U.S. v. Ray

Decision Date27 August 2009
Docket NumberDocket No. 08-2795-cr.
Citation578 F.3d 184
PartiesUNITED STATES of America, Appellee, v. Sheena Deloache RAY, a/k/a Sheena Deloache Harper, Defendant-Appellant.<SMALL><SUP>*</SUP></SMALL>
CourtU.S. Court of Appeals — Second Circuit

Charles P. Kelly, Assistant United States Attorney (Benton J. Campbell, United States Attorney, on the brief, David C. James, Assistant United States Attorney, of counsel), United States Attorney's Office for the Eastern District of New York, Brooklyn, NY, for Appellee United States of America.

Yuanchung Lee, Appeals Bureau, Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellant Sheena Deloache Ray.

Before: LEVAL, CABRANES, and LIVINGSTON, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

We consider in this opinion several challenges to a sentence imposed fifteen years after a conviction. Defendant-appellant Shenna Deloache Ray1 appeals from a June 3, 2008 judgment of the United States District Court for the Eastern District of New York (Thomas C. Platt, Judge), convicting her of conspiracy to commit mail fraud in violation of 18 U.S.C. § 371. Ray had pleaded guilty to the charge on December 27, 1991, but her case was remanded on direct appeal pursuant to a stipulation by the parties to seek resentencing before the District Court. App. 59 (Jan. 14, 1993 Order in No. 92-1281-cr). The case then lay dormant for fifteen years until defendant was finally summoned for resentencing in January 2008. After holding a hearing, the District Court sentenced Ray to a one-day term of imprisonment and three years of supervised release with a special condition that she serve six months in a halfway house. On appeal, Ray seeks vacatur of her conviction and a dismissal of the indictment against her on the ground that she was deprived of her right to a speedy sentencing under the Speedy Trial Clause of the Sixth Amendment. Ray also seeks relief for a violation of her right to a speedy sentence pursuant to the Due Process Clause of the Fifth Amendment. Alternatively, Ray seeks a remand for resentencing because, in her view, a six-month commitment to a halfway house is substantively unreasonable because it would serve no rehabilitative purpose in light of the fact that she has committed no crimes in the fifteen years since this Court remanded her case for resentencing.

This appeal presents a series of questions that have not yet been resolved by our Court, including whether the right to a speedy sentencing is guaranteed by the Speedy Trial Clause of the Sixth Amendment and/or the Due Process Clause of the Fifth Amendment. If the right to a speedy sentencing is protected by the Constitution, we must then determine the standard for evaluating an alleged violation of that right and the appropriate remedy.


The following facts are not in dispute. In an indictment dated September 27, 1991, a grand jury sitting in the Eastern District of New York charged Ray and three co-defendants with mail fraud and conspiracy to commit mail fraud. The thirty-one count indictment described a scheme in which Ray and her co-conspirators fraudulently caused American International Adjustment Company, Inc. ("AIAC"), Ray's employer, to issue checks on closed accounts that were payable to members of the conspiracy. This scheme defrauded AIAC of over $200,000 between April 1988 and May 1989. On December 27, 1991, Ray pleaded guilty to the conspiracy charge pursuant to a plea agreement with the government. The District Court held a sentencing hearing on May 8, 1992. According to a presentence investigative report ("PSR") prepared by the United States Probation Office, Ray's total offense level under the U.S. Sentencing Guidelines ("U.S.S.G.") was thirteen, and her criminal history category was I, corresponding to a then-mandatory Guidelines range of twelve to eighteen months' imprisonment.2 Ray asked the District Court to consider mitigating factors that, in her view, were not adequately reflected in the PSR calculation. First, she argued that her extraordinary family circumstances, including that she was the "sole supporter of her two natural and two foster children," App. 42 (Mar. 30, 1992 letter of Lori H. Levinson, Esq., attorney for Ray), warranted a downward departure pursuant to U.S.S.G. § 5H1.6. Second, Ray requested a three-level reduction pursuant to U.S.S.G. § 5K2.12 because she "committed the crime ... at the insistence, and because of threats made by her former husband." Id. at 43. Finally, she asked the District Court to impose a sentence that did not entail incarceration because she was pregnant at the time. Id.

The District Court denied Ray's application for a departure because it believed that it lacked authority to depart on the grounds urged by Ray. The District Court explained, "every time that I have departed from the [Guidelines] and the government has challenged it, as they are apparently prepared to do here, [the Court of Appeals] ha[s] sent it back and said, `no.'" App. 52 (May 8, 1992 Tr. 5:13-16). After suggesting that defense counsel "[take] a trip to the Second Circuit," the District Court sentenced Ray principally to a twelve-month term of incarceration—the minimum term of imprisonment under the applicable Guidelines range. Id. (May 8, 1992 Tr. 5:21-22). Ray appealed the District Court's judgment, and was released on bail pending appeal.

While Ray's appeal was pending, another panel of this Court held, in United States v. Johnson, that extraordinary family circumstances may, in appropriate cases, constitute proper grounds for a departure from the otherwise applicable Guidelines range. 964 F.2d 124, 128 (2d Cir.1992). Defense counsel and the government then agreed that Ray was entitled to be resentenced pursuant to Johnson, and Ray moved to remand the case to the District Court. That motion was granted on January 14, 1993. The mandate issued, and jurisdiction was restored to the District Court on January 21, 1993. For unknown reasons, no further action was taken on Ray's case for fifteen years.

Apparently believing that this matter was behind her, Ray continued to live openly in the Eastern District of New York. She obtained lawful employment and paid federal and state taxes. Ray made no attempt to hide her identity or avoid detection by law enforcement authorities. As the government concedes, Ray "reformed [her] lifestyle," achieving "successful self-rehabilitation ... during the 15-year period of dormancy in her case." Appellee's Br. 6 n. 3. By 2008, Ray had been employed for fifteen years, raised three children, and remarried. She owned a home and a car, and she was enrolled in an associate's degree program at Queensborough Community College. Neither she, nor any of her children—two of whom were then enrolled in college—had any contact with the criminal justice system.

In late 2007, Ray applied to be a "Claims Examiner" with the Metropolitan Transportation Authority Bus Company. In order to obtain that position, she was required to provide documentation of the resolution of her 1992 conviction. Ray contacted the Clerk of Court at both the Second Circuit and the District Court in order to obtain a document indicating the disposition of her case.3 On January 31 2008, the District Court filed a Notice Setting Status Conference, stating that "[i]t has been recently brought to the Court's attention that the defendant was never re-sentenced and never served the original sentence." App. 67. The District Court set a "re-sentence date" for March 5, 2008. Id.

Sentencing proceedings were held as scheduled. Counsel for Ray, a member of the office of the Federal Defenders of New York, urged the District Court to exercise its discretion to impose a lenient sentence in light of Ray's rehabilitation.4 The District Court inquired whether Ray's former defense counsel had "an obligation to the Court to bring the defendant here immediately after [the Second Circuit's] decision, rather than not produce her to the Court until 16 years [sic] later[.]" App. 78 (Mar. 5, 2008 Tr. 11:19-22). Defense counsel explained that Ray's case had been marked closed, transferred to another unit in the office, and not returned to her office after the case was remanded to the District Court. The District Court did not accept this explanation because, in the Court's view, defense counsel have an obligation to produce their client for resentencing. The Court stated: "For 16 years [sic] here nothing has happened. I'm not going to tolerate this. You may get away with it with every other judge, but not me." Id. at 79 (Mar. 5, 2008 Tr. 12:17-19). Defense counsel apologized, saying that "if your Honor wants to hold our office accountable and sanction us in some way, that seems to me a different matter. But I would hope and urge your Honor not to hold it against [Ray.]" Id. at 80-81 (Mar. 5, 2008 Tr. 13:24-14:3). Defense counsel then continued to make her case for a lenient sentence.

Counsel for the government spoke next. After apologizing for the role of his office in failing to bring this matter promptly to the attention of the District Court, the prosecutor stated that he was not prepared, at that time, to oppose Ray's motion for a downward departure. He then expressed concern that, although he had not yet completed his research, Ray's "right ... to a speedy sentencing" might have been violated. Id. at 87 (Mar. 5, 2008 Tr. 20:22-23). After further examination of the possible violation, the District Court instructed the parties to brief the issue of whether Ray's right to a speedy sentence had been violated. It also authorized the parties to suggest to the Probation Office "possible alternatives" to incarceration. Id. at 95 (Mar. 5, 2008 Tr 28:12).

In a March 18, 2008 letter, the government stated that Ray "has a right to a speedy re-sentencing" under the Due Process Clause of the Fifth Amendment and the Speedy Trial Clause of the Sixth Amendment. App. 97-98 (Mar. 18, 2008 Letter...

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