Opinion
04 Cr. 1148-1 (RWS).
November 13, 2006
SENTENCING OPINION
On September 5, 2005, Defendant Edward Boakye ("Boakye") pled guilty to one count of conspiracy to import heroin and one count of conspiracy to distribute and possess with intent to distribute heroin. For the reasons set forth below, Boakye will be sentenced to 120 months' imprisonment, to be followed by a five-year term of supervised release. Boakye also will be required to pay a special assessment of $200.
Prior Proceedings
Boakye was arrested on August 16, 2004 and has remained in custody without bail since that time. 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, Boakye 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"). On September 5, 2005, Boakye appeared before the Honorable Henry Pitman of this District and, pursuant to a plea agreement, pled guilty to his criminal conduct as charged in Counts One and Two of the indictment. Defendant's sentencing is scheduled for November 13, 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 Boakye'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, Boakye, along with his codefendants Akosua Animpong ("Animpong"), John Aggrey-Fynn, Caroline Quarshie, Ebenezer Owusu, and others, conspired to import heroin into the United States from Ghana. During transport, the heroin was concealed in compartments sewn into traditional African shirts. After receiving the shirts, the conspirators retrieved the heroin by unstitching the shirts. The heroin was then distributed to customers in various locations. According to the indictment, large quantities were distributed directly from Animpong's apartment in the Bronx, while Boakye made several trips to Maryland to sell heroin.
Boakye was arrested on August 16, 2004. In a subsequent search of Boakye's apartment, 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. Pursuant to a plea agreement, Boakye is being held accountable for the importation and distribution of between one and three kilograms of heroin. The Relevant Statutory Provisions
The mandatory minimum term of imprisonment for Counts One and 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 per count is required if a sentence of imprisonment is imposed, pursuant to 21 U.S.C. §§ 963, 841(b)(1)(A), and 846. Such terms of supervised release run concurrently, pursuant to 18 U.S.C. § 3624(e).
Boakye 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 Counts One and Two is $4 million per count, 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 $200 is mandatory. 18 U.S.C. § 3013.
The Guidelines
The March 27, 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). Counts One and Two are grouped together for calculation purposes. § 3D1.2(d).
The Guideline for violations of 21 U.S.C. §§ 963 and 846 is found in section 2D1.1. Pursuant to a plea agreement, Boakye is responsible for the trafficking of between one and three kilograms of heroin. As specified in the Drug Quantity Table under section 2D1.1(c)(4), the base offense level is 32.
Based on his plea allocution, Boakye has shown recognition of responsibility for the offense. Pursuant to section 3E1.1(a), the offense is reduced two levels. Further, because Boakye's timely notification of his intention to plead guilty has allowed the Government to allocate its resources more efficiently, and because the offense level is sixteen or greater, the offense level is reduced one additional level. § 3E1.1(b). The Defendant's resulting adjusted offense level is 29.
Boakye has one known prior criminal conviction for the transportation of stolen vehicles. He was held accountable for five stolen vehicles worth $138,421. Boakye was released from custody for the prior offense on June 15, 2004, and was arrested for the instant offense on August 16, 2004.
Boakye's prior criminal conviction results in a criminal history score of three. At the time the instant offense was committed, the Defendant was on supervised release. Pursuant to section 4A1.1(d), two points are added. The instant offense also was committed less than two years after Boakye's release from custody on June 15, 2004, for the sentence imposed on February 13, 2002. Pursuant to section 4A1.1(e), one point is added, as two points were added under section 4A1.1(d). The total of the criminal history points is six. Boakye therefore has a Criminal History Category of III.
Based on a total offense level of 29 and a Criminal History Category of III, the Guidelines range for imprisonment is 108 to 135 months. However, because the statutorily required minimum sentence of 10 years is greater than the minimum of the applicable Guidelines range, the modified range is 120 to 135 months. § 5G1.1(c)(2).
The guideline range for a term of supervised release is five years, the minimum required by statute, per count, pursuant to section 5D1.2(c).
The penalties applicable to Counts One and Two preclude a sentence of probation, pursuant to section 5B1.1(b)(2).
The fine range for the instant offense is from $15,000 to $8,000,000. § 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 $1,933.80 to be used for imprisonment, a monthly cost of $287.73 for supervision, and a monthly cost of $1,675.23 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.
The Sentence
For the instant offense, Boakye is hereby sentenced to 120 months' imprisonment on each of Counts One and Two, to run concurrently, followed by a five-year term of supervised release.
Since Boakye has been detained without bail since his arrest, he is not a candidate for voluntary surrender. 18 U.S.C. § 3143(a)(2). Boakye 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, Boakye 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 submit to one drug test within fifteen days of placement on supervised release and at least two unscheduled drug tests thereafter, as directed by the probation officer; and (5) cooperate in the collection of DNA as directed by the probation officer.
Furthermore, the standard conditions of supervision (1-13) shall be imposed with the additional special condition that Boakye shall obey the immigration laws and cooperate with officials of the Bureau of Immigration and Customs Enforcement.
In consideration of all the factors set forth in 18 U.S.C. § 3572(a), it does not appear that the defendant has any assets with which to pay a fine, so the fine in this case shall be waived.
A special assessment of $200, 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 13, 2006.
It is so ordered.