repair and to rebuild their lives." Id. at 81. "[A]t a minimum, there
must be evidence demonstrating that a defendant has made concrete gains
toward `turning [her] life around' before a sentencing court may properly
rely on extraordinary post-conviction rehabilitation efforts as a basis
for a downward departure." Id. Such a departure is proper "provided that
the sentencing court makes factual findings demonstrating that the
defendant has achieved real gains in rehabilitating [herself] and
changing [her] behavior." Id. at 82. The Third Circuit instructs
sentencing courts to "determine whether [the defendant's] post-conviction
rehabilitation efforts are remarkable and indicate real, positive
behavioral change." Id. at 81.
Defendant says that since his arrest, he has attended numerous Adult
Continuing Education courses, along with parenting workshops. He also
intends to enroll in a comprehensive drug treatment program. Through
these measures, he says that "he has progressively pursued avenues to not
only enhance his own life and standards of living, but those of his
family as well." Pro se Mot. and Mem. at 6. On this basis, he argues for
a downward departure for extraordinary post-offense rehabilitation
efforts under Sally.
Mr. Reyes's participation in programs offered at the prison are
commendable, and the court sincerely encourages him to continue taking
advantage of the available opportunities. His activities, however, do not
constitute the sort of extraordinary circumstances contemplated by the
Guidelines and by Sally, and the court declines to depart.
Defendant reports that he has been housed in several county jails: for
roughly five months at Curran Fronthold Correctional Facility, over three
months at Philadelphia Correctional Center, and almost two months at
Passaic County Jail. He says that he has been "subjected to not only
cruel and unusual treatment, but to deplorable living conditions as
well." Pro se Mot. and Mem. at 8. From this, defendant argues that these
circumstances have not been taken into consideration adequately by the
Guidelines and thus under Koon v. United States, 518 U.S. 81 (1996),
provide the basis for a downward departure.
It is true that deplorable jail conditions have been recognized by
other districts in this Circuit as a possible basis for a downward
departure, see United States v. Sutton, 973 F. Supp. 488, 493 (D.N.J.
1997) ("There can be little doubt that pretrial detention in substandard
conditions can have a punitive effect not contemplated by the
Guidelines.").*fn1 No evidence has been presented in this case that
warrants a similar departure. Defendant has not presented any evidence of
any specific conditions at any of the jails, and his bald assertion of
deplorable conditions is certainly not sufficient to convince the court
that his case is outside of the heartland of cases so that the highly
infrequent measure of departing should be taken.
In light of the parties' new stipulations, Mr. Reyes' objections
to the crack references
in the PSI are moot. His Reyes arguments
for decrease of offense level and for downward departure fail.
An appropriate Order follows.
AND NOW, this 2nd day of July, 2001, pursuant to Federal Rule of
Criminal Procedure 32(c)(1), and after considering the Presentence
Investigation Report, defendant's pro se letter to the court (doc. 20),
defendant's pro se Motion and Memorandum for Reduction of Sentence (doc.
22), and after the sentencing hearing, it is hereby ORDERED that the
motion is DENIED for the reasons set forth in the preceding Memorandum.