Opinion
Case Nos. CR-2-90-012 (001), CR-2-00-106 (001).
March 19, 2007
SENTENCING OPINION AND ORDER
I. INTRODUCTION
The Defendant, Willie Green, Jr., came before the Court for sentencing on November 14, 2005. The Court found that Defendant had a total offense level of 34 and a Criminal History Category of I, resulting in an imprisonment range of 151-to-188 months under the now advisory Sentencing Guidelines. The Court varied from the advisory guidelines, and imposed upon Defendant a term of 100 months of incarceration, followed by three years of supervised release. The Court also ordered Defendant to pay a special assessment of $300. The Court is now issuing this Memorandum, to provide the bases for the specific sentence imposed.
II. BACKGROUND
On January 8, 1990, the Grand Jury for the Southern District of Ohio, Eastern Division, returned a 37 count Indictment charging Defendant Green and seven co-defendants with various conspiracy and drug trafficking crimes. Defendant, individually, was charged with five counts from the Indictment: one count of Conspiracy to Distribute and to Possess With Intent to Distribute Cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and four counts of Possession with Intent to Distribute Cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
The other defendants charged in the Indictment were Robin Renee Warner, Michelle Angel, Joyce Ann Richmond, Juniata Marla Redd, Claudette Elaine Foster, and Linda Fay Hardy.
On May 18, 1990 Robin Renee Warner was found guilty by a jury trial of 32 counts of the 37 count Indictment. Subsequently, she was sentenced to 84 months confinement followed by a three-year term of supervised release.
Other co-defendants, after conviction were sentenced as follows: Michele Angel was ordered to serve 54 months confinement followed by a three-year term of supervised release; Joyce Richmond was ordered to serve 54 months confinement followed by a three-year term of supervised release; and Juniata Redd was ordered to serve 78 months confinement followed by a three-year term of supervised release. Presentence Investigation Report at ¶¶ 2, 13, 15-17.
Case No. CR-2-90-012 (001).
On May 18, 1990, a jury found Defendant guilty of all five counts with which he was charged. Subsequent to the announcement of the jury's verdict, the Court scheduled Defendant to be sentenced on August 24, 1990, but he failed to appear for sentencing and a warrant was issued for his arrest. Defendant was apprehended in Apopka, Florida on April 26, 2000, living under an assumed name.
On June 27, 2000, after Defendant was apprehended and returned to this district, the United States Attorney for the Southern District of Ohio, Eastern Division, filed a single count Information charging Defendant with Failure to Appear for Sentencing, in violation of 18 U.S.C. §§ 3146(a)(1) and 3146(b)(1)(A)(I). Defendant entered a guilty plea to the Information pursuant to a plea agreement. On October 12, 2000, Defendant was sentenced to a total of 165 months incarceration followed by a term of three years of supervised release and ordered to pay a $300 special assessment.
Case No. CR-2-00-106 (001).
For purposes of sentencing, Defendant's cases were consolidated. Specifically, Defendant was sentenced to 151 months incarceration, three years of supervised release, and a $200 special assessment as to Case No. CR-2-90-012 (001). With regard to Case No. CR-2-00-106 (001), he was sentenced to 14 months incarceration to run consecutively with CR-2-90-012 (001), three years of supervised release to run concurrently with CR-2-90-012 (001), and a $100 special assessment.
This case is now before the Court for re-sentencing in light of the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005).
III. ANALYSIS A. Supreme Court Decision in Booker
On January 12, 2005, the Supreme Court of the United States issued its opinion in United States v. Booker, 125 S.Ct. 738 (2005), altering the landscape of sentencing procedures for convicted criminal defendants. In that case, the Court first held that certain provisions of the Federal Sentencing Guidelines (the "Guidelines"), promulgated pursuant to the Sentencing Reform Act of 1984, violated a defendant's Sixth Amendment right to a jury trial because they required a judge to find facts which increased a defendant's sentence beyond what could be imposed based solely on the jury's verdict. Booker, 125 S.Ct. at 756 ("Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt."). To remedy this constitutional violation, the Court further held that severing the two provisions from the Act that make the Guidelines mandatory would preserve the rest of the sentencing scheme. Id. at 756-57. "So modified," the Court continued, "the Federal Sentencing Act . . . makes the Guidelines effectively advisory." Id. at 757. The holding in Booker "requires a sentencing court to consider Guidelines ranges, . . ., but it permits the court to tailor the sentence in light of other statutory concerns as well[.]" Id. One of the factors a court must consider when reaching its sentencing determination is the history and characteristics of the defendant. See United States v. Webb, 403 F.3d 373, 384-85 (6th Cir. 2005) (citing 18 U.S.C. 3553(a)(1)-(2) ("`The court, in determining the particular sentence to be imposed, shall consider . . . the nature and circumstances of the offense and the history and characteristics of the defendant' along with `the need for the sentence imposed to afford adequate deterrence to criminal conduct [and] to protect the public from further crimes of the defendant.'").
Codified as 18 U.S.C. § 3551 et seq.
Booker excised 18 U.S.C. § 3553(b)(1) (making the Guidelines mandatory) and 18 U.S.C. § 3742(e) (setting forth standards of review on appeal). Booker, 125 S.Ct. at 765.
18 U.S.C. § 3553(b)(1) required "a sentence of the kind, and within the range" prescribed by the Guidelines "unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration." 18 U.S.C. § 3742(e)(1) and (2) required courts of appeals to determine whether the sentencing court had imposed a sentence in violation of law or "as a result of an incorrect application of the sentencing guidelines." Subsection (3) required a circuit court to vacate a sentence that was outside the applicable range if, inter alia, the district court failed to provide a written statement of reasons, departed based on a factor that did not advance the objectives set forth in section 3553(a)(2), or departed "to an unreasonable degree" from the range.
The list of factors to be considered during sentencing are set out in 18 U.S.C. 3553(a): Factors to be considered in imposing a sentence. — The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider —
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and sentencing range established for —
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines — (I) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and (ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or
(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);
(5) any pertinent policy statement —
(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28 United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and
(B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
B. Imposition of Sentence
The 1998 edition of the United States Sentencing Commission Guidelines Manual has been used here for calculation purposes. See U.S.S.G. § 1B1.11.
Based upon a total combined offense level of 34 and a criminal history category of I, the recommended term of imprisonment for Defendant is between 151 and 188 months under the Guidelines. See id. at Ch. 5, Pt. A. Also, a term of supervised release of three years is mandatory if a defendant is sentenced to more than one year of imprisonment. See id. at §§ 5D1.1(a), 5D1.2(a)(2), and 5D1.2(b).
Having engaged in the Guidelines analysis as to Defendant, the Court next turns its consideration of the relevant § 3553(a) factors. Section 3553(a)(2)(C) requires the Court to consider the need to protect the public from future crimes of the defendant. After Booker, district courts have routinely considered a defendant's age as part of their analysis on the ground that older defendants exhibit markedly lower rates of recidivism compared to younger defendants. See, e.g., United States v. Hernandez, 2005 WL 1242344, at *5-*6 (S.D.N.Y. May 24, 2005) (imposing a term of incarceration of 50 months on a 48-year-old defendant where the Guidelines recommended a minimum term of 70 months); United States v. Carmona-Rodriquez, 2005 WL 840464, at *5 (S.D.N.Y. Apr. 11, 2005) (imposing a term of incarceration of 30 months on a 54-year-old defendant where the Guidelines recommended a minimum term of 46 months); Simon v. United States, 2005 WL 711916, at *4 (E.D.N.Y. Mar. 17, 2005) (imposing a term of incarceration of 240 months on a 43-year-old defendant where the Guidelines recommended a minimum of 324 months); United States v. Nellum, 2005 WL 300073, at *3 (N.D. Ind. Feb. 3, 2005) (imposing a term of incarceration of 108 months on a 57-year old defendant where the Guidelines recommended a minimum of 168 months); see also United States Sentencing Commission, Measuring Recidivism: The Criminal History Computation Of The Federal Sentencing Guidelines, at p. 28 (2004) (stating that for those defendants in Criminal History Category I, the recidivism rate for defendants who are between the ages of 41 and 50 is 6.9 percent whereas the recidivism rate for such defendants who are between the ages of 31 and 40 is greater than 12 percent), available at http://www.ussc.gov/publicat/Recidivism_General.pdf. The Court hereby adopts this reasoning.
In this case, Defendant was 62 years old at the time of sentencing. As stated above, he does not have a criminal history outside of the circumstances presented here. These two facts persuade the Court that it need not impose a sentence within the range set forth within the Guidelines since Defendant's likelihood recidivism is minimal. Also, in considering the nature and history of the defendant under § 3553(a)(1), the Court notes Defendant's written statement explaining his failure to appear for his original sentencing. While the Court certainly does not suggest that this explanation is sufficient to absolve Defendant of criminal liability for any of his offenses, it does reflect the complexity of Defendant's then-existing family circumstances. The Court looks to Defendant's written statement solely for that purpose.
The letter, written pursuant to Defendant's plea agreement, indicates,
I am writing you this letter to tell you how I became involved in one of the dumbest episodes of my entire life. In August of 1990 when I was awaiting sentencing I was not only supporting my children, I was also having to take care of my wife who was terminally ill. At that time, I was the principle means of support. I tried to talk to friends and relatives to get them to help me when I was in prison, but I was alone. I was scared. I didn't know what to do. It was at that time that I made a really bad decision and decided not to show up for my sentencing. It was a really stupid and hasty decision.
PSR at ¶ 46.
Predictably, the parties disagree with respect to the sentence they believe should be imposed in this case. The government argues that the Court should sentence Defendant within the recommended Guidelines range of 151 to 188 months. Defendant, on the other hand, requests a sentence of time served, which at sentencing amounted to a total of almost 67 months incarceration. The Court is not persuaded entirely by either party's contention.
For the reasons provided above, with respect to Defendant's drug-related offenses, the Court imposes a sentence of 90 months incarceration followed by a term of three years of supervised release. Additionally, Defendant is assessed a $250.00 special assessment. Defendant's sentence for failing to appear before the Court for sentencing on August 24, 1990 is 10 months incarceration, which will run consecutively to the above-imposed sentence of 90 months incarceration, followed by a term of three years of supervised release, which will run concurrently with the above-imposed sentence of three years of supervised release, and a special assessment of $50.00. Thus, the total sentence imposed upon Defendant is 100 months incarceration followed by three years of supervised release and a $300 special assessment. This sentence reflects the seriousness of Defendant's offenses, promotes respect for the law, provides just punishment for Defendant's offenses, affords adequate deterrence to criminal conduct, protects the public from further crimes of Defendant, and provides Defendant with needed educational or vocational training.
Defendant's conviction in Case No. CR-2-90-012(001).
Defendant's guilty plea in Case No. CR-2-00-106(001).
Factors that must be considered when imposing a sentence. See 18 U.S.C. 3553(a)(2).