United States Court of Appeals,
Eleventh Circuit.
No. 95-6120.
UNITED STATES of America, Plaintiff-Appellant,
v.
Sheila Pickett ALLEN, Defendant-Appellee.
July 11, 1996.
Appeal from the United States District Court for the Northern
District of Alabama. (No. CR-94-H-316-S), James Hughes Hancock,
Judge.
Before TJOFLAT, Chief Judge, COX, Circuit Judge, and WELLFORD*,
Senior Circuit Judge.
WELLFORD, Senior Circuit Judge:
While working in the installment loan department at First
Alabama Bank from 1987 to 1992, defendant Sheila Pickett Allen
diverted approximately $138,000 of the bank's money into her own
accounts.1 Allen admits that, when confronted by bank officials,
she initially denied any wrongdoing and later lied about the extent
of her illegal activities. Allen eventually pleaded guilty to one
count of bank fraud in violation of 18 U.S.C. § 1344.
At sentencing, the district court found that the Guidelines
called for a term of imprisonment ranging from twelve to eighteen
months, but decided to depart downward under U.S.S.G. § 5K2.0 on
the basis of Allen's family responsibilities. The Presentence
Report indicates that Allen is the primary caretaker of her
*
Honorable Harry W. Wellford, Senior U.S. Circuit Judge for
the Sixth Circuit Court of Appeals, sitting by designation.
1
A large portion of the embezzled funds came from an account
held by a church.
seventy-year-old father, who suffers from both Alzheimer's and
Parkinson's diseases. Departing five offense levels, the district
court ultimately sentenced Allen to one hour of imprisonment, to be
followed by thirty-six months of supervised release, and declined
to order any restitution or fine. The government's timely appeal
followed.
A court must impose a sentence within the Guidelines range
"unless 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." 18 U.S.C. § 3553(b). The
Sentencing Commission has fully considered family circumstances and
concluded that they will not ordinarily support a downward
departure. See U.S.S.G. § 5H1.6. Thus, district courts may depart
on such grounds only in "extraordinary" cases. United States v.
Mogel, 956 F.2d 1555, 1565 (11th Cir.), cert. denied, 506 U.S. 857,
113 S.Ct. 167, 121 L.Ed.2d 115 (1992); United States v. Cacho, 951
F.2d 308, 311 (11th Cir.1992).
In our view, Allen's family responsibilities, though
difficult, are not extraordinary. See Mogel, 956 F.2d at 1565
(holding downward departure inappropriate where defendant had "two
minor children to support, and a mother that lives with [her]");
Cacho, 951 F.2d at 311 (holding downward departure not warranted
where defendant had four small children); United States v. Brand,
907 F.2d 31, 33 (4th Cir.) (reversing downward departure based on
the fact that defendant was sole custodial parent of two young
children), cert. denied, 498 U.S. 1014, 111 S.Ct. 585, 112 L.Ed.2d
590 (1990); United States v. Brewer, 899 F.2d 503, 508-09 (6th
Cir.) (reversing downward departure based, in part, on the fact
that defendant was mother of small children), cert. denied, 498
U.S. 844, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990); United States v.
Goff, 907 F.2d 1441, 1446 (4th Cir.1990) (finding nothing
extraordinary about defendant with three children under the age of
seven). Although the authority cited involves defendants with
small children, we see no reason to treat a defendant who is the
primary caretaker of an infirmed parent any differently. Thus, we
conclude that Allen " "has shown nothing more than that which
innumerable defendants could no doubt establish: namely, that the
imposition of prison sentences normally disrupts [familial]
relationships.' " Cacho, 951 F.2d at 311 (quoting United States v.
Daly, 883 F.2d 313, 319 (4th Cir.1989), cert. denied, 496 U.S. 927,
110 S.Ct. 2622, 110 L.Ed.2d 643 (1990)); accord United States v.
Shortt, 919 F.2d 1325, 1328 (8th Cir.1990) (stating that family
responsibilities will not ordinarily support a downward departure,
because "[a]ll families suffer when one of their members goes to
prison").2
Relying on United States v. Rivera, 994 F.2d 942, 950 (1st
Cir.1993), Allen argues that we should defer to the district
court's judgment as to whether her family responsibilities are
extraordinary. We disagree. While Rivera admonishes appellate
2
We note that Allen is not the only family member available
to care for her father. The Presentence Report indicates that
Allen's husband and adult son presently take care of her father
to some extent, and that Allen has a brother and another adult
child living nearby.
courts to review departure decisions with due regard for the
district court's "superior feel for the case," it does not require
that lower courts be given free reign to decide the propriety of
departing in given cases; such unfettered discretion would lead to
return of the sentencing disparity that prompted Congress to adopt
the Guidelines in the first place.
Allen also cites United States v. Haversat, 22 F.3d 790 (8th
Cir.1994), in support of her argument. In that case, the
five-level downward departure was held to be unreasonable and some
period of confinement was required. (The court noted also the
district court's disdain for the guidelines.) See Williams v.
United States, 503 U.S. 193, 112 S.Ct. 1112, 117 L.Ed.2d 341
(1992).
For the reasons stated above, we VACATE the district court's
sentencing judgment and REMAND this case for resentencing in
accordance with this opinion.