Opinion
No. 05 Cr. 1232 (RWS).
May 22, 2006
SENTENCING OPINION
On January 18, 2006, Defendant Geronimo Santos-Nuez ("Santos-Nuez") appeared before the Honorable Theodore H. Katz of this District and pleaded guilty to one count of illegal re-entry of a deported alien. For the reasons set forth below, Santos-Nuez will be sentenced to twenty-seven months of imprisonment, to be followed by a three-year term of supervised release. Santos-Nuez also will be required to pay a special assessment of $100.
Prior Proceedings
Santos-Nuez was arrested on November 14, 2005, and has been held in custody since that day. An indictment was filed in the Southern District of New York on November 22, 2005, charging that in November 2005, in this District and elsewhere, Santos-Nuez, being an alien who had previously been deported from the United States subsequent to a conviction for an aggravated felony, did enter and was found in the United States without the consent of the Attorney General, in violation of 8 U.S.C. § 1326(a) and (b) (2). On November 22, 2005, Santos-Nuez appeared before the Honorable Theodore H. Katz and pleaded guilty to his criminal conduct as charged in the indictment. His plea was accepted on March 14, 2006. Defendant's sentencing is scheduled for May 22, 2006.
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 Santos-Nuez's personal and family history. The Offense Conduct
Santos-Nuez has two prior drug convictions. He first was arrested by officers of the New York Police Department on July 15, 1999, for sale of a controlled substance. Following this arrest, Santos-Nuez signed a cooperation agreement with state law enforcement officers and was released from custody. Over several months he provided law enforcement officers with information that led to the arrest and conviction of a number of Dominican drug dealers. On October 11, 2001, Santos-Nuez was arrested on federal charges for additional drug-related conduct. On July 9, 2002, he was sentenced to thirty-seven months' imprisonment by the District Court for the District of New Jersey for conspiracy to distribute cocaine. The federal arrest invalidated his cooperation agreement with state law enforcement, and on June 6, 2003, he was sentenced to seventy-eight months' to life imprisonment by the New York County Supreme Court, which ordered that the state sentence run concurrently with the federal sentence.
On June 18, 2004, Santos-Nuez was released from the custody of the Bureau of Prisons. He was then taken into New York State custody, and paroled on February 10, 2005. Following parole, Santos-Nuez was taken into the custody of the Bureau of Immigration and Customs Enforcement ("BICE"). On May 18, 2005, Santos-Nuez was deported to the Dominican Republic. His maximum expiration date for parole supervision was life.
In November 2005, BICE agents learned that Santos-Nuez had returned to the United States. On November 14, 2005, Santos-Nuez was arrested in New York City. He has admitted that at no time did he receive permission from the Attorney General of the United States to apply for readmission to the United States following his deportation on May 18, 2005.
The Relevant Statutory Provisions
The maximum term of imprisonment is twenty years, pursuant to 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, pursuant to 18 U.S.C. § 3583 (b) (2).
Santos-Nuez is eligible for not less than one nor more than five years' probation, pursuant to 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, pursuant to 18 U.S.C. 3563 (a) (2).
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. 18 U.S.C. § 3013.
The Guidelines
The November 1, 2005 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 a violation of 8 U.S.C. § 1326(b) (2) is found in section 2L1.2. Pursuant to section 2L1.2(a), the base offense level is 8. Because Santos-Nuez was previously deported after a criminal conviction for a drug trafficking offense for which the sentence exceeded thirteen months, a sixteen-level increase is applied. U.S.S.G. § 2L1.2(b) (1) (A). Based on his plea allocution, Santos-Nuez has shown recognition of responsibility for the offense. Pursuant to section 3E1.1(a), the offense is reduced two levels. Further, because timely notification of his intention to plead guilty has allowed the Government to allocate its resources more efficiently, and because the offense level is 16 or greater, the offense level is reduced one additional level. § 3E1.1(b). The resulting adjusted offense level is 21.
Santos-Nuez has two prior drug-related convictions, which result in six criminal history points. Because the instant offense was committed while the Defendant was on parole, two points are added. § 4A1.1(d). The instant offense also was committed less than two years after the Defendant's release from custody on February 10, 2005. Pursuant to section 4A1.1(e), one point is added, as two points were added under section 4A1.1(d). The total of nine criminal history points establishes a Criminal History Category of IV.
Based on a total offense level of 21 and a Criminal History Category of IV, the Guidelines range for imprisonment is fifty-seven to seventy-one months.
The Guidelines range for a term of supervised release is at least two but not more than three years, pursuant to section 5D1.2(a)(2). If a sentence of imprisonment of one year or less is imposed, a term of supervised release is not required, pursuant to section 5D1.1(b). Supervised release is required when a term of imprisonment of more than one year is imposed. § 5D1.1(a).
Because the applicable Guidelines range is in Zone D of the Sentencing Table, Santos-Nuez is not eligible for probation. § 5B1.1, cmt., n. 2.
The Guidelines fine range for the instant offense is from $7500 to $75,000. § 5E1.2(c)(3). 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 $1,933.80 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 Downward Departure Under Section 5K2.11 Is Not Warranted
Section 5K2.11 of the Guidelines permits the Court to downwardly depart from the applicable sentencing range in two circumstances: (1) where the defendant "commit[s] a crime to avoid a perceived greater harm . . . provided that the circumstances significantly diminish society's interest in punishing the conduct," and (2) where the "conduct may not cause or threaten the harm or evil sought to be prevented by the law proscribing the offense at issue." U.S.S.G. § 5K2.11. Santos-Nuez has moved for departure on the first ground, arguing that his cooperation with law enforcement has led to serious threats on his life, and that his illegal re-entry into the United States was designed to avoid the greater harm of his potential murder in the Dominican Republic by associates of the criminals convicted based on his cooperation.
Santos-Nuez is not entitled to a downward departure because the circumstances of his re-entry do not "diminish society's interest in punishing the conduct." Santos-Nuez argues that the relevant societal interest is encouraging cooperation by those charged with criminal offenses. He contends that the imposition of a sentence within the range calculated above would inhibit future potential cooperators who might fear reprisals. As the Government notes, however, the actual societal interest here is in prohibiting aliens who engage in criminal activity from re-entering the country. Santos-Nuez was deported after he breached his cooperation agreement by committing an additional drug-related crime following his release from custody on state charges. The immigration judge at his deportation hearing rejected Santos-Nuez's argument that he should be granted asylum because of the threats on his life. As the Second Circuit noted in United States v. Leiva-Deras, "it is unclear whether a departure based on the ground of personal safety is permissible as a matter of law." 359 F.3d 183, 191 (2d Cir. 2004). Such a departure within the Guidelines is not appropriate here, where Defendant's arguments were considered and rejected at his deportation hearing. 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. Pursuant to all of the factors, and in particular 18 U.S.C. § 3553(a) (1), (2), (5) and (6), imposition of a non-Guidelines sentence is warranted.
The Fast Track Disparity
Section 3553(a) (6) instructs courts to consider "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). A number of courts, including 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, e.g., United States v. Miranda-Garcia, No. 6:05-Cr-202-Orl-31DAB, 2006 WL 1208013, at *2 (M.D. Fla. May 4, 2006); United States v. Ramirez-Ramirez, 365 F. Supp. 2d 728, 731-32 (E.D. Va. 2005);United States v. Galvez-Barrios, 335 F. Supp. 2d 958, 963 (E.D. Wis. 2005); 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). This Court previously has imposed non-Guidelines sentences in recognition of the fast-track disparity. See, e.g., United States v. Austin, No. 05 Cr. 744 (RWS), 2006 WL 305462 (S.D.N.Y. Feb. 6, 2006); United States v. Santos, 406 F. Supp. 2d 320 (S.D.N.Y. 2005).
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 section 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.Galvez-Barrios, 355 F. Supp. 2d at 963. 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), Santos-Nuez argues that the imposition of a sentence within the Guidelines range would create an unwarranted sentencing disparity between his sentence and the sentences imposed on defendants in fast-track jurisdictions.
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 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." 355 F. Supp. 2d at 963. As the Honorable Lewis A. 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." Bonnet-Grullon, 53 F.Supp.2d at 435. Because the disparity created is of the type envisioned by section 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) instructs courts 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.
U.S. Sentencing Comm'n, Report to Congress: Downward Departures from the Federal Sentencing Guidelines 66-67 (2003). This acknowledgment by the Sentencing Commission that the existence of fast-track programs creates unwarranted disparities in sentencing also militates in favor of imposing a non-Guidelines sentence.
Double-Counting of Criminal History
Santos-Nuez also argues that the advisory Guideline range of fity-seven to seventy-one months' incarceration is unreasonable because it double counts his criminal history, using his prior convictions not only to enhance his criminal history category but also to increase his offense level threefold. As one court considering this very issue has noted, "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. The Honorable Jed S. Rakoff cited this arbitrary aspect of the Guidelines in justifying a below-Guidelines sentence for a defendant charged with conduct similar to that of Santos-Nuez.See United States v. Ramon Ramirez, 04 Cr. 1021 (JSR). This Court previously has imposed non-Guidelines sentences to discount the unreasonably harsh effects of double-counting in illegal re-entry cases. Austin, 2006 WL 305462 at *8-*9; Santos, 406 F. Supp. 2d at 327-328.
In this case, double-counting is inappropriate. Nowhere but in the illegal re-entry Guidelines is a defendant's offense level increased threefold based solely on a prior conviction. Here, the Defendant's two convictions for drug offenses result in an increase of sixteen offense levels. In any criminal history category, such an adjustment increases the sentencing range by at least five years. In the case of Santos-Nuez, his two convictions also form the sole basis for all nine of his criminal history points, resulting in a criminal history category of IV. The result of this double-counting produces a Guidelines range that is unreasonable, given the non-violent nature of the instant offense, and the fact that Santos-Nuez has not been charged with any additional crimes since his return to the United States.
The Sentence
In determining the non-Guidelines sentence to be imposed in this case, it is appropriate to consider how other courts have approached the fast-track disparity and the double-counting issue. 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. This Court previously has utilized the equivalent of a four-level reduction in the offense level in determining the length of non-Guidelines sentences. Santos, 406 F. Supp. 2d at 329; Linval, 2005 WL 3215155, at *7.
The court in Galvez-Barrios applied a three-level departure to offset properly the double-counting of criminal history in illegal re-entry cases. 355 F.Supp.2d at 964. This Court has applied the equivalent of a three-level adjustment in two recent cases involving double-counting. Austin, 2006 WL 305462, at *9;Santos, 406 F. Supp. 2d at 329.
Accordingly, after accounting for the effects of the fast-track disparity and double-counting, Santos-Nuez is more appropriately sentenced at the equivalent of an offense level of 14. Under the Guidelines, an offense level of 14 and a Criminal History Category of IV result in a range of twenty-seven to thirty-three months.
In imposing the sentence, the Court considers the Defendant's past cooperation with law enforcement, his motive for illegal re-entry, and the fact that he will face deportation proceedings following his release from custody. Santos-Nuez is hereby sentenced to twenty-seven months of imprisonment, followed by a three-year term of supervised release. The Court notes that Santos-Nuez likely faces a state sentence for violation of parole, and therefore recommends that New York be designated as the place of service for the instant sentence, and that the federal and state sentences run concurrently.
As mandatory conditions of his supervised release, Santos-Nuez 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) cooperate in the collection of DNA as directed by the probation officer; and (5) refrain from any unlawful use of a controlled substance. Santos-Nuez shall submit to one drug test within fifteen days of placement on supervised release and at least two unscheduled drug tests thereafter, as directed by the probation officer.
The standard conditions of supervision (1-13) shall be imposed, along with the special condition that Santos-Nuez shall obey the immigration laws and comply with the directives of immigration authorities. It is recommended that Santos-Nuez be supervised by the district of his residence.
In consideration of all the factors set forth in 18 U.S.C. § 3572(a), it does not appear that Santos-Nuez has the ability 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 set for May 22, 2006.
It is so ordered.