The opinion of the court was delivered by: Stephen M. Orlofsky, United States District Judge.
This matter having come before the Court on the Motion of Defendant,
Leticia A. Checoura, for a Downward Departure, pursuant to U.S.S.G.
§ 5K2.13, Richard Coughlin, Esq., Federal Public Defender, Lori M.
Koch, Esq., Assistant Federal Public Defender, appearing on behalf of
Defendant, Leticia A. Checoura, and Robert J. Cleary, Esq., United States
Attorney, Howard Wiener, Esq., Assistant United States Attorney,
appearing on behalf of the United States of America; and,
The Court having considered the papers submitted by counsel for
Defendant in support of the motion and the papers submitted by counsel
for the United States of America in opposition, as well as the
Presentence Report and the evidence presented at the sentencing hearing;
For the reasons stated in the Opinion filed concurrently with this
Order, IT IS, on this 7th day of December, 2001, hereby ORDERED that:
1. The Motion of Defendant, Leticia A. Checoura, for a Downward
Departure, pursuant to U.S.S.G. § 5K2.13 is GRANTED; and,
2. The Court shall depart downward two levels, to a Total Offense
Level of 18.
This case requires me to explore new territory created by a 1998
amendment to the United States Sentencing Guidelines encouraging downward
departures for significant impairment of a defendant's "volitional"
capacities — that is, his or her power to resist the temptation to
do wrong. On March 2, 2001, the Defendant, Leticia A. Checoura
("Checoura"), pled guilty to an information charging her with interstate
transportation of stolen property, in violation of 18 U.S.C. § 2314.
Checoura has now moved for a downward departure from the applicable
sentencing guideline range based on her diminished mental capacity.
Because I find that Checoura's compulsive gambling disorder significantly
impaired her ability to control her wrongful behavior, I will grant her
motion for a downward departure two levels and depart downward from a
Total Offense Level of 20 to 18. Thus, with a Criminal History Category
of I, I find the Sentencing Guideline range to be 27-33 months.
FACTS AND PROCEDURAL HISTORY
A. The Guidelines Calcuation
The Government's Information alleges, and Checoura agrees, that from
1993 through 1998, Checoura utilized her position as a bookkeeper for her
employer, S&S X-Ray Products, to divert over $4 million dollars from the
firm to her own personal use. The parties agree that the base offense
level is 4, and that, as the amount of loss is between $2.5 and $5
million, there is an upward adjustment of 15 levels. U.S.S.G. §
2B1.1(b)(1)(P). The parties also agree that two levels should be added
for more than minimal planning, pursuant to U.S.S.G. §
2B1.1(b)(4)(A). The Probation Office additionally recommended, and the
parties did not object to, another two-level adjustment for abuse of a
position of trust, pursuant to U.S.S.G. § 3B1.3. I agree that the
record at sentencing supports these recommendations. Checoura is also
entitled to a three-level downward adjustment for acceptance of
responsibility. See U.S.S.G. § 3E1.1(a), (b). Thus, the Total
Offense Level is 20. Thus, absent a downward departure, with a criminal
history category of I, Checoura's Sentencing Guideline range is 33-41
B. The Motion for A Downward Departure
In her plea agreement, Checoura preserved her right to argue to this
Court that her wrongdoing was at least in part the result of a diminished
mental capacity, such that she is eligible for a downward departure,
pursuant to U.S.S.G. § 5K2.13.*fn1 In support of her argument,
Checoura presented a written patient evaluation from Dr. Valerie C.
Lorenz, ("Lorenz" or "Dr. Lorenz"), the Executive Director of the