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United States District Court, S.D. New York

May 20, 2005.


The opinion of the court was delivered by: HAROLD BAER, JR., District Judge


Defendant Alfred Murray ("Murray") seeks reconsideration of this Court's Order that declined to re-sentence him pursuant to the Second Circuit's remand on March 17, 2005. After consideration of all the materials submitted by both Murray and the Government, discussed in detail below, Murray's motion to reconsider is GRANTED and on June 10, 2005, the Court, with the Defendant present, will vacate the original sentence and re-sentence Mr. Murray.

I. Background

  On November 12, 2004, Murray pled guilty to one count of conspiracy to distribute and possess with intent to distribute more than 50 grams of cocaine base or "crack" in violation of 21 U.S.C. § 841(a), § 841(b)(1)(A) and § 846. On November 13, 2003, this Court sentenced Murray to 235 months of confinement followed by 5 years of supervised release.

  Murray's Pre-Sentence Report ("PSR") depicted the narcotics conspiracy in which Murray was a manager as a violent and deadly Bronx organization that trafficked in crack. (PSR at 4.) In addition to the PSR, prior to sentencing the Court received letters on behalf of Murray that described his commitment to his mother and younger brother, and to his community. These actually included a ten-year history as a volunteer tutor for children in a local community outreach program. He also helped to start a program for senior citizens where volunteers would escort the frail elderly on essential errands such as trips to the supermarket or the bank.

  At sentencing, Murray did not contest the United States Sentencing Guideline range calculated by the Probation Department, but he did argue that he was entitled to a downward departure on the ground that he had been incarcerated on state charges for a crime he did not commit and for which the charges were ultimately dropped by the Bronx County District Attorney's Office. (Sent. Tr. 2:10-18:16.) Because of this incarceration (eleven months in duration), Murray argued, his life was torn asunder and among other things he was, upon release, unable to find legitimate employment. The Court considered and rejected this argument because there was no "nexus" between Murray's prior incarceration and the criminal conduct for the current charges so as to permit a departure under § 5K2.0. As such, this Court declined to make any downward departure.

  Also at sentencing, the Court inquired as to why Murray had not sought a departure based on his cooperation with the Government. (Sent. Tr. 18:17-20:17.) As it turned out, while Murray had participated in several proffer sessions, the Government opined that he had withheld information about his own illegal activity and concluded against a motion under § 5K1.1, which would have provided a basis for a downward departure.


Prosecutor: Mr. Murray had come in for proffers and was attempting to cooperate, and we entered into such an arrangement. But because of various reasons that we felt that the agreement was not being satisfied and that Mr. Murray was attempting to cooperate, the arrangement was terminated.
The Court: Unable or unwilling?
Prosecutor: In our view, there was [sic] certain omissions that Mr. Murray was making that we were unable to, despite our best efforts, despite counsel's best efforts, we were unable to overcome, and they were large stumbling blocks to entering into such an arrangement. Maybe in the future that could change, and perhaps it will but today Mr. Murray does not satisfy the elements for the government to consider cooperation. We have terminated that relationship. It could again arise if Mr. Murray has a change of heart, but at this stage, no such agreement exists and there is no basis for a departure on that basis.
The Court: Mr. Murray, do you have anything you want to say on your own behalf?
  Defendant: No, sir. (Sent. Tr. 20:01-20:17.) Murray appealed his sentence to the United States Court of Appeals for the Second Circuit in which he argued that this Court was wrong in its belief that it lacked the authority to depart with regard to the prior incarceration. Murray also filed a supplemental brief in the Second Circuit with the argument that his sentence was imposed in violation of his Sixth Amendment right to a jury determination of the facts necessary to enhance his sentence beyond what it would have been absent the additional factual findings. The Second Circuit dismissed Murray's appeal on August 30, 2004, but withheld the mandate in Murray's case, pending the Supreme Court's decision on the constitutionality of the Federal Sentencing Guidelines in United States v. Booker, 125 S. Ct. 738; 160 L. Ed. 2d 621 (2005). United States v. Murray, No. 03-1734, 108 Fed. Appx. 22, 25, 2004 WL 1922207 at *2 (2d Cir. 2004). After Booker, the Second Circuit issued United States v. Crosby, 397 F.3d 103 (S.D.N.Y. Feb. 2, 2005), and remanded Murray for me to consider whether to re-sentence Murray in light of the changes to the Federal Sentencing Guidelines. Thereafter the Government made no attempt to inform the Court of the nature and extent of Murray's cooperation despite the fact that this cooperation proved to be determinative in obtaining several indictments and a conviction. As a consequence, on March 17, 2005 this Court declined to resentence him.

  Murray now seeks reconsideration based on the ground that his assistance to the Government prior to sentencing, while it did not warrant a § 5K1.1 departure, now constitutes a factor that this Court may consider in determining whether to re-sentence Murray to a non-Guidelines sentence.

  II. Discussion

  A. Jurisdiction

  The standard in deciding reconsideration motions in criminal cases is not clearly established. Neither the Federal Rules of Criminal Procedure nor the Local Criminal Rules expressly provide for reconsideration motions. But courts have used our Local Rule 6.3 as a guide. See, e.g., United States v. Delvi, 2004 WL 235211 (S.D.N.Y. Feb. 6, 2004); United States v. Greenfield, 2003 WL 1230538 (S.D.N.Y. Oct. 16, 2001). Pursuant to that Rule, reconsideration is appropriate where a court overlooks "controlling decisions or factual matters that were put before it on the underlying motion . . . and which, had they been considered, might have reasonably altered the result before the court." United States v. Kurtz, 1999 WL 349374 at *6 (S.D.N.Y. May 28, 1999). In this case there exist factual matters that were unknown when I declined to re-sentence Murray, specifically, the nature and extent of the information he provided to the Government. I conclude that reconsideration is proper.

  B. The Decision to Re-Sentence

  In this case, there was at the time of sentencing no permissible departure from the Guidelines and as such, this Court sentenced the Defendant to 235 months, the lowest sentence in the applicable range. Murray had a base offense level of 38 based on the weight of cocaine he was convicted of possessing. The offense level was raised three levels pursuant to § 3B1.1(b) because Murray had a manager's role in the offense, and was lowered by three levels pursuant to § 3E1.1(a) and (b) for acceptance of responsibility because Murray pled guilty to the charge. This resulted in a total offense level of 38 (criminal history category I) and a sentence range of 235-293 months.

  Prior to sentencing, Murray entered into a Cooperation Agreement with the Government which required him to, among other things, "truthfully and completely disclose all information with respect to the activities of himself and others" concerning the drug conspiracy. (Coop. Ag. at 1.) If the Government was satisfied that Murray had "provided substantial assistance in an investigation or prosecution," and Murray complied with the Agreement, the Government would file a motion pursuant to § 5K1.1. Id. at 3. However, the Government determined that Murray had not been completely truthful in the information he supplied and concluded against moving under § 5K1.1.

  At sentencing on November 13, 2003, the Government, while it conceded that Murray did provide information about other members of the narcotics conspiracy he had lied in his proffer about his own criminal activity and thus voided the Agreement. (Sent. Tr. 20:07.) Specifically, the Government determined from other witnesses that Murray minimized his own participation in the organization and failed to disclose that he was running his own drug "spots" on the side. (Gov't Ltr. Apr. 29, 2005 at 4.) Murray argues that the Court should re-sentence him not because he deserved a § 5K1.1 motion, but rather because a non-Guideline sentence pursuant to Title 18 U.S.C. § 3553(a) is now possible and in his case appropriate.

  Murray also asks the court to consider his prior incarceration as a factor, but the Court declines to do so for the same reasons it declined to do so on November 13, 2003. There simply is no connection between Murray's prior arrest and the crime for which he pled guilty. United States v. Lucas, 357 F.3d 599, 610 (6th Cir. 2004) (affirming denial of downward departure sought by defendant who had been raped during her prior incarceration in an unrelated case where the district court found that there was no "showing that the mental effect of that tragic incident affected her responsibility in this case").

  As part of its consideration as to whether to re-sentence Mr. Murray, the Court may only rely on information that was available at the time of sentencing. Crosby, 397 F.3d at 118 n. 19. Murray's cooperation with the Government (while not in the Government's view sufficient to warrant a motion pursuant to 5K1.1 and thus warranting a departure) is now something that the Court may consider along with all the other factors in § 3553(a). Murray met with Assistant United States Attorneys on seven occasions prior to sentencing and provided information about eight other members of the narcotics conspiracy and their roles in the organization, including two co-conspirators suspected of the murder of a rival gang member. (Gov't. Ltr. Apr. 29, 2005 at 4.) Murray also provided information about an individual who shot Murray and killed a co-conspirator. Id. The Government concedes that other Government witnesses and evidence corroborated much of the information Murray provided. Sadly, despite this significant cooperation, the strict mechanical adherence by the Government to the language of the Cooperation Agreement coupled with the Guidelines denied the Defendant any opportunity for a downward departure at sentencing. Now however, and based on the extent and significance of Murray's information, it is proper for this Court to conduct the analysis set forth in Crosby to impose a non-Guidelines sentence.

  C. The Appropriate Non-Guidelines Sentence

  After the Supreme Court decision in United States v. Booker, 125 S. Ct. 738 (Jan. 12, 2005), sentencing decisions have changed in that the Federal Sentencing Guidelines are no longer mandatory but for the statutory mandatory minimum sentences. In United States v. Jerome Crosby, 397 F.3d 103 (2d Cir. Feb. 2, 2005), the Second Circuit set forth procedures for both sentencing and re-sentencing in light of the significant changes to the Federal Sentencing Guidelines and instructs sentencing judges that they must still consider the Guidelines in addition to the factors articulated in Title 18 U.S.C. § 3553(a). Id. at 111.

  Consideration of the Guidelines requires determination of the applicable Guidelines range, or at least identification of the arguably applicable ranges, and consideration of applicable policy statements. Id. Keeping the Guidelines in mind, § 3553(a) provides a variety of other factors to be included in my thinking and utilized where appropriate. Under § 3553(a), the Court should consider among other things, (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness of the offense, to provide just punishment and deterrence to criminal conduct, to protect the public from further crimes of the defendant; and 3) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found or pled guilty of similar conduct. 18 U.S.C. 3553(a).

  After consideration of both the Guidelines and Title 18 U.S.C. § 3553(a), the Court must then decide whether to impose a Guidelines sentence, i.e, a sentence within the applicable Guidelines range or within permissible departure authority, or a non-Guidelines sentence. Crosby, 397 F.3d at 112. In addition, the sentencing judge is "entitled to find all the facts appropriate for determining either a Guidelines sentence or a non-Guidelines sentence." Id. at 13.

  While it is clear that the Court must make its decision whether to re-sentence based on what transpired before the sentencing, the Crosby decision expressly declines to provide guidance as to whether the Court can consider post-sentencing events and actions in its determination of what any new sentence should be. "If based solely on the circumstances that existed at the time of the original sentence, the sentencing judge decides to re-sentence, the judge will have to consider the issue of what current circumstances are to be considered, an issue on which we express no views at this time." United States v. Crosby, 397 F.3d 103, 118 n. 19 (2d Cir. Feb. 2, 2005). But both Booker and Crosby are clear that the sentencing judge may find facts to determine an appropriate sentence.*fn1 Crosby, 397 F.3d at 113; Booker, 125 S. Ct. at 747. My interpretation of this language leads to the conclusion that the Court has the authority to consider what happened both before and after the original sentence to determine the appropriate sentence now.

  Consideration of what events transpired as well as Murray's conduct after sentencing is important because Murray's truthful information about his co-conspirators given before sentencing is inextricably bound up in what he contributed after sentence. In this case, the information that Murray provided to the Government before he was sentenced helped them to indict others in the conspiracy including two men who were charged with the murder. (Gov't Ltr. Apr. 29, 2005 at 2.) After he was sentenced, Murray testified at the trial of the man who shot him and killed a fellow gang member. (Gov't Ltr. Apr. 29, 2005 at 3.) Because he had already been sentenced when he testified, Murray stood to gain nothing from the Government in exchange for his testimony. Not least important, while under oath Murray admitted that he lied to the Government in their initial discussions about his own drug dealing activities. (Hearing Tr. Apr. 29, 2005 at 14:23-15:03.) This conduct is significant and should not be overlooked when he is re-sentenced. Indeed, it goes to the heart of the characteristics of this Defendant and provides support for his genuine contrition.

  III. Conclusion

  In light of the above, Murray's motion is GRANTED. The remand Order from the Second Circuit instructs this Court to perform the above analysis in conformity with the Crosby opinion, and then, if the Court chooses, to vacate the sentence and, with the Defendant present, re-sentence him. As such, Mr. Murray's sentence will be vacated and he will be re-sentenced on June 10, 2005. The Government is instructed to have the Defendant produced on or before June 10, 2005 and in Court on that date at 10:00 A.M. Any additional submissions should be in chambers no later than June 1, 2005.


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