applicable to defendant because of his deceit on the Government, based on four alternative theories. Additionally, the Government requests an upward departure based on defendant's role as a leader or manager of the fraudulent scheme.
1. § 1B1.3
The first theory upon which the Government moves for an upward departure is based on the monetary loss allegedly incurred in the theft at Newark Airport.
According to the Government, defendant stole $ 656,000 worth of American Express Travelers Checks from the mail at Newark Airport. As detailed above, to avoid prosecution for said crime, defendant feigned a debilitating injury. The Government argues that by committing the second crime, for which he was convicted, defendant successfully avoided the prosecution of theft. Because defendant prevented the Government from prosecuting him for theft, the Government asserts that said crime should be taken into account in this sentencing.
Section 1B1.3(a)(2) of the USSG states that a guideline range should be based on "all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction." USSG § 1B1.3(a)(2). The "same course of conduct" requirement has been construed to mean whether the defendant repeats the same activity over time. United States v. Hill, 79 F.3d 1477, 1481-82 (6th Cir. 1996), petition for cert. filed, (U.S. June 24, 1996) (No. 95-9455). Application Note 9(B) instructs the Court to analyze "the degree of similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval between the offenses." USSG § 1B1.3, comment. (n.9(B)). In addition, "'common plan or scheme' requires that acts 'be connected together by common participants or by an overall scheme . . . .'" Hill, 79 F.3d at 1482. "The guidelines prescribe a sliding scale approach, i.e., where one of the factors is weak or absent, there must be a substantially stronger showing of at least one other factor." Id. at 1484 (citation omitted).
In the case sub judice, the Court is not satisfied that the alleged theft at Newark Airport is relevant conduct for the purpose of defendant's sentence for mail fraud. Defendant did not engage in a common scheme or repeat similar conduct. Avoidance of prosecution for theft was merely the motive for which defendant committed the mail fraud. Hence, the Court finds that an upward departure based on the alleged theft of over $ 600,000 in a case for which defendant was not convicted is inappropriate.
2. § 5K2.0
Alternatively, the Government moves for an upward departure from the guideline range pursuant to USSG § 5K2.0. This section provides, in pertinent part: "Under 18 U.S.C. § 3553(b) the sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds 'that there exists 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.'" USSG § 5K2.0. The guideline recognizes that "circumstances that may warrant departure from the guidelines pursuant to this provision cannot, by their very nature, be comprehensively listed and analyzed in advance." Id. Rather, it is within the Court's discretion to determine whether departure is necessary, "even though the reason for departure is taken into consideration in the guidelines . . . ." Id. That is, the Court may determine that "in light of unusual circumstances, the guideline level attached to that factor is inadequate." Id.
Moreover, the Court may depart on the basis of previous, related misconduct, even though the acts in question do not fall within the technical definition of relevant conduct. United States v. Kim, 896 F.2d 678, 684 (2d Cir. 1990). See also United States v. Uccio, 917 F.2d 80, 86 (2d Cir. 1990); United States v. Zamarripa, 905 F.2d 337, 341-42 (10th Cir. 1990).
Additionally, the fraud guideline provides that an upward departure may be appropriate when "a primary objective of the fraud was non-monetary; or the fraud caused or risked reasonably foreseeable, substantial non-monetary harm." § 2F1.1, comment. (n.10(a)).
In the instant case, the facts are such that they could not have been contemplated by the Sentencing Commission when formulating the guidelines. The prospect of a person feigning a debilitating injury, spending months in hospitals, and subjecting himself to continued invasive medical treatment for the purpose of avoiding prosecution of theft is almost beyond the imagination of this Court. However, this is the scheme for which defendant was convicted, and upon which he fraudulently received monies from numerous victims. Therefore, it is the conclusion of this Court that an upward departure is warranted.
Having determined that an upward departure is appropriate, the Court must tackle the more difficult task of figuring the amount of the departure. This is an issue which has been sadly neglected by the Commission and is nowhere mentioned in the guidelines. See United States v. Kikumura, 918 F.2d 1084, 1111 (3d Cir. 1990) (citation omitted). What is clear, however, is that the Court, upon deciding to upwardly depart, may not simply ignore the guidelines. Id. at 1112 (citation omitted). Rather, in determining the amount of an upward departure pursuant to USSG § 5K2.0, the Court is guided by a reasonableness standard. Id. at 1110. Because the "district courts are in the front lines, sentencing flesh-and-blood defendants . . . they are entitled to 'a substantial amount of discretion' in determining the extent of any departure." Id. (citations omitted). The Third Circuit, in Kikumura, suggested that analogic reasoning is one way to assess the reasonableness of a departure.
Id. at 1112-13. The Court also recognized, however, that this reasoning may not always apply, and that other methodologies may be developed by the district courts. Id. at 1113.
In the case at bar, the Court finds that an upward departure of three levels is appropriate. Defendant's scheme to fake a debilitating injury in order to avoid criminal prosecution for theft is an aggravating factor which is not taken into account in the guidelines. Application Note 10(a) to the fraud guideline acknowledges that a departure is warranted when the fraud caused nonmonetary harm. USSG § 2F1.1, comment. (n.10(a)). Here, defendant's fraud caused not only monetary harm to the Social Security Administration and Prudential Insurance Company, but also caused nonmonetary harm to the Department of Justice by preventing it from prosecuting a crime. This type of harm is not accounted for in the fraud guideline, see USSG § 2F1.1, and is analogous to obstruction of justice.
Obstruction of justice is considered by the guidelines in two sections. First, § 3C1.1 provides for an increase of two levels "if the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense . . . ." USSG § 3C1.1. While the Court notes that defendant did not attempt to impede the Government in the prosecution of the mail fraud charge, defendant's mail fraud was designed to frustrate the Government's ability to prosecute him for the theft at Newark Airport.
In addition, section 2J1.2(b)(2) mandates an increase of three levels when a defendant's obstruction of justice "resulted in substantial interference with the administration of justice." USSG § 2J1.2(b)(2). As discussed above, the motive for defendant's commission of the mail fraud was his desire to avoid prosecution for theft. Therefore, defendant's charade not only interfered with the Government's ability to prosecute him, but actually permanently prevented it.
Such actions were clearly not envisioned by the Commission when preparing the guidelines; thus, they must be taken into account through an upward departure. The Court, therefore, finds that an upward departure of three levels is reasonable.
3. § 5K2.9
Alternatively, the Government asserts that an upward departure is appropriate under USSG § 5K2.9. This section provides: "If the defendant committed the offense in order to facilitate or conceal the commission of another offense, the court may increase the sentence above the guideline range to reflect the actual seriousness of the defendant's conduct." USSG § 5K2.9.
Because the Court has taken into account defendant's deceit on the Government and avoidance of criminal prosecution in the context of USSG § 5K2.0, the Court will not do so under this section. Accordingly, the Court will not upwardly depart pursuant to USSG § 5K2.9.
4. § 4A1.3(d)
As a final alternative justification for an upward departure, the Government asserts that defendant's criminal history category is not accurately reflected by the guidelines. Section 4A1.3(d) provides:
If 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. Such information may include, but is not limited to, information concerning:
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