U.S. v. Bakeas, CRIM. 96-10184-NG.

• Decision Date: 14 November 1997
• Docket Number: No. CRIM. 96-10184-NG.,CRIM. 96-10184-NG.
• Citation: 987 F.Supp. 44
• Parties: UNITED STATES of America v. Peter BAKEAS.
• Court: U.S. District Court — District of Massachusetts

987 F.Supp. 44

UNITED STATES of America v. Peter BAKEAS.

No. CRIM. 96-10184-NG.

United States District Court, D. Massachusetts.

November 14, 1997.

Owen S. Walker, Federal Defender Office, Boston, MA, for Defendant.

Victor A. Wild, U.S. Attorney's Office, Boston, MA, for U.S.

MEMORANDUM AND ORDER

GERTNER, District Judge.

Peter Bakeas (hereinafter "Bakeas") is a 33-year old Greek citizen who has lived in this country for twenty years and is a lawful permanent resident. He is a first offender. He has pled guilty to embezzlement by a bank officer. All parties agree that the appropriate sentence is 12 months. Were he an American citizen he would serve those 12 months in a prison camp — a minimum security institution. Solely because he is an "alien," he would serve that sentence under far more onerous conditions. The Bureau of Prisons takes the position that aliens are ineligible for minimum security classifications, no matter how many years they have lived in this country, no matter whether or not they are under an order of deportation.

Under the circumstances, I have concluded that this case is unusual, and outside of the heartland of cases under the guidelines. Indeed, I have determined that the purposes of the guidelines will not be served at all by the usual 12 months sentence. Based on the reasons outlined below, I have departed from the guideline sentence in order to create, to the extent possible, the functional equivalent of what the guidelines sentence would have been for a United States citizen. I departed to a level 10 and sentenced Bakeas to three years probation with a host of restrictive conditions,¹ ten months of which are to be served in home detention, confined to his small, spare apartment.

I. INTRODUCTION

In 1977, Bakeas' parents established a home in West Lynn, Massachusetts, and their two sons, Bakeas and his brother, entered the public schools. Unlike his older brother who graduated from Boston University, the defendant accepted an entry-level position with the First National Bank of Greece after graduating from high school. In 1984, his parents returned to Greece.

A combination of youthful bad judgment, bad life choices, and a substantial cocaine habit led to this offense. The cocaine habit put the defendant in debt, a debt which he sought to repay through the embezzlements in this case.²

Bakeas is charged with Embezzlement by a Bank Officer, 18 U.S.C. § 656, to which he pled guilty. The funds were taken from family friends, and indeed, in one case, from a distant relative. When it was clear that he had been discovered, the defendant arranged to have the funds repaid.³ His crime was uncovered during an audit of improprieties at the First National Bank of Greece. This audit eventually led to federal indictments unrelated to this case and guilty pleas by two bank officers, including the defendant's immediate supervisor. The Presentence Report (PSR) suggests that, to a degree, the defendant's offense was made possible, if not encouraged, by the lax ethical standards at the bank.

The guidelines calculations are: base offense level of four (under United States Sentencing Commission, Guidelines Manual, § 2B1.1); plus eight for the amount of loss (between $70,000 and 120,000); plus two for more than minimal planning; plus two for abuse of trust; minus three for acceptance of responsibility. The offense level is 13. The defendant has no criminal record. The guidelines suggest a sentence of 12 to 18 months for this offense.

The PSR, to which the Government does not object, recommends a sentence of 12 months. The defendant seeks a departure to less than that amount on account of "extraordinary rehabilitation" under United States v. Sklar, 920 F.2d 107 (1st Cir.1990), and on the ground that the atmosphere at the bank makes the defendant's embezzlement "more understandable." I decline to depart on either ground. Of far greater concern to me, as I describe below, is the extent to which Bakeas' alien status — and that fact alone — will totally transform the guidelines sentence.

II. THE GUIDELINES SENTENCE

The Probation Department has recommended that Bakeas receive a sentence of 12 months, to be served in a community treatment center. Without any judicial recommendation of community confinement, Bakeas would normally be sentenced to a prison camp, a minimum security institution.

However, Probation indicated that the Bureau of Prisons has recently decided that non-citizens are ineligible to serve time in community confinement solely by reason of their non-citizen status. Because Bakeas is a lawful resident alien, the Bureau of Prisons would take the position that he is also ineligible for minimum security incarceration. He would instead be obliged to serve his time at FCI Oakdale, a Medium Security Level institution in Oakdale, Louisiana. The minimum security/camp unit in Oakdale, Louisiana, is reserved for U.S. citizens alone.⁴

Thus, while the guidelines contemplate a relatively light imprisonment, typically served in a minimum security setting or community confinement, Bakeas, because he is not a citizen, would do the same time in a substantially more punitive environment.

The defendant urges me to depart downward to reflect the substantially more severe conditions of confinement that he will face because of his non-citizen status. The Government takes two positions against departure, one general and one more specific. The Government takes the general position that I may not depart based on my analysis of the likely conditions of the defendant's confinement. That is the concern of the Bureau of Prisons, they suggest, not of this Court. The implications of this position are far reaching, and, as discussed below, in conflict with both the guidelines scheme and the case law interpreting it.

More specifically, the Government argues that I cannot take into account the fortuitous increase in the severity of Bakeas' sentence because any consideration of any effect of alienage is prohibited. This argument relies on a sweeping application of those cases in which consideration of collateral consequences of the defendant's alienage was held to be inappropriate, collateral consequences not involved in this case. It extends these holdings into a strong presumption against consideration of any consequences of alienage whatsoever.

A careful reading of the decisions of other courts that have considered the interaction of alienage and sentencing reveals that the effects of alienage should be considered no differently from any other factor that is neither prohibited nor discouraged nor encouraged: when those effects were not taken into account by the Commission in deriving the guidelines sentence, and when they are such as to make the case "unusual," departure may be appropriate.

It should also be noted that the key cases on which the Government relies predate the Supreme Court's decision in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) and this Circuit's decision in United States v. Rivera, 994 F.2d 942 (1st Cir.1993).

I find that the transformation of the nature of Bakeas' sentence from a period of community confinement to the same period of incarceration in a medium security 24-hour lockup makes this case of first-offense embezzlement a significantly "unusual" one. In addition, because Bakeas' offense in no way intrinsically involved alienage, I see no reason to believe that the Commission took this possible consequence into account in setting the relevant guidelines sentence.

III. THE DEPARTURE FRAMEWORK

This Court may depart downward if it finds that "an aggravating or mitigating circumstance exists that was not adequately taken into consideration by the Sentencing Commission in formulating the guidelines and that should result in a sentence different from that described." 18 U.S.C. § 3553(b). In such an "atypical" case, the Court may consider whether departure is warranted. USSG, Ch.1 Pt.A(b).

Early in the guidelines regime, downward departure was discouraged by the presumption that almost all possible factors must have already been taken into consideration by the Sentencing Commission, if only implicitly. See, e.g., United States v. Restrepo, 999 F.2d 640, 644 (2d Cir.1993) (deciding that alienage is by definition a characteristic that is not "ordinarily relevant," even though it was not listed as such by the Commission). However, the Supreme Court has recently reemphasized the Commission's own instructions: aside from a few prohibited factors it "does not intend to limit the kinds of factors, whether or not mentioned elsewhere in the guidelines, that could constitute grounds for departure in an unusual case." USSG Ch.1 Pt.A(b); Koon, 518 U.S. at ___, 116 S.Ct. at 2044. Indeed, the Commission expected and encouraged District Courts to depart in such cases, thereby providing the feedback essential to the further progress and refinement of the guidelines. USSG Ch.1 Pt.A(b); Rivera, 994 F.2d at 949-50.

IV. THE IMPACT OF BAKEAS' NONCITIZEN STATUS ON THE SENTENCE IN ITS ENTIRETY

The government argues that this Court must ignore any and all aspects of Bakeas' sentence that are in any way related to his non-citizen status, relying heavily on the Second Circuit's decision in United States v. Restrepo, 999 F.2d 640 (2d Cir.1993). In Restrepo, the district court had departed downward to reflect the "collateral consequences" that the defendant would suffer as a result of his status as a deportable alien, and imposed a sentence of 33 months, rather than the 41-51 months suggested by the guidelines. The three consequences that troubled the district court were: first, and most importantly, the fact that the defendant would inevitably suffer the severe punishment of "banishment," because his crime had made him deportable as a matter of immigration law; second, the defendant's ineligibility for a discretionary pre-release community confinement program during the final...