United States District Court, Eastern District of New York
November 19, 1990
UNITED STATES OF AMERICA, PLAINTIFF,
NADINE JENNIFER HANDY, DEFENDANT.
The opinion of the court was delivered by: Glasser, District Judge:
MEMORANDUM AND ORDER
Prior to proceeding with the pronouncement of sentence upon
this defendant, the government was advised of the court's
intention to depart downwardly from the guidelines and
announced its readiness to proceed with sentence.
I began with summarizing the facts upon which my sentence
determination will be based.
Ms. Handy pleaded guilty to a single count indictment
charging her with conspiring with William Johnson to distribute
and possess with intent to distribute cocaine. The events
leading up to her arrest describe a reverse buy — that is to
say — the defendants were not selling cocaine to an undercover
officer or to a confidential informant, but were negotiating to
buy cocaine for a stated price. The money with which to
consummate the purchase was in a handbag on the floor near Ms.
Handy and totaled $75,000. Also in her handbag were a diluent
used to "cut" cocaine and glassine envelopes.
Johnson was, for the preceding five years, Handy's boyfriend.
On the day prior to her arrest, he requested her to accompany
him to New York City to buy narcotics. She agreed to accompany
him and to carry the purchase money. She denied ever having
done so before. She admitted to knowing for at least two years
of Johnson's involvement in illegal activity based upon the
inconsistency between his lifestyle and his earnings as a meat
cutter and she suspected that the illegal activity was drug
The facts which identify this defendant as Nadine Handy, a
person, rather than an objective manifestation of discrete
criteria to which are assigned numbers which, when added
together yield a sentencing result, are as follows:
She was born in Baltimore, Maryland, thirty-six years ago.
She was one of ten children whose father died when she was
three and whose mother died at the age of forty when the
defendant was fifteen years old. She is the mother of three
out-of-wedlock children. She gave birth to her first child when
she was seventeen and still in high school. He is now nineteen
years old and is a strong candidate for a basketball
scholarship to college with aspirations of playing professional
She gave birth to her second child, a daughter, two years
later and left high school. This child is now sixteen, is
enrolled in the "gifted and talented" class in her local high
school and is the likely recipient of a $1,000 annual college
She gave birth to her second daughter who is now eight years
old and in the third grade. All the children live with her. She
has no prior criminal record.
Ms. Handy has been gainfully employed for the past thirteen
years. For the past eight years she has been employed by the
same firm, Farm Fresh Food, Inc. in Baltimore to which she
returned to resume her work when released on bail. She has
borne the sole responsibility for rearing her three children
and supporting them without public assistance. She also
undertook to care for the two children of her boyfriend,
Johnson, when they came to Baltimore from California. Letters
written on behalf of Ms. Handy describe her selflessness in
that regard and the positive influence she has had on their
The picture of Ms. Handy portrayed by the salient facts I
summarized and by the many letters on her behalf, is of a young
woman born into and reared in poverty in an urban environment
which is a socio-economic minefield through which she threaded
her way and emerged unscathed, relatively speaking. That is to
say, she abjured the suffocating effects of the world of
welfare for the independence and dignity-reinforcing world of
work and has been steadily and gainfully employed for thirteen
years. She has single-handedly and successfully guided three
children through the socio-economic minefield of a not
atypically treacherous urban environment. Letters addressed to
the court attest to the high regard in which she is held at
work and in her community. What then brings her before the
court? The explanation which is all but inescapable is that
this single parent fell in love with the co-defendant, William
Johnson and despite her many other strengths did not have the
strength to say "no" to him. The story is as old as the story
of civilization — he offered her an apple and she did eat.
That the government did not view her as a sophisticated,
knowledgeable drug dealer is indicated by its stipulation at
the time of her plea not to oppose a four point guideline
reduction for her minimal role in the offense. There is no
indication that the defendant was drawn to trafficking in drugs
by the lure of the huge sums of money incident to such traffic.
Were that the case it would be reasonable to assume that she
would not persist in working as a meat wrapper at an average
salary of approximately $250 per week.
Is a downward modification appropriate and justified by the
statutes and the guidelines promulgated pursuant thereto? I
believe it is. I believe that the conclusion I reach is one a
sentencing judge is permitted to reach within the framework of
the guidelines. I do not depart as an expression of general
dissatisfaction with the guidelines. It is rather late in the
day for that and would be tilting at windmills. In addition
such dissatisfaction has been expressed quite eloquently by
others. See, e.g., dissenting opinion by Chief Judge Merritt in
United States v. Brewer, 899 F.2d 503, 512 (6th Cir. 1990) ("In
devising a fair sentencing system, there is something worse
than small disparities in sentencing — mechanistic rules that
impose unjust or arbitrary punishment because they preclude the
sentencing judge from considering all relevant factors and
nuances in the case.").
What is the framework of the statutes and guidelines within
which I depart?
I begin with Policy Statement 4(b) of the U.S.S.G. at pp.
1.5, 1.6 (Nov. 1, 1990), which, in relevant parts read:
The sentencing statute permits a court to depart
from a guideline-specified sentence only 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." 18 U.S.C. § 3553(b).
The Commission intends the sentencing
courts to treat each guideline as carving out a
"heartland," a set of typical cases embodying the
conduct that each guideline describes. . . . the
Commission does not intend to limit the kinds of
factors, whether or not mentioned anywhere else in
the guidelines, that could
constitute grounds for departure in an unusual
The Commission has adopted this departure policy
for two reasons. First, it is difficult to
prescribe a single set of guidelines that
encompasses the vast range of human conduct
potentially relevant to a sentencing decision. . ..
A second type of departure will remain unguided.
It may rest upon grounds referred to in Chapter
Five, Part K (Departures) or on grounds not
mentioned in the guidelines. While Chapter Five,
Part K lists factors that the Commission believes
may constitute grounds for departure, the list is
not exhaustive. The Commission recognizes that
there may be other grounds for departure that are
not mentioned; it also believes there may be cases
in which a departure outside suggested levels is
warranted. In its view, however, such cases will
be highly infrequent.
The crux of the matter lies in construing the language of
18 U.S.C. § 3553(b), and § 5H1.5 and § 5h1.6 of the Guidelines.
Section 3553(b) has been alluded to above. Section 5H1.5
Employment record is not ordinarily relevant in
determining whether a sentence should be outside
the guidelines or where within the guidelines a
sentence should fall. (Emphasis added).
Section 5H1.6 provides:
Family ties and responsibilities and community
ties are not ordinarily relevant in determining
whether a sentence should be outside the
guidelines. (Emphasis added).
A reading of the statute and the guidelines immediately
raises two questions. (1) How does the court find whether a
given circumstance (aggravating or mitigating) was or was not
adequately taken into consideration by the Sentencing
Commission in formulating the guidelines? (2) What standard is
the court to apply in determining what is or is not "ordinary"
or within or without the "heartland" carved out by the
guidelines? Unfortunately, interpretation cannot begin with the
plain meaning of the words of the statute and the guidelines
because the meaning of "adequately considered" and "ordinarily"
is not plain. In this regard Judge Posner made insightful
observations on statutory interpretation in Friedrich v. City
of Chicago, 888 F.2d 511 (7th Cir. 1989). He wrote, at 514:
. . interpretation must begin with the
linguistic and cultural competence presupposed by
the author of the statute. "Language is a process
of communication that works only when authors and
readers share a set of rules and meanings. . . ."
judges realize in their heart of hearts that the
superficial clarity to which they are referring
when they call the meaning of a statute "plain" is
treacherous footing for interpretation. They know
that statutes are purposive utterances and that
language is a slippery medium in which to encode a
purpose. They know that legislatures, including
the Congress of the United States, often legislate
in haste, without considering fully the potential
applications of their words to novel settings. . .
. When a court can figure out what Congress
probably was driving at and how its goal can be
achieved, it is not usurpation — it is
interpretation in a sense that has been orthodox
since Aristotle — for the court to complete (not
enlarge) the statute by reading it to bring about
the end that the legislators would have specified
had they thought about it more clearly. . . .
Although the "plain meaning" of the word "ordinarily" may not
be shared by the authors and readers of §§ 5H1.5 and 5H1.6, the
presence of the word in those guidelines is significant. In
United States v. Sharpsteen, 913 F.2d 59
(2d Cir. 1990), the
court considered whether the district court erred as a matter
of law in believing it lacked authority under the Guidelines to
make a downward departure based upon § 5H1.6 factors. In
concluding that he did the court wrote:
Section 5H1.6 specifies that these considerations
"are not ordinarily relevant in
determining whether a sentence should be outside
the guidelines." (emphasis supplied) This
contrasts with section 5H1.10 which deals with
race, sex, national origin, creed, religion and
socio-economic status. Instead of specifying that
certain factors are not "ordinarily relevant,"
section 5H1.10 excludes without qualification the
aforementioned characteristics as relevant to a
determination of a sentence. The clear implication
of section 5H1.6 is that if the court finds that
the circumstances related to family ties and
relationships are extraordinary, it is not
precluded as a matter of law from taking them into
account in making a downward departure.
Id. at 63.
I find the circumstances related to family ties and
relationships and to previous and current employment record to
be sufficiently extraordinary to warrant a downward departure
for the following reasons. Although ordinarily an employment
record is not relevant in determining whether a sentence should
be outside the guidelines U.S.S.G. § 5H1.5, the continuous
employment for thirteen years of this single parent of three
teenage children is extraordinary. That factor, coupled with
the fact that an exceptionally promising future of the older
two children would be threatened by the prolonged incarceration
of this mother drives the court to conclude that a downward
departure is warranted. See United States v. Jagmohan,
909 F.2d 61, 65 (2d Cir. 1990); United States v. Big Crow, 898 F.2d 1326
(8th Cir. 1990); United States v. Mills, 1990 WL 8081, 1990
U.S. Dist. Lexis 400 (S.D.N.Y. 1990).
Lest the decision in this case is sought to be regarded as
authority for a downward departure in every case of a single
parent, or in every case in which a defendant has been
gainfully employed, I emphasize that it is not so intended. The
decision in this case is intensely fact specific. I also wish
to emphasize that although passing references have been made in
the course of this opinion to the socio-economic background of
the defendant and to the fact that she is a first offender,
those factors were not regarded as factors warranting a
downward departure. The court is mindful of U.S.S.G. § 5H1.10
and of the teaching of Jagmohan that it is erroneous to depart
based upon the lack of a criminal record.
The Policy Statement cited above as well as the Policy
Statement to be found at U.S.S.G. § 5K2.0 support the court's
view in United States v. Lara, 905 F.2d 599, 604 (2d Cir. 1990)
"that it was not Congress' aim to straitjacket a sentencing
court, compelling it to impose sentences like a robot inside a
Guidelines' glass bubble, and preventing it from exercising
discretion, flexibility and independent judgment."
Having decided that a downward departure is consistent with
the spirit and the letter of the guidelines, after considering
the guidelines, policy statements and commentaries of the
Sentencing Commission, 18 U.S.C. § 3553(b) directs that the
sentence to be imposed shall be one having due regard for the
purposes set forth in 18 U.S.C. § 3553(a)(2) which provides
that the court shall consider:
(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
(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
Having given due consideration to all those purposes, the
defendant is committed to the custody of the Attorney General
for a period of six months, to be followed by a five year
period of supervised release. A special assessment of $50 is
The government does not oppose the defendant's application to
be permitted to surrender voluntarily to the institution to
which she is designated, and it is
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