UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
July 17, 2012
UNITED STATES OF AMERICA,
WILLIAM PERKINS, ET. AL., DEFENDANT.
The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge:
By letter dated June 19, 2012, defendant William Perkins moves for a modification of the sentence imposed by the Court due to a subsequent change in defendant's family's financial circumstances. The government opposes the motion. For the reasons set forth below, defendant's motion is denied.
On November 8, 2011, defendant pled guilty under Count One of the superseding indictment to Conspiracy to Commit Mail and Wire Fraud, a Class C Felony, in violation of 18 U.S.C. §§ 1341, 1343, and 1349. On April 17, 2012, defendant was sentenced to a term of twelve months and one day of imprisonment, and three years of supervised release with special conditions, including compliance with the restitution and forfeiture orders issued by the Court.*fn1
Two months after sentence was imposed, defendant made the instant
motion for a reduction of his sentence, specifically requesting a
non-incarceration sentence due to a reduction in his wife's income
since sentence was imposed. Defendant contends that this income
reduction, along with defendant's impending incarceration*fn2
would impose an undue financial hardship on defendant's
family. Notably, the initial letter motion contained no other specific
information concerning the family's finances. The government opposed
the motion noting that the Presentence Investigation Report ("PSR")
showed that defendant's household had a negative monthly cash flow,
and the only new information provided by defendant was the wife's
income reduction. The government further noted that defendant's motion
was lacking in detail as to a quantification of the income reduction
or how defendant's absence would affect the household's total expenses
or how the family could mitigate the expenses noted in the PSR for a
one-year period. The government contends further that defendant's
financial situation was considered by the Court at the time of
sentencing. Defendant, in his reply, sought to counter the
government's arguments by providing information as to defendant's
wife's loss of income and ways in which the family has sought to
mitigate its expenses. However, this belated effort is to no avail as
defendant's motion has no merit, and the Court has no legal authority
to reduce his sentence under the circumstances herein.
As an initial matter, the Court has no authority to alter an imposed sentence, except under certain very narrow circumstances. As noted by the Second Circuit Court of Appeals in United States v. Kyles, 601 F. 3d 78 (2d Cir. 2010):
It is well-established that a district court may not alter an imposed sentence, except in narrow circumstances not present here.
See 18 U.S.C. §3582(c) (permitting modification of sentence (1) upon motion by Bureau of Prisons for reduced term of imprisonment, (2) as otherwise expressly provided by statute or Fed.R.Crim.P. 35 or (3) where Sentencing Commission subsequently reduces applicable sentencing guidelines range pursuant to 28 U.S.C. §994(o));
Fed.R.Crim.P. 35(1993) (permitting court to correct sentence upon remand from higher court, to reduce sentence on motion of government, or to correct sentence infected by clear error within seven days of imposi- tion);*fn3 Fed.R.Crim.P. 36 (permitting court to correct clerical error in judgment); see also Poindexter v. United States, 556 F.3d 87, 89 (2d Cir. 2009); United States v. Burd, 86 F.3d 285, 289 (2d Cir. 1996).
Id. at 83. None of the circumstances described above are present in this case. There is no legal authority for the Court to amend defendant's sentence under the circumstances presented here. Indeed, defendant cites none. Accordingly, defendant's motion is denied on this ground.
Moreover, as the government points out, the Court considered defendant's family's financial situation at the time of sentence. Indeed, at the sentencing hearing, the Court expressed concern that the wife's income contribution had been left out of the financial section of the PSR, thus depriving the Court of a full picture of the family's finances. Also left out of the calculation was the defendant's daughter's income. As she lives with defendant and his wife, her financial contribution to the family was important. The Probation Officer present at sentencing explained that the defendant only provided his own income contribution for a determination of his net worth and his ability to pay a fine in addition to restitution, and, since his wife was entitled to her privacy, she was not required to provide information about her finances. The Court further noted at sentencing that the family seemed to have non-essential expenses that could be trimmed in order to make ends meet. Defendant now wants the Court to consider his wife's and daughter's financial contribution to the home. While the Court is sympathetic to defendant's financial difficulties, they have not changed so dramatically or to such a degree that would warrant a reduction in defendant's sentence, which represented the bottom of his sentence guideline range of 12 to 18 months of imprisonment. Accordingly, defendant's motion is denied on this ground as well.
For the reasons set forth above, defendant's motion for a reduction of sentence due to financial hardship is denied in its entirety.
DORA L. IRIZARRY United States District Judge