United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-3001

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United States of America, * 

* 

Appellant, * 

* Appeal from the United States

v. * District Court for the 

* Southern District of Iowa.

Brian Michael Gall, * 

* 

Appellee. *

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Submitted: February 14, 2006

Filed: May 12, 2006

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Before LOKEN, Chief Judge, BOWMAN and SMITH, Circuit Judges.

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SMITH, Circuit Judge.

Brian Michael Gall pleaded guilty to conspiracy to distribute a mixture and

substance containing methylenedioxymethamphetamine ("MDMA"), a Schedule I

controlled substance, in violation of 21 U.S.C. §§ 841(b)(1)(C) and 846. The district

court imposed a sentence of 36 months' probation and a $100 special assessment. The

government appeals the sentence, arguing that it is unreasonable. We conclude that

Gall's sentence is unreasonable. Accordingly, we remand the case for resentencing.

I. Background

In February or March 2000, Gall entered into an agreement with Luke

Rinderknect and others to distribute MDMA, also known as ecstacy. Initially, Gall
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purchased 100 ecstasy tablets from Rinderknect on six occasions between February

and May 2000. During this period, Gall traveled from Iowa City, Iowa, to Pell, Iowa,

to purchase ecstasy from Rinderknect. 

In May 2000, Rinderknect decided to move to Burbank, California. Before

leaving Iowa, he arranged a meeting with Gall and Theodore Sauerberg to facilitate

the ongoing distribution of ecstasy in his absence. During the meeting, the parties

agreed that Sauerberg would accept delivery of ecstasy from Rinderknect and transfer

the drugs to Gall. When Gall received the drugs from Sauerberg, he distributed them

to other individuals, including Ross Harbison, Jason Story, Brooks Robinson, Mark

Goodding, and Corey Coleman. After receiving payment from his customers, Gall

delivered the drug proceeds to Sauerberg. Sauerberg then delivered the cash to

Rinderknect. 

One month after the initial meeting in Iowa City, Rinderknect mailed a package

containing 5,000 tablets of ecstasy to Sauerberg in Iowa City. Sauerberg then

distributed the ecstasy to Gall in 1,000 tablet increments. Pursuant to the agreement,

Gall distributed the ecstasy to other individuals, including Coleman who purchased

a total of 1,500 to 2,000 tablets. Gall knew his customers were redistributing the

drugs within the community. As the drugs were distributed, Gall paid Sauerberg for

the ecstasy. After Sauerberg collected the $85,000 purchase price from Gall, he

contacted Rinderknect who flew to Iowa and obtained the cash.

Approximately one to two months later, Rinderknect mailed a second package

containing 5,000 tablets of ecstasy to Sauerberg in Iowa City. Again, Sauerberg

distributed the ecstasy to Gall in 1,000 tablet increments. After distributing the

ecstasy, Gall remitted $85,000 to Sauerberg, who delivered the money to

Rinderknect. 

 In September 2000, Gall decided to leave the drug conspiracy. Rinderknect

traveled to Iowa City and met with Gall. Gall told Rinderknect that he was getting out
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of the drug business over concerns that Sauerberg was telling too many people about

their ecstasy distribution business. Rinderknect sold no more ecstasy to Gall as he

requested. According to Gall, he stopped selling ecstasy in August 2000 when he

moved in with a new roommate and started studying for his major at the University

of Iowa. Goodding testified that Gall stopped selling ecstasy in August 2000 because

he did not like the trouble of having to deal with people. Gall estimated that he made

$30,000 while a member of the ecstasy conspiracy. 

After college graduation in 2002, Gall moved to Mesa, Arizona. Federal agents

approached Gall in Arizona, requesting to speak with him about his involvement with

ecstasy sales while living in Iowa. Unknown to Gall, law enforcement had already

arrested Rinderknect and Sauerberg, who had implicated Gall. Gall admitted to the

agents his involvement in the conspiracy. In 2004, Gall was charged in an indictment

with conspiracy to distribute MDMA. Gall made arrangements to return to Iowa from

his home in Winter Park, Colorado, when he learned there was a federal arrest

warrant issued for him. Upon his return to Iowa, he turned himself in to federal

authorities. 

Because Gall withdrew from the conspiracy in September 2000, the parties

stipulated that the November 1, 1999 edition of the United States Sentencing

Guidelines applied to Gall's offense conduct. The presentence report ("PSR")

assigned Gall responsibility for 10,000 tablets of ecstasy. The parties stipulated that

for the purpose of calculating a Guidelines sentence, Gall would be held accountable

for 2,500 grams of ecstasy, or 10,000 tablets, which under the 1999 Guidelines equals

87.5 kilograms of marijuana. Pursuant to U.S.S.G. § 2D1.1, 87.5 kilograms of

marijuana placed Gall at a base offense level of 24. Because he qualified for the

safety valve pursuant to U.S.S.G. § 5C1.2, Gall's offense level was reduced by two

levels to 22. An additional three-level reduction for acceptance of responsibility

resulted in a total offense level of 19. 
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Gall's criminal history included a conviction for failure to maintain control of

his vehicle and underage alcohol possession in March 1997. As part of his sentence,

Gall was ordered to pay a fine and undergo treatment for alcohol abuse. No criminal

history points were assessed for this conviction pursuant to U.S.S.G. § 4A1.2(c). Gall

was also convicted in December 1997 of improper storage of a firearm on a public

highway. This conviction added one criminal history point pursuant to U.S.S.G. §

4A1.1(c). Finally, in March 2000, Gall was convicted of possession of marijuana for

which he received a deferred judgment; no criminal history points were assigned to

this conviction. With a Category I criminal history, Gall's advisory Guidelines range

was 30 to 37 months' imprisonment. 

At Gall's sentencing hearing, his father, Tom Gall, testified that he had

observed a change in his son's life and that his son had started his own business and

was doing well. He added that contractors rely on his son for expertise in installing

windows. Finally, he commented that his family would be devastated if his son went

to jail.

Gall's mother, Vicki Gall, testified that she believed her son realizes that he

made a "stupid mistake" and that he has really learned from it. She added that during

the last year, her son has become more mature. She concluded by questioning the

value of incarcerating someone who had already made positive changes in his life.

Gall's counsel requested a sentence of probation, asserting that Gall was not in

need of rehabilitation because he had already done an admirable job of rehabilitating

himself. His counsel noted letters of support sent to the district court sent by Gall's

friends and family. In addition, his counsel argued that a felony conviction is a severe

consequence that would follow Gall throughout his life. Gall's counsel distinguished

Gall from the codefendants who received prison sentences by noting Gall's

withdrawal from the conspiracy and his assumption of a crime-free lifestyle. Counsel

concluded his remarks by reminding the court that Gall's family, along with two
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contract employees, "work pretty much exclusively for Mr. Gall" and were depending

on Gall. 

The government requested a sentence of 30 months' imprisonment, a sentence

at the low end of the advisory Guidelines range. The government argued this sentence

was appropriate, considering Gall already received a significant benefit by being

sentenced under the 1999 Guidelines. In 1999, the Guidelines stated that 1 gram of

ecstasy equated to 35 grams of marijuana. The current Guidelines equate 1 gram of

ecstasy to 500 grams of marijuana, which is 14 times the conversion quantity that

Gall faced. In addition, Gall's recommended sentence only included drug quantities

for the period of his participation in the conspiracy not foreseeable drug quantities

during the entire conspiracy. Also, Gall benefitted from a two-level safety-valve

reduction. Finally, the government argued that a 30-month sentence was appropriate

because the other coconspirators also received prison sentences. 

Before announcing its sentence, the district court denied a defense request to

depart from the advisory Guidelines range based upon aberrant behavior and

extraordinary acceptance of responsibility. The court concluded that departure

requests for remorse, post-offense rehabilitation, and voluntary cessation of criminal

activity were best considered within the confines of 18 U.S.C. § 3553(a). 

After considering the Guidelines, the district court stated, both at the hearing

and in its subsequent sentencing memorandum, that it was going to impose a sentence

other than that contemplated by the Guidelines and sentenced Gall to 36 months'

probation. In imposing the sentence of probation, the court stated that it had

considered the § 3553(a) factors. Particularly, the court stated that it took into account

"the defendant's voluntary and explicit withdrawal from the conspiracy in September

of 2000; the defendant's exemplary behavior while on bond; the support manifested

by family and friends who have attested to the defendant's character; the lack of

criminal history, especially a complete lack of any violent criminal history; and the

immaturity of the defendant." 
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Regarding the nature and circumstances of the offense under § 3553(a)(1), the

district court noted that Gall had withdrawn from the conspiracy, the offense did not

involve violence or firearms, and the offense level was derived solely on the basis of

drug amounts. 

As to the character of the defendant, the court stated that all of Gall's criminal

conduct, including the present offense, occurred when he was 21 years old or

younger, citing the Supreme Court's analysis in Roper v. Simmons, 543 U.S. 551, 569

(2005), that studies indicate that adolescents are less culpable than adults for their

actions and "a lack of maturity and an underdeveloped sense of responsibility are

found in youth more often than in adults and are more understandable among the

young. These qualitites often result in impetuous and ill-considered actions and

decisions." While acknowledging the decision's limited applicability to those who

commit a death-eligible crime before the age of 18, the district court concluded that

a National Institute of Health Study "confirms there is no bold line demarcating at

what age full maturity is reached." Therefore, the court determined that Gall's age at

the time of the offense should be considered in "discovering the overall

characteristics of the defendant." 

In addition, the court noted Gall's "exemplary" post-offense behavior, including

earning his college degree and owning his own business. The court referred to the

correspondence it had received, which described Gall as "reliable, honest, friendly,

and polite" with "superior work ethic and valuable resources." The district court

stated that it could "only conclude from the defendant's post-offense conduct that he

has, in fact, learned from his experience with the United States criminal justice

system and admirably moved to secure a better future for himself." 

Finally, under § 3553(a)(2)(A), the court considered the need for the sentence

imposed to reflect the seriousness of the offense. The court stated that the best way

to accomplish this goal was to impose a term of probation because "[a]ny term of

imprisonment in this case would be counter effective by depriving society of the
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contributions of the Defendant who, the Court has found, understands the

consequences of his criminal conduct and is doing everything in his power to forge

a new life." 

The district court sentenced Gall to a term of 36 months' probation as a

reflection of "the seriousness of joining a conspiracy to distribute MDMA or

Ecstacy." Recognizing that probation is not recommended when the Guidelines range

falls outside of Zone A, the district court concluded that probation was nevertheless

appropriate because Gall's offense level was based "solely on drug quantity." The

court stated, "While not denigrating the seriousness of the offense conduct in this

case, the Court finds the offense level based solely upon drug quantity does not

adequately reflect the offense conduct." 

The government now appeals, arguing that the sentence is unreasonable in light

of all of the § 3553(a) factors because the district court (1) gave unreasonable weight

to Gall's withdrawal from the conspiracy; (2) improperly relied on studies showing

that adolescents are less culpable for their actions than adults; (3) gave unreasonable

weight to Gall's post-offense rehabilitation and behavior while on pre-trial release;

(4) failed to acknowledge that Gall's lack of criminal history was accounted for in the

Guidelines calculation; (5) incorrectly concluded that a sentence of probation reflects

the seriousness of the offense; (6) did not consider whether a sentence of probation

affords adequate deterrence to future criminal conduct; and (7) did not consider

whether a sentence of probation creates unwarranted sentencing disparities among

defendants with similar records who committed similar crimes. 

II. Discussion

"Under Booker, the sentencing guidelines are no longer a mandatory regime.

Instead, the district court must take the advisory guidelines into account together with

other sentencing factors enumerated in 18 U.S.C. § 3553(a)." United States v.

Claiborne, 439 F.3d 479, 480 (8th Cir. 2006). To determine the proper sentence, "the

district court must first calculate the applicable guidelines sentencing range." Id.
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After calculating the advisory Guidelines range, the district court "may then impose

a sentence outside the range in order to 'tailor the sentence in light of the other

statutory concerns' in § 3553(a)." Id. (quoting United States v. Booker, 543 U.S. 220,

245–46 (2005)). 

In the present case, neither party challenges the district court's determination

of the Guidelines sentencing range; therefore, "we review the resulting sentence for

reasonableness, a standard akin to our traditional review for abuse of discretion." Id.

at 481. 

"We have determined that a sentence imposed within the guidelines range is

presumptively reasonable." United States v. Myers, 439 F.3d 415, 417 (8th Cir. 2006).

"While it does not follow that a sentence outside the guidelines range is

unreasonable," a sentence outside of the Guidelines range "'may be unreasonable if

a sentencing court fails to consider a relevant factor that should have received

significant weight, gives significant weight to an improper factor or irrelevant factor,

or considers only appropriate factors but nevertheless commits a clear error of

judgment by arriving at a sentence that lies outside the limited range of choice

dictated by the facts of the case.'" Id. at 417–18 (quoting United States v. Haack, 403

F.3d 997, 1004 (8th Cir. 2005).

The district court must clearly explain why it imposed a sentence outside of the

Guidelines range. United States v. Gatewood, 438 F.3d 894, 896 (8th Cir. 2006).

While we do not require "a rote recitation of each § 3553(a) factor," the district court

should explain why it varied from the Guidelines and the extent of the variance. Id.

"'Sentences varying from the guidelines range . . . are reasonable so long as the judge

offers appropriate justification under the factors specified in 18 U.S.C. 3553(a). How

compelling that justification must be is proportional to the extent of the difference

between the advisory range and the sentence imposed.'" Claiborne, 439 F.3d. at 481

(quoting United States v. Johnson, 427 F.3d 423, 426–27 (7th Cir. 2005)). Therefore,

"the farther the district court varies from the presumptively reasonable guidelines
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range, the more compelling the justification based on the § 3553(a) factors must be."

United States v. McMannus, 436 F.3d 871, 874 (8th Cir. 2006). 

Here, the district court imposed a sentence of probation when the bottom of

Gall's advisory Guidelines range was 30 months' incarceration. In essence, this

amounts to a 100% downward variance, as Gall will not serve any prison time. Such

a variance is extraordinary. "An extraordinary reduction must be supported by

extraordinary circumstances." United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir.

2005); see also Claiborne, 439 F.3d at 481 (holding that the district court's imposition

of a 15-month sentence when the Guidelines range was 37 to 46 months'

imprisonment, a 60% downward variance, was unreasonable). We conclude that this

extraordinary variance is not supported by extraordinary justifications. 

First, the district court gave too much weight to Gall's withdrawal from the

conspiracy because the court failed to acknowledge the significant benefit Gall

received from being subject to the 1999 Guidelines. Gall was held responsible for

10,000 tablets of MDMA at a conversion rate of 1 gram of MDMA to 35 grams of

marijuana, resulting in a base offense level of 24. Under the current Guidelines,

however, Gall's base offense level would have been 32 because 1 gram of MDMA

equates to 500 grams of marijuana. In addition, Gall was not held accountable for

quantities of ecstasy distributed by other members of the conspiracy subsequent to his

withdrawal. Under U.S.S.G. § 1B1.3, Gall could have been held responsible for other

members' reasonably foreseeable acts. United States v. Smith, 240 F.3d 732, 737 (8th

Cir. 2001) ("A defendant convicted of conspiracy is properly held accountable for all

reasonably foreseeable acts and omissions of any co-conspirator taken in furtherance

of the conspiracy.").

Second, the district court gave significant weight to an improper factor when

it relied on general studies showing persons under the age of 18 display a lack of

maturity, which often results in impetuous and ill-considered actions. This general

study, however, does not explain how Gall's specific behavior in the instant case was
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impetuous or ill-considered. Furthermore, Gall sold ecstacy as a 21-year-old adult,

not as an adolescent.

Third, the district court did not properly weigh the seriousness of Gall's

offense. While the district court observed that Gall's offense level did not adequately

reflect the offense conduct because it was based "solely on drug quantity," the district

court ignored the serious health risks ecstasy poses. Ecstasy causes increased body

temperature, which can lead to liver, kidney, and cardiovascular system failure;

increases in heart rate and blood pressure; and severe anxiety and depression, which

can occur days or weeks after taking ecstasy. National Institute on Drug Abuse,

(2003), at www.nida.nih.gov/infofax/ecstasy.html (last visited March 31, 2006). Gall

sold 10,000 ecstasy pills during the time he participated in the drug conspiracy. The

potential harm posed by this quantity of illegal drugs should not be lightly

discounted. 

Fourth, the record does not show that the district court considered whether a

sentence of probation would result in unwarranted sentencing disparities. See 18

U.S.C. § 3553(a)(6). "Congress has made avoiding unwarranted disparity a legislative

priority." United States v. Lazenby, 439 F.3d 928, 933 (8th Cir. 2006). Therefore, we

find that the district court failed to consider a relevant factor that should have

received significant weight. 

Finally, the district court placed too much emphasis on Gall's post-offense

rehabilitation. Even if Gall's rehabilitation "is dramatic and hopefully permanent," a

sentence of probation for participating as a middleman in a conspiracy distributing

10,000 tablets of ecstasy with a personal profit of $30,000 "'lies outside the limited

range of choice dictated by the facts of the case.'" Id. (quoting Haack, 403 F.3d at

1004).
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III. Conclusion

Accordingly, the judgment of the district court is reversed and the case is

remanded to the district court for resentencing.

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