U.S. v. Preacely

• Decision Date: 21 December 2010
• Docket Number: Docket No. 09-2580-cr
• Citation: 628 F.3d 72
• Parties: UNITED STATES of America, Appellee, v. Jamar PREACELY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

628 F.3d 72

UNITED STATES of America, Appellee,

v.Jamar PREACELY, Defendant-Appellant.

Docket No. 09-2580-cr.

United States Court of Appeals,Second Circuit.

Argued: May 28, 2010.

Decided: Dec. 21, 2010.

Yuanchung Lee, Federal Defenders of New York, Inc., New York, NY, for Appellant.

Thomas M. Sullivan, Assistant United States Attorney, of counsel (Susan Corkery, Assistant United States Attorneys, of counsel, on brief), for Benton J. Campbell, United States Attorney, Eastern District of New York, Brooklyn, NY, for Appellee.

Before: RAGGI, LYNCH, and WALLACE, Circuit Judges.¹

Judge LYNCH concurs in a separate opinion.

Judge RAGGI dissents in a separate opinion.

J. CLIFFORD WALLACE, Circuit Judge:

I.

On October 8, 2003, law enforcement personnel conducted surveillance of Preacely's apartment, based on a tip that he was selling crack cocaine. Preacely and another man were seen leaving the apartment. Law enforcement officers attempted to question them and both fled. Preacely escaped, but the officers caught the other man and found he possessed crack cocaine. The other man told the officers that Preacely was selling crack cocaine. A search of Preacely's apartment revealed more crack cocaine (about seven grams). A warrant was issued for Preacely's arrest. Preacely was subsequently arrested, at which time police found 14.4 grams of crack cocaine and 1.32 grams of marijuana on his person. He was indicted for distributing and possessing with intent to distribute 50 grams or more of a substance containing cocaine base in violation of 21 U.S.C. § 841(b)(1)(A)(iii).

Pursuant to a cooperation agreement, Preacely pled guilty to distribution and possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. § 841(b)(1)(B)(iii), a crime which carries a mandatory minimum sentence of five years. However, federal law provides that, upon motion by the government, a court may impose a sentence below the statutory minimum "to reflect a defendant's substantial assistance" in investigating or prosecuting other criminals. 18 U.S.C. § 3553(e); see also U.S.S.G. § 5K1.1 (permitting court to depart from Sentencing Guidelines upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another criminal). In the cooperation agreement here, the government agreed to file a motion pursuant to U.S.S.G. § 5K1.1 if Preacely provided substantial assistance to law enforcement, cooperated fully, and complied with the agreement's terms. The government ultimately submitted a motion pursuant to the cooperation agreement, meaning that the sentencing court could consider imposing a sentence below the statutory minimum.

II.

Preacely's Pre-Sentencing Report (PSR) indicates that his childhood was marred by poverty and substance abuse. He grew up in a "ramshackle" home with an alcoholic stepfather who verbally and physically abused his mother and threatened her with a gun "on a daily basis." His mother was addicted to crack cocaine during some of Preacely's teen years. Preacely became a heavy user of marijuana, starting at the age of 12 and abusing that drug continuously for most of his adult life.

Preacely was convicted of several crimes before his arrest in this case. At age 16, he was convicted of attempted criminal possession of a controlled substance (fifth degree). He was sentenced to a term of six months in custody and five years probation. Later that same year, however, hewas arrested for possessing crack cocaine and convicted of criminal possession of a controlled substance (seventh degree). For this additional conviction, and the violation of his earlier probation, he was sentenced to an additional eight months in custody. At age 18, Preacely was convicted of disorderly conduct and sentenced to time served. Later that year, he was again convicted of felony criminal sale of a controlled substance (fifth degree) and sentenced to a term of one year's imprisonment. At age 21, he was convicted of misdemeanor assault, resulting in another one year sentence. At age 22, he was arrested for selling crack cocaine and yet again convicted for criminal sale of a controlled substance (fifth degree). For this conviction, he was sentenced to two to four years, and later paroled.

In the case before us, Preacely was arrested in June 2004. He was 27 at the time. He was incarcerated from the time of his arrest until June 6, 2006, at which time he was released on bail. He remained free on bail through his sentencing in May 2009.

Between arrest and sentencing, a period of approximately five years, Preacely underwent exceptional rehabilitation. First, Preacely worked to overcome his drug addiction. The PSR reflected that Preacely had abused marijuana for years, but had not used drugs since his arrest and wanted to be placed in a substance abuse program while in prison. After being released on bail, Preacely was required to report to the Pretrial Services Agency once a week and to submit to random drug testing. It is undisputed that, in the nearly three years between his June 2006 release and May 2009 sentencing, Preacely never failed a drug test and was "completely compliant" with all of the terms of his release.

Second, Preacely rendered significant assistance to the government. He was released "with the consent of the government ... so that he could purchase narcotics from specific targets and otherwise assist in investigations of drug dealers and others." The government confirmed, by letter to the district court, that Preacely had "actively contributed to several successful criminal investigations." The government's section 5K1.1 motion also stated that Preacely began cooperating "very shortly after his arrest," and provided "truthful and consistent information." This information, according to the government, assisted in the arrest and/or conviction of persons suspected of drug dealing, firearms trafficking, credit card fraud, and multiple robberies, assisted in solving two murder cases, and assisted in the apprehension of a fugitive.

Third, Preacely transformed his professional life. Preacely had dropped out of school in ninth grade. Despite having received his GED in 2000, he had been employed only sporadically during his adult life. After his release on bail in June 2006, Preacely pursued employment and was one of the 18 (out of 90) candidates accepted into a competitive workforce development program sponsored by the county district attorney. The director of the program praised Preacely's performance, observing that he completed all homework assignments, often took the lead in class discussions, and displayed genuine interest in the subject of the program. She stated that Preacely was "quick to grasp complex and difficult subject matter," "willing to assist others," and possessed the character traits that were valued in the classes and in the work environments for which he was preparing. Another district attorney, who was affiliated with the program, praised Preacely's perfect attendance, "initiative and focus," and "leadership ability and clear thinking." She indicated thatPreacely had begun additional training with a local union on his own initiative, and it was anticipated that this would lead to full-time employment. Preacely completed the workforce development program and the union training program in November 2008. That same month, his employer wrote to the court, stating that Preacely was "one of [his] most trusted and dependable employee[s]."

Fourth, and finally, Preacely dramatically transformed his personal life. Preacely's employer stated that he had "grown into a responsible man, husband and father." Preacely not only attended voluntary counseling, but also counseled others through community programs. He worked with an initiative to close the drug market in his community. The Nassau County District Attorney also selected him to become a youth advisor for a gang prevention program. An addendum to the PSR reflected that Preacely married his longtime girlfriend and was providing support and care for their young daughter.

III.

At sentencing, the district judge accepted the PSR's recommendations as to Preacely's offense level and criminal history category for purposes of the Sentencing Guidelines. As to Preacely's criminal history category, the PSR assigned points for prior criminal history as follows: no points for the 1993 convictions, two points for 1995 disorderly conduct conviction, two points for the 1995 controlled substance conviction, two points for the 1995 assault conviction, and three points for the 1999 drug conviction. The PSR added another three points because the crime in this case occurred less than two years after Preacely's release from prison and while on parole for a prior offense, pursuant to U.S.S.G. § 4A1.1(d)-(e). This resulted in a total of twelve criminal history points, placing Preacely in criminal history Category V. However, because Preacely was over age 18 at the time of the current offense and had two prior felony convictions for controlled substance offenses, the PSR proposed that he qualified as a career offender under U.S.S.G. § 4B1.1(b). As a career offender, Preacely would be placed in criminal history Category VI.

The PSR calculated Preacely's base offense level as 26, under U.S.S.G. § 2D1.1(c)(6). By application of the Career Offender Guideline, however, his base offense level was elevated to 34. U.S.S.G. § 4B1.1(b)(B). The base offense level was reduced by three points for acceptance of responsibility under U.S.S.G. § 3E1.1, resulting in a final offense level of 31. With an offense level of 31 and a criminal history of Category VI, the Sentencing Guidelines suggested a range of 188-235 months' imprisonment.

At Preacely's sentencing hearing, his attorney asked the district judge to impose a term of two years' imprisonment—the time he had already served—and six months of "community confinement" in a halfway house. Prea...