Opinion
No. 56 98Cr. 132.6 (RWS).
February 2, 2001.
SENTENCING OPINION
Pursuant to a written plea agreement, defendant Anthony Colon ("Colon") pled guilty to conspiring to distribute and possess between three and ten kilograms of heroin, in violation of 21 U.S.C. § 82.2, 841(a)(1) and 841(b)(1)(A), on January 18, 2000. For the reasons set forth below, Colon will be sentenced to a term of 121 months of imprisonment, to be followed by a statutory five year term of supervised release. Colon shall pay a mandatory $100 special assessment pursuant to 18 U.S.C. § 3013.
Colon was born to Jacinto Colon and Maria Silver ("Silver") in Bronx, New York, on September 21, 1977, twenty-three years ago. Colon's father, now a thirty-seven year-old mechanic, has not had any contact with Colon for at least three years. Colon's mother is thirty-six years old, unemployed, and on public assistance. Colon is unsure of her current address. Colon has two sisters, ages fifteen and twenty, as well as two paternal half-siblings with whom he has no contact.
Colon's family moved from Puerto Rico to the Bronx when he was nine years old, seeking a better life. Colon's father battled addictions to alcohol and cocaine, and was physically abusive to Colon, his mother and his siblings. Colon attended classes at two high schools in 1994 and 1995, but dropped out due to a combination of factors: lack of money to buy clothing or supplies, problems with other students, and academic difficulties. During the summers in the years he was attending school, Colon sold hot dogs at a concession stand at the Bronx Zoo.
When Colon's father left them, Colon was left to support the family, although he spoke little English and had no high school diploma. His mother's public assistance payments were not enough to keep the family fed on a regular basis. Extended family were of no help, in part because many relatives on Colon's father's side of the family also were dealing with their own substance abuse. Colon later moved in with Daisy Fernandez, with whom he has had a three year relationship. Ms. Fernandez regularly brings their 16-month old daughter, Brianna, to visit Colon in custody.
The Offense
Colon was arrested on October 21, 1998, as a result of a three-year narcotics investigation by the Bronx Homicide Task Force (BXHTF) and the Bronx Major Case Narcotics Unit of the New York City Police Department (NYPD). Since 1996, NYPD detectives had investigated the trafficking of heroin with the brand name "Special" in the vicinity of Crotona Avenue and East 183rd Street in Bronx County, New York. The investigation, conducted with the assistance of undercover police officers and confidential informants, revealed the existence of a drug ring that distributed substantial amounts of heroin weekly, up to ten kilograms over the course of the conspiracy. Eleven individuals, including Colon, were charged with violating federal narcotics laws. Colon was a street-level "pitcher" who was involved in the street sales of heroin to undercover police officers.
The Guidelines
The Presentence Report prepared by the U.S. Probation Office grades Colon's conduct under the 1998 version of the United States Sentencing Guidelines ("the Guidelines") at a base offense level of 34 pursuant to § 2D1.1(c)(3) and the Drug Quantity Table. The Probation Office recommends a three-point reduction for acceptance of responsibility pursuant to U.S.S.G. §§ 3E1.1(a) and (b), resulting in an adjusted offense level of 31.
Colon has one prior conviction from the Bronx County Supreme Court for the attempted sale of crack cocaine in 1996, when he was nineteen years old. Section § 4A1.1 (b) provides for two criminal history points for this conviction because Colon was sentenced to one year in prison. As that offense took place less than two years before the instant charge, § 4A1.1(e) provides for two additional criminal history points. A defendant with four criminal history points has a Criminal History Category of III.
Based upon a total offense level of 31 and a Criminal History Category of III, the Probation Office recommends the imposition of a sentence within the Guidelines range of 135 to 168 months. Colon is not eligible for probation because probation has been expressly precluded by statute for the instant offense. See 18 U.S.C. § 3561(a)(2), 21 U.S.C. § 846; U.S.S.G. § 5B1.1(b)(2).
Colon entered into a nonbinding plea agreement with the Government that did not recommend adding two criminal history points pursuant to § 4A1.1(e). Based upon a Criminal History Category of II based upon two rather than four criminal history points, and an offense level of 31, the plea agreement recommends a stipulated sentence range of 121 to 151 months.
Section 4A1.3 grants sentencing courts the discretion to downwardly depart where the prior history calculation overstates the seriousness of a defendant's criminal record. See United States v. Rivers, 50 F.3d 1126, 1130 (2d Cir. 1995) ("We agree with the other circuits that section 4A1.3 manifests the [Sentencing] Commission's view that a sentencing judge should exercise discretion whenever the judge concludes that the consequences of the mathematical prior-history calculation . . . either underrepresent or overrepresent the seriousness of a defendant's prior record."). Courts must enumerate specific reasons justifying downward departures. See United States v. Butler, 954 F.2d 114, 121 (2d Cir. 1992).
Guidelines § 4A1.3 states in part: There may be cases where the court concludes that a defendant's criminal history category significantly over-represents the seriousness of a defendant's criminal history or the likelihood that the defendant will commit further crimes. An example might include the case of a defendant with two minor misdemeanor convictions close to ten years prior to the instant offense and no other evidence of prior criminal behavior in the intervening period. The court may conclude that the defendant's criminal history was significantly less serious than that of most defendants in the same criminal history category (Category II), and therefore consider a downward departure from the guidelines.
In this case, the four criminal history points calculated in the presentence report overstate the seriousness of Colon's prior conviction. Colon's attempted criminal sale of a controlled substance in the third degree was his first offense, and took place when Colon was nineteen years old, at a time when he was struggling to help support his family despite his own lack of a high school diploma. The conduct providing the basis for the conviction was nonviolent. Finally, Colon is now a new father, which provides strong incentive to rehabilitation. See e.g., United States v. DeJesus, 75 F. Supp.2d 141, 144 (S.D.N.Y. 1999) (downwardly departing pursuant to § 4A1.3 where, in addition to other circumstances, defendant's prior offenses were primarily attempted narcotics sales, took place when he was under twenty-one and he was a new father at time of sentencing).
As a result, a downward departure is appropriate, and Colon will be sentenced within the Guideline range according to a Criminal History Category of II, which includes defendants with two or three criminal history points. U.S.S.G. § 4A1.3 ("In considering a departure under this provision, the Commission intends that the court use, as a reference, the guideline range for a defendant with a higher or lower criminal history category, as applicable."); DeJesus, 75 F. Supp.2d at 144.
The Sentence
Based upon an offense level of 31 and a Criminal History Category of II, the applicable Guideline range is 121-151 months. Colon shall be sentenced to 121 months of imprisonment, as no legitimate rehabilitative purpose would be advanced by incarcerating him for an additional fourteen to forty-four months.
In addition, a five-year term of supervised release is required pursuant to 21 U.S.C. § 846 and Guidelines § 5D1.2. Colon is to report to the nearest Probation Office within 72 hours of his release from custody, and supervision shall be in the district of residence. As mandatory conditions of supervised release, Colon shall (1) abide by the standard terms of supervised release; (2) not commit another federal, state, or local crime; (3) not illegally possess a controlled substance; (4) not possess a firearm or destructive device; or (5) unlawfully use a controlled substance. Finally, Colon shall submit to one drug test within fifteen days of placement on supervised release, and at least two drug tests thereafter. 18 U.S.C. § 3583(d).
Although the Guidelines contemplate fines ranging from $15,000 to $4 million, see § 5E1.2(c)(4), upon a review of Colon's financial statement, no fine will be imposed. However, Colon is required to pay the mandatory $100 special assessment pursuant to 18 U.S.C. § 3013, which shall be due immediately.
This sentence is subject to the hearing currently scheduled for February 5, 2001.
It is so ordered.