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 Probation
After a full hearing, the Department of Probation analysis and computations under the Guidelines were found to be essentially correct, except as noted below, for proposed fines.
1. Applicable Guidelines Range for Incarceration
The Presentence Report prepared by the United States Department of Probation indicates a combined total offense level of thirty-eight (38). Criminal history category is characterized as "II," based upon defendant's conviction for conspiring to violate federal narcotics laws in 1958. For that offense defendant was sentenced to seven years incarceration. Based upon these computations, the Guidelines range of imprisonment is between 262 to 327 months. Probation has recommended the maximum, 327 months.
2. Fines and Cost of Imprisonment
Pursuant to Section 5E1.2(a) of the Guidelines, a monetary fine must be imposed unless defendant is able to establish (1) that he is unable to pay a fine and (2) that he is not likely to become able to pay any fine. Probation recommended a fine of $ 40,250,000 predicated upon assumptions not supported by the record. Based upon required modification of the Presentence Report, the maximum fine is $ 250,000 for each crime. 18 U.S.C. § 3571(b)(3); see also United States v. Sessa, 821 F. Supp. 870, 874 (E.D.N.Y. 1993), aff'd, 32 F.3d 704 (2d Cir. 1994). Permissible statutory modifications are not of appreciable significance. 18 U.S.C. § 3571(d).
Amendments to the Guidelines, effective November 1, 1997, deny the court the power to impose costs of incarceration upon a defendant. U.S.S.G § 5E1.2(d)(7).
The Sentencing Guidelines state that "the court shall enter a restitution order . . . ." U.S.S.G. § 5E1.1 (a). Probation is not recommending restitution since no third party has sought compensation.
4. Special Assessment
Special assessments "must be imposed on a convicted defendant in the amount prescribed by statute." U.S.S.C. § 5E1.3. Their purpose is the funding of the Crime Victims' Fund. U.S.S.C. § 5E1.3 comment. For each felony count for which defendant has been convicted, $ 50 must be assessed, leading to probation's recommendation of $ 250 in special assessments.
5. Post-Incarceration Supervised Release
A term of supervised release is required to follow imprisonment whenever incarceration is for more than one year. U.S.S.G. § 5D1.1(a). The term of supervised release must be for at least three years, but not more than five years. U.S.S.G. § 5D1.2(a)(1), (2). Cumulation of supervised release terms may be permitted only in rare cases. See United States v. Williams, 65 F.3d 301, 309 (2d Cir. 1995) (imposition of a ten-year period of supervised released based upon two five-year consecutive terms of supervised release). Probation has properly recommended a five-year term of supervised release.
The prosecutor's view of the Guidelines' criteria is generally in accord with those of Probation. Nevertheless, the government argues that defendant should be sentenced with the full weight of the maximum sentence of incarceration permitted by the Guidelines and further moves for an upward departure pursuant to Section 3553(b) of Title 18 of the United States Code and Sections 2B3.2, 4A1.3, 5K2.0, 5K2.7 and 5K2.9 of the Guidelines. Specifically, the government argues that defendant should receive an upward departure for: (1) obstructing justice by feigning mental illness in order to avoid prosecution and sentence; (2) taking part in organized criminal activity; (3) "massive interference with government functions"; and (4) having a criminal history far more heinous than that recognized by the Guidelines.
Such upward departure is not appropriate in view of defendant's physical disabilities and age.
The defendant contends that his criminal history category is I, not II. If accepted, his Guideline imprisonment range would be 210 to 262 months rather than 262 to 327 months. In view of defendant's long serious criminal history -- established by a preponderance of the evidence -- beginning no later than the 1960's, a reduction of his criminal history category would seriously understate his criminality as a gang boss and member of the ruling hierarchy of gang bosses. These criminal activities should be considered in evaluating defendant's criminal history even though they did not result in a conviction. See United States v. Watts, 519 U.S. 148, 117 S. Ct. 633, 136 L. Ed. 2d 554 (1997).
Defendant further seeks a downward departure from the Guidelines based upon defendant's advanced age and physical infirmity. Because he is "a weak, old, and sick man," he seeks an "alternative sentence" of five years probation including "home detention and careful monitoring." Probation would be entirely inappropriate for this major, long-time criminal.
IV. General Sentencing Considerations
Despite the rigidity of the Guidelines, a sentencing court must still independently judge each criminal before it, while fully protecting the community. This is never a completely mechanistic or facile process. At every sentencing, the trial judge must:
struggle with assessing whether an offender is beginning or ending a criminal career, appears to be dangerous or harmless . . . or . . . will not offend again . . . .
Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 Yale L.J. 1681, 1728 (1992); see also, Note, Some Reflections on Seven Lean Years of Guidelines Sentencing, 8 Fed.Sent.Rep. 12, 12 (July/August 1995) (There exists a "duty to provide individualized justice. Every person has a right to be treated as an individual, and to know that he or she has been so treated.").
Defendant was one of the nation's most notorious organized crime figures. He has long been a leader in the world of crime. He early on demonstrated youthful arrogance and a penchant for brazen violence.
By the 1970's, defendant was a Captain in the Genovese Crime Family. He soon rose to Consigliere. By the 1980's he was the behind-the-scenes power in the Genovese Family and in the Mafia generally.
After the 1985 Commission trial and the incarceration of Anthony Salerno (who was the figurehead street boss under Mr. Gigante), defendant publicly assumed the title of official boss of the family. He controlled a sprawling, predatory, illegal economic enterprise that siphoned millions of dollars from legitimate businesses and government through the control of corrupt unions and business leaders and the ominous, persistent threat of force and violence. He was ruthless in discipline of those who stood in his way, while suave and charming with those he loved or needed. He amassed great power and wealth.
Defendant is no longer that maleficent. He is a shadow of his former self -- an old man finally brought to bay in his declining years after decades of vicious criminal tyranny. Familiar words of William Shakespeare are brought to mind:
And one man in his time plays many parts . . .