Opinion
03 Cr. 1115-03 (RWS).
January 17, 2007
HON. MICHAEL J. GARCIA, United States Attorney for the Southern District of New York, The Silvio J. Mollo Building, New York, NY, By: WILLIAM J. HARRINGTON, ESQ., Assistant U.S. Attorney
PAUL, WEISS, RIFKIND, WHARTON GARRISON LLP, Attorney for Defendant Robert Gordon, New York, NY, By: ALEX YOUNG K. OH, ESQ., AUDRA J. SOLOWAY, ESQ.
OPINION
Defendant Robert Gordon ("Gordon" or "Defendant") has moved for an order pursuant to 18 U.S.C. § 3143(b) directing his release pending an appeal of his sentence. For the reasons set forth below, the motion is denied.
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: (1) engaged in a conspiracy to commit mail fraud, in violation of 18 U.S.C. § 1349 (Count One); and (2) 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 and 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 of the indictment. On June 13, 2006, this Court sentenced Gordon to a term of imprisonment of 37 months, two years' supervised release, restitution in the amount of $542,985 for disbursement to the individual victims, and a mandatory special assessment of $200.See United States v. Gordon, No. S2 03Cr. 1115-03(RWS), 2006 WL 1675921 (S.D.N.Y. June 13, 2006). Pursuant to the judgment entered on June 14, 2006, Gordon was required to surrender to the Bureau of Prisons (the "BOP") on January 2, 2007, to begin serving his sentence.
By an order of the Court filed on December 4, 2006, Gordon was relieved of his obligation to surrender to the BOP on January 2, 2007, and was instead directed to surrender to the BOP on January 4, 2007.
In a letter to the Court dated June 21, 2006, Gordon's attorney requested that the Court "correct a sentence that resulted from arithmetical, technical, or other clear error" pursuant to Rule 35(a) of the Federal Rules of Criminal Procedure. (Soloway Decl. Ex. E 1.) The following day, Gordon's attorney sent a second letter to the Court instead requesting that, due to the time limitations imposed by Rule 35, the Court vacate Gordon's sentence and judgment of conviction. (Id. Ex. F.) The Court did not treat the June 22, 2006 letter as a motion.
A notice of appeal of the judgment was filed on June 27, 2006. The instant motion for release pending appeal of the sentence was filed on November 15, 2006. The motion was heard and marked fully submitted on January 3, 2007. By order of this Court filed on January 8, 2007, the date of Gordon's surrender to the BOP was deferred to January 24, 2007.
The Sentencing of Co-Defendants Gordon and Martin
In its sentencing opinion, this Court provided three primary reasons for sentencing Gordon to a term of imprisonment of 37 months. First, the Court conducted a full Guidelines analysis, as per the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2nd Cir. 2005), which resulted in a Guidelines range of 46 to 57 months. See Gordon, 2006 WL 1675921, at *2-3.
Second, having given due consideration to the remaining factors in 18 U.S.C. § 3553(a), including 3553(a)(1), (a)(2)(A), and (a)(2)(B), the Court concluded that a non-Guidelines sentence was warranted, in part, because Gordon's criminal history "did not accurately reflect his likelihood to commit future crime or a higher level of culpability" and therefore "substantially over-represents the seriousness of the defendant's criminal history." Id. at *4 n. 1 (quoting U.S.S.G. § 4A1.3 and citingUnited States v. Hernandez, No. 04 Cr. 424-20(RWS), 2005 WL 1423276 (S.D.N.Y. June 13, 2005)).
As noted by this Court: "[S]ection 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 section 3553(a)(2)(B)." Gordon, 2006 WL 1675921, at *3.
Third, the Court reasoned that sentencing Gordon within his Guidelines range of 46 to 57 months would have created an "unwarranted sentence disparit[y]" pursuant to 18 U.S.C. § 3553(a)(6), because the organizer and leader of the underlying conspiracy was to receive the same sentence. See Gordon, 2006 WL 1675921, at *4. The Court determined that Gordon's role was more similar to that of his co-defendant, William Martin ("Martin"), who under the U.S. Sentencing Guidelines was to receive a Guidelines sentence of 37 months' imprisonment. Id. Based on this reasoning, Gordon was sentenced by this Court to a below-Guidelines sentence of 37 months' imprisonment. Id.
Martin's sentencing hearing took place after Gordon's sentencing hearing. At Martin's sentencing hearing, his counsel advocated for a lesser sentence due to Martin's substantial effort to cooperate, his substantial effort to rehabilitate himself, and his advanced age. (Soloway Decl. Ex. D 6:12 — 12:7.) The Court decided to sentence Martin to five years probation, 500 hours of community service, continued mental health treatment, restitution, and a mandatory special assessment. (Id. at 17:3-6 and 17:19-20.) In reaching this decision, which differed from the Court's proposed sentencing opinion in which Martin was to receive a Guidelines sentence of 37 months' imprisonment, the Court stated: "I do [this] almost entirely on 3553(a)(1) factors, taking into consideration what I genuinely believe to be a change in attitude and a rehabilitation by Mr. Martin. . . . [T]here is another, I think quite significant factor, and that's Mr. Martin's age and the effect of a sentence of 37 months on him." (Id. at 17:7-9 and 17:14-16.)
Mr. Martin was 64-years old at the time of his sentencing hearing. (Soloway Decl. Ex. D. 8:9.)
Discussion 1. The Standard for Release Pending Appeal Pursuant to 18 U.S.C. § 3143(b)
In determining Gordon's application for release pending appeal, the court must apply 18 U.S.C. § 3143(b)(1). That section provides that:
. . . the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for writ of certiorari, be detained, unless the judicial officer finds —
(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community . . .; and
(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in —
(i) reversal,
(ii) an order for a new trial,
(iii) a sentence that does not include a term of imprisonment, or
(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.
If the judicial officer makes such findings, such judicial officer shall order the release of the person. . . .18 U.S.C. § 3143(b)(1).
The application of § 3143(b)(1) therefore results in a four-part test as follows: (1) that the person is not likely to flee or pose a danger to the safety of any other person or the community; (2) that the appeal is not for the purpose of delay; (3) that the appeal raises a substantial question of law or fact; and (4) that if that substantial question is determined favorably to the defendant on appeal, that decision is likely to result in a sentence that does not include a term of imprisonment or a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process. See United States v. Randell, 761 F.2d 122, 125 (2d Cir. 1985) (citing United States v. Miller, 753 F.2d 19, 24 (3d Cir. 1985); United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985)), cert. denied, 474 U.S. 1008 (1985). 2. Gordon's Appeal Does Not Raise a Substantial Question of Law or Fact
In Randell, the Court was evaluating an application for bail pending the determination of an appeal from a judgment of conviction. See 761 F.2d 122. Accordingly, the fourth prong of the standard adopted in Randell used the language from 18 U.S.C. § 3143(b)(1)(B)(i) and (ii): "that if the substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial on all counts on which imprisonment has been imposed." Randell, 761 F.2d at 125. Because this Court is considering an application for bail pending the determination of an appeal from a sentence, rather than from a conviction of judgment, the Court has substituted the language from 18 U.S.C. § 3143(b)(1)(B)(iii) and (iv) in the fourth prong of the standard.
The Government has opposed Gordon's motion on the sole ground that it does not raise a substantial question of law or fact and therefore does not satisfy the third part of the four-part standard outlined above. (Ltr. in Opp., U.S. Att'y, S.D.N.Y., 2 (Dec. 1, 2006).) The Court agrees with the Government that Gordon's appeal does not raise a substantial question of law or fact, but reaches this conclusion on different reasoning; specifically, that the Court's consideration of Martin's Guidelines sentence was not an "incorrect assumption," even though Martin ultimately received a below-Guidelines sentence.
In United States v. Randell, the Second Circuit defined "a substantial question of law or fact" as "`one of more substance than would be necessary to a finding that it was not frivolous. It is a "close" question or one that very well could be decided the other way.'" Randell, 761 F.2d at 125 (quoting Giancola, 754 F.2d at 901).
Gordon has contended on his appeal that his sentence must be vacated and remanded to this Court for resentencing because "a sentence based even in part on an incorrect, material assumption cannot stand under well-settled principles of due process." (Def.'s Mem. in Supp. 1-2, 8 (citing United States v. Malcolm, 432 F.2d 809, 816 (2d Cir. 1970); United States v. McDavid, 41 F.3d 841, 843-44 (2d Cir. 1994)).) Specifically, Gordon has argued that the Court sentenced him to a term of imprisonment of 37 months on the "incorrect, material assumption" that his co-defendant, Martin, was also going to be sentenced to 37 months' imprisonment. (Def.'s Mem. in Supp. 3-4.) Therefore, the issue before the Court is whether Gordon's due process violation claim presents a "close question of law."
The Government has argued that based on United States v. Joyner, 924 F.2d 454, 460 (2d Cir. 1991), and its progeny, disparate sentences among federal co-defendants is not an appropriate grounds for a departure from the Guidelines and therefore Martin's sentence is immaterial and irrelevant to Gordon's sentence. (Ltr. in Opp., U.S. Att'y, S.D.N.Y., 3 (citingUnited States v. Tejeda, 146 F.3d 84, 87 (2d Cir. 1998); United States v. Alba, 933 F.2d 1117, 1123 (2d Cir. 1991); United States v. Restrepo, 936 F.2d 661, 670-71 (2d Cir. 1991); United States v. Minicone, 960 F.2d 1099, 1111 (2d Cir.), cert. denied, 503 U.S. 950 (1992); United States v. Blackwell, 127 F.3d 947, 951-52 (10th Cir. 1997)).)
The Defendant has rebutted this argument by noting that Joyner and its progeny were decided prior to the Supreme Court's decision in Booker, 543 U.S. 220, and that in the post-Booker, advisory Guidelines regime, the Second Circuit has recognized it to be an open question whether a court may consider co-defendants' sentences in fashioning a non-Guidelines sentence. (Def.'s Reply Ltr. 3 (citing United States v. Florez, 447 F.3d 145, 157-58 (2d Cir. 2006); United States v. Fernandez, 443 F.3d 19, 31-32 n. 9 (2d Cir. 2006).)
In fashioning Gordon's sentence, this Court exercised its discretion to compare Gordon's calculated Guidelines range with that of his co-defendants. See Gordon, 2006 WL 1675921, at *4 (quoting Ferrara v. United States, 372 F. Supp. 2d 108, 121 (D. Mass. 2005) (quoting United States v. Hensley, 363 F. Supp. 2d 843, 844-45 (W.D. Va. 2005)); citing United States v. McGee, 408 F.3d 966, 988 (7th Cir. 2005); Simon v. United States, 361 F.Supp.2d 35, 49 (E.D.N.Y. 2005)) ("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."'"). Specifically, in consideration of "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct," 18 U.S.C. § 3553(a)(6) (emphasis added), this Court compared Gordon's calculated Guidelines range (46-57 months) to that of his co-defendants, Darrin Mosca (46-57 months) and Martin (37-46 months). This was a comparison of their Guidelines calculations based solely on their criminal histories and offense conduct.
Therefore, while this Court may have considered Martin's Guidelines range relevant to Gordon's sentence, that Martin ultimately received a below-Guidelines sentence based on the Court's consideration of his individual characteristics pursuant to 18 U.S.C. § 3553(a)(1), including his age, was not material to the sentencing of Martin's co-defendants, including Gordon, even in consideration of 18 U.S.C. § 3553(a)(6). Put another way, this Court's decision regarding Gordon's sentence was not based on an "incorrect assumption," but rather on the selective consideration of those aspects of Gordon's co-defendants' sentences that were relevant.
In all of the cases cited by the defense in which a sentence was vacated and remanded on due process grounds, the sentencing judge had been under a mistaken impression regarding some central fact or characteristic of the defendant's own criminal record or conduct, such as whether the defendant was on probation at the time that the crime was committed, United States v. McDavid, 41 F.3d 841, 843-44 (2d Cir. 1995); whether allegations that defendants had been involved in a separate, uncharged crime were reliable and accurate, United States v. Pugliese, 805 F.2d 1117, 1123-24 (2d Cir. 1986); whether defendant had attempted to "fix" an earlier case and feigned suicide in an attempt to avoid prison, United States v. Stein, 544 F.2d 96, 102-03 (2d Cir. 1976); or defendant's prior criminal record and cooperation with the Government, United States v. Malcolm, 432 F.2d 809, 815-16 (2d Cir. 1970). The material falsity of such mistaken assumptions or impressions far exceeds that of the claimed "incorrect assumption" at issue on this motion.
As the defense acknowledges (Def. Mem. in Supp. 8 n. 1), the rule that a sentence grounded in a materially incorrect assumption violates due process derives from the Supreme Court's ruling in Townsend v. Burke, 334 U.S. 736 (1948): "[I]t is the careless or designed pronouncement of sentence on a foundation so extensively and materially false, which the prisoner had no opportunity to correct by the services which counsel would provide, that renders the proceedings lacking in due process." 334 U.S. at 741 (emphasis added).
Finally, it is important to note that Gordon was afforded the same opportunity as his co-defendants to argue for and did argue for a lesser sentence based, at least in part, on his own rehabilitation. (Def.'s Reply Ltr. 4 (referring to Gordon's sentencing submission of May 26, 2006); Soloway Decl. Ex. A 4:19 — 5:3 Ex. I; Gordon's sentencing submission (May 26, 2006).) The assertion that "[h]ad the Court been aware that it would give Mr. Martin a non-jail sentence because of Mr. Martin's rehabilitation, then the Court may have given greater weight to Mr. Gordon's own rehabilitation" is without reason. (Def.'s Reply Ltr. 3.) Having fully and equally considered both co-defendants' claims of rehabilitation, the fact that the Court chose to reduce Martin's and not Gordon's sentence based on this particular factor in no way constitutes a violation of due process.
Accordingly, the Court determines that Gordon raises no substantial question of law or fact and therefore fails to satisfy the third part of the four-part test for granting a defendant's release pending appeal.
3. Even If Gordon's Appeal Was Determined in His Favor, It Is Not Likely to Result in a Non-Prison or Significantly Reduced Sentence
This Court sentenced Gordon after engaging in a full Guidelines analysis and having given due consideration to the remaining factors identified in 18 U.S.C. § 3553(a), as per the Supreme Court's decision in Booker, 543 U.S. 220, and the Second Circuit's decision in Crosby, 397 F.3d 103. See Gordon, 2006 WL 1675921, at *2-4. Therefore, even if Gordon's sentence were to be vacated and remanded, it is notlikely that he would receive a non-prison sentence or a sentence "to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process." 18 U.S.C. § 3143(b)(1)(B)(iv). Accordingly, Gordon cannot satisfy the fourth part of the four-part test for granting release pending the appeal of his sentence.
Defendant has indicated that the median duration of an appeal in the Second Circuit is thirteen months. (Def.'s Mem. in Supp. 11.)
Conclusion
For the forgoing reasons, Gordon's motion for an order pursuant to 18 U.S.C. § 3143(b) directing his release pending the appeal of his sentence is denied. As per the Court's order filed on January 8, 2007, Gordon is to surrender to the Bureau of Prisons on January 24, 2007, in order to begin serving his sentence.
It is so ordered.