United States v. Flowers

• Decision Date: 22 May 2013
• Docket Number: Criminal Action No. 2:12cr142–MHT.
• Citation: 946 F.Supp.2d 1295
• Parties: UNITED STATES of America v. Kimberly Lashun FLOWERS.
• Court: U.S. District Court — Middle District of Alabama

946 F.Supp.2d 1295

UNITED STATES of America

v.Kimberly Lashun FLOWERS.

Criminal Action No. 2:12cr142–MHT.

United States District Court,

M.D. Alabama,

Northern Division.

May 22, 2013.

Kent B. Brunson, U.S. Attorney's Office, Montgomery, AL, for United States of America.

Federal Defender, Aylia McKee, Christine Ann Freeman, Federal Defenders, Montgomery, AL, for Kimberly Lashun Flowers.

OPINION

MYRON H. THOMPSON, District Judge.

Defendant Kimberly Lashun Flowers pled guilty to one count of passing a forged United States Treasury check in violation of 18 U.S.C. § 510(a)(2). Flowers entered her plea pursuant to an agreement with the government according to which the government would recommend a sentence of monitored home confinement rather than imprisonment. At sentencing, the United States Probation Department announced that, due to new financial constraints resulting from the sequestration of federal funds, the department would require Flowers to pay the cost of the monitoring of her home confinement, and this Flowers could not do because she is poor. With home confinement off the table, the government pressed the court to send Flowers to prison. Finding this result disconsonant with both the U.S. Constitution and simple fairness, the court instead imposed a below-guidelines sentence of probation without monitored home confinement. This sentence, which amounted to a ‘variance,’ took into consideration Flowers's well-documented mental illness and consequent diminished culpability, her need for treatment outside of a carceral setting, the substantial time Flowers had already spent on monitored home confinement during her pretrial supervision, and the fact that, but for her indigence, she would have received a sentence of monitored home confinement. This opinion sets forth in further detail the court's reasons for the sentence and variance imposed pursuant to 18 U.S.C. § 3553(a), which sets forth the factors to be considered in imposing a sentence.

I. BACKGROUND

A. The Offense

Flowers cashed a fraudulent United States Treasury check worth $20,380. According to Flowers, she was asked to do so by Timothy Rollins, a close friend who had lived with her when she was a child. Rollins told Flowers that the cash belonged to his girlfriend and that he needed Flowers's help in cashing the check because his girlfriend owed him money. Flowers agreed to help, and, in return for her assistance, Rollins paid her $500 out of the approximate $10,000 he received from the check.

The check was issued as part of a fraudulent tax-refund business run by another criminal defendant, Keshia Brayboy. Because it was determined that Flowers had no role in, or knowledge of, this larger fraud on the government, she was not held criminally responsible for the tax-fraud scheme.

B. Personal History and Mental Health

Dr. Adriana Flores performed a psychological evaluation of Flowers, the results of which were presented to the court through a written report and Dr. Flores's testimony at sentencing.

Dr. Flores described Flowers's childhood history as severely traumatic. Flowers's father is an alcoholic who abused her mother in shocking acts of violence. He once forced Flowers's mother to disrobe and then branded her body with a hot iron. Flowers observed this but was powerless to intervene. Another time he threatened her mother with a cocked gun. Her father was controlling and dictatorial; he would remove pieces of Flowers's mother's car so that she could not leave him. He was also mentally abusive; he called both Flowers and her mother “bitches” and other derogatory names. This history was corroborated by multiple sources, including Flowers's childhood friends.

Dr. Flores explained that this sustained history of domestic abuse created severe psychiatric problems for Flowers. She is depressed; she suffers from panic attacks and anxiety; she is suicidal. She has trichotillomania, a psychiatric disorder which leads her to pull her hair out of the top of her head. Dr. Flores also explained that there are genetic roots to Flowers's psychiatric problems on both sides of her family.

Flowers's mother reported first noticing Flowers's mental-health problems when she was ten years old; Flowers would experience dramatic mood swings and periodically isolate herself from all social interaction. Flowers tried to kill herself when she was 12 by ingesting a handful of pills from a bottle. During her 20s, Flowers's depression deepened and she expressed many times that she did not wish to continue living. She cut her wrists more than once, and, after one of these incidents, she was formally diagnosed with depression and prescribed medication. At the time of the instant offense, Flowers was not taking the medication she had been prescribed and her mental illness was untreated.

Dr. Flores explained that Flowers developed Posttraumatic Stress Disorder (PTSD) in response to her early childhood trauma, and she found that Flowers experiences flashbacks to certain abusive scenes from her past—particularly the image of her father burning her mother with an iron. According to Dr. Flores, the best indicator of the severity of Flowers's PTSD is that it has numbed her to violence against herself. Flowers was in an abusive relationship with the father of her three children for many years. He pushed her through a glass table, which left her needing 40 stitches; he jumped her and fractured her wrist; he also punched her in the face while she was driving a car, causing her to drive off the road and receive a facial laceration.

In sum, Dr. Flores diagnosed Flowers with Major Depressive Disorder (recurring, moderate), PTSD, Trichotillomania, Anxiety Disorder, and a history of Panic Disorder (in remission over the last two years). She found “the fact that Ms. Flowers meets diagnostic criteria for several comorbid conditions is reflective of a high level of psychological pathology that is likely due to her extensive trauma history throughout her life, in various forms, by multiple perpetrators (i.e. her father and her boyfriend).” Report (Doc. No. 34) Ex. 9 at 15. She further found that “Ms. Flowers' multiple psychiatric conditions render her vulnerable to poor decision making and to be easily led by others.... She is a weak-minded individual who is easily influenced, particularly if she believes she is helping someone.” Id. at 13. Dr. Flores opined that this susceptibility to the influence of others explains not only the instant offense, but Flowers's entire criminal history.

At sentencing, Dr. Flores discussed Flowers's treatment needs. She recommended that the court require Flowers to participate in mental-health treatment. She explained that a mandate would spur Flowers to initiate treatment and that once she is in treatment her symptoms should improve. Dr. Flores further opined that Flowers should receive this treatment in the community, not in prison, as the environmental stressors of incarceration would exacerbate Flowers's mental illnesses and impede her recovery.

C. Procedural History

Flowers was charged with, and pled guilty to, one count of passing a forged United States Treasury check, a violation of 18 U.S.C. § 510(a)(2). After accepting the government's motion for a one-level-downward departure, the court found Flowers to have a total-offense level of seven and a criminal-history category of IV. Flowers thus had a Sentencing Guidelines range of 8–14 months. This guidelines range put Flowers in “Zone B,” with the result that the minimum guidelines term did not have to include a term of incarceration, but instead could be satisfied by a term of probation that includes intermittent confinement, community confinement, or home detention. United States Sentencing Commission, Guidelines Manual, § 5C1.1(c) (Nov. 2012).

In its sentencing memorandum, the government recommended monitored home confinement as a substitute for imprisonment, “if applicable.” U.S.A. Mem. (Doc. No. 30) at ¶ 4. The government made this recommendation in accordance with the plea agreement, one term of which specified that, “If the Sentencing Guidelines require a sentence of imprisonment, the United States recommends the imprisonment be substituted by home detention pursuant to ... U.S.S.G. § 5C1.1(c) [Zone B] and (d) [Zone C] if applicable.” Pl. Agmt. (Doc. No. 22) at ¶ 1(c).

The United States Probation Department recommended that Flowers receive a sentence of imprisonment. In rejecting home detention, the department relied on an application note to USSG § 5C1.1, which states: “The use of substitutes for imprisonment as provided in subsections (c) and (d) is not recommended for most defendants with a criminal history category of III or above.” USSG § 5C1.1, comment. (n.1). Not only would the Probation Department not recommend home confinement, it informed the court that, even if the court ordered Flowers to serve a home-confinement sentence, the department would not pay for the required monitoring of it. The department acknowledged that it would not pay for Flowers's home confinement because of new financial constraints imposed by the ‘sequestration of federal funds.’ ¹ Flowers would have received a sentence of monitored home confinement if she paid for it herself. All parties agreed, however, that Flowers is indigent and cannot afford the $300–a–month price tag for the required monitoring of her home confinement: she is a single mother of three young children, her children's father does not pay his child-support obligation, and her total monthly cash flow is $133. Indeed, the Probation Department recommended waiving imposition of fines due to Flowers's financial condition.

Because the Probation Department refused to pay for Flowers's monitored home confinement and because Flowers could not pay the cost due to her poverty, the government deemed the home-confinement substitution “not applicable.” As such, the government refused to recommend home confinement at Flowers's sentencing. Instead,...