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United States District Court, S.D. New York

April 6, 2004.


The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge


On January 13, 2004, defendant Martin Felix Millan ("Millan") pleaded guilty to one count of Conspiracy to Distribute with Intent to Possess Heroin, 21 U.S.C. § 846, a Class B Felony, and one count of Distribution and Possession with Intent to Distribute Heroin, 21 U.S.C. § 841(b)(1)(B), also a Class B Felony.

The Offense Conduct

  This statement of facts draws on the Presentence Investigation Report prepared by the U.S. Probation Office.

  Millan was indicted along with eight other defendants for drug — trafficking activity involving the sale of crack and heroin. On September 26, 2003, Millan drove about in a car in the Bronx with two other men, one of whom, co-defendant Johnny Ozuna ("Ozuna"), is viewed by the government as the leader and supplier of this drug trafficking activity. Millan, a resident of Boston, had come to meet with Ozuna in order to purchase a quantity of heroin. When agents stopped the vehicle and arrested them, Ozuna used his cellphone to contact co-defendant Leonardo Gerinson ("Gerinson"). Ozuna not only informed Gerinson about the arrest, but warned him either to get rid of or to sell the drugs, which he referred to as "stuff." Gerinson and co-defendant Clifton Lee Davis ("Davis") were subsequently apprehended as they drove about in a van owned by Ozuna. A search of the van revealed a secret compartment in the floor of the van which held a machete and about $1,800 in counterfeit U.S. currency. Gerinson, after he had been apprised of his rights, told the agents that he had suspected Ozuna of being a drug dealer based on his activities.

  Gerinson appears to have worked for Ozuna in the distribution of narcotics to various customers. Davis was one of Ozuna's suppliers. Millan was a customer of Ozuna's. Millan was charged with distribution and possession with intent to distribute a smaller amount of narcotics than was attributed to Ozuna and his organization.

  At the time of his arrest, Millan was serving a period of supervised release following his conviction on federal drug charges in 1997. Millan's supervising officer in Massachusetts indicated that Millan had not sought permission to travel to New York. An arrest warrant was issued by the District of the Virgin Islands on December 12, 2003, and remains active. Offender Characteristics

  The defendant, who identifies himself as Martin Millan-Felix, was reportedly born in Carolina, Puerto Rico. on August 18, 1969. Millan has fathered four or five children. Three of the children, Marilyn, age 15, Xiomary, age 14, and Natasha, age 11, live with their mother in Puerto Rico, with whom Millan reportedly maintains contact. Millan has another daughter, Andrea age eight, from a nine-year relationship with another woman who lives in Massachusetts, and with whom Millan is unable to speak regularly due to financial limitations. Millan reported having one other child, Brian, age six or seven. Millan is unsure whether he is the father of Brian, as Brian's mother was dating two other men during the relationship. Before his arrest, Millan had planned on scheduling a DNA exam to confirm paternity.

  Millan commenced marijuana use at the age of eight, alcohol consumption at the age of 11, cocaine use at the age of 14, and heroin use at the age of 18. Despite his regular drug use, Millan's probation officer was unaware of his drug addiction because Millan ingested a cocktail of vinegar and an unidentified pill prior to his scheduled meeting with the officer, which would reportedly yield negative results. Millan's education is reportedly limited to the second grade which he attended in Puerto Rico. Millan only speaks Spanish; he is unable to read or write in Spanish or English.

  Millan completed a financial statement wherein he reported no assets. He listed numerous debts, inclusive of cellular telephone service, furniture and a $10,000 loan which was borrowed on his behalf to purchase the truck he used to conduct business in Puerto Rico. A current credit report lists four individual accounts which have either been charged off, transferred or sold. A secured joint account remains active with a balance of just under $7,000. A collection in the amount of $1,991 is outstanding.

 Adjustment for Acceptance of Responsibility

  On the advice of counsel, Millan did not make a statement of responsibility. However, Millan did provide an allocution acceptable to the Court at the time of his guilty plea.

 Offense Level Computation

  The November 1, 2003 edition of the Guidelines Manual has been used in this case. The two counts are grouped, pursuant to U.S.S.G. § 5 3D1.2(b), as the counts constitute transactions connected by a common criminal objective or part of a common scheme or plan. The Guideline for a violation of 21 U.S.C. § 841(b)(1)(B) and 846 is found in § 2D1.1. Millan has stipulated with the government that his criminal activity involved the distribution of between 100 and 400 grams of heroin. Accordingly, the base offense level pursuant to § 2D1.1(c)(7) is 26.

  Based on Millan's plea allocution, he has shown recognition of responsibility for his offense. Because of Millan's timely notification of his intention to plead guilty, thus allowing the government to allocate its resources more efficiently, and because the aforementioned base offense level is 16 or greater, pursuant to § 3E1.1(a) and (b), the offense is reduced three levels, to 23.

 Criminal History Category

  On August 11, 1988, Millan pleaded guilty to Possession of a Firearm and Illegal Transportation of a Firearm in San Juan Superior Court, San Juan, Puerto Rico, and served six months probation. Because these sentences were not imposed within ten years of Millan's commencement of the instant offense, no criminal history points are added, pursuant to § 4A1.2(e)(3). On May 4, 1997, Millan was arrested in the Virgin Islands, prior to boarding a flight to New York's JFK International Airport, after a U.S. Customs inspector discovered two zip-lock bags inside his shoes which contained over 700 grams of cocaine. On November 12, 1997, Millan pleaded guilty to Possession of Cocaine with Intent to Distribute in U.S. District Court for the Virgin Islands, and was sentenced to 37 months imprisonment and five years of supervised release. Pursuant to § 4A1.1(a), three criminal history points are added.

  At the time of the instant offense, Millan was on supervised release. Pursuant to § 4A.1.(d), two criminal history points are added, for a total of five. According to the sentencing table at Chapter 5, Part A, five criminal history points establish a Criminal History Category of III.

 Applicable Guidelines Range

  The provisions under which Millan pleaded guilty provide for a minimum sentence of five years and a maximum of 40 years on each count pursuant to 21 U.S.C. § 841(b)(1)(B) and 846. Based on a total offense level of 23 and a Criminal History category of III, the guideline range for imprisonment is 57 to 71 months (Zone D). However, as the statutory minimum is five years, the guideline range is enhanced to 60 to 71 months, pursuant to § 5G1.1(b). A term of at least four years of supervised release is required on each count if a sentence of imprisonment is imposed, pursuant to 21 U.S.C. § 841(b)(1)(B) and 846. Such terms of supervised release run concurrently pursuant to 18 U.S.C. § 3624(e). The guideline range for a term of supervised release is four to five years on each count, pursuant to § 5D1.2(b).

  Because the applicable guideline range is in Zone D of the Sentencing Table, and because probation has been precluded by statute, Millan is not eligible for probation.

  The maximum fine is $2,000,000 on each count, pursuant to 21 U.S.C. § 841 (b)(1)(B). A special assessment of $200 is mandatory, pursuant to 18 U.S.C. § 3013. The fine range is from $10,000 to $4,000,000, pursuant to § 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 pursuant to § 5E1.2 (d)(7). The most recent advisory from the Administrative Office of the United States Courts suggests a monthly cost of $1,876.61 to be used for imprisonment, a monthly cost of $283.23 for supervision, and a monthly cost of $1, 475.67 for community confinement. Pursuant to 21 U.S.C. § 862 (a)(1)(A), upon a second conviction for distribution of a controlled substance, a defendant may be declared ineligible for any or all federal benefits for up to five years as determined by the Court. Pursuant to § 5F1.6, the Court may deny eligibility for certain federal benefits of any individual convicted of distribution or possession of a controlled substance.

 The Sentence

  In light of the foregoing, Millan will be sentenced to 64 months on each count, to be run concurrently, to be followed by five years of supervised release on each count, also to be run concurrently. Millan is sentenced to the middle of the range because of his repeated criminal behavior, his lack of deterrence by his past federal prison term, and his lack of compliance while on supervised release. It is anticipated that a lengthy sentence may allow the defendant to redirect his life and serve as a better example to his children upon the completion of his sentence.

  Due to Millan's limited resources, no fine will be imposed.

  As mandatory conditions of probation, Millan shall (1) not commit another federal, state or local crime; (2) not illegally possess a controlled substance; and (3) not possess a firearm or destructive device.

  The standard conditions of supervision shall be imposed, with the following special condition: Millan will participate in a program approved by the United States Probation Office, which program may include testing to determine whether the defendant has reverted to using drugs or alcohol. The Court authorizes the release of available drug treatment evaluations and reports to the substance abuse treatment provider, as approved by the probation officer. Millan will be required to contribute to the costs of services rendered (co-payment), in an amount determined by the probation officer, based on ability to pay or availability of the third-party payment.

  Millan is to report to the nearest Probation Office within 72 hours of release from custody. Millan shall be supervised by the district of his residence. It is further ordered that Millan shall pay to the United States a special assessment of $200, which shall be due immediately.

  If jurisdiction over Millan's probation violation from the District of the Virgin Islands is transferred to this District, that violation will be addressed at the sentencing hearing. This sentence is subject to modification at the sentenc-ing hearing now set for April 12, 2004.

 It is so ordered.


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