United States v. Rachelle L. Miller

991 F.2d 552 UNITED STATES of America, Plaintiff-Appellant, v. Rachelle L. MILLER, Defendant-Appellee. No. 92-30083. United States Court of Appeals, Ninth Circuit. Submitted Feb. 2, 1993 * . Decided April 15, 1993. John C. Carver, Asst. U.S. Atty., Seattle, WA, for plaintiff-appellant. Murray B. Guterson, Culp, Guterson & Grader, Seattle, WA, for defendant-appellee. Appeal from the United States District Court for the Western District of Washington. Before: TANG, KOZINSKI and FERNANDEZ, Circuit Judges. KOZINSKI, Circuit Judge: 1 A. Rachelle Miller pled guilty to embezzling money from the bank for which she worked. Her Guidelines sentence range was 12 to 18 months, but the district judge departed downward and sentenced her to three years probation plus six months home detention. The government appealed, claiming the district court gave an insufficient explanation of its reasons for departing, and we remanded for resentencing. The district court reimposed the same sentence, this time with a full explanation, and the government appeals again. 2 B. The first reason the district court gave for departing--that Miller has two small children who "would be placed at potential risk," ER…

A. Rachelle Miller pled guilty to embezzling money from the bank for which she worked. Her Guidelines sentence range was 12 to 18 months, but the district judge departed downward and sentenced her to three years probation plus six months home detention. The government appealed, claiming the district court gave an insufficient explanation of its reasons for departing, and we remanded for resentenc-ing. The district court reimposed the same sentence, this time with a full explanation, and the government appeals again.

B. The first reason the district court gave for departing — that Miller has two small children who “would be placed at potential risk,” ER G at 14, if Miller is sent to jail — is improper. The Commission considered whether family responsibilities should affect the sentence, and concluded they “are not ordinarily relevant in determining” whether to depart. U.S.S.G. § 5H1.6. And there’s nothing extraordinary about this case. Miller “has shown nothing more than that which innumerable defendants could no doubt establish: namely, that the imposition of prison sentences normally disrupts ... parental relationships.” United States v. Berlier, 948 F.2d 1093, 1096 (9th…

Concurring in part and dissenting in part:

I concur in various aspects of the majority’s opinion, but must respectfully dissent because the majority does not give due deference to the district court’s discretion in sentencing. The unique combination of factors in this case constitutes a sufficient mitigating circumstance justifying a downward departure from the Sentencing Guidelines range. See United States v. Cook, 938 F.2d 149, 153 (9th Cir.1991).

I.

Rachelle Miller and two other employees embezzled a total of $45,623 from the City Bank of Lynnwood, Washington. The other employees were not prosecuted, and the loss has never been apportioned among the three people, although Miller admitted that she was involved to some extent in all of the transactions. Prior to engaging in plea negotiations with the government, Miller attempted to arrange restitution with the bank; she offered to pay the bank $40,000 *555 to settle a civil lawsuit if the bank would release a lien it had placed on the family’s home so that Miller and her husband could refinance the home to pay the bank. The bank refused to release the lien. Had the bank done so, Miller contends that she would have paid…