Sentencing Equality for Deportable Aliens: Departures from the Sentencing Guidelines on the Basis of Alienage

Peter Bakeas, a thirty-three-year-old Greek citizen living in West Lynn, Massachusetts and working in an entry-level position at the First National Bank of Greece in Massachusetts, developed a cocaine habit he could not afford. Mounting debt from his cocaine habit pressured him to find alternative means for obtaining income. Bakeas, using his position at First National Bank of Greece, began to embezzle money from the accounts of a distant relative and some family friends. When his scheme was discovered, he confessed and made arrangements to repay the money he had taken. Bakeas pled guilty to embezzlement by a bank officer, in violation of 18 U.S.C. § 656. It was his first offense. Normally, under the United States Sentencing Guidelines, a defendant convicted of this crime under these circumstances and with no criminal record would be sentenced to three years of probation, twelve months of which would be served in a community confinement center. A community confinement center is a minimum security facility that allows inmates a more normal life and more contact with the community than a typical prison. According to Federal Bureau of Prisons (“Bureau”) policy, however, an alien like Bakeas would not have been placed in one of these community centers, but rather would have been placed in a medium security prison – a decidedly more punitive environment. In Bakeas’s case, Judge Gertner, the sentencing judge, was aware of the Bureau’s policy and decided to depart from the statutorily prescribed sentence. Judge Gertner instead imposed a sentence of three years probation, with ten months of home confinement, in which Bakeas could leave his apartment only for work, religious observance, or medical care. In doing so, Judge Gertner imposed a sentence that was similar to what a non-alien defendant would have received for the same crime. Did Judge Gertner have the discretion under the Sentencing Guidelines to make this decision?