§660 Specific Offender Characteristics, Generally (U.S.S.G. §5H)
1st Circuit holds that defendant’s relationship with biracial son did not make family circumstances exceptional. (660) Defendant moved for a downward departure based on his relationship as a parent of color with his nine-year old biracial son. He submitted a doctor’s report about the importance to the availability of the parent of color to the offspring of color, in order for the child to have a needed role model. The district court found that § 5H1.10, which makes race irrelevant to the determination of a sentence, barred a departure here. The First Circuit found it unnecessary to address whether § 5H1.10 barred the departure, since even if the district court had considered defendant’s race and cultural background, the circumstances did not support a finding that defendant’s family circumstances were exceptional. See USSG § 5H1.6. The support defendant provided to his son was not so different in kind or degree from the many kinds of support that can be important in the parent/child relationship. The hardship visited upon defendant’s family by his incarceration did not match the hardship endured by other families in cases where the court refused to authorize a departure. U.S. v. Louis, 300 F.3d 78 (1st Cir. 2002).
2nd Circuit affirms court’s refusal to impose below-guideline sentence based on age, health and undischarged sentence. (660) Defendant argued that his sentence was unreasonable because the district court should have weighed more heavily his age, health, and undischarged sentence from a prior conviction for shipping industry extortion. The district court imposed a sentence within the guideline range after noting that the “facts relevant under Section 3553(a) strongly support a lengthy sentence.” The court considered defendant’s age and health, noting that his claim that he was “no longer a threat to society because of his age and medical conditions [was] belied by the trial testimony establishing that he, like other members of the Gambino crime family, only needed to direct subordinates to commit the criminal acts from which he profited.” As for the undischarged sentence, the court ruled that § 3553(a), especially the goals of punishment and deterrence, favored a “lengthy sentence.” The Second Circuit found no error. U.S. v. Matera, 489 F.3d 115 (2d Cir. 2007).
2nd Circuit rejects departure for lack of role model, drug abuse, ineligibility for sentencing credit, and learning disability. (660) The district court relied upon a combination of four factors to grant a three-level downward departure: (1) defendant’s lack of a positive male role model as a youth; (2) his history of drug abuse and failed treatment; (3) his possible ineligibility for credit for his pretrial detention; and (4) a learning disability that limited his educational opportunities. The court stated that none of the factors by themselves warranted a departure. The Second Circuit reversed. Section 5H1.12 expressly prohibits a judge from considering a defendant’s lack of guidance as a youth and similar circumstances, which would include lack of a male role model. Section 5H1.4 bars a court from considering a defendant’s history of drug abuse. A prohibited factor may never serve as a basis for departure. As to the third factor, defendant received full credit towards his federal sentence for the 19 months he spent in pretrial detention in state and federal custody. Thus, this factor did not support a departure. Because the other three factors were not valid grounds for departure, it was not necessary to address the fourth factor, which the district court already rejected, standing along, as a basis for departure. U.S. v. Payton, 159 F.3d 49 (2d Cir. 1998).
2nd Circuit remands to avoid appearance that sentence was based on defendant’s race. (660) In rejecting defendant’s request for a downward departure based on the hardship of her youth in mainland China, the district judge stated that the U.S. had enough “home-grown” criminals without importing them. The judge later stated that the reason for particular sentence imposed was to deter others, particularly those in the Asiatic community, from coming to the U.S. to commit drug crimes. The 2nd Circuit, although “confident that the able and experienced trial judge in fact harbored no bias” against defendant because of her ethnic origin or alien status, nonetheless remanded. There was sufficient risk that a reasonable observer, hearing or reading the quoted remarks, might infer that defendant’s ethnicity and alien status played a role in determining her sentence. U.S. v. Leung, 35 F.3d 1402 (9th Cir. 1994).
3rd Circuit rules that charitable works of minister who stole from his church did not warrant departure. (660) Defendant, the pastor of a church, was convicted of a number of offenses related to his theft of funds belonging to his church. Although a defendant’s charitable works are not ordinarily relevant in determining whether to depart, § 5H1.11, a district court may grant a downward departure if a defendant has made civic or charitable contributions “to an exceptional degree or, in some way, that makes the case different from the ordinary case in which the factor is present.” U.S. v. Serafini, 233 F.3d 758 (3d Cir. 2000). Here, the district court recognized that defendant’s contributions to the community were “profound,” “substantial,” and “sustained,” but the court nonetheless denied the motion. Defendant performed these acts as part of his daily function as pastor, and the court could not permit defendant “to hide behind the very community from whom he stole.” The court held that defendant’s net charitable and civil contributions, taking into account both the good and bad that he did in his capacity as a member of the clergy, could not be considered as so extraordinarily positive as to warrant a downward departure. The Third Circuit agreed with this analysis and with the district court’s conclusion that the requested downward departure was not permitted. U.S. v. Wright, 363 F.3d 237 (3d Cir. 2004).
3rd Circuit upholds downward departure for legislator’s community and charitable activities. (660) Defendant, a state legislator, was convicted of perjury based on his false testimony before a federal grand jury investigating election law violations. The Third Circuit affirmed a downward departure for defendant’s community and charitable activities. Such departures are discouraged but not forbidden by the guidelines. USSG § 5H1.11. The letters describing defendant as a good person, and referring to his activities as a state legislator, did not provide an adequate basis for departure. However, the letters describing defendant’s assistance to individuals and local organizations did provide an adequate basis for the departure. These letters described defendant’s generosity to friends and constituents in unique and meaningful ways during times of serious need. Although defendant was wealthy, and part of his largesse was financial, the departure was not improperly based on socioeconomic status. The district court found that all of defendant’s contributions, not merely his monetary ones, were exceptional. This case was distinguishable from U.S. v. Morken, 133 F.3d 628 (8th Cir. 1998), where the court essentially found that, given Morken’s station in life, his contributions were not extraordinary. Here, defendant’s good deeds were of a different nature and degree than the somewhat impersonal giving in Morken. The district court found that defendant’s acts of personal kindness and good works were above and beyond customary political or charitable giving. U.S. v. Serafini, 233 F.3d 758 (3d Cir. 2000).
3rd Circuit rules Korean immigrant did not present facts warranting a downward departure based upon cultural differences. (660) Defendant, a Korean immigrant, attempted to bribe an IRS agent with $5,000 after being advised that he owed $27,000 in tax deficiencies and penalties. He urged the district court to depart downward based upon the cultural differences between Korea and the United States. The 3rd Circuit, assuming without deciding that in some cases cultural differences might justify a downward departure, found defendant did not present such a case. Defendant had been in the country for 12 years and was a naturalized citizen when he committed the offense. He was a professional tax preparer who had accumulated property and thus had some familiarity with United States laws. He had some college level and legal education in this country, and extensive education in Korea. Defendant almost admitted that he knew his actions were a crime. The obvious conclusion was that defendant was motivated by a desire to save $22,000, not his belief that he was culturally bound to offer the bribe. Judge Becker dissented. U.S. v. Yu, 954 F.2d 951 (3rd Cir. 1992).
3rd Circuit reverses downward departure based on defendant’s youthfulness, cooperation with authorities and family responsibilities. (660) Defendant was classified as a career offender based on three prior felonies, two of which occurred within several months of each other when defendant was 18 years old. The district court departed downward based on defendant’s youthfulness and immaturity at the time he committed two of the prior offenses, the short time span between the commission of the offenses, defendant’s prior cooperation with authorities and his dependent child. The 3rd Circuit reversed, finding that all of theses factors were adequately considered by the Sentencing Commission. A defendant’s cooperation is not grounds for departure absent a government motion. A defendant’s family responsibilities are also not ordinarily relevant. Judge Rosenn, dissenting, would have permitted a downward departure, and argued for a more flexible application of the career offender guidelines. U.S. v. Shoupe, 929 F.2d 116 (3rd Cir. 1991).
4th Circuit rejects family ties departure despite overcoming past to become responsible parent. (660) Defendant pled guilty to a drug conspiracy. His PSR noted that he had had “insufferable demands” placed upon him as a child as a result of drug-induced parental neglect. After becoming a father at age 14, defendant demonstrated responsibility by refusing to allow the child to become a ward of the state, and assumed a responsible and consistent parenting role. Section 5H1.12 bars a downward departure based on lack of youthful guidance. The district court departed under § 5H1.6, finding that the way in which defendant rose above his upbringing to take responsibility for his own children showed extraordinary family ties. The Fourth Circuit reversed. Defendant’s family situation was not extraordinary. He was 21, living with a 16-year old and their 3-month old child. He also had fathered 3 other children, ages 6, 4, and 3, who resided with their mother. Other than mentioning defendant’s disadvantaged upbringing, the district court gave no reason for concluding that defendant’s family responsibilities were unusual. U.S. v. Wilson, 114 F.3d 429 (4th Cir. 1997).
5th Circuit holds post-conviction community service did not warrant downward departure. (660) The district court departed downward because of the extent of defendant’s community service since conviction, which included worldwide musical performances, organizing benefit shows for various social service and charitable organizations, and working in a music program in the local public schools. The 5th Circuit held that defendant’s post-conviction community service did not warrant a downward departure. He engaged in the type of community service he did because of the skills he developed as a professional musician. Under sections 5H1.2 and 5H1.5, a defendant’s professional and vocational skills and a defendant’s employment record are not ordinarily relevant in determining whether to depart. Moreover, a departure decision based on evidence about a defendant’s character, whether it relates to his character before or after conviction, is inconsistent with the guidelines. U.S. v. O’Brien, 18 F.3d 301 (5th Cir. 1994).
5th Circuit finds nothing extraordinary about defendant’s age or health to justify downward departure. (660) Defendant argued that the district court should have departed downward from the guidelines because of his advanced age and poor health. The 5th Circuit upheld the refusal to depart. Although the language in sections 5H1.1 and 5H1.4 suggests that there may be extraordinary circumstances where age and health may be relevant to the sentencing decision, there was nothing about defendant’s age (55) or health (cancer in remission, high blood pressure, a fused right ankle, an amputated left leg, and drug dependency) that would justify such a departure. The judge’s statement that “the only way we’re going to take care of this man’s health problems is to keep him locked up because his self cure is not very good” did not show the judge refused a downward departure because of defendant’s health problems. U.S. v. Guajardo, 950 F.2d 203 (5th Cir. 1991).
5th Circuit remands because sentencing judge may have improperly considered defendants’ socioeconomic status. (660) Defendant was one of five defendants sentenced on drug trafficking charges. In response to defendant’s request for a downward departure, the judge commented upon defendant’s high intelligence, his material advantages, and his educational opportunities, suggesting that an individual with such advantages might be punished more harshly under the law than one with mitigating circumstances. The judge then reiterated these comments to at least one of the other defendants. The 5th Circuit vacated the sentences of all five defendants and remanded for resentencing. A defendant’s socioeconomic status is never relevant for sentencing. Although the judge, acting as amicus curiae, contended that he was merely lecturing the defendants, the 5th Circuit found that it could not ascertain whether from the record whether the judge considered the impermissible factors. U.S. v. Hatchett, 923 F.2d 369 (5th Cir. 1991).
5th Circuit permits consideration of defendant’s potential for rehabilitation in sentencing within the range. (660) The district court erroneously concluded that defendant’s rehabilitative potential was irrelevant in determining his sentence within the applicable guideline range. The 5th Circuit vacated the sentence and remanded. Although a defendant’s personal characteristics may not be considered as support for a downward departure, a court has broad discretion in imposing a particular sentence within the guideline range. Although the sentencing guidelines reject the rehabilitation model, they do not preclude consideration of a defendant’s rehabilitative potential as a mitigating factor within the applicable range. U.S. v. Lara-Velasquez, 919 F.2d 946 (5th Cir. 1990).
5th Circuit holds guideline sentencing is based upon offense, not character. (660) The 5th Circuit held that guidelines sentences are to be based on the characteristics of the offense committed, not the character of the defendant. Thus, it was improper for the district court to depart from the appropriate range because it “found” that “there is something good in [the defendant]”. Such sentencing considerations “partake of the model of penology that Congress rejected in the Sentencing Reform Act.” U.S. v. Reed, 882 F.2d 147 (5th Cir. 1989).
6th Circuit upholds sentence at bottom of guideline range for child porn defendant. (660) Defendant pled guilty to distribution of child pornography, and was sentenced to 151 months, which fell at the bottom of his advisory guideline range. He had requested a down-ward departure and/or variance based on his extraordinary contribution to his country as a soldier, and his lack of criminal history. The Sixth Circuit upheld defendant’s sentence. Although § 5H1.11 identifies military service as a possible ground for a downward departure, Congress has specifically instructed that child crimes and sexual offenses are to be treated differently than other types of crimes. The sole grounds permissible for a downward departure are those “expressly enumerated” in Part 5K. See Note 4(B) to § 5K2.0. Defendant’s argument for a variance was beyond the scope of review. Defendant did not establish that his sentence was substantively unreasonable. Defendant’s offense was severe. He downloaded more than 1000 images and videos containing child porn, exchanged the porn with nearly 50 people, including women with children, tried to get the women to groom the child for sexual activity, and made plans to sexually abuse the child. U.S. v. Reilly, 662 F.3d 754 (6th Cir. 2011).
7th Circuit reverses for failure to consider defendants’ unusually strong evidence of rehabilitation. (660) In the late 1990s, defendants were involved in a mortgage fraud scheme. After the scheme collapsed, defendants were not charged with any crimes. They rebuilt their life, were gainfully employed, raised their three children, volunteered in the community, and did not engage in any criminal activity from 1999 to 2010, other than a reckless driving offense. In 2010, the government charged defendants with several counts of fraud. They argued on appeal that the sentencing judge failed to adequately consider their unusually strong evidence of self-motivated rehabilitation. The Seventh Circuit agreed, and remanded for resentencing. Demonstrated self-motivated rehabilitation is direct and relevant evidence of the need for the sentence imposed “to afford adequate deterrence to criminal conduct” and “to protect the public from further crimes of the defendant.” Here, over a “relatively significant amount of time,” defendants had demonstrated “that they [could] stay out of trouble.” The court’s silence on this issue made it impossible to discern whether it appropriately balanced defendants’ rehabilitated lives against the seriousness of their offenses. U.S. v. Robertson, 648 F.3d 858 (7th Cir. 2011).
7th Circuit holds that departure based on defendant’s cultural heritage was abuse of discretion. (660) Defendant was a Mexican woman who helped her boyfriend in a drug conspiracy. The district court departed downward by 25 levels because of defendant’s “cultural heritage.” It found that Mexican cultural norms dictated defendant’s submission to her boyfriend’s will. Moreover, she had taken up with him in defiance of her family’s wishes and it would have been humiliating for her to break with him and return to her family, especially since she was pregnant with his child. The government argued that the departure was barred by § 5H1.10, which provides that “race, sex, national origin, creed, religion, and socio-economic status” are not grounds for a departure. The Seventh Circuit agreed that the government’s argument had “considerable force,” but found it unnecessary to decide whether such cultural factors can ever be the basis of a departure. Instead, the panel ruled only that the sentencing judge abused his discretion in granting this defendant such a departure. What the judge regarded as a matter of cultural heritage was just the joinder of gender and national origin, two expressly forbidden grounds for departure. Because defendant was a Mexican woman, she may have been more likely to participate in her boyfriend’s criminal activity than if she had been an Anglo male. To use that as a basis for departure would wreak havoc on § 5H1.10. U.S. v. Guzman, 236 F.3d 830 (7th Cir. 2001).
7th Circuit upholds refusal to depart for military service that occurred 25 years ago. (660) Defendant argued that the judge should have departed under § 5H1.11 based on his “exemplary military service.” The Seventh Circuit affirmed the denial of the departure. The judge determined that defendant’s military service, although exemplary, occurred 25 years ago and was not so extraordinary as to be a mitigation against his crime. U.S. v. Given, 164 F.3d 389 (7th Cir. 1999).
8th Circuit finds court did not improperly lengthen sentence to promote rehabilitation. (660) Defendant pled guilty to bank robbery, and was sentenced within the guidelines to 63 months. The Eighth Circuit rejected defendant’s argument that the district court impermissibly lengthened his sentence to promote rehabilitation. Defendant’s attorney requested a downward departure to a sentence between 36-48 months, which would permit defendant to complete the BOP’s 500-hour drug treatment program. The court interrupted to point out that defendant could not possibly complete the drug program if he received a 36-month sentence. Counsel then clarified that a 48-month sentence would permit defendant to complete the program. In sentencing defendant to 63 months, the court emphasized that defendant had continuously committed crimes since he was 17, despite having served an 8-year prison sentence. The court also recommended that defendant enter the BOP’s treatment program. On this record, the panel was not convinced that the court lengthened defendant’s sentence to promote rehabilitation. Rather, it was defendant who requested a downward variance based on his rehabilitative needs, and the court merely pointed out a flaw in his request. U.S. v. Blackmon, 662 F.3d 981 (8th Cir. 2011).
8th Circuit says court did not have authority to suspend part of sentence based on post-offense rehabilitation and religious conversion. (660) The court sentenced defendant to 137 months’ imprisonment. After hearing how defendant had “seemingly travel[ed] the straight and narrow path and sa[id] that [he had] seen the light,” the court reconsidered its position and suspended 77 months of that sentence. The Eighth Circuit held that the district court erred in imposing a suspended sentence in the absence of the statutory authority to do so. Moreover, even if the court’s actions could be viewed as a 45% downward variance based on defendant’s post-offense rehabilitation and religious activity, the panel refused to modify defendant’s sentence to one of 60 months’ imprisonment. The fact that defendant experienced a religious awakening was not a relevant sentencing consideration. See U.S.S.G. § 5H.10. Further, the panel was not convinced that the district court would have imposed a sentence of 60 months’ imprisonment, standing alone, had it been aware that it could not use the deterrence effect inherent in a suspended sentence. U.S. v. Ross, 487 F.3d 1120 (8th Cir. 2007).
8th Circuit finds perjury at trial showed that post-offense rehabilitation did not justify departure. (660) Defendant distributed cocaine from June 1997 to October 1998. When his wife learned he was using cocaine, she gave him an ultimatum to stop using drugs. Shortly thereafter, he quit using cocaine and voluntarily separated himself from the local drug scene. He was indicted and arrested in April 2002. At trial, he committed perjury by lying about his relationship with a number of witnesses who testified against him. The district court departed downward under § 5K2.0, citing a number of discouraged factors, including defendant’s relationship with his wife, educational achievement, professional success, community status, and voluntary drug rehabilitation. The Eighth Circuit reversed. Although defendant changed his lifestyle by ending his drug use, his false testimony at trial showed that his post-offense rehabilitation was not sufficient to support a downward departure. The rest of defendant’s circumstances, by themselves, were not of a kind or degree to justify a departure. U.S. v. Willey, 350 F.3d 736 (8th Cir. 2003).
8th Circuit rules that court did not improperly consider defendant’s national origin. (660) Defendant, a Cuban national who had been granted asylum in the U.S., argued that his sentence was improper because at sentencing the district court mentioned defendant had “been given an opportunity to come to the United States.” Defendant argued that this statement indicated that the court considered his national origin in determining his sentence, in violation of U.S.S.G. § 5H1.10. The Eighth Circuit ruled that the record did not show that the court improperly considered defendant’s national origin. The court’s statement was a reference to defendant’s being given asylum in the U.S. There was no mention that defendant came from Cuba. Thus, the statement was not necessarily a reference to “national origin.” Moreover, even if the statement was such a reference, there was insufficient evidence to show that national origin was a factor in the sentence imposed on defendant. The court stated three factors which warranted imposing the maximum sentence. The court said that defendant: (1) failed to show remorse for drug dealing; (2) failed to accept responsibility for drug dealing; and (3) impugned the integrity of a detective. In outlining these factors, the court made no reference to national origin. The statement regarding defendant’s political asylum was not made as part of an explanation for the sentence imposed. U.S. v. Pena, 339 F.3d 715 (8th Cir. 2003).
8th Circuit sentences at top of guideline range because defendant operated faith-based counseling service. (660) In September 1995, defendant and his wife filed a Chapter 7 bankruptcy petition that failed to disclose certain assets. The PSR noted that from 1990 through August 1997 defendant operated the Amazing Grace Ministry Christian Counseling Service. At sentencing, the district court sentenced defendant at the top of the applicable guideline range based in part upon the “hypocrisy” reflected by defendant’s operation of a faith-based counseling service at the same time he engaged in bankruptcy fraud. Defendant argued the court violated § 5H1.10 by increasing his punishment based on his religious beliefs. The Eighth Circuit held that the court’s consideration of defendant’s operation of the counseling service did not violate § 5H1.10. The court did not punish defendant for his religious beliefs, nor did not hold him to a higher standard based on his professed faith. Instead, defendant’s sentence “properly reflect[ed] the inconsistency between his assumption of moral leadership with respect to his clients and his simultaneous commission of bankruptcy fraud. This sort of inquiry into the degree of a defendant’s blameworthiness is entirely appropriate to the court’s selection of a sentence within the guideline range.” U.S. v. Gunderson, 211 F.3d 1088 (8th Cir. 2000).
8th Circuit departs for charitable activities. (660) The district court granted defendant a one-level departure based on defendant’s charitable activities. The Eighth Circuit upheld the district court’s finding that defendant’s charitable efforts were exceptional. Defendant brought into her own home two troubled young women, one of whom was a former employee who had stolen from defendant. The other was defendant’s niece, who had had difficulty living at home, and had dropped out of school. Defendant paid for the women to attend a private high school, and both had graduated and become productive members of society. Defendant also helped an elderly friend, unhappy living in a nursing home, move into an apartment near her home. She helped care for him, and he was able to live out his remaining years with greater independence. U.S. v. Woods, 159 F.3d 1132 (8th Cir. 1998).
8th Circuit reverses downward departure for spouse abuse, post-arrest education, and victim’s conduct. (660) Defendant stabbed a woman who was in the company of defendant’s boyfriend. The district court departed downward because the defendant had been abused by her husband, and because she had obtained her GED degree after arrest, and because of the victim’s wrongful conduct. The 7th Circuit reversed, noting that section 5H1.3 states that emotional conditions are not ordinarily relevant in determining whether to depart. Defendant’s circumstances were not sufficiently unusual: the abuse occurred three years earlier, and her present boyfriend was not the abuser. Under section 5H1.2, education is not ordinarily relevant in determining whether to depart, and defendant’s attainment of the GED was not sufficiently extraordinary. Finally, the victim’s wrongful conduct did not provoke the offense as required for departure under section 5K2.10. Although the victim may have breached dating etiquette, that was not wrongful. U.S. v. Desormeaux, 952 F.2d 182 (8th Cir. 1991).
9th Circuit says need for rehabilitation may not affect length of term imposed after supervised release is revoked. (660) Defendant was convicted of bank fraud and sentenced to prison and supervised release. Defendant violated the terms of his supervised release, and the district court revoked his supervised release and sentenced him to 24 months’ incarceration. The judge explained that he was giving defendant more time in prison so that the defendant could receive drug and alcohol abuse treatment and break his cycle of abuse. The Ninth Circuit held that a court may not consider rehabilitation in determining the amount of time a defendant receives for a supervised release violation. U.S. v. Grant, 664 F.3d 276 (9th Cir. 2011).
9th Circuit reverses where court may have improperly based sentence on need for rehabilitation. (660) In Tapia v. U.S., 131 S.Ct. 2382 (2011), the Supreme Court held that a sentencing court may not impose or lengthen a prison term to promote an offender’s rehabilitation. In explaining the reasons for imposing a sentence at the high-end of defendant’s guidelines range, the district court repeatedly cited defendant’s struggles with substance abuse and her need to be enrolled in a drug treatment program. The court specifically noted that one of the factors that affected the length of defendant’s sentence was the need to provide drug abuse treatment. The government conceded that the district court had improperly considered the need to rehabilitate defendant but argued that defendant was not prejudiced. The Ninth Circuit held that because there was a reasonable possibility that the court’s consideration of defendant’s rehabilitative needs affected the length of her sentence and vacated and remanded for resentencing. U.S. v. Tapia, 665 F.3d 1059 (9th Cir. 2011)
9th Circuit says status as deportable alien may not justify departure. (660) The district court departed downward by three levels on the ground that defendant’s status as a deportable alien made her ineligible for (1) incarceration at a minimum security facility and (2) community confinement, which can be for up to ten percent of the sentence but no more than six months. The D.C. Circuit held that this could be a basis for departure in rare cases. U.S. v. Smith, 27 F.3d 649 (D.C. Cir. 1994). However, other circuits have held that this basis for departure is not appropriate. U.S. v. Restrepo, 999 F.2d 640, 645 (2d Cir. 1993); U.S. v. Nnanna, 7 F.3d 420, 422 (5th Cir. 1993); U.S. v. Mendoza-Lopez, 7 F.3d 1483, 1487 (10th Cir. 1993). In this case, the Ninth Circuit held that the district court did not make sufficient findings to satisfy the requirements for a departure under the Supreme Court’s new decision in Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996). The case was remanded with instructions to consider why defendant was ineligible for minimum security and community confinement “bear[ing] in mind the Commission’s expectation that departures based on grounds not mentioned in the guidelines will be “highly infrequent.” U.S. v. Cubillos, 91 F.3d 1342 (9th Cir. 1996).
9th Circuit finds male drug carriers were not treated more harshly than females in plea bargaining. (660) In U.S. v. Redondo-Lemos, 955 F.2d 1296 (9th Cir. 1992), the 9th Circuit remanded this case to determine whether the U.S. Attorney was violating equal protection by treating male drug carriers more harshly in plea bargaining than females. On remand, several AUSAs testified about their plea bargaining decisions as to the three defendants in this case and ten other cases the district judge cited to support his finding of gender-based selective prosecution. Despite testimony of neutral reasons for treating males and females differently, the district judge found discrimination, and departed downward from the mandatory minimum sentences. On appeal, the 9th Circuit reversed, rejecting the district court’s findings for lack of sufficient evidence, and stressing the “extreme deference the courts must give to prosecutorial charging decisions.” U.S. v. Redondo-Lemos, 27 F.3d 439 (9th Cir. 1994).
9th Circuit rejects downward departure, but suggests “youthful lack of guidance departure” on remand. (660)) The 9th Circuit reaffirmed its ruling in U.S. v. Martin, 938 F.2d 162 (9th Cir. 1991) that “a defendant’s post-arrest drug rehabilitation efforts afford no basis for downward departure.” Moreover, although U.S. v. Cook, 938 F.2d 149, 153 (9th Cir. 1991) held that a “unique combination of factors “may constitute a mitigating circumstance justifying a downward departure, the other factors relied on here could not justify a departure, i.e. (1) defendant’s age of 46 years, (2) his reduced mental capacity due to drug abuse, (3) his drug dependence, (4) his ability to maintain full-time employment until crack abuse took over his life, and (5) his lack of family ties at an early age. However, the 9th Circuit suggested that on remand, the district court “may wish to consider” a departure under U.S. v. Floyd, 945 F.2d 1096 (9th Cir. 1991), amended, 956 F.2d 203 (9th Cir. 1992) for “youthful lack of guidance.” U.S. v. Anders, 956 F.2d 907 (9th Cir. 1992).
9th Circuit rules that 18 U.S.C. 3661 does not conflict with Sentencing Guidelines. (660) The district court published an opinion in U.S. v. Boshell, 728 F.Supp. 632 (E.D. Wash. 1990), ruling that there was a conflict between 18 U.S.C. section 3661 (which provides that no limit shall be placed on information concerning character, background and conduct of the defendant in determining sentence), and Guideline sections 5H1.1 to 5H1.6, which limit the use of specific offender characteristics in sentencing. On appeal, the 9th circuit found no conflict, ruling that the two provisions “may be reconciled by limiting consideration of offender characteristics to adjustments within the guideline range, and allowing departures from this range for offender characteristics only in extraordinary circumstances.” U.S. v. Boshell, 952 F.2d 1101 (9th Cir. 1991).
9th Circuit upholds Commission’s decision to make offender characteristics “not ordinarily relevant.” (660) Defendant argued that guideline § 5H1.1 was contrary to the intent of Congress because it provides that certain aspects of a defendant’s background and character are “not ordinarily relevant in determining whether a sentence should be outside the guidelines.” The 9th Circuit rejected the argument, noting that even in the ordinary case, a court may still consider any of these factors in making adjustments within the guideline range. The court held that the Commission’s decision to deem these factors “not ordinarily relevant” to departure determinations “accords fully with Congress’s expression in 18 U.S.C. § 994(c) of the ‘general inappropriateness’ of considering them in sentencing.” U.S. v. Mondello, 927 F.2d 1463 (9th Cir. 1991).
9th Circuit rejects defendant’s possible deportation as a basis for downward departure. (660) Defendant argued that the case should be remanded because the district court did not understand that departure for deportation reasons was permissible. The 9th circuit disagreed, ruling that defendant’s possible deportation as a result of his conviction was not an appropriate basis for departure. “[D]eportation is quite similar to the factors set forth in U.S.S.G. 5H1, which are considered inappropriate grounds for departure in most instances.” U.S. v. Alvarez-Cardenas, 902 F.2d 734 (9th Cir. 1990).
10th Circuit rejects lack of sophistication, family responsibilities and race as grounds for departure. (660) Defendant was convicted of forcible rape. He argued that the district court erroneously believed it lacked authority to depart downward based on his lack of sophistication, his responsibilities as a husband and father, and his being raised on an Indian reservation. The 10th Circuit found no error. Sections 5H1.6 and 5H1.10 state that family and community ties and race are irrelevant for departure purposes. Furthermore, while not foreclosing the possibility that lack of sophistication could provide a valid basis for departure, depending on the crime and the circumstances, forcible rape is not a crime where lack of sophistication could justify a departure. U.S. v. Talk, 13 F.3d 369 (10th Cir. 1993).
11th Circuit affirms despite court’s comments about defendant’s status as Cuban refugee. (660) At sentencing, the judge noted that this was a “disturbing case” because defendant came to the country as a Cuban refugee seeking freedom, “and the first thing she does is she rips off the Government for $19 million.” Defendant argued for the first time on appeal that this comment created the appearance that her sentence was based at least in part on her national origin. The Eleventh Circuit reviewed for plain error, rejecting defendant’s request for an exception to the contemporaneous objection rule for objections suggesting that the district judge was biased or created the appearance of bias. Defendant could not meet this standard. It was doubtful there was error, let alone plain error. It was unlikely that a reasonable observer, aware of the record facts, would have inferred that the court imposed a longer sentence on defendant because of how she came to reside in this country. Defendant’s sentence was 91 months, which was a 60-month variance below the low end of the advisory range of 151-188 months. U.S. v. Rodriguez, 627 F.3d 1372 (11th Cir. 2010).
11th Circuit rejects downward departure for owning a business, supporting minor children and mother, and trouble-free past. (660) The district court departed downward because defendant (a) had a business which could “go under” if she was not there to run it, (b) supported her two minor children and her mother, and (c) had never been in trouble in the past. The 11th Circuit found that none of these factors, either individually or in combination, were sufficiently extraordinary to overcome the strong presumption against downward departures on the basis of offender characteristics established in section 5H of the guidelines. Moreover, defendant’s trouble-free past was an inappropriate ground for departure because her placement in criminal history category I already reflected the absence of prior brushes with the law. A departure below the lower limit of the guideline range for a category I offender on the basis of adequacy of criminal history cannot be appropriate. U.S. v. Mogel, 956 F.2d 1555 (11th Cir. 1992).
11th Circuit holds that in extraordinary cases a court may depart downward based upon specific offender characteristics. (660) The 11th Circuit held that in extraordinary circumstances, a district court may depart downward on the basis of specific offender characteristics listed in guideline sections 5H1.1-6. This is also true for offender-related characteristics not considered by the guidelines. Nevertheless, a judge’s discretion to depart on the basis of offender-related characteristics must remain within the “penological framework” established by the guidelines. For example, the placement of an offender within criminal history I reflects the sentencing commission’s assessment that the offender possesses the lowest possible likelihood of recidivism. The low end of the range applicable to a category I offender specifies the sentence appropriate for an offender who is so unlikely to engage in future criminal conduct as to not warrant imprisonment for incapacitative purposes. A judge therefore may not depart downward from a category I sentence on incapacitative grounds. Rehabilitative considerations have been declared irrelevant for purposes of deciding whether or nor to impose a prison sentence. Therefore, a judge may depart from a category I sentence on the basis of offender-related characteristics only if considerations of general deterrence or retribution counsel such a departure.
Article says Koon has led to more departures for civic, charitable and public service. (660) Attorney Alan Ellis points out that, after Koon v. U.S., 518 U.S. 81 (1996), the Supreme Court vacated and remanded a Sixth Circuit case that had reversed a downward departure for defendant’s extraordinary charitable contributions. On remand, the district court reaffirmed its departure, and this time on appeal, the government conceded (and the Sixth Circuit agreed) that civic works were indeed a proper basis for a downward departure. The case was, however, remanded to reconsider the extent of the departure. U.S. v. Crouse, 145 F.3d 786 (6th Cir. 1998). Another post-Koon case, U.S. v. Rioux, 97 F.3d 648 (2d Cir. 1996) affirmed a downward departure based on the defendant’s charitable fund-raising efforts and civic accomplishments, as well as his poor medical condition. Accordingly, the author says charitable, public service, and good works should not be overlooked in seeking downward departures. Alan Ellis, Post-Koon Downward Departure: Part IV, Civic, Charitable or Public Service, ABA Criminal Justice 39 (Fall, 1998).
Article encourages departures for post-offense rehabilitation. (660) In the second of three articles on departures, defense attorney Alan Ellis notes that after the decision in U.S. v. Koon, 116 U.S. 2035 (1995), a number of courts have held that post-offense rehabilitation is a proper ground for a downward departure. See U.S. v. Brock, 108 F.2d 31 (4th Cir. 1997) (remanding for specific findings on “exceptional” rehabilitation); U.S. v. Sally, 116 F.3d 76 (3rd Cir. 1997) (remanding for possible departure where defendant was seventeen years old when he was convicted of crack and gun charges, and had since earned his GED and nine college credits); U.S. v. Barton, 76 F.3d 499 (2d Cir. 1996) (reversing downward departure in child pornography case, but acknowledging that extraordinary rehabilitation may be a basis for departure); U.S. v. Shafky, 939 F.Supp. 695 (D. Neb. 1996) (departing downward in child pornography case where defendant had entered a nationally recognized sex offender program at the University of Minnesota Medical School and had an excellent long-term prognosis with minimum risk of re-offending); U.S. v. Kapitzke, 130 F.3d 820 (8th Cir. 1997) (holding that post-offense rehabilitation efforts in child pornography case may justify downward departure where defendant had undergone eight months of sex offender and chemical dependency treatment with a high probability of success). The author discusses numerous other cases and analyzes post-offense rehabilitation in the sentencing guidelines themselves. Alan Ellis, Let Judges Be Judges! Post-Koon Downward Departures: Part II: Post-Offense Rehabilitation, ABA Criminal Justice 51 (Spring 1998).
Articles explore new approaches to offender characteristics. (660) A series of articles in the Federal Sentencing Reporter discuss the Commission’s staff discussion paper on departures and offender characteristics. John H. Kramer, the Staff Director for the U.S. Sentencing Commission, argues that “the Commission’s belief that the guidelines fulfill the full range of purposes mandated for courts to consider oversimplifies the complexity of the issue and needs to be re-examined.” Robin L. Lubitz, Executive Director of the North Carolina Sentencing and Policy Advisory Commission, describes how North Carolina has dealt with offender characteristics and departures. Professor David Boerner, advisor to the Washington Sentencing Guidelines Commission since 1981, offers suggestions for offender characteristics based on his experience with the Washington guidelines. Sandra Shane-DuBow, former executive director of the Wisconsin Sentencing Commission, comments on the staff discussion paper’s comparison of federal and state systems with regard to offender characteristics. Finally, Federal Defender Jon M. Sands expresses “reservations” about departure reform as it relates to Indian crimes. Nora V. Demleitner, Editor, New Approaches to Offender Characteristics, 9 Fed. Sent. Rptr. 124 (1996).
Article notes possible reasons for expanding factors considered under guidelines. (660) In a book review suggests reform of the guidelines based on a study of preguidelines sentencing, S. Wheeler, K. Mann & A. Sarat, Sitting in Judgment: The Sentencing of White-Collar Criminals (1988). According to the study, preguidelines sentencing was not as unprincipled as is commonly depicted; indeed, judges tended to agree on the factors that were important in determining sentence. Among those factors were specific characteristics of the offender’s situation that, Young notes, are often difficult to consider under the guidelines system. Further development of the guidelines system to accommodate such factors might be warranted, Young concludes. Deborah Young, Federal Sentencing: Looking Back to Move Forward, 60 Cinn. L. Rev. 135-51 (1991).
Commission relaxes departures for age, mental and physical condition and military service. (660) In response to the increased use of variances, the Sentencing Commission revised the Introductory Commentary to Chapter 5H to explain that the purpose of the specific offender characteristics guidelines is to provide a framework for addressing specific offender characteristics in a reasonably consistent manner. The Commission also amended sections 5H1.1 (Age), 5H1.3 (Mental and Emotional Conditions), and 5H1.4 (Physical Condition including Drug or Alcohol Dependence or Abuse; Gambling Addiction). The amendments provide that these specific offender characteristics “may be relevant in determining whether a departure is warranted” if the characteristic “is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.” The Commission also amended § 5H1.11 to provide that military service “may be relevant in determining whether a departure is warranted,” if it is present “to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.” Amendment 739, effective November 1, 2010).