Opinion
06 Cr. 286 (RWS).
November 13, 2006
SENTENCING OPINION
On August 1, 2006, Defendant Abdul Timite ("Timite") pled guilty to one count of conspiracy to commit bank fraud. For the reasons set forth below, Timite will be sentenced to 366 days' imprisonment, to be followed by a three-year term of supervised release. Timite also will be required to pay a special assessment of $100.
Prior Proceedings
Timite was arrested on January 24, 2006, and has remained in custody without bail since that time. An indictment was filed in the Southern District of New York on March 27, 2006, charging that Timite and others known and unknown conspired to commit bank fraud in violation of 18 U.S.C. §§ 1344 and 1349. On August 1, 2006, Timite appeared before the Honorable James C. Francis of this District and pled guilty to his criminal conduct as charged in the indictment. Defendant's sentencing is scheduled for November 14, 2006.
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 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 114-15.
The Defendant
The Court adopts the facts set forth in the Probation Department's Presentence Investigation Report ("PSR") with respect to Timite's personal and family history.
The Offense Conduct
Timite and a co-conspirator provided three counterfeit cashier's checks to an individual whom they believed had a contact at Bank of America in New York City who could deposit the checks and withdraw the funds soon after. One check was made out in the amount of $80,000, while the other two checks were made out in the amount of $20,000 each. The Government used a cooperating witness to intercept the fake checks before they were cashed.
The Relevant Statutory Provisions
The maximum term of imprisonment is thirty years, pursuant to 18 U.S.C. §§ 1344 and 1349.
If a sentence of imprisonment is imposed, a term of up to five years' supervised release is authorized, pursuant to 18 U.S.C. § 3583(b)(1).
Timite is not eligible for probation because the instant offense is a Class B felony, pursuant to 18 U.S.C. § 3561(a)(1).
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 for is $1,000,000, pursuant to 18 U.S.C. § 1344.
A special assessment in the amount of $100 is mandatory. 18 U.S.C. § 3013.
The Guidelines
The March 27, 2006 edition of the United States Sentencing Commission Guidelines Manual has been used in this case for calculation purposes, pursuant to section 1B1.11(a).
The Guideline for violations of 18 U.S.C. §§ 1344 and 1349 is found in section 2B1.1. Because the offense of conviction has a statutory maximum term of imprisonment of twenty years or more, the base offense level is 7. U.S.S.G. § 2B1.1(a)(1). There is an eight-level increase because the intended loss exceeded $70,000. U.S.S.G. § 2B1.1(b)(1)(E) and cmt. 3.
Based on his guilty plea, Timite has shown recognition of responsibility for the offense, and the offense level therefore is reduced two levels. U.S.S.G. § 3E1.1(a). Timite's resulting adjusted offense level is 13.
Timite has no known prior criminal convictions, and therefore has a Criminal History Category of I.
Based on a total offense level of 13 and a Criminal History Category of I, the Guidelines range for imprisonment is twelve to eighteen months.
Pursuant to U.S.S.G. § 5D1.1(a), supervised release shall be ordered if a sentence of imprisonment of more than one year is imposed. If a term of supervised release is imposed, it shall be for at least three years but not more than five years. U.S.S.G. § 5D1.2(a)(1).
A term of probation is not authorized because the instant offense is a Class B felony, pursuant to U.S.S.G. § 5B1.1(b)(1).
The fine range for the instant offense is from $3,000 to $1,000,000. U.S.S.G. § 5E1.2(c)(1), (c)(4). 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. U.S.S.G. § 5E1.2(d)(7). The most recent advisory from the Administrative Office of the United States Courts suggests a monthly cost of $1,952.66 to be used for imprisonment, a monthly cost of $287.50 for supervision, and a monthly cost of $1,736.98 for community confinement. The Remaining Factors of 18 U.S.C. § 3553(a)
Having engaged in the Guideline analysis, this Court also gives due consideration to the remaining factors identified in 18 U.S.C. § 3 553(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. Pursuant to all of the factors, it is hereby determined that a guideline sentence is warranted.
The Sentence
For the instant offense, Timite is hereby sentenced to 366 days' imprisonment, followed by a three-year term of supervised release.
Since Timite has been detained without bail since his arrest, he is not a candidate for voluntary surrender. 18 U.S.C. § 3143(a)(2). Timite is directed to report to the nearest Probation Office within seventy-two hours of release from custody. It is recommended that the Defendant be supervised by the district of residence.
As mandatory conditions of his supervised release, Timite 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 based upon the Court's determination that the defendant poses a low risk of future substance abuse.
Furthermore, the standard conditions of supervision (1-13) shall be imposed with the following special conditions: Timite shall (1) provide the probation officer with access to any requested financial information, (2) not incur new credit card charges or open additional lines of credit without the approval of the probation officer unless the defendant is in compliance with the installment payment schedule, and (3) obey the immigration laws and cooperate with officials of the Bureau of Immigration and Customs Enforcement.
In consideration of all the factors set forth in 18 U.S.C. § 3572(a), it does not appear that the defendant has any assets with which to pay a fine, so the fine in this case shall 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 scheduled for November 14, 2006.
It is so ordered.