Opinion
08 Cr. 34-01(RWS).
October 14, 2009
SENTENCING OPINION
On June 24, 2009, Jose Angel Gonzales ("Gonzales" or "Defendant") pleaded guilty to one count of conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A). For the reasons set forth below, Gonzales will be sentenced to 188 months' imprisonment and 5 years' supervised release. Gonzales will also be required to pay a special assessment of $100.
Prior Proceedings
On January 9, 2008, Indictment 08 CR 34 (RWS) was filed against Gonzales in the Southern District of New York. Count 1 charged that from 2005 to 2006, Defendant and others conspired to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A).
On June 24, 2009, Gonzales appeared before the Honorable Henry B. Pitman and, pursuant to a written plea agreement, entered a plea of guilty to Count 1.
Defendant's sentencing is scheduled for October 19, 2009.
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 Court adopts the facts set forth in the Probation Department's Presentence Investigation Report ("PSR") with respect to Gonzales's personal and family history.
The Offense Conduct
The following description draws on the PSR. The specific facts of the underlying conduct are adopted as set forth in that report.
Gonzales worked for a drug organization that imported kilogram quantities of cocaine into the United States. Gonzales's role in the organization was to oversee the shipments in the New York area and the subsequent collection and transfer of drug proceeds out of New York.
In October 2005, Gonzales took custody and oversaw the transportation of approximately $1.3 million worth of drug proceeds in the New York area. In late February 2006, law enforcement agents seized 56 kilograms of cocaine that were en route to the New York area. According to a cooperating witness and wiretap intercepts, Gonzales was in charge of supervising the transportation of this drug load. In March 2006, law enforcement officers seized approximately 49 kilos of cocaine whose transportation was also being supervised by Gonzales. He is held responsible for distributing at least 105 kilograms of cocaine.
Gonzales was arrested on January 26, 2008.
The Relevant Statutory Provisions
Count 1 carries a mandatory minimum term of imprisonment of 10 years and a maximum term of imprisonment of life pursuant to 21 U.S.C. §§ 846 and 841(b)(1)(A).
A mandatory minimum term of five years to life of supervised release is required if a sentence of imprisonment is imposed, pursuant to 21 U.S.C. §§ 846 and 841(b)(1)(A).
Defendant is not eligible for probation because the instant 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. §§ 846 and 841(b)(1)(A).
The maximum fine for Count 1 is $1,000,000 pursuant to 21 U.S.C. §§ 846 and 841(b)(1)(A). A special assessment of $100 is mandatory, pursuant to 18 U.S.C. § 3013.
The Guidelines
The November 1, 2008 edition of the United States Sentencing Commission Guidelines Manual has been used in this case for calculation purposes, pursuant to § 1B1.11(a).
Pursuant to a written plea agreement, the parties stipulate to the following:
The guideline for violation of 18 U.S.C. § 841(b)(1)(A) is found in § 2D1.1. Because Gonzales conspired to distribute between 50 and 150 kilograms of cocaine, the base offense level is 36, pursuant to the Drug Quantity Table under § 2D1.1(c)(1).
Defendant is entitled to a 2-level decrease in his offense level for acceptance of responsibility pursuant to § 3E1.1(a) and an additional one-level reduction, pursuant to § 3E1.1(b), for timely notifying the Government of his intention to enter a plea of guilty, thus allowing the Government to allocate its resources more efficiently. Accordingly, the applicable offense level is 33.
On February 6, 1992, Gonzales was sentenced by the Superior Court of Arizona, Maricopa County, Arizona, to 3 years' probation, $60 restitution, a $750 fine, and 240 hours of community service for Attempted Possession of Marijuana for Sale (Less Than One Pound). On June 8, 1993, his probation was revoked as a result of an arrest for possession of narcotics and Gonzales was sentenced to 2 years' incarceration. Pursuant to §§ 4A1.1(a), 4A1.2(e)(1), and 4A1.2(k), this offense warrants 3 Criminal History Points.
On December 11, 1992, Gonzales was sentenced by the Phoenix Municipal Court, Phoenix, Arizona, to two days' incarceration for Assault. Pursuant to § 4A1.2(e)(3), this offense warrants no criminal history points.
On June 8, 1993, Gonzales was sentenced by the Superior Court of Arizona, Maricopa County, Arizona, to 4 years' imprisonment and a $2,000 fine for Possession of a Narcotic Drug. Pursuant to §§ 4A1.1(a) and 4A1.2(e)(1), this offense warrants 3 Criminal History Points.
On October 31, 1995, Gonzales was sentenced by the Maricopa County Justice Court, Maryvale Precinct, Phoenix, Arizona, to a $62 fine for driving without a commercial driver's license. Pursuant to § 4A1.2(c)(1), no criminal history points are warranted.
On May 28, 1996, Gonzales was found or plead guilty of a Weapons Offense by the Phoenix Municipal Court. Because court documents have been purged, no information is available concerning Defendant's sentence, and no criminal history points are warranted.
On October 4, 2000, Gonzales was sentenced by the Superior Court of Arizona, Maricopa County, Arizona to 3 years' intensive probation, 4 months' incarceration, and a $1,000 fine for Attempted Possession of Dangerous Drugs for Sale. Pursuant to §§ 4A1.1(b) and 4A1.2(e)(2), this offense warrants 2 Criminal History Points.
Gonzales therefore has 8 Criminal History Points. According to the sentencing table at Chapter 5, Part A, 8 Criminal History Points establishes a Criminal History Category of IV.
Based on a total offense level of 33 and a Criminal History Category of IV, the Guidelines range for imprisonment is 188 to 235 months' imprisonment.
The Guidelines range for a term of supervised release is five years, the minimum required by statute, pursuant to § 5D1.2(c).
Defendant is not eligible for probation because the instant offense is one for which probation has been expressly precluded by statute, pursuant to § 5B1.1(b)(2).
The fine range for the instant offense is from $17,500 to $1,000,000, pursuant to § 5E1.2(c)(3)(A) and (c)(4). Subject to 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 imposed, pursuant to § 5E1.2(d)(7). The most recent advisory from the Administrative Office of the United States Courts suggests a monthly cost of $2,157.88 to be used for imprisonment, a monthly cost of $311.94 for supervision, and a monthly cost of $1,990.13 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 sentence within the Guidelines framework is warranted.
The Sentence
For the instant offense, Gonzales will be sentenced to 188 months' incarceration and a five-year term of supervised release.
Gonzales is directed to report to the nearest United States Probation Office within seventy-two hours of release from custody to commence his term of supervised release. It is recommended that Gonzales be supervised by the district of his residence.
As mandatory conditions of his supervised release, Gonzales 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. The mandatory drug testing condition is suspended due to imposition of a special condition requiring drug treatment and testing.
Furthermore, the standard conditions of supervision (1-13), set forth in the judgment, shall be imposed with the additional special conditions that:
(1) Defendant shall participate in a program approved by the United States Probation Office, which program may include testing to determine whether Defendant 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. Defendant will 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 the third-party payment.
(2) 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 the release may be found. The search must be conducted at a reasonable time and in a reasonable manner. Failure to submit to a search may be grounds for revocation. Defendant 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 Defendant is able to pay a fine, and 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 October 19, 2009.
It is so ordered.