Opinion
CAUSE NO. IP03-0122-CR-01-H/F
December 3, 2003
SENTENCING ENTRY
On October 21, 2003, defendant Susan Guerrero pled guilty to violating 18 U.S.C. § 871 (a) by threatening to kill the President of the United States. The parties have agreed on the Sentencing Guideline calculations for the case, which produce a guideline range of 33 to 41 months in prison. The parties also agree that some downward departure is appropriate in this case. They differ substantially on the appropriate extent of such a departure.
After hearing the parties' presentations at the sentencing hearing, the court took under advisement the issue of the appropriate sentence in this case. In light of the complexity of the issues and the new requirement in the "PROTECT Act" calling for written findings in support of downward departures, at least where the government does not consent to the departure, the court states here the reasons for the sentence being imposed orally today. See 18 U.S.C. § 3553(c) (2003), as amended by Pub.L. 108-21, Title IV, § 401(c). In making a decision, the court must consider the nature and circumstances of the offense and the history and characteristics of the defendant. 18 U.S.C. § 3553(a)(1). The court sets forth the facts in that order, then turns to the guideline and departure issues.
I. The Nature and Circumstances of the Offense
On April 2, 2003, Mrs. Guerrero traveled by bus from Richmond, Indiana to Washington, D.C. She had with her a large kitchen knife. The next day, on April 3, 2003, Mrs. Guerrero placed a telephone call to her mental health caseworker at the Dunn Mental Health Center in Richmond. She told her caseworker that she had traveled to Washington to kill the President but had changed her mind because it was too far to walk from the bus station to the White House. Mrs. Guerrero then boarded another bus and returned to Richmond. When she arrived on April 4th, she went to the Dunn Mental Health Center, where employees took the knife that had been in her purse. At that time, no contact was made with any law enforcement personnel.
On April 24, 2003, Mrs. Guerrero was committed voluntarily to the Reid Memorial Hospital in Richmond because of suicidal thoughts. At the time of admission, she was given a Global Assessment of Functioning or GAF score of 20. A GAF range of 11 to 20 can describe a person who poses "[s]ome danger of hurting self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement). . . ." Diagnostic and Statistical Manual of Mental Disorder 34 (4th ed. 2000) (DSM-IV). On April 25th, a social worker from Reid Hospital called the United States Secret Service. She reported Mrs. Guerrero's trip to Washington and later statements to therapists about the trip and her desire to kill the President.
Later on April 25th, two Secret Service agents interviewed Mrs. Guerrero in the presence of two Reid Hospital staff members. She told the agents that she did not like President Bush. She confirmed the report that she had traveled to Washington to kill him. She said she had returned to Richmond because the time was not right to kill the President and because it was too far to walk from the bus station to the White House. Mrs. Guerrero also told the agents that she was thinking about returning to Washington to kill the President, and that she was considering buying a firearm for her next trip.
Mrs. Guerrero was charged in a criminal complaint with violating 18 U.S.C. § 871 (a), which makes it a crime to threaten to kill, kidnap, or injure the President and officials in the line of presidential succession. At her initial appearance on May 2, 2003, the court ordered a mental health evaluation and assigned her to lock-down status at a community correction center. A few days later, she was transferred to the custody of the Bureau of Prisons for a mental health study at the Federal Medical Center in Carswell, Texas. The evaluation found that she was mentally competent to stand trial but that she had major depressive disorder and a borderline personality disorder. Her time at the Bureau of Prisons facility resulted in substantial improvements in her mental health, due in part to the substitution of one antidepressant drug for another in her medication regimen. She was given a "guarded" prognosis and was then returned to this district after the evaluation. On August 11, 2003, Mrs. Guerrero appeared again before a magistrate judge in this district. She was released pending trial on the conditions that she live with her mother, stay on her medications, and stay away from her husband. Since that time, she has been compliant and cooperative with the conditions of pretrial release.
With respect to requiring Mrs. Guerrero to stay away from her husband, the Bureau of Prisons psychologist who examined her in June 2003 cautioned about the difficulty in treating borderline personality disorder and then warned:
In addition, Ms. Guerrero's home environment will be critically important. Reports have indicated Ms. Guerrero's husband has been controlling, verbally abusive, at times unsupportive of mental health treatment, and on some occasions physically abusive. If these reports are true and Ms. Guerrero returns to such an environment, there is very little mental health professionals could do to ensure her emotional stability.
Forensic Evaluation 10 (June 13, 2003) (Dr. Trent H. Evans, Ph.D.).
II. The Defendant's Background, Mental Illness, and Therapy
Mrs. Guerrero is 38 years old and has lived most of her life in eastern Indiana. She first married when she was 18 years old and quickly had two daughters. She then left her husband and daughters in 1995, when the family lived in Florida. She and her first husband divorced in 1996 and custody of the girls was awarded to their father. Mrs. Guerrero has had little contact with her daughters in recent years, with rare visits and occasional phone calls. The extensive mental health records show that Mrs. Guerrero has deep feelings of guilt for abandoning her daughters and has struggled with the issue ever since. After she returned to Indiana, Mrs. Guerrero remarried. The record before this court includes extensive documentation of physical and mental abuse of Mrs. Guerrero in that marriage. The couple began some therapy and counseling. Her husband attended only one session, while Mrs. Guerrero has continued over a period of years. See Ex. 3.
Mr. Guerrero is not a party to these proceedings and has not had an opportunity to be heard with respect to statements concerning his actions. All Exhibits referred to in this entry are selected portions of defendant's mental health records, which were submitted as Exhibits to defendant's sentencing memorandum.
Mrs. Guerrero has a long history of treatment for depression and related conditions. The doctor who examined her at Reid Hospital on April 25, 2003 noted her "previous extensive old record" and summarized that she had "a long history of symptoms of depression and self-destructive behaviors including overdoses," as well as a history of impulsive behaviors. Ex. 22. Some specific incidents in this history deserve mention, for this history plays an important part in the court's sentencing decision.
In August 2000, Mrs. Guerrero went to the Dunn Mental Health Center, but her symptoms were so severe that she was hospitalized at Reid Hospital. She was discharged at the urging of her husband and lived with her sister for two weeks. She then returned to her husband. That return was followed by decompensation and another hospital stay in which she was diagnosed with post-traumatic stress disorder and experienced a dissociative episode with withdrawal, during which she curled up into a fetal position. Ex. 3; see also Exs. 4 5 for outpatient care. The doctors caring for Mrs. Guerrero gave her samples of antidepressant medication. Her husband apparently had insurance that should have covered the costs, but he did not think she needed medication. Ex. 8. As a result, the doctors have continued providing her with enough free samples to keep her medicated for the depression.
Mrs. Guerrero was arrested in October 2000 for trying to break into an auto showroom next door to the Dunn Mental Health Center. Her stated intention was to steal a car so she could drive to Florida to see her daughters. Exs. 3 6. This incident did not result in a criminal conviction, but it received a good deal of attention in the outpatient records in the following months.
Then, on December 28, 2000, Mrs. Guerrero stole a police car in her hometown of Winchester, Indiana. She was walking by the police station at about 7 a.m. and noticed that one police car had the motor running and was not locked. She got in and drove to her sister's nearby home, where she parked the car. She was quickly located and arrested. The stolen police car resulted in a criminal charge of auto theft as a class D felony. After significant delays, she eventually pled guilty and was sentenced to 60 days in jail followed by probation. She was on probation from that offense when she committed the offense in this case. In the meantime, she had more hospitalizations, including one in January 2001.
In April 2001, after continued depression and self-destructive thoughts, Mrs. Guerrero was hospitalized again. She reported that her medications at the time (Zyprexa and Paxil) seemed to be losing effectiveness in controlling her self-destructive thoughts. Ex. 14.
Mrs. Guerrero was first admitted to the Richmond State Hospital on May 7, 2001. The commitment was ordered by a state court, possibly in connection with the pending auto theft case. At that time, she already had a long history of depression and was described as "the product of a dysfunctional life, from childhood into adulthood." Ex. 1. Upon admission, she was diagnosed with major depression, impulse control disorder, borderline personality, with severe stressors. She was given a GAF score of 35 upon admission. Id. That score reflects very serious impairments and very limited ability to cope with life. See DSM-IV at 34. Hospital records reflect a personal history of two unsuccessful marriages, poverty, and a history of abusive relationships going back to childhood and adolescence, including some sexual abuse as a child and adolescent. See Exs. 2 3. The state hospital planned to stabilize her with medications and then to refer her to the Dunn Mental Health Center in Richmond for care in the community.
The DSM-IV describes the GAF range of 31-40: "Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school."
The Richmond State Hospital released her on August 13, 2001. At that time, her diagnosis was acute depression (not otherwise specified), antisocial personality traits, and stressors of a socioeconomic nature. Her GAF score was 70. Her prognosis was noted as "good" as long as she continued to take her medication regularly. Ex. 2.
The DSM-IV describes a GAF range of 61 to 70: "Some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." DSM-IV at 34.
On March 11, 2002, Mrs. Guerrero was sentenced for the December 2000 theft of the police car. The sentence was 18 months prison, with all but 60 days suspended, followed by probation. She served her 60 days in jail from March to May 2002. She continued to have outpatient therapy and medication. See Exs. 16-20.
Especially important for present purposes is the record of an outpatient visit on February 25, 2003, about five weeks before her trip to Washington. She was fearful and anxious. In the past, she had taken many "impulsive" overdoses of various medications. On February 25th, she reported that she had felt an impulse to overdose but had managed to stop herself and to talk about it instead. Ex. 19. The therapist "praised the patient for using words instead of impulsive behaviors and she appeared to be somewhat reassured by this especially when I repeated this in different words on a few occasions." Id. The therapist reported that he and Mrs. Guerrero "talked together about possible approaches, which will include continued training and support by the staff for her using words instead of impulsive and self destructive gestures." Id.
The first mention of President Bush in this record was on March 18, 2003, when American and British military forces were poised to invade Iraq. The record of Mrs. Guerrero's therapy session reports:
Client is obsessed with wanting to direct her disappointment and hatred for President Bush trying to "kill people". She reports she believes that he deserves the same. She has even reported that she wrote the President an e-mail stating her beliefs. Client does have a history of behavioral impulsivity. Client stated that she does not believe that she will act on these beliefs.
Ex. 20. Two weeks later, though, she took her bus trip to Washington.
III. The Guilty Plea and the Offense
When Mrs. Guerrero pled guilty, the court raised questions with both counsel to clarify the exact factual basis for the plea. Section 871(a) of Title 18 of the United States Code provides in full:
Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined under this title or imprisoned not more than five years, or both.
Because Section 871(a) punishes speech, the Supreme Court has required proof of what has been called a "true threat." Watts v. United States, 394 U.S. 705, 708 (1969); United States v. Khorrami, 895 F.2d 1186, 1192 (7th Cir. 1990); United States v. Hoffman, 806 F.2d 703, 706 (7th Cir. 1986). The government is not required to prove that the defendant actually intended to carry out the threat, but the government must show that the defendant made the statement "in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm upon or to take the life of the President." United States v. Hoffman, 806 F.2d at 707, quoting Roy v. United States, 416 F.2d 874, 877 (9th Cir. 1969).
One essential element of the crime of threatening the President is that the statement must communicate an intent to act presently or in the future, not in the past. A threat means "an avowed present determination or intent to injure presently or in the future." Black's Law Dictionary 1480 (6th ed. 1990); United States v. Marino, 148 F. Supp. 75, 77 (N.D. Ill. 1957) (adopting this definition of "threat" and dismissing indictment charging threat against President); United States v. Metzdorf, 252 F. 933, 938 (D. Mont. 1918) (same). Accordingly, a person's statement that she wanted to kill the President yesterday, but that today she feels much better and no longer wants to do so, may not amount to a violation of Section 871, strictly speaking. As troubling as such a statement could be, obviously warranting further inquiry, by itself it is not necessarily a threat within the meaning of the statute.
The court accepted Mrs. Guerrero's guilty plea because, as defense counsel indicated, a reasonable jury could find that Mrs. Guerrero's statements to the Secret Service agents on April 25th were "true threats." That is, a reasonable person in Mrs. Guerrero's position should have understood that the statements would be interpreted by listeners as threats rather than as offensive jokes, political hyperbole, or idle chatter. The court's later review of the more complete record, including the probable cause affidavit and mental health records submitted for sentencing, shows that a reasonable jury also could find that Mrs. Guerrero made threats against the President in statements to therapists after her return from Washington and before the Secret Service interview.
IV. Sentencing Guideline Calculations
The parties and the court have agreed that correct and strict application of the Sentencing Guidelines produces the following calculations. First, the base offense level for Mrs. Guerrero's violation of Section 871 is 12, pursuant to USSG § 2A6.1(a)(1), which applies generally to threatening or harassing communications. Second, six levels are added pursuant to USSG § 2A6.1(b)(1) because the offense involved "any conduct evidencing an intent to carry out such threat." The relevant conduct evidencing such intent in this case was Mrs. Guerrero's earlier bus trip to Washington, D.C. on April 2-4, 2003 with a knife in her purse. (Although that trip was not itself the offense of conviction, it qualifies as relevant conduct because it was "substantially and directly connected to the offense," when the facts of the case are taken as a whole. See USSG § 2A6.1, App. Note 1.) Third, three levels are added pursuant to USSG § 3A1.2 because the threat was directed against a public official. The adjusted offense level is 21, from which the court subtracts three levels for Mrs. Guerrero's acceptance of responsibility pursuant to USSG § 3E1.1(a) and (b). The total offense level is 18.
The parties also agree that Mrs. Guerrero falls within criminal history category III. Mrs. Guerrero has one prior criminal conviction, for the December 2001 auto theft. She pled guilty to that offense and was sentenced to 18 months in the Indiana Department of Correction, though all but 60 days were suspended. The effective sentence of 60 days means that the offense is scored as two criminal history points pursuant to USSG § 4A1.1(b). Also, at the time of the offense in this case, Mrs. Guerrero was still on probation for the auto theft, so two more points are added pursuant to USSG § 4A1.1 (d). Finally, one more point is added pursuant to USSG § 4A1.1(e) because this offense was committed less than two years after her release from custody. The five points establish a criminal history category of III.
Under the Sentencing Guidelines for offense level 18 and criminal history category III, the guideline sentence for Mrs. Guerrero is a range of 33 to 41 months in a federal prison.
V. The Appropriate Sentence in This Case
Congress has established the overriding purposes of sentencing. Section 3553(a)(2) of Title 18 sets forth the purposes:
(A) to reflect the seriousness of the offense, 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. . . .
In trying to accomplish these purposes, the court must consider the nature and circumstances of the offense and the history and characteristics of the defendant, 18 U.S.C. § 3553(a)(1), as well as other factors, including the kinds of sentences available and the sentencing guidelines, 18 U.S.C. § 3553(a)(3) — (5).
A sentence in the applicable guideline range is presumptively an appropriate sentence in a federal criminal case. An essential feature of the Sentencing Reform Act of 1984 and the guidelines themselves, however, is the ability of the sentencing court to "depart" from the guideline sentence. The court may impose a sentence either more severe or less severe 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 from that described [in the guidelines]." 18 U.S.C. § 3553(b)(1) (2003); accord, Koon v. United States, 518 U.S. 81, 92 (1996).
In this case, three mitigating circumstances are present to an unusual degree and warrant a substantial downward departure from the guideline sentence. The result is a sentence, to accomplish the purposes of § 3553(a)(2), of five years probation with six months home confinement, with added conditions intended to ensure that Mrs. Guerrero follows her medication regimen and her course of therapy. This sentence will most effectively protect the public from further crimes by this defendant and provide her with needed rehabilitative and preventive treatment. It will also reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, and deter other crimes by others. The grounds for downward departure are: (a) an over-representative criminal history, see USSG § 4A1.3; (b) the defendant's significantly reduced mental capacity, USSG § 5K2.13; and (c) the circumstances of this offense, which occurred in the context of mental health therapy and an interview with Secret Service agents. That context takes this case outside the "heartland" of offense conduct considered by the Sentencing Commission. See USSG § 5K2.0.
A. Criminal History
In Section 4A1.3, the sentencing guidelines recognize that the numerical weights attached to prior criminal convictions and related circumstances can often be arbitrary, so that a departure may be appropriate either upward, if the calculated criminal history under-represents the seriousness of the record or the defendant's danger to the public, or downward, if the calculated category "significantly over-represents the seriousness of a defendant's criminal history or the likelihood that the defendant will commit other crimes." By way of example, a prior sentence of 20 years in prison for an intentional homicide, and a sentence of 14 months in prison for embezzlement are both given identical scores of three criminal history points under USSG § 4A1.1(a).
Illustrating the sometimes arbitrary character of criminal history calculations, on the day after Mrs. Guerrero pled guilty, this court sentenced an armed bank robber. That 24 year old defendant had been a member of the Gangster Disciples for many years. He had prior adult convictions for aggravated battery (for shooting a man twice while robbing him in a drug deal) and for possession of marijuana. He had juvenile convictions for robbery, auto theft, and shoplifting. As an adult inmate, he had conduct violations in jail for battery, assault, theft, and possession of drug paraphernalia. Under strict application of the sentencing guidelines, however, that defendant also fell within criminal history category III, just as Mrs. Guerrero does. In the bank robbery case, the court departed upward from the guideline sentence because the criminal history category under-represented the seriousness of the defendant's record and the likelihood of further crimes.
In this case, all five of Mrs. Guerrero's criminal history points stem from one conviction, the impulsive and utterly irrational theft of a marked police car, which she promptly drove to her sister's nearby home. Because her sentence was 60 days in jail rather than 59 days, the conviction itself generated a score of two points rather than one. See USSG 4A1.1(b) (c). The additional three points in her criminal history are based on the fact that she committed the crime in this case less than two years after her release from the 60-day jail sentence and while she was still on probation for the auto theft.
The court finds that criminal history category III significantly overstates the seriousness of Mrs. Guerrero's criminal history and the likelihood that she will commit further crimes. If hers were a record of deliberate malice and disregard for the property rights of others, this would be a different case. Instead, the whole record of mental health treatment shows that Mrs. Guerrero has had trouble controlling impulses, but that regular medication and treatment can effectively control her impulsive behavior. The record of her pretrial release and supervision by the United States Probation Office is especially encouraging. During this period she has been compliant with medication, counseling, and other conditions.
The government suggested at the sentencing hearing that a downward departure from criminal history category III to category II is appropriate in this case. Looking at this factor in isolation, the court agrees with that evaluation. Mrs. Guerrero has some other arrests for antisocial behavior that did not result in criminal convictions. Treating her as if she were in criminal history category I would be too great a departure in this case.
B. Diminished Mental Capacity
The sentencing guidelines teach that mental and emotional conditions are "not ordinarily relevant" in determining whether a departure is appropriate, except as provided in Chapter 5, Part K, Subpart 2 of the guidelines, which deals with other grounds for departure. See USSG § 5H1.3. The guidelines thus recognize that a defendant's diminished mental capacity may warrant a downward departure in some cases. Section 5K2.13 is the policy statement on the topic.
Justice Breyer's influential opinion in United States v. Rivera, 994 F.2d 942, 948 (1st Cir. 1993), explained that diminished capacity under USSG § 5K2.13 is an "encouraged" ground for departure. See also Koon v. United States, 518 U.S. 81, 95-96 (1996) (agreeing with Rivera categorization of grounds for departure).
As amended by the Sentencing Commission on October 21, 2003, pursuant to Section 401(m) of the PROTECT Act, the policy statement in USSG § 5K2.13 now reads:
A sentence below the applicable guideline range may be warranted if (1) the defendant committed the offense while suffering from a significantly reduced mental capacity; and (2) the significantly reduced mental capacity contributed substantially to the commission of the offense. Similarly, if a departure is warranted under this policy statement, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense.
However, the court may not depart below the applicable guideline range if (1) the significantly reduced mental capacity was caused by the voluntary use of drugs or other intoxicants; (2) the facts and circumstances of the defendant's offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence; (3) the defendant's criminal history indicates a need to incarcerate the defendant to protect the public; or (4) the defendant has been convicted of an offense under chapter 71, 109A, 110, or 117, of title 18, United States Code.
After reviewing Mrs. Guerrero's mental health records, the government agreed at the October 21, 2003 hearing that the first two criteria are satisfied. Mrs. Guerrero committed the offense in this case while suffering from a significantly reduced mental capacity. Also, her significantly reduced mental capacity contributed substantially to the commission of the offense. The court has summarized the extensive mental health records for Mrs. Guerrero. They show a long history of major depression, borderline personality disorder, and difficulty with impulse control. Those impairments have been the focus of extensive treatment in the form of medication and therapy through counseling and related techniques. The court agrees that the first two criteria are satisfied.
The government has argued that a downward departure under USSG § 5K2.13 would not be appropriate because the offense involved a serious threat of violence. The court disagrees and finds that this offense conduct did not pose or involve a "serious" threat of actual violence. To be serious, the threat must have presented some real risk that Mrs. Guerrero would have attempted to follow through on her stated purpose.
Mrs. Guerrero's trip to Washington, taken on an impulse, did not present a serious threat of violence. When she arrived in Washington, she changed her mind because it would be a "long" walk (a little over two miles) from the bus station to the White House. This is not the behavior of a person seriously committed to achieving her stated goal.
As explained above, the actual offense in this case occurred in the interview with the Secret Service agents and therapists on April 25, 2003 at Reid Hospital, as well as in some other counseling sessions with therapists in the preceding days. A threat to the distant President uttered in those contexts — therapy sessions with therapists who have urged the patient to verbalize her thoughts (however inappropriate they might be) and an interview with law enforcement prompted by a therapist's call — does not pose a "serious" threat of actual violence within the meaning of USSG § 5K2.13.
As noted above, the parties and the court agree that Mrs. Guerrero's offense level should be increased from 12 to 18 because her offense involved "any conduct evidencing an intent to carry out" the threat. See USSG § 2A6.1(b)(1). That all-or-nothing six-point increase does not require a "serious threat" of violence. It requires only the much lower threshold of "any conduct evidencing an intent." The parties and the court agreed that the trip to Washington satisfied that low standard as written in the guidelines.
Accordingly, the court finds that the defendant committed the offense while suffering from a significantly reduced mental capacity, that her significantly reduced mental capacity contributed substantially to the commission of the offense, and that a downward departure is appropriate under USSG § 5K2.13.
C. Mental Health Therapy and Facts Outside the "Heartland"
The guidelines recognize that a defendant's conduct may violate the law yet fall outside the "heartland" of crimes that the Sentencing Commission considered when developing the guidelines. The Supreme Court has emphasized this important concept in sentencing, relying on the Sentencing Commission's introductory explanation of the guidelines:
The Commission intends the sentencing courts to treat each guideline as carving out a "heartland," a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.Koon v. United States, 518 U.S. 81, 93 (1996), quoting 1995 USSG ch. 1, pt. A, intro. comment 4(b). Also, as explained by Justice Breyer, who drafted the original guidelines, "the Commission itself has explicitly said that (with a few exceptions) it did not `adequately' take unusual cases `into consideration.'" United States v. Rivera, 994 F.2d 942, 947 (1st Cir. 1993) (Breyer, C.J.), citing the same comment 4(b).
Although the PROTECT Act enacted in 2003 instructed courts of appeals to apply a standard of review more stringent than Koon taught, Koon remains good law in other respects, including grounds for departure apart from cases involving sex offenses and crimes against children.
For cases like this one, governed by USSG § 2A6.1 (threatening or harassing communications), the Sentencing Commission has actually encouraged departures. Application Note 3 includes this unusual statement: "The Commission recognizes that offenses covered by this guideline may include a particularly wide range of conduct and that it is not possible to include all of the potentially relevant circumstances in the offense level. Factors not incorporated in the guideline may be considered by the court in determining whether a departure from the guidelines is warranted." The Note goes on to say: "These statutes cover a wide range of conduct, the seriousness of which depends upon the defendant's intent and the likelihood that the defendant would carry out the threat. The specific offense characteristics are intended to distinguish such cases." Thus, with this encouragement from the Sentencing Commission itself, in cases governed by USSG § 2A6.1 courts need to be receptive to the possibility of a departure up or down based on conduct more or less severe than the offense heartland.
This case is highly unusual. Strictly speaking, the offense of conviction occurred in conversations that Mrs. Guerrero had with her therapists and when Mrs. Guerrero was interviewed by two Secret Service agents when her therapists were present. Reid Hospital records show that after her return from Washington, Mrs. Guerrero in her therapy "continue[d] to state she wants to kill the President and that he deserves to die since he is killing people." Ex. 23.
There are two relatively specific accounts of the Secret Service interview in the court's record: Agent Lehman's probable cause affidavit and a contemporary report in the Reid Hospital Clinical Data Flow Sheet in Exhibit 23. Agent Lehman stated in his affidavit:
[Guerrero] advised that she doesn't like President Bush because he is killing our own people. She stated that she took a knife in her purse on her Greyhound bus trip to Washington, D.C. with intentions to kill the President at the White House because she is the "Judge, Jury, and Executioner". She claimed that she returned to Indiana after deciding that the time was not right to kill the President and that it was too far to walk to the White House from the bus station. She further stated that she is still thinking about returning to Washington, D.C. to carry out her plan and that she may attempt to acquire a gun this time. She added that the legal purchase of a gun would be difficult due to her status as a felon but that there are other ways to get it done.
The Reid Hospital report indicates that two staff members were also present for the interview by the Secret Service agents. The hospital report shows:
Doug Lehman and Nick Harnice from United States Secret Service Indianapolis Field Office interview pt. re: threats she made to kill the president. Pt. stated "If I could kill the President I would." She stated she could not promise that she would [not?] attempt to go to Washington or attempt to kill him if given the opportunity. She states she has thought about using a gun but doesn't think she could get one due to her [history] of felony arrest. Pt. is currently on probation for felony car theft. Pt. stated she "wished she could get away with it" and when questioned about if it would be worth going to jail for she stated "I don't care". Pt. stated she wanted "to join a radical group. Nothing racial, just anti-government." Pt. given her purse to look for the bus ticket she had purchased to go to Washington. When Mr. Lehman stated he wanted to keep it as evidence she ripped it up and then laid it on the table. This writer gave Mr. Lehman pieces of bus ticket. Bus ticket was dated for April 3, 2003. Mr. Lehman took Polaroid pictures of pt. and pt. signed a "consent to review medical/psychiatric files" so Mr. Lehman and Mr. Harnice can have access to her medical records. Pt. became agitated at times and refused to provide some information but was generally cooperative. Mr. Lehman states he will present information to the United States Attorney and they will decide whether or not to press charges. If pt is charged and convicted she could serve five years in federal prison.
Ex. 23.
The crime in this case falls well outside the heartland of the offense of threatening the President. Mrs. Guerrero did not express any threat with any intent of influencing any other person's behavior. As noted, Mrs. Guerrero has had a long history of difficulty in controlling antisocial and self-destructive impulses. Just a few weeks before her trip to Washington, her therapist praised her for "using words instead of impulsive behaviors," and repeated this praise in several ways. Ex. 19. She and her therapist talked about possible approaches, including "continued training and support by the staff for her using words instead of impulsive and self destructive gestures." Id. Most important, when Mrs. Guerrero communicated threats, first in talks with her therapists and then in the interview with Secret Service agents (where therapists were also present), she was doing exactly what her therapists had told her to do — talk impulsively rather than act impulsively. The parties and the court have agreed that some of her talk amounted to a federal crime, but it is far outside the types of threats that are the heartland of conduct considered by the Sentencing Commission in establishing the guideline sentence.
With respect to the factors identified in Application Note 3, the defendant's intent in making threats does not show a substantial danger, nor was there a substantial likelihood that she would try to carry out the threats. On her troubling and disturbed trip to Washington, she was put off by the prospect of a two-mile walk to the White House. Under the circumstances presented here, the all-or-nothing six-level enhancement under USSG § 2A6.1 (b)(1) for "any conduct evidencing an intent to carry out such threat" tends to exaggerate the seriousness of the threat. After she returned — and sought out further therapy for herself — there is no indication of any further conduct indicating an intent to carry out a threat.
Mrs. Guerrero violated Section 871 when she told her therapists and the Secret Service agents that she still wanted to kill the President and that she might try to do so. In other words, the crime in this case was committed when Mrs. Guerrero followed the advice of her therapists and articulated her dark thoughts to those therapists as a means of controlling those thoughts and controlling her behavior. This is not a case where the defendant mailed a threat to the White House or published a threat in some public setting or even a casual private setting. The threats were made here only in communications directly with mental health therapists or in their presence. This unusual situation takes the case well outside the heartland of offenses under 18 U.S.C. § 871 and justifies a downward departure.
No issue has been raised in this case concerning possible application of the patient-psychotherapist evidentiary privilege recognized in Jaffee v. Redmond, 518 U.S. 1 (1996). Cf. United States v. Glass, 133 F.3d 1356, 1360 (10th Cir. 1998) (vacating guilty plea and remanding for evidentiary hearing on applicability of privilege to threat against President uttered only during psychotherapy session). The recognition of the privilege highlights the unusual character of the facts of this case, however.
In addition, the situation here is similar to the voluntary disclosure of an offense as described in USSG § 5K2.16. That policy statement reads as follows:
If the defendant voluntarily discloses to authorities the existence of, and accepts responsibility for, the offense prior to the discovery of such offense, and if such offense was unlikely to have been discovered otherwise, a departure below the applicable guideline range for that offense may be warranted. For example, a downward departure under this section might be considered where a defendant, motivated by remorse, discloses an offense that otherwise would have remained undiscovered. This provision does not apply where the motivating factor is the defendant's knowledge that discovery of the offense is likely or imminent, or where the defendant's disclosure occurs in connection with the investigation or prosecution of the defendant for related conduct.
This case does not fit the express terms of Section 5K2.16 because Mrs. Guerrero did not violate Section 871 by traveling to Washington for an unexpressed purpose of harming the President. Her voluntary disclosure of that trip therefore did not amount to disclosure of an offense, though the action is obviously closely related to the offense of conviction and serves as the basis for the six-level increase in the offense level under USSG § 2A6.1(b)(1). Nor did she violate Section 871 by telling her therapist that she had traveled to Washington for the purpose of harming the President but that she had then changed her mind. Although this case does not fit Section 5K2.16, the similarities highlight how unusual this case is.
D. The Extent of the Downward Departure
After carefully considering the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2), as well as the nature and circumstances of the offense, the background and characteristics of the defendant, and the relevant provisions of the sentencing guidelines, the court finds that the downward departure in this case should be to the guideline range for offense level 9, criminal history category II, which is a sentence of six to twelve months in prison in Zone B of the guidelines. Within Zone B, the court may and does impose a sentence of probation for five years with a condition of home confinement for six months, with electronic monitoring. In addition, the court may and does impose conditions of probation intended to ensure that Mrs. Guerrero follows her medication regimen and her course of therapy, which has been successful in recent months. The court may and does also continue the separation from her husband, whose influence so often disrupted her therapy in the past.
This sentence is consistent with USSG § 5K2.13, which instructs that "if a departure is warranted under this policy statement, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense." The evidence of Mrs. Guerrero's extensive history of mental illness shows that her reduced mental capacity made the dominant contribution to the commission of the offense. When she is on proper medication and under treatment, without interference from her husband, she can restrain her impulsive thoughts. Also, although she has been a victim of violence in the past, her lengthy mental health and other records show no prior history of any violent acts by her. A downward departure to Zone B reflects this situation.
When determining the extent of a departure, the court should consider the practical effects of departures of different degrees and whether they will accomplish the intended purposes. Such consideration is needed to comply with 18 U.S.C. § 3553(a) on the factors that must be considered in sentencing. Accord, United States v. Wright, 218 F.3d 812, 815 (7th Cir. 2000) (reversing modest downward departure based on extraordinary family situation; downward departure for extraordinary family circumstances could not be justified when, even after modest reduction, the sentence was so long that release would come too late to promote the child's welfare).
The court, like anyone familiar with tragedy and near-tragedy in American history, must be gravely concerned about a mentally ill person who voices threats against the President. After considering all the available alternatives, the court finds that this sentence will best serve the purposes of sentencing set forth by Congress in 18 U.S.C. § 3553(a)(2), including protection of the public and the President.
First, a sentence of probation, home confinement, and continued medication and therapy is best calculated to keep control of Mrs. Guerrero's conduct and thus to protect the public from further crimes by her. A sentence of incarceration in a federal prison would disrupt a course of therapy that now appears to have taken a successful hold for Mrs. Guerrero. A federal prison could administer medication to her, of course, but her therapy involves more than just medication. It also includes therapy with counselors she has known and worked with over several years, and it is therapy that has been working well for the past several months. If the court is wrong — if tight supervision on these conditions of probation is not sufficient and she violates the conditions — the court will have the option of revoking probation and sending her to prison.
Second, for essentially the same reasons, this sentence is best calculated to ensure that Mrs. Guerrero receives the correctional treatment she needs. That is the treatment that appears likely to provide the best protection to the public in the long run, better even than the statutory maximum of five years in prison followed by supervised release with conditions for mental health treatment and medication.
Third, this sentence also provides for just punishment for the offense, reflects the seriousness of the offense, and should promote respect for the law. Mrs. Guerrero will be punished for her crime — she will be subject to the constraints of the criminal justice system. She will not be free to travel or to move about as she wishes for a period of six months, and she will be required to comply with a number of other requirements of probation for five years. In addition, the court must keep in mind that Mrs. Guerrero has already spent approximately three months in Bureau of Prisons custody in this case, when she was in its custody for purposes of the evaluation of mental competence.
The sentence will also be sufficient to reflect the seriousness of the offense as Mrs. Guerrero committed it, which lies outside the heartland of the offense for guideline purposes. The sentence should also promote respect for the law by tailoring the sentence to the crime and to the individual defendant, without applying an unduly harsh sentence that would be less likely to protect the public in the long run.
Finally, the sentence should be consistent with the goal of deterring crime. To the extent that anyone who learns of this case might undertake a rational calculation of risks and deterrence in deciding whether to commit a similar or related crime, it should be evident that this case is highly unusual, and that a person who is able to undertake such a rational calculation would not qualify for the downward departure applied in this case.
Accordingly, the court has orally imposed today a sentence of five years probation with a condition of six months home confinement. In addition to the standard conditions of probation, the court has imposed conditions for mental health treatment, substance abuse testing and/or treatment, and financial disclosure and restrictions on credit. The court has not ordered a fine because of the defendant's limited financial resources and inability to pay in the future.