United States v. Marine

94 F. App'x 307

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 8, 2004
• Docket: No. 02-3317
• Status: Published

Opinions

CLAY, Circuit Judge.

The government appeals the sentence imposed on Defendant Lisa Lerma Marine, who pled guilty in the United States District Court for the Northern District of Ohio to one count of conspiracy to distribute more than 15, but less than 50, kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The government contends that the district court erred in departing downward from the applicable sentencing guideline range based on Marine’s family responsibilities. Because the district court’s downward departure was justified by the facts of the case, we AFFIRM the sentence.

I

Defendant Lisa Lerma Marine was one of 35 defendants, including her husband, Randy Marine, and six other family members charged in a drug distribution conspiracy. She pled guilty in the United States District Court for the Northern District of Ohio to one count of conspiracy to distribute more than 15, but less than 50, kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. According to Marine’s plea agreement, the government agreed not to oppose the application of U.S. Sentencing Guidelines Manual § 5C1.2, which permits the court to sentence a defendant without regard to the statutory minimum sentence set forth in § 841(a)(1), so long as the defendant satisfies certain criteria. The presentence report indicated an offense level of 34, a two level reduction pursuant to Guidelines § 5C1.2, and a three level reduction pursuant to Guidelines § 3El.l(a) and (b) (acceptance of responsibility). The resulting offense level of 29 carried a sentencing guideline range of 87 to 108 months of incarceration. The court denied Marine’s request for a downward departure for her alleged minimal role in the conspiracy.

At issue on appeal is Marine’s request, and receipt of, a ten level downward departure under Guidelines §§ 5H1.6 and 5K2.0 based on her family circumstances. The following evidence of her family circumstances was presented to the district court: (1) Marine has three children, ages 11, 14 and 17; (2) the 17 year-old daughter has a nine-month old child for whom Marine has cared, allowing the daughter to complete her high school education; (3) Marine provides economic support for her children and grandchild; (4) her husband, who also was involved in the drug conspiracy, was sentenced to 57 months in prison; and (5) there are no family members available to take care of her children. After conducting legal research and thoughtfully deliberating over the matter, the district court granted the ten level departure, reasoning as follows:

It is clear that the mere existence of parental responsibilities is not extraordinary. It is also clear that there are myriads of single parent homes with three or four children in them, so that in and of itself is not extraordinary.

It is also evident that many families cannot rely on the possibility of family or close friends rather than strangers assuming custody of the children, and in many instances, like this case, there is also the absence of criminal history. It is where that rare case comes along where several of these instances or conditions coalesce that serious consideration of downward departure should exist.

It’s been represented to me in this court that the defendant’s mother cannot or will not care for the children and that there is no one else able to do so. Their father was sentenced a week ago to 57 months in prison. There are three children at home, 17 years, 11 and seven, the oldest of whom has a nine month old child.

Lisa [Marine] has no criminal history points at all, has been working third shirt [sic] at a bakery, and so we’re faced with four young lives which are impacted directly by this case, by this crime, a crime not to be condoned but in which this defendant apparently profited little but played a significant role.

It is my conclusion that the circumstances coalescing in this case do, in fact, justify a downward departure, not because of the defendant but because of the children in this case and the responsibility of the defendant in caring for those children.

(J.A. 157-59.)

Because the court departed downwardly 10 levels to level 19, Marine was subject to a Guidelines range of 30 to 37 months in prison. The court then sentenced Marine to 30 months of prison. Thereafter, Marine requested, and was granted, permission to participate in The Intensive Confinement Center Program (Boot Camp), as set forth in 18 U.S.C. § 4046. The government objected to the departure, and this appeal followed.

II

Section 401(d)(2) of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (“PROTECT Act”), Pub.L. No. 108-21, 117 Stat. 650, 670 (Apr. 30, 2003) changed the standard of review for decisions to depart from the Sentencing Guidelines. United States v. Camejo, 333 F.3d 669, 675 (6th Cir.2003). Prior to the PROTECT Act, this Court reviewed the decision to depart for an abuse of discretion. Id. (following United States v. Tarantola, 332 F.3d 498, 500 (8th Cir.2003)). Due to the PROTECT Act, however, the decision to depart from the Sentencing Guidelines is reviewed de novo. See 18 U.S.C. § 3742(e) (providing that whether a district court’s decision to depart outside the applicable guideline range is justified by the facts of the case is to be reviewed de novo).

What is less clear is whether the PROTECT Act applies to cases such as this that were pending on appeal as of the PROTECT Act’s effective date. A panel of this Court declined to address this issue because it would have affirmed the district court’s departure under either standard of review. Camejo, 333 F.3d at 675 (following Tarantola, 332 F.3d at 500). It appears, however, that the new standard would apply to Marine’s appeal because the new standard of review effected only a procedural change to the law, thereby obviating any concerns about retroactive application of the new standard. See United States v. Andrews, 353 F.3d 1154, 1155 n. 2 (10th Cir.2003); United States v. Bell, 351 F.3d 672, 675 (5th Cir.2003); United States v. Stockton, 349 F.3d 755, 764 n. 4 (4th Cir.2003); United States v. Mallon, 345 F.3d 943, 946-17 (7th Cir.2003); United States v. Frazier, 340 F.3d 5, 14 (1st Cir. 2003); United States v. Hutman, 339 F.3d 773, 775 (8th Cir.2003). We need not resolve the issue, because we hold that the district court’s downward departure withstands the more rigorous de novo review.

A sentencing court is required to impose a sentence within the applicable Sentencing Guidelines range “unless the court finds that 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.” 18 U.S.C. § 3553(b). “To determine whether a circumstance was adequately taken into consideration by the Commission, Congress instructed courts to ‘consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.’ ” Koon v. United States, 518 U.S. 81, 92-93, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (quoting 18 U.S.C. § 3553(b)). According to the Guidelines Manual, the Sentencing Commission did not adequately take into account cases that are “unusual.’ ” Id. at 93 (quoting 1995 U.S.S.G. ch. 1, pt. A, intro, comment. 4(b)). The Introduction to the Sentencing Guidelines explains:

The Commission intends the sentencing courts to treat each guideline as carving out a ‘heartland,’ a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.

U.S. Sentencing Guidelines Manual ch. 1, pt. A, intro, cmt. 4(b) (2002).

The Sentencing Guidelines list certain facts that never can be bases for departure, such as race, sex, national origin, creed, religion and socio-economic status. Id. § 5H1.10. Other factors are not prohibited, but are discouraged. Discouraged factors are those “not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline range.” Id. ch. 5, pt. H, intro, comment. One example of a discouraged factor is “family ties and responsibilities.” Id. § 5H1.6. According to the Commission, such a factor should be relied upon to depart from a mandatory minimum only in “exceptional cases.” Id. ch. 5, pt. H, intro, comment. Thus, the Supreme Court has held that “[i]f the special factor is a discouraged factor, ... 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.” Koon, 518 U.S. at 96.

To determine whether a case is exceptional, the district court must make “a refined assessment of the many facts bearing on the outcome, informed by its vantage point and day-to-day experience in criminal sentencing.” Id. at 98. Whether a discouraged sentencing departure factor, such as the defendant’s family responsibilities, “nonetheless justifies departure because it is present in some unusual or exceptional way, are matters determined in large part by comparison with the facts of other Guidelines cases.” Id. The Supreme Court has opined that, because district courts have an institutional advantage over appellate courts in determining the propriety of departures, they have a “special competence” to determine what is ordinary or unusual in a particular case. Id. at 99 (internal quotation marks and citation omitted). For this reason, Congress originally directed the courts of appeals to “give due deference to the district court’s application of the guidelines to the facts.” 18 U.S.C. § 3742(e)(4) (2002). As noted above, however, Congress recently amended § 3742(e), eliminating an appellate court’s deference to the district court’s “application of the guidelines to the facts” with respect to departures from the applicable Sentencing Guidelines range. 18 U.S.C. § 3742(e) (2003).

The leading case in the Sixth Circuit on the propriety of a downward departure for family responsibilities is United States v. Reed, 264 F.3d 640 (6th Cir.2001). There, the district court departed downward 13 levels to account for the defendant’s family circumstances. Id. at 653. The defendant had assumed a significant role in the development and upbringing of her five nieces and nephews, four of whom were under the age of 18. Id. She helped ensure that the children ate properly and did their homework and provided them with emotional support. Id. Because the defendant’s sister allegedly was extremely immature and dysfunctional, a family assessment report concluded that defendant’s imprisonment likely would result in the family falling apart and the younger children being sent to foster care. Id. In departing downward, the district court found that the defendant was essentially the children’s surrogate parent, providing them “invaluable and incalculable emotional and financial support.” Id. at 654.

The Reed Court began its analysis by noting that it “has generally not approved of downward departures for family responsibilities based on a parent’s obligation to a child.” Id. (citing, among others, United States v. Brewer, 899 F.2d 503, 508-09 (6th Cir.1990) (reversing district court’s downward departure for two married mothers convicted of embezzlement because mothers failed to explain how their family circumstances involving young children distinguished them from other embezzlers who have family responsibilities)). The Court further noted that “[o]ther circuits have been similarly reluctant to find that even a single parent’s responsibility for a child was a family circumstance so exceptional as to merit a sentencing departure.” Id. (citations omitted). The Court then held as follows:

In light of this and other circuits’ reluctance to permit downward departures for single parents with young children, even for those who provide financial and emotional support for their children, and even when the children are likely to be placed in foster care pending their parent’s incarceration, we do not believe that [the defendant] has presented any evidence to demonstrate that her family circumstances are exceptional.

Id. at 655. Applying the now-defunct, but highly-deferential abuse of discretion standard, the Court held that the district court had abused its discretion in departing downward. Id.

We hold that Marine’s situation is distinguishable from the defendant’s situation in Reed in that Marine is the biological mother of the children at issue, whereas the defendant in Reed was not a custodial caretaker; she was an aunt. Reed, 264 F.3d at 655. In addition, unlike the defendant in Reed, Marine Uves with her children and provides financial support for them. Id. There also is no evidence in the record that Marine regularly has taken extended vacations away from her children, a fact that severely undermined the district court’s decision to depart downward in Reed. Id. Thus, Marine’s family ties are far more significant than those at issue in the Reed case and, additionally, the combination of family circumstances suggests that her incarceration would impose a far more onerous burden on those for whom she cares.

The district court below noted generally that the existence of parental responsibilities is not extraordinary, nor are single parent homes, or the fact that many families cannot rely on family members or close friends to assume custody of their children. Taken individually, any one of these family circumstances is not extraordinary. See also Brewer, 899 F.2d at 508 (“Unfortunately, it is not uncommon for innocent young family members, including children to suffer as a result of a parent’s incarceration.”) (internal quotation marks, punctuation and citation omitted). The court found in Marine’s case, however, that all of these conditions existed simultaneously; they “coalesced” to render her situation extraordinary: (1) she takes care of her own three biological children aged 17, 11 and seven,¹ and her infant granddaughter; (2) she is effectively a single parent because her husband was sentenced to almost five years in prison; and (3) there are no family or friends to care for her children, thereby rendering it likely that they would end up in foster care.

In essence, the district court found Marine to be “irreplaceable,” a circumstance that other courts have found justifies a downward departure based on family ties. See United States v. Leon, 341 F.3d 928, 931-33 (9th Cir.2003) (observing that “[pjermissible downward departures generally involve situations where the defendant is an replaceable caretaker of children, elderly, and/or seriously ill family members, and the extent of the departure appropriately serves to protect those family members from the impacts of the defendant’s prolonged incarceration”; affirming downward departure under de novo standard because of the defendant’s indispensable role in caring for his wife) (emphasis in original; citations omitted); United States v. Pereira, 272 F.3d 76, 80-83 (1st Cir.2001) (noting that a district court must find that defendant is “irreplaceable” before granting downward departure under Guidelines based on discouraged factor of family obligations) (citations omitted). We agree with the district court that the extraordinary facts of this case showed Marine to be an irreplaceable caretaker of her children. Accordingly, the district court’s downward departure based on Marine’s family ties and responsibilities was justified. 18 U.S.C. § 3742(e).

While Judge Suhrheinrich’s dissent raises several forceful questions about our disposition of this case, they are not without answers. For one, to say that a downward departure in this area requires extraordinary circumstances, as we agree, is not to say that those circumstances may never exist. They can, and they do in this case. For another, any departure in this area is susceptible to a divide-and-conquer response in which each individual factor is open to criticism as a ground for departure by itself. The point here, as the district court correctly recognized, is that this aggregation of circumstances presents the rare instance where the constellation of pertinent factors warrants a departure. For still another reason, the case law supporting this outcome is not as anemic as the dissent suggests. See e.g., United States v. Aguirre, 214 F.3d 1122 (9th Cir. 2000) (affirming district court’s downward departure for defendant whose incarceration would leave her eight year-old without a custodial parent); United States v. Gauvin, 173 F.3d 798 (10th Cir.1999) (affirming district court’s downward departure for defendant who was primary supporter of four young children); United States v. Johnson, 964 F.2d 124 (2d Cir.1992) (affirming district court’s downward departure for defendant who was solely responsible for raising her three young children-including an infant-and the young child of her institutionalized daughter); United States v. Alba, 933 F.2d 1117 (2d Cir.1991) (affirming district court’s downward departure for defendant who had responsibility for two daughters-four and eleven years in age-a disabled father and a paternal grandmother).

The dissent also creates the impression that the our holding today runs contrary to case law in this circuit. All of the cases cited by the dissent, however, are manifestly distinguishable on their facts or otherwise consistent with our disposition of this case. First, Marine’s family ties and responsibilities are far more compelling than those of the defendant in Reed, supra. See discussion, supra.

Second, the opinion in United States v. Calhoun, 49 F.3d 231 (6th Cir.1995) fails to indicate whether the defendant in that case was the sole custodian of the child at issue or whether there was another potential family member who was willing and able to care for the child. In Marine’s case, these facts were critical to the district court’s downward departure.

Third, the two defendants in United States v. Brewer, 899 F.2d 508 (6th Cir. 1990) had “stable family relationships” and their spouses were “gainfully employed.” Id. at 508. Thus, there was an alternative source of support and care for the defendants’ children. Marine’s situation is not at all comparable.

Fourth, the opinion in United States v. Sailes, 872 F.2d 735 (6th Cir.1989) fads to indicate whether the defendant in that case was the sole custodian of the children at issue or whether there was another potential family member who was willing and able to care for them. In fact, there is some suggestion that there may have been another caretaker available. At sentencing, the defendant asked for a sentence reduction because she “really need[ed] to help take care of [her] kids.” Id. at 737 (emphasis added). In addition, the district court refused to depart downward because the defendant had involved one of her children in her criminal activity, the distribution of drugs. This fact supported the court’s finding that the development of her children might be facilitated by their removal from her direct influence. Id. at 739. There were no such findings in Marine’s case.

Last, the opinions in United States v. Tocco, 200 F.3d 401 (6th Cir.2000) (“Tocco I”) and United States v. Tocco, 306 F.3d 279 (6th Cir.2002) (“Tocco II”) offer little direction regarding the disposition of Marine’s case. Tocco I reached no conclusion as to the propriety of a downward departure in that case, instead instructing the district court on remand to examine the defendant’s personal involvement in the care of his wife and family and to consider whether his wife “ha[d] alternative sources of support other than her husband.” Tocco I, 200 F.3d at 435-36. Arguably, this language suggests that a district court should look to the existence of alternate sources of childcare for a defendant like Marine who is facing incarceration. This is exactly what the district court did in Marine’s case. On remand after Tocco I, the district court found as a factual matter that a departure based on the defendant’s wife’s health would not be appropriate. Tocco II, 306 F.3d at 294-95. This Court never reviewed the substance of that finding on appealM at 295. Thus, Tocco II has nothing at all to say on the issue of downward departures based on family ties and responsibilities.

Ill

For the foregoing reasons, the district court’s sentence imposed on Defendant Lisa Lerma Marine is hereby AFFIRMED.

1 . As pointed out by the dissent, the actual age of Marine’s children at the time of her sentencing appears to have been 17, 14 and 11.