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UNITED STATES v. ALTER

May 26, 1993

UNITED STATES OF AMERICA, Plaintiff,
v.
HARVEY ALTER, Defendant.



The opinion of the court was delivered by: KENNETH CONBOY

 Kenneth Conboy, District Judge:

 This case is before the Court for resentence, on remand from the Court of Appeals. We explicitly incorporate by reference in its entirety our previous opinion and order, reported at 788 F. Supp. 756 (S.D.N.Y. 1992).

 There, we concluded, that because there were several victims of the defendant's misconduct, in all instances derived from his abuse of the warder-inmate relationship, the only applicable grouping guideline is § 3D1.2(d), which states that grouping should occur when the offense level is determined largely upon a discrete measure of aggregate harm or the offense is ongoing and the offense guideline is written to cover the misconduct. Since the bribery guideline was not written to cover abuse of the warder-inmate relationship, we determined that no grouping analysis was necessary. Indeed, statutory rape of an inmate, conduct analogous to abuse of the warder-inmate relationship found here, is explicitly excluded as groupable behavior under § 3D1.2(d). In light of this, and recent refinements of guidelines application doctrine previously announced in United States v. Kim, 896 F.2d 678, 683-85 (2d Cir. 1990), we dispensed with any multicount analysis in this highly idiosyncratic case as unnecessary.

 In United States v. Alter, 985 F.2d 105 (2d Cir. 1993) [hereinafter, "Opinion"], the Court of Appeals held that, having drawn analogies between Alter's criminal acts and several federal offenses, this Court was obliged initially to engage in the multi-count analysis of the Sentencing Guidelines, using the analogous offenses that were found by this Court to most accurately capture Alter's criminal conduct towards Donald V., Gary O., and Jose L. Opinion at 1330. As calculated by the Court of Appeals, a multi-count analysis would result in an offense level increase (above the base offense level of 10) of, at most, four levels for these acts. Opinion at 1330-31. The Court of Appeals stated that this four-level increase, when augmented by the three-level increase for the disruption of Manhattan House and the federal corrections system, would yield an offense level of 17. The resulting sentencing range would be 24-30 months. Opinion at 1331.

 The Court of Appeals made clear, however, that this should not be construed as a holding that the appropriate sentence for Alter must lie within the 24-30 month range. The district court was explicitly told that, upon remand, it retained broad discretion to depart upwards beyond the seven levels dictated by application of the grouping rules to the analogous offenses identified.

 "Such further departures," the Court of Appeals stated, "are specifically contemplated in [United States v.] Kim." Quoting Kim, the Court noted:

 
If the offense of conviction or the other acts of misconduct warranting a departure are accompanied by aggravating factors not adequately considered by the Commission in setting the guideline ranges for the offense of conviction or various acts of misconduct considered under the multi-count analysis, a departure beyond the aggregate guideline range would still be available despite the use of multi-count analysis.

 Opinion at 1331 (quoting United States v. Kim, supra at 685).

 The multi-count analysis is included in the Sentencing Guidelines to guide district courts in sentencing defendants who have been convicted of multiple offenses. See United States Sentencing Guidelines ("U.S.S.G.") §§ 3D1.1-1.5, Introductory Commentary. In the context of upward departures, the purpose of engaging in the multi-count analysis is to protect a defendant from receiving a harsher sentence than the defendant would have received if he had actually been convicted of the conduct that formed the basis for the upward departure. Opinion at 1330. In this case, the Court has held that the conduct upon which its upward departures were based -- i.e., the conduct apart from the bribery of Donald V. to which Alter pleaded guilty -- was Alter's provision of drugs to that resident and his misconduct with respect to Gary O. and Jose L. Once the most analogous federal offenses to these acts of misconduct are thus identified, the Court may then undertake the first step of its measurement of any upward departure. That step is the application of the Sentencing Guidelines grouping rules and its multi-count analysis to the conduct upon which an upward departure may be based, so as to determine what sentence would be mandated by the grouping rules had the misconduct found by the Court actually resulted in convictions. See U.S.S.G. §§ 3D1.1-3D1.5. *

 The grouping analysis commences with a determination as to the number of groups of offenses that exist. See U.S.S.G. § 3D1.1(a)(1). A group of offenses consists of one or more convictions (or, in the context of an upward departure, analogous offenses) which should be lumped, or "grouped," together pursuant to U.S.S.G. § 3D1.2. Questions on whether to group particular offenses turn, in the main, on whether or not the acts of misconduct in question either arose from the same transaction or are readily consolidated.

 In this case, the Court, based upon detailed factual findings, referred to various federal offenses as the most closely analogous to Alter's misconduct: for Alter's misconduct toward both Jose L. and Gary O., sexual abuse of a ward, in violation of 18 U.S.C. § 2243(b); for Alter's provision of drugs to Donald V., provision of drugs, providing or possessing contraband in prison, in violation of 18 U.S.C. § 1791(a),(b)(4),(d)(1)(D). (4/30/92 Tr. 4-6). For purposes of the multi-count analysis, the Court must first determine how to group the four factually established acts of misconduct: Alter's actual conviction for bribing Donald V., his sexual abuse misconduct relating to Jose L., his sexual abuse misconduct relating to Gary O., and his drug distribution misconduct relating to Donald V.

 These four discrete wrongs are properly organized in three different groups. The bribery conviction regarding Donald V. is properly grouped with Alter's provision of drugs to the same resident. The two offenses relate to the same victim and are part of the same scheme or plan. See U.S.S.G. § 3D1.2(b) (offenses having the "same victim" and "constituting the same scheme or plan" should be grouped together). Indeed, this Court expressly found that the bribe involved a promised exchange of sex for drugs. See Alter, supra, 788 F. Supp. at 763. Apart from the grouping of the two "offenses" regarding Donald V., the Court finds that the "remaining acts of misconduct" found by the Court may not be grouped further. Alter's misconduct regarding each of the three residents each constitutes a separate group for the purposes of the multi-count analysis.

 Quite apart from the resolution of the "same victim" issue, the "offenses" regarding each resident cannot be grouped under (a) or (b) because they do not involve the "same act or transaction" and are not "connected by a common criminal objective or constituting part of a common scheme or plan." See U.S.S.G. § 3D1.2(a), (b). Alter, by design, segregated his misconduct toward each resident. Each resident was pursued separately, privately, and at different times. Having gone to such pains to segregate his misconduct, Alter may not now be heard to claim that the misconduct constituted the "same act or transaction" or represented part of a "common scheme or plan." See § 3D1.2, application note (two counts of assault, committed on two successive days against the ...


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