U.S. v. Lauzon, No. 90-1661

• Citation: 938 F.2d 326
• Decision Date: 01 April 1991
• Docket Number: No. 90-1661
• Parties: UNITED STATES, Appellee, v. Michael Neal LAUZON, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 326

938 F.2d 326

UNITED STATES, Appellee, v. Michael Neal LAUZON, Defendant, Appellant.

No. 90-1661.

United States Court of Appeals, First Circuit.

Heard April 1, 1991.

Decided July 16, 1991.

Laurie Ann Miller with whom Ferris, Dearborn & Willey, were on brief, Brewer, Me., for defendant, appellant.

Margaret D. McGaughey, Asst. U.S. Atty., with whom F. Mark Terison, Asst. U.S. Atty., Portland, Me., and Richard S. Cohen, U.S. Atty., were on brief, Augusta, Me., for appellee.

Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and TORRUELLA, Circuit Judge.

BOWNES, Senior Circuit Judge.

Michael Neal Lauzon appeals the sentence imposed upon him following his guilty plea to two counts of distributing LSD and one count of distributing psilocin in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(C). Lauzon received a 63-month sentence, the minimum sentence available within the guideline sentencing range. The main issue on appeal is whether the sentencing judge understood that he had authority to depart downward under U.S.S.G. Sec. 5K2.13, which provides:

If the defendant committed a non-violent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants, a lower sentence may be warranted to reflect the extent to which reduced mental capacity contributed to the commission of the offense, provided that the defendant's criminal history does not indicate a need for incarceration to protect the public.

U.S.S.G. Sec. 5K2.13, p.s.

I.

Lauzon was twenty years old when he was arrested as a result of an investigation conducted by the Bureau of Intergovernmental Drug Enforcement (BIDE). BIDE was investigating a loosely-related group of ten to twelve young men whom it believed had been following the Grateful Dead band across the country, supporting themselves and their use of drugs through the distribution of illegal narcotics, particularly LSD. Two agents and a confidential informant arranged five drug transactions with Lauzon. These transactions resulted in a five-count indictment being returned against him.

Lauzon entered into a plea agreement with the government under which he pled guilty to three of the five counts. He was sentenced under the Sentencing Reform Act of 1984. 18 U.S.C. Sec. 3551, et seq.

The LSD was sold in blotter paper that had been impregnated with LSD. The probation department included the weight of the blotter paper in its calculation of the weight of the LSD; this approach was adopted by the district court. ¹ Using this method of computation, it was calculated that Lauzon sold a total of 1.68 grams of LSD, which corresponds to 168 grams of heroin under the drug equivalency table found at U.S.S.G. Sec. 2D1.1. Lauzon also sold 33 grams of mushrooms containing psilocin, which translates to .033 grams of heroin under the drug equivalency table. The total amount of drugs corresponds to a base offense level of 26 under the drug quantity table U.S.S.G. Sec. 2D1.1(c)(9). Lauzon received a two-level downward adjustment for acceptance of responsibility, U.S.S.G. Sec. 3E1.1, establishing a total offense level of 24. As Lauzon had no prior criminal record for guidelines purposes, he fell within criminal history category I. Application of the total offense level to the criminal history category resulted in a Guideline Sentencing Range (GSR) of 63 to 78 months.

The presentence investigation report (PSI) notes that testing during Lauzon's elementary school years showed that he had "a significant central auditory processing problem that led to a learning disability. This was apparently confounded [sic] by Michael's general intelligence tests at a borderline level in the 65 to 75 range. An evaluation of the defendant performed at counsel's request in December 1989 confirms earlier testing of intellectual level...." The PSI states that Lauzon appeared to "present the fact set which suggested policy statement 5K2.13," specifically that "[t]he defendant's borderline intelligence, which limits his ability to distinguish peers' motivation and makes him peculiarly vulnerable to following others' activities without discerning their intent, renders him a 'follower,' limiting his capacity to avoid difficulties."

At the sentencing hearing the defendant introduced the report of Dr. Frank A. Wood, a clinical psychologist, who had performed a competency evaluation of Lauzon pursuant to an order of the magistrate. This evaluation had been performed to determine whether Lauzon was competent to stand trial and whether his mental condition affected his criminal responsibility. Dr. Wood's report indicated that the defendant tested between the retarded and the borderline category of intelligence, but noted that "[b]ecause of his functioning, [Dr. Wood] would strongly expect the defendant to be of borderline intelligence." Dr. Wood also found that Lauzon understood the difference between right and wrong and that there was no indication "that the defendant had any particular mental problems at the time" that he committed the offense.

In a letter to defendant's counsel, which was also admitted at the hearing, Dr. Wood indicated that Lauzon had "obtained an Age Equivalent of 11 years, 4 months and a Standard Score (IQ) of 68" on the Peabody Picture Vocabulary Test--Revised (Form L). Based on the "confidence band" for the test, Dr. Wood estimated that Lauzon's IQ fell within a range of 66-80, with 70 being the break between mildly retarded and borderline intelligence. Dr. Wood reiterated that he felt, based on talking with Lauzon, "that he more likely falls in the borderline range of intelligence...." Dr. Wood said that the defendant was an "easy sell" and that he "could easily be coerced or convinced to participate in an unwise activity."

William Tanner, who identified himself as "the director of the Community Correctional Service program, a seven-county consortium of sheriff's offices, federally funded under the Drug Enforcement Bill, to provide substance abuse and other services to probation and parole clients," addressed the court informally. Tanner and his staff had been working with Lauzon for about eight months. Like Dr. Wood, Tanner observed that Lauzon "has difficulty acting independently" and "is very easily persuaded." He stated that Lauzon relied so heavily on his family that "it became almost impossible for Michael to make decisions on his own."

Tanner said that Lauzon was faithfully participating in his treatment program, benefitting from it, and showing much improvement. He also stated that he had "serious concerns for Michael if incarcerated." Because of Lauzon's diminished capacity to understand, Tanner felt that Lauzon would be victimized within the penal system. Tanner said that he had a "structured day-treatment type program" available that would accept Lauzon immediately, and that he was willing to work with the probation officer to implement a program for him.

The defendant's mother also addressed the court. She said that Michael had been involved in an automobile accident when he was sixteen months old and that he had been diagnosed improperly.

He was only diagnosed as having a speech and hearing impediment; but we now know that his problems were much deeper than that. And throughout the years, we noticed that he did not develop like my other children.

He always had a hard time in school. He was very withdrawn, depended on everyone else to do everything for him. And all I want to say is that I'm very angry for what's happened to my boy. What other people have done to him knowing his child-like and simple ways. They used him.

* * * * * *

He knows right from wrong. Even an 11-year old child knows right from wrong. But I think he was led by these other people who were in with this drug problem.

The court next heard argument from counsel. Defendant's counsel argued that a departure from the GSR was warranted not only because the defendant's diminished mental capacity contributed to the commission of the offense, but also because it would lead to victimization of the defendant in prison.

While recognizing that "a 63 month sentence is admittedly a harsh sentence for a person such as Michael Lauzon," and that "Michael Lauzon is an appropriate person for leniency," the government argued that Lauzon was not an atypical defendant and that the guidelines required sentencing within the GSR. The government conceded that Lauzon's mental condition should be considered in determining the sentence within the guideline sentencing range and recommended the lowest possible sentence within the guidelines.

The court, after taking an extra day to consider the issue fully and study the materials submitted, held that it had "no defensible basis to depart from these guidelines" and sentenced the defendant to 63 months, the minimum sentence within the guideline range.

II.

The defendant argues that the sentencing judge committed error by refusing to invoke Sec. 5K2.13 as a basis for departing downwards from the sentencing guideline.

The government claims that we lack jurisdiction to review the sentencing court's decision not to depart. Its position is based upon the well-accepted rule that unless the decision involves an incorrect application of the Guidelines or is otherwise in violation of the law, a district court's discretionary refusal to depart downward is not appealable. See United States v. Jiminez-Otero, 898 F.2d 813, 815 (1st Cir.1990); United States v. Tucker, 892 F.2d 8, 11 (1st Cir.1989). Where, however, a district court fails to depart because it feels that it is not authorized to do so, its decision is not an exercise of discretion, but an interpretation of law. We exercise plenary review over the district courts' interpretations of law. United States v. Aguilar-Pena, 887 F.2d 347, 350 (1st Cir.1989); United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 177, 107 L.Ed.2d 133...