United States v. Eisinger

321 F. Supp. 2d 997, 2004 U.S. Dist. LEXIS 11313, 2004 WL 1368338
CourtDistrict Court, E.D. Wisconsin
DecidedJune 9, 2004
Docket2:03-cv-00107
StatusPublished
Cited by1 cases

This text of 321 F. Supp. 2d 997 (United States v. Eisinger) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Eisinger, 321 F. Supp. 2d 997, 2004 U.S. Dist. LEXIS 11313, 2004 WL 1368338 (E.D. Wis. 2004).

Opinion

DECISION AND ORDER

ADELMAN, District Judge.

Defendant Angelique Eisinger pled guilty to a charge of possession of ephedrine with intent to facilitate the manufacture of methamphetamine. A pre-sentence report (PSR) was prepared in anticipation of sentencing, which calculated her offense level as 12 and her criminal history category as III, producing an imprisonment range of 15-21 months. Neither party objects to these calculations, but defendant moves for a downward departure based on (1) her extraordinary post-offense rehabilitation, (2) her extraordinary family circumstances, and (3) the over-representation of the seriousness of her criminal history and the likelihood that she will re-offend by her designated criminal history category. In this decision I address her requests.

I. VERTICAL DEPARTURE REQUESTS

Defendant’s motions based on post-offense rehabilitation and family circum *1000 stances both seek “vertical” departures on the sentencing grid, i.e. reductions in offense level. The court may depart vertically if it finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into account by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0(a). The Sentencing Commission has provided guidance in making departure decisions by listing certain factors that are “forbidden” bases for departure, “discouraged” bases for departure, and “encouraged” bases for departure. Koon v. United States, 518 U.S. 81, 93-95, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1995). In Koon, the Supreme Court adopted the following test for determining whether to depart: (1) What factors of the case make it special or unusual? (2) Has the Commission forbidden, encouraged or discouraged departures based on those factors?

If the special factor is a forbidden factor, the sentencing court cannot use it as a basis for departure. If the special factor is an encouraged factor, the court is authorized to depart if the applicable Guideline does not already take it into account. If the special factor is a discouraged factor, or an encouraged factor already taken into account by the applicable Guideline, the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present. If a factor is unmentioned in the Guidelines, the court must, after considering the structure and theory of both relevant individual guidelines and the Guidelines taken as a whole, decide whether it is sufficient to take the case out of the Guideline’s heartland.

Id. at 95-96, 116 S.Ct.'2035 (internal citations omitted).

A. Post-Offense Rehabilitation

1. Departure Standard

Defendant first argues that her case falls outside the heartland because, since the commission of the offense, she has successfully undergone drug treatment, given birth to a healthy child, and essentially turned her life around. This suggested ground for departure is referenced in U.S.S.G. § 3E1.1, which provides for an offense level reduction for acceptance of responsibility. In deciding whether to grant such a reduction, a court may consider the defendant’s “post-offense rehabilitative efforts.” U.S.S.G. § 3E1.1 cmt. n. 1(g). Thus, courts have generally concluded that a departure is permitted on this basis only if the defendant’s efforts are exceptional enough to be considered atypical of the cases in which the acceptance-of-responsibility reduction is usually granted. See, e.g., United States v. Chapman, 356 F.3d 843, 848-49 (8th Cir.2004); United States v. Smith, 311 F.Supp.2d 801, 804 (E.D.Wis.2004); United States v. Jones, 233 F.Supp.2d 1067, 1070-71 (E.D.Wis.2002) (collecting cases).

Courts considering such departures have often focused on drug and alcohol treatment. See, e.g., United States v. Maier, 975 F.2d 944, 945 (2d Cir.1992); United States v. Logan, No. 02-CR-440, 2004 WL 417341, *4, 2004 U.S. Dist. LEXIS 1201, at *10-12 (N.D.Ill. Feb 2, 2004). But other factors, such as community involvement, family counseling and reconciliation, psychiatric treatment, steady employment, and compliance with conditions of pre-trial release have also been considered. Jones, 233 F.Supp.2d at 1071 (collecting cases). Whatever the specifics, the evidence must show that the defendant has made concrete gains in turning her life around before a sentencing court may properly rely on rehabilitative efforts as a basis for a downward departure. Id.

*1001 2. Defendant’s Motion

In the present case, the evidence shows that defendant has made a remarkable transformation and appears to have succeeded in turning her life around. In order to appreciate where defendant is now, the court must analyze from where she came.

Defendant was born on March 10, 1983, in Camden, New Jersey. Her parents never married, and defendant has never known her father. Her childhood was chaotic. When she was about eight years old, her mother moved the family from New Jersey to Holdingford, Minnesota. They lived there for about two years before moving to Roscoe, MN. At the age of 16, defendant moved to Sartell, MN to live with her maternal grandmother. She stayed there for a short period of time before moving to Stearns County, MN with her mother.

Defendant’s mother was involved with various men during this time and has had six children with four different men. According to defendant, her mother has made poor choices in her relationships. Defendant’s mother is also an alcoholic and suffers from a chemical imbalance, which at times has caused her to be mentally unstable. Defendant states that her mother’s boyfriends were occasionally abusive, and at times they were forced to seek refuge in women’s shelters. At one point, when defendant was 16, her mother was committed to a mental hospital, as a result of which the family lost its apartment and had to live in a homeless shelter.

When defendant was 18, she left her mother’s home; she moved from place to place in central Minnesota until she met Travis Kresbach, who became her boyfriend, in early 2003.

Defendant’s employment history during this time was spotty, at best. She worked as a cashier at a grocery store for two weeks in October 1999, before walking away without notice. She was employed as a part-time clerk at a Hardee’s restaurant in Minnesota for about four months in the Spring of 2000, but quit after going on a drinking binge. In September 2000, she worked part-time as a dishwasher at a restaurant for about one month before quitting without notice. Defendant states that she ran away from home at that time and left her job behind.

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Bluebook (online)
321 F. Supp. 2d 997, 2004 U.S. Dist. LEXIS 11313, 2004 WL 1368338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-eisinger-wied-2004.