U.S. v. Jones

• Decision Date: 03 December 2002
• Docket Number: No. 01-CR-193.,01-CR-193.
• Citation: 233 F.Supp.2d 1067
• Parties: UNITED STATES of America, Plaintiff, v. Braderick JONES, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

233 F.Supp.2d 1067

UNITED STATES of America, Plaintiff, v. Braderick JONES, Defendant.

No. 01-CR-193.

United States District Court, E.D. Wisconsin.

December 3, 2002.

COPYRIGHT MATERIAL OMITTED

Adam C. Essling, Milwaukee, WI, for Plaintiff.

Mario F. Gonzales, Milwaukee, WI, for Defendant.

DECISION AND ORDER

ADELMAN, District Judge.

Defendant Braderick Jones pled guilty to a one count information charging that between January 1, 1995 and September 14, 1999 he conspired with others to distribute and possess with intent to distribute marijuana. Essentially, defendant, along with other members of the Gangster Disciples street gang, ran several marijuana houses in Racine, Wisconsin.

A pre-sentence report (PSR) was prepared, which indicated that defendant's offense level under the sentencing guidelines was 20 and his criminal history category VI, creating an imprisonment range of 70-87 months. However, because the offense of conviction carried a statutory maximum penalty of 60 months, 21 U.S.C. § 841(b)(1)(D), that became the guideline sentence. U.S.S.G. § 5G1.1(a).

The parties agreed on the applicable guidelines, but defendant moved for a downward departure based on his extraordinary post-offense rehabilitative efforts and his extraordinary family circumstances. In this decision I address the motions.

I.

The district court has discretion to "depart from the applicable Guideline range 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.'" Koon v. United States, 518 U.S. 81, 92, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (quoting 18 U.S.C. § 3553(b)).

The Commission has provided guidance in making departure decisions by listing certain factors that are "forbidden" bases for departure, "encouraged" bases for departure, and "discouraged" bases for departure. See id. at 93-95, 116 S.Ct. 2035. A court confronted with a motion for a downward departure should first determine what factors make the case unusual, taking it out of the "heartland" of typical cases, and then whether the Commission has forbidden, encouraged, or discouraged departures based on those factors. Id. at 95, 116 S.Ct. 2035.

If the special factor is a forbidden factor, the sentencing court cannot use it as a basis for departure. If the special factor is an encouraged factor, the court is authorized to depart if the applicable Guideline does not already take it into account. If the special factor is a discouraged factor, or an encouraged factor already taken into account by the applicable Guideline, the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present. If a factor is unmentioned in the Guidelines, the court must, after considering the structure and theory of both relevant individual guidelines and the Guidelines taken as a whole, decide whether it is sufficient to take the case out of the Guideline's heartland.

Id. at 95-96, 116 S.Ct. 2035 (citations and internal quote marks omitted).

A.

Defendant first contends that his efforts at rehabilitation and self-improvement following commission of the instant offense take his case out of the heartland. The Commission has forbidden departures based on post-sentencing rehabilitative efforts. U.S.S.G. § 5K2.19; see United States v. Buckley, 251 F.3d 668 (7th Cir. 2001).

The Commission determined that post-sentencing rehabilitative efforts should not provide a basis for a downward departure when resentencing a defendant initially sentenced to a term of imprisonment because such a departure would (1) be inconsistent with policies established by Congress under the Sentencing Reform Act, including the provisions of 18 U.S.C. § 36324(b) for reducing the time to be served by an imprisoned person; and (2) inequitably benefit only those few who gain the opportunity to be resentenced de novo, while others, whose rehabilitative efforts may have been more substantial, could not benefit simply because they chose not to appeal or appealed unsuccessfully.

United States Sentencing Commission Guidelines Manual, Supplement to Appendix C 75 (2002) (amendment 602).

However, section 5K2.19 "does not restrict departures based on extraordinary post-offense rehabilitative efforts prior to sentencing. Such departures have been allowed by every circuit that has ruled on the matter post-Koon."¹ Id.; see, e.g., United States v. Newlon, 212 F.3d 423, 424-25 (8th Cir.2000); United States v. Cornielle, 171 F.3d 748, 753-54 (2d Cir. 1999); United States v. Jones, 158 F.3d 492, 503 (10th Cir.1998); United States v. Brock, 108 F.3d 31, 35 (4th Cir.1997); see also Alan Ellis, Answering the "Why" Question: The Powerful Departure Grounds of Diminished Capacity, Aberrant Behavior, and Post-Offense Rehabilitation, 11 Fed. Sen. Rptr. 322, 325-26 (May/June 1999).

Because post-offense rehabilitative efforts are a factor already considered under U.S.S.G. § 3E1.1,² which allows for an offense level reduction for acceptance of responsibility for the offense, a defendant seeking a departure on this basis must "show that those efforts were `exceptional enough to be atypical of the cases in which the acceptance-of-responsibility reduction is usually granted.'" Newlon, 212 F.3d at 424 (quoting United States v. DeShon, 183 F.3d 888, 889 (8th Cir.1999)). The court must make specific factual findings concerning the actions taken by the defendant which demonstrate a commitment to rehabilitation beyond that shown by those usually awarded the § 3E1.1 reduction. See United States v. Sally, 116 F.3d 76, 80-81 (3d Cir.1997);³ Brock, 108 F.3d at 35 n. 2.

As the court stated in Sally:

[T]here must be evidence demonstrating that a defendant has made concrete gains toward "turning his life around" before a sentencing court may properly rely on extraordinary ... rehabilitation efforts as a basis for a downward departure. Unlike the usual adjustment for acceptance of responsibility where defendants may all-too-often be tempted to feign remorse for their crimes and be rewarded for it, we view the opportunity for downward departures based on extraordinary or exceptional ... rehabilitation efforts as a chance for truly repentant defendants to earn reductions in their sentences based on a demonstrated commitment to repair and to rebuild their lives.

116 F.3d at 81.⁴

Courts considering such departures have often focused on drug and alcohol rehabilitation, see, e.g., Newlon, 212 F.3d at 424; Cornielle, 171 F.3d at 754 (citing United States v. Maier, 975 F.2d 944, 948 (2d Cir.1992)); United States v. Whitaker, 152 F.3d 1238, 1241 (10th Cir.1998); but other factors, such as church and community involvement, family counseling and reconciliation, psychiatric treatment (and the expert opinions of treatment providers regarding the defendant's prognosis), steady employment, extraordinary expressions of guilt and remorse, and compliance with conditions of pre-trial release have also been considered. See, e.g., DeShon, 183 F.3d at 889-90; Jones, 158 F.3d at 503; United States v. Kapitzke, 130 F.3d 820, 823 (8th Cir.1997); United States v. Shasky, 939 F.Supp. 695, 698-700 (D.Neb. 1996). No exhaustive list of positive behavior can be compiled; rather, the court should evaluate each situation on a case-by-case basis, keeping in mind that such departures should be reserved for those defendants who demonstrate a genuine commitment toward turning their lives around such that they are unlikely to reoffend.⁵

In the present case, I find as follows. First, although defendant's rehabilitative efforts have all come while in custody, his situation is properly characterized as post-offense rather than post-sentencing. On September 16, 1999, defendant was arrested and charged with possession with intent to distribute cocaine. He has been custody since that date. On August 24, 2000 he was sentenced to 72 months imprisonment for that offense. United States v. Jones, Case No. 00-CR-30 (E.D.Wis. Aug. 24, 2000) (judgment). He is currently incarcerated at the Federal Correctional Institution in Milan, Michigan.

The instant offense was committed between January 1, 1995 and September 14, 1999. Section 5K2.19 forbids departures only for rehabilitative efforts "undertaken by a defendant after imposition of a term of imprisonment for the instant offense," not other crimes. Therefore, I may consider a departure.⁶

Second, I find that defendant's efforts to better himself are, compared to most other defendants who receive a reduction for acceptance of responsibility, extraordinary. Defendant has participated in substance abuse counseling; educational, parenting and religious classes; and obtained employment through UNICOR as a welder with good work reports. (PSR ¶ 56.) His behavior while in prison has been commendable, with just one incident report (for use of a phone without authorization) during his term of incarceration. (PSR ¶ 56.)

Defendant has submitted proof of the following drug rehabilitation efforts while housed at the Waukesha County Jail as a pre-trial detainee:

• completion of ARO Counseling Centers Short Term Intensive Group program "with outstanding participation" (R. 288, Ex. A, B);

• completion of ARO's Intensive and Relapse Prevention Group programs, with his counselor noting: "Braderick appears motivated for recovery and for change" (R. 288, Ex. C, D, E).

Defendant is on the waiting list for substance abuse treatment at FCI-Milan. (PSR ¶¶ 56, 90.)

Defendant has submitted proof of completion of the following educational courses at the Waukesha County Jail:

• ARO Counseling's anger management course "with outstanding participation" (R. 288, Ex. F);

• ARO's cognitive thinking course, also "with outstanding participation" (R. 288, Ex. G);

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