Opinion
S4 03 Cr. 1211-07 (RWS).
April 6, 2006
SENTENCING OPINION
Defendant Mercedes Eudocia ("Eudocia") has pleaded guilty to distribution and possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841 (b) (1) (B), a Class B felony. For the reasons set forth below, Eudocia is hereby sentenced to 37 months.
Prior Proceedings
Eudocia was arrested on October 7, 2003. On November 9, 2005 an indictment was filed in the Southern District of New York charging Eudocia with distribution and possession with intent to distribute approximately 28 grams of cocaine base in violation of 21 U.S.C. § 841 (b) (1) (B). On August 9, 2000, Eudocia appeared before the Honorable Debra C. Freeman and allocuted to the above charge in accordance with a plea agreement entered into with the Government. Eudocia is scheduled to be sentenced on April 6, 2006.
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 111.
The Defendant
Eudocia advised that her true name is Eudocia Mercedes and that she was born in Higuey, Dominican Republic. According to defendant, she was raised under impoverished conditions in the farming town of La Romana. The family was supported by her father, a farmer, until he died when she was sixteen years old. Despite the poverty of the family, the defendant described her childhood as very happy.
The defendant reportedly remained in the Dominican Republic until 1986, when at the age of 20, she moved to Puerto Rico. While in Puerto Rico, she became involved in a relationship with Jose De Jesus Martinez. The relationship produced two children. After remaining in Puerto Rico for eight or nine years, Eudocia then came to Yonkers, NY. The defendant reported that she fled to New York to live with her aunt because the father of her children was abusive towards her and cheated on her with many different women. She further reported that she married Martinez in New York in 1996, as he was incarcerated there, and that he was later deported to the Dominican Republic. She stated that she has had no contact with him in about ten years.
Eudocia has been incarcerated since 2003. As a result of her incarceration, her two sons have been separated due to space limitations. Her eldest son lives with Eudocia's sister Altagracia and her younger son lives with her sister Gloria. She reports that her children have had a very difficult time with her incarceration and that her eldest son has begun wandering the streets and drinking. Both children have reportedly gone to counseling.
Eudocia is a naturalized U.S. citizen as of June 23, 1999.
The defendant reports no history of mental or emotional problems. She also reports no history of illegal drug use and states that she consumes alcohol on a social basis.
According to the defendant, she completed her high school education in the Dominican Republic at the age of 18. She reports that from 2001 until her arrest, she worked at a bodega owned by her brother Matias, where she was responsible for cooking. She earned approximately $250 to $300. She reported that she also supported herself by cleaning houses, apartments, and offices, and by babysitting.
The Offense Conduct
On August 12 and 13 of 2003, the United States District Court for the Southern District of New York granted an order which authorized the interception of calls over a cellphone utilized by Johnny Ozuna ("Ozuna"). Pursuant to that order, the following transactions, which are described in Eudocia's Presentence Investigation Report ("PSR"), were apparently monitored or recorded by the government.
Eudocia telephoned Ozuna on August 16, 2003, to say that she wanted 13 grams of cocaine for a man identified as Ruben. Later on the 16th, Eudocia made an additional call to Ozuna to complain that the drugs he had given her were of poor quality. Eudocia went on to state that when she poured the cocaine into the kettle, it turned into "white water."
On August 20, 2003, Eudocia contacted Ozuna. She told him that someone she knew wanted crack for the next day, and inquired into the cost of 50 grams of crack. Ozuna replied that it might not be possible in the morning, as it was a Thursday. In a second call made by Eudocia immediately thereafter, Eudocia requested that Ozuna's associates put the drugs in a bag for her.
On August 23, 2003, Eudocia telephoned Ozuna and commented about one of Ozuna's associates, saying that she would return the following day but would not work with that associate. She also mentioned that she had a scale, and Ozuna told her to bring it to check the weight.
On August 27, 2003, Eudocia called Ozuna and advised that she and Ruben were at the pre-arranged spot. Ozuna told her to wait at the Master Barbershop on West 141st Street, and then asked her how much she wanted.
Relevant Statutory Provisions
Under the sole count, the mandatory minimum term of imprisonment that must be imposed is five years and the maximum term of imprisonment that may be imposed is forty years. See 21 U.S.C. § 841 (b) (1) (B). A term of at least four years' supervised release is required if a sentence of imprisonment is imposed. See 21 U.S.C. § 841 (b) (1) (B). The defendant is not eligible for probation because the instant offense is one for which probation has been expressly precluded. See 18 U.S.C. § 3561 (a) (2); 21 U.S.C. § 841 (b) (1) (B).
The maximum fine that may be imposed under the sole count is $2 million. A special assessment of $100 per count is mandatory.See 18 U.S.C. § 3013.
The Guidelines
The November 1, 2005 edition of the United States Sentencing Commission Guidelines Manual ("the Guidelines") has been used in this case for calculation purposes, in accordance with Guidelines § 1B1.11 (b) (1).
The guideline for a violation of 21 U.S.C. § 841 is found in U.S.S.G. § 2D1.1. The defendant's criminal activity involved the possession and distribution of at least 20 but less than 35 grams of cocaine base. The offense level specified in the Drug Quantity Table under U.S.S.G. § 2D1.1 (c) (6) sets a base offense level of 28 for this conduct.
Eudocia has shown recognition of responsibility for her offense. Therefore, because her base offense level is 16 or greater, her offense level is reduced by three levels. See § 3E1.1 (a) and (b). The resulting adjusted offense level is 25.
Eudocia meets the criteria for a "safety value reduction," as set forth in subdivisions (1) — (5) of U.S.S.G. § 5C1.2(a). Accordingly, the base offense level is decreased by an additional 2 levels. See U.S.S.G. § 2D1.1 (b) (6). Based on the foregoing, Eudocia's adjusted offense level is 23.
Criminal History
Eudocia was arrested on October 11, 2000, for committing criminal possession of a controlled substance in the Seventh Degree. This offense results in one criminal history point.
The total criminal history points attributed to Eudocia is one. According to the sentencing table at Chapter 5, Part A, a total of one criminal history point places the defendant in a Criminal History Category of I. Sentencing Options
Based on a total offense level of 23 and a Criminal History Category of I, the Guidelines range of imprisonment is 46 to 57 months.
The guideline range for a term of supervised release for the instant offense is four to five years. See §§ 5D1.2 (a) (1) and (c). Application note number 2 of Section 5D1.1 provides that a defendant who qualifies under Section 5C1.2 is not subject to any statutory minium sentence of supervised release. The guideline range for a term of supervised release is therefore three to five years, pursuant to Section 5D1.2 (a) (1).
Because the applicable guideline range is in Zone D of the Sentencing Table, the defendant is not eligible for probation, pursuant to § 5B1.1, Application Note #2.
The fine range for the instant offense is from $10,000 to $2 million. See U.S.S.G. § 5E1.2 (c) (3) (A) and (c) (4).
The Remaining Factors of Section 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 (2nd 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) (6), the Court is also mindful of "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."
As this Court has previously noted, the Sentencing Guidelines reflect an unwarranted disparity between the manner in which offenses involving crack cocaine are punished compared to those involving powder cocaine. See United States v. Stukes, No. 03 Cr. 601 (RWS), 2005 U.S. Dist. LEXIS 23394, at *4-*6 (S.D.N.Y. Oct. 12, 2005). "As is now notorious, the guidelines create a 100 to 1 ratio between crack and powder cocaine. . . . which lacks persuasive penological or scientific justification, and creates a racially disparate impact in federal sentencing." Id. (quotingUnited States v. Smith, 359 F. Supp. 2d 771, 777 (E.D. Wis. 2005)).
This disparity is highlighted by the fact that Jose Molina, another buyer who was supplied by Ozuna and who is charged in the above indictment, pleaded guilty to a cocaine conspiracy of 300 grams with a Criminal History category of IV and would have been sentenced to 37 months under the guidelines. Eudocia pleaded guilty to an offense involving less than a tenth as much crack cocaine and faces 46 to 57 months under the guidelines.
Based upon proposals by the Sentencing Commission, this Court determined in the Stukes case that a 20 to 1 powder to crack ratio would "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 . . . [while] also further[ing] the policy considerations highlighted by the Sentencing Commission, see Simon, 361 F. Supp. 2d at 43, [and] achieving the level of deterrence necessary to protect the public." Stukes, 2005 U.S. Dist. LEXIS 23394, at *4-*6.
Having paid due consideration to all of the Section 3553(a) factors, including the nature of the offense and the characteristics of the offender it is determined that a nonguidelines sentence is warranted in the instant case. The Sentence
Eudocia was convicted of distribution and possession of 28 grams of crack cocaine. Treating it like powder cocaine, and based upon a ratio of 20:1, Eudocia sold the equivalent of 560 grams of powder cocaine (28 x 20 = 560), which results in an offense level of 21. See U.S.S.G. § 2D1.1.
Based upon a Criminal History Category of I, the guidelines range for an offense level of 21 is 37 to 46 months. For the reasons set forth above, Eudocia is hereby sentenced to 37 months imprisonment.
A term of supervised release of three years is also imposed. Eudocia shall report to the nearest Probation Office within 72 hours of release from custody, and supervision will be in the district of her residence.
As mandatory conditions of supervised release, Eudocia 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 submit to one drug testing within fifteen days of placement on supervised release and at least two unscheduled tests thereafter; and (5) cooperate in the collection of DNA as directed by the probation officer.
The standard conditions of supervision (1-13) are imposed in addition to the following special condition: Eudocia 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 release may be found, so long as the search is conducted at a reasonable time and in a reasonable manner.
A special assessment fee of $100 payable to the United States is mandatory and due immediately. Because Eudocia lacks financial resources and in consideration of the factors listed in 18 U.S.C. § 3572, no fine is imposed.
It is so ordered.