IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA )

)

v. )xxxxxxxxxxxxxxxxxx

)

xxxxxxxxxxxxx )

______________________________)

MOTION FOR DOWNWARD DEPARTURE

COMES NOW DEFENDANT, xxxxxxxxxx, by and through undersigned counsel, and hereby files this Motion for Downward Departure. In this motion, Mr. xxxxxxxxxxxxxx requests that this Court depart downwardly several levels from the sentence otherwise applicable pursuant to the authority provided the Court under 18 U.S.C. §§ 3553(b) and 5K2.13 of the Sentencing Guidelines. Mr. xxxxxxxxxxxxxx will request a downward departure at his sentencing, which is scheduled for Tuesday, May 19th, at 9:30 a.m. In support of this Motion, Mr. xxxxxxxxxxxxxx shows the Court as follows:

FACTUAL BACKGROUND

Mr. xxxxxxxxxxxxxx plead guilty to making a false statement during the acquisition of a firearm in violation of 18 U.S.C. § 924(a)(1)(A). The Presentence Report (PSR) calculates Mr. xxxxxxxxxxxxxx' total offense level at 12 and criminal history at V, giving him a Guideline range of 27 to 33 months. (PSR p. 11).

Mr. xxxxxxxxxxxxxx is a 35 year old who has lived most of his life with his parents. He has exhibited diminished mental capacity from early on in his life. School records and Intelligence Quotient (I.Q.) testing indicate that as of 1971, Mr. xxxxxxxxxxxxxx was mentally retarded. (PSR 51).

Concerned with Mr. xxxxxxxxxxxxxx' competency and mental capacity, the defense retained Dr. Gary DeBacher to evaluate Mr. xxxxxxxxxxxxxx. Dr. DeBacher is the supervising psychologist of the Forensic Unit at Georgia Regional Hospital in Atlanta. Over the last 20 years he has taught a number of courses at Emory University and has provided evaluations in cases pending in Georgia State and Federal Courts. A copy of Dr. DeBacher's curriculum vitae is attached hereto as Exhibit "A".

Dr. DeBacher conducted an out-patient evaluation of Mr. xxxxxxxxxxxxxx to assess intellectual processes. Dr. DeBacher met with Mr. xxxxxxxxxxxxxx on three separate occasions during April of 1998. Additionally, Dr. DeBacher interviewed members of Mr. xxxxxxxxxxxxxx' family and reviewed Mr. xxxxxxxxxxxxxx' school and medical records. Following his evaluation, Dr. DeBacher prepared a report, attached hereto as Exhibit "B."

After administering a battery of tests, Dr. DeBacher found that Mr. xxxxxxxxxxxxxx had a verbal scale I.Q. score of 54, a Performance Scale I.Q. score of 48 and a Full I.Q. score of 46. (DeBacher Report, p.1). These scores indicate that Mr. xxxxxxxxxxxxxx is functioning in the moderate range of mental deficiency (Id.) A review of Mr. xxxxxxxxxxxxxx' school records indicated to Dr. DeBacher that Mr. xxxxxxxxxxxxxx "never has progressed beyond 'primer' reading skills, and is functionally illiterate." (Id. p. 2). Additionally, after reviewing Mr. xxxxxxxxxxxxxx' adult medical records, Dr. DeBacher notes that Mr. xxxxxxxxxxxxxx has been diagnosed as having schizophrenia and more recently schizoaffective disorder, bipolar type. In Dr. DeBacher's opinion, the schizophreniform illness has caused Mr. xxxxxxxxxxxxxx' I.Q. to drop to the moderately deficient range. (Id.)

Dr. DeBacher concludes that because of his diminished capacity, Mr. xxxxxxxxxxxxxx could not have read the ATF form where Mr. xxxxxxxxxxxxxx failed to indicate that he was a convicted felon. (Id. p. 3). Similarly, Dr. DeBacher concludes that Mr. xxxxxxxxxxxxxx would not have understood the form if it was read to him. (Id.) A copy of this form is attached hereto as Exhibit "C."

Aside from his diminished capacity, Mr. xxxxxxxxxxxxxx has been addicted to cocaine for a significant portion of his adult life. (PSR ¶55). Hospital records reveal that Mr. xxxxxxxxxxxxxx received medical treatment for drug overdose and/or addiction on several occasions. Remarkably, Mr. xxxxxxxxxxxxxx stopped using drugs sometime in 1996. (Id.) Mr. xxxxxxxxxxxxxx attends Narcotics Anonymous (NA) several times a week. Additionally, Mr. xxxxxxxxxxxxxx attends weekly drug and alcohol counseling meetings at the First Mount Pleasant Baptist Church. (PSR ¶ 43). Mr. xxxxxxxxxxxxxx also attends monthly prayer services at the church and assists in an outreach ministry to area homeless people. (Id.) As part of his bond conditions, Mr. xxxxxxxxxxxxxx is periodically tested by Pretrial Services for drug usage. Urinalysis conducted by Pretrial Services reveals no drug use by Mr. xxxxxxxxxxxxxx while on bond. (PSR ¶56). Family and friends of Mr. xxxxxxxxxxxxxx have noticed the change a drug-free lifestyle has had on Mr. xxxxxxxxxxxxxx. (PSR ¶ 43).

Mr. xxxxxxxxxxxxxx' condition is atypical. His mental condition places his case outside of the heartland of cases covered by the Sentencing Guidelines. Additionally, his post-offense rehabilitation efforts in staying sober are remarkable. For these reasons, Mr. xxxxxxxxxxxxxx is asking this court to depart downwardly from the applicable guideline range to take into account Mr. xxxxxxxxxxxxxx' diminished mental capacity and his post-offense rehabilitation efforts. Relevant authority is discussed below.

ARGUMENT

I. The Statute and the Guidelines Authorize Downward Departures.

This Court has the statutory authority to depart from the Guidelines in those cases in which the Court finds "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission." 18 U.S.C. §3553(b); U.S.S.G. §5K2.0. Indeed, figures released by the Sentencing Commission indicate that in 1996 district court judges downwardly departed in almost one third of their cases. As the table on page 5 illustrates, of these downward departures, 19.2% were in cases involving substantial assistance and the remainder 10.3% were for other cases under U.S.S.G. §5K2.0.

The table was prepared by the Sentencing Commission and published in Guide Lines, January 1998, p. 5. Thus, it is clear this Court is authorized to depart downwardly if appropriate.

II. This Court Should Depart Downward From The Applicable Guideline Range Based On Mr. xxxxxxxxxxxxxx' Diminished Capacity.

This Court has the discretionary authority to depart downward from the applicable Guideline range pursuant to Guidelines section 5K2.13. Section 5K2.13 provides:

If the defendant committed a non-violent offense while suffering from diminished mental capacity not resulting from voluntary use of drugs or other intoxicants, a lower sentence may be warranted to reflect the extent to which reduced mental capacity contributed to the commission of the offense, provided that the defendant's criminal history does not indicate a need for incarceration to protect the public.U.S.S.G. § 5K2.13, p.s. Therefore, once the Court has found that Mr. xxxxxxxxxxxxxx meets the criteria of § 5K2.13, it has the authority to depart downward from the applicable Guideline range.

In a number of decisions, the Eleventh Circuit Court of Appeals has reviewed the appropriateness of a downward departure for diminished capacity under this policy statement. See e.g. United States v. Dailey, 24 F.3d. 1323 (11th Cir. 1996); United States v. Russell, 917 F.2d 512 (11th Cir. 1990).

For a departure to be appropriate under this section, four requirements must be met. First, the defendant must have committed a non-violent crime. Second, the defendant must be suffering from a "significantly reduced mental capacity" not triggered by voluntary intoxication. Third, the diminished capacity must have contributed to the commission of the offense. Finally, the defendant's criminal history must not indicate a need for incarceration to protect society. U.S.S.G. §5K2.13. A review of these four factors indicates that a downward departure is appropriate in Mr. xxxxxxxxxxxxxx' case.

First, Mr. xxxxxxxxxxxxxx pled guilty to a non-violent crime. In determining whether the offense of conviction is a crime of violence precluding the application of U.S.S.G. §5K2.13, the Eleventh Circuit looks to the definition of crime of violence contained in Application Notes 1 and 2 to U.S.S.G. §4B1.2. Russell, 917 F.2d at 517. Under this definition, Mr. xxxxxxxxxxxxxx was not convicted of a crime of violence. Because Mr. xxxxxxxxxxxxxx was not convicted of a "crime of violence," the first requirement is met.

Second, the defendant must have been suffering from a "significantly reduced mental capacity" at the time of the offense not caused by voluntary intoxication. U.S.S.G. § 5K2.13. Mr. xxxxxxxxxxxxxx suffers from a significantly reduced mental capacity, as evidenced by his extremely low I.Q. level. Mr. xxxxxxxxxxxxxx' I.Q. was measured in 1971 as being at a level of 63. (PSR ¶ 51). At that time, Mr. xxxxxxxxxxxxxx' I.Q. level indicated that he was mentally retarded. (PSR ¶ 51). Mr. xxxxxxxxxxxxxx struggled throughout his school career, until he left school after the ninth grade. His school records detail his difficulty in performing even basic tasks. Compounding his difficulty in school, on the last day of his ninth grade year, Mr. xxxxxxxxxxxxxx was severely beaten by 22 fellow students. (PSR ¶ 50).

Since leaving school, Mr. xxxxxxxxxxxxxx has been diagnosed as having schizophrenia and more recently schizoaffective disorder, bipolar type. (DeBacher Report p. 2). As a result, Mr. xxxxxxxxxxxxxx' I.Q. has dropped to the point that his full I.Q. score in April 1998 was 46. (Id., p 1).

Numerous courts have recognized mental retardation and low I.Q. as enough to constitute reduced mental capacity. For example, in United States v. Mena, the defendant was convicted of conspiracy to distribute and possess with intent to distribute cocaine. United States v. Mena, 968 F.Supp. 115 (E.D.N.Y. 1997). The court held that the defendant was entitled to a downward departure under U.S.S.G. § 5K2.13, based on his mental retardation. Id. at 117. In United States v. Cotto, the defendant was convicted of a conspiracy to obstruct commerce. United States v. Cotto, 793 F.Supp. 64, 65 (E.D.N.Y. 1992). In granting the defendant a downward departure pursuant to § 5K2.13, the court cited the defendant's I.Q. of 71 and his "near retardation" as one of the factors justifying a downward departure. Id. at 65-67. See also, United States v. Chambers, 885 F.Supp. 12, 14 (D.D.C. 1995) (holding defendant's "borderline mental defective level of intelligence" as sufficient for "diminished capacity" and departing from a range of 188 to 235 months to a 21-month sentence); United States v. Blackwell, 897 F.Supp. 586, 588 (D.D.C. 1995) (holding defendant's diminished capacity under § 5K2.13 was shown in I.Q. under 75). Mr. xxxxxxxxxxxxxx' I.Q. is well below the I.Q. levels cited in these opinions which courts found justified a motion for downward departure.

Moreover, Mr. xxxxxxxxxxxxxx' diminished capacity is not caused by voluntary intoxication. While Mr. xxxxxxxxxxxxxx has used cocaine base extensively, his low I.Q. scores have been obtained during periods when Mr. xxxxxxxxxxxxxx was sober. (PSR ¶ 51, DeBacher Report p. 1). Thus, it is clear that Mr. xxxxxxxxxxxxxx' mental retardation is not caused by alcohol or drug abuse. See e.g. United States v. Speight, 726 F.Supp. 861, 868 (D.D.C. 1989) (holding that defendant that suffers from diminished capacity and in addition is addicted to drugs is entitled to a downward departure under U.S.S.G. § 5K2.13).

Third, under § 5K2.13, there must be a nexus between Mr. xxxxxxxxxxxxxx' diminished capacity and his offense. Mr. xxxxxxxxxxxxxx' significantly reduced mental capacity and present schizophreniform illness unquestionably contributed to the commission of the offense. As Dr. DeBacher concluded in his Report, Mr. xxxxxxxxxxxxxx could not have read the form that he signed. (DeBacher Report, p. 3). Moreover, Mr. xxxxxxxxxxxxxx could not have understood the form if it was read to him. (Id.) As the court stated in United States v. Mena, "[t]he causal link exists here. Defendant, given his [low] I.Q., did not, at the time of commission, understand the significance or repercussions of his actions." United States v. Mena, 968 F.Supp. 115, 117 (E.D.N.Y. 1997). See also, United States v. Lewinson, 988 F.2d 1005 (9th Cir. 1993) (stating that substantial evidence that defendant suffered from significantly reduced mental capacity, at the time he committed the instant offense, warranted downward departure). Finally, under § 5K2.13, the defendant's criminal history must not "indicate a need for incarceration to protect the public." U.S.S.G. § 5K2.13. Mr. xxxxxxxxxxxxxx has never been convicted of a "crime of violence" as defined by U.S.S.G. § 4B1.2. Moreover, Mr. xxxxxxxxxxxxxx was arrested on September 23, 1997, and released on bond on September 26, 1997. (PSR p.1). While out on bond, Mr. xxxxxxxxxxxxxx has been supervised by Pretrial Services without any problems. As part of this supervision, Mr. xxxxxxxxxxxxxx undergoes random drug testing. Mr. xxxxxxxxxxxxxx has not used drugs while on bond. (PSR ¶ 56).

Mr. xxxxxxxxxxxxxx meets all of the requirements of § 5K2.13 and his significantly reduced mental capacity warrants a downward departure. Mr. xxxxxxxxxxxxxx' palpable mental disability makes it impossible that he could have understood the significance of his actions or the serious consequences that would follow.

III. This Court Should Depart Downward From The Applicable Guideline Range Because of Mr. xxxxxxxxxxxxxx' Extraordinary Post-Offense Rehabilitation.

A year and a half ago the United States Supreme Court decided the case of Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). In Koon, the Supreme Court set forth the analysis for deciding whether to depart from an applicable guideline sentence. Specifically, in deciding whether to depart from a guidelines sentence this Court should consider:

(1) What features of this case, potentially, take it outside the Guidelines' 'heartland' and make of it a special, or unusual, case?

(2) Has the Commission forbidden departures based on those features?

(3) If not, has the Commission encouraged departures based on those features?

(4) If not, has the Commission discouraged departures based on those features?

Koon, 116 S.Ct. at 2045 (quoting United States v. Rivera, 994 F.2d 942,949 (1st Cir. 1993). Koon makes it clear that only those factors which the Sentencing Commission has forbidden cannot provide an appropriate basis for departure. All others may potentially provide a basis for departure under appropriate circumstances. Id.

A number of courts have considered whether in exceptional circumstances post-offense rehabilitation efforts can serve as a basis for downward departure. The Eleventh Circuit has held that post-arrest, pre-sentence recovery for drug addiction may justify a downward departure in extraordinary cases. United States v. Williams, 948 F.2d 706, 710-11 (11th Cir. 1991). Other courts have agreed. See e.g. United States v. Maddalena, 893 F.2d 815, 817-18 (6th Cir. 1989)(defendant's efforts "to stay away from drugs" may be considered as bases for departure)(holding limited on other grounds).

Moreover, in our own district, in the case of United States v. Bilbrey, 1:95-CR-567-01 (JOF), the Honorable Judge J. Owen Forrester granted a motion for downward departure for post-offense rehabilitation. In that case, Mr. Bilbrey was convicted of one count of possession of a machine gun in violation of 26 U.S.C. §§ 5861(d) and 5871. During his sentencing, the defense presented evidence that while the defendant had a substance abuse problem, with the help of his family and church, the defendant had been drug-free since his arrest (that is, for a period of approximately 6 months). Additionally, and according to the defendant's family, Mr. Bilbrey's attitude had changed and Mr. Bilbrey attended church twice a week and counseled young persons. At sentencing, Mr. Bilbrey was facing an offense level of 15. Finding that Mr. Bilbrey's post-offense rehabilitation efforts were extraordinary, Judge Forrester downwardly departed 6 levels and sentenced Mr. Bilbrey based on a level 9, to 6 months in custody. A copy of the Judgment & Commitment Order in that case is attached hereto as Exhibit "D."

All cases discussing post-offense rehabilitation share one common theme, the rehabilitation must be extraordinary. In this case, Mr. xxxxxxxxxxxxxx' recovery has been extraordinary. Mr. xxxxxxxxxxxxxx has gone from being addicted to drugs to leading a clean life. Mr. xxxxxxxxxxxxxx attends Narcotics Anonymous meetings and drug and alcohol counseling through his church several times a week. (PSR ¶43). Pretrial Services' testing indicates Mr. xxxxxxxxxxxxxx has been sober since his arrest in this case. Mr. xxxxxxxxxxxxxx' ability to defeat his addiction has been extraordinary and merits credit.

CONCLUSION

Defense counsel asks that this Court depart six levels, to a level 6, which carries a range of 9-15 months. The defense asks that Mr. xxxxxxxxxxxxxx be sentenced to 12 months home confinement, which is the maximum term that can be served in home confinement. Undersigned counsel also asks that Mr. xxxxxxxxxxxxxx be sentenced to three years supervised release, which is the maximum term authorized by statute. In this way, Mr. xxxxxxxxxxxxxx will be able to continue attending his Narcotic Anonymous meetings and continue on the road to rehabilitation. This sentence would also take into account his diminished mental capacity. For all the foregoing reasons, undersigned counsel prays that this motion be granted.

Dated: This ___ day of May, 1998.

Respectfully submitted,

________________________________

VIONNETTE REYES GEORGIA STATE BAR NUMBER: 601290

ATTORNEY FOR CHRISTOPHER xxxxxxxxxxxxxx

Federal Defender Program, Inc.

Suite 3512

101 Marietta Tower

Atlanta, Georgia 30303

404/688-7530

CERTIFICATE OF SERVICE

This is to certify that I have this day served a copy of the foregoing Motion For Downward Departure upon:

Tom Devlin, Esq.

Assistant United States Attorney

1800 Richard B. Russell Building

75 Spring Street, S.W.

Atlanta, GA 30335

by hand delivering a copy of the same.

Dated: This ___ day of May, 1998.

________________________________

VIONNETTE REYES

GEORGIA STATE BAR NUMBER: 601290

ATTORNEY FOR CHRISTOPHER xxxxxxxxxxxxxx