The opinion of the court was delivered by: Orlofsky, District Judge
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.
II. 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 months.
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 Compulsive Gambling Center and a Certified Clinical Mental Health Counselor. The Government opposed Checoura's motion.
On September 23, 2001, Checoura appeared for her sentencing hearing. At the hearing, Lorenz testified on behalf of Checoura, and was also cross-examined by the Government. At the conclusion of the hearing, I took the Motion for a Downward Departure under advisement, directing Checoura and the Government to provide supplemental briefing on the question whether, in light of Dr. Lorenz's testimony, Checoura should be granted a downward departure.
The essence of Dr. Lorenz's testimony was that Checoura is afflicted with a serious pathological gambling disorder which, when active, drives her to do anything possible to obtain money to indulge her gambling habit. The disorder, Dr. Lorenz testified, is probably a product of Checoura's severe depression and post-traumatic stress disorder, an attempt by her mind to block out a troubled past that includes multiple major illnesses, sexual molestation, and emotional and physical abuse by a spouse whose beatings nearly killed or paralyzed her. Tr. 24-29. At the peak of her gambling activities, Checoura was wagering more than $100,000 per month. PSR ¶ 19. In Dr. Lorenz's opinion, it was the need to subsidize her vast betting losses that "directly and substantially" led Checora to begin stealing money from her employers. Tr. Exh. D-2 at 1.
A. This Court Has the Power to Depart Downward Pursuant to Section 5K2.13
Departures for diminished mental capacity are encouraged by the Sentencing Guidelines. There is no serious doubt that failures of will, as well as of understanding, are embraced by § 5K2.13. See U.S.S.G. § 5K2.13, comment. (n.1) (2000); United States v. McBroom, 124 F.3d 533, 546 (3d Cir. 1997). I must at least pause, however, to consider whether my authority to depart downward based on diminished capacity requires a "direct" causal connection between the disorder and the criminal conduct at issue. In other words, can a defendant who ...