§690 Specific Offender Characteristics: Employment, Family Ties
8th Circuit says denial of departure based on family ties is unreviewable. (690)(860) Defendant sought a downward departure under § 5H1.6 from his drug-trafficking sentence based on his difficult upbringing in Mexico. The district court denied the departure. In the Eighth Circuit, a departure is unreviewable on appeal unless the district court had an unconstitutional motive or erroneously thought it was without authority to grant a departure. Without elaborating, the Eighth Circuit found that neither circumstance was present, so it denied review of defendant’s requested departure. U.S. v. Angeles-Moctezuma, __ F.3d __ (8th Cir. June 24, 2019) No. 18-3227.
Supreme Court reverses departure based on collateral employment consequences for police officers. (690) The district court departed downward on the ground that the police officers who were convicted of beating Rodney King would lose their jobs and be disqualified from other law enforcement careers. The Supreme Court held that this departure was an abuse of discretion. It is to be expected that a public official convicted of using governmental authority to violate a person’s rights would lose his or her job and be barred from similar employment in the future. Therefore, it must be concluded that the Commission adequately considered these consequences in formulating § 2H1.4, the civil rights guideline. The career loss factor, as it existed in this case, did not take the case out of the § 2H1.4 “heartland.” Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996).
1st Circuit holds that 91-month downward deviation from guideline range was substantively reasonable. (690) Based on defendant’s status as a career offender, and after a one-level criminal history departure, defendant’s guideline range was 235-293 months. After considering the § 3355(a) factors, the court imposed a 144-month sentence, a full 91 months below the bottom of the guideline range. The court cited defendant’s close family relationships and support of his family, his strong commitment to a law-abiding life, and a desire to bring defendant’s sentence in line with other defendants involved in the drug conspiracy. The First Circuit held that the sentence was reasonable, noting that there is not a single reasonable sentence, but a range of reasonable sentences. Thus, reversal will result if, and only if, the sentencing court’s ultimate determination falls outside “the expansive boundaries of that universe.” The support of defendant’s family was a proper consideration. While U.S.S.G. § 5H1.6 generally discourages consideration of family circumstances, courts may vary from the Guidelines based solely on policy matters, including disagreements with the Guidelines. See Kimbrough v. U.S., 128 S. Ct. 558 (2007). A variance may also be based on the defendant’s potential for rehabilitation. Finally, “district courts have discretion, in appropriate cases, to align co-defendants sentences somewhat in order to reflect comparable degrees of culpability – at least in those cases where disparities are conspicuous and threaten to undermine confidence in the criminal justice system.” U.S. v. Martin, 518 F.3d 989 (1st Cir. 2008).
1st Circuit remands where court felt constrained by guidelines. (690) Defendant raised a Sixth Amendment challenge to his sentence for the first time on appeal. Reviewing for plain error, the First Circuit found prejudice and fundamental unfairness, concluding that defendant would have likely received a lesser sentence under the post-Booker advisory guidelines. The record contained some indication that the district court felt itself constrained by the guidelines. The court noted that defendant’s arguments were “legitimate” and “somewhat mitigating,” and should be considered in determining where within the guidelines range defendant’s sentence should fall; but it concluded that these factors “do not approach was is required to justify a downward departure,” that age and physical condition were both discouraged as grounds for departure, and that defendant’s traits, although worthy of consideration, were insufficient to take the case outside the heartland of the guidelines. U.S. v. Heldeman, 402 F.3d 220 (1st Cir. 2005).
1st Circuit cannot review refusal to grant family circumstances departure. (690) Defendant contended the district court abused its discretion in failing to grant a downward departure to reflect the extraordinary family circumstances his incarceration and his wife’s imminent deportation would have upon his three children. However, a discretionary refusal to depart is not appealable if the district court correctly applied the guidelines. Here, the court recognizing the “unfortunate fact of life” that both parents may face imprisonment, and expressly declined to depart under § 5H1.6. Therefore, the First Circuit ruled that it lacked authority to review the refusal to depart. U.S. v. Morgan, 384 F.3d 1 (1st Cir. 2004).
1st Circuit holds that motive of returning to U.S. to care for daughter was equivalent to family ties and responsibilities. (690) Defendant was convicted of illegally reentering the U.S. after deportation. He argued that he should receive a downward departure because his motivation for returning, to care for his young daughter, took him out of the “heartland” of illegal reentry defendants. The First Circuit found that defendant’s claim was essentially based on factors accounted for in U.S.S.G. § 5H1.6, family ties and responsibilities. There is nothing in the text of § 5H1.6 stipulating that family ties and responsibilities is only a discouraged factor in assessing the consequences of a sentence and not in assessing the culpability for a crime. Therefore, the court did not reach the separate question of whether motivation as a separate category is ever a permissible ground for departure. The district court found that the facts of defendant’s family ties and responsibilities were not sufficiently exceptional to warrant a departure on this ground. Because the court did not misunderstand its legal authority to depart, but merely exercised its jurisdiction not to do so, the First Circuit lacked jurisdiction to review the court’s refusal to depart. U.S. v. Mejia, 309 F.3d 67 (1st Cir. 2002).
1st Circuit says family circumstances departure requires defendant to be “irreplaceable.” (690) Stating that it was “distilling” existing judicial principles, the First Circuit held that, at a minimum, a defendant must be found to be “irreplaceable” in order to be eligible for a downward departure based on family obligations. The court noted that family ties and responsibilities is a discouraged factor for departure under guideline § 5H1.6, and the circumstances justifying departure must be extraordinary. In the present case, defendant estimated that he spent approximately 20 hours per week tending to his elderly parents’ needs, including preparing their meals, cleaning their house, doing their laundry, making appointments with their physicians, administering their medications and shopping for food. Since his parents did not speak English, he also served as an interpreter for them. Nevertheless, the First Circuit held that these circumstances were not extraordinary. Therefore the district court abused its discretion in granting a downward departure based on family obligations. U.S. v. Pereira, 272 F.3d 76 (1st Cir. 2001).
1st Circuit holds that court improperly limited comparison of departure factors to crack cases. (690) Defendant pled guilty to distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1). The district court departed downward, finding defendant’s family obligations and employment record were extraordinary when compared to other crack cocaine offenders. The First Circuit reversed, since under U.S. v. DeMasi, 40 F.3d 1306 (1st Cir. 1994), when a court contemplates a downward departure based on a discouraged factor, it must compare the defendant to others who exhibit that factor, not to others who have been convicted of the same offense. The district court did what DeMasi forbids: it limited its inquiry to cases involving crack cocaine dealers, and then asked whether defendant’s record stood apart from the rest. Thus, the district court erred as a matter of law. U.S. v. Thompson, 234 F.3d 74 (1st Cir. 2000).
1st Circuit upholds downward departure based on regression child would suffer if defendant were incarcerated. (690) Reviewing a downward departure under the more restrictive standard announced in U.S. v. Rivera, 994 F.2d 942 (1st Cir. 1993), the 1st Circuit upheld a downward departure based upon defendant’s family situation. The 12-year old son of the woman defendant had been living with had suffered various psychological problems as a result of his abusive father. Defendant had developed a warm and trusting relationship with the boy, who now viewed defendant as his stepfather. The boy’s psychologists believed that this relationship played an important role in the boy’s progress, and that removal of defendant could trigger a major regression. The psychological treatment and observations of the boy were clearly not contrived or fabricated to assist defendant. U.S. v. Sclamo, 997 F.2d 970 (1st Cir. 1993).
1st Circuit rejects further downward departure for single mother of three children. (690) The district court granted the government’s motion for a downward departure under section 5K1.1 based on defendant’s substantial assistance, and denied defendant’s request for a downward departure based upon her family responsibilities as a single mother of small children. Notwithstanding guideline section 5H1.6, defendant argued that the district court could consider her status as a single parent in determining the extent of the departure. According to defendant, once the government moved for departure under section 5K1.1, it opened the door for the court to consider factors unrelated to her assistance to the government in determining the extent of the departure, even if those factors were listed elsewhere as irrelevant in determining the appropriateness of a departure. The 1st Circuit held that even if a court could base the extent of a departure under section 5K1.1 on factors not listed in section 5K1.1, any additional non-listed factors would have to relate to the defendant’s substantial assistance to authorities. Moreover, defendant’s status as a single mother of three young children was not an unusual family circumstance. The sentencing commission was aware that some convicted felons are single parents of small children. U.S. v. Chestna, 962 F.2d 103 (1st Cir. 1992).
1st Circuit rejects downward departure based upon family ties, employment record and drug dependency. (690) Although the district court departed downward based upon defendant’s substantial assistance, defendant urged the court to depart further based upon his stable employment record, strong family ties, and rehabilitation from a drug addiction. The court refused, stating that it could not consider those reasons. On appeal, defendant argued that the judge mistakenly thought himself without power to depart. The government, however, argued that the judge exercised his discretion not to depart on those grounds. The 1st Circuit found the district court acted properly, even assuming defendant was right and the district court thought it was without power to depart. The facts in the record did not show any unusual circumstances to justify a departure. U.S. v. Rushby, 936 F.2d 41 (1st Cir. 1991).
1st Circuit reverses downward departure based upon defendants’ responsibilities to their four-year-old son. (690) Defendant and her husband were convicted of mail fraud. The district court departed downward based upon defendants’ responsibilities to their four-year-old son, and the 1st Circuit reversed. Defendants’ responsibilities did not place them outside the “heartland” of typical cases. Moreover, the district court could have limited the impact on defendants’ son by staying the execution of sentence of one parent until the other’s sentence had been served. The district court’s belief that the downward departures were “fair” compared to other defendants in other cases was also an improper ground for departure. U.S. v. Carr, 932 F.2d 67 (1st Cir. 1991).
1st Circuit reverses downward departure based on defendant’s pregnancy, marital relationship, and lack of nearby halfway house. (690) The district judge departed downward from the guidelines on the ground that 1) the defendant was pregnant and should not have to bear her child in prison, 2) she had “no alternative” to participating in her husband’s drug trafficking activities and 3) there was no halfway house in Maine. The 1st Circuit reversed, holding that “as a matter of law” none of these reasons justified a downward departure. The court expressly disapproved a “totality of the circumstances” approach, holding that the guidelines “must be applied on a factor-by-factor basis.” The court also rejected the district court’s reliance on the effect on defendant of her husband’s imprisonment, stating that “family ties and re-sponsibilities” are not relevant under the guidelines. See U.S.S.G. 5H1.6. The downward departure was reversed. U.S. v. Pozzy, 902 F.2d 133 (1st Cir. 1990).
2nd Circuit finds fact that defendant’s wife would have to postpone college and supplement income not extraordinary. (690) In support of his motion for a downward departure, defendant submitted letters from his wife and his mother to the effect that the family was dependent upon him for emotional and financial support. The letters demonstrated that defendant had a close relationship with his two-year old son and played a major role in caring for him. The letters further indicated that defendant’s wife would be forced to stop going to college if he were sentenced to imprisonment. The district court granted defendant a downward departure for exceptional family circumstances, and the Second Circuit reversed. It would not cause extraordinary hardship if defendant were imprisoned. Defendant was not the sole caregiver or financial supporter of his son. It was true that during the relatively brief period of incarceration that defendant faced, his wife would probably be required to postpone her college studies and seek to supplement her income. It is not unusual, however, for a convicted defendant’s incarceration to cause some hardship in the family. The hardship here would not be of long duration nor particularly severe, and could be alleviated by the availability of defendant’s mother and half-sister for child care. U.S. v. Smith, 331 F.3d 292 (2d Cir. 2003).
2nd Circuit holds that family circumstances departure was abuse of discretion. (690) At the time of defendant’s sentencing, only one of her six children was under 18. In support of a downward departure based on family circumstances, the district court cited the “very serious problems” faced by defendant’s three youngest children, namely that her youngest child, who had a learning disability, was having difficulty in school, that her 18-year old son had cut classes and failed to graduate, and that her youngest daughter, who was then 22 years old, had suffered from a major depression and had attempted suicide. The court found that there was a “causal connection” between these problems and “the absence of a mother.” The court apparently concluded that defendant’s parents and her oldest daughter were struggling to care for the three youngest children, and that defendant would be better able to care for the children than any of the other available caretakers, but the court did not conclude that defendant was the only person capable of providing adequate care for the youngest children. The Second Circuit found that these circumstances, while unfortunate, were not “extraordinary.” The departure was an abuse of discretion. U.S. v. Madrigal, 331 F.3d 258 (2d Cir. 2003).
2nd Circuit reverses downward departure based on lesser harm, family circumstances, and criminal history. (690) Defendant pled guilty to illegal reentry following deportation. The district court departed downward on three grounds: lesser harm, § 5K2.11, exceptional family circumstances, § 5K2.0, and overstated criminal history, § 4A1.3. The Second Circuit reversed. Defendant was not eligible for a lesser harm departure. This ground for departure was based on the judge’s finding that defendant had not illegally reentered the country for the purpose of committing another crime. However, the “harm” from the crime of illegal reentry is the illegal reentry itself. A deported alien reentering the country illegally, even without the intent to commit a crime, has done the essence of what the statute is intended to prohibit. The court made no findings that would support a departure for exceptional family circumstances, and the evidence provided no basis for such a finding. The illness of defendant’s father, residing in this country, also did not provide a basis for departure. Regardless of the length of defendant’s sentence, he would not be able to care for his father, because upon his release, defendant will be deported. Finally, although defendant fell within criminal history category III, he had only had one prior conviction. Exceptional circumstances would have to be shown to warrant a horizontal departures to reduce the criminal history for a defendant with only one prior conviction. U.S. v. Carrasco, 313 F.3d 750 (2d Cir. 2002).
2nd Circuit reverses downward departure for harm to children’s marriage prospects. (690) Defendant was involved in a scheme to defraud several insurance companies. The district court departed downward in response a motion from defendant’s rabbi on behalf of the Orthodox Jewish sect of which defendant was a member. The custom of defendant’s community was for fathers to arrange the marriages of their children. The court departed downward partly because a long period of incarceration would unduly harm the marriage prospects of three of defendant’s children. The Second Circuit reversed. Diminished marriage prospects is not an extraordinary circumstance. Defendant’s children could claim no more than most children of incarcerated parentsthat the stigma of their parent’s punishment has lessened their desirability as marriage partners. To the extent the circumstances of defendant’s children were atypical because the marriage practices of defendant’s religious community placed special emphasis on the role of the father, this was an improper basis for departure. By giving special deference to the customs of a particular religious community, the district court treated adherents of defendant’s religion more favorably than non-adherents who desire to plan their children’s future. U.S. v. Sprei, 145 F.3d 528 (2d Cir. 1998).
2nd Circuit limits Galante’s family circumstances departure to its precise facts. (690) In U.S. v. Galante, 111 F.3d 1029 (2d Cir. 1997), superseded by statute as stated in U.S. v. Leiva-Deras, 356 F.3d 183 (2d Cir. 2004), a Second Circuit panel affirmed a downward departure based on defendant’s family circumstances. On denial of rehearing en banc, the Second Circuit noted that the panel decision was limited to its precise facts and should not be regarded as an invitation to district judges to depart downward in the absence of truly exceptional family circumstances. U.S. v. Galante, 128 F.3d 788 (2d Cir. 1997) (on denial of rehearing en banc).
2nd Circuit rejects downward departure to allow defendant to have child during wife’s remaining childbearing years. (690) The district court departed downward so that defendant and his wife, who had taken expensive fertility treatments, could conceive a child during the wife’s remaining childbearing years. The Second Circuit reversed. In past departures under § 5H1.6 for extraordinary family circumstances, the intended beneficiaries of the departure were the dependent and vulnerable people to whom the defendant had demonstrated long-term financial and emotional commitment. In contrast, the sentence reduction sought by defendant would chiefly benefit himself. Moreover, separation of defendant from his family had no public or social costs other than his incarceration. The unremarkable effect on defendant’s incarceration was merely to foreclose opportunities for fulfillment and happiness that law-abiding people enjoy. The fact that the fertility treatments were expensive was not important; it was possible that they were financed in whole or part by defendant’s drug proceeds. U.S. v. Londono, 76 F.3d 33 (2d Cir. 1996).
2nd Circuit rejects downward departure based on collateral consequences to alien. (660) Defendant, who was married to a U.S. citizen with whom he had three children, was a conditional permanent resident alien of the U.S. The district court departed downward because as an alien, defendant would suffer three consequences as a result of his conviction: (a) he would be deported, and thus separated from his family, (b) he would be ineligible to serve part of his sentence in a minimal security prison or in a community custody program, and (c) he would be incarcerated in an INS facility for an additional period while awaiting deportation. The 2nd Circuit reversed. It rejected the government’s contention that alienage can never be considered as grounds for departure, but found that the bases relied upon by the court did not justify the departure. Although deportation might cause hardship, reduction of the prison term would not make those effects less harsh. U.S. v. Restrepo, 999 F.2d 640 (2nd Cir. 1993).
2nd Circuit remands to reconsider downward departure for extraordinary family circumstances. (690) Defendant argued that the district court did not fully appreciate its power to depart downward for extraordinary family circumstances. After defendant was sentenced, the 2nd Circuit recognized in U.S. v. Johnson, 964 F.2d 124 (2nd Cir. 1992) that a district court has considerable discretion to depart downward for extraordinary family circumstances. Here, the 2nd Circuit agreed that it was unclear whether the district court was aware of this discretion, and accordingly remanded for reconsideration of whether a downward departure was appropriate. U.S. v. Califano, 978 F.2d 65 (2nd Cir. 1992).
2nd Circuit upholds downward departure based upon family circumstances. (690) Section 5H1.6 states that family ties and responsibilities are not ordinarily relevant in determining whether a sentence should be outside the guideline range. The 2nd Circuit found that this meant that the sentencing commission took ordinary family circumstances into account when formulating the guidelines, and thus ordinary family circumstances do not justify a downward departure. Extraordinary circumstances, however, are by their nature not capable of adequate consideration, and therefore extraordinary family circumstances may justify a downward departure. Defendant faced such extraordinary family circumstances. She was a single mother who served as the sole support for her three small children under the age of six, her institutionalized daughter’s six-year old child, and her 17-year old son. Extraordinary parental duties can constitute extraordinary family circumstances. U.S. v. Johnson, 964 F.2d 124 (2nd Cir. 1992).
2nd Circuit affirms extraordinary family circumstances as ground for downward departure. (690) The 2nd Circuit found that the record supported the conclusion that defendant’s family circumstances were extraordinary, justifying a downward departure. Defendant had been married 12 years. He lived with his wife, two small children, disabled father, who depended upon defendant to get him in and out of his wheelchair, and his paternal grandmother. He had long-standing employment, and worked two jobs to maintain his family’s economic well-being. The district court found that defendant’s incarceration “might well result in the destruction of an otherwise strong family unit.” Under these circumstances, relying upon defendant’s family circumstances to depart downward was not an abuse of discretion. U.S. v. Alba, 933 F.2d 1117 (2nd Cir. 1991).
2nd Circuit remands case where unclear whether judge knew he could depart. (690) Defendant urged a downward departure on the basis of duress and his extensive family responsibilities. It was beyond dispute that defendant had extensive family responsibilities, and the 2nd Circuit found that the record was unclear as to whether the district judge was aware that he had the ability to depart on this basis. At one point the judge suggested that he concluded that defendant’s circumstances did not justify a departure, and at another point the judge suggested that he would have given defendant a sentence of probation, but that his “hands are tied by the new guidelines.” The case was remanded for the district court to clarify whether it recognized that it had the discretion to depart downward under the guidelines. U.S. v. Sharpsteen, 913 F.2d 59 (2nd Cir. 1990).
2nd Circuit upholds downward departure based on defendant’s lack of sophistication and employment history. (690) Defendant was convicted of bribing a New York City environmental control board inspector. He bribed the officer by tendering a personal check made out to cash in the amount of $2,000. The officer declined to accept the check, so defendant cashed it and gave the officer $2,000 in cash. Based upon defendant’s lack of a criminal record, his employment record which revealed that he had been gainfully employed since he came to the U.S. nine years earlier, and the “remarkable way in which this entire transaction occurred,” the court departed downward from the guidelines and sentenced defendant to 3 years probation and a $4,000 fine. The government appealed, and the 2nd Circuit affirmed. The court held that the sentencing court’s reliance on the defendant’s lack of a criminal record was improper. However, the defendant’s previous employment record was a proper factor for departure, and the defen-dant’s use of the personal check in the bribery transaction reflected an utter lack of sophistication. This constituted a mitigating factor of a kind or to a degree not adequately considered by the guidelines. U.S. v. Jagmohan, 909 F.2d 61 (2nd Cir. 1990).
3rd Circuit upholds refusal to vary based on family circumstances. (690) Defendant pled guilty to 10 counts of fraud. She requested a mitigated sentence of 12 months and one day because she was the sole provider for her mother and mentally challenged granddaughters. The district court calculated defendant’s guideline range at 18-24 months, and sentenced her to 18 months. Defendant argued that the district court was unfaithful to Gall, where the Supreme Court rejected a rule that would have required “extraordinary circumstances” to justify a sentence outside of the Guidelines range. The Third Circuit upheld the guideline sentence. Contrary to defendant’s argument, the district court did not believe that extraordinary circumstances were required to warrant a variance. The court noted that defendant’s family circumstances were unfortunate, but the hardship she claimed was similar to that experienced by many if not most families of convicted felons. U.S. v. Kennedy, 554 F.3d 415 (3d Cir. 2009).
3rd Circuit finds court erred in ruling that it lacked discretion to depart downward for family situation. (690) Defendant resided with her elderly parents, who were physically and financially dependent on her because of a variety of health problems. The district judge found that defendant’s family circumstances were “truly tragic,” but concluded that “I lack discretion to grant downward departure in the circumstances of this case.” The Third Circuit ruled that the district court erred in ruling that it lacked the discretion to depart based on defendant’s family circumstances. The court misunderstood U.S. v. Sweeting, 213 F.3d 95 (3d Cir. 2000), which held that a district court cannot grant a downward departure based principally on generic concerns regarding breaking up families. That case did not diminish the discretion granted to the district court for downward departures when the evidence supports a finding of unusual family circumstances. A downward departure here would be within the court’s discretion given its findings regarding defendant’s extraordinary family needs and the absence of any other readily available source of meeting those needs. Defendant was terminated from her banking position and posed no threat to society, so incapacitation appeared unjustified. Moreover, she lost her employment and her reputation, all for no gain, hence her punishment would have a significant deterrent effect. U.S. v. Dominguez, 296 F.3d 192 (3d Cir. 2002).
3rd Circuit rejects downward departure for mother of five, including one with Tourette’s Syndrome. (690) Defendant was a single mother of five children between the ages of 5 and 14. Her oldest son suffered from Tourette’s Syndrome, a neurological disorder. In order to control the disease’s symptoms, defendant got him up at dawn for physical exercise, monitored and regulated the type of food he ate, regulated his medicine, and organized his personal habits and school work. The Third Circuit reversed a 12-level downward departure based on defendant’s family ties and responsibilities. None of the factors the district court considered, taken individually or in their entirety, made defendant’s family ties and responsibilities extraordinary. The fact that defendant was a devoted single mother of five children was insufficient to remove this case from the heartland. See U.S. v. Headley, 923 F.2d 1079 (3d Cir. 1991). Single parents often commit crimes requiring incarceration. The only factor that made defendant’s case unusual was the fact that her oldest son suffered from Tourette’s Syndrome. However, neither severity of the child’s condition nor the nature of the care defendant provided were extraordinary. The care that the son required was not so unique or burdensome that another responsible adult could not provide it in defendant’s absence. Moreover, the child’s condition was not severe enough to preclude him from participating in various school and social activities. Finally, the extent of the departure (12 levels) necessary to avoid disrupting the family was large. U.S. v. Sweeting, 213 F.3d 95 (3d Cir. 2000).
3rd Circuit upholds downward departure for mental anguish defendant felt for causing son to be convicted of crime. (690) The district court departed downward in part based on the mental anguish defendant felt seeing his son, otherwise a law-abiding citizen with an excellent future, convicted of a crime because of his father’s fraudulent scheme. The 3rd Circuit agreed that the case was sufficiently extraordinary to support the court’s decision to depart. Bringing a child into a criminal scheme is not always an aggravating circumstance, especially when the defendant did not understand that what he was asking the child to do violated the law. Neither § 3B1.3 (abuse of trust) nor § 5H1.6 (family ties) prohibited a departure in this extraordinary situation. It is entirely probable that defendant never intended to criminalize his son and was deeply and legitimately shocked and remorseful when it happened. Any language in U.S. v. Newby, 11 F.3d 1143 (3rd Cir. 1993), which suggests that a departure can only be based on reduced moral culpability, is dictum. U.S. v. Monaco, 23 F.3d 793 (3rd Cir. 1994).
3rd Circuit says court may depart downward for defendant solely responsible for care of mentally ill wife. (690) Defendant pled guilty to fraudulently using a social security number to obtain things of value. For almost thirty years, his wife suffered from a serious mental illness. The illness alienated their children and friends, and defendant was solely responsible for his wife’s care. Due to her illness, he was forced to take early social security retirement to care for her. Ever since defendant was imprisoned, his wife did not leave the house or visit her doctor, and was subsisting on food left by her daughter at the house once a week. The 3rd Circuit rejected the district court’s conclusion that it lacked discretion to depart downward under section 5H1.6 for defendant’s extraordinary family responsibilities. The degree of care required for defendant’s wife, the lack of close supervision by any family member other than defendant, the risk to the wife’s well being, the relatively brief imprisonment sentence called for by the guidelines (8 months), the lack of any end to be served by imprisonment, and the lack of any threat to the community all were factors that warranted a departure. U.S. v. Gaskill, 991 F.2d 82 (3rd Cir. 1993).
3rd Circuit rejects downward departure based upon work history, family responsibility, role in community affairs. (690) The 3rd Circuit rejected defendant’s claim that the district court erred in not departing downward based upon his work history, family responsibility, role in community affairs and lack of criminal history. The Sentencing Commission has determined that factors such as family responsibility, work history and ties to the community may not be taken into consideration in determining an appropriate sentence. Moreover, defendant’s lack of criminal history was taken into account in placing him in criminal history category I. Finally, the court lacked jurisdiction to consider the sentencing court’s refusal to depart downward, unless the refusal was based on the erroneous belief that it lacked the power to do so. U.S. v. Salmon, 944 F.2d 1106 (3rd Cir. 1991).
3rd Circuit affirms refusal to consider military record as a basis for departure. (690) The guidelines do not require consideration of past military service at sentencing. Defendant argued that the district court erred in refusing to consider his military record at sentencing as a grounds for departure, thereby denying him due process of law. The 3rd Circuit rejected the argument, holding that the appeal “posits a substantive due process right to individualized treatment in sentencing. This argument has no vitality after our decision in U.S. v. Frank, 864 F.2d 992, 1009 (3rd Cir. 1989).” U.S. v. Chiarelli, 898 F.2d 373 (3rd Cir. 1990).
4th Circuit holds that probationary sentence for felon in possession of firearm was unreasonable. (690) Defendant pled guilty to being a felon in possession of a firearm. Although he had an advisory guideline range of 57-71 months’ imprisonment, the district court, relying on the § 3553(a) factors, imposed a non-guideline sentence of three years’ probation. The court noted that defendant worked regularly, the offense involved no injury, and a term of imprisonment would likely force defendant’s children into foster care. The Fourth Circuit held that the probationary sentence was unreasonable. Such a dramatic variance from the advisory guideline range must be supported by compelling justifications related to § 3553(a) factors, and “excessive weight” may not be given to any single factor. Here, although the court briefly mentioned two § 3553(a) factors – deterrence and protection of the public, the court never explained how the sentence imposed served these interests. In truth, the court actually relied on only one aspect of § 3553(a) – defendant’s status as sole custodial parent of his two small children. Family ties and responsibilities are a discouraged factor under the guidelines, see U.S.S.G. § 5H1.6, and under the facts of this case, defendant would not have been entitled to a downward departure. The record did not support a variance of this magnitude. U.S. v. Hampton, 441 F.3d 284 (4th Cir. 2006).
4th Circuit rejects family circumstances departure where defendant’s care was not “irreplaceable.” (690) The district court departed downward by four levels based on defendant’s family responsibilities. She presented evidence that she was the primary caregiver for her chronically ill husband. The Fourth Circuit reversed, since the record failed to demonstrate that the care defendant provided to her husband was “irreplaceable.” To the contrary, defendant had a strong family and community support network, evidenced by the testimony of her daughter and granddaughter, and by affidavits of her son-in-law and various friends. Defendant’s son-in-law stated by affidavit that both defendant and her husband were welcome to live with him and his wife “if the need arises.” In sentencing defendant to five months of imprisonment, the court acknowledged defendant was able to rely on others to care for her husband. The departure was an abuse of discretion. Elliott v. U.S., 332 F.3d 753 (4th Cir. 2003).
4th Circuit agrees that status as single custodial parent did not justify downward departure. (690) Defendant argued that the district court mistakenly believed it lacked authority to depart based on his family responsibilities. The 4th Circuit found that the district court recognized its discretion to depart downward, but concluded that under circuit precedent, defendant’s status as a single, custodial parent was not an extraordinary circumstance justifying a downward departure. The district court did not err in applying § 5H1.6. U.S. v. Weddle, 30 F.3d 532 (4th Cir. 1994), superseded on other grounds by guideline as stated in U.S. v. Riggs, 370 F.3d 382 (4th Cir. 2004).
4th Circuit reverses downward departure based on family responsibilities. (690) Defendant pled guilty to sexual exploitation of children. Although he had a guideline range of 87 to 108 months, the district court departed downward and sentenced him to 12 months, based upon the detrimental effect a lengthy incarceration would have on his family. Defendant had been a member of a “stable family unit” for 18 years, and his wife had recently been laid off from her job. Defendant’s children needed him for “guidance, family life and financial support.” Thus, the district court concluded that an extended period of incarceration would lead to the destruction of the family. The 4th Circuit reversed, holding that defendant’s situation was not sufficiently extraordinary to justify a downward departure based upon his family circumstances. The imposition of prison sentences normally disrupts spousal and parental relationships. Judge Stamp dissented, believing that the district court’s conclusion that defendant’s situation was extraordinary was not clearly erroneous. U.S. v. Bell, 974 F.2d 537 (4th Cir. 1992), appeal after remand, 5 F.3d 64 (4th Cir. 1993).
4th Circuit reverses downward departure based on drug dealer’s charitable contributions and community relations. (690) A non-profit organization argued for a downward departure because of defendant’s work history, his family ties and responsibilities, and his extensive contributions to a local town. The district court departed downward “for matters that [defendant] has done in a positive stance in his community and in his past life.” The 4th Circuit reversed, finding that personal factors are “ordinarily irrelevant” in sentencing, and “to depart downward because a successful drug dealer has made charitable contributions to his community is to distort the purpose of the guidelines.” A defendant’s socioeconomic status, a factor correlated to the amount of charitable contributions, is not relevant to sentencing. Commu-nity ties are not ordinarily relevant, but may be considered when probation is an option. The judicial system cannot reward defendant because he was a successful and prosperous drug dealer rather than an unsuccessful one. U.S. v. McHan, 920 F.2d 244 (4th Cir. 1990).
4th Circuit reverses downward departure for family ties although defendant was sole custodial parent. (690) The district court departed downward because defendant was the sole, custodial parent of two children who would be forced to live with strangers if she were imprisoned. The district court held that such a separation would have a devastating impact on the children, and therefore imposed probation in lieu of the 10 month prison term mandated by the guidelines. The government appealed and the 4th Circuit reversed, ruling that the district court’s finding that the situation was extraordinary was clearly erroneous. The court wrote that a sole custodial parent is not a societal rarity, and the separation caused by imprisonment was not extraordinary. “[The defendant] has shown nothing more than that which innumerable parents could no doubt establish: namely, that the imposition of prison sentences normally disrupts spousal and parental relationships. U.S. v. Brand, 907 F.2d 31 (4th Cir. 1990).
5th Circuit allows downward departure in civil rights case but reverses as to extent. (690) Defendant was a Mississippi police chief who was convicted of using excessive force during an arrest in violation of 18 U.S.C. §242. At sentencing, the district judge departed downward under § 5K2.10 because “the victim’s wrongful conduct contributed significantly to provoking the offense behavior.” The victim had kicked at the officer repeatedly after being handcuffed and placed in the patrol car. On appeal, the Fifth Circuit relied on Koon v. U.S., 518 U.S. 81 (1996) to hold that the victim’s conduct was a valid basis for departure here. The court noted that the victim had pleaded guilty to resisting arrest. Moreover, the Fifth Circuit held that the district court could properly consider the police chief’s “unblemished record” as a police officer even though, under § 5H1.5, a defendant’s employment record is not ordinarily relevant. Nevertheless, the panel voted 2-1 to remand the case for resentencing as to the extent of the downward departure because the sentence was only 15% of the guideline minimum. U.S. v. Harris, 293 F.3d 863 (5th Cir. 2002).
5th Circuit reverses departure for physical conditions, military service, employment and disagreement with guidelines. (690) 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 impair-ment 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 finds nothing extraordinary about family circumstances to warrant departure. (690) Defendant argued that the district court should have taken into account his extraordinary family circumstances and departed downward. The Fifth Circuit disagreed, finding defendant had “shown nothing more than that which innumerable defendants could no doubt establish: namely, that the imposition of prison sentences normally disrupts . . . parental relationships.” U.S. v. Harrington, 82 F.3d 83 (5th Cir. 1996).
5th Circuit says defendant’s status as single mother of two young children did not warrant departure. (690) The district court departed below a mandatory minimum 10 year sentence under § H1.6 because defendant’s two children were under five and were being cared for by their 65-year-old great-grandmother. The 5th Circuit rejected the departure for two reasons. First, a absent a government motion, the court lacked authority to depart below the statutory minimum. Second, defendant’s status as a single mother of two children was not “extraordinary.” U.S. v. Brown, 29 F.3d 953 (5th Cir. 1994).
5th Circuit says first-time offender, community service, employment record and potential for victimization are not departure grounds. (690) The guidelines specifically reject first-time offender status as a ground for a downward departure. First-time offenders are assigned criminal history category I, which adequately reflects the level of recidivism. Sections 5H1.5 and 5H1.6 also specifically reject community service and employment record as grounds for departure. Moreover, there is no authority in the 5th Circuit for departing based on the potential for victimization. U.S. v. Ardoin, 19 F.3d 177 (5th Cir. 1994).
5th Circuit reverses downward departure based upon community ties and defendant’s redeeming characteristics. (690) The district court departed downward because of defendant’s ties to the community and his history of community service. The judge also departed because he found that defendant was a “worthwhile person” with redeeming characteristics. The 5th Circuit reversed, ruling that neither of these was adequate grounds for a downward departure. Guideline section 5H1.6 provides that community ties are generally irrelevant to sentencing. The factors enumerated may supply a basis for determining what term of imprisonment is appropriate within the applicable guideline range, but they cannot be used to depart below the guideline range. Even if the judge thought defendant was a worthwhile person, Congress intended to eliminate these personal factors from sentencing. U.S. v. O’Brien, 950 F.2d 969 (5th Cir. 1991).
6th Circuit upholds refusal to grant departure or variance based on family circumstances. (690) Defendant challenged the district court’s denial of his motion for a downward departure or a variance based on “exceptional family circumstances.” The Sixth Circuit found no grounds for reversal. Even after Booker, a district court’s refusal to depart downward is not reviewable unless the district court incorrectly believed that it lacked discretion to depart downward. Here, the district court understood its discretion, so its decision was not reviewable. In addition, the court’s refusal to grant a downward variance did not make the sentence unreasonable. The court reasonably concluded that defendant’s absence from his family would be mitigated by his wife’s continued presence at home and the family’s continued receipt of substantial healthcare, housing and sustenance benefits. The sentence was also supported by the Sentencing Commission’s policy statement in § 5H1.6 regarding the relevance of family circumstances in sentencing. See U.S. v. Carter, 510 F.3d 593 (6th Cir. 2007).
6th Circuit holds that five years’ probation for possessing unregistered gun was reasonable. (690) While investigating a domestic dispute, a deputy found four firearms in defendant’s vehicle, including a shotgun with a barrel length of about eight inches. He pled guilty to possessing an unregistered firearm having a barrel length of less than 18 inches, in violation of 26 U.S.C. § 5861 (d). His recommended guideline range was 27-33 months. While the statutory maximum was 10 years, defendant was eligible for probation, 18 U.S.C. § 3561(c)(1). The district court granted a downward variance, sentencing defendant to five years’ probation, including one year of home detention. The court also required defendant to undergo mental health sentencing, anger management, and drug and alcohol testing. The variance was based on defendant’s stated remorse for his actions and the effect incarceration would have on defendant’s older son. The Sixth Circuit found that the sentence was both procedurally and substantively reasonable. The court’s recitation and consideration of the § 3553(a) factors was sufficiently detailed to reflect the considerations listed in § 3553(a), even if the court did not engage “in a ritualistic incantation of the § 3553 (a) factors.” As for the substantive reasonableness, the case was indistinguishable from the circumstances presented in U.S. v. Husein, 478 F.3d 318 (6th Cir. 2007) (court approved 99.91% variance based on extraordinary family circumstances). Defendant’s older son received a heart transplant in 2002, and defendant shared the burden of providing constant care for him. Further, defendant demonstrated remorse for his crime. U.S. v. Baker, 502 F.3d 465 (6th Cir. 2007).
6th Circuit affirms departure to one-day sentence where defendant was “irreplaceable” to her family. (690) Defendant participated in two transactions involving the sale of ecstasy, although she was neither the buyer nor the seller in either transaction. Although her guideline range was 37-46 months’ imprisonment, the district court departed downward, based on extraordinary family circumstances, to a sentence of one day, plus three years’ of supervised release. Defendant lived with her parents and three minor siblings. Defendant’s father was totally incapacitated due to a recent stroke, required around-the-clock care, and defendant and her mother provided for all of the family’s financial and other needs. Defendant and her mother alternated working shifts at a factory to insure than an adult was always home to attend to the father and the minor children. In addition, defendant was the only member of the household with a valid driver’s license. The Sixth Circuit affirmed the one-day sentence, finding the departure both procedurally and substantively reasonable. The mere possibility of potential alternative care was not sufficient to undermine a claim of irreplaceability. The court considered five of the six relevant § 3553(a) factors. The case was distinguishable from U.S. v. Davis, cert. granted, vacated, Davis v. U.S., 552 U.S. 1088, 128 S.Ct. 856 (2008), 458 F.3d 491 (7th Cir. 2006), which rejected a one-day sentence as unreasonable. The sole purpose of that departure was leniency. Here, the purpose was to allow defendant to provide assistance to her father. Any time spent in jail necessarily defeated that purpose. Defendant was also a far “more worthy defendant” than the one in Davis. U.S. v. Husein, 478 F.3d 318 (6th Cir. 2007).
6th Circuit reverses downward departure for good behavior, loss of reputation and disparity. (690) Defendant pled guilty to causing the interstate shipment of adulterated orange juice. After two appeals, during a third sentencing hearing, the district court departed to a sentence of 12 months’ home confinement. It based the departure primarily on defendant’s record of community service, but also cited his exemplary behavior during the pendency of his appeal, its desire for proportionality in sentencing co-conspirators, and defendant’s loss of reputation and of his business. The government did not challenge the court’s reliance on defendant’s charitable works, but appealed the other grounds. The Sixth Circuit reversed. Defendant’s good behavior during his appeal was an impermissible ground for departure. His good behavior was nothing more than refraining from committing further crimes. His loss of his reputation and business were expected consequences of his fraud and did not take his case out of the heartland. Finally, the guidelines do not allow a downward departure for a lesser role in the offense, because the guidelines account for that under § 3B1.1 and § 3B1.2. U.S. v. Crouse, 145 F.3d 786 (6th Cir. 1998).
6th Circuit holds refusal to depart from guidelines for family ties and responsibilities was not abuse of discretion. (690) Defendant argued that the district court should have departed from the guidelines because she had minor children to care for and her sentence was almost as high as her more culpable son. The 6th Circuit questioned whether a trial court’s refusal to depart from the guidelines “is subject to appellate review at all.” However it declined to decide the question, noting that § 5H1.6 of the guidelines provides that family ties and responsibilities are “ordinarily not relevant” in determining whether to depart. The court found no abuse of discretion in imposing a 45-month sentence even if family ties were relevant. The harshness of the defendant’s sentence compared to that of her son’s was not grounds for vacating the sentence given the district court’s wide discretion in sentencing. U.S. v. Sailes, 872 F.2d 735 (6th Cir. 1989).
7th Circuit holds that court adequately considered defendant’s family circumstances. (690) Defendant and her boyfriend stole debit-card information from customers of defendant’s nail salon, and used that information to make unauthorized ATM withdrawals. The district court sentenced her to 36 months, five months below the guideline range. She argued that the court did not consider the adverse effect on her young daughter. See § 5H1.6, Note 1(B)(ii) (encouraging courts to consider loss of caretaking). The Seventh Circuit acknowledged that defendant’s circumstances were unusual in that both parents faced prison time, and the court’s discussion about this issue was “bare-bones.” However, the district court did recommend that defendant serve her below-range prison term “as close as possible to her family” and in a “residential reentry center” (a halfway house). These recommendations might allow for outside visitation opportunities. The court said enough to satisfy the appellate court that it considered defendant’s family circumstances. U.S. v. Thi, 692 F.3d 571 (7th Cir. 2012).
7th Circuit reverses where court failed to consider family circumstances. (690) Defendant argued that his incarceration imposed an extraordinary hardship on his family. His wife testified that the couple’s adopted daughter had a compromised immune system and was particularly vulnerable to illness, making daycare implausible. Because defendant worked from home, he had been able to look after their daughter, and she described her attempt to find suitable care since defendant’s incarceration. The district court stated that this was unfortunate, but defendant’s absence was “based on conduct [he] chose to commit. And I expressly reject that as a consideration that should somehow mitigate his sentence.” The Seventh Circuit reversed, noting that family hardship is always the result of the defendant’s criminal conduct, so that cannot be dispositive. When a defendant seeks a lower sentence based on extraordinary family circumstances, the relevant inquiry is the effect of the defendant’s absence on his family members. The court was required to consider defendant’s family circumstances and provide an adequate analysis of how much weight, if any, it should command. The fact that the consequences of incarceration were attributable to his own misconduct is not dispositive. U.S. v. Schroeder, 536 F.3d 746 (7th Cir. 2008).
7th Circuit cannot review where court found family circumstances not extraordinary. (690) The district court rejected defendant’s request for a downward departure based on his family responsibilities, stating that defendant had not shown that his situation was anything but typical. The Seventh Circuit held that it lacked jurisdiction to review the refusal to depart. Under § 5H1.6, family ties and responsibilities are not ordinarily relevant in determining the defendant’s sentence. However, unusual and extraordinary family circumstances may justify a downward departure. Here, the court understood it had the power to grant a downward departure for family responsibilities, specifically addressed the request and refused to grant it. Because the decision was within the court’s discretion, and not in violation of the law or an incorrect application of the guidelines, it was not reviewable. U.S. v. Johnson, 227 F.3d 807 (7th Cir. 2000).
7th Circuit will not review refusal to make family circumstances departure. (690) Defendant argued that the district court erred by denying her motion for a § 5H1.6 departure based on her “extraordinary family circumstances.” Defendant had a 1 1/2 year-old child, and, at the time of sentencing, was eight months pregnant. She also cared for two step-children, ages seven and five. The district court acknowledged that sentencing defendant to prison would impose hardship on her family because of her responsibilities, but also noted that a person should not expect to avoid incarceration simply because he or she comes from a large family. The Seventh Circuit refused to review the matter, since it was clear that the judge understood that he had the power to order a downward departure if the facts warranted it, and that he considered all of the issues that the defendant thought relevant. Because defendant had no legal challenge to the district court’s interpretation of the guidelines, there was nothing to review. U.S. v. Guy, 174 F.3d 859 (7th Cir. 1999).
7th Circuit affirms family circumstances departure even though facts not “compelling.” (690) Defendant was convicted of crack cocaine charges. He and his common-law wife had lived together for over 13 years and had three children, ages 6,7, and 11. The wife worked at a grocery store and defendant was employed by an upholstery company. Due to the flexibility of his work schedule, defendant cared for the children after school and helped them with their homework. He also spent time every day with his Down Syndrome brother. The wife testified that if defendant went to jail, she might have to move to public housing and receive welfare. The Seventh Circuit upheld a family circumstances departure. A district judge may have a better feel for what is or is not unusual or extraordinary. A district court’s finding of extraordinary family circumstances is entitled to considerable respect on appeal. Although this case did not involve the most “compelling” set of facts, the appellate court refused to second-guess the district judge’s decision. U.S. v. Owens, 145 F.3d 923 (7th Cir. 1998).
7th Circuit upholds refusal to depart for family, employment and remorse. (690) Defendant argued that the district court erred in failing to consider the exceptional nature of his circumstances including his family, employment, remorse and acceptance of responsibility. The Seventh Circuit found that the district court properly understood its discretion to depart. Family and employment considerations are “discouraged” factors and therefore only warrant a departure in exceptional circumstances. Defendant’s family circumstances were not exceptional. Although defendant’s wife and three children would suffer during his incarceration, his children had a mother to look after them and loving grandparents to help her. Although the nature of defendant’s employment was strikingly meritorious (working with disabled children), the district court’s decision, was based on the correct standards, and was not reviewable. Defendant already received a 3-level reduction for acceptance of responsibility. The court did not mistakenly join remorse with acceptance of responsibility. The court refused to depart simply because it felt defendant’s remorse did not deserve an additional departure, not because it believed that departure was impermissible. U.S. v. Carter, 122 F.3d 469 (7th Cir. 1997).
7th Circuit authorizes downward departure for extraordinary family circumstances. (690) The district court initially departed downward based on defendant’s extraordinary family circumstances. On reconsideration, however, the court concluded that U.S. v. Thomas, 930 F.2d 526 (7th Cir. 1991) (Thomas I), prohibited a departure on that ground. Here, the 7th Circuit ruled that the holding in Thomas I that extraordinary family circumstances never warrant a downward departure was no longer valid. The language in § 5H1.6 relied upon by Thomas I was deleted by amendments effective November 1991. In U.S. v. Thomas, 11 F.3d 732 (7th Cir. 1993) (Thomas II), the court noted that the amendments did not affect the primary holding in Thomas I concerning departures from mandatory minimum sentences. But it suggested that the amendments might affect the alternative basis of decision—that departures based on family circumstances are forbidden. Other circuits are unanimous in finding that § 5H1.6 permits departures in extraordinary cases. On remand, the district court should explain why defendant’s case is extraordinary. In general, disintegration of existing family life is insufficient to warrant a departure, since that is expected when a family member is incarcerated. U.S. v. Canoy, 38 F.3d 893 (7th Cir. 1994).
7th Circuit rejects family responsibilities as grounds for departure. (690) The district court departed downward from a mandatory minimum 10-year term. Although the departure was based in part upon defendant’s substantial assistance to authorities, the district court also took into account defendant’s extremely burdensome family responsibilities. The 7th Circuit rejected this as grounds for departure. Guideline § 5H1.6 does not authorize a court to depart downward when a judge finds a defendant’s family circumstances to be particularly compelling. Section 5H1.6 states that family responsibilities are relevant in determining whether to impose restitution and fines, and if probation is an option, whether probation is appropriate. There is nothing that suggests this list is illustrative, rather than exhaustive. Since the district court could not determine what portion of the departure was based upon family responsibilities, the case was remanded. U.S. v. Thomas, 930 F.2d 526 (7th Cir. 1991).
7th Circuit upholds reliance on family ties to sentence within the guideline range. (690) Defendant argued that in choosing a sentence within the guideline range, the district court improperly relied on family ties, which is improper under U.S.S.G. 5H1.5. The 7th Circuit rejected the argument, noting that 5H1.5 only prohibits reliance on family ties as a basis for departure, not as a basis for choosing a sentence within the guideline range. On the other hand, U.S.S.G. 1B1.4 states that in determining the sentence to impose within the guideline range, the court may consider any information “unless otherwise prohibited by law.” See 18 U.S.C. § 3661. Thus reliance on family ties was proper, and a “sentence within the correct guideline range that was not imposed in violation of the law must be affirmed.” U.S. v. Guerrero, 894 F.2d 261 (7th Cir. 1990).
8th Circuit upholds refusal to grant downward departure for family circumstances. (690) Defendant sought a sentence that would involve zero incarceration through a downward departure under § 5H1.6, or alternatively, a variance under § 3553(a). He argued that his son, who suffered from muscular dystrophy, required around-the-clock care that defendant’s wife could not provide by herself. The Eighth Circuit refused to review the district court’s refusal to grant a downward departure based on family circumstances. The district court neither had an unconstitutional motive nor erroneously believed it was without authority to grant a departure under § 5H1.6. Therefore, its refusal to depart was not reviewable. The court did not commit procedural error by failing to consider defendant’s family circumstances as a relevant factor under § 3553(a). The record reflected that the court clearly considered the son’s medical condition and defendant’s role as a caretaker. It credited the testimony of the son’s doctor that the son could be cared for by one-person full-time with occasional assistance from others. U.S. v. Underwood, 639 F.3d 1111 (8th Cir. 2011).
8th Circuit upholds probation for felon in possession, given family circumstances. (690) In 2005, defendant’s then-eight-year old son called defendant to tell her that his 14-year old sister was bleeding. Defendant returned home to find her daughter had shot herself. The daughter died several days later. Defendant had taken the gun from an ex-boyfriend in 2003, because he was an alcoholic, and kept it high on a shelf in her closet. Defendant pled guilty to being a felon in possession of a firearm. Her advisory guideline range was 37-46 months, but the district court sentenced her to five years’ probation with six months of community confinement. The court based the variance on its concern for the welfare of defendant’s nine-year-old son. The boy suffered from numerous disabilities that required defendant’s day-to-day presence, and if he was separated from her, the boy would suffer a setback in his overall development. The court also noted that defendant was not on trial for her daughter’s death, that she was already punished by the loss of her daughter, and that there was no need for incarceration to protect the public. The Eighth Circuit ruled that the sentence was not substantively unreasonable in light of § 3553(a) and the Supreme Court’s recent decision in Gall. The circumstances described here were not materially different from the sort of “compelling family circumstances” that the Supreme Court indicated in Gall would justify probation for a drug trafficker with a similar advisory guideline range. U.S. v. Lehmann, 513 F.3d 805 (8th Cir. 2008).
8th Circuit holds that 50% variance below guideline range for felon in possession was unreasonable. (690) Defendant was convicted of being a felon in possession of a firearm. The advisory guideline range was 360 months to life (defendant qualified both as a career offender and an armed career criminal), but the district court imposed a sentence of 180 months, the statutory minimum. The court found that 180 months was “a long period of time in anybody’s book,” and doubted that anyone would be “more deterred by a 360-month sentence than a 180 month sentence.” The court also cited defendant’s young age (22) and was concerned that a longer sentence would undermine his chance at rehabilitation. The Eighth Circuit held that the sentence, which was a 50 percent reduction from the bottom of the guideline range, was unreasonable. Absent exceptional facts, a sentence “dramatically lower than that recommended by the guidelines is an abuse of the district court’s discretion.” The district court’s analysis gave insufficient weight to the statutory objective of avoiding unwarranted sentence disparities. 18 U.S.C. § 3553(a)(6). Congress has specified that career offender should be sentenced at or near the statutory maximum, 28 U.S.C. § 944(h), which in this case was life imprisonment. In addition, the primary reason for the variance, defendant’s age, “is not ordinarily relevant in determining whether a departure is warranted”. § 5H1.1. Given this, the statutory minimum sentence of 180 months was unreasonable. U.S. v. Maloney, 466 F.3d 663 (8th Cir. 2006).
8th Circuit upholds guideline sentence for assault as reasonable. (690) Defendant received a 40-month guideline sentence for his assault convictions. He argued that the court erred both by not departing from the guidelines and by giving an unreasonable sentence. The Eighth Circuit found no error in the refusal to depart, and found the guideline sentence reasonable. The district court did not abuse its discretion by inappropriately considering rehabilitation as a sentencing factor. The panel rejected defendant’s claim that the district court failed to adequately consider defendant’s family responsibilities. Although some cases have upheld downward departures based in part on family responsibilities, there are no cases in which courts have remanded for failure to adequately consider family responsibilities. Moreover, defendant did not claim his family required the substantial level of care and monitoring that situations involving downward departures have demanded. Defendant’s mother had been raising the children with defendant and had been caring for them since defendant’s arrest. U.S. v. Tobacco, 428 F.3d 1148 (8th Cir. 2005).
8th Circuit upholds family circumstances departure for defendant responsible for caring for autistic child. (690) Defendant was married and had four children, ranging in age from ten to two. One son suffered from a variety of developmental disorders, including an autistic spectrum disorder. The Eighth Circuit upheld a downward departure based on defendant’s exceptional family circumstances. The care of defendant’s child was “intense and hands-on.” Although defendant’s wife cared for the son during the day while defendant was at work, defendant’s “nighttime routine with his son [is] a key component of [his son’s] care. There was evidence that “the slightest change” in his daily routine could cause him to become “extremely upset and violent.” The panel agreed that a long-term departure of defendant from his son’s life would cause an extreme setback for the boy and the rest of the family. “When one parent is critical to a child’s well-being, as in this case, that qualifies as an exceptional circumstance justifying a downward departure.” U.S. v. Spero, 382 F.3d 803 (8th Cir. 2004).
8th Circuit holds that perjury at trial showed that post-offense rehabilitation was insufficient for departure. (690) Defendant distributed cocaine from June 1997 to October 1998. When his wife learned he was using cocaine, she gave him an ultimatum to stop using drugs. Shortly thereafter, defendant quit using cocaine and voluntarily separated himself from the local drug scene. He was indicted and arrested in April 2002. At trial, he committed perjury by lying about his relationship with a number of witnesses who testified against him. The district court departed downward under § 5K2.0, citing a number of discouraged factors, including defendant’s relationship with his wife, educational achievement, professional success, and community status, which in combination with his voluntary drug rehabilitation, removed his case from the heartland. The Eighth Circuit reversed. Although defendant changed his lifestyle by ending his drug use, his false testimony at trial showed that his post-offense rehabilitation was not sufficient to support a downward departure. The rest of defendant’s circumstances, by themselves, were not of a kind or degree to justify a departure. U.S. v. Willey, 350 F.3d 736 (8th Cir. 2003).
8th Circuit holds that care of elderly mother not sufficient to warrant downward departure. (690) Defendant argued that he should have received a downward departure because, in part, of his extensive family responsibilities, specifically, caring for an elderly mother. Guideline § 5H1.6 makes clear that family ties and responsibilities are not ordinarily relevant to determining whether a sentence is within the applicable guideline range. Because family responsibilities are a discourage factor, departures are to be used only in “extraordinary circumstances.” U.S. v. Bieri, 21 F.3d 811, 818 (8th Cir. 1994). The Eighth Circuit found that the district court correctly ruled as a matter of law that defendant’s family responsibilities did not justify a departure. Counsel gave no indication and offered no evidence that defendant’s mother’s condition was life-threatening or that defendant’s care was a necessary part of her medical treatment. U.S. v. VanHouten, 307 F.3d 693 (8th Cir. 2002).
8th Circuit rejects downward departure based on parental influence. (690) Defendant and his father operated a cash rental Ponzi scheme in which investors lost millions of dollars. The district court found that defendant’s family situation was outside the heartland because he had a significant relationship with his preschool-aged children, his wife had advanced rheumatoid arthritis, and defendant’s “extraordinary loyalty, if not blind trust,” in his father. The Eighth Circuit reversed the downward departure, concluding that defendant did not show his family circumstances were substantially different from those facing families of any other defendant. Although a parent’s unique position vis-à-vis his or her child may result in an ability to wield significant influence over that child, parental influence is most appropriately analyzed under § 5K2.12, which permits departure for coercion and duress. U.S. v. Contreras, 180 F.3d 1204 (10th Cir. 1999). Absent serious threats of physical injury or substantial damage to property, coercion is a discouraged basis for departure and must be present in some unusual way to warrant departure. Here, the district court did not specify any facts that would support a finding of an exceptional degree of coercion. Defendant was educated, with a degree in business administration and finance. He had full knowledge and understanding of the nature of the fraud, and actively participated in it for financial profit. U.S. v. King, 280 F.3d 886 (8th Cir. 2002).
8th Circuit cannot review refusal to grant family circumstances departure. (690) Defendant argued that he deserved a departure under § 5H1.6 for his extraordinary family circumstances. He contended that he was the sole or primary provider for his family, that he was raising his teenage sons by himself, and that, after his arrest, his sons were forced to return to Mexico to live with their mother, where their “living conditions are quite desperate.” The Eighth Circuit found it had no authority to review the matter. The district court was aware of its authority to depart on the basis of extraordinary family circumstances, but simply decided in its discretion not to do so. Such a decision is unreviewable. “Serious crime often has lamentable consequences, and not for the defendant only.” U.S. v. Bahena, 223 F.3d 797 (8th Cir. 2000).
8th Circuit reverses downward departure for community service. (690) Defendant, the owner of a cattle brokerage operation, was convicted of bank fraud in connection with a check kiting scheme. Impressed by the large number of letters from defendant’s friends and neighbors, the district court departed downward based on defendant’s “longstanding record of exemplary service” to his community. The Eighth Circuit held that the community service departure was an abuse of discretion. The letters conveyed 3 themes — they praised defendant’s business acumen, conveyed concern that defendant’s imprisonment might hurt the town’s economy, and recited various services defendant provided to his community. However, defendant’s business acumen was questionable — he kited checks to hide the fact that he had brought financial ruin to his family business. The fact that his imprisonment might cause economic injury to innocent third parties is a discouraged basis for departure. The mere fact that a business faces failure is not by itself unusual enough to warrant departure. Finally, although defendant’s service to his community was commendable, it was not exceptional nor out of the ordinary for someone with his income in a small town. Judge Arnold dissented. U.S. v. Morken, 133 F.3d 628 (8th Cir. 1998).
8th Circuit rejects family circumstances departure. (690) Defendant was convicted of second-degree murder within Indian country. The district court departed downward under § 5K2.0 based on defendant’s record of steady employment and maintenance of family ties and responsibilities despite the difficulties of life on the reservation. The court also found defendant’s conduct was aberrant behavior warranting departure. In U.S. v. Weise, 89 F.3d 502 (8th Cir. 1996), the Eighth Circuit reversed, finding the record inadequate to support a family ties departure. On remand, the district court held an evidentiary hearing and again departed downward, finding defendant’s conduct was aberrant behavior. The Eighth Circuit again reversed, holding that its previous opinion foreclosed the aberrant behavior departure and the district court was not free to revisit this issue. The family circumstances relied on by the district court were not sufficiently unusual to warrant a departure. The record did not show anything about the reservation environment that skewed defendant’s opportunities in a way strikingly different from families of similar means and circumstances living elsewhere. U.S. v. Weise, 128 F.3d 672 (8th Cir. 1997).
8th Circuit holds that care for wife with severe mental health problems presented extraordinary family situation. (690) The district court departed downward based, in part, on the fact that defendant’s wife had severe mental health problems. The 8th Circuit agreed that defendant’s “truly exceptional family circumstances” made this an appropriate case for a downward departure. Defendant’s wife suffered severe psychiatric problems which were potentially life threatening. Defendant was actively involved in her care, and the wife’s doctor characterized defendant’s participation as an “irreplaceable” part of her treatment. The doctor believed that the wife would not do well if separated from the aid of her spouse, and had grave clinical concerns that her medical treatment could be safely managed without his presence. U.S. v. Haversat, 22 F.3d 790 (8th Cir. 1994).
8th Circuit says comments showed judge recognized departure was not justified. (690) Defendants argued that the district court erroneously believed it lacked authority to depart downward based on their family circumstances. The judge stated that if it were up to him, he would place defendants on probation, but that “under the facts of this case . . . I don’t have any authority to depart downward from the guidelines.” The 8th Circuit found this statement did not demonstrate the judge’s belief that he was barred as a matter of law from departing. Rather, the judge’s comments acknowledged that a downward departure was not justified. Moreover, even if the court did believe it had no authority to depart, the refusal to depart was not erroneous. Although the incarceration of both parents of two small children was troubling, it was no more extraordinary than the incarceration of a single parent, for which a downward departure is not permitted. U.S. v. Bieri, 21 F.3d 811 (8th Cir. 1994).
8th Circuit states that being a single mother of an infant does not entitle a defendant to a departure. (690) Defendant pled guilty to making false statements in application for a bank loan, and appealed her sentence, claiming in part that the district court should have departed because she was a single mother of an infant. She asserted that the Commission did not adequately address the issue of family ties and responsibilities. The 8th Circuit disagreed, pointing to § 5H1.6, which states that family ties and responsi-bilities are ordinarily not relevant in determining whether departure is appropriate. In any event, the 8th Circuit found that the sentencing court’s comments indicated that it had exercised its discretion not to depart on those grounds, and thus found that it lacked jurisdiction to consider the merits of the appeal. U.S. v. Johnson, 908 F.2d 396 (8th Cir. 1990) No. 89-5489.
8th Circuit finds that neither military nor community service justified downward departure. (690) The district court departed downward because of the defendant’s stable family life, his commitment to “assisting young people in various aspects of their community life” and his satisfactory military service. The court also observed that this was the defendant’s first offense. The 8th Circuit reversed, holding that the defendant’s supportive family relationships and the fact that he coached young athletes in his community did not distinguish him from other defendants who could make the same showing, nor did his lack of a criminal record justify a downward departure. However, the court noted that the guidelines are silent about military service, and therefore military service “could constitute grounds for departure in an unusual case.” Here however, the defendant’s military enlistment consisted of 11 years of duty within the United States, mainly as a recruiter. The court found this insufficient to distinguish him from other defendants. U.S. v. Neil, 903 F.2d 564 (8th Cir. 1990).
8th Circuit upholds downward departure based on employment record and efforts to overcome adverse environment. (690) Two of the district court’s stated reasons for downward departure — intoxication and lack of a prior criminal record — were not appropriate reasons for deviating from the guideline range, see U.S.S.G. § 5H1.4 and 5H1.8. However, the 8th Circuit held that two additional reasons justified the downward departure. Specifically, the district court noted the defendant’s “excellent employment record” and his “consistent efforts to overcome the adverse environment of the Pine Ridge Reservation.” While these are not ordinarily relevant in departing from the guidelines (See U.S.S.G. sec-tions 5H1.5 and 5H1.6), the court ruled that the mitigating circumstances in defendant’s case were of a magnitude “not adequately taken into consideration by the guidelines.” U.S. v. Big Crow, 898 F.2d 1326 (8th Cir. 1990).
9th Circuit says that family ties may warrant non-guidelines sentence even if they do not support departure. (690) Under § 5H1.6, family ties and responsibilities are not ordinarily relevant in determining whether a departure is warranted. The district court departed downward in part because defendant was the sole parent of her child and had an unusually strong relationship with the child. The Ninth Circuit upheld the departure, but noted that even if the court erred in departing, a court may after Booker now consider family ties and responsibilities as part of the “history and characteristics” of the defendant under 18 U.S.C. § 3553(a)(1). Balancing that factor against the other factors under § 3553(a), the court held that the defendant’s sentence was reasonable. U.S. v. Menyweather, 447 F.3d 625 (9th Cir. 2005), implied overruling recognized by U.S. v. Munoz-Camarena, 621 F.3d 967 (9th Cir. 2010).
9th Circuit upholds departure for sole caretaker of sick spouse. (690) At sentencing, defendant, who had been convicted of tax offenses, presented evidence that his wife had renal cancer resulting in removal of one kidney and causing fatigue, dizziness, and nausea. Psychological testimony showed that the wife was depressed and was in danger of committing suicide if she lost her husband. Defendant also presented evidence that he was the only person capable of caring for his wife. The district court departed downward six levels based on defendant’s indispensable role in caring for his wife. The Ninth Circuit affirmed, agreeing that defendant’s showing that he was sole caretaker for his wife constituted extraordinary family circumstances sufficient to overcome the presumption against departure in § 5H1.6. U.S. v. Leon, 341 F.3d 928 (9th Cir. 2003).
9th Circuit affirms four-level departure where death of defendant’s husband left son without a custodial parent. (690) The district court departed downward by four levels because the death of defendant’s common law husband left her son without a custodial parent. On appeal, the Ninth Circuit acknowledged that guideline § 5H1.6 “discourages” a departure based on family ties, and therefore “the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present.” U.S. v. Klimavicius-Viloria, 144 F.3d 1249, 1267 (9th Cir. 1998). Nevertheless, because district courts are “particularly suited” to determine whether a given factor makes a case unusual, the panel said it would not “second guess” the district court’s determination that this case involved an unusual family situation. There was no abuse of discretion. U.S. v. Aguirre, 214 F.3d 1122 (9th Cir. 2000).
9th Circuit upholds summary denial of departure based on family responsibilities. (690) Defendant argued that in denying his request for a downward departure under § 5H1.6, the district court should have considered whether such a departure was encouraged or discouraged by the guidelines. Koon v. U.S., 518 U.S. 81 (1996). On its face, § 5H1.6 discourages such a departure. When a special factor is discouraged “the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present.” Koon, 116 S.Ct. at 2045. Although the district court did not specifically discuss this factor, it did state concerning all of the defendant’s requests: “I’ve considered them and I’ve exercised the Court’s discretion, and the Court declines to depart.” The Ninth Circuit held that this was sufficient. U.S. v. Klimavicius-Viloria, 144 F.3d 1249 (9th Cir. 1998).
9th Circuit dismisses appeal of extent of departure despite claim that court believed it could not depart. (690) The district court departed downward for extraordinary family circumstances, but not to the extent that defendant would have liked. Defendant attempted to characterize her appeal of the extent of the downward departure as an appeal of the district court’s alleged erroneous belief that it lacked discretion to depart downward. The 9th Circuit ruled that it had no jurisdiction to entertain her appeal since she was essentially challenging the extent of the downward departure. Nothing in the record indicated that the district court believed it lacked discretion to depart for the reasons offered by defendant. U.S. v. Riggins, 40 F.3d 1055 (9th Cir. 1994).
9th Circuit rejects departure based on fear that defendant’s children “would be placed at potential risk.” (690) The first reason the district court gave for departing was that defendant had two small children who “would be placed at potential risk,” if defendant went to jail. The 9th Circuit held this was improper, noting that under section 5H1.5, family responsibilities “are not ordinarily relevant in determining” whether to depart. Judge Tang dissented, arguing that the combination of factors here made the departure not clearly erroneous. U.S. v. Miller, 991 F.2d 552 (9th Cir. 1993).
9th Circuit holds that defendant’s character, community and family ties may be considered in sentencing within the guideline range. (690) Before sentencing, the district judge said he had reviewed four letters written by defendant’s friends and associates on his behalf. The judge stated that under guideline § 5H1.6 he had “no choice” but to ignore the letters. The 9th Circuit disagreed, holding that “a dis-trict court, may, but need not, consider the defendant’s character as described in letters to the court or probation office as a basis for finding a sentence within the guideline range.” Section 5H1.6 merely limits a court’s ability to depart from the guidelines based on the defendant’s character. Moreover, 18 U.S.C. § 3661 provides that “no limitation” shall be placed on information about defendant’s character for the purpose of imposing an appropriate sentence. U.S. v. Duarte, 901 F.2d 1498 (9th Cir. 1990).
10th Circuit approves variance based on family circumstances. (690) Defendant was convicted of distributing heroin. Although his guideline range was 46-57 months, the district court sentenced him to one year and one day of imprisonment, one year of home confinement, and five years of supervised release. The court provided a lengthy explanation, looking at defendant’s long work history, community support and work ethic. The court also noted defendant’s family circumstances (he was the primary caretaker and sole supporter of his eight-year-old son, and the sole support of his ailing parents). The court found that defendant was unlikely to re-offend, noting his exemplary record on pretrial release. The Tenth Circuit affirmed. Although § 5H1.6, disfavors consideration of family responsibilities, they may be considered in fashioning an appropriate sentence. Gall v. U.S., 128 S. Ct. 586 (2007). The court properly found that defendant’s family circumstances were extraordinary, and that defendant was unlikely to re-offend. Moreover, the term of home confinement and supervised release substantially restricted the defendant’s liberty. U.S. v. Munoz-Nava, 524 F.3d 1137 (10th Cir. 2008).
10th Circuit says support and care for elderly parents in Mexico did not warrant downward departure. (690) Defendant pled guilty to illegally reentering the U.S. following deportation for an aggravated felony. The district court departed downward for extraordinary family circumstances. While working in the U.S., defendant sent half of his paychecks to his parents for their support in an impoverished area of Mexico. His parents were elderly and suffering from a variety of physical problems, and without defendant’s support, his parents would be unable to provide for themselves the basic necessities or any medical care. On his return to Mexico, defendant and his family planned to reside with his parents and survive on what he could plant and grow on the land. The Tenth Circuit held that the family circumstances departure was not warranted. Despite the “genuinely disheartening facts” about defendant’s family, his case did not fall outside the heartland of family circumstances cases. Tenth Circuit case law permits family circumstances departures where the defendant is the only individual able to provide the assistance a family member needs. Upon his release from prison, the support and care defendant would provide his parents was not so specialized and unique that only he could provide it. Defendant admitted that his siblings lived near his parents, and while his siblings were poor and had their own families to support, there was no evidence that they were unable to provide care and assistance to their parents. U.S. v. Reyes-Rodriguez, 344 F.3d 1071 (10th Cir. 2003).
10th Circuit rejects departure for family circumstances and aberrant behavior. (690) The district court granted defendant a three-level downward departure on three grounds: (1) extraordinary family circumstances, (2) aberrant behavior, and (3) a combination of the two factors. The Tenth Circuit reversed. The family circumstances relied upon by the court was the condition of defendant’s 22-year old son, who had a number of psychological disabilities that required constant care and supervision. However, the son’s need for management, structure, and support in his daily routine did not justify a downward departure. There was no evidence that defendant, and only defendant, could provide the help that his son needed. In fact, the son’s psychiatrist stated only that one or the other parent had to be directly involved in his daily care. Defendant’s assistance was required not because he was an irreplaceable part of his son’s treatment, but because defendant’s wife worked full-time and was unable to monitor their son on an ongoing basis and maintain her job. Defendant did not qualify for an aberrant behavior departure because his crime was not “short-lived.” Behavior is aberrant only if its represents “a short-lived, marked departure from an otherwise law-abiding life.” The combination of factors also did not support a departure since there was little support for either ground for departure. U.S. v. McClatchey, 316 F.3d 1122 (10th Cir. 2003).
10th Circuit upholds using employment consequences as basis for departure. (690) Defendant pled guilty to possession of a firearm by a prohibited person and providing false information to obtain a firearm. The district court based a three-level departure on a combination of 11 factors, including “defendant’s long, impressive work history in a situation where good jobs are scarce.” Defendant had been employed for 14 years in a very good position, earning a very high income for the economically depressed community. The Tenth Circuit agreed with the district court that defendant’s employment consequences were atypical. Under § 5H1.5, employment history is ordinarily a discouraged basis for departure. However, the court considered defendant’s employment history and the impact of incarceration on his prospects for future employment in light of the economically depressed community in which he lived. The court did not rely on the collateral employment consequences as a discrete basis for departure, but merely as one of 11 factors supporting the court’s decision to depart. U.S. v. Jones, 158 F.3d 492 (10th Cir. 1998).
10th Circuit upholds community service and support as one of several grounds for departure. (690) On several occasions, defendant violated a restraining order obtained by his estranged wife. He pled guilty to possession of a firearm by a prohibited person and providing false information to obtain a firearm. The district court based a three-level departure on a combination of 11 factors, including defendant’s long history of community service and his strong support in the community, even among the family of the victim. The Tenth Circuit found no abuse of discretion. Sections 5H1.5 and 5H1.11 say that “good works” and community ties are not ordinarily relevant to sentencing. However, the sentencing court found “very unusual” the number of letters from the estranged wife’s close relatives, written in support of defendant and extolling his past good works and opposing incarceration. Community leaders also wrote similar letters. U.S. v. Jones, 158 F.3d 492 (10th Cir. 1998).
10th Circuit holds child support burdens did not justify departure. (690) Defendant pled guilty to possession of a firearm by a prohibited person. The district court based a three-level departure on a combination of 11 factors, including the economic hardship defendant’s incarceration would inflict on his three children and estranged wife due to his decreased ability to pay child support. The Tenth Circuit held that defendant’s family circumstances were not sufficiently unusual to make this discouraged factor a permissible basis for departure. Section 5H1.6 says that family ties and responsibilities are not ordinarily relevant in deciding whether to depart. A discouraged factor must be present to an exceptional degree to serve as a basis for departure. While defendant provided substantial child support, his estranged wife, the custodial parent, was employed and capable of providing for the children. U.S. v. Jones, 158 F.3d 492 (10th Cir. 1998).
10th Circuit reverses downward departure for family circumstances. (690) Defendant pled guilty to firearms charges. The court departed downward because defendant was the sole support for his two children, he cared for his diabetic mother, and no one else was able to care for them. The Tenth Circuit held that these family circumstances were not sufficiently extraordinary to warrant a departure. A defendant’s status as a single parent does not constitute an extraordinary family circumstance warranting departure. There was no finding that defendant’s criminal acts were a single aberrant episode or were inconsistent with his character. The record contained no information about the care his mother required. It did not discuss the mother’s mental or physical abilities, including her ability to prepare her own meals or even care for her grandchildren. U.S. v. Archuleta, 128 F.3d 1446 (10th Cir. 1997).
10th Circuit rejects departure based on effect of wife’s recent death on children. (690) After defendant’s arrest, his wife was killed in an auto accident, leaving behind 3 children, aged 6, 8 and 11. The district court departed downward, concluding that the death of defendant’s wife during the course of the criminal proceedings was an unusual circumstance not adequately considered in the guidelines. The Tenth Circuit reversed, holding that the wife’s recent death did not justify a family circumstances departure. The death had effectively orphaned defendant’s three children, and there had been turmoil in the family about where the children should live and who should be their guardian. However, since their mother’s death, the children had been living with their maternal grandmother, and had no contact with defendant. Defendant did not show that these circumstances were substantially different from those facing minor children of any single parent who is about to be incarcerated. A sole, custodial parent is not a rarity in today’s society, and imprisoning such a parent will by definition separate the parent from the children. U.S. v. Rodriguez-Velarde, 127 F.3d 966 (10th Cir. 1997).
10th Circuit affirms downward departure based on defendant’s family responsibilities. (690) The district court departed downward from 27 months and sentenced defendant to five years probation on the ground that defendant was a single parent who was the sole support of her 2-month old infant, her 16-year old daughter, and her daughter’s 2-month old infant. Defendant also had a steady record of employment, no prior record of drug abuse, and no other felony conviction. The 10th Circuit affirmed, finding that the aber-rational character of her conduct, combined with her responsibility to support two infants, supported the departure. It rejected the government’s contention that a departure based on family ties and responsibilities was improper. The language of guideline § 5H1.6 implies that there may be extraordinary circumstances where family ties and responsibilities are relevant to the sentencing decision, and this was such a case. The extent of the departure was also reasonable. U.S. v. Pena, 930 F.2d 1486 (10th Cir. 1991).
11th Circuit says defendant’s employment and family ties insufficient for downward departure. (690) Defendant argued that he was entitled to a downward departure on the basis of a favorable employment record and the fact that he had substantial family responsibilities. He presented evidence that he had consistently held a job as a truck driver and had a seven-year old son to whom he contributed support. The Eleventh Circuit held that the district court did not err in refusing to depart on these grounds. Under §§ 5H1.5 and 5H1.6, a defendant’s employment record and family ties are generally not grounds for departure, unless the factor is “present to a degree substantially in excess of that which ordinarily is involved in the offense.” Defendant’s situation did not distinguish him significantly from the rest of the general population. U.S. v. Matthews, 168 F.3d 1234 (11th Cir. 1999).
11th Circuit rejects departure even though defendant had primary care for father’s chronic illnesses. (690) Defendant had a guideline range of 12 18 months, but the court departed downward under § 5K2.0 on the basis of defendant’s family responsibilities. Defendant was the primary caretaker of her 70 year old father, who suffered from both Alzheimer’s and Parkinson’s diseases. The Eleventh Circuit reversed, holding that defendant’s family responsibilities, though difficult, were not extraordinary. There is no reason to treat a defendant who is the primary caretaker of an infirm parent any differently than the primary caretaker of small children. U.S. v. Allen, 87 F.3d 1224 (11th Cir. 1996).
11th Circuit rejects downward departure based upon parental status. (690) The 11th Circuit rejected defendant’s claim that the district court improperly believed it lacked authority to depart downward based her status as the mother of four small children. The district court’s statement should be interpreted as stating that under the guidelines, defendant’s family situation did not warrant a downward departure. The court further agreed with decisions in the 4th, 6th and 8th Circuits holding that unless there are extraordinary circumstances, a district court may not depart downward to reflect a defendant’s parental status. U.S. v. Cacho, 951 F.2d 308 (11th Cir. 1992).
D.C. Circuit finds single father’s family circumstances were not extraordinary. (690) Defendant argued that the district court erred in failing to depart under § 5H1.6 because of his extraordinary family circumstances. Defendant was a single father of two young children who might be placed in foster care if defendant’s brother refused to take them. The D.C. Circuit found no error since defendant’s family circum-stances were not extraordinary. Defendant’s situation was no different from that deemed not to be extraordinary in U.S. v. Dyce, 91 F.3d 1462 (D.C. Cir. 1996). Although the situation may be harsh for defendant’s children, it was not so extraordinary as to warrant a departure. U.S. v. Leandre, 132 F.3d 796 (D.C. Cir. 1998).
D.C. Circuit holds that breast feeding mother did not have extraordinary family circumstances. (690) Defendant was convicted of drug charges. The district court departed downward based on her “extraordinary” family circumstances—she was a single mother of three, the youngest a breast feeding infant. The D.C. Circuit held that the mother did not have “extraordinary” family circumstances. Although defendant was single, she did not live alone. She lived with the father of her children and her mother, father and sister, all of whom claimed to be employed. There was no evidence that defendant carried the financial burden of raising her children. Her incarceration would have less of an adverse influence on her family than would normally be the case. The fact that defendant was breast feeding her infant also did not make her circumstances extraordinary. There was no evidence that the child could not have fed from a bottle. The court also could have accommodated defendant by giving her the option of delaying commencement of her sentence until after the baby had been weaned. U.S. v. Dyce, 91 F.3d 1462 (D.C. Cir. 1996).
D.C. District Court departs downward based on defendant’s family responsibilities and lack of threat to society. (690) The district court found that a downward departure from 51 to 36 months was justified because the guidelines do not adequately take into consideration the ability of the trial judge to evaluate the culpability of the defendant, her similarity or dissimilarity to other people convicted of the same crime, her family responsibilities, and the threat she poses to the community. The defendant here had two children, ages 1 and 6, and received no financial support from the children’s fathers. She was a homeless addict, without any means of support, selling drugs to support her addiction. Although these circumstances did not make defendant less culpable, they did indicate that defendant did not pose a severe danger to the community. A 51-month sentence would be “unduly harsh for a homeless mother, addicted to drugs, with two small children, and who was as much a victim of people higher up in the drug distribution chain as she was a perpetrator.” U.S. v. Jackson, 756 F.Supp. 23 (D.D.C. 1991).
Missouri District Court rules consideration of family information is permitted but not required by the guidelines. (690) Denying a crack dealer’s new trial motion, the district court that decided the original Mistretta case held that the fact that the sentencing guidelines do not consider a defendant’s family back-ground and community ties does not impose an absolute bar on their use in sentencing. All the guidelines require is that there shall be no routine use of such information in sentencing. U.S. v. Rodriguez, 691 F.Supp. 1252 (W.D.Mo. 1988).
Maryland District Court holds downward departure in theft of mail case was warranted by defendant’s exceptional military record. (690) The defendant pled guilty to one count of theft of mail matter by a postal employee. The guideline range suggested 1-7 months, but the court decided to sentence the defendant to a period of probation without confinement, given his exceptional military record. Although the government took no position on the issue, the probation department contended that military service is a form of employment history, which the commission stated should not be considered in departure cases. The court concluded that since military service was not a factor accorded weight by the sentencing, it is an appropriate ground for departure. To ignore military service would do a great disservice to veterans. U.S. v. Pipich, 688 F.Supp. 191 (D.Md. 1988).
Articles discuss departures for family circumstances. (690) A series of articles in the Federal Sentencing Reporter revisit departures for family circumstances. Professor Myrna Raeder, an outspoken proponent of departures based on family circumstances, argues that family considerations should always be relevant in sentencing. Professor Jennifer Segal, on the other hand, cites research indicating that children receive equal care and attention from foster or adoptive mothers as from birth mothers and suggests that women facing prison sentences may not be the best caretakers for their children. Amy Farrell, a research associate at the Center for Criminal Justice Policy at Northeastern University, says courts adhere to one of three verbal formulas, (1) whether the family circumstances is “extraordinary” in its own right; or (2) whether the impact of the sentence on the family is likely to be unusual or “exceptional”; or (3) whether the family circumstances is at least “substantial.” Professor Douglas Berman suggests that the courts have failed to come to grips with why a defendant’s family situation should be taken into account at sentencing. Thus, he says that the debate about “ordinary” vs. “extraordinary” is misguided. Gerald Greenberg and Joanna Schwartz, Unresolved Questions About Family Circumstances, 13 FED. SENT. REP. 247 (March/April 2001).
Commission limits departures for family ties and responsibilities; eliminates community ties. (690) The Commission amended § 5H1.6 to limit departures for loss of caretaking or financial support to cases in which all four of the following factors are present: (1) the sentence will cause a substantial, direct and specific loss of “essential caretaking or essential financial support” to the defendant’s family, (2) such loss exceeds the harm ordinarily incident to incarceration, (3) the defendant’s caretaking or financial support is “irreplaceable,” and (4) the departure effectively will address the loss of caretaking or financial support. The Commission also deleted community ties from § 5H1.6. Amendment 651, October 27, 2003.
Article summarizes departures for family ties and responsibilities. (690) In the seventh of a series of articles on departures, defense attorneys Alan Ellis and Samuel A. Shummon describe the case law on departures for family ties and responsibilities. Such departures are “discouraged” by the guidelines in § 5H1.6. Nevertheless, a number of cases have granted downward departures based at least in part on the defendant’s extraordinary family circumstances. The authors point out that, with the exception of the Second Circuit in U.S. v. Galante, 111 F.3d 1029, 1036 (2d Cir. 1997), superseded by statute as stated in U.S. v. Leiva-Deras, 356 F.3d 183 (2d Cir. 2004), “not one circuit court has tried to develop a departure standard that would serve to help the district court’s differentiate between typical and atypical cases.” Alan Ellis and Samuel A. Shummon, Post-Koon Downward Departures, Part VII: Family Ties and Responsibilities, A.B.A. CRIMINAL JUSTICE 48 (Summer 1999).
Articles discuss Supreme Court’s decision in Koon. (690) In an issue of the Federal Sentencing Reporter edited by Mark Harris and Douglas Berman, a number of authors discuss the Supreme Court’s decision in Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996). Paul Hofer, Special Projects Director at the Sentencing Commission, expresses concern that the Court’s “heartland” concept may yield different results depending on whether the method used is “statistical,” “intentional,” or “normative.” Professor Kate Stith asserts that the Court’s “abuse of discretion” standard did little to challenge the Sentencing Commission’s hegemony. Professor Frank Bowman argues that it is “pure banana oil” for the Court to say that Congress intended district courts to “retain much of their traditional sentencing discretion,” and says the Court is wrong when it says district courts have an “institutional advantage” over appellate courts in making departure decisions.” Former AUSA Peter Vigeland suggests that defense counsel’s role, after Koon, “is to exploit the hostility many district judges bear towards the guidelines,” but Federal Defender Abraham Clott worries that Koon may actually “encourage courts of appeals to narrow the range” in which district courts may exercise discretion at all.” Defenders James Forman and Giovanna Shay draw attention to the racial implications of Koon, suggesting that additional discretion “may largely reinforce existing discrimination in the criminal justice system.” Probation Officer Francesca Bowman offers statistics from the District of Massachusetts indicating that “it does not appear that the Koon decision is undermining the guidelines.” Finally, Catherine Goodwin, Assistant General Counsel at the Administrative Office of U.S. Courts, points out that Koon did not deal with the extent of departures, and she suggests that probation officers should “assist the court by analyzing the potential for departures.” Mark Harris and Douglas Berman, Koon v. United States: The Supreme Court’s Puzzling Ruling on Departures and Discretion, 9 FED. SENT. RPTR. 4-36 (1996).
Commission rejects “youthful lack of guidance” as a basis for departure. (690) In an amendment effective November 1, 1992, the Commission added a new section 5H1.12 stating that “lack of guidance as a youth and similar circumstances indicating a disadvantaged upbringing are not relevant grounds for imposing a sentence outside the applicable guideline range.” This amendment appears to disapprove the 9th Circuit’s contrary decision in U.S. v. Floyd, 945 F.2d 1096 (9th Cir. 1991), amended, 956 F.2d 203 (9th Cir. 1992).
Commission disapproves of departures based on military, civic, charitable or public service. (690) A new policy statement to section 5H, effective November 1, 1991 sets forth the Commission’s position that military, civic, charitable, or public service, employment-related contributions, and record of prior good works are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range.