Opinion
S 88 Cr. 559 (CSH).
July 26, 1989
MEMORANDUM OPINION AND ORDER
Defendant Maritza Gonzalez's current motion requests that I amend calculations done under the Sentencing Guidelines which are contained in the pre-sentence report prepared by the Probation Department. Defendant further asks that I consider a downward departure from the period of incarceration indicated in the report. The government has opposed defendant's motion in a letter from AUSA Jonathan Liebman dated March 6, 1989.
Guideline Calculations
Gonzalez pled guilty to one count of an information. That count charged that Gonzalez, knowing that one of her co-defendants, Julio Valdez, was engaged in the illegal distribution of drugs, assisted Valdez by throwing a bag containing glassine envelopes of heroin out the window of their apartment, thereby hindering his apprehension in violation of 21 U.S.C. §§ 812, 841(a) (1), 841(b) (1) (C), and 18 U.S.C. § 3.
Under the Sentencing Guidelines, defendant's beginning offense level is 16. Section 2D.1 (a)(3) (setting offense level for offenses involving 10-19 grams of heroin). That number was reduced in the pre-sentence report by 6 levels because Gonzalez was an accessory after the fact. Section 2X3.1. From the resulting offense level of 10, two more offense levels were subtracted pursuant to 3E1.1 for acceptance of responsibility. The final result is an offense level of 8. Because the defendant falls within the first criminal history category, a range of imprisonment of 2 to 8 months is required under the Guidelines. Since the minimum term of imprisonment is six months or less, a sentence of probation is authorized under the Guidelines, so long as the term includes at least two months of intermittent or community confinement. Sections 5B1.1, 5C2.1.
Defendant challenges the above calculations on two grounds. First, defendant contends that she was entitled to a larger reduction of her offense level based on her status as an accessory after the fact. Secondly, defendant contends that she is entitled to a further reduction of her offense level pursuant to Section 3B1.2 of the Guidelines. 1. Adjustments for Accessories After the Fact
The Probation Department's original Guideline calculations added two offense levels on grounds that defendant obstructed or impeded her prosecution. See Section 3C1.1. In a letter signed by AUSA Jonathan Liebman dated February 14, 1989, the government agreed with the position taken in defendant's current motion that the two-level upward adjustment was not merited under the circumstances of this case and would result in "double counting." I agree with the position of the parties and therefore have excluded the upward adjustment in my analysis. By force of this Order, the worksheets and other relevant documents attached to the pre-sentence report are amended to exclude the upward adjustment for obstruction of justice.
Defendant admitted hindering the apprehension of co-defendant Valdez with the knowledge that Valdez had illegally possessed heroin with intent to distribute the drug. As an accessory after the fact, Section 2X3.1 provides that Gonzalez's base offense level is 6 levels lower than the offense level for the underlying offense. Because the underlying offense carried an offense level of 16, see § 2D1.1(a) (3), Gonzalez's offense level was reduced from 16 to 10.
Despite the unambiguous language of Section 2X3.1, defendant contends that the offense level of an accessory after the fact should be one-half of the offense level of the underlying offense, or 8 instead of 10 in this case. Defendant's basis for this argument is 18 U.S.C. § 3, which reads in relevant part:
Except as otherwise expressly provided by any Act of Congress, an accessory after the fact shall be imprisoned not more than one-half the maximum term of imprisonment or fined not more than one-half the maximum fine prescribed for the punishment of the principal, or both;. . . .18 U.S.C. § 3. Defendant argues that § 3 specifically requires a one-half reduction in offense level, and that the reduction of 6 levels authorized by Section 2X3.1 results in a "harsh" result that is contrary to the Congressional intent embodied in § 3. In the alternative, defendant argues that Section 2X3.1 is arbitrary and therefore violates the due process clause.
Defendant's position is inconsistent with the plain meaning of the 18 U.S.C. § 3. That statute does no more than to impose a maximum term of punishment for persons found to be accessories after the fact. In the case at hand, Gonzalez pled guilty to assisting a person who had possessed narcotics with intent to distribute them. That underlying offense carries a maximum term of imprisonment of 20 years and a fine of $1,000,000. 21 U.S.C. § 841 (b) (1) (C). Title 18 U.S.C. § 3 therefore requires only that Gonzalez's sentence not exceed one-half of that punishment, or 10 years in prison and a fine of $500,000. So long as the actual sentence given under the Guidelines does not exceed that ceiling, § 3 is not transgressed. In sum, I reject defendant's claim that the Guidelines offense level of an accessory after the fact must be one-half the offense level of the principal wrongdoer.
Nor is there any basis for concluding that the reduction of 6 levels authorized by Section 2X3.1 is unconstitutionally arbitrary. Although defendant does not explain her basis for this argument in any depth, I have no trouble concluding that the 6 level reduction is a rational method by which both the severity of the underlying offense and the accessory's relatively peripheral role in that offense can be taken into account in sentencing. Moreover, if by "arbitrary" the defendant means to complain that Section 2X3.1 unconstitutionally deprives the sentencing judge of the power to exercise discretion in individual cases, it is now established law in this circuit that in non-capital cases "there is no constitutional right to judicial discretion in individualized sentencing." United States v. Vizcaino, 870 F.2d 52, 56 (2d Cir. 1989) (upholding the Guidelines from attack on due process grounds).
2. Reductions Pursuant to 3B1.2
Defendant also contends that she is entitled to a reduction of her offense level pursuant to Section 3B1.2 of the Guidelines. That section provides for a reduction of 4 levels if the defendant was a "minimal" participant, and a reduction of 2 levels if the defendant was a "minor" participant. A reduction of 3 levels is possible if the defendant's role fell somewhere between minimal and minor. According to the Commentary to Section 3B1.2, minimal defendants are those "who are plainly among the least culpable of those involved in the conduct of a group." A minor participant "means any participant who is less culpable than most other participants, but whose role could not be described as minimal." The Probation Department made no reduction under this section.
Speaking in the context of the downward adjustment of 6 levels for accessories after the fact, the Commentary to Section 3B1.2 provides that the above adjustments for minimal and minor participants "normally would not apply because an adjustment for reduced culpability is incorporated in the base offense level." Defendant argues that use of the word "normally" in the Commission's comment implies that in some situations an accessory may be entitled to both the 6 level reduction under Section 2×3.1 and the 2 or 4 level reductions provided for by Section 3B1.2. Defendant argues that this case is such a situation because her conduct was significantly less culpable than that of Julio Valdez and the other co-defendants.
In its letter of March 6, 1989, the government is silent on the issue of whether defendant is entitled to a further reduction under Section 3B1.2.
It might be that the Sentencing Commission's use of the word "normally" in the Commentary to Section 2×3.1 was inadvertent, and that in no case will an accessory after the fact be entitled to a further reduction pursuant to Section 3B1.2. I do not take that position, however, for it is not impossible to imagine situations in which a defendant who receives the reduction of 6 levels as an accessory after the fact might also be entitled to a reduction as either a minimal or minor participant.
Section 3B1.2 allows adjustments where a defendant's role is significantly less serious relative to the role played by other participants. The role played by an accessory after the fact will always be less serious than the role played by the principal who committed the underlying offense. That fact is taken into account through the reduction of 6 levels authorized by Section 2×3.1. To recognize the difference in culpability between principal and accessory any further would be duplicative of Section 2×3.1, and thus as a general matter no additional reduction should be granted even though the accessory's role could be labelled minimal or minor in comparison to the principal's role.
However, where there are more than one accessories after the fact, each of whom contribute in varying degrees to aid the principal wrongdoer, then adjustments for their respective minimal or minor roles relative to each other would be appropriate pursuant to Section 3B1.2. Such reductions are possible only where there are multiple accessories.
This, however, is not a case where there are multiple accessories. Gonzalez cannot, therefore, be said to have played a minimal or minor role relative to any participant other than the principal wrongdoer, for which she has already received a reduction of 6 levels. Defendant is therefore not entitled to any further reduction of her offense level.
By concluding that this particular lone accessory is not entitled to a further reduction under Section 3B1.2, I do not hold that the degree of assistance rendered by the accessory in aid of the principal wrongdoer may never be taken into account under the Guidelines. Where the accessory lends only the slightest assistance to the principal, that fact might justify in some measure a downward departure. Conversely, were the assistance is on-going, premeditated and essential to the principal's successful avoidance of apprehension or prosecution, then an upward departure, within the limits of 18 U.S.C. § 3, might be justified.
We therefore arrive at an offense level of ten, which is subject to a two-level deduction for acceptance of responsibility as the Probation Department recognizes. Thus Gonzalez presents for sentencing with a criminal history category of I and an offense level of eight. The Guidelines sentencing is two to eight months. Because the minimum term of imprisonment does not exceed six months, probation is authorized, see 18 U.S.C. § 3561(a) and Guidelines Section 5B1.1(a). However, the Guidelines require that a condition of probation require intermittent confinement or community treatment as provided in section 5C2.2(c) (2), section 5B1.1(2); section 5C2.1(c) (2) refers in turn to section 5C2.1(e), which requires for each month of imprisonment thirty days of intermittent confinement in prison or jail, or one month of community confinement.
Request for Downward Departure
Gonzalez moves for a downward departure from the Guidelines, which if granted would result in a probationary sentence without the requirement of confinement.
18 U.S.C. § 3553(b) permits a sentence outside the range established by the Guidelines if the court finds "that there exists an aggravating or mitigating circumstance of a kind, or to a degree not adequately taken into consideration by the sentencing commission in formulating the Guidelines." Guidelines section 5K2 undertakes to identify some of the factors "that the Commission has not been able to fully take into account in formulating precise Guidelines."
Gonzalez requests a downward adjustment because of her particular family situation. She lived with co-defendant Valdez, who is now incarcerated for a substantial period of time as the result of his own plea of guilty. Gonzalez has three children with Valdez: three boys aged eleven, six, and four. They reside with Gonzalez in the family home, an apartment in Manhattan. The two older boys are in school: one attends school from 8:40 am. to 3:00 p.m. and the younger from 7:30 a.m. to 12:30 p.m. The youngest child remains at home with Gonzalez. All children, of course, are at home during the weekends. According to an affidavit setting forth her family situation, Gonzalez has an aunt. who resides in Brooklyn and works seven days a week as a home attendant, and a distant cousin who is married with two children, lives in the Bronx, and is a construction worker. Gonzalez' father-in-law, Julio Valdez, is 54 years old and resides in another apartment in Gonzalez' building with a woman in her early twenties. Julio Valdez works as a doorman at a residence in New Jersey, sometimes working the 4:00 p.m. to midnight shift and at other times the midnight to 8:00 a.m. shift. Gonzalez expresses doubt that these individuals, alone or in combination, could effectively care for her three children if she were imprisoned.
That concern seems to me plausible; and in my view is sufficient to make out a case for a downward adjustment. I am mindful of the Guidelines' statement in section 5H1.6, under "Specific offender characteristics," that: "Family ties and responsibilities and community are not ordinarily relevant in determining whether a sentence should be outside the Guidelines." But the qualifying adverb "ordinarily" implies that family ties in some circumstances may be considered in a downward adjustment; and where the father is in prison and the imprisonment of the mother would place minor children at hazard, I am prepared to depart from the ordinary. At least, I am prepared to do so when the mother's involvement is as peripheral as in the case at bar. If the Commission would not take this view of its Guidelines, then I would conclude that the commission had not adequately taken such particular circumstances into consideration, and direct a downward adjustment under 18 U.S.C. § 3553 (b).
I will accordingly grant a downward adjustment in this case, and sentence Gonzalez to a term of probation of one year without the requirement of confinement. No fine will be imposed; the $50 special assessment will be.
I will call the case for sentencing in Room 307 on August 31, 1989 at 4:30 p.m.
It is SO ORDERED.