Opinion
No. 99 Cr. 81-01 (RWS).
October 25, 2000.
AMENDED SENTENCING OPINION
Defendant Oscar Humberto Londono-Jimenez ("Londono-Jimenez") pled guilty on November 23, 1999 to illegal reentry after deportation subsequent to the commission of an aggravated felony, a class C felony in violation of 8 U.S.C. § 1326. For the reasons set forth below, and subject to the sentencing hearing currently scheduled for October 26, 2000, a sentence of 54 months' incarceration shall be imposed, to be served concurrently with the New York state sentence he is currently serving, and followed by three years of supervised release. Londono-Jimenez will be required to pay a fine of $500, and shall pay the mandatory special assessment of $100.
Londono-Jimenez a citizen of Colombia, was born in 1961. Londono-Jimenez, a dropped out of school in 1980. His father was an alcoholic and had a tendency towards physical abuse. As a result, Londono-Jimenez left home during his teenage years. He did not complete high school. He began using marijuana at age 12, and later began a long history of abuse of alcohol, marijuana and powder and crack cocaine. He has a history of suicide attempts, beginning in his teenage years and continuing through the present day. His parents legally emigrated to the United States in 1984. Londono-Jimenez came to this country to join his parents that same year, but entered unlawfully without inspection by the Immigration and Naturalization Service ("INS")
On January 24, 1989 Londono-Jimenez was convicted in New York State Supreme Court — Queens County of criminal sale of a narcotic drug in the third degree, and of attempted robbery in the second degree. On October 13, 1989, he was deported to Colombia. Londono-Jimenez subsequently re-entered the United States without permission. By his own account, he re-entered in 1993 by using a false Guatamalan passport.
On March 28, 1994, Londono-Jimenez was convicted in New York State Supreme Court for criminal sale of a controlled substance in the third degree, and sentenced to 7 to 14 years' imprisonment. His conditional release date is April 29, 2003.
On June 7, 1994, Londono-Jimenez was interviewed by INS while incarcerated at the New York Downstate Correctional Facility ("Downstate"), at which time he informed INS that he had entered the United States unlawfully in 1993 by using a false Guatamalan passport. Londono-Jimenez was indicted for the instant offense approximately four and a half years after his interview, on January 27, 1999. The indictment charges Londono-Jimenez with being unlawfully found in the United States after deportation subsequent to a conviction for an aggravated felony, in violation of the illegal reentry statute, 8 U.S.C. § 1326(a) and (b)(2) (making it it a crime when an alien "enters, attempts to enter, or is at any time found in, the United States" without permission after having been deported subsequent to an aggravated felony conviction)
The Guidelines
The Presentence Report prepared by the U.S. Probation Office (the "Presentence Report") grades Londono-Jimenez's offense conduct under the Guidelines at a total offense level of 21, after an increase of sixteen levels from the base offense level of 8 for specific offense characteristics, see Guidelines § 2L1.2(a), (b)(1)(A), and a three-level reduction for acceptance of responsibility. See Guidelines § 3E1.1(a). The Presentence Report assigns Londono-Jimenez a criminal history category of VI, based on his criminal record.
The Guidelines provide for an imprisonment range of 77 to 96 months, and a fine range of $7,5000 to $750,000. See Guidelines § 5E1.2(c)(3). Because the applicable guideline range is within Zone D of the Guidelines' Sentencing Table, Londono-Jimenez is not eligible for a sentence of probation. See Guidelines § 5B1.1.
Calculation of Londono-Jimenez's Criminal History
Londono-Jimenez's criminal history calculation includes a 1987 conviction for driving a vehicle while impaired by alcohol, for which he was sentenced to fifteen days jail. This offense contributes one point to his criminal history calculation, resulting in a total score of 13 rather than 12 and a criminal history category of VI rather than V. Londono-Jimenez contends that this should not count towards his criminal history, pursuant to Guidelines § 4A1.2(c)(1).
Guidelines § 4A1.2(c)(1) provides in relevant part that prior sentences for misdemeanor and petty offenses are counted towards a defendant's criminal history calculation, except that sentences for certain prior misdemeanor and petty offenses are counted only if the sentence imposed was at least one year or a term of imprisonment of at least thirty days. See Guidelines § 4A1.2(c)(1). Included within this latter group of offenses is the crime of careless or reckless driving.See id. How ever, the commentary to this provision states specifically that convictions for driving while intoxicated or under the influence are counted and are not minor traffic infractions under Section 4A1.2(c).See Guidelines § 4A1.2, Application Note 4. Londono-Jimenez's conviction was for driving while impaired by alcohol. Therefore, it is properly counted towards his criminal history calculation even though the sentence imposed was only fifteen days.
Grounds For A Downward Departure
Londono-Jimenez seeks a downward departure based on: the four and a half year delay in indicting him after being found during his June 7, 1994 INS interview to be unlawfully present in the United States, resulting in a lost opportunity to serve a greater portion of his federal sentence for illegal reentry concurrently with his state sentence; the conditions of his confinement; and his vulnerability to being subject to abuse while incarcerated.
Delay In Indictment
Londono-Jimenez's request for a downward departure based on the delay in indictment him relies on an underlying premise that he would have been eligible to serve part or all of his federal sentence concurrently with his state sentence. Therefore, before considering whether a downward departure is appropriate based on the delay, it must be determined whether he would have been eligible for a consideration for a concurrent sentence.
The indictment charges Londono-Jimenez with having been "found" to be unlawfully present in the United States after having been deported. Since Londono-Jimenez reentered the country using a false passport, he could have been charged with having illegally re-entered rather than with having been "found" to be present unlawfully. The two variants in charging language are both encompassed by the illegal reentry statute and are often used interchangeably in the case law. See 18 U.S.C. § 1326;United States v. Medrano, 89 F. Supp.2d 310, 317 n. 5 (citing cases).
The fact that Londono-Jimenez was charged with being "found" to be unlawfully present complicates the question of imposing a concurrent sentence because, at the time he was found, he was serving a term of imprisonment. According to the Guidelines provision governing imposition of sentence on a person subject to an undischarged sentence, the sentence for the new offense is to be imposed consecutively to the undischarged sentence if that new offense was "committed" while the defendant was serving a term of imprisonment (including work release, furlough, or escape status) See Guidelines § 5G1.3(a). If the new offense was not committed during a term of imprisonment, however, the sentence may be imposed consecutively, concurrently, or partially concurrently "to achieve a reasonable punishment for the instant offense." See Guidelines § 5G1.3(c).
Unless the case is governed by Section 5G1.3(b), which is not so here.
If Londono-Jimenez had been charged in the indictment with illegally reentering the country, he would have been eligible for consideration for a concurrent sentence pursuant to Guidelines § 5G1.3(c). See United States v. Maria, 186 F.3d 65, 69 (2d Cir. 1999). However, as noted earlier, he was charged under the illegal reentry statute with having been "found" to be unlawfully present.
This Court has previously held for purposes of the statute of limitations that Londono-Jimenez's offense of being found to be unlawfully present was not completed until he was in fact found. See United States v. Londono-Jimenez, No. 99 Cr. 81, 1999 WL 1034749, at *3 (S.D.N.Y. Nov. 15, 1999). The question is when his offense was "committed" for purposes of sentencing under Guidelines § 5G1.3.
In a thoroughly-reasoned opinion by another district court in this circuit, United States v. Medrano, 89 F. Supp.2d 310 (S.D.N.Y. 2000), the court observed that there is no case deciding when the offense of "being found" occurs for purposes of sentencing under Section 5G1.3, but concluded that it occurs when the defendant is in fact (or should have been found) by the government. See id. at 315. The Medrano court also analyzed the problem that this result presents, which is that an alien charged with "being found" to be unlawfully present, and who is found during his imprisonment, is not eligible for consideration for a concurrent sentence pursuant to Section 5G1.3(c), even though an alien charged with having entered illegally, or with "being found" to be unlawfully present but who is found before being incarcerated, would be so eligible. See id. at 317. Given that an individual who is found to be unlawfully present will also have entered the country illegally:
The literal application of subsection (a) to the offense of `being found' and of subsection (c) to illegal reentry means that identical conduct may result in the imposition of radically disparate terms of imprisonment depending solely on the often arbitrary choice whether to charge the defendant with illegal reentry or illegally being found.Medrano, 89 F. Supp.2d at 317.
The Medrano court concluded that a sentencing court may in its discretion grant a downward departure to a defendant charged with being found to be unlawfully present to impose at least a partially concurrent sentence. See Medrano, 89 F. Supp.2d at 317. The reasoning behind this conclusion is that these circumstances take the case of a defendant charged with being found to be unlawfully out of the heartland of Section 5G1.3(a) and, moreover, application of subsection (a) to such a defendant creates unwarranted sentencing disparities among defendants with similar records who have been guilty of similar conduct, see 18 U.S.C. § 3553 (a)(6) and Guidelines § 5K2.0. See id.
The reasoning in Medrano, 89 F. Supp.2d 310, is persuasive, and is adopted herein. Thus, for purposes of Guidelines § 5G1.3, Londono-Jimenez's offense was committed while he was imprisoned, rendering the applicable Guidelines section to be 5G1.3(a) rather than 5G1.3(c). However, Londono-Jimenez was and is eligible for consideration for a downward departure to impose a concurrent sentence.
Londono-Jimenez, as explained above, seeks a downward departure for his lost opportunity to serve a concurrent sentence because he was indicted for the instant offense some four and a half years after being found to be unlawfully present in the United States. There is no contention that the delay in indicting Londono-Jimenez was due to bad faith on the part of the government. Conversely, Londono-Jimenez did not act so as to thwart the government's discovery of his illegal presence when he was interviewed by the INS. On the contrary, during his INS interview he informed INS truthfully of his illegal reentry.
Departure based on a factor not mentioned in the Guidelines is permissible if the factor takes the case out of the heartland of the Guidelines. See Guidelines § 5K2.0 (sentencing court may depart if it finds "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into account . . . in formulating the guidelines"); Koon v. United States, 518 U.S. 81, 94 (1996). A lost opportunity to serve concurrent sentences is not a factor mentioned in the Guidelines.
The Second Circuit has not ruled on whether a downward departure may be granted based on a lost opportunity to serve concurrent sentences. However, this basis for a departure has been approved by the Ninth Circuit and recognized as a possibility by the First Circuit, and was adopted in Medrano. See United States v. Sanchez-Rodriguez, 161 F.3d 556, 564 (9th Cir. 1998); United States v. Saldana, 109 F.3d 100, 104 (1st Cir. 1997); Medrano, 89 F. Supp.2d at 318.
The reasoning of Medrano on this point is persuasive and is adopted herein. Thus, an extended delay in indicting a defendant resulting in a lost opportunity to serve a greater portion of a sentence for illegal reentry concurrently with a state sentence, even absent a suggestion of bad faith on the part of the government, may be grounds for a downward departure in certain circumstances. See Medrano, 89 F. Supp.2d at 318. Those circumstances are present where the delay is of sufficient magnitude to create an unwarranted disparity in the sentence so as to take the case out of the heartland of the Guidelines. See id.
Imposition of at least a partially concurrent sentence would have been appropriate in this case, in light of the factors which are considered relevant to a court's discretionary decision whether to impose a concurrent sentence under Section 5G1.3(c). The Guidelines Commentary to Section 5G1.3(c) directs the court to:
Although technically speaking these factors do not apply, since imposition of a concurrent sentence in this situation is done pursuant to Section 5K2.0, they are the most logical criteria to apply.
consider the factors set forth in 18 U.S.C. § 3584 (referencing 18 U.S.C. § 3553(a)) and to be cognizant of:
(a) the type (e.g., determinate, indeterminate/parolable) and length of the prior undischarged sentence;
(b) the time served on the undischarged sentence and the time likely to be served before release;
(c) the fact that the prior undischarged sentence may have been imposed in state court rather than federal court, or at a different time before the same or different federal court; and
(d) any other circumstance relevant to the determination of an appropriate sentence for the instant offense.
The factors under 18 U.S.C. § 3553 include the nature and circumstances of the offense; the history and characteristics of the offender; and the need for the sentence to provide just punishment, adequate deterrence, and needed rehabilitation. See 18 U.S.C. § 3553.
Illegal reentry is not a trivial offense. Moreover, Londono-Jimenez has a serious criminal history. Thus, absent a downward departure, a sentence at the middle of the applicable Guidelines range is warranted. That would result in a sentence of 84 months.
Nevertheless, imposition of at least a partially concurrent sentence would have been appropriate earlier, and is appropriate now. Based on Londono-Jimenez's conditional release date for his New York sentence of April 29, 2003, he will serve approximately 30 more months on that sentence unless released earlier by the New York authorities. Cognizant of the aforementioned factors, and given that both his parents live in the United States, his early exposure to controlled substances and long-standing history of substance abuse, and his psychological problems including a history of repeated suicide attempts, the goals of reasonable punishment, deterrence, and rehabilitation would be sufficiently served by imposing a concurrent sentence.
The delay of four and a half years in this case is of sufficient magnitude to take this case out of the heartland of the Guidelines, so that Londono-Jimenez's lost opportunity to serve a greater portion of his federal sentence concurrently with his state sentence makes a downward departure appropriate. See Medrano, 89 F. Supp.2d at 318 (four year delay between time defendant found to be unlawfully present and indictment was grounds for downward departure based on lost opportunity to serve federal sentence concurrently with state sentence); cf. Labeille-Soto, 163 F.3d at 101 (affirming denial of downward departure where inter alia district court concluded that six-month delay in commencement of federal prosecution for illegal reentry did not take case out of heartland).
Given a delay of approximately four and a half years, or 54 months, and in consideration of the aforementioned factors relevant to imposition of a concurrent sentence, it is appropriate to grant a downward departure of 30 months from the 84-month sentence that would otherwise be warranted, resulting in a sentence of 54 months. In addition, and again in light of the discussion above, it is appropriate that this sentence be imposed to run concurrently with the New York state sentence which Londono-Jimenez is currently serving.
Conditions of Confinement
Londono-Jimenez also seeks a departure based on the conditions of his confinement since being writted by the United States Marshal Service to the Southern District of New York, specifically, the Hudson County Jail in New Jersey, in February, 1999. It is an open question in this circuit whether a departure could be granted on these grounds. See United States v. Gutierrez, No. 99 Civ. 1594, 2000 WL 1370326 (2d Cir. Sept. 20, 2000) (unpublished disposition) (declining to decide whether conditions of pretrial confinement could be grounds for downward departure) Assuming arguendo that it could be, however, the conditions of Londono-Jimenez's confinement, while not unproblematic, do not reach a level which would warrant a downward departure.
Vulnerability To Abuse
Londono-Jimenez also requests a downward departure on the grounds that he is particularly vulnerable to victimization by other prisoners while incarcerated. Although a defendant's physical, mental and emotional characteristics are not ordinarily relevant in determining whether a sentence outside of the Guidelines should be imposed, this is a recognized ground for a departure in this circuit. See United States v. Lara, 905 F.2d 599, 603 (2d Cir. 1990). Londono-Jimenez's attorney represents that he has already been the subject of victimization during his current confinement. Nonetheless, despite the disturbing events which have transpired, it has not been shown that he is so unusually vulnerable as to warrant a downward departure on this basis.
The Sentence
Londono-Jimenez shall be sentenced to a term of 54 months' incarceration, to be served concurrently with the New York state sentence he is currently serving, followed by three years of supervised release. Londono-Jimenez shall also pay a fine of $500.
As conditions of his supervised release Londono-Jimenez shall, for the term of his supervision: (1) abide by the standard conditions of supervision; (2) not commit another federal, state, or local crime; (3) not illegally possess a controlled substance; and (4) not possess a firearm or destructive device. As further conditions of supervision (1) Londono-Jimenez will participate in a program approved by the United States Probation Office for substance abuse, which may include testing to determine whether Londono-Jimenez has reverted to the use of drugs or alcohol; Londono-Jimenez will be required to contribute to the costs of services rendered (copayment) in an amount to be determined by the probation officer, based on ability to pay or availability of third-party payment; and (2) Londono-Jimenez, if not deported upon the completion of his custodial term, is to adhere to all directives issued by the Immigration and Naturalization Service.
Londono-Jimenez is to report to the nearest probation office within 72 hours of his release from custody, and supervision shall be by the district of his residency. Londono-Jimenez shall also pay to the United States the mandatory special assessment of $100, which shall be due immediately.
This sentence is subject to further hearing on October 26, 2000.
It is so ordered.