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In upholding a light prison sentence for a woman who planned and attempted her husband’s murder, the 9th U.S. Circuit Court of Appeals on Monday gave new discretion to judges handing out sentences under federal guidelines. The 9-2 en banc decision affirms a controversial ruling by a Washington-based federal judge who granted a 21-level departure — from a minimum of more than seven years to one day — after Brenda Working pleaded guilty to shooting her husband several times while divorce proceedings between the two were pending. U.S. District Judge Jack Tanner ruled Working’s crime “aberrant” despite admissions of premeditation. She had purchased a gun one week prior to the 1997 shooting, removed her husband from an insurance policy, and created a ruse to lure him to a remote area of a military base. The decision should give federal judges, who increasingly find their sentencing dictated by federal law, some flexibility in reducing sentences if they feel there are circumstances surrounding a defendant that warrant a break from the otherwise harsh penalties of sentencing guidelines. A three-judge appeals panel deferred to the discretion of the trial judge and upheld Tanner’s sentence last year, but the Department of Justice took the rare step of appealing a panel decision, which was confirmed Monday. Although the court hinted that other judges may have sentenced Working differently, it gave Tanner wide latitude and turned back an argument by the Department of Justice that the crime’s lack of spontaneity meant it could not be aberrant. “While our past decisions may have ‘to some extent relied on the concept of “singularity or spontaneity’ ” in making the aberrant behavior determination, … we have never held that any single factor was dispositive,” Judge Barry Silverman wrote for the majority. “ In fact, our case law is consistent in its recognition that the totality of the circumstances are to be reviewed when making findings of aberrancy.” The case was remanded to Tanner for him to explicitly state why he granted the 21-level departure, but it cited the U.S. Supreme Court’s 1996 decision, Koon v. United States, 518 U.S. 81, in saying he certainly had the right to do it. Then the panel hinted that the case may return to the 9th Circuit. “To review the district court’s decision with the deference it deserves, we need to know the reasoning behind the degree of departure,” Silverman wrote. “We cannot speculate. Therefore, we must remand the case to the district court for resentencing and for an explanation of the reasons for the degree of departure it allows.” Working and her husband had a rocky marriage. When he filed for divorce, Michael Working accused Brenda of sexual misconduct with her stepson and asked for custody of the couple’s two daughters. Brenda had sought a restraining order against Michael in state court, which was denied. About that time, she purchased a .38 caliber handgun from the Top Kick pawn shop in Tacoma, Wash. and removed Michael from her company health insurance policy. On the day the mandatory seven-day waiting period for the gun purchase expired and one week before a proceeding in the divorce case, Brenda called Michael and told him she had broken down in a remote area of Fort Lewis, Wash., and asked Michael to come pick up their two daughters. When Michael arrived she shot him three times. Michael fled into the woods and was shot again in the chest. After a struggle, he hid while Brenda spent two hours searching for him in the dark. Assuming he was dead, Brenda went home and filed a false domestic violence report. In court, several of Brenda’s friends and family expressed shock at her actions, including her two stepsons — who also gave statements that their father had been emotionally abusive. A psychologist testified that Brenda was depressed and in a “disassociative state” at the time of the shooting. Tanner ruled that the crime fell out of the “heartland” of attempted murder cases. He gave her a mandatory five-year sentence for using a firearm in the commission of a crime and sentenced her to one day for the attempted murder. Working is expected to be released next year. Judges Kim Wardlaw and Andrew Kleinfeld — the only conservative on the 11-judge panel — dissented. Wardlaw pointed out that nine circuits have found premeditation generally precludes a finding of aberrant behavior. “Courts have limited aberrant behavior departures to cases involving spontaneous or nonviolent acts. Indeed, no case — from this or any other circuit — has approved an aberrant behavior departure in a case involving both planning and extreme violence,” Wardlaw wrote. In fact, Wardlaw went so far as to suggest that Brenda Working got off easy because she was a woman. “Having reviewed the entire record, I have reluctantly come to the conclusion that the district court would not have departed for aberrant conduct if it had been Michael who attempted to kill Brenda in the brutal and premeditated manner of her attack upon him,” she wrote. The Department of Justice did not return a phone call for comment, but it did take the rare step of lobbying for the three-judge panel to be overturned. “The panel’s use of the ‘aberrant behavior’ concept … distorts the [sentencing] guidelines system and injures the most elemental principle of sentencing: that serious crime should be punished seriously,” wrote DOJ staff attorney Karin Hoppmann in court briefs. “To say that a planned attempt to murder is ‘aberrant behavior’ is to stretch the concept beyond any logical purpose and to render it virtually meaningless as a guide for assessing the factual basis for a downward departure.” But defense attorney Wayne Fricke, of Tacoma, Wash., said the court reached a just decision, given the depression and emotional abuse Brenda had suffered. “I think it’s the correct decision,” Fricke said. “It reaffirms the district court’s discretion.”

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