U.S. v. Menyweather

• Decision Date: 16 December 2005
• Docket Number: No. 03-50496.,03-50496.
• Citation: 447 F.3d 625
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Dorothy MENYWEATHER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 625

447 F.3d 625

UNITED STATES of America, Plaintiff-Appellant, v. Dorothy MENYWEATHER, Defendant-Appellee.

No. 03-50496.

United States Court of Appeals, Ninth Circuit.

Argued October 13, 2004.

Resubmitted December 7, 2005.

Filed December 16, 2005.

Amended May 9, 2006.

Nicholas A. Marsh, Trial Attorney, Criminal Division, Public Integrity Section, United States Department of Justice, Washington, D.C., for the plaintiff-appellant.

Elizabeth A. Newman, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellee.

Appeal from the United States District Court for the Central District of California; Manuel L. Real, District Judge, Presiding. D.C. No. CR-00-01253-R.

Before: ANDREW J. KLEINFELD, HAWKINS, and SUSAN P. GRABER, Circuit Judges.

ORDER

The opinion filed on December 16, 2005, is amended as follows:

On slip opinion page 16488, line 17 , beginning with "Also, because...." and ending on page 16489, line 6 , "Haack, 403 F.3d at 1003." delete and replace with the following:

Thus, if the sentence imposed resulted from an incorrect application of the Sentencing Guidelines,¹ and the error was not harmless, ordinarily we will remand to the district court for further sentencing proceedings, permitting the district court on remand to consider the proper Guidelines sentence along with other sentencing factors. Kimbrew, 406 F.3d at 1153; see also United States v. Riggs, 410 F.3d 136, 136-37 (4th Cir.2005); Haack, 403 F.3d at 1003.

With this amendment, Judges Hawkins and Graber have voted to deny the petition for rehearing and petition for rehearing en banc. Judge Kleinfeld has voted to grant the petition for rehearing and petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on it.

The petition for rehearing and petition for rehearing en banc are DENIED. No further petitions for rehearing or for rehearing en banc may be filed.

OPINION

GRABER, Circuit Judge:

For the third time, the United States appeals the sentence imposed upon Defendant Dorothy Menyweather's conviction by guilty plea to one count of mail fraud, in violation of 18 U.S.C. §§ 1341 and 1346. The government objects to the district court's eight-level downward departure for mental and emotional condition, diminished capacity, and extraordinary family circumstances, a departure that the district court has reimposed twice after remands from this court. United States v. Menyweather, 36 Fed.Appx. 262 (9th Cir.2002) (unpublished disposition) ("Menyweather I"); United States v. Menyweather, 69 Fed.Appx. 874 (9th Cir.2003) (unpublished disposition) ("Menyweather II").

While this third appeal was pending, the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), altering significantly the legal context in which we must decide this appeal. Before Booker, we reviewed de novo whether a departure was proper under the constraints set forth in the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"). See 18 U.S.C. § 3742(e). Now, instead, we review the district court's sentence for "reasonableness." Booker, 125 S.Ct. at 765-66. Also, whereas the district court was previously required to sentence according to the Guidelines, the Guidelines are now "effectively advisory." Id. at 757.

The district court, of course, did not have the benefit of Booker and sentenced Defendant under the assumption that the Guidelines were mandatory. We conclude that the district court did not abuse its discretion by downwardly departing from the Guidelines. Moreover, even if the district court strayed from the departure authority available under the Guidelines, any error was harmless in view of the sentencing factors listed in 18 U.S.C. § 3553(a) (which the district court can now consider after Booker) and in view of our belief that the court would impose the same sentence again, having steadfastly maintained its position in the face of two opportunities to revise its sentence. Finally, we conclude that the resulting sentence was reasonable, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant began working as an administrative employee at the United States Attorney's office in Los Angeles in 1990. In 2000, she was indicted on 10 counts of theft of government funds, mail fraud, and wire fraud. She pleaded guilty to one count of mail fraud and admitted to having used government credit cards for unauthorized personal purchases of between $350,000 and $500,000.

At sentencing, the parties agreed with the probation office that Defendant's offense level was 16 and that her Criminal History Category was I, resulting in a sentencing range of 21 to 27 months. Defendant requested, and the government opposed, a six-level downward departure because of Defendant's family circumstances and mental and emotional condition. In support of her request, Defendant produced the evaluation of Dr. Barbara Cort Counter, a forensic psychologist.

Dr. Counter characterized Defendant as suffering from "severe symptoms of post-traumatic stress" occasioned by two events: her abandonment by her parents as a child and the violent murder of her fiancé, the bloody aftermath of which she witnessed while five months pregnant with their child in 1989. Defendant's theft offense, according to Dr. Counter, was part of a "manic denial of psychic trauma accompanied by compulsive coping behaviors." Dr. Counter had evaluated Defendant for three-and-one-half hours, administered and reviewed a psychological test, spoken with Defendant's counsel, and reviewed letters submitted by Defendant's family members. Defendant made Dr. Counter available for cross-examination, which the government declined at the first sentencing hearing. Nor did the government offer any expert psychological testimony of its own.

Defendant also argued for a departure because of the unusually important role that she played in the life of her daughter, who was 11 years old at the time of the first sentencing hearing in 2001. Since the murder of her fiancé, Defendant has been the sole parent and the primary source of financial support for her daughter.

After hearing argument, the district court departed downward by eight levels, resulting in a sentencing range of zero to 6 months. The court sentenced Defendant to five years of probation, upon the condition that she serve 40 days of her probation, on consecutive weekends, in "a jail-type institution." The court also ordered restitution totaling $435,918, plus 3,000 hours of community service. In addition, Defendant was prohibited from applying for a loan or line of credit without the prior approval of the probation office.

The government appealed, and we vacated the sentence and remanded for resentencing because the district court had given no reasons for "the direction and the degree of the departure." Menyweather I, 36 Fed.Appx. at 263. After that first remand, the district court denied the government's motions for an independent psychological evaluation of Defendant and additional investigation by the probation office, ruling that those procedures could have been, but were not, requested at the initial sentencing. After a hearing at which the government cross-examined Dr. Counter, the court reaffirmed its previous sentence. In support of the sentence, the court recited and adopted specific findings of fact and conclusions of law, as well as noting that it relied on Defendant's post-conviction rehabilitation.

In Menyweather II, we again vacated the district court's sentence and remanded, holding that the court (1) erred in relying on post-conviction rehabilitation without giving notice to the government, and (2) failed to explain the extent of the departure, as distinct from the bases for departure. 69 Fed.Appx. at 874-75. On remand, the district court again denied the government's request for further development of the record and reaffirmed its sentence. In support of the sentence, the court adopted expanded findings of facts and conclusions of law that included citations to cases in which downward departures of comparable degree had been affirmed. The court eliminated its earlier reliance on post-conviction rehabilitation.

The government timely appealed the sentence.

LEGAL STANDARDS AND STANDARDS OF REVIEW

In the wake of Booker, federal sentencing is now governed by 18 U.S.C. § 3553(a), which states that district courts "shall consider" the following factors:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for—

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—

(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code ...; and

(ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code ...;

(5) any pertinent policy statement—

(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code ...; and

(B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.

(6) the...