___________ No. 95-3342

___________ United States of America, * * Plaintiff-Appellant, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. Stephen N. Kalb, * * Defendant-Appellee. *

___________ Submitted: September 10, 1996 Filed: January 28, 1997

___________ Before BOWMAN, BRIGHT, and LOKEN, Circuit Judges.

___________ LOKEN, Circuit Judge.

Aft er Stephen Kalb pleaded guilty to participating in a meth amphetamine manufacturing conspiracy, the district court granted a downwa rd sentencing departure under U.S.S.G. § 5K2.0. The governmen t appea ls, arguing that Kalb's conduct was not a "single act of aberran t behavior" warranting the departure. Concluding that this is no longer the most relevant inquiry, we remand for further con sideration in light of the Supreme Court's recen t decision in Koon v. United States , 116 S. Ct. 2035 (1996).

I.

In 1990, William Thomas, a methamphetamine distributor, moved t o California and became friends with Kalb, a part-time chemistry

### -2-

student. Thomas provided Kalb with chemicals and equipment to mak e metham phetamine, but Kalb abandoned the project short of completion an d returned the chemicals and equipment to Thomas, who moved to Iowa late r that year. In Novemb er 1992, Thomas asked Kalb to acquire some hydriodic acid, a chemical used in manufacturing methamphetamine that could b e legally purchased in California, but not in Iowa. Kalb shipped six gallon s of hyd riodic acid to Thomas in Iowa, knowing it would be used t o manufacture methamphe tamine. Thomas paid Kalb $1,000. Two months later, polic e arrested Thomas and seized contraband at his methamphetamin e laborat ory, including the remaining hydriodic acid purchased by Kalb

. Thomas agreed to cooperate with authorities and engaged Kalb in a series of taped telephone conversations in which Thomas encouraged Kalb to help manufacture more methamphetamine. When Thomas o ffered $50,000 in profits, Kalb agreed to purchase chemicals, drive them fr om California to Iowa, and help Thomas manufacture another batch. Kalb was arrested as he arrived in Iowa with the precursor chemicals.

Kalb's Ma rch 1993 plea agreement stated that he could receive a down ward departure if he substantially assisted law enforcemen t authorities. See U.S.S.G. § 5K1.1. The Presentence Report, issued in Jun e 199 3 prior to entry of the plea, attributed to Kalb 5.29 kilograms o f methamphetamine -- one-quarter kilogram manufactured for Thomas in 199 0 plus six kilograms that could have been produced from the hydriodic acid shipped to Thomas in November 1992, reduced by an 85% purity factor. The district court conduc ted a plea and sentencing hearing in September 1995. After accepting Kalb's guilty plea, the court determined that hi s guidelines sentencing range is 108 to 135 months in prison, and that he is

su bject to a mandatory minimum ten-year sentence. See 21 U.S.C

. §§ 841(b)(1)(A) and 846. Despite the two year delay between Kalb's plea agre ement and his guilty plea and sentencing, the government made n o substantial assistance motion. However, Kalb moved for a downward

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depar ture for aberrant behavior. The district court granted a § 5K2. 0 departure, explaining:
[T]he defendant did get involved with Mr. Thomas [in 1990] and sta rted to cook a batch of methamphetamine but abandoned th e project; two years later did sell hydriodic acid, which . . . in essence was the singl e act of [aberrant] behavior, and then . . . the final activity . . . was . . . part of th e conspiracy [but] does not take the case out of the situation that allows for a departure [because] Mr. Kalb at least initially wa s reluctant to get reinvol ved, and it was after the offer of the $50,000 that he decided that he would get further involved in the criminal activity.

The court further found that Kalb is eligible for a departure from hi s mandatoryminimum sentence, a finding the government does not challenge. See 18 U.S.C. § 3553(f). Kalb was sentenced to sixty months in prison plu s five years of supervised release. The government appeals the grant of a § 5K2.0 downward departure.

II.

A distric t court may depart (that is, impose a sentence outside the applicable guidelines sentencing range) if there exists an "aggravating or mitigating circumstance of a kind, or to a degree, not adequately take n into consideration by the Sentencing Commission in formulating th e guidelines that should result in a sentence different from that described. " 18 U.S.C. § 3553(b). Departure is only appropriate in the atypical case, "one to which a parti cular guideline linguistically applies but where the conduct significantly differs from the norm. . . ." U.S.S.G. Ch.1, Pt.A, intro. comment. 4(b), quoted in Koon , 116 S. Ct. at 2044, and in Unite d States v. Lewis , 90 F.3d 302, 304 (8th Cir. 1996).

In Koon , the Supreme Court considered a case of great notoriety i n which the district court had granted an eight-level downward departur e based upon five different factors, and the court

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of a ppeals had reversed. The Supreme Court first defined the prope r analysis for making departure decisions. Agreeing with then-Chief Judge Breyer's decision in United States v. Rivera , 994 F.2d 942 (1st Cir. 1993) , the Court explained that a sentencing court must first ask, "What features of this case, potentially, take it outside the G uidelines' 'heartland' and make of it a special, or unusual, case?" The Co urt further explained that the initial inquiry is whether each special feature is a "prohibited, " "en couraged," "discouraged," or "unmentioned" departure factor in th e Guidelines

. Having made that determination, the sentencing court must the n analyze the potential departure factors, singly and in combination, in the following manner:
If the special factor is a forbidden factor [that is, one that the Sentencing Commission has declared may neverbe the basis of a departure], the sen tencing court cannot use it as a basis for departure. If the s pecial factor is an encouraged factor, the court is authorized to depart if the applicable Guideline does not already take it into account. If the special factor is a discouraged factor, or an encouraged factor already taken into account by the applicable Guideline, the court shoul d depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present. If a factor is unmentioned in the Guidelines, the court must, after considering th e "s tructure and theory of both relevant individual guideline s and the Guidelines taken as a whole," decide whether it i s sufficient to take the case out of the Guideline's heartland. The court must bear in mind the Commission's expectation that departures based on grounds not mentioned in the Guideline s will be "highly infrequent." 1995 U.S.S.G. ch.1, pt.A.

116 S. Ct. at 2045 (citations to Rivera omitted). The Supreme Cour t unanimously adopted this analytical approach to departures. The dissenter s in Koon , including Justice Breyer, the author of Rivera , disagreed onl y with its application to the facts in Koon
. Turning t o the question of appellate review of departure decisions, the Court in Koon adopted the "unitary abuse-of-

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discretion standard." See Cooter & Gell v. Hartmarx Corp. , 496 U.S. 384, 403 (1990). Under this standard, a court of app eals need not defer to the district c ourt's determination of an issue of law, such as "whether a factor is a permissible basis for departure unde r any circumstances." But the dis trict court is entitled to deference on most departure issues , including the critical issues of "[w]hether a given factor is present to
a degree not adequately considered by the Commission, or whether a discouraged factor nonetheless justifies departure because it is present in so me unusual or exceptional way." 116 S. Ct. at 2047-48. The Cour t concluded: "Discretion is reserved within the Sentencing Guidelines and reflected by the standard of appellate review we adopt." Id. at 2053.

III.

On this a ppeal, the parties primarily debate whether Kalb's offense
was a "single act of aberrant behavior" as that term has been defined in prior Eighth Circuit departure cases. The phras e "single acts of aberrant behavi or" originates with the Sentencing Commission. In discussing th e genera l subject of probation and split sentences, the Commission state d that it "has not dealt with the single acts of aberrant behavior that stil l may justify probat ion at higher offense levels through departures." U.S .S.G. Ch.1, Pt.A, intro. comment. (4)(d). However, in applying tha t legitimate potential departure factor, our prior cases, and the district court in this case, have not accurately anticipa ted the Koon -mandated mode of analysis in a number of significant respects. Fir st, the Sentencing Commission only mentioned "single acts o f aberrant behavior" indiscussing probation and split sentences. Thus, it is an encouragedfactor only when considering cr imes in which the offender might be eligible, with a departure, for those m odest forms of punishment. Ther e is nothing in this specific comment, or its context within th e Guidelines, that suggests the

### The contrary conclusion expressed in United States v. 1 

### Withrow , 85 F.3d 527, 530 (11th Cir. 1996), was not essential to the court's decision to affirm. More importantly, Withrowwas decided the same day as Koon and did not employ the analysis mandated by Koon
. These cases narrowly construed that phrase as meaning 2 

### "spontaneous and seemingly thoughtless" criminal conduct. United States v. Garlich , 951 F.2d 161, 164 (8th Cir. 1991). The question after Koon is whether any other kind of "aberrant behavior" may ever warrant a departure.
-6- Commis sion intended to encourage aberrant behavior departures fo r murderers, drug dealers, and bank robbers, the serious offenses at issue in our aberrant behavior departure decisions in United States v. Weise , 89 F.3d 502, 507 (8th Cir. 1996), United States v. Jenkins , 78 F.3d 1283, 129 1 (8th Cir. 1996), United States v. Premachandra , 32 F.3d 346, 349 (8th Cir. 1994), and United States v. Bieri , 21 F.3d 811, 818-19 (8th Cir.), cert. denied , 115 S. Ct. 208 (1994). Under Koon , for a serious crime like Kalb' s that cannot warrant probation, a "single act of aberrant behavior" is an unmentioned, not an encouraged departure factor. 1

Second, our prior cases suggest that the only "aberrant behavior " whic hmay be consideredfor departure purposes is the "single act o f aberrant behavior" mentioned in the introductory comment about probation and split sentences. But see United States v. Simpson , 7 F.3d 813, 82 0 2 (8thCir. 1993) (more than one act might "qualif[y] as aberrant behavior warranting a departure"). However, the Guidelines "place essentially no limit o n the number of potential factors that may warrant departure. " Koon , 1 16 S. Ct. at 2050, quoting Burns v. United States , 501 U.S. 129 , 136-137 (1991). The Commission's introductory comment about single acts of ab errant behavior does not appear in its general discussion o f departures. In that discussion, the Commission specifically states that it "does not intend to limit the kinds of factors, whether or not mentione d anywhe re else in the guidelines, that could constitute grounds fo r depa rture in an unusual case." U.S.S.G. Ch.1, Pt.A, intro. comment

. (4)(b). Thus, under Koon , "aberrant

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behavior" in general is an unmentioned factor, and the task for th e sentencing court is to analyze how and why specific conduct is allegedly aberrant, and whether the Guidelines adequately take into account aspects of defendant's conduct that are in fact aberrant. Th ird, when dealing with an unmentioned potential departure facto r such as alleged aberr ant behavior, Kooninstructs the sentencing court to consider the "structu re and theory of both relevant individual guidelines and the Gui delines taken as a whole." 116 S. Ct. at 2045 (citatio n omitted). In this case, we cannot tell from the sentencing record wha t aspects of Kalb's behavior the district court considered "aberrant," and why that particular k ind of aberrant behavior falls outside the heartland of the guidelines app licable in determining Kalb's sentencing range. For
exa mple, the court stated that Kalb's shipping of six gallons of a precursor chemical wa s a single aberrant act, but it did not compare this single act to those of other peripheral drug con spirators, such as cocaine and heroin couriers. The court considered Kalb less culpable in 199 3 because he was enticed by the promise of exorbitant drug profits, but it did not explain why this made Kalb an "aberrational" drug conspirator. An d the court suggested that Kalb was merely a peripheral supplier like th e defendant in U.S. v. Posters `N' Things Ltd. , 969 F.2d 652, 663 (8th Cir. 1992), aff'd on other grounds , 511 U.S. 513 (199 4), but it did not analyze the factual distinctions between the two cases to determine whether this case, too, is outside the heartland.

At senten cing, the parties and the district court focused primarily on whether Kalb's con duct fit the definition of a "single act of aberrant beh avior" adopted in prior Eighth Circuit cases. This is only th e beginning of the depa rture analysis Koonnow requires, an analysis which, when p roperly conducted, is entitled to deferential review on appeal

. Accordingly, the judgment of the district court is reversed and the case is remanded for resentencing in accordance with this opinion.

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BRIGHT, Circuit Judge, dissenting.

I. INTRODUCTION

I respectfully dissent. Federal judges, especially district cour t judges, are dismayed at the impact of mandatory and guideline sentencing. See United States v. Hiveley , 61 F.3d 1358, 1365 (8th Cir. 1995) (Bright, J., concurring) (discussing federal judges’ dissatisfaction with sentencin g guidel ines and citing Federal Judicial Center, Planning for the Future : Results of a 1992 Federal Judicial Center Survey of United States Judges (1994)). These sentencing schemes essentially take the discretionary powe r to determine the length of a defendant’s sentence away from Article II I judges an d place it in the hands of prosecutors who control the charge s brought against a defendant.
The Supreme Court in Koon v. United States , 116 S. Ct. 2035, 2046-47 (1996) , however, recognized that judicial discretion plays a role i n sentenc ing and that sentences resulting from guideline departures ar e app ropriate in certain circumstances. Koonsends a signal to appellat e courts to extend a greater measure of deference to district courts ' discret ionin sentencing. In this case, Judge Melloy, an experience d jurist, made a fair a nd reasonable decision supported by adequate grounds for departing. We should affirm.

II. DISCUSSION

In Koon , the Supreme Court instructed appellate courts to accor d sentencing courts greater discretion in their de cisions to depart from the guide lines. Koon , 116 S. Ct. at 2043 (recognizing abuse of discretio n rather than de novo standard of review); see als o United States v. McNeil , 90 F.3d 298, 300-01 (8th Cir. 1996) (citing Koon ). The Court emphasized that the Sentencing Guidelines “authorize[] district courts to depart in

cas es that feature aggravating or mitigating circumstances of a kind o r degree not

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adequately taken into consideration by the Commission.” Koon , 116 S. Ct. at 2044. Because the guidelines authorize a district court to depart, a district court’s decision to depart is entitled to “substantial deference, for it embodies the traditional exercise of discretion by a sentencin g court.” Id. at 2046. On appeal, therefore, this court must ask whether the dis trict court’s ground for departure “is a permissible basis fo r departure under any c ircumstances,” and if so, whether the district court abus ed its discretion by finding the factor “present to a degree no t adequately considered by the Commission.” Id. a t 2047. In conducting our review, we must recog nize the district court’s institutional advantage in assessing guidelines cases. Id.

My vi ew of this case differs from the majority’s in four ways

. First, I believe aberrant behavior constitutes an encouraged factor, rathe r th an an unmentioned factor, according to the Sentencing Commission’ s comments. Second, th e district court satisfied the requirements laid out in Koon . Third, I believe Koonand United States v. McCarthy , 97 F.3d 156 2 (8th Cir. 1996), demo nstrate that the district court in this case did not abus e its discretion and support affirming the sentence. Finally, I believ e the majority’s opinion may lead to confusion regarding th e appr opriate analysis for district courts to undertake when considerin g whether a defendant’s conduct constitutes aberrant behavior justifying a departure.

A. Aberrant Behavior Constitutes an Encouraged, Rather Tha n Unmentioned, Factor for District Courts to Consider under the Sentencing Guidelines.

Al thoughthe majority’s opinion recognizes that the district cour t relied on an appropri ate factor for its departure, aberrant behavior, the majo ritymischaracterizes aberrant behavior as an “unmentioned” facto r under the guidelines, rather than an “encouraged” factor. Slip op. at 6. According to Koon , a district

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court may depart from the guidelines based on an encouraged factor if the court finds the applicable guideline did not tak e the factor into account. Koon , 116 S. Ct. at 2045. A district court may depart from the guidelines based o n an unmentioned factor, however, only after finding that “th e factor is present to an exceptional degree or in some other way makes the
case different from the ordinary case where the factor is present.” Id

. (citation omitted). Although I believe this court should affirm th e district court’s decision to depart under that c haracterization, I believe characterizing aberrant behavior as an encourage d factor and analyzing the district court’s deci sion accordingly would better maintain the integrity of our analysis.

Th e majority concludes that because the Commission “only mentione d ‘singl e acts of aberrant behavior’ in discussing probation and spli t sentences . . . . it is an encouragedfactor only when” the case concerns the possibility of probation. Slip op. at 5. The majority goes on t o infer that aberrant behavior must be an unmentioned factor for all other “serious offenses” because the Commission did no t mention its inability to dea l with aberrant behavior elsewhere in its comments. Id. Thus , according to the majority’s analysis, if a district court relies o n aberra nt behavior to depart downward from a higher offense level’ s guidel ine range to sentence a defendant to probation, the guideline s encourage the district court’s consideration of aberrant behavior. If the district court relies on aberrant behavior for departing downward from a higher offense level’s guideline range to sentence a defendant to a shorte r prison term, however, the majority’s opinion favors treating aberran t behavior as an unmentioned factor.

I cannot agree with this result. In my opinion, whether aberran t behavior constitutes an encouraged or unmentioned factor should not turn
on the type of punishment imposed, but rather on the language and intent of the Sentencing Commission. Although not

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discu ssed in the Commission’s general discussion of departures, th e discussion in the probation setting acknowledges the Commission’s inabilit y to a ccommodate aberrant behavior in the guidelines as a whole: “Th e Commission , of course , has not dealt with the single acts of aberran t behavior that still may justify probation at hig her offense levels through departures.” U.S.S.G . Ch.1, Pt.A, intro. comment. 4(d) (emphasis added). The Commission’s inability to accommodate aberra nt behavior in the context of probation and split sentences is not diminish ed when the issue concerns the length of the defendant’s prison term.

In addition, the Commission intended aberrant behavior to be a n encouraged factor, even for serious offenses, because it expressl y recognized the possib ility of departing downward from the prison terms at “higher offense levels” to probation or split sentences. Id. ; see als o United States v. Withrow , 85 F.3d 527, 530 (11th Cir. 1996) (“All circuits that have addressed and resolved the question . . . have concluded tha t single acts of aberrant behavior were excluded from consideration in the formulationof the guidelines and thus might justify sentences below the guide line range even in cases where probation is not a viable option

. ” (empha sis added) (citation omitted)). Whether a district court depart s downward from the guidelines range to a shorter prison term, or depart s downward to probation or a split sentence in no way changes whether th e court r elied on an encouraged or unmentioned factor. Consequently, I believe courts shouldtreat aberrant behavior as an encouraged factor for departures because the Commission acknowledged its inability to accommodat e aberrant behavior within the structure of the guidelines.

B. The District Court's Opinion Satisfies the Requirement s Established in Koon .

### -12- At issue here is whether the distric t court abused its discretion by determining that “the misconduct which occurred in the particular instance suffices to make the case atypical,” keeping in mind the district court’s “insti tutional advantage over appellate courts in making these sorts o f determinations [because] . . . they see so many more Guidelines cases than appellate c ourts do.” Koon , 116 S. Ct. at 2047. The Supreme Cour t recognized that the district court’s decision “is apt to vary” from case to case because whether the misconduct makes the case atypical is a factua l matter. Id. Thus, given the district court’s i nstitutional advantage and the inherently factual nature of the inquiry, this court must accord the district court’s decision substantial deference. See id. at 2046.

In this case, the district court supported its finding of aberran t behavior on its findi ngs that (1) Kalb began making methamphetamine under Thomas’ direction, but stopped once he realized what he was making; (2 ) Kalb sold a legal precursor chemical to Thomas ( “the real gravamen” of his offens e); and (3) Kalb reluctantly traveled to Iowa with chemistr y equi pment only because Thomas lured him with the promise of $50,000

. (Appellant’s App. at 17-18 containing sentencing transcript). The distric t court also described Kalb’s case as sufficiently similar to United States v. Posters ‘N’ Things , Ltd. , 969 F.2d 652, 663 (8th Cir. 1992) (affirming distric t court’s downward departure for low-level supplier of diluen t chemicals in drug scheme who was not involved in manufacture o r distribution of drugs), to justify the departure . Appellant’s Appendix at 19. In addition, the record includes testimonia ls from several members of Kalb’s community attesting that his criminal con duct was out of character. ( See Appellee’s App. at 1-10). I believe the reasons given by the distric t court, its reliance o n our decision in Posters ‘N’ Things , and the record
as a whole demonstrate that the district court exercised its discretio n appropriately. The d istrict court's opinion, in essence, is supported by Koon
.

### -13- Furthermore, according to Williams v. United States , 503 U.S. 193 , 201-03 (1 992), and United States v. Walters , 87 F.3d 663, 671 (5th Cir

. 1996), remanding the case for resentencing is unnecessary if the district court clearly intende d to depart from the Guidelines and any ambiguity in its reasoning would not result in a different sentence. Thus, assumin g arguendo that the district court’s explanation was less than thorough, I believ e the district court's decision to depart from the guideline s contained clear and adequate support in the record for this court to affir m the di strict court's decision without remanding the case for mor e particularized findings.

C. Pr ecedent Supports Granting District Court Substantia l Deference and Affirming Departure. Rem anding this case to the district court for a more detaile d explan ationof its decision also appears inconsistent with the Suprem e Court’s disposition of a similar issue in Koonand this court’s decision in United States v. McCarthy , 97 F.3d 1562 (8th Cir. 1996). When reviewin g the downward departur es in Koon , the Supreme Court discussed the district court’s reliance on “successive prosecutions” to justify its departure

. Koon , 116 S. Ct. at 2053. Although “considerati on of this factor could be inc ongruous with the dual responsibilities of citizenship” an d “[s]uc cessive state and federal prosecutions do not violate the Doubl e Jeopardy Clause,” the Court ruled that the district court did not abuse it s discretion by departing downward. Id. (citations omitted). The Court di d not remand the case for more extensive explanati ons of these findings even though the district court never delved into the unique factua l circumstances of the case or detailed how the case differed from typical guideli nes cases. Instead, the district court merely stated that th e defendants had previously been acquitted of state charges for the sam e conduct, and that “the successive state and federal prosecutions, though legal, raise a specter of unfairness.” United

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State s v. Koon , 833 F. Supp. 769, 786 (C.D. Cal. 1993); see also id. a t 790

. In addition, the district court made a passing reference to th e “combin ed extraordinary circumstances of this case,” and the “unusua l circumstances of the underlying conduct” without further elaboration. Id. at 790-91.

As discus sed above, the district court in this case articulated its reasons for finding a berrant behavior with support in the record. First, unlike the departure in Koon , consideration of the aberrant behavior does not raise concerns about the dual responsibility of citizenship or other federalism issues. In addition, whereas the district court in Koo n sup ported its decision with unspecified references to “unusua l circumstances,” the district court in Kalb’s case identified particula r facts in the record demonstrating the aberrant nature of Kalb’s conduct. ( See Appellant’s App. at 18-20). As further sup port for its decision, the distr ict court noted that it found Kalb’s conduct analogous to that i n Posters ‘N’ Things

. Id. at 19-20. Thus, the di strict court’s explanation for it s departure included more specificity than the district cour t decision affirmed by the Supreme Court in Koon
.

Li kewise, the Eighth Circuit recently affirmed an upwarddepartur e
reason ing that the district court was due substantial deference despit e

### Other circuits also uphold departures without remanding fo r 1 

### detail ed or extensive explanations from the district court, thu s granti ng district courts the ability to appropriately exercis e their traditional discretion. See, e.g. , United States v. Rioux , 97 F. 3d 648, 662-63 (2d Cir. 1996) (noting that factors used t o suppor t departure were “not ordinarily relevant,” but ruled tha t the district court never abused its discretion by finding tha t defendant’s case differed significantly from heartland cases) ; United States v. Barajas-Nunez , 91 F.3d 826, 832 (6th Cir. 1996 ) (“Although we believe that the district court’s findings . . . do not support a lesser harms departure, . . . we cannot find t hat any error . . . is plain, given . . . the deference owed to th e distri ct court’s determination that the case falls outside a gu ideline’s heartland.” (citing Koon , 116 S. Ct. at 2046-47)) ; United States v. Grandmaison , 77 F.3d 555, 563 (1st Cir. 1996 ) (emp hasizing importance of district court’s ability to conside r “the t otality of the circumstances,” rather than rigid formulai c st andard, when determining whether to depart based on aberran t behavior); United States v. Takai , 941 F.2d 738, 743 (9th Cir

. 1991 ) (allowing district court to exercise discretion to depar t based on aberrant behavior even if defendant committed sever al acts culminating in one criminal ac t); accord United States v. Simpson , 7 F.3d 813, 820 (8th Cir. 1993) (leaving open possibility tha t distri ct court properly exercising its discretion could depar t based on aberrant behavior eve n though defendant committed several criminal acts).
-15- concern s about the appropriateness of the departure factors . In Unite d 1 States v. McCarthy , 97 F.3d 1562,

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1581 (8th Cir. 1996), the district court departed upward from th e guidelines for three unmentioned factors. The district court decided the heartland of cases under the guideline for using buildings to stor e
mar ijuana did not encompass cases in which (1) the charge wa s incommensurate with the defendant’s acts, (2) th e defendant reaped a large return on his investment, and (3) the defendant knew his business laundere d money. Id. This court affirmed without requiring the district court to extens ivelyelaborate about how the case differed from other guideline s
cases. Id. ; see also United States v. One Star , 9 F.3d 60, 61 (8th Cir. 1993) (affirming district court’s decision to depart based on “no t ordinarily relevant” factors).

I believ e this court’s treatment of a district court’s decision t o depart from the guide lines in McCarthyrequires us to affirm the district court’s decision in this case. According to the majority’s analysis, both cases concerned depar tures based on unmentioned factors. In McCarthythe district court relied on the defendant’s large return on his investment an d his knowledge of his business’ use in criminal activities to support its conclusion that the case fell outside the guideline's heartland. McCarthy , 97 F.3d at 1581. This court did not require the district court to further elaborate about why the defendant’s profits or knowledge were

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extraordinary, nor did this court remand for the district court to compare how other people allowing their business’ to sto re marijuana differed from the defendant in terms of profit or knowledge. See id. In Kalb’s case, ho wever, the majority remands for further explanation and compariso n becaus e the district court relied on the defendant’s susceptibility t o entice ments of large profits and reluctance to participate in th e conspiracy. The factors relied on by the distri ct court in Kalb’s case to depart downward from the guidelines are merely the inverse of the factors rel ied on by the district court in McCarthyto depart upward from th e guidelines. Likewise, both district judges rega rded the guidelines ranges
as inc ommensurate with the defendants’ acts. The only discernabl e distinctionbetween this case and McCarthy appears to be that the former concerned a downward departure and the latter an upward departure. Th e discretion this court affords to district courts ’ decisions to depart from the guidelines cannot be dictated by the direction of the departure

.

D. Proper Inquiry upon Remand.

Finally, I do not agree with the requirements on remand set forth by the majori ty. The majority’s opinion calls for the district court t o compare Kalb’s conduct and motivation to other drug couriers and explain “whythis made Kalb an ‘aberrational’ drug conspirator.” Slip op. at 7. The majority’s opinion requires the district court to explain how Kalb’s acts were aberrant for a drug courier -- in other words, how Kalb’s conduc t differ ed from “typical” drug couriers. Whether a defendant’s conduc t constitutes aberrant behavior, however, is not d etermined by comparing the actions, taken in isolation, with other defendants to decide if th e behavior was unusual. Rather, the district cour t should determine whether the behavior was more unusual for the particular defendant to engage i n given the unique characteristics of the defendan t, that is, whether Kalb’s acts were more or less aberrant for Kalb to

### -18-

unde rtake, given his background, family, work experience, disposition , etc., than for a typical drug courier.

III. CONCLUSION

The Su preme Court recognizes that district courts retain thei r traditional discretion to depart from the guidelines for atypical cases an d possess a unique institutional advantage to disc ern the typical cases from the atypical. This court should do no less.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.