included in calculating Miranda's criminal history category. Similarly, Miranda's driving without a license conviction, a non-serious offense, which occurred approximately four years prior to the instant offense, is remote enough in time and sufficiently distinct in seriousness and kind from that the instant offense, such that it should also be excluded in calculating Miranda's criminal history category. See, e.g., United States v. Valencia-Andrade, 72 F.3d 770 (9th Cir. 1995) (finding that driving with suspended license resulted in over-statement of criminal history); United States v. Shoupe, 988 F.2d 440, 446-47 (3d Cir. 1993) (adopting approach of United States v. Pinckney, 938 F.2d 519 (4th Cir. 1991)); United States v. Summers, 893 F.2d 63 (4th Cir. 1990).
Moreover, the Court believes that the inclusion of Miranda's 1994 DUI conviction, although the instant offense was committed at the end of the probationary sentence for that offense, should not be included in calculating the criminal history category. Additionally, at oral argument, the Government conceded, and the Court agrees, that a criminal history category of I was not inappropriate.
Accordingly, in calculating the sentence applicable to Miranda, the Court will subtract 5 points from his previous point total of 5, for a total of zero criminal history points, see Hickman, 991 F.2d at 1114 (noting that court should move "horizontally," use guideline range for a defendant with a higher or lower criminal history category, as applicable); United States v. Taylor, 843 F. Supp. 38, 48 (E.D.Pa. 1993), and therefore, the Court will use a criminal history category of I in imposing sentence.
F. Pretrial Conditions
Relying on a growing trend of decisions within this district, which have yet to be reviewed by the Third Circuit, see, e.g., United States v. Sutton, 973 F. Supp. 488, 1997 U.S. Dist. LEXIS 11098, 1997 WL 432393, *7 (D.N.J. 1997) (finding authority to downwardly depart based on atypical conditions of pretrial confinement, but adding that "use of . . . departures to foment prison administrative reform is awkward and far removed from aim of the . . . Guidelines") (Bassler, J.); United States v. Booher, 962 F. Supp. 629, 636 (D.N.J. 1997) (declining to downwardly depart due to deplorable prison conditions because, among other reasons, relief from such conditions is available through other means) (Politan, J.), Miranda also moves for a downward departure based on the 100 days during which he was incarcerated at the Camden County Correctional Facility ("CCC"). In a letter to the Court, Miranda noted in brief, but graphic detail the conditions of his confinement. Neither the Probation Officer, nor the Government has taken a written position in response.
Assuming, arguendo, that the Court may even consider the conditions of pretrial confinement as a basis for a downward departure, regardless of whether such a factor is a "discouraged" factor or a factor "unmentioned" by the Sentencing Commission,
see United States v. Koon, 518 U.S. 81, 135 L. Ed. 2d 392, 116 S. Ct. 2035, 2045 (1996) (dividing factors into four classes, forbidden, encouraged, discouraged, and unmentioned), the confinement at issue in this case and on this minimal record regarding CCC's conditions would not warrant a departure. Miranda was in CCC only 100 days, as compared to the defendant in Sutton, who spent slightly less than a year in the Union County Jail, Sutton, 973 F. Supp. 488, 1997 U.S. Dist. LEXIS 11098, 1997 WL 432293 at *3, the defendant in Booher, who spent three years in the Union County Jail, Booher, 962 F. Supp. at 629, 636 (noting that length of stay was "of [defendant's] own making), and the defendant in United States v. Navarro, Crim. No. 93-588, slip op. at 3 (D.N.J. Nov. 18 1996) (Lifland, J.) (noting importance of length of time incarcerated in Union County jail as factor in decision to grant downward departure), who spent 32 months in the Union County Jail, id. at 3. See also United States v. Arenas-Anzola, 1997 U.S. Dist. LEXIS 16213, Crim. No. 97-76 (D.N.J. June 1997) (six-month stay not enough to warrant departure) (Debevoise, J.); United States v. Gi Hun Jen, Crim. No. 93-289 (D.N.J. Sept. 23, 1996) (declining, in oral ruling, to depart to account for 40-month stay) (Parell, J.); see also United States v. Porter, 924 F.2d 395, 399 (1st Cir. 1990) (declining to review district court decision not to depart based on unconstitutional conditions during pretrial confinement) (Breyer, C.J.); see generally Cheryl Winokur, Squalid Jails Grounds for Less Jail Time, 149 N.J.L.J. 438, 452 (Aug. 4, 1997). Therefore, Miranda's motion for a downward departure based on the conditions of his pretrial confinement at the CCC will be denied.
While the record before me is far too sparse upon which to determine whether the conditions at the CCC are sufficiently deplorable to warrant a departure under the Guidelines, Miranda's description of conditions at the CCC, which is uncontradicted on the record before me, raises troublesome questions as to whether federal prisoners should be housed there. Accordingly, I am forwarding a copy of this opinion to the United States Marshal for this District to investigate conditions at the CCC and determine whether federal prisoners should continue to be incarcerated at that facility.
Given a base offense level of 36 with adjustments of 3 points for acceptance of responsibility, 2 points for minimal role, and a further 2-point reduction pursuant to U.S.S.G. § 2D1.1(b)(4), see infra, for a total offense level of 29, and a criminal history category of I, the applicable guideline sentence range is 87 to 108 months. In light of the stipulations contained in the plea agreement relating to U.S.S.G. § 5C1.2(f)(2-4), 18 U.S.C. § 3553(f)(2-4), this Court's finding that the defendant does not have more than 1 criminal history point, and the stipulation by the Government on the record regarding the criteria required by U.S.S.G. § 5C1.2(f)(5), 18 U.S.C. § 3553(f)(5), I conclude that Miranda is eligible to be sentenced under the provisions of U.S.S.G. § 5C1.2, i.e., below the mandatory minimum sentence for 21 U.S.C. § 846, but within the applicable guideline range.
Dated: September 26, 1997
STEPHEN M. ORLOFSKY
United States District Judge