Opinion
08 Cr. 1244-08 (RWS).
April 7, 2010
SENTENCING OPINION
On November 19, 2009, Norma Dixon, a/k/a "Joy," ("Dixon" or "Defendant") pleaded guilty to one count of distribution and possession with intent to distribute a detectable amount of cocaine, in violation of 21 U.S.C. § 841(b)(1)(C), and one count of conspiracy to import into the United States from a place outside thereof a detectable amount of cocaine, in violation of 21 U.S.C. § 960(b)(3). For the reasons set forth below, Dixon will be sentenced to 46 months' imprisonment to be followed by three years' supervised release. Dixon will also be required to pay a special assessment of $200.
Prior Proceedings
On November 19, 2009, Information 08 CR 1244 (RWS) was filed in the Southern District of New York. Count 1 charges that from at least 2000 through 2008, in the Southern District of New York and elsewhere, Dixon and others known and unknown would and did distribute and possess with intent to distribute a detectable amount of cocaine, in violation of 21 U.S.C. § 841(b)(1)(C). Count 2 charges that from at least 2000 through 2008, in the Southern District of New York and elsewhere, Dixon and others known and unknown conspired to import into the United States from a place outside thereof a detectable amount of cocaine, in violation of 21 U.S.C. § 960(b)(3).
On November 19, 2009, Dixon appeared before the Honorable Michael H. Dolinger in the Southern District of New York and allocated to Counts 1 and 2 as charged pursuant to a plea agreement.
On March 30, 2010, the Court received a letter from counsel for Dixon requesting the imposition of a sentence below the minimum set forth in the advisory Sentencing Guidelines (the "Guidelines") established by the United States Sentencing Commission. Enclosed with the letter were letters of support from Dixon's family and friends.
Defendant's sentencing is currently scheduled for April 12, 2010.
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 Guidelines. 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.
In light of the Court's statutory responsibility "to `impose a sentence sufficient, but not greater than necessary' to accomplish the goals of sentencing," Kimbrough v. United States, 552 U.S. 85, 102 (2007) (quoting 18 U.S.C. § 3553(a)), and having considered the Guidelines and all of the factors set forth in § 3553(a), it is determined that a Guidelines sentence is warranted in the instant case.
The Defendant
The Court adopts the facts set forth in the Presentence Investigation Report ("PSR") with respect to Dixon's personal and family history.
The Offense Conduct
The following description draws from the PSR. The specific facts of the underlying conduct are adopted as set forth in that report.
Bureau of Immigration and Customs Enforcement ("ICE") agents conducted an investigation of individuals who, among other things, smuggled large quantities of cocaine and marijuana from Jamaica to the United States via commercial airlines, using two methods for concealing the narcotics.
In one method, co-conspirators would stash multiple kilogram quantities of narcotics beneath the toilet of a commercial flight bound for the United States. After the flight landed in the United States and cleared customs, a co-conspirator would board the flight for the next leg of the plane's trip. While on that flight, the co-conspirator would walk to the bathroom, remove the hidden narcotics, and conceal them either on his or her person or in his or her carry-on baggage. Because the plane had already cleared customs, the passenger would not be searched upon exiting the plane with the narcotics, and the co-conspirator would deliver the narcotics to other co-conspirators for distribution within the United States.
In the second method, co-conspirators would stash multiple kilogram quantities of narcotics in a cargo panel of a plane departing Jamaica bound for the United States. Then a co-conspirator who worked at a United States airport would remove the narcotics after the plane landed and deliver the narcotics to other co-conspirators for distribution within the United States. The co-conspirators would deliver narcotics to another co-conspirator not named as a defendant herein, CC-3, who worked at Montego Bay Airport in Jamaica, and CC-3 would stash the narcotics on airplanes bound for the United States. Once in the United States, the narcotics would be removed from airplanes by CC-4, who worked at a United States airport, and couriers, including CC-5, who would board the planes and physically remove the narcotics. Once removed from the planes, the narcotics would then be distributed to CC-6, CC-7, and CC-8, among others, for resale within the United States.
Co-conspirators not named as defendants in this action are denoted with the label "CC" and corresponding numbers to identify them as participants in the conspiracy.
According to a cooperating witness ("CW-1") and a paid confidential source ("CS-1") working with ICE agents, Dixon assisted the individuals described above and others in their efforts to smuggle cocaine into the United States and/or to distribute it. Specifically, ICE agents learned the following from both CW-1 and CS-1.
From the late 1990s through 2002, Dixon worked with CC-6 to smuggle cocaine from Jamaica to the United States and Europe. Dixon and CC-6 arranged to have couriers board commercial airlines in Jamaica carrying bottles containing cocaine in liquid form, disguised as Jamaican rum. Those couriers would fly to the United States and/or Europe, where they would distribute the cocaine to Dixon and CC-6's associates.
According to CW-1, in 2002, Dixon personally flew on one such flight from Jamaica to Europe to monitor one of Dixon's and CC-6's couriers. However, the courier and Dixon were arrested when it was discovered that the courier was carrying cocaine. ICE agents have confirmed, through British law enforcement, that Dixon was arrested in England in 2002 for importing narcotics.
In 2005, Dixon returned to the United States and resumed her participation in narcotics distribution. On at least one occasion, Dixon traveled to Jamaica and met with CC-1, among others, to discuss arranging the transportation of cocaine from Jamaica to the United States.
In addition, Dixon agreed with CC-7 to ship quantities of marijuana from Arizona to New York, through a contact she had with the shipping company, DHL.
On February 6, 2008, CW-1 informed ICE agents that he/she had received a telephone call from Dixon, in which Dixon indicated that she had associates located in Jamaica in possession of cocaine. Dixon asked CW-1 if he/she could assist her in making arrangements, through CC-1, to have the cocaine placed onto commercial airplanes bound for the United States, so that she could receive and distribute it in and around New York City.
On February 6, 2008, at the request of ICE agents, CW-1 placed a consensually-monitored and recorded phone call to Dixon. During that call, CW-1 and Dixon discussed Dixon's desire to ship approximately five kilograms of cocaine and an undetermined quantity of marijuana from Jamaica to the United States. Dixon and CW-1 also discussed seeking the assistance of CC-1 and CC-3. During the same call, CW-1 requested that Dixon keep him/her informed as to the status of such efforts, and suggested that they would have to coordinate with CC-1 and CC-3, because CC-3 would not be interested in shipping marijuana and would not stash the cocaine for anyone other than CC-1.
On February 7, 2008, at the request of the ICE agents, CW-1 met with Dixon in the Bronx to continue discussing Dixon's request for CW-1 to assist in smuggling narcotics into the United States. This meeting was monitored and recorded. During the meeting, Dixon and CW-1 discussed further the possibility of importing cocaine and marijuana from Jamaica. Dixon said that CC-9 and CC-3 would assist, but that CC-9 didn't want CC-1 to participate. In the middle of the meeting, Dixon then received a call on her mobile phone from CC-9 and passed the phone to CW-1, so CW-1 and CC-9 could discuss the proposed deal. CW-1 then convinced CC-9 to participate in the narcotics shipment and distribution with both CC-1 and CC-3. After getting off the phone with CC-9, CW-1 and Dixon continued to discuss the planned narcotics shipment. During this exchange, Dixon explained that CW-1 should deliver all of the cocaine to her, and commented that she did not want to risk something going wrong, because the people she was dealing with would not forgive her.
Dixon was arrested by ICE agents on February 18, 2009. The government has advised that Dixon is being held accountable for between 500 grams and 2 kilograms of cocaine.
The Relevant Statutory Provisions
Pursuant to 21 U.S.C. § 841(b)(1)(C) and 21 U.S.C. § 963, the maximum term of imprisonment is 20 years.
If a term of imprisonment is imposed, a term of supervised release of not less than three years is required, pursuant to 21 U.S.C. § 841(b)(1)(C) and 21 U.S.C. § 963.
Defendant is eligible for not less than one nor more than five years' probation, on each count, pursuant to 18 U.S.C. § 3561(c)(1).
The maximum fine that may be imposed is $1,000,000, pursuant to 21 U.S.C. § 841(b)(1)(C) and 21 U.S.C. § 963. A special assessment of $100 per count is mandatory, pursuant to 18 U.S.C. § 3013.
Pursuant to 18 U.S.C. § 1963(a)(1), (a)(2), and (a)(3), all property, real and personal, involved in the offense or traceable to such property shall be forfeited to the United States.
The Guidelines
The November 1, 2009 edition of the United States Sentencing Commission Guidelines Manual has been used in this case for calculation purposes, pursuant to § 1B1.11(a). Pursuant to a written plea agreement, the parties stipulate to the following with respect to Defendant's applicable offense level, criminal history, recognition of responsibility, and term of imprisonment:
Pursuant to § 3D1.2(b), Counts 1 and 2 of the Information are grouped together. The guideline for the violations of 21 U.S.C. § 841(b)(1)(C) and 21 U.S.C. § 963 is found in § 2D1.1. Defendant distributed and possessed with intent to distribute, and conspired to import into the United States, more than 500 grams but less than 2 kilograms of cocaine. The base offense level is therefore 26, pursuant to the Drug Quantity Table set forth in § 2D1.1(c)(7).
Based on her plea allocution, Defendant has shown recognition of her responsibility for the offense. Pursuant to § 3E1.1(a), the offense is reduced two levels. Furthermore, an additional one-level reduction is warranted, pursuant to § 3E1.1(b), because Defendant gave timely notice of her intention to enter a plea of guilty, thereby permitting the Government to avoid preparing for trial and permitting the Court to allocate its resources efficiently.
Accordingly, the applicable offense level is 23.
Defendant has no prior criminal convictions. Therefore she has zero criminal history points and her Criminal History Category is I.
Based on a total offense level of 23 and a Criminal History Category of I, the Guidelines range for imprisonment is 46 to 57 months.
The Guidelines range for a term of supervised release is three years, the minimum required by statute, pursuant to § 5D1.2(c).
Because the applicable Guidelines range is in Zone D of the Sentencing Table, Defendant is not eligible for probation, pursuant to § 5B1.1, Application Note 2.
The fine range for the instant offenses is $10,000 to $1,000,000, on each count, pursuant to § 5E1.2(c)(3)(A) and (c)(4). Subject to 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 pursuant to § 5E1.2(d)(7). The most recent advisory from the Administrative Office of the United States Courts suggests a monthly cost of $2,157.88 to be used for imprisonment, a monthly cost of $311.94 for supervision, and a monthly cost of $1,990.13 for community confinement.
The Remaining Factors of 18 U.S.C. § 3553(a)
Having engaged in the Guidelines 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 inCrosby, 397 F.3d 103. Upon consideration of all of the factors, including Dixon's medical and psychological history, it is concluded that the imposition of a Guidelines sentence is warranted.
The Sentence
For the instant offense, Dixon will be sentenced to 46 months' imprisonment and 3 years' supervised release.
Dixon is directed to report to the nearest United States Probation Office within seventy-two hours of release to commence her term of supervised release. It is recommended that Dixon be supervised by the district of her residence.
As mandatory conditions of her supervised release, Dixon 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. The mandatory drug testing condition is suspended due to imposition of a special condition requiring drug treatment and testing.
Furthermore, the standard conditions of supervision (1-13), set forth in the judgment, shall be imposed with the additional special conditions:
(1) Defendant shall provide the probation officer with access to any requested financial information.
(2) Defendant shall not incur new credit charges or open additional lines of credit without the approval of the probation officer unless Defendant is in compliance with the installment payment schedule.
(3) Defendant will participate in a program approved by the United States Probation Office, which program may include testing to determine whether Defendant has reverted to using drugs or alcohol. The Court authorizes the release of available drug treatment evaluations and reports to the substance abuse treatment provider, as approved by the probation officer. Defendant will be required to contribute to the costs of services rendered (co-payment), in an amount determined by the probation officer, based on ability to pay or availability of third-party payment.
(4) Defendant will participate in a program approved by the United States Probation Office, for her addiction to gambling.
(5) Defendant shall submit her person, residence, place of business, vehicle, or any other premises under her 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 the release may be found. The search must be conducted at a reasonable time and in a reasonable manner. Failure to submit to a search may be grounds for revocation. Defendant shall inform any other residents that the premises may be subject to search pursuant to this condition.
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, and 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.
Defendant shall forfeit all property, real and personal, involved in or traceable to the offenses of conviction. This property has yet to be determined.
The terms of this sentence are subject to modification at the sentencing hearing scheduled for April 12, 2010.
It is so ordered.