U.S. v. Pallowick, 03-CR-133.

• Decision Date: 01 April 2005
• Docket Number: No. 03-CR-133.,03-CR-133.
• Citation: 364 F.Supp.2d 923
• Parties: UNITED STATES of America, Plaintiff, v. Jacob PALLOWICK, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

364 F.Supp.2d 923

UNITED STATES of America, Plaintiff, v. Jacob PALLOWICK, Defendant.

No. 03-CR-133.

United States District Court, E.D. Wisconsin.

April 1, 2005.

Gregory Haanstad, Milwaukee, WI, for Plaintiff.

Brian Mullins, for Defendant.

STATEMENT OF REASONS MEMORANDUM

ADELMAN, District Judge.

Defendant Jacob Pallowick pled guilty to six armed bank robberies. A pre-sentence report ("PSR") was prepared, which indicated that defendant's offense level was 27¹ and his criminal history category I, producing an imprisonment range of 70-87 months under the sentencing guidelines. Defendant moved for a downward departure based on diminished mental capacity, U.S.S.G. § 5K2.13, and vulnerability to abuse in prison, Koon v. United States, 518 U.S. 81, 112, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). He relied on a psychological evaluation and report from Dr. Bronson Levin, a clinical and forensic psychologist. The government opposed the motion and countered with its own report from Dr. John Pankiewicz.

However, prior to sentencing the Supreme Court issued its decision in United States v. Booker, ___ U.S. ___, 125 S.Ct 738, 160 L.Ed.2d 621 (2005), which effectively made the guidelines advisory only. Defendant then argued that the factors set forth in his motion supported a non-guideline sentence below the advisory range. The government argued for a guideline term.

Upon consideration of the evidence and the arguments of counsel I decided to impose a non-guideline sentence. In this memorandum I set forth my reasons.

I. BACKGROUND

At first blush, it might appear that a defendant guilty of six armed bank robberies who sought a sentence below a modest guideline range was pushing his luck. However, the facts of this case were highly unusual, and the sentencing decision was a very difficult one.

Defendant has a long history of mental illness, which runs in his family. His mother suffers from depression, for which she takes anti-depressants. His maternal grandmother and aunt had anxiety disorders, another aunt had clinical depression, and his half-brother takes medication for depression. As a child, defendant was withdrawn and spent most of his time playing alone in his room. These loner qualities became more pronounced in middle school, as the symptoms of an anxiety disorder emerged. He began to worry excessively about vague apprehensions of things going wrong, with strain and tension in his chest and "gut." He would get sweaty, shake, have trouble breathing and feel nauseous. During his high school years defendant developed a second emotional disorder, major depression, characterized by loss of energy and motivation, severe lack of confidence, and social withdrawal. At that point, in addition to sporadic anxiety attacks, he also felt near constant depression.

Defendant did poorly in high school, finishing in the bottom 25% of his class (and completed school only at the strict prodding of his step-father), despite the fact that his IQ tested in the superior range. Defendant enrolled at the University of Wisconsin-Milwaukee, but failed all of his classes, accumulating large student loan debts in the process. He then went through a series of jobs but was never able to hold one due to the symptoms of his mental illness. "Each new failure increased his depression and reinforced the belief that he was so afflicted that he would never succeed." (Dr. Levin's Report at 3.)

Defendant began drinking alcohol and smoking marijuana as a method of coping with his mental illness (as had his mother before she entered treatment). He stated that his substance abuse shifted the focus of his thinking from the troubling thoughts and feelings to the feeling of intoxication.

In 2002, defendant moved into an apartment with several acquaintances. However, the thought of being unable to afford the $325 monthly rent began to consume him. Defendant withdrew even further, and his family members reported that he refused to answer his phone or the door. In the fall of 2002, he suffered a severe panic attack and was taken to the emergency room. He was provided with medication but found that it did not relieve his symptoms. He sought treatment at the Milwaukee County Mental Health Complex ("MCMHC") because he had no insurance and received medication for depression. However, the medications were inadequate. He returned to the MCMHC on a few occasions but soon found that he was unable to motivate himself to do even that.

At that point,

Out of work, and unable to motivate himself to find work which he knew he could not handle ("I couldn't even go to a job interview and ask for an application. I was dead to the world."), Mr. Pallowick worried how he would pay his rent. His major concerns were letting down his roommates and his parents finding out that he was a failure. The worry became profoundly all-consuming, seeming to be "worse than death." It became imperative to end the anguish ("It was unbearable. I felt like my head was going to pop from the pressure. It kept building. There was no way around it at all.") The thought of getting money from a bank came to him one day ("There was no other way I could think of to live.") and "instantly the anxiety got better."

(Dr. Levin's Report at 4.)

Defendant proceeded to commit six bank robberies between January and June 2003. His method was much the same in all of the crimes. He would enter the bank, approach the teller and submit a withdrawal slip. When the teller would question the account number on the slip, defendant would present a note or card indicating that he had a bomb and wanted money. Defendant actually had no bomb; rather, he carried a nylon or canvas bag containing some wires he had taped to a computer chip. No one was harmed during any of the robberies, and defendant made no direct threats to harm anyone. During several of the later robberies, defendant tried to disguise himself, wearing a hat and painting an acrylic scar on his face.

Defendant was eventually caught due to his inherent politeness. As he was leaving the bank following the last robbery, defendant's bag swept some deposit envelopes onto the floor. Defendant picked them up and returned them to the counter. Fingerprint tests led the police to defendant, and a search of his apartment pursuant to a warrant uncovered various materials used in the robberies. Defendant was arrested and quickly confessed. He told the officers: "I am very sorry about scaring the tellers.... I beg for help. I have not been a whole person for many years. I cannot keep going with so much sadness and despair in my soul. I thank the officers who spent the time going over just what I have done." (Def. Stat. at 1.)

After his arraignment, defendant was released to complete an intensive in-patient program at Rogers Memorial Hospital, where new medications, Effexor (an anti-depressant) and Seroquel (an anti-psychotropic tranquilizer), were started. Following his discharge, he began counseling and continued with his medication regime.

Defendant and his family soon noticed a change in his condition. His anxiety and depression were relieved, and he was able to socialize with others. In May 2004 he obtained employment at a TV Repair shop, which he held until the shop closed in December 2004. He then got another job at a TV repair shop, which he held up to the time of sentencing. He did well on pre-trial supervision and committed no new offenses during the nearly two years the matter was pending.

By the time the case reached the sentencing stage, defendant was clearly a different person. Unable to eat when suffering the severe effects of his condition, defendant gained more than 50 pounds. He also displayed remarkable insight into his condition during his sentencing allocution. He appeared to be the gentle, meek person described in the records.

Therefore, I had to in imposing sentence reconcile the serious nature of the crimes with the unusual circumstances surrounding their commission.

II. DISCUSSION

A. Sentencing Procedure

Following Booker, I follow a three-step sentencing process. First, I determine the applicable advisory guideline range. As noted, in the present case the range was 70-87 months. Second, I determine whether, pursuant to the Sentencing Commission's policy statements, any departures from the advisory guideline range clearly apply. Finally, I determine the appropriate sentence in light of the factors set forth in 18 U.S.C. § 3553(a). I can impose a sentence within the applicable guideline range (after any clearly applicable departures) if that is consistent with my consideration of the § 3553(a) factors, or impose a non-guideline sentence if that is justified by the § 3553(a) factors. I need not definitively resolve any departure issues if I decide to impose a non-guideline sentence. See United States v. Smith, 359 F.Supp.2d 771, 772-73 (E.D.Wis.2005) (citing United States v. Crosby, 397 F.3d 103 (2d Cir.2005)).

In the present case, defendant moved for a downward departure based on his diminished mental capacity and vulnerability to abuse in prison. However, this was before Booker made the guidelines advisory. At sentencing, defendant presented his arguments in terms of the § 3553(a) factors and asked for a sentence below the advisory range. Consistent with his argument and because I concluded that a non-guideline sentence was appropriate, I made no formal ruling on the departure motion.

B. Analysis

In imposing sentence, I have to consider the factors set forth in § 3553(a), which include:

(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...