United States v. Rhodes, Robert

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 13, 1998 Decided June 19, 1998

No. 97-3131

United States of America,

Appellee

v.

Robert Rhodes,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 91cr00329-01)

Lois Godfrey Wye, appointed by the court, argued the
cause for appellant. With her on the briefs was John P.
Dean, appointed by the court.

Lisa C. Baskerville, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, John R. Fisher and Thomas C. Black,
Assistant U.S. Attorneys.

Before: Wald, Silberman, and Tatel, Circuit Judges.

Opinion for the Court by Circuit Judge Tatel.

Dissenting opinion filed by Circuit Judge Silberman.

Tatel, Circuit Judge: At resentencing following remand
required by Bailey v. United States, 516 U.S. 137 (1995),
appellant sought downward departure based on his rehabilita-
tive efforts undertaken while serving his original sentence.
Finding departure foreclosed under the Sentencing Guide-
lines, the district court denied appellant's request. Because
we find nothing in the Guidelines prohibiting departures
based on post-conviction rehabilitation, we reverse and re-
mand for the district court to determine whether appellant's
rehabilitative efforts, when compared to the rehabilitative
efforts of all defendants, were so exceptional as to warrant
departure.

I

A jury convicted appellant Robert Rhodes of two counts of
possession of a controlled substance with intent to distribute,
21 U.S.C. s 841(a) (1994), and one count of using or carrying
a firearm in connection with a drug trafficking crime, 18
U.S.C. s 924(c) (1994). The district court sentenced Rhodes
to concurrent 121-month terms of imprisonment for his drug
possession convictions. For the firearm conviction, the dis-
trict court sentenced him to a consecutive sixty-month term.
Because of the section 924(c) conviction, the district court
declined to apply section 2D1.1(b)(1)'s two-level enhancement
for possession of a dangerous weapon, U.S. Sentencing
Guidelines Manual ("U.S.S.G.") s 2D1.1(b)(1) (1997). See id.
s 2K2.4 backg'd (section 924(c) conviction precludes the appli-
cation of "any specific offense characteristic for ... firearm
... use ... or possession").

After this court affirmed Rhodes' conviction, United States
v. Rhodes ("Rhodes I"), 62 F.3d 1449, 1450-51 (D.C. Cir.
1995), the Supreme Court issued Bailey v. United States, 516
U.S. at 143 (section 924(c) requires "active employment" of a
firearm for conviction), granted Rhodes' subsequently filed

petition for certiorari, vacated Rhodes I, and remanded for
reconsideration in light of Bailey. Rhodes v. United States,
517 U.S. 1164-65 (1996). We in turn reversed Rhodes' sec-
tion 924(c) conviction and remanded his remaining convictions
to the district court "for possible resentencing taking into
account the provisions of s 2D1.1(b)(1)." United States v.
Rhodes ("Rhodes II"), 106 F.3d 429, 433 (D.C. Cir.), cert.
denied, 118 S. Ct. 248 (1997).

At resentencing, Rhodes sought downward departure, ar-
guing that during his six and a half years in prison, he had
taken "every opportunity" to improve his circumstances, en-
tering drug rehabilitation, taking vocational and college-level
courses, consistently getting above-average or far-above-
average work reports, and repaying his assessment early.
Finding no authority to depart based on post-conviction reha-
bilitation, the district court rejected Rhodes' request.

Again appealing, Rhodes now contends that the district
court misperceived its departure authority. Although we
review district court departure decisions for abuse of discre-
tion, Koon v. United States, 518 U.S. 81, 96-100 (1996),
"whether a given factor could ever be a permissible basis for
departure is a question of law which we address de novo."
United States v. Sun-Diamond Growers, 138 F.3d 961, 975
(D.C. Cir. 1998) (citing Koon, 518 U.S. at 100).

II

We begin with the government's contention that Rhodes II
limited the district court to applying section 2D1.1(b)(1)'s
weapon-possession enhancement, thus precluding Rhodes
from seeking departure. Had Rhodes II remanded "solely to
apply" or even "to apply" section 2D1.1(b)(1), we would agree.
But Rhodes II contains no such prescriptive language. It
merely remanded for "possible resentencing taking into ac-
count the provisions of s 2D1.1(b)(1)." Rhodes II, 106 F.3d
at 433 (emphasis added). Nothing in this open-ended lan-
guage limits the district court to the mechanical application of
the Guidelines' weapon enhancement.

The government argues that our rejection of de novo
resentencing in United States v. Whren, 111 F.3d 956, 959-60
(D.C. Cir. 1997), cert. denied, 118 S. Ct. 1059 (1998), barred
Rhodes' departure argument in the district court. In Whren
we held that unless we "expressly direct[ ] otherwise," at
resentencing occasioned by remand, sentencing courts may
consider "only such new arguments or new facts as are made
newly relevant by the court of appeals' decision--whether by
the reasoning or by the result." Id at 960. Relying on this
language, the government argues that Whren limits resen-
tencing to facts existing at the time of original sentencing.
We disagree. Whren considered only whether a defendant
could seek departure based on facts available at the time of
initial sentencing (defendant's presence within 1,000 feet of a
school), not whether, as here, he could do so based on facts
not even existing at the time of initial sentencing (post-
conviction rehabilitation). Indeed, Whren itself said that a
"defendant should not be held to have waived an issue if he
did not have a reason to raise it at his original sentencing."
Id. As the government acknowledges, Rhodes "could not
have argued [at initial sentencing] for a departure based upon
his post-sentence rehabilitative efforts since these efforts had
not yet taken place." Appellee's Br. at 9. Moreover, consid-
eration of post-initial sentencing events, in those rare circum-
stances in which such events may become relevant, neither
contravenes Whren's concern with ensuring that parties re-
ceive fair notice of their opponent's arguments at initial
sentencing nor undermines its goal that district courts "re-
solve all material issues ... when the record is fresh in
mind." Whren, 111 F.3d at 960. Rhodes thus never waived
his argument that the Sentencing Guidelines allow such de-
partures, an issue to which we now turn.

III

Recognizing a sentencing court's "obligation to consider all
the relevant factors in a case and to impose a sentence
outside the guidelines in an appropriate case," S. Rep. No.
98-225, at 52 (1983), the Sentencing Reform Act of 1984 gave
district courts authority to depart from an applicable Guide-

lines range if they find "an aggravating or mitigating circum-
stance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission," 18 U.S.C.
s 3553(b)). The Sentencing Commission, acknowledging that
in drafting the Guidelines it had not adequately taken into
consideration "unusual" cases, U.S.S.G. ch. 1, pt. A, intro.
cmt. 4(b); see Koon, 518 U.S. at 93, allowed district courts to
depart in "atypical case[s], [where] a particular guideline
linguistically applies but where conduct significantly differs
from the norm." U.S.S.G. ch. 1, pt. A, intro. cmt. 4(b). See
generally id. s 5K2.0 (discussing departures under the Guide-
lines).

In approaching departure requests, sentencing courts oper-
ate under a set of clearly defined principles. As Koon
directs, if the district court identifies features of a case that
" 'potentially . . . take it outside the Guidelines' "heartland"
and make of it a special, or unusual, case,' " Koon, 518 U.S. at
95 (quoting United States v. Rivera, 994 F.2d 942, 949 (1st
Cir. 1993) (Breyer, C.J.)), it must determine whether " 'the
Commission [has] forbidden departures based on those fea-
tures[.]' " Id. (quoting Rivera, 994 F.2d at 949). Koon
requires district courts to ask this question because Congress
gave the Sentencing Commission, not courts, authority cate-
gorically to prohibit consideration of sentencing factors.

[F]or the courts to conclude a factor must not be consid-
ered under any circumstances would be to transgress the
policymaking authority vested in the Commission.

....

...Congress created the Commission to "establish
sentencing policies and practices for the Federal criminal
justice system," and Congress instructed the Commis-
sion, not the courts, to "review and revise" the Guidelines
periodically. As a result, the Commission has assumed
that its role is "over time [to] ... refine the guidelines to
specify more precisely when departures should and
should not be permitted." Had Congress intended the
courts to supervise the Commission's treatment of depar-

ture factors, we expect it would have said so in a clear
way. It did not, and we will not assume this role.

Id. at 106-09 (internal citations omitted). If, considering
"only the sentencing guidelines, policy statements, and official
commentary of the Sentencing Commission," 18 U.S.C.
s 3553(b), the district court determines that the Commission
prohibited consideration of a given factor, that ends the
matter--the court may not depart. But if nothing in the
Guidelines prohibits consideration of the factor, then Koon
directs further analysis to determine the appropriate depar-
ture standard, an issue we return to in section IV.

Applying Koon to this case, we begin by asking whether
the Commission prohibited consideration of post-conviction
rehabilitation. Koon itself largely answers this question.
Pointing out that the Commission "chose to prohibit consider-
ation of only a few factors, and not otherwise to limit, as a
categorical matter, the considerations which might bear upon
the decision to depart," Koon, 518 U.S. at 94, Koon identifies
only race, sex, national origin, creed, religion, and socio-
economic status, see U.S.S.G. s 5H1.10, lack of guidance as a
youth, see id. s 5H1.12, drug or alcohol abuse, see id.
s 5H1.4, and personal financial difficulties and economic pres-
sures upon a trade or business, see id. s 5K2.12, as prohibited
under the Guidelines. Koon, 518 U.S. at 93. Obviously, post-
conviction rehabilitation is not one of these prohibited factors,
nor have we found any other provision of the Guidelines,
policy statements, or official commentary of the Sentencing
Commission prohibiting its consideration. We therefore hold,
as have two of our sister circuits, that sentencing courts may
consider post-conviction rehabilitation at resentencing. See
United States v. Core, 125 F.3d 74, 75 (2d Cir. 1997) ("We find
nothing in the pertinent statutes or the Sentencing Guidelines
that prevents a sentencing judge from considering post-
conviction rehabilitation in prison as a basis for departure if
resentencing becomes necessary."), cert. denied, 118 S. Ct.
735 (1998); United States v. Sally, 116 F.3d 76, 80 (3d Cir.
1997) (holding that "post-offense rehabilitation efforts, includ-
ing those which occur post-conviction, may constitute a suffi-
cient factor warranting a downward departure").

Attempting to distinguish Koon and avoid the Second and
Third Circuits' holdings that sentencing courts may depart
based on post-conviction rehabilitation, the government ar-
gues that such departures somehow "revive the parole sys-
tem" abolished by the Sentencing Reform Act. Our dissent-
ing colleague goes even further. Citing authority granted to
the Bureau of Prisons to award "good time" credits as well as
the abolition of parole, Judge Silberman argues that "the very
passage" of the Sentencing Reform Act "implicitly" precluded
consideration of post-conviction rehabilitation, concluding that
"it would not be permissible for even the Sentencing Commis-
sion itself to authorize such a departure." Dis. at 1. Certain-
ly to the extent the Act clearly limits sentencing discretion,
courts must act accordingly, regardless of the Guidelines'
silence. For example, if the Guidelines contained no prohibi-
tion on consideration of an offender's race as a departure
factor, see U.S.S.G. s 5H1.10, the Act's direction that the
Commission ensure the Guidelines' neutrality as to offender
race, see 28 U.S.C. s 994(d) (1994)--if not the Fifth Amend-
ment--would clearly prevent such departures. But neither
the Act nor any other provision of law we have found explicit-
ly bars consideration of post-conviction rehabilitation.

We think the government and the dissent, moreover, misin-
terpret the implications to be drawn from the abolition of
parole and overlook significant differences between parole
and resentencing. Congress ended parole largely to remedy
significant problems flowing from the fact that district court
sentences for terms of imprisonment were generally open-
ended, with the United States Parole Commission actually
determining an offender's date of release. As a result, "the
offender, the victim, and society" were unaware of the prison
release date regardless of the nominal term imposed. S. Rep.
No. 98-225, at 46. Split authority between the Parole Com-
mission and the courts also produced sentencing inconsistency
because judges were "tempted to sentence a defendant on the
basis of when they believe[d] the Parole Commission" might
release the defendant. Id. To solve these problems, the
Sentencing Reform Act vested sole sentencing responsibility
in district courts, see Mistretta v. United States, 488 U.S. 361,

367 (1989) (the Act "consolidates the power that had been
exercised by the sentencing judge and the Parole Commission
to decide what punishment an offender should suffer"), and
instituted "real-time" sentencing, ensuring that the sentence
imposed by the district court will actually be served, see id.
(the Act "makes all sentences basically determinate" with
prisoners released at the completion of their sentence "re-
duced only by any credit earned by good behavior while in
custody"); see also United States v. Parker, 936 F.2d 950, 956
(7th Cir. 1991) (discussing the real-time nature of sentencing
under the Guidelines); U.S.S.G. ch. 1, pt. A, intro. cmt. 3 (in
abolishing the parole system, "Congress first sought honesty
in sentencing").

Allowing district courts to depart from the Guidelines for
post-conviction rehabilitation implicates none of the concerns
that primarily led Congress to abolish parole. There will be
no mystery about the sentences defendants will serve because
sentences that take account of post-conviction rehabilitation
will be entirely determinate. And because the same district
court that imposed the initial, erroneous sentence will impose
the second, correct sentence, such sentences pose no risk of
judicial second-guessing.

Nor would consideration of post-conviction rehabilitation
"infringe upon" the Bureau's responsibility for awarding good
time credit under 18 U.S.C. s 3624. See Dis. at 1. While
considerations that inform the Bureau of Prisons' exercise of
discretion in awarding good time credits, see 18 U.S.C.
s 3624(b)(1) (in awarding good time credits, the Bureau of
Prisons should consider whether "the prisoner has displayed
exemplary compliance with institutional disciplinary regula-
tions"); id. ("In awarding credit under this section, the
Bureau shall consider whether the prisoner ... has earned,
or is making satisfactory progress toward earning, a high
school diploma or an equivalent degree."), may parallel some
factors sentencing courts could weigh for post-conviction re-
habilitation departures, awards of good time credits differ
from post-conviction departures in several important re-
spects. For one thing, good time credits simply reduce time
served for behavior expected of all prisoners, see United

States v. Brown, 59 F.3d 102, 105 (9th Cir. 1995) (noting that
"compliance with the conditions for awarding good time credit
is one of the terms of the original sentence"), while depar-
tures based on rehabilitation alter the very terms of imprison-
ment; indeed, prisoners receiving departures at resentencing
will remain eligible for future good time credits. Moreover,
from Department of Justice statistics showing that prisoners
eligible for good time credits (i.e., their sentences exceeded
one year but were not for life, see 18 U.S.C. s 3624(b)(1))
served between eighty-seven and ninety percent of their
sentences, see United States Department of Justice, Bureau
of Justice Statistics, Compendium of Federal Justice Statis-
tics, 1995, at 83 (1995) (studying prisoners released between
October 1, 1994 and September 30, 1995), it is clear that most
prisoners receive good time credits, cf. United States v.
Tocco, 135 F.3d 116, 132 (2d Cir.) (assuming in the context of
calculating a maximum prison term that prisoners will gener-
ally comply with prison regulations and therefore receive
good time credit despite Bureau of Prison discretion), cert.
denied, 118 S. Ct. 1581 (1998). As we hold in section IV,
however, post-conviction rehabilitation departures will be
available only in extraordinary cases. Departures at resen-
tencing for post-conviction rehabilitation thus no more repre-
sent awards of good time credit than they amount to grants of
parole. Cf. Core, 125 F.3d at 78 (arguing that section
3624(b)'s good time credit provision has no bearing on depar-
tures based on post-conviction rehabilitation).

At two points in its brief, the government points to Federal
Rule of Criminal Procedure 35, suggesting that Congress'
1984 modification of the rule provides another ground to
prohibit departures based upon post-conviction rehabilitation.
But that amendment merely deleted Rule 35's reference to a
district court's discretion to reduce sentences on its own
motion within 120 days of certain specified contingencies,
compare Fed. R. Crim. P. 35(b) (1986) (amended 1987) (allow-
ing courts on their own motion to modify sentences already
imposed in certain circumstances), with Fed. R. Crim. P. 35(b)
(1998) (allowing courts to modify sentences already imposed
on motion of government for substantial assistance); it said

nothing about departures at resentencing in response to a
defendant's motion. The government has identified nothing
in either the Act or its legislative history, see S. Rep. No.
98-225, at 158 (discussing the amendment to Rule 35 without
mentioning district court departure authority), suggesting
that this amendment limits district court authority to consider
all relevant information at resentencing.

For its final effort to distinguish Koon, the government, as
well as our dissenting colleague, see Dis. at 2, argues that
because all defendants can potentially seek departure based
on pre-initial sentencing rehabilitation, while only those de-
fendants "lucky enough" to be resentenced following appeal
can seek departure for post-conviction rehabilitation, Appel-
lee's Br. at 14, allowing Rhodes' departure would contravene
the Guidelines' goal of treating similarly situated defendants
alike. Any disparity that might result from allowing the
district court to consider post-conviction rehabilitation, how-
ever, flows not from Rhodes being "lucky enough" to be
resentenced, or from some "random" event, Dis. at 2, but
rather from the reversal of his section 924(c) conviction. The
Sentencing Reform Act seeks to eliminate not all sentencing
disparities, but only "unwarranted" disparities, see 18 U.S.C.
s 3553(a)(6) (sentencing judges must consider "the need to
avoid unwarranted sentence disparities"); 28 U.S.C.
s 991(b)(1)(B) (directing Commission to "avoid[ ] unwarrant-
ed sentencing disparities among defendants with similar rec-
ords who have been found guilty of similar criminal conduct");
id. s 994(f) (Commission should "reduc[e] unwarranted sen-
tence disparities"). Distinguishing between prisoners whose
convictions are reversed on appeal and all other prisoners
hardly seems "unwarranted." Cf. United States v. LaBonte,
117 S. Ct. 1673, 1679 (1997) (disparity arising from normal
exercise of prosecutorial discretion not unwarranted).

Considering post-conviction rehabilitation, moreover, is per-
fectly consistent with the fact that Congress, notwithstanding
its concern about reducing unwarranted sentencing disparity,
directed the Sentencing Commission to maintain "sufficient
flexibility to permit individualized sentences." 28 U.S.C.
s 991(b)(1)(B). "It has been uniform and constant in the

federal judicial tradition for the sentencing judge to consider
every convicted person as an individual and every case as a
unique study in the human failings that sometimes mitigate,
sometimes magnify, the crime and the punishment to ensue."
Koon, 518 U.S. at 113. In enacting the Sentencing Reform
Act, Congress preserved the long-standing rule that "[n]o
limitation shall be placed on the information concerning the
background, character, and conduct of a person convicted of
an offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sen-
tence." 18 U.S.C. s 3661 (emphasis added); see also United
States v. Wishnefsky, 7 F.3d 254, 256 (D.C. Cir. 1993) (noting
that the Act recodified 18 U.S.C. s 3577 into section 3661,
without change); accord 18 U.S.C. s 3553(a)(1) (sentencing
courts shall consider "the nature and circumstances of the
offense and the history and characteristics of the defendant")
(emphasis added). We know of no reason why sentencing
courts' broad mandate under sections 3553(a) and 3661 to
sentence defendants as they stand before the court--whether
after plea bargaining, trial, or appeal--should exclude consid-
eration of post-conviction rehabilitation. See Core, 125 F.3d
at 77 (at resentencing, district courts have obligation to
consider defendants as they stand before the court "at that
time").

To be sure, both the Sentencing Reform Act and its
legislative history reflect congressional concern with the fail-
ure of rehabilitation as the central goal of sentencing. See,
e.g., 28 U.S.C. s 994(k) (directing the Commission to "insure
that the guidelines reflect the inappropriateness of imposing a
sentence to a term of imprisonment for the purpose of
rehabilitating the defendant"); S. Rep. No. 98-225, at 40
(citing studies rejecting basing parole decisions on rehabilita-
tion and concluding that "[w]e know too little about human
behavior to be able to rehabilitate individuals on a routine
basis or even to determine accurately whether or when a
particular prisoner has been rehabilitated"); id. at 53 n.74
(indicating in a footnote that Congress considered the aboli-
tion of parole consistent with doubts about the efficacy of
rehabilitation and the difficulty of accurately gauging rehabili-

tation). Yet, in many places the Act takes rehabilitation into
account. In addition to providing good time credits in part
for rehabilitative efforts, the Act requires sentencing courts
to consider "the need for the sentence imposed ... to provide
the defendant with needed educational and vocational training
... or other correctional treatment." 18 U.S.C.
s 3553(a)(2)(D); see also United States v. Harrington, 947
F.2d 956, 959 n.6 (D.C. Cir. 1991) ("While Congress ...
rejected imprisonment as a means to achieve rehabilitation, it
also recognized 'correctional treatment' as a proper goal of
sentencing."). The Guidelines themselves describe the "basic
purposes of criminal punishment" promoted by the Act as
"deterrence, incapacitation, just punishment, and rehabilita-
tion," U.S.S.G. ch. 1, pt. A intro. cmt. 2 (emphasis added), and
explicitly mention rehabilitation as one factor to be weighed
in the acceptance of responsibility departure, section 3E1.1.
See U.S.S.G. s 3E.1.1 n.1(g); see also section IV, infra.
Given rehabilitation's continuing role in sentencing, and in the
absence of any contrary directive from the Commission, we
decline to read the Act's abolition of parole and restructuring
of good time credits as definitive congressional statements
that district courts may not account for post-conviction reha-
bilitation. Although the Commission may someday choose to
prohibit departures based on post-conviction rehabilitation,
we have no authority to make that decision for it. See Koon,
518 U.S. at 106-09.

IV

Having concluded that nothing in the Guidelines prohibits
post-conviction rehabilitation departures, we move to Koon's
next set of questions in order to determine the threshold for
departure Rhodes must meet and the method of analysis the
district court should undertake. See Koon, 518 U.S. at 95.
Koon classified permissible departure factors into three gen-
eral categories: encouraged, discouraged, or unmentioned in
the Guidelines. If the Guidelines encourage departures
based on a given factor, sentencing courts may depart "if the
applicable Guideline does not already take it into account."

Id. at 96. If the Guidelines discourage departures based on
the factor, or if the factor is encouraged but already taken
into account by the applicable Guideline, courts may 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." Id. If the factor is
"unmentioned" in the Guidelines, courts must, "after consid-
ering the 'structure and theory of both relevant individual
guidelines and the Guidelines taken as a whole,' decide wheth-
er it is sufficient to take the case out of the Guideline's
heartland." Id. (quoting Rivera, 994 F.2d at 949). Depar-
tures based on unmentioned factors should be " 'highly infre-
quent.' " Id. (quoting U.S.S.G. ch. 1, pt. A).

Post-conviction rehabilitation does not fit easily into Koon's
framework. Koon focused largely on those sections of the
Guidelines that give fairly clear departure instructions. Id.
at 94-95. For example, the Court cites Guidelines that use
language broadly encouraging departures, like section 5K2.10,
which directs that "[i]f the victim's wrongful conduct contrib-
uted significantly to provoking the offense behavior, the court
may reduce the sentence below the guideline range to reflect
the nature and circumstances of the offense," U.S.S.G.
s 5K2.10 (emphasis added). See Koon, 518 U.S. at 94. Koon
also referred to Guidelines broadly discouraging departures,
like section 5H1.6--"Family ties and responsibilities and com-
munity ties are not ordinarily relevant in determining wheth-
er a sentence should be outside the applicable guideline
range," U.S.S.G. s 5H1.6 (emphasis added)--and section
5H1.2--"Education and vocational skills are not ordinarily
relevant in determining whether a sentence should be outside
the applicable guideline range," id. s 5H1.2 (emphasis added).
See Koon, 518 U.S. at 95.

The Guidelines offer no such clear instruction about post-
conviction rehabilitation. Although the Guidelines mention
"post-offense rehabilitative efforts," U.S.S.G. s 3E.1.1 n.1(g),
a concept linguistically broad enough to cover post-conviction
rehabilitation, that reference appears in the acceptance of
responsibility departure, which generally applies only to pre-
trial efforts, see id. n.2 ("[A] determination that a defendant

has accepted responsibility will be based primarily upon pre-
trial statements and conduct."). Post-conviction rehabilita-
tion is thus neither clearly "encouraged" nor "discouraged,"
as Koon used those terms. And because of section 3E1.1's
reference to "post-offense rehabilitative efforts," it is also not
"unmentioned."

Faced with this quandary, the Third Circuit, relying on a
Fourth Circuit decision, United States v. Brock, 108 F.3d 31
(4th Cir. 1997), treated post-conviction rehabilitation as "al-
ready taken into account" by the commentary to the accep-
tance of responsibility departure. Sally, 116 F.3d at 80
(citing Brock, 108 F.3d at 35). Brock, in turn, drew this
approach from an earlier Fourth Circuit decision, United
States v. Hairston, 96 F.3d 102 (4th Cir. 1996), cert. denied,
117 S. Ct. 956 (1997), which considered whether district
courts could depart based on a defendant's restitution despite
the fact that application note 1(c) to the acceptance of respon-
sibility departure mentions restitution. Id. at 107 (citing
U.S.S.G. s 3E.1.1 n.1(c), which lists "voluntary payment of
restitution prior to adjudication of guilt" as a consideration in
evaluating acceptance of responsibility). According to Hair-
ston, the listing of a factor as supporting a reduction within
the Guidelines "implies" either "that the factor is discouraged
as a basis for departure from the Guidelines, or alternatively,
that the factor is encouraged--at least as a basis for reduc-
tion--but has already been taken into account." Id. (empha-
sis omitted). Hairston, Sally, and Brock thus found that
mentioned factors already taken into account in an explicit
departure Guideline are, at least implicitly, analogous to
Koon's second category.

Turning to the question of the circumstances under which a
district court can depart, and building on Hairston, Brock
concluded that if a factor is "listed by the Commission as one
appropriately considered in applying an adjustment to the
guidelines, a court may depart only if the factor is present to
such an exceptional or extraordinary degree that it removes
the case from the heartland of situations to which the guide-
line was fashioned to apply." Brock, 108 F.3d at 35. For
district courts to depart based on such a factor, Brock held,

the factor must be present "to such an exceptional degree
that the situation cannot be considered typical of those cir-
cumstances" in which the explicit departure--rehabilitation in
the context of acceptance of responsibility--is normally grant-
ed. Id. Sally, in turn, applied this rationale to the issue we
face in this case--post-offense rehabilitative efforts that occur
post-conviction. Sally, 116 F.3d at 80.

We think the Third Circuit's approach makes sense and
therefore adopt its requirement that before district courts can
depart based on post-conviction rehabilitation, that factor
must be present " 'to such an exceptional degree that the
situation cannot be considered typical of those circumstances
in which the acceptance of responsibility adjustment is grant-
ed.' " Id. (quoting Brock, 108 F.2d at 35). Treating post-
offense rehabilitation as mentioned by a departure within the
Guidelines, thus implying that such departures are either
"discouraged" or "encouraged but already taken into ac-
count," is not only faithful to Koon, but also accurately
reflects the content of the Guidelines. We read the Commis-
sion's mentioning of a factor within the context of a relatively
narrow departure Guideline to mean that the factor repre-
sents an appropriate sentencing consideration, as well as to
imply that courts may depart beyond the terms of the Guide-
line, but only if the factor is present to an "unusual" extent.

Applying this standard to the facts of this case--that is,
determining whether Rhodes' work, education, and other
rehabilitative activities exceed "to an exceptional degree" the
rehabilitative efforts of all defendants, cf., e.g., Federal Bu-
reau of Prisons, U.S. Department of Justice, Program State-
ment No. 5251.04 %57 1(a) (1996) (requiring federal prisoners
"physically and mentally able to work ... to participate in [a]
work program"); Federal Bureau of Prisons, U.S. Depart-
ment of Justice, Program Statement No. 5350.25 %57 1 (1997)
(requiring prisoners who have neither a General Educational
Development (GED) credential nor high school diploma "to
attend an adult literacy program for a minimum of 240
instructional hours or until a GED is achieved")--is a ques-
tion Koon directs us to leave, at least in the first instance, to
the district court. Koon, 518 U.S. at 98. Informed by their

"vantage point and day-to-day experience in criminal sentenc-
ing," district courts are best equipped to determine whether a
case falls outside the "heartland." Id. Because district
courts "see so many more Guidelines cases than appellate
courts do," we defer to their "institutional advantage ... in
making these sorts of determinations," subject, of course, to
review for abuse of discretion. Id.

This case is remanded to the district court for further
proceedings consistent with this opinion.

So ordered.

Silberman, Circuit Judge, dissenting: I agree with the
majority that the Sentencing Guidelines do not address the
question presented--whether a district court may consider a
prisoner's post-conviction conduct when it resentences a pris-
oner following an appeal. But I do not believe this case is
controlled by the standards set forth in Koon v. United
States, 518 U.S. 81 (1996), that govern guideline departures.
But see United States v. Core, 125 F.3d 74 (2d Cir. 1997);
United States v. Sally, 116 F.3d 76 (3d Cir. 1997). I think the
very passage of the Sentencing Reform Act of 1984, which
abolished parole and substantially reduced and restructured
good behavior adjustments, implicitly precludes a district
court from considering post-conviction behavior in imposing
sentences. Under that analysis, it would not be permissible
for even the Sentencing Commission itself to authorize such a
departure.

Congress chose to take account of a defendant's rehabilita-
tive efforts in a different and more limited way than it had
under the parole system. The Bureau of Prisons may award
good-time credits to a prisoner who has shown "exemplary
compliance with institutional disciplinary regulations," includ-
ing progress toward earning a degree. 18 U.S.C. s 3624
(1994). This is just the sort of determination that Rhodes has
asked the district court to make, arguing that "he has earned
his GED, taken college level courses, consistently received
better than average to much better than average work re-
ports, paid the full $150 assessment imposed by the District
Court ... completed one drug rehabilitation program ... and
taken advantage of every other opportunity for rehabilitation
presented to him while incarcerated." Rather than operating
within the framework that Congress has provided, appellant
has asked the district court to infringe upon the Bureau's
role. See United States v. Evans, 1 F.3d 654 (7th Cir. 1993)
(per curiam) ("[I]t is the Bureau of Prisons, not the court,
that determines whether a federal prisoner should receive
good time credit.")

One of the primary goals of the Act was to narrow the wide
disparity in sentences imposed on similarly situated defen-
dants. U.S. Sentencing Guidelines Manual, ch.1, pt. A,
intro. cmt. 3 (1997). To be sure, the Act requires a court to
consider the individual circumstances of the defendant as well
as the need for uniformity in sentencing. 18 U.S.C. s 3553(a)
(1994). Post-conviction good conduct, however, is not a cir-
cumstance particular to appellant. Rhodes will have the
chance to secure a downward departure that is unavailable to
other prisoners with identical, or even superior, prison rec-
ords. The Sentencing Reform Act seeks to end the sort of
unfairness that results from allowing some defendants to gain
consideration that others cannot. When sentencing was al-
most totally discretionary, some judges relaxed sentences for
reasons that others refused even to consider. Rhodes' posi-
tion injects the same unfairness back into the process. The
line between those who will have the opportunity to make his
argument and those who will not is totally random. Only
those prisoners who are lucky enough to have a sentencing
judge who commits legal error can benefit from their post-
conviction conduct.

Accordingly, I respectfully dissent.