Opinion
06 Cr. 784-01 (RWS).
October 17, 2007
SENTENCING OPINION
On April 20, 2007, Winston Hill ("Hill") pleaded guilty to one count of illegal re-entry after a conviction for an aggravated felony. For the reasons set forth below, Hill will be sentenced to 46 months' imprisonment and a two-year term of supervised release. Hill also will be required to pay a special assessment of $100.
Prior Proceedings
Hill was indicted in the Southern District of New York on September 13, 2006 for one count of illegal re-entry.
On April 20, 2007, Hill appeared before the Honorable Frank Maas and entered a plea of guilty to the indictment. The Court accepted Hill's guilty plea by Orders dated April 23, 2007 and April 26, 2007.
Hill is scheduled to be sentenced on October 18, 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
In or about 2001, Hill illegally re-entered the United States without first having obtained the express permission of the United States Attorney General to reapply for admission.
On July 27, 2006, Hill was arrested by the New York City Police Department ("NYPD") in the Bronx, for disorderly conduct. Though Hill used an alias, the NYPD determined his true identity through a fingerprint match and reported the incident to United States Immigration and Customs Enforcement.
The Relevant Statutory Provisions
The maximum term of imprisonment is 20 years, pursuant to 8 U.S.C. § 1326(a) and (b)(2).
If a sentence 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).
Hill is eligible for not less than one nor more than five years' probation, 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).
The maximum fine is $250,000, pursuant to 18 U.S.C. § 3571(b). 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 a violation of 8 U.S.C. § 1326(b)(2) is found in section 2L1.2 which provides for a base offense level of eight, pursuant to section 2L1.2(a).
Because the defendant was deported subsequent to a drug trafficking conviction for which the sentence imposed exceeded 13 months, 16 levels are added, pursuant to sections 2L1.2(b)(1)(A)(i) and 4A1.2(k)(1).
Based on his plea allocution, Hill has shown recognition of responsibility for the offense. Based on his timely notification of his intention to plead guilty and because the offense level is 16 or greater, the offense level is reduced by three levels pursuant to section 3E1.1(a) and (b). The resulting Adjusted Offense Level is 21.
Hill was previously convicted in Queens County Supreme Court of Criminal Possession of a Controlled Substance in the Fifth Degree for which he received a sentence of six months' imprisonment and five years' probation on June 20, 1989. On July 20, 1990, Hill's probation was revoked and he was resentenced to one year's imprisonment. Pursuant to sections 4A1.1(a), 4A1.2(e)(1), and 4A1.2(k)(1) and (2)(B), Hill receives three criminal history points for this conviction.
Hill was also convicted in Queens County Supreme Court of Criminal Possession of a Controlled Substance in the Fifth Degree on January 6, 1993 for which he received a sentence of three to six years' imprisonment. Pursuant to sections 4A1.1(a) and 4A1.2(e)(1), Hill receives three criminal history points for this conviction.
On July 28, 2006, Hill was convicted of disorderly conduct in the Bronx Criminal Court and received a conditional discharge. Pursuant to section 4A1.2(c)(1), Hill receives zero criminal history points for this conviction.
The total of the criminal history points is six. According to the sentencing table at Chapter 5, Part A, six criminal history points establish a Criminal History Category of III.
Based on an Adjusted Offense Level of 21 and a Criminal History Category of III, the Guidelines range for imprisonment is 46 to 57 months.
The Guidelines range for a term of supervised release is at least two but no 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).
The defendant 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 for the instant offense 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, pursuant to section 5E1.2(d)(7). The most recent advisory from the Administrative Office of the United States Courts suggests a monthly cost of $2,036.92 to be used for imprisonment, a monthly cost of $294.60 for supervision, and a monthly cost of $1,799.04 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
For the instant offense, Hill will be sentenced to 46 months' imprisonment and a two-year term of supervised release.
As mandatory conditions of his supervised release, Hill 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) 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 additional special conditions that:
(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 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. 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 immigration authorities.
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 defendant has been detained without bail since his arrest. He is not a candidate for voluntary surrender, pursuant to 18 U.S.C. § 3143(a)(2).
The terms of this sentence are subject to modification at the sentencing hearing scheduled for October 18, 2007.
It is so ordered.