Opinion
98 Cr. 927 (RWS)
June 2, 2000
SENTENCING OPINION
Defendant Rene Ramirez ("Ramirez") pled guilty on March 20, 2000 to conspiracy to distribute one kilogram or more of heroin in violation of 21 U.S.C. § 846. For the reasons set forth below, Ramirez will be sentenced to 120 months in prison followed by a three-year term of supervised release, subject to the hearing now set for June 5, 2000. Pursuant to 18 U.S.C. § 3013, a special assessment of $100.00 is mandatory.
The Guidelines
The Presentence Report prepared by the U.S. Probation Office (the "Presentence Report") grades Ramirez's offense conduct under the United States Sentencing Guidelines (the "Guidelines") at a total offense level of 33, after a two-level decrease for acceptance of responsibility, see Guidelines § 3E1.1(a). and a one- level decrease for having timely notified the Government of his intention to enter a plea of guilty thereby permitting the Government to avoid preparing for trial and permitting the Court to allocate its resources efficiently, see Guidelines § 3E1.1(b). The Presentence Report assigns Ramirez a criminal history category of I.
The Guidelines provide for a sentence of between 135 and 168 months. The statutory minimum term of imprisonment is ten years, or 120 months. See 21 U.S.C. § 841 (b)(1)(A)
Justification For A Downward Departure
Ramirez's personal history, though not long at the age of nineteen, has been one deeply scarred by abuse. Ramirez is the youngest of two children born to his mother and father. His older brother is a co-defendant in this case. Ramirez's parents separated when he was about one-year old and he was then raised in the household of his mother and stepfather. Ramirez's older brother, three half-siblings, and his grandmother also resided there. The environment in that household was marked by extreme abuse. Ramirez's stepfather often handcuffed their mother and locked the children up while beating her. He also subjected Ramirez and the other children to frequent physical abuse, including beating them with a belt soaked in alcohol. The children also regularly observed both their mother and stepfather using and dealing drugs. Between the time that Ramirez was six and nine years of age, the home was the subject of frequent police raids. In addition, Ramirez and his brother regularly observed his mother on the street working as a prostitute at the insistence of their stepfather. Ramirez's mother was incarcerated on a drug conviction for five years, beginning when Ramirez was eleven years old. When Ramirez was fifteen, his stepfather committed suicide by hanging.
Section 5K2.0 of the Guidelines provides the court with the discretion to depart from the applicable sentencing range if "`there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken in consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.'" Guidelines 5k2.0, p.s. (quoting 18 U.S.C. § 3553 (b)). Section 5H1.3 states that "mental and emotional conditions are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range, except as provided in Chapter Five, Part K, Subpart 2 (Other Grounds For Departure)." Guidelines 5H1.3.
The Second Circuit and several other courts of appeal have held that, pursuant to the aforementioned Guideline provisions, "a downward departure may be appropriate in cases of extreme childhood abuse." United States v. Rivera, 192 F.3d 81, 84 (2d Cir. 1999) (citing cases); see also. e.g., United States v. Roe, 976 F.2d 1216, 1218 (9th Cir. 1992) (finding abuse of discretion for failure to grant departure where defendant's abusive upbringing included inter alia living with drug-addicted mother and mother's boyfriend who subjected defendant to "routine" and "savage" sexual and physical abuse and degradation). It is "beyond question that abuse suffered during childhood — at some level of severity — can impair a person's mental and emotional conditions." Rivera, 192 F.3d at 85 (citations omitted). In order to justify a departure the abuse must have risen "to the extraordinary level that can be assumed to cause mental or emotional pathology." Rivera, 192 F.3d at 86. InRivera, the Second Circuit observed that "the cases at the extreme are easy to classify," but left further development of the standard as to when this extraordinary level is reached to future cases. Id. at 85-86 (citing Roe, 976 F.2d at 1218, as example of case at the extreme).
Although the abuse suffered by Ramirez may not render this case one of those that are "easy" to categorize, the Court concludes that the abuse was so extreme that it can be assumed to have caused Ramirez to suffer mental or emotional pathology contributing to his commission of the offense. See Rivera, 192 F.3d at 86. The Court observes that the abuse was more severe than that suffered by the defendant in Rivera, which the Second Circuit stated would not have been sufficient to warrant a downward departure, see id.. The Court also notes that abuse can be of both a physical and a psychological nature, see United States v. Ayers, 971 F. Supp. 1197, 1200 (N.D. Ill. 1997), and that Ramirez was the victim of both. A downward departure is warranted here.
The Sentence
Pursuant to 18 U.S.C. § 841 (b)(1)(A) and the Guidelines will be sentenced to a term of 120 months imprisonment, to be followed by a five year term of supervised release. As conditions of his supervised release, Ramirez shall, for the term of such release: (1) abide by the thirteen standard conditions of supervised release set out in Guidelines § 5B1.4 (a)(1) — (13); (2) not commit another federal, state, or local crime; (3) not illegally possess a controlled substance; (4) not possess a firearm or destructive device. The mandatory drug condition is suspended due to imposition of the following special condition requiring drug treatment and testing.
Ramirez shall be required to comply with the following special conditions during his supervised release: (1) participate in a program approved by the United States Probation Office for substance abuse, which program may include testing to determine whether the offender has reverted to the use of drugs or alcohol. Ramirez 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; (2) if deemed necessary by the Probation Officer, participate in a mental health treatment program approved by the United States Probation Department. Ramirez 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. Ramirez is to report to the nearest probation office within 72 hours of release from custody. Supervision shall be by the district of Ramirez's residency.
This sentence is subject to further hearing on June 5, 2000.
It is so ordered.
New York, N.Y.