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UNITED STATES v. BLACKWELL

August 6, 1995

UNITED STATES OF AMERICA,
v.
TRACY BLACKWELL, Defendant.



The opinion of the court was delivered by: LOUIS F. OBERDORFER

 On July 7, 1995, for reasons some of which were stated from the bench, defendant was sentenced to a term of fifteen months. This Memorandum is submitted in further exposition of that ruling. As will be more fully developed below, defendant faced a guideline sentence of sixty months. She moved for a downward departure on the authority of guidelines §§ 5K2.13, 5K2.0, and 5C1.2.

 I.

 Defendant was arrested on July 20, 1994, at the Greyhound Bus Terminal in the District. She was returning from a one-day trip to New York with her boyfriend of one year, Frank Tucker, when a police officer found 303.2 grams of cocaine base in her backpack and $ 600 in cash in her purse. Defendant claims that Tucker made all the arrangements, obtained the drugs himself out of her presence, and gave them to her to carry on the trip back from New York. Tucker has not been charged in this case. Defendant pled guilty to conspiracy to possess with intent to distribute fifty grams or more of cocaine base pursuant to 18 U.S.C. § 371.

 In support of her request for a downward departure, defendant has proved, by a preponderance of the evidence gleaned from the presentence report and the testimony of experts, the following facts: Defendant, a twenty-seven-year-old black woman, is the single mother of six young children. The children range in age from ten to four years old, and the youngest has eye problems and needs medical care. Five of the children presently live with defendant's mother, whose high blood pressure and heart condition make it difficult for her to continue caring for her grandchildren.

 Undisputed facts stated in the presentence report disclose that defendant has no criminal history and no history of violent behavior or of drug or alcohol abuse. During the period that defendant was on release in this case, she was not rearrested and she was employed. Moreover, defendant's family members are law-abiding, stable people with no known criminal history. Defendant's mother is fifty-four years old, worked her entire life, was never on public assistance, and raised her family in the church. Defendant's two oldest brothers are employed.

 The presentence report was supplemented by testimony adduced at a hearing on March 22, 1995. Dr. R. Bronson Levin, who performed a psychological evaluation of defendant, testified that defendant has an IQ of 73, which is at the bottom three percent of the population and in the range of borderline mental retardation. According to Dr. Levin, defendant has a meek and dependent personality, is easily manipulated and dominated by others, and has poor analytical abilities. Dr. Richard E. Lawrence, who evaluated defendant at the request of the probation department, agreed that defendant has a dependent personality and allows others to make decisions for her. Dr. Lawrence also confirmed that defendant is of borderline intelligence, with an IQ of 75.

 II.

 The base offense level for the conspiracy to which defendant pled guilty is the same as if the object of the conspiracy had been completed. See U.S.S.G. § 2X1.1. In this case, defendant conspired to possess with intent to distribute 303.2 grams of cocaine base; the base offense level is therefore 34. See id. § 2D1.1(a)(3). With a two-point adjustment for acceptance of responsibility, the total offense level is 32. See id. § 3E1.1(a). Defendant has no known previous criminal convictions. Thus, the guideline range is 121 to 151 months.

 III.

 Defendant bears the burden of proof, by a preponderance of the evidence, with respect to whether a downward departure is warranted. See U.S. v. Salmon, 292 U.S. App. D.C. 184, 948 F.2d 776, 779 (D.C. Cir. 1991). Defendant has met this burden and has proved that several factors support a substantial downward departure. First, defendant's palpably diminished capacity, as evidenced by expert testimony and by her own rather vacant behavior, is a relevant consideration when deciding whether to grant a downward departure. Section 5K2.13 of the guidelines allows a downward departure for diminished capacity:

 
If the defendant committed a non-violent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants, a lower sentence may be warranted to reflect the extent to which reduced mental capacity contributed to the commission of the offense, provided that the ...

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