Opinion
99 Cr. 874 (RWS)
May 25, 2000
SENTENCING OPINION
Defendant Osvaldo Ceferino Borbon-Vasquez ("Borbon-Vasquez") pled guilty on December 14, 1999 to one count of illegally reentering the United States after deportation subsequent to commission of an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2). For the reasons set forth below, Borbon-Vasquez will be sentenced to 77 months of imprisonment to run concurrently with an undischarged state sentence which Borbon-Vasquez is currently serving, followed by three years of supervised release, subject to the hearing now set for May 25, 2000. Pursuant to 18 U.S.C. § 3013, a special assessment of $100.00 is mandatory.
Background
Borbon-Vasquez is a citizen of the Dominican Republic, where he was born in 1963. In the 1970's, his father emigrated to the United States. Borbon-Vasquez and his siblings followed in 1975. His mother joined the family in 1977 in Upper Manhattan, where they resided. His parents have since become United States citizens.
Borbon-Vasquez dropped out of school in 1980. He did not complete the tenth grade. From that point until 1995, he was in and out of prison for various convictions, including weapons possession, burglary, and grand larceny. He also had a serious problem with alcohol and drug addiction, including marijuana, heroin, and powder and crack cocaine. On October 19, 1995, he was paroled, from a sentence he was serving for attempted grand larceny in the fourth degree, to the Immigration and Naturalization Service, which deported him to the Dominican Republic on October 26, 1995, with the condition that he could not reenter the United States without first applying for permission to do so from the U.S. Attorney General. Apparently, no member of Borbon-Vasquez's immediate family resides in the Dominican Republic; all are in the United States.
Nine days after his deportation, Borbon-Vasquez reentered the United States by flying to Miami airport and presenting his previously-issued "green card." He did not apply for permission to reenter. He returned to his family's residence in Upper Manhattan. On April 24, 1996, he was arrested for attempted criminal sale of a controlled substance in the third degree, a crime to which he pled guilty and was convicted on May 12, 1997 in New York Supreme Court, resulting in an indeterminate sentence of three to six years.
The Presentence Report does not indicate why Borbon-Vasquez was not detained at the Miami airport.
On September 7, 1999, the one-count indictment in the instant case was filed. Borbon-Vasquez pled guilty to the charge of illegal reentry on December 14, 1999.
The Guidelines
The Presentence Report and Addendum prepared by the U.S. Probation Office grades Borbon-Vasquez's offense conduct under the United States Sentencing Guidelines (the "Guidelines") at a base offense level of 8, from which a 16-level increase is warranted, pursuant to Guidelines Section 2L1.2(b)(1)(A), and from which a 2-level reduction, pursuant to § 3E1.1(a), and a 1-level reduction, pursuant to § 3E1.1(b)(2), are warranted. These modifications result in a combined offense level of 21. Borbon-Vasquez is assigned a Guidelines Criminal History Category of VI. The Guidelines range for an offender with a total offense level of 21 and a Criminal History Category of VI is 77 to 96 months.
The Presentence Investigation Report issued by the U.S. Probation Office of this District recommends a sentence of 77 months followed by a term of supervised release of three years.
Imposition of a Concurrent Sentence
Borbon-Vasquez requests that his sentence run concurrently with the sentence he is currently serving for the conviction in New York Supreme Court of the attempted sale of a controlled substance. He seeks this relief pursuant to Guidelines § 5G1.3, which governs sentencing of defendants who are already subject to an undischarged term of imprisonment.
The language of Guidelines § 5G1.3 is as follows:
(a) If the instant offense was committed while the defendant was serving a term of imprisonment (including work release, furlough, or escape status) or after sentencing for, but before commencing service of, such term of imprisonment, the sentence for the instant offense shall be imposed to run consecutively to the undischarged term of imprisonment.
(b) If subsection (a) does not apply, and the undischarged term of imprisonment resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment.
(c) (Policy Statement) In any other case, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.
"Subsection (c), which is a catch-all provision, generally vests broad discretion in the sentencing court in those situations not governed by subsections (a) and (b)" United States v. Maria, 186 F.3d 65, 71 (2nd Cir. 1999); see United States v. Velasquez, 136 F.3d 921, 923 (2nd Cir. 1998) (abuse of discretion standard applies to appellate review of district court sentencing decisions under § 5G1.3(c)).
The Government opposes the request for a concurrent sentence on the grounds that the conviction in the instant case — illegal reentry — is completely unrelated to the state conviction for attempted sale of a controlled substance. The language of § 5G1.3 suggests, however, that the two convictions need not be related in order for the court to impose a concurrent sentence under 5G1.3(c). Indeed, § 5G1.3(b) mandates the imposition of a concurrent sentence where the undischarged term of imprisonment has "resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense." § 5G1.3(c) applies "[i]n any other case." Logically, then, § 5G1.3(c) would apply both to cases in which the conviction for which the defendant is serving a term of imprisonment is partially related to the conviction for which the defendant is awaiting sentencing, and to cases in which the conviction for which the defendant is serving a term of imprisonment is not related at all to the conviction for which the defendant is awaiting sentencing.
The sole case cited by the Government in support of its position, United States v. Polanco-Ovalle, 98 Cr. 766, 1999 WL 370638 (S.D.N.Y. June 7, 1999) is easily distinguished. While the facts of that case — a deported Dominican national who illegally reentered the United States and was convicted soon thereafter in New York Supreme Court on a charge of narcotics possession and was later convicted on a federal illegal reentry charge — are similar to those in the instant case, the defendant inPolanco-Ovalle had already completed serving his term of imprisonment for the state conviction when he was sentenced for the illegal reentry conviction, and thus § 5G1.3 was not available to him. Rather, he applied for a downward departure under § 5K2.0, relying on § 5G1.3 as guidance. This argument was rejected by the court. See id. at *2. The court did indicate, however, that even were the court permitted to downwardly depart on such a ground, it would not do so, because the two crimes were unrelated and the state conviction did not make the illegal reentry crime "any less serious." Id. at *2 n. 2, *3. This merely indicates the court's exercise of its discretion in the individual case, and does not compel a similar result here.
The Guidelines Commentary to § 5G1.3(c) directs the court to:
consider the factors set forth in 18 U.S.C. § 3584 (referencing 18 U.S.C. § 3553(a)) and be cognizant of:
(a) the type (e.g., determinate, indeterminate/parolable) and length of the prior undischarged sentence; (b) the time served on the undischarged sentence and the time likely to be served before release; (c) the fact that the prior undischarged sentence may have been imposed in state court rather than federal court, or at a different time before the same or different federal court; and (d) any other circumstance relevant to the determination of an appropriate sentence for the instant offense.
The factors under 18 U.S.C. § 3553 include the nature and circumstances of the offense; the history and characteristics of the offender; and the need for sentence to provide just punishment, adequate deterrence, and needed rehabilitation. See 18 U.S.C. § 3553.
Prior to the most recent amendment of § 5G1.3 in 1995, the commentary to § 5G1.3 provided that sentencing courts could determine whether to impose fully or partially concurrent sentences based on an approximation of the total punishment that would have resulted if all offenses had been consolidated for sentencing. See Guidelines App. C, Amend. 535; United States v. Whiteley, 54 F.3d 85, 90 (2nd Cir. 1995). Under the previous commentary, this court would have had the discretion to apply the multi-count grouping rules in Guidelines §§ 3D1.1- 3D1.4. Although the 1995 amendment to § 5G1.3 eliminated the multi-count grouping rules as a preferred methodology in favor of a broader, more discretionary, multi-factor analysis, a sentencing court may still consider the former method in the exercise of its discretion. See United States v. Smith, Nos. 96-1687, 97-1172, 1997 WL 701360, at *4 (2nd Cir. Nov. 10, 1997) (unpublished opinion); c.f. Velasquez, 136 F.3d at 924.
Applying the multi-count grouping rules would have resulted in no additional penalty for Borbon-Vasquez due to his drug offense. Under the grouping rules set forth in Guidelines § 3D1.1-.4, the drug and illegal reentry offenses are each considered a separate group. The drug offense would constitute a level 12 offense, pursuant to § 2D1.1. The illegal reentry level is 24, as noted above. Under § 3D1.4, because the drug offense is more than nine levels less serious than the illegal reentry offense, it is disregarded in the calculation of the total offense level. Thus, had Borbon-Vasquez been sentenced at the same time for the two offenses, he would not have received a longer sentence than he would have simply for the illegal reentry charge.
The Court recognizes that illegal reentry is not a trivial offense. Nevertheless, the goals of deterrence and punishment will be adequately served by ordering that the sentence for illegal reentry run concurrently with Borbon-Vasquez's undischarged drug sentence. Cognizant of the aforementioned factors, given Borbon-Vasquez's history as a person who emigrated to the United States as a child, whose parents have become United States citizens, who does not appear to have any immediate family in the Dominican Republic, and who has a long history of substance abuse, and given the possible disparity in the length of his sentence because he was not charged with and sentenced on the state offense and the illegal reentry offense simultaneously, the Court does not find that the goals of reasonable punishment, deterrence, and rehabilitation will be served by adding nearly six-and-a-half more years of prison time. Even with the sentences running concurrently, Vasquez will still serve considerable additional time, enough to constitute reasonable punishment.
The Sentence
Borbon-Vasquez will be sentenced to 77 months of imprisonment, to run concurrently with his undischarged state sentence, plus three years of supervised release. As conditions of his supervised release, Borbon-Vasquez shall abide by the Mandatory, Standard, and Special Conditions of Supervision outlined in the Presentence Report.
An assessment of $100.00 is mandatory. This sentence is subject to the sentencing hearing now set for May 25, 2000.
It is so ordered.