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January 20, 2004.

UNITED STATES OF AMERICA -v- HECTOR MARTINEZ-SALAZAR, a/k/a "Ignacio Mejia," a/k/a "Hector S. Martinez," Defendant

The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


Defendant stands before the Court for sentencing following his plea of guilty to one count of illegal reentry after deportation. There is no dispute that under the sentencing guidelines, his offense level is 21 and his criminal history category is III, resulting in a guideline sentencing range of 46-57 months. Defendant seeks a downward departure on various grounds. Most of the sentencing issues in the case were dealt with orally on the record at defendant's sentencing. This opinion addresses only one of those issues, and elaborates on the rationale of a departure in an interesting, and relatively common, situation in which a departure from the guideline sentence is sometimes required to effectuate the intention of the guidelines themselves. Page 2


  Like many others convicted of illegal reentry, this defendant, who had previously been deported as a result of criminal conduct, was again "found" in the United States after being again arrested by state authorities for an additional crime. The specific facts fit a depressingly familiar pattern. Defendant was convicted in 1994 in New Jersey of possession of narcotics with intent to distribute, sentenced to imprisonment, and deported to the Dominican Republic in 1995. In 1999 he was arrested in New York on another narcotics charge, and by about April 2000 the dots were connected and the immigration authorities became aware of his illegal reentry into the country. He was indicted for the immigration offense on September 28, 2000.

  Meanwhile, however, in early May 2000, defendant had jumped bail on the state charges. Apprehended again on or about May 26, 2001, defendant eventually pled guilty to the state charges and on July 9, 2002, he was sentenced to 5-10 years' imprisonment on the state charges. He has been continuously in state custody since May 2001. Nevertheless, it was not until March 7, 2003, nearly two years after his return to state custody, that he was writted to this Court to face the outstanding reentry indictment. Having pled guilty on June 20, 2003, he has now been in federal custody for over ten months.*fn1 Because he was in custody as a sentenced state prisoner, none of that time will be credited against any federal sentence that will be imposed as a result of the instant case. Page 3


 I. Sentencing a Defendant Already Serving a Prison Sentence

  A major purpose of the Sentencing Reform Act of 1984 and the sentencing guidelines system it creates is to eliminate arbitrary disparity in the treatment of different offenders convicted of the same crimes, and to assure that similarly situated offenders are treated similarly. This, however, is a goal easier announced than accomplished, given that federal sentences account for only a small portion of all American offenders. The interaction between the laws of the fifty states, which govern the treatment of most offenders, and federal law, can often produce perplexing disparities, particularly where the same criminal is to be sentenced under both state and federal law.

  The guidelines recognize this problem, and also recognize that simple rules cannot guarantee fairness in all situations. Thus, when a defendant facing federal sentence is already serving another term of imprisonment (usually but not necessarily a state sentence), the sentencing court must decide how to coordinate the federal punishment with the existing state sentence. In principle, the coordination can be accomplished by making the federal sentence run concurrently, consecutively, or partially concurrently with the existing sentence. Addressing this choice, the guidelines create rules that cover the most extreme or easily analyzed situations. Thus, if the new crime was committed while the offender was already serving his state sentence, the additional sentence is to be imposed consecutively. U.S.S.G. § 5G1.3(a). Few could quarrel with this result. The new crime is completely independent of that for which the earlier sentence was imposed, and was committed in spite of whatever deterrence or rehabilitation one might have hoped the first sentence would accomplish; thus, a totally new and additional punishment is Page 4 called for. At the other extreme, the guidelines require a concurrent sentence where the conduct now being punished was already completely taken into account by the prior sentence. U.S.S.G. § 5G1.3(b). Again, this is an obviously correct result: if the conduct has already been punished, it would not be fair to impose an additional punishment for the same behavior.

  But these rules cover only the narrow situations they specifically address. "In any other-case," the guidelines leave the question of concurrent versus consecutive sentencing in this situation to the discretion of the sentencing judge, "to achieve a reasonable punishment for the instant offense." U.S.S.G. § 5G1.3(c). Certain factors are set forth for the court to consider, see U.S.S.G. § 5G1.3, Commentary, Application Note 3, but the Sentencing Commission understandably chose to give broad discretion to the sentencing court to deal with the great variety of circumstances that could arise, and made no effort to categorize cases or dictate the weight to be given to various factors.

  In short, the intention of the guidelines is that where a defendant who is already imprisoned for a former offense is to be sentenced for another crime, the Court is in most cases to have discretion to impose a sentence concurrently or consecutively, so as to accomplish the goals of sentencing set forth by Congress in the Act.

 II. Departures for Lost Opportunities for Concurrent Sentencing

  This intended discretion, however, can be frustrated, intentionally or otherwise, by Government actions. Subject to the statute of limitations, the Government has unilateral discretion over the timing of indictments. Thus, where the federal authorities seek to charge someone who is serving time in a state prison, the Government decides whether he is charged immediately, or not until he has served several years in prison. Similarly, even where a Page 5 defendant has been indicted, a court has no way of knowing that the defendant is in custody in some other jurisdiction. The Government initiates the process by which a state prisoner is brought to federal court, pursuant to a writ of habeas corpus ad prosequendum, to face the federal charges. If the Government, intentionally or otherwise, delays these processes, the intended discretionary authority of the Court to impose a concurrent or consecutive sentence to achieve the proper objectives of sentencing is pro tanto preempted. That is, the Government, by waiting to charge or acquire custody over the defendant until his state sentence is nearly expired, can render the question of concurrent sentences moot, and defeat the Court's power, granted by the guidelines, to decide that question.

  In United States v. Los Santos, 283 F.3d 422 (2d Cir. 2002), the Court of Appeals addressed this situation. The sentencing judge had departed downward from the guideline sentence for illegal reentry, in order to give the defendant credit for time spent in processing his case. After holding that credit for the time spent in federal custody was a matter for the Bureau of Prisons, and that there was no justification for crediting defendant with time in state custody before the Government was aware of him, id. at 427, the Court addressed the four months during which he was in state custody between the date the immigration authorities learned of his presence, and the date on which he was brought to federal court to face the immigration charge. Given the relative brevity of the delay, the Court rejected the defendant's argument for departure covering this period, noting that even for the relatively simple crime of illegal reentry, the Government needs a reasonable period of time to investigate the case. Id. at 428. However, the Court also rejected the Government's argument that "any delay of prosecution that occurs within the applicable statute of limitations should be deemed presumptively legitimate and is within its Page 6 prosecutorial discretion." Id. Of course, a bad faith delay, concocted for the purpose of defeating the sentencing court's discretion and unilaterally increasing the penalty to be served, would warrant a departure. But even that, the Court ruled, is insufficient protection for defendants:
[A] rule requiring a defendant to show bad faith on the government's part would nearly always prove to be an insurmountable burden for the defendant, even in a case where the delay is extreme. Moreover, such a rule would enable the government to be utterly negligent and careless in its prosecution without giving recourse to a defendant, the only one who would suffer from such negligence. . . . Considering [the relevant] cases and the policy concerns raised by the government in their brief, we hold that in order for a district court to depart under § 5K2.0 ...

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