Opinion
04 Cr. 424-1 (RWS).
April 25, 2006
SENTENCING OPINION
On February 3, 2005, defendant David Delarosa ("Delarosa") appeared before the Honorable Andrew J. Peck of this District and pleaded guilty to conspiracy in violation of 21 U.S.C. § 846 to distribute and possess with intent to distribute one kilogram of heroin, in violation of 21 U.S.C. §§ 812, 841(a) (1) and 841(b) (1) (A). Delarosa's plea was accepted on March 21, 2005. Delarosa will be sentenced to 188 months imprisonment 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 Delarosa 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 Delarosa was issued on the same day. Delarosa was arrested on May 11, 2004, and he has remained in custody since that time. Delarosa entered a guilty plea on February 3, 2005, which this Court accepted on March 21, 2005, and Delarosa currently is scheduled for sentencing on April 25, 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") established by the United States Sentencing Commission (the "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 with respect to Delarosa's personal and family history. The Offense Conduct
The indictment filed in this action charges that from at least 1999 through May 2004, Delarosa, along with his nineteen co-defendants and others, was a member 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.
Delarosa was charged as the leader of the Organization. The Organization was run by Delarosa's father, uncles, and older brother until their arrests in April 2000. Delarosa admits that he assumed a leadership role in the Organization in late 2001 or early 2002, when he was seventeen years old. (Delarosa Aff. ¶¶ 8-10.) This admission was confirmed by testimony at the trial of co-defendants Oscar Caesar and Raymond Castillo. (Caesar Trial Tr. at 132, 377.) Delarosa carried decision-making authority and acted as a manager to the conspiracy's other members. Delarosa admits that, in addition to his leadership role, he was primarily responsible for obtaining the heroin from a supplier. (Delarosa Aff. ¶ 12.)
The government contends that Delarosa's involvement in the conspiracy should be dated to January 13, 1999, when he and his cousin, William Delarosa, were arrested for selling narcotics to an undercover Officer in the vicinity of Daly Avenue. However, the government has not provided specific evidence to establish that the conduct leading to the 1999 arrest was part of the instant conspiracy. Accordingly, the Court relies on Delarosa's admissions and the testimony at the trial of Caesar and Castillo in finding that Delarosa's involvement in the conspiracy began no later than December 2001.
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 a kilogram per month, although the actual amount could vary from month to month. With respect to Delarosa specifically, the Court finds that he should be held accountable for conspiring to distribute between ten and thirty kilograms of heroin during his involvement with the conspiracy between December 2001 and May 11, 2004, when he was arrested.
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." (Caesar Trial Tr. at 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." (Caesar Trial Tr. at 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." (Caesar Trial Tr. at 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." (Caesar Trial Tr. at 388.) However, 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." (Caesar Trial Tr. at 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. (Caesar Trial Tr. at 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.
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. 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).
Delarosa is not eligible for probation because the instant offense is one for which probation has been expressly precluded by statute. 18 U.S.C. § 3561(a) (2), 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.] 09, 18 U.S.C. § 3013.
Delarosa 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.'" 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 Guidelines
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.
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) (3), which specifies that the base offense level is set in accordance with the Drug Quantity Table under U.S.S.G. § 2D1.1(c). At his allocution, Delarosa indicated that he knowingly conspired with others to possess, with intent to distribute, heroin. The Court has found that the amount for which Delarosa should be held accountable is between ten and thirty kilograms of heroin. In light of this latter amount, and pursuant to the Drug Quantity Table, the base offense level is 36. U.S.S.G. § 2D1.1(c)(2).
Because Delarosa was an organizer and leader of the conspiracy, and the criminal activity involved five or more participants, a four-level increase is warranted pursuant to U.S.S.G. § 3B1.1(a).
Based on Delarosa'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).
Disputed Adjustments
The government contends that Delarosa's offense level should be increased by four levels, on the basis of adjustments for the use of a minor to commit a crime, U.S.S.G. § 3B1.4, and possession of a firearm, U.S.S.G. § 2D1.1(b). For the reasons that follow, the Court will apply the two-level increase for possession of a firearm, but will not apply the two-level increase for use of a minor.
Section 2D1.1(b) of the Guidelines directs that a two-level increase in the offense level be applied if a firearm was possessed in the commission of the offense. The commentary to that section states that two levels should be added for possession of a firearm "unless it is clearly improbable that the weapon was connected with the offense." U.S.S.G. § 2D1.1 cmt. 3. The Second Circuit elaborated on this Guideline in United States v. Smith, 215 F.3d 237 (2d Cir. 2000), stating "our case law indicates that once the government has established that a weapon's presence was reasonably foreseeable to the defendant during conduct (i.e., the storage and cutting of drugs) relevant to the offense (i.e., distribution of drugs) at issue, the enhancement will apply, unless the defendant demonstrates that it is clearly improbable that the weapon was connected with the drug offense." Id. at 241.
Delarosa's co-defendant Emenson Peters testified at the trial of co-defendants Caesar and Castillo that Delarosa had given him a gun "for the protection of the block." (Caesar Trial Tr. at 212.) It is true that Peters apparently had not informed the government about this gun prior to trial, and that his testimony about what he had told the government was somewhat self-contradictory. However, his testimony was consistent regarding his receipt of the gun from Delarosa for the purpose of protecting the block.
As the Court has previously stated, it is important to note that because this testimony was given at the trial of two of Delarosa's co-defendants, he did not have the opportunity to cross-examine or confront this witness's testimony. See U.S. v. Melendez, No. 04 CR 424-03 (RWS), 2005 WL 1423268 at *5 n. 3 (S.D.N.Y. June 15, 2005) (finding no grounds to apply two-level increase for possession of firearm). Nevertheless, in his submissions to the Court, Delarosa has not contradicted Peters' testimony on this point. It is also undisputed that, whatever the source, Peters did carry a gun during conduct relevant to the offense, (Caesar Trial Tr. at 219.) and Delarosa has not claimed ignorance of this fact. Because Delarosa has not made any showing that it is clearly improbable that the weapon was connected with the drug offense, the two-level increase for possession of a firearm will apply.
This is in contrast to Melendez, in which the defendant argued in submissions to the Court that his possession of a firearm on one occasion was unrelated to conduct relevant to the offense.
Section 3B1.4 of the Guidelines specifies a two-level increase in the offense level if the defendant "used or attempted to use a person less than eighteen years of age to commit the offense. . . ." U.S.S.G. § 3B1.4. Because nearly all of Delarosa's co-defendants participated in the conspiracy as minors, the government argues for the application of a corresponding two-level increase in the offense level. Delarosa argues that the adjustment should not be applied because (1) Congress did not empower the Sentencing Commission to make the adjustment applicable to defendants who are themselves under twenty-one years of age, and (2) because Delarosa was apparently the youngest member of the conspiracy, and many of his co-defendants were already involved in dealing drugs before Delarosa's involvement in the instant offense.
In 1994, Congress directed the Sentencing Commission to "promulgate guidelines or amend existing guidelines to provide that a defendant 21 years of age or older who has been convicted of an offense shall receive an appropriate sentence enhancement if the defendant involved a minor in the commission of the offense." Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, § 140008, 108 Stat. 2033. In promulgating the new guideline, however, the Sentencing Commission eliminated the age requirement, making the enhancement applicable to defendants of all ages. U.S.S.G. § 3B1.4.
The Supreme Court has held that although the Sentencing Commission "enjoys significant discretion in formulating guidelines," Mistretta v. United States, 488 U.S. 361, 377 (1989), it still "must bow to the specific directives of Congress. In determining whether [the Guideline] accurately reflects Congress' intent, we turn, as we must, to the statutory language." United States v. LaBonte, 520 U.S. 751, 757 (1997).
The Second Circuit has not yet addressed the question whether the adjustment for use of a minor should apply to cases in which the defendant is less than twenty-one years of age. Among circuits that have addressed the issue, the Sixth Circuit has held that the enhancement may not be applied to defendants under the age of twenty-one because the Sentencing Commission "failed to comport with a clear Congressional directive," United States v. Butler, 207 F.3d 839, 849 (6th Cir. 2000) (Jones, J., concurring), while the Fourth, Seventh, and Tenth Circuits have concluded that the Guideline's elimination of the age requirement was a permissible interpretation of Congress' intent. United States v. Ramirez, 376 F.3d 785 (8th Cir. 2004), United States v. Kravchuk, 335 F.3d 1147 (10th Cir. 2003), United States v. Murphy, 254 F.3d 511 (4th Cir. 2001), United States v. Ramsey, 237 F.3d 853 (7th Cir. 2001).
Although the Sixth Circuit's reasoning is compelling, it is not necessary for the Court to choose sides in this circuit split. All of the aforementioned cases involved defendants who, though under the age of twenty-one, were over the age of eighteen, and, even more significantly, were older than the minors whose involvement provided the basis for the enhancements. They stand in stark contrast to the facts of the instant case, involving a defendant who was a minor himself until December 7, 2002, and was apparently younger than all of the other minors involved in the offense conduct.
As the Seventh Circuit detailed extensively, the legislative history behind the Violent Crime Control and Law Enforcement Act demonstrates conclusively that Congress never intended the enhancement to apply to a defendant who was younger than the minors he recruited. See Ramsey, 237 F.3d at 857-58. Because this case does not present the concern "that the existence of an age differential allows an older, adult party to influence a minor to engage in wrongful or dangerous behavior," Butler, 207 F.3d at 851, the application of Section 3B1.4 of the Guidelines would impermissibly conflict with a clear Congressional directive, and Delarosa will therefore not receive any increase to his offense level pursuant to that section. Remaining Calculations
The adjusted offense level resulting from the foregoing calculations and discussion is 39.
Based on the offense level of 39 and a Criminal History Category of II, the guideline range for imprisonment is 292 to 365 months.
The authorized term for supervised release under the guidelines is five years, pursuant to U.S.S.G. § 5D1.2(c).
Delarosa 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), cmt. 2.
The fine range for the instant offense under the guidelines is from $25,000 to $4 million, pursuant to U.S.S.G. §§ 5E1.2(c) (3) (A) and 5E1.2(c) (4).
Subject to Delarosa'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, 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 (2d 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 section 3553(a) (2) (B). In addition, section 3553(a) (6) highlights "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."
Delarosa, like all of his co-defendants, has faced a number of significant obstacles throughout his young life. His family moved to Daly Avenue when Delarosa was four years old. His father, who at one point had been employed as a mechanic, became addicted to cocaine when Delarosa was ten, and began selling the drug shortly thereafter. Within a short time, Delarosa's father was one of the leaders of a narcotics distribution ring on Daly Avenue. Delarosa's father not only used cocaine openly in front of his children, but utilized them in the distribution of drugs.
Because Delarosa's mother suffered from heart disease and was frequently hospitalized, Delarosa was frequently unsupervised, and began using drugs himself at an early age. He smoked marijuana by age fourteen, and by fifteen was smoking every day. At sixteen he progressed to using ecstacy on a regular basis. After his father and brother were arrested and incarcerated on drug distribution charges, Delarosa's drug use increased significantly. He dropped out of school completely before completing the eighth grade.
Delarosa's first arrest came in 1998, at the age of thirteen, while he was delivering packages of heroin for his father on his bicycle. After being sentenced to eighteen months probation, Delarosa spent the next several years in and out of prison on a subsequent arrest (on a charge for which he was eventually acquitted) and a probation violation. By the time he was released from prison in 2001, Delarosa was without real parental supervision, a high school education, any vocational training, or meaningful employment prospects.
After performing psychological diagnostic tests on two separate occasions, Dr. N.G. Berrill concluded that in addition to his substance abuse problems, Delarosa suffers from developmental learning problems as well as major depression and generalized anxiety disorder. Test scores in reading and spelling indicated a second-grade level, while Delarosa scored at a fourth-grade level in mathematics. Delarosa was placed in special education classes in school and was held back in both third and sixth grades. His IQ was measured at the eighth percentile. Given his family background, "cognitive limitations [and] learning problems," Dr. Berrill concluded that "it is almost expected/predicted that he would follow in his father's footsteps and wind up selling drugs."
Having spent nearly a year in prison following his arrest for the instant offense, Delarosa is still only twenty-one years old. He is now married, with a four-year-old daughter, and has submitted that his family gives him a purpose in life that he has never had before. The anticipated sentence, while significantly less than the sentence indicated by the Guidelines, adequately accounts for the "history and characteristics of the defendant" and "the nature and circumstances of the offense" as indicated in 18 U.S.C. § 3553(a)(1), and will achieve both the "just punishment" and "adequate deterrence" sought under section 3553(a)(2).
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, 372 F. Supp. 2d 108 (D.Mass. 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, 408 F.3d 966 (7th Cir. 2005); Simon v. U.S., 361 F. Supp. 2d 35, 49 (E.D.N.Y. 2005).
It should be noted that in an unpublished summary order that was entered after Booker and Crosby were announced, the Second Circuit reaffirmed the construction of section 3553(a) (6) announced in United States v. Joyner, 924 F.2d 454, 460 (2d Cir. 1991) (stating that "[t]o reduce the sentence by a departure because the judge believes that the applicable range punishes the defendant too severely compared to a co-defendant creates a new and entirely unwarranted disparity between the defendant's sentence and that of all similarly situated defendants throughout the country"). See United States v. Toohey, 2005 WL 1220361, at *2 (2d Cir. May 23, 2005). The Toohey court stated:
[Even after Booker,] Joyner's construction of the role the Guidelines play in [the] § 3553(a)(6) consideration remains the same. See United States v. Booker, 125 S.Ct. at 761, 767 (emphasizing the continued importance of the Guidelines to avoiding unwarranted sentencing disparities). Thus, a sentencing court does not reasonably satisfy its statutory obligation under § 3553(a) (6) when it only compares discrete cases or defendants. Rather, to identify a reasonable sentence, § 3553(a) (6) expects a court to consider whether a defendant is favored or disfavored by a particular sentence "compared to all those similarly situated defendants." United States v. Joyner, 924 F.2d at 461.
Before Delarosa became the leader of a heroin distribution ring on Daly Avenue, his father, Fernando, and brother, Noel, controlled drug dealing on the block. Both were charged with conspiracy to distribute a controlled substance, and they were sentenced to terms of eighty-seven months and time served, respectively. While Noel cooperated with the government, and was therefore deserving of a lesser sentence, the Court takes note of the sentence imposed on Delarosa's father, who not only was convicted of the same conduct to which Delarosa pleaded guilty, but who was responsible for initiating Delarosa into the distribution of narcotics at the age of thirteen. Sentencing Delarosa to a Guidelines sentence of nearly twenty-four years in prison, a term more than three times longer than that received by his father for substantially similar conduct, would introduce a grave and unwarranted disparity.
The Court also takes note of the sentences given to Delarosa's co-defendants, which have ranged from time served for lower-level defendants to 188 months for Delarosa's cousin William Delarosa. Many of these co-defendants shared Delarosa's background of family problems, limited education, and drug use. William Delarosa, who shared a family connection to the Daly Avenue drug trade, as well as a record of previous arrests, participated with the Defendant in planning and managing the instant conspiracy. A Guidelines sentence more than half again as long as that received by William Delarosa would inflict an unwarranted disparity, 18 U.S.C. § 3553(a)(6), and certainly would be "greater than necessary" to comply with the purposes of section 3553(a)(2).
The Sentence
For the instant offense, Delarosa is sentenced to 188 months imprisonment and five years supervised release. As Delarosa has been detained without bail since his arrest, he is not a candidate for voluntary surrender pursuant to 18 U.S.C. § 3143(a)(2).
A special assessment fee of $100 payable to the United States is mandatory and due immediately. Because Delarosa 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, Delarosa 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.
Delarosa 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. Delarosa 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.
Delarosa 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 April 25, 2006.
It is so ordered.