United States v. Vasquez, No. 09-CR-259 (JG), 2010 WL 1257359 (E.D.N.Y. March 30, 2010)
When people think about miscarriages of justice, they generally think big, especially in this era of DNA exonerations, in which wholly innocent people have been released from jail in significant numbers after long periods in prison. As disturbing as those case are, the truth is that most of the time miscarriages of justice occur in small doses, in cases involving guilty defendants. This makes them easier to overlook. But when they are multiplied by the thousands of cases in which they occur, they have a greater impact on our criminal justice system than the cases you read about in the newspapers or hear about on 60 minutes. This case is a good example.
Wow. That's a helluva an opening paragraph for a sentencing opinion. Let's delve deeply into the case to see what precipitated the Judge Gleeson to write it. As the reader will see, Judge Gleeson has some strong opinions concerning mandatory minimum sentences and the means by which they cast too broad a net. And he has a few choice words for the prosecutors who use them.
Background Concerning the Defendant -- Vasquez, age 36 was born in Puerto Rico, the youngest of 12 children. He
had no relationship with his father, who died when he was four or five years
old. He did, however, have a relationship with one of his many older brothers
that was especially damaging. From the age of seven, Vasquez was sexually abused
repeatedly by this brother, and as a result he struggled with depression
his entire life.
Vasquez dropped out of high school in the ninth grade. By his early twenties, he had acquired some expertise in fixing cars and trucks. He had also acquired a cocaine addiction. In approximately 1994, he commenced a turbulent ten-year relationship with Ingrid Melendez, with whom he had three children. During that period, he suffered from multiple bouts of depression. When the relationship ended in 2004 due to Melendez's infidelity, Vasquez attempted suicide. He spent two months in Bellevue Hospital, where he received medications for depression and bi-polar disorder.
Other than the drug trafficking that got him convicted in this case (described below) Vasquez's entire criminal history stems from his relationship with Melendez. In December of 2004, after his release from Bellevue, she refused to let him see their children. He reacted by menacing her with a knife in front of the children. Though he was given a conditional discharge, he failed to abide by the conditions; six months later he violated an order of protection by threatening to kill Melendez. This conduct got Vasquez 60 days in jail on the earlier menacing case and 60 more for contemptuously violating the order of protection. A year later, in June of 2006, Vasquez once again showed up at Melendez's home without permission. He was convicted of harassment and given another conditional discharge.
In 2005, Vasquez met Maritza Caraballo, a bank teller. They lived together and enjoyed a stable relationship until March 25, 2009, when Vasquez was arrested in this case. They have a three-year-old daughter, and Carabello's eight-year-old daughter from a prior relationship also lives with them. Vasquez worked continuously during that period, first as an auto mechanic, then, beginning in 2007, as a construction supervisor. Vasquez and Caraballo are engaged to be married in June.
Melendez continued to deny Vasquez access to their three children. Caraballo reports that this produced an extremely stressful situation for Vasquez, who was complying with his court-ordered child support obligations to those children. Though Vasquez had stopped using drugs after he met and began living with Caraballo, under the mounting stress of his situation with Melendez and their children, he finally relapsed in 2008, when he began using cocaine again. That development laid the groundwork for his involvement in his offense of conviction.
To support his expensive cocaine
habit, Vasquez went to work in approximately September of 2008 for one of his
older brothers, Jose Angel Vasquez, a drug dealer and his co-defendant in this
case. Unfortunately for both of them, the government was intercepting the
telephone calls of members of Jose Vasquez's business. Those calls identified
the defendant as a minor participant in his brother's organization. More
specifically, "[t]he government's investigation revealed that, for the
most part, the defendant was a street-level distributor for his brother's
organization, with only occasional and minor participation in the
organization's broader activities." In the six to eight months
he was involved in the business to support his habit, Vasquez personally assisted
in the distribution of 300 grams of heroin. He was aware of the distribution of
350 additional grams by others, so he was responsible under the Guidelines for 650 grams.
After his arrest, Vasquez tried to cooperate with the government. He provided information about two individuals, but it could not be corroborated. As the prosecutor stated when Vasquez first appeared for sentencing on December 29, if he "had more information, he would have received a" substantial assistance motion.
The Charge -- According to Judge Gleeson, the Government basically overcharged Vasquez. Specifically:
The government had it within its power to charge Vasquez with a standard drug trafficking charge, which carries a maximum sentence of 20 years. Instead, it included him in a conspiracy charge with his brother and three others and cited to a sentence-enhancing provision that carries a maximum of life in prison and a mandatory minimum of ten years upon conviction. During plea negotiations, the government refused to drop that charge unless Vasquez pled guilty to a lesser-included sentencing enhancement that carried a maximum of 40 years and a mandatory minimum of five years.
The Effect of the Drug Sentencing Laws on Vasquez -- According to Judge Gleeson, the drug laws (on which he provides excellent background) have a dramatic impact on Vasquez. As described by the Court:
The second result of this regime is placed in clear relief by this case. I f they want to, prosecutors can decide that street-level defendants like Vasquez--the low-hanging fruit for law enforcement--must receive the harsh sentences that Congress intended for kingpins and managers, no matter how many other factors weigh in favor of less severe sentences. The government concedes, as it must, that Vasquez played a minor role in his brother's modest drug operation, not the mid-level managerial role the five-year mandatory sentence was enacted to punish. Indeed, the government argues that Vasquez's guidelines computation includes a two-level downward adjustment because of his mitigating role in the offense. See U.S. Sentencing Guidelines Manual 3B1.2(5). Yet, by the simple act of invoking the sentence-enhancing provision of the statute, the government has dictated the imposition of the severe sentence intended only for those with an aggravating role.
When the case was first called for sentencing in December, I pointed out the obvious: the five-year mandatory sentence in this case would be unjust. The prosecutor agreed, and welcomed my direction that she go back to the United States Attorney with a request from the Court that he withdraw the aspect of the charge that required the imposition of the five-year minimum. She asked for a couple of months to make the case that the sentence enhancement should be abandoned.
On March 5, 2010, the prosecutor appeared again, shadowed by a supervisor. She reported that the United States Attorney would not relent. She offered two reasons. The first was that I might have failed to focus on the fact that Vasquez had "received a bump down," meaning he was allowed to plead to the five-year mandatory minimum rather than to the ten-year mandatory minimum that he, his brother, and three other co-defendants were originally charged with. I think this means that Vasquez should be grateful the government did not insist on a ten-year minimum sentence based on additional quantities of cocaine it concedes he knew nothing about and could not be held responsible for under the guidelines, presumably on the theory that other members of the same conspiracy dealt those quantities. I suppose there is some consolation in the fact that the government did not pursue that absurd course, which would have produced an even more egregious injustice if Vasquez had been convicted. But that hardly explains, let alone justifies, the government's insistence on the injustice at hand.
Second, the prosecutor suggested that I had failed to "focus" on the seriousness of Vasquez's crimes against his ex-wife, Melendez. Implicit in that assertion is the contention that even if Vasquez does not deserve the five-year minimum because he was not a mid-level manager of a drug enterprise, he deserves it because of his past crimes. This rings especially hollow. Those past crimes have been front and center at all times, not only because they render Vasquez ineligible for safety valve relief from the minimum sentence, but also because there was litigation over how many criminal history points they warranted. When Vasquez first appeared for sentence on December 29, both of these subjects were discussed. And when the prosecutor took the position that the criminal history points produced by Vasquez's past crimes overstated the gravity of those crimes, warranting a downward departure, it did not appear she had failed to focus on their seriousness either. In any event, I certainly had not.
I recognize that the United States Attorney is not required to explain to judges the reasons for decisions like this one, and for that reason I did not ask for them. But the ones that were volunteered do not withstand the slightest scrutiny.
The Sentence and the Explanation for the Sentence -- Judge Gleeson was none-too-pleased with having to impose a 5 year mandatory minimum sentence. Indeed, he viewed it as one of those "small injustices" that he described in the opening paragraph of his sentencing opinion. As the Court explained (I've added some paragraph breaks for ease of reading):
As a result of the decision to insist on the five-year mandatory minimum, there was no judging going on at Vasquez's sentencing. Though in theory I could have considered a sentence of greater than 60 months, even the prosecutor recognized how ludicrous that would be, and asked for a 60-month sentence. But the prosecutor's refusal to permit consideration of a lesser sentence ended the matter, rendering irrelevant all the other factors that should have been considered to arrive at a just sentence.
The defendant's difficult childhood and lifelong struggle with mental illness were out of bounds, as were the circumstances giving rise to his minor role in his brother's drug business (i.e., it was to support an addiction, not to become a narcotics entrepreneur with a proprietary stake in the drugs), the fact that he tried to cooperate but was not involved enough in the drug trade to be of assistance, the effect of his incarceration on his three-year-old daughter and the eight-year-old child of Caraballo he is raising as his own, the fact that he has been a good father to them for nearly five years, the fact that his prior convictions all arose out of his ex-wife's refusal to permit him to see their three children.
Sentencing is not a science, and I don't pretend to be better than anyone else at assimilating these and the numerous other factors, both aggravating and mitigating, that legitimately bear on an appropriate sentence. But I try my best to do just that, and by doing so to do justice for the individual before me and for our community. In this case, those efforts would have resulted in a prison term of 24 months, followed by a five-year period of supervision with conditions including both other forms of punishment (home detention and community service) and efforts to assist Vasquez with the mental health, substance abuse, and anger management problems that have plagued him, in some respects for his entire life. If he had failed to avail himself of those efforts, or if, for example, he intentionally had contact with Melendez without the prior authorization of his supervising probation officer, he would have gone back to jail on this case.
The mandatory minimum sentence in this case supplanted any effort to do justice, leaving in its place the heavy wooden club that was explicitly meant only for mid-level managers of drug operations. The absence of fit between the crude method of punishment and the particular set of circumstances before me was conspicuous; when I imposed sentence on the weak and sobbing Vasquez on March 5, everyone present, including the prosecutor, could feel the injustice.
Conclusion -- Judge Gleeson's words say it all:
In sum, though I am obligated by law to provide a statement of "reasons" for each sentence I impose, in this case there was but one: I was forced by a law that should not have been invoked to impose a five-year prison term.