Opinion
DOCKET NO. 98-CR-83E
August 14, 2000
ATTORNEYS FOR THE DEFENDANT: Pro Se.
ATTORNEYS FOR THE USA: Joseph J. Karaszewski, Esq., Asst. United States Attorney.
MEMORANDUM and ORDER
The abovenamed individual ("the defendant") was named in a twenty-count Indictment for, in COUNT I, having conspired with five other named individuals to defraud individuals through the mechanism of interstate telephone conversations in which each of the telephoned individuals was enticed to send money to the caller as a prerequisite to his or her receiving an item of value which he or she had won when, in fact, no such valuable item had been won and the telephoned individual, after making the requested payment, received an item of far less value. Nineteen additional counts particularized payments to the co-conspirators.
Pursuant to a March 22, 1999 Plea Agreement, the defendant pled guilty to COUNT I with the understanding that the remaining counts would be dismissed and that the undersigned would impose a sentence of imprisonment of 24 months and a specialized provision that, of the prescribed imprisonment exceeded 24 months, the defendant could withdraw his plea of guilty. After listening to the defendant and to his attorney and the prosecutor and having examined the Presentence Investigation Report, I sentenced the defendant to 27 months imprisonment and three years of Supervised Release, with a Special Assessment of $50, a fine of $5,000 and the obligation to make restitution to defrauded individuals in the aggregate amount of $18,060.49.
The Plea Agreement, executed by the defendant and his attorney and the prosecutor on March 22, 1999, set forth that it was agreed that the "adjusted offense level" for that to which the defendant was to — and did — plead guilty was 13 and that such would be reduced to 11 according to the prosecutor's recommendation. It was further set forth that the parties' "understanding" was that the defendant's criminal history category was V. Pursuant thereto and without giving effect to any other considerations, it was the written understanding of the parties that the defendant could be put in prison for a minimum of 24 months and a maximum of 30, in addition to a term of supervised release, a special assessment of $50, a fine of not more than $30,000 and the obligation to make monetary restitution to those whom the defendant and his confederates had defrauded. Paragraph 13 of the Plea Agreement states:
"Notwithstanding the above calculations, it is the agreement of the parties pursuant to Rule 11(e)(1)(c) of the Federal Rules of Criminal Procedure that the Court at the time of sentence impose a twenty four [sic] (24) month term of imprisonment as the appropriate disposition of the case. If, after reviewing the presentence report, the Court rejects the agreement, then the defendant shall be afforded the opportunity to withdraw the plea of guilty." [Emphasis supplied.]
Paragraph 16 of the Plea Agreement says:
"The defendant understands that Title 18, United States Code, Section 3742 affords a defendant a limited right to appeal the sentence imposed. The defendant, however, knowingly waives his right to appeal or collaterally attack a sentence of 24 months imposed by the Court, not withstanding the fact that the Court may reach that range by a Guidelines analysis different from that set forth in the agreement." [Emphasis supplied.]
The defendant has now moved for a downward departure pursuant to 18 U.S.C. § 3742 — and 18 U.S.C. § 3553(b) and 28 U.S.C. § 991(b).
Section 3742 is inapplicable here inasmuch as it concerns appeals from a district court rather than to such court. Similarly, 28 U.S.C. § 991(b) has no relevance here inasmuch as it only outlines the purposes of the United States Sentencing Commission which is established in and by 28 U.S.C. § 991(a).
18 U.S.C. § 3553(b) had relevancy in that it concerns the imposition of sentence. Such occurred on December 17, 1999 on the basis of a Presentence Investigation Report dated April 28, 1999 — and with Mr. Slocombe present with his capable assigned attorney Nelson S. Torre, Esq. There was no stated disagreement with the Report and the undersigned, after listening to statements by Mr. Torre and by Mr. Slocombe imposed the abovenoted sentence
What Mr. Slocombe now presents as the basis for a reduced sentence is his personal statement that has rehabilitated himself and had done so prior to the imposition of sentence — by having steered his life away from illicit drugs and having participated in church activities on occasions. All of such is eminently laudable and the undersigned hopes sincerely that such will be the controlling index of his future life.
The undersigned fully considered all that was before him when he imposed this sentence. What was not then before him and cannot now affect retroactively the imposed sentence is what is held forth as the "new Mr. Slocombe." Sentence was imposed as a punishment for the "old Mr. Slocombe" and had to be carried through as punishment for what the old Mr. Slocombe had done and as an example to him and to all others of what hurt is incurred by one who criminally trespasses upon others' rights — and as an incentive to the old Mr. Slocombe to become the new Mr. Slocombe.
That said, defendant Slocombe motion for a reduced sentence is DENIED.