Opinion
03 Cr. 156-08 (RWS).
October 19, 2006
SENTENCING OPINION
Defendant John Jairo Alvarez Castellanos ("Castellanos") pled guilty to one count of conspiracy to distribute and possess with intent to distribute one kilogram and more of heroin, in violation of 21 U.S.C. § 846. For the reasons set forth below, Castellanos will be sentenced to 120 months' imprisonment, to be followed by a five-year term of supervised release. Castellanos also will be required to pay a special assessment of $100.
Prior Proceedings
On February 6, 2003, a superseding indictment was filed in this District, charging Castellanos with one count of conspiracy to distribute and possess with intent to distribute one kilogram and more of heroin, and one count of importing into the United States one kilogram or more of heroin. Castellanos was arrested in Colombia on April 16, 2003. A second superseding indictment was filed on May 15, 2003. Castellanos was extradited to the United States on November 3, 2004, and has been in federal custody since that time. On June 5, 2006, he appeared before the Honorable Gabriel W. Gorenstein and allocuted to his criminal conduct only as charged in count one of the second superseding indictment. Castellanos's sentencing is scheduled for October 19, 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
Castellanos was born on December 28, 1966, in the city of Caicedonia, Colombia. He is the younger of two children born to the consensual union of his parents. His father died in 1968, while his mother currently resides in Colombia. His older brother died in an airplane crash in 1990.
The defendant was arrested on June 21, 1998, and charged with trying to import heroin into the United States. Castellanos pled guilty and was sentenced to forty-six months' imprisonment and three years' supervised release. He remained in U.S. custody until December 5, 2001, when he was deported to Colombia.
Castellanos was married to his co-defendant Marisol Rodriguez in 1991, and they have two children. Castellanos and Rodriguez separated following his arrest in 1998. From the time of his deportation in 2001, Castellanos's children have continuously resided with his mother.
Castellanos completed eleven years of formal education in Colombia, the equivalent of a high school education in the United States.
From 2002 until his arrest in 2003, the defendant was self-employed in Colombia as an automobile sales agent, brokering deals between buyers and sellers, and earning a monthly commission equivalent to approximately $330 to $425. Between approximately 1995 and 1997, Castellanos worked as a taxi driver in Colombia. He reports daily earnings equivalent to approximately $8.50. Prior to this time, he worked as a rice grower. Castellanos reports minimal assets and no outstanding liabilities. The Offense Conduct
The offense involves efforts to import heroin into the United States from Colombia between August and November 2002. Castellanos primarily acted as an intermediary between his wife Marisol Rodriguez and a Colombian heroin supplier, Leovigildo Perez. Castellanos is accountable for conspiring to distribute more than one but less than three kilograms of heroin.
The Relevant Statutory Provisions
The mandatory minimum term of imprisonment is ten years; the maximum term of imprisonment is life, pursuant to 21 U.S.C. §§ 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. §§ 841(b)(1)(A) and 846.
Castellanos is not eligible for probation because the instant offense is one for which probation has been expressly prohibited by statute, pursuant to 18 U.S.C. § 3561(a)(2), and because the offense is a Class A felony, pursuant to 18 U.S.C. § 3561(a)(1).
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 is $4,000,000, pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 846. A special assessment in the amount of $100 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).
The Guideline for violations of 21 U.S.C. § 846 is found in section 2D1.1. Based on his plea allocution, Castellanos is accountable for at least one but less than three kilograms of heroin. As specified in the Drug Quantity Table under section 2D1.1(c)(1), this results in a base offense level of 32.
Based on his plea allocution, Castellanos has shown recognition of responsibility for the offense. Pursuant to section 3E1.1(a), the offense is reduced two levels. Further, because Castellanos'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 16 or greater, the offense level is reduced one additional level. USSG § 3E1.1(b). The defendant's resulting adjusted offense level is 29.
Castellanos receives three criminal history points for his prior conviction. USSG § 4A1.1(a). Because Castellanos was on supervised release at the time the instant offense was committed, two criminal history points are added. USSG § 4A1.1(d). Additionally, because the instant offense was committed less than two years after his release from custody, one point is added. USSG § 4A1.1(e). The total of the criminal history points is five. Thus, Castellanos 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 statutory mandatory minimum sentence is ten years, the Guidelines range for imprisonment becomes 120 to 135 months, pursuant to § 5G1.1(c)(2).
The Guidelines range for a term of supervised release is five years, pursuant to section 5D1.2(b).
Castellanos is not eligible for probation because the count of conviction is one for which probation has been expressly prohibited by statute, pursuant to USSG § 5B1.1(b) (2), and because the offense is a Class A felony, pursuant to 18 U.S.C. § 5B1.1(b) (1).
The Guidelines fine range for the instant offense is from $15,000 to $4,000,000. § 5E1.2(c). 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 $1,952.66 to be used for imprisonment, a monthly cost of $287.50 for supervision, and a monthly cost of $1,736.98 for community confinement.
The Conditions Of Castellanos's Pretrial Confinement
Castellanos has suggested that the conditions of his presentence confinement should be taken into account in determining his sentence. From the time of his arrest in Colombia on April 16, 2003 to the time of his extradition to the United States on November 3, 2004, Castellanos was housed at the Combita Prison in Tunja, Colombia. The prison is reportedly located approximately 11,000 feet above sea level, and has no hot water for the prisoners. Castellanos has stated that during his incarceration he was routinely kept in an outdoor courtyard from 5:00 a.m. to 5:00 p.m., exposed to inclement weather in inadequate or no clothing, and beaten by prison guards.
The U.S. State Department has noted that most of Colombia's prisons are plagued by "[o]vercrowding, insecurity, corruption, and an insufficient budget," and that at Combita Prison in particular, "lack of money to pay sanitation fees led to water rationing." Bureau of Democracy, Human Rights, and Labor, U.S. Dep't of State, Colombia: Country Reports on Human Rights Practices — 2005 (2006), http://www.state.gov/g/drl/rls/hrrpt/2005/61721.htm (last visited Oct. 19, 2006). Amnesty International has reported conditions at Combita Prison similar to those reported by Castellanos. See Amnesty Int'l, Amnesty International's Briefing to the UN Committee against Torture on the Republic of Colombia (2003), http://web.amnesty.org/library/print/engamr230662003 (last visited Oct. 19, 2006) (noting that prisoners "have been left exposed for long periods of time to the sun and rain," are forced to "shower in the open air and left outside for periods of about an hour without being able to dry themselves or dress," and have "reportedly been given rotten food or food which appears to have been contaminated.").
The Second Circuit has noted that "pre-sentence confinement conditions may in appropriate cases be a permissible basis for downward departures." United States v. Carty, 264 F.3d 191, 196 (2d Cir. 2001) (vacating and remanding for reconsideration of defendant's request for downward departure in light of conditions of pre-sentence detention in Dominican Republic). At least one court in this District has granted a downward departure for pre-sentence conditions that "effectively enhanced, to a disproportionate degree, the level of punishment contemplated to be experienced by inmates in the typical case during the period of incarceration prescribed by the Guidelines."United States v. Mateo, 299 F. Supp. 2d 201, 212 (S.D.N.Y. 2004). A downward departure is unavailable in the instant case, because the ten-year statutory mandatory minimum acts as the lower bound of Castellanos's Guidelines range, and Castellanos is not eligible for safety valve relief under 18 U.S.C. § 3553(f). Nevertheless, the Court takes note of the conditions of pre-sentence detention in this case for purposes of determining the proper sentence within the Guidelines range.
The Remaining Factors of 18 U.S.C. § 3553(a)
Having considered the Guidelines calculations, as set forth above, the 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 inBooker, 543 U.S. 220, and the Second Circuit's decision inCrosby, 397 F.3d 103. In light of all of the factors enumerated in section 3553(a), it is hereby determined that a Guidelines sentence is warranted.
The Sentence
In light of the conditions of Castellanos's pre-sentence detention discussed above, the mandatory minimum sentence is sufficient to achieve the purposes of sentencing set forth at 18 U.S.C. § 3553(a)(2). For the instant offense, therefore, Castellanos will be sentenced to 120 months' imprisonment, to be followed by a five-year term of supervised release. To enable Castellanos to remain in close contact with his loved ones, it is recommended that Fort Dix be designated as the place of service for his term of imprisonment.
Since Castellanos has been detained without bail since his arrest, he is not a candidate for voluntary surrender. 18 U.S.C. § 3143(a)(2). If not deported at the conclusion of his term of imprisonment, Castellanos 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, Castellanos 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. Castellanos shall submit to one drug test within fifteen days of placement on supervised release and at least two unscheduled tests thereafter, as directed by the probation officer.
The standard conditions of supervision (1-13) shall be imposed, along with the special condition that Castellanos obey the immigration laws and comply with the directives of the immigration authorities.
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 set for October 19, 2006.
It is so ordered.