Opinion
04 Cr. 1148-4 (RWS).
February 5, 2007
AMENDED SENTENCING OPINION
On October 28, 2005, Defendant John Aggrey-Fynn ("Aggrey-Fynn") was found guilty after a jury trial of one count of conspiracy to distribute and possess with intent to distribute heroin. For the reasons set forth below, Aggrey-Fynn will be sentenced to seventy months' imprisonment, to be followed by a three-year term of supervised release. Aggrey-Fynn also will be required to pay a special assessment of $100.
Prior Proceedings
Aggrey-Fynn was arrested on October 5, 2004 and released on $200,000 bail on November 4, 2004. A superseding indictment was filed in the Southern District of New York on March 22, 2005, charging in part that from about July 2004 through about August 20, 2004, Aggrey-Fynn and others (1) conspired in violation of 21 U.S.C. § 963 to import into the United States one kilogram and more of heroin, in violation of 21 U.S.C. §§ 952, 960(a)(1), and 960(b)(1)(A) ("Count One"), and (2) conspired in violation of 21 U.S.C. § 846 to distribute and possess with intent to distribute one kilogram and more of heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A) ("Count Two").
Trial against Aggrey-Fynn and his co-defendant Caroline Quarshie began on October 25, 2005. Aggrey-Fynn was convicted of Count Two only and remanded into custody on October 28, 2005. His motion for a new trial was denied by opinion dated February 16, 2006.
The Court issued a sentencing opinion on November 22, 2006 ("the November 22 Opinion"). In light of arguments raised in subsequent sentencing memoranda on behalf of the defendant and the Government, the November 22 Opinion is vacated, and Aggrey-Fynn will be sentenced as set forth below.
The Sentencing Framework
In accordance with the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (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 Court adopts the facts set forth in the Probation Department's Presentence Investigation Report ("PSR") with respect to Aggrey-Fynn's personal and family history.
The Offense Conduct
The indictment filed in this action charges that from about July 20 04 through about August 20, 2004, Aggrey-Fynn, along with his codefendants Akosua Animpong ("Animpong"), Edward Boakye, Ebenezer Owusu ("Owusu"), and others, conspired to import heroin into the United States from Ghana and to distribute it within this country. The scheme involved concealing heroin in compartments sewn into traditional African shirts, which were transported in the luggage of individuals traveling from Ghana to the United States. After receiving the shirts, the conspirators retrieved the heroin by unstitching the shirts. The heroin was then distributed to customers in various locations.
Evidence introduced at trial demonstrated that on July 18, 2004, Aggrey-Fynn was responsible for picking up a suitcase containing imported shirts filled with heroin from a woman named "Nana" at a motel in the Bronx. He then delivered the suitcase to Animpong at her apartment, also in the Bronx, and carried a sum of money back to Nana at the motel. An intercepted call between Animpong and "Ope," a co-conspirator who supplied the heroin from Ghana, indicated that the amount of heroin transported by Aggrey-Fynn was between three and ten kilograms. In a search of Animpong's apartment on August 16, 2004, agents of the Drug Enforcement Agency found what appeared to be three pieces of traditional African garments with the seams ripped open. Agents also found cutting agents, as well as an undetermined amount of U.S. currency in excess of $5000, and Western Union documents reflecting money transfers to Colombia and Ghana. Aggrey-Fynn was arrested at his home in New Jersey on October 5, 2004.
The Relevant Statutory Provisions
The mandatory minimum term of imprisonment for Count Two is ten years; the maximum term of imprisonment is a term of life, pursuant to 21 U.S.C. §§ 963, 841(b)(1)(A), and 846. However, because the Government has agreed that Aggrey-Fynn qualifies for safety-valve relief pursuant to 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, the Court shall impose a sentence pursuant to the Guidelines without regard to the statutory minimum sentence.
Because Aggrey-Fynn qualifies for safety-valve relief pursuant to 18 U.S.C. § 3553(f), he is not subject to any statutory minimum term of supervised release. Nevertheless, the Court may impose a term of supervised release of not more than five years pursuant to 18 U.S.C. § 3583(b)(1).
Aggrey-Fynn 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)(2), 21 U.S.C. § 963, and 21 U.S.C. § 841(b)(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 maximum fine for Count Two is $4 million, pursuant to 18 U.S.C. § 3571.
Pursuant to 21 U.S.C. § 862(a)(1)(A), upon a first conviction for distribution of a controlled substance, a defendant may be declared ineligible for any or all Federal benefits for up to five years as determined by the Court.
A special assessment in the amount of $100 is mandatory. 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 section 1B1.11(a).
The Guideline for violations of 21 U.S.C. § 846 is found in section 2D1.1. Aggrey-Fynn is being held responsible for the trafficking of between three and ten kilograms of heroin. As specified in the Drug Quantity Table under section 2D1.1(c)(3), the base offense level is 34.
Because the Government has agreed that the defendant appears to meet the criteria set forth in subdivisions (1) through (5) of section 5C1.2, a two-point reduction in the offense level is warranted. U.S.S.G. § 2D1.1(b)(9). The resulting offense level is 32. Disputed Adjustments
The defendant has requested a further reduction in the offense level pursuant to sections 2D1.1(a)(3) and 3B1.2, on the grounds that he was a minimal or minor participant in the criminal conspiracy for which he was convicted. In light of all the evidence introduced at trial, and Aggrey-Fynn's statements in subsequent proffer sessions, the offense level will be reduced to reflect his minor role in the conspiracy.
Section 3B1.2 directs that a defendant's offense level should be reduced where he is "substantially less culpable than the average participant." U.S.S.G. § 3B1.2, cmt. 3. A defendant has the burden of proving by a preponderance of the evidence that he is entitled to a role adjustment under section 3B1.2. United States v. Yu, 285 F.3d 192, 200 (2d Cir. 2002); United States v. Castano, 234 F.3d 111, 113 (2d Cir. 2000); United States v. Colon, 220 F.3d 48, 51 (2d Cir. 2000). As the Second Circuit has explained, a minor-role reduction "will not be available simply because the defendant played a lesser role than his co-conspirators; to be eligible for a reduction, the defendant's conduct must be `minor' . . . as compared to the average participant in such a crime." United States v. Carpenter, 252 F.3d 230, 235 (2d Cir. 2001) (quoting United States v. Rahman, 189 F.3d 88, 159 (2d Cir. 1999) (per curiam), cert. denied, 528 U.S. 1094 (2000)). In this case, therefore, the issue is whether Aggrey-Fynn played a minimal or minor role "in relation to a typical conspiracy to distribute" between three and ten kilograms of heroin. United States v. Fernandez, 312 F. Supp. 2d 522, 525 (S.D.N.Y. 2004).
The analysis of the defendant's role in criminal activity is "highly fact-specific and depends on the nature of the defendant's relationship to the other participants, the importance of the defendant's actions to the success of the venture, and the defendant's awareness of the nature and scope of the criminal enterprise." Carpenter, 252 F.3d at 234 (quotingUnited States v. Shonubi, 998 F.2d 84, 90 (2d Cir. 1993)).
Although the Government has argued that Aggrey-Fynn was an indispensable link in the charged conspiracy, the bulk of the evidence indicates that he was "essentially fungible." Fernandez, 312 F. Supp. 2d at 525. The defendant's role in the transaction was limited to transporting the heroin a relatively short distance between two points in the Bronx. He exercised no discretion in choosing the time or place of pickup or delivery, and played no role in determining the amount of drugs to be transported or the price to be paid. In its summation at trial, the Government itself noted that Animpong objected to Aggrey-Fynn's involvement in transporting the heroin to her apartment as "stupidness" because it was unnecessary and added an extra step to the operation. (Trial Tr. at 416.) The evidence suggests that Aggrey-Fynn was given a small, non-critical role in the conspiracy as a favor, so that he could receive a share of the profits.
The cases cited by the Government in opposition to a mitigating role adjustment confirm the importance of a fact-specific inquiry into a defendant's involvement, and do not in themselves argue against an adjustment in this case, as they involved defendants whose involvement was important to the success of the conspiracy.See, e.g., United States v. Imtiaz, 81 F.3d 262, 265 (2d Cir. 1996) (per curiam) (upholding denial of minor role adjustment to courier who also acted as broker for two-kilogram heroin transaction); United States v. Garcia, 920 F.2d 153, 154-55 (2d Cir. 1990) (upholding denial of minor role adjustment to courier where district court concluded that defendant was essential to the transaction). In contrast, courts in this District have repeatedly determined that reductions were appropriate where the defendant was "essentially fungible." Fernandez, 312 F. Supp. 2d at 525; see also United States v. Ruiz, 246 F. Supp. 2d 263, 272 (S.D.N.Y. 2002) ("Virtually anyone could have been inserted . . . without threatening the success of the enterprise."); United States v. Sanchez, 925 F. Supp. 1004, 1013 (S.D.N.Y. 1996) (characterizing defendant as "replaceable").
The defendant has argued that he was largely unaware of the extent of the conspiracy and the identity of the other participants. This contention is partly supported by the evidence. For instance, Owusu, who acted as a courier of drugs or money as part of the conspiracy on fifteen to thirty occasions in mid-2004 (Id. at 42), testified at trial that he had never met Aggrey-Fynn (Id. at 40). However, the defendant's own statements in his safety-valve proffer sessions establish that he knew both Ope, the Ghanaian source of the heroin, and Animpong, a wholesale distributor. Furthermore, while the defendant may have been ignorant of the overall scope of the conspiracy, the jury found that he was fully aware of the criminal conduct for which he was personally responsible and for which he now faces sentencing.
Considering all of the factors discussed above, it is appropriate to award a two-level minor-role adjustment. Aggrey-Fynn's awareness of the scope and structure of the conspiracy, at least as it related to his direct participation, indicates that he was "not among the least culpable as compared to typical participants in such a conspiracy," Fernandez, 312 F. Supp. 2d at 525, so as to warrant a four-level minimal-role reduction. Nevertheless, the facts of this case demonstrate that the defendant played a role that was "limited in importance, duration, skill and authority — in a word, minor." Ruiz, 246 F. Supp. 2d at 272.
Remaining Calculations
In light of the two-level reduction under section 3B1.2, the defendant's base offense level is reduced by an additional three levels, pursuant to section 2D1.1(a)(3). The resulting adjusted offense level is 27.
The defendant has no known criminal convictions. Therefore, Aggrey-Fynn has no criminal history points and a Criminal History Category of I.
Based on a total offense level of 27 and a Criminal History Category of I, the Guidelines range for imprisonment is seventy to eighty-seven months.
Pursuant to section 5D1.1(a), supervised release shall be ordered if a sentence of imprisonment of more than one year is imposed. Because the defendant is eligible for safety-valve relief pursuant to section 5C1.2, he is not subject to any statutory minimum term of supervised release. U.S.S.G. § 5D1.2 cmt. 2. The Guidelines range for a term of supervised release for Count Two is at least three but not more than five years, pursuant to section 5D1.2(a)(1).
The defendant is not eligible for probation because the instant offense is a Class A felony, pursuant to section 5B1.1(b)(1).
The fine range for the instant offense is from $12,500 to $4,000,000. § 5E1.2(c)(3)(A), (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. § 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.
Pursuant to section 5F1.6, the Court may deny eligibility for certain Federal benefits of any individual convicted of distribution or possession of a controlled substance.
The Remaining Factors of 18 U.S.C. § 3553(a)
Having engaged in the Guidelines 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. Pursuant to all of the factors, it is hereby determined that a Guidelines sentence is warranted. The Sentence
The defendant has no prior convictions, and has never been incarcerated. He also has demonstrated his capability and willingness to be a productive member of society by maintaining gainful employment and pursuing higher education. Accordingly, the Court concludes that a sentence at the lower end of the Guidelines range is sufficient to serve the purposes of punishment, deterrence, and rehabilitation. For the instant offense, Aggrey-Fynn will be sentenced to seventy months' imprisonment, to be followed by a three-year term of supervised release.
Since Aggrey-Fynn has been detained without bail since his conviction, he is not a candidate for voluntary surrender. 18 U.S.C. § 3143(a)(2). Aggrey-Fynn is directed to report to the nearest Probation Office within seventy-two hours of release from custody. It is recommended that the defendant be supervised by the district of residence.
As mandatory conditions of his supervised release, Aggrey-Fynn 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 based on the Court's determination that the defendant poses a low risk of future substance abuse.
Furthermore, the standard conditions of supervision (1-13) shall be imposed with the additional special condition that Aggrey-Fynn 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 a reasonable manner. Failure to submit to a search may be grounds for revocation. The defendant shall inform any other residents that the premises may be subject to search pursuant to this condition.
In consideration of all the factors set forth in 18 U.S.C. § 3572(a), it does not appear that the defendant is able to pay a fine, so 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 scheduled for February 6, 2007.
It is so ordered.