United States v. Menyweather

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 03-50496
Plaintiff-Appellant,
v.  D.C. No.
CR-00-01253-R
DOROTHY MENYWEATHER,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued October 13, 2004; Resubmitted December 7, 2005
San Francisco, California
Filed December 16, 2005
Before: Andrew J. Kleinfeld, Michael Daly Hawkins, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Graber;
Dissent by Judge Kleinfeld
16479
16482 UNITED STATES v. MENYWEATHER
COUNSEL
Nicholas A. Marsh, Trial Attorney, Criminal Division, Public
Integrity Section, United States Department of Justice, Wash-
ington, D.C., for the plaintiff-appellant.
Elizabeth A. Newman, Deputy Federal Public Defender, Los
Angeles, California, for the defendant-appellee.
OPINION
GRABER, Circuit Judge:
For the third time, the United States appeals the sentence
imposed upon Defendant Dorothy Menyweather’s conviction
UNITED STATES v. MENYWEATHER 16483
by guilty plea to one count of mail fraud, in violation of 18
U.S.C. §§ 1341 and 1346. The government objects to the dis-
trict court’s eight-level downward departure for mental and
emotional condition, diminished capacity, and extraordinary
family circumstances, a departure that the district court has
reimposed twice after remands from this court. United States
v. Menyweather, No. 01-50438, 36 F. App’x 262 (9th Cir.
May 16, 2002) (unpublished disposition) (“Menyweather I”);
United States v. Menyweather, No. 02-50457, 69 F. App’x
874 (9th Cir. July 7, 2003) (unpublished disposition)
(“Menyweather II”).
While this third appeal was pending, the Supreme Court
decided United States v. Booker, 125 S. Ct. 738 (2005), alter-
ing significantly the legal context in which we must decide
this appeal. Before Booker, we reviewed de novo whether a
departure was proper under the constraints set forth in the
United States Sentencing Guidelines (“U.S.S.G.” or “Guide-
lines”). See 18 U.S.C. § 3742(e). Now, instead, we review the
district court’s sentence for “reasonableness.” Booker, 125
S. Ct. at 765-66. Also, whereas the district court was previ-
ously required to sentence according to the Guidelines, the
Guidelines are now “effectively advisory.” Id. at 757.
The district court, of course, did not have the benefit of
Booker and sentenced Defendant under the assumption that
the Guidelines were mandatory. We conclude that the district
court did not abuse its discretion by downwardly departing
from the Guidelines. Moreover, even if the district court
strayed from the departure authority available under the
Guidelines, any error was harmless in view of the sentencing
factors listed in 18 U.S.C. § 3553(a) (which the district court
can now consider after Booker) and in view of our belief that
the court would impose the same sentence again, having
steadfastly maintained its position in the face of two opportu-
nities to revise its sentence. Finally, we conclude that the
resulting sentence was reasonable, and we affirm.
16484 UNITED STATES v. MENYWEATHER
FACTUAL AND PROCEDURAL BACKGROUND
Defendant began working as an administrative employee at
the United States Attorney’s office in Los Angeles in 1990.
In 2000, she was indicted on 10 counts of theft of government
funds, mail fraud, and wire fraud. She pleaded guilty to one
count of mail fraud and admitted to having used government
credit cards for unauthorized personal purchases of between
$350,000 and $500,000.
At sentencing, the parties agreed with the probation office
that Defendant’s offense level was 16 and that her Criminal
History Category was I, resulting in a sentencing range of 21
to 27 months. Defendant requested, and the government
opposed, a six-level downward departure because of Defen-
dant’s family circumstances and mental and emotional condi-
tion. In support of her request, Defendant produced the
evaluation of Dr. Barbara Cort Counter, a forensic psycholo-
gist.
Dr. Counter characterized Defendant as suffering from “se-
vere symptoms of posttraumatic stress” occasioned by two
events: her abandonment by her parents as a child and the vio-
lent murder of her fiancé, the bloody aftermath of which she
witnessed while five months pregnant with their child in
1989. Defendant’s theft offense, according to Dr. Counter,
was part of a “manic denial of psychic trauma accompanied
by compulsive coping behaviors.” Dr. Counter had evaluated
Defendant for three-and-one-half hours, administered and
reviewed a psychological test, spoken with Defendant’s coun-
sel, and reviewed letters submitted by Defendant’s family
members. Defendant made Dr. Counter available for cross-
examination, which the government declined at the first sen-
tencing hearing. Nor did the government offer any expert psy-
chological testimony of its own.
Defendant also argued for a departure because of the
unusually important role that she played in the life of her
UNITED STATES v. MENYWEATHER 16485
daughter, who was 11 years old at the time of the first sen-
tencing hearing in 2001. Since the murder of her fiancé,
Defendant has been the sole parent and the primary source of
financial support for her daughter.
After hearing argument, the district court departed down-
ward by eight levels, resulting in a sentencing range of zero
to 6 months. The court sentenced Defendant to five years of
probation, upon the condition that she serve 40 days of her
probation, on consecutive weekends, in “a jail-type institu-
tion.” The court also ordered restitution totaling $435,918,
plus 3,000 hours of community service. In addition, Defen-
dant was prohibited from applying for a loan or line of credit
without the prior approval of the probation office.
The government appealed, and we vacated the sentence and
remanded for resentencing because the district court had
given no reasons for “the direction and the degree of the
departure.” Menyweather I, 36 F. App’x at 263. After that
first remand, the district court denied the government’s
motions for an independent psychological evaluation of
Defendant and additional investigation by the probation
office, ruling that those procedures could have been, but were
not, requested at the initial sentencing. After a hearing at
which the government cross-examined Dr. Counter, the court
reaffirmed its previous sentence. In support of the sentence,
the court recited and adopted specific findings of fact and
conclusions of law, as well as noting that it relied on Defen-
dant’s post-conviction rehabilitation.
In Menyweather II, we again vacated the district court’s
sentence and remanded, holding that the court (1) erred in
relying on post-conviction rehabilitation without giving notice
to the government, and (2) failed to explain the extent of the
departure, as distinct from the bases for departure. 69 F.
App’x 874-75. On remand, the district court again denied the
government’s request for further development of the record
and reaffirmed its sentence. In support of the sentence, the
16486 UNITED STATES v. MENYWEATHER
court adopted expanded findings of facts and conclusions of
law that included citations to cases in which downward depar-
tures of comparable degree had been affirmed. The court
eliminated its earlier reliance on post-conviction rehabilita-
tion.
The government timely appealed the sentence.
LEGAL STANDARDS AND STANDARDS OF REVIEW
[1] In the wake of Booker, federal sentencing is now gov-
erned by 18 U.S.C. § 3553(a), which states that district courts
“shall consider” the following factors:
(1) the nature and circumstances of the offense
and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just pun-
ishment for the offense;
(B) to afford adequate deterrence to criminal con-
duct;
(C) to protect the public from further crimes of
the defendant; and
(D) to provide the defendant with needed educa-
tional or vocational training, medical care, or other
correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range
established for—
UNITED STATES v. MENYWEATHER 16487
(A) the applicable category of offense committed
by the applicable category of defendant as set forth
in the guidelines—
(i) issued by the Sentencing Commission pursu-
ant to section 994(a)(1) of title 28, United States
Code . . . ; and
(ii) that, except as provided in section 3742(g),
are in effect on the date the defendant is sentenced;
or
(B) in the case of a violation of probation or
supervised release, the applicable guidelines or pol-
icy statements issued by the Sentencing Commission
pursuant to section 994(a)(3) of title 28, United
States Code . . . ;
(5) any pertinent policy statement—
(A) issued by the Sentencing Commission pursu-
ant to section 994(a)(2) of title 28, United States
Code . . . ; and
(B) that, except as provided in section 3742(g), is
in effect on the date the defendant is sentenced.
(6) the need to avoid unwarranted sentence dis-
parities among defendants with similar records who
have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims
of the offense.
As the Supreme Court pointed out in Booker, § 3553(a)
makes the Guidelines sentencing range a required consider-
ation, see § 3553(a)(4), but “permits the court to tailor the
sentence in light of other statutory concerns as well.” Booker,
16488 UNITED STATES v. MENYWEATHER
125 S. Ct. at 757; see also id. at 767 (“The district courts,
while not bound to apply the Guidelines, must consult those
Guidelines and take them into account when sentencing.”).
[2] Like many other circuits, we have thus continued to
address challenges to a district court’s interpretation and
application of the Guidelines because, although the district
court is not bound by the Guidelines, it still should “consult
them for advice as to the appropriate sentence.” United States
v. Kimbrew, 406 F.3d 1149, 1152 (9th Cir. 2005) (citing
Booker, 125 S. Ct. at 767). Several of our sister circuits have
held that, to comply with Booker’s mandate that district courts
“take [the Guidelines] into account when sentencing,” 125
S. Ct. at 767, courts normally must determine and consider
the correct Guidelines range. See, e.g., United States v.
Haack, 403 F.3d 997, 1002-03 (8th Cir.), cert. denied, 126
S. Ct. 276 (2005); United States v. Crosby, 397 F.3d 103,
111-12 (2d Cir. 2005). Also, because § 3553(a)(5) demands
consideration of the Sentencing Commission’s policy state-
ments, courts likewise must consider whether the Guidelines
provide authority to depart. Haack, 403 F.3d at 1002; Crosby,
397 F.3d at 113; see also United States v. Jackson, 408 F.3d
301, 305 (6th Cir. 2005) (holding that consideration of advi-
sory Guidelines provisions, including departures, is required);
United States v. Crawford, 407 F.3d 1174, 1183 (11th Cir.
2005) (remanding because grounds for departure were imper-
missible under the Guidelines). An error in determining the
Guidelines range, or in understanding the authority to depart
from that range, can prevent district courts from properly con-
sidering the Guidelines. See, e.g., United States v. Selioutsky,
409 F.3d 114, 118 (2d Cir. 2005) (“An error in determining
the applicable Guideline range or the availability of departure
authority would be the type of procedural error that could ren-
der a sentence unreasonable under Booker.”); Crawford, 407
F.3d at 1183 (“true consultation cannot be based on an errone-
ous understanding of the Guidelines”). Thus, if the sentence
imposed resulted from an incorrect application of the Sentenc-
ing Guidelines, and the error was not harmless, ordinarily we
UNITED STATES v. MENYWEATHER 16489
will remand to the district court for further sentencing pro-
ceedings, permitting the district court on remand to consider
the proper Guidelines sentence along with other sentencing
factors. Kimbrew, 406 F.3d at 1153; see also United States v.
Riggs, 410 F.3d 136, 136-37 (4th Cir. 2005); Crawford, 407
F.3d at 1183; Haack, 403 F.3d at 1003.
In this case, the first question is whether the district court
began with the correct Guidelines sentence. With respect to
that question, the usual standards of review apply: “[We]
review[ ] the district court’s interpretation of the Sentencing
Guidelines de novo, the district court’s application of the Sen-
tencing Guidelines to the facts of this case for abuse of discre-
tion, and the district court’s factual findings for clear error.”
Kimbrew, 406 F.3d at 1151. The parties agreed, and we see
no error in their agreeing to, the Guidelines range of 21 to 27
months.
[3] The second question is whether the district court prop-
erly understood its authority to depart downward under the
then-mandatory Guidelines. Because Booker excised the de
novo review of departures previously mandated by 18 U.S.C.
§ 3742(e), 125 S. Ct. at 765, we hold that the appropriate stan-
dard for reviewing the district court’s determination of its
departure authority is abuse of discretion, see Koon v. United
States, 518 U.S. 81, 98-100 (1996), the standard in place
before the statutory de novo review was enacted in 2003.1
Accord Selioutsky, 409 F.3d at 119 (holding that abuse of dis-
cretion is the appropriate standard for reviewing, as an ele-
ment of reasonableness review, whether a departure is
permissible under the Guidelines).
We conclude that, under this standard of review, the district
court did not abuse its discretion by departing downward for
1
See Prosecutorial Remedies and Other Tools to end the Exploitation of
Children Today Act of 2003 (“PROTECT Act”), Pub. L. No. 108-21, 117
Stat. 650 (enacting de novo review of departures).
16490 UNITED STATES v. MENYWEATHER
diminished capacity under U.S.S.G. § 5K2.13 or by departing
downward for family circumstances under U.S.S.G. § 5H1.6.
Alternatively, even if the district court abused its discretion by
departing downward under the Guidelines, we hold that any
error was rendered harmless in this case by the court’s
expanded authority to consider circumstances related to the
sentencing factors in 18 U.S.C. § 3553(a).
DISCUSSION
A. The district court did not abuse its discretion by
departing downward for “diminished capacity” under
U.S.S.G. § 5K2.13.
[4] The Sentencing Guidelines identify “diminished capaci-
ty” as a factor that may not have been considered adequately
by the Sentencing Commission in promulgating the
Guidelines—that is, as an encouraged factor for departure.2
U.S.S.G. §§ 5K2.0, 5K2.13. Under the version of § 5K2.13 in
effect at the time of Defendant’s first sentencing in 2001, a
departure is appropriate if “the defendant committed the
offense while suffering from a significantly reduced mental
capacity,” defined as
a significantly impaired ability to (A) understand the
wrongfulness of the behavior comprising the offense
or to exercise the power of reason; or (B) control
behavior that the defendant knows is wrongful.
U.S.S.G. § 5K2.13. cmt. n.1 (2000).3 This court has held that
2
The district court also relied on Defendant’s “mental and emotional
condition.” See U.S.S.G. § 5H1.3. We held in United States v. Smith, 330
F.3d 1209, 1214 (9th Cir. 2003), cert. denied, 540 U.S. 1127 (2004), that
the Guidelines limit departure for a defendant’s mental condition to that
provided for in § 5K2.13. Defendant conceded that, because of Smith, the
district court’s reliance on § 5H1.3 was error under the Guidelines.
3
Many of the departure provisions in the Guidelines were amended in
2003. U.S.S.G. app. c, amend. 651 (effective Oct. 27, 2003). Section
UNITED STATES v. MENYWEATHER 16491
post-traumatic stress disorder can be the basis for a departure
under § 5K2.13 if the “ailment distorted [Defendant’s] rea-
soning[,] interfered with [her] ability to make considered
decisions,” and contributed to the commission of the offense
in some way. United States v. Cantu, 12 F.3d 1506, 1513,
1515 (9th Cir. 1993).
[5] The district court found that Defendant suffers from
post-traumatic stress disorder and concluded that, because that
disorder contributed to her offense conduct, a departure was
warranted under § 5K2.13. In reaching its conclusion, the dis-
trict court did not clearly err by crediting the detailed opinion
of a licensed psychologist, in preference to the government’s
arguments that the psychologist was mistaken or had insuffi-
cient information on which to base her conclusion. The gov-
ernment did not challenge Dr. Counter’s qualifications, nor
did the government offer rebuttal evidence from another psy-
chologist. Although the government’s counsel presented per-
suasive arguments,4 the district court was not required to
accept those arguments. The district court had the opportunity
5K2.13 was amended to impose the additional requirement that the defen-
dant’s significantly reduced mental capacity have “contributed substan-
tially to the commission of the offense.” Id. Because the district court was
required to apply the Guidelines provision in effect at the time of Defen-
dant’s initial sentencing, see United States v. Johns, 5 F.3d 1267, 1272
(9th Cir. 1993) (holding that removal of sentencing discretion can impli-
cate Ex Post Facto Clause), we will consider only the earlier version of
§ 5K2.13.
4
The government presented four main arguments, several derived from
its cross-examination of Dr. Counter at the second sentencing hearing: (1)
Defendant lived as a successful and responsible professional and parent,
with no psychological treatment, for eight years after the death of her
fiancé and before her embezzlement scheme began; (2) Dr. Counter evalu-
ated Defendant only after her indictment and thus could not precisely sep-
arate the traumatic effect of Defendant’s prosecution from the traumatic
effect of earlier events in her life; (3) Dr. Counter did not know that the
family members whose letters she had evaluated had benefitted financially
from Defendant’s scheme; and (4) Dr. Counter had not interviewed any of
Defendant’s co-workers.
16492 UNITED STATES v. MENYWEATHER
to evaluate Dr. Counter’s credibility under cross-examination,
and we cannot say that the court clearly erred by finding her
credible and by accepting her opinion that Defendant’s
chronic symptoms of post-traumatic stress were linked to her
inability to make reasoned decisions and to her compulsive
acquisition behavior.
[6] In view of that finding of fact, which is not clearly erro-
neous, the court did not abuse its discretion by finding a
departure appropriate under U.S.S.G. § 5K2.13. In Cantu, we
interpreted § 5K2.13 to require that an “ailment distorted
[Defendant’s] reasoning[,] interfered with [her] ability to
make considered decisions[,]” and contributed to the commis-
sion of the offense in some way.5 12 F.3d at 1513, 1515; see
also United States v. Thompson, 315 F.3d 1071, 1079 (9th
Cir. 2002) (Berzon, J., concurring) (discussing 1998 amend-
ment to § 5K2.13, expressly permitting courts to consider
volitional impairments).
B. Even if the court abused its discretion under U.S.S.G.
§ 5H1.6, any error was harmless.
[7] Unlike diminished capacity, family circumstance is a
discouraged factor under the Guidelines, which state that
“family ties and responsibilities and community ties are not
ordinarily relevant” in determining whether a departure is
warranted. U.S.S.G. § 5H1.6 (2000);6 see also United States
v. Aguirre, 214 F.3d 1122, 1127 (9th Cir. 2000) (referring to
family circumstance as a “discouraged” factor). A discour-
aged factor may be grounds for departure under the Guide-
5
The other requirements of § 5K2.13 are not in dispute here. See Cantu,
12 F.3d at 1511 (discussing § 5K2.13’s requirements that the offense be
nonviolent, that the reduced mental capacity not be caused by voluntary
use of drugs, and that the defendant’s criminal history not indicate a need
for incarceration to protect the public).
6
The relevant text of § 5H1.6 has not changed since Defendant’s initial
sentencing.
UNITED STATES v. MENYWEATHER 16493
lines if it is “present to an exceptional degree or in some other
way makes the case different from the ordinary case where
the factor is present.” Koon, 518 U.S. at 96. To determine
whether Defendant’s family circumstances are extraordinary,
we compare this case to others in which district courts have
granted downward departures under § 5H1.6, being mindful
that some of our cases were decided under de novo, rather
than abuse of discretion, review.
[8] In United States v. Leon, 341 F.3d 928, 931 (9th Cir.
2003), we commented that downward departures based on
§ 5H1.6 “generally involve situations where the defendant is
an irreplaceable caretaker of children, elderly, and/or seri-
ously ill family members.” We concluded, on de novo review,
that a departure was proper because of the particular nature of
the defendant’s wife’s ailments and the unique physical,
material, and emotional support that the defendant provided.
Id. at 933. In Aguirre, applying the abuse of discretion stan-
dard, we upheld a four-level downward departure where the
death of the defendant’s husband left their eight-year-old son
without a custodial parent. 214 F.3d at 1127. We declined to
“second guess the district court’s determination that this case
involved an unusual family situation.” Id.
By contrast, in United States v. Miller, 991 F.2d 552, 553
(9th Cir. 1993), and United States v. Berlier, 948 F.2d 1093,
1096 (9th Cir. 1991), on de novo review, we held that down-
ward departures were not appropriate because there was noth-
ing unusual about the family situations presented. In each
case, the children had another parent to care for them while
the defendants were incarcerated. See Miller, 991 F.2d at 556
(Tang, C.J., concurring in part and dissenting in part); Berlier,
948 F.2d at 1096.
[9] The conclusions that we reached in Leon, Aguirre, Mil-
ler, and Berlier are consistent with the First Circuit’s view
that, when evaluating departures for family responsibilities
under § 5H1.6, courts should assess the nature of the care that
16494 UNITED STATES v. MENYWEATHER
the defendant provides to his or her family members and
determine whether “there are feasible alternatives of care that
are relatively comparable” to the defendant’s. United States v.
Roselli, 366 F.3d 58, 68-69 (1st Cir. 2004) (internal quotation
marks omitted). Here, the district court essentially concluded
that the relationship between Defendant and her daughter was
so unusual that care by others was not feasible:
This case does not simply involve a single mother
and child. The facts and circumstances show unusual
traumatic circumstances for this mother and child
and an unusual relationship between the two. This
mother has been the sole parent caring for the child
at home and after school. The mother has been con-
sistently employed since the child’s birth and her pri-
mary source of financial support. The social security
benefits the child receives monthly (less than $400)
are minimal and insufficient to support a child.
[Defendant] has a special relationship with this child
who has already lost one parent and has never been
without her sole surviving parent excluding absences
during brief trips.
The court also relied on the fact that, although Defendant’s
grandmother and great-aunt live nearby, their housing situa-
tion is unsafe.
[10] Were we reviewing de novo, we would conclude that
Defendant did not prove that she provides care that is irre-
placeable or that could not feasibly be provided by another.
Under an abuse of discretion standard, however, we hesitate
to “second guess” the district court’s conclusion that Defen-
dant’s relationship with her daughter, and the care that Defen-
dant provides, are unusual as compared with the situation of
other single parents. As we did in Aguirre, 214 F.3d at 1127,
we acknowledge that district courts are “particularly suited”
to determine whether a factor makes a case unusual, because
they are “informed by [their] vantage point and day-to-day
UNITED STATES v. MENYWEATHER 16495
experience in criminal sentencing,” Koon, 518 U.S. at 98. We
therefore conclude that the district court did not abuse its dis-
cretion by downwardly departing under § 5H1.6.
[11] Alternatively, even if we were to accept the govern-
ment’s argument that the district court erred by departing on
this basis under the Guidelines, we can say confidently that
any error would be harmless to the government in this case.
This is because, under the unusual circumstances present in
this third-time appeal, we recognize that the district court
could—and would—impose the same sentence again under
the now-advisory Guidelines regime.
[12] In the “broader appraisal,”7 available to district courts
after Booker, courts can justify consideration of family
responsibilities, an aspect of the defendant’s “history and
characteristics,” 18 U.S.C. § 3553(a)(1), for reasons extending
beyond the Guidelines. “District courts now . . . have the dis-
cretion to weigh a multitude of mitigating and aggravating
factors that existed at the time of mandatory Guidelines sen-
tencing, but were deemed ‘not ordinarily relevant,’ such as
age, education and vocational skills, mental and emotional
conditions, employment record, and family ties and responsi-
bilities.” United States v. Ameline, 409 F.3d 1073, 1093 (9th
Cir. 2005) (en banc) (Wardlaw, J., concurring in part and dis-
senting in part) (emphasis added). The difficulty of providing
appropriate care for a child of a single parent may, when bal-
anced against factors such as the nature of the offense,
§ 3553(a)(1), deterrence to criminal conduct, § 3553(a)(2)(B),
and protection of the public, § 3553(a)(2)(C), warrant a sen-
tence outside the Guidelines.
[13] Furthermore, as we have said, we have no doubt that
7
United States v. Gorsuch, 404 F.3d 543, 548 (1st Cir. 2005) (“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”).
16496 UNITED STATES v. MENYWEATHER
the district court would impose the same sentence under the
advisory Guidelines regime, as the district court has imposed
the identical sentence three times already. See Selioutsky, 409
F.3d at 118 n.7 (noting court arguably could forego review of
the correctness of the departure under the Guidelines if it had
a “sufficient basis for believing that the same sentence would
have been imposed as a non-Guidelines sentence,” because
“any error in using departure authority to select the sentence
that was imposed would be harmless”). The district court
clearly believed that, in this case, the potential harm to the
close relationship between this single parent and her child
outweighed the benefits of a prolonged period of incarceration
to achieve deterrence, protection of the public, and punish-
ment. Indeed, the court stated that the conditions of Defen-
dant’s probation were “as strenuous as any other sentence I
could impose.” Cf. 18 U.S.C. § 3553(a)(3) (directing courts to
consider “the kinds of sentences available”). We also observe
that the district court’s goal of obtaining restitution for the
victims of Defendant’s offense, 18 U.S.C. § 3553(a)(7), is
better served by a non-incarcerated and employed defendant.
In sum, family circumstances were a permissible consider-
ation here—if not under the Guidelines, then as part of a bal-
ancing of factors under § 3553(a).
C. The length of the sentence was reasonable, considering
the combination of factors.
Finally, we turn to the government’s objections to the
length of the sentence (or, more precisely, to the extent of the
downward departure from the Guidelines offense level). In
post-Booker parlance, this is essentially a challenge to the
“reasonableness” of the ultimate sentence.
As a threshold matter, the government contends that the
district court failed to give reasons for the extent of its depar-
ture from the Guidelines and, thereby, failed to comply with
our mandate in Menyweather II. We agree that, after Booker,
the district court still is “required to articulate the reasons for
UNITED STATES v. MENYWEATHER 16497
the extent of the departure in sufficiently specific language to
allow appellate review.” United States v. Working, 224 F.3d
1093, 1102 (9th Cir. 2000) (en banc) (internal quotation
marks omitted); see 18 U.S.C. § 3553(c) (requiring a state-
ment of reasons for the particular sentence imposed); see also
Crosby, 397 F.3d at 116 (noting that § 3553(c) was not
excised by the Supreme Court in Booker).
But we do not agree that the district court failed to explain
the extent of its departure here. In response to our remand in
Menyweather II, the district court explained the extent of its
departure from the Guidelines by supplementing its factual
findings and, for each factor on which it based its decision to
depart, citing and describing several other cases in which
courts had departed downward on similar facts. Although the
court did not make express comparisons between Defendant’s
case and the cited cases, the cited cases are facially similar
and their presence alone implies that a comparative analysis
led the court to select an eight-level departure. More impor-
tantly, as this court required in Working, 224 F.3d at 1102, the
supplemented factual findings and comparative citations pro-
vide a basis for us to review, on the merits, whether the length
of the sentence was reasonable.
Even before Booker, our task was to determine whether the
extent of a departure was reasonable, so our cases applying
abuse of discretion review to that question remain relevant
after Booker. See United States v. Alfaro, 336 F.3d 876, 881
(9th Cir. 2003) (citing 18 U.S.C. § 3742(e)(3) and reviewing
for abuse of discretion whether the extent of a departure was
reasonable); United States v. Working, 287 F.3d 801, 806 (9th
Cir. 2002) (same). We commonly have performed that review
by comparing the defendant’s case with other published cases
in which departures have been affirmed. See, e.g., United
States v. Green, 105 F.3d 1321, 1323 (9th Cir. 1997). In
Green, we noted that departures for a particular factor had
generally ranged between one and five levels; therefore, we
16498 UNITED STATES v. MENYWEATHER
concluded that a 15-level departure was an abuse of discre-
tion. Id.
[14] Our cases show that downward departures for dimin-
ished capacity generally range between one and four levels.
See, e.g., United States v. Malley, 307 F.3d 1032, 1033-34
(9th Cir. 2002) (five-level departure; combination of dimin-
ished capacity and extraordinary acceptance of responsibil-
ity); United States v. Garza-Juarez, 992 F.2d 896, 913 (9th
Cir. 1993) (four-level departure; combination of the defen-
dant’s panic disorder with agoraphobia and coercion under
§ 5K2.12); United States v. Lewison, 988 F.2d 1005, 1007
(9th Cir. 1993) (four-level departure under § 5K2.13 for long-
standing psychological problems was “well within line with
other adjustments established by the guidelines for various
mitigating factors indicating diminished culpability”). Down-
ward departures for extraordinary family circumstances most
often fall within a similar range. See, e.g., Leon, 341 F.3d at
929, 933 (six-level departure); Aguirre, 214 F.3d at 1128
(four-level departure); Roselli, 366 F.3d at 67, 70 (three-level
departure).
[15] Considering those cases, and the sentencing factors in
§ 3553(a), we cannot say that an eight-level downward depar-
ture for the combined effect of two factors—Defendant’s
diminished capacity and family circumstances—was unrea-
sonable. The district court expressly justified its sentence of
probation by saying that it viewed the conditions of probation
as very “strenuous,” yet without causing a significant disrup-
tion of the parent-child relationship. The nature of the offense
was not such that incarceration, as distinct from strict controls
on Defendant’s financial activities, was necessary to protect
the public or afford deterrence. See 18 U.S.C. § 3553(a)(2);
cf. Working, 287 F.3d at 809 (remanding because the “court’s
reasoning was insufficient to justify a departure that resulted
in no sentence at all for a serious crime of violence”). Also,
as we have mentioned, a sentence of probation may have
UNITED STATES v. MENYWEATHER 16499
made Defendant better able to provide restitution to the vic-
tims of her crime, see 18 U.S.C. § 3553(a)(7).
[16] Although we are unlikely to have selected this particu-
lar sentence if we were doing the sentencing, that is not our
function. In these circumstances, we find no abuse of discre-
tion in the sentence (upon Defendant’s conviction for a single
count of mail fraud) consisting of five years of probation, on
the condition that Defendant serve 40 days in jail on consecu-
tive weekends; plus $435,918 in restitution, to be paid first to
the individual victim; plus 3,000 hours of community service;
plus a prohibition from applying for a loan or line of credit
without the prior approval of the probation office.
AFFIRMED.
KLEINFELD, Circuit Judge, dissenting:
I respectfully dissent. The new sentencing regime does not
justify this abdication of our duty of review. The majority’s
application of review for abuse of discretion equates it with
no review.
For many years, Menyweather worked in administration for
the United States Attorney’s office in Los Angeles. During
this period, she used her government credit card and other
peoples’s cards for almost three years to steal over $435,000
— that the government has been able to verify — and faked
certifications and computer entries to cover up her thefts. Yet
she has not been sent to prison.
Menyweather went to work for the United States Attorney
in 1990 as a clerical employee, so she was a long trusted
member of the office when she got promoted to procurement
in 1997. Almost immediately, she began stealing, mostly by
using the procurement credit cards to buy such things for her-
16500 UNITED STATES v. MENYWEATHER
self as clothes, gift certificates, appliances, cellular phones
and service, car repairs, insurance, and even computers. She
sold some of what she stole, including $12,500 worth of com-
puter equipment. She also took trips to Alaska, Australia, and
Israel, as well as Palm Desert, Dallas, Columbus, Birming-
ham, Houston, and Monroe, Louisiana, all on stolen money.
Menyweather planned a week long cruise in the Carribean,
bought with stolen money, but the government was able to
stop payment on it when she was caught.
In addition to stealing for herself, Menyweather used stolen
money to dramatize herself as a Lady Bountiful. She bought
her sister-in-law in Tacoma a computer, printer, monitor and
software. And she bought a dozen computers for the needy.
About $20,000 of the stolen money was contributed to chari-
table organizations. She took numerous children to Las
Vegas, twice, and to a church conference in New Mexico, all
on the government nickel. She took eight people to a church
conference in Atlanta. She even bought eight plane tickets to
Israel. Her and her friends’s and beneficiaries’s travel cost the
government about $150,000. And she showered her friends
and relatives with such gifts as lawnmowers, computers, cell
phones and service, video games, and televisions. Nord-
strom’s alone got $53,800 of Menyweather’s bounty. The
government found over a thousand crooked transactions when
her thievery was finally discovered.
The government caught up to her and managed to stop pay-
ments on some of the more recent transactions after she had
stolen $419,521. This left a travel agency stuck for $16,397.
A lady at the travel agency, Ms. Kenichi Kimura, who had
thought she was dealing with the government — a reasonable
assumption since she was selling travel to a United States
Attorney’s procurement agent on a government credit card —
wrote a victim impact statement explaining that she was
required to pay back the loss to her company with monthly
deductions from her salary, amounting to a fifteen to twenty
percent pay cut that she could not afford. The violation of
UNITED STATES v. MENYWEATHER 16501
trust had driven her to seek counseling. She wrote, “[t]o me,
working for the Government itself is the steady, fair and irre-
sistible reason to believe. Maybe, I am Japanese and don’t
know much about the America. What else can people, includ-
ing American believe if they can’t believe the Government.”
Menyweather had suffered two severe misfortunes in her
life. When she was a child, her father deserted her family and
her mother gave her to her grandparents to raise. When she
was a young adult, the year before she went to work for the
United States Attorney (eight years before the crimes), her
fiancee was shot dead when she was five months pregnant
with his child. She had been visiting friends nearby, and
found his body as he lay bleeding to death.
Based on three and a half hours of interviews and tests, dis-
cussions with Menyweather’s lawyer, and examination of dis-
covery materials and letters from relatives, a psychologist,
Barbara Counter, Ph.D., told the court that in her opinion,
Menyweather’s thefts were caused by post-traumatic stress
from these misfortunes. She was, Dr. Counter opined, “filling
the social and emotional voids created by her unacknowl-
edged and untreated retraumatization, depression and despair
with whatever external objects she could collect. She self-
medicated” with shopping and trips. However, Dr. Counter
had never seen Menyweather before Menyweather’s lawyer
brought her in. Dr. Counter conceded that meeting Menywea-
ther after she got fired and arrested made it impossible to dis-
tinguish the claimed post-traumatic emotional disorder
resulting from the traumas years before from the effects of the
trauma of a federal felony prosecution.
The presentence report for Menyweather’s 2001 sentencing
recommended a guideline range of 21 to 27 months, $16,397
restitution to Ms. Kimura, the travel agent, and $419,521 res-
titution to the U.S. Attorney’s office. The defense urged a
downward departure to twelve months in custody (two over
the summer, the rest on weekends) because of Menyweather’s
16502 UNITED STATES v. MENYWEATHER
psychological condition as described by Dr. Counter and
because Menyweather was solely responsible for her eleven
year old daughter. The government opposed the departure,
pointing out that the trauma of her fiancee’s murder preceded
the beginning of her thefts by almost eight years and, in
between, she had completed college, completed a successful
internship, won awards, and generally done very well. The
government also pointed out that U.S.S.G. § 5H1.6 generally
made family responsibilities an irrelevant consideration for
departure.
Moreover, the government highlighted the fact that there is
nothing extraordinary about being a single mother and that
Menyweather had chosen to leave her daughter without her
supervision when she went on ten trips to Alaska, Australia,
Israel, and numerous other destinations during her travels on
stolen money. She had not even bought a ticket for her daugh-
ter (though she had for numerous other people) for the
planned Carribean cruise that the government discovered and
stopped.
The district judge, without explanation, departed downward
eight levels. He gave Menyweather an even more lenient sen-
tence than her attorney had asked for. The district court put
Menyweather on probation for five years with conditions of
restitution, community service and 40 days of jail to be served
on weekends. The judge did nothing to see that the travel
agent got paid back before the government.
We vacated and remanded for resentencing, because the
court had not provided reasons for the downward departure
and had failed to order that the travel agent be paid her restitu-
tion first, pursuant to 18 U.S.C. § 3664(I).1
1
18 U.S.C. § 3664(I) (“In any case in which the United States is a vic-
tim, the court shall ensure that all other victims receive full restitution
before the United States receives any restitution.”).
UNITED STATES v. MENYWEATHER 16503
On remand, the government moved for leave to have its
own psychiatrist evaluate Menyweather and for time to do an
independent investigation of child care resources for Meny-
weather’s daughter if Menyweather was sent to prison. The
district court denied the motions. At the sentencing hearing,
the judge would not allow the prosecution to show that all of
the letters Dr. Counter relied on were from relatives upon
whom Menyweather had showered her stolen largesse. The
judge then imposed the same sentence he had the first time.
The only change was that this time he explained why he was
departing. He listed several “justifications”: Menyweather “is
a single mother;” her thirteen year old daughter was entirely
dependent on her; Menyweather and her daughter lived in a
gated apartment community and her daughter attended private
school, but if she were imprisoned her daughter would live in
an unsafe neighborhood with her great aunt and grandmother;
Menyweather had been traumatized, as Dr. Counter had said,
yet had never received psychiatric care; and, finally, “post-
conviction rehabilitation.”
We reversed and remanded again. We noted that “post-
conviction rehabilitation” might be a prohibited basis for
departure under U.S.S.G. § 5K2.19,2 and, without giving the
government an opportunity to address this issue, the judge had
handwritten it into his justification for departure after the sen-
tencing hearing. We also noted that the judge had not given
any justification for why the departure should be eight levels
(which brought the bottom of the guideline range to zero
months).
In the district court again after this second remand, the gov-
ernment once more sought an opportunity to have its own
psychiatrist evaluate the post-traumatic, self-medication
2
U.S.S.G. § 5K2.19 (“Post-sentencing rehabilitative efforts, even if
exceptional, undertaken by a defendant after imposition of a term of
imprisonment for the instant offense are not an appropriate basis for a
downward departure when resentencing the defendant for that offense.”).
16504 UNITED STATES v. MENYWEATHER
explanation for Menyweather’s crimes, and to investigate
Menyweather’s ability to provide for suitable child care
among her extended family in the Los Angeles area if she was
imprisoned. The government also sought an opportunity to
investigate and contest the “post-sentencing rehabilitation”
issue. Again, the judge denied the motions. By this time the
daughter was 14 years old. The judge told the prosecutor “No
second bites at the apple, counsel,” even though our mandate
vacating the sentence in effect required a second bite. The
judge then reimposed the same sentence saying, “there’s noth-
ing that’s changed in the matters in which I am departing.”
The only additional justification was the judge’s signature on
findings defense counsel submitted to protect the sentence
from further appeal. In it he adopted the post-traumatic stress
theory, compared the gated community and private school
with the bad neighborhood, and justified the eight level depar-
ture by the “combination of circumstances under 5K2.0”
showing “diminished capacity, extraordinary mental and emo-
tional condition and extraordinary family circumstances.” The
findings submitted by defense counsel omitted the “post-
conviction rehabilitation” reason that we rejected previously.
Faced with the district judge’s obdurate refusal to comply
in any serious way with our mandates, we have given up.
United States v. Booker3 gives us our excuse, but it is no more
than an excuse, because a serious reading of the facts and the
law of sentencing still requires that this sentence be vacated.
United States v. Booker “excised” the statutory provisions
making the sentencing guidelines mandatory and providing
for de novo review of departures, but held that “the remainder
of the Act” imposing the guidelines is constitutional.4 The Act
“requires judges to take account of the guidelines together
with other sentencing goals. See 18 U.S.C. § 3553(a) (Supp.
3
United States v. Booker, 125 S. Ct. 738 (2005).
4
Id. at 764.
 UNITED STATES v. MENYWEATHER 16505
2004).”5 “And the Act nonetheless requires judges to impose
sentences that reflect the seriousness of the offense, promote
respect for the law, provide just punishment, afford adequate
deterrence, protect the public, and effectively provide the
defendant with needed educational or vocational training and
medical care.”6 Sentences are still to be reviewed by the
Courts of Appeal, and review is to be for “unreasonableness”
with respect to these statutory goals of sentencing.7 A serious
look at the legal criteria for sentencing requires that the sen-
tence imposed be deemed unreasonable.
Does 40 days to serve on weekends “reflect the seriousness
of the offense” of a trusted employee engaging in a long run-
ning and elaborate scheme and coverup in which she stole
over $435,000? Obviously not. Impulsive shoplifters with a
record can get a lot more time than that,8 and Congress
regards stealing more than $1000 in public money as a felony
with a 10 year maximum sentence.9 Does 40 days to serve for
this crime “promote respect for the law”? It makes a joke of
the law. Does the sentence “effectively provide the defendant
with needed educational or vocational training and medical
care”? The only person who got counseling after the crime
was the disillusioned travel agent. The court did not require
Menyweather to undergo any kind of treatment for the “post-
traumatic stress” that the court used as a justification in giving
her this lenient sentence.
Does the sentence “afford adequate deterrence”? Far from
deterring crime, the sentence invites it. $435,000 is a substan-
tial amount of money, a life-changing amount of money for
5
Id. at 744.
6
Id. at 764-65.
7
Id. at 765-66.
8
Lockyer v. Andrade, 538 U.S. 63 (2003) (upholding a 25 year to life
sentence under California three strikes law when the third offense was
shoplifting items worth less than $100).
9
18 U.S.C. § 641.
16506 UNITED STATES v. MENYWEATHER
most people. Many people would eagerly volunteer to spend
40 days in jail on weekends to become that rich. They would
earn almost $11,000 per night. A lot of jails count any portion
of a day as a day, so a person can “serve two days” by arriv-
ing at 11:30 Friday night, leaving enough time for booking
before midnight, and check out just after midnight to go home
to sleep. “Protect the public”? There is nothing in the record
to suggest that Menyweather will not steal again, if given the
opportunity. Even the one member of the public personally
and individually suffering from the crime, the travel agent,
was not protected until we ordered the district judge to insure
that she got her restitution first.
What about the sentencing guidelines? After Booker, they
are not dead, just “advisory” instead of mandatory. The guide-
lines are contrary to the sentence imposed. That is why the
judge departed from them. Review for unreasonableness is
still review. We may not properly defer to an unreasonable
sentencing decision. Unless and until Congress returns sen-
tencing to what it used to be before the guidelines, a totally
unreviewable discretionary trial court decision, we are sup-
posed to assure that sentences are reasonable.
The primary justification for the strikingly lenient sentence
was the post-traumatic self-medication by shopping theory
that Dr. Counter articulated. Under the guidelines manual the
district court used for sentencing, “mental and emotional con-
ditions are not ordinarily relevant” to departures10 where the
defendant does not suffer from “significantly reduced mental
capacity,”11 though a mental or emotional condition may jus-
tify departure if present to such an “unusual degree” to distin-
guish the case from “ ‘heartland’ cases.”12 Because
Menyweather’s sentence flies in the face of all the other sen-
10
U.S.S.G. § 5H1.3 (2000).
11
U.S.S.G. § 5K2.13 (2000).
12
U.S.S.G. § 5K2.0 (2000); United States v. Cantu, 13 F.3d 1506 (9th
Cir. 1993).
UNITED STATES v. MENYWEATHER 16507
tencing considerations the statute imposes, it can be justified
on this ground only if the ground is strong indeed. It is not.
First, the departure suffers from the same defect that led us
to vacate the sentence because of the “post-conviction rehabil-
itation” justification the district court had previously men-
tioned, that the district court never gave the government a fair
chance to oppose it. The court refused to allow the govern-
ment to have its own psychiatrist evaluate Menyweather
(because the judge repeatedly refused to allow the govern-
ment to obtain its own psychiatric examination, I am non-
plussed by the majority opinion’s attack on the government
for failing to “offer any expert psychological testimony of its
own.”). Second, the evidence for Dr. Counter’s opinion was
little more than speculation about how the defendant must
have felt considering that her father had abandoned the family
when she was little and her fiancee had been murdered.
Menyweather never got psychiatric treatment for her traumas.
Dr. Counter saw her for at most 3-1/2 hours, at a time when
Menyweather had just been traumatized by getting fired and
arrested, so that most recent trauma doubtless affected her
emotionally when Dr. Counter evaluated her. The only indi-
vidual who needed and obtained counseling, so far as the
record shows, was Menyweather’s victim, the travel agent,
whose mental (and financial) condition the district court and
prosecutor ignored. Third, Menyweather’s educational and
vocational success subsequent to the traumas — a college
degree and considerable vocational success for eight years —
was inconsistent with the theory that she was too disabled to
function normally by these traumas.
The other rationale for letting Menyweather go with 40
days of weekend time was that she was a single mother whose
child would live with relatives in a bad neighborhood, instead
of the gated community and private school Menyweather pro-
vided, if Menyweather went to prison. It is hard to see how
Menyweather could continue to provide this superior standard
of living after getting fired for stealing. The district judge
16508 UNITED STATES v. MENYWEATHER
repeatedly denied the government’s motion to investigate the
child care situation, thereby preventing the record from being
further developed. The guidelines advise that “family ties and
responsibilities” are not ordinarily relevant to departures,13
though like mental health they can be in extraordinary cases.14
We,15 like other circuits,16 have held that family circumstances
should ordinarily be considered only when extraordinary
harm to family dependents exceeds the normal disruption
caused by imprisonment. But there is nothing “extraordinary”
or “unusual” as those terms are used in the sentencing guide-
lines about single mothers. Nor is there anything extraordi-
nary or the slightest bit unusual about a criminal’s family
suffering from loss of companionship and lowered income
when the criminal is caught and sent to prison. Indeed, peo-
ples’s concern about avoiding this harm to their families is
among the most important deterrents to crime.
Nor is it clear that Menyweather’s influence on her daugh-
ter is superior to the moral training her nearby relatives would
provide, because, though poorer, they have not stolen
$435,000. Being richer is not the same thing as being better.
Since Menyweather has traveled all over the world without
taking her daughter along, leaving her instead in the care of
others, the record does not support a determination that she
cannot travel for a time to prison without taking her daughter
13
U.S.S.G. § 5H1.6 (2000).
14
U.S.S.G. § 5K2.0, cmt.
15
United States v. Berlier, 948 F.2d 1093, 1096 (9th Cir. 1991), over-
ruled on other grounds in United States v. Aguirre, 214 F.3d 1122 (9th
Cir. 2000).
16
United States v. Chestna, 962 F.2d 103 (1st Cir. 1992) (the fact that
defendant was single and had four small children was not “an unusual
family circumstance.”); United States v. Mogel, 956 F.2d 1555 (11th Cir.
1992) (single mother of two minor children was not entitled to a down-
ward departure for extraordinary family circumstances); United States v.
Headley, 923 F.2d 1079, 1083 (3d Cir. 1991) (“the imprisonment of a sin-
gle parent was not extraordinary,” even where the woman had five minor
children).
UNITED STATES v. MENYWEATHER 16509
along. There are a lot of single mothers. No class of persons
can be immunized from imprisonment without assisting
recruitment for criminal enterprises by providing an
incarceration-proof labor force.
That leaves us with the last and most important of the statu-
tory criteria emphasized by Booker, whether the 40 days to be
served on weekends “provide[s] just punishment.”17 Where is
the justice in Menyweather avoiding prison and getting 40
days to serve on weekends for stealing $435,000, when others
steal a VCR and face 25-years to life in prison?18 Does draw-
ing a district judge whose sentencing philosophy is idiosyn-
cratic make so idiosyncratic a sentence “just”? An excessively
lenient sentence like this causes cynicism, not only among
people in prison, where the luck-of-the-draw sentencing inter-
feres with rehabilitation, but among the law-abiding public.
People have second thoughts about doing the right thing when
those who do the wrong thing prosper and avoid punishment.19
Injustice is corrosive.
Some people think defendants who have themselves suf-
fered misfortunes should not go to prison, or defendants who
commit nonviolent crimes, or women, or mothers, or single
mothers. But none of these theories has been adopted by Con-
gress or by the sentencing guidelines. I am able to explain,
really explain, what the district judge has insisted on doing in
the face of repeated remands only on the basis of some
rejected theory such as this.
Some judges, such as the district judge in this case,20 are
17
United States v. Booker, 125 S. Ct. 738, 744 (2005).
18
Ramirez v. R.A. Castro, 365 F.3d 755 (9th Cir. 2004); See, also, Lock-
yer v. Andrade, 538 U.S. 63 (2003) (upholding a 25 year to life sentence
under California three strikes law when the third offense was shoplifting
items worth less than $100).
19
Cf. Jeremiah 12:1-2.
20
See, e.g., United States v. Sears, Roebuck & Company, Inc., 785 F.2d
777 (9th Cir. 1986) (remanding case to a new judge after the judge repeat-
16510 UNITED STATES v. MENYWEATHER
known for strongly held views. And there was strong resis-
tance among some district judges, particularly those with long
pre-guidelines experience, to the restrictions on their sentenc-
ing discretion when the guidelines came into force eighteen
years ago. Now that the guidelines have been reduced from
mandatory to advisory status, our review authority may be
more rather than less important than it was before, to prevent
idiosyncracy from altogether overtaking sentencing consis-
tency. A sentence like the one in this case is just the sort of
red flag that makes legislators wonder whether the courts
need mandatory minimum sentences to assure protection of
the public. The sentence in this case, imposed the third time
after two remands, should be vacated again and the district
court should be instructed to assign the case to another judge.21
edly dismissed an indictment even after the case was remanded to him by
the Court of Appeals with direction that the indictment be reinstated);
United National Insurance v. R & D Latex Corp., 141 F.3d 916 (9th Cir.
1998) (remanding to a different judge after the judge twice granted sum-
mary judgment without articulating reasons); cf. In re Complaint of Judi-
cial Misconduct, 425 F.3d 1179 (9th Cir. 2005).
21
U.S. v. Atondo-Santos, 385 F.3d 1199 (9th Cir. 2004) (remanding with
instruction that the case be assigned to a different judge, pursuant to the
Court’s supervisory power under 28 U.S.C. § 2106, after two remands and
stating, “[i]n light of the history of this case and our previous remands, it
is clear that the district court would have substantial difficulty in putting
out of its mind its repeated, previously-expressed views that a 66 month
sentence is appropriate in this case.”).