03-2049 U.S. v. Mallon

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“It is awfully hard to describe the crime to which Mallon confessed as the result of poor ‘impulse control.’ Mallon communicated with Marny for more than a month and crossed the Atlantic Ocean to meet her. He knew that what he was doing was wrong; Mallon advised Marny not to tell her mother what was going on and to delete from her computer all copies of the communications. And although Fletcher likely was right to conclude that Mallon suffers from mental disorder of some kind, that would be so of almost every person today who sets out to deceive and have sexual relations with underage girls he has never met. Departures are designed to accommodate the abnormal case, not the person whose problems are common among those who commit the crime in question.

“The two-level departure for a ‘combination of factors’ is weaker still. All of the “factors” but one reflect Mallon’s nationality: he will be in prison far from his family; he may be ineligible for transitional release, such as a halfway house, in the concluding months of his sentence; once the sentence ends, an alien may spend time in custody awaiting removal. The only factor unrelated to Mallon’s citizenship is his health: he suffers from skin cancer as well as heart disease and, although the district judge believed these to be as treatable in prison as outside, she thought that they would make imprisonment more stressful. None of these reasons, individually or in combination, justifies a departure. In the past we have disapproved departures on grounds similar to those the district court invoked, but the deferential standard of review precluded closing the door entirely. See, e.g., United States v. Gallo-Vasquez, 284 F.3d 780 (7th Cir. 2002); United States v. Krilich, 257 F.3d 689 (7th Cir. 2001); United States v. Guzman, 236 F.3d 830 (7th Cir. 2001); United States v. Farouil, 124 F.3d 838 (7th Cir. 1997). Section 401(d) shifts to the court of appeals the decision whether to depart. We hold that departure on the grounds the district judge gave is unwarranted. Combining circumstances that individually do not warrant departure does not alter the outcome.”

Vacated and Remanded.

Appeal from the United States District Court for the Northern District of Illinois, Gottschall, J., Easterbrook, J.