text:
No. 92,780
1. Lack of sentencing equity among codefendants is not a mitigating factor listed in K.S.A. 2004 Supp. 21-4716(c)(1) and is, therefore, subject to greater scrutiny.
2. To the extent sexual activity is encouraged by an underage victim, the legislature has provided for mitigation in K.S.A. 2004 Supp. 21-4716(c)(1)(A). Likewise, the legislature and the courts have considered the relative immaturity of an offender in providing for mitigation in K.S.A. 2004 Supp. 21-4716(c)(1)(C). Any other reliance upon the relative ages of a victim and a defendant is improper and does not form a substantial and compelling basis to depart from a presumptive sentence.
3. While a particular defendant's amenability to rehabilitation is not necessarily a reason to depart from the presumptive guidelines sentence, a sentencing court may properly consider such evidence in the totality of the circumstances in determining the appropriate penalty to be imposed for a particular offense.
4. Whether the extent of a sentencing court's durational departure is consistent with the enacted purposes and principles of the sentencing guidelines and is proportionate to the severity of the crime of conviction and the offender's criminal history, is judged under an abuse of discretion standard of review.
5. An abuse of discretion standard of review is highly deferential to the sentencing court. In order to justify a reversal, the appellate court must be prepared to declare that the sentencing court's departure sentence was so arbitrary, fanciful, or unreasonable that no reasonable person in the position of the sentencing court would have reached a similar decision.
Appeal from Douglas District Court; PAULA B. MARTIN, judge. Opinion filed August 5, 2005. Sentence vacated and case remanded.
Brenda J. Clary and Angelyn L. Miller, assistant district attorneys, and Phill Kline, attorney general, for appellant.
Michael R. Clarke, of Law Offices of Michael R. Clarke, Chartered, of Lawrence, for appellee.
Before RULON, C.J., HILL and CAPLINGER, JJ.
RULON, C.J.: The State of Kansas appeals the imposition of a substantial downward durational and dispositional departure sentence imposed upon defendant Brian K. Ussery for his conviction for rape. We reverse and remand for further proceedings.
The defendant was charged with statutory rape of a 13-year-old girl, S.S., in violation of K.S.A. 2004 Supp. 21-3502(a)(2). The State, for some unknown reason, has failed to include a transcript of the trial within the record on appeal. Consequently, the underlying facts of the offense are rather vague. We are at a loss to understand what prompted the State not to furnish this court with a trial transcript.
On June 14, 2003, the victim was in the company of four young men, one of whom was the defendant. Prior to the rape of the victim, the victim became so intoxicated that the young men believed she might have alcohol poisoning and began to drive her to the hospital. We understand, however, that the decision was made not to admit the victim into the hospital, and the group returned to the apartment of a codefendant, D.J., a 17-year-old. The victim was so intoxicated that another codefendant, William N. Haney, carried the victim up the stairs to D.J.'s apartment.
Inside the apartment, Haney took off the victim's clothes. The four young men requested to have sex with the 13-year-old victim. As we understand the facts, the victim stated she did not specifically agree to have sex, but she requested the young men use a condom if they were going to have sex with her. In an interview with the police, Haney reported the victim agreed to have sex with all four young men, provided each wore a condom. This defendant's account to police differed somewhat because he claimed the victim encouraged the young men to have sex with her but insisted each wear a condom.
Each of the four men in the group engaged in sexual intercourse with the 13-year-old victim. D.J. had sex with the 13-year-old victim twice.
The codefendants were prosecuted separately. D.J. was offered a plea bargain and was tried as a juvenile. Haney and Ussery were tried as adults. A jury convicted Ussery of statutory rape, and he eventually filed a motion for a downward durational and dispositional departure sentence. Ussery contended a departure was warranted essentially based upon the following factors: (1) the victim was a willing participant in the conduct for which Ussery was convicted; and (2) the degree of harm or loss attributed to the offense was less significant than the typical offense of this nature.
After a hearing, the sentencing court granted Ussery's departure motion, ordering him to serve a 60-month probation with an underlying sentence of 30 months. The presumptive guidelines sentence was 147 to 165 months. The reasons for the departure cited by the sentencing court involved (a) the relative sentences of the codefendants in relation to each defendant's relative culpability; (b) the degree of harm associated with this particular crime; (c) the willing participation of the victim in the criminal conduct; and (d) Ussery's receptiveness to rehabilitation.
The Departure Sentence
Under K.S.A. 21-4721(a), the State appeals the sentencing court's dispositional and durational downward sentencing departure.
When enacting the Kansas Sentencing Guidelines Act (KSGA), the legislature determined the presumptive sentence, indicated by the guidelines grid, based upon the severity level of the crime of conviction and the criminal history score of the offender. This sentence should be imposed by the sentencing court unless the sentencing court finds substantial and compelling reasons to depart. K.S.A. 2004 Supp. 21-4716(a); see State v. Murphy, 270 Kan. 804, 806, 19 P.3d 80 (2001).
When reviewing a sentencing departure, an appellate court must address two questions. First, are the sentencing court's articulated reasons for departing from the presumptive sentence supported by substantial competent evidence? Second, is each stated reason for a departure substantial and compelling as a matter of law? See Murphy, 270 Kan. at 806. In reviewing a sentencing departure, this court considers only those factors articulated by the district court at sentencing. See K.S.A. 2004 Supp. 21-4716(a); State v. Hawes, 22 Kan. App. 2d 837, 839, 923 P.2d 1064 (1996) (citing State v. Gideon, 257 Kan. 591, Syl. ¶ 21, 894 P.2d 850 [1995]). Each factor cited by the district court does not need to provide a substantial and compelling basis to depart so long as one or more constitutes such a basis for departure. See State v. Minor, 268 Kan. 292, 311, 997 P.2d 648 (2000).
Although Ussery claims the sentencing court relied upon at least 11 factors to support a downward departure in this case, in some instances the defendant confuses departure factors with the evidence used to support such factors. Many of the defendant's so-called departure factors involve factual allegations which essentially support a single departure factor.
(a) comparison of codefendants
In sentencing Ussery, the court referred to the sentence imposed upon codefendant William N. Haney, whose sentence, in turn, was based upon the sentence imposed upon D.J., a juvenile codefendant. The sentencing court placed considerable weight upon the apparent disparity between the sole juvenile codefendant's sentence, and the presumptive sentence for Ussery's conviction, in light of each codefendant's relative culpability. The court noted the juvenile codefendant was nearly 18 years old and the primary instigator of the events culminating in sexual intercourse with the 13-year-old victim by each of the young men. The juvenile codefendant had provided the alcohol to the victim and had engaged in two separate acts of sexual intercourse with the victim. Yet, while the 18-year-old codefendants were tried as adults, the juvenile codefendant was offered a plea agreement in which the State dismissed one rape charge and a charge of furnishing alcohol to a minor. The State tried D.J. as a juvenile, and the juvenile court imposed a sentence of 30 months in a juvenile detention facility.
Relying upon State v. Bailey, 251 Kan. 527, 834 P.2d 1353 (1992); State v. Goering, 225 Kan. 755, 594 P.2d 194 (1979); and Cochrane v. State, 4 Kan. App. 2d 721, 610 P.2d 649 (1980), the sentencing court reasoned that the relative culpability of the codefendants and the juvenile codefendant's lesser sentence provided a substantial and compelling basis to depart from the presumptive sentence when sentencing Ussery.
In attempting to review the sentencing court's factual findings for substantial competent evidence, this court is severely hampered by the woefully inadequate record on appeal. While there is nothing within this record to support the sentencing court's findings, neither is there contrary evidence. The sentencing court specifically stated that it had considered the trial evidence and statements made during the sentencing hearing, along with the pleadings, motions, and letters filed in the case, before ruling on Ussery's departure motion. Because the State is now complaining of the sentencing court's action, the State bears the burden of providing this court with a record sufficient to establish reversible error. The State may not fail to include a substantial portion of the record and then claim the sentencing court's findings are unsupported. Without an adequate record, this court must presume the sentencing court's findings are properly supported. See Supreme Court Rule 3.03(a) (2004 Kan. Ct. R. Annot. 22); State v. Lumley, 25 Kan. App. 2d 366, 371, 963 P.2d 1238 (1998), aff'd 267 Kan. 4, 977 P.2d 914 (1999).
Presuming substantial competent evidence to support the district court's findings, though, does not foreclose this court's review of a sentencing departure. This court possesses unlimited review of a sentencing court's reliance upon any given departure factor as a legally sufficient reason to depart from the presumptive sentence. See State v. Favela, 259 Kan. 215, 232-33, 911 P.2d 792 (1996). In addressing this question, we note that nonstatutory departure factors are subject to greater scrutiny than those factors enumerated within K.S.A. 2004 Supp. 21-4716(c)(1). See Murphy, 270 Kan. at 807.
The sentencing court perceived Ussery's conduct to be less culpable than the conduct of the juvenile codefendant and, therefore, found Ussery should not receive a sentence greater than the sentence imposed on the juvenile codefendant. (The sentencing court presumably reasoned the juvenile codefendant possessed greater culpability because D.J. brought the victim to his apartment, plied her with alcohol, and engaged in sexual intercourse on two separate occasions.)
Although K.S.A. 2004 Supp. 21-4716(c)(1)(B) permits a sentencing court to consider an offender's lesser or passive role in the crime, we are convinced there is nothing passive about Ussery's criminal conduct. Ussery knew the victim was 13 years old; he knew the victim was intoxicated to the extent of potentially needing medical assistance; yet Ussery took advantage of the opportunity for his own sexual gratification. No one compelled Ussery to engage in sex with an intoxicated 13-year-old minor. That unfortunate decision, and therefore the responsibility, belonged entirely to each individual codefendant who engaged in sexual intercourse with the victim. The juvenile codefendant is not culpable for the conduct for which Ussery was charged and convicted.
Arguably, the only apparent motivating influence supporting the sentencing court's comparison of the codefendants here is the disparity between the sanction imposed on the juvenile codefendant and the presumptive sanction for each of the adult codefendants, who were admittedly no more culpable than the juvenile codefendant. The State's flimsy response to the sentencing court's reliance upon this disparity is a declaration that the prosecutors who handled each of the cases communicated with one another to ensure relative equality among the codefendants. This weak statement does nothing to cast doubt upon the sentencing court's reasoning. Not only is this declaration not tied to any support within the record but, even if the assertion is accepted as true, it does not explain the obvious disparity in presumptive sentences and does not answer the pertinent question on appeal, which is whether such a sentencing disparity can form a substantial and compelling reason to depart from a presumptive sentence.
Lack of equity in sentencing among codefendants is not a mitigating factor listed in K.S.A. 2004 Supp. 21-4716(c)(1) and is, therefore, subject to greater scrutiny. See Murphy, 270 Kan. at 807. In Bailey, our Supreme Court held:
"[T]he trial judge is not bound to sentence the defendant in [a] case to the same or a lesser sentence than that given his [or her] codefendant. The trial court, however, must consider the sentence given the codefendant and, if a longer sentence is given, the reason for doing so should be set forth on the record." 251 Kan. at 531.
While this statement may provide some meager support to the sentencing court's reasoning, Bailey is distinguishable from the present case on at least two material points. First, Bailey involved indeterminate sentencing before the enactment of the KSGA. Second, the defendants in Bailey were both adults. Here, the sentencing court attempted to reconcile the sentence imposed upon a juvenile with that imposed upon an adult.
One of the motivating considerations for the enactment of the KSGA was to impose similar sanctions upon similarly situated defendants. This objective was implemented by imposing presumptive guidelines sentences based upon a criminal defendant's criminal history score and the severity level of the crime committed. The legislature further provided that a sentencing court could deviate from the presumptive sentence only after noting substantial and compelling characteristics of the crime or the condition of the defendant which removed the offense from the normal crime of its type. See K.S.A. 2004 Supp. 21-4716(a). Because the legislature has taken into consideration equity in sentencing among similarly situated defendants in the guidelines sentences, the persuasiveness of the pre-guidelines cases cited by the sentencing court is diminished severely.
The relevance of the cases cited by the sentencing court is diminished further by reason of the status of the codefendants involved in this case. The legislature has denominated a legal distinction between this defendant and D.J., the juvenile offender. Because of his age, D.J. is legally classified as a juvenile, while Ussery has passed his 18th birthday and is legally classified as an adult. In State v. Green, 218 Kan. 438, 442, 544 P.2d 356 (1975), our Supreme Court upheld a juvenile classification based on age against constitutional attack on the basis of equal protection.
"No valid challenge can be made because the Kansas Legislature could, in the exercise of its wisdom, withhold the protection of the doctrine of parens patriae from all juveniles exceeding fifteen years of age. What the legislature may do absolutely it may do conditionally, providing the conditions prescribed are applicable in like manner to every child in the class affected." 218 Kan. at 442.
More recently, the United States Supreme Court tacitly approved the seemingly arbitrary line drawn between juveniles and adults at age 18 in holding that the application of capital punishment to juveniles (defined by the age of 18) violated the constitutional prohibition against cruel and unusual punishment. The Roper Court noted the cultural acceptance of 18-year-olds as adults and recognized that scientific and sociological studies have demonstrated a marked difference, generally, in the maturity, sense of responsibility, susceptibility to negative influences or social pressures, and lack of independent character between people under the age of 18 and those who are 18 years of age or older. See Roper v. Simmons, 543 U.S. ___, ___, 161 L. Ed. 2d 1, 21-22, 125 S. Ct. 1183 (2005).
The delineation between juveniles and adults for purposes of prosecution and punishment is a public policy determination reserved to the legislative branch of government, except where constitutional principles apply. The Kansas Legislature has deemed it proper to hold persons under the age of 18 less accountable for their criminal conduct than those who have attained the age of 18. Consequently, the legislature has prescribed lesser penalties for those who commit serious offenses as juveniles. While the legislature has provided the means to treat specified juvenile offenders as adults for purposes of prosecution and punishment, the legislature has not similarly chosen to provide for treatment of certain adults as juveniles. See K.S.A. 38-1636. Because the legislature has not deemed appropriate the consideration of adults as juveniles for purposes of prosecution and sentencing, the sentencing court's attempt to circumvent the legislature's policy decisions by so regarding the adult codefendants' offenses is inappropriate. See State v. Heath, 21 Kan. App. 2d 410, 418, 901 P.2d 29 (1995) (holding that disagreement with the classification of a crime by the legislature is not a substantial and compelling reason to depart from the presumptive sentence).
However, in Roper, the United States Supreme Court did recognize that "[t]he qualities that distinguish juveniles from adults do not disappear when an individual turns 18." 543 U.S. at ___. The Kansas Legislature has likewise recognized that some adult defendants do not possess a normal capacity to reason, which should be considered as mitigation in sentencing, even though such diminished capacity does not provide a defense to the crime of conviction. See K.S.A. 2004 Supp. 21-4716(c)(1)(C). Similarly, our Supreme Court has expanded the scope of this mitigating factor to include a criminal defendant's immaturity and impaired judgment due to age. See Favela, 259 Kan. at 237-38. Consequently, to the extent this sentencing court relied upon this defendant's relative age, immaturity, or impaired judgment to justify a departure, the court's reasoning could have provided a substantial and compelling reason to depart from the presumptive guidelines sentence.
The problem here, however, is that any proper consideration of Ussery's age, immaturity, or impaired judgment was inextricably involved with the impermissible consideration of the juvenile codefendant's sentence. The sentencing court should have considered Ussery's diminished capacities, if any, only to the extent of his relative age, immaturity, and impaired judgment as distinguished from the average adult offender.
In this case, the sentencing court arguably assumed immaturity and impaired judgment solely on the basis of Ussery's relative age to the juvenile codefendant. Such is not the individualized consideration required by the KSGA. The sentencing court did not properly compare this defendant's age, immaturity, and ability to exercise sound judgment with the attributes of an average adult. Consequently, the sentencing court erred in basing a downward departure on this reasoning.
(b) degree of harm or loss
The sentencing court further based Ussery's downward departure sentence on a finding that the degree of harm or loss to the 13-year-old victim as a result of the sexual intercourse with Ussery was less than statutory rape typically causes. In particular, the court noted the relative ages of the victim and Ussery, and the absence of physical force or harm in the perpetration of the act.
While the age of a criminal defendant may be considered in relation to his or her ability to make good judgments, see Murphy, 270 Kan. at 807; Favela, 259 Kan. at 235, there are no Kansas cases holding the relative age of a child victim may be a mitigating factor. To the extent that a young adult exercises poor judgment due to his or her young age and lack of experience, an even younger victim cannot be expected to exercise greater judgment. Indeed, with respect to children under the age of 14, society presumes the child cannot exercise any judgment regarding consent to sexual activity. The legislature has consistently promulgated this public policy throughout the criminal statutes proscribing sex offenses. See K.S.A. 2004 Supp. 21-3502(a)(2) (rape); K.S.A. 21-3504(a)(1) (aggravated indecent liberties with a child); K.S.A. 21-3506(a)(1) and (a)(2) (aggravated criminal sodomy); K.S.A. 21-3511 (aggravated indecent solicitation of a child); K.S.A. 2004 Supp. 21-3522 (unlawful voluntary sexual relations).
In relying upon the relative ages of the victim and Ussery, the sentencing court suggests the harm to the victim is not as great because there is less disparity in age. This reasoning is totally flawed. A 13-year-old victim is no more capable of consenting, legally, to sexual activity with an 18-year-old than with a person who is 25 or 40. Furthermore, the trauma to the underage victim is potentially as great.
To the extent sexual activity is encouraged by an underage victim, the legislature has provided for mitigation. See K.S.A. 2004 Supp. 21-4716(c)(1)(A). Likewise, the legislature and the courts have considered the relative immaturity of an offender in providing for mitigation. See K.S.A. 2004 Supp. 21-4716(c)(1)(C); Favela, 259 Kan. at 237-38. Any other reliance upon the relative ages of a victim and a defendant is improper and does not form a substantial and compelling basis to depart from a presumptive sentence.
As support for this mitigating factor, the sentencing court was substantially influenced by the sanction imposed for unlawful voluntary sexual relations, K.S.A. 2004 Supp. 21-3522(a)(1). The commission of that offense, defined as voluntary sexual intercourse between a boy or girl who is between 14 and 16 years of age and a member of the opposite sex who is under the age of 19 and less than 4 years older than the victim, is a severity level 8 felony. The sentencing court reasoned that if the victim in this case had been 9 months older, Ussery would only be facing a presumptive sentence of 7-9 months.
Under the district court's reasoning, if the victim had been 9 months older, she could have legally consented to the sexual intercourse, and the defendants could not have been convicted of rape. See K.S.A. 2004 Supp. 21-3522(a)(1). Using the same reasoning, the defendants would have been guilty of aggravated indecent liberties with a child, a severity level 3 felony. See K.S.A. 21-3504(a)(1). Ussery was 11 days from his 19th birthday on the date of the offense. If he were 9 months older, he would be well over 19 years of age and could not qualify for the protection of K.S.A. 2004 Supp. 21-3522(a)(1). Moreover, the difference in age between Ussery and the victim is more than 4 years, which would further disqualify him from the protection of K.S.A. 2004 Supp. 21-3522(a)(1).
As a result, the district court's finding that the harm or loss occasioned by the rape in this case was less significant than a typical rape of its kind because of the relative ages of the victim and this defendant was improper. Such a comparison cannot form a substantial and compelling reason to depart from the presumptive sentence imposed for statutory rape.
Similarly, the lack of evidence of physical force or trauma in the commission of the rape does not support a finding the harm or loss in this case was less significant than typically occasioned by this offense. Even in rape cases in which consent is an issue, the victim does not need to demonstrate physical harm or force to demonstrate an absence of consent. In any rape case, the emotional and psychological trauma to the victim justifies a severe penalty.
The sentencing court made no finding about the emotional and psychological trauma to the victim caused by Ussery's actions. Instead, the sentencing court found that statutory rape may encompass a wide range of trauma and harm. In Minor, the State appealed a downward sentencing departure in which the sentencing court had relied, in part, upon the supposed lack of harm or loss to the victim of aggravated criminal sodomy as a mitigating factor. Our Supreme Court held it was improper to depart from a presumptive sentence on this basis when the record was silent about what harm constitutes the typical harm or loss for this particular type of offense and there was no showing how the facts in the case made the harm less significant than in the normal case. 268 Kan. at 312.
The reasoning in Minor controls this case as well. There is nothing within the record, other than the sentencing court's conclusory comments, to indicate the harm suffered by this particular victim was less significant than the harm normally associated with statutory rape. As in Minor, we disapprove the sentencing court's use of this departure factor.
(c) participation of the victim
The sentencing court further relied upon the victim's role in the events leading up to the statutory rape as support for the departure from the presumptive sentence. Specifically, the sentencing court noted the victim was an experienced drinker (despite her age); the alcohol had not been furnished by this defendant; there were no threats, force, or weapons involved in Ussery's conduct; and the victim requested Ussery wear a condom before engaging in sex with her. The sentencing court found further evidence at trial proved the victim's complicity in sex with Ussery, without further elucidation. Without a copy of the trial transcript in this record on appeal, this court cannot review the evidence supporting the district court's determination. Furthermore, in State v. Rush, 24 Kan. App. 2d 113, 942 P.2d 55, rev. denied 262 Kan. 968 (1997), this court held that a victim's active participation in sexual conduct is not a defense to statutory rape.
Nevertheless, in Rush the sentencing court was presented with the victim's statement that the challenged incident was the victim's fault because she desired a relationship with the defendant and initiated the sexual intercourse for which the defendant was convicted of statutory rape. 24 Kan. App. 2d at 113-14. Relying upon an Idaho case, this court concluded the aggressive conduct of a victim leading to sexual intercourse is a substantial and compelling reason to depart from a presumptive sentence for statutory rape. 24 Kan. App. 2d at 116.
This case is distinguished from Rush. Here, there is no evidence before this court the victim admitted she solicited the sexual contact with this defendant. The only evidence presented in this appeal indicates the contrary. Furthermore, the sentencing court's reliance upon some facts does not logically support a finding the victim was a voluntary participant in this crime. The victim's experience or inexperience with alcohol is irrelevant to determining her voluntary participation in sexual activity when the record indicates she was clearly intoxicated at the time of, or shortly before, the offense. Likewise, the fact Ussery did not furnish the alcohol consumed by the 13-year-old victim does not logically prove he did not take advantage of the victim in her intoxicated condition. The fact there is no evidence of threats, force, or weapons in the commission of the crime is relevant, but the relevance is obscured in light of the victim's totally intoxicated condition.
In Minor, several witnesses at trial presented conflicting testimony concerning the voluntariness of the victim's participation in the aggravated criminal sodomy at issue there. While the victim in Minor testified she was an unwilling participant, other testimony indicated the victim initiated the sexual activity. Our Supreme Court specifically approved the sentencing court's resolution of this conflicting testimony at sentencing when the court found the victim had willingly initiated the sexual contact. Because victim participation is a mitigating departure factor listed in K.S.A. 2004 Supp. 21-4716(c)(1)(A), the Minor court concluded the sentencing court properly imposed a departure. 268 Kan. at 311.
Nevertheless, the record, as thin as it is, contains evidence supporting conflicting interpretations of the victim's participation in the sexual activity for which Ussery was convicted of statutory rape. According to the sentencing transcript, alone, there was evidence the victim was heavily intoxicated. But, there was evidence the victim was cognizant enough of Ussery's intentions to request his use of a condom. In the absence of any threats or force used in the commission of the offense, such evidence arguably demonstrates the victim's willingness to engage in sexual intercourse with Ussery.
Without the possibility of reviewing the trial testimony here, this court cannot conclude the sentencing court's resolution of the conflicting evidence is not supported by substantial competent evidence. See Lumley, 25 Kan. App. 2d at 371. Consequently, there was no error in the sentencing court's reliance upon this statutory factor in granting Ussery's motion for a downward sentencing departure.
(d) guidelines policy considerations
The sentencing court found Ussery's offense was context-specific and his background demonstrated he was unlikely to pose a future threat to society. As such, considering several of the policy rationales of the KSGA, the sentencing court found a departure was warranted.
When presented with a sentencing departure motion, a sentencing court should consider the purposes and principles under which the KSGA was enacted, including (1) the belief that prison space should be reserved for serious or violent offenders; (2) the understanding the extent of sanction for criminal conduct should be based upon the harm inflicted; (3) the desire to create uniformity in the sanctions imposed, irrespective of socioeconomic, racial, or geographic factors; (4) the need for clarity in potential sanctions for specified conduct; (5) the desire to protect the public from serious offenders; (6) the goal of rehabilitation; and (7) the need to allocate public resources efficiently and wisely. See Favela, 259 Kan. at 233.
While a particular defendant's amenability to rehabilitation is not a substantial and compelling reason to depart from the presumptive guidelines sentence by itself, a sentencing court may properly consider such evidence in the totality of the circumstances in determining the appropriate penalty to be imposed for a particular offense if other factors warrant departure. See Murphy, 270 Kan. at 806-07. In State v. Grady, 258 Kan. 72, 87-88, 900 P.2d 227 (1995), our Supreme Court also approved the sentencing court's consideration of the defendant's lack of a criminal history as evidence of a lack of predisposition to commit future crimes.
Based upon the statements of character witnesses for Ussery at sentencing, we cannot conclude the sentencing court's finding that the defendant was receptive to rehabilitation is erroneous. Each of these considerations, by itself was insufficient to justify a departure but, the sentencing court could properly consider such in the totality of the circumstances. See Murphy, 270 Kan. at 806-07.
Extent of the Departure
Based upon the findings regarding the voluntary participation of the victim and the defendant's lack of criminal history and amenability to rehabilitation, the sentencing court acted within its authority in granting a downward sentencing departure. See Minor, 268 Kan. at 311 (citing State v. Zuck, 21 Kan. App. 2d 597, 603-04, 904 P.2d 1005, rev. denied 258 Kan. 863 [1995]). In addition, the sentencing court could properly weigh the context-specific nature of the offense, Ussary's risk to society, and his receptiveness to rehabilitation within the totality of the circumstances in deciding the extent of the departure.
However, the extent of a sentencing departure is also subject to review by this court. "Under an abuse of discretion standard of review, the question is whether the extent of the sentencing court's durational departure is consistent with the 'enacted purposes and principles of [the] sentencing guidelines' and 'proportionate to the severity of the crime of conviction and the offender's criminal history.'" Favela, 259 Kan. at 244 (quoting K.S.A. 1994 Supp. 21-4719[b][1]).
An abuse of discretion standard of review is highly deferential to the sentencing court. In order to justify a reversal, the appellate court must be prepared to declare that the sentencing court's decision was so arbitrary, fanciful, or unreasonable that no reasonable person in the position of the court would have reached a similar conclusion. See State v. Young, 277 Kan. 588, 597, 87 P.3d 308 (2004).
Here, the sentencing court granted not only a dispositional departure from presumptive prison to probation, but further departed significantly from a standard presumptive sentence of 155 months, down to 30 months. The underlying sentence imposed upon Ussery here is approximately equivalent to a severity level 5 person felony, as defined by the KSGA in 2002. See K.S.A. 2002 Supp. 21-4704. Offenses carrying similar penalties when committed by persons with similar criminal histories include indecent liberties with a child, K.S.A. 21-3503; sexual exploitation of a child, K.S.A. 2004 Supp. 21-3516; and aggravated sexual battery, K.S.A. 21-3518.
In Favela, our Supreme Court reviewed the extent of a departure in an attempted murder case. The sentencing court had reduced the presumptive attempted murder sentence of 51 to 59 months to 14 months, the equivalent of a sentence for aggravated assault. 259 Kan. at 244. In affirming the extent of the departure, the Favela court rejected the State's argument that no reasonable person would impose a sentence for aggravated assault for a conviction of attempted murder.
At first glance, Favela arguably controls here. However, Favela is distinguishable. Favela had witnessed his brother being stabbed by Willard LaGrange. After taking his brother to the hospital, Favela returned to the scene of the stabbing and brandished a gun, threatening to kill LaGrange. However, Favela did not specifically point his gun at any person. Eventually, Favela surrendered to the police without firing a shot. 259 Kan. at 216-17. In essence, the crime completed by Favela was equivalent to aggravated assault, even though his actions also supported a conviction for attempted murder. Under these circumstances and after considering the mitigating factors in favor of departing from the presumptive sentence, our Supreme Court concluded it was reasonable to reduce the defendant's sentence to the equivalent of aggravated assault.
In contrast, Ussery was not charged with and convicted of an attempted crime. Based upon the victim's voluntary participation, Ussery would still have been guilty of committing aggravated indecent liberties with a child, if the victim had legally been capable of consenting to sexual intercourse. Such an offense is a severity level 3 person felony, which in June 2003 carried a presumptive prison sentence of 55-59-61 months. See K.S.A. 21-3504(a)(1); K.S.A. 2002 Supp. 21-4704. Yet, here, the sentencing court departed even further.
While there are mitigating considerations, including the low probability Ussery would repeat a similar offense in the future and his receptiveness to rehabilitation, a downward sentencing departure to the equivalent of a level 5 person felony is disproportionate to the severity of the crime committed in this case (even considering the voluntary participation of the victim). We conclude no reasonable person would have departed from the presumptive sentence to such an extent when considering only the valid departure factors stated herein. Consequently, the departure was excessive under the factual circumstances presented here. The dispositional and durational departures constituted an abuse of judicial discretion. The sentence is vacated and the case remanded for resentencing proportionate to the act committed.
Partiality, Prejudice, Oppression, or Corrupt Motive
The State further contends the sentencing court's departure sentence was improperly motivated by partiality, prejudice, oppression, or corrupt motive. The State's brief on this issue is entirely conclusory. An issue raised but not argued is generally deemed abandoned. See State v. Hunt, 275 Kan. 811, 821, 69 P.3d 571 (2003).
In State v. Sampsel, 268 Kan. 264, 997 P.2d 664 (2000), our Supreme Court considered a similar claim for improper motive behind a substantial downward departure in a statutory rape case. During the trial, evidence was presented that the victim was actively involved in promoting the sexual conduct of the defendant. 268 Kan. at 274.
The Sampsel court admonished the sentencing court for improper comments but refused to declare such comments were indicative of an improper motive or partiality in sentencing. If the sentencing court's comments in Sampsel cannot be regarded as evidence of prejudice or partiality, there is nothing within this case to support such a conclusion. As a result, this issue must fail.
We vacate the sentence and remand to the district court for resentencing proportionate to the severity of the offense committed.


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Despite a recent clamor within Washington policy circles and troublesome commentary in the US media regarding further military intervention in Syria's ongoing civil war, a new survey of US opinion shows little appetite for another war of choice in a region far from home.
The poll, conducted by CBS News and the New York Times, shows 62 percent of Americans believe "the U.S. does not have a responsibility to intervene in Syria."
As CBS News reports:
Sixty-two percent of Americans continue to say the United States does not have a responsibility to intervene in the fighting in Syria, while 24 percent of Americans think the United States does have a responsibility to do something about the fighting between government forces and anti-government groups there - a four point increase since last month.
Most Democrats, Republicans, and independents agree that the U.S. does not have a responsibility to get involved in the conflict in Syria.
Progressive foreign policy analysts, for their part, have been consistent in their warnings against such involvement.
Phyllis Bennis, a fellow at the Institute for Policy Studies, says that a growing push for war in Syria should remind US citizens of the invasion of Iraq in 2003, which was was largely fueled by an uncritical press and a barrage of false information by some of the same power brokers now pushing for intervention in Syria.
"Now, we don't know that there is any fake information going on [in Syria]," Bennis said in an interview with Al-Jazeera. "But we certainly know that there is no valid information yet. So I think it is way premature to be talking about whether this should result in a 'game changing' scenario—whether it be boots on the ground, or helping the rebels with more weapons."
And Seumas Milne, foreign affairs columnnist at the Guardian, has described how "intervention by the western powers" could "increase the death toll," warning the possibility of "blowback" in Syria is extremely high and could push the region into "a still more devastating conflict."
Simply adding more arms to the region, Bennis argues, will make things worse, not better.
"We need to move towards demilitarizing, deescalating the number of weapons of all kinds that are flowing into the region, not sending in more weapons and escalating the civil war," she said. "Killing more Syrians on any side with conventional weapons in a so-called search for alleged chemical weapons that may or may not even exist…this is just making everything worse."
Watch the full Bennis interview below:

subset: commoncrawl


text:
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In news destined to make conservatives revolt (or retch), a movement has been started to draft Paul Krugman as a successor to Tim Geithner as Treasury secretary.
A petition begun by the actor Danny Glover at Signon.org had nearly 225,652 supporters as of Tuesday morning. The group's goal is to reach 250,000 signatures.
"We urge you to nominate Paul Krugman for Treasury Secretary," the group's statement reads. "Krugman will protect Social Security and Medicare from benefit cuts, promote policies to create jobs, and help defeat the austerity dogma in Washington and around the world."
Krugman, the Nobel Prize-winning Princeton economist and controversial liberal columnist for The New York Times, most recently made waves on Monday by joining calls for the U.S. to mint a $1 trillion platinum coin as a way around another debt ceiling fight.
"It's easy to make sententious remarks to the effect that we shouldn't look for gimmicks, we should sit down like serious people and deal with our problems realistically," Krugman wrote in typical bombastic prose. "That may sound reasonable—if you've been living in a cave for the past four years. Given the realities of our political situation, and in particular the mixture of ruthlessness and craziness that now characterizes House Republicans, it's just ridiculous—far more ridiculous than the notion of the coin."
Krugman has been outspoken in recent years about the need for more, not less, government spending, in the face of skyrocketing debt and deficits, drawing fire from commentators on the right.
Alas, it may all be for naught. Krugman immediately responded to the draft movement in a blog post by noting that while "flattered, it really is a bad idea" and that "an administrative job requires making hiring and firing decisions, it means keeping track of many things, and that, to say the least, is not my forte."
"The New York Times isn't just some newspaper somewhere, it's the nation's paper of record," he continued. "As a result, being an op-ed columnist at The Times is a pretty big deal—one I'm immensely grateful to have been granted—and those who hold the position, if they know how to use it effectively, have a lot more influence on national debate than, say, most senators.
"[I]think I should stay in my current position as Mr. Outside, an annoying if sympathetic voice they can't ignore."


text:
Hot and Sweet Chicken
Makes 4 servings
This recipe can be offered as a "Healthy Choice" because it is a no-fat recipe. It is simple to prep and delivers exotic flavors.
Find this recipe and more in Chef Paul Prudhomme's Fork In The Road.
2 tablespoons Chef Paul Prudhomme's Poultry Magic® OR
½ teaspoon ground ginger
¼ teaspoon ground nutmeg
¼ teaspoon ground coriander
1 pound chicken or turkey thigh meat or white breast meat, cut into 2 x 1/4-inch julienne strips
3 tablespoons cornstarch
2½ cups defatted chicken stock
¼ cup thinly sliced fresh ginger
1 small onion, peeled and cut into julienne strips
¾ cup carrots, scrubbed and sliced diagonally ¼ inch thick
¾ cup julienne yellow bell peppers
¾ cup julienne green bell peppers
2 teaspoons thinly sliced fresh garlic
1 tablespoon Chef Paul Prudhomme's Magic Pepper Sauce®
¼ cup tamari (see Note)
¼ cup balsamic vinegar
1 (8-ounce) can tomato sauce
6 (1-gram) packets artificial sweetener or sugar, optional
4 cups cooked long grain white rice
how to prepare
Combine the first 4 ingredients in a small bowl to make the Seasoning Mix. Sprinkle all surfaces of the chicken evenly with 2 teaspoons of the mix and rub it in well.
Dissolve the cornstarch in 4 tablespoons of the stock and set aside. Preheat a heavy 12‑inch skillet, preferably nonstick, over high heat to 350°, about 5 minutes.
Add the chicken, stir, and cook until it starts to brown, about 2 minutes. Add the fresh ginger and onions, stir and cook for 2 minutes. Add the remaining vegetables, Magic Pepper Sauce® and seasoning mix, stir, and cook for 3 minutes. Stir in the tamari and vinegar, stirring occasionally, until much of the liquid evaporates and the sauce becomes thick and syrupy. Stir in the tomato sauce and remaining stock, bring to a boil, and cook for 2 minutes. Add the cornstarch mixture, cook for 2 minutes, remove from the heat, and, if desired, add the artificial sweetener. Serve over the rice.
Note: Tamari is a very flavorful kind of soy sauce, available in specialty markets and the international or ethnic food sections of many supermarkets. If it is unavailable where you shop, use the best soy sauce you can find.
Note: This recipe is a no-added fat, no processed sugar recipe from Chef Paul Prudhomme's Fork In The Road cookbook.
* If you prefer a little spicier dish, simply add more Magic Pepper Sauce®.
Copyright© 1993 By Paul Prudhomme


text:
Tursiops truncatus
|Scope: Global
Language: English
|Scientific Name:
|Tursiops truncatus (Montagu, 1821)
|Infra-specific Taxa Assessed:
|Regional Assessments:
Common Name(s):
Tursiops gephyreus Lahille, 1908
Tursiops gilli Dall, 1873
Tursiops nuuanu Andrews, 1911
|Taxonomic Notes:
|All bottlenose dolphins around the world were previously recognized as T. truncatus, but recently the genus has been split into two species: T. truncatus and T. aduncus (the smaller Indo-Pacific Bottlenose Dolphin – Wang et al. 1999, 2000a,b). However, the taxonomy of bottlenose dolphins is confused, due to geographical variation, and it is very possible that additional species will be recognized in the future. For example, two forms in the North Atlantic, an offshore and a coastal form, are distinguishable on the basis of morphology and ecological markers (e.g., Mead and Potter 1995), have fixed genetic differences and, therefore, eventually may be assigned to different species (Leduc and Curry 1997, Hoelzel et al. 1998, Reeves et al. 2003).
Bottlenose dolphins in the Black Sea are recognized as a subspecies possessing morphological differences from Atlantic and Pacific dolphins (Barabasch-Nikiforov 1960, Geptner et al. 1976). The Black Sea subpopulation is also differentiated genetically from other bottlenose dolphins in the eastern and western Mediterranean and the northeastern Atlantic (Natoli et al. 2005), and the available evidence (Birkun 2006) supports recognition of the subspecies T. t. ponticus.
|Red List Category & Criteria:
|Least Concern ver 3.1
|Year Published:
|Date Assessed:
|Hammond, P.S., Bearzi, G., Bjørge, A., Forney, K.A., Karkzmarski, L., Kasuya, T., Perrin, W.F., Scott, M.D., Wang, J.Y. , Wells, R.S. & Wilson, B.
|Rojas-Bracho, L. & Smith, B.
Although there are many threats operating on local populations, the species is widespread and abundant, and none of these threats is believed to be resulting in a major global population decline.
|Previously published Red List assessments:
|Range Description:
|Common Bottlenose Dolphins are distributed worldwide through tropical and temperate inshore, coastal, shelf, and oceanic waters (Leatherwood and Reeves 1990, Wells and Scott 1999, Reynolds et al. 2000). Bottlenose Dolphins generally do not range pole-ward of 45°except in northern Europe (as far as the Faroe Islands 62°N 7°W - Bloch and Mikkelsen 2000) and to southern New Zealand. The species is rare in the Baltic Sea (it may best be considered extralimital there) and is vagrant to Newfoundland and Norway (Wells and Scott 1999).
The map shows where the species may occur based on oceanography. The species has not been recorded for all the states within the hypothetical range as shown on the map. States for which confirmed records of the species exist are included in the list of native range states. States within the hypothetical range but for which no confirmed records exist are included in the Presence Uncertain list.
|Countries occurrence:
Native:Albania; Algeria; American Samoa; Angola; Anguilla; Antigua and Barbuda; Argentina; Aruba; Australia; Bahamas; Bahrain; Bangladesh; Barbados; Belgium; Belize; Benin; Bermuda; Bonaire, Sint Eustatius and Saba (Saba, Sint Eustatius); Bosnia and Herzegovina; Brazil; British Indian Ocean Territory; Brunei Darussalam; Bulgaria; Cambodia; Cameroon; Canada (Newfoundland I - Vagrant); Cape Verde; Cayman Islands; Chile; China; Cocos (Keeling) Islands; Colombia; Comoros; Cook Islands; Costa Rica; Côte d'Ivoire; Croatia; Cuba; Curaçao; Cyprus; Denmark; Djibouti; Dominica; Dominican Republic; Ecuador; Egypt; El Salvador; Falkland Islands (Malvinas); Faroe Islands; Fiji; France; French Guiana; French Polynesia; Gabon; Gambia; Georgia; Germany; Ghana; Gibraltar; Greece; Grenada; Guadeloupe; Guam; Guatemala; Guernsey; Guinea; Guinea-Bissau; Guyana; Haiti; Honduras; Hong Kong; India; Indonesia; Iran, Islamic Republic of; Ireland; Isle of Man; Israel; Italy; Jamaica; Japan; Jersey; Kenya; Kiribati; Korea, Republic of; Kuwait; Lebanon; Liberia; Libya; Madagascar; Malaysia; Maldives; Malta; Marshall Islands; Martinique; Mauritania; Mayotte; Mexico; Micronesia, Federated States of ; Monaco; Montenegro; Morocco; Mozambique; Myanmar; Namibia; Nauru; Netherlands; New Caledonia; New Zealand; Nicaragua; Nigeria; Niue; Northern Mariana Islands; Oman; Pakistan; Palau; Panama; Papua New Guinea; Peru; Philippines; Pitcairn; Portugal; Puerto Rico; Qatar; Réunion; Romania; Russian Federation; Saint Helena, Ascension and Tristan da Cunha; Saint Kitts and Nevis; Saint Lucia; Saint Martin (French part); Saint Pierre and Miquelon; Saint Vincent and the Grenadines; Samoa; Sao Tomé and Principe; Saudi Arabia; Senegal; Seychelles; Singapore; Sint Maarten (Dutch part); Slovenia; Solomon Islands; Somalia; South Africa; Spain; Sri Lanka; Suriname; Syrian Arab Republic; Taiwan, Province of China; Tanzania, United Republic of; Thailand; Togo; Tonga; Trinidad and Tobago; Tunisia; Turkey; Turks and Caicos Islands; Ukraine; United Arab Emirates; United Kingdom; United States; Uruguay; Vanuatu; Venezuela, Bolivarian Republic of; Viet Nam; Virgin Islands, British; Virgin Islands, U.S.; Wallis and Futuna; Western Sahara; Yemen
|FAO Marine Fishing Areas:
Atlantic – western central; Atlantic – southwest; Atlantic – eastern central; Atlantic – northeast; Atlantic – northwest; Atlantic – southeast; Indian Ocean – western; Indian Ocean – eastern; Mediterranean and Black Sea; Pacific – southwest; Pacific – western central; Pacific – northeast; Pacific – eastern central; Pacific – northwest; Pacific – southeast
|Additional data:
|Range Map:
|Click here to open the map viewer and explore range.
|Abundance has been estimated for several parts of the species' range. Summing available estimates, a minimum world-wide estimate is 600,000.
U.S. National Marine Fisheries Service surveys have estimated 52,000 Bottlenose Dolphins in the northern Gulf of Mexico (3,708 [CV=42%] in oceanic waters beyond the shelf edge (Mullin 2006), 25,320 [CV=26%] on the outer continental shelf, 17,602 in coastal waters, and 5,063 in estuaries, bays, and channels – Waring et al. 2008). There are approximately 126,000 off the eastern coast of North America (including 81,588 [CV=17%] in offshore waters and 32,533 (winter) to 43,951 (summer) in coastal waters – Waring et al. 2008). Pacific surveys found 243,500 (CV=29%) in the eastern tropical Pacific (Wade and Gerrodette 1993), 3,215 (CV= 59%) off Hawaii (Barlow 2006), 323 (CV=13%) in coastal California waters (Dudzik et al. 2006), and an average of about 2,000 (CV = 44%) in the offshore waters of California/Oregon/Washington (Barlow and Forney in press). Japanese surveys found 168,000 (CV=26%) in the Northwestern Pacific west of 180ºE, including 36,791 (CV=25%) in Japanese coastal waters (Miyashita 1993). In the eastern Sulu Sea, Dolar et al (2006) estimated 2,628. Approximately 900 Bottlenose Dolphins were found along 400 km of coastal waters off KwaZulu-Natal (however, many of these may have been T. aduncus - Reyes 1991; Wells and Scott 1999).
Total abundance in the Mediterranean is unknown but thought to be in the low 10,000s based on observed densities in areas that have been surveyed (Bearzi and Fortuna 2006). Surveys in the northwestern Mediterranean estimated 7,654 (CV=45%) present (Forcada et al. 2004). An estimated 584 (CV=28%) occur in the Alboran Sea (Cañadas and Hammond 2006). Mediterranean Bottlenose Dolphins exhibit population structure, based on toxicology and diet (Borrell et al. 2005) and genetics (Natoli et al. 2005).
The total population size in the Black Sea is unknown. However, there are recent abundance estimates for parts of the range suggesting that population size is at least several thousands (Birkun 2006).
Preliminary estimates from the late 1980s indicate about 1,000 dolphins occur around the Faroe Islands (Sigurjónsson et al. 1989, Sigurjónsson and Gunnlaugsson 1990, Bloch and Mikkelsen 2000). Estimates of inshore bottlenose dolphins along the European Atlantic coasts total at least 610 individuals (Liret et al. 1998, Wilson et al. 1999, Grellier and Wilson 2003, Evans et al. 2002, Ingram 2000, White and Webb 1995, Baines et al. 2002, Gaspar 2003). A wide-scale survey in 2005 of western European continental shelf waters including the western Baltic, North Sea and Atlantic margin as far as southern Spain estimated that there were 12,600 Bottlenose Dolphins in this area (CV=27%, P. Hammond pers. comm..). Minimum estimates exist for other small areas around the world: for example, 122 (95% CI = 114-140) off Belize (Kerr et al. 2005) and 66 in Doubtful Sound, New Zealand (Hase and Schneider 2001).
|Current Population Trend:
|Additional data:
|Habitat and Ecology:
|Common Bottlenose Dolphins tend to be primarily coastal, but they can also be found in pelagic waters (Wells and Scott 1999). Where distinct ecotypes are known, the inshore form frequents estuaries, bays, lagoons and other shallow coastal regions, occasionally ranging far up into rivers. The offshore form is apparently less restricted in range and movement. Some offshore dolphins are residents around oceanic islands. In many inshore areas Bottlenose Dolphins maintain definable, long-term multi-generational home ranges, but in some locations near the extremes of the species range they are migratory. Off the coasts of North America, they tend to inhabit waters with surface temperatures ranging from about 10°C to 32°C (Wells and Scott, 1999). Black Sea Bottlenose Dolphins are common over the continental shelf; they sometimes occur far offshore (Birkun 2006).
Bottlenose Dolphins are commonly associated with many other cetaceans, including both large whales and other dolphin species (Wells and Scott 1999). Mixed schools with Indo-Pacific bottlenose dolphins have been found, for instance off China and Taiwan (J. Wang pers. comm.).
Bottlenose Dolphins consume a wide variety of prey species, mostly fish and squid (Barros and Odell 1990, Barros and Wells 1998, Blanco et al. 2001, Santos et al. 2001). They sometimes eat shrimps and other crustaceans.
|Use and Trade:
|It is hunted in many areas for human consumption, and as bait in fisheries. In addition, animals are removed from the widely for captive display.
|Major Threat(s):
Coastal and island-centred populations are especially vulnerable to hunting, incidental catch, and habitat degradation (Curry and Smith 1997). Acute conservation problems are known or suspected in at least: (a) the Mediterranean and Black seas (IWC 1992, Reeves and Notarbartolo di Sciara 2006); (b) Sri Lanka (Leatherwood and Reeves 1989); (c) Peru, Ecuador and Chile (Read et al. 1988; Van Waerebeek et al. 1990, 1997; Sanino et al. 2004; K. Van Waerebeek pers. comm.); (d) Taiwan (Hammond and Leatherwood 1984, Perrin 1989, Wang et al. 1999); and (e) Japan (Miyazaki 1983, Kasuya 1985, Reeves et al. 2003). Dolphin catches for bait, human consumption, or to remove competition with fisheries have been reported worldwide (Wells and Scott 1999, 2002). In Peru, coastal fisheries still take Tursiops and other cetaceans for human consumption and bait, using harpoons and gill nets (K. Van Waerebeek pers. comm.). It is taken opportunistically by harpoon in Sri Lanka (Ilangakoon 1997). In Taiwan, Common Bottlenose Dolphins comprise a major part of the small cetaceans taken by harpoon (J. Wang pers. comm.).
The only Mediterranean area with quantitative historical information is the northern Adriatic Sea, where Bottlenose Dolphins likely have declined by at least 50% over the past 50 years, largely as a consequence of historical killing in extermination campaigns to reduce competition for fish, followed by habitat degradation and overfishing. The extermination campaigns were conducted until the early 1960s (Bearzi et al. 2004, Bearzi and Fortuna 2006). For the north-western Mediterranean, the available information suggests similar trends (Bearzi and Fortuna 2006).
Drive fisheries have been reported from the Faroe Islands and Japan. Up to 308 are taken annually in the Faroe Islands drive fishery (dating back to 1803), often with Long-finned Pilot Whales (Reyes 1991; Bloch 1998). Drive and harpoon fisheries in Japan catch Bottlenose Dolphins for human consumption and to remove perceived competition with commercial fisheries (Wells and Scott 1999). Average catch from 1995–2004 was 594 per annum (Kasuya 2007).
The Black Sea subspecies has had extensive directed takes for commercial products (Kleinenberg 1956, Tomilin 1957, Buckland et al. 1992), including takes of at least 24,000–28,000 during 1946–1983 in the Black Sea off Turkey. However, the total number of dolphins killed was certainly much greater (probably by tens of thousands) as figures do not include, or only partially include, catch statistics from other Black Sea countries (Birkun 2006).
Live capture of Common Bottlenose Dolphins for public display, research, and military applications have occurred in several parts of the species' range. Worldwide estimates of removal are unavailable, but more than 1,500 were caught in United States, Mexican, and Bahamian waters through 1980 (Leatherwood and Reeves 1982, Fisher and Reeves 2005). Some live-capture removals continue in other countries including Cuba where at least 238 were captured in 1986–2004 (Van Waerebeek et al. 2006), the Solomon Islands, Japan, and China (Wells and Scott 1999, R.S. Wells pers. comm.). Live-capture removal of Black Sea Bottlenose Dolphins, including mortality during capture operations, is estimated at 1,000–2,000 since the early 1960s. Live-captures continue in the Russian Federation, with 10-20 animals taken annually from a small area in the Kerch Strait, Russia (Birkun 2002a, 2006). According to CITES statistics, at least 92 individuals were removed from the Black Sea region during 1990-1999 (Reeves et al. 2003), and Russia reportedly has exported at least 66 for travelling shows since 1997 (Fisher and Reeves 2005).
Incidental catches of Common Bottlenose Dolphins are known from throughout the species' range, in gillnets, driftnets, purse seines, trawls, long-lines, and on hook-and-line gear used in commercial and recreational fisheries, but the level of mortality is often poorly documented (Wells and Scott 1999). Gillnet and purse-seine fisheries off Peru take an unknown number annually. An estimated 42 common Bottlenose Dolphins were taken and landed at Cerro Azul, a Peruvian port, in 1994; while an annual gillnet fisheries bycatch of 227 animals was estimated for the Gulf of Guayaquil, Ecuador, also in 1994 (Van Waerebeek et al. 1997). The estimated annual incidental mortality in the eastern tropical Pacific fishery for tuna ranged up to almost 200, but the mortality has declined to less than 10 since 1998 (M. Scott pers. comm.). Incidental catches in Chinese fisheries reach several hundred per year (Yang et al. 1999). Coastal gillnets and shark drift gillnets in the mid-Atlantic region of the US take on average 66 annually (Waring et al. 2008). They are taken incidentally in gillnets in Sri Lanka (Ilangakoon 1997). Taiwanese coastal and distant water longline fisheries for tuna and sharks take bottlenose dolphins incidentally (for the latter, the origin of the animals is unknown), as do a variety of gillnets, including driftnets (Wang and Yang 2002; J. Wang pers. comm.).
Annual Black Sea Bottlenose Dolphin incidental mortality in bottom-set gillnets from 1946 through the 1980s is roughly estimated in the hundreds. The scale of this mortality almost certainly increased in the 1990s-2000s owing to the rapid expansion of illegal, unreported and unregulated fishing (Birkun 2006). According to Öztürk (1999) at least 200–300 Bottlenose Dolphins per year may be taken incidentally in Turkish fisheries in a variety of fishing nets, especially bottom-set gill nets.
Common Bottlenose Dolphins in coastal areas are exposed to a wide variety of threats in addition to direct and indirect takes. Threats that are cause for concern include: 1) the toxic effects of xenobiotic chemicals; 2) reduced prey availability caused by environmental degradation and overfishing (Pauly et al. 1998; Jackson et al. 2001); 3) direct and indirect disturbance and harassment (e.g. boat traffic and commercial dolphin watching and interactive programs); 4) marine construction and demolition and 5) other forms of habitat destruction and degradation (including anthropogenic noise). Although these and other threats are technically challenging to quantify by comparison with takes, their cumulative impact is likely to result in longitudinal population declines. Lack of historical data in many cases hampers understanding of long term trends, possibly resulting in shifting baselines. The contribution of anthropogenic factors to an increasing number of Unusual Mortality Events involving Bottlenose Dolphins remains to be determined (Spradlin et al. 2005).
Environmental contaminants likely impact health and reproductive success of the Common Bottlenose Dolphins in parts of its range. Lahvis et al. (1995) correlated concentrations of PCBs and DDT in the blood of inshore Bottlenose Dolphins with decline in immune system function. Males in some areas such as Florida accumulate levels of PCBs more than an order of magnitude greater than the threshold for adverse health effects identified by Kannan et al. (2000) (Wells et al. 2005). A risk assessment relative to PCB burdens suggested elevated probabilities of first-born mortality at several sites in the U.S. (Schwacke et al. 2002, Wells et al. 2005).
Bottlenose Dolphins sometimes forage around fish-farm cages or take fish from gillnets (e.g., Reeves et al. 2001; Read et al. 2003), commercial trawling gear, crab traps, or recreational fishing gear (Wells and Scott 1999). This can result in incidental mortality through entanglement and ingestion of fishing gear.
|Conservation Actions:
The species is listed in Appendix II of CITES.
The Bottlenose Dolphin has been afforded special protected status under Annex II of the European Union's Habitats Directive. Commercial hunting of Black Sea cetaceans including Bottlenose Dolphins was banned in 1966 in the former USSR, Bulgaria and Romania, and in 1983 in Turkey.
|Hammond, P.S., Bearzi, G., Bjørge, A., Forney, K.A., Karkzmarski, L., Kasuya, T., Perrin, W.F., Scott, M.D., Wang, J.Y. , Wells, R.S. & Wilson, B. 2012. Tursiops truncatus. The IUCN Red List of Threatened Species 2012: e.T22563A17347397. . Downloaded on 21 September 2018.
|To make use of this information, please check the <Terms of Use>.
|If you see any errors or have any questions or suggestions on what is shown on this page, please provide us with feedback so that we can correct or extend the information provided


text:
The status of the tournament development can be found in post2 and in the first post of page2
Here only the latest news
Drinking in the bar is finished for now; we have had some good fights
Ok there might have also been some nasty fights
Anyway the good thing is that most part of the bar is still functional
Furthermore I am happy to decleare DBandit70 & bfunny27 as the winners of our opening party
No need to discuss further the (nasty) details of our opening party, so I simply officaly declare this bar as opened
Premiums as well as non-premiums are welcome in this bar.
You should enter as a double team, but it is possible to try to get a partner here.
You will be in one game at the time and in total you have to play 4 games.
All games will be with 3 double teams, after the 4 games your team will have played against all other 8 teams.
Start first games on 6 June. You need to be able to start your game(s) at that moment.
Double Iron Bar
A little while ago I opened a nice bar here at CC. It was call "Bar Double Dutch". In fact we have had a nice opening party at that bar, but unfortunately it burned down during that opening. To prevent burning down again, we are busy with rebuild it in Iron. Since it also looks a bit different now, we also renamed it to "Double Iron Bar".
I hope that you and your partner will enjoy the re-opening of my bar
To show that you like this bar you have to start drinking within 48 hours. With the new entering method you no longer need to wait for the earlier teams, you only need to join the correct team.
To celebrate this opening I will serve some double drinks on the three 6-persons hang-tables. During the drinks you will play a nice related game and since a double iron bar is nothing else then a rail-road it will all be on rail maps. Between the drinks I will rotate all couples over the tables again (using the windmill system), but don't worry you will stay together with your partner. Although the drinks will become stronger, you can keep ordering new drinks (at this is the re-opening party they are for free) as long as somebody at your table is in the game.
Also this time we start with a cola: Coca Cola
Second all kind of Australian beer, we start with XXXX.
After this beer we will go to have some sake (rise-wine) from Thailand
And finally several kind of liqueurs from Europe, we start with dubbele graanjenever
The games
In post 3 you can find how I came to the following games:
1) Cola: Rail USA, doubles, sequential, flat-rate, adjacent, sunny
2) Beer: Rail Australia, doubles, sequential, escalating, unlimited, sunny
3) Sake: Bamboo Jack, doubles, sequential, flat-rate, chained, sunny
4) Liqueur: Rail Europe, doubles, sequential, flat-rate, unlimited, fog
As score we use the windmill score. For Rail USA; Rail Autralia and Rail Europe you will get more tulips in case you leave a table later. You will get for each game 21, 17, 13, 9, 7 or 5 tulips depending on your position. In fact it will be a team-score, so the winning team will get (21+17=) 38 tulips. Second team 22 tulips and third team 12 tulips. The third team is the team from with both people are first kicked out.
The Bamboo Jack map is related to WWII and has a different score. In WWII people did eat tulips because of the hunger. As score for this map you have to eat tulips 0, 4, 8, 12, 14 or 16 tulips depending on your position. With the same rule for team scoring teams will have to eat (0+4=) 4 tulips; (8+12=) 20 tulips resp. 30 tulips. In case your team is short in the number of tulips at that moment, you are back at zero tulips; negative tulips don't exists.
In case there is at the end of the competition a tie in number of tulips collected, the results of game(s) in which those teams where in together will show there relative position. This makes a tie of two teams impossible and of three or more teams unlikely. But a not solvable tie of 3 or more teams is possible.
If at the end there will be a tie of three or four teams for the first place, those teams will get an extra Rail Europe game, together with the tulips for that game.
A tie of two teams is not possible and the risk of a tie of more then four is too unlikely to anticipate on. Potential ties at other places then first place, will stay unsolved.
In case I need a single reserve I cannot give the remaining person a better position in this tournament, but the reserve will bring one bonus tulip. In case the remaining person brings his or her own new team-mate, there will be no bonus (so only a bonus tulip for people coming from the reserve list of singles).
In case I need to replace a complete team then that reserve team will take over the tulips of the leaving team, however in case the leaving team had a bad position the reserve team will get the same number of tulips as the one on position 3.5 (so average between team 3 and 4; with the double that correspond with position number 7). In all cases of a complete reserve team, it will get on top of that start score two bonus tulips (one each).
Predictions like this are easily not 100% correct, see my earlier tournament with predictions: link, link, link. The problem is that they really are only predictions.
• Expected start first games at 6 June
• Expected start last game on 27 July
• Expected the very last game to be finished at 21 August
Hm basically bad predictions this time.
- first game started on 6 June : error : 0%
Last game started 4 Sept: 39 days after the predicted date. Prediction made 15 May that is 112 days earlier error: 35%
Last game finished at 29 Oct, that is 167 days after that it was predicted on 15 May and 69 days too late: error 41%
Combining 0%; 35% and 41% gives a total avg error of 25%.


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Eyelid drooping is excessive sagging of the upper eyelid.
A drooping eyelid can stay constant, worsen over time (progressive), or come and go (intermittent). It can be one-sided or on both sides. When drooping is one-sided (unilateral), it is easy to detect by comparing the two eyelids. Drooping is more difficult to detect when it occurs on both sides, or if there is only a slight problem.
A furrowed forehead or a chin-up head position may indicate that someone is trying to see under their drooping lids. Eyelid drooping can make someone appear sleepy or tired.
Drooping lids are either present at birth (congenital) or develop later in life. A drooping eyelid is usually not a serious problem, but your health care provider will need to examine your eyes and lids.
Drooping eyelids may be due to a variety of conditions include aging, diabetes, stroke, Horner syndrome, myasthenia gravis, or a brain tumor or other cancer that affects nerve or muscle reactions. Below are some common causes.
Both eyelids drooping:
One eyelid drooping:
Below is a list of recommendations based on the various causes of eye drooping:
For all other causes -- follow your health care provider's recommendations.
Contact your health care provider if:
Your health care provider will get a medical history and perform a physical examination.
Medical history questions may include:
The physical examination may include a detailed assessment of nerve functioning.
Diagnostic tests that may be performed include:
Surgery may be necessary to correct problems with the muscles that open the eyelid (levator muscle dysfunction).
You may get special spectacle frames that suspend the eyelid by traction with a wire. Usually these frames help patients with temporary, partial paralysis, or those who are not good candidates for surgery.
After seeing your health care provider:
You may want to add a diagnosis related to eyelid drooping to your personal medical record.
Yanoff M, Cameron D. Diseases of the visual system. In: Goldman L, Schafer AI, eds. Cecil Medicine. 24th ed. Philadelphia, Pa: Saunders Elsevier; 2011:chap 431.
Custer PL. Blepharoptosis. In: Yanoff M, Duker JS, eds. Ophthalmology. 3rd ed. St. Louis, Mo: Mosby Elsevier; 2008:chap 12.5.


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Featured News - Current News - Archived News - News Categories
by Susan Mikula Campbell
The Wheatfield Town Board on Monday held three public hearings before getting its regular meeting under way.
The first hearing involved rezoning that would allow a carwash behind the Bailly's convenience store and gas station on the northeast corner of Shawnee and Lockport roads. The other hearings involved an update to the town's master plan and a proposal for an airport overlay district.
The Town Board went on to OK the rezoning for the carwash. Colby Smith, chief executive officer of Colby Development, said the 1.9-acre property on which the business is located is zoned commercial for 1.6 acres. The rest is rural residential. The change allows about 0.9 acres of rural residential land to become commercial. The remainder of the rural residential portion would stay with its current zoning to act as a buffer zone.
"We thought it would be good for the neighborhood - another service for that neighborhood that they could use," said Planning Board Chairman Richard Muscatello.
No action was taken on the master plan updates or the airport overlay district. Both projects were to be put on the town's website to allow further resident comments.
Muscatello said the goals for the town in the master plan remain fairly constant. "However, some new objectives were added, for example, preparation of a town-wide emergency management plan, creation of a master greenspace plan, protecting the farming industry, regional planning and smart growth.
With the airport overlay district, Muscatello said the goal is to promote and attract well-planned economic development in the town.
There probably will be further public hearings on this matter, he added.
"Misinformation has been circulating ... I guess for political reasons," he said. "If adopted it would not shut down any existing business ... those scare tactics simply are not true."
The plan would focus on the location of the airport to attract related industry to that area.
Resident Patti Weiss objected, saying the expanded boundaries for the district would infringe upon the residents of Bergholz and could put industry on the 11 acres of farmland she owns.
In other matters:
•The board approved a new contract with Wendel Duchscherer Architects and Engineers for services during 2013, with a retainer amount of $2,610 per month. Supervisor Bob Cliffe noted that this represents an increase of $50 per month and is the first time the rate has gone up in four years.
The board also authorized Wendel to prepare a cost proposal for extension of the sewer line about 1,100 feet on Wendt Drive.
Water/Sewer Department Superintendent Rich Donner said there are three structures on that portion of the road that could use sewers and one business intending to move in that would like to have sewers.
•County Legislator Dave Godfrey was among the speakers at the meeting. He assured residents that the new federal drone project at the Niagara Falls Air Reserve Station will not mean that drones will be flying overhead.
"The FAA will not allow that in commercial airspace," he said, likening the training project to "kids in chairs with joysticks."
•Recreation Director Ed Sturgeon reminded residents that the town currently is actively accepting registrations for spring sports.
•The board approved the job description and pay rate for a deputy recreation director. The new position is subject to approval by Niagara County Civil Service and will be posted internally first. The board also approved creating a second automotive mechanics position in the Highway Department, filling a vacant position.
•The board authorized the highway superintendent and water/sewer superintendent to each solicit bids for a mini excavator. The highway department also is seeking a skid-steer loader.
•The next Wheatfield Town Board regular meeting is scheduled for 7:30 p.m. Monday, Jan. 28.


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Get ready for the BBQ season, lets try Barbecue-roasted baby potatoes recipe
Ingredients (serves 8)
- 1kg small chat potatoes
- Olive oil cooking spray
- 2 teaspoons sea salt flakes
- Soak skewers in cold water for 30 minutes. Drain. Preheat barbecue grill plate on medium heat.
- Place potatoes into a large saucepan. Cover with cold water. Bring to the boil over high heat. Reduce heat to medium-low. Simmer for 5 minutes or until just tender when tested with a skewer. Drain. Rinse under cold water. Cut potatoes in half. Thread onto skewers.
- Spray potatoes with oil. Sprinkle with sea salt. Barbecue for 30 minutes, turning every 10 minutes, or until golden and crisp
Super Food Ideas - November 2004, Page 48
Recipe by Dixie Elliott


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Perry's indictment: An abuse of the legal systemEDITORIAL STAFF
August 21. 2014 6:03PM
Texas Gov. Rick Perry probably should not have vetoed funding for the public integrity unit controlled by Travis County District Attorney Rosemary Lehmberg. He absolutely should not have been indicted for doing it. The indictment is an abuse of the state's legal system, done in the name of punishing an abuse of the political system. One does not justify the other.
After a conviction for drunk driving, Lehmberg refused to resign her office, although part of her job is to prosecute drunk driving cases. She should have resigned, and politicians of both parties should have demanded it. Perry did, and he threatened to veto state funding for an investigations office she oversaw. She stayed put, and he vetoed the funding.
For that, he was indicted on two felony counts of abuse of power. Really.
Perry, who visits New Hampshire today, was defiant at his booking, and rightly so. Even The New York Times editorial board, which despises him, criticized the apparent "overzealous prosecution" in this case. The Times did not go far enough. This is not just overzealous prosecution. It is an attempt to criminalize a political dispute, which is a dangerous step in a nation in which the government is designed specifically to create political friction.
Texas is well known for its hardball politics, which is what the Perry-Lehmberg feud was. The only abuse apparent here was committed by the prosecutor. It is Texas, not Perry, that is disgraced by this indictment.


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Start-up office draws up plans for DLR's new aerospace institute
"DLR Aerospace Institute Bremen - Project Office" - a plaque bearing these words, positioned right next to the University of Bremen's drop tower, will soon mark the spot of an important development for Bremen as a scientific and business location. By establishing a start-up office, the German Aerospace Center (DLR) is pursuing its specific plans to set up a new aerospace institute in Bremen.
On Thursday, 17 August, at a joint reception held in the Town Hall, the President of the Senate of the Free Hanseatic City of Bremen, Jens Böhrnsen, and the Chairman of the Executive Board of DLR, Prof. Dr Sigmar Wittig, opened a project office which will begin its work in Bremen on 1 September 2006.
The financial course has been set for the founding of the new establishment, planned for 1 January 2007 and once the federal government budget has been passed, the long-term financial basis of the new DLR Institute for Space Systems will be guaranteed. In June 2006, the Senate of the Free Hanseatic City of Bremen and the Business Development Committee of Deputations for Economy and Science also agreed to the state financing ten percent of the costs from its basic budget. At the same time as passing its budget, the DLR Senate reached a decision supporting the establishment of a temporary institute. The DLR Senate is expected to reach a decision on the formal establishment of an institute in November 2006.
The Centre of Applied Space Technology and Microgravity (ZARM) at the University of Bremen, which employs around ten people, and the DLR office have the task of preparing the organisational aspects and content side for the establishment of a new DLR institute with the working title of the "Aerospace Institute Bremen".
Lord Mayor Jens Böhrnsen is delighted that initial preparations have been successful and says that "Establishment of the DLR institute is of long-term benefit to Bremen as an aerospace site and at the same time is evidence and recognition of the excellent reputation Bremen has for aerospace technology. I am sure the DLR's scientists will find that the 'City of Science 2005' offers them the very best working conditions and highly qualified cooperation partners. Bremen's business and scientific bodies will profit equally in the future from the new aerospace institute".
By setting up this institute, DLR is closing a scientific gap in the field of space systems for orbital systems and spacecraft. The expertise of Bremen's very own ZARM and DLR's expertise in aerospace systems will be incorporated in the new institute. ZARM's research remit is to be further developed and the centre will in the future work on research and development issues which both complement the work of the DLR institute and are of significance for the economic excellence of the university and business location. According to Prof. Dr Sigmar Wittig, "The new institute will not only allow DLR to close a scientific gap in Germany in the field of space systems but also in terms of business and science".
The first research and development objectives of the new institute will focus on satellite technology and spacecraft, such as a DLR compact research satellite, studies on the Orbital Return Vehicle (ORV), a joint top stage project and the international Rocket-borne EXperiments for University Students (REXUS). Other areas of its remit lie in systems technology for safety-related applications in space travel.
By working with EADS and OHB in Bremen, DLR has industrial partners who want to draw upon space systems research as initial research into the design of satellites and space transport systems right up to systems technology of relevance to safety. Attempts are already also underway to establish a close partnership with the University and College of Bremen to train system engineers and industrial engineers in aerospace-related disciplines.
Annual basic finance of up to € 17.8 million is planned for the new institute, ten percent of which is to be provided by the state of Bremen. Up to 100 scientists and engineers will work at the institute.
Ludger FröbelDeutsches Zentrum für Luft- und Raumfahrt (DLR)Programmdirektion Weltraum Tel.: +49 2203 601-2786Fax: +49 2203 601-2820E-Mail: Ludger.Froebel @ dlr.de
Gabriele Brünings Freie Hansestadt Bremen, Senatskanzlei Pressereferentin, Pressestelle des Senats Tel.: +49 421 361-4102 Fax: +49 421 361-6867 E-Mail: Gabriele.Bruenings @ sk.bremen.de


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The Bach Hour this week features two performances that highlight the full range of color and power of an organ in Altenburg, Germany. Built in 1739 by Heinrich Gottfried Trost for the Schloßkirche, or Castle Church, you can hear it in Gerhard Weinberger's performance of Bach's Passacaglia in C minor, BWV 582.
To hear the program, click on "Listen" above.
Also on the program is the Cantata No. 146, "Wir müssen durch viel Trübsal in das Reich Gottes eingehen," in a performance from conductor John Eliot Gardiner's Bach Cantata Pilgrimmage of 2000. The soloists in that performance include Brigitte Geller, soprano, William Towers, alto, Mark Padmore, tenor, Julian Clarkson, bass. They're joined by the Monteverdi Choir and English Baroque Soloists, with organist Silas John Standage. Visit Emmanuel Music for a translation.
When Trost completed the organ, Bach was invited to give one the first performances on it, and an account from several years later gives us an idea of what impact that event had (from Christoph Wolff's Johann Sebastian Bach: The Learned Musician):
For an organist, to yield to the singing congregation is better than to have it his way. Only a few are able to direct the congregation as old Bach could do, who, on the great organ at Altenburg, played the Credo hymn ["Wir glauben all an einem Gott"] in D minor, but for the second stanza lifted the congregation to E-flat minor, and for the third one even up to E minor. That, however, only a Bach and an organ in Altenburg could make happen. This, all of us, are not, and have not.
Of course, magnificent though they may look and sound, 18th century organs aren't necessarily easy to work with, as Silas John Standage writes about his performance with Gardiner in the program notes for that recording:
It was a real thrill to play this wonderful instrument, but certainly not without problems ... [J]ust before the performance began it started to cipher - sounding the note 'F' without any key being pressed down. The local organist was in the audience and he quickly set about trying to sort out the problem, but to no avail. Luckily the cipher did not affect the solo stops I had chosen, so after some moments of panic and confusion (during which John Eliot accidentally got locked into the organ loft) the performance went ahead. But it was an adrenaline-packed evening that I am not likely to forget.
(photos of Altenburg Castle Church and the Trost organ via ecv5 at Flickr under Creative Commons)
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Planck mission scientists have released the first half of the spacecraft's observations of the cosmic microwave background.
On March 21st, scientists with the European Space Agency's Planck mission announced their long-anticipated results from the spacecraft's first 15.5 months of mapping the cosmic microwave background.
The CMB is the radiation released about 380,000 years after the Big Bang, when the newborn universe cooled down enough to become transparent and let light travel free. We see this light today redshifted to microwave wavelengths, and slight temperature variations across its wallpaper-like "surface" reveal how matter was distributed at that early era. These variations allow cosmologists to test theories of what was happening in the universe in the tiniest instants after its birth, including the momentous but brief period of inflation.Planck's superbly precise new picture of the CMB (below) shows remarkable agreement with theoretical work, confirming that observations fit a simple cosmological model defined by just six numbers. (Take that in for a moment: the whole physical universe is described by six numbers. Even your phone number takes 10 digits in the U.S.)
The graph at right might not mean much to the average Joe, but it shows how much temperatures fluctuate in patches of various angular sizes all across the sky. Our inflationary model makes specific predictions about what this complex graph should look like. As you can see, Planck's observations (red dots) trace nigh perfectly the theory (green line). My colleague Alan freaked out when he saw the tight fit at the graph's far right — you don't appreciate the wonders of scientific progress until you have a 6-foot-3 man jumping up and down in your office.
But Planck also introduces a few surprises that need explaining.
By the Numbers
Planck launched on May 14, 2009, as successor to NASA's phenomenal Wilkinson Microwave Anisotropy Probe (WMAP), which mapped the CMB for nine years. WMAP observed in five frequency bands spanning 22 to 90 GHz, and its results form the bedrock of modern cosmology — helping nail down values such as the age of the universe (13.77 billion years) and how much of the matter in the universe is "dark" (about 84%) when combined with other measurements.
Planck's more precise numbers are slightly different from WMAP's. Planck covered nine bands from 30 to 857 GHz, and it's still working in the three lowest bands. The sweet spot for observing the CMB — where the galaxy's dusty, star-studded plane is the least bothersome — is from 70 to 150 GHz, making Planck an ideal follow-up to WMAP, Planck team member Bruce Partridge (Haverford College) said last month in Boston at the annual meeting of the American Association for the Advancement of Science.When combined with other types of measurements, the Planck data homes in on an age for the universe of 13.798 billion years, give or take a mere 0.037. And it pushes down what fraction of everything in the universe is dark energy, from 71.4% to 69.2%.
(These numbers may be slightly different from what you see reported elsewhere: the numbers are all consistent, it just depends what other information is added to the CMB data.)
One of the most notable new numbers is the value for the Hubble constant. The Hubble parameter, the ratio of a galaxy's recession velocity (redshift) to its distance, describes the rate at which the universe is expanding. Its value has changed over time; the present value is called the Hubble constant. Looking farther into the universe — earlier in time — measures a past value, explains Adam Riess (Johns Hopkins University), who shared the 2011 Nobel Prize in Physics for discovering that the universe's expansion is accelerating.
"There is always some extrapolation, since by definition we can't measure anything at exactly now," he says. "It's always the past."
Astronomers use various tactics to estimate the Hubble constant. In the "local" universe, meaning within tens to hundreds of millions of light-years, they use standard candles such as exploding white dwarfs or Cepheid variable stars. One candle promoted by researchers at Villanova University (my alma mater — Go 'Nova!) and also used by another team in a recent Nature paper is eclipsing binary stars, which allow observers to determine stars' real luminosity based on exact measurements of the stars' diameters and temperatures derived from their eclipses.
The current value for the Hubble constant based on local standard candles is 73.8 +/- 2.4 km/s per megaparsec. (All uncertainties quoted here are at the 68% confidence level.) That's slightly in tension with the value extrapolated from WMAP data. The CMB-based value depends on what other data are included and the cosmological model used; the value announced with WMAP's final 9-year results last December is 69.32 +/- 0.80. Astronomers have been waiting to see whether Planck would uphold this tension, because if the discrepancy is real it could imply something unexpected is afoot in physics.
Planck delivered. The Hubble constant derived from Planck's first 15.5 months of CMB observations (combined with other measurements) is 67.80 +/- 0.77.
"I think this is one of the most exciting parts of the data that came out," says Planck scientist Martin White (University of California, Berkeley, and Lawrence Berkeley National Lab). The fact that astronomers starting at opposite ends of cosmic history and moving toward the middle aren't getting quite the same value for this parameter is going to attract a lot of attention, he says. It could signal a problem with the models or funky new physics — or even that the amount of dark energy somehow increases with time in a given volume of space. "That's a pretty radical thing to propose, and so this is not something that we should take lightly," he cautions.
A Boatload, In Brief
Planck's results will be far-reaching — the project's scientists released more than two dozen papers today, and other researchers have already started downloading the raw data to work with. Some other noteworthy results in today's announcement are:
- No extra neutrinos. According to the Standard Model, there should be three and only three flavors of neutrinos, nearly massless particles speeding through the universe at ultrarelativistic speeds. Planck upholds that expectation.
- The universe isn't as uniform on the largest scales as expected. Previous work had hinted that the northern and southern hemispheres of the sky don't look as much like each other (statistically speaking) as they should, and that there's an anomalous cool spot in the CMB. (Anomalous in terms of shape, not temperature or overall size). Planck upholds these results. Furthermore, you get slightly different values for the fundamental six parameters when you fit each half of the sky separately. Assuming these effects are real, they may hint at unpredicted structure that's larger than our cosmic horizon and originating before inflation, even before the Big Bang.
- Similarly, the wiggly power spectrum graph (shown above) may have some problems over large patches of the sky. While the agreement between observation and theory is extraordinary at small angular scales, temperature fluctuations in the CMB at the largest scales don't behave as well. The team can't maneuver the graph to fit these points without losing the beautiful fit elsewhere.
- When inflation ended in the infant universe (about 10-35 second after the Big Bang, 10 nano-nano-nano-nanosecond), microscopic quantum fluctuations were slightly stronger on larger scales than smaller ones. These fluctuations served as the seeds of today's large-scale cosmic structure. Simple inflation predicts what this slight "tilt" of the fluctuations' size distribution should be. WMAP found this tilt, but Planck confirms its value to high accuracy. Score a big win for standard inflation.
- No polarization announcement yet. The real test of inflation, which cosmologists eagerly await, should come from specific polarization patterns in the CMB created by gravitational waves. Other theories of what caused the Big Bang, such as colliding "branes" in higher-dimensional space, predict that there will be no such polarization patterns. Looking for them was a prime reason why Planck was built. Mission scientists said that those polarization data are not cleaned up enough yet to be usable; we'll have to await analysis of a longer span of Planck's data. The next release of results is planned for 2014.
If you'd like the dirty details, you can find all the Planck papers online. The summary of results is in Section 9 of Paper I.
The European Space Agency has put up many excellent graphics and explanations. Start here and see the sidebar on the right.


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E. E. Cummings accomplished the rarest of balancing acts: He managed to be both a deeply committed experimentalist and a very popular poet.
You are here
Readings & Conversations Archive
April 22, 2008
April 23, 2008
In advance of our move to Battery Park City later this year, Poets House, the Battery Park City Neighbors' and Parents' Association and Battery Park City Seniors join forces to present a reading by
Who were the Beat Poets? Why are they ""beat"" and what does that mean?
April 26, 2008
Edna St. Vincent Millay, an elfin, red-haired diva of the sonnet, published some of the wisest, sexiest, and most feminist poetry of the 20th century.
May 01, 2008
Looking at Yeats, though the lens of his finished poems, he can seem a historic poet, almost cast in marble.
May 03, 2008
Coral Bracho and her translator Forrest Gander read from Firefly Under the Tongue: Selected Poems, Bracho's first full-length collection to appear in Engl
May 06, 2008
Part of Poetry Westchester!
May 07, 2008
Part of Poetry Westchester!
May 08, 2008
In the spirit of Norman Bluhm and Frank O'Hara's collaborative poem-paintings, currently on view in New York Cool, participants representing several generations of New York City poetry res
May 14, 2008
Raymond P Scheindlin draws upon the letters and poems of Judah Halevi (1085-1141), the pre-Modern Hebrew poet and philosopher, to recreate the last year of Halevi's life during whi


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Ailing retailer J.C. Penney (NYSE:JCP) may have posted a wider-than-expected loss late Thursday and disappointing sales, but Citi (NYSE:C) raised its price target and says it is "encouraged."
Continue Reading Below
The bank lifted its target on Penney to $20 from $15 and maintained its "neutral" rating, saying it is encouraged by the strategic plan outlined by newly-appointed CEO Mike Ullman, though it was careful to highlight the areas in need of improvement.
"JCP will bring back private label in a major way, invest in depth of inventory to ensure in-stock availability, and utilize a 'test and learn' approach for its marketing to find the best way to reconnect with core customers," Citi analyst Deborah Weinswig said in a note to clients.
Penney earlier this year re-hired former chief Mike Ullman to replace Ron Johnson as CEO after his "no sales" strategy failed to stem bleeding sales.
The upbeat note by Citi failed, however, to completely draw investors from bear territory, and Penney's shares fell 3% to $18.26 in recent trade.
Weinswig said "key priorities" for the Plano, Texas-based retailer are improving its online business and "fixing the JCP Rewards loyalty program." She also remained cautious on the retailer's operating margins.
The suffering department-store chain reported an adjusted loss of $1.31 a share, far below the 89-cent a share loss analysts had been predicting in a Thomson Reuters poll.
Revenue for the three-month period fell 16.4% to $2.64 billion from $3.15 billion, missing the Street's view of $2.74 billion, while cash on hand slumped year-over-year.
Penney last month revealed a $1.75 billion finance package from Goldman Sachs (NYSE:GS) that further paved the way for the ailing retailer to shore up its finances and move forward with its aggressive turnaround plan.
It also withdrew $850 million in cash from its $1.85 billion revolving credit facility in April, an effort to help stem a decline in sales that was blamed for a $1 billion loss last fiscal year.