Opinion
No. 03 Cr. 1257 (RWS).
May 9, 2006
SENTENCING OPINION
Defendant Eddie Saldivar ("Saldivar") has pleaded guilty to conspiracy to distribute and to possess with intent to distribute one kilogram or more of heroin, five kilograms or more of cocaine, and 50 grams or more of crack cocaine, all in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A), and pills containing MDMA, commonly referred to as ecstasy, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C), a Class A Felony. Saldivar is hereby sentenced to 135 months. A term of five years' supervised release is also imposed.
Prior Proceedings
Saldivar was arrested by authorities on October 6, 2003, and has been in custody since that date. An indictment was filed in the Southern District of New York charging Saldivar with conspiracy to distribute and to possess with intent to distribute heroin, cocaine, and crack cocaine, all in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A), and ecstasy, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C). On November 28, 2005, Saldivar appeared before the Honorable Kevin Nathaniel Fox, Magistrate Judge, and pleaded guilty to the above conduct in accordance with the terms of a written plea agreement entered into with the Government. The sentencing hearing is scheduled for May 10, 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") establishing 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 111. The Defendant
Saldivar was born on February 28, 1961, in the Dominican Republic. Saldivar's mother died approximately 24 years ago of kidney cancer. His father and his nine siblings reside in the Dominican Republic. Saldivar was raised by both parents, who were merchants in Santo Domingo. Saldivar maintains regular contact with his family.
In approximately 1986, Saldivar divorced his wife of four years with whom he had one child. Saldivar's son from this union, now age 22, attends school in the Dominican Republic and works odd jobs to help his mother financially. Saldivar reportedly has close contact with his son, and they maintain a good relationship.
Saldivar reported that he legally entered the U.S. in 1989. Immigration records indicate that he entered the U.S. on August 13, 1992, and is currently living in the country legally as a permanent resident.
Saldivar married his second wife, Noelia Rodriguez, in 1999 in Santo Domingo. This marriage, which remains intact, has produced no children. Ms. Rodriguez lives in the Dominican Republic and has never lived in the U.S.
Saldivar has two children from a twelve-year relationship with Elsa Sanchez (who is a co-defendant in this case, identifed as "Jacqueline Hernandez"). Saldivar and Ms. Sanchez met in the Dominican Republic where their eldest child, age 21, was born. Their second child, age 15, was born in the United States. Saldivar maintains regular contact with Ms. Sanchez and their children. At the time of his arrest, Saldivar was living with his two children and Ms. Sanchez, although they maintain a platonic relationship.
Saldivar was assaulted in 1999 and, as a result, was hospitalized for seven days. He was reportedly shot in the abdomen and sustained injuries there. An additional surgery arising from these injuries was required in 2001 due to lumps he developed in areas where he was shot. Due to these injuries, Saldivar continues to suffer from regular pain, "extreme" constipation, and heartburn. As a result of the constipation, he has also developed recurring hemorrhoids.
Saldivar has been prescribed medication for constipation and hemorrhoids. In addition, Saldivar takes medication for high cholesterol and has developed a hearing problem in his left ear.
Saldivar has never sought nor required mental health counseling. He also stated that he has never used drugs. Prior to his arrest, he consumed alcohol nightly, but "not to get drunk." Saldivar has no history of alcohol treatment.
According to Saldivar, he has gambled since the age of 15 on bingo and the lottery. He noted that he spent whatever money he earned on gambling, which was reportedly the primary cause for the divorce from his first wife. Saldivar has never sought treatment for his gambling addiction.
Saldivar completed the second year of high school in Santo Domingo in 1979. He speaks limited English.
Prior to his arrest, Saldivar had been unemployed since 1999. From 1997 to 1999, he was employed as a server at a restaurant in Manhattan. Previously, Saldivar reportedly worked for seven years at the Lopez Grocery store in Manhattan. The Offense Conduct
The following information concerning Saldivar's offense conduct was received from the government. The investigation into the instant offense was conducted by the Drug Enforcement Administration (DEA) with the assistance of a cooperating witness.
The investigation revealed that Henry Berroa, a/k/a "Moreno," Eddie Saldivar, Hector Hernandez, Felix Hernandez, a/k/a "Tony," and Jacqueline Hernandez, a/k/a "Jackie" were (along with others) members of a drug trafficking organization called the "Moreno Organization" that trafficked in large quantities of heroin, cocaine, crack cocaine, and ecstasy in the Bronx and other areas of New York City.
Henry Berroa and Saldivar together ran the Moreno Organization. From 2001 to 2003 numerous meetings and phone conversations with and between members of the Organization were recorded by the cooperating witness. The specific facts underlying these meetings and conversations are adopted as set forth in the Pre-Sentence Investigation Report dated February 27, 2006. Relevant Statutory Provisions
The mandatory minimum term of imprisonment that must be imposed is ten years. 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The maximum term of imprisonment that may be imposed is life imprisonment. Id.
A term of at least five years' supervised release must be imposed if a term of imprisonment is imposed. Id. The maximum term of supervised release that may be imposed is life. Id. The defendant is not eligible for probation because the instant offense is a Class A felony. See 18 U.S.C. 3561(a)(1).
The maximum fine that may be imposed for the defendant's conduct is $4 million. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. A special assessment is mandatory, pursuant to 18 U.S.C. § 3013.
The Guidelines
The November 1, 2005 edition of the United States Sentencing Commission Guidelines Manual ("the Guidelines") has been used in this case for calculation purposes, in accordance with Guidelines § 1B1.11(b)(1).
The guideline for a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 is set forth in U.S.S.G. § 2D1.1. Pursuant to the plea agreement entered into by Saldivar and the Government, the quantity of controlled substances, including relevant conduct, is at least 50 kilograms but less than 150 kilograms of cocaine. The base offense level for at least 50 kilograms but less than 150 kilograms is 36. U.S.S.G. § 2D1.1.
Saldivar has shown recognition of responsibility for his offense. Therefore, because his base offense level is 16 or greater, his offense level is reduced by three levels. See § 3E1.1(a) and (b). The resulting adjusted offense level is 33.
Disputed Adjustments
The plea agreement entered into between the Government and Saldivar contained a stipulation that Saldivar would not seek Safety-valve consideration under 18 U.S.C. 3553(f). Saldivar now argues that he is eligible for a two-level reduction under the Safety Valve and that, as such, the Court need not impose the mandatory minimum statutory term of ten years imprisonment. According to Saldivar, he did not understand the stipulation at the time he signed the plea agreement.
Saldivar argues that in spite of the plea agreement, he is entitled to the Safety Valve because he satisfies the five criteria for Safety-valve eligibility.
The Safety-valve provision requires the following conditions: (1) that the defendant have no more than one Criminal History point; (2) that the defendant not be a leader, organizer, manager or supervisor of others in the offense; (3) that the defendant not possess a firearm in connection with the offense; (4) that the offense did not result in death or serious bodily injury to an individual; and (5) that, by the time of sentencing, the defendant truthfully has provided the Government all information and evidence the defendant has concerning the offense or offenses. See U.S.S.G. §§ 5C1.2(a)(1)-(5). The only disputed requirement here centers on whether Saldivar held a position of leadership in the Moreno Organization.
Under Section 3553(f), a defendant is properly considered a "manager or supervisor" if he "exercise[d] some degree of control over other involved in the commission of the offense . . . or play[ed] a significant role in the decision to recruit or to supervise lower-level participants." United States v. Blount, 291 F.3d 201, 217 (2d Cir. 2002) (internal quotations omitted). "It is irrelevant that [the defendant] may have undertaken these supervisory activities at someone else's behest; what is dispositive is that he took a management role in the criminal scheme." United States v. Leonard, 37 F.3d 32, 38 (2d Cir. 1994).
Saldivar's argument that the facts in the Pre-Sentence Investigation Report demonstrate that he did not recruit others, exercise decision-making authority, or take a larger share of the fruits of the conspiracy are unpersuasive. While the Government did not seek a leadership role enhancement for Saldivar, there is still evidence that Saldivar exercised a leadership role in the organization, given, for instance, his admission that co-defedant Berroa offered him fifty percent of the profits in 2001. Therefore, since the Government has upheld its end of the plea agreement and declined to seek a leadership role enhancement, Saldivar too shall be held to his explicit agreement not to seek the benefit of the Safety Valve. Saldivar has received the benefit of other compromised stipulations in the plea agreement, and, absent a claim of incompetency in entering the agreement, shall not be permitted to challenge the Safety-valve stipulation.
Criminal History
Saldivar has no known criminal convictions, which results in zero criminal history points. According to the sentencing table at Chapter 5, Part A, zero criminal history points establish a Criminal History Category of.
Sentencing Options
Based upon a total offense level of 33 and a Criminal History Category of I, the guideline range of imprisonment is 135 to 168 months.
The guideline range for a term of supervised release is not less than five years, the minimum required by statute, pursuant to U.S.S.G. § 5D1.2(c).
Because the applicable guideline range is in Zone D of the Sentencing Table, the defendant is not eligible for probation, pursuant to U.S.S.G. § 5B1.1, Application Note #2.
The fine range for the instant offenses is from $17,500 to $4 million. See U.S.S.G. § 5E1.2(c)(3)(A) and (c)(4). 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. See U.S.S.G. § 5E1.2(d)(7). The Remaining Factors of Section 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 (2nd 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). Furthermore, pursuant to § 3553(a)(6), the Court is also mindful of "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."
Taking the aforementioned factors into account, it is determined that a Guidelines sentence is warranted. The Court takes particular note of the need to avoid unwanted sentencing disparities. Since Booker, a growing number of courts have "held that sentencing judges are `no longer prohibited from considering the disparity between co-defendants in fashioning a reasonable sentence.'" Ferrara v. United States, 372 F. Supp. 2d 108, 2005 WL 1205758, at *11 (D. Mass. 2005) (quoting United States v. Hensley, 363 F. Supp. 2d 843, 2005 WL 705241, at *2 (W.D. Va. 2005)); see also United States v. McGee, 408 F.3d 966, 2005 U.S. App. LEXIS 10178, 2005 WL 1324815, at *17 (7th Cir. June 3, 2005); Simon v. United States, 361 F. Supp. 2d 35, 49 (E.D.N.Y. 2005). Here, two of Saldivar's co-defendants, William and Enmanuel Hernandez, each received sentences of 120 months. Both William and Enmanuel Hernandez were arrested in 2001, and as such, their involvement in the conspiracy ended at that time. Given that the involvement of William and Enmanuel Hernandez was neither as lengthy as nor had the supervisory attributes of Saldivar's involvement, a sentence below the applicable guildelines range would create an unwarranted sentencing disparity.
The Sentence
In accordance with the above, Saldivar is hereby sentenced to 135 months. A term of supervised release of five years is also imposed. Saldivar shall report to the nearest Probation Office within 72 hours of release from custody, and supervision will be in the district of his residence.
As mandatory conditions of supervised release, Hernandez 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 standard conditions of supervision (1-13) are imposed in addition to the following special conditions: (1) the defendant shall participate in an alcohol aftercare treatment program under a co-payment plan, which may include urine testing at the direction and discretion of the probation officer; (2) the defendant shall obey the immigration laws and comply with the directives of immigration authorities; and (3) the defendant 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 his release may be found, provided the search is conducted at a reasonable time and in a reasonable manner.
Saldivar shall also pay to the United States a special assessment in the amount of $100, which shall be due immediately. Given Saldivar's inability to pay a fine, the fine in this case is waived.
It is so ordered.