Opinion
No. 03 Cr. 835 (RWS).
May 17, 2005
SENTENCING OPINION
Defendant Juan Castillo ("Castillo") has pled guilty to the three charges contained in the indictment filed on June 7, 2003. The indictment charges that Castillo: (1) conspired to distribute narcotics in violation of 21 U.S.C. § 846 (a Class A Felony), (2) distributed crack and possessed crack with intent to distribute in violation of 21 U.S.C. §§ 812, 841(a) (1) and 841(b) (1) (A) (a Class A Felony), and (3) distributed cocaine and possessed cocaine with intent to distribute in violation of 21 U.S.C. §§ 812, 841(a) (1), and 841(b) (1) (A)) (a Class A Felony). For each of these counts, Castillo will be sentenced to a separate 87-month term of incarceration to be followed by a separate 3-year term of supervised release, subject to the additional conditions described herein. All terms of incarceration and all terms of supervised release shall run concurrently. Prior Proceedings
A complaint alleging that Castillo had violated 21 U.S.C. §§ 812, 841(a) (1), 841(b) (1) (A), 846 and 18 U.S.C. § 2 was signed by the Honorable Andrew J. Peck of this district on May 29, 2003. A warrant was issued for Castillo's arrest that same day, and Castillo was arrested on June 9, 2003. On June 10, 2003, an order of detention as to Castillo was signed by the Honorable Debra C. Freeman of this district. On June 7, 2003, the indictment was filed. On June 11, 2003, Castillo pled not guilty to the three counts contained in the indictment. On March 24, 2004, Castillo allocuted to the three counts contained in the indictment before the Honorable Kevin N. Fox of this district. Castillo's guilty plea allocution was accepted by this Court on April 6, 2004. By letters dated September 7, 2004 and May 3, 2005, Castillo's counsel has raised issues concerning his sentence. In response to the issues raised in these letters, the government submitted a letter concerning Castillo's sentence on May 13, 2005.
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 114-15.
The Defendant
Castillo was born on February 16, 1977 in the Dominican Republic. He is the only child born to his mother and father. He has an older paternal half-sister.
Castillo's parents separated during his early childhood. Following their separation, Castillo lived with his father and step-mother. While growing up, he maintained minimal contact with his biological mother, who continues to reside in the Dominican Republic.
Castillo was raised under adequate economic circumstances. In 1989, Castillo's family emigrated to the United States. They settled in the Bronx, New York. Subsequently, Castillo alternately resided in the United States and the Dominican Republic. Castillo described his childhood as happy, and he reported no instances of abuse or neglect. Castillo completed 11 years of formal schooling.
In 1996, Castillo's father died after suffering a heart attack.
Castillo is not married. He has fathered four children with three different women. Two of these children reside in the Dominican Republic with their respective mothers. Prior to his arrest, Castillo provided financial support for both of these children.
For the past seven years, Castillo has been involved with one woman, and their union has produced two children. These children live in the Bronx with their mother, who visits Castillo regularly.
During the four years prior to his arrest, Castillo reportedly lived with his step-mother and sister in Manhattan, New York. Previously, Castillo apparently lived in the Bronx.
Castillo reported no physical or psychological issues or past significant hospitalizations. Castillo does not appear to have any substance abuse issues, although he apparently experimented with marijuana when he was a teenager.
Castillo has reported no significant past employment. Apparently, he occasionally worked selling clothes and glasses from carts in the streets. At the time of his arrest, he was unemployed and reportedly supported by his step-mother.
Castillo appears to have no assets or outstanding liabilities. He does not appear to have ever filed a federal income tax return.
The Offense Conduct
According to information received from the government, in April 2003, FBI agents received information from a confidential informant that a man subsequently identified as Castillo was using an apartment located at 1365 Saint Nicholas Avenue in Manhattan, New York ("the Apartment") to store and sell crack cocaine.
On April 24, 2003, FBI agents executed a search warrant on the Apartment that was issued by the Honorable Theodore H. Katz of this district. During the ensuing search, FBI agents found, among other things, the following: more than 1.6 kilograms of a substance that field-tested positive for the presence of crack cocaine; approximately 5.7 kilograms of a powdery substance that tested positive for the presence of cocaine; two small scales; strainers; a notebook containing records of transactions; numerous plastic baggies, and two key cards from Best Western Hotel.
Castillo was arrested on June 9, 2003. In a post-arrest statement, Castillo admitted: (1) that he had been selling drugs for approximately 18 months at the time of his arrest, (2) that his main job was to negotiate prices for kilogram quantities of cocaine, (3) that he had been negotiating such prices for approximately 3.5 months, (4) that during that time, he had negotiated the price for the purchase of approximately one kilogram of cocaine per week, and (5) that he was in the Apartment on April 21, 2003, and he was in possession of one kilogram of cocaine at that time.
During the course of his plea allocution, Castillo stated that 5 kilograms of cocaine and/or cocaine were involved in his agreement with others to distribute controlled substances. Castillo also stated that on April 24, 2003, he possessed with intent to distribute 1.5 kilograms of crack. Finally, Castillo stated that on April 24, 2003, he possessed with intent to distribute 5 kilograms of cocaine.
Relevant Statutory Provisions
The term of imprisonment for each count of the indictment is 10 years to life. See 21 U.S.C. §§ 846; 841(a)(1), 841(b) (1) (A).
For each count of the indictment, a term of supervised release of five years is required, and the maximum term of such supervised release is life. See id. However, if the criteria listed in 18 U.S.C. § 3553(f) are met, the term of supervised release would be five years. See 18 U.S.C. § 3583(b) (2). Multiple terms of supervised release are served concurrently with each other. See 18 U.S.C. § 3624(e).
Probation is precluded by statute. See 21 U.S.C. §§ 846; 841(a) (1) and 841(b) (1) (A).
A maximum fine of $4 million for each count of the indictment is authorized. See id. Furthermore, a special assessment of $300 is mandatory. See 18 U.S.C. § 3013.
Pursuant to the Violent Crime Control and Law Enforcement Act of 1994, for offenses committed after September 13, 1994, the Court shall require that all offenders on probation, parole, or supervised release 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).
Pursuant to the agreement of the parties, and based on its findings that the relevant statutory criteria has 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 5, 2003 edition of the United States Sentencing Commission Guidelines Manual ("the Guidelines") has been used in this case for calculation purposes. See Guidelines § 1B1.11.
Offense Level
For the purposes of calculating the offense level, counts one, two, and three are grouped together. See § 3D1.2(d). Castillo allocuted to offenses involving 5,000 grams of cocaine (which is equivalent to 1,000 kilograms of marijuana) and 1,500 grams of crack (which is equivalent to 30,000 kilograms of marijuana).See § 2D1.1, Application Note 10 (including Drug Equivalency Tables). Taken together, these amounts are equivalent to 31,000 kilograms of marijuana. Id. Accordingly, the base offense level is 38. See § 2D1.1(c)(1).
Castillo meets the criteria for a "safety value reduction," as set forth in subdivisions (1) — (5) of § 5C1.2. Accordingly, the base offense level is decreased by 2 levels. See § 2D1.1(b)(6).
Based on the foregoing, Castillo's adjusted offense level is 36.
Based solely on the Castillo's plea allocution, he has shown recognition of responsibility for the offense. Because of his timely notification of his intention to plead guilty, thus allowing the government to allocate its resources more efficiently, and because the aforementioned base offense level is 16 or greater, the offense level is reduced 3 levels. See § 3E1.1(a), (b).
The resulting total offense level is 33.
Criminal History
Castillo has no known criminal convictions. Therefore, he has zero criminal history points and a criminal history category of I.
Sentence Recommended Under the Guidelines
According to the Guidelines Sentencing Table, based on a total offense level of 33 and a criminal history category of I, the recommended range for imprisonment is 135 to 168 months. See Ch. 5, Pt. A.
A term of probation is not recommended under the Guidelines because Castillo's offenses are ones for which probation has been expressly precluded by statute. See § 5B1.1(b)(2).
Since the criteria listed in § 5C1.2 have been satisfied, the recommended term of supervised release is 3-5 years for each of the counts to which Castillo has allocuted. See § 5D1.2(a)(1).
Because the applicable guideline range is in Zone D of the Sentencing Table, Castillo is not recommended for probation.See § 5B1.1, Application Note 2.
The recommended fine range for Castillo's offenses is $17,500 to $12 million. See § 5E1.2(c)(4)(A). The Guidelines advise that 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.See § 5E1.2(d)(7). The most recent advisory from the Administrative Office of the U.S. Courts suggests that a monthly cost of $1,910.17 be used for imprisonment, a monthly cost of $217.18 for supervision, and a monthly cost of $1,186.25 for community confinement.
The Remaining 18 U.S.C. § 3553(a) Factors
Having engaged in the Guidelines analysis, the Court has also given due consideration to the remaining factors identified in 18 U.S.C. § 3553(a).
Pursuant to 18 U.S.C. § 3553(a) (6), imposition of a non-Guidelines sentence is warranted. Since Booker, a number of courts, concerned by the disparity between crack and cocaine powder sentences imposed under the Guidelines, have imposed non-Guidelines sentences in cases involving crack. See, e.g., Simon v. U.S., 361 F. Supp. 2d 35 (E.D.N.Y. 2005); United States v. Smith, 359 F. Supp. 2d 771 (E.D. Wis. 2005). As stated by the Smith court:
The sentence called for by the guidelines was driven largely by the weight of the drugs recovered from defendant's house. And, because defendant possessed crack cocaine, the sentence was greatly enhanced. As is now notorious, the guidelines create a 100 to 1 ratio between crack and powder cocaine. In other words, the guidelines treat possession of 50 grams of crack cocaine the same as they treat possession of 5000 grams (5 kilograms) of powder cocaine. See U.S.S.G. § 2D1.1(c) (4). Thus, in the present case, the 69.9 grams of crack that defendant possessed converted to 1399.80 kilograms of THC, while the 653.19 grams of powder converted to just 130.63 kilograms of THC.
Courts, commentators and the Sentencing Commission have long criticized this disparity, which lacks persuasive penological or scientific justification, and creates a racially disparate impact in federal sentencing.Smith, 359 F. Supp. 2d at 777 (quoting, inter alia, United States v. Dumas, 64 F.3d 1427, 1432 (9th Cir. 1995) (Boochever, J., concurring) and United States v. Willis, 967 F.2d 1220, 1226 (8th Cir. 1992).
Based on recent proposals by the Sentencing Commission, theSmith court employed a 20:1 ratio between crack and powder cocaine to determine the appropriate sentence. Use of this 20:1 ratio in the present case will mitigate the disparity between this sentence and one imposed on a defendant that engaged in substantially similar conduct that involved powder cocaine rather than crack. Based on this 20:1 ratio, Castillo's offenses are determined to have involved an amount of crack equivalent to 6000 kilograms of marijuana, and his offenses involved a total amount of narcotics equivalent to 7,000 kilograms of marijuana. Accordingly, Castillo's base offense level is deemed to be 34, and the total offense level is 29. See § 2D1.1(c) (1).
Based on a total offense level of 29 and a criminal history category of I, the Guidelines recommend a term of incarceration of between 87 and 108 months.
The Sentence
As described above a non-Guidelines term of incarceration is warranted. Therefore, an 87-month term of incarceration is hereby imposed for each count of the indictment. These terms of incarceration will run concurrently. Castillo has been detained without bail since his arrest. Therefore, he is not a candidate for voluntary surrender. See 18 U.S.C. § 3143(a) (2).
A 3-year term of supervised release shall be imposed for each count of the indictment. Within 72 hours of his release from custody, Castillo shall report to the nearest United States Probation Office. It is recommended that he be supervised by the district of his residence.
As mandatory conditions of his supervised release, Castillo 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; (5) submit to one drug test within 15 days of placement on probation or supervised release and at least two unscheduled drug tests thereafter, as directed by the probation officer; and (6) 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 special condition that Castillo shall obey the immigration laws and comply with the directives of immigration authorities.
Based on the Court's analysis of Castillo's financial resources, no fine shall be imposed in this case. However, Castillo shall pay to the United States a mandatory special assessment of $300, which shall be due immediately.
The terms of this sentence are subject to modification at the sentencing hearing set for May 17, 2005.
It is so ordered.