U.S. v. LEHMANN No. 06-3597.
513 F.3d 805 (2008)
UNITED STATES of America, Appellant, v. Johnette LEHMANN, also known as Johnette Prudhomme, also known as Johnette Davidson, also known as Johnette Prine, also known as Johnette Steelman, Appellee.
United States Court of Appeals, Eighth Circuit.
Filed: January 17, 2008.
Philip M. Koppe, Asst. U.S. Atty., Kansas City, MO, argued (Bradley J. Schlozman, U.S. Atty., Kansas City, MO, James J. Kelleher, Spec. Asst. U.S. Atty., Springfield, MO, on the brief), for appellant.
Stacie R. Bilyeu, Askinosie & Bilyeu, LLC, Springfield, MO, argued (M. Shawn Askinosie, John Gore, on the brief), for appellee.
Before MURPHY, HANSEN, and COLLOTON, Circuit Judges.
Johnette Lehmann pled guilty to unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court
On September 18, 2005, Lehmann's eight-year-old son, Jamie, called Lehmann to say that Ashley, Lehmann's fourteen-year-old daughter, was bleeding. Lehmann returned home to find Ashley lying face down in a pool of blood with a pistol underneath her body. Ashley died several days later, apparently from a self-inflicted gunshot wound. Lehmann told investigators that she had taken the gun from an ex-boyfriend in 2003, because he was an alcoholic, and kept it high on a shelf in her closet. As a previously convicted felon, however, Lehmann was prohibited from possessing the firearm.
It is undisputed that the district court correctly calculated the advisory sentencing guidelines range, which provided for a sentencing range of 37 to 46 months' imprisonment before any departure or variance. Lehmann urged the district court to depart downward under § 5H1.6 of the advisory guidelines, or to vary from the advisory guidelines under 18 U.S.C. § 3553(a), based on her family ties and responsibilities. In particular, Lehmann argued that her son Jamie, who turned nine years old on September 19, 2005, suffered from disabilities that required her day-to-day involvement in his care and development. She argued that Jamie's father, despite his long-time role as either the primary or joint custodial parent for Jamie, was not in a position to provide the necessary care and emotional support.
At the sentencing hearing, the parties presented competing evidence concerning the impact of a term of imprisonment for Lehmann on Jamie. Lehmann presented testimony from a psychologist and a therapist, both of whom believed that separating Jamie from his mother would have a negative impact on the child. The government
The district court was persuaded by Lehmann's evidence concerning the welfare of her son, and pronounced a sentence for the firearms charge of five years' probation with six months of community confinement as a condition of probation. The court first announced that a departure was in order under USSG § 5H1.6, but never quantified the degree of any downward departure that would be granted. The court then declared that in addition to a downward departure, it also intended to grant a "variance" based on 18 U.S.C. § 3553(a), because "the guideline provision of 37 to 46 months is unreasonable on this set of facts." We construe the record, therefore, to mean that the district court justified its deviation from the advisory guidelines range as a "variance" based on § 3553(a), without regard to any guidelines-based departure that might also have been warranted.
The court emphasized that Lehmann was "not on trial for the death of her daughter," and found that the evidence regarding Jamie "clearly" took this case "outside the heartland of cases." The court "wasn't much impressed" with the testimony of the therapist, but found "particularly compelling" the testimony of Dr. Robert Ingegneri, a psychologist who had treated Jamie. Dr. Ingegneri opined that Jamie was likely to "decompensate emotionally," and suffer a setback in his overall development, if his mother were removed from his life. The doctor explained that since the death of his sister, Jamie fluctuated among exhibiting symptoms of Asperger's disorder, attention deficit hyperactivity disorder, and post-traumatic stress disorder. Dr. Ingegneri noted that Jamie responds positively to his mother, and that she was active in helping him address his disorders. In contrast, Dr. Ingegneri concluded that Jamie did not have a similar bond with his father and stepmother. He concluded that Jamie's father tended to minimize Jamie's difficulties, and wanted to reduce the frequency of Jamie's therapy sessions. The district court also expressed doubt that Jamie's father and stepmother could provide adequate support, given their history of domestic disputes and discussions about a possible divorce.
The district court stated that "the one thing that guides me more than ever is I do not want this young boy to suffer any more." The court believed this was "an extraordinary, exceptional situation and not by any stretch of the imagination is it a simple felon in possession case." Reviewing the § 3553(a)(2) factors, the court found that incarceration was not a necessary punishment. "Does she need prison time to have the appropriate punishment? I just can't see where that serves any purpose for additional punishment. The loss of the daughter certainly provided punishment." Turning to the need for deterrence, the court found "this is about as mild as a felon in possession case can [be], again, keeping the death of the daughter as a separate issue here." The court noted that there was no evidence of other criminal activity connected to the firearm. The court also believed that there was no need for incarceration to protect the public, noting "[s]he needs protection from herself probably as much as anything," Finally, considering rehabilitation, the court found no evidence that "additional education or vocational training or some other type of correctional training would be of any benefit." After sentencing Lehmann to probation, the court told her, "[Y]our counsel will tell you that you have had a break here. And I'm giving you the break because primarily of your son Jamie.
We review the sentence imposed for reasonableness with regard to 18 U.S.C. § 3553(a), United States v. Booker,
In this case, consistent with Gall's direction "to secure nationwide consistency" by using the guidelines as "the starting point and the initial benchmark," id. at 596, the district court correctly calculated and reviewed the advisory guidelines range. The district court considered the § 3553(a) factors, specifically discussing the factors of § 3553(a)(2). Cf. United States v. Lamoreaux,
The district court imposed a sentence of probation, and the government argues that the sentence is substantively unreasonable. Our precedents prior to Gall "routinely" rejected as unreasonable those variances that resulted in a sentence of probation when the guidelines recommend a term of imprisonment, United States v. Soperla,
The district court here imposed the standard conditions of probation, which Gall described as a "substantial restriction of freedom," id. at 595, and added a special condition requiring Lehmann to serve six months in community confinement. In explaining its decision not to impose a term of imprisonment, the district court accepted expert testimony that sending Lehmann to prison would have a very negative effect on the emotional development of her young son, which is not materially different from the sort of "compelling family circumstances" that the Supreme Court indicated would justify probation for a drug trafficker with a similar advisory guidelines range. Id. at 602. Given the impermissibility of "proportionality" review, and the requisite deference due to the district court, we cannot conclude that the sentence imposed was substantively unreasonable in light of § 3553(a) and Gall. See Gall, 128 S.Ct. at 597 ("The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court"). Accordingly, the judgment is affirmed.
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