The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
This matter relates to the sentencing of Petitioner, Craig C. Hughes ("Petitioner") after his guilty plea for aiding and abetting a District of Columbia official in the receipt of bribes in violation of 18 U.S.C. §§ 201(b)(2)(A), (C) and 18 U.S.C. § 2. Currently before the Court is Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("Petitioner's Motion") accompanied by Petitioner's Memorandum in Support ("Petitioner's Memorandum"). Petitioner claims that he is entitled to have the Court modify his sentence because his family's hardship due to his incarceration was not sufficiently articulated at sentencing. Pet'r Mem. at 1. Specifically, he seeks to have this Court modify his sentence to ten months served in home confinement or a halfway house, rather than his current sentence, composed of five months of incarceration and five months of home confinement.For the reasons set forth below, the Court shall deny Petitioner's motion for a modification of his sentence.
Petitioner was arrested on August 26, 2004 for aiding and abetting a District of Columbia official in the receipt of bribes in violation of 18 U.S.C. §§ 201(b)(2)(A), (C) and 18 U.S.C. § 2. 7/8/05 Defendant Craig C. Hughes' Memorandum in Aid of Sentencing ("Def.'s Sentencing Mem.") at 1, 5. Specifically, prior to his arrest, Petitioner put Federal undercover agents in touch with a middleman who, in turn, steered the agents to a teller at the D.C. Department of Motor Vehicles Branch Office in Georgetown. [Petitioner] was aware that the agents would be issued drivers' licenses in names other than their real names, based on documentation prepared with [Petitioner's] assistance. In the course of the transactions, [Petitioner] accepted cash of $6,800, most of which he passed on to the middleman who apparently shared the money with the teller.
Def.'s Sentencing Mem. at 1--2. On September 3, 2004, Petitioner agreed to enter into a plea agreement in which he committed to "plead guilty to a one-count information charging a violation of 18 U.S.C. §§ 201(b)(2)(A), (C) (Bribery) and 18 U.S.C. § 2 (Aiding and Abetting)." Id. at 5; 9/3/04 letter from K. Wainstein to A. Kleiboemer re: plea offer ("Plea Offer") at 1. Petitioner also agreed to cooperate with the Government "in any manner as to which the government deems the cooperation relevant." Plea Offer at 3. On September 7, 2004 Petitioner "met for several hours with law enforcement personnel and provided additional information during a lengthy interview." Def.'s Sentencing Mem. at 5. The plea agreement was formally executed on October 25, 2004. 10/25/04 Waiver of Indictment; Plea Offer at 7. On May 3, 2005, before Petitioner was sentenced, he met with law enforcement officers an additional time, providing more information. Def.'s Sentencing Mem. at 5.
On July 8, 2005, Petitioner filed his memorandum regarding his sentencing, in which he argued that, despite the fact that the Government had not moved for a downward departure of his sentence for the substantial assistance Petitioner provided, the sentencing court could downwardly depart from Petitioner's sentence sua sponte pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Def.'s Sentencing Mem. at 2. Petitioner argued that the requirement that departures be granted only upon motion of the Government was based on the pre-Booker view that the Sentencing Guidelines had the force of law. Def.'s Sentencing Mem. at 3. However, Petitioner reasoned, because Booker stated that the United States Sentencing Guidelines were advisory and not mandatory, the pre-Booker regime, in which "virtually every federal court addressing the issue held that Section 5K1.1 [the substantial assistance sentencing guideline] was operative only upon motion of the Government," was no longer applicable. Id. Accordingly, in the post-Booker context, the sentencing court could depart downward from Petitioner's sentence in recognition of his substantial assistance without a Government motion for that departure. Id. Additionally, Petitioner attached fifteen letters from various members of his community expressing Petitioner's integrity and significant contribution to his community through his involvement in church and a local recreation center. See Def.'s Sentencing Mem., Attach. 1--15. As such, Petitioner asked for a fine and probation only, rather than a period of incarceration. Id. at 1. In the Sentencing Memorandum, Petitioner did not explicitly mention any specific hardship that would be imposed upon his family should he be incarcerated.
The Government's Memorandum in Aid of Sentencing ("Government's Sentencing Memorandum") recommended a one-level downward departure from Petitioner's sentence because, although he cooperated fully, his assistance proved "insufficient to proceed with a prosecution of other individuals," leading the Government to conclude a one-level departure was an adequate reflection of his assistance. 7/8/05 Government's Sentencing Mem. at 7. The Government also discussed the impact of Booker, noting that sentencing courts "while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing," and that, on appeal, sentences would be subject to review of "reasonableness." Id. at 8--9 (quoting Booker, 543 U.S. at 261, 125 S.Ct. 738). Therefore, the Government concluded, given "the continued requirement of written explanations for sentences that fall outside of the range called for by the Guidelines and the new standard of 'reasonableness' review -- it is plain that a sentence within the Guidelines, while not required, is reasonable per se." Government's Sentencing Mem. at 9.
At the sentencing hearing, the Court granted the Government's motion for a one-level departure based on Petitioner's assistance. 7/22/05 Hr'g Tr. at 3:17--19. Petitioner's counsel presented the Court with a letter from Petitioner's pastor, which the Court read, in lieu of him appearing in person to speak on Petitioner's behalf. Id. at 5:6--13, 5:21--11. The substance of Petitioner's counsel's statement at the hearing is as follows:
Your Honor, I'll be very brief. You know what the law is, you know what the sentencing guidelines are. The government has fairly and fully informed you of what they have to say.
We have stated our view of the law in the presentence memorandum. So it seems to me I've reached the end of my duties and the matter now falls into your hands.
I can tell you this, as you probably know from the materials that you have seen, my client has done a lot of good in the past and he certainly has a potential to do a lot of good. He was involved in something that is serious and for which he has accepted responsibility.
What's going to happen to him in the rest of his life is now in your hands. With that, Your Honor, unless you have some questions, I have nothing else to say.
Id. at 6:13--7:1. Petitioner's wife then addressed the Court, asking for leniency and acknowledging the seriousness of her husband's conduct. Id. at 7:6--12. Finally, Petitioner stated his remorse for his crime and reiterated his contributions to his community. Id. at 8:22--9:22. Nowhere in the briefing or argument at the hearing did Petitioner or his counsel articulate how Petitioner's incarceration would have a detrimental effect on his family. See id.; Def.'s Sentencing Mem. The Court noted that his mother was still living, but the only available information stated that she was "retired, [and] had been a librarian in the DC school system" with no reference to any special needs she had. Hr'g Tr. at 9:17--18.
While considering Petitioner's sentence, the Court acknowledged the "number of references" that accompanied Petitioner's sentencing memorandum. Id. at 10:1--5. The Court considered the seriousness of Petitioner's crime and his specific involvement in the scheme, Petitioner's contribution to the community and "spotless record," and his testing positive for marijuana. Id. at 13:5--14:9, 12:10--13, 14:10:16. Ultimately, the Court concluded that a split sentence, as opposed to probation only, was the appropriate sentence. Id. at 15:5--7. The Court imposed a five-month imprisonment, a $3000 fine, a five-month period of home confinement, and a three-year term of ...