U.S. v. Andrews, CR.SA-02-CR-258(2)FB.
| Decision Date | 28 January 2004 |
| Docket Number | No. CR.SA-02-CR-258(2)FB.,CR.SA-02-CR-258(2)FB. |
| Citation | 301 F.Supp.2d 607 |
| Parties | UNITED STATES of America, Plaintiff, v. George Lawrence ANDREWS, Defendant. |
| Court | U.S. District Court — Western District of Texas |
Thomas Joseph McHugh, Assistant United States Attorney, Joseph H. Gay, Jr., Assistant U.S. Attorney, San Antonio, TX, for U.S. Attorneys.
Celeste Marie Ramirez, Celeste Ramirez, Attorney at Law, Jack Carter, Federal Public Defender, San Antonio, TX, for Defendant.
OPINION SUPPORTING A DEPARTURE IN SENTENCING
"If the law supposes that ... the law is... a idiot.... and the worst I wish the law is, that his eye may be opened by experience — by experience."
Mr. Bumble CHARLES DICKENS, THE ADVENTURES OF OLIVER TWIST 327 (Country Life Press 1900) (1897).
Mr. Bumble might feel the same about the sentencing law in this case. See 18 U.S.C. §§ 3551-3673, 28 U.S.C. §§ 991-998.
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The sentencing guidelines for assessing punishments in the federal courts work reasonably well in the large percentage of cases before this Court. See also U.S. GEN. ACCOUNTING OFFICE REPORT, FEDERAL DRUG OFFENSES: DEPARTURES FROM SENTENCING GUIDELINES AND MANDATORY MINIMUM SENTENCES, FISCAL YEARS 1999-2001 (No. GAO-04-105) (Oct.2003); U.S. SENTENCING COMM'N, REP. TO CONGRESS: DOWNWARD DEPARTURES FROM THE FED. SENTENCING GUIDELINES (Oct.2003). Because of the egregious circumstances present here, twenty five years' experience on the bench in assessing and reviewing punishment teaches that fifteen months in prison for this defendant would make a laughing stock of the concept of justice. If the United States is to continue its tradition of an independent judiciary1 unfettered by the political branches, federal trial judges familiar with the facts and humanity involved in a particular case must have some modicum of discretion to depart upwardly or downwardly in those relatively rare instances where the sentencing guidelines do not work. See 2003 Year-End Report on the Federal Judiciary by Chief Justice William H. Renquist, SUPREME COURT OF THE U.S. (Public Information Office, Washington, D.C.), Jan. 1, 2004, at 2. This is one of those cases. For reasons stated below, the Court assessed a term of imprisonment of 120 months as set forth in the Court's judgment of December 23, 2003, though the maximum statutory punishment could have been 360 months. See 18 U.S.C. § 1344 (bank fraud).
Doris Ruth Carson is an elderly lady, slight in stature, who appeared to the Court to weigh perhaps a hundred pounds dripping wet. She survived the Great Depression, World War II, child birth and frugally saved as members of her generation often do for her later years so as not to be a burden on her children. But she did not financially survive the fiscal invasion and monetary assault upon her by her very own next door neighbors whom she trusted, and who repaid that trust by effectively stealing her identity, a frequent and sad commentary on modern society.2
Many of the elderly are fortunate to live next door to caring younger people who keep an eye out for their well being. Mrs. Carson's financial security blanket for her last years has been ripped asunder by her next door neighbors who kept their eyes, and hands, on Mrs. Carson's money. These diabolical crooks are Georgene Andrews and her son George Lawrence Andrews. Before this Court had an opportunity to sentence Georgene Andrews, she died and will therefore have to face whatever karmic or spiritual punishment awaits her. Perhaps Dante's Eighth Circle would be apropos. DANTE ALIGHIERI, THE DIVINE COMEDY (The Inferno) Canto XXX (1321) (falsification of coins or in this instance falsification of checks).
Defendant Larry Andrews is a strapping, six foot two inch tall 220 pound twenty eight year old who, before he was incarcerated, worked as a plumber's apprentice at his uncle's plumbing company and had minimal living expense by virtue of staying with his grandfather.
Even though defendant pleaded guilty, the Court finds he has not completely accepted responsibility:
1. Notwithstanding his youthful physical stature and ability to work and lack of any significant expenses, defendant Larry Andrews, unlike some financial crime defendants this Court has sentenced and bestowed modest downward departures upon, provided nary a thin dime nor wooden nickel in restitution to Mrs. Carson. The Court has little doubt that very capable defense counsel advised Mr. Andrews of the advisability of showing remorse through a reasonable effort to accumulate some repayment prior to sentencing.
2. During the Court's colloquy with Mr. Andrews at his guilty plea and at his sentencing, it was clear Mr. Andrews conveniently sought to use the untimely death of his mother as an opportunity to minimize his own conduct, blame it on his mother for leading him astray and wiggle out of his own responsibility. This Court is reminded of a comedian from years back, as Mr. Andrews seemed to be saying: "The Devil made me do it."3
3. Though Mr. Andrews' lips were moving with words of remorse during his sentencing, this Court observed a lack of sincerity in Mr. Andrews' demeanor. Moreover, at his guilty plea this Court asked Mr. Andrews if he knew the definition of "righteous indignation." Mr. Andrews indicated he did not, and it was clear at the subsequent sentencing date that Mr. Andrews still had not divined the meaning of the phrase. Perhaps reading this opinion will help him learn. Matthew 22:39 is also instructive. The only way Mr. Andrews could have exacerbated his crime would have been to defraud his own grandmother.
Though the Court sometimes wonders why well educated and privileged but corrupt corporate and financial criminals seem to be treated more leniently than the poor and disenfranchised under the sentencing guidelines, the Court recognizes there are consequences imposed on those defendants which in their minds at least are worse than jail; e.g. loss of mega income, removal of professional licenses and political power, forfeiture of mansions and limousines and, horror of all horrors, being booted from the country club and losing other indicia of social status. Indeed, the Court suspects some defendants would accept twice as long in prison if he or she could return to his or her previous position and lifestyle. See United States v. Kimmel, SA-01-CR-376-FB (W.D.Tex. Aug. 13, 2002); United States v. Pettigrew, No. SA-93-CR-62(7)-EP (W.D.Tex. Feb. 23, 1998); United States v. Bustamante, No. SA-93-CR-39(1)-EP (W.D.Tex. Sept. 12, 1997). Those elements of punishment and loss are not present here.
The vast majority of departures are because of assistance to law enforcement by a defendant, first offender "safety valve" considerations and United States/Mexico border cases involving deportation factors and enormous caseloads. U.S. GEN. ACCOUNTING OFFICE REPORT, FEDERAL DRUG OFFENSES: DEPARTURES FROM SENTENCING GUIDELINES AND MANDATORY MINIMUM SENTENCES, FISCAL YEARS 1999-2001 (No. GAO-04-105) (Oct.2003) (); U.S. SENTENCING COMM'N, REP. TO CONGRESS: DOWNWARD DEPARTURES FROM THE FED. SENTENCING GUIDELINES 31, 59, 60 (Oct.2003) (concluding downward departure rate was 18.1 percent in fiscal year 2001, and approximately forty percent of downward departures granted in 2001 were government initiated; if all government initiated downward departures were excluded, departure rate would be 10.9 percent).
The minuscule number of judge driven departures by this Court includes upward punishment in United States v. Cerda & Lopez, No. SA-01-CR-643-FB (W.D.Tex. July 7, 2002), aff'd, No. 02-50634 (5th Cir. April 23, 2003) and United States v. Delossantos, No. SA-01-CR-240(1)-FB (W.D.Tex. Aug. 22, 2002), aff'd, 85 Fed.Appx. 398, 2004 WL 96778 (5th Cir.2004), and downward adjustment in United States v. Bart, 973 F.Supp. 691 (W.D.Tex.1997) (), and United States v. Navarro, No. SA-01-CR-333 (1)-FB (W.D.Tex. Apr. 15, 2002) (no appeal by the United States). The facts here put defendant Andrews in the firmament with defendants Cerda, Lopez and Delossantos, not with defendants Bart, Stewart and Navarro.
This Court has sentenced thousands of people whose federal crime was to be the "mule" supplying America's insatiable demand for illegal substances and cheap labor, or to support their own addiction. Many are motivated by a desire to feed and provide health care for their families. One non-U.S. citizen defendant whom the Court vividly recalls had always been a productive law-abiding person until in middle age he needed $300 to buy a casket for his six year old child. Yet the sentencing guidelines required him and thousands like him to spend eighteen to thirty months in prison before deportation. Defendant Andrews' crime is far worse and deserves far more punishment than the guidelines suggest.
In addition to the Court's experience and opportunity to hear the defendant and victim and the particular facts created by Andrews' greed, as opposed to a paper record or a statistical congressional study, the Court has given due deference and consideration to applicable legislative enactments, sentencing commission pronouncements and appellate cases. See e.g., 18 U.S.C. §§ 3551-3673, 28 U.S.C. §§ 991-998 (); U.S. SENTENCING GUIDELINES MANUEL (2003) (sentencing guidelines and...
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U.S. v. Andrews
...of potential grounds for departure. The court followed its oral pronouncement of sentence with a written opinion. United States v. Andrews, 301 F.Supp.2d 607 (W.D.Tex.2004). The court first noted that the facts of Andrews's case are egregious and that a guideline sentence of 15 months "woul......