Opinion
06 Cr. 964-01 (RWS).
May 30, 2007
SENTENCING OPINION
On January 24, 2007 Esteban Luis Diaz-Pichardo ("Diaz-Pichardo") appeared before the Honorable Gabriel W. Gorenstein of this District and pleaded guilty to one count of illegal reentry into the United States after having been deported. For the reasons set forth below, Diaz-Pichardo will be sentenced to a fifty-seven month term of imprisonment, to be followed by a two-year term of supervised release. Diaz-Pichardo also will be required to pay a special assessment of $100.
Prior Proceedings
Diaz-Pichardo was named in a one-count indictment filed in the Southern District of New York on October 13, 2006 charging him with illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(2). Diaz-Pichardo pleaded guilty to the indictment on January 24, 2007, before the Honorable Gabriel W. Gorenstein. This Court accepted Diaz-Pichardo's guilty plea on February 20, 2007. Diaz-Pichardo's sentencing is scheduled for June 4, 2007.
The Sentencing Framework
In accordance with the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), and the Second Circuit's decision in United 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 114-15.
The Defendant
The Offense Conduct
On January 8, 2004, Diaz-Pichardo was paroled and detained by United States Immigration and Customs Enforcement ("ICE"). Diaz-Pichardo was deported to the Dominican Republic on February 2, 2004.
On April 4, 2006, Diaz-Pichardo was arrested by the NYPD and charged with Criminal Sale of a Controlled Substance, 3d Degree. On June 6, 2006, Diaz-Pichardo pled guilty to Criminal Possession of a Controlled Substance, 7th Degree. He was sentenced to seven months' imprisonment on June 6, 2006.
ICE agents compared the photograph and right index fingerprint taken of Diaz-Pichardo prior to his deportation with the photograph and fingerprints obtained by NYPD in connection with the April 4, 2006 arrest and determined that they were from the same person.
There is no indication that Diaz-Pichardo received permission from the Attorney General and Secretary for Homeland Security to reapply for admission to the United States following his deportation on February 2, 2004.
The Relevant Statutory Provisions
The maximum term of imprisonment is twenty years, pursuant to 8 U.S.C. §§ 1326(a), (b)(2) and 1101(a)(43)(B).
If a sentence of imprisonment is imposed, the Court may impose a term of not more than three years' supervised release, pursuant to 18 U.S.C. § 3583(b)(2).
Diaz-Pichardo is eligible for not less than one nor more than five years' probation by statute, pursuant to 18 U.S.C. § 3561(c)(1). Because the offense is a felony, one of the following must be imposed as a condition of probation unless extraordinary circumstances exist: a fine, restitution, or community service, pursuant to 18 U.S.C. § 3563(a)(2).
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 $250,000, pursuant to 18 U.S.C. § 3571(b)(3). A special assessment in the amount of $100 is mandatory, pursuant to 18 U.S.C. § 3013.
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 section 1B1.11(a).
The guideline for violations of 8 U.S.C. § 1326 is found in section 2L1.2. The base offense level is 8, pursuant to section 2L1.2(a). Because Diaz-Pichardo was deported after a conviction for a felony that is a drug trafficking offense for which the sentence imposed exceeded 13 months, the offense level is increased by 16 levels pursuant to section 2L1.2(b)(1)(A)(i). Because Diaz-Pichardo has demonstrated acceptance of responsibility through his allocution and subsequent conduct prior to the imposition of sentence, a three-level reduction is warranted, pursuant to section 3El.l(a) and (b). The resulting adjusted offense level is 21.
For the purposes of calculating the sentence imposed under section 2L1.2(b)(1)(A)(i), the length of the sentence is the stated maximum, or three years in the case of Diaz-Pichardo's sentence of one to three years for Attempted Criminal Sale of a Controlled Substance, 3d Degree, imposed on March 6, 2003. Section 2L1.2(b)(1)(A)(I), cmt. (B)(vii); § 4A1.2 cmt. 2.
Diaz-Pichardo has been convicted of the following crimes for which he was sentenced to a term of imprisonment of at least 60 days but not more than 13 months: (1) Criminal Possession of a Controlled Substance, 4th Degree, for which a sentence of one year's imprisonment was imposed on March 6, 2003; (2) Criminal Possession of a Controlled Substance, 7th Degree, for which a sentence of one year's imprisonment was imposed on February 20, 2003; and (3) Criminal Possession of a Controlled Substance, 7th Degree, for which a sentence of seven months' imprisonment was imposed on June 6, 2006. For each of these convictions, 2 criminal history points are added, pursuant to section 4A1.1(b).
Diaz-Pichardo was also convicted of Attempted Criminal Sale of a Controlled Substance, 3d Degree, for which a sentence of one to three years' imprisonment was imposed on March 6, 2003. Pursuant to section 4A1.1(a), 3 criminal history points are added for this conviction. The resulting criminal history points total is 9 and the criminal history category is IV.
Based on a total offense level of 21 and a criminal history category of IV, the Guidelines range for imprisonment is fifty-seven to seventy-one months.
The Guidelines range for a term of supervised release is at least two but not more than three years, pursuant to section 5D1.2(a)(2). If a sentence of imprisonment of one year or less is imposed, a term of supervised release is not required but is optional, pursuant to section 5D1.1(b). Supervised release is required if the Court imposes a term of imprisonment of more than one year or when required by statute, pursuant to section 5D1.1(a).
Diaz-Pichardo is not eligible for probation because the applicable Guidelines range is in Zone D of the sentencing table, pursuant to section 5B1.1, cmt. 2.
The fine range is from $7,500 to $75,000, pursuant to section 5E1.2(c)(3). 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. Section 5E1.2(d)(7). 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.
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 in Crosby, 397 F.3d 103. Pursuant to all of the factors, it is hereby determined that a Guidelines sentence is warranted.
The Sentence
Diaz-Pichardo will be sentenced to a 57 month term of imprisonment, to be followed by a two-year term of supervised release.
Since Diaz-Pichardo has been detained without bail since his arrest, he is not a candidate for voluntary surrender. 18 U.S.C. § 3143(a)(2). Diaz-Pichardo is 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 residence.
As mandatory conditions of his supervised release, Diaz-Pichardo 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) cooperate in the collection of DNA as directed by the probation officer; and (5) refrain from any unlawful use of a controlled substance and submit to one drug test within 15 days of release on probation and two periodic drug tests thereafter for use of a controlled substance.
Furthermore, the standard conditions of supervision (1-13) shall be imposed with the following additional special conditions:
(1) The defendant 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 probation 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. The defendant shall inform any other residents that the premises may be subject to search pursuant to this condition.
(2) The defendant shall obey the immigration laws and comply with the directives of the Bureau of Immigration and Customs Enforcement.
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, so the fine in this case shall 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 scheduled for June 4, 2007.
It is so ordered.