United States v. Derusse

• Decision Date: 20 June 2017
• Docket Number: No. 15-3302,15-3302
• Citation: 859 F.3d 1232
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Joseph Andrew DERUSSE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

859 F.3d 1232

UNITED STATES of America, Plaintiff-Appellant,

v.Joseph Andrew DERUSSE, Defendant-Appellee.

No. 15-3302

United States Court of Appeals, Tenth Circuit.

Filed June 20, 2017

Carrie N. Capwell, Assistant United States Attorney, Office of the United States Attorney, Kansas City, Kansas (Barry R. Grissom, United States Attorney, and Aaron Smith, Assistant United States Attorney, Wichita, Kansas, on the brief) for Plaintiff-Appellant.

Daniel T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public Defender, and Steven K. Gradert, Assistant Federal Public Defender, with him on the brief), Kansas City, Kansas, for Defendant–Appellee.

Before TYMKOVICH, Chief Judge, McKAY and BALDOCK, Circuit Judges.

McKAY, Circuit Judge.

The government appeals the sentence imposed in this kidnapping case. Reviewing the district court's sentencing decision under a deferential abuse-of-discretion standard, we affirm the ruling.

Defendant Joseph DeRusse, while suffering from then-undiagnosed mental health issues, kidnapped his ex-girlfriend with a BB gun, and drove her several hundred miles away from her parents' home in Austin, Texas, intending to keep her at a bed-and-breakfast in Kansas for three weeks while he attempted to convince her to marry him. (Both Defendant and the victim were twenty-four years old at the time.) About eight hours into the kidnapping, Defendant was apprehended by a police officer on the interstate freeway in Kansas. Defendant served approximately seventy days in jail before he was released on bond. He entered a plea of guilty to the single count of kidnapping.

Defendant had no prior criminal history of any sort, and the Presentence Investigation Report (PSR) calculated an advisory sentencing range of 108–135 months, based on a total offense level of 31 and a criminal history category of I. The PSR described the way in which Defendant lured the victim to her sister's apartment building by purchasing a mobile phone, which he used to contact a friend of the victim, pretending to be a mutual friend who had a surprise for the victim at the building. When the victim arrived, he pointed a gun at her, forced her back into her car, put a sleeping mask on her eyes, and made her wear a neck pillow so that anyone who looked into the car would believe she was simply sleeping. (The victim thought Defendant's gun was a real gun and did not discover that it was a BB gun until shortly before Defendant was apprehended by the police in Kansas.) The PSR detailed the significant psychological injury the victim suffered as a result of her kidnapping. The victim reported she did not have a history of psychological issues or medical problems prior to this incident, but she was now under the care of mental health practitioners and had been diagnosed with major depressive disorder, anxiety, and post-traumatic stress disorder. She stated that she was now suffering from suicidal ideation, paranoia, nightmares, insomnia, and stress-related medical problems.

The PSR also described Defendant's difficult family background and history, and it quoted at length from the report of a forensic psychologist who evaluated Defendant and diagnosed him with major depressive disorder and obsessive-compulsive disorder. The psychologist noted, among other things, that the testing results reflected "debilitating depression and anxiety; and thought processes characterized by obsessions, suicidal ideation, and unusual perceptions or beliefs." (App. Vol. II at 11.)

The district court was informed that Defendant had been seeing a therapist and a psychiatrist and, now that he was receiving medication and other treatment, his mood and mental health had stabilized, and he was doing much better.

Before sentencing, the district court received dozens of letters from family members and acquaintances of both Defendant and the victim. Many friends wrote that they had known Defendant since he was a young child, that he was consistently caring and considerate, that he spent much of his time volunteering with his church and helping others, that they had never seen him act aggressively or violently, and that they found the kidnapping to be completely out of character for him. Several expressed the view that he must not have been "in his right mind when he did what he did" (Suppl. Index at 28) and that they were convinced he would never engage in such behavior again. The letters submitted on behalf of the victim apparently described the serious impact the kidnapping had on her, although none of these letters have been included in the record on appeal.

The district court began the sentencing hearing by stating, "[I]n my nearly 20 years on the bench, I have never encountered a sentencing that I have thought about more or tried to work through more." (App. Vol. I at 81.) After summarizing the circumstances of the case, the district court stated: "[A]fter considering the above factors and the advisory sentencing guidelines, the nature and circumstances of the offense, and Mr. DeRusse's history and characteristics, I have decided to depart downward on the basis of aberrant behavior, because there is absolutely no history or indication in Mr. DeRusse's background that he has ever been involved in anything of this nature or anything even remotely related to it prior to this time." (Id. at 85–86.) The court also found that Defendant "was suffering from a mental illness at the time, which does not justify what he has done, but it's a factor to take into account and, obviously, since he has been seeing mental health treatment providers and has been on medication, there have been absolutely no issues." (Id. at 86.) The court then announced its intention to sentence Defendant to a term of time served, to be followed by five years of supervised release. The court concluded that "[t]he supervised release term, which is as long a period of release as I can impose here, will allow [Defendant] the opportunity to receive correctional treatment in an effective manner and will assist with community reintegration, all in accordance with 18 U.S.C. Section 3553(a)(2)(D)." (Id. at 87.) The court further noted that this supervised release term would require Defendant to stay in Kansas, far away from the victim's home in Austin, Texas, and that the terms of his release would additionally prevent him from contacting the victim or her family. Moreover, his supervised release would require him to regularly report to his probation officer and to continue his mental health treatment. The court further noted that Defendant would suffer all of the repercussions of having a felony conviction on his record for the rest of his life.

In describing why it believed this intended sentence was appropriate, the court stated:

[T]his is not your standard kidnapping. It was the perfect storm of immaturity on the part of both Mr. DeRusse and the victim. There was family interference, mental illness that factors into this in a very big way and, frankly, just not knowing how to cope with it[,] and I think this sentence addresses every aspect of this case in a meaningful way.

(Id. at 90–91.)

The court then heard a lengthy argument from the government, which requested a guidelines-range sentence of 108 months instead and highlighted all of the reasons why the government believed a significant term of imprisonment was necessary to reflect the seriousness of the offense. The court also heard from Defendant, the victim, the victim's father, the victim's grandfather, a friend of the family, Defendant's brother, and the victim's sister (who was married to Defendant's brother, and thus Defendant's sister-in-law as well). After hearing all of the arguments and statements, the court told the victim that the kidnapping was not her fault, that it was not her family's fault, and that the court had a great deal of sympathy for the suffering everyone had experienced. The court further stated that it "would never for a second say that this [offense] was not heinous." (Id. at 163.) However, the court explained:

What I would say is that the motive behind it, as I have been able to discern it, was not an evil one. I think it was seriously off base as a result of mental illness and I think there were other maturity factors, too, that came into play there but there was no ill intent here, as far as I could tell, in terms of an end position. It was wrong. It was tragic in so many respects but it was not—there was not an evil intent, and I think that is important.

(Id. at 164.) The court then stated that, "after much, long thought," it was imposing a sentence of time served, to be followed by five years of supervised release. (Id. at 166.) This supervised release included both standard and special conditions of release, including a requirement for Defendant to continue participating in mental health treatment, prohibitions on contact with the victim and her family, and a curfew of up to six months, during which time Defendant would be restricted to his residence and might be required to wear a location-monitoring device, as directed by the probation office.

The government appeals the substantive reasonableness of the sentence imposed.¹ We review this issue under a deferential abuse-of-discretion standard and will reverse only if the sentence imposed was "arbitrary, capricious, whimsical, or manifestly unreasonable." United States v. Gantt , 679 F.3d 1240, 1249 (10th Cir. 2012). Stated differently, "we will reverse a determination only if the court exceeded the bounds of permissible choice, given the facts and the applicable law in the case at hand." United States v. McComb , 519 F.3d 1049, 1053 (10th Cir. 2007) (internal quotation marks omitted).

This is to say, we recognize that in many cases there will be a range of possible outcomes the facts and law at issue can fairly support; rather than pick and choose among them ourselves, we will defer to the district court's judgment so long as it falls within the realm of these rationally available

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