UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 98-4502

ANTHONY EATON,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

J. Frederick Motz, Chief District Judge.

(CR-97-454-JFM)

Argued: December 3, 1998

Decided: February 2, 1999

Before MURNAGHAN and MICHAEL, Circuit Judges, and

HERLONG, United States District Judge for the

District of South Carolina, sitting by designation.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Richard Charles Kay, Assistant United States Attorney,

Baltimore, Maryland, for Appellant. Herbert Better, ZUCKERMAN,

SPAEDER, GOLDSTEIN, TAYLOR & BETTER, L.L.P., Baltimore,

Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia, United

States Attorney, Baltimore, Maryland, for Appellant. Zoe M. Gillen,

ZUCKERMAN, SPAEDER, GOLDSTEIN, TAYLOR & BETTER,

L.L.P., Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Before us is the government's appeal from the district court's decision to depart downward from the Sentencing Guidelines on the basis

of "aberrant behavior." The behavior in question was comprised of

two trips to Jamaica over a three-week period.1 Other than those criminal episodes, the defendant has been a hard working, model citizen.

The government contends that the district court's reliance on the "aberrant behavior" departure in light of Eaton's two separate trips is

erroneous because it directly conflicts with our precedent.

I.

Anthony Eaton flew from Baltimore to Jamaica on October 10,

1997, carrying an unknown amount of money with him. Willie Fryson, whose nickname is "Card," gave Eaton the money. Two days

later, Eaton returned to Baltimore with unknown quantities of

cocaine. The government estimates that, based on the size and weight

of the package, Eaton was carrying approximately 500 grams to two

kilograms of cocaine.

Approximately three weeks later, on October 31, Eaton boarded

another flight to Jamaica, this time carrying $20,000. However, he

was arrested by U.S. Customs agents. He never advised Customs that

he was carrying such a large amount of money.

The government charged Eaton with conspiracy to import cocaine

in violation of 21 U.S.C. § 963. In January 1998, Eaton entered into

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1 Actually, Eaton made one round trip from Baltimore to Jamaica

between October 10-12, 1997. When he attempted to make a second trip

to Jamaica three weeks later (October 31), he was arrested. Thus, Eaton's

conduct consists of three separate acts on three separate days.

 2
a plea agreement in which he agreed to cooperate with the government.

At the sentencing hearing held on May 12, 1998, the government

moved for a downward departure of two levels under U.S.S.G.

§ 5K1.1 and 18 U.S.C. § 3553(e) for substantial assistance. Eaton

requested a downward departure on grounds of aberrant behavior. The

district court granted Eaton's request, stating that it did not "think that

the fact that somebody sins twice in a short period of time . . . is really

legally distinct from somebody doing something just once." It then

departed eight levels from level eighteen to level ten. The court

declined to base the departure on cooperation.

II.

We review a district court's decision to depart from the Sentencing

Guidelines for abuse of discretion. See Koon v. United States, 518

U.S. 81, 91 (1996). Departures based on erroneous conclusions of law

are considered an abuse of discretion. See id. at 100.

The government argues that the district court's conclusion that the

defendant's three acts on three separate days constituted a single act

of aberrant behavior is directly contrary to our prior holding in United

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

addressed an appeal by the government from a sentencing departure

for aberrant behavior where the defendant had mailed five documents

containing confidential company information on five separate days

over a ten-week period. See id. at 337. Because the activities were

part of the same criminal enterprise, the district court concluded that

they amounted to a "single" aberrant act. See id.

We rejected that reasoning, however, concluding that Glick's "extensive planning, number of actions involved, and length of time over

which [he] planned and perpetrated his offense" demonstrated that the

case was not one involving aberrant behavior. In noting that aberrant

behavior means more than first offense, we explained that our inter-

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2 The district court expressly chose not to depart on the basis of cooperation, a departure that even the government acknowledges would be

appropriate.

 3
pretation of the departure for single acts of aberrant behavior contemplated "`a spontaneous and seemingly thoughtless act rather than one

which was the result of substantial planning . . . .'" Id. at 338 (citation

omitted). Finally, we confined the term "single act" to its literal meaning, rather than interpreting the phrase to encompass "a series of

actions calculated to further criminal misconduct." Id. at n* (rejecting

the Ninth Circuit's approach to the definition of aberrant behavior).

Using the analysis set forth in Glick, the district court's departure

based on aberrant behavior in the instant case cannot stand. Even if

Eaton did not plan the entire criminal enterprise, as he claims, he did

take money into Jamaica and return to Baltimore with a large quantity

of cocaine. He then attempted to return to Jamaica with another large

sum of money. That necessarily involved some planning on his part.

He committed three criminal acts, on three separate days (October 10,

12 and 31, 1997).3 Finally, Eaton's criminal activities spanned three

weeks. Therefore, for the same reasons that Glick's conduct was not

aberrant, Eaton's conduct is not aberrant.

Eaton's arguments to the contrary are not persuasive. He first contends that we must revisit Glick in light of Koon v. United States, 516

U.S. 81, 91 (1996), because Koon created an abuse of discretion standard for departures from the Guidelines and created virtually limitless

avenues for departures, including departures for multiple acts of aberrant behavior. That argument is misplaced. Eaton is correct in asserting that Koon creates an abuse of discretion standard for departures

from the Guidelines. See id. However, Koon also recognized that

errors of law are abuses of discretion. See id. at 100.

Moreover, Eaton misunderstands what the district court did. The

district court did not create a new departure for multiple acts of aberrant behavior; rather, it stated that the multiple acts committed by

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3 Eaton and the government dispute the severity of the crime with

which he could be charged for transporting the money into Jamaica. The

government claims that he violated 18 U.S.C. § 1956(a) (1996), a money

laundering statute. By contrast, Eaton claims that he only violated 31

U.S.C. § 5316 (1996), a statute requiring the reporting of the transportation out of the country of sums in excess of $5,000. In any event, his

activity was criminal.

 4
Eaton were legally equivalent to the single act contemplated by the

Guidelines. See App. at 29 ("I don't think that the fact that somebody

sins twice in a short period of time, commits two different acts of sin,

if that is what it be, is really legally distinct from somebody doing

something just once."). Thus, the Supreme Court's recognition in

Koon of a district court's discretionary authority to depart from the

Guidelines on bases not set forth therein simply is not implicated in

the instant case. On the other hand, Glick, which defines a "single act

of aberrant behavior" in our circuit, is implicated and controls.

Eaton's other arguments are similarly unfounded. He argues that

our definition of single act is "absurd," and points out that both the

First and Eighth Circuits have rejected our definition of a single act

of aberrant behavior. See United States v. Kalb , 105 F.3d 426, 429-30

(8th Cir. 1997); United States v. Grandmaison , 77 F.3d 555, 563 (1st

Cir. 1996). However, a closer look at Kalb reveals that the court

merely concluded that departures for aberrant behavior need not be

confined to "single acts." See id. at 429 n.2 ("The inquiry after Koon

is whether any other kind of `aberrant behavior' may ever warrant a

departure.").4 Grandmaison expanded the aberrational behavior

departure to an extent that we expressly rejected in Glick. See

Grandmaison, 77 F.3d at 563. Therefore, neither case helps Eaton.

Eaton also argues that: (1) the reference in the Guidelines to "single

acts of aberrant behavior," see U.S.S.G., Ch. 1, Pt. A, 4(d) (1997),

makes no mention of the concepts of "spontaneity" or "thoughtlessness"; and (2) such a restrictive view of aberrant acts essentially guarantees that no one could ever meet the test.

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4 Eaton and the government dispute whether aberrant behavior is a neutral factor (i.e., neither encouraged nor discouraged) or an encouraged

factor. While neutral factors -- factors the Commission expressly allow

but do not assign value to -- are to be employed only where they exist

to such an extent that the case is no longer in the heartland, see United

States v. Brock, 108 F.3d 31, 35 (4th Cir. 1997), encouraged factors may

freely be considered because the only problem was that the Commission

simply did not consider them. See Koon, 518 U.S. at 94. Based on the

Commission's statement that it "has not dealt with the single acts of

aberrant behavior," see U.S.S.G. § 14(d), it appears that it is an encouraged factor, because the guideline acknowledges that it has not adequately addressed the issue.

 5
While it is true that the Guidelines do not mention the words "spontaneous" or "thoughtless," it is also true that the Guidelines provide

no definition or guidance for interpreting the phrase "single act of

aberrant behavior." The Seventh Circuit, in United States v. Carey,

895 F.2d 318, 325 (7th Cir. 1990), reasoned that"spontaneous" and

"thoughtless" acts more aptly fit the definition of "aberrational behavior" because such acts are more likely to be atypical or "aberrant" than

are acts that are "the result of substantial planning." Id. We agreed

with that assessment in Glick, as that view properly takes into account

the concept that "aberrant behavior" means more than simply that it

is the defendant's first offense. See id. (noting that the Guidelines

already considered the treatment of first offenders in 28 U.S.C.

§ 994(j)). Once a defendant engages in an ongoing criminal enterprise

that requires some planning, as Eaton has, the behavior is less aberrant.

Moreover, the departure is not completely unavailable to a defendant. The Carey court stated that the type of behavior qualifying for

a departure on the basis of aberrant behavior resembles that of Robert

Russell in United States v. Russell, 870 F.2d 18, 19-20 (1st Cir. 1989).

In that case, the defendant was an armored truck driver who decided

to keep some extra money mistakenly handed to his partner as the two

were making a delivery. See id. at 19. Russell's conscience prevailed

and he returned the money a week later, admitted guilt, and fully

cooperated with the government. See id. While we make no judgment

as to whether Russell's behavior passes muster under Glick, it is clear

that Russell's actions more closely fit the paradigm of "aberrant

behavior" than do Eaton's.5 More generally, we note that departures

are by definition intended to be rare; they are reserved for the exception that takes the case out of the "heartland" of cases for which

defendants receive similar sentences. See Koon , 518 U.S. at 98;

Brock, 108 F.3d at 34.

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5 In Grandmaison, the First Circuit stated that those adhering to our

view must recognize that even Russell involved more than just a single

act (i.e., his decision to take the money, his keeping it for a week). However, the number of actions involved is just one of the factors that we

analyzed in refusing to depart in Glick. Russell's actions involved neither

the level of planning nor the length of time that Eaton's actions did.

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Finally, Eaton argues that he is an otherwise model citizen who

suffered from a temporary lapse in judgment. We do recognize that

Eaton is a hard working, generally good citizen with no prior criminal

background who allowed life's pressures to get the better of him.

However, when he was arrested, he was attempting to make his second trip to Jamaica to participate in his in-laws' criminal endeavors.

There was no evidence that the second trip would be his last. As a

result, we cannot conclude that his behavior was aberrant. Moreover,

as we stated, "single act of aberrant behavior" is not synonymous with

"first offense." See Glick, 946 F.2d at 338.

III.

In addition, the government has argued that the district court relied

on forbidden factors, such as socio-economic status, in departing

downward in Eaton's sentence. See Koon, 518 U.S. at 93-94 (stating

that the Commission forbids consideration of economic hardship and

socio-economic status is departing from the Guidelines). However, in

light of our finding that the district court misconstrued the definition

of a single act of aberrant behavior, we need not address that issue.

Accordingly, we vacate Eaton's sentence and remand the case to

the district court to resentence him without relying on the departure

for aberrant behavior.

VACATED AND REMANDED

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