the Court would have had extremely broad discretion under the
liberating effect of a § 5K.1.1 letter. On the facts of this case
it would seem that some, but not all, of the ramifications of an
aborted cooperation agreement should be endured by the Defendant
who has committed a subsequent crime.
The PSR reflects an additional six Offense Levels in Count Two
for related conduct, all derived from Defendant's own statements
to the Government. (Offense Level of 38 instead of 32; see ¶¶ 17
and 31 of the PSR).*fn14 He has a Criminal History Category of
II instead of I — again, all out of his own mouth (See ¶ 65 of
the PSR). Because he has a Criminal History Category of II, he
doesn't qualify for a "safety valve" two point decrease in
Loss of the benefit of the § 5K1.1 letter strips the Defendant
of any mitigating considerations before this Court on Count One
with an Offense Level of 32. The additional consequences of a six
level increase in the Offense Level, a Criminal History Category
of II, no "safety valve" Offense Level decrease, under the
totality of the circumstances, would seem to be beyond the
heartland of what Congress considered.
The Defendant's crime before this Court is contained in Count
One; the remaining Counts are before the Court because of the
Government's cooperator's policy: Count Two has allegedly already
been addressed by another court in the Eastern District of New
York and is therefore before me again because of prosecutorial
policy, not the need to hold the Defendant accountable for it. It
adds six levels to his Offense Level through relevant conduct
considerations. Accepting Mr. Seidler's representations to the
Court about the extent of the Defendant's cooperation in the
sealed proceedings, representations that have not been challenged
by the Government, The Court finds that this six level increase,
on the totality of the facts of this case, is unwarranted.
Accordingly, while the Court intends to accept and adopt the
Offense Level of 35, it will consider sentencing him in the
guideline range of an Offense Level of 29 for Counts One and Two.
An Offense Level of 29 would result if the Court does not add on
the six level increase for relevant conduct for Count Two.
Counts Three and Four have not been addressed by another
court.*fn15 They result in his Criminal History Category of II
and in the loss of the "safety valve" Offense Level decrease.
They do not, in and of themselves, add to the Defendant's Offense
Level. To accept the Criminal History Category of II and the loss
of the "safety valve" decrease is to hold the Defendant
accountable for his self-confessed crimes in Counts Three and
Four. Accordingly, the Court expects to adopt the Criminal
History Category of II at the time of sentencing.
D. Family Circumstances Departure
The Court has also reviewed the submissions from the Defendant
seeking a downward departure for extraordinary family
circumstances.*fn16 The court is aware of its authority to
depart in appropriate circumstances: Koon v. U.S., 518 U.S. 81,
116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); United States v.
Galante, 111 F.3d
1029 (1997). It is a stark fact of the criminal justice system
that, in many cases, the most troublesome aspect of the case is
that the just and deserved punishment of the defendant will often
be felt just as deeply by his family members. The harsh impact on
innocent family members is, however, the inevitable result of
imprisonment for defendants with families. And it is an impact
that Congress is apparently willing to impose with its family
impact heartland of the Sentencing Guidelines.
As just stated, the Court is aware of the broad discretion of
sentencing judges recognized by the Second Circuit in United
States v. Galante, which on its facts, would seem to authorize a
general exclusion from imprisonment wherever a convicted criminal
is nevertheless a responsible parent or family member. A
balancing of social considerations might indeed suggest that this
is the better public policy, but it is, nevertheless, in direct
contravention to the mandates of the Sentencing Guidelines, as
recognized by Judge Kearse in her dissent in that case.
On these facts, there is no justifiable basis to depart for
family impact considerations.
The Court finds that Defendant is to be sentenced pursuant to
21 U.S.C. § 841(b)(1)(C) and is thereby subject to its
The Court also finds that a downward departure may be warranted
under U.S.S.G. § 5K2.0, due to the unique conflation of
circumstances caused by the interplay between the instant case
and a 1993 case in the EDNY.
The sentencing of the Defendant is scheduled for December 13,