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United States District Court, Southern District of New York

July 30, 2003


The opinion of the court was delivered by: Robert Sweet, Senior District Judge


Defendant Julio Cesar Baena-Sanchez ("Baena-Sanchez") pled guilty on January 22, 2003 to unlawfully conspiring to violate the narcotics laws of the United States, in violation of 21 U.S.C. § 846. As part and object of the conspiracy, Baena-Sanchez distributed and possessed with the intent to distribute over one kilogram of heroin, in violation of 21 U.S.C. § 841 (a)(1) and 841(b)(1)(A). Baena-Sanchez further pled guilty to attempting to possess, with intent to distribute, approximately two kilograms of heroin, in violation of 21 U.S.C. § 812, 841(a)(1) and 841(b)(1)(A). For the reasons set forth below, Baena-Sanchez will be sentenced to 46 months' imprisonment, followed by a five year term of supervised release. A $200 special assessment fee is mandatory.

The Defendant

Baena-Sanchez was born on April 28, 1973 in Pereira, Colombia. He is the older of two children born to the consensual union of Gonzalo Baena and Consuelo Sanchez. Baena-Sanchez' father is presently 50 years old and living in Pereira, Colombia. His mother is a resident of Colombia, but has been staying with relatives in Jackson Heights, New York. Baena-Sanchez' sister and two maternal half-sisters reside in Cali, Colombia.

Baena-Sanchez lived with both his parents in Pereira until he was eight years old, when his father left home. Baena-Sanchez' father used corporal punishment on the children and was violent and abusive towards the mother. Baena-Sanchez never heard from his father after he left home, although he and his sister made efforts over the years to contact him.

Baena-Sanchez reports having close relationships with his mother and sisters and stated that he became the "man of the house" after his father moved out. The mother worked as a secretary of a furniture company in Cali and was the sole source of financial support for the family. The family's economic status was poor.

In June 2001, Baena-Sanchez illegally entered the United States through Mexico. He was then deported in February 2000. For three mouths prior to his arrest, Baena-Sanchez lived alone in a room he rented in the basement of Jackson Heights, New York. Prior to that, he lived with his aunt in Jamaica, New York. He further stated that he lived in Miami, Florida for three months and in Fort Meyers, Florida for four months in 2001 and 2002.

From prior relationships, Baena-Sanchez has two children — both of whom live with their mothers in Colombia. One child is seven years old, and the other is two. Prior to his incarceration, Baena-Sanchez provided financial support for his children and maintained regular contact with them.

Baena-Sanchez started using marijuana at age 24, and he has used it sporadically since. He began drinking alcohol at age 20 and has on occasion drunk excessively to the point of "passing out." However, he does not consider himself to have a history of problem drinking and stated that, since immigrating to the United States, he has used alcohol on few occasions.

Baena-Sanchez reported no history of mental or emotional illness, but he has been experiencing depression since his incarceration.

Baena-Sanchez did not complete high school and has since attended no educational or vocational programs. At the time of the instant offense, he was unemployed. Baena-Sanchez stated that he has done some off-the-books employment in the United States as a laborer for an unlicensed general contractor and as an auto mechanic. He also worked for two years in Cali, Colombia as a cleaning person and office aid, and for two years as a warehouse worker and messenger.

He has no assets or liabilities.

He has no prior criminal record.

The Offense

Baena-Sanchez participated in a conspiracy to purchase two kilograms of heroin. His role in the conspiracy appears to have been limited to that of a courier, but his criminal conduct involved substantial amounts of narcotics for distribution.

Plea Agreement

Baena-Sanchez's plea agreement stipulates the following:

1) Pursuant to § 2D1.1(a)(3), the base offense level is 34 because the offense involved between 3 and 10 kilograms of heroin. Defendant qualifies for a reduction to 30 under § 3B1.2(b) because he was a minor participant in the criminal activity.
2) If defendant meets the criteria of § 5C1.2, a 2-level decrease in offense level would be warranted pursuant to § 2D1.1(b)(6).
3) If defendant demonstrates acceptance of responsibility, a 2-level reduction will be warranted, pursuant to § 3E1.1 (a). An additional 1-level reduction would further be warranted, pursuant to § 3E1.1(b)(2), because he gave timely notice of his intention to enter a guilty plea.
4) Accordingly, the applicable Guidelines offense level is 23.
5) Based upon the information now available to the Government, the defendant has no criminal history points and a Criminal History Category of II.
5) Based upon the calculations set forth above, Baena-Sanchez' guideline sentencing range is 46 to 57 months' imprisonment.
The Guidelines

The January 25, 2003 edition of the Guidelines Manual has been used in this case.

The counts of conviction are grouped together, pursuant to § 3D1.2(b), inasmuch as Count 2 charges Baena-Sanchez with the attempted substantive offense which is the object of the Conspiracy charged in Count 1.

The guideline for violation of 21 U.S.C. § 846, 841(a)(1) and 841(b)(1)(A) is found in § 2D1.1. According to the Offense Conduct section, Baena-Sanchez' criminal activity involved the attempted distribution and possession with intent to distribute 3 kilograms of heroin. Accordingly, because this amount is at least 3 kilograms, but less than 10 kilograms of heroin, the resulting base offense level is 34, pursuant to § 2D1.1(c)(3) However, because Baena-Sanchez is eligible for a mitigating role adjustment pursuant to § 3B1.2, the base offense level is limited to 30, pursuant to § 2D1.1(a)(3). Baena-Sanchez acted solely as a courier for his co-defendant, who was the purchaser of heroin. Thus, his offense level is decreased by two levels, pursuant to § 3B1.2(b)

Because Baena-Sanchez meets the criteria set forth in § 5C1.2, a two-level reduction is warranted, pursuant to § 2D1.1(b)(6).

Based on acceptance of responsibility, three levels are subtracted, resulting in an adjusted offense level of 23.

Baena-Sanchez has no known criminal conviction and, therefore, a Criminal History Category of I.

Pursuant to 21 U.S.C. § 846 and 841(b)(1)(A), there is a mandatory minimum of 10 years' imprisonment. However, under § 5C1.2, the court shall impose a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence when the defendant does not have more than 1 criminal history point. Based on an offense level of 23 and a criminal history category of I, the guideline range of imprisonment is 46 to 57 months.

A mandatory minimum of five years' supervised release on each count is required, pursuant 21 U.S.C. § 846 and 841(b)(1)(A). The terms of supervised release run concurrently, pursuant to 18 U.S.C. § 3624(e). The guideline range for a term of supervised release is the five years the minimum required by statute, pursuant to § 5D1.2(b).

Baena-Sanchez is not eligible for probation because the instant offense is a Class A felony, pursuant to 18 U.S.C. § 3561 (a)(1). Furthermore, as the applicable guideline range is in Zone D of the Sentencing Table, Baena-Sanchez is not eligible for probation, pursuant § 5B1.1 (a). Additionally, as the instant offense is a Class A felony, pursuant to § 5B1.1(b)(1) and (2), probation is precluded by the statute of conviction.

A special assessment of $200 is mandatory, pursuant to 18 U.S.C. § 3013.

The Sentence

Baena-Sanchez will be sentenced to 46 months' imprisonment on each count, to run concurrently, followed by five years' supervised release on each count, to run concurrently. Baena-Sanchez is to report to the nearest Probation Office within 72 hours of his release from custody, and supervision shall be in the district of residence. As mandatory conditions of supervised release, Baena-Sanchez shall (1) abide by the standard terms of supervised release (1-13); (2) not commit another federal, state, or local crime; (3) not illegally possess a controlled substance; (4) not possess a firearm or destructive devise; and (5) comply with the directives of the Bureau of Citizenship and Immigration Services and the Immigration Laws.

In addition, the following special conditions will be imposed. Baena-Sanchez will participate in a program approved by the United States Probation Office for substance abuse, which may include testing to determine whether the offender has reverted to the use of drugs or alcohol. Baena-Sanchez 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.

Baena-Sanchez shall further participate in a mental health program approved by the U.S. Probation Office. He shall continue to take any prescribed medications unless otherwise instructed by the health care provider. He shall contribute the costs of services rendered not covered by third-party payment, if he has the ability to pay. Available psychological and psychiatric evaluations and reports shall be released to the health care provider.

A special assessment fee of $200 is due immediately.

This sentence is subject to modification at the sentencing hearing now set for September 11, 2003 at 9:30 a.m.

It is so ordered.


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