United States v. Orlando Gonzalez ( 1991 )

OAKES, Chief Judge:

The United States of America appeals from a judgment of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, sentencing Orlando Gonzalez to 33 months’ imprisonment for importing cocaine into the United States in violation of 21 U.S.C. § 952(a), a sentence that represented one-third of the minimum term prescribed by the Sentencing Guidelines. We affirm.

At sentencing, the court found that Gonzalez had a “feminine cast to his face and a softness of features which will make him prey to the long-term criminals with whom he will be associated in prison.” Relying on our decision in United States v. Lara, 905 F.2d 599 (2d Cir.1990), which held that “extreme vulnerability of a criminal defendant is a proper ground for departure,” id. at 603, the court concluded that a downward departure was appropriate to ensure Gonzalez’s safety, and therefore reduced Gonzalez’s sentence to one-third of the normally applicable minimum term.

The Government challenges the district court’s decision to depart downward on four grounds: (1) that Gonzalez’s overall appearance and demeanor were not so unusual as to warrant a downward departure; (2) that there was no evidence that Gonzalez “was bisexual, or possessed any other sexual orientation that might make him unusually vulnerable to physical abuse in prison;” (3) that there was no evidence that Gonzalez had been attacked while he was in custody awaiting trial and sentencing; and (4) that prison conditions are not an appropriate basis for downward departure. In the alternative, the Government argues that the extent of the court’s downward departure was excessive.

I

A district court is authorized to impose a sentence below the normally applicable Guidelines range if it “finds that there exists a[ ] ... mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b). Here, reviewing the district court’s factual determinations under the clearly erroneous standard, see Lara, 905 F.2d at 603,¹ we conclude that the downward departure was proper.

As to the Government’s first challenge, we believe that the court’s conclusion that Gonzalez’s overall appearance and demeanor made him unusually vulnerable was not clearly erroneous. Specifically, Judge Weinstein noted that Gonzalez was extremely small and feminine looking, and that, although he was nineteen, he had the appearance of a fourteen or fifteen year old boy. Under Lara, these factors are sufficient to establish that Gonzalez was unusually susceptible to prison abuse. See id.

The cases the Government cites to the contrary are inapposite. In United States v. Apple, 915 F.2d 899 (4th Cir.1990), the court held only that a refusal to depart downward was not reviewable on appeal. See id. at 912. The fact that the defendant in Apple based his claim for downward departure on a physical condition, therefore, was immaterial to the court’s holding and has no bearing on the present case. In United States v. Pozzy, 902 F.2d 133 (1st Cir.), cert. denied, — U.S. -, 111 S.Ct. 353, 112 L.Ed.2d 316 (1990), the court was concerned not with an unusually child-like or feminine young man, but rather with a pregnant woman, and it specifically rested its decision on the fact that pregnant women are neither “atypical nor unusual” in the federal penal system. See id. at 138-39. Because Gonzalez was not a pregnant woman, Pozzy is inapposite.

The Government’s second argument— that Gonzalez’s situation was different from that of the defendant in Lara because Gonzalez is neither gay nor bisexual—is entirely without merit. Harassment of individuals on the basis of sexual orientation is not directed only at persons who are gay or bisexual; rather, homophobic attacks are often based on the perpetrator’s mistaken perception that a heterosexual individual is in fact gay. Cf. Developments in the Law—Sexual Orientation and the Law, 102 Harv.L.Rev. 1508, 1541 n. 151 (1989) (noting that the National Gay and Lesbian Task Force has defined “anti-gay” violence as violence “directed against persons or their property because ... they are lesbian or gay or perceived to be so ”) (emphasis added). Thus, even if Gonzalez is not gay or bisexual, his physical appearance, insofar as it departs from traditional notions of an acceptable masculine demean- or, may make him as susceptible to homophobic attacks as was the bisexual defendant before us in Lara.

With regard to the Government’s third claim, we believe it would be absurd to interpret Lara as requiring a defendant to have already been victimized as a prerequisite to departing downward under the Sentencing Guidelines. After all, does it not make more sense to allow judges to prevent violence before it occurs, rather than requiring them to wait until the damage has already been done?

Finally, the Government’s contention that prison conditions do not present an adequate basis for downward departure is precluded by our holding in Lara, which was based in large part on the recognition that prison conditions may be particularly oppressive to vulnerable individuals.

II

The Government argues that, even if the initial decision to depart downward were permissible, the court need only have lowered Gonzalez’s sentence to 95 months in order to ensure that he would be placed in a “level one” (i.e., minimum security) facility, and that any departure below 96 months was therefore excessive. We disagree.

To be sure, once the court had ensured that Gonzalez would be placed in a level one facility, the risk to Gonzalez’s safety was considerably reduced. However, the court could reasonably have concluded that, even in a minimum security facility, the risk of assault could not entirely be eliminated. For example, under procedures applied by the Bureau of Prisons, prisoners serving lengthy sentences — even for violent crimes — are automatically considered for placement in minimum security facilities after a period of eight years. Under this system, then, even a level one facility will have its share of potentially assaultive inmates who have been transferred near the end of their terms. Because the risk of assault is present even in a level one facility, the court acted within its discretion in reducing Gonzalez’s sentence below 96 months.

It might be suggested that, if the court believed that placement in a level one facility would still subject Gonzalez to some risk of harm, the most logical solution would be to impose no jail time at all. Given that the Guidelines would probably not permit such a result, however, it could be argued that the court had no choice but to confine Gonzalez to the level one facility for the maximum time allowable. In our view, however, the fact that the Guidelines preclude what might be the most logical way to ensure Gonzalez’s safety — i.e., a sentence of no jail time — does not mean that the court must then impose what is undoubtedly the most il logical of all results — placement in the level one facility for the full 95 months. Rather, it seems to us that by choosing a shorter period of incarceration, and thereby diminishing the likelihood that Gonzalez would be assaulted, the court sensibly balanced Gonzalez’s need for safety against the Government’s interest in incarcerating wrongdoers.

Accordingly, the judgment of the district court is affirmed.

1 . The Government correctly notes that, in Lara, we reviewed de novo the district court’s determination that extreme vulnerability was not adequately considered by the Sentencing Commission. See 905 F.2d at 602. However, the question here is not the legal question whether extreme vulnerability is a proper basis for departure (that question, after all, has already been settled in this Circuit by virtue of Lara), but rather the factual question whether the facts upon which the district court relied sufficiently establish that Gonzalez was extremely vulnerable. As to that question, the clearly erroneous standard applies. See id. at 603.