United States District Court, S.D. New York
July 5, 2005.
UNITED STATES OF AMERICA
EMAYAEK EKANEM, Defendant.
The opinion of the court was delivered by: LEONARD SAND, Senior District Judge
MEMORANDUM AND ORDER
On March 22, 2005, the Court of Appeals remanded this case so
that this Court might consider whether to resentence Mr. Ekanem
in conformity with United States v. Crosby, 397 F.3d 103 (2d
Cir. 2005). In conformity with that decision, the Court has
reevaluated its sentence. Specifically, the Court has considered
the guideline range and the sentencing factors set forth in
18 U.S.C. § 3553. After such consideration, the Court has determined
that resentencing is not warranted and we briefly set forth our
reasons for this conclusion.
Following Ekanem's plea of guilty, one day after trial
commenced, this Court held a Fatico hearing and received
extensive submissions from the parties. The Court found the
guidelines range to be 18-24 months, a determination sustained by
the Court of Appeals. The Court imposed the minimum guideline
sentence of 18 months, stating in part:
I have to tell you that I regard what you did as
being very, very serious. Misusing funds, public
funds given for this purpose, for reimbursing child
care providers is in my opinion a very serious crime.
Were it not for a number of factors . . . I would be
imposing a sentence at the top of the guidelines
because I regard the crime as being such a serious
abuse of discretion. But . . . I find that there are
mitigating circumstances here, including the passage
of time and your family situation, and I impose a
sentence of 18 months, the bottom of the guidelines.
Sent. Tr. at 135. Thus, the Court explicitly noted and took into consideration
the mitigating circumstances urged by defendant and his counsel.
After a fresh review of all of the circumstances surrounding
this defendant and his criminal conduct, I am of the view that
defendant's sentence would have been no lower had the guidelines
not been mandatory or if a non-guideline sentence been imposed.
This Court believes that any resentencing of Ekanem would not be
in his interest.
The request for resentencing is denied.
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