U.S. v. Salemi, 92-6850
| Decision Date | 25 July 1994 |
| Docket Number | No. 92-6850,92-6850 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. Akbar SALEMI, Defendant-Appellee, Cross-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
James Eldon Wilson, U.S. Atty., Louis V. Franklin, Sr., Asst. U.S. Atty., Montgomery, AL, for appellant.
Paul R. Cooper, Cooper and Cooper, Montgomery, AL, for appellee.
Appeals from the United States District Court for the Middle District of Alabama.
Before HATCHETT and EDMONDSON, Circuit Judges, and SMITH *, Senior Circuit Judge.
Because the district court improperly made two downward departures in sentencing, and refused to apply two sentencing enhancements, we vacate the sentence and remand for resentencing.
On December 26, 1990, at approximately 7 p.m., in Alabama, Sheena Holloway left her six-month-old infant daughter, Dana Christine Holloway, with a house guest, Patricia Shaw. Later that evening when Holloway returned, Shaw and the baby were gone. Holloway also noticed that a photograph of her, a photograph of her automobile, and the baby's birth certificate, diaper bag, and clothing were missing.
The investigation of the kidnapping led to Shaw's husband, Akbar Salemi, a resident of Miami, Florida. When a Federal Bureau of Investigation (FBI) agent interviewed Salemi at his job and inquired about the whereabouts of his wife, Salemi feigned ignorance about her whereabouts, but promised to notify the agent immediately if she contacted him. Promptly after being interviewed, Salemi On January 8, 1991, law enforcement officers arrested Shaw who then led the authorities to a motel where they arrested Salemi with the baby. During the post-arrest interview, Salemi admitted that he had lied to the FBI agent to protect Shaw and the baby.
fled to Kissimmee, Florida, with Shaw and the baby.
One day after his trial on July 23, 1991, the district court granted Salemi's motion for mistrial because both the prosecution and defense expert witnesses agreed that Salemi's mental condition had deteriorated to such a point that he was no longer competent to stand trial. On June 23, 1992, at a subsequent jury trial, the jury rejected Salemi's insanity defense finding him guilty of kidnapping, in violation of 18 U.S.C. Secs. 1201(a)(1), (2).
After reviewing the Presentence Report (PSR), the district court decreased Salemi's offense level to 15 producing a sentencing range of 18 to 24 months. The government objected to the court's factual findings that no obstruction of justice occurred and the baby was not a vulnerable victim. The government also objected to the district court's departure downward based on Salemi's diminished capacity and attempted avoidance of a perceived greater harm.
We address the following issues:
(1) Whether Salemi's diminished capacity warranted a downward departure;
(2) whether the district court properly departed downward because Salemi attempted to avoid a perceived greater harm;
(3) whether the six-month-old baby was a vulnerable victim; and
(4) whether Salemi obstructed justice.
An appellate court's application of the United States Sentencing Commission Guidelines Manual presents questions of law and fact. The district court's findings of fact are reviewed under the clearly erroneous standard, while the reviewing court's application of law to those facts is subject to de novo review. United States v. Weaver, 920 F.2d 1570, 1573 (11th Cir.1991).
Relying on Sec. 5K2.13 of the Sentencing Guidelines, the district court reduced Salemi's offense level due to his diminished mental capacity. Section 5K2.13 provides as follows: "If the defendant committed a non-violent offense while suffering from significantly reduced mental capacity ... a lower sentence may be warranted to reflect the extent to which reduced mental capacity contributed to the commission of the offense...." The district court concluded that Salemi suffered a mental defect that made him "particularly susceptible to the influence of females that he trusted." The court further concluded that Salemi was a nonviolent person who probably believed he was protecting the baby.
The government contends that the district court erroneously departed downward based upon Salemi's diminished mental capacity because the plain language of section 5K2.13 explicitly excludes violent offenders--such as kidnappers--thereby rendering Salemi ineligible for a downward departure under this provision.
In United States v. Russell, 917 F.2d 512 (11th Cir.1990), cert. denied, 499 U.S. 953, 111 S.Ct. 1427, 113 L.Ed.2d 479 (1991), this court determined that the Sentencing Commission had considered the mental or emotional condition of a defendant when the Commission stated that those conditions are not ordinarily relevant in determining whether a sentence should be outside the guidelines, except as provided in the general provisions of chapter 5. U.S.S.G. Sec. 5H1.3, p.s.; Russell, 917 F.2d at 517. The Sentencing Commission specifically considered diminished capacity in U.S.S.G. Sec. 5K2.13, p.s. Russell, 917 F.2d at 517.
While it is undisputed that Salemi had a history of mental illness, the guidelines and the case law are clear in stating that mental and emotional conditions should not be considered if the defendant committed a violent crime. United States v. Fairman, 947 F.2d 1479 (11th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1503, 117 L.Ed.2d 642 (1992); Russell, 917 F.2d at 517.
Kidnapping is a violent crime. Section 4B1.2, U.S.S.G., defines crime of violence as any offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another." Application Note 2 of U.S.S.G. Sec. 4B1.2 includes kidnapping in its listing of crimes that are crimes of violence. The Commission recognized that kidnapping inherently involves the threat of violence.
The district court erroneously focused on Salemi rather than the crime itself, when it stated, "you have to consider ... the individual committing the offense in deciding whether it is a crime of violence." This conclusion is in direct conflict with Application Note 2 of U.S.S.G. Sec. 4B1.2 which states that "the conduct of which the defendant was convicted is the focus of inquiry."
In Russell, despite the fact that the gun was neither fired nor loaded, this court held the bank robbery to be a crime of violence. This case is analogous to Russell in that in both cases the defendants contended that their dependent personality disorders warranted a downward departure due to diminished capacity. The district court in Russell, as in this case, agreed and departed downward from the adjusted guideline range. On appeal, this court vacated and remanded Russell, holding that mental and emotional conditions of the defendant cannot be considered as a mitigating factor when the offense of conviction is a crime of violence.
Because kidnapping is a crime of violence, we hold that the district court erred in its downward departure based upon Salemi's diminished mental capacity.
The district court also departed downward pursuant to U.S.S.G. Sec. 5K2.11, p.s., which states in pertinent part:
No evidence presented to the district court supports a downward departure under section 5K2.11. Although the district court suggested that the baby may have been in an abusive environment, the district court admitted that no evidence existed that the defendant helped kidnap the baby to protect her from an unsafe environment. The court stated the following:
Thus, the undisputed evidence only showed that Salemi knew his wife was bringing a baby to their home. Shortly after her arrival in Miami, Salemi lied to the FBI to help hide the baby. Salemi knew the baby had been kidnapped and that law enforcement officers were seeking his wife. Nevertheless, he quit his job, fled from his home city, and helped keep the baby hidden from authorities. Consequently, we hold that no factual basis exists for a downward departure under section 5K2.11.
The district court also determined that the six-month-old baby was not a vulnerable...
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