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Criminal History Calculations
I've received the following report from Paula Notari ([email protected]) on a recent sentencing she handled before the Honorable Dora L. Irizarry in the United States District Court for the Eastern District of New York in United States v. Dunbar, No. 08-CR-187 (E.D.N.Y. April 21, 2010). In sum and notwithstanding pending legislation to change the 100:1 crack/powder ratio to 20:1, some judges continue to apply a 1:1 ratio. Here's the report: Dunbar was charged in a crack cocaine conspiracy, and pled guilty to a five-year mandatory minimum count. Based in part on a prior New York Youthful Offender adjudication, Judge Irizarry classified Dunbar as a Career Offender, and determined that his advisory Guidelines range of imprisonment was 188 to 235 months. Judge Irizarry, however, sentenced Dunbar to 60 months imprisonment based on a 1:1 crack/powder ration. More particularly, applying this ration (and rejecting the Probation Department's application of a 20:1 ratio), Judge Irizarry concluded that Dunbar's advisory Guidelines range was 30 to 37 months, but was obliged to sentence him to the minimum mandatory five-year term of imprisonment.
United States v. Vasquez, No. 09-CR-259 (JG), 2010 WL 1257359 (E.D.N.Y. March 30, 2010) When people think about miscarriages of justice, they generally think big, especially in this era of DNA exonerations, in which wholly innocent people have been released from jail in significant numbers after long periods in prison. As disturbing as those case are, the truth is that most of the time miscarriages of justice occur in small doses, in cases involving guilty defendants. This makes them easier to overlook. But when they are multiplied by the thousands of cases in which they occur, they have a greater impact on our criminal justice system than the cases you read about in the newspapers or hear about on 60 minutes. This case is a good example.
Wow. That's a helluva an opening paragraph for a sentencing opinion. Let's delve deeply into the case to see what precipitated the Judge Gleeson to write it. As the reader will see, Judge Gleeson has some strong opinions concerning mandatory minimum sentences and the means by which they cast too broad a net. And he has a few choice words for the prosecutors who use them. Background Concerning the Defendant -- Vasquez, age 36 was born in Puerto Rico, the youngest of 12 children. He
had no relationship with his father, who died when he was four or five years
old. He did, however, have a relationship with one of his many older brothers
that was especially damaging. From the age of seven, Vasquez was sexually abused
repeatedly by this brother, and as a result he struggled with depression
his entire life.
Vasquez dropped out of high school in the
ninth grade. By his early twenties, he had acquired some expertise in fixing
cars and trucks. He had also acquired a cocaine addiction. In approximately
1994, he commenced a turbulent ten-year relationship with Ingrid Melendez,
with whom he had three children. During that period, he suffered from multiple
bouts of depression. When the relationship ended in 2004 due to Melendez's
infidelity, Vasquez attempted suicide. He spent two months in Bellevue
Hospital, where he received medications for depression and bi-polar disorder. Other than the drug trafficking that got him
convicted in this case (described below) Vasquez's entire criminal
history stems from his relationship with Melendez. In December of 2004, after
his release from Bellevue, she refused to let him see their children. He
reacted by menacing her with a knife in front
of the children. Though he was given a conditional discharge, he failed to
abide by the conditions; six months later he violated an order of protection by
threatening to kill Melendez. This conduct got Vasquez 60 days in jail on the
earlier menacing case and 60 more for contemptuously violating the order of
protection. A year later, in June of 2006, Vasquez once again showed up at
Melendez's home without permission. He was convicted of harassment and given
another conditional discharge. In 2005, Vasquez met Maritza Caraballo, a bank
teller. They lived together and enjoyed a stable relationship until March 25,
2009, when Vasquez was arrested in this case. They have a three-year-old
daughter, and Carabello's eight-year-old daughter from a prior relationship
also lives with them. Vasquez worked continuously during that period, first as
an auto mechanic, then, beginning in 2007, as a construction supervisor.
Vasquez and Caraballo are engaged to be married in June. Melendez continued to deny Vasquez access to
their three children. Caraballo reports that this produced an extremely
stressful situation for Vasquez, who was complying with his court-ordered child
support obligations to those children. Though Vasquez had stopped using drugs
after he met and began living with Caraballo, under the mounting stress of his
situation with Melendez and their children, he finally relapsed in 2008, when
he began using cocaine again. That development laid the groundwork for his
involvement in his offense of conviction. To support his expensive cocaine
habit, Vasquez went to work in approximately September of 2008 for one of his
older brothers, Jose Angel Vasquez, a drug dealer and his co-defendant in this
case. Unfortunately for both of them, the government was intercepting the
telephone calls of members of Jose Vasquez's business. Those calls identified
the defendant as a minor participant in his brother's organization. More
specifically, "[t]he government's investigation revealed that, for the
most part, the defendant was a street-level distributor for his brother's
organization, with only occasional and minor participation in the
organization's broader activities." In the six to eight months
he was involved in the business to support his habit, Vasquez personally assisted
in the distribution of 300 grams of heroin. He was aware of the distribution of
350 additional grams by others, so he was responsible under the Guidelines for 650 grams.
After his arrest, Vasquez tried to cooperate
with the government. He provided information about two individuals, but it
could not be corroborated. As the prosecutor stated when Vasquez first appeared
for sentencing on December 29, if he "had more information, he would have
received a" substantial assistance motion.
The Charge -- According to Judge Gleeson, the Government basically overcharged Vasquez. Specifically:
The
government had it within its power to charge Vasquez with a standard drug trafficking charge, which carries a maximum
sentence of 20 years. Instead, it included him in a conspiracy charge with his
brother and three others and cited to a sentence-enhancing provision that
carries a maximum of life in prison and a mandatory minimum of ten years upon
conviction. During plea negotiations, the government refused to drop that
charge unless Vasquez pled guilty to a lesser-included sentencing enhancement
that carried a maximum of 40 years and a mandatory minimum of five years.
The Effect of the Drug Sentencing Laws on Vasquez -- According to Judge Gleeson, the drug laws (on which he provides excellent background) have a dramatic impact on Vasquez. As described by the Court:
The second result of this regime is placed in
clear relief by this case. I f they want to, prosecutors can decide that
street-level defendants like Vasquez--the low-hanging fruit for law enforcement--must
receive the harsh sentences that Congress intended for kingpins and managers,
no matter how many other factors weigh in
favor of less severe sentences. The government concedes, as it must, that Vasquez
played a minor role in his brother's modest drug operation, not the
mid-level managerial role the five-year mandatory sentence was enacted to
punish. Indeed, the government argues that Vasquez's guidelines computation
includes a two-level downward adjustment because of his mitigating role
in the offense. See U.S. Sentencing Guidelines Manual 3B1.2(5). Yet, by the simple act of invoking the sentence-enhancing
provision of the statute, the government has dictated the imposition of the
severe sentence intended only for those with an aggravating role.
What's a Judge to Do? At sentencing, the Court took an activist role, expressing displeasure with the Government's position and asking the Government to reconsider that position. Ultimately, the Government refused, leading to a none-to-happy Judge Gleeson.
Specifically: When
the case was first called for sentencing in December, I pointed out the
obvious: the five-year mandatory sentence in this case would be unjust. The
prosecutor agreed, and welcomed my direction that she go back to the United
States Attorney with a request from the Court that he withdraw the aspect of
the charge that required the imposition of the five-year minimum. She asked for
a couple of months to make the case that the sentence enhancement should be
abandoned. On March 5, 2010, the prosecutor appeared
again, shadowed by a supervisor. She reported that the United States Attorney
would not relent. She offered two reasons. The first was that I might have
failed to focus on the fact that Vasquez had "received a bump down,"
meaning he was allowed to plead to the five-year mandatory minimum rather than
to the ten-year mandatory minimum that he,
his brother, and three other co-defendants were originally charged with. I think this means that Vasquez should be grateful the
government did not insist on a ten-year minimum sentence based on additional
quantities of cocaine it concedes he knew nothing about and could not be held
responsible for under the guidelines, presumably on the theory that
other members of the same conspiracy dealt those quantities. I suppose there is some consolation
in the fact that the government did not pursue that absurd course, which would
have produced an even more egregious injustice if Vasquez had been convicted.
But that hardly explains, let alone justifies, the government's insistence on
the injustice at hand. Second, the prosecutor suggested that I had
failed to "focus" on the seriousness of Vasquez's crimes against his
ex-wife, Melendez. Implicit in that assertion is the
contention that even if Vasquez does not deserve the five-year minimum because
he was not a mid-level manager of a drug enterprise, he deserves it because of
his past crimes. This rings especially
hollow. Those past crimes have been front and center at all times, not only
because they render Vasquez ineligible for safety valve relief from the minimum
sentence, but also because there was litigation over how many
criminal history points they warranted. When Vasquez first appeared for
sentence on December 29, both of these subjects were discussed. And when the prosecutor took the position that the
criminal history points produced by Vasquez's past crimes overstated the
gravity of those crimes, warranting a downward departure, it did not appear she
had failed to focus on their seriousness either. In any
event, I certainly had not.
I recognize that the United States Attorney is
not required to explain to judges the reasons for decisions like this one, and
for that reason I did not ask for them. But the ones that were volunteered do
not withstand the slightest scrutiny.
The Sentence and the Explanation for the Sentence -- Judge Gleeson was none-too-pleased with having to impose a 5 year mandatory minimum sentence. Indeed, he viewed it as one of those "small injustices" that he described in the opening paragraph of his sentencing opinion. As the Court explained (I've added some paragraph breaks for ease of reading):
As a result of the decision to insist on the five-year mandatory minimum, there
was no judging going on at Vasquez's sentencing. Though in theory I could have
considered a sentence of greater than 60 months, even the prosecutor recognized
how ludicrous that would be, and asked for a 60-month sentence. But the
prosecutor's refusal to permit consideration of a lesser sentence ended the
matter, rendering irrelevant all the other factors that should have been
considered to arrive at a just sentence.
The defendant's difficult childhood and lifelong struggle with
mental illness were out of bounds, as were the circumstances giving rise to his
minor role in his brother's drug business (i.e., it was to support an
addiction, not to become a narcotics entrepreneur with a proprietary stake in
the drugs), the fact that he tried to cooperate but was not involved enough in
the drug trade to be of assistance, the effect of his incarceration on his
three-year-old daughter and the eight-year-old child of Caraballo he is raising
as his own, the fact that he has been a good father to them for nearly five
years, the fact that his prior convictions all arose out of his ex-wife's
refusal to permit him to see their three children.
Sentencing is not a science,
and I don't pretend to be better than anyone else at assimilating these and the
numerous other factors, both aggravating and mitigating, that legitimately bear
on an appropriate sentence. But I try my best to do just that, and by doing so
to do justice for the individual before me and for our community. In this case,
those efforts would have resulted in a prison term of 24 months, followed by a
five-year period of supervision with conditions including both other forms of
punishment (home detention and community service) and efforts to assist Vasquez
with the mental health, substance abuse, and anger management problems that
have plagued him, in some respects for his entire life. If he had failed to
avail himself of those efforts, or if, for example, he intentionally had
contact with Melendez without the prior authorization of his supervising
probation officer, he would have gone back
to jail on this case.
The mandatory minimum sentence in this case
supplanted any effort to do justice, leaving in its place the heavy wooden club
that was explicitly meant only for mid-level managers of drug operations. The
absence of fit between the crude method of punishment and the particular set of
circumstances before me was conspicuous; when I imposed sentence on the weak
and sobbing Vasquez on March 5, everyone present, including the prosecutor,
could feel the injustice.
Conclusion -- Judge Gleeson's words say it all:
In sum, though I am obligated by law to
provide a statement of "reasons" for each sentence I impose, in this case there was but one: I was forced by a law
that should not have been invoked to impose a five-year prison term.
The New York Law Journal reports today that: A state statute that permits stiffer sentences for "persistent"
felony offenders violates the constitutional rights of defendants to a
jury trial, the U.S. Court of Appeals for the Second Circuit ruled
today.
Citing a series of U.S. Supreme Court rulings, especially Blakely v. Washington, 542 U.S. 296 (2004), a three-judge panel
unanimously concluded the state scheme vested unconstitutionally broad
discretion in judges to set sentences.
"We hold that the Sixth Amendment right to a jury trial, applicable
to the states as incorporated by the Fourteenth Amendment, prohibits the
type of judicial fact-finding resulting in enhanced sentences under New
York's [Persistent Felony Offender] statute," Judge Ralph K. Winter
wrote for the panel.
Under New York's statute, defendants convicted of two previous
felonies who face sentences of a minimum of 15 years and a maximum of
life for conviction of a third felony are eligible for the persistent
designation.
Sentencing judges make the final decision based on an analysis of the
"history and character of the defendant and the nature and
circumstances of his criminal conduct." The statute, Penal Law §70.10,
also directs the judge to determine if a persistent felony offender
declaration would be in the public interest.
The statute does not link the penalty to a specific felony crime, as
the Penal Law does for first- or repeat-felony offenders.
In striking down a similar sentencing scheme in Blakely,
the U.S. Supreme Court held that "other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt." The Second Circuit's decision will be published tomorrow -- Watch for an update to this post. UPDATE: The Second Circuit's decision in Besser v. Walsh, No. 05-4375 (2d Cir. Mar. 31, 2010) can be found here. Here is the key paragraph:
We hold that the Sixth Amendment right to a jury trial, applicable to
the states as incorporated by the Fourteenth Amendment, prohibits the
type of judicial fact-finding resulting in enhanced sentences under New
York’s PFO statute. We also hold that this prohibition was not clearly
established until Blakely v. Washington, 542 U.S. 296 (2004).
Because Besser’s conviction became final before Blakely issued, the
state court decisions upholding his conviction were neither contrary to
nor an unreasonable application of clearly established federal law. We
therefore affirm the denial of the writ as to Besser. However, because
the relevant state court decisions upholding enhanced sentences for
Phillips, Morris, Portalatin, and Washington were issued after Blakely,
those decisions were not reasonable applications of clearly established
law. Nevertheless, we remand these cases to the district court for a
determination of whether the error was harmless.
United States v. Walker, 595 F.3d 441 (2d Cir. 2010) An important decision -- and one of first impression in the Second Circuit -- concerning the treatment of prior convictions as they relate to the Guidelines. Here is how the Second Circuit described its decision: This appeal presents a question of first impression in this circuit, namely the proper Sentencing Guidelines treatment of prior convictions for state common law crimes. For the reasons that follow, we hold that the modified categorical approach applicable in this circuit to prior convictions for statutory offenses also applies to prior convictions for state common law crimes. We also conclude that the district court correctly applied this approach in finding that appellant's prior South Carolina "strong arm robbery" conviction was a crime of violence under U.S.S.G. § 2K2.1(a)(2).
United States v. Buker, No. 09-1499-cr (2d Cir. Dec. 11, 2009) (found here) The defendant contentded on appeal that the district court improperly calculated his criminal history based in part on certain Canadian convictions. The district court, however, had not relied on his Canadian convictions in calculating his criminal history. Rather, it did (and was permitted) to consider those convictions when considering the defendant's "history and characteristics." Sometimes 18 U.S.C. 3553(a) can cut both ways.
United States v. Ramirez, No. 09 Cr. 751 (RWS), 2009 WL 4722237 (S.D.N.Y. Dec. 4, 2009) Ramirez was convicted of illegal re-entry after deportation following conviction for criminal sle of a crontrolled substance in the second degree, for which he faced an advisory Guidelines range of imprisonment of between 41 and 51 months. He was sentence, however, to only 18 months imprisonment because: (1) of the disparity in the sentences imposed for illegal re-entry cases in jurisdictions that have and that do not have fast-track programs; and (2) his advisory Guidelines range "double counts his criminal history, using his prior convictions not only to enhance his criminal history category but also to increase his offense level threefold." Indeed, the court noted that there's no sense in increasing a defendant's penalty "twice" based on prior criminal conduct -- a practice that is arbitrary.
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.
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. Ortiz-Portalatin, No. 08-CR-352 (JBW), 2009 WL 763355 (E.D.N.Y. March 13, 2009) Because the standards are looser, I've always been a big fan of criminal history downward departures. And it seems that Ortiz-Portalatin was a good candidate for earning one. His criminal history category was IV, and the Court recognized at sentencing that he "has a medical condition that may have contributed to his prior convictions for crimes committed prior to its diagnosis." Did defense counsel just not make the motion?
United States v. Hodges, No. 07-CR-706 (CPS), 2009 WL 366231 (E.D.N.Y. Feb. 12, 2009) In a decision apparently written for purposes of justifying the non-Guidelines sentence that the Court intended to consider at sentencing, Judge Sifton draws some smart conclusions concerning the imposition of non-Guidelines sentences, particularly in the context of a defendant who qualifies as a career offender. Hodges pled guilty to conspiracy to import an unspecified amount of heroin into the United States. Based on his offense and conduct, the Court determined that Hodges' offense level was 29. And based on his criminal history, Hodges qualified as a career offender -- in other words, criminal history category VI. The Guidelines range of imprisonment indicated was therefore 151 to 188 months. Having engaged in that Guidelines analysis, however, Judge Sifton set forth his Section 3553(a) analysis in order to impose a sentence sufficient, but not greater than necessary, as is required by Booker. With regard to criminal history, the Court noted that the Sentencing Commission "recognized the potential harm of overstating a defendant's criminal history and thus exposing the defendant to punishment far in excess of what may be necessary to deter recidivism." The Court acknowledged, though, that the Guidelines limit horizontal criminal history departures to one criminal history category for career offenders, even though some caselaw exists permitting additional departures under Section 5K2.0(b) of the Guidelines. But all of that predates Booker. As Judge Sifton found: Clearly, the Sentencing Commission intended that the sentencing court exercise discretion in determining the appropriateness of categorizing a defendant as a career offender, an intention echoed by the Second Circuit, and expected that the sentencing couert would reduce a defendant's range of pubnishment if the career offender designation were misplaced. In this case, defendant's label as a career offender is, in fact, misplaced.
More specifically, Judge Sifton noted that Hodges' is a drug addict who has suffered from multiple addictions throughout adolescence and much of his adult life, and that all of his criminal convictions arise from drug-related activity. He served ten years for a drug-related offense, was released in 1996 and, for ten years, worked and supported his family without any problems with the law. When his family situation deteriorated, however, he turned back to drugs and ultimately landed in Judge Sifton's courtroom. with regard to that history, the Court found that fact that his prior convictions stemmed from his drug use "does not provide a sufficient basis for a departure under the Guidelines." But, once again, Judge Sifton comes though, finding that "the Guideline prohibition against considering a defendant's drug addiction does not affect a sentencing court's authority to factor in remoteness of a defendant's convictions in determining whether he ought to be classified as a career offender."
There's a lot more in Hodges, and I encourage you to check it out (in particular, the description of Hodges background so far as it relates to several of the other Section 3553(a) factors). But, in sum, it represents nice work by a judge as I believe the Supreme Court expected of judges after Booker. And it represents nice work on behalf of the defense attorney, JaneAnne Murray (who also authors of New York Federal Criminal Practice Blog) in preparing what was obviously a comprehensive and persuasive sentencing package.
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