Opinion
No. 00-40059-01-RDR.
January 24, 2001.
MEMORANDUM AND ORDER
This order is issued to record and further explain the court's decision to make a downward departure from the Guideline range during defendant's sentencing hearing in the above-captioned case. Defendant was sentenced following a guilty plea to the charge of assault with a dangerous weapon. There were no objections by either side to the facts stated in the presentence report.
The total offense level originally stated in the presentence report was 21. The criminal history category was I. The Guideline range in this case was 37-46 months. Defendant sought a departure to a sentence of probation. The court sentenced defendant to a term of 12 months — six months to be served in detention and six months to be served in home detention as a condition of supervised release. The court made the downward departure on the basis of three factors.
First, the court considered the victim's wrongful conduct. Reviewing the factors recommended for consideration in U.S.S.G. § 5K2.10, the court noted that while the victim (defendant's husband) is not a large man, he appears larger and stronger than the defendant and was admittedly at fault for prior instances of physical spousal abuse — two incidents in 1999 and one some time earlier. Defendant and the victim have been married for nine years. They have had an argumentative relationship. Although neither spouse admits fear of the other, the examining psychologist in this case testified that he considered the level of abuse to be high in this marriage. The psychologist testified that defendant and Mr. Diamond had a high tolerance for abuse. The defendant and the victim had counseling before the crime in this case. It is unclear how helpful this counseling has been, but it demonstrates an effort by defendant to prevent confrontation.
The crime in this case occurred at approximately 3:50 a.m. the morning after Mother's Day. Earlier, defendant and the victim had gone out to eat with friends for Mother's Day. They argued about the victim spending time away from home late at night. Nevertheless, after they returned home, the victim left for a short errand about 9:30 p.m. He did not return home until 3:50 a.m. When Mr. Diamond returned, defendant, who apparently was asleep on the couch, awoke as he entered the house and shot him. At the time he was shot, the victim did not present a great danger to defendant. However, given the time of night Mr. Diamond entered the house, defendant may have been startled and could have perceived some danger. It is clear that at the time he was shot the victim was engaged in aggravating conduct which exacerbated the abusive relationship of which he was a part. In light of all of these circumstances, the court believes a downward departure is appropriate for victim misconduct in combination with the other factors the court shall proceed to discuss.
The second grounds for departure is the unique position of the victim in this case. Here, the victim has forgiven the defendant. He apparently was not in favor of charges being filed. He did not want punishment for the defendant for many reasons — one of which was that it would be a detriment to him, his career and his efforts to raise their three daughters. Mr. Diamond testified that if his wife was given a prison sentence, he would have to terminate his career in the Army so that he could find another way to raise and support his young daughters. It is unusual for the court to have to punish a defendant in a way which the victim believes will cause the victim punishment. This circumstance removes this case from the heartland of cases before the court.
Finally, the family circumstances in this case are somewhat extraordinary. The court recognizes that family circumstances are not ordinarily relevant in deciding whether to make a downward departure. U.S.S.G. § 5H1.6. In this instance, the court would not depart downward if family circumstances were the sole grounds for doing so. But, in combination with the factors already discussed and the absence of violent or other criminal conduct in defendant's background, we believe it is appropriate to consider family circumstances in this case. See U.S. v. Tsosie, 14 F.3d 1438, 1441-42 (10th Cir. 1994); U.S. v. Pena, 930 F.2d 1486, 1494-95 (10th Cir. 1991). As mentioned already, defendant has three young daughters from whom she has never been separated. The upbringing of these children may be severely impacted by the lengthy incarceration of their mother. Such incarceration could produce upheaval in their lives in many ways which could be detrimental — particularly if their father is required to change careers and must attempt to raise the children alone.
Because of the factors listed above, the court determined that it was inappropriate to treat this case as a normal aggravated assault case. The degree of departure is one in which the court attempted to strike a middle ground between the offense of aggravated assault and minor assault. The court began with the base offense level for minor assault, which is six. Then, the court added the increments for discharging a firearm (five levels) and causing serious injury (four levels) recommended in the guideline for aggravated assault. See U.S.S.G. § 2A2.2. Subtracting three levels for acceptance of responsibility, the court reached a total offense level of twelve and a Guideline range of 10 to 16 months. Upon these calculations, the court reached a final sentence of 12 months — six months to be served in a jail-type facility and six months to be served in home detention as a condition of supervised release.
IT IS SO ORDERED.