at the time of sentencing. However, a 16-level departure seriously over-represents his criminal past.
CRIMINAL HISTORY CALCULATION
Turning to the computations made to determine criminal history, further discrepancies develop. Without question, the plea of nolo contendere to manslaughter is serious, and there is no quarrel with the 3-level increase for that offense. But it is noteworthy that the deportation order did not immediately follow that conviction and did not occur until after Mr. Hinds subsequently was convicted on the marijuana charges. He was sentenced on the manslaughter charge on March 2, 1984, and released on February 2, 1987. He was sentenced on the marijuana charges on December 29, 1988, and released on those charges on June 7, 1989. Finally, he was deported on August 3, 1989. The record fails to reveal why the Immigration authorities delayed in the deportation proceedings.
Turning to the marijuana convictions the application of a 3-level increase for each conviction greatly overstates the seriousness of these offenses. Both convictions are felonies in Florida and, therefore, are considered "aggravated felonies" under the federal definition. However, in many jurisdictions, including New York, neither marijuana conviction would be considered a felony. One of the offenses involved the sale of 2 1 2 grams of marijuana for $ 10.00, which is clearly a misdemeanor in New York. While no amount is specified in the other conviction, it was apparently a minor infraction because he was permitted to plead guilty to both counts together and was sentenced concurrently.
If an offense is a misdemeanor in one jurisdiction and a felony in another, it is simply unfair to treat one defendant in one way and another defendant in a different fashion. Furthermore, prior to November 1, 1991, the two marijuana sales which were consolidated for sentencing would have resulted in only 3 criminal history points, rather than 6. 1990 Guidelines, at 4.7, Application Note 3. The changes are described in the 1991 Manual at p.269, Application Note 3, Related Cases. The additional language states: "Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense)." Again, the Commission in its Appendix C to the Manual of 1991 at P 382 does not attempt to offer an explanation of how this change will fix disparity among sentences or how it is connected to Congressional direction. The Commission fails to set forth any reason for this substantial change.
On two occasions, the defendant was convicted of possession of small amounts of marijuana. It is not clear how much was involved. It should be observed that in New York, possession of a small amount of marijuana is a minor infraction only, but I will not reduce the criminal history category on that score. The criminal history score of 22 seriously over-represents the criminal history of the defendant, and there is a strong argument for its reduction.
OTHER FACTORS TO BE CONSIDERED
After conviction and before sentence, I instructed the United States Attorney to provide information as to the manner in which § 1326(a) Immigration cases were referred to the United States Attorney for prosecution. My suspicion was that individuals who appeared at our entry point were treated much differently from individuals who attempted entry at the Southern border.
A local Immigration supervisor testified about the practice at the Buffalo ports of entry only. He said that in each case, where it was apparent to the officer that there may be a violation of § 1326(a), it was referred to the United States Attorney for a prosecutorial decision. The United States Attorney offered no information on how similar cases were handled outside of this area. Information could have easily been provided, but it was not. Therefore, the court will surmise that individuals are treated much differently if they attempt to enter at other borders.
Defendant was deported in 1989. He was told that if he attempted to enter the United States, he could be sentenced to a term of up to 2 years (Government's Exhibit 1). No argument can be made that the United States is bound by this representation to the defendant, and Congress was entitled to change the law if it desired. Additionally, it is uncertain whether this had any bearing on the defendant's decision to attempt entry. Nevertheless, he was told that he faced a sentence of only two years and is now subject to a much longer term. Standing alone, this would not warrant a downward departure but should be considered, coupled with other factors, in making a determination whether a more lenient sentence should be given.
The responsibility of district courts at the time of sentencing and the authority to depart from the Sentencing Guidelines was recently reviewed in United States v. Rogers, 972 F.2d. 489 (2d Cir. 1992). The court said:
A district court's authority to depart from the Sentencing Guidelines is statutory and is grounded in the proposition that the Guidelines do not adequately consider a certain aggravating or mitigating factor in assessing a defendant's sentencing range. See 18 U.S.C. § 3553(b) (1988) . . . . The Guidelines themselves recognize that a "sentencing system tailored to fit every conceivable wrinkle of each case would quickly become unworkable and seriously compromise the certainty of punishment and its deterrent effect." U.S.S.G. Ch. 1., Pt. A, intro. In recognition of the necessary limitations of the Guidelines framework and of a sentencing court's statutory authority to depart from the prescribed formula, the Sentencing Commission describes the Guidelines as "carving out a 'heartland,' a set of typical cases embodying the conduct that each guideline describes." Id. The Commission explains that "when a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted." Id.
The advice from the Court of Appeals applies to this case. Admittedly, the defendant was not the most upstanding citizen of South Florida. The question before the court, however, is whether the Guidelines take into consideration factors which should be considered in determining whether a downward departure is justified. I believe it is clear that the Guidelines do not do so. Therefore, a downward departure must be imposed.
I find that the mechanical application of the scoring method seriously over-represents the nature of the offense committed by Mr. Hinds. Substantial reduction is in order. Considering all of the factors, I consider that Mr. Hinds' criminal history ranges between III and IV, and I will consider this in determining sentence. If he is sentenced under the new Guidelines, with a criminal history of 3 and an offense level of 22, the possible sentence is from 51 to 63 months. If he were sentenced under the 1990 Guidelines, with a criminal history of 4 and an offense level of 10, his sentence would range between 15 to 21 months. I believe that this intermediate point results in a fair sentence. Therefore, I will sentence the defendant to the custody of the Bureau of Prisons for a period of 33 months.
JOHN T. CURTIN
United States District Judge
Dated: October 7, 1992
© 1992-2004 VersusLaw Inc.