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UNITED STATES v. ROYAL

October 24, 1995

UNITED STATES OF AMERICA, Plaintiff,
v.
LLOYD ROYAL, Defendant.



The opinion of the court was delivered by: KESSLER

 I. Introduction

 The Defendant, Lloyd Royal, Jr., was convicted on April 7, 1995, following a jury trial, of two counts of interstate transportation of stolen property in violation of 18 U.S.C., Section 2314. He is before the Court for sentencing.

 The property stolen by the Defendant consisted of books which were part of the Sterling Brown collection and which were donated to Howard University. Sterling Allen Brown was an author and part of the "Harlem Renaissance" during the 1920's and early 1930's. For approximately forty years until his retirement in 1969, Sterling Brown was also a Professor of Literature at Howard University, where he specialized in American and Afro-American literature. Prior to Sterling Brown's death in 1989, Sterling Brown and his family arranged for his collection of over 10,000 books to be entrusted to Howard University. Though Howard University has maintained supervision over this collection, the collection was willed to Sterling Brown's son, who remains the rightful owner of the collection. Howard University claimed that approximately 1,641 books were taken from the Sterling Brown collection. Approximately $ 115,645.00 worth of books are still missing from the collection, Mr. Royal returned approximately $ 75,250.00 worth of books.

 Lloyd Royal has no previous criminal history. It is undisputed that this crime, of which he has been convicted, is an aberration in a life that has otherwise been criminally untarnished, In fact, Mr. Royal has led an exemplary life: he received both undergraduate and graduate honors as a student at Howard University; he was a student member of the Howard Board of Trustees; and he served ten years in the military leaving with an honorable discharge.

 II. Analysis

 Under the U.S. Sentencing Guidelines, the basic offense level for this crime is 4; the fact that the loss exceeded $ 120,000.00 increases it by 9 levels; the fact that the offense involved more than minimal planning increases it by 2 levels; and the fact that the Defendant has denied any criminal participation in the instant offense excludes any reduction of two levels for acceptance of responsibility, and results in a final offense level of 15. The Defendant's Criminal History Category is I. Hence, the guideline range requires imprisonment of 18 to 24 months. Under U.S.S.G. Section 5B1.1, Application Note 2, Mr. Royal is ineligible for probation. Under U.S.S.G. Sections 5D1.1(a) and 5D1.2(b)(2), the Court is required to impose a term of supervised release of at least 2 but not more than 3 years. Under U.S.C.G. Section 5E1.2(c)(3), the fine range for this offense is $ 4,000.00 to $ 40,000.00.

 In its Presentence Report, the United States Probation Office noted that U.S.S.G. Section 5K2.13 warrants a downward departure and recommended that "a sentence of imprisonment would serve no purpose (e.g., the defendant will not be deterred from further criminal behavior, because he does not believe that he has done anything wrong)." Presentence Report at 17. *fn1" Defendant, of course, agrees.

 U.S.S.G. Section 5K2.13 provides that the guideline sentence may be departed from when the defendant suffers from 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 defendant's criminal history does not indicate a need for incarceration to protect the public. *fn2"

 Mental capacity, for the purpose of the Sentencing Guidelines, "connotes an impairment of the intellect, a failure to be able quickly or fully to grasp ordinary concepts" and includes "both organic dysfunction and behavioral disturbances that impair the formation of reasoned judgments." U.S. v. Cantu, 12 F.3d 1506, 1512 (9th Cir. 1993). The court noted that "other circuits are unanimous in holding that the disorder need be only a contributing cause, not a but-for cause or a sole cause, of the offense." Id. at 1515. Finally, relying on this Circuit's opinion in U.S. v. Chatman, 300 U.S. App. D.C. 97, 986 F.2d 1446, 1454 (D.C. Cir. 1993), the Cantu court pointed out that the "inquiry into the defendant's mental condition and the circumstances of the offense must be undertaken with a view to lenity, as section 5K2.13 implicitly recommends.'" 12 F.3d at 1511.

 The government argues that this Court should refuse to depart downward to any "substantial" or "significant" degree because the Defendant cannot establish that his mental illness significantly caused him to steal the books and later sell some of those books for profit. While the government acknowledges Defendant's history of mental illness, it nonetheless contends that such illness contributed only minimally to the commission of these crimes and that his actions were primarily the result of his desire for profit. At most only a minimal downward departure may be appropriate under Section 5K2.13 of the Guidelines, in the Government's view.

 Defendant argues that a downward departure is amply warranted in this case, given the nature of Defendant's mental illness, his full cooperation in this case, his otherwise unblemished record, and the very purpose of U.S.S.G. Section 5K2.13. Defendant argues vigorously that only impaired judgment and delusional thinking could have led him to believe ...


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