United States v. Rajotte, No. 05-3988, 2006 WL 616314 (2d Cir. March 10, 2006)
Rajotte is an unexceptional affirmance of a 135 month narcotics-related sentence imposed by Judge Kaplan in the United States District Court for the Southern District of New York. The reference by the Second Circuit to a ground upon which Rajotte sought a downward departure from the district court, however, provides an opportunity for: (1) a refresher course in that downward departure ground -- extreme vulnerability to abuse in prison, which was recognized by the Second Circuit in United States v. Lara, 905 F.3d 599 (2d Cir. 1990); and (2) the legal basis for that downward departure ground -- a combination of factors that might not otherwise be relevant at sentencing but the presence of which in combination presents a situtation that may be relevant at sentencing. Indeed, this analysis is important in the post-Booker world, where district courts are authorized not only to depart downward but also to impose non-Guidelines sentences.
In Lara, the defendant Lara was found guilty in a non-jury trial of certain narcotics offenses. At sentencing, the district court -- without reference to the then mandatory Guidelines -- sentenced Lara to the 5 year mandatory minimum sentence. The Government appealed, and the Second Circuit reversed and remanded, instructing the district court to sentence Lara in accordance with the Guidelines. At resentencing, defense counsel sought a downward departure from the applicable Guidelines range premised on Lara's "potential for victimization." It seems that Lara was a "delicate looking young man . . . with a certain sweetness about him," who had been victimized "as a consequence of his diminutive size, immature appearance and bisexual orientation." The Government argued that these circumstances were not a valid basis for a downward departure. The district court rejected the Government's argument, and departed downward.
On appeal, the Second Circuit affirmed the district court's sentence. In doing so, the Second Circuit made numerous observations concerning the asserted ground for a downward departure. First, the Second Circuit noted that the district court had not relied on the defendant's age as a basis for the departure. Rather, the district court had "merely observed that Morales 'looks 16,'" thereby reflecting that the district court "considered the defendant's immature appearance, not his chronological years." Second, the Second Circuit noted that the district court had not departed "on account of defendant's homosexual orientation." Instead, the district court had considered "Morales' sexual orientation, not as a separate characteristic meriting departure, but as it related to his vulnerability." Finally, the Second Circuit held that to "the extent that the district court relied upon the defendant's physical, mental and emotional condition in finding him particularly vulnerable to victimization, it adhered to the Commission's admonition that these factors are not ordinarily relevant in determining whether a sentence should be outside the guidelines. The Commission's language acknowledges the propriety of considering these factors when, in the sentencing judge's view, they present an extraordinary situation."
The lesson of Lara is two-fold. First, there is a ground out there for a downward departure or a non-Guidelines sentence if a defendant would be unusually vulnerable to abuse if incarcerated. I suspect that sexual orientation may not be the only circumstance that would present as extreme vulnerability. Second, a combination of factors that are not ordinarily relevant at sentencing may, under certain circumstances, combine to present an extraordinary situation. In this regard it is important to distinguish between the factors themselves (which may not be relevant at sentencing) and the circumstances present because of the presence of those factors (which may be highly relevant at sentencing).