IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA



ATLANTA DIVISION







UNITED STATES OF AMERICA )

) CRIMINAL ACTION

v. ) ) NO. xxxxxxxxxxxx

JOHN DOE )

_____________________________)





SENTENCING MEMORANDUM AND MOTION FOR DOWNWARD DEPARTURE



NOW COMES the defendant, JOHN DOE, by and through undersigned counsel, and submits this Sentencing Memorandum and Motion for Downward Departure pursuant to U.S.S.G. §5K2.0 to assist the Court in deciding the appropriate sentence in this matter.

A. Factual Background

Mr. Doe is 48 years old. He is has maintained a common-law relationship with V W for the past 12 years. He and Ms.W adopted a daughter in 1987 and now have a grandchild with medical problems. (1) His mother and father who are in their late 60s, live in Tennessee, and his mother suffers from chronic heart problems. (2)

In January of 1995, Mr. Doe was convicted of possession with intent to distribute cocaine in Chambers County, Texas. (hereinafter referred to as the "Texas Conviction"). The Texas conviction is part of the offense conduct before the Court in the instant case. Mr. Doe was taken into custody at the time of the conviction in Texas, and began serving a 99 year sentence. Mr. Doe's first parole eligibility date is February 18, 2001. Prior to coming into federal custody on a writ issued by Assistant United States Attorney, Janis Gordon, Mr. Doe was assigned to L. C. Towledge, a Texas Correctional Institution. He was brought to Atlanta on a writ on March 24, 1997.

Mr. Doe played a minor role in the drug operation of Sam Carroll. (See paragraphs 36 and 37 of the Presentence Investigation Report, hereinafter referred to as PSI). His primary role was that of a courier acting under the direction of Sam Carroll. In June of 1997, Mr. Doe entered a plea of guilty to Count 1, conspiracy to distribute cocaine, in violation of 21 U.S.C. §846. The plea of guilty was pursuant to a plea agreement with the Government, whereby Mr. Doe agreed to cooperate with the Government. Specifically, Mr. Doe was debriefed approximately 10 times regarding his knowledge of the criminal activities of Alvin Kendall. Mr. Doe testified before the grand jury, and also at the trial. Alvin Kendall was convicted of conspiracy and sentenced to a term of 60 months imprisonment.

Since March of 1997, Mr. Doe has been in pre-trial detention. He was first confined at the Atlanta Penitentiary. Then, in February of 1998, Mr. Doe was transferred to the Atlanta Pre-trial Detention facility. Conditions in both facilities are markedly different from the conditions in the Texas Department of Corrections. Because the conditions in both Atlanta pre-trial detention facilities are unusually harsh, and because the Sentencing Commission did not consider the unusually harsh conditions or the unusually long (nearly 22 months) pre-trial detention, Mr. Doe respectfully requests this Honorable Court to downwardly depart from the guideline range contained in the PSI.

B. The Change in Departure Jurisprudence Since Koon v. United States

Departures in criminal sentencing hearings have been the subject of much discussion and litigation. Mr. Doe will first analyze the general framework of departures under the Sentencing Guidelines, followed by an overview of departures after the landmark case of Koon v. United States, and will outline the basis for his downward departure motion beginning on page 7.

1) Departures under the Guidelines

This court has authority to depart in any case not falling within the "`heartland,' a set of typical cases embodying the conduct that each guideline describes" which were "carved out" by the Sentencing Commission. U.S.S.G. Introduction, p. 5, Ch. 1, Pt. A, § 4(b). "When the court finds an atypical case ... the court may consider whether a departure is authorized ... the Commission does not intend to limit the kinds of factors, whether or not mentioned elsewhere in the guidelines, that could constitute grounds for departure in the unusual case." Id., at 5-6.

Both Congress and the Sentencing Commission agreed that there would be times when various factors about a defendant would make a particular sentence inappropriate. Therefore, both Congress and the Sentencing Commission set out which factors, if substantially different in a case than in the normal or "heartland" case, should be considered as bases for a downward departure from the usually appropriate Guideline range. U.S.S.G. Introduction, p. 5, Ch. 1, Pt. A, § 4(b) and 18 U.S.C. § 3553(b). The Guidelines provide:

The sentencing statute permits a court to depart from a guideline-specified sentence . . . when it finds "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described."U.S.S.G. § 1A4(b), quoting 18 U.S.C. § 3553. See United States v. Ponder, 963 F.2d 1506, 1509-10 (11th Cir. 1992) (Eleventh Circuit supported a departure "even if the circumstances presented by the case vary only in degree from that presented by the guideline.").

2) The Koon Decision

The United States Supreme Court addressed the issue of guideline departures, in Koon v. United States, 116 S. Ct. 2035 (1996). The Supreme Court's Koon decision clarified and reemphasized that sentencing courts still have broad discretion to tailor appropriate sentences to the facts of a case.

Reversing a Ninth Circuit decision which had struck down the downward departures in Koon, the Supreme Court unanimously clarified that, from now on, departures should be reviewed on appeal only for abuse of discretion. Id. at 2043. (3) This ruling represented a significant change in the law of most Circuits, including this one. Prior to Koon, almost every Circuit had held that district court decisions about whether a factor could be used as a valid legal basis for departure must be reviewed de novo.

In Koon, the Supreme Court went out of its way to stress that its decision was designed to promote a view of the Sentencing Reform Act that retains much of the traditional sentencing discretion of district judges. While acknowledging the Sentencing Guidelines' goal of uniformity, Justice Kennedy explained:

This too must be remembered, however. It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue. We do not understand it to have been the congressional purpose to withdraw all sentencing discretion from the United States District Judge. Discretion is reserved within the Sentencing Guidelines, and reflected by the standard of appellate review we adopt.

116 S. Ct. at 2053. Accord id. at 2046 ("the text of § 3742 manifests an intent that district courts retain much of their traditional sentencing discretion"). In fact, the Supreme Court stated that, unless the Commission itself had "proscribed, as a categorical matter, consideration of the factor," courts should not reject any factor as a possible ground for downward departure; rather, "the sentencing court must determine whether the factor, as occurring in the particular circumstances, takes the case outside the heartland of the applicable Guideline." Id. at 2051.

In evaluating this "heartland, the Supreme Court cited the Guidelines' own acknowledgment that "the Commission did not adequately take into account cases that are, for one reason or another, unusual." Id. at 2044 (quoting U.S.S.G. ch. 1, pt. A, Intro. Comment 4(b)) (emphasis added). The Court described the expected process as follows: "A district judge now must impose on a defendant a sentence falling within the range of the applicable Guideline if the case is an ordinary one." Id. at 2044. The focus thus should be on whether the facts of a case are "unusual"--or not "ordinary"--with a sentencing court still largely free to tailor an appropriate sentence through departure if the answer is yes. See, e.g., id. at 2047 ("The relevant question is not, as the Government says, whether a particular factor is within the 'heartland' as a general proposition ... but whether the particular factor is within the heartland given all the facts of the case."):

The [Sentencing Reform] Act did not eliminate all of the district court's discretion, however. Acknowledging the wisdom, even the necessity, of sentencing procedures that take into account individual circumstances, 28 U.S.C. § 991(b)(1)(B), Congress allows district courts to depart from the applicable guideline range if "the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described."

116 S. Ct. at 2044 (quoting 18 U.S.C. § 3553(b)). See also id. at 2051 ("The Guidelines ... 'place essentially no limit on the number of potential factors that may warrant departure.'").

In Koon, the majority even upheld, as a valid basis for a downward departure under the facts of that case, the defendants' susceptibility to abuse in prison--a "discouraged factor" that the Commission had stated should not ordinarily be used as a basis for a downward departure. Id. at 2053; see also id. at 2055 (Souter, J., concurring in part and dissenting in part) (criticizing use of this "discouraged factor" as basis for downward departure). The Supreme Court also approved of departures based on an aggregation of factors, even if none of those factors, when considered alone, provided a sufficient basis to support a downward departure. See id. at 2053-54 (remanding for possible reimposition of downward departure despite recognition that district court had found none of the factors individually worthy of departure); see also id. at 2054 (Stevens, J., concurring) (clarifying this understanding).

3) Decisions Since Koon

In the time since Koon was handed down, courts throughout the country seem to be recognizing that a new day has dawned for departures under the Sentencing Guidelines. This Court should now recognize that a downward departure is more likely to withstand scrutiny, so long as it is factually based.

The Eleventh Circuit approved a downward departure after Koon in United States v. Bernal, 90 F.3d 465 (11th Cir. 1996). In rejecting a government appeal in that case, the Eleventh Circuit recognized that Koon mandates a different role for appellate courts when a sentencing judge departs downward on recognized grounds.

The Supreme Court also seems to be emphasizing the message that previous departure jurisprudence may no longer be good law. In Meza v. United States, 117 S. Ct. 478 (1996) the Court granted certiorari and remanded a case back to the Seventh Circuit in light of Koon. The Supreme Court told the appellate court to reconsider its previous rule that departures cannot be based on disparities among the sentences for co-conspirators. Interestingly, all circuits had followed the same practice of not allowing departures for co-conspirators because of perceived disparities. By remanding, the Supreme Court seems to be telling all the various courts of appeals to re-think all previous cases which may have branded certain grounds as inappropriate bases for departure.

C. Specific Grounds for Downward Departure in Mr. Doe's Case

Consistent with Koon, the catch-all provision in U.S.S.G. § 5K2.0 authorizes this Court generally to depart downward on grounds not specifically mentioned in the Guidelines, any time there exists a mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission. U.S.S.G. § 5K2.0 ("Circumstances that may warrant departure from the guidelines pursuant to this provision cannot, by their very nature, be comprehensively listed and analyzed in advance").

As noted above, Mr. Doe has been held in pre-trial detention for 22 months. Conditions in pre-trial detention are markedly different from the conditions that Mr. Doe endured in Texas and different from the conditions that he would face in federal custody while serving his sentence. For instance, the Atlanta Penitentiary was "lock-down" status the entire time Mr. Doe was housed there. While the institution is in lock-down, inmates are confined to their cells 23 ½ hours a day. The pre-trial inmates are allowed to shower 3 times per week, but only during the half hour that they are allowed out of their cells, and not on the weekends. The pre-trial inmates have their food brought to them, instead of traveling to the mess hall, and this results in cold meals. Mr. Doe experienced a rodent infestation problem in his cell block, as well as temperature regulation problems. During one 30 day period, the pre-trial inmates were given "bag" lunches and were unable to take any showers. Each cell, which was designed to house one inmate is double bunked, and occasionally a third inmate was placed on the floor. There is no significant recreation time. Additionally, there are no windows in the unit that Mr. Doe was housed in, so he was unable even to see the outside world.

In February of 1998, Mr. Doe was transferred to the Atlanta Pre-Trial Detention Center. This facility is located in downtown Atlanta, and has no outside recreation area. Inmates are housed in "pods." A pod is open area which is surrounded by individual cells. There are approximately 30 inmates in each pod. The cells are generally double bunked, and Mr. Doe's cell is no exception. The open area consists of a concrete floor with 3 tables with 4 stools attached to each table. There is also a pay phone, television, and a shower area. One shower suffices for all 30 of the inmates in the pod, and it is grimy with mildew. Inmates are allowed 4 hours a week for recreation and library time, the remaining time is spent in their cells or the open area of the pod. Recreation takes place in a large room that is equipped with a volley ball net. The vents in many areas of the facility are caked with grime. The food served at the Atlanta Pre-Trial Detention Center is universally considered bad and frequently is served cold. Sheets are changed one time per month (or every 6 weeks) and clean uniforms are distributed at the same time. (4) There are no chapel facilities. Visitation takes place behind glass. Undersigned counsel has personally observed roaches crawling on the floor in attorney visitation area, which has a ceiling that is damaged by water to the point where there are holes in it.

In contrast, while Mr. Doe was serving his time in the Texas Department of Corrections, he was a commissary clerk/typist who worked a 7-8 hour shift. He was able to eat in a mess hall which served hot food. He was able to shower in a clean facility every day and was provided with clean clothes every day. He was able to take outside recreation, or play basketball in a gym. There was an on site chaplain and a chapel at the facility. The Texas institution had a music room as well as educational programs and a decent library. The commissary was much larger than that in Atlanta and medical treatment was also much better.

Additionally, Mr. Doe should be at a security level which would qualify him for a federal prison camp. Had Mr. Doe been at a federal prison camp, he would typically be housed in a dorm setting. He would be able to eat hot food at a mess hall. Federal prison camp inmates are allowed to work, have recreation time outside, have on site chapels for worship services, libraries, music available, educational programs, and in some facilities, hobby craft. (5)

In Koon, the Court pointed out that there are four types of departure factors: 1) those forbidden by the Sentencing Commission, 2) those encouraged by the Sentencing Commission, 3) those discouraged by the Sentencing Commission, and 4) those not considered by the commission. Id. Each type of departure factor should be treated differently by the district court.

If the special factor is a forbidden factor, the sentencing court cannot use it as a basis for departure. If the special factor is an encouraged factor, the court is authorized to depart if the applicable guideline does not already take it into account. If the special factor is a discouraged factor, or an encouraged factor already taken into account by the applicable guideline, the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present. If a factor is unmentioned in the Guidelines, the court must, after considering the "structure and theory of both the relevant individual guidelines and the Guidelines taken as a whole," decide whether it is sufficient to take the case out of the Guidelines heartland.

Koon, 116 S.Ct. at 2045. Unusually harsh and prolonged pre-trial custody conditions is a circumstance which is not mentioned in the Sentencing Guidelines. Thus, this Court must decide whether the pre-trial custody that Mr. Doe has experienced is sufficient to take his case out of the Guidelines heartland.

In Koon, the Supreme Court specifically authorized a downward departure on grounds involving prison conditions. In Koon, the district court granted a downward departure to police officers involved in the Rodney King case because they would be vulnerable to abuse in prison. The Supreme Court affirmed this downward departure writing that "the district court's conclusion that this factor made this case unusual is just the sort of determination that must be accorded deference by appellate courts." Koon, 116 S.Ct. at 2053. Although this departure in Koon was based on the difficult prison conditions which faced the defendants on their arrival in prison, it stands for the proposition that harsh conditions of confinement justify a downward departure. Mr. Doe has already been housed under harsh conditions. In Koon, the harsh conditions were purely speculative. Thus, if the speculative harsh prison conditions authorized a departure in Koon, then the actual harsh conditions through which Mr. Doe has suffered should also authorize a downward departure.

The Second Circuit also has affirmed a downward departure involving prison conditions. See United States v. Gonzalez, 945 F.2d 525 (2nd Cir. 1991). In so doing, the court specifically rejected the Government's argument that "prison conditions are not an appropriate basis for downward departure." Gonzalez, 945 F.2d at 527. That case, like Koon, involved a defendant who would be particularly vulnerable to abuse in prison.

Additionally, in United States v. Farouil, 124 F.2d 838, 847, (7th Cir. 1997), the Seventh Circuit authorized downward departure in the case of a defendant who was a deportable alien who was convicted of heroin trafficking. In that case, the Seventh Circuit held, "[t]he district court is thus free to consider whether Farouil's status as a deportable alien has resulted in unusual or exceptional hardship in his conditions of confinement." Consequently, the Seventh Circuit vacated the sentence and remanded the case so that the district court could decide whether the conditions suffered by a deportable alien in custody were sufficiently harsh to justify a downward departure in the case. See also, United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994)(downward departure may be appropriate where defendant's status as deportable alien is likely to cause fortuitous increase in severity of his confinement).

These cases plainly authorize a district court to downwardly depart based on conditions of confinement. In the instant case, Mr. Doe has suffered harsher conditions of pre-trial detention for an unusually prolonged period than he would in Texas or in a federal facility. Consequently, Mr. Doe respectfully requests this Court to downwardly depart from the guideline range recommended in the PSI.

Dated: This ___ day of January, 1999.

Respectfully submitted,







______________________________

LYNN G. FANT

GEORGIA STATE BAR NO. 254963

ATTORNEY FOR JOHN DOE



Federal Defender Program, Inc.

Suite 3512, 101 Marietta Tower

Atlanta, Georgia 30303

404/688-7530



CERTIFICATE OF SERVICE



This is to certify that I have this day served a copy of the foregoing Sentencing Memorandum and Motion for Downward Departure upon:

Janis Gordon, Esq.

Assistant United States Attorney

1800 Richard B. Russell Building

75 Spring Street, S. W.

Atlanta, Georgia 30335



by hand delivering a copy of the same.



Dated: This ___ day of January, 1999.







______________________________

LYNN G. FANT

























































X:\APPS\MOTIONS\ALASKA\Sentenc\5K2.WPD

1. Mr. Doe's grandchild is 8 years old. He has been diagnosed autism. He cannot speak, dress himself, or bath himself. He was very close to Mr. Doen and responds more to him than to other individuals.

2. The elder Mr. and Mrs. Doe rely on John Doe for financial advice and have had a hardship helping him financially, so that Virginia would not lose the house.

3. While there were some concurring opinions in Koon, all of the Justices joined in the portions of the opinion discussed here, concerning the appropriate standard of review and the need for sentencing judges to retain substantial departure discretion.

4. Since Christmas, the new policy is to issue uniforms and clean bed linen every 2 weeks.

5. The above conditions are also available at Federal Correctional Institutions.