XXXX XXXX XXXX,
First, pursuant to U.S.S.G.
, the Probation Department notes that Ms. XXXX' criminal history category (Category V) may significantly over-represent the seriousness of her criminal history.
, the Probation Department notes that Ms. XXXX' post traumatic stress disorder may have contributed to her
commission of the instant offense thereby making her
eligible for a downward departure pursuant to U.S.S.G.
See PSR at 79.
For the grounds set forth in the PSR and elaborated upon below, defense counsel submits that a downward departure is very appropriate in this case.
Defense counsel urges this Court to depart horizontally to Criminal History Category III and depart vertically five levels to Offense Level 8.
This results in a guideline imprisonment range of 6-12 months.
Nevertheless, because the guideline range after the departure would fall in Zone B of the Sentencing Guidelines, the Court could place Ms. XXXX
on probation conditioned on home detention or community confinement.
See U.S.S.G. ¤ 5C1.1(c).
As will be obvious, Ms. XXXX
is in desperate need of psychological counseling and drug counseling.
Undersigned counsel submits that such programs are more likely to be successful if conducted in connection with community confinement as opposed to prison.
This will allow Ms. XXXX
to learn to overcome her
post traumatic stress while functioning in society.
Therefore, counsel submits that a sentence of five years probation conditioned on twelve months community confinement, extensive psychological counseling and drug counseling is appropriate.
Prior to July 25, 1990, XXXX XXXX
lived, more or less, a typical middle class lifestyle.
married young, at age seventeen, after becoming pregnant with her
first child, Michael XXXX, Jr. See PSR at ¦ 49.
After five years, that marriage ended in divorce and Ms. XXXX
took custody of Michael.
Following her separation from Michael XXXX, Sr.
, Ms. XXXX
became romantically involved with Mark Guzy.
at ¦ 50.
Throughout this time, Ms. XXXX
worked and was the priXXXX wage earner.
As noted in the PSR, she worked as a salesperson at Access Unlimited from 1986 to 1990.
at ¦ 59.
During this time, Ms. XXXX
also took various courses.
In 1988, she
trained as a bank teller with Advanced Career Training
at ¦ 56.
In 1989, she
trained as a medical assistant at the National Education Center
Id. As part of her medical assistant training, Ms. XXXX left her job at Access Unlimited and took a job as a nursing assistant with Hillcrest Manor Nursing Home.
at ¦ 58.
Prior to July 25, 1990, Ms. XXXX
had only one prior conviction for writing an insufficient fund check.
at ¦ 25.
had been placed on six months probation and successfully completed the probation.
Id. While Ms. XXXX admits that she
experimented with marijuana and cocaine prior to July 25, 1990, she
was definitely not a regular drug user or dependent upon drugs.
On July 25, 1990, at age 26, Ms. XXXX' life, as she
previously knew it, ceased to exist.
Earlier that week, she
and Mr. Guzy had left Dallas to vacation in Puerto Vallarta, Mexico.
At dinner, on July 24, 1990, Ms. XXXX
had a heated dispute with a hotel waiter over a food order.
Then, on the afternoon of July 25, 1990, the hotel employee and another unidentified male came to Ms. XXXX' hotel room and knocked on the door.
As Mr. Guzy slept, Ms. XXXX
answered the door.
The hotel employee proceeded to pull Ms. XXXX
from the room, hit her
in the face and rip her
then attempted to rape her
effort to escape the would be rapist and the other male, Ms. XXXX
climbed over a small, ivy covered wall thinking that there was a platform to support her
on the other side.
Unfortunately, the wall was part of the hotel's atrium design and Ms. XXXX
, whose clothes had been ripped off, plunged five stories and landed naked in the hotel lobby.
See Attachment A (picture showing fall).
fall, Ms. XXXX
was rushed to a Mexico hospital.
suffered five compressed vertebrae, one of which punctured her
spleen and left kidney resulting in the loss of the kidney.
at ¦ 52.
also suffered six broken ribs, a broken left ankle and a broken left wrist.
The fact that Ms. XXXX
lived at all has been described as "a miracle.
Id. at ¦ 11.
After being "held hostage" for a $7,000 medical bill in Mexico, Ms. XXXX' father, through the intercession of a member of the Texas House of Representatives, arranged for a $7,500 care flight to take Ms. XXXX from Mexico to Parkland Hospital in Dallas.
at ¦ 52.
had two stays at Parkland Hospital
, the first for approximately ten days and the second for approximately four days.
was also hospitalized at Wylie Community Hospital
for injuries that occurred during the attempted rape.
In total, Ms. XXXX
underwent five surgeries, including three outpatient surgeries at Dallas Family Hospital
In addition, she
underwent extensive physical therapy to be able to walk again and to be able to use her
Ms. XXXX' medical bills, excluding Parkland Hospital
where a bulk of the services were performed, totaled $37,794.
While Ms. XXXX
was able to heal physically, she
did not heal emotionally.
Indeed, Ms. XXXX
had totally repressed the assault and had to be hypnotized in order to recall the traumatic events of July 25, 1990.
See Attachment B (Report of Harold B. Crasilneck, Ph.D.).
was ultimately diagnosed with manic depression and post traumatic stress disorder arising out of the brutal attack.
See PSR at ¦ 54.
As a result of her
physical injuries and emotional problems, Ms. XXXX
was unable to return to work following her
release from the hospital.
In January 1991, the Social Security Administration
benefits of $367 per month as a result of her
Id. Nevertheless, because Ms. XXXX
was unable to work, she
home to foreclosure in October 1990.
The loss of the family home made a precarious situation even worse.
family then moved into her
grandparents' home that had been vacant.
This was a home in which Ms. XXXX
had been molested by her
late grandfather until the time she
was approximately ten years old.
Thus, while having to deal with the emotional problems caused by the brutal attack in Mexico, Ms. XXXX next found herself confronted by horrible memories in every corner of her
Ms. XXXX' mental condition continued to deteriorate, although she
did not seek counseling.
turned to drugs and began to self medicate.
This produced a catch-22 situation wherein the drugs caused Ms. XXXX
to avoid confronting her
emotional problems and avoid counseling.
As noted by the Probation Department, "[a] common aspect of the symptomatology of the post traumatic stress disorder is self medication with drugs and/or alcohol.
at ¦ 79.
It was then that Ms. XXXX' serious criminal problems began.
had one theft by check conviction in 1991.
at ¦ 26.
Thereafter, beginning in 1992, Ms. XXXX
had multiple arrests and convictions, mostly all involving the use of bad checks and false identifications.
at ¦¦ 27-34, 42-46.
also was convicted of prostitution and drug possession, both in 1996.
at ¦¦ 35-36.
Of Ms. XXXX'
eleven criminal history points, eight are connected with the various bad check convictions, two with her
prior drug conviction and one with her
prior prostitution conviction.
at ¦¦ 26, 28, 30, 32, 34-36.
Nevertheless, despite Ms. XXXX' several encounters with the criminal justice system, she
has never been given psychological counseling and it has never been a condition of her
It is difficult to appreciate what XXXX XXXX went through on July 25, 1990 and everyday thereafter.
, Ms. XXXX
now recognizes that she
needs psychological counseling in order to help her
cope with the post traumatic stress disorder, including the problem of self medicating with drugs, and live in society.
In this case, as noted above, the Probation Department has identified two grounds for a downward departure.
"It is important...to realize that departures are an important part of the sentencing process because they offer the opportunity to ameliorate, at least in some aspects, the rigidity of the Guidelines themselves.
judges, therefore, need not shrink from utilizing departures when the opportunity presents itself and when circumstances require such action to b