United States v. Machitidze, 05 CR. 327 (S.D.N.Y. May 24, 2006)
Thanks to Chuck Ross of Herrick, Feinstein (who represented Machitidze) and Lance Croffoot-Suede of White & Case LLP (who represented the defendant in United States v. Fernandez and who provided me with the sentencing transcript in Machitidze), I have learned of what appears to be the first imposition of a non-Guidelines sentence based on non-5K cooperation since the Second Circuit declared non-5K cooperation to be a valid basis for a non-Guidelines sentence. And, as predicted in my analysis of Fernandez, it arises from a defendant who attempted to cooperate with the Government but who was ultimately unsuccessful in entering into a cooperation agreement with the Government (through no fault of his own).
Specifically, Chuck Ross argued the following to Judge Richard J. Holwell of the United States District Court for the Southern Disrict of New York:
"Finally, with respect to our 3553 argument generally, I think the strongest part of that argument, your Honor, is certainly with respect to a non-5K cooperation by Mr. Machitidze. The recent Second Circuit case of United States versus Fernandez certainly lays out that under 3553 and a consideration under all of those sentencing factors that your Honor must consider in imposing a sentence that a sentencing court may take into account a person's efforts at cooperation which fall short of a letter and formal motion by the government under 5K1.1 of the sentencing guidelines."
"And I just want to make clear we made this clear in our submission that we are not saying that the government did anything wrong by deciding not to offer a 5K letter here. . . .They really treated Mr. Machitidze very well and listened to him and gave him every chance here. And I think all three of them were hoping that something could work out because he tried really, really hard. He really did."
"And in both of the lengthy proffers that we had with the government I think everyone thought that he was telling the truth and was really coming clean about his involvment and his involvement certainly in the immigration fraud part of this . . . and we were really hoping that the government would go after those folks and for some reason or another through no improper motive or bias or anything bad there was a decision not to pursue that prosecution."
"But here Fernandez really lays out a template for your Honor to consider this and I think it's a real live consideration for your Honor this morning."
. . . .
"You know, the circuit in Fernandez realized that judges ought to be able to credit this, both on the history and characteristics, but also as a barometer of the person's remorse and contrition and I think that comes though loud and clear here; that Mr. Machitidze spent hours with the government, was very, very remorseful and his true and sincere effort at cooperation should be credited here and under all the circumstances ought to cause your Honor to impose and outside-of-the-guidelines sentence here and sentence him with more mercy and lenity than what the guidelines sentence calls for.
And how did the Government react to this argument? Well, they basically didn't. Specifically, the Government stated as follows: "Your Honor, on the cooperation issue under 3553(A), frankly I have nothing to say that would contradict what Mr. Ross said. I will answer any questions if your Honor has them, and it's obviously somewhat of a sensitive area [I suspect a reference to the substance of his cooperation and not the law of non-5K cooperation], but I don't have anything that I would say that would directly contradict what Mr. Ross has said."
And how did the Court rule? It sentenced Machitidze to a 30 month term of imprisonment, despite an advisory Guidelines range of 33 to 41 months imprisonment. And, in doing so, the Court specifically noted that a sentence "slightly below the guideline range . . . is appropriate in this case in light of the defendant's personal history and specifically his efforts to cooperate with the government in this case."
Machitidze is proof positive that non-5K cooperation is a viable basis for a non-Guidelines sentence, and that courts are receptive to the argument. Moreover, the Government's failure to oppose Machitidze's application -- while perhaps fact-specific to Machitidze -- is also significant, and should serve as encouragement to defense attorneys to actually go out and seek non-Guidelines sentences based in non-5K cooperation.
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