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Fact Considerations at Sentencing
United States v. Perez, No. 09-CR-629 (JBW), 2010 WL
2540952 (E.D.N.Y. June 17, 2010) Perez pled guilty to an illegal re-entry offense, for
which he faced an
advisory Guidelines range of imprisonment of between 21 and 27 months.
He was sentenced to time served (11 months).
Why? Other than his pre-trial detention: He has a wife and newborn child in Mexico. Violation of supervised release charges remaining pending against defendant relating to another offense, distinct from that before the court. Defendant continues to serve the term of supervised release stemming from that separate offense.
United States v. Rodriguez, No. 08-CR-332 (JBW), 2010 WL
2629823 (E.D.N.Y. May 28, 2010) Rodriguez pled guilty to a one-count indictment charging conspiracy to commit wire fraud, for
which he faced an
advisory Guidelines range of imprisonment of between 33 and 41 months.
He was sentenced to 6 months in prison. Why? "The defendant is a young man with a good work record and loving family. He is unsophisticated and played a relatively mechanical administrative role in the conspiracy." This case is a good example of using something that might form the basis of a Guidelines calculation (i.e., a minor role adjustment) as a basis for a non-Guidelines sentence as well.
United States v. Rojas, No. 09 Cr. 479 (RWS), 2010 WL 2303030 (S.D.N.Y. June 8, 2010) Rojas pled guilty to one count each of conspiracy to access device fraud, conspiracy to possess access device-making equipment, and conspiracy to effect transactions with one or more access devices to another person and to receive in excess of $1,000. He faced an advisory Guidelines range of imprisonment of 10 to 16 months, and received a sentence of 3 years probation. Why? Well, he was the "whole package" -- somewhat aberrant conduct, cooperation with authorities in the investigation, gainful employment, school, a family, etc. As described by the district court: The
instant offense occurred over the course of only a few months. When
Rojas was confronted by law enforcement officials, he cooperated
immediately and described in details, both orally and in writing, the
credit card scheme, the co-conspirators, and the location of the
machines used to make the counterfeit cards. The offense represents
Rojas's first criminal conviction. Rojas, the father of two young
children, is gainfully employed in the construction industry while
enrolled part-time in college. In addition Rojas has been in compliance
with the conditions of his bail. Finally, a home visit conducted by his
probation officer verified that the address of record is an appropriate
living environment, and therefore appropriate for home confinement. A
non-custodial sentence would allow him to continue with work and school,
as well as care for his family.
United States v. Kurland, No. 10 Cr. 69 (VM), 2010 WL 2267509 (S.D.N.Y. May 26, 2010) Kurland pled guilty to insider trading in what is known as the Galleon hedge-fund insider trading case. At sentencing, he moved for a finding that he was a minor-participant in his offense, a downward departure based on his "extraordinary physical impairment," and a non-Guidelines sentence based on on his contributions to family and the community. The court rejected all. And, in doing so, it had some choice words for Kurland -- words that reflect the attitude that white-collar defendants might well face in any case brought in today's economic environment. Here are some selections: In
coming to its sentencing decision, the Court has considered Mr.
Kurland's significant contributions to his family and to the larger
community. The letters from friends, family, and associates paint a
picture of the model citizen and family man; a man held in the highest
regard by those around him. The Court particularly notes Mr. Kurland's
involvment in his daughter's nonprofit organization, as well as his
generous donations to St. Christopher's School for Kids and other
charities. Today, Mr. Kurland's attorney reiterates the message
conveyed by the letters: that Mr. Kurland is known for his commitment
to philanthropy and the public good, kindness to friends, and devotion
to family. Unfortunately,
however, Mr. Kurland's presentation to the Court, though stressing
points that argue for uniqueness, distinction, and individual
consideration, is in fact not uncommon in the world of white collar
crime and has been made in this courtroom many times before. Mr.
Kurland urges the Court to consider that he has already shown full
rehabilitation and earned redemption; that there is absolutely no
likelihood of recidivism and thus no threat of future harm to society;
that no further need exists to punish him 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. Mr. Kurland argues that the
purposes of sentencing have already been satisfied, that a sentence of
incarceration would serve little or no useful purpose, and that
probation would be enough. Let
me stress at this point that the Court is not unmindful or
unsympathetic to these points. There is much in the Defendant's plea to
commend the compassion it seeks to evoke. But the argument, compelling
as it sounds on the surface, fails in 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 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
bodies in orbit, a special form of equilibrium, a proper balance in the
delicate symmetry of justice. . . . . In
the context of securities fraud, the whole range of harm caused cannot
be measured solely by the defendant's net losses or gains. By centering
entirely on effects on him, Mr. Kurland's calculus of injury improperly
discounts material harm his offense caused to larger societal
interests. Mr. Kurland's actions, stemming from a recognized leader of
the industry, compromised the financial market's integrity at a time of
financial crises and widespread concern about corruption, rampant
recklessness, and arrogant greed at the highest levels of the industry,
a culture of oblivion to the meaning of reasonable limits that
contributed significantly to bring about the worst economic collapse in
the country since the Great Depression. As has emerged from various
public investigations of the aftermath, those practices played a role
in the disintegration or bankruptcy of some of the most venerable
financial institutions and required government rescue efforts at a cost
of hundreds of billions of public dollars. It
is this Court's view of matters now common knowledge, that to some
extent this country's financial meltdown was fueled precisely by the
attitudes manifest by Mr. Kurland in this proceeding, and repeated by
defendants in other related cases. These offenders express a view that
forms a pattern: They minimize their conduct, they suggest that their
roles were really minor, that the gains they made were relatively
small, that others are more to blame for more culpable offenses, that
the markets were not really hurt, so that the offenses charged
essentially amount to victimless crimes. These
rationalizations are beside the point. Fundamentally they suggest a
perception that the law applies only to the other guy, and that what
are self-servingly dismissed as minor infractions have no cumulative
impact on the larger community, or indeed on the nation as a whole.
This view, if not effectively curtailed, can quickly deteriorate to a
philosophy in which moral bounds blur or disappear altogether,
engendering a reality in which everything is permitted. The real point
for Mr. Kurland here was that he had a choice. As a leader of the
financial industry, he could have led by law abiding example. Instead,
he chose to follow. He became a joiner, surrendering to the spree of
the financial market's virtual mob mentality that nearly brought down
this nation's economy in the quest for ever bigger and faster gains.
United States v. Cotto-Lopez, No. 08-5337-cr (2d Cir. June 1, 2010) (found here) In this little summary opinion, the Second Circuit provides potentially enormous grist for sentencing appeals. Cotto-Lopez pled guilty to conspiracy to distribute and possess with intent to distribute more than five kilos of cocaine. At sentencing, he argued for a mitigating role adjustment for his minimal or minor role in the conspiracy. After a short statement by the Government opposing the adjustment, the court stated simply that it "accept[ed] and adopt[ed] the factual recitations" and Guidelines calculations in the PSR, that it had considered the relevant statutory provisions and, finding "no reason to depart from the advisory sentencing guideline range," sentenced Cotto-Lopez to 87 months imprisonment. The Second Circuit was not satisfied with the district court's work. Specifically and "[d]espite the deference we accord to a district court's determinations pertaining to role adjustment," the Second Circuit still requires that district courts state their "findings with sufficient clarity to permit appellate review." In Cotto-Lopez's case, "the district court made no explicit finding that Cotto-Lopez was or was not a minor or minimal participant despite [his] substantial argument for such a finding." The Second Circuit reversed and remanded for resentencing ("after explicitly ruling on his argument for a mitigating role adjustment"). Most significantly for those with sentencing appeals, though, the Second Circuit went even further. In particular, it stated that the district court's "adoption of the PSR's findings cannot save the failure to make explicit findings on the record, because the PSR's own finding regarding Cotto-Lopez's role itself consisted of a bare conclusion without analysis or explanation." So, what does all this mean? For appellate counsel, it may provide another basis for sentencing appeals -- to wit, a failure by a district court to provide an explanation for a Guidelines calculation (assuming no explanation for same appears in the PSR). Presumably this principle could (does?) apply not only to role enhancements, but also to all other factors considered when calculating a defendant's advisory Guidelines offense level.
United States v. Alzate, No. 09-CR-669 (JBW), 2010 WL
1930186 (E.D.N.Y. May 10, 2010) Alzate pled guilty to a heroin importation offense, for
which he faced an
advisory Guidelines range of imprisonment of between 24 and 30 months.
He was sentenced to 15 months in prison. Why? "The defendant is a well educated individual who earns a good living and gives support to his children and mother when they require it."
United States v. Dorvee, Docket No. 09-0648-cr (2d Cir. May 11, 2010) (found here) In what amounts to a rare circumstance, the Second Circuit found that a 240 month sentence imposed on a defendant who pled guilty to one count of distribution of child pornography was substantively unreasonable. (The Second Circuit also found the sentence procedurally unreasonable because of an error in the calculation of the defendant's advisory Guidelines offense level.) More specifically, the Second Circuit found the sentence substantively unreasonable for the following reasons. First, the court was "troubled by the district court's apparent assumption that Dorvee was likely to actually sexually assault a child, a view unsupported by the record evidence yet one that plainly motivated the court's perceived 'need to protect the public from further crimes of the defendant.'" This assumption caused the district court to place undue weight on this sentencing factor. Second, the district court's "cursory explanation of its deterrence rationale ignored the parsimony clause." Specifically, the "district court provided no reason why the maximum sentence of incarceration was required to deter Dorvee and offenders with similar history and characteristics." Moreover, the district court "offered no clear reason why the maximum available sentence, as opposed to some lower sentence, was required to deter an offender like Dorvee." Finally, the Second Circuit was also "troubled that the district court seems to have considered it a foregone conclusion that the statutory maximum sentence 'probably [would] be upheld' on appeal, apparently because it concluded that its sentence was 'relatively far below' the initial Guidelines calculation of 262 to 327 months." The facts of Dorvee may make its substantive unreasonableness determination limited. Indeed, the Second Circuit recognized that the district court's errors "were compounded by the fact that the district court was working with a Guideline that is fundamentally different from most and that, unless applied with great care, can lead to unreasonable sentences that are inconsistent with what 3553 requires." Still, it is worth reading (and relying upon) because it provides a road-map and insight to those who are arguing substantive unreasonableness on appeal, particularly as regards the Second Circuit's references to the parsimony clause. It's well worth checking out in full.
United States v. Hernandez, Docket No. 09-1421-cr, 2010 WL 1780364 (2d Cir. May 5, 2010) Remember United States v. Ray? That was the case in which the Second Circuit declared that a fifteen year delay in re-sentencing violated a defendant's right to speedy sentencing. Hernandez is similar in that there was also a fifteen year delay between a remand for re-sentencing and the actual re-sentencing. In reversing and remanding for re-sentencing yet again, though, the Second Circuit did not rely on Ray and the speedy sentencing principle (perhaps because Ray was decided after briefing on Hernandez's appeal). Rather, it relied on the district court's procedural error in failing to consider Hernandez's intervening rehabilitation (and took the unusual step of remanding the matter to a different district court judge for re-sentencing). As described by the Second Circuit: Defendant-appellant Hector Hernandez appeals from a judgment entered in the United States District Court for the Eastern District of New York (Platt, J.) in 2009, which re-imposed a 405-month sentence of incarceration after remand from this Court back in 1993. The record indicates that the district court evidently started with an assumption -- invalid after so long an interval -- that the baseline for the re-sentencing was the sentence imposed in 1991, and thereby failed to properly consider the factors set out in 18 U.S.C. ยง 3553(a) -- particularly Hernandez's submission of evidence of rehabilitation -- at the time of re-sentencing. Accordingly, we vacate and remand for re-sentencing before a different district court judge.
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