United States District Court, S.D. New York
January 9, 2004.
UNITED STATES OF AMERICA -against- JUBLEQUIS MATEO, Defendant
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
Defendant Jubelequis Mateo ("Mateo") pled guilty before this Court to
conspiring to distribute heroin. She now moves the Court to adjust
downward the base level offense under the Sentencing Guidelines because
she played only a minor role in the offense. She also moves the Court to
depart downwardly from the otherwise applicable sentencing range because,
among other reasons, she has suffered from harsh pre-sentence confinement
conditions and has extraordinary family circumstances. For the reasons
stated, Mateo's motion is granted in part and denied in part.
Mateo, age 22, came to the United States from the Dominican Republic in
2001, hoping to be able to earn enough money to provide for her daughter
Arianni, whom she left in
the care of her mother (Arianni's grandmother) in the Dominican
Republic. Arianni's father has a long history of physically abusing Mateo
and is no longer involved in Arianni's upbringing.
Mateo found work as a waitress in New Jersey. One night after work, she
attended a party at which she was raped and became pregnant. During this
time, Mateo met a drug supplier who learned that Mateo had financial
problems. Mateo's involvement with this supplier led to the conviction at
issue here. In early 2002, Mateo attempted to broker two large heroin
transactions by providing drug samples on behalf of the supplier to
persons who had called her seeking to buy two kilograms of heroin. In the
first transaction, Mateo arrived with her supplier at the agreed-upon
delivery point, but the buyer declined to meet her. Authorities arrested
Mateo in March 2002, before the second transaction was complete. The
first potential buyer was an confidential government source, the second
an undercover government agent.
Following her arrest, Mateo was first incarcerated at the Metropolitan
Detention Center in Brooklyn (the "MDC"), where she stayed in an "open
unit" with around 100 other inmates. At that time, Mateo was
approximately six weeks pregnant. From then through October 2002, Mateo
received regular pregnancy-related care at the MDC and on occasion at
outside prison. On October 30, 2002, she complained of contractions
and was examined by MDC medical staff, who noted that Mateo showed no
signs of labor and estimated her date of delivery to be around November
25, 2002. She was returned to her housing unit.
At around 3:00 a.m. on November 5, 2002, Mateo awoke with labor pains.
Another inmate, Wendy Castro Fernandez ("Fernandez"), notified the guard
that Mateo was in labor, but he told her that Mateo would have to wait
until 6:00 a.m. for the physician's assistant (the "PA") to arrive.
According to Fernandez, at 6:00 a.m. she again asked the guard for help,
but he told her she would have to wait longer. At around 8:00 a.m., after
the guards had changed shifts, Fernandez alerted the new guard on duty
that Mateo was in labor. The PA on duty appeared sometime between 10:00
a.m. and 11:00 a.m., but left without fully examining Mateo. He
apparently concluded that, since Mateo's due date was not until November
25, she could not have been in labor.
During the balance of day, other inmates alerted the authorities on
Mateo's behalf, but she was not moved out of the open unit until sometime
between 4:00 p.m. and 5:00 p.m., at which point she was transferred to
the medical unit. The PA finally called the emergency service for an
ambulance sometime around 6:30 p.m. when it became apparent that Mateo
to give birth. A team of Emergency Medical Technicians arrived
shortly thereafter and noticed that, even though Mateo was "crowning"
(the baby's head had begun to emerge), she was still wearing her
underwear. Mateo gave birth while laying on an upright stretcher in the
MDC at 6:53 p.m., without the benefit of pain relief or other medication.
Mateo's sister Maritza, who lives in Boston, Masachusetts, now cares for
the child, a boy named Johan.
Maritza's husband objected to her assuming custody of Johan, and he has
since abandoned Maritza. Maritza reports extreme financial, difficulty in
raising Johan alone. Mateo's mother, Josephina Medina ("Medina"), also
reports extreme difficulty in raising Arianni alone in the Dominican
Republic. Medina suffers from high blood pressure and poor vision.
On February 28, 2003, an MDC corrections officer accused Mateo and her
cellmate of smoking in their cells. The women denied the allegation. The
officer threatened to file a report, unless the women would undress in
front of him. They complied. The officer returned the next day, March 1,
and again requested the women undress in front of him. They refused, and
filed a formal complaint against the officer.
Mateo reports being depressed and has seen a prison psychiatrists
several times. Psychiatric records indicate she was seen for symptoms of
post traumatic stress disorder,
anxiety, depression, low self-esteem, insomnia and substance abuse.
Shortly after the sexual harassment incident, Mateo was briefly placed on
A. APPLICABLE GUIDELINES
As a general rule, the Court must use the Sentencing Guidelines Manual
in effect at the date of sentencing. See 18 U.S.C. § 3553(a)(4)
(A) (ii); see also United States Sentencing
Guidelines Manual § 1B1.11 (2002) ("U.S.S.G."). However, "where
application of the Guidelines in effect at sentencing would result in a
more severe sentence than the version in effect at the time of the
commission of the offense," the application of the newer guidelines would
violate the Ex Post Facto Clause of the Constitution. United States
v. Broderson, 67 F.3d 452, 456 (2d Cir. 1995). In such cases, "the
court shall use the Guidelines Manual in effect on the date that the
offense of conviction was committed." U.S.S.G. § 1B1.11(b)(1). "When
an amended version of a guideline represents only a clarification by the
Sentencing Commission of the original version rather than a substantive
change," there is no Ex Post Facto problem and "the amended version is to
be applied." United States v. Gonzalez, 281 F.3d 38, 46 (2d
After the Probation Department prepared its Presentence Investigation
Report, and after the parties had briefed the
issues here, the Sentencing Commission issued emergency revised
guidelines effective October 27, 2003, pursuant to the recently-enacted
PROTECT Act, Pub. L. 108-21, 117 Stat 650 (2003). See 60 Fed.
Reg. 60154 (Oct. 21, 2003). Those revisions might result in a more severe
sentence for Mateo in at least two ways. First, the revisions prohibit
combining so-called "considered" and "unconsidered" factors in awarding
a downward departure based on multiple circumstances. Id. at
60155 (amending § 5K2.0(c)(2)(B)). Mateo has urged the Court to make
just such a multiple circumstances departure. Second, the revision
"further restricts family ties departures by adding an application note
that establishes heightened criteria for departures based on loss of
caretaking or financial support." Id. at 60175 (amending §
5H1.6). Mateo has moved the Court to make a departure based on the fact
that her two young children will be deprived of her financial support and
caretaking. Because the Sentencing Commission has indicated that this
revision establishes "heightened criteria," id.
(emphasis added), the Court concludes that it is not merely a clarifying
amendment and that it would pose an Ex Post Facto problem as applied to
Mateo. Therefore, the Court will apply the 2001 Sentencing Guidelines,
which were in effect at the time of the crimes charged.*fn2
B. MINOR PARTICIPANT ADJUSTMENT
Mateo seeks a two-point downward adjustment as a "minor participant'
under U.S.S.G. § 3B1.2(b), which applies whenever the defendant
proves by a preponderance of the evidence that she is less culpable "as
compared to the average participant in such a crime." United States
v. Carpenter, 252 F.3d 230, 235 (2d Cir. 2001) (quoting United
States v. Rahman, 189 F.3d 88, 159 (2d Cir. 1999)). In a drug
conspiracy case such as this one, the Court must evaluate "the nature of
the defendant's relationship to other participants, the importance of the
defendant's actions to the success of the venture, and the defendant's
awareness of the nature and scope of the criminal enterprise."
United States v. Garcia, 920 F.2d 153, 155 (2d Cir. 1990). This
is a highly fact-specific inquiry in which the "dispositive
consideration" is the defendant's "`culpability in the context of the
facts of the case.'" United States v. Pena, 33 F.3d 2, 3 (2d
Cir. 1994) (quoting Garcia, 920 F.3d at 155).
Mateo characterizes her role as an uninformed intermediary. She had no
control over any aspects of the operation, nor did she manage any other
participants. Her only role was to insulate the supplier from
apprehension, and she knew only one other person involved, the supplier.
The Government responds that Mateo should be considered
a "steerer," or a person who "direct[s] buyers to sellers in
circumstances in which the sellers attempt to conceal themselves from
casual observation." United States v. Colon, 884 F.2d 1550,
1552 (2d Cir. 1989). The Government relies on the holding in
Colon that a "`steerer' cannot be considered a `minimal
participant'" in a typical drug transaction. Id.
The Court agrees that Mateo fits the definition of a "steerer," but the
holding in Colon applies only to the four-level reduction for
"minimal" participation under U.S.S.G. § 3B1.2(a), which is distinct
from, and much more rare than, the two-level reduction for "minor"
participation under § 3B1.2(b). See United States v.
Lopez, 937 F.2d 716, 728 (2d. Cir 1991) ("[T]he difference under the
Guidelines between `minimal' and `minor' is not just semantic; rather,
both are terms of art that result in different adjustments."). The
Colon panel explicitly declined to consider whether the
defendant was a minor participant. Colon. 884 F.2d at 1552. In
Lopez. which the Government also cites, the district court had
awarded a defendant a minor participation adjustment under circumstances
less persuasive than the present case. That defendant "knew of the plan
to sell 50 kilograms of cocaine; he traveled from Miami to New York to
help with the transaction; and . . . expected a large payment for his
services." See Lopez, 937 F.3d at 727.
In determining whether Mateo's role was minor, the Court finds
particular guidance from Judge Sheindlin's opinion in United States
v. Sanchez, which awarded a minor participant adjustment to a
"middleman" who brokered a 12-kilogram cocaine deal for a $6,000 fee.
925 F. Supp. 1004, 1010-14 (S.D.N.Y.), aff'd, United States v.
Chalarca, 95 F.3d 239 (2d Cir. 1996). First, regarding the "nature
of the defendant's relationship to other participants," Garcia,
920 F.2d at 155, the Court notes that, just as in Sanchez.
there is no evidence that Mateo had any regular or involved relationship
with the larger drug organization. 925 F. Supp. at 1012. She apparently
had only brief dealings with the one supplier. Second, regarding the
"importance of the defendant's actions to the success of the venture,"
Garcia, 920 F.2d at 155, the Court agrees with Mateo that her
role as an "intermediary" is relatively unimportant. The key players were
the supplier (and his suppliers) and the buyer. Mateo, acting essentially
a shield for the seller, was replaceable. See
Sanchez, 925 F. Supp. at 101.3 (characterizing defendant as
"replaceable"). Third, regarding "the defendant's awareness of the nature
and scope of the criminal enterprise," Garcia, 920 F.2d at 155,
Mateo did not know the ultimate source of the drugs, nor any details
about the operation of the conspiracy. She did not actually handle any
drugs, other than the small samples, nor did she
appear to have any power within the drug conspiracy.
Judge Sheindlin's observations in Sanchez are also
applicable to demonstrate that Matao is less culpable than the average
There are many roles in a conspiracy. A typical
conspiracy involves a supplier, a courier, a
middleman and buyer. If his role must be
typed, Sanchez must be classified as a middleman.
His role was to bring together the buyer and the
seller. . . . The most culpable conspirator is
usually the supplier, the conspirator who controls
large quantities of drugs. The courier also ranks
high on the culpability scale because he or she
carries drugs from place to place and often uses
weapons or other elements of violence. The next
most must be the buyer as he or she ditributes
quantities of drugs to other dealers, thereby
becoming a retail level supplier. In my view, the
least culpable is the facilitator (or those who
assist the deal by acting as driver or lookout). As
a facilitator, Sanchez is by definition less
culpable than the typical offender convicted of
conspiracy to distribute drugs.
925 F. Supp. at 1013 (footnote omitted). The Court concludes that Mateo's
role in the drug conspiracy was "minor" within the meaning of U.S.S.G.
§ 3B1.2(b). See also United States v. Delgado, 994 F. Supp. 143,
144 (E.D.N.Y. 1998) (granting "minimal" role adjustment to courier who
smuggled 700 grams of heroin into the United States from Colombia).
C. PRE-SENTENCE CONFINEMENT CONDITIONS
Whether the conditions under which a defendant is confined prior to
sentencing could serve as permissible grounds for a downward departure
has been a subject of extensive debate and divergence among the courts.
United States v. Carty, 264 F.3d 191, 196 (2d Cir. 2001)
finding no clear consensus among circuit and district courts concerning
"`the propriety of granting a downward departure for conditions of
pretrial confinement'") quoting United States v. Francis,
129 F. Supp.2d 612, 616 (S.D.N.Y. 2001)). In Carty, the Second
Circuit found that "[n]o evidence exists to show that the Sentencing
Commission took the conditions of a pre-sentence detainee's confinement
into account in creating the Guidelines." 264 F.3d at 196. Having
determined that the Guidelines did not categorically proscribe
consideration of this factor, the Circuit court held that "pre-sentence
confinement conditions may be appropriate cases be a permissible basis
for downward departures."*fn3 Id.; see
also United States v. Hernandez-Santiago, 92 F.3d 97,
101 n.2 (2d Cir. 1996); United States v. Bunton, 139 F.3d 718,
725 (9th Cir. 1998).
Other courts that squarely considered the question have held
presentence conditions of confinement to be a factor
unmentioned by the Sentencing Guidelines, and granted downward
departures on this ground upon finding circumstances that took the
case outside the heartland of the applicable guidelines. See
Francis, 129 F. Supp.2d 612, 614-619 (finding that a
departure was warranted "to acknowldge the qualitatively different,
substandard conditions to which Defendant was subjected for an extended
period" while in custody at a state facility); United States v.
Rodriguez, 213 F. Supp.2d 1298, 1303 (M.D. Ala. 2002) granting a
downward departure based on defendant's rape by a prison guard while in
custody awaiting sentence); United States v. Bakeas,
987 F. Supp. 44, 50 (D. Mass. 1997) "[A] downward departure is called for
when, as here, an unusal factor makes the conditions of confinement
contemplated by the guidelines either impossible to impose or
In a somewhat analogous situation, courts have determined that
potential conditions of confinement that a particular defendant is likely
to encounter while in custody after sentencing could constituted
permissible ground to depart under proper circumstances. In Koon v.
United States, 518 U.S. 81 (1996), the Supreme Court held that the
District Court did not abuse its discreation by considering as a
permissible basis for downward departure the defendants' susceptibility
to abuse in prison by reason of their status as police officers and the
extraordinary notoriety and national news coverage their crimes
had generated. See id. at 111-12; see
also United States v. Lara, 905 F.2d 599, 601 (2d
Cir. 1990) (upholding a downward departure grounded on defendant's
potential for victimization in prison due to his diminutive size,
immature appearance and bisexual orientation); but see
1991 U.S.S.G App. C, Amdt. 386 (effective Nov. 1, 1991) (amending the
1989 Guidelines to make defendant's physical appearance, including
physique, a discouraged factor); see also United States v.
Wilke, 156 F.3d 749, 750 (7th Cir. 1998) (nothing that the
district court could consider the defendant's extreme vulnerability
to abuse in prison in determining whether a downward departure
was warranted, though cautioning that this consideration should
be "reserved for extraordinary situations"); United States v.
Maddox, 48 F.3d 791-794 (4th Cir. 1995); United States
v. Smith, 27 F.3d 649, 653 (D.C. Cir. 1994); United States v.
Ruff, 998 F. Supp. 1351, 1354-55 (M.D. Ala. 1998).
In recognizing the offender's pre- or post-sentence conditions
of confinement as permissible grounds to warrant downward departures, the
courts have granted relief generally where the condtions in question are
extreme to an exceptional degree and their severity falls upon the
defendant in some highly unique or disproportionate manner.
Rodriguez, 213 F. Supp.2d at 1303 noting that "to fail to take this
rape into account in [defendant's] sentence would mete out a
disproportionate punishment to her. . . ."); Francis, 129 Supp.2d
at 619 (finding that defendant had suffered "extraordinary stress and
fear" under conditions at a state prison qualitatively different from
those experienced by detainees of federal detention facilities).
At bottom, however, what these cases have in common, though not
explicitly articulated, is the rationale uniformly manifest in every
justifiable departure from the sentencing norm embodied in the heartland
of typical cases: the philosophical underpinnings of sentencing left
unaltered by the Guidelines. In Koon, the Supreme Court
instructed the courts to consider the "structure and theory of both
relevant individual guidelines and the Guidelines taken as a whole.'"
518 U.S. at 96 (quoting United States v. Rivera,
994 F.2d 942, 940 (1st Cir. 1993)). A point of departure for the
inquiry as regards any "particular sentence to be imposed" is §
3553(a)(2) of the Sentencing Reform Act of 1984 (the "Act"), which
directs the courts to consider:
(2) the need for the sentence imposed
(a) to reflect the seriousness of the offense,
to promote respect for the law, and to
provide just punishment for the offense;
(b) to afford adequate deterrence to criminal
(c) to protect the public from further crimes
of the defendant; and
(d) to provide the defendant with needed
educational or vocational training, medical
care, or other correctional treatment in
the most effective manner.
18 U.S.C. § 3353 (a)(2).
In fashioning the Sentencing Guidelines Congress authorized to achieve
the goals the Act contemplates greater honesty, uniformity,
proportionality and equity in sentencing among particular offenses and
offenders the United States Sentencing Commission carved out a
large "heartland" of typical cases as to which the sentence imposed must
fall within the range prescribed by the particular guideline application.
See Koon, 518 U.S. at 92. But Congress also
recognized "the wisdom, even the necessity of sentencing procedures that
take into account individual circumstances." Id. Accordingly,
the Act confers upon the district courts the latitude to depart from the
applicable guideline range "if the court finds that there exists an
aggravating or mitigating circumstance of a kind, or to a degree, not
adequately taken into consideration by the Sentencing Commission in
formulating the guidelines that should result in a sentence different
from that described." 18 U.S.C. § 3553 (b). To this end, departure is
warranted in what the Sentencing Commission defined as the "atypical
case, one to which a particular guideline
Linguistically applies but where conduct significantly differs from
the norm. . . ." 2002 U.S.S.G., Ch. 1 Pt. A, p.6.
The Court's discretion to depart from the prescribed guidelines range
in exceptional circumstances gives expression to a core principal at the
heart of sentencing from time immemorial, a safety valve which recognizes
that in some respect every sentence must take differential account of
"individual circumstances" and, to this end, gives the judge sufficient
discretion to do so. Koon, 518 U.S. at 92. Because, considered
person-by-person, those particularities are so many and so varied, and
because the statutorily declared aims of sentencing also embody multiple
variables, not every sentence can be predetermined by unremitting
application of the factors and the calculus of the specified guidelines
analysis, however prescient and wise the Sentencing Commission may be.
See 2002 U.S.S.G., Ch. 1 Pt. A, p.6 ("[I]t is difficult to
prescribe a single set of guidelines that encompasses the vast range of
human conduct potentially relevant to a sentencing decision. "). Were
sentences to be mechanically fashioned with such Procrustean rigidity,
the inevitable result in many cases would be harshly inequitable
penalties that would fall with disproportionate weight on the particular
defendant, to that extent not fittingly serving the purposes of
sentencing in the case. It is precisely this
potential inequity that the departure exception seeks to avert.
The individual treatment that the court's discretion to depart permits
where appropriate thus reflects another inherent premise: that there is
more to the concept of just punishment and deterrence of the particular
individual than the temporal and physical hardships imposed by a sentence
as measured by the length of time in prison pre-specified by a guidelines
range. In fact, beyond the offender's actual deprivation of liberty when
incarcerated, a host of other penalties and burdens always attend
criminal conviction, to name a few: losses of family life, of
socioeconomic status, of employment and career opportunities; diminution
of certain civil rights and entitlements; and countless humiliations and
indignities commonly associated with living in confinement.
Undoubtedly, there is some leveling ground where the force of
incarceration works equal and reasonably foreseeable deprivations on all
offenders. See, e.g., Koon, 518 U.S. at
110-11 (noting that: "[i]t is to be expected" that a public official
convicted of a crime will suffer loss of job and future career
opportunities). There are also instances, however, in which, by reason of
individual circumstances, some of the stings and hardships that
imprisonment implies come to bear extraordinarily more heavily on some
on others. Particularities affecting some individuals may cause some of
the adjunct losses that follow criminal conviction to engender what
amounts to materially enhanced deprivations and suffering that, for some
offenders more than others, may operate as functional equivalents of
punishment by time in prison and that may also consequently produce other
substantially greater adverse social effects.
For instance, by some scale of reckoning of felt punishment and
collateral consequences an assessment often more intuited by
empathy and moral ethos than methodically calculable the pain and
suffering endured during twelve months in custody by a mother who is the
sole provider of five dependent children and who, in her first
transgression, stole to feed them, may fairly be regarded as
qualitatively greater than that felt during an equal prison term by a
career offender with no family ties for whom jail effectively serves as a
primary residence. See, e.g., United States v. Johnson,
964 F.2d 124, 126-30 (2d Cir. 1992) (holding that where defendant's parental
responsibilities were extraordinary and incarceration would "wreak
extraordinary destruction" on her four young dependents, downward
departure to avoid imprisonment was warranted); see also United
States v. Milikowsky, 65 F.3d 4, 8 (2d Cir. 1995) ("Among the
permissible justifications for downward departure . . . is the
need, given appropriate circumstances, to reduce the destructive
effects that incarceration of a defendant may have on innocent third
In essence, the court's discretion to depart is a manifestation of the
necessity for a just sentencing scheme to include provisions for that
reasoned intuitive judgment, rather than a hard, deterministic formula,
to govern the rare case. Precisely for this reason the Guidelines "`place
essentially no limit on the number of potential factors that may warrant
a departure.'" Koon, 518 U.S. at 106 (quoting Burns v.
United States, 501 U.S. 129, 136-37 (1991)); see
also 2002 U.S.S.G. Ch. 1 Pt. A, p. 6 (noting that the
Commission "does not intend to limit the kinds of factors, whether or not
mentioned anywhere in the guidelines, that could constitute grounds for
departure in an unusual case").
In a similar vein, inevitably associated with confinement, whether
before or after sentencing, is a substantial amount of privation and
suffering deriving from the rigors of prison life. Within the bounds of
what ordinary custodial conditions encompass is the inmate's endurance of
some degree of known and expected, and even necessary indignities,
humiliations, inadequacies and harsh conditions. Given the character of
the prison population, and the strict regimen and tensions under which it
is housed, the penal
system must accommodate, within fair Limits, tolerance for a normal
level of shortcomings in the quality of certain services, as well the
vulnerability of some individuals to incidental inmate-to-inmate and
guard-to-inmate victimization that is not uncommon in a custodial
environment. The concept of what is "just punishment" thus contemplates a
prospective, empirical assessment, necessarily imprecise, of the
accumulation of reasonably foreseeable, ordinary hardships and suffering
that any given offender is likely to experience in the typical case
during the course of a particular range of imprisonment.
Accordingly, insofar as the incarceration of a particular offender
imposes terms and conditions that expand the reach of consequences
ordinarily associated with confinement substantially beyond the zone of
what is to be reasonably foreseeable and "to be expected," Koon,
518 U.S. at 110, in the typical case, the corresponding sentence is
likely to work excessive hardships and exact a toll of suffering "of
a kind, or to a degree", 18 U.S.C. § 3553(b), that, if not
otherwise mitigated, would inflict upon the particular individual a
magnitude of punishment effectively disproportionate to that meted out to
offenders in the ordinary case. To that extent, that penalty may exceed
what is necessary to serve the prescribed purposes of sentencing.
Under the preceding standards, occasional shoves and knocks arising from
necessary disciplinary encounters may fall within the realm of the
warranted physical contacts an inmate may expect to suffer at the hands
of prison guards during the ordinary course of presentence confinement.
However, a rape is not. Compare United States v. Londono-Jimenez,
No. 99 Cr. 81-01, 2000 WL 1593381, at *6 (S.D.N.Y. Oct. 25, 2000),
Sutton, 973 F. Supp. at 494-95, and United States v. Miranda,
979 F. Supp. 1040, 1044-45 (D.N.J. 1997), with Rodriguez,
213 F. Supp.2d at 1303, and Francis, 129 F. Supp.2d at 619.
Turning to the case at hand, Mateo asserted, among other grounds for
departure, two incidents she experienced at the federal detention
facility while awaiting sentence by this Court: sexual abuse by a prison
guard and the birth of a child without medical attention. At the hearing
the Court conducted to examine these allegations, the Government
stipulated that Mateo did not receive proper medical attention in
connection with Johan's birth. The uncontradicted evidence shows that
Mateo suffered labor pains for over fifteen hours before assistance
arrived, and that for at least thirteen of those hours, she was left in
her cell unit without any medical attention at all. Mateo testified that
she was afraid and in severe pain. An obstetrician-gynaecologist
testified that it is especially important for a woman in labor to be
by professionals who can reassure her and provide her emotional
support. The doctor testified that, under ordinary care, Mateo would have
received pain medication and the necessary emotional support. Mateo's
subsequent psychological history demonstrates that the hours of fear and
pain exacted a harsh toll on her mental well-being. In regard to the
allegations of sexual harassment, the Court credits the testimony of
Mateo and her cellmate that they were subject to the humiliating
experiences of being twice ordered, under threat of penalties, to undress
in front of a male prison guard.
As mentioned, in the typical case some vulnerability by the inmate to
the possibility of ordinary derelictions on the part prison officials is
to be expected as an incidence of the usual hardships associated with
incarceration. In this Court's assessment, however, the presentence
misconduct Mateo endured at the hands of custodial officials is
qualitatively more severe in kind and degree than the prospect of such
experiences reasonably foreseeable in the ordinary case. Mateo could
certainly anticipate occasions in which a prison guard would behave in a
sexually offensive manner through acts of the type that ordinarily occur
in any setting where men and women must interact on a regular basis. But,
objectively, she could not expected to accept that being ordered, more
once, to strip in front of a male guard and placed in fear of
disciplinary consequences if she did not, constitutes an ordinary
incidence of the conditions of custodial life.
Similarly, Mateo could expect that the quality of medical attention
she would receive for her pregnancy and birth of a child during her
incarceration would not equate to the quality of health care she would
receive in private medical facilities outside the prison walls. She could
not anticipate, however, that when the time arrived for her to give
birth, an event the imminence of which was known to prison officials, her
cries and calls for help would be ignored by the custodial officials
placed in charge of her health and safety, that she would be forced to
endure full labor in her cell and halls of the prison where she was
housed, and that she would thus be subjected to the extreme fear of risk
to her life and that of her child. To this extent, the extraordinary
trauma Mateo has already suffered during the time she has served in
custody, the full effects of which can never be comprehensively gauged,
has inflicted forms of pain and suffering that have effectively enhanced,
to a disproportionate degree, the level of punishment contemplated to be
experienced by inmates in the typical case during the period of
incarceration prescribed by the Guidelines for Mateo's offense. The Court
emphasizes that Mateo's experience is uniquely extraordinary, beyond the
heartland of ordinary disparities, thereby justifying departure.
The Court concludes that the combined effects of the two presentence
incidents Mateo experienced support a nine-level downward departure.
D. EXTRAORDINARY FAMILY CIRCUMSTANCES
A defendant's family obligations "are nor ordinarily relevant in
determining whether a sentence should be outside the applicable guideline
range." U.S.S.G. § 5H1.6. In considering this "discouraged" basis for
departure, "the court should depart only if the 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." Koon, 518 U.S. at
96. A downward departure for extraordinary family circumstances is not
intended to reduce the culpability the defendant; its rationale is to
avoid "wreak[ing] extraordinary destruction on dependents who rely solely
on the defendant for their upbringing." Johnson, 964 F.2d at
In this case, Mateo's two young children have been thrust into the care
of Mateo's relatives, who report extreme difficulties in raising them.
Because both fathers are absent, the children, now ages six and one, will
be raised apart from both biological parents for as long as Mateo is in
custody. This burden is especially acute upon Mateo's newborn child,
Johan. The facts of this case fall within the parameters of
other cases in which the Second Circuit has upheld downward
departures for extraordinary family circumstances. See
United States v. Galante, 111 F.3d 1029, 1035 (2d Cir. 1997)
upholding departure where defendant supported two children and where
defendant's wife earned less than half defendant's income);
Johnson, 964 F.2d at 129-30 (upholding departure where
defendant was "solely responsible for the upbringing of her three young
children, including an infant, and of the young child of her
institutionalized daughter"); United States v. Alba,
933 F.2d 1117, 1122 (2d Cir. 1991) (upholding departure where
defendant supported his wife, two daughters, disabled father, and
grandmother); cf. United States v. Smith, 331 F.3d 292, 293-94
(2d Cir. 2002) (reversing departure where defendant's employed wife
could support defendant's son and where defendant's mother lived nearby
to assist with childcare).
The Court notes that, unlike Alba or Galante, in
which the Second Circuit upheld a downward departure, and
Smith, in which the Second Circuit reversed the departure,
Mateo does not have a spouse who can care for her children. Cf.
Johnson, 964 F.2d at 129 (" Johnson's situation, in fact, is
substantially more compelling than that of the defendant in
Alba, whose children were ages four and eleven, and whose
spouse could care for their children and elderly dependents").
The Court concludes that these facts provide a separate and independent
basis for a nine-level-downward departure.
E. COMBINATION OF FACTORS
Even where no single basis for departure would be sufficient, the 2001
Guidelines recognize the possibility of a "extraordinary case" in which
a combination of factors falls outside the heartland of cases and
justifies departure. See U.S.S.G. § 5K2.O cmt.;
see also Broderson, at 459 n. 1 (holding
that the aggregate of considered and unconsidered factors may justify
In the alternative, the Court finds that the combination of Mateo's
extraordinary family and pre-sentence confinement circumstances warrants
the nine-level departure, even if the Court were to have concluded that
the factors did not individually support a departure.
F. EXTREME VULNERABILITY
Mateo also seeks departure on the ground that she is particularly
vulnerable to abuse in a prison setting. Mateo relies upon
Lara, in which the Second Circuit upheld a downward departure
for a bisexual defendant to account for the defendant's "immature
appearance, sexual orientation and fragility." 905 F.2d at 603. The
defendant had been victimized already in prison, and the only way to
protect him was to place him in solitary confinement. Id. "The
Morales' prison term is exacerbated by his placement in solitary
confinement as the only means of segregating him from other inmates.").
The Court finds Lara inapplicable to the present facts. There
is no indication that Mateo is any more vulnerable to prison abuse than
any other incarcerated woman, especially because she has been moved from
the MDC to the MCC precisely to avoid the corrections officer who had
harassed her previously. Accordingly, the Courts declines to depart on
For the reasons stated, it is hereby
ORDERED that the motion of defendant Jubelquis Mateo
("Mateo") for a downward departure of the sentencing range applicable
under the United States Sentencing Guidelines is granted on the grounds
of Mateo's extraordinary presentence confinement and family
circumstances, or on a combination of these factors, and denied on the
ground of extreme vulnerability; and it is hereby
ORDERED that, for the purposes of determining the sentence of
criminal defendant Jubelequis Mateo, the Offense Level under the
Sentencing Guidelines shall be reduced to sixteen (16).