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United States District Court, S.D. New York

April 16, 2004.


The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge


Defendant Damion Gowdie ("Gowdie") pled guilty on April 28, 2000 to a conspiracy to distribute and possess with intent to distribute 50 grams and more of crack cocaine in violation of 21 U.S.C. § 812 and 841(a)(1) and 841(b)(1)(A), under 21 U.S.C. § 846. For the reasons set forth below, Gowdie will be sentenced to 108 months' imprisonment, followed by five years of supervised release. A $100 special assessment fee is mandatory.

The Defendant

  Gowdie was born to Gloston Gowdie and Pauline Powell on April 15, 1977 in Jamaica, West Indies. His father, approximately age 41, resides in Jamaica, and his mother, approximately age 43, resides in the Bronx. Gowdie's father is employed in a floral shop, while his mother is employed as a nurse's aide. Gowdie's four siblings range in age from 12 to 20. Gowdie entered the United States on August 12, 1989, and he is a permanent resident alien. Based on a conviction for a felony offense, he is subject to removal proceedings for violating the Immigration Act.

  Gowdie's ex-girlfriend, Nakisha Herin, age 25, resides in Manhattan. Their relationship produced one child, Dimetra Gowdie, age six. Prior to Gowdie's arrest, he resided with Nakisha Herin for approximately seven years. Prior to that, he resided with his mother in the Bronx, New York.

  During the initial interview, Gowdie reported that he consumed alcohol on occasion and that he last consumed alcohol approximately four years ago. He further reported that he had been using marijuana for seven years, that this use escalated daily, and he last smoked marijuana approximately one year ago. During Gowdie's follow-up interview, he related that in 2001, he completed a drug and life style course that had been very helpful to him.

  In his follow-up interview, Gowdie indicated that he is interested in obtaining a General Equivalency Diploma, as well as taking computer and college courses. He also has an interest in carpentry work and mechanics. Gowdie attended the Lewis D. Brandeis High School in Manhattan in the late 1980's until the 11th grade when he was "kicked out" for "cutting" classes.

  In 1996 and 1997, Gowdie held summertime employment at a summer youth program in the Bronx. He worked at a day-care center part time and took the children on trips.

  Gowdie has no assets or liabilities.

  The instant offense represents Gowdie's fourth narcotics-related crime. However, he did not receive criminal history points because the conduct in those crimes is related to the instant offense.

 The Offense

  Gowdie has pled guilty to involvement in a Conspiracy to Distribute Narcotics from 1994 to 1999. The amount of drugs distributed by the conspiracy included at least 1.5 kilograms of crack. Part of the time, he was involved in hand-to-hand sales of crack cocaine. He also served as a supervisor for approximately six months, collecting narcotics proceeds. The Guidelines

  Gowdie has zero criminal history points, which establishes a Criminal History Category of I.

  The guideline for a violation of 21 U.S.C. § 846 is found in U.S.S.G. § 2D1.1. The base offense level is 38. Although Gowdie served as a supervisor temporarily, he will not receive the aggravating role enhancement under U.S.S.G. § 3B1.1. See United States v. Birkett et al., No. 99 Cr. 338 (RWS), 2003 WL 22940486, at *8 (S.D.N.Y. Dec. 15, 2003). In light of this temporary supervisor status, however, Gowdie is not eligible for a mitigating-role adjustment. See id.

  Based on acceptance of responsibility, a 3-level reduction is warranted pursuant to U.S.S.G. § 3E1.1(a).

  Because Gowdie has not received an aggravating-role enhancement, and he has satisfied the remaining four of the five requirements of the safety valve provision, U.S.S.G. § 5C1.2, he qualifies for a further 2-level reduction in the offense level, pursuant to U.S.S.G. § 2D1.1(b)(6), and the Court may impose a sentence in accordance with the applicable guidelines "without regard to any statutory minimum sentence." U.S. S. G. § 5C1.2. This conclusion overrides that reached in this Court's opinion and order dated December 15, 2003. Birkett, 2003 WL 22940486, at *8 (holding that Gowdie did not satisfy the safety valve criteria because he was a temporary supervisor and did not play a minor role in the conspiracy).

  The applicable offense level is thus 33.

  Pursuant to 21 U.S.C. § 846 and 841(b)(1)A), the sentencing range is from a mandatory minimum of 10 years to life imprisonment. Based on a total offense level of 33 and a Criminal History Category of I, the guideline range of imprisonment is 135 to 168 months.

  A term of at least five years to life supervised release is required if a sentence of imprisonment is imposed, pursuant to 21 U.S.C. § 846. The guideline range for a term of supervised release is at least five years, pursuant to U.S.S.G. § 5D1.2(b).

  Gowdie is not eligible for probation because the instant offense is a Class A felony, pursuant to 18 U.S.C. § 3561(a)(1), and because the instant offense is one for which probation has been expressly precluded by statute, pursuant to 18 U.S.C. § 3561(a)(2) and 21 U.S.C. § 846. Gowdie is further ineligible for probation, pursuant to U.S.S.G. § 5B1.1.

  A special assessment of $100 is mandatory, pursuant to 18 U.S.C. § 3013. Pursuant to 21 U.S.C. § 862(a)(1)(B), upon the first conviction for distribution of a controlled substance, a defendant may be declared ineligible for any or all federal benefits for up to five years as determined by the Court. Pursuant to U.S.S.G. § 5F1.6, the defendant may be denied eligibility for federal benefits.

 Downward Departure

  Gowdie has moved for a downward departure under U.S.S.G. § 5K2.0.*fn1 He has argued that a downward departure is warranted to address the anomalous situation in which, because he was denied a minor-role adjustment due to his status as a temporary supervisor for a period equivalent to 10% of the duration of the offense, he is ineligible for a reduction in the base offense level under U.S.S.G. § 2D1.1(a)(3), despite the fact that his conduct throughout the majority of the offense is most comparable to co-defendants who have received a minor-role adjustment. He further argues that his own situation is akin to that described by the Second Circuit in United States v. Lara, 47 F.3d 60 (2d Cir. 1995), in which the Court of Appeals determined that a downward departure was appropriate where the drug-quantity table over-represented certain defendants' culpability.*fn2

  Under 18 U.S.C. § 3553(b), a district court may depart from the guideline range if it finds circumstances "not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." See also U.S.S.G. § 5K2.0 (same). "A court dealing with an `atypical' case is thus not `rigidly constrained' by the Guidelines. When considering such a departure, the sentencing court must consider the `nature and circumstances of the offense and the history and characteristics of the defendant.'" United States v. Carpenter, 320 F.3d 334, 342 (2d Cir. 2003) (quoting United States v. Bryson, 163 F.3d 742, 746-47 (2d Cir. 1998)) (internal citation omitted). Indeed, according to the Supreme Court, "[i]t has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and punishment to ensue." Koon v. United States, 518 U.S. 81, 113 (1996); see also United States v. Allen, 250 F. Supp.2d 317, 320 (S.D.N.Y. 2003) (citing United States v. Payton, 159 F.3d 49, 60 (2d Cir. 1998) ("Realizing some cases will fall outside the heartland of typical cases, Congress entrusted sentencing courts with discretion to take into account specific characteristics of the offender.")). Thus, as the Second Circuit has recently explained,

Although departure authority is not a device for subverting the Guidelines, its restrained use in limited circumstances can provide appropriate flexibility in an elaborate sentencing regime that, however thoughtfully constructed, could not possibly anticipate all of the circumstances that might arise in its application. That is why the governing statute and the Guidelines themselves permit departures, even when a circumstance has been considered by the Commission, as long as that circumstance is present `to a degree' not adequately considered by the Commission.
United States v. Lauersen, — F.3d —, 2004 WL 575748, at *6 (2d Cir. Mar. 24, 2004) (citing 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0) (internal citation omitted). The decision "whether to depart, and the extent of the departure, if made at all, remain within the discretion of the sentencing judge." Lauersen, 2004 WL 575748, at *6.

  Several courts in this Circuit have recognized that the sentences authorized by the Guidelines based on relatively high quantities of narcotics chargeable to a defendant may, on occasion, over-represent the culpability of that defendant due to the so-called quantity/time factor, or "the relationship between the amount of narcotics distributed by a defendant and the length of time it took the defendant to accomplish the distribution*" United States v. Genao, 831 F. Supp. 246, 248 (S.D.N.Y. 1993), aff'd sub nom., United States v. Lara, 47 F.3d 60 (2d Cir. 1995). "Congress authorized severe sentences for those dealing in large quantities of narcotics in order to provide justified punishments for `stereotypical drug dealer[s],' which Congress described in congressional debate as those who `live in the fast lane'. . . ." United States v. Wong, No. 99 Cr. 842 (RPP), 2000 WL 1725056, at *3 (S.D.N.Y. Nov. 17, 2000) (quoting Genao, 831 F. Supp. at 247 (quoting 134 Cong. Rec. S3127 (1988) (remarks of Senator Graham))). As a consequence,

[T]he Guidelines place an unrealistic importance on the importance of the total weight of drugs distributed over time, often by relatively low-level participants in the drug trade, to the extent that total is known to and provable by the authorities. . . . That weight is typically an entirely arbitrary amount, which reflects not the defendant's real culpability, but simply the quantity of drugs the dealer had on him when arrested, or the length of time the investigators were prepared to devote to making undercover purchases . . . Particularly where the incremental punishment mounts so dramatically based on small and inexpensive quantities of a drug, the emphasis on quantity can result in huge differences in punishment based on virtually meaningless differences in actual culpability.
United States v. Perez, No. 01 Cr. 754 (GEL), 2003 WL 21018815, at *6-7 (S.D.N.Y. May 5, 2003) (internal citation omitted). Such considerations led the Second Circuit to conclude in Lara that, at least as to defendants sentenced prior to November l, 1993 "whose attributable aggregate quantities place them at the high end of the drug-quantity table," the sentencing court could conclude "that the normal guideline sentence may, in some circumstances, overrepresent the culpability of a defendant and that the `quantity/time factor,' which was not adequately considered by the Commission, was available as a basis for departure." Lara, 47 F.3d at 67. This conclusion was based in part on the advent of Amendment No. 485, which revised the Application Notes to U.S.S.G. § 2D1.1 as of November l, 1993 to include a ground for downward departure where, inter alia, "the court finds that this offense level [greater than 36] over-represents the defendant's culpability in the criminal activity." U.S.S.G. App. C, Amendment No. 485 (1993) (also requiring that the defendant qualify for a mitigating role reduction).

  Although the Application Note created under Amendment No. 485 was stricken by Amendment No. 624 in 2001, the Guidelines continue to recognize the concern "that the guidelines pertaining to drug offenses do not satisfactorily reflect the culpability of certain offenders." U.S.S.G. App. C, Amendment No. 640 (2002) (determining that, "ordinarily, a maximum base offense level of level 30 adequately reflects the culpability of a defendant who qualifies for a mitigating role adjustment" and amending U.S.S.G. § 2D1.1(a)(3) accordingly). By setting a maximum base offense level at 30 for those offenders who qualify for a mitigating role adjustment, the Commission has "somewhat limit[ed] the sentencing impact of drug quantity for offenders who perform relatively low level trafficking functions, have little authority in the drug trafficking organization, and have a lower degree of individual culpability (e.g., `mules' or `couriers' whose most serious trafficking function is transporting drugs and who qualify for a mitigating role adjustment)." U.S.S.G. App. C, Amendment No. 640 (2002).

  The essence of Gowdie's argument does not depend solely on whether the quantity/time factor is an appropriate basis for a departure. Rather, it appears to depend on whether, where a defendant has played multiple roles in a conspiracy but spent the vast majority of his time as a relatively low-level participant, such a hybrid participation may constitute a mitigating circumstance "of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission" in its formulation of any of various types of downward adjustments.

  Were it not for Gowdie's stint as a temporary supervisor during approximately six months of the conspiracy that ran from 1994 through 1999, the balance of his involvement in the conspiracy through hand-to-hand sales of crack cocaine would have likely entitled him to a two-level minor-role reduction. See Birkett, 2003 WL 22940486, at *7 (noting that one of Gowdie's co-defendants qualified for a minor-role reduction where his only involvement in the conspiracy was as a "pitcher" handling the hand-to-hand sale of crack). Having qualified for a minor-role reduction, Gowdie would have then become eligible for a further reduction under U.S.S.G. § 2D1.1(a)(3). A minor-role reduction is not available to him, however, due to his position as a temporary supervisor and the responsibilities and knowledge that such a role entailed in his particular case. See Birkett, 2003 WL 22940486, at *8. The circumstances of his temporary role, however limited in duration, must be taken into account insofar as U.S.S.G. § 3B1.2 requires a determination of a defendant's role "on the basis of all conduct within the scope of § 1.1B3 (Relevant Conduct)." U.S.S.G. § 3B, Introductory Commentary; see also United States v. Yu, 285 F.3d 192, 200 (2d Cir. 2002) ("In evaluating a defendant's role, we look to factors such as `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.'") (quoting United States v. Garcia, 920 F.2d 153, 155 (2d Cir. 1990)).

  The potentially outsized consequences for Gowdie of his brief position as a temporary supervisor and the unusual circumstance presented by his hybrid involvement in the conduct underlying the offense mandates a downward adjustment here particularly when presented through the lens of the quantity/time arguments reviewed above. However, as of October 27, 2003, the Commission has forbidden departures based on role in the offense, which may now only be taken into account under U.S.S.G. § 3B1.2. U.S.S.G. § 5K2.0(d)(3); U.S.S.G. App. C., Amendment No. 651 (2003); see also United States v. Smith, — F. Supp.2d —, No. 03 Cr. 92, 2004 WL 725507, at *3 n.2 (E.D. Wis. Mar. 30, 2004) (opining that "[t]he Commission may . . . have meant in § 5K2.0(d)(3) to block courts from departing to grant a reduction for `mitigating role' when the defendant did not qualify for that reduction directly under § 3B1.2") (citation omitted). Therefore, this downward departure will not be premised on a role-related circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in its formulation of downward adjustments under U.S.S.G. § 2D1.1(a)(3). Rather, a downward departure is warranted here in recognition of a particular factual circumstance existing to a degree not adequately taken into consideration by the Sentencing Commission in formulating U.S.S.G. § 3B1.2 itself.

  A 2-level departure is appropriate in recognition of the circumstances described above. The applicable offense level is therefore reduced to 31. Based on a total offense level of 31 and a Criminal History Category of I, the guideline range of imprisonment is 108 to 135 months. The Sentence

  Gowdie will be sentenced to 108 months' imprisonment, followed by five years of supervised release.

  While serving a term of imprisonment, Gowdie will take part in educational and vocational training programs offered by the Bureau of Prisons, to include preparations in obtaining his General Equivalency Diploma.

  Gowdie is to report to the nearest Probation Office within 72 hours of his release from custody, and supervision shall be in the district of residence. As mandatory conditions of supervised release, Gowdie shall (1) abide by the standard terms of supervised release (1-13); (2) not commit another federal, state, or local crime; (3) not illegally possess a controlled substance; and (4) not possess a firearm or destructive devise.

  Gowdie will participate in a program approved by the United States Probation Office, which may include testing to determine whether he has reverted to using drugs or alcohol. The release of available drug treatment evaluations and reports are authorized to the substance abuse provider, as approved by the probation officer. Gowdie will contribute the costs of services rendered (co-payment) in an amount to be determined by the probation officer, based on availability to pay or availability of third-party payment.

  Gowdie shall also comply with the directives of the Bureau of Immigration and Customs Enforcement.

  A special assessment fee of $100 is mandatory and is due immediately.

  This sentence is subject to modification at the sentencing hearing now set for May 3, 2004.

  It is so ordered.

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