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UNITED STATES v. GUIRO

May 17, 1995

UNITED STATES OF AMERICA against TAMMY GUIRO, Defendants.


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

 Weinstein, J.:

 The issue presented is how to satisfy statutory sentencing objectives when the existing institutional structure cannot accommodate the appropriate sentence.

 The defendant pled guilty to conspiracy to distribute and to possess with intent to distribute cocaine. 21 U.S.C. §§ 846, 841(a)(1) & 841(b)(1)(B). Because of her extensive cooperation with the government, which provided a 5K1 letter, her personal characteristics and her high prospects for rehabilitation, the court announced its intention to depart downward, sentencing her to eight months in a halfway house, provided that a suitable one could be located near her work and family home in New Jersey. The probation department then determined that no facility meeting the proposed sentence's requirements exists in that state. Accordingly, defendant is sentenced instead to three years of probation, conditioned on eight months of home confinement and 500 hours of community service, plus a $ 50 special assessment.

 I. FACTS

 In light of defendant's role as a minimal participant in the offense, her acceptance of responsibility and her lack of a criminal background, defendant faced a Guidelines sentence of 70 to 87 months. The statutory minimum for her offense is five years. See 21 U.S.C. § 841(b)(1)(B). The government submitted a "5K1 letter" authorizing the court to depart below both the statutory minimum and the Guidelines range. See 18 U.S.C. § 3553(e); 28 U.S.C. § 994(n); U.S.S.G. 5K1.1. Given the characteristics of her crime, her lack of a criminal history and her cooperation with the government, Guiro would be a candidate for the "safety valve" provision in the Violent Control and Law Enforcement Act of 1994. See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2.

 Guiro is an immature young female, slight of frame and frightened, who is determined to, and capable of, putting her crime behind her. She was drawn into the drug conspiracy through her romantic attachment to a drug dealer.

 She lives with her mother and her four siblings in New Jersey. Hers is a close-knit family. All its members appeared in court for her sentencing where their concern and support were apparent. She has been continuously employed as a key punch operator earning $ 8.49 per hour at a position that she has held since August, 1993. She has had no prior brush with the law.

 Immediately following her arrest, the defendant embarked on a course of full cooperation that has proved fruitful. Her assistance led to the arrest and guilty pleas of several drug coconspirators. Serious efforts to intimidate her, including the setting on fire of both her own and her mother's cars, and the presence of a coconspirator "standing watch" outside of her house for a period prior to her testimony, did not deter her from aiding the government.

 While some halfway houses are located in New Jersey, none are currently under contract with the federal government. Consequently, federal defendants from New Jersey sentenced to government halfway houses must serve in Manhattan or Brooklyn.

 II. LAW

 Section 3553(a) of Title 18 directs courts to consider a number of factors in order to impose sentences that comply with the statutory goals of sentencing. They include the nature of the offense, the defendant's characteristics and history, the need to deter future criminal conduct by the defendant or others, the possibility of providing education or other forms of rehabilitative treatment, and "the kinds of sentences available." 18 U.S.C. §§ 3553(a)(1)-(7). See United States v. Abbadessa, 848 F. Supp. 369, 378-79 (E.D.N.Y. 1994), vacated, remanded sub nom., United States v. DeRiggi, 45 F.3d 713 (2d Cir. 1995); United States v. Concepcion, 795 F. Supp. 1262, 1271-73 (E.D.N.Y. 1992), disapproved on other grounds, United States v. DeRiggi, 45 F.3d 713 (2d Cir. 1995). These factors incorporate the goals of consistency, rehabilitation, retribution and deterrence, and the principle that the punishment be "not greater than necessary." See 18 U.S.C. § 3553(a). DeRiggi does not inhibit an appropriate sentence in the instant case.

 One factor rarely mentioned by sentencing courts is the statutory directive to consider "the kinds of sentences available." See 18 U.S.C. § 3553(a)(3). Only one published opinion to date has construed this provision. In United States v. Wollenzien, 972 F.2d 890 (8th Cir. 1992), the Eighth Circuit court of appeals held that section 3553(a)(3)'s requirement that the trial court consider "the kinds of sentences available" does not mean that the trial court has to reject explicitly particular options on the record. Nonetheless, this factor is implicitly considered by courts at every sentencing proceeding. Courts face a multiplicity of options with every defendant -- even under the rigid Guidelines regime -- since a sentence may often combine incarceration, supervised release, mandatory participation in drug treatment programs, home confinement and other options. See U.S.S.G. § 5C1.1 (imprisonment options and substitutable punishments).

 While the choices are many in theory, they may be far fewer in practice. See Janet L. Dolgin, The Law's Response to Parental Alcohol and "Crack" Abuse, 56 Brook. L. Rev. 1213, 1264 (1991) (national data showing that 67,000 people were on waiting lists for drug treatment programs, and that only 20% of those who need treatment receive it) (citing Joe Davidson, Cries for Help: Some Addicts Beg for Drug Treatment, but Programs are Full, Wall St. J., Sept. 4, 1990, at A1); see also Lisa Janovy Keyes, Comment, Rethinking the Aim of the "War on Drugs": States' Roles in Preventing Substance Abuse by Pregnant Women, 1992 Wis. L. Rev. 197, 204-05 (waiting lists at drug treatment programs and other barriers to treatment); Francis X. Clines, Ex-Inmates Urge Return to Areas of Crime to Help, N.Y. Times, Dec. 23, 1992, at A1 (similar). Particular communities, such as minority youth, pregnant women and people who do not live in major cities, may be disproportionately affected by the limited availability ...


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