United States v. Laina J. McCracken Vieke

The United States appeals the district court’s downward departure to probation granted to Laina J. McCracken Vieke (“Vieke”) on the basis of the aberrant nature of her credit card abuse and identity theft pursuant to United States Sentencing Guideline § 5K2.20. Jurisdiction is proper before this court pursuant to 28 U.S.C. § 1291 .

I

In March of 2001, Vieke’s parents discovered that their daughter was responsible for obtaining approximately $50,000 in fraudulent credit card charges in their names. Following a two count grand jury indictment, Vieke entered a guilty plea to one count of identity theft in violation of 18 U.S.C. § 1028 (a)(7).

Vieke requested, and the presentence investigation report recommended, two grounds for departure. First, she requested departure on the basis of diminished capacity pursuant to Guideline § 5K2.13, contending she suffers from a compulsive gambling disorder. Second, she requested departure on the basis of aberrant behavior pursuant to Guideline § 5K2.20.

The Government objected to the departure based on diminished capacity. It explained as the basis for its objection that gambling addiction is not one of the recognized impairments…