was a copy of a previous deficiency notice,
on which Coble had stamped "[r]efusal for cause without dishonor."
(J.A. at 39.)

  On September 23, 1999, Coble was convicted in the United States
District Court for the Middle District of North Carolina of violating
26 U.S.C. § 7212(a) by attempting to obstruct and impede the due
administration of the tax laws.2 The Presentence Report (PSR)
   2
     Section 7212(a), which applies to "[a]ttempts to interfere with admin-
istration of internal revenue laws," provides,
      (a) Corrupt or forcible interference. — Whoever corruptly or by
      force or threats of force (including any threatening letter or com-
      munication) endeavors to intimidate or impede any officer or
      employee of the United States acting in an official capacity
      under this title, or in any other way corruptly or by force or
      threats of force (including any threatening letter or communica-
      tion) obstructs or impedes, or endeavors to obstruct or impede,
      the due administration of this title, shall, upon conviction
      thereof, be fined not more than $5,000, or imprisoned not more
      than 3 years, or both, except that if the offense is committed only
      by threats of force, the person convicted thereof shall be fined
      not more than $3,000, or imprisoned not more than 1 year, or
      both. The term "threats of force", as used in this subsection,
      means threats of bodily harm to the officer or employee of the
      United States or to a member of his family.
26 U.S.C.A. § 7212(a) (West 1989).
4                       UNITED STATES v. COBLE
assigned Coble a total offense level of fourteen, which included a
base offense level of twelve and a two-point enhancement for obstruc-
tion of justice based upon his inaccurate testimony concerning the
date of Shanks’s visit.3 The district court declined to impose the two-
point enhancement for obstruction of justice, finding that the inaccu-
racy was immaterial. (J.A. at 234.) The district court also departed
downward by two levels, sentencing Coble to three years probation
and six months of home confinement. The Government timely noted
its appeal of Coble’s sentence.

                                   II.

   The only issue on appeal is whether the district court abused its dis-
cretion in departing downward. The district court relied upon two
bases to depart downward: (1) that Coble’s "mailing of the check in
December 1995 was a single act of aberrant behavior, inconsistent
with the defendant’s conduct throughout his life, except in his ongo-
ing battle with the [IRS]," (J.A. at 234) and (2) that a combination of
several discouraged factors, such as age, employment record, commu-
nity ties, and record of service, were present "to such an extraordinary
degree that it is an atypical case to place the defendant in a position
that he would be subject to an active sentence under the circum-
stances here."4 (J.A. at 234-35.) We review the district court’s deci-
sion to depart under the unitary abuse-of-discretion standard. Koon v.
United States, 518 U.S. 81, 100 (1996). Legal errors and clearly erro-
neous factual findings constitute abuses of discretion. See United
States v. DeBeir, 186 F.3d 561, 566-67 (4th Cir. 1999).

    3
     At trial, Coble testified that Shanks visited him on March 3, 1996,
rather than February 1, 1996.
   4
     Although the Government argues that the district court erroneously
departed on the basis of individual discouraged factors, such as age, the
record shows that the district court rejected these factors as individual
bases for departure and instead relied upon these factors only in combi-
nation. (See J.A. at 224-35 (explaining why departure was inappropriate
based upon individual factors).)
                         UNITED STATES v. COBLE                            5
                 A. Single Act of Aberrant Behavior

   The Sentencing Commission has noted that it "has not dealt with
the single acts of aberrant behavior that still may justify probation at
higher offense levels through departures." United States Sentencing
Commission, Guidelines Manual, Ch. 1, Pt. A, 4(d), p.s. (1998).
Courts interpreting this policy statement have concluded that single
acts of aberrant behavior may justify sentences below the guideline
ranges. In United States v. Glick, 946 F.2d 335 (4th Cir. 1991), we
set forth the standards for determining whether conduct constitutes a
single act of aberrant behavior. In reversing the district court’s depar-
ture, we stated that

      Aberrant behavior, therefore, means something more than
      merely a first offense. A single act of aberrant behavior sug-
      gests a spontaneous and seemingly thoughtless act rather
      than one which was the result of substantial planning
      because an act which occurs suddenly and is not the result
      of a continued reflective process is one for which the defen-
      dant may be arguably less accountable. Because of the
      extensive planning, number of actions involved, and length
      of time over which Glick planned and perpetrated his
      offense, his actions do not constitute a single act of aberrant
      behavior. The district court erred in so concluding.

Id. at 338 (internal quotation marks and citation omitted and emphasis
added).5 Applying this standard to the present case, we cannot agree
  5
    The Third, Fifth, Seventh, Eighth, Eleventh, and D.C. Circuits agree
with our approach in United States v. Glick, 946 F.2d 335 (4th Cir.
1991). See United States v. Winters, 105 F.3d 200, 206-07 (5th Cir.
1997) (stating that aberrant behavior "requires more than an act which is
merely a first offense or out of character for the defendant" (internal quo-
tation marks omitted)); United States v. Marcello, 13 F.3d 752, 761 (3d
Cir. 1994) ("Aberrant behavior must involve a lack of planning; it must
be a single act that is spontaneous and thoughtless. . . ."). The First, Sec-
ond, Ninth, and Tenth Circuits disagree, concluding that a "totality of the
circumstances" approach is more appropriate, under which a wide variety
of extenuating circumstances are considered. See United States v. Grand-
maison, 77 F.3d 555, 563 (1st Cir. 1996) (holding that "determinations
6                       UNITED STATES v. COBLE
that Coble’s conduct constituted a single act of aberrant behavior that
warrants a departure. The record reveals that Coble’s conduct was not
"a spontaneous and seemingly thoughtless act" but rather was "the
result of substantial planning" and was "the result of a continued
reflective process" rather than an impulsive act for which a defendant
may arguably be less accountable. The act of sending the warrant
reflects substantial planning and a lack of spontaneity on Coble’s part
because, in sending the warrant, Coble took the warrant, calculated
his "refund," wrote a letter to the IRS to accompany the warrant, and
then sent the warrant and letter by certified mail. Coble then sent
additional correspondence dated February 1, 1996 (received by the
IRS on February 13, 1996), and February 14, 1996 (received by the
IRS on February 20, 1996), demanding that the Government honor his
warrant notwithstanding the fact that Agent Shanks had already
informed Coble on February 1, 1996 that the warrant had been dishon-
ored.6 Coble’s acts of sending the letters, two months after sending
the warrant and within days after Shank’s visit, undermines the argu-
ment that his initial act of sending the warrant was the product of a
thoughtless, aberrant moment based upon a misunderstanding of the
warrant’s validity, and demonstrates that additional time and reflec-
tion would not have deterred Coble from seeking to use the warrant
to discharge his tax liability and obtain an improperly issued "refund."

about whether an offense constitutes a single act of aberrant behavior
should be made by reviewing the totality of the circumstances," and that
"spontaneity and thoughtlessness may also be among the factors consid-
ered, though they are not prerequisites for departure"); United States v.
Takai, 941 F.2d 738, 743 (9th Cir. 1991) (affirming district court’s deci-
sion to depart downward after finding that the defendants who pled
guilty to bribery of and conspiracy to bribe an Immigration and Natural-
ization Service official, inter alia, received no pecuniary gain, had no
criminal record, and had been influenced by a government agent). In
Glick, we explicitly rejected the Ninth Circuit’s view "that a series of
actions calculated to further criminal misconduct can be classified as
aberrant behavior." See Glick, 946 F.2d at 338 n.* (rejecting Takai).
   6
     Although the letter dated February 1, 1996 apparently was sent the
same day as Shank’s visit, that letter referenced the fact that the warrant
was dishonored. Thus, Coble presumably sent that letter after Shank’s
visit.
                        UNITED STATES v. COBLE                          7
We therefore reject this basis for the district court’s downward depar-
ture.

              B. Combination of Discouraged Factors

   The district court also relied upon a combination of discouraged
factors to justify its downward departure. In particular, the district
court identified physical condition or age, mental capacity, employ-
ment record, lack of criminal record for over 70 years, community
ties and service to his country, single act of aberrant behavior,7 and
emotional toll arising from his battle with the IRS as factors that com-
bined to warrant a downward departure. The district court conceded
that none of these factors, considered singularly, warranted departure,
but it concluded that these circumstances, in combination, were pres-
ent "to such an extraordinary degree" that departure was appropriate.
(J.A. at 234-35.)

  The commentary to U.S.S.G. § 5K2.0 provides that

      The Commission does not foreclose the possibility of an
      extraordinary case that, because of a combination of such
      characteristics or circumstances, differs significantly from
      the "heartland" cases covered by the guidelines in a way that
      is important to the statutory purposes of sentencing, even
      though none of the characteristics or circumstances individ-
      ually distinguishes the case. However, the Commission
      believes that such cases will be extremely rare.

U.S.S.G. § 5K2.0, comment. Thus, under some circumstances, the
district court is permitted to find that a combination of circumstances
creates an extraordinary case sufficient to warrant a downward depar-
ture. See DeBeir, 186 F.3d at 573 ("[T]he Guidelines clearly contem-
plate that even if none of the factors at issue taken individually
warrants a departure, the cumulative effect of all of the circumstances
of the case may, in some instances, bring it outside the heartland.").
  7
   As discussed above, we have already concluded that the district court
misapplied the "single act of aberrant behavior" factor. We fail to see
how the addition of a misapplied factor to the other factors adds anything
to the equation.
8                       UNITED STATES v. COBLE
    In Koon v. United States, 518 U.S. 81 (1996), the Supreme Court
set forth a multi-step analysis that courts must undertake in determin-
ing whether a departure is appropriate. See id. at 95-96. Under the
Koon framework, the district court must impose a sentence within the
guideline range unless it determines that individual facts present in
the case take the case outside the "heartland" of typical cases
embodied in the conduct covered by the applicable guideline. See id.
at 92-95. Before departing, the sentencing court should determine
whether the factor on which it is considering a departure has been for-
bidden, encouraged, discouraged, or unmentioned as a possible basis
for departure by the Sentencing Commission. See id. at 95-96. Forbid-
den factors may never be grounds for departure.8 If the factor being
considered is a discouraged factor,9 it may support a departure only
if the court finds that it is present to such an extraordinary degree that
it takes the case outside the heartland of ordinary cases encompassed
by the guidelines. Id. Similarly, if a factor is encouraged but the appli-
cable guideline takes it into account, then it may justify a departure
only if it is present to an exceptional degree or in some other way
makes the case different from the ordinary case where the factor is
present. Finally, as noted above, under the commentary to § 5K2.0,
in an extraordinary case, a combination of factors which are "not ordi-
narily relevant" to a departure decision may cause the case to "dif-
fer[ ] significantly from the ‘heartland’ cases . . . in a way that is
important to the statutory purposes of sentencing, even though none
of the characteristics or circumstances individually distinguishes the
case." U.S.S.G. § 5K2.0, comment. A departure would be possible in
such a case, but such a case would be "extremely rare." United States
v. Rybicki, 96 F.3d 754, 758 (4th Cir. 1996).

  Applying this framework to the present case, we first must deter-
mine whether the factors relied upon by the district court — physical
    8
     Examples of forbidden factors include race, sex, national origin,
creed, religion, socio-economic status, lack of guidance during youth,
drug or alcohol dependence, and economic hardship. See United States
v. Rybicki, 96 F.3d 754, 758 (4th Cir. 1996).
   9
     Examples of discouraged factors include family ties and responsibili-
ties, education and vocational skills, and military, civic, charitable, or
public service. See United States v. Rybicki, 96 F.3d 754, 758 (4th Cir.
1996).
                        UNITED STATES v. COBLE                           9
condition or age, employment record, lack of criminal record for over
70 years, community ties and service to his country, and emotional
toll arising from his battle with the IRS — are discouraged, encour-
aged, or forbidden factors. Four of the factors — military service and
public service; employment history; family ties and community ties;
and emotional toll arising from his battle with the IRS — are discour-
aged factors. See U.S.S.G. § 5H1.1, p.s. (age);10 § 5H1.11, p.s. (mili-
tary service and public service); § 5H1.5 (employment record);
§ 5H1.6, p.s. (family ties and community ties).11 Coble’s clean crimi-
nal record for over 70 years is essentially the same as being a first
time offender, which is a factor that is already considered by the
guidelines. See United States v. Sheffer, 896 F.2d 842, 845 (4th Cir.
1990) ("In considering the criminal history of the defendant, the Sen-
tencing Guidelines do take into account a defendant’s status as a first-
time offender."); cf. Koon, 518 U.S. at 111 ("We further agree with
the Court of Appeals that the low likelihood of petitioners’ recidivism
was not an appropriate basis for departure. Petitioners were first-time
offenders and so were classified in Criminal History Category I.").
Thus, these factors are sufficient to support departure only if they are
present to an extraordinary degree so as to take the case outside the
heartland of ordinary cases encompassed by the guidelines.

   Nothing in the record indicates that any of these factors, individu-
ally or in combination, are present to an extraordinary degree so as
to warrant departure. The district court, in finding that the factors in
combination presented an atypical case, did not articulate how
Coble’s situation was unusual, except to state that
  10
      The policy statement provides that "[a]ge may be a reason to impose
a sentence below the applicable guideline range when the defendant is
elderly and infirm and where a form of punishment such as home con-
finement might be equally efficient as and less costly then incarceration."
U.S.S.G. § 5H1.1, p.s.
   11
      To the extent that the district court relied upon the duress arising
from the economic hardship imposed by the IRS liens, that is a forbidden
factor. See U.S.S.G. § 5K2.12 (coercion and duress) (stating that "[t]he
Commission considered the relevance of economic hardship and deter-
mined that personal financial difficulties and economic pressures upon a
trade or business do not warrant a decrease in sentence").
10                       UNITED STATES v. COBLE
       I don’t think that there has been a federal court sentencing
       anyone with a fifteen to twenty-one month initial guideline
       for obstruction of the [IRS] that is 75 years old, with no
       criminal record, a combat pilot in two wars, a 747 captain
       and who has attempted to use the warrant to satisfy a lien
       against his property from the IRS, which even though argu-
       ably valid, he nevertheless believed to be invalid and
       improper, and I think you do sincerely believe that, even
       though you may well be seriously misguided in this case.

(J.A. at 237.)

   Of the factors that the district court combined to justify departure,
the district court explicitly refused to find that Coble was feeble and
infirm or that he had diminished capacity (J.A. at 225 ("I think it
would be less than honest for the Court to do something about being
aged and infirmed in this case, as well as any diminished capacity
type argument on the grounds at this time.").) As to the emotional toll
arising from his battle with the IRS, that could hardly be deemed
unusual because any defendant in a lengthy dispute with the IRS
would presumably be subject to a similar emotional toll. Cf. Koon,
518 U.S. at 110 (finding an abuse of discretion in the district court’s
reliance upon Koon’s career loss because "it is not unusual for a pub-
lic official who is convicted of using his governmental authority to
violate a person’s rights to lose his or her job and to be barred from
future work in that field"); Rybicki, 96 F.3d at 758 (reaching a similar
conclusion with respect to firearm handler’s deprivation of right to
handle firearms or to vote). Thus, these factors fail to support a depar-
ture by themselves, and they do not come close to reflecting anything
unusual about Coble’s case.

   We do not believe, on the record before us, that combining these
factors with the remaining factors — employment record, lack of
criminal record for over 70 years, community ties and service to his
country — makes Coble’s case exceptional. Cf. Rybicki, 96 F.3d at
758 (rejecting the district court’s decision, in a case involving a simi-
larly decorated veteran who was convicted of a non-violent crime, to
depart downward on the basis of "the confluence" of several factors
that, standing alone, were each insufficient to warrant departure).12
  12
   In United States v. Rybicki, 96 F.3d 754 (4th Cir. 1996), the district
court relied upon a combination of several factors, including that "Ryb-
                         UNITED STATES v. COBLE                          11
None of the factors cited by the district court come close to being
present to an exceptional degree and the district court failed ade-
quately to explain how combining these factors makes them so. In
other words, we simply do not agree that combining these factors
causes Coble’s case to fall within the "extremely rare" circumstances
warranting departure as contemplated by the commentary to § 5K2.0.
We therefore reverse the district court’s decision to depart downward
on the basis of the confluence of these factors because there is no
indication that these factors, considered individually or jointly, are
present to an exceptional degree so as to make Coble’s case atypical.13

icki was a highly decorated Vietnam War veteran who had saved a civil-
ian’s life during the My Lai incident and had an unblemished record of
20 years of service to his country, both in the military and in the Secret
Service." Id. at 758. We stated that
    Rybicki’s 20 years of unblemished service to the United States
    and his responsibilities to his son and wife, both of whom have
    medical problems, are also factors that the Sentencing Guide-
    lines have expressly addressed, instructing that they are ordinar-
    ily not relevant and therefore "discouraged." Because the record
    does not indicate that these factors are present to an "excep-
    tional" degree, they may not form the basis for a downward
    departure.
Id. (internal citations omitted).
   The commentary to § 5K2.0 became effective on November 1, 1994
and superseded our prior holding in United States v. Goff, 907 F.2d 1441,
1447 (4th Cir. 1990), that a combination of factors that did not indepen-
dently warrant departure could not provide a basis for departure.
Although the district court in Rybicki relied upon a combination of fac-
tors that did not independently warrant departure, we did not explicitly
address the applicability of the commentary to § 5K2.0 in that case, and
it is unclear whether Rybicki was sentenced before or after the effective
date of the commentary. We nevertheless find Rybicki instructive, at least
to the extent that Rybicki’s military and public service, which, like
Coble’s, was extensive and distinguished, was considered a discouraged
factor that was not present to an exceptional degree.
   13
      Although the dissent suggests that the district court’s decision to
depart downward in this case is wholly insulated from review pursuant
to Koon v. United States, 518 U.S. 81 (1996), we disagree. Indeed, we
12                      UNITED STATES v. COBLE
                                   III.

  In conclusion, Coble’s conduct was not a single act of aberrant
behavior and the factors cited by the district court, both individually
and in combination, are not present in an exceptional degree so as to
make Coble’s case atypical. Accordingly, we reverse the district
court’s downward departure and remand for resentencing.

have previously stated, in interpreting Koon, that "[w]hen a determina-
tion as to whether a factor is present to an exceptional degree merely
amounts to an evaluation of a showing’s adequacy, we review the district
court’s determination de novo to determine whether the district court
abused its discretion." United States v. Achiekwelu, 112 F.3d 747, 756
(4th Cir. 1997); see United States v. Rybicki, 96 F.3d 754, 758 (4th Cir.
1996) (stating that the evaluation of a showing’s adequacy is a legal
question subject to de novo review); see also United States v. Barber,
119 F.3d 276, 283 (4th Cir. 1997) (en banc) (stating that "the Court in
Koon was quick to acknowledge, lest there be confusion on the point,
that this standard would not shield erroneous legal conclusions from
reversal.").
   Here, the district court’s conclusory "findings" fail adequately to
explain how the combination of the several weak factors in this case
aggregate to form an exceptional case justifying departure, and we there-
fore cannot agree that there has been an adequate showing that the com-
bination of factors relied upon by the district court are present to an
exceptional degree. We, of course, recognize the possibility, as explicitly
left open by the Guidelines, that a district court may support a departure
decision by aggregating several factors that, by themselves, would each
be insufficient to justify departure. Thus, the dissent is correct that our
analysis in United States v. Goff, 907 F.2d 1441 (4th Cir. 1990), no lon-
ger governs. But, as noted above, the Guidelines reserve this possibility
for "extremely rare" cases, and we cannot see how a district court’s use
of mere conclusions can be sufficient to transform an otherwise unexcep-
tional case into an "extremely rare" one as envisioned by the Guidelines.
Indeed, we believe that accepting the dissent’s view would effectively
eviscerate our role in the appellate process by taking the appellate court
out of the picture altogether no matter how scant, conclusory, or unsup-
ported the district court’s findings may be in support of departure.
Although, as a district court judge, we can understand our dissenting col-
league’s interest in doing so, we respectfully decline to adopt that posi-
tion here.
                        UNITED STATES v. COBLE                         13
                                       REVERSED AND REMANDED

LEE, District Judge, dissenting:

   Coble was convicted of attempting to obstruct and impede the due
administration of tax laws for sending a bogus "comptroller warrant"
in an attempt to discharge his outstanding tax liability and to receive
a refund. See 26 U.S.C.A. § 7212(a). The applicable Sentencing
Guidelines range for Coble’s offense was from 10 to 16 months.
Judge Frank W. Bullock, Jr. considered the applicable guideline
range, determined contested sentencing issues, and ultimately decided
to depart downward from the applicable range of punishment. The
district judge utilized his statutorily vested discretion to grant a down-
ward departure based on the extraordinary presence of a combination
of several factors including a single act of aberrant behavior,1 commu-
nity ties, military service, employment record, emotional condition,
and age. The net effect of the district court’s decision was to reduce
the guideline range by two levels, and to allow the Court to place
Coble on home electronic detention for six months with three years
probation. Nonetheless, the majority holds that the district court
abused its discretion because it found nothing exceptional about
Coble’s case which would warrant a downward departure. The major-
ity substitutes its judgment for that of the district court, and makes a
de novo determination of the merits of Coble’s sentence departure. I
respectfully dissent from the majority’s holding because the standard
which it utilizes to determine the merits of Coble’s departure is in
direct contradiction of the mandate of the United States Supreme
Court and Congress.

   The standard of review for the grant of a downward departure is
abuse of discretion. See Koon v. United States, 518 U.S. 81, 91
(1996). A district court abuses its discretion if it makes a legal error
or a clearly erroneous factual finding. See United States v. Debeir,
  1
   As acknowledged by the majority, the district judge also based his
departure on the individual ground of a single act of aberrant behavior.
However, this dissent will not address this point because sufficient
grounds exist to uphold the district judge’s decision on the combination
of factors cited by the district judge which include a single act of aber-
rant behavior.
14                      UNITED STATES v. COBLE
186 F.3d 561, 566-67 (4th Cir. 1999). When reviewing a grant of a
downward departure, the appellate court must make a legal determi-
nation of "whether a factor is a permissible basis for departure under
any circumstances." Koon, 518 U.S. at 100. This inquiry is entitled to
little deference. See id. An appellate court must also determine
whether the district court committed clear error in making its factual
determination of "whether the misconduct that occurred in the partic-
ular instance suffices to make the case atypical." Id. In order to
resolve this question, the appellate court must recognize that the dis-
trict court utilizes its vantage point and day-to-day experience in mak-
ing its assessment. See id. at 97. The district court’s inquiry is entitled
due deference because it embodies the traditional exercise of discre-
tion by a district court. See id. at 98 (citing 18 U.S.C. § 3742(e)(4)).

   The district court here did not abuse its discretion because it did not
commit legal error nor did it make clearly erroneous factual findings
when it decided to depart downward from the applicable Sentencing
Guidelines. First, the district court properly employed the multi-tiered
analysis mandated by Koon. See Koon, 518 U.S. at 95-96. The Court
considered the applicable guideline range of punishment, considered
a variety of discouraged factors and one encouraged factor, then con-
cluded that this case was an atypical case warranting a frugal down-
ward departure. The district court properly rendered factual findings
that Coble’s case presented a combination of factors to such an excep-
tional degree that it made the case atypical. (J.A. at 233-38.) The
majority holds that the district court abused its discretion because the
cited factors, neither individually nor in combination with each other,
were not present to an exceptional degree to warrant departure. How-
ever, the majority’s holding is flawed because it does not demonstrate
how the district judge committed legal error or made clearly errone-
ous factual findings in combining a variety of factors.2
   2
     The majority does not include a single act of aberrant behavior in its
analysis of a combination of factors. The majority states that the district
judge relied on a single act of aberrant behavior and a combination of
separately distinct discouraged factors as two separate grounds for depar-
ture. However, a close look at the district judge’s reasoning shows that
he not only relied on a single act of aberrant behavior as an individual
ground for departure, but he also relied upon a single act of aberrant
behavior as a ground for departure in combination with Coble’s age, lack
of record, service to his country, employment record, and emotional con-
frontations with the IRS. (J.A. at 227, 234-35.)
                       UNITED STATES v. COBLE                        15
   The district judge did not commit legal error in relying on a combi-
nation of factors to grant a departure. The district judge relied upon
a combination of one encouraged factor and five discouraged factors
to arrive at his conclusion to depart from the Sentencing Guidelines.
The Sentencing Guidelines permit a combination of these factors to
serve as permissible grounds for departure if they present an atypical
situation which takes the case out of the heartland of cases considered
by the Sentencing Commission. See U.S.S.G. § 5K2.0, comment; see
generally United States v. Barth, 2001 WL 117499, *4 (4th Cir.
2001); Debeir, 186 F.3d at 573. The district judge ruled that a combi-
nation of Coble’s community ties, military service, employment
record, emotional condition, age, and single act of mailing a bogus
comptroller’s warrant to the IRS were sufficient to place Coble’s case
outside of the heartland of cases contemplated by the Sentencing
Commission, and thus warranted a downward departure. (J.A. 234-
35.) The district judge acknowledged that several factors he consid-
ered, if viewed individually, would not be sufficient to merit a down-
ward departure. Yet, when these factors are considered in
combination a modest downward departure was warranted in Coble’s
case.

   The district judge’s findings were not clearly erroneous. The prob-
lem with the majority’s consideration of this appeal is their flawed
application of prior precedent which has been modified by the amend-
ments to the Sentencing Guidelines. The majority utilizes the same
analysis as that utilized in United States v. Goff, 907 F.2d 1441 (4th
Cir. 1990) (holding that departure was not warranted based on combi-
nation of individually inadequate factors). In Goff, this Circuit
reversed a district court’s downward departure based on a combina-
tion of factors including the defendant’s drug addiction, family ties,
lack of profit from the venture, and the co-conspirator’s lessor sen-
tence. See id. at 1445-47. The Goff court looked at each individual
factor, rejected each on its merits, then stated that

    the district court also departed because it believed that all
    the specific bases mentioned above combine in totality as
    being matters which had not been adequately taken into
    account by the Sentencing Commission. . . . Viewing the
    factors cumulatively adds nothing significant to the calculus.
16                      UNITED STATES v. COBLE
     Therefore, the decision of the district court to depart was
     unreasonable.

Id. at 1447 (internal quotations omitted).

   In 1994, the amended Sentencing Guidelines superceded the Goff
decision by allowing for departure for a combination of factors which
alone would not be a permissible basis for departure. See U.S.S.G.
§ 5K2.0, comment; Debeir, 186 F.3d at 573. Nonetheless, the major-
ity utilizes a Goff-type analysis which parses the district court’s ruling
into a broken prism. The majority (a) looks singularly at Coble’s sin-
gle act of aberrant behavior, age, military service, and emotional tolls
arising from Coble’s battle with the IRS, (b) states why each factor
is insufficient, (c) then makes a blanket assertion that the district court
abused its discretion because these factors combined with his employ-
ment record, lack of criminal record for 70 years, and community ties,
were not present to an exceptional degree to warrant departure. The
majority’s analysis blatantly disregards the mandate of Koon and the
amended Sentencing Guidelines.

   The United States Supreme Court in Koon ruled that "Congress
allows district courts to depart from the applicable Guideline range if
‘the court finds that there exists an aggravating or mitigating circum-
stance of a kind, or to a degree, not adequately taken into consider-
ation by the Sentencing Commission.’" See Koon, 518 U.S. at 92
(citing 18 U.S.C. § 3553(b)). Several factors mentioned by the Sen-
tencing Guidelines may combine to create mitigating or aggravating
circumstances sufficient to warrant a basis for departure. See gener-
ally Debeir, 186 F.3d at 573. Consistent with Koon, the district court
properly found the combination of permissible factors placed the case
outside of the heartland of cases contemplated by the Sentencing
Guidelines. The district court examined a variety of factors and found
Coble to be a 75-year-old man who had no criminal record, served as
a combat pilot in two wars, employed as a commercial airline captain,
had strong family ties, and whose sole offense was to attempt to use
a bogus comptroller’s warrant to satisfy a tax lien against his prop-
erty. The district judge stated that in his 17 years of sentencing, he did
not think that there has been a federal court who sentenced anyone
with Coble’s characteristics within the initial guideline range. (J.A. at
237.) In his institutional experience, Coble’s case was outside of the
                        UNITED STATES v. COBLE                        17
heartland of cases contemplated by the guidelines and some departure
was warranted. The district judge’s considerable sentencing experi-
ence and familiarity with other tax cases are crucial to understanding
why the judge departed in this case.

   At sentencing, the district judge exercised considerable restraint
and integrity in announcing his ruling. He acknowledged that he
could exercise his discretion and grant an undeserved "acceptance of
responsibility" three level departure from the applicable offense level
and such a ruling would be almost "appeal proof." (J.A. at 237.)
Instead, he considered his experience with tax cases and stated that,
in 17 years, he had not seen anyone sentenced to a lengthy term of
incarceration for this offense where the defendant had Coble’s unique
personal characteristics.

   The district judge’s decision to depart two levels, a frugal two
levels, embodied the traditional permissible exercise of discretion in
sentencing. See Koon, 518 U.S. at 98. District courts have an institu-
tional advantage and vantage point over appellate courts in comparing
factors because district courts see so many more Sentencing Guide-
line cases than do appellate courts. See Koon, 518 U.S. at 98
(acknowledging that in 1994 approximately 94% of Guidelines cases
were not appealed); United States v. Hairston, 96 F.3d 102, 106 (4th
Cir. 1996) (acknowledging the institutional advantage of district court
in determining sentences). The district judge’s findings of fact con-
cerning specific circumstances of a case are important because it per-
mits the flexibility necessary for a defendant to be appropriately
sentenced when his case involves unique and unusual facts. See Koon,
518 U.S. at 99. See, e.g., United States v. Reilly, 178 F.3d 1288 (4th
Cir. 1999) (unpublished) (upholding district court’s eleven level
departure on the grounds of post-offense rehabilitation after the dis-
trict court made extensive factual findings). The majority sweeps
aside Judge Bullock’s 17 years of institutional wisdom and casts a
fleeting glance at Koon’s acknowledgment that Congress allows a dis-
trict court to depart from the applicable Guideline range if the district
court finds atypical mitigating circumstance not adequately taken into
consideration by the Sentencing Commission. See Koon, 518 U.S. at
91. In sum, the majority makes a de novo determination that if it were
in the district court’s position, it would have decided the case differ-
ently. Under Koon, an appellate court should reverse a district court’s
18                      UNITED STATES v. COBLE
decision if the district court abuses its discretion, not if it disagrees
with the district court’s decision. See, e.g., United States v. Goodman,
2001 WL 273143, *2-3 (4th Cir. 2001) (unpublished) (applying the
standard in Koon and holding that, even though it was a very close
case, the court cannot conclude that the district court abused its dis-
cretion in departing downward). The majority’s decision comes with-
out the benefit of the trial judge’s sentencing experience or
impression of the testimony presented at Coble’s trial.3 The majority’s
position is completely at odds with the mandate of Koon to review a
downward departure from the Sentencing Guidelines for an abuse of
discretion.

   The district court did not abuse its discretion in finding Coble’s
case was atypical. The Sentencing Guidelines structure sentencing in
a way that adds predictability to the sentencing process. In drafting
these guidelines, the Sentencing Commission could not possibly con-
template every type of circumstance conceivable in sentencing. There
is still room for individualized consideration of the whole person
within the framework of the Sentencing Guidelines. Coble is a recal-
citrant tax evader, a 75-year-old man, who had no criminal record,
served as a combat pilot in two wars, has strong family ties, and had
a good employment record as a commercial airline captain. Coble was
convicted because he attempted to use a bogus comptroller’s warrant
to satisfy a tax lien. The population of offenders possessing Coble’s
offense and other characteristics is small, and indeed, rare. The dis-
trict judge could find no case which factually compared to Coble’s
case in his 17 years experience, and decided to impose a frugal two
level downward departure from the applicable Sentencing Guidelines
which allowed him to place Coble in home electronic detention for
six months and on probation for three years. I respectfully dissent
because the district court did not abuse its discretion in this case and
I would affirm the district court’s judgment.

  3
    This appeal follows a contested trial and sentencing hearing where the
Government did not succeed at an attempt to link Coble to a group which
is notorious for promoting tax evasion schemes. The Government could
not prove that Coble was a member of the group or an adherent to the
group’s wide ranging criminal activities.
