United States of America, Plaintiff-Appellant-Cross-Appellee v. Brenda Lee Working, Defendant-Appellee-Cross-Appellant

224 F.3d 1093, 2000 Cal. Daily Op. Serv. 7573, 2000 Daily Journal DAR 10051, 2000 U.S. App. LEXIS 22774, 2000 WL 1277052

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 11, 2000
• Docket: 98-3012198-30122
• Status: Published

Opinions

Opinion by Judge SILVERMAN; Dissent by Judge WARDLAW.

SILVERMAN, Circuit Judge:

In Koon v. United States, 518 U.S. 81, 97-98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), the Supreme Court said:

We agree that Congress was concerned about sentencing disparities, but we are just as convinced that Congress did not intend, by establishing limited appellate review, to vest in appellate courts wide-ranging authority over district court sentencing decisions.

A district court’s decision to depart from the Guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.

This important principle of appellate judicial restraint is put to the test in this case. The defendant pled guilty to assault with intent to commit murder and using a firearm in a crime of violence. Finding that the defendant’s behavior was aberrant, the district court granted a twenty-one level downward departure on the assault charge. Given the substantial deference we are required to accord such decisions and the existence of evidence supporting it, we hold that the district court did not abuse its discretion in making a finding of aberrant conduct. On the other hand, because the district court failed to “explain the reasoning for ... the ... degree of the departure in sufficiently specific language to allow appellate review,” United States v. Henderson, 993 F.2d 187, 189 (9th Cir.1993) (emphasis added), we vacate the sentence and remand to the district court for resentenc-ing to be accompanied by an explanation for the degree of the departure it grants.

I.

We start our recitation of the facts with an important premise: Michael Working was the victim of the criminal behavior at issue in this case. A judicial examination of whether the defendant’s behavior was aberrant in no way minimizes the seriousness of the crime or its impact on Mr. Working, or justifies its commission.

Brenda and Michael Working were married on September 8, 1990. Brenda and Michael have two daughters. Michael also has children, including two sons, Mitch and Micha, from a previous marriage. Evidence in the record indicates that Brenda and Michael’s marriage was volatile from the beginning, as was Michael’s relationship with his sons. In 1993, Michael kicked seventeen-year-old Micha out of the family home.

The couple’s marital difficulties came to a head in 1997 when Michael discovered Brenda sleeping next to his teenage son Mitch on a make-shift bed. Brenda stated that she, Mitch, and the girls merely fell asleep on a make-shift bed in the living room while watching television. In any event, according to Brenda, Michael threatened to use that incident to obtain legal custody of the girls by falsely and scurrilously alleging that she had engaged in sexual misconduct with her minor stepson. She also claims that he threatened to fabricate details in order to gain custody. Shortly thereafter, Michael moved out of the house and into a cottage located on the property. He filed for divorce a few months later and did, indeed, petition for sole custody of the girls, alleging that Brenda and his minor son were engaged in an improper sexual relationship. A show cause hearing for temporary custody was scheduled for August 7,1997.

On July 23, 1997, Brenda purchased a .38-ealiber handgun from a pawn shop. She picked up the gun a week later, on August 1, 1997, six days before the show cause hearing. At approximately 10:45 p.m that evening, Brenda called Michael and told him that her mini-van had broken down on a road that runs through the military base of Fort Lewis, Washington. She asked him to come and pick up their two daughters.

Michael arrived at the Fort Lewis road at around 11:00 p.m. While Michael was still seated in his Ford Bronco, Brenda approached the vehicle, pulled out the handgun and began shooting at Michael. Although Michael tried to duck into the passenger seat, he was hit in his left arm and shoulder. After Brenda emptied the handgun and stopped shooting, Michael was able to re-start the Bronco, and he drove it into some bushes where he climbed out.

Brenda reloaded the gun and followed Michael. Michael started to run, but Brenda shot him again, wounding him in the back. Michael then turned and rushed Brenda. As the two struggled, Brenda hit Michael in the head with the gun several times. Michael struck Brenda in the face twice and then fled into the near-by bushes to hide. Brenda tried to find Michael by driving her minivan back and forth along the road so that its headlights illuminated the bushes. She looked for Michael for over an hour but, failing to find him, returned to her home in the early morning of August 2.

After she returned home, Brenda attempted to wash bloodstains from the hood of her car. She also burned her soiled clothing and hid her broken eye glasses. She then called 911 to report her husband for domestic violence. Brenda told police that she and Michael had argued at the house and that he had struck her; she denied seeing Michael after he left the residence. However, once the police confronted her with the fact that they had found her husband alive, she recanted her story. She admitted to owning a .38-cali-ber handgun, which she handed over to police. She also consented to a search of her residence and the minivan, where police located traces of blood.

Brenda pled guilty to assault with intent to commit first degree murder, in violation of 18 U.S.C. § 113(a)(1), and to use of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (since amended). With respect to the assault offense, Brenda argued for a downward departure from the relevant Sentencing Guidelines for aberrant behavior. She also argued that the district court had the authority to grant a departure from the statutory minimum sentence of five years for the firearm offense.

At sentencing, Brenda presented evidence in support of her request for a departure for aberrant conduct. First was a psychiatric evaluation performed by Sean M. Killoran, M.D. It concluded that Brenda was suffering from severe depression at the time of the shooting. Dr. Killoran wrote:

It can be stated with a reasonable degree of medical certainty that the defendant suffered from a major depressive disorder at the time of the charged offense and that her ability to recall and reconstruct the events in her mind had been impaired by the concurrent diagnosis of an acute dissociative episode. ... The severity of her depressive symptoms at the time of the offense and her sense of hopelessness coupled with the desperate quality of her situation markedly impaired her usual judgment and decision making.¹

Dr. Killoran also reported that Brenda was under “extreme pressure” at the time of the shootings, which was related in part to her concern that she might lose custody of her two daughters due to Michael’s accusations of sexual misconduct. Dr. Kil-loran also noted that “[h]er past behavioral history reflects a life-long adherence to conventional values, a law-abiding lifestyle, and a lack of previous aggressive behavior.” In light of Brenda’s behavioral history, Dr. Killoran also opined that the shooting was “markedly out of character for the defendant in terms of her behavioral background, and there is no psychiatric evidence that it was consciously planned.”

Second, the district court had before it several letters written by friends and family on Brenda’s behalf. Of particular significance to the district court were letters written by Michael’s two sons, Micha and Mitch. Micha’s letter stated in part:

I am writing this letter on behalf of Brenda in hopes that you will show her leniency. I understand that Brenda shot my Dad, but if you only knew him like any one of us who has lived with him then you might begin to understand how he pushes and pushes a person until they completely go over the edge. I know, because I have been driven there more times than I can count by my Dad.

[The arguments with my Dad] all follow the same basic outline. Any little argument that may come up and Dad cannot stop. Even when the other person tries to walk away, even when that person starts to cry. My Dad will not stop until he has completely broken his victim down. He will keep pushing and twisting words until a small disagreement has turned into a major altercation. The other person is left reeling and so confused they don’t know which way is up.²

Michael’s other son, Mitch, wrote to the judge:

Brenda Working has been my mother since I was nine years old. She has been there for me every step of the way. She is not a stepmother to me, she is a mom, a friend, and a teacher.... She is not a violent person, she is a talker and likes to work things out. I feel if it wasn’t for her and her family I would not be the strong person and as successful as I am today.

She is a believer in right and wrong and I still believe that. She is not a person that belongs behind bars but a person that needs a little help from a bad person that knows how to turn minds around if you let him. *My two little sisters and me need her. My sisters need their mom to live a life like little girls should. Brenda would stay up nights to be with the girls when they were sick, because she loves them more than the world. By the time you get this letter she has already served 3 months in jail and a way [sic] from her family.

I feel that instead of throwing the key away and sending her off she should get probation and your release for there are two very special girls that really need her. I will always be their [sic] for this woman know [sic] matter what, because she brought me up instead of dad.

Next, the district court had before it Brenda’s testimony at sentencing. She denied physical abuse but claimed to be a victim of verbal and emotional abuse extending over a period of years. She testified in part:

[W]hat he does is he yells at you and towers over you and threatens you to take the kids away and he pushes and he shoves. And just puts the fear in you. And it got to the point it was almost daily there through July.

Brenda testified that at the time of the shooting: “I became somebody I don’t know because ... I just wanted him [Michael] to shut up and stop screaming and threatening and hurting [us].” She also expressed remorse for her actions, stating that she was “truly devastated by this and I’m sorry ... for what I’ve done and I’m sorry to Mike.”

Finally, the district court had before it the Presentence Report, which indicated that Brenda lacked any criminal record whatsoever.

After considering all of this evidence, the district court concluded that Brenda’s behavior was aberrant. In so finding, the court discussed, on the record and in open court, each of the seven factors relevant to aberrant behavior enumerated by this court in United States v. Colace, 126 F.3d 1229, 1231 n. 2 (9th Cir.1997). Specifically, the court found that the shooting was singular in nature, and that Brenda had no prior criminal record. The court also accepted Dr. Killoran’s opinion that Brenda was suffering from “significant depression” at the time of the offense. Next, the court found that Brenda was operating under extreme pressures resulting from Michael’s accusation of sexual misconduct and the potential loss of custody of the children. The court also took account of the numerous letters from family and friends in support of Brenda, especially the letters from Michael’s sons. Finally, the court concluded:

Here, there’s no question in this Court’s mind that what happened was the pressure of losing her two daughters.

The evidence seems to show that the pressure which she was under is when the victim in the case accused her of having sexual relations with one of his minor sons. I think that set off this whole case.

Under the relevant sentencing guidelines, Brenda’s total adjusted offense level for the assault was calculated to be twenty-nine. With a Criminal History Category I, the sentencing range was 87 to 108 months. See 18 U.S.C. § 113(a)(1); U.S.S.G. 2A2.1(a)(l) and (b)(1)(A); 3El.l(a) and (b)(2). Finding that Brenda’s conduct was aberrant and warranted departure, the court departed downward twenty-one levels to level eight, which appears to represent the minimum departure necessary to bring the applicable sentencing range to zero-to-six months. See U.S.S.G. Ch. 5 Pt. A (Sentencing Table). However, the court offered no explanation for why it departed to the degree that it did.

The court sentenced the defendant to one day in prison for assault. As for the firearms charge, the court concluded that it lacked the authority to depart from the statutory minimum sentence, and accordingly sentenced Brenda to the five-year minimum term in prison. As required by 18 U.S.C. § 924, the court ordered this five-year sentence to run consecutively to the one-day sentence. In other words, Brenda’s prison sentence totaled five years and one day. The district court further noted that it would have departed from the five-year mandatory minimum if it had had the authority to do so.

The government appealed the sentence imposed by the district court. Although it conceded that aberrant behavior can justify a downward departure, the government maintained that the district court erred in finding Brenda’s behavior aberrant in this case. The government also argued that the court abused its discretion with regard to the extent of departure. Brenda cross-appealed, contending that the district court had the discretion to depart downward from the firearm offense’s mandatory minimum five-year sentence. A panel of this court affirmed the district court’s sentence. See United States v. Working, 175 F.3d 1150 (9th Cir.1999). We granted review en banc.

II.

The Supreme Court has significantly curtailed appellate review of departure decisions. In Koon, the Court adopted the “unitary abuse-of-discretion standard” described in Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 403, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). See Koon, 518 U.S. at 99, 116 S.Ct. 2035. Under this standard, the district court is entitled to deference on most departure issues, including “[wjhether a given factor is present to a degree not adequately considered by the Commission, or whether a discouraged factor nonetheless justifies departure because it is present in some unusual or exceptional way....” Id. at 98, 116 S.Ct. 2035. As the Supreme Court explained, district courts are accorded such deference because they “have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines cases than appellate courts do.” Id.

The Sentencing Guidelines allow for a downward departure in an atypical case where the language of a guideline is applicable but where the defendant’s conduct differs significantly from the norm or the “heartland” of cases addressed by the guideline. See U.S.S.G. Ch. 1, Pt. A, 4(b). A departure is warranted only if “ ‘there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.’ ” U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)).

As the government acknowledges, a finding of aberrant conduct can serve as a justification for a downward departure from the relevant guidelines. See U.S.S.G. Ch. 1, Pt. A, 4(b); Colace, 126 F.3d at 1231; United States v. Green, 105 F.3d 1321, 1322 (9th Cir.1997); United States v. Fairless, 975 F.2d 664, 667 (9th Cir.1992). Aberrant conduct is conduct that represents a “short-lived departure from an otherwise law-abiding life.” Colace, 126 F.3d at 1231. In evaluating whether a defendant’s behavior falls under the “spectrum of aberrant behavior,” the district court may consider “a convergence of factors.” Fairless, 975 F.2d at 667. This includes: Colace, 126 F.3d at 1231 n. 2 (9th Cir.1997). Here, the district court explicitly-considered all of these factors; furthermore, there was evidence in the record to support its findings concerning them.

(1) the singular nature of the criminal act, (2) spontaneity and lack of planning, (3) the defendant’s criminal record, (4) psychological disorders the defendant was suffering from, (5) extreme pressures under which the defendant was operating, ... (6) letters from friends and family expressing shock at the defendant’s behavior, and (7) the defendant’s motivations for committing the crime.

First, there was evidence from which the district court could find that the shooting was a singular event. This was not a crime spree. Nor do these facts involve a continuous and well-coordinated crime that took place over a long period of time. See, e.g., Colace, 126 F.3d at 1230 (defendant robbed at least twelve banks in a two-month period); Green, 105 F.3d. at 1322 (defendant took part in a well-coordinated operation to manufacture and cultivate over four thousand marijuana plants for no reason other than financial gain). Moreover, Brenda had no prior criminal record, which is another of the Colace factors.

The evidence also supports the district court’s determination that the defendant was suffering from significant depression and psychological pressures at the time of the offense. Brenda had been treated for depression prior to the shooting. In addition, the psychiatric evaluation conducted by Dr. Killoran concluded that Brenda was suffering from a “major depressive disorder” at the time of the offense. This conclusion was based on Dr. Killoraris review of the defendant’s medical records, journal entries prepared by the defendant from December 1996 to July 1997, and on a series of diagnostic interviews he had with the defendant. Although a second psychiatric examination of the defendant, made pursuant to a court order, determined that Brenda “did not suffer from a mental disease or defect that made her unable to form the necessary intent to commit the act,” this finding is not inconsistent with Dr. Killoraris findings that the defendant suffered from a significant depression. In any event, to the extent that there was a conflict in the evidence, it is within the exclusive province of the district court to resolve evidentiary inconsistencies. See Inwood Lab. v. Ives Lab., 456 U.S. 844, 856-58, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982) (stating that the weight to be assigned to evidence is strictly within the province of the trier of fact, unless the findings are clearly erroneous).

Similarly, the evidence in the record supports the district court’s finding that Brenda was operating under severe psychological pressures when she committed the offense. Brenda testified about her fear that Michael would gain custody of their daughters. This testimony was corroborated by Dr. Killoraris evaluation of Brenda, which stated that she was under “extreme pressure” at the time of the shooting.

It was also proper for the district court to consider letters from Michael’s sons, Micha and Mitch, as well as from other friends and family. These letters provided additional support for the finding that the shooting represented an isolated incident, and one that was out of character for the defendant. Moreover, the letters highlighted the defendant’s strong familial ties with her own, and Michael’s, children. This has been held to be an appropriate consideration. See United States v. Pena, 930 F.2d 1486, 1494-95 (10th Cir.1991).

Finally, the district court appropriately considered the factor of Brenda’s motivations for committing the crime, namely, the protection of her family.

Thus, the district court did not err in concluding that six of the Colace factors weigh squarely in Brenda’s favor. Again, it must be remembered that none of these factors, singularly or in combination, justifies or excuses Brenda’s conduct in any way. However, as Colace teaches, they do bear upon whether she acted out of character on the day in question.

The government seriously disputes only one factor, and argues that the shooting cannot be considered aberrant as a matter of law because it was not “spontaneous.” While our past decisions may have “to some extent relied on the concept of ‘singularity or spontaneity’ ” in making the aberrant behavior determination, Green, 105 F.3d at 1323 (quoting United States v. Lam, 20 F.3d 999, 1004 (9th Cir.1994)), we have never held that any single factor was dispositive. See id. at 1323. In fact, our case law is consistent in its recognition that the totality of the circumstances are to be reviewed when making findings of aberrancy. See Colace, 126 F.3d at 1231 (determination to be made based on “convergence of factors” and the “totality of the circumstances”); Lam, 20 F.3d at 1003 (analyzing “combination of factors” to find that defendants’ conduct was aberrant); Fairless, 975 F.2d at 667 (reviewing court must consider “totality of circumstances”); United States v. Takai 941 F.2d 738, 743 (9th Cir.1991) (same).

Aberrancy and spontaneity can be related but they are two different things. A mercy killing, for example, may represent a single “departure from an otherwise law abiding life” yet still be the result of thought and planning. By the same token, the actions of an irrational hothead.who suddenly punches someone in the nose might be spontaneous, but not aberrant if he has done it before. As the Second Circuit aptly observed, aberrant behavior is best assessed “ ‘in the context of the defendant’s day-to-day life’ rather than solely ‘with reference to the particular crime committed.’ ” United States v. Martinez, 207 F.3d 133, 137 (2d Cir.2000) (quoting Zecevic v. United States Parole Comm’n, 163 F.3d 731, 735 (2d Cir.1998)); see also United States v. Garcia, 182 F.3d 1165, 1176 (10th Cir.1999) (fact that defendant’s crime was “carefully planned” did not preclude finding of aberrant behavior; the correct focus is “ ‘not on the number of discrete acts undertaken by the defendant’ ” but rather on the aberrational character of the conduct) (quoting United States v. Jones, 158 F.3d 492, 500 (10th Cir.1998)). Moreover, to require that aberrant conduct be spontaneous and thoughtless would mean that it could never be used as a basis for departure in any case requiring proof of intent or evidence of forethought, and we know that this is not so. See, e.g., Fairless, 975 F.2d at 667 (upholding aberrant behavior departure in an armed robbery case); Takai 941 F.2d at 743 (affirming decision to depart for aberrant behavior in a bribery and conspiracy case); Pena, 930 F.2d at 1494 (affirming aberrant behavior departure in drug smuggling case).

We are respectful of the substantial deference appellate courts are required to accord the district court’s departure decisions. As the Supreme Court said in Solem v. Helm, 463 U.S. 277, 290 n. 16, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), “[I]t is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence.” In Pena, the Tenth Circuit put it this way:

In deciding whether the district court’s reasoning comports with these statutory considerations, it is necessary to “leave considerable discretion in the hands of the sentencing judge.” The issue is not whether we would have departed to the exact extent that the sentencing judge did, but whether the judge’s [explanation] reflects a reasoned, persuasive review of the statutory considerations.

Pena, 930 F.2d at 1496 (quoting United States v. White, 893 F.2d 276, 278 (10th Cir.1990)).

On the other hand, the cases in which we have not allowed a downward departure for aberrant conduct involved facts indisputably showing that the conduct was not aberrant at all. In Colace, for example, we overturned a downward departure for aberrant behavior where the defendant committed not one, but at least twelve separate bank robberies over a period of not one day, but at least two months. Colace, 126 F.3d at 1231-32. Similarly, in Green, we stated that the record did not support a finding of aberrant behavior because the defendant was involved in a well-planned marijuana-for-profit operation that extended over a period of at least a few months. Green, 105 F.3d at 1323.

Other circuit court decisions in which departures for aberrant behavior have been disallowed also involved evidentiary records that clearly did not support a finding that the defendant was acting out of character. In Martinez, 207 F.3d at 134, the Second Circuit overturned the district court’s downward departure where the defendant had participated on at least three occasions in a cocaine importation scheme spanning some thirteen months. There was no evidence that the defendant suffered from any psychological or other pressures, and the only motivation for the crime appeared to be economic. See id. at 138. In Zecevic, 163 F.3d at 736, the Second Circuit affirmed the decision not to depart downward where the defendant initiated and carried out an elaborate plan to smuggle drugs into Sweden over the course of several months, and where the defendant presented no evidence to suggest that he was suffering from any psychological disorder or extreme pressures. Similarly, in United States v. Bradstreet, 136 F.3d 46, 66 (1st Cir.1998), the First Circuit concluded that the district court had exceeded its discretion in departing downward where the defendant was convicted of criminal dishonesty and had testified dishonestly at his own trial. The court stated that “an aberrant behavior departure is not warranted unless the conduct at issue is both a marked departure from the past and is unlikely to recur.” Id.

In summary, we hold that the district court did not abuse its discretion in finding that Brenda’s behavior was aberrant. The district court based its finding on an evaluation of the defendant’s mental state at the time of the incident, emotional and psychological pressures she was suffering under at the time, letters of support from family and friends, her lack of criminal history, and the singularity of the event. Even if other judges might have reached a different conclusion,

[i]f the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.

Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

III.

Although we hold that the district court did not abuse its discretion in finding that Brenda’s conduct was aberrant, that is not the end of our inquiry. We also must determine whether the extent of the district court’s downward departure in this case was so great as to be unreasonable. See Henderson, 993 F.2d at 188 (stating that after reviewing court determines that sentence is not in violation of the law or the result of the incorrect application of the guidelines, the court must then determine whether the departure “was unreasonably high or low from the relevant guideline.”) (citing Williams v. United States, 503 U.S. 193, 202, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992)).

A district court is required to articulate the reasons for the extent of the departure “in sufficiently specific language to allow appellate review.” Henderson, 993 F.2d at 189. On appeal we may not search the record for the possible reasons for departure; instead, we must rely solely on the reasons expressed by the court below. See id.

The requirement that the district court explain its reasons for assigning a departure is not inconsistent with the abuse of discretion standard promulgated by Koon. As the Seventh Circuit has noted, the requirement is “indispensable to furthering the ‘fundamental goal of the Sentencing Reform Act, which is to place federal sentencing on an objective, uniform, and rational (or at least articulable, nonintuitive) basis.’ ” United States v. Horton, 98 F.3d 313, 319 (7th Cir.1996) (quoting United States v. Pullen, 89 F.3d 368, 371 (7th Cir.1996)).

In this case, the district court offered virtually no explanation for how it arrived at its decision to depart downward by twenty-one ■ levels. Why twenty-one? Why not eleven or fifteen? The court merely stated that it had “much difficulty in sentencing this defendant to time in the penitentiary with the resulting deprivation of her children because of her aberrant behavior.” This is not enough. To review the district court’s decision with the deference it deserves, we need to know the reasoning behind the degree of departure. We cannot speculate.³ Therefore, we must remand the case to the district court for resentencing and for an explanation of the reasons for the degree of the departure it allows.⁴

IV.

In her cross-appeal, Brenda maintains that the district court had discretion to depart downward on the mandatory minimum five-year sentence for the firearm offense. As did the panel before us, we reject Brenda’s argument. See Working, 175 F.3d at 1155. As a general rule, district courts cannot impose a sentence below a statutory mandatory minimum. See United States v. Riewe, 165 F.3d 727, 728-29 (9th Cir.1999); United States v. Castaneda, 94 F.3d 592, 594 (9th Cir.1996). An exception to this rule exists if the government moves, pursuant to U.S.S.G. § 5K1.1, for a downward departure based on the defendant’s “substantial assistance” to the authorities. In this case, Brenda provided no such assistance to the government, and thus the district court had no authority to depart from the mandatory ■ minimum five-year sentence imposed under 18 U.S.C. § 924.

V.

For the reasons stated herein, the defendant’s sentence for assault with intent to commit murder is VACATED and the matter REMANDED for resentencing. The defendant’s sentence for using a firearm in relation to a crime of violence is AFFIRMED.

1 . The report also indicated that this was not Brenda’s first experience with depression. In late 1996, Brenda sought counseling for depression and feelings of "helplessness.” She consulted her family physician, who prescribed the antidepressant Paxil. She also entered into short-term psychotherapy. Although the medication and the counseling appeared to offer the defendant some initial relief, her separation from Michael and what she reported as his increasingly abusive behavior prompted a return of symptoms including "free floating anxiety, a sense of intimidation, marked insomnia and impaired self-esteem.”

2 . At the time of sentencing, Micha had petitioned for custody of Brenda and Michael's two daughters.

3 . Because the district court failed to specify the reasoning behind the extent of the departure here, we are unable to discern whether the court took into account the five-year mandatory sentence Brenda was to serve for the firearm offense. We express no opinion on the issue of whether a sentencing court may consider a defendant’s entire sentence — including any related statutory minimum sentence — when deciding how far to depart from the relevant guidelines. Compare United States v. Webster, 54 F.3d 1, 4 (1st Cir.1995) (“We conclude that in departing from a guideline sentence the district court is free to exercise its own judgment as to the pertinence, if any, of a related mandatory consecutive sentence.”), with United States v. Caldwell, 985 F.2d 763, 765-66 (5th Cir.1993) (holding that a mandatory minimum sentence under § 924(c) does not, by itself, provide a valid basis for downward departure).

4 . We reject the government’s request that this case be reassigned to another judge for resen-tencing. See United States v. Huckins, 53 F.3d 276, 280 (9th Cir.1995).