SENTENCING OPINION

ROBERT SWEET, District Judge

Defendant Miguel Andres Enriquez, also known as Miguel Ortiz, (hereinafter "Enriquez"), pleaded guilty on June 26, 2003 to the following: (1) conspiracy to distribute and possess with intent to distribute cocaine and heroin, in violation of 21 U.S.C. 846 (Count 1); (2) possession of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. 924(c) (Count 2); and (3) illegal reentry, in violation of 8 U.S.C. 1326(a), (b)(2) (Count 3). For the reasons set forth below, Enriquez will be sentenced to 300 months of imprisonment, to be followed by a ten-year term of supervised release, subject to the sentencing hearing now set for November 18, 2005. A special assessment fee of $300 is mandatory and will be due immediately. Prior Proceedings

On November 6, 2002, Enriquez was arrested by law enforcement after being observed facilitating and participating in a drug sale. The government filed a complaint on November 7, 2002 and subsequently filed an indictment on December 5, 2002. Enriquez entered a guilty plea on June 26, 2003, which this Court accepted on July 9, 2003, and currently Enriquez is scheduled for sentencing on November 18, 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") 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.

The Defendant

The defendant stated that he was born on January 16, 1968, in the Dominican Republic. He is the second of four children born to the union of Pascual Henriquez, age 58, a factory owner, and Ramona Cabrera, age 54, a homemaker. The defendant stated that his parents remain together and reside in the Dominican Republic.

The defendant advised that he had a difficult childhood. His father was very strict and believed in corporal punishment. The defendant stated that if he or his siblings broke his father's rules, they would be beaten, often severely, a with a belt.

Enriquez stated that at age 18, his father kicked him out of the home. It was at that time the defendant came to the United States seeking economic opportunities. According to government records, the defendant entered the United States under the name Miguel Andres Henriquez on September 1, 1986. The defendant was deported on May 13, 1993 to the Dominican Republic, and he subsequently re-entered the United States illegally in September or October of 2000.

The defendant advised that when he first came to New York, he settled in Brooklyn and lived in a small apartment with three other families sleeping on the floor. The defendant advised that during that time he worked in a local grocery store. According to the defendant, it was during that time that he was introduced to the drug business.

He advised that he married Wanda Tavares on November 6, 1998 in the Dominican Republic. Ms. Tavares is a supervisor with Jet Blue Airline and she is also an architect. From their marriage they have three children: Estafania, age 16, Chelsea, age 12 and Andres, age 5. The children live in the Dominican Republic with their mother.

Enriquez stated that he used marijuana beginning at the age of 19, and that he last used marijuana in 1987. The defendant also advised that he used cocaine for one year beginning at age 19. The defendant stated that he completed a drug treatment program in the Bronx while he was on parole; however, he could not recall the name of the program.

The defendant submitted a written financial statement which indicated he has no assets or liabilities and a net worth of zero.

The Offense Conduct

The undersigned, having reviewed the Presentence Investigation Report (hereinafter "PSR") prepared by the United States Probation Office, relies on certain of the facts as set forth therein.

On November 5, 2002, an individual, who will be referred to as co-conspirator 1 (hereinafter, "CC1"), was arrested in Manhattan in possession of a duffle bag that contained approximately 10 kilograms of cocaine. Prior to his arrest, CC1 was seen by agents of the FBI entering a Chevrolet Malibu (hereinafter, the "Malibu").

After advising CC1 of his constitutional rights, CC1 voluntarily made a statement in which he said that he had picked up the 10 kilograms of cocaine from an individual known as "Miami."

After his arrest, on November 5, 2002, CC1 made a series of telephone calls to the person he knew as "Miami." These calls were recorded. During these calls, "Miami" told CC1, in substance, that he would deliver three kilograms of heroin to CC1 the next day.

On November 6, 2002, CC1 had additional telephone conversations with "Miami." These calls were also recorded. During these telephone calls, "Miami" told CC1 that he could only deliver two kilograms of heroin to CC1 because he had already distributed one kilogram to someone else. During these telephone calls, "Miami" and CC1 made arrangements to meet later in the day at a restaurant in the vicinity of Second Avenue and 66th Street in Manhattan (hereinafter, the "Restaurant").

Later on November 6, 2002, CC1 went to the Restaurant to meet with "Miami." While he was there, an individual later identified as Miguel Andres Enriquez, a/k/a "Miguel Ortiz," a/k/a "Miami," arrived and met with CC1. According to CC1, during this meeting Enriquez placed a telephone call to another individual. After this call, Enriquez told CC1 that the heroin was there and that CC1 could go get it.

During this time, FBI agents conducting surveillance saw the Malibu pull up and park in the vicinity of Second Avenue and 67th Street. CC1 left the meeting at the Restaurant and walked towards the Malibu. As he did so, the headlights on the Malibu flashed several times. CC1 entered the Malibu and met with an individual later identified as Antonio Santana. According to CC1, Santana was the same individual with whom he had met the day before, when he picked up the 10 kilograms of cocaine.

After talking to Santana, CC1 exited the car and walked around to the trunk where he removed a bag (hereinafter, the "Bag"). After he removed the Bag, agents moved in and placed Santana under arrest. At approximately the same time, agents placed Enriquez under arrest as he was leaving the Restaurant and entering his car.

Field tests conducted on the substance found inside the Bag confirmed that the substance had a gross weight of approximately two kilograms and that it contained heroin.

Additional Offenses

In addition to the above-described conduct, Enriquez has admitted his participation in brokering many large cocaine deals and several smaller heroin deals with suppliers stationed in both the Dominican Republic and in the United States. Moreover, he has advised that he possessed a firearm that was used to further the goals of the drug conspiracy. Finally, he has conceded that he re-entered the United States illegally in September or October 2000, after being deported in 1993 following his conviction for Attempted Criminal Sale of a Controlled Substance in the First Degree.

The Relevant Statutory Provisions

The statutory minimum term of imprisonment for Count One of the indictment is twenty years and the maximum term is life pursuant to 21 U.S.C. §§ 846 and 841 (b) (1) (A) and enhanced penalties pursuant to 21 U.S.C. § 851. The statutory minimum term of imprisonment for Count Two is five years, and the maximum term is life, to run consecutive to any other term imposed pursuant to 18 U.S.C. § 924(c). The statutory maximum term of imprisonment for Count Three is twenty years pursuant to 8 U.S.C. §§ 1326 (a) and (b) (2).

If a term of imprisonment is imposed under Count One, the Court subsequently shall impose a term of supervised release of at least ten years pursuant to 21 U.S.C. §§ 846 and 851. If a term of imprisonment is imposed under Count Two, the Court subsequently shall impose a term of supervised release of not more than five years pursuant to 18 U.S.C. § 3583(b)(1). And, if a term of imprisonment is imposed under Count Three, the Court subsequently shall impose a term of supervised release of not more than three years pursuant to 18 U.S.C. § 3583(b)(2). Multiple terms of supervised release run concurrently pursuant to 18 U.S.C. § 3624(e).

Enriquez is not eligible for probation because the charged offenses for Counts One and Two are ones for which probation has been expressly precluded by statute pursuant to 18 U.S.C. § 3561 (a) (2), 21 U.S.C. § 846, and 18 U.S.C. § 924(c).

The statutory maximum fine is $8 million, pursuant to 21 U.S.C. §§ 846 and 851. A special assessment of $100 is required on each count, totaling $300. See 18 U.S.C. § 3013.

Since this is Enriquez's second criminal conviction for distribution of a controlled substance, he may be declared ineligible for any or all federal benefits, as determined by the Court pursuant to 21 U.S.C. § 862 (a) (1) (B). Federal benefit is defined to mean "`any grant, contract, loan, professional license, or commercial license provided by an agency of the United States or by appropriated funds of the United States' but `does not include any retirement, welfare, Social Security, health, disability, veterans benefit, public housing, or other similar benefit, or any other benefit for which payments or services are required for eligibility.'" See 21 U.S.C. § 862(d).

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 Guidelines

The November 1, 2004 edition of the United States Sentencing Commission, Guidelines Manual ("U.S.S.G.") has been used in this case for calculation purposes, in accordance with U.S.S.G. § 1B1.11 (b) (1).

For Count One, which charges conspiracy to distribute and possess with intent to distribute cocaine and heroin, the guideline for a violation of 21 U.S.C. §§ 841 (b) (1) (A) and 846 is found in U.S.S.G. § 2D1.1, which specifies that the base offense level is set in accordance with the Drug Quantity Table under U.S.S.G. § 2D1.1 (c) (11). The PSR indicates that Enriquez should be held accountable for more than 150 kilograms of cocaine and approximately 20 kilograms of heroin. The different drugs are converted into their marijuana equivalents. The total is 50,000 kilograms of marijuana. In light of this latter amount, and pursuant to the Drug Quantity Table, the base offense level is 38.

For Count Two, which charges possession of a firearm during and in relation to a drug trafficking crime in violation of 8 U.S.C. § 924(c), a guideline computation is not included since the guideline sentence for this count is a mandatory minimum term required by statute pursuant to U.S.S.G. § 2K2.4 (b).

For Count Three, which charges illegal re-entry, the guideline violation of 8 U.S.C. §§ 1326(a) and (b) (2) is found in U.S.S.G. § 2L1.2(a) and warrants a base offense level of 8. As Enriquez had been deported previously after a conviction for a drug trafficking offense for which the sentence imposed exceeded 13 months, a 16 level increase is required under U.S.S.G. § 2L1.2(b) (1) (A). As such, the total offense level for Count Three is 24.

It is noted that pursuant to the grouping rules set forth in U.S.S.G § 3D1.1, Counts One and Three cannot be grouped, and, instead, each count will form its own group.

According to the multiple count adjustment calculated pursuant to U.S.S.G. § 3D1.4, the combined adjusted offense level for Counts One and Three is 38. A three level downward departure is applied under U.S.S.G. §§ 3E.1.1(a) and (b), based on Enriquez's plea allocution and his timely notification of his intention to plead guilty which allowed the government to allocate its resources more efficiently. Thus, the total offense level is 35.

Enriquez has three criminal history points, pursuant to U.S.S.G. §§ 4A1.1(a) and 4A1.2 (e) (1), arising out of his prior narcotics conviction in 1987 for the Attempted Criminal Sale of a Controlled Substance in the First Degree. He was released on lifetime parole on September 24, 1991 and subsequently deported to the Dominican Republic on May 13, 1993.

At the time the instant offense was committed, Enriquez was on parole. Pursuant to U.S.S.G. § 4A1.1 (d), two criminal history points are added. As such, Enriquez totals five criminal history points and carries a Criminal History Category of III.

Based on a total offense level of 35 and a Criminal History Category of III, the guideline range for imprisonment 210 to 262 months. However, pursuant to U.S.S.G. § 5G1.1, the sentence imposed (absent a departure from the applicable range) shall not be less than any statutorily required minimum sentence. In this instance, the statutory minimum is 20 years, or 240 months. As such, the guideline range becomes 240 to 262 months, to be followed by a mandatory minimum and consecutive term of 5 years (or 60 months) as required by Count Two.

For Count One, the guideline range for a term of supervised release is ten years, the minimum required by statute, pursuant to U.S.S.G. § 5D1.2(b). For Count Two, the guideline range for a term of supervised release is at least three years but not more than five years, pursuant to U.S.S.G. § 5D1.2(a) (1). For Count Three, the guideline range for a term of supervised release is at least two years but not more than three years, pursuant to U.S.S.G. § 5D1.2(a) (2). Supervised release is required if the Court imposes a term of imprisonment of more than one year or when required by statute pursuant to U.S.S.G. § 5D1.1(a).

Because the applicable guideline range is in Zone D of the Sentencing Table, Enriquez is not eligible for probation pursuant to U.S.S.G. § 5B1.1, application note #2.

The fine range for the instant offense is from $15,000 to $8,000,000 pursuant to U.S.S.G. §§ 5E1.2(c) (3) (A) and (c) (4) (A).

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 pursuant to U.S.S.G. § 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 U.S.S.G. § 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 United States v. Booker, 125 S.Ct. 738 (2005) and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2^nd Cir. 2005). In particular, section 3553 (a) (1) asks that the sentence imposed consider both "the nature and circumstances of the offense and the history and characteristics of the defendant," while section 3553 (a) (2) (A) demands that the penalty "provide just punishment for the offense" that simultaneously "afford[s] adequate deterrence to criminal conduct" as required by § 3553 (a) (2) (B). Furthermore, pursuant to § 3553 (a) (5) (A), "any pertinent policy statement issued by the Sentencing Commission" also must be considered. Taking the aforementioned factors into account, a Guideline sentence is warranted in this case, subject to the sentencing hearing scheduled for November 18, 2005.

The Sentence

For the instant offense, Enriquez will be sentenced to 300 months of imprisonment and ten years of supervised release. As Enriquez has been detained without bail since his arrest, he is not a candidate for voluntary surrender pursuant to 18 U.S.C. § 3143 (a) (2).

A special assessment fee of $300 payable to the United States is mandatory and due immediately. Because Enriquez lacks financial resources and in consideration of the factors listed in 18 U.S.C. § 3572, no fine is imposed.

As mandatory conditions of supervised release, Enriquez shall (1) abide by the standard conditions of supervision (1-13); (2) not commit another federal, state, or local crime; (3) not illegally possess a controlled substance; and (4) not possess a firearm or destructive device.

The mandatory drug testing condition is suspended due to imposition of a special condition requiring drug treatment and testing.

Enriquez shall 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 release of available drug testing evaluations and reports to the substance abuse treatment provider, as approved by the Probation Officer, is hereby authorized. Enriquez is 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.

Enriquez shall report to the nearest Probation Office within 72 hours of release from custody and shall be supervised by the district of residence.

This sentence is subject to modification at the sentencing hearing now set for November 18, 2005.

It is so ordered.