Thursday, November 17, 2005

The Federal Consequences of a Conditional Discharge Disposition in State Court

Our colleagues Tim Hoover and MaryBeth Covert of the Federal Public Defenders Office in the Western District of New York have written an excellent analysis of the Circuit's decision in United States v. Ramirez, Docket No. 04-3147-cr (2d Cir. Aug. 26, 2005) (Walker, Hall, Gibson (by designation)). And more than that: Tim and MaryBeth also discuss some practice pointers for both state and federal defense attorneys confronted with the conditional discharge issue in light of Ramirez. A must-read!

United States v. Raoul Ramirez, 421 F.3d 159 (2d Cir. 2005): State practitioners regularly seek conditional discharge sentences in New York criminal/city/village/town courts, especially for non-criminal violation offenses, because of the lack of a term of imprisonment and the lack of supervision that a conditional discharge affords. Conditional discharges are regularly offered by prosecutors and imposed by state judges as a way to clear massive New York city, town and village court dockets, and are regularly accepted as a way to quickly resolve a case and to avoid incarceration. A conditional discharge sentence is one of the most lenient sentences permissible under New York law.

Statistical evidence confirms that conditional discharge sentences are given in the overwhelming majority of misdemeanor offenses prosecuted in New York State. (80,000 in the year 2000 and nearly 70,000 in 2001). And, these numbers do not even include the greater number of defendants who received conditional discharge sentences for violation/petty offenses. Compare these numbers to those receiving probation - less than 10,000 in each of the years reported. See Crime and Justice Annual Report 2000 and 2001 at (last accessed Nov. 15, 2005).

Practioners should beware of taking them any more, however. For clients who may one day end up in federal court, Ramirez makes the one year conditional discharge for violation offenses count for federal criminal history purposes under USSG §4A1.2(c)(1)(A).

Petty Offense Sentences Are Presumptively Not Counted under
USSG §4A1.2(c)(1)

USSG §4A1.2(c)(1) excludes the scoring of criminal history points for the fifteen listed prior petty offense convictions, and offenses "similar to them," unless:

"(A) the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to the instant offense."

USSG §4A1.2(c)(1) (emphasis added). The fifteen offenses include, inter alia, careless or reckless driving, disorderly conduct, driving without a license or with a revoked or suspended license, fish and game violations, insufficient funds check, local ordinance violations and trespassing, as well as, in most circumstances, the unlisted offense of second degree harassment involving garden variety harassment conduct.

In 2003, some (but not all) of the Western District judges, at the urging of the federal probation office, began counting New York State conditional discharge sentences, finding them akin to a sentence of probation. That is what the sentencing judge did in Ramirez. This came after nearly 15 years (1987 to 2002) in which one year conditional discharges were never counted for criminal history purposes.

In June 2003, Ramirez pleaded guilty, pursuant to a plea agreement, to one count of conspiracy to possess heroin with the intent to distribute. The applicable Guideline range under the Plea Agreement's calculations was 27 to 33 months' imprisonment. Prior to sentencing, the Probation Office issued a PSR that suggested Ramirez had been involved in past criminal conduct unaccounted for in the plea agreement. The PSR disclosed two violations in New York state court for which Ramirez received "conditional discharge" sentences under N.Y. Penal Law § 65.05: a 1996 plea to one count of non-criminal/violation disorderly conduct, and a 1997 plea to one count of non-criminal/violation driving without a license. The PSR recommended adding one criminal-history point for each of these convictions under U.S.S.G. § 4A1.1(c). The addition of these points pushed Ramirez to a higher criminal history category and resulted in a recommended Guidelines range of 46 to 57 months' imprisonment.

Over objection, the sentencing judge agreed with the Probation Office, finding that a one-year conditional-discharge sentence under New York law "is [the] equivalent of a one-year term of probation for purposes of [U.S.S.G. § 4A1.2(c)(1)(A) ]" because the statute describing conditional discharge, N.Y. Penal Law § 65.05, provides that such a sentence can be modified or revoked if the terms of the discharge are violated.

The Circuit's Decision

On Ramirez's appeal, the Second Circuit agreed with the district court. The panel was unpersuaded by New York States' distinction between probation and conditional discharge sentences and by its prior precedents that bore on the issue:

"The section of the Guidelines dealing with criminal history is designed to account for convictions "in the federal system, fifty state systems, the District of Columbia, territories, and foreign, tribal, and military courts," and to accommodate "jurisdictional variations in offense definitions, sentencing structures, and manner of sentence pronouncement." U.S.S.G. § 4A1.1 cmt. background. Thus, the terminology of punishment employed by a particular state is of limited value in interpreting the meaning of the guideline."

Finding that supervision is not a necessary component of federal probation, the Circuit found that "probation" as that term is used in the Guideline section is a broader concept. Id. at 164 (citing Black's Law Dictionary 1220 (7th ed.1999)) (defining probation as "[a] court-imposed criminal sentence that, subject to stated conditions, releases a convicted person into the community instead of sending the criminal to jail or prison."); Webster's Third New International Dictionary 1806 (1981) (defining probation as "the action of suspending the sentence of a convicted offender in such a way that the offender is given freedom after promising good behavior and agreeing to a varying degree of supervision, to the usually imposed condition of making a report to a particular officer or court at stated intervals, and to any other additionally specified conditions") (emphasis added).

One concern with the Court's decision is that probation can only be imposed following a defendant's conviction for a "crime" under New York law; it cannot be imposed, as can conditional discharge, following conviction for a "violation" or traffic infraction. See N.Y. Penal Law §§ 65.00, 65.05. But that too made no difference to the Circuit court. Id. Nor was the fact that when a court imposes probation, it must require that the defendant report to a probation officer and remain within the jurisdiction of the court, see N.Y. Penal Law § 65.10(3), while a court is not obliged to include these requirements when imposing a sentence of conditional discharge, see id. § 65.10. Nor for that matter, was the Court persuaded by the fact that these violation offenses carry a maximum of only fifteen days in jail (far short of the thirty day or more exception built into the guideline). This can be fairly seen as part of a greater circuit trend – exemplified by the Court's decisions in Guideline treatment of New York youthful offender adjudications, see – of effectively ignoring New York State law and focusing solely on a Sentencing Guideline "common law", if you will, in interpreting New York state sentencing provisions where the substance of the state provision at issue is key.

En banc review was denied. However, there are options to mitigate or avoid the later consequence of a one year conditional discharge, both in state court in the first instance, and at a federal sentencing if a one year conditional discharge has already been imposed.

Options at Original Sentencing in State or Local Court

What does this mean for state practitioners? First and foremost you will need to have a rather frank discussion with your state client before accepting a conditional discharge, if there is any indication that this brush with the law will not be your client's last. The client needs to understand that such a sentence, despite not counting in state court, may subject him/her to a higher criminal history category in federal court should they be charged with a federal offense in the future. Your client does have options, including one unpleasant one, to avoid the potential federal sentencing implications of a conditional discharge.

One of them is jail time. Since USSG §4A1.2(c)(1) excludes sentences of imprisonment up to thirty days from inclusion in the criminal history category, your state client can serve a sentence of up to 29 days (keep in mind the statutory maximum on violations are 15 days) before the sentence gets counted federally. It goes without saying that this may be a hard sell to your client. This is precisely the anomalous result which the Second Circuit was urged to avoid, but seems to embrace by its decision.

Another option may be to seek an unconditional discharge. There are two reasons for this. First, unconditional discharges surely cannot be found to be equivalent to probation under USSG §4A1.2(c)(1). Second, even if they were, you may be able to avoid the two additional points under USSG §4A1.1(d) (points that will be added when the federal offense was committed during the conditional discharge period). While conditional discharges will constitute a "criminal justice sentence" for purposes of two additional points – so long as they are revocable (United States v. Labella-Szuba, 92 F.3d 136, 138 (2d Cir. 1996)) – unconditional discharges do not constitute a "criminal justice sentence" because they are not revocable, and points cannot be added under USSG §4A1.1(d). United States v. Sanders, 205 F.3d 549, 552 n.8 (2d Cir. 2000) (per curiam).

Third, while by operation of New York law, a conditional discharge is one year in length, you can still ask the local judge to make the conditional discharge for some period less than one year – say, one month or six months. If that is what the local criminal judgment entry provides, the conditional discharge cannot be counted by the federal judge under USSG §4A1.2(c)(1).

Options at Federal Sentencing

If you are considering a plea or approaching a federal sentencing and the one year conditional discharge has already been imposed in the local court, and there is no basis under which you could get the client resentenced in the local court (to something other than a one year conditional discharge) or get the local conviction vacated, there are still two major options that can mitigate the effect of the one point.

First, USSG §4A1.3(b)(1) which provides for the possibility "that a defendant's criminal history category substantially over-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes," and authorizes the sentencing court to consider a downward departure to rectify any injustice created by faithful application of the Guidelines. See id.; § 4A1.1, cmt. background ("In recognition of the imperfection of the [method used in the Guidelines to calculate criminal history] ... § 4A1.3 authorizes the court to depart from the otherwise applicable criminal history category in certain circumstances."). The Second Circuit in Ramirez specifically recognized that this provision can be properly used in the appropriate case where including the conditional discharge would produce anomalous results. (The Second Circuit's discussion of such a departure as a basis supporting its decision was curious, given that at Ramirez's sentencing he asked for just such an overrepresentation departure, and that departure was denied.)

Second, you should continue to seek a non-guideline sentence per United States v. Booker, 543 U.S. --, 125 S.Ct. 738 (2005). The skewed result of including a conditional discharge can be added in the 3553(a)(2) mix in making your sentence request for a sentence below the advisory Guidelines range. Indeed, Ramirez's case has been returned by the Second Circuit to the District Court for reconsideration of whether to resentence under Booker and the Second Circuit's seminal Crosby decision. Continue to ensure that you preserve your ability to ask for a non-Guideline sentence in any plea agreement that your client enters.

(By Tim Hoover and MaryBeth Covert, Federal Public Defenders Office, Buffalo, New York)


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