U.S. v. Woodley

• Decision Date: 29 October 2004
• Docket Number: No. CRIM.03-10135-NG.,CRIM.03-10135-NG.
• Citation: 344 F.Supp.2d 274
• Parties: UNITED STATES of America, v. Jeremy D. WOODLEY, Defendant.
• Court: U.S. District Court — District of Massachusetts

344 F.Supp.2d 274

UNITED STATES of America, v. Jeremy D. WOODLEY, Defendant.

No. CRIM.03-10135-NG.

United States District Court, D. Massachusetts.

October 29, 2004.

Paul R. Moore, United States Attorney's Office, Nadine Pellegrini, United States Attorney's Office, Boston, MA, for USA, Plaintiff.

John H. Cunha, Jr., Cunha & Holcomb, PC, Boston, MA, for Jeremy D. Woodley, Defendant.

SENTENCING MEMORANDUM

GERTNER, District Judge.

Jeremy D. Woodley ("Woodley") was charged with bank robbery in a one count indictment alleging a violation of 18 U.S.C. § 2113(a). The indictment claims that Woodley took approximately $738.00 from the Citizen's Bank in Boston, Massachusetts.

¹

At 23, Woodley had been a drug addict since his early teens, and with documented mental illness. Homeless between the ages of 19 and 23, he was in and out of various houses of correction for a series non-violent district court-based drug and property crimes. While his institutional record during these prior incarcerations was not good, his current detention showed a fundamental change. Not only were there no disciplinary violations, but Woodley volunteered to lecture and work with troubled teenagers in a program known as Project Alert, to get them to avoid the mistakes he had already made in his young life. He had never done anything that constructive before in his life.

Woodley's proposed Guideline sentence would reflect none of these issues — the context of his prior offenses, his addiction, his mental illness, or his current attitudinal changes. The relevant Guideline "score" is almost entirely driven by Woodley's criminal record and the career offender provision of U.S.S.G. § 4B1.1.² As a career offender, U.S.S.G. § 4B1.1 directs that the offense level be set at or near 32 (minus 3 for acceptance of responsibility), and the criminal history be counted at the highest level, a category VI. The resulting range would be 151 — 188 months — this for a 23 year old homeless, troubled addict who had never served more than a year in a house of correction. Without the career offender enhancement, Woodley's sentence would have been in the range of 77 — 96 months.

The defense has moved for a downward departure under U.S.S.G. § 4A1.3 on the ground that the defendant's criminal history vastly overstated his culpability and based on his extraordinary rehabilitation, U.S.S.G. § 3E1.1 cmt. (n. 1.)(g) (listing "post offense rehabilitative efforts e.g., counseling or drug treatment" as considerations in granting an acceptance of responsibility credit).

I agreed and granted the downward departure on both grounds to a criminal history category IV, and an offense level of 25. The resulting range was 84 — 105 months. I sentenced Woodley to 84 months with a judicial recommendation that the defendant participate in the 500 hour comprehensive drug treatment program, as well as a mental health treatment program. In addition, the defendant was sentenced to three years of supervised release during which time he was to continue his treatment for substance abuse and mental illness.

Nothing about this case reflects the kinds of concerns that Congress had expressed in enacting the career offender provisions. Everything about this case cries out for an extraordinary rehabilitation departure, and a departure based on criminal record.

I. BACKGROUND

A. Nature of the Offense

The idea of this offense was hatched in a spur of the moment. On March 26, 2003, Woodley was driving around with two other individuals, a female named Lacresha Edgerly and a male, Glenwood Swain. Suddenly, Woodley asked the driver, Edgerly, to stop the car. Swain was on the phone at the time; he was standing by the side of the car to let Woodley out. Woodley entered a Citizen's Bank at 441 West Broadway at 9:24 a.m. He rushed back into the car clutching a package from the bank; the bank's dye pack detonated the moment he reached the car. He ordered Edgerly to drive, leaving Swain standing where the car had been, still on the phone.

Inside the bank, Woodley stood in line and handed the teller a hand written demand note, reading "[g]ive me money or you get shot." Despite the language on the note, Woodley had no weapon. He grabbed $738.00 in United States currency, which was covered in red dye within minutes.

Witnesses at the scene noted the license plate number, the make and model of the car, and Woodley's description. The police traced the car to Edgerly, and through Edgerly, to Swain. They advised that Woodley had a girlfriend named Alicia who was hospitalized.

On March 26, 2003, an individual identifying himself as "Jeremy Woodley" called the Boston field office of the Federal Bureau of Investigation and stated that he wanted to turn himself in for the robbery he had committed in South Boston earlier in the day. He said he would wait at that address for members of the task force to arrest him. When the agents arrived, however, they found no one home. At the last minute, Woodley reported, he panicked, worried about the impact of the latest offense in light of his criminal record.

He did not go far. On March 30, 2003, the FBI found Woodley at Beth Israel hospital visiting his girlfriend. He confessed his own guilt and exculpated Edgerly and Swain.

II. CRIMINAL HISTORY DEPARTURE

Recognizing the inadequacies of the criminal history scoring system, the Sentencing Commission encourages departures where "reliable information" indicates that the criminal history category "significantly over-represents the seriousness of a defendant's criminal history or the likelihood that the defendant will commit further crimes."³ U.S.S.G. § 4A1.3(a)(1).

Significantly, to qualify for this departure, unlike departures in Chapter 5 (specifically § 5K2.0 of the Guidelines manual) the Court does not have to find that there is something atypical or unusual about the defendant's record.⁴ The statutory authority for U.S.S.G. § 4A1.3 lies not in 18 U.S.C. § 3553(A)(7)(b), the departure authority, but "in the basic provision of the Sentencing Reform Act that gives the Commission the authority ... to take into account, where relevant, the defendant's criminal background," United States v. Shoupe, 988 F.2d 440, 446 (3rd Cir.1993); United States v. Lacy, 99 F.Supp.2d 108, 121 n. 28 (D.Mass.2000); United States v. Wilkerson, 183 F.Supp.2d 373, 379 (D.Mass.2002); United States v. Hammond, 240 F.Supp.2d 872, 874 (E.D.Wis.2003).⁵ Moreover, this departure is also available to individuals who otherwise qualify for career offender status. Lacy, 99 F.Supp.2d at 120.⁶

Obviously, a judge should not make a departure determination based on criminal record out of thin air. Rather, he or she must analyze the purpose of the criminal history scoring, its structure and its limitations, and then determine where this defendant's record fits within it: The purpose of the criminal history provisions is "to provide harsher sentences for those with a prior record of misconduct, general deterrence of crime, and protection of the public from criminal recidivists." See Hammond, 240 F.Supp.2d at 877; U.S.S.G. § 4A (introductory commentary); see also Freedman, supra, at 312 (stating that the Commission devised the criminal history axis to provide for "just desserts" to recidivists and incapacitation for crime control purposes). Put otherwise, I am to ask: Does this record suggest that likelihood of recidivism? What does the record teach about the offender's criminal background and thus the punishment he deserves, relative to other information available to the Court? And in this case, how does the record compare to that of other career offenders? What impact would this sentence have on similarly situated offenders?

Obviously, the analysis starts with a review of Woodley's record, and how his score reached the highest level. My general methodology in this regard derives directly from the Guideline text. See United States v. Footman, 66 F.Supp.2d 83 (D.Mass.1999), aff'd, 215 F.3d 145 (1st Cir.2000)(upward departure):

... [W]hat is it about the [criminal history] score which created the under or over valuation of the record?

i) prior sentences not counted in computing criminal history (e.g. foreign sentences), ii) prior sentences of `substantially more than one year' that derive from independent crimes on different occasions, see § 4A1.3(a) and (b); iii) the timing of convictions — did they follow closely one after another or while another charge was pending? see § 4A1.3(d) and iv) the nature of the conviction — e.g., assaultive behavior or non-violent conduct.

Id. at 99; see also United States v. Leviner, 31 F.Supp.2d 23 (D.Mass.1998) (downward departure).

To that list I add the following: the length of prior sentences — were they just long enough to trigger two points under the Guidelines or in fact much longer? See Hammond, 240 F.Supp.2d at 879; Wilkerson, 183 F.Supp.2d at 381.⁷ A defendant's record could climb to a high criminal history category merely by virtue of a combination of jail sentences that were just long enough to trigger "counting" under the Guidelines. And that record would hardly be comparable to that of an offender who reached the same point through a single lengthy prison term. As I noted in Leviner:

To treat this man [Leviner] as if he were only a point on a grid ... would do violence to the purposes of the Sentencing Guidelines. It would treat someone convicted of Felon in Possession of a Firearm [the defendant's conviction] with a minor record, solely because he had a few sentences in the criminal history (1), (2), and, (3) range, the same as someone with multiple, violent crimes, and multiple ten to fifteen year sentences. It would create a new form of disparity, treating offenders that are completely different in a like way.

Id. at 33.

In addition, I will consider: Was the defendant given relatively lenient sentences even after his recidivism? See Hammond, 240 F.Supp.2d at 880. That pattern could either reflect...