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U.S. v. ROACH

August 22, 2005.

UNITED STATES OF AMERICA
v.
ELIZABETH ROACH.



The opinion of the court was delivered by: MATHEW KENNELLY, District Judge

MEMORANDUM OPINION AND ORDER

Elizabeth Roach pled guilty to a charge of wire fraud arising from her knowing submission of fraudulent expense reports to her employer, Andersen Consulting. Under the Sentencing Guidelines, her criminal history category was I and her offense level was 13, yielding a sentencing range of 12 to 18 months imprisonment. In June 2001, the Court granted Ms. Roach's motion for a downward departure under U.S.S.G. § 5K2.13 on the ground she had committed the offense while suffering from a significantly reduced mental capacity. United States v. Roach, No. 00 CR 411, 2001 WL 664438 (N.D. Ill. June 4, 2001). The Court imposed a sentence of five years' probation, with conditions of six weeks of community confinement ("work release"), and six months of home confinement with electronic monitoring on weekends, in addition to restitution of $241,061 and a $30,000 fine.

The Seventh Circuit reversed. United States v. Roach, 296 F.3d 565 (7th Cir. 2002). The court noted that although Ms. Roach's circumstances "suggest[ed] a basis for leniency," the Sentencing Guidelines "significantly limit a district court's ability to fashion a sentence based on such considerations." Id. at 573. The court held that Ms. Roach had failed to establish that she had a significantly impaired capacity to control her conduct at the time of the offense and thus was not entitled to a departure under § 5K2.13. Id. at 572-73. Ms. Roach's petition for certiorari was denied.

  On remand, the Court rejected Ms. Roach's attempt to supplement the record regarding her capacity at the time of the offense, holding this was foreclosed by the Seventh Circuit's ruling and the scope of the remand. United States v. Roach, No. 00 CR 411, 2003 WL 21183997 (N.D. Ill. May 20, 2003). The Court imposed a prison sentence of one year and one day, which was at the low end of the Guideline range. On appeal, the Seventh Circuit affirmed, rejecting Ms. Roach's argument that this Court had erred in declining to reopen the record. United States v. Roach, 372 F.3d 907 (7th Cir. 2004).

  While Ms. Roach's petition for certiorari was pending before the Supreme Court, that Court held in United States v. Booker, 125 S.Ct. 738 (2005), that mandatory application of the Sentencing Guidelines violated the Sixth Amendment rights of criminal defendants, and thus declared that the Guidelines could not longer be applied in mandatory fashion. Henceforth, the Court ruled, judges were to impose sentence pursuant to the requirements of 18 U.S.C. § 3553(a), which require consideration of the applicable Guideline range and the Sentencing Commission's policy statements, but also require consideration of additional factors. Ms. Roach's case was remanded to the Seventh Circuit for reconsideration in light of Booker.

  The Seventh Circuit remanded Ms. Roach's case to this Court. Its remand order described the sentence this Court had originally imposed, briefly reviewed the procedural history, and stated: "After Booker and United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), we now understand that the district court should have been free to fashion the very sentence it intended to impose originally." United States v. Roach, No. 03-3078, unpublished order (7th Cir. May 9, 2005). The Court vacated Ms. Roach's sentence and remanded the case for resentencing.

  Following remand, the Court obtained an update of the presentence report and written submissions from the parties. The Court also heard an extended oral presentation on August 18, 2005.

  Discussion

  The Supreme Court held in Booker that mandatory application of the Sentencing Guidelines violated the Sixth Amendment, and as a result it invalidated the statutory enactments that made the Guidelines mandatory. Following Booker, courts are to determine sentences pursuant to the factors set forth in 18 U.S.C. § 3553(a). Section 3553(a) directs a court to impose a sentence that is sufficient, but not greater than necessary, to comply with certain statutory purposes, including the need for the sentence to reflect the seriousness of the crime; promote respect for the law; provide just punishment; afford adequate deterrence; protect the public from further crimes by the defendant; and provide the defendant with needed training, medical care, or correctional treatment in the most effective manner. See 18 U.S.C. § 3553(a)(2). In considering the particular sentence to be imposed, a court is to consider those same factors, as well as the nature and circumstances of the offense; the history and characteristics of the defendant; the kinds of sentences available; the sentencing range under the Sentencing Guidelines; any pertinent policy statements by the Sentencing Commission; the need to avoid unwarranted sentence disparities among defendants with similar records found guilty of similar conduct; and the need to provide restitution to victims of the crime. Id. § 3553(a)(1)-(7).

  The Court has conducted the analysis required under § 3553(a) and has considered each of the statutory factors in determining Ms. Roach's sentence. We summarize our reasoning below.

  The parties agree that the Sentencing Guidelines call for a prison term of between twelve and eighteen months, although, under Booker, the Guideline range is not mandatory but rather is a factor to be considered along with the other factors in § 3553(a). As the Seventh Circuit previously ruled, the Sentencing Guidelines' policy statements — primarily the policy statements regarding the appropriate grounds for departures, including § 5K2.13 — do not counsel in favor of a sentence outside the Guideline range.

  Ms. Roach's crime was a very serious one. It required significant planning and involved repeated acts of fraud and abuse of trust over an extended period. This Court previously found that Ms. Roach knew that what she was doing was wrong, and the Seventh Circuit rejected the contention that she had an impaired ability to control the actions that constituted the offense. If the nature and circumstances of the offense were the only factors to be considered, there is no question that the statutory factors of reflecting the seriousness of the offense, promoting respect for the law, affording adequate deterrence of others, and providing just punishment would call for imposition of a term of imprisonment.

  But under § 3553(a), a court is required to consider more than the nature and circumstances of the offense. The parties have devoted most of their time to discussion of Ms. Roach's history and characteristics and how, if at all, they should affect the sentence. The Court takes the following brief summary of Ms. Roach's history of psychiatric disorders and their treatment from the April 2003 report of one of the government's retained experts, Donald Black, M.D., who in turn derived it from his review of Ms. Roach's treatment records:
The records indicate that Ms. Roach has an extensive psychiatric history dating to childhood and adolescence, when she was reportedly sexually molested by a relative, and developed an eating disorder. She also has a remote history of deliberate self-harm, for example burning herself with cigarette butts or cutting. She has received some form of psychiatric treatment much of her adult life, including various forms of psychotherapy (talk therapy) as well as psychotropic (psychiatric) medication. Her compulsive shopping behavior began during her college years and the records indicate that it has continued to the present, suggesting that it has been chronic for nearly 30 years. There is no indication of significant remission. She has also had at least one documented incident of shoplifting (in 1999), during which she was apprehended, adjudicated, and given a probationary sentence. Her diagnoses are generally recorded and billed as "depression," "dysthymia," or "depressive disorder not otherwise specified" (note from Northwestern Department of Psychiatry) or chronic major depression (memo of Dr. Galatzer-Levy, November 12, 2002) and "compulsive buying" or "compulsive shopping."
Report of Donald Black, M.D., dated Apr. 28, 2003 (omitting certain citations).

  As Ms. Roach's treating psychiatrist has reported, she is a "severely depressed individual?" who has experienced periods of "intense suicidal depression." Report of Arnold Goldberg, M.D. dated Nov. 20, 2000. As Dr. Goldberg has more recently reported, Ms. Roach's "proclivity to engage in excessive shopping was seen to involve an activity that relieved her basic underlying severe depression. This depression dated from early childhood and had never been adequately managed." Report of Dr. Arnold Goldberg, M.D. dated June 17, 2005. Ms. Roach "is a member of a group of severely depressed individuals who handle periods of intense suicidal depression by indulging in ...


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