Petition for Writ of Certiorari — Roach v. United States

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/ Supreme Court, U.S.

FILED

No. 04-94 414 SEP 2 2 2008

OFFICE OF THE CLERK

In The

Supreme Court of the United States

ELIZABETH R. ROACH,

Petitioner,

Vs.

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

MARC W. MARTIN

Counsel of Record

JEFFREY B. STEINBACK

53 W. Jackson Boulevard, Suite 1420

Chicago, Illinois 60604

(312) 408-1111

en wa ———

—— oo

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

i }

QUESTIONS PRESENTED

1. Whether the United States Sentencing Guidelines

violate the Fifth and/or Sixth Amendments to the United

States Constitution in all cases?

2. Should a party be foreclosed from presenting

supplemental evidence to a district court after a court

appeals remands a case for resentencing?

TABLE OF CONTENTS

Page

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Constitutional and Statutory Provisions Involved....... 2

Statement of the Cae Qieisicscsscssisstincspsataiensaaana 5

Reasons For Granting The Writ................ccccccccecceeeeeeees 10

I. PETITIONER WAS SENTENCED UNDER

II.

AN UNCONSTITUTIONAL SENTENCING

SCHEME IN WHICH THE DISTRICT

COURT WAS OBLIGATED TO TREAT THE

UNITED STATES SENTENCING GUIDE-

LINES AS MANDATORY; PETITIONER,

WHOSE CASE IS ON DIRECT APPEAL,

WOULD RECEIVE A LESSER SENTENCE IF

THE SENTENCING GUIDELINES ARE AD-

VISORY IN ALL CASES ..... oo cccccccccsceeseeeeeseeenes

THE CIRCUITS HAVE SPLIT OVER THE

ISSUE OF WHETHER A PARTY MAY PRE-

SENT NEW EVIDENCE IN THE DISTRICT

COURT AFTER A COURT OF APPEALS RE-

MANDS A CASE FOR RESENTENCING ........

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TABLE OF CONTENTS - Continued

Appendix:

A. United States v. Roach, 372 F.3d 907 (7th

I ee A-1

B. United States v. Roach, 00 CR 411, Amended

Judgment Order (N.D. TIL.) ............ccccceeceeseeeeeeeeeees B-1

C. United States v. Roach, 2003 WL 21183997

EEE ANS AE eS, Oe C-1

D. United States v. Roach, 296 F.3d 565 (7th

Sy EIT Ul incstnrnctnoccssirininniinanspsenteeeseusonsctans D-1

TABLE OF AUTHORITIES

Page

CASES

Blakely v. Washington, 124 S.Ct. 2531 (2004)....... 10, 11, 14

Coleman v. McCormack, 874 F.2d 1280 (9th Cir.

IRE ENE ee MOAN OI ey SN ne eC 19

Griffith v. Kentucky, 479 U.S. 314 (1987) .0........ cc cececeeeeee 12

Schriro v. Summerlin, 124 S.Ct. 2519 (2004)..........00000.... 12

United States v. Behler, 100 F.3d 632 (8th Cir. 1996)....... 16

United States v. Booker, 375 F.3d 508 (7th Cir.

REE Ea oa Saree ae ana ah CU Mak Rt att Kees 12, 13, 14

United States v. Hammoud, 2004 WL 2005622 (4th

SFhg TINY Ge, TID acscecticnstinsidsapestensenticsecsibcnnaiclieennia 11

United States v. Husband, 312 F.3d 247 (7th Cir.

I asic ei inate a a 15

United States v. King, 2004 WL 1769148 (M.D. Fla.,

Se IU isideestiosherccnesiuaidaiinae ie biceida dit eats aos: 14

United States v. Leonzo, 50 F.3d 1086 (D.C. Cir.

RETR IRMeR tetera MPT Se Ts SO te a EEE TEN RO 17

United States v. Matthews, 278 F.3d 880 (9th Cir.

RENEE SPIRE SE reap PENA et AO Pn ee A he 16, 17

United States v. Moreno-Hernandez, 48 F.3d 111

I 16

United States v. Mueffleman, 327 F.Supp.2d 79 (D.

REEDS aac ak ae ye EE 14

United States v. Noble, 367 F.3d 681 (7th Cir. 2004)........ 16

United States v. Parker, 101 F.3d 527 (7th Cir.

SR SIA EES eet ere Ae MOD eet ON NC eee ea 15

TABLE OF AUTHORITIES — Continued

Page

United States v. Polland, 56 F.3d 776 (7th Cir.

QO. csiicissiinaniscuiietibceiincaldeiicielaadapeiaiaiibcaaaaiilai 15, 16

United States v. Roach, 372 F.3d 907 (7th Cir.

SII ictitca ci saicccaniinnadcnen dauadicnbiduneiliohinia niabiaiaiitie: 5, 9, 10, 16

United States v. Roach, 296 F.3d 565 (7th Cir.

SED scsiineissiidinisiatubiiiidisisdtibecnsdeiienaesiaiedicslammhieiaiansinaial 6, 7, 14, 19

United States v. Roach, 03 WL 21183997 (N.D. Ill.

OO... scchicaictanrenttiattidieiaidasievddianalentcamnaln 8, 9, 15, 16

United States v. Rodgers, 278 F.3d 599 (6th Cir.

OID ., scsnascsciniitiiatiinsdiadinaninaniinatnesidcipdeadaiauidiindiaiaaning lial 16

United States v. Sadolsky, 234 F.3d 938 (6th Cir.

SOD... scrociscscinsiiiékiodisiatinsiiiinatanaiinediassiaalansapssniniuniiialiaataaaaiiatan 5

United States v. Shotwell Mfg. Co., 355 U.S. 233

CAEP sccrcresnisiecntascuhiasininenatsiistapiiisammnaimaunne eed 18

United States v. Stern, 13 F.3d 489 (1st Cir. 1994)........... 19

United States v. Stinson, 97 F.3d 466 (11th Cir.

DEEDS nncocnaccncenenctionddnanduniaditdnhineehassddessdniliia iain 16

United States v. Sumner, 325 F.3d 884 (7th Cir.

ID scconnccacccdnniicocnnsaasinmmniaibiidedaninsenteiiiaciiaae Aiea 8, 15

United States v. Wyss, 147 F.3d 631 (7th Cir. 1998).....8, 15

Yates v. Aiken, 484 U.S. 211 (1988).................scccccesssseeeeees 12

CONSTITUTION AND STATUTES

BD UG, B BID ccccccccessiinsttaipintinncnsciimntsiadadnassedanssesnennanuanian 5

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TABLE OF AUTHORITIES — Continued

Page

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PETITION FOR WRIT OF CERTIORARI

PRAYER

Petitioner, Elizabeth Roach, respectfully prays that a

writ of certiorari issue to review the judgment and opinion

of the United States Court of Appeals for the Seventh

Circuit, which was entered in the above-entitled case on

June 24, 2004.

OPINIONS BELOW

The Seventh Circuit’s opinion affirming the peti-

tioner’s sentence is published at 372 F.3d 907 and attached

in Appendix (“App.”) A. The district court's judgment order

is attached in App. B. The district court’s opinion granting

the government's motion for reconsideration and denying

the petitioner's renewed motion for downward departure is

attached in App. C. The Seventh Circuit's original opinion

vacating the sentence and remanding the case for resen-

tencing is published at 296 F.3d 565 and attached in App.

JURISDICTION

On June 24, 2004, the United States Court of Appeals

for the Seventh Circuit delivered its opinion affirming

Petitioner Elizabeth Roach’s sentence. App. A. No petition

for rehearing was filed. This petition has been filed within

90 days of the Seventh Circuit’s judgment and is timely.

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

1. The Fifth Amendment to the United States

Constitution provides in pertinent part:

No person shall be . . . deprived of life, liberty, or

property, without due process of law.

2. The Sixth Amendment to the United States

Constitution provides in pertinent part:

In all criminal prosecutions, the accused shall

enjoy the right to. . . trial, by an impartial jury.

3. Title 18, United States Code, § 3553(a) provides:

(a) Factors to be considered in imposing a sentence.

~ The court shall impose a sentence sufficient, but not

greater than necessary, to comply with the purposes

set forth in paragraph (2) of this subsection. The

court, in determining the particular sentence to be

imposed, shall consider—

(1) the nature and circumstances of the offense

and the history and characteristics of the defen-

dant;

(2) the need for the sentence imposed —

(A) to reflect the seriousness of the offense,

to promote respect for the law, and to pro-

vide just punishment for the offense;

(B) to afford adequate deterrence to crimi-

nal conduct;

crimes of the defendant; and

(D) to provide the defendant with needed

educational or vocational training, medical

care, or other correctional treatment in the

most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing

range established for --

(A) the applicable category of offense com-

mitted by the applicable category of defen-

dant as set forth in the guidelines —

(i) issued by the Sentencing Commis-

sion pursuant to section 994(a)(1) of ti-

tle 28, United States Code, subject to

any amendments made to such guide-

lines by act of Congress (regardless of

whether such amendments have yet to

be incorporated by the Sentencing

Commission into amendments issued

under section 994(p) of title 28); and

(ii) that, except as provided in section

3742(g), are in effect on the date the de-

fendant is sentenced; or

(B) in the case of a violation of proba-

tion or supervised release, the applica-

ble guidelines or policy statements

issued by the Sentencing Commission

pursuant to section 994(a)(3) of title 28,

United States Code, taking into account

any amendments made to such guide-

lines or policy statements by act of

Congress (regardless of whether such

amendments have yet to be incorpo-

rated by the Sentencing Commission

into amendments issued under section

994(p) of title 28);

(5) any pertinent policy statement —

(A) issued by the Sentencing Commis-

sion pursuant to section 994(a)(2) of ti-

tle 28, United States Code, subject to

any amendments made to such policy

statement by act of Congress (regard-

less of whether such amendments have

yet to be incorporated by the Sentenc-

ing Commission into amendments is-

sued under section 994(p) of title 28);

and

(B) that, except as provided in section

3742(g), is in effect on the date the de-

fendant is sentenced.

(6) the need to avoid unwarranted sen-

tence disparities among defendants with

similar records who have been found guilty

of similar conduct; and

(7) the need to provide restitution to any

victims of the offense.

4. Title 18, United States Code, § 3661 provides:

No limitation shall be placed on the information

concerning the background, character, and con-

duct of a person convicted of an offense which a

court of the United States may receive and con-

sider for purposes of imposing an appropriate

sentence.

STATEMENT OF THE CASE

1. Petitioner was charged with scheming to defraud

her employer of more than $240,000 in violation of 18

U.S.C. § 1343. “The scheme involved padding her expenses,

submitting false expense reports, requesting reimbursement

for conferences that she registered for but did not attend,

resubmitting expense reports that were already paid, and

falsely labeling personal expenses as business expenses.”

United States v. Roach, 372 F.3d 907, 908 (7th Cir. 2004)

(“Roach IT’); App. A-2. Petitioner repaid credit card debts,

accrued from excessive purchases of jewelry and clothes,

with the embezzled funds. Id.

Petitioner pled guilty. Her adjusted offense level

under the United States Sentencing Guidelines was Level

13, Criminal History Category I, thereby resulting in a 12-

18 month Zone D imprisonment range. Petitioner moved

for downward departure pursuant to U.S.S.G. § 5K2.13

(significantly reduced mental capacity at the time of the

offense). At the time of the initial sentencing, the Seventh

Circuit had not determined whether § 5K2.13 required the

mental impairment to be the behavior constituting the

offense.

The United States District Court, the Honorable

Matthew F. Kennelly, granted a downward departure in

accordance with United States v. Sadolsky, 234 F.3d 938,

943 (6th Cir. 2000), which held that § 5K2.13 does not

require a “direct link” between the defendant’s impairment

and the crime. Judge Kennelly sentenced the petitioner to

five years probation, six weeks work release, six weeks

home confinement with weekend electronic monitoring

and barred her from obtaining any credit cards absent

court permission. Roach IT, 372 F.3d at 908; App. A-3.

2. The government appealed. It was uncontroverted

that the petitioner suffered “from chronic depression and

for most of her adult life has turned to unnecessary and

excessive shopping to relieve the pain of that depression.”

United States v. Roach, 296 F.3d 565, 566 (7th Cir. 2002)

(Roach I); App. D-2. The government did not seriously

dispute that the petitioner “had a significantly impaired

ability to control her shopping, or that either her depres-

sion or compulsive shopping disorder motivated her

crime.” Id. at 568-69; App. D-7. The government, however,

argued that, under § 5K2.13, impairment that provided

the motive is an insufficient ‘connection’ to the offense. Id.

at 569; App. D-7. “In the government’s view, for volitional

impairments, the compulsive behavior must be the behav-

ior constituting the offense, and not some other behavior

that explains the motive.” Jd.

The Seventh Circuit concluded that “section 5K2.13

requires an assessment of the defendant’s mental capacity

at the time of the offense.” Roach I, 296 F.3d at 571; App. D- |

11-12. The Seventh Circuit deemed it “not entirely clear”

whether the district court had found that the petitioner’s

impairment related to an inability to control her conduct

when she committed the offenses. Jd.; App. D-12. The

Seventh Circuit assumed that the district court’s findings

included such a finding and examined the evidence. Jd. In

doing so, the Seventh Circuit noted that some of the expert

submissions did not discuss the petitioner’s mental capac-

ity at the time of the offenses. Id. at 571-73; App. D-13.

While other experts had concluded that the petitioner “had

a significantly reduced mental capacity” during the offenses,

the Seventh Circuit ruled that they did not offer sufficient

“explanation of reasoning.” Jd. at 572; App. D-14. The

Seventh Circuit held that a finding that the petitioner had

a significantly impaired mental capacity to control her

conduct at the time of the offense to be unsupported by the

evidence. Id. at 571; App. D-12.

In its conclusion, the Seventh Circuit stated:

We have no doubt that Roach’s depression and

shopping have had a profound impact on her life.

In this way she is like countless criminal defen-

dants who come before the court from all walks

of life with a wide variety of personal character-

istics that suggest a basis for leniency. The sen-

tencing guidelines, however, significantly limit a

district court’s ability to fashion a sentence based

on such considerations. Those guidelines pre-

scribe a particular sentencing range, which in

this case was driven by the magnitude of Roach’s

fraud. We are mindful that our review of the dis-

trict court’s decision to impose a sentence below

this range is deferential, but are convinced that

the court abused its discretion in granting a

downward departure based on § 5K2.13. Its find-

ings on Roach’s motive do not establish the criti-

cal issue of her mental capacity at the time of the

offense, and on that issue, there is no evidence to

support the court’s conclusion that Roach had a

significantly impaired ability to control her be-

havior. Roach’s sentence is therefore VACATED

and the case REMANDED for resentencing.

Id. at 573 (emphasis added); App. D-16.

3. On remand, the petitioner sought leave to renew

her motion for downward departure and supplement the

record with further medical opinions addressing the

“critical issue of her mental capacity at the time of the

offense.” United States v. Roach, No. 00 CR 41, District

Court Record (“R.”) 38 (N.D. Ill.). The government opposed

the motion, contending that revisiting “the downward

departure issue would violate the principle of ‘law of the

case, and undermine any concept of finality in the sen-

tencing process.” R. 39. Petitioner responded that the

Seventh Circuit’s order did not limit the district court

ability to reconsider the “critical issue” and that she

appeared before the district court for resentencing with a

“clean slate.” R. 40. The district court found the cases cited

by the petitioner persuasive, and allowed the petitioner to

renew her motion for downward departure. R. 41.

The government requested reconsideration on grounds

that cases cited by the petitioner were no longer good law.

R. 45, pp. 2-5. According to the government, certain cases

had “disavowed the notion that a general remand gives the

district court a ‘clean slate’ in the resentencing process.” R.

45, pp. 3-4. Petitioner opposed the reconsideration request

and the district court initially disagreed with the govern-

ment’s position. See United States v. Roach, 03 WL 21183997

(N.D. Ill. 2003); App. C.

On April 25, 2003, the government again sought

reconsideration based upon the discussion of United States

v. Wyss, 147 F.3d 631 (7th Cir. 1998), in United States v.

Sumner, 325 F.3d 884 (7th Cir. 2003). R. 52. This time,

Judge Kennelly sided with the government, stating:

The Court of Appeals, though first indicating

that it was unclear whether this Court had made

a sufficient finding on the issue of Roach’s condi-

tion at the time of her offense, went on to say

that if we had made such a finding, it was un-

supported by the evidence. The latter holding is

sufficient to bring the Wyss rule into play. Roach

-_ a rn PENN li CAS SNe — -

Sn I NG OND cl DE Rom wan

is not entitled on remand to attempt to plug the

gap that the Court of Appeals found in the origi-

nal record. Her motion for downward departure

is therefore denied.

Roach, 03 WL 21183997; App. C-9. Judge Kennelly never-

theless indicated that the matter was not free from doubt,

and that the Seventh Circuit’s position conflicted with

other circuits. Id.

4. On June 6, 2003, Judge Kennelly sentenced the

petitioner to one-year and one-day in prison, followed by

two years supervised release. R. 59; App. B. At the sen-

tencing hearing, Judge Kennelly said:

The sentence that I have — the sentencing range

that I’m dealing with now is 12 to 18 months in

prison. The low end of that is in my opinion far in

excess of what is warranted in this case based on

its unusual circumstances. But that sometimes

happens with the Sentencing Guidelines and that

sometimes happens in cases involving people

whose circumstances are at the completely oppo-

site end of the spectrum of Ms. Roach. It is cer-

tainly true in this case. But what the Sentencing

Guidelines do is they essentially confine our dis-

cretion both ways. They put a cap on it, they put

a floor on it, except in unusual situations, and

this I guess is not one of those, at least as the

Court of Appeals has seen it. |

6/6/03 Tr. 24 (emphasis added).

5. Petitioner appealed. In its opinion, the Seventh

Circuit stated that the principle that allows a district

court to restructure its sentence after a remand does not

allow the district court to reopen “fully heard issues.”

Roach, 372 F.3d at 910; App. A-4. The court of appeals

looked to cases that had prohibited the government from |

submitting new evidence in support of a sentencing |

guideline point on remand. Jd. at 909; App. A-4. The court

observed that it had not previously applied the remand

limitation to defendants. Id. at 910; App. A-5. The court

nonetheless affirmed, stating, “When either party fails to

meet its burden to prove a guidelines’ sentencing depar-

ture or enhancement, it cannot use the opportunity of a

remand to supplement the record in its favor.” Id.

REASONS FOR GRANTING THE WRIT

I. PETITIONER WAS SENTENCED UNDER AN

UNCONSTITUTIONAL SENTENCING SCHEME

IN WHICH THE DISTRICT COURT WAS OBLI-

GATED TO TREAT THE UNITED STATES

SENTENCING GUIDELINES AS MANDATORY;

PETITIONER, WHOSE CASE IS ON DIRECT

APPEAL, WOULD RECEIVE A LESSER SEN-

TENCE IF THE SENTENCING GUIDELINES

ARE ADVISORY IN ALL CASES

On June 24, 2004, this Honorable Court handed down

Blakely v. Washington, 124 S.Ct. 2531 (2004). As now

familiar, the majority opinion in Blakely stated:

Our precedents make clear, however, that the

“statutory maximum” for Apprendi purposes is

the maximum sentence a judge may impose

solely on the basis of the facts reflected in the jury

verdict or admitted by the defendant. See Ring,

supra, at 602, 122 S.Ct. 2428 (“‘the maximum he

would receive if punished according to the facts

reflected in the jury verdict alone’” (quoting Ap-

prendi, supra, at‘483, 120 S.Ct. 2348)); Harris v.

en ce :

United States, 53€ U.S. 545, 563, 122 S.Ct. 2406,

153 L.Ed.2d 524 (2002) (plurality opinion)

(same); cf. Apprendi, supra, at 488, 120 S.Ct.

2348 (facts admitted by the defendant). In other

words, the relevant “statutory maximum” is not

the maximum sentence a judge may impose after

finding additional facts, but the maximum he

may impose without any additional findings.

When a judge inflicts punishment that the jury’s

verdict alone does not allow, the jury has not

found all the facts “which the law makes essen-

tial to the punishment,” Bishop, supra, § 87, at

55, and the judge exceeds his proper authority.

124 S.Ct. at 2537.

Blakely addressed the State of Washington’s sentenc-

ing guidelines, and did not consider the United States

Sentencing Guidelines. In Blakely’s aftermath, the courts

of appeal have divided on the question of whether Blakely

applies to the federal sentencing guidelines.’ Notably, in

‘ As recently stated in United States v. Hammoud, 2004 WL

2005622, *20 (4th Cir., September 8, 2004):

The Seventh and Ninth Circuits have ruled that Blakely

does impact the guidelines. See United States v. Ameline,

376 F.3d 967, 974 (9th Cir.2004); United States v. Booker,

375 F.3d 508, 511 (7th Cir.2004) (“Blakely dooms the guide-

lines insofar as they require that sentences be based on

facts found by a judge.”), cert. granted, 73 U.S.L.W. 3073

(U.S. Aug. 2, 2004) (No. 04-104). In contrast, the Fifth and

Sixth Circuits have held that Blakely does not affect the

guidelines. See United States v. Koch, 2004 WL 1870438, at

*1 (6th Cir. Aug. 13, 2004) (en banc) (order affirming judg-

ment of the district court) (“We hold . . . that the decision of

the U.S. Supreme Court in Blakely ... does not invalidate

the appellant’s sentence under the federal Sentencing

Guidelines.”); United States v. Pineiro, 377 F.3d 464, 465-66

(5th Cir.2004) (“Having considered the Blakely decision,

(Continued on following page)

United States v. Booker, 375 F.3d 508 (7th Cir. 2004), the

Seventh Circuit determined that Blakely applied to federal

sentencing guideline enhancements.

The law is clear that this Honorable Court’s declara-

tions of constitutional law apply to all cases then pending

on direct appeal. See Schriro v. Summerlin, 124 S.Ct.

2519, 2522 (2004); Yates v. Aiken, 484 U.S. 211, 215-16

(1988); Griffith v. Kentucky, 479 U.S. 314, 322 (1987).

Because the time for the filing of a certiorari petition had

not expired when this Honorable Court rendered its

decision in Blakely, the petitioner is entitled to application

of the constitutional rule announced in Blakely. See

Griffith, 479 U.S. at 321 n. 6 Gudgment becomes final

when “the availability of appeal exhausted, and the time

for a petition for certiorari elapsed or a petition for certio-

rari finally denied”).

This Honorable Court has granted the Solicitor

General's petitions for certiorari in Booker and United

States v. Fan Fan. Nos. 04-104 and 04-105. In its merits

brief in those cases, the government acknowledges that

the Sixth Amendment may be violated “by the imposition

of an enhanced sentence under the United States Sentenc-

ing Guidelines based on the sentencing judge’s determina-

tion of a fact (other than a prior conviction) that was not

found by the jury or admitted by the defendant.” United

prior Supreme Court cases, and our own circuit precedent,

we hold that Blakely does not extend to the federal Guide-

lines. . . .”). The Second Circuit certified questions regarding

the application of Blakely to the guidelines to the Supreme

Court, see United States v. Penaranda, 375 F.3d 238, 247

(2d Cir.2004), but in the meantime has declined to apply

Blakely to the guidelines, see United States v. Mincey, 2004

WL 1794717, at *3 (2d Cir. Aug. 12, 2004) (per curiam).

ee Se

States v. Booker, No. 04-104, U.S. Brief, p. I. Assuming this

Honorable Court so finds, the government has framed a

secondary issue as follows:

[W]hether, in a case in which the Guidelines would

require the court to find a sentencing fact, the

Guidelines as a whole would be inapplicable, as a

matter of severability analysis, such that the sen-

tencing court must exercise its discretion to sen-

tence the defendant within the maximum and

minimum set by statute for the offense of conviction.

Id.

Before this Honorable Court in Booker, the government

opposes severance of the “unconstitutional” portions of the

guidelines, i.e., sentencing enhancements requiring a jury

determination based on a proof beyond a reasonable doubt

standard. While asking (as an alternative argument) this

Honorable Court to find the guidelines unconstitutional in

their entirety, the government apparently envisions a regime

in which sentencing guidelines would sometimes apply, e.g.,

in cases in which a disputed sentencing enhancement is

determined by a jury or admitted by the defendant.

A sentencing system that is constitutional in some

cases, but not others, would be rather odd. If either party

conjured a disputed guideline point — whether real or not —

the guidelines would be not mandatory. That system would

leave the application of Congressional Acts to the whims of

the parties. It also would lead to sentencing disparity —

parties could create or avoid disputes depending on their

prediction of whether their sentencing position would be

more likely vindicated by the discretion of a particular

district judge or the sentencing guidelines.

It is the petitioner’s position that the United States

Sentencing Guidelines are unconstitutional in their entirety,

and in all cases. See United States v. King, 2004 WL 1769148

(M.D. Fla., July 19, 2004); United States v. Mueffleman, 327

F’Supp.2d 79 (D. Mass. 2004). Federal sentences in all cases

— including ones in which the jury finds, or the defendant

admits, the aggravating factor - should be imposed in

accordance with 18 U.S.C. § 3553(a), with the guidelines

remaining “advisory factors for the court to consider.” Booker,

US. Brief, p. 67.

Petitioner was sentenced under an unconstitutional

system. As the government suggests in Booker, advisory

guidelines do not violate the United States Constitution.

Here, however, the guidelines were anything but advisory.

As the Seventh Circuit recognized in Roach I, the peti-

tioner, like many criminal defendants, had presented

mitigating facts, but they could not be used to reduce the

sentencing range. Roach I, 296 F.3d at 573; App. D-__.

Moreover, in resentencing the petitioner to the peniten-

tiary, the district court emphatically stated that it would

impose a lesser sentence but for the guidelines. 6/6/03 Tr.

24. The petitioner consequently has been prejudiced. She

would not be facing a penitentiary sentence in the face of

non-mandatory sentencing guidelines.

Based on the foregoing, Petitioner Elizabeth Roach

respectfully moves this Honorable Court to vacate the

Seventh Circuit’s judgment and remand for reconsidera-

tion in light of Blakely and/or Booker.

Il. THE CIRCUITS HAVE SPLIT OVER THE IS-

SUE OF WHETHER A PARTY MAY PRESENT

NEW EVIDENCE IN THE DISTRICT COURT

AFTER A COURT OF APPEALS REMANDS A

CASE FOR RESENTENCING

Scope of remand questions is an area of the law that is

“fraught with confusion.” United States v. Roach, 03 WL

21183997, *4 n. 1 (N_D. Ill. 2003) (citing United States v.

Husband, 312 F.3d 247, 250 (7th Cir. 2000)); App. C-8.

Seventh Circuit jurisprudence illustrates as much. As

Judge Kennelly noted below, several Seventh Circuit

decisions “indicated that after a sentence is vacated, a

‘clean slate’ exists” on remand. Roach, 03 WL 21183997, *1

(citing United States v. Polland, 56 F.3d 776 (7th Cir.

1995); United States v. Atkinson, 979 F.2d 1219 (7th Cir.

1979); United States v. Barnes, 948 F.2d 325 (7th Cir.

1991)); App. C-2.” In United States v. Sumner, 325 F.3d 884

(7th Cir. 2003), the court held that the government could

introduce new evidence on sentencing remand occasioned

by plain error appellate review. The government construed

Sumner, and its discussion of United States v. Wyss, 147

F.3d 631 (7th Cir. 1998), as establishing a general ban on

the introduction of new evidence on remand where the

appellate court reversed the district court’s original

finding (on plenary review) on insufficiency of the evidence

grounds. Wyss, however, did not reference Polland which

“was decided just three years earlier (in 1995), and was

seemingly reaffirmed in Parker in 1996.” Roach, 03 WL

21183997; App. C-7.

? In accordance with those decisions, Judge Kennelly on two

occasions ruled that the petitioner could pursue her downward depar-

ture motion on remand.

Although the district court viewed the issue as “close,”

it deduced that Wyss had “effectively overruled Polland.”

Feach, 03 WL 21183997; App. C-8. Judge Kennelly thus

denied the petitioner’s request to reopen the downward

departure motion (to address the deficiency identified by

the court of appeals). Judge Kennelly noted that his

interpretation of Wyss conflicted “with the law in several

other Circuits.” Id. *4 (citing United States v. Rodgers, 278

F.3d 599, 602 (6th Cir.2002); United States v. Behler, 100

F.3d 632, 635 (8th Cir.1996)); App. C-9.

Roach IT, too, observed that the law was not uniform.

The Seventh Circuit cited United States v. Matthews, 278

F.3d 880, 889 (9th Cir.2002) (en banc), as conflicting with its

decision.’ In Matthews, the defendant sold three firearms to

* In addition to Matthews, cases involved in circuit split may be

cataloged as follows: Compare Rodgers, 278 F.3d at 602 (“When a

district judge sentences a defendant after remand, the judge is permit-

ted to revisit the entire sentencing procedure, unless she is restricted in

her review by the remand order. (Citation omitted.) When the remand

order does not restrict the district court in its reassessment of its

sentence, the court remains free to rely upon ‘any legitimate factors’

when making its determination, as long as it rules without vindictive-

ness.”); Behler, 100 F.3d at 635 (“Once a sentence has been vacated or a

finding related to sentencing has been reversed and the case has been

remanded for resentencing, the district court can hear any evidence on

that issue that it could have heard at the first hearing.”); United States

v. Moreno-Hernandez, 48 F.3d 1112, 1116 (9th Cir. 1995) (“A resentenc-

ing mandate from an appellate court, however, does away with the

entire initial sentence, and authorizes the district court to impose ‘any

sentence which could lawfully have been imposed originally.’”); United

States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996) (when a criminal

sentence is vacated, it becomes void in its entirety; the sentence —

including any enhancements — has been wholly nullified and the slate

wiped clean. Consequently, ... the district court is free to reconstruct

the sentence utilizing any of the sentence components.”); with United

States v. Noble, 367 F.3d 681, 682 (7th Cir. 2004) (“the government is

not permitted on remand to try again and submit new evidence in a

(Continued on following page)

an ATF informant. He was subsequently convicted of being

a felon in possession of a firearm and sentenced as an

Armed Career Criminal (“ACC”) to 280 months in prison.

Matthews, 278 F.3d at 882. On appeal, Matthews chal-

lenged, among other things, the application of the ACC

enhancement. Jd. at 883. A three-judge panel affirmed

Matthews’ conviction, reversed his sentence because the

District Court erred in sentencing Matthews as an ACC

and remanded for resentencing on the existing record. Jd.

at 882. The Ninth Circuit agreed to hear the case en banc

to determine whether, in remanding for resentencing, it

was appropriate to limit the district court’s discretion to

consider additional evidence. Jd. at 882. Matthews argued

that the Ninth Circuit ought to limit the district court’s

discretion to consider evidence beyond the existing record

because the Government failed to meet its burden of

production and persuasion and “ought not be allowed a

‘second bite at the apple.’” Jd. at 885. The en banc panel

rejected Matthews’ contention and held:

We are not persuaded that we should impose

such limitations on the district court’s discretion

to consider any matter, including additional evi-

dence, relating to resentencing.

We hold that, as a general matter, if a district

court errs in sentencing, we will remand for re-

sentencing on an open record — that is, without

limitation on the evidence that the district court

may consider.

Matthews, 278 F.3d at 885.

belated effort to carry its burden.”); United States v. Leonzo, 50 F.3d

1086, 1088 (D.C. Cir. 1995) (the government should not get a “second

bite at the apple” after remand).

We are unaware of any decisions in which this Honor-

able Court has specifically addressed scope of remand

issues in the sentencing context. In United States v.

Shotwell Mfg. Co., 355 U.S. 233, 243 (1957), this Honor-

able Court stated, “It is undeniable, of course, that upon

appellate reversal of a conviction the Government is not

limited at a new trial to the evidence presented at the first

trial, but is free to strengthen its case in any way it can by

the introduction of new evidence.” If that is the “undeni-

able rule” in the trial-remand context, then it is difficult to

fathom why sentencing remand should be treated differ-

ently.

The notion that a party is wholly foreclosed from

supplementing the record on remand is also inconsistent

with 18 U.S.C. § 3661, which provides, “No limitation shall

be placed on the information concerning the background,

character, and conduct of a person convicted of an offense

which a court of the United States may receive and con-

sider for purposes of imposing an appropriate sentence.” A

court order barring the petitioner from renewing her

motion for downward departure with supplemental evi-

dence upon remand violates § 3661 in that it constitutes a

“limitation ... on information concerning the background,

character, and conduct of a person . . .”*

* When the Seventh Circuit originally remanded this case in July

2002, the statute governing sentencing appeals, 18 U.S.C. § 3742, did

not include specific instructions for the court of appeals, or the district

court upon remand. The PROTECT Act, Pub.L. 108-21, which became

effective April 30, 2003, amended § 3742 to include such instructions.

Among other things, the PROTECT Act precludes a district court on

remand from imposing a sentence outside the guideline range unless

specifically discussed in the district court’s statement of reasons for the

sentence prior to the appeal and identified by the court of appeals as a

(Continued on following page)

In additiun, due process considerations weigh in favor

of allowing the petitioner to supplement the record on

remand. At the original sentencing hearing in this case,

the parties obviously did not have benefit of the Seventh

Circuit’s application of § 5K2.13 (since that would come as

a result of the government’s later appeal). As detailed

above, the Seventh Circuit announced a certain construc-

tion of U.S.S.G. § 5K2.13 in Roach I. Under that circum-

stance, simple fairness dictates that the petitioner be

afforded an opportunity to satisfy the standard articulated

by the court on appeal. See United States v. Stern, 13 F.3d

489, 498 (1st Cir. 1994) (“where a sentence is vacated and

remanded for redetermination under correct principles, [a

party] is not automatically foreclosed from offering evi-

dence pertinent to the newly announced rule”); see also

Coleman v. McCormack, 874 F.2d 1280, 1288 (9th Cir.

1989) (en banc) (due process violation occurred when “re-

formulated” sentencing statute was applied to defendant

without advance notice.).

Congress has granted the government and defendants

significant appellate rights in the sentencing context. 18

U.S.C. § 3742(a), (b). We could not even begin to list the

number of cases that have been remanded for resentencing

since the United States Sentencing Guidelines went into

effect. Suffice it to say, appellate sentencing remand is not

rare. As shown by this case, confusion exists as to what

can and cannot be litigated on sentencing remand, and the

permissible ground of departure. 18 U.S.C. § 3742(g)(2) (2004). Al-

though the PROTECT Act became law after the remand in Roach I, the

present version of 18 U.S.C. § 3742(g)(2) is inconsistent with 18 U.S.C.

§ 3661.

courts of appeal have not ruled in a uniform fashion.

Clarification by this Honorable Court is needed.

CONCLUSION

WHEREFORE, based on the foregoing, Petitioner

Elizabeth Roach respectfully moves this Honorable Court

to enter an order granting certiorari, vacating the Seventh

Circuit judgment, reversing the Seventh Circuit’s judgment,

remanding for further proceedings and granting any other

appropriate relief.

Respectfully submitted,

Marc W. MARTIN

Counsel of Record

JEFFREY B. STEINBACK

53 W. Jackson Boulevard,

Suite 1420

Chicago, Illinois 60604

(312) 408-1111

A-1

APPENDIX A

372 F.3d 907

United States Court of Appeals,

Seventh Circuit.

UNITED STATES of America, Plaintiff-Appellee,

Elizabeth R. ROACH. Defendant-Appellant.

| No. 03-3078.

Submitted Jan. 9, 2004.*

Decided June 24, 2004.

Barry Rand Elden (submitted), Chief of Appeals,

Office of the United States Attorney, Chicago, IL, for

Plaintiff-Appellee.

Jeffrey B. Steinback, Chicago, IL, for Defendant-

Appellant.

Before POSNER, EVANS, and WILLIAMS, Circuit

Judges.

WILLIAMS, Circuit Judge.

In this successive appeal we consider for the second

time the propriety of Elizabeth R. Roach’s sentence for

her conviction for wire fraud. Roach contends that our

remand order vacating the district court’s sentence

permitted the court to consider additional evidence

regarding the vacated downward departure for dimin-

ished capacity. Therefore, she reasons, the district court

* We have concluded, after an examination of the briefs and the

record, that oral argument is unnecessary. The appeal is, therefore,

submitted on the briefs and the record. See Fed. R.App. P. 34(a)(2).

A-2

erred at the resentencing hearing when it did not allow

expert testimony regarding her state of mind at the time

she committed the charged offense. We disagree. For the

reasons stated below, we affirm.

I. BACKGROUND

We assume familiarity with the general facts of this

case as set forth in United States v. Roach, 296 F.3d 565

(7th Cir.2002) (Roach I). We will repeat only those facts

pertinent to this appeal. Roach pled guilty to wire fraud in

violation of 18 U.S.C. § 1343, for knowingly executing a

scheme to defraud her employer of more than $240,000.

The scheme involved padding her expenses, submitting

false expense reports, requesting reimbursement for

conferences that she registered for but did not attend,

resubmitting expense reports that were already paid, and

falsely labeling personal expenses as business expenses.

She used the embezzled funds to repay credit card debts

that she accrued from excessive purchases of jewelry and

clothes.

In Roach [, the district court concluded, and we

agreed, that Roach suffers 573.

B. The Resentencing

The district court, over the government’s objections,

granted Roach’s motion for leave to file a renewed motion

for downward departure. Roach intended to use expert

witnesses to prove that her mental capacity was signifi-

cantly impaired at the time she committed the offense.

Prior to the admission of any evidence, the government

filed a motion to reconsider based on supplemental author-

ity, in light of United States v. Sumner, 325 F.3d 884 (7th

A-3

Cir.2003). In granting the government’s motion, Judge

Kennelly opined that under Sumner:

if a sentencing factor or departure motion is fully

litigated in the district court, and the district

court’s ruling is reversed due to insufficiency of

the evidence supporting the ruling, then the

party bearing the burden of proof is not entitled

to an opportunity to correct the defect on re-

mand, absent a showing of special circumstances

justifying such an opportunity.

Mem. Op. & Order at 7. After granting the govern-

ment’s motion, the district court sentenced Roach, without

the downward departure, to 12 months and one day of

imprisonment. Roach appeals, arguing that the district

court should have allowed her to supplement the record

with additional evidence regarding her mental capacity.

II. DISCUSSION

Roach’s contention that the district court erred in not

fully revisiting the issue of her mental capacity at the time

she committed her offense is a question of law that we

review de novo. United States v. Husband, 312 F.3d 247,

251 (7th Cir.2002).

Roach’s insistence that our remand order subjected

her resentencing to a “clean slate,” and, therefore, a

rehearing on her request for a downward departure, is

incorrect. The “clean slate” analogy, like the parallel

“unbundling of the sentencing package” analogy, refers to

a district court’s ability to restructure sentences after part

or all of the sentence is severed or vacated. See United

States v. Polland, 56 F.3d 776, 778-79 (7th Cir.1995)

(vacating a sentence results in a “clean slate” for the

A-4

district court to resentence); United States v. Noble, 299

F.3d 907, 910 (7th Cir.2002) (Noble ID) (“[I]t is settled that

after the appellate court vacates the sentence on a particu-

lar count, the district court on remand may adjust the

entire sentencing ‘package.’”). These concepts allow a

district court to effectuate its original sentencing intent,

see United States v. Binford, 108 F.3d 723, 728-29 (7th

Cir.1997), but they do not permit the district court to

reopen fully heard issues anew. We articulated this limit

in United States v. Wyss, 147 F3d 631 (7th Cir.1998),

where we precluded the government from presenting

additional evidence on an enhancement during the resen-

tencing hearing, stating: “The government was entitled to

only one opportunity to present evidence on the issue.” Jd.

at 633; see also United States v. Noble, 367 F.3d 681, 682

(7th Cir.2004) (Noble IIT ) (holding that “the government is

not permitted on remand to try again and submit new

evidence in a belated effort to carry its burden.”); United

States v. Leonzo, 50 F.3d 1086, 1088 (D.C.Cir.1995) (hold-

ing that the government should not get a “second bite at

the apple” after remand, as the government bore the

burdens of production and persuasion). But see United

States v. Matthews, 278 F.3d 880, 889 (9th Cir.2002) (en

banc) (holding that a district court can generally consider

additional evidence for remanded sentencing guidelines

issues). We clarified in Sumner, 325 F.3d at 888, however,

that this limit is not absolute, as there is a “difference

between an issue that was fully explored at the initial

sentencing hearing and one that received no attention, but

was nonetheless reviewed on appeal under the plain error

standard.” In the latter case it may be appropriate to

admit additional evidence, whereas if an issue has been

fully explored, the party bearing the burden of proof

Ct tt i, tt

A-5

should be precluded from presenting additional evidence.

See id. at 889.

Here, the district court rightly declined to allow Roach

to supplement the record at her resentencing, as Roach’s

mental capacity was fully explored at her initial sentenc-

ing hearing. In fact, the record demonstrates both that the

government objected to the application of the downward

departure and that Roach presented evidence in support of

her contention that she was significantly impaired at the

time she committed the offense. Indeed, Roach submitted

three doctors’ statements, her binge shopping history, and

the activities surrounding those binges in her attempt to

persuade the court that she qualified for the downward

departure. In Wyss and Noble III, we held that the gov-

ernment fully explored the sentencing enhancement issue

after submitting testimony to prove drug quantity. Wyss,

147 F.3d at 633 (presenting defendant’s testimony); ‘+/v/e

III, 367 F.3d 681, 682 (presenting government witness's

testimony). And, just as in those cases, we find that Roach

was not entitled to a second bite at the apple on remand.

Although this is our first application of the Wyss rule

to defendants, Roach, correctly, does not argue that the

rule should apply to the government but not to defendants.

Just as the government has the burden when seeking a

sentence enhancement, United States v. Sienkowski, 359

F3d 463, 466 (7th Cir.2004), Roach had the burden of

establishing that she was entitled to a downward depar-

ture. See United States v. Chavez-Chavez, 213 F.3d 420,

422 (7th Cir.2000) (noting that the defendant bears the

burden when seeking a downward departure). When

either party fails to meet its burden to prove a guidelines’

sentencing departure or enhancement, it cannot use the

A-6

opportunity of a remand to supplement the record in its

favor.

III. CONCLUSION

For the reasons stated above, the judgment of the

district court is AFFIRMED.

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B-1

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN District of ILLINOIS

UNITED STATES AMENDED JUDGMENT

OF AMERICA IN A CRIMINAL CASE

V (For Offenses Committed On

3 or After November 1, 1987)

Elizabeth Roach vor ee

Date of Original Judg- 00CR411

ment: May 18, 2001 Defendant’s Attorney

(Or Date of Last -

Amended Judgment) td ove ae ae =

Reasons for Amendment:

[xx] Correction of Sentence

on Remand (Fed. R.

Crim. P. 35(a))

Reduction of Sentence

for Changed Circum-

stances (Fed. R. Crim.

P. 35(b))

Correction of Sentence

by Sentencing Court

(Fed. R. Crim. P.

for Clerical Mistake

(Fed. R. Crim. P. 36)

Correction of Sentence >

U.S.C. §§ 3563(c) or

3583(e))

Modification of Imposed

Term of Imprisonment

for Extraordinary and

Compelling Reasons (18

U.S.C. § 3582(c)(1))

Modification of Imposed

Term of Imprisonment

for Retroactive Amend-

ment(s) to the Senterc-

ing Guidelines (18

U.S.C. § 3582(c)(2))

Direct Motion to District

Court Pursuant to[ |]

28 U.S.C. § 2255 or[ ]

18 U.S.C. § 3559(c)(7)

Modification of Restitu-

tion Order (18 U.S.C.

§ 3664)

B-2

ACCORDINGLY, the court has adjudicated that the

defendant is guilty of the following offense(s):

THE DEFENDANT:

[ ] pleaded guilty to count(s)

[X] pleaded nolo contendere to count(s) one of the infor-

mation which was accepted by the court.

{[ ] was found guilty on count(s)

after a plea of not guilty.

Date

Title & Offense Count

Section Nature of Offense Concluded Number(s)

18 USC Wire Fraud 4/1/1999 One

1343

The defendant is sentenced as provided in pages 2

through of this judgment. The sentence is im-

posed pursuant to the Sentencing Reform Act of 1984.

Other than the amendments or modifications stated

in this judgment, the judgment entered is to

stand (see attachment).

[] The defendant has been found not guilty on

count(s)

(} Count(s) []is [] are

dismissed on the motion of the United States.

IT IS ORDERED that the defendant shall notify the

United States attorney for this district within 30 days of

any change of name, residence, or mailing address until all

fines, restitution, costs, and special assessments imposed

by this judgment are fully paid. If ordered to pay restitu-

tion, the defendant shall notify the court and United

B-3

States attorney of any material change in the defendant’s

economic circumstances.

June 6, 2003

Date of Imposition of Judgment

/s/ Matthew Kennelly

Signature of Judicial Officer

US. District Jud

Name & Title of Judicial Officer

(MRU) August 4, 2003

Date

IMPRISONMENT

The defendant is hereby committed to the custody of

the United States Bureau of Prisons to be imprisoned for a

total term of *12 months and one day.

{X] The court makes the following recommendations to

the Bureau of Prisons:

*That defendant be designated to the FPC Pekin

The defendant is remanded te the custody of the

United States Marshal.

The defendant shall surrender to the United States

Marshal for this district:

[] at {] am. [] pm.on

[ ] as notified by the United States Marshal.

The defendant shall surrender for service of sentence

at the institution designated by the Bureau of Prisons:

{ ] before 2 p.m. on

{ ] as notified by the United States Marshal.

{ ] as notified by the Probation or Pretrial Services

Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on to

at with a certified copy of this judgment.

UNITED STATES MARSHAL

DEPUTY UNITED STATES MARSHAL

AO (Rev. 3/01) amended (Note: Identify Changes

Judgment in a Criminal Case with Asterisks (*))

Sheet 2A-Imprisonment

ADDITIONAL IMPRISONMENT TERMS

*Execution of sentence is stayed pending appeal.

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be

on supervised release for a term of *Two years

B-5

The defendant shall report to the probation office in

the district to which the defendant is released within 72

hours of release from the custody of the Bureau of Prisons.

The defendant shall not commit another federal, state, or

local crime.

The defendant shall not illegally possess a controlled

substance.

For offenses committed on or after September 13, 1994:

The defendant shall refrain from any unlawful use of

a controlled substance. The defendant shall submit to one

drug test within 15 days of release from imprisonment and

at least two periodic drug tests thereafter.

X The above drug testing condition is suspended, based

on the court’s determination that the defendant poses a

low risk of future substance abuse.

X The defendant shall not possess a firearm, destructive

device, or any other dangerous weapon.

If this judgment imposes a fine or a restitution

obligation, it shall be a condition of supervised release

that the defendant pay any such fine or restitution

that remains unpaid at the commencement of the

term of supervised release in accordance with the

Schedule of Payments set forth in the Criminal Mone-

tary Penalties sheet of this judgment.

The defendant shall comply with the standard condi-

tions that have been adopted by this court (set forth

below). The defendant shall also comply with the addi-

tional conditions on the attached page.

10)

B-6

STANDARD CONDITIONS OF SUPERVISION

the defendant shall not leave the judicial district

without the permission of the court or probation offi-

cer;

the defendant shal! report to the probation officer and

shall submit a truthful and complete written report

within the first five days of each month;

the defendant shall answer truthfully all inquiries by

the probation officer and follow the instructions of the

probation officer;

the defendant shall support his or her dependents

and meet other family responsibilities;

the defendant shall work regularly at a lawful occu-

pation, unless excused by the probation officer for

schooling, training, or other acceptable reasons;

the defendant shall notify the probation officer at

least ten days prior to any change in residence or em-

ployment;

the defendant shall refrain from excessive use of

alcohol and shall not purchase, possess, use, distrib-

ute, or administer any controlled substance or any

paraphernalia related to any controlled substances,

except as prescribed by a physician;

the defendant shall not frequent places where con-

trolled substances are illegally sold, used, distributed,

or administered;

the defendant shall not associate with any persons

engaged in criminal activity and shall not associate

with any person convicted of a felony, unless granted

permission to do so by the probation officer;

the defendant shall permit a probation officer to visit

him or her at any time at home or elsewhere and

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11)

12)

13)

B-7

shall permit confiscation of any contraband observed

in plain view of the probation officer;

the defendant shall notify the probation officer within

seventy-two hours of being arrested or questioned by

a law enforcement officer;

the defendant shall not enter into any agreement to

act as an informer or a special agent of a law en-

forcement agency without the permission of the court;

as directed by the probation officer, the defendant

shall notify third parties of risks that may be occa-

sioned by the defendant’s criminal record or personal

history or characteristics and shall permit the proba-

tion officer to make such notifications and to confirm

the defendant’s compliance with such notification re-

quirement.

ADDITIONAL SUPERVISED RELEASE TERMS

*Defendant is prohibited from obtaining any credit cards

or entering into any new credit relationship without Court

permission.

*Defendant is to maintain mental health treatment.

CRIMINAL MONETARY PENALTIES

The defendant shall pay the following total criminal

monetary penalties in accordance with the schedule of

payments set forth on Sheet 5, Part B.

Assessment Fine Restitution

TOTALS $ 100 $*10,000 $ 241,061.08

B-8

[ ] The determination of restitution is deferred until __.

An Amended Judgment in a Criminal Case (AO 245C)

will be entered after such determination.

{ ] The defendant shall make restitution (including

community restitution) to the following payees in the

amount listed below.

If the defendant makes a partial payment, each payee

shall receive an approximately proportioned payment,

unless specified otherwise in the priority order or per-

centage payment column below. However, pursuant to

18 U.S.C. § 3664(i), all nonfederal victims must be

paid in full prior to the United States receiving pay-

ment.

Priority

*Total Amount of Order or

Name of Amount’ Restitution Percentage

Payee of Loss Ordered of Paymeat

*Restitution

has been paid

in full

Totals: $ $

[ ] If applicable, restitution amount

ordered pursuant to plea agreement... .$

{ ] The defendant shall pay interest on any fine or

restitution of more than $2,500, unless the fine or res-

titution is paid in full before the fifteenth day after

the date of the judgment, pursuant to 18 U.S.C.

§ 3612(f). All of the payment options on Sheet 5, Part

* Findings for the total amount of losses are required under

Chapters 109A, 110, 110A, and 113A of Title 18, United States Code,

for offenses committed on or after September 13, 1994 but before April

23, 1996.

B-9

B may be subject to penalties for delinquency and de-

fault, pursuant to 18 U.S.C. § 3612(g).

[ ] The court determined that the defendant does not

have the ability to pay interest, and it is ordered that:

[ ] the interest requirement is waived for the

[ ] fine [ ] restitution.

{ ] the interest requirement for the [ ] fine and/or

[ ] restitution is modified as follows:

*Findings for the total amount of losses are required

under Chapters 109A, 110, 110A, and 113A of Title 18,

United States Code, for offenses committed on or after

September 13, 1994 but before April 23, 1996.

B-10

UNITED STATES DISTRICT COURT

Northern District of Illinois

UNITED STATES JUDGMENT IN A

OF AMERICA CRIMINAL CASE

V (For Offenses Committed On

or After November 1, 1987)

Case Number: 00 CR 411

Jeffery Steinback

Defendant’s Attorney

Elizabeth R. Roach

THE DEFENDANT:

X _— pleaded guilty to count(s) One of information

[ ] pleaded nolo contendere to count(s)

which was accepted by the court.

[ ] was found guilty on count(s)

after a plea of not guilty.

Date

Title & Offense Count

Section Nature of Offense Concluded Number(s)

18 USC _ Wire Fraud 4/1999 One

1343

The defendant is sentenced as provided in pages 2

through __6 __ of this judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984.

[] The defendant has been found not guilty on

count(s)

[] Count(s) {[Jis []are

dismissed on the motion of the United States.

IT IS FURTHER ORDERED that the defendant shall

notify the United States Attorney for this district within

B-11

30 days of any change of name, residence, or mailing

address until all fines, restitution, costs, and special

assessments imposed by this judgment are fully paid.

May 18, 2001

Date of Imposition of Judgment

Signature of Judicial Officer

US. District Court Judge

Matthew F. Kennelly

Name and Title of Judicial

Officer

June 4, 2001

Date

B-12

PROBATION

The defendant is hereby placed on a probation for a

term of Five (five) years.

The defendant shall not commit another federal, state, or

local crime.

The defendant shall not illegally possess a controlled

substance.

For offenses committed on or after September 13, 1994:

The defendant shall refrain from any unlawful use of

a controlled substance. The defendant shall submit to one

drug test within 15 days of placement on probation and at

least two periodic drug tests thereafter, as directed by the

probation officer.

[ ] The above drug testing condition is suspended, based

on the court’s determination that the defendant poses

a low risk of future substance abuse. (Check, if appli-

cable.)

[ ] The defendant shall not possess a firearm, as defined

in 18.U.S.C. § 921. (Check, if applicable.)

If this judgment imposes a fine or a restitution

obligation, it shall be a condition of probation that the

defendant pay any such fine or restitution in accor-

dance with the Schedule of Payments set forth in the

Criminal Monetary Penalties sheet of this judgment.

The defendant shall comply with the standard condi-

tions that have been adopted by this court (set forth

below). The defendant shall also comply with the addi-

tional conditions on the attached page.

B-13

STANDARD CONDITIONS OF SUPERVISION

1) the defendant shall not leave the judicial district

without the permission of the court or probation offi-

cer;

2) the defendant shall report to the probation officer and

shall submit a truthful and complete written report

within the first five days of each month;

3) the defendant shall answer truthfully all inquiries by

the probation officer and follow the instructions of the

probation officer;

4) the defendant shall support his or her dependents

and meet other family responsibilities;

5) the defendant shall work regularly at a lawful occu-

pation, unless excused by the probation officer for

schooling, training, or other acceptable reasons;

6) the defendant shall notify the probation officer ten

days prior to any change in residence or employment;

7) the defendant shall refrain from excessive use of

alcohol;

8) the defendant shall not frequent places where con-

trolled substances are illegally sold, used, distributed,

or administered;

9) the defendant shall not associate with any persons

engaged in criminal activity, and shall not associate

with any person convicted of a felony unless granted

permission to do so by the probation officer;

10) the defendant shall permit a probation officer to visit

him or her at any time at home or elsewhere and

shall permit confiscation of any contraband observed

in plain view of the probation officer;

B-14

11) the defendant shall notify the probation officer within

seventy-two hours of being arrested or questioned by

a law enforcement officer;

12) the defendant shall not enter into any agreement to

act as an informer or a special agent of a law en-

forcement agency without the permission of the court;

13) as directed by the probation officer, the defendant

shall notify third parties of risks that may be occa-

sioned by the defendant’s criminal record or personal

history or characteristics, and shall permit the proba-

tion officer to make such notifications and to confirm

the defendant’s compliance with such notification re-

quirement.

ADDITIONAL PROBATION TERMS

Defendant is to serve 6 weeks of work release at Salvation

Army Center in Chicago, Illinois; three weeks to be served

consecutively within the next 120 days; three weeks to

served consecutively before 5/31/02. Defendant will be

eligible for the Level System.

It is further ordered that defendant is to be on home

confinement with electronic monitoring on Saturdays and

Sundays for six months, except during any period in which

defendant is in the Salvation Army Center.

It is further ordered that defendant is prohibited from

obtaining any credit cards or entering into any new credit

relationship without Court permission. Defendant is to

maintain mental health treatment.

B-15

CRIMINAL MONETARY PENALTIES

The defendant shall pay the following total criminal

monetary penalties in accordance with the schedule of

payments set forth on Sheet 5, Part B.

Assessment Fine Restitution

Totals $ 100.00 $ 30,000 $ 241,061.08

{ ] If applicable, restitution amount

ordered pursuant to plea agreement $

FINE

The above fine includes costs of incarceration and/or

supervision in the amount of $ $

The defendant shall pay interest on any fine more

than $2,500, unless the fine is paid in full before the

fifteenth day after the date of judgment, pursuant to 18

U.S.C. § 3612(f). All of the options on Sheet 5, Part B may

be subject to penalties for default and delinquency pursu-

ant to 18 U.S.C. § 3612(g).

[ ] The court determined that the defendant does not

have the ability to pay interest, and it is ordered that:

[ ] the interest requirement is waived.

[ ] the interest requirement is modified as follows:

RESTITUTION

[ ] The determination of restitution is deferred until __.

An Amended Judgment in a Criminal Case will be en-

tered after such determination.

[ ] The defendant shall make restitution to the following

| payees in the amount listed below.

sueperemneecnnes

B-16

If the defendant makes a partial payment, each payee

shall receive an approximately proportional payment

unless specified otherwise in the priority order or percent-

age payment column below.

Priority

*Total Amountof Order or

Name of Amount’ Restitution Percentage

Payee ofLoss____ Ordered __of Payment

Restitution

has been in

paid in full

Totals: $ $

*Findings for the total amount of losses are required

under Chapters 109A, 110, 110A, and 113A of Title 18 for

offenses committed on or after September 13, 1994 but

before April 23, 1996.

SCHEDULE OF PAYMENTS

Payments shall be applied in the following order: (1)

assessment; (2) restitution; (3) fine principal; (4) cost of

prosecution; (5) interest; (6) penalties.

Payment of the total fine and other criminal monetary

penalties shall be due as follows:

A X In full immediately; or

B [] $ immediately, balance due (in

accordance with C, D, or E); or

* Findings for the total amount of losses are required under

Chapters 109A, 110, 110A, and 113A of Title 18, United States Code,

for offenses committed on or after September 13, 1994 but before April

23, 1996.

B-17

C [] not later than - or

D [|] in installments to commence days after the

date of this judgment. In the event the entire

amount of criminal monetary penalties imposed is

not paid prior to the commencement of supervi-

sion, the U.S. probation officer shall pursue col-

lection of the amount due, and shall request the

court to establish a payment schedule if appropri-

ate; or

E X in (e.g., equal, weekly, monthly, quar-

terly) installments of $ over a period

of year(s) to commence days

after the date of this judgment.

The defendant will be credited for all payments previously

made toward any criminal monetary penalties imposed.

Special instructions regarding the payment of criminal

monetary penalties:

Defendant has paid the restitution amount in full.

{ ] The defendant shall pay the cost of prosecution.

[ ] The defendant shall forfeit the defendant’s interest in

the following property to the United States:

Unless the court has expressly ordered otherwise in

the special instructions above, if this judgment imposes a

period of imprisonment, payment of criminal monetary

penalties shall be due during the period of imprisonment.

All criminal monetary penalty payments, except those

payments made through the Bureau of Prisons’ Inmate

Financial Responsibility Program, are to be made as

directed by the court, the probation officer, or the United

States attorney.

C-1

APPENDIX C

2003 WL 21183997 (N.D.II1.)

United States District Court,

N.D. Illinois, Eastern Division.

UNITED STATES OF AMERICA

Elizabeth ROACH

No. 00 CR 411.

May 20, 2003.

MEMORANDUM OPINION AND ORDER

KENNELLY, J.

Defendant Elizabeth Roach pled guilty to a charge of

wire fraud. In June 2001, the Court granted Roach’s

motion for a downward departure based on U.S.S.G.

§ 5K2.13, based on her significantly reduced mental

capacity at the time of the offense. In July 2002, the Court

of Appeals reversed; its order vacated the sentence and

remanded for resentencing. United States v. Roach, 296

F.3d 565 (7th Cir.2002). The court stated that § 5K2.13

“requires an assessment of the defendant’s mental capac-

ity at the time of the offense,” and it ruled that “in making

this assessment ... the district court’s analysis and

finding fall short.” Jd. at 571. The court said that “[iJt is

not entirely clear from the court’s opinion whether [its

findings] include Roach’s ability to control her conduct at

the time of her offense. ... It if does not, the departure

was, as we just explained, an incorrect application of

§ 5K2.13. But to the extent the judge’s conclusion can be

read to include a finding that Roach had a significantly

impaired capacity to control her conduct at the time of the

C-2

offense, it is unsupported by the evidence and clearly

erroneous.” Jd. |

On remand, Roach sought and obtained leave to

renew her motion and to supplement it with further

evidence to attempt to fill the gap identified by the Sev-

enth Circuit. The government has consistently argued that

Roach is not entitled to add new evidence to the record and

that her downward departure motion is a closed issue. On

two prior occasions, the Court has disagreed. The govern-

ment now seeks reconsideration, relying on a recently-

decided Seventh Circuit decision which in turn discusses a

1998 decision that the government had not previously

cited. This time the government has the better of the

argument.

In initially opposing Roach’s request to renew her

motion for downward departure, the government relied

exclusively on the “law of the case” doctrine, saying that

the departure issue had already been decided by the

Seventh Circuit. In reply, Roach relied on several Seventh

Circuit decisions which indicated that after a sentence is

vacated, a “clean slate” exists (though the defendant

cannot raise new grounds for departure not previously

argued). See United States v. Polland, 56 F.3d 776, 778-79

(7th Cir.1995); United States v. Atkinson, 979 F.2d 1219,

1223 (7th Cir.1992); United States v. Barnes, 948 F.2d 325,

330 (7th Cir.1991). In one of these cases, Poilland, the

Seventh Circuit had quoted with approval an Eighth

Circuit decision to the effect that when a sentence is

vacated and a case is remanded for resentencing, “ ‘the

district court can hear any relevant evidence on that issue

that it could have heard at the first hearing.” Polland, 56

F.3d at 779 (quoting United States v. Cornelius, 968 F.2d

703, 705 (8th Cir.1992)) (emphasis original in Polland). On

C-3

the strength of these decisions, the Court granted Roach

leave to renew her downward departure motion.

After Roach filed her renewed motion, the government

filed a response in which it argued that Polland, Atkinson,

and Barnes were no longer good law. It relied on two

Seventh Circuit decisions that, the government argued,

“disavowed the notion that a general remand gives the

district court a ‘clean slate’ in the resentencing process.”

Govt. Resp. to Dfdt’s Mot. for Downward Departure, p. 3

(citing United States v. Parker, 101 F.3d 527, 528 (7th

Cir.1996) and United States v. Husband, 317 F.3d 247,

250-51 (7th Cir.2002)). The Court agreed with Roach’s

position that these cases did not affect the continuing

validity of Polland as applied to this case.

Parker involved a defendant who, in a previous

appeal, had obtained an order vacating his sentence on the

grounds that he should not have received an enhancement

for obstruction of justice, and remanding for resentencing.

After resentencing, he again appealed, and his appellate

counsel filed an Anders brief. In response, the defendant

raised a number of additional challenges to his sentence.

The Seventh Circuit rejected these arguments, stating

that “[t]he remand was limited to the enhancement for the

obstruction of justice. Only an issue arising out of the

correction of the sentence ordered by this court could be

raised in a subsequent appeal. Any issue not arising out of

that correction could have been raised in the original

appeal and was therefore waived by not being raised

then.” Jd. at 528 (citing Polland, 56 F.3d at 779 and United

States v. Soto, 48 F.3d 1415, 1419 n. 10 (7th Cir.1995)). The

court went on to note that language in some previous cases

(here the court cited Atkinson and Barnes, but not Pol-

land) “might be read to say that a remand limits the

AOR te PIP ITS TT I

ene

a °

C-4

issues open to consideration on remand only if the opinion

or order directing it so states.” It stated that this was an

incorrect interpretation of those cases: “As made clear in

United States v. Polland, supra, the scope of the remand is

determined not by formula, but by inference from the

opinion as a whole. If the opinion identifies a discrete,

particular error that can be corrected on remand without

the need for a redetermination of other issues, the district

court is limited to correcting that error. A party cannot use

the accident of a remand to raise in a second appeal an

issue that he could just as well have raised in the first

appeal because the remand did not affect it.” Id.

In Husband, the defendant had appealed his convic-

tion, arguing only that his Fourth Amendment rights had

been violated by the manner in which a search had been

conducted. In that first appeal, the Seventh Circuit was

unable to determine from the record whether the search

was reasonable, and accordingly it remanded for further

proceedings. United States v. Husband, 226 F.3d 626, 636

(7th Cir.2000). On remand, the defendant, in addition to

challenging the method of the search, also challenged his

stop and arrest and the validity of a search warrant. On

appeal, the Seventh Circuit held that those matter were

not open on remand. It stated that “[t]he question of

whether an issue was waived on the first appeal is an

integral and included element in determining the ‘scope of

remand.’” United States v. Husband, 312 F.3d 247, 250

(7th Cir.2002). It went on to state that there are two major

limitations on the scope of a remand. First, any issue that

could have been raised on appeal, but was not, is waived

and thus is not remanded. And second, “any issue conclu-

sively decided by this court on the first appeal is not

remanded.” Jd. at 250-51. To determine whether an issue

C-5

falls within the second limitation, the court stated, “the

opinion needs to be looked at as a whole. The court may

explicitly remand certain issues exclusive of all others; but

the same result may also be accomplished implicitly. For

example, ‘[i]f the opinion identifies a discrete, particular

error that can be corrected on remand without the need for

redetermination of other issues, the district covrt is

limited to correcting that error.” Id. at 251 (quoting

Parker, 101 F.3d at 528; other citations omitted). In Hus-

band’s case, the new issues were outside the scope of the

remand because they had not been raised in the first

appeal. Jd.

This Court held that neither Parker nor Husband

precluded consideration of Roach’s renewed motion. First,

Parker specifically reaffirmed Polland, on which the Court

had primarily relied in granting Roach leave to file the

motion. Second and just as importantly, both Parker and

Husband involved attempts to raise on remand issues that

the defendant had not appealed or which he had never

raised prior to the first appeal. The same is not true of

Roach’s renewed motion; it raises the identical issue

addressed in her original motion for downward departure,

seeking only to supplement the record to attempt to cure

the deficiency that led to the reversal. Neither Parker nor

Husband contained any language indicating that a defen-

dant whose sentence was vacated and remanded was

precluded from adducing on remand additional evidence

on the particular issue that was raised and addressed on

appeal. The Court therefore set Roach’s motion for an

evidentiary hearing.

The government now seeks reconsideration, relying on

United States v. Sumner, 325 F.3d 884, 2003 WL 1813835

(7th Cir.2003) (“Sumner II”) and that case’s discussion of

C-6

United States v. Wyss, 147 F.3d 631 (7th Cir.1998). Sum-

ner’s sentence was vacated on his first appeal “because the

district court had not made adequate factual findings

linking his uncharged trafficking of a substantial amount

of crack cocaine to the offense of conviction.” Id., 2003 WL

1813835 at (citing United States v. Sumner, 265 F.3d 532

(7th Cir.2001) (‘Sumner I”)). Though Sumner had not

raised this issue in the district court, the Seventh Circuit

found plain error. Sumner I, 265 F3d at 539-40. On

remand, the district court heard additional evidence and

again ruled in the government's favor. Id. Sumner again

appealed, arguing that the court should not have allowed

new evidence at the remanded sentencing hearing. He

relied (as the government now does in the present case) on

United States v. Wyss, 147 F.3d 631 (7th Cir.1998). In

Wyss, the defendant was convicted of marijuana distribu-

tion, but his sentence was enhanced based on alleged

relevant conduct involving his possession of cocaine. On

appeal, the Seventh Circuit held that cocaine that the

defendant had possessed for personal consumption could

not be included in the relevant conduct analysis. It re-

manded for resentencing, but “because Wyss had specifi-

cally objected to inclusion of the personal-use cocaine in

the relevant conduct determination and the government

had offered no contrary evidence, [the court] held that the

personal-use percentage question was now closed: ‘[t]he

government was entitled to only one opportunity to pre-

sent evidence on the issue.’” Sumner II, 2003 WL 1813835,

at (discussing Wyss).

In Sumner II, the defendant argued that Wyss “stands

for the broad proposition that the government may never

offer new evidence on a sentencing remand. He sees no

difference between an issue that was fully explored at the

C-7

initial sentencing hearing and one that received no atten-

tion, but was nevertheless reviewed on appeal under the

plain error standard.” Jd. The court rejected this argu-

ment, stating that “[s]uch a rule would require the gov-

ernment to anticipate and present evidence on every

conceivable issue that might later be found to constitute

plain error on appeal. This would impose an impossible

burden on the government. Furthermore, it would actually

give the defendant a benefit from plain error review of a

forfeited issue, instead of merely relieving him or her from

the consequences of failure to preserve the issue.” Jd. at

888-89. The court therefore held that “the Wyss rule does

not preclude the government, on a sentencing remand, to

introduce evidence relevant to points that the defendant

forfeited but that were considered on plain error review by

this court.” Jd. at 889.

Roach’s case, of course, does not involve a matter that

was reviewed on appeal via the plain error rule. Rather,

Sumner II’s significance involves on its reference to the

“Wyss rule.” The government construes Wyss, and Sumner

Il’s reference to it, as establishing a general ban on the

introduction of new evidence on remand of a sentencing

where the trial court’s finding on the issue in question was

reversed, after plenary review, based on insufficiency of the

evidence. In this regard, Wyss stands in stark contrast with

Polland, which is not referenced in Wyss, was decided just

three years earlier (in 1995), and was seemingly reaffirmed

in Parker in 1996.

C-8

The question, in this Court’s view, is a close one.’ But

after careful consideration, the Court agrees with the

government; Wyss has effectively overruled Polland.’ The

“Wyss rule,” as we see it, is that if a sentencing factor or

departure motion is fully litigated in the district court, and

the district court’s ruling is reversed due to insufficiency of

the evidence supporting the ruling, then the party bearing

the burden of proof is not entitled to an opportunity to

correct the defect on remand, absent a showing of special

circumstances justifying such an opportunity. The “special

circumstances” exception, though not mentioned in Wyss,

comes from United States v. Leonzo, 50 F.3d 1086, 1088

(D.C.Cir.1995), which the Seventh Circuit cited in Wyss as

supporting its “one opportunity” rule. See also United

States v. Buckley, 251 F.3d 688, 669-70 (7th Cir.2001). We

need not address the specific contours of the exception

here, as Roach has offered no reason why the Wyss rule

should be re‘axed in her case.

Roach argues that Wyss does not apply to this case at

all, because the Seventh Circuit reversed our decision not

because our findings were unsupported by the evidence,

but because the findings were unclear. Were that so, Roach

might be entitled to introduce new evidence on remand;

that is essentially what occurred in Sumner after the

* In this regard, this Court fully wholeheartedly agrees with Chief

Judge Flaum’s comment in Husband that the matter of what is and is

not open on remand is an area fraught with confusion. Husband, 312

F.3d at 250.

* Though the court in Wyss, unlike in this case, had imposed in the

first appeal a specific limitation on the scope of remand, Parker teaches

that the existence or non-existence of such a limitation does not

determine the scope of the remand. Rather, the scope of the remand is

determined based on the overall context of the Court of Appeals’ ruling.

C-9

Seventh Circuit reversed due to the inadequacy of the trial

court’s findings. But Roach has misinterpreted the Sev-

enth Circuit’s decision in her case. The Court of Appeals,

though first indicating that it was unclear whether this

Court had made a sufficient finding on the issue of Roach’s

condition at the time of the offense, went on to say that if

we had made such a finding, it was unsupported by the

evidence. The latter holding is sufficient to bring the Wyss

rule into play. Roach is not entitled on remand to attempt

to plug the gap that the Court of Appeals found in the

original record. Her motion for downward departure is

therefore denied.

The Court closes by saying that though we believe we

have correctly interpreted the pertinent Seventh Circuit

decisions, the matter is not free from doubt. And if we

have correctly read Wyss, it conflicts with the law in

several other Circuits. See, e.g., United States v. Rodgers,

278 F.3d 599, 602 (6th Cir.2002); United States v. Behler,

100 F.3d 632, 635 (8th Cir.1996) (citing Cornelius, 968 F.2d

at 705). We are hopeful that further clarification will be

forthcoming if and when an appeal is taken in the present

case.

Conclusion

For the foregoing reasons, the Court grants the

government's motion for reconsideration and denies

defendant’s renewed motion for downward departure. The

case remains set for sentencing on June 6, 2003 at 1:30

p.m.

D-1

APPENDIX D

296 F.3d 565

United States Court of Appeals,

Seventh Circuit.

UNITED STATES of America, Plaintiff-Appellant,

Elizabeth R. ROACH, Defendant-Appellee.

No. 01-2618.

Argued Dec. 3, 2001.

Decided July 10, 2002.

David E. Bindi (argued), Office of the United States

Attorney Criminal Division, Chicago, IL, for plaintiff-

appellant.

Jeffery B. Steinback (argued), Chicago, IL, for defen-

dant-appellee.

Before POSNER, EVANS, and WILLIAMS, Circuit

Judges.

WILLIAMS, Circuit Judge.

Elizabeth Roach embezzled more than $240,000 from

her employer over a three-year period. She did this in

order to repay significant debt incurred by her excessive

purchases of jewelry and clothes, and to conceal that debt

from her husband. Roach pleaded guilty to one count of

wire fraud in violation of 18 U.S.C. § 1343. At sentencing,

the district court granted her motion under U.S.S.G.

§ 5K2.13 for a downward departure from the applicable

sentencing range, finding that she committed the offense

while suffering from a significantly reduced mental capac-

ity. We conclude that the district court abused its discretion

D-2

in granting the departure, and therefore vacate the sen-

tence and remand the case for resentencing.

I. BACKGROUND

Roach suffers from chronic depression and for most of

her adult life has turned to unnecessary and excessive

shopping to relieve the pain of that depression. For years,

she has undergone psychiatric therapy for this behavior —

which her doctors describe as compulsive shopping — and

for depression. Roach’s shopping binges caused a severe

strain on her marriage, and she consistently engaged in

behavior to hide her binges from her husband, such as

having credit card statements sent to friends’ homes or

manipulating the entries in their checkbook. If her hus-

band tried to prevent her from using their credit cards, she

obtained new ones. Although she and her husband had a

combined annual income of more than $300,000 (and

considerable equity in a condominium in one of Chicago’s

most fashionable neighborhoods), Roach carried tens of

thousands of dollars in credit card debt resulting from

purchases of jewelry and clothes at upscale stores like

Neiman Marcus and Barneys New York. On one occasion

she applied for and obtained a store credit card and

charged $10,000 that same day. Roach said that she was

terrified that her husband would leave her if he discovered

the extent of her shopping and shopping-related debts.

The fraud began soon after Roach was hired by An-

dersen Consulting as an experienced manager and later as

an associate partner earning an annual salary of $150,000.

It started innocently enough, when Roach submitted to

Andersen an expense report seeking reimbursement for

conference registration fees that she had paid using her

D-3

personal charge card. When she was later unable to attend

the conference, the fees were refunded, but by then,

Andersen had already processed her expense request and

reimbursed her for the fees. Although she knew she should

return the money, she realized that keeping the money

provided an opportunity to pay some of her debt and hide

the debt from her husband. After that incident, and

continuing for three years until she was fired, Roach

submitted expense reports that contained hundreds of

incidents of falsified expenses totaling more than

$240,000. The district court summarized these incidents

as follows:

The falsifications took several different forms.

She padded her expense: in approximately 160

instances, obtaining just over $19,000 to which

she was not entitled. On 102 occasions, she sub-

mitted expense reports for reimbursement of air

fares that had actually been billed directly to

Andersen, and in this way she obtained around

$89,000. On twenty-five occasions, Ms. Roach re-

quested reimbursement for conferences that she

had registered for but had not attended, for a to-

tal of over $115,000. On thirteen occasions, she

submitted expense reports for expenses that An-

dersen had already reimbursed, for a total just

short of $16,000. And on three occasions, Ms.

Roach sought and obtained reimbursement for

personal expenses which she falsely labeled as

business expenses, totaling just over $1,200. It

does not appear to the Court that each of these

323 incidents of false reporting represents a

separate expense report; though it is not entirely

clear, it appears that they represent false line

items on a somewhat smaller number of reports,

though the exact amount is not clear to the

Court. The total amount that she obtained from

D-4

Andersen by fraud over the three years from

April 1996 through April 1999 is $241,061.

Roach pleaded guilty to knowingly executing a scheme

to defraud Andersen by use of a wire transmission in

interstate commerce (at least one of the false reports was

sent by email from Philadelphia to Chicago) in violation of

18 U.S.C. § 1343. For purposes of sentencing, the United

States Sentencing Commission Guidelines assign a base

offense level of 6 to that crime. U.S.S.G. § 2F1.1. This base

level was increased by 8 because her fraud involved more

than $200,000, see U.S.S.G. § 2F1.1(b\1\D, and further

increased by 2 levels because her offense involved more

than minimal planning, see U.S.S.G. § 2F1.1(b)(2), result-

ing in an adjusted offense level of 16. The government

agreed that the offense level should be reduced to 13 based

on Roach’s acceptance of responsibility. See U.S.S.G.

§ 3E1.1. With a criminal history category of I,’ the pre-

scribed sentencing range at level 13 is 12-18 months’

imprisonment. U.S.S.G. § 5A. At that range, the minimum

sentence musi be satisfied by imprisonment, without the

use of alternatives such as community confinement or

home detention. See U.S.S.G. 5 4C1.1(f) & cmt. n. 8.

Roach moved for a downward departure from the

guidelines range based on diminished capacity, pursuant

to U.S.S.G. §5K2.13. The district court granted her

motion, finding that her offense was motivated and caused

by her compulsive shopping and depression and that she

had a significantly impaired ability to control her behav-

ior. The court sentenced Roach to five years’ probation, and

* Her only prior conviction was one state shoplifting charge, which

occurred a few months before she was fired by Andersen. She pleaded

guilty and was sentenced to 2 years’ probation.

D-5

imposed, as special conditions of probation, six weeks’

work release at the Salvation Army Center, six months’

home confinement with weekend electronic monitoring,

and a prohibition against Roach’s obtaining any new credit

cards without the court’s permission. The court also

ordered restitution in the amount of $241,061.08" and

imposed a $30,000 fine and mandatory special assessment

of $100. The government appeals the sentence pursuant to

18 U.S.C. § 3742(b\3).

II. ANALYSIS

We review the district court’s decision to impose a

sentence lower than the guideline range for abuse of

discretion, which “includes review to determine that the

discretion was not guided by erroneous legal conclusions.”

Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035,

135 L.Ed.2d 392 (1996). We review for clear error a sen-

tencing court’s resolution of factual questions related to its

decision to depart, United States v. Crucean, 241 F.3d 895,

899 (7th Cir.2001), and will reverse based on clear error

only if “we are left with a ‘definite and firm conviction that

a mistake has been committed.’” United States v. Huerta,

239 F.3d 865, 875 (7th Cir.2001) (quoting United States v.

United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525,

92 L.Ed. 746 (1948)).

Emotional and mental disorders are ordinarily not a

basis for departing from the prescribed sentence. See

U.S.S.G. §5H1.3 (policy statement); United States v.

Pullen, 89 F.3d 368, 370 (7th Cir.1996). A departure may

* The restitution has since been paid in full.

D-6

be warranted, however, if the defendant suffers from a

“significantly reduced mental capacity”:

A sentence below the applicable guideline range

may be warranted if the defendant committed

the offense while suffering from a significantly

reduced mental capacity.... If a departure is

warranted, the extent of the departure should re-

flect the extent to which the reduced mental ca-

pacity contributed to the commission of the

offense.

U.S.S.G. § 5K2.13 (policy statement).’ In its application

note to §5K2.13, the Commission defines “significantly

reduced mental capacity,” as including both cognitive and

volitional impairments:

“Significantly reduced mental capacity” means

the defendant, although convicted, has a signifi-

cantly impaired ability to (A) understand the

wrongfulness of the behavior comprising the of-

fense or to exercise the power of reason; or (B)

control behavior that the defendant knows is

wrongful.

U.S.S.G. §5K2.13, cmt. n. 1. We have interpreted

§ 5K2.13 as requiring that the impairment be both (1)

sufficiently serious and (2) connected to the offense. United

States v. Frazier, 979 F.2d 1227, 1230 (7th Cir.1992); United

States v. Gentry, 925 F.2d 186, 189 (7th Cir.1991).

* The portion of § 5K2.13 omitted here prohibits a departure under

circumstances that the government agrees are not relevant to this case:

if (1) the impairment was caused by the defendant’s voluntary use of

drugs or other intoxicants; (2) the offense involved actual violence or a

serious threat of violence; or (3) the defendant’s criminal history

indicates a need to incarcerate the defendant to protect the public.

U.S.S.G. § 5K2.13.

D-7

A. Connection to the Offense

On appeal, the government does not seriously dispute

the district court’s finding that Roach had a significantly

impaired ability to control her shopping, or that either her

depression or compulsive shopping disorder motivated her

crime. Instead, the government argues that the district

court erred in holding that an impairment that provides

the motive is a sufficient “connection” to the offense under

§ 5K2.13. In the government’s view, for volitional impair-

ments, the compulsive behavior must be the behavior

constituting the offense, and not some other behavior that

explains the motive. We agree with the government that

§ 5K2.13 requires more than a connection between the

impairment and the motive because motive does not

address the critical question — what was the defendant’s

mental capacity when she committed the offense?

We begin with the Eleventh Circuit’s opinion in United

States v. Miller, 146 F.3d 1281, 1286 (11th Cir.1998), which

supports our view that an impairment that provides a

motive is insufficient under § 5K2.13. In Miller, the defen-

dant claimed his compulsion for viewing adult pornogra-

phy caused him to trade in child pornography (the offense

for which he was convicted) because his trade in child

pornography facilitated his acquisition of adult pornogra-

phy. The Eleventh Circuit held that the defendant's

offense of possession of child pornography was no more

related to his compulsion to view adult pornography “than

if he had robbed someone in order to use the proceeds to

purchase adult pornography.” Id. The court explained:

The impulse was related to viewing pornography,

but was not related to the means of obtaining the

pornography. A departure under §5K2.13 re-

quires that the reduced mental capacity contribute

D-8

to the offense. The experts’ testimony merely

showed that the impulse control disorder ex-

plained his interest in adult pornography, but it

failed to establish that the disorder caused him

to trade child pornography, which is the offense

for which he was being sentenced.

Id. Rejecting the district court’s finding that the

defendant had a significantly impaired ability to refrain

from the offense conduct, the court held that the departure

for diminished capacity was improper and vacated the

sentence. Id.

In response, Roach relies on United States v. Sadolsky,

234 F.3d 938 (6th Cir.2000), in which the Sixth Circuit

rejected the argument that, under § 5K2.13, the compul-

sive behavior must be the behavior constituting the

offense. In Sadolsky, the defendant, a compulsive gambler,

defrauded his employer over a six-month period by credit-

ing returned merchandise to his personal credit card. The

district court granted a departure for diminished capacity,

based on the defendant’s claim that he committed the

fraud in order to pay off his gambling debts. On appeal,

the government argued that a departure under § 5K2.13

was not available because the offense at issue was fraud,

and not illegal gambling. The Sixth Circuit disagreed,

holding that § 5K2.13 does not require a “direct link”

between the defendant’s impairment and the crime, noting

that the guideline does not distinguish between impair-

ments “that explain the behavior that constituted the

crime” and impairments “that explain the behavior t’»at

motivated the crime.” 234 F.3d at 943. The court reasoned

that the distinction urged by the government could lead to

“arbitrary” results in cases in which the impairment was

Winn... 2 oo Pee ae

D-9

the “driving force” behind the crime but the connection

with the offense was not “direct”:

For example, under the Government’s theory, if

someone with an eating disorder stole food, he or

she would be entitled to a downward departure

under § 5K2.13. If, however, that same person

stole money to buy food, he or she would not be

entitled to a downward departure. In the latter

situation, the link between the crime, stealing

money to buy food, and the [impairment], an eat-

ing disorder, is no longer technigally direct.

Nonetheless, no one can dispute that the eating

disorder is the driving force behind the crime. Yet

under the Government’s theory, the two indi-

viduals would be treated differently based on a

nebulous distinction between a volitional im-

pairment that causes the conduct that consti-

tutes the crime and a volitional impairment that

explains the motive for the ultimate crime.

Id.

We agree with the Sixth Circuit that the distinction

between “direct” and “indirect” causes does not determine

whether § 5K2.13 applies. The distinction drawn in the

hypothetical posed in Sadolsky is a bit of a straw man,

however. In neither example is the connection between the

impairment and the offense strictly “direct”; one with an

eating disorder presumably has a compulsion to eat, not to

steal. In other words, even in the example of the defendant

who stole food rather than money (a connection thet

Sadolsky labels “direct”), we still don’t know how his

eating disorder was connected to the offense. For example,

did he have money to buy the food but stole it anyway?

Classifying the connection between the impairment and

the offense as direct or indirect does not tell us anything

D-10

about the strength of that connection or indeed whether

the impairment has any relevance in determining the

appropriate sentence.

Likewise, understanding the defendant’s motive does

not necessarily reveal anything about the defendant’s

mental capacity at the time of the offense, which is the

proper focus of the inquiry for purposes of § 5K2.13. See

Frazier, 979 F.2d 1227, 1230 n. 2 (“Section 5K2.13 focuses

the inquiry on the defendant’s mental capacity when she

committed the offense.”) (emphasis in original); United

States v. Greenfield, 244 F.3d 158, 162 (D.C.Cir.2001)

(“defendant’s mental capacity must have been significantly

reduced at the time he committed the offense.”) (emphasis

in original). Although the definition of significantly re-

duced mental capacity does not expressly link volitional

impairments to the offense conduct, referring instead to

the ability “to control behavior that the defendant knows

is wrongful,” § 5K2.13 supplies that link by specifying that

a departure may be considered if the “defendant commit-

ted the offense while suffering from a significantly reduced

mental capacity.” U.S.S.G. § 5K2.13 (emphasis added); see

Frazier, 979 F.2d at 1230 (holding that the district court

incorrectly applied §5K2.13 by granting a departure

without a finding about the defendant’s mental capacity at

the time of the offense); Miller, 146 F.3d at 1285 (“§ 5K2.13

requires that the diminished capacity be linked to the

commission of the offense.”). In this case, the behavior at

issue at the time of Roach’s offense is her submission of

false expense reports, not her shopping.

Similarly, the district court’s finding that Roach would

not have committed the offense had it not been for her

shopping disorder, without more, cannot support the

departure. As we explained in United States v. Dyer, 216

D-11

F.3d 568 (7th Cir.2000), but-for causation is a very weak

sense of causation:

But for [defendant’s] having been born, he

wouldn’t have operated a Ponzi scheme; but it

would be odd, in fact incorrect, to say that his

birth (or the birth of his parents or grandpar-

ents) caused his crime.

216 F.3d at 570. Roach’s compulsive shopping may

well have been a necessary cause of her offense and even,

in the district court’s words, the “driving force” behind it.

But like motive, this finding reveals nothing about Roach’s

mental capacity when she committed the fraud, and

therefore does not establish diminished capacity for

purposes of § 5K2.13.

This is not to say, as suggested by the government’s

argument, that a shopping compulsion could only be

relevant to sentencing for shoplifting, for example, or a

gambling compulsion only to sentencing for illegal gam-

bling. There may well be circumstances when such a

disorder not only provides the motive for the offense, but

also significantly impairs the defendant’s ability to control

the conduct with which she is charged, such as if the

defendant’s impairment had manifested itself in episodes

of significantly reduced judgment or control at the time of

her shopping sprees and also when she committed the

fraud.‘ In sum, section 5K2.13 requires an assessment of

* Sadolsky implies that a departure may be warranted if, because

of financial circumstances, the offense was necessary in order to satisfy

the compulsion. See 234 F.3d at 943 (noting that the defendant had

“maxed out” his credit line before resorting to fraud). Roach does not

make any such argument, so we need not address this question, or

address the government’s argument that a departure under those

circumstances would be barred by U.S.S.G. § 5K2.12, which states that

(Continued on following page)

D-12

the defendant’s mental capacity at the time of the offense.

It is in making this assessment that the district court’s

analysis and findings fall short.

B. Evidence of Roach’s Mental Capacity

In concluding that the departure was warranted, the

district court found, “[i]n the words of Guidelines § 5K2.13

and its application notes,” that “Roach committed the

offense while suffering from a significantly reduced mental

capacity, in that she had a significantly impaired ability to

control behavior that she knew was wrongful.” It is not

entirely clear from the court’s opinion whether this finding

includes Roach’s ability to control her conduct at the time

of her offense — that is, her submission of fraudulent

expense reports. If it does not, the departure was, as we

just explained, an incorrect application of § 5K2.13. But to

the extent the judge’s conclusion can be read to include a

finding that Roach had a significantly impaired capacity to

control her conduct at the time of the offense, it is unsup-

ported by the evidence and clearly erroneous.

The district court had before it statements from

doctors who examined Roach, as well as evidence about

Roach’s history relating to her compulsive shopping binges

and the activities surrounding those binges. The district

court found that Roach was “not able fully to control the

things she did in order to allow her to continue to carry

out [her shopping] compulsion,” pointing to evidence that

she had consistently engaged in activities to “facilitate and

conceal” her shopping, such as paying for groceries with

“personal financial difficulties and economic pressure upon a trade or

business do not warrant a decrease in sentence.”

D-13

checks written for amounts above the purchase amount,

obtaining new credit cards, having bills sent to friends’

houses, and borrowing money from relatives to pay her

credit card debt. While this evidence might perhaps

indicate a lack of control with respect to those (lawful)

activities, it does not shed light on her mental capacity at

the time she engaged in the fraudulent conduct.

The doctors’ statements are similarly inadequate to

support a finding that Roach had a significantly impaired

ability to control her conduct at the time of her offense. Dr.

Jeffrey Roth, a psychiatrist who treated Roach, did not

offer an opinion on that subject, but stated that “it is a

consistent diagnostic criterion that these individuals [who

suffer from compulsive shopping disorders] can desper-

ately commit illegal acts such as forgery or theft to finance

their illness and hide their debt from family and others.”

Notably missing from Dr. Roth’s statement is any conclu-

sion that this aspect of the disorder even applies to Roach

or, if it did, any assessment of the role it played at the time

of her offense. Cf. Greenfield, 244 F.3d at 163 (expert's

testimony that “if a depression is severe enough, ... it

could significantly reduce someone’s mental onnaciey?

could not support a departure under § 5K2.13).

Unlike Dr. Roth, Dr. Robert Galatzer-Levy, who

evaluated Roach at the request of the defense, did con-

clude that Roach had a significantly reduced mental

capacity both during her shopping binges and when she

submitted the false expense reports:

During both the compulsive shopping and the

commission of the charged offense Mrs. Roach

appears to have been functioning in a dissociated

state in which information about the legal, prac-

tical and moral consequences of her actions was

D-14

not effectively available to her. This constitutes a

significant reduction in her mental capacity at

the time of commission of the charged offense.

With respect to his conclusion about Roach’s mental

state while shopping, Dr. Galatzer-Levy explained his

reasoning, which the district court summarized as follows:

[Clompulsive shopping is one of several ways

that persons suffering from severe depression at-

tempt to relieve the effects of their depression.

Other such “self-medicating” activity of this type

can include alcohol consumption, compulsive eat-

ing, gambling, or sexual activity. Some research-

ers believe that this type of behavior temporarily

increases the person’s available level of sero-

tonin, a neurotransmitter that, among other

things, determines the extent and severity of de-

pression, and thus provides temporary relief

from the person’s symptoms. During this activity,

the person is in a dissociative state in which in-

formation that ordinarily would influence the

person’s behavior does not do so. In short, the

types of concerns that would prevent most people

from engaging in such activity, such as recogni-

tion of the financial implications, disapproval of

family members, or simple common sense, are

simply not at work.’

By contrast, Dr. Galatzer-Levy offers no explanation of

the reasoning behind his conclusion that Roach had a

significantly impaired ability to control her behavior at the

time of her offense. His statement fails to reconcile its

apparent inconsistency with Roach’s own statements that

* Dr. Arnold Goldberg offered a similar opinion about Roach’s

mental state during her shopping binges.

D-15

she began the fraud after inadvertently discovering that

she could be paid by her employer for expenses relating to

conferences she had cancelled. According to Roach, she

kept the money after realizing that it was a way to pay off

her debt and conceal it from her husband. Given these

statements, the episodic nature of her impairment, and

the fact that Roach had “self-medicated” her depression

and compulsively shopped for more than ten years without

any criminal activity, the analytic leap from a shepping

compulsion to a significantly impaired ability to control

fraudulent conduct spanning three years is too great to

make without supporting reasons or evidence. Dr. Ga-_

latzer-Levy’s naked conclusion about Roach’s mental state

at the time of the offense is therefore entitled to little, if

any, weight. See Mid-State Fertilizer Co. v. Exch. Nat'l

Bank, 877 F.2d 1333, 1339 (7th Cir.1989) (“An expert who

supplies nothing but a bottom line supplies nothing of

value to the judicial process.”).

Dr. Paul Pasulka’s report, prepared at the request of

the government, is similarly unhelpful. Dr. Pasulka

concludes that Roach was not fully able to control unspeci-

fied wrongful behavior, but does not say that her impair-

ment was significant. Like Dr. Galatzer-Levy, Pasulka

supplies little in the way of evidence or reasoning support-

ing his conclusion, and his only observation about Roach’s

offense conduct — that she defrauded her employer in an

attempt to hide her behaviors — tends to undermine,

rather than support, a finding that Roach had a signifi-

cantly impaired capacity to control her conduct at the time

of the offense.

D-16

Ill. CONCLUSION

We have no doubt that Roach’s depression and shop-

ping have had a profound impact on her life. In this way

she is like countless criminal defendants who come before

the court from all walks of life with a wide variety of

personal characteristics that suggest a basis for lenieicy.

The sentencing guidelines, however, significantly limit a

district court’s ability to fashion | a sentence based on

such considerations. Those guidelines prescribe a particu-

lar sentencing range, which in this case was driven by the

magnitude of Roach’s fraud. We are mindful that our

review of the district court’s decision to impose a sentence

below this range is deferential, but are convinced that the

court abused its discretion in granting a downward depar-

ture based on § 5K2.13. Its findings on Roach’s motive do

not establish the critical issue of her mental capacity at

the time of the offense, and on that issue, there is no

evidence to support the court’s conclusion that Roach had

a significantly impaired ability to control her behavior.

Roach’s sentence is therefore VACATED and the case

REMANDED for resentencing.

te te

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