Because of the quantity of the drug, its relatively low level of purity, the defendant's timely plea of guilty, and the absence of any aggravating factors, a sentence of 41 months -- the bottom of the guideline range -- would be appropriate here. Of course, as already noted, the defendant faces an extraordinarily severe penalty in addition to incarceration for a longer period of time and under far more difficult circumstances than those generally faced by a United States citizen who committed the same offense. A sentence at the low end of the applicable guideline range does not adequately take account of this additional penalty. Accordingly, some downward departure is necessary in order to impose a sentence that is not "unreasonably harsh under all the circumstances of the case. " S. Rep. No. 225, 98th Cong. 1st Sess., 76 (1983), reprinted in 1984 in U.S.C.C.A.N. 3182, 3259.
The difficulty, of course, is in divining a number, in months or years, that corresponds to the collateral penalty petitioner faces. The fact that "there are inherent difficulties in any attempt at calibration," however, does not provide a reason for not departing. United States v. Pergola, 930 F.2d 216, 220 (2d Cir. 1991). Nor does the fact that it is not certain whether, even if he had been a United States citizen, the defendant would have been offered the privilege of serving 10% of his sentence in a halfway house or in home confinement. The factual predicate for a departure from the guidelines need not be established with certainty. United States v. Nichols, 912 F.2d 598, 603 (2d Cir. 1990). Here, 18 U.S.C. § 3624(c) requires the Bureau of Prisons to assure, "to the extent practicable," that every prisoner spend a "reasonable part" of the last 10% of his sentence, not to exceed six months, in some type of community confinement, and the United States Attorney has not suggested a specific reason why the defendant would have been denied the benefit prescribed by section 3624(c) if he were a United States citizen.
Under the circumstances here, a two point reduction in the offense level, which translates into a sentence up to eight months less than the defendant otherwise would face, plus the forfeiture of his status as a resident alien and deportation, is appropriate. If the guideline range represents "a sentence sufficient, but not greater than necessary" to effectuate the purposes of providing just punishment, deterring future misconduct and protecting the public from further crimes of this defendant, the combined punishment of 41-51 months plus deportation is far more severe than necessary.
On the other hand, a departure greater than a two point reduction in the offense level is not warranted. Aside from the considerations otherwise relevant, any greater departure would involve overriding the wishes of Congress and the Executive Branch to a greater extent than is appropriate. The departure brings the sentence down to thirty-three months, which is almost half of the mandatory five-year sentence prescribed by Congress. The United States Attorney, who has adopted a plea bargaining policy that allows a sentence to be imposed pursuant to the Sentencing Guidelines and below the five-year mandatory minimum, opposes any downward departure. While the grounds upon which he bases his opposition are without merit, it must be recognized that extreme departures from the Sentencing Guidelines over his objection can only have the effect of hardening an otherwise responsible and commendable exercise of his discretion. Accordingly, it is my intention to depart downwardly to a guideline level of twenty, and impose a sentence of thirty-three months.
Edward R. Korman
United States District Judge
Dated: Brooklyn, New York
August 14, 1992