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UNITED STATES v. CONCEPCION

June 30, 1992

UNITED STATES OF AMERICA
v.
MARTHA CONCEPCION, a/k/a MARTHA MARTINEZ, a/k/a MARTHA MORALES, a/k/a JULIANNA SANCHEZ, a/k/a SONIA SERRANO, a/k/a GLADYS TORRES, Defendant. UNITED STATES OF AMERICA v. ANA MORILLO, a/k/a ROSSI COLON, a/k/a MARTA FERNANDEZ, a/k/a LUZ LOPEZ, a/k/a GLORIA VELEZ, a/k/a JEANETTE RUIZ, Defendant. UNITED STATES OF AMERICA v. JANE ARENDELL, a/k/a MARIA GONZALEZ, a/k/a ANNETTE RIVERA, Defendant. UNITED STATES OF AMERICA v. DINORAH CABA, a/k/a DIGNA RIOS, a/k/a DINORAH SANTANA, a/k/a MARIA SANTANA, a/k/a MARITZA SANTANA, Defendant. UNITED STATES OF AMERICA v. ANNA VEGA, a/k/a ANA VEGA, a/k/a ANA HERNANDEZ, Defendant. UNITED STATES OF AMERICA v. LOURDES ARIAS, a/k/a HILDA LOPEZ, a/k/a JUDY OJEDA, a/k/a YVETTE RIVERA, FRANCISCA VARGAS, Defendant. UNITED STATES OF AMERICA v. ESPERANZA LARA, a/k/a MARIA CANDELERIA, a/k/a ANNY CENTRERAS, a/k/a PURA CONCEPCION, a/k/a IVETTE MATOS, a/k/a JANET RIVERA, a/k/a JANET RODRIGUEZ, a/k/a MILAGROS SOTO, Defendant. UNITED STATES OF AMERICA v. MAYRA COLLADO, a/k/a VERONICA AYALA, a/k/a CRISTINA MEJIAS, a/k/a JOSEPHINE MINAYA, Defendant. UNITED STATES OF AMERICA v. MARIA RAMIREZ, a/k/a ANA MOLDONADO, a/k/a MARINA RAMIREZ, Defendant. UNITED STATES OF AMERICA v. PATRIA MABEL MERCEDES, a/k/a CARMEN MARRERO, a/k/a MARCY PELIER, Defendant. UNITED STATES OF AMERICA v. GEORGINA CEPIN, a/k/a MARIA GONZALEZ, MARGARITA RODRIGUEZ, a/k/a EVELYN ROSARIO, a/k/a ANTONIA SANCHEZ, Defendant. UNITED STATES OF AMERICA v. MARIA BAEZ, a/k/a IRIS CRUZ, a/k/a MARIA GONZALEZ, a/k/a SARA GONZALEZ, a/k/a YARAINA GRACIANO, a/k/a ROSAURA LOPEZ, a/k/a ELSA RIAS, a/k/a MIRIAM SANTANA, a/k/a SABRINA SOTO, a/k/a MARITZA TORRES, Defendant. UNITED STATES OF AMERICA v. GRISELINA OGIRRI, a/k/a GRISELINA ALTAGRACIA RODRIQUEZ de THEN, a/k/a GRISELINA THEN-AMPARO, Defendant. UNITED STATES OF AMERICA v. SONIA JIMINEZ, a/k/a MARITZA CRUZ, a/k/a PATRIA GERMOSEN, a/k/a SALINA SALAS, a/k/a NOEMI SANTIAGO, a/k/a MARIBEL VEGA, Defendant. UNITED STATES OF AMERICA v. CALIDAD REYNOSO PERALTA MACK, a/k/a MARINA GARCIA, a/k/a CARIDAD MACK, a/k/a MARIA PEREZ, a/k/a DIANA PONS, a/k/a SANDRA TORRES, Defendant. UNITED STATES OF AMERICA v. FLAVIA POLANCO, a/k/a CARMEN GARCIA, a/k/a ZURMA GONZALEZ, a/k/a GUILLERMINA RIVERA, a/k/a XIOMARA SOTO, a/k/a XIOMARA VARGAS, Defendant. UNITED STATES OF AMERICA v. MARILYN PEREZ, a/k/a MARIA RIVERA, a/k/a SONYA RIVERA, Defendant. UNITED STATES OF AMERICA v. ELVIRA GARCIA, a/k/a SONIA HERNANDEZ, ALTAGRACIA PENA, a/k/a CESARIA RIVERA, a/k/a FLORA RIVERA, Defendant. UNITED STATES OF AMERICA v. ROSARIO LOPEZ, a/k/a SARA CALDERON, a/k/a MARIA MEDINA, Defendant. UNITED STATES OF AMERICA v. MERCEDES PERALTA, a/k/a SANDRA COLON, a/k/a MELAGROS RIVERA, Defendant.



The opinion of the court was delivered by: JACK B. WEINSTEIN

 Jack B. Weinstein, District Judge:

 These twenty defendants represent the first of approximately fifty-five who are being prosecuted in this court for fraudulently obtaining assistance from the Aid to Families with Dependent Children (AFDC), Food Stamp and Medicaid programs for the poor. The group now before the court consists primarily of Dominican women who bought, sold and used false identity documents and who bribed government employees to obtain government funds. Some of the defendants used as many as nine aliases and obtained upwards of $ 50,000 per year in welfare payments. Others who sold and forged documents, took bribes or helped manage the scheme netted hundreds of thousands of dollars each.

 All twenty defendants have pleaded guilty to federal crimes. Their sentencing raises difficult issues as to the proper role of the court and other agencies in preventing and punishing welfare fraud. To arrive at sentences that protect the public and are fair to the defendants requires an analysis of the theoretical bases for punishment, governing statutes and the work of the federal Sentencing Commission.

 I. FACTS

 Nineteen of the defendants have pleaded guilty to fraudulently obtaining AFDC payments and food stamps in violation of 18 U.S.C. § 641. Section 641 provides:

 
Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof . . . or
 
Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted --
 
Shall be [guilty of a felony].

 The statutory maximum penalty for violations of section 641 involving property worth more than $ 100 is a $ 10,000 fine and ten years imprisonment. Id. 18 U.S.C. § 3571(b)(3) provides for additional fines up to $ 250,000. The statutory punishment scheme may in turn be affected by the Sentencing Guidelines. Those of the defendants who are aliens may also be subject to deportation under federal statutes at the determination of the Immigration and Naturalization Service (INS).

 One defendant, an employee of the New York City Human Resources Administration (HRA) who accepted cash payments in return for assisting the defrauders, has pleaded guilty to violating 18 U.S.C. § 666. It reads in relevant part:

 
(a) Whoever . . . (1) being an agent of an organization, or of a State [or] local . . . government, or any agency thereof -- . . . (B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $ 5,000 or more [shall be guilty of a crime.]

 18 U.S.C. § 666(a)(1)(B). The statute provides that violators receive up to ten years in prison and fines as determined under 18 U.S.C. § 3571 et seq.

 Under the federal Food Stamp program, persons living in households with limited disposable income are provided with coupons redeemable at retail food stores. In fiscal year 1989, about 20 million persons in this country received food stamps. United States Department of Commerce, Bureau of the Census, Statistical Abstract of the United States 1990, Table No. 605 (Cash and Noncash Benefits for Persons with Limited Income); see also N.Y. Times, June 29, 1992, at A1 ("One American in 10 is now on food stamps, the highest proportion ever."). The total federal expenditure for the Food Stamp program in that year was about $ 11 billion. Id. In New York in 1988, some 10 percent of all households -- about 1.5 million persons -- received food stamps at a cost of over $ 900 million. Id. at Table 606, (Federal Food Stamp and National School Lunch Programs, By State).

 AFDC is funded jointly by federal, state and local governments. In 1988, more than 3.5 million families nationally benefited from AFDC, receiving an average of $ 379 per month in payments. Id. at Table No. 607 (Public Aid -- Recipients and Average Monthly Cash Payments Under Supplemental Security Income and Public Assistance: 1975-88). AFDC families received nearly $ 17 billion in assistance that year, with New Yorkers obtaining $ 2 billion. Id. at Table No. 610 (AFDC and Supplemental Security Income -- Recipients and Payments, States and other Areas: 1980 to 1988).

 In New York City, AFDC benefits and food stamps are provided through the Department of Social Services (DSS), a division of the New York City HRA. In April 1992, the latest period for which figures are available, HRA was responsible for 258,362 cases involving a total expenditure of federal, state and city funds of $ 132,952,266. The administrative cost of running the program for the month was almost $ 21 million. See Memorandum from Director, Office Systems Planning, Research & Evaluation, Human Resources Administration, to Acting Deputy Commissioner, Income Support Programs, Human Resources Administration (June 19, 1992).

 Persons seeking AFDC aid and food stamps in New York City apply through one of several DSS Income Maintenance Centers. They must provide detailed identity information at these centers, including their social security numbers and those of their dependent children. Based on this documentation, the DSS determines the package of AFDC, Food Stamp and Medicaid benefits to which the applicant is entitled under law. A single parent of three children on public assistance normally is eligible to receive about $ 800 per month. Benefits are issued for periods not longer than six months, at which time recipients must re-establish their continued need of assistance.

 In 1990, the New York City Department of Investigation (DOI), following a confidential informant's tip, began an investigation into ongoing welfare fraud. It eventually discovered that nearly 1,000 fictitious cases -- in the order of one-half of one percent of active welfare cases in New York City -- had been opened in various City welfare centers.

 Women claiming need for benefits would apply for multiple benefit packages under several names by using false birth certificates for both mother and children, social security numbers not yet issued by the Social Security Administration, false immigration records, and other forged documents. The typical applicant claimed under each name to be the mother of three pre-school-aged children, making the fraud harder to detect by preventing HRA from checking Board of Education records. To avoid detection of the multiple files, the claimants usually listed a different false address for each case. Nevertheless, as many as twelve false cases used exactly the same address and apartment.

 Forgers prepared and sold the phony documents to retailers for $ 800 to $ 1,000. The retailers then recruited clients and provided then with a package of documents at a marked-up price of $ 1,800 to $ 2,500. The recruiters also charged an initial fee of $ 700 to $ 1,500 or would arrange to split future cash and food stamp proceeds. Some of the retailers maintained their own fraudulent cases. Retailers often arranged for the recipients to pay a fee of about $ 50 to third parties so that the recipients could arrange to have their welfare payments delivered to the third party's address for safekeeping.

 With the false documents in hand, the applicant would proceed to an Income Maintenance Center in Brooklyn, Queens, Manhattan or the Bronx. Within a week she would have her photographic welfare identification. Using this ID card she would be able to collect a bimonthly check and food stamps at any New York check cashing establishment linked to the HRA benefits dispensing system.

 Individual defrauders obtained anywhere from $ 30,000 to $ 313,000 over the course of several years. Some recruiters were directly or indirectly responsible for well over a million dollars in fraudulent payments to themselves and others. Current estimates indicate that the total amount of the fraud perpetrated by this scheme on the New York City HRA is approximately $ 5,600,000, not counting Medicaid benefits. The DOI estimates that welfare fraud in New York City has cost the city, state and federal governments almost 45 million dollars since 1985.

 In some cases City employees were bribed to approve the applications. In others the conspiracy operated successfully because of administrative ineptitude on the part of HRA -- this despite the program's substantial administrative cost. At the most basic level, HRA did not run simple computer checks with the federal Social Security Administration to determine if the social security numbers being used by the defendants had been issued. HRA also failed to forward prompt warnings to the local centers where a problem was brought to its attention. Many HRA workers were so poorly supervised that they did not understand the nature of the warnings they did receive. Information on computers indicating that many families shared the same apartment prompted no action. HRA also neglected to use the Department of Health's database of birth certificates to vet applicants.

 While not criminally liable, those responsible for such lackadaisical administration must be considered key participants in this series of frauds. Cf. Louk Hulsman, The Abolitionist Case: Alternative Crime Policies, 25 Isr. L. Rev. 681, 690-91 (1991) (relying on Report on Decriminalization, council of Europe (1980)). As the Commissioner of the New York City Department of Investigation has indicated:

 
Although some of the fraudulent issuances discovered during the course of our investigation were directly caused by the involvement of employees, in many cases the clients did not need the employees to perpetrate the scheme. The clients were able to take advantage of the lack of appropriate control and oversight mechanisms to open these bogus cases and receive benefits not due them.
 
For these reasons, criminal investigations, like that conducted by my office, are successful in the long term only if followed by effective management actions to prevent fraudulent cases from being entered on the rolls and to remove such cases as vigorously as possible. It is therefore essential that HRA expeditiously take action: 1) to remove from the rolls, after consultation with my office so as to prevent interference with ongoing corruption investigations, the 900 probable fraudulent cases using futuristic [social security numbers]; and 2) to verify identifying information for [another] approximately 80,000 [HRA] clients. . . .

 Memorandum from Inspector General, Department of Investigation, to Commissioner, Human Resources Administration 7 (July 26, 1991).

 HRA has provided documents suggesting that part of the problem was that New York State's Welfare Management System required reliance on new "Client Identification Numbers" rather than Social Security Numbers which had previously been used by New York City as its primary means of identifying eligible recipients. This and other failures of coordination between state and city offices may explain some of the confusion. See, e.g., Memorandum from Deputy Commissioner, Income Support Programs, Human Resources Administration, to Commissioner, Human Resources Administration (July 18, 1991); Memorandum from Acting Deputy Commissioner, Income Support Programs, Human Resources Administration, to Inspector General, Department of Investigation (Sept. 13, 1991); Memorandum from Acting Deputy Commissioner, Income Support Programs, Human Resources Administration, to Income Maintenance Center Directors (Nov. 21, 1991); Memorandum from Acting Deputy Commissioner, Income Support Programs, Human Resources Administration, to First Deputy Commissioner, Family Support Administration, Human Resources Administration (June 1, 1992). Any system that requires communication among three tiers of government, operates according to complex formulae for determining appropriate payments, and serves a fluctuating and extremely mobile group of often desperate clients numbering in the hundreds of thousands will be vulnerable to fraud. Moreover, too rigid a system will prevent those who are entitled to prompt help from getting it. When all is said and done, however, HRA must accept substantial responsibility for permitting this widespread conspiracy to run unchecked for five years.

 HRA is now initiating anti-fraud measures. DOI has recommended that all recipients be fingerprinted to take advantage of present technology which can match fingerprints rapidly. But see Jeffrey Plaut, When Welfare Tries Fingerprints, N.Y. Times, April 23, 1992 (questioning worth of fingerprint system based on usage in Los Angeles). Alternative mechanisms can compare photo identifications by computer. Although expensive, these technologies might be useful. Since it is apparent that any system that requires low-level employee initiative will tend to break down, the more reflexive the tests the better.

 II. PUNISHMENT

 A. General Considerations

 The sentencing issues raised in these cases are among the most difficult and sensitive with which a court must deal. The primary goal of punishment in this case is to deter, to the extent possible, future defalcations of government assistance funds. A second purpose is to rehabilitate the defendants.

 There is a temptation simply to skirt these underlying concerns and entrust the task of punishment to the federal Sentencing Guidelines. Alleviating the courts' sentencing burdens is not, however, the Guidelines' statutory function. Congress has directed the federal courts to impose penalties "not greater than necessary" to achieve the statutorily defined purposes of sentencing. 18 U.S.C. § 3553(a)(2); see also 18 U.S.C. § 3553(a)(1) (court must consider individual history and characteristics of offender); 18 U.S.C. § 3661 (same); cf. Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 Yale L.J. 1681, 1746 (1992) (under federal sentencing provisions, courts must depart from Guidelines "when the prescribed sentence seems inappropriate").

 This is not the place to rehearse the enormous theoretical, historical and pragmatic issues raised by punishment. See Generally International Symposium, "Justice in Punishment," 25 Isr. L. Rev. 283-791 (1991). It is enough to say that the statutory scheme established by Congress acknowledges these issues and has recognized the need to allow Article III judges wide disscretion to weigh, with the aid of the Sentencing Commission and other institutions, the complex of considerations underlying sentencing.

 In the instant cases, the Guidelines are not binding, although they have some utility as indicators of how other courts have treated other cases of fraud. See Part II B 2 a, infra (discussing statutory scheme for determining applicability of Guidelines and other sentencing criteria). Because they are based primarily on statistical averages of sentences imposed in the past, the Guidelines are of limited help where the crime and those who participate in it present special issues not normally faced in other cases. Equating multifarious frauds and defendants known to the courts in the past with those now before this court would deny both society and defendants the justice to which they are entitled under federal statutes and the Constitution. Converting the sentencing process into a mechanical, unreflective aggregation of numbers is emphatically not what Congress or the Constitution requires of independent Article III federal judges.

 Criminal sanctions against these defendants ideally ought to be accompanied by disciplinary action for the non-criminal acts and omissions of executives and employees whose ineptitude created and preserved the conditions that made welfare fraud easier than it should be. The soldier placed in unnecessary danger who breaks and runs needs to be punished for the sake of deterrence, but so too do the higher-ups who created the needless hazard.

 Communitarian considerations support these conclusions. To the extent that citizens have a responsibility to act for the good of the community, they may be punished when they flout their social responsibilities by stealing from, rather than contributing to, society.

 Individual defendants, particularly those most harshly punished, will take little comfort in a philosophical view of their situation. The defendants can perhaps claim that their dignity and rights as ends-in-themselves are being violated because they are being sacrificed for the good of society as a whole. Yet the laws and mores against defrauding the public are hardly arcane or inaccessible and are entirely necessary for the protection of both taxpayers and needy citizens and for the maintenance of a society in which the exercise of individual liberty is possible. The potential statutory penalties -- including up to ten years in prison -- are far more severe than those being imposed. None of the defendants has claimed or can claim to have failed to appreciate the iniquity of her acts. Under these circumstances it is not unjust to sacrifice the liberties of some for the benefit of others. It is impossible in administering the criminal law not to treat a guilty defendant as both an end-in-herself -- a person whose free will and dignity require that she be treated as both responsible for her crimes and deserving of a chance for rehabilitation and a productive life -- and as a means to provide an example that may encourage others to discipline themselves.

 These defendants have no cause to complain of any substantive or procedural injustice. They have pleaded guilty after being given every procedural protection -- including excellent attorneys, most paid for by the government -- and a full opportunity to prove extenuating circumstances. All were allowed to remain free on bail while investigators and prosecutions went forward. The defendants have received every consideration that a humane government can allow.

 The justice of punishing these defendants is not brought into question by the existence of a large group of potential defendants who are apparently not being prosecuted as a result of discretionary prosecutorial decisions not to pursue the less culpable cheaters. Declinations to prosecute are necessary in a society such as ours where crime is so rife that an attempt to pursue every delict would so overload the criminal justice system as to cause its breakdown. The malfeasances of the larger group can be handled administratively by having welfare authorities apply restitution sanctions and, in some instances, by deportation. The criminal law is not unjust because it is impracticable to apply it implacably to every criminal.

 Finally, there is a critical concern underlying each of these cases that the public's outrage be recognized. The court cannot ignore the public disillusionment inevitably triggered by the misuse of funds supplied by taxpayers -- many themselves at the edge of poverty. In sentencing each individual the court must take into account the damage done to our citizenry's shared sense of community and humanity and the danger posed to countless individuals by providing a convenient excuse to reduce assistance to those honest poor who need and deserve help.

 The punishments set out in the federal Sentencing Guidelines are not well adapted to serve the various purposes just discussed. They are of minimal value in determining how to treat each individual defendant because, among other reasons, they view punishment of these defendants almost entirely as a matter of imprisonment for periods determined by the dollar amount lost by federal, state and city governments. This is because the Guidelines, in seeking to achieve uniformity, rely on a narrow range of easily quantified data. Largely ignored are other relevant criteria, such as the length of time for which each defendant was receiving illegal payments, the number of false names each defendant used, the nature and extent of each defendant's participation in the scheme, the extent to which a defendant corrupted others by inducing them to participate, each defendant's background and circumstances and the needs of the defendants' children and extended families. While the Commission made an effort to determine how other judges were sentencing in 1985, the survey sample did not include any substantial number of cases such as those now before us, and the almost decade old account of judicial "practice" is now fossilized. See Yoram Schachar, Sentencing As Art, 25 Isr. L. Rev. 638, 659 (1991).

 An important issue to consider in these cases is how to achieve general deterrence where the same crime is perpetrated by large numbers of people, the majority of whom escape punishment. At least in theory, the level of pain applied to the few who are apprehended should be higher than that applied to each if all were caught. This is because the would-be criminal rationally contemplating the crime -- a necessary legal fiction in most cases -- will reconsider the low probability of getting caught in light of the greater punishment. Where many defendants are prosecuted at once, or where the media makes a particular punishment highly visible, the prospective perpetrator may be even more likely to reconsider. Because the Guidelines are, in the main, based on individual, low-profile sentences, they do not adequately take into account the special features of mass sentencing. Certainly the prosecutions and sentences now before the court will not go unnoticed in the New York City welfare community.

 A range of punishments reflective of the varying aims of sentencing is therefore appropriate, depending on the circumstances and acts of each defendant. These include (separately or in combination) deportation; prison terms; incarceration within the community or at home while defendants are closely monitored and compelled to work on community projects or for taxable compensation; restitution; fines; and limits on future access to public benefits.

 B. Alternatives

 1. Deportation

 Most of the defendants are citizens of the Dominican Republic who have status as documented aliens with "green cards" that permit them to work in this country. Perhaps the most severe punishment that can be imposed on these defendants is to banish them from the United States. See generally Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality 16 (1983) (citizenship a primary social good).

 Because Congress has chosen to place the power to deport exclusively with the Attorney General, courts have little to say on this subject. A district court's order restricting a criminal defendant's right to reenter or stay in the United States is improper to the extent that it assumes deportation or exclusion powers. United States v. Olvera, 954 F.2d 788, 793-94 (2d Cir. 1992) (district court's deportation order could only constitute recommendation to Attorney General to institute deportation proceedings); United States v. Jalilian, 896 F.2d 447, 448 (10th Cir. 1990) (although a court may "recommend . . . that an alien convicted of a crime of moral turpitude not be deported[,] no statute provides . . . that a district court may recommend or . . . direct that an alien be deported.") (emphasis in original); United States v. Abushaar, 761 F.2d 954, 959 (3rd Cir. 1985) (condition that defendant serve probation outside the United States exceeds court's authority); United States v. Hernandez, 588 F.2d 346, 351 (2d Cir. 1978) (district court's attempt to impose non-return to this country as condition of parole amounts to a direct deportation order and is not within its authority); United States v. Castillo-Burgos, 501 F.2d 217, 219-20 (9th Cir.) (order permanently deporting defendant exceeds the district court's authority), cert. denied, 419 U.S. 1010 (1974). See generally David E. Rigney, Propriety, in Criminal Case, of Federal District Court Order Restricting Defendant's Right to Re-enter or Stay in United States, 94 A.L.R. Fed. 619, 621-22 (1989).

 By statute, district courts retain the power to deliver a defendant to the INS for deportation hearings:

 
If an alien defendant is subject to deportation, the court may provide, as a condition of supervised release, that he be deported and remain outside the United States, and may order that he be delivered to a duly authorized immigration official for such deportation.

 18 U.S.C. § 3583(d); see United States v. Sanchez, 923 F.2d 236, 237 (1st Cir. 1991) (statute "simply permits the sentencing court to order, as a condition of supervised release, that 'an alien defendant [who] is subject to deportation' be surrendered to immigration officials for deportation proceedings under the Immigration and Naturalization Act."). The court also may require a defendant alien not to re-enter the United States illegally or without permission of the INS when such a requirement is a reasonable condition of the sentence. United States v. Mercedes-Mercedes, 851 F.2d 529, 530-31 (1st Cir. 1988); United States v. McLeod, 608 F.2d 1076, 1078 (5th Cir. 1979).

 A non-citizen defendant may waive his or her right to a deportation hearing before the INS and agree to leave the country as part of a negotiated plea. United States v. Janko, 865 F.2d 1246, 1247 (11th Cir. 1989); see also Mercedes-Mercedes, 851 F.2d at 531 n.3. No such agreement has been entered into here. This line of cases supports the court's authority to stay execution of a sentence should an alien illegally in the United States agree to depart promptly and voluntarily.

 Should the Attorney General's office pursue the matter, the INS may determine that some of the defendants are eligible for deportation under 8 U.S.C. § 1251(a)(2)(A)(i)-(ii). These statutory provisions call for deportation of any alien who (1) has received a prison sentence of at least one year for a crime of "moral turpitude" within five years of that alien's entering the country or (2) who is convicted of two crimes of moral turpitude. The provisions read:

 
(i) Crimes of moral turpitude
 
Any Alien who--
 
(I) is convicted of a crime involving moral turpitude committed within five years after the date of entry, and (II) either is sentenced to confinement or is confined therefor in a prison or correctional institution for one year or longer,
 
is deportable.
 
(ii) Multiple criminal convictions
 
Any alien who at any time after entry is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.

 8 U.S.C. § 1251(a)(2)(A)(i)-(ii).

 Whether a crime involves moral turpitude is determined by the inherent nature of the crime as defined, rather than the circumstances surrounding the particular transgression. United States ex rel. Sollazzo v. Esperdy, 187 F. Supp. 753 (S.D.N.Y. 1960), aff'd, 285 F.2d 341 (2d Cir.), cert. denied, 366 U.S. 905 (1961). In the instant case the defendants have pled guilty to "theft and conversion" of United States government funds. The Second Circuit has held that theft is a crime of moral turpitude within the meaning of the immigration law. Chiaramonte v. INS, 626 F.2d 1093, 1097 (2d Cir. 1980); see also United States v. Villa-Fabela, 882 F.2d 434, 439-40 (9th Cir. 1989) (same). Accordingly, defendants have committed crimes of "moral turpitude" within the meaning of 8 U.S.C. § 1251 (a)(2)(A)(i)-(ii). The defendants before the court who are legal resident aliens therefore will be deportable because of the instant pleas if they entered the country within five years or have been convicted of another crime of moral turpitude not part of this scheme.

 Until 1990, sentencing courts were entitled to recommend to the Attorney General that aliens who were deportable because of criminal activity not be deported. Congress has since abolished that power. See 8 U.S.C. § 1251(a)(2)(A)(iv); id. (Historical and Statutory Notes) (abolishing 8 U.S.C. § 1251(b)(2)). The court would in any event refuse to recommend against deportation of any of the defendants potentially eligible for such punishment.

 The United States Attorney shall take appropriate steps to bring these cases to the attention of the INS. Whether a defendant is deported will then depend upon decisions by the Attorney General and the INS. The INS is so overworked and underfunded that, as a practical matter, even defendants eligible for deportation may escape that penalty. See General Accounting Office, Immigration Control: Deporting and Excluding Aliens from the United States 5 (Oct. 1989) (INS overburdened, although INS resources tend to be focused on deportation of criminals).

 
2. Imprisonment, Probation, Community or Home Incarceration, Fines, Restitution, Community Service, Supervised Release.

 a. Sentencing Statutes

 Under the Sentencing Reform Act of 1984, where Congress has not provided specific sentencing requirements in the substantive law defining a particular criminal offense, sentencing for an offense is governed by three related statutory provisions codified in Chapter 227 of Title 18 of the United States Code. While the exact contours of the scheme created by these provisions are less than crystal clear -- the provisions even appear on superficial reading to be inconsistent -- close analysis of the statutory pattern clarifies the powers and responsibilities of trial judges in sentencing.

 The keystone, section 3551 of Title 18, mandates that the court impose sentences to achieve the general purposes listed in section 3553(a). Section 3551 reads in part:

 Authorized sentences.

 Id. As indicated below, the emphasis in section 3551 on subdivision (a)(2) of section 3553 and its failure to mention subdivision (b) have important implications in determining the effect of the Sentencing Guidelines.

 The purposes listed in section 3553(a) include promoting respect for the law, achieving just punishment and general deterrence, protecting the public against recidivist crime and providing the defendant with needed rehabilitation and treatment. In addition to listing the overall purposes of sentencing, section 3553(a) enumerates six factors that courts must consider in sentencing. Applicable Sentencing Guidelines and pertinent Policy Statements of the Sentencing Commission constitute two of these six factors. The section reads:

 Imposition of a Sentence

 
(a) Factors to be considered in imposing a sentence. -- The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider--
 
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
 
(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 conduct;
 
(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 effective manner;
 
(3) the kinds of sentences available;
 
(4) the kinds of sentences and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the [sentencing] guidelines . . . that are in effect on the date the defendant is sentenced;
 
(5) any pertinent policy statement issued by the Sentencing Commission . . . that is in effect on the date the defendant is sentenced;
 
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
 
(7) the need to provide restitution to any victims of the offense.

 18 U.S.C. § 3553(a).

 Finally, section 3553(b) of Title 18 provides further direction with respect to use of the federal Sentencing Guidelines. It states in relevant part:

 
The court shall impose a sentence of the kind, and within the range, referred to [by the Guidelines] unless 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. . . .

 18 U.S.C. § 3553(b).

  There has been a tendency among the federal courts to ignore sections 3551 and 3553(a) by moving directly to section 3553(b). See, e.g,. Statement of Vincent L. Broderick and Mark L. Wolf to United States Sentencing Commission, reprinted in, 4 Fed. Sent. Rep. 319 (May/June 1992) (noting Judicial Conference's rejection of proposal that Guidelines be made optional). This short-circuiting of the statutory scheme may be due to the natural tendency to focus exclusively on the Guidelines as a result of their novelty, the heated debate surrounding their enactment, the convenience to courts of being able to avoid consideration of the 3553(a) criteria in each case and the view of some in Congress and elsewhere that harsher sentences were needed and that the Guidelines would provide a way to compel judges to impose them. It is, however, the statute as enacted, not the views of individuals, even those embodied in Congressional or Sentencing Commission reports, that we are interpreting. Cf. Patterson v. Shumate, U.S. , 112 S. Ct. 2242, 2250-51 (1992) (Scalia, J., concurring) (interpretations departing from statutory text undermine principle of government by laws, not persons).

  The Sentencing Commission itself has tended to lose sight of the fact that it operates as part of a specific statutory scheme. As one of the drafters of the Guidelines' authorizing legislation has noted, the Commission has by and large failed to "aid the sentencing court in its consideration of the underlying purposes of sentencing [stated in the sentencing statutes] as a factor in the imposition of a particular sentence." Kenneth R. Feinberg, The Federal Guidelines and the Underlying Purposes of Sentencing, 3 Fed. Sent. Rep. 326, 327 (1991); see also Daniel J. Freed, Federal Sentencing, supra, 101 Yale L.J. at 1708-09. The lack of appropriate Commission guidance only increases the need for the sentencing court to heed the "carefully modulated tones" in the statutes and legislative history. Kenneth R. Feinberg, The Federal Guidelines, supra, at 325.

  As already noted, sections 3551 and 3553(a) direct the trial judge to consider many explicitly articulated factors, only two of which directly implicate the work of the Sentencing Commission. The remaining factors were developed and incorporated by the legislature; they are obviously entitled to no less weight than those developed under the aegis of the Commission. To read section 3553(b) without regard to the fact that other provisions detail the congressional design would violate a "common-sense principle of statutory construction that sections of a statute generally should be read 'to give effect, if possible, to every clause.'" Heckler v. Chaney, 470 U.S. 821, 829 (1985) (quoting United States v. Menasche, 348 U.S. 528, 538-39 (1955)). "'We must not be guided by a single sentence or member of a sentence, but look to the provision of the whole law.'" Gade v. National Solid Wastes Management Ass'n, U.S. , 60 U.S.L.W. 4587, 4590 (June 18, 1992) (quoting Pilot Life Ins. Co. v Dedeaux, 481 U.S. 41, 51 (1987)).

  The legislative history of the Sentencing Reform Act does not shed much light on the relation between sections 3551, 3553(a) and 3553(b). See S. Rep. No. 98-225, 98th Cong., 1st Sess. (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3257-62 (noting factors listed in § 3553(a)(2)-(3) & (a)(6)-(7) without explaining relation of factors to Guidelines).

  Some language from the Senate Judiciary Committee suggests that the sentencing court ought to subsume sections 3551 and 3553(a) into section 3553(b) by considering how the purposes of sentencing and the five non-Guidelines related factors listed in 3553(a) affect the calculation of each sentence under the Guidelines. See, e.g., id. at 3258 (court should consider first factor listed in § 3553(a) -- the nature and circumstances of the offense and the history and characteristics of the defendant -- "in assessing how the sentencing guidelines and policy statements should apply to the defendant."); see also Daniel J. Freed, Federal Sentencing, supra, 101 Yale L.J. at 1702 ("with facts, purposes, and options clearly in mind, the sentencer [is] instructed to turn to [the Guidelines and Policy Statements].").

  A reading of the statutes requiring attenuation of the force of section 3553(a) by merging it into section 3553(b) is supported neither by statutory language nor common sense. First, it ignores the grammatical structure of section 3553(a), which lists seven factors without ordering them in any kind of hierarchy. If Congress intended the inquiries under sections 3551 and 3553(a) to be merely part of each sentence calculation under the Guidelines, it is hard to see why it listed the Guidelines as but one among seven factors. Were Congress thinking along those lines, it most probably would have captioned section 3553(a) with a phrase like: "Factors to be considered in applying the sentencing guidelines," rather than "Factors to be considered in imposing a sentence," and would have listed the other six factors under such a heading.

  In addition, it must be kept in mind that, for the entire history of federal sentencing prior to the 1984 Act, judges exercised broad discretion in sentencing. The cautious, pluralistic language of sections 3551 and 3553 does not indicate a one hundred and eighty degree turn in sentencing pracitice. See Feres v. United States, 340 U.S. 135, 139 (1950) (courts "cannot impute to Congress . . . a radical departure from established law in absence of express congressional command.")

  Most important, an attempted reconciliation of the three sentencing provisions at the expense of sections 3551 and 3553(a) fails; it does not allow courts to give meaningful consideration to all of the factors listed in section 3553(a). Because those factors do not count as relevant data under the terms of the Guidelines, a sentencing court can bring them to bear in its Guidelines calculations only in relatively trivial ways.

  In cases such as those before the court, for example, one can envision several points in the sentencing process at which the considerations of section 3553(a) could come into play were the statutory pattern ignored: (1) in determining where within the Guidelines range a sentence should fall; (2) in determining (in the limited situations in which the Guidelines allow it) whether (a) probation is more desirable than incarceration or (b) a combination of imprisonment and home or community incarceration is preferable to imprisonment alone; and (3) in determining whether a departure is warranted. None of these contexts allows the court to give the non-Guidelines criteria of sections 3551 and 3553(a) the full consideration required by Congress.

  A Guidelines sentence for a case like those now before the court is computed by calculating an "offense level," which is determined mainly by the amount of money a defendant steals, and then cross referencing the offense level with the defendant's criminal history. That calculation generates a recommended prison sentence, expressed in terms of a range of months. Assuming that the sentencing court is bound by the Guidelines, it must determine where within this range a given defendant's sentence will fall. Given that the typical case involves very small ranges -- six months is common -- the court's discretion is in practice minimal. While the task of translating the broad purposes of sentencing into an actual sentence is inevitably delicate, there is no indication that Congress went to the trouble of enumerating the factors in section 3553(a) only as a means of permitting fine distinctions between sentences. Deciding, for example, on incapacitation rather than rehabilitation in non-routine cases involves macro, not micro, decisions.

  For a small spectrum of sentences at the low end of the Guidelines, courts have the option of considering probation rather than imprisonment or of mixing imprisonment with home or community incarceration. They are no doubt guided in considering these options by the section 3553(a) factors. Again, however, the statute nowhere suggests that the nature and circumstances of the offense and the characteristics of the defendant, the need for the sentence to achieve general and specific deterrence, promote respect for law, and assist in rehabilitation, the kinds of sentence available or the need to avoid sentencing disparities should be considered only in special cases involving relatively minor offenses.

  Reflection on these factors and purposes could also conceivably assist courts in determining whether a departure from the Guidelines is warranted. Yet this is not what the statute calls for. Section 3553(b) instead establishes a separate test for appropriate sua sponte departures -- the existence of aggravating or mitigating factors not adequately considered by the Commission -- which does not echo or cross-reference the factors listed in section 3553(a).

  As part of this first-step inquiry, courts must determine whether the Sentencing Commission's Guidelines and Policy Statements ought to control a given case to the exclusion of all other factors. In this regard, courts will tend to rely on the Guidelines where the case is typical of many like situations and is susceptible to the statistical analysis and compilation techniques used by the Commission in developing the Guidelines. See United States Sentencing Commission, Guidelines Manual 5 (Nov. 1991) ("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 experience of trial judges in determining whether a case is run-of-the-mill or presents unusual problems or local variations necessarily will inform this decision.

  If the conclusion of the first-step analysis is that the Guidelines and Commission Policy Statements ought to apply to the exclusion of other factors, the court proceeds to the second step, which is to follow the directive of section 3553(b) and apply the Guidelines and Policy Statements according to their terms. In this endeavor the court will look to the published work of the Commission, seeking to ...


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