Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

UNITED STATES v. ARTIM

November 1, 1996

UNITED STATES OF AMERICA
v.
REED ARTIM



The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 On October 25, 1995, Defendant, Reed Artim, was arrested and charged with the receipt of child pornography, in violation of 18 U.S.C. § 2252(a). On April 26, 1996, pursuant to a written plea agreement with the Government, Mr. Artim entered a plea of guilty to a one count Information charging the same offense.

 Contained in the plea agreement are the following stipulations between the Defendant and the Government: (1) The base offense level is 15; see U.S.S.G. ("Guidelines") § 2G2.2; *fn1" (2) because the material received by the Defendant did not involve a minor under the age of twelve, a two level increase in base offense level is not appropriate; see Guidelines § 2G2.2(b)(1); and (3) because the Defendant has demonstrated a recognition and affirmative acceptance of responsibility for the offense, a downward adjustment of two levels for acceptance of responsibility is appropriate. See Guidelines § 3E1.1(a). Thus, the parties agree that the base offense level for Mr. Artim's offense is 13.

 The applicable guideline incarceration range for a level-13 offense is 12 to 18 months. See Guidelines, Ch.5, Part A. Although neither party disputes the applicable guideline range, Defendant has filed a motion for a downward departure from the applicable guideline range of 12 to 18 months to a non-custodial sentence. For the reasons that follow, this Court will deny Defendant's motion for downward departure.

 I. Discussion

 Section 3553(b) of Title 18 permits a sentencing judge to depart from the ranges established by the Sentencing Guidelines when the judge finds "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. See Koon v. United States, 135 L. Ed. 2d 392, 116 S. Ct. 2035, 2044 (1996); United States v. Gaskill, 991 F.2d 82, 85 (3d Cir. 1993). In determining whether a circumstance was adequately taken into consideration by the Sentencing Commission, a sentencing judge must "consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission." 18 U.S.C. § 3553(b); Koon, 116 S. Ct. at 2044.

 The Guidelines provide assistance to a sentencing judge in determining whether to depart from the Guidelines by listing certain factors as either encouraged or discouraged bases for departure. Encouraged bases for departure include such circumstances as victim provocation, where downward departure is encouraged, and disruption of a governmental function, where upward departure is encouraged. See Guidelines §§ 5K2.10, 5K2.7; Koon, 116 S. Ct. at 2045.

 The Guidelines also include a number of discouraged bases for departure which are "not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline range." Koon, 116 S. Ct. at 2045 (citing Guidelines ch. 5, pt. H, intro. comment). Examples of discouraged factors include a defendant's education and vocational skills, see § 5H1.2; mental and emotional conditions, see § 5H1.3; employment record, see § 5H1.5; and family and community ties and responsibilities. See § 5H1.6. While the Guidelines do not provide that a sentencing judge may never depart based upon a discouraged factor, the Guidelines do state that such factors "should be relied upon only 'in exceptional cases.'" Koon, 116 S. Ct. at 2045 (citing Guidelines ch. 5, pt. H, intro. comment).

 Defendant contends that downward departure is warranted in this case essentially based upon two categories of factors: (a) mental and emotional conditions; and (b) family and community ties and responsibilities. As set forth above, the Guidelines discourage the use of either of these factors as a basis for departure, stating that they are "not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range." See § 5H1.3 (mental and emotional conditions); § 5H1.6 (family and community ties and responsibilities). Accordingly, this Court may depart from the applicable Guideline range "only if the factor 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, 116 S. Ct. at 2045.

 A. Mental and Emotional Conditions

 Defendant asserts that a downward departure is appropriate because his "extraordinary" mental and emotional condition makes him an atypical defendant in several ways. First, the Defendant contends that he suffers from an "extraordinary" mental and emotional condition brought about by the stress he sustained resulting from several traumatic events in his life. Next, the Defendant alleges that his mental and emotional condition is exceptional because he has committed no physical or sexual abuse of children. Third, the Defendant contends that his offense was a result of aberrant behavior. Finally, he maintains that his rehabilitative efforts render his mental and emotional condition extraordinary.

 (1) Traumatic Life Events

 The cases cited by the Defendant where a downward departure was permitted based upon the "extraordinary" mental and emotional condition of a defendant are clearly distinguishable. For example, in United States v. Lara, 905 F.2d 599, 603 (2d Cir. 1990), the Second Circuit affirmed the district court's downward departure from the Guidelines based upon the "extreme vulnerability" of the defendant to victimization in prison due to his "immature appearance" and "bisexual orientation." Id. In so holding, the Second Circuit concluded that "extreme vulnerability of criminal defendants is a factor that was not adequately considered by ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.