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February 9, 2005

Interesting (and curious) district court application of Booker and Crosby

Just now appearing on-line is a case from earlier this week which is the first written case I have seen purporting to apply the Second Circuit's guidance from Crosby (basics here, commentary here).  The decision by US District Judge John Keenan in US v. Ochoa-Suarez, 2005 WL 287400 (S.D.N.Y. Feb 07, 2005), is also noteworthy for its brief consideration of safety-value issues.  Here is a selection from the court's (curious and sometimes seemingly inconsistent) ruling:

Although pre-Booker, the Court originally concluded that the defendant did qualify as a manager or supervisor under § 3B1.1 of the USSG, this finding does not pass muster under the holding in Booker, because there has been no finding beyond a reasonable doubt by a jury to this effect.  Accordingly, the three-level enhancement of defendant's offense level, under the now advisory-only sentence guidelines, for role in the offense, is rejected and there is no three-level adjustment for "role in the offense."...

The decisions in Booker and Fanfan do not affect the application of the "safety valve" in this case.  The section sets forth the five criteria the defendant must meet to qualify for "safety valve" treatment.  Testimony at the Fatico hearing on December 2, 2004 disclosed she was a manager and supervisor in the criminal activity here for safety valve purposes and the criminal enterprise in which she was involved was a continuing one....  Moreover, a fair reading of the Government submissions discloses that she failed to make full and truthful disclosures at her proffer sessions....

Finally, the Government asks me to deny the three-level reduction in offense level because defendant has not "clearly demonstrated acceptance of responsibility for her offense."  The application is denied.  She may not have completely articulated her full involvement in the conspiracy at the proffer sessions, but she did plead guilty to the exact charge in the indictment and saved the Government the costs of a trial.  The defendant is, after all, a first offender and 108 to 135 months is a substantial period of incarceration. In my view, this a "reasonable" range in this case.

In any event, both sides have a right to appeal my ruling and the sentence of 10 years that I impose today, the mandatory minimum.

February 9, 2005 at 01:59 PM | Permalink


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If 10 years was the mandatory minimum, there is nothing to appeal.

Posted by: Jill | Feb 9, 2005 2:39:51 PM

Seems to me that Judge Keenan is applying Booker and Crosby to say that sentencing enhancements must be determined by a jury beyond a reasonable doubt, but sentencing reductions and downward departures remain the province of reasonable judicial discretion.

Posted by: Michael K. Bachrach | Feb 9, 2005 3:10:15 PM

As published in Lexis, the opinion excises the language implying a BRD standard for the manager/supervisor enhancement, instead noting that the enhancement is not mandatory, and saying it would be "inappropriate"

Posted by: lcmarra | Feb 13, 2005 3:48:18 PM

the issue that is paramount is that there be some uniformity in sentencing enhancements used and the threshold for applying them this judge ruled that the acceptance provision was warranted even though the government feels she did not demonstrate acceptance i know in my own case where me the defendant accepted responsibility by timely entering a plea but was enhanced five levels for a pretrial violation of driving without written permission while at a halfway house the judge assigned a two point obstruction of justice enhancement and took away the three point acceptance, taking the defendant from a level 12 10 to 16 months range to level 20 33-41 months and gave me 41 months with no criminal history or aggraviting circumstatnces

united states v. richard r ruppert judge larry hicks las vegas district court i am currently pending on 2255..

Posted by: rick ruppert | Apr 9, 2005 11:44:46 PM

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