Opinion
08 Cr. 410-01 (RWS).
September 20, 2010
SENTENCING OPINION
On August 25, 2008, Victor Marte-Estrella, a/k/a "Marc Anthony Oliveri," a/k/a "Luis Ramos," ("Marte-Estrella" or "Defendant") pleaded guilty to one count of distribution and possession with intent to distribute 500 grams and more of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B), and 18 U.S.C. § 2. For the reasons set forth below, Marte-Estrella will be sentenced to 80 months' imprisonment to be followed by four years' supervised release. Marte-Estrella will also be required to pay a fine of $5,000 and a special assessment of $100.
Prior Proceedings
On May 8, 2008, Indictment 08 CR 410-01 (RWS) was filed in the Southern District of New York. Count 1 charges that on March 16, 2008, in the Southern District of New York, Marte-Estrella distributed and possessed with intent to distribute 500 grams and more of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B), and 18 U.S.C. § 2. Count 2 charges that on March 16, 2008, in the Southern District of New York, Marte-Estrella distributed and possessed with intent to distribute less than 50 kilograms of marijuana, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(D), and 18 U.S.C. § 2. Count 3 charges that from at least November 2007 through March 16, 2008, Marte-Estrella possessed multiple fast identification documents, including false state driver's licenses, a false birth certificate, a false social security card, among other false documents, to facilitate his unlawful distribution of cocaine and marijuana, in violation of 18 U.S.C. § 1028(a)(3), (a)(6) and (b)(3)(A).
On August 25, 2008, Marte-Estrella appeared before the Honorable Kevin N. Fox in the Southern District of New York and allocuted to Count 1 pursuant to a plea agreement.
On May 6, 2010, the Court received a letter from Marte-Estrella requesting that Court be lenient when imposing a sentence in light of Marte-Estrella's family background and efforts to improve himself, to start a family and to have a normal life.
Marte-Estrella's sentencing is currently scheduled for September 23, 2010.
The Sentencing Framework
In accordance with the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (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 Guidelines. 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.
In light of the Court's statutory responsibility "to `impose a sentence sufficient, but not greater than necessary' to accomplish the goals of sentencing," Kimbrough v. United States, 552 U.S. 85, 102 (2007) (quoting 18 U.S.C. § 3553(a)), and having considered the Guidelines and all of the factors set forth in § 3553(a), it is determined that a Guidelines sentence is warranted in the instant case.
The Defendant
The Court adopts the facts set forth in the Presentence Investigation Report ("PSR") with respect to Marte-Estrella's personal and family history.
The Offense Conduct
The following description draws from the PSR. The specific facts of the underlying conduct are adopted as set forth in that report.
On March 11, 2005, Marte-Estrella was convicted of Conspiracy to Distribute Narcotics in the Southern District of New York and was sentenced to 40 months' imprisonment to be followed by three years' supervised release. Subsequently, Marte-Estrella violated the conditions of his supervised release, and on June 14, 2007, he was sentenced in connection with that violation to three years' supervised release, with a special condition of six months of home confinement with electronic monitoring. Marte-Estrella again violated the terms of his supervised release, and on January 17, 2008, a warrant for his arrest was issued by the Honorable Harold Baer.
Early on March 16, 2008, the U.S. Marshal's warrant squad received information regarding the address at which Marte-Estrella was residing. Several deputy U.S. Marshal's went to the address and positioned agents in locations surrounding the building and near Marte-Estrella's door, through which they could hear the sound of people inside the apartment.
The marshals knocked and announced themselves as law enforcement officers, but nobody answered the door. Marshals positioned around the building observed an individual later identified as Marte-Estrella attempting to exit the apartment through the back door. At this point, the marshals at the apartment door forced entry into the apartment.
Once inside, the marshals opened a door in the back of the apartment and observed Marte-Estrella reentering the apartment through the back door. After Marte-Estrella identified himself to the marshals, he was arrested.
During a protective sweep of the apartment, the marshals opened two hallway closets and discovered, in plain view, an open box and an open garbage bag, both containing marijuana. In the second closet, also in plain view, were three sealed plastic bags containing a white, powdery substance, and a brick-shaped package, of the size and shape commonly used in packaging a kilogram of narcotics. The marshals also recovered from the kitchen a cutting board, on top of which was some additional white, powdery substance and a razor blade.
Later the same day the DEA obtained a search warrant for the apartment and found in the apartment a total of 1,500 grams of cocaine, a quantity of marijuana and several drug ledgers.
According to the Government, Marte-Estrella is responsible for distributing and possessing with intent to distribute at least two kilograms, but less than 3.5 kilograms, of cocaine, which includes the 1,500 grams found in the apartment and the corresponding amounts in the drug ledgers. Marte-Estrella did not stipulate to being responsible for the marijuana found in the apartment.
The Relevant Statutory Provisions
Pursuant to 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B), the mandatory minimum term of imprisonment is five years and the maximum term of imprisonment is 40 years.
If a sentence of imprisonment is imposed, a term of supervised release of at least four years is required, pursuant to 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B).
Defendant is not eligible for probation because the instant offense is one for which probation has been expressly precluded by statute, pursuant to 18 U.S.C. § 3561(a)(2).
The maximum fine that may be imposed is $2 million, pursuant to 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B). A special assessment of $100 is mandatory, pursuant to 18 U.S.C. § 3013.
The Guidelines
The November 1, 2009 edition of the United States Sentencing Commission Guidelines Manual has been used in this case for calculation purposes, pursuant to § 1B1.11(a). The Court finds the following with respect to Defendant's applicable offense level, criminal history, recognition of responsibility, and term of imprisonment:
The guideline for the violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B) is found in § 2D1.1. Defendant's criminal activity involved at least two kilograms but less than 3.5 kilograms of cocaine. The base offense level for the instant offense is therefore 28, pursuant to the Drug Quantity Table under § 2D1.1(c)(6).
Based on his plea allocution, Defendant has shown recognition of his responsibility for the offense. Pursuant to § 3E1.1(a), the offense is reduced two levels. Furthermore, an additional one-level reduction is warranted, pursuant to § 3E1.1(b), because Defendant gave timely notice of his intention to enter a plea of guilty, thereby permitting the Government to avoid preparing for trial and permitting the Court to allocate its resources efficiently.
Accordingly, the applicable offense level is 25.
On April 21, 2004, Marte-Estrella was arrested and charged with Conspiracy to Distribute Heroin. On March 10, 2005, Marte-Estrella was sentenced in the U.S. District Court for the Southern District of New York to 40 months' imprisonment and three years' supervised release. Pursuant to §§ 4A1.1(a) and 4A1.2(e)(1), this conviction warrants three criminal history points.
At the time the instant offense was committed, Defendant was on supervised release for his March 10, 2005 conviction. Pursuant to § 4A1.1(d), two criminal history points are added. Additionally, the instant offense was committed less than two years after Defendant's release from custody on November 16, 2006, for the March 10, 2005 sentence. Pursuant to § 4A1.1(e), one criminal history point is added, as two points were added pursuant to § 4A1.1(d). This brings the total of Defendant's criminal history points to six.
A total of six criminal history points establishes a Criminal History Category of III, pursuant to the table at Chapter 5, Part A, of the Guidelines.
Based on a total offense level of 25 and a Criminal History Category of III, the Guidelines range for imprisonment is 70 to 87 months.
The Guidelines range for a term of supervised release is four to five years, pursuant to § 5D1.2(a)(1) and (c).
Defendant is not eligible for probation because the instant offense is one for which probation has been expressly precluded by statute, pursuant to § 5B1.1(b)(2).
The fine range for the instant offense is $10,000 to $2 million, pursuant to § 5E1.2(c)(3)(A) and (c)(4)(A). Subject to 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 § 5E1.2(d)(7). The most recent advisory from the Administrative Office of the United States Courts suggests a monthly cost of $2,270.93 to be used for imprisonment, a monthly cost of $317.32 for supervision, and a monthly cost of $2,063.19 for community confinement.
The Remaining Factors of 18 U.S.C. § 3553(a)
Having engaged in the Guidelines analysis, this Court also gives due consideration to the remaining factors identified in 18 U.S.C. § 3553(a) to impose a sentence "sufficient, but not greater than necessary," as is required by the Supreme Court's decision in Booker, 543 U.S. 220, and the Second Circuit's decision in Crosby, 397 F.3d 103. Upon consideration of all of the relevant factors, it is concluded that the imposition of a Guidelines sentence is warranted.
The Sentence
For the instant offense, Marte-Estrella will be sentenced to 80 months' imprisonment and 4 years' supervised release.
Marte-Estrella is directed to report to the nearest United States Probation Office within seventy-two hours of release to commence his term of supervised release. It is recommended that Marte-Estrella be supervised by the district of his residence.
As mandatory conditions of his supervised release, Marte-Estrella 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; and (4) cooperate in the collection of DNA as directed by the probation officer. The mandatory drug testing condition is suspended due to the imposition of a special condition requiring drug treatment and testing.
Furthermore, the standard conditions of supervision (1-13), set forth in the judgment, shall be imposed with the additional special conditions:
(1) Defendant will participate in a program approved by the United States Probation Office, which program may include testing to determine whether Defendant has reverted to using drugs or alcohol. The Court authorizes the release of available drug treatment evaluations and reports to the substance abuse treatment provider, as approved by the probation officer. Defendant will be 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.
(2) Defendant shall submit his person, residence, place of business, vehicle, or any other premises under his 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 the release may be found. The search must be conducted at a reasonable time and in a reasonable manner. Failure to submit to a search may be grounds for revocation. Defendant shall inform any other residents that the premises may be subject to search pursuant to this condition.
(3) Defendant shall provide the probation officer with access to any requested financial information.
(4) Defendant shall not incur new credit charges or open additional lines of credit without the approval of the probation officer unless Defendant is in compliance with the installment payment schedule.
Defendant shall also pay a fine of $5,000. If Defendant is engaged in a BOP non-UNICOR program, he shall pay $25 per quarter toward the criminal financial penalties. However, if Defendant participates in the BOP's UNICOR program as a grade 1 through 4, he shall pay 50% of his monthly UNICOR earnings toward the criminal financial penalties, consistent with BOP regulations at 28 C.F.R. § 545.11. The balance of the fine shall be paid in monthly installments of 10% of gross monthly income over a period of supervision to commence 30 days after the date of release from custody.
A special assessment of $100, payable to the United States, is mandatory and shall be due immediately.
The terms of this sentence are subject to modification at the sentencing hearing scheduled for September 23, 2010.
It is so ordered.