Defendant Taken Advantage Of -- Family Circumstances -- Non-Guidelines Sentence

United States v. Morillo, No. 08-CR-920 (JBW), 2009 WL 3174096 (E.D.N.Y. Oct. 1, 2009)

Quick note:

Morillo pled guilty to importing heroin into the United States, for which she faced an advisory Guidelines range of imprisonment of between 37 to 46 months after the saftey valve was taken into consideration.  The district court, however, sentenced her to 24 months imprisonment because the offense:

appears to have been an aberrational crime that was committed at the behest of drug smugglers seeking to take advantage of the relative youth and immaturity of this defendant, in light of her financial circumstances and desire to support her young child. She is young and capable of leading a productive and law-abiding life. Her expressions of contrition appear sincere. Her son is in the care of a family friend in the Dominican Republic; the son's father is not involved in the child's care and provides no support. Matos Morillo's mother is undergoing treatment for cancer and is unable to help with the child's care. It is desirable that the defendant resume custody and care of her child and assist her sick mother. A sentence of 24 months reflects the seriousness of the offense, and will promote respect for the law and provide just punishment.

Imposing Role Adjustment Without Specific Factual Findings Constitutes "Plain Error"

United States v. Ware, 577 F.3d 442 (2d Cir. 2009)

Ware was convicted of securities fraud and conspiracy to commit securities fraud, and was sentenced principally to 97 months imprisonment.  Proceeding pro se on appeal, Ware challenged, among other things, the district court's application of a 4 level role enhancement.  At sentencing, though, Ware had not challenged the district court's role enhancement.  Accordingly, his challenge to the sufficiency of findings was reviewable only for plain error.  And the Second Circuit found such error to have occurred.  Specifically, it "conclude[d] that the findings of the district court are not sufficient to reveal a factual basis for the court's conclusion that Ware's criminal activity involved five or more 'participants' or was 'otherwise extensive' within the meaning of the Guidelines 3B1.1(a).  Thus, the Second Circuit reversed Ware's sentence, and remanded either for supplemental factual findings or for resentencing.

The underlying facts relating to the district court's conclusions concerning the absence of an adequate factual basis for the role enhancement are not as important as the larger point -- to wit, that it is "plain error" for a district court to impose a role enhancement whatever the circumstances without adequate findings of fact.  This is consistent with the Second Circuit's general direction concerning how sentencing hearings should  be conducted in the post-Booker world.  The only question is this: Will "plain error" analysis be extended to any other factual findings upon which sentences are based?

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.

Youth And Family Support

United States v. Santano, No. 07-CR-874 (JBW), 2009 WL 1956227 (E.D.N.Y. July 6, 2009)

Short Note:

Santano pled guilty to a narcotics offense.  Although he did not initially qualify for safety valve relief, he ultimately did.  And the Court determined that he faced a Guidelines range of 87 to 108 months imprisonment.  He was ultimately sentenced, however, to 37 months imprisonment.

Why?  "The offense is serious.  The defendant was a member of a gang that disturbed the peace and threatened the safety of a public housing project.  He was extremely young during the time of his involvement in this drug sales operation.  He has the benefit of considerable support from his family, who expressed that they are moving to a different community to assist in Santano's continued rehabilitation and reintegration into society.  His former employer indicated that Santano is a talented barber and would have a job in his shop available to him upon his release.  He is an intelligent individual who appears capable of leading a productive, law-abiding life."

United States v. Santano, No. 07-CR-874 (JBW), 2009 WL 1956227 (E.D.N.Y. July 6, 2009)

Short Note:

Santano pled guilty to a narcotics offense.  Although he did not initially qualify for safety valve relief, he ultimately did.  And the Court determined that he faced a Guidelines range of 87 to 108 months imprisonment.  He was ultimately sentenced, however, to 37 months imprisonment.

Why?  "The offense is serious.  The defendant was a member of a gang that disturbed the peace and threatened the safety of a public housing project.  He was extremely young during the time of his involvement in this drug sales operation.  He has the benefit of considerable support from his family, who expressed that they are moving to a different community to assist in Santano's continued rehabilitation and reintegration into society.  His former employer indicated that Santano is a talented barber and would have a job in his shop available to him upon his release.  He is an intelligent individual who appears capable of leading a productive, law-abiding life."

Post-Offense Rehabilitation (And Cooperation) Result In Wide Variance

United States v. Cadle, No. 04-CR-750 (JBW), 2009 WL 1764980 (E.D.N.Y. June 11, 2009)

Short Note:

Cadle pled guilty to conspiring to import cocaine into the United States, an offense for which she faced an advisory Guidelines range of 37 to 46 months imprisonment.  She cooperated with the Government, and received a 5K1.1 Letter.  And she was sentenced to three years probation.

Why?  "The offense took place almost five years prior to this sentencing.  The defendant's actions since that time demonstrate significant rehabilitation.  Cadle has pursued an education and devoted herself to her family responsibilities.  Her cooperation with the government was robust and helped lead to the conviction of a major cocaine trafficker."

A Truly Sad Story And A Non-Guidelines Sentence

United States v. Torres, No. 08 Cr. 1062-01 (RWS), 2009 WL 1619640 (S.D.N.Y. June 4, 2009)

Torres pled guilty to one count of conspiracy to distribute and possession with intent to distribute crack.  Based on her advisory Guidelines offense level of 23 and criminal history category of VI (which was based on 15 total criminal history points that, in turn, was based on 19 arrests/convictions), Torres faced an advisory Guidelines range of imprisonment of between 92 and 115 months.  She was, however, sentenced to 36 months imprisonment based on her extraordinarily sad personal history, which bears quoting in full here:

Torres has led an extremely difficult life. She was one of six children born of a relationship between a mother who struggled with drug abuse and an absentee father. She was raised by a grandmother who was verbally abusive and abused alcohol.

Torres has had a long history of drug addiction, which started when she was introduced to marijuana by her uncle at age 11. The same uncle introduced her to crack at 12, and sexually abused her for three months during that time. She began using crack regularly at age 16. Torres was sent to a group home by her grandmother when she was 15, but has lived on the streets or with friends and associates since she was 16.

Torres has two children, David, age 10, and Kriestien, age 7. David was taken away from Torres at birth because David tested positive for drugs, and she has not seen him in several years. During her pregnancy with her son Kriestien, who was the result of a rape, Torres stopped using drugs. Kristein is currently living with Defendants' sister, age 20, and mother, who continues to struggle with addiction.

Torres suffers from asthma in addition to seizures that she attributes to her drug use.

Torres has never participated in a drug treatment program. She has expressed a desire to seek rehabilitation for her drug addiction. In addition, she has participated in GED classes for the past 6 months while incarcerated at the MDC and expressed an interest in becoming a productive member of society upon her release.

Because a Guidelines term of incarceration would not serve the goals of the penal system with respect to this Defendant, a downward departure from the Guidelines is appropriate.

Non-Guidelines Sentence Based On Defendant's History And Characteristics

United States v. Bello, No. 08-CR-801 (JBW), 2009 WL 1310791 (E.D.N.Y. May 5, 2009)

Bello pled guilty to a narcotics offense for which the Guidelines indicated a 37 to 46 month term of imprisonment (Level 21).  Bello, however, qualified for 2 level reduction pursuant to Sections 2D1.1(b)(11) and 5C1.2 of the Guidelines, thereby reducing his advisory Guidelines range to 30 to 37 months (Level 19).  The court, however, sentenced him to 18 months imprisonment based principally on his history and characteristics.  Here is how the court described it:

The offense is serious: the defendant ingested numerous heroin-filled pellets for importation into the United States.  He is a highly intelligent and hard working young man who has accepted responsibility for his criminal actgions.  He has been the financial provider to his family since he was a teenager; his mother, infant son, and son's mother in the Dominican Republic have faced significant hardship in his absence.

Didn't Take Much To Get There, And Sounds Like It Was The Right Sentence

United States v. Mayala, No. 08-CR-42 (JBW), 2009 WL 1181051 (E.D.N.Y. May 1, 2009)

Mayala faced an advisory Guidelines range of 6 to 12 months imprisonment for her role in a bank fraud scheme, and was sentenced to time served and five years of supervised release.  As justification for the non-Guidelines sentence, the court explained that "[w]hile it does not excuse her conduct, Mayala was in an emotionally and physically abusive relationship with Jacques Lacroix, the mastermind of the bank fraud scheme, at the time of the offense.  Mayala is the primary caregiver for her son, who, while bright, has emptional problems that require psychiatric treatment.  The defendant has a need for educational training that would be better accomplished outside of prison."

Second Circuit Affirms Wide Upward Variance

United States v. Martinucci, 561 F.3d 533 (2d Cir. 2009)

Martinucci pled guilty to one count of producing child pornography, in violation of 18 U.S.C. § 2251(a).  For that offense, he faced a 180 month mandatory minimum, even though the advisory Guidelines indicated a 135 to 168 month term of imprisonment. 

The sentence?  300 months. 

The reason?  An upward departure under Section 5K2.8 of the Guidelines (Extreme Conduct). 

The result on appeal?  Affirmed. 

The reasoning?  "Nor is there merit to Martinucci's contention that the court acted unreasonably in departing upward under U.S.S.G. § 5K2.8 and imposing a term of imprisonment of 300 months.  The district court conscientiously reviewed the pertinent sentencing factors specified by § 3553(a) and concluded, considering the seriousness of the offense and the great harm inflicted on the victim, the defendant's recidivism, and his lack of remorse, that the need for punishment, for deterrence of others, and for protection of society justified the lengthy imprisonment term.  The court did not exceed it's sentencing discretion. . . .  In our view, the sentence was altogether appropriate."

Reversal For Failure To Consider Age-Recidivism Correlation

United States v. Hamilton, et al., No. 07-2874-cr (2d Cir. April 14, 2008) (found here)

Hamilton argued that the district court abused its discretion by failing to consider Hamilton's age and his reduced likelihood of recidivism.  He argued that because his case was decided before Gall and Kimbrough the district court was not aware that it could consider an age-recidivism correlation.  And, the Second Circuit agreed, but only because of the language used by the district court at sentencing.  Specifically, the district court stated that it considered "each of the factors in the Sentencing Guidelines in the context of Mr. Hamilton's case" and sentenced Hamilton within the Guidelines.  The district court therefore -- by its own admission -- considered only "factors in the Sentencing Guidelines."  Thus, because an age-recidivism correlation is not in the Guidelines, the Second Circuit concluded that it could not "assume that the district court understood that it had the discretion to consider the policy argument disagreeing with the Guidelines' refusal to consider age and its correlation with recidivism."  The district court therefore "abused its discretion in not taking into account policy consideration with regard to age recidivism not included in the Guidelines."

Reversed and remanded for resentencing.  Me?  I think it was probably just a slip of the tongue on the part of the District Court.