Children are often the “hidden victims” of the criminal justice system. Family ties departure.

Family ties and responsibilities “are not ordinarily relevant in determining whether a sentence should be outside the guidelines.” U.S.S.G. § 5H1.6 (Policy Statement) (emphasis added). Although this factor is discouraged, it is not forbidden. See United States v. Aguirre, 214 F.3d 1122, 1127 (9th Cir.2000). United States v. Leon, 341 F.3d 928, 931 (9th Cir. 2003). Several courts have found that this and similar policy statements permit departure in extraordinary circumstances. United States v. Newell, 790 F. Supp. 1063, 1064 (E.D. Wash. 1992).

In US v. Lane, Ms. Lane was a mother of six children, the oldest of whom was thirteen years old. Lane presented evidence at the sentencing hearing to show that, during any term of incarceration, the only family member who would be able to care for all six children would be her mother. The evidence further indicated that Lane’s mother would most likely be able to care for the children for only a limited time after which it would be necessary to place them in foster care. A witness from the Washington Division of Child and Family Services testified that if foster care became necessary because family resources were exhausted, it would be nearly impossible to keep the children together. United States v. Newell, 790 F. Supp. 1063, 1064 (E.D. Wash. 1992)

The court found that if Lane was incarcerated for 33 months, the minimum of the guidelines range, there was a strong likelihood, if not a near certainty, that the children were to be separated. This added trauma would only increase the potential for exacerbation of difficulties the children have experienced. This, in turn, could easily lead to an increased burden on the public through social service, school, and criminal justice systems. United States v. Newell, 790 F. Supp. 1063, 1064–65 (E.D. Wash. 1992)

The court concluded that the sentence of six months incarceration, followed by six months home detention and three years supervised release (a total of four years during which Lane will be closely monitored) was a reasonable balance. The guidelines purposes of punishing and deterring criminal conduct were served by this sentence. At the same time, the chances for stable lives for the children were increased. United States v. Newell, 790 F. Supp. 1063, 1065 (E.D. Wash. 1992)

Mr. Leon pled guilty to 32 counts of preparing false income tax returns. Leon’s offense level before the departure here at issue was 17 and he was in criminal history category II. The guideline range was thus 27-33 months. U.S. Sentencing Guidelines Manual (“U.S.S.G.”) ch. 5, pt. A (2001). United States v. Leon, 341 F.3d 928, 929 (9th Cir. 2003)

The district court then departed downward six levels based on the poor physical and emotional health of Mrs. Leon, her impending loss of employment, and Leon’s irreplaceable role in caring for her. The six level departure brought Leon down to level 11, which resulted in a range of 10-16 months. U.S.S.G. ch. 5, pt. A. The reduced level placed Leon in Zone C, which was significant in that it enabled the district court to split Leon’s sentence between imprisonment and, as a condition of supervised release, home detention. U.S.S.G. § 5C1.1(d)(2). The district court sentenced Leon at the high end of the range, 16 months, but split the sentence between 8 months of imprisonment and 8 months of home detention. United States v. Leon, 341 F.3d 928, 929 (9th Cir. 2003)

Anton Vialtsin, Esq.
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