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Examples of Departures/Variances Based on Mental Health Issues
- U.S. v. Donelli, 747 F.3d 936 (7th Cir. 2014) (26 USC § 7201, tax evasion): defendant’s sentence
affirmed because she failed to present bipolar diagnosis as a principal argument in mitigation at sentencing (thus, not triggering a court’s duty to respond under Cunningham; “a defendant relying on a personal characteristic as a mitigating factor must offer a cogent argument as to why that characteristic should be deemed a mitigating rather than aggravating factor. This principle applies equally to mental illness.”); only mention of diagnosis at trial court level was acknowledgement of a bipolar disorder diagnosis in Probation’s presentence report and defendant’s lawyer stating during sentencing hearing that her bipolar disorder coupled with her drug addiction was “not an excuse but an explanation” for her criminal behavior. Defendant’s only objection at the close of sentencing hearing was that the above- guideline sentence as inappropriate because the guidelines already account for the nature of the harm; the Judge did not mention defendant’s bipolar diagnosis at all during sentencing imposition.
- U.S. v. Flowers, 946 F. Supp. 2d 1295 (M.D. Ala. 2013): Defendant plead guilty to one count of passing a
forged US Treasury check; not culpable in a fraudulent tax-refund business (no role in; no knowledge of). Diagnosed with Major Depressive Disorder, PTSD, Anxiety Disorder, Panic Disorder, etc. Doctor opined she was “vulnerable to poor decision making and to be easily led by others . . . a weak-minded individual who is easily influenced, particularly if she believes she is helping someone.” Government rejected home confinement recommendation because Defendant’s indigence made her unable to pay for home confinement costs and recommended 14 months in prison, but trial court sentenced Defendant to probation (downward variance), informed by 18 U.S.C. § 3553(a) (“a recent amendment to the Sentencing Guidelines endorses ‘departures’ from . . . sentencing table in order to achieve a “specific treatment purpose” . . . “Although the amendments at issue here apply most clearly in the context of departures, the reasoning behind the amendments informs this court’s consideration of variance based on the factors set forth in 18 U.S.C. § 3553(a)”).
Examples of Departures/Variances Based on Mental Health Issues (Cont’d)
- U.S. v. Boutot, 480 F. Supp. 2d 413 (D. Me. 2007): Defendant, a diagnosed schizophrenic, pled
guilty to making a false statement on an ATF gun purchase application. Finding that Defendant was entitled to a downward departure under §5K2.13 (diminished capacity), and further noting that BOP refused to pre-designate the facility he would be incarcerated in, the trial court concluded a Koon departure was appropriate based on “extreme risks if incarcerated without regard for his need for psychiatric treatment.” The trial court stated that the two-week sentence (a four-level reduction) was a period “sufficiently short to avoid his potential designation with the general federal prison population and sufficiently long to impress upon him the need to conform his future conduct with the law.”
- U.S. v. Arnold, 630 F. App’x 432 (6th Cir. 2015): Sixth Circuit determined trial court abused its
discretion in imposing an upward departure in calculating Defendant’s sentence stemming from a conviction of being a felon in possession of a firearm. Trial court’s consideration that a longer sentence would increase the efficacy of his mental heath treatment was improper when imposing a sentence.
- U.S. v. DeRusse, 859 F.3d 1232 (10th Cir. 2017): Tenth Circuit affirmed trial court’s downward
variance and downward departure in sentencing (resulting in time served) based on aberrational behavior, following defendant’s guilty plea to one count of kidnapping, finding that a downward variance under § 3553(a)(1) does not need to be governed by the same standards as downward departure under § 5K2.20; rather, § 3553(a)(1) variance is based simply on the court’s discretionary authority to consider “the nature and circumstances of the offense and the history and characteristics of the defendant.” Government failed to adequately respond to harmless error regarding the downward departure, noting the redundant nature of the variance and departure in this case.
Hypothetical
- Client aged 45 contacts you because he received a grand jury subpoena DUCES TECUM from
SDNY for Swiss banking and insurance documents. Client tells you he lives in another state and hasn’t filed returns in more than a decade. He began working for his father in wholesale flooring business for major retailers and was persuaded by father to stop filing. He uses NV corps to receive income, buy gold coins, and protect his privacy by using Swiss banks—the very banks listed on the subpoena. Client manages flooring installation crews treated as independent contractors, some of whom may be undocumented. Client and a prior romantic interest (who still remain friends) explain Client’s father was a domineering non-filer who controlled Client, who was conflict averse. Dad lived in Client’s home for the last fifteen years before he died last year. Father’s craziness drove former romantic interest away. Client’s most recent girlfriend cleaned out Client’s bank account with $300K, took another $250K in gold coins, and moved to live with her brother in another state. Records subpoenaed will reveal Client has accumulated $1 million in Swiss bank and insurance accounts. Client never married and has no children.
- Client provides letter from most recent girlfriend excoriating Client’s dad as domineering and
responsible for Client’s tax and other problems, including “troubles” with their relationship. Client provides literature from attorneys and tax protest groups claiming no law requires private citizens to pay income taxes, only gold and silver coins are lawful money as shown by old federal reserve notes which have legend “...this note is legal tender for all debts public and private and is redeemable in LAWFUL MONEY at any federal reserve bank.” Client also presents a book claiming 16th amendment was never ratified, and attorney opinions provided by various sources, which were introduced to Client by dad.
