Opinion
No. S13 98 Cr. 1316-11 (RWS).
February 2, 2001.
SENTENCING OPINION
Pursuant to a written plea agreement, defendant Evelyn Hernandez ("Hernandez") pled guilty on April 10, 2000 to making her apartment available for the purpose of storing, distributing and using heroin, in violation of 21 U.S.C. § 856(a)(2), and 18 U.S.C. § 2. For the reasons set forth below, Hernandez will be sentenced to a term of five years of probation. Hernandez shall pay a mandatory $100 special assessment pursuant to 18 U.S.C. § 3013.
Hernandez, at 35 years old, is the eldest of four children born to Jacinto Hernandez and Nuns Quiles in Puerto Rico. Her parents live in Puerto Rico, where her father works as a carpenter and her mother is a housewife. Two of her siblings also live in Puerto Rico, and her youngest sister, Joanna, age 25, lives with Hernandez in Rochester, New York.
Although her father amply supported the family while Hernandez was a child, he is an alcoholic with a tendency toward verbal and physical abuse, particularly when he has been drinking. At times, her parents' arguments became so volatile that household objects were used as weapons. Hernandez has taken medication for asthma since she was a child, and must use an asthma therapy machine, similar to an oxygen mask, at least twenty minutes every three hours during attacks.
Hernandez married Miguel Mulero ("Mulero) in Puerto Rico after she graduated from high school in 1984. They have three children together, Johan, age 13, Alexandra, age 10, and Franchesca, age 9. When Mulero left her in 1997, she moved back into her parents' house with her children, but her father soon threw her out of the house.
She moved to New York in 1997 with her children and lived in a homeless shelter for several months, until she found an apartment at 2318 Crotona Avenue through public assistance. To deal with the pain of losing Mulero, Hernandez began using heroin regularly for seven or eight months. During this period of separation from Mulero, she became involved with Luis Ortiz, a co-defendant in this case who had a serious addiction to heroin. Their relationship lasted only four or five months, and she asked Ortiz to leave when she discovered that he had been storing drugs in her apartment.
After her arrest, she enrolled in a daily detoxification and drug treatment program at the Alianza Dominicana Center for Rehabilitation Education and Orientation. The Center's Program Director reports that she did "extremely well," and never tested positive for drug use during her six months of enrollment. A test in September 2000, by the Pretrial Services Office also returned negative for all controlled substances. By all accounts, Hernandez has been drug-free at least since November of 1998 — over two years ago — and has changed her physical environment in order to support her rehabilitation. She has reunited with her husband and moved to Rochester, New York, where she now lives with Mulero, her children, her sister and her brother-in-law, and works as a seamstress. The family plans to move to Orlando, Florida in the hopes that the warmer climate will mitigate the effects of her asthma.
The Offense
Hernandez was arrested on October 28, 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 Hernandez, were charged with violating federal narcotics laws.
Hernandez's role in the offense was to allow her apartment to be used as a stash house. The evidence suggests that she likely knew little, if anything, about Ortiz's activities. First, the heroin seized from her apartment had been hidden inside the plastic leg of a children's table. Second, during the course of the criminal conduct charged, September through October 27, 1998, Hernandez was hospitalized twice, for a total of fifteen days, for severe asthma attacks. Finally, she threw Ortiz out once she discovered that he had been storing heroin in her apartment. Her limited involvement was discovered only when police executed a search warrant in her apartment pursuant to the investigation of her boyfriend and learned that the apartment was leased under her name.
The Guidelines
The Presentence Report prepared by the U.S. Probation Office grades Hernandez's conduct under the 1998 version of the United States Sentencing Guidelines ("the Guidelines") at a base offense level of 34 pursuant to §§ 2D1.8(a)(1), 2D1.1(c)(3), and the Drug Quantity Table. However, the presentence report recognizes that because Hernandez had no participation in the underlying offense other than allowing her apartment to be used, § 2D1.8 requires that the offense level be no greater than 16. Probation Office recommends a three-point reduction for acceptance of responsibility pursuant to Guidelines §§ 3E1. 1(a) and (b), resulting in an adjusted offense level of 13.
Because Hernandez has no criminal history, her Criminal History Category is I. Based upon these calculations, the presentence report recommends a Guideline range of twelve to eighteen months.
Hernandez entered into a plea agreement with the Government stipulating to the same facts, and recommending the same Guideline range. However, Hernandez reserved the right to move for a downward departure, and has done so on the basis of her severe asthma, pursuant to U.S.S.G. § 54H1.4; her extraordinary family circumstances, pursuant to § 5H1.6; and extraordinary rehabilitation from narcotics addiction, pursuant to § 3E1.1.
A departure from the Guidelines is warranted when "`there exists an aggravating or mitigating circumstance . . . not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.'" U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). A sentencing court must consider, among other things, "the history and characteristics of the defendant," and the need for the sentence to "protect the public from further crimes of the defendant" and to "provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." 18 U.S.C. § 3553(a).
Hernandez moves for at least a four-level downward departure based upon her minimal role, pursuant to § 3B1.2. Although the facts of this case do in fact establish that her role was de minimis, the Guidelines do not allow downward departures under § 3B1.2 where, as here, the defendant's offense level has been established pursuant to § 2D1.8(a)(2). See U.S.S.G. § 2D1.8(b)(1) ("If the offense level is determined under subsection (a)(2), do not apply an adjustment under § 3B1.2 (Mitigating Role).").
Hernandez's significant and successful efforts at rehabilitation from her addiction to heroin since her arrest are extraordinary factors warranting a downward departure in this instance. See § 3E1.1, App. n. 1(g) (recognizing that post-offense rehabilitation efforts such as drug treatment warrant reduction in offense level); United States v. Herman, 172 F.3d 205, 207 (2d Cir. 1999) (citing United States v. Maier, 975 F.2d 944, 948 (2d Cir. 1992) (holding that district courts in the Second Circuit may depart on the grounds of extraordinary drug rehabilitation); see also United States v. Harrington, 947 F.2d 956, 962 (D.C. Cir. 1991) (presentencing drug rehabilitation might justify departure); United States v. Sklar, 920 F.2d 107, 116 (1st Cir. 1990) (same); United States v. Maddalena, 893 F.2d 815, 818 (6th Cir. 1989) (defendant's efforts at staying away from drugs are grounds for departure).
The Sentence
In a downward departure, Hernandez shall be sentenced to five years of probation. See Maier, 975 F.2d at 949 (affirming downward departure from Guideline range of 51-63 months plus 3 years of supervised release to four years of probation and continuing drug treatment for defendant who was making positive strides toward rehabilitation); United States v. Luz Pagan, No. 98 Cr. 1316 (RWS), 2000 WL 385515 (S.D.N.Y. April 14, 2000) (for co-defendant of Hernandez also convicted of allowing her apartment to be used as a stash house, downwardly departing from Guideline range of 12 to 18 months to five years of probation).
The term of probation is subject to the mandatory conditions that Hernandez (1) follow the standard conditions of probation; (2) not commit another federal, state, or local offense; and (3) not unlawfully possess a controlled substance and submit to one drug test within 15 days from the date this sentence is imposed, and at least two periodic drug tests thereafter at the discretion of the Probation Office; of this sentence.See U.S.S.G. § 5B1.2; 18 U.S.C. § 3583(d).
Although the Congress has contemplated a fine between $1,000 and $500,000 for this offense, See 21 U.S.C. § 856(a)(2); see also § 5E1.2(c)(4), upon a review of Hernandez's financial statement, no fine will be imposed. However, Hernandez 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.