Opinion
01 Cr. 410 (RWS).
May 10, 2005
SENTENCING OPINION
On November 30, 2004, defendant Todd Kelly Roberts ("Roberts") appeared before the Honorable Debra C. Freeman of this district and allocuted to one count of conspiracy to distribute 1,4-butanediol in violation of 21 U.S.C. § 846, a Class C Felony. This Court accepted Roberts's plea on May 4, 2005, and he will be sentenced to time served (one day) and three years of supervised release, subject to the further conditions set forth herein, including but not limited to ten months of home confinement.
Prior Proceedings
The factual and procedural histories of this case are detailed in a prior opinion, United States v. Roberts, No. 01 Cr. 410 (RWS), 2002 WL 31014834 (S.D.N.Y. Sept. 9, 2002), familiarity with which is assumed, and will only partly be repeated here. On April 26, 2001, Roberts and Michael Toback, his co-defendant, were indicted for conspiracy to distribute and to possess with the intent to distribute 1,4-butanediol, and for distributing and possessing with the intent to distribute 1,4-butanediol, which the government alleges is, under 21 U.S.C. § 802(32)(A), (the "Analogue Statute"), an analogue of the Schedule I controlled substance gamma hydroxybutyric acid ("GHB"). Subsequently, both defendants filed various pretrial motions, including a motion to dismiss the indictment on grounds that the Analogue Statute is unconstitutionally vague and the indictment is based on procedures which violate the Administrative Procedures Act ("APA").
On December 14, 2001, this Court issued an opinion denying each of the pretrial motions except the motion to dismiss on grounds of vagueness. As to that issue, this Court held a hearing on June 17, 2002, to determine whether the statutory definition of the term "controlled substance analogue" as applied to 1,4-butanediol was unconstitutionally vague. On September 9, 2002, this Court granted Roberts's motion to dismiss on vagueness; however, subsequently, on April 1, 2004, the Second Circuit vacated and remanded for further proceedings, finding the statute constitutional and not unlawfully vague. See United States v. Roberts, 363 F.3d 118 (2d Cir. 2004). Roberts pled guilty in this Court on November 30, 2004, and he is scheduled to be sentenced on May 11, 2005. 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. 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
Roberts was born in Chicago, Illinois, on January 2, 1963, the second of four children, and grew up in Charlottesville, Virginia. His parents divorced when he was seven years old, and his mother remarried several years later, though to a man with whom Roberts reports a poor relationship.
Roberts married in 1991 but divorced in 1992 and has no children. Although Roberts has never remarried, he currently lives at 1158 Jill Lane in Marietta, Georgia, with a woman, Ronny Lipari, whom he had shared a romantic relationship for approximately eight years and for whom he now acts as her exclusive care-taker given that she suffers from a chronic, incurable and debilitating physical illness.
Roberts graduated from Albemarle High School in Charlottesville, Virginia, in 1981. Subsequently, he attended Piedmont Virginia Community College, also in Charlottesville, between the fall of 1982 and spring of 1990, studying primarily engineering and science. He then enrolled in the College of Chiropractic, College of Arts and Science at the Life University in Marietta, Georgia, where he received a bachelors degree in Nutrition and completed the course-work for his doctorate in Nutrition but failed to complete the clinical component required to graduate. On June 20, 2000, Roberts enrolled at Clayton College of Natural Health in Birmingham, Alabama, seeking a Masters of Science in Holistic Nutrition and a Ph.D. in Holistic Nutrition and Naturopathy; to date, he has not earned his graduate degree in any of these fields.
Roberts has long-carried an interest in fitness and bodybuilding. He has trained as a bodybuilder since 1981 and has competed in bodybuilding competitions, earning more than a dozen awards between 1986 and 1993. He also has been a certified fitness trainer with the International Sports Sciences Association.
Over his adult life, Roberts has held numerous jobs in the health and fitness industry, working on both the business and the services side of the industry. From August 1999 until April 2001, he was the Chief Executive Officer of the Barin Corporation, the company that is charged with manufacturing the product involved in the instant offense. The Offense Conduct
On March 13, 2000, GHB was added as a Schedule I controlled substance to the Controlled Substances Act. The substance 1,4-butanediol is a controlled substance analogue of GHB pursuant to 21 USC § 802 (32) (A) because it has a chemical structure which is substantially similar to the chemical structure of GHB, and it has a stimulant, depressant or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant or hallucinogenic effect on the central nervous system of GHB. Thus, as a controlled substance analogue of a Schedule I controlled substance, pursuant to 21 USC § 813, to the extent it is intended for human consumption, 1,4-butanediol is treated, for the purposes of any federal narcotics laws, as a controlled substance in schedule I.
In November 2000, agents from the Drug Enforcement Administration ("DEA") learned from a confidential source that "Rejoov," a product containing 1,4-butanediol, was being sold at Westerly Market. DEA agents arranged several purchases of "Rejoov" from Westerly Market in January, February and March 2001, occasionally making purchases from employees of Westerly Market and other times buying directly from Michael Toback, Roberts's co-defendant.
All of the bottles of "Rejoov" purchased from Westerly Market bore labels identifying the manufacturer as Barin Corporation ("Barin") and some of those labels identified Barin's Internet address, "www.barincorp.com." The investigation revealed that the Chief Executive Officer of Barin and the administrative, technical and billing contact for the Barin Website was Roberts. According to the Web page for Barin (the "Barin Web Page"), the company was "directed towards health and performance" and "dedicated to bringing you the latest technology for optimum health and human performance."
On February 22, 2001, DEA special agents placed an order over the Barin Web Page, using a fictitious name, and requested four 32-ounce bottles of "Rejoov." Shortly after placing the order, the agents received e-mail communications, at an undercover e-mail address that had been set up for this investigation, from a "drconan@prodigy.net." The e-mail communications confirmed that the order had been received and provided a UPS tracking number for the order.
On February 28, 2001, one of the DEA special agents received a package with the return address "Dr. Conan, (770) 281-2887, Barin Corporation, 1158 Jill Lane, Marietta, Georgia 30008" — which is the address at which Roberts currently resides with Ms. Lipari. The package contained four 32-ounce bottles of "Rejoov," and two 2-ounce sample bottles of "Rejoov."
A review of shipping records of the United Parcel Service ("UPS") revealed that Barin shipped approximately seventy boxes to Westerly Market, co-defendant Michael Toback's store, from December 2000 through March 2001.
Todd Kelly Roberts was arrested on April 12, 2001.
The Relevant Statutory Provisions
The statutory maximum term of imprisonment is twenty years, pursuant to 21 U.S.C. § 841 (b) (1) (C). If a term of imprisonment is imposed, the Court subsequently shall impose a term of supervised release of at least three years. Id. Roberts is not eligible for probation. The maximum fine authorized by statute is $1,000,000. Id. A special assessment of $100 is required. See 18 U.S.C. § 3013. Since this is Roberts's first conviction for distribution of a controlled substance, he may be declared ineligible for any or all Federal benefits for up to a period of five years. See 21 U.S.C. § 862 (a) (1) (A).
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, 2000 edition of the United States Sentencing Commission Guidelines Manual ("the Guidelines") has been used in this case for calculation purposes. See § 1B1.11.
The guideline for violation of 21 U.S.C. § 846 is found in §§ 2D1.1(a)(3) and 2D1.1(c)(13), which provides for an offense level of 14 for a defendant found culpable of distributing at least 5,000 but less than 10,000 units of a controlled substance.
The drug quantity being attributed to Roberts falls between 5,000 and 10,000 units as he is responsible for supplying his co-defendant Toback with the stock of "Rejoov" sold at Westerly Market, including the 64-ounces of "Rejoov" which Roberts referenced during his allocution on November 30, 2004.
Based on his plea allocution, Roberts has shown recognition of responsibility for his offense. Thus, the offense is reduced 2 levels. See § 3E1.1(a).
The resulting adjusted offense level is 12.
The defendant has no criminal convictions at this time. Therefore, Roberts has zero criminal history points and a Criminal History Category of I.
Based on a total offense level of 12 and a Criminal History Category of I, the Guidelines range for imprisonment is 10 to 16 months.
The Guidelines range for a term of supervised release is 2 to 3 years. See § 5D1.2(a)(2).
Because Roberts's adjusted offense level and criminal history category place him in Zone C of the Guidelines sentencing table, he is not recommended for probation under the Guidelines. See § 5B1.1, application note 2.
The Guidelines recommend a fine range of $3,000 to $1,000,000 for the instant offense. See §§ 5E1.2(c)(3), (c)(4).
The Guidelines suggest that subject to the defendant's ability to pay, in imposing a fine, the court should consider the expected costs to the government of any imprisonment, probation, or supervised release. See § 5E1.2(d)(7). The most recent advisory from the Administrative Office of the United States Courts suggests a monthly cost of $1,931.97 to be used for imprisonment, a monthly cost of $292.21 for supervision, and a monthly cost of $1,590.66 for community confinement.
The Guidelines state that a court may deny eligibility for certain federal benefits of any individual convicted of distribution or possession of a controlled substance. See § 5F1.6.
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). 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).
The instant offense is Roberts's first criminal conviction. He entered a guilty plea in a timely manner without the benefit of a plea agreement and has accepted responsibility for his conduct. A violation of the law has occurred, irrespective of Roberts's actual intent to distribute unlawfully a controlled substance under the Analogue Statute. Therefore, to further the purposes of general deterrence, an appropriate punishment must be meted out.
"A defendant's family circumstances are part of [his] history and characteristics," United States v. White, 301 F. Supp. 2d 289, 294 (S.D.N.Y. Jan. 30, 2004), and thereby the Court must consider Roberts's extraordinary family circumstances when sentencing him. Id. Although Roberts is not married, he is the sole care-taker for Ms. Lipari, his chronically ill and disabled life partner. Ms. Lipari is unable to work due to her disability and suffers from constant pain, both physical and emotional. Diagnosed with a chronic, debilitating musculoskeletal disease and a degenerative, autoimmune rheumatic disease, Ms. Lipari experiences difficulty with everyday living, including keeping track of medications, cooking and cleaning. Further, she suffers from significant emotional liability, such as crying spells, anxiety attacks and agoraphobia. Ms. Lipari confesses that she often forgets what day it is and experiences acute loss of consciousness and periodic loss of motor control. Given her conditions, she cannot expect to recover.
Roberts lives with Ms. Lipari and acts as her exclusive care-taker, assisting her with any and all of her daily activities, administering her medication, maintaining their residence, and providing her with a regular regiment of physical therapy (as he is certified to do and which Ms. Lipari needs pursuant to her doctor's orders). Since she cannot work, only Roberts can hold a job and earn a steady income to support their home and her medical needs. Ms. Lipari has no other family, instead depending entirely on Roberts for her care, and informs the Court that without Roberts she "wouldn't be able to go on."
The Second Circuit has long recognized the propriety of sentencing below the Guideline range when a term of imprisonment may "wreak extraordinary destruction on dependents who rely solely on the defendant for their upbringing." United States v. Johnson, 964 F.2d 124, 129 (2d Cir. 1992). Compare United States v. Galante, 111 F.3d 1029, 1035 (2d Cir. 1997) (upholding departure where defendant provided substantial support for two children and defendant's wife spoke limited English), and United States v. Johnson, 964 F.2d at 129-30 (upholding departure where defendant was sole supporter of four young children), and United States v. Alba, 933 F.2d 117, 1122 (2d Cir. 1991) (upholding departure where defendant supported wife, two young children, and his disabled father, who relied on defendant to get out of his wheelchair), and United States v. White, 301 F. Supp. 2d at 296 (departing downward as defendant was sole care-giver for six young children between the ages of five and fourteen, when no other adults in the family were willing or able to care for the children should defendant have been incarcerated), with United States v. Smith, 331 F.3d 292, 294 (2d Cir. 2003) (rejecting departure where defendant supported only one young child and his wife was capable of working, although she would have to drop out of college to do so), and United States v. Madrigal, 331 F.3d 258, 260 (2d Cir. 2003) (per curiam) (rejecting departure where only one of defendant's six children was under eighteen and there was no finding made that the defendant was the only family member capable of supporting her family), and United States v. Robles, 331 F. Supp. 2d 218, 220 (S.D.N.Y. Aug. 19, 2004) (rejecting departure where defendant's brother lived in the same vicinity and could assume the care-taking responsibility of their eighty-year-old father whom defendant previously had cared for exclusively).
In United States v. Huerta, 371 F.3d 88 (2d Cir. 2004), the Second Circuit establishes the standard for weighing the severity of the impact of a defendant's incarceration upon a family's circumstances. Specifically, the Circuit articulates that "this factor — the absence or presence of adults who can step in during the defendant's incarceration to assist with caring and providing for the defendant's dependents — is a central part of the extraordinary family circumstances inquiry." Id. at 95. While the Huerta court emphasizes that all families suffer when a family member is incarcerated for any length of time, that expected degree of suffering is exacerbated exponentially when no other adult in the family can provide alternative means of assistance or support for the defendant's dependents. According to the Circuit, when no such reasonable alternative is available, and the defendant is the sole care-taker of his or her dependents, a sentencing court can exercise its discretion under a finding of extraordinary family circumstances.
In this case, the record reflects Ms. Lipari's complete dependence on Roberts as well as the total absence of any other adult who may be able to assume Roberts's responsibilities during any term of incarceration. As such, and given the extreme nature of Ms. Lipari's illnesses, Roberts has satisfied the Second Circuit's Huerta test.
Furthermore, as this Court takes into consideration the "nature and circumstances of the offense," see 18 U.S.C. § 3553 (a) (1), it appears as though Roberts's conduct, while unlawful given the Second Circuit's opinion in United States v. Roberts, 363 F.3d 118 (2d Cir. 2004), falls on the perimeter of the Analogue Statute's intended proscribed conduct. As the Third Circuit found in United States v. Hodge, 321 F.3d 429, 432 (3d Cir. 2003), and as the Fourth Circuit echoed in United States v. Klecker, 348 F.3d 69, 70 (4th Cir. 2003), Congress intended the Analogue Statute to prevent "underground chemists" from unlawfully manufacturing and distributing designer drugs. Roberts's behavior does not mimic that of an "underground chemist" who covertly is attempting to manufacture and distribute an illegal substance.
On the contrary, he advertised his product on a website in which he openly discussed the benefits and chemical components of the product; he shipped the product from his correct home address, making no attempts to hide or obfuscate his location, not even inadvertently as would be the case by posting a P.O. Box mailing address; and, he behaved as though he "were operating a lawful business in an apparently lawful way with some legitimate clients." United States v. Gamez, 1 F. Supp. 2d 176, 183 (E.D.N.Y. 1998) (departing downward as defendants' conduct fell outside of the "heartland" of money laundering cases). Although Roberts's mistaken belief that his product was legal does not remove or diminish his criminal culpability under the Analogue Statute, his conduct falls afield of the statute's "heartland."See Koon v. United States, 518 U.S. 81 (1996).
The Sentence
In order to avert undue hardship on an innocent third party, namely Ms. Lipari, and given that Roberts's conduct falls on the perimeter of the Analogue Statute's "heartland," it is determined that a non-Guideline sentence is warranted. Therefore, a sentence of time served is imposed, followed by a three-year term of supervised release, ten months of which are to be served through home confinement. The terms of home confinement will be established to allow for the necessary monitoring at home and at work, thereby permitting Roberts to continue providing for the long-term care of his life partner, Ms. Lipari.
As Roberts has kept all court appearances, has been in compliance with all terms and conditions of his pretrial release, and is not viewed as a flight risk or a danger to the community, he is deemed a good candidate for voluntary surrender. Roberts is therefore directed to report to the nearest United States Probation Office within 72 hours of imposition of sentence to commence a three-year term of supervised release. It is recommended that Roberts be supervised by the district of his residence.
As mandatory conditions of this supervised release, Roberts 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) submit himself to a special condition requiring drug treatment and testing; and (5) cooperate in the collection of DNA as directed by the probation officer. Furthermore, the standard conditions of supervision (1-13) shall be imposed with the following special conditions:
(1) Roberts will participate in a program approved by the United States Probation Office, which program may include testing to determine whether Roberts has begun 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. Roberts will be required to contribute to the costs of services rendered (co-payment), in an amount determined by the probation officer, based on ability to pay or availability of the thirdparty payment.
(2) Roberts 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. Roberts shall inform any other residents that the premises may be subject to search pursuant to this condition.
(3) Roberts shall provide the probation officer with access to any requested financial information.
(4) Roberts shall comply with the conditions of home confinement for a period of ten months. During this time the defendant will remain at his place of residence except for employment and other activities approved by the probation officer. The defendant will maintain a telephone at his place of residence without call forwarding, a modem, caller ID, call waiting, or portable cordless telephones for the above period. At the direction of the probation officer, the defendant shall wear an electronic monitoring device and follow electronic monitoring procedures specified by the probation officer. Home confinement shall commence on a date to be determined by the probation officer. Should home confinement be imposed, the defendant shall pay the costs of home confinement on a self-payment or co-payment basis as directed by the probation officer.
No fine shall be imposed in this case. However, Roberts shall pay to the United States a mandatory special assessment of $100, which shall be due immediately.
The terms of this sentence are subject to modification at the sentencing hearing set for May 11, 2005.
It is so ordered.