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Non-Guidelines Sentences Generally
United States v. Jiang, No. 09-CR-34, 2009 WL 3254434 (E.D.N.Y. Oct. 9, 2009) Quick note: Jiang was convicted of fraudulently importing and trafficking in certain counterfeit goods, for which he faced an advisory Guidelines range of imprisonment of bewteen 78 and 87 months. The district court, however, sentenced him to 30 months imprisonment. It initially noted that the "offenses are serious" because they "destroy American commerce." But it nevertheless imposed a non-Guidelines sentence because "he
does have some physical and mental conditions which are subject to
pharmaceutical and other treatments. The defendant has a strong work
history and many friends and supporters in the community. He has a
supportive family and provides for his wife and two teenage children."
United States v. Ray, 578 F.3d 184 (2d Cir. 2009) There was a 15 (that's right -- 15) year gap between a decison by the Second Circuit reversing Ray's sentence and remanding for resentencing, and the actual resentencing hearing, at which Ray was sentenced to six months of community confinement. Check out the decision for all the details concerning the basis for the ruling, but the bottom line is that the Second Circuit found that the 15 year delay violated Ray's right under the due process clause of the Fifth Amendment to "speedy sentencing." And although it did not directly decide the issue, the Second Circuit indicated that the appropriate remedy for a speedy sentencing violation is a sentence of time served (particularly where the delay in imposition of a custodial sentence "threatens to undermine her successful rehabilitation").
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.
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.
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."
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."
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