Opinion
03 Cr. 651(RPP)
December 4, 2003
OPINION AND ORDER
On July 7, 2003, the Defendant, David Blumenthal, pled guilty to a two count information charging him with conspiracy to violate federal narcotics laws ( 21 U.S.C. § 846, 812. S4I (a)(1) and (b)(1)(C)) and one count of distribution and possession with intent to distribute narcotics ( 21 U.S.C. § 812, 841(a)(1) and (b)(1)(C)). By letter dated November 7, 2003, Defendant requested a downward departure based on his post-offense, pre-arrest rehabilitation. The government took no position on the application for a downward departure. After hearing an oral argument from Defendant at a Sentencing Hearing on November 10, 2003, the Court adjourned the sentencing to review all of the cases submitted.
Background
The first count of the information charges that from 2000 to June 2001, Defendant was part of a conspiracy that distributed MDMA and MDEA. The second count charges that on June 27, 2001, Defendant participated in the delivery of 500 pills of MDMA and MDEA to an undercover officer. An arrest warrant for Defendant was issued March 11, 2003, and one week later on March 18, 2003, Defendant voluntarily surrendered. After Defendant's guilty plea in July 2003, a Presentence Investigation Report was completed and submitted to the Court on August 18, 2003. At a sentencing hearing on September 9, 2003, the Government informed the Court that Defendant had not yet proffered pursuant to the "safety-valve" provision of 18 U.S.C. § 3553 (f) and U.S.S.G. §§ 5C1.2 and 2D1.1 (b)(6). The Court adjourned the sentencing to give Defendant the opportunity to make a proffer, if he so desired.The information refers to one transaction of 500 MDMA/MDEA pills, but the Presentence Investigation Report found that, while Defendant was involved in the narcotics conspiracy, he "personally distributed at least 7,500 ecstasy pills" (Presentence Investigation Report at 2). During Defendant's proffer to the Government, however, he admitted that he was involved with distributing more than 20,000 ecstasy pills. The Government's answers to the Court's questions support the conclusion that Defendant was a mid-level drug distributor of MDMA during the period 2000 to June 2001 and the Defendant has offered no information to contradict these statements.
Defendant graduated from Bronx High School of Science in June 1998 (id.). He attended Fashion Institute of Technology from February l, 1998 to May 21, 1999 (id.). From the Fall of 1999 until the Spring Semester of 2000, Defendant attended SUNY Stony Brook and was on the Dean's List (id.). From August 29, 2000 to June 28, 2001, Defendant attended Fordham University (id.).
In July 2001, Defendant moved to Virginia in order to disassociate himself from the conspiracy for which he is charged (see id. at 7, 11-12). While in Virginia, he was employed by two on-line companies (id. at 14). In January 2002, he returned to school completing his Bachelor of Arts at SUNY Binghampton (id. at 13). Defendant has been continuously employed since July 28, 2003 (id. at 14). His employer attended the sentencing hearing on November 10, 2003, and described Defendant as one of his best employees.
Defendant has admitted to the occasional use of Marijuana, MDMA, LSD and mushrooms, but he has not sought treatment for his drug use and there is no evidence that he became addicted to any of these drugs (Presentence Investigation Report at 13).
The Defendant's offense level computation based on the information he provided during his proffer is as follows. The base offense level for his involvement in the distribution of over 20,000 pills of MDMA/MDEA is thirty-two pursuant to U.S.S.G. § 2Dl.l(c)(4). Because the Defendant met the criteria of U.S.S.G. § 5C1.2, Limitation on Applicability of Statutory Minimum Sentences in Certain Cases, two points were deducted pursuant to U.S.S.G. § 2D l. l (b)(6). An additional three points were deducted for acceptance of responsibility pursuant to U.S.S.G. § 3El.l(a) and (b), for a total offense level of twenty-seven. Defendant's lack of criminal history places him in Criminal History Category I.
Analysis
Counsel for Defendant argues that Defendant's complete disassociation with the conspiracy, lifestyle change, as well as completion of a college degree and lawful employment demonstrate extraordinary rehabilitative efforts that warrant a downward departure. See United States v. Barton, 76 F.3d 499, 504 (2d Cir. 1996) (remanding case so that District Court could make findings of extraordinary efforts at rehabilitation warranting a downward departure). The Sentencing Guidelines permit sentencing judges to grant departures from the range proposed by the Guidelines if a circumstance of a case "is present to an unusual degree and distinguishes itself from the `heartland' of cases covered by the guidelines." U.S.S.G. § 5K2.0(a). See United States v. Koon, 116 S.Ct. 2035 (1996).
Defendant's application relies on a number of cases that build upon the holding of United States v. Maier, 975 F.2d 944 (2d Cir. 1992). In Maier, the Second Circuit affirmed Judge Sweet's reduction of a sentence for a defendant with a fourteen-year history of drug addiction to probation in order to facilitate her extended compliance with a methadone treatment and withdrawal program for heroin addiction.United States v. Maier, 975 F.2d 944, 945 (2d Cir. 1992). The defendant had gone back to school to learn how to become a court reporter and was presently employed. Judge Sweet considered the history and characteristics of the defendant as well as the need for the sentence imposed to provide the defendant with needed medical care in the most effective manner. Id. The Second Circuit concluded, "a defendant's rehabilitative efforts can, in an appropriate case, warrant a downward departure." Id.
The present case is distinguishable from Maier. The District Court in Maier, had relied on the defendant's history of addiction and need for medical care in the most effective manner as well as a letter from Maier's therapist indicating that she feared that incarceration and removing Maier from her methadone treatment program would endanger her recovery and possibly her life. Id. Here, no evidence has been presented that incarceration would endanger Defendant's rehabilitation or health.
Several cases expand the holding of Maier. Most of these cases are distinguishable from the Defendant's case because they involve defendants who have overcome drug addictions as part of their rehabilitation. In clarifying when a downward departure for rehabilitation may be granted, the Second Circuit in United States v. Bryson, however, stated that downward departures are not limited to cases of persons who have overcome drug addictions. United States v. Bryson, 163 F.3d 742, 747 (2d Cir. 1998). Nonetheless,Bryson also suggests why defendants who have overcome drug addiction are more likely to be entitled to a downward departure:
In Bryson, the government successfully appealed departures for "extraordinary rehabilitation" that reduced the defenants' sentences to sixty months imprisonment each.
Much depends on the baseline from which an individual's extraordinary rehabilitation can be measured. The achievement of the ordinary responsibilities of citizenship such as regular employment and support of dependants may, depending on the starting point of rehabilitation, be sufficient if that achievement is the product of substantial commitment sustained overtime.Id. at 748-49. In short, drug addicts start at a lower baseline. In this case, the baseline from which the Defendant's rehabilitation is measured is that of a non-drug addicted college student from a middle-class family who engaged in criminal behavior as a mid-level drug dealer for approximately a year. He has since then undergone a lifestyle rehabilitation for the last two and one-half years. His rehabilitation will be considered in light of the sentences of the defendants in the cases discussed below.
In United States v. Rivera, the District Court granted the defendant a downward departure based on his pre-arrest and post-arrest drug rehabilitation, participation in a 1,000 vocational training class as an electrical mechanic, and his voluntary disclosure of his participation in a total of eight bank robberies. United States v. Rivera, 262 F. Supp.2d 313, 317 (S.D.N.Y. 2003). Mr. Rivera entered drug treatment on his own accord and disclosed his participation in two bank robberies to his counselor who encouraged him to report them to authorities. Id. After he was indicted for two bank robberies, Rivera confessed to six more. Id. at 316-17. There was no evidence before the Court in that case that the Government was about to charge Rivera for any of these crimes preceding his confession.Id. Here, Defendant did not cause his arrest by voluntary information to the authorities. He pleaded guilty after his arrest. Thus, the case is too dissimilar to be of weight in this case. Furthermore, the extent of the departure is not revealed.
In United States v. Greene, the District Court judge granted a downward departure of seven levels to a defendant who pled guilty to aiding and assisting in the preparation of false income tax returns in which he concocted improper deductions for low income persons in the Bronx. United States v. Greene, 249 F. Supp.2d 262, 262 (S.D.N.Y. 2003). Because of the departure, Greene was sentenced to three years of probation, rather than incarceration. Id. at 267. The Judge cited three reasons for her departure. First, Greene had six adopted foster children, and at the time of sentencing was the sole provider for three of them, and had a long history of charitable efforts. Id. Second, probation and restitution were sufficient to "serve the twin aims of deterrence and retribution." Id. Third, given that Greene was sixty-five years old and had no criminal history, she found it unlikely that he would "repeat his criminal conduct." Id.
Defendant's demeanor in court as well as his dedication to his current job, his fiancee and his family cause the Court to conclude that it is unlikely that he will return to his criminal conduct. While no one is economically dependent upon the defendant in this case, his mother and fiancee have testified that they rely on him for emotional support, as do most relatives of defendants. Nevertheless, the sentencing goals of deterring others from committing crimes or retribution would not be sufficiently served by probation and restitution. Society judges the crime of distributing controlled substances more severely than the crime of tax fraud, as evidenced by the base-level under the Sentencing Guidelines for the crime with which Defendant is charged being twice as high as that of Greene's. See U.S.S.G. § 2Dl.l(c)(2) and U.S.S.G. § 2T4. l (F). Thus, weighing the factors listed inGreene, the Court does find grounds to grant a downward departure, though not one as extensive as was granted inGreene, where the defendant had engaged in many self-sacrificing charitable efforts.
United States v. Workman, 80 F.3d 688 (2d Cir. 1996), provides some guidance in determining the amount of a downward departure to grant. In Workman, the defendant left a narcotics conspiracy and enlisted in the U.S. Army before he was indicted. Workman,
80 F.3d at 701. In upholding the two-level downward departure, the Court noted, "this rehabilitation was not undertaken at the spur of impending prosecution for the crimes at issue in this appeal." Id. The Defendant here also cut his ties to a narcotics ring and physically removed himself from the environment on his own accord without the threat of impending prosecution. Furthermore, his case may be distinguished fromWorkman because there is no showing that his conduct involved participation in violent offenses whereas in Workman's case there had been such participation.
Considering the Defendant's clear efforts at pre-arrest rehabilitation by physically removing himself from criminal activity, his change of lifestyle, his steady employment, and his completion of a university degree, the Court finds that under the case law, his efforts at rehabilitation do qualify as an extraordinary circumstance warranting a downward departure. Nevertheless the Defendant's crime was distributing large quantities of MDMA-MDEA over a period of one year. The length and magnitude of Defendant's role in the conspiracy to distribute narcotics cannot be overlooked. Accordingly, Defendant's sentencing level is reduced three levels to twenty-four, making the guideline for his sentence 51-61 months in custody. He is sentenced to 51 months in prison to be followed by three years supervised release where there will be no fine, but there will be a mandatory special assessment of $200.
The Court has considered Defendant's stature, demeanor, and his testimony concerning incidents of victimization, and the Court does not find "extreme vulnerability" to assault in prison. See United States v. Lara, 905 F.2d 599, 605 (2d Cir. 1990).
IT IS SO ORDERED.