MARK W. BENNETT, District Judge.
TABLE OF CONTENTS
I. INTRODUCTION ..................................................1169
II. ANALYSIS ......................................................1170
A. Sentencing Methodology ....................................1170
B. Addiction as a Mitigating Factor under § 3553(a) ..........1171
1. Addiction and culpability .............................1171
2. Addiction and district courts' post-Gall discretion ...1176
III. CONCLUSION ....................................................1179
As a federal judge with two decades of experience sentencing drug-addicted criminal defendants, the quote above, from the director of the National Institute on Drug Abuse, evokes both optimism and dismay. On one hand, it reflects society's progress in understanding addiction as a public-health problem. On the other hand, it is a sobering reminder that advances in science continue to outpace advances in law. While science may have changed our views on drug abuse, the law still responds to drug abusers with punitive force, rather than preventative or therapeutic treatment.
Just as science and the law treat addiction differently, so too do federal judges. In particular, judges disagree about whether a defendant's addiction mitigates his or her culpability, and whether a defendant's addiction may support a downward variance under 18 U.S.C. § 3553(a). I recently attended a seminar for federal district court judges where I was reminded that some judges believe that addiction cannot be mitigating because it is so common among defendants, especially those being sentenced for drug crimes. In defending this view, one judge commented: "Addiction in drug cases is not outside the heartland." The "heartland" refers to the "set of typical cases embodying the conduct that [a particular sentencing] guideline describes." U.S.S.G. Ch. 1, Pt. A, intro. comment. 4(b). I respectfully disagree with the view that addiction can be mitigating only if it is outside the heartland or extraordinary. I write to explain my view that drug addiction is generally mitigating, especially in cases, like this one, where the defendant is both young and has been addicted to drugs throughout adolescence and most of his early adulthood.
Defendant Kailab Hendrickson (Hendrickson) is before me for sentencing. On February 4, 2014, Hendrickson pleaded guilty to one count of possessing stolen firearms, in violation of 18 U.S.C. § 922(j). Specifically, Hendrickson stole 15 firearms — including rifles, shotguns, and a pistol — from a house that he burglarized in August of 2013. Hendrickson hid the firearms at his mother's and step-father's home, where federal agents later discovered them. Hendrickson told the agents that, before the burglary, he had been drinking at a bar, where he got into an altercation with another man. Hendrickson then left the bar and broke into a house looking for drugs. He found 15 guns and a bow instead. He stole the weapons, hid the guns at his relatives' home, and gave the bow to someone else to settle a $400 methamphetamine debt.
Hendrickson is a 23-year-old young man with an unfortunate history of abusing multiple drugs and making impulsive decisions. He began using alcohol, marijuana, and methamphetamine when he was just 14 years old. He admits that he is addicted to both marijuana and methamphetamine. Before his arrest in this case, Hendrickson used marijuana as often as he could, and used methamphetamine daily since 2012. Hendrickson also suffers from ADHD. These facts are uncontroverted.
Along with Hendrickson's drug addictions came criminal behavior. At age 14 and 15, Hendrickson was adjudicated for Burglary 3rd Degree and Possession of Marijuana. At ages 16 and 17, he participated in two outpatient substance abuse programs, but continued abusing drugs. Hendrickson was then placed in a residential substance abuse program where he attempted to deliver methamphetamine to the other participants. Hendrickson was adjudicated for Possession of Methamphetamine with Intent to Deliver, and was committed to a state training school for boys. The training school discharged him one month before his 18th birthday. Hendrickson's poor decision-making continued as a young adult. At ages 21 and 22, he was convicted once for Trespass, three
In light of these facts, I must now determine what sentence is appropriate for Hendrickson.
In determining a criminal defendant's sentence, I follow the methodology outlined by the Eighth Circuit Court of Appeals:
United States v. Hill, 552 F.3d 686, 691 (8th Cir.2009) (quoting Gall v. United States, 552 U.S. 38, 49-50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)) (internal citations omitted).
The Supreme Court has recognized that a party's argument for a sentence outside the calculated Guidelines range may "take either of two forms." Rita v. United States, 551 U.S. 338, 344, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). A party may "argue within the Guidelines' framework, for a departure," id., or a party may "argue that, independent of the Guidelines, application of the factors set forth in 18 U.S.C. § 3553(a) warrants a [different] sentence."
As a matter of procedure, the Eighth Circuit Court of Appeals has instructed that district courts should "continue to engage in the three-step process of first ascertaining the applicable Guidelines range, then considering any permissible departures within the Guidelines' structure, and finally, deciding whether a non-Guidelines sentence would be more appropriate under the circumstances pursuant to § 3553(a)." United States v. Washington, 515 F.3d 861, 866 (8th Cir.2008).
Applying this methodology here, I first calculate Hendrickson's Guidelines range. Hendrickson's base offense level is 12. U.S.S.G. § 2K2.1(a)(7). He gets a four-level enhancement for possessing between 8 and 24 stolen firearms, id. § 2K2.1(b)(1)(B), a four-level enhancement
Neither party moves for a departure under the Guidelines or a variance under § 3553(a). Instead, the Government requests a sentence at the high end of Hendrickson's Guidelines range, and Hendrickson requests a sentence at the low end. The fact that neither party requests a variance, however, does not limit my discretion to grant a variance. In fact, I have an independent duty to weigh the § 3553(a) factors and fashion a sentence that is sufficient, but not greater than necessary, to achieve the goals of federal sentencing. See Freeman v. United States, ___ U.S. ___, 131 S.Ct. 2685, 2692, 180 L.Ed.2d 519 (2011) (plurality opinion) (noting that the district court has an "independent obligation to exercise its discretion" in fashioning a sentence, even where the parties agree on a sentence). Sometimes my independent analysis results in a lower sentence for a defendant. Other times it results in a higher one, as was the case in another sentencing held the same day as Hendrickson's. At bottom, my concern is fulfilling my obligation to independently weigh the § 3553(a) factors to determine if a non-Guidelines sentence is appropriate. I analyze those factors, especially those related to Hendrickson's history of addiction, below.
Under § 3553(a), I must "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [18 U.S.C. § 3553(a)(2)]." Section 3553(a)(2) provides:
In determining whether a sentence is "sufficient, but not greater than necessary," I must consider, among other factors, "the nature and circumstances of the offense and the history and characteristics of the defendant[.]" 18 U.S.C. § 3553(a)(1).
As I discussed above, Hendrickson's history and characteristics reveal that he has struggled with drug abuse and addiction since age 14. This addiction continued through Hendrickson's young adulthood, as he abused marijuana frequently and methamphetamine daily. Under § 3553(a), I must consider what effect, if any, Hendrickson's addiction should have on his sentence.
In considering the impact of Hendrickson's addiction, I begin where this opinion began, recognizing that science offers important insights into how addiction affects people. "As a result of scientific research, we know that addiction is a disease that affects both brain and behavior."
"[Drug addiction] is considered a brain disease because drugs change the brain — they change its structure and how it works."
A recent study suggests that drug abuse damages a person's orbitofrontal cortex (OFC) — the brain region responsible for evaluating hasty decisions — impairing the person's judgment, especially regarding a decision's long-term consequences.
By changing the brain, addiction affects a person's thinking and behavior.
Taken together, this scientific evidence speaks to a fundamental issue at sentencing: culpability. One of the goals of sentencing is retribution — the notion that one's punishment should be proportional to his or her offense. See Black's Law Dictionary (9th ed.2009) (defining lex talionis — the principle of retribution — as "[t]he law of retaliation, under which punishment should be in kind — an eye for an eye, a tooth for a tooth, and so on — but no more"). Section 3553(a) promotes this goal, requiring that each sentence "reflect the seriousness of the offense ... [and] provide just punishment for the offense...." 18 U.S.C. § 3553(a)(2)(A). "The heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender." Tison v. Arizona, 481 U.S. 137, 149, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). And, in evaluating a defendant's personal culpability, I must consider the history and characteristics of the defendant.
The answer, at least in most cases, is that addiction mitigates a defendant's culpability. By physically hijacking the brain, addiction diminishes the addict's capacity to evaluate and control his or her behaviors. Rather than rationally assessing the costs of their actions, addicts are prone to act impulsively, without accurately weighing future consequences. This is certainly true for Hendrickson, whose criminal history coincides with, and directly relates to, periods of drug abuse. During allocution, in a moment of self-reflection, Hendrickson noted that "drugs clouded my mind and motivated me to do things I would never do had I been sober." Hendrickson, therefore, acknowledges that drugs diminished his capacity to make good decisions — something both defense counsel and the AUSA acknowledge, too.
The capacity to evaluate the consequences of one's actions is central to one's culpability. This is why we consider the defendant who commits a crime during a momentary lapse in judgment less blameworthy than the defendant who commits a crime after a period of sober calculation. Even the United States Sentencing Guidelines recognize that a defendant's reduced mental capacity may warrant a lesser sentence.
Additionally, addiction is mitigating for much the same reasons that the United States Supreme Court has recognized youth is mitigating. For example, in Graham v. Florida, 560 U.S. 48, 68, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the Court noted that a juvenile's "transgression is not as morally reprehensible as that of an adult" (citations and internal quotations marks omitted). This is because "developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence." Id. Similarly, in Roper v. Simmons, 543 U.S. 551, 569, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), the Court noted that "scientific and sociological studies... tend to confirm [that a] lack of maturity and an underdeveloped sense of responsibility
Just as there are fundamental differences between the juvenile and adult brain, so too are there fundamental differences between the addict and non-addict brain. Because of these differences, addicts, like juveniles, tend to make "impetuous and ill-considered" decisions. Thus, for the same reasons juveniles are generally less culpable, so too are addicts.
This is not to say, however, that addiction is limitlessly mitigating. For example, addiction may not be mitigating, or may be less mitigating, where there is no nexus between the defendant's addiction and offense; or where the defendant has had numerous opportunities for treatment and has either declined drug treatment or failed to meaningfully attempt to complete drug treatment. Also, there may be some point at which a defendant no longer gets the "benefit" of addiction-based mitigation — like the defendant who, after sentencing, repeatedly violates his or her terms of supervised release by using drugs or alcohol. Addiction could even be aggravating in certain situations. Each case must be carefully considered on its own and all of the § 3553(a) factors must be balanced.
In balancing the § 3553(a) factors here, I find that Hendrickson's addiction is mitigating, especially when considered together with Hendrickson's youth. Hendrickson has been addicted to drugs since he was 14 years old. He is now only 23 years old. Hendrickson has abused brain-altering drugs through most of the years during which his adolescent brain was still physically developing.
The Government concedes that I "can view [Hendrickson's] claimed drug addiction and ADHD impulsivity as mitigating factors in determining [his] sentence" (docket no. 34, at 2). But the Government
In sum, because addiction is a serious brain disease that diminishes one's capacity to evaluate decisions and regulate behavior, I consider addiction to be a generally and substantially mitigating factor under § 3553(a)(1), weighing in favor of a downward variance here. I next consider, more specifically, district courts' discretion to consider a defendant's addiction in varying below a Guidelines sentence.
The Eighth Circuit Court of Appeals has recognized that a district court may grant a downward variance under § 3553(a) based on a defendant's addiction. But, before 2007, those variances were limited to cases involving "extraordinary circumstances." See United States v. Hodge, 469 F.3d 749, 757 (8th Cir.2006) ("[D]rug addiction is not a proper basis for sentencing a defendant below the advisory Guidelines range, absent extraordinary circumstances."); United States v. Likens, 464 F.3d 823, 826 (8th Cir.2006) ("Age and drug addiction or abuse are not ordinarily extraordinary circumstances [justifying a variance]."); United States v. Lee, 454 F.3d 836, 839 (8th Cir.2006) ("Drug addiction or abuse is not a proper reason to impose a downward variance, absent exceptional circumstances."). In imposing the "extraordinary circumstances" requirement, the Eighth Circuit Court of Appeals relied on 18 U.S.C. § 3553(a)(5), which provides that district courts, "in determining the particular sentence to be imposed, shall consider ... any pertinent policy statement ... issued by the Sentencing Commission...." The policy statement in U.S.S.G. § 5H1.4 provides that "[d]rug or alcohol dependence or abuse ordinarily is not a reason for a downward departure." Because policy statements like § 5H1.4 are "relevant factors" under § 3553(a)(5), the Eighth Circuit Court of Appeals required district courts to articulate extraordinary circumstances justifying an addiction-based variance. Hodge, 469 F.3d at 757; but see Pepper v. United States, 562 U.S. 476, 131 S.Ct. 1229, 1247, 179 L.Ed.2d 196 (2011) (noting that "a district court may in appropriate cases impose a non-Guidelines sentence based on a disagreement with the Commission's views" expressed in Guidelines policy statements).
Things changed in 2007, however, when the United States Supreme Court decided Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In Gall, the Court "reject[ed] ... an appellate rule that requires `extraordinary' circumstances to justify a sentence outside the Guidelines range." Id. at 47, 128 S.Ct. 586. The Court also reaffirmed that "the Guidelines are now advisory, and appellate review of sentencing decisions is limited to determining whether they are `reasonable.'" Id. at 46, 128 S.Ct. 586. Thus, after Gall, "a district court need not justify an extraordinary variance with an extraordinary
Additionally, Gall's directives confirm that district courts need not determine that a case falls outside the heartland in order to vary below a Guidelines sentence, despite the contrary view held by some federal district court judges, which I noted earlier. In other words, there are no "quotas" on variances. Sentences inside and outside of a defendant's Guidelines range are reviewed under the same standard: reasonableness. Gall, 552 U.S. at 51, 128 S.Ct. 586. And a district court may not presume that a Guidelines sentence is reasonable. Id. at 50, 128 S.Ct. 586; Rita, 551 U.S. at 351, 127 S.Ct. 2456. Rather, a district court has an "independent obligation to exercise its discretion" to craft a sentence that is sufficient, but not greater than necessary, to achieve § 3553(a)'s goals.
I acknowledge — as § 3553(a)(5) requires me to — that the Guidelines disfavor addiction-based departures. See U.S.S.G. §§ 5H1.4 ("Drug or alcohol dependence or abuse ordinarily is not a reason for a downward departure."); 5K2.13 ("[T]he court may not depart below the applicable guideline range if ... the [defendant's] significantly reduced mental capacity was caused by the voluntary use of drugs or other intoxicants[.]"). But "the standards governing departures do not bind a district court when employing its discretion with respect to variances." Chase, 560 F.3d at 832. Although "the Guidelines should be the starting point and the initial benchmark" for a defendant's sentence, Gall, 552 U.S. at 49, 128 S.Ct. 586, they are ultimately "merely persuasive authority." Chase, 560 F.3d at 832; see also Pepper, 131 S.Ct. at 1247 (noting that, in determining an appropriate sentence, district courts may disagree with Guidelines policy statements). And while I must consider Guidelines policy statements under § 3553(a)(5), they are only one of the § 3553(a) factors I must consider in deciding whether to grant a variance. Where § 3553(a)(5) weighs against addiction-based variances, § 3553(a)(1) weighs in favor of them. "The district court has wide latitude to weigh the § 3553(a) factors
Ultimately, balancing the § 3553(a) factors requires judges "to weigh that which cannot be measured."
United States v. Mireles, 617 F.3d 1009, 1012 n. 2 (8th Cir.2010).
(Internal citations omitted and emphasis added). In context, the quote appears to be descriptive, rather than prescriptive. At issue in Freeman was "whether defendants who enter into 11(c)(1)(C) agreements that specify a particular sentence may be said to have been sentenced `based on' a Guidelines sentencing range...." Id. at 2691. The quote in Freeman, therefore, is simply an observation that, absent an 11(c)(1)(C) agreement, it will be "apparent" that the district court relied on the Guidelines in issuing a sentence. The quote recognizes that this will be true regardless of whether the district court gives a Guidelines sentence or deviates from the Guidelines. The Court appears to assume that district courts will usually issue a Guidelines sentence. But nothing about the quote above, or Freeman's holding, mandates such a result. In fact, to support the quote, the Court cites to the page of Gall stating that "the Guidelines should be the starting point and the initial benchmark" for a defendant's sentence. Gall, 552 U.S. at 49, 128 S.Ct. 586. Nothing on that page — or elsewhere in Gall — requires that district courts give Guidelines sentences in the "usual" case. As I discussed earlier, Gall stands for the opposite proposition — that district courts must exercise their discretion under § 3553(a) independent of the Guidelines and that they need not provide extraordinary reasons for varying from a Guidelines sentence.
