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Downward Departures in the Post-Booker Era

How Is Diminished Capacity Defined?

In U.S. v. Valdez, 426 F.3d 178 (2nd Cir. 2005), the United States Court of Appeals for the Second Circuit reviewed the sentencing of Felix Valdez by the District (trial) Court for the Southern District of New York to determine if the court had incorrectly applied the insanity defense legal standard rather than the diminished-capacity downward-departure legal standard when denying the defendant’s request for a downward departure.

Facts of the Case

Valdez confessed to obtaining and selling telephone calling cards in other people’s names. He was recorded on a public pay phone while opening calling card accounts by offering various false explanations such as posing as a building owner attempting to obtain numbers on behalf of his tenants. The government estimated that Valdez had obtained over 1,176 calling card numbers and suggested that he was even able to obtain phone access to countries that had fraud protection mechanisms in place.

Upon his guilty plea, Valdez was convicted of wire fraud by the U. S. District Court for the Southern District of New York. At sentencing he requested a downward departure from the recommended sentence secondary to his diminished capacity. He based his petition for a diminished-capacity departure on his IQ of 55, documented learning difficulties, history of special education classes provided as a result of brain injury and severe emotional disturbance, history of dependency on others, and family psychiatric history. The defense’s psychiatric expert opined that as a result< sup> of Valdez’s generalized anxiety disorder, “marked dependency needs … overly compliant” behavior, low IQ, and essential illiteracy, he was easily manipulated by his coconspirator (Guillermo) into performing the fraud with the belief that he, the defendant, would then have access to calling cards to call his son. The defense asserted that without Guillermo, Valdez would have been incapable of developing the fraud that led to his indictment; therefore, Valdez’s diminished capacity was causally linked to the commission of the offense as a result of his vulnerability to Guillermo’s manipulation. However, on cross-examination the defense’s expert psychiatrist testified that Valdez knew that what he was doing was wrong and that he could have written the hundreds of names and calling card numbers himself. The expert’s report also documented that Valdez had refused to pay his co-conspirator, Guillermo.

The district court denied Valdez’s petition for a downward departure and sentenced the defendant according to the Federal Sentencing Guidelines. The court concluded that the defendant did not meet the definition of “significantly reduced mental capacity” (one prong necessary in defining diminished capacity) as evidenced by information that contradicted the defendant’s contention that he had trouble understanding the wrongfulness of his actions. The court also dismissed the validity of the nexus between any psychiatric or cognitive impairment that Valdez had and his fraudulent behavior.

Valdez appealed this decision to the U. S. Court of Appeals for the Second Circuit. He contended that the district court had incorrectly applied the criteria for the insanity defense rather than the criteria for the diminished capacity departure when considering him for a downward departure from the Federal Sentencing Guidelines. Valdez asserted that the court, in doing so, had thereby failed to make use of the availability of this departure when a defendant understands the stark difference between right and wrong but has significantly impaired ability to understand the wrongfulness of his conduct.

Valdez also appealed on the grounds that the court’s holding was based on clearly erroneous fact finding, asserting that the court based its holding on its own lay opinion of Valdez’s mental capacity, which was contrary to evidence submitted by medical professionals.

Ruling

The U. S. Court of Appeals for the Second Circuit affirmed the district court’s calculation of the defendant’s sentence and found that the district court did not apply an incorrect legal standard in denying a downward departure and had not erred in fact finding. The court remanded the case to the district court to consider whether the defendant’s sentencing would have been different if the district court had understood the Federal Sentencing Guidelines to be advisory rather than mandatory.

Reasoning

The appeals court agreed with the defendant’s assertion that the insanity defense standard, in which the defendant does not recognize the difference between right and wrong, is not the appropriate standard when considering a downward departure based on diminished capacity. The appeals court agreed that the standard for granting a downward departure on the basis of diminished mental capacity requires significant impairment in a defendant’s judgment or ability to understand the wrongfulness of his actions. Therefore, the standard for diminished capacity does not require that a defendant lack criminal intent.

However, the appeals court held that the district court did not confuse the insanity defense standard with the diminished-capacity downward-departure standard in denying a downward departure for Valdez. The court found that the district court had considered his understanding of right and wrong only to assess at which point along the continuum his understanding fell. Furthermore, the appeals court noted that the lower court had rejected the diminished-capacity departure based on both Valdez’s ability to carry out a complex crime and its perception of a lack of evidence supporting Valdez’s having a psychiatric diagnosis.

The appeals court remanded the case to the district court as a result of the possibility that the district court had made a procedural error in imposing a sentence on the assumption that the Federal Sentencing Guidelines (FSG) were mandatory rather than advisory. The appeals court opined that a court properly sentences even if it decides to depart from the FSG, providing it first considers them. However, to avoid procedural error (e.g., failing to attend to the various factors contained in 18 U.S.C.