Opinion
04 Cr. 424-05 (RWS).
November 13, 2006
SENTENCING OPINION
On April 6, 2005, Defendant Erven Jean ("Jean") pled guilty to conspiracy in violation of 21 U.S.C. § 846 to distribute and possess with intent to distribute one kilogram and more of heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A). For the reasons set forth below, Jean will be sentenced to 120 months' imprisonment and a five-year term of supervised release. A special assessment of $100 is mandatory and is due immediately.
Prior Proceedings
On May 6, 2004, the government filed a sealed indictment against Jean and his co-defendants, charging them with a single count of conspiracy to distribute and possess with intent to distribute one kilogram and more of heroin. The indictment was unsealed on May 11, 2004, and an arrest warrant for Jean was issued the same day. Jean was arrested on June 7, 2004, and has remained in custody since that time. On April 6, 2005, Jean appeared before the Honorable Henry Pitman of this District and allocuted to the criminal conduct charged in the indictment. Jean is scheduled for sentencing on November 16, 2006.
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 (the "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
Jean was born on October 25, 1983, in Brooklyn, New York. He is the only child born of the relationship between his parents. Until the age of ten or eleven, Jean was raised solely by his mother, as his parents did not stay together.
Jean has stated that around the age of eleven he was placed in a group home because his mother decided she was unable and/or unwilling to care for him. This began a series of placements in approximately five group homes, which continued until the defendant reached the age of seventeen. Jean has reported that he would be placed in a group home for a year or so, after which time his mother would have him returned to her custody. However, after some time had passed, his mother would change her mind and have Jean placed in another group home. At the age of seventeen, when his mother again requested that he be returned home, Jean decided that he did not want to return to his mother and left the group home to live with friends. He reportedly has not had any contact with his mother since that time.
Jean has stated that he has had very limited contact with his father over the years, and that five or six years have passed since their last contact.
The defendant has never been married and has no children, but has been involved in a relationship for several years.
Jean completed the tenth grade of his education while a resident at the Lincoln Watts group home in Yonkers, New York. He began the eleventh grade, but did not resume his education after leaving the group home. Jean hopes to earn his GED in the future.
Jean's only reported prior employment history is working as a kitchen helper at a summer youth job at a group home in 1999, for which he earned approximately $80 per week. Jean has reported no significant assets or liabilities.
The defendant has an extensive history of marijuana abuse. Jean reportedly first tried marijuana when he was about seven or eight years old. He was smoking marijuana on a daily basis by the age of ten, and used the drug regularly until the time of his arrest in the instant case. When asked how frequently he smoked marijuana, Jean replied, "All day, every day." Jean also has reported that he consumed alcohol frequently beginning in his teens and estimated that he had some form of alcohol almost every day until the time of his arrest.
The Offense Conduct
The indictment filed in this action charges that from at least 1999 through May 2004, Jean, along with his nineteen codefendants and others, was a member of a criminal organization in the Bronx that controlled a three-block strip of Daly Avenue between East 179th Street and Bronx Park South (the "Organization"). According to the indictment, the Organization sold heroin all day and late into the night during the period identified in the indictment, conducting tens of thousands of hand-to-hand heroin transactions. The Organization operated out of several buildings, including 2105 Daly Avenue and 2114 Daly Avenue.
The government contends that Jean acted as a "manager" for the Organization. Managers in the Organization sold heroin directly to retail customers and provided heroin on consignment to workers, who then would sell the heroin to customers, paying the managers for the heroin as they were able to sell it.
Based on trial testimony before the Court, the Organization sold an average of twenty-five bundles of heroin a day, which amounts to approximately half a kilogram per month, although the actual amount could vary from month to month. With respect to Jean specifically, the Court finds that he should be held accountable for conspiring to distribute between three and ten kilograms of heroin during his demonstrated involvement with the conspiracy between April 14, 2003, when he first was arrested for criminal possession, and May 11, 2004, when most of his codefendants were taken into custody for the instant offense.
Although the government asserts that the Organization sold "as much as fifty bundles of heroin a day," which is the equivalent of 500 glassines of heroin a day, the Court finds an average daily distribution of twenty-five bundles. The trial testimony of one cooperating witness, who is a former member of the Organization, reveals that the sale of forty to fifty bundles was the "biggest number of bundles [the witness could] ever remember selling in one day." (Caesar Trial Tr. at 137) (emphasis added). That same witness a few moments later then said, in response to further questioning by the government, that "the most bundles is like probably eighty to a hundred." (Caesar Trial Tr. at 137.)
However, a different cooperating witness testified on direct examination that "on an average day" he would be able to sell "anywhere from a couple of bundles, like two bundles, three bundles, all the way up to thirty bundles." (Caesar Trial Tr. at 387.) On a slow day he would sell "anywhere from five bundles or less," and on a "really busy day, anywhere like up to eighty bundles." (Caesar Trial Tr. at 388.) However, he then testified that this latter number was not based on his own experience — but rather gleaned "from talk because you just like hear the guys either complaining about how little drug money they made or they could be boasting about how much drugs they sold that day." (Caesar Trial Tr. at 388) (emphasis added).
The Organization operated in three shifts, with two people — a manager and a pitcher — working each shift. The pitcher conducted most of the sales, while the manager may have sold if the opportunity arose. (Caesar Trial Tr. at 135.) The Court considered both the structure of the Organization and the testimony presented regarding sales when determining the average daily distribution of heroin to attribute to the conspiracy.
The Relevant Statutory Provisions
The statutory minimum term of imprisonment for the sole count of the indictment is ten years, and the maximum term is life, pursuant to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. If a term of imprisonment is imposed, the Court shall impose a subsequent term of supervised release of at least five years pursuant to 21 U.S.C. § 841(b)(1)(A).
Jean is not eligible for probation because the instant offense is a Class A felony and one for which probation has been expressly precluded by statute. 18 U.S.C. § 3561(a)(1)-(2), 21 U.S.C. § 841(b)(1)(A).
The statutory maximum fine is $4 million, pursuant to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. A special assessment of $100 is mandatory. 18 U.S.C. § 3013.
Jean may be declared ineligible for any or all Federal benefits for up to five years as determined by the Court pursuant to 21 U.S.C. § 862(b)(1)(B).
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 Guidelines
The March 27, 2006 edition of the United States Sentencing Commission, Guidelines Manual ("U.S.S.G.") has been used in this case for calculation purposes, in accordance with U.S.S.G. § 1B1.11.
The guideline for a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846 is found in U.S.S.G. § 2D1.1. The Court has determined that Jean is responsible for distributing between three and ten kilograms of heroin. Pursuant to the Drug Quantity Table, the base offense level is 34. U.S.S.G. § 2D1.1(c)(4).
Based on Jean's guilty plea, he has shown recognition of responsibility for the offense. Based on his timely notification of his intention to plead guilty and because the base offense level is greater than 16, the offense level is reduced by three levels pursuant to U.S.S.G. §§ 3E1.1(a) and 3E1.1(b). The resulting adjusted offense level is 31.
The defendant has a number of prior criminal convictions. On April 25, 2000, Jean was convicted of attempted robbery in the third degree. He was adjudicated a youthful offender and sentenced to one year of imprisonment. This conviction results in two criminal history points, pursuant to U.S.S.G. §§ 4B1.1(b) and 4B1.2(d)(2)(A).
Jean was arrested for criminal mischief in the fourth degree on July 11, 2001, and arrested for attempted menacing in the second degree on August 7, 2001. He was convicted of both charges on September 26, 2001, and received concurrent sentences of six months' imprisonment. Each conviction results in two criminal history points, pursuant to U.S.S.G. § 4B1.1(b).
On July 1, 2002, Jean was charged with resisting arrest, and received a conditional discharge on July 2, 2002. Pursuant to U.S.S.G. § 4B1.2(c)(1), no criminal history points are added.
Between April 8, 2003 and August 5, 2003, Jean was arrested four times for criminal possession of a controlled substance in the seventh degree, and received sentences ranging from conditional discharge to sixty days' imprisonment. Because the conduct underlying these arrests appears to be part of the instant offense, no criminal history points are added. U.S.S.G. § 4B1.2(a)(1).
Jean was arrested and charged with reckless endangerment in the second degree on August 11, 2003. He was convicted on September 3, 2003, and received a sentence of thirty days' imprisonment. This conviction results in one criminal history point, pursuant to U.S.S.G. § 4B1.1(c).
On October 1, 2003, Jean was convicted of resisting arrest, and received a sentence of sixty days' imprisonment. This conviction results in two criminal history points, pursuant to U.S.S.G. §§ 4B1.1(b), 4B1.2(c)(1).
Because the instant offense was committed less than two years after release from imprisonment on several of his prior convictions, two criminal history points are added. U.S.S.G. § 4A1.1(e).
The total of the criminal history points is eleven, which establishes a Criminal History Category of V.
Based on an offense level of 31 and a Criminal History Category of V, the Guidelines range for imprisonment is 168 to 210 months.
The authorized term for supervised release under the guidelines is five years, pursuant to U.S.S.G. § 5D1.2(c).
Jean is not eligible for probation because the instant offense is a Class A felony, pursuant to U.S.S.G. § 5B1.1(b)(1), and one for which probation has been expressly precluded by statute, pursuant to U.S.S.G. § 5B1.1(b)(2).
The fine range for the instant offense under the guidelines is from $15,000 to $4 million, pursuant to U.S.S.G. §§ 5E1.2(c)(3)(A) and (c)(4). Subject to Jean's ability to pay, the expected costs to the government of any imprisonment, probation, or supervised release shall be considered in imposing a fine, pursuant to U.S.S.G. § 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.
Pursuant to U.S.S.G. § 5F1.6, eligibility for certain federal benefits may be denied to any defendant convicted of distribution or possession of a controlled substance.
The Remaining Factors of 18 U.S.C.S 3553(a)
Having engaged in the Guideline 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 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). In particular, section 3553(a)(1) asks that the sentence imposed consider both "the nature and circumstances of the offense and the history and characteristics of the defendant," while section 3553(a)(2)(A) demands that the penalty "provide just punishment for the offense" that simultaneously "afford[s] adequate deterrence to criminal conduct" as required by § 3553(a)(2)(B). In addition, section 3553(a)(6) highlights "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."
Like a number of his co-defendants, Jean has a difficult personal history. He has had very little contact of any kind with his father. Between the ages of eleven and seventeen, he was deprived of any kind of stable home environment, being shuttled back and forth between his mother and various group homes. Jean began abusing drugs and alcohol at an early age, and used marijuana and alcohol on a daily basis until his most recent arrest. He did not complete high school and has not obtained his GED. He reports minimal employment history and few marketable skills with which to sustain employment. As a longtime drug abuser with limited job opportunities, it is perhaps unsurprising that Jean supported himself by selling drugs.
The Court also considers the sentences imposed for Jean's prior convictions in determining whether the Guidelines sentence is greater than necessary to achieve the purposes of sentencing set forth at 18 U.S.C. § 3553(a)(2). As the Second Circuit noted inUnited States v. Mishoe, 241 F.3d 214 (2d Cir. 2001),
Obviously, a major reason for imposing an especially long sentence upon those who have committed prior offenses is to achieve a deterrent effect that the prior punishments failed to achieve. That reason requires an appropriate relationship between the sentence for the current offense and the sentences, particularly the times served, for the prior offenses. If, for example, a defendant twice served five or six years and thereafter committed another serious offense, a current sentence might not have an adequate deterrent effect unless it was substantial, perhaps fifteen or twenty years. Conversely, if a defendant served no time or only a few months for the prior offenses, a sentence of even three or five years for the current offense might be expected to have the requisite deterrent effect. . . . In some circumstances, a large disparity in that relationship might indicate that the [Guidelines] sentence provides a deterrent effect . . . in excess of what is required in light of the prior sentences and especially the time served on those sentences. . . .241 F.3d at 220 (discussing downward departure from Guidelines sentence resulting from defendant's career criminal designation).
Here, Jean is facing the mandatory minimum sentence of 120 months, which is a substantial punishment. Despite having a number of prior convictions, Jean has never been sentenced to a term of imprisonment of more than a year. Since turning eighteen, Jean has not been sentenced to a term of imprisonment greater than sixty days. Under these circumstances, the mandatory minimum sentence constitutes a term at least ten times greater than those imposed for Jean's prior offenses.
Finally, in considering the remaining sentencing factors under 18 U.S.C. § 3553(a), the Court must take into account "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. § 3553(a)(6). Since Booker, a growing number of courts have "held that sentencing judges are `no longer prohibited from considering the disparity between co-defendants in fashioning a reasonable sentence.'" Ferrara v. United States, 372 F. Supp. 2d 108 (D. Mass. 2005) (quoting United States v. Hensley, No. 2:04 CR 10081, 2005 WL 705241, at *2 (W.D. Va. Mar. 29, 2005)); see also United States v. McGee, 408 F.3d 966 (7th Cir. 2005); Simon v. U.S., 361 F. Supp. 2d 35, 49 (E.D.N.Y. 2005). A number of Jean's co-defendants with similar records, including two who acted as managers for the Organization, have received sentences of 120 months. In consideration of the factors set forth in 18 U.S.C. § 3553(a), it is determined that a non-Guidelines sentence is appropriate.
The Sentence
For the instant offense, Jean will be sentenced to 120 months' imprisonment, to be followed by a five-year term of supervised release. As Jean 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).
A special assessment fee of $100, payable to the United States, is mandatory and due immediately. Because Jean lacks financial resources, and in consideration of the other factors listed in 18 U.S.C. § 3572, no fine is imposed.
Jean shall report to the nearest Probation Office within seventy-two hours of release from custody. It is recommended that he be supervised by the district of residence.
As mandatory conditions of supervised release, Jean 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; and (4) cooperate in the collection of DNA as directed by the probation officer. The mandatory drug testing condition is suspended due to imposition of a special condition requiring drug treatment and testing.
The standard conditions of supervision (1-13) shall be imposed, along with the following special conditions:
(1) Jean will participate in a program approved by the United States Probation Office, which program may include testing to determine whether he has reverted to using drugs or alcohol. The Court authorizes the release of available drug treatment evaluations and reports to the substance abuse provider, as approved by the Probation Officer. Jean will be required to contribute to the costs of services rendered, in an amount determined by the probation officer, based on ability to pay or availability of third-party payment.
(2) If not completed prior to release from imprisonment, the defendant shall participate in an educational or vocational program to assist in obtaining marketable job skills.
(3) Jean also will 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.
This sentence is subject to modification at the sentencing hearing scheduled for November 16, 2006.
It is so ordered.