Second Circuit Issues Notable Decision Finding Procedural Error in Sentence of Cooperating Career Offender
One of the Second Circuit’s last published criminal decisions of 2010 is also one of the most notable sentencing decisions of the year. In United States v. Preacely, 2010 WL 5156384 (2d Cir. December 21, 2010) – a case that generated separate opinions from each member of the panel, including a dissent from Judge Raggi – the Court vacated on procedural grounds the sentence imposed on a cooperating career offender because of the district court’s possible misapprehension of its power to depart from the career offender guideline. The case is an important reaffirmation of a district court’s power – and in some cases, duty – to depart from or reject entirely the “remarkably severe” career offender guideline, and its obligation to give effect to post-offense rehabilitation.
Facts
Preacely pled guilty to crack distribution under a cooperation agreement and was released on bail. Between arrest and sentencing, he underwent “exceptional rehabilitation,” overcoming a daily marijuana habit, participating in pro-active cooperation leading to “several successful criminal investigations,” completing two work training programs, and “dramatically transform[ing] his personal life” through marriage, parenting and becoming a youth advisor for the Nassau DA’s gang prevention program.
Preacely’s presentence report determined that he was a “Career Offender” as defined under the Sentencing Guidelines, a category that resulted in a dramatic bump both of his offense level and criminal history category. His applicable guideline was therefore 188-235 months in custody. Rejecting defense counsel’s request for a sentence of time-served (about two years), EDNY Judge Platt noted repeatedly that he could not ignore the fact that he was dealing with a “Category VI” offender (the category to which career offenders are automatically assigned), and imposed a sentence of 94 months, exactly half of the low end of the recommended guideline range.
Holding
In a decision written by Ninth Circuit Judge Wallace (sitting by designation), the Court held that it was unclear from Judge Platt’s repeated emphasis of Preacely’s status as a Category VI career offender that he understood he was free to reject the career offender classification entirely. Evidence of Preacely’s rehabilitation was “particularly relevant to determining whether the Career Offender Guideline was appropriate,” but Judge Platt’s statement that he was “dealing with a Category VI career offender, regardless of all of what you said,” “reinforce[d] [the Court’s] doubt that the district judge fully understood his authority to depart from Category VI if it significantly over-represented the seriousness of Preacely’s criminal history and/or the likelihood that he will commit further crimes.” Accordingly, the Court remanded so that Judge Platt could consider that option.
Judge Lynch’s Concurrence
Adding his “common-sense” explanation for the decision, Judge Lynch described the career offender guideline as “a simplistic three-strikes policy,” which in Preacely’s case was “distinctly inflated” and “remarkably severe.” Premised on the likelihood that someone in that category “presents an extreme danger of committing more crimes,” it may not be the appropriate baseline for someone, like Preacely, who “had reformed, and no longer present[s] such a danger.” While the district court was not required to accept Preacely’s claims of reform, “[it] was required to consider those claims” and not simply to assume that he was dangerous based on his classification as a Category VI offender. Judge Lynch adds:
Judge Raggi’s Dissent
In a dissenting decision, Judge Raggi took issue with the majority’s conclusion that Judge Platt may have misunderstood his power to depart from the career offender guideline, pointing out that he acknowledged on the record that he could depart as far down as a non-custodial sentence. Even if the majority was correct that there was some ambiguity on that score, she proposed that “the proper action would be to remand for clarification, not to vacate and order resentencing.”
Comment
As the authors point out in the excellent “Deconstructing the Career Offender Guideline” (and citing the Sentencing Commission’s own research), “[s]entences recommended by the career offender guideline are among the most severe and least likely to promote sentencing purposes in the United States Sentencing Guidelines Manual.” Preacely places that harshness in a stark light – relatively minor convictions catapulted him into the category, while his stunning post-arrest transformation established that he clearly did not belong among the incorrigible offenders for whom the category was written. Indeed, the subtext of the majority’s opinions in Preacely is that his sentence – cruelly returning a newly-productive individual back to prison for at least another five years – was substantively unreasonable. Preacely is therefore an important case not just on the power to depart from the career offender guideline, but the duty to depart from it where the defendant has presented compelling evidence that it should not apply to him. More generally, the case is an important precedent on a sentencing judge’s obligation to consider a defendant’s post-offense rehabilitation efforts, and, in cases involving cooperation, to give additional credit for that aspect of cooperation that reflects the defendant’s actual or potential reformation.
Lawyers: Yuanchung Lee (Federal Defenders of New York, Inc.); AUSA Thomas Sullivan and Susan Corkery
Facts
Preacely pled guilty to crack distribution under a cooperation agreement and was released on bail. Between arrest and sentencing, he underwent “exceptional rehabilitation,” overcoming a daily marijuana habit, participating in pro-active cooperation leading to “several successful criminal investigations,” completing two work training programs, and “dramatically transform[ing] his personal life” through marriage, parenting and becoming a youth advisor for the Nassau DA’s gang prevention program.
Preacely’s presentence report determined that he was a “Career Offender” as defined under the Sentencing Guidelines, a category that resulted in a dramatic bump both of his offense level and criminal history category. His applicable guideline was therefore 188-235 months in custody. Rejecting defense counsel’s request for a sentence of time-served (about two years), EDNY Judge Platt noted repeatedly that he could not ignore the fact that he was dealing with a “Category VI” offender (the category to which career offenders are automatically assigned), and imposed a sentence of 94 months, exactly half of the low end of the recommended guideline range.
Holding
In a decision written by Ninth Circuit Judge Wallace (sitting by designation), the Court held that it was unclear from Judge Platt’s repeated emphasis of Preacely’s status as a Category VI career offender that he understood he was free to reject the career offender classification entirely. Evidence of Preacely’s rehabilitation was “particularly relevant to determining whether the Career Offender Guideline was appropriate,” but Judge Platt’s statement that he was “dealing with a Category VI career offender, regardless of all of what you said,” “reinforce[d] [the Court’s] doubt that the district judge fully understood his authority to depart from Category VI if it significantly over-represented the seriousness of Preacely’s criminal history and/or the likelihood that he will commit further crimes.” Accordingly, the Court remanded so that Judge Platt could consider that option.
Judge Lynch’s Concurrence
Adding his “common-sense” explanation for the decision, Judge Lynch described the career offender guideline as “a simplistic three-strikes policy,” which in Preacely’s case was “distinctly inflated” and “remarkably severe.” Premised on the likelihood that someone in that category “presents an extreme danger of committing more crimes,” it may not be the appropriate baseline for someone, like Preacely, who “had reformed, and no longer present[s] such a danger.” While the district court was not required to accept Preacely’s claims of reform, “[it] was required to consider those claims” and not simply to assume that he was dangerous based on his classification as a Category VI offender. Judge Lynch adds:
[I]t is extremely useful to give separate consideration to that aspect of the cooperation departure that operates as a pure reward to induce testimony, regardless of the defendant’s character, and the quite separate basis for mitigation that relates to a defendant’s potential reformation (which might be evidenced in part by his cooperation with the authorities).
Judge Raggi’s Dissent
In a dissenting decision, Judge Raggi took issue with the majority’s conclusion that Judge Platt may have misunderstood his power to depart from the career offender guideline, pointing out that he acknowledged on the record that he could depart as far down as a non-custodial sentence. Even if the majority was correct that there was some ambiguity on that score, she proposed that “the proper action would be to remand for clarification, not to vacate and order resentencing.”
Comment
As the authors point out in the excellent “Deconstructing the Career Offender Guideline” (and citing the Sentencing Commission’s own research), “[s]entences recommended by the career offender guideline are among the most severe and least likely to promote sentencing purposes in the United States Sentencing Guidelines Manual.” Preacely places that harshness in a stark light – relatively minor convictions catapulted him into the category, while his stunning post-arrest transformation established that he clearly did not belong among the incorrigible offenders for whom the category was written. Indeed, the subtext of the majority’s opinions in Preacely is that his sentence – cruelly returning a newly-productive individual back to prison for at least another five years – was substantively unreasonable. Preacely is therefore an important case not just on the power to depart from the career offender guideline, but the duty to depart from it where the defendant has presented compelling evidence that it should not apply to him. More generally, the case is an important precedent on a sentencing judge’s obligation to consider a defendant’s post-offense rehabilitation efforts, and, in cases involving cooperation, to give additional credit for that aspect of cooperation that reflects the defendant’s actual or potential reformation.
Lawyers: Yuanchung Lee (Federal Defenders of New York, Inc.); AUSA Thomas Sullivan and Susan Corkery
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