1

The Honorable Michael J. Davis, United States District Court Judge for the

District of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-3844

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United States of America, *

*

 Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Chaim Isaac Spero, *

*

 Appellee. *

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Submitted: June 15, 2004

Filed: September 2, 2004

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Before MURPHY, HEANEY, and BRIGHT, Circuit Judges.

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HEANEY, Circuit Judge.

Chaim Isaac Spero pleaded guilty to bank fraud, in violation of 18 U.S.C. §

1344, and was sentenced to five years probation, six months community confinement,

and six months home detention. Spero’s sentence reflects the district court’s1

 grant

of an eight-level downward departure, from which the government now appeals. We

affirm.
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BACKGROUND

In September of 2001, Spero began writing bad checks from two accounts at

different banks. The banks uncovered Spero’s actions about six months later, at

which time Spero agreed to restore the stolen funds. On June 9, 2003, the

government charged Spero with bank fraud stemming from Spero’s earlier checkkiting activities. He pleaded guilty shortly thereafter and was sentenced on

October 21, 2003.

The district court sentenced Spero after departing downward by eight levels

pursuant to its authority under United States Sentencing Guideline § 5K2.0, reducing

Spero’s total offense level from thirteen to five. The court identified several grounds

supporting its departure: Spero’s extraordinary efforts at restitution, his extraordinary

family circumstances, and the combination of these two factors. On appeal, the

government argues that none of the reasons articulated by the district court is

sufficient to sustain its downward departure.

ANALYSIS

The PROTECT Act directs us to conduct a de novo review to determine

whether the facts of the case justify a downward departure. United States v. Hutman,

339 F.3d 773, 775 (8th Cir. 2003). The district court’s findings of fact, however, are

reviewed for clear error. United States v. Willey, 350 F.3d 736, 738 (8th Cir. 2003).

Exceptional family circumstances, while ordinarily not relevant for guideline

purposes, see USSG § 5H1.6, p.s., can form the basis for a downward departure if

they are deemed exceptional, USSG § 5K2.0; United States v. Haversat, 22 F.3d 790,

797 (8th Cir. 1994).

After reviewing the record, we agree with the district court that Spero’s family

circumstances qualify as exceptional and therefore warrant granting him a downward
2

Ari is also referred to as Aaron in some of the court documents. We refer to

him as Ari throughout this opinion.

3

Autism is defined as “[a] mental disorder characterized by severely abnormal

development of social interaction and verbal and nonverbal communication skills.

Affected individuals may adhere to inflexible, nonfunctional rituals or routine. They

may become upset with even trivial changes in their environment.” PDR Medical

Dictionary 171 (2d ed. 2000).

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departure. Spero is married and has four children, ranging in age from ten to two.

One of his children, Ari,2

 suffers from a variety of developmental disorders. He has

been diagnosed with Pervasive Developmental Disorder, mild retardation, Attention

Deficit Hyperactive Disorder, obesity, and macrocephaly. His Pervasive

Developmental Disorder is described by his doctor, Dr. Reaney, as an autistic

spectrum disorder,3

 and manifests itself through the following mannerisms:

“hyperactivity, impulsivity, behavioral rigidity, oppositionality, auditory sensitivity,

compulsive eating, social skills difficulty, and sleep onset difficulty.” (R. at 64.)

The type of care Ari requires is intense and hands-on. Spero’s wife stays at

home with Ari and cares for him while Spero is at work. Mrs. Spero identified

Spero’s involvement with Ari as a “very important part of [Ari’s] home life.” (R. at

72.) Specifically, Spero’s nighttime routine with his son is a key component of Ari’s

care. Mrs. Spero indicates that “the slightest change in [Ari’s] daily routine can cause

him to become extremely upset and violent.” (Id.) 

Dr. Reaney’s medical assessment of Ari buttresses Mrs. Spero’s account of the

child’s needs. Dr. Reaney described Ari as “very attached and close to his father.”

(R. at 73.) He noted that Spero is a very active parent, accompanies Ari out in the

community, and is responsible for Ari’s bedtime routines. In Dr. Reaney’s

professional opinion, removing Spero from the house would be “detrimental to Ari.”

(Id.) According to the doctor, Ari’s “optimum development” can only be ensured if
4

Because we have determined that Spero’s exceptional family circumstances

provide a basis for the district court’s downward departure, we need not examine the

district court’s additional reasons for granting the departure. 

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Spero is able to maintain his current level of involvement in Ari’s life. (Id.) Both Dr.

Reaney and Mrs. Spero stress that consistency is important to Ari’s well-being.

We agree with the district court that Spero’s role in Ari’s life is indispensable

because having a routine is invaluable to Ari’s further development – this conclusion

is supported by the medical evidence provided by his doctors, as well as by the firsthand observations from his mother. We are convinced that a long-term departure of

Spero from his son’s life would cause an extreme setback for Ari and the rest of the

family. When one parent is critical to a child’s well-being, as in this case, that

qualifies as an exceptional circumstance justifying a downward departure. See

Haversat, 22 F.3d at 797 (finding exceptional family circumstances existed when the

defendant was considered an “irreplaceable” part of his wife’s treatment); United

States v. Sclamo, 997 F.2d 970, 972-74 (1st Cir. 1993) (finding the defendant’s

relationship with his developmentally challenged stepson to be critical to the child’s

development, and therefore warranting a downward departure due to exceptional

family circumstances). 

CONCLUSION 

We agree with the district court that Spero’s exceptional family circumstances

distinguish his case from the heartland of cases.4

 Accordingly, we affirm.

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