Opinion
Case No. 03 Cr. 1211-4 (RWS).
February 15, 2007
SENTENCING OPINION
On October 27, 2006, a jury found defendant Clifton Lee Davis ("Davis") guilty of one count of conspiring in violation of 21 U.S.C. § 846 to distribute and possess with intent to distribute five or more grams of cocaine base, otherwise known as "crack," in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B), a class B felony. For the reasons set forth below, Davis will be sentenced to a term of imprisonment of sixty months and a four-year term of supervised release. Davis will also be required to pay a mandatory special assessment of $100.
Prior Proceedings
Davis was arrested on September 26, 2003, and released on a $250,000 bond on October 2, 2003. A four-count indictment was filed in the Southern District of New York on October 9, 2003. Count One of the indictment alleged that from April 2003 through September 2003, in the Southern District of New York and elsewhere, Davis and other co-defendants conspired to distribute and possess with the intent to distribute fifty grams and more of crack, one kilogram and more of heroin, and five kilograms and more of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A). Count Four charged that on September 26, 2003, Davis and others distributed and possessed with intent to distribute 100 grams and more of heroin.
Following a jury trial before this Court, on November 29, 2005, Davis was acquitted of Count Four and a mistrial was declared with regard to Count One of the indictment. After a second jury trial before this Court, on October 27, 2006, Davis was convicted of Count One, which alleged that Davis conspired with others to violate the narcotics laws of the United States, including through the distribution and possession with an intent to distribute: (1) fifty grams and more of crack; and (2) 100 grams and more of heroin. However, the jury found Davis was not accountable for any amount of heroin and only five grams and more of crack. Davis is scheduled to be sentenced on February 20, 2007. The Special Verdict Form
Davis is facing a statutory mandatory minimum sentence based on the quantity of drugs for which he was found responsible by the jury in his second trial. This drug quantity was determined based on the jury's response to special interrogatories posed to the jury as part of a special verdict form.
As part of the special verdict form submitted to the jury, if the jury found Davis guilty of the narcotics conspiracy charged, the jury was then asked to determine the quantity of drugs reasonably foreseeable to Davis to be the object of the conspiracy for which he was convicted. If the jury found that crack was an object of the conspiracy, they were asked to indicate the highest weight of crack as to which they were all agreed by checking "one, if any" of the following options: (1) "50 grams or more"; or (2) "5 grams or more." Although the jury did have the option of not selecting either of the drug quantities specified on the special verdict form, they were not given the choice of selecting "More than zero grams" for the amount of crack for which Davis would be held responsible.
Here, Davis was charged with conspiracy to distribute and possess with intent to distribute fifty grams and more of mixtures and substances containing a detectable amount of cocaine base and/or 100 grams or more of a controlled substance containing a detectable amount of heroin. The conspiracy offense therefore carried mandatory minimum penalties of ten-or five-years imprisonment and maximum penalties of life imprisonment or forty-years imprisonment by virtue of the quantity of drugs involved. This is in contrast to the lack of a mandatory minimum sentence and a maximum twenty-year sentence that may be imposed for a narcotics offense without any proof of drug quantity or with proof of a lesser drug quantity. See 21 U.S.C. § 841 (b)(1)(A) — (C).
According to the position taken by the Government during consideration of the special verdict form, only those drug quantities that statutorily trigger a higher sentence should be included as options on the special verdict form. This is because the jury must be unanimous as to any quantity that would trigger a higher sentence, but need not be unanimous as to a drug quantity that does not trigger such an increase in the possible sentence.
Although juror unanimity as to this lowest possible drug quantity may not be required, if the jury is not unanimous as to any higher drug quantity then their unanimity as to this lowest possible drug quantity is a necessary default. Circumstances revealed after the conclusion of Davis's second trial, however, evidence that it is desirable to include in a special interrogatory posed to a jury regarding drug quantity an option to select this lowest possible drug quantity.
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 inUnited 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 111.
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 January 10, 2007 ("the PSI"). Additional facts regarding Davis's history and characteristics are adopted as set forth in that report.
Davis was born in Bronx County, New York, in 1979. Both of his parents and his two maternal half-siblings all reside in the Bronx. Davis alternates between residing with his mother and one of his half-sisters. His half-sister has expressed her continued support of Davis and she and her family are prepared to assist Davis as needed.
Although Davis has never married, he is the father of an eight-year-old daughter who resides with her mother in Manhattan. Though Davis and his daughter's mother separated in early 2005, Davis maintains frequent contact with his daughter.
Davis has admitted abusing alcohol, marijuana, cocaine and PCP.
Davis has alleged that he graduated from high school, but school records indicate that he withdrew from classes while in his senior year. He has not received any additional formal education.
Since the fall of 2006, Davis has worked as a messenger for a particular company and continues to be employed in this regard. Prior to his current employment, Davis had an array of several short-term positions as a messenger and trucker's helper at various establishments which he obtained through a particular temp agency. The Offense Conduct
The following description draws on the PSI and the trial proceedings.
Davis appears to have been employed by one of his co-defendants in the distribution of narcotics to various customers. For the second half of September 2003, Davis was observed driving this employer co-defendant's van, in which other co-defendants rode as his passenger. Davis was recorded having phone conversations with the employer co-defendant and was apprehended while driving the employer co-defendant's van. A search of the van revealed a secret compartment in the floor which held a machete and about $1,800 in counterfeit U.S. currency.
It was determined that Davis trafficked quantities of crack as part of the conspiracy and that he served as both a driver and police look-out.
The Relevant Statutory Provisions
The mandatory minimum term of imprisonment is five years and the maximum term of imprisonment is forty years, pursuant to 21 U.S.C. §§ 841(b)(1)(B) and 846. In addition, a term of at least four years' supervised release is required if a sentence of imprisonment is imposed, pursuant to 21 U.S.C. §§ 841(b)(1)(B) and 846.
Davis is not eligible for probation because the offense is one for which probation has been expressly precluded by statute, pursuant to 18 U.S.C. § 3561(a)(2) and 21 U.S.C. §§ 841(b)(1)(B), 846.
Pursuant to the Violent Crime Control and Law Enforcement Act of 1994, all offenders on probation, parole or supervised release for offenses committed after September 13, 1994, are required to 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 as provided in 18 U.S.C. §§ 3563(a)(5) and 3583(d).
The maximum fine is $2,000,000, pursuant to 21 U.S.C. §§ 841(b)(1)(B) and 846. A special assessment in the amount of $100 is mandatory, pursuant to 18 U.S.C. § 3013.
Pursuant to 21 U.S.C. § 862(a)(1)(A), upon a first conviction for distribution of a controlled substance, a defendant may be declared ineligible for any or all Federal benefits for up to five years as determined by the court.
The Guidelines
The November 1, 2006, edition of the United States Sentencing Commission Guidelines Manual has been used in this case for calculation purposes, pursuant to U.S.S.G. § 1B1.11(a).
The Guideline for a violation of 21 U.S.C. § 841(b)(1)(B) is found in U.S.S.G. § 2D1.1. According to the jury's finding, Davis's criminal activity involved having trafficked at least five grams of crack. Therefore, according to U.S.S.G. § 2D1.1(a)(3) and (c)(7), this amount of crack results in a base offense level of 26.
Based on Davis's role in the offense, he was a minor participant and his offense level is accordingly decreased by two levels, pursuant to U.S.S.G. § 3B1.2(b).
The defendant's resulting adjusted offense level is 24.
Davis has a 1999 state conviction for Criminal Possession of Marijuana in the Fifth Degree, for which he receives one criminal history point pursuant to U.S.S.G. §§ 4A1.1(c) and 4A1.2(e)(2). Davis also has two prior state convictions for Criminal Trespass, one in the Third Degree and one in the Second Degree, for which he receives no criminal history points pursuant to U.S.S.G. § 4A1.2(c)(1). Thus, Davis has a Criminal History Category of I.
Based on a total offense level of 24 and a Criminal History Category of I, the Guidelines range for imprisonment is 51-63 months.
The Guidelines range for a term of supervised release is a minimum of four years, as required by statute, pursuant to U.S.S.G. § 5D1.2(b).
Because the offense is one for which probation has been expressly precluded by statute, Davis is not eligible for probation pursuant to U.S.S.G. §§ 5B1.1(b)(2).
The Guidelines fine range for the instant offense is from $12,500 to $2,000,000, pursuant to U.S.S.G. § 5E1.2(c)(3)(A) and (c) (4). Subject to the defendant's ability to pay, in imposing a fine pursuant to U.S.S.G. § 5E1.2(d)(7), the Court shall consider the expected costs to the Government of any imprisonment, probation, or supervised release. The most recent advisory from the Administrative Office of the United States Courts suggests 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.
Pursuant to U.S.S.G. § 5F1.6, the Court may deny eligibility for certain Federal benefits of any individual convicted of distribution or possession of a controlled substance.
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 inCrosby, 397 F.3d 103. Pursuant to all of the factors, it is determined that a Guidelines sentence is warranted, but only because a statutory mandatory minimum sentence applies in this case.
Pursuant to § 3553(a)(1), however, the Court notes Davis's lack of any significant prior incarceration. The Court also notes Davis's young age. Davis will be twenty-seven years old when he is incarcerated for the instant offense, and will be about thirty-two years of age upon his release from the sentence of imprisonment contained in this opinion.
According to the PSI, the only term of imprisonment previously served by Davis consisted of only seven days' incarceration.
Therefore, 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 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, "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 and over-representation of Criminal History Categories).
Furthermore, considering the need for the sentence imposed "to protect the public from further crimes of the defendant," pursuant to § 3553(a)(2)(C), the Court examines the likelihood that Davis will commit additional crimes once released from prison. As observed in reports issued by the U.S. Sentencing Commission, the rate of recidivism is markedly low for drug trafficking offenders with minimal criminal history. Specifically, within two years of their release from prison, 96 percent of offenders in Criminal History Category I had no subsequent convictions. See U.S. SENTENCING COMM'N, MEASURING RECIDIVISM: THE CRIMINAL HISTORY COMPUTATION OF THE FEDERAL SENTENCING GUIDELINES EXS. 2 4 (2004).
In addition, of those in Criminal History Category I who were sentenced when they were between the ages of 26 and 30, like Davis, only 13.3 percent were either re-arrested, re-convicted, or had their supervised release revoked within two years of their release from prison. Id. Ex. 9 (comparing an overall range of recidivism rates from 6.2 to 70.1 percent). Although this rate was higher than for those in Criminal History Category I who were sentenced when they were 36 years or older, it was lower than all other age categories in Criminal History Category I, including those sentenced under the age of 26 and between the ages of 31 and 35. Id. It was also lower than the overall rate for the 26 to 30 year old age category, which had a recidivism rate of 23.7.Id.
Also, of drug trafficking offenders in Criminal History Category I, only 16.7 percent were either re-arrested, re-convicted, or had their supervised release revoked within two years of their release from prison. Id. Ex. 11. Although this recidivism rate was higher than for Criminal History Category I offenders convicted of fraud or larceny, it was still lower than for those convicted of robbery or a firearms violation. Id. The Sentence
For the instant offense, as is required by statute, Davis is hereby sentenced to a term of imprisonment of sixty months to be followed by a four-year term of supervised release.
Davis is viewed as a relatively good candidate for voluntary surrender pursuant to 18 U.S.C. § 3143(a) (2). He has kept all of his court appearances and has been in compliance with most of the terms and conditions of his release. His conduct during the more than three years that he has been released on bond, including his continued employment, indicates that he is not a flight risk nor a danger to the community. Davis is therefore directed to report to the nearest Probation Office within seventy-two hours of the imposition of this sentence.
Davis's pretrial supervision officer has indicated that Davis has reverted to drug usage during his release.
Davis is also directed to report to the nearest Probation Office within seventy-two hours of release from custody. It is recommended that the defendant be supervised by the district of his residence.
As mandatory conditions of his supervised release, Davis 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; and (4) cooperate in the collection of DNA as directed by the probation officer. The mandatory drug testing condition is suspended due to the imposition of a special condition requiring drug treatment and testing.
The standard conditions of supervision (1-13) shall be imposed, along with the following special conditions:
(1) Davis will participate in a program approved by the United States Probation Office, which program may include testing to determine whether he has reverted to using drugs or alcohol. The Court authorizes the release of available drug treatment evaluations and reports to the substance abuse treatment provider, as approved by the Probation Officer. Davis shall be required to contribute to the costs of services rendered (co-payment), in an amount determined by the probation officer, based on ability to pay or availability of third-party payment.
(2) Davis 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 reasonable manner. Failure to submit to a search may be grounds for revocation. Davis shall inform any other residents that the premises may be subject to search pursuant to this condition.
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 the fine in this case shall therefore be waived. A special assessment of $100, 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 set for February 20, 2007.
It is so ordered.