United States v. Gorsuch

United States Court of Appeals
For the First Circuit

No. 03-2337

UNITED STATES OF AMERICA,

Appellant,

v.

MARY REGINA ELIZABETH GORSUCH,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Selya, Circuit Judge,

John R. Gibson,* Senior Circuit Judge,

and Howard, Circuit Judge.

Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellant.
Gregg D. Bernstein with whom Lipman, Katz & McKee, P.A. was on
brief, for appellee.

AMENDED OPINION

April 19, 2005

*
Of the Eighth Circuit, sitting by designation.
 HOWARD, Circuit Judge. This is an opinion on a petition

for rehearing. In light of the Supreme Court's decision in United

States v. Booker, 125 S. Ct. 738 (2005), we grant the petition for

panel rehearing, withdraw our earlier opinion, United States v.

Gorsuch, 375 F.3d 114 (1st Cir. 2004), and substitute this opinion

for it. On May 6, 2002, Mary Gorsuch entered a branch of the Fleet

Bank in Bangor, Maine; brandished an unloaded semiautomatic

handgun; robbed three teller stations of a total of $8,304; and

walked out the door. Within minutes, a Bangor police officer

arrested the dazed Gorsuch near the bank. Subsequently, a grand

jury indicted Gorsuch on one count of armed bank robbery, see 18

U.S.C. §§ 2113(a) and (d), and one count of brandishing a firearm

in relation to a crime of violence, see 18 U.S.C. § 924(c)(1)(A)(ii).

Gorsuch, who more than once has been involuntarily

admitted to a mental health facility and bears a diagnosis of

paranoid schizophrenia, entered a plea of not guilty by reason of

insanity. The case proceeded to trial, the bulk of which involved

mental health professionals testifying to the nature and severity

of Gorsuch's illness. At the conclusion of two days of testimony,

the jury rejected Gorsuch's insanity defense within approximately

two hours and convicted her on both counts of the indictment.

The probation department thereafter prepared a

presentence investigation report (PSI Report) that applied the 2002

sentencing guidelines and concluded that Gorsuch's total offense

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level on count one should be 22 (yielding a guidelines sentencing

range of 41 to 51 months because Gorsuch had no criminal history)

and that Gorsuch was subject to a statutorily mandated seven-year

consecutive term on count two. The PSI Report took the position

that Gorsuch was not entitled to an acceptance of responsibility

adjustment under USSG §3E1.1 because she had put the government to

the burden of proceeding to trial. The PSI Report identified no

grounds for a downward departure.

Gorsuch objected to the PSI Report, arguing (i) that she

was entitled to an acceptance of responsibility adjustment because

she had never disputed the historical facts alleged by the

government, and (ii) that she was entitled to a downward departure

on the ground of diminished mental capacity under the policy

statement regarding such departures, namely, USSG §5K2.13. The

probation department disagreed with Gorsuch's professed entitlement

to an acceptance of responsibility reduction because Gorsuch had

disputed her factual guilt and thus was not one of the rare

defendants who, despite going to trial, might be eligible for the

adjustment. See id. §3E1.1, cmt. n. 2 ("In rare situations a

defendant may clearly demonstrate an acceptance of responsibility

for his criminal conduct even though he exercises his

constitutional right to a trial. This may occur, for example,

where a defendant goes to trial to assert and preserve issues that

do not relate to factual guilt (e.g., to make a constitutional

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challenge to a statute or a challenge to the applicability of a

statute to his conduct)."). The probation department also

responded that a diminished capacity departure was unwarranted

because USSG §5K2.13(2) disallows such departures where, inter

alia, "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."

At sentencing, the district court sided with Gorsuch on

both issues. As to count one, the court concluded that Gorsuch's

total offense level should be 19 (and not 22, as recommended by the

probation department) because Gorsuch had accepted responsibility

for her offense, see USSG §3E1.1(a) (directing sentencing courts to

decrease the offense level by two levels for such defendants), and

because Gorsuch was eligible for the additional one-level decrease

described in USSG §3E1.1(b) (permitting certain defendants to

obtain an additional reduction of one level if they timely provide

complete information to the government concerning their involvement

in the offense or timely notify the government of their intention

to plead guilty). The court then sentenced Gorsuch to 30 months'

imprisonment on count cne (the low end of the guideline sentencing

range for a defendant with a total offense level of 19 who lacks a

criminal history).

As to count two, the court concluded that a diminished

capacity downward departure was warranted. It reasoned that

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although Gorsuch had committed a crime involving a serious threat

of violence, she would not be a threat to the public if she took

her medication. The court then departed downward from the 84-month

consecutive sentence recommended in the PSI Report and imposed a

12-month consecutive sentence on count two. Although the

government opposed this downward departure, it did not alert the

court to the fact that the seven-year consecutive sentence

recommended in the PSI Report was statutorily required and

therefore mandatory (at least where, as here, the government had

not filed a motion for a downward departure premised on the

defendant's substantial assistance). See, e.g., United States v.

Burke, 237 F.3d 741, 742-45 (6th Cir. 2001); see also USSG §5G1.1.

The government appeals. It challenges each of these

sentencing determinations. For the reasons discussed below, we

agree that the district court erred in its application of the

sentencing guidelines with respect to count one and therefore

vacate the sentence on count one. As to count two, we decline to

recognize the government's forfeited claim that the district court

erred in sentencing below the statutory minimum. Nevertheless, we

vacate the sentence on that count as well. We remand the case as

a whole for resentencing under the criteria set forth in Booker,

125 S. Ct. 738. On remand, the district court must consider the

sentencing guidelines — but only on an advisory basis — and also

must consider the other statutory factors set forth in 18 U.S.C. §

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3553 (a), see Booker, 125 S. Ct. at 764-65, under which Gorsuch's

serious mental illness, maternal responsibilities, and lack of a

criminal record may be more relevant than under the pre-Booker

regime of mandatory guidelines. On any further appeal, we will

review the sentence imposed only for reasonableness. Id. at 765-

66.

The government advances several legal and record-based

arguments in support of its assertion that the district court erred

in reducing Gorsuch's sentence on count one for acceptance of

responsibility, including an argument that binding circuit

precedent precludes a decrease where the defendant goes to trial to

assert a recognized defense to criminal charges but fails to

persuade the jury. See United States v. Chhien, 266 F.3d 1, 11

(1st Cir. 2001) (explaining that newly constituted panels must

adhere to prior panel decisions). We think that this argument is

correct. In United States v. Bello, 194 F.3d 18 (1st Cir. 1999),

a panel of this court upheld a district court's refusal to grant an

acceptance of responsibility adjustment to a defendant who did not

contest that he had engaged in the conduct alleged to be the actus

reus but (unsuccessfully) denied criminal responsibility on the

ground of self-defense. See id. at 20-22, 28. We did so, in part,

because the adjustment is available only to defendants who go to

trial "'to assert and preserve issues that do not relate to factual

guilt,'" id. at 28 (quoting USSG §3E1.1, cmt. n. 2) (emphasis in

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original), and because "[a]n assertion of self-defense is a denial

of an essential factual element of guilt for the purposes of this

guideline section," id. Like the defendant in Bello, who denied

the government's allegation that he had acted without legal

justification, Gorsuch denied an essential factual element of guilt

when she asserted at trial that she lacked the capacity to form the

mens rea (and thus lacked the mens rea) necessary for the

imposition of criminal responsibility. We thus do not see how the

Bello rule and the acceptance of responsibility adjustment made to

Gorsuch's offense level can coherently exist side by side within

this circuit. See also United States v. Crass, 50 F.3d 81, 84 (1st

Cir. 1995) (observing that a criminal defendant "jeopardiz[es]" his

entitlement to an acceptance of responsibility adjustment by

demanding a trial on whether he acted with the requisite criminal

intent).

Gorsuch has no real response to this argument other than

to point out that, in United States v. Ellis, 168 F.3d 558 (1st

Cir. 1999), we referred to United States v. Barris, 46 F.3d 33, 35

(8th Cir. 1995), a case in which the Eighth Circuit stated that an

assertion of an insanity defense at trial is not an automatic bar

to an acceptance of responsibility reduction. See Ellis, 168 F.3d

at 564; see also United States v. Paster, 173 F.3d 206, 221 n. 12

(3d Cir. 1999) (indicating that insanity defense does not preclude

acceptance of responsibility adjustment); United States v. Fells,

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78 F.3d 168, 172 (5th Cir. 1996) (similar). The short answer to

Gorsuch's rejoinder is that the Ellis panel adverted to Barris

merely as an illustration, without in any way endorsing the Eighth

Circuit's holding. In all events, our decision in Ellis predated

the Bello holding; therefore, any attempt to read something

substantive into Ellis's citation to Barris necessarily comes to

naught.

More importantly, neither Barris nor the cases similar to

it explain how a defendant who has contested the government's

allegation that she acted with the requisite mens rea has not at

the same time contested her factual guilt and thereby declined to

accept responsibility for the charged offense. Perhaps the Barris

court was of the opinion that one need only admit the underlying

historical facts — i.e., admit that she engaged in the conduct

constituting the alleged actus reus — in order to be eligible for

the adjustment. But the Bello panel adopted a rule that, in a very

similar context, treats challenges to the government's "mental

state" allegations as challenges to factual guilt. See also United

States v. Mikutowicz, 365 F.3d 65, 75-77 (1st Cir. 2004)

(acceptance of responsibility adjustment not appropriate where

defendant admits to the actus reus but goes to trial to contest the

government's allegation that his conduct was willful). Because

Bello controls, Gorsuch must be resentenced on count one.

The government presents two major arguments in support of

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its assertion that the district court erred in departing downward

on the ground of diminished capacity with respect to count two.

First, it asks us to vacate the court's imposition of a sentence

below the statutory minimum under Fed. R. Crim. P. 52(b). Second,

it argues that a diminished capacity departure is unwarranted on

the facts of this case.

In United States v. Rodriguez, 938 F.2d 319 (1st Cir.

1991), we held that a sentencing court's imposition of a prison

term below the minimum mandated by Congress constitutes "error"

that is "plain" and that "affects substantial rights" within the

meaning of Fed. R. Crim. P. 52(b). See id. at 322. Gorsuch does

not dispute that, under the Rodriguez principle, the government has

established three of the four prerequisites for an exercise of this

court's discretion to correct errors under Rule 52(b). See, e.g.,

United States v. Cotton, 535 U.S. 625, 631 (2002) (detailing the

requirements for error-correction under the Rule); United States v.

Duarte, 246 F.3d 56, 60 (1st Cir. 2001) (similar). But Gorsuch

contends that, because of the sad facts of this case and the

lengthy prison term she would have faced had the district court not

departed downward, the government has not satisfied the fourth

prong: that the error "seriously impair[] the fairness, integrity,

or public reputation of judicial proceedings." Duarte, 246 F.3d at

60. We agree.

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 Ordinarily, we would recognize such an error — but this

is a highly unusual case. The record suggests that Gorsuch is

afflicted by a grave mental illness, except for which she probably

never would have committed the crimes of which she stands

convicted. The record also indicates that Gorsuch had no

premeditated intention of harming anyone on the day in question,

and that she is likely to be a law-abiding citizen if she takes

medication to control her illness. One cannot help but cringe at

the seven-year consecutive prison sentence recommended in the PSI

Report with respect to count two for this troubled mother of three

who otherwise lacks a criminal history. We therefore conclude that

recognizing this forfeited error1 is not necessary to ensure the

integrity and fairness of Gorsuch's sentencing proceeding, and so

we decline to afford such recognition to it.

Whether, even apart from the statutory minimum, a

downward departure was appropriate under the sentencing guidelines

is a closer question. The policy statement on diminished capacity

departures set forth in USSG §5K2.13 prohibits such a departure if,

1
In characterizing the error here as a forfeiture, we reject
Gorsuch's suggestion that the government knowingly waived its right
to insist upon the imposition of statutory minimum mandatory
sentence. See United States v. Olano, 507 U.S. 725, 733 (1993)
(discussing the difference between a "forfeiture," which may be
corrected under Rule 52(b), and a "waiver," which is the
"intentional relinquishment or abandonment of a known legal right"
and which cannot be undone under Rule 52(b)) (citation and internal
quotation marks omitted); United States v. Rodriguez, 311 F.3d 435,
437 (1st Cir. 2002) (similar). The record does not support a
finding of waiver here.

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inter alia, "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 . . . ." Without

explicitly considering any alternative interpretation, a number of

courts have read this guideline to preclude a departure when the

facts and circumstances of the offense per se indicate a need to

protect the public because the offense per se involved actual

violence or a serious threat of violence. See, e.g., United States

v. Sheehan, 371 F.3d 1213, 1216 (10th Cir. 2004); United States v.

Woods, 359 F.3d 1061, 1065 (8th Cir. 2004); United States v. Dela

Cruz, 358 F.3d 623, 625 (9th Cir. 2004); United States v. Cravens,

275 F.3d 637, 641-42 (7th Cir. 2001); United States v. Askari, 159

F.3d 774, 779-80 (3d Cir. 1998). One other court of appeals has

construed the guideline in much the same manner as did the district

court, that is, as precluding a departure only if the facts and

circumstances of the offense involved actual violence or a serious

threat of violence and the sentencing court further and

independently finds, on the basis of evidence other than that

pertaining to the offense itself, that there is an ongoing need to

protect the public. See United States v. Riggs, 370 F.3d 382, 385

(4th Cir. 2004). The district court here explicitly found that

there was no such need so long as Gorsuch continues to take her

medication. Although we tentatively favor the former

interpretation, we need not definitively resolve the question at

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this time because, in the post-Booker world, the sentencing

guidelines are only advisory and the district court may justify a

sentence below the guideline level based upon a broader appraisal.

We therefore believe that the course of prudence is to vacate the

sentence on count two and permit the district court to reconsider

the matter under the Booker format.2

For the reasons set forth above, we vacate Gorsuch's

sentences on both counts and remand with instructions that she be

resentenced consistent with this opinion and with the standards set

forth in Booker (without regard, however, to the statutory minimum

on count two, application of which the government has forfeited).

The mandate shall issue forthwith without prejudice to

any petition for rehearing or rehearing en banc filed in the usual

course.

So ordered.

2
To the extent there may be any question about the
applicability of the Booker regime to the resentencing in this
case, the parties may seek resolution in the district court in the
first instance. Cirilo-Muñoz v. United States, F.3d (1st
Cir. April 15, 2005) (slip op. at 14-15).

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