United States v. Derusse
2017 U.S. App. LEXIS 10824
| 10th Cir. | 2017Background
- Defendant Joseph DeRusse (first-time offender) kidnapped his ex-girlfriend at gunpoint (a BB gun she believed real), drove her from Austin, TX to Kansas, and was apprehended about eight hours later; he served ~70 days in jail pretrial and pleaded guilty to one count of kidnapping.
- PSR calculated a Guidelines range of 108–135 months (offense level 31, CHC I); the victim suffered significant psychological injuries (PTSD, major depressive disorder, suicidal ideation).
- Extensive mitigating evidence: Defendant’s difficult family history, diagnoses of major depressive disorder and obsessive-compulsive disorder, and testimony that his conduct was out of character and linked to undiagnosed severe mental illness; he had begun treatment and medication before sentencing.
- District court granted both a downward departure (U.S.S.G. §5K2.20) and a downward variance under 18 U.S.C. §3553(a), sentencing DeRusse to time served (~70 days) plus five years’ supervised release with mental-health, no-contact, residency, and monitoring conditions.
- The government appealed the substantive reasonableness of the sentence, arguing (inter alia) that the conduct was not "aberrant," that the court over-weighted mental illness, and that the sentence failed to reflect seriousness and general deterrence.
Issues
| Issue | Government's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a downward variance may be based on "aberrant" conduct absent Section 5K2.20's specific criteria | Variance must meet the same requirements as a §5K2.20 departure (e.g., lack of significant planning, limited duration) | A §3553(a) variance is discretionary and may consider out-of-character conduct without complying with departure rules | Variance permitted without meeting §5K2.20's specific requirements; district court did not abuse discretion in finding conduct aberrational for variance purposes |
| Whether the district court erred in applying §5K2.20 departure | Departure improper because the kidnapping involved planning and was not limited-duration aberrant conduct | Any error was not preserved or was harmless because variance independently justified sentence | Government did not preserve a specific objection; any error was harmless given the permissible variance; no reversal on this ground |
| Whether the court improperly over-weighted Defendant’s mental illness | Mental-health treatment could be provided in prison; court gave undue weight to illness | Mental illness caused delusional thinking central to offense; weight appropriate in balancing §3553(a) factors | Court did not clearly err; mental illness was a permissible and reasonably weighted sentencing factor |
| Whether the sentence (time served) failed to reflect seriousness and provide just punishment / general deterrence | Time-served trivializes seriousness and victim harm; court downplayed offense and failed to give adequate deterrence weight | Court carefully considered victim harm and seriousness, but found atypical circumstances (immaturity, severe mental illness, aberration) making a shorter sentence sufficient | Sentence was within the broad range of permissible choices; district court adequately considered §3553(a) factors and did not abuse discretion |
Key Cases Cited
- United States v. Gantt, 679 F.3d 1240 (10th Cir. 2012) (standard for reviewing substantive reasonableness of sentence)
- United States v. McComb, 519 F.3d 1049 (10th Cir. 2007) (deference to district court’s §3553(a) factfinding and range of permissible choices)
- Gall v. United States, 552 U.S. 38 (2007) (district court’s sentencing discretion and deference on variance decisions)
- United States v. Garcia, 182 F.3d 1165 (10th Cir. 1999) (aberrant-behavior reductions can focus on out-of-character nature rather than spontaneity)
- United States v. Winder, 557 F.3d 1129 (10th Cir. 2009) (appellate preservation requirements for objections to sentencing)
- United States v. Arrevalo-Olvera, 495 F.3d 1211 (10th Cir. 2007) (harmlessness analysis as to sentencing errors)
- United States v. Walker, 844 F.3d 1253 (10th Cir. 2017) (time-served sentence for serious offenses reversed where offender was a career criminal and district court overemphasized rehabilitation)
- United States v. Lamirand, 669 F.3d 1091 (10th Cir. 2012) (failure to timely raise plain-error review forfeits sentencing challenge)
- United States v. Brown, 164 F.3d 518 (10th Cir. 1998) (arguments first raised at oral argument are untimely)
- United States v. Friedman, 554 F.3d 1301 (10th Cir. 2009) (appellate court recognizes district court’s superior position to weigh §3553(a) factors)