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UNITED STATES v. GIGANTE

December 18, 1997

UNITED STATES OF AMERICA against VINCENT GIGANTE, Defendant


The opinion of the court was delivered by: WEINSTEIN

 WEINSTEIN, Senior District Judge

 I. Introduction

 II. Provisional Sentence vs. Guidelines Sentence

 III. Presentence Recommendations

 A. Department of Probation

 
1. Applicable Guidelines Range for Incarceration
 
2. Fines and Cost of Imprisonment
 
3. Restitution
 
4. Special Assessment
 
5. Post-Incarceration Supervised Release

 B. Prosecution

 C. Defendant

 IV. General Sentencing Considerations

 V. Departures Under Guidelines

 VI. Conclusion

 Vincent Gigante has been convicted after a jury trial of five criminal counts: racketeering (RICO), 18 U.S.C. § 1962(c), racketeering conspiracy, 18 U.S.C. § 1962(d), extortion conspiracy, 18 U.S.C. § 1951(a), labor payoff conspiracy, 18 U.S.C. § 371, and conspiring to murder in aid of racketeering, 18 U.S.C. § 1959(a)(5). A motion for a new trial has been denied. United States v. Gigante, 982 F. Supp. 140, 1997 U.S. Dist. LEXIS 18635, 1997 WL 677083 (E.D.N.Y. 1997). Defendant is competent to be sentenced. United States v. Gigante, 996 F. Supp. 194 (E.D.N.Y. 1997).

 For reasons indicated below, defendant is sentenced to twelve years imprisonment, a fine of $ 1,250,000, a special assessment of $ 250, and five years of supervised release following imprisonment.

 II. Provisional Sentence vs. Guidelines Sentence

 Section 4244 of the United States Code provides for provisional sentencing of a competent defendant who is "presently suffering from a mental disease or defect" and who "should, in lieu of being sentenced to imprisonment, be committed to a suitable facility for care and treatment." 18 U.S.C. § 4244(d). Provisional sentences are for "the maximum term authorized by law." 18 U.S.C. § 4244 (d). "Maximum term" in this context has been interpreted to mean the statutory maximum and not the maximum sentence under the Guidelines. See, e.g, United States v. Moses, 106 F.3d 1273, 1275 n.1 (6th Cir. 1997) ("'the maximum term authorized by the law' refers to the statutory maximum for the offense, not the maximum sentence allowed by the Sentencing Guidelines"). The maximum concurrent term is life imprisonment. The maximum consecutive term is two life sentences plus thirty-five years incarceration.

 Provisional sentences are not appropriate in every case involving defendants who appear to be suffering from a mental defect. "Congress obviously envisioned the possibility that a defendant might be found to be suffering from mental defect or disease but that it would be unnecessary to commit that person for treatment in lieu of imprisonment." United States v. Buker, 902 F.2d 769, 770 (9th Cir. 1990). For defendants who may suffer from some degree of mental illness but for whom traditional incarceration is appropriate, a court may recommend that the defendant be housed at a particular correctional facility, one that offers appropriate health services, without imposing a provisional sentence. Id.

 Appropriate Bureau of Prisons' medical facilities can provide adequate medical treatment for defendant. According to David Good, Chief Health Programs Branch National Health Systems Administrator of the Federal Bureau of Prisons, the Bureau has "six in-patient Medical Referral Centers that have approximately 750 in-patient/chronic care beds which address the spectrum of inmate health care needs consistent with the community standard of medical care" and is able to "care for patients with dementia, Alzheimer's disease, and cardio-vascular disease." (Letter of David Good of Dec. 15, 1997, at 1-2.)

 Defendant has been found to be a malingerer whose claimed mental problems were exaggerated. See United States v. Gigante, 996 F. Supp. 194 (E.D.N.Y. Dec. 15, 1997)(Weinstein, J.). He does have heart problems, but they have been treated appropriately and he is in a stable condition. Despite contentions of the defense that he probably could not live through the tensions of a trial, defendant has survived without discernable physical deterioration.

 Under these circumstances, a sentence pursuant to the Guidelines is appropriate. The interests meant to be served by rendering a provisional sentence--protection of legitimately mentally ill prisoners, protection of other inmates, and humanitarian treatment for the mentally ill--are not involved in this case where mental illness, if any, is slight. See United States v. Abou-Kassem, 78 F.3d 161, 165 (5th Cir.), cert. denied, U.S. , 117 S. Ct. 70, 136 L. Ed. 2d 30 (1996). Defendant poses no immediate danger to himself or others, as demonstrated by his exemplary behavior while housed at the Butner Federal Correctional Institution.

 III. Presentence Recommendations

 A. Department of ...


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