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
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
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
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
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."
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 ...