Opinion
No. S3 03 Cr. 1121-02 (RWS).
January 31, 2006
SENTENCING OPINION
Defendant Max Arreaga ("Arreaga") has pleaded guilty to conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, a Class B felony. Arreaga will be sentenced to a term of imprisonment of 24 months. Three years supervised release is also imposed.
Prior Proceedings
Arreaga was arrested on June 8, 2004. On December 7, 2005 an information was filed in the Southern District of New York, charging Arreaga with having conspired to distribute and to possess with intent to distribute 500 grams and more of cocaine from 2002 to 2003, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B). On September 7, 2005, Arreaga appeared before the Honorable James C. Francis in the Southern District and allocuted to his criminal conduct, in accordance with a plea agreement entered into with the government. The sentencing is scheduled for January 31, 2006.
The Sentencing Framework
In accordance with the Supreme Court's decision in United States v. Booker, 125 S. Ct. 738 (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") establishing 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 111.
The Defendant
The defendant was born Max Eduardo Arreaga-Garces on May 29, 1980, in Ecuador. He is the youngest of three children born to the marital union of Bolivar Arreaga and Dolores Garces. The defendant's father, approximately age 57, resides in Ecuador. The defendant's mother, age 55, resides on Long Island and is a housewife.
The defendant's siblings, Zaida, age 34; Steven, age 31, and Ignaica, age 29, reside in Florida. The defendant also has three maternal half siblings: Junior, age 20; Miuron, age 17, and Daniella, age 15. They all reside with their mother on Long Island.
The defendant related that he was raised in Ecuador by his aunt and uncle, as his parents had separated by the time he was a toddler. As such, he never lived with any of his siblings. His brother was living with their grandmother, and the defendant's sisters were living with their mother. While the defendant was living with his aunt and uncle, his mother had remarried and was in the process of moving to the U.S.
According to Arreaga, he was raised in an abusive environment. While he recalls seeing his father only twice during his life, he recalls being beaten so badly by him, that the next time he saw him, at about age 8, he ran from his father out of fear. Arreaga stated that he has no relationship with his father and has never attempted to contact him. While Arreaga's father got in touch with him about four years ago to apologize for the way he mistreated the defendant, Arreaga stated that he does not trust him. Arreaga has not had any contact with him since.
Arreaga stated that he was also beaten by his aunt and uncle for little to no reason. He advised that he believed that he was being disciplined, but now knows that the beatings were excessive. Further, Arreaga indicated that he was repeatedly sexually abused by older male cousins who did not live with him.
Arreaga stated that he did not live with his mother again until he was 13, when she came back to Ecuador to bring him to the U.S. Arreaga stated that his mother had come back for his siblings before she finally came back for him. He stated that during her visits to Ecuador, he did not see her, as she was more concerned with the other children. As a result, the defendant did not know his mother and their relationship was strained.
According to BICE records, the defendant came to the U.S., as a legal resident, on April 6, 1994. Further, according to the defendant, he believes that he has derived citizenship as his mother reportedly became a U.S. citizen when the defendant was about 15 years old.
The defendant stated that he came to the U.S. when he was about 14 years old, and that he was living with his mother and stepfather in Astoria, Queens. Arreaga stated that his mother and stepfather are very strict and religious, and he had difficulty adapting to their rules. He related that he was not doing well in school due to the language barrier, and his mother reportedly belittled and punished him as a result. Arreaga stated that his mother ultimately kicked him out of the house. While Arreaga stated that he had opportunities to go back home, he advised that his pride prevented him from doing so. Arreaga added that each of his older siblings also were kicked out of his parents' home at some point.
Arreaga was reportedly sent back to Ecuador, after being kicked out of his mother's home, and he stayed with a paternal aunt for a little less than a year. The defendant advised that he met an older gay man in Ecuador who also had a home in the U.S. Arreaga stated that this man assisted the defendant's return to the U.S., and that he lived with and had a consensual relationship with this man for about a year, which began in Ecuador.
Arreaga stated that while living with the man, he began smoking marijuana which had been introduced to him by the man's friends. Arreaga pointed out that he used the marijuana to help him cope with the uncomfortable situation he was in; as he is not a homosexual.
The defendant claimed that the man with whom he lived kicked him out after about a year. The defendant advised that he began living on the streets of New York, living with various friends and trying to survive the best way he could. He related that he also learned to speak English in the street, and with people with whom he lived, who would speak only English in the house.
After being in two different residential programs for about a year, the defendant left the program to live with a woman he met named Yvonne. Arreaga stated that she was a good person and they became very good friends. Arreaga related that he lived with her for a few months.
The defendant left Yvonne's home in order to live with his sister and her family in Queens County. The defendant's brother-in-law was an employee at a Sports Authority Store and helped the defendant get a job there. Arreaga lived with his sister, where he paid rent to sleep on the couch in their living room. Arreaga related that he never felt comfortable or wanted there, and his feelings were confirmed when his sister finally told him that he had to leave.
Arreaga stated that during this time he had met an older woman, Sonia Torres, about 41 years old, who was married but separated. Arreaga stated that Torres was in the prostitution business but also had a legal laundromat business. The defendant believes he became involved with her due to a combination of love, lust, and a chance for financial stability. Arreaga reportedly lived with Torres for about two years.
The defendant stated that Torres turned out to be a bad person. She was cold and used people to her advantage. According to Arreaga, she introduced him to prostitution and eventually had him prostituting for her. The defendant advised that he did not feel good about himself with what he was doing, because it was not in his nature. He adopted an attitude of not caring what he did or if he got sick, because this was what Torres wanted from him.
According to Arreaga, Torres had her ex-husband call and threaten him in an attempt to get him out of her house. He related that he and Torres had a physical altercation where she hit him and he retaliated. The defendant eventually left Torres' home.
During this time, the defendant's substance abuse had escalated and in a search for drugs, he met his co-defendant, Johnny Ozuna, a.k.a. Johnny Quest, an area drug dealer. Arreaga postured as someone with a lot of money who could purchase large amounts of drugs, when Arreaga was actually getting the money from Torres. Arreaga stated that he interacted with Ozuna for about four months.
The defendant stated that Torres had given him jewelry prior to kicking him out of the house. He reportedly pawned the jewelry to purchase a ticket to California after contacting a woman with whom he had a relationship at the age of 15 in Ecuador. She reportedly offered to help Arreaga, in spite of the fact that she was engaged, and got him a hotel room for a week. Arreaga stated that he got a job while in California, but it did not pay him enough to pay rent or feed himself. Arreaga subsequently decided to leave California and go to Florida, as his sisters and brother had moved to West Palm Beach.
Arreaga related that his brother-in-law again got him a job at a Sports Authority in West Palm Beach, and he began working there at night. Arreaga related that he did not like the way he was being treated and left the job.
About three months later, the defendant was arrested for his involvement in the instant offense and was extradited to New York.
The defendant is single, has never been married and he does not have any children.
The defendant stated that he received some counseling from Reverend James during the time he resided at Reverend James' residential program. However, he has never received any formal psychiatric care.
Arreaga was evaluated by Dr. Richard G. Dudley, Jr., after defense counsel observed the defendant to be confused and unfocused. After two lengthy evaluative sessions where the defendant talked about his entire life, Arreaga was diagnosed as having Borderline Personality Disorder. This means that Arreaga has a pervasive pattern of instability in interpersonal relationships and self image. People with this disorder will often engage in at least two forms of potentially self-damaging conduct (such as substance abuse and risky sexual conduct). Arreaga also scored in the low average area of intellectual functioning.
Arreaga was also diagnosed with Dysthymic Disorder, which refers to a chronically depressed mood. Dr. Dudley stated the defendant's impulsivity and impaired decision-making are made worse by his extremely low average intellectual functioning, his chronic substance abuse/dependence, his mood disturbance and post-traumatic symptoms. This condition is made worse by the fact that Arreaga has been trying to function in extremely difficult, unstable, and stressful situations. Dr. Dudley opined that Arreaga's judgment and capacity to make adult decisions has been extremely impaired. Dr. Dudley also concluded that although the defendant knows what he is doing, as a result of his psychiatric difficulties, it has been difficult for him to conform his behavior to the requirements of the law.
Lastly, Dr. Dudley stated that because of the various disorders, Arreaga has never really been able to take care of himself emotionally or in any concrete way, such as providing for himself the daily essentials, including housing and food. As such, Dr. Dudley determined that the defendant is easily influenced by others and can be taken advantage without much effort.
The defendant related that he began using marijuana when he was 17 years old. By the time he was 20, he was smoking marijuana on a weekly basis. At age 23, Arreaga used cocaine, Ecstasy, and crystal meth, for about three months while working at a night club called Cupids, located in West Palm Beach, FL. Arreaga stated that he gained access to all these drugs while working at the club largely because other employees were using the drugs. The defendant has never sought drug treatment.
The defendant reportedly attended William Cullen Bryant High School, located at 48-10 31st Avenue, Long Island City, NY. He dropped out of the ninth grade because he could not keep up with the work due to the language barrier.
The defendant related that prior to his arrest, he was polishing marble in the homes of West Palm Beach, FL, and earning between $70 and $80 per day, off the books.
According to the defendant, he worked as an exotic dancer at a gay nightclub called Cupids in West Palm Beach, FL, for about three months in 2004. He reportedly earned between $150 and $300 per night, and worked at least four nights per week.
The Offense Conduct
This statement of facts draws on the Presentence Investigation Report prepared by the U.S. Probation Office.
Arreaga was indicted along with eight other defendants for drug-trafficking activity involving the distribution of various forms of narcotics, including crack, cocaine, and heroin.
Arreaga's involvement in this conspiracy centered primarily around his allowing drug transactions to occur at his girlfriend's laundromat, located on the corner of 141st Street and Amsterdam Avenue, in Manhattan. Mr. Arreaga's relationship with the leader of this organization, Mr. Ozuna, lasted approximately four months. He received approximately one month's rent from the drug organization to conduct business out of the laundromat.
Relevant Statutory Provisions
The maximum term of imprisonment that may be imposed for the instant offense is 40 years. See 21 U.S.C. § 841(b)(1)(b). The mandatory minimum term of imprisonment is five years. See id. The applicability of the statutory minimum sentence may be limited in certain cases pursuant to 18 U.S.C. §§ 3553(f) (1)-(5).
A term of at least four years' supervised release is required if a sentence of imprisonment is imposed. See 21 U.S.C. § 841(b)(1)(b). The defendant is not eligible for probation because the instant offense is a Class B felony. See 18 U.S.C. §§ 3561(a)(1).
The maximum fine that may be imposed is $2,000,000. See 21 U.S.C. §§ 841 (b)(1)(B) and 846. A special assessment of $100 per count is mandatory. See 18 U.S.C. §§ 3013.
Based upon this Court's findings that the relevant statutory criteria have been met, the Court in this case may impose a sentence in accordance with the applicable sentencing analysis, without regard to any statutory minimum sentence. See 18 U.S.C. § 3553(f).
The Guidelines
The November 1, 2004 edition of the United States Sentencing Commission Guidelines Manual ("the Guidelines") has been used in this case for calculation purposes, in accordance with U.S.S.G. § 1B1.11(b)(1).
The guideline for violation of 18 U.S.C. § 841(b)(1)(B) is found in U.S.S.G. § 2D1.1, which provides for a base offense level of 26, because the defendant possessed with intent to distribute at least 500 grams but less than 2 kilograms of cocaine. See U.S.S.G. § 2D1.1(c) (7).
Based on his plea allocution, Arreaga has shown recognition of responsibility for his offense. Therefore his offense level is reduced two levels. See U.S.S.G. § 3E1.1(a). Furthermore, a one-level reduction is warranted, because Arreaga gave timely notice of his intention to plead guilty. See U.S.S.G. § 3E1.1(b). The resulting adjusted offense level is 23.
Arreaga meets the criteria for a "safety value reduction," as set forth in subdivisions (1)-(5) of U.S.S.G. § 5C1.2(a). Accordingly, the base offense level is decreased by an additional 2 levels. See U.S.S.G. § 2D1.1(b)(6). Based on the foregoing, Arreaga's adjusted offense level is 21.
Criminal History
Arreaga has no known criminal convictions. Therefore, he has zero criminal history points and a Criminal History Category of I.
Sentencing Options
Based on a total offense level of 21 and a Criminal History Category of I, the Guidelines range of imprisonment is 37 to 46 months.
The guideline range for a term of supervised release is at least three years but not more than five years. See § 5D1.2(a)(1). If a sentence of imprisonment of one year or less is imposed, a term of supervised release is not required, but is optional. See U.S.S.G. § 5D1.1(b). Supervised release is required if the Court imposes a term of imprisonment of more than one year or when required by statute. See U.S.S.G. § 5D1.1(a).
Because the applicable guideline range is in Zone D of the Sentencing Table, Arreaga is not eligible for probation, pursuant to U.S.S.G. § 5B1.1, application note #2.
After determining the defendant's ability to pay, the Court may impose a fine pursuant to U.S.S.G. § 5E1.2. The fine range for the instant offense is from $7,500 to $2,000,000. See U.S.S.G. §§ 5E1.2(c)(3)(A) and (B); 18 U.S.C. § 3571.
The Remaining Factors of Section 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 United States v. Booker, 160 L. Ed. 2d 621, 125 S.Ct. 738 (2005) and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2nd Cir. 2005). In particular, section 3553(a)(1) asks that the sentence imposed consider both "the nature and circumstances of the offense and the history and characteristics of the defendant," while 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).
As the above description of Arreaga and the psychiatric evaluation by Dr. Richard Dudley illustrates, Arreaga's childhood was abusive and ridden with neglect from his early childhood. It is apparent that the abuse Arreaga endured as a child and as an adolescent had its effects on his emotional and mental condition and his ability to make mature decisions. As stated previously, Arreaga also dropped out of high school in ninth grade; his minimal education has limited his employment prospects and has contributed to the persistent instability that has characterized Arreaga's life. Pursuant to § 3553(a)(1), these characteristics weigh in favor of imposing a non-guideline sentence.
In addition to Arreaga's mental and emotional condition, it is also noteworthy that he played a minimal role in the conspiracy to which he pleaded guilty. His involvement was limited to approximately four months and to making his girlfriend's laundromat available to others in the conspiracy. As such, Arreaga's involvement in the criminal conduct at issue makes clear that he is not a narcotics trafficker in the ordinary sense. Rather, Arreaga's involvement was brief, and, as Dr. Dudley noted "he got in over his head" as he was "easily influenced by others and was readily taken advantage of." Accordingly, the nature and circumstances of Arreaga's involvement militate in favor of the imposition of a non-guideline sentence.
Similarly, taking consideration of the need for the sentence to reflect the seriousness of the offense and to provide adequate general and specific deterrence, pursuant to § 3553(a)(2)(A) and (B), it is determined that the sentence imposed is appropriate. Arreaga has no criminal record, and he has never been incarcerated previously. For months prior to his arrest, Arreaga left New York for West Palm Beach, where he was living and working without any involvement in criminal activity.
In addition to deterrence, rehabilitation also serves as a goal of punishment. See § 3553(a)(2)(D). Given Arreaga's apparent need for psychiatric and emotional counseling — as well as Arreaga's commitment and drive to obtain such treatment — it is determined that the rehabilitative goals of punishment will be best served by the imposition of a non-Guidelines sentence.
Finally, in considering the remaining sentencing factors under 18 U.S.C. § 3553(a), 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, 2005 WL 1205758, at *11 (D. Mass. 2005) (quoting United States v. Hensley, 363 F. Supp. 2d 843, 2005 WL 705241, at *2 (W.D. Va. 2005)); see also United States v. McGee, 408 F.3d 966, 2005 U.S. App. LEXIS 10178, 2005 WL 1324815, at *17 (7th Cir. June 3, 2005); Simon v. U.S., 361 F. Supp. 2d 35, 49 (E.D.N.Y. 2005). Having paid due consideration to the sentences of his co-defendants, the sentence hereby imposed is deemed to avoid unwarranted disparities.
The Sentence
An offense level of 21 and a Criminal History Category of I results in a Guidelines range of 37 to 46 months. In light of the above considerations, however, a non-guideline sentence is warranted. Having given consideration to the 3553(a) factors, and in light of the defendant's safety-valve eligibility, a term of imprisonment of 24 months is hereby imposed.
Arreaga is also hereby sentenced to three years supervised release. Arreaga shall report to the nearest Probation Office within 72 hours of release from custody, and supervision will be in the district of his residence.
As mandatory conditions of supervised release, Arreaga 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; (4) refrain from any unlawful use of a controlled substance; and (5) cooperate in the collection of DNA as directed by the probation officer.
Arreaga shall comply with the standard conditions of supervision and shall also comply with the following special conditions: (1) he shall participate in a program approved by the United States Probation Office, which program may include testing to determine whether he has reverted to using drugs or alcohol, the costs of services for which he will be required to contribute, in an amount determined by the probation officer, based upon his ability to pay; (2) he shall participate in a mental health program approved by the U.S. Probation Office and continue to take any prescribed medications unless otherwise instructed by his health care provider, the costs of services for which he will be required to contribute, based upon his ability to pay; (3) he 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 release may be found; and (4) he shall obey the immigration laws and comply with the directives of immigration authorities.
Arreaga shall also pay to the United States a special assessment in the amount of $100, which shall be due immediately. Given Arreaga's inability to pay a fine, the fine in this case is waived.
It is so ordered.