Free Trial Memo - District Court of Connecticut - Connecticut

Case 3:03-cr-00183-CFD

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA v. KARL GATES : : : : : : : Crim. No. 3:03CR183(CFD)

November 12, 2004

GOVERNMENT'S PROPOSED FINDINGS RE: SENTENCING On June 30, 2003, the defendant KARL GATES pleaded guilty to an information, charging him with one count of theft of government property in violation of 18 U.S.C. § 641. On November At the

9, 2004, the Court addressed various sentencing matters.

conclusion of the proceeding, the Court invited counsel to file any supplemental sentencing materials on or before November 12, 2004 in advance of the defendant's sentencing scheduled for November 15, 2004. Specifically, the Court sought the submission

of proposed findings relative to the sentencing issues before the Court. The government's proposed findings are set forth below.

I. PROPOSED FINDINGS AS TO APPLICATION OF U.S.S.G. § 2B1.1. Amount of the Loss 1. The parties reported to the Court that there is no

longer a dispute as to the amount of the loss resulting from the offense of conviction and any relevant conduct. Specifically, Under

the parties agree that the loss amount is $35,003.12.

section 2B1.1(b)(1) of the Federal Sentencing Guidelines ("U.S.S.G." or "Guidelines"), the agreed upon loss triggers a

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six-level increase in the base offense level. 2. Apart from the fact that the parties appear to agree on

the applicable loss amount, an adequate basis in fact exists to support this figure. Specifically, the Court adopts the

presentence report's ("PSR") findings that the loss amount is $35,003.12. More than Minimal Planning 3. The defendant has objected to any enhancement under The

section 2B1.1(b)(4)(A) for "more than minimal planning". government maintains that the enhancement applies. Having

reviewed the parties submissions and heard oral argument on the matter and adopting the factual findings of the PSR, the Court finds as follows. 4. Section 2B1.1(b)(4) provides that "[i]f the offense

involved more than minimal planning, increase by 2 levels." U.S.S.G. § 2B1.1(b)(4). Section 1B1.1(f), in turn, defines "more

than minimal planning" as meaning "more planning than is typical for commission of the offense in simple form." 1B1.1(f). Section 1B1.1(f) continues: U.S.S.G. §

More than minimal planning is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. Consequently, this adjustment will apply especially frequently in property offenses.... In a theft, going to a secluded area of a store to conceal the stolen item in one's pocket would not alone constitute more than minimal planning. However, repeated instances of such thefts on several occasions would constitute more than minimal -2-

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planning. Id. (emphasis added); see also United States v. Walsh, 119 F.3d 115, 118 (2d Cir. 1997) (series of false and misleading statements considered relevant conduct and indicative of "repeated acts" triggering application of "more than minimal planning" enhancement). 5. In the present case, the facts set forth in the

presentence report decidedly reveal that the defendant engaged in repeated acts involving false statements and the unlawful receipt of federal funds over a period of several years. For example,

during the period from 1996 through 2000, the defendant made numerous false statements as to his marital status. At various

times, the defendant stated that he had been separated from his wife since 1995 or that he had never been married at all. In

fact, the defendant has been married to his current wife since 1994. Moreover, on January 10, 2001, the defendant conceded to

law enforcement authorities that he had never been separated from his wife for more than two weeks. Had the defendant truthfully

described his marital status he would not have been eligible for SSI benefits during the period from October 1994 through December 2000. (PSR ¶¶ 14-21.) 6. The pattern of false statements precipitated the

defendant's desired result of continuing a stream of SSI benefits to which he was otherwise not entitled. In view of the

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defendant's "repeated acts over a period of time", the two-level enhancement under section 2B1.1(b)(4)(A) is plainly applicable. Calculation under U.S.S.G. § 2B1.1 7. In view of the foregoing and applying the version of the

Guidelines in effect as of November 1, 2000, the Court finds that the defendant's base offense level is 12 calculated as follows: U.S.S.G. § 2B1.1(a)..............4 U.S.S.G. § 2B1.1(b)(1)..........+6 U.S.S.G. § 2B1.1(b)(4)(A).......+4 Chapter II Offense Level........12 8. The Court notes that as to the issue of calculating loss

under section 2B1.1 of the Guidelines, the defendant has indicated that he wishes to reserve any claims arising from the decision in Blakely v. Washington, 124 S. Ct. 2431 (2004). Specifically, the defendant has preserved the right to claim that the issue of loss must be submitted to a jury and proved beyond a reasonable doubt. II. PROPOSED FINDINGS REGARDING APPLICATION OF U.S.S.G. § 3E1.1 9. The PSR initially did not recommend that the Court

reduce the defendant's offense level by two levels pursuant to U.S.S.G. § 3E1.1. The government similarly took the position

that a reduction in the offense level was unwarranted given the defendant's apparent failure to comply with the conditions of his pre-sentence release. However, the government has modified its

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stance in view of the defendant's willingness to acknowledge the full extent of the loss as referenced earlier and the defendant's full compliance with the conditions of his bond since February 2004. The Court is satisfied that the defendant has accepted A two-level reduction in the

responsibility for his offense.

base offense level is thus warranted, bringing the defendant's adjusted offense level to ten. III. PROPOSED FINDINGS REGARDING DEFENDANT'S CRIMINAL HISTORY 10. There is no dispute that the defendant's criminal

record and corresponding criminal history score under Chapter IV of the Guidelines results in a Criminal History Category IV. However, the defendant has requested a horizontal departure, claiming that Category IV overstates the seriousness of the defendant's past 11. criminal behavior.

Section 4A1.3 provides that in cases where a

defendant's criminal history does not "adequately reflect the seriousness" of a defendant's criminal record, a horizontal departure may be appropriate. Departures may be granted where

the Guidelines analysis results in an understatement or an overstatement of a defendant's criminal history. An example of

overstated criminal history is set forth in the commentary to section 4A1.3 as follows: An example might include the case of a defendant with two minor misdemeanor convictions close to ten years prior to the instant offense and no other evidence of prior criminal behavior in the intervening period. -5-

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U.S.S.G. § 4A1.3, Commentary (emphasis added). 12. The defendant's criminal history does not overstate the This is not a case involving

seriousness of his criminal record.

two remote misdemeanor convictions as contemplated in the commentary to the Guidelines. See U.S.S.G. § 4A1.3, Commentary.

Rather, the defendant has engaged in a nearly unbroken pattern of misdemeanor offenses for more than two decades that continued during and after the commission of the offense of conviction. (PSR ¶¶ 40-58.) The defendant has at least 15 convictions, But for the

amassing a total of 15 criminal history points.

operation of U.S.S.G. § 4A1.1(c), which caps the defendant's criminal history points at four for offenses not triggering at least a 60-day jail sentence, the defendant's criminal history would place him in Category VI. 13. Furthermore, while the defendant's prior convictions

are for misdemeanor offenses, the crimes are not in each case petty. The defendant's convictions evince a propensity to steal,

carry firearms and other weapons, and disregard hunting regulations. In other words, the defendant's criminal record

portrays a person who engaged in criminal activity that is harmful and dangerous to others. 14. The basis of the defendant's departure argument centers

around his mental health and the extent to which his impulsivity disorder may have contributed to his commission of the prior

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offenses.

The defendant has failed to meet his burden of proving

that any mental health conditions under which he may have labored contributed to the commission of each of the convictions. It is

true that some of the crimes committed by the defendant appear to reflect a degree of impulsivity. However, the report of Dr.

Varun Choudhary only opines that such conduct is consistent with the defendant's more recently diagnosed mental health condition. 15. Moreover, there are several offenses that are similar

to the instant offense in that they do not appear to be impulsetype crimes. For example, the defendant was convicted of home

improvement fraud, when he submitted a false lab report to a homeowner stating that his soil was toxic. (PSR ¶ 47.) The

defendant was also convicted of making a false statement about a claimed theft of his car. (PSR ¶ 54.) The defendant was twice

convicted of reckless endangerment when he shot a cross-bow into his neighbor's residence and shot a wild turkey on residential property without permission. (PSR ¶¶ 55 and 56.) There is no

evidence that any mental illness contributed to the defendant's commission of these offenses. 16. Even if the Court had the discretion to depart under

U.S.S.G. § 4A1.3, the Court would not exercise its discretion to do so. Ultimately, the question is the likelihood of recidivism.

In this regard the defendant's track record speaks for itself. The number of convictions and their recency, the fact that the

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defendant committed a crime after he pleaded guilty to the instant offense (and has since been convicted) (PSR ¶ 58), and the fact that the defendant committed the instant offense while under the care of Holly Goss (see Report of Dr. Varun Choudhary ("Choudhary Report") p. 5.), all suggest a likelihood of recidivism that is adequately reflected in a Category IV criminal history. IV. PROPOSED FINDINGS RE DOWNWARD DEPARTURE UNDER CHAPTER FIVE 17. Apart from requesting a horizontal departure on the

basis of claimed overstated criminal history, the defendant has moved for a downward departure pursuant to section 5K2.13 and section 5K2.0. A downward departure is not warranted under

either provision. U.S.S.G. § 5K2.13 18. Section 5H1.3 of the Guidelines provides that "[m]ental

and emotional conditions are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range, except as provided in Chapter Five, Part K, Subpart 2." U.S.S.G. § 5H1.3. Section 5K2.13, in turn,

authorizes a district court to grant a downward departure on the ground of a defendant's "significantly reduced mental capacity." Application Note 1 to section 5K2.13 defines "significantly reduced mental capacity" to mean that the defendant "has significantly impaired ability to (A) understand the wrongfulness

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of the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the defendant knows is wrongful." 19. U.S.S.G. § 5K2.13, Application Note 1. Even where a defendant establishes "significantly

reduced mental capacity," he further bears the burden to show "`a causal link between that reduced capacity and the commission of the charged offense.'" United States v. Silleg, 311 F.3d 557, 563 (2d Cir. 2002) (quoting United States v. Prescott, 920 F.2d 139, 146 (2d Cir. 1990)); United States v. Ventrilla, 233 F.3d 166, 169 (2d Cir. 2000) (per curiam) (same). 20. The government does not dispute the diagnosis of Dr.

Choudhary in June 2004, namely that "Mr. Gates presents with signs and symptoms consistent with a diagnosis of Bipolar I disorder as well as antisocial personality traits." (Choudhary Report 13.) The question for the Court is whether the defendant's mental health condition resulted in a significantly reduced mental capacity that contributed to the commission of the offense. 21. Dr. Choudhary's diagnosis does not establish an

impaired ability to understand the wrongfulness of his conduct or to control behavior that the defendant knows is wrongful. See

U.S.S.G. § 5K2.13, Application Note 1 (defining "significantly reduced mental capacity). The Choudhary Report suggests that the By his

defendant was aware of the wrongfulness of his conduct.

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own admission, the defendant often committed crimes because he believed he could outsmart the police, not because he didn't appreciate the wrongfulness of his actions. (Choudhary Report 14.) 22. While the Choudhary Report alludes to the defendant

having periods of impulsivity, which arguably bears some relationship to a loss of control, the report does not show any connection between his condition and the offense of conviction in this case. Nor does the report offer any concrete conclusions as

to the state of the defendant's mental health during the period of the offense. 23. impulse. Moreover, the offense of conviction is not a crime of Rather the defendant's conduct is more consistent with

a calculated effort to an end-result, i.e., the receipt of money to which the defendant was not entitled. The defendant

effectuated this purpose by making multiple false statements to the Social Security Administration over a period of years. 24. As for the opinion of Holly Goss, the Court is not

satisfied that her reports adequately demonstrate a significantly reduced mental capacity at the time the defendant committed the offense. In fact, during period of the offense, specifically, in

the Fall of 2000, the defendant was in therapy with Ms. Goss, who then diagnosed the defendant. According to the Choudhary Report

which summarizes Ms. Goss' diagnosis, in approximately the Fall

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of 2000, the defendant "exhibited mild depression, irritable and anxious mood, with pressured speech and loosening of associations." (Choudhary Report at 5.) Ms. Goss did not report

a bi-polar disorder until her subsequent treatment of the defendant nearly three years later. Hence, the record is at best

unclear as to whether the defendant labored under a significantly reduced mental capacity at the time of the offense. 25. In short, the record does not support the granting of a The record does not

downward departure under section 5K2.13.

adequately prove that the offense of conviction was the result of "an impaired ability either to (A) understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the defendant knows was wrongful." U.S.S.G. § 5K2.13, Application Note 1 (2000 ed.). U.S.S.G. § 5K2.0 26. Citing charitable deeds and viewing the totality of the

circumstances, the defendant further requests a downward departure under section 5K2.0 of the Guidelines. 27. "Where an unusual constellation of factors exists that

removes any sentencing from the `heartland cases, district courts are obligated to consider departures even though no one factor, standing alone, might justify an upward or downward departure." United States v. Leung, 360 F.3d 62, 72-73 (2d Cir. 2004); United States v. Rioux, 97 F.3d 648, 663 (2d Cir. 1996) ("In

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extraordinary cases, however, the district court may downwardly depart when a number of factors that, when considered individually, would not permit a downward departure, combine to create a situation that 'differs significantly from the 'heartland' cases covered by the guidelines.' ") (quoting U.S.S.G. § 5K2.0, cmt.). For a departure to be warranted,

however, the circumstances must be truly extraordinary such that it is evident that they were not adequately taken into consideration by the Sentencing Commission. U.S.S.G. § 5K2.0. 28. The Court has reviewed the various submissions and The defendant's

letters filed on behalf of the defendant.

charitable deeds are noteworthy, and he should be commended for devoting his time and energy to such worthy causes as providing food to underprivileged persons in the community. However, the

facts and circumstances of this case, whether viewed in isolation or in their totality, do not rise to the level of removing this case from the heartland of cases. The Court thus denies the

defendant's request for a downward departure. Assuming Valid Basis Exists for Downward Departure 29. Even if grounds for a downward departure exist in this

case, given the defendant's criminal history, the need to deter others from committing crimes of this nature, and the importance of protecting the public from a defendant who is drawn repeatedly into a variety of criminal activities, the Court in the exercise

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of its discretion would not depart downward.

See 18 U.S.C. §

3553(a) (listing factors to be considered in imposing sentence). Conclusion 30. Because there are no grounds for a downward departure,

the defendant's sentencing exposure under the Guidelines is in the range of 15 to 21 months of imprisonment and $2,000 to $20,000 in fines, corresponding with a total offense level is 10 and a Criminal History Category IV. Restitution in the amount of

$35,003.12, a portion of which the defendant has already paid, is further ordered, the balance of which shall be payable within 30 days. Respectfully submitted, KEVIN J. O'CONNOR UNITED STATES ATTORNEY BY: S. DAVID VATTI ASSISTANT UNITED STATES ATTORNEY FED. BAR NO. ct11957

FOR: BRIAN E. SPEARS ASSISTANT UNITED STATES ATTORNEYS FED. BAR NO. ct14240 UNITED STATES ATTORNEY'S OFFICE 915 Lafayette Boulevard Bridgeport, CT 06604 (203)696-3000 [email protected]

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CERTIFICATE OF SERVICE I hereby certify that I caused a copy of the foregoing to be delivered on the 12th day of November 2004 to: Frederick Paoletti, Esq. (Via Facsimile & Regular Mail) Paoletti & Gusmano 3301 Main Street Bridgeport, CT 06606 Jose Cartagena (Via Hand-Delivery) United States Probation Officer 915 Lafayette Blvd. Bridgeport, CT 06604 Hon. Christopher F. Droney (Via Hand-Delivery) United States District Judge United States Courthouse 450 Main Street Hartford, CT 06103

___________________ S. DAVID VATTI ASSISTANT U.S. ATTORNEY For: BRIAN E. SPEARS ASSISTANT U.S. ATTORNEY

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