On October 23, 2015, the New York Law Journal (Joel Stashenko) published the article “Woman’s Conviction for Conduct Affecting Fetus Is Dismissed” Arguably, the Suffolk County District Attorney’s Office should not have brought the case and this woman should not have been convicted of manslaughter for the death of her 6-day-old baby from in-utero injuries sustained in a car accident that she caused by being under the influence.

The conviction of Jennifer Jorgensen for a May 2008 accident in Suffolk County where authorities say her vehicle crossed the center line of a busy road and smashed head-on into an oncoming vehicle, killing its occupants. Jorgensen, who police said was incapacitated by alcohol and/or prescription medications, was 34 weeks pregnant at the time. Jorgenson, not wearing a seatbelt at the time, injured her unborn baby when she struck the steering column in the crash and was delivered by cesarian section.

“Thirteen months [after her child’s death], defendant [(Jorgensen)] was indicted on three counts of manslaughter in the second degree (Penal Law §125.15 [1]), one count of aggravated vehicular homicide (Penal Law §125.14), and one count of operating a motor vehicle while under the combined influence of alcohol or drugs (Vehicle & Traffic Law §1192 [4-a]). After the first jury failed to reach a unanimous verdict, the parties proceeded to a second trial on all counts.” People v. Jorgensen, No. 179, NYLJ 1202740469239, at *2 (Ct. of App., Decided October 22, 2015)

The issue the Court of Appeals reached “is whether a woman can be convicted of manslaughter for reckless conduct that she engaged in while pregnant that caused injury to the fetus in utero where the child was born alive but died as a result of that injury days later.” Jorgensen, at *3.

The Court made clear that “[t]he imposition of criminal liability upon pregnant women for acts committed against a fetus that is later born and subsequently dies as a result of injuries sustained while in utero should be clearly defined by the legislature, not the courts. It should also not be left to the whim of the prosecutor.” Jorgensen, at *7 The Court of Appeals held “that it is evident from the statutory scheme that the legislature, in enacting Penal Law §125.05 (1) and §125.15 (1), did not intend to hold pregnant women criminally responsible for conduct with respect to themselves and their unborn fetuses unless such conduct is done intentionally.” Jorgensen, at *3.

The Court of Appeals reversed the Second Department and dismissed the remaining indictment.

Dissenting, Justice Fahey indicated that “[w]here, as here, the baby-victim is born alive but subsequently dies, the Penal Law allows for the conviction of a defendant-mother of manslaughter in the second degree where the acts causing the baby’s death occurred before that infant was born….” That seemed to be the difference here. If Jorgensen did not consent to having the C-Section, this probably would have never become an issue. Nonetheless, as the prosecutor argued it, J. Fahey addressed it.

The Defendant was sentenced in April, 2012. As part of a plea agreement, the Defendant was sentenced to a seventy-eight month term of imprisonment. The instant matter is to decide the defendant’s motion to reduce the sentence.

History: “Pursuant to the United States Sentencing Guidelines Manual (“the Guidelines”) effective at the time of defendant’s sentencing, defendant’s base offense level was twenty-six (26). See U.S.S.G. §2D1.1. Four (4) points were added to the base offense level to determine the combined offense level pursuant to §3D1.4(a) of the Guidelines, but the combined offense level was reduced by three (3) levels based upon defendant’s acceptance of responsibility pursuant to §3E1.1 of the Guidelines, thereby placing defendant at a total offense level of twenty-seven (27) at the time of his sentencing. Since defendant’s criminal history placed him in Criminal History Category II, the then-applicable advisory Guidelines range was a term of imprisonment of between seventy-eight (78) to ninety-seven (97) months, the range stipulated in the plea agreement.” Pp. 2-3.

The defendant moves to reduce his sentence pursuant to 18 U.S.C. §3582(c)(2), which provides, in relevant part:

“The court may not modify a term of imprisonment once it has been imposed except that — *** in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant * * *, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Pp. 2-3.

Law: The Supreme Court has held that “[b]y its terms, §3582(c)(2) does not authorize a sentencing or resentencing proceeding. Instead, it provides for the ‘modif[ication of] a term of imprisonment’ by giving courts the power to ‘reduce’ an otherwise final sentence in circumstances specified by the [Sentencing] Commission.” Dillon v. United States, 560 U.S. 817, 130 S. Ct. 2683, 2690, 177 L. Ed. 2d 271 (2010); see also U.S. v. Johnson, 732 F.3d 109, 116 (2d Cir. 2013) (holding that a Section 3582(c)(2) proceeding is “neither a sentencing nor a resentencing.”) Since Section 3582(c)(2) authorizes “only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding,” Dillon, 560 U.S. 817, 130 S. Ct. at 1391, the sentencing court is not “free to address * * * arguments regarding [other] errors at [the defendant’s] original, now final sentencing.” U.S. v. Mock, 612 F.3d 133, 134-35 (2d Cir. 2010).

“The Supreme Court has set forth a ‘two-step inquiry’ for resolving motions pursuant to §3582(c)(2) for a sentence reduction.” U.S. v. Christie, 736 F.3d 191, 194 (2d Cir. 2013) (citing Dillon, 560 U.S. 817, 130 S. Ct. at 2683); accord U.S. v. Bethea, 735 F.3d 86, 87 (2d Cir. 2013). First, the sentencing court must “determine that a reduction is consistent with §1B1.10 * * * by determin[ing] the prisoner’s eligibility for a sentence modification and the extent of the reduction authorized.” Dillon, 560 U.S. 817, 130 S. Ct. at 2691. “Specifically, §1B1.10 requires the court to begin by ‘determin[ing] the amended guideline range that would have been applicable to the defendant’ had the relevant amendment been in effect at the time of the initial sentencing.” Id.

The defendant is entitled, and the government agrees, to a reduced sentence. While “[t]he government does not dispute that defendant is eligible for a limited sentence reduction under 18 U.S.C. §3582(c)(2), [it]…argues, in essence, that no reduction of defendant’s sentence is warranted in this case.” Pp. 2. “As relevant here, Amendment 782 to the Guidelines, effective November 1, 2014, modified §2D1.1(c) of the Guidelines by reducing the offense levels in the Drug Quantity Table by two (2) levels and, thereby, lowering the advisory Guidelines sentencing range for certain categories of drug-related offenses.” Pp. 4. This reduction in the sentencing range would impact the Defendant’s sentence but it does not bind a judge to act accordingly.

Indeed, “[a] retroactive amendment to the Guidelines merely authorizes a reduction in sentence; it does not require one.” Wilson, 716 F.3d at 52 (quotations and citation omitted); see also U.S. v. Rios, 765 F.3d 133, 137 (2d Cir. 2014), cert. denied by Bautista v. United States, — S. Ct. —, 2015 WL 2256183 (Oct. 5, 2015) (reviewing the district court’s denial of a motion to reduce the defendant’s sentence under §3582(c)(2) for abuse of discretion). See Pp. 5. The Court noted, as the Defendant’s motion made clear, that the Defendant is entitled to a sentence reduction. Instead of the over seventy months the defendant was sentenced, the Defendant would be entitled to a sentence reduction of as much as fifteen months. The Court agrees with the government’s argument, however, that the relevant factors at the time of sentencing have not changed. Because there is no change in circumstances, the Court finds that no change in sentence is warranted even though the sentencing guidelines changed.

 

Conclusion: Sentence upheld; motion denied.

 

The Case is USA v. Johnson, 12-CR-261, NYLJ 1202739531148, at 1 (EDNY, Decided October 8, 2015)