Aberrant Conduct Results In Significant Non-Guidelines Sentence

United States v. Mack, No. 08-CR-806 (JBW), 2010 WL 3282648 (E.D.N.Y. Aug. 18, 2010)

Mack, a corrections officer, was convicted by a jury of attempting to use intimidation and corruptly persuade another corrections officer, with intent to hinder, delay and prevent communication to a law enforcement officer of the United States, of information relating to the commission and possible commission of a federal offense, in violation of 18 U.S.C. § 1512(b)(3).  She faced an advisory Guidelines range of imprisonment of between 27 and 33 months.  She  was sentenced to 5 years probation.  Why? 

The offense is a serious one.  Defendant sought to work a substantial subversion of justice.  Prior to this offense, she had a long record of good conduct, including an excellent work record and some advanced education.  She has strong relationships with a very supportive family, and her siblings and mother are hard-working people who have performed highly useful and important jobs in the civil service and related areas.  The offense appears to be an aberration in defendant's conduct.  The victim of this incident has already received some compensation from a court settlement; the need for restitution to the victim is not a substantial factor.  Defendant has lost her position as a result of this conviction and is currently unemployed.  She will suffer substantially from not being able in the future to work in her chose[n] field.

Double Counting And "Significant Physical Injury"

United States v. Reyes, Docket No. 06-3699-cr (2d Cir. Feb. 19, 2009) (found here)

Reyes pled guilty to one count of assault resulting in serious bodily injury in aid of a racketeering activity, in violation of 18 U.S.C. § 1959(a)(3).  At sentencing, the district court determined the advisory Guidelines range was 92 to 155 months based in part based on a 6 level enhancement pursuant to U.S.S.G. § 2A2.3(b)(3)(C) for permanent or life-threatening injury.  The district court also departed upward pursuant to U.S.S.G. § 5K2.2 based on the seriousness of that injury, which was apparently pretty darned serious.  Reyes was therefore sentenced to 180 months imprisonment.

On appeal, Reyes contended that the district court's upward departure amounted to impermissible double counting, and that his sentence was therefore unreasonable.  The Second Circuit rejected the argument.  It found that Reyes had not identified any passage in either the Guidelines or a statute that reflects a legislative intent to preclude application of both Sections 2A2.2(b)(3)(C) and 5K2.2 of the Guidelines.  Moreover, the Second Circuit found that although both sections address severe injuries, "they are not identical" and can apply in different circumstances.  Thus, the Second Circuit found that "[a]fter Booker, assuming the sentence is not based on a misunderstanding of the Guidelines, we will vacate a sentence only if it is unreasonable.  In this case, the District Court correctly understood the Guidelines, and the sentence is not unreasonable."