Opinion
04 Cr. 1148-4 (RWS).
November 22, 2006
SENTENCING OPINION
On October 28, 2005, Defendant John Aggrey-Fynn ("Aggrey-Fynn") was found guilty after a jury trial of one count of conspiracy to distribute and possess with intent to distribute heroin. For the reasons set forth below, Aggrey-Fynn will be sentenced to 120 months' imprisonment, to be followed by a five-year term of supervised release. Aggrey-Fynn also will be required to pay a special assessment of $100.
Prior Proceedings
Aggrey-Fynn was arrested on October 5, 2004 and released on $200,000 bail on November 4, 2004. A superseding indictment was filed in the Southern District of New York on March 22, 2005, charging in part that from about July 2004 through about August 20, 2004, Aggrey-Fynn and others (1) conspired in violation of 21 U.S.C. § 963 to import into the United States one kilogram and more of heroin, in violation of 21 U.S.C. §§ 952, 960(a)(1), and 960(b)(1)(A) ("Count One"), and (2) conspired in violation of 21 U.S.C. § 846 to distribute and possess with intent to distribute one kilogram and more of heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A) ("Count Two"). Trial against Aggrey-Fynn and his co-defendant Caroline Quarshie began on October 25, 2005. Aggrey-Fynn was convicted of Count Two only and remanded into custody on October 28, 2005. His motion for a new trial was denied by opinion dated February 16, 2006. The defendant is scheduled for sentencing on November 30, 2006.
The Sentencing Framework
In accordance with the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), the sentence to be imposed was reached through consideration of all of the factors identified in 18 U.S.C. § 3553(a), including the advisory Sentencing Guidelines (the "Guidelines") established by the United States Sentencing Commission. Thus, the sentence to be imposed here is the result of a consideration of:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for —
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . .;
(5) any pertinent policy statement . . . [issued by the Sentencing Commission];
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.18 U.S.C. § 3553(a). A sentencing judge is permitted to find all the facts appropriate for determining a sentence, whether that sentence is a so-called Guidelines sentence or not. See Crosby, 397 F.3d at 114-15. The Defendant
The Court adopts the facts set forth in the Probation Department's Presentence Investigation Report ("PSR") with respect to Aggrey-Fynn's personal and family history.
The Offense Conduct
The indictment filed in this action charges that from about July 2004 through about August 20, 2004, Aggrey-Fynn, along with his codefendants Akosua Animpong ("Animpong"), Edward Boakye, Ebenezer Owusu ("Owusu"), and others, conspired to import heroin into the United States from Ghana and to distribute it within this country. The scheme involved concealing heroin in compartments sewn into traditional African shirts, which were transported in the luggage of individuals traveling from Ghana to the United States. After receiving the shirts, the conspirators retrieved the heroin by unstitching the shirts. The heroin was then distributed to customers in various locations.
Aggrey-Fynn was responsible for delivering the imported shirts to Animpong. In a search of Animpong's apartment on August 16, 2004, Drug Enforcement Agency agents found what appeared to be three pieces of traditional African garments with the seams ripped open. Agents also found cutting agents, as well as an undetermined amount of U.S. currency in excess of $5000, and Western Union documents reflecting money transfers to Colombia and Ghana. Additional garments containing approximately 3.2 kilograms of heroin were found in Owusu's home. Aggrey-Fynn is being held accountable for the distribution of between three and ten kilograms of heroin.
The Relevant Statutory Provisions
The mandatory minimum term of imprisonment for Count Two is ten years; the maximum term of imprisonment is a term of life, pursuant to 21 U.S.C. §§ 963, 841(b)(1)(A), and 846.
A term of at least five years' supervised release is required if a sentence of imprisonment is imposed, pursuant to 21 U.S.C. §§ 963, 841(b)(1)(A), and 846.
Aggrey-Fynn is not eligible for probation because the instant offense is one for which probation has been expressly precluded by statute, pursuant to 18 U.S.C. § 3561(a)(2), 21 U.S.C. § 963, and 21 U.S.C. § 841(b)(1)(A).
Pursuant to the Violent Crime Control and Law Enforcement Act of 1994, all offenders on probation, parole or supervised release for offenses committed after September 13, 1994, are required to submit to one drug test within fifteen days of commencement of probation, parole or supervised release and at least two drug tests thereafter for use of a controlled substance, unless ameliorated or suspended by the court due to its determination that the defendant poses a low risk of future substance abuse as provided in 18 U.S.C. §§ 3563(a)(5) and 3583(d).
The maximum fine for Count Two is $4 million, pursuant to 18 U.S.C. § 3571.
Pursuant to 21 U.S.C. § 862(a)(1)(A), upon a first conviction for distribution of a controlled substance, a defendant may be declared ineligible for any or all Federal benefits for up to five years as determined by the Court.
A special assessment in the amount of $100 is mandatory. 18 U.S.C. § 3013.
The Guidelines
The November 1, 2006 edition of the United States Sentencing Commission Guidelines Manual has been used in this case for calculation purposes, pursuant to section 1B1.11(a).
The Guideline for violations of 21 U.S.C. § 846 is found in section 2D1.1. Aggrey-Fynn is being held responsible for the trafficking of between three and ten kilograms of heroin. As specified in the Drug Quantity Table under section 2D1.1(c)(3), the base offense level is 34.
The defendant has no known criminal convictions. Therefore, Aggrey-Fynn has no criminal history points and a Criminal History Category of I.
Based on a total offense level of 34 and a Criminal History Category of I, the Guidelines range for imprisonment is 151 to 188 months.
The Guidelines range for a term of supervised release is five years, the minimum required by statute, pursuant to section 5D1.2(c).
The defendant is not eligible for probation because the instant offense is a Class A felony, pursuant to section 5B1.1(b)(1).
The fine range for the instant offense is from $17,500 to $4,000,000. § 5E1.2(c)(3)(A), (c)(4). Subject to the defendant's ability to pay, in imposing a fine, the Court shall consider the expected costs to the Government of any imprisonment, probation, or supervised release. § 5E1.2(d)(7). The most recent advisory from the Administrative Office of the United States Courts suggests a monthly cost of $1,931.97 to be used for imprisonment, a monthly cost of $292.21 for supervision, and a monthly cost of $1,590.66 for community confinement.
Pursuant to section 5F1.6, the Court may deny eligibility for certain Federal benefits of any individual convicted of distribution or possession of a controlled substance.
The Remaining Factors of 18 U.S.C. § 3553(a)
Having engaged in the Guideline analysis, this Court also gives due consideration to the remaining factors identified in 18 U.S.C. § 3553(a) in order to impose a sentence "sufficient, but not greater than necessary," as is required in accordance with the Supreme Court's decision in Booker, 543 U.S. 220, and the Second Circuit's decision in Crosby, 397 F.3d 103. Pursuant to all of the factors, it is hereby determined that a guideline sentence is warranted. In particular, section 3553(a)(2)(A) demands that the penalty "provide just punishment for the offense" that simultaneously "afford[s] adequate deterrence to criminal conduct" as required by § 3553(a)(2)(B). In addition, section 3553(a)(6) highlights "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."
The Second Circuit has noted that the principle of deterrence requires "requires an appropriate relationship between the sentence for the current offense and the sentences, particularly the times served, for [any] prior offenses," and that a large disparity between the Guidelines sentence and any prior time served "might indicate that the [Guidelines] sentence provides a deterrent effect . . . in excess of what is required. . . ." United States v. Mishoe, 241 F.3d 214, 220 (2d Cir. 2001) (discussing downward departure from Guidelines sentence resulting from defendant's career criminal designation). In the instant case, Aggrey-Fynn is facing a mandatory minimum sentence of 120 months, which is a substantial punishment. Although the offense is a serious one, it is also his first: the defendant has no prior convictions, and has never been incarcerated. Aggrey-Fynn also has demonstrated his capability and willingness to be a productive citizen by maintaining gainful employment for many years and pursuing higher education. In these circumstances, the Guidelines range of 151-188 months on this first-time offender provides a deterrent effect in excess of what is required and would result in a sentence greater than necessary to achieve the purposes set forth in 18 U.S.C. § 3553(a)(2).
In addition, the Court must take into account "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. § 3553(a)(6). Since Booker, a growing number of courts have "held that sentencing judges are `no longer prohibited from considering the disparity between co-defendants in fashioning a reasonable sentence.'" Ferrara v. United States, 372 F. Supp. 2d 108 (D. Mass. 2005) (quoting United States v. Hensley, No. 2:04 CR 10081, 2005 WL 705241, at *2 (W.D. Va. Mar. 29, 2005)); see also United States v. McGee, 408 F.3d 966 (7th Cir. 2005); Simon v. United States, 361 F. Supp. 2d 35, 49 (E.D.N.Y. 2005). Aggrey-Fynn's co-defendant Edward Boakye, who pled guilty to Counts One and Two of the indictment, previously was sentenced to 120 months' imprisonment. In consideration of the factors set forth in 18 U.S.C. § 3553(a), it is determined that a non-Guidelines sentence is appropriate.
The Sentence
For the instant offense, Aggrey-Fynn will be sentenced to 120 months' imprisonment, to be followed by a five-year term of supervised release.
Since Aggrey-Fynn has been detained without bail since his conviction, he is not a candidate for voluntary surrender. 18 U.S.C. § 3143(a)(2). Aggrey-Fynn is directed to report to the nearest Probation Office within seventy-two hours of release from custody. It is recommended that the defendant be supervised by the district of residence.
As mandatory conditions of his supervised release, Aggrey-Fynn shall: (1) not commit another federal, state, or local crime; (2) not illegally possess a controlled substance; (3) not possess a firearm or destructive device; and (4) cooperate in the collection of DNA as directed by the probation officer. The mandatory drug testing condition is suspended based on the Court's determination that the defendant poses a low risk of future substance abuse.
Furthermore, the standard conditions of supervision (1-13) shall be imposed with the additional special condition that Aggrey-Fynn shall submit his person, residence, place of business, vehicle, or any other premises under his control to a search on the basis that the probation officer has reasonable belief that contraband or evidence of a violation of the conditions of the release may be found. The search must be conducted at a reasonable time and in a reasonable manner. Failure to submit to a search may be grounds for revocation. The defendant shall inform any other residents that the premises may be subject to search pursuant to this condition.
In consideration of all the factors set forth in 18 U.S.C. § 3572(a), it does not appear that the defendant is able to pay a fine, so the fine in this case shall be waived.
A special assessment of $100, payable to the United States, is mandatory and shall be due immediately.
The terms of this sentence are subject to modification at the sentencing hearing scheduled for November 30, 2006.
It is so ordered.