Opinion
Criminal No. 96-342
December 23, 1998
OPINION
This matter comes before the court upon what the defendant has called a "motion to reconsider sentence." While the defendant has not cited a specific rule or other authority, his motion appears to be one for reduction of sentence, and thus governed by Rule 35 of the Federal Rules of Criminal Procedure. This court will treat the defendant's motion accordingly.
On April 8, 1998, the defendant pled guilty before this court to one count of a five count Information charging him with income tax evasion, in violation of 26 U.S.C. § 7201. With respect to the offense conduct in this matter, an investigation conducted by the criminal division of the Internal Revenue Service revealed that Mr. Crooms evaded the payment of income taxes for years 1986 through 1995. The defendant was the owner and operator of "D.C. Electrical Contractors," a sole proprietorship. Between 1986 and 1995, the investigation revealed that the defendant failed to report substantial income which he received from clients of D.C. Electrical Contractors. In an effort to evade the payment of income taxes between 1986 and 1995, the defendant filed false income tax returns, indicating that he was unemployed. All told, the tax loss was calculated to be $96,569.
On September 9, 1998, this court sentenced Mr. Crooms to a custodial term of ten (10) months, after considering the range of six (6) to twelve (12) months mandated by the United States Sentencing Guidelines. The defendant does not appear to contest the calculation of the guideline range in his present motion. Rather, he contends that this court should have imposed a probationary term, rather than a custodial term, pursuant to § 5C1.1 (c)(3) of the Sentencing Guidelines.
This court finds that the defendant has failed to satisfy any of the criteria enumerated in Rule 35 for reconsideration or reduction of his sentence. Furthermore, even if this court were to consider the merits of his motion, the defendant's claim would nevertheless be denied.
A motion for a reduction in sentence as governed by Rule 35 must fall within one of three categories: (a) a correction of a sentence on remand; (b) a reduction of a sentence for changed circumstances involving the cooperation of the defendant in assisting the prosecution of another individual involved in committing an offense; or (c) a correction of a sentence by the sentencing court. Thus, Rule 35 "no longer provides a sentencing judge with broad discretion to reduce a sentence." United States v. Flowers, 983 F. Supp. 159, 172 (E.D.N.Y. 1997). The burden of proof is placed squarely on the moving party to show that his case falls within the ambit of one of the categories enumerated in Rule 35. See Mullins v. United States, 1995 WL 572178 at *2 (E.D.Pa. Sept. 27, 1995);United States v. Barrett, 390 F. Supp. 1022, 1025 (D.S.C. 1975).
The defendant herein has failed to satisfy his burden to prove that he is entitled to a reduction of his sentence under Rule 35. First, there was no remand following an appeal, and the defendant therefore fails to qualify under Rule 35(a). Second, Rule 35(b) is inapplicable since he has clearly not cooperated with the government in the prosecution of other individuals. And third, Rule 35(c) is also inapplicable. To be entitled to a reduction in sentence under subsection (c), Mr. Crooms must show that the sentencing court made a technical error in computing his sentence. Such errors include arithmetical, technical, or other clear errors. Further, a motion under Rule 35(c) must be made within seven days of sentencing. Here, the defendant is not seeking a reduction of his sentence due to a technical miscalculation of his sentence. Moreover, having been sentenced by this court on September 9, 1998, the defendant had seven days therefrom to file a Rule 35(c) motion. The defendant filed his motion on September 22, 1998, and thus the defendant appears to be out of time to invoke Rule 35(c).
Even if the defendant's motion was not barred under Rule 35, however, his claim would nonetheless fail on the merits. While the specific basis of the defendant's motion is not entirely clear, it appears that he relies on essentially two grounds. First, he argues that a probationary term would be sufficient to meet the statutory purposes of sentencing, i.e., promoting respect for the law, imposing a just punishment for the offense, achieving general deterrence, and protecting the public from further crimes. See United States Sentencing Guidelines, Chapter 5, Part B, Commentary. Second, the defendant appears to argue that a reduction in his sentence is appropriate based on family circumstances.
With respect to the first contention, this court fully reviewed the entire range of sentences available to it, including probation, when Mr. Crooms was sentenced. This court had the benefit of a fully developed Presentence Investigation Report submitted by the United States Probation Office, which was reviewed and commented upon by both the government and Mr. Crooms prior to sentencing. I also reviewed the numerous letters submitted to the court — both prior to sentencing and in support of this motion for reconsideration — on the defendant's behalf. Based upon what this court considered to be a rather full picture of the defendant and crime which he committed, this court did not sentence Mr. Crooms to the maximum sentence available under the guidelines. However, based upon the nature and extent of the crime, this court strongly believed that a custodial term was indeed warranted. A probationary term, for the serious crime of income tax evasion perpetrated over a ten-year period, is not an appropriate sentence in this matter.
In support of his second contention, the defendant's counsel has certified that "a probation sentence . . . will avoid the certain hardship the defendant and his family will suffer if the custodial sentence remains in tact [ sic]." Certification of Ronald C. Hunt, September 18, 1998 at ¶ 6. He adds that "[i]ncarceration in this case more than most defendants will be devastating to his family both financially and emotionally." Id. at ¶ 7. While courts are generally permitted to grant downward departures based on family circumstances, this court will abstain from doing so in this case. See United States v. Headley, 923 F.2d 1079, 1082-83 (3d Cir. 1991).
Section 5H1.6 of the Sentencing Guidelines provides as follows:
Family ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the guidelines. Family responsibilities that are complied with are relevant in determining whether to impose restitution and fines.
The text of § 5H1.6 suggests that while downward departures based on family circumstances are not prohibited, such departures will be granted only in the rarest of circumstances. See United States v. Gaskill, 991 F.2d 82, 85 (3d Cir. 1993) ("[W]e have concluded that section 5H1.6 does not prohibit departures, but restricts them to cases where the circumstances are extraordinary."); United States v. Johnson, 908 F.2d 396, 399 (8th Cir. 1990) (finding that departures for extreme family circumstances warranted only in rare cases). Thus, consideration of the effect of a defendant's incarceration on his family, while not a prohibited factor, is a discouraged factor for a departure pursuant to § 5H1.6. See United States v. Koon, 518 U.S. 81, 95 (1996) (explaining that discouraged factor is one which is "not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline range," and pointing out that family circumstances is such discouraged factor).
Recently, in Koon, the United States Supreme Court explained the manner in which district courts should evaluate downward departures based upon "discouraged factors," like family circumstances, under the guidelines. According to the Court:
If the special factor is a discouraged factor, or an encouraged factor already taken into account by the applicable Guideline, the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present.Id. at 96. Accordingly, sentencing courts must evaluate the factor at issue to determine "whether the factor, as occurring in the particular circumstances, takes the case outside the heartland of the applicable guidelines." Id.
Case law indicates that courts are not quick to find that "family circumstances" take a case outside the "heartland" of the applicable guidelines. For instance, in United States v. Brand, 907 F.2d 31, 33 (4th Cir. 1990), the court reversed a downward departure by the district court where the defendant was the sole custodial parent of two young children. Furthermore, in Johnson, 908 F.2d at 399, the Court of Appeals for the Eighth Circuit affirmed a district court's decision not to depart downward where the defendant was the single mother of an infant. Finally, in United States v. Goff, 20 F.3d 918, 921 (8th Cir. 1994), the court reversed the district court's downward departure based upon the district court's consideration of the following factors:
At the time of his sentencing, Goff was supporting three young sons, and his wife had begun receiving Social Security disability benefits for a depression disorder and panic attacks. With Goff retired, the family's primary income is rental property which Goff manages.
The Eighth Circuit disagreed that the foregoing circumstances constituted "extraordinary circumstances" warranting a downward departure. In reversing the trial court, the court observed that most families suffer in some way when one of its members goes to prison. Id. The court concluded that the circumstances were not outside the "heartland" of cases that the Sentencing Commission had considered, and therefore reversed the district court's downward departure.
In this case, the defendant has not provided any evidence to show how his family responsibilities and circumstances somehow take his case out of the guidelines' "heartland." This court certainly does not underestimate the hardship, both financially and emotionally, that Mr. Crooms' incarceration will have on his family. It is a rare case indeed where an individual's incarceration has no detrimental effect on his or her family. Accordingly, because the defendant has failed to show how his family circumstances take this case out of the guidelines' "heartland," any adjustment to his sentence based on this factor is unwarranted.
Based upon the foregoing, the defendant's motion for reconsideration of his sentence is denied.