United States v. Dorothy Menyweather

431 F.3d 692, 2005 U.S. App. LEXIS 27760, 2005 WL 3440800
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 16, 2005
Docket03-50496
StatusPublished
Cited by45 cases

This text of 431 F.3d 692 (United States v. Dorothy Menyweather) 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. Dorothy Menyweather, 431 F.3d 692, 2005 U.S. App. LEXIS 27760, 2005 WL 3440800 (9th Cir. 2005).

Opinions

GRABER, Circuit Judge:

For the third time, the United States appeals the sentence imposed upon Defendant Dorothy Menyweather’s conviction by guilty plea to one count of mail fraud, in violation of 18 U.S.C. §§ 1341 and 1346. The government objects to the district [694]*694court’s eight-level downward departure for mental and emotional condition, diminished capacity, and extraordinary family circumstances, a departure that the district court has reimposed twice after remands from this court. United States v. Meny-weather, No. 01-50438, 36 Fed.Appx. 262 (9th Cir. May 16, 2002) (unpublished disposition) (“Menyweatker I ”); United States v. Menyweather, 69 Fed.Appx. 874 (9th Cir.2003) (unpublished disposition) (“Men-yweather II ”).

While this third appeal was pending, the Supreme Court decided United, States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), altering significantly the legal context in which we must decide this appeal. Before Booker, we reviewed de novo whether a departure was proper under the constraints set forth in the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). See 18 U.S.C. § 3742(e). Now, instead, we review the district court’s sentence for “reasonableness.” Booker, 125 S.Ct. at 765-66. Also, whereas the district court was previously required to sentence according to the Guidelines, the Guidelines are now “effectively advisory.” Id. at 757.

The district court, of course, did not have the benefit of Booker and sentenced Defendant under the assumption that the Guidelines were mandatory. We conclude that the district court did not abuse its discretion by downwardly departing from the Guidelines. Moreover, even if the district court strayed from the departure authority available under the Guidelines, any error was harmless in view of the sentencing factors listed in 18 U.S.C. § 3553(a) (which the district court can now consider after Booker) and in view of our belief that the court would impose the same sentence again, having steadfastly maintained its position in the face of two opportunities to revise its sentence. Finally, we conclude that the resulting sentence was reasonable, and we affirm.

FACTUAL AND'PROCEDURAL BACKGROUND

Defendant began working as an administrative employee at the United States Attorney’s office in Los Angeles in 1990. In 2000, she was indicted on 10 counts of theft of government funds, mail fraud, and wire fraud. She pleaded guilty to one count of mail fraud and admitted to having used government credit cards for unauthorized personal purchases of between $350,000 and $500,000.

At sentencing, the parties agreed with the probation office that Defendant’s offense level was 16 and that her Criminal History Category was I, resulting in a sentencing range of 21 to 27 months. Defendant requested, and the government opposed, a six-level downward departure because of Defendant’s family circumstances and mental and emotional condition. In support of her request, Defendant produced the evaluation of Dr. Barbara Cort Counter, a forensic psychologist.

Dr. Counter characterized Defendant as suffering from “severe symptoms of post-traumatic stress” occasioned by two events: her abandonment by her parents ás a child and the violent murder of her fiancé, the bloody aftermath of which she witnessed while five months pregnant with their child in 1989. Defendant’s theft offense, according to Dr. Counter, was part of a “manic denial of psychic trauma, accompanied by compulsive coping behaviors.” Dr. Counter had evaluated Defendant for three-and-one-half hours, administered and reviewed a psychological test, spoken with Defendant’s counsel, and reviewed letters submitted by Defendant’s family members. Defendant made Dr. Counter available for cross-examination, [695]*695which the government declined at the first sentencing hearing. Nor did the government offer any expert psychological testimony of its own.

Defendant also argued for a departure because of the unusually important role that she played in the life of her daughter, who was 11 years old at the time of the first sentencing hearing in 2001. Since the murder of her fiancé, Defendant has been the sole parent and the primary source of financial support for her daughter.

After hearing argument, the district court departed downward by eight levels, resulting in a sentencing range of zero to 6 months. The court sentenced Defendant to five years of probation, upon the condition that she serve 40 days of her probation, on consecutive weekends, in “a jail-type institution.” The court also ordered restitution totaling $435,918, plus 3,000 hours of community service. In addition, Defendant was prohibited from applying for a loan or line of credit without the prior approval of the probation office.

The government appealed, and we vacated the sentence and remanded for re-sentencing because the district court had given no reasons for “the direction and the degree of the departure.” Meny-tueather I, 36 Fed.Appx. at 263. After that first remand, the district court denied the government’s motions for an independent psychological evaluation of Defendant and additional investigation by the probation office, ruling that those procedures could have been, but were not, requested at the initial sentencing. After a hearing at which the government cross-examined Dr. Counter, the court reaffirmed its previous sentence. In support of the sentence, the court recited and adopted specific findings of fact and conclusions of law, as well as noting that it relied on Defendant’s post-conviction rehabilitation.

In Menyweather II, we again vacated the district court’s sentence and remanded, holding that the court (1) erred in relying on post-conviction rehabilitation without giving notice to the government, and (2) failed to explain the extent of the departure, as distinct from the bases for departure. 69 F. App’x 874-75. On remand, the district court again denied the government’s request for further development of the record and reaffirmed its sentence. In support of the sentence, the court adopted expanded findings of facts and conclusions of law that included citations to cases in which downward departures of comparable degree had been affirmed. The court eliminated its earlier reliance on post-conviction rehabilitation.

The government timely appealed the sentence.

LEGAL STANDARDS AND STANDARDS OF REVIEW

In the wake of Booker, federal sentencing is now governed by 18 U.S.C. § 3553(a), which states that district courts “shall consider” the following factors:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—

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Bluebook (online)
431 F.3d 692, 2005 U.S. App. LEXIS 27760, 2005 WL 3440800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dorothy-menyweather-ca9-2005.