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.
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 ...