Opinion
04 Cr. 271-02 (RWS).
November 20, 2006
SENTENCING OPINION
On September 15, 2005, defendant Jun Situ ("Situ") pled guilty to one count of conspiring in violation of 21 U.S.C. § 846 to distribute and possess with intent to distribute MDMA (commonly referred to as "Ecstasy") in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C), a Class C felony. For the reasons set forth below, Situ will be sentenced to a term of imprisonment of 40 months, to be followed by a three-year term of supervised release. Situ will also be required to pay a mandatory special assessment of $100.
Prior Proceedings
On March 23, 2004, a seven-count superseding indictment was filed alleging that Situ and other co-defendants engaged in various offenses relating to the distribution of Ecstacy. Situ was arrested on March 31, 2004, and has been detained without bail since his arrest. On July 6, 2004, a second superseding indictment was filed with respect to Situ and the other co-defendants.
On September 15, 2005, Situ appeared before this Court and pled guilty to the offense charged in the seventh count of the second superseding indictment in accordance with a plea agreement entered into with the Government. Situ's guilty plea was accepted by this Court, and he is scheduled to be sentenced on November 20, 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") established 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 following description draws on the Pre-Sentence Investigation Report prepared by the Probation Office of the United States District Court for the Southern District of New York on July 5, 2006, and revised on July 31, 2006 ("the PSI"). Additional facts regarding Situ's history and characteristics are adopted as set forth in that report.
Jun Situ was born in China in 1970. His parents and only sibling currently reside in London, England.
Situ married a permanent resident of the United States in 1994. The following year, he received a visa to enter the United States as a permanent resident in order to reside with his wife. The couple divorced in 1997.
In 2001, Situ began a relationship with another woman with whom he has a two-year-old son. His son was born approximately one month after Situ was incarcerated for the instant offense. His child's mother has been forced to borrow money from friends in order to support herself and their son. The mother and son are currently residing with the mother's parents.
While living in the United States, Situ reports having held a variety of jobs, including working in various garment factories in Manhattan, delivering cosmetics, and even owning and operating his own food-mart. Situ has not received any education since entering the United States. He attended school in China only until the eleventh grade. The Offense Conduct
The specific facts of the underlying conduct are adopted as set forth in the PSI.
Between June 2003 and March 2004, Situ conspired with co-defendants to distribute approximately 3,000 Ecstacy pills to various individuals. These transactions all occurred in this district.
The Relevant Statutory Provisions
The maximum term of imprisonment is twenty years, pursuant to 21 U.S.C. §§ 841(b)(1)(C) and 846. In addition, a term of at least three years' supervised release is required if a sentence of imprisonment is imposed, pursuant to 21 U.S.C. §§ 841(b)(1)(C) and 846.
Situ is eligible for not less than one nor more than five years' probation, pursuant to 18 U.S.C. § 3561(c)(1). Because the offense is a felony, pursuant to 18 U.S.C. § 3563(a)(2), one of the following must be imposed as a condition of probation unless extraordinary circumstances exist: a fine, restitution, or community service.
Pursuant to the Violent Crime Control and Law Enforcement Act of 1994, all offenders on probation, parole or supervised release for offenses committed after September 13, 1994, are required to 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 maximum fine is $1,000,000, pursuant to 21 U.S.C. §§ 841(b)(1)(C) and 846. A special assessment in the amount of $100 is mandatory, pursuant to 18 U.S.C. § 3013.
Pursuant to 21 U.S.C. § 862(a)(1)(A), upon a first conviction for distribution of a controlled substance, a defendant may be declared ineligible for any or all Federal benefits for up to five years as determined by the court.
The Guidelines
The November 1, 2006, edition of the United States Sentencing Commission Guidelines Manual has been used in this case for calculation purposes, pursuant to U.S.S.G. § 1B1.11(a).
The Guideline for violations of 21 U.S.C. § 841(b)(1)(C) is found in U.S.S.G. § 2D1.1. Pursuant to Application Note 10 of U.S.S.G. § 2D1.1, in order to establish the appropriate offense level, the quantity of Ecstacy involved in this offense must be converted into its marijuana equivalent. Based on the PSI, Situ is responsible for conspiring to distribute and possess with the intent to distribute approximately 3,000 Ecstacy pills, the marijuana equivalent of which is 375 kilograms. According to U.S.S.G. § 2D1.1(a)(3) and (c)(4), this amount of Ecstacy results in a base offense level of 26.
Based on the Drug Quantity Table, one gram of Ecstacy is the equivalent of 500 grams of marijuana. The typical weight of an Ecstacy pill is 250 mgs.
Based on the PSI, Situ has shown recognition of responsibility for the offense. Pursuant to U.S.S.G. § 3E1.1(a), the offense is therefore reduced two levels. Further, because Situ's timely notification of his intention to plead guilty has allowed the Government to allocate its resources more efficiently, and because the offense level is 16 or greater, the offense level is reduced one additional level, pursuant to U.S.S.G. § 3E1.1(b).
Situ has no known criminal convictions. Thus, Situ has a Criminal History Category of I.
Based on a total adjusted offense level of 23 and a Criminal History Category of I, the Guidelines range for imprisonment is 46 to 57 months.
The Guidelines range for a term of supervised release is a minimum of three years, as required by statute, pursuant to U.S.S.G. § 5D1.2(c).
Because the applicable Guidelines range is in Zone D of the Sentencing Table, Situ is not eligible for probation, pursuant to U.S.S.G. §§ 5B1.1, application note 2.
The Guidelines fine range for the instant offense is from $10,000 to $1,000,000, pursuant to U.S.S.G. § 5E1.2(c)(3)(A) and (c)(4). Subject to the defendant's ability to pay, in imposing a fine pursuant to U.S.S.G. § 5E1.2(d)(7), the Court shall consider the expected costs to the Government of any imprisonment, probation, or supervised release. 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 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) in order to impose a sentence "sufficient, but not greater than necessary," as is required in accordance with the Supreme Court's decision in Booker, 543 U.S. 220, and the Second Circuit's decision in Crosby, 397 F.3d 103. In particular, § 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 § 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."
Having considered all the factors set forth in § 3553(a), it is determined that a sentence below the applicable Guidelines range is warranted in the instant case. In particular, considering the history and characteristics of the defendant pursuant to § 3553(a)(1) and the need for the sentence to provide adequate general and specific deterrence pursuant to § 3553(a)(2)(B), a below-Guidelines sentence would be appropriate. Situ has no prior criminal convictions and has not been incarcerated prior to the instant offense. See, e.g., United States v. Cheah, No. 04 Cr. 271-05 (RWS), 2006 WL 3208560, at *4 (S.D.N.Y. Nov. 2, 2006);United States v. Bidon, No. 05 Cr. 1285-01 (RWS), 2006 WL 3025876, at *5 (S.D.N.Y. Oct. 24, 2006); United States v. Harding, No. 05 Cr. 1285-02 (RWS), 2006 WL 2850261, at *5 (S.D.N.Y. Sept. 28, 2006); United States v. Hernandez, No. 03 Cr. 1257-03 (RWS), 2006 WL 870933, at *4 (S.D.N.Y. Apr. 5, 2006);United States v. Arreaga, No. S303 Cr. 1121-02 (RWS), 2006 WL 278156, at *7 (S.D.N.Y. Feb. 2, 2006).
The Sentence
For the instant offense, Situ is hereby sentenced to a term of imprisonment of 40 months, to be followed by a three-year term of supervised release. In addition, Situ is to pay a mandatory special assessment of $100, which shall be due immediately.
The Court recommends that the Bureau of Prisons make available to the defendant all drug programming for which he is eligible.
Situ is directed to report to the nearest United States Probation Office within seventy-two hours of release from custody to commence a three-year term of supervised release. It is recommended that Situ be supervised by the district of his residence.
As mandatory conditions of his supervised release, Situ 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.
The standard conditions of supervision (1-13) shall be imposed, along with the following special conditions:
(1) Situ will 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. Situ shall 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) Situ shall obey the immigration laws and comply with the directives of immigration authorities.
In consideration of all the factors set forth in 18 U.S.C. § 3572(a), it does not appear that the defendant is able to pay a fine, and the fine in this case shall therefore be waived. 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 set for November 20, 2006.
It is so ordered.