* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, or coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 12 2005 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellant,

v. STACIE K. CRASS, Defendant-Appellee. No. 03-3241 (D.C. No. 02-CR-10182-01-JTM)

(Kansas)



### ORDER AND JUDGMENT *

Before SEYMOUR , Circuit Judge, PORFILIO, Senior Circuit Judge, and MURPHY , Circuit Judge.
Stacie Crass pled guilty to one count of illegal us e of a communication device to facilitate the commission of a felony in violation of 21 U.S.C. § 843(b). Based on a total offense level of 29 and criminal h istory category of II, Ms. Crass’ sentencing guidelines range was 97 to 121 mo nths of imprisonment. Because the statutory maximum penalty for a violati on of 21 U.S.C. § 843(b) is-2-

four years, Ms. Crass’ guideline range was capped at forty-eight months pursuant to U.S.S.G. § 5G1.1(a). The district court sentenc ed Ms. Crass to twenty-one months incarceration, departing downward from the g uidelines sentence on two grounds: (1) exceptional post-offense rehabilitatio n and (2) diminished capacity as a result of her unmedicated bi-polar condition. The government appeals. We reverse in part and remand for resentencing. After noticing some suspicious activity involving aJeep and a Pontiac, police officers stopped the Jeep, which was driven by Ms. Crass, for traffic violations. Jonas Crass, her husband, was a passen ger in the Jeep. After citing Ms. Crass for traffic infractions, officers asked f or consent to search the vehicle. When Ms. Crass refused, the officers summoned a dru g dog, which alerted to the outside of the Jeep. Mr. and Ms. Crass were placed in custody and transported to police headquarters. During a police interview, Mr . Crass admitted to selling two pounds of marijuana to Robert Rotramel the evening of the traffic stop. The Pontiac was located later and two pounds of marijua na were found inside. Ms. Crass confirmed her husband’s version of events . She also informed the police there was approximately one-half pound o f methamphetamine at her house, left there by her husband’s friend, Robert M ontoya, who commonly sold methamphetamine. The officers obtained a waiver to search the Crasses’ home and discovered 67.04 grams of actual methamphetamin e on the premises. Ms.1 Ms. Crass argued in a F ED
. R. A PP
. P. 28(j) letter that we should conduct a

reasonableness review pursuant to United States v. Booker , 125 S. Ct. 738 (2005), and affirm her sentence. This court does not consi der arguments raised for the first time in 28(j) letters. See United States v. Sanchez-Cruz , 392 F.3d 1196, 1201 (10th Cir. 2004) (declining to consider Blakelyargument first raised in a 28(j) letter); United States v. Lindsey , 389 F.3d 1334, 1335 n.1 (10th Cir. 2004) (same).

-3- Crass subsequently pled guilty to one count of ille gal use of a communication device to facilitate the commission of a felony. I n sentencing her, the district court departed downward to a sentence of twenty-one months incarceration. Prior to the Supreme Court’s decision in United States v. Booker , 125 S. Ct. 738 (2005), sentencing courts could depart from the applicable guideline range in criminal cases if “the court [found] that there exi st[ed] an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formu lating the guidelines.” 18 U.S.C. § 3553(b)(1). In a pre- Bookerreview of a sentencing departure, we apply the four steps outlined in United States v. Jones , 332 F.3d 1294, 1299-1300 (10th Cir. 2003). 1 First, we ascertain whether the court set forth i ts specific reasons for departure. 18 U.S.C. § 3742(e)(3)(A); id . § 3553(c)(2). Second, we consider, de

novo , “whether the factors the district court relied up on advance the objectives set forth in section 3553(a)(2)” and ensure that the co urt’s reliance on those factors did not violate any specific prohibition in the gui delines. Jones , 332 F.3d at 1299. Third, we determine, de novo , whether the factors the district court relied-4-

upon are “authorized under section 3553(b)” and “ju stified by the facts of the
case.” Id . at 1299-1300 (citations omitted). Finally, we re view the degree of departure for reasonableness and do not reverse abs ent an abuse of discretion. Id

. at 1300. In its Statement of Reasons, the district court con cluded that Ms. Crass’ conduct fell sufficiently outside the applicable gu ideline heartland to warrant downward departures. The court satisfied the requi rement of setting forth its reasons for departure with the following specific r easons: (1) Ms. Crass’ “exceptional rehabilitative efforts” and (2) her “d iminished capacity at the time the offense was committed.” Aplt. App., vol. I at 115. The government does not contend the factors relied on by the district courtwould never be valid grounds for a departure. It asserts instead that the facto rs are not justified by the record in this case. We agree insofar as the departure was b ased on exceptional postoffense rehabilitative efforts. The government points out that “post-offense rehabi litation is accounted for in the context of an acceptance of responsibility a djustment under U.S.S.G. § 3E1.1, comment. (n.1(g)), and thus may not serve as a basis for departure unless it is present to an exceptional degree.” United States v. Benally , 215 F.3d 1068, 1075 (10th Cir. 2000); see also United States v. Whitaker , 152 F.3d 1238, 1240 (10th Cir. 1998) (“post-offense rehabilitation can only be an appropriate ground-5-

for downward departure if the efforts are of a magn itude that the defendant’s situation cannot be considered typical of those whe re an acceptance of responsibility adjustment is granted”). Thus, we m ust determine whether the record supports the court’s conclusion that Ms. Cra ss’ rehabilitation was sufficiently exceptional to warrant a departure fro m the mandatory guidelines. In assessing Ms. Crass’ post-offense rehabilitation , the district court relied on two reports, one from the Women’s Recovery Cente r of Central Kansas and one from the Wichita Area Sexuality Assault Center. The former, entitled “Footprints Program Progress Report,” detailed thatMs. Crass had “been using some type of substance for approximately twenty yea rs, with only brief periods of abstinence.” Aplt. App., vol. I at 51. Ms. Crass’ counselor noted that she attends weekly group counseling and at least three weekly twelve-step meetings. Id . The report stated that Ms. Crass was becoming less self -centered, improving her parenting skills, gaining empathy for her peers, an d working on avoiding manipulative patterns. Id . at 51-52. The report concluded: “If [Ms. Crass] continues to make recovery a priority and work on h er core issues, she has a good chance of succeeding in recovery. Her prognosis is currently Fair to Guarded.” Id . at 52. The Wichita Area Sexual Assault Center le tter added that Ms. Crass “has been attending support group and one-on-one cr isis counseling sessions.” Id

. at 53. In support group, she “has participated and provided valuable insight to-6-

members. In one-on-one crisis counseling sessions, she is making many discoveries about the link between addiction and se xual violence.” Id

. The district court’s decision to depart downward on Ms. Crass’ sentence was based on her “complete detoxification and her r ecovery from continuing drug addiction,” id . at 100, and, indeed, Ms. Crass’ post-offense behavior has been laudable. The government, however, emphasizes thatMs. Crass’ participation in the substance abuse program was ordered as a condit ion of her pre-trial release. Id . at 24. Moreover, Ms. Crass was instructed to “re frain from any use of alcohol” or other controlled substances. Id . She was subject to random drug and alcohol testing and screening, and she was told that: [a] violation of any of [her] conditions of release may result in the immediate issuance of a warrant for [her] arrest, arevocation of release, an order of detention, and a prosecution for contempt of court and could result in a term of imprisonment, a fine, or both. Id . at 25. The Women’s Recovery Center of Central Ka nsas’ “Client Guidelines and Behavioral Expectations” required all clients t o “be completely drug free during treatment . . . Use of alcohol or other drug s of any kind is prohibited.” Id

. at 11. A violation of the Women’s Recovery Center guidelines would “result in an Administrative Discharge.” Id

. In sum, Ms. Crass was released on the condition that she participate in an inpatient or outpatient substance abuse therapy and counseling program and be subject to random drug and alcohol screening. She has certainly complied with2 Compare United States v. Kapitzke , 130 F.3d 820, 823-24 (8th Cir. 1997)

(approving a downward departure for extraordinary p ost-offense rehabilitation where defendant had voluntarily entered sex offende r and chemical dependency treatment before he was aware that federal charges would be filed against him; “attended some type of therapy or support group alm ost every night”; “received excellent progress reports”; submitted reports thatthe director of the sex offender treatment plan was “extremely impressed” with his e fforts and believed that defendant had “a high probability of success”; subm itted reports that his chemical dependency counselor “had never seen a client work harder” than defendant in seven years and that defendant’s prognosis was “very good”; and submitted a report from his physician that he had “shown an ext raordinary desire to recover from all of his addictions, as well as an ‘extraord inary willingness to do whatever necessary to achieve that end’”). -7- the formal requirements of the program; she has att ended her family and group counseling sessions and she has remained drug free and sober. Nonetheless, Ms. Crass’s post-arrest behavior reflects little more t han her compliance with the conditions of her release and the requirements of t he Women’s Recovery Center. See Benally , 215 F.3d at 1076, 1077 (reversing downward depart ure where defendant’s “post-arrest sobriety reflects little m ore than his compliance with the conditions of his release to a half-way house”). T his was simply not enough under the mandatory guidelines regime which existed pre- Booker

. 2 The acceptance of responsibility guideline, U.S.S.G. § 3E1.1 cmt. n.1(g), specifically contemplates an adjustment for post-offense rehabil itative effort, and Ms. Crass received that adjustment. Absent “additional evide nce or explanation as to why [Ms. Crass’] rehabilitative efforts went beyond that contemplated by U.S.S.G. § 3E1.1,” id ., we must hold that the district court’s three-lev el downward departure-8-

for her post-arrest behavior was not justified by t he facts of this case. Because we reverse on the basis of the post-offense rehabilitation departure and must remand for resentencing in any event, we n eed not decide whether the district court’s departure on the basis of diminish ed capacity was warranted. See United States v. Cano-Silva , No. 03-4059, 03-4108, 2005 WL 698983, at *6 (10th Cir. Mar. 28, 2005) (reversing on one ground and remanding for resentencing in light of Bookerwithout addressing second ground). Ms. Crass’ resentencing proceeding should be conducted pursuant to the Supreme Court’s decision in Booker . The district court may determine anew whether Ms . Crass was entitled to a downward departure under the guid elines and then “take account of the Guidelines together with other sentencing go als” in imposing her sentence. Booker , 125 S. Ct. at 764; see also Cano-Silva , 2005 WL 698983, at *6.
We REVERSE the decision to depart downward based on extraordin ary post-arrest rehabilitation and REMAND to the district court with orders to vacate the sentence and resentence Ms. Crass consistent wi th Booker

. ENTERED FOR THE COURT
Stephanie K. Seymour Circuit Judge