United States v. Allen, 87 F.3d 1224 (11th Cir. 1996). · Go Syfert
United States v. Allen, 87 F.3d 1224 (11th Cir. 1996). Cases Citing This Book View Copy Cite
10 citation events (7 in the last 25 years) across 5 distinct courts.
Strongest positive: United States v. Michael Devegter (ca11, 2006-02-16)
Top citers, strongest first. 4 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Michael Devegter
11th Cir. · 2006 · confidence medium
See United States v. Mogel, 956 F.2d 1555, 1565 (11th Cir.1992) (finding a woman with “two minor children to support, and a mother that lives with [her]” is not extraordinary); United States v. Ca-cho, 951 F.2d 308, 311 (11th Cir.1992) (having minor children to take care of is not extraordinary); United States v. Allen, 87 F.3d 1224, 1225 (11th Cir.1996) (finding that a defendant with the role of primary caretaker for his 70 year-old father with Alzheimer’s and Parkinson’s diseases is not extraordinary).
discussed Cited as authority (rule) United States v. Palma
D.N.M. · 2005 · confidence medium
See United States v. Gallegos, 129 F.3d 1140, 1146 (10th Cir.1997)(concluding that fact that defendant was sole support for family did not take circumstances out of the heartland); United States v. Webb, 49 F.3d 636, 638-39 (10th Cir.1995)(holding that defendant’s role as sole caretaker did not render circumstances extraordinary); United States v. Allen, 87 F.3d 1224, 1225 (11th Cir.1996)(disallowing downward departure even though defendant was the primary caretaker of 70-year old father who had Alzheimer’s and Parkinson’s diseases as it was not an extraordinary case).
discussed Cited as authority (rule) United States v. David Peterson
8th Cir. · 2003 · confidence medium
See U.S.S.G. § 5H1.6 (family ties and responsibilities are not ordinarily relevant in determining whether sentence should be outside applicable Guidelines range); cf. United States v. Pereira, 272 F.3d 76, 80-83 (1st Cir.2001) (district court must find that defendant is irreplaceable before granting downward departure under Guidelines based on discouraged factor of family obligations); United States v. Drew, 131 F.3d 1269, 1271 (8th Cir.1997) (naive defendant’s alleged vulnerability to abuse in prison, based on his status as child pornographer, did not support downward departure from Guidel…
discussed Cited as authority (rule) United States v. Archuleta
10th Cir. · 1997 · confidence medium
Cases disallowing downward departures based on family ties and responsibilities because they were not extraordinary include the following: United States v. Rybicki, 96 F.3d 754, 758-59 (4th Cir.1996) (responsible for wife with mental health problems and son with neurological problems who was in need of special supervision); United States v. Dyce, 91 F.3d 1462, 1466-67 (D.C.Cir.) (mother with two young children and one infant who was breast feeding), cert. denied, -U.S.-, 117 S.Ct. 533 , 136 L.Ed.2d 418 (1996); United States v. Allen, 87 F.3d 1224, 1225 (llth Cir.1996) (primary caretaker of 72-…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellant,
v.
Sheila Pickett ALLEN, Defendant-Appellee
95-6120.
Court of Appeals for the Eleventh Circuit.
Jul 11, 1996.
87 F.3d 1224
1996 U.S. App. LEXIS 16631
1996 WL 346578
James E. Phillips, Asst. U.S. Atty., Caryl P. Privett, Birmingham, AL, for appellant., David Elliott Hodges, Birmingham, AL, for appellee.
Tjoflat, Cox, Wellford.
Cited by 10 opinions  |  Published
WELLFORD, Senior Circuit Judge:

While working in the installment loan department at First Alabama Bank from 1987 to 1992, defendant Sheila Pickett Allen diverted approximately $138,000 of the bank’s money into her own accounts. [1] Allen admits that, when confronted by bank officials, she initially denied any wrongdoing and later lied about the extent of her illegal activities. Allen eventually pleaded guilty to one count of bank fraud in violation of 18 U.S.C. § 1344.

At sentencing, the district court found that the Guidelines called for a term of imprisonment ranging from twelve to eighteen months, but decided to depart downward under U.S.S.G. § 5K2.0 on the basis of Allen’s family responsibilities. The Presentence Report indicates that Allen is the primary caretaker of her seventy-year-old father, who suffers from both Alzheimer’s and Parkinson’s diseases. Departing five offense levels, the district court ultimately sentenced Allen to one hour of imprisonment, to be followed by thirty-six months of supervised release, and declined to order any restitution or fine. The government’s timely appeal followed.

A court must impose a sentence within the Guidelines range “unless the court finds that there exists 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. § 3553(b). The Sentencing Commission has fully considered family circumstances and concluded that they will not ordinarily support a downward departure. See U.S.S.G. § 5H1.6. Thus, district courts may depart on such grounds only in “extraordinary” eases. United States v. Mogel, 956 F.2d 1555, 1565 (11th Cir.), cert. denied, 506 U.S. 857, 113 S.Ct. 167, 121 L.Ed.2d 115 (1992); United States v. Cacho, 951 F.2d 308, 311 (11th Cir.1992).

In our view, Allen’s family responsibilities, though difficult, are not extraordinary. See Mogel, 956 F.2d at 1565 (holding downward departure inappropriate where defendant had “two minor children to support, and a mother that lives with [her]”); Cacho, 951 F.2d at 311 (holding downward departure not warranted where defendant had four small children); United States v. Brand, 907 F.2d 31, 33 (4th Cir.) (reversing downward departure based on the fact that defendant was sole custodial parent of two young children), ce rt. denied, 498 U.S. 1014, 111 S.Ct. 585, 112 L.Ed.2d 590 (1990); United States v. Brewer, 899 F.2d 503, 508-09 (6th Cir.) (reversing downward departure based, in part, on the fact that defendant was mother of small children), cert. denied 498 U.S. 844, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990); United States v. Goff, 907 F.2d 1441, 1446 (4th Cir.1990) (finding nothing extraordinary about defendant with three children under the age of seven). Although the authority cited involves defendants with small children, we see no reason to treat a defendant who is the primary caretaker of an infirmed parent any[*1226] differently. Thus, we conclude that Allen “ ‘has shown nothing more than that which innumerable defendants could no doubt establish: namely, that the imposition of prison sentences normally disrupts [familial] relationships.’ ” Cacho, 951 F.2d at 311 (quoting United States v. Daly, 883 F.2d 313, 319 (4th Cir.1989), cert. denied, 496 U.S. 927, 110 S.Ct. 2622, 110 L.Ed.2d 643 (1990)); accord United States v. Shortt, 919 F.2d 1325, 1328 (8th Cir.1990) (stating that family responsibilities will not ordinarily support a downward departure, because “[a]ll families suffer when one of their members goes to prison”). [2]

Relying on United States v. Rivera, 994 F.2d 942, 950 (1st Cir.1993), Allen argues that we should defer to the district court’s judgment as to whether her family responsibilities are extraordinary. We disagree. While Rivera admonishes appellate courts to review departure decisions with due regard for the district court’s “superior feel for the case,” it does not require that lower courts be given free reign to decide the propriety of departing in given cases; such unfettered discretion would lead to return of the sentencing disparity that prompted Congress to adopt the Guidelines in the first place.

Allen also cites United States v. Haversat, 22 F.3d 790 (8th Cir.1994), in support of her argument. In that case, the five-level downward departure was held to be unreasonable and some period of confinement was required. (The court noted also the district court’s disdain for the guidelines.) See Williams v. United States, 503 U.S. 193, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992).

For the reasons stated above, we VACATE the district court’s sentencing judgment and REMAND this case for resentencing in accordance with this opinion.

1

. A large portion of the embezzled funds came from an account held by a church,

2

. We note that Allen is not the only family member available to care for her father. The Presentence Report indicates that Allen's husband and adult son presently take care of her father to some extent, and that Allen has a brother and another adult child living nearby.