U.S. v. Sandhu

• Decision Date: 15 November 2006
• Docket Number: Criminal Action No. 02-247.
• Citation: 462 F.Supp.2d 663
• Parties: UNITED STATES of America v. Gulvinder Singh SANDHU.
• Court: U.S. District Court — Eastern District of Pennsylvania

Page 663

462 F.Supp.2d 663

UNITED STATES of America v. Gulvinder Singh SANDHU.

Criminal Action No. 02-247.

United States District Court, E.D. Pennsylvania.

November 15, 2006.

Seth Weber, U.S. Attorneys, Philadelphia, PA, for Plaintiff.

MEMORANDUM

EDUARDO C. ROBRENO, Judge.

On September 22, 1999, Gulvinder Singh Sandhu ("Sandhu" or "Defendant"), a commercial truck driver, was driving through Berks County, Pennsylvania, when his truck swerved and his tractor trailer crashed into a van, killing four members of a family and seriously injuring two others.

The Berks County district attorney brought charges against Sandhu for vehicular manslaughter and related offenses. See Commonwealth v. Sandhu, Docket No. 4838/99 (Pa. Ct. C.P., Berks County, filed Dec. 7, 1999). These charges were dismissed by the state court, and Sandhu ultimately pled guilty to the summary offense of careless driving and paid a fine. Id.

After the accident, the United States Department of Transportation (DOT) initiated an investigation into Sandhu's driving records and determined that he had falsified his commercial truck driver daily logbook during August and September 1999 (the time period immediately prior to the accident) by incorrectly listing the dates and times he was driving and sleeping.

On April 23, 2002, Sandhu was indicted by a federal grand jury on 42 counts of making false statements in a matter within the jurisdiction of the executive branch of the federal government, in violation of 18 U.S.C. § 1001. Pursuant to a plea agreement, Defendant pled guilty on August 3, 2006, to all 42 counts in the indictment.

The final chapter of this tragic episode will play out on December 4, 2006, when Sandhu is to be sentenced by the Court on the federal charges. The Sentencing Guidelines applicable to the case recommend a term of imprisonment of 8 to 14 months. The Government recommends that Defendant be sentenced at the high end of the Guidelines. Defendant argues that, to the contrary, the sentence should be at the low end.

The issue is what evidence may be considered to assist the Court in determining (1) where within the range specified by the Sentencing Guidelines (which are now advisory) Defendant should be sentenced; and/or (2) under the Guidelines, whether an upward departure is recommended; and/or (3) the proper calculus under the factors delineated in 18 U.S.C. § 3553(a).

Defendant has moved to strike both the proposed testimony of an alleged eyewitness to the accident and the proposed victim-impact statements.¹ A corollary to the motion to strike is whether the purpose of the pertinent federal regulation promulgated by the DOT may be appropriately considered in applying the § 3553(a) factors.

I. BACKGROUND

Sandhu, a Canadian citizen, holds the equivalent of a United States commercial motor vehicle (CMV) driver's license. A CMV driver's hours, and the forms on which he is to keep his hours, are regulated by the Federal Motor Carrier Safety Administration (FMCSA), a division of the DOT, and governed by title 49, part 395 of the Code of Federal Regulations. Relevant here, a CMV truck driver must comply with the so-called "10-hour rule"²: he cannot drive "more than 10 hours following 8 consecutive hours off duty." 49 C.F.R. § 395.3(a)(1) (1998).

CMV drivers must record their duty status for each 24-hour period, listing, on a prescribed form, when they are (1) off-duty, (2) in the sleeper berth, (3) driving, or (4) on-duty but not driving. Id. § 395.8(a), (b). The driver is required to file this duty status form (commonly called a logbook) with his employer,³ id. § 395.8(i), who retains the logbooks for six months in case of inspection by the FMCSA, id. § 395.8(k). It is the connection between the violation of the federal regulation and the deaths and injuries that occurred from the accident that is at issue.

The plea agreement recounted the analysis under the Sentencing Guidelines. The base offense level is 6, U.S.S.G. § 2F1.1(a) (1989).⁴ There is an upward adjustment of 2 levels for more than minimal planning, id. § 2F1.1(b)(2)(A). In the plea agreement, the parties disputed whether there should be an upward adjustment for conscious or reckless risk of serious bodily injury, id. § 2F1.1(b)(6)(A), but Defendant has since stipulated to this adjustment. This upward adjustment increases the offense level to 13. The plea agreement also noted a 2-level downward adjustment for acceptance of responsibility, id. § 3E1.1(a). The total offense level is therefore 11. With no discernable criminal history, Sandhu has a criminal history category of I.

A total offense level 11 and criminal history category I yields a Guidelines range of 8 to 14 months imprisonment.⁵ The maximum penalty under the statute, however, is significantly harsher. Each violation of 42 U.S.C. § 1001 carries a possible prison term of 5 years. Therefore, by pleading guilty to 42 counts, Sandhu agreed to an exposure of 210 years in prison.

Though the Government made no promises as to its sentencing recommendation in the plea agreement,⁶ its sentencing memorandum recommends a sentence of 14 months, at the high end of the Guidelines range.⁷ The Probation Office, in the Presentence Investigation Report (PSI), also recommends a sentence of 14 months. Defendant, in his sentencing memorandum, has asked for a sentence of 8 months, at the low end of the Guidelines range.

Neither the Government nor Defendant has moved for a departure under the Guidelines. However, the PSI notes that an upward departure may be warranted under U.S.S.G. § 5K2.1, because "death resulted."

At sentencing, the Government proposes to offer the testimony of Glen Dubs, and alleged eyewitness to the accident.⁸ According to the Government's proffer, Dubs will testify that he saw Sandhu's truck swerving shortly before the accident.

Additionally, the Government proposes to offer the testimony of two relatives of the victims of the accident to describe the effect that the accident has had on them and other relatives of the victims.⁹

Finally, the Court intends to consider whether the safety purpose of the federal regulation concerning the 10-hour rule should inform the Court's decision in applying the 18 U.S.C. § 3553(a) factors.

II. DISCUSSION

At bottom, this evidentiary dispute centers around whether the accident (and its consequences), which was the subject of the state prosecution, is relevant to the falsification of the logbooks, which is the federal offense now before the Court, and therefore appropriate to be considered at sentencing.

A. Evidence To Aid the Court in Determining Where Within the Guidelines Range Defendant Should Be Sentenced

Congress has given district courts broad discretion¹⁰ to consider any relevant material at sentencing:

No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.

18 U.S.C. § 3661. The Sentencing Guidelines likewise allow the Court to consider any relevant information when imposing a sentence within the Guidelines range:

In determining the sentence to impose within the guideline range ... the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law.

U.S.S.G. § 1B1.4.

"[C]ourts imposing sentence are `free to consider a wide range of relevant material,'" United States v. Deaner, 1 F.3d 192, 198-99 (3d Cir.1993) (quoting Payne v. Tennessee, 501 U.S. 808, 820-21, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991)), limited only by the requirement that "[i]nformation used as a basis for sentencing under the Guidelines must have `sufficient indicia of reliability to support its probable accuracy.'" United States v. Miele, 989 F.2d 659, 663 (3d Cir.1993) (quoting U.S.S.G. § 6A1.3(a)).

Evidence of Defendant's actions immediately prior to the accident implicates the "conduct of the defendant" prong under both the statute and the Guidelines. The evidence is therefore admissible at sentencing to determine where within the Guidelines range to sentence Defendant, provided the evidence is reliable.

B. Departures and Variances¹¹ After Booker

The Supreme Court case of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), constituted a sea change in sentencing procedure and law. After Booker, the nature of the inquiry at sentencing is necessarily broader, as the Sentencing Guidelines are no longer mandatory and the Court has considerably more discretion. The wisdom of the Booker decision is reflected in the sentencing in this case: were the Guidelines still mandatory, the Court would be unable to take into account in a comprehensive fashion the unique circumstances (and consequences) involved here.

The Third Circuit has recently reaffirmed the three-step sentencing process that district courts are to follow post-Booker:

(1) Courts must continue to calculate a defendant's Guidelines sentence precisely as they would have before Booker.

(2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit's pre-Booker case law, which continues to have advisory force.

(3) Finally, they are to exercise their discretion by considering the relevant § 3553(a) factors in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines.

United States v. Jackson, No. 05-4091, 467 F.3d 834 (3d Cir.2006) quoting United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006).

While the Supreme Court in Booker invalidated that portion of the U.S.Code (18 U.S.C. § 3553(b)) that made the Sentencing Guidelines mandatory, "[t]he district courts, while not bound to apply the...