Summary
relying on defendant's criminal history to reject request for below-Guidelines' sentence based on fast-track disparity
Summary of this case from U.S. v. Romero-PedrozaOpinion
No. 04 CR 456 (NRB).
June 30, 2005
Vincent Tortorella, Assistant United States Attorney, Southern District of New York, New York, NY.
Jennifer Brown, Federal Defender Division, Legal Aid Society, New York, NY.
MEMORANDUM AND ORDER
Victor Frias pleaded guilty to a one-count indictment charging the defendant with illegal reentry after having been deported following a conviction for the commission of an aggravated felony. On August 25, 2004, I sentenced Frias to twenty-four months imprisonment, to run concurrently with the balance of his state sentence on an unrelated charge.
Frias pleaded guilty to a drug conspiracy in New York state court on September 23, 2003, and was subsequently sentenced to thirty months to five years imprisonment. Frias was writted to this Court on the illegal reentry charge while serving that sentence.
Frias appealed his sentence, and on May 20, 2005, the Second Circuit remanded this case to determine whether the previously imposed sentence was consistent with the Supreme Court's decision in Unites Stated 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). Under Crosby, I must determine whether I would have imposed a different sentence in light of the Booker decision. If after consideration of all the factors listed in 18 U.S.C. § 3553 (a) and treating the Guidelines as advisory, I would have imposed a materially different sentence, re-sentencing of the defendant is required.
In connection with this remand, the Government and the defendant have submitted letters to this Court, and I have reviewed these submissions. In addition, I have reviewed Frias' Presentence Report, the transcript of his sentencing, and the parties' original sentencing submissions. Treating the Guidelines as advisory and after consideration of the factors set forth in 18 U.S.C. 3553 (a), I conclude that I would not have sentenced Frias to a nontrivially different sentence had the Guidelines been advisory at the time of his sentencing.
Frias argues that his sentence should be reduced for three reasons. First, the applicable Guidelines range for illegal reentry is unreasonable because it "double counts" Frias' prior offense as a factor in evaluating the seriousness of the offense and in the defendant's criminal history. Second, there is an unwarranted disparity in the sentencing of illegal reentry cases between districts with "fast track" programs and those, such as the Southern District of New York, without such a program. Third, Frias' family is planning to move with him to the Dominican Republic when he is deported, lessening the chance of recidivism and decreasing the need for deterrence in this case. The defendant's arguments do not affect the calculation of the applicable Guidelines range for the instant case of twenty-four to thirty months, which I am required to take under advisement. Instead, Frias contends that after consideration of the factors set forth in 18 U.S.C. § 3553 (a), a non-Guidelines sentence is appropriate in this case.
While I find the disparity in the treatment of illegal reentry cases across the country troubling, I see no basis to change my original sentence given Frias' conduct in the instant case. Any alleged disparity in the sentences imposed in illegal reentry cases in other districts is more than offset by the history and characteristics of this defendant. In addition to the instant offense of illegal reentry, Frias has twice been convicted of drug crimes in this country. While serving his first sentence, Frias obtained early release from state prison on the condition that he be deported. However, not long after receiving this early release, Frias illegally returned to the United States and again became involved with drugs. Based on these facts about the defendant's criminal history and Frias' response to the earlier break afforded him, I rejected Frias' motion for downward departure at his original sentencing. Now, after consideration of the applicable Guidelines range, the statutory factors set forth at section 3553 (a), and the Booker decision, I find that the sentence imposed properly reflects the circumstances of the offense and provides just punishment for defendant's conduct.
Because I would not have sentenced Frias to a different sentence if the Guidelines were advisory, defendant's request for re-sentencing is denied.
IT IS SO ORDERED.