Opinion
01 Cr. 1006 (RWS)
June 19, 2002
SENTENCING OPINION
Defendant Roy Bodden ("Bodden") pleaded guilty on November 12, 2001 to bank fraud in violation of 18 U.S.C. § 1344. For the reasons set forth below, Bodden's sentence will consist of six months in a community corrections center, to be followed by a three-year term of supervised release, subject to the sentencing hearing now set for June 19, 2002. A special assessment fee of $100 is mandatory and will be due immediately.
The Defendant
Bodden was born on December 18, 1959 in La Ceiba, Honduras. He entered the United States with his mother in September 1963, when he was 4 years old, and became a naturalized U.S. citizen in 1969. His mother, now divorced from his father, currently resides in the United States, as do his three siblings.
Bodden attended high school in Staten Island, New York, and later received his G.E.D. while he was incarcerated. In 1985, he married Gail Harris, with whom he had one son. Harris and Bodden are divorced and their son, now a 17 year-old high school student, resides with his mother in Durham, North Carolina. Bodden is now in a committed relationship with, and lives with, an assistant production manager in the fashion industry, who has two daughters. However, according to Harris, Bodden retains a healthy relationship with his ex-wife and son.
Bodden has a history of drug addiction, which led him to enter treatment for drug abuse on three occasions. However, he has received several letters on his behalf confirming that he has made considerable progress in battling his addiction. A former substance abuse counselor has assessed that Bodden will continue to be successful at maintaining life in recovery and that he is committed to giving back to his community. Bodden's counselor currently supervising his outpatient substance abuse treatment has verified that Bodden maintains good attendance and has made considerable progress.
Bodden is currently employed full-time at a structural engineering firm in New York, New York as a receptionist earning approximately $1,725.40 per month. His supervisor has verified that Bodden is a reliable employee. Bodden also volunteers his time at Career Gear, a non-profit organization that assists low-income men in obtaining employment. Bodden, a former client, now serves on a committee that evaluates the effectiveness of the program.
The Offense
Bodden was arrested on July 11, 2001 following an investigation by the United States Secret Service and the United States Postal Service into a stolen United States Treasury check, worth approximately $14,521, that had been deposited at a branch of Apple Bank ("Apple") in Manhattan. Based on a review of Apple's records, it was determined that the check had been mailed to the intended payee at his residence at the Help Supportive Center, a social service agency for substance abusers. The payee did not received his check, and it was later found that Bodden, using false identification, had opened an account at Apple in the payee's name and had deposited the check into the account.
Bodden pleaded guilty to the offense on November 12, 2001.
The Guidelines
Section 2F1.1 of the United States Sentencing Guidelines (the "Guidelines") provides the base offense level for the offense for which Bodden has been convicted. Pursuant to this section, the base offense level is 6. Because the intended loss amount exceeded $10,000 but was less than $20,000, the offense level is increased by three levels pursuant to § 2F1.1(b)(1)(D). Another two levels are added because the offense involved more than minimal planning. See U.S.S.G. § 2F1.1(b)(2)(A). However, two levels are subtracted due to Bodden's recognition of responsibility for the offense, see U.S.S.G. § 3E1.1(a), yielding a total adjusted offense level of 9.
The 1998 Guidelines Manual in effect at the time the offense was committed was used for calculating Bodden's sentence in accordance with Guidelines § 1B1.11(b)(1).
Bodden has several prior arrests, which combine for a criminal history score of 8. However, two levels are added to the criminal history score since the instant offense was committed less than two years after Bodden's release from custody on June 8, 1998 for a sentence connected to criminal possession of a weapon, see U.S.S.G. § 4A1.1(e), resulting in 10 criminal history points and a Criminal History Category of V.
Based on a total offense level of 9 and a Criminal History Category of V, the Guidelines range for imprisonment is 18 to 24 months. However, the U.S. Probation Office has suggested in its Presentence Investigation Report that, pursuant to Guidelines § 5K2.0, there are grounds for departure given that the defendant has made extraordinary progress in his effort to cure himself from drug addiction. The Probation Office has recommended six months in a community corrections center as the period of incarceration.
The Government opposes the Probation Office's recommendation on the ground the Bodden's post-offense efforts at rehabilitation do not justify a departure. Specifically, the Government points to the fact that Bodden tested positive for cocaine on several occasions between November 2001 and January 2002. As a result, the Government claims that Bodden's rehabilitation does not qualify as "extraordinary." United States v. Bryson, 163 F.3d 742, 747 (2d Cir. 1998).
The Sentence
Bodden will be sentenced to six months in a community corrections center based on his history, his efforts at rehabilitation, and the recommendations of the Probation Office. Although the Government argues that Bodden's rehabilitation does not warrant a departure due to his failed drug tests, this factor was considered by the Probation Office in making its recommendation. The standards for departure, particularly in the context of long-term drug addiction, do not require unblemished success in a defendant's path to recovery, but rather extraordinary progress as measured by all relevant factors. See United States v. Workman, 80 F.3d 688, 701 (2d Cir. 1996) ("[R]ehabilitation efforts by drug-addicted defendants may justify downward departures under appropriate circumstances."); United States v. Maier, 975 F.2d 944, 945 (2d Cir. 1992) (affirming departure where defendant's "efforts toward rehabilitation followed an uneven course, not a surprising result for someone with a fourteen-year history of addiction").
As confirmed by the Presentence Investigation Report and numerous letters by professionals and colleagues familiar with Bodden, the defendant has taken extraordinary steps in turning around a 25-year drug addiction. He has fully acknowledged his addiction and has taken proper steps to treat his disease. During the past year, he has admitted himself into inpatient substance abuse treatment followed by outpatient treatment. He continues to attend counseling at SCAN-New York and also attends Narcotics Anonymous meetings regularly. He has secured a residence, is gainfully employed, and maintains healthy personal relationships. Time served in a community corrections center will aid Bodden's progress by enabling him to continue working and attending substance abuse counseling while incarcerated.
Bodden's term of incarceration will be followed by a three-year term of supervised release. Bodden is to report to the nearest Probation Office within 72 hours of release from custody, and supervision shall be in the district of residence. As mandatory conditions of supervised release, Bodden shall (1) not commit another federal, state, or local crime; (2) not illegally possess a controlled substance; and (3) not possess a firearm or destructive devise. Bodden shall also abide by the standard conditions of supervision (1-13).
In addition, as special conditions, Bodden shall: (1) provide the probation officer with access to any requested financial information; (2) not incur new credit charges or open additional lines of credit without the approval of the probation officer unless Bodden is in compliance with the installment payment schedule; (3) participate in a program approved by the United States Probation Office for substance abuse, which program may include testing to determine whether Bodden has reverted to the use of drugs or alcohol. Bodden will be required to contribute to the costs of services rendered (co-payment) in an amount to be determined by the probation officer, based on ability to pay or availability of third-party payment.
No fine will be imposed due to Bodden's lack of financial resources at this time. However, a special assessment fee of $100 will be due immediately.
Finally, as Apple has suffered injury compensable under the Victim and Witness Protection Act in the amount of $7,000, Bodden shall make restitution to: Apple Bank, 122 East 42nd Street, 9th Floor, New York, N.Y. 10168, Attn: Mike Lixandroiu, Investigator. However, no further payment shall be required after the sum of the amounts actually paid by all defendants charged in related cases has fully covered the compensable injury. The restitution shall be paid in monthly installments of 10% of gross monthly income over a period of supervision to commence 30 days after the release from custody. Bodden shall notify the United States Attorney for this district within 30 days of any change of mailing or residence address that occurs while any portion of the restitution remains unpaid.
This sentence is subject to modification at the sentencing hearing now set for June 19, 2002.