United States of America v. Jose Maldonado-Montalvo

United States Court of Appeals
For the First Circuit
No. 02-1986
UNITED STATES OF AMERICA,
Appellant,
v.
JOSE MALDONADO-MONTALVO,
Defendant, Appellee.
No. 02-2002
UNITED STATES OF AMERICA,
Appellant,
v.
WILFREDO PICON-RIVERA,
Defendant, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Lynch, Circuit Judge,
Cyr and Stahl, Senior Circuit Judges.

-- 1 of 22 --

Robert D. McCallum, Jr., Assistant Attorney General, H.S.
Garcia, United States Attorney, Douglas N. Letter, Attorney,
Appellate Staff, and Matthew M. Collette, Attorney, Appellate
Staff, on brief for appellant.
Raymond L. Sanchez Maceira on brief for appellees.
December 22, 2003

-- 2 of 22 --

1As the government elected to try Maldonado and Picon
separately, each was sentenced by a different district judge.
Since the facts in both cases are virtually identical, however, we
consolidated the two government appeals. Further, the two
sentencing judges employed virtually identical language in
substantiating their “multiple causation” departures, and so for
the sake of simplicity and convenience we quote exclusively from
the sentencing transcript in the Picon case.
-3-
CYR, Senior Circuit Judge. After appellants Jose
Maldonado-Montalvo and Wilfredo Picon-Rivera were convicted of
introducing adulterated milk into interstate commerce, the district
court departed downward from their respective guideline sentencing
ranges on the ground that much of the loss occasioned their victims
was due to factors other than the wrongful conduct of the
defendants.1 In sentencing Picon, the district court granted a
further downward departure on the ground that he suffers from
depression. The government appeals and we once again vacate the
erroneous departure rulings made by the district court.
I
BACKGROUND
For approximately four years — between 1993 and 1997
— Maldonado and Picon, licensed commercial dairy farmers,
adulterated the milk which they sold to a nearby milk-processing
plant by adding salt and water. The salt served to increase the
weight of the water which was added, thereby effectively disguising
the dilution. Moreover, the defendants "bought off" the truck
drivers employed by the milk processor, in order to entice them to

-- 3 of 22 --

2Earlier, the district court had sentenced these defendants on
the premise that their respective offense levels should be 12,
because they should only be held accountable for the contaminated
milk delivered to the processing plant, rather than the total
volume of milk in the silos contaminated by their adulterated milk.
Those sentences were summarily vacated, then remanded for
resentencing in light of United States v. Gonzalez-Alvarez, 277
F.3d 73, 78-79 (1st Cir. 2002) (holding that the total intended
loss includes the entire silo contents).
3The district court departed downward from offense level 18 to
level 12 in sentencing Picon, and from offense level 17 to 12 in
sentencing Maldonado, thereby effectively reinstating their
respective pre-remand sentences. See supra note 2.
-4-
falsify their on-site quality test reports relating to the
adulterated milk. Thus, at the plant the processor unwittingly
mixed the milk which had been adulterated by the defendants with
other regional milk supplies. As a consequence, the defendants
received the Grade A milk price for their adulterated product.
Following their indictment, the defendants entered guilty
pleas to the charge of delivering adulterated milk into interstate
commerce, a felony. See 21 U.S.C. §§ 331(a), 333(a)(2). At
sentencing,2 the district court determined that each defendant was
entitled to a downward departure due to the fact — as the district
court found — that the loss calculation under U.S.S.G. § 2F1.1
(viz., which included all contaminated milk in the processor’s
silos) overstated the amount of loss attributable to their wrongful
conduct. See U.S.S.G. § 2F1.1. Finally, the district court
pointed to Picon’s mental condition as a further basis for its
downward departure. See U.S.S.G. § 5H1.3.3

-- 4 of 22 --

4The defendants originally filed no appellate briefs. In the
interests of justice, we directed that counsel be appointed to
represent them on appeal.
5Section 3553(a)(2) states:
The court shall impose a sentence sufficient, but not
greater than necessary, to comply with the purposes set
forth in paragraph (2) of this subsection. The court, in
determining the particular sentence to be imposed, shall
consider . . . the need for the sentence imposed – (A) to
reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense; (B) to afford adequate deterrence to
criminal conduct; (C) to protect the public from further
crimes of the defendant; and (D) to provide the defendant
with needed educational or vocational training, medical
care, or other correctional treatment in the most
effective manner.
18 U.S.C. § 3553(a)(2).
-5-
On appeal, the government once again seeks to set aside
the downward departure rulings made by the district court.4 We now
reverse and remand for resentencing, before a different judge, in
accordance with this opinion and the accompanying order. See
United States v. Muniz, 49 F.3d 36, 43 (1st Cir. 1995).
II
DISCUSSION
A departure ruling under the Sentencing Guidelines is
reviewed de novo to determine whether it was based upon a factor
that “(i) does not advance the objectives set forth in [18 U.S.C.]
section 3553(a)(2);5 or (ii) is not authorized under section

-- 5 of 22 --

6Section 3553(b) provides, in pertinent part:
[T]he court shall impose a sentence of the kind, and
within the range, referred to in subsection (a)(4) [viz.,
the sentences as prescribed in the Guidelines] unless the
court finds that there exists an aggravating or
mitigating circumstance of a kind, or to a degree, not
adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should
result in a sentence different from that described. In
determining whether a circumstance was adequately taken
into consideration, the court shall consider only the
sentencing guidelines, policy statements, and official
commentary of the Sentencing Commission. In the absence
of an applicable sentencing guideline, the court shall
impose an appropriate sentence, having due regard for the
purposes set forth in subsection (a)(2). In the absence
of an applicable sentencing guideline in the case of an
offense other than a petty offense, the court shall also
have due regard for the relationship of the sentence
imposed to sentences prescribed by guidelines applicable
to similar offenses and offenders, and to the applicable
policy statements of the Sentencing Commission.
18 U.S.C. § 3553(b).
-6-
3553(b);6 or (iii) is not justified by the facts of the case[.]”
United States v. Frazier, 340 F.3d 5, 14 (1st Cir. 2003) (citation
omitted).
A. The Downward Departure Based Upon "Multiple Causation"
In determining their respective sentences, the district
court appropriately attributed to each defendant the entire loss;
viz., the total value of all contaminated milk in the processor’s
silos. See U.S.S.G. § 2F1.1(b)(1); United States v. Reeder, 170
F.3d 93, 109 (1st Cir. 1999) ("‘[T]he victim loss table in U.S.S.G.
§ 2F1.1(b)(1) presumes that the defendant alone is responsible for

-- 6 of 22 --

7Effective November 2001, the Sentencing Commission deleted §
2F1.1, which specifically dealt with fraud offenses, and merged its
provisions into § 2B1.1, which formerly dealt only with theft.
These defendants, however, were sentenced pursuant to the pre-2001
version of the Sentencing Guidelines.
-7-
the entire amount of victim loss specified in the particular loss
range selected by the sentencing court.’") (citation omitted).7
The Guidelines nevertheless permit a downward departure where the
total loss calculation overstates the seriousness of the offense.
See U.S.S.G. § 2F1.1, comment (n.11) (noting that "[in] a few
instances, the loss determined under subsection (b)(1) may
overstate the seriousness of the offense"); cf. U.S.S.G. § 2F1.1,
comment. (n. 11) (1991) (noting that a "downward departure may be
warranted" where the "total dollar loss that results from the
offense may overstate its seriousness," which "typically occur[s]"
when the defendant's fraud "is not the sole cause of the loss").
Theoretically, such a loss overstatement may occur where, inter
alia, “[a]ny portion of the total loss sustained by the victim [is]
a consequence of factors extraneous to the defendant's criminal
conduct.” Reeder, 170 F.3d at 109 (emphasis added); see also
United States v. D’Andrea, 107 F.3d 949, 955-56 (1st Cir. 1997);
United States v. Shattuck, 961 F.2d 1012, 1016-17 (1st Cir. 1992).
As with any guideline departure, however, a “multiple causation”
departure is permitted only if these extraneous factors are “of a
kind, or [are present] to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the

-- 7 of 22 --

-8-
guidelines." 18 U.S.C. § 3553(b)(1); see supra note 6.
1. Economic Hardship
The district court in the instant case identified five
extraneous factors. First, it stated:
[A]s the dairy industry is a profit-driven
entity, dairy farmers are assigned a monthly
milk quota that must be maintained or they
face the reality of negative financial
consequences, to include, reduction or
cancellation of the awarded quota. Less
production by the farmer results in less
profit for the processing plant, thus equates
to financial disaster for the farmer. As
such, caught in a bind to produce or face
financial ruin, the farmers took the best of
the bad options available.
The government in response aptly notes that a defendant's
personal financial difficulties, as well as economic duress upon a
defendant's trade or business, are explicitly prohibited as grounds
for departure under the Sentencing Guidelines. U.S.S.G. § 5K2.12
("The Commission considered the relevance of economic hardship and
determined that personal financial difficulties and economic
pressures upon a trade or business do not warrant a decrease in
sentence."); see Koon v. United States, 518 U.S. 81, 93 (1996);
United States v. Sachdev, 279 F.3d 25, 28 (1st Cir. 2002); United
States v. Perez, 160 F.3d 87, 89 (1st Cir. 1998) (en banc); United
States v. Rivera, 994 F.2d 942, 949 (1st Cir. 1993). “Forbidden
factors can never serve as the basis for a [guidelines] departure.”
United States v. Martin, 221 F.3d 52, 57 (1st Cir. 2000) (emphasis

-- 8 of 22 --

8It is noteworthy that not even the defendants contend on
appeal that economic hardship constituted a valid ground for the
downward departure ordered by the district court.
-9-
added).8
2. The Coconspirators’ Assistance
As the next basis for its “multiple causation” departure,
the district court opined:
[T]he fraud was also significantly perpetuated
by the delivery [truck drivers] hired by the
processing plant as they were entrusted with
protecting the interests of the processing
plant, trained to test for the quality of the
milk product, and the authority to reject an
unacceptable product, and responsibility for
exposing farmers operating contrary to laws
regulating consumer products. In a calculated
and self-serving fashion, they recruited,
encouraged farmers, or were themselves lured
to engage in the adulteration of the milk to
assist the farmers in meeting their quota for
profit.
Assuming these district court statements contemplate that
the loss calculations were inflated, in that the defendants did not
commit the charged offenses alone but conspired with others to
achieve their unlawful goal, the Sentencing Guidelines explicitly
treat with any such factor. See 18 U.S.C. § 3553(b)(1). That is
to say, the district court must attribute to the defendants the
amounts of loss resulting from "all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken
criminal activity." U.S.S.G. § 1B1.3(a)(1)(B); see United States
v. Marino, 277 F.3d 11, 37 (1st Cir.), cert. denied, 536 U.S. 948

-- 9 of 22 --

-10-
(2002); United States v. Adeniji, 221 F.3d 1020, 1027 (7th Cir.
2000); United States v. Duliga, 204 F.3d 97, 100 (3d Cir. 2000).
It is patently clear that the defendants in the instant
case fit this description, in that they concededly paid cash to the
delivery truck drivers for aiding the concealment of their
adulterations. The defendants incorrectly contend that the record
demonstrates that the truckers sometimes acted independently of
them. In arguing against a more-than-minimal-planning enhancement
at the sentencing hearing, defense counsel merely observed that the
truck drivers could have loaded adulterated milk at the defendants’
farms without the need for the defendants’ physical presence, since
the truck drivers had ready access to the necessary equipment and
supplies. Defense counsel’s observation – which is unsupported by
the record, see United States v. Brassard, 212 F.3d 54, 57 (1st
Cir. 2000) (noting that counsel’s remarks do not themselves
constitute evidence), and which was raised merely to characterize
the modus operandi of the defendants’ conspiracy as rudimentary –
does not preclude a reasonable inference that the defendants who
were not physically present had prior knowledge of, or gave prior
consent to, the unsupervised loadings conducted by their
coconspirators.
The defendants further contend that the presentence
report (PSR) states that other unidentified farmers, neither known
to the defendants nor involved in their conspiracy, already had

-- 10 of 22 --

-11-
delivered contaminated milk to the plants, and thus were
exclusively responsible for at least a portion of the actual milk
loss. Quite the contrary, the PSR states simply that the milk in
the silos “may” have been contaminated by other farmers. The
record contains no evidence, however, that any other farmer in fact
delivered bad milk to the same silos or at the same times as the
defendants’ deliveries. See United States v. Sepulveda, 15 F.3d
1161, 1198-99 (1st Cir. 1993) (noting that sentencing findings must
derive from some identifiable evidentiary basis in record). In any
event, the defendants are not only responsible for the actual loss,
but for the intended loss, see United States v. Gonzalez-Alvarez,
277 F.3d 73, 80-81 (1st Cir. 2002) (noting that defendant is
responsible for intended loss if it exceeds actual loss), and it is
beyond serious dispute that these defendants intended and foresaw
that their adulterated milk would end up in the silos and
contaminate the entire contents, resulting in a total loss of all
those milk stocks. Accordingly, we conclude that the purported
conduct of the truck drivers, whether or not defendants’
coconspirators, cannot constitute a legitimate ground for a
“multiple causation” departure.
3. The Conduct of the Victim's Agents
The district court went on to identify the purported
complicity of the milk plant employees in the defendants’ milk-
adulteration scheme as a further factor providing support for its

-- 11 of 22 --

-12-
downward departure:
[I]t was business as usual at the processing
plant as it was well known who were the
truckers engaged in the adulteration of milk.
However, plant managers neglectfully turned
the other way, consciously failed their duty
and responsibility to expose the corrupt
truckers to their superiors or authorities,
and contributed to the lawful (sic) practice
by assuring that the profitable routes
involving farmers actively adulterating milk
were assigned to the corrupt truckers. It
would be incredulous (sic) that the
managerial/supervisory staff at the processing
plant was not aware or could not have been
aware of the unlawful adulteration process,
therefore, [it] significantly contributed to
the total loss through aiding and abetting.
A victim's conduct may warrant a downward departure where
the victim significantly contributed to an increase in the amount
of loss. See, e.g., United States v. Rostoff, 53 F.3d 398, 407 n.8
(1st Cir. 1995). Assuming, arguendo, that the same rule might
apply even though the defendants injured other victims who
concededly did not contribute to the loss (viz., milk consumers),
the evidentiary record in the instant case cannot meet such a
standard. First, there is no record support for the district
court’s supposition that the plant managers knew or should have
known of the adulteration perpetrated by the defendants, nor that
the plant managers acted either negligently or improperly. See
Sepulveda, 15 F.3d at 1198-99. But cf. Rostoff, 53 F.3d at 407 n.8
(noting that defrauded bank officials conducted themselves in
“incredibly negligent fashion” by approving fraudulent loans “with

-- 12 of 22 --

-13-
an abandon commonly associated with drunken sailors,” and routinely
violated official bank policies).
Moreover, these defendants "paid off" the truck drivers
for the very purpose of obtaining their assistance in disguising
their own adulteration of the milk upon its arrival at the plant.
Consequently, there is simply no record evidence that the
adulteration would have been patently obvious to any other
employees at the plant. Cf. U.S.S.G. § 2F1.1, comment. (n.11)
(providing that downward departure for inflated loss may be
warranted where “no one would seriously consider honoring” the
fraudulent instrument); United States v. LeRose, 219 F.3d 335,
338-39 (4th Cir. 2000) (noting lack of record evidence that bank’s
conduct affected amount of loss, or that negotiated instrument was
“obviously fraudulent”).
4. Sentencing Manipulation
As a fourth basis for its downward departure, the
district court concluded that the government contributed to the
amount of the loss:
The [FDA] agent also played a role in the
overall accumulation of loss as he decided
when enough information had been gathered to
initiate the prosecution of the defendant,
contributed to the actual adulteration of the
milk, and allowed the adulterated milk to
reach the silos at the processing plant. The
defendant was charged with eleven separate
acts of adulteration spanning a period of
approximately four years. As such, the number
of times the defendant was allowed to engage
in the adulteration process corresponds to the

-- 13 of 22 --

-14-
number of times the delivery truck was also
increasing the volume of adulterated milk.
Government manipulation designed solely to increase the
severity of a criminal sentence may afford a ground for departure,
provided there is sufficient record evidence to demonstrate that
the government acted in “bad faith.” See Gonzalez-Alvarez, 277
F.3d at 80-81 (noting that calculation of amount of intended loss
was based on defendant’s assumption that government would not
discover his adulteration). “Given the wide latitude we afford the
government in conducting sting operations, ‘the burden of showing
sentencing factor manipulation [necessarily] rests with the
defendant. As with other fact-sensitive sentencing issues, the
burden of proof must be carried by a preponderance of the
evidence.’" United States v. Rizzo, 121 F.3d 794, 801 (1st Cir.
1997) (citation omitted). "[G]arden variety manipulation claims
are largely a waste of time." United States v. Montoya, 62 F.3d 1,
4 (1st Cir. 1995).
Since the record on appeal in the instant case fails to
suggest so much as a hint of bad faith on the part of the
government, the defendants have failed to sustain their burden of
proof, and the "factfinding" engaged in by the district court must
be set aside as plainly speculative and clearly erroneous. See
United States v. Gibbens, 25 F.3d 28, 30 (1st Cir. 1994).
5. Absence of Injury to Public Health
Finally, the district court opined that the record

-- 14 of 22 --

9Furthermore, the relevant PSRs disclosed that (i) the
defendants used contaminated, unsanitary water to dilute their
milk; and (ii) the FDA reported that these additions “could have
caused the introduction of bacterial/viral organisms that are not
eliminated properly by the pasteurization process and resulted in
known and unknown health problems.” The defendants counter that an
official of ORIL, the Commonwealth’s milk regulatory agency, stated
that “the pasteurization process would have killed all harmful
-15-
contained no evidence that the milk supplied by the defendants
adversely affected any consumer’s health:
[T]he commission of the offense did not result
in any actual financial loss or health
problems. The dairy industry has confirmed
that any potential health hazard would have
been neutralized and the below grade quality
of the milk would have been enhanced through
the treatment, processing, and commingling of
the adulterated milk in the silos. As such,
the product substitution caused by the
addition of non-harmful agents, that is water
and salt, would equate to the same guidelines
imprisonment range, absent an upward
departure, as that of a defendant who
introduced harmful agents to the final milk
product or defrauded the victim of an actual
$900,000.
On these identical facts, however, this court had already
held that (i) the same processor and the ultimate consumers of its
milk were all victims of the crimes committed by these defendants;
(ii) the ultimate consumers sustained actual financial loss, in
that the consumers paid Grade A milk prices for milk which was
adulterated and worthless as a matter of law; and (iii) the
defendants' supposition that the consumers sustained no injury to
their health by reason of the adulterated milk was insupportable.
Gonzalez-Alvarez, 277 F.3d at 80.9 The case at bar is factually

-- 15 of 22 --

bacteria as required by federal regulations.” We agree with the
government’s contention that this statement does not contradict the
FDA statement on the futility of pasteurization. The ORIL
official, whose announced intention was merely to show that the
defendants’ milk was relatively uncontaminated, stated that
pasteurization of defendants’ milk would kill all bacteria in
unadulterated milk that government-mandated pasteurization is
expected to kill, whereas other bacteria or impurities might have
remained in appellees’ adulterated milk even after pasteurization,
which in turn would have reached the consumer who purchased the
non-Grade A milk. See 21 U.S.C. § 331(a) (prohibiting distribution
of any non-Grade A milk in interstate commerce).
10We note that the district court, upon remand following our
previous vacatur of these defendants’ sentences, see supra notes 2
& 3, once again departed downward to the same Sentencing Guidelines
ranges relied upon prior to our remand, and that both district
judges employed virtually identical language in rationalizing their
departures. Insofar as this course of action may connote the
district court's subjective dissatisfaction with the Guidelines’
sentencing constraints, it is manifestly unavailing. See United
States v. Studley, 907 F.2d 254, 260 (1st Cir. 1990) (“Regardless
of how well founded, a belief by the sentencing judge that the
punishment set by the Commission is too severe or that the
guidelines are too inflexible may not be judicial grounds for
departure under the sentencing system mandated by Congress.”)
(emphasis added).
-16-
indistinguishable from Gonzalez-Alvarez.
Although certain factors relied upon by the district
court may be appropriate components of a “multiple causation”
departure in particular circumstances, the instant decision related
specifically to the evidence in this case. Thus, we simply hold
that whether evaluated individually or collectively, the five
factors identified by the district court in the instant case do not
constitute appropriate grounds for a downward departure.10
B. The Mental-Health Departure
The district court discerned an additional ground for its

-- 16 of 22 --

-17-
downward departure from the applicable guideline sentencing range
with respect to Picon:
Shortly after his initial arrest in connection
with the instant case, defendant Picon
developed mental health problems requiring
professional attention to include
pharmacology. His subsequent depressed
financial situation forced him to sell his
contract with the milk industry, cease
operations as a dairy farmer, file for
bankruptcy, and maintain odd jobs resulting in
meager wages all of which contributed to
exacerbating his mental health condition.
Prolonged incarceration would worsen the
defendant’s mental health condition and result
in greater costs to the United States. The
Court understands that all defendants
initially suffer from emotional problems at
the time of their arrests or during the
commencement of the prosecutorial process, but
most are able to overcome the condition.
However, in the case of Mr. Picon, that is the
defendant, he has not been able to do so.
Pursuant to his therapist, defendant’s
prognosis is guarded. I have examined the
therapist’s evaluation submitted to the court.
The government contends on appeal that the district court
abused its discretion in relying upon Picon’s mental-health
condition as a ground for its downward departure, because it failed
to make the requisite express finding that the Bureau of Prisons is
unable to provide Picon with adequate treatment for his condition.
The Sentencing Guidelines provide:
Mental and emotional conditions are not
ordinarily relevant in determining whether a
sentence should be outside the applicable
guideline range, except as provided in Chapter
Five, Part K, Subpart 2 (Other Grounds for
Departure). Mental and emotional conditions
may be relevant in determining the conditions

-- 17 of 22 --

11Picon has never contended that his pre-existing depression
played any role in the commission of the underlying offense. See
U.S.S.G. § 5K2.13 (1997) (“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.”).
-18-
of probation or supervised release; e.g.,
participation in a mental health program (see
§§ 5B1.3(d)(5) and 5D1.3(d)(5)).
U.S.S.G. § 5H1.3.11 Nevertheless, departures based upon a
defendant’s mental condition are discouraged, see United States v.
Aker, 181 F.3d 167, 173 (1st Cir. 1999); see also Rivera, 994 F.2d
at 948, which means that the sentencing court must first make a
finding that the mental condition is extraordinary or atypical, see
Koon, 518 U.S. at 94-95; United States v. Rivera, 192 F.3d 81, 85
(2d Cir. 1999); United States v. Pullen, 89 F.3d 368, 371 (7th Cir.
1996).
The government’s reliance upon United States v. Studley,
907 F.2d 254 (1st Cir. 1990), is misplaced. The narrow issue in
Studley was whether the sentencing court should depart downward in
the event that the Bureau of Prisons were not equipped to treat the
defendant’s mental condition. Id. at 259. Whenever the
sentencing court intends to depart downward under U.S.S.G. § 5H1.3,
however, it must first determine that the defendant’s mental
condition presents an “extraordinary” or “atypical” case. See
United States v. Doering, 909 F.2d 392, 394-95 (9th Cir. 1990)

-- 18 of 22 --

12In June 1999, the symptoms included sadness, generalized
anxiety, poor motivation, indifference, memory loss, poor attention
span, and psycho-motor retardation.
13Picon successfully engaged in a prolonged legal battle with
his ex-wife to retain visitation rights with his seven-year-old
daughter.
-19-
(holding that defendant’s need for treatment, standing alone, is
not an adequate ground for departure); see also United States v.
Moses, 106 F.3d 1273, 1280 (6th Cir. 1997) (same). Although the
unavailability of an adequate prison-treatment program could
conceivably give rise to an "extraordinary" case, that is not a
sine qua non for a U.S.S.G. § 5H1.3 departure. Thus, for example,
a sentencing court might determine that a defendant’s mental
condition is such that a lengthy imprisonment would work
irreparable harm, thereby rendering irrelevant the availability vel
non of prison-treatment programs.
Turning to this threshold issue, and bearing in mind that
departures under U.S.S.G. § 5H1.3 are discouraged, our own
examination of the medical evaluation relating to Picon’s mental
condition clearly reveals that the district court erred in
determining that Picon’s mental condition is extraordinary. Dr.
Cesar Padilla Maldonado, Picon's psychiatrist, opined that the
indictment had caused Picon major or severe depression,12 which
resulted in business failures and family rifts.13 Importantly,
however, Dr. Maldonado acknowledged that once placed on anti-
depressant and anti-anxiety medications, Picon had shown marked

-- 19 of 22 --

-20-
improvement. See United States v. Peterson, 225 F.3d 1167, 1171
(10th Cir. 2000) (noting that defendant’s treatment for depression
and anxiety not “unusual”); see also U.S. Dep’t of Health and Human
Servs. Substance Abuse and Mental Health Servs. Admin., Nat’l
Mental Health Info. Ctr., Bulletin Vol. 3, No.2 (2003), available
at http://www.mentalhealth.samhsa.gov/default.asp (reporting that
depression affects almost one in ten American adults); Nat’l Inst.
of Health, Depression Research Fact Sheet (Apr. 2, 2002), available
at http://www.nimh.nih.gov/publicat/depresfact.cfm (“Depressive
disorders affect approximately 19 million American adults.”).
Moreover, Picon consistently has denied suicidal
ideation. Cf. United States v. Harpst, 949 F.2d 860, 863 (6th
1991) (rejecting downward “mental health” departures based on
defendant’s suicidal tendencies). Nor has he ever been diagnosed
with any extreme form of mental disease, such as psychosis or
schizophrenia. Cf. United States v. Barton, 76 F.3d 499, 502 (2d
Cir. 1996) (vacating § 5H1.3 departure absent evidence defendant
suffered from psychosis, where defendant’s sense of morality
remained intact, and “[h]e appreciate[d] both the societal and
moral constraints of his behavior”); United States v. Lauzon, 938
F.2d 326, 333 (1st Cir. 1991) (noting that defendant’s “borderline
intelligence” was not ground for § 5H1.3 departure). Although Dr.
Maldonado opined that a three-year term of imprisonment would be a
“catastrophic blow” to Picon, nothing in the record on appeal

-- 20 of 22 --

14The district court’s statement that Picon’s “[p]rolonged
incarceration would . . . result in greater costs to the United
States” is also an inappropriate basis for its departure decision.
See United States v. Maldonado, 242 F.3d 1, 4-5 (1st Cir. 2001)
(noting that costs of incarceration normally are not grounds for
downward departure); United States v. Wong, 127 F.3d 725, 728 (8th
Cir. 1997) (same).
-21-
suggests that Picon’s depression, however unfortunate, rises to the
level of the "extraordinary." Undoubtedly, imprisonment is
stressful. With or without a § 5H1.3 departure, however, Picon
will be required to serve some prison time, yet will continue to
receive the same effective treatment in prison.14 As Picon's
commission of the criminal offense constituted the catastrophic
event which precipitated his conviction and imprisonment, the
adverse consequences flowed from his voluntary criminal conduct and
ensuing guilty plea. See United States v. Walker, 27 F.3d 417,
418-19 (9th Cir. 1994) (holding that defendant’s arrest-induced
depression, anxiety and sleeplessness were “irrelevant for
sentencing purposes,” given that “[p]ost-arrest emotional trauma is
a natural consequence of being charged with a crime”).
Accordingly, the record in the present case discloses no material
basis — evidentiary or legal — for concluding that the Sentencing
Guidelines permitted a § 5H1.3 departure, or for that matter, any
other type of guideline departure.
The sentences imposed by the district court are hereby
reversed; the cases are remanded for further proceedings consistent
with this opinion. Upon remand, the cases shall be assigned to a

-- 21 of 22 --

-22-
different judge for sentencing in accordance herewith. SO ORDERED.

-- 22 of 22 --