Free Motion for Departure - District Court of Arizona - Arizona

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Nancy Hinchcliffe
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Nancy Hinchcliffe State Bar No. 004052

11 West Jefferson, Suite 2 Phoenix, Arizona 85003 (602) 252-3200 Attorney for Defendant UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Derek Ralph Mitzel, Defendant. No. CR-03-1060-PHX-PGR Defendant Mitzel's Sentencing Memorandum re Medical Condition, Request for a Mitigated Sentence or, in the Alternative, Motion for Downward Departure

Defendant Derek Mitzel by his attorney, Nancy Hinchcliffe, moves this Court to impose a mitigated sentence of 37 months or, in the alternative, moves for a downward departure of four levels due to Mitzel's extraordinary physical impairment pursuant to the advisory United States Sentencing Guidelines1, Section 5H1.4. Dated this _____ day of August, 2005. s/ Nancy Hinchcliffe Attorney for Defendant Mitzel MEMORANDUM I. Facts Derek Mitzel is a 42 year old insulin dependent diabetic who must take insulin injections twice a day. [Attachment 1] He developed this disease (Type I Diabetes) as a child and has suffered greatly from it throughout his life. [See Sentencing Letters of Ralph and Arlene Mitzel] As is noted in his medical records, Mitzel is a "41 year old Caucasian male Hereinafter referred to as advisory U.S.S.G.
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11 West Jefferson Suite 2 Phoenix, AZ 85003

Phone: (602) 252-3200 Fax: (602) 258-1018 e-mail: [email protected]

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with a thirty year history of Type I Diabetes. . ." [Attachment 2, 4 and 8] Most importantly, as a result of the diabetes, Mitzel suffers from "Chronic Renal Failure secondary to diabetic nephropathy." [Attachment 4] His eyesight is worsening. He suffers from diabetic retinopathy and has undergone many laser surgeries on his eyes (diffuse photocoagulation of the retina). As a result, he has progressively diminishing visual acuity. [Attachment 3-4 and 7] In the past several months, Mitzel has suffered "intermittent moderately severe pain in the left neck area radiating into the left arm and forearm and occasionally associated with weakness . . . ." in his upper left side, which has resulted in impaired range of motion in Mitzel's left shoulder with diminished reflex in his biceps. [Attachment 3, 6, 8 and 11] This pain has become consistent and fairly severe. It radiates toward the right shoulder and is bothersome when Mitzel lays down. He has limited range of motion in his neck and continues to experience decreased range of motion in his left shoulder primarily in abduction. The left upper extremity reveals a decreased grip strength, decreased biceps' reflex and decreased abduction of the shoulder. [Attachment 13-14] An MRI was needed to rule out cervical disc disease versus diabetic peripheral neuropathy. [Attachment 5 and 17-19] He has undergone an MRI procedure which has determined that: Prominent reversal of the normal cervical lordosis. There is no evidence of a significant canal or foraminal stenosis at any disc space level. There is mild paracentral non lateralzing disc protrusion/herniation at C4-C5 with mild impression on the ventral subarachnoid space, this is best identified on transverse images. A significant ventral extra-dural is not identified at the other disc space levels. There is some narrowing of the C6 vertebral body. [Attachment 8 and 20-21] He may need spinal surgery although this has not yet been determined. Recently, Mitzel consulted with a neurologist at the Maricopa Medical Center but his records were not provided to the neurologist. Thus, his appointment needed to be rescheduled. A nerve conduction study, done at the Maricopa Medical Center, shows that Mitzel suffers from carpal tunnel syndrome at the left wrist. [Attachment 23-24]

Attorney

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11 West Jefferson Suite 2 Phoenix, AZ 85003

Phone: (602) 252-3200 Fax: (602) 258-1018 e-mail: [email protected]

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Mitzel also has developed a cyst, a reoccurring problem for him, on the right occipital area (head) which has been treated and removed. [Attachment 11 and 25-26] As is noted from the medical records, Mitzel suffers from kidney disease, high blood pressure/hypertension, hepatitis A, neuropathy, diabetic retinopathy (resulting in several retinal laser surgeries), along with the neurological problems outlined aboved. [Attachment 6, 8 and 13-16] The actual medications that he receives varies from time to time but includes medication for kidney disease/high blood pressure, insulin (two types) for twice daily injections. Because of the back and neck pain, mentioned above, he has been prescribed muscle relaxants and pain medication. [See Attachment 3-4 and 13-14] According to these records, Mitzel suffers from "[c]ognitive dysfunction which will complicate his care." [Attachment 4] It is important for diabetics to exercise and to eat a proper diet in order to maintain a proper sugar level. Mitzel has suffered two episodes, while incarcerated, of diabetic seizures, due to low blood sugar levels. This results in a loss of consciousness and convulsions. [Attachment 13 and 27-28] II. Points and Authorities Sentencing is controlled by 18 U.S.C. § 3553. Section 3553(a) directs the court to ". . . impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection." Those purposes include the need for the sentence imposed: (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner 18 U.S.C. § 3553(a)(2) The sentencing factors to be considered, in addition to those set forth above in (A)

Attorney

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11 West Jefferson Suite 2 Phoenix, AZ 85003

Phone: (602) 252-3200 Fax: (602) 258-1018 e-mail: [email protected]

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through (D) above, include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) [set forth above in (A) through (D)]; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established pursuant to the advisory U.S.S.G., along with (5) any pertinent policy statement; (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. 18 U.S.S.G. § 3553 (a) In the remedy majority's opinion in U.S. v. Booker, ___ U.S. ___, 124 S.Ct. 2531 (2004), the Supreme Court held that the sentencing guideline are "effectively advisory" in all cases. As a result, the guidelines are now just one factor, among several, that sentencing courts are required to consider in imposing a sentence that is "sufficient but not greater" than necessary" to achieve the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). Defendant Derek Mitzel requests the Court to depart downward at least four levels, pursuant to advisory U.S.S.G § 5H1.4, for the reasons discussed below. U.S.S.G. § 5H1.4 states: Physical condition or appearance, including physique, is not ordinarily relevant in determining whether a departure may be warranted. However, an extraordinary physical impairment may be a reason to depart downward; e.g., in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment. Drug or alcohol dependence or abuse is not a reason for a downward departure. Substance abuse is highly correlated to an increased propensity to commit crime. Due to this increased risk, it is highly recommended that a defendant who is incarcerated also be sentenced to supervised release with a requirement that the defendant participate in an appropriate substance abuse program (see § 5D1.3(d)(4)). If participation in a substance abuse program is required, the length of supervised release should take into account the length of time necessary for the supervisory body to judge the success of the program. Similarly, where a defendant who is a substance abuser is sentenced to probation, it is strongly recommended that the conditions of probation contain a requirement that the defendant participate in an appropriate substance abuse program (see § 5B1.3(d)(4)). Addiction to gambling is not a reason for a downward departure. A court is authorized to impose a sentence outside the advisory Guidelines range, pursuant to 18 U.S.C. § 3553(b) when there is a circumstance not adequately considered by
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Attorney

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11 West Jefferson Suite 2 Phoenix, AZ 85003

Phone: (602) 252-3200 Fax: (602) 258-1018 e-mail: [email protected]

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the Sentencing Commission in formulating those provisions which govern a given sentence. U.S. v. Roth, 1995 WL 35676 (S.D.N.Y.)2 The court must decide if Mitzel's physical impairments meet the guideline definition and, if so, to what extent a downward departure or alternate sentence is appropriate. U.S. v. Slater and Porter, 971 F.2d 626, 635 (10th Cir. 1992) Mitzel maintains that his medical condition, in combination as described above, demonstrates his extraordinary physical impairment. U.S. v. Carey, 895 F.2d 318, 324 (7th Cir. 1990) If the court finds an extraordinary physical impairment, then it needs to determine if a shorter term of imprisonment is warranted or some alternative to confinement3. Slater and Porter, 971 F.2d at 635; U.S. v. Martinez-Guerrero, 987 F.2d 618, 621 (9th Cir. 1993)(concurring opinion). In U.S. v. Slater and Porter, 971 F.2d 626, 634 (10th Cir. 1992), Porter had both mental and physical disabilities. He was borderline mentally retarded, suffered from chronic major depressive disorder and drug abuse. His physical disabilities included spondylosis and scoliosis of the spine. As a result, Porter endured disabling back pain and severe headaches leading to his inability to work. The appellate court remanded the case for re-sentencing since the trial judge erroneously believed that he was without authority, under 18 U.S.C. § 5H1.4, to depart because § 5H1.4 was "confined solely to non-custodial sentences in which defendant's physical impairment required hospitalization." Slater and Porter, 971 F.2d at 634 "[I]f an extraordinary physical impairment is shown to exist, a sentencing court is not faced with an all-or-nothing choice between GSR-range imprisonment or no imprisonment, but may lawfully decide to impose a reduced prison sentence below the GSR." U.S. v. Martin,

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11 West Jefferson Suite 2 Phoenix, AZ 85003

Roth, age 63, suffered from amyotrophic lateral sclerosis ("ALS"), "a progressive, incurable, debilitating neuro-muscular disease." The district court found a downward departure warranted due to this extraordinary physical condition.
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Mitzel recognizes that his plea agreement calls for a mandatory prison sentence.
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363 F.3d 25, 51 (1st Cir. 2004) Thus, if the Court determines that Mitzel's condition constitutes extraordinary physical impairment, it can depart downward and impose a lesser prison sentence. In U.S. v. Gee and Norris, 226 F.3d 885 (7th Cir. 2000), the court held that the sentencing court did not abuse it's discretion in finding that Norris's medical condition warranted a downward departure. After reviewing his medical records along with a videotaped deposition of his cardiologist, observing Norris in court, and listening to the testimony of Norris and his therapist, the district court decided that "imprisonment posed a substantial risk to Norris's life and, therefore, departure under U.S.S.G. § 5H1.4 was warranted."4 Id. at 902 According to the medical records, Mitzel suffers from cognitive dysfunction which complicates his care. In a prison setting, it is difficult for Mitzel to exercise at a consistent time and place. Additionally, his dietary intake varies. He must depend on others to provide the correct food and in a timely manner. As is demonstrated by the record, he has become semi-conscious and suffered convulsions because of improper sugar levels. In U.S. v. Greenwood, 928 F.2d 645 (4th Cir. 1991), the appellate court determined that a downward departure was warranted for Greenwood's severe medical impairment due to his loss of both legs below the knee. Greenwood, a convicted felon, was convicted for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). The court sentenced Greenwood to 4 years probation. The government appealed. Greenwood, 928 F.2d at 646 In ruling that a downward departure was appropriate, the court found that Greenwood's loss of his legs during the Korean War resulted in a severe medical impairment that required treatment at the V. A. Hospital and that incarceration would jeopardize his

Attorney

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11 West Jefferson Suite 2 Phoenix, AZ 85003

While finding that a downward departure was warranted, the appellate court vacated his sentence and remanded for re-sentencing because the court departed outside the guidelines by imposing home detention. U.S. v. Gee and Norris, 226 F.3d at 903
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treatment. Id. at 646 In another case, U.S. v. Moy, 1995 WL 311441 (N.D.Ill), the court departed from a 78-97 month sentencing range to a 30 month sentencing range, in large part, because of the defendant's age and extraordinary physical condition. Moy, age 78, suffered from a severe medical condition, an emotionally depressive state, and needed to constantly care for his aged and infirm wife. Finally, in U.S. v. Baron, 914 F.Supp. 660, 661 (D.Mass. 1995), the appellate court upheld a downward departure, under 18 U.S.C. § 5H1.1 (age and infirmity), regarding the sentencing of a 76 year old man with a "variety of quite substantial medical problems." In upholding this departure, the court stated that Judge Weinstein5 summed up the issue best: The best policy considerations can be unnecessarily cruel when applied rigidly and without exception to individual human beings . . . Some [offenders] would be destroyed by a term in prison. There are defendants for whom prison incarceration makes no sense. Derek Mitzel is one such human being. He respectfully requests the Court to grant a downward departure of four levels based upon his extraordinary physical impairment. But even if the Court determines that a 5H1.4 departure is not warranted, it should consider his poor physical condition in carrying out the mandate of 18 U.S.C. § 3553(a). A 37 month sentence is sufficient, but not greater than necessary, to comply with this mandate as well as the sentencing factors set forth in 18 U.S.C. § 3553(a). See U.S. v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000) ("One of the factors listed in Section 3553(a) is a defendant's need for medical care. The district court specifically considered Bravo's `serious medical condition and his age,' noting this as a reason for choosing, in accordance with Section 3553(a), to lessen Bravo's sentence from 210 months to 168 months.") and U.S. v. Rounsavall, 115 F.3d 561, 567 fn 3 (8th Cir. 1997) (After the appellate court affirmed the district court's refusal to depart below the statutory minimum sentence, the court opined in

Attorney

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11 West Jefferson Suite 2 Phoenix, AZ 85003

Weinstein, Prison Need Not Be Mandatory, There are Options Under the New U.S. Sentencing Guidelines, 28 No. 1 Judge J. 16 (1989)
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footnote 3: "Physical condition ought to be a consideration in sentencing. Serious illness may very well bear on whether a defendant might commit other crimes. Further, it is a waste of prison resources and taxpayers' money to imprison seriously ill persons for long periods of time when such imprisonment means hospital and medical care at government expense") Dated this 4th day of August, 2005. s/ Nancy Hinchcliffe Attorney for Defendant Counsel certifies that an Original memorandum with attachments was electronically filed through CM/ ECF this 4th day of August, 2005, with: Clerk of the U.S. District Court Sandra Day O'Connor U.S. Courthouse Suite 130 401 West Washington St., SPC-1 Phoenix, Arizona 85003-2118 Copy of this memorandum with attachments delivered/mailed this 4th day of August, 2005, to: Carlos Valentin U.S. Probation Officer 401 West Washington St., SPC 7 Suite 160 Phoenix, Arizona 85003-2119 Frederick Battista Assistant U.S. Attorney Two Renaissance Square 40 North Central Ave. Suite 1200 Phoenix, Arizona 85004-4408 By: s/

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11 West Jefferson Suite 2 Phoenix, AZ 85003

Phone: (602) 252-3200 Fax: (602) 258-1018 e-mail: [email protected]

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