Opinion
03 Cr. 1257-03 (RWS).
March 30, 2006
SENTENCING OPINION
Defendant Hector Hernandez ("Hernandez") has pleaded guilty to a charge of possession with intent to distribute 1000 ecstasy pills, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C), a class B felony, and a charge of distribution and possession with intent to distribute 20 kilograms of heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C), a class B felony. For the reasons set forth below, Hernandez is sentenced to time served. In addition, Hernandez is sentenced to three years supervised release and shall be required to pay a special assessment of $200.
Prior Proceedings
Hernandez was arrested on October 6, 2003 and has remained in custody since that date. An indictment was filed in the Southern District of New York, which charged that: (1) from August 2001 up to and including October 2003, Hernandez and others conspired to distribute and to possess with intent to distribute one kilogram or more of heroin, five kilograms or more of cocaine, 50 grams or more of crack cocaine, and pills containing MDMA, all in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C); (2) Hernandez possessed with intent to distribute approximately 100 ecstasy pills in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C); (3) Hernandez distributed and possessed with intent to distribute approximately 20 grams of heroin; and (4) Hernandez distributed and possessed with intent to distribute approximately one kilogram of cocaine.
On January 19, 2006, Hernandez appeared before this Court and pleaded guilty to possession with intent to distribute 1000 ecstasy pills and to distribution and possession with intent to distribute 20 kilograms of heroin (Counts 5 and 7 of the indictment) in accordance with a plea agreement entered into with the Government. The sentencing of Hernandez is scheduled for March 31, 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
The Defendant was born on July 2, 1967 in the Dominican Republic. He related that he was reared in an impoverished area in Santo Domingo, Dominican Republic. Hernandez's mother reportedly passed away when Hernandez was six. His father subsequently died when Hernandez was fifteen.
The Defendant stated that after his father's death, he was overcome with grief and left the household. He was reportedly homeless until he was sixteen years old, at which point he was taken in by a friend of his father, with whom he resided until 1987.
Hernandez reports immigrating to the United States in 1992. Bureau of Immigration and Custom Enforcement records reflect that he entered the United States on October 15, 1996 and is a legal permanent resident.
In 1993, Hernandez married Ruth Ramos, whom he met through a mutual friend. His former wife indicated that his mental instability caused problems in their marriage. As a result, the couple ultimately divorced in 1995.
In 1999, the Defendant married Alina Tavares in Santo Domingo, Dominican Republic. Their marriage resulted in the birth of Amber Hernandez, age 5. Hernandez reports that his wife and daughter have always and continue to reside in the Dominican Republic.
Hernandez suffers from hypertension and reportedly takes medication to address the problem.
Hernandez reports that beginning in the 1980's his family pleaded with him to seek mental health treatment due to his acting in a "peculiar" manner. Hernandez was reportedly in a motorcycle accident in 1986, in which he sustained serious cranial trauma. He finally received this treatment when he was incarcerated in 2003 for the instant offense.
Subsequent to his arrest, a psychiatric examiner's report was ordered to determine the competency of Hernandez. Dr. Drob, the court appointed psychiatric examiner, came to the conclusion that Hernandez was incompetent. Hernandez was thereafter transferred to the Federal Correctional Institution in Waseca, Minnesota. Dr. Drob concluded that Hernandez was suffering from bipolar disorder with psychotic features that originated from the 1986 motorcycle accident. As a result of this accident Hernandez also reportedly suffered injury to his memory and thinking, rendering it difficult to make decisions. Dr. Drob also concluded that Hernandez was suffering from these deficits at the time of the offense. Hernandez was prescribed a variety of psychotropic medications, including Lithium, Olanzapine, and Risperidone.
It took approximately 18 months to restore Hernandez to competency through a regime of various psychotropic medications to competency. This extended time frame highlights the severity of Hernandez's mental illness.
Hernandez reported that he drinks alcoholic beverages daily, but does not drink excessively or become intoxicated. He also reported that he began smoking marijuana when he was 18. He related that the use of marijuana escalated to a daily habit, but that he last smoked it in 1995. The Defendant also stated that in 1992 he snorted cocaine daily and last snorted it in 1992.
The Defendant graduated in 1987, from a school in the Dominican Republic, where he received the equivalent of a high school diploma.
Hernandez reported that from 1992 to 2003, he was employed in the construction, demolition, and painting fields. He advised that his employment was on an as needed basis and that his income ranged from $150 to $1000 weekly.
The Offense Conduct
The offense conduct is adopted as set forth in the Presentence Investigation Report dated March 7, 2006.
Relevant Statutory Provisions
The maximum term of imprisonment that may be imposed for Counts 5 and 7 is 20 years pursuant to 21 U.S.C. §§ 812(a), 841(a)(1), and 841(b)(1)(C).
A term of at least three years supervised release is required if a sentence of imprisonment is imposed. See 21 U.S.C. § 841(b)(1)(C).
The defendant is eligible for not less than one nor more than five years' probation by statute. See 18 U.S.C. § 3561(c)(1). Because the offense is a felony, one of the following must be imposed as a condition of probation unless extraordinary circumstances exist: a fine, restitution, or community service. See 18 U.S.C. § 3563(a)(2).
The maximum fine that may be imposed for Counts 5 and 7 is $1,000,000. See 18 U.S.C. § 3571. A special assessment of $100 per count for a total of $200 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. §§ 812, 841(a)(1), and 841(b)(1)(C) is found in U.S.S.G. § 2D1.1. As the instant offense involved 1000 ecstasy pills and 20 grams of heroin, the drugs will be converted to marijuana, pursuant to the drug equivalency tables of § 2D1.1. Pursuant to this calculation, 1000 ecstasy pills is equivalent to 125 kilograms of marijuana and 20 grams of heroin is equivalent to 20 kilograms of marijuana. See U.S.S.G. § 2D1.1. Accordingly, 145 kilograms of marijuana will be used for guideline calculation purposes. U.S.S.G. § 2D1.1(c)(7) indicates that an offense which involves 100 to 400 kilograms of marijuana has a base offense level of 26.
Based upon his plea allocution, Hernandez has shown recognition of responsibility for his offense. Therefore, because his base offense level is greater than 16, his offense level is reduced by three levels. See § 3E1.1(a) and (b). The resulting adjusted offense level is 23.
Criminal History
Hernandez has no known criminal convictions, which results in zero criminal history points. According to the sentencing table at Chapter 5, Part A, zero criminal history points establish a Criminal History Category of I.
Sentencing Options
Based upon a total offense level of 23 and a Criminal History Category of I, the guideline range for imprisonment is 46 to 57 months.
The guideline range for a term of supervised release is two years, but not more than three years. See U.S.S.G. § 5D1.2(a)(2). Due to the statutory penalty of 21 U.S.C. 842(b)(1)(C), the guideline range of supervised release is three years.
Because the applicable guideline range is in Zone D of the Sentencing Table, the Defendant is not eligible for probation.See U.S.S.G. § 5B1.1.
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 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 (2d 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 section 3553(a)(2)(B).
As the above description of Hernandez and the evaluation conducted by Dr. Drob illustrate, Hernandez has long suffered from serious mental illness, which has significantly affected, among other things, his ability to think logically and coherently, his ability to perceive and separate reality from fantasy, his emotional and behavioral control, and his ability to manage basic psychological aspects of every living. Dr. Drob's report further indicates that the Defendant suffers from an organic psychotic disorder, resulting from cerebral damage sustained in an accident nearly twenty years ago. Pursuant to § 3553(a)(1), the severity of the Defendant's symptoms and the failure to obtain treatment for his illness for such a long period of time weigh in favor of imposing a non-guideline sentence.
Similarly, taking consideration of the need for the sentence to reflect the seriousness of the offense and to provide adequate general and specific deterrence, pursuant to § 3553(a)(2)(A) and (B), it is determined that the sentence imposed is appropriate. Hernandez has no criminal record, and he has never been incarcerated previously.
Pursuant to § 3553(a)(2)(D), in addition to deterrence, the Court also gives due consideration to rehabilitation as a goal of punishment. Given Hernandez's apparent need for continued psychiatric and emotional counseling, it is determined that the rehabilitative goals of punishment will be best served by the imposition of a non-Guidelines sentence.
Finally, in considering the remaining sentencing factors under 18 U.S.C. § 3553(a), the Court must take into account "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. 18 U.S.C. § 3553(a)(6). Since Booker, a growing number of courts have "held that sentencing judges are `no longer prohibited from considering the disparity between co-defendants in fashioning a reasonable sentence.'" Ferrara v. United States, 372 F. Supp. 2d 108, 2005 WL 1205758, at *11 (D. Mass. 2005) (quoting United States v. Hensley, 363 F. Supp. 2d 843, 2005 WL 705241, at *2 (W.D. Va. 2005)); see also United States v. McGee, 408 F.3d 966, 2005 U.S. App. LEXIS 10178, 2005 WL 1324815, at *17 (7th Cir. June 3, 2005); Simon v. United States, 361 F. Supp. 2d 35, 49 (E.D.N.Y. 2005). Having paid due consideration to the sentences of his co-defendants, the sentence hereby imposed is deemed to avoid unwarranted disparities.
Taking the aforementioned factors into account, it is determined that the imposition of a non-Guidelines sentence is appropriate in the instant case.
The Sentence
In accordance with the above, Hernandez is hereby sentenced to time served.
Hernandez is also hereby sentenced to three years supervised release on both counts, to run concurrently. Hernandez shall report to the nearest Probation Office within 72 hours of release from custody, and supervision will be in the district of his residence.
As mandatory conditions of 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; 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 conditions: (1) the defendant shall provide the probation officer with access to any requested financial information; (2) the defendant shall participate in a mental health program approved by the U.S. Probation Office (the costs for which he shall contribute to which if he has the ability to pay) and continue to take any prescribed medications unless otherwise instructed by his health care provider; (3) the defendant shall authorize the release of available psychological and psychiatric evaluations and reports to his health care provider; and (4) the defendant shall obey the immigration laws and comply with the directives of immigration authorities.
A special assessment fee of $200 payable to the United States is mandatory and due immediately. Because Hernandez lacks financial resources and in consideration of the factors listed in 18 U.S.C. § 3572, no fine is imposed.
It is so ordered.