United States v. Dorothy Menyweather

America, STATES UNITED

Plaintiff-Appellant, MENYWEATHER,

Dorothy

Defendant-Appellee.

No. 03-50496. Appeals, Court

United States

Ninth Circuit. 13, 2004. Oct.

Argued 7, 2005. Dec.

Resubmitted Dec. 2005.

Filed 9,May

Amended Marsh,

Niсholas Trial Attorney, .A. Division, Criminal Section, Public Integrity United States Department Justice, D.C., Washington, for the plaintiff-appel- lant. Newman,

Elizabeth A. Deputy Federal Defender, CA, Public Angeles, Los for the defendant-appellee.

Before: KLEINFELD, ANDREW J. HAWKINS, GRABER, and SUSAN P. Circuit Judges.

ORDER opinion filed on December is amended as follows: slip opinion On page line 17 [431 692, 696], “Also, beginning with be- ” cause .... and ending on page line 697], “Haack, 6 [431 F.3d at 403 F.3d at 1003.” replace delete and with the follow- ing:

Thus, if the imposed resulted from an application incorrect of the Sen- tencing Guidelines,1 and the error was 1. Other circuits have reached question different views on the appellate of whether review condition, harmless, ordinarily remand mental and emotional diminish- will family cir- capacity, extraordinary ed court for further sentenc cumstances, that the district permitting the district ing proceedings, reimposed has after remands twice proper remand consider court on Meny- from this court. United v. States with other along sentence Guidelines (9th Cir.2002) weather, Fed.Appx. 36 262 Kimbrew, 406 F.3d sentencing factors. disposition) (“Menywеather (unpublished 1153; Riggs, v. at also United States see I”); Menyweather, United States v. 69 (4th Cir.2005); 136, 136-37 410 F.3d (9th Cir.2003) Fed.Appx. (unpublished 874 Haack, F.3d at 1003. 403 ”). (“Menyweather II disposition) amendment, Judges Hawkins With this appeal pending, this third was the While petition to the deny and have voted Graber Court decided States v. Supreme United rehearing en petition for for rehearing Booker, 738, 160 543 U.S. 125 S.Ct. grant to Judge banc. Kleinfeld has voted (2005), altering significantly L.Ed.2d 621 rehearing for petition petition the for in decide legal the context which we must rehearing en banc. Before reviewed appeal. we the has been of full court advised The proper a departure de novo whether rehearing and no petition for en banc under the constraints forth in the Unit- set has a vote on judge requested the court of Sentencing ed States Guidelines n nn - it. (“U.S.S.G.” “Guidelines”). or See 18 petition for petition rehearing 3742(e). Now, instead, review banc DENIED. No rehearing for en are court’s for “reason- the district sentence re- rehearing or for petitions further Booker, 125 at 765-66. ableness.” S.Ct. may be filed. hearing en banc Also, previ- the district cоurt was whereas ously according required OPINION Guidelines, the are now “effec- Guidelines GRABER, Judge: tively advisory.” Circuit Id. at court, course, time, did not States The district of For the third the United of and sentenced imposed Defen- have the benefit Booker appeals upon the sentence that the Menyweather’s assumption under Dorothy dant conviction Defendant fraud, conclude mandatory. were We to one count of mail Guidelines guilty plea its court not abuse §§ and 1346. the district did violation of 18 U.S.C. 1341 by downwardly departing from objects the district discretion Moreover, if the dis- the Guidelines. even eight-level departure court’s departure impermissi grounds were include an cause post-Booker sentences should Haack, authority Guidelines); the district court's 403 F.3d at assessment of under the ble Compare depart 3553(a)(5) United under Guidelines. (holding de that because 1002 (2d Selioutsky, 409 States v. F.3d Sentencing Com mands consideration of the Cir.2005) ("An determining appli- error in statements, sentencing policy mission’s range availability or cable Guideline Guidelines must consider whether the authority type pro- departure would Crosby, at authority depart); 397 F.3d could a sentence error that render cedural Arnaout, (same); with United States v. Booker.")) under United unreasonable (7th Cir.2005) ("[T]he concept Jackson, Cir.2005) ‘departures' has rendered obsolete in been advisory (holding Guide- that consideration of world.”). this case post-Booker Because provisions, including departures, is re- lines pre-Booker, we imposed a sentence involves quired); Crawford, States v. post-Booker question here. not decide that do (11th Cir.2005) (remanding be- strayed offense, from au- Counter, theft according to Dr. trict Guidelines, any part of a psychic available “manic thority denial accompanied by harmless view of the sentenc- trauma compulsive coping error was 3553(a) ing factors listed 18 U.S.C. behaviors.” Dr. Counter had evaluated (which court can hours, now consider Defendant for three-and-one-half Booker) after view of our belief administered and a psychological reviewed impose test, that the court would the same sen- spoken counsel, with Defеndant’s again, having steadfastly tence maintained reviewed letters submitted Defendant’s position its in the1face of opportunities two members. Dr. Defendant made Finally, to revise its sentence. cross-examination, we con- Counter available for resulting clude sentence was rea- which the declined at the first sonable, and we affirm. sentencing hearing. govern- Nor did the any expert ment offer psychological testi-

FACTUAL AND PROCEDURAL mony of its own. BACKGROUND argued Defendant also for a departure began working Defendant as an adminis- unusually because of the important role employee trative at the United States At- played that she daughter, the life of her torney’s Angeles office in Los in 1990. In years who was 11 old at the time of the 2000, she was indicted on 10 counts of theft sentencing first hearing the Since funds, of government fraud, mail and wire flaneé, murder of her Defendant has been pleaded guilty fraud. She to one count of parent the sole primary and the source of mail having fraud and admitted to used financial support for daughter. her government credit cards for unauthorized personal purchases $350,000 hearing argument, After of between the district $500,000. court departed by levels, eight resulting range of zero to 6 sentencing, At parties agreed the with months. The court sentenced Defendant probation the office that Defendant’s of- years probation, five of upon the condi- fense level and that her Criminal tion that days she serve 40 proba- History I, Category was resulting in a tion, weekends, on jail- consecutive in “a sentencing range of 21 to 27 months. type institution.” The court also ordered requested, Defendant govern- and the $435,918, 3,000 restitution totaling plus ment opposed, a six-level downward de- addition, hours of community In service. parture because of Defendant’s prohibited Defendant was from applying circumstances mental and emotional for a loan or line of credit without the condition. In support request, of her De- prior approval probation office. fendant produced the evaluation of Dr. Counter, Barbara Cort psy- forensic appealed, and we va chologist. cated the sentenсe and remanded for re- Dr. Counter characterized Defendant as sentencing because the district court had suffering from “severe symptoms post- given no reasons for “the direction and traumatic stress” degree occasioned two the departure.” Meny I, events: her parents abandonment weather 36 Fed.Appx. at 263. After as a child remand, and the violent murder of her first district court denied flaneé, bloody aftermath of which government’s she motions for indepen an witnessed pregnant while five months psychological dent evaluation of Defendant with their child in 1989. Defendant’s and additional investigation by proba- just punishment for the provide and to office, procedures those ruling tion offense; not, been, requested but were could have hearing After a sentencing.

at the initial (B) adequate to afford deterrence to cross-examined at which conduct; criminal Counter, pre- its the court reaffirmed Dr. (C) public from further protect of the sen- support In vious sentence. defendant; crimes of the spe- tence, adopted recited and the court (D) thе defendant with fact and conclusions of findings cific needed educational or vocational train- law, noting that it relied on well as care, or other correctional ing, medical post-conviction rehabilitation. Defendant’s manner; ‍‌‌‌​‌​‌‌‌‌‌​​​‌‌​​​​‌​‌‌​‌‌‌​‌​‌​‌​​​‌​​‌‌​​​​‌​‍in the most effective treatment II, again vacated Menyioeather (3) available; the kinds of sentences remanded, court’s sentence (4) and the sen- the kinds of sentence (1) relying that the court erred holding tencing range established for-—- rehabilitation without post-conviction on (A) applicable category of offense (2) government, to the giving notice applicable category committed depar- the extent of the explain failed to forth in guide- defendant as set ture, depar- bases for from the as distinct lines— re- Fed.Appx. at 874-75. On ture. 69 (i) by Sentencing the Commis- issued the mand, again court denied the district 994(a)(1) to section of title pursuant sion develop- for further government’s request 28, ...; United States Code and reaffirmed its sen- ment of the record sentence, (ii) that, of the the in support excеpt provided as section tence. findings of facts adopted expanded are in effect on the date the 3742(g), court sentenced; that included cita- of law or and conclusions defendant is depar- to cases in which downward tions (B) proba- of a violation of the case degree had been af- comparable of tures release, applicable the supervised tion or its earlier firmed. The court eliminated policy statements issued guidelines or rehabilitation. post-conviction on reliance Sentencing pursuant to the Commission 994(a)(3) of title United section timely appealed ...; States Code sentence. (5) any pertinent policy statement— AND LEGAL STANDARDS (A) Sentencing Com- issued OF STANDARDS 994(a)(2) of pursuant to section mission REVIEW ...; Code title United States (B) that, provided in section except Booker, sentenc- In the federal wake in effect on the date 3742(g), is by 18 U.S.C. governed now ing is defendant is sentenced. 3553(a), district courts which states that (6) following factors: consider” the to avoid unwarranted “shall the need among defendants disparities sentеnce (1) and circumstances of the nature who have been with similar records history and charac- the offense and conduct; and of similar guilty found defendant; teristics of the (7) to to restitution the need (2) im- for the sentence the need the offense. any victims of posed— out (A)to pointed Court Supreme the As the the seriousness of reflect 3553(a) Booker, law, makes the Guidelines offense, respect for the promote 630 consideration, range required remand to consider the

sentencing proper Guidelines 3553(a)(4), the court “permits but along with other fac- sentence see light statuto- Kimbrew, other 1153; tailor 406 see tors. F.3d at also Booker, as well.” 125 S.Ct. at ry concerns Riggs, United States 136- (“The id. at 757; also district see (4th Cir.2005); Haack, F.3d at courts, not bound to the Guide- apply while 1003. consult

lines, must those Guidelines sentencing.”). account when into take them case, In this question first whether the district with began circuits, many Like other have correct respect Guidelines sentence. With challenges to a address thus continued question, to that the usual standards interpretation aрplica court’s because, although apply: review the district “[We] review[] Guidelines tion of interpretation is not bound Sentencing court’s Guidelines, it novo, still them for should “consult de ap Guidelines district court’s as to the sentence.” appropriate advice plication of the Sentencing Guidelines Kimbrew, States v. United the facts this case for of discre abuse (9th Cir.2005) (citing tion, and the district court’s factual find 767). S.Ct. at Several of our circuits sister Kimbrew, ings for clear error.” that, comply have held with Booker’s parties at agreed, and we see mandate that district “take [the courts to, agreeing no error their the Guide into account sentencing,” Guidelines] when lines to 27 range months. normally at 125 S.Ct. courts must question The second is whether the dis- determine and consider the correct Guide properly trict court understood its authori- See, range. e.g., lines States v. ty to depart downward the then- (8th Haack, 997, Cir.), 403 F.3d 1002-03 — mandatory Guidelines. Booker Because denied, U.S.-, 276, cert. 126 S.Ct. departures excised the de novo review of (2005); L.Ed.2d 163 246 States v. United previously mandated (2d Cir.2005). 18 103, Crosby, 397 F.3d 111-12 3742(e), 765, § 125 S.Ct. at hold that Thus, we resulted imposed sentence the appropriate reviewing standard for from an incorrect of application the Sen Guidelines,1 district court’s depar- determination of its tencing error was not and the harmless, authority discretion, is ordinarily ture abuse of see we will remand to the States, sentencing 81, district court for United pro further Koon v. 518 U.S. 98- ceedings, 100, 2035, permitting the district court on 116 S.Ct. 135 L.Ed.2d 392 (11th Cir.2005) circuits have (remanding Other reached different views 1183 be- question appellate on the of whether review grounds departure impermissi- cause were post of -Booker include an sentences should Guidelines); Haack, ble under 403 F.3d at authority assessment of the district court’s 3553(a)(5) (holding § 1002 that because de- depart Compare under the Guidelines. United Sentencing mands consideration of the Com- (2d Selioutsky, v. States 409 F.3d 118 statements, policy sentencing mission’s Cir.2005) (“An determining appli- error in must consider whether the Guidelines range availability cable Guideline or the authority depart); Crosby, at 397 F.3d departure authority type pro- would be Arnaout, (same); with United v. States error that cedural could render (7th Cir.2005) (“[T]he concept F.3d Booker.”); unreasonable United under ‘departures' has been rendered obsolete in Jackson, (6th Cir.2005) v. world.”). post-Booker Because this case (holding advisory Guide- consideration of imposed pre-Booker, a sentence involves we provisions, including departures, lines is re- post-Booker question do not decide that here. quired); Crawford, States v. (1996), place ing is, before the the standard Guidelines—that an as encour- aged review enacted in factor statutory departure.3 de novo U.S.S.G. 5K2.0, §§ 5K2.13. Under Selioutsky, 2003.2 Accord 409 F.3d at 119 the version of § 5K2.13 in effect at the time of (holding that abuse of discretion is the Defen- dant’s sentencing first a departure as an appropriate reviewing, standard appropriate is if “the defendant committed review, element of reasonableness whether suffering offense while signifi- from a departure permissible under cantly reduced capacity,” mental Guidelines). defined that, We conclude under this standard of (A) a significantly impaired ability to review, the district court did not abuse its wrongfulness understand the of the be- by departing discretion downward for di- comprising havior the offense or to exer- § capacity minished under U.S.S.G. 5K2.13 reason; (B) power cise the or control by departing or downward for cir- behavior that the defendant knows is § cumstances under U.S.S.G. 5H1.6. Alter- wrongful. natively, even if the district court abused (2000).4 § U.S.S.G. 5K2.13. cmt. n. 1 This by departing its discretion un- post-traumatic has held that stress Guidelines, any hold that der the error disorder can be the basis for a was rendered harmless this case 5K2.13 if the “ailment distort- expanded authority court’s cir- consider reasoning[,] ed[Defendant’s] interfered cumstances related to the fac- ability with [her] make considered deci- 3553(a). tors in 18 U.S.C. sions,” and contributed to the commission way. the offense in some United States DISCUSSION Cantu, 1506, 1513, A. The district court did not abuse its Cir.1993). by departing discretion downward for The district court found that Defendant capacity” ‘‘diminished under U.S.S.G. suffers from post-traumatic stress disorder § 5K2.1S. that, and concluded because that disorder Sentencing identify Guidelines conduct, contributed to her offense a de- capacity” may “diminished as a factor that рarture was warranted under 5K2.13. not have been adequately by conclusion, considered reaching its the district court in Sentencing promulgat- clearly Commission did not crediting err the de- 4.Many 2. See departure provisions Prosecutorial Remedies and Other Tools in the Exploitation Today to end the of Children Act Guidelines were amended in 2003. U.S.S.G. ("PROTECT Act”), of 2003 Pub.L. No. 1OS- c, (effective 27, 2003). app. amend. 651 Oct. 21, (enacting 117 Stat. 650 de novo review of impose Section 5K2.13 was amended to departures). requirement additional that the defendant's significantly capacity reduced mental have 3. The district court also relied on Defendant's substantially "contributed to the commission "mental and emotional condition.” See of the offense.” Id. Because the district court § U.S.S.G. 5H1.3. We held in United v. States required apply provi- to the Guidelines Smith, 1209, (9th Cir.2003), 330 F.3d 1214 sion in effect at the time of Defendant's initial denied, 1127, 1096, cert. 540 U.S. 124 S.Ct. Johns, sentencing, see United States v. 5 F.3d (2004), 157 L.Ed.2d 927 that the Guidelines (9th Cir.1993) (holding that re- departure limit for defendant’s mental con implicate moval of discretion can provided § dition to that for in 5K2.13. De Clausе), only that, Ex Post Facto we will consider Smith, fendant conceded because of § the earlier version of 5K2.13. § district reliance on court's 5H1.3 was error under the Guidelines. 5K2.13, § courts to expressly permitting psychologist, a licensed opinion tailed impairments). consider volitional arguments government’s preference or had was mistaken psychologist that abused its discretion B. Even the court on which base information insufficient 5H1.6, § any error under U.S.S.G. did not conclusion. was harmless. qualifications, nor Dr. Counter’s challenge offer rebuttal evidence did the capacity, family diminished Unlike Although the psychologist. from another factor discouraged circumstance is under presented persuasive Guidelines, counsel government’s “family which state that court was not re- arguments,-5 responsibilities community ties and arguments. accept those quired to ordinarily not relevant” deter ties are to evalu- opportunity had the is mining departure whether a warranted. credibility under cross- (2000);7 ate Dr. Counter’s § also U.S.S.G. 5H1.6 see examination, say that the (9th and we cannot 1122, 1127 Aguirre, v. by finding her credible clearly Cir.2000) erred (referring family circumstance that Defen- opinion factor). by accepting A “discouraged” discouraged as a symptoms post-traumatic dant’s chronic may grounds departure factor under inability to make linked to her stress were “present excep if it is to an the Guidelines compulsive and to her reasoned decisions degree way tional or in some other makes acquisition behavior. ordinary different from the case the case Koon, factor present.” where the fact, finding which is In view of at To U.S. S.Ct. 2035. determine erroneous, the court did not clearly whether Defendant’s circumstances finding a its discretion abuse extraordinary, compare are we case In under U.S.S.G. 5K2.13. appropriate grant have others which district courts Cantu, interpreted require 5K2.13 to 5H1.6, departures ed downward [Defendant’s] “ailment distorted that an being mindful that some of our cases were ability to reasoning!,] [her] interfered with novo, than decided under de rather abuse decisionsf,]” and make considered contrib- n discretion, review. to the commission of the offense uted Leon, 1515; way.6 12 F.3d at see United States v. some Cir.2003), Thompson, we commented also United States (9th Cir.2002) (Berzon, J., departures §on con- downward based 5H1.6 “generally involve the de- curring) (discussing 1998 amendment situations where scheme; financially government presented four main ar- ted from Defendant’s 5.The (4) guments, Dr. Counter had not interviewed derived from its cross-ex- several any of Defendant's co-workers. at the amination of Dr. Counter second sen- (1) tencing hearing: Defendant lived as a responsible professional requirements § successful and and 6. The other of 5K2.13 are not treatment, Cantu, dispute parent, psychological in here. See 12 F.3d at 1511 with no (discussing requirements § eight years of her fiancé and 5K2.13's that the after the death nonviolent, (2) reduced began; offense be that the men- before her embezzlement scheme capacity by voluntary only tal not be caused use of Dr. Counter evaluated Defendant after drugs, and that the defendant’s criminal his- precisely her indictment and thus could not tory not indicate need incarceration to separate the traumatic effect of Defendant’s protect public). prosecution from the traumatic effect of life; (3) earlier events in her Dr. Counter family text has not did not know that members The relevant 5HI.6 sentencing. changed since Defendant's initial whose letters she had evaluated had benefit- simply caretaker of This case does irreplaceable fendant is an involve a sin- gle mother and child. children, seriously family ill The elderly, facts and and/or concluded, circumstances unusual show on de novo traumatic members.” We re- circumstances for this mother and view, child proper that a because and an relationship unusual between the of the particular nature defendant’s two. This mother has been the sole unique physical, wife’s ailments and the parent caring for at the child home and material, support emotional after school. The mother has been con- defendant Id. at 983. In provided. sistently employed since the child’s birth Aguirre, abuse of discretion applying the primary and her source financial sup- standard, upheld we a four-level downward port. security The social benefits the departure where of the defen- the death (less monthly $400) child receives than eight-year-old son dant’s husband left their are minimal and insufficient to support a parent. without a custodial F.3d at child. a special has [Defendant] rela- guess “second 1127. We declined to tionship with this child who has already that this district court’s determination case parent lost one has never been with- family involved an unusual situation.” Id. out surviving parent her sole excluding contrast, Miller, By States v. during trips. absences brief Cir1993), F.2d Unit that, also relied on the fact Berlier, ed States 1096 although grandmother Defendant’s (9th Cir.1991), review, on de novo we held great-aunt nearby, housing live their situa- were not departures appro that downward tion is unsafe. priate nothing because there was unusual novo, Were we reviewing de we would family presented. about the situations prove conclude that did not Defendant case, had parent each the children another provides irreplaceable she care that is or to care fоr them while the defendants were feasibly provided that could not an- Miller, 991 incarcerated. See F.2d at 556 other. Under an abuse discretion stan- (Tang, C.J., concurring part and dis dard, however, we hesitate “second Berlier, senting in part); 948 F.2d at 1096. guess” the district court’s conclusion that with relationship daugh- Defendant’s conclusions that reached ter, and the Defendant provides, care that Leon, Miller, Aguirre, and Berlier are con- unusual with the compared are situation that, sistent with the Circuit’s view First single parents. other As we did evaluating family departures when re- Aguirre, 214 we acknowledge F.3d at 5H1.6, sponsibilities ‍‌‌‌​‌​‌‌‌‌‌​​​‌‌​​​​‌​‌‌​‌‌‌​‌​‌​‌​​​‌​​‌‌​​​​‌​‍under courts should “particularly that district courts are suit- assess the nature of care that ed” determine factor makes a whether or provides defendant to his unusual, they case are “informed because members and determine whether “there vantage point day-to-day [their] are alternatives care that are feasible Koon, experience sentencing,” in criminal relatively comparable” the defendant’s. 518 U.S. at 2035. We there- S.Ct. Roselli, United States v. 68- fore conclude that the district court did not (1st Cir.2004) (internal quotation marks downwardly depart- abuse its discretion omitted). Here, essen- ing 5H1.6. tially relationship concluded that the be- daughter tween Defendant and her so Alternatively, even we were to argument that was not accept government’s unusual care others feasi- the that the departing on ble: district court erred this Guidelines, say if it had a departure can under the .Guidelines the we under basis harm- any believing error would be “sufficient basis for that the confidently that imposed this case. This to the same sentence would have been less because, sentence,” unusual circum- under the as a because is non-Guidelines appeal, in this present using authority third-time “any stances error the district court recognize that imposed the select sentence the sen- impose harmless”). same could—and court would be The district would— now-advisory Guide- again under the that, case, tence clearly po- in this the believed regime. lines relationship harm to the be- tential close single and her child parent tween aрpraisal,”8 available to In the “broader the a outweighed prolonged benefits of can courts after courts district period of incarceration to achieve deter- family responsibili justify consideration of rence, of protection public, punish- and ties, “history aspect an of defendant’s Indeed, the that the ment. court stated characteristics,” U.S.C. and of were probation conditions Defendant’s 3553(a)(1), extending beyond § for reasons any as other sentence I “as strenuous courts now ... the Guidelines. “District 3553(a)(3) § impose.” could 18 U.S.C. weigh the discretion to a multitude of have Cf. (directing courts to “the kinds of consider mitigating aggravating and factors that ex available”). sentences also observe We mandatory time isted at the of Guidelines goal obtaining that the district court’s sentencing, were deemed ‘not ordinari but for the restitution victims of Defendant’s relevant,’ ly age, such education as offense, 3553(a)(7), § better skills, con vocational mental and emotional served a non-incarcerated and em- ditions, record, family employmеnt sum, ployed defendant. circum- responsibilities.” ties and United States Ameline, permissible stances were consideration v. Cir. 2005) (en banc) Guidelines, (Wardlaw, J., here —if not then as concurring in dissenting part balancing of a of factors under part part) (emphasis add: ' ed). 3553(a). difficulty § providing appropri may, single parent care for a child of a ate against balanced such as when factors length C. the sentence was reason- offense, 3553(a)(1), nature of the deter able, combination considering the conduct, 3553(a)(2)(B), rence criminal factors. protection public, Finally, we turn government’s to the 3553(a)(2)(C), warrant a sentence out objections to the of the sentence length side the Guidelines. (or, precisely, more to the extent of the Furthermore, said, as we have we have departure from the Guidelines im- no doubt that the court would level). In post-Booker parlance, offense pose, the same under the adviso- essentially challenge this is to the “rea- ry regime, Guidelines sonableness” of the ultimate sentence. imposed

has the identical sentence three already. matter, Selioutsky, govern times See As a threshold arguably at 118 n. 7 (noting could ment contends the district court failed review of forego give depar- the correctness of the reasons for extent of its Gorsuch, may justify United States the district court a sentence below (1st Cir.2005) ("in world, post-Booker guideline upon ap- level based a broader sentencing guidelines only advisory praisal”). are

635 and, thereby, ture from the Guidelines United v. Working, 801, 287 F.3d (9th Cir.2002) comply (same). failed to with our mandate in Men- 806 'commonly We that, Booker, II. yweather agree We after performed have that review comparing “required court still to artic the defendant’s case with other published ulate the reasons for the extent cases in departures which have been af- departure sufficiently specific language See, firmed. e.g., Green, United States v. appellate to allow review”’ United States (9th 1321, Cir.1997). 105 F.3d 1323 In (9th 1093, 224 Working, F.3d 1102 Cir. Green, we noted departures that for a 2000) (internal (en banc) quotation marks particular factor had generally ranged be- 3553(c) оmitted); § (requir see 18 U.S.C. levels; tween therefore, one and five we ing a statement of for particu reasons concluded that a departure 15-level was an imposed); lar sentence Crosby, see also abuse of discretion. Id. 3553(c) (noting §

397 F.3d at 116 Our cases show that depar downward Supreme excised Court Book tures for capacity diminished generally er). range See, between one and four levels. e.g., United agree Malley, But we do not that the States v. dis 307 F.3d (9th 1032, Cir.2002) (five-Jevel explain trict court failed to 1033-34 the extent of its de parture; departure response here. combination of capaci to our re diminished II, ty and Menyweather extraordinary mand in acceptance the district court of respon sibility); explained Garza-Juarez, departure the extent of its from States v. (9th 896, Cir.1993) (four-level by supplementing the Guidelines its factual 913 and, departure; findings for each factor on it combination of which the defendant’s panic depart, citing agoraphobia based its decision to disorder with and coer 5K2.12); § cion describing under several other сases in which United States v. Lewinson, (9th courts had 988 departed downward on similar 1007 Cir. 1993) (four-level Although departure facts. the court did not make 5K2.13 for express comparisons long-standing' psychological problems between Defendant’s cases, case and was “well within adjust the cited the cited line with other cases facially are ments presence guidelines similar and their established for implies mitigating alone various comparative analysis indicating factors dimin culpability”). led the court to an ished eight-level depar departures select Downward importantly, extraordinary family ture. More as this court re circumstances quired 224 most often fall within a Working, range. F.3d at similar See, Leon, (six- supplemented e.g., 341 findings factual F.3d at compar departure); Aguirre, ative level citations F.3d at basis us (four-level review, merits, Roselli, departure); on the length whether the (three-level F.3d at departure). sentence was reasonable. Even before our cases, task was to Considering those and the sen- determine whether the depar- 3553(a), extent of a tenсing say factors cannot reasonable, ture was applying so our cases eight-level that an departure abuse discretion review to that question the combined effect of two factors —Defen- remain relevant after Booker. See United capacity dant’s diminished cir- Alfaro, States v. cumstances —was unreasonable. dis- Cir.2003) 3742(e)(3) (citing justified and trict expressly its sentence reviewing for probation abuse discretion whether by saying that it viewed the reasonable); the extent of a probation very conditions of “strenu- causing significant government a dis- that the has been able to veri- ous,” yet without parent-child relationship. fy computer faked certifications and of ruption —and the offense was not such nature of cover thefts. has up The entries to her Yet she incarceration, as distinct from strict that not to prison. sent been activities, financial Defendant’s on controls Menyweather to work for the Unit- went public necessary protect to or was Attorney ed in 1990 a clerical as See afford deterrence. long employee, so she was a trusted mem- 3553(a)(2); Working, 287 F.3d at 809 cf. got to promoted ber of the office when she reasoning “court’s (remanding because procurement in 1997. Almost immediate- justify to a insufficient was ly, mostly began stealing, by using the she at all for a no sentence serious resulted in procurement buy cards credit to such violence”). Also, as we men- of have crime clothes, things gift for as certifi- herself tioned, probation may of have a sentence cates, appliances, phones and ser- cellular able to made better Defendant insurance, vice, repairs, car and even com- crime, the victims of her see to restitution stole, puters. of what She sold some she 3553(a)(7). 18 U.S.C. $12,500 including computer equip- worth of unlikely are to have select- Although we Alaska, trips ment. She also took Aus- this sentence we were do- particular ed tralia, Israel, Desert, as and as well Palm ing sentencing, that is not our function. Houston, Dallas, Columbus, Birmingham, circumstances, find In these no abuse Monroe, Louisiana, all on mon- stolen (upon of discretion in Defen- ey. Menywеather planned long a week for count single dant’s a of mail conviction Caribbean, bought in the cruise with stolen fraud) probation, consisting years five money, government but was able to on the condition Defendant serve stop payment caught. on it when she was jail weekends; days plus on consecutive $435,918 restitution, paid to be first herself, stealing Meny- In addition to victim; 3,000 plus the individual hours of money weather used stolen to dramatize service; community plus prohibition a a Lady bought herself as Bountiful. She for a line applying from loan or of credit her computer, sister-in-law in Tacoma a approval probation prior without the printer, monitor and And software. she office. needy. bought computers dozen for the

AFFIRMED. $20,000 money About of the stolen organizations. contributed charitable KLEINFELD, Judge, Circuit children Vegas, She took numerous to Las dissenting: twice, and to church conference in New I The respectfully dissent. new sen- Mexico, government all on the nickel. She tencing regime justify does this abdica- eight people took to a church conference tion of duty majority’s our review. bought Atlanta. She eight plane even application of review for abuse discre- tickets Israel. Her her friends’s equates tion it no with review. govern- and beneficiaries’s travel cost the $150,000. ment about And she

For showered many Menyweather worked years, gifts her friends relatives with such administration the United States lawnmowers, Attorney’s computers, cell Angeles. During phones office in Los service, period, games, she used cred- video televisions. $53,800 it got Meny- card and other cards al- Nordstrom’s alone peoples’s $435,000— years bounty. most over found three steal weather’s was, over a thousand crooked transactions when opined, Dr. Counter “filling the social thievery finally discovered. and emotional voids created her unac- knowledged and untreated retraumatiza- The government caught up to her and tion, depression despair and with whatever managed stop payments on some of the objects external she could collect. She more recent transactions after she had self-medicatеd” with shopping trips. $419,521. agency stolen This left a travel However, Dr. Counter had never seen $16,397. A lady stuck for at the travel Menyweather Menyweather’s before law- agency, Kimura, Ms. Kenichi who had yer brought in. her Dr. Counter conceded thought dealing govern- she was with the that meeting Menyweather after she got ment —a assumption reasonable since she fired and impossible arrested made it selling travel to a United States Attor- distinguish the post-traumatic claimed ney’s procurement agent on a government emotional resulting disorder from the trau- credit card' —wrote a victim impact state- years mas before from the effects of the explaining ment that required she was trauma of a felony prosecution. federal pay back the loss to her company with monthly salary, deductions from her presentence The report Menyweath- amounting to a fifteen to twenty percent er’s 2001 sentencing recommended a pay cut that she could not afford. The guideline range months, $16,397 of 21 to 27 violation of trust had driven her to seek Kimura, restitution to Ms. the travel wrote, me, counseling. She working “[t]o $419,521 agent, and restitution to the U.S. for the Government itself steady, is the Attorney’s office. The defense urged a fair and irresistible reason to believe. downward departure to twelve months in Maybe, Japanese I am and don’t know (two custody summer, over the the rest on much about the America. What else can weekends) of Menyweather’s because psy- people, including American they believe if chological condition as described Dr. can’t believe the Government.” Counter Menyweather and because solely

Menyweather responsible had for her year suffered two severe eleven old daughter. government misfortunes her life. opposed When she was a child, departure, pointing her father deserted out that the family her trauma of gave preceded her mother her fiancee’s grandparents begin- her to her murder adult, ning young eight years raise. When she was a her thefts almost and, between, year before she went to she had completed ‍‌‌‌​‌​‌‌‌‌‌​​​‌‌​​​​‌​‌‌​‌‌‌​‌​‌​‌​​​‌​​‌‌​​​​‌​‍work for the Unit- col- lege, ed Attorney (eight years сompleted a successful internship, before the crimes), awards, generally her won very fiancee was shot dead when done well. she was pregnant pointed five months also out with his generally child. U.S.S.G. 5H1.6 visiting She had been made friends near- by, body lay responsibilities and found his as he an irrelevant bleeding consideration departure. to death.

Based on Moreover, three and a half hours inter- government highlighted tests, views and Meny- discussions with the fact nothing extraordinary that there is lawyer, weather’s and examination of being single dis- about mother and that Men- covery relatives, materials and yweather letters from daughter had chosen to leave her Counter, Ph.D., a psychologist, Barbara without supervision her when she went on told the court that in opinion, Meny- Alaska, Australia, Israel, her trips ten weather’s thefts were post-trau- caused numerous other during destinations her matic stress from these misfortunes. money. She travels on stolen had not She her; Menyweather and on daughter ly dependent ticket for her bought

even gated apartment in a daughter her lived peo- other for numerous had (though she daughter pri- attended community and her cruise Caribbean planned ple) school, imprisoned if she were vate but stopped. discovered neighbor- in an unsafe daughter would live explanation, judge, without The district grandmoth- aunt and great hood with her eight gave levels. He departed traumatized, er; Menyweather had been sen- even more lenient an Menyweather said, yet had had never as Dr. Counter for. attorney had asked than tence care; and, finally, psychiatric received put Menyweather on The district rehabilitation.” “post-conviction years with conditions five for probation again. reversed and remanded We We days community service and 40 restitution, rehabilitation” “post-conviction noted that The on weekends. served jail to be departure a basis for might prohibited be travel nothing to see that the judge did 5K2.19,2 and, § without under U.S.S.G. govern- before the got paid back agent an giving government opportunity the ment. issue, had handwrit- judge address this the for resen- and remanded vacated We justification departure it ten into his provid- the court had not tencing, because hearing. also not- sentencing after the We departure the downward reasons for ed justifi- judge given any that the had not ed that travel to order the and had failed why cation for the should be first, pursu- her restitution agent paid be (which eight brought levels the bottom 3664(1).1 ant to 18 U.S.C. months). guideline range the to zero remand, government moved for the On again In the district court after this its evaluate psychiatrist to have own leave remand, once second the more for time to do an inde- Menyweather to have its own sought opportunity an investigation of child care re- pendent post-traumatic, the psychiatrist evaluate Menyweather’s daughter if sources explanation Meny- self-medication The prison. sent Menyweather was crimes, Meny- investigate weather’s and to At the denied the motions. ability weather’s for suitable hearing, judge the would not among her extended care child that all of to show prosecution the impris- allow Angeles the Los area she was on were Dr. Counter relied letters sought op- oned. The also an upon Menyweather whom investigate from relatives and contest portunity The largesse. stolen issue. “post-sentencing had showered rehabilitation” he imposed By the same sentence Again, judge then denied the motions. judge only change daughter years time. The old. the first this time the had explained why he he was judge prosecutor time told the “No second counsel,” “justifica- though apple, He listed several bites at the even departing. mother;” single vacating “is a our mandate the sentence ef- Menyweather tions”: judge daughter required old fect a second bite. The year was entire- thirteen which, 3664(1) ("In ("Post-sentencing any 2. U.S.S.G. 5K2.19 reha- case in efforts, exceptional, victim, even if under- bilitative is a the court shall the United imposition of a taken a defendant after all other victims receive full resti- ensure imprisonment for the instant offense term of any receives the United States tution before appropriate basis for are not an restitution.”). resentencing departure when the defendant offense.”). for that law, rеimposed saying, then the same sentence provide just punishment, afford nothing changed deterrence, that’s in the mat- adequate “there’s protect public, departing.” only I am effectively ters which provide the defendant with justification judge’s sig- additional was the needed educational or vocational training findings on nature defense counsel submit- and medical care.”6 Sentences are still to protect ted to the sentence from further reviewed Appeal, Courts of appeal. adopted post-traumat- In it he review is to be for “unreasonableness” theory, compared gated ic stress respect com- with to these statutory goals of munity private school with the sentencing.7 bad A serious look at the legal neighborhood, justified eight level criteria for sentencing requires that departure by the “combination of circum- imposed be deemed unreason- showing stances under 5K2.0” “diminished able. capacity, extraordinary mental and emo- Does 40 days to on serve weekends “re- extraordinary

tional condition and family flect the seriousness of the offense” of a findings circumstances.” The submitted employee trusted engaging in long run- “post-con- defense counsel omitted the ning and elaborate scheme and coverup in viction rehabilitation” reason that we re- $435,000? which she stole over Obviously jected previously. Impulsive not. shoplifters with a record Faced with the judge’s get obdurate can that,8 a lot more time than comply any way refusal to Congress serious with regards stealing more than mandates, given up. our we have public money as a felony $1000 with a 10 excuse, gives States v. Booker3 us our year but maximum sentence.9 days Does 40 to excuse, it is no more than an because a serve for “promote this crime respect for reading serious of the facts and the joke law the law”? It makes a of the law. sentencing still requires that this sentence Does the sentence “effectively provide the be vacated. defendant with needed educational or voca- training tional and medical care”? The United States v. Booker “excised” the only person got who counseling after the statutory provisions making the sentencing crime was the disillusioned agent. travel guidelines mandatory providing for de The court require Menyweather did not to novo review of departures, but held that undergo any kind of treatment for the “the remainder of the Act” imposing the “post-traumatic stress” that the court used guidelines is constitutional.4 The Act “re- justification as a in giving her this lenient quires judges to guide- take account of the sentence. together lines sentencing goals. with other 3553(a) See 18 (Supp.2004).”5 Does the adequate sentence “afford de- “And Act requires judges crime, the nonetheless deterring terrence”? Far from the impose $435,000 to sentences that reflect the seri- sentence invites it. is a substan- offense, promote ousness of the respect money, tial amount life-changing Booker, Andrade, 3. United States v. Lockyer 543 U.S. 8. 538 U.S. 123 S.Ct. (2005). S.Ct. (2003) L.Ed.2d 621 (upholding 155 L.Ed.2d 144 a 25 year to life sentence under California three 4. Id. at 764. shop- strikes law when the third offense was $100). lifting items worth less than 5. at Id. 744. 6. Id. at 764-65. 9. 18 U.S.C.

7.Id. at 765-66. “ Many the case from ‘heartland’ cases.”12 Be- people. mоst money for

amount eagerly spend Menyweather’s volunteer sentence flies in the cause people would jail on weekends become days consider- face of all the other $11,000 per almost earn They rich. would justi- it can be imposes, ations the statute any jails portion count of a night. A lot ground only ground if the is fied on this person can “serve two day, so day as a strong indeed. It is not. Friday night, at 11:30 arriving days” by First, from the suffers booking time for before enough leaving the sen- same defect that led us to vacate just out after mid- check midnight, and “post-conviction reha- tence because sleep. home to “Protect the night go justification bilitation” the district court nothing the record

public”? There mentioned, that the district previously had Menyweather will not steal suggest gave government court never a fair Even opportunity. again, given it. oppose chance to The court refused public personally one member of government psy- to have its own allow crime, individually suffering from the (because Menyweather evaluate chiatrist until рrotected agent, travel judge repeatedly refused to allow the judge to insure that ordered the district psychiatric to obtain its own first. got she her restitution examination, non-plussed by I am the ma- sentencing guidelines? What about jority opinion’s attack on the dead, just they are not “ad- After any failing expert psychologi- to “offer mandatory. guide- visory” instead of own.”). Second, testimony cal of its contrary imposed. to the sentence lines are opinion evidence for Dr. Counter’s why judge departed from them. That is speculation little more than how the about unreasonableness is still re- Review for considering defendant must have felt may properly defer to an view. We family her father had abandoned the when sentencing decision. unreasonable Unless she was little and fiancee had been her Congress returns to and until Menyweather got psy- murdered. never guidelines, what it used to be before the chiatric treatment for Dr. totally discretionary unreviewable trial her traumas. decision, hours, supposed to assure we are Counter saw her for at most 3-1/2 that sentences are reasonable. Menyweather just at a time when had by getting been traumatized fired and ar- justification for primary the strik- rested, so that most recent trauma doubt- post-trau- was the ingly lenient sentence Dr. emotionally less affected her when by shopping theory matic self-medication only Counter evaluated her. The individu- articulated. that Dr. Counter Under counseling, al who needed and obtained so guidelines manual the district used shows, Menyweath- far as the record sentencing, “mental and emotional con- victim, agent, er’s the travel whose mental ordinarily ditions are not relevant” to de- (and financial) condition the district court partures where the defendant does not Third, prosecutor ignored. Meny- “significantly suffer from reduced mental weather’s educational and vocational suc- capacity,”11 though a mental or emotional may justify subsequent college condition cess to the traumas —a present degree” distinguish degree such an “unusual and considerable vocational success (2000). (2000); 10. U.S.S.G. 5H1.3 12. U.S.S.G. 5K2.0 Cantu, (9th Cir.1993). 12 F.3d 1506 (2000). 11. U.S.S.G. 5K2.13 years eight caught inconsistent with the criminal is prison. and sent to In- —was theory that was too disabled to func- deed, she peoples’s concern about avoiding this normally by tion these traumas. harm to their families among is the most important deterrents crime. letting Meny- rationale fór The other go days weather with 40 of weekend time Nor is it that Menyweather’s clear influ- single was that she was a mother whose ence on her daughter superior to the child would live with relatives in a bad moral training nearby her relatives would neighborhood, gated instead of the commu- provide, because, though poorer, they have nity private Menyweather pro- school $435,000. not stolen Being richer is not vided, if Menyweather prison. went to It the same thing being better. Since Menyweather is hard to see how could Menyweather has traveled all over the superior continue to standard taking world without daughter along, living getting stealing. after fired for leaving others, instead the care of judge repeatedly The district denied the the record support does not a determina- ‍‌‌‌​‌​‌‌‌‌‌​​​‌‌​​​​‌​‌‌​‌‌‌​‌​‌​‌​​​‌​​‌‌​​​​‌​‍government’s investigate motion to tion that she cannot travel for a time to situation, thereby child care preventing the prison taking without her daughter along. being record from developed. further single There are a lot of mothers. No class guidelines “family advise that ties and re- persons can be immunized from impris- sponsibilities” ordinarily are not relevant onment without assisting recruitment departures,13 though like mental health criminal enterprises by providing an incar- they can in extraordinary be cases.14 ceration-proof labor force. We,15 circuits,16 like other have held that That leaves us with the last and most ordinarily circumstances should important statutory empha- criteria only extraordinary considered harm when sized days whether the 40 to be family dependents exceeds the normal “provide[s] just served on weekends pun- disruption by imprisonment. caused But justice ishment.” is the in Meny- Where nothing “extraordinary” there is or “un- avoiding prison weather getting usual” as those terms are used days to serve on stealing weekends for sentencing guidelines single about moth- $435,000, when others steal a VCR and anything extraordinary ers. Nor is there 18 25-years or the face to life in slightest prison? bit unusual about a crimi- Does family suffering compan- drawing judge nal’s from loss of a district sentencing whose ionship and lowered income when the philosophy idiosyncratic make so idio- (2000). circumstances); 13. dinary family U.S.S.G. 5H1.6 v. 1079, (3d Cir.1991) Headley, 923 F.2d 1083 ("the 5K2.0, imprisonment single parent of a 14. was not U.S.S.G. cmt. extraordinary,” even where the woman had children). five minor Berlier, 15. United States v. 948 F.2d (9th Cir.1991), ovemded on other 17. United States v. grounds Aguirre, 543 U.S. in United States v. 738, 744, (2005). (9th Cir.2000). S.Ct. 160 L.Ed.2d 621 Castro, (9th Chestna, (1st 18. v. R.A. 365 F.3d 755 16. United States v. 962 F.2d 103 Ramirez See, also, Andrade, 1992) (the Cir.2004); Lockyer v. single Cir. fact that defendant was U.S. S.Ct. and had four 155 L.Ed.2d 144 small children was not "an (2003) circumstance.”); (upholding year unusual a 25 to life sentence United States (11th Cir.1992) (sin Mogel, v. law when the California three strikes gle shoplifting mother of two third offense was less minor children was not items worth $100). entitled to a downward for extraor- than sistency. A sentence like the one this “just”? An excessive- syneratic a sentence just flag of red that makes cyni- case is the sort like this causes ly lenient sentence the courts legislators wonder whether cism, among people prison, only not mandаtory minimum sentences to as- sentencing in- need the luck-of-the-draw where sen- rehabilitation, protection public. among the sure but terferes with case, imposed in this the third time second tence public. People have law-abiding remands, be after two should vacated right thing when thoughts doing about in- and the court should be again district wrong thing prosper those who do the case to another assign structed to Injustice is corrosive. punishment.19 avoid judge.21 think defendants who have people Some should suffered misfortunes

themselves who com- go prison, or defendants women, crimes, or or moth-

mit nonviolent

ers, single mothers. But none of these or by Congress or adopted

theories has been I am able to sentencing guidelines. explain, really explain, what BERRY, Plaintiff-Appellant, Daniel M. on in the face of judge doing has insisted repeated only remands on the basis rejected theory

some such as this. DEPARTMENT OF SOCIAL SER VICES, County; Tehama Bill Snel judge judges, Some such as son, Director, Defendants-Appellees. case,20 strongly are known for held strong views. And there was resistance No. 04-15566. judges, particularly among some district Appeals, United States Court long pre-guidelines experience, those with Ninth Circuit. sentencing to the restrictions on their dis- came into guidelines cretion when the Argued and Submitted Nov. 2005. eighteen years ago. force Now that the 1,May 2006. Filed guidelines from manda- have been reduced status, tory advisory our review authori-

ty important more rather than less may before, idiosyncracy

than it prevent

from con- altogether overtaking Atondo-Santos, Jeremiah 12:1-2. 21.U.S. v. 385 F.3d 1199 Cf. Cir.2004) (remanding with instruction that 20. See, Sears, e.g., Roebuck & United States assigned judge, to a different ‍‌‌‌​‌​‌‌‌‌‌​​​‌‌​​​​‌​‌‌​‌‌‌​‌​‌​‌​​​‌​​‌‌​​​​‌​‍the case Inc., (9th Cir.1986) Company, 785 F.2d 777 pursuant supervisory power to the Court's (remanding judge case to a new after the 28 U.S.C. after two remands judge repeatedly dismissed an indictment history stating, light "[i]n even after the case was remanded to him remands, previous case and our it is clear that Appeals the Court of with direction that the the district court would have substantial diffi- reinstated); National indictment be In- repeated, culty putting out its mind its Corp., surance v. R & D Latex 141 F.3d 916 previously-expressed that a views 66 month (9th Cir.1998) (remanding judge to a different case.''). appropriate sentence is in this summary judg- judge granted after the twice reasons); articulating ment In re without cf. Misconduct, Complaint Judicial (9th Cir.2005).

Case Details

Case Name: United States v. Dorothy Menyweather

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 9, 2006

Citation: 447 F.3d 625

Docket Number: 03-50496

Court Abbreviation: 9th Cir.