for this disease in her family. Her two sisters have cancer.
One child suffers from "separation anxiety" as a result of the absence
of his mother. He has been under psychiatric observation after adverse
contacts with the police.
The elderly mother of Ms. DeRoover is now caring for the children. It
seems doubtful that she could continue to carry this burden were
defendant incarcerated for a substantial period in the United States. She
herself has diabetes.
The prosecution of Ms. DeRoover has come to the attention of the
probation institution in the Netherlands. See Report of Dutch Probation,
Foreign Department, 8 December, 1998. Dutch Probation reports that "[i]n
order to prevent further damage to the children we think it is of the
utmost importance that the continuation of this situation [separating the
children from Ms. DeRoover] has to be confined to a minimum." Id. at p.
3. In conclusion it states, "We declare ourselves prepared to take care
of appropriate psychological assistance." Ibid.
The Netherlands probation system has had a great deal of experience
treating people who use or who traffic in drugs. See e.g., Lisa M.
Branculli, The War, on Drugs: Fact, Fiction and controversy, 21 Seton
Hall Legis. J. 169, 188-189 (1999). The institutions of the Netherlands,
the court judicially notices, can be trusted to carry out their
commitment to supervise and to assist Ms. DeRoover and her family.
There has been no suggestion that Ms. DeRoover has ever committed
another crime. It can be reasonably predicted that, with adequate
supervision and help, non-recidivism, the equivalent of rehabilitation,
is assured. It is highly unlikely that Ms. DeRoover will ever commit
another crime. Rehabilitation of Ms. DeRoover is extraordinary.
Availability of a job will also assist her in avoiding future criminal
conduct and in supporting her family. Extraordinary rehabilitation is an
appropriate basis for downward departure under the Guidelines. See e.g.,
United States v. Bryson, 163 F.3d 742, 749 (2nd Cir. 1998) (downward
departure is warranted if district court finds extraordinary
The special need to promptly unite Ms. DeRoover with her family is
obvious. The unique dependence of children on a defendant is a basis for
a downward departure. See e.g., United States v. Galante, 111 F.3d 1029
(2nd Cir.), reh'g en bane denied, 128 F.3d 788 (2d Cir. 1997)(approving a
district court's thirteen-level downward departure for a defendant with
two young children, ages eight and nine, who was a caregiver and the
primary earned for family); United States v. Johnson, 964 F.2d 124 (2nd
Cir. 1992)(approving a 13-level downward departure for a defendant who
had sole responsibility for raising four young children ranging in ages
from five months to six years).
The atypical nature of Ms. DeRoover's criminal conduct was caused by
temporary and extreme family stress. Aberrant behavior is a basis for a
downward departure. See e.g. Zecevic v. United States Parole Commission,
163 F.3d 731 (2nd Cir. 1998)(adopting the totality of circumstances
These findings, independently and together, are the basis for a
downward departure that does not conflict with Guidelines policy designed
to reduce sentencing disparity. All factors relied on for this downward
departure fall outside the heartland of cases contemplated by the
Guidelines, and none involve forbidden socioeconomic concerns.
Based on all the special circumstances in the case, a downward
departure from offense level 21 to level 9 is warranted and required. A
sentence within the Guidelines of five months is imposed. Any longer
sentence would lead to unnecessary further deterioration of Ms.
DeRoover's family and would endanger full rehabilitation. Three years
supervised release is imposed, but it need not be served in the United
States. A mandatory $100 special assessment is assessed.
As a condition of supervised release, Ms. DeRoover must:
1.Accept whatever psychiatric and other assistance the
Netherlands' authorities require.
2.Maintain full employment to the extent practicable.