The opinion of the court was delivered by: WEINSTEIN
Weinstein, Senior District Judge :
Resentencing of Jose P. Molina provides further ground for the legal profession's rumination on the dubious state of our criminal sentencing law.
In the spring of 1992, four young men -- defendant Jose P. Molina, Carlos Castro, Billy Santiago, and Richard Serrano -- met in idle discussion. None, except Castro, had a criminal record. They had not been successful in school, although Molina had some college credits. Molina was working as the sole supporter of his extended family. The others were unemployed. Talk turned to the possibility of holding up one of the armored trucks delivering cash and food stamps to a check cashing store in their Brooklyn neighborhood. Idle palaver turned into a specific plan. Santiago and Serrano would be the gunmen, Castro would supply the weapons, and Molina would drive the getaway car.
Castro, after having provided the guns, on the morning of the planned robbery excused himself from further participation claiming to be busy with errands. The others proceeded as planned, with Santiago and Serrano carrying the weapons and Molina behind the wheel.
Molina double-parked in front of the check-cashing store while his armed confederates alighted to await the arrival of the armored truck. A woman driving a car parked at the curb and blocked by the getaway car ordered Molina to move so she could pull out. Obediently he acquiesced and circled the block in search of another parking space.
The armored truck arrived while Molina and the getaway car were out-of-sight. Santiago approached the guard carrying bags of money, instructing him to drop them. As the guard turned to flee Santiago fired his machine gun. The guard returned fire striking Santiago three times. Serrano, fleeing, fired his .38 caliber pistol in the air. During the melee, a seventy-nine year-old bystander was struck in the foot by a ricocheting bullet from the gun of one of the armored car guards.
Molina never got back to the scene of the botched attempt. Upon learning of the gunfire he fled to his house.
Santiago, injured, was arrested at the scene. The primary shooter and arguably the most culpable, he was the first to be sentenced. The government insisted that he plead guilty to counts charging conspiracy to commit robbery, 18 U.S.C. § 1951, attempted robbery, 18 U.S.C. § 1951, and use of a machine gun during a crime of violence, 18 U.S.C. § 924(c)(1). He was sentenced to 408 months in prison, a term inflated by a statutorily mandated thirty-year "enhancement" for crimes committed with a machine-gun. See 18 U.S.C. § 924(c)(1).
Serrano was charged with four counts -- conspiracy to commit robbery, and attempted robbery, use of a machine gun during a crime of violence, and attempted robbery of United States property, 18 U.S.C. § 2112. He initially pled not guilty, but then reversed course and signed a cooperation agreement with the government, pleading guilty to conspiracy to commit robbery and the machine gun charge. The government's motion for a downward departure based on substantial assistance was granted. Serrano was sentenced to 60 months in prison.
Castro and Molina were charged with five counts: conspiracy to commit robbery, attempted robbery, use of a machine gun during a crime of violence, attempted robbery of United States property, and assault, 18 U.S.C. § 2114. They pleaded not guilty and went to trial. Serrano testified against them.
Castro, the gun supplier, was acquitted. Molina was found guilty of one of the robbery charges. The jury failed to reach a verdict on the other counts, including use of a machine gun during a crime of violence.
Jury nullification of sentences deemed too harsh is increasingly reflected in refusals to convict. Jurors are aware of the huge sentences that result from conviction. Attacks on a turncoat's credibility require defense counsel to inform the jury that the witness' deal with the government was designed to avoid the huge penalties faced by himself and those on trial. See, e.g., Trial Transcript of United States v. Jose P. Molina and Carlos Castro, at 226 (May 2, 1995)("Q: You were advised by a judge when you pled guilty that you were looking at 50 years to life, correct? SERRANO: Correct"). This phenomenon of self-defeating overly-harsh sentences probably explains the jury's refusal to convict Castro and its lack of agreement as to Molina's guilt of most of the crimes for which he was being tried. The public apparently supports sentences less severe than those mandated by the Guidelines in cases such as this one. See U.S. Sentencing Commission, Research Bulletin -- Just Punishment: Public Perceptions and the Federal Sentencing Guidelines 7-8 (March 1997).
As required by the Sentencing Guidelines interpreted by the sentencing court, Molina was sentenced to 78 months imprisonment -- in the middle of the Guideline range, but still a full 18 months more than the gun-wielding, but cooperating Serrano. The court of appeals remanded with directions that under the Guidelines the sentencing court must apply an additional six levels to Molina. United States v. Molina, 106 F.3d 1118, 1124 (2d Cir. 1997). Molina is in the lowest criminal history category. He must, therefore, be sentenced to somewhere ...