Opinion
No. 98 Cr. 927 (RWS).
June 10, 2002
SENTENCING OPINION
On May 8, 2000, Elimeleck Foster ("Foster") pled guilty to one felony count of conspiracy to distribute heroin, in violation of 21 U.S.C. § 846.
The Offense Conduct
The investigation of this case was conducted jointly by the Drug Enforcement Administration ("DEA"), the Bronx Narcotics Unit and the Bronx Gangs Investigative Squad of the New York City Police Department ("NYPD"). During the course of the investigation, law enforcement officers interviewed two cooperating witnesses ("CW-1" and "CW-2") who were previously arrested for distributing, and participating in a conspiracy to distribute, over one kilogram of heroin. CW-1 and CW-2 have pled guilty to narcotics offenses and agreed to cooperate with the government.
Based on interviews of CW-1, investigators learned that beginning in June 1996 through February 1997, CW-1 sold heroin to Celestino Carasquillo ("Carasquillo"), a co-defendant in this case, in the amounts of between 200 and 700 bundles every other day. Each 100 bundles contained approximately 1000 glassines or about 50 grams of heroin.
CW-1 told investigators that Carasquillo purchased heroin for resale and that Carasquillo was working with Anthony Ramirez, a/k/a/ "Fat Tony" and Rene Ramirez, two co-defendants in this case, as part of an organization distributing heroin in and around Bryant Avenue in the Hunts Point Section of the Bronx (the "Bryant Avenue Organization").
In March 1997, the NYPD arrested Carasquillo for unlawful possession of firearms and he temporarily ceased purchasing heroin for the Bryant Avenue Organization. At that time, Pablo Colon, a/k/a "Pablito" ("Colon"), a co-defendant in this case, replaced Carasquillo as the primary purchaser of heroin from CW-1 for the Bryant Avenue Organization. CW-2 told investigators that he worked for CW-1 from about August 1997 through his arrest in October 1997 and that he also delivered heroin for CW-1 to Colon on three occasions.
Based on discussions with other law enforcement officers, including an undercover officer ("UC-1"), and review of certain reports and records, investigators learned that on May 21, 1998, UC-1 met with Anthony Ramirez, Rene Ramirez, Colon and Edward Morales, a co-defendant in this case, at a hair cutting salon located at 526 Tinton Avenue, Bronx, New York, for purposes of purchasing heroin.
Anthony Ramirez, Rene Ramirez, Colon and Foster arrived at the salon at approximately 4:10 p.m. on May 21, 1998, in a light blue Ford Explorer, license plate No. T401UD, driven by Foster. Anthony Ramirez, Rene Ramirez and Colon exited the vehicle and entered 526 Tinton Avenue while Foster remained in the vehicle. Rene Ramirez introduced himself, Anthony Ramirez and Colon to UC-1. Anthony Ramirez then directed Colon to give UC-1 the heroin. Colon removed a brown paper bag from his back pocket and handed it to UC-1. Inside the brown paper bag was a taped plastic bag containing numerous glassines of white powder bearing the stamp "Back to Life." UC-1 asked how many bundles were in the bag, and Colon responded 12 and UC-1 gave Colon $1,200, consisting of 12 $100 bills. During this time, Rene Ramirez was keeping watch at the window. UC-1 placed the bag of heroin in his pants and stated that he would put the heroin out on the street to see if his people liked it. Colon informed UC-1 that if he wanted more heroin he should page Colon and enter the amount requested and either Anthony Ramirez, Rene Ramirez or Colon would meet him within twenty minutes with the heroin. Anthony Ramirez, Rene Ramirez and Colon left the scene in the blue Ford Explorer with Foster driving. UC-1 recorded the transaction on audio tape.
Based on discussions with other law enforcement officers, including UC-1, and review of certain records and reports, investigators learned that on May 28, 1998, UC-1 met with Anthony Ramirez, Colon and Orrett Ewen ("Ewen"), a co-defendant in this action, at 526 Tinton Avenue, Bronx, New York for the purpose of purchasing heroin. Additionally, on June 11, 1998, UC-1 met with Anthony Ramirez, Colon and Edward Morales, a co-defendant in this action, in the parking lot of a Toys 'R' Us store at Bruckner Boulevard and White Plains road, Bronx, New York, for purposes of purchasing heroin.
Foster participated in the conspiracy mainly as a "pitcher" who sold heroin packets directly to the Bryant Avenue Organization's customers intermittently during the period of approximately June 1996 through July 22, 1998. Foster would sell heroin for two or three days weekly for a period of a few months, cease selling for a period of time, and then would re-enter the conspiracy. He exercised no managerial role in the conspiracy. During Foster's participation in the conspiracy, at least ten kilograms but less than thirty kilograms of heroin were sold. Foster has stipulated to this amount in his plea agreement.
Based on the foregoing, a criminal complaint was filed on July 21, 1998.
Rene Ramirez, Anthony Ramirez, Colon and Carasquillo were arrested on July 22, 1998. Foster was arrested at 890 Bryant Avenue, Bronx, New York on July 23, 1998. Morales was arrested on August 3, 1998. Morales was arrested on August 3, 1998. Ewen made an appearance in court on August 26, 1998.
Adjustment for Obstruction of Justice
There is no information to suggest that Foster impeded or obstructed justice at the time of the arrest, or during the investigation or prosecution of the offense.
Adjustment for Acceptance of Responsibility
At the presentence interview, Foster stated that he worked for the Ramirez brothers selling heron from the Hunt's Point section of the Bronx, New York. He stated that he worked for the Ramirez brothers as a "pitcher," selling heroin directly to customers and did so "on and off" between 1997 and 1998. Based on this and his guilty plea, Foster has accepted responsibility for his actions.
The Guidelines Offense Level
Under the November 2001 United States Sentencing Commission Guidelines Manual, the guideline for violation of 21 U.S.C. § 846 is found in § 2D1.1. According to the Offense Conduct section, during Foster's participation in the drug conspiracy, at least ten, but less then thirty kilograms of heroin were sold. The offense level specified in the Drug Quantity Table under § 2D1.1(c)(2) sets a base offense level of 36 for this act.
Foster meets the criteria set forth in § 5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases) and as such, the offense level is reduced pursuant to § 2D1.1(b)(6) by two points to 34.
Section 3B1.2(b) indicates that if the defendant played a minor role in a conspiracy, the offense level is reduced by two levels. Because there is evidence that Foster played a minor role as a "pitcher" the offense is decreased by two levels to 32.
Due to Foster's timely notification of his intention to plead guilty and since the offense level is 16 or greater, Foster qualifies for a 3-level reduction pursuant to § 3E1.1(a) and (b). The offense is reduced three levels to 29.
Adjusted Offense Level
Foster's adjusted offense level is 29 under the Guidelines.
Criminal History Category
Foster was arrested on February 3, 1998 after an undercover officer approached a female and engaged her in a drug related conversation and then handed her a large amount of cash. The female walked over to Foster, who then handed her packets of heroin, after she gave him the cash which had been given her by the undercover police officer. Foster was sentenced on March 19, 1999, and released from custody on April 9, 1999. He served approximately 8 months' imprisonment for this conviction. The conviction is part of the instance offense. Accordingly, pursuant to § 4A1.2(a)-(1) and Application Notes 1 and 3, this conviction is not assigned any criminal history points.
Available information indicates that Foster was represented by counsel in all matters resulting in conviction.
The above conviction is not counted towards criminal history points. Therefore, Foster has zero criminal history points and a Criminal History Category of I.
Applicable Guidelines Range
The statute under which Foster was convicted provides for a minimum sentence of ten years' imprisonment and a maximum term of life pursuant to 21 U.S.C. § 841(b)(1)(A) and 846. Pursuant to the provisions of 18 U.S.C. § 3553(f), Foster appears to meet the criteria set for imposition of a sentence in accordance with the applicable guidelines, without regard to any statutory minimum sentence.
The Guidelines range for an offender with a base offense level of 29 and a Criminal History Category of 1 is 87 to 108 months. Pursuant to § 5K2.0, Foster should be credited with 8 months served in state custody which will not be credited to the federal sentence under 18 U.S.C. § 3585(b).
The Sentence
In light of the foregoing, Foster shall be sentenced to 79 months in prison, to be followed by five years of supervised release. Foster will also pay a mandatory special assessment of $100, pursuant to 18 U.S.C. § 3013.
The following conditions of supervised release are mandatory: Foster shall not (1) commit another federal, state or local crime; (2) illegally possess a controlled substance; or (3) 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.
Foster will be subjected to the standard conditions of supervision (1-13). In addition, Foster will participate in a program approved by the United Stats Probation Office for substance abuse, which program may include testing to determine whether Foster has reverted to the use of drugs or alcohol. Foster will be required to contribute to the costs of services rendered (co-payment) in an amount to be determined by the probation officer, based on ability to pay or availability of third-party payment. Foster is to report to the nearest Probation Office within 72 hours of release from custody and is to be supervised by the district of residence. He is to pay the United States a special assessment of $100, due immediately.