89 F.3d 368 (7th Cir. 1996), 95-3790, United States v. Pullen

Docket Nº:95-3790.
Citation:89 F.3d 368
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Doss E. PULLEN, Defendant-Appellant.
Case Date:July 10, 1996
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 368

89 F.3d 368 (7th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee,


Doss E. PULLEN, Defendant-Appellant.

No. 95-3790.

United States Court of Appeals, Seventh Circuit

July 10, 1996

Argued May 22, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Aug. 16, 1996.

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Barry Rand Elden, Chief of Appeals, Jerome Krulewitch (argued), Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, for Plaintiff-Appellee.

Richard H. McLeese (argued), Decker & Associates, Chicago, IL, for Defendant-Appellant.

Before POSNER, Chief Judge, and KANNE and EVANS, Circuit Judges.

POSNER, Chief Judge.

The defendant pleaded guilty to armed robbery of a federally insured credit union and was sentenced to 188 months in prison. The appeal, which challenges primarily the judge's refusal to grant him a downward departure from his sentence on the basis of his having been sexually and otherwise abused as a small child, and later as an adolescent, by his father, presents difficult and fundamental questions in the wake of Koon v. United States, --- U.S. ----, 116 S.Ct. 2035, --- L.Ed.2d ----(1996).

The defendant's father was a drunkard and a gambler. He beat his wife and children and threatened them with guns and knives. When the defendant was five years old, his father abused him sexually over a period of several months. His parents divorced and the defendant lived with his mother, but when he was 15, and drinking, smoking marijuana, and having scrapes with the law, his mother could no longer control him and the juvenile court sent him to live with his father. The two would go out drinking together and once after a bout of drinking his father raped him. He ran away. His troubles with the law escalated. At the age of nineteen he committed his first bank robbery. He committed his second at the age of twenty-three. A year after he was released from prison, where he was serving a sentence for the second robbery, he robbed the credit union. A psychologist evaluated the defendant and concluded that as a result of the history of abuse that we have sketched the defendant "has a need to punish himself, hence his illegal acts and the relative ease with which he is caught." The psychologist also found that the defendant suffers from "schizoid disorder" and "borderline personality disorder," and that these conditions, too, are both "clinically linked to the history of abusive treatment by his father" and causative

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of his criminal activity because they "reduce impulse and behavioral controls" and impair "his ability to think and act clearly." The district judge concluded that he lacked authority to base a downward departure on the history and evaluation that we have summarized.

The Sentencing Reform Act authorizes sentencing below the guidelines if the judge finds a "mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." 18 U.S.C. § 3553(b). When the appeal in this case was argued, the parties and we assumed that a departure from the guidelines range, in order to be allowable, must be consistent with the statutory sentencing goals, which are deterrence, incapacitation, retribution, and correction. 18 U.S.C. § 3553(a)(2). The Supreme Court has since rejected this limitation on sentencing discretion. Koon v. United States, supra, --- U.S. at ---- - ----, 116 S.Ct. at ---- - ----. But we take it that consistency with one or more of those goals remains a reason in favor of a departure, and let us...

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