Opinion
04 Cr. 959 (B2).
June 9, 2006
SENTENCING OPINION
Defendant Maximo Rivera ("Rivera") has pled guilty to conspiracy to distribute and possess with intent to distribute a controlled substance and distribution of and possession with intent to distribute a controlled substance, in violation of 21 U.S.C. §§ 812, 841(b) (1) (C), and 846, both Class C felonies. Under the United States Sentencing Guidelines, Rivera would be sentenced to 30 to 37 months imprisonment. For the reasons set forth below, Rivera is hereby sentenced to a term of imprisonment of time served and to a term of three years' supervised release.
Prior Proceedings
Rivera was arrested by authorities on August 4, 2004 and has been detained since that date. On September 7, 2004, an indictment was filed in the Southern District of New York charging that on October 24, 2003: (1) Rivera and others conspired to distribute and to possess with intent to distribute heroin; and (2) Rivera and others distributed and possessed with intent to distribute heroin.
On September 29, 2005, Rivera appeared before this Court and pled guilty to the charged conduct. His sentencing is scheduled for June 9, 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
Rivera was born in Santurce, Puerto Rico. According to Rivera, during his childhood his parents permitted him to do what he wanted, and since age nine, he "was on the streets." Rivera has completed only a fifth grade education. When Rivera was fourteen years old, his mother allowed him to travel to New York and to live in the Bronx with his aunt.
Rivera has been involved in a consensual relationship since 2003. From this relationship, Rivera has one child, Michaline Rivera, who is two years old.
According to Rivera, he has no history of mental or emotional health problems.
Rivera began using marijuana when he was fourteen years old, smoking approximately $100 dollars worth of the drug weekly. In 1990, when Rivera was 22 or 23 years old, he began using heroin. Rivera's habit consisted of using approximately a bundle (ten glassine envelopes of heroin) per day. Throughout this time, Rivera also abused alcohol. The abuse of all of these substances continued up until his arrest and detention for the instant offenses.
The Offense Conduct
On October 24, 2003, Rivera and his co-defendant, Jose Rivera, sold four grams of heroin to an undercover police officer in exchange for $900 pre-recorded U.S. currency. In addition, Rivera and his co-defendant were involved in a conspiracy to distribute and possess with intent to distribute between 20 and 40 grams of heroin. The specific facts of the underlying conduct are adopted as set forth in the Pre-Sentence Investigation Report dated May 18, 2006.
Relevant Statutory Provisions
The maximum term of imprisonment that may be imposed for Counts One and Two is twenty years per count. See 21 U.S.C. §§ 846, 812, 841(a) (1) and 841(b) (1) (C). If a term of imprisonment is imposed, the Court may impose a term of supervised release of at least three years and up to live, on each count, pursuant to 21 U.S.C. §§ 846, 812, 841(a) (1) and 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. 18 U.S.C. § 3563(a) (2).
The maximum fine that may be imposed for Counts One and Two is $1,000,000 per count, pursuant to 21 U.S.C. §§ 846, 812, 841(a) (1) and 841(b) (1) (C). A special assessment of $100 per count is mandatory. See 18 U.S.C. § 3013.
The Guidelines
The November, 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).
Pursuant to § 3D1.2(d), Counts One and Two are grouped together because they involve acts and transactions constituting part of a common scheme and plan, and because the offense level is determined largely on the basis of some measure of aggregate quantity.
The guideline range for a violation of 21 U.S.C. §§ and 841(b) (1) (C) is found in § 2D1.1. The underlying conduct involved a conspiracy to distribute at least 20 but less than 40 grams of heroin. The offense level specified in the Drug Quantity Table under § 2D1.1(c) (11) sets a base offense level of 18.
Rivera has shown recognition of responsibility for his offenses. Therefore, because his base offense level is 16 or greater, his offense level is reduced by three levels. See § 3E1.1(a) and (b). The resulting adjusted offense level is 15.
Criminal History
On June 3, 1992, Rivera was arrested for attempted criminal sale of a controlled substance in the third degree, an offense to which he pled guilty. This offense results in zero criminal history points.
On February 11, 1993, Rivera was arrested for criminal possession of a weapon in the third degree, to which he pled guilty. This offense results in three criminal history points.
On July 23, 1996, Rivera pled guilty to attempted criminal sale of a controlled substance in the third degree, which results in three criminal history points.
On May 8, 2003, Rivera pled guilty to criminal possession of marijuana in the fifth degree, an offense which results in one criminal history point.
On November 13, 2003, Rivera pled guilty to criminal trespass in the second degree, an offense which results in zero criminal history points.
On February 7, 2004, Rivera pled guilty to menacing in the second degree, an offense which results in one criminal history point.
The total number of criminal history points is eight. According to the sentencing table at Chapter 5, Part A, one criminal history point establishes a Criminal History Category of IV.
Sentencing Options
Based on a total offense level of 15 and a Criminal History Category of IV, the guideline range for imprisonment is 30 to 37 months.
The guideline range for a term of supervised release for the instant offenses is three years per count. See U.S.S.G. § 5D1.2(a) (2). If a sentence of one year or less is imposed a term of supervised release is not required but is optional, pursuant to U.S.S.G. § 5D1.1(b). Supervised release is required if the Court imposes a term of imprisonment of more than one year or when required by statute, pursuant to U.S.S.G. § 5D1.1(a).
Because the applicable guideline range is in Zone D of the Sentencing Table, the defendant is not eligible for probation, pursuant to U.S.S.G. § 5B1.1, application note 2.
The fine range for the instant offenses is from $4,000 to $1,000,000, on each count. See U.S.S.G. § 5E1.2(c) (3) (A) and (c) (4).
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 (2nd 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 § 3553(a) (2) (B). Furthermore, pursuant to § 3553(a) (6), the Court is also mindful of "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."
With respect to the history and characteristics of the Defendant, the Court takes note of Rivera's longstanding addiction to heroin. He has battled with the addiction for many years, and it appears that the underlying conduct, as well as so much of his criminal history, was the result of his need to support this addiction. The Court also takes note of the fact that Rivera has been on his own and "on the street" since he was nine years old and has only a fifth grade education. He has virtually no employment history, and has supported himself by doing odd jobs and selling drugs to feed his habit.
Section 3553(a) (2) (D) also allows the Court to consider the need for the sentence imposed "to provide the defendant with needed . . . medical care, or other corrective treatment in the most effective manner." In accordance with this, it is concluded that Rivera is in greater need of additional drug treatment than additional incarceration. Having considered the factors set forth in section 3553(a), it is determined that a non-guidelines sentence is warranted.
The Sentence
Rivera is hereby sentenced to a term of imprisonment of time served. A sentence of three years' supervised release is also imposed. Rivera 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, Rivera 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 following special conditions of supervised release are also imposed: (1) the defendant shall provide the probation officer with access to any requested financial information; (2) the defendant shall not incur new credit charges or open additional lines of credit without the approval of the probation officer, unless the defendant is in compliance with the compliance payment schedule; and (3) the defendant shall participate in a program approved by the United States Probation Office, which program may included testing to determine whether he has reverted to using drugs or alcohol, as set forth in the Pre-sentence investigation report.
Rivera shall also pay to the United States a special assessment of $200, which shall be due immediately. Due to the defendant's financial condition, the fine in this case is waived.