holding that courts can depart on the basis of unusual family circumstances if this factor is present to an exceptional degree
How later courts described this case
- holding that courts can depart on the basis of unusual family circumstances if this factor is present to an exceptional degree
- affirming four-level downward departure for family circumstances, thus reducing range from 108-135 months to 70-87 months, where defendant’s common law husband died during her incarceration, leaving 8-year-old son without custodial parent
- concluding that district court retains discretion to depart for extraordinary family circumstances
- holding that Rule 35(c) applies from the time of oral imposition of the sentence
Written by the judges who cited it.
The opinion
FERGUSON, Circuit Judge,
concurring:
I agree that Rule 35(c) does not permit a district court to “change its mind about the appropriateness of [a] sentence” that it already imposed on a defendant. Rule 35(c), Advisory Committee Notes (1991 Amendments). I write separately for the limited purpose of highlighting the narrow focus of our holding. In the proceedings below, the district court granted a two level downward departure based on the fact that it would be extremely difficult for Ms. Aguirre’s eight-year-old son to visit her given the absence of a women’s prison facility in the surrounding area. The district court further noted that male prisoners and their families do not confront the same hardships- because there are numerous men’s prisons in the vicinity.
Today, we reverse the two level departure, not because the Sentencing Guidelines preclude it, but rather because the timing and procedures the district court used in granting the departure violated Rule 35(c). We save for another day the issue of whether a district court can grant a downward departure based on the absence of a local women’s prison facility.