further downward departure for acceptance of responsibility requires a defendant to "demonstrate a degree of acceptance of responsibility that is substantially in excess of that ordinarily present." United States v. Lieberman, 971 F.2d 989, 996 (3d Cir. 1992).
The Third Circuit, however, has held that a defendant's post-arrest rehabilitative efforts, although commendable, do not demonstrate such an acceptance of responsibility that is substantially greater than that ordinarily present. United States v. Pharr, 916 F.2d 129, 131 (3d Cir. 1990), cert. denied, 500 U.S. 959, 114 L. Ed. 2d 725, 111 S. Ct. 2274 (1991). In so holding, the court noted that "in authorizing the Federal Sentencing Guidelines, Congress shifted toward a system of penology that imposes fair punishment away from a system that attempts to rehabilitate the individual." Id. at 132.
Although Mr. Artim's post-arrest attempt at self-rehabilitation through therapy is commendable, I do not find that this effort demonstrates an acceptance of responsibility warranting a downward departure from the Guideline range beyond the two-level reduction prescribed in § 3E1.1.
B. Family and Community Ties and Responsibilities
Defendant also seeks a downward departure based upon his family and community ties and responsibilities. Although the Guidelines provide that "family ties and responsibilities are not ordinarily relevant in determining whether a sentence should be outside the applicable range," see Guidelines § 5H1.6, such factors may be considered in an extraordinary case.
Defendant contends that his case in one in which his family and community will suffer in a truly extraordinary manner should he be incarcerated. Defendant asserts that, not only does he provide financial support for his family, he also provides emotional support for them as well. He maintains that were he to be incarcerated, his son's recovery from drug problems and reintegration into the community after incarceration would be interrupted, his daughter's college education would likely end or be interrupted, his elderly mother and mother-in-law would be deprived of his financial and emotional support and daily assistance, and his young grandson would be deprived of his affections. Defendant also asserts that his already faltering business would collapse were he to be incarcerated.
Although the Court recognizes that Mr. Artim's family and his employees would surely suffer as a result of his incarceration, "many defendants shoulder responsibilities to their families, their employers, and their communities. Disruptions of the defendant's life and the concomitant difficulties for those who depend on the defendant, are inherent in the punishment of incarceration." United States v. Gaskill, 991 F.2d 82, 85 (3d Cir. 1993)(citing United States v. Johnson, 964 F.2d 124, 127 (2d Cir. 1992)). As noted by the Third Circuit, "disintegration of family life in most cases in not enough to warrant departures." Id.
The circumstances surrounding Mr. Artim's family and community are in sharp contrast to the circumstances in those cases cited by the Defendant where a downward departure was granted based upon family and community ties and responsibilities. For example, in Gaskill, the court found that the defendant's family ties were so exceptional as to warrant a downward departure from the Guidelines. In that case, the evidence reflected that the defendant's wife suffered from a serious mental illness, manifested by reduced verbal communication and vocabulary, bouts of depression, attempted suicide, and erratic and compulsive behavior. She spent over sixteen hours a day in bed and relied solely upon the defendant to administer her medication which was necessary to control flare-ups of her condition. 991 F.2d at 84. Based upon the evidence presented to this Court, the Artim family's reliance upon the Defendant does not approximate that of the defendant's wife in Gaskill.
Defendant also cites United States v. Monaco, 23 F.3d 793, 801 (3d Cir. 1994), in support of a downward departure based upon family ties. In that case, the defendant was indicted along with his son for their involvement in a fraudulent billing scheme. The defendant pled guilty to conspiracy. The district court granted a downward departure based, in part, on the "mental anguish [the defendant] felt at seeing his son, otherwise a law-abiding citizen with an excellent future, convicted of a crime because of his father's fraudulent scheme." Id. The Third Circuit affirmed, finding that a departure on this basis was proper "in the unusual facts and circumstances of this extraordinary case." Id. at 801. The circumstances warranting downward departure in Monaco, therefore, did not relate to the effect of a defendant's incarceration on his family and community, but instead focused on the defendant's own anguish in involving his son in his own criminality.
Mr. Artim's family ties and responsibilities are not so great as in cases where a defendant is a single parent who is the sole caretaker for young children. Even in such cases, however, courts have repeatedly found those circumstances not to be extraordinary. See United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991)("every court to consider the issue of departure based on the effect that sentencing a single parent to prison will have on minor children has found the circumstances not to be extraordinary"); United States v. Goff, 907 F.2d 1441, 1446 (4th Cir. 1990)("[defendant] has shown nothing more than that which innumerable defendants could no doubt establish: namely, that the imposition of prison sentences normally disrupts . . . parental relationships").
In this case, although the Defendant's family life will surely be disrupted by a period of incarceration, I conclude that a downward departure based upon Mr. Artim's family ties and relationships is not warranted as his family ties and relationships are not of such a nature or magnitude as to render them "exceptional."
Nor do I find that a downward departure is warranted because of the effect a period of incarceration will have on the Defendant's faltering business. In United States v. Sharapan, 13 F.3d 781 (3d Cir. 1994), the Third Circuit held that the district court erred in granting a downward departure based upon its determination that the defendant's incarceration would cause the defendant's business would fail. In so holding, the court stated that there was nothing extraordinary in the fact that the defendant's incarceration might "cause harm to the business and its employees," and that, even if the business would fail as a result of the incarceration, there was "no basis for concluding that this failure would cause any extraordinary harm to society as a whole." Id. at 785. See also United States v. Reilly, 33 F.3d 1396 (3d Cir. 1994)("we see nothing extraordinary in the fact that [the Defendant's] conviction may harm not only his business interests but also those of his family members"). Accordingly, I find that the potential harm to Mr. Artim's business caused by his incarceration does not warrant a downward departure from the Guidelines.
C. Totality of Factors
Finally, Defendant argues that, even if no one factor is sufficient to warrant departure, these factors, when viewed in combination with one another, justify a downward departure. The Commentary to § 5K2.0 of the Guidelines provides that:
The Commission does not foreclose the possibility of an extraordinary case that, because of a combination of such characteristics or circumstances, differs significantly from the "heartland" cases covered by the guidelines in a way that is important to the statutory purposes of sentencing, even though none of the characteristics or circumstances individually distinguishes the case. However, the Commission believes that such cases will be extremely rare.
I find that the various factors on which the Defendant relies to support his motion for downward departure, when viewed alone, or in combination with one another, are insufficient to render this case one of those rare, exceptional cases where departure is warranted. Accordingly, Defendant's motion for downward departure will be denied.
Dated: November 1, 1996
STEPHEN M. ORLOFSKY
United States District Judge