United States v. Trochtchenkova, Case No. 05 Cr. 503 (SAS) (Oct. 11, 2006)
As reported to me by Pat Pileggi, Esq. (firstname.lastname@example.org), Judge Scheindlin sentenced Trochtchenkova to a year and day, notwithstanding an advisory Guidelines range calculated by the Government of 51-63 months and an advisory Guidelines range calculated by Probation of 30-37 months.
How did Judge Scheindlin get to that sentence? Well, initially Judge Scheindlin agreed with Probation on the advisory Guidelines calculation (notwithstanding Trochtchenkova's objection to a two offense level increase for use of sophisticated means). Trochtchenkova moved for downward departures based on extraordinary family circumstances, diminished capacity and extraordinary rehabilitation, and also sought a non-Guidelines sentence based on the factors set forth in 18 U.S.C. § 3553(a)(6). Judge Scheindlin rejected all of the grounds for downward departure except for the extraordinary family circumstances -- a circumstance that Judge Scheindlin found called for a three offense level departure (resulting in an advisory Guidelines range of 21-27 months).
Specifically, Judge Scheindlin found that Trochtchenkova had no family who resided in the United States and that neither of the fathers of Trochtchenkova's two children (ages 7 and 15) were available for child care (one is incarerated and one has no fixed address):
I find that this case actually does qualify for a downward departure based on extraordinary family circumstances. This defendant is a single mother of two children by two different men, neither of whom is supporting the children. She is an immigrant from Russia who does not have any family here in the United States. Most of her relatives are in Russia. The father of the younger child is himself incarcerated based on his involvement in this case. More importantly, he has threatened his wife physically and emotionally, who is the mother of the 7 year old, and has also threatened to kipnap his daughter and taker her to Egypt where she will be permanently separated from her mother. Depending on the length of her incarceration, the children would need a permanent placement with a responsibile adult either here with friends or in foster care or in Russia with relatives.
Both alternatives are grim prospects for the children. While it is an ordinary event for a defendant parent to be separated from his or her children, what is extraordinary here is the absence of any reasonable option for their care during the sole parent's absence. The potential damage to these children if they are separated from their parent for a lengthy period of time is probably incalculable. While children are resilient, this situation is unprecedented in my experience. In my years of sentencing, there is almost always a parent or other family member who can take over the child rearing during the parent's absence. For this reason, I conclude that a downward departure based on extraordinary family circumstances is warranted.
In addition to the foregoing downward departure, Judge Scheindlin also found that a non-Guidelines sentence was appropriate (thereby accounting for the year and a day sentence flowing from the 21-27 month advisory Guidelines range). Specifically, Judge Scheindlin found (among other things) that: (a) the crime of prostitution was non-violent (even going so far as to note that the prostitutes themselves were not actually victimized, despite Congressional findings to the contrary); (b), Trochtchenkova had no criminal history; (c) Trochtchenkova had a difficult personal life (including the fact that her father murdered her mother in her presence when she was seven years old); (d) Trochtchenkova had been married to two separate abusive men; (e) Trochtchenkova suffered from post-traumatic stress syndrome and battered woman's syndrome, and may be suicidal if separated from her children; and (f) Trochtchenkova has always worked, has a college degree and is now trying to work in the real estate industry.
In light of all of the foregoing, it is somewhat surprising that Judge Scheindlin imposed a custodial sentence at all. Indeed, one could reasonably have expected a non-custodial sentence (as had been requested).
Nevertheless, defense counsel did a superb job of employing all of the tools available today in moving the sentencing court significantly away from the Guidelines -- to wit, moving for downward departures and seeking a non-Guidelines sentence on all available grounds. Nice job Pat!
NOTE TO READERS: Have you had an interesting or notable sentencing recently? If so, send me an e-mail at email@example.com -- include details on the case and the sentencing, including the sentencing memorandum and sentencing transcript (if available).