§680 Physical and Mental Conditions, Drug and Alcohol Abuse
(U.S.S.G. §§5H1.3 -.4)
6th Circuit affirms within-guidelines life sentence for sex crime despite defendant’s mental illnesses. (310) (680) Defendant was convicted of sexual exploitation of a minor. At sentencing, he sought a downward variance because of his bipolar disorder and schizophrenia. The district court acknowledged defendant’s mental health but sentenced him to a within-guidelines sentence of life. The Sixth Circuit affirmed, finding that the district court considered all applicable factors and the sentence was substantively reasonable. U.S. v. Clayton, __ F.3d __ (6th Cir. Aug. 30, 2019) No. 18-2237.
8th Circuit rejects sentence challenge based on difficult childhood. (680) Defendant pleaded guilty to possession of a firearm by a felon, and his guidelines range was 57 to 71 months. Defendant sought a variance down to 36 months, but the district court sentenced him to 57 months. On appeal, defendant argued that his sentence was substantively unreasonable because he had had a difficult childhood. The Eighth Circuit found the within-guidelines sentence justified by defendant’s criminal history and the need to protect the public. U.S. v. Dunn, __ F.3d __ (8th Cir. June 25, 2019) No. 18-2393.
2d Circuit affirms sentence at statutory maximum despite claim of mental illness. (680)(742) Defendant pleaded guilty to conspiracy to provide material support to a foreign terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1), based on his plan to kill people at a nightclub. His guideline range exceeded the statutory maximum of 240 months, and the district court imposed the statutory maximum. At sentencing, the district court found that defendant’s mental illness “probably” explained “some” of his illegal conduct. On appeal, defendant argued that his sentence was substantively unreasonable because the district court did not sufficiently take into account his mental illness. The Second Circuit held that defendant’s sentence was “within the range of permissible decisions” and therefore was not substantively unreasonable. U.S. v. Lutchman, __ F.3d __ (2d Cir. Dec. 6, 2018) No. 17-291.
1st Circuit rejects request for sentence reduction based on medical condition. (680)(742) Defendant pled guilty to cocaine conspiracy charges. He sought a downward departure under § 5H1.4 based on his physical condition, claiming that his life was in danger and would be shortened by a guideline sentence, since prison facilities would be unable to fully address his medical needs. Nonetheless, the court imposed a 180-month sentence, which fell within his 168-210 month guideline range. On appeal, defendant sought a mandatory minimum sentence of ten years. 21 U.S.C. § 841(b)(1)(A). He relied on his doctor, who reported that defendant had “a reduced survival and shorten[ed] life expectancy ( [five] years or less) in the absence of liver transplantation.” The First Circuit rejected the “flawed reasoning” underlying defendant’s abuse of discretion argument. “A ten-year sentence did nothing to respond to the supposed peril [defendant] faced, namely death within five years without a transplant.” Defendant’s doctor prescribed routine testing on a permanent basis and defendant did not sufficiently demonstrate that the major federal prison medical facilities would be incapable of providing such treatment. Further, if defendant’s condition worsened and the government denied or unduly delayed a transplant, the remedy would be injunctive relief under the Eighth Amendment. U.S. v. Madera-Rivera, __ F.3d __ (1st Cir. Aug. 2, 2018) No. 17-1319.
1st Circuit says sentencing court adequately considered defendant’s drug addiction. (680)(742) Defendant pled guilty to robbery of a controlled substance from a pharmacy by use of a dangerous weapon. His guideline range was 108-135 months, and the district court sentenced him to 120 months. He argued on appeal that the district court erred by failing to consider adequately the effect of his drug addiction on his conduct, as required by 18 U.S.C. §3553(a)(1). The First Circuit disagreed. The district court considered and rejected defendant’s requests for downward departures on the basis of his drug addiction, and he did not challenge those decisions. The district court also allowed defendant to present extensive evidence of his addiction and history. The court acknowledged the nearly 30-year gap since defendant’s last criminal conduct, his pain management issues, and his recent relapse. It then weighed those facts against the nature and circumstances of the crime, which appeared to be preplanned and involved threatening the victims with a firearm and tying them up with zip ties. No more was required. U.S. v. Stile, 845 F.3d 425 (1st Cir. 2017).
1st Circuit approves upward variance for “serious” interstate stalking case. (680)(741)(742) Defendant was convicted of two counts of interstate stalking with intent to harm or kill his estranged wife and her boyfriend. He argued that the district court erred by denying him a downward departure (or variance) for his mental and physical condition, as permitted by §§5H1.3 and 5H1.4. Aware of the seriousness of defendant’s health and mental problems, the district court recommended a special assignment to the Bureau of Prisons, but it did not reduce defendant’s sentence. The First Circuit ruled that this choice was not an abuse of discretion. The 100-month sentence, which represented a 37-month upward variance, was substantively reasonable. Citing defendant’s letter to his son, in which defendant threatened his own death, items found in defendant’s car (weapons, duct tape, handcuffs, plastic bags and sheeting, rope, rubber gloves, and maps identifying his wife’s home), and defendant’s knowledge of the layout of his wife’s house, the district court concluded that “[t]his was a serious interstate stalking case” that “created exceeding danger.” While recognizing defendant’s medical issues, the district court also noted that defendant still did not recognize the seriousness of his conduct. U.S. v. Lee, __ F.3d __ (1st Cir. June 12, 2015) No. 14-1042.
1st Circuit approves three-level downward departure for defendant with Crohn’s disease. (680) Departures based on physical condition are discouraged, U.S.S.G. § 5H1.4; a defendant’s physical impairment must be “extraordinary” to warrant a departure. For more than 30 years, defendant suffered from Crohn’s disease, a malady of small intestine that can cause periodic episodes of obstruction and acute abdominal pain. The district found that defendant “would be unusually susceptible to harm in prison because of his multiple disabilities and indeed would be extremely vulnerable to the risk of death because of an emergency need of medical and surgical conditions. The First Circuit agreed with the district court’s decision to depart by three levels. Defendant submitted a letter from his gastroenterologist of 31 years stating that should Demerol not be available to defendant, with 6 to 12 hours he could develop a bowel obstruction that could require urgent surgery. Moreover, defendant suffered from a suppressed immune system as a result of continued steroid therapy necessary to treat Crohn’s disease. Defendant’s internist stated that confinement in a correctional facility would place defendant “at unacceptable risk for serious infectious disease.” U.S. v. Martin, 363 F.3d 25 (1st Cir. 2004).
1st Circuit cannot review where court was aware of discretion to depart. (680) Defendant sought review of the district court’s decision not to depart downward pursuant to U.S.S.G. § 5H1.4, which authorizes a departure for “an extraordinary physical impairment.” At sentencing, defendant presented evidence that he had only one remaining kidney as a result of an emergency nephrectomy performed in 1985, suffered from cirrhosis and calcified arteries, and had a demonstrated family history of hearth disease. Missing from the record was any evidence that the Bureau of Prisons would be unable to provide the appropriate treatment for him or that incarceration itself would aggravate his condition. The First Circuit upheld the district court’s refusal to depart, finding the district court clearly recognized its authority to depart, and declined to exercise that authority. There was nothing in the record to suggest that the court believed that it lacked the legal authority to depart under § 5H1.4. Instead, the court reviewed the circumstances, understood it had the discretion to depart, and concluded that the circumstances were not sufficiently extraordinary to warrant a departure. This was a judgment call, not one reviewable on appeal. U.S. v. Lujan, 324 F.3d 27 (1st Cir. 2003), habeas corpus granted in part by Lujan v. U.S., 2004 WL 2044302 (D.N.H. Sep. 14. 2004) No. CIV 04-247-SM.
1st Circuit refuses to depart for HIV defendant in good physical condition. (680) Defendant requested a downward departure because she was HIV positive and her dependent child had AIDS. The First Circuit held that the district court properly recognized that it lacked the authority to depart downward, because defendant’s medical and physical condition did not constitute an “extraordinary physical impairment.” Although defendant was HIV positive, she did not have advanced AIDS. Defendant remained in relatively good physical condition. The Bureau of Prisons determined that defendant had no difficulty with either her emotional or physical health. As for the fact that her son has AIDS, the district court recognized that it had the power to depart in exceptional family circumstances. Since the court fully recognized its authority to depart, but chose not to do so, the appellate court lacked jurisdiction over the claim. U.S. v. Rivera-Maldonado, 194 F.3d 224 (1st Cir. 1999).
1st Circuit rules that § 5H1.4 does not bar “lesser harm” departure for farmer who grew marijuana to combat depression. (680) Defendant was a farmer who grew marijuana for his own use to combat his depression and suicidal tendencies. The district court concluded that the prohibition in § 5H1.4 against considering a defendant’s drug dependency barred a § 5K2.11 “lesser harms” departure. The First Circuit ruled that assuming a proper factual predicate, the court had the authority to consider a § 5K2.11 departure, even if that predicate subsumed particular facts that would be precluded by § 5H1.4 from forming a basis for departure. The two sections do not necessarily conflict. The fact that a factor described in Part H as a discouraged or forbidden ground for departure is present does not itself negate departure based on a permitted ground listed in Part K. Here, where the alternative to defendant’s marijuana growing might well have been the taking of his own life, the interest in punishment or deterrence could reasonably be thought to be reduced. The risk of suicide was not a byproduct of defendant’s drug dependence. Rather, fear that he would take his own life led defendant to use drugs. The avoidance of suicide, not drug use, drives the lesser harms analysis. U.S. v. Carvell, 74 F.3d 8 (1st Cir. 1996).
1st Circuit agrees that defendant’s heart condition did not justify a downward departure. (680) Both defendant’s doctor and an independent doctor stated that defendant had coronary artery disease that required medication and ongoing medical care. The district court refused to depart downward based on health reasons, stating that defendant’s condition did not permit it to depart downward. The 1st Circuit held that the district court fully understood its authority to depart downward. The district court would not have required the parties to obtain an independent physician’s opinion if it believed that a downward departure was forbidden. The district court correctly understood that a departure for medical reasons is discouraged by the guidelines, and found that defendant’s condition was not serious enough to justify such a departure. U.S. v. LeBlanc, 24 F.3d 340 (1st Cir. 1994).
1st Circuit rules court was aware of extent of its ability to depart downward based on defendant’s poor health. (680) Defendant argued that the district court misunderstood the extent to which it could depart downward based on her poor health. First, she contended that the court ruled that guideline section 5H1.4 allows only two choices: a sentence within the guideline range, or no imprisonment at all. The 1st Circuit rejected this argument, noting that although the sentencing judge stated that defendant’s condition did not justify a sentence of no imprisonment, this was in direct response to the argument that defendant should not be incarcerated at all. The 1st Circuit also rejected defendant’s argument that the district mistakenly believed that guideline section 5K2.0 did not furnish a basis for departure independent of section 5H1.4. There was no way that defendant’s physical impairment could be ordinary for purposes of section 5H1.4 and, at the same time, sufficiently out of the ordinary to justify a departure under section 5K2.0. Because the district court understood its authority to depart and exercised its discretion not to, the appellate court lacked jurisdiction to review the matter. U.S. v. Hilton, 946 F.2d 955 (1st Cir. 1991).
1st Circuit affirms denial of downward departure based upon defendant’s drug addiction. (680) Defendant argued that the district court mistakenly believed it lacked authority to depart downward based upon her cocaine addiction. The 1st Circuit upheld the district court’s ruling. Section 5K2.0 presents two avenues to a valid departure: (a) a departure may be based upon a qualitative “kind” of circumstance not considered by the Commission, or (b) a departure may be based upon circumstances which, though con-sidered by the Commission, are present “to a degree” not envisioned nor frequently seen in connection with the offense. Section 5H1.4 states that drug addiction is not a reason for imposing a sentence below the guidelines. Thus, drug dependency was taken into account in the guidelines. Moreover, defendant’s ad-diction was not atypical for a drug offense so as to justify an exception to the general rule in § 5H1.4. U.S. v. Citro, 938 F.2d 1431 (1st Cir. 1991).
1st Circuit affirms denial of downward departure based upon defendant’s drug addiction. (680) Defendant argued that the district court mistakenly believed it lacked authority to depart downward based upon her cocaine addiction. The 1st Circuit upheld the district court’s ruling. Section 5K2.0 presents two avenues to a valid departure: (a) a departure may be based upon a qualitative “kind” of circumstance not considered by the Commission, or (b) a departure may be based upon circumstances which, though con-sidered by the Commission, are present “to a degree” not envisioned nor frequently seen in connection with the offense. Section 5H1.4 states that drug addiction is not a reason for imposing a sentence below the guidelines. Thus, drug dependency was taken into account in the guidelines. Moreover, defendant’s ad-diction was not atypical for a drug offense so as to justify an exception to the general rule in § 5H1.4. U.S. v. Citro, 938 F.2d 1431 (1st Cir. 1991).
1st Circuit affirms denial of downward departure based upon diminished capacity. (680) Defendant argued that the district court incorrectly believed that it lacked authority to depart downward under guideline § 5K2.13 based upon defendant’s diminished mental capacity. The 1st Circuit rejected this argument, finding the judge’s comments reflected that the judge did not depart downward because there was no evidence that defendant’s mental condition played a causative role in the offense, as required by the guideline. The fact that defendant might be victimized in prison due to his diminished capacity was not an independent ground for departure. Defendant’s mental condition also did not provide a ground for departure under guideline § 5K2.0. A person with borderline intelligence or mild retardation who is easily persuaded to follow others does not present a mitigating circumstance not adequately considered by the sentencing com-mission in formulating the guidelines. “Borderline intelligence is not so extraordinary as to overcome the clear mandate of § 5H1.3 that mental conditions ‘are not ordinarily relevant.’” U.S. v. Lauzon, 938 F.2d 326 (1st Cir. 1991).
2nd Circuit finds insufficient evidence that extreme childhood abuse contributed to current offense. (680) The district court granted defendant a five-level downward departure under § 5H1.3 after finding she suffered extraordinary childhood abuse that created a mental or emotional condition that caused her to commit the instant bank fraud. The Second Circuit agreed that defendant suffered extraordinary abuse as a child, but nonetheless reversed the departure. The evidence was insufficient to support a finding that the extreme abuse suffered by defendant contributed to her commission of bank fraud, as required by § 5H1.3 for an upward departure. The many years of abuse endured by defendant was extraordinary – she was violently abused as an infant by both of her birth parents and in later childhood by her adoptive parents, and from ages 11 to 14, she was sexually abused by another family member, and in her adult life, by her boyfriend. However, in order to support a departure, there must be a causal connection between the abuse and the criminal conduct. There was little support in the record for a finding that defendant’s impaired emotional or mental condition led her to engage in a conspiracy to commit bank fraud. U.S. v. Brady, 417 F.3d 326 (2d Cir. 2005).
2nd Circuit says extreme childhood abuse may warrant departure. (680) Although § 5H1.3 says that “[m]ental and emotional conditions are not ordinarily relevant” at sentencing, a defendant’s mental and emotional condition can be taken into account in “extraordinary” situations. See e.g. U.S. v. Lara, 905 F.2d 599 (2d Cir. 1990). Severe abuse suffered during childhood can impair a person’s mental and emotional conditions. Thus, the Second Circuit held that in extraordinary circumstances, district courts may properly depart downward where extreme childhood abuse caused mental and emotional conditions that contributed to defendant’s commission of the offense. The appellate court would not presume that the district court was aware of its authority to depart on this basis, since at the time of sentencing, the Second Circuit had not decided whether extreme childhood abuse could ever warrant a departure. Nonetheless, the panel did not remand for resentencing, because a departure under the facts of this case would have been an abuse of discretion. Although the instances of corporal punishment cited by defendant may have risen to abuse, defendant did not show, as required by § 5H1.3, that the abuse was so extraordinary that it could be assumed to cause mental or emotional pathology. U.S. v. Rivera, 192 F.3d 81 (2d Cir. 1999).
2nd Circuit finds defendant’s physical condition did not merit downward departure. (680) Defendant claimed that the district court was unaware of its authority to depart under § 5H1.4 based on his physical condition. The Second Circuit disagreed, finding that the district court simply concluded that defendant did not have an extraordinary physical impairment. The health problems cited by defendant simply needed monitoring, and the Bureau of Prisons would be able to do such monitoring. U.S. v. Altman, 48 F.3d 96 (2d Cir. 1995).
3rd Circuit reverses downward departure from fraud guideline. (680) Defendants were convicted of fraud for using a school to obtain federal funds for classes that were never conducted. The district court departed downward to sentences of probation with periods of in-home confinement. The court cited (1) defendants’ good works and community support, (2) their lack of an initial intent to defraud, (3) defendant Spicer’s minor role, and (4) the “exculpatory no” doctrine in Spicer’s case. The Third Circuit reversed, finding none of the factors relied upon supported the departures. First, public service and good works are discouraged bases for departures. See § 5H1.1. Most of the good works occurred during work at the school and involved no special sacrifice. As for defendants’ intent, it is inappropriate to consider intent as a departure factor where the crime specified an intent element. Defendant Spicer received a minor role reduction, and the court failed to outline how that role was “exceptional.” Finally, Spicer lied to the grand jury and was convicted of perjury for this lie. U.S. v. Ali, 508 F.3d 136 (3d Cir. 2007).
3rd Circuit holds that court correctly understood discretion to depart for extraordinary physical ailment. (680) Defendant was diagnosed with AIDS in July 1998. At sentencing, he contended that this condition was an extraordinary physical impairment warranting a departure under § 5H1.4. The Third Circuit held that it lacked jurisdiction to review the district court’s refusal to depart. The transcript revealed that the court declined to depart because defendant committed the instant crime after his AIDS diagnosis and because he could obtain adequate medical care while incarcerated. Although one statement by the district court suggested the court incorrectly believed that a terminal illness can never serve as a basis for departure, when viewed in the entire context of the sentencing hearing, this statement did not reflect the district court’s rationale for not departing. U.S. v. Hernandez, 218 F.3d 272 (3d Cir. 2000).
3rd Circuit upholds refusal to provide funds for psychiatrist. (680) The district court denied defendant’s request for CJA funds to retain a psychiatrist. Defendant had wanted a psychiatrist to testify at sentencing in support of his motion for a downward departure based on his mental and emotional condition and his diminished capacity. The Third Circuit upheld the refusal to provide the money for a psychiatrist, ruling that the facts did not merit a downward departure. Defendant claimed that his mental and emotional condition was due to the murder of his father when defendant was only five and his extensive abuse of drugs and alcohol. However, § 5H1.4 states that drug or alcohol dependency or abuse is not a reason for a downward departure. Section 5H1.12 states that lack of youthful guidance is not grounds for departure. Thus, the facts of defendant’s case did not warrant a departure. U.S. v. Roman, 121 F.3d 136 (3d Cir. 1997).
3rd Circuit upholds refusal to depart for physical condition. (680) As a result of a motorcycle accident, defendant suffered injuries to his left arm. He also had a congenital defect in his left eye, affecting the eye muscle. Defendant argued for a departure under § 5H1.4, claiming his extraordinary physical impairment would place him at risk for improper medical treatment in prison and make him a target of other prison inmates. The Third Circuit upheld the district court’s refusal to depart under § 5H1.4 The court’s finding that defendant did not have the kind of impairment that would “warrant” a § 5H1.4 departure meant one of two things: that defendant’s impairment was not extraordinary enough to allow the court to depart under § 5H1.4, or that the impairment was extraordinary enough, but that the court elected not to depart. The first finding would be reviewed for clear error and there was none. The second was not reviewable on appeal. U.S. v. McQuilkin, 97 F.3d 723 (3d Cir. 1996).
3rd Circuit says overstatment of seriousness of offense is no basis for downward departure. (680) The district court departed downward to a 12-month probation term, stating that the guideline sentence overstated the seriousness of defendant’s offense. The 3rd Circuit reversed. There is no provision in the guidelines authorizing a downward departure because the guidelines overstate the seriousness of the offense. However, on remand, the court might consider whether § 5H1.4 provided a basis for departure for an “extraordinary physical impairment.” Defendant tested HIV positive, and might have a related serious physical complication. U.S. v. Schein, 31 F.3d 135 (3rd Cir. 1994).
3rd Circuit rejects downward departure based on post-arrest drug rehabilitation efforts. (680) Defendant, who was convicted of selling stolen treasury checks, admitted that he was a heroin addict and that this addiction motivated him to sell the stolen treasury checks. The district court departed downward because it found that defendant had made a conscientious effort to overcome his heroin addiction, and that sentencing him to jail would disrupt his drug rehabilitation efforts. The 3rd Circuit reversed, finding that this was not an acceptable ground for a downward departure. The policy statement to § 5H1.4 provides that “[d]rug dependence or alcohol abuse is not a reason for imposing a sentence below the guidelines.” Therefore, separation from such addiction is also not a ground for a downward departure. Since only those addicted to drugs would be eligible for such a departure, a downward departure would reward defendants for being addicted. Although incarceration could interrupt a defendant’s drug rehabilitation efforts, this is also not a proper basis for departure, since the guidelines represent a shift away from a rehabilitative system of penology. U.S. v. Pharr, 916 F.2d 129 (3rd Cir. 1990).
4th Circuit holds that court understood its authority to depart based on extraordinary physical impairment. (680) At sentencing, defense counsel sought a downward departure based on an extraordinary physical impairment – defendant had been diagnosed with AIDS, and his probable life expectancy was only four to five years. The government contended that the prison system could handle defendant’s illness. The district court declined to depart, and the Fourth Circuit affirmed. The district court carefully ascertained that there was no authority in this circuit requiring departure, and observed that it was “not inclined to grant Defendant’s motion.” It was clear that the court understood its authority to depart, but did not find the presence of an extraordinary factor warranting departure. Because the court was under no misperception as to its authority, its refusal to depart was not subject to appellate review. U.S. v. Carr, 271 F.3d 172 (4th Cir. 2001).
4th Circuit rules guidelines adequately consider a defendant’s age and health problems. (680) Defendant challenged the district court’s refusal to depart under section 5H1.1 and 5H1.4 based on his age and health problems. The 4th Circuit ruled that it could not review the decision. It was clear that the district judge was aware that she could depart but concluded that defendant’s age and health problems were not extraordinary enough to warrant such action. The court also rejected defendant’s claim that age and physical condition were not adequately taken into consideration by the sentencing commission. The court refused to “rewrite” the guidelines, simply because it might be at odds with some portion of the sentencing act’s legislative history. Because the guidelines were submitted to Congress and subject to its modification, Congress could have substituted its own guidelines, if it had felt a particular factor was not adequately considered. It did not do so. U.S. v. Penn, 17 F.3d 70 (4th Cir. 1994).
4th Circuit affirms that defendant’s diminished capacity justified downward departure. (680) The 4th Circuit affirmed the district court’s decision to depart downward under guideline section 5K2.13 based upon defendant’s diminished capacity. The record contained the testimony and written report of a “highly cre-dentialed psychiatrist” that indicated that defendant was suffering from a significantly diminished mental capacity. The government’s only evidence on the issue was a page from a textbook. There also was suffi-cient evidence that defendant’s diminished capacity was a contributing factor in the commission of the offense. The psychiatrist testified without contradiction that defendant “had no conscious control over the things that were going on inside of him to a certain limit,” and that the disease impaired his ability to cope with stress, which “led him to act out in this self destructive fashion.” U.S. v. Glick, 946 F.2d 335 (4th Cir. 1991).
4th Circuit rules that finding of “impairment” under 5H1.4 does not preclude imprisonment of defendant. (680) The District Court departed downward based in part on defendant’s medical condition. On appeal, defendant argued that in reducing his sentence because of his medical condition, the court necessarily found an “extraordinary physical impairment” as defined in guidelines § 5H1.4. Defendant contended that such a finding required a sentence other than imprisonment. The 4th Circuit disagreed. The District Court never used the term “extraordinary physical impairment.” In any event, 5H1.4’s “observation that extraordinary impairment might justify an alternative to imprisonment does not preclude the possibility that impairment might also warrant a shorter sentence. The greater departure, no imprisonment, includes the lesser departure, shorter imprisonment.” U.S. v. Ghannam, 899 F.2d 327 (4th Cir. 1990).
5th Circuit holds that HIV-positive status did not constitute “extraordinary physical impairment.” (680) The district court departed downward from the guidelines on the grounds that (1) defendant’s HIV-positive status constituted an extraordinary medical condition under § 5H1.4, and (2) the prosecutor’s disclosure in open court of defendant’s HIV-positive status was malicious and endangered defendant’s safety. The Fifth Circuit reversed. The court failed to offer any explanation for why defendant’s medical condition should be treated as an exceptional one. Other circuits have found that a defendant’s HIV-positive status alone is insufficient to justify a departure under § 5H1.4. The court’s finding that the prosecutor deliberately and maliciously made comments that endangered the defendant’s safety was wholly unsupported by the record. The court never explained how it knew that the prosecutor’s comments would lead to such danger, and did not order any special security precautions, which suggested that it was not overly concerned about his safety. The finding that the prosecutor acted deliberately and maliciously was also clearly erroneous. No rule prohibits a prosecutor from disclosing or discussing a defendant’s HIV-positive status at sentencing, and the court never ordered confidentiality at sentencing or took any steps to preserve confidentiality at sentencing. U.S. v. Castillo, 430 F.3d 230 (5th Cir. 2005).
5th Circuit reverses departure for physical conditions, military service, employment and disagreement with guidelines. (680) Defendant, a prison guard, attempted to persuade another guard to lie about the beating of a prisoner. The Fifth Circuit reversed a downward departure that had been based on defendant’s physical condition (sarcoidosis, a chronic inflammation of multiple organs), his decorated military service in Vietnam, his distinguished service at the prison, and the court’s belief that the punishment did not fit the crime. Defendant’s medical condition did not need any particular type of treatment and required only follow up observation. This did not constitute an extraordinary physical impairment under § 5H1.4. Section 5H1.11 provides that military service is not ordinarily relevant in determining whether to depart. Defendant’s two purple hearts and distinguished service did not take his case out of the heartland of cases. An employment record is also not an appropriate ground for departure. Finally, a court’s disagreement with the punishment provided for in the guidelines is not enough to justify a downward departure. U.S. v. Winters, 105 F.3d 200 (5th Cir. 1997).
5th Circuit reverses upward departure based on defendant’s alcohol dependency. (680) The 5th Circuit ruled that the district court failed to elucidate any extraordinary aspects of the defendant’s alcohol dependency that would justify a departure from the guidelines. The court’s statement “it’s just amazing to me that no injury has been done” could not justify a departure from the guidelines. The sentencing guidelines consider the occurrence of injuries in the course of bank robberies and would have provided for an increased offense level if such injuries occurred. U.S. v. Miller, 903 F.2d 341 (5th Cir. 1990).
5th Circuit rules heroin addiction is not ordinarily grounds for departure. (680) The 5th Circuit held that the fact that a defendant is addicted to heroin is not ordinarily grounds for departure, under § 5H1.4. However, it left open the possibility that it might be if it were so “extraordinary” as to be beyond that considered by the Commission. U.S. v. Lopez, 875 F.2d 1124 (5th Cir. 1989).
5th Circuit rules drug addiction is not a mitigating circumstance which warrants departure. (680) An LSD dealer argued that the trial court should have recognized his lengthy history of drug addiction as grounds for departure. The 5th Circuit disagreed. Sections 5H1.4 and 5K2.13 (diminished capacity) of the guidelines adequately consider drug use as a sentencing factor as required by 28 U.S.C. § 994(d)(5). In addition, the Commission recognized that “substance abuse is highly correlated to a propensity to commit crime.” Thus, sentencing deviations based upon this factor should be granted with “extreme reluctance.” Because the defendant failed to raise this issue below and establish a record on which the 5th Circuit could consider if departure was warranted, relief was unobtainable. U.S. v. Taylor, 868 F.2d 125 (5th Cir. 1989).
6th Circuit says court adequately considered defendant’s age and alleged ill health. (680) Defendant argued in his sentencing memo that he should receive a sentence below the bottom of the guideline range because of his age (then 62) and supposed ill-health. During defendant’s sentencing hearing, the district court did not address these arguments specifically, but said there was “nothing in the record to warrant going outside the recommended guideline range, nothing in the 3553(a) factors.” The court then imposed a sentence at the very bottom of the guideline range. Defendant argued that the court committed procedural error when it failed to address his arguments specifically. The Sixth Circuit disagreed. Courts are not required to give the reasons for rejecting any and all arguments by the parties for alternative sentences. Defendant’s arguments were directed to the § 3553(a) factors. The district court said that it saw nothing with respect to those factors that support a below-guideline sentence. On this record, that response, “though brief, was legally sufficient.” U.S. v. Locklear, 631 F.3d 364 (6th Cir. 2011).
6th Circuit defers to court’s consideration of defendant’s family circumstances. (680) Defendant was convicted of possessing child pornography. At sentencing, he moved for a downward departure or variance based on the loss of caretaking for his 15-year-old daughter. After hearing defense counsel’s argument, the court responded that it “need not decide that a downward departure is granted or denied on this case. I think the whole matter goes into the sentencing matrix.” The Sixth Circuit affirmed defendant’s above-guideline sentence. The district court considered defendant’s family responsibilities at sentencing. Given the deference to the district court’s consideration of the §3553(a) factors and the pertinent policy statement in §5H1.6, the judge did not abuse his discretion. U.S. v. Blackie, 548 F.3d 395 (6th Cir. 2008).
6th Circuit rules that deafness alone cannot serve as basis for § 5H1.4 departure. (680) Defendant argued that his deafness coupled with his primary means of manual communication was an extraordinary physical impairment that qualified him for a § 5H1.4 departure. The district court found § 5H1.4 inapplicable after erroneously finding defendant was subject to a mandatory minimum sentence. The Sixth Circuit refused to remand the departure issue to the district court, holding that deafness, without more, cannot serve as the basis for a § 5H1.4 departure. A physical impairment must be truly extraordinary to justify a § 5H1.4 departure. The district court recommended that the BOP take defendant’s disability into consideration and place him at a facility equipped to handle his needs. Defendant did not allege that prison services were inadequate to accommodate his disability, or that the prison had failed to protect him against attackers. U.S. v. Russell, 156 F.3d 687 (6th Cir. 1998).
6th Circuit directs court to make more specific findings about defendant’s physical impairment. (680) The district court departed downward because it found that the 65-year-old defendant had a number of medical problems that suggested it would be less expensive and in the public interest to confine him in a community correction center rather than prison. The court relied on letters from defendant’s physician and psychiatrist suggesting that incarceration would have detrimental effects on defendant’s health. The Sixth Circuit remanded for more specific fact-finding as to defendant’s medical condition. It was possible that an aged defendant with a multitude of health problems might qualify for a departure under § 5H1.4. However, the court should make more specific findings as to whether defendant has an extraordinary physical impairment or combination of impairments. Defendant might need to produce more evidence to determine the extent of his infirmities and the prison system’s inability to accommodate them. U.S. v. Johnson, 71 F.3d 539 (6th Cir. 1995).
6th Circuit rejects HIV positive status as grounds for downward departure. (680) Defendant requested a downward departure based on the fact that he was HIV positive. Although he had not yet developed AIDS, he argued that he only had 5.8 years left to live, and that his 110-month sentence represented almost 200% of his life expectancy. The Sixth Circuit held that a defendant’s HIV positive status, by itself, was not a proper ground for departure. Only an extraordinary physical impairment may justify a sentence other than imprisonment under § 5H1.4. Neither AIDS nor any other life threatening illness is such a physical impairment. The Bureau of Prisons has the medical personnel and facilities needed to care for defendant. Defendant would only be entitled to a departure if his HIV had progressed into advanced AIDS, and then only if his health could be termed an “extraordinary physical impairment.” U.S. v. Thomas, 49 F.3d 253 (6th Cir. 1995).
7th Circuit rules court adequately considered defendant’s bipolar disease in imposing guideline sentence. (680) Defendant argued that the judge treated the Sentencing Guidelines as mandatory and thus failed to adequately consider her arguments for a below-guidelines sentence, especially the role her now-controlled bipolar disorder played in her fraudulent conduct. The Seventh Circuit found no error. Although the judge indicated her intent to set defendant’s sentence at the low end of her guideline range, the judge also recognized her discretion to impose a sentence below the guidelines, if warranted. The judge considered defendant’s mental illness. She permitted a psychiatric evaluation and delayed sentencing to allow defendant to present the report. Although the court acknowledged defendant’s bipolar disorder was a factor contributing to the offenses and favored leniency, she went on to state the seriousness of defendant’s conduct and her inability to remain compliant with treatment favored a harsh sentence. U.S. v. Favara, 615 F.3d 824 (7th Cir. 2010).
7th Circuit affirms below-guidelines incarceration rather than home confinement. (680) Defendant pled guilty to theft of government property, in violation of 18 U.S.C. § 641. Her advisory sentencing range was 24-30 months, and the district court sentenced her to imprisonment of one year and a day. She argued that the sentence was unreasonable because the judge did not adequately consider her medical problems or the impact of incarceration on her family, which in her view warranted a sentence of home confinement. The Seventh Circuit upheld the sentence as reasonable. The judge’s failure to specifically mention the impact of incarceration on defendant’s family did not require resentencing The judge took evidence and heard arguments on this point over the course of several sentencing hearings, and the totality of the record demonstrated that the judge implicitly considered and rejected it. The judge did not abuse his discretion by sentencing defendant to a below-guidelines period of incarceration instead of home detention. The judge explained that despite defendant’s medical issues, a period of incarceration was “fundamentally required” to promote respect for the law, provide for deterrence, and to hold defendant accountable for her breach of trust. U.S. v. Poetz, 582 F.3d 835 (7th Cir. 2009).
7th Circuit refuses non-guideline sentence for alleged gambling addiction. (680) Defendant embezzled hundreds of thousands of dollars from his employer and did not report the income on his tax return. He requested a below-guideline range sentence based on the purposed link between a claimed gambling addiction and his criminal conduct. He also raised several other grounds for a below-guideline range sentence. The court refused to grant a departure or a variance, and imposed sentences at the low end of the advisory guideline range. The Seventh Circuit held that the sentences were reasonable, rejecting defendant’s claim that the district court failed to give meaningful consideration to his arguments in favor of a below-guideline sentence. The district court found that there was insufficient evidence of a gambling addiction, noting that defendant claimed to have suffered from the addiction for many years without committing any crimes. The court also questioned his claims that his losses from playing the stock market even constituted gambling. The court also rejected defendant’s tenuous claims that he suffered from depression and bipolar disorder. The other “factors” were nothing more than stock arguments that sentencing courts see routinely, such as family ties, overrepresentation of criminal history, and acceptance of responsibility. The court was free to reject these without discussion. U.S. v. Tahzib, 513 F.3d 692 (7th Cir. 2008).
7th Circuit holds that defendant did not establish extraordinary physical impairment. (680) The court concluded, based upon a psychiatrist’s testimony (not a cardiologist), that 69-year old defendant had four physical infirmities: chronic cardiovascular disease, chronic peripheral vascular disease with hypertension, obstructive pulmonary disease, and lower back pain with lumbar and lumbosacral origin. The court gave defendant a one-level departure for each of these four conditions, and a fifth-level for the four in combination. The judge acknowledged that none of the four conditions alone would justify a departure but believed that the combination did so. The Seventh Circuit reversed because defendant did not establish that his condition was either “debilitating” or “extraordinary,” and thus the departure conflicted with §§ 5H1.1 and 5H1.4. Section 5H1.1 says that age may not be the basis of a departure unless the defendant is “elderly and infirm,” referring for further guidance to § 5H1.4. This provides that only “an extraordinary physical impairment” may be a reason to depart. However, many septuagenarians have conditions similar to defendant’s. If a medical condition is extraordinary in the sense that a prison medical facility cannot cope with it, then a departure may be appropriate. Here the district court found that the Bureau of Prisons could treat defendant’s conditions. U.S. v. Krilich, 257 F.3d 689 (7th Cir. 2001).
7th Circuit holds that court properly understood authority to make physical impairment departure. (680) The district court rejected defendant’s request for a downward departure under § 5K2.13 (diminished capacity) and under § 5H1.4 (extraordinary physical impairment). Defendant contended that the district court misunderstood the law, since the court stated that defendant was not suffering from an extraordinary physical condition “at the time of the offense.” Section 5H1.4 does not require that the defendant have suffered a physical impairment at the time of the offense; however, § 5K2.13 does require that the diminished capacity occur at the time of the offense. The Seventh Circuit ruled that the district court correctly understood its authority to depart, and thus, the decision was not reviewable. Defendant provided the court with a memo that separately discussed his diminished capacity claim and his physical impairment claim. At sentencing, the court allowed defense counsel to address the departure motions. At no time did defense counsel present evidence regarding why defendant’s physical condition would preclude him from being incarcerated and cared for properly by the Bureau of Prisons. Therefore, it would have been improper for the district court to grant a departure on this basis. Although the court might have conflated to some extent defendant’s two departure motions, this confusion did not necessarily indicate that the court did not understand its authority to depart. In other portions of his statement, the judge clearly acknowledged the distinct nature of the two departure requests. U.S. v. Albarran, 233 F.3d 972 (7th Cir. 2000).
7th Circuit upholds finding that defendant’s medical condition warranted downward departure. (680) After reviewing medical records, watching a videotaped deposition of defendant’s cardiologist, observing defendant at trial and during sentencing, and listening to in-court testimony of both defendant and his mental health therapist, the district court concluded that imprisonment posed a substantial risk to defendant’s life and therefore departed downward under § 5H1.4. The government contended that defendant’s physical condition was not an “extraordinary physical impairment” under § 5H1.4 and that the Bureau of Prisons (BOP) could provide adequate medical care to defendant. The Seventh Circuit held that the district court did not abuse its discretion in concluding that defendant’s medical condition warranted a downward departure. Unlike the cases cited by the government, the district court made particularized findings that defendant was entitled to a departure under § 5H1.4. Moreover, the district court found that the BOP’s letter was merely a form letter trumpeting the BOP’s ability to handle medical conditions of all kinds. U.S. v. Gee, 226 F.3d 885 (7th Cir. 2000).
7th Circuit rejects family ties departure where even after reduction, release would be too late to help child. (680) A clinical psychologist submitted a report that defendant’s seven-year old son became “anxious and depressed as a result of learning that his mother may possibly not continue to live with him” and that this anxiety had led to a conflict with a school classmate and a decrease in academic performance. Citing defendant’s extraordinary family circumstances, the district court departed downward from a range of 235-293 months to a sentence of 170 months. The Seventh Circuit reversed, finding nothing extraordinary about defendant’s family circumstances. Normal children react adversely to learning that their parents will be absent for years. However, “the guidelines do not contemplate a discount for the parents of children.” U.S. v. Stefonek, 179 F.3d 1030 (7th Cir. 1999). Moreover, reducing defendant’s sentence from 235 to 170 months was unlikely to help the child. There was nothing to suggest that the boy’s mental health would be improved by knowledge that his mother would be released when he was 19 rather than five years later. A downward departure for extraordinary family circumstances cannot be justified when, even after reduction, the sentence is so long that release will come too late to promote the child’s welfare. U.S. v. Wright, 218 F.3d 812 (7th Cir. 2000).
7th Circuit lacks jurisdiction to review refusal to make § 5H1.4 departure for defendant in wheelchair. (680) Defendant contended that the district court abused its discretion in denying her request for a downward departure based on her medical condition. Defendant had contracted polio at age 2 and had been confined to a wheelchair for more than 30 years. She also had several surgeries over the years to address other conditions attributable to the polio. While awaiting sentencing, defendant suffered a heart attack and underwent bypass surgery. She took several medications daily for high blood pressure and other ailments. The Seventh Circuit held that it lacked jurisdiction to review the refusal to depart since the district court plainly recognized that it had the authority to depart downward. The district court found that defendant’s condition was not sufficiently extraordinary to warrant a departure. U.S. v. Tyler, 125 F.3d 1119 (7th Cir. 1997).
7th Circuit says HIV-positive status alone does not justify § 5H1.4 departure. (680) Defendant, who was HIV positive but did not have full-flown AIDS, challenged the district court’s refusal to depart under § 5H1.4. The Seventh Circuit found no error, since an AIDS-afflicted individual is only entitled to a downward departure under § 5H1.4 when the disease has progressed to such an advanced stage that it could be characterized as an “extraordinary physical impairment.” U.S. v. Woody, 55 F.3d 1257 (7th Cir. 1995).
7th Circuit says findings not sufficient for departure based on obesity and asthma. (680) Defendant requested a downward departure under § 5H1.4 because of asthma and obesity. He testified that he weighed between 420-450 pounds, suffered from asthma, and had difficulty breathing during any slight physical activity, such as rising from a chair. Defendant had been receiving SSI payments for his obesity since 1991. The district judge, who also had asthma, departed downward, stating his belief that prison officials are not concerned about the health needs of asthmatics. The Seventh Circuit ruled that these findings were insufficient to support a § 5H1.4 departure. There was no evidence to support the judge’s concern that prison officials did not adequately treat asthmatics. Much of the judge’s rationale was based on his personal experience, rather than a medical assessment of the severity of defendant’s condition. U.S. v. Sherman, 53 F.3d 782 (7th Cir. 1995).
7th Circuit rejects mental health and likelihood of recidivism as grounds for upward criminal history departure. (680) The district court departed upward at least in part because it found that defendant’s mental instability made it more likely that he would commit additional offenses. The 7th Circuit vacated the sentence based upon the extent of the departure, and then noted that “[m]ental health is not a solid basis on which to depart upward.” Guideline § 5H1.3 bans upward departures on this basis. A defendant’s unusual likelihood to commit more crimes might be a proper basis for departure, but this overlaps the recidivism penalty built into the guidelines. Here, defendant already received three criminal history points under guideline § 4A1.1(e) for committing the current offense while under supervision. A belief that defen-dant was likely to continue committing offenses “cannot support a substantial increase above this, or the limit on the recidivism penalty built into the guidelines would be defeated.” U.S. v. Fonner, 920 F.2d 1330 (7th Cir. 1990).
7th Circuit reverses downward departure based on age, physical condition, restitution and “single act of aberrant behavior.” (680) Defendant was convicted of bank fraud and was sentenced below the applicable guideline range. After the government filed its notice of appeal, the court filed a memorandum stating that the downward departure was based on the defendant’s age and physical condition, the fact that the offense was a “single act of aberrant behavior,” and the fact that the dollar loss overstated the se-riousness of the offense because a plan of restitution had been undertaken prior to indictment. The 7th Circuit reversed, finding these reasons were either improper or insufficiently articulated to justify departure. U.S. v. Carey, 895 F.2d 318 (7th Cir. 1990).
8th Circuit upholds refusal to depart down for mental and emotional issues. (680) Defendant argued that the district court erred in refusing to depart down pursuant to § 5H1.3 because of defendant’s mental health and emotional conditions. He argued that it was unclear whether the district court was aware that § 5H1.3 was amended shortly before the hearing. However, the Eighth Circuit presumed the district court knew the law and considered the provision in effect at the time of sentencing, absent any indication to the contrary. The district court heard defendant’s arguments, and expressly recognized defendant’s mental and emotional health issues, before implicitly denying the motion by finding that the guideline range was appropriate for an offender with defendant’s background and offense conduct. A district court’s refusal to grant a downward departure under the Sentencing Guidelines is unreviewable unless the court had an unconstitutional motive in denying the request or failed to recognize that it had the authority to depart downward. U.S. v. Dixon, 650 F.3d 1080 (8th Cir. 2011).
8th Circuit will not review refusal to vary or depart based on extraordinary medical condition. (680) Defendant was convicted of receiving child pornography, and received a 97-month sentence, which was at the low end of his advisory guideline range. He suffered from a rare congenital condition that led to the complete loss of vision in his right eye, was legally blind in the left eye, and would be blind in both eyes within three years. Defendant requested and was denied a departure under §§5H1.4 and 5K2.0 for an extraordinary physical impairment and extreme susceptibility to abuse in prison. The court also rejected defendant’s request for a variance based on the discretionary factors of 18 U.S.C. §3553. The Eighth Circuit upheld the sentence as substantively reasonable. The district court thoroughly considered defendant’s arguments, and the impact of an advisory guideline sentence on defendant’s medical conditions, before determining that a sentence at the bottom of the advisory range was appropriate. The court’s refusal to depart based on defendant’s claim of an extraordinary physical impairment was not reviewable on appeal. U.S. v. Toothman, 543 F.3d 967 (8th Cir. 2008).
8th Circuit allows probation for crack defendant given age and poor health. (680) Defendant pled guilty to conspiracy to distribute crack, under the general conspiracy statute, 18 U.S.C. § 371, rather than 21 U.S.C. § 841(b) (1)(A). His guideline range was 97-121 months, but the statutory maximum under § 371 was five years. Based on his poor health (serious heart condition and related problems), age (56 at the time of sentencing) and post-arrest rehabilitation, the district court sentenced him to three years’ probation. Because a residence facility was unable to handle defendant’s medical needs, the court placed him on home detention. The Eighth Circuit held that the sentence was not unreasonable. The Guidelines and decisions prior to Gall allow variances on the basis of poor health. Guideline § 5H1.4 permits a court to give a non-prison sentence if the defendant is “seriously infirm” and it would be less costly than imprisonment. Section 5H1.1 also permits a court to consider alternative forms of incarceration for an elderly, infirm defendant that would be “equally efficient” as incarceration. U.S. v. McFarlin, 535 F.3d 808 (8th Cir. 2008).
8th Circuit holds court clearly erred in finding defendant had extraordinary physical impairment. (680) Defendant was in poor health, suffering from a number of heart and lung problems, diabetes, obesity and high blood pressure. Section 5H1.4 permits a downward departure based on a defendant’s extraordinary physical impairment. Such departures are discouraged, and should be limited to exceptional circumstances. The Eighth Circuit held that the district court clearly erred in finding that defendant suffered from an extra-ordinary physical impairment. A court departing under § 5H1.4 is supposed to ask (1) would the defendant’s physical condition make imprisonment more than normal hardship, (2) would imprisonment subject defendant to more than normal inconvenience or danger, and (3) does the physical condition have any substantial present effect on the defendant’s ability to function. The first and third questions were not in dispute. However, defendant’s only evidence on the second question regarding how imprisonment would affect his health was one doctor’s testimony that life in prison is more stressful than life outside of prison and defendant should avoid stress. In contrast, the director of a BOP medical center testified that while life in prison might be stressful, the BOP has the capability to help inmates cope with stress, and could provide defendant with any needed medication or necessary medical care. U.S. v. Coughlin, 500 F.3d 813 (8th Cir. 2007).
8th Circuit holds guideline sentence for robbery reasonable. (680) Defendant was convicted of bank robbery, and the district court sentenced him to 151 months, which fell within his advisory guideline range. Defendant argued that the court was required to impose a more favorable sentence due to mitigating factors, such as the harmlessness of the purported bomb he used in the robberies, and his history of physical and mental illness. The Eighth Circuit held that the guideline sentence was reasonable. The Sen-tencing Commission recommends no distinction among armed robbers based on whether an apparently dangerous weapon was actually capable of inflicting death or serious injury during the robbery. See U.S.S.G. § 2B3.1, Note 2. The district court could reasonably conclude, consistent with the guidelines, that whether or not defendant’s bomb was real, his use of the device likely caused emotional and psychological harm to those present. The Sentencing Commission also recommends that physical and mental health ordinarily are not reasons to impose different sentences in the cases of similarly-situated bank robbers. U.S.S.G. §§ 5H1.3, 5H1.4. Here, while defendant’s record did include evidence of physical ailments and previous mental health concerns, the record did not include a clear showing of extraordinary impairments that would make his incarceration particularly dangerous or harsh. U.S. v. McCracken, 487 F.3d 1125 (8th Cir. 2007).
8th Circuit rejects downward variance based upon defendant’s age and history of drug abuse. (680) Defendant pled guilty to methamphetamine charges, which, because of his three previous drug convictions, subjected him to an enhanced sentence under 21 U.S.C. § 851. Although his guideline range was 262-327 months’, the district court sentenced him to the statutory minimum of 120 months’ (a variance of about 54 percent from the bottom of the advisory guideline range) based primarily on his age and his history of drug abuse. The Eighth Circuit reversed, since defendant’s characteristics in these area were not exceptional. Drug addiction or abuse if not a proper reason to impose a downward variance, absent exceptional circum-stances. See 18 U.S.C. § 3553(a)(5)(A); U.S.S.G. § 5H1.4. Defendant was more than a simple user of drugs. Two of his prior convictions were for distribution-related offenses, and the current offense was also for possession with intent to distribute. Defendant’s age was also not exceptional. He was 44 years old, healthy, and had no history of mental health problems. Defendant qualified as a career offender, and his drug addiction and age did not present exceptional circumstances that would warrant such an exceptional variance. U.S. v. Lee, 454 F.3d 836 (8th Cir. 2006).
8th Circuit agrees defendant did not prove he suffered from extraordinary physical impairment. (680) Defendant moved for a downward departure on the ground of an extraordinary physical impairment. The district court declined to depart, and the Eighth Circuit found no error. The district court was clearly aware of its departure authority under § 5H1.4. However, it found that defendant did not suffer from an extraordinary physical impairment because he failed to prove that the Bureau of Prisons would be unable to care for his medical needs. This finding was not clearly erroneous. Although defendant’s physical condition created special needs, he did not show that the needs were extraordinary in the sense that the Bureau of Prisons would be unable to accommodate his condition and provide proper medical care. The court did, however, commit Booker error by sentencing defendant under the assumption that the guidelines were mandatory. Defendant’s pre-Booker plea agreement expressly waived any challenge to the constitutionality of the guidelines. There was no plain error. U.S. v. Robinson, 409 F.3d 979 (8th Cir. 2005).
8th Circuit rejects departure for physical and emotional abuse defendant suffered as child. (680) Defendant argued that the district court erred by failing to recognize its authority to grant him a downward departure based on the physical and emotional abuse he suffered as a child. The Eighth Circuit disagreed. As unfortunate as his childhood was, defendant did not show how his particular history of abuse made him an extraordinary robber exceptionally deserving of lenient treatment. A departure would have been an abuse of discretion. U.S. v. Rice, 332 F.3d 538 (8th Cir. 2003).
8th Circuit holds that departure based on defendant’s heart condition was abuse of discretion. (680) The district court found that defendant suffered from an extraordinary physical impairment (a heart condition), and departed downward by five years to impose a 175-month sentence. The Eighth Circuit held that the departure was an abuse of discretion. As the district court found, imprisonment would not subject defendant to more than normal inconvenience or danger. There was no support for the court’s finding that defendant’s physical impairment would have a substantial effect on his ability to function within the confines of a prison environment. Defendant’s heart problems obviously restricted the scope of his activities, but that would be no more the case in prison than in the outside world, and it was in the light of the prison environment that those restrictions must be weighed. The record simply did not support a finding that defendant’s physical impairment was so severe that it fell within the definition of § 5H1.4. Judge Bright dissented. U.S. v. Johnson, 318 F.3d 821 (8th Cir. 2003).
8th Circuit cannot review refusal to depart for physical impairment and family situation. (680) Defendant sought a downward departure based on an extraordinary physical impairment and an extraordinary family situation. See USSG §§ 5H1.4 & 5H1.6. The district court heard testimony by two doctors and defendant concerning his back and leg pain. Defendant and his wife also testified as to their financial condition and the difficulties of raising school-age children in a rural location. The court then concluded that defendant’s health and family situation were not sufficiently extraordinary and declined to depart downward. The Eighth Circuit ruled that the court’s decision not to depart was unreviewable, since the court was aware of its authority to depart. The court’s refusal to depart was an exercise of its sentencing discretion that was unreviewable on appeal. U.S. v. Orozco-Rodriguez, 220 F.3d 940 (8th Cir. 2000).
8th Circuit rules that § 5K2.13 provides sole basis for downward departure based on defendant’s mental condition. (680) Defendant argued in a § 2255 motion that his trial counsel was ineffective for failing to argue for a downward departure under § 5H1.3 based upon defendant’s mental condition. At sentencing, defense counsel requested a downward departure under § 5K2.13 because of defendant’s significantly reduced mental capacity. The district court denied the request because defendant’s bank robberies were violent offenses. The Eighth Circuit found no ineffective assistance because § 5K2.13 provides the sole basis for a downward departure based on a defendant’s mental condition. Section 5H1.3 is not an independent source of departure authority. The Sentencing Commission adequately considered diminished mental capacity when it formulated § 5K2.13, thus foreclosing consideration of diminished capacity under § 5K2.0. Premachandra v. U.S., 101 F.3d 68 (8th Cir. 1996).
8th Circuit says AIDS was not an extraordinary physical impairment. (680) Defendant filed a motion for a departure under § 5H1.4 based on the fact that he had AIDS-Related Complex (“ARC”). The district court denied the motion, finding defendant’s condition was not an extraordinary physical impairment under § 5H1.4. The Eighth Circuit agreed, holding that although AIDS can be a basis for a departure where it has progressed to an advanced stage, defendant’s condition did not meet this standard. Defendant was not taking medication for any AIDS-related ailments. There was no evidence that imprisonment would worsen his condition or that he required special care. Judge Wilson dissented. U.S. v. Rabins, 63 F.3d 721 (8th Cir. 1995).
8th Circuit rejects drug dependence as grounds for downward departure. (680) Defendant argued that the district court should have departed downward because his acquisition of cocaine was only to “feed his own drug habit” and he was not “in the business of crime.” The 8th Circuit rejected this, since under policy statement 5H1.4, drug dependence is not a reason for departing downward. U.S. v. Kirkeby, 11 F.3d 777 (8th Cir. 1993).
8th Circuit refuses to review refusal to depart based upon drug dependency. (680) The 8th Circuit refused to review defendant’s claim that the district court erred in denying his motion to depart based on his drug dependency and prospects for rehabilitation. Guideline section 5H1.4 specifically mentions that alcohol and drug dependence are not reasons for downward departures. The appellate court was not empowered to review the district court’s refusal to depart. U.S. v. Laird, 948 F.2d 444 (8th Cir. 1991).
8th Circuit holds alcoholism is not a reason for downward departure. (680) Defendant failed to return from furlough and received a 27-month sentence. On appeal, he contended that his escape was due to his alcoholism and that his sentence was greater than necessary to fulfill the prescribed purposes of the criminal law. The 8th Circuit disagreed. U.S.S.G. § 5H1.4 expressly provides that alcohol abuse is not a reason for a downward departure. Further, defendant presented no evidence that his escape was due to alcoholism. Therefore, his sentence was proper. U.S. v. Creed, 897 F.2d 963 (8th Cir. 1990).
9th Circuit says court may consider drug addiction in applying § 3553(a) factors. (680) At defendant’s sentencing for conspiracy to traffic in methamphetamine, he argued that the court should consider his drug addiction under 18 U.S.C. § 3553(a) as part of his “history and characteristics.” The district court held that it did not have discretion to consider defendant’s alleged diminished mental capacity due to drug addiction because the guidelines preclude using voluntary drug addiction as a basis for a downward departure. The Ninth Circuit held that the factors that constrain the court’s discretion to depart under the guidelines do not necessarily constrain the court when considering the § 3553 (a) factors. The court held that a district court is not prohibited in all circumstances from considering a defendant’s drug addiction in choosing a reasonable sentence. U.S. v. Garcia, 497 F.3d 964 (9th Cir. 2007).
9th Circuit says restriction on departure for diminished capacity precludes departing under § 5K2.0. (680) The district court found that defendant suffered from diminished mental capacity but concluded that the guidelines prohibited a downward departure under § 5K2.13 because defendant’s diminished mental capacity was caused by the voluntary use of drugs and his unarmed bank robbery involved a serious threat of violence. The district court also found that because it was precluded from departing under § 5K2.13, it could not depart for diminished capacity under § 5K2.0, the general departure section. On appeal, the Ninth Circuit affirmed, agreeing with the Fifth Circuit’s decision in U.S. v. Thames, 214 F.3d 608 (5th Cir. 2000), which held that because the guidelines already took into account a defendant’s mental capacity in § 5K2.13, that § 5K2.0 was inapplicable. Section 5K2.0 allows departures only for mitigating circumstances not adequately taken into consideration by the guidelines. U.S. v. Smith, 330 F.3d 1209 (9th Cir. 2003).
9th Circuit allows departure for susceptibility to abuse in prison. (680) A defendant’s unusual susceptibility to abuse by other inmates while in prison may warrant a downward departure. Koon v. U.S., 518 U.S. 81, 111-12 (1996); U.S. v. Lara, 905 F.2d 599, 603 (2d Cir. 1990). Here, the district court found that the defendant – who was convicted of child pornography – was susceptible to abuse in prison because of a “combination” of factors: “his stature, his demeanor, his naiveté, [and] the nature of the offense.” On appeal, a divided Ninth Circuit affirmed, even though it was unclear from the record how defendant’s 5’11” height and 190 pounds made his “stature” a basis to depart. As for his demeanor, described as “positive and caring,” the defense expert said that “these are not good characteristics to have in prison.” Although the district court did not describe what it meant by “naiveté,” the majority thought this characteristic might make defendant “less able to protect himself from ill-meaning inmates.” The majority also held that the district court could consider the nature of the offense in deciding whether defendant was susceptible to abuse in prison. Judge Graber dissented. U.S. v. Parish, 308 F.3d 1025 (9th Cir. 2002).
9th Circuit says refusal to depart for defendant’s mental condition was not reviewable. (680) The district court declined to exercise its discretion to depart downward based on defendants mental condition, including his severe headaches. Relying on U.S. v. Webster, 108 F.3d 1156, 1158 (9th Cir. 1997), the Ninth Circuit held that “[s]uch a discretionary refusal to depart is not reviewable on appeal. U.S. v. Mikaelian, 168 F.3d 380 (9th Cir. 1999).
9th Circuit says court may not base consecutive sentence on need for mental treatment. (680) In U.S. v. Doering, 909 F.2d 392 (9th Cir. 1990), the Ninth Circuit held that a court may not base its sentence on the need for psychiatric rehabilitation or treatment. In the present case, it appeared that the reason for the consecutive sentences was the district court’s belief that defendant needed mental health treatment. Accordingly, the court felt compelled by Doering to hold that the court abused its discretion by relying on defendant’s perceived need for mental health treatment. The sentence was reversed but the court noted that on remand the court was free to impose consecutive sentences in the exercise of its discretion in a manner unrelated to defendant’s need for mental health treatment. U.S. v. Kikuyama, 109 F.3d 536 (9th Cir. 1997).
9th Circuit says unarmed robbery is a violent offense for diminished capacity purposes. (680) Defendant argued that the district court should have departed downward for diminished capacity under sections 5K2.13 or 5H1.1-6. These guidelines permit a court to depart if the defendant “committed a nonviolent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants.” The Ninth Circuit found no error, ruling that the unarmed bank robberies committed by defendant “did not qualify as nonviolent offenses.” U.S. v. Cook, 53 F.3d 1029 (9th Cir. 1995).
9th Circuit says mental illness may warrant a downward departure. (680) In remanding this case for a new trial on other grounds, the 9th Circuit noted in a footnote that the district court incorrectly concluded it was without authority to consider whether defendant’s mental illness was of such a nature that it was an “extraordinary circumstance” warranting a downward departure. See U.S. v. Roe, 976 F.2d 1216, 1218 (9th Cir. 1992). If the district court were to conclude that defendant’s mental illness qualified as an extraordinary case, it would be authorized to depart downward under U.S.S.G. section 5H1.3 and 5K2.0. U.S. v. Christensen, 18 F.3d 822 (9th Cir. 1994).
9th Circuit finds that defendant’s blindness was not an extraordinary physical impairment. (680) Guideline section 5H1.4 states that extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range. Here, the district court found that defendant’s blindness was not an extraordinary physical impairment because the Bureau of Prisons could accommodate his blindness at the prison at Springfield. The 9th Circuit agreed, ruling that since defendant did not have an extraordinary physical impairment under section 5H1.4, the district court did not err in concluding that it had no discretion to depart downward from the guidelines. U.S. v. Martinez-Guerrero, 987 F.2d 618 (9th Cir. 1993).
9th Circuit says past drug use should not affect time in custody. (680) The district court departed upward pursuant to section 5K2.0 for defendant’s prior drug use. The 9th Circuit reversed, holding that the introductory comments to the criminal history chapter, viewed in conjunction with section 5H1.4, showed that the Commission opted for a sentencing scheme that encourages defendants to admit and seek treatment for drug dependency, rather than treating defendants who have a history of drug abuse more severely. While drug addiction will influence the conditions of supervised release, “past drug abuse should not affect time in custody unless the defendant’s condition is so extraordinary that departure, rather than the measures discussed in section 5H1.4, is required.” Since there were no facts showing that defendant’s past drug use was exceptional, his sentence was vacated. U.S. v. Luscier, 983 F.2d 1507 (9th Cir. 1993).
9th Circuit upholds downward departure for abusive childhood. (680) Defendant pled guilty to bank robbery and received a sentence of 145 months. She appealed, arguing that the district court erred in refusing to depart downward based on her history of childhood abuse. As a youth, the defendant lived with her drug-addicted mother and her mother’s narcotics dealer boyfriend. The defendant was often beaten, routinely raped and sodomized and the mother’s boyfriend urinated in her mouth. Several medical experts agreed that the defendant’s history of abuse was exceptional. The district court erred in holding that the tragic circumstances of the abusive upbringing were not extraordinary and the case was remanded to determine whether a departure was warranted. In addition, the court suggested the district court may also wish to consider a “youthful lack of guidance” departure. U.S. v. Roe, 976 F.2d 1216 (9th Cir. 1992).
9th Circuit states that drug dependence is not ordinarily relevant in determining sentence. (680) In revoking defendant’s supervised release and sentencing him to two years in custody, the district court found that the statutory one-year minimum term of imprisonment was inadequate due to his “drug depen-dence and the danger he presented to society.” On appeal, defendant argued that the court erroneously considered his drug dependence in determining the length his sentence. The 9th Circuit found it un-necessary to rule on this issue, but noted that section 5H1.4 provides that drug dependence “is not ordinarily relevant in determining whether a sentence should be outside the guidelines or where within the guidelines a sentence should fall.” U.S. v. Baclaan, 948 F.2d 628 (9th Cir. 1991).
9th Circuit holds that post-arrest drug rehabilitation efforts do not justify downward departure. (680) After his arrest and before sentencing, defendant participated in a drug rehabilitation program. The district court refused to depart downward to allow him to serve his sentence in the rehabilitation facility instead of prison, stating that it lacked power to do so. On appeal, the 9th Circuit affirmed, holding that a defendant’s post-arrest drug rehabilitation efforts “afford no basis for downward departure from the guidelines’ sentencing range, or for commitment to a drug treatment program in lieu of the sentence required by the guidelines.” The court thus agreed with the decisions in U.S. v. Sklar, 920 F.2d 107 (1st Cir. 1990), U.S. v. Pharr, 916 F.2d 129 (3rd Cir. 1990), and U.S. v. Van Dyke, 895 F.2d 984 (4th Cir. 1990), that § 5H1.4 forbids downward departure on the basis of drug dependance or drug “independence.” The court disagreed with the 6th Circuit’s opinion in U.S. v. Maddalena, 893 F.2d 815 (6th Cir. 1989), and two district court opinions which have recognized some discretion to depart downward on the basis of drug rehabilitation. U.S. v. Martin, 938 F.2d 162 (9th Cir. 1991).
9th Circuit rejects downward departure for drug dependence. (680) Defendant argued that his was not a drug dependence in the traditional sense, because he was addicted to opiates which resulted from legally prescribed drugs administered for medical treatment. Relying on several prior cases, the 9th Circuit rejected the argument, holding that guideline § 5H1.4 forecloses consideration of drug dependency as a ground for downward departure. U.S. v. Sanchez, 933 F.2d 742 (9th Cir. 1991).
9th Circuit rejects downward departure for drug dependence. (680) Defendant argued that his was not a drug dependence in the traditional sense, because he was addicted to opiates which resulted from legally prescribed drugs administered for medical treatment. Relying on several prior cases, the 9th Circuit rejected the argument, holding that guideline § 5H1.4 forecloses consideration of drug dependency as a ground for downward departure. U.S. v. Sanchez, 933 F.2d 742 (9th Cir. 1991).
9th Circuit rejects downward departure for drug dependence. (680) Defendant argued that his was not a drug dependence in the traditional sense, because he was addicted to opiates which resulted from legally prescribed drugs administered for medical treatment. Relying on several prior cases, the 9th Circuit rejected the argument, holding that guideline § 5H1.4 forecloses consideration of drug dependency as a ground for downward departure. U.S. v. Sanchez, 933 F.2d 742 (9th Cir. 1991).
9th Circuit rejects extreme alcoholism as a basis for downward departure. (680) Guidelines § 5H1.4 states that “drug dependance or alcohol abuse is not a reason for imposing a sentence below the guidelines.” Accordingly the 9th Circuit agreed with other circuits that a district court has no discretion to depart downward based on an appellant’s alcoholism, “irrespective of its extreme nature.” U.S. v. Page, 922 F.2d 534 (9th Cir. 1991).
9th Circuit rejects extreme alcoholism as a basis for downward departure. (680) Guidelines § 5H1.4 states that “drug dependance or alcohol abuse is not a reason for imposing a sentence below the guidelines.” Accordingly the 9th Circuit agreed with other circuits that a district court has no discretion to depart downward based on an appellant’s alcoholism, “irrespective of its extreme nature.” U.S. v. Page, 922 F.2d 534 (9th Cir. 1991).
9th Circuit reverses upward departure based on alcohol and cocaine abuse. (680) U.S.S.G. 5H1.4 declares that a defendant’s physical condition, including drug dependence and alcohol abuse, is ordinarily a factor that is not relevant in determining whether a sentence should be outside the guidelines. Thus the 9th Circuit held that before considering a departure based on dependency, “a sentencing judge should find that a particular defendant’s condition is so out of the ordinary that departure, rather than any other measure, is required, and state the reasons why a greater period of incarceration is more appropriate than a longer term of supervised release.” Because the district court in this case did not articulate its reasons for departing upward sufficiently, the court remanded the case for resentencing. U.S. v. Richison, 901 F.2d 778 (9th Cir. 1990).
9th Circuit reverses upward departure based on alcohol and cocaine abuse. (680) U.S.S.G. 5H1.4 declares that a defendant’s physical condition, including drug dependence and alcohol abuse, is ordinarily a factor that is not relevant in determining whether a sentence should be outside the guidelines. Thus the 9th Circuit held that before considering a departure based on dependency, “a sentencing judge should find that a particular defendant’s condition is so out of the ordinary that departure, rather than any other measure, is required, and state the reasons why a greater period of incarceration is more appropriate than a longer term of supervised release.” Because the district court in this case did not articulate its reasons for departing upward sufficiently, the court remanded the case for resentencing. U.S. v. Richison, 901 F.2d 778 (9th Cir. 1990).
10th Circuit says defendant’s physical condition did not require downward variance. (680) Before being sentenced on drug charges, defendant suffered a stroke that left him with severe mental and physical impairments. At sentencing, defendant argued that his condition made him a candidate for a downward departure or a variance. The Tenth Circuit upheld the district court’s rejection of the request, which resulted in a 135-month sentence. To overcome the presumption of reasonableness for a within-Guideline range sentence, an appellant must demonstrate that the district court abused its discretion under 18 U.S.C. § 3553(a). The sentence was procedurally reasonable. Because the sentence fell within the advisory Guideline range, the district court was required as a matter of law only to provide “a general statement of ‘the reasons for its imposition of the particular sentence.'” The court here referred to (1) the need to avoid disparities between defendant and his co-defendants, (2) the fact that defendant’s condition was not as extreme as he portrayed (he continued to care for himself and his 10-year old son after the stroke), (3) the BOP believed it could provide all of defendant’s health-related needs, and (4) incarceration was necessary to prevent defendant from associating with his ex-wife, a heavy drug user. U.S. v. McComb, 519 F.3d 1049 (10th Cir. 2007).
10th Circuit holds that court properly refused to grant variance based on cultural assimilation. (680) Defendant pled guilty to reentry after deportation. The district court denied defendant’s request to sentence him below the applicable guideline range based on his “cultural assimilation,” i.e. his close familial and cultural ties to the U.S. The Tenth Circuit held that the district court did not err in imposing a guideline sentence. First, it was “presumptively reasonable” for the court to sentence defendant within the applicable guideline range. Second, the court specifically reviewed and rejected defendant’s claim in light of the relevant factors contained in § 3553(a) and the circumstances of the case. The judge noted that he had seen “lots of tragic situations” where “families’ lives are torn by the border” and that he did not believe that defendant’s case warranted differentiation from the others. U.S. v. Galarza-Payan, 441 F.3d 885 (10th Cir. 2006).
10th Circuit upholds departure based on defendant’s access to rehabilitation services. (680) Defendant was arrested for violating a domestic restraining order and pled guilty to possessing a firearm by a prohibited person. The district court departed down by three levels based on a combination of 11 factors, including the negative effect incarceration would have on defendant’s rehabilitative counseling. The Tenth Circuit held that the district court did not abuse its discretion when it considered defendant’s access to rehabilitative counseling to support its downward departure. Defendant’s employment at a public health facility afforded him the opportunity for daily contact with his psychologist, putting defendant in a very special position to receive the most effective counseling for rehabilitation. Incarceration would sever defendant’s connection to a counselor the court found was beneficial to him. U.S. v. Jones, 158 F.3d 492 (10th Cir. 1998).
10th Circuit holds court failed to follow procedure in rejecting § 5H1.4 departure. (680) Defendant requested a departure under § 5H1.4 on the basis that he was infirm, a paraplegic, and had developed serious complications. The district court refused to depart and instead sentenced defendant at the top of the applicable guideline range. The court noted that defendant’s physical condition was not an excuse for criminal conduct, and that the court was “not in the business of rehabilitation,” but “in the business of punishing the sale of LSD.” The Tenth Circuit held that the district court failed to follow the mandate of the guidelines to exercise informed discretion guided by the standards of § 5H1.4. The district court must make a factual finding as to whether defendant’s disabilities constitute “an extraordinary physical impairment” under § 5H1.4. If so, the court must determine whether that condition warrants a shorter term of imprisonment or an alternative to confinement. One of the concerns under § 5H1.4 is the cost of imprisonment, not just concern for fairness to the defendant. U.S. v. Fisher, 55 F.3d 481 (10th Cir. 1995).
10th Circuit rejects drug rehabilitation as basis to depart even in rare cases. (680) The 10th Circuit held that drug rehabilitation was not a proper basis for a downward departure, even in exceptional cases. Drug rehabilitation is taken into account for sentencing purposes under section 3E1.1, the acceptance of responsibility provision. If a defendant’s drug abuse is closely associated with his criminal conduct, then drug rehabilitation may be considered in deciding whether the defendant had accepted responsibility. Moreover, even if drug rehabilitation were exceptional, it would not be a proper basis for departure. Section 5H1.4 states that drug or alcohol abuse is not a reason for making a downward departure. Although the section explicitly refers to drug dependence, not drug rehabilitation, the section encompasses both since drug rehabilitation presupposes drug dependence. U.S. v. Ziegler, 1 F.3d 1044 (10th Cir. 1993).
10th Circuit holds that departure was improperly based on drug rehabilitation efforts. (680) The 10th Circuit, adopting the reasoning of U.S. v. Ziegler, 1 F.3d 1044 (10th Cir. 1993), decided the same day, held that defendant’s drug rehabilitation efforts were not grounds for a downward departure. Contrary to defendant’s assertions, the departure was not based in part on defendant’s exceptional acceptance of responsibility. Moreover, even if it were, the sentence could not be affirmed, since there was no evidence that the court would impose the same sentence absent the improper reliance on defendant’s drug rehabilitation. Moreover, the court failed to elaborate why defendant’s acceptance of responsibility was so exceptional as to make section 3E1.1 inadequate. U.S. v. Gaither, 1 F.3d 1040 (10th Cir. 1993).
10th Circuit holds that non-custodial sentences are not sole means of making physical impairment departures. (680) Defendant requested a downward departure under section 5H1.4 based upon his physical and mental disabilities. The district court held that it was without authority to depart downward, since departures under section 5H1.4 are limited to those cases in which a defendant’s physical impairment is so extraordinary that only a non-custodial sentence is appropriate. The 10th Circuit remanded for re-consideration of defendant’s request, holding that section 5H1.4 is not so limited. The plain language of section 5H1.4 provides that an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range, and then gives as an example a situation where home detention is as efficient as, and less costly than, imprisonment. The example is the not exclusive means of following the policy statement, because such an interpretation would ignore the words “below the applicable guideline range.” U.S. v. Slater, 971 F.2d 626 (10th Cir. 1992).
10th Circuit rules that prevalence of alcohol abuse on an Indian reservation is not grounds for downward departure. (680) The district court refused to depart downward because it believed that the prevalence of alcohol on an Indian reservation was not a basis for departure. The 10th Circuit agreed, holding that the prevalence of alcohol abuse and race are not grounds for departure. U.S. v. Lowden, 905 F.2d 1448 (10th Cir. 1990).
10th Circuit rules that prevalence of alcohol abuse on an Indian reservation is not grounds for downward departure. (680) The district court refused to depart downward because it believed that the prevalence of alcohol on an Indian reservation was not a basis for departure. The 10th Circuit agreed, holding that the prevalence of alcohol abuse and race are not grounds for departure. U.S. v. Lowden, 905 F.2d 1448 (10th Cir. 1990).
11th Circuit reverses downward departure based on past abuse and mental condition. (680) Defendant was convicted of armed robbery and carrying a firearm during a felony. The district court departed downward based on defendant’s mental state, which it found was caused by past abuse. The 11th Circuit reversed, holding that the Sentencing Commission adequately considered a defendant’s mental condition in formulating the guidelines. Section 5H1.3 provides that mental and emotional conditions are not ordinarily relevant in determining whether a departure is appropriate, except as provided in Chapter Five. Section 5K2.13 is the only provision even marginally relevant to the instant case. It authorizes downward departures if the defendant committed a non-violent offense while suffering from significantly reduced mental capacity. Section 5K2.13 does not apply since armed robbery is not a “non-violent offense.” U.S. v. Braxton, 19 F.3d 1385 (11th Cir. 1994).
11th Circuit says exceptional recovery from drug-dependency may justify departure. (680) The 11th Circuit, following the 1st Circuit’s decision in U.S. v. Sklar, 920 F.2d 107 (1st Cir. 1990), held that a post-arrest, presentence recovery from drug addiction is a factor adequately considered by the sentencing commission in fashioning the acceptance of responsibility reduction under section 3E1.1. However, a truly extraordinary post-arrest, presentence recovery may exceed the degree of recovery contemplated in section 3E1.1 and therefore justify a downward departure. Section 5H1.4 does not prohibit a downward departure based on a drug recovery, it merely prohibits downward departures on the basis of a defendant’s theoretical diminished capacity because of his drug dependence. However, defendant’s situation did not merit a downward departure because her progress toward partial recovery during her five months in a court-ordered treatment plan was not sufficiently unusual to take her out of the heartland of cases. U.S. v. Williams, 948 F.2d 706 (11th Cir. 1991).
11th Circuit reverses downward departure based on dependent personality disorder. (680) Defendant was persuaded by his co-defendant to rob a bank at gunpoint. A psychologist diagnosed defendant as having a “dependent personality disorder,” which could cause him to do unpleasant things to win approval. The 11th Circuit rejected this as a grounds for a downward departure. A defendant’s emotional or mental condition is not ordinarily relevant in determining whether a departure is authorized. Defendant was not entitled to a downward departure based on his diminished capacity, since this is only available to one who commits a non-violent crime. Armed robbery is a crime of violence regardless of whether defendant’s gun was loaded or fired. Defendant was also not entitled to a departure based on coercion or duress, since there was no threat of injury or damage to property. Defendant introduced no evidence that his co-defendant “engaged in anything more substantial than run-of-the-mill persuasion.” U.S. v. Russell, 917 F.2d 512 (11th Cir. 1990).
D.C. Circuit reverses downward departure based on addiction, harshness of guidelines, and police conduct. (680) Defendant sold cocaine base for about three years before finally being arrested. An addict himself, the suppliers paid defendant in drugs for his personal use. The D.C. Circuit reversed a downward departure based on defendant’s addiction to drugs, the judge’s personal opinion that the guidelines sentencing range was too harsh, and police conduct in making 3 purchases before arresting defendant. Section 5H1.4 states that drug or alcohol dependence or abuse is not a reason for a downward departure. Because defendant’s addiction did not remove his case from the heartland of crack distribution cases, the district court was required to impose a sentence within the guideline range notwithstanding its personal opinion that the guideline range was disproportionate and unduly harsh. Finally, the fact that police did not arrest defendant after the first or second purchase could not, without more, provide grounds for a downward departure. Police are permitted to wait until a defendant has made multiple sales before arresting him. Moreover, the third sale alone crossed the 50-gram sentencing threshold. U.S. v. Webb, 134 F.3d 403 (D.C. Cir. 1998).
D.C. District Court rejects departure from career offender guideline. (680) Before holding the career offender guidelines unconstitutional, the D.C. District Court found no grounds for a downward departure, even though defendant’s three prior drug offenses were relatively minor. First, the three offenses were one more than necessary to trigger the career offender guideline. Moreover, one of these convictions occurred less than a year before the instant drug offense and each of the prior offenses involved distribution of either heroin or cocaine. Second, the claim that the prior offenses were the product of a drug addiction was not substantiated. Additionally, section 5H1.4 specifically states that drug dependence is not a ground for departure. Nevertheless, the court held the career offender guidelines unconstitutional. U.S. v. Spencer, 817 F.Supp. 176 (D.D.C. 1993).
D.C. Circuit holds drug rehabilitation does not justify downward departure. (680) The D.C. Circuit re-versed a downward departure based upon defendant’s potential for rehabilitation from drug addiction. How-ever, following the 1st Circuit’s decision in U.S. v. Sklar, 920 F.2d 107 (1st Cir. 1990), the court held that post-arrest but pretrial drug rehabilitation effort might justify a two-level reduction for acceptance of responsibility under section 3E1.1. The court left open the possibility that on a “rare occasion” a further reduction might be in order, but only if the rehabilitation was “so extraordinary as to suggest its presence to a degree not adequately taken into consideration by the acceptance of responsibility reduction.” Judge Edwards concurred, but wrote separately to express his “profound concerns” with the guidelines, arguing that they do not promote uniformity, but merely transfer discretion from the judges to the prosecutors and the probation office. Judge Silberman dissented. U.S. v. Harrington, 947 F.2d 956 (D.C. Cir. 1991).
D. C. District Court departs downward based on defendant’s probable success in drug treatment program. (680) The defendant, a 30-year-old drug addict who had no prior arrests or convictions, faced a sentence of from 8 to 12 years. District Judge Oberdorfer ruled that the guidelines rejection of addiction as a factor in sentencing provides “no evidence of consideration of a first offender drug addict’s probable success in drug treatment as a factor in sentencing.” The court held that “the absence of consideration of this mitigating factor constitutes a basis for departure where expert opinion and other evidence leads to a finding that successful treatment for drug addiction is likely.” Accordingly the judge departed downward and imposed a sentence of 5 years, plus 4 years on supervised release. U.S. v. Harrington, 741 F.Supp. 968 (D.D.C. 1990).
D. C. District Court departs downward based on defendant’s probable success in drug treatment program. (680) The defendant, a 30-year-old drug addict who had no prior arrests or convictions, faced a sentence of from 8 to 12 years. District Judge Oberdorfer ruled that the guidelines rejection of addiction as a factor in sentencing provides “no evidence of consideration of a first offender drug addict’s probable success in drug treatment as a factor in sentencing.” The court held that “the absence of consideration of this mitigating factor constitutes a basis for departure where expert opinion and other evidence leads to a finding that successful treatment for drug addiction is likely.” Accordingly the judge departed downward and imposed a sentence of 5 years, plus 4 years on supervised release. U.S. v. Harrington, 741 F.Supp. 968 (D.D.C. 1990).
D.C. District Court departs downward for diminished capacity and vulnerability to attack in prison. (680) Defendant pled guilty to conspiracy, and was originally sentenced to three years. The Court of Appeals reversed. On remand the D.C. District Court found that defendant committed a nonviolent offense, that the offense did not result from the voluntary use of drugs, that defendant’s criminal history did not suggest a need for incarceration, and that defendant committed the offense while suffering from a significantly reduced mental capacity. Accordingly, the court departed downward pursuant to guidelines § 5K2.13 and sentenced defendant to two years. The court also found that defendant’s “extreme vulnerability” to attack in prison was a further ground for departure. Defendant was mentally retarded, and while in prison, had been the subject of a savage attack which caused severe head trauma. As a conse-quence defendant was frightened and could no longer sleep at night. He suffered headaches and when he slept during the day he suffered nightmares. The court found these facts justified a departure under guidelines § 5H1.4, which provides that “an extraordinary physical impairment may be reason to impose a sentence other than imprisonment.” U.S. v. Adonis, 744 F.Supp. 336 (D.D.C. 1990).
New York District Court departs downward to permit drug addict to continue methadone treatment. (680) Defendant pled guilty to distributing and possessing heroin. The District Court for the Southern District of New York departed downward and sentenced her to four years’ probation because she was a first-time offender who had been raised in an abusive and alcoholic environment. She had been addicted to heroin for over 14 years, and since her arrest, she had been participating in a methadone program and was making progress. The court found that if incarcerated, defendant would be unable to continue her methadone treatment in an effective manner. Policy statement 5H1.4, stating that drug dependency is not a reason for a downward departure, was not applicable. The court found that the Sentencing Commission had ignored Congress’s mandate to consider the purposes of sentencing in promulgating the guidelines. The guidelines do not take into account research which concludes that comprehensive drug treatment programs can be effective in reducing both drug use and criminal behavior. U.S. v. Maier, 777 F.Supp. 293 (S.D.N.Y. 1991), aff’d, U.S. v. Maier, 975 F.2d 944 (2nd Cir. 1992).
New York District Court departs downward for pregnant woman to avoid permanent loss of parental rights. (680) At the time of sentencing, defendant, a Ghanaian resident alien, was seven months pregnant with her second child by a father who she planned to marry. The pregnancy had been difficult, and defen-dant had been bedridden for much of the period prior to her sentencing. The parties agreed that imprison-ment for more than a year after the birth of the child would likely cause defendant to lose custody. Defen-dant had no family member in this country to care for the child, and therefore would be required to name the state as legal guardian of the child within a few days of giving birth. Under state law, defendant would almost certainly lose permanent custody of the child. The District Court for the Eastern District of New York therefore departed downward “to protect the health of the mother and child and to permit the mother to be united with her child.” Defendant was sentenced to time served and five years of supervised release. In addition, the probation officer was directed to arrange for defendant’s transportation to Ghana. If possible, such transportation should occur prior to the child’s birth, since if born in the United States the child would be an American citizen with the right to look to the community for support, and because the cost of caring for the mother and child for the next several months would be significant. U.S. v. Pokuaa, 782 F.Supp. 747 (E.D.N.Y. 1992).
New York District Court departs downward to statutory minimum based upon defendant’s cancer. (680) During pretrial detention, defendant was diagnosed as having testicular cancer. He eventually pled guilty to drug charges, which resulted in an applicable guideline range of 151 to 188 months. Defendant moved for a downward departure under guideline § 5H1.4 and 5K2.0 on the ground that his metastasized cancer was a serious life-threatening illness constituting an extraordinary physical impairment. The government agreed at sentencing not to contest a court ruling that defendant’s cancer was a mitigating circumstance not contemplated by the guidelines. Accordingly, the Eastern District of New York departed downward and sentenced defendant to five years imprisonment, the statutory minimum. Since no recommendation of leniency was made by the government, a term of imprisonment below the statutory minimum was not permissible. U.S. v. Velasquez, 762 F.Supp. 39 (E.D.N.Y. 1991).
Indiana District Court refuses to depart downward based on defendant’s overcoming drug dependency. (680) After indictment, the defendant overcame his dependency on cocaine. Judge Miller of the Northern District of Indiana noted that under U.S.S.G. § 5H1.4 drug dependency is ordinarily not a basis for imposition of a sentence below the guideline range. The judge ruled that given that provision, “a downward departure for success in overcoming a drug dependency … can provide a basis for departure only in unusual cases.” The court found that defendant’s case was not unusual. U.S. v. Sergio, 734 F.Supp. 842 (N.D. Indiana 1990).
Indiana District Court refuses to depart downward based on defendant’s overcoming drug dependency. (680) After indictment, the defendant overcame his dependency on cocaine. The Northern District Court of Indiana noted that under U.S.S.G. § 5H1.4 drug dependency is ordinarily not a basis for imposition of a sentence below the guideline range. The judge ruled that given that provision, “a downward departure for success in overcoming a drug dependency … can provide a basis for departure only in unusual cases.” The court found that defendant’s case was not unusual. U.S. v. Sergio, 734 F.Supp. 842 (N.D. Indiana 1990).
New York District Court departs downward to statutory minimum based upon defendant’s cancer. (680) During pretrial detention, defendant was diagnosed as having testicular cancer. He eventually pled guilty to drug charges, which resulted in an applicable guideline range of 151 to 188 months. Defendant moved for a downward departure under guideline § 5H1.4 and 5K2.0 on the ground that his metastasized cancer was a serious life-threatening illness constituting an extraordinary physical impairment. The government agreed at sentencing not to contest a court ruling that defendant’s cancer was a mitigating circumstance not contemplated by the guidelines. Accordingly, the Eastern District of New York departed downward and sentenced defendant to five years imprisonment, the statutory minimum. Since no recommendation of leniency was made by the government, a term of imprisonment below the statutory minimum was not permissible. U.S. v. Velasquez, 762 F.Supp. 39 (E.D.N.Y. 1991).
Commission rules out addiction to gambling as a basis for departure. (680) Effective October 27, 2003, the Commission added a prohibition to § 5H1.4 to prohibit departures based on addiction to gambling. The Commission determined that a departure based on addiction to gambling is never warranted. October 27, 2003 amendment, Part II.
Commission disapproves of departures based on appearance or physique. (680) The policy statement under section 5H1.4 was amended on November 1, 1991 to express the Commission’s position that a defendant’s appearance or physique is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range.
Article endorses downward departures for drug rehabilitation (680) A student author assesses the four primary arguments that have been employed against departures based on a defendant’s post-arrest drug rehabilitation: that the factor is adequately considered by the acceptance of responsibility provision, that such departures are precluded by section 5H1.4, that such departures are contrary to the statutory command about the proper role of rehabilitation in sentencing, and that such departures are unfair to defendants who were not addicted and therefore do not have an opportunity to earn the departure. Rejecting these arguments, the author nevertheless finds wanting the rationales of courts that have permitted such departures and suggests an alternative. The author notes that a proposed 1992 amendment is “designed to foreclose departure” by explicitly permitting consideration of drug rehabilitation under the acceptance of responsibility guideline. Note, Downward Departures from the Federal Sentencing Guidelines Based on the Defendant’s Drug Rehabilitative Efforts, 59 U. CHICAGO L. REV. 837-64 (1992).