fraud conviction pursuant to § 4A1.1(b). Two additional points are
added because Garcia was on parole when the instant offense was committed.
See U.S.S.G. § 4A1.1(d). As a result, Garcia has a total of
seven criminal history points, which translates into a Criminal History
Category of IV.
The applicable Guideline range for a defendant with a total offense
level of 21 and a Criminal History Category of IV is 57 to 71 months.
Counsel for Garcia has argued that Garcia should be sentenced as though
he were being sentenced at the same time as he was sentenced on the
passport fraud charges as a result of the government's delay in
prosecution. See. e.g., United States v. O'Hagan, 139 F.3d 641, 656-58
(8th Cir. 1998) (affirming downward departure for delay in prosecution);
United States v. Sanchez-Rodriguez, 161 F.3d 556, 563-64 (9th Cir. 1998)
(same); United States v. Saldana, 109 F.3d 100, 104 (1st Cir. 1997)
(departure appropriate for preindictment delay, even if unintentional, if
it produces an unfair or unusual sentencing result); United States v.
Martinez, 77 F.3d 332, 336-37 (9th Cir. 1996) (departure available where
second indictment for groupable offenses was delayed); United States v.
Blackwell, 49 F.3d 1232, 1241-42 (7th Cir. 1995) (authorizing downward
departure to achieve the effect of concurrency with a fully discharged
In order to do so, the Court must take account of two factors that
enhanced Garcia's recommended Guideline range due to the delay. First,
the two criminal history points added for the passport fraud charges
would not have applied if Garcia had been sentenced for both offenses at
once, which would have reduced Garcia's Criminal History Category to
III.*fn1 The applicable Guideline range for a defendant with an offense
level of 21 and a Criminal History Category of III is 46-57 months.
Due to the delay in prosecution, Garcia has already completed his
sentence for passport fraud, and therefore cannot receive credit for
those nine months, as he would have if sentenced on both offenses at the
same time. In order to alleviate the result of the delay, Garcia's
sentence under the already adjusted Guidelines range should be reduced by
nine months. See, e.g., United States v. Londono-Jimenez, No. 99 CR.
81-01 (RWS), 2000 WL 1593381, *4 (S.D.N.Y. Oct. 25, 2000) (noting that
the Second Circuit has not ruled on whether a downward departure may be
granted based on a lost opportunity to serve concurrent sentences,
but finding that delay in indictment that "create(d] an unwarranted
disparity in the sentence" was out of the heartland and therefore
justified departure pursuant to Guidelines § 5K2.0). Cf. United
States v. Montez-Gaviria, 163 F.3d 697, 701 (2d Cir. 1998) (where
defendant was detained by the state during delay in transfer to federal
custody, "nothing in the Sentencing Guidelines precludes the district
court from departing downward under § 5K2.0 on the basis of (the
defendant's] uncredited time served in state custody"); United States v.
Ogbondah, 16 F.3d 498, 501 (2d Cir. 1994) (remanding to district court
because departure on the grounds of uncredited incarceration due to a
bureaucratic confusion was within sentencing court's authority).
A sentence at the lowest end of the applicable Guideline range, 46
months, subtracting the nine "lost" months would result in a 35-month
In order to sentence him as though he were being sentenced for this
offense and the passport fraud at the same time, Garcia is hereby
sentenced to 35 months of incarceration, to be followed by a three-year
term of supervised release pursuant to 18 U.S.C. § 3583 (b)(2) and
Guidelines § 5D1.1(a). Supervision shall be in the district of
Garcia shall observe all mandatory and standard supervised release
conditions, including that he shall not: (1) commit another federal,
state or local crime; (2) illegally possess a controlled substance; or
(3) possess a firearm or destructive device. As the PSR reflects that
Garcia poses a low risk of substance abuse, the drug testing requirements
of the Violent Crime Control and Law Enforcement Act of 1994 are waived.
In addition, the following special conditions shall apply: (1) Garcia
shall not illegally reenter the United States during the period of
supervised release; and (2) Garcia shall comply with the directives of
the Immigration and Naturalization Service and the Immigration Laws.
Garcia shall report to the nearest Probation Office within 72 hours of
release from custody.
In light of Garcia's inability to pay, no fine shall be imposed.
However, Garcia shall pay the mandatory $100 fine pursuant to
18 U.S.C. § 3013, which is due immediately.
It is so ordered.