Opinion
04 Cr. 1228-07 (RWS).
November 16, 2007
SENTENCING OPINION
On September 17, 2007, Javier Armas-Reyes ("Armas-Reyes" or the "Defendant") pleaded guilty to one count of conspiracy to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. § 846 ("Count I") and one count of conspiracy to import heroin in violation of 21 U.S.C. § 963 ("Count II"). For the reasons set forth below, Armas-Reyes will be sentenced to 46 months' imprisonment on each count, to run concurrently, and three years' supervised release on each count, also to run concurrently. Armas-Reyes also will be required to pay a special assessment of $200 and will be jointly and severally liable with his convicted co-defendants for the forfeiture of $2,250,000.
To avoid confusion, the Court notes that Count II was actually the fourth count listed in the charging instrument. The Defendant did not plead guilty to the second or third counts.
Prior Proceedings
On November 18, 2004, in the Southern District of New York, the Grand Jury issued a sealed indictment charging Armas-Reyes with Counts I and II, and two additional counts of distribution and possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A). The indictment was unsealed and a warrant was issued for the Defendant's arrest on February 15, 2005.
On September 14, 2007, before the Honorable Douglas F. Eaton, Armas-Reyes entered a plea of guilty to Count I and II. The Court accepted Defendant's plea on September 27, 2007.
Defendant's sentencing is scheduled for November 19, 2007.
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 Armas-Reyes's personal and family history.
The Offense Conduct
The following description draws on the PSR. The specific facts of the underlying conduct are adopted as set forth in that report.
Armas-Reyes's conduct involved participation in a drug trafficking organization ("DTO") based in Guatemala. The DTO sent heroin to the United States, and that heroin was later transported to and distributed in the New York metropolitan area between approximately October 2003 and June 2004. The government investigation of this DTO involved court-authorized interception of telephone conversations over cell phones used by individuals in New York and Guatemala.
In approximately June 2004, government agents arrested numerous individuals in the New York area who were involved in the distribution of the DTO's narcotics. In February 2005, with the assistance of authorities in Guatemala, several individuals from the DTO were arrested in Guatemala pursuant to an Indictment filed in the Southern District of New York.
Carlos Enrique Gonzalez-Hoyos ("Gonzalez-Hoyos"), Edgar Nicholas Romero-Ganan ("Romero-Ganan"), and Alirio Munoz-Munoz ("Munoz-Munoz"), all Colombian citizens, were the leaders of the conspiracy and controlled the operations of the DTO from prison in Colombia. Ermires Moran-Divas ("Moran-Divas") served as the head of operations in Guatemala. Jorge Sanchez-Aldecoa ("Sanchez-Aldecoa") worked for Moran-Divas as a transporter. Luis Lemus ("Lemus") and Armas-Reyes also worked as transporters of drugs and/or drug proceeds.
On April 22, 2004, Armas-Reyes attended a meeting in the Bronx, New York, regarding collecting narcotics proceeds to be transported to Guatemala.
On May 4, 2004, Armas-Reyes possessed approximately $43,000 in narcotics proceeds, concealed in a car, which he was going to transport to co-conspirators.
According to the Government, Armas-Reyes is responsible for his participation in the distribution and importation of between 1 and 3 kilograms of heroin. Armas-Reyes also collected narcotics proceeds from the New York area and delivered them to Moran-Divas.
Armas-Reyes was arrested on February 15, 2005 in Guatemala and extradited to the United States on March 27, 2007.
The Relevant Statutory Provisions
For Counts I and II, the mandatory minimum term of imprisonment is 10 years, with a maximum of life imprisonment, pursuant to 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 21 U.S.C. §§ 812, 846, and 963. Pursuant to the provisions of 18 U.S.C. § 3553(f), the Defendant appears to meet the criteria for imposition of a sentence in accordance with the applicable guidelines, without regard to any statutory minimum sentence.
For each count, if a sentence of imprisonment is imposed, the Court may impose a term of supervised release of five years to life, pursuant to 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 21 U.S.C. §§ 846 and 963.
Armas-Reyes is not eligible for probation because each Count is a Class A felony, pursuant to 18 U.S.C. § 3561(a)(1), and the instant offenses are ones for which probation has been expressly precluded by statute, pursuant to 18 U.S.C. § 3561(a)(2) and 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), 846, 960(b)(1)(A), and 963.
For each count, the maximum fine is $4,000,000, pursuant to 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 21 U.S.C. §§ 846 and 963. A special assessment in the amount of $200 is mandatory, pursuant to 18 U.S.C. § 3013.
The Guidelines
The November 1, 2007 edition of the United States Sentencing Commission Guidelines Manual has been used in this case for calculation purposes, pursuant to § 1B1.11(a).
Pursuant to § 3D1.2(d), Counts I and II are grouped together.
The guideline for violation of 21 U.S.C. §§ 846 and 963 is found in § 2D1.1. The Government has stated that Armas-Reyes's criminal activity involved the trafficking of between one and three kilograms of heroin, which results in a base offense level of 32, pursuant to § 2D1.1(c)(4). However, as the defendant receives an adjustment under § 3B1.2 and the base offense level is 32, a decrease of two-levels is warranted pursuant to § 2D1.1(a)(3)(A) and (a)(3)(B)(i), which results in a base offense level of 30.
Since the Defendant appears to meet the criteria set forth in subdivisions (1)-(5) of subsection (a) of § 5C1.2(a), pursuant to § 2D1.1(b)(11), a two-level decrease is warranted.
According to the Government, Armas-Reyes was a minor participant in the overall narcotics trafficking conspiracy. As such, a two-level reduction is warranted, pursuant to § 3B1.2(b).
Based on his plea allocution, Armas-Reyes has shown recognition of responsibility for the offense. Based on his timely notification of his intention to plead guilty and because the base offense level is 16 or greater, the offense level is reduced by three levels pursuant to § 3E1.1(a) and (b). The resulting adjusted offense level is 23.
Armas-Reyes has no known criminal convictions. Pursuant to § 4A1.2, Armas-Reyes has a zero criminal history points and a Criminal History Category of I.
Based on a total 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 five years, the minimum required by statute, pursuant to § 5D1.2(c). Application note number 2 of § 5D1.2 provides that a defendant who qualifies under § 5C1.2 is not subject to any statutory minimum sentence of supervised release. The guideline range for a term of supervised release is therefore three to five years, pursuant to § 5D1.2(a)(1).
The defendant is not eligible for probation because the instant offense is one for which probation has been expressly precluded by statute, pursuant to § 5B1.1(b)(2).
The fine range for the instant offense is from $10,000 to $4,000,000, pursuant to § 5E1.2(c)(1) and (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, pursuant to § 5E1.2(d)(7). The most recent advisory from the Administrative Office of the United States Courts suggests a monthly cost of $2,036.92 to be used for imprisonment, a monthly cost of $294.60 for supervision, and a monthly cost of $1,799.04 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. Pursuant to all of the factors, it is hereby determined that a sentence within the Guidelines framework is warranted.
The Sentence
For the instant offense, Armas-Reyes will be sentenced to 46 months' imprisonment on each count, to run concurrently, and a three-year term of supervised release on each count, also to run concurrently.
Armas-Reyes 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 Armas-Reyes be supervised by the district of his residence.
As mandatory conditions of his supervised release, Armas-Reyes 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; (4) cooperate in the collection of DNA as directed by the probation officer; and (5) submit to one drug test within 15 days of release on probation and two periodic drug tests thereafter for use of a controlled substance.
Furthermore, the standard conditions of supervision (1-13), set forth in the judgment, shall be imposed with the additional special conditions that:
(1) 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 the release may be found. The search must be conducted at a reasonable time and in a reasonable manner. Failure to submit to a search may be grounds for revocation. The defendant shall inform any other residents that the premises may be subject to search pursuant to this condition.
(2) The defendant 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 so the fine in this case shall be waived. In addition, Armas-Reyes shall forfeit to the United States any and all property constituting and derived from any proceeds he obtained directly or indirectly as a result of the conduct to which he allocated, including approximately $2,250,000, representing the amount of proceeds obtained as a result of the offenses, for which Armas-Reyes is jointly and severally liable with his convicted co-defendants. A special assessment of $200, 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 19, 2007.
It is so ordered.