Opinion
S2 04 Cr. 271-09 (RWS).
June 3, 2006
SENTENCING OPINION
Defendant David Yuen ("Yuen") has pled guilty to conspiracy to possess and to possess with intent to distribute MDMA (commonly referred to as "Ecstasy") in violation of 21 U.S.C. § 846, a Class C felony. Yuen is hereby sentenced to a term of imprisonment of 57 months and to a term of 3 years' supervised release.
Prior Proceedings
On March 23, 2004, a seven-count superseding indictment was filed alleging that Yuen and nine other co-defendants engaged in various offenses relating to the distribution of Ecstacy. On March 30, 2004, Yuen was arrested. He remains in custody.
On July 6, 2004, a second superseding indictment was filed with respect to Yuen and the other co-defendants. On February 24, 2005, Yuen allocuted before the Honorable Kevin N. Fox to the offense charged in the seventh count of the second superseding indictment, and Judge Fox recommended that his guilty plea be accepted. Sentencing is scheduled for June 13, 2006 before this Court.
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
The characteristics of the defendant are adopted as set forth in the Pre-Sentence Investigation Report dated December 6, 2005.
The Offense Conduct
Between June 2003 and March 2004, Yuen conspired with co-defendants to distribute 5,000 Ecstacy pills to various individuals. These transactions all occurred in this district.
Relevant Statutory Provisions
The maximum term of imprisonment that may be imposed for the instant offense is 20 years. See 21 U.S.C. §§ 846 and 841(b) (1) (C).
A term of at least 3 years of supervised release is required if a sentence of imprisonment is imposed. See 21 U.S.C. §§ 846 and 841(b) (1) (C).
Yuen is eligible for not less than 1 nor more than 5 years of probation. 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. See 18 U.S.C. § 3563(a) (2).
The maximum fine that may be imposed for the instant offense is $1 million. See 21 U.S.C. §§ 846 and 841(b) (1) (C). A special assessment of $100 is mandatory. See 18 U.S.C. § 3013.
The Guidelines
The November 1, 2004 edition of the United States Sentencing Commission Guidelines Manual ("the Guidelines") has been used in this case for calculation purposes. See § 1B1.11.
In the instant offense, Yuen conspired to distribute 5,000 Ecstacy pills. In order to establish the appropriate offense level, this quantity of Ecstacy must be converted into its marijuana equivalent. See § 2D1.1, Application Note 10. For calculation purposes, it is assumed that one Ecstacy pill contains 250 milligrams of MDMA, Ecstacy's active ingredient.See id., Application Note 11. Therefore, the total amount of MDMA involved in this offense is deemed to be 1250 grams. One gram of MDMA is deemed equivalent to 500 grams of marijuana.See id. (Drug Equivalency Tables). Therefore, Yuen's offense involved the equivalent of 625 kilograms of marijuana. See id. The base offense level for an offense involving this quantity of marijuana is 28. See § 2D1.1(c) (6).
Based on his plea allocution, Yuen has shown recognition of responsibility for the offense. Because of his timely notification of his intention to plead guilty, thus allowing the Government to allocate its resources more efficiently, and because the aforementioned base offense level is 16 or greater, the offense is reduced 3 levels. See §§ 3E1.1(a) and 3E1.1(b).
Based on the foregoing, Yuen's adjusted offense level is 25.
Criminal History
Yuen has no known criminal convictions. Therefore, he has zero criminal history points and a Criminal History Category of I.
Sentencing Options
Based on a total offense level of 25 and a Criminal History Category of I, the guideline range for imprisonment is 57 to 71 months. See Ch. 5 Pt. A (Sentencing Table).
Because the applicable guideline range is in Zone D of the Sentencing Table, Yuen is not eligible for probation. See § 5B1.1, Application Note 2.
The guideline range for a term of supervised release is three years, the minimum required by statute. See § 5D1.2(b).
The fine range for the instant offense is $5,000 to $1,000,000.See §§ 5E1.2(c) (3) (A) and 5E1.2(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."
Taking the aforementioned factors into account, it is concluded that a guideline sentence is warranted in the instant case.
The Sentence
Yuen is hereby sentenced to a term of imprisonment of 57 months.
A sentence of three years' supervised release is also imposed. Yuen 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, Yuen 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; an (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 participate in a substance abuse treatment program approved by the United States Probation Office to include testing to determine whether the defendant reverts to using drugs or alcohol; and (2) the defendant shall submit his person, residence, place of business, vehicle, or any other premises under his control to a search on the basis that the probation officer has reasonable belief that contraband or evidence of a violation of the conditions of release may be found.
Based on an analysis of Yuen's financial resources, no fine shall be imposed. However, a special assessment of $100, which is payable to the United States, is due immediately.
This sentence is subject to modification at the sentencing hearing currently scheduled for June 13, 2006.
It is so ordered.