United States District Court, Southern District of New York
April 24, 2003
UNITED STATES OF AMERICA, AGAINST ROBERTO BOU, DEFENDANT.
The opinion of the court was delivered by: Robert W. Sweet, United States District Judge.
On April 10, 2000, Roberto Bou ("Bou") pled guilty to two counts of conspiracy to distribute in violation of 21 U.S.C. § 846, one count of possession of a firearm in relation to drug trafficking offenses in violation of 18 U.S.C. § 924 (c), and one count of dealing in firearms in violation of 18 U.S.C. § 922 (a)(1).
The Offense Conduct
In approximately 1990, Bou began selling small amounts of cocaine out of his apartment, located at 1750 East 172nd Street, apartment 1R, Bronx, New York. After Bou began receiving larger amounts of cocaine in 1992, he turned to Jeffrey Flores ("Flores"), whom he knew to have a reputation for being able to traffic in large amounts of cocaine. Beginning in 1993, Bou and Flores sold cocaine to each other about once a week, switching roles from supplier to customer depending on who had the better price from prospective suppliers. Flores had more than 100 customers who regularly came to Bou's apartment to engage in cocaine deals.
From 1993 to 1995, Bou's apartment was the main center of operations for cocaine trafficking for Bou and Flores. They kept cocaine, money and guns in two secret compartments Bou had in the apartment; one under a window sill and the other under the floor of his bedroom, which he operated with a remote control. A .9mm, a .10mm and .45-caliber semi-automatic firearms were kept in the stashes. In the apartment, Bou and Flores counted money from cocaine deals, broke down kilograms of cocaine into smaller quantities, cooked crack, paged customers and serviced customers.
In order to handle his expanding cocaine distribution business, Flores employed Hector Jimenez ("Jimenez") and Irving Perez ("Perez") as workers in 1995. Jimenez was trusted by Flores and negotiated the sale of cocaine on his behalf. Perez also negotiated cocaine deals on behalf of Flores. Jimenez, Perez and Flores met with customers on 172nd Street, either inside or outside a barber shop and car service there, to negotiate cocaine deals. The actual drug deals never took place on the street, rather after the negotiations, they took the customers to the apartment to make the exchange of drugs for money.
In 1995, after borrowing money from several sources, including Flores, Bou opened a social club dubbed the Back Door Club, at 2152 Westchester Avenue, Bronx, New York. The club did well initially, but business began to founder in 1996. At that time, Flores asked Bou to allow him to use the club to receive cocaine shipments, offering Bou $3,000 monthly to do so. Bou agreed and sometime in 1996, Bou, Jimenez, Flores, "Negrito," and a Colombian national met at the Back Door Club and unloaded 100 kilograms of cocaine. Flores kept 20 of the kilograms of cocaine for his own cocaine distribution organization. Thereafter, between 1996 and 1997, Flores received five or six more shipments of cocaine at the Back Door Club, with each shipment averaging 100 to 150 kilograms of cocaine. Flores continued to pay Bou $3,000 in cash or cocaine for the use of the club.
In 1992, Mark Lippold, who was employed at S.B. Cantor, a Wall Street brokerage firm, met Dennis Del Toro ("Del Toro") and helped Del Toro get a job there. During 1993 and 1994, while they were both employed at S.B. Cantor, Del Toro and Lippold regularly traveled to 172nd Street in the Bronx for the purpose of obtaining cocaine from Bou to distribute to customers. During the period 1993 to 1994, Lippold and Del Toro regularly supplied customers with the cocaine they obtained from Bou. The amounts that they obtained from Bou varied from a few ounces to several hundred grams to kilogram quantities of cocaine.
On October 27, 1999, Bou was arrested for his involvement in the instant offense. Subsequently, the government learned that Bou was responsible for the distribution of more than 150 kilograms of cocaine, more than 500 pounds of marijuana, more than 200 grams of heroin and more than 1 kilogram of crack. Additionally, they learned that he carried and possessed a .9mm Berretta, a .9mm Glock and a shotgun during his participation in the narcotic-distribution conspiracies. Further, Bou was involved in the illegal purchase and sale of more than 100 firearms that include .380 caliber, .9mm, .45 caliber and Tech 9 semiautomatics and .357 revolvers. The government also learned that Bou obtained cloned cell phones that he utilized in the execution of his narcotics trafficking and also obtained stolen credit cards that he used to purchase merchandise.
The 1999 United States Sentencing Commission Guidelines Manual has been used in this case in accordance with § 1B1.11(b)(1). Counts I and II are grouped together pursuant to § 3D1.2 (d) as the offense level is determined on the basis of the total amount of narcotics. There is no guideline calculation for Count III, as § 2K2.4 provides that if a defendant has been convicted of 18 U.S.C. § 924 (c), then the term of imprisonment is that required by statute. Count IV is treated as a separate count group.
Counts I and II
The guideline for a violation of 21 U.S.C. § 846 is found in § 2D1.1. Because Bou's criminal activity involved more than 150 kilograms of cocaine, more than 500 pounds of marijuana, more than 200 grams of heroin and more than a kilogram of crack,*fn1 the offense level specified in the Drug Quantity table under § 2d1.1(c)(1) sets a base offense level of 38.
The adjusted offense level for Counts I and II is 38.
The guideline for a violation of 18 U.S.C. § 922 (a)(1) is found in § 2K2.1, which provides for a base offense level of 20 pursuant to § 2K2.1(a)(4)(A).
Since the offense involved more than 100 firearms, the offense level is increased by six levels to 26 pursuant to § 2K2.1(b)(1)(f).
The adjusted offense level for Count IV is 26.
According to the multiple offense adjustment, the combined adjusted offense level is 38.
Due to Bou's timely notification of his intention to plead guilty and his acceptance of responsibility, and since the offense level is 16 or greater, he qualifies for a 3-level reduction pursuant to § 3E1.1 (a) and (b). The offense is reduced three levels to 35.
Total Offense Level
Bou's total offense level is 35 under the Guidelines.
Criminal History Category
The defendant has no known criminal convictions. Therefore, he has zero criminal history points and a Criminal History Category of I.
There is a pending charge from an arrest on June 7, 1995, when Bou was charged with use of a paging device, possession of a controlled dangerous substance and manufacture and distribution of a controlled dangerous substance after he was stopped for a traffic infraction and discovered to be in possession of seven grams of cocaine. On May 6, 1997, Bou agreed to enter a pretrial intervention program for three years and pay a $75 fine. The pretrial intervention program is a postponement of court proceedings. Upon complying with all the conditions of probation, the charges are subsequently dismissed. The pretrial intervention program does not require an admission of guilt or the defendant to enter a plea of guilty.
On October 19, 1995, Bou was also charged with assault with intent to cause physical injury. No disposition has been reported.
Applicable Guidelines Range
The statutes under which Bou was convicted provide for a minimum sentence of ten years' imprisonment under Counts I and II pursuant to 18 U.S.C. § 846, a mandatory term of five years' imprisonment under Count III pursuant to 18 U.S.C. § 924 (c), and a maximum sentence of five years' imprisonment under Count IV pursuant to 18 U.S.C. § 922 (a)(1). The Guidelines range for an offender with a base offense level of 35 and a Criminal History Category of I is 168 to 210 months' imprisonment to be followed by a consecutive term of 60 months' imprisonment.
A § 5K1.1 letter is expected from the government and any such letter shall be taken into consideration at sentencing.
In light of the foregoing, Bou shall be sentenced to 168 months' imprisonment on Counts I and II, 60 months' imprisonment to run consecutively to the sentence imposed on Counts I and II for Count III, and 60 months' imprisonment to run concurrently on Count IV. Bou's imprisonment shall be followed by five years' supervised release on Counts I, II and III and three years' supervised release on Count IV, all to run concurrently. Bou will also pay a mandatory special assessment of $400.
The following conditions of supervised release are mandatory: Bou 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.
Bou will be subjected to the standard conditions of supervision (1-13). In addition, he shall submit his person, residence, office or vehicle to a search, conducted by the probation officer at a reasonable time and in a reasonable manner, based upon reasonable suspicion of contraband or evidence of a violation of a condition of release; failure to submit to a search may be grounds for revocation. Bou shall warn other residents that the premises may be subject to searches pursuant to this condition. Bou will also participate in a program approved by the United States Probation Office for substance abuse, which program may include testing to determine whether the defendant has reverted to the use of drugs or alcohol. The defendant 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. Bou 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.
This sentence is subject to further hearing on April 29, 2003.
It is so ordered.