United States v. Kon, No. 04 CR., 271-03 (RWS), 2006 Wl 2108555 (S.D.N.Y. Nov. 2, 2006)
United States v. Cheah, No. 04 CR., 271-05 (RWS), 2006 WL 3208560 (S.D.N.Y. Nov. 2, 2006)
Kon and Cheah pled guilty to possession with intent to distribute Ecstasy, and had advisory Guidelines ranges of 30 to 37 months and 87 to 108 months, respectively. Judge Sweet, however, sentenced Kon and Cheah to time served (one day for Kon and an unknown amount of time for Cheah).
For Kon (whose advisory Guidelines range was 30 to 37 months), Judge Sweet engaged in an extensive discussion of the reasons for impostion of a non-Guidelines/non-custodial sentence. Specifically, Judge Sweet imposed a sentence of time served largely based on Kon's extraordinary family circumstances. Kon was the sole caretaker of her two year-old daughter and had no immediate family in the United States upon whom she can rely. Furthermore, Kon's estranged husband (also a co-defendant) and his family showed no willingness to provide assistance (financially or otherwise). Interestingly, Judge Sweet did not depart downward based on extraordinary family circumstances (although he noted that he could have). Rather, he imposed a non-Guidelines sentence based on that factor -- an outcome that the Second Circuit specifically approved of in United States v. Selioustky, 409 F. 3d 114 (2d Cir. 2005). In addition, Judge Sweet found that a non-Guidelines sentence was appropriate because it would adequately reflect the seriousness of the offense and would provide adequate general and specific deterrence. Why? Because Kon had no criminal history and had never previously been incarcerated. (Query: Wouldn't this apply to any defendant appearing for sentencing on a first offense?) Finally, Judge Sweet noted that "Kon would not have been involved in the offense conduct but for her husband's marital hold over her. Now that the couple is separated, the marital subservience that Kon perceived was required of her should no longer be a controlling factor in her conduct." (In other words, her husband made her do it.)
By contrast, for Cheah (whose advisory Guidelines range was a longer 87 to 108 months), Judge Sweet engaged in a rather cursory discussion of the reasons for impostion of a non-Guidelines/non-custodial sentence. Indeed, Judge Sweet essentially listed the Section 3553(a) factors and then declared that a non-Guidelines/non-custodial sentence was appropriate based on those factors -- notably without any discussion applying the specific facts associated with Cheah to those factors. Somewhat unusual. Could unwarranted sentence disparities between co-defendants have played a role?