*1 DEFENDANTS WHO PLEAD GUILTY AND RECEIVE TWO-POINT REDUCTION FOR ACCEPTANCE OF RESPONSIBILITY = plead guilty defendants who H = plead guilty defendants two-point and receive
iü acceptance reduction responsibility under U.S.S.G. 3E1.1 America, Appellee, UNITED STATES FOLLETT, Appellant.
Matthew
No. 89-2386. Appeals,
United States Court
Eighth Circuit.
Submitted March 1990.
Decided June
196 re- supervised incarceration and
costs of reversal, argues the dis- Follett For lease. (1) refusing erred trict court guideline applicable the from downward psychologi- range of his sentencing because capaci- mental and diminished problems cal not a minor (2) finding that he was ty, sentencing (3) holding the participant, unconstitutional, (4) not guidelines are of involved quantity calculating discussed For the reasons in the offense. dis- below, judgment affirm we trict court. cases of the related arose out
This case McGuire, Emanuel and Michael of William of in the distribution involved who were After City, Iowa. around Iowa LSD in and sup- Emanuel, was Follett’s his arrest drug trans- Follett to discuss plier, called that he had Follett told Emanuel action. had days in 7 of LSD 20 sheets sold 15-30 waiting approximately for customers told Follett Emanuel sheets of LSD. anything” be- to “touch not want did agreed to deal his arrest. Follett cause of supplier Califor- Emanuel’s directly with complete the was unable nia. Follett supplier because California transaction involving Eman- any to make sales refused Although arrest. following Emanuel’s uel Ill., appel- Cohen, Chicago, D. Geena from made purchase ever no controlled lant. jury grand to a Follett, testified Emanuel Iowa, Moines, Paff, Des A. Lester approximately had sold Follett that he appellee. 2,500 dosage units of LSD. posses- charged with FAGG, initially Follett was McMILLIAN Before 10 in excess of to distribute HEANEY, with intent sion Senior Judges, and Circuit 21 U.S.C. of LSD violation grams of Judge. Circuit (b)(l)(A)(v), conspiracy to 841(a)(1), §§ McMILLIAN, Judge. Circuit of 21 U.S.C. LSD violation distribute negotiations, Following plea a final appeals from Matthew Follett posses- charged information for was District in the Court1 entered 2,500 dosage intent distribute finding him sion with of Iowa District the Southern 21 of U.S.C. in violation posses- units of LSD plea, guilty of following a guilty, entered a 841(a)(1),(b)(l)(B)(v). Follett 2,500 dosage to distribute §§ intent sion with stipulated agreement plea guilty plea. U.S.C. of 21 in violation units of LSD includ- objection to that, subject Follett’s court (b)(l)(B)(v). The district 841(a)(1), §§ paper to deter- weight of the carrier ing imprison- months to 84 sentenced drug in- quantity of the release, $20,000 the total mine ment, supervised years 4 of 1 volved, possessed excess assessment, that Follett plus the special fine, a $50 Wolle, United Iowa. R. Charles 1. The Honorable Judge District for the Southern District States containing argues sentencing Follett next that the
gram of a mixture or substance reasonably guidelines are unconstitutional on LSD, fore- several that he could have grounds. upheld This court has grams 7 to 9.9 sen- quantity total seen a tencing against guidelines challenges on LSD, accepted responsibili- that he had ground each Follett raises. See United sentencing hearing, Follett At ty. *3 Barnerd, 841, (8th v. 887 F.2d 842 States establishing that he has presented evidence Cir.1989) curiam) (per (guidelines do not problems. history psychological a unconstitutionally right limit to defendant’s that the district court found base The evidence); Lane, present United States v. level, quantity of upon the offense based curiam) 56, (8th Cir.1989)(per 883 F.2d 57 offense, includ- in the which LSD involved (guidelines unconstitutionally not mechani- 30, weight paper, the carrier was ed the cal); Nunley, 873 F.2d United States v. 2D1.1(a)(3), and pursuant to Guidelines § (8th (no 182, Cir.1989) 186 constitutional acceptance of points 2 subtracted then non-capi- right to individualized sentence The court refused a responsibility. district cases). tal participant sta- point for minor 2 reduction Finally, argues that the dis 3B1.2, Follett tus, and refused to de- Guidelines § not have included the trict court should the of diminished part on basis downward determining weight paper of the carrier The 5K2.13. capacity, mental Guidelines § argument quantity of LSD. This was sentencing range at an guideline applicable Bishop, rejected United States v. 894 and criminal level of 28 adjusted offense 981, (8th Cir.1990) (weight of F.2d 985-86 months. The history category I is 78-97 medium should be included distribution Follett to 84 sentenced district court calculation). weight years supervised 4 imprisonment, months fine, release, $20,000 special a $50 a district Accordingly, assessment, of incarceration plus the costs court is affirmed. fol- appeal This supervised release. lowed. HEANEY, Judge, Senior Circuit dissenting. argues first the district Follett the dis- I remand this matter to would refusing depart downward erred in court resentencing because the trict court for problems psychological of his on the basis imposed is at once too severe sentence capacity. The dis mental and diminished requires it severe because too lenient: too is refusal to downward trict court’s for at least 74 to be confined appeal. States v. reviewable on United not inordinately long sentence months1—an (8th Evidente, Cir. 894 F.2d 1004 offender—and too 19-year-old a first 1990). suggests per- he it that be lenient because that time a minimum mitted to serve argues the district Follett next mini- Unfortunately, security institution. a failing to find that he was court erred in security institutions have neither mum pursuant to Guidelines participant minor necessary to the facilities personnel nor point to a 2 re entitled 3B1.2 and thus individuals, Follett, like deal with The district offense level. duction in the problems. severe mental not a minor finding that Follett was court’s sub- of the record that was subject to On the basis finding of fact participant is a sentencing hearing, Follett at the clearly erroneous stan mitted review under Ellis, a severe mental disorder— 890 suffers “from See, e.g., United States dard. depression, curiam). Cir.1989) being psychosis major (8th (per close 1041 F.2d — disorder, 296.3, personality with a mixed supports the district adequately The record narcissistic, 301.89, passive aggres- not minor finding that Follett was court’s sive, record The finding impulsive features.” court’s participant. The district that Follett has abused further indicates clearly not erroneous. forty years. five and have been between comparable sentence would A pre-Guidelines revealed testing further Psychological 12 and age of drugs since alcohol inferior, humiliated self-image was his im- undergo treatment has refused revengeful. felt and he in and has He been his condition. prove his life. throughout psychotherapy out of by the retained psychiatrist 5-25-82, testing on Psycho-educational family states: by several an evaluation which re- examination status mental His officials, indicated also school under- in his superficiality vealed distraeta- anxious, impulsive, displayed were There insights. standing and throughout ble, behavior hyperactive ability to cal- in his deficiencies cognitive He was testing session. interview in his knowledge, fund *4 culate, in his hy- being a classical as clearly described I.Q. memory. His his inor orientation medication needed person who peractive this average from above a bit appeared Ritalin.... prescribed indeed and insights no showed He exam. clinical as im- then even back evaluated He was any con- of nature into immature, whatsoever emotionally socially, pulsive over-compensating
flicts .... to be appeared and acting at depression emo- of superficial feelings for only maintains He ... situations, and blissful. ease people, interests tional Thus family. see his we with events, background, even Referring to this and chaotic, re- against out for alcohol who reached himself individual protects he an mind. to anes- occasion, state of psychotic street on and gressive and could sur- he that his brain so thetize extremely difficult has been ... [I]t _ of function- level miserable His vive therapeutic in a himself to invest him for socially and academically and ing both or individual group init relationship, be substan- parents his with for that matter be, at the to simply appears He therapy. of the time At the notions. these tiates of with- least, incapable at time present opin- carefully considered my it is crime deeper a take at and give standing the a severe suffering from he was ion that he whom individuals with level emotion psycho- to being close mental disorder— and sus- mistrust regards with basically 296.3, a with depression, major sis— pres- by their terrified feels picion and 301.89, disorder, with personality mixed to “a friend to appears be] .... [He ence and im- aggressive, narcissistic, passive no- with friend really a everyone” but features. pulsive super- therefore Relationships are body. by recom- concluded a commitment. psychiatrist The make cannot He ficial. to “a subjected be mending that suffi- with program mandatory treatment under- intellectually he can him to allow medication Although psychotropic cient his impulses primitive nature regressed, his somewhat contain stand to is there emo- level a corrective emotional to achieve enough at an long problems, do emo- insights can at an he present nothing experience at with tional almost in a function level, to therefore it. tional about a ” Such manner. adult reasonable more years.... measured be should program Memo- Northwestern medical testi- entered presented government ... [H]e poor because hearing. in 1986 sentencing Hospital rial mony at self-in- impulsive performance school the dis- respect for great I While slashing a tendon jurious behavior— that the Sen- believe court, I do not trict several out punched when his wrist substi- judge permit tencing Guidelines arguments after home in his windows condition to mental as its tute friend.... girl his father his a basis in absent experts, medical doing. so
the record matter and remand the therefore I would fully PITTMAN, to consider the district court Appellant,
instruct Edwin O. disorders, permit medical Follett’s testimony that present any government to GAINES, Powers, Vigi May Mike Connie fit, the basis of to resentence on it sees ton, Johnny Robertson, Dyer, Den- Carl full record. Robertson, Edwards, Henry Dennis nis prison authorities clear that It Oliver, Appellees. to take medication require Follett cannot No. 89-1498. danger constitutes unless that refusal in the environment others himself or Appeals, Court of United States Washington v. he is confined. See which Eighth Circuit. — -, 110 S.Ct. Harper, U.S. 16, 1990. Submitted Jan. can, (1990). 1039-40, 108 They L.Ed.2d 178 4, 1990. Decided June however, facility psy- where place him a counselling are treatment Rehearing Rehearing chiatric En Banc opportunity permitting July available Denied advantage of medical treatment to take *5 socie- ability to function within
improve his
ty. course, to a
I, objection supervision af- of controlled
lengthy period released, upon his conditioned
ter use of alcohol
refraining from the continuing medically recom- psychiatric treatment. program of
mended recognize the limitations
Finally, I us, dis- place on all of but
the Guidelines obligation their courts must exercise
trict the Guidelines when from departure. such a warrant
circumstances
Otherwise, completely mech- have a we will not ac- sentencing process that will
anized goals established
complish any of the adopting the Guidelines
Congress injustice acquiescence
substitute blind Here, depar- justice. discretion and society and the interests of
ture will serve im- the sentence than
the defendant better
posed.