UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

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No. 92-3028 _________________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

STEVEN T. WILLIAMS,

Defendant-Appellant.

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Appeal from the United States District Court for the Eastern District of Louisiana _________________________________________________________________ (September 21, 1992)

Before REYNALDO G. GARZA, DAVIS, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

Claiming that the crime for which he was convicted was a one-

time act of "aberrant behavior", Steven T. Williams challenges the

sentencing court's refusal to grant him a downward departure on

that basis. Assuming arguendo that such a departure was

authorized, it was not justified under the facts of this case. We

AFFIRM.

I.

On August 1, 1991, Williams entered a bank and presented a

teller with two demand notes. One read:

Give me all your money in your draw. Don't be no hero. Because if you do you will see me again. I want 3 sacks of $100.00 bills and all the rest of your money. Put it up on the counter and no tricks and no bums. Give the note back and close your booth and walk away.

Thank you.

The second, written on a bank withdrawal slip dated July 29, 1991,

stated: "All of your money ... all of your money", and was signed

"John Doe".

The teller handed Williams a bag containing approximately

$2700 and a dye pack. Shortly after he left the bank, the pack

exploded, causing him to drop the bag. Williams then left the

scene in a car which was traced to his sister. Upon returning it

to his sister's house later that day, he was arrested and read his

rights, admitted robbing the bank, and consented to a search of his

home, which revealed clothes matching the description of those worn

by the perpetrator.

Williams pleaded guilty. Before sentencing, he requested a

downward departure from the guidelines range, contending that his

actions in robbing the bank were spontaneous and constituted

aberrant behavior. At the sentencing hearing in January 1992, the

district court denied the motion, questioning its authority to

depart on that basis, but finding that, even if such authority

existed, the departure was inappropriate in this case. Williams

was sentenced at the bottom of the guidelines range to, inter alia,

33 months in prison.

II.

Williams contends that the district court refused to depart

only because it did not believe it had authority to do so. The

2 government responds that an aberrant behavior departure cannot be

employed when the defendant has committed a violent crime. We do

not reach whether it is authorized in such cases, because the

district court made a factual finding that Williams' behavior was

not aberrant.*

At the sentencing hearing, the district judge stated that he

did not think that he had the authority to so depart, but later

stated that Williams' actions did "not qualify as aberrant behavior

justifying departure". As with any finding of fact, a district

court's determination that a circumstance which might warrant

departure does not exist is reviewed for clear error. See United

States v. Headrick,

(5th Cir. 1992).

Although the Guidelines do not define "aberrant behavior", we

are most certain that it requires more than an act which is merely

a first offense or "out of character" for the defendant. Accord

United States v. Carey,

(7th Cir. 1990).

Instead, those considerations are taken into account in calculating

the defendant's criminal history category. U.S.S.G. Ch.4, Pt.A,

intro. comment. & § 4A1.1. (For Williams, that category was I; the

PSR stated that he had no criminal history points, in part because

he did not have a prior criminal conviction.) As the Seventh

Circuit has stated,

* The term "aberrant behavior" appears in the Guidelines only in an introductory section, "Probation and Split Sentences", where the Sentencing Commission states that it "has not dealt with 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).

3 there must be some element of abnormal or exceptional behavior.... A single act of aberrant behavior ... generally contemplates a spontaneous and seemingly thoughtless act rather than one which was the result of substantial planning because an act which occurs suddenly and is not the result of a continued reflective process is one for which the defendant may be arguably less accountable.

Carey,

.

Williams' act appears neither spontaneous nor thoughtless.

For example, one of his demand notes was dated several days before

the robbery. We do not find clear error in the district court's

determination that this behavior does not qualify as aberrant.

III.

Accordingly, the sentence is

AFFIRMED.

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