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UNITED STATES v. FLOWERS

October 28, 1997

UNITED STATES OF AMERICA against REKEYA FLOWERS, Defendant


The opinion of the court was delivered by: WEINSTEIN

 WEINSTEIN, Senior District Court Judge

 I. Introduction

 II. Facts

 
A. Defendant's Background and Individual Circumstances
 
B. Offense
 
C. Procedural History

 III. Law

 
A. History and Use of Deferred Prosecution
 
1. New York State's Adjournment in Contemplation of Dismissal
 
2. Federal System's "Brooklyn Plan"
 
3. Goals and Benefits of Deferred Prosecution
 
B. Pre-Sentence Rehabilitation as a Grounds for Departure Under the Guidelines
 
C. Delay of Sentencing Pursuant to Federal Rule of Criminal Procedure 32
 
1. Text and History of Federal Rule of Criminal Procedure 32
 
2. Case Law Interpretation of Federal Rule of Criminal Procedure 32
 
D. One Time Sentencing Under Federal Rule of Criminal Procedure 35

 IV. Application of Law to Facts

 V. Conclusion

 I. Introduction

 The question posed as one of first impression is whether under the Guidelines the court may defer sentence to assure itself that defendant has been rehabilitated. The answer is yes. Defendant's request for adjournment of sentencing is granted. The delay is intended to allow the defendant further time to demonstrate rehabilitation prior to imposition of sentence. Sentencing is deferred for one year. In the interim, defendant will remain under the close supervision of the court's Pre-Trial Services Agency.

 II. Facts

 A. Defendant's Background and Individual Circumstances

 Defendant, Rekeya Flowers, is a twenty-one year old African-American woman. She is slight in build, shy and timid in demeanor. Born in Brooklyn, she was the youngest of her parents' four children. When she was two her father, an alcoholic, abandoned the family. Her mother, who worked as a repair dispatch clerk for a local telephone company, was left to raise the family on her own.

 Ms. Flowers is also a single mother. She became pregnant and gave birth while a teenager in school. Defendant and her four year old daughter live in defendant's mother's home--a two-bedroom apartment in the East New York section of Brooklyn.

 While a mother, Ms. Flowers managed to graduate from high school and complete some courses at college. She left college when offered a full-time job. The job did not last long. Until recently, defendant worked at many short-term, low-paying positions with little chance for advancement. In May of 1997 she obtained employment as a temporary worker with a reputable organization making better wages than she ever has. That job promises to turn into a well-paid permanent position with the opportunity for advancement.

 The father of defendant's child is also only twenty-one years old. It is said that he is not mature enough to care for his daughter. Employed as a temporary clerical worker, he does not contribute financial support. His interactions with his daughter involve occasional visits and holiday gifts.

 The child is friendly, bright, inquisitive, healthy, and well-cared for. The family agrees that defendant, the child's primary care-giver, is a good mother.

 B. Offense

 On November 2, 1996, at a time when defendant was moving from one low paying job to the next, she agreed to act as a drug courier in exchange for money. A friend of a friend, a man by the name of "Phillip," asked defendant to travel to Barbados to bring back some drugs. She told him she would. Provided with an airline ticket and money, defendant was taken by Phillip to Kennedy International Airport. Before arriving at the airport, though, Phillip stopped along the way to pick up another woman in Queens. That woman was Dawn White. Ms. White, it was explained to Ms. Flowers, would also be acting as a drug courier for Phillip.

 Ms. White and Ms. Flowers, who had never met before, were instructed to travel to Barbados together and stay in the same hotel room. They did. After several days the two women were provided with luggage to take back to the United States for Phillip. In the luggage were hand lotion and shampoo containers filled with cocaine. Ms. Flowers knew that the narcotics were in her suitcase. She was told to hand the luggage off to an unidentified person once she got back to Kennedy Airport.

 Upon arriving back in the states, the luggage was checked as part of a routine Customs examination. The narcotics were discovered. The total weight of the cocaine was 3.77 kilograms. It was between 70 and 72 % pure. Defendant Flowers and her companion, Ms. White, were arrested and indicted.

 This is defendant's first conviction--she has no prior criminal history. She is not a drug user. She does not drink. While under the supervision of the Pre-Trial Services Agency she has complied with all rules, regulations, and conditions.

 C. Procedural History

 On May 2, 1997 defendant pled guilty before the Magistrate Judge to one count of conspiring to import, distribute, and possess with intent to distribute cocaine in violation of sections 952(a), 960(b)(3), 841(b)(1)(C), and 846 of Title 21 of the United States Code.

 When in the courtroom defendant's demeanor has been appropriate. She is extremely nervous and soft-spoken. When addressing the court, defendant is hesitant and thoughtful in her responses. She appears to be somewhat naive, a person open to suggestion.

 On September 18, 1997 defendant, accompanied by her attorney, appeared for sentencing. Because of the amount of drugs involved, even after a reduction in the guidelines offense level for acceptance of responsibility, minimal participation, and application of the "safety valve" provision, defendant is subject to a total offense level of twenty-one, with a prison sentence of between thirty-seven and forty-six months, plus fines, special assessments, and a long period of supervised release.

 Such a lengthy prison term would separate defendant from her daughter during some of the most important years of the child's life. Rehabilitation seems to be well under way. Further time to determine its extent is required before deciding on whether a downward departure to a lesser term of imprisonment or to probation with conditions is appropriate.

 III. Law

 Adjournment of sentence is permitted. Deferring final adjudication in a criminal proceeding to allow a defendant time needed to improve her circumstances is not new to the law. Reasonable delays may help ensure that the sentence fits both the crime and the circumstances of the defendant and her family.

 A. History and Use of Deferred Prosecution

 In an effort to protect the public by effectively preventing crime, justly dispensing punishment, and successfully rehabilitating those who have committed illegal acts, innovative alternative sentencing plans have been developed in many courts across the country. See ABA Standards for Criminal Justice Sentencing xix (3rd ed. 1994)(encouraging the use of "alternative sanctions" instead of "total confinement in prisons and jails or probation" to "create criminal justice systems that are more flexible, responsive, and effective"); Andrew R. Klein, Alternative Sentencing: A Practitioner's Guide 87-136 (examples of alternative sentencing in a wide range of cases); cf. Arthur W. Campbell, Law of Sentencing 40 (2d ed.1992)("many citizens [wrongly believe] a criminal sentence means simply "punishment" or at least incarceration"); Julian V. Roberts, American Attitudes About Punishment: Myth and Reality, in Sentencing Reform in Overcrowded Times 250, 251 (Michael Tonry & Kathleen Hatlestad ed., 1997)(same). A number of these innovations have been developed by federal courts to avoid unnecessarily draconian prison sentences under the guidelines. Cf. Molly Treadway Johnson & Scott A. Gilbert, The U.S. Sentencing Guidelines: Results of the Federal Judicial Center's 1996 Survey, Report to the Committee on Criminal Law of the Judicial Conference of the United States 15 (Federal Judicial Center ed., 1997)(many judges and probation officers believe that alternatives to incarceration should be used more often under the guidelines); Nicholas R. Turner, et al., The Cost of Avoiding Injustice by Guideline Circumvention, 9 Fed. Sent. Rep. 298 (May/June 1997)(manipulation of guidelines in order to avoid injustice at sentencing).

 While probation was the "original," and probably is the most often used form of "alternative" sentencing, Andrew R. Klein, Alternative Sentencing 61 (1988), house arrest and electronic monitoring are now often imposed in lieu of incarceration. See U.S.S.G. § 5F1.2; see also Steven J. Rackmill, An Analysis of Home Confinement as a Sanction, in Criminal Justice: Concepts and Issues 229, 229-239 (Chris W. Eskridge, ed., 2d ed. 1997)(discussion of use of home confinement and electronic monitoring); Paul J. Hofer & Barbara S. Meierhoefer, Home Confinement: An Evolving Sanction in the Federal Criminal Justice System (Federal Judicial Center ed., 1987)(home confinement as an alternative to traditional imprisonment). Terms of community service are also increasingly being imposed by sentencing judges. See U.S.S.G. § 5F1.3; see also Malcolm M. Feeley, Richard Berk, and Alec Campbell, Between Two Extremes: An Examination of the Effectiveness of Community Service Orders and Their Implications for the United States Sentencing Guidelines, 66 S. Cal. L. Rev. 155 (1992). Military-type "shock incarceration" boot camps are utilized to sharply reduce prison terms. See U.S.S.G. § 5F1.7; see also Doris Layton MacKenzie, Results of a Multistate Study of Boot Camp Prisons, in Criminal Justice: Concepts and Issues, 240, 240-247 (1997).

 Another innovation known as pre-trial diversion or deferred prosecution, has also become popular in recent decades, though prosecutors have informally and effectively utilized this technique for many years. See Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 13.6, at 217 (1984)("For years, individual prosecutors have in a very informal . . . way permitted diversion . . . agreeing not to proceed with prosecution of a defendant if he in return makes restitution to the victim or does some other act."). This alternative does not involve actual conviction and sentencing but is a middle ground between formal adjudication and outright dismissal of a charge. Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 13.1, at 158-59 (1984). The plan diverts defendants away from the criminal justice system, providing them with the opportunity to have their case dismissed. See Note, Pretrial Diversion from the Criminal Process, 83 Yale L.Rev. 827 (1974). There is, however, a price for the dismissal, a price that differs from program to program, but is far less than a conviction, a criminal record, and a lengthy prison term. Generally it involves a defendant rehabilitating herself by meeting a series of conditions and maintaining a clean record for a substantial period of time. See Note, Pretrial Diversion from the Criminal Process, 83 Yale L.Rev. 827 (1974); see also Debra T. Landis, Pretrial Diversion: Statute or Court Rule ...


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