UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
CROSS-APPELLANT
v.
MARK KEVIN GENTRY, DEFENDANT-APPELLANT, CROSS-APPELLEE
Nos. 89-3491, 90-3097
United States Court of Appeals, Seventh Circuit
Argued January 22, 1991
Decided February 12, 1991
Rehearing Denied March 12, 1991
925 F.2d 186 (7th Cir. 1991)
Rodger A. Heaton, Asst. U.S. Atty., Indianapolis,
Ind., Frances C. Hulin, Asst. U.S. Atty., Danville, Ill., for
plaintiff-appellee, cross-appellant.
Gary F. Geisler, Geisler, Waks & Geisler, Decatur,
Ill., for defendant-appellant, cross-appellee.
Appeal from the United States District Court,
Central District of Illinois.
Before CUMMINGS, COFFEY, and EASTERBROOK, Circuit
Judges.
EASTERBROOK, Circuit Judge.
In the wake of a few maniacs who poisoned foods and
medicines, causing not only deaths but also great expense as firms
recalled their products, there followed extortion: people threatened
to announce that they had poisoned a particular firm's products unless
the manufacturer bought them off. See H.R.Rep. No. 98-93, 98th Cong.,
1st Sess. 3 (1983), 1983 U.S.Code Cong. & Admin.News, p. 1257. To deal
with the plague, Congress enacted 18 U.S.C. § 1365(c)(1), which makes
it a felony to communicate a false report of food tampering.
Kevin Mark Gentry is no extortionist, but he made a
false report of food tampering. On May 2, 1989, he told fellow
employees — plus the security force of the mall where he worked — that
he had bit into a pin when he ate M & M candy bought from a vending
machine. One of Gentry's fellow employees found some metal embedded in
the candy. Sheriff's deputies who investigated the report found
Gentry's claim hard to believe and asked him to take a polygraph test.
Gentry did; the examiner concluded that he was lying; after the
examiner switched off the machine, Gentry confessed that he had put
the pin in the candy and made the report to get attention. He was
prosecuted for violating § 1365(c)(1) and received a sentence of 12
months' imprisonment.
Gentry's two arguments are futile. He contends that
the statement made to the polygraph examiner should have been
suppressed as involuntary, but the district court found with ample
support in the record that Gentry was not in custody at the time he
made the statements and that the entire proceeding, along with the
statements, was voluntary. Gentry also objects to testimony from an
employee of the manufacturer that there were no other reports of pins
in M & M candy. The testimony was relevant; it implies that the pin
came from Gentry rather than the factory (or a tamperer other than
Gentry). And Fed.R.Evid. 803(7) allows this use of business records to
show the nonoccurrence of an event.
The government's cross appeal presents the only
substantial issue. The sentencing guidelines prescribe a base offense
level of 16 for Gentry's crime. U.S.S.G. 2N1.2(a). That translates to
a sentencing range of 21-27 months for one who, like Gentry, has a
short criminal record. The district court departed downward by
sentencing Gentry to 12 months in prison. The judge gave two reasons:
that Gentry's case is atypical, and that Gentry suffers from reduced
mental capacity. The first reason is untenable, the second
inadequately supported.
Congress limited departures from the guidelines to
circumstances "not adequately taken into consideration" by the
Sentencing Commission. 18 U.S.C. § 3553(b). Features that make a crime
sufficiently unusual ("atypical") may well have escaped the
Commission's attention, justifying departure. See U.S.S.G. chapter 1,
part A, Introduction 4(b); United States v. Vasquez, 909 F.2d
235, 240-42 (7th Cir. 1990). Yet the district judge did not identify
any such feature. Indeed, the judge himself characterized as "not a
really strong argument" the proposition that Gentry's crime is
atypical. If the Commission had neglected the difference between false
reports that involve extortion and those that do not, there might be a
basis for departure. But § 2N1.2(b)(1) provides for an increase in the
offense level if the offense involves extortion, and application note
1 suggests upward departure if death, bodily injury, or substantial
monetary loss ensues. Patterns such as Gentry's — no extortion, no
injury, slight monetary loss — then must be the norm for base offense
level 16.
Gentry's mental condition might be the basis of
departure under U.S.S.G. 5K2.13 (policy statement), which provides: If
the defendant committed a non-violent offense while suffering from
significantly reduced mental capacity not resulting from voluntary use
of drugs or other intoxicants, a lower sentence may be warranted to
reflect the extent to which reduced mental capacity contributed to the
commission of the offense, provided that the defendant's criminal
history does not indicate a need for incarceration to protect the
public.
A psychologist concluded that Gentry suffers from
"emotional problems" but could find no mental illness. The record does
not contain a conclusion that Gentry has "significantly reduced mental
capacity", and the district court did not find that any reduction
"contributed to the commission of the offense". Neither the district
judge's sentencing memorandum nor the probation officer's report on
which it was based addresses the subject of causation.
Appellate review of departures from the guidelines
is deferential. United States v. Marshall, 908 F.2d 1312, 1326
(7th Cir.) (in banc), cert. granted on another issue under the name
Chapman v. United States, ___ U.S. ___, 111 S.Ct. 579, 112 L.Ed.2d
584 (1990). We must ensure, however, that before departing the
sentencing judge considered all factors that the guidelines make
relevant. Pointing to a mental condition, without assessing whether
the condition amounts to "significantly reduced mental
capacity" (emphasis added) or whether this reduction "contributed to
the commission of the offense", does not supply the necessary
assurance. Whether § 5K2.13 supports a departure is a question the
district judge should address explicitly, in the terms of that policy
statement. The court should consider, in addition to questions of
severity and causation, whether a false report of tampering is a
"non-violent offense" given the definition of "crime of violence" in
U.S.S.G. 4B1.2(1)(i) and the link between that definition and the term
"non-violent offense" in § 5K2.13.
There is a further question whether the degree of
departure is appropriate. Several cases say that the extent of upward
departure must be linked to the structure of the guidelines. E.g.,
United States v. Fonner, 920 F.2d 1330, 1331-32 (7th Cir. 1990);
United States v. Schmude, 901 F.2d 555, 559-60 (7th Cir. 1990);
United States v. Ferra, 900 F.2d 1057, 1061-64 (7th Cir. 1990);
United States v. Scott, 914 F.2d 959, 963 (7th Cir. 1990).
Downward departures, the mirror image, must be justified in the same
fashion. The project of the guidelines is to produce similar sentences
for similar conduct across the nation, a project that cannot succeed
if the justification for slight departure allows the judge to cast the
guidelines aside. More than 15% of all cases end in departures,
according to the Sentencing Commission's annual report, and excluding
such a large group from the effort to produce consistent sentences
would put a big dent in the structure. Gentry's sentence was cut in
half (to 12 months, from a range with a mid-point at 24 months)
without adequate explanation for the extent of departure. Such a large
percentage change requires explicit justification.
The conviction is affirmed. The sentence is vacated,
and the case is remanded for resentencing consistent with this
opinion.
