dissenting.
It is said that a judge writes a dissent when the sense of outrage exceeds his feelings of inertia. Here I dissent with strong feelings as I harbor little doubt that the majority is clearly wrong on both the law and the facts. The panel has sided with the position of an Assistant United States Attorney (AUSA) who has not provided any evidence in support of his contentions. The arguments advanced by the AUSA are specious and suspect. The majority accepts these arguments despite the presence of a record upon which we should routinely affirm the district court, and case law that limits the ability of appellate judges to substitute their views for those of a better-situated district judge.
On January 23, 2001, the district court held the first sentencing hearing. Patterson’s counsel made an oral motion for departure based on three contentions: (1) Patterson’s category III criminal history score overstated the seriousness of her criminal record;5 (2) Patterson had recently been diagnosed with a heart condition, congestive heart failure, that required a doctor’s continuing care, medication, and a strict diet; and (3) Patterson had extraordinary family ties and a very young infant for whom she was the sole caretaker. The trial court granted a departure based on Patterson’s serious medical condition and her having a very young child.
This circuit reversed in an unpublished opinion. At the second sentencing hearing on January 7, 2002, the trial court allowed Patterson to present evidence of her post-offense rehabilitation as a possible ground for departure. Patterson called three witnesses. The government called a probation officer who handled Patterson’s case after the first sentencing.
The majority opinion outlines the unre-futed testimony of three character witnesses who took the stand on Patterson’s behalf. After listening to these witnesses, considering the totality of the circumstances, and assessing Patterson’s efforts to rehabilitate herself, the trial court found that her efforts were sufficiently extraordinary to warrant a downward departure to probation.
The majority contends that the district court abused its discretion in finding that Patterson’s behavior constituted extraordinary post-offense rehabilitation. Rather than deferring to the finder of fact, the majority substitutes its own view of the facts and finds “the record in this case is devoid of any facts” that support departure. This determination comes a mere four paragraphs after the majority’s recitation of testimony from Patterson’s three *1051character witnesses. The majority is simply adopting the government’s argument that Patterson did “nothing more than lead a lawful life after her arrest.”
This type of determination is precisely the sort that should be left to the sound discretion of the district court. As the Supreme Court recognized in Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), “A district court’s decision to depart from the Guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.” Koon laid out the proper role for the sentencing court in resolving whether departure is warranted by the facts of an individual case:
To resolve this question, the district court must make a refined assessment of the many facts bearing on the outcome, informed by its vantage point and day-to-day experience in criminal sentencing. Whether 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, are matters determined in large part by comparison with the facts of other Guidelines cases. District courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines cases than appellate courts do.
Id.
Under the law of this circuit, because the acceptance-of-responsibility guideline takes post-offense rehabilitation efforts into account, departure under § 5K2.0 is warranted only if the defendant’s efforts are exceptional enough to be atypical of the cases in which the acceptance-of-responsibility reduction is usually granted. United States v. DeShon, 183 F.3d 888, 889 (8th Cir.1999) (citing United States v. Kapitzke, 130 F.3d 820, 823 (8th Cir.1997)). The defendant’s conduct from arrest up to the time of the sentencing can, if sufficiently atypical, furnish an appropriate basis for downward departure. United States v. Sims, 174 F.3d 911, 912 (8th Cir.1999). The district court in this case considered Patterson’s rehabilitative efforts during the eight-month period between her arrest and initial sentencing.6 Having reviewed those efforts, the court made a clear finding that Patterson’s conduct was highly atypical, and warranted departure.
In reviewing a downward departure, the majority seems- to have lost sight of the fact that “we are dealing with a fact-based judgment call that falls within the district court’s sentencing discretion, and we are not permitted to substitute our judgment *1052for that of the sentencing courts.” Kapitzke, 130 F.3d at 824 (citing Koon).
The district court heard testimony from three witnesses about Patterson’s tremendous efforts at self-improvement, her return to an active participant in her children’s lives, her role in earing for family members, and her efforts to overcome drug addiction. The court also had before it the Presentence Report, which indicates that Patterson was married at age thirteen and had one child, she was married again at age eighteen and had another child. Despite having at least one child, Patterson graduated from high school with a 3.86 GPA in May 1990. In the view of the district court, a view to which we owe due deference, Patterson did far more than simply obey the law; she completely turned her life around. It is possible to obey the law without having a positive impact on the lives of others, contributing to society, and reforming one’s life.
This case should be treated like the cases of United States v. Newlon, 212 F.3d 423 (8th Cir.2000), and DeShon, where the district court’s decision to depart for extraordinary post-offense rehabilitation was affirmed by the Eighth Circuit. In both those cases, the panels stated essentially: we might not have reached the same decision, but we see nothing to convince us that the district court abused its discretion. 212 F.3d at 424; 183 F.3d at 891.
Neither the AUSA nor the majority can point to any evidence that rebuts the fact that after her arrest Patterson reformed her life. Indeed, the government’s brief concedes that she became an attentive mother and aided her own mother and grandparents with chores. These post-offense rehabilitative efforts may be no big deal in the eyes of the AUSA, but the district court had a different view, and we do grievous error to the law when we adopt the views of an extremely adversarial litigant over the position of an able district judge.
The AUSA’s arguments, unsupported by facts or dispositive law, are an unworthy basis for reversal. They may well spring from improper motives. Just after the district court imposed the sentence for a second time and the government announced that it would likely appeal the sentence again, the court made these statements:
THE COURT: Well, let me tell you something. You’ve got your job, I’ve got my job. But I want to tell you something. I think the Government is making a horrendous mistake in this thing, and I think it’s — I think it’s really vindictive, and I—
[AUSA]: Your Honor,—
THE COURT: — think your reason is vindictive is because she was a cooperating witness, wasn’t she? Didn’t she cooperate?
[AUSA]: She had attempted to.
THE COURT: Yeah.
[AUSA]: And what she is charged with are offenses when she was selling drugs while she was—
THE COURT: I know.
[AUSA]: — trying to be—
THE COURT: And so you all are hacked off at her because you couldn’t use her as a witness.
[AUSA]: Your Honor,—
THE COURT: You know what, let me tell you something.
[AUSA]: Your Honor, I don’t believe—
THE COURT: You know something?
[AUSA]: — there’s any evidence, any evidence, to that effect.
THE COURT: Well, it’s — I know— you know, it just — I think it’s — I just— you know, well, I’ve said what I’m going to say. I just think — here, put that in the file. I just think it’s an outrage that *1053the Government would act this way about this case. Well, let’s see.
(Tr. 1/7/02 at 25-26).
Thus, contrary to fact and law, the majority now orders that this defendant be imprisoned. Who suffers? Obviously, Ms. Patterson, but also her children, her moth-' er, her grandparents, and the public, will bear the cost of imprisoning her and perhaps her minor children when she could be caring for her family and continuing her efforts to become a contributing member of our society.
Ordering a prison term for this defendant makes no sense whatsoever. It flies in the face of reason, logic, and the law to successfully argue that it may not be extraordinary for a person addicted to drugs to confront that addiction and halt destructive and harmful behavior patterns and change one’s life so as to play a positive role in her family’s life. That sort of argument was made by the AUSA and unfortunately accepted as truth in this case by the majority.7
. Her criminal history is category III because she had one point for careless driving; one point for possession of drugs and when they caught her on the instant drug distribution, she was serving a sentence of probation for possession of drug paraphernalia. The sentencing court did not address this issue.
. The government introduced evidence of Patterson's relapse with drugs while on probation after the first sentencing. The defense objected to consideration of this evidence unless the court also considered positive evidence of Patterson's rehabilitative efforts post-sentencing. According to the probation officer, after her positive urinalysis, Patterson willingly participated in and followed through with a treatment program.
The district court properly limited its review to the eight-month period between Patterson's arrest and her first sentencing. United States v. Sims, 174 F.3d 911, 913 (8th Cir.1999) (post-sentencing rehabilitative conduct is not an appropriate basis for downward departure at a resentencing). Furthermore, the district court did consider Patterson's relapse with drugs, but found sufficient basis to depart anyway because Patterson appears to be overcoming her drug problem. The court directly asked the probation officer if he- "[knew] how hard it is to get off drugs. You've seen a lot of it, haven't you?” (Tr. 1/7/02 at 23). This reflects the common understanding, acknowledged by the majority, that drug addiction is not easily overcome.
. I respond briefly to notes 2 and 3 of the opinion of my distinguished colleagues on the majority.
The issue is not whether judges like or dislike the guidelines as a method of imposing a prison sentence. As appellate judges we are obligated to affirm or reverse a district court regardless of personal views, see, e.g., United States v. Chavez, 230 F.3d at 1091-93 (8th Cir.2000) (Bright, J. concurring), the case cited by the majority in footnote 2.
The guidelines do not completely remove judicial discretion. As the Guideline Manual advises
The Commission intends the sentencing courts to treat each guideline as carving out a "heartland,” a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.
1995 U.S.S.G., Ch. 1, Pt.A, intro, comment. 4(b)(quoted and approved in Koon v. United States, 518 U.S. 81, 92, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)).
Articles written after the adoption of the guidelines and commenting on them have observed that the sentencing judge retains "significant discretion.” See Honorable Gerald Bard Tjoflat, The Untapped Potential for Judicial Discretion Under the Federal Sentencing Guidelines: Advice for Counsel, Fed. Probation, Dec. 1991, at 4; and Honorable Edward R. Becker, Flexibility and Discretion Available to the Sentencing Judge Under the Guidelines Regime, Fed. Probation, Dec. 1991, at 10. The view of the authors of those articles is that some judicial discretion remains and should be exercised by judges under the guidelines system. These views are important as these judges were members of the Probation Committee of the Judicial Conference of the United States during the consideration and adoption of the guidelines and Judge Tjoflat, as chairman of the committee, testified and advised Congress on the proposals. Judge Becker also later served as chairman of the Judicial Conference Committee on Criminal Law and Probation Administration and is considered an authority in the area of sentencing.
The record here is of extreme importance. That record can be read in only one light. This woman indeed turned her life around between arrest and sentence. Contrary to the surmise of the majority, that does not often happen to those caught up in drug addiction.
Thus, the sentencing judge could and did treat the matter as an atypical case. The prosecutor offered no evidence-only an argument that every arrestee should and can turn his or her life around. The majority has deferred to this argument. With all due respect, I believe this argument is without support in the record.
I add one additional comment about proper application of the guidelines. Recently (December 2002), the United States Sentencing Commission published a "Summary Report” on a survey of Article III judges. This summary is a component of the fifteen-year report on the United States Sentencing Commission's legislative mandate. I quote from that report:
*1054Areas of Least Effectiveness in Meeting the Sentencing Goals
A plurality of both responding district and circuit court judges indicated that there were two areas in which the guidelines were less effective in achieving the purposes of sentencing:
•— providing defendants with training, medical care, or treatment in the most effective manner, where rehabilitation was appropriate (Q5) and
— maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors (Q9).
Approximately 40 percent of responding district court judges, and slightly more responding circuit court judges, reported that few of their cases met these sentencing goals.
United States Sentencing Commission, Summary Report at 2 (Dec.2002).
The district court used discretion in granting probation. This was just and proper and supported by the facts and the law. The district judge should be affirmed.