United States v. Damon Rae Prestemon

929 F.2d 1275, 1991 WL 45111
CourtCourt of Appeals for the Eighth Circuit
DecidedMay 17, 1991
Docket89-5543
StatusPublished
Cited by20 cases

This text of 929 F.2d 1275 (United States v. Damon Rae Prestemon) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth 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. Damon Rae Prestemon, 929 F.2d 1275, 1991 WL 45111 (8th Cir. 1991).

Opinions

McMILLIAN, Circuit Judge.

The United States appeals from a final judgment entered in the District Court for the District of Minnesota finding Damon [1276]*1276Rae Prestemon guilty, pursuant to a plea agreement, of armed bank robbery in violation of 18 U.S.C. § 2113(a), (d). The district court sentenced appellee under the Sentencing Guidelines to 24 months imprisonment, 5 years supervised release, and a $50.00 special assessment. This appeal involves sentencing issues only. See 18 U.S.C. § 3742(b)(3). For reversal the government argues the district court abused its discretion in granting appellee a downward departure from the applicable guideline sentencing range on the basis of appellee’s race and family situation, specifically the fact that appellee was a bi-racial adopted child. For the reasons discussed below, we affirm the conviction, vacate the sentence and remand the case to the district court for resentencing.

The underlying facts are not disputed. On May 30, 1989, appellee robbed the Princeton State Bank in Pease, Minnesota. He brandished what was later determined to be a BB gun and told the bank teller that “I have no qualms about shooting you.” Appellee fled in a car and was arrested a short time later by a state highway patrol officer. The money (about $9,500), the clothes worn by the robber and the gun were found in the car. Appellee was indicted and charged with one count of armed bank robbery in violation of 18 U.S.C. § 2113(a), (d). He agreed to plead guilty. As part of the plea agreement, the parties stipulated that appellee would receive a two-point reduction for acceptance of responsibility, pursuant to Guidelines § 3E1.1, because he confessed and cooperated with the authorities in the investigation. According to the presentence investigation report, appellee’s total offense level was 20, his criminal history category was I because he had no prior criminal history, and the applicable guideline sentencing range was 33-41 months.

The district court granted appellee a downward departure and sentenced him to only 24 months imprisonment. The district court explained that its grant of a downward departure was because of appellee’s adoptive background. Appellee is bi-racial; he was adopted by a white couple when he was three months old. At the time of the adoption neither the adoption agency nor his adoptive parents realized that appellee was bi-racial. As noted by the district court, appellee was only 21 years old at the time of the offense and had been a honors student in high school and had successfully completed one year of vocational training. The district court also based its grant of a downward departure in the present case on the disparity between the guideline sentencing range applicable to appellee and the lower guideline sentencing range applicable to the defendant in a bank fraud case also pending before the court.

The government argues forcefully that the district court abused its discretion in granting a downward departure on the basis of appellee’s race and family situation. The government argues that under the sentencing guidelines neither race nor family situation are ordinarily relevant in determining whether a sentence should be outside the guidelines. See Guidelines §§ 5H1.6 (family ties and responsibilities), 5H1.10 (race, sex, national origin, creed, religion, socio-economic status). Appellee argues that the district court did not rely upon race but instead relied upon his mental and emotional condition. See Guidelines § 5H1.3. There is some evidence in the record that indicates that bi-racial children, especially bi-racial adopted children, often experience severe identity crises and that adopted children are in trouble with the authorities more often than children who have not been adopted.

Under the sentencing guidelines district courts must impose a sentence within the applicable guideline sentencing range unless “the court finds ... 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 [different] sentence.” 18 U.S.C. § 3553(b). “The guidelines materials clearly indicate that departures [from the applicable guideline sentencing range] ‘were intended to be quite rare.’ ” United States v. Neil, 903 F.2d 564, 565 (8th Cir.1990), citing United States v. Justice, 877 F.2d 664, 666 (8th Cir.), cert. denied, — U.S. —, 110 S.Ct. [1277]*1277375, 107 L.Ed.2d 360 (1989). This circuit follows a three-step test to decide whether a departure from the guidelines is permissible for the reasons stated by the district court. See, e.g., United States v. Lang, 898 F.2d 1378, 1379-80 (8th Cir.1990). We must “determine [, first,] whether the mitigating circumstances the district court relied on are of a kind or degree appropriate to justify departure, [next,] whether these circumstances actually exist in this case, and [finally,] whether the degree of departure is reasonable.” United States v. Big Crow, 898 F.2d 1326, 1331 (8th Cir.1990), citing United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, — U.S. —, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989).

MENTAL AND EMOTIONAL CONDITION

Because the district court did not rely upon appellee’s mental and emotional condition as a reason for departing from the applicable guideline sentencing range, we will not consider those circumstances as a basis for departure. We note, however, contrary to appellee’s argument, that “[m]ental and emotional conditions are not ordinarily relevant in determining whether a sentence should be outside the guidelines.” Guidelines § 5H1.3 (noting that mental and emotional conditions, whether mitigating or aggravating, may be relevant in determining the length and condition of probation or supervised release).

RACE AND FAMILY SITUATION

We hold the district court abused its discretion in sentencing appellee outside the applicable guideline sentencing range because he was a bi-racial adopted child. First, in establishing the Sentencing Guidelines, Congress expressly directed the Sentencing Commission to “assure that the guidelines and policy statements are entirely neutral as to the race, sex, national origin, creed, and socioeconomic status of offenders.” 28 U.S.C. § 994(d). This Congressional directive is clearly set forth in Guidelines § 5H1.10. For this reason, ap-pellee’s race or racial background cannot be a basis for departure. See United States v. Diaz-Villafane, 874 F.2d at 49 n.

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Bluebook (online)
929 F.2d 1275, 1991 WL 45111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-damon-rae-prestemon-ca8-1991.