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January 9, 2004.


The opinion of the court was delivered by: VICTOR MARRERO, District Judge


Defendant Jubelequis Mateo ("Mateo") pled guilty before this Court to conspiring to distribute heroin. She now moves the Court to adjust downward the base level offense under the Sentencing Guidelines because she played only a minor role in the offense. She also moves the Court to depart downwardly from the otherwise applicable sentencing range because, among other reasons, she has suffered from harsh pre-sentence confinement conditions and has extraordinary family circumstances. For the reasons stated, Mateo's motion is granted in part and denied in part.


  Mateo, age 22, came to the United States from the Dominican Republic in 2001, hoping to be able to earn enough money to provide for her daughter Arianni, whom she left in Page 2 the care of her mother (Arianni's grandmother) in the Dominican Republic. Arianni's father has a long history of physically abusing Mateo and is no longer involved in Arianni's upbringing.

  Mateo found work as a waitress in New Jersey. One night after work, she attended a party at which she was raped and became pregnant. During this time, Mateo met a drug supplier who learned that Mateo had financial problems. Mateo's involvement with this supplier led to the conviction at issue here. In early 2002, Mateo attempted to broker two large heroin transactions by providing drug samples on behalf of the supplier to persons who had called her seeking to buy two kilograms of heroin. In the first transaction, Mateo arrived with her supplier at the agreed-upon delivery point, but the buyer declined to meet her. Authorities arrested Mateo in March 2002, before the second transaction was complete. The first potential buyer was an confidential government source, the second an undercover government agent.

  Following her arrest, Mateo was first incarcerated at the Metropolitan Detention Center in Brooklyn (the "MDC"), where she stayed in an "open unit" with around 100 other inmates. At that time, Mateo was approximately six weeks pregnant. From then through October 2002, Mateo received regular pregnancy-related care at the MDC and on occasion at medical facilities Page 3 outside prison. On October 30, 2002, she complained of contractions and was examined by MDC medical staff, who noted that Mateo showed no signs of labor and estimated her date of delivery to be around November 25, 2002. She was returned to her housing unit.

  At around 3:00 a.m. on November 5, 2002, Mateo awoke with labor pains. Another inmate, Wendy Castro Fernandez ("Fernandez"), notified the guard that Mateo was in labor, but he told her that Mateo would have to wait until 6:00 a.m. for the physician's assistant (the "PA") to arrive. According to Fernandez, at 6:00 a.m. she again asked the guard for help, but he told her she would have to wait longer. At around 8:00 a.m., after the guards had changed shifts, Fernandez alerted the new guard on duty that Mateo was in labor. The PA on duty appeared sometime between 10:00 a.m. and 11:00 a.m., but left without fully examining Mateo. He apparently concluded that, since Mateo's due date was not until November 25, she could not have been in labor.

  During the balance of day, other inmates alerted the authorities on Mateo's behalf, but she was not moved out of the open unit until sometime between 4:00 p.m. and 5:00 p.m., at which point she was transferred to the medical unit. The PA finally called the emergency service for an ambulance sometime around 6:30 p.m. when it became apparent that Mateo was about Page 4 to give birth. A team of Emergency Medical Technicians arrived shortly thereafter and noticed that, even though Mateo was "crowning" (the baby's head had begun to emerge), she was still wearing her underwear. Mateo gave birth while laying on an upright stretcher in the MDC at 6:53 p.m., without the benefit of pain relief or other medication. Mateo's sister Maritza, who lives in Boston, Masachusetts, now cares for the child, a boy named Johan.

  Maritza's husband objected to her assuming custody of Johan, and he has since abandoned Maritza. Maritza reports extreme financial, difficulty in raising Johan alone. Mateo's mother, Josephina Medina ("Medina"), also reports extreme difficulty in raising Arianni alone in the Dominican Republic. Medina suffers from high blood pressure and poor vision.

  On February 28, 2003, an MDC corrections officer accused Mateo and her cellmate of smoking in their cells. The women denied the allegation. The officer threatened to file a report, unless the women would undress in front of him. They complied. The officer returned the next day, March 1, and again requested the women undress in front of him. They refused, and filed a formal complaint against the officer.

  Mateo reports being depressed and has seen a prison psychiatrists several times. Psychiatric records indicate she was seen for symptoms of post traumatic stress disorder, Page 5 anxiety, depression, low self-esteem, insomnia and substance abuse. Shortly after the sexual harassment incident, Mateo was briefly placed on suicide watch.



  As a general rule, the Court must use the Sentencing Guidelines Manual in effect at the date of sentencing. See 18 U.S.C. § 3553(a)(4) (A) (ii); see also United States Sentencing Guidelines Manual § 1B1.11 (2002) ("U.S.S.G."). However, "where application of the Guidelines in effect at sentencing would result in a more severe sentence than the version in effect at the time of the commission of the offense," the application of the newer guidelines would violate the Ex Post Facto Clause of the Constitution. United States v. Broderson, 67 F.3d 452, 456 (2d Cir. 1995). In such cases, "the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed." U.S.S.G. § 1B1.11(b)(1). "When an amended version of a guideline represents only a clarification by the Sentencing Commission of the original version rather than a substantive change," there is no Ex Post Facto problem and "the amended version is to be applied." United States v. Gonzalez, 281 F.3d 38, 46 (2d Cir. 2002).

  After the Probation Department prepared its Presentence Investigation Report, and after the parties had briefed the Page 6 issues here, the Sentencing Commission issued emergency revised guidelines effective October 27, 2003, pursuant to the recently-enacted PROTECT Act, Pub. L. 108-21, 117 Stat 650 (2003). See 60 Fed. Reg. 60154 (Oct. 21, 2003). Those revisions might result in a more severe sentence for Mateo in at least two ways. First, the revisions prohibit combining so-called "considered" and "unconsidered" factors in awarding a downward departure based on multiple circumstances. Id. at 60155 (amending § 5K2.0(c)(2)(B)). Mateo has urged the Court to make just such a multiple circumstances departure. Second, the revision "further restricts family ties departures by adding an application note that establishes heightened criteria for departures based on loss of caretaking or financial support." Id. at 60175 (amending § 5H1.6). Mateo has moved the Court to make a departure based on the fact that her two young children will be deprived of her financial support and caretaking. Because the Sentencing Commission has indicated that this revision establishes ...

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