___________

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.

After Stephen Kalb pleaded guilty to participating in a

methamphetamine manufacturing conspiracy, the district court granted a

downward sentencing departure under U.S.S.G. § 5K2.0. The government

appeals, arguing that Kalb's conduct was not a "single act of aberrant

behavior" warranting the departure. Concluding that this is no longer the

most relevant inquiry, we remand for further consideration in light of the

Supreme Court's recent decision in Koon v. United States, 116 S. Ct. 2035

(1996).

I.

In 1990, William Thomas, a methamphetamine distributor, moved to

California and became friends with Kalb, a part-time chemistry
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student. Thomas provided Kalb with chemicals and equipment to make

methamphetamine, but Kalb abandoned the project short of completion and

returned the chemicals and equipment to Thomas, who moved to Iowa later

that year. In November 1992, Thomas asked Kalb to acquire some hydriodic

acid, a chemical used in manufacturing methamphetamine that could be

legally purchased in California, but not in Iowa. Kalb shipped six gallons

of hydriodic acid to Thomas in Iowa, knowing it would be used to

manufacture methamphetamine. Thomas paid Kalb $1,000. Two months later,

police arrested Thomas and seized contraband at his methamphetamine

laboratory, 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 offered $50,000 in profits,

Kalb agreed to purchase chemicals, drive them from California to Iowa, and

help Thomas manufacture another batch. Kalb was arrested as he arrived in

Iowa with the precursor chemicals.

Kalb's March 1993 plea agreement stated that he could receive a

downward departure if he substantially assisted law enforcement

authorities. See U.S.S.G. § 5K1.1. The Presentence Report, issued in June

1993 prior to entry of the plea, attributed to Kalb 5.29 kilograms of

methamphetamine -- one-quarter kilogram manufactured for Thomas in 1990

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 conducted a plea and sentencing hearing in September 1995.

After accepting Kalb's guilty plea, the court determined that his

guidelines sentencing range is 108 to 135 months in prison, and that he is

subject 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

agreement and his guilty plea and sentencing, the government made no

substantial assistance motion. However, Kalb moved for a downward
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departure for aberrant behavior. The district court granted a § 5K2.0

departure, explaining:

[T]he defendant did get involved with Mr. Thomas [in 1990] and

started to cook a batch of methamphetamine but abandoned the

project; two years later did sell hydriodic acid, which . . .

in essence was the single act of [aberrant] behavior, and then

. . . the final activity . . . was . . . part of the conspiracy

[but] does not take the case out of the situation that allows

for a departure [because] Mr. Kalb at least initially was

reluctant to get reinvolved, 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 his

mandatory minimum sentence, a finding the government does not challenge.

See 18 U.S.C. § 3553(f). Kalb was sentenced to sixty months in prison plus

five years of supervised release. The government appeals the grant of a

§ 5K2.0 downward departure. 

II.

A district 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 taken

into consideration by the Sentencing Commission in formulating the

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 particular 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 United

States v. Lewis, 90 F.3d 302, 304 (8th Cir. 1996). 

In Koon, the Supreme Court considered a case of great notoriety in

which the district court had granted an eight-level downward departure

based upon five different factors, and the court
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of appeals had reversed. The Supreme Court first defined the proper

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 Guidelines' 'heartland' and

make of it a special, or unusual, case?" The Court further explained that

the initial inquiry is whether each special feature is a "prohibited,"

"encouraged," "discouraged," or "unmentioned" departure factor in the

Guidelines. Having made that determination, the sentencing court must then

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 never be the basis

of a departure], the sentencing court cannot use it as a basis

for departure. If the special 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 should

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 the

"structure and theory of both relevant individual guidelines

and the Guidelines taken as a whole," decide whether it is

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 Guidelines

will be "highly infrequent." 1995 U.S.S.G. ch.1, pt.A. 

116 S. Ct. at 2045 (citations to Rivera omitted). The Supreme Court

unanimously adopted this analytical approach to departures. The dissenters

in Koon, including Justice Breyer, the author of Rivera, disagreed only

with its application to the facts in Koon. 

Turning to 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 appeals need not defer to the

district court's determination of an issue of law, such as "whether a

factor is a permissible basis for departure under any circumstances." But

the district 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 some unusual or exceptional way." 116 S. Ct. at 2047-48. The Court

concluded: "Discretion is reserved within the Sentencing Guidelines and

reflected by the standard of appellate review we adopt." Id. at 2053. 

III.

On this appeal, 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 phrase "single acts of aberrant

behavior" originates with the Sentencing Commission. In discussing the

general subject of probation and split sentences, the Commission stated

that it "has not dealt with the single acts of aberrant behavior that still

may justify probation at higher offense levels through departures."

U.S.S.G. Ch.1, Pt.A, intro. comment. (4)(d). However, in applying that

legitimate potential departure factor, our prior cases, and the district

court in this case, have not accurately anticipated the Koon-mandated mode

of analysis in a number of significant respects. 

First, the Sentencing Commission only mentioned "single acts of

aberrant behavior" in discussing probation and split sentences. Thus, it

is an encouraged factor only when considering crimes in which the offender

might be eligible, with a departure, for those modest forms of punishment.

There is nothing in this specific comment, or its context within the

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, Withrow was

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.

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Commission intended to encourage aberrant behavior departures for

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, 1291

(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"

which may be considered for departure purposes is the "single act of

aberrant behavior" mentioned in the introductory comment about probation

and split sentences. But see United States v. Simpson, 7 F.3d 813, 820

2

(8th Cir. 1993) (more than one act might "qualif[y] as aberrant behavior

warranting a departure"). However, the Guidelines "place essentially no

limit on the number of potential factors that may warrant departure."

Koon, 116 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 aberrant behavior does not appear in its general discussion of

departures. In that discussion, the Commission specifically states that

it "does not intend to limit the kinds of factors, whether or not mentioned

anywhere else in the guidelines, that could constitute grounds for

departure 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 the

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. 

Third, when dealing with an unmentioned potential departure factor

such as alleged aberrant behavior, Koon instructs the sentencing court to

consider the "structure and theory of both relevant individual guidelines

and the Guidelines taken as a whole." 116 S. Ct. at 2045 (citation

omitted). In this case, we cannot tell from the sentencing record what

aspects of Kalb's behavior the district court considered "aberrant," and

why that particular kind of aberrant behavior falls outside the heartland

of the guidelines applicable in determining Kalb's sentencing range. For

example, the court stated that Kalb's shipping of six gallons of a

precursor chemical was a single aberrant act, but it did not compare this

single act to those of other peripheral drug conspirators, such as cocaine

and heroin couriers. The court considered Kalb less culpable in 1993

because he was enticed by the promise of exorbitant drug profits, but it

did not explain why this made Kalb an "aberrational" drug conspirator. And

the court suggested that Kalb was merely a peripheral supplier like the

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 (1994), but it did not analyze

the factual distinctions between the two cases to determine whether this

case, too, is outside the heartland.

At sentencing, the parties and the district court focused primarily

on whether Kalb's conduct fit the definition of a "single act of aberrant

behavior" adopted in prior Eighth Circuit cases. This is only the

beginning of the departure analysis Koon now requires, an analysis which,

when properly 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 court

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 sentencing

guidelines 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 power

to determine the length of a defendant’s sentence away from Article III

judges and place it in the hands of prosecutors who control the charges

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 in

sentencing and that sentences resulting from guideline departures are

appropriate in certain circumstances. Koon sends a signal to appellate

courts to extend a greater measure of deference to district courts'

discretion in sentencing. In this case, Judge Melloy, an experienced

jurist, made a fair and reasonable decision supported by adequate grounds

for departing. We should affirm.

II. DISCUSSION

In Koon, the Supreme Court instructed appellate courts to accord

sentencing courts greater discretion in their decisions to depart from the

guidelines. Koon, 116 S. Ct. at 2043 (recognizing abuse of discretion

rather than de novo standard of review); see also 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

cases that feature aggravating or mitigating circumstances of a kind or

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 sentencing

court.” Id. at 2046. On appeal, therefore, this court must ask whether

the district court’s ground for departure “is a permissible basis for

departure under any circumstances,” and if so, whether the district court

abused its discretion by finding the factor “present to a degree not

adequately considered by the Commission.” Id. at 2047. In conducting our

review, we must recognize the district court’s institutional advantage in

assessing guidelines cases. Id.

My view of this case differs from the majority’s in four ways.

First, I believe aberrant behavior constitutes an encouraged factor, rather

than an unmentioned factor, according to the Sentencing Commission’s

comments. Second, the district court satisfied the requirements laid out

in Koon. Third, I believe Koon and United States v. McCarthy, 97 F.3d 1562

(8th Cir. 1996), demonstrate that the district court in this case did not

abuse its discretion and support affirming the sentence. Finally, I

believe the majority’s opinion may lead to confusion regarding the

appropriate analysis for district courts to undertake when considering

whether a defendant’s conduct constitutes aberrant behavior justifying a

departure.

A. Aberrant Behavior Constitutes an Encouraged, Rather Than

Unmentioned, Factor for District Courts to Consider under the

Sentencing Guidelines.

Although the majority’s opinion recognizes that the district court

relied on an appropriate factor for its departure, aberrant behavior, the

majority mischaracterizes aberrant behavior as an “unmentioned” factor

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 take the factor into account.

Koon, 116 S. Ct. at 2045. A district court may depart from the guidelines

based on an unmentioned factor, however, only after finding that “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.” Id.

(citation omitted). Although I believe this court should affirm the

district court’s decision to depart under that characterization, I believe

characterizing aberrant behavior as an encouraged factor and analyzing the

district court’s decision accordingly would better maintain the integrity

of our analysis.

The majority concludes that because the Commission “only mentioned

‘single acts of aberrant behavior’ in discussing probation and split

sentences . . . . it is an encouraged factor only when” the case concerns

the possibility of probation. Slip op. at 5. The majority goes on to

infer that aberrant behavior must be an unmentioned factor for all other

“serious offenses” because the Commission did not mention its inability to

deal with aberrant behavior elsewhere in its comments. Id. Thus,

according to the majority’s analysis, if a district court relies on

aberrant behavior to depart downward from a higher offense level’s

guideline range to sentence a defendant to probation, the guidelines

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 shorter

prison term, however, the majority’s opinion favors treating aberrant

behavior as an unmentioned factor. 

I cannot agree with this result. In my opinion, whether aberrant

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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discussed in the Commission’s general discussion of departures, the

discussion in the probation setting acknowledges the Commission’s inability

to accommodate aberrant behavior in the guidelines as a whole: “The

Commission, of course, has not dealt with the single acts of aberrant

behavior that still may justify probation at higher offense levels through

departures.” U.S.S.G. Ch.1, Pt.A, intro. comment. 4(d) (emphasis added).

The Commission’s inability to accommodate aberrant behavior in the context

of probation and split sentences is not diminished when the issue concerns

the length of the defendant’s prison term. 

In addition, the Commission intended aberrant behavior to be an

encouraged factor, even for serious offenses, because it expressly

recognized the possibility of departing downward from the prison terms at

“higher offense levels” to probation or split sentences. Id.; see also

United States v. Withrow, 85 F.3d 527, 530 (11th Cir. 1996) (“All circuits

that have addressed and resolved the question . . . have concluded that

single acts of aberrant behavior were excluded from consideration in the

formulation of the guidelines and thus might justify sentences below the

guideline range even in cases where probation is not a viable option.”

(emphasis added) (citation omitted)). Whether a district court departs

downward from the guidelines range to a shorter prison term, or departs

downward to probation or a split sentence in no way changes whether the

court relied on an encouraged or unmentioned factor. Consequently, I

believe courts should treat aberrant behavior as an encouraged factor for

departures because the Commission acknowledged its inability to accommodate

aberrant behavior within the structure of the guidelines.

B. The District Court's Opinion Satisfies the Requirements

Established in Koon.
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At issue here is whether the district 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

“institutional advantage over appellate courts in making these sorts of

determinations [because] . . . they see so many more Guidelines cases than

appellate courts do.” Koon, 116 S. Ct. at 2047. The Supreme Court

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 factual

matter. Id. Thus, given the district court’s institutional 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 aberrant

behavior on its findings 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

offense); and (3) Kalb reluctantly traveled to Iowa with chemistry

equipment only because Thomas lured him with the promise of $50,000.

(Appellant’s App. at 17-18 containing sentencing transcript). The district

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

district court’s downward departure for low-level supplier of diluent

chemicals in drug scheme who was not involved in manufacture or

distribution of drugs), to justify the departure. Appellant’s Appendix at

19. In addition, the record includes testimonials from several members of

Kalb’s community attesting that his criminal conduct was out of character.

(See Appellee’s App. at 1-10). I believe the reasons given by the district

court, its reliance on our decision in Posters ‘N’ Things, and the record

as a whole demonstrate that the district court exercised its discretion

appropriately. The district court's opinion, in essence, is supported by

Koon.
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Furthermore, according to Williams v. United States, 503 U.S. 193,

201-03 (1992), 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 intended to depart from the Guidelines and any ambiguity in

its reasoning would not result in a different sentence. Thus, assuming

arguendo that the district court’s explanation was less than thorough, I

believe the district court's decision to depart from the guidelines

contained clear and adequate support in the record for this court to affirm

the district court's decision without remanding the case for more

particularized findings. 

C. Precedent Supports Granting District Court Substantial

Deference and Affirming Departure.

Remanding this case to the district court for a more detailed

explanation of its decision also appears inconsistent with the Supreme

Court’s disposition of a similar issue in Koon and this court’s decision

in United States v. McCarthy, 97 F.3d 1562 (8th Cir. 1996). When reviewing

the downward departures 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 “consideration of this factor could be

incongruous with the dual responsibilities of citizenship” and

“[s]uccessive state and federal prosecutions do not violate the Double

Jeopardy Clause,” the Court ruled that the district court did not abuse its

discretion by departing downward. Id. (citations omitted). The Court did

not remand the case for more extensive explanations of these findings even

though the district court never delved into the unique factual

circumstances of the case or detailed how the case differed from typical

guidelines cases. Instead, the district court merely stated that the

defendants had previously been acquitted of state charges for the same

conduct, and that “the successive state and federal prosecutions, though

legal, raise a specter of unfairness.” United
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States v. Koon, 833 F. Supp. 769, 786 (C.D. Cal. 1993); see also id. at

790. In addition, the district court made a passing reference to the

“combined extraordinary circumstances of this case,” and the “unusual

circumstances of the underlying conduct” without further elaboration. Id.

at 790-91.

As discussed above, the district court in this case articulated its

reasons for finding aberrant 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 Koon

supported its decision with unspecified references to “unusual

circumstances,” the district court in Kalb’s case identified particular

facts in the record demonstrating the aberrant nature of Kalb’s conduct.

(See Appellant’s App. at 18-20). As further support for its decision, the

district court noted that it found Kalb’s conduct analogous to that in

Posters ‘N’ Things. Id. at 19-20. Thus, the district court’s explanation

for its departure included more specificity than the district court

decision affirmed by the Supreme Court in Koon.

Likewise, the Eighth Circuit recently affirmed an upward departure

reasoning that the district court was due substantial deference despite
 Other circuits also uphold departures without remanding for

1

detailed or extensive explanations from the district court, thus

granting district courts the ability to appropriately exercise

their traditional discretion. See, e.g., United States v. Rioux,

97 F.3d 648, 662-63 (2d Cir. 1996) (noting that factors used to

support departure were “not ordinarily relevant,” but ruled that

the district court never abused its discretion by finding that

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 that any

error . . . is plain, given . . . the deference owed to the

district court’s determination that the case falls outside a

guideline’s heartland.” (citing Koon, 116 S. Ct. at 2046-47));

United States v. Grandmaison, 77 F.3d 555, 563 (1st Cir. 1996)

(emphasizing importance of district court’s ability to consider

“the totality of the circumstances,” rather than rigid formulaic

standard, when determining whether to depart based on aberrant

behavior); United States v. Takai, 941 F.2d 738, 743 (9th Cir.

1991) (allowing district court to exercise discretion to depart

based on aberrant behavior even if defendant committed several acts

culminating in one criminal act); accord United States v. Simpson,

7 F.3d 813, 820 (8th Cir. 1993) (leaving open possibility that

district court properly exercising its discretion could depart

based on aberrant behavior even though defendant committed several

criminal acts).

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concerns about the appropriateness of the departure factors . In United

1

States v. McCarthy, 97 F.3d 1562,
-16-

1581 (8th Cir. 1996), the district court departed upward from the

guidelines for three unmentioned factors. The district court decided the

heartland of cases under the guideline for using buildings to store

marijuana did not encompass cases in which (1) the charge was

incommensurate with the defendant’s acts, (2) the defendant reaped a large

return on his investment, and (3) the defendant knew his business laundered

money. Id. This court affirmed without requiring the district court to

extensively elaborate about how the case differed from other guidelines

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 “not

ordinarily relevant” factors).

I believe this court’s treatment of a district court’s decision to

depart from the guidelines in McCarthy requires us to affirm the district

court’s decision in this case. According to the majority’s analysis, both

cases concerned departures based on unmentioned factors. In McCarthy the

district court relied on the defendant’s large return on his investment and

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 store marijuana differed from

the defendant in terms of profit or knowledge. See id. In Kalb’s case,

however, the majority remands for further explanation and comparison

because the district court relied on the defendant’s susceptibility to

enticements of large profits and reluctance to participate in the

conspiracy. The factors relied on by the district court in Kalb’s case to

depart downward from the guidelines are merely the inverse of the factors

relied on by the district court in McCarthy to depart upward from the

guidelines. Likewise, both district judges regarded the guidelines ranges

as incommensurate with the defendants’ acts. The only discernable

distinction between this case and McCarthy appears to be that the former

concerned a downward departure and the latter an upward departure. The

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 majority. The majority’s opinion calls for the district court to

compare Kalb’s conduct and motivation to other drug couriers and explain

“why this 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 conduct

differed from “typical” drug couriers. Whether a defendant’s conduct

constitutes aberrant behavior, however, is not determined by comparing the

actions, taken in isolation, with other defendants to decide if the

behavior was unusual. Rather, the district court should determine whether

the behavior was more unusual for the particular defendant to engage in

given the unique characteristics of the defendant, that is, whether Kalb’s

acts were more or less aberrant for Kalb to
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undertake, given his background, family, work experience, disposition,

etc., than for a typical drug courier. 

III. CONCLUSION

The Supreme Court recognizes that district courts retain their

traditional discretion to depart from the guidelines for atypical cases and

possess a unique institutional advantage to discern the typical cases from

the atypical. This court should do no less.

A true copy.

Attest:

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