US v. Schneider

No. 03-30527 (11-18-05). On the surface, this looks like a standard Ameline remand. The defendant got a 10 month sentence for theft of gov't funds, with an adjustment for the amount. Thus, it goes back for a resentencing. What is unusual about it is detailed in the concurrence of Judge Ferguson, who takes the district court to task for misapplying the guidelines in failing to depart and for failing to give acceptance. the defendant, a former Marine, suffered from a long-term mental illness of bipolar mania and schizophrenia. He had been hospitalized several times and has been on disability. he was hired by the SSA as a teleservices rep (!), the same agency that provided him with SSA. He failed to report that he earned to much for SSA, hence the prosecution. At a resentencing, the court denied a diminished capacity departure. Ferguson said the court only considered the cognitive prong of 5K2.13 and not the volitional prong. "Some" degree of diminishment was required, not a particular degree. Ferguson also said that the court inappropriately used the defendant's demeanor in assessing acceptance, and conflated the requirements for the adjustment. Ferguson was clearly unhappy with the district court .

Congrats to AFPD Steve Sady, D. Ore., for the win.