United States v. Bueno, No. 09 CR 625 (HB), 2010 WL 2228570 (S.D.N.Y. June 3, 2010)
Bueno pled guilty to conspiracy to defraud the government with respect to claims, conspiracy to commit mail and wire fraud, and conspiracy to commit fraud with respect to identification papers based on her involvement in a tax refund fraud scheme orchestrated by her husband. The Court sentenced Bueno to a non-Guidelines sentence of 24 months imprisonment (advisory Guidelines range of 63 to 78 months). However, due to extraordinary circumstances relating to the care of her three minor children, the Court ordered Bueno's surrender date be adjourned for 36 months (that's right, three years) or until she is able to find an appropriate caregiver. This is the part of the sentence on which this post will focus.
Buene presented some genuinely unusual circumstances. As described by the Court:
Bueno has three children, ages eight, four, and two. The father of her first child was deported to the Dominican Republic in 2006, allegedly renounced his parental rights, and does not have any apparent contact with either Bueno or their child. Defendant had her other two children with her co-defendant Castillo, and all three children lived together with Bueno and Castillo at a residence in Pennsylvania prior to their arrest. Bueno's oldest child attends third grade, and her four year-old attends a preschool program. She is an active parent, and participates frequently in her children's school activities. In a letter to the Court, one of the teachers at Bueno's cosmetology school says she "is a hard worker and dedicated student ... is the kind of future professional who makes me enjoy my job" and that she "observed how great of a mom she is" because she always checks on her children at class breaks. Another letter, this one from an employee of the community service center, where Bueno apparently volunteers and attends "Parents Committee Meetings," wrote that "she has shown ... good leader[ship] and dedicated to her children's education." A letter from her child's preschool indicates she is an active parent and is even the president of their "Family Connection" group. Letters from friends and family are even more positive and provide universally glowing accounts of the care she provides her children.
As is perhaps obvious with the conviction and terms of imprisonment for both Castillo and Bueno, the three children will need some alternative caregiver to live with and provide for them. Unfortunately, there is no readily apparent individual available for that critical task. As just mentioned, the father of her first child was deported and has no contact. Bueno's father allegedly abused drugs and is otherwise estranged from Bueno and her children. Bueno's mother stated in a letter to the Court that she cannot care for the children because she works full-time at a slaughterhouse, and must leave the house at four-thirty in the morning with no regular return time. Bueno also has a twenty-two year old sister, but she likewise works full time, has her own child, and also stated in a letter that she is unable to care for Bueno's three children. It is the fate of these children and their future well-being that influenced the nature of my sentencing decision, and compels this opinion.
Based on the foregoing, the district court noted that "[w]hile family members are often affected when a relative is to be incarcerated, this case presented a fairly unique situation. The three children were in a stable, two-parent household, with an obviously caring mother, and they will now lose both parents to significant terms of imprisonment." Bueno, however, was neither a danger to the community nor a flight risk. Thus, the court sought to balance the need for an appropriate sentence with the need to ensure that innocent children are properly cared for and do not become wards of the state, "especially when a sentence can be fashioned that will avoid such a result." Thus, the Court adjourned Bueno's sentence for up to 36 months so that she could find appropriate child care for when she does go off to serve her sentence. She also has to report back to the Court every six months on her efforts to find that childcare.
This is an example of a very human side to sentencing -- a Court that went out of its way to both comply with its judicial obligations, but also to consider the collateral consequences of what it was required to do. It's fair and decent. And it has precedent. Another district court judge in the United States District Court for the Southern District of New York did essentially the same in United States v. Kloda, 133 F. Supp. 2d 345, 346 (S.D.N.Y. 2001).
This is a great case for any defense lawyer working with a defendant who has significant family issues, yet cannot get out from under a jail sentence.