Opinion
09 Cr. 751 (RWS).
December 4, 2009
SENTENCING OPINION
On October 14, 2009, Lepido Ramirez a/k/a "Jose Cruz," a/k/a "Lepido Ramirez-Rodriguez" ("Ramirez" or the "Defendant") appeared before the Honorable Douglas F. Eaton and allocuted to one count of illegal reentry after deportation subsequent to conviction for Criminal Sale of a Controlled Substance in the Second Degree, in violation of 8 U.S.C. § 1326(a) and (b)(2). For the reasons set forth below, Ramirez will be sentenced to 18 months' imprisonment and a term of three years' supervised release. Ramirez also will be required to pay a special assessment of $100.
Prior Proceedings
Indictment 09 Cr. 751 (RWS) was filed in the Southern District of New York on August 5, 2009. It charges that through November 23, 2008, in the Southern District of New York and elsewhere, Ramirez illegally returned to the United States after being deported on April 30, 2001, subsequent to a conviction for Criminal Sale of a Controlled Substance in the Second Degree on July 22, 1999, in New York State Supreme Court, New York County.
Defendant's sentencing is currently scheduled for December 7, 2009.
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. As the Supreme Court explained in Gall v. United States, 552 U.S. 38 (2007):
[A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark. The Guidelines are not the only consideration, however. Accordingly, after giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party. In so doing, he may not presume that the Guidelines range is reasonable. He must make an individualized assessment based on the facts presented.Id. at 49-50 (internal citation and footnote omitted). Thus, in addition to analysis of the Guidelines, the sentence imposed here results from 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 111.
In light of the Court's statutory responsibility "to `impose a sentence sufficient, but not greater than necessary' to accomplish the goals of sentencing," Kimbrough v. United States, 552 U.S. 85, 570 (2007) (quoting 18 U.S.C. § 3553(a)), and having considered the Guidelines and all of the factors set forth in § 3553(a), it is determined that a non-Guidelines sentence is warranted in the instant case.
The Defendant
The Court adopts the facts set forth in the Probation Department's Presentence Investigation Report ("PSR") with respect to Ramirez's personal and family history.
The Offense Conduct
The following description draws on the PSR. The specific facts of the underlying conduct are adopted as set forth in that report.
On July 22, 1999, Ramirez was convicted of Criminal Sale of a Controlled Substance in the Second Degree, a Class A felony, in violation of New York Penal Law § 220.41, in New York State Supreme Court, New York County. On April 30, 2001, Ramirez was deported from the United States to the Dominican Republic, of which he is a citizen.
Following his deportation, on March 29, 2006, Ramirez applied for permission to reapply for admission to the United States. On October 16, 2008, Ramirez's application was denied. Ramirez never obtained the express consent of the Attorney General of the United States or the Secretary of the Department of Homeland Security to reapply for admission to the United States.
On July 20, 2009, Lepido Ramirez submitted a civil finger print card to the New York State Division of Criminal Justice Services (DCJS) in connection with his search for employment. On July 21, 1999, DCJS informed the Bureau of Immigration and Customs Enforcement ("ICE") that the fingerprints Ramirez submitted matched the fingerprints taken in connection with the arrest that led to Ramirez's July 22, 1999 conviction, and that Ramirez had previously been deported from the United States.
On July 24, 2009, ICE agents arrested an individual later determined to be the Defendant in the Bronx, New York. The fingerprints taken of Ramirez after his arrest on July 24, 2009, matched the fingerprints taken of Ramirez in connection with the arrest that led to his July 22, 1999 conviction as well as the right index fingerprint taken of Ramirez when he was removed from the United States on April 30, 2001.
On July 24, 2009, after the Defendant was taken into custody by ICE agents, he stated that he was a citizen of the Dominican Republic, that he was deported from the United States in 2001, that he returned to the United States in November 2008, that he lives in the Bronx, New York, and that he had previously been arrested in 1998 and sentenced to five years in prison.
The Relevant Statutory Provisions
The maximum term of imprisonment for Count I is twenty years, pursuant to 8 U.S.C. § 1326(b)(2). If a term 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).
Ramirez is eligible for not less than one nor more than five years' probation, pursuant to 18 U.S.C. § 3561(c)(1).
The maximum fine is $250,000, pursuant to 18 U.S.C. § 3571(b)(3). Pursuant to 18 U.S.C. § 3013, a special assessment of $100 is mandatory.
The Guidelines
The November 1, 2009 edition of the United States Sentencing Commission Guidelines Manual has been used in this case, pursuant to § 1B1.11(a).
The Guideline for the violation of 8 U.S.C. § 1326 that applies to Ramirez is found in § 2L1.2(a). That Guideline sets a base offense level of 8. Because Ramirez was previously deported following a conviction for a felony that was a drug trafficking offense for which the sentence imposed exceeded 13 months, the offense level is increased by sixteen levels, pursuant to § 2L1.2(b)(1)(A). Ramirez is entitled to a three-level decrease in his offense level for acceptance of responsibility under § 3E1.1(a).
Accordingly, the applicable offense level is 21.
On January 21, 1998, Ramirez was arrested and charged with Criminal Sale of a Controlled Substance in the Second Degree. On July 22, 1999, Ramirez was sentenced in New York Supreme Court to five years' to life imprisonment. Pursuant to § 4A1.1(a), this conviction warrants three criminal history points.
A total of three criminal history points establishes a Criminal History Category of II, pursuant to the table at Chapter 5, Part A, of the Guidelines.
Based on a total offense level of 21 and a Criminal History Category of II, the Guidelines range for imprisonment is 41 to 51 months.
The Guidelines range for a term of supervised release is at least two years but not more than three years, pursuant to § 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 § 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 § 5D1.l(a).
Because the applicable Guidelines range is in Zone D of the Sentencing Table, Ramirez is not eligible for probation, pursuant to § 5B1.1, Application Note 2.
The fine range for the instant offense is from $7,500 to $75,000, pursuant to § 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 § 5E1.2(d)(7). The most recent advisory from the Administrative Office of the United States Courts suggests a monthly cost of $2,157.88 to be used for imprisonment, a monthly cost of $311.94 for supervision, and a monthly cost of $1,990.13 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, and in particular 18 U.S.C. § 3553(a)(1), (2), (5), and (6), it is hereby determined that a non-Guidelines sentence is warranted.
The Fast Track Disparity
Section 3553(a)(6) instructs courts to consider "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). A number of courts, including courts in this district, have recognized the unwarranted sentencing disparities that result from so-called "fast track" programs for dealing with illegal reentry cases. See, e.g., United States v. Miranda-Garcia, No. 05-Cr-202, 2006 WL 1208013, at *2 (M.D. Fla. May 4, 2006); United States v. Ramirez-Ramirez, 365 F. Supp. 2d 728, 731-32 (E.D. Va. 2005); United States v. Galvez-Barrios, 335 F. Supp. 2d 958, 963 (E.D. Wis. 2005); United States v. Bonnet-Grullon, 53 F. Supp. 2d 430, 435 (S.D.N.Y. 1999), aff'd, 212 F.3d 692 (2d Cir. 2000). This Court previously has imposed non-Guidelines sentences in recognition of the fasttrack disparity. See, e.g., United States v. Evangelista, 08-CR-172 (RWS), 2008 WL 5057862, United States v. Santos-Nuez, 05-CR-1232(RWS), 2006 WL 1409106 (S.D.N.Y. May 22, 2006); United States v. Austin, No. 05-CR-744(RWS), 2006 WL 305462 (S.D.N.Y. Feb. 6, 2006); United States v. Santos, 406 F. Supp. 2d 320 (S.D.N.Y. 2005); see also United States v. Seval, 07-CR-1204, 2008 WL 4376826 (2d Cir. Sept. 25, 2008) (remanding for resentencing in light of district court's erroneous view that it did not have discretion to depart from Guidelines based on fast-track disparity).
In response to the increasing number of illegal reentry arrests in certain geographical areas, a number of judicial districts began utilizing fast-track programs to manage charges brought under section 1326 more efficiently. The programs work as follows:
Through charge bargaining or stipulated departures, these programs allow a § 1326 offender who agrees to a quick guilty plea and uncontested removal to receive a reduced sentence. . . . In the Southern District of California, for example, defendants subject to 20 year statutory maximums and guideline ranges of 70-87 months were allowed to plead guilty to an offense carrying a two year statutory maximum penalty. See United States v. Banuelos-Rodriguez, 215 F.3d 969 (9th Cir. 2000). In other border districts, defendants received downward departures to induce fast pleas. See Erin T. Middleton, "Fast-Track to Disparity: How Federal Sentencing Policies Along the Southwest Border Are Undermining the Sentencing Guidelines and Violating Equal Protection," 2004 UTAH L. REV. 827, at 829-30 (2004). Recently, in the PROTECT Act, Congress made fast-track programs official, see Middleton at 838-40, and the Commission then enacted a guideline, § 5K3.1, providing for a 4 level departure on the government's motion pursuant to an early disposition program.Galvez-Barrios 355 F. Supp. 2d at 963. In other words, in districts utilizing fast-track programs, offenders agree to a quick removal, saving the Government resources, and in return they receive reduced sentences.
While fast-track programs may create an efficient solution to an explosion of illegal reentry cases in border districts, they nevertheless result in the type of sentencing disparity cautioned against in section 3553(a)(6). As the court in Galvez-Barrios explained: "Because they operate only in certain districts (typically in southwestern states), an illegal alien stopped in California or Arizona will receive a lighter sentence than an alien convicted of the same offense and with the same record who is found in Wisconsin." 355 F. Supp. 2d at 963.
As the Honorable Lewis A. Kaplan noted, "it is difficult to imagine a sentencing disparity less warranted than one which depends upon the accident of the judicial district in which the defendant happens to be arrested." Bonnet-Grullon, 53 F. Supp. 2d at 435. Because the disparity created is of the type envisioned by section 3553(a)(6), under Crosby it is appropriate for the Court to exercise discretion to minimize the sentencing disparity that fast-track programs create.
Section 3553(a)(5) instructs courts to consider policy statements issued by the Sentencing Commission in determining whether a non-guidelines sentence should be imposed. The Sentencing Commission itself has expressed serious concern about the unwarranted disparities that result from fast-track programs. As the Commission explained:
The statutory requirement that the Attorney General approve all early disposition programs hopefully will bring about greater uniformity and transparency among those districts that implement authorized programs. Defendants sentenced in districts without authorized early disposition programs, however, can be expected to receive longer sentences than similarly-situated defendants in districts with such programs. This type of geographical disparity appears to be at odds with the overall Sentencing Reform Act goal of reducing unwarranted disparity among similarly-situated offenders.
U.S. Sentencing Comm'n, Report to Congress: Downward Departures from the Federal Sentencing Guidelines 66-67 (2003). This acknowledgment by the Sentencing Commission that the existence of fast-track programs creates unwarranted disparities in sentencing militates in favor of imposing a non-Guidelines sentence.
Double-Counting of Criminal History
Ramirez's advisory Guideline range of 41 to 51 months' incarceration is also unreasonable because it double counts his criminal history, using his prior convictions not only to enhance his criminal history category but also to increase his offense level threefold. As one court considering this issue has noted, "[A]lthough it is sound policy to increase a defendant's sentence based on his prior record, it is questionable whether a sentence should be increased twice on that basis." Galvez-Barrios, 355 F. Supp. 2d at 958. The Honorable Jed S. Rakoff cited this arbitrary aspect of the Guidelines in justifying a below-Guidelines sentence for a defendant charged with conduct similar to that of Ramirez. See United States v. Ramon Ramirez, 04-CR-1021(JSR). This Court previously has imposed non-Guidelines sentences to discount the unreasonably harsh effects of double-counting in illegal re-entry cases. See Evangelista, 2008 WL 5057862, at *6;Austin, 2006 WL 305462 at *8-*9; Santos, 406 F. Supp. 2d at 327-28.
In this case, double-counting is inappropriate. Nowhere but in the Guidelines governing illegal reentry is a defendant's offense level increased threefold based solely on a prior conviction. Here, the Defendant's conviction for Criminal Sale of a Controlled Substance in the Second Degree results in an increase of sixteen offense levels. In the case of Ramirez, that conviction also accounts for his only three criminal history points. The result of this double-counting produces a Guidelines range that is unreasonable, given the non-violent nature of the instant offense.
The Sentence
In determining the non-Guidelines sentence to be imposed in this case, it is appropriate to consider how other courts have approached the fast-track disparity and the double-counting issue. In this District, on October 28, 2005, the Honorable Kimba M. Wood imposed a non-Guidelines sentence based upon the unwarranted sentencing disparity in illegal reentry-cases. See United States v. Vernal Mark Deans, 03 Cr. 387(KMW). Judge Wood found that most fast-track illegal reentry jurisdictions on average reduce a sentence by four offense levels, and accordingly rejected the Guidelines range of seventy-seven to ninety-six months and imposed a sentence of fifty-one months. This Court previously has utilized the equivalent of a four-level reduction in the offense level in determining the length of non-Guidelines sentences. Evangelista, 2008 WL 5057862, at *7; Santos-Nuez, 2006 WL 1409106, at *6; Santos, 406 F. Supp. 2d at 329; United States v. Linval (RWS), No. 05-CR-345, 2005 WL 3215155, at *7 (S.D.N.Y Nov. 23, 2005).
The court in Galvez-Barrios applied a three-level departure to offset properly the double-counting of criminal history in illegal re-entry cases. 355 F. Supp. 2d at 964. This Court has applied the equivalent of a three-level adjustment in a number of recent cases involving double-counting. See Evangelista, 2008 WL 5057862, at *7; Santos-Nuez, 2006 WL 1409106 at *7; Austin, 2006 WL 305462, at *9; Santos, 406 F.Supp.2d at 329.
Accordingly, after accounting for the effects of the fast-track disparity and double-counting, Ramirez is more appropriately sentenced at the equivalent of an offense level of 14. Under the Guidelines, an offense level of 14 and a Criminal History Category of II result in a range of 18 to 24 months.
In imposing the sentence, the Court considers the Defendant's criminal history, his motive for illegal re-entry, and the fact that he will face deportation proceedings following his release from custody. Ramirez is hereby sentenced to a term of 18 months' imprisonment, followed by a three-year term of supervised release, should ICE not deport him immediately after he completes his term of imprisonment.
Ramirez is to report to the nearest United States Probation Office within seventy-two hours of release from custody. It is recommended that he be supervised by the district of his residence.
As mandatory conditions of his supervised release, Ramirez 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) refrain from any unlawful use of a controlled substance; and (5) shall cooperate in the collection of DNA as directed by the probation officer. The defendant shall submit to one drug testing within fifteen days of placement on probation or supervised release and at least two unscheduled drug tests thereafter, as directed by the probation officer.
Pursuant to the Violent Crime Control and Law Enforcement Act of 1994, for offenses committed after September 13, 1994, the court shall require that all offenders on probation, parole, or supervised release 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 Defendant does not appear to present a risk of future illicit drug usage. However, as the defendant's prior criminal history involved the possession and distribution of controlled substances, it appear that the imposition of the mandatory drug testing condition should be imposed as a precautionary measure.
Furthermore, the standard conditions of supervision (1-13), set forth in the judgment, shall be imposed with the additional special condition that 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 Defendant is able to pay a fine, and 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 terms of this sentence are subject to modification at the sentencing hearing scheduled for December 7, 2009.
It is so ordered.