10th Circuit OKs 70-Day Sentence for Kidnapping

DENVER (CN) — In a 2-1 ruling, a 10th Circuit Court panel affirmed a sentence of 70 days in prison and five years supervised release for a man who kidnapped his ex-girlfriend and drove her across state lines to try to persuade her to marry him.

Joseph Andrew DeRusse pleaded guilty to kidnapping his 24-year-old ex-girlfriend in January 2015, brandishing a BB gun painted to look like a semiautomatic pistol and driving her, blindfolded and handcufffed, from Austin, Texas to rural Kansas.

DeRusse was arrested in Newton, Kansas when a police officer questioned him and his ex, identified in court documents as H.M.M., and the victim told the officer she had been kidnapped.

DeRusse faced up to life in prison for the charges, but in November 2015 U.S. District Judge Thomas Marten of Kansas sentenced him to five years of supervision and 70 days jail.

Marten noted during the sentencing hearing that the sentencing guidelines for the kidnapping’s Total Offense Level of 31 for a first-time offender range from 108 months to 135 months. But the judge said that because DeRusse showed signs of mental illness which were being treated with medication, and because he doubted that DeRusse would reoffend, he found the sentence of time served plus supervised release was “sufficient to take into account all of the difficult factors in this case.” Those factors, Marten said, included “virtually a perfect storm of personalities,” and that DeRusse was “an immature fellow,” and that the victim was also “extremely immature.”

The U.S. Attorney’s Office appealed the sentence, and in November 2016 Assistant U.S. Attorney Carrie Capwell told the 10th Circuit that the sentence was “manifestly unreasonable” considering the trauma the young woman had been through and the mental anguish she still suffered. She said that Judge Marten “blamed the victim’s immaturity for her extreme psychological harm.”

But U.S. Circuit Judge Monroe McKay ruled for the panel that that under the deferential abuse-of-discretion standard, the sentence could not be considered “arbitrary, capricious, whimsical, or manifestly unreasonable.” Chief U.S. Circuit Judge Timothy Tymkovich joined McKay in the majority. Senior U.S. Circuit Judge Bobby Baldock dissented.

The majority found that the sentence did not fall “outside the range of rationally permissible choices available at sentencing. While this court might not have reached the same sentencing decision in the first instance, we are not persuaded that the sentencing court abused its substantial discretion when it chose the sentence it imposed in this unusual case.”

Baldock disagreed, forcefully, calling the 70-day sentence “ludicrous.”

“Given that defendant (1) lured this young woman to an apartment building, (2) laid in wait for her to arrive, (3) pointed what she believed was a deadly gun at her, (4) forced her back into her car, (5) handcuffed her, (6) covered her eyes with a sleeping mask and put a neck pillow behind her head to make her appear as if she was sleeping, (7) drove across state lines to Kansas where he planned to imprison his victim at a bed-and-breakfast for three weeks, (8) blamed her during their eight-hour car ride for making him engage in these actions, and (9) at one point forced her to kiss him, a sentence of time served — a mere 70 days — is in my view manifestly unreasonable,” Baldock wrote.

He added: “And although, as the majority recognizes, the district court indicated it had sincerely considered the seriousness of the offense and the effect it had on the victim, a time-served sentence does not reasonably reflect these concerns even after factoring in the large amount of deference we owe the district court. No matter how out of character it was for defendant to kidnap an ex-girlfriend (wouldn’t this be out of character for the vast majority of people?) and no matter how significant a role defendant’s mental illness played in him choosing to kidnap an ex-girlfriend (a mental illness that no one contends was so debilitating that it negated defendant’s intent to commit this crime), a kidnapping is still a kidnapping. Seventy days in jail for that crime is ludicrous.”

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