U.S. v. Perkins

• Citation: 963 F.2d 1523
• Decision Date: 08 May 1992
• Docket Number: No. 91-3174,91-3174
• Parties: UNITED STATES of America, Appellant, v. Anita PERKINS, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1523

963 F.2d 1523

295 U.S.App.D.C. 356

UNITED STATES of America, Appellant, v. Anita PERKINS, Appellee.

No. 91-3174.

United States Court of Appeals District of Columbia Circuit.

Argued March 10, 1992.

Decided May 8, 1992.

Thomas J. Tourish, Jr., Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher, Roy W. McLeese, III, and Carol Fortine, Asst. U.S. Attys., were on the brief, for appellant.

A.J. Kramer, Federal Public Defender, for appellee.

Before: MIKVA, Chief Judge, SILBERMAN and WILLIAMS, circuit judges.

Opinion for the Court filed by Chief Judge MIKVA.

MIKVA, Chief Judge:

This case, according to the district court, involves "an addict leading an undercover agent to somebody who is selling some crack so she can get a little crack for herself." Anita Perkins, an outpatient at St. Elizabeth's hospital, was convicted of distributing less than one gram of cocaine after she led a police officer to her co-defendant, D'Andre Richardson. The district court felt compelled to sentence Mrs. Perkins not only for the 826 milligrams she distributed, but also for 55 grams later found in Mr. Richardson's house. This dramatically increased her minimum sentence. Based on the testimony of her psychologist, however, the district court then reduced Mrs. Perkins's sentence by precisely the amount it had added because it found, among other things, that she was suffering from "reduced mental capacity" caused by a "dependent personality disorder."

The government argues that the only identifiable symptom of the disorder--"poor judgment"--is rampant among most criminal defendants. The Public Defender objects that the government caricatures Mrs. Perkins's obvious mental illness. We cannot say whether the disorder is a permissible ground for departure in this case, because the district court failed to give reasons explaining the nature and scope of its decision to depart. On remand, it will have a chance to give reasons. But we think that the district court was also too quick to assume that Guidelines require it to include Mr. Richardson's drugs in Mrs. Perkins's "relevant conduct." On remand, the court should make a specific finding about whether Mr. Richardson's drugs were "reasonably foreseeable" to Mrs. Perkins. If they were not, then Mrs. Perkins's base level should not be increased, and the downward departure confusion can be avoided entirely.

I. BACKGROUND

"What are you looking for?" Mrs. Perkins asked two undercover officers on July 9, 1989. The officers replied that they wanted to buy a $20 rock of crack; and Mrs. Perkins led them to her co-defendant, Mr. Richardson, who sold them a rock that weighed 826 milligrams.

At trial, Mrs. Perkins testified that she was addicted to crack, and intended only to possess the drug, not to distribute it. To support her habit, she testified, she had previously traded sex for drugs, but as she got older, she occasionally took people to get drugs from local distributors, receiving a piece of the drugs in return. In this case, she testified that she hoped to get a piece of crack from the undercover officer, not from the distributor, Mr. Richardson. She denied that she worked for Mr. Richardson, or that she knew him by name. (The officers testified, however, that Mrs. Perkins told them "she normally works with" the drug dealers at 2256 High Street, S.E. 8/2/90 Tr. at 16-17.) Finally, Mrs. Perkins testified that she "begged" the officers for a piece of the crack, but they "wouldn't give me a piece. I begged both of them." 8/2/90 Tr. at 58-61. A jury convicted Mrs. Perkins of distributing a "detectable amount" of crack cocaine on August 2, 1990.

Mrs. Perkins had no previous convictions. But in the presentence report provided to the district court, the probation officer attributed to Mrs. Perkins not only the 826 milligrams of crack distributed to the undercover officer, but also the 55 grams seized from Mr. Richardson. The report concluded that the much larger amount was "relevant conduct" under Guidelines § 1B1.3(a)(2). Accordingly, it calculated Mrs. Perkins base offense level as 32, rather than the 16 points she would have received if she had been sentenced on the basis of the 826 milligrams of which she was actually convicted. The difference between the two offense levels is dramatic: 97 to 121 months in prison, rather than 15 to 21 months (both sentences take into account a two point downward adjustment for "acceptance of responsibility" under § 3E1.1(a) of the guidelines). Mrs. Perkins filed a memorandum before sentencing arguing that Mr. Richardson's 55 grams should not be included in her base offense level.

The presentence report also emphasized Mrs. Perkins's mental illness:

The defendant is presently in an outpatient status at St. Elizabeth's Hospital, Washington, D.C. Medical records at St. Elizabeth's Hospital reflect that Mrs. Perkins was admitted there on September 30, 1985, and was discharged on March 6, 1986 as an outpatient. She was suffering from Borderline Personality Disorder. The records note that upon admission, she was suicidal and homicidal with impaired insight and judgment.... The defendant is currently receiving Prolixin as medication for her mental illness.

Invoking Guidelines § 5K2.13, Mrs. Perkins said she suffered from a "significantly reduced mental capacity" that contributed to the commission of her offense; and she asked the district court to depart downward from the guideline range.

The district court held an evidentiary hearing on Mrs. Perkins's request for a downward departure on the basis of her diminished capacity. Two psychologists testified: Dr. Thomas B. Drummond for Mrs. Perkins diagnosed a "dependent personality disorder"; Dr. William J. Stejskal for the government diagnosed a "borderline personality disorder." Dr. Drummond testified that Mrs. Perkins's "tendency to depend on other people is far beyond normal," and that her dependent personality was "strikingly beyond normal." When the district court asked whether the disorder substantially contributed to the offense, Dr. Drummond replied that Mrs. Perkins's tendency to direct people to drug distributors and to ask for drugs in return was "a very vivid example of her dependency." 1/24/91 Tr. at 17.

Dr. Stejskal, for his part, concluded that Mrs. Perkins suffered from borderline, rather than dependent, personality disorder, which suggested a "potential" for significantly reduced mental capacity. Based on his conversations with Mrs. Perkins and a review of her medical records, however, he did not believe that Mrs. Perkins suffered from reduced mental capacity in July, 1989.

Finding the testimony of Dr. Drummond "on the whole, more persuasive and more credible" than the testimony of Dr. Stejskal, the district court held "that this defendant was suffering from a significantly reduced mental capacity" that did not result from drugs, justifying downward departure under Guidelines § 5K2.13. 5/13/91 Tr. at 12. Accordingly, it sentenced Mrs. Perkins to 15 months, followed by supervised release for two years.

The government challenges the departure, arguing that the finding of significantly reduced mental capacity was unsupported and the scope of the downward departure was unreasonable.

II. ANALYSIS

A. Diminished Capacity

The Sentencing Reform Act of 1984 allows the Government to appeal for review of a sentence imposed in violation of the law, as a result of incorrect applications of the Guidelines, or if the district court departed downward from the Guidelines. 18 U.S.C. § 3742(b). In a recent decision, the Supreme Court emphasized the "narrow scope of review" of a district court's decision to depart:

[T]he reviewing court is obliged to conduct two separate inquiries. First, was the sentence imposed either in violation of law or as a result of an incorrect application of the Guidelines? If so, a remand is required under [18 U.S.C.] § 3742(f)(1). If the court concludes that the departure is not the result of an error in interpreting the Guidelines, it should proceed to the second step: is the resulting sentence an unreasonably high or low departure from the relevant guideline range? If so, a remand is required under § 3742(f)(2).

Williams v. United States, --- U.S. ----, ----, 112 S.Ct. 1112, 1120, 117 L.Ed.2d 341 60 U.S.L.W. 4206, 4209 (U.S. March 9, 1992). The Sentencing Guidelines also require the district court to "state in open court the reasons for its imposition of the particular sentence," and in the case of departures, "the specific reason for the imposition of a sentence different from that described." 18 U.S.C. § 3553(c). In reviewing the nature and scope of the sentence, therefore, we must consider the reasons given by the district court.

We begin with the first inquiry: was Mrs. Perkins's sentence imposed, as the government argues, in violation of the law or as a result of incorrect application of the guidelines?

1. The Nature of the Departure

Section 5K2.13 of the Sentencing Guidelines, "Diminished Capacity," says:

If the defendant committed a non-violent offense while suffering from a 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.

In this case, the district court ordered a departure under 5K2.13 because of Dr. Drummond's testimony about Mrs. Perkins's "dependent personality disorder:"

I find that this defendant did have diminished capacity at the time of the offense.... Dr. Drummond testified that she had a dependent personality disorder. One of the symptoms of that disorder, according to Dr. Drummond, was that a person exhibits poor judgement and is easily influenced by others. And that her conduct in the offense was related to that disorder.

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