Opinion
09 Cr. 877 (RWS).
October 14, 2009
SENTENCING OPINION
On September 9, 2009, Raheem Hamilton, a/k/a "Raheen Hamilton," a/k/a "Raheen Strength" ("Hamilton" or "Defendant") appeared before this Court and pleaded guilty to one count of Passing Counterfeit United States Currency, in violation of 18 U.S.C. § 472. For the reasons set forth below, Hamilton will be sentenced to time served and three years' supervised release, to include four months home confinement. Hamilton also will be required to pay restitution in the amount of $1,790 and a special assessment of $100.
Prior Proceedings
Information 09 Cr. 877 (RWS) was filed in the Southern District of New York on September 3, 2009. Count I charges that from September 2, 2008, up to September 26, 2008, in the Southern District of New York and elsewhere, Hamilton knowingly kept in his possession, concealed and passed counterfeited United States currency at a retail clothing store in Manhattan in violation of 18 U.S.C. § 472.
Defendant's sentencing is currently 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. As the Supreme Court explained in Gall v. United States, 128 S. Ct. 586 (2007):
[A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark. The Guidelines are not the only consideration, however. Accordingly, after giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party. In so doing, he may not presume that the Guidelines range is reasonable. He must make an individualized assessment based on the facts presented.Id. at 596 (internal citation and footnote omitted). Thus, in addition to analysis of the Guidelines, the sentence imposed here results from 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.
In light of the Court's statutory responsibility "to impose a sentence sufficient, but not greater than necessary' to accomplish the goals of sentencing," Kimbrough v. United States, 128 S. Ct 558, 571 (2007) (quoting 18 U.S.C. § 3553(a)), and having considered the Guidelines and all of the factors set forth in § 3553(a), it is determined that a Guidelines sentence is warranted in the instant case.
The Defendant
The Court adopts the facts set forth in the Probation Department's Presentence Investigation Report ("PSR") with respect to Hamilton'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.
In 2008, a Special Agent with the United States Secret Service ("USSS") received information from another law enforcement agent who had received a call on September 10, 2008, from a Loss Prevention Agent (the "LPA") of a retail clothing store in Manhattan (the "Store"). The LPA indicated that purchases of good had been made from the Store using counterfeit Federal Reserve Notes.
An investigation was initiated and the agent spoke with the LPA and learned that on September 9, 2008, Hamilton, a former employee of the Store, had purchased three items of clothing at the Store. The agent reviewed the sale transaction receipts associated with Hamilton's purchase and confirmed that the amount totaled $297.15. Hamilton made the purchase using six $50 bills, which amounted to $300. After Hamilton left the Store, the sales employee who completed the transaction (the "Employee") had immediately informed the LPA that the six $50 bills provided to him by Hamilton were counterfeit. The LPA examined the six $50 bills used by Hamilton as payment for his purchase and drafted a report in which it was noted that three of the bills obtained from Hamilton shared the same serial number ("Serial Number 1"), two of the bills shared another serial number ("Serial Number 2") and a third bill had a third and different serial number ("Serial Number 3"). The LPA copied these various serial numbers and entered them into his report. The six $50 bills used by Hamilton were placed in the sales register drawer and were subsequently deposited into the Store's bank account at Bank of America ("BOA").
When BOA finds counterfeit Federal Reserve Notes in its accounts, it inputs information concerning the counterfeit bills into a database hosted by the USSS. BOA further collects and bundles all counterfeit Federal Reserve Notes from a certain date of deposit and forwards the bundled notes to the USSS.
On September 10, 2008, BOA inputted counterfeit bill information into the USSS database that correlated with the deposits from the Store for sales occurring on September 9, 2008. The case agent reviewed this information and determined that on September 10, 2008, BOA received deposits from the Store that included five counterfeit $50 notes. Of the five $50 counterfeit notes, two $50 notes had Serial Number 1, two other notes had Serial Number 2, and one note had Serial Number 3. One $50 counterfeit note bearing Serial Number 1 was not retrieved.
On October 17, 2008, the case agent interviewed the Employee and showed him an array of six photographs, including a photograph of Hamilton that had been obtained from a law enforcement database. The Employee confirmed that the photograph was of Hamilton, the individual who purchased items from the Store on September 9, 2008, using the suspicious bills.
In addition, the case agent obtained video surveillance of the September 9, 2008 purchase. The video revealed that the person making the purchase in the video was the Defendant.
The agent also examined the $50 bills used by Hamilton and determined that they were counterfeit. This determination was based in part on the fact that the bills lacked certain security factors and had duplicate serial numbers, and that the paper quality of the bills did not match the quality of legitimate United States currency.
Accordingly, it was determined that between September 2, 2008 and September 26, 2008, Hamilton passed counterfeit United States currency in the total amount of $1,790 to Abercrombie and Fitch stores located at 199 Water Street and 720 Fifth Avenue. It was also discovered that on August 5, 2009, Hamilton possessed $100 in counterfeit United States currency.
Defendant was arrested on August 5, 2009.
The Relevant Statutory Provisions
The maximum term of imprisonment for Count I is 20 years, pursuant to 18 U.S.C. § 472. If a term of imprisonment is imposed, the Court may impose a term of supervised release of not more than three years, pursuant to 18 U.S.C. § 3583(b)(2).
Hamilton is eligible for not less than one nor more than five years' probation, pursuant to 18 U.S.C. § 3561(c)(1).
The maximum fine is $250,000, pursuant to 18 U.S.C. § 3571. Pursuant to 18 U.S.C. § 3013, a special assessment of $100 is mandatory.
Full restitution to the victim, Abercrombie and Fitch, is required in the amount of $1,790, pursuant to 18 U.S.C. §§ 3663A and 3664.
The Guidelines
The November 1, 2008 edition of the United States Sentencing Commission Guidelines Manual has been used in this case, pursuant to § 1B1.11(a).
The guideline for the violation of 18 U.S.C. § 472 is found in § 2B5.1(a). That Guideline sets a base offense level of 9. Hamilton is entitled to a two-level decrease in his offense level for acceptance of responsibility under § 3E1.1(a).
Accordingly, the applicable offense level is 7.
On or about July 20, 1995, Hamilton was arrested and charged with Armed Robbery in the Aiken County General Sessions Court, Aiken, South Carolina. On February 29, 1996, Hamilton was sentenced to 15 years in custody suspended to five years probation. Pursuant to § 4A1.l(a), this conviction warrants three criminal history point.
On or about May 10, 2005, Defendant was arrested and eventually convicted of Criminal Possession of a Controlled Substance in the 7th Degree in Kings County Criminal Court, Brooklyn, New York. Hamilton was sentenced on May 5, 2005, to conditional discharge, 10 days community service and a six-month suspension of his license. Pursuant to § 4A1.1(c), this conviction warrants one criminal history point.
A total of four criminal history points establishes a Criminal History Category of III, pursuant to the table at Chapter 5, Part A, of the Guidelines.
Based on a total offense level of 7 and a Criminal History Category of III, the Guideline range for imprisonment is 4 to 10 months. The minimum term of imprisonment may be satisfied by (1) a sentence of imprisonment; or (2) a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention, provided that at least one month is satisfied by imprisonment, pursuant to § 5C1.1(c); or (3) a sentence of probation that includes a condition or combination of conditions that substitute intermittent confinement, community confinement, or home detention for imprisonment.
The Guideline range for a term of supervised release is at least two years but not more than three years, pursuant to § 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 § 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 § 5D1.1(a).
Because the applicable Guideline range is in Zone B of the Sentencing Table, Hamilton is eligible for probation provided that the Court imposes a condition that substitutes intermittent confinement, community confinement, or home detention for at least six months, pursuant to § 5B1.1(a)(2). If the Court imposes probation, the term must be at least one year but not more than five years because the offense level for the instant offense is 7, pursuant to § 5B1.2(a)(1).
The fine range for the instant offense is from $500 to $5,000, pursuant to § 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 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, Hunt will be sentenced to time served and a three-year term of supervised release, including four months of home detention.
Hamilton is directed to report to the nearest United States Probation Office within seventy-two hours of release from custody to commence the three-year term of supervised release. It is recommended that Hamilton be supervised by the district of his residence.
As mandatory conditions of his supervised release, Hamilton 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) refrain from any unlawful use of a controlled substance, and shall submit to one drug testing within fifteen (15) days of placement on probation or supervised release and at least two unscheduled drug tests thereafter, as directed by the probation officer; and (5) shall cooperate in the collection of DNA as directed by the probation officer.
Furthermore, the standard conditions of supervision (1-13), set forth in the judgment, shall be imposed with the additional special condition that Defendant shall provide the probation officer with access to any requested financial information and 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 the Defendant is able to pay a fine, and so the fine in this case shall be waived. Defendant is ordered to make restitution in the amount of $1,790 payable to the Clerk, U.S. District Court, for disbursement to Abercrombie and Fitch. Restitution shall be paid in monthly installments of $50 over a period of supervision to commence 30 days after the date of the judgment or the release from custody and must be paid in full not later than the termination of the ordered term of supervised release. 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.