No. 89 CR 765.
April 23, 1991.
Andrew J. Maloney, U.S. Atty., E.D. N.Y., Brooklyn, N.Y. by Keith Krakaur, for the Government.
Martin L. Schmukler, P.C., New York City by Martin L. Schmukler, for defendant.
MEMORANDUM AND ORDER
Defendant was arrested in October of 1989. During pre-trial detention, he was diagnosed as having testicular cancer. The affected organs were surgically removed. Thereafter, he received chemotherapy and radiation. In a subsequent examination, multiple pulmonary nodes were discovered, and the attending physician diagnosed a metastatic germ cell tumor.
He pled guilty to conspiring to possess with intent to distribute in excess of 500 grams of cocaine. The object of the conspiracy was to distribute 300 kilograms of cocaine. The guideline range is one hundred and fifty-one to one hundred and eighty-eight months in prison with at least a four year term of supervised release and a fifty dollar special assessment. The statute provides a five year minimum term of imprisonment. See 21 U.S.C. § 841(b)(1)(B).
Defendant now moves for a downward departure under Sections 5H1.4 and 5K2.0 of the United States Sentencing Guidelines on the ground that his metastasized cancer is a serious, life-threatening illness, which constitutes an extraordinary physical impairment as that term is defined in the guidelines. The Government agreed at the time of sentencing not to contest a court ruling that defendant's cancer is a "mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0; see United States v. Perez, 756 F. Supp. 698 (E.D.N.Y. 1991).
A downward departure without recommendation by the Government ( cf. U.S.S.G. § 5K1.1) is warranted. Defendant is sentenced to the statutory minimum five year term of imprisonment, a five year term of supervised release and a fifty dollar special assessment. Since no recommendation of leniency is made by the Government, a term of imprisonment less than five years is not permissible. See 18 U.S.C. § 3553(e).