The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
AMENDED MEMORANDUM ORDER & JUDGMENT
This case reflects some of the many sentencing issues raised by
the numerous appeals in criminal cases; they arise because of the
need to follow mechanical and often harsh sentencing guidelines
while taking account of the manifold differences in the human
condition. Often, as in the case of this defendant, a recent
Pakistani immigrant who prospered as a businessman and was
returning to his homeland to share some of the proceeds of his
success, the court may not fully understand his milieu.
In Blakely v. Washington, the Supreme Court invalidated the
State of Washington's sentencing guidelines under the Sixth
Amendment to the extent that they authorized judicial
fact-finding of enchantments factors warranting a sentence above
the applicable guidelines range. 2004 WL 1402697 (U.S. June 24,
2004). Blakely does not as some have speculated constitute
the death knell of the Federal Sentencing Guidelines. Compare
United States v. Croxford, 2004 WL 1521560, *6 (D. Utah July 7,
2004) ("[T]he inescapable conclusion of Blakely is that the
federal sentencing guidelines have been rendered unconstitutional
in cases such as this one."), with United States v. Pineiro,
2004 WL 1543170 (5th Cir. July 12, 2004) (declining to extend
Blakely to the federal guidelines). See also Mistretta v.
United States, 488 U.S. 361, 109 S.Ct. 647 (1988) (strongly
supporting Guidelines' constitutionality as appropriate
delegation of legislative powers and lack of violation of
separation of powers, over dissent of one Justice). Blakely
does provide Congress, the courts and the Sentencing Commission with an opportunity and
obligation to reevaluate and revise the Guidelines. They are
presently, in general (but not as applied in the present case),
overly rigid, overly complex, overly harsh, and overly expensive
to taxpayers and society. Blakely's reintroduction of the jury
into the present sentencing process suggests the desirability of
making the Guidelines discretionary guideposts as their name
implies rather than mandatory precepts, inflexible commands.
An appropriate sentence requires an appreciation of the subtle
socioeconomic factors defining and explaining the defendant. Yet
the judge is often unlikely to possess detailed knowledge or
appreciation of the defendant's background with its subtle
cultural and linguistic characterizations usually so different
from the court's: high status, relatively large income, assured
medical care, well-todo friends in high places, and the skills to
take advantage of the system and to avoid its pitfalls. Cf.
Anna Wierzbicka, On Happiness: A cross-linguistic and cross
cultural perspective, Daedalus, 34 (Spring 2004).
There are occasions and this arguably is one of them where
an advisory jury selected from a representative cross section of
the community may serve to bridge the lifestyle and empathy gap
between judge and criminal, providing the insights and the
opportunity for a more humane and effective administration of
justice. As indicated in Parts IV and V, infra, reliance on a
jury in sentencing is possible for this purpose.
A. Crime and Original Sentence
Defendant and two of his Pakistani countrymen had labored in
the chicken restaurant business. They had assembled substantial cash savings. As is apparently the
wont of recent immigrants, they were returning to their homeland
families with cash gifts wrapped for specific relatives; they
also carried cash entrusted to them by co-workers. See, e.g.,
Elizabeth Becker, Latin Migrants to U.S. Send Billions Home,
N.Y. Times, May 18, 2004 at C4 (quoting official at the
Inter-American Development Bank: "We want to bring [the $30
billion sent by immigrants to relatives back home] out of the
shadows so people understand the critical contribution these
hard-working people are making."). The money was in the
interstices of the bags of clothing they were taking with them.
As they were about to board their plane, representatives of the
United States government asked them to declare any cash they
carried in excess of $10,000. Ali Sher Kahn, the defendant, said
he had only $12,800. A search of his bags revealed $293,266 all
of it legally earned by himself or the friends for whom he was
transporting it. There was no hint that the cash was to be used
to fund terrorist activity or for any other illegal purpose. He
was arrested, detained, tried criminally, and became a defendant
in a civil forfeiture suit for the cash that the government had
After a jury trial, defendant was convicted of cash smuggling
(31 U.S.C. § 5332(a) and (b)), making false statements
(18 U.S.C. § 1001(a)(2)) and conspiracy (18 U.S.C. § 371). His sentence was
three years of supervised release, five months of home
confinement, a special assessment of $300 and a fine of $7,500.
(The civil forfeiture suit is still pending.) The court departed
downward twelve levels because of (1) defendant's family
circumstances and (2) the potential negative impact of a prison
sentence on the workers in the businesses he operated.
Upon appeal by the United States from the downward departure
the government's view being that imprisonment of no less than forty-one months was
required the Court of Appeals for the Second Circuit reversed
and remanded for resentence. It wrote in an unpublished opinion:
[T]he district court erroneously granted a downward
departure based on Ali Khan's family circumstances
and on account of his business and employees.
. . .
1. Family Circumstances
While it is possible that exceptional family
circumstances may exist here, the district court's
departure was erroneous based on the current record.
The record does not suggest that Ali Khan was the
primary let alone sole support. The record
similarly shows nothing as to how Ali Khan's
incarceration would affect those individuals.
Curiously, the expense portion of Ali Khan's monthly
net cash flow statement, which he submitted prior to
sentencing as part of his personal financial
statement, omits any mention of funds that he sends
to support his extended family.
2. Business and Employees
"[B]usiness ownership alone, or even ownership of a
vulnerable small business, does not make downward
departure appropriate"; but a "departure may be
warranted where . . . imprisonment would impose
extraordinary hardship on employees." United States
v. Milikowsky, 65 F.3d 4, 9 (2d Cir. 1995). The
Milikowsky Court upheld a downward departure based
on extensive documentary and testimonial evidence
demonstrating that the defendant was indispensable to
his two companies and to the continuing employment of
more than 150 individuals. Id. at 8-9.
It is possible, as the district court found, that Ali
is "the main spring in the enterprise and that it
will not succeed without him;" but the record does
not support the district court's decision to depart
on this basis. Even though Ali maintains that "[h]e
attends to the purchasing and every other detail" of
the twelve-employee business, he testified also that
one of his partners handles most of the paperwork.
Ali concedes that the facts of his case are not as
compelling as in Milikowsky. There is nothing in
the record, other than Ali's self-serving and somewhat contradictory claims, indicating that
Ali has unique skills essential to this enterprise,
or that his two partners could not hire a new manager
or do the work themselves.
* * *
The current record does not support either basis,
family or business circumstances, on which the
district court granted Ali Khan a downward departure.
On remand, therefore, the court should conduct
further fact-finding necessary to reassess whether a
downward departure is appropriate and then should
re-sentence Ali Khan consistent with this order and
any additional findings that the court makes.
United States v. Khan, No. 03-1227, slip op. at 6-8 (2d Cir.
Apr. 16, 2004).
The Court of Appeals generously added that the order of remand
"does not foreclose application of [USSG § 2S1.3(b)(2) (eff. Nov.
1, 2001)], assuming appropriate showings and findings." Id. at
8. As indicated in Part V, infra, that provision of the
Guidelines permits probation without a prison term.
III. Defendant's Background
The original presentence report and the original sentencing
hearing revealed the following background:
Defendant, now thirty-five, was born in Swat, Pakistan. He is
one of six children of the marital union of Bacht Zamal and
Mehina Bibi. Raised under lower-income economic conditions, he
reported an uneventful childhood, free from drug, alcohol, and
physical abuse. Because he could not read well enough to be
promoted, defendant attended school only until the sixth grade.
His father died in 1998 of a heart attack at the age of
fifty-six. His mother lives in Pakistan, is unemployed, and suffers from diabetes. She is supported by
defendant and his brother.
Defendant has four living siblings. His one brother resides in
the United States. He is John Sher, age thirty-four, living in
Camden, New Jersey, with his wife and six children. He is in good
health and is employed as a cook in a fast food restaurant. There
are three sisters. All are housewives living in Pakistan: Begun
Bibi is married with seven children; Maleeka Bibi is married with
five children; and Shagoupta Bibi is married with four children.
Defendant had another brother, Akbar Zada, who was beaten to
death in Pakistan following a dispute over the use of water from
a river; he is survived by his wife and six children, whom the
defendant helps support.
Defendant's wife, Flora Drake, is healthy and is employed
part-time in daycare, earning between $300 and $500 per week. The
marriage his only one has not resulted in any children,
although Mrs. Khan's son from a prior marriage, Lidel Drake, age
twenty-one, resides with defendant. They live in a modest two
bedroom, walk-up apartment. Lidel has two daughters, Monat, age
six, and Aliza, age eighteen months, who live with their mother.
Since Lidel is unemployed, defendant and his wife assist in
supporting his children.
Until he was twenty-one, defendant resided in Pakistan. In
1990, he traveled to the United States by ship. He lived in
Brooklyn for six months before moving to Middletown, New York,
where he has since resided.
In 1992, defendant applied for political asylum because of the
religious strife between the Shiites and Muslims in Pakistan; the
status of that application is not known. Immigration and
Naturalization Service records indicate that defendant is a
lawful permanent resident of the United States. Defendant reported no history of mental or emotional health
problems or of gambling. In 1993 he injured his right knee
playing soccer; surgery partially repaired the damage. He is
otherwise healthy. Until his arrest, defendant smoked one or two
marijuana cigarettes and drank two "shots" of brandy or cognac
two or three times a week. He has never used any other narcotic.
Prior to 1990 defendant was a laborer on a farm or a railroad
in Pakistan earning ten to fifteen rupees a day (equivalent to a
few dollars). For a few months he was a deck hand on a ship based
in Karachi, Pakistan, earning a total of $450 ...