United States v. Rachelle L. Miller

991 F.2d 552, 93 Cal. Daily Op. Serv. 2712, 93 Daily Journal DAR 4740, 1993 U.S. App. LEXIS 7780, 1993 WL 112995

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 15, 1993
• Docket: 92-30083
• Status: Published

Opinions

KOZINSKI, Circuit Judge:

A. Rachelle Miller pled guilty to embezzling money from the bank for which she worked. Her Guidelines sentence range was 12 to 18 months, but the district judge departed downward and sentenced her to three years probation plus six months home detention. The government appealed, claiming the district court gave an insufficient explanation of its reasons for departing, and we remanded for resentenc-ing. The district court reimposed the same sentence, this time with a full explanation, and the government appeals again.

B. The first reason the district court gave for departing — that Miller has two small children who “would be placed at potential risk,” ER G at 14, if Miller is sent to jail — is improper. The Commission considered whether family responsibilities should affect the sentence, and concluded they “are not ordinarily relevant in determining” whether to depart. U.S.S.G. § 5H1.6. And there’s nothing extraordinary about this case. Miller “has shown nothing more than that which innumerable defendants could no doubt establish: namely, that the imposition of prison sentences normally disrupts ... parental relationships.” United States v. Berlier, 948 F.2d 1093, 1096 (9th Cir.1991).¹

C. Likewise, the court’s second reason for departing — that Miller has a clean record and poses no threat to the public — is also improper. The Commission considered the fact that people with no criminal history pose relatively little threat; that’s what criminal history category I is all about, and Miller got the benefit of it. See id. at 1095.

D. Another reason the court gave for departing was the magnitude of Miller’s restitution. Miller and two other people embezzled $45,000, but though the plea agreement required her to pay only $18,000 restitution, she paid $58,000 — substantially more, in the court’s view, than she was responsible for. ER G at 15.

The Sentencing Commission considered the possibility that a defendant’s payment of restitution might be a mitigating factor: U.S.S.G. § 3E1.1 app. note 1(b) permits a 2-level decrease for acceptance of responsibility if the defendant pays restitution. A court’s discretion in departing because of restitution is therefore constrained in three ways. First, the departure must be consistent with the attitude the Commission took toward restitution, which is that restitution is relevant to the extent it shows acceptance of responsibility. In this case, this means the payment had to have been genuinely voluntary, rather than motivated primarily by a -collateral consideration such as a desire to settle the civil lawsuit against her by the bank. Second, the court may depart only if the acceptance of responsibility was substantially greater than that contemplated by the Commission when drafting section 3E1.1. See U.S.S.G. § 5K2.0 (p.s.); 18 U.S.C. § 3553(b); Berlier, 948 F.2d at 1096; see also United States v. Brown, 985 F.2d 478, 482-83 (9th Cir.1993) (allowing departure for extraordinary acceptance of responsibility). And third, the magnitude of the departure must be commensurate with the level of the defendant’s acceptance of responsibility. See United States v. Lira-Barraza, 941 F.2d 745, 746-47 (9th Cir.1991) (en banc). Because we're not sure the court applied this standard, we instruct it to reconsider its decision to depart because of payment of restitution.

E. The district court gave one more ground for departing: By the second sentencing hearing, Miller had almost finished serving her six months of home detention. Making her also serve the Guidelines prison sentence would be, the judge said, “a great travesty of justice.” ER G at 16.

We agree it may have been proper to depart because of the six months of home detention Miller had already served. The fact that she’d already been punished to some extent is certainly relevant to what further sentence is needed to punish her and deter others. See 18 U.S.C. § 3553(a)(2) (sentence should reflect these and other considerations). And because the Commission seems not to have considered the issue of compensating for time erroneously served, the district court was free to depart. See 18 U.S.C. § 3553(b).

But its freedom wasn’t unlimited. Home detention is a lighter punishment than prison, so it would have been wrong for the district court to reduce Miller’s prison term by more than the six months she served under home detention. Even reducing the prison term by exactly six months would leave her with a lighter punishment than Congress authorized, though not unacceptably lighter. When home detention is an appropriate punishment (which it would have been had Miller’s offense level been 12 rather than 13), the Guidelines approve of crediting home detention time for prison time on a one-for-one basis. U.S.S.G. § 501.1(e)(3).

We therefore conclude that, if the district court finds the appropriate sentence for Miller would otherwise include some prison time, it may depart downward by up to six months to take into account her home detention. The exact amount of the departure should be dictated by the district court’s balancing of the factors given in 18 U.S.C. § 3553(a)(2).²

SENTENCE VACATED and REMANDED FOR RESENTENCING

1 . The dissent argues this case doesn’t merely implicate "the disruption of the parental relationship,” Dissent at 556, but rather involves "the risk to the children from the imprisonment of a parent,” id. But disruption of the parental relationship when a parent is imprisoned almost always exposes children to the risk of psychological harm; the Sentencing Commission considered this and nonetheless concluded family responsibilities ordinarily ought not justify a departure. Nothing in the record supports a finding that the children here would be exposed to a substantially greater risk of harm than can normally be expected when there is an extended, forced separation from one parent.

2 . United States v. Wilson, — U.S.-, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992), cited by the government, is inapposite. Wilson involved 18 U.S.C. § 3585(b), and turned on the specific language of that statute; it didn’t purport to deal with a district court’s power to depart from a Guidelines sentence under 18 U.S.C. § 3553.

The government contends that, because Miller opposed its motion for a stay of the sentence pending appeal, "the responsibility for the defendant’s having served her six-month period of home detention rests squarely on [her] own shoulders.” Appellant's Brief at 29. The government provides no authority to support this argument, and we have found none. Miller had every right to try to get her sentence over with as soon as possible, rather than leave it hanging over her head pending appeal. Her actions don’t deprive the district court of the power to depart.