United States District Court, Southern District of New York
September 11, 2003
UNITED STATES OF AMERICA, -AGAINST- VICTOR ARVELO, DEFENDANT
The opinion of the court was delivered by: Robert Sweet, Senior District Judge
Defendant Victor Arvelo ("Arvelo") pled guilty on April 25, 2003 to submitting an application for a United States passport containing false information and documents, including a false place of birth. This is a violation of 18 U.S.C. § 1542. For the reasons set forth below, Arvelo will be sentenced to 12 months' imprisonment, followed by three years of supervised release. A $100 special assessment fee is mandatory.
Arvelo was born in the Dominican Republic on October 19, 1959, according to his birth certificate. He was one of six children born to the marital union of Victor Manuel Arvelo and Maria Christina Reynoso. Arvelo's father is approximately 70 years of age, and his whereabouts are unknown. Arvelo stated that he was six years old when he last had contact with his father. Arvelo's [ Page 2]
mother's age is unknown, and she resides in the Dominican Republic. Arvelo reported that he has not seen his mother in 20 years.
Arvelo was abused as a child. His father abandoned the family when he was young, and his mother had a bad temper and mistreated the children. Arvelo resembled his father, making him a special target of his mother's outbursts. Arvelo has scars on his body from his mother's physical abuse, and he also has trouble hearing out of his left ear as a result of abuse.
Arvelo left his mother's home when he was 12 years of age. First, he went to his grandmother's home, and then he went to the "market," where friends provided him with assistance and he sold produce. Eventually, he became involved in performing body work on vehicles and resided in an autobody shop for the rest of his childhood.
When Arvelo was 18 years old, he went to reside in Puerto Rico, where he remained for 10 to 15 years. He then traveled to the United States and resided in New York.
Arvelo has been in a two-year consensual relationship with Estella Baez ("Baez"), age 44, who works as a home attendant and resides with him. Arvelo describes their relationship as very good, referring to Baez as his "wife" although they have not been legally married. Baez continues to remain supportive of Arvelo. [ Page 3]
Arvelo reported that he has two children as a result of past consensual relationships. Christian Silveria, age eight, was born to Arvelo's relationship with Aelaida Silveria, and Emily Marie Matos, age three, was born to his relationship with Marta Matos. Both children reside with their mothers in Bronx, New York. Arvelo reported a good relationship with his children and that his relationship with their respective mothers is fine. Baez reports that Arvelo has an additional child in the United States, Miguel Angel, age 8, and three children in the Dominican Republic, the oldest being approximately 23 years of age.
Baez has two children of her own, Carolyn, age 20, and Steven, age 13, whom Arvelo treats as his own children.
According to a records search with the Immigration and Customs Enforcement (ICE), Arvelo is not legally in the United States and is subject to removal proceedings. His name was listed as Victor Arvelo Reinoso with a date of entry of April 29, 1998.
Arvelo completed the 7th grade in the Dominican Republic. After that he stopped attending school because he had to pay for his expenses and needed to work full time. In a presentence report completed by the New York City Department of Probation in March 1996, it was mentioned that Arvelo obtained his high school diploma. [ Page 4]
Arvelo is skilled in auto body repair. From 2001 until his arrest in the instant case, Arvelo worked at Custom Collision in Fort Lee, New Jersey "off the books" and was paid $500 per week. Arvelo completed a personal financial statement, which indicates that he has no assets and owes $300 in credit card bills under the name of Rafael Rios.
This represents Arvelo's tenth known criminal conviction. Arvelo's criminal history includes an array of assault type convictions, in addition to a narcotics related conviction and a conviction for unauthorized use of a vehicle. At the presentence interview, Arvelo commented that he needed to better control his temper, and, on the advice of counsel, he declined to discuss his involvement with narcotics.
Arvelo has pled guilty to one count of making false statements in application of a passport. Arvelo attempted to apply for a United States passport utilizing personal information that did not belong to him. According to the case agent, this information was obtained when Arvelo broke into his former girlfriend's residence and took documents pertaining to another individual. According to Baez, Arvelo's former girlfriend persuaded him to become involved in the instant offense. [ Page 5]
Because the offense involved false personation by an alien to evade immigration law, the base offense level is 8 pursuant to U.S.S.G. § 2L2.2.
Based on acceptance of responsibility, a 2-level reduction is warranted pursuant to U.S.S.G. § 3E1.1(a). The applicable offense level is thus 6.
Based on past convictions, Arvelo has 7 criminal history points and a Criminal History Category of IV.
For an offense level of 6 and a Criminal History Category of IV, the Sentencing Guidelines range is 6 to 12 months. The maximum term of imprisonment is ten years, pursuant to 18 U.S.C. § 1542.
If a term of imprisonment is imposed, a term of supervised release of not more than three years can be imposed, pursuant to 18 U.S.C. § 3583 (b) (2). The guideline range for a term of supervised release is at least two years but not more than three years, pursuant to § 5D1.2(a)(2). If a sentence of imprisonment of one year or less is imposed, a term of supervised release is not required but is optional, pursuant to § 5D1.1(b). Supervised [ Page 6]
release is required if a term of imprisonment of more than one year is imposed or when required by statute, pursuant to § 5D1.1(a).
Arvelo is eligible for not less than one nor more than five years' probation by statute, pursuant to 18 U.S.C. $sec; 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).
Because the applicable guideline range is in Zone D of the sentencing table, Arvelo is not eligible for probation, pursuant to § 5B1.1, application note #2.
A special assessment of $100 is mandatory, pursuant to 18 U.S.C. § 3013.
Arvelo will be sentenced to 12 months' imprisonment, followed by three years of supervised release. Arvelo appears to be residing illegally in the United States. As a special condition of his supervised release, he will comply with the directives of the Bureau of Citizenship and Immigration Services. [ Page 7]
Arvelo 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, Arvelo 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) shall refrain from any unlawful use of a controlled substance.
Arvelo will participate in a program approved by the United States Probation Office, which may include testing to determine whether he has reverted to using drugs or alcohol. The release of available drug treatment evaluations and reports are authorized to the substance abuse provider, as approved by the probation officer. Arvelo will contribute the costs of services rendered (co-payment) in an amount to be determined by the probation officer, based on availability to pay or availability of third-party payment.
A special assessment fee of $100 is mandatory and is due immediately. [ Page 8]
This sentence is subject to modification at the sentencing hearing now set for September 16, 2003.
It is so ordered.
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