United States v. Rivera, No. 04 CR. 959-01 (RWS), 2006 WL 3432062 (S.D.N.Y. Nov. 29, 2006)
Rivera pled guilty to one count of conspiring to distribute and possess with intent to distribute heroin. Based on the amount of heroin involved, the court calculated Rivera's offense level to be 29. And, based on Rivera's eight prior, non-federal criminal convictions over the prior 20 years (for offenses ranging from disorderly conduct to attempted robbery to criminal sale of a controlled substance) that resulted in a total of 10 criminal history points, the court calculated Rivera's Criminal History Category to be V. In addition, the court was required to designate Rivera as a "career offender" pursuant to U.S.S.G. 4B1.1(a), thereby elevating his Criminal History Category to VI. And, based on that offense level of 29 and Criminal History Category of VI, the court determined that Rivera's advisory Guidelines range was 151 to 186 months imprisonment.
In considering 18 U.S.C. 3553(a), however, the court determined that a non-Guidelines sentence of 60 months imprisonment was appropriate because "the sentence resulting from Rivera's designation as a career offender is 'greater than necessary' to achieve the purposes of 18 U.S.C. 3553(a)(2)." Initially, the court noted the significance of the disparity of the sentences imposed for his prior offenses (none of which was longer than 39 months) and the sentence dictated by his now career offender status (12.5 years). Furthermore, the court noted that Rivera's Guidelines range would have been 37 to 46 months but for his career offender status. Thus and based on the "goal" of career offender classification -- to wit, "to achieve a deterrent effect and to address adequately the concerns regarding recidivism that are reflected in that classification scheme" -- the court concluded that because "Rivera's prior imprisonment has not exceeded approximately 39 months at any one time, any term of imprisonment significantly greater than this amount will achieve the deterrent effect underlying the career offender designation." And, because a 60 month sentence was significantly greater than his prior longest 39 month sentence, the court concluded that 60 months was sufficient to accomplish the sentencing goals of 18 U.S.C. 3553(a), notwithstanding Rivera's career offender classification.
(It also bears noting that the district court also imposed the non-Guidelines sentence that it did based on the sentence imposed on Rivera's co-defendant (approximately 22 months). Judge Sweet continues to be a strong proponent of co-defendant disparity as a basis for a non-Guidelines sentence.)