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UNITED STATES v. ROSE

May 9, 1995

UNITED STATES OF AMERICA, against JOBIM ROSE, Defendant.


The opinion of the court was delivered by: JACK B. WEINSTEIN

 Jack B. Weinstein, Senior United States District Judge.

 I. INTRODUCTION

 The defendant has assumed the role of surrogate father to four young second cousins, who are being raised by his maternal grandmother. His relationship with these children is a proper basis for departure under U.S.S.G. § 5H1.6 ("family ties and responsibilities"). That the children are neither his biological nor legal offspring does not change this result.

 II. FACTS

 The defendant, a 27-year-old African-American, pled guilty to interstate receipt of a firearm. 18 U.S.C. § 922(a)(3). He had no prior criminal record.

 Raised by his maternal grandmother, the defendant had only sporadic contact with his parents during his formative years. Now the grandmother, 69 and retired, with no pension or Social Security, is raising four of the defendant's second cousins. The children's mother is an addict who is unable to care for them; their fathers have deserted.

 To assist his grandmother, the defendant has taken a second job while satisfactorily attending college. Although he lives elsewhere, the defendant contributes to his grandmother's household budget. He also assists her by guiding and serving as a role model for the four children.

 III. LAW

 A. Extraordinary family circumstances

 Guidelines departures based on extraordinary family circumstances are permitted. See, e.g., United States v. Johnson, 964 F.2d 124, 129 (2d Cir. 1992); United States v. Alba, 933 F.2d 1117, 1122 (2d Cir. 1991); United States v. Sharpsteen, 913 F.2d 59, 63 (2d Cir. 1990); United States v. Ekwunoh, No. 91- CR-684, 1994 U.S. Dist. LEXIS 17948 (E.D.N.Y. Dec. 9, 1994); United States v. Gerard, 782 F. Supp. 913, 914-15 (S.D.N.Y. 1991); United States v. Handy, 752 F. Supp. 561, 563-65 (E.D.N.Y. 1990). As the Johnson court noted, "the departure [is] not on behalf of the defendant . . . but on behalf of [the] family." 964 F.2d at 129. See also Eleanor Bush, Considering the Defendant's Children at Sentencing, 2 Fed. Sent. Rep. 194 (1989)(describing desire not to harm innocent parties as "implicit" but universal sentencing consideration).

 The "family circumstances" caselaw of this and other circuits recognizes that "courts should . . . attempt to build procedures, dispositions, and structures that foster extended-family and community responsibility." Gary B. Melton, Children, Families, and the Courts in the Twenty-First Century, 66 S. Cal. L. Rev. 1993, 2004 (1993). Given this rationale, no one type of relationship is required to trigger the departure power. See, e.g., Alba, 933 F.2d at 1122 (recognizing effects of incarceration on defendant's children, parent, and grandparent); cf. United States v. Sclamo, 997 F.2d 970, 972 (1st Cir. 1993)(approving family circumstances departure based on defendant's "special and crucially important relationship" with the son of the woman he lived with).

 That most "family circumstances" departures involve small children reflects the reality that children at crucial stages of development wither without adult nurture. See, e.g., United States v. Naugle, 879 F. Supp. 262, 267, 1995 U.S. Dist. LEXIS 3613, at *17 (E.D.N.Y. 1995). Whether the defendant is a parent in the biological or legal sense, or has become essential to the child's development in some other manner, cannot be decisive. To hold otherwise would be to penalize children for circumstances not of their own making.

 As the Supreme Court has noted in striking down statutes that discriminate against illegitimate children, accidents of birth may not be transformed into disadvantage through operation of law. See Mills v. Habluetzel, 456 U.S. 91, 97, 71 L. Ed. 2d 770, 102 S. Ct. 1549 (1982); Gomez v. Perez, 409 U.S. 535, 538, 35 L. Ed. 2d 56, 93 S. Ct. 872 (1973). The guiding principle of a century of civil ...


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