15 F.3d 278 (2nd Cir. 1994), 466, United States v. Anderson

Docket Nº:466, Docket 93-1097.
Citation:15 F.3d 278
Party Name:UNITED STATES of America, Appellee, v. Cynthia Yvette ANDERSON, Defendant-Appellant.
Case Date:February 17, 1994
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 278

15 F.3d 278 (2nd Cir. 1994)

UNITED STATES of America, Appellee,


Cynthia Yvette ANDERSON, Defendant-Appellant.

No. 466, Docket 93-1097.

United States Court of Appeals, Second Circuit

February 17, 1994

        Argued Nov. 1, 1993.

        Robert C.E. Laney, Westport, CT (Stanley P. Atwood, Sherwood, Garlick, Cowell, Diviney & Atwood, of counsel), for defendant-appellant.

        Joseph W. Martini, Asst. U.S. Atty., Bridgeport, CT (Albert S. Dabrowski, U.S. Atty., Nicholas A. D'Agosto IV, Law Student Intern, of counsel), for appellee.

        Before: OAKES, KEARSE, and ALTIMARI, Circuit Judges.

Page 279

        OAKES, Senior Circuit Judge:


        On February 4, 1991, Cynthia Anderson pleaded guilty to one count of fraudulent use of a credit card in violation of 18 U.S.C. Sec. 1029(a)(2) (1988).

        The United States District Court for the District of Connecticut, T.F. Gilroy Daly, Judge, sentenced Anderson to a six-month term of imprisonment followed by a three-year term of supervised release. 1 In addition to the standard conditions of supervised release, Judge Daly imposed the following conditions:

  1. Anderson must "not commit another federal, state, or local crime and shall not illegally possess a controlled substance;"

  2. Anderson must "not possess a firearm or destructive device;" and

  3. Anderson must "participate in a Substance Abuse Program, as an in/out patient, including urinalysis, at such times and under such conditions as U.S. Probation directs."

        Anderson completed her term of imprisonment and began her period of supervised release on August 28, 1991.

        On October 20, 1992, Anderson's probation officer filed a petition for probation revocation. On January 26, 1993, Judge Daly found that Anderson had violated the three special conditions of her supervised release. For these violations, Judge Daly determined that the relevant Sentencing Guidelines policy statements suggested a sentencing range of 6-12 months. Judge Daly noted, however, that the statutory maximum for such violations was 24 months. Judge Daly then sentenced Anderson to 17 months' in prison, stating:

In my view you've made little or no effort to adjust to supervision. You've taken no responsibility regarding your obligations to the probation office of this court or to the Stamford Superior Court. You have been uncooperative with the prison officials, according to my information, as well as with the U.S. Marshal Service as recently [as] on the plane trip up here today. You need I think, in my judgment, intensive substance abuse and psychological treatment in a structured environment and, therefore, I'm going to depart upward from the policy statement recommendation to a period of incarceration of 17 months. I do it for the reasons I've just stated. And for you to enter the 1,000 hour intensive drug program at FCI Lexington, Kentucky where I hope you'll be accepted.

        Anderson filed a timely notice of appeal on February 3, 1993.


        This appeal presents the question whether, under the Sentencing Reform Act of 1984, a court may consider a defendant's need for medical care, including drug treatment/rehabilitation programs, in determining the length of time the offender shall be required to serve in prison following the revocation of supervised release.

        A. Judicial Discretion in Federal Sentencing

        The history of the Sentencing Reform Act, the Sentencing Commission, and the Sentencing Guidelines has been told often. Most recently, it has been told well. See, e.g., Kate Stith and Steve Koh, The Politics of Sentencing Reform: The Legislative History of the Sentencing Guidelines, 28 Wake Forest L.Rev. 223 (1993). Through the Sentencing Reform Act, Congress sought to respond to calls for a reduction in sentence disparity caused, allegedly, by too much judicial discretion. See, e.g., Marvin Frankel, Criminal Sentences: Law without Order (1973); Joseph C. Howard, "Racial Discrimination in Sentencing," 59 Judicature 121 (October, 1975). As many have recognized, however, the Sentencing Reform Act and its progeny have not completely realized the goal of sentence equality. Notwithstanding six editions of the Federal Sentencing Guidelines, sentence disparity remains a vexing problem. In fact, many argue that the Guidelines have increased disparity, particularly across different racial groups. See, e.g., Remarks of Jose A. Cabranes, Chief Judge, United States District Court for the District of Connecticut,

Page 280

"Reforming the Federal Sentencing Guidelines: Appellate Review of Discretionary Sentencing Decisions," University of Puerto Rico School of Law, Oct. 25, 1993, reprinted in Conn.L.Trib. at 15 (Nov. 8, 1993); Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 Yale L.J. 1681 (1992). 2

        While the Sentencing Commission has attempted to cabin judicial discretion within narrow procedural and substantive limits, it has not yet completely eradicated judicial discretion from our system. Although some appellate courts have a difficult time understanding that the exercise of judicial discretion is a necessary and important role in the administration of our criminal justice system, See Freed, supra at 1728, it is clear to others. See, e.g., United States v. Rivera, 994 F.2d 942, 950-951 (1st Cir.1993) (Breyer, C.J.) (advocating review of departures from the guidelines under a standard that affords "full awareness of, and respect for" a district court's "special competence" in determining whether "the given circumstances ... are usual or unusual, ordinary or not ordinary, and to what extent"). The fact that the Sentencing Reform Act has not completely removed judicial discretion from our system, of course, is for the best; although judicial discretion undoubtedly may result in some sentencing disparities, it is also that which enables our courts to fashion individualized sentences essential to just administration of the criminal law. Cf. Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) ("While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.") (citation omitted); Freed, supra, 101 Yale L.J. at 1753-54.

        B. Discretion over the Form and Length of Sentences

        This case calls for us to discern from the Sentencing Reform Act of 1984 and the resulting Guidelines some of the ways in which judicial discretion has been fettered and the ways in which it has not. Importantly for this case, the Guidelines provided at the time of appellant's initial sentencing, as they do now, for some judicial discretion when sentencing first offenders with relatively low offense levels. For very low offense levels (one through six), the court "may elect to sentence an offender to probation (with or without confinement conditions)." United States Sentencing Commission, Guidelines Manual, Ch. 1, Pt. A, at 1.7 (Nov.1990). 3 For slightly higher offense levels (seven through ten), a court may still elect to sentence an offender to probation but must impose certain confinement conditions. Id. At just higher offense levels (eleven and twelve), a court must impose some prison time, but may impose a period of "supervised release." Id. For first-time offenders with low offense levels, therefore, the Guidelines permit a degree of judicial discretion in choosing the appropriate form of punishment.

        Once a court has chosen a particular form of punishment, the Sentencing Reform Act and the Guidelines impose some limitations on the factors a court may consider in determining the length of the sentence. These limitations are most severe when the court chooses to impose a term of imprisonment. Specifically, under 18 U.S.C. Sec. 3582(a) (1988) and 28 U.S.C. Sec. 994(k) (1988) a court may not...

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