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January 30, 1998


The opinion of the court was delivered by: BUCKLO

 The defendant in this case, Randall Wilke, has moved for a departure from the sentencing range set by the Sentencing Guidelines as being applicable for a typical person in his circumstances. For the reasons stated in this opinion, I have concluded that a departure downward to a level 12 is warranted in this case.

 The first ground upon which Mr. Wilke seeks a departure is his vulnerability to abuse in prison. Mr. Wilke is a Caucasian man, 46 years old, of average height and weight. His demeanor makes him appear smaller than he is because he appears passive and meek. He is also homosexual.

 Mr. Wilke pled guilty to the charge of sending in interstate commerce a videotape in which minors are depicted engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(1). Mr. Wilke agreed that relevant conduct included the possession of three or more magazines or videotapes which depicted minors in sexually explicit conduct, which conduct violates 18 U.S.C. § 2252(a)(4)(B). As part of his plea agreement Mr. Wilke agreed to forfeit various computer equipment and other material. He also agreed, at his own expense, to undergo counseling. Mr. Wilke has done so since the time of his plea.

 Mr. Wilke's adjusted offense level under the Sentencing Guidelines is 16. This includes a base level of 15, the addition of two levels pursuant to 2G2.2(b)(1), two more levels due to the stipulated conduct, and a reduction of three levels for acceptance of responsibility. Mr. Wilke had no criminal history points. Accordingly, under the Sentencing Guidelines, Mr. Wilke would receive a sentence of incarceration, having a minimum period of 21 months.

 In seeking a departure based on his particular susceptibility to abuse in prison, Mr. Wilke offered to produce evidence that because of his appearance and the type of crime for which he had pled guilty, he would not be safe from abuse in federal prison. I held an evidentiary hearing at which time both Mr. Wilke and the Government put on evidence.

 George Valdes testified on behalf of Mr. Wilke. Mr. Valdes is an adjunct professor at Wheaton College in Illinois. He holds a masters degree and is working on his Ph.D. dissertation in bible history. He is also a research assistant at Loyola University, and is married and has four children. He was recently named Hispanic Doctoral Student in America by the Pugh Foundation. Mr. Valdes began preparing for his present life after a religious conversion in 1989. Following his conversion, he pled guilty to various drug offenses for which he had been arrested, and testified on behalf of the United States in a drug prosecution. Before this, Mr. Valdes had been a high ranking member of the Medallin Drug Cartel. As a result of his activities, he was incarcerated in U.S. prisons approximately 10 years, serving time under two sentences at different times in eight institutions.

 Mr. Valdes testified that inmates always know the crime for which another inmate is convicted. He also testified that an inmate convicted of any sexual crime involving minors is at the bottom of the pecking order among the prison population, and will be sexually molested by other inmates. He also testified that such inmates are at greater risk of even greater bodily harm, including death, because of the low esteem in which they are held by violent persons who have few persons that they can look down upon. Mr. Valdes testified that an inmate who attacked Mr. Wilke would be regarded as a hero by other inmates. Mr. Valdes concluded that he has met and observed Mr. Wilke, and that Mr. Wilke's demeanor -- someone who does not look like he could fight and obviously frightened -- will make him even more vulnerable.

 I found Mr. Valdes to be a credible witness. The Government countered with four witnesses. Essentially, the Government's position was that sexual assault does not occur in U.S. prisons. *fn1" Despite this, one of the Government witnesses admitted that sexual assault is a problem in U.S. prisons. Another testified that probably not all assaults get reported and another testified that an inmate reporting an assault may become the target of further assault. A representative of the Bureau of Prisons also testified that while all institutions have protective custody arrangements, a perception of danger is insufficient to enable an inmate to enter protective custody. Furthermore, if an inmate complains of sexual assault and it is later found "not substantiated," the inmate will be released back into the general population. One Government witness testified that beds are available in a special program for sexual deviants at Butner, but that inmates in the program are housed in the general prison population, which includes inmates with psychological problems of all types, including some who are psychotic and others with "serious abnormalities."

 Particular vulnerability to physical abuse is an established basis for departing from the sentencing range set by the Sentencing Guidelines. Koon v. United States, 518 U.S. 81, 116 S. Ct. 2035, 2053, 135 L. Ed. 2d 392 (U.S. 1996); United States v. Graham, 317 U.S. App. D.C. 418, 83 F.3d 1466, 1481 (D.C. Cir. 1996); United States v. Lara, 905 F.2d 599 (2d Cir. 1990).

 The Government argues that the fact that a defendant may be more likely to be subject to sexual or other physical abuse because of his crime is not a basis for departure from the Sentencing Guideline range set by the Sentencing Commission. Various cases have stated that one's status as a member of a particular group, whether law enforcement, or child pornographer, cannot alone provide sufficient reason for departure from the otherwise applicable guideline range. E.g., United States v. Kapitzke, 130 F.3d 820 (8th Cir. 1997); United States v. Rybicki, 96 F.3d 754 (4th Cir. 1996).

 The present case differs from these situations in two respects. First, Mr. Wilke is likely to be exposed to extraordinary punishment not just because of his crime but because of his sexual orientation and his passive, meek demeanor. In addition, Mr. Wilke has presented credible testimony that substantiates his fear that he will be exposed to assault in prison. *fn3" Mr. Wilke's motion for a downward departure from the applicable Guideline range based on his vulnerability to abuse in prison is therefore granted.

 Mr. Wilke also seeks a departure from the general Sentencing Guideline range based on exceptional community and charitable activities. Exceptional community or charitable activities may provide a basis for departure from the Sentencing Guidelines. E.g., United States v. Grandmaison, 77 F.3d 555, 564 ...

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