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UNITED STATES v. SPEIGHT

December 12, 1989

UNITED STATES OF AMERICA
v.
JAMES R. SPEIGHT, Defendant



The opinion of the court was delivered by: OBERDORFER

 LOUIS F. OBERDORFER, UNITED STATES DISTRICT JUDGE

 Defendant, a thirty-three year old male, was charged with drug and firearm related offenses in a six-count indictment in 1988. He pled guilty to two counts of the indictment: unlawful possession with intent to distribute 50 grams or more of cocaine base (21 U.S.C. § 841(a)), and possession of firearms after conviction of a felony (18 U.S.C. § 922(g)). Crim. No. 88-0245. Defendant also pled guilty to the indictment in a related case on the single count of failure to appear (18 U.S.C. § 3146). Crim. No. 89-0152. The sentences imposed for these offenses are governed by the Federal Sentencing Guidelines. However, because defendant's long history of mental illness establishes that he acted with significantly reduced mental capacity at the time he committed the offenses, departure from the Guideline range applicable to his offenses is warranted.

 Eleven years ago, defendant, then a 22-year old Staff Sergeant in the U.S. Army, began to experience mounting difficulty with mental illness. At that time, defendant had served honorably for five years and received various commendations for outstanding service. His problems with mental illness caused the Army to diagnose him as schizophrenic and to honorably discharge him on a 90% disability pension. According to a May 21, 1979 report of Medical Board Proceedings at Fort Gordon, Georgia, defendant suffered from the following medical condition:

 
Schizophrenia, latent type, acute, moderate; manifested by emotional turmoil, episodic acute anxiety with hyperventilation, somatic complaints, labile affect, confusion, pressured speech, episodic outbursts of rage, fear of inability to control his thoughts; minimal precipitating stress of routine military duty; considerable predisposition of premorbid obsessive-compulsive personality . . .

 Report on Medical Board Proceedings, U.S. Army, Fort Gordon Georgia (May 21, 1979). Significantly, the 1979 Army report found defendant to be drug free. Id. at 3. In addition, the report noted that defendant suffered serious side effects from Thorazine, which was being administered to him to control his mental illness. Id. at 4.

 The Army's diagnosis of schizophrenia was confirmed by a Veterans Administration determination that defendant was entitled to a full disability pension, of which 50 percent was attributable to mental illness. Presentence Report (July 27, 1989), at 13. Thereafter, he began to use cocaine, became addicted, and began to distribute in order to feed his habit. Id. at 12. A psychiatric evaluation conducted earlier this year at a hospital in North Carolina confirmed defendant's history of schizophrenia but found him to be on psychotropic medicine and in remission at the time of the examination. Psychiatric History/Evaluation & Discharge Summary of Speight, James Russell, Dorothea Dix Hospital (Apr. 18, 1989), at 3. That evaluation also noted that defendant had a history of drug abuse. Id. at 1, 3.

 Defendant was originally sentenced on July 27, 1989. On August 1, 1989, however, the sentence imposed was vacated because of the difficult questions involved in aspects of the sentencing. An Order dated August 3, 1989 required an independent psychiatric evaluation of defendant to be performed by Dr. David Pickar, a branch chief in research psychiatry at the National Institute of Health *fn1" and another round of briefing on the sentencing issues. Subsequently, on September 21, 1989, the Court appointed an amicus curiae to file a brief on the sentencing issues, as well. Defendant was resentenced on December 1, 1989, following the submission of a presentence report and a supplemental presentence report, a psychiatric evaluation, and three very helpful sets of memoranda from counsel for the defendant and the government, as well as the well-reasoned and comprehensive memorandum submitted by amicus. The sentence imposed at that time was based on reasons stated from the bench and in a memorandum to be filed. This is that memorandum.

 I.

 The offenses to which defendant pled guilty stem from a search warrant executed by the Metropolitan Police Department officers and agents of the Bureau of Alcohol, Tobacco and Firearms on June 2, 1988. On that date, police officers seized a total of 182 grams of cocaine base, narcotics paraphernalia, and two loaded firearms. Presentence Report at 3-4. Thereafter, defendant was indicted on six drug and firearm related offenses. The government agreed to dismiss the remaining charges in this case, including Count IV, which charged use of a firearm in the aid of a drug trafficking crime (18 U.S.C. § 924(c)), in return for defendant's plea of guilty on the two offenses now at issue.

 Defendant's plea of guilty constitutes his third drug distribution felony. In 1982, he was convicted and pled guilty to his first such offense. At that time he enjoyed the privilege of having execution of his sentence suspended. In 1988, a few weeks after he was charged with the instant offense and was released on bond, he was arrested in North Carolina on charges of drug distribution. He pled guilty to the North Carolina offense prior to the sentencing in these cases and is presently serving a ten-year sentence in that state.

 Because of the serious nature of defendant's offense and the fact that he is a repeat offender, if the Guidelines were applied without adjustment, defendant would be obligated to serve a minimum of 237 months, or 19 and 1/2 years, and a maximum of 301 months, or 25 years, with no parole for the instant crime. *fn2" This sentence would have to be served consecutively to his ten year North Carolina prison term, placing his total term of imprisonment at between 30 and 35 years. He would therefore be between 62 and 68 years old when released. If defendant were fully responsible for his actions incarceration for this period of approximately 35 years (inclusive of 10 years in North Carolina) plus a 5-year special parole term would be not only lawful but appropriate according to the standards that now obtain with respect to drug offenses. Harsh sentences are a necessary element in the effort to combat the scourge of drug trafficking which plagues the Nation. However, defendant's mental illness requires, and the Guidelines and relevant statutes permit, significant mitigation in his case.

 At a hearing held in the course of the reconsideration of defendant's original sentence, Dr. Pickar testified that defendant, while not suffering from schizophrenia at this time, suffers from the related disorder of schizophreniform, a serious mental illness which could significantly reduce his mental capacity. Transcript at 10-11 (Oct. 23, 1989). Dr. Pickar testified that it was his expert medical opinion that this mental illness caused defendant to suffer from reduced mental capacity at the time the offenses were committed. Id. at 13. Dr. Pickar also noted defendant's history of drug abuse and cocaine addiction. Id. at 26-35, 55-56. According to Dr. Pickar, it was his opinion that defendant's mental condition and his reaction to psychotropic medication contributed to his drug use and aggravated it, and that his drug use contributed to and aggravated his mental condition as well as his criminal conduct. Id. at 13-14, 18-19, 26-35, 46-51, 55-56.

 II.

 Under the Federal Sentencing Guidelines, Count II of the indictment to which defendant pled guilty, possession with intent to distribute, places him in an offense level of 34. § 2D1.1(a)(3). In addition, defendant has two prior felony convictions that enhance his offense level. His first, for his 1982 drug distribution offense on which he was sentenced to probation, yields 1 criminal history point. § 4A1.1(c). His second, for his North Carolina offense on which he was sentenced to ten years of imprisonment, yields 3 criminal history points. § 4A1.1(a). Accordingly, defendant's total of 4 criminal history points place him in criminal history category III. His base sentence on Count II therefore falls within a Guideline range of from 188-235 months on the possession charge alone. § 5A.

 The Guidelines provide for two adjustments to this base sentence that are at issue here. On the distribution charge, the Guidelines would reduce the Guideline range if defendant demonstrates acceptance of personal responsibility for his criminal conduct. § 3E1.1. Defendant's observable remorse and his forthright admission of his involvement at the time of the original sentencing on July 27, 1989, as well as his plea of guilty demonstrates his acceptance of responsibility. Moreover, defendant's conduct throughout the proceedings, and particularly his tearful reaction to Dr. Pickar's testimony about his lost opportunities in the Army as a result of mental illness provide clear indications that defendant feels strong remorse for his actions. See Transcript at 32 (Oct. 23, 1989). Defendant is therefore entitled to a two-point adjustment for acceptance of responsibility, reducing the applicable offense level to 32.

 Also at issue here is an enhancement of the drug trafficking charge on account of the presence of dangerous weapons during commission of the offense. § 2D1.1(b)(1). Defendant challenges the enhancement on the ground that he pled guilty to possession of a firearm rather than to use of a firearm in aid of a drug trafficking crime. The Guidelines indicate, however, that the presence of a weapon during the commission of an offense triggers the enhancement unless it is clearly improbable that the weapon was connected with the offense. § 2D1.1, Application note 3. The unexplained presence of weapons at a home owned and controlled by defendant at which drug trafficking took place requires enhancement by two levels, restoring the offense level to 34. Defendant therefore remains within a Guideline range of 188-235 months.

 III.

 The central question here is posed by defendant's contention that his mental illness warrants departure from the presumptive Guideline range. He invokes ...


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