IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
: Cr. No. xx-144 (JGP) :
v. : :
:
xxxxxxxxxxxxxxx, :
:
:
Defendant. :
MEMORANDUM IN AID OF SENTENCING
Defendant xxxxxxxxxx, through undersigned counsel, respectfully submits this Memorandum in aid of his sentencing which is scheduled for March 6, 1998.
1. On March 27, 1997, Mr. xxxxxxxxx was arrested in Waterbury, Connecticut on a warrant issued by the United States District Court for the District of Columbia following Mr. xxxxxxxxx' May 1996 indictment by a federal grand jury on charges of money laundering and filing fraudulent currency transaction reports.
2. Following removal proceedings in Connecticut, Mr. xxxxxxxxx was arraigned in this jurisdiction on April 17, 1997. On November 25, 1997, pursuant to a written plea agreement, Mr. xxxxxxxxx entered a plea of guilty to money laundering.(1)
3. Pursuant to the United States Sentencing Guidelines (U.S.S.G.), the guideline range applicable to the offense of money laundering is 46 to 57 months. See, Presentence Report (PSR), page 17, paragraph 91. Mr. xxxxxxxxx is requesting that the court depart downward from that guideline range on two grounds, that he has made extraordinary efforts at rehabilitation since the offense conduct which gave rise to this prosecution and that he is a deportable alien whose conditions of confinement will be more harsh than other prisoners who are not deportable aliens.
ARGUMENT
Post-Offense Rehabilitation
In United States v. Harrington, 947 F.2d 956, 962 (D. C. Cir. 1991), this circuit determined that post-offense rehabilitation could justify a departure under U.S.S.G. § 3E1.1 as conduct demonstrating acceptance of responsibility. The court left open the question whether a more extensive departure than permitted by that section could be warranted "if the rehabilitation `is so extraordinary as to suggest its presence to a degree not adequately taken into consideration by the acceptance of responsibility reduction.'" Id (citation omitted).
After Harrington was decided, the Supreme Court decided Koon v. United States, 116 S.Ct. 2035 (1966). In Koon, the Court established a framework for determining whether a particular factor can be the basis for a downward departure:
We conclude, then, that a federal court's examination
of whether a factor can ever be an appropriate basis
for departure is limited to determining whether the
Commission has proscribed, as a categorical matter,
consideration. If the answer to the question is no
-- as it will be most of the time -- the sentencing
court must determine whether the factor, as occurring
in the particular circumstances, takes the case
outside the heartland of the applicable Guideline.
116 S.Ct. At 2051.
After Koon, several courts have held that post-offense rehabilitation can be the basis for a downward departure, separate from the adjustment provided for acceptance of responsibility, where circumstances exist which take the case outside the heartland of cases where acceptance of responsibility is usually granted. In United States v. Kapitzke, 130 F.2d 820, 823-24 (8th Cir. 1997), the court held that where the defendant's post-rehabilitation efforts were exceptional enough to be atypical of cases in which an acceptance of responsiblity reduction was usually granted, the departure was warranted. Because the defendant in Kapitzke had enrolled in drug treatment and sex therapy programs and had successfully completed both, the reviewing court upheld the departure. Likewise, in United States v. Core, 125 F.3d 74 (2nd Cir. 1997), the court held that " . . . if the defendant achieved a rehabilitation sufficiently impressive to be considered `atypical' and to take his case out of the heartland, we see no reason why this should not be considered . . . a basis for departure." 125 F.3d. 77 (citations omitted). The court in Core specifically addressed the interplay between a downward departure on the ground of post-offense rehabilitation and the two-level reduction in offense level for acceptance of responsibility and concluded that:
We see no indication that the Commission intended
its mention of post-offense rehabilitation as one
factor affecting acceptance of responsibility to
preclude consideration of rehabilitation as a
basis for departure. Acceptance of responsibility
is easily achieved and is accordingly of relative
low value. Credit for acceptance of responsibility
can be earned by any offender who admits the offense,
pleads guilty, and is found not to have persisted in
criminal conduct. . . . Defendants who accomplish
a successful rehabilitation go far beyond what is
required to qualify for the deduction under §3E1.1.
Id.
Similar reasoning was employed in United States v. Sally,
116 F.3d 76 (3d Cir. 1997). In that case, the district court had determined that it lacked authority to depart on the basis of several factors set forth by the defense, including the defendant's post-offense rehabilitative efforts. The circuit court remanded, holding that post-offense rehabilitative efforts could constitute a sufficient basis for a downward departure, provided that the efforts were so exceptional as to remove the particular case from the heartland in which the acceptance of responsibility guideline was intended to apply. 116 F.3d at 80. See also, United States v. Brock, 108 F.3d 31 (4th Cir. 1997) (holding that after Koon, post-offense rehabilitation efforts could provide a ground for departure when they were so exceptional as to be atypical of those cases in which an adjustment for acceptance of responsibility is granted); United States v. Dyce, 975 F. Supp. 17 (D.D.C. 1997); United States v. McBroom, 1998 WL 15833 (D.N.J. 1/13/98).
Mr. xxxxxxxxx qualifies for the downward departure because his efforts at rehabilitation are so exceptional as to make them atypical of the heartland case where a reduction in offense level is granted for acceptance of responsibility. The offense conduct in this case occurred in July and August of 1993. Since that time, Mr. xxxxxxxxx has not been re-arrested for any criminal conduct. He has worked steadily, and at the time of his arrest in this case, was working two jobs. Reports from both employers revealed that he was an exceptional worker. His supervisor at Premier Maintenance reported that Mr. xxxxxxxxx was the best worker he had had, that he had never missed a day of work, that he was well-liked by all his co-workers, that he would be welcome back at that job at any time.(2) His supervisor at Carta Maintenance described him as very responsible and trustworthy.(3) To the PSR writer, Mr. xxxxxxxxx was described by Carta Maintenance as "a very good and responsible employee who took directions well." Page 16, paragraph 76.
Mr. xxxxxxxxx was living in Waterbury, Connecticut at the time of his arrest in this case. He was in a stable relationship with Diana Hernandez, his fiancee, who also resided in Waterbury. Ms. Hernandez submitted a letter to the PSR writer which is attached to the report. In her letter she reported that Mr. xxxxxxxxx was quick to help other people, including helping his roommates in Waterbury learn English. Ms. Hernandez is gainfully employed in Waterbury (PSR page 14, paragraph 65), and when Mr. xxxxxxxxx is able to do so, he intends to return to Waterbury to reside.
Mr. xxxxxxxxx was living a law-abiding life in Waterbury. He was working legally, having had an alien registration card for many years. He had a drivers license and a passport. He paid income taxes and his earnings were reported to the social security administration. He had never been arrested there until he called the Waterbury Police to report that someone had stolen the license tag from his car and the police learned that there was an outstanding warrant from the District of Columbia for his arrest. As the court knows, Mr. xxxxxxxxx was on release in another matter pending before this court when he moved to Connecticut. However, he was convicted in that case in 1989, and his attorney filed a Motion for New Trial on his behalf, which was pending when he left for Connecticut in 1994, over five years after the jury verdict. His relocation to Connecticut was occasioned by the illness of his brother and business partner, who returned to Brazil, the bankruptcy of the business, and the break-up of his marriage. When he left for Connecticut, he did not know that he would be prosecuted in this case.(4)
When Mr. xxxxxxxxx relocated to Connecticut, he did so entirely openly, without any intention to conceal his identity or location. He had a drivers license in his name, he registered his car in his own name, and both documents reflected his correct address in Waterbury.(5) After he left Washington in November, 1994, he had a number of minor traffic infractions in his own name, and he was never told of any outstanding warrant. He worked under his own name and social security number. He rented his apartment under his own name. The purpose of the relocation was to leave behind the problems of a failed business and a failed marriage, not to avoid his responsibilities to this court in the 1989 matter.
When Mr. xxxxxxxxx relocated to Connecticut in November, 1994, he had not been charged or indicted in this case. After the offense conduct in 1993, the government executed a search warrant at his place of business on June 1, 1994, but the only relevant material which was seized were records related to the August, 1993 transaction and approximately $4,000 in currency. On June 30, 1994, Mr. xxxxxxxxx met with the agents who had conducted the search and was told that he was not under arrest and that he was free to leave at any time. During that meeting, the agents returned to him all the money which had been seized during the search.(6) After that meeting, he had no further contact with law enforcement concerning the money sent to Brazil until his arrest in March of 1997.
As the PSR reflects, Mr. xxxxxxxxx' relocation to Connecticut resulted in an estrangement with his family. However, since his return to the District of Columbia, he has reunited with his family and they visit him regularly. His family will be present at court at the time of sentencing in this case. A letter from his brother, Mauricio xxxxxxxxx, is attached to this Memorandum as Exhibit A. That letter makes clear that Mr. xxxxxxxxx enjoys the support of a close and loving family.
Mr. xxxxxxxxx' conduct since his incarceration in this case demonstrates that he has also availed himself of every rehabilitative opportunity. He has worked steadily, either in the kitchen at the D. C. Jail or on a maintenance detail. Attached to this Memorandum as Exhibit B is a letter from his supervisor, who reports that he is an excellent worker. He has taken whatever classes were available to him at the detention facility (see attached Exhibit C). He has helped other inmates, particularly Spanish speaking inmates, with their literacy classes. He handles correspondence for inmates who cannot read and write, or who are not literate in English. He has never had a disciplinary infraction in the eleven months he has been incarcerated.
All of these factors combine to assure the court that Mr. xxxxxxxxx has been rehabilitated and that he has done far more in that regard than the "heartland" situation for acceptance of responsibility demands. Because his efforts at rehabilitation are extraordinary, this court should depart downward and fashion a sentence which allows Mr. xxxxxxxxx to continue on the course he has already undertaken.
Mr. xxxxxxxxx' Status as a Deportable Alien
This circuit, in United States v.Smith, 27 F.3d 649 (D.C. Cir. 1994), held that a downward departure may be appropriate when the defendant's status as a deportable alien is likely to cause an increase in the severity of his sentence. 27 F.3d at 655. In Smith, the court noted two ways in which a deportable alien might be disadvantaged: ineligibility for halfway house release when his sentence was substantially served, and ineligibility for confinement in a minimum security facility. Id., at 651. Because it seems likely that Mr. xxxxxxxxx will suffer both disadvantages, in light of the fact that the Immigration and Naturalization Service has filed a detainer seeking his deportation at the conclusion of this case (PSR, p. 1), a departure under Smith is warranted.
CONCLUSION
For these and any other reasons that may appear to the court at the sentencing hearing on March 6, 1998, it is respectfully requested that the court depart downward on the grounds set forth above.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
________________________
Reita Pendry
Assistant Federal Defender
625 Indiana Avenue, N.W. #550
Washington, D. C. 20004
(202)208-7500
CERTIFICATE OF SERVICE
I certify that I have served a copy of the foregoing Memorandum in Aid of Sentencing upon Elisa Poteat, Esq., Assistant U. S. Attorney, by mailing a copy to her at her offices at 555 4th Street, N.W., Washington, D. C., and by hand-delivering a copy to a receptacle provided by her office for service of pleadings at the United States District Court, and upon Susanna Seto Pike, U. S. Probation Officer, by hand-delivering a copy to her office at the United States District Court, 333 Constitution Avenue, N.W., Washington, D. C. 20001, this 27th day of February, 1998.
_______________________
Reita Pendry
1. The delay between the arraignment and the entry of the guilty plea was due in large measure to the substitution of counsel and prior counsel's delay in getting discovery materials to Mr. xxxxxxxxx for his review.
2. Mr. Hyatt was contacted by counsel for Mr. xxxxxxxxx in April of 1997 in preparation for a detention hearing and these comments were conveyed to counsel at that time.
3. The supervisor was interviewed by counsel for Mr. xxxxxxxxx in April, 1997 in preparation for a detention hearing, and these comments were conveyed during that interview.
4. Interview with United States Customs agent James Davis in Connecticut following Mr. xxxxxxxxx' arrest in November, 1997.
5. Id.
6. See Report of Investigation, Drug Enforcement Administration, July 11, 1994.