Opinion
No. 03 Cr. 1257 (RWS).
May 23, 2005
SENTENCING OPINION
Defendant Felix Hernandez ("Hernandez") has pled guilty to a conspiracy to distribute heroin in violation of 18 U.S.C. § 846 (a Class A felony). Hernandez will be sentenced to 50 months of incarceration to be followed by 3 years of supervised release, subject to the further conditions provided herein.
Prior Proceedings
A complaint alleging that Hernandez violated 18 U.S.C. § 846 was filed on October 3, 2003. A warrant for Hernandez' arrest was issued that same day. On October 6, 2003, Hernandez was arrested. On October 21, 2003, an indictment was filed charging Hernandez with three offenses. Count one of the indictment charged that in violation of 21 U.S.C. § 846, Hernandez and others conspired to distribute and possess with intent to distribute one kilogram and more of heroin, five kilograms and more of cocaine, 50 grams and more of crack cocaine, and pills containing Methylenedioxymethamphetamine ("ecstasy"). Count six of the indictment charged that in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C), and 18 U.S.C. § 2, Hernandez distributed and possessed with intent to distribute approximately 120 glassine envelopes of heroin. Finally, count eight of the indictment charged that in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B), and 18 U.S.C. § 2, Hernandez distributed and possessed with intent to distribute approximately one kilogram of cocaine.
Hernandez and the government entered into a plea agreement on May 25, 2004. On June 3, 2004, Hernandez allocuted before the Honorable Henry B. Pitman of this district to the conduct charged in that portion of count one relating to the conspiracy to distribute heroine. Judge Pitman recommended that this guilty plea be accepted by the Court. The recommendation and plea were accepted on July 21, 2004. By letter dated May 20, 2005, Hernandez' counsel has raised certain issues concerning Hernandez' sentence. See Letter from Frank Handelman to the Court of May 20, 2005 ("Handelman Letter").
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 114-15.
The Defendant
Hernandez was born in the Dominican Republic on November 11, 1956. He is the third of five children resulting from his parents' union. Hernandez' mother died from tuberculosis in 1968. Hernandez has seven paternal half siblings, resulting from his father's relationships subsequent to the death of Hernandez' mother. Some of these half siblings are co-defendants in the instant case. Hernandez' father died from a heart attack in 1982.
Hernandez grew up in poverty in the Dominican Republic. He completed two years of high school there. He later took a course in professional waitering and a cooking course, both in the Dominican Republic. He received no additional schooling in the United States.
On April 25, 1981, Hernandez was married. This marriage produced five children. Hernandez and his wife separated in 1994 when he came to the United States and she chose to remain in the Dominican Republic. They divorced soon thereafter.
In 1994, Hernandez came to the United States on a tourist visa, and he settled in New York City. He remained here and received permanent resident status on April 23, 1996.
On November 10, 1994, Hernandez married his current wife in New York City. No children have resulted from this marriage. The couple has been separated since 1999.
From 1994 to 1998, Hernandez and his wife lived at 2333 Andrews Avenue in the Bronx, New York. From 1998 until his arrest for the instant offense, Hernandez resided at 2415 Creston Avenue in the Bronx, where he worked as the building superintendent.
In his capacity as a building superintendent, Hernandez received a free apartment, a salary of $200 per week, and additional revenue for doing maintenance work for tenants. Before becoming the building superintendent, Hernandez worked as a handyman.
Hernandez suffers from several medical problems. He was diagnosed with Hepatitis B about 13 years ago, although he does not currently take any medication for this condition. He suffers from high blood pressure as well as high cholesterol, and had been on medication for this condition until about a month ago. Hernandez has a grapefruit-sized hematoma on the left side of his chest. According to Hernandez, this hematoma has been its current size for about eight months. Hernandez suffered a hernia about five months ago, and he is in need of an operation. Hernandez has no known mental or emotional health problems, and he does not have any known substance abuse problems.
Hernandez does not have any known assets. He has credit card debt in the amount of approximately $1,000. According to a credit report, he has two credit card accounts (totaling $1,683) that have been written off as uncollectible, two unpaid collection items (totaling $1,095), and a New York State Tax Commission judgment (totaling $2,750).
Hernandez filed income tax returns on a regular basis from 1998 to 2001 The only year in which he reported taxable income was 1999, in which he reported $2,502 in income.
The Offense Conduct
The following information concerning Hernandez' offense conduct was received from the government. The investigation into the instant offense was conducted by the Drug Enforcement Administration (DEA) with the assistance of a cooperating witness.
The investigation revealed that Hernandez and others were members of an drug organization that trafficked heroin, cocaine, crack, and ecstasy in the Bronx and other parts of New York City. Three of Hernandez' siblings are members of this organization.
The government has alleged that Hernandez was a member of the "Moreno Organization," a group that was organized for the purpose of distributing drugs. Hernandez denies this allegation.See Handelman Letter at 1.
On February 5, 2003, the cooperating witness met with Hernandez and others. During this meeting, Hernandez and the others discussed with the cooperating witness their drug activities, as well as the drug activities of others.
Also in February 2003, the confidential witness had several telephone conversations with Hernandez in which they discussed the purchase of heroin.
On February 27, 2003, the cooperating witness arranged to meet Hernandez at 2415 Creston Avenue, which was under surveillance by law enforcement agents. The law enforcement agents provided the cooperating witness with approximately $700 of funds for the purchase of the heroin. The witness was also outfitted with listening and transmitting devices.
At about 3:50 p.m. that day, the agents who were conducting surveillance saw the cooperating witness enter the apartment building at 2415 Creston Avenue. A short while later, the cooperating witness was observed exiting the building. Agents
The minimum term of supervised release for Hernandez' offense is five years, and the maximum term is life. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846.
Pursuant to the plea agreement entered into by the parties, if the Court in this case finds that the relevant statutory criteria has been met, it may impose a sentence in accordance with the applicable sentencing analysis, without regard to any statutory minimum sentence. See 18 U.S.C. § 3553(f).
Hernandez is not eligible for probation because the instant offense is a Class A felony. See 18 U.S.C. § 3561(a)(1).
The maximum fine that may be imposed for Hernandez' offense is $4 million. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. A special assessment of $100 is mandatory. See 18 U.S.C. § 3013.
Since this is a first conviction for an offense involving distribution of a controlled substance, Hernandez may be declared ineligible for any or all federal benefits for up to five years as determined by the Court. See 21 U.S.C. § 862(a)(1)(A).
Pursuant to the Violent Crime Control and Law Enforcement Act of 1994, for offenses committed after September 13, 1994, the court shall require that all offenders on probation, parole, or supervised release 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 5, 2003 edition of the United States Sentencing Commission Guidelines Manual ("the Guidelines") has been used in this case for calculation purposes. See Guidelines § 1B1.11.
Offense Level
Hernandez' criminal activity involved a conspiracy to distribute more than one but less than three kilograms of heroin. The offense level for a conspiracy to distribute this quantity of heroin is 32. See § 2D1.1(c)(4) (Drug Quantity Table).
Since Hernandez meets the criteria set forth in § 5C1.2, a two-level decrease is warranted. See § 2D1.1(b)(6).
Based on the foregoing, Hernandez' adjusted offense level is 30.
Based on the Hernandez's plea allocution, he has shown recognition of responsibility for the offense. Because of his timely notification of his intention to plead guilty, thus allowing the government to allocate its resources more efficiently, and because the aforementioned base offense level is 16 or greater, the offense level is reduced 3 levels. See § 3E1.1(a), (b).
The resulting total offense level is 27.
Criminal History
Hernandez has no known criminal convictions. Therefore, he has zero criminal history points and a criminal history category of I.
Sentence Recommended Under the Guidelines
For Hernandez' offense, a mandatory minimum 10-year term of imprisonment is required by statute. Therefore, the standard recommended term of imprisonment is 120 months. See § 5G1.1(b). However, since Hernandez satisfies the criteria set forth in 18 U.S.C. § 1553(f), it is recommended that he be sentenced without regard to the mandatory minimum statutory penalty. See § 5C1.2. Based on a total offense level of 27 and a criminal history category of I, the recommended term of imprisonment is between 70 and 87 months. See Ch. 5, Pt. A.
Probation is precluded by statute. Furthermore, because the applicable guideline range is in Zone D of the Sentencing Table, Hernandez is not recommended for probation. See § 5B1.1, Application Note 2.
The standard minimum term of supervised release required by statute is 5 years. See § 5D1.2(b). However, since Hernandez is "safety valve" eligible, the term is 3 to 5 years. See § 5D1.2(a)(1).
The recommended fine range for Hernandez' offense is $12,500 to $4 million. See §§ 5 E1.2(c)(3)(A) and E1.2(c)(4). The Guidelines advise that 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. See § 5E1.2(d)(7). The most recent advisory from the Administrative Office of the United States Courts suggests a monthly cost of $1,931.97 to be used for imprisonment, a monthly cost of $292.21 for supervision, and a monthly cost of $1,590.66 for community confinement.
The Remaining 18 U.S.C. § 3553(a) Factors
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 particular, Section 3553(a)(2)(C) requires the Court to consider the need to protect the public from future crimes of this defendant. Hernandez will be forty-nine years old on November 11, 2005, and he has no known prior criminal convictions. This court and others have previously declined to impose Guidelines sentences on defendants who, like Hernandez, were over the age of forty on the grounds that such defendants exhibit markedly lower rates of recidivism in comparison to younger defendants. See, e.g., United States v. Carmona-Rodriguez, No. 04 Cr. 667 (RWS), 2005 WL 840464, at *5 (S.D.N.Y. Apr. 11, 2005) (imposing a term of incarceration of 30 months on a 54-year-old defendant where the Guidelines recommended a minimum term of 46 months); Simon v. United States, ___ F. Supp. 2d ___, 2005 WL 711916, at *4 (E.D.N.Y. Mar. 17, 2005) (imposing a term of incarceration of 240 months on a 43-year-old defendant where the Guidelines recommended a minimum of 324 months); United States v. Nellum, 2:04-CR-30, 2005 WL 300073, at *3 (N.D. Ind. Feb. 3, 2005) (imposing a term of incarceration of 108 months on a 57-year-old defendant where the Guidelines recommended a minimum of 168 months); see also United States Sentencing Commission, Measuring Recidivism: The Criminal History Computation Of The Federal Sentencing Guidelines, at p. 28 (2004) (stating that for those defendants in Criminal History Category I, the recidivism rate for defendants who are between the ages of 41 and 50 is 6.9 percent whereas the recidivism rate for such defendants who are between the ages of 31 and 40 is greater than 12 percent), available at http://www.ussc.gov/-publicat/Recidivism_General.pdf.
It is also significant that the defendant suffers from Hepatitis B, high blood pressure, high cholesterol and that he has a grapefruit-sized hematoma on the left side of his chest.See Nellum, 2005 WL 300073, at *4 (stating that Section 3553(a)(2) and Booker "`require judges to impose sentences that . . . effectively provide the defendant with needed medical care.'") (quoting Booker, 125 S.Ct. at 765.)
The Sentence
In view of (1) the low probability that Hernandez will recidivate and (2) his need for ongoing medical treatment, it is determined that a non-Guidelines term of incarceration is warranted. Therefore, a 50-month term of incarceration is hereby imposed. It should be noted that this non-Guidelines sentence is proportional to those imposed by the Carmona-Rodriguez, Nellum and Simon courts. Hernandez has been detained without bail since his arrest. Therefore, he is not a candidate for voluntary surrender. See 18 U.S.C. § 3143(a)(2).
A 3-year term of supervised release shall be imposed. Within 72 hours of his release from custody, Hernandez shall report to the nearest United States Probation Office. It is recommended that he be supervised by the district of his residence.
As mandatory conditions of his supervised release, Hernandez 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; (5) submit to one drug test within 15 days of placement on supervised release and at least two unscheduled drug tests thereafter, as directed by the probation officer.
Furthermore, the standard conditions of supervision (1-13) shall be imposed with the special condition that Hernandez shall obey the immigration laws and comply with the directives of immigration authorities.
Based on the Court's analysis of Hernandez's financial resources, no fine shall be imposed in this case. However, Hernandez shall pay to the United States a mandatory special assessment of $100, which shall be due immediately.
The terms of this sentence are subject to modification at the sentencing hearing set for May 23, 2005.
It is so ordered.