defendant’s culpability, where the defendant who was in a financial crisis failed to notify his
lender when he signed over his interest in real estate to a third party to generate cash to pay his
surmounting debts.

As for post-arrest/pre-sentencing rehabilitation, although the Seventh Circuit has not
tuled on the issue, at least one circuit has suggested that extraordinary post-offense rehabilitation
can support a downward departure. See United States v. Harrinton, 947 F.2d 9567, 962 (D.C.
Cir. 1991) (R. Ginsberg, J.).

In addition to the above factors, although he has not specifically requested it, defendants
may obtain a departure based on the fact that this was a single act of aberrant behavior. The
Seventh Circuit recognizes that the Guidelines permit a sentencing court to grant a downward
departure if the criminal act which the defendant was charged with was a “single instance of
aberrant behavior.” United States v. Carey, 895 F.2d 318, 324 (7th Cir. 1990). To qualify as
aberrant behavior the criminal conduct must constitute “a spontaneous and seemingly thoughtless
act rather than one which was the result of substantial planning because an act which occurs
suddenly and is not the result of a continued reflective process is one for which the defendant
may not be arguably accountable.” Id. at 325. In determining aberrant behavior, the court may
look “at the defendant’s motivation and the presence or absence of any psychological disorders
that the defendant was suffering from, [and] whether the defendant was operating under extreme
presures.” United States v. Iaconetti, 59 F. Supp. 2d 139, 145 (D. Mass. 1999). Additionally, the
court may find that aberrant behavior was caused by “temporary and extreme family stress.”

United States v. DeRoover, 36 F. Supp. 2d 531, 533 (E.D.N.Y. 1999).

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CONCLUSION
For the foregoing reasons, Defendant Garrett’s Motion for Downward Departure is

GRANTED. It is so ordered.

esr blanche Yaaaie

BLANCHE M. MANNING
U.S. DISTRICT COURT JUDGE

pare,_ 1-47-23

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3) If not, has the Commission encouraged departures based on those features?
4) If not, has the Commission discouraged departures based on those features?

Koon, 518 U.S. at 95. The Court went on to explain the mechanics of applying this framework:

If the special factor is a forbidden factor, the sentencing court cannot use it as a

basis for departure. If the special factor is an encouraged factor, the court is

authorized to depart if the applicable Guideline does not already take it into

account. Ifthe special factor is a discouraged factor, or an encouraged factor

already taken into account by the applicable Guideline, the court should depart

only if the factor is present to an exceptional degree or in some other way makes

the case different from the ordinary case where the factor is present. Ifa factor is

unmentioned in the Guidelines, the court must, after considering the structure and

theory of both relevant individual guidelines and the Guidelines taken as a whole,

decide whether it is sufficient to take the case out of the Guidelines heartland.

The court must bear in mind the Commission's expectation that departures based

on grounds not mentioned in the Guidelines will be highly infrequent.

Id. at 95-96 (citations and internal quotations omitted). The Guidelines seek to “aid the court by
identifying some of the factors that the Commission has not been able to take into account fully
in formulating the guidelines.” U.S.S.G. § 5K2.0. These factors are listed in sections 5K2.1 to
5K2.17.

Here, Garrett sets forth three grounds under which this Court may depart from the
Guidelines: (1) the amount of loss overstates the seriousness of his offense; (2) in committing the
offense, Garrett reasonably relied upon his bankruptcy attorney; and (3) he has taken
extraordinary steps to rehabilitate himself since he committed the instant offenses.

Application Note 15(B) to section 2B1.1 (2002) states that “[t]here may be cases in which
the offense level determined under this guideline substantially overstates the seriousness of the
offense. In such cases, a downward departure may be warranted.” In United States v. Rogers, 39
F.3d 1190, 1994 WL 594589 at *1-2 (9th Cir. 1994), the court affirmed the district court’s one

level departure where the sentencing court found that the amount of loss overstated the

3+


Here, the bankruptcy came at a very difficult time in Mr. Garrett’s life. He lost his job in
1997 and for the first time in his life was unemployed. The previous ten years, he was employed.
as a loss control engineer for Continental Insurance Company, but was downsized when
Continental was taken over by CNA. After being laid-off, Garrett found it extremely difficult to
obtain employment given his age ~ 47 years old. Because he lost his job, Garrett was forced to
declare bankruptcy. He hired attorney Mark Tillman, a long-time friend, to represent him. He
met with Tillman who completed his bankruptcy petition. Garrett then signed the petition,
without reading it, where Tillman indicated for him to sign.

On May 7, 1999, Garrett and Tillman appeared before the bankruptcy trustee. At this
hearing, Garrett stated he had not sold any real estate in the last four years, did not own any real
estate, and did not have any personal injury actions pending. These statements were false
because Garrett did own property, which he had recently sold, and had a current personal injury
action pending. These misstatements are the basis of the charges against Garrett.

Garrett contends that the personal injury action was the result of an intentional criminal
act, and therefore, he believed that the perpetrator’s insurance would not pay for anything other
than his medical bills and thought he would not receive any other compensation. According to
Garrett, that is why he stated he did not have any personal injury actions pending when asked by
the trustee. Garrett asserts that Tillman knew about this action, which is evidenced by the fact
that his personal injury attorney sent Tillman a copy of Garrett’s medical bills, but did not correct

his alleged mistake.

5-


Minute Order Form (96/97)

United States District Court, Northern District of Mlinois

Name of Assigned Judge Blanche M. Manning Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 CR 976 DATE 4/4/2003
CASE USA vs. William Garrett
TITLE
{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) o Answer brief to motion due . Reply to answer brief due.
(4) oO Ruling/Hearing on set for at
(5) o Status hearing[held/continued to] [set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at
7) Oo Trial[set for/re-set for] on at
(8) QO [Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) ClLocal Rule 41.1 CIFRCP41(a)(1) [MI FRCP41(a)(2).
| [Other docket entry] For the reasons set forth in the opinion, defendant Garrett’s motion for
downward departure is granted. Enter Memorandum and Order.
(1) [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required, umber of ties
Notices mailed by judge’s staff,
Notified counsel by telephone.
v | Docketing to mail notices.
Mail AO 450 form. POSE ESE
Copy to judge/magistrate judge.
courtroom ate mailed novice
1s deputy’s
initials L_.
Date/time received in
central Clerk’s Office railing deputy intals



As for the real estate that Garrett sold, he contends that Tillman knew of the property
because he represented him in the purchase. When Garrett told Tillman that he had recently sold
the property, Tillman did not alert him to the fact that he should have disclosed this fact.

Garrett is also charged with failing to disclose that he was in the process of having his
child support payments reduced. Garrett contends that he did not know this needed to be
disclosed and that Tillman knew of this because he represented him at a hearing to reduce his

child support payments.

Consequently, this Court grant’s Garrett’s motion for downward departure.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA, ) ay
)
Plaintiff, )
) Hon. Blanche M. Manning
y. )
) 01 CR976
WILLIAM H. GARRETT, )
)
Defendant. )
MEMORANDUM AND ORDER

Defendant William Garrett was indicted for six counts of bankruptcy fraud, in violation
of 18 U.S.C. § 152, for allegedly fraudulently concealing from the bankruptcy trustee the sale of
his ownership of real property, his interest in a personal injury action, and a reduction in his child
support obligations. Garrett subsequently entered a blind plea agreement to all six counts. The
present matter comes before this Court on sentencing and Garreti’s Motion for Downward
Departure.

Under the United States Sentencing Guidelines (“the Guidelines”), Garrett’s total offense
level is a 12, based on a base offense level of 6 (section 2B1.1), plus 6 levels for the amount of
loss ($30,000) (section 2B1.1(b)(1)(D), plus 2 levels for fraud in a bankruptcy proceeding
(section 2B1.1(b)(7)(B)), minus 2 levels for acceptance of responsibility. Garrett now seeks a 2
level departure to a level 10, so that he may be sentenced to a community corrections facility,
which would enable him to keep his current job.

Generally, the sentencing court must impose a sentence falling within the applicable

range set forth in the Guidelines. See Koon v. United States, 518 U.S. 81, 85 (1996). The court

4


may, however, depart from the Guideline sentence if it “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.” 18 U.S.C. § 3553(b). See also U.S.S.G. § 5K2.0; Koon, 518 U.S. at 92.

Therefore, “[iJn the absence of a characteristic or circumstance that distinguishes a case as
sufficiently atypical to warrant a sentence different from that called for under the guidelines, a
sentence outside the guideline range is not authorized.” U.S.S.G. § 5K2.0, Comment.

Examining departures from the Guidelines, the Supreme Court in Koon explained that the
Sentencing Commission intended “the sentencing courts to treat each guideline as carving out a
‘heartland’, a set of typical cases embodying the conduct that each guideline describes.” Koon,
518 U.S. at 93 (quoting U.S.S.G. ch. 1, pt. A, intro. cmt. 4(b)). The Sentencing Commission,
however, “did not adequately take into account cases that are, for one reason or another,
unusual.” Id. Thus, “[w]hen a court finds an atypical case, one to which a particular guideline
linguistically applies but where conduct significantly differs from the norm, the court may
consider whether a departure is warranted.” U.S.S.G. ch. 1, pt. A, intro. cmt. 4(b). Therefore,
before a sentencing court is permitted to depart from the Guidelines, the court must find that
the case is “unusual” enough for it to fall outside the “heartland” of cases covered in the
applicable guideline. See Koon, 518 U.S. at 93.

The Court in Koon set forth the following factors that sentencing courts should use in

determining whether an upward departure from the applicable guidelines range is appropriate:
1) What features of this case, potentially, take it outside the Guidelines’ "heartland" and

make of it a special, or unusual, case?
2) Has the Commission forbidden departures based on those features?

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