United States v. Damon Rae Prestemon , 929 F.2d 1275 ( 1991 )

McMILLIAN, Circuit Judge.

The United States appeals from a final judgment entered in the District Court for the District of Minnesota finding Damon Rae Prestemon guilty, pursuant to a plea agreement, of armed bank robbery in violation of 18 U.S.C. § 2113(a), (d). The district court sentenced appellee under the Sentencing Guidelines to 24 months imprisonment, 5 years supervised release, and a $50.00 special assessment. This appeal involves sentencing issues only. See 18 U.S.C. § 3742(b)(3). For reversal the government argues the district court abused its discretion in granting appellee a downward departure from the applicable guideline sentencing range on the basis of appellee’s race and family situation, specifically the fact that appellee was a bi-racial adopted child. For the reasons discussed below, we affirm the conviction, vacate the sentence and remand the case to the district court for resentencing.

The underlying facts are not disputed. On May 30, 1989, appellee robbed the Princeton State Bank in Pease, Minnesota. He brandished what was later determined to be a BB gun and told the bank teller that “I have no qualms about shooting you.” Appellee fled in a car and was arrested a short time later by a state highway patrol officer. The money (about $9,500), the clothes worn by the robber and the gun were found in the car. Appellee was indicted and charged with one count of armed bank robbery in violation of 18 U.S.C. § 2113(a), (d). He agreed to plead guilty. As part of the plea agreement, the parties stipulated that appellee would receive a two-point reduction for acceptance of responsibility, pursuant to Guidelines § 3E1.1, because he confessed and cooperated with the authorities in the investigation. According to the presentence investigation report, appellee’s total offense level was 20, his criminal history category was I because he had no prior criminal history, and the applicable guideline sentencing range was 33-41 months.

The district court granted appellee a downward departure and sentenced him to only 24 months imprisonment. The district court explained that its grant of a downward departure was because of appellee’s adoptive background. Appellee is bi-racial; he was adopted by a white couple when he was three months old. At the time of the adoption neither the adoption agency nor his adoptive parents realized that appellee was bi-racial. As noted by the district court, appellee was only 21 years old at the time of the offense and had been a honors student in high school and had successfully completed one year of vocational training. The district court also based its grant of a downward departure in the present case on the disparity between the guideline sentencing range applicable to appellee and the lower guideline sentencing range applicable to the defendant in a bank fraud case also pending before the court.

The government argues forcefully that the district court abused its discretion in granting a downward departure on the basis of appellee’s race and family situation. The government argues that under the sentencing guidelines neither race nor family situation are ordinarily relevant in determining whether a sentence should be outside the guidelines. See Guidelines §§ 5H1.6 (family ties and responsibilities), 5H1.10 (race, sex, national origin, creed, religion, socio-economic status). Appellee argues that the district court did not rely upon race but instead relied upon his mental and emotional condition. See Guidelines § 5H1.3. There is some evidence in the record that indicates that bi-racial children, especially bi-racial adopted children, often experience severe identity crises and that adopted children are in trouble with the authorities more often than children who have not been adopted.

Under the sentencing guidelines district courts must impose a sentence within the applicable guideline sentencing range unless “the court finds ... 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 [different] sentence.” 18 U.S.C. § 3553(b). “The guidelines materials clearly indicate that departures [from the applicable guideline sentencing range] ‘were intended to be quite rare.’ ” United States v. Neil, 903 F.2d 564, 565 (8th Cir.1990), citing United States v. Justice, 877 F.2d 664, 666 (8th Cir.), cert. denied, — U.S. —, 110 S.Ct. 375, 107 L.Ed.2d 360 (1989). This circuit follows a three-step test to decide whether a departure from the guidelines is permissible for the reasons stated by the district court. See, e.g., United States v. Lang, 898 F.2d 1378, 1379-80 (8th Cir.1990). We must “determine [, first,] whether the mitigating circumstances the district court relied on are of a kind or degree appropriate to justify departure, [next,] whether these circumstances actually exist in this case, and [finally,] whether the degree of departure is reasonable.” United States v. Big Crow, 898 F.2d 1326, 1331 (8th Cir.1990), citing United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, — U.S. —, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989).

MENTAL AND EMOTIONAL CONDITION

Because the district court did not rely upon appellee’s mental and emotional condition as a reason for departing from the applicable guideline sentencing range, we will not consider those circumstances as a basis for departure. We note, however, contrary to appellee’s argument, that “[m]ental and emotional conditions are not ordinarily relevant in determining whether a sentence should be outside the guidelines.” Guidelines § 5H1.3 (noting that mental and emotional conditions, whether mitigating or aggravating, may be relevant in determining the length and condition of probation or supervised release).

RACE AND FAMILY SITUATION

We hold the district court abused its discretion in sentencing appellee outside the applicable guideline sentencing range because he was a bi-racial adopted child. First, in establishing the Sentencing Guidelines, Congress expressly directed the Sentencing Commission to “assure that the guidelines and policy statements are entirely neutral as to the race, sex, national origin, creed, and socioeconomic status of offenders.” 28 U.S.C. § 994(d). This Congressional directive is clearly set forth in Guidelines § 5H1.10. For this reason, ap-pellee’s race or racial background cannot be a basis for departure. See United States v. Diaz-Villafane, 874 F.2d at 49 n. 5 (guidelines bar departures based on enumerated factors such as race, sex and national origin); cf. United States v. Natal-Rivera, 879 F.2d 391, 393 (8th Cir.1989) (guidelines do not violate due process because they do not allow consideration of cultural background when imposing sentence). But see United States v. Big Crow, 898 F.2d at 1331-32 (affirming departure because of offender’s consistent employment record and efforts to make “decent life in difficult environment” on Pine Ridge Indian Reservation).

Similarly, under the guidelines, “family ties ... are not ordinarily relevant in determining whether a sentence should be outside the guidelines.” Guidelines § 5H1.6. Most courts have refused to depart on the basis of family circumstances on the basis of this guideline policy statement. See United States v. Neil, 903 F.2d at 565-66 (close family ties and helping young people not sufficiently unusual); United States v. Sutherland, 890 F.2d 1042, 1043 (8th Cir.1989) (per curiam) (no departure despite “unusual family responsibilities”); United States v. Sailes, 872 F.2d 735, 739 (6th Cir.1989) (no departure despite status as custodial parent of minor children); United States v. Weidner, 703 F.Supp. 1350, 1356 (N.D.Ind.1988) (no departure despite support of spouse and stepchildren), aff'd mem., 885 F.2d 873 (7th Cir.1989); United States v. Rodriguez, 691 F.Supp. 1252, 1253 (W.D.Mo.1988) (reference in dicta to another case in which court held it was not unreasonable to consider “special family situation” when both parents of small children faced imprisonment), aff'd mem., 881 F.2d 1080 (8th Cir.1989). But cf. United States v. Big Crow, 898 F.2d at 1331-32 (affirming departure based in part upon marriage and support of children in “difficult environment” of Indian reservation). Our initial task is to determine whether departure is justified on the basis of appellee’s family situation, that is, his status as an adopted child. The guidelines apparently do not refer to adoptive status. However, adoption, even cross-racial or cross-cultural adoption, although not common, is not rare or unusual in the United States. For this reason, we do not think an offender’s status as an adopted child is so unusual or atypical that the Sentencing Commission did not adequately take such circumstances into consideration in formulating the guidelines.

SENTENCING DISPARITY

We further note that the district court should not have relied upon the perceived disparity between the sentencing guideline range applicable to appellee and that applicable to the defendant in another bank case. The sentencing guidelines are intended to reduce disparity between similar individuals convicted of similar offenses. According to the government, the case referred to by the district court involved the offense of making false statements in connection with bank loans, an offense which would not be comparable to appellee’s offense of armed bank robbery. See Brief for Appellant at 2 n. 2. On remand the district court should not consider this perceived disparity when imposing sentence.

Despite oúr conclusion that appellee’s status as a bi-racial adopted child does not warrant a downward departure, the district court on remand should consider this circumstance, as well as appellee’s excellent academic record and other factors, in deciding the sentence to be imposed within the applicable guideline sentencing range. We note that the government has acknowledged that a sentence at the lower end of the applicable guideline sentencing range would be appropriate in the present case.

Accordingly, we affirm the conviction, vacate the sentence and remand the case to the district court for resentencing within the applicable guideline sentencing range.