Opinion
No. 02 Cr. 562 (RWS).
November 22, 2005
SENTENCING OPINION
Defendant Melissa Soto, (hereinafter "Soto"), pleaded quilty on May 1, 2002 to the following: (1) one count of conspiracy to commit marriage fraud, a class D felony (Count One); and (2) four counts of marriage fraud, each of which is a class D felony (Counts Two through Five). For the reasons set forth below, Soto will be sentenced to two years of probation on each count, to run concurrently, including four months of home confinement. This sentence is subject to modification at the sentencing hearing currently scheduled for November 22, 2005. A special assessment fee of $500 is mandatory and will be due immediately.
Prior Proceedings
On December 13, 2001, a complaint was filed against Soto, and an arrest warrant issued on that date. Soto was arrested on December 20, 2001, and she was released on her own recognizance, subject to pre-trial supervision and travel restrictions, on that same day. Soto entered a guilty plea before the Honorable Kevin Nathaniel Fox on May 1, 2002, which this Court accepted on the same day. Soto is scheduled for sentencing on November 22, 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 quilty 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
Melissa Soto was reportedly born on November 24, 1981, in Paterson, NJ, to the marital union of Sonia Castillo and Carlos Alberto Soto. The defendant is one of two daughters born to this union. Her sister, Cynthia Soto, 26 years old, is reportedly employed by a local union, and provides assistance to union members by telephone.
According to Soto, her father, who was an alcoholic, committed suicide in 1983, when the defendant was two years old. He reportedly took his life while living with his wife and two daughters.
Following her father's death, the defendant and her sister were raised by their mother in Brooklyn, NY. Her family reportedly relocated frequently, due to her mother's heroin and cocaine addiction. Soto related that she sometimes witnessed her mother's drug use. The defendant and her sister were sometimes cared for by their maternal uncle, Antonio Castillo, who provided the girls with food, school supplies and clothing, when necessary.
In 1987, when the defendant was six years of age, her mother was diagnosed with AIDS. In 1988, her mother's boyfriend of 16 years died of AIDS.
In 1990, the defendant and her sister were compelled to live with their uncle, while their mother served a 16-month sentence of imprisonment for selling drugs. Following her mother's release from custody, Soto and her sister returned to their mother's care. Soto described her relationship with her mother as "normal," although they had a history of disapproving of each other's behavior.
The defendant's mother died on July 27, 2002 of AIDS related complications.
Following their mother's death, the defendant, her sister, and her sister's three children, remained living in the public housing apartment they shared with their mother. They remain at this residence.
The defendant has a son, Marquise Anthony McBride, currently age three, who was born to her four-year relationship to Anthony Marlin McBride, age 33. McBride, a Jamaica, NY resident, is reportedly employed as a teacher at Teresa Kaplan School, a private educational facility for children with learning disabilities and behavioral problems. Soto and McBride reportedly separated in 2002; however, they maintain an amicable relationship. Although ordered in court to pay child support, McBride is reportedly not current on such payments due to financial difficulties.
Soto advised that her son suffers from "overactive airways," which she explained causes him to "take in too much air." The defendant reported that her son is expected to "grow out of" this condition. Her son is not prescribed medication, but he reportedly requires close supervision.
The defendant related that at the age of 15, she attempted suicide approximately one month after being raped. Soto opted not to discuss any matters related to the sexual assault.
According to Soto, she was hospitalized after her suicide attempt for approximately three months at Elmhurst Medical Center in Brooklyn, NY. During her hospitalization, she reportedly underwent daily individual counseling and group counseling. She was reportedly prescribed an unspecified medication during her first week at the medical facility. Following her discharge, the defendant reportedly resumed living with her mother and continued counseling for approximately six months.
The defendant related that she again participated in family counseling during her mother's battle with AIDS.
From the age of 17 until approximately three years ago, Soto reportedly smoked marijuana daily. Additionally, after the death of her mother in August 2002, Soto commenced using cocaine on a weekly basis. She reportedly discontinued drug use after her arrest and the birth of her son.
The defendant noted that with the help of Pretrial Services, in October 2002, she completed a one-month inpatient rehabilitation program, Riverside Support in Port Jervis, NY. Thereafter, she participated in outpatient treatment for approximately one year, in addition to attending Narcotics Anonymous meetings. Soto is not currently involved in meetings or counseling.
A random urine sample provided by the defendant on September 29, 2005 tested negative for illicit drugs.
Soto indicates that she has no assets or liabilities and a net worth of zero.
The Offense Conduct
The investigation of the instant offense was conducted by the U.S. Immigration and Naturalization Service (INS). Based upon information obtained from witnesses, a coconspirator (CC-1) was engaged in the business of arranging fraudulent marriages of aliens, primarily of Arab and Pakistani extraction, to U.S. citizens for profit. It was CC-1's practice to locate young women in financial need in the Bronx, New York, by going neighborhood to neighborhood and becoming familiar with the residents. Once he had located a woman of this description, CC-1 generally asked her if she would be interested in earning money by entering into sham marriages with aliens to allow the aliens to obtain permanent resident status in the United States. CC-1 would, on occasion, arrange for the couples to be chauffeured, two couples at a time, to the appropriate offices to be married and also told the women that out of the $1,000 payment he would provide, they would be expected to pay $200 themselves for the annulment. CC-1 told the women, however, that if they referred another female U.S. citizen to CC-1 to take part in the conspiracy, the annulment fee would be paid by CC-1. On separate occasions in the Bronx, New York, CC-1 proposed this scheme to Soto among others.
Based on a review of immigration records and other records, a special agent learned that in July 1999, Jalal M. Krayem, a native and citizen of Lebanon, entered the United States illegally through Mexico.
On February 1, 2001, Krayem and Soto were married in Yonkers, NY. Also on February 1, 2001, Soto executed a petition seeking permanent resident status for Krayem based on their purported marriage. On that same day, Krayem executed an application seeking a change in his immigration status to a permanent resident.
The immigration documents which were executed on February 2, 2001, were filed on March 12, 2001 at the immigration offices located at 26 Federal Plaza in Manhattan.
Using those documents, on December 11, 2001, Krayem applied for and received advanced parole from the INS, that is, permission to leave the U.S. and return. According to Krayem's application for parole, he was departing the U.S. on December 15, 2001.
Based on the investigating agent's review of INS documents and discussions with other agents, it was learned that Soto was interviewed by another agent on December 9, 2001 and again on December 11, 2001. During those interviews, Soto stated that in exchange for money, she had married approximately four men who were seeking a change in immigration status. One such man was Jalal M. Krayem. Their marriage was reportedly arranged by another unidentified person. In exchange for marrying Krayem on February 1, 2001, Soto was paid $1,000. Soto admitted that she never had a relationship with Krayem prior to marrying him. Additionally, Soto stated that since their marriage, she had no contact with Krayem until a few days prior to this interview, at which time Krayem had called her to request identifying information. He asked her for her social security number and date of birth because he needed such information to make an application for advance parole in order to leave the country.
A warrant for Soto's arrest was issued on December 13, 2001. Soto was placed under arrest on December 20, 2001. The Relevant Statutory Provisions
The statutory maximum term of imprisonment for Count One of the indictment is three years pursuant to 18 U.S.C. § 371. The statutory maximum term of imprisonment for Counts Two through Five is five years on each count pursuant to 18 U.S.C. § 1325(c).
If a term of imprisonment is imposed under any of the five counts in the indictment, the Court subsequently may impose a term of supervised release of not more than three years on each count pursuant to 18 U.S.C. § 3583(b) (2). Multiple terms of supervised release run concurrently pursuant to 18 U.S.C. § 3624(e).
Soto is eligible for not less than one nor more than five years' probation on each count pursuant to 18 U.S.C. § 3561(c) (1). Because the offense is a felony, one of the following must be imposed as a condition of probation unless extraordinary circumstances exist: a fine, restitution, or community service, pursuant to 18 U.S.C. § 3563(a) (2).
The statutory maximum fine is $250,000 on each count, pursuant to 18 U.S.C. § 3571. A special assessment of $100 is required on each count, totaling $500. See 18 U.S.C. § 3013.
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, 2004 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(b)(1).
Counts One through Five have been grouped together pursuant to U.S.S.G. § 3D1.2 (d).
The guideline for a violation of 8 U.S.C. § 1325 (c) is found in U.S.S.G. § 2L2.1, which provides for a base offense level of 11. See U.S.S.G. § 2L2.1 (a).
Based on Soto's plea allocution, defendant has shown acceptance of responsibility for the offense. Pursuant to U.S.S.G. § 3E1.1(a), the base offense level is reduced by two levels.
The adjusted offense level is nine.
Soto has no prior criminal conviction and thus carries no criminal history points, falling into Criminal History Category I.
Based on a total offense level of 9 and a Criminal History Category of I, the guideline range for imprisonment is 4 to 10 months, which is in Zone B of the Guidelines. The minimum term of imprisonment may be satisfied by: (1) a sentence of imprisonment; (2) a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention, provided that at least one month is satisfied by imprisonment, pursuant to U.S.S.G. § 5C1.1 (c); or (3) a sentence of probation that includes a condition or combination of conditions that substitute intermittent confinement, community confinement, or home detention for imprisonment.
The guideline range for a term of supervised release is at least two years but not more than three years on each count pursuant to U.S.S.G. § 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 U.S.S.G. § 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 U.S.S.G. § 5D1.1(a).
Because the applicable guideline range is in Zone B of the Sentencing Table, the defendant is eligible for probation provided that the court imposes a condition that substitutes intermittent confinement, community confinement, or home detention for at least four months pursuant to U.S.S.G. § 5B1.1 (a) (2). If the court imposes probation, the term must be at least one year but not more than five years because the offense level for the instant offense is 9 pursuant to U.S.S.G. § 5B1.2 (a) (1).
The fine range for the instant offense is from $1,000 to $10,000 pursuant to 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 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.
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 (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) (5) (A), "any pertinent policy statement issued by the Sentencing Commission" also must be considered.
Taking the aforementioned factors into account, as well as the fact that the government has submitted a 5K1 letter to reflect Soto's substantial assistance to the government, a Guideline sentence is warranted, subject to the sentencing hearing scheduled for November 22, 2005. The Sentence
For the instant offense, Soto will be sentenced to two years of probation on each count to run concurrently, which must include four months of home confinement.
A special assessment fee of $500 payable to the United States is mandatory and due immediately. Because Soto lacks financial resources and in consideration of the factors listed in 18 U.S.C. § 3572, no fine is imposed.
As mandatory conditions of probation, Soto shall (1) abide by the standard conditions of supervision (1-13); (2) not commit another federal, state, or local crime; (3) not illegally possess a controlled substance; and (4) not possess a firearm or destructive device.
The mandatory drug testing condition is suspended due to imposition of a special condition requiring drug treatment and testing.
Soto shall comply with the conditions of home confinement for a period of four months. During this time, the defendant shall remain at her place of residence except for employment and other activities approved by her probation officer. She will maintain a telephone at her place of residence without call forwarding, a modem, caller ID, or call waiting, and she will not use portable cordless telephones for her four month term of home confinement. At the direction of her probation officer, Soto shall wear an electronic monitoring device and follow electronic monitoring procedures specified by her probation officer. Soto shall pay the costs of home confinement on a self payment or copayment basis as directed by her probation officer.
Soto shall participate in a program approved by the United States Probation Office, which program may include testing to determine whether he has reverted to using drugs or alcohol. The release of available drug testing evaluations and reports to the substance abuse treatment provider, as approved by the Probation Officer, is hereby authorized. Soto is 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 third-party payment.
Soto shall report to the nearest Probation Office within 72 hours of release from the entry of this sentence and shall be supervised by the district of residence.
This sentence is subject to modification at the sentencing hearing now set for November 22, 2005.
It is so ordered.