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United States v. Goltson, No. 09-CR-461 (JBW), 2010 WL 4032399 (E.D.N.Y. Oct. 13, 2010)
Goltson pled guilty to a lesser-included offense within a single-count indictment charging him with conspiring to distribute and possess with intent to distribute cocaine base, for which he faced an advisory Guidelines range of imprisonment of between 57 and 71 months (inclusive of safety-valve and acceptance of responsibility adjustments). Goltson was sentence to time served (18 months). Why:
The offense of conspiracy to distribute and possess with intent to distribute is serious. As a child, Goltson was abused by his father, a heroin addict, and was raised in conditions of severe poverty. He suffers from depression and a severe learning disability, and he has received no education beyond middle school. Goltson has three children: two young daughters and a son in middle school. He remains close to his family and has been offered housing and employment by relatives. Because the defendant has already served eighteen months, a sentence of time served reflects the seriousness of the offense and will promote respect for the law and provide just punishment.
United States v. Vasquez, No. 09-CR-259 (JG), 2010 WL 1257359 (E.D.N.Y. March 30, 2010) When people think about miscarriages of justice, they generally think big, especially in this era of DNA exonerations, in which wholly innocent people have been released from jail in significant numbers after long periods in prison. As disturbing as those case are, the truth is that most of the time miscarriages of justice occur in small doses, in cases involving guilty defendants. This makes them easier to overlook. But when they are multiplied by the thousands of cases in which they occur, they have a greater impact on our criminal justice system than the cases you read about in the newspapers or hear about on 60 minutes. This case is a good example.
Wow. That's a helluva an opening paragraph for a sentencing opinion. Let's delve deeply into the case to see what precipitated the Judge Gleeson to write it. As the reader will see, Judge Gleeson has some strong opinions concerning mandatory minimum sentences and the means by which they cast too broad a net. And he has a few choice words for the prosecutors who use them. Background Concerning the Defendant -- Vasquez, age 36 was born in Puerto Rico, the youngest of 12 children. He
had no relationship with his father, who died when he was four or five years
old. He did, however, have a relationship with one of his many older brothers
that was especially damaging. From the age of seven, Vasquez was sexually abused
repeatedly by this brother, and as a result he struggled with depression
his entire life.
Vasquez dropped out of high school in the
ninth grade. By his early twenties, he had acquired some expertise in fixing
cars and trucks. He had also acquired a cocaine addiction. In approximately
1994, he commenced a turbulent ten-year relationship with Ingrid Melendez,
with whom he had three children. During that period, he suffered from multiple
bouts of depression. When the relationship ended in 2004 due to Melendez's
infidelity, Vasquez attempted suicide. He spent two months in Bellevue
Hospital, where he received medications for depression and bi-polar disorder. Other than the drug trafficking that got him
convicted in this case (described below) Vasquez's entire criminal
history stems from his relationship with Melendez. In December of 2004, after
his release from Bellevue, she refused to let him see their children. He
reacted by menacing her with a knife in front
of the children. Though he was given a conditional discharge, he failed to
abide by the conditions; six months later he violated an order of protection by
threatening to kill Melendez. This conduct got Vasquez 60 days in jail on the
earlier menacing case and 60 more for contemptuously violating the order of
protection. A year later, in June of 2006, Vasquez once again showed up at
Melendez's home without permission. He was convicted of harassment and given
another conditional discharge. In 2005, Vasquez met Maritza Caraballo, a bank
teller. They lived together and enjoyed a stable relationship until March 25,
2009, when Vasquez was arrested in this case. They have a three-year-old
daughter, and Carabello's eight-year-old daughter from a prior relationship
also lives with them. Vasquez worked continuously during that period, first as
an auto mechanic, then, beginning in 2007, as a construction supervisor.
Vasquez and Caraballo are engaged to be married in June. Melendez continued to deny Vasquez access to
their three children. Caraballo reports that this produced an extremely
stressful situation for Vasquez, who was complying with his court-ordered child
support obligations to those children. Though Vasquez had stopped using drugs
after he met and began living with Caraballo, under the mounting stress of his
situation with Melendez and their children, he finally relapsed in 2008, when
he began using cocaine again. That development laid the groundwork for his
involvement in his offense of conviction. To support his expensive cocaine
habit, Vasquez went to work in approximately September of 2008 for one of his
older brothers, Jose Angel Vasquez, a drug dealer and his co-defendant in this
case. Unfortunately for both of them, the government was intercepting the
telephone calls of members of Jose Vasquez's business. Those calls identified
the defendant as a minor participant in his brother's organization. More
specifically, "[t]he government's investigation revealed that, for the
most part, the defendant was a street-level distributor for his brother's
organization, with only occasional and minor participation in the
organization's broader activities." In the six to eight months
he was involved in the business to support his habit, Vasquez personally assisted
in the distribution of 300 grams of heroin. He was aware of the distribution of
350 additional grams by others, so he was responsible under the Guidelines for 650 grams.
After his arrest, Vasquez tried to cooperate
with the government. He provided information about two individuals, but it
could not be corroborated. As the prosecutor stated when Vasquez first appeared
for sentencing on December 29, if he "had more information, he would have
received a" substantial assistance motion.
The Charge -- According to Judge Gleeson, the Government basically overcharged Vasquez. Specifically:
The
government had it within its power to charge Vasquez with a standard drug trafficking charge, which carries a maximum
sentence of 20 years. Instead, it included him in a conspiracy charge with his
brother and three others and cited to a sentence-enhancing provision that
carries a maximum of life in prison and a mandatory minimum of ten years upon
conviction. During plea negotiations, the government refused to drop that
charge unless Vasquez pled guilty to a lesser-included sentencing enhancement
that carried a maximum of 40 years and a mandatory minimum of five years.
The Effect of the Drug Sentencing Laws on Vasquez -- According to Judge Gleeson, the drug laws (on which he provides excellent background) have a dramatic impact on Vasquez. As described by the Court:
The second result of this regime is placed in
clear relief by this case. I f they want to, prosecutors can decide that
street-level defendants like Vasquez--the low-hanging fruit for law enforcement--must
receive the harsh sentences that Congress intended for kingpins and managers,
no matter how many other factors weigh in
favor of less severe sentences. The government concedes, as it must, that Vasquez
played a minor role in his brother's modest drug operation, not the
mid-level managerial role the five-year mandatory sentence was enacted to
punish. Indeed, the government argues that Vasquez's guidelines computation
includes a two-level downward adjustment because of his mitigating role
in the offense. See U.S. Sentencing Guidelines Manual 3B1.2(5). Yet, by the simple act of invoking the sentence-enhancing
provision of the statute, the government has dictated the imposition of the
severe sentence intended only for those with an aggravating role.
What's a Judge to Do? At sentencing, the Court took an activist role, expressing displeasure with the Government's position and asking the Government to reconsider that position. Ultimately, the Government refused, leading to a none-to-happy Judge Gleeson.
Specifically: When
the case was first called for sentencing in December, I pointed out the
obvious: the five-year mandatory sentence in this case would be unjust. The
prosecutor agreed, and welcomed my direction that she go back to the United
States Attorney with a request from the Court that he withdraw the aspect of
the charge that required the imposition of the five-year minimum. She asked for
a couple of months to make the case that the sentence enhancement should be
abandoned. On March 5, 2010, the prosecutor appeared
again, shadowed by a supervisor. She reported that the United States Attorney
would not relent. She offered two reasons. The first was that I might have
failed to focus on the fact that Vasquez had "received a bump down,"
meaning he was allowed to plead to the five-year mandatory minimum rather than
to the ten-year mandatory minimum that he,
his brother, and three other co-defendants were originally charged with. I think this means that Vasquez should be grateful the
government did not insist on a ten-year minimum sentence based on additional
quantities of cocaine it concedes he knew nothing about and could not be held
responsible for under the guidelines, presumably on the theory that
other members of the same conspiracy dealt those quantities. I suppose there is some consolation
in the fact that the government did not pursue that absurd course, which would
have produced an even more egregious injustice if Vasquez had been convicted.
But that hardly explains, let alone justifies, the government's insistence on
the injustice at hand. Second, the prosecutor suggested that I had
failed to "focus" on the seriousness of Vasquez's crimes against his
ex-wife, Melendez. Implicit in that assertion is the
contention that even if Vasquez does not deserve the five-year minimum because
he was not a mid-level manager of a drug enterprise, he deserves it because of
his past crimes. This rings especially
hollow. Those past crimes have been front and center at all times, not only
because they render Vasquez ineligible for safety valve relief from the minimum
sentence, but also because there was litigation over how many
criminal history points they warranted. When Vasquez first appeared for
sentence on December 29, both of these subjects were discussed. And when the prosecutor took the position that the
criminal history points produced by Vasquez's past crimes overstated the
gravity of those crimes, warranting a downward departure, it did not appear she
had failed to focus on their seriousness either. In any
event, I certainly had not.
I recognize that the United States Attorney is
not required to explain to judges the reasons for decisions like this one, and
for that reason I did not ask for them. But the ones that were volunteered do
not withstand the slightest scrutiny.
The Sentence and the Explanation for the Sentence -- Judge Gleeson was none-too-pleased with having to impose a 5 year mandatory minimum sentence. Indeed, he viewed it as one of those "small injustices" that he described in the opening paragraph of his sentencing opinion. As the Court explained (I've added some paragraph breaks for ease of reading):
As a result of the decision to insist on the five-year mandatory minimum, there
was no judging going on at Vasquez's sentencing. Though in theory I could have
considered a sentence of greater than 60 months, even the prosecutor recognized
how ludicrous that would be, and asked for a 60-month sentence. But the
prosecutor's refusal to permit consideration of a lesser sentence ended the
matter, rendering irrelevant all the other factors that should have been
considered to arrive at a just sentence.
The defendant's difficult childhood and lifelong struggle with
mental illness were out of bounds, as were the circumstances giving rise to his
minor role in his brother's drug business (i.e., it was to support an
addiction, not to become a narcotics entrepreneur with a proprietary stake in
the drugs), the fact that he tried to cooperate but was not involved enough in
the drug trade to be of assistance, the effect of his incarceration on his
three-year-old daughter and the eight-year-old child of Caraballo he is raising
as his own, the fact that he has been a good father to them for nearly five
years, the fact that his prior convictions all arose out of his ex-wife's
refusal to permit him to see their three children.
Sentencing is not a science,
and I don't pretend to be better than anyone else at assimilating these and the
numerous other factors, both aggravating and mitigating, that legitimately bear
on an appropriate sentence. But I try my best to do just that, and by doing so
to do justice for the individual before me and for our community. In this case,
those efforts would have resulted in a prison term of 24 months, followed by a
five-year period of supervision with conditions including both other forms of
punishment (home detention and community service) and efforts to assist Vasquez
with the mental health, substance abuse, and anger management problems that
have plagued him, in some respects for his entire life. If he had failed to
avail himself of those efforts, or if, for example, he intentionally had
contact with Melendez without the prior authorization of his supervising
probation officer, he would have gone back
to jail on this case.
The mandatory minimum sentence in this case
supplanted any effort to do justice, leaving in its place the heavy wooden club
that was explicitly meant only for mid-level managers of drug operations. The
absence of fit between the crude method of punishment and the particular set of
circumstances before me was conspicuous; when I imposed sentence on the weak
and sobbing Vasquez on March 5, everyone present, including the prosecutor,
could feel the injustice.
Conclusion -- Judge Gleeson's words say it all:
In sum, though I am obligated by law to
provide a statement of "reasons" for each sentence I impose, in this case there was but one: I was forced by a law
that should not have been invoked to impose a five-year prison term.
United States v. Santano, No. 07-CR-874 (JBW), 2009 WL 1956227 (E.D.N.Y. July 6, 2009)
Short Note: Santano pled guilty to a narcotics offense. Although he did not initially qualify for safety valve relief, he ultimately did. And the Court determined that he faced a Guidelines range of 87 to 108 months imprisonment. He was ultimately sentenced, however, to 37 months imprisonment.
Why? "The offense is serious. The defendant was a member of a gang that disturbed the peace and threatened the safety of a public housing project. He was extremely young during the time of his involvement in this drug sales operation. He has the benefit of considerable support from his family, who expressed that they are moving to a different community to assist in Santano's continued rehabilitation and reintegration into society. His former employer indicated that Santano is a talented barber and would have a job in his shop available to him upon his release. He is an intelligent individual who appears capable of leading a productive, law-abiding life."
United States v. Smith, No. 08-CR-545 (JBW), 2009 WL 971682 (E.D.N.Y. April 2, 2009) How do you get from a five year mandatory minimum sentence and an advisory Guidelines range of 37 to 46 months down to a sentence of only a year and a day? The safety valve, of course. Also, it doesn't hurt that you've got a nice sentencing story and a couple of bucks to forfeit: The defendant is intelligent and thoughtful, and he has taken responsibility for his criminal acts. He has a loving family that will support him in leading a lawful life moving forward. Given the defendant's long history of involvement with drugs as well as his past problems with alcohol and gambling, treatment will be critical in his rehabilitation; he has expressed his intent to take full advantage of those programs. He agreed to forfeit all the drug proceeds -- nearly a quarter of a million dollars -- recovered from him by law enforcement at the time of his arrest, a factor in the defendant's favor for purposes of sentencing.
United States v. Samuels, No. S1-08-Cr.-08-03 (RWS), 2009 WL 875320 (S.D.N.Y. April 2, 2009) Ah . . . the power that the safety valve can sometimes yield. Samuels pled guilty to conspiring to distribute and possess with intent to distribute 50 grams or more of crack. For that offense, she faced a 10 year mandatory minimum sentence (even though her Guidelines indicated 70 to 87 months imprisonment). Samuels, however, fulfilled the requirements of 18 U.S.C. § 3553(f), and was sentenced to time served (15 months). Here's the justification for the sentence as explained by the Court: Title 18 U.S.C. § 3553(a)(1) directs the Court to consider "the history and characteristics of the defendant" when determining the appropriate sentence. As noted by the Probation Officer in his report, Samuels was raised under poor economic circumstances with an abusive father addicted to crack. She dropped out of school in order to support her family, and she has stated that her sale of narcotics was for economic reasons. Her abuse of crack was never extensive, and she reportedly stopped abusing and selling crack in November 2007 on her own initiative, two months prior to her arrest. The probation officer noted in the PSR that her abuse of drugs was a source of embarrassment to her and kept from her family, and Samuels has stated that she has no desire to ever use drugs again.
Samuels has acknowledged responsibility for her actions, stated that she has learned a valuable lesson from it, and seeks to move forward to become a productive member of society. Her 15 months of incarceration reflect the positive change that the Defendant seeks to make in her life. She has successfully completed a typing class, undergone Inmate Companion Training, is pursuing classes in order to earn a GED degree, and leads a trusted cleaning crew that is permitted access to nearly all parts of the MDC. She has never been written up for a disciplinary infraction while in custody. Upon her return to society, Samuels appears well positioned to complete her education and pursue gainful employment in support of her family.
Because a term of incarceration beyond time already served would not serve the goals of the penal system with respect to this Defendant, a downward departure from the Guidelines is appropriate.
United States v. Remy, No. 07-CR-5 (JBW), 2008 WL 5458951 (E.D.N.Y. Dec. 24, 2008) Simple case. Remy pled guilty to one count of cocaine importation. His advisory Guidelines range was 30-37 months, although he qualified for a two level "safety valve" reduction. Based on 18 U.S.C. § 3553(a), though, Judge Weinstein sentenced Remy to a year and a day. More specifically, Judge Weinstein found that Remy "has no criminal history and is a hard worker," and "has some recent medical issues." Additionally, Judge Weinstein found that the sentence "will send a clear message that any involvement in narcotics importation will result in a substantial prison sentence," and that it is "unlikely that he will engage in further criminal activity in light of his law-abiding background." Interestingly, Judge Weinstein also noted that Remy had essentially already been punished -- to wit, through "the impact of this conviction on the defendant's ability to apply for certain employment."
A report from a reader (Renate J. Lunn and Jesse M. Siegel of the Law Office of Jesse M. Siegel) of a significant variance from the Guidelines in a narcotics case:
Judge Scheindlin gave our client a non-Guidelines sentence of time-served, even though his stipulated Guidelines range was 70-87 months. The defendant was in the unique situation of having spent a significant amount of time in custody (12 months) before being released on bail and had made significant progress in drug and alcohol treatment (the root cause of his involvement in the offense) for the nine months he was released on bail.
The defendant pled guilty, pursuant to a plea agreement, to participating in a conspiracy to distribute five or more kilograms of cocaine. He qualified for the safety valve and received a three-level reduction for acceptance of responsibility. After spending a year at the MDC, he was released on bail. While on bail, he attended regular one on one counseling sessions and group therapy at Daytop to treat his cocaine and alcohol addictions.
The defendant, who is now 52 years old, became involved in the conspiracy as a result of his own intense cocaine addiction. We argued that as his addiction was now being treated, it was highly unlikely that he would commit any further crimes. In our submission, we included monthly progress reports from Daytop, which demonstrated that Mr. Martinez was learning to address his addictions. His counselor at Daytop also submitted a letter to the Court, through Pre-Trial Services. We spoke with the counselor and shared with her our strategy, requesting that her report to Pre-Trial emphasize that the defendant continues to need treatment. Judge Scheindlin commented that it was rare to receive such a detailed letter from a counselor. Furthermore, this was the defendant's first offense, and he had an impressive work history. In our sentencing memorandum we cited to U.S. Sentencing Commission statistics regarding the low recidivism rates of defendants over the age of 50 and studies indicating that drug treatment is more effective at reducing crime rates than incarceration.
In sentencing the defendant, the Court analyzed the nature and circumstances of the offense: the defendant had a menial role in the conspiracy, acting as a “trusted messenger” or “lackey.” In consideration of the history and characteristics of the defendant, the court noted the defendant's lack of criminal history until the age of 50, and his “detailed and honorable work history.” The Court commented that this was a serious crime that required incarceration, but determined that the one year that the defendant spent in jail was a sufficient deterrent. The Court concluded that returning the defendant to jail would not do him or society any good.
Thus, the defendant was sentenced to 4 years of supervised release with the special condition that he participate in a drug treatment program. We were extremely pleased that a judge used her authority to ensure that a defendant receives drug treatment, rather than just incarceration. We hope that this decision, though unpublished will inspire other judges to do the same.
Nice work! Questions from other readers? Feel free to contact Renate J. Lunn of Jesse M. Siegel directly at 212-207-9009. Renate's e-mail is [email protected] and Jesse's e-mail is [email protected].
United States v. Day, No. 05-04283-cr (2d Cir. Oct. 10, 2006) (found here)
The sentencing court really blew it on this one. Specifically, the sentencing court imposed a 180 month sentence on Day composed of consecutive 120 month and 60 month sentences (for two separate counts). The sentencing court, however, misread the statute under which Day was convicted to require that the sentences for those two counts be served consecutively. Indeed, the Second Circuit surmised that the sentencing court reached that conclusion based on the PSR which had also erroneously concluded that the two sentences had to be served consecutively.
The Second Circuit therefore rightfully reversed the sentence and remanded the case for resentencing. For further discussion of this significant error, check out Doug Berman's Sentencing Law and Pollcy blog here, where Professor Berman observes that he is "always charged up about sentencing realities because I sometimes find cases in which simple sloppiness can almost cost a person years of their life." (As an aside, it also bears noting that the sentencing court failed to verify that Day and his counsel had read and discussed the PSR.)
But that was not the sentencing court's only error. Rather, the sentencing court also failed to make specific findings as to whether or not Day qualified for safety valve relief.
Specifically, a sentencing court may not rely solely on the Government's determination as to whether or not a defendant qualifies for safety valve relief. Rather, a sentencing court must make its own determination based on the record. Day argued (and the Government conceded) that the sentencing court here made no independent findings in support of its conclusion that Day did not qualify for safety valve relief. Accordingly, the Second Circuit remanded the case so that the sentencing court could "make specific findings as to whether Day met his burden of proving that he satisfied the safety valve criteria."
Day also argued that he should be permitted to further proffer before he is resentenced to demonstrate that he meets the safety valve's fifth criteria (that he "provided to the Government all information and evidence . . . concerning the offense or offenses that were part of the same course of conduct or of a common plan or scheme"). The Second Circuit acknowledged that it had not yet addressed this question, and declined to do so in Day. Rather, the Second Circuit found that the sentencing court may either: (1) grant safety valve relief; or (2) allow Day to further proffer and determine that he still does not qualify for safety valve relief.
Wait a second. Isn't the Second Circuit answering the question it specifically says it is not answering?
If Day provides no further proffer in support of safety valve relief, the sentencing court upon remand will be working with the same universe of information with which it worked when it made its initial safety valve determination. And since it rejected safety valve relief based on that information, it is fair to presume that it would once do so (albeit with specific findings).
So, if the only two possibilities available to the sentencing court are to grant safety valve relief or to allow further proffer and reject safety valve relief, isn't the Second Circuit essentially saying that the sentencing court must hear further proffer from Day because: (1) it could not/would not (based on its prior findings) grant safety valve relief without hearing further proffer from Day; and (2) it could not reject safety valve relief after hearing further proffer from Day without, in fact, hearing that further proffer? In other words, don't both possibilities laid out by the Second Circuit contemplate that the sentencing court must hear further proffer from Day?
Or, is the Second Circuit saying that the sentencing court could decline to hear further proffer from Day upon remand and still reject safety valve relief? And, if so, hasn't Day "squarely presented" the question to the Second Circuit that it claims has not been "squarely presented" -- to wit, whether or not he has the right to further proffer upon remand?
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