U.S. v. Richardson

• Decision Date: 15 February 2008
• Docket Number: Docket No. 05-7005-cr.
• Parties: UNITED STATES of America, Appellant, v. Kasha RICHARDSON, Defendant, Carol Dominguez, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

521 F.3d 149

UNITED STATES of America, Appellant, v. Kasha RICHARDSON, Defendant, Carol Dominguez, Defendant-Appellee.

Docket No. 05-7005-cr.

United States Court of Appeals, Second Circuit.

Argued: June 22, 2007.

Decided: February 15, 2008.

Amended: March 20, 2008.

Brenda K. Sannes, Assistant United States Attorney, for Glenn T. Suddaby, United States Attorney for the Northern District of New York (John M. Katko, Assistant United States Attorney, of counsel), Syracuse, NY, for appellant.

Craig P. Schlanger, Syracuse, NY, for defendant-appellant Carol Dominguez.

Before: MINER, SACK, and HALL, Circuit Judges.

MINER, Circuit Judge:

Appellant United States of America (the "Government") appeals from a judgment of conviction and sentence for conspiracy to distribute cocaine and cocaine base entered in the United States District Court for the Northern District of New York (Hurd, J.) against defendant-appellee Carol Dominguez ("Dominguez") insofar as the sentence of 464 days reflects a departure of approximately 93% from the statutory minimum sentence of 240 months. The District Court determined that the Government's motion for a downward departure based on Dominguez' assistance to the Government enabled it to exercise discretion, apparently informed by a variety of specified and unspecified factors, to impose a sentence it deemed "fair and reasonable under the circumstances."

On appeal, the Government contends that the starting point for a reduced sentence is the statutory minimum sentence, that the only factors to be considered in this case are those relating to Dominguez' cooperation, that the District Court erred in failing to put forth sufficient reasons to justify the departure, and that the extent of the departure was unreasonable in any event. Dominguez responds that the District Court did use the statutory minimum as a point of departure, properly considered sentencing factors other than cooperation, imposed a reasonable non-Guidelines sentence, and adequately stated its reasons for imposing the sentence. For the reasons given below, we vacate, remand, and articulate the appropriate methodology to be employed in resentencing Dominguez.

BACKGROUND

By a Superseding Indictment filed on September 23, 2004, the Government charged Dominguez, along with fifteen co-defendants, with knowingly and intentionally conspiring to distribute more than 500 grams of cocaine and more than 50 grams of cocaine base, all in violation of 21 U.S.C. § 846. According to the Indictment, the conspiracy began "in or about January 2002, the exact date being unknown," and continued up to the date of the Indictment, September 23, 2004. The loci of the conspiracy were said to be in Oneida County, in the Northern District of New York, and elsewhere. Because Dominguez was convicted previously for a felony narcotics violation, the Government invoked against her in the Indictment and in an Information filed on January 7, 2005 the enhanced penalty provisions of 21 U.S.C. §§ 841(b)(1)(A) and 851. Pursuant to these provisions, Dominguez was subject to a mandatory minimum sentence of imprisonment of twenty years.

The charges against Dominguez and her co-conspirators arose from the operation of a large-scale cocaine distribution ring centered in the city of Rome, New York. Members of the conspiracy obtained large quantities of cocaine and cocaine base (crack) from suppliers in New York City and then transported the drugs in bulk quantities to Rome. There, the drugs were broken down into smaller quantities and prepared for later distribution. Members of the conspiracy then saw to the distribution of the repackaged narcotics throughout New York's Mohawk Valley, including the areas in and around the cities of Utica and Rome in Oneida County.

On April 7, 2005, Dominguez executed a written plea agreement (the "Agreement") with the United States Attorney for the Northern District of New York, agreeing to enter a plea of guilty to the conspiracy charged in the Indictment. In the Agreement, Dominguez admitted to a "personal relationship with co-[conspirator] Kasha Richardson," who was named as a defendant in the same Indictment. She also admitted that she "conducted drug trafficking activity with [Richardson] on a regular basis" and revealed that "[o]n occasion, [she] would hold or store crack cocaine, cocaine powder and drug-related proceeds for Richardson at her residence." The Agreement included a clause providing that "[t]he quantity of controlled substances involved in this conspiracy and attributable to [Dominguez] included between 50 and 150 grams of a mixture or substance containing a detectable amount of cocaine base (crack) and an unknown quantity of cocaine."

In exchange for Dominguez' agreement to enter a guilty plea, the United States Attorney stipulated, inter alia, that Dominguez' criminal history category could not be "definitively determined prior to the completion of the presentence investigation"; that the quantity of controlled drug substances attributable to Dominguez established a criminal offense level of 32, "without consideration of information provided by the Defendant which is protected by U.S.S.G. § 1B1.8"; that the United States Attorney would recommend a downward departure of three levels based upon Dominguez' continued acceptance of responsibility and the prompt entry of a plea of guilty; and that "[t]here are no facts and circumstances which would warrant an upward or downward departure from the applicable Sentencing Guidelines range in this case." The parties to the Agreement acknowledged that "[t]he sentence to be imposed upon the Defendant is within the sole discretion of the sentencing Court, subject to the statutory maximum penalties set forth above and the provisions of the Sentencing Reform Act and the United States Sentencing Guidelines promulgated thereunder."

In a presentence investigation report ("PSR") prepared on July 27, 2005 and revised on September 29, 2005, the Northern District Probation Office calculated Dominguez' offense level at 25 after crediting her with adjustments for her mitigating role and acceptance of responsibility. With respect to criminal history, the PSR noted that Domiguez was sentenced in Oneida County Court on November 13, 2000 to a term of probation of five years after being convicted for fifth degree criminal possession of a controlled substance with intent to sell. As a result of Dominguez' past conviction, one point was added to her criminal history score. Dominguez' criminal history score was further increased by two points because she was on probation when she committed the instant offense. Accordingly, the report established a total of three criminal history points, resulting in a criminal history category of II.

Invoking the sentencing table at U.S.S.G. Chapter 5, Part A, the PSR indentified a Guidelines range of 63-78 months, based on the foregoing calculations. Citing U.S.S.G. § 5G1.1(b) (mandatory minimum sentence is Guideline Sentence where greater than maximum of applicable Guidelines range), the PSR observed that the offense of conviction carried a minimum term of twenty years and that the Guidelines sentence therefore would be 240 months. An addendum to the PSR noted that a sentencing conference was waived, that neither the defense counsel nor the Government had any objections to the Guidelines calculations contained in the report, and that several minor revisions with regard to Dominguez' personal history were made at the request of defense counsel.

A sentencing memorandum (the "Memorandum") was filed on behalf of Dominguez on November 13, 2005. In the Memorandum, counsel for Dominguez pointed out that, as of the day scheduled for sentencing, November 16, 2005, his client would have been confined for a total of 464 days in federal custody. Arguing that Dominguez had made good use of her time and had maintained a "positive attitude" toward post-arrest rehabilitation during her confinement at the Montgomery County Correctional Facility, counsel noted that she had applied for enrollment in academic programs, obtained a job in the jail laundry, and started a women's group focused on making better life choices. Attached to the Memorandum were fourteen letters of support from family, members of the community, and former co-workers.

As summarized by counsel, the letters submitted "show [Dominguez] to be a responsible, hard-working, capable and generous person with an excellent employment record and the benefit of a close family and network of friends who have stood by her, and will continue to stand by her so as to help her stay `straight' when she returns home." The Memorandum concluded by requesting the court, inter alia, to establish a Guidelines sentence based on an offense level of 25 and a criminal history category of II in accordance with the presentence investigation report; to impose a sentence less than that provided by the Guidelines range in consideration of the factors recommended in 18 U.S.C. § 3553(a); and to at least impose a sentence of imprisonment at the low end of the Guidelines range.

On November 14, 2005, the Government filed its sentencing memorandum (the "Government's Memorandum"), under seal, adopting the Guidelines sentencing range set forth in the presentence investigation report. The Government's Memorandum included motions for downward departure pursuant to § 5K1.1, United States Sentencing Guidelines, and for a sentence below the statutory minimum pursuant to 18 U.S.C. § 3553(e), based on Dominguez' cooperation with authorities after her arrest. The nature, extent, and usefulness of that cooperation were set forth at some length in the Government's Memorandum. The Government began its calculation of a recommended sentence by noting that the indicated Guidelines sentence is the statutory mandatory minimum of twenty years (240 months) as provided in U.S.S.G. § 5G1.1(b).

Applying a criminal offense level of 36 and a criminal...