U.S. v. Brand, 89-5213
| Decision Date | 21 June 1990 |
| Docket Number | No. 89-5213,89-5213 |
| Citation | 907 F.2d 31 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Bobbi L. BRAND, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
David E. Godwin, Asst. U.S. Atty., Clarksburg, W.Va. (William A. Kolibash, U.S. Atty., Robert H. McWilliams, Asst. U.S. Atty., Wheeling, W. Va., on brief), for plaintiff-appellant.
George F. Fordham, Clarksburg, W. Va., for defendant-appellee.
Before WIDENER and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.
The government appeals the sentence imposed on Bobbi L. Brand, contending that the district court erred in departing downward from the applicable sentencing guidelines range. We vacate the sentence imposed and remand for resentencing in a manner not inconsistent with this opinion.
Bobbi L. Brand pleaded guilty to a one-count indictment that charged her with distributing two grams of cocaine in violation of 21 U.S.C. Sec. 841(a)(1). Because the offense was committed after November 1, 1987, Mrs. Brand's sentence was governed by the Sentencing Reform Act of 1984, 18 U.S.C. Secs. 3551 et seq., and the sentencing guidelines promulgated by the United States Sentencing Commission. All parties agree that the applicable sentencing guidelines range for Mrs. Brand's offense is 10 to 16 months' incarceration. 1
At the sentencing hearing, the court focused on Mrs. Brand's two children, ages seven and one and one-half. She noted that she was in the process of separating from her second husband, with whom, according to the pre-sentence report, she was engaged in a bitter custody battle. Fully expecting to go to jail, Mrs. Brand stated that the older child was going to live with her foster parents in Pennsylvania and the younger one would live with her mother-in-law because neither of the proposed custodians could care for both children. Pursuant to the plea agreement, the government recommended the minimum sentence under the guidelines range, 10 months. 2
After recognizing that the guidelines provide that "[f]amily ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the guidelines," U.S.S.G. Sec. 5H1.6, the court noted that "what you tell us here this morning is that in effect, strangers will be taking your two children." The court went on to recount the unfortunate circumstances that Mrs. Brand had endured during her "most impressionable years," including a teenage pregnancy that caused her to drop out of school and lack of proper parental guidance, and commended Mrs. Brand for attempting to stay gainfully employed and for trying to be a good mother. Finally, the court determined that "[t]he carrying forward of the guideline range of imprisonment ... would have a devastating impact upon the emotions, mind and the physical well being, just every aspect, of two very innocent youngsters to be separated from you." The court then departed downward and sentenced Mrs. Brand to five years' probation and a $50.00 special assessment. 3
Under the sentencing guidelines, a court must impose a sentence within the 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. Sec. 3553(b). The district court properly recognized that, because section 5H1.6 of the guidelines contains the qualifying word "ordinarily," the guidelines leave open the possibility of a downward departure based on family responsibilities in extraordinary circumstances. See United States v. Gonzalez, No. S 88 CR. 559, 2 Fed.Sent.R. 81 (S.D.N.Y. July 27, 1989) (departing from guidelines where father was in prison and imprisonment of mother would place minor children at hazard). The sole question we consider, therefore, is whether Mrs. Brand's family responsibilities were extraordinary.
We evaluate the district court's departure under a standard of reasonableness, 18 U.S.C. Secs. 3742(e)(3), 3742(f)(2), which we have determined may vary, depending on the specific part of the decision to depart that we address. For fact finding in the ascertainment of conditions which may exist to justify a departure, the clearly erroneous standard applies. See United States v. Summers, 893 F.2d 63, 66-67...
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