25 F.3d 343

CELEBREZZE, Senior Circuit Judge,
concurring in part, dissenting in part.
I concur in the majority opinion’s holding that DeMonte’s extraordinary degree of cooperation with the government was sufficiently unusual to support a downward departure. I must, however, respectfully dissent from that part of the majority opinion which finds that the downward departure given to DeMonte was error in so far as the district court judge made his decision to downwardly depart based, upon DeMonte’s acts of restitution. I write separately to more fully explain why I would affirm the order of the district court in its entirety.
A court is required to impose a sentence within the range defined by the Guidelines “unless the court finds that 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). The district court must limit itself to the Sentencing Guidelines, the policy statements, and the official commentary of the Sentencing Commission. United States v. Joan, 883 F.2d 491, 493 (6th Cir.1989). The guidelines are meant to cover “heartland” type cases where departures are only warranted for atypical cases “to which a particular guideline linguistically applies, but where conduct significantly differs from the norm.” U.S.S.G. Ch. 1, Pt.A4(b).
The Sixth Circuit has pronounced that “there must be something ‘special’ about a given offender, or the accoutrements of the crime committed, which distinguishes this case from the mine-run of that offense.” United States v. McDowell, 902 F.2d 451, 455 (6th Cir.1990), citing United States v. Aguilar-Pena, 887 F.2d 347, 350 (1st Cir.1989). The court must state the specific reason for the departure from the Guidelines. 18 U.S.C. § 3553(c)(2); United States v. Newsome, 894 F.2d 852, 856 (6th Cir.1990). In United States v. Brewer, 899 F.2d 503 (6th Cir.), cert. denied 498 U.S. 844, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990), this circuit has adopted a three tier approach in reviewing a district court’s decision to depart from the guidelines as follows:
1.The reviewing court must determine, as a matter of law, if the case is sufficiently unusual to warrant departure.
2. The reviewing court must determine if the facts supporting the departure exist. Since this is a factual determination, this court will only review for clear error.
3. The reviewing court must determine whether the direction and degree of departure was reasonable. 18 U.S.C. § 3742(e)(3).
United States v. Brewer, 899 F.2d at 506.
If this court concludes that the district court’s reasons for departure were adequately considered by the guidelines, then this court’s review need go no further. United States v. Hays, 899 F.2d 515, 519 (6th Cir.1990). Though the majority would conclude that is the ease sub judice, I differ.
In the case at bar, the district court judge determined there were two mitigating circumstances “both of a kind and to a degree not considered by the Sentencing Commission.” I believe we risk a great injustice when concentrating our efforts into breaking down each stated reason for departure into separate and distinct elements without also viewing these reasons in the context of the whole proceedings. It seems to me that we must judge each event in its totality if we are to reach a fair and just decision. Nevertheless, I will attempt to articulate why I feel that, even when viewing the restitution in isolation, this court should affirm the conclusions of the district court.
The district court explained that, although restitution is a factor taken into consideration by the Guidelines, the degree to which defendant made restitution exceeded that contemplated. The court elucidated its holding, recognizing that defendant liquidated all of his assets and was left with only the clothes on his back. Clearly, this case does not represent the typical conduct exhibited in criminal cases in this circuit. Likewise, it must also be appreciated that it was defendant who turned himself in before the police came looking for him. When defendant became aware of an investigation being conducted at the Veterans Affairs Finance Center, he immediately retained counsel and turned himself in. This is not to excuse his illicit behavior in any way. I readily acknowledge that the discovery of his criminal conduct was inevitable. Nevertheless, I believe we must also weigh the unusually responsible behavior exhibited by the defendant in this case and the voluntariness of his actions.
Defendant entered into a plea agreement whereby he agreed to make restitution in the amount of approximately $46,000.00. On May 24, 1991, defendant appeared in court for sentencing. The Pre-sentence Report indicated that defendant had assets worth $31,-769.99. The court directed defendant to liquidate his assets within two weeks. When defendant returned for sentencing, he had only the clothing on his back and twenty dollars in his pocket. The district court determined that “... defendant’s full restitution to the extent possible to the government and [his] willingness to completely liquidate all prior to sentencing ...” warranted a downward departure. Úpon appeal by the government, this court remanded the case for the district court to articulate the basis and reasonableness of its departure.
Upon remand, the district court acknowledged that restitution is a factor contemplated by the Guidelines. The court, however, again stated that it was both the degree of restitution and the manner in which it was made which distinguishes the defendant’s behavior in this case from the typical instances of restitution contemplated by the Guidelines. In other words, despite the fact that defendant agreed to make restitution and despite the fact that he did so at the district court’s discretion, there was still something extraordinary about defendant’s behavior.
I agree with the conclusion of the district court judge. The fact that the restitution was done so totally, completely and quickly does differentiate this behavior and persuades me that this conduct is sufficiently different from the norm so as to warrant a downward departure. This type of behavior should not simply be dismissed under the guise that he was obligated to so perform. Such a view ignores the realities of life.
Applying the Brewer test to the facts sub judice, the majority finds that, as a matter of law, defendant’s restitution was not sufficiently unusual to justify a departure. I disagree. The facts of this ease demonstrate that defendant’s restitution was well beyond the norm. In Brewer this court held that “[u]nless the defendants have proved that their voluntary repayment of the embezzled funds constitutes an ‘exceptional circumstance,’ a downward departure based on this factor is not warranted.” United States v. Brewer, 899 F.2d at 509, citing United States v. Bolden, 889 F.2d 1336 (4th Cir.1989). This court specifically held in Brewer that the sentence imposed, under the Guidelines, had taken into consideration the restitution made. Nevertheless, it is clear from Brewer, that when the facts surrounding the restitution indicate an “exceptional circumstance”, a downward departure may be warranted.
The majority also relies on United States v. Harpst, 949 F.2d 860 (6th Cir.1991). In that ease, the court discussed whether incarceration and its detrimental effect on the defendant’s ability to make restitution is an available ground for departure. Harpst, however, merely stands for the proposition that the ability to make restitution cannot be the basis for a downward departure. The reasoning behind this holding is that it would nurture disparate sentences based upon socioeconomic class distinctions.
In the case at bar, defendant did not make a full and complete restitution. He was in fact, ordered to do so by the court, but he was unable to make full restitution at that time. In other words, it was not his ability to pay, rather, it was the method in which he attempted to make restitution. Moreover, simply because a defendant might or might not have the ability to make restitution, he should be judged by his actions. The fact that he may have some economic means should neither be held for him or against him. To suggest that when a defendant is affluent, his attempts at restitution can never qualify as an exceptional circumstances is as repugnant to equal protection ideology as to hold the lack of ability to make restitution against an indigent defendant. It is clear that in some cases, the methods by which a defendant makes restitution may qualify as an exceptional circumstance, above and beyond what is considered in the Guidelines.
The majority also raises this issue, to-wit: that white collar criminals must be treated equally with other convicted criminals. I have no quarrel with this proposition. I believe, however, that where, as here, a criminal goes to the extreme in making restitution and cooperating with authorities, his behavior may exceed that contemplated by the Guidelines. The defendant in Harpst did not attempt to make restitution, much less to the extent made by DeMonte in the case at bar. It seems to me that, conversely, by comparing the behavior of the defendant in Brewer or Harpst to the case at bar, DeMonte’s conduct was clearly “sufficiently unusual” thus warranting a departure.
I must again note that the district court judge relied on two reasons for departure. It seems to me that, even assuming arguen-do that neither of the two reasons would suffice on its own, the combination of the two could indeed distinguish this case from the heartland type of cases contemplated by the Guidelines.
The district court’s second reason for departure was the “extraordinary level of cooperation [of defendant] by providing the government with extensive information regarding crimes with which he was not even charged.” The government argues that defendant merely adhered to the terms of his plea bargain. The district court, however, noted that defendant admitted to a theft of $30,000.00 from the government which the government was not even aware of and for which defendant was not being prosecuted. The government simply dismisses this conduct by stating that defendant was obligated to confess. No cases in which a defendant offered similar cooperation or in which a district court denied a downward departure for this level of extraordinary cooperation are cited. It seems to me that this type of cooperation is exceedingly unusual.
Finally, the government asserts that a seven level reduction of the sentence was unreasonable. In light of all of the facts of the case, and bearing in mind that the district judge was in a better position to observe the credibility of the witnesses, it seems that reducing defendant’s sentence from a term of twelve to eighteen months imprisonment down to three years probation does not seem to me to be unreasonable. As was stated by the district court judge, “[t]his court has no greater obligation than to see that justice is accomplished in every case.” The district court thus determined that an appropriate downward departure was warranted. Based on the facts of the individual case before us, and in the interest of justice, I fully concur with the reasonableness of the downward departure.
To subscribe to the position the majority urges would remove any of the discretion that a district court judge has in sentencing. While it is true that district court judges have retained very little discretion in sentencing matters, the Sentencing Commission has made it clear that, in an exceptional case, the district judge does indeed have some discretion. I believe that the district court, in the instant case, was correct in determining that this case presents sufficiently unusual circumstances to warrant a downward departure. I also believe the degree and direction of the departure was reasonable and appropriate. Accordingly, the district court judge was within his prerogative to depart from the Guidelines in the instant case. I would, therefore, affirm the Order of the district court.
. This does not mean to imply there is a synergistic effect, although such a result could be real. Rather, it is merely cumulative in nature.

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