Opinion
Case No. 1:00CR00052, Case No. 1:01CR00009
November 27, 2001
S. Randall Ramseyer, Assistant United States Attorney, Abingdon, Virginia, for United States of America.
W. Thomas Dillard and Wade V. Davies, Ritchie, Fels Dillard, P.C., Knoxville, Tennessee, for Defendant.
OPINION AND ORDER
The defendant, a physician, was convicted of prescribing controlled substances without a legitimate medical purpose. Both the government and the defendant have objected to the probation officer's calculation of the applicable sentencing guideline range. In addition, the defendant has moved for a downward departure. After consideration of the evidence presented at the sentencing hearing, I will grant the government's objections in part and increase the offense level. However, I will also grant the defendant's motion for a downward departure on the ground of diminished mental capacity. Based on the uncontradicted medical evidence, the defendant suffered from an organic mental impairment that was a contributing factor in his commission of these crimes.
I. Background.
Franklin Sutherland was a practicing physician in Grundy, Virginia, when he became the target of a law enforcement investigation into the distribution of prescription drugs in the local area. As a result of the investigation, he was named in two indictments, charging him in total with 678 counts of unlawfully distributing controlled substances, in violation of 21 U.S.C.A. §§ 841(a)(1), 841(b)(1)(C), and 841(b)(1)(D) (West 1999 Supp. 2001). On May 25, 2001, a jury found Dr. Sutherland guilty of 427 counts of prescribing Schedule II, III, and IV drugs without a legitimate medical purpose.
The probation officer assigned to this case prepared a presentence report, and the parties filed their objections to it. The defense also filed a motion for downward departure based, among other things, on Dr. Sutherland's alleged diminished mental capacity. The defendant was evaluated by Timothy A. Urbin, Ph.D., and submitted a report and letter from Dr. Urbin explaining that Dr. Sutherland's diminished mental capacity resulted in the behavior that led to his convictions.
On October 22, 2001, the parties presented evidence and argument on the objections and motion. These issues are now ripe for decision.
II. The Government's Objections.
The government's first objection alleges that Dr. Sutherland obstructed justice during the course of his criminal trial, and should thus be subject to the two-level enhancement required under § 3C1.1 of the United States Sentencing Guidelines. See United States Sentencing Guidelines Manual ("USSG") § 3C1.1 (2001). The government first contends that the defendant provided false information to his attorneys regarding prior proceedings against the defendant in state court. In 1999, the Commonwealth of Virginia filed criminal charges against Dr. Sutherland for intentionally making a materially false statement on an application to purchase a firearm, under Virginia Code § 18.2-308.2:2. At the trial in the present case, the government wanted to cross examine Dr. Sutherland regarding the false statement and defense counsel objected. A sidebar conference was held, following which I sustained the defendant's objection. The government now submits that, during the sidebar, defense counsel presented false information regarding the state criminal charges, which led to the favorable ruling. It further contends that Dr. Sutherland provided his attorneys with that false information, thus obstructing justice and subjecting him to the two-level enhancement.
The sentencing guidelines state that "providing materially false information to a judge or magistrate" is an example of conduct to which the obstruction adjustment applies. USSG § 3C1.1, cmt. n. 4(f). To apply the enhancement, the district court must find that the defendant "`consciously act[ed] with the purpose of obstructing justice.'" United States v. Stewart, 256 F.3d 231, 253 (4th Cir. 2001) (quoting United States v. Romulus, 949 F.2d 713, 717 (4th Cir. 1991)).
After reviewing the transcript of the state court preliminary hearing held on November 4, 1999, and the transcript of Dr. Sutherland's federal trial on May 22, 2001, I cannot identify any false statement made to this court. Furthermore, defense counsel has represented that he received all information regarding the prior state proceedings from the attorneys who represented Dr. Sutherland at the preliminary hearing in state court. Thus, there is no evidence to support the government's argument that the defendant or his attorneys made intentional misrepresentations or acted with the purpose of obstructing justice.
The government also asserts that Dr. Sutherland is subject to the obstruction of justice enhancement because he committed perjury during his testimony at trial. "[I]f a defendant objects to a sentence enhancement resulting from [his] trial testimony, a district court must review the evidence and make independent findings necessary to establish a willful impediment to or obstruction of justice, or an attempt to do the same. . . ." United States v. Dunnigan, 507 U.S. 87, 95 (1993); United States v. Stotts, 113 F.3d 493, 497 (4th Cir. 1997). To find the defendant committed perjury, the evidence must demonstrate that he gave false testimony under oath regarding a material matter, and that such testimony was given intentionally, not as the result of confusion, mistake, or faulty memory. See Dunnigan, 507 U.S. at 94; Stotts, 113 F.3d at 497.
Upon review of his testimony, I cannot say that Dr. Sutherland intentionally gave false testimony. Although he denied any criminal intent, he admitted to making mistakes in prescribing drugs for some of the patients in question. Particularly because of the large number of individual charges and patients, as well as the passage of time, I cannot find that Dr. Sutherland perjured himself. Objection one is therefore overruled.
The government next contends that, due to relevant conduct committed by Dr. Sutherland, the defendant's base offense level should be increased to 34 pursuant to USSG § 2D1.1(c)(3). The government asserts that the defendant prescribed hundreds of OxyContin pills to a patient named Timothy Shortridge after a search warrant was executed at the Sutherland Clinic in September 1997. Those prescribed drugs were not included in the indictment but arguably constitute relevant conduct.
In determining the defendant's offense level under the sentencing guidelines, a district court may consider an entire range of conduct beyond those acts for which the defendant was convicted. The defendant is accountable for all acts that were part of the same course of conduct or common scheme or plan as the offense of conviction. See USSG § 1B1.3(a)(2); United States v. Watts, 519 U.S. 148, 152-53 (1997). The guidelines define "same course of conduct" as acts "sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree, or ongoing series of offenses." USSG § 1B1.3, cmt. n. 9(B). Relevant conduct can include acts that were not charged in the indictment. See USSG § 1B1.3, cmt. background; United States v. Mullins, 971 F.2d 1138, 1143-44 (4th Cir. 1992). The court must consider regularity, similarity, and temporal proximity in determining whether the uncharged conduct falls within the scope of relevant conduct. See Mullins, 971 F.2d at 1144.
It is clear from the evidence presented at trial that Dr. Sutherland illegally prescribed drugs to Timothy Shortridge over an extended period of time and that not all of this conduct was included in the indictment. Shortridge visited Dr. Sutherland on a regular basis, and the circumstances by which he obtained unlawful prescriptions from Dr. Sutherland did not substantially change over time. The uncharged conduct was substantially similar and was committed in regular course as part of the defendant's ongoing series of offenses. Thus, I find by a preponderance of the evidence that the acts in question constitute relevant conduct. My finding requires that the drug weight involved in the omitted offenses be added to the calculation required under USSG § 2D1.1, which advances Dr. Sutherland to a higher drug weight category, thereby increasing his base offense level from 32 to 34. Objection two is sustained.
The government's third objection is that the total offense level should be increased from 34 to 38 to factor in the adjustments for the defendant's relevant conduct and obstruction of justice. Since I sustained the government's request for upward adjustment on the basis of relevant conduct, two levels will be added to the total offense level pursuant to USSG § 2D1.1(c)(3). However, I denied the government's objection related to obstruction of justice and therefore no adjustment will be made on that basis. Objection three is hereby granted in part and denied in part, and paragraph 40 will be amended to reflect a total offense level of 36.
In objection four, the government requests that paragraph 10 of the presentence report be edited to delete the phrase "to the same small group of patients." As this correction has no effect on the guideline range, I hereby deny the objection.
The government next asserts that paragraphs 21 and 22 should be corrected. As written, those paragraphs state that Dr. Sutherland wrote prescriptions for Summer [sic] Chambers and Kelly Elswick. However, the evidence at trial showed that neither of these women was a patient of Dr. Sutherland's when the prescriptions were issued. Paragraphs 21 and 22 should clarify that while the prescriptions were written in the names of Sommer Chambers and Kelly Elswick, they were filled by Brian Elswick. Objection five is thus sustained.
Objection six relates to Dr. Sutherland's relevant conduct. The government wishes to correct paragraph 23 to make clear that the indictments do not encompass all of the defendant's illegal acts. In fact, the criminal investigation revealed that Dr. Sutherland continued to write unlawful prescriptions after the search warrant was executed in September 1997, constituting criminal conduct for which he was not indicted. For the same reasons as previously set forth in my discussion of objection two, I grant objection six.
In objection seven, the government asks that paragraph 61 be corrected to indicate that Dr. Sutherland practiced medicine until the court placed restrictions on his ability to prescribe narcotics. The presentence report notes only that Dr. Sutherland relinquished his medical license due to health problems. The guideline range is not affected by this factual difference; therefore, I deny objection seven.
The government's request that the defendant be required to pay restitution was withdrawn at oral argument, and therefore need not be addressed.
III. The Defendant's Objections.
The defendant's first objection requests that a factual discrepancy in paragraph 21 of the presentence report be corrected. The objection is granted and the date that Dr. Sutherland prescribed Lorcet to Sommer Chambers will be changed from January 20, 1995, to the correct date of June 20, 1995.
Objections two and three relate to the equivalency ratios used in determining drug weight for sentencing purposes. To determine the base offense level, the probation officer utilized the drug equivalency tables to convert oxycodone into an equivalent marihuana weight. See USSG § 2D1.1, cmt. n. 10. The tables list that one gram of oxycodone is equal to five hundred grams of marihuana. See id. Therefore, the 5,870.145 grams of oxycodone prescribed by Dr. Sutherland convert into 2,935.0725 kilograms of marihuana. When that figure is added to the marihuana equivalency weight calculated for the dextroamphetamine Dr. Sutherland also prescribed, a base level of 32 is assigned.
Dr. Sutherland argues that the pills prescribed contained oxycodone hydrochloride, not oxycodone, and thus should be converted using a ratio of 1:448.2, thus reducing the total drug weight. As the government points out, however, this is not a valid argument because the guidelines do not differentiate between oxycodone and its salts. The application notes provide that "[a]ny reference to a particular controlled substance in these guidelines includes all salts, isomers, and all salts of isomers." USSG § 2D1.1, cmt. n. 5. Because oxycodone hydrochloride is a "salt" of oxycodone, the drug equivalency formula provided by the guidelines should be used. See United States v. Soto, 1 F.3d 920, 922-23 (9th Cir. 1993) (explaining that the federal sentencing guidelines do not differentiate between cocaine and its "salt," cocaine hydrochloride). I find that the drug weight calculations contained in paragraphs 24 and 25 are correct. I therefore overrule objections two and three.
The defendant calculated this ratio using information gathered from the Physician's Desk Reference, which states that 5.0 grams of oxycodone hydrochloride is equal to 4.4815 grams of oxycodone. See Physician's Desk Reference 1037 (2000) (Percocet entry). With that information, the defendant computed that 1.0 grams of oxycodone equals approximately 1.115 grams of oxycodone hydrochloride (rounded to the nearest thousandth). Therefore, the defendant asserts, if one gram of oxycodone is equal to 500 grams of marihuana, then 1.0 gram of oxycodone hydrochloride should equal 448.2 grams of marihuana.
The next objection also pertains to drug weight. Dr. Sutherland argues that it violates his due process and equal protection rights under the United States Constitution to use the entire weight of the Schedule II tablets in determining the base offense level. Specifically, he asserts that the practice of using a gross weight calculation does not take into account the varying potency levels of the pills in question, which has the potential to result in nonuniform sentencing.
The sentencing guidelines provide that "the weight of a controlled substance . . . refers to the entire weight of any mixture of substance containing a detectable amount of the controlled substance." USSG § 2D1.1(c) n.(A). In United States v. Bayerle, 898 F.2d 28, 31-32 (4th Cir. 1990), the Fourth Circuit rejected the argument that the "detectable amount" utilized in that provision results in an unconstitutional sentence and held that the gross weight of the tablets distributed must be used in determining the base offense level, regardless of the potency of the drugs. Because the Fourth Circuit has specifically addressed this issue, I am bound by precedent to deny Dr. Sutherland's fourth objection.
Dr. Sutherland also objects to the "special skill" enhancement added in paragraph 34. He argues that doctors are the only people authorized to prescribe controlled substances; therefore, only doctors are capable of committing the offense of prescribing controlled substances without a legitimate medical purpose. In essence, he contends, the special skill enhancement amounts to impermissible double counting under these circumstances.
The sentencing guidelines require that the offense level be increased by two levels "[i]f the defendant . . . used a special skill, in a manner that significantly facilitated the commission or concealment of the offense." USSG § 3B1.3. The provision includes a caveat, however, which states that the "adjustment may not be employed if an abuse of trust or skill is included in the base offense level or specific offense characteristic." Id. Dr. Sutherland relies upon this latter language for his argument. The court, therefore, must look at the base offense level and the offense for which the defendant was convicted to determine whether the use of a special skill has already been factored in. Section 2D1.1 of the sentencing guidelines sets forth the base offense level for the defendant's crime, but does not require that Dr. Sutherland's status as a doctor be taken into consideration. The defendant was convicted under 21 U.S.C.A. §§ 841(a)(1), 841(b)(1)(C), and 841(b)(1)(D), none of which mention special skill as a prerequisite for violation of the statute. As noted by the Sixth Circuit: "Anyone can be found guilty of violating 21 U.S.C. § 841(a)(1) by distributing pharmaceuticals. Doctors are merely exempt from this section when they dispense or prescribe controlled substances in the regular course of professional practice." United States v. Johnson, 71 F.3d 539, 544 (6th Cir. 1995) (holding that a doctor's use of special skill in distribution of controlled substances should be considered under sentencing guideline § 3B1.3). I agree that Dr. Sutherland's training as a doctor constitutes a special skill used in the commission of this offense and he should thus be subject to the two-level enhancement. I therefore deny the defendant's fifth objection.
Dr. Sutherland also contends that he is eligible for a two-level decrease in offense level based upon his acceptance of responsibility. See USSG § 3E1.1. In support of his argument, he submits that he cooperated with law enforcement authorities throughout the investigation and admitted at trial that he used poor judgment in writing some of the prescriptions. Although he exercised his constitutional right to a trial, he is not precluded from consideration for this reduction. See USSG § 3E1.1, cmt. n. 2. The defendant admits that he went to trial to dispute the allegations against him, but asserts that he also wished to challenge the constitutionality of the statute he was accused of violating.
Preservation of an important legal issue does not amount to a refusal to accept responsibility for criminal conduct. See id.; United States v. Holt, 79 F.3d 14, 17 (4th Cir. 1996). However, I do not find that Dr. Sutherland went to trial merely to preserve issues unrelated to factual guilt. He invoked his right to a jury trial in order to litigate the factual issue of whether there was a legitimate medical purpose for the prescriptions he wrote for his patients. He may have admitted that some of the prescriptions were not justified, but acknowledging his poor judgment does not constitute the level of acceptance of responsibility required for application of the reduction under § 3E1.1. See United States v. Rice, No. 91-5786, 1992 WL 90278, at *2 (4th Cir. May 4, 1992) (unpublished) (holding that the defendant's expression of remorse for his bad judgment did not demonstrate an affirmative acceptance of personal responsibility). This is certainly not one of those "rare situations" where the defendant can go to trial and still qualify for the downward departure. USSG § 3E1.1, cmt. n. 2. For these reasons, the defendant's sixth objection is denied.
Dr. Sutherland's final objection is essentially an argument for downward departure. He asserts that the criminal history category assigned to him significantly overrepresents the seriousness of his criminal history and the likelihood that he will commit further crimes, in which case the court may consider departing downward from the sentence range imposed by the guidelines. See USSG § 4A1.3. I believe that disobeying a court order of protection is a significant transgression that should not be disregarded in calculating criminal history. The presentence report correctly defines the category into which Dr. Sutherland should be placed. As I do not agree with Dr. Sutherland's argument, I refuse to exercise my discretion to grant a downward departure on this basis.
IV. Motion for Downward Departure.
The purpose of the federal sentencing guidelines is to create uniformity in sentencing by mandating similar punishment for similar criminal offenders. See USSG ch. 1, pt. A, introductory cmt. (3); United States v. Harriott, 976 F.2d 198, 202-03 (4th Cir. 1992). In an ordinary case, the sentencing court must adhere to the guideline range mandated by the sentencing guidelines. The guideline range is based upon the defendant's total offense level and his or her criminal history. Only in an extraordinary case may a sentencing court consider additional circumstances and depart from this designated range to impose a sentence that is either shorter or longer than that prescribed by the guidelines. Congress allows a court to use its discretion to depart only when it finds "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C.A. § 3553(b) (West 2000); Koon v. United States, 518 U.S. 81, 92 (1996).
The offense level is determined by numerous factors, including but not limited to the specific offense committed, §§ 2A1.1 — 2X5.1, the defendant's role in the offense, §§ 3B1.1-.4, obstruction of justice, §§ 3C1.1-.2, and acceptance of responsibility, § 3E1.1.
The Sentencing Commission recognized that it would have been a difficult, if not impossible, task to comprehensively list each potential departure factor. See USSG § 5K2.0. Nevertheless, the guidelines set forth several factors that may and may not be considered by the court in a departure analysis. There are certain prohibited factors that may never be used to deviate from the mandated range, e.g., race, sex, national origin, religion, creed, socioeconomic status (§ 5H1.10), and lack of guidance as a youth (§ 5H1.12).
Beyond these prohibited factors, the guidelines enumerate other factors that are viewed as either "encouraged" or "discouraged." The special conditions that the court is encouraged to consider include such circumstances as victim provocation (§ 5K2.10), extreme conduct by the defendant (§ 5K2.8), and significant physical injury to the victim (§ 5K2.2). Discouraged factors, on the other hand, such as the defendant's family ties and responsibilities (§ 5H1.6), education and vocational skills (§ 5H1.2), and employment record (§ 5H1.5) are "not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline range." USSG ch. 5, pt. H, introductory cmt. The court may inquire into the encouraged factors and use them as a basis for departure if the applicable guideline has not already taken that factor into account. See Koon, 518 U.S. at 94-95; United States v. Debeir, 186 F.3d 561, 566 (4th Cir. 1999). If the encouraged factor has been taken into account, or if the factor at issue is discouraged, the court may depart "only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present." Koon, 518 U.S. at 96; Debeir, 186 F.3d at 566.
There are, of course, numerous special situations that may arise that have not been addressed by the sentencing guidelines. In its discretion, a court may consider an unmentioned factor or any combination of unusual circumstances as a basis for departure if the characteristics or circumstances distinguish the case from the "heartland" cases covered by the guidelines in such a way that departure is warranted. See USSG § 5K2.0, cmt. Such departures, however, should be granted infrequently. See United States v. Hairston, 96 F.3d 102, 106 (4th Cir. 1996).
The sentencing court retains significant discretion in making departure decisions, and the United States Supreme Court has acknowledged the district court's greater experience and "institutional advantage" over an appellate court in making such determinations. Koon, 118 U.S. at 98; see Debeir, 186 F.3d at 566; Hairston, 96 F.3d at 105. "The decision as to whether and to what extent departure is warranted rests with the sentencing court on a case-specific basis." USSG § 5K2.0. Because Congress and the Sentencing Commission did not intend to wholly divest district courts of their traditional sentencing functions, an appellate court is required to give substantial deference to the decision to depart and that decision is reviewed only for abuse of discretion. See Koon, 118 U.S. at 100; Debeir, 186 F.3d at 566-67; Hairston, 96 F.3d at 105.
With this summary of the law in mind, I now address the defendant's motion for downward departure. Dr. Sutherland argues that the following factors warrant a downward departure in his case: (1) he suffered from a diminished mental capacity at the time of the offense; (2) his conduct is less serious than the typical conduct covered by the drug sentencing guidelines; and (3) he has provided extraordinary service to his community. I find the first argument persuasive.
Dr. Sutherland asserts that he suffered from diminished capacity at the time he committed the offenses, thus warranting a downward departure under § 5K2.13 of the sentencing guidelines. The guidelines allow the court to impose a sentence below the applicable guideline range if the defendant committed a nonviolent offense while suffering from a significantly reduced mental capacity not resulting from the voluntary use of drugs or alcohol. See USSG § 5K2.13. "Significantly reduced mental capacity" means that the defendant has an impairment that substantially limits his ability to "understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason" or to "control behavior that the defendant knows is wrongful." USSG § 5K2.13, cmt. n. 1.
The first step in considering this motion for downward departure is to determine whether Dr. Sutherland exhibited a diminished mental capacity at the time he committed the offense. See United States v. Sassani, No. 97-4011, 1998 WL 89875, at *7 (4th Cir. Mar. 4, 1998) (unpublished). The Fourth Circuit has held that "in order for a defendant's mental condition to be considered `a significantly reduced mental capacity' . . . the defendant must have been unable to process information or to reason." United States v. Goossens, 84 F.3d 697, 701 (4th Cir. 1996) (omitting citations). The evidence in Goossens did not show that the defendant's mental problems impaired his judgment; rather, the court found Goossens to be an intelligent man, employed in a responsible position, who demonstrated no signs of psychosis or gross organic dysfunction. See id.
Dr. Sutherland's case is distinguishable because the evidence reveals that he had a significantly diminished capacity at the time of the offenses. Dr. Timothy A. Urbin, a licensed psychologist and neuropsychologist, examined the defendant on November 29, 2000, and administered several tests to evaluate Dr. Sutherland's cognitive functioning. In his report dated December 5, 2000, Dr. Urbin noted that "[t]he overall pattern of scores indicates cognitive deficits are present," possibly stemming from brain injury as a child, depression, and visual impairment. Dr. Urbin wrote a letter to Dr. Sutherland's attorney, dated October 16, 2001, in which he set forth the basis for his opinion that Dr. Sutherland exhibited diminished capacity, making him incapable of adequately anticipating the consequences of the behavior that resulted in his felony conviction. He stated that the defendant "demonstrates signs of significant, organically based impairments in judgment. . . ." and opined that Dr. Sutherland "would not have seen his behaviors as posing harm to others nor would he have intentionally caused harm to others." Dr. Urbin opined that the condition has been a long-standing, permanent impairment.
Dr. Sutherland's condition also has a substantial effect on his ability to process information. Dr. Urbin concluded that the defendant processes information slowly and has a tendency to lose details when his patients provide a lot of content at one time, resulting in reduced performance and a potential for errors when undertaking tasks that require sustained attention. He stated that individuals with the same pattern exhibited by Dr. Sutherland tend to rely upon their emotional impression of a situation and supply missing details from their personal perspective rather than from the perspective of the person providing the information.
I believe that Dr. Urbin conducted a thorough evaluation of the defendant and presented a credible report of the results of that examination. The government has produced no contrary testimony to refute Dr. Urbin's opinion. See United States v. Perry, No. 98-4265, 1999 WL 95531, at *3 (4th Cir. Feb. 17, 1999) (unpublished) (relying on the government's failure to produce contrary testimony in upholding the district court's decision to downwardly depart on grounds of diminished capacity). Based on the uncontradicted evidence, I find that Dr. Sutherland suffered from a diminished capacity at the time he committed the offenses for which he has been convicted.
The second step in considering this motion is to determine whether the diminishment was a cause of the offense. See Sassani, 1998 WL 89875 at *7. "Diminished capacity need not be the sole cause of the offense to justify a departure, but should `comprise a contributing factor in the commission of the offense.'" United States v. Glick, 946 F.2d 335, 339 (4th Cir. 1991) (quoting United States v. Ruklick, 919 F.2d 95, 97-98 (8th Cir. 1990)). The Fourth Circuit, expanding upon this factor, noted that the "causal connection must consist of more than an emotional weakness that leaves one open to suggestion." United States v. Withers, 100 F.3d 1142, 1148 (4th Cir. 1996) (deciding that the defendant's depression over the death of her mother did not amount to diminished capacity because her emotional problems did not affect her ability to reason or process information).
According to Dr. Urbin, Dr. Sutherland's unlawful behavior directly resulted from his mental impairments. He communicated in his October 16, 2001 letter that the defendant's "significantly reduced ability to maintain a global perspective on situations" affected his professional decision-making skills. Dr. Urbin noted that the defendant could easily have been misled and deceived by those patients who were fabricating or exaggerating physical complaints in an effort to feed an addiction to prescription painkillers. It is "highly unlikely," according to Dr. Urbin, that Dr. Sutherland acted with any criminal intent when writing illegitimate prescriptions; rather, he suffers from a permanent mental impairment that made him susceptible to his patients' manipulative tactics. In other words, his diminished capacity distorted Dr. Sutherland's reasoning to such a degree that he wrote prescriptions that were not medically required, resulting in his conviction for distribution of controlled substances.
Based on the record, I find that Dr. Sutherland suffered from a diminished capacity that was a contributing factor in the commission of his offense. Pursuant to § 5K2.13 of the guidelines, I will exercise my discretion to depart downwardly from the sentencing range assigned to Dr. Sutherland.
The final determination required in this analysis is the extent of the departure granted. Case law is scarce on this issue, and the guidelines offer little direction, stating only that "[i]f a departure is warranted, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense." USSG § 5K2.13. It is a "virtual impossibility" to accurately pinpoint the precise degree to which a mental impairment affects a defendant's criminal behavior. United States v. Royal, 902 F. Supp. 268, 272 (D.D.C. 1995) (upholding a five-level departure on the basis of diminished capacity). "The human psyche is not neat piece of graph paper on which we can chart its emotions with great exactitude and precision." Id. Therefore, there is no foolproof method of identifying the extent of the defendant's diminishment and its contribution to the offense.
Dr. Urbin's evidence does not quantify the degree to which, in his opinion, the defendant's mental illness contributed to the offenses. He merely states that he believes Dr. Sutherland's mental deficits "contribute[d] to his diminished capacity to have anticipated the consequences of his behavior and, for that reason, should be considered as special circumstances in determining his sentence. . . ." He refers to Dr. Sutherland's impairments as "significant" and states that the defendant was "more likely" to be manipulated by his patients because of his mental condition. Dr. Urbin's characterizations of the defendant's capacity are by no means exact but lead me to the general conclusion that Dr. Sutherland's impairment contributed more than fifty percent, yet less than one hundred percent, to his unlawful behavior.
Acknowledging that this is not an exact science, it is also useful to compare rulings in other diminished capacity cases. In United States v. Glick, the Fourth Circuit upheld a sentence of five years probation where the district court had downwardly departed from a guideline range of twenty-seven to thirty-three months. 946 F.2d 335, 337-39 (4th Cir. 1991). The Fourth Circuit has also affirmed a three-level departure, reducing the defendant's offense level from 13 to 10, see United States v. Weddle, 30 F.3d 532, 536, 540 (4th Cir. 1994), and a departure from a guideline range of 151-188 months to a sentence of eighty-four months, see United States v. Apple, 962 F.2d 335, 336, 339 (4th Cir. 1992). A twelve-level departure was awarded by the district court in United States v. Morin because the court found that "`the extremely serious delusional problems that [the defendant] had . . . were both the motivation for the crime and they drove the way in which he went about committing the crime.'" 124 F.3d 649, 652 (4th Cir. 1997) (quoting the district court opinion) (vacating the sentence because the court found that the defendant's offense was not "nonviolent").
Based upon the presentence report and my rulings on the objections filed, the defendant's current total offense level stands at 36, calculated from a base offense level of 32, plus a two-level increase for relevant conduct and a two-level adjustment for use of a special skill. When combined with a category II criminal history, the offense level assigned to the defendant results in a sentencing range of 210-262 months. Due to my opinion that Dr. Sutherland's diminished capacity contributed approximately seventy percent to his unlawful behavior, I will grant a departure of ten levels, placing the defendant at a total offense level of 26, which requires a sentence of seventy to eighty-seven months. I believe this is a reasonable departure in light of Dr. Urbin's opinion and the recent Fourth Circuit opinions discussed herein.
Under the facts and circumstances of this case, I do not find it appropriate to exercise my discretion to depart on the basis of the other grounds urged by the defendant, even though I recognize my power to do so.
V. Conclusion.
For the foregoing reasons, it is ORDERED as follows:
1. The United States' objections to the presentence report are denied as to objections one, three (in part), four, and seven, and granted as to objections two, three (in part), five, and six;
2. The defendant's objections to the presentence report are denied as to objections two through seven, and granted as to objection one;
3. The motion for downward departure is granted; and
4. The defendant's total offense level is hereby reduced to 26, and he retains a criminal history category of II, resulting in an applicable guideline range of seventy to eighty-seven months imprisonment.