United States v. Pereira , 272 F.3d 76 ( 2001 )

United States Court of Appeals
For the First Circuit
No. 01-1303
UNITED STATES OF AMERICA,
Plaintiff, Appellant,
v.
JULIO A. PEREIRA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Torruella, Circuit Judge,
Lipez, Circuit Judge,
and Stearns,* District Judge.
Paul G. Levenson, Assistant U.S. Attorney, with whom James B.
Farmer, United States Attorney, were on brief, for appellant.
Kimberly Homan, with whom Sheketoff & Homan, Joseph S. Oteri, and
Oteri, Weinberg & Lawson, were on brief, for appellee.
* Of the District of Massachusetts, sitting by designation.
December 3, 2001
-2-
TORRUELLA, Circuit Judge. Defendant-appellee Julio A.
Pereira ("Pereira") pled guilty to four counts of subscribing false tax
returns and twenty-one counts of using the mails for commercial
bribery. At sentencing, the district court applied the Sentencing
Guidelines and found Pereira's total offense level to be sixteen.
However, citing Pereira's extraordinary responsibilities for the care
of his parents, the court departed downwards to a level ten. The court
sentenced Pereira to three years of probation, with six months' home
confinement. Because we conclude that the district court erred in
granting Pereira a downward departure, we reverse and remand this case
for action consistent with this opinion.
BACKGROUND
In 1992, Pereira worked as a senior mechanical buyer for LTX
Corporation ("LTX"), a manufacturer of computer-testing equipment and
other electronic components. At that time, Henry Mathieu ("Mathieu")
was the owner of Synertron Associates, Inc. ("Synertron"), a company
that sells electro-mechanical components to firms in the computer and
medical industries. Pereira and Mathieu entered into a kickback
arrangement whereby Mathieu paid Pereira a five percent "commission" on
all of Synertron's sales to LTX. By agreement, Mathieu paid Pereira
each month in cash, on the understanding that these payments would not
be reported to tax officials. Between 1992 and 1997, Mathieu's cash
-3-
payments to Pereira totaled approximately $432,000. The tax loss
attributable to Pereira's unreported income was $106,487.
On March 30, 2000, the Grand Jury for the District of
Massachusetts indicted Pereira on four counts of subscribing false tax
returns in violation of 26 U.S.C. § 7206(1), and twenty-one counts of
using the mails for commercial bribery in violation of 18 U.S.C. §
1952. On October 30, 2000, Pereira, pursuant to a plea agreement, pled
guilty to all counts of the indictment.
The plea agreement set Pereira's total offense level under
the Sentencing Guidelines at sixteen - thereby resulting in a guideline
sentencing range ("GSR") of twenty-one to twenty-seven months'
imprisonment. However, the agreement permitted Pereira to move for a
downward departure.
Prior to sentencing, Pereira filed a sentencing memorandum
seeking a downward departure. Pereira claimed, inter alia, that his
obligation to care for his elderly and ill parents was an exceptional
family circumstance warranting a downward departure. Pereira estimated
that he spent approximately twenty hours per week tending to his
parents' needs, including preparing their meals, cleaning their house,
doing their laundry, making appointments with their physicians,
administering their medications, helping them with their daily
activities, shopping for their food and other necessities, taking care
of their finances, and driving them to appointments and community
-4-
activities. Furthermore, since Pereira's parents do not speak English,
he also served as an interpreter for them.
In addition to the sentencing memorandum, Pereira submitted
several letters to the district court from family members and friends.
Pereira's wife wrote a letter describing Pereira's responsibilities to
his parents and the likely consequences that his incarceration would
have on the family:
We live the closest of the three children to his
parent[s'] home, which makes it much easier [for
us] to care for them . . . . If [Pereira] were
to be incarcerated his parents would need to move
in with one of his two siblings versus a
retirement home.
(Appellant's Brief app. at 35.) Pereira's sister also reported that
she was "unable to assist [her] parents to the extent that [Pereira
could]." Id. at 38. She concluded that without Pereira their parents
"would certainly be dependent upon an assisted living facility or a
home nursing arrangement." Id.At the sentencing hearing, witnesses testified in detail
about the extensive care that Pereira provided his parents. Dennis
Rodríguez, a longtime family friend, testified:
[Pereira] is the one that takes care of the
parents . . . . Or, if he can't take care of
something, he'll call me, Dennis, can you help me
out with my parents . . . . The mother had
strokes recently. [Pereira] would be, you know,
the one to go over there and get her to the
hospital. And, obviously, the other siblings
-5-
would join, but him being so close, he would be
the one.
(Tr. Sentencing Proceedings at 21-22.) On cross-examination, Rodríguez
also reported that both Pereira's brother and sister worked in the
immediate vicinity of the parents' home.
At the conclusion of the hearing, the district court found
that Pereira's total offense level was sixteen but, over the
government's objection, departed downward to a level ten. According to
the court, the departure was warranted because of Pereira's
extraordinary family obligations, and in light of the fact that (1)
none of his siblings could "step up to the plate" and provide similar
services; and (2) the family could not afford external care for the
parents. The court then sentenced Pereira to three years of probation,
with six months of home detention.
The court specified that Pereira would be confined to his
home only during the weekends, leaving him free to work and to care for
his parents' needs during the week. On weekends, the court noted,
Pereira's parents "would have to rely on others for assistance." Id.
at 37.
STANDARD OF REVIEW
We review district court departures under the Sentencing
Guidelines for abuse of discretion. Koon v. United States, 518 U.S.
81, 96-100 (1996). This analysis has three parts. "First, we
-6-
determine as a theoretical matter whether the stated ground for
departure is permissible under the guidelines. If the ground is
theoretically appropriate, we next examine whether it finds adequate
factual support in the record. If so, we must probe the degree of the
departure in order to verify its reasonableness."1 United States v.
Dethlefs, 123 F.3d 39, 43-44 (1st Cir. 1997) (citations omitted). In
employing this analysis, we recognize that "[a] district court's
decision to depart from the Guidelines . . . will in most cases be due
substantial deference." Koon, 518 U.S. at 98.
DISCUSSION
The United States Sentencing Guidelines establish ranges for
the criminal sentences of federal offenders. District courts must
impose sentences within the applicable ranges set forth within the
Guidelines. See 18 U.S.C. § 3553(a). However, a district court may
depart from the applicable Guideline range 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 . . . ." Id. § 3553(b).
Thus, not every aggravating or mitigating circumstance will warrant
departure; the circumstance "must render the case atypical and take it
out of the 'heartland' for which the applicable guideline was
1 Because the government challenges the appropriateness rather than the
degree of the district court's departure, our analysis does not include
the third inquiry.
-7-
designed." United States v. Carrión-Cruz, 92 F.3d 5, 6 (1st Cir.
1996).
Sentencing courts are given considerable guidance as to the
factors that are likely or not likely to make a case atypical.
Encouraged factors are those "the [Sentencing] Commission has not been
able to take into account fully in formulating the guidelines."
U.S.S.G. § 5K2.0. When encouraged factors are present, they may take
a particular case outside the "heartland" of the applicable guideline,
thereby warranting a departure. Conversely, discouraged factors are
those "not ordinarily relevant to the determination of whether a
sentence should be outside the applicable guideline range." U.S.S.G.
ch. 5, pt. H, introductory cmt. The Sentencing Commission does not
view discouraged factors "as necessarily inappropriate bases for
departure but says they should be relied upon only 'in exceptional
cases.'" Id.
In the instant case, the factor upon which the district court
relied in departing downward, family ties and responsibilities, is a
discouraged factor under the Guidelines. U.S.S.G. § 5H1.6. Thus,
departure on that ground is "permissible" under the first prong of our
analysis, Dethlefs, 123 F.3d at 43, only if the circumstances of
Pereira's case are "exceptional." The government claims that the
district court erred as a matter of law in concluding that Pereira's
family responsibilities were so exceptional as to warrant departure.
-8-
It argues that Pereira's circumstances were adequately considered by
the Sentencing Commission, thereby placing his case within the
"heartland" and making the departure impermissible.
Whether a discouraged factor is present in some exceptional
way should be determined, in large part, by "comparison with the facts
of other Guidelines cases." Koon, 518 U.S. at 98. Thus, existing
caselaw defines the parameters for departure, outside of which a court
cannot go without assuming the risk of acting beyond permissible
limits.
Existing caselaw is clear that time-consuming family
responsibilities, by themselves, are not sufficient to take a case out
of the "heartland." In United States v. Carr, 932 F.2d 67 (1st Cir.
1991), this Court vacated a downward departure granted because of the
defendants' obligation to care for their four-year old son. Id. at 68.
We held that a convicted felon's parental responsibility to care for a
child was, by itself, neither atypical nor unusual, even when both
parents faced incarceration. Id. at 72. In concluding that these
circumstances were not extraordinary, we noted that "[the defendant's
mother] would care for the child while his parents were imprisoned."2
Id.2 Though the Carr court employed the now-defunct plenary review
standard to assess the district court's decision, rather than the
current abuse of discretion standard, we still believe that Carr
provides helpful insight in defining those exceptional familial
responsibility cases that fall outside of the "heartland."
-9-
Similarly, in United States v. Rybicki, 96 F.3d 754 (4th Cir.
1996), the district court granted the defendant a five-level downward
departure, in part because of his extraordinary family
responsibilities. Id. at 756. According to the district court, the
departure was warranted, in part, because the defendant had a
neurologically impaired nine-year old son who was in need of special
supervision, and a wife who was experiencing fragile mental health.
Id. at 758. In reversing the departure, the Fourth Circuit held that
the defendant's family responsibilities were not so "exceptional" as to
justify a departure. Id. at 759.
Finally, in United States v. Sweeting, 213 F.3d 95 (3d Cir.
2000), the defendant was a single mother and the sole provider for five
children, one of whom had a substantial neurological impairment. Id.
at 104. The disabled child required special care to ensure that he
exercised regularly, ate well, slept properly, and took his medication
at the appropriate times. Id. at 107. The Third Circuit ruled that
these factors did not make the case extraordinary, especially
considering that "there is nothing in the record to suggest that
[defendant] (and only [defendant]) can provide him with the care and
attention he needs." Id.; see also United States v. Dyce, 91 F.3d
1462, 1467-68 (D.C. Cir. 1996) (holding that the district court erred
when it departed based on defendant's status as a single mother with
three children under the age of four, one of whom was being breast-fed,
-10-
and where incarceration would require placing the children in foster
care); United States v. Rushby, 936 F.2d 41, 42-43 (1st Cir. 1991)
(holding that defendant, who had been married for ten years, was the
main breadwinner for wife and two children, and did chores for wife's
grandmother, did not have unusual family circumstances); United States
v. Goff, 20 F.3d 918, 921 (8th Cir. 1994) (ruling that defendant's
support of three children and a wife with depressive disorder and panic
attacks was an insufficient basis for departure).
Considering the immense hardships that fall within the
"heartland," it is difficult to conclude that Pereira's circumstances
fall outside of it. The extensive care that Pereira provides his
parents is no more, and likely less, time-consuming than the care
required by young children with neurological deficiencies. Unlike
dependent children who require constant care and attention, Pereira's
parents live alone and, minus the twenty hours per week that Pereira
cares for them, independently. Although we do not disparage Pereira's
significant and commendable devotion to his parents, we conclude that
it falls short of what the caselaw has defined as "extraordinary
circumstances."
Moreover, it is the unfortunate norm that innocent family
members suffer considerable hardship when a relative is incarcerated.
As this Court has noted, "[d]isruption of the defendant's life, and the
concomitant difficulties for those who depend on the defendant, are
-11-
inherent in the punishment of incarceration." United States v. Rivera-
Maldonado, 194 F.3d 224, 236 (1st Cir. 1999). This being so, something
more is necessary to elevate Pereira's case - and those of others
similarly situated - out of the "heartland." At the very least, the
caselaw requires a showing that the defendant is irreplaceable before
his circumstances are considered extraordinary. Both Sweeting and
Carr, in addition to a host of other cases, explicitly speak of this
requirement.
In United States v. Archuleta, 128 F.3d 1446 (10th Cir.
1997), the Tenth Circuit vacated a departure based on the defendant's
sole support of two children and an elderly diabetic mother. Though
the court found the defendant's circumstances to be "difficult" and
"sympathy-evoking," it concluded that the defendant's circumstances
were not sufficiently "rare" to warrant departure. Id. at 1450. In
reaching its conclusion, the court noted that the record had failed to
establish (1) that other relatives could not care for the dependent
family members; and (2) that home nursing or other alternative services
were not available. Id.Conversely, courts have affirmed departures where the
evidence established that the care rendered by the defendant was
irreplaceable. In United States v. Haversat, 22 F.3d 790, 797 (8th
Cir. 1994), the Eighth Circuit held that the defendant's care for his
ailing wife justified the district court's departure. The defendant's
-12-
wife suffered severe psychiatric problems, and the defendant was needed
to "identify the beginning of any regressions and to seek out immediate
treatment to avoid 'a serious situation.'" Id. In affirming the
district court's departure, the court relied heavily on the treating
physician's testimony that the defendant's participation in his wife's
care was "irreplaceable." Id.; see also United States v. Sclamo, 997
F.2d 970, 972-74 (1st Cir. 1993) (ruling that defendant's personal
presence was needed to assist in the care of a twelve-year old boy who
suffered from a clinical disorder and whose condition would deteriorate
in the defendant's absence).
In contrast to Haversat, the instant case is replete with
evidence demonstrating alternative sources of care for Pereira's
parents. Therefore, to the extent that the district court's departure
was based on a determination that Pereira's care was irreplaceable,3 we
hold that such a finding does not "find[] adequate support in the
record" under the second prong of our analysis. Dethlefs, 123 F.3d at
43-44. The nature of the care that Pereira renders (shopping,
cleaning, food preparation, etc.) is not so highly specialized as to
make him difficult to replace. Moreover, Dennis Rodríguez testified
that he provided help to Pereira's parents whenever he was called upon.
3 The district court acknowledged the irreplaceability requirement
during the sentencing hearing. The court noted, "[I]f there are other
siblings in the neighborhood who can care for the family, [the downward
departure is] not likely to fly." (Tr. Sentencing Proceedings at 8).
-13-
He also reported that Pereira's siblings, who work in close proximity,
helped out in caring for the defendant's parents. In her letter to the
court, Pereira's wife stated that "[i]f [Pereira] were to be
incarcerated his parents would need to move in with one of his two
siblings." Pereira's sister noted that without the defendant, their
parents "would certainly be dependent upon an assisted living facility
or a home nursing arrangement." Nothing in the record supports the
district court's conclusion that the family could not afford such
external care. With this network of family, friends, and possible
alternative care facilities, it is exceedingly difficult to
characterize Pereira's care as irreplaceable.
In addition, the very sentence imposed by the district court
highlights Pereira's replaceability. The sentence requires the
defendant be confined to his home every weekend, during which time
"[his] parents would have to rely on others for assistance." The court
thus acknowledged, to some degree, that Pereira was able to rely on
others to care for his parents in his absence.
Though it may be that none of Pereira's siblings will be able
to provide the same level of parental care, this fact alone is not
sufficient to deem Pereira irreplaceable. As long as there are
feasible alternatives of care that are relatively comparable to what
the defendant provides, the defendant cannot be irreplaceable. In this
-14-
case, Pereira's siblings and the possibility of home nursing provide
adequate substitutes in Pereira's absence.
In response, Pereira insists that his family obligations are
truly extraordinary, especially in light of how unique they are.
Pereira argues that it is uncommon to find parents who are as elderly
and disabled by serious illness as his are, and even more rare to find
a child like him who has provided a similar degree of care and
assistance to his parents.
We believe that Pereira's argument is flawed because it
erroneously equates uniqueness with extraordinariness. Though
Pereira's circumstances may be unique, this fact alone does not mean
that his family circumstances are necessarily extraordinary. Every
family's circumstances are unique, with idiosyncracies that are
unlikely to be duplicated. Instead, the crucial question is whether
the unique set of facts, taken together, rise to the level of
extraordinariness.
Given the network of friends and family to care for Pereira's
parents in his absence, we find nothing extraordinary or exceptional
about Pereira's family circumstances. Though Pereira's parents will
likely be inconvenienced by their son's incarceration, inconveniences
are part of the disruption inherent in incarceration.
CONCLUSION
-15-
The rule that we establish today, which requires a district
court to find that a defendant is irreplaceable before granting a
downward departure based on family obligations, is nothing more than a
distillation of existing judicial principles. Because Pereira cannot
be properly considered irreplaceable, his circumstances are not so
compelling as to remove him from the Guidelines' "heartland." We thus
conclude that the district court abused its discretion in granting
Pereira a downward departure. We reverse and remand this case for
action consistent with this opinion.
-16-