Opinion
No. 01 CR. 1133 (DLC).
October 19, 2005
MEMORANDUM OPINION AND ORDER
On March 2, 2005, the appeal from the judgment entered in this case was remanded pursuant to the procedure outlined in United States v. Crosby, 397 F.3d 103, 120 (2d Cir. 2005). On March 8, the defendant was required to submit a letter brief indicating whether he wishes to be resentenced, and if so, explaining why the sentence would have been materially different at the time it was originally imposed had the standards enunciated in United States v. Booker, 125 S.Ct. 738 (2005), been in effect at that time. The defendant was assigned new counsel, and after adjournments at the request of counsel, the defendant's request for resentencing was submitted through a letter of August 9. The Government responded through a letter of October 3.
The defendant asks for a resentencing pursuant to 18 U.S.C. § 3553 (a), on the grounds that he has played a significant role in raising his fifteen year old daughter Jasmine, who now lives with a grandparent; that his arrest resulted in the break-up of his wife's home, who was in this country illegally and had to return to Canada; that his son's injury to his finger in May 1999, put financial pressure on the defendant to pay for medical care to repair the finger; and his exemplary adjustment in prison.
Toro was convicted of conspiracy to distribute drugs, in violation of 21 U.S.C. § 841 (b) (1) (A), as a result of his efforts from February through August 2001 to purchase multi-kilogram quantities of cocaine. During proffer sessions following his arrest in 2001, Toro lied repeatedly to the Government about the extent of his involvement. In December 2001, Toro jumped bail and fled to Canada and then Colombia, where he was arrested and then extradited back to the United States in February 2003. Toro pleaded guilty in March 2003, pursuant to aPimentel letter that calculated his offense level at 40 and his guidelines range at 292 to 365 months' imprisonment. The PSR concluded that the offense level was 38, with a guidelines range of 235 to 293 months' imprisonment.
Toro contested certain of the guidelines calculations and sought a downward departure. A Fatico hearing was held to resolve factual disputes. Toro committed perjury during the hearing and, as found at the hearing, had lied in his written submissions provided in advance of the hearing. At sentence, the Court concluded that the offense level should be 35, with a guidelines range of 168 to 210 months' imprisonment. In making this determination, the Court rejected some of Toro's guidelines arguments, and some of the Government's, including its argument that Toro should be held responsible for more than 10 kilograms of cocaine. Toro was sentenced to 168 months in prison.
The sentence imposed upon Toro was reasonable in light of all of the factors enumerated in Section 3553(a), and after appropriate consideration of the guidelines. None of the factors he identifies in this application warrant a resentencing proceeding. Considering in particular the tortured history of this prosecution, the nature and extent of Toro's criminal conduct and his obstruction of justice, and the grounds that he has identified for imposition of a non-guidelines sentence, he has not shown that the sentence originally imposed would have been materially different at the time it was imposed had the guidelines been understood then to be merely advisory.
CONCLUSION
Mario Toro's request for resentencing is denied.
SO ORDERED.