The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
MEMORANDUM, ORDER & JUDGMENT
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
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
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
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
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
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
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.
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.
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
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
On appeal the government argued that the district court erred
in departing downward on the ground of extraordinary
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]
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.
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.
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
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
. . . .
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 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
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
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
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
. . . 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
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
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
THE COURT: Could a non-addict, white collar criminal
ever satisfy the requirement of extraordinary
. . . .
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
. . . .
[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
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
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 ...