Opinion
03 Cr. 835 (RWS).
February 23, 2007
AMENDED SENTENCING OPINION
Defendant Juan Castillo ("Castillo") has pled guilty to the three charges contained in the indictment filed on June 7, 2003. The indictment charges that Castillo: (1) conspired to distribute narcotics in violation of 21 U.S.C. § 846 (a Class A Felony), (2) distributed crack and possessed crack with intent to distribute in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A) (a Class A Felony), and (3) distributed cocaine and possessed cocaine with intent to distribute in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A)) (a Class A Felony). For each of these counts, Castillo was sentenced to a separate 87-month term of incarceration to be followed by a separate three-year term of supervised release. United States v. Castillo, No. 03 Cr. 835(RWS), 2005 WL 1214280 (S.D.N.Y. May 20, 2005). All terms of incarceration and all terms of supervised release were to run concurrently. Id. Castillo was also required to pay a mandatory special assessment of $300. Id. On appeal, the Second Circuit reversed the sentence and remanded for further proceedings. United States v. Castillo, 460 F.3d 337 (2d Cir. 2006).
For the reasons set forth below, Castillo will be resentenced to a separate 111-month term of incarceration for each of the three counts, to be followed by a separate three-year term of supervised release. All terms of incarceration and all terms of supervised release shall run concurrently. In addition, the mandatory special assessment of $300 will continue to apply.
Prior Proceedings
A complaint alleging that Castillo had violated 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846 and 18 U.S.C. § 2 was signed by the Honorable Andrew J. Peck of this district on May 29, 2003. A warrant was issued for Castillo's arrest that same day, and Castillo was arrested on June 9, 2003. On June 10, 2003, an order of detention as to Castillo was signed by the Honorable Debra C. Freeman of this district. On June 7, 2003, the indictment was filed. On June 11, 2003, Castillo pled not guilty to the three counts contained in the indictment. On March 24, 2004, Castillo allocuted to the three counts contained in the indictment before the Honorable Kevin N. Fox of this district. Castillo's guilty plea allocution was accepted by this Court on April 6, 2004. By letters dated September 7, 2004, and May 3, 2005, Castillo's counsel raised issues concerning his sentence. In response to the issues raised in those letters, the Government submitted a letter concerning Castillo's sentence on May 13, 2005.
In the written sentencing opinion issued prior to Castillo's previous sentencing hearing in May 2005, this Court determined that pursuant to 18 U.S.C. § 3553(a)(6), a sentence below that recommended by the U.S. Sentencing Guidelines (the "Guidelines") was appropriate to avoid the unwarranted sentencing disparities between crack and powder cocaine sentences imposed under the Guidelines. Castillo, 2005 WL 1214280, at *5 (citing Simon v. United States, 361 F. Supp. 2d 35 (E.D.N.Y. 2005); United States v. Smith, 359 F. Supp. 2d 771 (E.D. Wis. 2005)). Rather than applying the Guidelines' 100:1 ratio between crack and powder cocaine, the Court applied the 20:1 ratio that had recently been proposed by the U.S. Sentencing Commission and applied by other district courts. Id. In doing so, this Court reasoned: "Use of this 20:1 ratio in the present case will mitigate the disparity between this sentence and one imposed on a defendant that engaged in substantially similar conduct that involved powder cocaine rather than crack." Id. As a result, Castillo was sentenced to a separate 87-month term of incarceration for each of the three counts, to be followed by a separate three-year term of supervised release. All terms of incarceration and all terms of supervised release were to run concurrently. Additionally, Castillo was required to pay a special assessment of $300. Id. at *5-6.
On June 21, 2005, the Government appealed Castillo's sentence. The Second Circuit issued an opinion on August 6, 2006, reversing Castillo's sentence and remanding the case to this Court for further proceedings. Castillo, 460 F.3d at 361. In its opinion, the Second Circuit began by holding that "[18 U.S.C.] § 3553(f) does not require the imposition of a Guidelines sentence if the district court finds the defendant eligible for safety valve relief. Defendants eligible for safety valve relief may accordingly avoid being sentenced under statutory mandatory minimums and may instead receive the benefit of the advisory Guidelines regime." Id. at 354.
Assessing the reasonableness of the sentence imposed, the Second Circuit further held that rejection of a Guidelines sentence "based only on the district court's generalized policy disagreement with the Guidelines" and "without any justification for why the § 3553(a) factors lead to a below-Guidelines sentence" failed to satisfy the Crosby standard of procedural reasonableness. See Castillo, 460 F.3d at 354-61 (citing United States v. Crosby, 397 F.3d 103, 114-15 (2d Cir. 2005)).
The Second Circuit rejected the argument that the 100:1 ratio of crack to powder cocaine produces "an unwarranted disparity within the meaning of § 3553(a)(6)." Castillo, 460 F.3d at 360. However, the Court of Appeals also stated that "district courts need not sentence within the range produced by the 100:1 ratio in the Guidelines, as long as the specific facts of the case when considered in light of § 3553(a) justify it." Id. at 357-58.
Castillo's re-sentencing hearing was scheduled to take place on January 26, 2007. This Court issued a preliminary sentencing opinion on January 24, 2007. After granting the Government's request for an adjournment, the re-sentencing hearing is now scheduled to take place on February 23, 2007. Castillo's counsel submitted a sentencing memorandum on his behalf dated January 17, 2007 ("Castillo's sentencing submission") and the Government submitted its sentencing memorandum on February 20, 2007 (the "Government's sentencing submission").
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, 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 established by the U.S. 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.
Although the original sentencing opinion in this case stated that the sentence to be imposed was the result of consideration of all of the § 3553(a) factors, the written opinion only addressed the Court's reasoning with respect to § 3553(a)(6). See Castillo, 2005 WL 1214280, *1-2, *5. In its opinion, the Second Circuit observed that "[w]ith respect to the particular sentence imposed in this case, the district court made no attempt to apply any of the case-specific factors from §§ 3553(a)(1) or (a)(2)."Castillo, 460 F.3d at 360.
The Defendant
The following description draws on the Pre-Sentence Investigation Report prepared by the Probation Office of the United States District Court for the Southern District of New York on May 9, 2005 ("the PSI"), as well as Castillo's sentencing submission.
Castillo was born on February 16, 1977, in the Dominican Republic. He is the only child born to his mother and father. He has several paternal half-siblings.
Castillo's parents separated during his early childhood. Following their separation, Castillo lived with his father and step-mother. According to Castillo's sentencing submission, Castillo's mother died when he was about eight years of age.
Based on the PSI, the previous sentencing opinion had indicated that "[w]hile growing up, [Castillo] maintained minimal contact with his biological mother, who continues to reside in the Dominican Republic." Castillo, 2005 WL 1214280, at *2.
Castillo was raised under adequate economic circumstances. In 1989, Castillo's family emigrated to the United States where they settled in the Bronx, New York. Subsequently, Castillo alternately resided in the United States and the Dominican Republic, attending school there until he dropped out after the Eleventh Grade.
In 1996, Castillo's father died after suffering a heart attack. According to Castillo's sentencing submission, his father's death placed a significant amount of pressure on Castillo. At the age of only nineteen, he felt the weight of the responsibility of caring for his family both emotionally and financially, including his stepmother, his half-siblings, the child of one of his half-siblings, and his own two children.
Castillo is not married. He has fathered four children with different women. Two of these children reside in the Dominican Republic. Prior to his arrest, Castillo provided financial support for both of these children.
For close to the past ten years, Castillo has been involved with a woman, and their union has produced two children. These children live in the Bronx with their mother, who visits Castillo regularly.
During the four years prior to his arrest, Castillo reportedly lived with his step-mother and sister in Manhattan, New York. Previously, Castillo apparently lived in the Bronx.
According to the PSI, Castillo has reported no physical or psychological issues or past significant hospitalizations. In Castillo's sentencing submission, however, Castillo reports having had problems sleeping and eating, as well as suicidal thoughts, following his father's death. Castillo does not appear to have any substance abuse issues, although he apparently experimented with marijuana when he was a teenager.
Castillo has reported no significant past employment, although he occasionally worked selling clothes and glasses from carts in the streets. According to Castillo's sentencing submission, he was unable to make enough money to support his family through this work and as the financial pressure mounted, he became more actively involved in selling drugs.
At the time of his arrest, he was unemployed and reportedly supported by his step-mother. The Offense Conduct
The following description draws on the PSI prepared by the Probation Office.
According to information received from the Government, in April 2003, FBI agents received information from a confidential informant that a man subsequently identified as Castillo was using an apartment located at 1365 Saint Nicholas Avenue in Manhattan, New York ("the Apartment") to store and sell crack cocaine.
On April 24, 2003, FBI agents executed a search warrant on the Apartment that was issued by the Honorable Theodore H. Katz of this district. During the ensuing search, FBI agents found, among other things, the following: more than 1.6 kilograms of a substance that field-tested positive for the presence of crack cocaine; approximately 5.7 kilograms of a powdery substance that tested positive for the presence of cocaine; two small scales; strainers; a notebook containing records of transactions; numerous plastic baggies; and two key cards from a Best Western Hotel.
Castillo was arrested on June 9, 2003. In a post-arrest statement, Castillo admitted: (1) that he had been selling drugs for approximately 18 months at the time of his arrest, (2) that his main job was to negotiate prices for kilogram quantities of cocaine, (3) that he had been negotiating such prices for approximately three and a half months, (4) that during that time, he had negotiated the price for the purchase of approximately one kilogram of cocaine per week, and (5) that he was in the Apartment on April 21, 2003, and he was in possession of one kilogram of cocaine at that time.
During the course of his plea allocution, Castillo stated that five kilograms of cocaine and/or cocaine [base] were involved in his agreement with others to distribute controlled substances. Castillo also stated that on April 24, 2003, he possessed with intent to distribute one and a half kilograms of crack. Finally, Castillo stated that on April 24, 2003, he possessed with intent to distribute five kilograms of cocaine.
Relevant Statutory Provisions
The term of imprisonment for each count of the indictment is ten years to life. See 21 U.S.C. §§ 846; 841(a)(1), 841(b)(1)(A).
For each count of the indictment, a term of supervised release of five years is required, and the maximum term of such supervised release is life. See id. However, if the criteria listed in 18 U.S.C. § 3553(f) are met, the term of supervised release would be five years. See 18 U.S.C. § 3583(b)(2). Multiple terms of supervised release are served concurrently with each other. See 18 U.S.C. § 3624(e).
Probation is precluded by statute. See 21 U.S.C. §§ 846; 841(a)(1) and 841(b)(1)(A).
A maximum fine of $4 million for each count of the indictment is authorized. See id. Furthermore, a special assessment of $300 is mandatory. See 18 U.S.C. § 3013.
Pursuant to the Violent Crime Control and Law Enforcement Act of 1994, for offenses committed after September 13, 1994, the Court shall require that all offenders on probation, parole, or supervised release 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. See 18 U.S.C. §§ 3563(a)(5) and 3583(d).
Pursuant to the agreement of the parties, and based on the findings that the relevant statutory criteria have been met, the Court in this case may impose a sentence in accordance with the applicable sentencing analysis and without regard to any statutory minimum sentence. See 18 U.S.C. § 3553(f).
The Guidelines
The November 1, 2006 edition of the United States Sentencing Commission Guidelines Manual ("the Guidelines") has been used in this case for calculation purposes. See U.S.S.G. § 1B1.11(a).
For the purposes of calculating the offense level, counts one, two, and three are grouped together. See U.S.S.G. § 3D1.2(d). Castillo allocuted to offenses involving 5 kilograms of cocaine (which is equivalent to 1,000 kilograms of marijuana) and 1.5 kilograms of crack (which is equivalent to 30,000 kilograms of marijuana). See U.S.S.G. § 2D1.1, Application Note 10 (including Drug Equivalency Tables). Taken together, these amounts are equivalent to 31,000 kilograms of marijuana. Id. Accordingly, the base offense level is 38. See U.S.S.G. § 2D1.1(c)(1).
Castillo meets the criteria for a "safety value reduction," as set forth in subdivisions (1)-(5) of U.S.S.G. § 5C1.2. Accordingly, the base offense level is decreased by two levels.See U.S.S.G. § 2D1.1(b)(9).
Based solely on Castillo's plea allocution, he 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 level is reduced three additional levels. See U.S.S.G. § 3E1.1(a)-(b).
The resulting total offense level is therefore 33.
Castillo has no known criminal convictions. Therefore, he has zero criminal history points and a criminal history category of I.
According to the Guidelines Sentencing Table, based on a total offense level of 33 and a criminal history category of I, the recommended range for imprisonment is 135 to 168 months. See U.S.S.G. Ch. 5, Pt. A.
A term of probation is not recommended under the Guidelines because Castillo's offenses are ones for which probation has been expressly precluded by statute. See U.S.S.G. § 5B1.1(b)(2). In addition, because the applicable Guidelines range is in Zone D of the Sentencing Table, Castillo is not recommended for probation.See U.S.S.G. § 5B1.1, Application Note 2.
Since the criteria listed in U.S.S.G. § 5C1.2 have been satisfied, the recommended term of supervised release is from three to five years for each of the counts to which Castillo has allocuted. See U.S.S.G. § 5D1.2(a)(1).
The recommended fine range for Castillo's offenses is $17,500 to $12 million. See U.S.S.G. § 5E1.2(c)(3), (c)(4)(A). The Guidelines advise that 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. See U.S.S.G. § 5E1.2(d)(7). The most recent advisory from the Administrative Office of the U.S. Courts suggests that 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 18 U.S.C. § 3553(a) Factors
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. Furthermore, as the Second Circuit indicated in Castillo, "There is certainly no dispute that, after Booker, district courts need not sentence within the range produced by the 100:1 ratio in the Guidelines, as long as the specific facts of the case when considered in light of § 3553(a) justify it." Castillo, 460 F.3d at 357-358.
Considering all the factors set forth in § 3553(a), it is determined that a sentence below the applicable Guidelines range is warranted in the instant case. In particular, considering the history and characteristics of the defendant pursuant to § 3553(a)(1) and the need for the sentence to provide just punishment, to provide adequate general and specific deterrence, and to provide the defendant with needed educational or vocational training pursuant to § 3553(a)(2), a below-Guidelines sentence would be appropriate.
Beginning with the history and characteristics of the defendant pursuant to § 3553(a)(1), the Court notes the depression, anxiety, and pressure that Castillo experienced at a young age due to the loss of both of his parents and his resulting family commitments, both financial and emotional. His father's death apparently hit Castillo particularly hard, causing Castillo to have trouble eating and sleeping and to experience suicidal thoughts.
While mental and emotional conditions are not considered "ordinarily relevant" to determining a Guidelines departure according to the U.S. Sentencing Commission's policy statement,see U.S.S.G. § 5H1.3, the Second Circuit has acknowledged that a sentencing court is required to consider but not mandatorily adhere to such policy statements post-Booker. See United States v. Jones, 460 F.3d 191, 194 (2d Cir. 2006) ("With the entire Guidelines scheme rendered advisory by the Supreme Court's decision in Booker, the Guidelines limitations on the use of factors to permit departures are no more binding on sentencing judges than the calculated Guidelines ranges themselves."); cf. United States v. Rattoballi, 452 F.3d 127, 136 n. 4 (2d Cir. 2006) (reviewing sentence for reasonableness includes consideration of § 3553(a)(5)).
According to Castillo's sentencing submission, his father had been the main provider for his family, which had no savings. Therefore, upon his father's death and while still a teenager, Castillo had to take on the responsibility of caring for his family, including his stepmother, his half-siblings, the child of one of his half-siblings, and his own two children.
While these life events do not excuse the instant offense conduct for which Castillo is now being sentenced, they most likely contributed to Castillo's involvement in this criminal activity.
The Court next notes Castillo's lack of any criminal history or any incarceration prior to his imprisonment for the instant offense. Considering the need for the sentence to provide adequate general and specific deterrence, pursuant to § 3553(a)(2)(A) and (B), a non-Guidelines sentence would therefore be appropriate.
As the Second Circuit has observed with respect to the rationale of specific deterrence and the relationship between the sentence for the current offense and prior time served, albeit in the context of career offender Criminal History Categories and the over-representation of Criminal History Categories, "if a defendant served no time or only a few months . . ., a sentence of even three to five years for the current offense might be expected to have the requisite deterrent effect." United States v. Mishoe, 241 F.3d 214, 220 (2d Cir. 2001) (discussing departures pursuant to U.S.S.G. § 4A1.3).
Acknowledging that Mishoe "addresses the comparative impact of a significant increase in punishment over prior low-level sentences," the Government argues that Mishoe is inapplicable in a case such as this where Castillo has never previously served time. Arguably, however, this comparative impact would apply just as much, if not more so, to a defendant that had previously served no time. Furthermore, the Circuit explicitly contemplated such an impact on a defendant who had "served no time," as indicated by the language of the opinion. See Mishoe, 241 F.3d at 220.
Until his current offense, Castillo had never been sentenced to a term of imprisonment, nor does he have any prior criminal convictions. Although the Government points to two prior state arrests, there is no record that either of these arrests (one of which took place more than twelve years ago, when Castillo was only seventeen year old) resulted in a conviction and therefore they are just that — arrests, carrying no proof of criminal conduct. Neither arrest warrants any criminal history points under the Guidelines.
Accordingly, it is maintained that the impact of a sentence within the Guidelines range of 135-168 months, when compared to no prior time served, would be greater than necessary to achieve the required specific deterrent effect in the instant case. It is understood that the sentencing range recommended by the Guidelines has already taken deterrence into account for Criminal History Category I, a category in which many defendants likely have not previously served time in prison. However, considering this particular defendant and his lack of any previous incarceration, it is determined that a non-Guidelines sentence of less than 135 months would still have a sufficient deterrent effect in this case.
In addition, mindful that the goals of punishment and deterrence must be balanced with the rehabilitation and improvement of the defendant, a non-Guidelines sentence is also warranted. See 18 U.S.C. § 3553(a)(2)(D); see also, e.g., Simon v. United States, 361 F. Supp. 2d 35, 48 (E.D.N.Y. 2005). According to Castillo's sentencing submission, while incarcerated he has been working on an electrical maintenance crew and attending "electricity classes," thereby gaining valuable professional skills that he intends to use in supporting his family once released from prison — a marked change from his prior lack of gainful employment. An overly-long prison sentence could prove counterproductive in light of these efforts at self-improvement. As another sentencing court in this District has noted, rehabilitation "cannot be served if a defendant can look forward to nothing beyond imprisonment." United States v. Carvajal, No. 04 CR 222(AKH), 2005 WL 476125, at *6 (S.D.N.Y. Feb. 22, 2005);accord Simon, 361 F.Supp.2d at 49.
Additionally, as it did when it originally sentenced Castillo to a term of imprisonment of 87-months, this Court recognizes its statutory responsibility to "impose a sentence sufficient, butnot greater than necessary, to comply with the purposes set forth in paragraph (2)." 18 U.S.C.A. § 3553 (emphasis added). This Court previously determined that an 87-month sentence was sufficient but not greater than necessary to comply with § 3553(a)(2). Although this determination still holds, a higher sentence must now be imposed to comply with the Second Circuit's opinion on appeal, which has prohibited the sentencing court's consideration of the sentencing disparity between crack and powder cocaine sentences created by the Guidelines.
As the Second Circuit noted in reversing Castillo's original sentence imposed in this case:
[J]udges, who deal with individual cases and controversies, impose particularized sentences on a specific defendant. . . . To be sure, when sentencing a defendant for a crack-related crime — as with any other crime — a district judge may consider "the judge's own sense of what is a fair and just sentence under all the circumstances."Castillo, 460 F.3d at 356-57 (quoting Jones, 460 F.3d at 195; citing Rattoballi, 452 F.3d at 133).
Accordingly, based on the foregoing analysis and having considered all of the factors set forth in § 3553(a) as well as the Second Circuit's opinion in United States v. Castillo, 450 F.3d 337, and the most recent submissions of Castillo's counsel and the Government, it is determined that a non-Guidelines sentence is still warranted in the instant case.
The Sentence
As described above a non-Guidelines term of incarceration is warranted. Therefore, an 111-month term of imprisonment is hereby imposed for each count of the indictment. These terms of incarceration will run concurrently. Castillo has been detained without bail since his arrest. Therefore, he is not a candidate for voluntary surrender. See 18 U.S.C. § 3143(a)(2).
A three-year term of supervised release shall be imposed for each count of the indictment. Within 72 hours of his release from custody, Castillo shall report to the nearest United States Probation Office. It is recommended that he be supervised by the district of his residence.
As mandatory conditions of his supervised release, Castillo 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) refrain from any unlawful use of a controlled substance; (5) submit to one drug test within fifteen days of placement on probation or supervised release and at least two unscheduled drug tests thereafter, as directed by the probation officer; and (6) cooperate in the collection of DNA as directed by the probation officer.
Furthermore, the standard conditions of supervision (1-13) shall be imposed with the special condition that Castillo shall obey the immigration laws and comply with the directives of immigration authorities.
Based on the Court's analysis of Castillo's financial resources, no fine shall be imposed in this case. However, Castillo is required to pay to the United States a mandatory special assessment of $300.
The terms of this sentence are subject to modification at the re-sentencing hearing set for February 23, 2007.
It is so ordered.