                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-16-2002

USA v. Dominguez
Precedential or Non-Precedential: Precedential

Docket No. 01-1855




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PRECEDENTIAL

       Filed July 16, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1855

UNITED STATES OF AMERICA

v.

ISABEL DOMINGUEZ,
Appellant

Appeal from the United States District Court
for the District of New Jersey
(D.C. Crim. No. 99-cr-00475)

District Judge: Honorable Dickinson R. Debevoise

Argued April 18, 2002

Before: NYGAARD and AMBRO, Circuit Judges,
and O’NEILL, District Judge.*

(Filed July 16, 2002)

       George S. Leone
       Michael Martinez (Argued)
       Office of United States Attorney
       970 Broad Street
       Room 700
       Newark, NJ 07102
        Counsel for Appellee
_________________________________________________________________

* Honorable Thomas N. O’Neill, Jr., of the United States District Court
for the Eastern District of Pennsylvania, sitting by designation.




       David S. Zapp, Esquire (Argued)
       7 East 94th Street
       New York, NY 10128
        Counsel for Appellant

OPINION OF THE COURT

NYGAARD, Circuit Judge:

I.

The sole issue in this appeal is whether the District Court
erred by concluding that it lacked discretion to grant Isabel
Dominguez a downward departure from the Sentencing
Guidelines based upon her family circumstances. Because
a District Court has the discretion to grant a downward
departure when the family circumstances lie outside the
parameters of what is ordinary, when that departure would
not conflict with the purposes underlying sentencing, we
will vacate the sentence and remand the matter to the
District Court for re-sentencing.

II.

Isabel Dominguez is an unmarried woman in her mid-
forties, and the only child of Cuban immigrants. During her
brief tenure as a bank branch manager, she acceded to a
customer’s request to open accounts under different names
and to omit filing certain reports of deposits. When the
customer was indicted for money laundering, Dominguez
was indicted for, and convicted of, conspiring to structure
financial transactions to avoid reporting requirements, in
violation of 18 U.S.C. S 371. She was sentenced to thirty-
seven months imprisonment and three years supervised
release.

Dominguez has no criminal record, nor was there
evidence that she profited in any way from her assistance
to the customer. To the contrary, even the government
conceded it was difficult to understand Dominguez’s
motivation and speculated that, because the bank

                                2


pressured its branch managers to bring in business and
Dominguez was having trouble bringing in new accounts,
she acceded to the customer’s demands out of concern for
her job security.1

Dominguez resided with her elderly parents, who were
physically and financially dependant upon her. The record
indicates that they could not afford paid assistance. Her
father had undergone brain surgery and had suffered a
heart attack in 1998. He is non-ambulatory, obese,
incontinent, has significantly impaired mental ability, and
experiences difficulty speaking. Dominguez’s mother has
severe arthritis and heart problems which prevented her
from physically caring for her husband (e.g., she cannot lift
the amount of weight necessary to assist him), and,
although she is seventy-five years old, is now forced to work
to support him. As the District Court found, these family
circumstances were "truly tragic."2

The District Court concluded, however, that it had no
choice but to sentence Dominguez to the imprisonment
term fixed by the Sentencing Guidelines:

       Applying United States v. Sweeting, 213 F.3d 95 (3d
       Cir. 2000), I conclude that I lack discretion to grant
       downward departure in the circumstances of this case.
       If I had such discretion I’d be inclined to depart by four
       levels so as to reduce the period during which
       defendant’s parents would remain without her
       assistance. Lacking such discretion, the [G]uideline
       calculations contained in the presentencing report will
       be applied.

SHT at A51.

III.

As a preliminary matter, we note that we may review a
refusal to depart downward when it is based on the court’s
_________________________________________________________________

1. See Transcript at 715. See also PSR at PP 8, 36 (noting that the bank
"placed a heavy emphasis on sales and Dominguez’s reviews were based
in large part on business she acquired for the bank").

2. Sentencing Hearing Transcript ("SHT") at A50.

                                3


erroneous belief that it lacked discretion. See, e.g., United
States v. Gaskill, 991 F.2d 82, 84 (3d Cir. 1993) (citing
United States v. Higgins, 967 F.2d 841, 844 (3d Cir. 1992);
18 U.S.C. S 3742(a)(2). Our review of the District Court’s
legal conclusion that it lacked the discretion to consider a
departure based on family circumstances is de novo. See,
e.g., Gaskill, 991 F.2d at 84-86.

IV.

A.

It is well within a District Court’s discretion to grant
downward departures. Indeed, the only relief from the
Guidelines’ formulaic rigidity is the ability of the sentencing
court to take into account the circumstances particular to
the case before it.3 Consequently, although the ordinary
impact of a sentence on family members will not support a
downward departure,4 where the impact is unusual or
extraordinary, the District Court has discretion. See
Gaskill, 991 F.2d at 85 (concluding that exceptions may be
invoked "where the circumstances are not ‘ordinary’ or
‘generally’ present").5
_________________________________________________________________

3. See Gaskill, 991 F. 2d at 86 ("[D]epartures are an important part of
the sentencing process because they offer the opportunity to ameliorate,
at least in some aspects, the rigidity of the Guidelines themselves."); cf.
Edward R. Becker, "Flexibility and Discretion Available to Sentencing
Judge Under the Guidelines Regime," Fed. Probation, Dec. 1991, at 10,
13 (directing that we "abjure the perception of the guidelines as a totally
mechanical scheme" and "seek out the areas in which rigorous analysis
of the law and careful development of the facts can make a difference"
because "[i]n so doing, we will serve the cause of justice").
4. See U.S.S.G. SS 5H1.6 (providing that "family ties and responsibilities
. . . are not ordinarily relevant in determining whether a sentence should
be outside the applicable guideline range").
5. See also Koon v. United States, 518 U.S. 81, 96 (1996) (trial court may
depart on the basis of family circumstances if they are "present to an
exceptional degree or in some other way make[ ] the case different from
the ordinary case where [family circumstances are] present"); 18 U.S.C.
S 3553(b) (departure warranted in presence of circumstances "of a kind,
or to a degree, not adequately taken into consideration by the Sentencing
Commission in formulating the [G]uidelines"); U.S.S.G. S 5K2.0 (stating
that a circumstance "not ordinarily relevant" in determining departure
may be relevant if it "is present to an unusual degree and distinguishes
the case from the ‘heartland’ of cases covered by the [G]uidelines").

                                4


Whether a particular case is appropriate for downward
departure is a question of its lying "outside the heartland,"
that is, outside the ordinary. Thus, the term
"extraordinary", as used in Sweeting, retains its literal
meaning: the circumstances of the case must simply place
it outside the ordinary. Sweeting, 213 F.3d at 100-01 ("The
issue implicated in this case, simply stated, is whether
Sweeting’s family circumstances constitute ‘extraordinary’
family ties and responsibilities."). There is no requirement
that the circumstances be extra-ordinary by any particular
degree of magnitude. We therefore reject the government’s
apparent suggestion that a family circumstance departure
requires circumstances that are not merely extraordinary,
but extra-extraordinary (i.e., "truly extraordinary" or "so
extraordinary"). Cf. U.S.S.G. S 5K2.0 (permitting departure
only where a circumstance "distinguishes a case as
sufficiently atypical to warrant" a different sentence).
Ultimately, whether a circumstance is unusual enough to
warrant departure is a matter committed to the sound
discretion of the sentencing court. See, e.g., United States
v. Sprei, 145 F.3d 528, 534 (2d Cir. 1998) (observing that
District Court is in the best position to "decide what
combination of circumstances take a case out of the
ordinary and make it exceptional").

B.

In concluding that it lacked discretion, the District Court
misapprehended our holding in Sweeting. There, we
concluded that the District Court erred when it granted a
12-level downward departure for extraordinary family ties
and responsibilities for a recidivist defendant who pleaded
guilty to distribution and possession with an intent to
distribute between 300 and 400 grams of cocaine. 213 F.3d
at 96-97, 113. That conclusion does not, however, diminish
the discretion granted to the District Court for downward
departures when the evidence supports a finding of
unusual family circumstances. To the contrary, we
expressly recognize the "indispensable role of the district
court in making the fact-intensive determination that is

                                5


critical to the analysis required" in "finding extraordinary
family ties and responsibilities." 213 F.3d at 112.6

We reiterate our concurrence with the Second Circuit
when it concluded that the scope of appellate review in this
context is solely to "ensure that the circumstances relied
upon to justify a downward departure are [not] so far
removed from those found exceptional in existing case law
that the sentencing court may be said to be acting outside
permissible limits." Sweeting, 213 F.3d at 100, quoting
Sprei, 145 F.3d at 534-5. Determining what is"exceptional
in existing case law" requires that the District Court
compare the facts of each case with others. See Koon, 518
U.S. at 98 (explaining that whether a factor "justifies
departure because it is present in some unusual or
exceptional way" is a matter "determined in large part by
comparison with the facts of other Guidelines cases").
Although a court of appeals may occasionally compare the
facts of a case under review with those of other reported
cases in assessing whether a District Court has exceeded
the bounds of its discretion -- see, e.g., Sweeting, 213 F.3d
at 105 -- more generally the contemplated factual
comparison is for the District Court to undertake, based
upon the much greater volume of Guidelines cases that
come within its purview. See Koon, n.6; United States v.
Collins, 122 F.3d 1297, 1302 (10th Cir. 1997) ("The
Supreme Court in Koon made clear that [the] question [of
when a case warrants departure] is largely for the district
court to answer."). Cf. United States v. Galante, 111 F.3d
1029, 1034 (2d Cir. 1997) (observing that because well over
90 percent of Guidelines cases are not appealed, District
_________________________________________________________________

6. See also Koon, 518 U.S. at 98 (observing that in determining whether
departure is permitted, the District Court "must make a refined
assessment of the many facts bearing on the outcome, informed by its
vantage point and day-to-day experience in criminal sentencing" and
concluding that "District [C]ourts have an institutional advantage over
appellate courts in making these sorts of determinations"); Sweeting, 213
F.3d at 100 (same); Iannone, 184 F.3d at 227 ("We note the substantial
deference that we owe the decision to depart from the Guidelines.").

                                6


Courts have institutional advantage in comparing
sentencing cases and determining departure).7

In Sweeting, we held that a District Court cannot grant
a downward departure based principally on generic
concerns regarding breaking up families.8 In this, we are in
accord with virtually all other courts of appeals. 9 We were
careful to note, however, that the decision to reduce a
defendant’s sentence based upon family circumstances
turns on the particular facts of each case. On the facts
found by the District Court in Sweeting, we concluded that
there was an insufficient basis for departure because the
record failed to establish either that (1) the defendant’s
fourteen year old son was particularly disabled by his
affliction with Tourette’s Syndrome,10 or (2) the defendant’s
_________________________________________________________________

7. We also concur with other Court of Appeals in affirming that the
Guidelines "do not require a judge to leave compassion and common
sense at the door to the courtroom." United States v. Johnson, 964 F. 2d
124, 125 (2d Cir. 1992).
8. We observed that "the court was motivated primarily by the
circumstance that Sweeting’s incarceration would break up the family
unit" and quoted the District Court’s expression of its desire to avoid the
"all too common" break up of the family; id. at 102 (noting that "the
circumstance that Sweeting’s incarceration will disrupt the family unit
cannot be considered atypical"); id. at 108 ("At bottom, the unfortunate
fact is that [Sweeting’s] children will suffer the same type and degree of
injury felt by any family where a parent is incarcerated.").

9. But see United States v. Johnson, 964 F.2d 124, 129 (2d Cir. 1992)
(downward departure warranted because defendant who was solely
responsible for three young children faced extraordinary parental
responsibilities).

10. See Sweeting, 213 F.3d at 104 (noting that the trial court "did not
make any specific factual findings regarding the severity of Sweeting’s
son’s condition" and "did not predicate its ruling to any significant
degree on the fact that her son had Tourette’s Syndrome"); id. at 97-98,
107 (noting that recommended treatment involved diet, exercise and
structuring of daily routine, and that son was "able to attend school and
participate in various sports activities with a large measure of success");
id. at 107 ("[C]ourts considering whether to depart must weigh carefully,
among other things, the severity of the condition and the degree of extra
attention that it requires."); id. at 111 (contrasting Gaskill, in which
"there was no real dispute that [defendant’s spouse’s] mental condition
was serious").

                                7


contributions to her son’s well-being were not readily
replaceable.11 Thus, the presence of a dependant with
special needs may not in itself be enough to justify a
downward departure, and the District Court should look to
the degree of those special needs and the replaceability of
the defendant’s contribution to meeting them.12 It is, of
course, always within the discretion of the District Court to
evaluate these factors in the first instance. See Supra, n. 6
discussing Koon.
_________________________________________________________________

11. See Sweeting, 213 F.3d at 104 (noting that the trial court did not
make any specific factual findings regarding "the nature of care that
[defendant] provides to [her son]" and that there was nothing in the
record "indicating that Sweeting was so irreplaceable that her otherwise
ordinary family ties and responsibilities [were] transformed into the
‘extraordinary’ situation warranting a departure"); id. at 107 ("[T]here is
nothing in the record suggesting that Sweeting (and only Sweeting) can
provide him with the care and attention he needs, or that he as a
teenager cannot take some responsibility for his own care.").

12. Compare Gaskill, 991 F.2d at 86 (noting "[t]he degree of care required
for the defendant’s wife" and the "lack of close supervision by any family
member other than defendant" in granting departure); United States v.
Alba, 933 F.2d 1117, 1122 (2d Cir. 1991) (upholding departure where
defendant lived with disabled father who depended on defendant to
assist him moving in and out of wheelchair); with United States v.
Archuleta, 128 F.3d 1446, 1450-51 (10th Cir. 1997) (departure
unwarranted where record was "scarce on the details of the care"
required by defendant’s mother and "equally silent on the availability" of
alternative care providers, including defendant’s two siblings); United
States v. Tocco, 200 F.3d 401, 435-56 (6th Cir. 2000) (remanding for
specific findings regarding defendant’s "personal involvement in the care
of " defendant’s disabled spouse and other family members and whether
spouse had "alternative sources of support" where record indicated
defendant had adult children living in area, one of whom was a doctor);
United States v. Wright, 218 F.3d 812, 815 (7th Cir. 2000)
(circumstances do not justify departure unless record establishes that
"harm would be greater than the harm to a normal child [and] that care
from other sources would be unable to alleviate that harm") (citations
omitted). See also United States v. Haversat, 22 F.3d 790, 797-98 (8th
Cir. 1994) (defendant’s care was irreplaceable element of treatment for
mentally ill spouse); United States v. Sclamo , 997 F.2d 970, 972-74 (1st
Cir. 1993) (defendant had special relationship with child with
psychological and behavioral problems).

                                  8


C.

We have also recognized that, in determining the
appropriateness of a downward departure for family
circumstances, other factors should be considered by the
trial court. See, e.g., Sweeting, 213 F.3d at 113 n.9 (noting
that imprisonment would serve the important purposes
underlying the Guidelines themselves -- "deterrence,
incapacitation, just punishment and rehabilitation"), (citing
1998 U.S.S.G. ch. 1, Pt. A, intro.).13

It is appropriate -- indeed, essential -- that the District
Court consider the impact of a defendant’s family
circumstances on the purposes underlying sentencing. 14
_________________________________________________________________

13. See also United States v.   Lieberman, 971 F.2d 989, 999 n. 10 (3d Cir.
1992) (noting "the importance   of the flexibility and discretion possessed
by the [D]istrict [C]ourts in   using their departure power to arrive at
sentences that are consistent   with the purposes underlying the
Sentencing Reform Act").

The statement of purposes of the Sentencing Reform Act provides, in
pertinent part:

       The court shall impose a sentence sufficient, but not greater than
       necessary, to comply with the purposes set forth in paragraph (2) of
       this subsection. The court, in determining the particular sentence to
       be imposed, shall consider --

       . . .

       (2) the need for the sentence imposed --

       (A) to reflect the seriousness of the offenses, to promote respect for
       the law, and to provide just punishment for the offense;

       (B) to afford adequate deterrence to criminal conduct;

       (C) to protect the public from further crimes of the defendant; and
       (D) to provide the defendant with needed educational or vocational
       training, medical care, or other correctional treatment in the most
       effective manner . . . .

18 U.S.C. S 3553(a) (1994).

14. See, e.g., Daniel J.   Freed & Marc Miller, "Taking "Purposes"
Seriously: The Neglected   Requirement of Guideline Sentencing", 3 Fed.
Sent. R. 295, 295 (1991)   ("Congress made one principle clear: the
‘purposes of sentencing’   were to play a central role in formulating

                                  9


Particular family circumstances can be relevant to
sentencing considerations not only because the potential
harm to third-party family members may constitute a
"mitigating" factor (thus permitting a downward departure
as long as the traditional purposes of sentencing remain
satisfied by the ultimate sentence),15 but also because they
have a direct impact on the defendant "in ways that directly
implicate the purposes of sentencing."16

In any case, the justification for considering family
circumstances in departures is that the fundamental
purposes of sentencing set forth in the Sentencing Reform
Act will be fully served by a reduced sentence. 17
_________________________________________________________________

individual sentences and in drafting Commission guidelines."); see
generally Douglas A. Berman, "Addressing Why: Developing Principled
Rationales for Family-Based Departures", 13 Fed. Sent. R. 274
(March/April 2001); Douglas A. Berman, "Balanced and Purposeful
Departures", 76 Notre Dame L. Rev. 21 (Nov. 2000) (asserting that courts
must undertake a "prescriptive" as well as a"descriptive" analysis,
evaluating both whether particular factors are outside the Guidelines’
"heartlands" and whether those factors "should result" in a different
sentence).

15. See 18 U.S.C. S 3553(b).

16. Berman, "Addressing Why", infra n.18. Compare Gaskill, 991 F.2d at
86 (factors warranting departure for credit fraud defendant with disabled
spouse included "the lack of any end to be served by imprisonment other
than punishment" and "the lack of any threat to the community --
indeed, the benefit to it by allowing the defendant to care of his ailing
wife") with Sweeting, 213 F.3d at 111 (defendant was recidivist involved
in high volume drug dealings and there was "some question whether the
best interests of the children would be served by allowing them to
remain under the care of the defendant").

As Berman notes by way of illustration, in some circumstances a
defendant’s non-violent crime may be motivated by family need and her
behavior is therefore less culpable; in others, the realization of harm to
the family owing to defendant’s criminal conduct may provide a
significant deterrent from further wrongdoing, lessening the need for
imprisonment to provide deterrence. Berman, "Balanced and Purposeful
Departures", 76 Notre Dame L. Rev. at 67-78.
17. See id. at 66-67; cf. Gaskill, 991 F.2d at 86 (directing that departures
are appropriate when "the circumstances require such action to bring
about a fair and reasonable sentence").

                                10


Accordingly, we reiterate our direction that factors such as
the need for deterrence, incapacitation, just punishment,
and rehabilitation should play a significant role in the
District Court’s analysis.18

D.

Finally, we note again, it is for the District Court in the
first instance to exercise its discretion in deciding upon a
downward departure. The District Court here indicated that
it was "inclined to depart by four levels" but felt that it
lacked discretion to do so. Having now clarified our
jurisprudence, we observe that in this case such a
downward departure would be within the District Court’s
discretion given its findings regarding Dominguez’s
extraordinary family needs and the absence of any other
readily available source of meeting those needs. 19
Dominguez has been terminated from her banking position
_________________________________________________________________

18. Cf. Berman, "Balanced and Purposeful Departures", 76 Notre Dame
L. Rev. at 68 (concluding based on review of case law that, in addition
to articulated analysis of "extraordinariness", family circumstances
decisions also reflect "underlying concerns and judgments about
culpability, crime control, and the traditional purposes of punishment
embraced by the [Sentencing Reform Act]") (citing Freed & Miller, supra
n. 14).

19. The District Court found that "[i]f defendant were not available to
perform those functions, there would be no family member who could
help and there are no funds to employ outside assistance." See SHT at
50-51. Compare Archuleta, 128 F.3d at 1450-51 (no evidence regarding
inability of other two siblings to care for disabled mother), Tocco, 200
F.3d at 435-36 (defendant had adult children living in area, one of whom
was a doctor); United States v. Allen, 87 F.3d 1224, 1226 n.1 (11th Cir.
1996) (noting that defendant was not "the only family member available
to care for her father"); United States v. Shortt, 919 F.2d 1325, 1328 (8th
Cir. 1990) (departure unwarranted where defendant’s two brothers could
help disabled father on farm); United States v. Pereira, 272 F.3d 76, 82
(1st Cir. 2001) (case was "replete with evidence demonstrating alternative
sources of care for [defendant’s] parents", including defendant’s siblings);
United States v. King, 280 F.3d 886, 889 (8th Cir. 2002) (record lacked
findings that neither defendant’s wife nor her parents, who lived next
door, were able to care for defendant’s children); United States v. Dyce,
91 F.3d 1462, 1467 (D.C. Cir. 1996) (noting, as factor militating against
departure, that children would be cared for by defendant’s family).

                                11


and poses no threat to society, so, incapacitation appears
unjustified.20 She has lost her employment and her
reputation, and hurt and humiliated her parents, all for no
gain, and hence, her punishment will have a significant
deterrent effect. Her very low level of culpability is
apparent, and it would be within the District Court’s
discretion to conclude that a reduced sentence has a penal
valence equal to the crime.21 Finally, as Dominguez is a
contrite, and educated woman with no past criminal
history, and has received mental health counseling, the
trial court may conclude that incarceration would serve no
rehabilitative purpose.22 In sum, the District Court would
_________________________________________________________________

20. See Sweeting, 213 F.3d at 1111 (contrasting Sweeting and Headley
with Gaskill, in which "there was no indication . . . that the defendant
had a violent nature, nor was [the] offense classified as a violent crime"
and where defendant had not "been engaged in a criminal business, i.e.,
the sale of narcotics"); id. at 111 n.8 (noting that search of Sweeting’s
residence found semi-automatic pistol and loaded magazines). See also
United States v. Abbott, 975 F. Supp.2d 703, 710 (E.D. Pa. 1997)
(distinguishing Gaskill because defendant had "a history of crimes
involving actual violence, the threat of violence and the use of weapons").
21. Compare Sweeting, 213 F.3d at 113 n.9 (concluding that, as
Sweeting was a recidivist "with a Criminal History Category VI despite
her relatively young age," some period of incarceration was necessary "to
punish Sweeting for her most recent and very serious criminal conduct").

We have previously noted that the duration of the Guideline sentence
is also a factor to be considered (e.g., a very lengthy sentence that
cannot be reduced to preserve the family unit intact as opposed to a
term commutable to probation). See Sweeting, 213 F.3d at 111.
Nonetheless, we agree with the District Court that a shorter term is, of
course, less damaging to innocent dependent family members than a
longer one. See SHT at A46. We reject the government argument that
because any period of incarceration deprives family members of a
defendant’s care, any departure that includes some incarceration makes
no sense in light of the policies underlying the exception for
extraordinary family circumstances. We will not leave the District Courts
with an "all or nothing" choice whereby they must either reduce the
incarceration to zero, or decline to depart at all. Determining a just
sentence depends upon an often complex interplay of multiple factors
and we will not constrain the District Courts’ discretion by holding that
they may not depart for extraordinary family circumstances in any
degree if the ultimate sentence imposed includes some incarceration.

22. Cf. Johnson, 964 F.2d at 126 (observing, in affirming departure,
that there was no indication of substance abuse or mental health

                                12


be well within its discretion in determining that none of the
purposes underlying the Guidelines would be disserved by
reducing Dominguez’s sentence.

V.

In sum, and for the reasons set forth above, the sentence
imposed will be vacated and the matter remanded to the
District Court for re-sentencing consistent with this
opinion.
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

problems); United States v. Dyce, 975 F. Supp.2d 17 (D.D.C. 1997)
(departure appropriate where single mother had successfully completed
both drug treatment and medical assistant training program and
incarceration "would not serve societal interests, or those of defendant or
her children").

                                13
