Non-5K Cooperation Leads (In Part) To A Non-Guidelines Sentence

United States v. Baldev, No. 08-CR-868 (JBW), 2009 WL 2878445 (E.D.N.Y. Sept. 2, 2009)

A quick note:

Baldev pled guilty to count two of a five-count indictment, which charged that he, together with others, conspired to distribute and possess with intent to distribute marijuana.  For that offense, Baldev faced an advisory Guidelines range of 18 to 24 months imprisonment.  The court, however, sentenced him to time served, which amounted to more than six and a half months imprisonment.  Why?  Because: (1) Baldev's "involvement in the conspiracy was limited and brief in duration"; (2) it was his first offense; (3) he has serious medical conditions that require treatment; and (4) perhaps most importantly, he provided information to the Government, although that information did not result in a 5K letter.

A Non-Guidelines Sentence Based On The History And Characteristics Of The Defendant

United States v. Ahmad, No. 08-CR-460 (JBW), 2009 WL 700870 (E.D.N.Y. March 16, 2009)

The Court calculated Ahmad's Guidelines offense level to be 10 for Count 1 of a two count indictment (charging possession and use of a United States Permanent Resident Card issued in the name of another, knowing that the document was procured by means of a false statement and fraud).  His advisory Guidelines range was 6-12 months imprisonment.  The Court, however, imposed a non-Guidelines sentence of 1 month imprisonment for the following reasons: (1) Ahmad was well educated, having received a college degree in Pakistan; (2) he "is a hard and conscientious worker, having had success as a car service driver and gas station attendant, among other employment positions" (3) he has "paid taxes while living and working in the United States"; (4) a "substantial amount of his earnings have been sent to his wife, young children, and elderly parents in Pakistan"; and (5) he "suffers significant pain in his arm, the consequence of a serious accident in 2001, which requires ongoing medical attention."

Unfortunately, Ahmad was also convicted of aggravated identity theft, which required a mandatory, consecutive 24 month term of imprisonment.  Thus, in total, he was sentenced to 25 months imprisonment.

Second Circuit Criticizes A Somewhat Unsympathetic Sentencing Decision

United States v. Marino, No. 08-0615-cr (2d Cir. Feb. 17, 2009) (found here)

Dan Marino worked for hedge fund swindler Samuel Israel.  He pled guilty for his involvement in that massive fraud, and entered into a cooperation agreement with the Government.  The Guidelines recommended a 50 year term of imprisonment.  The district court sentenced him to 20 years.  Marino appealed, arguing that his sentence was both procedurally and substantively unreasonable.  While the Second Circuit affirmed the sentence, it issued some pretty strong language concerning the district court's sentencing decision.  Here's what it had to say:

We pause to note that we might ourselves have given greater weight than apparently did the district court to Marino's plight -- his almost complete deafness and accompanying sense of loneliness, his lack of self-esteem, his bouts with cancer, his apparent fear of and deference to Israel -- and his assistance to the government detailed in its "5K1 Letter" (noting his aid to the government in understanding the fraud, his immediate contrition and taking of responsibility upon discovery, and his contribution to the guilty pleas of his co-conspirators).  But it is not for us to substitute our judgment for that of the district court, whose sentence was procedurally and substantively proper.

I fear that the fact that the Second Circuit came close to, but ultimately did not, reverse the sentence for substantive unreasonableness will only further weaken the opportunities for and possibility of any reversal based on substantive unreasonableness.  And that begs the questions: What is substantive unreasonableness?  What circumstances qualify for a finding of substantive unreasonableness?

Judge Batts -- A Little Harsh On Downward Departures Based On Health Problems

United States v. Gutierrez, No. 04 Civ. 6529, 02 CR. 1312 (DAB), 2005 WL 2207026 (S.D.N.Y. Sept. 6, 2005)

Judge Battes imposed a sentence of 342 months imprisonment on a defendant (Gutierrez) convicted of serious narcotics offenses.  Gutierrez moved pro se pursuant to 28 U.S.C. 2255 to vacate the sentence based on (among other things) Judge Batts' failure to depart downward based on Gutierrez's serious health problems -- which, according to Judge Batts, "reportedly" included "advanced diabetes," high blood pressure, "severe renal failure," glaucoma, two strokes, confinement to a wheelchair, and daily dialysis and medication."  Judge Batts declined to revise her sentence because Gutierrez "neither claims nor provides any evidence that such health problems cannot be adequately addressed in one of the Bureau of Prison's many medical facilities" and because at sentencing Gutierrez' "attorney stated that the BOP's hospital in Fort Worth, Texas could furnish the best treatment that he needs for the various ailments that he has."

In light of Gutierrez's significant and serious medical conditions, Judge Batts' 342 month sentence seems a bit harsh.  And, even though the BOP medical facility mentioned at sentencing may be able to provide the "best treatment" for Gutierrez, the question of whether or not another sentence is appropriate is not addressed.  Rather, acknowledgement of that BOP's facility's facilities is merely an acknowledgment of the best circumstance for Gutierrez if Judge Batts does not sentence him outside of his Guidelines range.