The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
This Court sentenced the defendant, Wendy Ann Weeks ("Weeks"),
on August 12, 2004, on two separate charges to 37 months
imprisonment, to run concurrently. Weeks had pleaded guilty to a
one-count information charging the uttering of counterfeit
obligations in the Western District of New York in violation of
18 U.S.C. § 472. That activity occurred on February 21, 2004.
Weeks also pleaded guilty to an indictment also charging a
violation of § 472 which occurred in the Central District of
California and was prosecuted here by means of Rule 20, FED. R.
That judgment was appealed. Shortly after the United States
Supreme Court's decision in United States v. Booker,
543 U.S. ___, 125 S.Ct. 738 (January 12, 2005), the parties stipulated
to withdraw the appeal. By order entered February 7, 2005, the
Second Circuit Court of Appeals granted the motion and ordered
the appeal withdrawn, "without prejudice to timely reinstatement after disposition by the district court of defendant-appellant's
request for re-sentencing." The mandate issued on March 9, 2005.
I treat the Second Circuit's order in this case as a remand
pursuant to United States v. Crosby, 397 F.3d 103 (2005) to
provide the District Court with an opportunity to determine
whether it would have sentenced the defendant differently in
light of Booker. The Second Circuit's decision in this case,
unlike some others that I have received, does not direct the
Court to vacate the prior sentence and resentence the defendant.
This Court directed Weeks and the Government to submit
sentencing memoranda on both procedural and substantive issues. I
have reviewed those submissions. I have also reviewed the
original judgment and commitment, the plea agreement filed May 7,
2004, the original presentence report ("PSR") and my sentencing
notes, which I prepared for the original sentence on August 11, 2004.
In addition, I have reread Booker and the cases discussing
its implementation in the Second Circuit, and have considered all
the sentencing factors listed at 18 U.S.C. § 3553(a). I
understand, of course, that the United States Sentencing
Guidelines are advisory.
The plea agreement in this case anticipated that Weeks had a
Criminal History Category of III and, with an Offense Level of
14, her range of imprisonment was 21 to 27 months. The PSR,
however, determined that several enhancements applied which
raised Weeks' Offense Level, 5 levels, to a Level 19 with a
resulting Guideline range of 37 to 46 months.
The Probation Department added 3 points, pursuant to Guideline
Section 2J1.7 because Weeks committed the uttering offense in the
Western District of New York while she was on release in California on pending federal charges there. The Probation
Department also added a 2 point enhancement under Guideline
Section 3C.1.1 for obstruction of justice. This was based on the
determination that Weeks fled from California on the very day,
July 10, 2003, that she was ordered to reside at a residential
drug treatment facility. Weeks was released to that facility and
within hours fled and remained a fugitive until she was arrested
in this District after committing a new offense. At sentencing, I
accepted and adopted both enhancements and sentenced Weeks to the
low end of the resulting Guideline range, 37 months.
Whether the Guidelines are now advisory or not, I see no basis
to change my original sentence. Weeks repeat conduct involving
passing counterfeit notes in several jurisdictions warrants this
sentence. The fact that she fled from California while charges
were pending, and the fact that she committed the uttering
offense here in the Western District of New York while on release
from the California case, warrants consideration at sentencing.
While the original Guideline range was 21 to 27 months, the
actual sentence of 37 months, in my view, was warranted at the
time of the initial sentence and is warranted now. I have
considered all the factors under § 3553(a), and it would not
change my sentence in any respect. In light of all the facts, I
believe the 37-month sentence to be a reasonable one and,
although, I believe that I could now impose a more onerous
sentence, I decline to do so here.
Defendant's motion for a resentencing is denied. Pursuant to
United States v. Crosby, 397 F.3d 103 (2d Cir. (2005), I
decline to modify or change my prior sentence and state that the
sentence imposed in this case on August 11, 2004 would be imposed now under the
principles enunciated in United States v. Booker, supra.
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