capacity combined with a serve lack of resources greatly influenced the decisions she made
which led to [her] current legal issue.”

After carefully examining the expert reports and Dr. Miles’ testimony, this Court finds
that Davis’ cognitive defect and influence of her former abusive boyfriend substantially
contributed to the behavior which led to the offense for which she is charged here, to the extent
that she could not control behavior which she knew to be illegal. Consequently, this Court

exercises its discretion to depart downward from the Guidelines.

-13-



Adjustment for Acceptance 3

of Responsibility

(section 3E1.1(a) and (b))

Total Offense Level: 27
With a Total Offense Level of 27 and a Criminal History Category of I, the 2002 Guidelines
provide for a period of incarceration between 70-87 months, Probation’s recommended sentence
is 70 months.

ANALYSIS

Davis seeks a downward departure on the grounds that: (A) an extraordinary
family hardship exists; and (B) diminished mental capacity and duress substantially contributed
to her illegal conduct. The Court will address each of these contentions in tum but will first
discuss this Court’s discretion to depart from the Guidelines.

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
may, however, depart from the Guideline range 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, “[i]n 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

4


Td, at *5.5

Here, Davis has five children — ages 5, 7, 10, 11, and 16. According to Davis, the
children have developed severe emotional and behavioral problems since learning of their
mother’s arrest and likely incarceration. Unfortunately, these problems are only likely to be
exacerbated by her incarceration. Davis, who is on public aid and the sole supporter and care
giver of her children, asserts that if sent to prison, there are not any relatives or friends to take
care of her children, and thus, they would most likely go into foster care. Additionally, Davis
states that she “has the responsibility for caring for [her mother], [who] suffered a massive heart
attack in October of 2003.

Given this unique family situation and the fact that Davis does not have any relatives to
care for her children while incarcerated, the Court finds that incarceration will detrimentally
affect her children much more than the average single mother facing prison. Consequently, this
Court finds that extraordinary family circumstances are present here, and therefore, exercises its

discretion to depart downward from the Guidelines.

6 The Court notes that in at least two other similar cases, Judge Williams granted a

downward departure where she found that the defendant was the primary financial provider for
his children, United States v. Strong, 1996 WL 745397 (N.D. Ill. Dec. 23, 1996), and where the
incarceration of the defendant would endanger his children’s physical and/or mental health.
United States v. Jones, 1999 WL 1144910 (N.D. Ill. Dec. 8, 1999).

-9-



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.

A. Extraordinary Family Circumstances

Courts may grant a downward departure for “extraordinary family circumstances” where
the defendant’s children or other family members are unusually dependent upon the defendant
and could face serious mental or physical problems if separated from the defendant. See United
States v. Stefonek, 179 F.3d 1030, 1038 (7th Cir. 1999) (reconsideration of departure based on
extraordinary family circumstances was warranted where defendant was a single mother of a
12-year old with learning problems; such reconsideration required a determination of whether
child would suffer greater harm than normal child, what care would be available for child while
defendant was in prison and whether professional assistance was available for the child); United
States v, Owens, 145 F.3d 923, 929 (7th Cir. 1998) (affirming downward departure from
imprisonment range of 168-210 months and imposing a sentence of 120 months in crack cocaine
possession case; the defendant was primary support for wife and children; family would go on
public assistance as a result of defendant's incarceration; defendant spent time every day with
brother who suffered from Downs Syndrome); United States v. Gauvin, 173 F.3d 798, 806-08
(10th Cir. 1999) (14-month departure in case involving assault on federal officer with a
dangerous weapon; the defendant was a father and supporter of his wife and four young children;
wife could barely support family, and she was in danger of losing custody of the children);

United States v. Galante, 111 F.3d 1029, 1035-36 (2nd Cir. 1997) (approving 13-level downward

6-



‘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, “[wJhen 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 a departure from the applicable guidelines Tange 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?

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.

-5-


Applying the above principals, Judge Williams, in United States v. Graham, 1998 WL
88885, at * 3-4 (N_D. Ill. Feb. 20, 1998), granted a downward departure based on extraordinary
family ties and responsibilities. The defendant in Graham pled guilty to four counts of bank
tobbery. Id. at *1. Before committing the robberies, the defendant’s business was “completely
wiped out,” and as a result, the defendant was unable to pay for nursing care for his seriously ill
wife and began caring for her at their home. Id, After the death of his wife, the defendant
suffered a nervous breakdown that led to his drinking heavily and the commission of the bank
Tobberies. Id. Since being arrested, however, the court found that the defendant “has been
sober, completely cooperative, and openly remorseful.” Id. at 3.

Reviewing decisions where family circumstances were found to be extraordinary, Judge
Williams noted that “other courts faced with this question have departed downwards when the
defendant was solely responsible for the physical and mental health of a family member.” Id. at
*4. Reviewing the defendant's circumstances, the court found that the defendant’s daughter-in-
law and her family had become “very dependent on [the] defendant.” Id. at *5. The defendant
lived with his son and his wife, who is disabled, and their two children. Id, The defendant
cooks, cleans, cares for the daughter-in-law, and generally manages the home. Id, Consequently,
Judge Williams found that:

in light of the tragic circumstances leading up to defendant’s involvement in the charged

offense and defendant’s confession upon his arrest, the court finds that no end will be

served by imprisoning defendant for the time prescribed by the guidelines. Based on the
factors detailed above and the fact defendant is currently 70 years old, currently sober,
and no longer depressed, the court finds that defendant is no longer a threat to the
community. Accordingly, the court concludes that [defendant's] family ties and

responsibilities take his case outside the Guidelines’ heartland and warrant a downward
departure.


Minute Order Form (06/97)

United States District Court, Northern District of Iinois

N A
writes | Blanche M. Manning | Senin
CASE NUMBER 03 CR 84 DATE August 24, 2004
CASE United States v. Davis
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 of the motion being presented.)

MOTION:

DOCKET ENTRY:

(1) a Filed motion of [ use listing in “Motion” box above.)

(2) a Brief in support of motion due

(3) a Answer brief to motion due . Reply to answer brief due__.

(4) o Ruling/Hearing on__—sset for att

(5) Qa Status hearing{held/continued to} [set for/re-set for])on__——sset for at.

(6) o Pretrial conference[held/continued to] [set for/re-set for]on__—set for sat.
(7) o Trial{set for/re-set for]on __at

(8) a (Bench/Jury trial} [Hearing] held/continued to__at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OO FRCP4(m) O General Rule21 OFRCP41(a)(1) O FRCP41(a)(2).

(10) —_TM [Other docket entry] For the reasons set forth in the attached Memorandum and Order, Defendant
Davis’ Motion for Downward Departure is GRANTED. It is so ordered.

(11) Qo [For further detail see order on the reverse side of the original minute order.]

No notices required, advised in open court.

No notices required.

V | Notices mailed by judge’s staff,

Notified counsel by telephone.

1¥N09 LaMisig “s:
mae $f

Docketing to mail notices.

Mail AO 450 form. C24 Wd 429
. J
Copy to judge/magistrate judge. AW A002,
OT Sue
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courtroom atid
RTS deputy’s
initials
Date/time received in
central Clerk's Office



often left the children “for long periods of time without food” and beat them when they cried
because of hunger. Id, at *2. While still in high school, the defendant began a relationship,
which resulted in three children, with an abusive boyfriend who was a cocaine dealer. Id, at *1.
The boyfriend would often beat the defendant, particularly when she refused to obey his orders.
Id, at *2. Two experts who examined the defendant opined that she suffered from “Dependant
Personality Disorder,” and would do “almost anything” to maintain the relationship with her
abusive boyfriend, regardless of whether such action “was self-destructive.” Id, at *3.

In granting a downward departure under sections 5K2.12 and 13, Judge Coar
acknowledged that the defendant “could in the abstract, understand that the criminal conduct
engaged in was wrong.” Id. at *4. Judge Coar, however, found that the relevant issue was
whether her mental condition and her boyfriend’s abuse “contributed to the commission of the
offense.” Id. at *5. Based on her Dependent Personality Disorder, her feelings of dependence
and worthlessness, and her boyfriend’s physical and mental abuse, Judge Coar found that the
defendant was “extraordinarily susceptible to [her boyfriend’s] criminal direction” and that the
extent that these factors “contributed to the offense conduct was substantial.” Id. Accordingly,
Judge Coar found that the above factors warranted ten level departure under sections 5K2.12 and
13.

Here, Davis’ situation is similar to that of the defendant in Coleman in that the
combination of her cognitive defect and her abusive boyfriend significantly contributed to her
commission of the instant offense. A clinical therapist who examined Davis, diagnosed her with
Dependant Personality Disorder and Bipolar Disorder. Both of Davis’ parents were heroin

addicts. Her father was in prison most of her life. As a result of her parent’s addictions, Davis

-l1-



B. Diminished Mental Capacity and Duress

Additionally, Davis contends that she is entitled to a departure for diminished capacity
and duress during the time of the offense, based on Guideline sections 5K2.13 and 5K2.12.

Section 5K2.13 allows a court to depart below the Guidelines if “the defendant
committed the offense while suffering from a significantly reduced mental capacity.”
“Significantly reduced mental capacity means that the defendant although convicted has a
significantly impaired ability to (A) understand the wrongfulness of the behavior compromising
the offense or to exercise the power of reason; or (B) control behavior that the defendant knows
is wrongful.” Guideline section 5K2.13, Comment 1. Additionally, the defendant must show
that there is at least “some causal connection between [her] mental condition and [her] criminal
conduct.” United States v. Dyer, 216 F.3d 568, 571 (7th Cir. 2000).

Section 5K2.12 permits a downward departure:

If the defendant committed the offense because of serious coercion, blackmail or

duress, under circumstances not amounting to a complete defense, the court may

decrease the sentence below the applicable guideline range. The extent of the decrease

ordinarily should depend on the reasonableness of the defendant's actions, on the

proportionality of the defendant's actions to the seriousness of coercion, blackmail, or

duress involved, and on the extent to which the conduct would have been less harmful

under the circumstances as the defendant believed them to be. Ordinarily coercion will

be sufficiently serious to warrant departure only when it involves a threat of physical

injury, substantial damage to property or similar injury resulting from the unlawful

action of a third party or from a natural emergency.

In United States v. Coleman, 1997 WL 666512, at *4 (N.D. Ill. Oct. 22, 1997), Judge
Coar granted a 13 level departure based on a combination of sections 5K2.12 and 13. The

defendant in Coleman pled guilty to one count of laundering money for her boyfriend, who was

acocaine dealer. Id. at *1, The defendant was raised by an abusive and neglectful mother, who

-10-


departure in a drug case to time served plus 24 months home detention for a defendant with two
young children ages eight and nine; wife and children were uniquely dependent on the defendant
because the wife was unable to speak English and could not support the family); United States v.
Sclamo, 997 F.2d 970, 973-74 (1st Cir. 1993) (affirming a downward departure where the
defendant had developed a special relationship with the young son of a woman with whom he
was living who had psychological and behavioral problems, and his psychologist believed there
would be a risk of "regression and harm if [the] defendant were incarcerated”).

Additionally, many commentators agree that “family responsibility” departures are
consistent with, and not contrary to, the Guidelines. See, ¢.g., Jack B. Weinstein, The Effect of
Sentencing on Women, Men, the Family, and the Community, 5 Colum. J. Gender & L. 169, 178
(1996) (‘[iJ]n certain cases, in view of the necessity of maintaining family stability in
environments where father role models are few and far between, downward departures from the
Guidelines and a search for alternatives to incarceration are a necessity for male defendants”);
Jody L. King, Avoidin: der Bias in Downward artures for Family Responsibilities Under
the Federal Sentencing Guidelines, 1996 Ann. Surv. Am. L. 273, 301 (1996) (suggesting that
increased use of departures for family responsibilities is appropriate, but cautioning that “the
decision to grant a downward departure for family responsibilities [should] turn{ ] on the need of
the defendant's dependents”); Placido G. Gomez, The Struggle Against Unwarranted Uniformity:

he Evolution of Federal Sentencin; artures on E: rdin: i
Circumstances--The Case of Low-Level Drug Offenders, 21 J. Marshall L. Rev. 77, 90 (1995)
(suggesting the use of alternative to incarceration in cases involving low-level drug offenders

with extraordinary family responsibilities).

-7-



Dr. Miles, a board certified psychiatrist, also examined Davis. After construing several
psychological tests administered to Davis, Dr. Miles found that Davis has “long term issues with
her cognitive capacity” and “possible brain impairment” which could result in “problems with
attention, memory, organization, reasoning and problem solving.” Based on this diagnosis, Dr.
Miles opined that “Davis’ impaired cognitive capacity combined with a severe lack of resources
greatly influenced the decisions she made which led to [her] current legal issue.”

Despite her troubled upbringing, drug and alcohol abuse, and mental illness, with the
exception of the instant matter, Davis has steered clear of any major legal troubles. In her plea
agreement, Davis admitted that from June 1999 until January 2002, she, Christine Williams, and
others conspired to possess in excess of one kilogram of PCP with the intent to distribute it, in
violation of 21 U.S.C. § 846. Davis also admitted that in the fall of 2001 until January 2002, she
and others purchased “wholesale” quantities of PCP which were tesold by Davis and others to
“street-level” customers. Davis further admitted that during the course of the conspiracy at least
three kilograms of PCP were brought and sold.

After Davis’ plea of guilty, Probation completed a PSR for Davis. Probation calculated
Davis’ total offense level under the 2002 Guidelines as follows:

Base Offense Level: 32

(based on Davis’ admission in

her plea of 3 kilograms of PCP)’

Safety Valve Departure: -2
(section 2D1.1(b)(6))

5 Because Davis admitted to possessing at least three kilograms of PCP and waived

her right to a jury trial, the determination of her base offense level is unaffected by the
Blakely and Booker decisions.

3-



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

GRANTED. It is so ordered.

eNTERS BLANCHE M. Man |
pate:_& af-of

U.S. DISTRICT COURT JUDGE

14


Davis currently has five children - ages 5,7, 10, 11, and 16. According to Davis, since
learning of her arrest and pending incarceration, the children have developed severe behavioral
and emotional problems. Davis is the sole support and care giver for her children. Because
there are not any relatives or friends to care for her children, if Davis is incarcerated, they would
most likely go into foster care and conceivably be separated from each other. Additionally,
Davis states that she “has the responsibility for caring for [her mother], [who] suffered a massive
heart attack in October of 2003.

Her two “long-term” relationships with men resulted in abuse. Her relationship with Earl
Dobbs was described as “extremely abusive and destructive.” Dobbs, who was 20 years older
than Davis, forced Davis to sell drugs by beating her and threatening to leave her and her
children if she refused.? During the time of the instant conspiracy, Dobbs financially supported
Davis and her children.

In anticipation of sentencing, Davis’ attorney arranged for two experts to examine her.‘
The first expert to examine Davis was Calvin Young, a licensed clinical therapist. Mr. Young
diagnosed Davis as suffering from a Dependant Personality Disorder and Bipolar Disorder.
According to Mr. Young, Davis’ decisions to stay with Dobbs and sell drugs would have been
substantially affected by her Dependant Personality Disorder because her condition resulted in
her having “an excessive need to be taken care of by others,” and taking actions, without regard

to the consequences, to please “significant others, such as former lovers.”

3 Dobbs died in 2002, from complications resulting from his drug addiction.

‘ Although the Court offered the Government an extension of time to retain its own
expert, it did not offer any expert testimony to rebut Davis’ experts.

-2-



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

EASTERN DIVISION
UNITED STATES OF AMERICA )
)
) Hon. Blanche M. Manning
v. ) y)
) 03 CR 84 Wy
KIM DAVIS )
Ag 2 Mery
MEMORANDUM AND ORDER o oy

Defendant Kim Davis pled guilty to one count of conspiracy to possess with intent to
distribute in excess of one kilogram of PCP, in violation of 21 U.S.C. § 846. The present matter
comes before this Court on Davis’ motion for a downward departure at sentencing.!

BACKGROUND?

Kim Davis’ life is a tragic example of the vicious circle which illegal drugs reap on our
society. Davis, who is now 34 years old, was born to a heroin addicted mother and a father who
was incarcerated most of Davis’ life. This combination unfortunately led to a “very unstable
household” in which Davis and her sister were neglected. Not surprisingly, Davis dropped out of
school at an early age and began abusing alcohol and drugs, eventually becoming addicted to
PCP, crack cocaine, and alcohol. Davis’s mother reported that Davis exhibited “suicidal
behavior over the years,” including an attempt to “jump from a moving vehicle” when she was

16 years old.

! This Memorandum and Order supplements this Court’s in-court rulings on August
12 and 24, 2004, on the issues of mental capacity and duress.

2 The facts in the Background section and throughout this opinion are taken from
the Presentence Investigation Report (“PSR”) which was prepared by the United States Probation
Office (“Probation”), the parties’ submission, including two expert reports submitted by Davis,
and the testimony presented at the sentencing hearing on August 13, 2004. S ~


spent most of her childhood with her grandmother. By age 13, Davis was using alcohol and
marijuana, and cocaine and PCP by 18.’ She dropped out of high school by the tenth grade.

Her two “long-term” relationships with men resulted in abuse. Her relationship with Earl
Dobbs was described as “extremely abusive and destructive.” Dobbs, who was 20 years older
than Davis, allegedly forced Davis to sell drugs by beating her and threatening to leave her and
her children if she refused. At that time, Dobbs financially supported Davis and her children.
Dobbs beatings were so severe that Davis miscarried twice after being beaten. Her decision to
stay with Dobbs and sell drugs, was significantly related to her Dependant Personality Disorder.
The clinical therapist found that Davis’ condition resulted in her having “an excessive need to be
taken care of by others,” and taking actions, without regard to the consequences, to please
“significant others, such as former lovers.”

Additionally, Dr. Miles found that Davis has “long term issues with her cognitive
capacity” and “possible brain impairment” which could result in “problems with attention,
memory, organization, reasoning and problem solving.” According to Dr. Miles, some of the
defects were probably the result of Davis’ mother abusing alcohol and drugs while pregnant with
Davis. Dr. Miles also concluded that Davis began selling drugs to please Dobbs because “not
pleasing him would lead to consequences which were unacceptable.” This need to please others
even with respect to illegal activity was a behavior that Davis learned very early on based upon
her decreased mental capacity and growing up in a home with a mother and other relatives, who

were all drug addicts. Based on this diagnosis, Dr. Miles opined that “Davis” impaired cognitive

Davis reports that she is now sober and attending NA and AA.
-12-