United States v. B. Roe

ORDER

The opinion filed September 18, 1992 is withdrawn.

B. Roe pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113 (a), and was sentenced under the United States Sentencing Guidelines to 145 months in prison. She appeals her sentence, arguing that the district court erred in refusing to depart downward from her applicable guideline range based on her history of childhood abuse. She also contends the court erred in failing to state its reasons for choosing her sentence within the guideline range. We have jurisdiction under 18 U.S.C. § 3742 (a)(2) and 28 U.S.C. § 1291 .

DISCUSSION

A. Refusal to Depart

The district court concluded that because the Sentencing Commission considered the effects of childhood abuse in formulating the guidelines, it could depart on that basis only in extraordinary circumstances. See United States v. Boshell, 952 F.2d 1101, 1107 (9th Cir.1991) (if a factor was considered in formulating the guidelines, it may support a departure only in “extraordinary circumstances”). It then determined that although Roe’s history of abuse was shocking, it was not so extraordinary as to warrant a downward departure. We review de novo a district…