United States Court of Appeals

For the First Circuit

No. 02-1986

UNITED STATES OF AMERICA,

Appellant,

v.

JOSE MALDONADO-MONTALVO,

Defendant, Appellee.

 

No. 02-2002

UNITED STATES OF AMERICA,

Appellant,

v.

WILFREDO PICON-RIVERA,

Defendant, Appellee.

 

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

[Hon. Héctor M. Laffitte, U.S. District Judge]

 

Before

Lynch, Circuit Judge,

Cyr and Stahl, Senior Circuit Judges.
 

Robert D. McCallum, Jr., Assistant Attorney General, H.S.

Garcia, United States Attorney, Douglas N. Letter, Attorney,

Appellate Staff, and Matthew M. Collette, Attorney, Appellate

Staff, on brief for appellant.

Raymond L. Sanchez Maceira on brief for appellees.

 

December 22, 2003

 
1As the government elected to try Maldonado and Picon

separately, each was sentenced by a different district judge.

Since the facts in both cases are virtually identical, however, we

consolidated the two government appeals. Further, the two

sentencing judges employed virtually identical language in

substantiating their “multiple causation” departures, and so for

the sake of simplicity and convenience we quote exclusively from

the sentencing transcript in the Picon case.

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CYR, Senior Circuit Judge. After appellants Jose

Maldonado-Montalvo and Wilfredo Picon-Rivera were convicted of

introducing adulterated milk into interstate commerce, the district

court departed downward from their respective guideline sentencing

ranges on the ground that much of the loss occasioned their victims

was due to factors other than the wrongful conduct of the

defendants.1 In sentencing Picon, the district court granted a

further downward departure on the ground that he suffers from

depression. The government appeals and we once again vacate the

erroneous departure rulings made by the district court.

I

BACKGROUND

For approximately four years — between 1993 and 1997

— Maldonado and Picon, licensed commercial dairy farmers,

adulterated the milk which they sold to a nearby milk-processing

plant by adding salt and water. The salt served to increase the

weight of the water which was added, thereby effectively disguising

the dilution. Moreover, the defendants "bought off" the truck

drivers employed by the milk processor, in order to entice them to
2Earlier, the district court had sentenced these defendants on

the premise that their respective offense levels should be 12,

because they should only be held accountable for the contaminated

milk delivered to the processing plant, rather than the total

volume of milk in the silos contaminated by their adulterated milk.

Those sentences were summarily vacated, then remanded for

resentencing in light of United States v. Gonzalez-Alvarez, 277

F.3d 73, 78-79 (1st Cir. 2002) (holding that the total intended

loss includes the entire silo contents).

3The district court departed downward from offense level 18 to

level 12 in sentencing Picon, and from offense level 17 to 12 in

sentencing Maldonado, thereby effectively reinstating their

respective pre-remand sentences. See supra note 2.

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falsify their on-site quality test reports relating to the

adulterated milk. Thus, at the plant the processor unwittingly

mixed the milk which had been adulterated by the defendants with

other regional milk supplies. As a consequence, the defendants

received the Grade A milk price for their adulterated product. 

Following their indictment, the defendants entered guilty

pleas to the charge of delivering adulterated milk into interstate

commerce, a felony. See 21 U.S.C. §§ 331(a), 333(a)(2). At

sentencing,2 the district court determined that each defendant was

entitled to a downward departure due to the fact — as the district

court found — that the loss calculation under U.S.S.G. § 2F1.1

(viz., which included all contaminated milk in the processor’s

silos) overstated the amount of loss attributable to their wrongful

conduct. See U.S.S.G. § 2F1.1. Finally, the district court

pointed to Picon’s mental condition as a further basis for its

downward departure. See U.S.S.G. § 5H1.3.3
4The defendants originally filed no appellate briefs. In the

interests of justice, we directed that counsel be appointed to

represent them on appeal. 

5Section 3553(a)(2) states: 

The court shall impose a sentence sufficient, but not

greater than necessary, to comply with the purposes set

forth in paragraph (2) of this subsection. The court, in

determining the particular sentence to be imposed, shall

consider . . . the need for the sentence imposed – (A) to

reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for

the offense; (B) to afford adequate deterrence to

criminal conduct; (C) to protect the public from further

crimes of the defendant; and (D) to provide the defendant

with needed educational or vocational training, medical

care, or other correctional treatment in the most

effective manner.

 18 U.S.C. § 3553(a)(2).

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On appeal, the government once again seeks to set aside

the downward departure rulings made by the district court.4 We now

reverse and remand for resentencing, before a different judge, in

accordance with this opinion and the accompanying order. See

United States v. Muniz, 49 F.3d 36, 43 (1st Cir. 1995).

II

DISCUSSION

A departure ruling under the Sentencing Guidelines is

reviewed de novo to determine whether it was based upon a factor

that “(i) does not advance the objectives set forth in [18 U.S.C.]

section 3553(a)(2);5 or (ii) is not authorized under section
6Section 3553(b) provides, in pertinent part:

[T]he court shall impose a sentence of the kind, and

within the range, referred to in subsection (a)(4) [viz.,

the sentences as prescribed in the Guidelines] unless the

court finds that there exists 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 that should

result in a sentence different from that described. In

determining whether a circumstance was adequately taken

into consideration, the court shall consider only the

sentencing guidelines, policy statements, and official

commentary of the Sentencing Commission. In the absence

of an applicable sentencing guideline, the court shall

impose an appropriate sentence, having due regard for the

purposes set forth in subsection (a)(2). In the absence

of an applicable sentencing guideline in the case of an

offense other than a petty offense, the court shall also

have due regard for the relationship of the sentence

imposed to sentences prescribed by guidelines applicable

to similar offenses and offenders, and to the applicable

policy statements of the Sentencing Commission.

18 U.S.C. § 3553(b).

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3553(b);

6 or (iii) is not justified by the facts of the case[.]”

United States v. Frazier, 340 F.3d 5, 14 (1st Cir. 2003) (citation

omitted). 

A. The Downward Departure Based Upon "Multiple Causation"

In determining their respective sentences, the district

court appropriately attributed to each defendant the entire loss;

viz., the total value of all contaminated milk in the processor’s

silos. See U.S.S.G. § 2F1.1(b)(1); United States v. Reeder, 170

F.3d 93, 109 (1st Cir. 1999) ("‘[T]he victim loss table in U.S.S.G.

§ 2F1.1(b)(1) presumes that the defendant alone is responsible for
7Effective November 2001, the Sentencing Commission deleted §

2F1.1, which specifically dealt with fraud offenses, and merged its

provisions into § 2B1.1, which formerly dealt only with theft.

These defendants, however, were sentenced pursuant to the pre-2001

version of the Sentencing Guidelines.

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the entire amount of victim loss specified in the particular loss

range selected by the sentencing court.’") (citation omitted).7

The Guidelines nevertheless permit a downward departure where the

total loss calculation overstates the seriousness of the offense.

See U.S.S.G. § 2F1.1, comment (n.11) (noting that "[in] a few

instances, the loss determined under subsection (b)(1) may

overstate the seriousness of the offense"); cf. U.S.S.G. § 2F1.1,

comment. (n. 11) (1991) (noting that a "downward departure may be

warranted" where the "total dollar loss that results from the

offense may overstate its seriousness," which "typically occur[s]"

when the defendant's fraud "is not the sole cause of the loss").

Theoretically, such a loss overstatement may occur where, inter

alia, “[a]ny portion of the total loss sustained by the victim [is]

a consequence of factors extraneous to the defendant's criminal

conduct.” Reeder, 170 F.3d at 109 (emphasis added); see also

United States v. D’Andrea, 107 F.3d 949, 955-56 (1st Cir. 1997);

United States v. Shattuck, 961 F.2d 1012, 1016-17 (1st Cir. 1992).

As with any guideline departure, however, a “multiple causation”

departure is permitted only if these extraneous factors are “of a

kind, or [are present] to a degree, not adequately taken into

consideration by the Sentencing Commission in formulating the
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guidelines." 18 U.S.C. § 3553(b)(1); see supra note 6.

1. Economic Hardship

The district court in the instant case identified five

extraneous factors. First, it stated: 

[A]s the dairy industry is a profit-driven

entity, dairy farmers are assigned a monthly

milk quota that must be maintained or they

face the reality of negative financial

consequences, to include, reduction or

cancellation of the awarded quota. Less

production by the farmer results in less

profit for the processing plant, thus equates

to financial disaster for the farmer. As

such, caught in a bind to produce or face

financial ruin, the farmers took the best of

the bad options available.

The government in response aptly notes that a defendant's

personal financial difficulties, as well as economic duress upon a

defendant's trade or business, are explicitly prohibited as grounds

for departure under the Sentencing Guidelines. U.S.S.G. § 5K2.12

("The Commission considered the relevance of economic hardship and

determined that personal financial difficulties and economic

pressures upon a trade or business do not warrant a decrease in

sentence."); see Koon v. United States, 518 U.S. 81, 93 (1996);

United States v. Sachdev, 279 F.3d 25, 28 (1st Cir. 2002); United

States v. Perez, 160 F.3d 87, 89 (1st Cir. 1998) (en banc); United

States v. Rivera, 994 F.2d 942, 949 (1st Cir. 1993). “Forbidden

factors can never serve as the basis for a [guidelines] departure.”

United States v. Martin, 221 F.3d 52, 57 (1st Cir. 2000) (emphasis
8It is noteworthy that not even the defendants contend on

appeal that economic hardship constituted a valid ground for the

downward departure ordered by the district court.

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added).8

2. The Coconspirators’ Assistance

As the next basis for its “multiple causation” departure,

the district court opined: 

[T]he fraud was also significantly perpetuated

by the delivery [truck drivers] hired by the

processing plant as they were entrusted with

protecting the interests of the processing

plant, trained to test for the quality of the

milk product, and the authority to reject an

unacceptable product, and responsibility for

exposing farmers operating contrary to laws

regulating consumer products. In a calculated

and self-serving fashion, they recruited,

encouraged farmers, or were themselves lured

to engage in the adulteration of the milk to

assist the farmers in meeting their quota for

profit.

Assuming these district court statements contemplate that

the loss calculations were inflated, in that the defendants did not

commit the charged offenses alone but conspired with others to

achieve their unlawful goal, the Sentencing Guidelines explicitly

treat with any such factor. See 18 U.S.C. § 3553(b)(1). That is

to say, the district court must attribute to the defendants the

amounts of loss resulting from "all reasonably foreseeable acts and

omissions of others in furtherance of the jointly undertaken

criminal activity." U.S.S.G. § 1B1.3(a)(1)(B); see United States

v. Marino, 277 F.3d 11, 37 (1st Cir.), cert. denied, 536 U.S. 948
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(2002); United States v. Adeniji, 221 F.3d 1020, 1027 (7th Cir.

2000); United States v. Duliga, 204 F.3d 97, 100 (3d Cir. 2000).

It is patently clear that the defendants in the instant

case fit this description, in that they concededly paid cash to the

delivery truck drivers for aiding the concealment of their

adulterations. The defendants incorrectly contend that the record

demonstrates that the truckers sometimes acted independently of

them. In arguing against a more-than-minimal-planning enhancement

at the sentencing hearing, defense counsel merely observed that the

truck drivers could have loaded adulterated milk at the defendants’

farms without the need for the defendants’ physical presence, since

the truck drivers had ready access to the necessary equipment and

supplies. Defense counsel’s observation – which is unsupported by

the record, see United States v. Brassard, 212 F.3d 54, 57 (1st

Cir. 2000) (noting that counsel’s remarks do not themselves

constitute evidence), and which was raised merely to characterize

the modus operandi of the defendants’ conspiracy as rudimentary –

does not preclude a reasonable inference that the defendants who

were not physically present had prior knowledge of, or gave prior

consent to, the unsupervised loadings conducted by their

coconspirators.

The defendants further contend that the presentence

report (PSR) states that other unidentified farmers, neither known

to the defendants nor involved in their conspiracy, already had
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delivered contaminated milk to the plants, and thus were

exclusively responsible for at least a portion of the actual milk

loss. Quite the contrary, the PSR states simply that the milk in

the silos “may” have been contaminated by other farmers. The

record contains no evidence, however, that any other farmer in fact

delivered bad milk to the same silos or at the same times as the

defendants’ deliveries. See United States v. Sepulveda, 15 F.3d

1161, 1198-99 (1st Cir. 1993) (noting that sentencing findings must

derive from some identifiable evidentiary basis in record). In any

event, the defendants are not only responsible for the actual loss,

but for the intended loss, see United States v. Gonzalez-Alvarez,

277 F.3d 73, 80-81 (1st Cir. 2002) (noting that defendant is

responsible for intended loss if it exceeds actual loss), and it is

beyond serious dispute that these defendants intended and foresaw

that their adulterated milk would end up in the silos and

contaminate the entire contents, resulting in a total loss of all

those milk stocks. Accordingly, we conclude that the purported

conduct of the truck drivers, whether or not defendants’

coconspirators, cannot constitute a legitimate ground for a

“multiple causation” departure.

3. The Conduct of the Victim's Agents

The district court went on to identify the purported

complicity of the milk plant employees in the defendants’ milkadulteration scheme as a further factor providing support for its
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downward departure:

[I]t was business as usual at the processing

plant as it was well known who were the

truckers engaged in the adulteration of milk.

However, plant managers neglectfully turned

the other way, consciously failed their duty

and responsibility to expose the corrupt

truckers to their superiors or authorities,

and contributed to the lawful (sic) practice

by assuring that the profitable routes

involving farmers actively adulterating milk

were assigned to the corrupt truckers. It

would be incredulous (sic) that the

managerial/supervisory staff at the processing

plant was not aware or could not have been

aware of the unlawful adulteration process,

therefore, [it] significantly contributed to

the total loss through aiding and abetting.

A victim's conduct may warrant a downward departure where

the victim significantly contributed to an increase in the amount

of loss. See, e.g., United States v. Rostoff, 53 F.3d 398, 407 n.8

(1st Cir. 1995). Assuming, arguendo, that the same rule might

apply even though the defendants injured other victims who

concededly did not contribute to the loss (viz., milk consumers),

the evidentiary record in the instant case cannot meet such a

standard. First, there is no record support for the district

court’s supposition that the plant managers knew or should have

known of the adulteration perpetrated by the defendants, nor that

the plant managers acted either negligently or improperly. See

Sepulveda, 15 F.3d at 1198-99. But cf. Rostoff, 53 F.3d at 407 n.8

(noting that defrauded bank officials conducted themselves in

“incredibly negligent fashion” by approving fraudulent loans “with
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an abandon commonly associated with drunken sailors,” and routinely

violated official bank policies).

Moreover, these defendants "paid off" the truck drivers

for the very purpose of obtaining their assistance in disguising

their own adulteration of the milk upon its arrival at the plant.

Consequently, there is simply no record evidence that the

adulteration would have been patently obvious to any other

employees at the plant. Cf. U.S.S.G. § 2F1.1, comment. (n.11)

(providing that downward departure for inflated loss may be

warranted where “no one would seriously consider honoring” the

fraudulent instrument); United States v. LeRose, 219 F.3d 335,

338-39 (4th Cir. 2000) (noting lack of record evidence that bank’s

conduct affected amount of loss, or that negotiated instrument was

“obviously fraudulent”).

4. Sentencing Manipulation

As a fourth basis for its downward departure, the

district court concluded that the government contributed to the

amount of the loss:

The [FDA] agent also played a role in the

overall accumulation of loss as he decided

when enough information had been gathered to

initiate the prosecution of the defendant,

contributed to the actual adulteration of the

milk, and allowed the adulterated milk to

reach the silos at the processing plant. The

defendant was charged with eleven separate

acts of adulteration spanning a period of

approximately four years. As such, the number

of times the defendant was allowed to engage

in the adulteration process corresponds to the
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number of times the delivery truck was also

increasing the volume of adulterated milk.

Government manipulation designed solely to increase the

severity of a criminal sentence may afford a ground for departure,

provided there is sufficient record evidence to demonstrate that

the government acted in “bad faith.” See Gonzalez-Alvarez, 277

F.3d at 80-81 (noting that calculation of amount of intended loss

was based on defendant’s assumption that government would not

discover his adulteration). “Given the wide latitude we afford the

government in conducting sting operations, ‘the burden of showing

sentencing factor manipulation [necessarily] rests with the

defendant. As with other fact-sensitive sentencing issues, the

burden of proof must be carried by a preponderance of the

evidence.’" United States v. Rizzo, 121 F.3d 794, 801 (1st Cir.

1997) (citation omitted). "[G]arden variety manipulation claims

are largely a waste of time." United States v. Montoya, 62 F.3d 1,

4 (1st Cir. 1995). 

Since the record on appeal in the instant case fails to

suggest so much as a hint of bad faith on the part of the

government, the defendants have failed to sustain their burden of

proof, and the "factfinding" engaged in by the district court must

be set aside as plainly speculative and clearly erroneous. See

United States v. Gibbens, 25 F.3d 28, 30 (1st Cir. 1994).

5. Absence of Injury to Public Health

Finally, the district court opined that the record
9Furthermore, the relevant PSRs disclosed that (i) the

defendants used contaminated, unsanitary water to dilute their

milk; and (ii) the FDA reported that these additions “could have

caused the introduction of bacterial/viral organisms that are not

eliminated properly by the pasteurization process and resulted in

known and unknown health problems.” The defendants counter that an

official of ORIL, the Commonwealth’s milk regulatory agency, stated

that “the pasteurization process would have killed all harmful

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contained no evidence that the milk supplied by the defendants

adversely affected any consumer’s health:

[T]he commission of the offense did not result

in any actual financial loss or health

problems. The dairy industry has confirmed

that any potential health hazard would have

been neutralized and the below grade quality

of the milk would have been enhanced through

the treatment, processing, and commingling of

the adulterated milk in the silos. As such,

the product substitution caused by the

addition of non-harmful agents, that is water

and salt, would equate to the same guidelines

imprisonment range, absent an upward

departure, as that of a defendant who

introduced harmful agents to the final milk

product or defrauded the victim of an actual

$900,000.

On these identical facts, however, this court had already

held that (i) the same processor and the ultimate consumers of its

milk were all victims of the crimes committed by these defendants;

(ii) the ultimate consumers sustained actual financial loss, in

that the consumers paid Grade A milk prices for milk which was

adulterated and worthless as a matter of law; and (iii) the

defendants' supposition that the consumers sustained no injury to

their health by reason of the adulterated milk was insupportable.

Gonzalez-Alvarez, 277 F.3d at 80.9 The case at bar is factually
bacteria as required by federal regulations.” We agree with the

government’s contention that this statement does not contradict the

FDA statement on the futility of pasteurization. The ORIL

official, whose announced intention was merely to show that the

defendants’ milk was relatively uncontaminated, stated that

pasteurization of defendants’ milk would kill all bacteria in

unadulterated milk that government-mandated pasteurization is

expected to kill, whereas other bacteria or impurities might have

remained in appellees’ adulterated milk even after pasteurization,

which in turn would have reached the consumer who purchased the

non-Grade A milk. See 21 U.S.C. § 331(a) (prohibiting distribution

of any non-Grade A milk in interstate commerce).

10We note that the district court, upon remand following our

previous vacatur of these defendants’ sentences, see supra notes 2

& 3, once again departed downward to the same Sentencing Guidelines

ranges relied upon prior to our remand, and that both district

judges employed virtually identical language in rationalizing their

departures. Insofar as this course of action may connote the

district court's subjective dissatisfaction with the Guidelines’

sentencing constraints, it is manifestly unavailing. See United

States v. Studley, 907 F.2d 254, 260 (1st Cir. 1990) (“Regardless

of how well founded, a belief by the sentencing judge that the

punishment set by the Commission is too severe or that the

guidelines are too inflexible may not be judicial grounds for

departure under the sentencing system mandated by Congress.”)

(emphasis added).

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indistinguishable from Gonzalez-Alvarez.

Although certain factors relied upon by the district

court may be appropriate components of a “multiple causation”

departure in particular circumstances, the instant decision related

specifically to the evidence in this case. Thus, we simply hold

that whether evaluated individually or collectively, the five

factors identified by the district court in the instant case do not

constitute appropriate grounds for a downward departure.10

B. The Mental-Health Departure

The district court discerned an additional ground for its
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downward departure from the applicable guideline sentencing range

with respect to Picon:

Shortly after his initial arrest in connection

with the instant case, defendant Picon

developed mental health problems requiring

professional attention to include

pharmacology. His subsequent depressed

financial situation forced him to sell his

contract with the milk industry, cease

operations as a dairy farmer, file for

bankruptcy, and maintain odd jobs resulting in

meager wages all of which contributed to

exacerbating his mental health condition.

Prolonged incarceration would worsen the

defendant’s mental health condition and result

in greater costs to the United States. The

Court understands that all defendants

initially suffer from emotional problems at

the time of their arrests or during the

commencement of the prosecutorial process, but

most are able to overcome the condition.

However, in the case of Mr. Picon, that is the

defendant, he has not been able to do so.

Pursuant to his therapist, defendant’s

prognosis is guarded. I have examined the

therapist’s evaluation submitted to the court.

The government contends on appeal that the district court

abused its discretion in relying upon Picon’s mental-health

condition as a ground for its downward departure, because it failed

to make the requisite express finding that the Bureau of Prisons is

unable to provide Picon with adequate treatment for his condition.

The Sentencing Guidelines provide:

Mental and emotional conditions are not

ordinarily relevant in determining whether a

sentence should be outside the applicable

guideline range, except as provided in Chapter

Five, Part K, Subpart 2 (Other Grounds for

Departure). Mental and emotional conditions

may be relevant in determining the conditions
11Picon has never contended that his pre-existing depression

played any role in the commission of the underlying offense. See

U.S.S.G. § 5K2.13 (1997) (“If the defendant committed a non-violent

offense while suffering from significantly reduced mental capacity

not resulting from voluntary use of drugs or other intoxicants, a

lower sentence may be warranted to reflect the extent to which

reduced mental capacity contributed to the commission of the

offense, provided that the defendant's criminal history does not

indicate a need for incarceration to protect the public.”).

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of probation or supervised release; e.g.,

participation in a mental health program (see

§§ 5B1.3(d)(5) and 5D1.3(d)(5)).

U.S.S.G. § 5H1.3.11 Nevertheless, departures based upon a

defendant’s mental condition are discouraged, see United States v.

Aker, 181 F.3d 167, 173 (1st Cir. 1999); see also Rivera, 994 F.2d

at 948, which means that the sentencing court must first make a

finding that the mental condition is extraordinary or atypical, see

Koon, 518 U.S. at 94-95; United States v. Rivera, 192 F.3d 81, 85

(2d Cir. 1999); United States v. Pullen, 89 F.3d 368, 371 (7th Cir.

1996). 

The government’s reliance upon United States v. Studley,

907 F.2d 254 (1st Cir. 1990), is misplaced. The narrow issue in

Studley was whether the sentencing court should depart downward in

the event that the Bureau of Prisons were not equipped to treat the

defendant’s mental condition. Id. at 259. Whenever the

sentencing court intends to depart downward under U.S.S.G. § 5H1.3,

however, it must first determine that the defendant’s mental

condition presents an “extraordinary” or “atypical” case. See

United States v. Doering, 909 F.2d 392, 394-95 (9th Cir. 1990)
12In June 1999, the symptoms included sadness, generalized

anxiety, poor motivation, indifference, memory loss, poor attention

span, and psycho-motor retardation.

13Picon successfully engaged in a prolonged legal battle with

his ex-wife to retain visitation rights with his seven-year-old

daughter.

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(holding that defendant’s need for treatment, standing alone, is

not an adequate ground for departure); see also United States v.

Moses, 106 F.3d 1273, 1280 (6th Cir. 1997) (same). Although the

unavailability of an adequate prison-treatment program could

conceivably give rise to an "extraordinary" case, that is not a

sine qua non for a U.S.S.G. § 5H1.3 departure. Thus, for example,

a sentencing court might determine that a defendant’s mental

condition is such that a lengthy imprisonment would work

irreparable harm, thereby rendering irrelevant the availability vel

non of prison-treatment programs.

Turning to this threshold issue, and bearing in mind that

departures under U.S.S.G. § 5H1.3 are discouraged, our own

examination of the medical evaluation relating to Picon’s mental

condition clearly reveals that the district court erred in

determining that Picon’s mental condition is extraordinary. Dr.

Cesar Padilla Maldonado, Picon's psychiatrist, opined that the

indictment had caused Picon major or severe depression,12 which

resulted in business failures and family rifts.13 Importantly,

however, Dr. Maldonado acknowledged that once placed on antidepressant and anti-anxiety medications, Picon had shown marked
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improvement. See United States v. Peterson, 225 F.3d 1167, 1171

(10th Cir. 2000) (noting that defendant’s treatment for depression

and anxiety not “unusual”); see also U.S. Dep’t of Health and Human

Servs. Substance Abuse and Mental Health Servs. Admin., Nat’l

Mental Health Info. Ctr., Bulletin Vol. 3, No.2 (2003), available

at http://www.mentalhealth.samhsa.gov/default.asp (reporting that

depression affects almost one in ten American adults); Nat’l Inst.

of Health, Depression Research Fact Sheet (Apr. 2, 2002), available

at http://www.nimh.nih.gov/publicat/depresfact.cfm (“Depressive

disorders affect approximately 19 million American adults.”).

Moreover, Picon consistently has denied suicidal

ideation. Cf. United States v. Harpst, 949 F.2d 860, 863 (6th

1991) (rejecting downward “mental health” departures based on

defendant’s suicidal tendencies). Nor has he ever been diagnosed

with any extreme form of mental disease, such as psychosis or

schizophrenia. Cf. United States v. Barton, 76 F.3d 499, 502 (2d

Cir. 1996) (vacating § 5H1.3 departure absent evidence defendant

suffered from psychosis, where defendant’s sense of morality

remained intact, and “[h]e appreciate[d] both the societal and

moral constraints of his behavior”); United States v. Lauzon, 938

F.2d 326, 333 (1st Cir. 1991) (noting that defendant’s “borderline

intelligence” was not ground for § 5H1.3 departure). Although Dr.

Maldonado opined that a three-year term of imprisonment would be a

“catastrophic blow” to Picon, nothing in the record on appeal
14The district court’s statement that Picon’s “[p]rolonged

incarceration would . . . result in greater costs to the United

States” is also an inappropriate basis for its departure decision.

See United States v. Maldonado, 242 F.3d 1, 4-5 (1st Cir. 2001)

(noting that costs of incarceration normally are not grounds for

downward departure); United States v. Wong, 127 F.3d 725, 728 (8th

Cir. 1997) (same).

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suggests that Picon’s depression, however unfortunate, rises to the

level of the "extraordinary." Undoubtedly, imprisonment is

stressful. With or without a § 5H1.3 departure, however, Picon

will be required to serve some prison time, yet will continue to

receive the same effective treatment in prison.14 As Picon's

commission of the criminal offense constituted the catastrophic

event which precipitated his conviction and imprisonment, the

adverse consequences flowed from his voluntary criminal conduct and

ensuing guilty plea. See United States v. Walker, 27 F.3d 417,

418-19 (9th Cir. 1994) (holding that defendant’s arrest-induced

depression, anxiety and sleeplessness were “irrelevant for

sentencing purposes,” given that “[p]ost-arrest emotional trauma is

a natural consequence of being charged with a crime”).

Accordingly, the record in the present case discloses no material

basis — evidentiary or legal — for concluding that the Sentencing

Guidelines permitted a § 5H1.3 departure, or for that matter, any

other type of guideline departure. 

The sentences imposed by the district court are hereby

reversed; the cases are remanded for further proceedings consistent

with this opinion. Upon remand, the cases shall be assigned to a
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different judge for sentencing in accordance herewith. SO ORDERED.