United States v. B. Roe

976 F.2d 1216, 92 Cal. Daily Op. Serv. 8344, 92 Daily Journal DAR 13708, 1992 U.S. App. LEXIS 24840, 1992 WL 252853
CourtCourt of Appeals for the Ninth Circuit
DecidedOctober 6, 1992
Docket91-30085
StatusPublished
Cited by48 cases

This text of 976 F.2d 1216 (United States v. B. Roe) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. B. Roe, 976 F.2d 1216, 92 Cal. Daily Op. Serv. 8344, 92 Daily Journal DAR 13708, 1992 U.S. App. LEXIS 24840, 1992 WL 252853 (9th Cir. 1992).

Opinion

ORDER

The opinion filed September 18, 1992 is withdrawn.

DAVID R. THOMPSON, Circuit Judge:

B. Roe pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a), and was sentenced under the United States Sentencing Guidelines to 145 months in prison. She appeals her sentence, arguing that the district court erred in refusing to depart downward from her applicable guideline range based on her history of childhood abuse. She also contends the court erred in failing to state its reasons for choosing her sentence within the guideline range. We have jurisdiction under 18 U.S.C. § 3742(a)(2) and 28 U.S.C. § 1291.

DISCUSSION

A. Refusal to Depart

The district court concluded that because the Sentencing Commission considered the effects of childhood abuse in formulating the guidelines, it could depart on that basis only in extraordinary circumstances. See United States v. Boshell, 952 F.2d 1101, 1107 (9th Cir.1991) (if a factor was considered in formulating the guidelines, it may support a departure only in “extraordinary circumstances”). It then determined that although Roe’s history of abuse was shocking, it was not so extraordinary as to warrant a downward departure. We review de novo a district court’s determination that the Sentencing Commission considered a particular circumstance in formulating the guidelines. United States v. Lira-Barraza, 941 F.2d 745, 746 (9th Cir.1991) (en banc). We review for clear error the court’s finding that a particular circumstance was not extraordinary. United States v. Morales, 961 F.2d 1428, 1431 (9th Cir.1992).

The guidelines do not specifically address the issue of childhood abuse. However, they do provide that “[mjental and emotional conditions are not ordinarily relevant in determining whether a sentence should be outside the guidelines.” U.S.S.G. § 5H1.3 (1990). Other circuits have held that section 5H1.3 encompasses the psychological effects of abuse. See United States v. Desormeaux, 952 F.2d 182, 185 (8th Cir.1991) (effects of spousal abuse are emotional conditions under section 5H1.3); United States v. Vela, 927 F.2d 197, 199 (5th Cir.) (effects of childhood abuse are emotional conditions under section 5H1.3), cert. denied, — U.S. -, 112 S.Ct. 214, 116 L.Ed.2d 172 (1991).

In Vela, the defendant contended she was entitled to a downward departure based on her history of incest and abuse. The district court declined to depart on that ground, holding that it could do so under section 5H1.3 only in extraordinary circumstances. The Fifth Circuit affirmed, stating that:

A defendant’s family history of incest or related treatment which causes defendant to incur a mental or emotional condition that affects criminal conduct, may be a ground for departure in extraordinary circumstances. It is clear that the Sentencing Commission, while leaving open the possibility that the circumstances of a defendant’s mental or emotional condition may be so extraordinary that departure from the guidelines is *1218 proper, did not consider these factors relevant in formulating the guidelines.

Id. at 199.

We agree with the Fifth Circuit’s position in Vela. The psychological effects of child abuse manifest themselves in a variety of ways. For example, victims of such abuse frequently experience profound feelings of inadequacy, isolation, confusion, low self-esteem, and guilt. See Chandler, Knowns and Unknowns in Sexual Abuse of Children, in Social Work and Child Sexual Abuse, 51, 61-63 (J. Conte & D. Shore eds. 1982). Each of these effects constitutes either a mental or emotional condition. Because the Sentencing Commission expressly considered the impact of such conditions in formulating section 5H1.3, we hold that the psychological effects of childhood abuse may only be considered as a basis for departure in extraordinary circumstances. See Boshell, 952 F.2d at 1107.

Although the district court correctly concluded that the Sentencing Commission considered the psychological effects of childhood abuse in formulating the guidelines, it clearly erred in finding that the circumstances of Roe’s abusive childhood were not extraordinary. For much of her youth, Roe lived with her drug-addicted mother and her mother’s boyfriend, who was a narcotics dealer. The record indicates the mother’s boyfriend savagely beat Roe, sometimes as often as once a day, with belts, extension cords, and coat hangers. He also routinely raped and sodomized her. When Roe resisted, she was stripped naked and beaten into submission. On at least one occasion, he forced Roe to lay naked on the basement steps while he urinated in her mouth. This abuse continued for several years until, at the age of twelve, Roe ran away from home.

Roe continued to be abused even after she escaped from her mother’s home. Indeed, shortly after she left home, she was taken to Las Vegas by an acquaintance and forced to work as a prostitute. While there, she was brutally beaten by a series of pimps, customers, and boyfriends; she has been the victim of similar episodes of abuse for the past fifteen years.

Several medical experts examined Roe prior to sentencing. Each agreed that her history of abuse was exceptional. One psychologist testified that “it seems to be extreme” and “go[es] above and beyond” the type of abuse normally encountered. Another stated that “[h]er history is on the more severe side. I would say she would fit in the upper spectrum of people I have seen in jail. She is not average.” A third reported that Roe’s abuse was so severe she had become “virtually a mindless puppet.”

Based on these facts, we conclude the district court clearly erred in holding that the tragic circumstances of Roe’s abusive upbringing were not extraordinary. We therefore remand to the district court to exercise its discretion in determining whether the exceptional nature of Roe’s history of abuse warrants a departure from her applicable guideline range. 1

On remand, the district court may also wish to consider whether Roe’s history of abuse and neglect warrants a departure under our recent decision in United States v. Floyd, 945 F.2d 1096 (9th Cir.1991) (affirming a departure based on a defendant’s “youthful lack of guidance”).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Sandoval-Hernandez
275 F. App'x 676 (Ninth Circuit, 2008)
United States v. Tammy Brady
417 F.3d 326 (Second Circuit, 2005)
United States v. Kim Renee Smith
387 F.3d 826 (Ninth Circuit, 2004)
United States v. Monroe
106 F. App'x 604 (Ninth Circuit, 2004)
United States v. Lisa Ann Minutoli
374 F.3d 236 (Third Circuit, 2004)
United States v. Minutoli
Third Circuit, 2004
United States v. Raymond Lee Rice
332 F.3d 538 (Eighth Circuit, 2003)
United States v. Raymond Rice
Eighth Circuit, 2003
United States v. Arocha
64 F. App'x 107 (Ninth Circuit, 2003)
United States v. Barbour
66 F. App'x 327 (Third Circuit, 2003)
United States v. Nowicki
252 F. Supp. 2d 1242 (D. New Mexico, 2003)
United States v. Dewire
271 F.3d 333 (First Circuit, 2001)
United States v. Hollins
17 F. App'x 651 (Ninth Circuit, 2001)
United States v. Armondo R. Walter
256 F.3d 891 (Ninth Circuit, 2001)
United States v. Digilio
13 F. App'x 636 (Ninth Circuit, 2001)
United States v. Jorge Rivera
192 F.3d 81 (Second Circuit, 1999)
United States v. Rivera
192 F.3d 81 (Second Circuit, 1999)
United States v. Delgado
994 F. Supp. 143 (E.D. New York, 1998)
United States v. Ramos-Oseguera
120 F.3d 1028 (Ninth Circuit, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
976 F.2d 1216, 92 Cal. Daily Op. Serv. 8344, 92 Daily Journal DAR 13708, 1992 U.S. App. LEXIS 24840, 1992 WL 252853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-b-roe-ca9-1992.