*1 1093 authority for is no simply There America, of UNITED STATES to relief is entitled that Saffold
proposition Plaintiff-Appellant- notice of the deni- receiving prompt for not Cross-Appellee, state courts. California als the various inquired have about surely could Saffold during those petition his once of status WORKING, Defendant- Brenda Lee could as- He knew he four months. Appellee-Cross-Appellant. petition by con- of his certain the status court, so be- as he done tacting the 98-30121, Nos. 98-30122. long, so he fore,1 by choosing to wait Appeals, States Court one-year seeing period ran the risk of Ninth Circuit. evaporate. April Argued and Submitted
III 6,May Filed to Saf- tolling apply does Equitable Opinion En Banc Granted applied Rehearing this court has fold because 1, 1999 Nov. extraordinary circum- Withdrawn “only if doctrine make beyond prisoner’s control stances March Argued and Submitted petition on time.” to file impossible 11, 2000 Sept. Filed Miles, See, (quoting e.g., 541) (internal Calderon, quota- F.3d at omitted). The Court Supreme
tion marks sentiment, ruling equitable out echoed vari- garden “what is at best tolling for Irwin v. neglect.” ety claim of excusable Affairs, 498 U.S. Department Veterans 112 L.Ed.2d 111 S.Ct. (1990). Here, judge prop- magistrate ar- delayed notice
erly rejected petitioner’s authority “for finding no gument, is not that a court document proposition receives notice prisoner until a effective it.”
IV carved out specifically in Nino court which language upon exception to That ex- majority rests its decision. dila- clearly dictates that Saffold’s ception scope petitions fall outside the tory ap- post-conviction pursued state properly dis- properly peals. The district I dissent. petition. therefore missed the court had petition before even Joaquin tus of his San Previously, wrote to the Saffold it. ruled on the sta- County Superior Court to determine
SILVERMAN, Judge: Circuit States,
In Koon v. United
518 U.S.
97-98, 116 S.Ct.
A decision to district court’s ... in most be the Guidelines will cases deference, for it embod- due substantial traditional exercise of discretion ies the by sentencing court. ju- important principle appellate
This test in this put dicial to the restraint to as- pled guilty case. The defendant intent to commit murder and sault with in a crime of violence. using a firearm was that the defendant’s behavior Finding aberrant, granted the district court twenty-one departure level downward on charge. Given substantial the assault to accord such required deference we are existence of evidence decisions and the it, hold that the district supporting De- we Hoppmann, Karin B. United States Division, in mak- Justice, its discretion court did not abuse Criminal partment On the D.C., of aberrant conduct. plaintiff-appel- ing finding Washington, for the hand, the district court because lant, other cross-appellee. ... reasoning for “explain failed Fricke, of Monte Wayne Law Offices C. in suffi- of the degree the ... Tacoma, Hester, Inc., P.S., Washington, E. appellate to allow ciently language specific cross-appellant. defendant-appellee, Henderson, review,” United States (9th Cir.1993) (emphasis added), and re- vacate sentence we court for resentenc- mand to the district explanation an accompanied ing to be grants. degree HUG, R. Judge, JAMES Before: Chief BROWNING, SCHROEDER, I. REINHARDT, PREGERSON, the facts with start our recitation We HAWKINS, KLEINFELD, Working Michael important premise: SILVERMAN, McKEOWN, WARDLAW the criminal behavior the victim of was FLETCHER, Judges. Circuit judicial examination A issue this case. SILVERMAN; behavior the defendant’s of whether
Opinion by Judge the serious- way minimizes aberrant in no by Judge WARDLAW. Dissent impact began on Mr. handgun shooting ness of the crime or its at Michael. Working, justifies its or commission. Although Michael tried to duck into the seat, passenger he was hit in his left arm Working Brenda and Michael were mar- and shoulder. After emptied Brenda September ried on 1990. Brenda and handgun stopped shooting, Michael daughters. Michael have two Michael also Bronco, was able to re-start and he sons, children, including has two Mitch and drove it into some bushes where he Micha, previous marriage. from a Evi- climbed out. dence the record indicates that Brenda marriage Michael’s was volatile from gun Brenda reloaded the and followed beginning, as was Michael’s relation- run, Michael. Michael started to but ship with his sons. Michael again, him him in wounding shot seventeen-year-old kicked Micha out of the *4 the back. Michael then turned and rushed family home. struggled, Brenda. As the two Brenda hit couple’s marital difficulties came to Michael in the head with gun several a in head 1997 when Michael discovered times. Michael struck Brenda the face sleeping teenage Brenda next to his son near-by twice and then fled into Mitch on a make-shift bed. Brenda stated bushes to hide. Brenda tried to find Mi- she, Mitch, girls merely that and the fell by driving chael her minivan back and asleep on a make-shift bed in the living along headlights forth the road so that its watching any room while television. illuminated the bushes. She looked for event, Brenda, according to Michael but, Michael for over an failing hour threatened to use that incident to obtain him, find early returned to her home in the custody legal girls by falsely of the and morning August scurrilously alleging engaged that she had home, After she returned Brenda at- in sexual misconduct with her step- minor tempted to wash bloodstains from the hood son. She also claims that he threatened to of her car. She also burned her soiled fabricate gain custody. details order to clothing eye and hid her glasses. broken thereafter, Shortly Michael moved out of She then report called her husband the house a cottage and into located on the police domestic violence. Brenda told property. He filed for divorce a few that argued she and Michael had at the did, indeed, months later and petition for her; house and that he had struck she custody girls, alleging sole that seeing denied Michael after he left the Brenda and engaged his minor son were However, residence. police once the con- an improper sexual A relationship. show fronted her with the fact that hearing cause for temporary custody was alive, found her husband she recanted her 7,1997. August scheduled for story. owning She admitted to a .38-cali- 23, 1997, July purchased On Brenda a handgun, ber which she handed over to handgun .38-ealiber from pawn shop. police. She also consented to a search of later, picked up gun She a week on minivan, her residence and the po- where 1, 1997, August days six before the show lice located traces of blood. hearing. approximately cause At 10:45 p.m evening, that Brenda called Michael
and told him that her mini-van had broken pled guilty Brenda to assault with intent down on a through road that runs murder, degree to commit first in violation Lewis, military Washington. base of Fort 113(a)(1), § of 18 U.S.C. and to use of a him pick up She asked to come and their violence, firearm relation to a crime of daughters. two 924(c) (since § in violation of 18 U.S.C. amended). respect With to the assault Michael arrived at the Fort Lewis road offense, argued Brenda p.m. at around 11:00 a downward While Michael was Bronco, still seated Sentencing Ford Brenda the relevant vehicle, approached pulled out the Guidelines for aberrant behavior. She Second, court had the the district had before that the district argued also from the authority grant several letters written friends and fami- years of five statutory minimum sentence ly particular sig- on behalf. Of offense. for the firearm nificance to the district court were letters sons, written Michael’s two Micha and sentencing, presented Brenda evi- At part: Mitch. Micha’s letter stated in request of her for a de- support dence in conduct. First was parture for aberrant I on writing am this letter behalf of performed by Sean evaluation psychiatric you in hopes will show her Killoran, that Bren- M. M.D. It concluded I leniency. understand that Brenda depression at suffering from severe da Dad, my only if him you shot but knew Killoran shooting. time of the Dr. like one us who has lived with wrote: you might begin him then to understand a reasonable de- It can be stated with until pushes pushes person how he gree certainty of medical the defen- they completely go edge. over the I major depressive from a dant suffered know, because I been driven have there charged of- disorder at the time of by my times than I can count Dad. more ability and that her to recall and fense the events in her mind had reconstruct *5 diagno- concurrent impaired
been arguments my with all follow [The Dad] episode. ... sis of an acute dissociative Any argu- the same outline. little basic symp- severity depressive of her up ment that come and Dad cannot and her toms at the time of the offense stop. person Even when the other tries hopelessness coupled with the sense of away, when that person to walk even mark- desperate quality of her situation cry. My stop Dad will until starts to impaired judgment her usual and edly victim completely he has broken his making.1 decision keep pushing down. He will and twist- reported Dr. also that Brenda disagreement Killoran until ing words a small pressure” “extreme at the time was under major a has turned into altercation. part related in shootings, of the which was reeling and so person The other is left custody might to her concern that she lose they way know which confused don’t daughters of her two due to Michael’s up.2 Dr. Kil- of sexual misconduct. accusations son, Mitch, wrote to the Michael’s other past
loran noted that behavioral “[h]er also judge: history life-long a adherence to reflects my been mother Working Brenda has values, law-abiding lifestyle, conventional years I was nine old. She has since aggressive of behav- previous and a lack way. every step for me been there Brenda’s histo- light ior.” behavioral me, she is a stepmother is not She ry, opined Dr. Killoran also that the shoot- mom, friend, and a teacher.... She “markedly ing was out of character for talker person, a violent she is a is not in terms of her behavioral back- defendant out. I feel if it things and likes to work no evi- ground, psychiatric and there is family I would for her and her consciously planned.” dence that it was wasn’t reported increasingly be- abusive report that this she as his 1. The also indicated was depression. experience symptoms with prompted Brenda’s first a return of in- havior counseling sought for de- late anxiety, cluding floating a sense of in- "free pression feelings "helplessness.” She and timidation, impaired marked insomnia pre- family physician, who consulted her self-esteem.” antidepressant Paxil. She also scribed the psychotherapy. Al- entered into short-term sentencing, peti- Micha had 2. At the time of counseling though and the the medication custody Michael's of Brenda and tioned appeared to offer the defendant some initial daughters. two relief, separation from Michael and what her evidence, considering and as After all of this strong person success- not be today. I court that ful as am the district concluded finding,
behavior was aberrant. In so discussed, in open on the record and right wrong is a believer She court, each of the factors relevant to seven person I that. She is not a still believe enumerated aberrant behavior person bars belongs behind but Colace, court United States help per- that needs a little from a bad (9th Cir.1997). Specifically, 1231 n. to turn minds son that knows how shooting the court found that the was sin- you *My if let him. two little around nature, gular in and that Brenda had no My and me need her. sisters sisters prior criminal record. The court also ac- mom a life little need their to live like cepted opinion Dr. Killoran’s that Brenda stay girls up should. Brenda would suffering “significant depression” was nights girls to be with the when Next, at the offense. the court time sick, them more were because she loves found that Brenda under operating you By get than the world. the time pressures resulting extreme from Mi- already this letter she has served chael’s accusation of sexual misconduct and jail way and a from her [sic] months family. potential custody loss of of the chil- dren. The court also took account of the throwing key I feel that instead of family numerous letters from and friends away sending get her off should she Brenda, in support especially the letters your release for there are probation Finally, from Michael’s sons. the court very special really girls two need concluded: always I will their for this [sic] her. be what, know matter [sic] woman because Here, question there’s no in this Court’s brought up she me instead of dad. happened pres- mind that what was the *6 Next, losing daughters. the district court had it sure of her two before testimony sentencing. at Brenda’s She de- physical nied abuse but claimed to be The evidence seems to show that the
victim of verbal and emotional abuse ex-
pressure which she
is
was under when
period
years.
tending over
She testi-
the victim the case accused her of
in part:
fied
having sexual relations with one of his
yells
you
he
at
[W]hat
does is he
and
minor
I think
sons.
that set off this
you
you
towers over
and threatens
to
whole case.
away
pushes
take the kids
and he
and
just puts
he shoves. And
the fear in
sentencing guide-
Under the relevant
you.
got
And it
to
it
point
the
lines,
adjusted
Brenda’s total
offense level
daily
through July.
almost
there
for the assault was calculated to be twen-
time
Brenda testified that
the
ty-nine.
History Catego-
a Criminal
With
“I
shooting:
somebody
became
I don’t
I,
ry
sentencing range
the
was 87 to 108
just
know because ...
I
wanted him [Mi-
113(a)(1);
§
months.
See 18 U.S.C.
up
stop screaming
chael] to shut
2A2.1(a)(l)
(b)(1)(A);
U.S.S.G.
threatening
hurting
She also
[us].”
3El.l(a)
(b)(2). Finding
that Brenda’s
actions,
expressed
stating
remorse for her
conduct was aberrant and warranted de-
“truly
by
that she was
devastated
this and parture,
departed
the
downward
sorry
I’m
...
for what I’ve done and I’m twenty-one
eight,
ap-
levels to level
which
sorry to Mike.”
minimum
pears
represent
departure
to
the
necessary
bring
applicable
the
Finally, the district court had
it
sentenc-
before
Report,
ing range
the
indicated
to zero-to-six months. See
Presentence
which
Table).
Pt. A
(Sentencing
that Brenda lacked
criminal record U.S.S.G. Ch. 5
However,
whatsoever.
explanation
the court offered no
degree
Supreme
explained,
that it
2035. As the
Court
why
departed
to the
did.
district courts are accorded such deference
they “have an institutional
because
advan-
the defendant
The court sentenced
tage
appellate
making
over
courts
these
the
day in
for assault. As for
prison
one
determinations,
especially
sorts
as
charge, the court concluded
firearms
many
see so
more Guidelines
than
cases
authority
depart
it lacked
appellate courts do.” Id.
sentence,
statutory minimum
and accord-
five-year
Brenda to the
ingly sentenced
Sentencing
The
allow
Guidelines
prison.
required by
term in
As
minimum
departure
atypical
downward
case
§
the court ordered this
18 U.S.C.
language
guideline
where the
of a
appli-
is
run
five-year
consecutively
sentence to
cable but where the defendant’s conduct
words,
one-day
sentence.
other
significantly from
norm or
differs
years
sentence totaled five
prison
“heartland” of cases addressed
court further
day.
and one
The district
4(b).
1, A,
guideline.
Pt.
See U.S.S.G. Ch.
departed
have
from the
noted that it would
“
only
A
if
warranted
‘there
minimum if it had had
five-year mandatory
aggravating mitigating
exists an
or
circum-
authority
to do so.
kind,
degree,
stance of a
or to a
not ade-
the sentence
government appealed
quately
taken into consideration
Although it
by the district court.
imposed
Sentencing
formulating
Commission
justi-
can
that aberrant behavior
conceded
that should result in a sentence
guidelines
government
fy
departure,
a downward
”
different from that described.’ U.S.S.G.
that the district court erred
maintained
3553(b)).
§
§
(quoting
5K2.0
18 U.S.C.
aberrant
in this
finding Brenda’s behavior
government
As
acknowl
government
argued
also
case. The
finding
conduct can
edges,
aberrant
regard
with
the court abused its discretion
justification
as a
for a downward
departure.
to the extent of
cross-
serve
contending that the district court
appealed,
guidelines.
from the relevant
depart
Colace,
had the discretion to
downward
1, A, 4(b);
Pt.
See U.S.S.G. Ch.
mandatory min-
from the firearm offense’s
1231;
Green,
F.3d at
States v.
United
A
five-year
panel
imum
sentence.
of this
(9th Cir.1997);
sen-
court affirmed the district court’s
Fairless,
States v.
Working,
tence. See United States
Cir.1992). Aberrant conduct is conduct
(9th Cir.1999).
granted re-
*7
F.3d 1150
We
represents
departure
a “short-lived
that
view en banc.
law-abiding
life.” Co
from
otherwise
lace,
evaluating
at
In
II.
behavior falls under
whether
defendant’s
significant
Supreme
Court has
behavior,” the
“spectrum
of aberrant
ly
appellate
curtailed
review
“a convergence
district court
consider
Koon,
adopted
decisions.
the Court
Fairless,
Colace,
fact,
ly
n. 2
the province
The evidence also
the dis
character
trict
Moreover,
court’s determination
the defen
for the defendant.
the letters
significant
dant was suffering
depres
from
highlighted
strong
the defendant’s
familial
psychological pressures
sion and
own, Michael’s,
ties with her
children.
time of the offense. Brenda had been
has been
appropriate
This
held to be an
depression prior
treated for
to the shoot
Pena,
consideration.
See United States
addition,
ing.
psychiatric
evalua
(10th Cir.1991).
1494-95
tion conducted
Dr. Killoran concluded
Finally, the district court appropriately
suffering
“major
that Brenda was
from a
considered the factor of Brenda’s motiva-
depressive disorder” at the time of the
crime,
committing
namely,
tions for
offense. This conclusion was based on Dr.
protection
family.
of her
Killoraris review of the defendant’s medi
records,
Thus,
journal
cal
entries
the district court did not
prepared
err
July
the defendant
December 1996 to
concluding that six of the Colace factors
1997, and
diagnostic
on
series of
inter weigh squarely in
Again,
Brenda’s favor.
views he had with the
Al
defendant.
it must be remembered that none of these
though
psychiatric
a second
examination of
factors,
combination,
singularly
justi-
or
defendant,
pursuant
made
to a court
fies or
excuses Brenda’s conduct in
order,
determined that
“did not
However,
teaches,
way.
as Colace
do
suffer from a mental disease or defect that
*8
upon
bear
whether she acted out of char-
necessary
made her
to form the
unable
in
day
question.
acter on the
act,”
finding
intent to commit
is
government
seriously disputes only
with Dr.
inconsistent
Killoraris find
factor,
argues
one
that the shooting
ings that
the defendant suffered from a
cannot be considered
as
aberrant
a matter
event,
significant depression.
any
In
to
“spontaneous.”
of law because it was not
the extent that there was a conflict in the
past
our
While
decisions
have “to
evidence, it
province
is within the exclusive
concept
some extent relied on the
of ‘sin
of
evidentiary
the district court to resolve
”
gularity
spontaneity’
or
in making the
v.
inconsistencies. See Inwood Lab.
Ives
Green,
determination,
Lab.,
aberrant behavior
844, 856-58,
2182,
456
102
U.S.
S.Ct.
(1982)
(quoting
1101
bribery
aberrant
in a
any single
factor was
behavior
and con-
have never held
fact,
(af-
In
case); Pena,
at 1323.
our
See id.
dispositive.
spiracy
records
acting out of
ing that the defendant
the factfinder’s choice between them
Martinez,
134,
207 F.3d at
In
character.
clearly erroneous.
cannot be
overturned the district
the Second Circuit
564,
City,
Anderson v. Bessemer
470 U.S.
de-
departure where the
court’s downward
573-74,
1504,
court stated that “an aberrant behavior
required
A district court is
unless the con-
departure is not warranted
for the extent of the
articulate
reasons
a marked
duct at issue is both
“in sufficiently specific language
unlikely
past
from the
to recur.”
is
Henderson,
appellate
allow
review.”
Id.
appeal
time of the explain assigning depar- its reasons for logical pressures suffering she was under not inconsistent with the abuse of ture is time, family support at the letters of by Koon. promulgated discretion standard friends, history, criminal her lack of noted, the re- As the Seventh Circuit has singularity of the event. Even if furthering quirement “indispensable is might have reached a differ- judges other goal Sentencing the ‘fundamental conclusion, ent Act, place is to federal sen- Reform which the district court’s account of the [i]f uniform, objective, and ra- tencing on plausible light of the rec- evidence (or nonintuitive) articulable, tional least entirety, ord in its the court of viewed ” Horton, States v. basis.’ United though appeals may not reverse it even Cir.1996) (7th (quoting sitting convinced that had it been as the Pullen, fact, States v. weighed trier of it would have Cir.1996)). differently. evidence Where there are
1103 n case, mandatory five-year minimum sentence the district court offered for how it arrived virtually explanation § no under 18 imposed U.S.C. by depart to downward its decision n Why twenty-one? levels. twenty-one V. or fifteen? The court
Why not eleven herein, For the reasons stated the de- difficulty it “much merely stated fendant’s sentence for assault with intent to time in the sentencing this defendant to commit murder is and the VACATED resulting deprivation with the penitentiary matter REMANDED for resentencing. of her her children because aberrant using The defendant’s sentence for a fire- enough. This is not To review behavior.” arm relation to a crime of violence is with the defer- the district court’s decision AFFIRMED. deserves, ence it we need know reasoning degree departure. behind WARDLAW, Judge, Circuit with whom Therefore, we must speculate.3 We cannot KLEINFELD, joins, Judge, Circuit court for remand the case to the district dissenting: of the resentencing explanation and for an it degree reasons for the I respectfully dissent.
allows.4
majority, by agreeing
that Brenda
Working’s
conduct warrants
IV.
aberrance,
meaning
has
found new
cross-appeal,
Brenda
her
supported by
term —one
our jurispru-
that the
court had dis
maintains
district
which, by
expan-
dence and one
its sheer
depart downward on the manda
cretion to
siveness,
every
is at odds with the views of
tory
five-year
minimum
sentence for the
Working
other circuit. Brenda
committed
panel
firearm offense. As did the
before
murder,
attempted
a
“at-
premeditated
us,
reject
argument.
See
we
her
tempted” only because
relentless
Working,
general
I. the help pick up out to her and to children. arrived, attempted he she to lure When are drawn from following facts by talking him Bronco out of his Ford by Brenda as a basis for those admitted him Failing reconciliation. to coax from re- plea, presentence her set forth in the car, produced the Brenda the .38 and un- Brenda, objected or port and not through loaded it the window of the Bron- testified to Brenda. co, arm, shoulder, hitting Michael in the Working mar- and Michael were Brenda ducked, avoiding Michael back. more They ried in were a middle-class 1990. injury, escape serious was able $500,000 in at least assets. couple with by driving Brenda’s continued assault into employed as a revenue auditor for She was embankment, Bronco, exiting the an Washington, Department the State meanwhile, Brenda, running away. re- employed by He a con- Revenue. gun cartridge loaded the with the extra from company. struction He had two sons Mitch, along. then prior marriage, thought bring who was 18 she had She Micah, 22. sentencing, Michael, time of who was drove the van near shined the They daughters, ages had 2 and 4. him, also two out, him headlights got on and shot in turned, attempted the back. He to “rush By Brenda and Michael December in slug her” and was met with another marriage counseling. Brenda sought joined in They struggle. chest. While treated for psychologi- had never been gun attempted Michael to wrest the during problems, cal but was referred Brenda, she beat him the head with counseling family doctor about marriage to her anti-depressant point stopped wrestling, for an medication. There it. At one she in the was no evidence of domestic violence take him to telling Michael that she would household, testimony other than Brenda’s hesitated, pointed he she hospital. As “pushed that she once Michael down.” gun his face. Michael struck her eyeglasses, the face to remove her break- 16, 1997, July petitioned for On Michael them, ing away again. and ran As he hid alleged he that he petition divorce. among the two hours woods over to his sleeping had discovered Brenda next (1) maneu- sought custody night, son Mitch. He of the two middle of the Brenda (2) girls, caring during road; for whom he had been along parked vered the van shift, day night working woods; while headlights shining with the into the divest- restraining order Brenda from (3) left the van to search for Michael ing cause the marital assets. The show (4) him, area; and, failing to find lighted hearing August was scheduled for procedure. systematically repeated this point, approached At one two women filing after the
Within week
Brenda,
okay?”
you
and asked
“Are
van
petition,
divorce
Brenda took action. On
respond but covered her
23, 1997,
Brenda did not
July
paid
she
a .38 caliber
identity.
her hands to conceal her
handgun
Top
pawn shop.
from the
Kick
face with
that Michael had not survived
heartland of cases
the Guideline. To
Assuming
attack,
early
returned home
question,
resolve this
the district court
*12
the
Sunday morning.
clothing
She burned
must make a refined
assessment
the
eye-
hid
wearing
had
the
she
been
outcome,
many
bearing
facts
on
in-
a
glasses Michael
broken beneath
by
vantage point
day-to-
formed
its
covering in a
She
plastic
flower bed.
black
day experience in criminal sentencing.
report
911 to
Michael for do-
then called
Koon,
greeted
The
were
518 U.S. at
The
police
mestic violence.
S.Ct. 2035.
having
false tale of
been
with Brenda’s
majority
finding
errs in
the district
and threatened with a
physically assaulted
court’s “discussion” of the seven factors
by
night
Michael the
before. She
gun
Colace,
from United States v.
story
in this
a fabricated
even included
(9th
Cir.1997),
a
constituted
supported
that could have
her inno-
detail
“refined
supposed
assessment” of the
facts
murder: she stated to
cence of Michael’s
which remove
from the
this case
heartland.
throwing
her
police that while Michael
incorrectly
It also
accepts without exami-
yell
ground,
she heard another voice
to
nation the district
factual
court’s
conclu-
him,
get going,”
creating
thus
“Let’s
happened
that “what
pres-
sions
was the
person
the “killer” was the
inference that
losing
sure of
her
and that
daughters”
two
during
alleged
attack on
with Michael
what “set off this whole
was “when
case”
only
came clean
when she
her. Brenda
victim in
the case accused her of hav-
that, despite
plans
her
learned
best-laid
efforts,
managed
ing
all
Michael had
sexual relations with one of minor
her
to survive.
troubling aspect
sons.” But the most
that,
majority’s
having
is
ac-
opinion
guilty to a two-count
pleaded
information,
cepted the district court’s erroneous con-
second
which
superseding
(1)
charged
premedita-
that Brenda:
“with
clusions,
“protection
it deems this
of her
kill” Mi-
tion did assault with intent
indeed,
family”
a
legitimate,
justifying,
(2)
chael;
during
this crime of violence motivation for
to kill her
attempt
Brenda’s
“intentionally
a .38 caliber revolver.”
used
husband.
statutory
pen-
For Count
maximum
Although
district
and the ma-
court’s
twenty years imprisonment.
alty included
laudable,
jority’s
sympathies
human
are
required
mandatory
Count
consecutive
years.
minimum term five
misplaced.
are
The facts
this case
sufficiently
not
unusual to remove it
are
II.
court’s
from the heartland. The district
majority begins
with a sensible
“factual
Brenda’s moti-
conclusions” about
truth: district courts have broad discretion
by the record
supported
vation are neither
sentencing.
Supreme
Court has
As the
finding
nor a
for
legitimate basis
“a
explained,
district court’s decision to
Rather,
fac-
assault out of character.
two
...
depart
from the Guidelines
will
which,
or lack of
spontaneity
tors —one of
deference,
most
be due
cases
substantial
openly
is
dismissed
the ma-
planning,
the traditional exercise of
embodies
other,
jority
the violent and brutal
and the
Koon,
sentencing
court.”
discretion
crime,
ad-
nature of the
is not even
dis-
Before a certain ing of conduct under test aberrant of the case must be found un- aspects applied. for it fall enough usual outside heretofore point-blank Brenda shot Michael from A. him, kill range. When that did not she major- court nor the Neither district continued the attack until she had satisfied requisite in the heartland ity engaged At point herself that he was dead. one analysis. since Koon have even Few cases midnight she during prolonged her mission changed have addressed how Koon her ran out of ammunition and reloaded However, analysis. behavior the aberrant relentlessly Michael gun. pursued She Eighth and the Tenth Circuits both hours, carefully and at least two methodi- have in the aberrant behavior held cally searching attempted for him he as anal- requires Koon both heartland context *13 picked up in the woods. even hide Brenda the fac- ysis inquiry and an into whether empty casings shell and counted them may be upon tors relied to find aberrance make left no to sure she evidence. She Benally, considered. See United States (10th plenty opportunity, of time and both 1068, Cir.2000); 215 F.3d 1072-77 Kalb, during the 426, before and commission 105 F.3d 429 United States v. (8th Cir.1997).1 Kalb, crime, upon to reflect her intended course the court re- change district court had not of action and to direction. At no manded because Kalb, analysis. See 105 engaged during Koon time the horrible crime did Brenda at F.3d think twice and withdraw from the attack. fact, interrupted she never her evil actually gave The district court here help scheme nor did she at time her Koon, Maj. nodding Op. to see at deference bleeding wounded and victim who she 1099, majority neither it nor the en- but lying knew was somewhere the woods. gaged analysis.” in a “refined Both me- assistance, When she did call 911 for it was factors in chanically applied Colace Michael, not to save but to save herself. isolation, for how case regard without Thus, places the heinousness of this crime nothing to it. But compares others like squarely within heartland. it makes Brenda’s conduct about this case attempted less than a severe “heartland” injuries The severe to the victim also case and factors make it murder several undermine the district court’s decision to egregious. far more depart. The bullets that hit Michael did damage. injuries arm serious The to his planned the murder for at least Brenda required surgeries three and it took two gun and re- purchased week. She plates pins metal and 178 screws and pick turned it she took Michael off up; upper hold his arm policy; she concocted a sto- shattered bone her insurance ry place. to lure Michael to a deserted area. Michael will never be able discouraged may question responsibilities 1. Koon call into the use of the ties and tor.”); are a fac- Archuleta, relationship by focusing on the States v. 128 F.3d Colace factors 1446, (10th Cir.1997) (holding individual and the Guidelines 1451 that a between factors "entirely as a whole. Several courts have concluded based on Archuleta’s care support dependents” not be considered of three was not certain factors Wind, warranted); already by because accounted for United States v. 128 F.3d are 1276, (8th Cir.1997) example, reject- (stating family Guidelines. For courts have 1278 factors, discouraged may only ed the use of economic see United ties are be consid- Martinez, 133, cases); (2d extraordinary ered in States v. 207 F.3d 138 United States v. Cir.2000) ("[T]he (D.C.Cir.1996) improperly Dyce, re- 91 F.3d 1466-67 district Garlich, (same); lied on claim that he was under United States v. 951 F.2d Martinez's Cir.1991) (same), pressure pay and a motivated the desire to 164 defen- history, factory”), family responsi- dant’s criminal Green, see United States v. the workers Burleson, bilities, (9th Cir.1997); see United States v. Garlich, (5th Cir.1994) By emphasizing (stating F.2d at 164. that "a defen- employment family dant’s and his ties the need to assess each factor and its relation- record Guidelines, ship responsibilities ordinarily the structure of the Koon are not rele- determining may very vant in is well have overruled Ninth Circuit whether Contreras, economic, warranted”); allowing fami- United States v. law consideration (10th Cir.1999) history ("[Fjamily ly and criminal factors. bullets, which combined with the district com- arm. Two court’s straighten his nerves organs sentencing hearings, to vital ments at the two lodged too close removed, body. in Michael’s are still replaced to be clear that the court Koon heart- are attempted number of murders A fair analysis stereotypical land with its own injuries: interrupted or result no Brenda, Michael, perceptions and their conspiracy police; murder thwarted proceedings. divorce Here, however, gunshot that misses. The district court found that “there’s no caught damage was not until the question in this court’s mind that what and Michael had taken several was done happened pressure was the of losing her only things bullets. The that made this However, daughters.” two Brenda had a murder were luck and attempt and not custody of their two until daughters she Michael’s resilience. kill tried to their father. Brenda told the court’s majority accepts the district court-appointed psychiatrist that Michael defending her rationale for “lioness cubs” guy.” was “not a bad Brenda’s own testi- the commission of the crime. But Brenda mony court’s find- also belies district anything anyone or dur- defending was not *14 kill ing. explained by trying She that ing predator, this crime—she was the him protecting she was the kids from “al- majority accepts The also the Michael. legations continuously that he made on family support as stressful situation added). only (emphasis us.” Yet the alle- departure. the aberrant behavior The gation she mentioned was the one about in the of divorce Workings were midst sleeping together. Brenda and Mitch She Although readily appar- it proceedings. is allegations mentioned no about the two stressful, proceedings ent that such are custody supposedly children whose she they are not unusual.2 Nor was this an testimony losing. feared Brenda’s later is questions unusual divorce. It involved the “I revealing more of her true motivation: custody property division of that of just him protecting myself get was out among peo- commonplace are middle-class face, door, him my get out of the Indeed, ple with children and assets. added). (emphasis leave me alone.” Bren- far post-breakup Brenda’s outlook was Michael, to kill da tried not because she many in divorce more secure than wives losing daughters, her but worried about job, signifi- proceedings good had —she herself,” “protecting she was because assets, cant and a home in which was she “yelling” him and “tower- she did not like living By approving children. the with her no ing over” her. Yet there is evidence the district court’s reliance on stress physically the record Michael com- proceedings, divorce difficult but was not abusive toward Brenda. Brenda occurrence, monplace for an as basis car; job; helpless. She had a she had a departure, aberrant behavior downward money; managed the and there would she majority require- Koon disregards the the than a week. proceeding be a court less analysis. ment of heartland the brings This to the third basis for us B. decision, legal sys- court’s that the district her” Brenda had tem had “failed because The district court’s conclusion that its restraining against order Michael sought a findings de- support factual downward The state court had denied. which the troubling It even parture enough. is is asked, justice, when “Is that however, district troubling, one exam- more when courts, sought help from the from she findings ines the record because the are law, by that failed her?” The reason supported the evidence. When (found at experience States: 1999 2. If common does not bear this United Thus, out, http://www.census.gov/prod). divorce do. In in the State of statistics 1997 42,000 marriage. as Divorces Washington, approximately is almost as common there were 29,000 affected more that one million marriages divorces. See United filed in 1990 Bureau, id. Abstract children nationwide. See States Census Statistical (11th Cir.1997); v. lenient standard for a United States failed to meet the against alleged Withrow, Cir.1996); Michael’s restraining order however, violence, is that there domestic at Dyce, Carey, 1470. Michael, testified, as Brenda was none. a downward de- Seventh Circuit reversed system violent. So the physically was not parture because the defendant’s actions legally was not not “fail her” —she did apparently “were the result of extensive By sought. the relief she entitled to planning spread and were out over a fif- ruling majority’s district court’s —and period.” teen-month Id. self-help, even to the extent of affirmance — attempted case, early An First Circuit murder, apparently is now con- (1st Russell, F.2d 18 States Cir. Circuit. doned the Ninth 1989), majority jurisdic often cited
C.
be
“paradigmatic,”
tions as
aberrant
Hill,
havior
A.
case. See Rachael
Com
majority
out
dismisses
of hand the
Character, Choice,
ment,
and “Aberrant
government’s argument that
con-
Brenda’s
Aligning
Sentencing
Behavior”:
Criminal
duct cannot
deemed aberrant because
be
Blame,
Concepts
With
Moral
65 U. Chi.
Although it
spontaneity.
lacked
discusses
(1998).
circuits, L.Rev.
of other
Russell:
the aberrant behavior law
acknowledge
majority opinion
fails to
Fargo
driver of a
Wells
armored
missing
key factors
truck, had no criminal record. A bank
spontaneity
plan-
and lack of
conduct—
mistakenly
part-
handed Russell’s
very
ning
factors relied on
—are
ner,
messenger,
truck’s
extra
majority
allowing
of other circuits in
aber-
$80,000.
*15
money bag containing
rant
departures.
behavior
initially yielded
temptation
men
and
split
proper
The circuits are
about the
A
keep
money.
decided to
the
week
majori-
of
A
definition
aberrant behavior.
later, however, they
admitted what
Third, Fourth,
ty of the circuits'—the
had done. Russell returned all the mon-
Fifth, Seventh,
Eleventh,
Eighth,
and Dis-
ey
kept,
cooperated
that he had
trict of Columbia Circuits—have followed
fully
investigation
in the
of the crime.
the Seventh Circuit’s formulation that:
Russell,
The nonexclusive factors Although minority jurisdictions courts by the Circuit Zecevic are cently Second have not made spontaneity an absolute The Second Circuit looks representative. requirement, it continues to be a crucial to: example, factor. For Second Circuit
(1)
criminal
singular
nature of the
apply
Zecevic refused to
(2)
act;
the defendant’s criminal rec-
drug importation
Zecevic’s
offense be
(3)
ord;
degree
spontaneity
cause, although he
previously
been
n
conduct;
(4)
inherent
in the
planning
law-abiding
employed,
and his criminal
pressures acting on the defen-
extreme
family,
behavior shocked his
Zecevic “initi
dant,
any
including
psychological disor-
ated an elaborate
smuggle
scheme to
suf-
ders from which he
have been
drugs into Sweden and carried out that
(5)
offense;
fering,
the time
of the
plan over the course of several months.”
the defendant’s motivations for commit- Zecevic,
736;
163 F.3d at
see also Mar
crime,
ting
including any pecuniary
tinez, 207
(rejecting depar
F.3d at 137-38
(6)
therefrom; and
gain he derived
engaged
ture for defendant who
in thir
mitigate
efforts to
effects
cocaine);
import
teen-month scheme to
crime.
Contreras,
(stating
If we were to
behavior);
Ziegler,
States v.
planning
absolutely pre-
would
(10th Cir.1994)
However,
(finding
departure.4
applying
clude
even
test,
long-term
that defendant’s
involvement
totality
of the circumstances
precluded
with controlled substances
de
planning, the violent nature of the crime
parture).
and the lack of
evidence that Brenda
only recently joined
departure.
feat
The Second Circuit
an aberrant behavior
For ex-
holding minority
view. See Zecev
ample,
circuits
ic,
in Withrow:
Previously,
We have
omitted).
Green,
that
footnote
The court found
suggest-
we
planning.
cause
spree, during
eleven-week crime
inappropriate because Colace’s
departure was
ed a
at least a dozen bank
which he committed
well-planned:
the crime was
robberies, precluded the aberrant behavior
marijuana
signifi-
operation
Green’s
Id. at 1232.
departure.
no rationale for
well-planned;
cant and
other than
proffered
the behavior was
limited the
Courts also have
aberrant
money
Green and his co-defendant
only
departure by applying
behavior
admits he was
to share. Green
planned
minor,
relatively
that involve
nonviol-
cases
at
a few
involved
the scheme for
least
ent
The term “aberrant behavior”
crimes.
months;
was at
suggests
the PSR
this
is found in the introduction to the Sentenc-
Therefore,
years.
on this rec-
Guidelines,
least two
ing
Sentencing
in which the
it does not seem that there were
ord
explains that it had “not dealt
Commission
fully
taken
mitigating circumstances
single
with the
acts of aberrant behavior
by the Guidelines.
into account
may justify
higher
at
probation
that still
departures.”
through
offense
levels
Green,
Similarly, in
Picking up
analyzing
on this
Colace we
the few cases
aberrant behavior
violence,
in the
courts
expanse
to limit the
of the total-
context
extreme
attempted
ity
any pre-planning
test and harmonize it
have found that
all will
of circumstances
departure.
an aberrant
majority
preclude
with the
test:
behavior
Weise,
example,
For
United States v.
held that there is an “aberrant
We have
(8th Cir.1996),
*17
Eighth
F.3d 502
the
Circuit
spectrum”
determining
in
when
behavior
conclusion
reversed
district court’s
that a
the
behavior
should
departure
aberrant
“heavy night
murder committed after a
a “conver-
apply. Courts
consider
drinking,”
id.
was aberrant behav-
gence of factors” and should take into
explained:
The
ior.
court
“totality
account the
of circumstances”
spontane-
considering
when
where a defendant’s Weise’s conduct was neither
thoughtless.
Unprovoked,
along
spectrum
behavior falls
the
and
ous nor
got up from the
where Max-
grant
departure.
whether to
a downward
Weise
table
seated,
room,
limit;
when all
and
well was
walked across the
But there is
is said
knife,
done,
truly
in
an
re-
question
eight-inch
the conduct
selected
butcher
must
table,
an
turned to the
and then stabbed
departure
a short-lived
from oth-
be
law-abiding
Maxwell twice in the chest.
these
erwise
life.
degree
Despite
precipitous departure, the dis-
sault with intent to commit first
mur-
Working
day
trict court did sentence
to one
charge.
der
merely probation
jail time—not
the as-
—on
circumstances,
conduct
the district court
Weise’s
offered no reasoned ex-
planation
why
departed
behavior.
at all.
single
act of aberrant
The
court listed factors and
pres-
found them
Paster,
a man
Similarly,
at 507.
Id.
ent or
engage
absent but did not
in heart-
knife after she told
killed his wife with a
analysis,
why
land
did not explain
ongoing
numerous and
af
him about her
culpable
conduct was less
than the Sen-
There,
district court found that
fairs.
indicate,
tencing Guidelines would
and did
not amount
to aberrant
killing
did
not connect the factors it considered to its
ample
time
behavior because “Paster
n "
depart.
decision to
stabbing
in the minutes
to
preceding
whether to murder his wife”
motivating purposes
think about
One
Sentencing
that “the number of times Paster
and
Guidelines was to eliminate
disparities in
thought
sentencing.
Stephen
his wife indicates that he
See
stabbed
being
Breyer,
Sentencing
Past
The Federal
about the act as it was
done.”
Guide-
er,
Key
lines and the
Compromises Upon
Michael who
III.
premeditated
the brutal and
manner of
upon
her attack
him.
It is unfortunate
I return to the issue of discretion. Dis-
that the
to conduct
district court’s failure
granted
trict courts are
discretion because
analysis,
Koon heartland
to do more than
special expertise;
of their
when
do
factors,
simply recite the Colace
and to
rely
special expertise,
on their
their
supported
reach conclusions not
worthy
decisions are less
of deference. Cf.
evidence creates room for the conviction
(“Koon
Kalb,
requires
for how it arrived at its decision to by twenty-one Maj. downward levels.” Op. agree, at 11422. I but would add that