* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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 

### August 19, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES of AMERICA, Plaintiff-Appellant, v. MARTIN MAESE, Defendant-Appellee. No. 03-2299 (D.C. No. CR-02-1179-MV)

(D.N.M.)

ORDER AND JUDGMENT *

Before EBEL , Circuit Judge, McWILLIAMS , Senior Circuit Judge, and HENRY , Circuit Judge.

Defendant-Appellee Martin Maese (“Maese”) pled guil ty to misprision of a felony in violation of 18 U.S.C. § 4. At sentencing, the district court departed downward eight levels from the applicable United St ates Sentencing Guidelines (“Guidelines”) offense level after finding Defendan t’s criminal behavior was aberrant, especially in light of his exceptional re cord of community service along the Texas-Mexico border. This resulted in a reduct ion from a Guideline range of- 2 -

21 to 27 months of imprisonment to an actual senten ce of eight days, time served, and one year of supervised release. The Government appeals only the degree of the departure in this case, arguing that the district court reached an unreason able result. Given the deference we owe the district court in this regard, we exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b ) and AFFIRM.
BACKGROUND Martin Maese owns a trucking business called MAM Tr ucking, Inc. Border Patrol agents found 1,837 pounds of marijuana, alon g with 37,000 pounds of used clothing, in one of Maese’s tractor-trailer rigs ata checkpoint in New Mexico. Maese had personally sold the used clothing found i nside the rig and had negotiated the relevant shipping arrangements, ulti mately agreeing to help transport the clothes to Minnesota. After Maese’s trailer was searched and seized at th e checkpoint, a customs agent called Maese and asked him to identify who wa s responsible for concealing the marijuana. Maese told the agent he did not kno w, but in fact he suspected the buyers of the used clothing were involved in the tr ansportation of the marijuana. A grand jury indicted Maese for conspiring to posse ss more than 100 kilograms of marijuana with the intent to distribut e it in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and § 846. Pursuant to a plea agreement, Maese pled- 3 -

guilty to misprision of a felony, in violation of 1 8 U.S.C. § 4, for concealing the name of the responsible shippers. The presentence report (PSR) assigned Maese an offe nse level of 16 and a criminal history category of I. The resulting guid eline range was 21 to 27 months of imprisonment. Defendant filed a motion to depar t based on aberrant behavior. Defendant argued that he had pled guilty to only a “single act of aberrant behavior” by initially concealing the identity of t he clothing buyer when asked who was responsible for the marijuana shipment. He further asserted that such a departure was warranted due to his history of steady employment, his record of significant “charitable endeavors to benefit underp rivileged people,” and the efforts he took to mitigate his offense by “allowin g himself to be debriefed . . . in an effort to fully co-operate with the authorities. ” Maese also presented to the court sixteen letters attesting to Maese’s good character and significant community service. These letters, along with Defendant’s explanation of them, revealed a consist ent history of Defendant and his wife performing what the district court describ ed as “compelling” service along the Texas-Mexico border, from which the distr ict court concluded that “prior to this incident, [Defendant] conducted [his ] life in an extraordinary
manner.”2 Maese was sentenced under the 2002 sentencing guide lines. At that time,

the applicable aberrant behavior policy statement p rovided that “[a] sentence below the applicable guideline range may be warrant ed in an extraordinary case if the defendant’s criminal conduct constituted aberra nt behavior.” U.S.S.G. § 5K2.20 (2002). The commentary further provided: “Aberrant behavior” means a single criminal occurre nce or single criminal transaction that (A) was committed withoutsignificant planning; (B) was of limited duration; and (C) repr esents a marked deviation by the defendant from an otherwise law-ab iding life. . . . (continued...) - 4 - The letters indicate that Defendant regularly loans the use of his warehouse facilities to groups storing building materials, me dical equipment, and other supplies for charity work in the border area. He a lso regularly travels to Mexico to provide basic medical, educational, and translat ion services; solicits donations of medical equipment and food; helps build homes; a nd serves as a leader in his church. In addition, Maese sponsored a high school student with a difficult home situation, promising to match every dollar the stud ent saved for college. After reviewing this evidence, the district court s aid, I have not seen anybody else come before me, in the ten years that I have been on the bench, that has been involved in a ll of the––all of the good works that you have been involved with. . . . I am just surprised at the magnitude of––of the work, the tim e, and the commitment that you have to individuals that have a lot less than you. The court concluded that a downward departure based on aberrant behavior was “more than justified.” 22 (...continued)

In determining whether the court should depart on t he basis of aberrant behavior, the court may consider the defen dant’s (A) mental and emotional conditions; (B) employment record; (C ) record of prior good works; (D) motivation for committing the offen se; and (E) efforts to mitigate the effects of the offense. Id. appl. n.1 & 2. - 5 - The district court reduced Maese from an offense le vel 16 to an offense level 8 and imposed a sentence of eight days, which was time served, and a oneyear period of supervised release. However, the co urt held the sentence in abeyance to allow the prosecution further opportuni ty to review the letters. In a phone conference approximately two weeks later, the government reported that the letters had been confirmed. Then, over the government’s objection, the court affirmed its earlier sentence, stating: the extent of the departure was to allow Mr. Maese to continue this [community service] effort. I wanted to give him c redit for the eight days . . . served, but allow him to continue the wo rk that I’ve never seen anybody do along the border, and that was the reason for the downward departure, and that was the explanation fo r the extent of the downward departure. Nine days later the court filed a written memorandu m opinion and order further setting out its reasoning in this case. In that opinion, the district court noted that, while the Guidelines provide for aberra nt behavior departures, they leave the “decision as to whether and to what exten t departure is3 Both the United States and Defendant Maese filed mo tions with this court

to seal their briefs in this case. The lower court proceedings were sealed below. However, at oral argument before this court, the Go vernment saw no prosecutorial purpose for sealing proceedings in this appeal, and Defendant was ambiguous about any security concerns. Courts have discretion to seal documents “if the pu blic’s right of access is outweighed by competing interests.” United States v. Hickey , 767 F.2d 705, 708 (10th Cir. 1985) (quotation omitted). Neither side has made a showing of any compelling reason to seal these records in this app eal. Therefore, we order the Government and Defendant’s counsel to meet and subm it to this court, within (continued...) - 6 - warranted . . . with the sentencing court on a case -specific basis.” U.S.S.G. § 5K2.0 (2002). As explanation for the chosen degr ee, the court wrote: While not fully understanding what exactly constitu tes a “reasonable methodology hitched to the Sentencing Guidelines,” the Court has seriously studied and considered the basic purposes of criminal punishment as articulated by the Guidelines. See 18 U.S.C. § 3553(a)(2). The Court has weighed the goals of j ust punishment, deterrence, rehabilitation, and uniformity of sente nces against the express contemplation of sentences outside the rang e established by the applicable guidelines. Thus, the court has con sidered Defendant in comparison with the many other defendants senten ced before the Court, and has determined that an eight-level depar ture will incorporate the mitigating factors warranting a sen tence below the guideline range, while properly maintaining the int egrity of the basic purposes of criminal punishment. With an eight-lev el departure, Defendant faces a sentence of eight days (time serv ed) with one year of supervision, which the Court believes satisfies sufficiently the goals of punishment, deterrence and the protection of the public. Given Defendant’s history, the Court does not belie ve that a period of incarceration is necessary or would be equitable under the circumstances. Moreover, Defendant’s sentence will allow the Court to supervise Defendant while also permitting him to continue his much needed work along the very deprived Mexican bo rder. The Government timely filed this appeal. 33 (...continued)

thirty days of the filing date of this order and ju dgment, what portions of these proceedings they wish to redact. We will then cons ider their requests and enter an appropriate order.

4 Because Maese’s offense of conviction, misprision o f a felony, arose after Maese concealed who was responsible for the 1800 ki lograms of marijuana found in his trailer, this court questioned counsel at oral argument regarding the applicability of § 5K2.20’s express prohibition of aberrant behavior departures where the “instant offense of conviction is a serio us drug trafficking offense.” U.S.S.G. § 5K2.20(c)(3) (2002). However, § 5K2.20 defines “serious drug trafficking offense” to mean only certain “controll ed substance offense[s] under title 21, United States Code.” Id. at § 5K2.20, appl. n. 1. Because Defendant’s misprision of a felony under 18 U.S.C. § 4 is clear ly not within title 21 of the United States Code, we agree that an aberrant behav ior departure is not categorically barred here.

5 The parties have not discussed the impact of Bookerin this appeal. - 7 - DISCUSSION Before this court, the Government does not object t o the district court’s determination that a sentence outside the applicabl e guideline range in this case is warranted and consistent with the aberrant behaviordeparture policy statement. 4 Instead, the Government argues only that the degree of the departure—and therefore the length of Maese’s ultimate sentence—i s unreasonable. Maese was sentenced before the Supreme Court decide d United States v. Booker , 125 S.Ct. 738 (2005), which dramatically changed the federal sentencing landscape. 5 However, both before and after Booker , the degree of departure from the applicable guidelines range is reviewed for unr easonableness. Compare 186 Our review is based on the district court’s stated reasons for imposing this

particular sentence, as stated orally at sentencing and, because this is a departure, as committed to a written order. 18 U.S.C. § 3553( c)(2); accord Booker , 125 S.Ct. at 765-66. - 8 - U.S.C. § 3742(e)(3)(C) (pre-Bookerstandard) with Booker , 125 S.Ct. at 766 (replacing § 3742(e) with “unreasonableness” review of all sentences). However, although our standard of review for this i ssue is essentially unchanged, we note that before Bookerthese discretionary departures were considered against a mandatory sentencing scheme, w hile after Bookerthe guidelines are entirely advisory. See Booker , 125 S.Ct. at 765. Our post-Booker cases have noted that Booker ’s reasonableness review is inappropriate for a pre

Bookersentence imposed under the then-mandatory scheme. See, e.g. , United
States v. Souser , 405 F.3d 1162, 1165 (10th Cir. 2005). Nonetheles s, in the context of our review of this particular discretion ary degree-of-departure question, we are informed by, and must take account of, the fact that the district court would have enhanced discretion upon remand af ter Booker . Moreover, even in an exclusively pre-Bookercontext, “we give due deference to the district co urt and will not reverse absent an abuse of discretion. ” United States v. Jones , 332 F.3d 1294, 1300 (10th Cir. 2003) (citation omitted)

. As part of our review, we consider the district cou rt’s stated reasons for choosing this particular sentence 6 in light of the 18 U.S.C. § 3553(a) sentencing7 These same factors govern our “unreasonableness” re view of all

discretionary sentences under the advisory sentenci ng scheme in place after Booker . Booker , 125 S.Ct. 764-65. - 9 - factors, which include “the seriousness of the offe nse, the need for just punishment, deterrence, protection of the public, c orrectional treatment, the sentencing pattern of the Guidelines, the policy st atements contained in the Guidelines, and the need to avoid unwarranted sente ncing disparities.” 7 United States v. Collins , 122 F.3d 1297, 1308-09 (10th Cir. 1997) (quotatio n omitted). Before Booker , we consistently instructed district courts to art iculate the reasons for the specific degree of departure using “any reasonable methodology hitched to the Sentencing Guidelines to justify the reasonableness of the departure, which includes using extrapolation from or analogy to the Guidelines.” Id. at 1309 (quotations omitted). Although the contin ued relevancy of this “hitching” to the guidelines requirement, see United States v. Nunemacher , 362 F.3d 682, 691 (10th Cir. 2004), is uncertain in lig ht of Booker , we note that the precise method of calculating the degree has always been somewhat flexible, requiring in essence only that the “sentencing court should attempt to predict what sentencing range the Sentencing Commission would ha ve established if it had considered the circumstances.” United States v. Co rdova , 337 F.3d 1246, 1249 (10th Cir. 2003).8 In at least two prior cases, we have affirmed depar tures based at least in

part on aberrant behavior without discussing separately any “hitching” requirement where the sentence was specifically jus tified based on the § 3553(a) factors. See United States v. Peña , 930 F.2d 1486, 1494-96 (10th Cir. 1991) (approving departure from 27 to 33 month range to p robation with a condition of community confinement where departure was sufficien tly explained and consistent with § 3553(a) factors); United States v . Jones , 158 F.3d 492, 501, 505-06 (10th Cir. 1998) (approving departure down t hree levels “because that was exactly the extent of downward departure required . . . to reach . . . a sentence of probation with stringent conditions” where “the dis trict court’s explicit concern [was] with maintaining the ongoing, and apparently effective, rehabilitative counseling relationship [the defendant] had through his [current employer]” (quotation omitted)). We have, however, remanded other aberrant behavior departures where the (continued...) - 10 - Moreover, the instruction that a sentencing departu re be hitched to the guidelines themselves simply makes more sense, and is more feasible, in some cases than in others. For example, where the courtis departing on the basis of an over-representation of a defendant’s criminal histo ry, or because the guidelines’s grouping rules fail to account for additional offen se counts, more methodical stair-stepping of the degree of departure is realis tic. E.g. , United States v. Jose-Gonzalez , 291 F.3d 697, 705 (10th Cir. 2002). However, here we have the unique situation of an ab errant behavior departure where the guidelines themselves contemplate the departure will be warranted only under unique circumstances. In such a case, any close “hitching” to the structure of the guidelines would be nearly impossible, if it is even required in any case after Booker

. 8 The sentencing court here carefully considered th e §8 (...continued)

district court gave no reasoning for its chosen deg ree. United States v. Tsosie , 14 F.3d 1438, 1443 (10th Cir. 1994) (remanding for res entencing where district court “did not give any reasons for departing from a rang e of 41-51 months to a four month sentence”); Nunemacher , 362 F.3d at 692 (reversing eight-level departure where district court chose that degree “without exp lanation”). In those cases, we did discuss “hitching” requirements generally; howe ver, because we reversed in the face of no separate reason for the degree of departure, that hitching language is superfluous. - 11 - 3553(a) factors and determined an eight-level departure would best serve the goals of sentencing by providing some supervision a nd punishment of Maese while also enabling him to continue to his community service work. We do note that, at least prior to Booker , an eight-level departure was “remarkable and must be reserved for truly extraord inary cases.” United States v. Goldberg , 295 F.3d 1133, 1142 (10th Cir. 2002). However, e ven while working from within a mandatory sentencing scheme, we have previously affirmed up to seven-level departures. E.g. , Jones , 332 F.3d at 1306-07. In addition, the district court, in considering Maese’s history of service, d id find that Maese presents such an “extraordinary case” as he was unique among all of the defendants the judge had sentenced in the last ten years. Finally, while we have traditionally eschewed any d egree of departure aimed solely at a result-oriented effort to keep th e defendant out of prison, e.g. , Cordova , 295 F.3d at 1249; Goldberg , 295 F.3d at 1139, here the district court carefully explained the chosen degree of the depart ure consistent with the- 12 -

sentencing factors outlined in § 3553(a). The court determined the sentence imposed would “incorporate the mitigating factors w arranting a sentence below the guideline range, while properly maintaining the integrity of the basic purposes of criminal punishment.” Indeed, in assessing this departure in light of § 3553(a), the court concluded that, with this degree of depar ture, the sentence “satisfies sufficiently the goals of punishment, deterrence an d the protection of the public.” Upon our review, we cannot say that the district co urt abused its discretion in this regard or that Maese’s sentence was unreaso nable. Moreover, we simply will not remand for the district court to re-exerci se the discretion it now more certainly has after Booker . Accordingly, we AFFIRM the district court.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge