MEDIA

August 13, 2004

Sentencing Guidelines, Enhancements, Employment Discrimination

Published in: New York Law Journal | volume 231
Written by: Peter R. Schlam and Harvey M. Stone

In the U.S. District Court for the Eastern District of New York, Judge Jack B. Weinstein reimposed a second non-incarceratory sentence, on remand from the U.S. Court of Appeals for the Second Circuit and commented extensively on both federal sentencing practice after Blakely and the historical role of courts and juries in sentencing. In another case, Judge Weinstein ordered a post-plea jury trial on disputed sentencing enhancements, prompting defense counsel to concede that the enhancements applied. And Judge Arthur D. Spatt denied motions to dismiss employment discrimination claims made by a Coptic Christian woman.

After ‘Blakely’

In U.S. v. Kahn, 02 CR 1242 (EDNY, July 12, 2004, amended July 20, 2004), Judge Weinstein sentenced to probation a defendant who had attempted to board a plane to Pakistan with over $293,000 in cash hidden in his luggage and then told U.S. government agents that he was carrying only $12,800 in cash. Defendant was a recent Pakistani immigrant planning to visit his homeland to share proceeds of his business success, and that of his friends, with their needy families in Pakistan. The sentence of probation was imposed under U.S.S.G. § 2S1.3(b)(2), which prescribes a decrease in the offense level to 6 if "… (B) the defendant did not act with reckless disregard of the source of the funds; (C) the funds were the proceeds of lawful activity; and (D) the funds were to be used for a lawful purpose[.]’

The decision discusses both the harsh rigidity of the guidelines and ways to deal with the guidelines following Blakely v. Washington, 2004 WL 1402697 (U.S. June 24, 2004). There, the Supreme Court invalidated Washington State’s sentencing guidelines under the Sixth Amendment to the extent that they authorized fact-finding by a court, rather than a jury, of enhancement factors requiring a sentence above the applicable range. In Judge Weinstein’s view, "Blakely does not–as some have speculated–constitute the death knell of the Federal Sentencing guidelines."

Defendant Kahn, with only a sixth-grade education, had worked at menial jobs in the United States until he and his partners were able to open up several fried chicken restaurants in a lower-income area of Camden.

He was found guilty, after a jury trial, of cash smuggling, making false statements, and conspiracy. He now faces civil forfeiture proceedings. Judge Weinstein originally imposed a no-jail sentence (including 5 months’ home confinement and a $7,500 fine), by granting a downward departure based on family circumstances and the impact of incarceration on Kahn’s business and employees.

The Second Circuit reversed and remanded for resentencing on the ground that further fact-finding was necessary to reassess the appropriateness of a downward departure. As Judge Weinstein noted, the Court of Appeals generously added that the order of remand "does not foreclose application of [U.S.S.G. § 2S1.3(b)(2) (eff. Nov. 1, 2001)], assuming appropriate showings and findings.’

A More Humane System?

Judge Weinstein found that subsection, which permits a probationary sentence, to apply here. The court concluded: "Given the defendant’s background and responsibilities to his own and other families and business associates, a prison sentence is not appropriate." Slip op. 27.

Judge Weinstein also observed:

Blakely does provide Congress, the courts and the Sentencing Commission with an opportunity and obligation to reevaluate and revise the guidelines. They are presently, in general (but not as applied in the present case), overly rigid, overly complex, overly harsh, and overly expensive to taxpayers and society. Blakely’s reintroduction of the jury into the present sentencing process suggests the desirability of making the guidelines discretionary guideposts–as their name implies–rather than mandatory precepts, inflexible commands.

Reliance on a jury for sentencing, the court added, could provide a "more humane and effective system of justice," for there are occasions when "an advisory jury selected from a representative cross section of the community may serve to bridge the lifestyle and empathy gap between judge and criminal[.]’

In commenting on the survival of the guidelines after Blakely, Judge Weinstein emphasized that "the jury’s participation in sentencing has deep roots in this country’s history and may be incorporated in the constitutional right to a jury trial." In many cases Blakely will result in plea agreements in which the defendant concedes facts that Blakely requires to be found by a jury. "In the few cases of a trial," Judge Weinstein stated, "after the guilty verdict, the special questions required for enhancement of the sentence can be put to the jury as in capital cases." Slip op. 11.

On July 2, 2004, the Department of Justice directed a communication to all prosecutors on Blakely. The memorandum takes the position that Blakely does not apply to the Federal Guidelines. This position, according to Judge Weinstein, "seems plainly wrong." As to the government’s fallback position, Judge Weinstein observed:

The first point of the Department of Justice–the guidelines should be applied if a factual issue left unresolved by jury verdict or admitted fact does not exist–is correct. The second point–that a defendant may waive or stipulate to avoid Blakely–is also correct. The third point–that when Blakely applies, traditional sentencing without guidelines should be used —- is a possible alternative. A second alternative is to apply the guidelines without enhancement. A third alternative is to use a jury to decide the special enhancement facts. The trial judge should have discretion to use any of these alternatives, with the advice of counsel, since procedural difficulties in the individual case need to be weighed by the court in deciding whether use of a jury is practicable.

Judge Weinstein foresaw little impact from Blakely on federal sentencing, given the high likelihood that, to avoid the resulting chaos, it will not be applied retroactively.

Reviewing the historical evolution of jury and court cooperation and discretion in sentencing from late colonial practice to the present, as well as the modern decreased use of juries in sentencing (Slip op. 14-26), Judge Weinstein concluded:

It is not aberrational to suggest that use of a jury on sentencing issues of fact —- and perhaps on severity —- is consistent with history, practice and the inherent role of federal courts and juries.

‘Reliance on the jury," moreover, reflects "our government’s dependence on the ultimate and residual sovereignty of the people." Slip op. 25-26.

Here, there was no need for an advisory jury because, as both parties conceded, "the non-custodial sentence does not require jurors’ factual findings supporting grounds for departure." Slip op. 26.

The court found no reason to treat Kahn as a dangerous conspiring gang member. Nor was there any basis to apply the Feeney Amendment, see 18 USC § 3742(g)(2), which prohibits a downward departure "outside the applicable guidelines range" unless the ground for departure was relied upon in the previous sentencing and approved on appeal. Here, the new sentence after remand was not outside the applicable range. Subsection 2S1.3(b)(2) independently dictated a range of probation to up to six months’ imprisonment, and no downward departure came into play.

In light of the probationary sentence, it was not necessary to decide whether "this and other Guidelines changes have by now so interfered with appropriate judicial discretion under Article III … as to be unconstitutional.’

Finally, the court stated that a term of probation is the sentence it "would have imposed under its general powers were the Guidelines unconstitutional." Slip op. 30.

Sentencing Jury

In U.S. v. Landgarten, 04 CR 70 (EDNY, July 15, 23, 2004), Judge Weinstein, applying one of the approaches discussed in U.S. v. Kahn, supra, ordered that a trial before a sentencing jury would be held to decide on enhancements.

Following his guilty plea to theft or embezzlement from an employee pension plan, defendant’s offense level called for a range of 0 to 6 months’ incarceration. The government sought an eight-level enhancement for loss of more than $70,000, and a two-level enhancement for abusing a position of trust. Applying these factors would result in a range of 15 to 21 months.

Because defendant did not concede that these enhancements applied, Judge Weinstein ordered a jury trial to decide the enhancement factors, based on a reasonable doubt standard. The court also ordered various submissions to be made at a pretrial conference, and asked the parties to brief the question whether the Federal Rules of Evidence control the sentencing phase.

The next day, on further reflection, defense counsel notified the court that there would be no objection to the enhancements and thus no need for a jury trial.

Employment Discrimination

In Gad-Tadros v. Bessemer Venture Partners, 03 CV 3579 (EDNY, July 26, 2004), Judge Spatt declined to dismiss employment discrimination and retaliation claims based on plaintiff’s religion and race, finding that she had adequately pleaded the elements of claims under Title VII and § 1981.

Plaintiff is a Coptic Christian female of Egyptian and Arab national origin and race. She worked as an accountant from December 1999 through January 2001 for defendants Bessemer Venture Partners and Deer Management Co. LLC. There were no other employees of the same religion, national origin or race as plaintiff.

According to the complaint, after March 2001, when defendant Corinne Pankovcin became plaintiff’s direct supervisor, plaintiff was treated in a harsh and abusive manner. Pankovcin allegedly belittled her national origin, race, surname and Egyptian education and background, and threatened to demote plaintiff. At the same time, both companies promoted less qualified workers with less seniority than plaintiff, and deprived her of training opportunities necessary for her continued employment. Plaintiff complained to two supervisors, defendants Robert Buescher and Edmund Colloton, who promised they would admonish Pankovcin, but they purportedly did nothing. Finally, plaintiff alleged that the ongoing discrimination resulted in her "constructive discharge." Then, when she continued to complain about her treatment and refused to sign a release, defendants withdrew two weeks of severance pay from her account.

Judge Spatt found that plaintiff had met the requirements under the liberal pleading standard set forth in Federal Rule of Civil Procedure 8(a) for a Title VII claim against the corporate defendants on the ground of her race, religion and national origin. First, she was a member of a protected group as a Coptic Christian female of Egyptian and Arab national origin and race. Second, she was qualified for the position. Third, she alleged that her employer took adverse employment action against her by passing her over for promotions and depriving her of necessary training for reasons of religion, national origin and race. Fourth, the complaint stated that she was the only employee of the same race, religion or national origin, and that employees who were less-qualified and of lower seniority were promoted over her.

Similarly, plaintiff had given fair notice of her retaliation claim and the grounds upon which it rested by alleging that (1) she complained on numerous occasions of discrimination, which is a protected activity; (2) she was constructively discharged due to her discrimination complaints; and (3) defendants retaliated against her by withdrawing two weeks of severance pay.

Section 1981 claims, Judge Spatt noted, are analyzed under the same standards as Title VII claims. Section 1981 prohibits intentional race-based discrimination in the workplace, but does not prohibit discrimination based on national origin. Since § 1981 provides for individual liability on the part of non-employers, the court found that plaintiff had stated a claim against the individual defendants who were her supervisors —-Buescher, Pankovcin and Colloton.

Judge Spatt also found plaintiff’s claims under the New York Human Rights Law to be sufficiently pleaded against her employers and the individual defendants.

Peter R. Schlam and Harvey M. Stone are partners at Schlam Stone & Dolan.

[This article is reprinted with permission from the August 13, 2004, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]