Opinion
07 Cr. 05(RWS).
May 15, 2007
SENTENCING OPINION
On January 5, 2007, defendant Shaquaina Warren ("Warren") pled guilty to one count of unlawfully allowing the place of her residence to be used for the manufacturing, storage, distributing, and usage of cocaine, in violation of 21 U.S.C. § 856. For the reasons set forth below, Warren will be sentenced to a term of imprisonment of six months, to be followed by a three-year term of supervised release. Warren will also be required to pay a mandatory special assessment of $100.
Prior Proceedings
Warren was arrested on March 15, 2006. An indictment was filed in the Southern District of New York on January 5, 2007, charging that in March 2006, in the Southern District of New York, Warren unlawfully allowed the place of her residence in the Bronx, New York, to be used for the manufacturing, storage, distributing, and use of cocaine in violation of 21 U.S.C. § 856. On January 5, 2007, Warren appeared before the Honorable James C. Francis, IV, of this district and pled guilty to the charged criminal conduct in accordance with a plea agreement entered into with the Government. Warren's guilty plea was accepted by this Court on February 7, 2007, and she is scheduled to be sentenced on May 17, 2007.
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 111.
The Defendant
The following description draws on the Presentence Investigation Report prepared by the Probation Office of the United State District Court for the Southern District of New York, on April 18, 2007 (the "PSI").
Shaquaina LeShawn Warren was born in the Bronx, New York in 1979. Her parents never lived together and their relationship ended when Warren was about two years old. Warren was raised by her mother, but had frequent contact with her father.
Warren's mother was addiction to crack cocaine, which interfered with her parenting skills and caused her to lose their home when Warren was a teenager. At that time, Warren went to live with her paternal grandmother and eventually moved into a shelter at the age of eighteen or nineteen. Warren remained in the shelter system for approximately three years, at which point she moved into her own apartment in the Bronx, New York, where she has resided for about five or six years.
Warren has never been married and she does not have any children.
Warren graduated from a vocational high school in Brooklyn, New York in 1997. According to Warren, she has been employed as a seasonal mail carrier with the U.S. Postal Service ("USPS") in Irvington, New York, since December 2006, but this assignment was scheduled to be completed in February 2007. Prior to her employment with the USPS, Warren was unemployed for about fourteen months, during which time she relied on her parents for financial support.
According to Warren, from October 2002 to October 2005, she was employed in various cashier positions in Manhattan and the Bronx, except for the period from February 2003 to November 2003. Warren also claims to have been employed in different cashier positions in Manhattan and Brooklyn during 1999. From 2000 to 2001, Warren claims to have been employed as a manager at a McDonald's in Brooklyn, New York.
The Offense Conduct
The following description of the offense conduct draws on the PSI. The specific facts of the underlying conduct are adopted as set forth in that report.
In August 2005, Warren pled guilty to obstruction of the mails in violation of 18 U.S.C. § 1701, for which she was sentenced to a three-year term of probation on March 7, 2006.
On March 15, 2006, a routine home visit was conducted by U.S. Probation Officers at Warren's place of residence in the Bronx, New York. Warren allowed the officers to enter the residence, at which time one of the officers discovered plastic bags that appeared to be used to package drugs. The bags were out in the open on a table in the living room. Also in plain view was a bag of what appeared to be crack cocaine. When asked, Warren indicated that the items did not belong to her and that there was no other contraband in the apartment of which the officers should have been made aware. Warren was placed under arrest and seated in the living room as the rest of the search of the residence was conducted with her permission.
The officers found a bag in a closet that contained two glass bottles of what appeared to be crack cocaine. In addition, in plain view, the officers discovered a box of bullets on a closet shelf. When questioned by the officers, Warren indicated that there were no firearms in the apartment. As the search continued, however, the officers found a large bag containing men's jeans and a .45 caliber semi-automatic firearm covered by a t-shirt. The officers also found a firearm magazine fully loaded with bullets.
The Relevant Statutory Provisions
Pursuant to 21 U.S.C. § 856, the maximum term of imprisonment is a term of twenty-years. In addition, a term of not more than three years' supervised release may be imposed if a sentence of imprisonment is imposed, pursuant to 18 U.S.C. § 3583(b)(2).
Warren is eligible for not less than one nor more than five years' probation by statute, pursuant to 18 U.S.C. § 3561(c)(1). Because the offense is a felony, pursuant to 18 U.S.C. 3563(a)(2), one of the following must be imposed as a condition of probation unless extraordinary circumstances exist: a fine, restitution, or community service.
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 maximum fine is $250,000, pursuant to 18 U.S.C. § 3571. A special assessment in the amount of $100 is mandatory, pursuant to 18 U.S.C. § 3013.
The Guidelines
The November 1, 2006, edition of the United States Sentencing Commission Guidelines Manual has been used in this case for calculation purposes, pursuant to U.S.S.G. § 1Bl.ll(a).
The Guideline for violation of 21 U.S.C. § 856 is found in U.S.S.G. § 2D1.8. Pursuant to U.S.S.G. § 2D1.8(a)(2), the base offense level is four levels less than the offense level from U.S.S.G. § 2D1.1 applicable to the underlying controlled substance offense. Because the offense involved less than 25 grams of cocaine, the applicable offense level pursuant to U.S.S.G. § 2Dl.l(a)(3) and (c)(14) is 12. Therefore, the base offense level under U.S.S.G. § 2D1.8(a)(2) is 8.
Based on her plea allocution, Warren has shown recognition of responsibility for the offense. Pursuant to U.S.S.G. § 3El.l(a), the offense is therefore reduced two levels.
Warren's resulting adjusted offense level is therefore 6.
Warren has two past criminal convictions, for which she receives a total of two criminal history points, pursuant to U.S.S.G. § 4Al.l(c). In addition, because Warren was on probation at the time that the instant offense was committed, pursuant to U.S.S.G. § 4A1.1(d), Warren receives two additional criminal history points. Thus, Warren has a total of four criminal history points. According to the Sentencing Table, Warren is therefore in a Criminal History Category of III.
Based on a total offense level of 6 and a Criminal History Category of III, the Guidelines range for imprisonment is two to eight months. Pursuant to U.S.S.G. § 5C1.1(c), 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; 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 Guidelines range for a term of supervised release is at least two years but not more than three years, pursuant to U.S.S.G. § 5D1.2(a)(2). If a term of imprisonment of one year or less is imposed, a term of supervised release is not required but is instead optional, pursuant to U.S.S.G. § 5Dl.l(b).
Because the applicable Guidelines range is in Zone B of the Sentencing Table, Warren is eligible for probation provided that the Court imposes a condition that substitutes intermittent confinement, community confinement, or home detention for at least two months, pursuant to U.S.S.G. § 5Bl.l(a)(2). If the Court imposes probation, pursuant to U.S.S.G. § 5B1.2(a)(1), the term must be at least one year but not more than five years because the offense level for the instant offense is 6.
The Guidelines fine range for the instant offense is from $500 to $5,000, pursuant to U.S.S.G. § 5E1.2(c)(3)-(4). Subject to the defendant's ability to pay, in imposing a fine pursuant to U.S.S.G. § 5E1.2(d)(7), the Court shall consider the expected costs to the Government of any imprisonment, probation, or supervised release. 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 Booker, 543 U.S. 220, and the Second Circuit's decision in Crosby, 397 F.3d 103. In particular, § 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 § 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).
Considering the history and characteristics of the defendant pursuant to § 3553(a)(1), the Court takes note of the difficulties Warren experienced during her teenage years and early adulthood as a result of her mother's drug addiction. These conditions likely contributed to Warren's participation in the instant offense, as well as her past criminal conduct.
Considering the need for the sentence to reflect the seriousness of the offense and to provide adequate general and specific deterrence, pursuant to § 3553(a)(2)(A) and (B), however, the sentence is appropriate. Warren engaged in the instant offense after having been on probation for a prior offense for only about a week. Therefore, although a sentence of probation is available under the Guidelines, it would appear that a sentence of imprisonment is warranted in light of Warren's inability to abide by the conditions of her prior sentence of probation for even a few days.
Accordingly, having considered the factors set forth in § 3553(a), it is determined that a Guidelines sentence of imprisonment is warranted in the instant case.
The Sentence
For the instant offense, Warren is hereby sentenced to six months' imprisonment, followed by a three-year term of supervised release.
Warren is viewed as a good candidate for voluntary surrender pursuant to 18 U.S.C. § 3143(a)(2). She has kept all of her court appearances and has been in compliance with all of the terms and conditions of her pretrial release. Also, Warren is not viewed as a flight risk or a danger to the community. Warren is therefore directed to report to the nearest Probation Office no later than June 18, 2007.
Warren is further directed to report to the nearest Probation Office within seventy-two hours of release from custody. It is recommended that she be supervised by the district of her residence.
As mandatory conditions of her supervised release, Warren 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 the Court's determination that Warren poses a low risk of future substance abuse.
The standard conditions of supervision (1-13) shall be imposed, along with the following special conditions:
(1) Warren shall provide the probation officer with access to any requested financial information.
(2) Warren shall submit her person, residence, place of business, vehicle, or any other premises under her 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. Warren shall inform any other residents that the premises may be subject to search pursuant to this condition.
In consideration of the factors set forth in 18 U.S.C. § 3572(a), the fine in this case shall be waived. A special assessment of $100, payable to the United States, is mandatory and shall be due immediately.
The terms of this sentence are subject to modification at the sentencing hearing set for May 17, 2007.
It is so ordered.