Opinion
00 Cr. 307-01 (RWS)
October 7, 2002
SENTENCING OPINION
On September 18, 2001, Oscar Umberto Jiminez ("Jiminez") pled guilty to one count of possession of contraband by an inmate in violation of 18 U.S.C. § 1791 (a)(2) (d)(1)(B)
The Offense Conduct
On February 25, 1999, Jiminez was writted from New York State custody to the Southern District of New York. This was in conjunction with the charge of Illegal Re-entry After Deportation Subsequent to the Commission of an Aggravated Felony under Indictment 99 CR 81 (RWS). The defendant was placed into remand status, and since that time has been confined to the Metropolitan Correctional Center ("MCC")
During that period of confinement, on June 24, 1999, Jiminez was found by prison officials at the MCC to be in possession of a razor blade which he had concealed in his back brace.
With regard to Indictment 99: CR 81 (RWS), Jiminez was sentenced by this Court on December 6, 2000 to 54 months imprisonment that is to run on a concurrent basis with his New York State term of custody. A three-year period of supervised release was also imposed.
Adjustment for Obstruction of Justice
There is no information to suggest that Jiminez impeded or obstructed justice at the time of his arrest.
Adjustment for Acceptance of Responsibility
Based on his admissions of guilt during his plea allocution, Jiminez appears to have accepted responsibility for his actions.
The Guidelines Offense Level
Under the November 2001 United States Sentencing Commission Guidelines Manual, the guideline for violation of 18 U.S.C. § 1791 (a)(2) is found in § 2P1.2 which provides for a base level offense of 13 if the object was a weapon (other than a firearm or destructive device), any object that might be used as a weapon or as a means of facilitating escape, ammunition, LSD, PCP, methamphetamine, or a narcotic drug.
Due to Jiminez's timely notification of his intention to plead guilty, he qualifies for a 2-level reduction pursuant to § 3E1.1 (a). The offense is reduced two levels to 11.
Adjusted Offense Level
Jiminez's adjusted offense level is 11 under the Guidelines.
Criminal History Category
Available information indicates that Jiminez was represented by counsel in all matters resulting in a conviction, unless otherwise noted.
Jiminez was arrested on August 1, 1987 for operating a motor vehicle while impaired with alcohol after he, while driving his car, struck another vehicle and caused injury. On September 14, 1988, a sentence of 15 days was imposed. This qualifies for 0 criminal history points pursuant to § 4A1.2 (e)(3).
Jiminez was arrested on January 6, 1988 for criminal sale of a controlled substance in the third degree. On January 24, 1989, he received a sentence of one to three years' imprisonment. This qualifies for 3 criminal history points pursuant to § 4A1.1 (a) and § 4A1.2 (e)(1).
On May 18, 1988, Jiminez was arrested for attempted robbery in the second degree. Jiminez, in conjunction with Jairo Ramirez and Henry Caxtra, displayed an imitation pistol to a female victim, at which time they entered her jewelry store and proceeded to rob her. On January 24, 1989, Jiminez received a sentence of one to three years' imprisonment. This qualifies for 3 criminal history points pursuant to § 4A1.1 (a)(1) and § 4A1.2 (e)(1).
With regard to this conviction and that of January 24, 1989, Jiminez was to have had a conditional release from imprisonment on April 26, 1990, with a maximum expiration date of April 26, 1991. Per an order from the Immigration and Naturalization Service ("INS"), Jiminez was released from custody on October 4, 1989, and brought to an INS detention facility. He was deported on October 13, 1989. His parole term expired on April 26, 1991.
On June 21, 1993, Jiminez was arrested and charged with criminal sale of a controlled substance in the third degree after he along with Ellis Guillermo and Alexander Coronado trafficked a quantity of cocaine. On March 28, 1994, Jiminez was sentenced to seven to fourteen years' imprisonment. This qualifies for 3 criminal history points pursuant to § 4A1.1 (a) and § 4A1.2 (e)(1).
During these proceedings, a bench warrant was issued on October 20, 1993. He was returned on the warrant on January 4, 1994, subsequent to a new arrest.
Per his N.Y.S. criminal record, Jiminez has a conditional release date of April 29, 2003, with a maximum expiration date of December 20, 2007.
On January 2 1994, Jiminez was arrested and charged with criminal possession of stolen property in the fourth degree after he was observed operating a motor vehicle in an unsafe manner. The motor vehicle had been stolen from the vicinity of 99th Street and Roosevelt Avenue, Corona, New York. On July 7, 1994, Jiminez was sentenced to 18 months' to 3 years' imprisonment. This qualifies for 3 criminal history points pursuant to § 4A1.1 (a) and § 4A1.2 (e)-(1)
On February 25, 1999, Jiminez was arrested and charged with Illegal Re-Entry After Deportation Subsequent to the Commission of an Aggravated Felony based on several illegal re-entries to the United States. On December 6, 2000, he was sentenced to 54 months' imprisonment, to run concurrent with the custodial sentence imposed in New York State with three years' supervised release to follow. This qualifies for 3 criminal history points pursuant to § 4A1.1(a) and § 4A1.2 (e)(1).
The total of the criminal history points is 15. As Jiminez committed the instant offense while under a criminal justice sentence for that which was imposed in conjunction with his March 28, 1994 conviction, two points are added pursuant to § 4A1.1 (d). As Jiminez committed the instant offense while imprisoned on the sentence imposed in conjunction with his March 28, 1994 conviction, one point is added per § 4A1.1 (e). The total of the criminal history points is 18. According to a sentencing table at Chapter 5, Part A, 13 or more criminal history points establishes a Criminal History Category of VI.
Jiminez also had two other arrests. On June 6, 1987, he was arrested and charged with receiving stolen property and possession of a weapon. That charge was dismissed on September 16, 1996. On December 30, 1992, Jiminez was arrested and charged with attempted entry by fraud and immigration without immigration visa. As a result, he was deported.
Applicable Guidelines Range
The maximum term of imprisonment is five years, pursuant to 18 U.S.C. § 1791 (a)(2) and (d)(1)(B). The Guidelines range for an offender with a base offense level of 11 and a Criminal History Category of IV is 27 to 33 months. Per § 5G1.3 (a), because the instant offense was committed while the defendant was serving a term of imprisonment, the sentence for the instant offense shall be imposed to run consecutively to the undischarged term of imprisonment.
Supervised Release
The Court may impose a term of supervised release of not more than three years, pursuant to 18 U.S.C. § 3583 (b)(2). 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). 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).
The Sentence
In light of the foregoing, Jiminez shall be sentenced to 30 months in prison, the middle of the Guideline range, a term which is to run on a consecutive basis to that imposed in New York State and under indictment 99 CR 81 (RWS), to be followed by three years of supervised release. Jiminez will also pay a mandatory special assessment of $100, pursuant to 18 U.S.C. § 3013.
The following conditions of supervised release are mandatory: Jiminez shall not (1) commit another federal, state or local crime; (2) illegally possess a controlled substance; or (3) 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.
Jiminez will be subjected to the standard conditions of supervision (1-13). In addition, Jiminez will participate in a program approved by the United States Probation Office for substance abuse, which program may include testing to determine whether Jiminez has reverted to the use of drugs or alcohol. The defendant will be required to contribute to the costs of services rendered (co-payment) in an amount to be determined by the probation officer, based on ability to pay or availability of third-party payment. Jiminez shall comply with the directives of the Immigration and Naturalization Service and the Immigration laws. Jiminez is to report to the nearest Probation Office within 72 hours of release from custody and is to be supervised by the district of residence. He is to pay the United States a special assessment of $100, due immediately.
This sentence is subject to further hearing on October 15, 2002.
It is so ordered.