United States v. Deegan

dissenting.

This case concerns the crime of neonaticide, which is the killing of a newborn child on the first day of life. This crime is practically unknown in the federal courts. Neonaticide is a crime relating to family and domestic concerns and, thus, federal courts do not generally deal with these crimes. Indeed, excluding habeas cases, my research has disclosed only one other reported federal case discussing and deciding a neonaticide crime. See United States v. Tom, 494 F.3d 1277 (10th Cir. 2007), rev’d and remanded to 327 Fed. Appx. 93 (10th Cir.2009).

In the view of this judge, the procedure followed and the imposition of a ten-year-plus prison sentence on Ms. Deegan, a young American Indian woman, represents the most clear sentencing error that this dissenting judge has ever seen.5

For reversal, the dissent relies on the following Supreme Court cases: Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d *637892 (1996), and the holdings in United States v. Alvizo-Trujillo, 521 F.3d 1015 (8th Cir.2008), and United States v. Greene, 513 F.3d 904 (8th Cir.2008). See also Kimbrough v. United States, 552 U.S. 85, 91, 96, 109, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (discussing and commenting on sentencing procedure and stating the greatest respect to variance from guidelines when particular case is outside the “heartland”).

I.

SUMMARY OF CONTENTIONS AND STANDARD OF REVIEW

A. Summary of Contentions

Ms. Deegan’s crime consisted of a special sort of homicide called “neonaticide,” well documented in medical and legal literature, which describes the conduct of a parent, ordinarily the mother, who is often suffering from depression or other mental illness causing the death of an infant child within twenty-four hours of birth.

First, Ms. Deegan’s conduct as neonaticide does not now, nor has it ever, come within the “run-of-the-mine” guidelines for second-degree murder, the charge to which Ms. Deegan pleaded guilty. But the district court mistakenly believed that this case fell within the second-degree murder guidelines. Thus, the sentence imposed was proeedurally gross error.

Second, the district court presumed that the guidelines were reasonable. This is plain error.

Third, because this case is outside the heartland of second-degree murder cases, the district court’s 18 U.S.C. § 3553(a) analysis was flawed at its beginning, and this case required imposition of a sentence completely apart from the guidelines and under § 3553(a). This the district court did not do.

Fourth, analysis of the § 3553(a) factors demonstrates that Ms. Deegan’s sentence is substantively unreasonable. The district court’s approach to sentencing served to elevate a guidelines sentence above an individualized assessment of the facts and circumstances of this ease. Each error compounded the next one and these mistakes require reversal and remand.

Finally, the failure to follow proper sentencing procedures and methodology led to a highly excessive sentence for Ms. Deegan. Her crime requires a different approach than taken by the district court and approved by the majority.

B. Standard of Review

I express my disagreement with the majority’s application of plain error in reviewing this sentence. In my view, defense counsel preserved the errors argued on appeal.

The majority asserts:

On appeal, Deegan argues that the sentence of 121 months’ imprisonment is unreasonable, because the advisory guideline for second-degree murder is not based on empirical data and national experience, and because the sentence imposed is greater than necessary to comply with the statutory purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). As we understand Deegan’s brief on appeal, she argues that the district court committed both procedural and substantive errors when imposing sentence. Deegan raised no procedural objection in the district court, so we consider her claims of procedural error under the plain-error standard. United States v. Gray, 533 F.3d 942, 945 (8th Cir.2008) which requires as conditions for relief that Deegan show an obvious error that affected her substantial rights and seriously affected the fairness, integrity, or reputation of judi*638cial proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We review the substantive reasonableness of the sentence under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007).

Maj. op. at 629.

Further, the majority reviews the following under the plain error standard: (a) the district court’s failure to meaningfully discuss the § 3553(a) factors, id. at 629-30; (b) treating the advisory guidelines as mandatory, id. at 631; (c) procedural error by applying the 2007 Guidelines to the instant offense, id. at 632; and (d) applying the second-degree murder guidelines to “this type of crime.” Id. at 632-33.

Comparing the sentencing transcript with Ms. Deegan’s brief establishes that these errors were asserted in the district court and raised on appeal. At sentencing, defense counsel, in responding to the prosecutor’s recommendation for a guideline sentence of 121 months, asserted that: (a) the guideline sentence was far greater than necessary (Sent. Tr. 46-47); (b) such a sentence was not warranted under the § 3553(a) factors (Sent. Tr. 46-52); (c) a guideline sentence would result in a sentencing disparity as compared to a neonaticide sentence imposed in a North Dakota state court (Sent. Tr. 50-53); and (d) a variance, a non-guideline sentence, should be imposed after proper consideration of the § 3553(a) factors (Sent. Tr. 55-56, 59). The district court clearly recognized the request of defense counsel when the court said, “The request in this case is for the imposition of a variance or a nonguideline sentence to be imposed in accordance with 18 USC Section 3553(a).” Sent. Tr. 56 (emphasis added).

The contentions raised on appeal, see Appellant’s Brief at 19-24, that the sentence was “unreasonable,” “greater than necessary,” and that a guideline sentence should not apply to Ms. Deegan, were the same arguments raised before the district court.

Defense counsel should not need to say more to preserve error in a criminal sentence. Ms. Deegan requested a non-guideline sentence and stated reasons in support of that recommendation. When defense counsel asserted that the prosecutor’s recommendation called for a sentence that was flawed and excessive, and requested a lesser sentence, the sentencing issue should be considered fully preserved. See Rita, 551 U.S. at 345 (error raised), 351, 127 S.Ct. 2456 (sentencing procedures discussed); but see United States v. Bain, 586 F.3d 634 (8th Cir.2009).

To state that matters raised by Ms. Deegan should be considered as plain error is incorrect. But in any event, the procedural and substantive mistakes here are great and require reversal under any standard of review-plain error or preserved error.6

*639As will be discussed more fully, the prosecutor mistakenly told the sentencing judge:

The United States believes that the Sentencing Commission took into account these type of events, these type of crimes when it put together sentencing guidelines such as exist in the 1997 edition. Given that fact, Your Honor, we believe that a guideline sentence would effectively meet the requirements of Section 3553, all of those goals of sentencing.

Sent. Tr. 43 (emphasis added). The sentencing judge adopted and echoed that principle in imposing a guideline sentence of ten years and one month (121 months) imprisonment, echoing a resounding “yes” to this incorrect advice as the court said the guidelines are for people like you who “commit this type of crime with the same type of criminal history that you have.” Sent. Tr. 59. And further adding, “I’m required to impose those guidelines.... ” Id. Such statements imply more than a presumption that the guidelines apply to Ms. Deegan and constitute plain error. Thus, there exists plain error in sentencing procedure leading to an excessive, improper, and unfair sentence. See Alvizo-Trujillo, 521 F.3d at 1018.

II.

BACKGROUND

To understand the errors in sentencing, this case requires a full accounting of Ms. Deegan’s life. All of the facts discussed below were before the district court at the sentencing hearing and were not disputed by the government.7

A. Childhood Abuse

Ms. Deegan’s life is marked by a history of extensive and cruel abuse. Her alcoholic father beat her on an almost daily basis and dominated every aspect of life in the Deegan family. Ms. Deegan reported having out-of-body experiences during the beatings, as if she was watching herself being assaulted from outside of her body. Some of the beatings were so severe that her father kept her home from school to avoid repox-ts to Child Protective Services. She and her siblings were eventually removed from her parents’ house due to the abuse, placed in a variety of foster homes, and periodically returned to her parents’ house. While in foster care, Ms. Deegan was separated from her siblings and experienced physical abuse from some of her foster family members. In conversation with Dr. Resnick, Ms. Deegan said, “I think I will be forgiven [by my maker]. I’ve lived my hell throughout my childhood.” Add. 2, p. 12 (Resnick Report).

Ms. Deegan also suffered extensive and cruel sexual abuse. At five years of age, her father’s drinking buddies began sexually abusing her. By age nine, five or six perpetrators had forced her to participate in oral, vaginal, and anal sex. One of the perpetrator's held her head under water several times to make her submissive and threatened her so she would not disclose the abuse.8 At age eleven, the sexual *640abuse ended when Ms. Deegan finally disclosed the abuse to her mother. Her father responded by beating her for being a “slut and allowing it to happen.” Add. 2, p. 5 (Resnick Report).

Ms. Deegan spent much of her childhood caring for and protecting her six younger siblings. Her siblings reported that she frequently suffered physical abuse in their stead. As an adult the abuse continued and Ms. Deegan protected her siblings from her father’s alcoholic, depressive, and abusive states. On one occasion, her father attacked her while she was pregnant with her second child. She jumped through a window to escape. Add. 2, p. 7 (Resnick Report).

B. Abuse from Shannon Hale

At age fifteen, Ms. Deegan began a relationship with Shannon Hale, the son of one of her foster parents. Mr. Hale continued the abuse. On one occasion, after Mr. Hale physically assaulted her, Ms. Deegan was admitted to a psychiatric hospital for thirty days to receive assistance for the domestic violence she had endured. She bore four children fathered by Mr. Hale, including the infant victim in this case.

After Ms. Deegan’s third child was born, she became depressed. At this time in her life, Mr. Hale was physically abusing her two to three times per week, forcing her to have sexual intercourse with him, and refusing to care for their children.9 He was not present at any of the births or to take Ms. Deegan home after the deliveries of the children. Mr. Hale continued abusing Ms. Deegan throughout their relationship, including during her pregnancies. Prenatal care records document that two days before she delivered their third child, Mr. Hale choked her and threw her onto gravel, causing injuries that persisted for several months.10

Despite the abuse, Ms. Deegan did not leave Mr. Hale permanently because he repeatedly assured her that he would reduce his drinking and stop abusing her. Ms. Deegan reported that she sometimes went to live with her parents when the abuse was most severe, but then her father would physically and verbally abuse her. Ms. Deegan also explained that she did not feel that she could leave Mr. Hale because of her relationship with his mother. Ms. Deegan reported that Mr. Hale’s mother “seemed to make things okay,” caused her to feel safe, and encouraged her to stay with Mr. Hale for the children’s sake. Ms. Deegan feared that if she left Mr. Hale, his mother, a prominent member of the Indian community, would acquire custody *641of her children.11

When Ms. Deegan learned she was pregnant with a fourth child (the child victim), she did not believe she was really pregnant. Ms. Deegan reported she had not developed a plan for coping with the birth of a fourth child because she had put the pregnancy out of her mind. She had previously suffered three miscarriages. She reported feeling so depressed that she could barely take care of herself and her three children.

Ms. Deegan’s state of despair and depression was not merely the result of the physical, verbal, and sexual abuse she suffered. Ms. Deegan lived in extreme poverty and isolation. Both Ms. Deegan and Mr. Hale were unemployed. Ms. Deegan sustained herself and her family on food stamps and whatever money she could acquire to provide food for her young children: ages one, two, and five. When Ms. Deegan obtained any money, Mr. Hale took it and bought methamphetamine.

Dr. Resnick explained why Ms. Deegan stayed with Mr. Hale before the homicide of her fourth child:

1) Ms. Deegan was raised in a home in which she saw her father repeatedly beat her mother. This aberrant model of marriage was all she knew.

2) Ms. Deegan feared that if she left Shannon Hale she would lose her relationship with the Hale family.... Irene Hale encouraged her to stay with Shannon so her children would have a father.

3) Ms. Deegan had virtually no financial resources. Shannon Hale used any available money for his alcohol and methamphetamine addiction. Irene Hale at least made sure that Ms. Deegan had groceries so she could feed her daughters, and herself.

4) Based on Ms. Deegan’s foster care experience, she knew that leaving one family situation sometimes resulted in a worse situation rather than an improvement.

5) As is common in men who batter their wives, Shannon Hale told Ms. Deegan that he would not assault her again and promised to control his drinking and use of illegal drugs.

6) Ms. Deegan did not have a viable alternative to staying with Shannon Hale. If she took her daughters to live in her parental home, she and her daughters would be subjected to physical and emotional abuse by her father. No shelter for battered women was available in her area.

7) Ms. Deegan was fearful that if she left Shannon, Irene Hale, who enjoyed an excellent reputation in the community, would take her daughters away from her.... Caring for her three daughters was the most important thing in her life. She feared that if Shannon Hale attempted to raise her three young daughters, they would not be safe because of his methamphetamine addiction and his demonstrated propensity for physical abuse.

*6428) Ms. Deegan feared that if she sought counseling for her marital problems, she might lose her daughters’ custody.

9) On the prior occasions when Ms. Deegan sought help from individuals and institutions, they failed to assist or protect her.

Add. 2, p. 20-21 (Resnick Report).

C. The Birth Circumstances

On October 20, 1998, at twenty-five years of age, alone in her mobile home with her three children, Ms. Deegan went into labor with her fourth child. She endured the labor alone, did not tell anyone she was in labor, and delivered the child herself. She reported not feeling anything physically from the labor and that she had assisted the infant to breathe when he was born. Ms. Deegan cleaned, diapered, and fed her child. She then put clothes on him, placed him in a basket, and left him in the home alone. When asked why she left her child in the home alone, she replied:

I couldn’t take anymore. I couldn’t handle it. I had everything on my shoulders. I couldn’t even help myself. I had nobody to help me. I had no job, no nothing. I had all my babies to care for, a welfare mom. I had the feeling of being worthless. What could I do? I was overwhelmed and depressed. I didn’t want to live through any of it anymore. I didn’t want to be there anymore, as a spouse, as a mother, as a daughter.

Add. 2, p. 11 (Resnick Report).12 Ms. Deegan returned to her home approximately two weeks later. Ms. Deegan put her son’s body in a suitcase and placed the suitcase in a ditch near her home. The body was discovered approximately one year later.

With an understanding of the background of Ms. Deegan and the circumstances surrounding the infant’s death, I turn to a discussion of neonaticide.

III.

NEONATICIDE

Forty-three years ago, psychiatrist Dr. Phillip Resnick became interested in the topic of parents causing the death of their children. He has written nearly 100 articles, several on neonaticide and infanticide, and frequently presents and lectures on this subject. Every year he teaches a course on neonaticide for the American Psychiatric Association. He is considered the foremost neonaticide expert in this country.

As defined by Dr. Resnick:

[Njeonaticide is simply the killing of a newborn infant on the first day of life. It’s actually a term that I coined in an article I wrote in 1969 where I was distinguishing that type of killing of a baby, which has very different characteristics, from the killing of a baby who is older or a child. And so neonaticide has universally been accepted now as a *643particular phenomenon when the baby is killed the first day of life.

Sent. Tr. 16.

Dr. Resnick and other scholars explain the circumstances that lead to this tragic crime. Such a mother is often in an overwhelming state of desperation at the time of her infant’s birth and lacks adequate resources to mentally handle the situation of delivering a child.13 She often conceals and denies her pregnancy, lacks insight into the situation, shows poor judgment, is cognitively immature with limited intelligence, and lacks sufficient coping skills.14 “[The] commonly reported profile [of a homicidal mother] describes a woman usually in her twenties, who grew up or currently lives in poverty, is under-educated, has a history of abuse (both physical and sexual), remains isolated from social supports, has depressive and suicidal tendencies, and is usually experiencing rejection by a male lover at the time of the murders.” 15

“Although the majority of women who commit neonaticide do not have any long-term psychological pathologies, it is likely that often they experience abnormal mental functioning during their pregnancies.” 16 “During a homicidal episode, therefore, a mother may view a child as a mere extension of herself rather than as a separate being. A mother’s suicidal inclinations may often transform into filial homicide. In other words, killing her children may be much like killing herself.”17

In preparing to testify, Dr. Resnick conducted a six-hour interview of Ms. Deegan and reviewed the relevant FBI, medical, psychiatric, and school records. He diagnosed Ms. Deegan with suffering or having suffered from the following three psychiatric disorders:

Major Depressive Disorder, recurrent, severe, without psychotic features at the time of the homicide, now in partial remission.

Posttraumatic Stress Disorder, chronic. This diagnosis is supported by Ms. Deegan’s history of exposure to multiple traumatic events as a child of physical and sexual abuse. At the time she had intense feelings of helplessness, horror, and the fear of dying....

Dysthymic Disorder

This diagnosis is based on the fact that during Ms. Deegan’s childhood she had a depressed mood for most of the day for more days than not for several years. Her depression was manifested by overeating, insomnia, low self esteem, and feelings of hopelessness.

Add. 2, p. 13 (Resnick Report). Dr. Res-nick explained that at the time Ms. Deegan delivered her infant, she was severely depressed, overwhelmed by the state of her life, and “simply did not have the psychological resources to care for a fourth child.” Sent. Tr. 36.

Dr. Resnick further testified that women who commit neonaticide are unable to cope with the pregnancy and endure great pain *644at the expense of keeping the child’s birth a secret:

[Such women] are willing to put themselves through a great deal of anguish. They often will deliver the baby with no anesthesia,- no pain relief, no emotional support. They’ll stifle their screams, and that is how intensely important it is for them not to have their family, who may be in the house, actually know that they’re pregnant and having a baby.

Sent. Tr. 33.

The manner in which Ms. Deegan delivered her child conforms with other women’s acts of neonaticide. Ms. Deegan gave birth to the infant in the shower and kept the birth a secret. She coped with the pain of childbirth by dissociating.18 Dr. Resnick explained that just as Ms. Deegan had endured sexual assaults as a child by having out-of-body experiences, she used dissociation to separate herself from the intense pain of delivering the infant.

Dr. Resnick also addressed Ms. Deegan’s belief that she was not pregnant. Dr. Resnick explained that, as is common in eases of neonaticide, Ms. Deegan neither planned for the killing of the infant or for the caring of the infant. As he succinctly stated, “They just put it out of their minds.” Sent. Tr. 28-29. Dr. Resnick further testified that in Ms. Deegan’s case, it was particularly easy for her to convince herself that she was not pregnant because she had previously miscarried three times and had experienced regular menstrual spotting during her prior pregnancies. Dr. Resnick explained that even though Ms. Deegan may have known she was pregnant, she may have made the assumpT tion that she might miscarry or just did not accept that she was truly pregnant.

Dr. Resnick also testified that the manner in which Ms. Deegan carried out the neonaticide indicated that it was an impulsive act. He explained, unlike one who hides evidence of a crime, Ms. Deegan left her infant in a place where he “might have been discovered and she would be caught.” Sent. Tr. 29.19 Dr. Resnick explained that such conduct is not what one would expect from someone who is planning to take another’s life and seeks to “get away with it.” Sent. Tr. 29. He further explained that despite her psychological inability to cope with raising the child, Ms. Deegan still sought to keep the infant close to her home because of her emotional attachment to him.20 Dr. Resnick reasoned, “had it been other circumstances, [Ms. Deegan] would have cherished the baby.” Sent. Tr. 30.

Finally, Dr. Resnick testified that Ms. Deegan did not have a significant support system from her family and community. She lived in a mobile home in a rural area of North Dakota. She lacked the financial resources to leave her abusive and troubled family life. Ms. Deegan did not have outreach services with which she could have received assistance, nor were there shelters for victims of domestic violence. At the time of her actions, North Dakota did not yet have a Safe Haven Law, whereby parents could bring a child for which they felt unable to provide care.21 Further, individuals and institutions had *645consistently failed Ms. Deegan when she needed help.

It is apparent from Ms. Deegan’s background and the expert testimony in this case that every adverse factor that may play some role in neonaticide was suffered to an advanced degree by Ms. Deegan. As the dissent shows below, the district court made two critical errors in evaluating the record. First, the court thought the guidelines applied to this case. Second, the court recognized this testimony but failed to properly apply this important evidence in imposing its sentence.

IV.

REVIEW OF SENTENCING

A. Inapplicability of second-degree murder guidelines

Ms. Deegan’s crime of neonaticide was a unique sort of homicide and completely unlike the usual and ordinary killings that constitute second-degree murder under federal law. As I have already observed, federal courts do not ordinarily deal with these types of cases, which may be grist for the mills of state courts. Only because this neonaticide occurred on an Indian reservation does this case become one of federal jurisdiction. There exists no basis in the statements of the Sentencing Commission or in reviewing federal appellate second-degree murder cases to conclude that the crime of neonaticide comes within the federal second-degree murder sentencing guidelines.

First, consider the Sentencing Reform Act of 1984 and the goals of the United States Sentencing Commission. It is axiomatic that the Sentencing Reform Act, through the imposition of mandatory guidelines, worked a sea-change in federal sentencing. But even then, Congress recognized that the goals of certainty and uniformity must in some instances yield to unique circumstances:

These provisions introduce a totally new and comprehensive sentencing system that is based upon a coherent philosophy. They rely upon detailed guidelines for sentencing similarly situated offenders in order to provide for a greater certainty and uniformity in sentencing.

S.Rep. No. 98-225, at 38, reprinted in 1984 U.S.C.C.A.N. 3182, 3221 (emphasis added). Likewise, the Sentencing Commission instructs that:

The sentencing court must select a sentence from within the guideline range. If, however, a particular case presents atypical features, the Act allows the court to depart from the guidelines and sentence outside the prescribed range.

U.S.S.G. ch.l, pt. A, intro cmt. n. 2 (1997) (emphasis added). Thus both Congress and the Commission contemplated that not every crime would fall within the ambit of the guidelines.

The presentence report is lamentable in this regard. Despite the seemingly obvious fact that neonaticide is an unusual crime in federal court, the presentence report makes no mention that this is an “atypical” case. Even more distressing, the presentence report fails to indicate much in the way of the abusive circumstances Ms. Deegan faced during her childhood and at the time she gave birth to the infant victim. These circumstances, detailed so graphically in this dissent, were simply not a part of the presentence report, which asserted that no factors warranted departure from the guidelines.

Far worse than the omissions from the presentence report were the prosecutor’s statements at sentencing, which lack any basis in fact or law, about the applicability of the guidelines to Ms. Deegan’s conduct. At sentencing, Ms. Deegan’s counsel re*646quested a non-guideline sentence. But the prosecutor mistakenly informed the district court that the Sentencing Commission took this type of crime into consideration in adopting the guidelines for second-degree murder:

MR. HOCHHALTER: Yes, Your Honor. Your Honor, the United States Sentencing Commission was in existence back as early as the late eighties and certainly at the time of this event, and certainly at the time of events across the country where, as Dr. Resnick has pointed out, this has been occurring for many years. The United States believes that the Sentencing Commission took into account these type of events, these type of crimes when it put together sentencing guidelines such as exist in the 1997 edition. Given that fact, Your Honor, we believe that a guideline sentence would effectively meet the requirements of Section 3553, all of those goals of sentencing.

Sent. Tr. 42-43 (emphasis added). After this statement, defense counsel again urged, to no avail, that a guideline sentence was far greater than necessary.

Despite defense counsel’s request, the district court determined — entirely without precedent — that the guidelines apply to “this type” of crime and that it believed application of the guidelines was “reasonable.” The court stated:

Well, I have carefully reviewed the presentence report, and I adopt the factual findings and the sentencing guideline calculations spelled out in that presentence report that establish that this offense carries a total adjusted offense level of 32, a criminal history category of 1.

We have sentencing guidelines in the federal system that are designed to ensure that sentences are consistent and uniform throughout the country for people that commit this type of crime with the same type of criminal history that you have. The sentencing guidelines have been in effect for almost 20 years, and they are designed to provide some honesty in sentencing and to achieve some consistency in the federal system, and they’re based upon an analysis of hundreds of thousands of cases. Every year there are hundreds of thousands of cases that — in which defendants are sentenced around the country, and the Sentencing Commission compiles all that data and they try to develop sentencing guidelines that are fair and are reasonable.

In this case the sentencing guidelines provide for a sentence range of 121 to 151 months. That’s 10 to 12-and-a-half years. I’m required to impose those guidelines that were in effect in October of 1998.

Pursuant to the Sentencing Reform Act of 1984, it’s my judgment, Ms. Deegan, that you shall be committed to the custody of the Bureau of Prisons to be imprisoned for a period of 121 months. I am agreeing with the Government’s recommendation in this case and adhering to the guidelines because I believe that they are reasonable.

Sent. Tr. 55, 59, 60-61 (emphasis added). Notwithstanding the district court’s belief, no basis exists to place neonaticide within the mine-run guidelines for second-degree murder.

The foundation statements for application of the sentencing guidelines in this case amounted to error of great proportions. Once Dr. Resnick’s report became known, a modicum of research by any of the persons engaged in the sentencing process would have easily disclosed that the guidelines did not contemplate crimes such *647as Ms. Deegan’s.22 An obligation to inform the judge of the applicable sentencing procedures and law rested on the prosecutor.

In the seminal case of Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996),23 the Court explained that the then-mandatory guidelines carve out a “heartland” of typical cases and the Court provided an approach for delineating which cases fall within that heartland. Koon concerned the well-publicized conduct of Los Angeles police clubbing an arrestee, Rodney King, with their police batons. Id. at 86-87, 116 S.Ct. 2035. In Koon, the applicable guidelines called for a sentencing range of 70 to 87 months’ imprisonment for the convicted police officers. Id. at 89, 116 S.Ct. 2035. The district court granted a downward departure for several reasons, which the Ninth Circuit rejected. United States v. Koon, 34 F.3d 1416 (9th Cir.1994). The police officers petitioned for certiorari to the United States Supreme Court. Koon, 518 U.S. at 91, 116 S.Ct. 2035.

In the process of reviewing the sentence, the Court explained the difference between ordinary or typical guideline cases and the “unusual” one:

A district judge now must impose on a defendant a sentence falling within the range of the applicable Guideline, if the case is an ordinary one.

The Commission intends the sentencing courts to treat each guideline as carving out a ‘heartland,’ a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.

The Commission, in turn, says it has formulated each Guideline to apply to a heartland of typical cases. Atypical cases were not “adequately taken into consideration,” and factors that may make a case atypical provide potential bases for departure.

Id. at 92-94, 116 S.Ct. 2035 (internal citations omitted) (emphasis added).

The Supreme Court noted that because of Mr. King’s provocative behavior, the guidelines should not apply. Id. at 105, 116 S.Ct. 2035. The Court quoted the district court’s analysis of heartland cases:

However, the convicted offenses fall under the same Guideline Sections that would apply to a jailor, correctional officer, police officer or other state agent who intentionally used a dangerous weapon to assault an inmate, without legitimate cause to initiate a use of force.

*648The two situations are clearly different. Police officers are always armed with ‘dangerous weapons’ and may legitimately employ those weapons to administer reasonable force. Where an officer’s initial use of force is provoked and lawful, the line between a legal arrest and an unlawful deprivation of civil rights within the aggravated assault Guideline is relatively thin. The stringent aggravated assault Guideline, along with its upward adjustments for use of a deadly weapon and bodily injury, contemplates a range of offenses involving deliberate and unprovoked assaultive conduct. The Guidelines do not adequately account for the differences between such ‘heartland’ offenses and the case at hand.

Id. at 102-03, 116 S.Ct. 2035 (quoting United States v. Koon, 833 F.Supp. 769, 787 (C.D.Cal.1993)).

Applying this rationale, whether Ms. Deegan’s conduct fell outside the heartland and therefore was not contemplated by the sentencing guidelines depends on whether her conduct significantly differed from the norm. “The norm” is certainly not what we have here-an American Indian woman so beset by the serious problems in her life she cannot cope with another child, cannot think with logic, and believes she has no alternative but to run away and abandon her newborn child. Tragic yes, typical no!

Is that just this writer’s assumption? What is in and what is out of the heartland? To determine whether the Commission contemplated neonaticide by a mother in its guidelines for second-degree murder, this writer inquired of the Sentencing Commission. The response from Glenn Schmitt, Director of the Office of Research and Data for the United States Sentencing Commission, is of great interest:24

We reviewed 157,000 federal criminal cases sentenced since June 2006 (the date when our records became stored electronically, which enables us to review them more quickly than when they were stored off-site in paper). We found 605 cases in which the guideline providing for the highest punishment as either murder (2A1.1), 2nd degree murder (2A1.2), voluntary manslaughter (2A1.3), or involuntary manslaughter (2A1.4). Of these, the offender was a woman in 51 cases. We’ve gone back into each of the 51 cases and reviewed them in light of your inquiry.

In only one ease did we find facts that meet the definition of neonaticide. In that case a 26-year-old mother gave birth to a child (her fourth) at home. She cleaned him, diapered[ ] him[,] dressed him, and fed him. She then placed him in a basket and left eh [sic] house with her other three children leaving the baby alone for two weeks. She testified that she knew the baby would die. When she returned and found him dead, she placed him in a suitcase and placed the suitcase in a ditch near her residence on an Indian reservation where it was discovered.

... As you can see from this analysis, cases like this are exceedingly rare in the federal system....

Mr. Schmitt’s letter reflects that the Sentencing Commission was unable to locate another case of neonaticide besides the present case, which it described. Similarly, my research of non-habeas, federal appellate second-degree murder cases from *6491975 to the present discloses only one other clear case of neonaticide, with a drastically lesser sentence than that imposed on Ms. Deegan.25

Further, Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), makes clear that the district court erred in imposing a guideline sentence. In Rita, the Court reaffirmed that the Sentencing Commission intended for the guidelines to apply to the typical case but not to cases outside the “heartland.” See Rita, 551 U.S. at 351, 127 S.Ct. 2456 (“[The judge] may hear arguments by prosecution or defense that the Guidelines sentence should not apply, perhaps because (as the Guidelines themselves foresee) the case at hand falls outside the ‘heartland’ to which the Commission intends individual Guidelines to apply, USSG § 5K2.0[.]”). As the Court further explained, in a run of the mine case, the “Guidelines [ ] seek to embody the § 3553(a) considerations, both in principle and in practice.” Id. at 350, 127 S.Ct. 2456. Therefore, “[a]n individual judge who imposes a sentence within the range recommended by the Guidelines thus makes a decision that is fully consistent with the Commission’s judgment in general.” Id.

Rita establishes that no neonaticide case was considered in developing the guidelines. The Court in