United States v. Randall Wilke

CUDAHY, Circuit Judge,

concurring in part and dissenting in part:

I agree that this matter should be remanded because, in granting a downward departure, the sentencing judge may have inappropriately taken into account the nature of the offense. The majority’s discussion of this issue is generally apt.

However, the trial judge was proceeding entirely within her discretion in concluding that Wilke’s passive, meek demeanor made him a choice target for prison abuse. The government would prefer height and weight as relevant characteristics because they are objective, “tangible.” But in Koon the government argued that “[sjusceptibility to prison abuse ... never should be considered because the degree of vulnerability to assault is an entirely subjective judgment, and the number of defendants who may qualify for that departure is virtually unlimited.” 518 U.S. at 106, 116 S.Ct. 2035 (emphasis added and internal quotation marks and citations omitted). The Court responded that “[tjhose arguments, however persuasive as a matter of sentencing policy, should be directed to the [Sentencing] Commission. Congress did not grant the federal courts authority to decide what sorts of sentencing considerations are inappropriate in every circumstance.” Id. This language puts subjective findings on demeanor clearly within the purview of the trial judge and nothing more need be done here with this dimension of the case. It seems to me that Judge Bucklo has made more than adequate findings with respect to Wilke’s demeanor and that further elaboration (as vaguely suggested by the majority) is unnecessary.

In the matter of Wilke’s community service, the majority’s observations are simply unacceptable. The majority seems to be saying that in organizing and participating in numerous community events involving young people, Wilke was motivated by a desire to exploit those occasions for illicit sexual purposes. This, of course, is the purest and most objectionable speculation, there being no showing that Wilke’s community contributions had the slightest relation to sexual misdeeds. See 995 F.Supp. 828 , 830-31 n. 4 (N.D.I11.1998). The majority’s ominous reference to “furthering] a criminal intent,” ante, is wholly unsupported by the record before us. (The reference to “ill-gotten gains” is simply baffling. Id.) In fact, the broad and spontaneous outpouring of praise for his social contributions is strong evidence not only that they were not connected with disreputable activities but that members of the community who knew him best did not perceive any questionable motivations.

Students of psychology have long noted the phenomenon of sublimation, where baser instincts can find expression in praiseworthy acts. It seems to me that nothing can be gained by casting a shadow over constructive activity because one can surmise a link to deviant impulses deep in the unconscious. There is absolutely no reason to denigrate a groundswell of community appreciation for good works that is as extraordinary as the one before us.

Judge Bucklo conducted an extensive hearing, made her own well-supported determination of credibility, provided a careful analysis and wrote a well-documented published opinion. She exercised her considerable discre *756 tion in a fully appropriate way. I believe that she would be more than capable of again addressing Wilke’s sentence, setting aside considerations of the nature of the offense, and coming to a balanced and fair conclusion. With respect, therefore, I would remand the case to her on that basis.