finding that district court's downward departure under section 5H1.6 on the basis that the defendant was breast feeding her child at the time of sentencing was erroneous; court reasoned in part that "there is no evidence in the record supporting the district court's statement in its Sentencing Opinion that the infant was `totally dependent on [Dyce] for nourishment,' nor is there any evidence that the child could not have been fed from a bottle."
How later courts described this case
- finding that district court's downward departure under section 5H1.6 on the basis that the defendant was breast feeding her child at the time of sentencing was erroneous; court reasoned in part that "there is no evidence in the record supporting the district court's statement in its Sentencing Opinion that the infant was `totally dependent on [Dyce] for nourishment,' nor is there any evidence that the child could not have been fed from a bottle."
- holding that, "Mike family responsibilities, a defendant’s education, employment record, and various good works are not ordinarily relevant in determining departures,” and may be the basis for one only if the defendant is likely to make a contribution to society of “an extraordinary degree”
- holding that the district court erred when it departed based on the defendant’s status as a single mother with three children under the age of four, one of whom was being breast-fed, and where incarceration would require placing the children in foster care
- holding that the district court erred when it departed based on defendant's status as a single mother with three children under the age of four, one of whom was being breast-fed, and where incarceration would require placing the children in foster care
Written by the judges who cited it.
The opinion
TATEL, Circuit Judge,
concurring in denial of rehearing and rehearing en banc:
Under the Sentencing Guidelines, district judges have discretion to depart downward in response to the extraordinary family circumstances of defendants, but they must do so based on careful fact-finding and reasoned decisionmaking. The Supreme Court has now made clear that we review such departures for abuse of discretion. See Koon v. United States, — U.S. -,-, 116 S.Ct. 2035, 2044-45, 135 L.Ed.2d 392 (1996). The panel’s decision regarding the district court’s treatment of family circumstances is consistent with this command. Because the district court’s conclusions were unsupported by record evidence, there was an abuse of discretion. Indeed, the district court made inaccurate assumptions about parental responsibility under New York law and made generalizations such as, “[T]he kids are always better off living with the mother,” and “[Normally speaking, they are better-kept children with the mother.” The district court also made conclusory statements about appellee’s family situation, such as, “[I]f the father has to take care of the kids, then he isn't going to be able to go out and earn money for the kids.” Not only does no record evidence support this assertion, but the weight of the evidence suggests it is untrue: Appellee, her children, and their father lived at the time of her arrest with three other adult relatives. Although, as Judge Wald points out, the record does not reflect any arrangement for the care of the infant, that is because the district court chose not to explore this issue, and appellee presented no evidence showing that her infant — or her other children, for that matter — would not receive adequate care were she to be sent to prison.
This case does not present the general question whether convicted parents should be sent to prison. That is a question for Congress. The issue here is whether the district court in this case made the findings necessary to justify departing downward from the sentencing range prescribed by the Sentencing Guidelines. Because the district court failed to base its decision on record evidence, and because the modifications the panel has made in its opinion leave the district court free to take additional evidence, this ease is inappropriate both for rehearing and for rehearing en banc.