                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-3-2000

United States v. Sweeting
Precedential or Non-Precedential:

Docket 99-3774




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Filed May 3, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-3774

UNITED STATES OF AMERICA,

       Appellant

v.

DENEEN SWEETING

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 98-00189)
District Judge: Honorable Thomas I. Vanaskie

Argued March 24, 2000

BEFORE: MANSMANN, GREENBERG, and BARRY,
Circuit Judges

(Filed: May 3, 2000)

       David M. Barasch
       United States Attorney
       John C. Gurganus, Jr. (argued)
       Assistant United States Attorney
       United States Attorney's Office
       Middle District of Pennsylvania
       309 Federal Building
       Scranton, PA 18501

        Attorneys for Appellant
       James V. Wade, Esq.
       Federal Public Defender
       Daniel I. Siegel, Esq. (argued)
       Assistant Federal Public Defender
       Federal Public Defender's Office
       100 Chestnut Street, Suite 306
       Harrisburg, PA 17101

        Attorneys for Appellee

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes before this court on an appeal by the
government from a judgment of conviction and sentence
entered in the district court on August 26, 1999, against
the defendant Deneen Sweeting ("Sweeting"). This appeal
presents the sole question of whether the district court
abused its discretion in awarding Sweeting a 12-level
downward departure from the sentencing range applicable
under the United States Sentencing Guidelines ("the
Guidelines" or "U.S.S.G.") for extraordinary family ties and
responsibilities pursuant to U.S.S.G. S 5H1.6, p.s.
(hereinafter cited in the text as "section 5H1.6"). After a
careful review of the facts and circumstances of this case,
we are constrained to agree with the government's position
that Sweeting's family ties and responsibilities were not
"extraordinary" in any degree to warrant a departure under
section 5H1.6, and that the district court thus abused its
discretion in departing downward on this basis.
Accordingly, we will vacate the sentence and remand the
case to the district court for sentencing in accordance with
this opinion.

II. FACTS and PROCEEDINGS

On August 11, 1998, a federal grand jury returned a six-
count indictment charging Sweeting with violations of the

                                 2
Controlled Substances Act. On October 29, 1998, Sweeting
pleaded guilty to count V of the indictment, distribution
and possession with an intent to distribute cocaine, in
violation of 18 U.S.C. S 841(a)(1).

The United States Probation Office prepared Sweeting's
Presentence Investigation Report ("PSI"). The PSI calculated
that Sweeting was responsible for the distribution of at
least 300 grams but less than 400 grams of cocaine. Given
Sweeting's offense conduct and prior criminal history, the
PSI calculated a total offense level of 19 and a criminal
history category of VI, which placed her in the sentencing
range of 63-78 months imprisonment under the Guidelines.

Sweeting did not object to the content of the PSI or its
calculation of the final offense level and criminal history
category. She nevertheless filed a motion seeking a
downward departure from the Guidelines range
recommended in the PSI, offering the following grounds for
the departure request: (1) the Category VI criminal history
overstated the seriousness of her prior conduct; (2) she
engaged in extraordinary post-offense rehabilitation efforts;
and (3) there were extraordinary family ties and
responsibilities in this case because she was solely
responsible for the care and support of her five children,
one of whom had been diagnosed with Tourette's
Syndrome. The government opposed the motion, arguing,
inter alia, that Sweeting's family responsibilities did not
warrant any departure from the Guidelines range
recommended in the PSI.

As reflected in the PSI, Sweeting is a single mother of five
children who were of ages five through 14 at the time of her
sentencing in the district court. In September of 1997, Dr.
Kenneth W. Lilik, M.D. ("Dr. Lilik"), a neurologist,
diagnosed Sweeting's oldest son as afflicted with Tourette's
Syndrome, a neurological disorder characterized by facial
and body tics, often accompanied by grunts and compulsive
utterances. PSI P 46. Dr. Lilik reported that Sweeting's son
suffered from several symptoms of Tourette's Syndrome,
including involuntary throat clearing, head nodding, and
bringing his fist in contact with his mouth. His report noted
that the child displayed head nodding movements during
the course of his examination, "particularly as he became

                               3
more tense." App. at 65. The examination concluded with
several treatment suggestions, including daily physical
activity, and organization of the young man's personal
habits, school work and home responsibilities. Dr. Lilik also
provided Sweeting with a list of foods to eliminate from her
son's diet, and indicated that her son should avoid taking
stimulant decongestive medications and refrain from
watching television and video games during the school
week. Id.

Dr. Lilik reevaluated Sweeting's son in December 1998.
Dr. Lilik noted that he "had transient resolution of his ticks
and gulping while he played football," but that his
symptoms had returned because he was no longer involved
in sports activities. His report concluded by suggesting that
Sweeting's son should participate in a daily exercise
program (in the mornings) and become involved in sports
throughout the entire year. He indicated that "[i]f
nonmedication strategies are inadequate, we may consider
the use of Pamelor or Zoloft, if he feels that social
difficulties remain due to his tics." Dr. Lilik ordered a follow
up visit in one year. App. at 64. Sweeting certified that as
of May 19, 1999, her son was taking Pamelor to assist in
controlling the physical symptoms of Tourette's Syndrome.

The district court held a sentencing hearing on August
25, 1999. During the colloquy between the court and
counsel relating to Sweeting's extraordinary family
circumstances, defense counsel described the nature of her
son's disorder and Sweeting's responsibilities in caring for
her son as follows:

       [I]n this particular instance, this is not a handicap that
       [the child] suffers from which is so disabling that he
       can't play football, he plays football. Or he can't attend
       school, he does attend school. But his handicap is
       permanent, it is neurological, it's medically diagnosed
       by a pediatric neurosurgeon, and has been introduced
       into the record. Its practical effect, its manifestation on
       this young man in school was testified to by Karen
       DeSantis, who said that it causes him a learning
       disability. Some of the manifestations are twitching of
       his eyes, that is, he blinks both of his eyes and it
       causes him to cock his head back without--in an

                               4
       involuntary manner repeatedly, such that he has had
       neck sprains while being in school. They flare-up more
       intensely during times of anxiety and tensions. For
       instance, in school when he's having tests.

        His mother gets up with him at the crack of dawn,
       does physical exercises with him. This is not--she
       doesn't have to be an RN or a physical therapist, but
       this is what she does. She gets him up and goes
       through physical training with him, which is
       recommended by [the neurologist]. She closely
       monitors and regulates the types of foods that he
       ingests, by and large he has to steer away from sweets
       and she guards against that. She makes him lunches,
       she makes him breakfast, she makes him dinner, all
       the while juggling four other kids and work.

        When he comes home at night she has to spend
       more time with him going through his homework at
       night. She has a routine with him. And during the
       more intense times of schooling she does have to
       regulate and make sure that he takes medication at
       night to beat back the Tourette's Syndrome. . . .

        That is something that is distinct, unique and
       requires constant attention. It will only get worse if
       that is not clearly closely monitored, and it is with him
       for the rest of his life. All of that is documented and
       supported by the record in this case.

App. at 179-81. Sweeting certified that Dr. Lilik informed
her that "without this routine the prognosis is that the
symptoms will become more aggravated to the point that he
would involuntarily make animal noises, or develop into a
serious case of Attention Deficit Disorder." App. at 103.

After hearing testimony and argument from counsel, the
court ruled on Sweeting's motion for a downward
departure. First, it determined that the PSI overstated
Sweeting's criminal history, which it thus reduced from
Category VI to Category IV. Second, the court found that
Sweeting's extraordinary rehabilitative efforts warranted a
1-level decrease in offense level. This departure reduced the
offense level to 18 which, combined with a criminal history
Category IV, produced a Guidelines range of 41-51 months

                                5
imprisonment. App. at 200. The government does not
challenge these downward departures.

The district court, however, made a third departure
which forms the basis for the government's appeal in this
case. Specifically, the court determined that section 5H1.6
provided a court with the discretion to depart from the
Guidelines where the circumstances demonstrated that the
defendant's family ties and responsibilities were
"extraordinary." From that initial premise, the court found
that this case presented extraordinary circumstances
because "Ms. Sweeting is a single parent providing for five
children, one of whom has a substantial neurological deficit
in the form of Tourette's Syndrome." App. at 202. The court
then departed downward 12 levels, producing an adjusted
offense level of 6, which, combined with a criminal history
Category IV, produced a Guidelines range of 6-12 months
imprisonment. App. at 203-04. Consistent with that
Guidelines range, the district court imposed a sentence of
five years probation, 12 months home detention with
electronic monitoring, 200 hours of community service, and
a special assessment of $100. App. at 13. The district court
entered the final judgment of conviction and sentence on
August 26, 1999.

The government filed a timely notice of appeal on
September 23, 1999. Its sole challenge on appeal relates to
the district court's 12-level departure for extraordinary
family ties and responsibilities under section 5H1.6.1

III. DISCUSSION

In the usual case, the district court is required to impose
a sentence within the applicable Guidelines range. See 18
U.S.C. S 3553(b). "For the most part, a court can treat each
_________________________________________________________________

1. The district court exercised subject matter jurisdiction pursuant to 18
U.S.C. S 3231, which provides that the district courts have original
jurisdiction "of all offenses against the laws of the United States." We
exercise appellate jurisdiction over the district court's final order
pursuant to 28 U.S.C. S 1291, and have jurisdiction under 18 U.S.C.
S 3742(b)(3) to review a final sentence where, as here, the sentence is
less than the minimum sentence specified in the applicable Guidelines
range.

                               6
guideline as carving out a `heartland,' a set of typical cases
embodying the conduct that each guideline describes."
United States v. Baird, 109 F.3d 856, 870 (3d Cir. 1997)
(citing and quoting 1994 U.S.S.G. ch. 1, pt. A., intro.
comment. 4(b)) (internal quotation marks omitted). But in
the unusual case in which a defendant's conduct falls
outside the typical "heartland" of cases, the district court
may consider whether a departure is appropriate. See
United States v. Iannone, 184 F.3d 214, 226 (3d Cir. 1999).
Section 5K2.0 of the Guidelines provides that a court may
impose a sentence outside the applicable Guidelines range
"if 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 than that described.' " See
U.S.S.G. S 5K2.0, p.s. (quoting 18 U.S.C.S 3553(b)). That
section further states that "an offender characteristic or
other circumstance that is, in the Commission's view, `not
ordinarily relevant' in determining whether a sentence
should be outside the applicable guideline range may be
relevant to this determination if such characteristic or
circumstance is present to an unusual degree and
distinguishes the case from the `heartland' of cases covered
by the guidelines. . . ." Id.

One of the offender characteristics that the Sentencing
Commission specifically has identified as "not ordinarily
relevant" in determining an offender's sentence is the
defendant's family ties and responsibilities. Section 5H1.6
of the Guidelines provides that "[f]amily ties and
responsibilities . . . are not ordinarily relevant in
determining whether a sentence should be outside the
applicable guideline range."2 Thus, the Sentencing
Commission has classified the existence of family ties and
responsibilities as a "discouraged" basis for departure. See
Koon v. United States, 518 U.S. 81, 95, 116 S.Ct. 2035,
_________________________________________________________________

2. The genesis of section 5H1.6 lies in Congress' directive to the
Sentencing Commission to "assure that the guidelines and policy
statements . . . reflect the general inappropriateness of considering the
. . . family ties and responsibilities . . . of the defendant." 28 U.S.C.
S 994(e).

                               7
2045 (1996) (explaining that the district court's departure
analysis must involve a determination whether the
Guidelines forbid departures based on the factor, encourage
departures on that basis, discourage departures, or do not
mention the factor at all). "The Commission does not view
discouraged factors `as necessarily inappropriate' bases for
departure but says they should be relied upon only`in
exceptional cases.' " See id. (quoting 1995 U.S.S.G. ch. 5,
pt. H, intro. comment.). Indeed, the commentary to
U.S.S.G. S 5K2.0 explains that with respect to a departure
decision predicated on a discouraged offender characteristic
or other circumstance "not ordinarily relevant" to
sentencing determinations, "[i]n the absence of a
characteristic or circumstance that distinguishes a case as
sufficiently atypical to warrant a sentence different from
that called for under the guidelines, a sentence outside the
guideline range is not authorized." U.S.S.G.S 5K2.0
comment.

At the risk of stating the obvious, then, a downward
departure based on family ties and responsibilities should
be the exception rather than the rule. See United States v.
Higgins, 967 F.2d 841, 846 (3d Cir. 1992) (remanding to
district court to determine, inter alia, if defendant's family
ties and responsibilities fell within the "very narrow
category" of "extraordinary"); see also United States v.
Tocco, 200 F.3d 401, 436 (2d Cir. 2000) ("The district court
has broad discretion in dealing with requests for departure
. . . but the Sentencing Commission and the courts expect
that they will not often occur. . . ."); United States v.
Archuleta, 128 F.3d 1446, 1450 (10th Cir. 1997) ("The
question before us, then, is whether the record in this case
establishes family circumstances so exceptional that they
constitute the rare case justifying a departure from the
guidelines which already recognize the reality of difficult
family circumstances for many defendants and which
discourage making an additional allowance on that basis.");
United States v. Dyce, 91 F.3d 1462, 1466 (D.C. Cir. 1996)
("[W]e underscore what is implicit in the word
`extraordinary' and explicit in the Guidelines themselves:
departures on [the basis of family ties and responsibilities]
should be rare."). This observation, in turn, must inform
our analysis as to the type of family situation which

                               8
legitimately may be categorized as "extraordinary" and thus
outside the typical heartland of cases the Guidelines were
designed to cover. See Dyce, 91 F.3d at 1466 (noting that
a court may depart on the basis of family ties and
responsibilities only if the case "significantly differs from
the norm") (internal quotation marks omitted).

We review a district court's decision to depart from the
applicable Guidelines range under an abuse of discretion
standard, giving due deference to the district court's
institutional advantage over an appellate court in
comparing one sentencing case to another. See Koon, 518
U.S. at 98, 116 S.Ct. at 2046-47 ("Before a departure is
permitted, certain aspects of the case must be found
unusual enough for it to fall outside the heartland of cases
in the Guideline. To resolve this question, 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."); see also Iannone,
184 F.3d at 227 ("[W]e note the substantial deference that
we owe the decision to depart from the Guidelines.").
Nevertheless, we agree with the Court of Appeals for the
Second Circuit's observation that an appellate court's
review of a departure determination in this context must
" `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.' "
See United States v. Faria, 161 F.3d 761, 762 (2d Cir. 1998)
(quoting United States v. Sprei, 145 F.3d 528, 534-35 (2d
Cir. 1998)) (internal quotation marks omitted) (alteration in
original); see also Koon, 518 U.S. at 98, 116 S.Ct. at 2047
("Whether a given factor is present to a degree not
adequately considered by the Commission, or whether a
discouraged factor nonetheless justifies departure because
it is present in some unusual or exceptional way, are
matters determined in large part by comparison with the
facts of other Guidelines cases.").

The issue implicated in this case, simply stated, is
whether Sweeting's family circumstances constitute
"extraordinary" family ties and responsibilities. As the
Court of Appeals for the District of Columbia Circuit

                               9
recognized in Dyce, "[t]he issue is admittedly a murky one."
See 91 F.3d at 1466. Indeed, while

       [i]t may not be unusual, for example, to find that a
       convicted drug offender is a single mother with family
       responsibilities, . . . at some point, the nature and
       magnitude of family responsibilities (many children?
       with handicaps? no money? no place for children to
       go?) may transform the `ordinary' case of such
       circumstances into a case that is not at all ordinary.

See United States v. Rivera, 994 F.2d 942, 948 (1st Cir.
1993); see also Dyce, 91 F.3d at 1466 (quoting Rivera, 994
F.2d at 948).

To reiterate, the district court predicated its ruling on the
fact that Sweeting "is a single parent providing for five
children, one of whom has a substantial neurological deficit
in the form of Tourette's Syndrome." App. at 202. The
district court expounded on that point as follows:

       It is a breakdown in the family, a breakdown that is all
       too common. And we collectively, as a society, should
       do what we can to support the family and to sometimes
       take--you can call it a risk or make an investment in
       a decision that supports the family. And I have decided
       in this case that I will make that investment collectively
       on behalf of society that invests in me the discretionary
       authority to depart downward based upon
       extraordinary circumstances. I find that the
       extraordinary circumstance in this case is that Ms.
       Sweeting is a single parent providing for five children,
       one of whom has a substantial neurological deficit in
       the form of Tourette's syndrome. That from all of the
       evidence that has been presented to me, Ms. Sweeting
       is a substantial positive influence on the children's
       lives. That incarceration would have a very serious
       detrimental effect on the family unit, that it would
       break up the family unit, and that's a consequence
       that I don't want to see happen in this case.

        It's a consequence that I think we as a society
       should, when we have the ability, try to avoid. It's not
       a decision I make that is lightly taken, and it is also a
       decision I know that's in some respects risky, maybe

                                10
       you call it a high risk investment in light of Ms.
       Sweeting's prior record.

App. at 202-03.

The government contests the district court's ruling on
several grounds. First, it maintains that the court erred in
relying upon the fact that Sweeting is the sole provider for
her five children because we determined in United States v.
Headley, 923 F.2d 1079 (3d Cir. 1991), that a defendant's
status as a single mother of five children was not
"extraordinary" in the sense that it was so atypical of the
situations facing most convicted felons that it fell outside
the heartland of cases sentenced under the Guidelines.
Next, it points out that under our case law, the fact that
Sweeting is a substantial positive influence on her
children's lives and that her incarceration would break up
the family unit similarly does not take this case out of the
heartland and render her situation extraordinary. Itfinally
contends that the fact that Sweeting's oldest child suffers
from Tourette's Syndrome is insufficient under the
circumstances of this case to support the district court's
ultimate factual finding that her family responsibilities were
extraordinary. It points out in this connection that there is
nothing extraordinarily atypical about Sweeting's
responsibilities to her oldest son, or the needs of the child
himself, that indicate that her presence at home is essential
to his care and well-being.

We agree entirely with the government's assessment of
the circumstances of this case. Put simply, we find that
none of the factors the district court considered, taken
individually or in their entirety, present extraordinary
family ties and responsibilities taking this case out of the
heartland of cases sentenced under the Guidelines. 3
_________________________________________________________________

3. We point out that the government does not challenge the accuracy of
the evidence in the record concerning the nature of Sweeting's family ties
and responsibilities--for example--the type of specialized care her son
requires because of his condition. Rather, it asserts that the facts in
the
record do not warrant a downward departure because they do not
demonstrate that her family situation is extraordinary in the sense
contemplated by section 5H1.6. Similarly, for purposes of our analysis,
we assume the accuracy of the historical facts in the record, but part

                               11
Consequently, we find that Sweeting's family ties and
responsibilities present an insufficient basis for a departure
pursuant to section 5H1.6.

First, as our cases repeatedly have recognized, the
circumstance that Sweeting's incarceration will disrupt the
family unit cannot be considered atypical, inasmuch as
innumerable defendants no doubt could establish that their
absence will cause a void in their children's lives. As a
practical matter, it may be said that most children look to
their parents for support, guidance and stability. But, as
we indicated in United States v. Gaskill, 991 F.2d 82 (3d
Cir. 1993), "[d]isruptions of the defendant's life, and the
concomitant difficulties for those who depend on the
defendant, are inherent in the punishment of incarceration.
Disintegration of family life in most cases is not enough to
warrant departures." Id. at 85 (citation and internal
quotation marks omitted); see also United States v. Reilly,
33 F.3d 1396, 1424 n.22 (3d Cir. 1994) (quoting Gaskill,
991 F.2d at 84); accord Dyce, 91 F.3d at 1468 (as
"innumerable defendants could no doubt establish[,] . . . a
prison sentence[ ] normally disrupts . . . parental
relationships") (internal quotation marks omitted); United
States v. Brown, 29 F.3d 953, 961 (5th Cir. 1994) (same).

We also point out that while Sweeting appears devoted to
her children and is "a substantial positive influence" on
their lives, see app. at 203, the district court's reliance on
those facts was inappropriate because they do not take this
case out of the "heartland" of cases sentenced under the
_________________________________________________________________

company with the district court's ultimate factual conclusion that those
circumstances render Sweeting's family ties and responsibilities so
"extraordinary" so as to take this case out of the heartland of cases
sentenced under the Guidelines.

Moreover, it is appropriate to mention at this juncture that although
our analysis of the nature of Sweeting's family responsibilities proceeds
by examining each component of the district court's analysis separately,
we have considered the cumulative effect of the totality of the
circumstances presented in this case. And, as we have indicated in the
text, we simply see no sound basis for upholding the district court's
departure determination notwithstanding our deferential standard of
review.

                               12
Guidelines involving a defendant who also is a parent.
Indeed, in United States v. Shoupe, 929 F.2d 116 (3d Cir.
1991), we expressly rejected the defendant's argument that
a departure under section 5H1.6 was warranted because he
was a good father to his son. There the defendant's
presentence report revealed that he had a young son who
resided with his former wife, that the defendant paid
regular child support, frequently spoke with the child by
telephone and visited him. Defendant's counsel stated at
the sentencing hearing that his client was "a good father."
See id. at 121. We held that "[t]hese facts do not show such
extraordinary family ties and responsibilities as to justify a
departure despite Section 5H1.6." Id.; see also United
States v. Wilson, 114 F.3d 429, 434 (4th Cir. 1997)
(reversing downward departure based on district court's
finding that defendant's attention to his children was
extraordinary based on the defendant's lack of parental
guidance as a child); United States v. Webb, 49 F.3d 636,
638 (10th Cir. 1995) (reversing district court's downward
departure where circumstances showed only that defendant
was sole caretaker of his son, had positive influence on his
life, and that son needed "to be taken care of "); United
States v. Brand, 907 F.2d 31, 33 (4th Cir. 1990) (finding
that district court erred in awarding downward departure
for extraordinary circumstances; court of appeals found
that the factors the district court relied on, specifically the
fact that the defendant's children would be separated and
placed with "blood strangers," simply were not
extraordinary).

The district court also relied in its departure ruling on
the related circumstance that Sweeting was a single mother
and the sole provider for her five children. But in doing so,
the government is correct that the court appears to have
overlooked our opinion in United States v. Headley, 923
F.2d 1079. Headley was a single mother of five children,
ranging in age from 11 months to 11 years who was
convicted of charges stemming from her activities as a drug
courier for a large narcotics manufacturing and distribution
organization. She had a relationship with the leader of the
drug organization in which she participated, and it was
undisputed that he was the father of her five children.
Headley argued in the district court for a downward

                               13
departure for extraordinary family responsibilities under
section 5H1.6, but the court held that it lacked authority to
depart downward from the applicable Guidelines range on
that basis. The district court thus sentenced Headley to 17
years imprisonment, the minimum in her Guidelines range.
See id. at 1081-82.

Headley appealed, arguing that the district court erred in
concluding that it lacked authority to consider the
psychological impact that a lengthy sentence would have on
her five young children. We rejected her argument,
explaining that as of that time, "every court to consider the
issue of departure based on the effect that sentencing a
single parent to prison will have on minor children has
found the circumstances not to be extraordinary." See id. at
1082. But see United States v. Johnson, 964 F.2d 124, 129
(2d Cir. 1992) (deciding after Headley that section 5H1.6
departure was warranted because the defendant, who"was
solely responsible for the upbringing of her three young
children, including an infant, and of the young child of her
institutionalized [adult] daughter, . . . faced extraordinary
parental responsibilities").

We obviously predicated our ruling in Headley on the
unfortunate reality that single parents often commit crimes
requiring incarceration. As the Court of Appeals for the
Fourth Circuit explained in United States v. Brand:

       A sole, custodial parent is not a rarity in today's
       society, and imprisoning such a parent will by
       definition separate the parent from the children. It is
       apparent that in many cases, the other parent may be
       unwilling or unable to care for the children, and that
       the children will have to live with friends, relatives or
       even in foster homes. . . . [Defendant's] situation,
       though unfortunate, is simply not out of the ordinary.

907 F.2d at 33; see also United States v. Leandre, 132 F.3d
796, 807-08 (D.C. Cir. 1998) (affirming district court's
denial of the defendant's request for downward departure
under section 5H1.6 based on fact that he was a single
father of two young children who might be placed in foster
care as a result of incarceration; court of appeals stated
that "[f]rom the perspective of the defendant's children, the

                               14
result may be harsh but it is not so extraordinary a
circumstance confronting sentencing judges"). Thus,
despite the fact that Headley's situation was unfortunate,
we held that incarceration of a single parent and its
concomitant effects on the children simply cannot be
characterized as out of the ordinary. Accord Archuleta, 128
F.3d at 1450; Leandre, 132 F.3d at 807-08; United States
v. Rodriguez-Valarde, 127 F.3d 966, 969 (10th Cir. 1997)
(collecting cases); Webb, 49 F.3d at 638-39; United States v.
Chestna, 962 F.2d 103, 107 (1st Cir. 1992); Brand, 907
F.2d at 33. We therefore agree with the government's
position that the district court's ruling, to the extent that
the court predicated it on Sweeting's status as a single
mother, was inconsistent with our decision in Headley.

As the foregoing demonstrates, the fact that Sweeting is
a devoted single mother of five whose children solely
depend on her for support and guidance simply does not
meet the threshold of "extraordinary" when compared to the
innumerable cases in which parents commit crimes and are
sentenced under the Guidelines. Thus, we must consider at
this point the only factor that arguably removes this case
from the heartland of cases under the Guidelines, and
distinguishes this case from the situation we faced in
Headley--namely, that Sweeting's oldest son suffers from
Tourette's Syndrome.4 Sweeting argues that it is clear that
responsibility for the care of a sick family member may
constitute an extraordinary circumstance warranting a
departure. See br. at 18. She contends that the record
demonstrates that her "extraordinary efforts are essential to
her son's continued health and well-being." Br. at 14.

We are unpersuaded. First, we point out that a review of
the district court's comments at the sentencing hearing
_________________________________________________________________

4. Sweeting apparently recognizes that her son's condition is pivotal to
the analysis of whether the district court erred in granting a departure
under section 5H1.6 given her family situation. Importantly, this factor
is the sole basis on which she argues in her brief that she faces
"extraordinary" family responsibilities. See br. at 12 ("It is submitted
that
this mother's responsibilities for the care of an adolescent child with
Tourette's Syndrome constituted an extraordinary family responsibility.
For this reason, the district court did not abuse its discretion [in]
granting the downward departure.").

                               15
confirms that in granting the downward departure under
section 5H1.6, the court was motivated primarily by the
circumstance that Sweeting's incarceration would break up
the family unit because of her status as a single parent.
See app. at 201-02 ("[T]he circumstances of this case are
extraordinary. We are dealing with a single parent."); id. at
202 ("It is a breakdown in the family, a breakdown that is
all too common. And we collectively, as a society, should do
what we can to support the family. . . ."); id. at 203
("[I]ncarceration would have a very serious detrimental
effect on the family unit[;] it would break up the family
unit, and that's a consequence that I don't want to see
happen in this case."). Indeed, the district court only
mentioned her son's Tourette's Syndrome once in the entire
course of its findings on this point: "I find that the
extraordinary circumstances in this case is that Ms.
Sweeting is a single parent providing for five children, one
of whom has a substantial neurological deficit in the form
of Tourette's Syndrome." App. at 202. It did not make any
specific factual findings regarding the severity of Sweeting's
son's condition, or the nature of care that she provides to
him. Thus, while on appeal Sweeting presses this particular
family circumstance as the definitive factor justifying the
district court's departure determination, the district court
did not predicate its ruling to any significant degree on the
fact that her son had Tourette's Syndrome.

Second, and more importantly, while we in no way intend
to minimize the difficulties facing a parent whose child
suffers from Tourette's Syndrome, the record in this case
suggests that there is nothing about the severity of this
child's condition or the nature of the care that he requires
indicating that Sweeting is so irreplaceable that her
otherwise ordinary family ties and responsibilities are
transformed into the "extraordinary" situation warranting a
departure under section 5H1.6. First, as to the nature of
the care that her son requires, the evidence demonstrates
that after Sweeting's son was diagnosed with Tourette's
Syndrome, his neurologist, Dr. Lilik, provided several
treatment suggestions, including daily physical activity, and
organization of the young man's personal habits, school
work and home responsibilities. Dr. Lilik also provided
Sweeting with a list of foods to eliminate from her son's

                               16
diet, and instructed that her son should avoid taking
stimulant decongestive medications and refrain from
watching television and video games during the school
week. On a follow up visit, Dr. Lilik suggested that
Sweeting's son should participate in a daily exercise
program (in the mornings) and become involved in sports
throughout the entire year.

The record indicates (and the government does not
dispute) that Sweeting complied with Dr. Lilik's
suggestions. See app. at 180-81 (describing Sweeting's care
for her son as consisting of exercising with him in the
mornings, shopping for and preparing his meals, helping
him with his homework, and administering his medication
when necessary). And we agree with Sweeting that the
record reflects the fact that her son must continue this diet
and exercise regimen to combat and control the symptoms
of his condition. Nevertheless, there simply is nothing
about the type of care that he requires that suggests to us
that it is so unique or burdensome that another responsible
adult could not provide the necessary supervision and
assistance in Sweeting's absence. As the government
pointed out at oral argument, the degree of extra attention
that her son needs as a result of his condition pales in
comparison to that which is required by an infant who
needs constant care and supervision. Compare Dyce, 91
F.3d at 1467 (rejecting defendant's argument that
downward departure was necessary so that she could care
for and nourish her three-month old infant); Headley, 923
F.2d at 1082 (youngest child was 11 months old).

Moreover, as the record demonstrates, the regimen that
Sweeting has followed with her son thus far has assisted
him in controlling the effects of his condition. Sweeting's
attorney recognized that his condition is not "so disabling
that he can't play football, he plays football.[It is not so
disabling that] he can't attend school, he does attend
school." App. at 179-80. Thus, it does not appear that the
child's Tourette's Syndrome is so severe that it precludes
him from participating meaningfully in various school and
social activities.

These observations confirm that while her child's
neurological condition supports Sweeting's contention that

                               17
he "needs to be taken care of " in a way that differs from
the needs of her other four children, her responsibilities to
her son do not differentiate her situation to such a degree
so as to support the finding that her case is extraordinary.
Our conclusion on this point is guided, as it must be, see
Koon, 518 U.S. at 98, 116 S.Ct. at 2047, by other cases in
which a defendant has sought a downward departure under
section 5H1.6 under similar factual circumstances--namely
where the defendant claimed "extraordinary" family
responsibilities in part due to his or her obligation to care
for a disabled family member. While we have found several
cases that support our conclusion in this case, we need
only highlight the most pertinent to our analysis on this
point.

For example, in Archuleta the Court of Appeals for the
Tenth Circuit reversed the district court's downward
departure under section 5H1.6 based on the circumstance
that the defendant was the sole support for two of his
children and cared for his elderly, diabetic mother. See 128
F.3d at 1447. There the defendant pleaded guilty to
providing false statements in the acquisition of afirearm in
violation of 18 U.S.C. S 922(a)(6), and to one count of being
a felon in possession of a firearm in violation of 18 U.S.C.
S 922(g)(1). The district court departed downward 8 levels
from the applicable Guidelines range and imposed a
sentence of five months imprisonment, five months home
confinement, and three years supervised release based on
his extraordinary family ties and responsibilities. See id. at
1447-48.

The court of appeals vacated the sentence, finding that
the family circumstances the district court relied upon to
justify its departure were insufficient to take this case out
of the "heartland" of cases governed by the Guidelines. See
id. at 1452. The court first found that the district court's
reliance on the defendant's status as sole caretaker of his
children as a basis for the section 5H1.6 departure was
inconsistent with the court's decision in United States v.
Webb, 49 F.3d 636, which held that the defendant's status
as a single parent of a son did not constitute an
extraordinary circumstance warranting a departure. See id.
at 1450. With respect to the district court's reliance on

                               18
defendant's status as the caretaker of his diabetic, elderly
mother, the court of appeals observed that

       the record is scarce on the details of the care she
       requires. Nor does the record say anything about the
       mother's mental and physical abilities, including her
       ability to prepare her own meals and, perhaps,
       partially care for the children. Assuming the mother
       cannot administer her own medication or maintain a
       properly balanced diet, the record is equally silent on
       the availability of home nurse visits and other services
       for the sick and elderly.

        The record reflects the representation of Archuleta's
       counsel that six of his eight siblings in the Espanola
       area cannot undertake his mother's care, or that of
       Archuleta's children. There is no evidence regarding the
       remaining two siblings, or the availability of other
       alternatives for care.

Id. at 1450-51.

Similarly in United States v. Allen, 87 F.3d 1224 (11th
Cir. 1996), the defendant pleaded guilty to one count of
bank fraud in violation of 18 U.S.C. S 1344 after she
admitted to diverting approximately $138,000 of her
employer's funds into her own bank account. The relevant
Guidelines range called for a sentence of 12-18 months for
the crime. At sentencing, the defendant sought a departure
for extraordinary family ties and responsibilities based on
the fact that she was the primary caretaker of her 70-year
old father who suffered from Alzheimer's and Parkinson's
diseases. The district court departed 5 offense levels and
sentenced the defendant to one hour of imprisonment, and
36 months of supervised release. See id. at 1225.

The Court of Appeals for the Eleventh Circuit vacated the
sentence and remanded the matter to the district court for
resentencing. Citing several cases in which the courts
denied departures because the circumstances were not
atypical, the court stated that in its view, the defendant's
family responsibilities "though difficult, are not
extraordinary." See id. The court noted specifically that the
defendant was not "the only family member available to
care for her father. The Presentence Report indicates that

                               19
[the defendant's] husband and adult son take care of her
father to some extent, and that [the defendant] has a
brother and another adult child living nearby." Id. at 1226
n.1.

Finally, in United States v. Rybicki, 96 F.3d 754 (4th Cir.
1996), the defendant was convicted for conspiracy and
perjury. See id. at 756. The district court granted the
defendant a 5-level downward departure, in part on the
basis of his extraordinary family responsibilities. The Court
of Appeals for the Fourth Circuit initially reversed the
district court's 5-level departure. See United States v.
Rybicki, 1995 WL 420001 (4th Cir. July 13, 1995). But in
light of its decision in Koon, the Supreme Court vacated the
court of appeals' judgment and remanded the case for
further consideration. See Rybicki v. United States, 518
U.S. 1014, 116 S.Ct. 2543 (1996).

On remand, the court of appeals adhered to its earlier
ruling reversing the district court's departure, but modified
its reasoning after considering Koon. The court recognized
that the district court based its downward departure in part
on the fact that the defendant had a nine-year old son with
neurological problems who was in need of special
supervision, and a wife experiencing a period of fragile
mental health. It nevertheless held that the record
indicated that defendant's responsibilities to his son and
wife were not factors present to an "exceptional degree" so
as to warrant a departure under section 5H1.6. See id. at
759.

Here, in a situation consistent with those in Archuleta,
Allen, and Rybicki, Sweeting's son's Tourette's Syndrome
obviously requires that he receive additional attention and
care. Nevertheless, there is nothing extraordinary about the
nature or severity of his condition, his physician's
prescribed method of treatment, or the type of assistance
Sweeting provides, which compels the conclusion that no
other competent adult could make sure that her son
continues to exercise, eat and sleep properly, and take his
medication at the appropriate times. Sweeting maintains
throughout her brief that this regimen is an essential part
of her son's treatment, but again there is nothing in the
record suggesting that Sweeting (and only Sweeting) can

                               20
provide him with the care and attention he needs, or that
he as a teenager cannot take some responsibility for his
own care. This, we believe, is an important factor to
consider in determining whether the district court's section
5H1.6 departure was warranted. See Tocco, 200 F.3d at
435-36 (remanding for resentencing where district court
departed 2 levels for extraordinary family responsibilities
where the defendant's wife had cancer and emphysema;
court of appeals instructed that on remand, the district
court should "make specific findings regarding [the
defendant's] personal involvement in the care of his wife
and other family members," and should consider whether
his wife had "alternative sources of support," inasmuch as
the record demonstrated that the defendant had eight
children, seven of whom lived in the area and one of whom
was a doctor); see also Dyce, 91 F.3d at 1467 (finding that
district court's downward departure under section 5H1.6 on
the basis that the defendant was breast feeding her child at
the time of sentencing was erroneous; court reasoned in
part that "there is no evidence in the record supporting the
district court's statement in its Sentencing Opinion that the
infant was `totally dependent on [Dyce] for nourishment,'
nor is there any evidence that the child could not have been
fed from a bottle."); United States v. Shortt , 919 F.2d 1325,
1328 (8th Cir. 1990) (vacating district court's departure
based on defendant's position as the sole provider for his
family and the fact that he assisted his disabled father on
his farm; court of appeals determined that defendant's two
brothers could help their father on the farm, and
defendant's position as the provider for his family did not
make his case "extraordinary").

We also note that these decisions further demonstrate
the point that a family member's medical problems cannot
be viewed in a vacuum; rather, courts considering whether
to depart must weigh carefully, among other things, the
severity of the condition and the degree of extra attention
that it requires. See Gaskill, 991 F.2d at 82-84. Thus, while
we recognize that there is evidence in the record that
supports the conclusion that Sweeting's son has
experienced behavioral and learning difficulties associated
with his condition, we find it relevant to our ultimate
determination that her son is able to attend school and

                               21
participate in various sports activities with a large measure
of success. These facts, which are uncontroverted by the
parties, certainly undercut Sweeting's argument that her
son's disorder presents her with extraordinary family
responsibilities--at least to the extent that her argument
rests in part on the fact that her son is a "chronically infirm
child," see br. at 11, 18, who suffers from "a rare medical
condition." App. at 35. As the record reflects, Sweeting's
son attends high school, has been the captain of the
football team, and has participated in track andfield,
basketball, baseball and karate. App. at 34, 106-07.

Finally, Sweeting's counsel represented at the sentencing
hearing that Sweeting made arrangements with friends
"who she could trust" to take care of her children, including
her son, in the event that the district court rejected her
downward departure request and sentenced her to a period
of incarceration. App. at 178. In particular, Sweeting
informed the district court that she had arranged for
someone in Edgewood, Maryland, to care for her son. Id.
This fact further confirms that in Sweeting's absence, her
son would not be left without anyone to care for him and
assist him in managing his symptoms, which in turn
undercuts her apparent concern (and presumably that of
the district court) that her son's condition would go
unregulated in her absence. See Dyce, 91 F.3d at 1467
(noting, as a factor militating against departure, that the
children would be cared for by defendant's family rather
than placed in foster care); United States v. Abbott, 975 F.
Supp. 703, 709 (E.D. Pa. 1997) (rejecting defendant's
downward departure motion under 5H1.6 where his mother
and wife could care for his children, despite the fact that
wife and mother had medical problems); cf. Leandre, 132
F.3d at 807-08 (affirming district court's denial of departure
under section 5H1.6 where defendant was a single father of
two young children who might be placed in foster care if
defendant's brother refused to care for them; "[s]uch
evidence of a difficult family situation that will arise upon
[defendant's] incarceration is, unfortunately, no more
extraordinary than that deemed by the Dyce court not to be
sufficiently extraordinary for a departure").

It thus appears from a review of the record that the fact

                               22
that Sweeting's son is afflicted with Tourette's Syndrome
does not render this case distinguishable from Headley to
a degree sufficient to warrant a departure under section
5H1.6. Indeed, when compared to the facts in Archuleta,
Allen, Rybicki and other courts of appeals' decisions on
point, it is clear to us that the existence of his condition
does not present a situation in which incarceration would
cause Sweeting or her son to suffer an atypical hardship
sufficient to take this case out of the heartland of cases in
which a parent has committed a crime requiring
incarceration.5 At bottom, the unfortunate fact is that her
_________________________________________________________________

5. We recognize, as Sweeting points out in her brief, that there are
decisions by other courts of appeals that have upheld downward
departures under section 5H1.6 where the circumstances demonstrated
that the defendant was responsible for the care of a sick family member.
She contends that those cases support her position because the
defendants were responsible for the care of dependents, at least one of
whom was disabled. We reject this argument, however, as we do not
agree with Sweeting's assessment that the cases she cites are analogous
to the factual situation presented here. Indeed, a review of the cases
that
she relies upon confirms that each had an additional factual component
distinguishing it from this case. See, e.g., United States v. Haversat, 22
F.3d 790, 797 (8th Cir. 1994) (upholding district court's finding that
section 5H1.6 departure was warranted based on totality of
circumstances which indicated that defendant's wife had suffered "severe
psychological problems which [had] been potentially life threatening,"
defendant was involved actively in her care and wife's treating physician
characterized his participation as an "irreplaceable part" of his wife's
treatment plan, doctor's testimony confirmed that he (the doctor)
depended on the defendant to identify the beginning of his wife's
regression, and doctor stated on the record that he would have "grave
clinical concerns that her medical management could be safely
continued without the ongoing presence of her spouse"; court of appeals,
however, remanded for resentencing because the extent of the departure
was unreasonable); United States v. Sclamo, 997 F.2d 970, 972 (1st Cir.
1993) (upholding district court's departure under section 5H1.6 where
the defendant had developed a special and crucially important
relationship with girlfriend's 12-year old son, who suffered from
Attention Deficit Disorder and had been physically abused by his
biological father; child underwent weekly individual psychotherapy and
his psychologist submitted letters to the court concluding that the
defendant "played a major positive role in [the child's] therapy" and that
his continued presence was "necessary for [the child's] increasing

                               23
children will suffer the same type and degree of injury felt
by any family where a parent is incarcerated. Cf. United
States v. Maddox, 48 F.3d 791, 799 (4th Cir. 1995)
(remanding for resentencing for further development of the
record on the nature of defendant's family responsibilities,
but opining that evidence that defendant "relates well" to
his severely mentally retarded sister, provides"invaluable
care for her and his mother," and is "crucial to the
structure and stability of his family" was insufficient to
show that defendant's family ties were extraordinary);
United States v. Goff, 20 F.3d 918, 921 (8th Cir. 1994) (pre-
Koon decision applying de novo standard of review and
determining that district court erred in awarding section
5H1.6 departure where defendant supported three young
sons and his wife had begun receiving Social Security
disability benefits for a depression disorder and anxiety
attacks; court stated that defendant's family responsibilities
were "not outside the heartland of cases that the
Sentencing Commission has considered").

Sweeting contends nevertheless that her son's school
principal, Karen DeSantis, testified at the sentencing
hearing that Sweeting's continued parental efforts are
essential to her son's continued health and well-being
because his life is "on a tightrope." She argues that the
record confirms that she is an essential part of her son's
life because it is her extraordinary efforts that are keeping
him from falling "off that tightrope." Br. at 14.

To be sure, Ms. DeSantis stressed that Sweeting's son
needed a great deal of guidance and one-on-one contact,
and opined that his life "is on a tightrope." App. at 217,
220. But as the government correctly states, her testimony
on this point must be read in context. The fact that
Sweeting's son needs one-on-one guidance does not lead to
the conclusion that Sweeting is the only person capable of
_________________________________________________________________

progress"; and that the defendant "continues to be the only available
resource for positive bonding"); United States v. Alba, 933 F.2d 1117,
1122 (2d Cir. 1991) (upholding departure where record showed that the
defendant had a wife and two daughters, aged four and 11, lived with his
grandmother and disabled father who depended on the defendant to
assist him moving in and out of a wheelchair).

                               24
providing it. Compare United States v. Haversat , 22 F.3d
790, 797 (8th Cir. 1994); United States v. Sclamo, 997 F.2d
970, 972 (1st Cir. 1993). Moreover, to the extent that her
testimony supports the conclusion that Sweeting is a
positive influence on her son's life, as we have indicated
above, that circumstance is not the atypical or
extraordinary situation warranting a departure.

More importantly, it is clear to us from a reading of her
entire testimony on this point that her reference to
Sweeting's son's life being on a "tightrope" is based not
primarily on the fact that his Tourette's Syndrome has
affected his learning abilities and behavior, but on the
circumstance that he is a "Black male in Scranton" that
may succumb to peer pressure more readily.6 App. at 220.
Again, while certainly unfortunate, there is nothing
extraordinary about the effect of peer pressure on high
school children that takes this case out of the"heartland"
of cases sentenced under the Guidelines where the
defendants have family responsibilities to their adolescent
children. Indeed, we do not quarrel with the proposition
_________________________________________________________________

6. The following exchange between Sweeting's counsel and Ms. DeSantis
provides further context for the principal's statement that we quote in
the text:

       Q. Can you describe some of the peer pressures tha t may exist for
       a young Black male in the City of Scranton in 1999?

       A. Well, I think more--and you mentioned the you ng Black male,
       and I think that half of it has to be considered. Too many of the
       Black students will say to me, you know, Ms. DeSantis, I have so
       much pressure against me to achieve. So many of my friends will
       call me names if I try and achieve. And I can see[defendant's son]
       in a more open environment, a larger school if he goes to Scranton
       High School, more students, more freedom, I can see him bending
       to that pressure. He needs strong parental guidance, more than [her
       second child].

        I could see a tremendous problem with him if he doesn't have a
       firm hand on him. He needs someone that's going to be in the
       school the first type of slight problem, that's going to work with
the
       school and work with him. He is going to need that right from the
       beginning.

App. at 218-19.

                               25
that a parent is an important influence on a child's growth
and maturation into adulthood. But the fact that Sweeting
provided such guidance to her son does not differentiate
the situation here from other cases in which children whose
parents are incarcerated similarly lose that support system.7

Sweeting also maintains that her family situation is
similar to that involved in United States v. Gaskill, where
we held that the defendant's responsibility of providing the
only source of care to his mentally ill wife presented an
"extraordinary" family responsibility that took his case out
of the heartland of cases governed by the Guidelines. See
991 F.2d 82. Sweeting's protestations notwithstanding, our
review of the factual circumstances presented in Gaskill
confirms that the result in that case actually supports our
finding that the departure awarded here was a clear abuse
of discretion.

In Gaskill, a former president of a computer company
pleaded guilty to fraudulent use of social security numbers
to obtain things of value. See 991 F.2d at 83. At
sentencing, he sought a downward departure based on his
extraordinary family ties and responsibilities to his wife.
The record demonstrated that Gaskill resigned from his
well-paid position at a computer company, at least partially
because of his wife's erratic conduct caused by an onset of
mental illness. Gaskill's wife, a college graduate who in her
earlier years had careers as an interior decorator, teacher,
and businesswoman, suffered her first serious mental
illness following the birth of their fourth child. Over the
years, she experienced bouts of depression accompanied by
suicide attempts and was hospitalized in a number of
institutions, having displayed erratic and compulsive
behavior brought on by her manic depressive condition. See
id.
_________________________________________________________________

7. At oral argument, Sweeting's attorney pointed to the fact that
Sweeting's son had been teased by his peers because of the effects of his
condition on his behavior. He argued that the other children's
inappropriate actions supported his argument that Sweeting's son needs
his mother's influence in his life. But we cannot ascribe significance to
the fact that her son is being ridiculed by his adolescent peers, as
unfortunately that circumstance is not atypical.

                               26
At sentencing, Gaskill introduced letters and testimony
concerning the nature and severity of his wife's condition,
and his role in caring for her. He submitted a letter from
his wife's attending psychiatrist which indicated that she
had experienced intellectual deterioration evidenced by a
marked decrease in vocabulary and reduced verbal
communication. The record also demonstrated that his wife
watched television for 15 or 20 minutes a day, and stayed
in bed resting for the remainder of the day. Moreover,
Gaskill's wife had no personal friends and had no contact
with extended family members. Gaskill testified at the
sentencing hearing about the deleterious effect that his
wife's illness had on her relationship with her children,
explaining that they thought their mother was vindictive
and cruel, and did not understand that her behavior was
related to her mental illness. See id. at 83-84.

In addition to the testimony concerning the severe nature
of his wife's mental illness, the evidence overwhelmingly
demonstrated Gaskill's indispensable role in maintaining
his wife's well being. Indeed, the record showed that Gaskill
performed almost all household chores and was responsible
for administering proper medication for his wife. Moreover,
her psychiatrist opined that Gaskill's wife was totally
dependent on him, and that her medication was an
essential aspect of her treatment. See id. at 84.

The district court denied Gaskill's departure request,
stating that it lacked authority to depart under section
5H1.6. Consistent with the applicable Guidelines range, the
district court imposed a four-month period of incarceration,
followed by four months in a halfway house or a
community treatment center, and a period of supervised
release. See id. at 83. On appeal, we vacated Gaskill's
sentence and remanded the matter to the district court for
resentencing. We explained that section 5H1.6 does not
prohibit departures, but restricts them to cases where the
circumstances are extraordinary. We found that the
situation presented by Gaskill's family responsibilities to
his wife stood in "sharp contrast" to the cases in which
departure was found to be unwarranted. See id. at 85-86.
First, there was no real dispute that his wife's mental
condition was serious. Moreover, we pointed out that the

                               27
wife's current living status demonstrated the defendant's
pivotal role in her care. At oral argument, Gaskill's attorney
represented that since his incarceration, his wife had been
living alone, subsisting on food that her daughter left once
a week, did not leave the house, and had not seen her
doctor. See id. at 84 n.1.

In addition to the fact that the record demonstrated that
Gaskill's wife suffered from serious effects of her mental
illness and depended totally on her husband for care, we
also explained that "the length of imprisonment mandated
by the Guidelines and the nature of the offense are also
circumstances that should be factored into the equation" in
determining whether a departure is warranted. See id. at
85. In particular, we contrasted the circumstances in
Gaskill to the facts in Headley where the lower end of
Guidelines range for the defendant's drug conviction
required a sentence of 17 years imprisonment, and noted
that given the substantial sentence required, the children
were destined to be consigned to foster care even if the
sentence were reduced substantially. We further
distinguished Headley because that case presented "some
question whether the best interests of the children would
be served by allowing them to remain under the care of the
defendant who had exposed them to the atmosphere of
large scale drug dealings." Id. We summarized our holding
in Gaskill as follows:

       [t]he record demonstrates circumstances quite out of
       the ordinary. The degree of care required for the
       defendant's wife, the lack of close supervision by any
       family member other than the defendant, the risk to
       the wife's well being, the relatively brief--in one sense
       --imprisonment sentence called for by the Guidelines
       computation, the lack of any end to be served by
       imprisonment other than punishment, the lack of any
       threat to the community--indeed, the benefit to it by
       allowing the defendant to care for his ailing wife--are
       all factors that warrant departure.

Id. at 86.

We find the circumstances in this case clearly
distinguishable from the situation we faced in Gaskill for a

                               28
number of reasons. First, as previously mentioned, there
was no indication in Gaskill that the defendant had a
violent nature, nor was his offense classified as a violent
crime. Here, as in Headley, Sweeting was convicted of a
violation of the Controlled Substances Act, which Congress
considers a serious crime that endangers the community as
a whole. Moreover, unlike the defendant in Gaskill, where
we found that there was "no indication that the defendant
has a violent nature," id. at 85, the PSI confirms that
Sweeting engaged in violent behavior in the past in
connection with some of her prior crimes. Furthermore, it
is clear that unlike the defendant in Gaskill , Sweeting had
been engaged in a criminal business, i.e., the sale of
narcotics. Thus, we believe that this case presents a
situation in which "there would be some question whether
the best interests of the children would be served by
allowing them to remain under the care of the defendant,"
see id., who admitted to engaging in drug sales to enable
her to purchase items of value for herself and her children.
See Abbott, 975 F. Supp. at 710 (distinguishing Gaskill
because defendant had "a history of crimes involving actual
violence, the threat of violence, and the use of weapons").8

Second, the severity of Gaskill's wife's mental illness, the
degree of care required in response to it, and the lack of
available alternative sources of care further distinguish this
case from Gaskill. It is fair to say that the record in Gaskill
demonstrated to us that Gaskill's wife had limited (if any)
ability to function normally, and that her husband was
essential to sustaining her well being because the effects of
her illness alienated her remaining family and friends. The
degree of care that Sweeting's son requires as a result of
his disorder pales in comparison; the record shows that
Sweeting exercises with him in the morning, monitors his
diet by restricting the type of foods he eats, makes sure
that he takes his medication and gets sufficient sleep, and
sees the doctor once a year. But as we previously found,
there is nothing in the record indicating that another
_________________________________________________________________

8. The PSI further stated that after Sweeting's arrest, government agents
executed a search warrant at her residence in Scranton, finding, inter
alia, a Ruger .45 caliber semi-automatic pistol and two loaded
magazines. PSI P 13.

                               29
responsible adult could not (and would not) perform these
obligations in Sweeting's absence. Sweeting made
arrangements for her son to live with a friend in Maryland
that she trusted, and it would be mere speculation on our
part if we were to find that the person she chose would be
unable or unwilling to monitor her son's care as necessary.
Moreover, unlike the situation presented in Gaskill, it
cannot be said that her son's condition requires constant,
around-the-clock attention, and there is no statement from
Dr. Lilik indicating that his continued health depends
totally on her presence in the home. Compare Gaskill, 991
F.2d at 84.

Finally, we point out that Sweeting's sentence under the
Guidelines is significant, even after we account for the
other departures the district court granted and which the
government does not challenge on this appeal. Sweeting
was subject to a sentence in the Guidelines range of 41-51
months, which is a substantially longer period of time than
the eight-month sentence mandated by the applicable
Guidelines range in Gaskill. In Gaskill , the relatively light
Guidelines sentence was a factor that militated in favor of
granting a departure under section 5H1.6, inasmuch as
only a slight departure would yield the necessary result of
keeping the family intact. See id. at 85-86. Here, however,
the district court granted Sweeting a 12-level departure in
order to achieve the same result, which, as we have
indicated, she did not deserve in the first place.

Finally, in view of the record presented, we see no merit
in the argument that a finding of an abuse of discretion in
this case ignores the district court's "special competence" in
assessing the "ordinariness or unusualness" of a particular
case. See Koon, 518 U.S. at 99, 116 S.Ct. at 2047. To the
contrary, we recognize the indispensable role of the district
court in making the fact-intensive determination that is
critical to the analysis required by section 5H1.6 and our
case law applying that provision. We nevertheless agree
with the Court of Appeals for the Second Circuit's
observation that appellate courts "must ensure that the
circumstances relied upon to justify the downward
departure are [not] so far removed from those found
exceptional in existing case law that the sentencing court

                               30
may be said to be acting outside permissible limits." See
Faria, 161 F.3d at 762 (internal quotation marks omitted)
(alteration in original); see also Koon, 518 U.S. at 98, 116
S.Ct. at 2047 (explaining that the determination of whether
a given factor is present to an exceptional degree must be
made by comparing the facts of other Guidelines cases).
Thus, while we must approach the issue by according the
district court's determination "substantial deference" in
accordance with the Supreme Court's decision in Koon, see
Iannone, 184 F.3d at 227, we do not read Koon as
constraining our role to the point that it would require us
to uphold a district court's departure determination that is,
in our opinion, a clear abuse of discretion. Here, based on
the record presented, we conclude that the district court
acted outside the boundaries of its discretion infinding
extraordinary family ties and responsibilities warranting a
departure under section 5H1.6.9

IV. CONCLUSION

For the foregoing reasons, we hold that Deneen
Sweeting's family ties and responsibilities are not
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9. The government argues in the alternative that if we affirm the district
court's initial decision to depart under 5H1.6, the court nonetheless
acted unreasonably in granting the degree of departure that it did. Given
our resolution of this appeal, it is not necessary for us to address in
detail the government's argument on that second point. Nevertheless, we
note that, while not critical to our analysis, we agree that the district
court abused its discretion in awarding the degree of departure that it
did. Unlike the situation in Gaskill where we found that there was a
"lack of any end to be served by imprisonment other than punishment,"
see 991 F.2d at 86, imprisonment in this case would serve the important
purposes underlying the Guidelines themselves--deterrence,
incapacitation, just punishment and rehabilitation. See 1998 U.S.S.G.
ch. 1, Pt. A, intro. As the PSI in this case reflects, Sweeting is a
recidivist
who came before the sentencing court with a Criminal History Category
VI despite her relatively young age (age 31 on the date of her arrest). We
think it is fair to say that some period of incarceration is necessary in
this case to punish Sweeting for her most recent and very serious
criminal conduct. Thus, we believe that the district court's sentence of
five years probation with 12 months of home confinement wholly
disregarded the extent of Sweeting's prior criminal history and the
serious nature of her most recent illegal conduct.

                               31
"extraordinary" in the sense contemplated by section 5H1.6,
and that she was not entitled to any downward departure
on that basis. Accordingly, we will vacate the judgment of
conviction and sentence entered in the district court on
August 26, 1999, and will remand for resentencing
consistent with this opinion.

A True Copy:
Teste:

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

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