Opinion
No. 06 Cr. 399-01 (RWS).
November 1, 2006
SENTENCING OPINION
On May 5, 2006, defendant James Keller ("Keller") pled guilty to one count of federally funded program fraud in violation of 18 U.S.C. § 666(a)(1)(B) and (b), a Class C felony. For the reasons set forth below, Keller will be sentenced to a term of imprisonment of five months, to be followed by a three-year term of supervised release with a special condition of five months' home confinement. Keller will also be required to pay a fine of $3,000 and a mandatory assessment of $100.
Prior Proceedings
Keller was arrested on November 16, 2005, and released on bail that same day. An information was filed in the Southern District of New York on May 5, 2006, charging that from in or about December 2003, up to and including on or about September 1, 2004, in the Southern District of New York and elsewhere, Keller, unlawfully, knowingly, willfully and corruptly did solicit, demand, accept, and agree to accept cash payments from a contractor in return for approving requests for payment and change-order payments relating to a New York School Construction Authority ("SCA") contract having a value in excess of $5,000. At the time of the transaction, Keller was a Project Officer with the SCA.
On May 5, 2006, Keller appeared before the Honorable Kevin N. Fox of this district and pled guilty to the charged criminal conduct in accordance with a plea agreement entered into with the Government. Keller's guilty plea was accepted by this Court on June 12, 2006, and he is scheduled to be sentenced on November 2, 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") established 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
Keller was born on January 6, 1952, in Queens, New York. His father died of a brain tumor when Keller was approximately thirteen years old. Keller's mother was murdered in 1981. After her death, Keller became the primary caretaker for his grandfather, who passed away four years later. Keller has been married for over thirty years and has two adult children. He received his Bachelor of Science degree in 1980.
Keller began working for the SCA as a project manager in May 1992 and resigned from this position in May 2006 due to disciplinary charges of misconduct. Since 1973, with the exception of the periods from 1990 to 1992 and from May to July 2006, Keller has been employed by various public and private construction entities as an assistant project manager, project manager, or construction superintendent. From May to September of 1992, Keller was incarcerated after having been convicted of theft of government funds for illegally continuing to receive and cash his deceased grandfather's retirement checks in the amount of over $42,000 over a period of almost eight years.
Additional facts regarding Keller's history and characteristics are adopted as set forth in the Pre-Sentence Investigation Report prepared by the Probation Office of the United States District Court for the Southern District of New York on July 7, 2006, and revised on October 11, 2006 ("the October 11, 2006 PSI").
The Offense Conduct
The following description draws on the October 11, 2006 PSI. The specific facts of the underlying conduct are adopted as set forth in that report.
While Keller was employed by the SCA, he solicited and accepted cash payments from a contractor on an SCA construction project for which Keller served as the SCA Project Officer. The payments were solicited and accepted by Keller in exchange for the approval and processing of requests for payment in connection with the project. The contract for the project had a value in excess of $5,000.
The SCA is a New York City public agency responsible for the design, repair and construction of New York City public school buildings and property. Between December 2003 and September 1, 2004, the SCA received in excess of $10,000 in federal funds under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.
The parties agreed that the value of the payments Keller received were between $10,000 and $30,000. The Relevant Statutory Provisions
The maximum term of imprisonment is a term of ten years, pursuant to 18 U.S.C. § 666(a) (1) (B) and (b). In addition, pursuant to 18 U.S.C. § 3583(b)(2), a term of not more than three years' supervised release may be imposed if a sentence of imprisonment is imposed.
Keller is eligible for not less than one nor more than five years' probation, pursuant to 18 U.S.C. § 3561(c)(1). Because the offense is a felony, pursuant to 18 U.S.C. § 3563 (a) (2), one of the following must be imposed as a condition of probation unless extraordinary circumstances exist: a fine, restitution, or community service.
Pursuant to the Violent Crime Control and Law Enforcement Act of 1994, all offenders on probation, parole or supervised release for offenses committed after September 13, 1994, are required to submit to one drug test within fifteen days of commencement of probation, parole or supervised release and at least two drug tests thereafter for use of a controlled substance, unless ameliorated or suspended by the court due to its determination that the defendant poses a low risk of future substance abuse as provided in 18 U.S.C. §§ 3563 (a) (5) and 3583(d).
The maximum fine is $250,000, pursuant to 18 U.S.C. § 3571(b) (3). A special assessment in the amount of $100 is mandatory, pursuant to 18 U.S.C. § 3013.
The Guidelines
The November 5, 2003, edition of the United States Sentencing Commission Guidelines Manual has been used in this case for calculation purposes, pursuant to U.S.S.G. § 1B1.11(b)(1), because it was the Manual in effect at the time the offense was committed.
The Guideline for violations of 18 U.S.C. § 666 is found in U.S.S.G. § 2C1.1. Based on U.S.S.G. § 2C1.1(a), the offense conduct results in a base offense level of 10. Because the value of the payments received by Keller is more than $10,000 but less than $30,000, the base offense level is increased by four points, pursuant to U.S.S.G. § 2C1.1(b) (2) (A) (ii) and § 2B1.1 (b) (1)(C).
Based on his plea allocution, Keller has shown recognition of responsibility for the offense. Pursuant to U.S.S.G. § 3E1.1(a), the offense is therefore reduced two levels.
The defendant's resulting adjusted offense level is 12.
Keller has one prior criminal conviction for theft of government funds in violation of 18 U.S.C. § 641, for which he served a term of four months' imprisonment from May 1992 until September 1992. Thus, pursuant to U.S.S.G. § 4A1.2(e)(3), Keller has no criminal history points and a Criminal History Category of I.
Based on a total offense level of 12 and a Criminal History Category of I, the Guidelines range for imprisonment is 10 to 16 months. The minimum term of imprisonment may be satisfied by: (1) a sentence of imprisonment; or (2) a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention, provided that at least one-half of the minimum term is satisfied by imprisonment, pursuant to U.S.S.G. § 5C1.1(d).
The Guidelines range for a term of supervised release is at least two but not more than three years, pursuant to U.S.S.G. § 5D1.2(a) (2). If a sentence of imprisonment 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).
Pursuant to U.S.S.G. §§ 5B1.1, application note 2, Keller is not eligible for probation because the applicable Guidelines range is in Zone C of the Sentencing Table.
The Guidelines fine range for the instant offense is from $3,000 to $30,000, pursuant to U.S.S.G. § 5E1.2(c)(3)(A)-(B). Subject to the defendant's ability to pay, in imposing a fine pursuant to U.S.S.G. § 5E1.2(d)(7), the Court shall consider the expected costs to the Government of any imprisonment, probation, or supervised release. The most recent advisory from the Administrative Office of the United States Courts suggests a monthly cost of $1,952.66 to be used for imprisonment, a monthly cost of $287.50 for supervision, and a monthly cost of $1,736.98 for community confinement.
The Remaining Factors of 18 U.S.C. § 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 Booker, 543 U.S. 220, and the Second Circuit's decision in Crosby, 397 F.3d 103. In particular, § 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 § 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."
Having considered all the factors set forth in § 3553(a), it is determined that a Guidelines sentence is warranted in the instant case.
The Sentence
For the instant offense, Keller is hereby sentenced to five months' imprisonment, followed by a three-year term of supervised release with the special condition of five months' home confinement. In addition, Keller is to pay a fine of $3,000 and a mandatory special assessment of $100, which shall be due immediately.
As Keller has kept all court appearances, has been in compliance with all terms and conditions of his pretrial release, and is not viewed as a flight risk or a danger to the community, he is deemed a good candidate for voluntary surrender, pursuant to 18 U.S.C. § 1343(a) (2) (B). Keller is therefore directed to report to the Bureau of Prisons no later than December 14, 2006, to commence a five-month term of imprisonment.
Keller is further directed to report to the nearest United States Probation Office within seventy-two hours of release from custody to commence a three-year term of supervised release with the special condition of five months' home confinement. It is therefore recommended that Keller be supervised by the district of his residence.
As mandatory conditions of his supervised release, Keller 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 mandatory drug testing condition is suspended due to the imposition of a special condition requiring drug treatment and testing.
The standard conditions of supervision (1-13) shall be imposed, along with the following special conditions:
(1) Keller will participate in a program approved by the United States Probation Office, which program may include testing to determine whether he has reverted to using drugs or alcohol. The Court authorizes the release of available drug treatment evaluations and reports to the substance abuse treatment provider, as approved by the Probation Officer. Keller shall be required to contribute to the costs of services rendered, in an amount determined by the probation officer, based on ability to pay or availability of third-party payment.
(2) Keller also shall comply with the conditions of home confinement for a period of five months. During this time, Keller will remain at his place of residence except for employment and other activities approved by his probation officer. He will maintain a telephone at his place of residence without call forwarding, a modem, caller ID, call waiting, or portable cordless telephones for the five month period of home confinement. At the direction of his probation officer, Keller shall wear an electronic monitoring device and follow electronic monitoring procedures specified by his probation officer. Keller shall pay the costs of home confinement on a self payment or copayment basis as directed by the probation officer.
(3) Keller shall provide the probation officer with access to any requested financial information.
(4) Keller shall not incur new credit charges or open additional lines of credit without the approval of the probation officer unless Keller is in compliance with the installment payment schedule.
The terms of this sentence are subject to modification at the sentencing hearing set for November 2, 2006.
It is so ordered.