Opinion
No. 03 Cr. 1211 (RWS).
April 27, 2005
SENTENCING OPINION
Defendant Jose Molina ("Molina") has pled guilty to the charge that he conspired to distribute and possessed with intent to distribute some 300 grams of cocaine, in violation of 21 U.S.C. §§ 846 and 841(b) (1) (C) (a Class C felony). Molina will be sentenced to 37 months of imprisonment and 3 years of supervised release, subject to the further conditions set forth herein.
Prior Proceedings
On October 7, 2003, Molina was arrested pursuant to a complaint alleging his participation in a conspiracy to distribute and possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 846. Molina has been confined at the Metropolitan Detention Center since his arrest. On October 9, 2003, an indictment was filed that charged eight defendants, including Molina, with various violation of federal drug trafficking laws. Count 1 of this indictment charged Molina with conspiracy to distribute and possession with intent to distribute 50 grams and more of cocaine base, 1 kilogram and more of heroin, and 5 kilograms and more of cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. On May 5, 2004, Molina and the government entered into a plea agreement that stipulated, inter alia, that 300 grams of cocaine would be attributable to Molina. On May 10, 2004, Molina appeared before the Honorable Theodore Katz of this district and allocuted to certain conduct charged in count 1 of the indictment. Judge Katz accepted this guilty plea. By memorandum dated March 31, 2005, Molina has raised certain below-described issues concerning his sentence. The government responded to this memorandum by letter dated April 20, 2005. Molina is scheduled to be sentenced on April 25, 2005.
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
Molina was born in Puerto Rico on August 27, 1981. He is the only child who resulted from the consensual relationship between his mother and his father. Molina's parents separated in November 1981, and his mother subsequently moved with him to Brentwood, New York, where they have both since resided.
Molina dropped out of school when he was a seventh grade student at the South Middle School in Brentwood. He is unable to read or write. When he was 16, he reportedly completed a one-year certificate course in small engine repair at the Cordello Learning Center in Brentwood.
From 1996 until his arrest for the instant offense, Molina lived with Jessica Pinero. On August 4, 2000, their son was born.
Molina has stated that prior to his arrest, he worked as an auto mechanic and tractor driver for two businesses in Brentwood. However, this employment has not been verified.
Molina appears to be without assets or liabilities. As he remains incarcerated, Molina has no verifiable income or living expenses.
Molina has stated that he has abused alcohol, marijuana, cocaine, and ecstasy. He has indicated that he started using marijuana when he was 15 years old, that he used cocaine on a few occasions in 2001, and that he used ecstasy from 2002 until his arrest for the present offense. For a period of time, he was enrolled in an outpatient substance abuse program in Islip, New York.
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 Molina's Presentence Investigation Report ("PSR"), were apparently monitored or recorded by the government.
On August 17, 2003, Molina called Ozuna to say that he wanted 17 grams of cocaine. Ozuna replied that he would give him 21 grams on that date, and then 4.5 grams every day thereafter.
On August 30, 2003, Molina told Ozuna that he wanted to place a drug order and that he would bring a friend to Ozuna who wanted six grams of cocaine. Molina also told Ozuna that he wanted 500 grams of cocaine, and Ozuna told Molina that he would help him.
On September 3, 2003, Molina called Ozuna. At that time, Ozuna told Molina that the police were in his vicinity, and he directed Molina to remain in the Bronx for awhile. Ozuna explained that he was unable to conduct any business because he was being watched by the police.
On September 4, 2003, Molina telephoned Ozuna to say that he wanted 20 grams of cocaine. During a second call made that day, Molina requested for 20 grams of cocaine plus an additional quantity of the drug.
On September 6, 2003, Ozuna instructed Molina not to call after 3:00 pm as he expected the police to be present. He also admonished Molina to save his money so that he would be able to buy another 50 to 100 grams of cocaine.
On September 10, 2003, Molina called Ozuna from his cellphone to advise him that he had called earlier requesting 5 grams of cocaine.
Relevant Statutory Provisions
The maximum term of imprisonment for Molina's offense is 20 years. See 21 USC §§ 846, 841 (b) (1) (C). It should be noted that although the indictment charged Molina with conspiring to possess and distribute quantities of narcotics governed by 21 U.S.C. § 841 (b)(1)(A), the parties stipulated in the May 5, 2004 plea agreement that Molina was culpable for an amount of narcotics governed by 21 U.S.C. § 841(b) (1) (C).
A term of at least 3 years of supervised release is required if a sentence of imprisonment is imposed. See 21 U.S.C. §§ 846, 841(b)(1)(C).
Molina is eligible for not less than one nor more than five years of probation. See 18 U.S.C. § 3561(c)(1). Because he has pled guilty to the commission of 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 for Molina's offense is $1,000,000. See 21 U.S.C. § 846. A special assessment of $100 is mandatory. See 18 U.S.C. § 3013.
Since this is a first conviction for distribution of a controlled substance, Molina 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 § 1B1.11.
Offense Level
The guideline for a violation of 21 U.S.C. § 846 is found in § 2D1.1. As described above, the defendant's criminal activity involved distributing and possessing with the intent to distribute at least 300 grams of cocaine. For an offense of this type involving this quantity of cocaine, § 2D1.1(c) (9) specifies a base offense level of 22.
Based on Molina's plea allocution, he has shown recognition of responsibility for the offense. Because of his timely notification of his intention to pled guilty, thus allowing the government to allocate its resources more efficiently, and because the aforementioned base offense level is 16 or greater, the offense is reduced three levels. See § 3E1.1(a), (b).
Based on the nature of Molina's conduct, it is determined that he was a minor participant in the drug trafficking conspiracy that is the subject of this prosecution. Therefore, the offense is reduced two levels. See § 3B1.2(b).
The resulting adjusted offense level is 17.
Criminal History
The following criminal adjudications resulted in criminal history points for Molina. Available information indicates that Molina was represented by counsel in all below-described matters resulting in conviction, unless otherwise indicated.
On February 14, 1999, Molina allegedly damaged the windshield of a car belonging to a woman to whom he was romantically linked. That same day, Molina telephoned the woman at her home and threatened her. He subsequently pled guilty in Suffolk County District Court to a charge of criminal mischief. On July 10, 2000, he was sentenced to 3 years of probation. On January 10, 2001, he was resentenced to 120 days of imprisonment following revocation of this probation.
On June 8, 1999, Molina was arrested for his role in the robbery of jewelry from a 17-year-old boy in Brentwood. He was subsequently convicted in Suffolk County District Court of attempted 3rd degree robbery. On November 18, 1999, he was sentenced to five years of probation. On January 5, 2001, he was resentenced to 120 days imprisonment following revocation of this probation.
On February 21, 2001, Molina pled guilty in Suffolk County District Court to a charge of possession of contraband in prison. He was sentenced to 30 days imprisonment.
On March 13, 2001, Molina was released from custody.
On April 3, 2002, Molina was arrested for possession of marijuana. On June 19, 2003, he pled guilty in Suffolk County District Court to 5th degree criminal possession of marijuana. He was fined $100 for this offense.
The above-described criminal convictions result in a criminal history score of 6. See §§ 4A1.1(a), 4A1.1(a)(b), 4A1.1(c), 4A1.2(e)(1), 4A1.2(e)(2). It should be noted that in Molina's March 31, 2005 sentencing memorandum, he argues that the February 14, 1999, June 8, 1999, and February 21, 2001 offenses should be treated as a single offense for purposes of calculating his criminal history category because he apparently served concurrent terms of incarceration for these offenses. However, these sentences are to be counted separately because they were imposed in unrelated cases. See § 4A1.2(a)(2).
The instant offense was committed less than two years after Molina's release from custody on April 13, 2001. Therefore, 2 points are added. See § 4A1.1(d).
The total number of criminal history points is 8. According to the sentencing table at Chapter 5, Part A, 8 criminal history points establish a criminal history category of IV.
Sentence Recommended Under the Guidelines
Based on a total offense level of 17 and a criminal history category of IV, the guideline range for imprisonment is 37 to 46 months.
The guideline range for the term of supervised release is three years, the minimum required by statute. See § 5 D1.2(b).
Because the applicable guideline range is in Zone D of the Sentencing Table, the defendant is not recommended for probation.See § 5B1.1, application note 2.
The recommended fine range for the instant offense is from $6,000 to $1,000,000. See §§ 5E1.2(c)(3)(A), 5E1.2(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 guidelines advise that the Court may deny eligibility for certain federal benefits of any individual convicted of distribution or possession of a controlled substance. See § 5F1.6.
The Remaining 18 U.S.C. § 3553(a) Factors
Having engaged in the Guidelines analysis, the Court has also given due consideration to the remaining factors identified in 18 U.S.C. § 3553(a).
The Sentence
Based on the foregoing, it is determined that a Guidelines term of incarceration is warranted. Therefore, a 37-month term of incarceration is hereby imposed. In view of Molina's history of drug and alcohol use, it is ordered that he be considered for drug screening and treatment while incarcerated.
Molina 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, Molina 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, Molina 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) submit himself to the below-described special condition requiring drug treatment and testing. Furthermore, the standard conditions of supervision (1-13) shall be imposed with the following special conditions:
1. Molina shall participate in a program approved by the United States Probation Office, which program may include testing to determine whether he 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. The 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 the third-party payment.
2. Molina shall participate in an alcohol aftercare treatment program under a co-payment plan, which may include urine testing at the direction and discretion of the probation officer.
Based on the Court's analysis of Molina's financial resources, no fine shall be imposed in this case. However, Molina 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 April 25, 2005.
It is so ordered.