United States v. Hungerford

1H3 avoid in order to obligation, an right —and claim. infringement an bring

laches—to on Trademarks

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Competition re- to Smoker’s

Creamery’s response at advanc- was aimed for admission

quest laches, Creamery’s position

ing time, the heart out of it cut

the same registra- request to cancel

Creamery’s mark and “ribbon-design”

tion Smoker’s “Tillamook register

application mark. Smoker

Country word Smoker” extensively prior to 1997 marks

used both Creamery’s usages, according

and those

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confusion summary correctly granted court

district respect to the to Smoker with

judgment claims.

registration

AFFIRMED. America, STATES of

UNITED

Plaintiff-Appellee,

v. HUNGERFORD, Defendant-

Marion

Appellant.

No. 05-30500. Appeals, States Court

Ninth Circuit. July

Argued and Submitted 13, 2006.

Filed Oct. Falls, MT,

torney, plaintiff- Great for the appellee. GRABER,

Before: REINHARDT and LEW,* Judges, Judge. Circuit District GRABER, Judge: Circuit trial, jury After a Defendant Marion conspiracy, was convicted of robbery, seven counts of and seven counts using a firearm in relation to a crime of violence, Act, in violation of the Hobbs §§ 1951 and U.S.C. and 18 U.S.C. 924(c)(1) (c)(2). appeals She her conviction of four robbery counts of and the four using related counts of sentence; appeals firearm. She also imprisonment she received 57 months of counts, for the conspiracy robbery concurrently, plus run 60 months for the charge first firearm and 300 months for charges, each of the other firearm to run consecutively. We affirm.

FACTUAL AND PROCEDURAL HISTORY Defendant met Dana in Sep- Canfield tember 2001. In Canfield moved employed into her home. Neither was at In get money the time. order to pay rent, Canfield and Defendant decided to trial, rob a convenience store. At Canfield testified, “Marion said that going she was go spree. have to on a crime And since problems stuff, she walking has I de- cided that I pair would do it.” The drove together looking around at potential places Hoovestal, Firm, Palmer Hoovestal Law They to rob. decided on a convenience PLLC, Helena, MT, for the defendant- store called 3-G’s. March Defen- appellant. dropped dant him off at the 3-G’s and nearby drove to a Seykora, James E. laundromat. Assistant Canfield MT; Attorney, States robbed the at Billings, gunpoint, and Anna store rendez- Peckham, S. Assistant laundromat, United States At- voused with Defendant at the * Lew, California, The Honorable Ronald S.W. sitting District the Central by District of Judge designation. for the United States District Court for Jackpot Casino rob- questions found about money. her the gave robbery. discussed bery. of the 3-G’s Defendant and Canfield guilty Defendant statement that Defendant false first robbery was the The 3-G’s give impede to the detective to planned carried armed robberies of Montana series Further, investigation. they agreed his instigation, Defendant’s by out Canfield establish an alibi that Defendant should and received of which she proceeds the robbery. Jackpot At during the next the robbing to Next, testified Canfield spent. robberies, and AmPride she April on Casino Cenex Bottles & Shots called a store location by employees to the when she He drove himself had been seen 2002. him a at again waited just Defendant the while entered the establishments before and gun used a Again, he laundromat. in. Defendant Consequently, robber came robbery the to proceeds the delivered of the to remain at the home planned not jury found Defendant The Defendant. while Canfield committed couple’s landlord robbery. Bottles & of the Shots guilty robbery. the next that, told De- after he testified Canfield Canfield, Defendant did According to rush that the adrenaline about fendant location; “case out” the next help him robberies, to “she wanted accompanied him everything” up ... to she left “most crimes, so she in the more involved be what to do. Can- go about where to and help partici- to be—she wanted

wanted to on Magoo’s gunpoint at June field robbed 6, 2002, May Canfield robbed On pate.” home after- he returned 2002. When Casino, using a firearm. De- Jackpot ward, gave and he Defendant was there ahead of Can- into the casino fendant went money her the that he had stolen. many peo- to tell him how and called field many robbery tills were at inside and how committed an armed ple were Canfield Defendant jury The found operating. Bar on June the Second Shift robbery, a Jackpot Casino guilty him that es- help did not case Defendant challenge on does not conviction that she beforehand, nor did he tell her tablishment appeal. to After- planned business he rob. what ward, to gave proceeds he all the though, similar involvement

Canfield described Defendant. Alpine Casino in both by Defendant The two AmPride robberies. and Cenex robbed the Circle Canfield Winners Casino; Alpine De- together to the drove 2, 2002, Again, De- July using a firearm. entered, counted the number

fendant location, and she not scout the fendant did there, working and were employees who robbery. She stayed during the home the informa- report to the car to returned commit going to knew that Canfield was inside, then went to He tion Canfield. specifi- robbery did not know another returned to gunpoint, robbed the casino gave proceeds cally where. Canfield waiting, and car where Defendant was too, Defendant. robbery, of this Similarly, at the money. gave her store, convenience Defen- participation AmPride Although Cenex her direct signaled minimal, into the store first dant went Defen- these later robberies proceed with that it was safe to to Canfield stop commit- did not ask Canfield dant Defen- robbery. convicted accepted robberies. She ting armed robberies, she those of both of dant source, and the knowing their proceeds, here. challenge those convictions does not pro- crimes periodic these proceeds from had to only couple means the vided the robbery, De- AmPride After the Cenex their financial needs. to ask meet Defendant telephoned tective Ewalt Cir.2004), (9th meeting jas-Avalos, 377 F.3d they had a chance After Ewalt, denied, 1188, 125 Defendant and Canfield Detective rt. 543 U.S. S.Ct. ce they ought string (2005). to end the 1396, 161 decided L.Ed.2d 192 They out a mapped of armed robberies. a trail out of town” and to “leave strategy DISCUSSION an plan was to rob estab- stop. then supports A. evidence the con- Sufficient Montana, Butte, go then lishment robbery using victions fire- place and rob another there “us- Missoula arm. as had

ing the same mask MO” been They trav- used in the earlier robberies. first, argues, Defendant that there Butte, room, a hotel eled to rented support was insufficient evidence they possible targets. together scouted from the stemming convictions armed rob They selected an establishment called Shift, Magoo’s, of beries Second Winner’s Gramma’s. Canfield went there on When Circle, and Joker’s Wild and thus that the 2002, 27, July against robbing he decided it it district court erred when denied her to rob and instead chose Joker’s Wild. Rule persuaded. 29 motion. We are not in during Defendant remained the hotel convicted Defendant of the Afterward, robbery. this armed Canfield conspiracy charge, a conviction that she gave proceeds, Defendant the and both of challenge appeal. does not on In Pinker checks, destroyed together them the which States, 640, 646-47, ton v. United 328 U.S. they along had obtained with the cash. 1180, (1946), 66 S.Ct. 90 L.Ed. 1489 the police night arrested Canfield that Supreme Court addressed a factual situa hotel; the Defendant was arrested later. tion to similar the one at hand. In that arrested, being Before Defendant contact- case, brothers, the defendant Daniel and acquaintance ed an and coaxed her to Walter, were conspiring convicted of police make a false statement to the Butte violate the Internal Revenue Code and also concerning identity the of the Joker’s Wild of substantive violations of the Code. robber, to throw them off track.

There was no evidence that Daniel had STANDARDS OF REVIEW directly participated in the commission of offenses, the yet substantive the Court We review de novo a district upheld his on charges convictions those as court’s denial of a motion judgment of well as on conspiracy the count. The acquittal under Federal Rule of Criminal Court did so because there was a “continu Johnson, Procedure 29. United States v. conspiracy” ous “no (9th evidence of the Cir.2004). 980, 357 F.3d 983 We re affirmative part action on the of Daniel light view the evidence in the most favor necessary which is to establish his with government able to the to determine drawal from it.” Id. at any whether rational trier of fact 66 S.Ct. 1180. could “And long partnership have found the essential so as the elements of the crime continues, beyond crime a reasonable partners doubt. Id. the act for each other carrying it forward.” Id. We de review novo whether a noted, As challenge Defendant does not statute is void for vagueness. United (9th sufficiency underlying of the evidence States v. Rodriguez, 360 F.3d 953 Cir.), denied, conspiracy conspired cert. conviction. She 543 U.S. 125 S.Ct. (2004). commit with Canfield to Similarly, L.Ed.2d we the whole series constitutionality robberies, review de novo the of a armed a continuous se- criminal quence. sentence. United States v. Bara There is no evidence that Defen- punishment provided act to withdraw addition to the any affirmative dant took ongoing conspiracy before such crime of ...— from violence occurred. To question robberies in four (i) imprison- be sentenced to a term of accept contrary, she continued years[.] ment of than 5 not less of all the robberies spend proceeds 924(c)(1)(A)®. §Id. to conceal the purposefully and worked subsequent the case of a second or actively plan helped crimes. She subsection, conviction under robbery. Accordingly, there is suffi- Butte person shall— support challenged cient evidence (i) be sentenced to a term of imprison- conspiracy liability under the convictions years[.] ment of not less than 25 of Pinkerton. doctrine 924(c)(1)(C)®. §Id. Alternatively, additionally, the rec- any Notwithstanding provision other support ord contains sufficient evidence to law— aiding convictions under an Defendant’s theory liability abetting violation 2(a). (ü)

of 18 To aid and abet an- U.S.C. no imprisonment imposed term of crime, necessary commit a it is other to under this subsection shall run “in that a defendant some sort associate any concurrently with other term of im- venture, that partici- himself with the he prisonment imposed person, on the in- in pate something in it as that he wishes to cluding any imprisonment term of im- about, bring by that he seek his action to posed drug for the crime of violence or Nye it & Nissen v. make succeed.” Unit- trafficking during crime which the fire- States, 613, 619, 766, ed 336 U.S. 69 S.Ct. used, carried, arm or possessed. was (1949) (internal quotation 919 93 L.Ed. 924(c)(l)(D)(ii). § Id. Pursuant to the omitted). to helped plan marks Defendant statute, court the district sentenced Defen- robberies, tar- potential she scouted years dant for her five first firearm gets, knowledge she had that her co-con- conviction and 25 for each of the robberies, spirator carrying out the convictions, to run other six firearm con- willingly accepted proceeds and she secutively. reason, too, For each of the crimes. urges Defendant us to find that the stat- supports disputed sufficient evidence unconstitutionally vague. ute is She ar- convictions. that, gues specifies because the statute 25-year imposed that terms are to be 921t(c)(l) § B. Title 18 is not un- U.S.C. subsequent” “second or convictions but not constitutionally vague. conviction, subsequent for “each” she could convicted Defendant not have known that she would be sen- knowingly using carry seven counts of or 25-year minimum sen- multiple tenced a in furtherance of a crime of ing firearm tences. violence, in violation of 18 U.S.C. 924(c)(1) (c)(2). vagueness A statute is void for when it states, § The statute give “adequate people notice to fails pertinent part: in ordinary intelligence of what conduct is who, [A]ny person during and relation arbitrary if it prohibited, or invites ... any crime of violence for which discriminatory enforcement.” United may prosecuted in a court be (9th Tobacca, 906, F.2d 912 States, States v. 924 uses or carries a of the United added). Cir.1991) who, (emphasis Defendant firearm, any or furtherance of crime, firearm, shall, unaware that argue does not that she was possesses such 1118 Booker, 220, robbery in relation to States v. 543 U.S. 125 S.Ct.

the use of a firearm Rather, by 738, § 924. she claims prohibited (2005), is 160 L.Ed.2d 621 does not only that the statute failed to warn her of Dare, change that rule. United States v. penalty for com- potentially draconian (9th 634, Cir.2005), 425 643 cert. de F.3d - - armed mitting multiple robberies.1 nied, -, U.S. 126 S.Ct. L.Ed.2d -(2006). assuming vagueness argu that a Even exclusively sentencing, ment focused Finally, argues Defendant giving than on criminal conduct rise rather Eighth precludes lengthy Amendment sentence, cognizable, to the is the statute mandatory consecutive minimum sentences Supreme vague. is not Court has § imposed argu here under 924. This meaning §of interpreted 924. Deal v. directly precluded by ment also is our States, 129, 137, 508 113 S.Ct. United U.S. v. precedent. United States Parker. (1993). 1993, 124L.Ed.2d 44 Its terms are (9th Cir.2001). 1114, 1117 F.3d readily mandatory Its understandable. AFFIRMED. nature, whatever its merits or demerits as matter, policy invites uniform enforce REINHARDT, Judge, Circuit ment, arbitrary rather than or discrimina concurring judgment. in the See, tory e.g., (upholding enforcement. id. Although precedent forecloses Marion consecutive, multiple, lengthy sentences Hungerford’s Eighth Amendment chal- 924); Angelos, § under v. United States 924(c) (2006),1 lenge to 18 U.S.C. under (10th Cir.2006) (same), 433 F.3d which she received almost all of her 159- petition filed, cert. 75 U.S.L.W. 3034 year imprisonment, term of it cannot be (U.S. 2006) (No. 06-26); July irrational, inhumane, left unsaid how (4th Camps, States v. 32 F.3d is, absurd the sentence this case Cir.1994) (same). plain reading A moreover, particular how this is a sentence ambiguity, statute reveals no as con predictable by-product of the cruel and recognizes. sistent precedent

unjust mandatory minimum sentencing C. The sentence violates neither the adopted by Congress. court, scheme This Fifth Eighth

nor the Amendment. individuals, along many with previous- has ly urged Congress to “reconsider its harsh Finally, brings Defendant two mandatory scheme of minimum sentences constitutional claims. argues She that the now, possibility parole;”2 without the mandatory minimum sentence established Hungerford’s yet case serves as another by § 924 violates the Fifth Amendment’s forceful reminder that the scheme is se- guarantee process by of due removing dis verely badly broken repair. and need of judiciary cretion from the it in placing Although authority we lack the either to prosecutor. already hands of the We reform these statutes or to rejected have reconsider the argument that mandato Eighth ry principles by minimum Amendment by adopted sentences established stat Court, process. Supreme ute violate due those United States v. who have both Wilkins, (9th Cir.1990). 911 F.2d power responsibility 339 and the to do so Supreme The Court’s decision in United should return our sentencing federal Parker, challenges only § 1. Defendant four of the 924 1. See United States v. 241 F.3d counts, (9th Cir.2001); Harris, dispute 1117 years so she does not United States v. 55 (9th Cir.1998). 154 F.3d mandatory sentence. Harris, 154 F.3d at 1085. n judge myriad could not consider controlling day in which the to a scheme factors, fairness, potential mitigating including proportionality, are principles Hungerford’s severe form of informed discretion. Borderline prudence Disorder, Personality which can alter one’s reform urged Congress to we When perception reality in a manner similar to man- unnecessarily harsh § 924 and other schizophrenia led to and has numerous laws,3 sentencing each additional datory attempts Hungerford’s part. suicide a firearm in connec- for use of conviction judge psychia- could not consider a under a crime of violence tion with testimony regarding Hungerford’s trist’s 924(c) mandatory 20-year § for a provided reality/ very, capacity low to assess her low later, Months Con- consecutive sentence. functioning, of intellectual and the level 924(c)(1) § to mandate 25- amended gress “very easily that fact she is victimized.” mandatory consecutive sentences year Especially important, pro- the court was An to Throttle Crimi- offenses. Act such into account fact taking hibited from 105-386, Guns, Pub.L. No. nal Use of follower,” was “a was (1998). result, 1(a), As a § 112 Stat. 3469 direction” and suf- “susceptible] outside 924(c) requires 5-year § sentence now “suggestivity.” fered from Also out of of use of a firearm single for a conviction Hungerford’s vulnerable and bounds of 25 mandatory consecutive sentences ' Shortly chaotic state. before the robber- additional count. 18 U.S.C. years for each years, her husband of 26 with whom ies 924(c)(1). children, she had four had moved'out of gun, touched a Hun- Although she never home, a result of her largely their as dete- count of convicted of one gerford, was condition, and, Hunger- mental riorating robbery, seven counts of conspiracy, ford, finding impecunious herself and with- of use of á firearm relation seven counts job'or any prospects employment, out judge of violence. The district to a crime begun living compan- had with a new male to 5 on the first count sentenced her ion, dependent, on whom she became Dana years consecu- of a firearm and 25 of use Canfield, principal the robberies. tively on each of six additional counts. judge Hunger- could the consider that Nor addition, judge the district sentenced ford, age at the of was a with no conspiracy 57 months for the to serve history string to the prior criminal convictions, the robbery months for the Canfield, by armed robberies committed concurrently each to run sentences a apparently spotless, that she had led 924(c) § the sen- gives other. Because judge could law-abiding existence. The discretion, judge no choice or ex- tencing significant the not even take into account statutory mandatory cept impose to the injured in physically facts that no one was sentences, judge was forced to sen- the and that the total loss any of the robberies yeár-old mentally a 52 Hungerford, tence $10,000. less than resulting from them was criminal prior with no disturbed woman law, Hunger- the under important, record, in prison. to over 159 What Most in extremely limited role the crimes ford’s to take into judge permitted was not the also irrele- she was convicted was of which sentencing Hungerford when account sentencing. Although she con- vant to her anyone conscience of who should shock the her and aided and abetted spired with proportionality that believes reasonable Canfield, in a companion, male new-found a crime and the sentence is a between robberies, partic- her string of'armed sentencing. of fair necessary condition 3. Id. adopt sentencing a cruel in the robberies themselves was Constitution to

ipation scheme, limited, though not a cruel and unusual particularly compared when quite one, surely During people’s representatives role. most the dominant to Canfield’s robberies, dismally mark. Hungerford took no ac- should aim above this low Here, it difficult driving escape than Canfield to or is to the conclusion part tive other easing mandatory sentencing or the that the current of the crime from the scene cruel, immensely if imposed later robbed. After a laws have an stores that Canfield barbaric, Hungerford, 159-year she sentence on a se- detective contacted police any verely mentally person whatsoever in disturbed who participate did not merely played fairly passive robberies and re- a limited and role in subsequent the during no one was money following from Canfield his several robberies which ceived It physically of those robberies. is worth harmed.4 commission Hungerford’s noting that mental disorder cruel, only Not is the sentence it is likely ability affirmatively to impeded It a imposes imprison- absurd. term of conspiracy after contact opt out of the years, Hunger- ment of 159 under which accept and even to the fact that police, the ford be incarcerated until she would in engaged she had been criminal conduct. age absurdity reached the of 208. is Finally, Hungerford at no time did person- by judge’s reading best illustrated to ally carry gun, personally or even a or use Hungerford supervised terms of re- 924(c), anyone; yet, threaten under this lease which she would un- required be to too, fact, is deemed At irrelevant. dergo emerged when she from prison to- sentencing, Hungerford’s time of counsel ward the end of the first decade of her presented substantial evidence of her se- century. third judge Hungerford told mental opin- vere illness. Attached to this 72 hours of release from “[w]ithin summary ion is a of that troubling testimo- custody,” year 2162—she must —in ny. office,” “report probation to a proportional

Under fair and sentenc- and while on supervised release she must scheme, ing judge just “participate would not be testing substance abuse to allowed to consider miti- compelling urinalysis these include not more than 104 circumstances, gating rather he Hungerford would tests.” He further ordered required give “participate be them substantial program for mental weight health,” in determining proper sentence. and “pay part or all of the cost of “severe, treatment, Even if mandatory penalties ... by as determined the U.S. probation are not unusual the constitutional officer.” What sense,” Michigan, Harmelin v. if U.S. should do she were too old or feeble 957, 994, 111 S.Ct. 115 L.Ed.2d program, 836 attend the mental health (1991), they “may Although be cruel.” Id. judge Certainly, failed to advise her. re- Congress may permitted be quiring under a defendant and a judge district holding 4. We felony, possession are foreclosed from the sen- role” for his first of co- caine, tence to be in violation of the cruel and un- Eighth "does not the violate Amend- punishment usual clause because of its severi- ment”); 30-31, Ewing, 538 U.S. at 123 S.Ct. ty by Ewing California, Harmelin and v. 538 (holding 1179 that a defendant's "sentence of U.S. 123 S.Ct. 155 L.Ed.2d 108 years prison” to life in a third strike (2003). Harmelin, 995, 1009, 501 U.S. consisting golf of the theft of three clubs "is (rejecting requirement S.Ct. 2680 a that the grossly disproportionate and therefore mitigation court consider cumstances, or individual cir- Eighth pro- does not violate the Amendment’s holding that a defendant's punishments”). hibition on cruel and unusual imprisonment pa- "sentence life of without an yet agreement nature cannot the he reached in a charade of this engage firearm — system justice. of respect for our government increase with a sen- the received hand, years. tence of 32 On the other precisely type the The case at hand is Hungerford, plead guilty, who refused to Congress question that should make case illness, large due to her part mental was by a cruel worthy ends are served what convicted, pon aggressively charged, In and sen- sentencing scheme. and inflexible bene question, Congress would dering prison. prose- tenced to 159 Kennedy, who by observing fit how Justice cutor used his discretion to the send men- soft-on-crime, let hardly can be called tally-ill Hungerford prison until she reject jurist, alone a has come liberal he a far turns while administered Fifteen mandatory sentencing. minimum lesser one-fifth as punishment only— asserting “in the constitutionali years ago, great principal put the who the lives of —to sentence,” mandatory for the ty [life] of a case, Hungerford’s only others at risk. cocaine, Kennedy “of possession of Justice prosecutor judge and not the district on its wisdom.” judgment no fered] authority had the to exercise discretion. Harmelin, 1007, 111 501 U.S. at S.Ct. 2680 J., (Kennedy, concurring). But three Hungerford 159-year received her sen- the American Bar Asso years ago, he told tence because she refused to enter into a accept “I can neither the ne ciation that plea agreement government. with the the wisdom of federal mandato cessity nor so, willing Had able and to do she she been many minimum sentences. In too ry signifi- a undoubtedly would have received cases, mandatory minimum sentences are cantly lesser term than the 32- principal’s unjust.” Anthony Kenne unwise and M. year Hungerford tragically sentence. re- Justice, dy, Supreme Associate Court cooperate government fused to with the States, Speech at the American the United plead guilty, likely most because her Meeting (Aug. Annual Bar Association hold a fixed mental illness caused her to 2003). Kennedy’s chief con Among Justice that she was innocent. Even after belief mini mandatory that the “federal cerns is her, re- Hungerford convicted “sentencing mum statutes” transfer discre at sen- peatedly declared her innocence judge tion from a to an Assistant U.S. stating any- that “I not done tencing, have Attorney, not much older than the often go any I with thing illegal. did not about Id. Both this court in Harr defendant.” I I take gun. don’t like them.... didn’t it, agree and I as a member of is5 it ... any money.... honestly I didn’t do of dis Kennedy that this transfer Justice going you’re don’t do whatever please So that “misguided,” “[m]ost cretion is did, you what think I to do to me for sentencing discretion should be with light I it.” of her because didn’t do Also judge, prosecutors.” not the Id. illness, may not have Hungerford mental example Hungerford’s case is a textbook of the offenses even understood the nature 924(c) permits prosecutor, of how Yet, she was convicted. incredi- for which judge, appropri- never a to determine the Hunger- that bly, prosecutor believed Hungerford’s co-conspirator, ate sentence. sentence, reflecting ford received a fair Canfield, principal in all of the criminal acts and her refusal both her robberies —he owned and brandished He told cooperate government. with the robbery, testified pistol .22 each nothing judge to do with that had Harris, ("We sentencing judges just el of discretion be vested in 154 F.3d at 1085 feel circumstances.”). mitigating system punishment lev- to consider demands that some appropriate can and take action to and the defendant blame listen counsel Court, can blame blame cur- prosecution, rationality return reason and to our her. Congress. convicted rently malfunctioning sentencing system. process, in this Early on so, required Because I am to do I concur attorney. her have went to We States judgment, nothing in the more. on our side. We understood cx-edit some suggested are. This summarizes the testi- the facts We attachment what be there and that she Stratford, would cooperation mony of Dr. David William Mr. Canfield. She against cooperate psychiatrist, forensic who evaluated Hun- that, Your Honor. to do Mr. chose not gerford. He testified that another route. There is chose Canfield Having previously 1. be- completed here but Marion Hun- no one blame 6,000 10,000 psychiatric and prior tween herself.... gerford evaluations, interviewing Hungerford was in any way respon- was Hungerford But if arduous, painful experi- “one of the most sentence, it was that sible for her absurd my in During ences life.” the evaluation Personality Disorder pre- her Borderline Hungerford “very fragmented,” had admitting guilt her vented her from “[wjould patterns,” “fixed and she at times imposition of a sentence avoiding thus unresponsive look at the floor and be for Surely, one cannot years prison. of 159 periods of ten or minutes so.” reasonably Hungerford suffering fault overwhelming from and severe mental ill- 2. Hungerford suffers from “severe layman’s terms, Hungerford, may ness. disorder,” personality borderline described explained predicament have as well as psychosis as “a line between and other anyone possibly pro- could when she diagnoses. It varying diagnosis. is a It is sentencing her innocence at claimed mood, pervasive stability A actions. explained that: They can be delusional. can have my my robbing, crime is not crime isn’t They fixed ideas that are incorrect. can anybody, I hurting because don’t do suicidal, moody, often be and have difficul- that, my using weap- crime is not ty integrating picture.” the big get money. My being crime is psychological 3. The impairment which stwpid. my That’s crime. And it looks affected is going like I’m “one of the most to be faced with a lot of years being stupid. psychological severe proba- disorders. It’s bly suffering more severe than from It anyone is difficult to believe that famil- schizophrenia.” iar with all of the facts and circumstances relating Hungerford’s to Marion commis- Hungerford’s 4. signifi- “mental state sion of the offenses which she was con- cantly capacity to appre- diminishe[d] her appropriate victed would believe that an criminality ciate and conformed conduct.” sum, sentence is 159 in prison. Hungerford’s 5. belief that she was not case, Hungerford’s the result in as well as guilty product is “a of her prior our mental illness.” applying decisions the federal mandatory laws, sentencing minimum con- sentencing, Hungerford At did not why court, Kennedy, firms Justice have “a rational and factual understanding many others have concluded that there is doing of what she’s here” in the courtroom. no necessity preserving wisdom or 7. Hungerford is a “follower” whose mandatory current minimum sentencing then, regime. only by “susceptibility behavior is marked question, is wheth- er Congresses direction,” this and future will suggestivity. choose outside con- presently does not 8. society, based on her danger

stitute hostile to she was been

years which

others, treatment. and could benefit from GLANTON, AL- on behalf of

Tommie PLAN DRUG PRESCRIPTION

COA similarly plans,

and all other situated al.; Mackner, behalf of the

et Tara Plan, Comprehensive Health

Kmart

Plaintiffs-Appellants,

v. INC., Defendant-

ADVANCEPCS

Appellee.

No. 04-15328. of Appeals, States Court

United Ninth Circuit. Herman, Stephen J. Herman Mathis Ca- LLP, Gerel, Orleans, sey Kitchens & New and Submitted Oct. 2005. Argued LA; Jr., Casey, Herman David S. Mathis Filed Oct. Gerel, LLP, Casey Diego, Kitchens & San

CA; Alexander, Mary Mary E. Alexander Associates, Francisco, CA, for the & San plaintiff-appellant. Ondrasik, Jr., D.

Paul J. Martin Schneiderman, Serrón,' Steptoe Eric & G. LLP, WA, D.C.; Peter S. Kozi- Johnson LLP, Phoenix, nets, Steptoe & Johnson AZ, defendant-appellee. for the Labor, Radzely, Howard M. Solicitor Solicitor, Hauser, Timothy D. Associate Appellate Hopkins, Elizabeth Counsel Williams, Mary F. Special Litigation, Attorney, Secretary amicus Trial Labor, WA, Department of United States D.C. Firm, deVries,

Douglas K. deVries Law California; Dean, Sacramento, Pa- Ronald Palisades, Bach, CA; Amy cific Francisco, CA, for ami- Policyholders, San Policyholders. cus United

Case Details

Case Name: United States v. Hungerford

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 12, 2006

Citation: 465 F.3d 1113

Docket Number: 05-30500

Court Abbreviation: 9th Cir.