US v. Bakhtiari, S 88 Cr. 889 (RWS).

• Decision Date: 12 December 1989
• Docket Number: No. S 88 Cr. 889 (RWS).,S 88 Cr. 889 (RWS).
• Citation: 729 F. Supp. 11
• Parties: UNITED STATES of America v. Kourosh BAKHTIARI, Defendant.
• Court: U.S. District Court — Southern District of New York

729 F. Supp. 11

UNITED STATES of America v. Kourosh BAKHTIARI, Defendant.

No. S 88 Cr. 889 (RWS).

United States District Court, S.D. New York.

December 7, 1989.

As Amended December 12, 1989.

SENTENCING OPINION

SWEET, District Judge.

Defendant Kourosh Bakhtiari ("Bakhtiari") is to appear for sentencing on December 12, 1989 on two separate indictments. For the reasons stated below, a sentence of 30 months of imprisonment will be imposed, which term of imprisonment shall run consecutively to the sentence of 46 months incarceration imposed on November 28, 1989, by the Honorable Leonard B. Sand with respect to Bakhtiari's separate conviction on weapons and false statement offenses.

The Offenses

At the conclusion of a jury trial before Judge Sand, Bakhtiari was found guilty on August 7, 1989 on several weapons and false statements/impersonation counts. As noted, he recently was sentenced on those counts to forty-six months imprisonment and, as well, a ten year term of supervised release.

On September 21, 1989, following his conviction on the weapons/false statements counts, Bakhtiari pleaded guilty to two counts charged in indictment 89 CR 889 — conspiring to escape in violation of 18 U.S.C. § 371 and attempt to escape from custody pursuant to felony arrest in violation of 18 U.S.C. § 751(a). Both counts relate to Bakhtiari's efforts on November 20, 1988, to escape from detention at the Metropolitan Correctional Center, efforts in which he was joined by two other inmates confined at the Center. The record is clear that Bakhtiari was the leader and methodical planner of this escape attempt, which resulted in the inmates' capture on a roof of the Correctional Center several floors below the cell window from which the inmates escaped through and scaled down.

Also on September 21, 1989, Bakhtiari pleaded guilty under a separate indictment, 89 CR 227, to another count of escape from custody pursuant to felony arrest. That indictment arose from his successful solo escape from Beekman Hospital on February 28, 1989, three months after his prior escape attempt. Bakhtiari had been confined under guard at Beekman while being treated for certain hand injuries sustained during his first attempted escape and apparently fled the Hospital while unshackled. Bakhtiari was recaptured from this escape on March 3, 1989.

Statutory Considerations and the Guidelines

Consecutive v. Concurrent Sentences

18 U.S.C. § 3584(a) provides that "if multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively...." In making that determination, a court is to consider the sentencing factors set forth in 18 U.S.C. § 3553(a) governing imposition of sentences, which factors include the sentencing ranges and policies recommended by the Sentencing Commission.

The Sentencing Commission Guidelines (the "Guidelines"), are here not particularly helpful with respect to first question of whether sentencing on the escape charges should run consecutive to the weapons/false statements charges for which Bakhtiari was just sentenced last week. Guidelines § 5G1.3 states that where the instant offense was "committed while the defendant was serving a term of imprisonment," (emphasis added), a consecutive sentence should be imposed. That provision is by its terms inapplicable to Bakhtiari as his escapes occurred prior to adjudication of, and sentencing on, his weapons/false statements charges. The commentary to this provision provides no further guidance, other than to note that in the case of an offender who committed the offenses in question prior to serving a separate unexpired term of imprisonment, sentencing on the instant offenses may run consecutively or concurrently with the unexpired term.

The sentencing factors set forth at 18 U.S.C. § 3553(a)(2) do, however, favor making the sentence on the instant offenses run consecutively with the term of imprisonment imposed on the weapons/false statements convictions. Bakhtiari's escapes constituted criminal conduct entirely distinct from his weapons/false statement convictions. To impose a sentence on the escapes that ran concurrently with the forty-six month sentence imposed on the weapons/false statements convictions in effect would require Bakhtiari to serve no time for the former conduct. A concurrent sentence thus would fail entirely "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment" for his behavior. 18 U.S.C. § 3553(a)(2)(A). Nor would it "afford adequate deterrence" to inmates contemplating escape attempts if they could expect to do no additional time as a result of such attempts. See 18 U.S.C. § 3553(a)(2)(B).

The Guidelines do give instruction on the distinct question of whether sentencing on one escape should be consecutive to the other. Guidelines § 5G1.2 provides that when sentencing on multiple counts of conviction, sentences are ordinarily to run concurrently and are to be computed in accordance with the provisions of Subchapter 3D of the Guidelines,...