Opinion
No. 05 Cr. 744 (RWS).
February 6, 2006
SENTENCING OPINION
Defendant Debra Austin, a/k/a "Debby Bennett," a/k/a "Debra E. Prince," a/k/a "Debbie Hodge," a/k/a "Deborah Johnson," a/k/a "Debra Benet," a/k/a "Debra Bennet," a/k/a "Jackie Bennet," a/k/a "Joann Balker," a/k/a "Marlene Henry," a/k/a "Debra Renaul," a/k/a "Tedra Bradshaw," a/k/a "Debbie Bradshaw," a/k/a "Joanna Barker," a/k/a "Debra M. Donaldson," a/k/a "Debbie Renauld," a/k/a "Debbie Margaret Jones," a/k/a "Jennifer R. Mitchell," a/k/a "Debram Austin," a/k/a "Elizabeth Austin," ("Austin") has pleaded guilty to illegal reentry after deportation subsequent to an aggravated felony conviction in violation of 8 U.S.C. 1326(a) and (b) (2), a Class C Felony. Austin will be sentenced to twenty-four months incarceration and to three years supervised release. Prior Proceedings
Austin was arrested by New York Police Department officers on June 12, 2005, and remained in New York City custody until July 21, 2005, when she was transferred into federal custody for an alleged violation of federal immigration laws. On July 14, 2005, an indictment was filed charging Austin with unlawfully entering the United States after having been deported from the United States subsequent to convictions on February 23, 1996, in New York County Supreme Court, for criminal possession of stolen property in the third degree and on September 29, 1998, in Nassau County Court, New York, for grand larceny in the fourth degree. On September 8, 2005, Austin appeared before this Court and allocuted to the criminal conduct charged in the indictment without the benefit of a plea agreement. Austin is scheduled to be sentenced on February 7, 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
Austin was born on February 26, 1961, in Trinidad and was one of three children. When the defendant was two years old, her mother passed away. Her father is 69 years old now, and he resides in Trinidad. Both of Austin's siblings reside in Brooklyn, New York, and Austin reports that she shares good relationships with both of them.
Austin indicates that following her mother's death, she and her brothers were raised by her grandparents and an aunt (Dorothy Bradshaw). Her father maintained no contact with her, and she saw her father for the first time (as an adult) in 2000. She explains that she came to the United States with her grandparents and aunt in 1969 and was subsequently raised in Brooklyn, New York. Austin reports that her aunt was very strict and was often physically abusive. In 1985, her grandparents returned to Trinidad, where they subsequently passed away. Austin comments that her relationship with her aunt was satisfactory, but that since her incarceration, they have not spoken.
The defendant reports that in 1981 she married Harold Bennett in a ceremony performed in New York, New York. She mentioned that Mr. Bennett was deported in 1985, and in 1991 they obtained a divorce. Austin indicated that she maintains no contact with Mr. Bennett. This marriage resulted in two children, both of whom are now adults living in Brooklyn, New York. Austin describes her relationship with these two children as very strong.
Austin also reports that she has two children as a result of her relationship with Lester Renaud. Both children reside with the Austin's aunt. Austin explains that Mr. Renaud never provided for his children and that she raised them on her own.
Additionally, Austin has two children born to her relationship with Donovan Donaldson. Austin explains that Mr. Donovan was murdered in April 2002 and that the case is unsolved. Both children reside with the defendant's aunt. Austin reports that she had been dating Mr. Donaldson since 1991, and after she was deported in 2001, Mr. Donaldson provided care for their children. She notes that he helped with her other children as well.
Austin's aunt, Mrs. Bradshaw, is raising five of Austin's children, but she reports that she is almost 70 years of age and that it is difficult for her to raise the children. Mrs. Bradshaw said that Austin was a good mother, and she expressed concern over the children not being raised by their mother. She believed that the children would suffer problems in the future if not exposed to their mother. Mrs. Bradshaw stated that Austin does not have any family in Trinidad and lived on the streets when previously deported. She related that Austin returned to the United States in order to see her children.
Mrs. Bradshaw stated that Austin suffered from psychiatric problems, noting that Austin became depressed at times. Austin confirms this, reporting that she has been suffering with depression since she was fifteen years old. At that time, she received six months of treatment at Interboro General Hospital. When she was twenty years old, she underwent treatment again for slightly less than one year. She was first medicated for depression in 1996 while incarcerated. Currently, she is receiving medication for her depression while in custody at the Metropolitan Correction Center (MCC).
Austin was not working immediately prior to her instant arrest and incarceration. She reported that she has no assets and no liabilities.
The Offense Conduct
Austin is a citizen and national of Trinidad and is not, nor has ever been, a citizen of the United States.
On September 29, 1998, Austin convicted in Nassau County Court, New York, for grand larceny in the fourth degree. On January 13, 2000, a warrant of deportation was issued against her.
On February 10, 2000, Austin was deported from the United States to Trinidad. Prior to Austin's deportation, her fingerprints were affixed to the warrant of deportation.
Following this deportation, Austin reentered the United States, and on July 21, 2001, she was deported a second time. She was not prosecuted for illegally reentering the United States, and once she was deported for a second time, her initial deportation order was reinstated.
On June 12, 2005, Austin was arrested by the New York City Police Department ("NYPD") and charged with Petit Larceny and Criminal Possession of Stolen Property. The NYPD subsequently notified the Bureau of Immigration and Customs Enforcement ("ICE") of Austin's arrest. On July 21, 2005, agents with ICE fingerprinted Austin and compared her prints to those on the warrant of deportation. It was determined that the fingerprints matched those of the individual who previously had been deported.
Austin had neither sought nor received permission to reenter the United States following her deportation.
Relevant Statutory Provisions
The maximum term of imprisonment that may be imposed under the sole count against Austin is 20 years. See 8 U.S.C. § 1326(a) and (b)(2). If a term of imprisonment is imposed, the Court may impose a term of supervised release of not more than three years.See 18 U.S.C. § 3583(b)(2).
The defendant is eligible for not less than one nor more than five years probation by statute. See 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.See 18 U.S.C. § 3563(a)(2).
The maximum statutory fine is $250,000. See 18 U.S.C. § 3571(b)(3). A special assessment of $100 is mandatory. See 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 violation of 8 U.S.C. § 1326 is found in § 2L1.2(a), which provides for a base offense level of eight. Pursuant to § 2L1.2(b)(1)(C), there is an eight-level increase because the defendant previously was deported and unlawfully remained in the United States, after a conviction for an aggravated felony. This results in a criminal offense level of sixteen.
Austin has shown recognition of responsibility for her offense. Therefore her offense level is reduced two levels. See § 3E1.1(a). Furthermore, a one-level reduction is warranted, because Austin gave timely notice of her intention to plead guilty. See § 3E1.1(b). The resulting adjusted offense level is thirteen. Criminal History
Austin has twenty-eight criminal convictions dating back to the late 1970's, including the one for the instant offense. Additionally, she has eight pending cases in Pennsylvania, New Jersey and New York. Under the Guidelines, she has fifteen criminal history points, calculated as follows:
1. Two criminal history points, pursuant to U.S.S.G. §§ 4A1.1(b), 4A.2(e)(2), for a March 21, 1996 conviction in Nassau County, New York, for Petit Larceny in the First Degree, covering criminal conduct that occurred on April 3, 1991, for which she was sentenced to one year imprisonment.
2. One criminal history point, pursuant to U.S.S.G. §§ 4A1.1(c), 4A1.2(e)(2), for a September 7, 1994 conviction in Bridgewater, New Jersey, for shoplifting for which she was fined $173.
3. Two criminal history points, pursuant to U.S.S.G. §§ 4A1.1(b), 4A.2(e)(2), for a March 21, 1996 conviction in Nassau County, New York, for Petit Larceny in the First Degree, covering criminal conduct that occurred on December 9, 1994, for which she was sentenced to one year imprisonment.
4. Two criminal history points, pursuant to U.S.S.G. §§ 4A1.1(b), 4A.2(e)(2), for a February 23, 1996 conviction in County Court, Westchester, New York, for Criminal Possession of Stolen Property in the Third Degree, covering criminal conduct that occurred on March 9, 1995, for which she was sentenced to one year imprisonment.
5. Two criminal history points, pursuant to U.S.S.G. §§ 4A1.1(b), 4A.2(e)(2), for a March 14, 1996 conviction in Town Court, Guilderland, New York, for Petit Larceny, covering criminal conduct that occurred on September 22, 1995, for which she was sentenced to ninety days jail.
6. Three criminal history points, pursuant to U.S.S.G. §§ 4A1.1(a), 4A.2(e)(1), for a September 18, 1998 conviction in County Court, Nassau County, New York, for Grand Larceny in the Fourth Degree, covering criminal conduct that occurred on June 13, 1998, for which she was sentenced to eighteen months to three years imprisonment.
7. One criminal history point, pursuant to U.S.S.G. §§ 4A1.1(c), 4A.2(e) (2), for a September 14, 1998 conviction in District Court, Nassau County, New York, for Attempted Petit Larceny, covering criminal conduct that occurred on July 22, 1998, for which she was sentenced to thirty days imprisonment.
8. One criminal history point, pursuant to U.S.S.G. §§ 4A1.1(c), 4A.2(e) (2), for a October 6, 1998 conviction in District Court, Chesterfield, Virginia, for Petit Larceny, covering criminal conduct that occurred on that same day, for which she was fined $250 and $50 in court costs.
9. One criminal history point, pursuant to U.S.S.G. §§ 4A1.1(c), 4A.2(e) (2), for a May 5, 2001 conviction in Criminal Court, New York, New York, for Petit Larceny, covering criminal conduct that occurred on May 4, 2001, for which she received thirty days imprisonment.
10. One criminal history point, pursuant to U.S.S.G. §§ 4A1.1(c), 4A.2(e) (2), for a June 28, 2005 conviction in Criminal Court, Brooklyn, New York, for Petit Larceny, covering conduct that occurred on June 22, 2002, for which she received one year conditional discharge.
11. One criminal history point, pursuant to U.S.S.G. §§ 4A1.1(c), 4A.2(e) (2), for a June 30, 2005 conviction in Criminal Court, New York, New York, for Petit Larceny, covering conduct that occurred on June 12, 2005, for which she received thirty days imprisonment.
These criminal history points total seventeen, but under U.S.S.G. § 4A1.1(c) a maximum of four criminal history points can be assigned under that section.
Given the foregoing discussion, Austin has a total of fifteen criminal history points, which places her in Criminal History Category VI. Sentencing Options
Based on a total offense level of thirteen and a Criminal History Category of VI, the Guidelines range of imprisonment is thirty-three to forty-one months.
The guideline range for a term of supervised release is at least two years but not more than three years. See § 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. See § 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. See § 5D1.1(a).
Because the applicable guideline range is in Zone D of the Sentencing Table, Austin is not eligible for probation pursuant to § 5B1.1, application note #2.
The fine range for the instant offense is from $3000 to $30,000. See § 5E1.2(c) (3).
The Remaining Factors of Section 3553(a)
Having considered the Guidelines calculations, as set forth above, this Court also gives due consideration to the remaining factors identified in 18 U.S.C. § 3553(a). Pursuant to all of the factors, and in particular 18 U.S.C. §§ 3553(a) (5) and (6), imposition of a non-Guidelines sentence is warranted here. Specifically, it is determined that the sentencing disparity created here, taken together with the double-counting of criminal history under the Guidelines for illegal reentry, warrants the imposition of a non-Guidelines sentence.
The Fast Track Disparity
Section 3553(a) (6) instructs the Court to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." § 3553(a) (6). A number of courts, including some courts in this district, have recognized the unwarranted sentencing disparities that result from so-called "fast track" programs for dealing with illegal reentry cases. See United States v. Krukowski, 04 Cr. 1309 (LAK); United States v. Vernal Mark Deans, 03 Cr. 387 (KMW).
As way of background, in response to the increasing number of illegal reentry arrests in certain geographical areas, a number of judicial districts began utilizing fast-track programs to manage charges brought under § 1326 more efficiently. The programs work as follows:
Through charge bargaining or stipulated departures, these programs allow a § 1326 offender who agrees to a quick guilty plea and uncontested removal to receive a reduced sentence . . . In the Southern District of California, for example, defendants subject to 20 year statutory maximums and guideline ranges of 70-87 months were allowed to plead guilty to an offense carrying a two year statutory maximum penalty. See United States v. Banuelos-Rodriguez, 215 F.3d 969 (9th Cir. 2000). In other border districts, defendants received downward departures to induce fast pleas. See [Erin T. Middleton, Fast-Track to Disparity: How Federal Sentencing Policies Along the Southwest Border Are Undermining the Sentencing Guidelines and Violating Equal Protection, 2004 UTAH L.REV. 827] at 829-30. Recently, in the PROTECT Act, Congress made fast-track programs official, see Middleton, at 838-40, and the Commission then enacted a guideline, § 5K3.1, providing for a 4 level departure on the government's motion pursuant to an early disposition program.United States v. Galvez-Barrios, 355 F. Supp. 2d 958, 963 (E.D. Wis. 2005). In other words, in districts utilizing fast-track programs, offenders agree to a quick removal, saving the Government resources, and in return they receive reduced sentences.
Because offenders pleading guilty to illegal reentry in border districts with fast-track programs receive substantially lower sentences than those pleading guilty in other jurisdictions (such as the Southern District of New York), the defendant argues that the imposition of a sentence within the Guidelines range would create an unwarranted sentencing disparity between her sentence and the sentences imposed on defendants in fast-track jurisdictions.
The Government contends that Congress' enactment of the Protect Act in 2003 reflects a legislative determination that any disparities created as a result of the use of fast-track programs are warranted, that the charging decisions made within fast-track programs amount to exercises of prosecutorial discretion, and therefore result in warranted disparities, and that the disparity caused by fast-track programs is warranted in light of the absence of resources necessary to deal with the "explosion of illegal reentry cases in the Southwest without fast-track." Finally, it contends that the imposition of non-guideline sentences in cases like this would create greater disparities in the system.
Confronted with these contentions from the Government, the Honorable Lewis A. Kaplan recently rejected the Government's position that the sentencing disparities that arise from fast-track programs are not unwarranted within the meaning of Section 3553(a) (6). See United States v. Krukowski, 04 Cr. 1309 (LWK). After ordering the Government to submit a comprehensive listing of the DOJ-approved fast-track disposition Guidelines for the 13 participating districts, Judge Kaplan explained:
The question is when Section 3553(a) (6) speaks of "unwarranted sentencing disparities" what are the criteria against which one is to determine whether any given disparity is unwarranted? Inasmuch as the statute speaks of imposing a sentence that considers "the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct," the text of the Sentencing Reform Act strongly suggests that the measure of whether a disparity is warranted depends upon the characteristics of the defendants and their conduct, not overall considerations of law enforcement efficiency or administrative convenience. United States v. Krukowski, 04 Cr. 1309 (LAK), Sent. Tr. at 5. Although Judge Kaplan ultimately declined to impose a non-Guidelines sentence based upon consideration of all of the 3553(a) factors, his determination of the meaning of "unwarranted disparities" is persuasive.
Also in this district, on October 28, 2005, the Honorable Kimba M. Wood imposed a non-Guidelines sentence based upon the unwarranted sentencing disparity in illegal reentry cases. See United States v. Vernal Mark Deans, 03 Cr. 387 (KMW). Judge Wood found that most fast-track illegal reentry jurisdictions on average reduce a sentence by four offense levels, and accordingly rejected the Guidelines range of seventy-seven to ninety-six months and imposed a sentence of fifty-one months.
While fast-track programs may create an efficient solution to an explosion of illegal reentry cases in border districts, they nevertheless result in the type of sentencing disparity cautioned against in section 3553(a)(6). As the Court in Galvez-Barrios, 355 F. Supp. 2d at 963, explained: "Because they operate only in certain districts (typically in southwestern states), an illegal alien stopped in California or Arizona will receive a lighter sentence than an alien convicted of the same offense and with the same record who is found in Wisconsin."
Courts confronted with this issue have also noted that the amount of the reduction one receives in a fast-track sentence is substantial. As Judge Kaplan noted, "it is difficult to imagine a sentencing disparity less warranted than one which depends upon the accident of the judicial district in which the defendant happens to be arrested." United States v. Bonnet-Grullon, 53 F. Supp. 2d 430, 435 (S.D.N.Y. 1999), aff'd, 212 F.3d 692 (2d Cir. 2000). Because the disparity created is of the type envisioned by § 3553(a)(6), under Crosby, it is appropriate for the Court to exercise discretion to minimize the sentencing disparity that fast-track programs create.
Section 3553(a)(5) also instructs this Court to consider policy statements issued by the Sentencing Commission in determining whether a non-guideline sentence should be imposed. The Sentencing Commission itself has expressed serious concern about the unwarranted disparities that result from fast-track programs. As the Commission explained:
The statutory requirement that the Attorney General approve all early disposition programs hopefully will bring about greater uniformity and transparency among those districts that implement authorized programs. Defendants sentenced in districts without authorized early disposition programs, however, can be expected to receive longer sentences than similarly-situated defendants in districts with such programs. This type of geographical disparity appears to be at odds with the overall Sentencing Reform Act goal of reducing unwarranted disparity among similarly-situated offenders.Report to Congress: Downward Departures from the Federal Sentencing Guidelines at 66-67 (emphasis added). In identifying the disparities that result from early disposition programs, like fast-track programs, the Sentencing Commission invoked the specific language of § 3553(a)(6), "unwarranted disparity," and highlighted the type of geographical disparity present here. Accordingly, the policy statement of the Sentencing Commission also militates in favor of imposing a non-Guidelines sentence based on its judgment that geographical disparities, like those resulting from fast-track programs, result in unwarranted disparities in sentencing.
Double-Counting of Criminal History
Austin argues that the advisory Guideline range of 33 to 41 months incarceration is unreasonable because it double counts Austin's criminal history, using her prior convictions to enhance not only her criminal history category but also to raise her offense level by 8.
As one court, considering this very issue, has noted recently, "although it is sound policy to increase a defendant's sentence based on his prior record, it is questionable whether a sentence should be increased twice on that basis." Galvez-Barrios, 355 F. Supp. 2d at 958. Judge Rakoff echoed this sentiment, citing this arbitrary aspect of the Guidelines, in justifying a below-Guidelines sentence for a defendant charged with conduct similar to that of Austin. See United States v. Ramon Ramirez, 04 Cr. 1021 (JSR).
In this case, double-counting is inappropriate. Under the Guidelines, Austin's offense level is increased 8 levels, from 8 to 16, based on the sole fact that she previously had been convicted of an aggravated felony which led to her deportation. However, Austin's numerous prior criminal convictions trigger criminal history points under the Guidelines and place her in the most serious criminal history category, Criminal History Category VI. The result of this double-counting produces a Guideline range that is unreasonable, given the non-violent nature of the instant offense and all of Austin's prior offenses. Without the 8 level enhancement, Austin's advisory Guideline sentencing range would decrease by approximately two years.
Under § 4A1.3 of the Guidelines, a sentencing court can grant an upward or downward departure if a defendant's criminal history category does not adequately represent his criminal conduct.See U.S.S.G. § 4A1.3. In particular, section 4A1.3 instructs that "[t]here may be cases where the court concludes that a defendant's criminal history category significantly over-represents the seriousness of a defendant's criminal history . . ." Id.
While Austin's criminal record is long and extensive, it consists almost entirely of shoplifting offenses. Although she has been convicted twenty-eight times, her placement in Criminal History Category VI overstates the seriousness of her criminal conduct, especially given that the majority of her convictions were misdemeanors.
Furthermore, after Austin was deported to Trinidad, where she had no ties and was homeless, she returned to the United States upon learning that her boyfriend, who was also her children's sole caretaker, had been murdered. Thus, while illegal reentry is a serious offense and warrants considerable punishment, it is important to note that Austin returned to this country unlawfully in an attempt to care for her children who suddenly found themselves without any parents.
Given Austin's characteristics, as well as the nature of her prior and instant offenses, the sentence recommended under the advisory Guidelines is unreasonably harsh. See United States v. Perez, 04 Cr. 376 (RJH) (April 14, 2005) (imposing a non-Guideline sentence in an illegal reentry case because the nature and age of the defendant's prior conviction made a guideline sentence unreasonably harsh).
To discount adequately the 8 level enhancement created by the double-counting of prior criminal conduct, a three level reduction will be imposed. See Galvez-Barrios, 355 F. Supp. 2d at 964 (stating a three level downward departure was reasonable based on defendant's motives to re-enter the country and to offset properly the double-counting of criminal history under the Guidelines). See United States v. Santos, No. 05 Cr. 522 (RWS), (S.D.N.Y. Dec. 12, 2005).
Other § 3553(a) Sentencing Factors
While consideration of 18 U.S.C. §§ 3553(a)(5) and (6) warrant downward departures as discussed above, consideration of 18 U.S.C. § 3553(a)(2) warrants an upward departure of three levels. Under 18 U.S.C. § 3553(a)(2), the Court is to impose a sentence that is "sufficient but not greater than necessary" which simultaneously reflects the seriousness of the offense, promotes respect for the law, provides just punishment, affords adequate deterrence, and protects the public from further crimes of the defendant. See 18 U.S.C. §§ 3553(a)(2)(A)-(C).
In light of Austin's 28 criminal convictions, her lengthy warrant record (from her failure to appear at scheduled court dates), and her eight pending cases, an upward departure is appropriate as she has demonstrated little respect for the law and the sentences imposed thus far have had little deterrent effect. Although the Court recognizes that Austin has suffered from mental illness throughout her adult life, she will receive mental health treatment both while incarcerated (as has already begun) and while on supervised release. See 18 U.S.C. § 3553(a)(2)(D). The Sentence
It is determined that based upon Judge Wood's estimate that the average fast-track sentence is reduced by four-levels, see Vernal Mark Deans, 03 Cr. 387 (KMW), Austin's offense level is decreased from thirteen to nine. Furthermore, based on the three level reduction granted in Galvez-Barrios for the double-counting of criminal history, Austin's offense level is further reduced from nine to six. However, an upward departure of three levels under 18 U.S.C. § 3553(a)(2) is warranted. An offense level of nine and a Criminal History Category of VI results in a Guidelines range of twenty-one to twenty-seven months. The defendant is hereby sentenced to twenty-four months incarceration.
Austin is also hereby sentenced to three years supervised release. Austin shall report to the nearest Probation Office within 72 hours of release from custody, and supervision will be in the district of her residence.
As mandatory conditions of supervised release, Austin 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; (4) refrain from any unlawful use of a controlled substance; (5) submit to one drug testing within fifteen days of placement on supervised release and at least two unscheduled drug tests thereafter, as directed by the probation officer; and (6) cooperate in the collection of DNA as directed by the probation officer.
Austin shall comply with the standard conditions of supervision and shall also comply with the following special condition: she shall obey the immigration laws and comply with the directives of immigration authorities; she will participate in a mental health treatment program as recommended by her probation officer.
Austin shall also pay to the United States a special assessment in the amount of $100, which shall be due immediately. Given Austin's inability to pay a fine, the fine in this case is waived.
It is so ordered.