Opinion
04 Cr. 424-10 (RWS).
June 12, 2006
SENTENCING OPINION
On April 21, 2005, Defendant Ruben Ramos ("Ramos") appeared before the Honorable Andrew J. Peck of this District and pled guilty to conspiracy in violation of 21 U.S.C. § 846 to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 812, 841 (a) (1) and 841 (b) (1) (A). Ramos's plea was accepted on May 16, 2005. Ramos will be sentenced to time served. A six-year term of supervised release also will be imposed. A special assessment fee of $100 is mandatory and is due immediately.
Prior Proceedings
On May 6, 2004, the government filed a sealed indictment against Ramos and his co-defendants, charging them with a single count of violating 21 U.S.C. § 846, conspiracy to distribute and possess with intent to distribute one kilogram and more of heroin. The indictment was unsealed on May 11, 2004, and a detainer was lodged the same day against Ramos, who was already in state custody. Ramos was transferred on writ to federal custody on May 21, 2004, and he has remained in custody since that time. Ramos entered a guilty plea on April 21, 2005, which this Court accepted on May 16, 2005, and Ramos currently is scheduled for sentencing on June 12, 2006.
The Sentencing Framework
In accordance with the Supreme Court's decision in United States v. Booker, 125 S. Ct. 738 (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
Ramos was born in Manhattan, New York, on February 23, 1964. He has two sisters, both of whom reside in Jacksonville, Florida. Ramos's parents separated when he was young, and he was raised by his mother in the Bronx. His mother supported the family on welfare benefits and by working nights as a barmaid. Ramos reported that his father did not help support the family financially. His mother remarried when Ramos was seven or eight years old.
Ramos began getting into trouble at a young age. When Ramos was about eleven, his mother sent him to live with his father and paternal grandmother in Puerto Rico. The following year, his family decided to send him to military school in Puerto Rico.
Ramos attended the Capparra Military Academy from age twelve to age seventeen, when he dropped out after having completed the tenth grade. Ramos described having difficulty at the school because courses were taught primarily in Spanish and he spoke only English. During the summer months, Ramos would stay with his grandmother or visit his mother occasionally.
After leaving the military academy in 1981, Ramos joined the U.S. Army, and served until 1987. He described his time in the service as "the best time of my life." Ramos was married and divorced while in the Army.
Shortly after leaving the Army in 1987, Ramos was in a motorcycle accident and began using painkillers. He also tried marijuana and cocaine, and used both drugs regularly. Ramos first tried heroin in 1998. He used the drug only occasionally at first, but within about two months was sniffing heroin every day. Ramos stated that he eventually used five or six bags of heroin every day. He noted that at times his mother sent him money to assist with basic expenses such as rent, but that he would use the money to buy drugs.
Ramos was arrested in 1995 and charged with Attempted Criminal Sale of a Controlled Substance in the Third Degree. On January 29, 1999 he was sentenced to five years' probation.
Ramos was arrested again on October 17, 2000 and charged with Attempted Criminal Possession of a Controlled Substance in the Fourth Degree. On January 2, 2001, Ramos was convicted and sentenced to thirty months' to five years' imprisonment. He was released on parole in April 2003.
In 1997, Ramos married a woman he met in a drug rehabilitation program. They separated after his incarceration in 2000, but got back together after his release from prison in April 2003.
Ramos stated that after his release in April 2003, he did not use any drugs for several months. However, he reported that his wife began using drugs, causing problems in the relationship. Depressed about difficulties both at work and in his relationship, Ramos relapsed and began using heroin again in December 2003. Ramos reportedly lived with his mother prior to his remand in April 2004. His relationship with his second wife ended permanently in or about September 2004.
Ramos suffers from asthma, for which he uses an inhaler as needed. He also suffers from heart arrhythmia. In the summer of 2003, Ramos was admitted to Montefiore Hospital for about a month. Ramos stated that he has chest pains when lying down, and takes medication to regulate his heart rate and blood pressure.
Ramos has worked at various times as an electrician, a salesman, and for a carting company. Between the time of his parole in April 2003 and his remand on a parole violation in April 2004, Ramos was employed as an electrician for an elevator company in the Bronx. Ramos earned $22,726 in 2003, and reports no assets.
The Offense Conduct
The indictment filed in this action charges that from at least 1999 through May 2004, Ramos, along with his nineteen co-defendants 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 "Daly Avenue Organization" or 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.
Ramos was a "worker" or "pitcher" for the Organization. Workers or pitchers for the Organization would be provided heroin on consignment by managers in the Organization, and would then sell the heroin to customers, paying the managers for the heroin as they were able to sell it. Workers and pitchers also acted as "steerers," directing customers on Daly Avenue to other workers or to managers to complete sales of heroin. According to the indictment, eleven of Ramos's co-defendants also acted as workers or pitchers.
The government contends that Ramos's involvement in the conspiracy should be dated to October 17, 2000, when he was arrested after being found in possession of heroin during the execution of a search warrant at 1354 Commonwealth Avenue in the Bronx. However, the government has not provided specific evidence to establish that the conduct leading to the 2000 arrest and subsequent conviction was part of the instant conspiracy.
Ramos contends that his involvement with the Organization was limited to a single day and was due to his addition to heroin. Ramos has stated that on March 9, 2004, he was sick and needed heroin, and went to buy the drugs from William Delarosa ("Delarosa"). Since Ramos could not pay for the drugs, he asked Delarosa if Delarosa could "short him" or allow him to buy drugs on credit. Delarosa reportedly refused, but offered to give Ramos heroin if he would help sell drugs. Ramos has claimed that he participated in about five transactions over the course of about an hour and in return was given several glassines of heroin. He has stated that he was unaware of the existence of any organization and did not conspire with anyone.
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 Ramos specifically, the Court finds that he should be held accountable for conspiring to distribute from ten to twenty grams of heroin during his one-day involvement with the conspiracy on March 9, 2004. This is consistent with the amount attributed to codefendant Robert Underwood, who was held responsible for the distribution of between forty and sixty grams of heroin during his three-day involvement with the conspiracy.
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 "any where 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
Ramos contends that because the Government did not charge a specific drug quantity as an element of his indictment, and because he pled guilty only to the relatively small amount of drugs involved in his conduct on March 9, 2004, he cannot be sentenced under 21 U.S.C. § 841 (b) (1) (A). As the Second Circuit recently held:
[D]rug quantity is an element that must always be pleaded and proved to a jury or admitted by a defendant to support conviction or sentence on an aggravated offense under § 841 (b) (1) (A) or (b) (1) (B). If a defendant is convicted only on a lesser unquantified drug charge, he must be sentenced pursuant to § 841 (b) (1) (C), which generally provides no mandatory minimum sentence. In sum, while the district court in its discretion could have sentenced [defendant] to a twenty-year term of incarceration pursuant to § 841 (b) (1) (C), unless a jury found or [defendant] admitted the charged statutory drug quantity, the court was not required to sentence him to that term pursuant to § 841 (b) (1) (A), nor was its departure discretion curbed by that mandatory minimum.United States v. Gonzalez, 420 F.3d 111, 131 (2d Cir. 2005). Ramos did not admit to responsibility for one kilogram or more of heroin during his allocution, nor has the government proven to a jury beyond a reasonable doubt that one kilogram or more of heroin should be attributed to Ramos. Thus, under Gonzalez, no statutory minimum mandatory sentence applies, and Ramos must be sentenced under § 841 (b) (1) (C).
Because Ramos has two prior convictions for felony drug offenses, the statutory maximum term of imprisonment is thirty years, pursuant to 21 U.S.C. § 841 (b) (1) (C). If a term of imprisonment is imposed, the Court shall impose a subsequent term of supervised release of at least six years pursuant to 21 U.S.C. § 841 (b) (1) (C).
Ramos is not eligible for probation because the instant offense is one for which probation has been expressly precluded by statute. 18 U.S.C. § 3561 (a) (2), 21 U.S.C. § 841 (b) (1) (C).
The statutory maximum fine is $2 million, pursuant to 21 U.S.C. § 841 (b) (1) (C). A special assessment of $100 is required. 18 U.S.C. § 3013.
Ramos may be declared ineligible for any or all Federal benefits for up to ten years as determined by the Court pursuant to 21 U.S.C. § 862 (a) (1) (A). Federal benefit is defined to mean any grant, contract, loan, professional license, or commercial license provided by an agency of the United States or by appropriated funds of the United States' but `does not include any retirement, welfare, Social Security, health, disability, veterans benefit, public housing, or other similar benefit, or any other benefit for which payments or services are required for eligibility.'" 21 U.S.C. § 862(d).
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 November 1, 2005 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) (C) and 846 is found in U.S.S.G. § 2D1.1 (a) (3), which specifies that the base offense level is set in accordance with the Drug Quantity Table under U.S.S.G. § 2D1.1(C). At his allocution, Ramos indicated that he knowingly conspired with others to possess, with intent to distribute, heroin. The Court has found that the amount for which Ramos should be held accountable is between ten and twenty grams of heroin. In light of this amount, and pursuant to the Drug Quantity Table, the base offense level is 16. U.S.S.G. § 2D1.1 (c) (12).
Based on Ramos's plea allocution, he has accepted responsibility for the instant offense, and his offense level is accordingly reduced by two levels. § 3E1.1 (a) Furthermore, since he offered timely notice of his intention to plead guilty, thus allowing the government to allocate its resources more efficiently, and the base offense level is 16 or greater, the offense level is reduced one additional level. § 3E1.1(b). The resulting adjusted offense level is 13.
Ramos receives four criminal history points for his prior convictions, pursuant to § 4A1.1. Because Ramos was on probation when the instant offense was committed, two points are added.Id. The total of the criminal history points is six, establishing a Criminal History Category of III.
Based on an offense level of 13 and a Criminal History Category of III, the guideline range for imprisonment is eighteen to twenty-four months.
The authorized term for supervised release under the guidelines is six years, pursuant to U.S.S.G. § 5D1.2(C).
Ramos is not eligible for probation because the applicable guideline range is in Zone D of the Sentencing Table, pursuant to U.S.S.G. § 5B1.1(b) (2), cmt. 2.
The fine range for the instant offense under the guidelines is from $3000 to $2 million, pursuant to U.S.S.G. §§ 5E1.2(c) (3) (A) and 5E1.2(c) (4).
Subject to Ramos'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 $1,933.80 to be used for imprisonment, a monthly cost of $287.73 for supervision, and a monthly cost of $1,675.23 for community confinement.
A special assessment of $100 is mandatory, pursuant to 18 U.S.C. § 3013.
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. § 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, 125 S.Ct. 738 (2005) and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). Pursuant to all of the factors listed in section 3553(a), it is hereby determined that a Guidelines sentence is warranted.
The Sentence
Ramos is hereby sentenced to a term of imprisonment of time served. A sentence of six years' supervised release is also imposed.
A special assessment fee of $100 payable to the United States is mandatory and due immediately. Because Ramos lacks financial resources, and in consideration of the factors listed in 18 U.S.C. § 3572, no fine is imposed.
As mandatory conditions of supervised release, Ramos 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 with the following special conditions:
(1) Ramos shall participate in a program approved by the United States Probation Office, which program may include testing to determine whether Ramos has reverted to using drugs or alcohol. The Court authorizes the release of available drug treatment evaluations and reports to the substance abuse treatment provider, as approved by the Probation Officer. Ramos 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 the third-party payment.
(2) Ramos 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 reasonable manner. Failure to submit to a search may be grounds for revocation. Ramos shall inform any other residents that the premises may be subject to search pursuant to this condition.
Ramos shall report to the nearest Probation Office within 72 hours of release from custody and shall be supervised by the district of residence.
This sentence is subject to modification at the sentencing hearing now set for June 12, 2006.
It is so ordered.