United States v. Working

175 F.3d 1150, 99 Cal. Daily Op. Serv. 3300, 99 Daily Journal DAR 4262, 1999 U.S. App. LEXIS 8563, 1999 WL 274139
CourtCourt of Appeals for the Ninth Circuit
DecidedMay 6, 1999
DocketNos. 98-30121, 98-30122
StatusPublished
Cited by3 cases

This text of 175 F.3d 1150 (United States v. Working) 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. Working, 175 F.3d 1150, 99 Cal. Daily Op. Serv. 3300, 99 Daily Journal DAR 4262, 1999 U.S. App. LEXIS 8563, 1999 WL 274139 (9th Cir. 1999).

Opinion

PREGERSON, Circuit Judge:

This case is about a woman pushed to her breaking point by a husband who continually abused her with threats and lies until one day she snapped and shot him. It is also about a district court’s exercise of discretion to depart downward from the applicable Sentencing Guideline range because it found that her behavior was “aberrant.”

I.

Brenda and Michael Working were married on September 8, 1990. At the time, Michael had two young sons from an earlier marriage. Later, Brenda and Michael had two daughters.

Despite outward appearances, their family was troubled. Michael was psychologically and verbally abusive toward his sons and toward Brenda. Before Michael’s oldest son graduated from high school, Michael permanently kicked him out of the house. Things came to a head in early 1997 when Michael accused Brenda of having an inappropriate relationship with his other son.

After the accusation, Michael moved out of the house and into a cottage on the premises. Brenda stayed in the house with the remaining children. But Michael continued to come into the house at will and harass Brenda with false accusations about her relationship with his son. He towered over her, yelled at her, pushed and shoved her, and threatened to take away the two girls saying, “Just wait, Brenda, I’m going to take those kids from you. You’re never going to see them again.”

Michael made good on his threats when he filed for divorce on July 16, 1997. In the divorce petition he alleged sexual misconduct by Brenda and sought sole custody of the couple’s daughters. Brenda sought a restraining order against Michael because she was afraid of him and feared that he might run away with the girls. The restraining order was denied.

On August 2, 1997, a few days before a hearing on the divorce petition was to be held, Brenda picked up a handgun that she had purchased a week earlier from a pawn shop. At approximately 10:45 p.m. that evening, Brenda called Michael at the cottage. She told him that her minivan had broken down along the road that goes through Fort Lewis, Washington, and that she had their daughters with her. She asked Michael to come and pick them all up.

Michael arrived at the location around 11:00 p.m. He spotted the minivan and maneuvered his Ford Bronco next to it. Brenda approached Michael while he remained seated in his car. Without warning, Brenda pulled out her gun and began shooting. Michael ducked down into the passenger side of the front seat but was hit in the left arm and shoulder. When Brenda stopped shooting, Michael started his Bronco and drove it into some bushes. He climbed out of his car, hid in the bushes, and watched Brenda reload. Brenda repositioned the minivan so that the headlights shone on the bushy area where Michael was hiding. Michael started to run and Brenda shot him. Michael turned around and rushed Brenda, knocking her to the ground. During the ensuing struggle, Brenda struck Michael on the head several times with the gun. Michael hit Brenda in the face two times and then [1153]*1153fled. The police obtained a taped statement from Michael, who was in the hospital, and arrested Brenda the day after the shooting.

Brenda pled guilty to use of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c), and assault with intent to commit first degree murder, in violation of 18 U.S.C. § 113(a)(1). At the sentencing hearing, the district court sentenced Brenda to the mandatory minimum five year term of imprisonment for the firearm offense. For the assault offense, Brenda argued that the district court should depart downward from the applicable sentencing range in the Sentencing Guidelines because her behavior was aberrant. The Government agreed that the court had the legal authority to depart downward but urged the court to reject departure in Brenda’s case.

The court found Brenda’s behavior aberrant and departed downward by 21 levels. It sentenced Brenda to one day in prison for the assault offense. The one-day sentence was to run consecutively with the five-year mandatory minimum sentence.2 This brought Brenda’s total sentence to five years and a day in prison. The court noted that if it had the authority to do so, it would have departed downward for the firearm offense. The court further imposed three years of supervised release and ordered restitution in the sum of $114,980 primarily for Michael’s medical expenses.

The Government appeals and argues (1) that the district court clearly erred in finding Brenda’s behavior aberrant; and (2) that the court abused its discretion when it departed downward by 21 levels on the assault offense. Brenda cross-appeals asserting that the district court did have discretion to depart downward on the mandatory minimum five-year sentence for the firearm offense. We affirm.

II.

The district court had jurisdiction because the incident took place on Fort Lewis, a federal military base located in the state of Washington. See 18 U.S.C. § 7. This court has jurisdiction under 28 U.S.C. § 1291.

III.

We review the district court’s finding of aberrant behavior for clear error. See United States v. Green, 105 F.3d 1321, 1322 (9th Cir.1997); U.S. v. Fairless, 975 F.2d 664, 666 (9th Cir.1992). “A single act of aberrant behavior may be a mitigating circumstance justifying a downward departure from the applicable Guideline range.” Fairless, 975 F.2d at 667. A determination of aberrant behavior must be based on a “convergence of factors.” Id. at 668. Factors have included

(1) the singular nature of the criminal act, (2) spontaneity and lack of planning, (3) the defendant’s criminal record, (4) psychological disorders the defendant was suffering from, (5) extreme pressures under which the defendant was operating ..., (6) letters from friends and family expressing shock at the defendant’s behavior, and (7) the defendant’s motivations for committing the crime.

United States v. Colace, 126 F.3d 1229, 1231 n. 2 (9th Cir.1997).

The district court found Brenda’s behavior aberrant based on a “convergence of factors.” First, it found that Brenda’s assault of Michael was singular in nature and that Brenda lacked any prior criminal record. Second, the court found that Brenda was suffering from “significant depression” at the time of the shooting and that she was undergoing counseling for her depression. A psychiatric evaluation of Brenda by Dr. Sean M. Killoran stated [1154]*1154that “[t]he severity of her depressive symptoms at the time of the offense and her sense of hopelessness coupled with the desperate quality of her- situation markedly impaired her usual judgment and decision making.”

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175 F.3d 1150, 99 Cal. Daily Op. Serv. 3300, 99 Daily Journal DAR 4262, 1999 U.S. App. LEXIS 8563, 1999 WL 274139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-working-ca9-1999.