## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 12 2003 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 02-2193 AGNES M. CORDOVA,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D.C. NO. CR 01-632 MV)
Laura Fashing, Assistant United States Attorney, (D avid C. Iglesias, United States Attorney, with her on the brief), Office of the Uni ted States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellant. Jacquelyn Robins, Esquire, Albuquerque, New Mexico, for Defendant-Appellee.

Before HARTZ , BALDOCK , and McCONNELL , Circuit Judges.

McCONNELL , Circuit Judge.
Agnes M. Cordova pled guilty to distribution, and p ossession with intent to distribute, crack cocaine. At sentencing, the dist rict court departed downward fifteen levels from the United States Sentencing Gu idelines (“Guidelines”) range-2-

of 46-57 months’ imprisonment, and sentenced her to time served in jail (4 days) and 5 years of supervised release. Because we conc lude that the degree of the downward departure was an abuse of the district cou rt’s discretion, we vacate the sentence and remand. On three separate occasions in the spring of 2001, Agnes Cordova sold crack cocaine to undercover police officers in Pojo aque, New Mexico. Police arrested Cordova during the third transaction. At the time of the arrest, Cordova was carrying 45.6 grams of crack. She told police that she had been dealing drugs for about three months. A federal grand jury indicted Cordova on one count of distribution of more than five grams of crack cocaine and one count of p ossession with intent to distribute more than five grams of crack cocaine, i n violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Under a plea agreement, C ordova pled guilty to both counts on October 30, 2001. The Government and Cordova stipulated in the plea a greement to Cordova’s eligibility for (1) a three-level reducti on for acceptance of responsibility under U.S.S.G. § 3E1.1, (2) a four-l evel reduction for being a minimal participant under U.S.S.G. § 3B1.2, and (3) a two-level “safety valve” reduction under U.S.S.G. § 2D1.1(b)(6). The presentence report also recommended the safety valve and acceptance of resp onsibility reductions, but it-3-

recommended that the district court not grant the m inimal participant reduction. At sentencing, the district court granted the recom mended safety valve and acceptance of responsibility downward adjustments, and, despite the presentence report’s contrary recommendation, it also granted the minimal participant adjustment. After the court applied these downwardadjustments, Cordova’s offense level was 23, which, with a criminal history category of I, resulted in a sentencing range of 46 to 57 months in prison. Cordova moved for a downward departure of fifteen l evels to offense level 8 and sentencing range of 0 to 6 months, so that sh e could be sentenced to time served and avoid incarceration. Cordova argued that her age, mental and physical condition, family responsibilities, and diminished capacity justified the downward departure. Two expert witnesses testified on Cordo va’s behalf at the sentencing hearing. Mary Jane Sak, a clinical counselor, desc ribed numerous physical, mental, and emotional ailments from which Cordova s uffered. She also explained that Cordova exhibited an abnormal anxiety for her son, and that she had been driven to deal drugs because she was desperate for money to pay for a lawyer who could help her son get out of prison. Dr. Thomas T hompson, a board-certified neuropsychologist, administered a number of psychol ogical tests to Cordova and concluded that she suffered from an impaired fronta l lobe which inhibited her capacity for problem solving and rational judgment.-4-

The district court granted the fifteen-level downward departure and sentenced Cordova to time served in jail and five y ears of supervised release. The court based its departure on Cordova’s reduced ment al capacity and on her physical and mental condition. While the court ack nowledged that fifteen levels was a “significant departure,” it explained the deg ree of its departure as follows: The reason for the departure to [offense level] 8 i s to be able to punish Ms. Cordova for the conduct in which she has engaged in [ sic ], but punish her in a way that is not irreversibly detrim ental to her health.

. . . . . . . She needs to be able to have a consisten t availability of the medications and monitoring of the medications, and she needs the support of her family. The extent of the departure is also justified by Dr. Thompson’s opinion in his report and in his testimony today th at indicated that the reduced mental capacity significantly contributed t o the commission of this crime. It wasn’t a peripheral issue or a marg inal issue. It was a significant reason for the commission of this offen se. The Government objected to the sentence and filed t his appeal. On appeal, the Government does not contest the district court’ s decision to depart downward from the applicable Guidelines range based on Cordo va’s reduced mental capacity. However, the Government contends that th e degree of the departure was unreasonable. We review the degree of the district court’s depart ure for an abuse of discretion. “In determining whether the degree of departure is reasonable . . . , ‘the appellate court should afford the trial court some discretion, as we should not lightly overturn determinations of the appropriate degree of departure.’” United-5-

States v. Goldberg , 295 F.3d 1133, 1138 (10th Cir. 2002) (quoting United States v. Flinn , 987 F.2d 1497, 1504 (10th Cir. 1993)). To justify its degree of departure, the district co urt “must specifically articulate reasons for the degree of departure usin g any reasonable methodology hitched to the Sentencing Guidelines, including extrapolation from or analogy to the Guidelines.” United States v. Hannah , 268 F.3d 937, 941 (10th Cir. 2001) (internal quotation marks omitted). The district c ourt’s explanation must do more than restate the justification for the departure, b ecause the requirement that the court state reasons for the degree of departure is separate and distinct from the requirement that it explain why a departure is warranted. United States v. Whiteskunk , 162 F.3d 1244, 1254 (10th Cir. 1998). The senten cing court should attempt to predict what sentencing range the Senten cing Commission would have established if it had considered the circumstances. Id. Justification with “mathematical exactitude” is not required, but the explanation must include “some method of analogy, extrapolation or reference to the sentencing guidelines.” Id

. (internal quotation marks and citation omitted). F inally, the district court may not determine ex ante that the defendant should not serve any jail time and then choose a degree of departure to achieve the desired result. Goldberg , 295 F.3d at
1139-40.-6-

Cordova argues that the district court’s rationale was properly grounded in the Guidelines, because the departure was based pri marily on the extent of Cordova’s reduced mental capacity, which is a permi ssible reason for departure from the Guidelines. See U.S.S.G. § 5K2.13. The Guidelines provide that if the court departs on this basis, “the extent of the dep arture should reflect the extent to which the reduced mental capacity contributed to th e commission of the offense.” Id . As noted above, the district court stated that o ne reason justifying its degree of departure was that Cordova’s reduced mental capa city “significantly” contributed to her commission of the crime. Howeve r, a fifteen-level departure cannot be justified merely by a finding that reduce d mental capacity was a significant factor in the crime. The defendant mus t have acted under the influence of a significantly reduced mental capacity to be eligible for any departure at all. U.S.S.G. 5K2.13 (“A sentence bel ow the applicable guideline range may be warranted if the defendant committed t he offense while suffering from a significantly reduced mental capacity.”). I n this context, the district court’s explanation for the degree of departure ess entially restates the justification for departure in the first place. An explanation t hat “does nothing more than restate the justification for . . . departure . . . does not fulfill the separate requirement of stating the reasons for imposing the particular sentence.” Whiteskunk , 162 F.3d at 1254 (internal quotations and citatio n omitted).-7-

It seems clear that the primary reason that the dis trict court departed as far downward as it did was so that Cordova could avoid incarceration and continue to benefit from support from her family and therapist. Our decision in Goldberg specifically forbids this sort of justification. Goldberg rejected a district court’s result-oriented eight-level departure to ensure the defendant’s eligibility for a non-incarceration sentence because the district cou rt’s methodology was not based on analogy or reference to the Guidelines andwas inconsistent with the Guidelines’ fundamental goal of promoting uniformity in sentencing. Goldberg , 295 F.3d at 1139. Here, the district court’s appro ach, resulting in a departure nearly twice as large as the one rejected in Goldberg , is similarly lacking in references to the Guidelines and is inconsistent wi th its goals. We must therefore remand for resentencing. It is not our place, as an appellate court, to usurp the role of the district court in determining the proper degree of departure on remand. In view of the extraordinary, and essentially unjustified, degree of departure directed by the district court at the initial sentencing, however, we feel constrained to observe that our review of the record does not suggest thata departure in excess of the1 To the extent the Prosecutorial Remedies and Tools Against the

Exploitation of Children Today Act of 2003 (ProtectAct), Pub. L. No. 108-21, 117 Stat. 650 (April 30, 2003), affects this case, a matter not briefed by the parties due to the Act’s recent enactment, we hold that the district court may depart to some degree based on Cordova’s significantly reduced mental capacity. See 18 U.S.C. § 3742(g)(2)(B). The Government does notdispute that such a departure is appropriate in this case, and there is sufficient evidence in the record of Cordova’s reduced mental capacity to support dep arture on this basis. -8- two to four levels recommended by the government atoral argument would be appropriate. 1 For these reasons, we VACATE the district court’s s entence and REMAND for determination of the appropriate degree of depa rture.