U.S. v. Galante
| Decision Date | 02 May 1997 |
| Docket Number | No. 831,D,831 |
| Citation | 111 F.3d 1029 |
| Parties | UNITED STATES of America, Appellant, v. Michael GALANTE, Defendant-Appellee. ocket 96-1464. |
| Court | U.S. Court of Appeals — Second Circuit |
Daniel C. Becker, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney for the Southern District of New York, Guy Petrillo, Assistant United States Attorney, New York City, of counsel), for Appellant.
Philip L. Weinstein, The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York City, for Defendant-Appellee.
Before: KEARSE, CARDAMONE, Circuit Judges, and POLLACK, * District Judge.
This appeal presents a single issue for us to decide: whether a sentencing court abused its discretion when it departed downward from the Sentencing Guidelines on account of defendant's family circumstances. Because the Supreme Court believes that in this area experience is the best teacher, it instructs that district courts, which have the most, are to be deferred to by appellate courts, which have much less.
Michael Galante (defendant or appellee) pled guilty on September 12, 1995 in the United States District Court for the Southern District of New York before Judge Lawrence M. McKenna to a charge of conspiracy to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B). Determining that Galante's family circumstances were extraordinary, Judge McKenna departed downward from the adjusted guideline range and sentenced Galante to time served (the eight days Galante was imprisoned between his arrest and subsequent release on bail), a five-year term of supervised release with special conditions, and a $50 special assessment. The special conditions included, inter alia, that Galante serve 24 months of home detention, perform 225 hours of community service after the period of home detention, and enroll in an English as a second language program.
The government (appellant) appeals from the sentence imposed June 12, 1996 contending it was an abuse of the district court's discretion to depart downwardly because of Galante's family circumstances. For the reasons that follow, we affirm.
On August 11, 1994 Galante met with a confidential informant who was wearing a hidden recording device. During the meeting Galante told the informant he was able to get heroin from "Colombians." Defendant also said that for brokering the drug deal he would earn $5,000. He met again with the informant the following week, at which time he provided a sample of heroin and explained that he wanted to sell one kilogram of heroin for $95,000 in cash. Five days later the informant came to Galante's restaurant to complete the drug deal. The two men went to a nearby automobile where an undercover Drug Enforcement Agent showed defendant $95,000 in cash. Upon seeing the money, Galante told the informant the heroin would be there shortly. Minutes later, he obtained approximately half a kilogram of heroin from three individuals. 1 When he attempted to consummate the heroin sale with the informant, defendant was arrested.
On September 12, 1995 defendant pled guilty, without a plea agreement, to a superseding information charging him with the conspiracy and possession with intent to distribute heroin crimes recited above. In the Presentence Investigation Report (report), the Probation Department attributed responsibility for 478.97 grams of heroin to Galante.
From a base offense level of 28, the report recommended a two-level downward adjustment for meeting the safety-valve criteria and an additional three-level downward adjustment for acceptance of responsibility. Given his criminal history category of I, this resulted in a guideline range of 46-57 months. The report recommended Galante be sentenced to a prison term of 46 months.
On June 7, 1996 defendant sought a downward departure based upon extraordinary family circumstances. At that time, appellee was 41 years old and prior to the instant matter had no criminal convictions and no criminal record of any kind. He had been married to the same wife for more than 10 years and they had two children, Jonathan and Jennifer, ages nine and eight. Their marriage was stable. The family lived together in a modest, two-bedroom apartment in a three-family home converted to apartments in Queens, New York. In order to open his restaurant, a pizza shop, defendant borrowed around $30,000 between 1993 and 1995, but his business failed to thrive and at the time of this offense he was in financial difficulties.
Appellee asserted that his monthly earnings kept his family from being evicted from their home and from being forced to apply for public housing and public assistance. He stressed the active role he fills in his children's lives. Although defendant and his wife both worked, Galante was the primary breadwinner; Mrs. Galante's employment opportunities are limited because she speaks little English. At the time of sentencing, defendant, who had given up his own business, earned $1,400 per month from his employment at a pizza parlor; Mrs. Galante earned $600 per month at a minimum wage job.
The district court was provided with letters from family and friends attesting to defendant's family's dependence on him. There was evidence that appellee took his two children to school, and--because the family could not afford child care--in the afternoons and on weekends, stayed home to care for them and to cook the family's meals so that his wife could work during those hours. The letters and defense counsel described Galante as a dedicated father who made many sacrifices for his family, and who considered the education of his children important. The letters also portrayed his devotion to his parents, and told how he had helped his mother to wash and feed his father after the latter was disabled in an automobile accident. The letters further revealed that he had visited his father frequently after his father was hospitalized in a chronic care facility. There was proof that neither Galante's parents nor his siblings could provide financial assistance for his family.
The government opposed a downward departure on the ground that Galante faced no more family responsibilities than a typical married defendant with two children. Although his family obviously would suffer were he incarcerated, the government asserted, nothing about these family circumstances was extraordinary.
Following argument on the downward departure application on June 12, 1996, Judge McKenna granted the departure on the basis of extraordinary family circumstances, and departed from the adjusted offense level of 23 to an offense level of 10, which resulted in the sentence of the five-year term of supervised release with the special conditions already described. This appeal followed.
The sole issue, as stated, is whether the district court abused its discretion when it downwardly departed based on Galante's family circumstances.
The Sentencing Guidelines, in relevant part, provide:
Under 18 U.S.C. § 3553(b) the sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines ....
that should result in a sentence different from that described." ...
An offender characteristic or other circumstance that is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range may be relevant to this determination if such characteristic or circumstance is present to an unusual degree and distinguishes the case from the "heartland" cases covered by the guidelines in a way that is important to the statutory purposes of sentencing.
U.S.S.G. § 5K2.0, p.s. The Guidelines state, in addition, that "[f]amily ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range." U.S.S.G. § 5H1.6, p.s.
We have read § 5H1.6 to mean that when a sentencing court determines the circumstances related to family ties and relationships are extraordinary, the Guidelines do not bar it from considering them as a basis for a downward departure. See United States v. Sharpsteen, 913 F.2d 59, 63 (2d Cir.1990); see also United States v. Londono, 76 F.3d 33, 36 (2d Cir.1996) (); United States v. Johnson, 964 F.2d 124, 129 (2d Cir.1992) ().
This case illustrates the tension that exists between the Guidelines' somewhat rigid sentencing grid and the authority of a sentencing court to move outside those strictures in order to impose an individualized sentence in a given case. A brief examination of the sentencing law helps rationalize when such a departure will be upheld on appeal.
The Sentencing Reform Act of 1984, 98 Stat.1988, 18 U.S.C. §§ 3551 et seq. and 28 U.S.C. §§ 991-998, had as one of its major purposes the avoidance of unwarranted sentence disparities among defendants guilty of similar conduct with similar records. See 18 U.S.C. § 3553(a)(6). The same statute, however, instructs a sentencing court in determining the sentence to be imposed to consider "the nature and circumstances of the offense and the history and characteristics of the defendant." Id. § 3553(a)(1).
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