finds "there exists an aggravating or mitigating circumstance of
a kind, or to a degree, not adequately taken into consideration"
by the guidelines. See 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0.
Before a departure is permitted, the court must find that aspects
of the case are "unusual enough for it to fall outside the
heartland of cases in the Guideline." See Koon v. United
States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).
Pacheco argues she should be granted a downward departure based
on the danger that accompanied her cooperation, the conditions of
her confinement, her family responsibilities, her coercion by
Santos, and her agreement to deportation. The danger accompanying
Pacheco's cooperation is taken into consideration in granting the
motion for downward departure for substantial assistance. See
infra. However, the record before the court does not permit a
section 5K2.0 departure on this basis. The court also finds that
the other factors advanced by Pacheco are not so unusual to fall
outside of the heartland of cases.
First, the conditions of Pacheco's confinement do not warrant a
departure. While exceptionally hard conditions of confinement
might qualify for a departure, see United States v. Sutton,
973 F. Supp. 488, 492-94 (D.N.J. 1997), aff'd 156 F.3d 1226 (3d Cir.
1998), a defendant must demonstrate to the court that the
conditions compare unfavorably to those suffered by other
inmates. See id. at 494-95 (rejecting departure because
defendant did not show that his conditions of confinement
deviated from the norm); United States v. Ogembe, 41 F. Supp.2d 567,
571 (E.D.Pa. 1999) (same). Pacheco alleges federal
facilities for women are generally less favorable than those for
men, but she does not indicate that her confinement is worse that
of other female inmates in general, or the other women in her
facility in particular. There is not enough evidence on the
record to support a finding that Pacheco's incarceration is so
extraordinarily bad to allow this court to depart from the
Sentencing Guidelines, although the facilities at the Warsaw,
Virginia jail do sound deplorable and the circumstances should be
reviewed by the Bureau of Prisons.
Second, a departure because of family circumstances cannot be
granted. In order to be granted such a departure, a defendant
must show that his or her incarceration would have an
extraordinary impact on family members. See, e.g., United States
v. Gaskill, 991 F.2d 82, 86 (3d Cir. 1993) (finding that
extraordinary family circumstance existed because defendant was
the sole caretaker of his mentally ill wife); United States v.
Shoupe, 929 F.2d 116, 121 (3d Cir. 1991) (holding that
defendant's separation from his young son did not justify a
downward departure); U.S.S.G. § 5H1.6 (stating that family ties
and responsibilities are not ordinarily relevant in considering a
downward departure). Here, Pacheco has not alleged that her young
child, who is being cared for by Pacheco's mother, is suffering
unusually because of their separation, and thus there are no
grounds for departure due to family circumstances. Many, if not
most, defendants have children, and separation alone will not
usually permit a departure on this basis.
Third, Pacheco's request for a departure under U.S.S.G. §
5K2.12 due to "serious coercion, blackmail or duress" is denied.
Although the standard of coercion is broader than that needed to
prove a complete defense at trial, a defendant still must prove
duress at the sentencing by a preponderance of the evidence to
qualify for such a departure. See United States v. Cheape,
889 F.2d 477, 480-81 (3d Cir. 1989). A defense of duress requires a
defendant to show an immediate threat of death or serious bodily
injury, a well-grounded fear that the threat will be carried out,
and no reasonable opportunity to escape the threatened harm. See
United States v. Santos, 932 F.2d 244, 249 (3d Cir. 1991). A
defendant requesting a sentencing
departure for duress need not show proof of immediacy or
inability to escape, nor is the feared injury the defendant must
show limited to bodily injury. See Cheape, 889 F.2d at 480.
Moreover, the Sentencing Guidelines allow a court to adopt a
subjective standard for determining duress, rather than the
objective standard needed to prove duress as a defense. See
United States v. Ezeibuaku, Crim. A. No. 94-42, 1995 WL 263983,
at *4 (D.N.J. May 3, 1995); U.S.S.G. § 5K2.12. However, the
record before the court regarding the extent and degree of the
alleged abuse and coercion of Pacheco by Santos consists of
general allegations of abuse and is simply not sufficient to
support a departure on such grounds.
Finally, Pacheco's offer to agree to immediate deportation does
not provide a basis for a departure. A district court cannot
depart from the guidelines based on an offer to agree to
deportation unless the Attorney General requests such a departure
and the defendant has a non-frivolous defense to deportation.
See United States v. Marin-Castaneda, 134 F.3d 551, 555 (3d
Cir.), cert. denied, 523 U.S. 1144, 118 S.Ct. 1855, 140 L.Ed.2d
1103 (1998). In Pacheco's case, neither condition has been met.
See 8 U.S.C. § 1227(a)(2)(B) (mandatory deportation for any
alien who is convicted of a violation of the law relating to a
Downward Departure for Substantial Assistance
The court will, however, grant the government's request for a
downward departure for substantial assistance. Pacheco's early
cooperation, the aid she provided to the government, and the risk
of danger to herself and her family due to her assistance provide
the court with ample grounds to depart from the Sentencing
Guidelines under U.S.S.G. § 5K2.0.
An appropriate order follows.
AND NOW, this 15th day of September 1999, upon consideration
of the Defendant's Sentencing Memorandum, the Government's
Sentencing Memorandum and Motion for Downward Departure under
U.S.S.G. § 5K2.0, and after a hearing, it is hereby ORDERED
1. The defendant's request not to receive a
three-level enhancement for her role in the offense
2. The defendant's requests for downward departures
pursuant to U.S.S.G. §§ 5K2.0 & 5K2.12 are
3. The government's motion for a downward departure
due to substantial assistance is GRANTED.