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.

Notwithstanding Brushes With The Law Both Before And After Arrest, Non-Guidelines Sentence For "Earnest Attempts" To Improve Relationships And Professional Skills

United States v. Atabayev, No. 09-CR-455 (JBW), 2010 WL 17279089 (E.D.N.Y. April 9, 2010)

A co-defendant of the case described below, Atabayev also pled guilty to having conspired to possess with intent to distribute MDMA, for which he faced an advisory Guidelines range of imprisonment of between 12 and 18 months.  He was sentenced to five years probation.   Why?  

The instant offense is a serious one, and the court is disturbed by defendant's other brushes with the law, both prior to his arrest for the instant offense and during his period of pre-trial supervision.  The defendant's intelligence and his earnest attempts to improve family and other relationships and to develop his professional skills reflect a good possibility that he can overcome his adverse background.

Probation Because Defendant To Be Re-Deployed To Iraq

United States v. Rhodes, No. 08-CR-806-02 (JBW), 2010 WL 1254106 (E.D.N.Y. March 29, 2010)

Rhodes 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,  for which he faced an advisory Guidelines range of imprisonment of between 27 and 33 months.  He was sentenced to three years probation.  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.  Defendant has a good work record and an excellent record in the United States Army.  He has served with the army in Iraq, and is presently scheduled to be re-deployed to Iraq.

Sick Wife and Rehabilitation = Non-Guidelines Sentence

United States v. Saines, No. 07-CR-522 (JBW), 2009 WL 1851003 (E.D.N.Y. June 29, 2009)

Short Note:

Saines pled pled guilty to a single-count information charging a structuring offense, for which he faced an advisory Guidelines range of 24 to 30 months imprisonment.  He was sentenced to 3 years probation..

Why?  "While the offense is serious, the defendant has demonstrated rehabilitation during the previous two years of supervision.  His presence at home will allow him to continue to care for his wife, who is severely ill."

United States v. Saines, No. 07-CR-522 (JBW), 2009 WL 1851003 (E.D.N.Y. June 29, 2009)

Short Note:

Saines pled pled guilty to a single-count information charging a structuring offense, for which he faced an advisory Guidelines range of 24 to 30 months imprisonment.  He was sentenced to 3 years probation..

Why?  "While the offense is serious, the defendant has demonstrated rehabilitation during the previous two years of supervision.  His presence at home will allow him to continue to care for his wife, who is severely ill."

Post-Offense Rehabilitation (And Cooperation) Result In Wide Variance

United States v. Cadle, No. 04-CR-750 (JBW), 2009 WL 1764980 (E.D.N.Y. June 11, 2009)

Short Note:

Cadle pled guilty to conspiring to import cocaine into the United States, an offense for which she faced an advisory Guidelines range of 37 to 46 months imprisonment.  She cooperated with the Government, and received a 5K1.1 Letter.  And she was sentenced to three years probation.

Why?  "The offense took place almost five years prior to this sentencing.  The defendant's actions since that time demonstrate significant rehabilitation.  Cadle has pursued an education and devoted herself to her family responsibilities.  Her cooperation with the government was robust and helped lead to the conviction of a major cocaine trafficker."

Non-Guidelines Sentence As The Best Means For Fulfilling Restitution Order

United States v. Villela, No. 07 Cr. 287-02 (RWS), 2007 WL 2845290 (S.D.N.Y. Sept. 25, 2007)

Villela, a Brown University graduate, pled guilty to one count of tax evasion.  Based on a total offense level of 12 and a criminal history category if I, the court concluded that the applicable Guidelines offense level was 12, indicating a range of imprisonment of between 10 and 16 months.  The court, however, imposed a non-Guidelines sentence of 60 months probation.  Why?  Simply put, the Probation Department recommended that probationary sentence, and the court found that Villela had "been convicted of a non-violent crime and has no prior criminal record.  Furthermore, his continued employment will aid in the collection of restitution payments to the victims of the offense."

Villela points up an argument that I have always found persuasive and that has been successful in persuading courts in this post-Booker era to impose non-Guidelines sentences on offenders convicted of non-violent, economic crimes -- to wit, the best means for making the victims whole is a non-custodial sentence.  Restitution should be the court's primary concern in fraud-type cases, and non-Guidelines sentences are often the best means for achieving same (particularly for offenders who have low Guidelines offense levels -- it's a more difficult goal to achieve in large-scale frauds involving losses in the millions).

Non-Guidelines Sentence Of Probation Affirmed As Reasonable

United States v. Hawkins, No. 05-4913-cr (2d Cir. April 30, 2006) (found here)

Hawkins pled guilty to one count of conspiracy to commit health care fraud and mail fraud, and faced an advisory Guidelines range of 12-18 months.  At sentencing, the district court (Judge Weinstein) sentenced Hawkins to three years probation.  In doing so, the district court: (1) downwardly departed based on a finding of extraordinary rehabilitation; and (2) alternatively found that a sentence of three years probation was an appropriate non-Guidelines sentence based on the 18 U.S.C. § 3553(a) factors.  Thus, the Second Circuit found that any error in the district court's downward departure analysis was harmless (to the extent that there was error) because the district court also indicated that the sentence imposed was supported as a non-Guidelines sentence by the factors set forth in 18 U.S.C. § 3553(a):

We find that the district court properly discharged its statutory duty to consider the Section 3553(a) factors and explain its reasons for imposing a non-Guidelines sentence of probation.  The resulting sentence is neither procedurally nor substantively unreasonable.

Sentence For Probation Violation Vacated And Remanded Where District Court Erred In Admitting Hearsay

United States v. Bernadel, No. 06-3940-cr (2d Cir. April 25, 2006) (found here)

Rule 32.1(b)(2)(C) provides that a person charged with a probation violation "is entitled to . . . question any adverse witness unless the court determines that the interest of justice does not require the witness to appear."  The Second Circuit, in turn, held in United States v. Williams, 443 F.3d 35 (2d Cir. 2006) that in a probation-revocation hearing: (1) neither the Due Process Clause nor Rule 32.1 obliges a district court to perform a good-cause analysis with respect to a proffered out-of-court statement admissible under an established hearsay rule exception; but that (2) a court is "require[d] to determine whether good cause exists to deny the defendant the opportunity to confront the adverse witness" if no such exception exists.

In Bernadel, the district court relied on a probation officer's hearsay statements concerning probation violations in sentencing Bernadel to ten months imprisonment and two years of supervised release for an alleged probation violation.  The Second Circuit, however, found that no hearsay rule exception existed for admitting that probation officer's testimony and that the district court, thus, "erred in failing to make a finding of good cause before admitting the probation officer's testimony."  Thus, the Second Circuit vacated the district court's judgment and remanded the case for further proceedings consistent with its direction.

Rattoballi Cuts Both Ways: Second Circuit Reverses Above-Guidelines Sentence

United States v. Sindima, Docket No. 06-2245-cr, 2007 WL 642592 (2d Cir. March 5, 2007) (found here)

Sindima was sentenced to three years probation following a guilty plea on federal mail fraud charges -- a sentence that was within Sindima's Guidelines range of 0-6 months imprisonment.  While on probation, Sindima allegedly committed certain offenses that violated the terms of his probation.  The district court calculated Sindima's Guidelines range for that probation violation at 4-10 months imprisonment, but sentenced him to 36 months imprisonment -- below the statutory maximum 60 months imprisonment for his underlying offense but more than 3.5 times higher than the high-end of the advisory Guidelines range for his probation violation.

Why the harsh sentence?  Well, first, the district court found that Sindima had engaged in "egregious conduct" despite being given a "substantial break" at the time of his original sentencing.  The Second Circuit, however, found that the district court's consideration of the underlynig offense was improper because that conduct is only to be considered to a limited degree -- "sentences for probation violations are not intended to substitute for sentences resulting from commission of the crime constituting the violation."  Instead, "at revocation the court should sanction primarily the defendant's breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator."  (The Second Circuit never noted that the "break" was not so substantial given his original Guidelines range of 0-6 months imprisonment.)  Second, the Second Circuit considered Sindima's personal characteristics "only with regard to its initial inclination to sentence Sindima to the statutory maximum penalty."  The error here is that the district court worked down from the statutory maximum of 60 months imprisonment based on Sindima's personal characteristics, rather than using the advisory Guidelines range of 4-10 months imprisonment as a "starting point for the district court's analysis."

So, where did this leave the Second Circuit?  Relying on Rattoballi (discussed and critiqued here), it found that "on the present record, we are not confident that the grounds upon which the district court relied are 'sufficiently compelling [and] present to the degree necessary to support the sentence imposed." 

Rattoballi -- the double-edged sword.

Another Above Guidelines Sentence Affirmed As Reasonable

United States v. Pierre, No. 05-6629 (2d Cir. Sept. 22, 2006) (found here)

A quick note on an above-Guidelines sentence affirmed as reasonable, albeit in a slightly different context.

Pierre violated the terms of his probationary sentence and was sentenced to two years imprisonment for that violation -- notwithstanding that the Government and the advisory Guidelines revocation table (Section 7B1.4(a)) called for a sentence of between three and nine months.  The Second Circuit affirmed the two year sentence as "substantively reasonable" in light of the district court's findings, including that it had already afforded Pierre substantial lenience and that Pierre had demonstrated a total lack of respect for the law as well as a pattern of criminality.  The court also noted Pierre's cognitive and psychological limitations, "but found that this circumstances did not explain or excuse the extent of his failure while on probation."

Although likely warranted here, the affirmance of this above-Guidelines sentence is consistent with the discouraging nationwide pattern of reversing below-Guidelines sentences as unreasonable and affirming above-Guidelines sentences as reasonable.

As an aside, the Second Circuit noted in an unusual footnote that "[a]lthough it is not this Court's role to determine where Pierre is held during the term of his incarceration, we hope that efforts are made to ensure that he is in a facility that provides the mental and vocational services he clearly needs."  Query whether the BOP will ever receive this message from the Second Circuit.