months in prison. There are no appropriate grounds for downward departure. Molina is sentenced to 135 months in prison.
Molina made two mistakes. The first was entering into a conspiracy to rob an armored truck and acting to carry out the plan. His second mistake was in seeking a trial -- his Constitutional right -- rather than in quickly working out a plea deal with the government. The result is that Molina, although no more culpable than any of his co-defendants, more apt to be rehabilitated, and more likely to be harmed and preyed upon in prison, will languish under a sentence much longer than that of all but one of his confederates. His two year-old son will spend more than a decade of his childhood without his father. This is what the Guidelines as interpreted by the courts require.
Sentences are now determined primarily by the discretion of the prosecution and the mechanics of the Guidelines. See, e.g., United States v. Roberts, 726 F. Supp. 1359, 1364-67 (D.D.C.1989) (Guidelines unconstitutional on due process grounds based upon transfer of unreviewable discretion to prosecutor), rev'd sub nom., United States v. Doe, 290 U.S. App. D.C. 65, 934 F.2d 353 (D.C.Cir.1991); see also, e.g., Mary Pat Flaherty and Joan Biskupic, Prosecutors Can Stack the Deck: Sentencing Powers Shift From Judges, Wash. Post, Oct. 7, 1996, at A1 (quoting Judge Richard P. Conaboy, Sentencing Commission Chairman, "'almost everyone but the prosecutors agree that the system as it's presently operated gives enormous power to the prosecutor and almost a control over the sentencing process'"); William J. Powell & Michael T. Cimino, Prosecutorial Discretion Under the Federal Sentencing Guidelines: Is the Fox Guarding the Henhouse? 97 W.Va.L.Rev. 373 (1995). The role of the court acting for the public and fitting the punishment to the individual crime and the criminal is almost negated. "As we have come to learn, the Guidelines are rigid in formulation and, thus, often produce harsh results that are patently unfair because they fail to take account of individual circumstances that might militate in favor of a properly 'tailored' sentence." United States v. Harrington, 292 U.S. App. D.C. 90, 947 F.2d 956, 964 (D.C.Cir.1991) (Edwards, J., concurring); Charles J. Ogletree, Jr., The Death of Discretion? Reflections on the Federal Sentencing Guidelines, 101 HARV.L.REV. 1938, 1953-54 (1988) (Guidelines' failure to allow adequate consideration of offender characteristics).
The all-too-familiar harshness required by rigid federal Guidelines, the case law interpreting them and the depredations they wreak upon individual defendants and their families calls to mind the rigid and cruel innkeeper, Procrustes, encountered by Theseus on his journey to Athens. Rather than providing visitors to his inn with appropriate beds, Procrustes is said to have placed every visitor upon an iron couch, stretching those who were too short and lopping-off as much as was necessary from those who were too long in order to make one bed fit all.
Theseus killed the evil Procrustes. Procrustean Guidelines are not so easily dealt with. There are now only dim portents of a more balanced scheme in the offing. See Koon v. United States, 135 L. Ed. 2d 392, 116 S. Ct. 2035, 2046-47 (1996) (decisions by courts exercising "traditional sentencing discretion" to be reviewed under "abuse of discretion" standard).
Even though Congress specified that a purpose of the Sentencing Commission was to establish policies and practices that "avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct," 28 U.S.C. § 991(b)(1)(B) (emphasis added), the case law rejects equalization or rectification of sentence disparity among co-defendants as a basis for departure. See United States v. Joyner, 924 F.2d 454, 461 (2d Cir.1991); United States v. Alba, 933 F.2d 1117, 1123 (2d Cir. 1991); United States v. DeRiggi, 45 F.3d 713, 717 (2d Cir.1995) (district court not permitted to "rectify" sentencing disparities between co-defendants).
Defendant is sentenced to the minimum under the Guideline range -- 135 months in prison.
Santiago 408 months in prison
Molina 135 months in prison
Serrano 60 months in prison
Castro 0 months in prison
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