U.S. v. Vela, 90-1065

• Decision Date: 08 March 1991
• Docket Number: No. 90-1065,90-1065
• Citation: 927 F.2d 197
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Susie VELA and Jose Luis Vela, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 197

927 F.2d 197

UNITED STATES of America, Plaintiff-Appellee, v. Susie VELA and Jose Luis Vela, Defendants-Appellants.

No. 90-1065.

United States Court of Appeals Fifth Circuit.

March 8, 1991.

Rehearing Denied April 9, 1991.

John D. Nation, Dallas, Tex., for J.L. Vela.

Elizabeth Unger Carlyle, Arch C. McColl, III, McColl & McColloh, Dallas, Tex., for Susie Vela.

James T. Jacks, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Texas.

Before CLARK, Chief Judge, RONEY ^* and DUHE, Circuit Judges.

CLARK, Chief Judge:

Defendants, Susie Vela and Jose Luis Vela, each entered a plea of guilty to conspiracy to distribute heroin in an amount greater than 100 grams in violation of 21 U.S.C. Sec. 841(a)(1). Defendants appeal the sentences imposed under the sentencing guidelines. We affirm.

I. FACTS AND PROCEDURAL HISTORY

The Government charged Susie Vela (Susie) and Jose Vela (Jose), along with other family members, in a multi-count indictment on various charges relating to a family conspiracy for the distribution of heroin. On the day of trial, Susie and Jose each pleaded guilty to one count of conspiracy to distribute heroin in an amount greater than 100 grams in violation of 21 U.S.C. Sec. 841(a)(1). Based upon presentence investigation reports, the district court sentenced each defendant under the sentencing guidelines. Susie was placed in a guideline range of 151 to 188 months, and was sentenced to a term of imprisonment of 151 months. Jose was placed in a guideline range of 121 to 151 months, and was sentenced to a term of imprisonment of 121 months.

II. DISCUSSION

Susie Vela:

A. Mental And Emotional Conditions.

Susie argues that the district court erred in refusing to depart downward from the guideline range due to the corrupting influence of her family history. At the sentencing hearing, Susie offered extensive evidence that her stepfather had sexually abused Susie as a child and that this experience and the denial of this experience by her mother predisposed her to commit the underlying offense. Susie claims that she was entitled to a downward departure from the guidelines for that reason and that the district court incorrectly concluded that it lacked authority to depart downward.

We will review de novo a district court's determination that the Sentencing Commission adequately considered a particular circumstance in formulating the guidelines. See United States v. Jagmohan, 909 F.2d 61, 64 (2d Cir.1990).

The guidelines provide that a sentencing court need not impose a sentence within the 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." 18 U.S.C. Sec. 3553(b). In determining what circumstances the Sentencing Commission has adequately considered, the sentencing court should treat each guideline as carving out a "heartland," a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.

Sentencing Guidelines, Ch. 1, Pt. A, intro. comment, at 1.5-1.6.

Section 5H1.3 of the guidelines provides, in relevant part, that "[m]ental and emotional conditions are not ordinarily relevant in determining whether a sentence should be outside the guidelines." A defendant's family history of incest or related treatment which causes defendant to incur a mental or emotional condition that affects criminal conduct, may be a ground for departure in extraordinary cases. It is clear that the Sentencing Commission, while leaving open the possibility that the circumstances of a defendant's mental or emotional condition may be so extraordinary that departure from the guidelines is proper, did not consider these factors relevant in formulating the guidelines. See United States v. Jagmohan, 909 F.2d at 65 (upholding a downward departure on the basis of previous employment although the guidelines provide that previous employment is not "ordinarily relevant" to the determination of whether departure is warranted); United States v. Brand, 907 F.2d 31, 33 (4th Cir.1990) (ruling that a downward departure for family responsibilities would be permissible in extraordinary circumstances even though the guidelines specify that family ties and responsibilities are not "ordinarily relevant" to the determination of whether departure is warranted); United States v. White, 893 F.2d 276, 280 (10th Cir.1990) (finding that the Sentencing Commission did not adequately consider the circumstances present in light of explicit statements in the guideline comments that the certain circumstances were appropriate grounds for departure).

The district judge's brief opaque comments in today's case are appended. Read most favorably to defendant, the judge said he could not go below the guidelines range because of her family history. He further indicated that, even if he thought that such a departure could be allowed on these facts, he would not do so. Finally, he ruled that he had reduced her exposure to the extent appropriate by sentencing Susie at the bottom of her guideline range. Susie contends this amounts to an erroneous interpretation of Sec. 5H1.3 and an abuse of judicial discretion to depart conferred by Sec. 5K1.2. We disagree.

The district court concluded that the facts Susie offered as a justification for a downward departure were factually insufficient to warrant a downward departure. Childhood abuse and neglect are often present in the lives of criminals. They always affect their mental and emotional condition. United States v. Daly, 883 F.2d 313, 389 (4th Cir.1989). "We simply cannot agree, therefore, that these are the kinds of considerations which warrant substantial reductions in guidelines sentences." Id. In Susie's case, the district court found that her family life was shocking and repulsive. However, he also found that Susie's family background did not cause her to commit the crime to which she pleaded guilty. Rather, it caused her to seek to ingratiate herself with her mother, an active participant in the heroin conspiracy. Susie freely chose to do so by participating in the heroin conspiracy.

One of the primary goals of the Sentencing Guidelines is to impose a sentence based on the crime, not the offender. United States v. Mejia-Orosco, 867 F.2d 216, 218, reh'g denied, 868 F.2d 807 (5th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3257, 106 L.Ed.2d 602 (1989). The facts alleged by Susie are not the type of extraordinary mental and emotional conditions that impact the crime. While the facts Susie alleges are egregious, they in no way lessen the extent of her criminal conduct or determine the appropriate sentence for that conduct. Thus, the district court properly determined these facts are of the type "not ordinarily relevant" under Sec. 5H1.3 of the guidelines.

B. 18 U.S.C. Sec. 3661.

Susie argues that the district court's refusal to depart downward from the guidelines range based upon her family history, offended the principles of 18 U.S.C. Sec. 3661 which provides:

No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.

We disagree.

It is well established that the sentencing court may consider any information a defendant may wish to offer when it formulates an appropriate sentence. Section 1B1.4 of the Sentencing Guidelines states in pertinent part:

In determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background character and conduct of the defendant unless otherwise prohibited by law.

This provision rescripts 18 U.S.C. Sec. 3661.

Although a court may consider any information not legally prohibited, it is not free to ignore the mandate of the guidelines in formulating the sentence which such information produces. Information may set the proper guideline range or justify a departure from that range. Here, the district court fairly considered all the information Susie presented and correctly concluded that such information did not permit a departure. Since it did not impact the commission of the crime, the decision is correct. See United States v. Hatchett, 923 F.2d 369, 374 n. 4 (5th Cir.1991).

C. Coercion.

Susie argues that the district court erred in refusing to depart downward from the guideline range for coercion and stress. Section 5K2.12 provides, in part:

If the defendant committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense, the court may decrease the sentence below the applicable guideline range. The extent of the decrease ordinarily should depend on the reasonableness of the defendant's actions and on the extent to which the conduct would have been less harmful under the circumstances as the defendant believed them to be. Ordinarily coercion will be sufficiently serious to warrant departure only when it involves a threat of physical injury, substantial damage to property or similar injury, substantial damage to property or similarly injury resulting from the unlawful action of a third party or from a natural emergency.

The district court here found that Sec. 5K2.12 did not apply to the present situation. This determination is correct. No threat of violence, whether to person or property, occurred. Moreover, any improper influence that may be attributed to Susie's mother did not amount to coercion...