F I L E D

United States Court of Appeals

Tenth Circuit

SEP 8 1998

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

DAVID YAZZIE JONES, Jr.,

Defendant-Appellee.

Nos. 97-2341 & 97-2342

Appeal from the United States District Court

for the District of New Mexico

(D.C. Nos. CR-96-651-JP & CR-97-151-JP)

Richard A. Friedman (John J. Kelly, United States Attorney, and Kathleen Bliss,

Assistant United States Attorney, Albuquerque, New Mexico, with him on the

briefs), Department of Justice, Washington, D.C., for Plaintiff-Appellant.

Thomas B. Jameson, Assistant Federal Public Defender, Albuquerque, New

Mexico, for Defendant-Appellee.

Before BRORBY, HOLLOWAY, and EBEL, Circuit Judges.

BRORBY, Circuit Judge.

David Yazzie Jones pled guilty to one count of possession of a firearm by a

prohibited person, in violation of 18 U.S.C. § 922(g)(8), and one count of
1

 Mr. Jones was sentenced under the 1995 edition of the United States

Sentencing Commission’s Guidelines Manual. All references are to that edition.

2

 Mr. Jones’ sentence arises from separate judgments of conviction entered

for one count from each of two indictments, bearing distinct docket numbers. 

These consolidated appeals followed.

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providing false information to obtain a firearm, in violation of 18 U.S.C.

§ 922(a)(6). After departing downward three levels under the United States

Sentencing Guidelines (U.S.S.G.), 1 the district court sentenced Mr. Jones to six

months of home confinement and three years of probation. Pursuant to 18 U.S.C.

§ 3742(b), the Government now appeals Mr. Jones’ sentence. 2 The Government

variously challenges the permissibility and the adequacy of the grounds identified

by the district court as the basis for the departure. We have jurisdiction pursuant

to 18 U.S.C. § 1291 and we affirm.

BACKGROUND

Mr. Jones married Janice Begay in 1979, eventually establishing a

homestead with her in New Mexico. After their union produced three children,

the marriage began to unravel. By 1995, Mr. Jones and his wife were estranged,

and he had left their marital home. Ms. Begay obtained a series of restraining

orders against Mr. Jones. The first order restraining Mr. Jones was issued by the

Family Court of the Navajo Nation in June 1995. For reasons not clear from the
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record, Ms. Begay then moved her case to the New Mexico state district court. 

The state district court issued its first restraining order in September 1995.

On September 15, 1995, while under a restraining order issued at Ms.

Begay’s behest, Mr. Jones allegedly approached his estranged wife’s residence,

located in Indian country, while carrying a handgun. Mr. Jones was arrested a

few hours later in the early morning hours of September 16, 1995, on a rural road

near Ms. Begay’s residence. A handgun was found in the vehicle in which he was

riding. Mr. Jones was convicted in state magistrate court of negligent use of a

deadly weapon and fined $100.

By March 1996, the Federal Bureau of Investigation had begun

investigating Mr. Jones. On November 7, 1996, a federal grand jury indicted Mr.

Jones. The indictment charged Mr. Jones with four counts of interstate violation

of a protection order, in violation of 18 U.S.C. §§ 2262(a)(1), (b)(3), and (b)(5). 

Based on the September 15, 1995 incident, the indictment also charged one count

of possession in or affecting commerce of a firearm and ammunition by a

prohibited person, in violation of 18 U.S.C. §§ 922(g)(8) and 924(a)(2).

On November 14, 1996, Mr. Jones was arrested for the charges in the
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federal indictment. After his arraignment, he was released on personal

recognizance on November 18, 1996. As a general condition of his release, Mr.

Jones was not to commit any criminal offenses. Additional conditions of release

prohibited Mr. Jones from possessing firearms, and from traveling, except for

limited, specified purposes ( e.g. , work, church, grocery shopping).

Prior to his indictment on federal charges, Mr. Jones had been making

installment payments toward the purchase of a firearm from Kirtland Pawn and

Sporting Goods, located in Kirtland, New Mexico. On January 23, 1997, Mr.

Jones traveled with a friend to Kirtland to make the final payment on the weapon. 

In filling out the requisite Bureau of Alcohol, Tobacco and Firearms form, Mr.

Jones falsely indicated he was not under indictment for a crime punishable by

more than one year of imprisonment, and misstated his date of birth. Store

employees stated Mr. Jones claimed to be a police officer and wanted to take

possession of the weapon without a so-called “Brady” clearance. Mr. Jones never

attempted to claim the weapon after the mandatory five-day waiting period.

During this period, Ms. Begay had informed Federal Bureau of

Investigation agents that she had discovered a receipt belonging to Mr. Jones for

the purchase of a firearm. On February 11, 1997, Bureau agents filed a criminal
3

 Each of the two offenses to which Mr. Jones pled guilty had a base

offense level of 14. The base offense level was enhanced by 2 levels to reflect

the existence of two non-grouped offenses. See U.S.S.G. § 3D1.4.

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complaint against Mr. Jones arising from his attempted purchase of the firearm

from the Kirtland store. On March 5, 1997, Mr. Jones was indicted for making

false statements in connection with acquisition of a firearm, in violation of 18

U.S.C. §§ 922(a)(6) and 924(a)(2).

On May 14, 1997, pursuant to a plea agreement under Rule 11(e)(2) of the

Federal Rules of Criminal Procedure, Mr. Jones pled guilty to the firearmpossession count of the initial indictment and to the false-statement count of the

second indictment. Under the terms of the plea agreement, the Government

agreed to dismiss the other four counts contained in the first indictment and to

stipulate to a three-level decrease under the Sentencing Guidelines for acceptance

of responsibility, contingent on an appropriate culpability statement from Mr.

Jones. See U.S.S.G. § 3E1.1(a) and (b)(2).

The initial presentence report placed Mr. Jones in criminal history category

I, and assigned him an adjusted base offense level of 16. 3 The probation office

deducted a total of three levels for Mr. Jones’ acceptance of responsibility,
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resulting in a total offense level of 13. See U.S.S.G. §§ 3E1.1(a) and (b)(2). 

Based on these computations, the guideline range for Mr. Jones’ offense was

twelve to eighteen months imprisonment. See U.S.S.G. Ch. 5 Pt. A.

Following preparation of the presentence report, Mr. Jones moved for a

three-level downward departure to offense level 10, which would allow the

district court to impose a sentence of probation with home detention. Mr. Jones

raised multiple grounds for departure, which the probation office summarized as

his exemplary employment history; the harm to his children if he was unable to

provide child support; and the aberrant nature of his criminal conduct. The

probation office opined that none of the factors proffered by Mr. Jones would

individually warrant a downward departure, but the combination of factors might

suffice. The probation office concluded that “a departure would not be

inappropriate.”

On August 27, 1997, the district court conducted a sentencing hearing. At

the hearing, the district court adopted the factual findings of the presentence

report, as amended. The court also referenced receipt of twelve letters and

statements praising Mr. Jones’ character and past conduct, and heard from Ms.

Begay. The district court entertained lengthy arguments from both sides on the
4

 Briefly stated, the following factors were cited by the district court: (1)

the employment consequences Mr. Jones would face if he was incarcerated; (2)

the financial hardship his incarceration would impose on his children; (3) the

aberrational character of his offense conduct; (4) his long history of community

service; (5) his support in the community, even among Ms. Begay’s family; (6)

his lack of notice of the criminality of his conduct as a prohibited person in

possession of a firearm; (7) his early disclosure of the facts underlying the falsestatement offense to his pretrial services officer; (8) his scrupulous compliance

with the conditions of his release; (9) his significant post-arrest improvement;

(10) his unique access to rehabilitative counseling in his work setting; and (11)

the probation office’s conclusion that a departure would be appropriate.

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appropriateness of a downward departure. In the end, the district court granted

Mr. Jones’ motion for a three-level downward departure under U.S.S.G. § 5K2.0. 

The court cited eleven factors which, in combination , warranted the downward

departure. 4

The three-level downward departure reduced Mr. Jones’ offense level to 10,

resulting in a guideline imprisonment range of six to twelve months, thus

allowing for a sentence of probation with home confinement under U.S.S.G.

§ 5C1.1(c)(3). Accordingly, the district court sentenced Mr. Jones to three years

probation with special conditions, including a six-month period of home

confinement under electronic monitoring, and forty hours of community service. 

These appeals followed.
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ANALYSIS

As a general rule, if the case before the district court is a typical one, the

court must impose a sentence within the applicable Sentencing Guidelines range. 

18 U.S.C. § 3553(a); see also Koon v. United States , 518 U.S. 81, 85 (1996). 

However, the Sentencing Commission recognized that unusual or atypical cases

would arise, and explicitly reserved some degree of flexibility to the sentencing

court:

The Commission intends the sentencing courts to treat each guideline

as carving out a “heartland,” a set of typical cases embodying the

conduct that each guideline describes. When a court finds an

atypical case, one to which a particular guideline linguistically

applies but where conduct significantly differs from the norm, the

court may consider whether a departure is warranted.

U.S.S.G. Ch. 1, Pt. A, intro. comment. 4(b). See also Koon , 518 U.S. at 98

(recognizing departure decisions as “embod[ying] the traditional exercise of

discretion by a sentencing court”). Thus, district courts may depart from the

applicable guideline range if “the court finds that there exists an aggravating or

mitigating circumstance of a kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission in formulating the guidelines that

should result in a sentence different from that described.” 18 U.S.C. § 3553(b). 

In determining whether a circumstance was adequately taken into consideration by

the Sentencing Commission, our inquiry is limited to the Sentencing Guidelines,

policy statements, and official commentary of the Commission. Id.
5

 In Collins, the sentencing court provided three grounds for its downward

departure, two of which, the defendant’s age and infirmity, are considered

discouraged factors. See Collins, 122 F.3d at 1305; U.S.S.G. § 5H1.1, p.s.; id.

§ 5H1.4, p.s. The reviewing panel’s analysis makes it clear that a discouraged

factor aggregated with other factors as grounds for a departure need not rise to the

same level of atypicality as would be required were that factor the sole basis for

the departure. Collins, 128 F.3d at 1305 n.6, 1305-07.

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Since the Supreme Court’s watershed decision in Koon , this court has

employed a four-prong analysis in reviewing decisions to depart from the

applicable guideline sentencing range. See United States v. Collins , 122 F.3d

1297, 1303 (10th Cir. 1997). We evaluate “whether the factual circumstances

supporting a departure are permissible departure factors.” Id. “Impermissible

factors include forbidden factors, discouraged factors that are not present to some

exceptional degree, and encouraged factors already taken into account by the

applicable guideline that are not present to some exceptional degree.” 5 Id. This

inquiry, “whether a factor is a permissible departure factor under any

circumstances” is “essentially legal,” and our review is plenary. Id. We also

evaluate “whether the departure factors relied upon by the district court remove

the defendant from the applicable Guideline heartland thus warranting a

departure.” Id. This second inquiry is “essentially factual,” and our review is “at

its most deferential.” Id. Finally, we evaluate “whether the record sufficiently

supports the factual basis underlying the departure,” and “whether the degree of
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departure is reasonable.” Id. In keeping with the guidance of Koon , all four

aspects of our departure review are subject to a unitary abuse of discretion

standard. Id.; see also Koon , 518 U.S. at 99-100 (providing rationale for unitary

abuse of discretion standard).

Here, the district court granted a three-level departure under U.S.S.G.

5K2.0, which authorizes a departure if the court finds a mitigating or aggravating

circumstance not adequately taken into account by the Sentencing Commission. 

See also 18 U.S.C. § 3553(b). The district court based its departure on a

combination of eleven factors. See U.S.S.G. § 5K2.0, comment. (recognizing that

combination of circumstances or offender characteristics may remove a case from

the heartland). The Government contends the district court abused its discretion

in departing from the guideline sentencing range because each of the individual

grounds is an impermissible basis for departure under the circumstances of this

case, thus, “[n]o combination of the wholly inadequate factors in this case could

remove the defendant’s case from the heartland and justify a departure.”

In reviewing the decision to depart, pursuant to Collins , we must first

determine whether the district court relied on permissible departure factors. If the

eleven factors relied on by the district court are permissible, we then ask whether
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the combination of factors removes Mr. Jones from the heartland of the

Sentencing Guidelines, giving substantial deference to the district court’s

conclusion that the facts of this case made it atypical. See Collins , 122 F.3d at

1305. If we determine the district court based its decision to depart on both

permissible and impermissible factors, we are required to remand the case unless

it is clear the district court “would have imposed the same sentence absent

reliance on the invalid factors.” Koon , 518 U.S. at 113 (citing Williams v. United

States , 503 U.S. 193, 203 (1992)).

As its first ground for departure, the district court pointed to “the

defendant’s long, impressive work history in a situation where good jobs are

scarce,” finding “specifically that he has been employed in a very good position

for 14 years, earning a very high income for the community in which he lives,

which is in an economically depressed area with few job opportunities.” The

Government reduces the district court’s finding to Mr. Jones’ “good employment

history, “ a factor “not ordinarily relevant in determining whether a sentence

should be outside the applicable guideline range.” U.S.S.G. § 5H1.5, p.s. In

support of its contention that employment history is not a permissible factor under

the circumstances of this case, the Government points to this court’s prior

rejection of a defendant’s “reliable employment record replete with positive
6

 A defendant’s employment record is categorized in the Sentencing

Guidelines with other specific offender characteristics, ordinarily discouraged

bases for departure. See U.S.S.G. Ch. 5, Pt. H, intro. comment. While

discouraged factors are not “necessarily inappropriate” bases for departure, they

are to be relied on only “in exceptional cases.” Id.

7

 The Fourth Circuit identified the following factors as categorically

impermissible bases for departure under the Sentencing Guidelines: “drug or

alcohol dependence or abuse; race, sex, national origin, creed, religion, or

socioeconomic status; lack of youthful guidance or similar circumstances

indicating a disadvantaged upbringing; personal financial difficulties or economic

pressure on a trade or business.” United States v. Brock, 108 F.3d 31, 34 (4th Cir.

1997) (citations omitted).

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comments from employers” as a basis for departure in United States v. Ziegler , 39

F.3d 1058, 1062 (10th Cir. 1994) (internal quotation marks and citation omitted).

Employment history ordinarily is a discouraged basis for departure. 6 See

U.S.S.G. § 5H1.5, p.s. However, neither the Sentencing Guidelines nor Tenth

Circuit precedent categorically precludes the district court’s consideration of

employment history in making its departure decision. As the Supreme Court has

made clear, the Sentencing Commission “chose to prohibit consideration of only a

few factors, and not otherwise to limit, as a categorical matter, the considerations

which might bear upon the decision to depart.” 7

 See Koon , 518 U.S. at 94; see

also U.S.S.G. Ch. 1, Pt. A, intro. comment. 4(b) (indicating Commission “does

not intend to limit the kinds of factors, whether or not mentioned anywhere else in
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the guidelines, that could constitute grounds for departure in an unusual case”). 

While this court rejected reliance on employment history, along with five other

considerations, as evidence of an “extraordinary acceptance of responsibility” in

Zeigler , 39 F.3d at 1062, elsewhere we have affirmed downward departures based

in part on this factor. See United States v. Tsosie , 14 F.3d 1438, 1441-42 (10th

Cir. 1994) (using defendant’s long-term employment as one factor demonstrating

offense conduct was aberrational).

Moreover, the Government has attributed an unnecessarily cramped

interpretation to the district court’s finding. By it terms, the court’s finding is not

limited to Mr. Jones’ exemplary employment history solely as a personal

characteristic. The district court considered Mr. Jones’ employment history and

the impact of incarceration on his prospects for future employment in light of the

community in which he lives, an economically depressed area. While rejecting

their application under the facts of Koon , the Supreme Court gave its approval to

the district court’s consideration of collateral employment consequences in the

decision to depart. See Koon , 518 U.S. at 109-11. We find nothing in the

Guidelines to suggest the Sentencing Commission either intended to proscribe

consideration of or fully considered such factors. See id. at 109 (concluding

reviewing court’s role “is limited to determining whether the Commission has
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proscribed, as a categorical matter, consideration of the factor”).

When a factor is not fully considered by the Sentencing Guidelines, “the

court must, after considering the ‘structure and theory of both relevant individual

guidelines and the Guidelines taken as a whole,’ ... decide whether it is sufficient

to take the case out of the Guideline’s heartland.” Id. at 96 (quoting United

States v. Rivera , 994 F.2d 942, 949 (1st Cir. 1993)). However, in this instance

the district court did not rely on collateral employment consequences as a discrete

basis for departure. Accordingly, we need consider this factor as only one of the

eleven factors supporting the court’s decision to grant a departure under U.S.S.G.

5K2.0. See Collins , 122 F.3d at 1305 n.6 (noting appellate court’s consideration

of guideline factor as one of multiple reasons supporting departure decision rather

than as sole basis of departure). A factor may be considered in the aggregate if it

is “atypical,” even though it may not be sufficient, in and of itself, to support a

departure.

After reviewing the record, we conclude the district court did not abuse its

discretion in determining the collateral employment consequences Mr. Jones

would suffer as a result of incarceration were atypical. While it is not unusual for

any individual to suffer employment consequences as a result of incarceration, the
8

 At the time of sentencing, Mr. Jones’ children were aged seventeen,

twelve and nine; he was paying approximately $690 per month in child support.

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economically depressed area in which Mr. Smith lived would attach unique

burdens to his incarceration.

The second ground for departure cited by the district court was the

economic hardship Mr. Jones’ incarceration would inflict on his three children

and estranged wife due to his decreased ability to pay child support. 8

 Under

U.S.S.G. § 5H1.6, p.s., “[f]amily ties and responsibilities ... are not ordinarily

relevant in determining whether a sentence should be outside the applicable

guideline range.” Family ties and responsibilities are specific offender

characteristics, ordinarily a discouraged basis for departure. See U.S.S.G. Ch. 5,

Pt. H, intro. comment. However, § 5K2.0 makes it clear such factors can be the

basis of a departure in atypical cases:

An offender characteristic ... that is not ordinarily relevant in

determining whether a sentence should be outside the applicable

guideline range may be relevant to this determination if such

characteristic ... is present to an unusual degree and distinguishes the

case from the “heartland” cases covered by the guidelines in a way

that is important to the statutory purposes of sentencing.

U.S.S.G. § 5K2.0, p.s.; see also Koon , 518 U.S. at 96 (concluding district court

may depart “if the [discouraged] factor is present to an exceptional degree or in
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some other way makes the case different from the ordinary case”). Thus, a

district court may rely on offender characteristics such as family ties and

responsibilities in making a decision to depart from the Guidelines.

When used as the sole basis for departure, family circumstances must be

“extraordinary.” United States v. Rodriguez-Velarde , 127 F.3d 966, 968-69 (10th

Cir. 1997). To warrant a departure on this basis, “a defendant must demonstrate

that ‘the period of incarceration set by the Guidelines would have an effect on the

family or family members beyond the disruption to family and parental

relationships that would be present in the usual case.’” Id. at 968 (quoting United

States v. Canoy , 38 F.3d 893, 907 (7th Cir. 1994)). However, in this case, we

consider Mr. Jones’ family responsibilities not as the sole basis for departure, but

in conjunction with ten other factors identified by the district court.

Even considered as one factor supporting a composite mitigating

circumstance, we are not convinced Mr. Jones’ family responsibilities are

sufficiently unusual to render this discouraged factor a permissible basis for

departure. While Mr. Jones provides substantial child support, Ms. Begay, the

custodial parent, is employed and capable of providing for the children. The

district court erred when it relied on Mr. Jones’ family circumstances as one
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ground for departure.

As the third ground for departure, the district court concluded Mr. Jones’

offense conduct was aberrational, making the following finding:

[T]he defendant’s offense conduct was out of character for the

defendant, who basically had been law-abiding until age 35, when his

marriage disintegrated. The defendant’s offense conduct was an

aberration ... related to the turmoil involved in marital separation.

The Sentencing Guidelines indicate the Commission “has not dealt with the single

acts of aberrant behavior that still may justify probation at higher offense levels

through departures.” U.S.S.G. ch. 1, pt. A , intro. 4(d). The Government does

not challenge directly the permissibility of this factor, but does argue Mr. Jones’

offense conduct does not qualify as aberrant behavior under the Guidelines

because it is neither a single act nor truly aberrant.

Under our case law, the aberrant nature of a criminal defendant’s offense

conduct may properly be considered as a mitigating factor in a downward

departure decision. See Tsosie , 14 F.3d at 1441 (holding aberrational conduct

combined with steady employment and economic support of family warranted

departure); United States v. Pena , 930 F.2d 1486, 1495 (10th Cir. 1991) (holding

extraordinary family responsibilities combined with aberrational nature of conduct

warranted departure). In Pena , we focused our departure analysis not on the
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number of discrete acts undertaken by the defendant, but on “[t]he aberrational

character of her conduct.” Pena , 930 F.2d at 1495. More recently, this court

suggested a district court’s reliance on Pena was undermined by its failure to

make a finding that the defendant’s “criminal acts constituted a single aberrant

episode or were utterly inconsistent with his character.” United States v.

Archuleta , 128 F.3d 1446, 1450 (10th Cir. 1997) (emphasis added). Nothing in

the Sentencing Guidelines or our case law indicates it is impermissible for a

district court to consider a single aberrant episode in making a decision to depart. 

See Tsosie , 14 F.3d at 1441-42 (examining totality of the circumstances); Pena ,

930 F.2d at 1494-95 (same).

In reviewing the district court’s characterization of Mr. Jones’ offense

conduct as aberrant behavior under the abuse of discretion standard we must

determine how much deference is due. The Supreme Court has indicated

deference is owed to the “judicial actor better positioned than another to decide

the issue in question.” Koon , 518 U.S. at 99 (quotation marks, omission, and

citations omitted). The Supreme Court has further indicated the district court has

a “special competence” in making the fact-specific assessments necessary to

determine whether a particular case is sufficiently unusual to warrant departure. 

Id. In such instances, deferential appellate review facilitates the district court’s
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resolution of questions involving “multifarious, fleeting, special, narrow facts that

utterly resist generalization.” Id. (quotation marks and citation omitted).

We are convinced the determination of whether an individual defendant’s

offense conduct is aberrational, like the decision to depart, requires consideration

of unique factors not readily susceptible of useful generalization. The district

court is in the better position to determine whether the defendant’s offense

conduct is out of character for that individual. Accordingly, the district court’s

resolution of this largely factual question is due substantial deference. After

reviewing the record here, we conclude the district court did not abuse its

discretion when it found Mr. Jones’ offense conduct to be aberrational in light of

his personal history.

The fourth and fifth grounds for departure cited by the district court were,

respectively, Mr. Jones’ long history of community service, and his strong support

in the community, even among the family of the victim. The Sentencing

Guidelines treat “good works” and community ties as specific offender

characteristics, not ordinarily relevant to sentencing. U.S.S.G. §§ 5H1.6, p.s. and

5H1.11, p.s. The Government contends there is “nothing” in the record to support

departure on these bases. We disagree. The sentencing court specifically found
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the number of letters from Ms. Begay’s close relatives written in support of Mr.

Jones, extolling his past “good works” and opposing his incarceration “very

unusual.” Community leaders also wrote similar letters on Mr. Jones’ behalf.

While criticizing the district court for not reviewing Mr. Jones’ community

service in detail, the Government points to nothing in the record that would lead

us to second-guess the district court’s assessment. The district court had

reviewed twelve letters written on Mr. Jones’ behalf, detailing his good works. 

While the district court could have done a more thorough job of explaining its

reasoning, and we would be reluctant to sustain a departure solely on this basis,

we cannot conclude the district court abused its discretion by aggregating this

factor in support of a downward departure. See United States v. Rioux , 97 F.3d

648, 663 (2d Cir. 1996) (affirming downward departure based on defendant’s

medical condition and good deeds).

The Government contends Mr. Jones’ support in the community, most

notably among Ms. Begay’s family, is irrelevant to sentencing. The Government,

in reliance on Unites States v. Meacham , 115 F.3d 1488 (10th Cir. 1997), argues

that the views of Ms. Begay’s relatives have no relevance. Meacham , a case in

which the district court relied for its departure on the twelve-year-old victim’s
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“utter forgiveness” of the adult relative who sexually abused her is simply

inapposite. See Meacham , 115 F.3d at 1497. The basis of the departure here is

not the victim’s forgiveness, but Mr. Jones’ support in the community. See

United States v. Big Crow , 898 F.2d 1326, 1332 (8th Cir. 1990) (affirming

downward departure based in part on “solid community ties”). While Mr. Jones’

support in the community is insufficiently “extraordinary” to support a departure

on this basis alone, the district court did not abuse its discretion by relying on this

factor as one of several grounds supporting a departure.

The sixth ground for departure cited by the district court was Mr. Jones’

lack of notice that he could not possess a firearm because he was subject to a

domestic restraining order. See 18 U.S.C. § 922(g)(8). The court specifically

found that Mr. Jones lacked notice of the criminality of his conduct, and was

“unaware that it was an offense at the time it was committed.” The record

indicates Mr. Jones was the first person in the district prosecuted as a prohibited

person under the domestic relations order provision.

The Government argues persuasively that “[t]here is no requirement that

defendant be aware of the law or even act ‘willfully’ in order to be lawfully

convicted under Section 922(g).” But Mr. Jones’ conviction is not at issue here;
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the issue is whether the Guidelines provide us with guidance on the use of a

defendant’s lack of notice as a basis for departure.

Lack of notice is not addressed specifically by the Sentencing Guidelines. 

When a factor is unmentioned by the Guidelines, we look to the “structure and

theory of both relevant individual guidelines and the Guidelines taken as a

whole.” Koon , 518 U.S. at 96 (quotation marks and citation omitted). The

applicable individual guideline is U.S.S.G. § 2K2.1(a)(6), covering offenses

involving the unlawful possession of firearms or ammunition by a prohibited

person. The specific offense characteristics for this guideline provide for a

downward departure if a prohibited person possessed the firearm for “lawful

sporting purposes or collection, and did not unlawfully discharge or otherwise

unlawfully use” the weapon. Id. § 2K2.1(b)(2). There is a specific enhancement

if the weapon is used or intended to be used in another felony offense. Id.

§ (b)(5).

While Mr. Jones claims his possession of a firearm was innocent, the fact

remains the charge was rooted in his conduct on September 15-16, 1995. On that

occasion, Mr. Jones was accused of violating a domestic restraining order by

approaching his estranged wife’s home while carrying a handgun, was arrested
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while in a vehicle with a handgun determined to be his, and was convicted in state

magistrate court of negligent use of a deadly weapon. Under these circumstances,

Mr. Jones’ claim that he is “less culpable” because he lacked notice of the

specifics of 18 U.S.C. § 922(g)(8) rings hollow. While he did not use the weapon

in a felony offense, he did negligently misuse the weapon. The relevant guideline

clearly intended to punish innocent possession and use of a firearm less severely,

and improper use more severely. Consequently, we conclude Mr. Jones’ lack of

notice was not a permissible basis for departure under the facts of this case.

 The seventh ground for departure identified by the district court was Mr.

Jones’ “highly unusual” disclosure of the facts underlying his false-statement

offense to his pretrial service officer. The Government contends Mr. Jones’

voluntary disclosure is an impermissible basis for departure because the ongoing

federal investigation eventually would have discovered the offense, and because

he received an acceptance of responsibility adjustment under the terms of the plea

agreement.

In discussing grounds for departure, the Sentencing Guidelines state that

“[i]f the defendant voluntarily discloses to authorities the existence of, and

accepts responsibility for, the offense prior to the discovery of such offense, and
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if such offense was unlikely to have been discovered otherwise, a departure below

the applicable guideline range for that offense may be warranted.” U.S.S.G.

§ 5K2.16, p.s. However, disclosures motivated by “the defendant’s knowledge

that discovery of the offense is likely or imminent, or where the defendant’s

disclosure occurs in connection with the investigation or prosecution of the

defendant for related conduct” are excluded. Id. Mr. Jones’ disclosure appears to

fall between the express provisions of the Guidelines, i.e. , his disclosure does not

appear to have been motivated by fear of detection, but the offense was likely to

be discovered. While not falling squarely within the departure provision, we

cannot conclude the inevitable discovery of Mr. Jones’ offense somehow

transforms his nonetheless voluntary disclosure into an impermissible basis for

departure. Moreover, there is nothing in the record to indicate Mr. Jones was

aware the Federal Bureau of Investigation had received a lead and was looking

into his purchase of a firearm. Consequently, his disclosure to the pretrial

services officer did not occur “in connection with” that investigation and is not

excluded as a ground for departure under § 5K2.16.

Prior to the district court’s downward departure, Mr. Jones received a

three-level deduction for acceptance of responsibility. See U.S.S.G. §§ 3E1.1(a)

and (b)(2). While not a matter of right, this deduction is quite common in cases
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where the defendant enters a timely plea of guilty. See U.S.S.G. § 3E1.1,

comment. (n.1-2), (backg’d.); see also United States v. Core , 125 F.3d 74, 78 (2d

Cir. 1997) (noting standard acceptance of responsibility reduction is “easily

achieved and is accordingly of relatively low value”), cert. denied , 118 S. Ct. 735

(1998). Without elaboration, the Government asserts this “is all that is legally

permissible.” We disagree. First, the grounds cited by the district court focus on

the voluntariness of Mr. Jones’ disclosure, not simply his acceptance of

responsibility. Second, the Sentencing Commission specifically acknowledged

that the district court is in a “unique position to evaluate a defendant’s acceptance

of responsibility.” U.S.S.G. § 3E1.1, comment. (n.5). “For this reason, the

determination of the sentencing judge is entitled to great deference on review.” 

Id. By this same logic, we must accord the district court’s decision that Mr.

Jones’ conduct was “highly unusual” and went beyond the scope of U.S.S.G.

§ 3E1.1 due deference. Accordingly, we cannot say the district court abused its

discretion when it relied, in part, on Mr. Jones’ early, voluntary disclosure of the

facts underlying one of the charges against him as one of several bases for

departure.

The eighth and ninth grounds for departure cited by the district court were,

respectively, Mr. Jones’ adherence to the conditions of his release, and
-26-

improvement in his post-offense conduct. Treating both grounds as post-offense

rehabilitation, the Government contends that this factor is not a permissible

ground for departure under Tenth Circuit precedent, and that the Sentencing

Guidelines have already taken such efforts into account under the acceptance of

responsibility guideline.

The Government points to this court’s decision in Zeigler , and its progeny,

for the proposition that post-offense rehabilitation “is an improper ground[] for

departure beyond that authorized by the acceptance of responsibility provision” of

the Guidelines. Zeigler , 39 F.3d at 1061; see also U.S.S.G. § 3E1.1, comment. (n.

1(g)). However, another panel of this court recently determined our decision in

Zeigler was “effectively overruled by Koon .” United States v. Whitaker , ___ F.3d

___, ___, 1998 WL 480091, *1 (10th Cir. Aug. 17, 1998). The Supreme Court’s

holding in Koon makes it clear the district court has the authority to consider

post-offense rehabilitation as a basis for downward departure. Koon , 518 U.S. at

94-96, 108-09 (holding district court may consider any factor not specifically

prohibited by the Sentencing Guidelines); see also United States v. Sally , 116

F.3d 76, 80 (3d Cir. 1997) (holding downward departure may be warranted by

exceptional post-offense rehabilitation efforts); United States v. Brock , 108 F.3d

31, 34 (4th Cir. 1997) (overruling, in light of Koon , earlier holding that post-
-27-

offense rehabilitation can never be the basis of departure).

The Sentencing Guidelines have taken post-offense rehabilitation efforts

into consideration. See U.S.S.G. § 3E1.1, comment. (n. 1(g)). One of the

“appropriate considerations” in determining whether a defendant qualifies for the

acceptance of responsibility reduction is post-offense rehabilitation, including

counseling or drug treatment. Id. (n.1). When an encouraged factor has been

taken into consideration by the Guidelines, it may serve as the basis for departure

only when present to some “exceptional degree.” Collins , 122 F.3d at 1303. 

However, we remain mindful of the fact that the district court is better situated to

make this determination and is, therefore, entitled to “great deference on review.” 

U.S.S.G. § 3E1.1, comment. (n. 5).

In describing Mr. Jones’ post-offense conduct, the district court specifically

noted Mr. Jones had “scrupulously followed the conditions of release,” including

refraining from contact with Ms. Begay, his estranged wife. Mr. Jones had

“worked regularly,” supported his three children, and had daily contact and

regular consultations with a psychologist, resulting in a “significant improvement

in [Mr. Jones’] understanding and attitude.” The district court found Mr. Jones

had changed both his “attitude and conduct” during his post-arrest release. In
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deciding to depart downward, the sentencing court concluded Mr. Jones’ postarrest improvement was “significant.”

The fact-based assessment of whether Mr. Jones’ post-offense

rehabilitation efforts are exceptional falls squarely within the realm of the district

court’s “special competence.” Koon , 518 U.S. at 99. The record supports the

district court’s finding Mr. Jones’ efforts were atypical. Therefore, the district

court did not abuse its discretion relying on Mr. Jones’ post-offense conduct as a

basis for its downward departure.

The tenth ground for departure supplied by the district court was the

negative effect incarceration would have on both the quality and quantity of Mr.

Jones’ rehabilitative counseling. The Government contends a defendant’s mental

and emotional conditions are not ordinarily relevant to sentencing, and that there

was “nothing life-threatening or otherwise exceptional about the deprivation” of

counseling services in Mr. Jones’ case.

Mental and emotional conditions are specific offender characteristics. 

U.S.S.G. § 5H1.3, p.s. As such, they ordinarily are discouraged bases for

departure. U.S.S.G. ch.5, pt. H, intro. comment. However, the Guidelines clearly
-29-

provide that a sentencing court may consider specific offender characteristics in

determining whether to depart if the characteristic “is present to an unusual

degree and distinguishes the case from the ‘heartland’ cases covered by the

guidelines in a way that is important to the purposes of sentencing.” Id. § 5K2.0,

p.s. One of the purposes of sentencing is “to provide the defendant with needed

education or vocational training, medical care, or other correctional treatment in

the most effective manner.” 18 U.S.C. § 3553(a)(2)(D).

The district court found Mr. Jones’ employment at a public health facility

afforded him the opportunity for daily contact with his psychologist, putting Mr.

Jones “in a very special position to receive the most effective counseling for

rehabilitation.” The sentencing court also found incarceration would sever Mr.

Jones’ connection to a counselor the court determined to be “beneficial” to him. 

Id. The court concluded the “unusual situation” of Mr. Jones’ employment

provided the “very best place” for him to receive rehabilitative counseling.

Contrary to the Government’s assertions, there was something

“exceptional” about Mr. Jones’ circumstances: his unique access to rehabilitative

counseling in his work setting. Maximizing the effectiveness of rehabilitative

counseling clearly serves one of the primary purposes of sentencing, correctional
-30-

treatment. Under these circumstances, we conclude the district court did not

abuse its discretion when it considered access to rehabilitative counseling as one

factor supporting its decision to depart downward.

As its eleventh reason for departure, the district court indicated it was

“impressed by the fact that the United States Probation Office has concluded that

it is appropriate to depart downward in this instance.” The Government contends

this was not a permissible ground for departure, because “[i]f a departure is not

based on a lawful ground, support for it by the probation officer has no legal

consequence.” While we agree with the Government that the unsupported opinion

of a probation officer cannot serve as the basis for a departure, we are of the

opinion the Government may be reading too much into the observation of the

sentencing court.

In this case, the probation officer reviewed Mr. Jones’ motion for a

downward departure. In an addendum to the presentence report, the probation

officer considered the factual basis of the departure factors identified by Mr.

Jones, and whether those factors could support a departure under the Sentencing

Guidelines. Sentencing courts typically rely, both explicitly and implicitly, on the

expertise and recommendations of the probation office in working with the
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Sentencing Guidelines. In this instance the district court simply indicated that it

had favorably considered the probation officer’s opinion. As we have discussed

elsewhere, it is important for sentencing courts to be precise in making sentencing

comments, particularly in relation to departure decisions. See United States v.

Haggerty , 4 F.3d 901, 904 (10th Cir. 1993). We will not fault the district court

here for thoroughly reporting its reasons for departure. While it would be

inappropriate for a sentencing court to rely solely on the unsubstantiated opinion

of a probation officer, it is not impermissible for the district court to consider the

probation officer’s opinion on the appropriateness of a departure. However, we

do not consider this “factor” on a par with the other grounds for departure

articulated by the district court.

Having reviewed the eleven grounds for departure considered by the

sentencing court, we conclude the district court relied on both valid and invalid

factors. Permissible factors considered by the district court included collateral

employment consequences, aberrant nature of the offense conduct, community

service, support in the community, voluntary disclosure of offense conduct, postoffense rehabilitation, and access to rehabilitative counseling. Only family

responsibilities and lack of notice of the criminality of his offense conduct were

impermissible factors under the circumstances of this case.
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We move to the second inquiry in our departure analysis, whether the

combination of permissible factors considered by the district court removes Mr.

Jones’ case from the heartland of the Sentencing Guidelines. Collins , 122 F.3d at

1303. This inquiry is essentially factual and the assessments of the district court

are entitled to substantial deference. Id. Of necessity then, we simultaneously

consider whether the record sufficiently supports the factual basis of the

departure. Id.

The Sentencing Commission explicitly left open “the possibility of an

extraordinary case that, because of a combination of such characteristics or

circumstances [not ordinarily relevant to a departure], differs significantly from

the ‘heartland’ cases covered by the guidelines in a way that is important to the

statutory purposes of sentencing.” U.S.S.G. § 5K2.0, comment. While

recognizing that such an atypical case might warrant a departure, the Government

summarily asserts that “[n]o combination of the wholly inadequate factors in this

case could remove defendant’s case from the heartland and justify a departure.”

The record before us leaves no doubt the sentencing court found this case

sufficiently atypical to warrant departure, without recourse to the two

impermissible factors. First, the district court made a global assessment that “all
-33-

of these factors,” not in combination, but individually, “are present to an

exceptional degree.” Second, the court’s discussion of the various individual

grounds for departure indicates the permissible factors were present to an

exceptional degree. By way of illustration, the court referred to Mr. Jones’

“highly unusual” disclosure of the facts underlying his offense conduct; his

“significant post-arrest improvement” and “scrupulous[]” adherence to the

conditions of release; his “significant improvement” in understanding and

attitude; and his “very special position to receive the most effective counseling

for rehabilitation” at his job site, making it “the very best place” for Mr. Jones to

be counseled. Third, the court characterized Mr. Jones’ entire criminal episode as

an “aberration,” again pointing up the unusualness of the case.

Finally, the record indicates the district considered its decision to depart in

light of the statutory purposes of sentencing. See 18 U.S.C. § 3553(a)(2). Those

purposes include both the need to provide the defendant with the most effective

correctional treatment and the need to protect the public. Id. We have already

discussed the district court’s careful consideration of where Mr. Jones would

receive superior rehabilitation counseling. However, prior to granting Mr. Jones’

motion for a downward departure, the district court also satisfied itself that Mr.

Jones had observed the conditions of his release and that Ms. Begay, his former
9

 The Government expresses concern that sentencing departures based on

multiple factors might lead to unwarranted departures, supported by nothing more

than a “laundry list” of details. This is so, the Government contends, because

every case and offender, examined in sufficient detail, is unique. The

Government’s concern is overstated. While every case or offender is unique, not

every set of circumstances is atypical in a manner consistent with the theory and

structure of the Sentencing Guidelines. Moreover, we are confident the district

courts will continue to depart from the Guidelines based on substantive aspects of

the cases before them, rather than on mere details; departures, whether upward or

downward, will remain the exception rather than the rule in sentencing. Finally, 

should a problem actually arise, it is the role of the Sentencing Commission, not

the courts, to monitor departure decisions and revise the Guidelines as needed. 

See U.S.S.G. Ch. 1, Pt. A, intro. comment. 4(b); Koon , 518 U.S. at 108-09.

-34-

spouse, would enjoy peace of mind if Mr. Jones was placed on probation.

In view of the district court’s special competence in making the refined

comparative factual assessments necessary to determine if a circumstance is

unusual or a characteristic is present to an exceptional degree, see Koon , 518 U.S.

at 98-99, we are not inclined to substitute our judgment for that of the sentencing

court. The district court did not abuse its discretion when it found the

circumstances of this case atypical. The permissible departure factors available to

the district court, in the aggregate, provided a proper basis for departure, and are

supported adequately in the record. 9

When a departure is warranted, as it is here, we finally must determine
-35-

whether the degree of departure from the guideline sentencing range was

reasonable. Id.; see 18 U.S.C. § 3742(e)(3). A sentencing court must explain,

inter alia , why the specific degree of departure granted or imposed is reasonable. 

United States v. Jackson , 921 F.2d 985, 989 (10th Cir. 1990). We consider the

district court’s reasons for imposing a particular sentence in light of the purposes

of sentencing. United States v. Smith , 133 F.3d 737, 752 (10th Cir. 1997), cert.

denied , 118 S. Ct. 2306 (1998); see also 18 U.S.C. 3553(a)(2) (detailing purposes

of sentencing).

In sentencing Mr. Jones, the district court explicitly considered “the

sentencing goals of punishment, deterrence and protection of the public.” The

district court also noted the extent and seriousness of Mr. Jones’ offense conduct. 

The district court departed downward three levels because that was exactly the

extent of downward departure required under the Sentencing Guidelines to “reach

Zone B [of the sentencing table], which would allow a sentence of probation with

stringent conditions,” which the district court determined was “the most

appropriate sentence under the circumstances” of Mr. Jones’ case. The district

court also explicitly considered the magnitude of the departure relative both to

Mr. Jones’ offense level under the Sentencing Guidelines and to guidance provide

by our case law.
-36-

In reviewing the degree of departure in this case, we note that only a

sentence of probation would address the district court’s explicit concern with

maintaining the ongoing, and apparently effective, rehabilitative counseling

relationship Mr. Jones had through his employment at the public health facility,

while simultaneously avoiding the collateral employment consequences of

incarceration. The district court concluded a sentence consisting of probation and

home confinement was “[i]n the interest of justice.”

A sentencing court is charged with the task of imposing a sentence

“sufficient, but not greater than necessary,” to accomplish the goals of sentencing. 

18 U.S.C. 3553(a). Departures are authorized by the Sentencing Guidelines for

the express purpose of addressing unusual circumstances and unusual cases. See

U.S.S.G. Ch. 1, Pt. A, intro. comment 4(b). As the Supreme Court reminds us,

“[i]t has been uniform and constant in the federal judicial tradition for the

sentencing judge to consider every convicted person as an individual and every

case as a unique study in the human failings that sometimes mitigate, sometimes

magnify, the crime and punishment to ensue.” Koon , 518 U.S. at 113. Under the

circumstances of this case, we conclude the district court’s decision to depart

downward three levels was reasonable.
-37-

However, because the district court based its decision to depart on both

permissible and impermissible factors in this case, we must determine whether a

remand is required. See 18 U.S.C. § 3742(f); Koon , 518 U.S. at 113. When a

district court bases a departure, in part, on improper grounds, the reviewing court

should remand the case unless it concludes, on the record as a whole, the district

court “would have imposed the same sentence absent reliance on the invalid

factors.” Koon , 518 U.S. at 113 (citing Williams , 503 U.S. at 203). We so

conclude. Based on our review of the record, we are convinced the district court

would impose the same sentence on remand.

Accordingly, the decision of the district court to depart downward in

sentencing Mr. Jones is AFFIRMED.