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sentencing court found that the 29 months served by pretrial detainee at the MCC under harsh conditions was sufficient punishment for his offenses and sentenced him to time served
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No. S1 03 Cr. 1115-02 (RWS).
June 8, 2006
SENTENCING OPINION
Defendant Eric Behr ("Behr") 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. Under the United States Sentencing Guidelines, Behr would be sentenced to 37 to 46 months imprisonment. For the reasons set forth below, Behr is hereby sentenced to an term of imprisonment of time served. Additionally, he is sentenced to two years supervised release.
Prior Proceedings
On September 22, 2003, Behr was arrested by authorities. On that same date, the defendant was released on a $50,000 personal recognizance bond. On January 15, 2004, the defendant was remanded to custody due to a bail violation.
On January 26, 2005, an indictment was filed in the Southern District of New York charging that from July 2002 through August 2003, Behr 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, Behr 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 November 18, 2005, Behr appeared before the Honorable Michael H. Dolinger in the Southern District of New York and allocuted to Counts One and Two in accordance with a plea agreement entered into with the Government. Pursuant to this agreement, Behr also admitted to the forfeiture allegations contained in the indictment, and agreed to forfeit the funds constituting proceeds of the fraud.
Behr is scheduled to be sentenced on June 8, 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
Behr was born in Long Beach, New York on September 9, 1960. He was raised in the town of Oceanside under middle-class conditions. While Behr had no real complaints about the opportunities he was given, he also reported that his mother has suffered with psychiatric problems for many years, and that she was verbally abusive to him as a result of her illness. She has been on medication for depression for over 45 years.
Behr attended Oceanside High School and graduated in 1978. He then attended Fairleigh Dickinson University and earned a Bachelor of Science degree in Marketing in 1982. Behr has never been married and does not have any children.
Behr has suffered from severe depression for the past eight years. He has been treated with the medication Welbutrin since 2001.
Behr also has a history of drug use dating back to his teens. He began smoking marijuana at about age fifteen and used the drug three to four times per week. While he was in college, Behr began using cocaine a few times per week. His cocaine use escalated in the years following college, when he began using the drug on a daily basis. Behr completed a drug treatment program in 1987, but then relapsed three years later when his girlfriend at the time, who was also in recovery, began using drugs again. Since that time, Behr has been in and out of drug treatment programs and has used cocaine on and off since college. Behr last used cocaine in December 2003, which led to the revocation of his bail in the instant case. Since being incarcerated, Behr has participated in a drug abuse education course. He stated that he feels he needs continued drug treatment.
Behr's employment history is comprised of a number of sales jobs, the details of which are adopted as set for in the Pre-Sentence Investigation Report dated 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 Behr 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. Approximately 77 victims suffered from the instant offenses.
Behr's involvement in the conspiracy was limited in scope and duration. He worked for the companies Quarters Only and PowerVend, but did not participate in the scheme that was undertaken under the name Traditional Steel. As such, the duration of his involvement amounts only to roughly two months.
The specific facts of the underlying offenses are adopted as set forth in the Pre-Sentence Investigation Report dated March 15, 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 $142,565.34 is owed to the victims in this case.
The Guidelines
The April 30, 2003 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 $142,565.34. Because the amount of loss was greater than $120,000, but less than $200,000, the offense level is increased by 10 levels, pursuant to § 2B1.1(b) (1) (F).
Because the offense involved ten or more victims, the offense level is increased by 2 additional levels. See U.S.S.G. § 2B1.1(b) (2) (B).
Behr 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 15.
Criminal History
On May 22, 1989, Behr was arrested for robbery in the second degree, an offense which results in three criminal history points.
On June 3, 1993, Behr was arrested for criminal possession of stolen property in the fifth degree, an offense which results in one criminal history point.
On April 30, 1994, Behr was arrested for burglary in the third degree, an offense which results in three criminal history points.
On November 12, 1997, Behr was arrested for criminal possession of a controlled substance in the seventh degree, an offense which results in two criminal history points.
On April 12, 1999, Behr was arrested for unauthorized use of a motor vehicle, an offense which results in one criminal history point.
On March 3, 2000, Behr was arrested for false impersonation and aggravated unlicensed operation of a motor vehicle in the third degree, offenses which result in one criminal history point.
On October 13, 2001, Behr was arrested for petit larceny, an offense which results in one criminal history point.
The total number of criminal history points is twelve. According to the sentencing table at Chapter 5, Part A, one criminal history point establishes a Criminal History Category of V.
Sentencing Options
Based on a total offense level of 15 and a Criminal History Category of V, the guideline range for imprisonment is 37 to 46 months.
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 $4,000 to $40,000. See U.S.S.G. § 5E1.1(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' losses.
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."
With respect to the history and characteristics of the defendant, the Court takes note of Behr's longstanding struggle with an addition to cocaine. As noted above, Behr became addicted to cocaine shortly after completing college and since then has battled to overcome it. Behr's criminal record is undoubtedly extensive. However, his legal problems also seem to be related to his drug addiction and the need to support his habit. Behr has been drug free for two and a half years during his incarceration, and he has participated and completed drug abuse counseling while in jail.
In accordance with 3553(a) (1) and (2), Behr's role and involvement in the instant offenses also bears relevance to the appropriate sentence to be imposed. While the fraud conspiracy lasted for well over a year, it is noteworthy that Behr's involvement was limited to the two short-lived companies, Quarters Only and Power Vend. Combined, Behr's tenure with both companies amounts to less than two months. As such, unlike his co-defendants Darrin Mosca, William Martin, and Robert Gordon, who were involved in the conspiracy for over a year from its inception, Behr's involvement was at the tail end and was limited to a short period of time. While Behr may not be entitled to a mitigating role adjustment, the duration and the extent of his involvement is deemed relevant to the nature of the offense, the penalty that will provide just punishment, and the need to provide unwarranted sentencing disparities.
The guidelines range for both of the planners of the fraudulent scheme, Darrin Mosca and William Martin, is 46-57 months. Given the extensive nature of their involvement and culpability as compared to Behr's, a difference of only nine months does not adequately reflect the differences noted, even in light of the fact that Behr has a criminal history category of V.
Finally, pursuant to the Court's obligation to impose a penalty that will provide "just punishment for the offense," pursuant to 3553(a) (2), it is noted that Behr has been housed for 29 months at the Metropolitan Correctional Center (the "MCC"), a pre-trial detainee institution that is not designed for long-term stays. The MCC houses criminals of all types of offenses together in 26-bed dormitories. It is overcrowded, unsanitary, and lacks certain facilities.
Many courts have recognized the severity of pretrial incarceration, and have highlighted that as an administrative form of detention, it should not rise to the level of punishment.See, e.g., Bell v. Wolfish, 441 U.S. 520, 537-38 (1979); see also United States v. Gallo, 653 F. Supp. 320, 336 (E.D.N.Y. 1986) (noting that "[t]he inevitable consequences of pretrial incarceration, particularly when prolonged beyond a short period, are undeniably severe.") Recently, the Honorable Kimba Wood reduced an individual's sentence by one third based upon the harsh conditions in Unit 11-South at the MCC, the same building in which Behr has been housed for nearly 29 months.
For the reasons set forth above, it is concluded that a non-guidelines sentence is warranted here. In light of the nature of the offense and the history and characteristics of the offender outlined above, it is determined that the 29 months Behr has served in the harsh conditions of the MCC is a penalty sufficient to afford just punishment for his offenses. The Sentence
Behr is hereby sentenced to a term of imprisonment of time served. A sentence of two years' supervised release is also imposed. Behr 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, Behr 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 shall participate in a program approved by the United States Probation Office, which program may included testing to determine whether he has reverted to using drugs or alcohol, as set forth in the Pre-sentence investigation report.
It is further ordered that the defendant shall make restitution payable to the Clerk, U.S. District Court, in the amount of $142,565.34, 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.
Behr shall also pay to the United States a special assessment of $200, which shall be due within a week. Due to the imposition of restitution, the fine in this case is waived.