District Court Protest Concerning Criminal History Category Adjustments And The Safety Valve

United States v. Feaster, No. 07-CR-874 (JBW), 2009 WL 2757157 (E.D.N.Y. Aug. 26, 2009)

The district court sentenced Feaster to 120 months (10 years) imprisonment (the mandatory minimum for his narcotics offense), but was clearly not happy about it.  Specifically, the district court was not happy with certain Second Circuit rulings that "any criminal history category adjustment" -- including adjustments for relatively minor offenses that overstate the seriousness of a defendant's criminal history -- "otherwise authorized may not be considered in the context of safety valve eligibility."  And it wasn't shy in letting its views be known:

The inequity flowing from this rather obscure-and substantively dubious-guidelines criterion for safety valve eligibility may, as the Commission's report states, be infrequent. But it is no less real and no less unfair for the few ill-fated defendants facing what can only be considered a “pothole on the road to justice.” It also violates the fundamental statutory requirement to consider in sentencing “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” . . . To take away years of a young man's life based on bureaucratic rigidity under the banner of “criminal justice” is an intolerable cruelty.

Non-Guidelines Sentence Based On Downward Adjustment Of Criminal History Score

United States v. Majano-Alvarez, No. 07-CR-839 (JBW), 2009 WL 2878447 (E.D.N.Y. Sept. 2, 2009)

Majano-Alvarez pled guilty to a single-count indictment for illegal re-entry.  He faced an advisory Guidelines range of 57 to 71 months, yet was sentenced to 30 months imprisonment -- a substantial non-Guidelines sentence.  Why?  Because his criminal history score over-represented the seriousness of his criminal past.  Specifically, "a minor conviction for unlawful concealment of a grocery item with a price tag of $5.65 caused an increase in the defendant's criminal history category from three to four; four criminal history points were found to over-represent his record.  He is a youn, intelligent, and capable of improving himself."

Why No Criminal History Downward Departure?

United States v. Ortiz-Portalatin, No. 08-CR-352 (JBW), 2009 WL 763355 (E.D.N.Y. March 13, 2009)

Because the standards are looser, I've always been a big fan of criminal history downward departures.  And it seems that Ortiz-Portalatin was a good candidate for earning one.  His criminal history category was IV, and the Court recognized at sentencing that he "has a medical condition that may have contributed to his prior convictions for crimes committed prior to its diagnosis."  Did defense counsel just not make the motion?

Post-Booker Criminal History/Career Offender

United States v. Hodges, No. 07-CR-706 (CPS), 2009 WL 366231 (E.D.N.Y. Feb. 12, 2009)

In a decision apparently written for purposes of justifying the non-Guidelines sentence that the Court intended to consider at sentencing, Judge Sifton draws some smart conclusions concerning the imposition of non-Guidelines sentences, particularly in the context of a defendant who qualifies as a career offender.

Hodges pled guilty to conspiracy to import an unspecified amount of heroin into the United States.  Based on his offense and conduct, the Court determined that Hodges' offense level was 29.  And based on his criminal history, Hodges qualified as a career offender -- in other words, criminal history category VI.  The Guidelines range of imprisonment indicated was therefore 151 to 188 months.

Having engaged in that Guidelines analysis, however, Judge Sifton set forth his Section 3553(a) analysis in order to impose a sentence sufficient, but not greater than necessary, as is required by Booker.  With regard to criminal history, the Court noted that the Sentencing Commission "recognized the potential harm of overstating a defendant's criminal history and thus exposing the defendant to punishment far in excess of what may be necessary to deter recidivism."  The Court acknowledged, though, that the Guidelines limit horizontal criminal history departures to one criminal history category for career offenders, even though some caselaw exists permitting additional departures under Section 5K2.0(b) of the Guidelines.  But all of that predates Booker.  As Judge Sifton found:

Clearly, the Sentencing Commission intended that the sentencing court exercise discretion in determining the appropriateness of categorizing a defendant as a career offender, an intention echoed by the Second Circuit, and expected that the sentencing couert would reduce a defendant's range of pubnishment if the career offender designation were misplaced.  In this case, defendant's label as a career offender is, in fact, misplaced.

More specifically, Judge Sifton noted that Hodges' is a drug addict who has suffered from multiple addictions throughout adolescence and much of his adult life, and that all of his criminal convictions arise from drug-related activity.  He served ten years for a drug-related offense, was released in 1996 and, for ten years, worked and supported his family without any problems with the law.  When his family situation deteriorated, however, he turned back to drugs and ultimately landed in Judge Sifton's courtroom.  with regard to that history, the Court found that fact that his prior convictions stemmed from his drug use "does not provide a sufficient basis for a departure under the Guidelines."  But, once again, Judge Sifton comes though, finding that "the Guideline prohibition against considering a defendant's drug addiction does not affect a sentencing court's authority to factor in remoteness of a defendant's convictions in determining whether he ought to be classified as a career offender."

There's a lot more in Hodges, and I encourage you to check it out (in particular, the description of Hodges background so far as it relates to several of the other Section 3553(a) factors).  But, in sum, it represents nice work by a judge as I believe the Supreme Court expected of judges after Booker.  And it represents nice work on behalf of the defense attorney, JaneAnne Murray (who also authors of New York Federal Criminal Practice Blog) in preparing what was obviously a comprehensive and persuasive sentencing package.

Downward Departure On Criminal History Category

United States v. Khemraj, No. 08-CR-332 (JBW), 2009 WL 365971 (E.D.N.Y. Feb. 5, 2009)

I've always thought that criminal history downward departures are under-utilized because of the lower standard required.  And to the credit of the attorneys and court in Khemraj, a downward departure from criminal history category V to criminal history category III was obtained.  Why?  Because of "the disparate nature of the past crimes and the fact that they were spread over time." 

Possession Of Marijuana Counts For Criminal History Calculations

United States v. Muse, No. 08-0831-cr, 08-0967-cr (2d Cir. Feb. 20, 2009) (found here)

Muse challenged (among other things) the district court's calculation of his criminal history on the ground that the court erroneously added a criminal history point for his prior conviction for unlawful possession of marijuana.  Specifically, he argued that that offense should not count because it is "more similar to a minor traffic infraction or public intoxication."  The Second Circuit rejected the argument, noting that drug possession is not one of the offenses excluded from U.S.S.G. § 4A1.2(c)(2).  Moreover, while the Second Circuit noted that other "similar offenses" are excluded, "we conclude that marijuana possession is not a 'similar' offense.  The elements of unlawful drug possession are not similar to a minor traffic infraction, or any other excepted offense."

Unfortunately, the details of Muse's prior conviction for marijuana possession are not provided.  But it's worth noting that possession of marijuana (particularly in the context of personal use) frequently resolves with an ACD (and adjournment in contemplation of dismissal) when charges are brought in New York state court.  Likewise, states such as Massachusetts have recently done what the Second Circuit rejects -- equating possession of small amounts of marijuana with traffic offenses.

Attempted Burglary In The Third Degree (A Class E Felony) Is A Crime Of Violence Under The Guidelines?

United States v. Hurell, Docket Nos. 06-5653-cr, 06-5718-cr, 07-0116-cr (2d Cir. Jan. 28, 2009) (found here)

The Government appealed three judgments, each of which held that a prior conviction for burglary in the third degree under New York law and/or a prior conviction for attempted burglary in the third degree were not convictions for "crimes of violence" as defined by Section 4B1.2(a) of the Guidelines.  Relying on United States v. Brown, 514 F.3d 256 (2d Cir. 2008), in which the Second Circuit held that burglary in the third degree was a crime of violence for purposes of the Guidelines, the Second Circuit found for the Government with regard to its appeal on the actual burglary convictions.  The Second Circuit, however, went further, holding that attempted burglary is also a crime of violence under the Guidelines because Application Note 1 to Section 4B1.2 of the Guidelines provides that the term "crime of violence" "include[s] the offense[] of . . . attempting to commit" a "crime of violence."

Significantly, it bears noting that Attempted Burglary in the Third Degree is, under New York law, a Class E felony.  That's right, folks, it's the lowest level felony under New York law -- and a felony for which jail time is not required.  So, why should it be considered a crime of violence that increases an offender's exposure under the Guidelines?

Exactly What Causes An Upward Departure In Criminal History Category?

United States v. White, Docket No. 08-1180-cr., 2009 WL 50497 (2d Cir. Jan. 9, 2009)

Q:  Exactly what causes an upward departure in criminal history category?

A.  A whole lot of criminal history.  For White, it involved convictions for twenty-one offenses, six of which were felonies and many of which involved violence.  It also included several other offenses (some felonies, others misdemeanors) that were not included in the calculation of his criminal history.  As the district court put it, "virtually since the eighties, about every other year . . . Mr. White gets convicted of something."

Net-net, though, the upward departure only added 6 months to the advisory Guidelines range that would otherwise have been applicable, to which White had no objection.

A Non-Guidelines Imposed Without Calculation Of Advisory Guidelines Range -- A Possible Problem

United States v. Posr, No. 04 Crim. 1033 (LAK), 2007 WL 1280631 (S.D.N.Y. April 30, 2007)

Posr was sentenced to 344 days imprisonment.  Two aspects of the advisory Guidelines computation were contested at the sentencing hearing: (1) the appropriate Guidelines section to use for calculation of the advisory Guidelines range; and (2) the criminal history category.  The court (Judge Kaplan) ruled that both questions were "immaterial in light of [the court's] view as to the appropriate sentence, which was 344 days."

Surely this analysis does not meet the requirements of United States v. Crosby, which requires district courts to properly calculate the advisory Guidelines range and then consider whether to impose a Guidelines or non-Guidelines sentence.  Moreover and unless Judge Kaplan stated his consideration of Section 3553(a) on the record at the sentencing hearing, this sentence has problems in addition to those concerning Crosby compliance.  It bears noting, however, that the sentence does appear consistent with the Second Circuit's directive in United States v. Jones (discussed here) that judges are "not prohibited from including" in consideration of Section 3553(a) "the judge's own sense of what is a fair and just sentence."

When 18 U.S.C. 3553(a) Conflicts With Career Offender Classification

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.)