Opinion
98 Cr. 350-02 (RWS)
May 20, 2002
SENTENCING OPINION
Defendant Henry Perez-Garcia pleaded guilty on April 9, 1999 to the following: (1) conspiracy to distribute and possess with intent to distribute "crack" and cocaine, in violation of 21 U.S.C. § 84 (Count 1); (2) felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count 2); (3) conspiracy to commit passport fraud, in violation of 18 U.S.C. § 371 (Count 3); (4) passport fraud, in violation of 18 U.S.C. § 1543 (Count 4); and (5) illegal reentry, in violation of 8 U.S.C. § 1326(a), (b)(2) (Count 5). For the reasons set forth below, Perez-Garcia will be sentenced to time served, to be followed by a ten-year term of supervised release, subject to the sentencing hearing now set for May 23, 2002. A special assessment fee of $500 is mandatory and will be due immediately.
The Defendant
Perez-Garcia was born on March 15, 1963 in Santo Domingo, Dominican Republic as the oldest of five children. His father died in 1997 from a heart attack and his mother died in 2001 from cancer. Four of Perez-Garcia's siblings reside in Santo Domingo. The fifth, Alberto Perez-Garcia, age 37, is currently in custody and is a co-defendant in the instant case.
In 1985, Perez-Garcia married Elena Ramirez, age 37, in Santo Domingo. The two divorced in 1990, and have two children together, ages 8 and 13. Perez-Garcia's ex-wife and children reside in Santo Domingo.
According to the Immigration and Naturalization Service ("INS"), Perez-Garcia first came to the United States on February 26, 1991. However, Perez-Garcia reports that he came to the U.S. in 1988. He was deported on September 6, 1996, and there is no record of a legal reentry. From 1988 until 1995, he resided with his ex-wife in Bronx, New York. Following his deportation in 1996, he lived for approximately eight months with his ex-wife and children in Santo Domingo, before deciding to return to the U.S. From 1997 to 1998, he resided in Bronx, New York.
Perez-Garcia has reported that he has been using cocaine since age 30 and that, prior to his arrest in the instant offense, he was using cocaine on a daily basis. From July 1999 to September 1999, he successfully attended a 13-hour substance abuse support group at FCI-Otisville. Perez-Garcia also earned a GED while incarcerated at the Summit Shock (NYS) Correctional Facility in 1996.
The Offense
Perez-Garcia was arrested as a result of an investigation initiated by the Drug Enforcement Administration (DEA). After being informed by a cooperating witness that a group of cocaine dealers was operating out of an apartment at 468 West 153rd Street in New York, NY, investigators arranged for the cooperating witness to pose as a buyer. Perez-Garcia had established the distribution organization and was serving as its leader.
Perez-Garcia was arrested on April 2, 1998 as part of this undercover investigation. His brother, Alberto, was also arrested. Perez-Garcia reported that from early 1997 until his arrest, his group sold up to 5 kilograms of cocaine a week, with 10 percent of sales made up of crack. He stated that from February 1993 to December 1995, the group distributed between 2 and 2 1/2 kilograms of cocaine a week. Perez-Garcia also admitted that he purchased a gun in 1993 for his personal protection and had smuggled it to the Dominican Republic, where he sold it. He admitted that in 1997 a co-conspirator purchased a .380 pistol for the group for protection against robberies.
On April 9, 1999, Perez-Garcia pleaded guilty to: (1) conspiracy to distribute and possess with intent to distribute "crack" and cocaine, in violation of 21 U.S.C. § 846; (2) felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); (3) conspiracy to commit passport fraud, in violation of 18 U.S.C. § 371; (4) passport fraud, in violation of 18 U.S.C. § 1543; and (5) illegal reentry, in violation of 8 U.S.C. § 1326(a), (b)(2).
The Guidelines
The United States Sentencing Guidelines (the "Guidelines")' provide the base offense levels for the offenses for which Perez-Garcia has been convicted.
The 2000 edition of the Guidelines Manual has been used in this case.
Pursuant Section 2D1.1 of the Guidelines, the base offense level for Count 1, the drug conspiracy charge, is 38. Under § 2D1.1(b)(1) of the Guidelines, two levels are added since the defendant was a manager in a narcotics group that possessed a firearm. Another four levels are added for Perez-Garcia's role as leader of the enterprise, yielding an adjusted offense level of 44. See U.S.S.G. § 3B1.1(a).
For Count 2, felon in possession of a firearm, the base offense level is 20 because the defendant had one prior felony conviction involving a controlled substance. See U.S.S.G. § 2K2.1(a)(4)(A). There are no adjustments for this offense.
For Counts 3 and 4, passport fraud and the related conspiracy charge, the Guidelines assign a base offense level of 11. There are no adjustments for this offense.
Finally, for Count 5, illegal reentry, the base offense level is 8. Because the defendant was previously deported after a conviction for an aggravated felony, 16 levels are added under the Guidelines, yielding an adjusted offense level of 24. See U.S.S.G. § 2L1.2(b).
The Probation Office has calculated the combined adjusted offense level as 44, pursuant to Guidelines § 3D1.4. However, because of Perez-Garcia's acceptance of responsibility, three levels have been subtracted, yielding a total offense level of 41.
The Probation Office has reported that Perez-Garcia has three criminal history points for a 1995 conviction in New York County Supreme Court for criminal possession of a controlled substance in the 4th degree. Because at the time the instant offense was committed Perez-Garcia was on parole for the 1995 offense, two points were added to his criminal history points pursuant to Guidelines § 4A1.1(d). Another point was added as the instant offense was committed less than two years after Perez-Garcia's release from custody on July 30, 1996 for a sentence on December 7, 1995, yielding 6 total criminal history points and a Criminal History Category of III. See U.S.S.G. § 4A1.1(e).
However, Perez-Garcia has argued that the offense underlying his 1995 conviction is related to the instant offense and thus cannot be considered a "prior sentence" under the Guidelines. He argues that the 1995 sentence arose from conduct that was part of the same course of conduct or common scheme or plan as the offense of conviction. In other words, the possession leading to the 1995 conviction was "relevant conduct" to the conspiracy offense charged in Count One. Therefore, Perez-Garcia argues that his Criminal History Category should be classified as I. According to the Guidelines, the range for a defendant with a total offense level of 41 and a criminal history category of I is 324-405 months.
The Government has submitted a letter pursuant to Section 5K1.1 of the Guidelines. According to the Government, Perez-Garcia offered substantial assistance in the investigation and prosecution of other persons. Several co-defendants pleaded guilty as a result of Perez-Garcia's efforts to cooperate with the Government, and information provided by Perez-Garcia aided the Government in the investigation and successful prosecution of another, larger drug distribution group that was also housed in New York. One of the five arrested members of that group refused to plead guilty, and Perez-Garcia offered to testify at his trial. Perez-Garcia also provided information about groups of drug dealers located in nearby apartment buildings, which led to yet another indictment issued by the Government. Finally, Perez-Garcia provided information about an individual named Raquel Valentine, a/k/a "Blondie," who was arrested and charged after an undercover agent negotiated to sell cocaine to him.
The Sentence
Perez-Garcia, who has been incarcerated since his arrest on April 2, 1998, will be sentenced to time served. The incarceration will be followed by 10 years of supervised release.
Perez-Garcia is to report to the nearest Probation Office within 72 hours of his release from custody, and supervision shall be in the district of residence. As mandatory conditions of supervised release, Perez-Garcia shall (1) not commit another federal, state, or local crime; (2) not illegally possess a controlled substance; and (3) not possess a firearm or destructive devise. Perez-Garcia shall also abide by the standard conditions of supervision (1-13)
In addition, as special conditions, Perez-Garcia will: (1) comply with the directives of the Immigration and Naturalization Service and the Immigration laws; (2) participate in a program approved by the United States Probation Office for substance abuse, which program may include testing to determine whether Perez-Garcia has reverted to the use of drugs or alcohol. Perez-Garcia 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.
No fine will be imposed due to Perez-Garcia's lack of financial resources at this time. However, a special assessment fee of $500 will be due immediately
This sentence is subject to modification at the sentencing hearing no set for May 23, 2002.
It is so ordered.