Opinion
No. 04 Cr. 424-8 (RWS).
February 7, 2006
SENTENCING OPINION
On May 5, 2005, Defendant Robert Underwood ("Underwood") appeared before this Court and allocuted to the conduct charged in the sole count of the indictment, conspiracy in violation of 21 U.S.C. § 846 to distribute and possess with intent to distribute one kilogram and more of heroin. Underwood will be sentenced to thirty-six months incarceration and five years supervised release. 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 Underwood 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 an arrest warrant for Underwood was issued on the same day. Underwood was arrested on June 17, 2004, and he has remained in custody since that time. Underwood entered a guilty plea on May 5, 2005, which this Court accepted on that date, and currently Underwood is scheduled for sentencing on February 8, 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
The defendant was born on November 2, 1982 in Brooklyn, New York. The defendant's mother currently resides at an unknown address in Brooklyn. The defendant grew up without his father, meeting his father for the first, and only, time when he was 20 years old. Underwood reported that his father was in jail for a long period of time, but he is unsure why or where he was incarcerated.
The defendant grew up in Brooklyn and lived with his mother until he was 17 years old. The defendant's mother re-married when the defendant was very young, and this marriage resulted in four children. Underwood informed that he was close with his step-father and that he had a good childhood. He also stated that he was well taken of. However, Underwood began having problems in the household when he was a teen and his relationship with his family suffered as a result. Currently, Underwood does not speak with or see his mother, step-father, or siblings.
When the defendant was seventeen years old, he met his girlfriend and shortly thereafter began living with her. They have resided together for the five years prior to his incarceration and have one child together. The defendant reported that his relationship with his girlfriend is strained right now due to the defendant's incarceration.
The defendant has an extensive history of mental health treatment. According to a psychiatric evaluation, prepared by Dr. Richard Dudley in October 2005 ("Dudley Report"), Underwood is "suffering from a Psychotic Disorder within the Schizophrenic spectrum of disorders." Underwood has displayed psychotic behavior, including paranoid delusions and auditory hallucinations, and he has been hospitalized numerous times due to these symptoms. (Id. at 7.)
Underwood was admitted to Mt. Sinai on March 8, 2004 and was found to have "paranoid ideations," as well as being "clinically depressed." (Id. at 7, 9.) He left on March 15, 2004, spent one night between March 15 and March 17 in another hospital but was not admitted, and on March 17, 2004, he was admitted to Lincoln Hospital. (Id. at 7.) At Lincoln Hospital, he was diagnosed with Chronic Paranoid Schizophrenia and was put on several medications. (Id. at 8.) The next day, on March 18, 2004, Underwood walked out of Lincoln Hospital. He was in and out of hospitals until he was again admitted to Lincoln Hospital on April 21, 2004 and was placed on involuntary admission until May 19, 2004, as he was "psychotic, suicidal and homicidal/assaultive." (Id. at 9.)
Underwood was then admitted to St. Barnabas Hospital on May 25, 2004 and was found to be suffering from "auditory hallucinations, paranoid delusions, ideas of reference, disorganized thinking, thought blocking and suicidal ideation." (Id. at 8.) He began taking additional medications and remained at St. Barnabas until June 14, 2004. (Id.)
According to Dr. Dudley, Underwood is suffering from "Psychotic Disorder NOS." (Id. at 10.) Furthermore, these psychiatric symptoms "significantly impaired his ability to function during the time period pertaining to this matter (the last months of 2003, and the first half of 2004)." In addition, it is the opinion of Dr. Dudley that Underwood's thinking was impaired and he was unable to comprehend the magnitude of his involvement in the conspiracy he with which he is charged. (Id. at 12.)
According to the defendant, he started using marijuana at age 15 and used it four or five times daily. He last used marijuana in March 2004. The defendant also reported that he began using cocaine in mid-2003 and he also used that everyday until his incarceration. Underwood also tried ecstasy five to seven times. The defendant has never received treatment for his drug usage.
Underwood struggled in school from an early age. In addition to being held back in the fifth grade, he almost was held back again in the sixth grade. At that time, he was evaluated for special education classes due to his academic and behavioral problems. An IQ test revealed borderline intellectual functioning, specifically indicating his functioning at about the age level of 6 years 6 months to 6 years 11 months. He began special education classes in the sixth grade, and his mother initiated counseling sessions, which were believed to be helpful to him. (Id. at 5.)
The defendant attended Thomas Jefferson High School in Brooklyn New York until 1997, after which he was expelled for fighting. At this time, the defendant was placed in a Youth Detention Facility in Brooklyn. He remained at this facility for approximately one year. As verified, the defendant then attended Tilldon High School in Brooklyn until he was expelled from this school on April 26, 1999 due to fighting. The defendant then transferred to South Shore High School in Brooklyn. As verified, he attended South Shore in 1999 but dropped out in 2000 while in the 10th grade. School records show that Underwood was a poor student and he was classified as "emotionally disturbed."
The defendant denied having any employment history and denied having any assets or liabilities. He has no work history and has never had to file income tax returns.
The Offense Conduct
The indictment filed in this action charges that from at least 1999 through May 2004, Underwood, along with his nineteen co-defendants and others, were members 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.
Underwood 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 Underwood's co-defendants also acted as workers or pitchers.
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 of a kilogram per month, although the actual amount could vary from month to month. With respect to Underwood specifically, his involvement was limited to three days: December 18, 2003 and February 12, 2004, both days on which Underwood was observed by law enforcement to be in the company of his co-defendants and in the vicinity of Daly Avenue; and December 19, 2003, the one day on which Underwood was arrested of a narcotics offense, including misdemeanor possession of heroin.
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." (Trial Trans. p. 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." (Tr. Trans. p. 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." (Tr. Trans. p. 387). On a slow day he would sell "anywhere from five bundles or less," and on a "really busy day, anywhere like up to eighty bundles." (Tr. Trans. p. 388). But, 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." (Tr. Trans. p. 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. (Tr. Trans. p. 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.
Although Underwood's co-conspirators were held accountable for the entire quantity of heroin distributed over the length of each man's involvement with the conspiracy, Underwood presents a situation unique from any of his co-defendants. Given the extent of his mental impairment during his involvement with the conspiracy, as reported by Dr. Dudley's psychiatric report, during the course of his alleged involvement (beginning in December 2003 and extending until June 2004), Underwood lacked the mental capacity to enter into a knowing agreement to distribute heroin beyond what he himself possessed or assisted in distributing. Underwood spent the majority of the three months prior to his June 2004 arrest in and out of psychiatric hospitals, where he received concentrated treatment for his mental illness. Because Underwood was not capable, by reason of mental illness, of forming the intent to engage in the conspiracy alleged in the indictment, he was too sick to conspire in any broad sense, beyond purchasing drugs on consignment for resale primarily to feed his own drug addiction.
As such, Underwood will be held accountable for distributing between 40 grams and 60 grams of heroin during his involvement with the conspiracy.
Underwood was involved in the conspiracy for three days, and the Court has found that the organization distributed approximately 25 bundles per day. Although Underwood caps the quantity which he sold at 50 bundles, (Defendant Sentencing Memorandum, dated Jan. 23, 2006, p. 11), three days of involvement in the conspiracy resulted in the distribution of approximately 49.95 grams of heroin. Given the testimony offered by Underwood's co-defendants on the average number of bundles sold by individuals on an average day, the distribution of 49.95 grams will be attributed to Underwood over the length of his involvement in the conspiracy.
Underwood was arrested on June 17, 2004.The Relevant Statutory Provisions
The statutory minimum term of imprisonment for the sole count of the indictment is ten years and the maximum term is life, pursuant to 21 U.S.C. §§ 841(a) (1), 841(b) (1) (A) and 846. The applicability of the statutory minimum sentence may be limited in certain cases pursuant to 18 U.S.C. §§ 3553(f)(1)-(5).
If a term of imprisonment is imposed, the Court subsequently shall impose a term of supervised release of at least five years pursuant to 21 U.S.C. § 841(b)(1)(A).
Underwood is not eligible for probation because the instant offense is one for which probation has been expressly precluded by statute, pursuant to 18 U.S.C. § 3561(a) (1) and 21 U.S.C. § 841(b)(1)(A).
The statutory maximum fine is $4 million, pursuant to 21 U.S.C. §§ 841 (a) (1), 841(b) (1) (A) and 846. A special assessment of $100 is required. See 18 U.S.C. § 3013.
Upon a second or subsequent conviction for possession of a controlled substance, Underwood may be declared ineligible for any or all Federal benefits for up to five 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.'"See 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 10-year Statutory Minimum Sentence Is Not Applicable
The Second Circuit recently held in United States v. Gonzalez, 420 F.3d 111, 131 (2d Cir. 2005):
[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.
Underwood did not admit to a specific quantity of heroin during his allocution, nor has the government proven beyond a reasonable doubt that one kilogram or more of heroin should be attributed to Underwood. Thus, under Gonzalez, no statutory minimum mandatory sentence applies.
The Guidelines Offense Level
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(b) (1).
The guideline for a violation of 21 U.S.C. §§ 841(a) (1), 841(b) (1) (A) and 846 is found in U.S.S.G. § 2D1.1(a) (2), which specifies that the base offense level is set in accordance with the Drug Quantity Table under U.S.S.G. § 2D1.1(c) (2). At his allocution, Underwood pled guilty to the sole count of the indictment; he did not, however, allocute to an amount of heroin that he distributed or had the intent to distribute. Based on the preceding quantity determination,supra pp. 8-11, the Court finds that the amount for which Underwood should be held accountable is between 40 grams and 60 grams of heroin. In light of this latter amount, and pursuant to the Drug Quantity Table, the base offense level is 20.
Pursuant to U.S.S.G. § 1B1.3, comment. n. 2, in the case of controlled substances, a defendant is accountable only for quantities "with which he was directly involved" and, as to jointly undertaken criminal activity, only for "reasonably foreseeable quantities" within the scope of that activity. As discussed previously, supra pp. 8-10, given Underwood's severe mental illness and impaired mental state, no other quantities, other than what he distributed himself, were reasonably foreseeable to him.
Based on Underwood's plea allocution, he has accepted responsibility for the instant offense. Furthermore, since he offered timely notice of his intention to plead guilty, thus allowing the government to allocate its resources more efficiently, the offense level is reduced three levels, pursuant to U.S.S.G. §§ 3E1.1(a), (b).
The adjusted offense level resulting from the foregoing calculations and discussion is 17.
Criminal History
Underwood has five convictions which produce criminal history points under the Guidelines. He totals seven criminal history points, placing him in Criminal History Category IV.
Guideline Sentence
Based on the offense level of 17 and a Criminal History Category of IV, the guideline range for imprisonment is 37 to 46 months.
The authorized term for supervised release under the guidelines is five years, pursuant to U.S.S.G. § 5D1.2(b).
Underwood 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), comment. n. 2.
The fine range for the instant offense under the guidelines is from $17,500 to $4 million, pursuant to U.S.S.G. §§ 5E1.2(c) (3) (A) and 5E1.2(c) (4).
Subject to Underwood'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, the remaining factors identified in 18 U.S.C. § 3553(a) are considered in order to impose a sentence "sufficient, but not greater than necessary" as is required in accordance with the Supreme Court's decision inUnited 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). These considerations must be taken together with the need "to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." 18 U.S.C. § 3553(a) (2) (D).
As described earlier, Underwood has struggled with obstacles. Suffering the severe effects of mental illness, drug addiction, and impaired intellectual functioning, he has received counseling and medication in order to battle the emotional and psychological difficulties he has faced.
He has been incarcerated previously, though his longest term of imprisonment totaled one year. Given that Underwood already has been in custody since June 2004, any sentence of considerable time will achieve the goals of just punishment and deterrence. Furthermore, as Underwood needs continued psychiatric care, medication and supervision to overcome his drug addiction and to learn to manage his mental illness, a lengthy term of supervised release with mandatory conditions requiring both substance abuse treatment and mental health treatment will assist Underwood in getting the medical care and treatment that will be critical to reassembling his life.
Finally, in considering the remaining sentencing factors under 18 U.S.C. § 3553(a), the Court must take into account "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). 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, ___ F.3d ___, 2005 WL 1205758, at *11 (D. Mass. May 13, 2005) (quoting United States v. Hensley, No. 2:04 CR 10081, 2005 WL 705241, at *2 (W.D. Va. Mar. 29, 2005));see also United States v. McGee, ___ F.3d ___, 2005 WL 1324815, at *17 (7th Cir. June 3, 2005); Simon v. U.S., 361 F. Supp. 2d 35, 49 (E.D.N.Y. 2005).
The majority of Underwood's co-defendants are pitchers or workers within the Organization, many of whom have minimal criminal histories. All of Underwood's co-defendants have similar upbringings, receiving little stability and support during their childhoods, and developing addictions to controlled substances at early ages.
Underwood's similarly situated co-defendants were involved in the conspiracy for significantly longer periods of time than Underwood and did not suffer from psychiatric disorders of comparable magnitude as Underwood. As such, these co-defendants were found to possess the necessary state of mind to enter into a knowing agreement to distribute one kilogram or more of heroin; none of his co-defendants challenged the quantity of drugs distributed by the conspiracy, adducing evidence to demonstrate insufficient mental capacity as did Underwood. These co-defendants have been sentenced to 48 months incarceration, 60 months incarceration, or time served with three years of home confinement followed by five years of supervised release. The Court takes note of these sentences imposed on Underwood's similarly situated co-defendants in an effort to be aware of the "just punishment" afforded other co-defendants and thereby "avoid unwarranted sentence disparities" in accordance with 18 U.S.C. § 3553(a) (6).
Furthermore, the record illuminates Underwood's prolonged struggle with a severe mental illness. It has been shown that Underwood responds constructively to counseling and medication, therapy and drug treatment, which the Court also has taken into consideration.
The Sentence
For the instant offense, Underwood is sentenced to thirty-six months imprisonment and five years supervised release with the special condition that he receive mental health treatment and substance abuse treatment as needed.
A special assessment fee of $100 payable to the United States is mandatory and due immediately. Because Underwood 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, Underwood 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.
Furthermore, the standard conditions of supervision (1-13) shall be imposed with the following special conditions:
(1) Underwood will participate in a program approved by the United States Probation Office, which program may include testing to determine whether Underwood 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. Underwood 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 third-party payment.
(2) Underwood 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. Underwood shall inform any other residents that the premises may be subject to search pursuant to this condition.
(3) Underwood shall provide the probation officer with access to any requested financial information.
(4) Underwood shall participate in mental health treatment as needed.
The mandatory drug testing condition is suspended due to imposition of a special condition requiring drug treatment and testing.
Underwood 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 February 8, 2006.
It is so ordered.