conspiracy to rob an armored van by force or threat of violence. The conspirators also possessed a dangerous weapon during part of the conspiracy.
In the instant case, there was never any real possibility that the offense would be successful. See Vasquez, 791 F. Supp. 348. Under such special circumstances, the crime can be considered "non-violent." Guideline § 5K2.13 would then apply and a downward departure would be warranted. Even if Guideline § 5K2.13 does not apply, however, a downward departure would still be required because of a combination of circumstances.
If the Sentencing Commission did not adequately consider the constellation of characteristics present in the individual case, downward departures are proper. As the Ninth Circuit wrote in United States v. Cook, 938 F.2d 149 (9th Cir. 1991):
Given the Sentencing Commission's acknowledgment of "the vast range of human conduct" not encompassed by the Guidelines, a unique combination of factors may constitute the "circumstance" that mitigates.
Id. at 153 (quoting 18 U.S.C. § 3552(b) (emphasis added); See also United States v. Glick, 946 F.2d 335, 339-40 (4th Cir. 1991) (district court had based downward departure on combination of two factors); United States v. Rodriguez, 724 F. Supp. 1118 (S.D.N.Y. 1989) (court considers various personal characteristics of defendant in determining propriety of downward departure).
Rehabilitation efforts may also be given weight in determining whether a downward departure is warranted. See United States v. Williams, 948 F.2d 706, 711 n.7 (11th Cir. 1991) (dicta) ("unusual" pre-sentence recovery from drug addiction could be a proper basis for downward departure); United States v. Sklar, 920 F.2d 107 (1st Cir. 1990) (district court may take drug recovery into account in "extraordinary" cases); United States v. Maddalena, 893 F.2d 815, 817-18 (6th Cir. 1989) (remand so that district court could consider pre-arrest drug recovery); United States v. Rodriguez, 724 F. Supp. 1118, 1119 (S.D.N.Y. 1989) (overcoming drug addiction "no mean accomplishment"); cf. Guideline § 5H1.4. But see United States v. Anders, 956 F.2d 907, 911 (9th Cir. 1992) (error for district court to consider drug rehabilitation efforts); United States v. Pharr, 916 F.2d 129, 132-33 (3d Cir. 1990) (downward departure for recovery not allowed), cert. denied, 114 L. Ed. 2d 725, 111 S. Ct. 2274 (1991); United States v. Van Dyke, 895 F.2d 984, 987 (4th Cir.) (participation in court ordered drug treatment not mitigating circumstance warranting departure), cert. denied, 112 L. Ed. 2d 82, 111 S. Ct. 112 (1990).
In the instant case, in combination, the defendant's near retardation, his vulnerability, his efforts at rehabilitation, and the incompetence reflected in the execution of the crime warrant a downward departure.
Determining the amount of the departure requires considerable exercise of discretion and judgment. United States v. Campbell, 967 F.2d 20 (2d Cir. 1992) (focus on the "reasonableness of the departure" rather than its mechanics); United States v. Johnson, 964 F.2d 124, (2nd Cir. 1992) ("Guidelines do not require a judge to leave . . . common sense at the door to the courtroom.").
Prior contacts of the court with defendants with drug habits suggest that 24 months of drug treatment during incarceration is enough to provide whatever rehabilitation will take place. Beyond this period, regression is likely. A four-level downward departure to take account of the defendant's special circumstances suffices. It permits a sentence of 24 months. Defendant will be a less serious hazard to the community and is less likely to return to his criminal ways if he continues his efforts at rehabilitation in prison for no more than two years. He also will be less likely to be preyed upon. See United States v. Gonzalez, 945 F.2d 525 (2d Cir. 1991) (affirming downward departure on grounds of vulnerability of defendant in prison).
The defendant is sentenced to 24 months in prison. He is directed to continue his drug treatment while incarcerated and during the period of supervised release of 3 years. A $ 50 assessment is imposed.
Jack B. Weinstein
United States District Judge
Dated: Brooklyn, New York
June 5, 1992
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