Departure Rulings Must Be Hitched to Sentencing Guidelines

History of the Case

The history for this case lies in the unique way in which sentences are determined in federal courts. The United States Sentencing Commission, created in response to the Sentencing Reform Act of 1984, is an independent agency in the judicial branch empowered to develop federal sentencing guidelines for courts to use when sentencing offenders convicted of federal crimes. These guidelines were meant to correct past racial and geographical inequalities in sentences in federal courts. The first edition of the guidelines became effective in 1987. They have been amended periodically to include 43 levels of offense seriousness, with the highest levels receiving the harshest sentences. Each type of federal crime is assigned a base offense level, from which sentencing courts are allowed some discretion in departing upward or downward, according to specifically outlined types of mitigating circumstances.

Facts of the Case

On three occasions in the spring of 2001, Agnes M. Cordova sold crack cocaine to undercover police officers in Pojoaque, New Mexico. During the third transaction, she was arrested and confessed to dealing drugs for approximately three months. She was found to be in personal possession of 45.6 grams of crack cocaine at the time of her arrest.

A federal grand jury found Ms. Cordova in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and indicted her on one count of distribution of more than five grams of crack cocaine and one count of possession with intent to distribute more than five grams of cocaine. On October 30, 2001, she pleaded guilty to both counts under a plea agreement. The conditions of the plea agreement provided that she would be eligible for (1) a three-level reduction for acceptance of responsibility under Guideline § 3E1.1, (2) a four-level reduction for being a minimal participant under Guideline § 3B1.2, and (3) a two-level, safety-valve reduction under Guideline § 2D1.1(b)(6). The presentence report recommended the acceptance of responsibility and safety-valve reductions, but recommended against the minimal participant reduction. However, at sentencing, the district court chose to grant all three reductions, lowering Ms. Cordova’s offense level to 23 and resulting in a sentencing range of 46 to 57 months in federal prison.

Ms. Cordova then moved for a downward departure of 15 levels, to offense level 8, on the basis of her age, mental and physical condition, family responsibilities, and diminished capacity. She produced two expert witnesses, a clinical counselor and a board-certified neuropsychologist, to testify to her level of impairment and psychosocial needs. The district court, citing her reduced mental capacity and physical ailments, granted the 15-level downward departure, and she was sentenced to time already served in jail and five years of supervised release. While acknowledging that 15 levels was a “significant departure,” the district court justified the degree of its departure as follows: The reason for the departure to [offense level] 8 is to be able to punish Ms. Cordova for…[her] conduct…but punish her in a way that is not irreversibly detrimental to her health. She needs to be able to have a consistent availability of the medications and monitoring of the medications, and she needs the support of her family. The extent of the departure is also justified by Dr. Thompson’s opinion in his report and in his testimony today that indicated that the reduced mental capacity significantly contributed to the commission of this crime. It wasn’t a peripheral issue or a marginal issue. It was a significant reason for the commission of this offense.

The government conceded Ms. Cordova’s reduced mental capacity and did not object to some amount of downward departure from the offense level reached in the plea agreement. The government, however, believed that the degree of departure in sentencing from offense level 23 to level 8 was unreasonable and filed an appeal.

Ruling

The Tenth Circuit Court of Appeals ruled in favor of the government’s appeal and vacated the district court’s sentence, remanding the case for resentencing. While acknowledging that it is not the role of the appellate court to usurp the district court’s role in determining the proper degree of departure on remand, the appeals court noted that the record did not support a downward departure in excess of the two to four levels recommended by the government at oral argument.

Reasoning

In oral arguments, the United States did not dispute that some degree of downward departure was warranted based on the defendant’s reduced mental capacity, a factor for which the sentencing guidelines allows such a departure. As stated in Guideline § 5K2.13, “A sentence below that applicable guideline may be warranted if the defendant committed the offense while suffering from a significantly reduced mental capacity.” The government, rather, took issue with the degree of downward departure and argued that the reduction of 15 levels was extreme and therefore an abuse of the sentencing court’s discretion.

The appellate court concurred, ruling that the sentencing court had failed to provide a reasonable explanation for the degree of departure. Citing U.S. v. Hannah, 268 F.3d 937 (10th Cir. 2001), the appellate court found that while justification for the degree of departure does not require “mathematical exactitude,” the sentencing court must explain its reasoning “using any reasonable methodology hitched to the Sentencing Guidelines, including extrapolation from or analogy to the Guidelines.” In the current case, the appellate court found the sentencing court to be deficient to the point of being “inconsistent with the Guideline’s fundamental goal of promoting uniformity in sentencing.” The sentencing court had not demonstrated a clear pattern of decision making that can be readily projected from the guidelines.

The Tenth Circuit also held that the sentencing court has a responsibility both to explain why a sentencing departure may be justified and to defend separately the extent of the departure from the base offense level. As outlined in U.S. v. Whiteskunk, 162 F.3d 1244 (10th Cir. 1998), the district court is obligated to provide specific reasons for the degree of departure that are independent and distinct from the required explanation of why a departure is warranted. Furthermore, such reasons must be linked to the guidelines so that “the sentencing court should attempt to predict what sentencing range the sentencing commission would have established had it considered the circumstances.”

While the guidelines permit downward departure for reduced mental capacity, they clearly state that “the extent of departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense.” Reasoning that the defendant had to be found to be suffering from reduced mental capacity to be eligible for any downward departure, the Tenth Circuit found that “the district court’s explanation for the degree of departure essentially restates the justification for departure in the first place” and therefore does not meet the separate requirement for explanation of the particular sentencing decision.

The Tenth Circuit ruled that the district court was also in violation of the decision in U.S. v. Goldberg, 295 F.3d 1133 (10th Cir. 2002), which specifically forbids choosing the degree of departure solely to achieve a desired sentence. In Ms. Cordova’s case, the district court significantly departed downward so that she could avoid further incarceration and could continue to interact with her therapist and her family, a move that the Tenth Circuit referred to as “extraordinary and essentially unjustified.” The Goldberg decision had disallowed a result-oriented, eight-level sentencing departure on the basis that the court’s methodology was “inconsistent with the Guidelines’ fundamental goal of promoting uniformity in sentencing.” In Ms. Cordova’s case, the departure, almost twice as large as that rejected in Goldberg, was result oriented and was not clearly extrapolated from the guidelines. Thus, the Tenth Circuit was compelled to remand for determination of the appropriate degree of departure.

Discussion

The ruling in this case highlights the way in which sentences are determined in federal court as opposed to those in state court. Two important differences can be discerned from the ruling. First, in federal court, the presence of a psychiatric illness and mental defect is not in and of itself sufficient for mitigation. The Federal Sentencing Guidelines require that there be a nexus between the disorder and the criminal behavior. The presence of a disorder meets the first requirement to even consider a downward departure. For a departure to occur, however, the court must rule that the disorder had an effect on the crime and how much an effect it had. According to this ruling, the amount of the effect must be correlated to the degree of departure.

For psychiatrists and psychologists involved as experts in downward departure evaluations, establishing the nexus becomes part of the assessment. In forensic psychiatry, this task is not unique. State of mind cases require the explication of how a disturbance of thought or emotion or a lack of control relates to the criminal behavior.

A more difficult task is determining the degree of effect in a numerically derived expression. The role of the mental health expert, however, stops before that determination, which belongs solely to the court.

The second characteristic unique to federal sentencing is the requirement that the sentence not be result based. In an effort to mandate fairness, the sentencing guidelines may be introducing a bias by not considering the effect of the sentence on the individual. Fairness in sentencing is a desirous but complex goal derived not only by how much punishment is given out, but also by what effect the punishment will have. Life circumstances may magnify or mitigate the actual sentence. In the pursuit of fairness, the requirement that sentencing ignore the impact that the imposed sentence will have on the individual defendant has the potential of increasing the bias that the guidelines were designed to reduce.

The primary raison d’être of the Federal Sentencing Guidelines is to prevent disparity in the sentencing for criminal behavior. Accordingly, the guidelines specifically discourage consideration of certain factors, including mental and emotional impairments, as a basis for departure. The commission does not view discouraged factors “as necessarily inappropriate” bases for departure but says they should be relied on only “in exceptional cases.” The guidelines provide a specific definition of “significantly reduced mental capacity” as “a significantly impaired ability to (A) understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the defendant knows is wrongful” (U.S. Sentencing Guidelines Manual § 5K2.13(1998)).

Thus, our profession bears the burden of identifying, as specifically and accurately as possible, the unique aspects of an individual defendant’s circumstances that may or may not make that individual eligible for a departure from the sentencing guidelines. It is also helpful to comment on the severity and magnitude of all relevant factors.

In Cordova, the district court determined that the defendant had a reduced mental capacity but failed to justify how this validated a downward departure of 15 levels. At resentencing (as learned through personal communication with Jacquelyn Robins, Esq., September, 2004), the defense team presented an evaluation by a neuropsychiatrist that found the defendant to be suffering from “a chronic, severe, and fixed psychosis” and that the defendant’s mental condition, “compared with a population of similarly affected individuals, is at the extreme low end of a bell-shaped curve.” The defense further presented testimony from a neuropsychologist who stated that the defendant “is a significantly compromised individual with major psychiatric and chronic health problems. There has been a deterioration of psychosocial functioning. Neuropsychological deficits that have multiple etiological factors continue to impair her functioning….” Subsequently, the government agreed to a downward departure of seven levels. As of this writing, the case remains in process, but it is evident that the more clearly the court understands the defendant’s life circumstances, the better qualified it will be to determine, impose, and justify a given sentence.

Family concerns and obligations are other areas that the guidelines specifically discourage as reasons for departure. Nevertheless, there are several precedents of courts’ allowing lesser sentences in cases involving “exceptional” family situations. Essentially all of these cases granted downward departure on the presumption that the lesser sentence would be easier on the defendant’s family, particularly children and other financial dependents, if the defendant were incarcerated for a lesser time. In Cordova, the district court granted departure, in part, on the basis that the defendant would benefit from continued exposure to her family. While there might be merit to this argument, the Tenth Circuit made clear that it is not the obligation of the court to protect the defendant’s relationship with her family when meting out a sentence.