Opinion
S2 03 Cr. 1115-03 (RWS).
June 13, 2006
SENTENCING OPINION
Defendant Robert Gordon ("Gordon") has pled guilty to conspiracy to commit mail fraud in violation of 18 U.S.C. § 1349, a Class C felony, and to mail fraud in violation of 18 U.S.C. §§ 1341, 1342, a Class C felony. Gordon is hereby sentenced to a term of imprisonment of 37 months. Additionally, a period of two years' supervised release is imposed for each count, to run concurrently.
Prior Proceedings
Gordon was arrested by the authorities on September 11, 2003. On that same day, he was released on a $50,000 personal recognizance bond. On January 26, 2005, an indictment was filed in the Southern District of New York charging that from July 2002 through August 2003, Gordon and others engaged in conspiracy to commit mail fraud in violation of 18 U.S.C. § 1349 (Count One); and that from July 2002 through August 2003, Gordon and others solicited individuals across the United States to purchase vending machines but failed to supply the vending machines, in violation of 18 U.S.C. §§ 1341, 1342 (Count Two).
On June 1, 2005, Gordon appeared before the Honorable Theodore H. Katz in the Southern District of New York and allocuted to Counts One and Two in accordance without the benefit of a plea agreement. On May 26, 2006, Gordon's counsel, Alex Young K. Oh, wrote to the Court regarding Gordon's sentence. Gordon is scheduled to be sentenced on June 13, 2006.
The Sentencing Framework
In accordance with the Supreme Court's decision in United States v. Booker, 125 S. Ct. 738 (2005) and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), the sentence to be imposed was reached through consideration of all of the factors identified in 18 U.S.C. § 3553 (a), including the advisory Sentencing Guidelines (the "Guidelines") establishing by the United States Sentencing Commission. Thus, the sentence to be imposed here is the result of a consideration of:
(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 the sentencing range established for —
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . .;
(5) any pertinent policy statement . . . [issued by the Sentencing Commission];
(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.18 U.S.C. § 3553 (a). A sentencing judge is permitted to find all the facts appropriate for determining a sentence, whether that sentence is a so-called Guidelines sentence or not. See Crosby, 397 F.3d at 111.
The Defendant
Gordon is twenty-eight years old. He was raised under middle class conditions in the town of Pompton, New Jersey. Gordon's father died when Gordon was sixteen, an event with which Gordon had a very difficult time. Gordon began experimenting with drugs at the age of seventeen and ultimately became addicted. He voluntarily entered a drug treatment program, and reportedly has not used drugs since.
Additional facts regarding the history and characteristics of Gordon are adopted as set forth in the Pre-Sentence Investigation Report of May 19, 2006.
The Offense Conduct
An investigation of the underlying offenses was conducted by the United States Postal Inspection Service ("USPIS"). The investigation revealed that Gordon and others placed advertisements in local newspapers for companies ("Traditional Steel," "Quarters Only," and "PowerVend") that purported to sell coin-operated vending machines. A number of victims contacted these companies in order to purchase vending machines and were directed to send payments to Traditional Steel in the form of cashier's checks, personal checks, and/or wire transfers. In turn, approximately one-half to one-third of the victims never received the vending machines they were promised or received machines of lesser quality than what were promised. The specific facts of the underlying offenses are adopted as set forth in the Pre-Sentence Investigation Report dated May 19, 2006.
Relevant Statutory Provisions
The maximum term of imprisonment that may be imposed for Counts One and Two is twenty years per count. See 18 U.S.C. § 1341. If a term of imprisonment is imposed, the Court may impose a term of supervised release of not more than three years, pursuant to 18 U.S.C. § 3583(b)(2).
The defendant is eligible for not less than one nor more than five years' probation by statute. See 18 U.S.C. § 3561(c)(1). Because the offense is a felony, one of the following must be imposed as a condition of probation unless extraordinary circumstances exist: a fine, restitution, or community service. 18 U.S.C. § 3563 (a)(2).
The maximum fine that may be imposed for Counts One and Two is $250,000 per count, pursuant to 18 U.S.C. § 3571. A special assessment of $100 per count is mandatory. See 18 U.S.C. § 3013.
Full restitution to the victims of the underlying offense is required under 18 U.S.C. §§ 3663A and 3664. Restitution in the amount of $542,985 is owed to the victims in this case.
The Guidelines
The November 1, 2005 edition of the United States Sentencing Commission Guidelines Manual ("the Guidelines") has been used in this case for calculation purposes, in accordance with Guidelines § 1B1.11(b)(1).
The guideline for a violation of 18 U.S.C. §§ 1341 and 1349 is found in U.S.S.G. § 2B1.1, which provides for a base offense level of 6. See U.S.S.G. § 2B1.1(a).
The victims of the underlying offenses suffered a loss of approximately $542,985. Because the amount of loss was greater than $400,000, but less than $1,000,000, the offense level is increased by 14 levels, pursuant to § 2B1.1(b)(1)(H).
Because the offense involved fifty or more victims, the offense level is increased by four additional levels. See U.S.S.G. § 2B1.1(b)(2)(B).
Gordon has shown recognition of responsibility for his offense. Therefore, because his base offense level is 16 or greater, his offense level is reduced by three levels. See U.S.S.G. § 3E1.1(a) and (b). The resulting adjusted offense level is 21.
Criminal History
Gordon was arrested on March 25, 1999 for possession of a controlled substance (anabolic steroids), an offense for which he served three years' probation. This offense results in one criminal history point.
Gordon was arrested on July 23, 1999 for possession of a controlled dangerous substance on school grounds, an offense for which he served three years' probation. This offense results in one criminal history point.
At the time the instant offense was committed, Gordon was on probation. Therefore, pursuant to § 4A1.1(d), two criminal history points are added.
The total number of criminal history points ascribed Gordon is four. According to the sentencing table at Chapter 5, Part A, four criminal history points establishes a Criminal History Category of III.
Sentencing Options
Based on a total offense level of 21 and a Criminal History Category of III, the guideline range for imprisonment is 46 to 57 months. See Ch. 5 Pt. A (Sentencing Table).
The guideline range for a term of supervised release for the instant offenses is at least two years, but not more than three years. See U.S.S.G. § 5D1.2(a)(2). If a sentence of one year or less is imposed a term of supervised release is not required but is optional, pursuant to U.S.S.G. § 5D1.1(b). Supervised release is required if the Court imposes a term of imprisonment of more than one year or when required by statute, pursuant to U.S.S.G. § 5D1.1 (a).
Because the applicable guideline range is in Zone D of the Sentencing Table, the defendant is not eligible for probation, pursuant to U.S.S.G. § 5B1.1, application note 2.
The fine range for the instant offense is from $10,000 to $100,000. See U.S.S.G. § 5E1.2(c) (3) (A).
Pursuant to U.S.S.G. § 5E1.1(a) (1), in the case of identifiable victims, the Court shall enter a restitution order for the full amount of the victims' loss.
The Remaining Factors of Section 3553 (a)
Having engaged in the Guideline analysis, this Court also gives due consideration to the remaining factors identified in 18 U.S.C. § 3553 (a) in order to impose a sentence "sufficient, but not greater than necessary" as is required in accordance with the Supreme Court's decision in United States v. Booker, 125 S. Ct. 738 (2005) and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2nd Cir. 2005). In particular, section 3553 (a) (1) asks that the sentence imposed consider both "the nature and circumstances of the offense and the history and characteristics of the defendant," while section 3553 (a) (2) (A) demands that the penalty "provide just punishment for the offense" that simultaneously "afford[s] adequate deterrence to criminal conduct" as required by § 3553 (a) (2) (B).
Furthermore, pursuant to § 3553 (a) (6), the Court is also mindful of "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." Since Booker, a growing number of courts have "held that sentencing judges are `no longer prohibited from considering the disparity between co-defendants in fashioning a reasonable sentence.'" Ferrara v. United States, 372 F. Supp. 2d 108, 2005 WL 1205758, at *11 (D. Mass. May 13, 2005) (quotingUnited States v. Hensley, 363 F. Supp. 2d 843, (W.D. Va. 2005)); see also United States v. McGee, 408 F.3d 966, (7th Cir. June 3, 2005); Simon v. United States, 361 F. Supp. 2d 35, 49 (E.D.N.Y. 2005).
Having taken these factors into account, it is determined that a non-guideline sentence is warranted in Gordon's case. To sentence Gordon within his guideline range would be to sentence him to the same term of imprisonment (46 months) as co-defendant Darrin Mosca, the organizer and leader of the underlying conspiracy. Because Gordon was not involved in the planning of the conspiracy and maintained a smaller role than Mosca, it is determined that sentencing them similarly would create an unwarranted sentencing disparity. Gordon's role in the conspiracy is similar to that of co-defendant William Martin, who was also a salesperson working under Mosca's leadership. Under the United States Sentencing Guidelines, Martin was sentenced to a term of 37 months imprisonment. Therefore, in order to avoid unwarranted sentencing disparities, pursuant to section 3553 (a) (6), the same term of imprisonment shall be imposed in Gordon's case.
While Gordon's guideline range is based in part upon his criminal history, the Court takes note of the fact that Gordon's two prior offenses were non-violent, drug-related, and most likely stemmed from his substance abuse and addiction. Gordon has since voluntarily enrolled in a substance abuse program, and has been drug-free since his completion of that program. As such, Gordon's criminal history does not accurately reflect his likelihood to commit future crime or a higher level of culpability. Therefore, it is concluded that a Criminal History Category of III "substantially over-represents the seriousness of the defendant's criminal history." § 4A1.3; see also United States v. Hernandez, No. 04 Cr. 424-20 (RWS), 2005 U.S. Dist. LEXIS 12043 (S.D.N.Y. June 13, 2005).
The Sentence
Gordon is hereby sentenced to a term of imprisonment of 37 months.
A sentence of two years' supervised release is also imposed. Gordon shall report to the nearest Probation Office within 72 hours of release from custody, and supervision will be in the district of his residence.
As mandatory conditions of supervised release, Gordon shall: (1) not commit another federal, state, or local crime; (2) not illegally possess a controlled substance; (3) not possess a firearm or destructive device; and (4) cooperate in the collection of DNA as directed by the probation officer.
The following special conditions of supervised release are also imposed: (1) the defendant shall provide the probation officer with access to any requested financial information; (2) the defendant shall not incur new credit charges or open additional lines of credit without the approval of the probation officer, unless the defendant is in compliance with the compliance payment schedule; and (3) the defendant will participate in a program approved by the United States Probation Office to include testing to determine whether the defendant reverts to using drugs or alcohol.
It is further ordered that the defendant shall make restitution payable to the Clerk, U.S. District Court, in the amount of $542,985, for disbursement to the individual victims. The restitution shall be paid in monthly installments of ten percent of gross monthly income over a period of supervision to commence thirty days after the release from custody.
Gordon shall also pay to the United States a special assessment of $200, which shall be due immediately. Due to the imposition of restitution, the fine in this case is waived.
It is so ordered.