Opinion
No. 02 Cr. 122 (JGK).
June 28, 2005
MEMORANDUM OPINION ORDER
The defendant Blech moves pursuant to Federal Rule of Criminal Procedure 35(a) to reduce his sentence because of alleged "arithmetical, technical, or other clear error." Alternatively, the defendant moves for reconsideration of his sentence which consisted principally of a sentence of 72 months imprisonment with a recommendation to the Bureau of Prisons that the defendant receive credit for all time served, which was estimated to be 39 months. Both motions were based on the alleged failure of the Court to grant a downward departure pursuant to United States v. Lauerson, 362 F.3d 160 (2d Cir. 2004). Under Lauerson, a sentencing court has the discretion to depart downwardly to mitigate the effect of the cumulation of substantially overlapping enhancements when imposed upon a defendant whose adjusted offense level translates to a high sentencing range. There is no merit to the motion and it is denied.
The defendant never specifically requested a downward departure pursuant to Lauerson and there was no clear error in not granting such a departure. In any event, the Court was of course aware of its ability to depart downwardly pursuant toLauerson because it had downwardly departed pursuant toLauerson with respect to two co-defendants who, unlike the defendant, had been convicted after trial. The Court chose not to exercise its discretion to depart downwardly under Lauerson, and defense counsel understandably did not ask for such a departure, because the Court determined that it would grant the Government's motion to depart downwardly pursuant to § 5K1.1 of the Guidelines based on the defendant's substantial cooperation in the investigation and prosecution of others. This was of course a departure that was not available to the co-defendants, who did not cooperate and this basis for departure provided the Court with even greater ability to depart downwardly than the ability to depart under Lauerson. The Court had the discretion pursuant to § 5K 1.1 to depart to an appropriate sentence based upon factors that may include, but are not limited to those set forth in § 5K 1.1 The Court had the discretion under Lauerson to determine whether to depart and the extent of the departure, although any downward departure would be limited by the need that any departure could diminish, but not eliminate, the added punishment caused by overlapping enhancements. Lauerson, 362 F.3d at 167. Therefore, the Court determined to depart downwardly pursuant to § 5K1.1 of the Guidelines to an appropriate and reasonable sentence. Any departure under Lauerson would have been wholly duplicative and moot.
The sentence that the Court determined to impose was the appropriate and reasonable sentence under the Guidelines, giving the defendant the total departure that the Court, in its discretion, found to be appropriate and reasonable. The sentence that the Court imposed, including a substantial departure, resulted in the defendant receiving a sentence that was 63 months less than the 135 month minimum guideline that would have applied after taking into account the credit the defendant received for his acceptance of responsibility. The sentence that the Court imposed also resulted in the defendant receiving a significantly reduced sentence compared to defendants Rittweger and Brandon, even though the defendant was a principal participant in the offenses of conviction that resulted in enormous losses, and even though the defendant profited substantially from the fraud. No further departure was warranted.
The Court also noted that, having considered the Guidelines, the Court determined that the sentence of principally 72 months imprisonment was the appropriate and reasonable sentence under 18 U.S.C. § 3553(a), United States v. Booker, 125 S.Ct. 738 (2005) and United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). Nothing about the consideration of Lauerson in any way changes the Court's careful consideration of all of the factors in 18 U.S.C. § 3553(a). The defendant received substantial credit for his cooperation and his acceptance of responsibility, but the sentence was the reasonable and appropriate sentence after considering all of the factors in 18 U.S.C. § 3553(a).
In his motion, the defendant incorrectly "assumes" that the Court "had discussions with the United States Probation Office regarding the basis for its recommendation," and further incorrectly assumes that the Court's sentencing of the co-defendants was consistent with the Probation Office recommendations. The Court carefully considers the Probation Office recommendations which are available to the parties, but the ultimate responsibility for sentencing rests with the Court.
The motion also includes a request that the Court change its recommendation to the Bureau of Prisons from a recommendation for imprisonment at FPC Nellis, Nevada to FPC Taft, California. The Court will make that recommendation.
CONCLUSION
For the reasons explained above. the defendant's motion for correction of sentence or, in the alternative, for reconsideration, is denied, except that the Court will recommend to the Bureau of Prisons that the defendant be imprisoned at FPC Taft, California.
SO ORDERED.