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September 30, 2002


The opinion of the court was delivered by: Matthew F. Kennelly, United States District Judge


This is, thankfully, an unusual case. Defendant Sheila Matthews pled guilty to kidnapping a sixteen month-old child ("Girl A") on December 24, 2001, in violation of 18 U.S.C. § 1201 (a). Matthews' boyfriend Dewallis Harris had recently been released from a California prison. While Harris was imprisoned Matthews falsely told him that she had given birth to a daughter whom he had fathered, and she sent him a photograph purporting to be that of the child. Matthews said she had named the girl after Harris's mother and grandmother. In September 2001, after Harris's release and return to his home in the Chicago area, Matthews contacted him from West Virginia, where she said she was living with their daughter. Harris traveled to West Virginia to see the child, but was told by Matthews that the girl was in Florida with Matthews' mother. Matthews had displayed in her home the same photograph that she had sent to Harris in prison, in a frame with the inscription "Daddy's Little Girl." Hats returned to the Chicago area.

Matthews came to Chicago on December 24, 2001 to visit Harris and his mother and family. She told them that her mother would be bringing their daughter to Chicago that evening via Greyhound bus. On Christmas eve, Harris' mother drove Matthews to the Chicago Greyhound bus station and waited outside in her car; Matthews went inside, where she said her mother's bus was expected to arrive soon.

Inside the station, which was quite crowded due to heavy holiday travel, Matthews — presumably after casing the entire joint — saw Girl A's mother Marcella Anderson, who was in the station with her two daughters, Girl A, who was sixteen months old, and her four year old sister. They had traveled from St: Louis by air and planned to take a bus to Milwaukee. Anderson, who was hauling several bags, was worn out from the travel and from trying to deal with two tired and cranky young children. While Anderson she waited in a long line to purchase tickets, Matthews approached her, complimented her on Girl A, and asked the child's name and age. Matthews then left and later returned after Anderson had purchased tickets; in the meantime she had exited the station and told Harris' mother, who was waiting in the car, that her (Matthews') mother's bus was running late.

Matthews returned to Anderson, introduced herself as "Christine," and engaged her in conversation. She asked Anderson where she was going, and when she said Milwaukee, Matthews said that it was too bad she had not known that earlier, as she planned to drive there herself after her college-age daughter's bus arrived, and could have given Anderson and her children a ride. A few minutes later, she offered Anderson a ride to Milwaukee, and after some initial reluctance, Anderson accepted, hoping to ease the burden of travel. Anderson got in line to cash in her bus ticket. Matthews said she would hold Girl A, and Anderson handed the child to her. After a minute or two, Matthews said that she had spotted her own daughter, and started to walk off with Girl A. Anderson asked Matthews to leave the girl with her, but Matthews said "don't worry," and Anderson turned back to the ticket window to sign the receipt necessary to cash in her ticket. By the time she looked again, Matthews and Girl A were disappearing around a corner. Anderson and an unidentified man who had helped her with her luggage attempted to give chase, but they lost sight of Matthews and the child because the station was so crowded.

Matthews took the child outside, where Harris' mother was still waiting in the car. Matthews had been inside the station only 15 minutes since returning to tell Harris's mother about the delay in the arrival of the bus. She approached the car running and carrying the child and told Harris' mother they had to hurry up and leave because Matthews' husband was following her. They returned to the mother's house and had Christmas dinner the next day with Harris' relatives.

Around 7 p.m. on December 26, Matthews, Harris, and Girl A began a 12-hour drive to West Virginia. They stopped only once. Early the next morning, while it was still dark and they were one hour from their destination, they had an accident after sliding on ice, and Girl A appears to have sustained a small cut on her forehead. Their car was towed, and Matthews' sister picked them up and took them to Matthews' home in West Virginia.

In the meantime, Harris' mother — who had been suspicious because Girl A did not look like the photo she had seen of Matthews' purported daughter — learned from a friend of media reports about the kidnapping of a small child from the Chicago Greyhound station. After seeing on television a picture of the child and Matthews, who evidently had been identified from mug books, she went to the police and provided them with information about where Matthews and Boyfriend A were traveling. Girl A was recovered by FBI agents and local West Virginia police on December 27, 2001, and she was returned to her mother the following day. Aside from the apparent cut on her forehead and an car infection and accompanying fever, she was in good health.

Matthews pled guilty "blind" (i.e., without a plea agreement) on May 31, 2002. In connection with her guilty plea, Matthews submitted a written declaration in which she admitted her guilt and described, in general terms, how she had kidnapped Girl A. Prior to sentencing, she submitted to the Probation Office for transmission to the Court a written statement in which she stated as follows:

I realy cant exsplain why I did it. I have never been the one to hurt anybody, physically or meantally. I do hate myself for what I did. I have flash backs and it realy hurts me in my heart. I cry at times knowing I hurt sombody meantally. I wish I could turn back times I would have never did what I did.
I know that I was very wrong, but Im asking for another chance to prove that I'm not a life times criminal. I do have good points about myself. By me doing what I did I lost a lot, my pride, self asteam, and im trying very hard not to loose full respect for myself And I know that I have lost respect from others but I would very much like to prove myself to the Community cause I know how people feel about me, and I was realy wrong and I send my remorce and heart out to the family and let them know that I am very sorry. Please try to find it in there heart to except my apoligey.
My God is helping me through this. I know I have a lot to do. I practice more of my religion. Go to AA/NA and I have also finished some class's. Now I know I must grow up and stay away from evil.
When I do get out I want to re open my bussiness go to college, counsleing, AA/NA and make a better life for my children and myself
I realy hope you'all find it in your hearts to give me some hope that I'll have the chance to live a better life.

Thank You Sheila Matthews

On September 26, 27, and 30, 2002, the Court held an evidentiary hearing regarding various disputed Sentencing Guidelines issues and the government's request for an upward departure on various grounds. The remainder of this Memorandum Opinion will address those issues.

1. Offense level issues

It is undisputed that the base offense level under U.S.S.G. § 2A4.1 is 24. There are three disputed issues concerning proposed adjustments to the offense level.

a. U.S.S.G. § 2A4.1 (b)(6)

The government argues that Matthews placed Girl A, a minor, in the "care or custody of another person who does not have a legal right to such care or custody of the child either in exchange for money or other consideration," thus warranting a three-level increase. See U.S.S.G. § 2A4.1 (b)(6). It relies upon evidence that others (primarily Harris' mother) watched Girl A for brief periods while she smoked cigarettes and performed other personal tasks at the mother's house, and it claims that Harris "was entrusted with driving the vehicle while on route to West Virginia." Govt. Mem. at 20. The government cites no authority supporting application of the increase under similar circumstances. Matthews never relinquished care or custody of Girl A to anyone; the fact that someone else may have watched her for a few minutes does not, in the Court's view, constitute "plac[ing] [her] in the care or custody of another person," and certainly not in the way likely contemplated by the Sentencing Commission when it drafted this aspect of § 2A4.1. More importantly, no "money or other consideration" was provided by or to Matthews for these brief intervals; the government's reliance on a claim that she was hoping to continue her relationship with Harris does not suffice, and in any event was not something expected specifically in return for Harris' mother watching the child for a few minutes. Finally, Girl A was in Matthews' care and custody at all times during the drive to West Virginia; there is no reason to believe that the enhancement should apply whenever a defendant who has kidnapped someone takes a form of transportation in which someone else is at the controls. The government has failed to provide evidence sufficient to establish that the adjustment should be made.

2. U.S.S.G. § 3A1.1 (b)(1)

The government argues that the Court should increase the offense level by two levels on the grounds that "the defendant knew or should have known that a victim of the offense was a vulnerable victim." U.S.S.G. § 3A1.1(b)(1). A vulnerable victim is one who is "unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to criminal conduct." Id., App. Note 2. This increase does not apply "if the offense guideline specifically incorporates" the factor that makes the victim vulnerable. Id. Thus, "if the offense guideline provides an enhancement for the age of the victim, this subsection would not be applied unless the victim was unusually vulnerable for reasons unrelated to age." Id. (emphasis added); see United States v. Romero, 189 F.3d 576, 590 (7th Cir. 1999).

The kidnapping statute provides for a "special rule" in sentencing persons convicted of kidnapping an unrelated child under age 18. 18 U.S.C. § 1201 (g). That "special rule" directed the Sentencing Commission to include enhancements by including a number of specific offense characteristics providing for enhancements, including the "care and custody of another person" enhancement in U.S.S.G. § 2A4.1 (b)(6). 18 U.S.C. § 1201 (g)(2). But nothing in the offense guideline for kidnapping offenses incorporates an enhancement based specifically on age; the only age-related offense characteristic is the "care and custody" enhancement that the Court has already held does not apply. For these reasons, ...

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