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Amended Memorandum, Order, and Judgment I

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Amended Memorandum, Order, and Judgment I 989 F.Supp. 436 (1998) UNITED STATES of America v. Vincent GIGANTE, Defendant. No. CR 93­368 (JBW). United States District Court, E.D. New York. January 5, 1998. 437 *437 Zachary W. Carter, U.S. Attorney, Brooklyn, NY by Andrew Weissmann, George A. Stamboulidis, Daniel S. Dorsky, for U.S. Culleton, Marinaccio & Foglia, White Plains, NY by James J. Culleton, Michael A. Marinaccio, Philip Foglia, Steven R. Kartagener, New York, NY, for Defendant. AMENDED MEMORANDUM, ORDER, AND JUDGMENT WEINSTEIN, Senior District Judge. I. Introduction ............................................. 438 II. Provisional Sentence vs. Guidelines Sentence ............. 438 III. Presentence Recommendations .............................. 439 A. Department of Probation ............................... 439 1. Applicable Guidelines Range for Incarceration ...... 439 2. Fines and Cost of Imprisonment ..................... 439 3. Restitution ........................................ 439 438 *438 4. Special Assessment ................................. 439 5. Post-Incarceration Supervised Release .............. 439 B. Prosecution ........................................... 439 C. Defendant ............................................. 440 IV. General Sentencing Considerations ........................ 440 V. Departures Under Guidelines .............................. 441 VI. Conclusion ............................................... 443 I. Introduction Vincent Gigante has been convicted after a jury trial of five criminal counts: racketeering (RICO), 18 U.S.C. § 1962(c), racketeering conspiracy, 18 U.S.C. § 1962(d), extortion conspiracy, 18 U.S.C. § 1951(a), labor payoff conspiracy, 18 U.S.C. § 371, and conspiring to murder in aid of racketeering, 18 U.S.C. § 1959(a)(5). A motion for a new trial has been denied. United States v. Gigante, 982 F.Supp. 140 (E.D.N.Y.1997). Defendant is competent to be sentenced. United States v. Gigante, ___ F.Supp. ___, 1998 WL 94911 (E.D.N.Y. Jan. 5, 1998). For reasons indicated below, defendant is sentenced to twelve years imprisonment, a fine of $1,250,000, a special assessment of $250, and five years of supervised release following imprisonment. II. Provisional Sentence vs. Guidelines Sentence Section 4244 of the United States Code provides for provisional sentencing of a competent defendant who is "presently suffering from a mental disease or defect" and who "should, in lieu of being sentenced to imprisonment, be committed to a suitable facility for care and treatment." 18 U.S.C. § 4244(d). Provisional sentences are for "the maximum term authorized by law." 18 U.S.C. § 4244(d). "Maximum term" in this context has been interpreted to mean the statutory maximum and not the maximum sentence under the Guidelines. See, e.g, United States v. Moses, 106 F.3d 1273, 1275 n. 1 (6th Cir.1997) ("`the maximum term authorized by the law' refers to the statutory maximum for the offense, not the maximum sentence allowed by the Sentencing Guidelines"). The maximum concurrent term is life imprisonment. The maximum consecutive term is two life sentences plus thirty­five years incarceration. Provisional sentences are not appropriate in every case involving defendants who appear to be suffering from a mental defect. "Congress obviously envisioned the possibility that a defendant might be found to be suffering from mental defect or disease but that it would be unnecessary to commit that person for treatment in lieu of imprisonment." United States v. Buker, 902 F.2d 769, 770 (9th Cir.1990). For defendants who may suffer from some degree of mental illness but for whom traditional incarceration is appropriate, a court may recommend that the defendant be housed at a particular correctional facility, one that offers appropriate health services, without imposing a provisional sentence. Id. Appropriate Bureau of Prisons' medical facilities can provide adequate medical treatment for defendant. According to David Good, Chief Health Programs Branch National Health Systems Administrator of the Federal Bureau of Prisons, the Bureau has "six in­patient Medical Referral Centers that have approximately 750 in­patient/chronic care beds which address the spectrum of inmate health care needs consistent with the community standard of medical care" and is able to "care for patients with dementia, Alzheimer's disease, and cardio­vascular disease." (Letter of David Good of Dec. 15, 1997, at 1­2.) Defendant has been found to be a malingerer whose claimed mental problems were exaggerated. See United States v. Gigante, ___ F.Supp. ___, 1998 WL 94911 (E.D.N.Y. Jan. 5, 1998). He does have heart problems, but they have been 439 treated appropriately and he is in a stable condition. Despite contentions of the defense that he probably could *439 not live through the tensions of a trial, defendant has survived without discernable physical deterioration. Under these circumstances, a sentence pursuant to the Guidelines is appropriate. The interests meant to be served by rendering a provisional sentence — protection of mentally ill prisoners, protection of other inmates, and humanitarian treatment for the mentally ill — are not involved in this case where mental illness, if any, is slight. See United States v. Abou­ Kassem, 78 F.3d 161, 165 (5th Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 70, 136 L.Ed.2d 30 (1996). Defendant poses no immediate danger to himself or others, as demonstrated by his exemplary behavior while housed at the Butner Federal Correctional Institution. III. Presentence Recommendations A. Department of Probation After a full hearing, the Department of Probation analysis and computations under the Guidelines were found to be essentially correct, except as noted below. 1. Applicable Guidelines Range for Incarceration The Presentence Report prepared by the United States Department of Probation indicates a combined total offense level of thirty­eight. Criminal history category is characterized as "II," based upon defendant's conviction for conspiring to violate federal narcotics laws in 1958. For that offense defendant was sentenced to seven years incarceration. Based upon these computations, the Guidelines range of imprisonment is between 262 to 327 months. Probation has recommended the maximum, 327 months. 2. Fines and Cost of Imprisonment Pursuant to Section 5E1.2(a) of the Guidelines, a monetary fine must be imposed unless defendant is able to establish (1) that he is unable to pay a fine and (2) that he is not likely to become able to pay any fine. Probation recommended a fine of $40,250,000 predicated upon assumptions not supported by the record. Based upon required modification of the Presentence Report, the maximum fine is $250,000 for each crime. 18 U.S.C. § 3571(b)(3); see also United States v. Sessa, 821 F.Supp. 870, 874 (E.D.N.Y. 1993), aff'd, 32 F.3d 704 (2d Cir.1994). Permissible statutory modifications are not of appreciable significance. 18 U.S.C. § 3571(d). Amendments to the Guidelines, effective November 1, 1997, deny the court the power to impose costs of incarceration upon a defendant. U.S.S.G § 5E1.2(d)(7). 3. Restitution The Sentencing Guidelines state that "[t]he court shall enter a restitution order ...." U.S.S.G. § 5E1.1 (a). Probation is not recommending restitution since no third party has sought compensation. 4. Special Assessment Special assessments "must be imposed on a convicted defendant in the amount prescribed by statute." U.S.S.G. § 5E1.3. Their purpose is the funding of the Crime Victims' Fund. U.S.S.G. § 5E1.3 comment. For each felony count for which defendant has been convicted, $50 must be assessed, leading to probation's recommendation of $250 in special assessments. 5. Post­Incarceration Supervised Release A term of supervised release is required to follow imprisonment whenever incarceration is for more than one year. U.S.S.G. § 5D1.1(a). The term of supervised release must be for at least three years, but not more than five years. U.S.S.G. § 5D1.2(a)(1), (2). Cumulation of supervised release terms may be permitted only in rare cases. See United States v. Williams, 65 F.3d 301, 309 (2d Cir.1995)(imposition of a ten­year period of supervised released based upon two five­year consecutive terms of supervised release). Probation has properly recommended a five­year term of supervised release. B. Prosecution The prosecutor's view of the Guidelines' criteria is generally in accord with those of Probation. Nevertheless, the government argues that defendant should be sentenced with the full weight of the maximum sentence of incarceration permitted by the 440 Guidelines and further moves for an upward *440 departure pursuant to Section 3553(b) of Title 18 of the United States Code and Sections 2B3.2, 4A1.3, 5K2.0, 5K2.7 and 5K2.9 of the Guidelines. Specifically, the government argues that defendant should receive an upward departure for: (1) obstructing justice by feigning mental illness in order to avoid prosecution and sentence; (2) taking part in organized criminal activity; (3) "massive interference with government functions"; and (4) having a criminal history far more heinous than that recognized by the Guidelines. An upward departure is not appropriate in view of defendant's physical disabilities and age. C. Defendant The defendant contends that his criminal history category is I, not II. If accepted, his Guideline imprisonment range would be 210 to 262 months rather than 262 to 327 months. In view of defendant's long serious criminal history — established by a preponderance of the evidence — beginning no later than the 1960's,
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