Eric and Arias for which he was paid $50. Allen also stated that on one occasion, Eric asked him if he could get crack cocaine. Allen obtained the crack from another individual and then sold it to Eric. For this transaction, Allen received $60. With regard to the Ecstasy, Allen informed the ATF that he was paid $100 for arranging the sale between Eric and Tito.
Offense Level Computation*fn2
Defendant pled guilty to five separate counts, charging him with dealing in drugs and firearms. In calculating the offense level, these counts are divided into two groups. Group I, consisting of Counts One and Two (the firearm counts) are grouped together pursuant to § 3D1.2(d) because the offense behavior was continuous in nature and the offense guideline is written to cover such behavior. Thus, the base offense level for these two offenses — one charging conspiracy to transport and receive firearms in interstate commerce and the other charging the sale of five firearms without a license — is found at § 2K2.1. Because the offense involved a firearm described in 26 U.S.C. § 5845 (the Harrington and Richardson .410 caliber shotgun) and one described in 18 U.S.C. § 921(a)(30) (the Ruger .22 caliber rifle), the base offense level is 18 pursuant to § 2K2.1(a)(5). This level is increased by two levels (to 20), pursuant to § 2K2.1(b)(1)(A), because the offense involved five firearms.
Counts 4, 5 and 6, are grouped pursuant to § 3D1.2(d) because the offense level is determined largely on the basis of drug quantity. The base offense level for Group II is found in § 2D1.1. Here, the offense involved 63 grams of crack cocaine and 25 grams of Ecstasy. Converting both to their marijuana equivalents results in 1,260 and 12.5 kilograms of marijuana for the crack cocaine and the Ecstasy, respectively. Because the drug offenses involved the equivalent of 1,272.5 kilograms of marijuana, the base offense level for Group II is 32 pursuant to § 2D1.l(c)(4). This level is decreased by 2 levels (to 30) pursuant to § 2Dl.l(b)(6) because Allen has met the five criteria set forth in § 5C1.2 for "safety valve" treatment.
In sum, the base offense levels for Groups I and II are 20 and 30, respectively. The multiple count adjustment provisions do not require any additional units be added to the higher level because the gap between Group I and Group II is more than 9. See § 3D1.4(c) ("Disregard any Group that is 9 or more levels less serious than the Group with the highest offense level."). Thus, the final offense level is 30 which is decreased by three levels (to 27) pursuant to § 3E1.1(a) and (b)(2), in recognition of Allen's acceptance of responsibility resulting primarily from his guilty plea.
Criminal History Category
Because Allen has no prior criminal convictions he has zero criminal history points, placing him in Criminal History Category I.
Applicable Guidelines Range
The sentencing guideline range for offense level 27, Criminal History Category I, is 70-87 months in custody.
Defendant has moved for a downward departure on the ground that his mental and emotional condition takes his case outside the heartland of gun and drug distribution cases. See September 20, 2002 Letter from Martin Stolar ("Stolar Letter"). The Government initially assumed that defendant was moving for a diminished capacity departure under § 5K2.13 and vigorously opposed a departure solely on that ground. See September 24, 2002 Letter from AUSA Bret Williams. I notified the parties that I would consider a possible departure under § 5K2.0 and solicited further briefing. Defense counsel decided to forego additional briefing, instead relying on his September 20 letter. The Government, however, submitted further argument opposing a downward departure pursuant to § 5K2.0. See November 11, 2002 Letter from AUSA Bret Williams. Having considered all three letters, and attached exhibits, I find that a combination of defendant's immaturity, his personality defects, and his subnormal intellectual functioning at the time of the offense warrants a § 5K2.0 departure. Before explaining the appropriate grounds for departure, I shall briefly discuss why the diminished capacity ground for departure does not apply to Allen.
The diminished capacity departure, found at § 5K2.13, provides as follows:
A sentence below the applicable guideline range may
be warranted if the defendant committed the offense
while suffering from a significantly reduced mental
capacity. However, the court may not depart below the
applicable guideline range if (1) the significantly
reduced mental capacity was caused by the voluntary
use of drugs or other intoxicants; (2) the facts and
circumstances of the defendant's offense indicate a
need to protect the public because the offense
involved actual violence or a serious threat of
violence; or (3) the defendant's criminal history
indicates a need to incarcerate the defendant to
protect the public. If a departure is warranted, the
extent of the departure should reflect the extent to
which the reduced mental capacity contributed to the
commission of the offense.
In accordance with United States v. McBroom, 124 F.3d 533 (3d Cir. 1997), Application Note 1 now recognizes both a cognitive and a volitional prong to the diminished capacity departure by defining "significantly reduced mental capacity" to mean a "significantly impaired ability to (A) understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the defendant knows is wrongful." Allen does not satisfy either prong.
Defendant was evaluated by Alan M. Goldstein, Ph.D, a certified psychologist, on three separate occasions and a report on defendant's mental state was prepared. See Forensic Psychological Evaluation, Ex. A to Martin Stolar's September 20 Letter (the "Report"). In his Report, Dr. Goldstein states that "[Allen] readily admits that he was aware of the illegality of his actions as well as its wrongfulness." Report at 7. For this reason, defendant fails the cognitive prong. Moreover, there is nothing in Dr. Goldstein's report that would indicate a volitional impairment such that defendant could not help himself from committing the instant offenses. Nor can I imagine any impairment that would compel a person to act as a middleman in the exchange of contraband. Thus, defendant fails the volitional prong as well.
Additionally, § 5K2.13 may not apply at all because firearm offenses represent a serious threat of violence and, as such, may disqualify a defendant from a diminished capacity departure regardless of mental condition. For these reasons, defendant is not entitled to a diminished capacity departure under § 5K2.13.
Nonetheless, defendant's limited mental capacity, especially his immaturity, does take his case outside the heartland of drug and gun distribution cases. The Sentencing Reform Act of 1984 requires a sentencing court to impose a sentence within the range prescribed by the Guidelines "unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b). Moreover, in Koon v. United States, 518 U.S. 81, 113, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), the Supreme Court held that "[i]t has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and punishment to ensue." See also United States v. Payton, 159 F.3d 49, 60 (2d Cir. 1998) ("Realizing some cases will fall outside the heartland of typical cases, Congress entrusted sentencing courts with discretion to take into account specific characteristics of the offender.").
"[Section] 5H1.1 prohibits departures based on age `except in extraordinary circumstances.'" United States v. Sally, 116 F.3d 76, 78 (3d Cir. 1997) (quoting United States v. Shoupe, 929 F.2d 116, 120 (3d Cir. 1991)). The same holds true for departures based on physical condition. See § 5H1.4. Because age and physical condition are discouraged factors, a court "should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present."*fn3 Koon, 518 U.S. at 96, 116 S.Ct. 2035 (emphasis added). The following summary of Dr. Goldstein's Report provides ample basis to find defendant's limited mental capacity, combined with his immaturity, sufficiently extraordinary to warrant a departure.
At the age of fourteen, defendant was involved in an automobile accident causing him serious head injury. See Report at 3. Defendant suffered neurological impairment and, as a result, qualified for Social Security disability payments due to neurological dysfunction. See id. He was also placed in special education classes and was required to repeat the ninth grade. See id. At present, however, defendant's performance on various IQ tests does not suggest the presence of an underlying neurological disorder. See id. at 8.
While the effects of this accident on Allen's emotional and intellectual development cannot be known, defendant is certainly in the borderline range with respect to intellectual capacity. In 1998, defendant's full scale IQ was 94 while subtest scores ranged from mildly mentally retarded to average. See id. at 3. An educational evaluation conducted at that time revealed "very significant memory deficits." Id. In 2002, Dr. Goldstein administered an IQ test and obtained Verbal, Performance and Full Scale IQ scores of 86, 89 and 87, respectively. See id. at 8. Again, defendant's subtest scores ranged from mildly retarded to average. See id. Dr. Goldstein stated that defendant's "overall judgment or common sense falls between the borderline and the low average range." Id.
In addition to below average intelligence, defendant suffers from a number of personality defects, the most striking of which is his immaturity. In his Report, Dr. Goldstein concluded that "[a]lthough twenty years of age, his ability to relate and to understand concepts resembled more that of a fourteen or fifteen-year-old than a mature adult." Id. Defendant's immaturity was also observed by his mother who stated: "Though he is twenty-one years old, Vincent seems to me to think and behave more like a fourteen year old." September 20, 2002 Letter from Teresa Allen, Ex. B to Stolar Letter. In addition to being immature, defendant has a low self-image and is severely depressed and anxious. See Report at 8-9. Finally, a personality quirk makes Allen overly willing to please others, even if it is to his own detriment. See id. at 11. According to Dr. Goldstein, Allen's need for acceptance is so overwhelming that he is likely to be manipulated by others. See id. Dr. Goldstein opined further that
[a]lthough Mr. Allen readily admits that he was aware
of the illegality of his criminal behavior and its
wrongfulness, his cognitive limitations are such that
his ability to carefully think through the
consequences of his actions — weighing the pros
and cons of his action — would be overridden by
his need for acceptances, his desire to please, and
his passive compliance with the wishes of others.
[T]his evaluation strongly suggests that while aware
of the wrongfulness of his act, Mr. Allen's
intellectual and emotional predisposition was such
that he could easily be conjured into participating
in this criminal activity.