Opinion
00 Cr. 1288 (AKH)
January 24, 2003
OPINION AND ORDER ON RESENTENCING
I write in connection with the resentencing of Edward Bello, following the reversal by the Court of Appeals of the sentence I ordered on December 14, 2001.
With misgivings, and because of concern for Bello's wife who was seriously afflicted with Crohn's disease and who needed her husband's help for day-to-day care and sustenance, I had sentenced Bello to 10 months' home detention rather than custodial confinement. I conditioned the sentence by ordering that Bello not have access to television during his period of home detention, in order that the deprivation might cause him "to reflect on the ways of his life and the harm that he has brought to his family." I warned him of the likelihood of "far more severe punishment" if he were again to commit a crime.
The Second Circuit reversed. It considered that the condition of no television was intended to "jump-start the defendant's conscience," and that the condition was unprecedented and "without analog," and did not "appear to have been designed to further respect for the law, to impose just punishment, to deter criminal conduct, or to provide Bello with needed training" — these being the purposes for attaching conditions to a sentence of probation. U.S.S.G. § 5B1.3(b); see 18 U.S.C. § 3563(b). Because my sentence had not forbidden "other amusements. . . available to him at home," such as the internet and radio, the condition was not likely to achieve its purpose, and furthermore, Bello was "as likely to occupy his mind by planning his next crime as anything else."
No social scientist and certainly not a district judge knows the elixir that can convert a petty recidivist to a law-abiding citizen. The district judge is to "fashion an individualized set of conditions appropriate to each defendant," but no judge can predict that such an "individualized set," or even a conventional set, of conditions will "promote respect for the law" or "afford adequate deterrence to criminal conduct," or "protect the public from further crimes of the defendant." U.S.S.G. § 5B1.3(D); see 18 U.S.C. § 3563(b).
The sentence I ordered on December 14, 2001 never went into effect; it was stayed by order of the Court of Appeals dated February 26, 2002 to permit defendant to proceed with an appeal. Accordingly, until today, to the date of this resentencing, Bello has not served a day of home detention pursuant to my original sentence. Nor has he served a day in custody, not for the initial crime for which I sentenced him, and not with respect to any of the crimes he previously committed, as described in the decision of the Court of Appeals and noted in my prior decisions.
Now Bello appears to have committed still another crime. On October 29, 2002, six days after the Court of Appeals delivered its decision ruling against the no-TV condition and remanding the case to me for resentencing, Bello and a confederate stole from a gym locker in a YMCA gym in mid-Manhattan. A grand jury in the New York Supreme Court, County of New York has indicted Bello for one count of burglary in the third degree and eight counts of grand 2 larceny in the fourth degree. A video tape recording the events in the locker room on October 29, 2002 shows Bello identifying a locker and functioning as look-out while a confederate opened the locker and lifted a wallet from the unsuspecting victim. Bello, who used a false identity to enter the gym, is seen repeatedly going to and from his locker, folding and unfolding a towel, without any apparent purpose other than serving as an accomplice and look-out. The confederate was apprehended upon exiting from the gym with credit cards belonging to six individuals. Bello's criminal involvement was clear to see.
No one will know if time in home detention and reflection without television would have caused Bello to change his habit of criminality. Presumably, it would not have changed Bello's ways, for changing a habit requires a desire and willingness to change, and Bello has shown no such desire or willingness to change his habit of criminality. Thus, we are confronted with a pattern of thefts from gym lockers: one for which he was convicted on August 7, 1997 and sentenced to a year's probation; a second, the conspiracy to use credit cards stolen from gym lockers to which he pleaded guilty and for which he is being resentenced; and now the third which he committed on October 29, 2002.
The issue is how Bello should be sentenced under the Sentencing Guidelines for having conspired in October and November 1999 to use stolen credit cards, the crime to which he pleaded guilty and for which he is now to be resentenced. Bello's Offense Level, after adjustment for the magnitude of his criminal use, is 10. U.S.S.G. § 2B1.1(a), (b)(1). His Criminal History category, at the time of my original sentencing, was II, based upon his having been sentenced to a year's probation for a 1992 state conviction of possession of a gambling device and to a year's probation for the 1997 state conviction of conspiracy to steal credit cards 3 from a gym locker.
When I sentenced Bello in December 2001, I granted him a two-level downward adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, based on his guilty plea. Thus, his total offense level was 8 and, with a Criminal History Category of II, the applicable range of custodial punishment under the Sentencing Guidelines was four to ten months, within Zone B. I sentenced Bello to five years probation in lieu of custodial punishment, the first ten months of which was to be served in home detention subject to the condition of no-television, as well as other mandatory, standard and special conditions.
The Court of Appeals has remanded the case for resentencing. By my order of January 10, 2003, I gave notice to the parties that I wished to consider, in light of Bello's post-guilty plea conduct, whether or not to deny Bello an adjustment for acceptance of responsibility, U.S.S.G. § 3E1.1, and whether or not Bello's Criminal History category of II failed adequately to reflect the seriousness of his past criminal conduct or the likelihood that he would commit other crimes, U.S.S.G. § 4A1.3. Both the Government and the defendant made submissions. For the reasons discussed below, I find that Bello has not accepted responsibility for the crime he committed and for which he is to be sentenced, and I hold that he therefore is not entitled to a credit under Section 3E1.1. I find also that Criminal History category II does not adequately reflect the seriousness and consequences of his criminal history, and that the category should be adjusted upward to category III. The range of custodial punishment provided by the Sentencing Guidelines is 10 to 16 months. See U.S.S.G., ch. 5, Part A.
Adjustment for Acceptance of Responsibility
Section 3E1.1(a) of the Sentencing Guidelines provides a two-level reduction in offense level "[i]f the defendant clearly demonstrates acceptance of responsibility for his offense." While entry of a guilty plea prior to trial, coupled with a truthful admission of the conduct comprising the offense, will constitute significant evidence of acceptance of responsibility, "this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility." U.S.S.G. § 3E1.1, Commentary, Application Note 3. "A defendant who enters a guilty plea is not entitled to an adjustment under this section as a matter of right." Id.
The Second Circuit has held that a defendant's post-guilty plea conduct can be considered in determining whether the defendant has genuinely accepted responsibility for the conduct for which he has been charged. In United States v. Woods, the court found that "continued involvement in criminal activity casts substantial doubt on the sincerity of a defendant's protestation of contrition, and a court is well within its discretion in considering such involvement in setting a defendant's sentence," so long as the other crimes have been proven by at least a preponderance of the evidence. 927 F.2d 735, 736 (2d Cir. 1991) (per curiam). Courts have repeatedly relied on Woods to deny a section 3E1.1 adjustment when the defendant's post-plea conduct revealed the insincerity of a defendant's claim to acceptance of responsibility. For example, a court found that the record contained ample evidence of conduct contradicting acceptance of responsibility, where the defendant violated the terms of his release by moving his residence without notifying the property authorities; testing positive for morphine and codeine; and failing to take advantage of opportunities for drug rehabilitation and counseling. See United 5 States v. Harris, 13 F.3d 555, 557 (2d Cir. 1994). In United States v. Guzman, the court affirmed a district court's inference that the defendant's post-plea visits to the Department of Motor Vehicles indicated continued trafficking in false drivers' licenses and a failure to accept responsibility. 282 F.3d 177, 184-85 (2d Cir. 2002).
I find that Bello has rejected, rather than accepted, responsibility for his 1999 crime. Bello's continued criminal conduct this past October, even while awaiting resentencing for his 1999 offense, shows this clearly. I find, by at least a preponderance of the evidence, that Bello engaged in criminal acts in October 2002. The videotape of the YMCA men's locker room leaves no doubt of Bello's culpability in identifying a target locker to a confederate and serving as a lookout while the confederate stole a wallet from the locker. Bello had been observed at the gym several times in the months before October 29th; gained entry to the YMCA by using a false photo ID in the name of "Frank Russo"; the gym was far from his home and place of work; and Bello seemed not to be pursuing an purpose other than serving as a lookout. His October 2002 crime, in its similarity to the offense he committed in 1999 and while awaiting resentencing for his conviction of that crime, demonstrate that his professed acceptance of responsibility for his 1999 crime was insincere. He is not entitled to the downward adjustment for acceptance of responsibility provided by section 3E1.1 of the Sentencing Guidelines, and I decline to give him an adjustment.
Bello has pleaded not guilty to the state court indictment of the October 29, 2002 incident. Bello has a constitutional right to plead not guilty and to refuse to incriminate himself. Nothing I have done, in considering whether or not Bello has accepted responsibility for committing the 1999 offense, requires Bello to admit responsibility for the October 2002 incident. Bello is presumed innocent of the grand jury indictment until proven guilty beyond a reasonable doubt to the unanimous satisfaction of a jury convened in that case, or until a plea of guilty is entered. However, as United States v. Woods recognized, Fifth Amendment concerns are not implicated when a district court looks at a defendant's later crimes when making a determination regarding acceptance of responsibility, so long as the court does not require the defendant to admit to these other crimes. See 927 F.2d at 736. I deny a credit adjustment in this case because the facts that I found from the proofs presented by the Government concerning Bello's October 2002 offense shows that Bello did not accept responsibility for his 1999 offense.
Upward Departure in Criminal History Category
Section 4A1.3 of the Sentencing Guidelines provides that "[i]f reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes, the court may consider imposing a sentence departing from the otherwise applicable guideline range." The information that can be considered by the sentencing judge includes five categories of information enumerated by the section, but is not limited to such. See U.S.S.G. § 3E1.1. "[T]he critical question under § 4A1.3 is whether the criminal history category adequately reflects the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes. If that question can be answered in the negative, it is not unreasonable to depart from the guidelines." United States v. Keats, 937 F.2d 58, 66 (2d Cir. 1991).
Bello has two adult criminal convictions in addition to those already discussed — a 1973 conviction for simple assault and a 1978 conviction for disorderly conduct, both too old to 7 figure in the computations of criminal history under the Sentencing Guidelines. U.S.S.G. § Section 4A1.2(e)(3). He has also been arrested numerous times spanning a period from 1959 to 1988, on charges ranging from burglary and larceny to resisting arrest and criminal impersonation. These early convictions and arrests have not entered into my evaluation of his Criminal History category. But they do show a long-time penchant for criminal conduct which remain a consistent part of his behavior.
I am deeply troubled by Bello's repeated commission of the same crime: acting with others to break into gym lockers and steal wallets. When I originally sentenced him, he had twice perpetrated this offense causing the Court of Appeals to remark that even though the crimes were "virtually identical," "no criminal history points were added." Bello's most recent crime of October 2002, also "virtually identical," reinforces the pattern of his criminality, and shows his brazenness, for he committed his crime less than a week after his sentence was vacated by the Court of Appeals, while he was awaiting resentencing for his 1999 crime.
In determining the adequacy of the Criminal History category, a court is not restricted to looking at conduct occurring prior to the offense for which a defendant is being sentenced. An upward departure in criminal history category can be based on a defendant's post-arrest state court convictions, and before he is sentenced for that conviction. See United States v. Keats, 937 F.2d at 65-67. In Keats, as with Bello, the defendant's post-arrest conviction by the state court was for the same type of criminal conduct that had caused the defendant to be arrested and found guilty in the federal court, and thus was found to be "particularly egregious." Id. at 66-67. Citing cases in the First, Fifth, Seventh and Tenth Circuits, the court ruled that the Sentencing Guidelines gave the district judge discretion to depart upwardly in criminal history 8 category based on post-arrest conduct. Id., citing United States v. Fortenbury, 917 F.2d 477, 479 (10th Cir. 1990); United States v. Brown, 899 F.2d 94, 97-98 (1st Cir. 1990); United States v. Fayette, 895 F.2d 1375, 1380 (11th Cir. 1990); United States v. Sanchez, 893 F.2d 679, 681-82 (5th Cir. 1990); United States v. Jordan, 890 F.2d 968, 976-77 (7th Cir. 1989). "[T]he core limitation on the use of conduct under Section 4A1.3 is not the temporal relationship of the conduct to the sentenced offense, but rather that the conduct is separate from the offense for which the defendant is being sentenced, because conduct related to the offense is taken into account by other portions of the Sentencing Guidelines." United States v. Cusack, 66 F. Supp.2d 493, 507-8 (S.D.N.Y. 1999) (reconciling Keats and United States v. Hernandez, 941 F.2d 133 (2d Cir. 1991)).
A Criminal History category of II does not adequately reflect the seriousness of Bello's recidivism, his indifference to the criminal law, his lack of respect for the rights and property of others, and his willingness to commit crimes even when awaiting resentencing. As was the case in United States v. Keats, I am entitled to consider Bello's crime in October 2002 in evaluating whether or not a Criminal History category of II adequately reflects the seriousness of Bello's past criminal conduct, or the likelihood that he will commit other crimes. Given the particulars of Bello's case, I hold that category II is inadequate and the addition of two criminal history points, thus resulting in the application of category III, is appropriate.
Such a horizontal departure pursuant to section 4A1.3 of the Sentencing Guidelines does not constitute a double counting, even though I considered the 2002 crime relevant evidence when evaluating the two-point credit for acceptance of responsibility under section 3E1.1. Sections 3E1.1 and 4A1.3 are two separate evaluations under the Sentencing 9 Guidelines, aimed at judging two distinct aspects of a defendant's character and conduct. As United States v. Campbell held, "it may be appropriate to count a single factor both in assessing the defendant's criminal history category and in calculating the applicable offense level since the two measure different things." 967 F.2d 20, 24 (2d Cir. 1992). "The offense level represents a judgment as to the wrongfulness of the particular act," while the "criminal history category principally estimates the likelihood of recidivism." Id. The same factor can be used when appropriate to deny an adjustment for acceptance of responsibility and grant a sentencing enhancement. See, e.g., United States v. Martinez-Rios, 143 F.3d 662, 678 (2d Cir. 1998) (affirming a sentence that denied a section 3E1.1 credit and imposed a two-level enhancement for obstruction of justice based on same conduct by defendant); United States v. Then, 56 F.3d 464, 466 (2d Cir. 1995) (same); United States v. Cawley, 48 F.3d 90, 95 (2d Cir. 1995) (affirming an upward departure pursuant to section 7B1.4 of the Sentencing Guidelines and the denial of a section 3E1.1 adjustment, when both were premised on defendant's state crimes). My ruling that Bello is not entitled to a credit for accepting responsibility is based on my judgment that Bello has failed to accept that his conduct in misusing the stolen credit cards in 1999 was wrongful. My ruling on the inadequacy of Criminal History Category II is based on the seriousness of Bello's criminal history — the established pattern of credit chard thefts, of which the October 2002 offense is just the latest example — and the high likelihood of his recidivism. These are different evaluations, based on different considerations, and both may figure in evaluating a proper sentence for a defendant.
Consideration of the October 2002 offense also does not constitute a double-counting in relation to the punishment that may be given to Bello under state law. See United 10 States v. Stevens, 985 F.2d 1175, 1187 (2d Cir. 1993) (noting that "if the federal court does not depart to take account of the unsentenced state crimes, there is no assurance that the entire range of the defendant's pertinent history will be considered in either proceeding").
Accordingly, for the reasons stated, I believe that a Criminal History Category of II is inadequate and that a horizontal departure of one category is required in order to reflect the defendant's prior serious, similar criminal activity and to deter the defendant from committing additional crimes.
Term of Custody Imposed
At a Criminal History Category of III and offense level of 10, the range of custodial punishment under the Sentencing Guidelines is ten to sixteen months. I sentenced Bello to 15 months. As I said to him during the sentencing hearing: "Fifteen months in jail will give you the time to reflect on where you have allowed your life to go and how you failed your wife and how you failed your daughters and how you need to change."
Bello did not use this past year as an opportunity to change his life. Instead, he against resorted to crime. The 15-month jail term is the consequence of his 1999 crime; his failure to accept responsibility for it; and the seriousness of his criminal history and likelihood of recidivism.
SO ORDERED.