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UNITED STATES v. EKHATOR

May 25, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
OSAREN EKHATOR, Defendant.



The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 The defendant arrived at John F. Kennedy Airport on February 9, 1992 on a flight which originated in Lagos, Nigeria. She was carrying in her pocketbook slightly less than a kilogram of heroin which was 73% pure, together with $ 3,000 in U.S. currency. She was indicted and subsequently pleaded guilty pursuant to a plea agreement to a lesser included charge of knowingly and intentionally importing heroin into the United States, namely, 21 U.S.C. ยงยง 952(a) and 960(b)(3), which provided for a term of imprisonment of twenty years with no mandatory minimum.

 The undisputed guideline range mandated by the United States Sentencing Guidelines ("U.S.S.G.") was 51-63 months. The defendant's plea agreement precluded her from moving for a downward departure from those guidelines. Recognizing the constraint of the plea agreement, the defendant did not move for a downward departure but submitted, instead, letters from the defendant and her relatives and friends, recounting the health problems of the children she left behind and the difficulties experienced by their custodians during her incarceration.

 The defendant chose to make no statement about her offense to the probation officer during a presentence report interview. She claimed to be the owner of a supermarket in Nigeria and explained that she came to this country to purchase cosmetics for her store from an individual she did not know how to contact. She reported no assets or income either here or in Nigeria notwithstanding the $ 3,000 found in her purse. She stated she had a social security number which she needed as a prerequisite for transacting business in the United States, but a search for such a number by the Probation Department proved fruitless. She informed the probation officer that she had a bank account with the Union Bank in Dallas, Texas. An inquiry to that bank by the probation officer revealed that there was no account in the defendant's name and that the Union Bank is an investment bank for large companies and does not entertain individual accounts. Recalling that the defendant was arrested in February, 1992, passport records disclosed that since 1991 she had made four trips to the United States. The court could take judicial notice of the fact, if it were so inclined, that a round-trip flight from Nigeria to New York costs substantially more than a Staten Island ferry ride.

 The defendant was sentenced on August 17, 1992 to the minimum prescribed by the U.S S.G., 51 months. In response to the personal difficulties being experienced by the family she left behind and a request to consider those difficulties and impose the minimum possible sentence (which was done), the court also said:

 
I read all of the letters, Miss Ekhator. I received your letter and I received Mr. White's letter, and I received letters from a number of other people from your country.
 
I wish you had thought about all of this before you had decided to try and bring drugs into the country. I also wish that the law permitted me to do something, but it doesn't.

 The defendant appealed her sentence, arguing that the court erroneously believed that it lacked authority to depart downward sua sponte on the basis of her family circumstances.

 It is late in the day to recount the plethora of deficiencies in the guidelines and the layers of judicial gloss which have been placed upon those guidelines. Imposing a sentence of imprisonment which, in far too many cases, is draconian and irrational, is too serious and heart-wrenching a task to be enmeshed in a web of wordsmanship.

 The decision to vacate and remand the sentence is, by clear implication, bottomed upon the assumption that this district court which has been imposing sentences since the effective date of the U.S.S.G. on November 1, 1987, is still, six and one-half years later, unaware of the law. This is remarkable in light of United States v. Handy, 752 F. Supp. 561, 563-64 (E.D.N.Y. 1990), cited in the Circuit Court's opinion, in which I wrote at some length on downward departure based upon extraordinary family circumstances, the very issue of which the Circuit Court here decided I may have been unaware. The Circuit Court in this case also cited United States v. Jagmohan, 909 F.2d 61 (2d Cir. 1990), which affirmed my downward departure from the sentencing guidelines, and it could have cited too, United States v. Lara, 905 F.2d 599 (2d Cir. 1990), which was another seminal case on downward departure emanating from this court. In addition to the assumption that this court is not aware of the law it is called upon to apply, the reference to its prior decisions on downward departures suggests that in imposing sentences this court is in a benign state of amnesia, totally oblivious to and unaware of its own decisions in particular, and to the law in general.

 The patent assumption that United States district court judges are unaware of the law unless they explicitly manifest that they aren't by reciting, mantra-like, "I am aware of my discretion but choose not to exercise it," demeans the very serious process of sentencing and the judge who presides over it. It demeans the process by reducing it even further to the sterile ritual that sentencing guidelines have already made it. *fn1"

 A comparison between this case and United States v. Russell, 870 F.2d 18 (1st Cir. 1989), is instructive. The issue there was essentially the same as here -- an ambiguity in the district court's view of it own discretion. That court, however, resolved the problem in a significantly different manner. It said:

 
Our usual presumption, moreover, is that a district court is aware of the law that it is called upon to apply. On the other hand, we recognize that the sentencing guidelines had only recently been introduced at the time of the hearing -- July 1988 -- and that courts had had limited experience in their implementation. . . . Thus, wishing to be absolutely fair to defendant, we cannot dismiss the possibility, remote though it may be, that the district court underestimated its own power, if so moved, to depart from the guideline range. . . .
 
In light of this ambiguity, we feel that the best course is for us to retain appellate jurisdiction and to ask the district court for clarification of its own decision-making process. . . . If the district court informs us that it was aware of its discretion, but declined to exercise it, our intention is to affirm the sentence. If the court informs us that it was not then fully apprised of its discretion to depart as found in the guidelines, our intention is to vacate the sentence and remand for resentencing. In ...

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