A Pair Of Non-Guidelines Sentences For A Pair Of Corrections Officer

United States v. Gray, No. 08-CR-806-03 (JBW), 2010 WL 1221762 (E.D.N.Y. March 29, 2010)

Gray pled guilty to making a false entry in a record and document with the intent to impede, obstruct or influence the investigation by the DOJ and a Section 1001 violation, for which he faced an advisory Guidelines range of imprisonment of between 27 and 33 months.  He was sentenced to six months imprisonment.  Why? 

The offenses of obstruction of justice and false statement were serious.  Defendant participated in the cover-up of improper treatment of an inmate.  As a corrections officer, he held a position of public trust.  He should have prevented or reported the incident he witnessed.  Other than offenses of conviction, defendant appears to have led a law-abiding life.  He has a good work history.

United States v. Wells, No. 08-CR-806-01 (JBW), 2010 WL 1221766 (E.D.N.Y. March 29, 2010)

Wells was convicted of several obstuction of justice related offenses, for which he faced an advisory Guidelines range of imprisonment of between 27 and 33 months.  He was sentenced to a year-and-a-day.  Why?  

The offenses of conviction, including obstruction of justice and corrupt persuasion, are serious.  Wells was a leader who rose to a position of authority after a long career in the New York City corrections system.  He earned the respect of his fellow corrections officers and those under his supervision.  The victim, an inmate, was in a position of unique vulnerability and defenselessness.  The offenses were an abuse of defendant's position of authority and public trust, and a failure of leadership.  In light of defendant's strong background and work history, this appears to have been aberrant behavior.

Second Circuit Criticizes A Somewhat Unsympathetic Sentencing Decision

United States v. Marino, No. 08-0615-cr (2d Cir. Feb. 17, 2009) (found here)

Dan Marino worked for hedge fund swindler Samuel Israel.  He pled guilty for his involvement in that massive fraud, and entered into a cooperation agreement with the Government.  The Guidelines recommended a 50 year term of imprisonment.  The district court sentenced him to 20 years.  Marino appealed, arguing that his sentence was both procedurally and substantively unreasonable.  While the Second Circuit affirmed the sentence, it issued some pretty strong language concerning the district court's sentencing decision.  Here's what it had to say:

We pause to note that we might ourselves have given greater weight than apparently did the district court to Marino's plight -- his almost complete deafness and accompanying sense of loneliness, his lack of self-esteem, his bouts with cancer, his apparent fear of and deference to Israel -- and his assistance to the government detailed in its "5K1 Letter" (noting his aid to the government in understanding the fraud, his immediate contrition and taking of responsibility upon discovery, and his contribution to the guilty pleas of his co-conspirators).  But it is not for us to substitute our judgment for that of the district court, whose sentence was procedurally and substantively proper.

I fear that the fact that the Second Circuit came close to, but ultimately did not, reverse the sentence for substantive unreasonableness will only further weaken the opportunities for and possibility of any reversal based on substantive unreasonableness.  And that begs the questions: What is substantive unreasonableness?  What circumstances qualify for a finding of substantive unreasonableness?

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." 

The Power Of Cooperation

United States v. Baum, No. 04-CR-508 (JBW), 2007 WL 3274894 (E.D.N.Y. Oct. 30, 2007)

Baum was convicted of very serious weapons and narcotics offenses, and had a long criminal history.  According to the district court, the minimum statutory sentence Baum could receive was 10 years for one offense and a consecutive term of 7 years for another offense, for a total of 17 years or 204 months.  But the court sentenced him to a mere one day of incarceration.

Wow.  Now, granted, Baum had already been incarcerated for 4 years.  But his cooperation was truly extraordinary.  He provided information concerning six murders, including those of his two brothers.  He freely admitted to the facts concerning one of his offenses of conviction, even though the Government had no prior knowledge or information concerning those activities.  And he was incarcerated for those 4 years in the same correctional facility as his brothers' killers, where he himself was under constant threat.

Defense attorneys likely will not often face such unique circumstances.  But Baum is important to the extent it can be relied on as a basis for a quite significant departure for quite significant cooperation.  In other words, defendants can have at least some hope that cooperation will result in a significantly reduced sentence, even if the Guidelines starting point is quite high.

Extreme Vulnerability To Abuse In Prison

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).