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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