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August 8, 2005.


The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge


I. Introduction

  The government appealed from the district court's grant of a downward departure on the grounds of extraordinary rehabilitation. The United States Court of Appeals for the Second Circuit vacated the sentence and remanded the case for findings of fact.

  It is the government's view that the defendant, a young mother, must be imprisoned. The court disagrees. By a standard of clear and convincing evidence there has been extraordinary rehabilitation, both at the time of the original sentence and now. The fact that defendant engaged in further criminal activity while she was in the process of rehabilitation does not preclude a finding of extraordinary rehabilitation. See, e.g., United States v. Kane, 88 F. Supp. 2d 408, 409 (E.D. Pa. 2000) (granting downward departure for drug trafficking conviction based on defendant's extraordinary rehabilitation despite the fact that "[w]hile under supervision of Pretrial Services, he tested positive for drug use several times. . . .").

  After setting out the facts and procedural history (Part II), this memorandum addresses the law of rehabilitation under the Guidelines, section 3553(a) of title 18 of the United States Code, and general law (Part III); sets out this court's oral conclusions at the end of the hearing conducted pursuant to the remand (Part IV); makes findings of fact and law (Part V); and concludes that the facts and law support the original nonincarceratory sentence (Part VI).

  II. Facts and Procedural History

  A. Crime

  The defendant was charged, along with approximately sixty others, in a scheme to defraud insurance companies by staging automobile accidents and initiating false legal and medical claims based on fabricated injuries.

  The leader of the conspiracy was defendant's father, Quentin Hawkins. Beginning in January 1999, Mr. Hawkins led a city-wide organization devoted to staging car accidents with attendant fraudulent medical and legal claims. He organized the "accidents," directed the "victims" to medical clinics and personal injury lawyers, and obtained false police reports.

  To aid in conducting the scheme, Quentin Hawkins employed several "lieutenants," who were responsible for overseeing the events, including choosing locations for staged accidents, ensuring that the participants and vehicles were assembled, deciding whether the damage to the vehicles was sufficient, fabricating police reports, and coordinating referral of the "victims" to specific medical clinics and attorneys.

  The defendant and one of her brothers, who are both children of the ringleader Quentin Hawkins, were directed by him to assist in arranging "accidents" by helping recruit participants. Their mother, Quentin's wife, also participated. It was a family business.

  Following a November 1, 1999 staged accident, the defendant, along with other individuals, filed a mendacious personal injury lawsuit. On December 18, 2000, the defendant testified falsely that the accident was authentic.

  B. Conviction and Sentence

  Defendant pled guilty to a violation of section 371 of title 18 of the United States Code on May 28, 2002. There was no plea agreement. In her allocution defendant admitted to knowing participation in the November 1999 staged accident.

  At the first sentencing hearing on October 3, 2002, the court adopted the loss calculation of $148,814.00 recommended by the government. That and other factual findings resulted in enhancements that increased the final offense level from a base of 6 to 13. Since defendant had had no prior brushes with the law, the applicable Guidelines sentencing range (Offense Level 13, Criminal History Category I), was 12 to 18 months.

  Defense counsel moved for a downward departure on two grounds: extraordinary family circumstances and extraordinary rehabilitation. Decision was reserved. An adjournment of sentencing for one year was granted so that the defendant could have "a chance to show full rehabilitation." During the interim, defendant was closely supervised by the court's Pretrial Services Agency.

  The court received a positive evaluation from Pretrial Services regarding the defendant's successful efforts to maintain employment and on other aspects of her life. On September 15, 2003, a sentence principally of probation plus full restitution was imposed, based on a downward departure of five levels for extraordinary rehabilitation.

  C. Offender Characteristics

  At the September 2003 sentencing, the court was presented with a nuanced picture of the nature and circumstances of the offense and the history and characteristics of the offender.

  1. Family and Community Ties

  The defendant was born on May 7, 1975. She is one of four children of the marriage of Quentin Hawkins and Nancy Hawkins. At the time of defendant's sentence, Quentin Hawkins was incarcerated for his involvement in the scheme underlying defendant's conviction. His wife, her mother, was living with defendant, defendant's daughter, and defendant's thirteen-year-old brother.

  Defendant was raised in a low-income area, in what pretrial services described as "lower-middle-income" circumstances. Her parents were recipients of Section 8 Housing Welfare Program benefits for approximately twelve years. Her father was an alcoholic.

  After she dropped out of high school, defendant spent her time "hanging out" and partying. In 1996, unmarried, she gave birth to her daughter, Quentaya, who was six years old at the time of sentence. Quentaya's father has been almost steadily imprisoned since the child's birth. At sentencing the defendant indicated that she did not know who would care for her daughter if she were incarcerated. Her mother, who had been largely responsible for the child, was depressed by her husband's incarceration and without an income.

  2. Physical Condition

  In 1993, when the defendant was seventeen years old, she was involved in a physical confrontation with a twenty-five year old woman. The woman, previously unknown to her, and for no apparent reason, threw acid at defendant, causing severe facial burns. Defendant was treated at the Cornell Burn Unit in New York City for the following three months. While she remains an attractive woman, she still bears deforming scars on her face and neck. She has also had a history of asthma and migraine headaches.

  3. Employment

  From September 2001 to October 2001, the defendant was employed by Lefta Check Cashing in Brooklyn, New York, as a teller. She was earning a gross income of $300.00 per week, before being fired for improperly approving two cashed checks. The manager of Lefta indicated that the defendant was responsible for approximately a $10,000.00 loss to the business. From October 2001 to January 2002 she received unemployment compensation and public assistance.

  At the time of the 2003 sentence, the defendant had been employed for more than a year and a half as a console monitor for a security company in the Bronx at $11.65 an hour. Her duties included performing surveillance of apartment buildings to ensure residents' safety. Conviction resulted in her being discharged.

  D. Downward Departure As noted, at the September 2003 sentencing hearing Pretrial Services reported favorably on defendant's work, home life, and other indicia of rehabilitation. The court concluded that the defendant had displayed extraordinary rehabilitation under the Guidelines and, for that reason, granted a downward departure of five levels. An offense level of 8, criminal history category I, permitted a nonincarceratory probationary sentence. Imposed was a sentence principally of three years probation and restitution of $148,814.00.

  E. Appeal and Remand

  On appeal the government argued that the district court erred in departing downward on the ground of extraordinary rehabilitation.

  Pursuant to what was then the recently enacted Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, Pub.L. No. 108-21, 117 Stat. 650 (2003), the district court's downward departure was reviewed de novo. The United States Court of Appeals for the Second Circuit, concluded:
[W]e must ascertain whether the defendant's rehabilitation is truly extraordinary. However, in the instant case, the district court failed to detail its reasons or factual basis for finding the defendant's rehabilitation to be extraordinary. As a result, we are unable to determine whether or not the district court erred in downwardly departing. Accordingly, we VACATE the district court's sentence and REMAND "for further development of the record so that the district court can make findings of fact as to the existence of [the defendant's] extraordinary rehabilitation."
Mandate, 03-1637 (emphasis in original) (citation omitted). The mandate was issued on March 2, 2005 and filed in the Clerk's Office of the Eastern District of New York on March 14, 2005.

  F. Booker

  Before the mandate was issued, the United States Supreme Court decided United States v. Booker, 125 S.Ct. 738 (Jan. 12, 2005). In addition to making the Sentencing Guidelines advisory rather than mandatory, Booker invalidated the de novo standard of review set forth in Public Law Number 108-21. See id. at 765-66 ("In 2003, Congress . . . add[ed] a de novo standard of review for departures and insert[ed] cross-references to § 3553(b)(1). In light of today's holding, the reasons for these revisions — to make Guidelines sentencing even more mandatory than it had been — have ceased to be relevant. The pre-2003 text directed appellate courts to review sentences that reflected an applicable Guidelines range for correctness, but to review other sentences — those that fell `outside the applicable Guideline range' — with a view toward determining whether such a sentence `is unreasonable, having regard for . . . the factors to be considered in imposing a sentence. . . .' In other words, the text told appellate courts to determine whether the sentence `is unreasonable' with regard to § 3553(a). Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable.") (emphasis in original).

  The mandate of the Court of Appeals did not reflect consideration of the decision of the Supreme Court in Booker, or its own decision on the procedural impact of Booker in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). Defense counsel reported seeking an amendment of the mandate from the Court of Appeals to reflect the sea change in sentencing law. No decision from the Court of Appeals on the effect of Booker having been received, out of concern for the rights and psychic well-being of the defendant over whom a potential prison term has been hanging for years, the court held the mandated hearing.

  III. Law

  A. Rehabilitation as an Aim of Sentencing The remand requires consideration of the following questions, among others: What is rehabilitation? Is the aim of rehabilitation to improve or restore? What makes rehabilitation "extraordinary"?

The mysteries of the human condition are nowhere more apparent that in our criminal courts, where judges must struggle daily with remarkably profound and often unanswerable questions. What is the nature of good and evil? Why do people commit crimes? Why do we all, as David Hume once wrote, contain a particle of the dove next to elements of the wolf and the serpent? Why do the wolf and serpent prevail in some of us so often and so violently, yet in others of us so seldom and so mildly? Looming in the foreground is yet another profound question, one that has been the subject of jurisprudential debate, and great confusion, since the dawn of law: Why do we punish wrongdoers?
. . . .
Each of us hears conflicting and often inarticulate inner voices, one asserting that even the most contrite and reformed sinners must still pay some price for their sins, the other calling for mercy and forgiveness and asking us to empathize with the criminal. So it is not surprising that collectively we struggle to balance the form and amount of punishment that is appropriate, a struggle that lies at the heart of what we mean by "justice."
Morris B. Hoffman & Timonthy H. Goldsmith, The Biological Roots of Punishment, 1 OHIO ST. J. CRIM. LAW 627, 627, 638 (2004).

  These questions implicate the whole of sentencing theory and practice. Any decision concerning rehabilitation will necessarily be balanced by the statutory objectives of retribution, specific and general deterrence, as well as a consideration of the severity of the offense and the personal characteristics of the human being facing sentence. See 18 U.S.C. § 3553(a); United States v. Blarek, 7 F. Supp. 2d 192, 200 (E.D.N.Y. 1998) (discussing the philosophical principles underlying section 3553(a): "Ascertaining priorities among these potentially conflicting notions has long been a point of contention amongst legislators, scholars, jurists, and practitioners. Somewhat oversimplifying, there are two basic camps. Retributivists contend that `just deserts' are to be imposed for a crime committed. Utilitarians, in their various manifestations, suggest that penalties need to be viewed more globally by measuring their benefits against their costs. The debate between the desert justification and the various utilitarian justifications such as deterrence, incapacitation, and rehabilitation has continued to divide criminal law thinkers. Implied in this debate are questions about our basic values and beliefs[.]") (internal quotation omitted).

  The retributive position "holds . . . that man is a responsible moral agent to whom rewards are due when he makes right moral choices and to whom punishment is due when he makes wrong ones." HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 9 (1968); see also PETER FRENCH, THE VIRTUES OF VENGEANCE x (2001) ("It is fashionable to describe one's theory of punishment or justice as prohibiting revenge or as definitely not countenancing vengeance. Vengeance, we are usually assured . . . is impermissible. After all, bearing up under oppression and victimization, turning the other cheek, is the antithesis of revenge, and only G[*]d could be both pure enough and knowledgeable enough to administer vengeance in a morally fitting way. Leave it to heaven. Perhaps, but if G[*]d can play the part of the avenger, then vengeance cannot be all that bad. At least it cannot be evil per se to desire it or, perhaps, to engage in it. And what if there is no G[*]d or morally ordered universe, or if G[*]d has disengaged from the business of empowering morality?"); Chaim Povarsky, Free Will and Intent in a Pressing Setting — Moral and Legal Responsibility: A Philosophical, Jewish and American Legal Perspective, JEWISH LAW REPORT 7 (Dec. 2004) ("According to the Bible, human beings are the only creatures in the universe that were endowed with the power of choice, that is, the ability to distinguish and choose between good and evil, right and wrong, just and unjust, fair and unfair. Animals do not have this power, but rather they act upon their instincts. Maimonides states: `Free will is granted to all men. If one desires to turn himself to the path of good and be righteous, the choice is his. Should he desire to turn himself to the path of evil and be wicked, the choice is his.'").

  "To the retributive view there has always been opposed one that we may characterize as utilitarian: it holds that the purpose of the criminal law is to prevent or reduce the incidence of behavior that is viewed as antisocial." PACKER, supra, at 11. See also MARKUS D. DUBBER AND MARK G. KELMAN, AMERICAN CRIMINAL LAW: CASES, STATUTES AND COMMENTS 1 (2005) ("Positive retributivism considers the offender's desert a necessary and a sufficient precondition of punishment; negative retributivism considers desert only a necessary precondition. Consequentialism comes in several varieties. `Crime control' tends to be the end for the sake of which punishment is justified on consequentialist grounds. The various consequentialist theories differ on just how crime is to be prevented. Rehabilitation prevents crime by curing the offender of her abnormal criminal propensities, for her own and the community's sake. Incapacitation prevents the abnormally dangerous offender from committing crime, not by curing her, but by making it impossible for her (or at least limiting the circumstances in which she can) act on her tendencies. And deterrence prevents crime by scaring the offender away from future crime (specific deterrence) or by making an example of the offender to others, thus scaring them away from crime (general deterrence)."); MARTHA C. NUSSBAUM, HIDING FROM HUMANITY: DISGUST, SHAME, AND THE LAW 246 (2004) ("[W]hatever penalties we choose, our focus should be on the future, on reform and reintegration [into society]."). Section 3553(a) of title 18 of the United States Code, mandating consideration of the personal characteristics of the person facing sentence and the need to consider rehabilitation, invites a behavioral utilitarian approach:
The [modified] behavioral position is considerably more complex than the retributive position. Its four principal bases can, however, be stated here. First, free will is [not absolute], because human conduct is [powerfully influenced] by forces that lie beyond the power of the individual to modify. Second, moral responsibility, accordingly, is [not absolute], because blame cannot be [clearly] ascribed for behavior that is [significantly] conditioned [by environmental forces]. Third, human conduct, being [somewhat] causally determined, can and should be scientifically studied and controlled. Fourth, the function of the criminal law should be purely and simply to bring into play processes for modifying the personality, and hence the behavior, of people who commit antisocial acts; or, if all else fails, to restrain them from committing offenses by the use of external compulsion (e.g., confinement).
PACKER, supra, at 12. Cf. United States v. Blarek, 7 F. Supp. 2d 192, 200 (E.D.N.Y. 1998) ("In the nineteenth and most of the twentieth century American prison and punishment system reforms were designed primarily to rehabilitate the prisoner as a protection against further crime."); DOUGLAS G. MORRIS, JUSTICE IMPERILED 20-21 (2005) (discussing shifting emphasis in Europe at the beginning of the twentieth century from "fitting the punishment to the crime without regard to the person of the offender" to "modify[ing] the behavior of individuals to prevent them from committing further crimes[, which] required attention to both the personality and the environment of the individual.").
  A rehabilitative design takes into account the fact that a person's actions may reflect genetics, social advantage, and deprivation as well as free will, merit and culpability. In evaluating how best to approach reformation of a defendant, some appreciation of the causes of criminal behavior is desirable. The disadvantage, dysfunction, and toxicity of a defendant's development is substantially causative. The following excerpt provides a still fairly accurate narrative of variations in socioeconomic deprivation in New York City, reflected in crime statistics:
The Number 6 train from Manhattan to the South Bronx makes nine stops in the 18-minute ride between East 59th Street and Brook Avenue. When you enter the train, you are in the seventh richest congressional district in the nation. When you leave, you are in the poorest.
The 600,000 people who live here and the 450,000 people who live in Washington Heights and Harlem, which are separated from the South Bronx by a narrow river, make up one of the largest racially segregated concentrations of poor people in our nation.
Brook Avenue, which is the tenth stop on the local, lies in the center of Mott Haven, whose 48,000 people are the poorest in the South Bronx. Two thirds are Hispanic, one third black. Thirty-five percent are children. In 1991, the median household income of the area, according to the New York Times, was $7,600.
. . . .
Crack-cocaine addition and the intravenous use of heroin, which children I have met here call "the needle drug," are woven into the texture of existence in Mott Haven. Nearly 4,000 heroin injectors, many of whom are HIV-infected, live here. Virtually every child . . . knows someone, a relative or neighbor, who has died of AIDS, and most children know many others who are dying now of the disease. . . .
Depression is common among children in Mott Haven. Many cry a great deal but cannot explain exactly why.
Fear and anxiety are common. Many cannot sleep.
Asthma is the most common illness among children here. Many have to struggle to take in a good deep breath. Some mothers keep oxygen tanks, which children describe as "breathing machines," next to their children's beds.
. . . .
In humid summer weather, roaches crawl on virtually every surface of the houses in which many of the children live. Rats emerge from holes in bedroom walls, terrorizing infants in their cribs. . . .
In speaking of rates of homicide in New York City neighborhoods, the Times refers to the streets around St. Ann's as "the deadliest blocks" in "the deadliest precinct" of the city. . . .
In 1991, 84 people, more than half of whom were 21 or younger, were murdered in the precinct. A year later, ten people were shot dead on a street called Beekman Avenue. . . . On Valentine's Day of 1993, three more children and three adults were shot dead on the living room floor of an apartment six blocks from the run-down park that serves the area.
In early July of 1993 . . . three more people were shot in 30 minutes in three unrelated murders in the South Bronx. . . . A week later, a mother was murdered and her baby wounded by a bullet in the stomach while they were standing on a South Bronx corner. Three weeks after that, a minister and elderly parishioner were shot outside the front door of their church, while another South Bronx resident was discovered in his bathtub with his head cut off. In subsequent days, a man was shot in both his eyes and a ten-year-old was critically wounded in the brain.
What is it like for children to grow up here? What do they think the world has done to them? Do they believe that they are being shunned or hidden by society? If so, do they think that they deserve this? What is it that enables some of them to pray? When they pray, what do they say to G[*]d?
JONATHAN KOZOL, AMAZING GRACE 3-5 (Perennial ed. 2000). See id. at 143 ("Nearly three quarters of the inmates of state prisons in New York come from the same seven neighborhoods of New York City: the South Bronx, Harlem, Brownsville, Bedford-Stuyvesant, South Jamaica, East New York, and the Lower East Side of Manhattan.").

  Non-socioeconomic elements of a defendant's personal history, such as, in the instant case, a dysfunctional family with a criminal father, a fagin, directing his children into crime, are also important in understanding the criminal conduct of a specific person and future prevention.

  A rehabilitative framework is obviously in tension with a purely retributive or general deterrence model. It may be more likely that the person with a deprived background will fall into crime. Under a purely retributive or general deterrence model, a person whose identity has been shaped by a poor environment through no fault of her own should be punished in the same manner and to the same extent as a person who has been afforded every privilege, wants for nothing, and turns her advantage to criminal efforts. Pure retribution, or "just deserts," ignores the handicapping effect of social, economic, and natural deprivation.

  B. Extraordinary Rehabilitation under the Sentencing Guidelines

  Courts have recognized that while the Federal Sentencing Guidelines are predicated primarily on mechanically defined "just deserts" based on the nature of the crime, "extraordinary rehabilitation" may entitle a defendant to a lesser sentence. See, e.g., United States v. Bryson, 163 F.3d 742, 746 (2d Cir. 1998) ("The Sentencing Guidelines provide a framework applicable to a `heartland' of typical cases embodying the conduct that a given guideline describes. A sentencing court dealing with an `atypical' case, therefore, need not be rigidly constrained by the proscriptions of the Guidelines. . . . The Guidelines do not enumerate all of the factors that may individually or collectively render a case `atypical.' . . . This Court has held that a sentencing judge may exercise discretion and depart from the applicable guideline range in light of a defendant's efforts toward rehabilitation, provided those efforts are extraordinary.") (emphasis added); see also United States v. Rosado, 254 F. Supp. 2d 316, 321 (S.D.N.Y. 2003) ("Since rehabilitation may not be a basis for incarceration but must be considered as a basis for sentencing, Congress must have anticipated that sentencing judges would use their authority, in appropriate cases, to reduce a defendant's sentence to permit him to continue his rehabilitation in the most effective manner.") (internal quotation omitted).

  In considering the question of what constitutes "extraordinary rehabilitation," the Court of Appeals for the Second Circuit has held that the analysis of the "starting point" — depravity or its lack at the time of the individual offender's criminal conduct — is required. See, e.g., Bryson, 163 F.3d at 748-49 ("Much depends on the baseline from which an individual's extraordinary rehabilitation can be measured. The achievement of the ordinary responsibilities of citizenship, such as regular employment and support of dependants may, depending on the starting point of rehabilitation, be sufficient if that achievement is the product of substantial commitment sustained over time.") (emphasis added). Pre-Booker, this "starting point" or baseline approach under the Guidelines, as interpreted by the Court of Appeals, typically focused on the seriousness of the criminal history rather than on the socioeconomic, psychological, and other characteristics of the offender.

  The cases in the Court of Appeals for this circuit cannot be satisfactorily synthesized because, first, it is almost impossible to glean their subtleties from the opinions or even the full records, second, there is some variation in the judges' empathy and experience, and, third, there is an almost infinite variety of backgrounds among defendants. See, e.g., United States v. Normandeau, No. 02-cr-1587, 63 Fed. Appx. 573, 574-75 (2d Cir. Apr. 28, 2003) (unpublished) ("In his pre-sentencing submission to the District Court, [the defendant] sought, inter alia, a downward departure for extraordinary rehabilitation. In its reply, the government objected to such a departure, arguing that [his] completion of a treatment program while incarcerated was not extraordinary. At [defendant's sentencing hearing] Dr. Lisa Marsch, a psychologist with expertise in the treatment of opiate addiction, testified at length about [defendant's] drug history. . . .") (emphasis added). But see United States v. Brady, No. 04-cr-0729, 2005 WL 1706509 (2d Cir. July 22, 2005) (approving in part a downward departure after a finding that defendant suffered extraordinary childhood abuse that created a mental or emotional condition which caused her to commit the crime of conviction); United States v. Sherry, No. 03-cr-1166, 107 Fed. Appx. 253, 259 (2d Cir. Aug. 17, 2004) (unpublished) (affirming refusal to find rehabilitative efforts extraordinary based in part on district court's finding that the criminal acts were undertaken from a "starting place" of "reasonable middle-class circumstances," "good education," "a supportive family," and "several good jobs.") (citation omitted), vacated by 125 S.Ct. 1677 (Mar. 21, 2005) (remanding "for further consideration in light of [Booker]"); United States v. Mehta, 307 F. Supp. 2d 270, 275 (D. Mass. 2004) ("It is not at all uncommon in sentencing to put the crime in the context of the defendant's life."); United States v. Blake, 89 F. Supp. 2d 328, 332 (E.D.N.Y. 2000) ("In determining a sentence, it is worth attempting to understand (as best one can) what set a defendant upon her illegal course. While it does not excuse her conduct, [a defendant's] difficult background and misplaced — even sick — reliance on men critical to her life provide a useful context.").

  For an individual with a lengthy or serious criminal past, the achievement of a crime-free life could be seen as a radical transformation constituting extraordinary rehabilitation. Rosado, for instance, involved the arrest of a member of a gang that distributed large quantities of crack, powder cocaine, and heroin in the Bronx. 254 F.Supp. 2d at 317. Judge Scheindlin, in evaluating the question of the defendant's post-arrest rehabilitation, reasoned:
While in jail, defendant successfully completed a shock incarceration program and obtained his high school equivalency diploma. He also appears to have given up drugs, found employment, and begun to support his children. He has severed his ties with his drug-dealing friends. After considering all of the circumstances here, including defendant's age, drug and alcohol rehabilitation, successful completion of the state's shock incarceration program, obtaining a GED and certificates of achievement earned while in state custody, gainful employment, an apparent break with his criminal comrades and a renewed commitment to his family, I conclude that defendant should receive a two-level departure for extraordinary post-offense rehabilitation.
Id. at 321 (emphasis added).

  More difficult for the courts before Booker were cases where a defendant's starting point did not hover at the nadir of civilized social development.

A downward departure based on post-sentencing rehabilitation is only available when a defendant's rehabilitation, compared to his or her "starting point," is sufficiently extraordinary to take the defendant out of the heartland of cases contemplated by the Sentencing Commission in formulating the Guidelines. . . . After his arrest, [defendant] ceased using marijuana, participated in a substance abuse program, took narcotics tests, and maintained gainful employment. All of these were conditions of [his] release, and indeed are typical conditions for the release pending trial of a defendant charged with a narcotics offense. We see no basis on this record for finding [defendant's] rehabilitation "extraordinary."
We do not thereby hold today that compliance with the conditions of pre-trial release cannot be evidence of extraordinary rehabilitation, or that compliance alone can never justify such a downward departure. We do conclude, however, that [defendant's] compliance with his conditions of pre-trial release here, compared to his "starting point," was insufficiently extraordinary to take him out of the heartland of cases contemplated by the Sentencing Commission in formulating the guidelines.
United States v. Middleton, 325 F.3d 386, 389-90 (2d Cir. 2003) (emphasis added). See also United States v. Khaykin, No. 02-cr-603-01, 2003 WL 22772394, at *3 (S.D.N.Y. 2003) ("[Defendant's] rehabilitative efforts are not so extraordinary as to warrant a downward departure. [He] did not live a life of crime prior to this offense; he had only one prior conviction, for shoplifting, in 1997. His efforts in overcoming a two-year drug addiction are commendable, but not sufficient to merit a sentencing departure.") (emphasis added). Perhaps because of the difficulty of the task, the [Court of Appeals for the First Circuit] has mainly defined extraordinary rehabilitation by noting what it is not. In effect, case after case announces: No, that's not it, nor that, nor that . . . [.]
To be sure, it may be inevitable that appellate courts approach Guideline interpretation this way — defining when the standard is not met. After all the [Court of Appeals] sees only a small percentage of the cases that the district court reviews. The [court] reviews only those cases in which a district court has decided to depart, a fraction of the total number of cases, and then only those that the government chooses to appeal, a smaller number still. Moreover, the sampling of cases that the Court of Appeals receives are typically those that district courts have deemed "extraordinary." As a result, the [Court of Appeals] is not in a position to see the true "heartland" of cases that come through the courts. An individual case that stands out from the class of cases before a district court might seem humdrum when compared to the more limited and exclusive corpus of "extraordinary" cases that are actually appealed.
. . . It is [not enough] to intone these words "extraordinary rehabilitation" over and over again, when what we really mean is: Never.
United States v. Perella, 273 F. Supp. 2d 162, 165-66 (D. Mass. 2003) (emphasis altered).

  The obvious anomaly under the Guidelines as some interpreted them — that people with relatively crime-free backgrounds could almost never show extraordinary rehabilitation though their post-crime conduct was blameless — was not lost on many sentencing judges who tried, usually with little success, to base downward departures on the concept of "aberrant" behavior. See U.S.S.G. § 5K2.20(b) ("The court may depart downward under this policy statement only if the defendant committed a single criminal occurrence or single criminal transaction that (1) was committed without significant planning; (2) was of limited duration; and (3) represents a marked deviation by the defendant from an otherwise law-abiding life."); United States v. Castellanos, 355 F.3d 56, 58-59 (2d Cir. 2003) ("The Sentencing Commission adopted this formulation of section 5K2.20 by amendment in November 2000, responding to a circuit split regarding the appropriate legal standard for determining whether a defendant's offense constituted aberrant behavior. A majority of circuits had limited the aberrant behavior departure to single acts of spontaneity and thoughtlessness. A minority of circuits took a broader approach.").

  In cases where the criminal records were not extraordinarily serious, but where the conduct was clearly not "aberrant," judges struggled with the question of what might amount to extraordinary rehabilitation; they often sought to identify extra facts regarding the rehabilitation, rather than the criminal record, that might distinguish the case from ordinary rehabilitation. For instance, in one case, the United States Court of Appeals for the Second Circuit reasoned:
[Defendant's] work helping new inmates at the halfway house, and his regaining of the trust of his employer, do not establish "extraordinary" rehabilitation.. . . . Such a departure was affirmed in United States v. Workman, 80 F.3d 688 (2d Cir. 1996), where, before he was arrested, the defendant voluntarily left a narcotics conspiracy, joined the military and completed service honorably. And in United States v. Cornielle, 171 F.3d 748 (2d Cir. 1999), we agreed with the district court that extraordinary rehabilitation, combined with other factors, could justify a one-level downward departure for a former member of a narcotics and fraud conspiracy, who, in the four years between the commission of the crime and his arrest, had returned to college, was maintaining a high grade-point average, and was working part time as a volunteer counseling persons infected with HIV.
United States v. Carpenter, 320 F.3d 334, 343 (2d Cir. 2003) (emphasis added). See also United States v. Woodley, 344 F. Supp. 2d 274, 282 (D. Mass. 2004) (finding that "[t]he defendant went beyond merely rehabilitating himself, but reached out to others to share his experiences with them and to try to deter them from doing the same thing" by volunteering in a program that taught children about staying out of jail) (emphasis added); United States v. Perella, 273 F. Supp. 2d 162 (D. Mass. 2003) (finding extraordinary rehabilitation where defendant had previously struggled with drug addiction, including numerous relapses, but suddenly began attending alcoholics and narcotics anonymous meetings and other therapy sessions five times a week, helping other addicts, and lecturing young people about the dangers of substance abuse); Normandeau, 63 Fed. Appx. at 575 ("[The psychologist] also explained that [the defendant's] successful completion of the drug treatment program at the Addison County jail was particularly surprising because the inmates have to quit without the benefit of any of the available medications that treat opiate dependence. . . . [The court also found that the defendant] volunteers 10-12 hours a day helping in the kitchen with meal preparation, serving and clean-up. . . . In addition, the District Court indicated that it was `frankly . . . impressed' by the letter that [defendant] submitted to the court regarding his backround, heroin addiction, rehabilitation and prospects for continued abstinence."); United States v. Bradstreet, 207 F.3d 76 (1st Cir. 2000) (finding extraordinary post-sentencing rehabilitation, which would now be unavailable under section 5K2.19 of the Guidelines, where defendant began tutoring other prisoners, teaching adult education classes in prison, serving as a prison chaplain's assistant and the clerk of a prison parenting program); United States v. DeShon, 183 F.3d 888 (8th Cir. 1999) (finding extraordinary rehabilitation where defendant radically altered his life, attending church four times a week, receiving counseling, and working over seventy hours a week to catch up on bills).

  While, as already noted, the cases are difficult to rationalize, the Court of Appeals for the Second Circuit has discouraged downward departures for extraordinary rehabilitation that lead to substantially shorter periods of incarceration. See, e.g., United States v. Boltz, No. 03-cr-1527, 88 Fed. Appx. 471, 473-74 (2d Cir. Mar. 3, 2004) (unpublished) ("It is certainly true that a defendant's rehabilitative efforts can, in the appropriate case, warrant a downward departure. We have emphasized, however, that such cases are `rare.' . . . Although there was evidence submitted in this case [in support of extraordinary rehabilitation] the District Court provided neither an oral nor a written statement of the reasons or findings that persuaded it to find that [defendant's] rehabilitation was `extraordinary.' As such, we are unable to review, in any meaningful sense, whether the District Court erred by granting [defendant a twelve-level] extraordinary-rehabilitation departure.") (internal quotation omitted); United States v. Crispo, No. 03-cr-1114, 75 Fed. Appx. 21, 23 (2d Cir. Sept. 10, 2003) (unpublished) (affirming sentence imposed at defendant's resentencing, where "the district court granted a one-level downward departure for extraordinary rehabilitation, but imposed a two-level upward departure based on [defendant's intent]."); United States v. Carpenter, 320 F.3d 334, 343 (2d Cir. 2003) ("Rehabilitation, even if `genuine,' is not ipso facto sufficient to justify a departure. It must be so `extraordinary' as to not have been taken into account by the Sentencing Commission in formulating the Guidelines."); United States v. Blount, 291 F.3d 201 (2d Cir. 2002) (affirming defendant's sentence of 292 months' incarceration, to be followed by a 10-year period of supervised release, which included a two-level downward departure for extraordinary rehabilitation); United States v. Alvarez, No. 01-cr-1283, 29 Fed. Appx. 659, 661 (2d Cir. Feb. 5, 2002) (unpublished) (affirming sentencing court's denial of downward departure on ground of extraordinary rehabilitation and noting that "[i]t is well established that we cannot review a district court's discretionary refusal to depart unless that decision was made in violation of law or resulted from a misapplication of the Guidelines.") (internal quotation omitted); United States v. Cabrera, No. 00-cr-1365, 4 Fed. Appx. 55, 56 (2d Cir. Feb. 16, 2001) (unpublished) ("[Defendant] appeals from the district court's denial of his requests for downward departures based on aberrant behavior and extraordinary rehabilitation. Because we have no authority to review the court's exercise of discretion, we dismiss the appeal."); Pughe v. United States, No. 04-cr-1507, 4 Fed. Appx. 65, 66 (2d Cir. Feb. 16, 2001) (unpublished) ("This case is in all relevant respects identical to United States v. Bryson, 163 F.3d 742 (2d Cir. 1998), in which we held that a departure . . . on rehabilitation grounds was not within [the court's] discretion. As in Bryson, the ruling below reflects `unhappiness with the rigidity of the guidelines' rather than an evidence-based finding of `extraordinary rehabilitation.' But, as our cases have emphasized, only the latter can support a departure."); United States v. Kelly, No. 00-cr-1212, 2 Fed. Appx. 209 (2d Cir. Feb. 6, 2001) (unpublished) (affirming defendant's sentence on defendant's appeal where the district court departed on the grounds of extraordinary rehabilitation and imposed a sentence of 180 months of incarceration on the first charge, 60 months on the second charge, and 180 months on the third charge, to run concurrently); United States v. Matera, No. 00-cr-1048, 234 F.3d 1263, at *1-2 (2d Cir. Oct. 18, 2000) (unpublished) ("Both defendants [— associates in the Colombo crime family —] requested downward departures. Matera requested one due to extraordinary family circumstances. Ferrara requested one for a combination of extraordinary family circumstances and extraordinary rehabilitation. The district court granted downward departures for both appellees on the grounds for which they were requested. . . . . This case is close, but, in the end we believe that the district court did not abuse its discretion; we therefore affirm its decision to grant downward departures as to both appellees."); United States v. Bryson, 229 F.3d 425, 425-26 (2d Cir. 2000) ("The United States appealed [a sentence which included a downward departure on the grounds of extraordinary rehabilitation.] In December 1998, this Court vacated the district court's decision on the ground that the downward departure was not within the district court's discretion. This Court found that there was no evidence of extraordinary rehabilitation required to merit such a downward departure. Accordingly, we remanded the case to the district court to `resentence [defendant] according to his original offense level of 31.'. . . . The district court understandably over-read our mandate. We concluded that the record and the findings in the district court were wholly insufficient to support a downward departure for an extraordinary rehabilitation. The terms of the remand . . . did not preclude a departure based on intervening circumstances. . . . We did not foreclose the possibility — however remote — of a rehabilitation that might occur between our decision and the resentencing. The Court has consistently held that a court's duty is always to sentence the defendant as he stands before the court on the day of sentencing."); United States v. Ellison, No. 00-cr-1114, 225 F.3d 646, at *2 (2d Cir. Aug. 21, 2000) (unpublished) (affirming district court's denial of downward departure where district court stated that "the fact that he has got a number of commendations for work he had performed on a couple of isolated instances, I just don't think rises to the level of extraordinary rehabilitation."); United States v. Tenzer, 213 F.3d 34, 43 (2d Cir. 2000) (remanding for resentencing based on clear risk that sentencing judge may not have fully understood authority to depart, where defendant sought a downward departure in part on the basis of extraordinary rehabilitation: "It is entirely consistent with the precedent in this Circuit granting district court judges discretion in sentencing to allow this district court judge to depart downwardly if he finds that this case is sufficiently unusual or that it falls out of the heartland.") (emphasis added); United States v. Cornielle, 171 F.3d 748, 753-54 (2d Cir. 1999) ("The sentencing court . . . stated that although [defendant's] request for a downward departure based on extraordinary rehabilitation presented a close question, a departure exclusively on this basis was not warranted in light of all the facts. Such a departure would be within the court's power, since rehabilitation, as we have had occasion to say with regard to a defendant's drug rehabilitation efforts, may justify a downward departure from the sentencing guidelines range. . . . . Nonetheless, the court found that when [defendant's] unique combination of circumstances was considered as a whole, his case warranted a one-level departure. [The district court] held that the defendant carried, albeit just barely, his burden of showing that the exceptional circumstances applicable to his particular case, including . . . rehabilitation, are `sufficiently extraordinary and sufficiently far removed from the heartland of the relevant guidelines as to warrant a modest departure.' We see no abuse of [the court's] discretion in granting only a limited downward departure."); United States v. Bryson, 163 F.3d 742, 747 (2d Cir. 1998) ("Extraordinary rehabilitation . . . is not narrowly defined or limited to cases of defendants overcoming their drug addiction. . . . . [W]hile a sentencing court may consider a broad range of information in determining whether to depart downward, it must nonetheless conclude that certain circumstances of the case are unusual enough for it to fall outside the heartland of cases in the Guideline. To resolve this question, the district court must first make a refined assessment of the many facts bearing on the outcome, informed by its vantage point and day-to-day experience in criminal sentencing. The district court has an `institutional advantage,' that is, a special competence about the ordinariness or unusualness of a particular case, which is to be accorded substantial deference by the appellate courts.") (internal quotation and citation omitted); United States v. Silvestri, No. 97-cr-1430, 165 F.3d 15, at *5 (2d Cir. Oct. 29, 1998) (unpublished) ("[Defendant] claims that we should vacate his sentence because the district court failed to consider his application for a downward departure on the ground of extraordinary post-offense rehabilitation. . . . It is evident from the record of the sentencing hearing, however, that the district court was well aware both of the full nature of [defendant's] downward departure motion and of the scope of its own authority to depart from the Sentencing Guidelines. . . . Under these circumstances, we cannot conclude that the district court gave insufficient consideration to [the] application for a downward departure on the basis of extraordinary rehabilitation."); United States v. Tejeda, 146 F.3d 84, 86, 88 (2d Cir. 1998) ("The district court rejected departure on the bases of extraordinary family circumstances and extraordinary rehabilitation. However, the district court did grant a downward departure. . . . [T]he district court incorrectly applied the Guidelines by downwardly departing based on three impermissible factors (previous lenient sentences, length of co-defendant's sentence, and small amount of controlled substance) and two factors already considered by the Sentencing Commission in establishing the Guidelines range (family circumstances and deportation). We cannot conclude that the district court's error was harmless inasmuch as no permissible ground for departure remains. In light of the foregoing, we conclude that the district court abused its discretion; accordingly, we vacate the judgment and remand for resentencing.").

  C. Extraordinary Rehabilitation and Ordinary People

  A question posed by the instant case is how a sentencing judge may achieve the objectives of sentencing when a defendant has led a relatively crime-free life, falls into criminal conduct, and returns to a law-abiding life when confronted by the law's terrors. Can such rehabilitation ever be extraordinary?

  At oral argument in the instant case members of a panel of the United States Court of Appeals for the Second Circuit recognized the dilemma inherent in the rehabilitation issue under the Guidelines:
[THE GOVERNMENT]: The defendant was a financial criminal. She committed the crime while she had a job. For her to claim that she continued to have a job doesn't demonstrate any relevant source of rehabilitation.
THE COURT: Could a non-addict, white collar criminal ever satisfy the requirement of extraordinary rehabilitation?
. . . .
THE COURT: It sounds like the worse you are, the better the chances you'll have extraordinary rehabilitation. It's kind of an odd —
[THE GOVERNMENT]: I think that's a paradox of sentencing but yes, your Honor.
THE COURT: If you're not such a bad fellow or gal and you really are sorry, that's not going to do it.
[THE GOVERNMENT]: That's correct, your Honor.
THE COURT: She would have been better off having really done something really terrible, right, in the past, and then one could say that if we compared a baseline of having done something very terrible, that what she's done now might constitute extraordinary rehabilitation. But because of the fact . . . that basically, she had very few run-ins with the law, she finds herself not eligible for extraordinary rehabilitation, under your view.
[THE GOVERNMENT]: That's correct, your Honor, under the Court's precedent. . . .
THE COURT: These [G]uidelines are a straight jacket but you play with the cards you've got.
. . . .
THE COURT: So is the rehabilitation the fact that she's trying to develop skills to get her out from underneath the control of her father, who has obviously been an extraordinarily bad influence on her?
. . . .
[THE GOVERNMENT]: . . . She has continued employment; that's great. But in a financial case, in a fraud case, it's also not that unusual.
THE COURT: You can't separate — just saying — it's easier to identify extraordinary rehabilitation when you're addicted to cocaine. You get yourself into treatment, you do well and you come out clean and you stay clean for a period of time, up to the time you get sentenced. So the court says, wow, that's pretty extraordinary. This guy was hooked badly.
But this is a little bit different. She was attacking the root cause of her criminality, her dependence on her father and her cyclical unemployment. Wouldn't that be relevant for Judge Weinstein to find extraordinary [—] that her conduct juxtaposed to the way she had lived her life prior to her criminality was extraordinary in that regard?
[THE GOVERNMENT]: [S]he was not dependent on her father, except perhaps psychologically.
. . . .
THE COURT: [T]he court can't look at underlying social causes that are at play in her life to understand what she's trying to do to alter those? The court couldn't do that?
[THE GOVERNMENT]: Of course the court looks at the whole person on the date of sentencing, absolutely. But the point here is that what she was doing, her life situation in that respect, in respect of her employment or education, does not appear to have anything to do with her motivation for committing the crime.
Dec. 13, 2004 Ct. App. Tr. at 6, 7, 14, 18, 19.

  The Federal Sentencing Guidelines permit a lesser sentence upon a showing of "extraordinary rehabilitation," which, as explained above, often means turning a "bad" life into a decent, honorable, law-abiding life. For those who have led decent, honorable, law-abiding lives to the point of criminality, the Federal Sentencing Guidelines, as construed by some, offer, as already noted, the remote possibility of relief via a different path — when the defendant can show that the criminal conduct was "aberrant." The question then becomes, what of the relatively decent, generally law-abiding citizen who errs more than once, or over some extended period, but once prosecuted, is ...

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