Opinion
Criminal No. 00-158(1) (JRT/FLN).
June 28, 2004
Lisa A. Biersay, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Minneapolis, MN, for plaintiff.
Richard H. Kyle, Jr., KYLE LAW OFFICE, Minneapolis, MN, for defendant.
OPINION ON REMAND
Defendant Craig Ramon Chapman was convicted following trial of conspiring to distribute marijuana and he was sentenced to a 41-month term of imprisonment. Prior to the sentencing, defendant moved for a downward departure pursuant to section 5K2.0 of the United States Sentencing Guidelines on the ground of extraordinary post-offense rehabilitation. The Court denied the downward departure motion, finding that defendant did not qualify for the downward departure because he had not accepted responsibility for the crime for which he was convicted. The Eighth Circuit affirmed the conviction, but remanded for this Court to assess whether defendant's post-offense rehabilitation efforts were atypical, thus warranting a downward departure under USSG § 5K2.0, despite not accepting responsibility. The Eighth Circuit also noted a clerical error in the judgment and commitment order, which will be corrected in a revised judgment and commitment order filed concurrently with this Opinion.
EVIDENCE
The following facts were determined at an evidentiary hearing held during the sentencing hearing at defendant's request. After defendant's arrest on May 12, 2000, he decided to change his life and reform his behavior. Chapman became very involved in his church, the Covenant of Life World Outreach Church. Joyce Lester, co-minister and co-founder of the church, observed Chapman closely for one year and licensed him as an associate minister of the church. Chapman teaches teenagers in the church and directs the men's ministry. Ms. Lester testified that Chapman "is a man who is about helping the community, helping people, and in a positive way. And he is very serious about the ministry [to which] he has been called." (Transcript of Sentencing Proceedings [Docket No. 277] at page 10.)
In addition, Joe Jones, a former business acquaintance of Chapman's, testified that Chapman is assisting Jones in his real estate business and has been involved as a volunteer in Brother's Keepers Men's Network. Chapman has offered to become involved on a full-time basis and has become, according to Jones, "a real inspiration" and "quite a role model" for the young adults in that organization.
Finally, Amanda Chapman, who the defendant married after his arrest in this case, testified that Chapman is rehabilitated and has "cultivated into a new creature," avoiding smoking, drinking and swearing. She called him a changed man who is better and stronger and who has a "divine mission to serve God."
The defendant has never admitted committing the crime for which he has been convicted in this case and did not qualify for the reduction of his offense level for acceptance of responsibility. The Court also notes that defendant did not undertake any of the rehabilitative activities for which he is seeking a downward departure until after his arrest on May 12, 2000.
ANALYSIS
A defendant's extraordinary post-offense rehabilitation may be an acceptable basis for departing from the applicable guideline range. United States v. Kapitzke, 130 F.3d 820, 823 (8th Cir. 1997). "[T]he acceptance-of-responsibility guideline [however] already takes post-offense rehabilitation efforts into account, [and] departure under § 5K2.0 is warranted only if the defendant's efforts are exceptional enough to be atypical of the cases in which the acceptance-of-responsibility reduction is usually granted." United States v. DeShon, 183 F.3d 888, 889 (8th Cir. 1999) (citations omitted).
An example of exceptional and atypical post-offense rehabilitation that the Eighth Circuit has upheld is found in DeShon in which a departure was upheld where the defendant radically altered his lifestyle, and renewed his life in the church. 183 F.3d at 889. Importantly, the defendant in that case did not deny any of his actions and admitted in his church and in his community that he had done something wrong. Id.
In contrast, the Eighth Circuit has held downward departures not warranted where the post-offense rehabilitation is not extraordinary, and where the conduct essentially amounts to "leading a lawful life." United States v. Patterson, 315 F.3d 1044, 1048 (8th Cir. 2003); United States v. Allery, 175 F.3d 610, 614 (8th Cir. 1999) (holding district court abused its discretion by granting downward departure when defendant did nothing more than obey the law since his conviction). See, e.g., United States v. Swick, 334 F.3d 784, 789 (8th Cir. 2003) (commending defendant's efforts, but reversing downward departure where the efforts were not begun until after his arrest; some of the "rehabilitative" behavior was required by the conditions of his pretrial release; and defendant failed to accept responsibility for his actions and committed perjury).
The Eighth Circuit, in remanding this case, explained that "truly exceptional rehabilitation alone can, in rare cases, support a downward departure even when the defendant does not accept responsibility." United States v. Chapman, 356 F.3d 843, 847 (8th Cir. 2004). The Circuit clarified that the Court may take into account the fact that a defendant has never accepted responsibility for a crime, even though it is now clear that failure to accept responsibility can no longer be a bar to the granting of a downward departure. Id. at 848.
After carefully considering defendant's efforts at rehabilitation, the Court does not find that this is one of the "rare cases" in which a downward departure based on post-offense rehabilitation is justified despite the failure to accept responsibility, and the post-arrest commencement of efforts at rehabilitation. The Court therefore will not change its denial of the motion for a downward departure. Although the defendant's post-arrest rehabilitation is commendable, it is not "atypical" in the sense required by the Circuit. Informing this decision are the facts that the defendant has not admitted responsibility for selling marijuana and that rehabilitation began only after his arrest. There is no doubt that defendant has become a better person through involvement in his church and a mentoring organization, and his attention to his family. The Court recognizes that these are very positive factors, and sincerely hopes that these efforts continue. These factors, however, do not constitute "atypical" rehabilitation as outlined by the Eighth Circuit. E.g., Patterson, 315 F.3d at 1045 (remanding for re-sentencing where defendant evidenced many positive factors, such as helping her grandparents at their farm, and becoming an attentive mother, but these factors were not "atypical").
Therefore, after reconsideration as directed by the Eighth Circuit, the Court finds a downward departure on the basis of post-offense rehabilitation not warranted. The Court's sentence, therefore, remains unchanged. However, a revised judgment and commitment order will be filed to correct the applicable penalty provision of 21 U.S.C. § 841(b)(1)(D).