The opinion of the court was delivered by: JACK B. WEINSTEIN
Jack B. Weinstein, Senior United States District Judge:
II. FACTS AND PROCEDURAL HISTORY
C. Appellate court opinions
A. Courts must consider all facts and circumstances known at the time of sentencing
B. Historical basis of the rule that courts must consider all facts and circumstances known at the time of sentencing
C. Support in Sentencing Guidelines for the rule that courts must consider all facts and circumstances known at the time of sentencing
D. Support in court of appeals opinions for the rule that courts must consider all facts and circumstances known at the time of sentencing
1. Post-offense conduct and Guidelines departures
2. Post-offense conduct and Criminal History
E. Application at resentencing of rule that courts must consider all facts and circumstances known at the time of sentencing
1. A resentence is a sentence
2. Judge must use all information available up until time of resentence
F. Caselaw imposing temporal limits on fact-finding
G. Departures based on "character of the offender"
1. Inordinate effects on others
2. Inordinate effect on defendant
H. Application of grounds for departure at resentencing following successful appeal by the government
IV. APPLICATION OF LAW TO FACTS
C. Summary of grounds for departure
Thirty employees of the Taxi & Limousine Commission accepted bribes to overlook defects in taxis they inspected and to certify inspections that never took place. All thirty pled guilty to the same offense, conspiracy to commit extortion, 18 U.S.C. § 1951(a). Their degree of culpability varied widely. Some defendants organized the operation; others followed the organizers' instructions.
At the initial sentencing, the district court recognized the importance of sentencing defendants in proportion to their culpability. For reasons explained below, strict application of the Sentencing Guidelines would have required the court to impose longer prison terms on some of the least culpable offenders than on some of the leaders. To avoid a result so contrary to the statutory scheme and proper purposes of sentencing, the court sentenced pursuant to section 3553(a) of Title 18. See United States v. Abbadessa, 848 F. Supp. 369 (E.D.N.Y. 1994); United States v. Concepcion, 795 F. Supp. 1262, 1275-81 (E.D.N.Y. 1992).
The court of appeals reversed as to the six defendants whose sentences were appealed. Holding that the Guidelines are binding, independent of the underlying statutory pattern and regardless of result, it vacated the sentences and remanded for resentencing. United States v. DeRiggi, 45 F.3d 713, 719 (2d Cir. 1995) [DeRiggi I].
On resentencing pursuant to the mandate of the court of appeals, the Guidelines must be interpreted in light of the traditions and purposes of sentencing in imposing the most rational sentences the system will permit. The sentencing court must consider the facts as it finds them at the time of resentence. Additional facts supplement those considered at the time of the first sentence.
For example, at the time of resentencing by this court, one defendant was eight days away from the end of his term. He was well into the deinstitutionalization process. He had moved to a community facility to assist in obtaining employment, and had begun psychologically to reestablish family ties. His children -- three of whom appeared in court -- awaited his arrival home with intense anticipation. To add a second year to his sentence would have been cruel, and would have exacted a far higher price from the defendant and his family than the imposition, at the outset of a significantly longer prison term.
Another defendant had already been released. He described in detail his efforts to reestablish ties with his wife and two children since his return home. The relationships had been severely strained by his incarceration. To send the defendant back to prison would have had far more serious consequences than initial imposition of a longer term.
Considering new circumstances on remand not known to the court of appeals does not violate the mandate rule. The power to depart under the Guidelines allows the court to dip below the Guidelines ranges in response to factors not adequately considered by the Sentencing Commission in the formulation of the Guidelines. In the instant case, one such factor is the hardship created when a defendant -- released or soon to be released -- is resentenced to a longer term after appeal. This factor was not considered by the sentencing commission in the formulation of the Guidelines; it constitutes a valid ground for departure. This kind of resentencing hardship can also be seen as exacerbating extraordinary family circumstances. Family circumstances are an established ground for departure in this circuit.