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.

Judge Rakoff Courageously Does It Again: "When the letter of the law so far departs from justice as to become the instrument of brutality, common sense should call a halt."

United States v. Ballard, 599 F. Supp. 2d 539 (S.D.N.Y. March 2, 2009)

The distorting effects of mandatory minimum sentences are never more evident than in the case of defendant Zachary Ballard.  Although his co-defendant, Anthony Steele, by entering into a plea bargain excluding mandatory minimums, obtained a sentence of 168 months in prison, Ballard, by exercising his constitutional right to go to trial, faced mandatory minimums upon conviction that required this Court, on February 8, 2009 to sentence him to a term of imprisonment of 601 months, i.e., just over 50 years.  The Government, moreover, believing that the law requires the Court to sentence Ballard to approximately 167 months more -- i.e., to approximately 64 years in prison -- now moves, pursuant to Fed.R.Crim.P. 35(a), to correct defendant's sentence for "clear error."

Given that the law so favors consecutive mandatory minimums, the motion is not frivolous; but in the end, the Court denies the motion.

That's how Judge Rakoff begins his critique of mandatory minimum sentencing -- similar to his outstanding work in United States v. Adelson concerning the loss table and large-scale financial frauds (detailed here).

By way of background, Ballard was convicted on seven counts relating to a series of armed robberies that he and his co-defendant executed pursuant to a conspiratorial plan.  Several of the gun counts of conviction carried mandatory minimum consective sentences of 7 years, 25 years and 25 years.  Several of the non-gun counts of conviction had no mandatory minimums, but did have advisory Guidelines ranges.  The Government took the position that "the Court should impose on the non-gun counts a sentence at least at the bottom of the Guidelines range (i.e., 7 years), plus consecutive sentences on each of the gun counts (i.e., 7 years plus 25 years plus another 25 years for a total of 64 years in prison)."

When Ballard initially appeared for sentencing, the Court "expressed reservations about imposing a 64-year sentence for a string of robberies that, although by any account serious and deserving of a significant sentence, did not result in any bodily injury or death."  The Court "also expressed its belief that a sentence of 'somewhere between 25 and 35 years, a very substantial sentence under any conceivable analysis,' would be more than sufficient" to satisfy 18 U.S.C. § 3553(a)  The Government apparently agreed because it made Ballard an offer (sort-of at the Court's suggestion) -- We won't object to a 39 year sentence if you promise not to appeal the sentence.  Over his counsel's recommendation, however, Ballard "once again asserting his full panoply of rights, rejected the sentence bargain." 

The Court ultimately felt obliged to sentence Ballard to 60 years.  The Government then filed its Rule 35 motion, seeking the additional time that it felt the relevant statutes and caselaw (as detailed in the opinion) required the Court to impose.  The Court rejected the Government's argument, distinguishing the caselaw (United States v. Chavez, 549 F.3d 119 (2d Cir. 2008)).  And then it courageously laid out its conclusion -- which I think speaks for itself concerning the Court's views as to the mandatory minimum sentences with which it had to contend and the Government's position concerning their applicability:

If the Government, in the exercise of its discretion, believes that vindication of its view of the law requires it to appeal the 50-year sentence imposed in this case so that even more time can be imposed on a defendant who clearly faces a near-life sentence, so be it.  This Court, in the exercise of its discretion under Rule 35(a), declines to be a party to such an unconscionable result.  When the letter of the law so far departs from justice as to become the instrument of brutality, common sense should call a halt.

Once Again, The Safety Valve

United States v. Smith, No. 08-CR-545 (JBW), 2009 WL 971682 (E.D.N.Y. April 2, 2009)

How do you get from a five year mandatory minimum sentence and an advisory Guidelines range of 37 to 46 months down to a sentence of only a year and a day?  The safety valve, of course.  Also, it doesn't hurt that you've got a nice sentencing story and a couple of bucks to forfeit:

The defendant is intelligent and thoughtful, and he has taken responsibility for his criminal acts.  He has a loving family that will support him in leading a lawful life moving forward.  Given the defendant's long history of involvement with drugs as well as his past problems with alcohol and gambling, treatment will be critical in his rehabilitation; he has expressed his intent to take full advantage of those programs.  He agreed to forfeit all the drug proceeds -- nearly a quarter of a million dollars -- recovered from him by law enforcement at the time of his arrest, a factor in the defendant's favor for purposes of sentencing.

Safety Valve Reduces Sentence From 10 Year Mandatory Minimum To Time Served

United States v. Samuels, No. S1-08-Cr.-08-03 (RWS), 2009 WL 875320 (S.D.N.Y. April 2, 2009)

Ah . . . the power that the safety valve can sometimes yield.  Samuels pled guilty to conspiring to distribute and possess with intent to distribute 50 grams or more of crack.  For that offense, she faced a 10 year mandatory minimum sentence (even though her Guidelines indicated 70 to 87 months imprisonment).  Samuels, however, fulfilled the requirements of 18 U.S.C. § 3553(f), and was sentenced to time served (15 months).  Here's the justification for the sentence as explained by the Court:

Title 18 U.S.C. § 3553(a)(1) directs the Court to consider "the history and characteristics of the defendant" when determining the appropriate sentence.  As noted by the Probation Officer in his report, Samuels was raised under poor economic circumstances with an abusive father addicted to crack.  She dropped out of school in order to support her family, and she has stated that her sale of narcotics was for economic reasons.  Her abuse of crack was never extensive, and she reportedly stopped abusing and selling crack in November 2007 on her own initiative, two months prior to her arrest.  The probation officer noted in the PSR that her abuse of drugs was a source of embarrassment to her and kept from her family, and Samuels has stated that she has no desire to ever use drugs again.

Samuels has acknowledged responsibility for her actions, stated that she has learned a valuable lesson from it, and seeks to move forward to become a productive member of society.  Her 15 months of incarceration reflect the positive change that the Defendant seeks to make in her life.  She has successfully completed a typing class, undergone Inmate Companion Training, is pursuing classes in order to earn a GED degree, and leads a trusted cleaning crew that is permitted access to nearly all parts of the MDC.  She has never been written up for a disciplinary infraction while in custody.  Upon her return to society, Samuels appears well positioned to complete her education and pursue gainful employment in support of her family.

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

Second Circuit Affirms Wide Upward Variance

United States v. Martinucci, Docket No. 08-0104-cr (2d Cir. April 8, 2009) (found here)

Martinucci was convicted of some pretty serious crimes (child pornography and sexual abuse and the like). His offense level under the Guidelines was 33, which indicated a sentencing range of 135-168 months imprisonment.  But he also faced a mandatory minimum sentence of 180 months.  The court, however, imposed a 300 month sentence  -- which the Second Circuit affirmed.  More specifically, the Second Circuit found that:

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 jusitified the lengthy imprisonment term.  The court did not exceed its sentencing discretion.

Nothing extraordinary about the decision, other than to note that such wide variances from the Guidelines are not necessarily viewed skeptically by the Second Circuit when a good record has been made by the district court.

Second Circuit: Mandatory Minimum Drug Sentences Not Inconsistent With Parsimony Clause

United States v. Samas, No. 05-5213-cr (2d Cir. March 24, 2009) (found here)

Samas contended on appeal (among other things) that the mandatory minimum sentence provisions of 18 U.S.C. § 841(b) conflict with the parsimony clause contained in 18 U.S.C. § 3553(a).  More specifically, Samas argued that the balance required by the parsimony clause is incompatible with a mandatory sentencing scheme.

The Second Circuit rejected Samas' argument.  It drew a parallel between mandatory minimum narcotics sentences and the mandatory minimums applicable to firearms offenses, and cited to a case (United States v. Chavez, 549 F.3d 119 (2d Cir. 2008)) in which it held that the firearms mandatory minimums are not inconsistent with the parsimony clause.  (It did, however, acknowledge that there is some tension.)  More specifically, the Second Circuit noted that the introductory language of Section 3553(a) states that "[e]xcept as otherwise specifically provided," and that mandatory minimums (whether related to narcotics or firearms) are one such "otherwise specifically provided" for circumstance.

Serving Time For The Same Crime

United States v. Armstrong, No. 07-CR-874 (JBW), 2008 WL 5459177 (E.D.N.Y. Dec. 22, 2008)

This is interesting. 

Armstrong pled guilty to a serious offense -- he was "a member of a gang that disturbed the peace and threatened the safety of a public housing project."  The advisory Guidelines recommended a 135-168 month sentence (and a 5 year mandatory minimum), yet Judge Weinstein sentenced him to 84 months.  Why?  Well, "Armstrong's childhood was affected by inadequate parental control."  Moreover, he was "of slight stature and juvenile appearance, which may make his time in prison particularly hazardous."

But perhaps more interestingly, he "had already served fourteen months time under a state sentence for essentially the same conduct." 

Childhood Facial Burn = Non-Guidelines Sentence?

United States v. Trantham, No. 07-CR-232 (JBW), 2007 WL 3274906 (E.D.N.Y. Oct. 30, 2007)

Count I:  Advisory Guidelines offense level of 37 to 46 months
Count II:  60 month mandatory minimum to run consecutive to sentence for Count I
Combined Advisory Guidelines Range:  97 to 106 months
Sentence: 90 months

Reasoning:  Trantham's personal circumstances.  Trantham was 23 years old, and the youngest of three participants in the crime.  Moreover, Trantham "was seriously burned when he was an infant and retains a disfiguring facial scar as a result.  He had mental difficulties as a child for which he received treatment and medication and attended special education classes.  He was engaged to be married, but as a result of the crime his fiance lost their child and had to move out of state to live with relatives.  He was planning to move out-of-state with her, which would have removed him from a criminal environment.  Defendant had been employed by the Board of Education, and lost that job through no fault of his own, and was looking for further work at the time of the crime."

Second Circuit Rejects Government Appeal Concerning Relevant Conduct

United States v. Hartfield, Nos. 05-4984-cr, 05-6587-cr (2d Cir. Jan. 8, 2007) (found here)

Judge Hurd of the United States District Court for the Norther District of New York sentenced Hartfield to 120 months imprisonment for a narcotics offense.  The Government appealed that sentence, asserting that the Judge Hurd had erred in not considering (in calculating Hartfield's advisory Guidelines range) "any of Hartfield's conduct relating to the amount of crack cocaine for which he was responsible that was not proven to a jury beyond a reasonable doubt or admitted by Hartfield."

The Second Circuit rejected the Government's appeal, noting that Judge Hurd at sentencing stated that Hartfield did not deserve a 120 month sentence and that, if he had the power to impose a lesser sentence, he would have.  Thus, the Second Circuit expressed its confidence that Judge Hurd would still have imposed a 120 month sentence even if he had "considered all of the conduct the Government argues it should have considerd in calculating Hartfield's Sentencing Guidelines range."  Indeed, the Second Circuit noted that any error by Judge Hurd was harmless.

An Interesting View Of Deterrence -- Applicable In White-Collar Cases?

United States v. Aggrey-Fynn, No. 04 CR. 1148-4 (RWS), 2006 WL 3408419 (S.D.N.Y. Nov. 22, 2006)

Aggrey-Fynn was found guilty after a jury trial of one count of conspiracy to distribute and possess with intent to distribute heroin.  Based upon a total offense level of 34 and a Criminal History Category of I, Aggrey-Fynn's Guidelines range of imprisonment was 151 to 181 months.  The court, however, sentenced Aggrey-Fynn to a non-Guidlelines sentence of 120 months imprisonment based on a finding that (among other things) a 120 month sentence was sufficient, but not greater than necessary, to provide a deterrent effect.

Specifically, the court found that "the principle of deterrence requires an appropriate relationship between the sentence for the current offense and the sentences, particularly the times served, for [any] prior offenses" and that "a large disparity between the Guidelines sentence and any prior time served might indicate that the Guidelines sentence provides a deterrent effect . . . in excess of what is required . . ." (citing United States v. Mishoe, 241 F.3d 214, 220 (2d Cir. 2001).  Thus, the Court found that the 120 month mandatory minimum sentence was sufficient, but not greater than necessary, to deter Aggrey-Fynn because the offense (although serious) was his first one and because he had no prior convictions, had never before been incarcerated, and had demonstrated his capability and willingness to be a productive citizen by maintaining gainful employment for many years and pursuing higher education.

The same analysis arguably applies to virtually all first-time offenders and, particularly, to white-collar offenders who generally have no criminal record and have generally been productive citizens (often making significant charitable and community contributions ).  An argument to keep in mind.