Opinion
06 Cr. 727 (RWS).
November 5, 2007
SENTENCING OPINION
On November 8, 2006, Howard Palmer ("Palmer") pleaded guilty to one count of passport fraud, in violation of 18 U.S.C. § 1542, a Class C felony. For the reasons set forth below, Palmer will be sentenced to a term of probation of two years and will be required to pay a fine of $500, as well as a special assessment of $100.
Prior Proceedings
Palmer was arrested on May 25, 2006, and released on $50,000 bond that same day. An indictment was entered in the Southern District of New York on August 24, 2006, charging that on or about February 4, 2003, Palmer unlawfully, willfully and knowingly made a false statement in an application for a United States passport with the intent to induce and secure the issuance of a passport for his own use.
On August 31, 2006, Palmer appeared before the Honorable James C. Francis of this district and pleaded not guilty to the charged criminal conduct. On November 8, 2007, Palmer appeared before the Honorable Gabriel W. Gorenstein of this district, at which time he withdrew his not guilty plea and entered a plea of guilty, without a plea agreement, to the count charged in the indictment. Palmer's guilty plea was accepted by this Court on November 9, 2006. He is scheduled to be sentenced on November 6, 2007.
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
The Offense Conduct
On or about February 4, 2003, Palmer applied for a United States passport at the New York County Clerk's office. Palmer included false information about his identity in his application, including a false name, false social security number, and false place and date of birth.
The Relevant Statutory Provisions
The maximum term of imprisonment is a term of ten years, pursuant to 18 U.S.C. § 1542. In addition, pursuant to 18 U.S.C. § 3583(b)(2), if a sentence of imprisonment is imposed, the Court may impose a term of supervised release of not more than three years.
Palmer 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. The maximum fine is $250,000, pursuant to 18 U.S.C. § 3571. A special assessment of $100 is mandatory, pursuant to 18 U.S.C. § 3013(a)(2)(A).
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 Guidelines
The November 1, 2006, edition of the United States Sentencing Commission Guidelines Manual (as updated by the May 1, 2007 Supplement) has been used in this case for calculation purposes, pursuant to U.S.S.G. § 1B1.11.
The Guideline for a violation of 18 U.S.C. § 1542 is found in U.S.S.G. § 2L2.2. Pursuant to U.S.S.G. § 2L2.2(a), the base offense level is 8.
Based on his plea allocution, Palmer has shown recognition of responsibility for the offense. Pursuant to U.S.S.G. § 3E1.1(a), the offense level is reduced two levels. Therefore, Palmer's adjusted total offense level is 6.
Palmer has one prior criminal conviction, a 2003 conviction in New York Supreme Court for Criminal Possession of Marijuana in the First Degree, for which he received a conditional discharge and was ordered to pay a $500 fine. Thus, Palmer has 1 criminal history point and a Criminal History Category of I.
Based on a total offense level of 6 and a Criminal History Category of I, the Guidelines range for imprisonment is 0 to 6 months.
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(a). 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(a)(1), Palmer is eligible for probation because the applicable Guidelines range is in Zone A of the Sentencing Table. Because the total offense level is 6, if the Court imposes probation, the term must be at least one year, but not more than five years, pursuant to § 5B1.2(a)(1).
The Guidelines fine range for the instant offense is from $500 to $5,000, pursuant to U.S.S.G. § 5E1.2(c)(3). Subject to the Defendant's ability to pay, in imposing a fine, the Court shall consider the expected costs to the Government of any imprisonment, probation, or supervised release, pursuant to U.S.S.G. § 5E1.2(d)(7). The most recent advisory from the Administrative Office of the United States Courts suggests a monthly cost of $2,036.92 to be used for imprisonment, a monthly cost of $294.60 for supervision, and a monthly cost of $1,799.04 for community confinement.
The Remaining Factors of 18 U.S.C. § 3553(a)
Having engaged in the Guidelines 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.
Having considered all of 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, Palmer is hereby sentenced to a term of probation of two years. In addition, Palmer is to pay a fine of $500, which shall be paid in monthly installments of $45.00 over a period to commence 30 days after the date of judgment. Palmer is further ordered to pay a mandatory special assessment of $100, which shall be due to the United States immediately.
As mandatory conditions of his period of probation, Palmer 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 imposition of a special condition requiring drug treatment and testing.
The Defendant will comply with the standard conditions of supervision (1-13), outlined in the judgment, along with the following special conditions:
(1) The Defendant will participate in a program approved by the United States Probation Office, which may include testing to determine whether the defendant 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. The defendant will be required to contribute to the costs of services rendered (co-payment), in an amount determined by the probation officer, based on ability to pay or availability of the third-party payment.
(2) The Defendant shall obey the immigration laws and comply with the directives of immigration authorities.
Palmer is therefore directed to report to the nearest Probation Office within 72 hours of the imposition of this sentence to commence his term of probation. It is recommended that Palmer be supervised by the district of his residence.
The terms of this sentence are subject to modification at the sentencing hearing set for November 6, 2007.
It is so ordered.