U.S. v. Norton

• Decision Date: 15 August 2002
• Docket Number: No. 01-CR-180.,01-CR-180.
• Citation: 218 F.Supp.2d 1014
• Parties: UNITED STATES of America, Plaintiff, v. Yavanda NORTON, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

218 F.Supp.2d 1014

UNITED STATES of America, Plaintiff, v. Yavanda NORTON, Defendant.

No. 01-CR-180.

United States District Court, E.D. Wisconsin.

August 15, 2002.

COPYRIGHT MATERIAL OMITTED

Stephen A. Ingraham, Milwaukee, WI, for Plaintiff.

Dean A. Strang, Milwaukee, WI, for Defendant.

DECISION AND ORDER

ADELMAN, District Judge.

"The United States Sentencing Guidelines do not require a judge to leave compassion and common sense at the door to the courtroom." United States v. Johnson, 964 F.2d 124, 125 (2d Cir.1992). In this case, I conclude that compassion and common sense require modification of the sentence called for by the guidelines. Accordingly, I grant a downward departure based on the extraordinary family circumstances of the defendant, Yavanda Norton.

I. FACTS

Defendant was charged in nine counts of a sixteen count superseding indictment with bank fraud, use of counterfeit access devices, use of unauthorized credit card account numbers, and possession of device-making equipment. On April 17, 2002, she pled guilty to one count of unauthorized use of credit card account numbers pursuant to a written plea agreement with the government, which called for the dismissal of the remaining counts. A pre-sentence report was prepared and, following an adjustment for role in the offense,¹ defendant's offense level was determined to be 13 and her criminal history category II, producing an imprisonment range of fifteen to twenty-one months.

However, defendant asked the court to depart downward based on her extraordinary family circumstances. Defendant is a thirty-eight year old, single mother of three. She gave birth to her youngest son, Torey, on June 21, 2002. There were difficulties in delivery; the baby presented in a breech position, and when the doctors attempted to turn the baby his heart stopped, necessitating an emergency caesarian section. Torey then developed a viral infection that required hospitalization during the week of July 8, 2002. Torey's father has indicated that he has no interest in being involved in the child's life and has moved to Alabama.

Defendant also has a thirteen year old son, Corey, who resides with her and recently completed the seventh grade. Corey suffers from asthma and uses a prescribed inhaler. Corey's father contributes to his support but is not otherwise involved in his life.

Defendant's oldest child, Dwayne, is nineteen and a student at the University of Wisconsin-Milwaukee. He also resides with defendant. Defendant assists Dwayne with his tuition and expenses and also provides him with health insurance coverage. This coverage enables him to obtain treatment for severe asthma and dental work which is necessary to repair his teeth following a serious sports accident. Dwayne's father has never been part of his life.

Defendant also cares for her mother who is seventy-two and suffers from high blood pressure, gout, nervousness and other health problems. Defendant's mother does not drive and relies on defendant to drive her to doctor's appointments, the grocery store and on other errands.

Defendant has no family members who are in a position to take her children in should she be incarcerated. She is not married. Her youngest brother Gerald lives in Virginia. Her brother, Clifford, lives in Milwaukee with his wife and three children but has filed an affidavit indicating that he works only part-time, that his house has only three bedrooms, and that he is unable to assume the responsibility of caring for defendant's three children, including an infant. Defendant's brother, David, also lives in Milwaukee but is currently receiving disability compensation as the result of a serious back injury that necessitated a spinal fusion. He states that he is incapable of taking in defendant's children and may be leaving the state. Defendant's brother, Robert, is employed as a firefighter which requires him to work twenty-four to forty-eight hours straight, and, thus, is also unable to assume responsibility for defendant's children. Finally, defendant's mother is frail and not capable of caring for an infant and two teenagers. Thus, if defendant were incarcerated, it would almost certainly require that the younger children be placed in state custody. Additionally, Dwayne would likely lose his home and his health insurance.

II. DISCUSSION

A. Standard for Departures

In passing the Sentencing Reform Act of 1984, 18 U.S.C. § 3551 et seq., Congress "made far-reaching changes in federal sentencing." Koon v. United States, 518 U.S. 81, 92, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Congress created the United States Sentencing Commission and charged it with the task of developing sentencing guidelines for federal district courts to follow. Id. "A district judge must now impose on a defendant a sentence falling within the range of the applicable Guideline, if the case is an ordinary one." Id. However, a court retains discretion to "depart from the applicable Guideline range if `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.'" Id. (quoting 18 U.S.C. § 3553(b)).

The Commission has provided guidance in making departure decisions by listing certain factors that are "forbidden" bases for departure (e.g., race, sex, national origin, creed, religion, socioeconomic status, economic hardship, lack of guidance as a youth, or drug or alcohol dependence); "encouraged" bases for departure (e.g., provocation by the victim, commission of a crime to avoid a greater harm or due to coercion or duress, or reduced mental capacity); and "discouraged" bases for departure (e.g., age, education and vocational skills, mental and emotional conditions, physical condition, employment record, community and family ties and responsibilities, and military or public service). See id. at 93-95, 116 S.Ct. 2035; United States Sentencing Guidelines Manual ch. 5, parts H & K. "A sentencing judge has broad discretion to depart downward when not blocked by a specific guideline." United States v. Gee, 226 F.3d 885, 900 (7th Cir. 2000).

A court confronted with a motion for a downward departure should first determine what factors make the case unusual, taking it out of the "heartland" of typical cases, and then whether the Commission has forbidden, encouraged, or discouraged departures based on those factors. Koon, 518 U.S. at 95, 116 S.Ct. 2035.

If the special factor is a forbidden factor, the sentencing court cannot use it as a basis for departure. If the special factor is an encouraged factor, the court is authorized to depart if the applicable Guideline does not already take it into account. If the special factor is a discouraged factor, or an encouraged factor already taken into account by the applicable Guideline, the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present. If a factor is unmentioned in the Guidelines, the court must, after considering the structure and theory of both relevant individual guidelines and the Guidelines taken as a whole, decide whether it is sufficient to take the case out of the Guideline's heartland.

Id. at 95-96, 116 S.Ct. 2035 (citations and internal quote marks omitted).

B. Departures Based on Family Circumstances

In this case, defendant seeks a downward departure because of her family circumstances. U.S.S.G. § 5H1.6 states: "Family ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range." Thus, family circumstances are a discouraged basis for departure.

However, the courts have long held that when a defendant's family situation is unusual or extraordinary a departure is proper. See, e.g., United States v. Dominquez, 296 F.3d 192 (3d Cir.2002); United States v. Aguirre, 214 F.3d 1122 (9th Cir.), cert. denied, 531 U.S. 970, 121 S.Ct. 408, 148 L.Ed.2d 315 (2000); United States v. Canoy, 38 F.3d 893 (7th Cir.1994); United States v. Johnson, 964 F.2d 124 (2d Cir. 1992); United States v. Pena, 930 F.2d 1486 (10th Cir.1991); United States v. Handy, 752 F.Supp. 561 (E.D.N.Y.1990). This determination is fact-intensive and thus commended to the district court's discretion. See United States v. Owens, 145 F.3d 923, 929 (7th Cir.1998).

"There is no requirement that the circumstances be extraordinary by any particular degree of magnitude." Dominguez, 296 F.3d at 195. Neither must they be "extra-extraordinary" or "truly extraordinary." Id. Rather, the court must simply identify facts that make this case different from the usual case.

However, the court should not depart based on generic concerns about breaking up a family. See, e.g., United States v. Wright, 218 F.3d 812, 815 (7th Cir.2000). "Imprisoning the mother of a child for even a short period of time is bound to be a wrenching experience for the child, but the guidelines do not contemplate a discount for parents of children." United States v. Stefonek, 179 F.3d 1030, 1038 (7th Cir.1999). Rather, it must be shown that "the period of incarceration set by the Guidelines would have an effect on the family or family members beyond the disruption to family and parental relationships that would be present in the usual case." Canoy, 38 F.3d at 907.

As the Seventh Circuit noted in Canoy: The line between the usual and the unusual is admittedly a fine one. Then-Chief Judge Breyer observed in Rivera that:

It may not be unusual, for example, to find that a convicted drug offender is a single mother with family responsibilities, but, at some point, the nature and magnitude of family responsibilities (many children? with handicaps? no money? no place for children to go?) may transform the `ordinary' case of such...