U.S. v. Martinez

• Decision Date: 28 November 2001
• Docket Number: No. 00-50436,00-50436
• Citation: 274 F.3d 897
• Parties: (5th Cir. 2001) United States of America, Plaintiff-Appellee, v. Cynthia L. Martinez, also known as Cynthia Lyda, also known as Cynthia Lynn Hedum, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 897

274 F.3d 897 (5th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Cynthia L. Martinez, also known as Cynthia Lyda, also known as Cynthia Lynn Hedum, Defendant-Appellant.

No. 00-50436

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

November 28, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Appeal from the United States District Court for the Western District of Texas

Before Jones, Smith and DeMoss, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Cynthia Lyda, formerly Cynthia Martinez, appeals a sentence of thirty-two years' imprisonment under the Assimilative Crimes Act, 18 U.S.C. § 13 ("ACA"), which requires the district court to impose a punishment "like" the ten-year maximum imposed under Texas's concurrent sentencing requirements.¹ We agree that, under the facts of this case, a federal sentence more than three times the length of the sentence Lyda would have received under state law is not "like" the state punishment. We vacate the judgment of sentence and remand for resentencing to a term of no greater than ten years.

I.

Lyda suffers from a psychiatric disorder known as Munchausen's Syndrome by Proxy, as a consequence of which she has induced or aggravated serious medical conditions in three of her children--Aaron, Daniel, and Joseph. This abuse caused Aaron's death, Daniel's catastrophic brain damage, and Joseph's hospitalization.

On the recommendation of Joseph's treating physicians, the FBI began videotape surveillance of Joseph's hospital room. Those tapes revealed Lyda's mistreatment of Joseph, which led to this indictment, plea, and sentence.

The sentencing court considered Lyda's abuse of all three children when departing upward for Lyda's criminal history and extreme conduct. Aaron, Daniel, and Joseph had a common pattern of development:

Aaron was born prematurely in 1988. As he grew older, Lyda reported an increasing number of apnea and seizure episodes. Aaron lost weight and suffered from chronic vomiting and diarrhea; doctors surgically inserted a gastric tube to feed him. After extensive testing, doctors were unable to reach a definitive diagnosis, although they considered various mitochondrial disorders; the hospital released Aaron. In March 1990, Lyda called her husband, David Martinez, at work and reported that Aaron had stopped breathing. When Martinez arrived, Aaron lay flat on his back, wearing only a diaper, and Lyda sat crying by his body. Martinez began CPR, but the doctors reported that Aaron was brain dead, and the parents ultimately decided to turn off the ventilator and allow him to die.

After the parents' divorce in 1995, Martinez learned that Lyda had purchased several bottles of Ipecac, which induces vomiting. After exhuming Aaron's body, a forensic toxicologist analyzed Aaron's hair and found proof of Ipecac poisoning. The treating physician, Dr. Saunder M. Bernes, testified that he believed Aaron's death was a homicide, and the large fluctuations in his physical health were more consistent with poisoning than with a degenerative disease.

After Daniel's premature birth, he experienced a similar pattern of health problems: mild developmental delay, seizures, apnea, vomiting, feeding intolerance, and gastrointestinal bleeding. Doctors were unable to isolate the cause of these symptoms. The treating physicians responded, progressively, by inserting an NG tube into the stomach, wrapping the top of the stomach to keep food from coming out (fundoduplication), and eventually performing a tracheostomy and a colonoscopy. During Daniel's final hospitalization in August of 1993, Lyda was the only other person in the room during his cardiac arrest. She failed to alert medical personnel until Daniel had reached an advanced stage of cardiac arrest. The arrest reduced him to a vegetative state, and he currently functions at the level of a one- or two-month-old.

Lyda gave birth to Joseph seven months after Daniel's cardiac arrest. After Joseph's premature birth, he failed to gain weight, despite clinical tests showing that he ingested food normally. The failure to gain weight persisted until he reached the age of five and one-half months, when his treating physicians hospitalized him. Over the course of several months, doctors failed to diagnose his illness, and the government's expert ruled out a mitochondrial disorder (although a defense expert testified that all three children suffered from a mitochondrial disorder).

The surgeons performed a gastrostomy, a fundodoplication, and a tracheostomy and inserted a central line. Joseph had difficulty receiving nutrition through the tube, however, because his stomach bloated at night. In mid-November, he suffered from "polymicrobial sepsis," or the presence of mixed numbers of bacteria in his bloodstream. Four different types of fecal bacteria polluted the bloodstream, and, at sentencing, experts agreed that only the introduction of feces into the intravenous line could have caused this unusually severe sepsis.

After the sepsis, four treating physicians discussed their suspicions that Lyda had caused Joseph's illness. The doctors reported their suspicions to the Office of Special Investigations, and the FBI placed a video camera in Joseph's hospital room. The tape shows five types of abuse: (1) On November 24 and 25, the tape showed Lyda pouring a substance, presumably water, into Joseph's feeding bag. This would dilute the formula, causing the medical staff to believe that formula was not effectively promoting growth and forcing the doctors to perform more drastic medical procedures. (2) On December 2, 1994, Lyda blew into Joseph's G tube six times, which caused distention and discomfort and forced the doctors to discontinue feedings. (3) Also on December 2, Lyda placed objects into the G tube and feeding apparatus, which blocked the food from draining into Joseph's stomach. (4) That same day, Lyda placed her fingers over Joseph's trachea site, suffocating him for sixty-two seconds. This suffocation threatened to spark a long apneic episode with significant effects. (5) Finally, two tapes reveal Lyda's pinching and squeezing Joseph severely and causing him visible pain. A nurse's report describes Joseph's discomfort, and a treating physician testified that pain can induce apnea.

A government forensic toxicologist, Dr. Alphonse Poklis, reviewed the medical records of all three children and determined that Ipecac poisoning had caused their symptoms. A government expert in mitochondrial disease, Dr. Richard Haas, testified that even if a mitochondrial disorder had caused some of their symptoms, Ipecac poisoning was responsible for some symptoms. Haas also testified that another human being caused their anoxia (lack of oxygen). After separation from Lyda, Joseph's physical symptoms disappeared, which some experts testified is more consistent with Ipecac poisoning than with a mitochondrial disorder.

II.

Lyda pleaded guilty to four counts of injury to a child and endangering a child as defined by Texas Penal Code §§ 22.04 and 22.041 and incorporated by the ACA. The plea agreement stipulated that Lyda's sentence "will be imposed in conformity with the Federal Sentencing Guidelines and Policy Statements, which may be up to the maximum allowed by statute for her offense."

The district court initially calculated a total offense level of 29 and a criminal history category of I, which yielded an imprisonment range of 87-108 months and a supervised release period of 2-3 years. The court then made several upward departures:

(1) The court departed upward to increase her criminal history category from I to III to reflect uncharged criminal conduct toward Aaron, Daniel, and Joseph, U.S.S.G. Manual § 4A1.3 (2000). (2) The court departed upward by four levels for extreme conduct, U.S.S.G. § 5K2.8. (3) The court imposed consecutive rather than concurrent sentences, U.S.S.G. § 5G1.2(d). (4) The court departed upward by three levels for extreme psychological injury, U.S.S.G. § 5K2.3. (5) The court departed upward by three levels for use of a dangerous weapon, U.S.S.G. § 5K2.6.

III.

We first must decide, as a threshold matter, whether Lyda has waived her right to appeal the imposition of consecutive sentences.² In her plea agreement, she waived the right to appeal any sentence within the guidelines range but reserved the right to appeal any departure from the guideline range. If we decide that imposing consecutive sentences is an enhancement under U.S.S.G. § 5G1.2(d), the terms of the plea agreement may bar an appeal; if we determine that imposing consecutive sentences is an upward departure, Lyda retains the right to appeal. Even if she waived her right to appeal under the guidelines, she may retain that right based on the guidelines' inconsistency with the ACA.

A.

The plea agreement waives Lyda's right to appeal on all grounds other than departures, but it does not explicitly address consecutive or concurrent sentencing.³ During re-arraignment, the court engaged Lyda in a discussion about the scope of the waiver. After explaining that "you cannot appeal your sentence on any ground and you cannot appeal any decision . . . concerning the guidelines applicable to your case," the court immediately added that "you may appeal the sentence if I depart from the guideline range."

The court did not describe the consecutive sentences as either an enhancement under § 5G1.2(d) or an upward departure.⁴ This court has refused to assume that a court imposed consecutive sentences as an enhancement rather than a departure. United States v. Candelario-Cajero, 134 F.3d 1246, 1248-49 (5th Cir. 1998). Absent an explanation, we must presume that the district court imposed consecutive sentences as a departure. Further, the guidelines compelled the court to impose consecutive sentences as a departure, not an enhancement.

B.

The guidelines explain the conditions under which a sentence should be imposed consecutively or...