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U.S. v. KANE

March 24, 2000


The opinion of the court was delivered by: Katz, Senior District Judge.


Before the court is defendant Michael Kane's motion for a downward departure from the applicable Sentencing Guidelines range for extraordinary rehabilitation. On March 23, 2000, the court held a hearing and ruled from the bench that the defendant merited a downward departure to a sentence of 120 months imprisonment.


On April 19, 1999, Michael Kane pled guilty before this court to two counts of distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1). On two occasions in 1998, he sold a total of five ounces of methamphetamine to a "confidential source." Based on the defendant's prior convictions, he qualifies as a career offender with a base offense level of 31 and a criminal history category of VI. All parties agree that the range of imprisonment required by the Sentencing Guidelines in the absence of a departure for extraordinary rehabilitation is 188 to 235 months.*fn1


Ordinarily, a defendant must be sentenced within the ranges established in the Sentencing Guidelines unless the court finds "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b). The guidelines apply only to a "heartland" of typical cases: "Atypical cases were not `adequately taken into consideration,' and factors that may make a case atypical provide potential bases for departure." Koon v. United States, 518 U.S. 81, 94, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (citations omitted); see also U.S.S.G. § 5K2.0 (permitting departures for aggravating or mitigating circumstances not adequately considered by guidelines).

The Sally holding's emphasis on a change in behavior suggests that it is inappropriate to grant a departure for extraordinary rehabilitation when the defendant simply engages in good conduct following conviction. For example, in United States v. Jaramillo, 4 F. Supp.2d 341 (D.N.J. 1998), the court declined to grant a downward departure for extraordinary rehabilitation when the defendant's concededly excellent prison record, which included job-training, adult education coursework, and tutoring other inmates, was consistent with his pre-incarceration work experience and educational attainment. See id. at 350-51; see also United States v. Faulks, Crim.A. No. 96-299-01, 1998 WL 964223, at *4 (E.D.Pa. Oct.9, 1998), rev'd on other grounds, 201 F.3d 208 (3d Cir. 2000) (holding no departure warranted when primary basis for request was admittedly excellent record at prison, consisting of coursework, mentoring, working with prison to develop job programs; stating that defendant had not overcome any particular hardship in so doing).*fn2 The court should also look to the voluntary nature of the defendant's actions. See United States v. Leon, 2 F. Supp.2d 592, 595 (D.N.J. 1998) (declining to grant departure when large amount of restitution paid simply complied with settlement governing applicable civil penalties and defendant's decision to forego claims against government resulted from hard bargaining).

Michael Kane is a forty-three year-old man who has used and abused illegal drugs and alcohol for at least twenty-five years. His current crimes followed a period of particularly severe addiction: after losing his lunch truck business as a result of his addiction, he began selling drugs to obtain money for his own habit. While under supervision of Pretrial Services, he tested positive for drug use several times between December 1998 and May 1999. However, following Mr. Kane's admittance into the Mirmont Treatment Center on May 21, 1999, he has not tested positive for drug use and has submitted twenty-one negative urine samples. See Pretrial Serv. Report of Mar. 21, 2000, at 2 (filed by Order of Mar. 21, 2000); Dr. Holly Grishkat's Report of Mar. 16, 2000 (filed by Order of Mar. 21, 2000). He completed the Mirmont program on June 18, 1999, and, since that time, he has attended outpatient treatment three to four times a week with Dr. Grishkat and has seen a psychiatrist once a month for medication. He has also participated in Alcoholics Anonymous and Narcotics Anonymous meetings.

It is clear that the time Mr. Kane spent at Mirmont helped him immensely. For example, on October 12, 1999, Dr. Alex Siegel, a clinical and forensic psychologist, evaluated Mr. Kane's "current cognitive and emotional function, ma[d]e treatment recommendations for him to follow, and . . . offer[ed] a professional opinion for his rehabilitation from drugs and alcohol." See Def.Sent.Mem. at Ex. A. Dr. Siegel stated, "Prior to entering Mirmont, Mr. Kane never took his sobriety seriously and never accepted responsibility for it. With the possible exception of previous incarcerations, this is Mr. Kane's longest period of sobriety." Id. Dr. Siegel acknowledged that Mr. Kane was in the early stages of treatment but considered him to have made "significant strides." Id.

Dr. Grishkat's notes recounting Mr. Kane's treatment from June 30, 1999, until December 30, 1999, also support this conclusion. See Def.Sent.Mem. at Ex. C. While Mr. Kane resisted acknowledging the full extent of his substance abuse problems, he also made genuine efforts to change his behavior, with a considerable degree of success. He stopped using drugs, he attempted to change his friends and associates, and he gradually reduced his alcohol consumption.*fn3 In the course of this treatment, Mr. Kane also weathered a change in attorneys that obviously affected him strongly, as well as the feared repercussions of having himself and his brother publicly labeled as "informants" by his former associates.

The court also acknowledges the most recent reports submitted by Pretrial Services and Dr. Grishkat. Dr. Grishkat's report, dated March 16, 2000, summarizes the treatment provided to Mr. Kane over the past nine months. Her report notes that he has failed to attend a number of appointments but lists the following areas of progress:

1. Michael reports no drug use since beginning of treatment here at PCHD. This concurs with reports from Donna Makowiecki[, Pretrial Services,] on clean urine screens.
2. Michael reports significant reduction in drinking of alcohol. No ongoing consumption. Admits to drinking 23 beers at special occasions ...

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