What Judges Really Think

United States v. Fishman, 631 F. Supp. 2d 399 (S.D.N.Y. 2009)

Fishman was a partner at law firm Latham & Watkins, and pled guilty to a multi-year scheme in which committed dozens if not hundreds of acts of dishonesty and fraud -- an offense made worse by the fact that he was an attorney and therefore an officer of the Court. 

But Fishman had some things going for him -- significant charitable and civic activities, particularly his work at the Sinai Schools.  And based on that work, Fishman received a sentence of 15 months imprisonment, even though his advisory Guidelines range was 27 to 33 months.

What's most interesting in the case, though, is views expressed by the Court when confronting offenders who present so much positive information in such a persuasive manner.  Indeed, the Court's detailed explanation shines a light on what judges might really think and, thus, gives guidance to defense lawyers in preparing sentencing memoranda.  It's worth reading in its entirety.  Here are some excerpts:

As a point of departure, the Court notes that Fishman's presentation, though stressing points that argue for uniqueness, distinction and individual consideration, in fact is not uncommon. The Court has heard much of the argument in echoes from similar pleas for mercy frequently urged in this courthouse, indeed in courtrooms across the country. In particular, Fishman's argument falls into a pattern advanced by a subset of the white collar criminal. This category encompasses a select class: distinguished, reputable, highly esteemed model citizens such as Fishman. The list of their achievements and virtues is long and impressive. At home, they are good family men and women, caring spouses, loving parents, loyal and reliable to friends. At work, they are looked up to as outstanding professionals and business partners. To their community's charities and public causes they are generous patrons and sponsors. And as worshipers they are devout, often rising as leaders of the congregation.

Yet, for all of their outward rectitude, these otherwise good people suffer a fatal flaw: they sometimes lead a double life. Somewhere at the core, in a distorted dimension of the soul, the public image they present is as false as the lies they tell to sustain the appearances of an exemplary life. And somehow, for reasons that always defy reason, they fall into crime, doing wrongful deeds that seem aberrational, selfish and greedy acts that, when caught, they claim are entirely out of character with their otherwise law-abiding lives.

Typically, these offenders appear at their sentencing well-represented and well-prepared, offering ample reasons why the Court should exercise exceptional discretion and show maximum leniency. A key aspect of the evidence proffered in mitigation consists of medical records and psychological evaluations attesting that the defendant's criminal conduct, so at odds with an upright character, was driven by some recently diagnosed mental disorder, or ungovernable impulse, other unknown inner or outer demon he could not conquer that made him do it. An outpouring of sympathy and support from relatives, friends, business colleagues, community leaders, and even some of the victims, accompanies the presentation. The beneficiaries of the defendant's charitable work, in some cases intensified since his arrest, testify about his devotion of good will and donation of resources, and underscore the loss they and the larger community would suffer if deprived of the defendant's invaluable contributions to their public services. And of course, the defendant rises in the courtroom to convey profound, personal apologies for all the sorrow he has caused to all the people with whom he broke faith and hurt and betrayed and shamed.

As it ends, the presentation comes to several conclusions it urges the Court to adopt: that the defendant has already shown full rehabilitation and earned redemption; that there is absolutely no likelihood of recidivism from this defendant and thus no threat of future harm to society; that no further need exists to punish the defendant because he has been wracked long enough by shame, by ruin of his family and personal life, by loss of his primary means to earn a livelihood. The purposes of sentencing thus having been satisfied, ergo: a sentence of any incarceration would serve little or no useful purpose; probation would suffice.

Let me stress at this point that the Court is not unmindful or unsympathetic to these points. There is much in Fishman's plea to commend the compassion it seeks to evoke. But the argument goes only so far. Compelling as it sounds on the surface, it fails in some essential ways. Fundamentally, it is flawed by what it omits. In particular, it makes no account of several other circumstances courts are instructed to weigh adequately in ordering a fitting sentence: to reflect the severity of the crime; to promote general respect for the law; to avoid unwarranted sentencing disparities; and to consider the impact of the crime not only on its immediate victims, but on the larger social order. These principles are interrelated. They share vital links with some basic legal and philosophical concepts, ideals emblematic of the law profoundly significant for sentencing to ensure a right and just result for all concerned: fairness, balance, proportionality, and equality of treatment under law for relatively similar persons and circumstances. In sentencing, these principles seek to ensure that judgments overall fairly align so as to achieve, like planets in orbit, a special form of equilibrium, a proper balance in the delicate symmetry of justice.

A Reminder Of The Power Of Cooperation

United States v. Kidd, No. 07-CR-798 (JBW), 2009 WL 2226486 (E.D.N.Y. June 5, 2009)

Kidd pled guilty to a heroin offense, for which she faced an advisory Guidelines range of imprisonment of between 41 and 51 months.  But she cooperated with the Government "at some risk to herself," and therefore earned a non-Guidelines sentence of five years probation.  A reminder of the power of cooperation.

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?

The Power Of Cooperation

United States v. Baum, No. 04-CR-508 (JBW), 2007 WL 3274894 (E.D.N.Y. Oct. 30, 2007)

Baum was convicted of very serious weapons and narcotics offenses, and had a long criminal history.  According to the district court, the minimum statutory sentence Baum could receive was 10 years for one offense and a consecutive term of 7 years for another offense, for a total of 17 years or 204 months.  But the court sentenced him to a mere one day of incarceration.

Wow.  Now, granted, Baum had already been incarcerated for 4 years.  But his cooperation was truly extraordinary.  He provided information concerning six murders, including those of his two brothers.  He freely admitted to the facts concerning one of his offenses of conviction, even though the Government had no prior knowledge or information concerning those activities.  And he was incarcerated for those 4 years in the same correctional facility as his brothers' killers, where he himself was under constant threat.

Defense attorneys likely will not often face such unique circumstances.  But Baum is important to the extent it can be relied on as a basis for a quite significant departure for quite significant cooperation.  In other words, defendants can have at least some hope that cooperation will result in a significantly reduced sentence, even if the Guidelines starting point is quite high.

Second Circuit Reverses Large Downward Departure (And Makes New Law?)

United States v. Canova, Docket No. 05-6439-cr, 2007 WL 1321286 (2d Cir. May 8, 2007) (found here)

In sum, Canova "concerns the reasonableness of a downward departure from a Sentencing Guidelines calculation and the reasonableness of the resulting sentence."  In a word, the Second Circuit reversed the downward depature and remanded the case for resentencing.  As always, however, the devil is in the details.

Canova was convicted of a series of fraud offenses.  At his original senetencing (this, after all, was his second appeal), the district court determined to impose a Guidelines sentence.  The PSR calculated an advisory Guidelines range of 57 to 71 months imprisonment based largely on a loss of $5,000,000.  The district court, however, conducted its own factual and Guidelines analysis, and determined an advisory Guidelines offense level of 8 (0-6 months imprisonment) based on an absence of loss.  And then the district court departed downward by 6 offense levels based on Sanova's "extraordinary record of civil and public service."  In the end, the district court imposed a sentence of one year probation.

The Government -- as would be expected -- appealed Canova's sentence, challenging the district court's loss calculation and charitable service departure.  (The Government also challenged the district court's denial of an obstruction of justice enhancement.)  The Second Circuit reversed the district court, finding the sentence to have been erroneous because of its failure to consider loss, and stated that the district court could consider the extent of its "charitable services" departure based on the higher advisory Guidelines range dictated by proper consideration of loss. 

At resentencing, the district court calculated the advisory Guidelines offense level using a loss figure of $5,000,000.  But -- in what can only be described as a single-finger salute to the Second Circuit -- it then departed by 15 offense levels on the ground that the monetary loss overstated the seriousness of the offense and bceause "the previous departure for public service [did] not fully reflect the Court's sentencing objectives in light of the newly imposed loss enhancement."  As the district court explained: "[T]he higher guideline range calls for a more extended downward depature for the defendant's service to the country and community."  After applying the 15 level departure, the district court -- no surprise here -- arrived at the same offense level and imposed the same one year probationary sentence. 

The Government appealed.  Again.  And the Second Circuit reversed.  Again.  Why?  Because the sentence was both procedurally and substantively unreasonable.

Procedural Reasonableness -- The Second Circuit found that the probationary sentence was procedurally unreasonable for three reasons.  First, the Second Circuit found that the 15 level departure was procedurally unreasonable because the "District Judge exceeded his discretion in deciding that the $5 million loss overstated the seriousness of the offense."  Specifically, the Second Circuit found (among other things) that the the district court considered only actual harm and failed to consider intended loss.  Second, the Second Circuit found that the district court's reliance on the victim's conduct as a gorund for departure was procedurally unreasonable because it is not a permissible ground for a departure.  Third, the Second Circuit found that the sentence was procedurally unreasonable because it relied on another party's restitution payment as a basis for depature (not a terribly important point for the decision and therefore just noted here).

Substantive Unreasonableness -- Making what seems like new law, the Second Circuit found that:

In many cases involving a departure, it would be appropriate to consider separately the reasonableness of the extent of the depature and the reasonableness of the resulting sentence.  In this case, however, where the departure resulted in a sentence of no imprisonment at all, the considerations that bear on the reasonableness of the extent of the departure apply equally to the reasonableness of the sentence, and at this point we need only consider the reasonableness of the extent of the departure.

Hmmm...  If procedural reasonableness involves consideration of error in a Guidelines calculation (inclusive of any Guideline departures that are necessarily part of the Guidelines calculation) and substantive reasonabless involves the actual reasonableness of the ultimate sentence imposed, what is the Second Circuit doing in considering the reasonableness of the extent of the depature when considering whether or not the sentence is substantively reasonable?  Why is the Second Circuit blurring the lines between what it has clearly set forth in numerous other opinions as the distinctions between procedural and substantive reasonableness?  This question in this case is particularly peculiar since the Second Circuit's decision on the first appeal in this matter specifically stated that the district court could consider the extent of its "charitable services" departure based on the higher advisory Guidelines range dictated by proper consideration of loss. 

But that's not all.  The Second Circuit went on to consider the "method for assessing the extent of a departure in order to determine its reasonableness."  The Second Circuit considered two "plausible" methods for that assessment.  First, an absolute assessment, which "would gage the extent of the departure, measured in levels, without regard to the starting point from which the departure was made."  Second, a relative assessment, which "would gage the extent of the departure either by the increase or decrease in the resulting prison time . . . or by the percentage of increase or decrease of either prison time or levels."  Although the Second Circuit declined to expressly adopt either measure, it expressed a preference for one or more of the relative assessment methods because "[w]henever the extent of a decrease (or increase) is assessed for reasonableness, it seems evident that the starting point should be considered."

And that's not even all.  The Second Circuit went on to state that "[t]randscending the numbers in this case, however, is the blunt fact that the effect of the departure and resulting sentence was to treat Canova as though he had intended to cause no loss at all."  Even if it matched the first sentence (as the Second Circuit noted), so what?  Isn't it at least possible that a departure under the Guidelines could completely counter an increase in an advisory Guidelines offense level due to some other factor, such as loss?  And what business does the Second Circuit have in second-guessing the district court's determination of how much impact a ground for a downward depature should have?

As Fielding Melish (Woody Allen's character in Bananas) said: "I object, your honor! This trial is a travesty. It's a travesty of a mockery of a sham of a mockery of a travesty of two mockeries of a sham."  Well, maybe that's going too far.  But Canova is surely a bit of a mystery.

A Pair Of Non-Guidelines (And Non-Custodial) Sentences

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?

Pre-Trial Confinement Factoring Into Sentencing

United States v. Castellanos, No. 03 CR. 156-08 (RWS), 2006 WL 3016313 (S.D.N.Y. Oct. 23, 2006)

Just a quick note on this one.  Castellanos was held in apparently awful conditions for approximately a year and a half in Columbia prior to his deportation to the United States.  (Check out the opinion itself for Judge Sweet's description of those conditions and the support he relies upon.)  And it seems that Judge Sweet was sympathetic to those conditions as a basis for downward departure.  Castellanos, however, was subject to a ten year mandatory minimum sentence so there was not much that Judge Sweet could do.  Nevertheless, the case is worth noting because it provides the background and support for the making of such a motion in circumstances in which it can have some impact.

Downard Departure For Extraordinary Family Circumstances And A Non-Guidelines Sentence

United States v. Trochtchenkova, Case No. 05 Cr. 503 (SAS) (Oct. 11, 2006)

As reported to me by Pat Pileggi, Esq. (ppileggi@paplaw.com), Judge Scheindlin sentenced Trochtchenkova to a year and day, notwithstanding an advisory Guidelines range calculated by the Government of 51-63 months and an advisory Guidelines range calculated by Probation of 30-37 months. 

How did Judge Scheindlin get to that sentence?  Well, initially Judge Scheindlin agreed with Probation on the advisory Guidelines calculation (notwithstanding Trochtchenkova's objection to a two offense level increase for use of sophisticated means).  Trochtchenkova moved for downward departures based on extraordinary family circumstances, diminished capacity and extraordinary rehabilitation, and also sought a non-Guidelines sentence based on the factors set forth in 18 U.S.C. § 3553(a)(6).  Judge Scheindlin rejected all of the grounds for downward departure except for the extraordinary family circumstances -- a circumstance that Judge Scheindlin found called for a three offense level departure (resulting in an advisory Guidelines range of 21-27 months). 

Specifically, Judge Scheindlin found that Trochtchenkova had no family who resided in the United States and that neither of the fathers of Trochtchenkova's two children (ages 7 and 15) were available for child care (one is incarerated and one has no fixed address):

I find that this case actually does qualify for a downward departure based on extraordinary family circumstances.  This defendant is a single mother of two children by two different men, neither of whom is supporting the children.  She is an immigrant from Russia who does not have any family here in the United States.  Most of her relatives are in Russia.  The father of the younger child is himself incarcerated based on his involvement in this case.  More importantly, he has threatened his wife physically and emotionally, who is the mother of the 7 year old, and has also threatened to kipnap his daughter and taker her to Egypt where she will be permanently separated from her mother.  Depending on the length of her incarceration, the children would need a permanent placement with a responsibile adult either here with friends or in foster care or in Russia with relatives.

Both alternatives are grim prospects for the children.  While it is an ordinary event for a defendant parent to be separated from his or her children, what is extraordinary here is the absence of any reasonable option for their care during the sole parent's absence.  The potential damage to these children if they are separated from their parent for a lengthy period of time is probably incalculable.  While children are resilient, this situation is unprecedented in my experience.  In my years of sentencing, there is almost always a parent or other family member who can take over the child rearing during the parent's absence.  For this reason, I conclude that a downward departure based on extraordinary family circumstances is warranted.

In addition to the foregoing downward departure, Judge Scheindlin also found that a non-Guidelines sentence was appropriate (thereby accounting for the year and a day sentence flowing from the 21-27 month advisory Guidelines range).  Specifically, Judge Scheindlin found (among other things) that: (a) the crime of prostitution was non-violent (even going so far as to note that the prostitutes themselves were not actually victimized, despite Congressional findings to the contrary); (b), Trochtchenkova had no criminal history; (c) Trochtchenkova had a difficult personal life (including the fact that her father murdered her mother in her presence when she was seven years old); (d) Trochtchenkova had been married to two separate abusive men; (e) Trochtchenkova suffered from post-traumatic stress syndrome and battered woman's syndrome, and may be suicidal if separated from her children; and (f) Trochtchenkova has always worked, has a college degree and is now trying to work in the real estate industry.

In light of all of the foregoing, it is somewhat surprising that Judge Scheindlin imposed a custodial sentence at all.  Indeed, one could reasonably have expected a non-custodial sentence (as had been requested). 

Nevertheless, defense counsel did a superb job of employing all of the tools available today in moving the sentencing court significantly away from the Guidelines -- to wit, moving for downward departures and seeking a non-Guidelines sentence on all available grounds.  Nice job Pat!

NOTE TO READERS: Have you had an interesting or notable sentencing recently?  If so, send me an e-mail at info@fedsentencinglaw.com -- include details on the case and the sentencing, including the sentencing memorandum and sentencing transcript (if available).

Harsh Conditions Of Overseas Incarceration Are Grounds for Downward Departure

United States v. Salvador, No. 98 CR. 484 (LMM), 2006 WL 2034637 (S.D.N.Y. July 19, 2006)

Salvador moved for a downward departure based on (among other things) the conditions of his incarceration in the Dominican Republic while awaiting extradition for approximately 6 months, which included "an almost complete lack of even minimal sanitary conditions and lack of food at times."  And, consistent with courts that have dealt with similar circumstances, the court granted a downward departure, from an offense level of 40 to an offense level of 39.  Although superficially small, the 1 offense level departure correlates to a substantial sentencing range departure of from 292 to 365 months imprisonment to 262 to 327 months imprisonment.  A seemingly fair result. 

(As an aside, the court rejected Salvador's downward departure motion based on extraordinary family circumstances which, in turn, was based on his eight -- that's right -- eight children.)