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February 20, 2002


The opinion of the court was delivered by: Gerard E. Lynch, District Judge:


This case presents a question as to the circumstances under which a District Court is authorized to depart from the sentencing range presumptively applicable under the Sentencing Guidelines on grounds of an extraordinary physical impairment.

Lucila Jimenez stands before the Court for sentencing, following her plea of guilty to one count of illegally reentering the United States after deportation in violation of 8 U.S.C. § 1326 (a) and (b)(2). It is undisputed that under the United States Sentencing Guidelines, her adjusted offense level is 21 and her criminal history category is IV, yielding a sentencing range of 57 to 71 months' imprisonment.

That somewhat severe sentence for illegal reentry is the product primarily of two factors. First, the offense level is substantially increased under U.S.S.G. § 2L1.2 (b)(1)(A)(ii) because the original deportation followed conviction for a "crime of violence." The crime in question was burglary, which is defined as a crime of violence for these purposes by Application Note 1(B)(ii)(II) to that section. Second, Jimenez has an extensive criminal record, including a prior conviction for illegal reentry and a number of narcotics offenses.

Under these circumstances, the harsh sentence provided by the Guidelines would ordinarily be completely warranted. I am sympathetic to Jimenez's desire to make a better life for herself and her children in this country. But that desire does not justify' illegal immigration to the United States, let alone criminal reentry following an initial deportation. Moreover, while in the United States, Jimenez has not conducted herself as an undocumented but productive member of society. Instead, she has repeatedly chosen to violate the law, and has apparently supported herself and her family largely through criminal acts. She served nearly three years in prison for convictions, arising from separate incidents, of criminal possession of a half kilogram of cocaine and burglary of a dwelling, before being deported to the Dominican Republic in 1993. Within a year, while apparently still on parole from these convictions, she was apprehended in Puerto Rico, sentenced to prison for illegal reentry, and eventually deported. In 2000, having yet again returned to the United States illegally, she pled guilty to another narcotics charge in New York State court, and failed to appear for sentencing. Repeated prison sentences have failed to deter her from violating United States law, and a substantial term of imprisonment is unquestionably appropriate.

Jimenez has argued for a departure on two grounds, neither of which is persuasive to me. First, this is not a case for departure for diminished capacity. That departure only applies where the defendant "committed the offense while suffering from a significantly reduced mental capacity." U.S.S.G. § 5K2. 13. While this language alone specifies only a temporal connection between the reduced mental capacity and the commission of the crime, logic suggests that mere temporal coincidence is insufficient, and that some degree of causal link between the diminished capacity and the criminal act is required. The full text of § 5K2. 13 supports this conclusion, as the Guideline provides that where a departure is warranted under this section, "the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense" — suggesting that where there was no such contribution, no departure is warranted. Accordingly, courts have repeatedly held that a departure on this ground requires two elements: "reduced mental capacity and a causal link between that reduced capacity and the commission of the charged offense." United States v. Prescott, 920 F.2d 139, 146 (2d Cir. 1990); see also United States v. Piervinanzi, 23 F.3d 670, 684 (2d Cir. 1994); United States v. Leandre, 132 F.3d 796, 803-05 (D.C. Cir. 1998); United States v. Cantu, 12 F.3d 1506, 1515 (9th Cir. 1993); United States v. Lauzon, 938 F.2d 326, 330-31 (1st Cir. 1991). In this case, Jimenez cannot even establish synchronicity, as her mental impairment, described at greater length below, resulted from events in 2001, long after she had returned to the United States after her most recent deportation.

Second, this is not a case for departure for extraordinary family circumstances under U.S.S.G. § SH1.6. I recognize that extraordinary family responsibilities can be a ground for departure, if only in "exceptional circumstances," United States v. Faria, 161 F.3d 761, 762 (2d Cir. 1998). What family circumstances qualify as extraordinary is necessarily a highly fact-specific, and somewhat subjective, matter. Jimenez is not merely ("merely") a single mother with three children who will suffer grievously from her absence. One of her children suffers from significant disabilities, and the family members who are able to take over their care are themselves so poor that they have been unable to maintain a household in the United States for their own children. Defendant's case is thus more extreme than most, and might justify a departure. But if that were the only ground for departure, I would decline to depart, because the sentence is otherwise justified, and because defendant's repeated criminal acts and involvement with narcotics sets a terrible example for her children and raises questions about her suitability as a parent that offset some of the advantages to them of her presence.

However, this case is truly extraordinary, and requires a departure, on a different ground. Since this crime was committed, and since defendant's other offenses, she has suffered a grievous physical injury in the form of a brain aneurism, that leaves her literally a different person than the one who committed those past offenses. She is mentally and physically weaker, and constitutes significantly less of a threat of law violation, than was the case previously. The undisputed medical evidence is that as a result of a bleeding artery in her brain, which required emergency neurosurgery to correct, Jimenez suffers from severe memory loss (to the point of occasional difficulty remembering her name), loss of strength in her right arm, headaches and blurred vision. In addition, apart from purely physical symptoms, Jimenez suffers from psychotic disorders including hallucinations. While Jimenez has had a hard life, including physical abuse during childhood, there is no evidence that these symptoms were present before her brain injury. Finally, treatment of these psychotic symptoms requires Jimenez to consume psychotropic drugs, which themselves have debilitating side effects. (2/4/02 Letter of Jennifer Brown to Court, Exh. C.)

The Guidelines provide that "[p]hysical condition . . . is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range." U.S.S.G. § 5H1.4 (emphasis added). However, as with other such "discouraged" grounds for departure, a departure is permitted for physical impairment where such a factor is present "to an exceptional degree." United States v. Koon, 518 U.S. 81, 95-96 (1996). Indeed, § 5H1.4 expressly recognizes that "an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range.

There is, however, no basis in law for the Government's contention. First, the specific language of § SH1.4 not only fails to mention any such limitation, but appears expressly to reject it. The only example given in the Guidelines of circumstances in which a physical impairment would justify a departure is not one in which a prisoner's health would be threatened by the inability of prison authorities to provide adequate health care, but instead suggests a completely different rationale. The example instructs that departure would be warranted because "in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment." U.S.S.G. § SH1.4. This suggests a rather different, and penologically quite sound, rationale for departure. Where an extremely infirm defendant is so incapacitated that the ordinary purposes of incapacitation and deterrence of recidivism do not justify the expense of extended incarceration, some lesser degree of punishment is permissible, and indeed specifically authorized, by the Sentencing Commission.

The Government attempts to support its radical revision of the Guidelines' text by citation to Second Circuit authority, but the language it quotes is ripped from context, and the cases it cites are inapposite. Indeed, a close comparison of the actual cases with the Government's citation emphasizes the need for care in assessing over-enthusiastic arguments (whether from prosecutors or from critics of the Guidelines) that the Guidelines narrowly restrict a sentencing court's ability to depart. Casual citation of dicta in cases affirming sentencing judges' refusals to depart should not be permitted to grow gradually and unjustifiably into "law" that prohibits departure or restricts departures that the text of the Guidelines actually encourage.

The Government asserts that under Second Circuit law, "a touchstone for determining whether a particular impairment qualifies as `extraordinary' is whether the impairment adequately can be cared for by the Bureau of Prisons." (2/20/02 Letter of AUSA Robin Linsenmayer, at 2.) The root of the line of authority supposedly supporting this proposition is United States v. Altman, 48 F.3d 96 (2d Cir. 1995). The passage cited by the Government is, to begin with, completely dictum. Having reversed some of defendant's convictions, and remanded for resentencing, the Court of Appeals addressed a number of sentencing issues. With respect to a possible downward departure on health grounds, the defendant argued that the sentencing court had failed to recognize its power to depart on this ground. The Court of Appeals rejected the argument, noting that "the health problems cited by the defendant simply need monitoring, and Altman does not challenge the district court's finding that the Bureau of Prisons would be fully able to monitor his health. We can conclude that the district court did not consider Altman to have an extraordinary physical impairment." Id. at 104. Thus, in Altman, the Second Circuit's actual ruling was that the district court had recognized its authority to decline to depart, and had in fact declined to do so — leaving the Court without jurisdiction to address the merits of the departure application, which was in any event mooted by the reversal and remand for resentencing. Moreover, the Court did not purport to address the circumstances under which a departure on health grounds would or would not be appropriate, merely noting that the district court had not found Altman's impairments "extraordinary" because they were monitorable. Indeed, the Court invited the district court "to consider the current state of Altman's health on resentencing." Id. The Court was not presented with, and did not address, the circumstances presented by this case, or by the example cited by the Commission in the text of § 5H1.4.

The Government cannot be blamed, perhaps, for misciting Altman, as the Second Circuit itself did the same in dictum in United States v. Persico, 164 F.3d 796 (2d Cir. 1999). Here, again, the Court was not reviewing and rejecting a reasoned departure under § SH1.4. Instead, it addressed an effort by one Fusco to withdraw his plea. Concluding that Fusco was really seeking to "renegotiate the length of [his] previously bargained-for sentence," the Court noted that the district court had properly concluded that its task was to decide whether to depart, in which case it would reject the plea bargain and impose a lower sentence. Id. at 806. However, the judge declined to depart and imposed the agreed sentence. Somewhat dubiously assuming that the refusal to depart was reviewable, the Court of Appeals held that the judge had "acted well within his discretion" in declining to depart. Id. Without addressing the nature of Fusco's physical impairments, or his reasons for suggesting they warranted departure, the Court simply noted that the "standards for a downward departure on medical grounds are strict," citing § 5H1.4 and Altman, and misdescribing Altman in a ...

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