The opinion of the court was delivered by: Chief Judge Kane
Before the Court is the Government's motion to permit departure from Defendant Derek Maes's ("Maes") sentence pursuant to 18 U.S.C. 3553(e) and Rule 35 of the Federal Rules of Criminal Procedure. (Doc. No. 1912.) The Government requests that the Court reduce Defendant Maes's sentence by 25%, from 168 months to 126 months. This motion is concurred in by the Defendant. (Doc. No. 1917.) For the reasons that follow, the motion will be granted in part.
On December 8, 2005, Maes was named in a multiple defendant indictment charging various crimes related to his' involvement in an interstate sex trafficking conspiracy. (Doc. No. 20.) On February 26, 2007, Maes pleaded guilty to conspiracy to engage in interstate prostitution in violation of 18 U.S.C. § 371 (Count One), interstate travel in aid of racketeering in violation of 18 U.S.C. § 1952(a)(3) (Count Two), and sex trafficking of children in violation of 18 U.S.C. § 1591 (Count Seven). (Doc. No. 1912 at 1.) As part of the recitation of the factual basis of Maes's plea, the Government proffered the following facts:
Derek Maes was engaged in prostitution as a pimp, that is, an individual who recruits, directs, manages, oversees, disciplines, and lives off the earnings of prostitutes. [Pimps] pass information regarding police activity in the area, and they assist other pimps in hiding women who may become witnesses against them. . . . Now, the defendants, including Mr. Maes, were also involved in the interstate trafficking of juveniles. That is, they recruited and enticed and they harbored, they transported, and they provided and obtained girls under the age of 18 to work for them as prostitutes . . . . In one case, Mr. Maes, among others, prostituted a juvenile . . . who at the time was 13 years old. . . . [A] fixed aspect of the conspiracy involved the use of force and violence against women who were being prostituted. Women were beaten if they failed to make their financial quota of earnings for the night, if they attempted to leave a particular pimp, if they looked at or spoke to another pimp, or if they were out of pocket, that is, they were not at work prostituting themselves but were instead attending to their own needs and interests. Mr. Maes and his co-defendants practiced coercion on the women being prostituted by placing them in constant fear of reprisal if they failed to meet their pimp's expectations. (Plea Tr. at 20:10-22:10.) Maes acknowledged the truth of the Government's recitation without alteration. (Id. at 26:18-25.) Maes's Pre-Sentence Investigation Report ("PSR") further details the extreme violence Maes inflicted on the victims of this conspiracy:
S.S. said Maes used to 'flip out' all the time. S.S. said in addition to using his hands and feet, Maes used twisted hangers, bamboo sticks, dog chains, and fish tank hoses during beatings. S.S. said she generally tried to fight back against Maes, except when he used weapons. S.S. said when Maes used weapons, she did not fight back. S.S. witnessed Maes beat another prostitute, R.S., with a bamboo stick.
A.M. (a juvenile) said Maes beat her with his fists or a metal clothes hanger. A.M. said she was beaten for 'getting smart' with Maes, for lying to him, and also if she did not make enough money. A.M. said Maes was violent and always threatened her. A.M. said Maes would allow her to visit her family, but told her if she did not return, he would kill her family. A.M. recalled an occasion when Maes beat her with about twenty extension cords tied together. . . .
L.G. said she had to go to the hospital several times for treatment of injuries inflicted by Maes. L.G. said she had to have her ear stitched on, had staples in her head, and had staples in her top lip because it was split in half. L.G. said there were many times when the beatings did not require a hospital visit. L.G. said she was beaten for just about anything and there were times when Maes said he would 'beat your ass for something you were going to do.' (PSR ¶¶ 33, 34, 39.)
On September 2, 2008, Maes appeared before the Court for sentencing. The Court adopted the PSR without objection, including the PSR calculated guideline sentence of life. Because the binding plea the Government had negotiated with Maes provided for a sentence not in excess of 240 months, the guideline sentence was not available. The Government also moved prior to sentencing for the Court to reduce Maes's sentence 30% from the capped sentence of 240 months, to 168 months, pursuant to U.S.S.G. § 5K1.1. (Doc. No. 1287.) The Court, noting especially the significance of Maes's testimony in the lengthy trial of his co-defendants and the personal risk he had accepted in cooperating, granted the Government's motion and adopted the 30% departure.
In connection with the investigation of the pimps involved in this conspiracy, the Government learned that Kevin Coleman and Shawn Dillard, two Pennsylvania State Troopers, were generally involved with the prostitutes and passing sensitive information about the ongoing criminal investigation to them. The Government brought charges against Coleman and Dillard for this involvement with the prostitution conspiracy. Coleman pleaded guilty to obstruction of justice pursuant to a plea agreement and was sentenced on November 21, 2008, to 97 months imprisonment. After a three day trial, a jury found Dillard guilty of obstruction of justice, aiding and abetting interstate prostitution, and making false statements to the Federal Bureau of Investigation. (Doc. No. 1912 at 3.) The Government is seeking a departure for Maes based on his substantial assistance in the prosecution of these two state troopers.
Rule 35(b)(1) provides that the Court can reduce a previously imposed sentence if the Government moves within one year to reduce the sentence for the defendant's substantial assistance in investigating or prosecuting another person.*fn1 In determining whether and to what extent to grant a departure, the Court is required to conduct "a qualitative, case-by-case analysis" and also "must examine [U.S.S.G.] § 5K1.1's enumerated factors," making specific findings regarding each factor and the evidence used to reach a decision. United States v. Torres, 251 F.3d 138, 147 (3d Cir. 2001); see also United States v. McKnight, 448 F.3d 237, 238 n.1 (3d Cir. 2006) (analyzing a Rule 35(b) determination using the Torres factors). These factors are: (1) the court's evaluation of the significance and usefulness of the defendant's assistance, taking into consideration the government's evaluation of the assistance rendered; (2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant; (3) the nature and extent of the defendant's assistance; (4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; and (5) the timeliness of the defendant's assistance. U.S.S.G. § 5K1.1. The application notes to § 5K1.1 further provide that substantial weight should be given to the government's evaluation of the extent and value of the defendant's assistance, particularly where these factors are difficult for the Court to ascertain.
U.S.S.G. § 5K1.1 Application Note 3.
The Court is not limited to the factors listed in § 5K1.1, however, but can consider all relevant facts and factors. Torres, 251 F.3d at 148. Additionally, "[t]he decision as to the extent of the departure is committed to the almost complete discretion of the district court, which may consider factors beyond the narrower set that could independently support a departure in the first instance." Id. (quoting United States v. Alvarez, 51 F.3d 36, 41 (5th Cir. 1995). In determining the proper extent of departure, the Court can consider inter alia: the seriousness of the crime, the impact on the crime's victims, and comparison of a defendant's conduct to that of co-defendants. Id. Accordingly, "even if the five factors enumerated in § 5K1.1 weigh in a defendant's favor, the district court ...