mortally dangerous."); see also, e.g., AIDS in Prisons, N.Y. Times, May
21, 2001, at A16 ("Forcible sex" is "widespread" in prisons, and "[t]he
AIDS rate is seven times higher in state and federal prisons than in the
population as a whole"); Charles Fried, Reflections on Crime and
Punishment, 30 Suffolk U.L.Rev. 681, 682 (1997) ("I am concerned by the
failure of some American prison systems to assure the physical safety of
its inmates and by the widespread regime of intimidation by stronger,
organized inmates against the weaker or less experienced inmates.");
David M. Siegal, Note, Rape in Prison and AIDS: A Challenge for the
Eighth Amendment Framework of Wilson v. Seiter, 44 Stan. L.Rev. 1541,
1545 (1992) ("Rape in prison occurs brutally and inevitably . . .
[o]ften, the younger, smaller, or less streetwise inmates are the
victims."); Martin L. Haines, "Prison Rape Highlights the Need for Better
Prison Administration," 154 N.J.L.J., Dec. 14, 1998, at 23 ("Estimates of
the number of rapes occurring in prisons, countrywide, run as high as
7,000 per day, a figure said to be conservative. . . . Gang rape is
The Supreme Court has acknowledged that extreme vulnerability of
criminal defendants is a factor that was not adequately considered by the
Commission in formulating the Guidelines and is therefore a proper ground
for departure pursuant to section 3553(b) of title 18. See Koon v. United
States, 518 U.S. 81, 111-12, 116 S.Ct. 2035, 2035, 135 L.Ed.2d 392 (1996)
(departure based on "susceptibility to abuse in prison"); Note, A Trial
Judge's First Impression of the Federal Sentencing Guidelines, 52 Alb.
L.Rev. 1, 17 (1988). Accordingly, the Second Circuit has on several
occasions approved sentencing courts' decisions to depart downward from
the applicable Guidelines range where the district judge has observed
that the personal characteristics of the offender make him or her
particularly susceptible to abuse in prison. See, e.g., United States v.
Gonzalez, 945 F.2d 525, 526 (2d Cir. 1991) ("[The defendant's] physical
appearance, insofar as it departs from traditional notions of an
acceptable masculine demeanor, may make him . . . susceptible to
homophobic attacks"); United States v. Lara, 905 F.2d 599, 605 (2d Cir.
1990) (downward departure based on defendant's vulnerability to abuse in
prison due to the fact that the defendant was a "delicate looking young
man with a certain sweetness about him"); United States v. Blarek II,
7 F. Supp.2d 192, 211 (E.D.N.Y. 1998) ("Because these defendants will be
especially vulnerable to abuse in prison given their sexual orientation
as well as their demeanor and build, downward departure is warranted")
(emphasis added); United States v. Delgado, 994 F. Supp. 143, 145
(E.D.N.Y. 1998) ("Defendant's diminutive size, and lachrymose and meek
demeanor will make her life in prison particularly difficult").
c. Family circumstances
A departure is also allowed based upon extraordinary family
circumstances. See United States v. Galante, 111 F.3d 1029 (2d Cir.
1997); United States v. Johnson, 964 F.2d 124 (2d Cir. 1992). The
Guidelines themselves do not encourage departure based upon family ties
and responsibilities. See U.S.S.G. § 5H.1.10 policy statement.
Where, however, the family "factor is present to an exceptional degree or
in some other way makes the case different from the ordinary case where
the factor is present," departure is authorized. Koon v. United States,
518 U.S. 81, 95, 116 S.Ct. 2035, 2045, 135 L.Ed.2d 392 (1996).
IV. Application of Law to Facts
A. Postponing Sentencing to Permit K to Complete S.O.R.S. Program
Comports with the Primary Objectives of Modern Sentencing
Incarceration seems ill suited to facilitate rehabilitation of someone