U.S. v. Pozzy, 89-1879
| Decision Date | 06 March 1990 |
| Docket Number | No. 89-1879,89-1879 |
| Parties | , 3 Fed.Sent.R. 16 UNITED STATES, Appellant, v. Susan POZZY, Appellee. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Margaret D. McGaughey, Asst. U.S. Atty., Portland, Me., with whom Richard S. Cohen, U.S. Atty., James L. McCarthy, Asst. U.S. Atty., Detroit, Mich., and F. Mark Terison, Asst. U.S. Atty., Portland, Me., were on brief, for appellant.
J. Hilary Billings, Bangor, Me., for appellee.
Before CAMPBELL, Chief Judge, COFFIN and BOWNES, Senior Circuit Judges.
This is an appeal by the government pursuant to 18 U.S.C. Sec. 3742(b) 1 from a sentence that departed downward from the applicable guideline range.
The defendant Susan Pozzy and her husband Peter Pozzy were charged in separate informations with possessing cocaine on November 10 with intent to distribute it and aiding and abetting the other do the same, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Both Susan and her husband Peter waived indictment and pled guilty to the information charges.
We are reviewing only the sentence of Susan Pozzy, but because both she and her husband pled guilty to the same offenses and were sentenced by the same judge on the same day and because the marital relationship was an important factor in defendant's sentence, we think that Peter Pozzy's sentence is necessary background information.
In sentencing defendant's husband, the district court relied on the presentence investigation report and properly calculated the applicable guideline sentencing range. Peter Pozzy was sentenced to imprisonment for a period of forty-five months to be followed by three years of supervised release. The mandated fifty dollar assessment was imposed.
In sentencing defendant, the district court departed downward from the guideline range he found applicable, fifteen to twenty-one months imprisonment, and sentenced her to house arrest for a period of three months, followed by a supervised release term of two years. A fifty dollar special assessment was imposed, as required by the statute.
We turn first to the presentence investigation report (PSI) prepared by the probation department. The PSI reported that defendant and her husband had been engaged in cocaine trafficking for at least three months prior to their arrest. According to information obtained by the Bureau of Intergovernmental Drug Enforcement from an informant, the Pozzys received eight packages containing cocaine over a period of approximately three months. The packages came from Hollywood, Florida and were delivered to the Pozzys in Maine by United Parcel Service (UPS). Special Agent McKinney of the Bureau learned that on November 10, 1988, another package was to be delivered by UPS to the home of Mr. and Mrs. Pozzy. The UPS truck was intercepted at the post office parking lot in Winterport, Maine, and the package addressed to the Pozzys was sniffed by a narcotics dog. The dog signaled the presence of drugs and the package was seized. It had been sent from Fort Lauderdale, Florida, which is adjacent to Hollywood.
After obtaining a warrant to search the package, it was opened. Secreted in the package were two separate ziplock plastic bags, each containing 30 grams of white powder. After it was determined that the white powder was cocaine, the ziplock bags with their original contents were put back in the UPS package. A search warrant for the Pozzy's home was obtained. UPS then made a "controlled delivery" of the package to the Pozzy's residence. The warrant was executed immediately after the package was signed for and accepted by Peter Pozzy. The two ziplock bags of cocaine were seized from a garbage can next to the kitchen table. Also seized were three rounds of .30 caliber ammunition, $900 in cash, and a number of items with a white powder residue, including a sifter and a triple beam scale. The white powder residue was analyzed and found to be cocaine. Eighteen and a half grams of marijuana were also seized.
Defendant told the probation investigator that she became a drug trafficker in order to buy things and pay her bills. She described the affair as "a living nightmare." She told the probation officer that she was sorry for what she had done. She stated that her life was ruined and she was frightened, not knowing what was going to happen to her, her husband and their home. Defendant indicated to the probation officer that "she deserved to lose it all." She also told the probation officer that she had nothing to do with her husband's drug business beyond enjoying the financial benefits of it. Her husband corroborated this.
Defendant had no prior criminal history. She was brought up in an upper-middle class family. She told the probation officer that her father physically abused his wife and children. One of defendant's brothers had been sentenced to a Miami prison for drug trafficking. Defendant started "snorting" cocaine when she was in high school in Boca Raton, Florida. Defendant said that she stopped using cocaine in the summer of 1988.
Defendant has no mental or emotional health problems; she has an I.Q. of 104, which is average. Her physical health is described in the PSI as "excellent." In December of 1988, after her arrest, defendant suffered a miscarriage; she was three and one-half months pregnant. At the time of sentencing, August 8, 1989, defendant was pregnant again with an expected delivery date of December 13, 1989.
We next track the reasons stated by the district court for arriving at the sentence it did. The sentencing judge started by noting that "the sentencing guidelines are a new animal ... that we're trying to apply as the Sentencing Commission intended in order to impose sentences that are uniform and impose sentences that do speak for the guidelines." After thanking both attorneys for their comments, the judge stated:
I made a decision long ago that if I was going to err in sentencing defendants, that I was going to err on the side of leniency. It may be that such an error or such errors will cause my actions to be questioned by higher courts. But, in the meantime, I won't have any difficulty sleeping at night.
This comment was followed by this statement:
I think that the circumstances in this case warrant a departure downward. I don't think that there's any way that I can look at a specific provision of the guidelines and apply it to this situation. If that were the case, in all probability there would not be any departure downward. I think that we must look at the totality of the circumstances, and I will attempt to explain how I've done that and what has caused me to reach the decision to depart downward.
(Emphasis added).
After observing correctly that Sec. 5K2.0 of the guidelines gives the general directions for a downward departure from the applicable guideline range, the judge said: "The circumstances in this case that I think warrant a departure downward have to do primarily with the defendant's relationship with her husband, and, to some extent, with her present physical condition."
The judge then acknowledged that there was a "strong likelihood" that Sec. 5H1.4 "prohibits me from taking into consideration defendant's pregnancy." 2 He went on to say: "But I can't, in all honesty, say that the pregnancy of this defendant is not a consideration in departing downward; because it is." The judge explained:
Any departure downward that I give to this lady because of her pregnancy is not given because of her. It's given because of the child. It's not given because she has a physical disability. It's given because she has a child. And I think that [sic] child's rights should be given some consideration.
The judge then stated that from a medical standpoint it could be assumed that defendant He, however, felt that from "a psychological standpoint" defendant's health and that of her child would be "more threatened in confinement than it would be in a home setting." The judge expressed concern that the child would bear a stigma for the rest of its life if it were born in prison. He stated that he did not think the Sentencing Commission had considered pregnancy and that it was "an aggravating or mitigating circumstance that should be taken into consideration."
The judge next considered the relationship between the defendant and her husband. He acknowledged that "5K2.12 defines duress and the extent to which it can be considered in a case." This was followed by this statement: "But I don't think that it defines the type [sic] duress that exists between a man and a woman who are married, when the man wants to commit a crime, he has a drug habit, he has a history of alcoholism, he has a desire to buy and sell drugs." The judge then went on to find that the wife
has no alternative but to stay or leave and the former requires her to be an accomplice and an aider and abettor. I think that's a factor that's important.
* * * * * *
I think the conclusion is inescapable that she got into this matter because she loved her husband and because he had a drug habit, and he wanted her to do it, and she really had no alternative but to leave or stay there and participate. I think that's a factor that the Sentencing Commission did not take into consideration and one that is appropriate for me to consider in deciding the question of the departure downward.
Another factor that the judge considered as requiring a downward departure was that defendant was being punished by her husband's sentence. He stated: "I think that that's something that the Sentencing Commission did not consider and something that I'm compelled to consider in determining whether or not a departure downward should be made." Prior to making this finding, the judge had...
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