For that reason, in reviewing combination cases, we have considered the totality of the circumstances and the interplay between or among the various factors, not whether the individual factors in the mix could in themselves constitute a ground for departure. "[I]t will be how the particular pieces fit together, converge, and influence each other that will lead to the correct decisions." Cook, 938 F.2d at 153; see also United States v. Fairless, 975 F.2d 664, 669 (9th Cir. 1992); United States v. Floyd, 945 F.2d 1096 (9th Cir. 1991), corrected, 956 F.2d 203 (9th Cir. 1992), and subsequently superseded, U.S.S.G. ยง 5H1.12; United States v. Takai, 941 F.2d 738, 743 (9th Cir. 1991).
We have held that a "unique combination of factors" may constitute a "circumstance" that mitigates. Id.; see also United States v. Floyd, 945 F.2d 1096, 1099 (9th Cir. 1991), corrected, 956 F.2d 203 (9th Cir. 1992), and subsequently superseded, U.S.S.G. ยง 5H1.12; Anders, 956 F.2d at 911-14. However, although a district court may grant a departure based on a combination of factors that do not individually justify a departure, this policy does not permit the district court to consider in the mix factors that should not be part of the consideration. "[T]he factors that go into [a] complex must be those at least authorized, and certainly not expressly prohibited, by the Sentencing Guidelines."
That had been a proper ground for departure at the time Johns committed the offense. See United States v. Floyd, 945 F.2d 1096, 1098-1102 (9th Cir. 1991), amended, 956 F.2d 203 (9th Cir. 1992), overruled on other grounds, 990 F.2d 501 (9th Cir. 1993) (en banc). However, by the date of Johns' sentencing the November 1, 1992 amendments to the Guidelines had gone into effect.
Second, the factual findings supporting the existence of the circumstance are reviewed for clear error, and third, the court must determine whether the extent of the departure was an abuse of discretion. Id. at 747; see also United States v. Floyd, 945 F.2d 1096, 1098-99 (9th Cir. 1991), amended, 956 F.2d 203 (9th Cir. 1992). A district court's reasons for departure should be viewed as a "complex of factors":
The government wisely conceded this point at oral argument. We must, however, first confront our earlier opinion in United States v. Floyd, 945 F.2d 1096 (9th Cir. 1991), amended, 956 F.2d 203 (9th Cir. 1992). In Floyd, the defendant was indicted for conspiracy to distribute cocaine.
In evaluating the district court's decision to depart downward from the Sentencing Guidelines range, we review de novo the district court's determination that it had the authority to depart. United States v. Floyd, 945 F.2d 1096, 1098 (9th Cir. 1991), amended, 956 F.2d 203 (9th Cir. 1992); see also United States v. Lira-Barraza, 941 F.2d 745, 746 (9th Cir. 1991) (en banc). We review the factual findings upon which the departure is predicated for clear error and the extent of the departure for reasonableness. Floyd, 945 F.2d at 1099; Lira-Barraza, 941 F.2d at 746-47.
The legislative history indicates that Congress took this approach in order "to guard against the inappropriate use of incarceration for those defendants who lack education, employment, and stabilizing ties." United States v. Floyd, 945 F.2d 1096, 1101 (1991), amended by 956 F.2d 203 (9th Cir. 1992) (quoting S.Rep. No. 98-225, at 175 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3358, on 28 U.S.C. ยง 994). The only conclusion one can draw is this: Congress and the Commission wanted courts to interpret these provisions as they sought to individualize sentences, to create a common law of sentencing defining the boundaries of typicality and atypicality.
The defendant's lack of guidance, in combination with other factors, is a proper basis for a downward departure. See United States v. Floyd, 945 F.2d 1096 (9th Cir. 1991), amended, 956 F.2d 203 (2d Cir. 1992). The criminal act in this case was an aberrant one for the defendant.