Opinion
02 Cr. 1511 (RWS)
October 24, 2003
SENTENCING OPINION
On June 6, 2003, defendant Benjamin Castro ("Castro") pleaded guilty to one count of Failure to Pay Child Support, 18 U.S.C. § 228 (a)(1) and (c)(1), a Class B Misdemeanor, and one count of Failure to Pay Child Support, 18 U.S.C. § 228(a)(3) and (c)(2), a Class E Felony.
On March 11, 1993, Castro entered into a Consent Order, in the Circuit Court for Carroll County, Maryland. Castro admitted that he was the father of three children, that he had a duty of support to his minor dependents, that he would pay $400 per month in child support, that he would provide health insurance coverage for his three children, and that "the payment of support . . . takes priority over payment of debts and other obligations." The Consent Order bears the signature of Castro, the State's Attorney, and a Circuit Court Judge.
In an ongoing investigation in 2002 by the New York City Office of Child Support Enforcement (OCSE) of substantial child support debtors it was noticed that Castro had not made any child support payments. OCSE records indicated that Castro was a resident of Bronx, New York, had not made any child support payments, and as of June 1, 2002, Castro owed approximately $37/400 in back child support. OCSE records further indicated that Castro's three children were the subjects of the Consent Order and reside in Maryland. As a result of these findings, a referral was made to the United States Department of Health and Human Services, Office of the Inspector General, Office-of Investigations.
On July 17, 2002, two HHS agents interviewed Castro. Castro stated that he "screwed up" by not making any child support payments. Castro stated that since 1987, he had worked "off the books" as a "freelance carpenter" making $300 to $400 per week. He also stated that in February 2002, he married a woman who owns a daycare center in Bronx, New York. According to Castro, his wife receives $125 per child per week, and at that time her facility cared for twelve children.
HHS agents reviewed bank records pertaining to accounts maintained by Castro dating from January 5, 2002 through June 5, 2002. Over that five-month period, approximately $8,000 was withdrawn. Copies of cancelled checks reflect that Castro used the account to pay various debts and obligations, including payments to Sears, Verizon, Geico and Midland Mortgage Company.
On June 26, 2002, in the United States District Court, Southern District of New York, an arrest warrant was issued for Castro. On July 29, 2002, Castro was arrested by the agents of the HHS.
Victim Impact
The victims are Castro'g children who were not financially supported by their father due to his negligence. The case agent indicated that the current outstanding amount of child support is $41,000.
The Guidelines Offense Level
The 2002 edition of the Guidelines Manual has been used in this case.
Both Counts One and Two charge the Failure to Pay Child Support. However, because Count One is a Class B Misdemeanor, the Guidelines do not apply to that Count pursuant to § 1Bl.9. As a result, the guideline calculations will be calculated using only Count Two.
The guideline for a violation of 18 U.S.C. § 228 (a)(3) is found in Application Note 2 to § 2J. 1.1, which states that "the most analogous guideline is § 2BI.1." Section 2Bl.1 provides `for a base offense level of 6.
According to Application Note 2 to § 2J1.1, the arrtount of loss under § 2Bl. 1 is the amount of child support that the defendant willfully failed to pay. The defendant owes approximately $41,000 in unpaid child support. Section 2Bl.1(b)(1)(D) provides that if the offense involved between $30,000 and $70,000, a six level increase is warranted, for a total offense level of 12.
The government also argues that an additional two-level increase is warranted under § 2Bl.l(b)(7)(C), which provides for such an increase if the offense involved "a violation of any prior, specific judicial . . . order . . . not addressed elsewhere in the guidelines." The government argues that the Consent Order, that Castro entered into in 1993, in which he agreed to make monthly payments of $400 for his three children, constitutes such a prior judicial order.
In response, Castro argues that neither the plain language of the guidelines provision, nor its commentary support the application of the 2-level enhancement in a failure to pay court-ordered child support case. Castro argues that the fact: that there has been a prior judicial order has been addressed elsewhere in the guidelines, namely in § 2J1.1, the guideline applicable to violations of 18 U.S.C. § 228. Castro argues that a prior court order is a necessary condition for Castro to be guilty of violating 18 U.S.C. § 228(a)(3) and (c)(2).
Castro argues that it would constitute impermissible double counting to apply the enhancement to crimes that, by definition, require the existence of a prior legal obligation that has been willfully ignored. "Impermissible double counting occurs when one part of the guidelines is applied to increase a defendant's sentence to reflect the kind of harm that has already been fully accounted for by another part of the guidelines." United States v. Napoli, 179 F.3d 1, 12 n. 9 (2d Cir. 1999), cert. denied 528 U.S. 1162, 120 S.Ct. 1176, 145 L.Ed.2d 1084 (2000) (internal quotation marks and citations omitted)egl. However, "multiple adjustments may properly be imposed when they aim at different harms, emanating from the same conduct." U.S. v. Volpe, 224 F.3d 72, 76 (2d Cir. 2000).
There are no reported decisions applying the enhancement for violation of a judicial order in the context of sentencing for failure to pay court-ordered child support. The commentary on § 2Bl. 1(b)(7)(C) is entitled "Fraud in Contravention of a Prior Judicial Order," suggesting that this subsection has in common with each of the other subsections of § 2Bl.l(b)(7) that a misrepresentation must be involved. The text of the Application Note supports this interpretation:
Subsection (b)(7)(C) provides an enhancement if the defendant commits a fraud in contravention of a prior, official judicial or administrative warning, in the form of an order, injunction, decree, or process, to take or not to take a specified action. A defendant who does not comply with such a prior, official judicial or administrative warning demonstrates aggravated criminal intent and deserves additional punishment.
U.S.S.G. § 2Bl.1, comment (n. 5(C). The Application Nobe to § 2Jl., 1, the guideline referenced in the Statutory Index to the Sentencing Guidelines for violations of 18 U.S.C. § 228, contains no reference to § 2Bl.l(b)(7)(C). The enhancement for violation of a prior judicial order is not appropriate in the context of a case involving failure to pay court-ordered child support. Further, impermissible double counting would result from the application of the enhancement to a violation of 18 U.S.C. § 228. The violation of the court order is already taken into account as one of the elements of the offense, and the offense itself has been taken into account by § 2J1.1. Accordingly, the § 2Bl.l(b)(7)(C) will not be applied.
Castro also notes that the most recent amendments to § 2J1.1, which take effect on November 1, 2003, include a new Application Note explaining that the § 2Bl.l(b)(7)(C) enhancement applies in the cases involving a violation of a judicial order enjoining fraudulent behavior. No such statement is made in Application Note 2, which pertains to failure to pay court-ordered child support. The new Application Note thus provides further evidence that the omission was deliberate.
Based on Castro's plea allocution, Castro has shown recognition of responsibility for the offense. Pursuant to § 3El.1(a), the offense is reduced two levels.
Total Offense Level
Castro's total offense level is 10 under the Guidelines.
Criminal History Category
In 1971, Castro was convicted of Petit Larceny in Bronx Criminal Court. Castro was sentenced to pay a fine of $10 or ten days custody. Castro paid the fine. In 1974, Castro was convicted of Resisting Arrest/Obstructing Justice in Bronx Criminal Court. Castro was sentenced to pay a fine of $25 or five days custody. Castro paid the fine.
As these convictions do not result in any criminal history points, the Criminal History Category is I. Applicable Guidelines Range
The provisions under which Castro pleaded guilty provide for a maximum sentence of six months, pursuant to 18 U.S.C. § 228 (a)(1), and two years pursuant to 18 U.S.C. § 228 (a)(3). Based on a total offense level of 10 and a Criminal History category of I, the Guidelines range for imprisonment is 6 to 12 months.
Castro's sentence falls within Zone B of the sentencing table. Thus, the minimum term may be satisfied by (1) a sentence of imprisonment; (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 month is satisfied by imprisonment; or (3) a sentence of probation that includes a condition or combination of conditions that substitute intermittent confinement, community confinement, or home detention for imprisonment. § 5Cl.l(c). Because Count One is a misdemeanor, a term of probation of not more than five years may be imposed pursuant to 18 U.S.C. § 3561(c)(1). Count Two is a felony, and from one to five years of probation is authorized under 18 U.S.C. § 3561(c)(2). In addition, one of the following must be imposed as a condition of probation unless extraordinary circumstances exist: a fine, restitution, or community service, pursuant to 18 U.S.C. § 3563(a)(2). The terms of probation run concurrently.
Castro may be ordered to pay restitution, pursuant to 18 U.S.C. § 3663. Destitution in the amount of $41,000 is outstanding. Restitution is due immediately. Any unpaid restitution shall become a condition of probation or supervised release. Under § 5El.1, restitution shall be ordered.
Castro argues that failure to pay child support cases fall outside of the heartland of § 2Bl.1, which "does not adequately contemplate the need for restitution or the practicalities of ensuring restitution.United States v. Blackburn, 105 F. Supp.2d 1067, 1069 (D.S.D. 2000). Following a conviction under 28 U'.S.C. § 228(a)(3), theBlackburn court departed downward in part because § 2Bl.1 "was not written with failure to pay child support in mind."Id. at 1068.
Castro also argues that the direction to apply "the most analogous guideline" under § 2X5.1, and the Note to § 2J1.1, necessarily takes this case out of the heartland of § 2Bl.1. See United States v. Osborne, 164 F.3d 434, 438 (8th Cir. 1999) (holding that "§ 2X5.1 cases are inherently out of the ordinary," and that district courts should therefore "have more freedom to fashion the appropriate sentence in these unconventional situations on a case by case basis."). The Seventh Circuit has made the strongest statement on this issue, stating that,
We seriously doubt that a case in which a district court is required to apply the most "analogous" guideline pursuant to U.S. S. G. § 2X5.1 can ever be found to fall within the "heartland" of that guideline. Instead, we believe such a case is, by definition, an "unusual case" and, therefore, a suitable candidate for either an upward or a downward departure.United States v. Leahy, 169 F.3d 433, 441 (7th Cir. 1999) Because a term of probation is within the guideline range, the Court need not decide whether violations of 28 U.S.C. § 228(a)(3) necessarily fall outside of the heartland of § 2Bl.1.
The Sentence
In light of the foregoing, and in recognition of the victim's need for restitution, Castro will be sentenced to probation for a term of five years, with six months of that term to be served in home detention. As mandatory conditions of probation, Castro shall (1) not commit another federal, state or local crime; (2) not illegally possess a controlled substance; and (3) not possess a firearm or destructive device; and (4) refrain from any unlawful use of a controlled substance. Castro shall submit to one drug test within fifteen days of placement on probation and at least two unscheduled drug tests thereafter, as directed by the probation officer. Castro shall provide the probation officer with access to any requested financial information. Castro shall pay a special assessment of $110, which shall be due immediately. Castro must also make restitution in the amount of $41,000. Any unpaid restitution shall become a condition of probation. Castro shall notify the United States Attorney for this district within 30 days of any change of mailing or residence address that occurs while any portion of the restitution remains unpaid.
This sentence is subject to modification at the sentencing hearing now set for October 28, 2003.
It is so ordered.