Opinion
98 Cr. 692 (RWS)
March 29, 2002
SENTENCING OPINION
Defendant Roger Chavez ("Chavez") pleaded guilty on October 20, 1998 to: two counts of conspiracy to distribute and possess with intent to distribute crack cocaine in violation of 21 U.S.C. § 846; two counts of robbery in violation of 18 U.S.C. § 1951(a); and one count of use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). For the reasons set forth below, Chavez's sentence will consist of three years probation, subject to the sentencing hearing now set for April 3, 2002. A special assessment fee of $500 is mandatory and will be due immediately.
The Defendant
Chavez was born on October 31, 1975 in Managua, Nicaragua. He is the oldest of two children born to Silvia nee Jara, age 47, and Roger Chavez, Sr., age 46. Chavez's mother resides in Brooklyn, New York and is employed in the garment industry. His father resides in the Bronx, New York, and is employed by Xerox Company. Chavez's sister, age 21, resides in New Jersey.
Chavez was reared under middle-class circumstances in New York. His parents separated when he was 12, at which time he began to live with his mother and his sister began to reside with an aunt. In 1996, Chavez began residing with Marisol Rosado, age 25, with whom he has a 4-year-old child. In June 2001, Chavez returned to his mother's residence.
Chavez attended high school in Brooklyn, New York from 1990 to 1992, but stopped attending during the 10th grade. He joined the gang known as the Latin Kings in 1996 and held the position of Inca. However, in 1998, Chavez left the gang after having problems with higher ranking members, and has since been attacked by members of the gang on several occasions. Chavez has stated that he remains in fear for his life.
Chavez admits to having first used marijuana in 1993, with his last use being in 1998. He stated that he smoked marijuana daily for three months in 1996 while incarcerated at Rikers Island Correctional Facility. Upon his release, and until 1998, his use was approximately 1 to 2 times per month.
The Offense
On four occasions between October 1997 and February 1998, Chavez participated in the sale of powder and/or crack cocaine to an officer of the New York City Police Department acting in an undercover capacity. On May 14, Chavez was arrested pursuant to a criminal complaint charging him and Jesus Laureano with conspiracy to sell crack cocaine.
When he was arrested, Chavez waived his right to remain silent and admitted selling narcotics. He also admitted his affiliation with the Latin Kings. He identified Laureano as his source for narcotics, and provided the police with Laureano's pager number and approximate address.
On October 20, 1998, Chavez pleaded guilty to the following: two counts of conspiracy to distribute and possess with intent to distribute crack cocaine in violation of 21 U.S.C. § 846; two counts of robbery in violation of 18 U.S.C. § 1951(a); and one count of use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c).
The Guidelines
For the two counts of narcotics conspiracy, the Presentence Report prepared by the U.S. Probation Office assigns Chavez's offense conduct under the United States Sentencing Guidelines (the "Guidelines") at a base offense level of 34 for a conspiracy involving distribution and possession of between 150 grams and 500 grams of crack cocaine. See U.S.S.G. § 2D1.1(c)(1). The statutory term of imprisonment is a ten year mandatory minimum up to life imprisonment, per count. See 21 U.S.C. § 846, 841(b)(1)(A).
For each of the two counts of robbery, the Probation Office assigns Chavez's offense conduct under the Guidelines at a base offense level of 20. See U.S.S.G. § 2B3.1 (a). For one of these counts (Count 3), three levels are added because a dangerous weapon was brandished or possessed. See U.S.S.G. § 2B3.1 (b)(2)(E). Under the applicable statute, the maximum term of imprisonment is 20 years per count. See 18 U.S.C. § 1951(a).
Count 5, use of a firearm in violation of 18 U.S.C. § 924(c), carries a statutory maximum term of imprisonment of 5 years, which runs consecutively to any other term of imprisonment imposed pursuant to § 5G1.2 (a).
Chavez has a prior conviction for attempted robbery, and has therefore been assigned 2 criminal history points. Because at the time the instant offense was committed Chavez was on parole, two points must be added pursuant to Guidelines § 4A1.1 (d). Another point must be added as the instant offense was committed less than two years after Chavez's release from custody on September 10, 1996 for a sentence on October 23, 1996, yielding 5 total criminal history points and a Criminal History Category of III. See U.S.S.G. § 4A1.1 (e).
The government has submitted a letter pursuant to § 5K1.1, because Chavez's cooperation has been of substantial assistance to the government's investigation and prosecution of other persons. Chavez admitted to being a member of the Latin Kings, to being a participant in two robberies, and to possessing a firearm during one of the robberies. He provided substantial assistance to law enforcement by supplying information about violations of the federal narcotics laws. The information was used to investigate, identify, and successfully prosecute other people, including Jesus Laureano. Chavez was prepared to testify at Laureano's trial, and it is believed by the government that this contributed to Laureano's decision to plead guilty. Chavez also provided information about other crimes, including currency counterfeiting.
Based on this letter, the Probation Office recommended a custodial term of 6 months in a community confinement center followed by three years of supervised release.
The Sentence
Chavez will be sentenced to three years of probation. He will report to the nearest Probation Office within 72 hours of release from custody, and supervision shall be in the district of residence. As mandatory conditions of probation, Chavez shall (1) not commit another federal, state, or local crime; (2) not illegally possess a controlled substance; and (3) not possess a firearm or destructive devise. Chavez shall also abide by the standard conditions of supervision (1-13).
As special conditions, Chavez will be required to seek approval from the supervising probation officer regarding his continuing cooperation with the government, and Chavez must participate in a program approved by the United States Probation Office for substance abuse, which program may include testing to determine whether the defendant has reverted to the use of drugs or alcohol. Chavez will be required to contribute to the costs of services rendered (co-payment) in an amount to be determined by the probation officer, based on ability to pay or availability of third-party payment.
No fine will be imposed due to Chavez's lack of financial resources at this time. However, a special assessment fee of $500 will be due immediately.
This sentence is subject to modification at the sentencing hearing no set for April 3, 2002.