Review of Recent Substantial Assistance, Other Downward Departure Cases, and Guideline Amendments

INTRODUCTION

This review includes two November 1998 amendments to departure policy statements and commentary as well as relevant case law from the circuit and district courts published in 1998 and January and February of 1999. No cases are included which merely affirm the denial of a downward departure where the district court understood its ability to depart but refused to exercise its discretion. A number of cases appear two or three times in this review because they address different departure bases. The cases on substantial assistance, along with a summary of recent issues therein, are grouped separately, before other departure bases.

NEW AMENDMENTS

Two of the November 1998 amendments to the Guidelines affect downward departures. First, § 5K2.13 (diminished capacity) has changed in two ways. The Commission rewrote the policy statement to explain that a departure is possible "if the defendant committed the offense while suffering from a significantly reduced mental capacity," unless (1) the reduced mental capacity was caused by voluntary use of drugs or other intoxicants, (2) the offense involved actual violence or a serious threat of violence and thus the public needs to be protected, or (3) the defendant's criminal history demonstrates a need to protect the public through incarceration. This amendment changes the language of the policy statement referencing the underlying offense. As amended, the policy statement no longer references a "non-violent offense." Now, the exception only applies to offenses which do not involve actual violence or a serious threat of violence. Relying on United States v. McBroom, 124 F.3d 533 (3rd Cir. 1997), amendment 583 also added application note 1 defining "significantly reduced mental capacity" as "a significantly impaired ability to (A) understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the defendant knows is wrongful." Prior to this definition, some courts had a required showing under (A) as opposed to either (A) or (B). Second, in addition to minor language changes, the November 1998 amendments altered the language of § 5K2.0 (departures) in three potentially substantive ways. In the first way, the commission added a new paragraph to the commentary explaining that under Koon the abuse of discretion standard applies to appellate review of district court departure decisions. The added section also provides an extensive quote from Koon explaining how district courts should define the heartland and determine whether the instant case falls within or outside the heartland by comparison with other cases before the court on a day-to-day basis. In the second way, at the end of the last paragraph of the policy statement of § 5K2.0, the Commission struck the following quoted provision: that a potential departure factor may distinguish the case from the heartland "in a way that is important to the statutory purposes of sentencing." This revision potentially expands departures under § 5K2.0 for factors not considered by the guidelines because those factors do not need to remove the case from the heartland in a way related to the purposes of sentencing, outlined in 18 U.S.C. § 3553(a). In the third way, the amendment added to the last sentence in the first paragraph of the policy statement that even if a guideline takes a factor into account, the factor can still be the basis for a departure in unusual circumstances if the "weight attached" to that factor is "excessive." Thus by adding "excessive," the Commission has recognized that a departure may be warranted in part because a specific offense characteristic or adjustment itself is excessive. The Commission's recognition that an enhancement or an adjustment may be excessive provides some new ground to argue for departures.

SUBSTANTIAL ASSISTANCE (§5K1.1)

The current issue under substantial assistance departure concerns a defendant's attempt to force the court to grant the departure based upon a plea agreement even when the government refuses to make a substantial assistance departure motion. The departure is usually addressed in the plea agreement and takes two forms, one where the language suggests the government retains sole discretion and one where the language suggests the government has bound itself more directly. If the government retains sole discretion over whether to file the motion, the defendant can only challenge the government's denial if it is based upon an unconstitutional motive or bias, or if the refusal to file was not rationally related to any legitimate government end. There is a split in the circuits as to whether the government is required to not act in bad faith, even in cases where the prosecution retains sole discretion as to whether to make the downward departure motion. Six circuits have held that the defendant can force specific performance of the plea agreement and receive the departure if it is found the government has acted in bad faith. Three Circuits adhere to the contrary position, that there is no bad faith exception. As a matter of advocacy, enforcement of a contract law bad faith exception fits easily within established contract law precedent. Otherwise, the government is legally shielded when it acts in bad faith in not moving for a substantial assistance departure. Furthermore, defendants will be discouraged from signing plea agreements where the government had unreviewed discretion as to the departure motion. Conversely, opponents of the bad faith exception argue that Wade expresses a clear public policy in favor of providing the government with almost complete discretion to decide whether or not to make the motion. Furthermore, without governmental authority, defendants might hold back during proffer sessions, hoping to have the court enforce the agreement for less than full cooperation. Moreover, an inquiry by the court is likely to reveal important information, vital to an ongoing investigation; information which the government has an interest in keeping confidential. Additionally, some courts cite the interest in enforcing the plain language of the plea agreement which allows the government "sole discretion." Finally, issues raised by the defendant of this nature are likely to be difficult for the court to assess. The government may be in a better position to assess the value of the defendant's information. In cases where the government has not retained "sole discretion" over the decision, but rather where the language of the plea agreement suggests that the government must file the departure motion (such as agreements which state that if substantial assistance is provided, the government "shall" make the motion), courts are more willing to police the government's performance to see if it was required to make the departure motion.

RECENT SUBSTANTIAL ASSISTANCE CASES

United States v. Williams, ___F.3d ___, 1999 U.S. App. LEXIS 3094 (6 th Cir. February 23, 1999) (Affirming district court's refusal to void plea agreement where defendant argued that his failure to comply with agreed upon substantial assistance clause should have voided entire plea agreement)

United States v. Doe, ___F.3d ___, 1999 U.S. App. LEXIS 3153 (1 st Cir. January 7, 1999) (The plea agreement reserved for the government the "sole discretion" as to whether to move for a downward departure based upon substantial assistance. The defendant appealed the failure of the government to make such a motion and the trial court's refusal to specifically enforce the agreement in the absence of a claim of unconstitutional bias or a claim that the failure was not rationally related to a legitimate government end. On appeal, the First Circuit refused to choose among the competing Circuits as to whether the trial court has the authority to specifically enforce a plea agreement for allegations of bad faith (as in contract law). The court held that it would not decide the issue because the defendant's allegations at most accused the government of delaying to act on the information provided until it was not helpful and thus could not even satisfy the bad faith standard.)

United States v. Mikaelian, ___ 168 F.3d 380 ___ (9th Cir. 1999) (After government failed to move for downward departure for substantial assistance where plea agreement granted government sole discretion, defendant moved for departure nevertheless based upon unconstitutional motive, arbitrariness, and bad faith. Defendant also moved to gain access to the government's debriefing report filed in camera with the District Court. The district court denied the departure and refused to allow counsel access to the report. The Ninth Circuit reversed, remanding for specific findings as to why the district court found the government had not acted bad faith or arbitrarily and ordered the trial court to allow the defendant access to the in camera report)

United States v. Lezine, ___ 166 F.3d 895 ___ (7th Cir. 1999) (Where plea agreement stated that "assuming the defendant's full and truthful cooperation" government "shall" make §5K1.1 motion, court will review government's decision not to make motion where defendant raises the issue; here, defendant's false statements, even about minor details, relieved the government of its contractual obligation)

United States v. Difeaux, ___ 163 F.3d 725 ___ (2nd Cir. 1998) (Letter from United States Marshal to district court indicating that defendant's assistance resulted in apprehension of another suspect could not be construed as government motion for downward departure due to substantial assistance)

United States v. Solis, ___ 161 F.3d 281 ___ (5th Cir. 1998) (Reversing district court's grant of downward departure for substantial assistance despite government's failure to make motion. Trial court erred in granting departure for assistance provided under catch-all departure section § 5K2.0. The Fifth Circuit held that cases where the government does not move for the departure but are outside the heartland of §5K1.1 and can never fall within § 5K2.0, but rather are either based upon an unconstitutional motive or where the government acted in bad faith. The Court also noted that where the government retains "sole discretion" bad faith allegations will not assist the defendant)

United States v. Abuhouran, ___ 161 F.3d 206 ___ (3rd Cir. 1998) (District court not authorized to downward depart for substantial assistance under § 5K1.1 where government fails to make a motion unless government's failure is based upon (1) an unconstitutional motive, i.e. race, gender, or defendant's exercise of constitutional rights, or (2) the government acted in bad faith. § 5K2.0 provides no additional grounds for departure for substantial assistance)

United States v. Orozco, ___ 160 F.3d 1309 ___ (11th Cir. 1998) (Defendant could not use Rule 35(b) motion to seek downward departure for substantial assistance where he provided assistance regarding suspect at time of sentence which AUSA deemed not useful, but defendant testified five years later to same information at suspect's trial; one year time limit on Rule 35(b) prevented re-sentencing)

In Re Sealed Case, ___ 149 F.3d 1198 ___ (D.C. Cir. 1998), reh'g granted en banc, 159 F.3d 1362 (1998) (oral argument 1/27/99, decision pending) (Downward departure for substantial assistance is possible even if government fails to make motion for departure under § 5K1.1)

United States v. Anzalone, ___ 148 F.3d 940 ___ (8th Cir. 1998) reh'g granted en banc, 1998 U.S. App. LEXIS 23921 (1998) (oral argument not yet scheduled) (Reversing denial of departure because government's failure to make § 5K1.1 motion cannot be based upon defendant's continued drug use, only question is did the defendant provide substantial assistance, and if so, government must make motion but can also inform court of other circumstances)

United States v. Newman, ___ 148 F.3d 871 ___ (7th Cir. 1998) (Affirming district court's departure and rejecting defendant's argument that had government informed court of full extent of his assistance, court would have granted larger departure)

United States v. Santoyo, ___146 F.3d 519 ___ (7th Cir. 1998) (Affirming denial of downward departure based upon substantial assistance where government did not make § 5K1.1 motion, government's decision was not based on unconstitutional motive, but rather that defendant's information was just that he could not say another suspect was involved in criminal activity and so defendant offered no affirmative information, thus no departure under § 5K2.0 was appropriate either)

United States v. Isaac, ___ 141 F.3d 477 ___ (3rd Cir. 1998) (Where plea agreement gave government "sole discretion" to file § 5K1.1 motion and government decided that information provided by defendant had not been independently verified and thus was not helpful, district court erred in holding that it had no authority to review government's actions under agreement; on remand court must look to see if government's decision was made in good faith)

United States v. Campo, ___ 140 F.3d 415 ___ (2nd Cir. 1998) (Reversing district court's refusal to grant downward departure after government made § 5K1.1 motion because court stated it needed government to make a specific sentencing recommendation and government refused to do so)

United States v. Kaye, ___ 140 F.3d 86 ___ (2nd Cir. 1998) (Reversing district court's denial of downward departure under § 5K2.0 for substantial assistance given to local authorities, court had incorrectly held it could not depart on such grounds and only could depart under § 5K1.1 upon motion of government)

United States v. Mitchell, ___ 136 F.3d 1192 ___ (8th Cir. 1998) (Reversing because government breached plea agreement to recommend downward departure for substantial assistance when after making the motion, government undercut its argument by stating that defendant had already received his benefit in case with reduction of charges and by presenting victim impact testimony, violating the spirit of the agreement)

United States v. Pipes, ___ 22 F. Supp. 2d 1070 ___ (D. Neb. 1998) (Downward departure denied because government's refusal to make § 5K1.1 motion was rationally based upon opinion that defendant's assistance was not helpful and defendant had lied)

United States v. Gonzalez-Bello, ___ 10 F. Supp. 2d 232 ___ (E.D. N.Y. 1998) (Downward departure granted where defendant wanted to cooperate with government from outset of case and government wanted her cooperation, but her initial attorney's conflict of interest in being paid by a group that "offered her up" for conviction as member of drug ring caused him to advise defendant not to provide government assistance)

United States v. Casso, ___ 9 F. Supp. 2d 199 ___ (E.D. N.Y. 1998) (Defendant's request for specific performance of plea agreement in government moving for downward departure under § 5K1.1 denied because government's claim that defendant had continued to commit crimes during cooperation justifies government's honest dissatisfaction with performance)

OTHER RECENT DOWNWARD DEPARTURE CASES

Aberrant Behavior: The Third, Fourth, Fifth, Seventh, Eighth, Eleventh, and D.C. Circuits follow the single act test which requires spontaneous criminal activity and little if any planning. The First, Second, Ninth, and Tenth Circuits follow the totality of circumstances test. Under this test, a departure is warranted if an act is a short- lived departure from an otherwise law-abiding life. Factors for the latter include: the level of planning, the singular nature of the act, the defendant's criminal record, any psychological disorders at the time of the offense, extreme pressure upon the defendant, letters from family and friends expressing shock over the behavior, the defendant's motivations, the level of pecuniary gain derived, charitable activities and good deeds performed, employment history, and a defendant's support of family. The issue has not yet been decided by the Sixth Circuit.

Zecevic v. United States Parole Commission, ___163 F.3d 731 ___ (2nd Cir. 1998) (Joining the First, Ninth, and Tenth Circuits holding that test for aberrant behavior is not showing of single act which was spontaneous and required no planning, but rather a totality of circumstances test)

United States v. Bradstreet, ___ 135 F.3d 46 ___ (1st Cir.), cert. denied, 140 L. Ed. 2d 944 (1998) (Reversing district court's grant of downward departure based upon aberrant conduct for two reasons: first, defendant did not plead guilty and admit conduct was improper and thus aberrant, and second, defendant's testimony that he did not intend to defraud is necessarily false based upon jury verdict and facts of this case and thus dishonest crime is not single act of aberrant behavior because defendant has further lied on stand)

United States v. Stevens, ___ F. Supp. 2d ___, 1998 U.S. Dist. LEXIS 19471 (D. Alaska December 8, 1998) (Downward departure denied because defendant's downloading of child pornography was not single incident, each of 400 downloads could be considered a separate crime, and letters from family and friends expressing shock are likely in child pornography case)

United States v. Gamez, ___ 1 F. Supp. 2d 176 ___ (E.D. N.Y. 1998) (Downward departure granted because although criminal activity occurred over a few months, crime was one time episode in productive law-abiding lives where defendants had emigrated from South America at young age, overcame poverty and worked themselves up to become small business owners, became naturalized citizens and upstanding members of the community (as demonstrated by letters from friends and family), and one defendant served for two years in military service)

United States v. Delgado, ___ 994 F. Supp. 143 ___ (E.D. N.Y. 1998) (Downward departure granted in part because defendant in debt to Colombian credit company was coerced into flying to United States while carrying suitcase company had filled with heroin and defendant had no prior trouble with the law in Colombia)

United States v. Martinez-Villegas, ___ 993 F. Supp. 766 ___ (C.D. Cal. 1998) (Downward departure granted where crime was single act of drug transportation, although defendants made statements to undercover agents which indicated they had experience with drug transport; district court considered this mere puffing in light of no other evidence of prior illegal activity and no criminal history, the delivery of narcotics lacked any extensive planning, and only twenty days elapsed between contact with government agent and day of illegal transportation)

Acceptance of Responsibility

United States v. O'Kane, ___ 155 F.3d 969 ___ (8th Cir. 1998) (Reversing district court's grant of four level downward departure for exceptional acceptance of responsibility where defendant had provided full restitution, had immediately admitted his conduct to authorities, and had been continually cooperative throughout investigation; however, these acts were not enough to warrant extraordinary acceptance of responsibility where the Guidelines already took that factor into account and court had granted defendant two-level downward adjustment for acceptance of responsibility under § 3E1.1(a))

Charitable Activities - Community Service

United States v. Woods, ___ 159 F.3d 1132 ___ (8th Cir. 1998) (One level departure for charitable activities affirmed where defendant took two troubled young women into her home and paid for their private schooling and the women became productive members of society, and defendant had taken in elderly friend and helped him live out his life independently)

United States v. Wilke, ___ 156 F.3d 749 ___ (7th Cir. 1998) (On remand for another sentencing issue, district court could deny previously granted departure for community service if it decided that those actions which involved children's events were motivated by criminal intent and pedophilia where defendant convicted of child pornography charge)

United States v. Morken, ___ 133 F.3d 628 (8th Cir. 1998) (Reversing for abuse of discretion district court's departure for community service and employment related contributions to community where defendant's business failed in 1994 due to criminal activity, not in 1997 when he was sentenced, and defendant's charitable activities comported with typical community leader who earned large income and thus did not remove case from heartland)

Civil judgement

United States v. Pennington, ___F.3d___, 1999 U.S. App. LEXIS 1633 (8th Cir. February 5, 1999) (Upholding district court's denial of downward departure on basis that defendant had received six million dollar judgement against him in civil fraud case for same conduct as criminal case; civil judgement alone does not remove fraud case from the heartland)

Collateral Consequences

United States v. Leon, ___2 F. Supp. 2d 592___ (D. N.J. 1998) (Downward departure denied for exclusion from Medicare program based upon underlying plea agreement in Medicare fraud case, loss of right typical of offense, and defendant agreed to exclusion in plea agreement)

Combination of Factors

United States v. Pennington,___F.3d ___, 1999 U.S. App. LEXIS 1633 (8th Cir. February 5, 1999) (District court departure not plain error for a combination of factors including defendant's conduct less culpable than co-defendant, yet guideline range was same, defendant's health problems, and defendant's need to support his mother)

United States v. Jones, ___158 F.3d 492___ (10th Cir. 1998) (Affirming district court's grant of downward departure due to combination of eleven factors under § 5K2.0 and discussing validity of those factors:

(1) Conviction would have drastic collateral employment consequences because defendant lived in community where jobs are scarce which was an appropriate factor in this case;

(2) Economic hardship upon defendant's wife and children was not so extraordinary to be appropriate factor in this case;

(3) Aberrant conduct because defendant was thirty-five and had been "basically law abiding" before his marriage disintegrated was appropriate factor;

(4) Community service and (5) support in community were both appropriate factors where defendant offered twelve letters of his extensive community involvement;

(6) Lack of notice to defendant that he could not possess firearm because of restraining order against him was not appropriate factor in this case because defendant had taken gun to home of his estranged wife who had instituted restraining order;

(7) Early disclosure to authorities of defendant's false statement used to obtain firearm was appropriate factor because although authorities were likely to discover crime on their own, defendant's voluntary statement did not occur in connection with ongoing investigation and was not motivated by fear of discovery (§ 5K2.16);

(8) Adherence to conditions of release and (9) post-offense improvements in conduct are encouraged factors through acceptance of responsibility reduction, and if present to exceptional degree, can be used for further departure, which was appropriate here where defendant refrained from contact with his ex-wife, worked to support his three children, and had seen his psychologist daily resulting in changed attitude;

(10) Negative impact of incarceration on rehabilitative counseling was appropriate factor because defendant's employment at mental health facility afforded him daily contact with psychologist, removing case from heartland of mental and emotional conditions under § 5H1.3;

(11) Probation officer conducting pre-sentencing report concluded that downward departure was marginally appropriate factor, but not on par with other appropriate factors.

Based upon appropriate factors used, departure of three levels was not erroneous)

Unites States v. DeRoover, ___F Supp. 2d ___, 1999 U.S. Dist. LEXIS 1791 (E.D.N.Y. February 16, 1999) (Granted downward departure for factors including aberrant behavior (where defendant had never before committed a crime), rehabilitation, and family circumstances (defendant was physically and sexually abused as a child and had five children, 6 through 16, whom she solely supported); if defendant granted probation she would be allowed to serve it in her home country of the Netherlands)

United States v. Jackson, ___14 F. Supp. 2d 1315___ (N.D. Ga. 1998) (On habeas downward departure granted in light of Koon for combination of factors including seventy-six years of age, poor health which includes severe osteoarthritis in knees, hands, spine, and neck which prevents walking more than two blocks at a time, torn rotator cuff, enlarged prostate causing frequent urination, mental health difficulties including severe depression, additionally, defendant was active member of the Rotary Club, the Kiwanis, the YMCA, and the Lakewood Boys Club, created a scholarship for underprivileged children, and was chairman of the Georgia chapter of Marines Toys for Tots program)

Concurrent State Sentences

Werber v. United States, ___149 F.3d 172 ___(2nd Cir. 1998) (On § 2255 motion, downward departure granted by district court to create concurrent sentence with state sentence where underlying conduct was the same, reversed because at time of federal sentencing, state sentence had been vacated and defendant re-sentenced only to probation)

Criminal History

United States v. Perez, ___160 F.3d 87___ (1st Cir. 1998) ( en banc) (Even split, three judges on each side, on whether downward departure is available for minor role in prior drug offenses which comprise convictions for career offender status, First Circuit upheld district court's decision that departure was impermissible because nothing in this case takes it outside heartland even for those judges who believed departure was possible)

United States v. Robinson, ___158 F.3d 1291 ___(D.C. Cir. 1998), cert. denied 143 L. Ed. 2d 221 (1999) (After finding defendant's criminal history over represented the seriousness of the offenses, district court reduced defendant's criminal history from Category II (3 points) to Category I (0-1 points) and then applied the safety valve provision under § 5C1.2 (which allows at most 1 criminal history point), but D.C. Circuit reversed because court could not depart downward on criminal history to fit defendant into safety valve provision)

United States v. Tejeda, ___146 F.3d 84___ (2nd Cir. 1998) (Reversing grant of downward departure for over represented criminal history because three factors used by court were impermissible (lenient prior sentences of 90 days on two priors, lighter sentence of co-defendant, small quantity of drugs) and two other factors used by district court were not sufficient to remove case from heartland (defendant's stable family relationships and deportable status upon release from custody))

United States v. Webb, ___139 F.3d 1390 ___(11th Cir. 1998) (Reversing denial of downward departure because record was ambiguous as to whether district court believed that it could depart from imposition of career offender guideline, joining Second, Third, Eighth, Ninth, Tenth and D.C. Circuit in holding departure from career offender guidelines is available if priors over represent defendant's criminal history (§ 4B1.1. comment. (n.4))

United States v. Blarek, ___7 F. Supp. 2d 192 ___(E.D. N.Y. 1998),aff'd,,166 F.3d 1202, (2nd Cir. 1998) (Downward departure granted due to defendant's HIV infection especially because defendant's regimen of healthy eating and exercise has helped prevent onset of full blown AIDS for fifteen years; such measures are not available in federal prison, and the inmate's exposure to disease such as tuberculosis is high)

United States v. Gartner,___ 5 F. Supp. 2d 1060___ (D. Neb. 1998) (Downward departure from criminal history category V to IV granted because two prior California convictions were related in time, location, and type, and had authorities promptly arrested defendant after first crime, defendant would have been imprisoned and could not have committed second offense)

Cross Reference

United States v. McVeigh, ___ F.3d ___, 1999 U.S. App. LEXIS 3059 (10th Cir. February 26, 1999) (Affirming district court's refusal to depart downward based upon level defendant's "mental state," district court not required to make a specific finding as to what defendant's mental state was at the time of the offense)

United States v. Fenner, ___147 F.3d 360 ___(4th Cir.), cert. denied, 142 L. Ed. 2d 473 (1998) (Although district court mistakenly claimed it lacked authority to depart on the basis of the application of the cross reference to murder guideline (§ 2K2.1(c)(1)(B)), remand not required because any such departure on this unmentioned factor would be an abuse of discretion in this case. Further, downward departure not required on basis that defendant had twice been acquitted of murder used for cross reference)

Cultural Assimilation

United States v. Lipman,___ 133 F.3d 726___ (9th Cir. 1998) (Affirming denial of downward departure for cultural assimilation in this case, but holding that such assimilation may provide proper basis for departure if it removes case from heartland, for example illegal reentry case where defendant returned because of familial connections and assimilation rather than criminal related motive)

Cultural Differences

United States v. Tomono,___ 143 F.3d 1401 ___(11th Cir. 1998) (Reversing grant of downward departure on cultural differences because on this record such differences did not take the case out of the heartland; ignorance of United States laws on animal imports is common among foreign animal exporters and not an extraordinary factor, fact that turtles in question are not endangered in defendant's native Japan already accounted for in guidelines under enhancements for international trade in endangered species, and evidence that turtles occupy a unique position in Japanese culture came only from statements of defendant's attorney and such allegations are generally insufficient as basis for departure)

Deportation

United States v. Young, ___143 F.3d 740___ (2nd Cir. 1998) (Reversing district court's grant of downward departure given because defendants who stipulate to deportation in alien reentry cases typically receive one level departure recommendation from government in the jurisdiction, but defendant here had become naturalized and thus was not eligible for the one level departure; thus, in order not to penalize defendant for becoming naturalized, court granted departure; reversed because defendant's status as United States citizen is not proper basis for departure, and court improperly equated defendant with alien defendants with whom he was not similarly situated)

United States v. Marin-Castaneda, ___134 F.3d 551___ (3rd Cir.), cert. denied, 140 L. Ed. 2d 1103 (1998) (Affirming district court's denial of departure for defendant who offered to waive objections to deportation because defendant was not offering to waive any valid defense, and in light of judiciary's minor role in deportation, such departure requires motion from the government; further, Attorney General's ability to deport defendant before his sentence has expired provides no basis for departure)

Diminished Mental Capacity § 5K2.13 The introduction explains the November 1998 amendments change regarding the type of offense and define "significantly reduced mental capacity." The Carucci, Vitale and Askari cases below were decided after the amendments went into effect and Vitale applied the old requirements.

United States v. Vitale, ___159 F.3d 810___ (3rd Cir. 1998) (Defendant's compulsion to purchase antique clocks did not provide enough evidence for downward departure where defendant's scheme was extended and well planned and he only used money obtained illegally from federal employer to obtain clocks and not his personal funds)

United States v. Askari, ___159 F.3d 774___ (3rd Cir. 1998) ( en banc) (1998 clarifying amendment to § 5K2.13 changing requirement of offense from "non-violent offense" to requirement that offense did not "involve actual violence or a serious threat of violence" required remand to district court for further development of record)

United States v. Valdez, ___158 F.3d 1199___ (10th Cir.), cert. denied,(1998) (Bank robbery can never be considered a "non-violent offense" under § 5K2.13 and thus defendant was not eligible for this departure)

United States v. Miller, ___146 F.3d 1281___ (11th Cir. 1998), cert. denied 142 L. Ed. 2d 912 (1999) (Reversing district court's grant of a downward departure because impulse control disorder not out of heartland for child pornography defendants; defendant's claim that he obtained child pornography merely to trade for other adult pornography demonstrates he did not have impulse control disorder regarding child pornography; thus, mental disorder did not contribute to offense)

United States v. Valdez, ___146 F.3d 547___ (8th Cir.), cert. denied sub nom. Johnson v. United States, 142 L. Ed. 2d 293 (1998) (Affirming denial of departure because robbery was not considered non-violent even though only weapon involved was unloaded shotgun carried by co-defendant)

United States v. Clements, ___144 F.3d 981___ (6th Cir. 1998) (Affirming district court's denial of downward departure because defendant's conviction for extortion was "crime of violence" and thus could not be considered "non violent offense" required for the departure, further even if not categorically precluded, defendant's bomb threats to bank were not non-violent offenses)

United States v. Leandre,___ 132 F.3d 796___ (D.C. Cir.) cert. denied, 140 L. Ed. 2d 959 (1998) (Affirming district court's denial of downward departure because finding that defendant's mental infirmity did not contribute to criminal offense was not erroneous in light of simplistic nature of offense (selling drugs) and voluntary drug use which court found contributed to offense)

United States v. Carucci,___ 33 F. Supp. 2d 302___ (S.D.N.Y. 1999) (Refusing downward departure for diminished mental capacity based upon addiction to gambling because although defendant's illness might cause him to be unable to control his behavior in a gambling situation, it does not cause the same compulsion to commit crime of unlawful securities trading for which the defendant was convicted even if it was done to obtain money for gambling)

United States v. Woodworth,___ 5 F. Supp. 2d 644___ (N.D. Ind. 1998) (Downward departure granted where adjustment disorder, schizoid disorder, and social retardation contributed to extortion because defendant's perception of reality was substantially impaired; defendant quit job because he felt persecuted, he began blaming prior employer when unable to find comparable job, defendant elected to proceed to trial one year into eighteen month pre-trial diversion, and defendant has had stable job since therapy)

United States v. Ruff,___ 998 F. Supp. 1351___ (M.D. Ala. 1998) (Downward departure refused where, although defendant had mental illness of major recurrent depression, no showing that illness prevented defendant from understanding his actions or made him unable to control his behavior)

United States v. McBroom,___ 991 F. Supp. 445___ (D. N.J. 1998) (On remand after denial of downward departure was reversed by Third Circuit, district court granted departure in child pornography case because although court had found mental illness of impulse control disorder with obsessive compulsive traits had not affected defendant's cognitive ability, it did affect his volitional capacity, i.e. his ability to conform his behavior to the law)

United States v. Follett,___ 990 F. Supp. 1172___ (D. Neb. 1998) (Thirty month departure granted where defendant was convicted of accessory after the fact to bank robbery where she helped co-defendants escape and avoid apprehension, but did not commit acts which were violent or threaten violence; further, her bipolar disorder, repeated suicide attempts while growing up, and fact that she was no longer taking lithium medication at time of offense due to pregnancy, indicated that mental illness contributed to offense)

Disparity with Co-defendant's Sentences

United States v. Jones,___ 160 F.3d 473___ (8th Cir. 1998) (District court not authorized to depart downward for disparity of sentences among co-defendants)

United States v. Krilich,___ 159 F.3d 1020___ (7th Cir. 1998) (District court not authorized to depart downward for disparity of sentences among co-defendants)

United States v. Crouse,___ 145 F.3d 786___ (6th Cir. 1998) (Although disparity of co-defendant's sentence can form the basis of a departure by lowering a defendant's sentence to match co-defendant's, such departure was abuse of discretion here because court lowered defendant's sentence below that of co-defendants to represent his comparatively minor role in crime)

United States v. Willis,___ 139 F.3d 811___ (11th Cir. 1998) (Disparity of co-defendant's state sentence for similar conduct cannot be basis for downward departure)

Disparity of State Sentence

United States v. Schulte,___ 144 F.3d 1107___ (7th Cir. 1998) (Disparity between federal sentence under Guidelines and what state sentence would have been for same conduct can never remove case from heartland)

United States v. Snyder,___ 136 F.3d 65___ (1st Cir. 1998) (Disparity between federal sentence and possible state sentence for same conduct cannot be basis for downward departure, joining Second, Eighth, Ninth, Eleventh, and D.C. Circuits)

United States v. Searcy,___ 132 F.3d 1421___ (11th Cir. 1998) (Disparity between federal sentence and potential state sentence cannot justify downward departure)

Drug Abuse

United States v. Payton,___ 159 F.3d 49___ (2nd Cir. 1998) (Reversing grant of downward departure because history of drug abuse and failed treatment cannot be factor in combination with other factors meriting departure)

United States v. Webb,___ 134 F.3d 403___ (D.C. Cir. 1998) (Reversing grant of downward departure granted based upon district court's belief that "the crime here is addiction;" however, drug dependence can never be basis for downward departure)

Drugs

United States v. Green,___ 152 F.3d 1202___ (9th Cir. 1998) (Downward departure for California state law's more lenient view of marijuana, while not forbidden factor, was not appropriate in this case)

United States v. Rodriguez-Ochoa, ___ F.3d,___ 1999 U.S. App. LEXIS 2801 (8th Cir., February 24, 1999) (Affirming district court's denial of downward departure where defendants argued that they thought they were transporting marijuana and not methamphetamine which carried a higher guideline level; denial affirmed because district court could not depart as Guidelines already take mistakes of fact into account)

Duress

United States v. Delgado,___ 994 F. Supp. 143___ (E.D. N.Y. 1998) (Downward departure granted in part because defendant in debt to Colombian credit company was coerced to flying to United States while carrying suitcase filled with heroin that the company forced her to take)

Extent of Departure

United States v. Hargrett,___ 156 F.3d 447___ (2nd Cir.), cert. denied, 142 L. Ed. 2d 547 (1998) (Simple failure to explain reasoning behind extent of downward departure is unreviewable on appeal)

United States v. Carouse,___ 145 F.3d 786 ___(6th Cir. 1998) (Nine level departure was abuse of discretion when based upon community involvement alone where district court had used improper factors of proportionality with co-defendant's sentences, loss of reputation and business in small community, and defendant's good behavior during four years of appeals and remands; case remanded for a lesser departure)

United States v. Coppedge,___ 135 F.3d 598___ (8th Cir. 1998) (Extent of downward departure not reviewable on appeal)

Family Circumstances

United States v. Owens,___ 145 F.3d 923___ (7th Cir. 1998) (Affirming district court's grant of downward departure for family circumstances where defendant had common law wife for thirteen years with whom he had three children, lived on public assistance for seven years, did not live in public housing, defendant's wife had been a cashier in a grocery store for six years, defendant had been employed by an upholstery company for last year, defendant cared for his children after school and helped them with their homework due to flexible work schedule, and defendant spent time every day with his brother suffering from Downs Syndrome)

United States v. Sprei,___ 145 F.3d 528___ (2nd Cir. 1998) (Reversing district court's downward departure based on reduced marriage prospects for defendant's three children in orthodox Jewish community because incarceration prevented defendant from arranging marriages; this fact did not remove case from heartland because stigma on children of father's incarceration is typical and factor is discouraged by guidelines; further, any special role of father in community marriage arrangement cannot be basis for departure because it relies in part upon the forbidden factor of gender)

United States v. Leandre,___ 132 F.3d 796___ (D.C. Cir.), cert. denied, 140 L. Ed. 2d 959(1998) (Affirming district court's denial of departure based on fact that defendant's children would likely end up in foster care if brother did not take them, situation did not remove case from heartland)

United States v. Olaniyan, ___ F. Supp. 2d___, 1999 U.S. Dist. LEXIS 405 (E.D.N.Y. January 15, 1999) (Because many drug couriers arrested at Kennedy Airport, such as defendant, are held together and hear that family circumstances can provide a basis for downward departure in the Eastern District of New York, they have the opportunity to fabricate dire family circumstances, and because defendant in this case evolved his terrible family history to become worse and worse, yet provided scant documentation and actually lied about certain events, downward departure for family circumstances denied and in fact two level upward adjustment for obstruction of justice imposed pursuant to §3C1.1)

United States v. Lopez,___ 28 F. Supp. 2d 953,___ (E.D. Pa. November 12, 1998) (Six level downward departure justified where mother of five children had them placed in foster care upon arrest, one seven year old child attempted suicide in response to foster care, social services caseworker stated that if given full sentence she would seek termination of parental rights, and defendant had minor role in offense compared to her long-time partner against whom she had obtained a protective order three weeks prior to arrest)

United States v. Gamez,___ 1 F. Supp. 2d 176___ (E.D. N.Y. 1998) (Downward departure granted to two defendants: first defendant married twenty-nine years with three children two of which live at home and a third he supports going to college, wife not a native of United States wept in court explaining how she recently lost her job and without defendant at home will fall behind on mortgage payments, and will "have difficulty controlling and maintaining" home finances and teenage son; second, defendant married for thirty years with two children, one of whom lives in family home, daughter clung to defendant at sentencing sobbing, wife has difficulty speaking English and only works two days per month as banquet hostess, wife also has medical conditions including narrowing of intervertebral neural canal, asthma, hypothyroidism, severe diabetes, a nervous condition, and back problems requiring continuing rehabilitative therapy, and defendant must assist wife in taking medication due to her poor vision. Court described defendants as having "unique bond with kin")

Forfeiture

United States v. Faulks,___ 143 F.3d 133___ (3rd Cir. 1998) (Reversing district court's denial of downward departure for voluntarily deciding to not contest forfeiture, although mere payment of what is due cannot form basis for departure; waiver of meritorious defense can demonstrate extraordinary contrition and defendant will be allowed to make such showing on remand)

United States v. Shalash, ___ F. Supp 2d ___, 1999 U.S. Dist. LEXIS 1688 (S.D. Ohio, February 17, 1999) (Agreeing with the Third, Fourth, Seventh, Ninth and Tenth Circuits which have ruled on the issue, holding that because the guidelines already take forfeiture into account, it cannot form the basis for a departure)

Government Misconduct

United States v. Parker, ___158 F.3d 1312___(D.C. Cir. 1998) (Over deployment by law enforcement's use of two SWAT teams to arrest defendant where he suffered serious injuries could be basis for departure, but not in this case because no showing that SWAT teams caused defendant's injuries)

United States v. Nolan-Cooper, ___155 F.3d 221___ (3rd Cir. 1998) (Reversing district court's denial of downward departure for government misconduct where during the course of thirteen month investigation, undercover agent developed a social relationship with the defendant which resulted in sex on one occasion; district court erroneously decided it could not depart on the grounds of improper investigatory technique, when in fact, it could have)

United States v. Santoyo, ___146 F.3d 519___ (7th Cir. 1998), cert. denied 143 L. Ed. 2d 87 (1999) (Affirming district court's denial of downward departure under § 5K2.0 where defendant merely alleged government agents "cajoled" him into introducing them to drug suppliers which lead to instant charge; such allegations were not sufficient to remove case from heartland)

Illegal Reentry

United States v. Sanchez-Rodriguez, ___161 F.3d 556___ (9th Cir. 1998) ( en banc) (Minor prior felony drug sale of $20 of heroin which counted as aggravated felony and thus raised base offense level sixteen levels on illegal reentry charge could form basis of downward departure)

United States v. Diaz-Diaz,___ 135 F.3d 572___ (8th Cir. 1998) (Affirming district court's grant of downward departure because sixteen level increase for aggravated felony under illegal reentry statute overstated prior conviction which was fifth degree sale of controlled substance)

United States v. Contreras-Gomez,___ 991 F. Supp. 1242___ (E.D. Wash. 1998) (Downward departure granted after sixteen level enhancement for aggravated felony produced sentence over twice as high as any other alien reentry case district court had ever seen; government could offer no explanation why it had fully charged defendant as opposed to at least eleven other cases where government had reduced charges to alien felon and in prior cases government had stated on record that the aggravated felon charge resulted in too high guideline range)

Imperfect Entrapment § 5K2.12

United States v. Martinez-Villegas, ___993 F. Supp. 766___ (C.D. Cal. 1998) (Downward departure granted for aggressive encouragement of crime where drug enforcement agent posed as big time Latin drug lord who would not deal with low amounts or novices, although defendants had history of 5 to 10 kilogram deals, government pressured defendants into 92 kilogram deal, government controlled most aspects of negotiations, and government agent told one defendant a co-defendant had to help him transport the cocaine because the initial defendant was not a truck driver)

Independent Counsel

United States v. Hemmingson, ___157 F.3d 347 ___(5th Cir. 1998) (Prosecution initiated by independent counsel can never serve as basis for downward departure because they are no different from United States Attorney)

Ineffective Assistance of Counsel

United States v. Martinez,___ 136 F.3d 972___ (4th Cir.), cert. denied, 142 L. Ed. 2d 98 (1998) (Affirming district court's denial of downward departure for counsel's ineffective advice to defendant who claims he plead guilty upon advice that sentence would be 170 months as opposed to actual exposure of 270 months, because such considerations as ineffective assistance of counsel are inconsistent with the structure and theory of Guidelines)

Interlocutory Appeal

United States v. Reed,___ 167 F.3d 984 ___(6th Cir. 1999) (Reversing district court's downward departure based in part on the cost and toll of delay in case due to interlocutory appeal, no evidence that amount of delay was unusual, and trial court had completely waived fine of $17,500 to $500,000)

Lack of Youthful Guidance

United States v. Payton,___ 159 F.3d 49 ___(2nd Cir. 1998) (Lack of positive male role model could not be considered alone or as factor in combination with others to justify downward departure)

Lesser Harms

United States v. Stevens,___ 29 F. Supp. 2d 592 ___(D. Alaska 1998) (Downward departure granted for child pornography conviction based upon "passive" receipt of 400 images of child pornography over Internet because Guidelines do not distinguish between those who merely possess and those who produce and distribute as well, no evidence defendant ever even thought of molesting children, defendant never worked with any child based community groups, no evidence defendant ever sent any illegal picture to anyone else or ever conversed with others online to encourage such activity, defendant did not know any of the children in the pictures, and most pictures found likely produced before 1977 and thus new victims were not directly created by crime)

United States v. Gartner, ___5 F. Supp. 2d 1060___ (D. Neb. 1998) (Downward departure denied on possession of machine gun charge because although defendant argued he only possessed guns as a collector and not for evil purpose, such factor is discouraged and does not remove case from heartland)

United States v. Grewal,___ 2 F. Supp. 2d 612 ___(D. N.J. 1998) (Downward departure denied where defendant claimed to be extorting money from victim with threats of revealing victim's involvement in killing his business partner in order to bring victim to justice, but defendant deposited extorted money into private bank account instead of turning it over to authorities as evidence of guilt and defendant could have approached authorities with her beliefs)

Lesser Included Offense

United States v. Welbeck, ___145 F.3d 493___ (2nd Cir.), cert. denied, 142 L. Ed. 2d 174 (1998) (Affirming district court's denial of downward departure despite Probation Department's recommendation for departure where defendant was convicted of lesser included offense of possession and not of distribution charge; but guidelines yielded same sentence for each offense, thus defendant argued he should have been sentenced to lesser incarceration for being convicted of lesser offense)

Loss

United States v. Krilich,___ 159 F.3d 1020___ (7th Cir. 1998) (Reversal of seven level departure because of former application note 7(b) (now 8(b)) to § 2F1.1 which provides for departure if seriousness of offense does not match level of loss, because district court used formula of adding loss and defendant's gain and dividing by two to determine what it thought proper loss level on § 2F1.1's table should be and that process ignored actual tax loss from providing investors with illegal tax shield; thus, lesser departure with clearer calculation should be made at re-sentencing)

United States v. Stockheimer,___ 157 F.3d 1082___ (7th Cir. 1998), cert. denied 143 L. Ed. 2d 121 (1999) (Plain error where district court denied downward departure for Guidelines overstatement of loss based upon its erroneous reading of case which did not preclude departure, but rather held that overstatement of loss was not appropriate for initial offense level calculation but was appropriate for downward departure)

United States v. Bunano,___ 146 F.3d 502___ (7th Cir 1998) (Recognizing downward departure based on low probability of success of fraud scheme pursuant to § 2F1.1, comment (n.10) but noting that departure did not apply in this case because the fraud did in fact victimize people of over $600,000)

United States v. Costello,___ 16 F. Supp. 2d 36___ (D. Mass. 1998) (Downward departure for overstated loss where court found loss at $20 million dollars, but defendants' gain was only $116,000)

Mandatory Minimum

United States v. Harris,___ 154 F.3d 1082___ (9th Cir. 1998) (District court does not have discretion to downward depart below mandatory minimum sentence imposed by Congress, although Ninth Circuit made plea for legislation to create more flexibility)

Minor Role in Current Offense

United States v. Sewell, ___159 F.3d 275___ (7th Cir. 1998), cert. denied 143 L. Ed. 2d 90 (1999) (If court chooses not to grant a two level reduction for minor participant (§ 3B1.2), it is "inappropriate" to rely upon § 5H1.7 for downward departure for minor role in the offense)

Money Laundering

United States v. Reed, ___167 F.3d 984 ___(6th Cir. 1999) (Reversing district court's nine level downward departure based on finding that defendant's conduct was not typical money laundering (having secretary hold money for client-drug dealer for another person to pick up); remanding for more specific findings as to whether this activity was outside heartland)

United States v. Woods,___ 159 F.3d 1132___ (8th Cir. 1998) (Affirming departure from money laundering conviction where offense involved cashing stocks not revealed to bankruptcy trustee because offense was not typical type of money laundering offense statute was designed to combat)

United States v. Hemmingson,___ 157 F.3d 347___ (5th Cir. 1998) (Affirming departure from money laundering conviction where the offense involved small attempt ($20,000) to cover debts from failed political campaign, not large profits from drug or other illegal criminal organization, and Department of Justice manual suggested crimes of this type should be charged as misdemeanors and not felonies under money laundering statute)

United States v. Blarek,___ 7 F. Supp. 2d___ 192 (E.D. N.Y. 1998) aff'd., 166 F.3d 1202 (1998) (Downward departure granted because atypical money laundering case where defendants were artists not motivated by greed but rather by "excessive artistic pride" and desire to obtain unlimited funds for their art)

United States v. Gamez, ___1 F. Supp. 2d 176 ___(E.D. N.Y. 1998) (Downward departure granted in money laundering conviction because crime not typical of harm statute sought to prevent where, although defendants took Colombian drug money and used it to purchase cars for dealers, defendants shopped for lowest prices, worked and charged fees as for any other client, and only received $5,250 in fees for months of work)

Physical Disability § 5H1.4

United States v. Garcia,___ 166 F.3d 519 ___(2nd Cir. 1999) (Refusing to reverse district court's failure to grant downward departure for defendant's medical conditions where, although defendant argued trial court failed to make individualized facility determination that Bureau of Prisons could accommodate her particular medical conditions, even if true, defendant waived right of appeal in plea agreement and waiver was not, as defendant claimed, a lack of "due process")

United States v. Russell,___ 156 F.3d 687___ (6th Cir. 1998) (Deafness alone can never be sufficient to downward depart because it is not "extraordinary" and Bureau of Prisons will place defendant in facility that takes disability into account)

United States v. Hammond, ___ F. Supp. 2d ___, 1999 U.S. Dist. LEXIS 1833 (E.D.N.Y. February 19, 1999) (Granting seven level downward departure due to defendant's HIV status because it is likely that due to illness most of defendant's time incarcerated would be spent in restricted confinement, much more onerous a situation than most defendants, and because of higher likelihood of contracting a life threatening disease)

Physical Ordeal

United States v. Marin-Castaneda,___ 134 F.3d 551___ (3rd Cir.), cert. denied, 140 L. Ed. 2d 1103 (1998) (Affirming district court's denial of departure for hospitalization of defendant during heroin smuggling due to ingestion of ninety pellets of heroin; dangers inherent in drug smuggling place this case within the heartland)

Plea Agreement (not Substantial Assistance related)

United States v. Brye,___ 146 F.3d 1207___ (10th Cir. 1998) (Reversing denial of downward departure because government breached plea bargain when it opposed defendant's departure motion and plea agreement stated that for motions made under § 5K2.0 et seq., the "government will defer to the Court's determination;" court held that language covered any departure motion under § 5K2.'s bases)