UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 97-4006

WILBERT H. LAWRENCE, SR.,

Defendant-Appellee.

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 97-4007

JAMES EDWARD JONES,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Raymond A. Jackson, District Judge.

(CR-96-103)

Argued: August 14, 1997

Decided: September 11, 1997

Before RUSSELL and HALL, Circuit Judges, and MICHAEL,

Senior United States District Judge for the Western District of

Virginia, sitting by designation.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Alan Mark Salsbury, Assistant United States Attorney,

Norfolk, Virginia, for Appellant. Patrick Hugh O'Donnell, KAUFMAN & CANOLES, Norfolk, Virginia, for Appellee Lawrence; Robert Bruce Rae, RAE, FORBES & HALL, P.C., Virginia Beach,

Virginia, for Appellee Jones. ON BRIEF: Helen F. Fahey, United

States Attorney, Norfolk, Virginia; William G. Otis, Senior Litigation

Counsel, UNITED STATES ATTORNEY'S OFFICE, Alexandria,

Virginia, for Appellant.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

The United States appeals the sentences imposed on Wilbert Lawrence and James Jones following their convictions for conspiracy to

defraud the United States and making false declarations before a federal grand jury, in violation of 18 U.S.C. #8E8E # 371 and 1623. Because

we conclude that the district court's decisions to depart downward

from the applicable guidelines range were an abuse of discretion, we

vacate the sentences and remand for resentencing.

I.

Defendant Wilbert Lawrence runs a business, Lawrence Landscaping and Maintenance Service, Inc., which employs about 80 persons.

In February 1995, Lawrence Landscaping was preparing to bid on a

janitorial services contract for a Navy compound in Norfolk, Virginia.

The Navy's existing contract was with Alrod Enterprises; it was set

to expire in May 1995.

Lea Ann Fipps was the finance manager of Alrod Enterprises, and

defendant James E. Jones was its director of marketing for schools

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and colleges. Fipps and Jones had apparently grown disenchanted at

Alrod, so they hatched a plot to make sure that Lawrence Landscaping obtained the Navy contract and to then take jobs with Lawrence

Landscaping.

On March 18, 1995, Jose Madry, a Lawrence Landscaping

employee, met with Fipps and Jones at Lawrence Landscaping's

office in Portsmouth. Wilbert Lawrence was present. Fipps gave

Madry a folder with copies of Alrod's actual contract expenditure

sheets for several preceding months. This information was confidential and proprietary to Alrod, and Fipps had no authority to disclose

it. Fipps had placed a Post-ItTM Note on the folder to Madry stating

that the papers "are budget sheets for CINCLANT[the Navy contract]

and will show you actual expenditures. . . . Please keep these sheets

confidential for me! I ask that you get rid of them when we're finished! Thanks!"

Lawrence told Madry to consult with Fipps in preparing Lawrence

Landscaping's bid. Over the next week, Madry worked closely with

Fipps, both over the telephone and in person, to finish the paperwork.

Lawrence was present when Fipps and Madry met in person.

On April 3, 1995, Lawrence submitted Lawrence Landscaping's

bid. There were four other bidders, including Alrod Enterprises. Lawrence Landscaping's bid was the lowest, at approximately $1.35 million. The next highest was just a few thousand more; Alrod's was

much higher, at almost $1.8 million.

Fipps resigned from Alrod that same day. As the conspirators

expected, the Navy contract was awarded to Lawrence Landscaping.

Jones quit Alrod on May 1, and both he and Fipps were hired by Lawrence Landscaping.

These events apparently aroused the government's suspicion, and

a grand jury investigation began. Lawrence, Fipps, and Jones lied to

the grand jury: Lawrence stated that neither he nor any of his employees had received the Alrod cost information, Jones denied being present when Fipps gave the information to Madry, and Fipps denied

giving the information at all.

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Lawrence, Jones, and Fipps were charged with making false declarations to the grand jury and conspiracy to defraud the United States.

Following a jury trial, they were convicted.

The guidelines range for their crimes was 10-16 months.1 Though

Fipps received an active prison sentence, the district court departed

downward for Lawrence and Jones. They were sentenced to probation

and six months' home confinement.

The government appeals the sentences of Lawrence and Jones. We

have jurisdiction under 18 U.S.C. § 3742(b).

II.

A sentencing court may depart from the guidelines only if the case

features an aggravating or mitigating circumstance of a kind, or to a

degree, not adequately taken into consideration by the Sentencing

Commission, and the circumstance is one for which a departure

"should result." United States v. Hummer , 916 F.2d 186, 192 (4th Cir.

1990), cert. denied, 499 U.S. 970 (1991). We review the district

court's decision to depart under an abuse of discretion standard. Koon

v. United States, 116 S.Ct. 2035, 2046-2048 (1996). Each guideline

carves out a "heartland" of typical cases; consequently, if a circumstance is typical for the offense, it provides no basis for a departure.

Id. at 2043. Moreover, reliance on an erroneous legal ground for

departure is always an abuse of discretion, id. at 2045, and departures

on grounds not mentioned in the guidelines should be"highly infrequent." Id. at 2047. With these principles in mind, we turn to the present case.

Why did the district court depart? First, the court was impressed by

the defendants' exemplary lives. Both were 52 years old, had no criminal records, had served in the military, and had superb reputations in

the community. Both had risen from humble beginnings to success in

legitimate business. In the context of these industrious, law-abiding

lives, the court found that the offense conduct was aberrational.

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1 Criminal History Category I and Offense Level 12 yield this range.

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As to Lawrence, the court also took into account that his 80

employees would likely lose their jobs if he were jailed and that his

business would suffer significant collateral consequences (like debarment from government contracts and civil liability) that mitigated the

need for imprisonment.

These circumstances cannot justify a departure. The age of the

defendant is not ordinarily relevant unless he is elderly and infirm.

U.S.S.G. § 5H1.1. The district court suggested that there is a difference between a 22-year-old with no record and a 52-year-old, and the

older man should receive credit for obeying the law longer. This analysis assigns direct relevance to age per se, which is precisely what

§ 5H1.1 forbids. In addition, we note that the defendants' ages are

typical of those charged with similar crimes.

A crime-free life simply places one in Criminal History Category

I. The guidelines recognize no gradations among previously lawabiding defendants. One could argue that there is a great variety of

morality among the non-criminal element of our society, and a sentencing court ought to be able to take a defendant's prior good deeds

into account. The Sentencing Commission fully considered this

option and chose not to adopt it. U.S.S.G. § 5H1.11 (past good deeds,

military service, etc., "not ordinarily relevant"). Though § 5H1.11

leaves the door ever so slightly ajar for a defendant of truly extraordinary past virtue, our precedent establishes that neither Lawrence nor

Jones can open it. See United States v. Rybicki , 96 F.3d 754 (4th Cir.

1996) (defendant was a highly-decorated Vietnam veteran, had saved

an innocent civilian during the My Lai massacre, and had served in

the Secret Service; these good deeds did not warrant a departure);

United States v. McHan, 920 F.2d 244, 247 (4th Cir. 1990) (defendant's work history, family ties and responsibilities, and extensive

contributions to town's economic well-being could not justify downward departure).

The guidelines do countenance downward departure for a "single

act[ ] of aberrant behavior." U.S.S.G., Ch.1, Pt. A, Introduction, ¶

4(d) (emphasis added). "Aberrant" means something more than a person's first offense -- else Criminal History Category I is meaningless

-- and the requirement of a "single" act excludes any scheme involving planning or conduct over a period of time.

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A single act of aberrant behavior suggests "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 defendant may be arguably less

accountable."

United States v. Glick, 946 F.2d 335, 338 (4th Cir. 1991) (quoting

United States v. Carey, 895 F.2d 318, 325 (7th Cir. 1990)). The fraud

took a good deal of planning, and it was followed by false grand jury

testimony many months later. This conduct cannot constitute a "single

act of aberrant behavior."

The "collateral consequences" to Lawrence Landscaping are not at

all atypical in a government contractor fraud case. Indeed, they define

the paradigm: one would expect the government to refuse to contract

with those who have defrauded it. Because these consequences are

typical of the offense, they offer no basis for departure.

Lastly, the court was concerned that Lawrence Landscaping's 80

employees, many of them downtrodden folk who could not easily find

jobs elsewhere, might lose their jobs if Lawrence were in jail. The

government again points out that fraud by government contractors

almost always involves a business, often a small one like Lawrence

Landscaping, and jailing the boss puts the business at peril. There is

nothing atypical here.2 In addition, the government notes that the

guidelines expressly discourage departures on account of the needs of

a defendant's family,3 and asks rhetorically whether we should be

more sympathetic to the displaced worker in the unemployment office

or the displaced child in the orphanage. As for all good rhetorical

questions, the answer is self-evident.

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2 The Third and Sixth Circuits have reached similar conclusions.

United States v. Sharapan, 13 F.3d 781, 784-786 (3rd Cir. 1994); United

States v. Rutana, 932 F.2d 1155, 1158 (6th Cir.), cert. denied, 502 U.S.

907 (1991). But see United States v. Milikowsky , 65 F.3d 4 (2nd Cir.

1995).

3 U.S.S.G. § 5H1.6; see United States v. Weddle, 30 F.3d 532, 540-541

(4th Cir. 1994) (defendant's status as a single parent was "unfortunate"

but not atypical).

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The sentences are vacated, and the cases are remanded with

instructions to resentence the defendants within the prescribed 10-16

months range.

VACATED AND REMANDED

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