Opinion
No. 03 Cr. 747 (JFK).
January 11, 2005
MEMORANDUM OPINION and ORDER
Background
On March 9, 2004, defendant pleaded guilty to the one-count indictment which charged her with conspiracy to distribute and possess with intent to distribute one kilogram and more of heroin (18 U.S.C. §§ 812, 841 (a) (1), 841 (b) (1) (A) and 846). The Probation Department has submitted a detailed Presentence Report concluding that the defendant should be sentenced at an offense level 34, Criminal History Category I, creating a range of from 151 to 188 months. This report and conclusion satisfies neither side.
The defense contends:
(1) That I should adjourn the sentence because of Blakely v. Washington, 124 S.Ct. 2531 (2004), and wait for the Supreme Court to decide United States v. Booker and United States v. Fanfan;
(2) That the defendant should not be found to be a manager or supervisor of the conspiracy (U.S.S.G. § 3B1.1);
(3) That the defendant is eligible for "safety valve" treatment (§ 5C1.2 of the U.S.S.G.); and
(4) That the defendant is entitled to a downward departure because of "extraordinary family circumstances" (§ 5H1.6 of the U.S.S.G.).
The Government also disagrees with the Probation Report and wants the defendant to be sentenced at a level 37 with a guideline range of 210 to 262 months, thereby denying a three-level reduction for acceptance of responsibility.
Discussion
As to the application to adjourn the sentence, the motion is denied. United States v. Mincey, 380 F.3d 102 (2d Cir. 2004). It was pointed out at the Fatico hearing on December 22, 2004 that it was the Court's intention to proceed with the sentence at this time. Delaying sentences because of Blakely v. Washington, 124 S.Ct 2531 (2004), and awaiting rulings in Booker andFanfan, would cause a tremendous backlog in the criminal calendars of federal courts. (Tr. 6).
"Tr." refers to the transcript page of the hearing on December 22, 2004.
It is the Court's conclusion that the defendant does qualify as a manager or supervisor under § 3.1.1 of the U.S.S.G. She did exercise some control over other people involved in the criminal activity. She recruited Edinson Largo-Hoyas, scheduled his trips to Florida to pick-up drugs and provided his travel funds and tickets, among other activity, which stamped her as a manager or supervisor. A reading of the transcript of the December 22, 2004 hearing clearly discloses that the defendant gave Mr. Largo-Hoyas instructions and that she was responsible for the timing, route and scheduling of his trips. (Tr. 22, 27, 28). The three-level enhancement suggested by the Probation Department, at paragraph 25 of the Presentence Report, is entirely appropriate. Moreover, in paragraph 25 of the Presentence Report, Probation correctly decided that there were some six participants in the conspiracy and the defendant interposed no objection to this latter finding. (Tr. 4).
The defendant is not eligible for "safety valve" treatment under § 5C1.2 of the U.S.S.G. She fails to satisfy two of the five criteria required for such treatment. As pointed-out above, she was a manager and supervisor in the criminal activity here and the criminal enterprise in which she was involved was a continuing one. At one "safety valve" proffer, the defendant indicated "that she was involved in seven drug deliveries from Florida." (Government Letter, January 6, 2005). At the hearing, Mr. Largo-Hoyas testified as to several drug-related trips to Florida. Moreover, a fair reading of the Government submissions discloses that she failed to make full and truthful disclosures at her proffer sessions.
The defendant is not entitled to a downward departure because of "extraordinary family circumstances." ( 5H1.6 of the U.S.S.G.). The Court is well aware of its authority to depart downwardly from the sentencing guidelines if the case is one that is "exceptional" or "out of the heartland." Koon v. United States, 518 U.S. 81 (1996). There is nothing exceptional about the defendant's family circumstances in this case. As is pointed-out in 5H1.6, the applicable Guideline Section, "family ties and responsibilities are not ordinarily relevant in determining whether a departure may be warranted."
The Second Circuit has repeatedly pointed-out:
"[d]isruption of the defendant's life, and the concomitant difficulties for those who depend on the defendant, are inherent in the punishment of incarceration." United States v. Johnson, 964 F.2d 124, 128 (2d Cir. 1992); accord United States v. Galante, 111 F.3d 1029, 1034 (2d Cir. 1997); see also United States v. Londono, 76 F.3d 33, 36 (2d Cir. 1996) ("[i]ncarceration inevitably impacts on family life and family members.")."
Here, we have a 40-year old single-mother, who has an infant child to whom she gave birth while in detention on the instant charge. She also has a 15-year old son, who is with grandparents in Colombia, the defendant's country of origin. As of this writing, the infant is with the defendant's sister and the 15-year old is, as noted, with the grandparents. Any incarceration of this defendant is a veritable train wreck for the children and this is something that does deeply trouble the Court but, from a reading of the Presentence Report, the voluminous submissions of counsel and the full evidentiary hearing on December 22, 2004, it is clear that the defendant was engaged in a conspiracy to distribute at least three and probably about ten kilograms of heroin. Nothing in this record concerning the defendant or her children takes the case "out of the heartland." It is a tragedy caused by the defendant.
The application for a downward departure is denied.
Finally, as to the Government's application to deny the three-level reduction in offense level because defendant has not "clearly demonstrated acceptance of responsibility for her offense," (page 2, January 6, 2005 Government Letter), the application is denied. She may not have completely articulated her full involvement in the conspiracy at the proffer sessions, but she did plead guilty to the exact charge in the indictment and saved the Government the costs of a trial. (Transcript of guilty plea, March 9, 2004, page 12).
As I tried to make clear at the sentencing hearing on December 22, 2004, (Tr. 7), a range of 151 months (12 years, 7 months) to 188 months (15 years, 8 months), is more than adequate scope for punishment in the instant case. Sentencing to more would be "taking blood from a stone." The defendant is, after all, a first offender.
In any event, both sides have a right to appeal my ruling and the sentence that I will impose on January 21, 2005 at 10 A.M.
SO ORDERED.