United States District Court, Eastern District of New York
April 23, 1991
UNITED STATES OF AMERICA
The opinion of the court was delivered by: Weinstein, District Judge.
MEMORANDUM AND ORDER
Defendant was arrested in October of 1989. During pre-trial
detention, he was diagnosed as having testicular cancer. The
affected organs were surgically removed. Thereafter, he
received chemotherapy and radiation. In a subsequent
examination, multiple pulmonary nodes were discovered, and the
attending physician diagnosed a metastatic germ cell tumor.
He pled guilty to conspiring to possess with intent to
distribute in excess of 500 grams of cocaine. The object of the
conspiracy was to distribute 300 kilograms of cocaine. The
guideline range is one hundred and fifty-one to one hundred and
eighty-eight months in prison with at least a four year term of
supervised release and a fifty dollar special assessment. The
statute provides a five year minimum term of imprisonment.
See 21 U.S.C. § 841(b)(1)(B).
Defendant now moves for a downward departure under Sections
5H1.4 and 5K2.0 of the United States Sentencing Guidelines on
the ground that his metastasized cancer is a serious,
life-threatening illness, which constitutes an extraordinary
physical impairment as that term is defined in the guidelines.
The Government agreed at the time of sentencing not to contest
a court ruling that defendant's cancer is a "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); U.S.S.G. § 5K2.0; see
United States v. Perez, 756 F. Supp. 698 (E.D.N.Y. 1991).
A downward departure without recommendation by the Government
(cf. U.S.S.G. § 5K1.1) is warranted. Defendant is sentenced to
the statutory minimum five year term of imprisonment, a five
year term of supervised release and a fifty dollar special
assessment. Since no recommendation of leniency is made by the
Government, a term of imprisonment less than five years is not
permissible. See 18 U.S.C. § 3553(e).
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