§736 Departures: Specific Offender Characteristics
(U.S.S.G. §5H)
First Circuit
Second Circuit
Third Circuit
Fourth Circuit
Fifth Circuit
Sixth Circuit
Seventh Circuit
Eighth Circuit
Ninth Circuit
Tenth Circuit
Eleventh Circuit
D.C. Circuit
Miscellaneous
1st Circuit agrees that caselaw precluded rehabilitation departure. (736) Defendant argued that the district court erroneously concluded that it did not have the legal authority to depart downward based on his poor health and his presentence rehabilitation. Although a district court’s discretionary denial of a departure is not appealable, a refusal to depart based on a misunderstanding of the law is reviewed de novo. Here, with regard to the requested poor health departure, the district court reasoned that defendant would receive adequate health care in prison; it did not suggest that it was legally constrained from granting a health-related departure. Therefore, the First Circuit refused to review this issue. As to defendant’s presentence rehabilitation, the district court ruled that the “degree of discretion” afforded by the caselaw did not extend to the circumstances of the case. The panel agreed with this conclusion — caselaw precluded a downward departure based on defendant’s obtaining employment and beginning a drug treatment program. See, e.g., U.S. v. Rushby, 936 F.2d 41 (1st Cir. 1991). U.S. v. Monteiro, 417 F.3d 208 (1st Cir. 2005).
1st Circuit says defendants did not establish reasonable probability of lower sentence. (736) Although defendants did not raise the issue below, the appellate court invited them to make a plain error showing that there was a “reasonable probability” that the district court would impose a more favorable sentence under the new advisory guidelines. See U.S. v. Booker, 543 U.S. 220 (2005); U.S. v. Antonakopoulos, 399 F.3d 68 (1st Cir. 2005). Defendants pointed to several factors that might have led to a lower sentence under an advisory guideline regime. These factors included that the crime was an instance of aberrant behavior and that defendants had distinguished records of public service. However, aberrant behavior is a permissible consideration for a departure, and the district court actually rejected this ground for departure on the merits. Defendants’ embezzlement, executed over many years through a variety of methods, was not a single act of aberrant behavior. The problem was similar for public service, which was also a permitted but discouraged ground for departure. The judge did not disregard their public service – he made a judgment and took it into account by sentencing them at the bottom of the guideline range. Finally, the judge went out of his way to indicate that he thought defendants received just sentences. U.S. v. Cacho-Bonilla, 404 F.3d 84 (1st Cir. 2005).
1st Circuit cannot review refusal to grant family circumstances departure. (736) 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 approves three-level downward departure for defendant suffering from Crohn’s disease. (736) Departures based on physical condition are discouraged, U.S.S.G. § 5H1.4; a defendant’s physical impairment must be “extraordinary” to warrant a departure. For more than 30 years, defendant suffered from Crohn’s disease, a malady of small intestine that can cause periodic episodes of obstruction and acute abdominal pain. The district found that defendant “would be unusually susceptible to harm in prison because of his multiple disabilities and indeed would be extremely vulnerable to the risk of death because of an emergency need of medical and surgical conditions. The First Circuit agreed with the district court’s decision to depart by three levels. Defendant submitted a letter from his gastroenterologist of 31 years stating that should Demerol not be available to defendant, with 6 to 12 hours he could develop a bowel obstruction that could require urgent surgery. Moreover, defendant suffered from a suppressed immune system as a result of continued steroid therapy necessary to treat Crohn’s disease. Defendant’s internist stated that confinement in a correctional facility would place defendant “at unacceptable risk for serious infectious disease.” U.S. v. Martin, 363 F.3d 25 (1st Cir. 2004).
1st Circuit cannot review where court was aware of discretion to depart. (736) Defendant sought review of the district court’s decision not to depart downward pursuant to U.S.S.G. § 5H1.4, which authorizes a departure for “an extraordinary physical impairment.” At sentencing, defendant presented evidence that he had only one remaining kidney as a result of an emergency nephrectomy performed in 1985, suffered from cirrhosis and calcified arteries, and had a demonstrated family history of heart disease. Missing from the record was any evidence that the Bureau of Prisons would be unable to provide the appropriate treatment for him or that incarceration itself would aggravate his condition. The First Circuit upheld the district court’s refusal to depart, finding the district court clearly recognized its authority to depart, and declined to exercise that authority. There was nothing in the record to suggest that the court believed that it lacked the legal authority to depart under § 5H1.4. Instead, the court reviewed the circumstances, understood it had the discretion to depart, and concluded that the circumstances were not sufficiently extraordinary to warrant a departure. This was a judgment call, not one reviewable on appeal. U.S. v. Lujan, 324 F.3d 27 (1st Cir. 2003), habeas corpus granted in part by Lujan v. U.S., 2004 WL 2044302 (D.N.H. Sep. 14. 2004) No. CIV 04-247-SM.
1st Circuit holds that motive of returning to U.S. to care for daughter was equivalent to family ties and responsibilities. (736) 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 holds that increased sentence because of judicial error not grounds for downward departure. (736) The district court originally departed downward from defendant’s guideline range of 18-24 months and sentenced defendant to 366 days’ of imprisonment. On appeal, the First Circuit reversed the departure. By the time of resentencing, defendant was close to completing his original 366-day sentence and was serving the remainder of his sentence in home confinement. The court found it would be “an unconscionable burden to have [defendant] go through the stages of confinement and now begin to emerge at the end and then go back, for no reason other than that [the court] made a mistake ….” The court sentenced defendant to 18 months imprisonment, but issued an order directing the BOP to keep defendant in home confinement for the remainder of his sentence. Because such home confinement was not authorized by statute, the court noted that the resentence constituted a downward departure. The First Circuit held that an increased sentence or reincarceration due to a previous judicial error is not grounds for a downward departure. It is not a factor mentioned by the guidelines; therefore, departure is only permitted if this factor makes defendant’s case so unusual or special as to take it out of the heartland. There is nothing special or unusual about defendant’s increased incarceration due to the previous sentencing error. Defendant was still in federal custody and was aware of a dispute over his proper sentence since his filing of the original appeal. U.S. v. Bogdan, 302 F.3d 12 (1st Cir. 2002).
1st Circuit holds that defendant’s relationship with biracial son did not make family circumstances exceptional. (736) Defendant moved for a downward departure based on his relationship as a parent of color with his nine-year old biracial son. He submitted a doctor’s report about the importance to the availability of the parent of color to the offspring of color, in order for the child to have a needed role model. The district court found that § 5H1.10, which makes race irrelevant to the determination of a sentence, barred a departure here. The First Circuit found it unnecessary to address whether § 5H1.10 barred the departure, since even if the district court had considered defendant’s race and cultural background, the circumstances did not support a finding that defendant’s family circumstances were exceptional. See USSG § 5H1.6. The support defendant provided to his son was not so different in kind or degree from the many kinds of support that can be important in the parent/child relationship. The hardship visited upon defendant’s family by his incarceration did not match the hardship endured by other families in cases where the court refused to authorize a departure. U.S. v. Louis, 300 F.3d 78 (1st Cir. 2002).
1st Circuit holds that family circumstances and introspection did not warrant downward departure. (736) The district court departed downward based on defendant’s role as a father, his effort to make amends with his ex-wife, his introspection, and his appreciation for the wrongfulness of his conduct. The First Circuit found that that all of these factors had been considered by the guidelines, and the combination of factors together did not make his case exceptional. Defendant’s role as a father and his effort to make amends with his wife fell within family ties and responsibilities, a discouraged factor under § 5H1.6. Defendant’s introspection and appreciation for the criminality of his conduct were taken into account by § 3E1.1, the acceptance of responsibility provision. Because the factors upon which the court relied to depart were discouraged or already considered by the guidelines, a departure is justifiable only if the factors were “present to some exceptional degree.” They were not. Being an exemplary parent or spouse is not sufficient to take a case out of the heartland. The fact that defendant was highly introspective and appreciated the criminality of his conduct, although admirable, did not make his case at all exceptional. U.S. v. Bogdan, 284 F.3d 324 (1st Cir. 2002).
1st Circuit says family circumstances departure requires defendant to be “irreplaceable.” (736) 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. (736) 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 refuses to depart for HIV defendant in good physical condition. (736) Defendant requested a downward departure because she was HIV positive and her dependent child had AIDS. The First Circuit held that the district court properly recognized that it lacked the authority to depart downward, because defendant’s medical and physical condition did not constitute an “extraordinary physical impairment.” Although defendant was HIV positive, she did not have advanced AIDS. Defendant remained in relatively good physical condition. The Bureau of Prisons determined that defendant had no difficulty with either her emotional or physical health. As for the fact that her son has AIDS, the district court recognized that it had the power to depart in exceptional family circumstances. Since the court fully recognized its authority to depart, but chose not to do so, the appellate court lacked jurisdiction over the claim. U.S. v. Rivera-Maldonado, 194 F.3d 224 (1st Cir. 1999).
1st Circuit affirms refusal to depart for age, health and rehabilitation. (736) Defendant argued that the district court should have imposed a lower sentence because of her age, medical condition and rehabilitative efforts. At sentencing, however, she raised none of these claims, arguing only that she had withdrawn from the conspiracy after a 1989 execution of a search warrant at her apartment. The First Circuit found no error. Age and health are not ordinarily relevant sentencing factors. Defendant did not argue that her age and health constituted a mitigating circumstance of a kind or to a degree not adequately taken into consideration by the Sentencing Commission. Furthermore, her rehabilitation claim was belied by the fact that at sentencing, she refused to acknowledge participation in the conspiracy after 1989. U.S. v. Candelaria-Silva, 166 F.3d 19 (1st Cir. 1999).
1st Circuit says court must compare robber’s community service to others with comparable records of good works. (736) Defendant conspired to rob an armored car. The district court departed downward by 29 months based on defendant’s history of charitable work and community service. The 1st Circuit found that the district court improperly compared defendant’s record to other bank robbers, and not to other defendants with comparable records of good works. Community service is a discouraged ground for departure under § 5H1.11. A discouraged feature departure is warranted only if the “nature and magnitude” of the feature’s presence is unusual or special as compared to others with that feature. Thus, even if defendant’s community service was unusual for a bank robber, this was not sufficient to warrant a departure. U.S. v. DeMasi, 40 F.3d 1306 (1st Cir. 1994).
1st Circuit says court was aware it could depart but found defendant’s family situation not exceptional. (736) Defendant argued that the district court erroneously believed that it was precluded from departing based on his extraordinary family circumstances. The 1st Circuit disagreed, finding that the court simply concluded that defendant’s circumstances were not extraordinary. The judge stated that the facts of the case were not “so different from what I see in 90 percent of the cases.” The judge did not say that the guidelines prohibited him from considering the blood disease of defendant’s son, but that he considered the disease and it was not enough for him to depart. U.S. v. Romero, 32 F.3d 641 (1st Cir. 1994).
1st Circuit rejects downward departure from sentence that was tantamount to life imprisonment. (736) Defendant was convicted of drug and firearms charges. The guidelines required a minimum 27-year prison term. The district court departed downward, reasoning that since defendant was 40 years old, the guideline sentence would be tantamount to a life sentence. The court did not believe that a life sentence was appropriate for defendant’s crimes. The 1st Circuit reversed. Under § 5H1.1, age is not ordinarily relevant to sentencing. Defendant’s age was not special or unusual. The interrelationship between defendant’s age and the length of his prospective sentence was not an adequate legal ground for a departure. The judge’s dissatisfaction with the severity of the guideline sentence was also not a proper ground for departure. Senior Judge Pettine concurred since the result was mandated by the guidelines. However, he wrote separately because he subscribed to the district judge’s sentiment that the guidelines are a “failed experiment.” U.S. v. Jackson, 30 F.3d 199 (1st Cir. 1994).
1st Circuit agrees that defendant’s heart condition did not justify a downward departure. (736) Both defendant’s doctor and an independent doctor stated that defendant had coronary artery disease that required medication and ongoing medical care. The district court refused to depart downward based on health reasons, stating that defendant’s condition did not permit it to depart downward. The 1st Circuit held that the district court fully understood its authority to depart downward. The district court would not have required the parties to obtain an independent physician’s opinion if it believed that a downward departure was forbidden. The district court correctly understood that a departure for medical reasons is discouraged by the guidelines, and found that defendant’s condition was not serious enough to justify such a departure. U.S. v. LeBlanc, 24 F.3d 340 (1st Cir. 1994).
1st Circuit does not require explanation for failure to depart downward. (736) Defendant challenged the district court’s failure to depart downward based on his age, physical ailments and mental health problems. He argued that the court must have believed it lacked discretion to depart downward. The 1st Circuit found no evidence that the district court doubted its authority. Departures on the grounds asserted are comparatively rare, as stated in sections 5H1.1 and 5H1.4. In the ordinary case no explanation for declining to do so is required. U.S. v. Lombardi, 5 F.3d 568 (1st Cir. 1993), superseded on other grounds by statute as stated in U.S. v. Martin, 363 F.3d 25 (1st Cir. 2004).
1st Circuit upholds downward departure based on regression child would suffer if defendant were incarcerated. (736) 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 finds error in denying power to depart for family situation. (736) Defendant had never committed a crime before transporting one pound of cocaine in an effort to obtain money to buy Christmas presents for her three children, ages three, five, and six. She sought a downward departure based on these facts, along with her children’s need for her care, the absence of financial aid from her ex-husband to support the children, and her lack of contact with other family members who might be able to rear her children. The 1st Circuit disagreed with the district court’s conclusion that it lacked power to depart. The district court could have concluded that this case was sufficiently unusual to depart. U.S. v. Rivera, 994 F.2d 942 (1st Cir. 1993).
1st Circuit rules court was aware it could depart based on physical condition, employment and family ties. (736) Defendant contended that the district court wrongly concluded that it lacked authority to depart downward based upon her physical condition, employment record, and family ties. The 1st Circuit concluded after reviewing the full record that the district court was aware of its ability to depart downward, but had concluded regretfully that the specific provisions of the guidelines that defendant wished to invoke simply did not permit departure under the circumstances of her case. The presentence report specifically discussed and rejected physical condition, employment record and family ties as factors that might warrant departure in defendant’s case. The factors were again discussed in defendant’s memorandum in objection to the presentence report, and were presented orally to the district court at the sentencing. U.S. v. DiIorio, 948 F.2d 1 (1st Cir. 1991).
1st Circuit affirms denial of downward departure based upon defendant’s drug addiction. (736) Defendant argued that the district court mistakenly believed it lacked authority to depart downward based upon her cocaine addiction. The 1st Circuit upheld the district court’s ruling. Section 5K2.0 presents two avenues to a valid departure: (a) a departure may be based upon a qualitative “kind” of circumstance not considered by the Commission, or (b) a departure may be based upon circumstances which, though considered by the Commission, are present “to a degree” not envisioned nor frequently seen in connection with the offense. Section 5H1.4 states that drug addiction is not a reason for imposing a sentence below the guidelines. Thus, drug dependency was taken into account in the guidelines. Moreover, defendant’s addiction was not atypical for a drug offense so as to justify an exception to the general rule in § 5H1.4. U.S. v. Citro, 938 F.2d 1431 (1st Cir. 1991).
1st Circuit rejects downward departure based upon family ties, employment record and drug dependency. (736) 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. (736) 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 states that unavailability of prison treatment programs may justify downward departure, but not here. (736) The 1st Circuit noted that although the unavailability of treatment facilities applies equally to all defendants convicted of violating the child pornography statutes, the district court may properly conclude that only some defendants need treatment. Moreover, it is within the district court’s domain to ascertain whether a defendant in need of treatment would actually respond to treatment. U.S.S.G. § 5H1.3 “provides support for the district court to consider the defendant’s special need for, and receptiveness to, treatment in deciding whether to depart.” Here, however, the district court did not make a finding that the defendant had an exceptional need for, or an ability to respond to treatment. Accordingly, the departure was reversed. U.S. v. Studley, 907 F.2d 254 (1st Cir. 1990).
1st Circuit reverses downward departure based on defendant’s pregnancy, marital relationship, and lack of nearby halfway house. (736) 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 responsibilities” 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 insufficient evidence that extreme childhood abuse contributed to current offense. (736) The district court granted defendant a five-level downward departure under § 5H1.3 after finding she suffered extraordinary childhood abuse that created a mental or emotional condition that caused her to commit the instant bank fraud. The Second Circuit agreed that defendant suffered extraordinary abuse as a child, but nonetheless reversed the departure. The evidence was insufficient to support a finding that the extreme abuse suffered by defendant contributed to her commission of bank fraud, as required by § 5H1.3 for an upward departure. The many years of abuse endured by defendant was extraordinary – she was violently abused as an infant by both of her birth parents and in later childhood by her adoptive parents, and from ages 11 to 14, she was sexually abused by another family member, and in her adult life, by her boyfriend. However, in order to support a departure, there must be a causal connection between the abuse and the criminal conduct. There was little support in the record for a finding that defendant’s impaired emotional or mental condition led her to engage in a conspiracy to commit bank fraud. U.S. v. Brady, 417 F.3d 326 (2d Cir. 2005).
2nd Circuit holds that exceptional degree of defendant’s public service supported downward departure. (736) The government argued that the district court overstepped its departure authority under the guidelines when it granted defendant a downward departure based on public service and good works. Defendant argued that the government’s failure to object to this departure ground in the district court waived this argument on appeal. The Second Circuit agreed. Nonetheless, because the case was being remanded on other grounds, the panel examined the government’s challenge on the merits and found no error in the departure. The record plainly demonstrated the “exceptional degree” of defendant’s public service and good works. As a college student, he volunteered for the Marine Corps, and honorably served his country for six years. For seven years, he also served his community as a volunteer firefighter, sustaining injuries in the line of duty three times. In one case, he risked his life by entering a burning building to rescue a three-year old hiding under a bed. He also participated in the delivery of three babies and administered CPR to persons in distress. Although his military and volunteer service occurred 20 years ago, at least three recent incidents where defendant aided strangers in distress demonstrated that this was a part of his character. U.S. v. Canova, 412 F.3d 331 (2d Cir. 2005).
2nd Circuit finds fact that defendant’s wife would have to postpone college and supplement income not extraordinary. (736) 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. (736) 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. (736) 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 upholds refusal to depart for defendant who prevented another inmate’s suicide. (736) The district court ruled that it lacked the authority to depart downward on the basis that defendant prevented the suicide of another inmate. It found that defendant’s action was a charitable “good work” falling within USSG § 5H1.11, and as such was not relevant to the determination of whether a departure was warranted. However, the court also explicitly stated that even assuming that defendant’s charitable effort was a relevant criterion, his act was not so exceptional as to warrant a departure. This alternative holding rendered moot the question of whether the district court misunderstood its authority to depart. Thus, the Second Circuit ruled the district court’s denial of the motion for a departure was not appealable. U.S. v. Amezquito Acevedo, 229 F.3d 350 (2d Cir. 2000).
2nd Circuit says extreme childhood abuse may warrant departure. (736) Although § 5H1.3 says that “[m]ental and emotional conditions are not ordinarily relevant” at sentencing, a defendant’s mental and emotional condition can be taken into account in “extraordinary” situations. See e.g. U.S. v. Lara, 905 F.2d 599 (2d Cir. 1990). Severe abuse suffered during childhood can impair a person’s mental and emotional conditions. Thus, the Second Circuit held that in extraordinary circumstances, district courts may properly depart downward where extreme childhood abuse caused mental and emotional conditions that contributed to defendant’s commission of the offense. The appellate court would not presume that the district court was aware of its authority to depart on this basis, since at the time of sentencing, the Second Circuit had not decided whether extreme childhood abuse could ever warrant a departure. Nonetheless, the panel did not remand for resentencing, because a departure under the facts of this case would have been an abuse of discretion. Although the instances of corporal punishment cited by defendant may have risen to abuse, defendant did not show, as required by § 5H1.3, that the abuse was so extraordinary that it could be assumed to cause mental or emotional pathology. U.S. v. Rivera, 192 F.3d 81 (2d Cir. 1999).
2nd Circuit upholds refusal to depart for heart condition. (736) Section 5H1.4 authorizes a departure if a defendant suffers from an “extraordinary physical impairment.” Defendant challenged the district court’s decision not to depart downwardly because of his heart impairment. He claimed the district court focused primarily on the ability of the Bureau of Prisons to treat his heart condition medically without adequately considering his status as an informant and the effect that segregation would have on his health. The Second Circuit found no merit to this argument. The district court’s decision not to depart is normally unappealable. There was nothing in the record to indicate that the district court erroneously believed it lacked the authority to depart if it chose. The court refused to depart only after satisfying itself that defendant was receiving adequate treatment from the Bureau of Prisons, and only after the Chief of the FBI’s Witness Security Program reported that defendant would not be kept in segregation. U.S. v. Napoli, 179 F.3d 1 (2d Cir. 1999).
2nd Circuit says motion properly treated as request for departure rather than plea withdrawal. (736) Defendant tendered a guilty plea under an agreement providing for a 14-year sentence. The judge deferred decision on whether to accept the plea agreement and the plea. Defendant’s health deteriorated, and for about three years, he was incarcerated in various federal prison hospitals. Defendant then moved under Rule 32(e) to reject the plea agreement. In view of his diminished life expectancy, he asked the court to impose a sentence less than the bargained-for sentence. The judge, treating defendant’s motion as a request for a downward departure, refused to depart because the medical staff of the Bureau of Prisons was able to adequately care for defendant. The Second Circuit ruled that the district court properly treated defendant’s motion as a request for a departure rather than a request for a plea withdrawal. The plea and agreement had not yet been accepted when defendant made his application; thus, a Rule 32(e) plea withdrawal motion was technically not available. The judge acted well within his discretion in refusing to depart. The standards for a downward departure on medical grounds are strict. Section 5H1.4 requires an extraordinary medical condition that the Bureau of Prisons cannot accommodate. U.S. v. Persico, 164 F.3d 796 (2d Cir. 1999).
2nd Circuit reverses family circumstances departure. (736) Defendant was a recently divorced father of three children, aged 10, 11 and 13. All of the children lived with their mother. Defendant’s ex-wife earned about $40,000 a year, and also received about $278 per week in child support from defendant. The district court granted defendant a five-level downward departure on the basis of his family circumstances, since defendant’s children were minors who depended on his financial support to maintain their standard of living. The Second Circuit reversed, finding the factors relied on by the court were short of what is required to justify a family circumstances departure. The financial and emotional consequences of defendant’s incarceration were no greater than those faced by most criminal defendants who have a family, and in fact might be somewhat less serious than those faced by many such defendants. Although defendant paid child support, he no longer lived with the children, and his ex-wife earned about $40,000 a year. Defendant’s family was not uniquely dependent on his support. U.S. v. Faria, 161 F.3d 761 (2d Cir. 1998).
2nd Circuit reverses downward departure for harm to children’s marriage prospects. (736) 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 parents–that 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. (736) 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 says judge’s lament that he “would do something different” but for guidelines did not show he felt could not depart. (736) Defendant argued that the district judge did not recognize his authority to depart for extraordinary family circumstances. The judge made comments at sentencing to the effect that he “would do something different” but for the sentencing guidelines. The Second Circuit held that the judge’s comments did not show that he misunderstood his authority to depart. The guidelines have been around sufficiently long to presume that district judges understand the processes by which they may depart from the guidelines. Judges are not required to make a “robotic incantation” that they are aware of their authority to depart but that they have consciously chosen not to exercise it. U.S. v. Brown, 98 F.3d 690 (2d Cir. 1996).
2nd Circuit upholds downward departure for medical condition and good deeds. (736) Defendant, an elected sheriff, was convicted of extorting funds from deputy sheriffs he appointed. The Second Circuit upheld a downward departure from offense level of 20 to 10 based on defendant’s physical condition, charitable fundraising efforts, and civic accomplishments. Defendant had a kidney transplant over 20 years ago, and his new kidney was diseased. He needed regular blood tests and prescription medicines. As a complication of the kidney medicines, defendant contracted a bone disease requiring a double hip replacement. This also required monitoring. While many of defendant’s public acts of charity were not worthy of commendation, he unquestionably participated to a large degree in legitimate fund raising efforts, particularly with regard to the Kidney Foundation. U.S. v. Rioux, 97 F.3d 648 (2d Cir. 1996).
2nd Circuit affirms downward departure based on completed pre arrest rehabilitation. (736) Upon finishing a 152 day state sentence for another offense in the fall of 1990, defendant left the drug organization in which he was involved and joined the U.S. Army. Defendant rehabilitated himself and completed his military service honorably. The Second Circuit upheld a downward departure based on defendant’s pre arrest rehabilitation. The rehabilitation was not undertaken at the spur of impending prosecution for the crimes at issue. It was an independent and impressive effort. Under U.S. v. Maier, 975 F.2d 944 (2d Cir. 1992), a defendant’s post arrest rehabilitation efforts may justify a downward departure. While this is not a uniformly accepted rule, it is the law in the Second Circuit. U.S. v. Workman, 80 F.3d 688 (2d Cir. 1996).
2nd Circuit does not review refusal to depart based on priest’s charitable works. (736) Defendant, a Catholic priest, was convicted of conspiracy to possess stolen money. He claimed the district court erroneously refused to grant a downward departure for his charitable works and public service. The Second Circuit refused to review the matter, concluding the district court recognized its authority to depart, but elected not to do so. The court noted that generally charitable works and public service do not merit a departure, and that therefore the conduct would have to be “extraordinary” to merit a downward departure. It also found that defendant had benefits that few defendants have, including education, respect in his work, intelligence and the calling to serve as a priest. U.S. v. Millar, 79 F.3d 338 (2d Cir. 1996).
2nd Circuit rejects downward departure to allow defendant to have child during wife’s remaining childbearing years. (736) 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 finds defendant’s physical condition did not merit downward departure. (736) Defendant claimed that the district court was unaware of its authority to depart under § 5H1.4 based on his physical condition. The Second Circuit disagreed, finding that the district court simply concluded that defendant did not have an extraordinary physical impairment. The health problems cited by defendant simply needed monitoring, and the Bureau of Prisons would be able to do such monitoring. U.S. v. Altman, 48 F.3d 96 (2d Cir. 1995).
2nd Circuit finds post-arrest efforts to end drug addiction insufficient to depart. (736) Defendant pled guilty to drug charges. While awaiting sentencing, he completed 16 hours of a 40-hour drug education program at his correctional facility. He also asked the court to recommend that he serve his sentence at a federal prison in North Carolina so that he could enroll in its drug treatment program. The 2nd Circuit reversed a downward departure based on defendant’s efforts to end his drug addiction. In extraordinary cases, a defendant’s rehabilitative efforts to end a drug dependence may be grounds for a downward departure. Here, however, defendant simply attended a drug education program. He had not yet entered a drug treatment program and could not point to any objective indicator of his progress towards overcoming his dependence. At best, defendant showed a genuine desire to seek rehabilitative treatment in the future. U.S. v. Williams, 37 F.3d 82 (2nd Cir. 1994).
2nd Circuit says “I wish the law permitted me to do something, but it doesn’t” showed unawareness of authority to depart. (736) In her plea agreement, defendant agreed not to move for a downward departure. However, her counsel asked the court to impose the minimum possible sentence, after advising the court of the “grave personal family difficulties” that defendant faced as the widowed mother of five children, three with serious health problems. The district court, in response, stated “I . . . wish that the law permitted me to do something, but it doesn’t,” and then imposed the minimum guideline sentence of 51 months. The 2nd Circuit remanded because this statement indicated the district court may not have been aware of its authority to depart, sua sponte, based on defendant’s family circumstances. The fact that the judge had in the past granted a downward departure on account of family circumstances, and had also previously departed downward sua sponte, did not, in light of the judge’s language, prove that he was aware of his authority to depart here sua sponte. U.S. v. Ekhator, 17 F.3d 53 (2nd Cir. 1994).
2nd Circuit says that departure may be based upon defendant’s bad character. (736) Defendant contracted with a U.S. agency to supply and ship powdered milk to the Sudan, but instead shipped “milk replacer,” a product not fit for human consumption. After pleading guilty, he stated falsely that most of the $936,000 he received had been disbursed to his suppliers when in fact the money had been transferred to an account he controlled. He also falsely denied owning the house in which he lived. The 2nd Circuit affirmed an upward departure based upon defendant’s failure to make restitution and his concealment of assets. Defendant devised an elaborate fraudulent scheme designed to protect him from fines, restitution orders and civil suits so as to ultimately secure the full benefit of his crime. Thus, the upward departure was also motivated by defendant’s continuing dishonesty and greed. The Sentencing Reform Act did not abolish consideration of the character of the defendant at sentencing. Only in circumstances that are other than “ordinary” should such values affect the sentence, and in such cases, the degree of impact on the sentence should be governed by reasonable discretion. U.S. v. Merritt, 988 F.2d 1298 (2nd Cir. 1993).
2nd Circuit rejects youthful lack of guidance, harsher federal penalties, as basis for departure. (736) The 2nd Circuit affirmed the refusal to depart downward based on defendant’s youthful lack of guidance, the prosecution’s choice of federal jurisdiction, and the enhanced penalties for crack-related crimes. Although the 9th Circuit upheld youthful lack of guidance as a basis for a downward departure, the Sentencing Commission amended section 5H1.12 to reject this as a ground for a downward departure. A departure based on a prosecutor’s choice of federal rather than state jurisdiction is not permissible, because choice of forum is an exclusive function of a prosecutor’s discretion. Finally, a departure based upon the enhanced penalties for crack is not permitted because the harsher penalties reflect a rational aim of deterring drug transactions involving crack. Crack is the most addictive and destructive form of cocaine. U.S. v. Haynes, 985 F.2d 65 (2nd Cir. 1993).
2nd Circuit remands to reconsider downward departure for extraordinary family circumstances. (736) 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 affirms downward departure based on defendant’s efforts at drug rehabilitation. (736) The 2nd Circuit affirmed a downward departure from 51 months to probation, based on defendant’s efforts at drug rehabilitation. The court rejected the view that rehabilitation is no longer a goal of sentencing. Although the Sentencing Reform Act rejects imprisonment as a means of promoting rehabilitation, Congress expressed no hostility to rehabilitation as an objective of sentencing. The court also rejected the argument that the sentencing commission gave adequate consideration to drug rehabilitation in promulgating section 5H1.4 or section 3E1.1. The departure in this case was proper. The judge did not depart simply because defendant entered a rehabilitation program: he considered all pertinent circumstances, including the nature of defendant’s addiction, the characteristics of her program, the progress she was making, the objective indications of her determination to rehabilitate herself, her therapist’s assessment of her progress, and hazards of interrupting that progress. U.S. v. Maier, 975 F.2d 944 (2nd Cir. 1992).
2nd Circuit upholds downward departure based upon family circumstances. (736) 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 rejects ineffective assistance of counsel claim based upon failure to request downward departure. (736) The 2nd Circuit rejected defendant’s claim that he had received ineffective assistance of counsel because of his attorney’s failure to request a downward departure based upon the fact that his wife was expecting twins and the smaller sentence his co-defendant received. Family ties and responsibilities are not ordinarily relevant in determining whether to depart downward. The fact that a co-participant in the offense received a lower sentence is not a basis for a downward departure. U.S. v. Javino, 960 F.2d 1137 (2nd Cir. 1992).
2nd Circuit finds record ambiguous as to whether judge was aware of his ability to depart. (736) Defendant requested a downward departure based on several grounds, including extraordinary family ties, lack of sophistication in completing the crime, potential for victimization in jail, and the fact the crime was an aberration from defendant’s normal behavior. The district court denied defendant’s request. The 2nd Circuit agreed that the grounds discussed gave the district court legal authority to depart downward, and remanded because it was unclear from the record whether the court was aware of its ability to depart. The judge stated: “I have the authority, but I really don’t think that if I did so–I believe I would be violating the law. . . . The Court’s got the authority to depart from the guidelines whenever it feels it can do so justifiably and within the meaning of the interpretation of the guidelines through the courts and the statutes itself. I don’t think I have a case where I can.” U.S. v. Ritchey, 949 F.2d 61 (2nd Cir. 1991).
2nd Circuit affirms downward departure based on defendant’s vulnerability to prison assaults. (736) The district court found that defendant had a “feminine cast to his face and a softness of features which will make him prey to the long-term criminals with whom he will be associated in prison.” Relying on the decision in U.S. v. Lara, 906 F.2d 599 (2nd Cir. 1990), the court sentenced him to 33 months, one-third the applicable minimum term. The 2nd Circuit affirmed. The fact that defendant, unlike the defendant in Lara, was neither gay nor bisexual was not relevant, since homophobic attacks are often based upon the perception that an individual is gay. The fact that defendant had not yet been victimized was also not relevant, since it makes more sense to allow judges to prevent violence before its occurs. Finally, the court rejected the contention that even if the decision to depart was permissible, the district court should only have lowered defendant’s sentence to 95 months, which would have ensured that defendant would be placed in a level one “minimum security” prison. Judge Winter dissented, finding that Lara held that a departure was warranted only where the sole means of protecting a vulnerable prisoner was solitary confinement. U.S. v. Gonzalez, 945 F.2d 525 (2nd Cir. 1991).
2nd Circuit affirms extraordinary family circumstances as ground for downward departure. (736) 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 reverses upward departure based upon defendant’s status in the community. (736) Defendant, a lawyer and part-time judge, was convicted of perjury and tax evasion in connection with his acceptance of secret payments from the operator of a dump site. The district court departed upwards based on the “totality” of the circumstances, including the duty defendant owed to his community as a local judge and lawyer, the fact that in spite of his status as a community leader he gave perjured testimony, and the delay such testimony caused the state’s efforts to investigate and clean up the dump site. The 2nd Circuit found that none of these reasons were grounds for an upward departure. The Sentencing Commission expressly rejected consideration of a defendant’s socioeconomic status as a factor at sentencing. A defendant’s education is relevant only to the extent that the defendant misused special training in perpetrating his crime. Although disruption of a government function may be grounds for an upward departure, this is not true in cases such as perjury or obstruction of justice where “interference with a government function is inherent in the offense.” Judge Feinberg concurred in part and dissented in part, disagreeing with the majority’s conclusion that it is “impermissible per se to consider a defendant’s status as a prominent holder of public office” as a ground for departure. U.S. v. Barone, 913 F.2d 46 (2nd Cir. 1990).
2nd Circuit upholds downward departure based on defendant’s lack of sophistication and employment history. (736) 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 defendant’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).
2nd Circuit finds downward departure justified by defendant’s “extreme vulnerability” in prison. (736) Although the defendant was 22 years old, he looked 16 and was a “delicate looking young man, with a certain sweetness about him.” At his resentencing, defense counsel said that he had been victimized as a consequence of his diminutive size, immature appearance and bisexual orientation. He said that two other inmates were attempting to coerce defendant into becoming a male prostitute. The head of the jail unit responded to this event by placing defendant in solitary confinement–also known as “the hole.” The district court ruled that these factors were not adequately considered by the Sentencing Commission, and accordingly he departed downward from the sentencing guidelines. The 2nd Circuit affirmed, holding that “it is plain that the Commission did not consider vulnerability to the extent revealed in this record–where the only means for prison officials to protect [defendant] was to place him in solitary confinement.” Senior district judge Metzner dissented. U.S. v. Lara, 905 F.2d 599 (2nd Cir. 1990).
3rd Circuit holds sentence is reasonable even if defendant may not live long enough to serve it. (736) Before his sentencing for bank robbery, defendant submitted evidence that he had AIDS and a long history of substance abuse. A psychological evaluation found that defendant was borderline mentally retarded, and noted that his diminished cognitive functioning could have been caused by developmental factors, alcohol and drug abuse, or AIDS. Defendant had an offense level of 29 and fell into criminal history category VI, for a sentencing range of 151 to 188 months. The district court sentenced defendant to 120 months. The Third Circuit rejected defendant’s contention that the sentence was unreasonable because, in light of his condition, it amounted to a death sentence. The court held that the district court properly considered and applied the factors in 18 U.S.C. § 3553(a), and it found that “the mere fact that a defendant may not survive beyond his sentence does not provide a basis for a shorter sentence.” U.S. v. Watson, 482 F.3d 269 (3d Cir. 2007).
3rd Circuit upholds downward departure based on charitable works. (736) Defendant organized a youth football team in a depressed urban area. He coached and mentored the boys who played for him, often driving them back and forth to the suburbs for practice. He paid for four players to attend a suburban high school, making efforts to find a school that would accept all four boys as a group. He extensively mentored one of the boys and paid for him to go to college, finding a second college for him when he did not get enough playing time on the first college’s football team. The Third Circuit affirmed the downward departure. Defendant’s acts were “not the detached acts of charity one might ordinarily expect from a wealthy business executive. They are, in a very real way, hands-on personal sacrifices, which must have had a dramatic and positive impact on the lives of others.” Judge Sloviter dissented. U.S. v. Cooper, 394 F.3d 172 (3d Cir. 2005).
3rd Circuit rules that charitable works of minister who stole from his church did not warrant departure. (736) Defendant, the pastor of a church, was convicted of a number of offenses related to his theft of funds belonging to his church. Although a defendant’s charitable works are not ordinarily relevant in determining whether to depart, § 5H1.11, a district court may grant a downward departure if a defendant has made civic or charitable contributions “to an exceptional degree or, in some way, that makes the case different from the ordinary case in which the factor is present.” U.S. v. Serafini, 233 F.3d 758 (3d Cir. 2000). Here, the district court recognized that defendant’s contributions to the community were “profound,” “substantial,” and “sustained,” but the court nonetheless denied the motion. Defendant performed these acts as part of his daily function as pastor, and the court could not permit defendant “to hide behind the very community from whom he stole.” The court held that defendant’s net charitable and civil contributions, taking into account both the good and bad that he did in his capacity as a member of the clergy, could not be considered as so extraordinarily positive as to warrant a downward departure. The Third Circuit agreed with this analysis and with the district court’s conclusion that the requested downward departure was not permitted. U.S. v. Wright, 363 F.3d 237 (3d Cir. 2004).
3rd Circuit finds court erred in ruling that it lacked discretion to depart downward for family situation. (736) 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 upholds downward departure for legislator’s community and charitable activities. (736) Defendant, a state legislator, was convicted of perjury based on his false testimony before a federal grand jury investigating election law violations. The Third Circuit affirmed a downward departure for defendant’s community and charitable activities. Such departures are discouraged but not forbidden by the guidelines. USSG § 5H1.11. The letters describing defendant as a good person, and referring to his activities as a state legislator, did not provide an adequate basis for departure. However, the letters describing defendant’s assistance to individuals and local organizations did provide an adequate basis for the departure. These letters described defendant’s generosity to friends and constituents in unique and meaningful ways during times of serious need. Although defendant was wealthy, and part of his largesse was financial, the departure was not improperly based on socioeconomic status. The district court found that all of defendant’s contributions, not merely his monetary ones, were exceptional. This case was distinguishable from U.S. v. Morken, 133 F.3d 628 (8th Cir. 1998), where the court essentially found that, given Morken’s station in life, his contributions were not extraordinary. Here, defendant’s good deeds were of a different nature and degree than the somewhat impersonal giving in Morken. The district court found that defendant’s acts of personal kindness and good works were above and beyond customary political or charitable giving. U.S. v. Serafini, 233 F.3d 758 (3d Cir. 2000).
3rd Circuit holds that court correctly understood discretion to depart for extraordinary physical ailment. (736) Defendant was diagnosed with AIDS in July 1998. At sentencing, he contended that this condition was an extraordinary physical impairment warranting a departure under § 5H1.4. The Third Circuit held that it lacked jurisdiction to review the district court’s refusal to depart. The transcript revealed that the court declined to depart because defendant committed the instant crime after his AIDS diagnosis and because he could obtain adequate medical care while incarcerated. Although one statement by the district court suggested the court incorrectly believed that a terminal illness can never serve as a basis for departure, when viewed in the entire context of the sentencing hearing, this statement did not reflect the district court’s rationale for not departing. U.S. v. Hernandez, 218 F.3d 272 (3d Cir. 2000).
3rd Circuit rejects downward departure for mother of five, including one with Tourette’s Syndrome. (736) 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 refusal to provide funds for psychiatrist. (736) The district court denied defendant’s request for CJA funds to retain a psychiatrist. Defendant had wanted a psychiatrist to testify at sentencing in support of his motion for a downward departure based on his mental and emotional condition and his diminished capacity. The Third Circuit upheld the refusal to provide the money for a psychiatrist, ruling that the facts did not merit a downward departure. Defendant claimed that his mental and emotional condition was due to the murder of his father when defendant was only five and his extensive abuse of drugs and alcohol. However, § 5H1.4 states that drug or alcohol dependency or abuse is not a reason for a downward departure. Section 5H1.12 states that lack of youthful guidance is not grounds for departure. Thus, the facts of defendant’s case did not warrant a departure. U.S. v. Roman, 121 F.3d 136 (3d Cir. 1997).
3rd Circuit remands to consider departure for post-conviction rehabilitation. (736) In 1991, defendant was convicted of drug and firearms charges based on a conspiracy in which he was involved while 17-18 years old. More than five years later, he successfully moved under § 2255 to vacate the firearms conviction. At resentencing, defense counsel sought a downward departure because defendant was only 17 when he joined the conspiracy, and since being jailed, he had earned a GED and nine college credits. The district court said it would seriously consider a departure based on defendant’s efforts to turn himself around, but that age was an impermissible ground for departure. The Third Circuit remanded for the court to consider a downward departure for defendant’s post-conviction rehabilitation. Previous Circuit cases have held that § 5H1.1 prohibits departures based on age except in extraordinary circumstances. The district court found the facts of defendant’s case were not sufficiently extraordinary to permit a departure. However, post-offense rehabilitation efforts, including those that occur post-conviction, may constitute a sufficient ground for departure where those efforts are exceptional. U.S. v. Sally, 116 F.3d 76 (3d Cir. 1997).
3rd Circuit upholds downward departure for mental anguish defendant felt for causing son to be convicted of crime. (736) 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 rejects downward departure despite risk to business with 30 employees. (736) The district court departed downward because it believed that defendant’s incarceration would cause his business to fail and result in the loss of about 30 jobs and other economic harm to the community. The 3rd Circuit reversed, holding that this departure was inconsistent with section 5H1.2, which provides that departures based on a defendant’s “vocational skills” are generally not permitted. Defendant’s supposedly unique ability to keep his business operating would qualify as a vocational skill. Section 5H1.2 represents the Sentencing Commission’s conclusion that the goals of punishment outweigh the goal of protecting society from the harm that it might suffer if it is deprived of defendant’s work-related contribution. U.S. v. Sharapan, 13 F.3d 781 (3rd Cir. 1994).
3rd Circuit says court may depart downward for defendant solely responsible for care of mentally ill wife. (736) 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 holds that in exceptional circumstances specific offender characteristics can support downward departure. (736) Defendant requested a downward departure based in part upon his young age, his steady employment and his stable employment record. The district court ruled that these factors were considered by the guidelines, and therefore it lacked discretion to depart on these grounds. The 3rd Circuit held that in extraordinary circumstances, the guidelines permit a downward departure on the stated grounds. Since it was not clear whether the district court believed defendant’s circumstances were not extraordinary or whether the district court thought defendant’s circumstances were extraordinary but that it could not depart, the case was remanded for resentencing. U.S. v. Higgins, 967 F.2d 841 (3rd Cir. 1992).
3rd Circuit rules Korean immigrant did not present facts warranting a downward departure based upon cultural differences. (736) Defendant, a Korean immigrant, attempted to bribe an IRS agent with $5,000 after being advised that he owed $27,000 in tax deficiencies and penalties. He urged the district court to depart downward based upon the cultural differences between Korea and the United States. The 3rd Circuit, assuming without deciding that in some cases cultural differences might justify a downward departure, found defendant did not present such a case. Defendant had been in the country for 12 years and was a naturalized citizen when he committed the offense. He was a professional tax preparer who had accumulated property and thus had some familiarity with United States laws. He had some college level and legal education in this country, and extensive education in Korea. Defendant almost admitted that he knew his actions were a crime. The obvious conclusion was that defendant was motivated by a desire to save $22,000, not his belief that he was culturally bound to offer the bribe. Judge Becker dissented. U.S. v. Yu, 954 F.2d 951 (3rd Cir. 1992).
3rd Circuit rejects downward departure based upon work history, family responsibility, role in community affairs. (736) 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 reverses downward departure based on defendant’s youthfulness, cooperation with authorities and family responsibilities. (736) Defendant was classified as a career offender based on three prior felonies, two of which occurred within several months of each other when defendant was 18 years old. The district court departed downward based on defendant’s youthfulness and immaturity at the time he committed two of the prior offenses, the short time span between the commission of the offenses, defendant’s prior cooperation with authorities and his dependent child. The 3rd Circuit reversed, finding that all of these factors were adequately considered by the Sentencing Commission. A defendant’s cooperation is not grounds for departure absent a government motion. A defendant’s family responsibilities are also not ordinarily relevant. Judge Rosenn, dissenting, would have permitted a downward departure, and argued for a more flexible application of the career offender guidelines. U.S. v. Shoupe, 929 F.2d 116 (3rd Cir. 1991).
3rd Circuit finds “single parent” status not grounds for downward departure. (736) Defendant was a single mother with five children under the age of 11. The district court denied a downward reduction on the basis of defendant’s family ties and responsibilities on the ground that it lacked legal authority. The 3rd Circuit affirmed, noting that § 5H1.6 provides that family ties and responsibilities are “not ordinarily relevant” in determining whether a departure is justified. Although the “not ordinarily relevant” language suggests that “in extreme circumstances” departure based on family ties and responsibilities may be permissible, defendant did not present extreme circumstances. The imprisonment of a single parent is not extraordinary. Imposition of a prison sentence normally disrupts parental relationships. U.S. v. Headley, 923 F.2d 1079 (3rd Cir. 1991).
3rd Circuit rejects downward departure based on post-arrest drug rehabilitation efforts. (736) Defendant, who was convicted of selling stolen treasury checks, admitted that he was a heroin addict and that this addiction motivated him to sell the stolen treasury checks. The district court departed downward because it found that defendant had made a conscientious effort to overcome his heroin addiction, and that sentencing him to jail would disrupt his drug rehabilitation efforts. The 3rd Circuit reversed, finding that this was not an acceptable ground for a downward departure. The policy statement to § 5H1.4 provides that “[d]rug dependence or alcohol abuse is not a reason for imposing a sentence below the guidelines.” Therefore, separation from such addiction is also not a ground for a downward departure. Since only those addicted to drugs would be eligible for such a departure, a downward departure would reward defendants for being addicted. Although incarceration could interrupt a defendant’s drug rehabilitation efforts, this is also not a proper basis for departure, since the guidelines represent a shift away from a rehabilitative system of penology. U.S. v. Pharr, 916 F.2d 129 (3rd Cir. 1990).
3rd Circuit affirms ruling that circumstances did not warrant downward departure. (736) Defendant argued that she was entitled to a departure from a sentence for a drug conspiracy because of her “cooperation with the government, absence of a prior record, exemplary work history, lifetime of love and devotion to friends and family,”‘ and “extreme hardship the guidelines sentence” would work to her family. The district court stated “I find nothing here that permits me to depart from the guidelines . . . The best I can do with those [factors] is to apply them to my choice of where within the guidelines the sentence would fall.” The 3rd Circuit affirmed the sentence, holding that to the extent the defendant was arguing that the district court misapplied the guidelines by finding that it did not have the authority to depart on these factors, the district court was correct. U.S. v. Denardi, 892 F.2d 269 (3rd Cir. 1989).
4th Circuit rejects family circumstances departure where defendant’s care was not “irreplaceable.” (736) 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 says court was aware of authority to depart for charitable works. (736) Defendant contended that the district court erred in denying his motion for a downward departure based on his extraordinary good works. In support of his motion, he submitted numerous letters from different persons listing examples of benevolent acts on his part. The Fourth Circuit refused to review the matter, concluding that the district court did not erroneously believe it lacked the legal authority to depart. Section 5H1.11 provides that charitable works or public service are not ordinarily relevant to deciding whether to depart. A district court may depart based on a discouraged factor only where that factor is present to an exceptional degree. The district court said that it was not presented with any information upon which it could justify a downward departure. This statement did not show the court erroneously believed it lacked authority to depart. U.S. v. Aramony, 166 F.3d 655 (4th Cir. 1999).
4th Circuit rejects family ties departure despite overcoming past to become responsible parent. (736) Defendant pled guilty to a drug conspiracy. His PSR noted that he had had “insufferable demands” placed upon him as a child as a result of drug-induced parental neglect. After becoming a father at age 14, defendant demonstrated responsibility by refusing to allow the child to become a ward of the state, and assumed a responsible and consistent parenting role. Section 5H1.12 bars a downward departure based on lack of youthful guidance. The district court departed under § 5H1.6, finding that the way in which defendant rose above his upbringing to take responsibility for his own children showed extraordinary family ties. The Fourth Circuit reversed. Defendant’s family situation was not extraordinary. He was 21, living with a 16-year old and their 3-month old child. He also had fathered 3 other children, ages 6, 4, and 3, who resided with their mother. Other than mentioning defendant’s disadvantaged upbringing, the district court gave no reason for concluding that defendant’s family responsibilities were unusual. U.S. v. Wilson, 114 F.3d 429 (4th Cir. 1997).
4th Circuit reverses downward departure based on confluence of six factors. (736) The district court departed downward based on the confluence of six factors: (1) defendant was a highly decorated war veteran, (2) he had a nine year old son with neurological problems and a wife with fragile mental health, (3) he was a recovering alcoholic, (4) his offense was not serious, (5) his imprisonment would be “more onerous” because he was a law enforcement officer, and (6) his status as a convicted felon prohibited him, as an experienced firearms instructor, from ever touching a firearm again. The Fourth Circuit reversed. Defendant’s alcohol problem was a “forbidden” basis for departure under § 5H1.4. His family responsibilities and military record were not generally relevant under §§ 5H1.11 and 5H1.6. A departure based on factors 4 and 5 would be inconsistent with the guidelines. Defendant was convicted of “real fraud.” Law enforcement officers, as a class, are not entitled to more favorable treatment. Finally, the effects of defendant’s status as a convicted felon were not atypical. Job loss or disqualification are not sufficient to warrant a downward departure. U.S. v. Rybicki, 96 F.3d 754 (4th Cir. 1996).
4th Circuit remands to allow parties to address court’s sua sponte departure for family ties. (736) The district court made a sua sponte decision to depart downward for extraordinary family ties under § 5H1.6. Defendant related well to his severely mentally retarded sister, provided invaluable care for her and her mother, and was crucial to the structure and stability of the family. The Fourth Circuit found that these circumstances were not extraordinary in light of Circuit precedent, but remanded to allow defendant and the government to further develop the record on this possible ground for departure. A district court should depart from the guidelines only after both the government and the defendant have received proper notice. U.S. v. Maddox, 48 F.3d 791 (4th Cir. 1995).
4th Circuit agrees that status as single custodial parent did not justify downward departure. (736) 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. (736) 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 upholds downward departure based upon defendant’s severe physical handicap. (736) Defendant was convicted of being a felon in possession of a firearm. The government appealed the district court’s decision to depart downward based on defendant’s severe physical handicap and impose probation rather than a term of imprisonment. The 4th Circuit upheld the downward departure. In the Korean War defendant had lost both of his legs below the knee. The trial judge had found that this medical impairment required treatment at the VA Hospital, and that incarceration would jeopardize this treatment. “Consideration of such an extraordinary medical problem in deciding to impose a sentence other than imprisonment is specifically authorized” by guideline § 5H1.4. U.S. v. Greenwood, 928 F.2d 645 (4th Cir. 1991).
4th Circuit reverses downward departure based on drug dealer’s charitable contributions and community relations. (736) 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. Community 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 remands where unclear whether judge believed he lacked authority to depart downward. (736) Defendant argued that the sentencing judge did not consider defendant’s tragic personal background and family history as grounds for downward departure because the judge mistakenly believed the guidelines prohibited downward departures on these grounds. The 4th Circuit found the record unclear and remanded the case. The sentencing judge had stated that defendant’s background was “clearly relevant in criminal sentencing prior to the sentencing reform act, but such policy on departures under the Act destroys the whole purpose of the Act.” U.S. v. Deigert, 916 F.2d 916 (4th Cir. 1990).
4th Circuit reverses downward departure for family ties although defendant was sole custodial parent. (736) 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).
4th Circuit holds departure downward based on age was clear error. (736) Defendant was a 23 year old male. The district court departed downward based partly on defendants age, pursuant to guidelines § 5H1.1. The 4th Circuit reversed, ruling that there was nothing extraordinary about defendant’s age and to depart on the basis of age was clear error. U.S. v. Summers, 893 F.2d 63 (4th Cir. 1990).
4th Circuit holds that age is not ordinarily relevant for sentencing purposes. (736) The 4th Circuit held, inter alia, that § 5H1.1 of the guidelines made it clear that age is ordinarily not relevant for sentencing purposes, and that therefore it could not rule in favor of a drug defendant who argued that his age should have been considered by the sentencing court. U.S. v. Daiagi, 892 F.2d 31 (4th Cir. 1989).
4th Circuit vacates downward departure for white collar defendant which was based on lack of prior record and keeping defendant’s job. (736) It was improper for the District Court to depart from the confinement requirement based upon the defendant’s lack of a prior record, and the economic desirability of attempting to preserve the defendant’s job so as to enable him to make restitution. These factors are adequately considered by the guidelines and are not proper grounds for departure, although they may properly be used to determine the appropriate term within the proper range. There was nothing atypical about this white collar crime case which would warrant departure. U.S. v. Bolden, 889 F.2d 1336 (4th Cir. 1989).
4th Circuit rules district court’s discretion to depart will not be reviewed for purposes of increasing departure. (736) A drug defendant received a 67 month downward departure but argued on appeal that it should have been greater. The 4th Circuit affirmed the sentence. The main reason for the departure was proper: to “remedy unwanted sentence disparities among defendant’s with similar records who have been found guilty of similar conduct.” (See 18 U.S.C. § 3553(a)(6).) However, the district court was free to conclude that further departure was not warranted given (1) the significantly larger quantity of LSD sold by the defendant compared to that sold by the co-defendants and (2) the defendant’s superior position in the organization. The defendant’s cooperation with the government was already given ample consideration. Additionally, family ties and “unstable upbringing” simply are not proper grounds for departure. Finally, the comparatively low street value of the drugs the defendant attempted to sell are not to be considered in making departures; the guidelines already definitively speak on issues of drug quantity and quality. U.S. v. Daly, 883 F.2d 313 (4th Cir. 1989).
5th Circuit allows court to consider defendant’s age in deciding whether to depart. (736) At defendant’s sentencing hearing, the district court imposed a 20-year below-Guidelines sentence, stating that it was sufficient for a 48-year old man. The case was remanded for resentencing because the court erroneously refused to apply a particular enhancement. After the enhancement was applied, defendant’s offense level was 43, which translated into life imprisonment under the Guidelines. The court imposed a sentence of life imprisonment, finding that age alone was not a sufficient reason to vary. The Fifth Circuit held that the court erred in finding that it lacked discretion to consider defendant’s age in deciding whether to depart or vary. Guideline § 5H1.1 does state that age is not ordinarily relevant in determining whether to depart, except when the defendant is elderly and infirm. The district court’s belief that its disagreement with § 5H1.1 was not an appropriate consideration was inconsistent with Kimbrough v. U.S., 128 S.Ct. 558 (2007) and other recent Supreme Court cases. U.S. v. Simmons, 568 F.3d 564 (5th Cir. 2009).
5th Circuit holds that HIV-positive status did not constitute “extraordinary physical impairment.” (736) The district court departed downward from the guidelines on the grounds that (1) defendant’s HIV-positive status constituted an extraordinary medical condition under § 5H1.4, and (2) the prosecutor’s disclosure in open court of defendant’s HIV-positive status was malicious and endangered defendant’s safety. The Fifth Circuit reversed. The court failed to offer any explanation for why defendant’s medical condition should be treated as an exceptional one. Other circuits have found that a defendant’s HIV-positive status alone is insufficient to justify a departure under § 5H1.4. The court’s finding that the prosecutor deliberately and maliciously made comments that endangered the defendant’s safety was wholly unsupported by the record. The court never explained how it knew that the prosecutor’s comments would lead to such danger, and did not order any special security precautions, which suggested that it was not overly concerned about his safety. The finding that the prosecutor acted deliberately and maliciously was also clearly erroneous. No rule prohibits a prosecutor from disclosing or discussing a defendant’s HIV-positive status at sentencing, and the court never ordered confidentiality at sentencing or took any steps to preserve confidentiality at sentencing. U.S. v. Castillo, 430 F.3d 230 (5th Cir. 2005).
5th Circuit holds that downward departure based on cultural assimilation was not reversible plain error. (736) Defendant was convicted of being unlawfully present in the U.S. after being deported. The district court granted defendant a downward departure based on cultural assimilation. See U.S. v. Rodriguez-Montelongo, 263 F.3d 429 (5th Cir. 2001). Defendant was brought to the United States at age three by his parents and continuously lived here, where he was educated and worked, becoming fluent in English. Defendant had virtually no ties to Mexico: his family did not reside there and he had spent virtually no time there. Reviewing the departure for plain error, the Fifth Circuit affirmed. There was evidence to support the departure. U.S. v. Castillo, 386 F.3d 632 (5th Cir. 2004).
5th Circuit allows downward departure in civil rights case but reverses as to extent. (736) 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 lacks jurisdiction to review refusal to make charitable works departure. (736) Defendant argued that the district court erred in refusing to depart for his exceptional record of public service and charitable good deeds. The Fifth Circuit held that it lacked jurisdiction to consider this issue. Moreover, even if the court were to consider the question, defendant faced “an uphill battle” under § 5H1.11, which provides that civic, charitable, or public service and similar prior good works are not ordinarily relevant in determining whether to depart. The court did not abuse its discretion in refusing to deem defendant’s work “exceptional” and reduce his sentence. U.S. v. Hemmingson, 157 F.3d 347 (5th Cir. 1998).
5th Circuit reverses departure for physical conditions, military service, employment and disagreement with guidelines. (736) Defendant, a prison guard, attempted to persuade another guard to lie about the beating of a prisoner. The Fifth Circuit reversed a downward departure that had been based on defendant’s physical condition (sarcoidosis, a chronic inflammation of multiple organs), his decorated military service in Vietnam, his distinguished service at the prison, and the court’s belief that the punishment did not fit the crime. Defendant’s medical condition did not need any particular type of treatment and required only follow up observation. This did not constitute an extraordinary physical impairment under § 5H1.4. Section 5H1.11 provides that military service is not ordinarily relevant in determining whether to depart. Defendant’s two purple hearts and distinguished service did not take his case out of the heartland of cases. An employment record is also not an appropriate ground for departure. Finally, a court’s disagreement with the punishment provided for in the guidelines is not enough to justify a downward departure. U.S. v. Winters, 105 F.3d 200 (5th Cir. 1997).
5th Circuit finds nothing extraordinary about family circumstances to warrant departure. (736) 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 rehabilitative efforts did not warrant downward departure. (736) Defendant had a long history of drug and alcohol abuse. He had previously participated in nine treatment programs. He requested a downward departure based on participation in a current treatment program. The district court believed that it lacked the authority to depart downward on this basis, but further stated that it would not depart in this case even if it had discretion to do so. The Fifth Circuit agreed that defendant’s rehabilitative efforts did not warrant a downward departure. Since the district court stated it would not depart even if it had the authority, the appellate court limited its review to the factual finding that a departure was not warranted. This finding was not clearly erroneous, in light of defendant’s history of alcohol and drug abuse and his previous failed attempts at treatment. U.S. v. Akin, 62 F.3d 700 (5th Cir. 1995).
5th Circuit says court’s statement did not indicate it misunderstood its departure ability. (736) Defendant argued that the district court mistakenly believed that it lacked authority to depart downward based on her health problems and family responsibility. The Fifth Circuit found that the district court’s comments showed only that it believed that the penalty for defendant’s crack offense was too harsh. The comments did not show that the district court believed that a departure for health and family reasons was warranted but not permitted. Moreover, the specifics of defendant’s claim (52 years old, heart problems, high blood pressure and responsibility for elderly mother) did not warrant a downward departure. U.S. v. McKinney, 53 F.3d 664 (5th Cir. 1995).
5th Circuit vacates departure based on 43-year-old’s age, character and family responsibilities. (736) Defendant’s offense level of 44 mandated a guideline sentence of life imprisonment. The trial court only sentenced defendant to 240 months, stating that it believed a 20-year sentence was long enough in light of the fact that the 43-year old defendant would be 64 or 65 when he got out of prison. The 5th Circuit reversed, since under § 5H1.1 age is an improper basis for departure unless the defendant is elderly and infirm at the time of sentencing. Defendant was in good health and not under a doctor’s care or taking any medication. Defendant’s character, family responsibilities and community ties were also improper grounds for a downward departure. U.S. v. Fierro, 38 F.3d 761 (5th Cir. 1994).
5th Circuit says defendant’s status as single mother of two young children did not warrant departure. (736) 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, 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 holds post-conviction community service did not warrant downward departure. (736) The district court departed downward because of the extent of defendant’s community service since conviction, which included worldwide musical performances, organizing benefit shows for various social service and charitable organizations, and working in a music program in the local public schools. The 5th Circuit held that defendant’s post-conviction community service did not warrant a downward departure. He engaged in the type of community service he did because of the skills he developed as a professional musician. Under sections 5H1.2 and 5H1.5, a defendant’s professional and vocational skills and a defendant’s employment record are not ordinarily relevant in determining whether to depart. Moreover, a departure decision based on evidence about a defendant’s character, whether it relates to his character before or after conviction, is inconsistent with the guidelines. U.S. v. O’Brien, 18 F.3d 301 (5th Cir. 1994).
5th Circuit vacates departure based on youth, culpability of co-defendant, and criminal history. (736) The district court departed from the guidelines sentence, but the 5th Circuit found none of the proffered reasons acceptable. The Commission has “normally eliminated” age as a basis for departure. Moreover, the greater culpability of a co-defendant may be the basis for an adjustment under section 3B1.2 and therefore cannot support the district court’s departure. Finally, the court disagreed with the trial judge’s conclusion that defendant’s criminal history score overrepresented her criminal past, stressing that defendant’s prior crimes were serious and continued up to the date of the instant offense and that defendant had been arrested five times that were not reflected in her score. The case was remanded for the court to consider whether other grounds for departure existed. U.S. v. Madison, 990 F.2d 178 (5th Cir. 1993).
5th Circuit refuses to review failure to depart based on unusual family hardship. (736) The 5th Circuit refused to review the district court’s refusal to depart based on defendant’s unusual family hardship. Even if the district court erroneously relied upon section 5H1.10, the court also made an independent finding that defendant’s family situation was not so extraordinary as to require a departure downward under the general rule. Because the district court’s refusal to make an exception from the guidelines’ policy and depart downward was not a violation of the law, the sentence would not be disturbed. U.S. v. Carr, 979 F.2d 51 (5th Cir. 1992).
5th Circuit finds nothing extraordinary about defendant’s age or health to justify downward departure. (736) Defendant argued that the district court should have departed downward from the guidelines because of his advanced age and poor health. The 5th Circuit upheld the refusal to depart. Although the language in sections 5H1.1 and 5H1.4 suggests that there may be extraordinary circumstances where age and health may be relevant to the sentencing decision, there was nothing about defendant’s age (55) or health (cancer in remission, high blood pressure, a fused right ankle, an amputated left leg, and drug dependency) that would justify such a departure. The judge’s statement that “the only way we’re going to take care of this man’s health problems is to keep him locked up because his self-cure is not very good” did not show the judge refused a downward departure because of defendant’s health problems. U.S. v. Guajardo, 950 F.2d 203 (5th Cir. 1991).
5th Circuit reverses downward departure based upon defendant’s young age. (736) The district court departed downward from 151 months and sentenced defendant to 120 months because of defendant’s young age (18). The 5th Circuit reversed, holding that the guidelines have adequately taken into consideration a defendant’s age in section 5H1.1. This section specifies extremely limited circumstances under which age may be the basis for a departure. Being young is not a permissible consideration under the guidelines. U.S. v. White, 945 F.2d 100 (5th Cir. 1991).
5th Circuit rejects downward departure based upon defendant’s family history. (736) Defendant argued that the district court erred in refusing to depart downward due to the corrupting influence of her family history. At the sentencing hearing, defendant offered evidence that her stepfather had sexually abused her as a child and that this experience and her mother’s denial of it predisposed her to commit the instant offense. The 5th Circuit found that the district court properly determined that this was not an adequate ground for a downward departure. Although the district judge found that defendant’s home life was shocking and repulsive, he also found that her family background did not cause her to commit the current offense. There was no violation of the principles of 18 U.S.C. § 3661, which provides that no limit shall be placed on information concerning a defendant’s background in sentencing. “Although a court may consider any information not legally prohibited, it is not free to ignore the mandate of the guidelines in formulating the sentence which such information produces.” U.S. v. Vela, 927 F.2d 197 (5th Cir. 1991).
5th Circuit reverses upward departure based on defendant’s alcohol dependency. (736) The 5th Circuit ruled that the district court failed to elucidate any extraordinary aspects of the defendant’s alcohol dependency that would justify a departure from the guidelines. The court’s statement “it’s just amazing to me that no injury has been done” could not justify a departure from the guidelines. The sentencing guidelines consider the occurrence of injuries in the course of bank robberies and would have provided for an increased offense level if such injuries occurred. U.S. v. Miller, 903 F.2d 341 (5th Cir. 1990).
5th Circuit holds guideline sentencing is based upon offense, not character. (736) The 5th Circuit held that guidelines sentences are to be based on the characteristics of the offense committed, not the character of the defendant. Thus, it was improper for the district court to depart from the appropriate range because it “found” that “there is something good in [the defendant].” Such sentencing considerations “partake of the model of penology that Congress rejected in the Sentencing Reform Act.” U.S. v. Reed, 882 F.2d 147 (5th Cir. 1989).
5th Circuit rules heroin addiction is not ordinarily grounds for departure. (736) The 5th Circuit held that the fact that a defendant is addicted to heroin is not ordinarily grounds for departure, under § 5H1.4. However, it left open the possibility that it might be if it were so “extraordinary” as to be beyond that considered by the Commission. U.S. v. Lopez, 875 F.2d 1124 (5th Cir. 1989).
5th Circuit rules departure based on education and socio-economic status was improper. (736) The district court stated that it was departing from the guidelines because defendant was “one of the top persons, scholastically speaking,” was a “gifted, talented individual,” and because “the system [had] not been harsh with [him].” The Fifth Circuit ruled that it was “clear from these stated reasons that the court was sentencing [defendant] based upon his education and his socio-economic status.” Since “[t]he guidelines do not permit such distinctions,” a sentence based on these factors is unreasonable under 18 U.S.C. § 3742(e) (2). U.S. v. Burch, 873 F.2d 765 (5th Cir. 1989).
5th Circuit holds drug addiction is not a mitigating circumstance which warrants departure. (736) An LSD dealer argued that the trial court should have recognized his lengthy history of drug addiction as grounds for departure. The 5th Circuit disagreed. Sections 5H1.4 and 5K2.13 (diminished capacity) of the guidelines adequately consider drug use as a sentencing factor as required by 28 U.S.C. § 994(d)(5). In addition, the Commission recognized that “substance abuse is highly correlated to a propensity to commit crime.” Thus, sentencing deviations based upon this factor should be granted with “extreme reluctance.” Because the defendant failed to raise this issue below and establish a record on which the 5th Circuit could consider if departure was warranted, relief was unobtainable. U.S. v. Taylor, 868 F.2d 125 (5th Cir. 1989).
6th Circuit affirms departure to one-day sentence where defendant was “irreplaceable” to her family. (736) 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, 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 holds that defendant’s family responsibilities were not exceptional. (736) The district court made a 13-level departure to account for defendant’s family circumstances. A family assessment submitted by defendant’s psychiatrist stated that defendant had a “significant role in the upbringing of her sister’s five children, four of whom were under the age of 18. The report opined that defendant’s absence, even for a limited period, “would wreak havoc to the children’s beneficial development,” and lead to “serious emotional problems for each child, whose growth and development” was intrinsically tied to defendant. The Sixth Circuit reversed, finding defendant’s family circumstances similar to “the innumerable cases in which parents commit crimes and are sentenced under the Guidelines.” Given that defendant did not live with her sister’s children nor did she financially support them, her responsibility for them fell far short of that of a typical parent, much less a typical single parent. The district court did not address the contention that, prior to her conviction, defendant spend one to several months a year in Jamaica. If defendant’s family responsibilities permitted her to take extended vacations to Jamaica without the children every year, then her responsibility to her sister’s children was not exceptional. U.S. v. Reed, 264 F.3d 640 (6th Cir. 2001).
6th Circuit holds that decision to make only five-level family responsibilities departure was not reviewable. (736) In response to the defense’s request for a sufficient downward departure that would allow defendant to remain with his family, the judge asked “have you ever found a Court of Appeals case where they sustained a 14 level downward departure?” The judge later stated that “as far as my reading of the guidelines is concerned … the fact that [defendant was] the only one prosecuted in the federal system” should not be taken into account as grounds for a departure. Ultimately the court departed downward by five levels based on defendant’s extraordinary family circumstances. Defendant challenged the extent of the departure, arguing that the district court misunderstood its ability to depart in light of U.S. v. Coleman, 188 F.3d 354 (6th Cir. 1999). In Coleman, an en banc court held that a trial judge cannot categorically exclude any non-prohibited factor from consideration for a downward departure. The Sixth Circuit held that the district court properly understood its discretion to depart, so its decision to make only a five-level departure based on defendant’s extraordinary family responsibilities was not reviewable. The judge’s statements demonstrated the “judge’s cognizance of the high standard of proof needed to justify such a drastic departure from the Guidelines.” U.S. v. Schulte, 264 F.3d 656 (6th Cir. 2001).
6th Circuit says financial contributions to community cannot support downward departure. (736) The district court found that defendant’s extraordinary community involvement and community support warranted a four-level departure. Defendant participated in 12 civic and charitable organizations. A flood of letters stated that defendant was a dedicated family man and a dependable philanthropist in the community. Since the case was remanded on other grounds, the Sixth Circuit directed the district court to determine whether defendant’s “community involvement” was substantially financial, in which case it was not a proper ground for departure. Contributions of money cannot be a ground for departure because then the factor becomes one involving defendant’s socioeconomic status, i.e., his wealth and his ability to donate to various civic and charitable causes. Consideration of that factor is prohibited by the guidelines. USSG § 5H1.10. However, if defendant’s community involvement involved significant contributions of defendant’s time and personal skill and involvement, and the court determines that the circumstances are extraordinary, the court may depart again. U.S. v. Tocco, 200 F.3d 401 (6th Cir. 2000).
6th Circuit directs court to reconsider downward departure for age and illness. (736) The district court determined that defendant’s age, 72 years, and variety of health problems (arteriosclerotic disease, coronary artery disease, hypertension, renal insufficiency, labrynthitis, and diverticulosis) warranted a downward departure. The Sixth Circuit concluded that defendant’s age alone did not warrant a substantial departure. Defendant was portrayed as remaining active in civic and charitable affairs and in carrying on a number of business interests. Moreover, while is possible “that an aged defendant with a multitude of health problems may qualify for a downward departure under § 5H1.4,” such departures are rare. The district court must make more specific findings as to whether defendant has “an extraordinary physical impairment” or combination of impairments, worthy of departure. The court should obtain independent and competent medical evidence to determine the extent of defendant’s infirmities and the prison system’s ability to accommodate them. Moreover, the court should consider its decision in co-conspirator Corrodo’s case when deciding whether to depart. The court declined to depart for Corrado despite seven bypass operations, circulation problems, and diabetes. U.S. v. Tocco, 200 F.3d 401 (6th Cir. 2000).
6th Circuit requires findings on defendant’s involvement in care of sick wife and alternate sources of support. (736) The district court departed in part because of defendant’s “family ties,” specifically his need to be with his ill wife, who had cancer and emphysema. Since the case was being remanded on other grounds, the Sixth Circuit instructed the district court to make specific findings regarding defendant’s personal involvement in the care of his wife or other family members. The court should consider whether the wife had alternate sources of support other than defendant. Defendant had eight adult children, seven of whom lived in the area and one of whom was a doctor. U.S. v. Tocco, 200 F.3d 401 (6th Cir. 2000).
6th Circuit denies physical impairment departure for defendant with non-advanced AIDS. (736) Defendant appealed the district court’s denial of a downward departure for “an extraordinary physical impairment” under § 5H1.4. The Sixth Circuit ruled that it had no authority to review the decision since the district court was aware of its authority to depart but simply found that the facts did not warrant a departure. Although defendant had AIDS, the district court did not feel that defendant’s condition had progressed to the point where a downward departure would be legally justifiable. Defendant was able to function in the normal prison population and appeared to be in fairly good health. Moreover, the court found that even if his condition did constitute an extraordinary physical impairment, a downward departure was not appropriate considering the seriousness of the offense. The district court relied on U.S. v. Thomas, 49 F.3d 253 (6th Cir. 1995), which concluded that AIDS alone is not an extraordinary physical impairment. This showed that the court knew it had the authority to grant defendant a downward departure under § 5H1.4, but declined to do so on the facts. Therefore, the district court’s decision was not reviewable. U.S. v. Owusu, 199 F.3d 329 (6th Cir. 2000).
6th Circuit cannot review refusal to depart for sentencing entrapment. (736) Defendant argued that the district court should have departed downward due to sentencing entrapment, claiming officers waited to arrest him until after sufficient sales had been made to meet mandatory minimum sentence requirements. A district court’s failure to depart downward on the basis of sentencing entrapment due to its finding that facts in the record militate against a downward departure is unappealable. U.S. v. Jennings, 83 F.3d 145, 153 (6th Cir.), amended, 96 F.3d 799 (6th Cir. 1996). In this case, the district judge “found nothing … that would make me believe that I could find by a preponderance of the evidence that there was sentencing entrapment.” The Sixth Circuit found the alleged error unappealable. U.S. v. Watkins, 179 F.3d 489 (6th Cir. 1999).
6th Circuit rules that deafness alone cannot serve as basis for § 5H1.4 departure. (736) Defendant argued that his deafness coupled with his primary means of manual communication was an extraordinary physical impairment that qualified him for a § 5H1.4 departure. The district court found § 5H1.4 inapplicable after erroneously finding defendant was subject to a mandatory minimum sentence. The Sixth Circuit refused to remand the departure issue to the district court, holding that deafness, without more, cannot serve as the basis for a § 5H1.4 departure. A physical impairment must be truly extraordinary to justify a § 5H1.4 departure. The district court recommended that the BOP take defendant’s disability into consideration and place him at a facility equipped to handle his needs. Defendant did not allege that prison services were inadequate to accommodate his disability, or that the prison had failed to protect him against attackers. U.S. v. Russell, 156 F.3d 687 (6th Cir. 1998).
6th Circuit directs court to make more specific findings about defendant’s physical impairment. (736) The district court departed downward because it found that the 65-year-old defendant had a number of medical problems that suggested it would be less expensive and in the public interest to confine him in a community correction center rather than prison. The court relied on letters from defendant’s physician and psychiatrist suggesting that incarceration would have detrimental effects on defendant’s health. The Sixth Circuit remanded for more specific fact-finding as to defendant’s medical condition. It was possible that an aged defendant with a multitude of health problems might qualify for a departure under § 5H1.4. However, the court should make more specific findings as to whether defendant has an extraordinary physical impairment or combination of impairments. Defendant might need to produce more evidence to determine the extent of his infirmities and the prison system’s inability to accommodate them. U.S. v. Johnson, 71 F.3d 539 (6th Cir. 1995).
6th Circuit rejects HIV positive status as grounds for downward departure. (736) Defendant requested a downward departure based on the fact that he was HIV positive. Although he had not yet developed AIDS, he argued that he only had 5.8 years left to live, and that his 110-month sentence represented almost 200% of his life expectancy. The Sixth Circuit held that a defendant’s HIV positive status, by itself, was not a proper ground for departure. Only an extraordinary physical impairment may justify a sentence other than imprisonment under § 5H1.4. Neither AIDS nor any other life threatening illness is such a physical impairment. The Bureau of Prisons has the medical personnel and facilities needed to care for defendant. Defendant would only be entitled to a departure if his HIV had progressed into advanced AIDS, and then only if his health could be termed an “extraordinary physical impairment.” U.S. v. Thomas, 49 F.3d 253 (6th Cir. 1995).
6th Circuit says mother of 14-month old did not have extraordinary circumstances. (736) Defendant argued that she was entitled to a downward departure because of her youth, because she was the mother of a 14-month old infant, and because her crime consisted of unwittingly signing for a package containing cocaine. The Sixth Circuit disagreed. The fact that defendant’s infant might suffer as a result of defendant’s incarceration was not an extraordinary circumstance under § 5H1.6. Age is not relevant in the determination of a sentence. The judge, like the jury, did not believe that defendant was unaware of the contents of the package. U.S. v. Calhoun, 49 F.3d 231 (6th Cir. 1995).
6th Circuit finds white collar criminal’s civic and charitable deeds insufficient to depart. (736) Defendant fraudulently caused adulterated orange juice to be introduced into interstate commerce. The district court departed downward based on defendant’s community ties, civil and charitable deeds, and prior good works. The 6th Circuit held that these circumstances were not sufficiently unusual to warrant a downward departure. It is usual and ordinary, in the prosecution of similar white-collar crimes involving high-ranking executives, to find that a defendant was involved as a leader in community charities, civic organizations, and church efforts. The guidelines already considered the nature of white-collar crime and criminals when setting the offense levels. U.S. v. Kohlbach, 38 F.3d 832 (6th Cir. 1994).
6th Circuit suggests possibility of departure based on AIDS. (736) Defendant argued that the district court was unaware that it had discretion to depart downward on the ground that he was suffering from AIDS. Since the case was being remanded on other grounds, it was unnecessary for the 6th Circuit to decide whether, in fact, this would be a proper ground for a downward departure. The court noted, however, that the guidelines could justify a downward departure under certain circumstances. Section 5H1.4, for example, contemplates downward departures for “extraordinary physical impairment.” U.S. v. Streat, 22 F.3d 109 (6th Cir. 1994).
6th Circuit rejects downward departure based on suicidal tendencies and ability to make restitution. (736) The district court departed downward and sentenced defendant to probation, because it found that defendant’s mental and emotional condition was “far beyond the limits [it] ordinarily encounter[ed] in criminal sentencing,” and it feared that incarceration might end in defendant’s suicide. The court also found that a prison sentence would frustrate any meaningful hope of restitution. The 6th Circuit reversed, finding that none of these reasons were an appropriate ground for a downward departure. A rule permitting a downward departure where restitution is at issue and is a meaningful possibility would generally apply only in white collar crimes and cause disparate sentences based upon socioeconomic status. Permitting departures based upon self-professed suicidal tendencies would result in such claims be-coming “virtual boilerplate” in defendant’s arguments before sentencing judges. U.S. v. Harpst, 949 F.2d 860 (6th Cir. 1991).
6th Circuit rejects downward departure based on defendant’s ownership of business. (736) Defendant pled guilty to 18 counts of knowing discharge of pollutants into a public sewer system. The district court departed downward and imposed probation and community service because defendant owned another business employing 26 people, and the business might fail if defendant were incarcerated. The 6th Circuit reversed, finding this was an improper ground for a downward departure. The court found “nothing special” about defendant’s circumstances. “The very nature of the crime dictates than many defendants will likely be employers, whose imprisonment may potentially impose hardships upon their employees and families.” The fact that a “harsh” fine had already been imposed was also not a ground for departure from the guidelines, since the guidelines have already taken fines into consideration. Finally, the fact that the downward departure made his sentence “uniform” with his co-defendants did not justify the departure, since there was a basis for the disparity. The co-defendants pled guilty to negligent, rather than knowing, violations of the Clean Water Act, and received reductions based on their minor roles in the offense. U.S. v. Rutana, 932 F.2d 1155 (6th Cir. 1991).
6th Circuit reverses downward departure, finding all eight bases for departure improper. (736) Defendant bank tellers were convicted of embezzlement. The district court based its downward departure on the following factors: (1) community support, (2) the defendant’s remorse, (3) promptness of restitution, (4) community involvement, (5) lack of criminal history, (6) defendants were mothers with young children, (7) the bank president recommended clemency, and (8) incarceration would serve no useful purpose. The 6th Circuit rejected each basis for departure as improper, and reversed the sentence. Judge Merritt dissented. U.S. v. Brewer, 899 F.2d 503 (6th Cir. 1990), overruled on other grounds by Koon v. U.S., 518 U.S. 81 (1996).
6th Circuit holds refusal to depart from guidelines for family ties and responsibilities was not abuse of discretion. (736) 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 reverses where court failed to consider family circumstances. (736) 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 holds that court’s overemphasis on restitution and unspecified charitable works resulted in unreasonable sentence. (736) Defendant, the president of a federally insured bank, used his position to misappropriate bank funds for himself and his friend. Despite an advisory range of 41-51 months’ imprisonment, and the prosecutor’s recommendation of 24 months (in its § 5K1.1 motion), the district court sentenced him to just one day in prison, three years’ supervised release, and a $100,000 fine. The court found that there was no need to protect the public from defendant, that defendant had done unspecified “good works,” and there was no need to rehabilitate him or deter him from committing future crimes. Moreover, because the crime was money-motivated, the court thought that just punishment for defendant would be to hit him in the pocketbook. The Seventh Circuit reversed. First, the court did not explain why it granted the § 5K1.1 motion or how much of the reduced sentence was attributable to defendant’s substantial assistance as opposed to the other factors cited by the court. Second, although the court sufficiently considered the § 3553(a) factors, the court’s consideration of these factors resulted in an unreasonable sentence. Charitable works must be exceptional before they will support a more-lenient sentence – it is not unusual to find white collar defendants who are high-ranking executives involved as a leader in community charities and civic organizations. In addition, the amount of restitution defendant actually paid under the complex settlement agreement was unclear. The repayment of stolen funds figures into the adjustment for acceptance of responsibility, but only extraordinary efforts to make restitution support a reduced sentence. U.S. v. Repking, 467 F.3d 1091 (7th Cir. 2006).
7th Circuit rejects departure based on combination of factors. (736) The Seventh Circuit held that a two-level downward departure based on a combination of factors was not warranted. All of the factors but one reflected defendant’s nationality: he would be in prison far from his family; he might be ineligible for transitional release, such as a halfway house; and once the sentence ended, he might spend time in custody awaiting deportation. Section 5H1.10 provides that national origin is not relevant to the sentence. Moreover, defendant was eligible for transfer to the United Kingdom under the Strasbourg Convention but had not sought its benefits. Therefore, he could not complain about the distance to his family, diminished access to transitional release, or the potential for extra detention pending deportation. The only factor unrelated to defendant’s citizenship was his health. However, although defendant suffered from skin cancer and heart disease, the district court believed that these would be as treatable in prison as outside. None of these reasons, individually or in combination, justified a departure. U.S. v. Mallon, 345 F.3d 943 (7th Cir. 2003).
7th Circuit rejects departure based on illness allegedly contracted while in jail. (736) While in jail, defendant developed a serious respiratory problem that resulted in two hospitalizations and the surgical removal of one lung. The district court rejected defendant’s request for a downward departure, finding that “unless there is some indication that the Bureau of Prisons is not capable of attending to any particular health needs … that is not a grounds [sic] for departure. It makes no difference to this Court nor to the guidelines that any illness or ailment was contracted pretrial or during trial.” Since the court found that the Bureau of Prisons could provide defendant with the needed medical care, and exercised its discretion to deny him a downward departure, the Seventh Circuit ruled that it had no jurisdiction to review the decision in that context. However, the district court addressed his illness only in light of U.S. v. Sherman, 53 F.3d 782 (7th Cir. 1995), which authorized departures where needed medical care would not be available if incarcerated. The court did not consider whether the circumstances of defendant’s illness provided a ground for departure outside of Sherman. Defendant argued that the seriousness of his illness and the fact that he contracted it while in federal custody took his case outside of the guidelines’ heartland. However, in order for his illness to constitute additional punishment for his offense, defendant had to show that the government somehow caused the illness, either through negligence or by design. Defendant failed to provide such evidence. U.S. v. Hirsch, 280 F.3d 811 (7th Cir. 2002).
7th Circuit holds that defendant did not establish extraordinary physical impairment. (736) The court concluded, based upon a psychiatrist’s testimony (not a cardiologist), that 69-year old defendant had four physical infirmities: chronic cardiovascular disease, chronic peripheral vascular disease with hypertension, obstructive pulmonary disease, and lower back pain with lumbar and lumbosacral origin. The court gave defendant a one-level departure for each of these four conditions, and a fifth-level for the four in combination. The judge acknowledged that none of the four conditions alone would justify a departure but believed that the combination did so. The Seventh Circuit reversed because defendant did not establish that his condition was either “debilitating” or “extraordinary,” and thus the departure conflicted with §§ 5H1.1 and 5H1.4. Section 5H1.1 says that age may not be the basis of a departure unless the defendant is “elderly and infirm,” referring for further guidance to § 5H1.4. This provides that only “an extraordinary physical impairment” may be a reason to depart. However, many septuagenarians have conditions similar to defendant’s. If a medical condition is extraordinary in the sense that a prison medical facility cannot cope with it, then a departure may be appropriate. Here the district court found that the Bureau of Prisons could treat defendant’s conditions. U.S. v. Krilich, 257 F.3d 689 (7th Cir. 2001).
7th Circuit holds that departure based on defendant’s cultural heritage was abuse of discretion. (736) Defendant was a Mexican woman who helped her boyfriend in a drug conspiracy. The district court departed downward by 25 levels because of defendant’s “cultural heritage.” It found that Mexican cultural norms dictated defendant’s submission to her boyfriend’s will. Moreover, she had taken up with him in defiance of her family’s wishes and it would have been humiliating for her to break with him and return to her family, especially since she was pregnant with his child. The government argued that the departure was barred by § 5H1.10, which provides that “race, sex, national origin, creed, religion, and socio-economic status” are not grounds for a departure. The Seventh Circuit agreed that the government’s argument had “considerable force,” but found it unnecessary to decide whether such cultural factors can ever be the basis of a departure. Instead, the panel ruled only that the sentencing judge abused his discretion in granting this defendant such a departure. What the judge regarded as a matter of cultural heritage was just the joinder of gender and national origin, two expressly forbidden grounds for departure. Because defendant was a Mexican woman, she may have been more likely to participate in her boyfriend’s criminal activity than if she had been an Anglo male. To use that as a basis for departure would wreak havoc on § 5H1.10. U.S. v. Guzman, 236 F.3d 830 (7th Cir. 2001).
7th Circuit cannot review where court found family circumstances not extraordinary. (736) 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 upholds finding that defendant’s medical condition warranted downward departure. (736) After reviewing medical records, watching a videotaped deposition of defendant’s cardiologist, observing defendant at trial and during sentencing, and listening to in-court testimony of both defendant and his mental health therapist, the district court concluded that imprisonment posed a substantial risk to defendant’s life and therefore departed downward under § 5H1.4. The government contended that defendant’s physical condition was not an “extraordinary physical impairment” under § 5H1.4 and that the Bureau of Prisons (BOP) could provide adequate medical care to defendant. The Seventh Circuit held that the district court did not abuse its discretion in concluding that defendant’s medical condition warranted a downward departure. Unlike the cases cited by the government, the district court made particularized findings that defendant was entitled to a departure under § 5H1.4. Moreover, the district court found that the BOP’s letter was merely a form letter trumpeting the BOP’s ability to handle medical conditions of all kinds. U.S. v. Gee, 226 F.3d 885 (7th Cir. 2000).
7th Circuit rejects family ties departure where even after reduction, release would be too late to help child. (736) A clinical psychologist submitted a report that defendant’s seven-year old son became “anxious and depressed as a result of learning that his mother may possibly not continue to live with him” and that this anxiety had led to a conflict with a school classmate and a decrease in academic performance. Citing defendant’s extraordinary family circumstances, the district court departed downward from a range of 235-293 months to a sentence of 170 months. The Seventh Circuit reversed, finding nothing extraordinary about defendant’s family circumstances. Normal children react adversely to learning that their parents will be absent for years. However, “the guidelines do not contemplate a discount for the parents of children.” U.S. v. Stefonek, 179 F.3d 1030 (7th Cir. 1999). Moreover, reducing defendant’s sentence from 235 to 170 months was unlikely to help the child. There was nothing to suggest that the boy’s mental health would be improved by knowledge that his mother would be released when he was 19 rather than five years later. A downward departure for extraordinary family circumstances cannot be justified when, even after reduction, the sentence is so long that release will come too late to promote the child’s welfare. U.S. v. Wright, 218 F.3d 812 (7th Cir. 2000).
7th Circuit rejects departure based on sentencing disparity, community service and family. (736) The district court departed downward on three principal grounds: (1) to maintain some reasonable parity with a co-conspirator’s sentence; (2) to recognize the service that defendant had rendered to the community as a skilled and dedicated nurse; and (3) to recognize defendant’s extraordinary family circumstances. The Seventh Circuit remanded because the first two grounds were improper, the first in all circumstances and the second in the circumstances of this case. The third ground was also dubious. When two accomplices receive different sentences in accord with the guidelines, a court may not depart to preserve parity between the sentences. Although community service can be a ground for departure, in this case, it was based on service provided by the very businesses defendant used to violate federal law. As for the third ground, defendant was the single mother of a 12-year old child with learning problems that defendant assisted her in overcoming. Two experts gave unrebutted testimony that the learning problems would be aggravated by defendant’s absence. Nonetheless, the Seventh Circuit refused to affirm the sentence, since it did not know whether the judge would have departed on the basis of extraordinary family circumstances alone. U.S. v. Stefonek, 179 F.3d 1030 (7th Cir. 1999).
7th Circuit upholds refusal to depart for military service that occurred 25 years ago. (736) Defendant argued that the judge should have departed under § 5H1.11 based on his “exemplary military service.” The Seventh Circuit affirmed the denial of the departure. The judge determined that defendant’s military service, although exemplary, occurred 25 years ago and was not so extraordinary as to be a mitigation against his crime. U.S. v. Given, 164 F.3d 389 (7th Cir. 1999).
7th Circuit rules court was mistaken in believing it could not depart for level of participation in crime. (736) Defendant was convicted of drug charges. The judge said he was troubled by having to sentence defendant to ten years in prison, and that he would depart if he could depart. Defendant was 21 years old, had no criminal record, was not the principal offender and had made efforts to better himself before committing the crime. The Seventh Circuit held that the district court’s conclusion that it could not depart based on defendant’s level of participation was erroneous. Judges are discouraged from considering age, education and employment history unless the defendant’s case is “exceptional.” Defendant did not provide any evidence that his case met this definition. However, a defendant’s level of participation is an encouraged factor. However, if the encouraged factor is already taken into account by a role adjustment under § 3B1.2, the court should only depart if the factor is present to an exceptional degree. If the court chooses not to use § 3B1.2, it is inappropriate to rely on § 5H1.7 for a downward departure. Here, the probation officer did not recommend a role reduction, and the district court adopted the PSR’s findings without objection from defense counsel. U.S. v. Sewell, 159 F.3d 275 (7th Cir. 1998).
7th Circuit says finding of vulnerability to abuse in prison cannot be based on nature of crime. (736) Defendant pled guilty to transporting child pornography in interstate commerce. The district court departed downward in part because of defendant’s vulnerability to abuse in prison, finding that defendant was likely to be exposed to extraordinary punishment because of his crime, his sexual orientation, and his passive, meek demeanor. The court also found defendant’s charitable activities were extraordinary. The Seventh Circuit reversed, holding that a departure based on vulnerability to abuse in prison cannot be based on the nature of the crime. If courts permitted child pornographers to use the crime as a reason for a downward departure, then every child pornographer would be eligible for the departure. Although defendant was of average height and weight, on remand, the court may consider defendant’s sexual orientation and demeanor in determining his vulnerability to abuse. If it chooses to consider defendant’s charitable contributions, the court must remember not to reward a defendant for community service that enabled him to further his criminal intent. U.S. v. Wilke, 156 F.3d 749 (7th Cir. 1998).
7th Circuit affirms family circumstances departure even though facts not “compelling.” (736) 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. (736) 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 finds judge decided defendant’s rehabilitation was not extraordinary. (736) Defendant challenged the court’s failure to depart based on post offense rehabilitation. The Seventh Circuit refused to review the matter, finding the court was willing to assume that extraordinary post offense rehabilitation is a grounds for departure, but that defendant’s rehabilitative efforts were not extraordinary. The court made a discretionary decision to deny the requested departure and therefore the appellate court had no jurisdiction to review the decision. U.S. v. Lewis, 79 F.3d 688 (7th Cir. 1996).
7th Circuit says HIV-positive status alone does not justify § 5H1.4 departure. (736) Defendant, who was HIV positive but did not have full-flown AIDS, challenged the district court’s refusal to depart under § 5H1.4. The Seventh Circuit found no error, since an AIDS-afflicted individual is only entitled to a downward departure under § 5H1.4 when the disease has progressed to such an advanced stage that it could be characterized as an “extraordinary physical impairment.” U.S. v. Woody, 55 F.3d 1257 (7th Cir. 1995).
7th Circuit says findings not sufficient for departure based on obesity and asthma. (736) Defendant requested a downward departure under § 5H1.4 because of asthma and obesity. He testified that he weighed between 420-450 pounds, suffered from asthma, and had difficulty breathing during any slight physical activity, such as rising from a chair. Defendant had been receiving SSI payments for his obesity since 1991. The district judge, who also had asthma, departed downward, stating his belief that prison officials are not concerned about the health needs of asthmatics. The Seventh Circuit ruled that these findings were insufficient to support a § 5H1.4 departure. There was no evidence to support the judge’s concern that prison officials did not adequately treat asthmatics. Much of the judge’s rationale was based on his personal experience, rather than a medical assessment of the severity of defendant’s condition. U.S. v. Sherman, 53 F.3d 782 (7th Cir. 1995).
7th Circuit authorizes downward departure for extraordinary family circumstances. (736) 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 says “law of the case” prevented family circumstances departure below mandatory minimum. (736) The district court originally departed below the mandatory minimum to reflect defendant’s substantial assistance and unusual family circumstances. In the first appeal, the 7th Circuit reversed, ruling that the judge should not have considered defendant’s family circumstances. At resentencing, the district court explicitly refused to factor in defendant’s family circumstances. The 7th Circuit affirmed, ruling that an intervening change in the law did not require it to reexamine its previous holding. Although an amendment to section 5H1.6 authorized departures based on family circumstances, it did not affect the court’s holding that a departure from a statutory minimum sentence is only permitted based on assistance to the government. The court rejected the notion that once a downward departure from a statutory minimum sentence has been granted under 18 U.S.C. § 3553(e) or section 5K1.1, the sentence has been “opened” for departures based on additional grounds. U.S. v. Thomas, 11 F.3d 732 (7th Cir. 1993).
7th Circuit rules court failed to adequately explain downward criminal history departure. (736) The 7th Circuit ruled that the district court failed to adequately explain its reasons for a downward departure from criminal history category III to I. “Reasons” means something more than conclusions. Here, although the court concluded that defendant’s criminal history overrepresented his actual criminal conduct, the court did not explain which convictions did not warrant consideration. If the court accepted defendant’s counsel’s dubious argument that two different assault convictions against the defendant’s spouses and the driving while impaired conviction were insignificant, the court had to state why in order to justify the departure. Moreover, the court may have considered defendant’s employment record and family circumstances when deciding to depart. Such matters are not ordinarily relevant in determining whether to depart. U.S. v. Eiselt, 988 F.2d 677 (7th Cir. 1993).
7th Circuit affirms that court could not depart downward for defendant’s drug rehabilitation. (736) The 7th Circuit rejected defendant’s claim that the district court should have departed downward from the mandatory minimum sentence because of her substantial progress in a drug rehabilitation program. The mandate to the sentencing commission, 28 U.S.C. section 994(n), directed the commission to assure that the guidelines reflect the inappropriateness of imposing a sentence for the purpose of rehabilitating or providing the defendant with needed correctional treatment. Guideline section 5H1.4 provides that dependence or abuse is not a reason for imposing a sentence below the guidelines. U.S. v. Baker, 965 F.2d 513 (7th Cir. 1992).
7th Circuit rejects family responsibilities as grounds for departure. (736) 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).
8th Circuit affirms refusal to depart based on defendant’s back injury. (736) At sentencing, defendant argued for a downward departure due to extraordinary physical impairments under U.S.S.G. § 5H4.1. Defendant suffered from serious back problems after being robbed by two assailants in February 2010. He was diagnosed with mobile spondylolisthiesis, and experienced significant pain when sitting and standing. He could not stand or walk for more than seven or eight minutes without experiencing pain. The district court denied defendant’s motion and sentenced him to 235 months, the bottom of the advisory range. The Eighth Circuit held that the district court properly exercised its discretion in refusing to depart based on defendant’s serious physical disability to his back. The court discussed defendant’s back injury and medical history at length during sentencing in the context of a potential downward departure under U.S.S.G. § 5H1.4. The district court was aware of the authority to grant such a departure and chose not to do so, but gave defendant a sentence at the bottom of the applicable guidelines range. No constitutional violation was shown. U.S. v. Varner, 678 F.3d 653 (8th Cir. 2012).
8th Circuit holds court clearly erred in finding defendant had extraordinary physical impairment. (736) Defendant was in poor health, suffering from a number of heart and lung problems, diabetes, obesity and high blood pressure. Section 5H1.4 permits a downward departure based on a defendant’s extraordinary physical impairment. Such departures are discouraged, and should be limited to exceptional circumstances. The Eighth Circuit held that the district court clearly erred in finding that defendant suffered from an extraordinary physical impairment. A court departing under § 5H1.4 is supposed to ask (1) would the defendant’s physical condition make imprisonment more than normal hardship, (2) would imprisonment subject defendant to more than normal inconvenience or danger, and (3) does the physical condition have any substantial present effect on the defendant’s ability to function. The first and third questions were not in dispute. However, defendant’s only evidence on the second question regarding how imprisonment would affect his health was one doctor’s testimony that life in prison is more stressful than life outside of prison and defendant should avoid stress. In contrast, the director of a BOP medical center testified that while life in prison might be stressful, the BOP has the capability to help inmates cope with stress, and could provide defendant with any needed medication or necessary medical care. U.S. v. Coughlin, 500 F.3d 813 (8th Cir. 2007).
8th Circuit finds reasonable probability that sentence would have been shorter absent Booker error. (736) Defendant argued for the first time on appeal that the district court violated his Sixth Amendment rights by sentencing him under the guidelines and by finding facts that increased his offense level. To be eligible for plain error relief, defendant was required to show that the error affected his substantial rights by demonstrating a reasonable probability that he would have received a more favorable sentence absent the Booker error. The district court sentenced defendant to the bottom of the guideline range, although this fact alone did not give rise to a reasonable probability that his sentence would have been shorter. Nonetheless, the Eighth Circuit concluded that the district court’s comments showed such a probability. The court noted that the 292-month sentence was “probably a life sentence” for defendant in light of his “health and age” and declared, “[I]f I didn’t have to deal with these guidelines [defendant’s sentence] would likely be something significantly different.” The court also said that it was constrained to follow the guidelines, otherwise “the court of appeals … will make me put [the sentence] in [the guidelines] box, so what’s the point? Got to put [the sentence] in the box.” U.S. v. Whipple, 414 F.3d 887 (8th Cir. 2005).
8th Circuit agrees defendant did not prove he suffered from extraordinary physical impairment. (736) Defendant moved for a downward departure on the ground of an extraordinary physical impairment. The district court declined to depart, and the Eighth Circuit found no error. The district court was clearly aware of its departure authority under § 5H1.4. However, it found that defendant did not suffer from an extraordinary physical impairment because he failed to prove that the Bureau of Prisons would be unable to care for his medical needs. This finding was not clearly erroneous. Although defendant’s physical condition created special needs, he did not show that the needs were extraordinary in the sense that the Bureau of Prisons would be unable to accommodate his condition and provide proper medical care. The court did, however, commit Booker error by sentencing defendant under the assumption that the guidelines were mandatory. Defendant’s pre-Booker plea agreement expressly waived any challenge to the constitutionality of the guidelines. There was no plain error. U.S. v. Robinson, 409 F.3d 979 (8th Cir. 2005).
8th Circuit upholds family circumstances departure for defendant responsible for caring for autistic child. (736) 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. (736) 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 them-selves, were not of a kind or degree to justify a departure. U.S. v. Willey, 350 F.3d 736 (8th Cir. 2003).
8th Circuit rejects departure for physical and emotional abuse defendant suffered as child. (736) Defendant argued that the district court erred by failing to recognize its authority to grant him a downward departure based on the physical and emotional abuse he suffered as a child. The Eighth Circuit disagreed. As unfortunate as his childhood was, defendant did not show how his particular history of abuse made him an extraordinary robber exceptionally deserving of lenient treatment. A departure would have been an abuse of discretion. U.S. v. Rice, 332 F.3d 538 (8th Cir. 2003).
8th Circuit holds that departure based on defendant’s heart condition was abuse of discretion. (736) The district court found that defendant suffered from an extraordinary physical impairment (a heart condition), and departed downward by five years to impose a 175-month sentence. The Eighth Circuit held that the departure was an abuse of discretion. As the district court found, imprisonment would not subject defendant to more than normal inconvenience or danger. There was no support for the court’s finding that defendant’s physical impairment would have a substantial effect on his ability to function within the confines of a prison environment. Defendant’s heart problems obviously restricted the scope of his activities, but that would be no more the case in prison than in the outside world, and it was in the light of the prison environment that those restrictions must be weighed. The record simply did not support a finding that defendant’s physical impairment was so severe that it fell within the definition of § 5H1.4. Judge Bright dissented. U.S. v. Johnson, 318 F.3d 821 (8th Cir. 2003).
8th Circuit holds that care of elderly mother not sufficient to warrant downward departure. (736) 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 says failure to depart based on sentencing disparity and family circumstances not plain error. (736) Defendant argued for the first time on appeal that the district court should have granted him a downward departure. The Eighth Circuit found that defendant’s failure to request a downward departure at sentencing was fatal to his appeal. By failing to request a downward departure, defendant effectively waived this argument, and subjected his appeal, at best, to plain error review. Defendant was not entitled to a downward departure based on a disparity between his sentence and his co-defendants’ sentences. Defendant received the same 33-month sentence as his co-defendants. Moreover, disparity between sentence imposed on co-defendants is not a proper basis for departure. Defendant was not entitled to a downward departure based on his family circumstances. Although his wife was disabled and he was the sole support for his three children, his family circumstances were not so extraordinary as to take him out of the heartland. U.S. v. Carrasco, 271 F.3d 765 (8th Cir. 2001).
8th Circuit cannot review refusal to grant family circumstances departure. (736) 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 cannot review refusal to depart for physical impairment and family situation. (736) Defendant sought a downward departure based on an extraordinary physical impairment and an extraordinary family situation. See USSG §§ 5H1.4 & 5H1.6. The district court heard testimony by two doctors and defendant concerning his back and leg pain. Defendant and his wife also testified as to their financial condition and the difficulties of raising school-age children in a rural location. The court then concluded that defendant’s health and family situation were not sufficiently extraordinary and declined to depart downward. The Eighth Circuit ruled that the court’s decision not to depart was unreviewable, since the court was aware of its authority to depart. The court’s refusal to depart was an exercise of its sentencing discretion that was unreviewable on appeal. U.S. v. Orozco-Rodriguez, 220 F.3d 940 (8th Cir. 2000).
8th Circuit approves departure for education and community service in light of adversity on reservation. (736) While handcuffed in the back of a patrol car, defendant kicked the head of the police officer sitting in the front seat. Defendant later kicked the same officer in the groin area. He pled guilty to assault with a dangerous weapon (shod feet). The judge departed downward based on (1) the unusual circumstances of the case, and (2) the adversity defendant had faced on the reservation and the “remarkable resilience” he had nonetheless shown in his determination to succeed. At the time of the incident, defendant was only one semester way from receiving a college degree. Many of his teachers and colleagues sent letters about his great promise as a community leader and a role model. The Eighth Circuit, noting the district judge’s 30 years of experience on the bench, affirmed the departure. As in U.S. v. One Star, 9 F.3d 60 (8th Cir. 1993), it was the combination of the difficulty of life on the reservation and unusual nature of defendant’s educational record and community leadership that allowed for the departure. Moreover, while released on bond, defendant successfully completed an intensive in-patient treatment program, participated in an alcohol after-care program, and attended Alcoholics Anonymous meetings. U.S. v. Decora, 177 F.3d 676 (8th Cir. 1999).
8th Circuit says family ties and responsibilities not exceptional. (736) Defendant argued that the district court had authority to grant him a downward departure because he was gainfully employed, maintained a relationship with his son, had significant debts, and had an excellent reputation in the community. The Eighth Circuit found no basis to characterize defendant’s family circumstances as extraordinary or exceptional. He did not show that his family’s position differed substantially from that of other families similarly situated. U.S. v. Jones, 160 F.3d 473 (8th Cir. 1998).
8th Circuit departs for charitable activities. (736) The district court granted defendant a one-level departure based on defendant’s charitable activities. The Eighth Circuit upheld the district court’s finding that defendant’s charitable efforts were exceptional. Defendant brought into her own home two troubled young women, one of whom was a former employee who had stolen from defendant. The other was defendant’s niece, who had had difficulty living at home, and had dropped out of school. Defendant paid for the women to attend a private high school, and both had graduated and become productive members of society. Defendant also helped an elderly friend, unhappy living in a nursing home, move into an apartment near her home. She helped care for him, and he was able to live out his remaining years with greater independence. U.S. v. Woods, 159 F.3d 1132 (8th Cir. 1998).
8th Circuit reverses downward departure for community service. (736) 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 three 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 departure in child porn case for high intelligence, disruption of education and loss of career. (736) Defendant was convicted of receiving child pornography. The Eighth Circuit reversed a downward departure based on defendant’s high intelligence and candidacy for a doctoral degree in chemistry. A defendant’s intelligence is an unlisted factor for departure, and departures based on such factors should be highly infrequent. The fact that defendant’s conviction disqualified him from working as a forensic chemist for a law enforcement office as he had dreamed also did not warrant a departure. It is not unusual for a convicted felon to be barred from work in law enforcement. Also, interruption of an inmate’s education during incarceration is not unusual enough to warrant departure. Finally, the fact that defendant might be subject to abuse in prison because he was a child pornographer did not warrant a departure. U.S. v. Drew, 131 F.3d 1269 (8th Cir. 1997).
8th Circuit rejects departure for financial burden and susceptibility to abuse but affirms for rehabilitation. (736) Defendant exposed himself in front of a 13-year-old girl. In his truck and home, police found pictures and computer files of child pornography from the Internet. The district court departed downward based on the financial burden of defendant’s imprisonment on his family, his susceptibility to abuse in prison, and his post-offense rehabilitation efforts. The Eighth Circuit reversed, finding the first two reasons did not justify a departure, but that the third ground was valid. The financial burden on defendant’s wife and two children was to be expected when a family member engages in criminal activity that results in incarceration. The fact that defendant, as a child pornographer, would be susceptible to abuse in prison was not a ground for departure. Otherwise, every child pornographer would be eligible for a departure. Nevertheless, the district court did not abuse its discretion in finding defendant’s post-offense rehabilitation was exceptional. After 8 months of sex offender and chemical dependency treatment, the director of the sex offender treatment program was “extremely impressed” with defendant’s efforts, and believed that defendant had a high probability of success. His chemical dependency counselor had never had a client work harder than defendant and believed his prognosis was “very good.” Finally, a doctor experienced in addiction medicine described defendant’s recovery up to that point as “truly outstanding.” Since it was unclear whether the court would have departed absent the invalid factors, the case was remanded. U.S. v. Kapitzke, 130 F.3d 820 (8th Cir. 1997).
8th Circuit rejects family circumstances departure. (736) 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 says court recognized authority to depart based on economic hardship to innocent employees. (736) Defendant contended that the district court erred by not recognizing its authority to depart downward on the basis of economic hardship to innocent third parties, namely his family and the employees of his business. The Eighth Circuit held that the district court properly recognized its authority to depart in exceptional circumstances, even though family and community ties are not ordinarily relevant in determining whether to depart. The court stated that it considered defendant’s argument in support of a downward departure and concluded that there were no grounds that justified a departure in this case. U.S. v. Field, 110 F.3d 587 (8th Cir. 1997).
8th Circuit upholds refusal to depart for family circumstances. (736) Defendant was convicted of conspiring to possess and distribute methamphetamine. The Eighth Circuit upheld the district court’s refusal to depart based on defendant’s difficult family circumstances at the time he joined the conspiracy. Section 5H1.6 discourages downward departures based on family ties and responsibilities. The court properly determined that defendant’s situation was not exceptional enough to warrant a departure, especially since defendant continued his criminal conduct after his family situation improved. U.S. v. Crosby, 96 F.3d 1114 (8th Cir. 1996).
8th Circuit says AIDS was not an extraordinary physical impairment. (736) Defendant filed a motion for a departure under § 5H1.4 based on the fact that he had AIDS-Related Complex (“ARC”). The district court denied the motion, finding defendant’s condition was not an extraordinary physical impairment under § 5H1.4. The Eighth Circuit agreed, holding that although AIDS can be a basis for a departure where it has progressed to an advanced stage, defendant’s condition did not meet this standard. Defendant was not taking medication for any AIDS-related ailments. There was no evidence that imprisonment would worsen his condition or that he required special care. Judge Wilson dissented. U.S. v. Rabins, 63 F.3d 721 (8th Cir. 1995).
8th Circuit holds that care for wife with severe mental health problems presented extraordinary family situation. (736) 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 rejects downward departure based on good character and community service. (736) The district court departed downward based in part upon defendant’s exceptional character, as shown by his outstanding charitable and community service work. The 8th Circuit reversed. A general “good character” departure is not authorized by U.S. v. Big Crow, 898 F.2d 1326 (8th Cir. 1990). The Big Crow analysis is inapplicable where the defendant fails to show that he struggled in a difficult environment or otherwise overcame some significant hardship. Charitable or volunteer activities can serve as the basis for departure, but only where those activities are truly exceptional in nature. Defendant’s activities, while considerable, did not make him an atypical defendant in antitrust price-fixing cases. It appeared that high-level business executives enjoy sufficient income and community status so that they have the opportunity to engage in charitable and benevolent activities. U.S. v. Haversat, 22 F.3d 790 (8th Cir. 1994).
8th Circuit agrees that 62-year-old in good health was not entitled to downward departure. (736) Defendant argued that the district court should have departed downward based on his age (62) at the time of sentencing. The 8th Circuit found no error in the district court’s refusal to depart. Under sections 5H1.1 and 5H1.4, although there may be grounds to depart when a defendant is elderly and infirm, age and physical condition should not generally be taken into account in sentencing. The district court considered defendant’s age and concluded it was not relevant, and noted that defendant was in good physical condition. There was no evidence that defendant was “infirm” within the meaning of § 5H1.1. U.S. v. Rimell, 21 F.3d 281 (8th Cir. 1994).
8th Circuit rejects departure for first-time offender, nature of offense, age, and family responsibilities. (736) Finding the guideline range of 51 to 63 months “unduly harsh,” the district court departed downward to six months with work release, citing the absence of prior convictions, the “relatively minor” nature of the offense, defendant’s advanced age, and the need to care for his family. The 8th Circuit reversed. Section 4A1.3 notes that criminal history category I is reserved for first offenders. Defendant’s offense conduct under § 2S1.1 (advising a drug dealer client how to structure a cash deposit to avoid reporting requirements) was not merely technically unlawful. Although defendant was supporting three young sons, his family had multiple sources of income and a substantial net worth. Defendant was 67 years old and in good health, and thus his age also did not warrant a downward departure. However, on remand, the court should examine in closer detail whether defendant deserved a four level enhancement under § 2S1.1(b) based on knowledge that the laundered funds were illegal drug proceeds. Senior Judge Heaney dissented. U.S. v. Goff, 20 F.3d 918 (8th Cir. 1994).
8th Circuit rejects drug dependence as grounds for downward departure. (736) Defendant argued that the district court should have departed downward because his acquisition of cocaine was only to “feed his own drug habit” and he was not “in the business of crime.” The 8th Circuit rejected this, since under policy statement 5H1.4, drug dependence is not a reason for departing downward. U.S. v. Kirkeby, 11 F.3d 777 (8th Cir. 1993).
8th Circuit rejects drug dependence as grounds for downward departure. (736) Defendant argued that the district court should have departed downward because his acquisition of cocaine was only to “feed his own drug habit” and he was not “in the business of crime.” The 8th Circuit rejected this, since under policy statement 5H1.4, drug dependence is not a reason for departing downward. U.S. v. Kirkeby, 11 F.3d 777 (8th Cir. 1993).
8th Circuit rejects downward departure for hardship caused by chiropractor’s absence from rural community. (736) The district court departed downward to a combined sentence of work release and community service so that defendant’s special services as a chiropractor would remain available in his small rural community. The 8th Circuit held that the district court erred in finding that defendant’s absence from the community would impose such a significant hardship as to justify a departure. There was evidence that at least 23 other chiropractors within a 50-mile radius of defendant’s town and at least 35 chiropractors in a town 70 miles away were accepting new patients. This evidence did not even address the availability of other doctors. Judge Loken dissented. U.S. v. Groene, 998 F.2d 604 (8th Cir. 1993).
8th Circuit rules judge was aware of his ability to depart based on family circumstances. (736) The district judge refused to depart based on defendant’s family responsibilities. The 8th Circuit found the refusal to depart unreviewable since the judge was aware of his authority to depart. The judge’s reference to an earlier case indicated that he understood that under exceptional circumstances he possessed the discretion to depart downward, but that such circumstances were not present here. Senior Judge Bright concurred, finding no error in the refusal to depart, but noting that the circumstances might have supported a downward departure based on extreme hardship to defendant’s family. U.S. v. Vidrickson, 998 F.2d 601 (8th Cir. 1993).
8th Circuit defers to decision not to depart for family responsibilities. (736) Defendant’s husband was a severe diabetic, one of her children was hyperactive, and another had a speech disorder. Nevertheless, the sentencing judge concluded that defendant’s responsibilities did not constitute “extraordinary circumstances that would warrant a downward departure.” Recognizing the sentencing judge’s superior position to evaluate the evidence, the court found no basis for upsetting the decision. U.S. v. Scoggins, 992 F.2d 164 (8th Cir. 1993).
8th Circuit affirms lack of discretion to depart based on community and family ties. (736) The 8th Circuit affirmed the district court’s ruling that it lacked discretion to depart downward based on defendant’s community and family ties, a lack of prior criminal convictions, and defendant’s minimal role in the offense. Each of these reasons, individually or taken as a whole, was fully considered in the guidelines. U.S. v. Wesley, 990 F.2d 360 (8th Cir. 1993).
8th Circuit rules potential for victimization in prison may support departure, but not here. (736) Evidence was presented at sentencing that defendant had been physically and sexually abused by her father, brother and husbands, that defendant was stressed because of the prosecution of herself and members of her family. Moreover, defendant was 67 years old. From this the district court concluded that defendant was subject to being victimized in prison, and therefore departed downward to a sentence of three years home detention. The 8th Circuit agreed that the potential for victimization in prison can provide a proper basis for departure, but found that defendant did not present an appropriate case. One doctor testified that in women’s facilities victimization was rare outside those with dependent personality disorders and was rare outside the context of homosexual relationships. Elderly woman tended to be treated with respect as “grandmothers” and were not often victimized. U.S. v. Tucker, 986 F.2d 278 (8th Cir. 1993).
8th Circuit affirms downward departure for extreme vulnerability in prison. (736) The 8th Circuit affirmed the district court’s determination that an extraordinary physical impairment that results in a defendant’s extreme vulnerability to victimization in prison is a proper ground for a downward departure. The court rejected the government’s claim that the Bureau of Prisons could adequately protect defendant, since it never presented the district court with any evidence of the facilities available to defendant in prison. Defendant met his burden of justifying the departure by presenting the report of four doctors and the testimony of one of them; all of them stated that in prison defendant would be exceedingly vulnerable to victimization and potentially fatal injuries. Although these doctors may not have been familiar with the facilities available to defendant in prison, it was not clear error to rely upon these statements. U.S. v. Long, 977 F.2d 1264 (8th Cir. 1992).
8th Circuit affirms that age, employment history and family circumstances did not justify downward departure. (736) Defendant argued for a downward departure based on her age, her employment history and the fact that if she were incarcerated, her granddaughter would have to live with her mother, an alleged drug and alcohol abuser. Although it was unclear whether the district court exercised its discretion not to depart or whether it believed that it lacked discretion to depart, the 8th Circuit affirmed because the court lacked authority to depart. Defendant’s age alone (64) was not a permissible basis for departure. Her health was good, and defendant did not otherwise show her age to be an extraordinary circumstance. Similarly, defendant’s employment was not a permissible basis for departure when she otherwise showed no atypical circumstances. Finally, although extraordinary family circumstances may justify a departure, defendant’s situation was not extraordinary. U.S. v. Harrison, 970 F.2d 444 (8th Cir. 1992).
8th Circuit rejects downward departure based upon defendant’s status as a biracial adopted child. (736) Defendant pled guilty to armed bank robbery. The district court departed downward because of defendant’s adoptive background. Defendant is biracial, and was adopted at age 3 months by a white couple who did not realize that defendant was biracial. The 8th Circuit reversed, finding that a defendant’s race or family situation was an improper ground for a downward departure. Although defendant argued that the departure was based upon his emotional and mental condition, the 8th Circuit found that the district court did not rely upon this as a reason for the departure. The disparity between the guideline sentencing range for this offense and a lower sentencing range applicable to defendant in a pending bank fraud case was also not a proper ground for the departure. The pending case was for making false statements in connection with a bank loan, an offense which was not comparable to armed robbery. Judge Heaney, dissenting, would have affirmed the trial court’s exercise of discretion. U.S. v. Prestemon, 929 F.2d 1275 (8th Cir. 1991).
8th Circuit holds that circumstances of defendant’s failure to return from a furlough justified downward departure. (736) While on a 7-day furlough from a local correctional center, defendant became intoxicated and remained in that condition throughout her week-long furlough. She did not have enough money to purchase a ticket to return to jail as the conditions of her furlough required. However, she telephoned officials at the correctional facility and told them of her situation. The Bureau of Prisons extended the furlough but defendant still had no money to buy a bus ticket. Therefore, she was placed on escape status and arrested by police shortly thereafter. She then pled guilty to a charge of escape. Under the guidelines, the sentence range was 12-18 months and was required to be served consecutively. However, the district court imposed a four month sentence to be served concurrently with the underlying sentence and the government appealed the departure. The 8th Circuit affirmed the departure, holding that the unique circumstances of the defendant’s case properly justified a departure. Contrary to the government’s assertions, the court did not depart because the defendant was an alcohol abuser or because she was intoxicated during the furlough, but because it found that the officials charged with her custody and care knew of her addiction and irresponsibly released her into a situation “they knew or should have known she would be unable to handle”, that is, in supervised release following successful alcohol abuse treatment. U.S. v. Whitehorse, 909 F.2d 316 (8th Cir. 1990).
8th Circuit states that being a single mother of an infant does not entitle a defendant to a departure. (736) 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 responsibilities 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. (736) 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. (736) 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. sections 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. (736) 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).
9th Circuit upholds departure for sole caretaker of sick spouse. (736) 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 reverses downward departure in child porn case. (736) Defendant pleaded guilty to possession and distribution of child pornography. At sentencing, the district court departed downward seven levels on the grounds that defendant viewed the child pornography at home, not at work; that he segregated the computer files containing the pornography in a separate location on his computer to make them inaccessible to others; that he had never been involved in criminal conduct; that he had no history of drugs or sexual abuse; that he was educated; that he showed potential for rehabilitation and a longer period of incarceration would delay his entry into a rehabilitation program; and that he did not pose a risk of committing sexual offenses against children. On the government’s appeal, the Ninth Circuit reversed. It found that the district court had failed to compare defendant and his offense to other persons convicted of the same offenses and held that none of the factors on which the district court relied took defendant out of the heartland of defendants convicted of child pornography offenses. U.S. v. Thompson, 315 F.3d 1071 (9th Cir. 2002).
9th Circuit finds beatings, exposure to drugs, and sexual abuse was extraordinary childhood abuse. (736) Defendant argued that he was entitled to a downward departure because he had suffered extra-ordinary childhood abuse. He asserted that his father was an alcoholic who beat him; his mother cut him with a knife and encouraged him to use drugs and alcohol at an early age, and his cousin sexually abused him. The district court declined to depart, finding that the defendant was able to fend for himself from an early age and that there were inconsistencies in the factual record presented by the defendant. The Ninth Circuit reversed, finding that § 5H1.3 did not bar a departure because the abuse suffered by the defendant “appears … to be of the type of extraordinary circumstances that may justify consideration of the psychological effects of the childhood abuse.” U.S. v. Walter, 256 F.3d 891 (9th Cir. 2001).
9th Circuit finds male drug carriers were not treated more harshly than females in plea bargaining. (736) In U.S. v. Redondo-Lemos, 955 F.2d 1296 (9th Cir. 1992), the 9th Circuit remanded this case to determine whether the U.S. Attorney was violating equal protection by treating male drug carriers more harshly in plea bargaining than females. On remand, several AUSAs testified about their plea bargaining decisions as to the three defendants in this case and ten other cases the district judge cited to support his finding of gender-based selective prosecution. Despite testimony of neutral reasons for treating males and females differently, the district judge found discrimination, and departed downward from the mandatory minimum sentences. On appeal, the 9th Circuit reversed, rejecting the district court’s findings for lack of sufficient evidence, and stressing the “extreme deference the courts must give to prosecutorial charging decisions.” U.S. v. Redondo-Lemos, 27 F.3d 439 (9th Cir. 1994).
9th Circuit says mental illness may warrant a downward departure. (736) In remanding this case for a new trial on other grounds, the 9th Circuit noted in a footnote that the district court incorrectly concluded it was without authority to consider whether defendant’s mental illness was of such a nature that it was an “extraordinary circumstance” warranting a downward departure. See U.S. v. Roe, 976 F.2d 1216, 1218 (9th Cir. 1992). If the district court were to conclude that defendant’s mental illness qualified as an extraordinary case, it would be authorized to depart downward under U.S.S.G. section 5H1.3 and 5K2.0. U.S. v. Christensen, 18 F.3d 822 (9th Cir. 1994).
9th Circuit rejects departure based on fear that defendant’s children “would be placed at potential risk.” (736) 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 deter-mining” 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 finds that defendant’s blindness was not an extraordinary physical impairment. (736) Guideline section 5H1.4 states that extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range. Here, the district court found that defendant’s blindness was not an extraordinary physical impairment because the Bureau of Prisons could accommodate his blindness at the prison at Springfield. The 9th Circuit agreed, ruling that since defendant did not have an extraordinary physical impairment under section 5H1.4, the district court did not err in concluding that it had no discretion to depart downward from the guidelines. U.S. v. Martinez-Guerrero, 987 F.2d 618 (9th Cir. 1993).
9th Circuit finds extraordinary childhood abuse may justify departure. (736) In U.S. v. Roe, 976 F.2d 1216 (9th Cir. 1992), the 9th Circuit held that extraordinary childhood abuse constituted a valid ground for departure. In the present case, defendant, a career offender, offered into evidence a letter recounting his childhood of severe abuse and neglect. He also produced a psychologist’s report that concluded his childhood trauma was the primary cause of his criminal behavior. The 9th Circuit concluded that the district court acted under the erroneous impression it lacked authority to depart and remanded the case for resentencing. U.S. v. Brown, 985 F.2d 478 (9th Cir. 1993).
9th Circuit says past drug use should not affect time in custody. (736) The district court departed upward pursuant to section 5K2.0 for defendant’s prior drug use. The 9th Circuit reversed, holding that the introductory comments to the criminal history chapter, viewed in conjunction with section 5H1.4, showed that the Commission opted for a sentencing scheme that encourages defendants to admit and seek treatment for drug dependency, rather than treating defendants who have a history of drug abuse more severely. While drug addiction will influence the conditions of supervised release, “past drug abuse should not affect time in custody unless the defendant’s condition is so extraordinary that departure, rather than the measures discussed in section 5H1.4, is required.” Since there were no facts showing that defendant’s past drug use was exceptional, his sentence was vacated. U.S. v. Luscier, 983 F.2d 1507 (9th Cir. 1993).
9th Circuit refuses to depart for family ties and family member’s informing the police. (736) The district court ruled that defendant’s family circumstances were “not sufficiently unusual to justify departure.” The 9th Circuit upheld this decision as consistent with the guidelines’ policy to downplay the relevance of family ties. See U.S.S.G. section 5H1.6. “Moreover, since it was a discretionary refusal to depart downward it is not reviewable on appeal.” Similar considerations supported the refusal to depart downward because the defendant’s mother was the informant. “A family member’s informing the police is not a mitigating circumstance within the meaning of 18 U.S.C. section 3553(b) or U.S.S.G. section 5K2.0.” U.S. v. Shrewsberry, 980 F.2d 1296 (9th Cir. 1992).
9th Circuit upholds downward departure for abusive childhood. (736) Defendant pled guilty to bank robbery and received a sentence of 145 months. She appealed, arguing that the district court erred in refusing to depart downward based on her history of childhood abuse. As a youth, the defendant lived with her drug-addicted mother and her mother’s narcotics dealer boyfriend. The defendant was often beaten, routinely raped and sodomized and the mother’s boyfriend urinated in her mouth. Several medical experts agreed that the defendant’s history of abuse was exceptional. The district court erred in holding that the tragic circumstances of the abusive upbringing were not extraordinary and the case was remanded to determine whether a departure was warranted. In addition, the court suggested the district court may also wish to consider a “youthful lack of guidance” departure. U.S. v. Roe, 976 F.2d 1216 (9th Cir. 1992).
9th Circuit rejects downward departure, but suggests “youthful lack of guidance departure” on remand. (736) The 9th Circuit reaffirmed its ruling in U.S. v. Martin, 938 F.2d 162 (9th Cir. 1991) that “a defendant’s post-arrest drug rehabilitation efforts afford no basis for downward departure.” Moreover, although U.S. v. Cook, 938 F.2d 149, 153 (9th Cir. 1991) held that a “unique combination of factors “may constitute a mitigating circumstance justifying a downward departure, the other factors relied on here could not justify a departure, i.e. (1) defendant’s age of 46 years, (2) his reduced mental capacity due to drug abuse, (3) his drug dependence, (4) his ability to maintain full-time employment until crack abuse took over his life, and (5) his lack of family ties at an early age. However, the 9th Circuit suggested that on remand, the district court “may wish to consider” a departure under U.S. v. Floyd, 945 F.2d 1096 (9th Cir. 1991), amended, 956 F.2d 203 (9th Cir. 1992) for “youthful lack of guidance.” U.S. v. Anders, 956 F.2d 907 (9th Cir. 1992).
9th Circuit reverses downward departure for lack of prior record, restitution, acceptance of responsibility, and family ties. (736) In sentencing this “repentant white-collar embezzler who made restitution and pled guilty,” the district judge departed downward and gave the defendant straight probation, based on his (1) lack of a prior record; (2) prompt total payment of restitution; (3) acceptance of responsibility; (4) his effort to keep his family together and the manner in which the family overcame its challenges; (5) the fact that incarceration would be “unjust and counterproductive;” and (6) the “totality of the situation.” The 9th Circuit held that none of these reasons was sufficient to justify a departure, either separately or together. U.S. v. Berlier, 948 F.2d 1093 (9th Cir. 1991).
9th Circuit rejects downward departure for drug dependence. (736) Defendant argued that his was not a drug dependence in the traditional sense, because he was addicted to opiates which resulted from legally prescribed drugs administered for medical treatment. Relying on several prior cases, the 9th Circuit rejected the argument, holding that guideline § 5H1.4 forecloses consideration of drug dependency as a ground for downward departure. U.S. v. Sanchez, 933 F.2d 742 (9th Cir. 1991).
9th Circuit rejects extreme alcoholism as a basis for downward departure. (736) Guidelines § 5H1.4 states that “drug dependence or alcohol abuse is not a reason for imposing a sentence below the guidelines.” Accordingly the 9th Circuit agreed with other circuits that a district court has no discretion to depart downward based on an appellant’s alcoholism, “irrespective of its extreme nature.” U.S. v. Page, 922 F.2d 534 (9th Cir. 1991).
9th Circuit reverses upward departure based on defendant’s need for psychiatric help. (736) The district court departed upward from the guidelines, stating that the sentence was imposed “for the purpose of perhaps securing some beneficial treatment, psychiatric treatment.” The 9th Circuit reversed, holding that “the need for psychiatric treatment is not a circumstance which justified departure.” U.S. v. Doering, 909 F.2d 392 (9th Cir. 1990).
9th Circuit reverses upward departure based on alcohol and cocaine abuse. (736) U.S.S.G. 5H1.4 declares that a defendant’s physical condition, including drug dependence and alcohol abuse, is ordinarily a factor that is not relevant in determining whether a sentence should be outside the guidelines. Thus the 9th Circuit held that before considering a departure based on dependency, “a sentencing judge should find that a particular defendant’s condition is so out of the ordinary that departure, rather than any other measure, is required, and state the reasons why a greater period of incarceration is more appropriate than a longer term of supervised release.” Because the district court in this case did not articulate its reasons for departing upward sufficiently, the court remanded the case for resentencing. U.S. v. Richison, 901 F.2d 778 (9th Cir. 1990).
9th Circuit holds refusal to depart below minimum period of supervised release was reasonable where defendant needed treatment. (736) The district court conditioned defendant’s release on participation in testing and treatment programs for alcohol and psychological problems. Defendant was sentenced to the minimum periods of custody and supervised release. Although the sentencing court has discretion to depart from the guidelines for supervised release, the 9th Circuit concluded that the concern with defendant’s behavioral problems justified the refusal to depart downward. U.S. v. Borrayo, 898 F.2d 91 (9th Cir. 1989).
10th Circuit says defendant’s physical condition did not require downward variance. (736) Before being sentenced on drug charges, defendant suffered a stroke that left him with severe mental and physical impairments. At sentencing, defendant argued that his condition made him a candidate for a downward departure or a variance. The Tenth Circuit upheld the district court’s rejection of the request, which resulted in a 135-month sentence. To overcome the presumption of reasonableness for a within-Guideline range sentence, an appellant must demonstrate that the district court abused its discretion under 18 U.S.C. § 3553(a). The sentence was procedurally reasonable. Because the sentence fell within the advisory Guideline range, the district court was required as a matter of law only to provide “a general statement of ‘the reasons for its imposition of the particular sentence.'” The court here referred to (1) the need to avoid disparities between defendant and his co-defendants, (2) the fact that defendant’s condition was not as extreme as he portrayed (he continued to care for himself and his 10-year old son after the stroke), (3) the BOP believed it could provide all of defendant’s health-related needs, and (4) incarceration was necessary to prevent defendant from associating with his ex-wife, a heavy drug user. U.S. v. McComb, 519 F.3d 1049 (10th Cir. 2007).
10th Circuit rejects downward departures and remands under Booker. (736) Defendants, all former correctional officers, were convicted of offenses related to an assault on an inmate. The district court granted each of them a five-level downward departure under § 5K2.0 based on a totality of the circumstances, including family ties and responsibilities, employment history, civic and public service, educational history and lack of criminal history. The Tenth Circuit held that the district court abused its discretion when it granted the departures. Nothing about the defendants’ family situations, employment or educational records or community and public service activities was particularly extraordinary. Even when considered in the aggregate, these factors were not enough to support the granting of downward departures. In addition, defendants were entitled to resentencing under U.S. v. Booker, 543 U.S. 220 (2005). The district court made several findings based on a preponderance of evidence that defendants did not admit and the jury verdict along did not support under the then-mandatory guidelines. The error affected defendants’ substantial rights, since the record showed that the court would have imposed a lower sentence had it had the discretion to do so. When the court granted the five-level downward departure, it considered several near-identical factors recommended by § 3553(a)(1). The court expressed dissatisfaction with the guidelines, and stated that it would impose a sentence of probation if permitted by the guidelines. U.S. v. Serrata, 425 F.3d 886 (10th Cir. 2005).
10th Circuit says support and care for elderly parents in Mexico did not warrant downward departure. (736) 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 holds that degree of diminished capacity departure was abuse of discretion. (736) At sentencing, the district court departed downward 15 levels from an offense level of 23, and sentenced defendant to time served (four days) and five years of supervised release. The departure was based on defendant’s reduced mental capacity and on her physical and mental condition. The degree of departure was “to punish [defendant] for the conduct in which she has engaged in, but punish her in a way that is not irreversibly detrimental to her health.” The court also noted that defendant’s reduced mental capacity “significantly contributed to the commission of this crime.” The Tenth Circuit held that the degree of departure was an abuse of discretion. The primary reason for the extent of the departure was so defendant could avoid incarceration and continue to benefit from support from her family and therapist. However, this sort of justification is forbidden by U.S. v. Goldberg, 295 F.3d 1133 (10th Cir. 2002) (court may not first decide that defendant should not serve any jail time and then choose a degree of departure to achieve this result). The panel suggested that on remand, the departure should be no greater than two to four levels. U.S. v. Cordova, 337 F.3d 1246 (10th Cir. 2003).
10th Circuit rules request for departure based on age and health not made in good faith. (736) Defendant’s plea agreement provided that the government would “not oppose a downward departure if there is a good faith basis for a downward departure.” Defendant argued that the prosecutor beached this promise when he stated that (1) defendant had cited no case law to support the argument that age and health concerns warranted a downward departure, and (2) many defendants have age and health concerns. The Tenth Circuit found no breach, construing the prosecutor’s comments to reflect a belief that defendant’s request for a departure was not made in good faith. Nothing in the record indicated that defendant’s age and health were of unusual concern. The PSR noted that defendant was 61, suffered from diabetes and hypertension, and had been treated for depression and anxiety. The PSR then stated that defendant’s “physical and mental condition are not extraordinary to the extent that a downward departure is justified.” Based on this record, the panel concluded that defendant did not make his age and ill health argument in good faith. Thus, the prosecutor did not breach the plea agreement when he opposed a downward departure on those grounds. U.S. v. Peterson, 225 F.3d 1167 (10th Cir. 2000).
10th Circuit rules court did not consider defendant’s race despite reference to “black community.” (736) At sentencing, defendant moved for a downward departure based on her years of service to groups and individuals in the black community. In denying the motion, the court noted that it had sentenced “many many people … from the black community in Wichita.” The judge expressed concerned that if he “overlooked” defendant’s crimes and considered only her community service “it might send the message that if you’re active in the community that you can steal a couple of million dollars from your employer and then come in and ask the judge to give you a break because you were active in the community.” Defendant argued that the court’s reference to the “black community” constituted consideration of her race for sentencing purposes. Although the district court’s reference to race was “unfortunate and inappropriate,” the Tenth Circuit ruled that the district court did not consider defendant’s race in its sentencing decision. “Rather, the court was rejecting defendant’s argument that her service to the minority community somehow atoned for her crimes. Simply put, the court was responding to a chorus of [defendant’s] supporters with a reference to the fact that the same community [defendant] had served so ably had also been deeply damaged by her actions.” U.S. v. Guidry, 199 F.3d 1150 (10th Cir. 1999).
10th Circuit affirms family circumstances departure where wife at risk to lose children and car. (736) Defendant supported four young children and his wife. To replace his income since his incarceration, his wife worked 14 hours a day, 55 miles from home. Because she was barely able to provide for the children, authorities were investigating whether the wife would be able to retain custody. The wife was also at risk of losing her car for failure to make payments. If she lost the car, she would lose her two jobs. There was no extended family to take custody of the children or assist financially. Under § 5H1.6, a court may only depart based on family circumstances if present to an exceptional degree. The Tenth Circuit agreed that the facts of this case were sufficiently exceptional to merit a family circumstances departure. The degree of the departure was reasonable. The district court departed only three levels, and sentenced defendant to 37 months. This made defendant eligible for the Shock Incarceration Program under § 5F1.7. The judge recommended defendant for admission to the six-month labor-incarceration program. Completion of the program would allow defendant to work for his employer while confined to a half-way house under close supervision for non-work hours. This would minimize the impact on defendant’s children. U.S. v. Gauvin, 173 F.3d 798 (10th Cir. 1999).
10th Circuit rejects departure for “backpackers” based on drug quantity, socioeconomic status, and lack of sophistication. (736) Defendants were Mexican citizens who carried backpacks full of marijuana into the United States. The government argued that, in departing downward, the district court erroneously (1) attributed to each defendant only the drugs he carried in his individual backpack; (2) considered defendants’ socioeconomic status; and (3) relied on defendants’ lack of sophistication. The Tenth Circuit held that all three grounds for departure were improper. As note 2(c)(8) to § 1B1.3 illustrates, the Sentencing Commission considered and rejected the district court’s position that persons caught backpacking marijuana across the border in groups should only be accountable for the marijuana that individual carried. Section 5H.1.10 says that socioeconomic status is not relevant in the determination of a sentence. Finally, although a defendant’s lack of sophistication may be a proper basis for departure, the lack of sophistication must be sufficient to remove the case from the “heartland” already considered by § 3B1.2’s minimal participant reduction. The nature of the crimes and the evidence suggested that defendants’ lack of sophistication was not sufficiently unusual to remove their case from the “heartland.” U.S. v. Dominguez-Carmona, 166 F.3d 1052 (10th Cir. 1999), overruled on other grounds, U.S. v. Meyers, 200 F.3d 715 (10th Cir. 2000).
10th Circuit upholds using employment consequences as basis for departure. (736) 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 holds child support burdens did not justify departure. (736) 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 upholds community service and support as one of several grounds for departure. (736) 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 reverses departure for disparity, minor role, coercion, lack of criminal history, and family responsibility. (736) Defendant was convicted of drug charges. The district court departed downward based on five factors: (1) the disparity of sentences between defendant and a co-defendant; (2) defendant’s minor role; (3) the court’s finding that defendant was manipulated by her co-defendant; (4) defendant’s lack of criminal history; (5) defendant’s family responsibilities as the sole support for her six-year old son and partial support for her parents. The Tenth Circuit reversed. A departure based on a disparity between co-defendants is not justified when sentences are dissimilar because of a plea bargain. Defendant’s minor role is accounted for by § 3B1.2. Coercion must involve a threat of physical injury, substantial damage to property or similar injury. The only evidence was defendant’s comment that she refused to testify against her co-defendant because she was scared. Also, coercion must occur at the time of the offense. Defendant’s lack of criminal history was accounted for in criminal history category I. Defendant’s family responsibilities were not extraordinary. U.S. v. Gallegos, 129 F.3d 1140 (10th Cir. 1997).
10th Circuit reverses downward departure for family circumstances. (736) 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 holds court failed to follow procedure in rejecting § 5H1.4 departure. (736) Defendant requested a departure under § 5H1.4 on the basis that he was infirm, a paraplegic, and had developed serious complications. The district court refused to depart and instead sentenced defendant at the top of the applicable guideline range. The court noted that defendant’s physical condition was not an excuse for criminal conduct, and that the court was “not in the business of rehabilitation,” but “in the business of punishing the sale of LSD.” The Tenth Circuit held that the district court failed to follow the mandate of the guidelines to exercise informed discretion guided by the standards of § 5H1.4. The district court must make a factual finding as to whether defendant’s disabilities constitute “an extraordinary physical impairment” under § 5H1.4. If so, the court must determine whether that condition warrants a shorter term of imprisonment or an alternative to confinement. One of the concerns under § 5H1.4 is the cost of imprisonment, not just concern for fairness to the defendant. U.S. v. Fisher, 55 F.3d 481 (10th Cir. 1995).
10th Circuit rejects downward departure based on need for care for son, psychiatric condition and nature of offense. (736) Defendant was convicted of possessing marijuana and possessing homemade silencers. The Tenth Circuit rejected a downward departure based on defendant’s psychiatric history, his son’s need for defendant’s care, and the unsophisticated nature of the silencers. Although incarceration’s adverse effect on family members may be a ground for departure under § 5H1.6, the district court must identify extraordinary circumstances. Here, defendant’s son would be forced to live with defendant’s stepson, a high school drop-out, but this did not warrant a departure. Although defendant had some psychiatric problems, they did not amount to diminished capacity to supports a § 5K2.13 departure. Finally, the unsophisticated nature of the silencers (old toilet paper tubes filled with stuffing from old stuffed animals) did not take this case outside the “heartland” of the guidelines. U.S. v. Webb, 49 F.3d 636 (10th Cir. 1995).
10th Circuit rejects lack of sophistication, family responsibilities and race as grounds for departure. (736) Defendant was convicted of forcible rape. He argued that the district court erroneously believed it lacked authority to depart downward based on his lack of sophistication, his responsibilities as a husband and father, and his being raised on an Indian reservation. The 10th Circuit found no error. Sections 5H1.6 and 5H1.10 state that family and community ties and race are irrelevant for departure purposes. Furthermore, while not foreclosing the possibility that lack of sophistication could provide a valid basis for departure, depending on the crime and the circumstances, forcible rape is not a crime where lack of sophistication could justify a departure. U.S. v. Talk, 13 F.3d 369 (10th Cir. 1993).
10th Circuit holds that departure was improperly based on drug rehabilitation efforts. (736) The 10th Circuit, adopting the reasoning of U.S. v. Ziegler, 1 F.3d 1044 (10th Cir. 1993), decided the same day, held that defendant’s drug rehabilitation efforts were not grounds for a downward departure. Contrary to defendant’s assertions, the departure was not based in part on defendant’s exceptional acceptance of responsibility. Moreover, even if it were, the sentence could not be affirmed, since there was no evidence that the court would impose the same sentence absent the improper reliance on defendant’s drug rehabilitation. Moreover, the court failed to elaborate why defendant’s acceptance of responsibility was so exceptional as to make section 3E1.1 inadequate. U.S. v. Gaither, 1 F.3d 1040 (10th Cir. 1993).
10th Circuit holds that non-custodial sentences are not sole means of making physical impairment departures. (736) Defendant requested a downward departure under section 5H1.4 based upon his physical and mental disabilities. The district court held that it was without authority to depart downward, since departures under section 5H1.4 are limited to those cases in which a defendant’s physical impairment is so extraordinary that only a non-custodial sentence is appropriate. The 10th Circuit remanded for reconsideration of defendant’s request, holding that section 5H1.4 is not so limited. The plain language of section 5H1.4 provides that an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range, and then gives as an example a situation where home detention is as efficient as, and less costly than, imprisonment. The example is the not exclusive means of following the policy statement, because such an interpretation would ignore the words “below the applicable guideline range.” U.S. v. Slater, 971 F.2d 626 (10th Cir. 1992).
10th Circuit affirms downward departure based on defendant’s family responsibilities. (736) 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 aberrational 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).
10th Circuit remands where it was unclear whether court understood it had authority to depart downward. (736) Defendant urged the district court to depart downward based upon his history of severe mental problems. The 10th Circuit remanded because it was unclear whether the district court exercised its discretion not to depart, a decision that is not reviewable, or interpreted the guidelines as depriving it of the authority to depart on these grounds. The district court stated only that it was denying defendant’s request, but was interrupted by counsel and did not explain why. U.S. v. Fox, 930 F.2d 820 (10th Cir. 1991).
10th Circuit rules that prevalence of alcohol abuse on an Indian reservation is not grounds for downward departure. (736) The district court refused to depart downward because it believed that the prevalence of alcohol on an Indian reservation was not a basis for departure. The 10th Circuit agreed, holding that the prevalence of alcohol abuse and race are not grounds for departure. U.S. v. Lowden, 905 F.2d 1448 (10th Cir. 1990).
11th Circuit rejects downward departures based on aberrant behavior, physical condition and family circumstances. (736) In a commercial bribery case, the district court departed downward for one defendant based on a combination of aberrant behavior, physical condition, and family circumstances. It departed downward for the other defendant for aberrant behavior, physical condition, no loss to the victim and full satisfaction of the previous sentence. The Eleventh Circuit held that the court erred as a matter of law. Given the significant planning and repeated acts involved in the bribery scheme, neither defendant’s criminal behavior was aberrant. Neither of the defendants’ conditions were so “extraordinary” or exceptional as to justify a downward departure. One suffered from Restless Leg Syndrome, but the BOP could provide him with needed drugs, diet and exercise. The start of the other defendant’s incarceration was delayed in order to permit him to undergo surgery that would correct his medical condition. The first defendant’s need to tutor his dyslexic son, and his mother-in-law’s failing health also did not warrant a downward departure. U.S. v. DeVegter, 439 F.3d 1299 (11th Cir. 2006).
11th Circuit rejects departure based on drug abuse, learning disability and emotional disorder. (736) In departing downward, the district court stated that it believed defendant’s judgment was impaired by a number of factors, including drug abuse, a low aptitude or learning disability leading to classification as a special education student, and “early treatment for an emotional or mental disorder.” The Eleventh Circuit found that this was an improper ground for departure. While the guidelines do not categorically prohibit a judge from departing on the basis of offender-related characteristics, the policy statements of § 5H1.6 prohibit departures from the applicable sentencing range in all but extraordinary cases, i.e. all but departures under § 5K2.0. There was nothing in the record about defendant’s drug addiction or his mental and emotional condition that made his case so extraordinary as to take it out of the heartland. Moreover, departures based on diminished capacity are further restricted by § 5K2.13. A § 5K2.13 departure is not permitted when the significantly reduced mental capacity was caused by the voluntary use of drugs or other intoxicants. U.S. v. Smith, 289 F.3d 696 (11th Cir. 2002).
11th Circuit says defendant’s employment and family ties insufficient for downward departure. (736) 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. (736) 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 holds that in extraordinary cases a court may depart downward based upon specific offender characteristics. (736) The 11th Circuit held that in extraordinary circumstances, a district court may depart downward on the basis of specific offender characteristics listed in guideline sections 5H1.1-6. This is also true for offender-related characteristics not considered by the guidelines. Nevertheless, a judge’s discretion to depart on the basis of offender-related characteristics must remain within the “penological framework” established by the guidelines. For example, the placement of an offender within criminal history I reflects the sentencing commission’s assessment that the offender possesses the lowest possible likelihood of recidivism. The low end of the range applicable to a category I offender specifies the sentence appropriate for an offender who is so unlikely to engage in future criminal conduct as to not warrant imprisonment for incapacitative purposes. A judge therefore may not depart downward from a category I sentence on incapacitative grounds. Rehabilitative considerations have been declared irrelevant for purposes of deciding whether or not to impose a prison sentence. Therefore, a judge may depart from a category I sentence on the basis of offender-related characteristics only if considerations of general deterrence or retribution counsel such a departure. U.S. v. Mogel, 956 F.2d 1555 (11th Cir. 1992).
11th Circuit rejects downward departure for owning a business, supporting minor children and mother, and trouble-free past. (736) The district court departed downward because defendant (a) had a business which could “go under” if she was not there to run it, (b) supported her two minor children and her mother, and (c) had never been in trouble in the past. The 11th Circuit found that none of these factors, either individually or in combination, were sufficiently extraordinary to overcome the strong presumption against downward departures on the basis of offender characteristics established in section 5H of the guidelines. Moreover, defendant’s trouble-free past was an inappropriate ground for departure because her placement in criminal history category I already reflected the absence of prior brushes with the law. A departure below the lower limit of the guideline range for a category I offender on the basis of adequacy of criminal history cannot be appropriate. U.S. v. Mogel, 956 F.2d 1555 (11th Cir. 1992).
11th Circuit rejects downward departure based upon parental status. (736) 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).
11th Circuit says exceptional recovery from drug-dependency may justify departure. (736) The 11th Circuit, following the 1st Circuit’s decision in U.S. v. Sklar, 920 F.2d 107 (1st Cir. 1990), held that a post-arrest, pre-sentence recovery from drug addiction is a factor adequately considered by the sentencing commission in fashioning the acceptance of responsibility reduction under section 3E1.1. However, a truly extraordinary post-arrest, pre-sentence recovery may exceed the degree of recovery contemplated in section 3E1.1 and therefore justify a downward departure. Section 5H1.4 does not prohibit a downward departure based on a drug recovery, it merely prohibits downward departures on the basis of a defendant’s theoretical diminished capacity because of his drug dependence. However, defendant’s situation did not merit a downward departure because her progress toward partial recovery during her five months in a court-ordered treatment plan was not sufficiently unusual to take her out of the heartland of cases. U.S. v. Williams, 948 F.2d 706 (11th Cir. 1991).
11th Circuit reverses downward departure from mandatory minimum based on age and heart condition. (736) The district court calculated defendant’s guideline range at 78 to 97 months, and sentenced him to 78 months. However, since defendant was involved with in excess of 50 grams of cocaine, the statutory minimum sentence was 10 years. The district court justified a departure from the minimum sentence based on defendant’s advanced age and heart condition. The 11th Circuit reversed, holding that the only authorization for a departure from a mandatory minimum sentence is when the government moves for a departure based upon a defendant’s substantial assistance. This was not such a case. U.S. v. Hall, 943 F.2d 39 (11th Cir. 1991).
D.C. Circuit rejects downward departure where judge believed guideline sentence was unjust. (736) In refusing to impose a guideline sentence, the district judge cited five possible grounds for a downward departure: (1) the fact that defendant had not committed a criminal offense in the prior nine years; (2) the court’s belief that the sentence required by the Sentencing Guidelines was “unjust”; (3) defendant’s post-conviction rehabilitation; (4) defendant’s employment record; and (5) defendant’s family ties and responsibilities. The D.C. Circuit reversed. To the extent the court based the departure on its belief that the sentence was unjust, it relied on a clearly improper factor. The same was true for the remoteness of defendant’s criminal history. Because defendant was assigned to Criminal History Category I, the guidelines already accounted for that mitigating fact. The remaining factors were legally permissible in rare circumstances. However, the district court neglected to give reasons for its departure “with specificity in the written order of judgment and commitment” as required by 18 U.S.C. § 3553(c). The court’s statement that its departure was granted pursuant to “U.S.S.G. § 5K2.0 and reasons set forth on the record at sentencing” was insufficient. U.S. v. Tucker, 386 F.3d 273 (D.C. Cir. 2004).
D.C. Circuit agrees that downward departure based on defendant’s advanced age and health was not warranted. (736) The district court denied defendant’s request to depart downward under U.S.S.G. §§ 5H1.1 and 5H1.4 based on his age and physical condition. The court agreed that 82-year old defendant was elderly. However, the court found that defendant did not meet the third element of § 5H1.1: that an alternative “form of punishment such as home confinement … be equally efficient as … incarceration.” The court concluded that home confinement would not be effective in restraining defendant’s criminal conduct because defendant had a history of dealing drugs in his home. As for § 5H1.4, the court found that defendant’s impairment was insufficient to qualify for a departure, noting that the guideline requires not just infirmity, but “extraordinary physical impairment.” The D.C. Circuit affirmed the refusal to depart. U.S. v. Brooke, 308 F.3d 17 (D.C. Cir. 2002).
D.C. Circuit finds single father’s family circumstances were not extraordinary. (736) 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 circumstances 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 upholds refusal to depart for youthful lack of guidance. (736) Defendant requested a downward departure based on a youthful lack of guidance since all his early role models, including his three older brothers, members of his extended family and his stepfather, were involved in dealing drugs. Vast amounts of drugs and guns were stored and processed in his home. The district court refused to depart, noting that he was raised in a household with a mother and a stepfather, and although there were concerns about drug dealers, there was no indication he was abused or neglected as a child. Defendant argued that the district court’s factual findings were clearly erroneous because the court found that his drug-dominated environment was stable. The D.C. Circuit refused to review the matter. The district court recognized it had the authority to grant a departure for youthful lack of guidance, acknowledged the involvement of virtually every member of defendant’s family in drug activity, yet decided not to depart. Although another decision would have been entirely legitimate, the district court had virtually unreviewable discretion not to depart. U.S. v. Thomas, 114 F.3d 228 (D.C. Cir. 1997).
D.C. Circuit holds that breast feeding mother did not have extraordinary family circumstances. (736) 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. Circuit says retroactive prohibition of “youthful guidance” departure would violate ex post facto clause. (736) Effective November 1, 1992, the guidelines were amended by section 5H1.12 to prohibit departure based on lack of guidance as a youth. The D.C. Circuit held that applying this guideline retroactively to offenses committed before November 1, 1992 would violate the ex post facto clause. Thus, for offenses committed before November 1, 1992, the court retains discretion to depart downward for defendant’s lack of guidance as a youth and history of child abuse. However, there must be a plausible causal nexus between the lack of guidance and exposure to domestic violence and the offense for which the defendant is being sentenced. In addition, the court should consider whether defendant’s childhood exposure to domestic violence was sufficiently extraordinary to be weighed under section 5H1.3, which states that mental and emotional conditions are not ordinarily relevant in deciding whether to depart. U.S. v. Clark, 8 F.3d 839 (D.C. Cir. 1993).
D.C. Circuit rules exposure to domestic violence is not a component of socio-economic class for which departure is prohibited. (736) Defendant had what the district court described as a “tragic” background: he was moved around from relative to relative, and his stepfather threatened him and eventually murdered his mother. The district court refused to depart based on defendant’s background because it found that guideline § 5H1.10 prohibited departures based upon a defendant’s “socio-economic class.” The D.C. Circuit held that exposure to domestic violence and its “attendant dislocations” was not part of a defendant’s socio-economic class. Socioeconomic class refers to an individual’s status in society as determined by objective criteria such as education, income and employment. Domestic violence does not “follow class lines.” The court did not reach the question of whether exposure to domestic violence might be considered a basis for departure other than as it relates to a defendant’s mental and emotional condition. The case was remanded for the district court to reconsider whether a downward departure might otherwise be justified. U.S. v. Lopez, 938 F.2d 1293 (D.C. Cir. 1991).
D.C. Circuit upholds failure to depart downward based upon defendant’s young age. (736) The D.C. Circuit affirmed the district court’s refusal to depart downward based upon defendant’s age. The district court understood the scope of its authority on the question of age, but concluded that defendant did not present sufficiently unusual circumstances to justify the departure. The fact that the same judge granted a departure in a similar case did not give defendant a basis to attack the court’s exercise of discretion in his case. The appellate court also rejected defendant’s claim that guideline § 5H1.1, which states that a defendant’s age is not ordinarily relevant, was invalid because the Sentencing Commission failed to give reasons for adopting it. U.S. v. Lopez, 938 F.2d 1293 (D.C. Cir. 1991).
D.C. District Court imposes no imprisonment but departs upward in probation term for mentally ill defendant. (736) Defendant was diagnosed as mentally ill but competent to stand trial. The D.C. District Court found that in a supervised environment defendant accepted medication, which regularized his behavior. Without such medication, defendant would quickly revert to his “irresponsible state in which he engaged in criminal conduct and became a danger to his family and to the community.” The guidelines left imprisonment to the sentencing court’s discretion and mandated a one- to three-year term of probation. The court found that incarceration was not indicated as long as defendant continued to accept his medication, but departed upward and sentenced defendant to five years’ probation. It found the departure was justified by concern for the safety of defendant’s family and the community if his medication and treatment were not supervised by the probation officer for as long as possible. U.S. v. Coleman, 762 F.Supp. 1513 (D.D.C. 1991).
D.C. District Court departs downward based on defendant’s family responsibilities and lack of threat to society. (736) 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).
D.C. District Court departs downward for diminished capacity and vulnerability to attack in prison. (736) Defendant pled guilty to conspiracy, and was originally sentenced to three years. The Court of Appeals reversed. On remand the D.C. District Court found that defendant committed a nonviolent offense, that the offense did not result from the voluntary use of drugs, that defendant’s criminal history did not suggest a need for incarceration, and that defendant committed the offense while suffering from a significantly reduced mental capacity. Accordingly, the court departed downward pursuant to guide-lines § 5K2.13 and sentenced defendant to two years. The court also found that defendant’s “extreme vulnerability” to attack in prison was a further ground for departure. Defendant was mentally retarded, and while in prison, had been the subject of a savage attack which caused severe head trauma. As a consequence defendant was frightened and could no longer sleep at night. He suffered headaches and when he slept during the day he suffered nightmares. The court found these facts justified a departure under guidelines § 5H1.4, which provides that “an extraordinary physical impairment may be reason to impose a sentence other than imprisonment.” U.S. v. Adonis, 744 F.Supp. 336 (D.D.C. 1990).
D.C. District Court departs downward based on defendant’s probable success in drug treatment program. (736) The defendant, a 30-year-old drug addict who had no prior arrests or convictions, faced a sentence of from 8 to 12 years. District Judge Oberdorfer ruled that the guidelines rejection of addiction as a factor in sentencing provides “no evidence of consideration of a first offender drug addict’s probable success in drug treatment as a factor in sentencing.” The court held that “the absence of consideration of this mitigating factor constitutes a basis for departure where expert opinion and other evidence leads to a finding that successful treatment for drug addiction is likely.” Accordingly the judge departed downward and imposed a sentence of 5 years, plus 4 years on supervised release. U.S. v. Harrington, 741 F.Supp. 968 (D.D.C. 1990).
New York District Court departs downward for pregnant woman to avoid permanent loss of parental rights. (736) At the time of sentencing, defendant, a Ghanaian resident alien, was seven months pregnant with her second child by a father who she planned to marry. The pregnancy had been difficult, and defendant had been bedridden for much of the period prior to her sentencing. The parties agreed that imprisonment for more than a year after the birth of the child would likely cause defendant to lose custody. Defendant had no family member in this country to care for the child, and therefore would be required to name the state as legal guardian of the child within a few days of giving birth. Under state law, defendant would almost certainly lose permanent custody of the child. The District Court for the Eastern District of New York therefore departed downward “to protect the health of the mother and child and to permit the mother to be united with her child.” Defendant was sentenced to time served and five years of supervised release. In addition, the probation officer was directed to arrange for defendant’s transportation to Ghana. If possible, such transportation should occur prior to the child’s birth, since if born in the United States the child would be an American citizen with the right to look to the community for support, and because the cost of caring for the mother and child for the next several months would be significant. U.S. v. Pokuaa, 782 F.Supp. 747 (E.D.N.Y. 1992).
New York District Court departs downward where deportation would separate defendant from his family. (736) Defendant pled guilty to importation of heroin. Defendant was a permanent resident married to a permanent resident with a one and one-half year old daughter who was an American citizen. He served six years in the U.S. Army and was entitled to citizenship as a result, but made no application out of ignorance of his rights. Upon completion of his term of his imprisonment, defendant was to be deported. He would be separated from his family and friends and probably never be permitted to legally return to the United States. Defendant’s guideline range was 41 to 51 months. The Eastern District of New York departed downward and sentenced defendant to time served, which in this case was 15 months, and three years’ supervised release. The court then turned defendant over to the INS for deportation. U.S. v. Agu, 763 F.Supp. 703 (E.D.N.Y. 1991).
New York District Court departs downward to statutory minimum based upon defendant’s cancer. (736) During pretrial detention, defendant was diagnosed as having testicular cancer. He eventually pled guilty to drug charges, which resulted in an applicable guideline range of 151 to 188 months. Defendant moved for a downward departure under guideline § 5H1.4 and 5K2.0 on the ground that his metastasized cancer was a serious life-threatening illness constituting an extraordinary physical impairment. The government agreed at sentencing not to contest a court ruling that defendant’s cancer was a mitigating circumstance not contemplated by the guidelines. Accordingly, the Eastern District of New York departed downward and sentenced defendant to five years imprisonment, the statutory minimum. Since no recommendation of leniency was made by the government, a term of imprisonment below the statutory minimum was not permissible. U.S. v. Velasquez, 762 F.Supp. 39 (E.D.N.Y. 1991).
Indiana District Court refuses to depart downward based on defendant’s overcoming drug dependency. (736) After indictment, the defendant overcame his dependency on cocaine. Judge Miller of the Northern District of Indiana noted that under U.S.S.G. § 5H1.4 drug dependency is ordinarily not a basis for imposition of a sentence below the guideline range. The judge ruled that given that provision, “a downward departure for success in overcoming a drug dependency … can provide a basis for departure only in unusual cases.” The court found that defendant’s case was not unusual. U.S. v. Sergio, 734 F.Supp. 842 (N.D. Indiana 1990).
Illinois District Court rules defendant’s age was proper grounds for downward departure given the length of the guideline sentence. (736) Defendant was convicted of being a felon in possession of a firearm and various narcotics offenses. Due to his extensive criminal history, the appropriate guideline sentence would result in incarceration for longer than his life expectancy. The Northern District Court of Illinois held that departure from the guidelines was warranted because incarceration for the statutory minimum, but below the suggested guideline range would serve the purpose of ensuring that the defendant would not be likely to commit more crimes (§ 4A1.3). A sentence to the minimum 30-year guideline range would result in life imprisonment, given the 42 year old defendant’s life expectancy of 28.7 years. “Departure was warranted because a civilized society locks up people until age makes them harmless, but does not keep them in prison until they die.” Thus, the court declined to address whether the guideline sentence would constitute cruel and unusual punishment. U.S. v. Garrett, 712 F.Supp. 1327 (N.D. Ill. 1989).
Maryland District Court holds downward departure in theft of mail case was warranted by defendant’s exceptional military record. (736) 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).
Article says Koon has led to more departures for civic, charitable and public service. (736) Attorney Alan Ellis points out that, after Koon v. U.S., 518 U.S. 81 (1996), the Supreme Court vacated and remanded a Sixth Circuit case that had reversed a downward departure for defendant’s extraordinary charitable contributions. On remand, the district court reaffirmed its departure, and this time on appeal, the government conceded (and the Sixth Circuit agreed) that civic works were indeed a proper basis for a downward departure. The case was, however, remanded to reconsider the extent of the departure. U.S. v. Crouse, 145 F.3d 786 (6th Cir. 1998). Another post-Koon case, U.S. v. Rioux, 97 F.3d 648 (2d Cir. 1996) affirmed a downward departure based on the defendant’s charitable fund-raising efforts and civic accomplishments, as well as his poor medical condition. Accordingly, the author says charitable, public service, and good works should not be overlooked in seeking downward departures. Alan Ellis, Post-Koon Downward Departure: Part IV, Civic, Charitable or Public Service, ABA CRIMINAL JUSTICE 39 (Fall, 1988).
Articles explore new approaches to offender characteristics. (736) A series of articles in the Federal Sentencing Reporter discuss the Commission’s staff discussion paper on departures and offender characteristics. John H. Kramer, the Staff Director for the U.S. Sentencing Commission, argues that “the Commission’s belief that the guidelines fulfill the full range of purposes mandated for courts to consider oversimplifies the complexity of the issue and needs to be re-examined.” Robin L. Lubitz, Executive Director of the North Carolina Sentencing and Policy Advisory Commission, describes how North Carolina has dealt with offender characteristics and departures. Professor David Boerner, advisor to the Washington Sentencing Guidelines Commission since 1981, offers suggestions for offender characteristics based on his experience with the Washington guidelines. Sandra Shane-DuBow, former executive director of the Wisconsin Sentencing Commission, comments on the staff discussion paper’s comparison of federal and state systems with regard to offender characteristics. Finally, Federal Defender Jon M. Sands expresses “reservations” about departure reform as it relates to Indian crimes. Nora v. Demleitner, Editor, New Approaches to Offender Characteristics, 9 FED. SENT. RPTR. 124 (1996).
Commission disapproves of departures based on military, civic, charitable or public service. (736) 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.
Commission disapproves of departures based on appearance or physique. (736) The policy statement under section 5H1.4 was amended on November 1, 1991 to express the Commission’s position that a defendant’s appearance or physique is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range.
Article endorses downward departures for drug rehabilitation (736) A student author assesses the four primary arguments that have been employed against departures based on a defendant’s post-arrest drug rehabilitation: that the factor is adequately considered by the acceptance of responsibility provision, that such departures are precluded by section 5H1.4, that such departures are contrary to the statutory command about the proper role of rehabilitation in sentencing, and that such departures are unfair to defendants who were not addicted and therefore do not have an opportunity to earn the departure. Rejecting these arguments, the author nevertheless finds wanting the rationales of courts that have permitted such departures and suggests an alternative. The author notes that a proposed 1992 amendment is “designed to foreclose departure” by explicitly permitting consideration of drug rehabilitation under the acceptance of responsibility guideline. Note, Downward Departures from the Federal Sentencing Guidelines Based on the Defendant’s Drug Rehabilitative Efforts, 59 U. CHICAGO L. REV. 837-64 (1992).
Article endorses departures for extraordinary family responsibilities. (736) A student author reviews conflicting directions in the Sentencing Reform Act as to the relevance of family responsibilities in determining sentence. The author argues that the guidelines themselves leave unclear how to treat the defendant with extraordinary family responsibilities. After noting a division of authority in the courts over how the guidelines should be construed, the author advocates departures from the guidelines for defendants with extraordinary family responsibilities or ties. Note, The Sentencing Guidelines — Downward Departures Based on a Defendant’s Extraordinary Family Ties and Responsibilities, 76 MINN. L. REV. 957-84 (1992).