with whom KLEINFELD, Circuit Judge, joins, dissenting:

I respectfully dissent.

The majority, by agreeing that Brenda Working’s conduct warrants departure for aberrance, has found new meaning in the term — one not supported by our jurisprudence and one which, by its sheer expansiveness, is at odds with the views of every other circuit. Brenda Working committed a premeditated attempted murder, “attempted” only because her relentless and cold-blooded assault on her husband was thwarted by his equally relentless will to survive. She compounded her crime by destroying evidence and lying to the police in an effort to conceal what she believed to be the murder she committed. Brenda’s crime was not spontaneous: it was well-planned and brutal, and it left a man crippled for life.

The district court was wrong to find that the case lies outside the heartland of attempted murder cases, and wrong to depart 21 levels to sentence Brenda Working *1104 to but one day in prison. The majority opinion’s approval of the district court’s rote recitation of the aberrant conduct factors makes a mockery of the heartland inquiry required by Koon v. United States, 518 U.S. 81, 97-100 , 116 S.Ct. 2035 , 135 L.Ed.2d 392 (1996). It returns us to a time before the Sentencing Guidelines, when judges were free to impose sentences based on their own biases, prejudices, and arbitrary assumptions about human behavior.

I.

The following facts are drawn from those admitted by Brenda as a basis for her plea, set forth in the presentence report and not objected to by Brenda, or testified to by Brenda.

Brenda and Michael Working were married in 1990. They were a middle-class couple with at least $500,000 in assets. She was employed as a revenue auditor for the State of Washington, Department of Revenue. He was employed by a construction company. He had two sons from a prior marriage, Mitch, who was 18 at the time of sentencing, and Micah, who was 22. They also had two daughters, ages 2 and 4.

By December 1996, Brenda and Michael had sought marriage counseling. Brenda had never been treated for any psychological problems, but was referred during marriage counseling to her family doctor for an anti-depressant medication. There was no evidence of domestic violence in the household, other than Brenda’s testimony that she once “pushed Michael down.”

On July 16, 1997, Michael petitioned for divorce. In the petition he alleged that he had discovered Brenda sleeping next to his son Mitch. He sought custody of the two girls, for whom he had been caring during the day while working the night shift, and an order restraining Brenda from divesting the marital assets. The show cause hearing was scheduled for August 7, 1997.

Within a week after the filing of the divorce petition, Brenda took action. On July 23, 1997, she paid for a .38 caliber handgun from the Top Kick pawn shop. During the week-long waiting period before she could pick up the gun, Brenda removed Michael from her job-related health insurance policy. Brenda picked up the gun on Saturday morning, August 1, 1997, six days before the show cause hearing.

At 10:45 that night, Brenda called Michael. Using the pretense that her minivan had broken down on an isolated wooded road, and that she was stranded with their children, she asked Michael to drive out to help her and to pick up the children. When he arrived, she attempted to lure him out of his Ford Bronco by talking of reconciliation. Failing to coax him from the car, Brenda produced the .38 and unloaded it through the window of the Bronco, hitting Michael in the arm, shoulder, and back. Michael ducked, avoiding more serious injury, and was able to escape Brenda’s continued assault by driving into an embankment, exiting the Bronco, and running away. Brenda, meanwhile, reloaded the gun with the extra cartridge she had thought to bring along. She then drove the van near Michael, shined the headlights on him, got out, and shot him in the back. He turned, attempted to “rush her” and was met with another slug in his chest. They joined in a struggle. While Michael attempted to wrest the gun from Brenda, she beat him about the head with it. At one point she stopped wrestling, telling Michael that she would take him to the hospital. As he hesitated, she pointed the gun in his face. Michael struck her in the face to remove her eyeglasses, breaking them, and ran away again. As he hid among the woods for over two hours in the middle of the night, Brenda (1) maneuvered the van along the road; (2) parked it with the headlights shining into the woods; (3) left the van to search for Michael in the lighted area; and, failing to find him, (4) systematically repeated this procedure. At one point, two women approached the van and asked Brenda, “Are you okay?” Brenda did not respond but covered her face with her hands to conceal her identity.

*1105 Assuming that Michael had not survived the attack, Brenda returned home early Sunday morning. She burned the clothing she had been wearing and hid the eyeglasses Michael had broken beneath a black plastic covering in a flower bed. She then called 911 to report Michael for domestic violence. The police were greeted with Brenda’s false tale of having been physically assaulted and threatened with a gun by Michael the night before. She even included in this story a fabricated detail that could have supported her innocence of Michael’s murder: she stated to police that while Michael was throwing her to the ground, she heard another voice yell to him, “Let’s get going,” thus creating the inference that the “killer” was the person with Michael during the alleged attack on her. Brenda came clean only when she learned that, despite her best-laid plans and all her efforts, Michael had managed to survive.

Brenda pleaded guilty to a two-count second superseding information, which charged that Brenda: (1) “with premeditation did assault with intent to kill” Michael; and (2) during this crime of violence “intentionally used a .38 caliber revolver.” For Count 1, the statutory maximum penalty included twenty years imprisonment. Count 2 required a consecutive mandatory minimum term of five years.

II.

The majority begins with a sensible truth: district courts have broad discretion in sentencing. As the Supreme Court has explained, “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, 518 U.S. at 98 , 116 S.Ct. 2085 . Such discretion, however, is not without bounds. The district court may not depart unless it has a legal basis to do so. See, e.g., United States v. Lipman, 133 F.3d 726, 729 (9th Cir.1998). In addition:

Koon, 518 U.S. at 98 , 116 S.Ct. 2035 . The majority errs in finding that the district court’s “discussion” of the seven factors from United States v. Colace, 126 F.3d 1229, 1231 (9th Cir.1997), constituted a “refined assessment” of the supposed facts which remove this case from the heartland. It also incorrectly accepts without examination the district court’s factual conclusions that “what happened was the pressure of losing her two daughters” and that what “set off this whole case” was “when the victim in the case accused her of having sexual relations with one of his minor sons.” But the most troubling aspect of the majority’s opinion is that, having accepted the district court’s erroneous conclusions, it deems this “protection of her family” a legitimate, indeed, a justifying, motivation for Brenda’s attempt to kill her husband.

Although the district court’s and the majority’s human sympathies are laudable, they are misplaced. The facts of this case are not sufficiently unusual to remove it from the heartland. The district court’s “factual conclusions” about Brenda’s motivation are neither supported by the record nor a legitimate basis for finding Brenda’s assault out of character. Rather, two factors — one of which, spontaneity or lack of planning, is openly dismissed by the majority and the other, the violent and brutal nature of the crime, is not even addressed — both show that Brenda’s attack on her husband was not aberrant. No circuit, including ours, has approved a departure in a case involving both a lack of spontaneity and a violent crime. The premeditated brutality here precludes a finding of aberrant conduct under any test heretofore applied.

*1106 A.

Neither the district court nor the majority engaged in the requisite heartland analysis. Few cases since Koon have even addressed how Koon may have changed the aberrant behavior analysis. However, both the Eighth and the Tenth Circuits have held that in the aberrant behavior context Koon requires both heartland analysis and an inquiry into whether the factors relied upon to find aberrance may be considered. See United States v. Benally, 215 F.3d 1068, 1072-77 (10th Cir.2000); United States v. Kalb, 105 F.3d 426, 429 (8th Cir.1997). 1 In Kalb , the court remanded because the district court had not engaged in Koon analysis. See Kalb, 105 F.3d at 430 .

The district court here actually gave nodding deference to Koon, see Maj. Op. at 1099, but neither it nor the majority engaged in a “refined analysis.” Both mechanically applied the Colace factors in isolation, without regard for how this case compares to others like it. But nothing about this case makes Brenda’s conduct less severe than a “heartland” attempted murder case and several factors make it far more egregious.

Brenda planned the murder for at least a week. She purchased a gun and returned to pick it up; she took Michael off her insurance policy; she concocted a story to lure Michael to a deserted area. Brenda shot Michael from point-blank range. When that did not kill him, she continued the attack until she had satisfied herself that he was dead. At one point during her prolonged midnight mission she ran out of ammunition and reloaded her gun. She pursued Michael relentlessly for at least two hours, carefully and methodically searching for him as he attempted to hide in the woods. Brenda even picked up the empty shell casings and counted them to make sure she left no evidence. She had plenty of time and opportunity, both before and during the commission of the crime, to reflect upon her intended course of action and to change direction. At no time during the horrible crime did Brenda think twice and withdraw from the attack. In fact, she never interrupted her evil scheme nor did she at any time help her wounded and bleeding victim who she knew was lying somewhere in the woods. When she did call 911 for assistance, it was not to save Michael, but to save herself. Thus, the heinousness of this crime places it squarely within the heartland.

The severe injuries to the victim also undermine the district court’s decision to depart. The bullets that hit Michael did serious damage. The injuries to his arm required three surgeries and it took two metal plates and 178 screws and pins to hold his shattered upper arm bone in place. Michael will never be able to *1107 straighten his arm. Two bullets, which lodged too close to vital organs and nerves to be removed, are still in Michael’s body. A fair number of attempted murders are interrupted or result in no injuries: the murder conspiracy thwarted by the police; the gunshot that misses. Here, however, Brenda was not caught until the damage was done and Michael had taken several bullets. The only things that made this an attempt and not a murder were luck and Michael’s resilience.

The majority accepts the district court’s “lioness defending her cubs” rationale for the commission of the crime. But Brenda was not defending anything or anyone during this crime — she was the predator, not Michael. The majority also accepts the stressful family situation as support for the aberrant behavior departure. The Workings were in the midst of divorce proceedings. Although it is readily apparent that such proceedings are stressful, they are not unusual. 2 Nor was this an unusual divorce. It involved the questions of custody and division of property that are commonplace among middle-class people with children and assets. Indeed, Brenda’s post-breakup outlook was far more secure than many wives in divorce proceedings — she had a good job, significant assets, and a home in which she was living with her children. By approving the district court’s reliance on the stress of divorce proceedings, a difficult but commonplace occurrence, as a basis for an aberrant behavior downward departure, the majority disregards the Koon requirement of heartland analysis.

B.

The district court’s conclusion that its factual findings support a downward departure is troubling enough. It is even more troubling, however, when one examines the record because the findings are not supported by the evidence. When combined with the district court’s comments at the two sentencing hearings, it is clear that the court replaced Koon heartland analysis with its own stereotypical perceptions of Brenda, Michael, and their divorce proceedings.

The district court found that “there’s no question in this court’s mind that what happened was the pressure of losing her two daughters.” However, Brenda had custody of their two daughters until she tried to kill their father. Brenda told the court-appointed psychiatrist that Michael was “not a bad guy.” Brenda’s own testimony also belies the district court’s finding. She explained that by trying to kill him she was protecting the kids from “allegations that he continuously made on us.” (emphasis added). Yet the only allegation she mentioned was the one about Brenda and Mitch sleeping together. She mentioned no allegations about the two children whose custody she supposedly feared losing. Brenda’s later testimony is more revealing of her true motivation: “I was just protecting myself to get him out of my face, to get him out of the door, to leave me alone.” (emphasis added). Brenda tried to kill Michael, not because she worried about losing her daughters, but because she was “protecting herself,” and she did not like him “yelling” and “towering over” her. Yet there is no evidence in the record that Michael was physically abusive toward Brenda. Brenda was not helpless. She had a job; she had a car; she managed the money; and there would be a court proceeding in less than a week.

This brings us to the third basis for the district court’s decision, that the legal system had “failed her” because Brenda had sought a restraining order against Michael which the state court had denied. The district court asked, “Is that justice, when she sought help from the courts, from the law, that failed her?” The reason Brenda *1108 failed to meet the lenient standard for a restraining order against Michael’s alleged domestic violence, however, is that there was none. Michael, as Brenda testified, was not physically violent. So the system did not “fail her” — she was not legally entitled to the relief she sought. By the district court’s ruling — and the majority’s affirmance — self-help, even to the extent of attempted murder, is now apparently condoned in the Ninth Circuit.

C.

The majority dismisses out of hand the government’s argument that Brenda’s conduct cannot be deemed aberrant because it lacked spontaneity. Although it discusses the aberrant behavior law of other circuits, the majority opinion fails to acknowledge that key factors missing from Brenda’s conduct — spontaneity and lack of planning — are the very factors relied on by the majority of other circuits in allowing aberrant behavior departures.

The circuits are split about the proper definition of aberrant behavior. A majority of the circuits' — the Third, Fourth, Fifth, Seventh, Eighth, Eleventh, and District of Columbia Circuits — have followed the Seventh Circuit’s formulation that:

United States v. Carey, 895 F.2d 318, 825 (7th Cir.1990); see United States v. Paster, 173 F.3d 206, 213 (3d Cir.1999); United States v. Marcello, 13 F.3d 752, 761 (3d Cir.1994); United States v. Glick, 946 F.2d 335, 338 (4th Cir.1991); United States v. Williams, 974 F.2d 25, 26-27 (5th Cir.1992); United States v. Andruska, 964 F.2d 640, 645 (7th Cir.1992); Wind, 128 F.3d at 1278; Kalb, 105 F.3d at 429 ; United States v. Premachandra, 32 F.3d 346, 349 (8th Cir.1994); Garlich, 951 F.2d at 164; United States v. Bush, 126 F.3d 1298, 1301 (11th Cir.1997); United States v. Withrow, 85 F.3d 527, 531 (11th Cir.1996); Dyce, 91 F.3d at 1470. In Carey , the Seventh Circuit reversed a downward departure because the defendant’s actions “were apparently the result of extensive planning and were spread out over a fifteen-month period.” Id. at 325 .

An early First Circuit case, United States v. Russell, 870 F.2d 18 (1st Cir.1989), is often cited by majority jurisdictions as the “paradigmatic,” aberrant behavior case. See Rachael A. Hill, Comment, Character, Choice, and “Aberrant Behavior”: Aligning Criminal Sentencing With Concepts of Moral Blame, 65 U. Chi. L.Rev. 975 (1998). In Russell :

Russell, 870 F.2d at 19 .

A minority of circuits, ours, the First, Second, and Tenth, have allowed district courts to consider a variety of factors, including spontaneity, in determining whether the defendant’s actions constituted aberrant behavior. See United States v. Grandmaison, 77 F.3d 555, 561-64 (1st Cir.1996); Zecevic v. United States Parole Comm’n, 163 F.3d 731, 734-35 (2d Cir.1998); Martinez, 207 F.3d at 136; United States v. Dickey, 924 F.2d 836, 838 (9th Cir.1991); United States v. Takai, 941 F.2d 738, 743 (9th Cir.1991); United States v. Fairless, 975 F.2d 664, 667-68 (9th Cir.1992); United States v. Lam, 20 F.3d 999, 1003-04 (9th Cir.1994); Green, 105 F.3d at 1323 ; Colace, 126 F.3d at 1231; United States v. Pena, 930 F.2d 1486, 1495 (10th Cir.1991); United States v. Tsosie, 14 F.3d 1438, 1441 (10th Cir.1994); United States *1109 v. Jones, 158 F.3d 492, 500 (10th Cir.1998). 3

The nonexclusive factors identified recently by the Second Circuit in Zecevic are representative. The Second Circuit looks to:

Zecevic, 163 F.3d at 736 .

If we were to adopt the majority test, Brenda’s planning would absolutely preclude departure. 4 However, even applying a totality of the circumstances test, the planning, the violent nature of the crime and the lack of any evidence that Brenda attempted to mitigate the effects of the crime make departure inappropriate.

Although courts in minority jurisdictions have not made spontaneity an absolute requirement, it continues to be a crucial factor. For example, the Second Circuit in Zecevic refused to apply the departure to Zecevic’s drug importation offense because, although he had previously been law-abiding and employed, and his criminal behavior shocked his family, Zecevic “initiated an elaborate scheme to smuggle drugs into Sweden and carried out that plan over the course of several months.” Zecevic, 163 F.3d at 736 ; see also Martinez, 207 F.3d at 137-38 (rejecting departure for defendant who engaged in thirteen-month scheme to import cocaine); Contreras, 180 F.3d at 1213 (stating that six-year involvement in father’s drug conspiracy was not a single act of aberrant behavior); United States v. Ziegler, 39 F.3d 1058, 1063 (10th Cir.1994) (finding that defendant’s long-term involvement with controlled substances precluded departure).

*1110 We have also reversed departures because of planning. In Green, we suggested a departure was inappropriate because the crime was well-planned:

Green, 105 F.3d at 1323 . Similarly, in Takai , we affirmed a downward departure based on aberrant behavior because the defendants, who pleaded guilty to bribing an INS official, had not acted out of a profit motive and, although they had not been entrapped, had been encouraged by the conduct of the official. The court concluded as to one defendant that “[everything points to the conclusion of the district court that she stumbled into something, awkwardly, naively, and with insufficient reflection on the seriousness of the crime she was proposing.” Takai, 941 F.2d at 743 .

Picking up on this theme, in Colace we attempted to limit the expanse of the totality of circumstances test and harmonize it with the majority test:

Colace, 126 F.3d at 1231 (citations and footnote omitted). The court found that Colace’s eleven-week crime spree, during which he committed at least a dozen bank robberies, precluded the aberrant behavior departure. Id. at 1232.

Courts also have limited the aberrant behavior departure by applying it only in cases that involve relatively minor, nonviolent crimes. The term “aberrant behavior” is found in the introduction to the Sentencing Guidelines, in which the Sentencing Commission explains that it had “not dealt with the single acts of aberrant behavior that still may justify probation at higher offense levels through departures.” U.S.S.G. Chapter 1, Part A4(d). The language from the Guidelines speaks only about defendants who could be eligible for probation with a departure. 5 As the Eighth Circuit has stated, “[tjhere is nothing in this specific comment, or its context within the Guidelines, that suggests the Commission intended to encourage aberrant behavior departures for murderers, drug dealers, and bank robbers.” Kalb, 105 F.3d at 429 .

Courts have been particularly reluctant to apply the aberrant behavior departure in cases involving extreme violence. In the few cases analyzing aberrant behavior in the context of extreme violence, courts have found that any pre-planning at all will preclude an aberrant behavior departure. For example, in United States v. Weise, 89 F.3d 502 (8th Cir.1996), the Eighth Circuit reversed a district court’s conclusion that a murder committed after a “heavy night of drinking,” id. at 504 , was aberrant behavior. The court explained:

Id. at 507 . Similarly, in Paster , a man killed his wife with a knife after she told him about her numerous and ongoing affairs. There, the district court found that the killing did not amount to aberrant behavior because “Paster had ample time in the minutes preceding the stabbing to think about whether to murder his wife” and that “the number of times Paster stabbed his wife indicates that he thought about the act as it was being done.” Paster, 173 F.3d at 212 . The Third Circuit affirmed. In Tsosie , the Tenth Circuit did find departure appropriate in a second-degree murder case in which a husband cut his wife’s boyfriend with a survival knife during an altercation and the boyfriend bled to death. See Tsosie, 14 F.3d at 1443 . However, unlike Brenda Working, who left her husband to die, the defendant in Tsosie took steps to mitigate the seriousness of the crime by attempting to get help and trying to stop the bleeding. See id.

Courts have limited aberrant behavior departures to cases involving spontaneous or nonviolent acts. Indeed no case — from this or any other circuit — has approved an aberrant behavior departure in a case involving both planning and extreme violence. The majority thus makes an unwarranted departure from the law of this and every other circuit.

III.

I return to the issue of discretion. District courts are granted discretion because of their special expertise; when they do not rely on their special expertise, their decisions are less worthy of deference. Cf. Kalb, 105 F.3d at 430 (“Koon now requires ... an analysis which, tvhen properly conducted, is entitled to deferential review” (emphasis added)).

As the majority acknowledges, “the district court offered virtually no explanation for how it arrived at its decision to depart downward by twenty-one levels.” Maj. Op. at 11422. I agree, but would add that the district court offered no reasoned explanation for why it departed at all. The court listed factors and found them present or absent but did not engage in heartland analysis, did not explain why Brenda’s conduct was less culpable than the Sentencing Guidelines would indicate, and did not connect the factors it considered to its decision to depart. ■"

One of the motivating purposes of the Sentencing Guidelines was to eliminate disparities in sentencing. See Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L.Rev. 1, 5 (1988). In part this consistency is achieved by requiring reasoned findings and meaningful appellate review. On appeal we should determine that the district court considered only proper and legitimate factors and did not base its decision on prohibited factors such as race, sex, and religion. See U.S.S.G. § 5H1.1Ó. When the district court provides no justification, or when the facts it recites are contrary to the record, we cannot determine whether such prohibited factors have contributed to a sentencing decision.

Indeed, the district court record only heightens suspicion that prohibited factors, such as gender and class, were at work. Having reviewed the entire record, I have reluctantly come to the conclusion that the district court would not have departed for aberrant conduct if it had been Michael who attempted to kill Brenda in the brutal and premeditated manner of her attack upon him. It is unfortunate that the district court’s failure to conduct Koon heartland analysis, to do more than simply recite the Colace factors, and to reach conclusions not supported by the evidence creates room for the conviction that prohibited factors crept into the decision to depart. Substantial deference to this decision is therefore inappropriate.

I dissent.

. Koon may call into question the use of the Colace factors by focusing on the relationship between individual factors and the Guidelines as a whole. Several courts have concluded that certain factors may not be considered because they are already accounted for by the Guidelines. For example, courts have rejected the use of economic factors, see United States v. Martinez, 207 F.3d 133, 138 (2d Cir.2000) ("[T]he district court improperly relied on Martinez's claim that he was under pressure and motivated by the desire to pay the workers at his factory”), family responsibilities, see United States v. Burleson, 22 F.3d 93, 94 (5th Cir.1994) (stating that "a defendant’s employment record and his family ties and responsibilities are not ordinarily relevant in determining whether a departure is warranted”); United States v. Contreras, 180 F.3d 1204, 1214 (10th Cir.1999) ("[Fjamily ties and responsibilities are a discouraged factor.”); United States v. Archuleta, 128 F.3d 1446, 1451 (10th Cir.1997) (holding that a departure based "entirely on Archuleta’s care and support of three dependents” was not warranted); United States v. Wind, 128 F.3d 1276, 1278 (8th Cir.1997) (stating that family ties are discouraged and may only be considered in extraordinary cases); United States v. Dyce, 91 F.3d 1462, 1466-67 (D.C.Cir.1996) (same); United States v. Garlich, 951 F.2d 161, 164 (8th Cir.1991) (same), and a defendant’s criminal history, see United States v. Green, 105 F.3d 1321, 1323 (9th Cir.1997); Garlich, 951 F.2d at 164 . By emphasizing the need to assess each factor and its relationship to the structure of the Guidelines, Koon may very well have overruled Ninth Circuit law allowing consideration of economic, family and criminal history factors.

. If common experience does not bear this out, statistics do. In 1997 in the State of Washington, there were approximately 42,000 marriages and 29,000 divorces. See United States Census Bureau, Statistical Abstract of the United States: 1999 (found at http://www.census.gov/prod). Thus, divorce is almost as common as marriage. Divorces filed in 1990 affected more that one million children nationwide. See id.

. The Second Circuit only recently joined the circuits holding the minority view. See Zecevic, 163 F.3d at 735 . Previously, in United States v. Altman, 48 F.3d 96, 104-05 (2d Cir.1995), the Second Circuit affirmed a district court’s refusal to apply the aberrant behavior departure in a case in which the defendant over the course of several years defrauded an estate for which he served as executor. It declined to articulate a test but concluded that "the repeated and long-lasting criminal conduct involved here cannot under any circumstances be considered a 'single aberrant act.’ ” Id.

The Sixth Circuit has declined to take sides in the debate. See United States v. Dalecke, 29 F.3d 1044, 1047-48 (6th Cir.1994) (stating that under either test, and considering only factors not taken into account in the Guidelines, defendant’s fifteen-year possession of an illegal gun was not aberrant); United States v. Duerson, 25 F.3d 376, 382 (6th Cir.1994) (declining to choose an approach in affirming district court's decision not to depart in a case in which the defendant began to plan the robbery of a UPS vault several weeks before the crime).

. Courts from majority jurisdictions have found even minimal planning sufficient to defeat an aberrant behavior departure. For example, in Withrow :

Withrow, 85 F.3d at 531 . Although the district court had erroneously concluded it did not have the discretion to depart, the Eleventh Circuit affirmed because the record did not support an aberrant behavior finding. See id.; see also Premachandra, 32 F.3d at 349 ("The robberies that Premachandra committed were neither spontaneous nor thoughtless. To the contrary, the record indicates that the robberies were planned rather than impulsive. Premachandra took steps to avoid apprehension, wearing a facial disguise and covering the rear license plate of the getaway vehicle.”).

. Despite the precipitous departure, the district court did sentence Working to one day of jail time — not merely probation — on the assault with intent to commit first degree murder charge.