Antelope

MEMORANDUM *

Both the government and the defendant appeal the district court’s imposition of sentence and subsequent actions in revocation of probation. We affirm in part, reverse in part and remand for re-sentencing. Because the parties are familiar with factual and legal background of this case, we will not recount it here.

1. The issue to which the parties devote most of their attention is whether the district court violated defendant Antelope’s rights under the First and Fifth Amendments by imposing and enforcing a condition of probation that he cooperate fully in sexual offender therapy that included polygraph examinations and disclosures of sexual history. However, because the sentence itself must be vacated, we need not reach any issues raised by the probation revocation.

2. We affirm the district court’s grant of a downward departure based on post-offense rehabilitation efforts. To be proper, the district court’s downward departure on the basis of Antelope’s post-offense rehabilitative efforts must have been based on a determination that Antelope “demonstrated an extraordinary level of rehabilitation” substantially differentiating Antelope as a seeker of rehabilitation…