Opinion
01 Cr. 1046-01 (RWS).
September 6, 2006
SENTENCING OPINION
On October 14, 2005, defendant Jose De La Cruz ("De La Cruz") appeared before the Honorable Douglas F. Eaton of this District and pled guilty to one count of conspiracy to distribute and possess with intent to distribute cocaine. For the reasons set forth below, De La Cruz will be sentenced to 120 months' imprisonment, to be followed by a five-year term of supervised release. De La Cruz also will be required to pay a special assessment of $100.
Prior Proceedings
De La Cruz was arrested on September 4, 2004, and has remained in custody without bail since that time. An indictment was filed in the Southern District of New York on November 6, 2001, charging that from 1997 through August 2000, De La Cruz and others known and unknown conspired in violation of 21 U.S.C. § 846 to distribute and possess with intent to distribute five kilograms and more of cocaine in violation of 21 U.S.C. §§ 812, 841(a) (1), and 841(b) (1) (A). On October 14, 2005, De La Cruz appeared before the Honorable Douglas F. Eaton of this District and allocuted to his criminal conduct as charged in the indictment, in accordance with a plea agreement. Defendant's sentencing is scheduled for September 21, 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 De La Cruz's personal and family history.
The Offense Conduct
De La Cruz was indicted for his role in operating an organization based in New York City that distributed multiple kilograms of cocaine in personal-use units (the "Organization"). Customers placed orders for cocaine by paging an electronic paging device (i.e., a beeper) associated with the Organization and entering their call-back number. A member of the Organization returned the customer's page, often using cellphones subscribed in fraudulent names, including, at times, two cellphones monitored by the Drug Enforcement Agency ("DEA") pursuant to court orders. When the customer placed an order for cocaine, the Organization sent a driver to deliver the cocaine at a prearranged location.
De La Cruz began working as a driver for the Organization in 1997. In 1998, he became a dispatcher, instructing the Organization's drivers to deliver cocaine to customers at various locations. In the summer of 1998, Jose Fernandez ("Fernandez"), the head of the Organization, agreed to allow De La Cruz and another co-conspirator ("CC-1") to operate the Organization in return for payments of approximately $12,000 per week. De La Cruz and CC-1 operated the Organization for approximately six to eight months. In January 1999, De La Cruz and CC-1 agreed to return control of the Organization to Fernandez in exchange for payments of approximately $3,000 per week. In January 2000, nine members of the Organization, including Fernandez, were arrested.
A confidential informant ("CI") who had been a customer of the Organization advised DEA agents that on July 31, 2000, the CI encountered De La Cruz in Manhattan. De La Cruz told the CI that De La Cruz had re-started the cocaine delivery business but, because of the arrests that had been made, was only selling cocaine to longtime customers whom he could trust. De La Cruz gave the CI his pager number.
On August 1, 2000, at the direction of the DEA, the CI paged De La Cruz. When De La Cruz called the CI, the CI ordered three grams of cocaine. They arranged to meet later that afternoon at the corner of Hudson and 10th Streets. DEA agents were conducting surveillance in that vicinity in anticipation of the meeting. At approximately 4:15 p.m., responding to a page by the CI, De La Cruz called the CI and indicated that there were too many law enforcement officers in the area. De La Cruz told the CI to meet him at the corner of 19th Street and 10th Avenue.
At approximately 4:45 p.m., the CI met De La Cruz at the corner of 19th Street and 10th Avenue. The CI advised DEA agents that he entered De La Cruz's vehicle and purchased three grams of cocaine for $150. The CI further stated that while in the vehicle he noticed a ledger on the front street containing numerous names and telephone numbers.
The DEA case agent reviewed telephone toll records for the period from July 27, 2000 to July 31, 2000, for the pager number that De La Cruz provided to the CI on July 31, 2000. Based on these records, it was learned that at least twelve of the telephone numbers used to call De La Cruz's pager during this fourday period in July 2000 had also been used to order cocaine from the Organization between November 1999 and January 2000.
De La Cruz was arrested at Newark Liberty International Airport on September 14, 2004, after having been a fugitive.
At his allocution, De La Cruz admitted responsibility for the distribution of at least fifteen but less than fifty kilograms of cocaine.
The Relevant Statutory Provisions
The mandatory minimum term of imprisonment is ten years; the maximum term of imprisonment is a term of 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.
De La Cruz is not eligible for probation because the instant offense is one for which probation has been expressly precluded by statute, pursuant to 21 U.S.C. §§ 841(b) (1) (A) and 846.
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 $200 is mandatory. 18 U.S.C. § 3013.
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.
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, De La Cruz is responsible for the trafficking of at least fifteen but less than fifty kilograms of cocaine. As specified in the Drug Quantity Table under section 2D1.1(c) (1), the trafficking of this amount of cocaine results in a base offense level of 34.
Based on his plea allocution, De La Cruz has shown recognition of responsibility for the offense. Pursuant to section 3E1.1(a), the offense is reduced two levels. Further, because De La Cruz'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. § 3E1.1(b).
The defendant's resulting adjusted offense level is 31.
De La Cruz has no known criminal convictions. Thus, De La Cruz has a Criminal History Category of I.
Based on a total offense level of 31 and a Criminal History Category of I, the Guidelines range for imprisonment is 108 to 135 months. However, because the statutory mandatory minimum sentence is 120 months, 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, the minimum required by statute, pursuant to section 5D1.2(b).
A term of probation is not authorized, pursuant to section 5B1.1(b) (2).
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.
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. In light of all of the factors enumerated in section 3553(a), it is hereby determined that a Guidelines sentence is warranted.
The Sentence
For the instant offense, De La Cruz is hereby sentenced to 120 months' imprisonment, followed by a five-year term of supervised release.
Since De La Cruz has been detained without bail since his arrest, he is not a candidate for voluntary surrender. 18 U.S.C. § 3143 (a) (2). De La Cruz 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, De La Cruz 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 due to the imposition of a special condition requiring drug treatment and testing.
The standard conditions of supervision (1-13) shall be imposed, along with the following special conditions:
(1) De La Cruz will 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 Court authorizes the release of available drug treatment evaluations and reports to the substance abuse provider, as approved by the Probation Officer. De La Cruz shall be required to contribute to the costs of services rendered, in an amount determined by the probation officer, based on ability to pay or availability of third-party payment.
(2) De La Cruz also shall cooperate with officials of the Bureau of Immigration and Customs Enforcement and comply with the immigration laws of this country.
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 September 21, 2006.
It is so ordered.