United States District Court, S.D. New York
April 8, 2004.
U.S., -against- EDGAR BATISTA ROJAS, Defendant
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
On December 5, 2003, defendant Edgar Batista Rojas ("Batista Rojas")
pleaded guilty to one count of Conspiracy to Distribute with Intent to
Possess Cocaine, 21 U.S.C. § 846, a Class C Felony.
The Offense Conduct
This statement of facts draws on the Presentence Investigation Report
prepared by the U.S. Probation Office.
Batista Rojas was indicted along with eight other defendants for drug
trafficking activity involving the sale of crack and heroin. On
August 27, 2003, an unidentified man telephoned co. defendant
Johnny Ozuna ("Ozuna") and indicated that he was in need of "10," which
was presumed to mean ten grams of crack cocaine. Ozuna told him to go to
a barbershop on West 141st Street in Manhattan and ask for Batista Rojas.
At the time, Batista Rojas worked at the barbershop. When Batista Rojas called
Ozuna regarding the transaction, Ozuna told him to take the money from
the ten, but only to give eight to the customer. Ozuna also told Batista
Rojas that the substance was cocaine.
Batista Rojas appears to have worked for Ozuna in the distribution of
narcotics to various customers. Batista Rojas was charged with
distribution and possession with intent to distribute a smaller amount of
narcotics than was attributed to Ozuna and his organization.
Batista Rojas was born in Santo Domingo, Dominican Republic on November
30, 1965. Batista Rojas resided in Bayamon, Puerto Rico. from 1994 until
early 2003, when he moved to the Bronx. The Bureau of Citizenship and
Immigration Services determined that Batista Rojas became a naturalized
U.S. citizen on April 25, 2002.
Batista Rojas has three sons from a previous relationship: Miguel, age
17, David, age 15, and Irving, age 13. Batista Rojas explained that he
had supported his sons prior to his arrest, but that he is unable to
contact them at present, and the mother of the three boys moved
subsequent to his apprehension. Since 1994, Batista Rojas has cohabited with Maria Sosa, with whom he
has two children, Katie, age 6, and Justin, age* 5. Batista Rojas stated
that they enjoy an excellent relationship, and that it is his intent to
marry her upon his release from confinement. Ms. Sosa described Batista
Rojas as an extraordinary partner and father, and stated that she will do
whatever possible to assist Batista Rojas.
Batista Rojas stated that he first began to experience depression and
anxiety when Ms. Sosa and their children moved to New York. Batista Rojas
indicated that he visited a public health facility in Bayamon, where he
was prescribed Paxil. Though he stopped taking it upon his arrival in New
York, the feelings of depression and anxiety re surfaced when he
was incarcerated. Reportedly, Paxil was prescribed again in early
February 2004 at the Metropolitan Detention Center.
Batista Rojas stated that he began to use marijuana in late 2002, and
continued with that substance on an intermittent basis until his arrest
on the instant offense. He indicated that he has had no involvement with
any other illicit substance, or alcohol. Adjustment for Acceptance of Responsibility
On the advice of counsel, Batista Rojas did not make a statement of
responsibility. However, Batista Rojas 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 Guideline for a violation of 21 U.S.C. § 846 is found in
U.S.S.G. § 2D1.1. Batista Rojas has stipulated with the government
that his criminal activity involved the distribution of approximately
eight grams of cocaine. Accordingly, the base offense level pursuant to
§ 2Dl.l(c)(14) is 12.
Based on Batista Rojas' plea allocution, he has shown recognition of
responsibility for his offense. Because of Batista Rojas' timely
notification of his intention to plead guilty, thus allowing the
government to allocate its resources more efficiently, pursuant to §
3El.l(a), the offense is reduced two levels, to 10. Criminal History Category
According to the FBI and the New York State Division of Criminal
Justice Services, Bureau of Identification, Batista Rojas has no prior
criminal convictions. He therefore has zero criminal history points and a
Criminal History Category of I.
Applicable Guidelines Range
The provision under which Batista Rojas pleaded guilty provides for a
maximum sentence of 20 years pursuant to 21 U.S.C. § 846 and 841(b)
(1)(C). Based on a total offense level of 10 and a Criminal History
category of I, the guideline range for imprisonment is 6 to 12 months.
Batista Rojas' sentence falls within Zone B of the sentencing table.
Thus, the minimum term may be satisfied by (1) a sentence of
imprisonment; (2) a sentence of imprisonment that includes a term of
supervised release with a condition that substitutes community
confinement or home detention provided that at least one month is
satisfied by imprisonment; or (3) a sentence of probation that includes a
condition or combination of conditions that substitute intermittent
confinement, community confinement, or home detention for imprisonment.
§ 5C1.1(c). Although the indictment charges Batista Rojas with a violation of
21 U.S.C. § 846 as a Class A felony, Batista Rojas was allowed to plead
guilty to a lesser included quantity as a Class C felony. The statutory
penalty for a violation of 21 U.S.C. § 841 (b)(1)(C) includes no
minimum imprisonment and a maximum of 20 years imprisonment, at least
three years of supervised release, and a maximum fine of $1,000,000,
whereas the penalty for a Class A felony is a ten year mandatory
minimum imprisonment and a maximum of life imprisonment, at least five
years of supervised release, and a maximum fine of $4,000,000.
A term of at least three years of supervised release is required if a
sentence of imprisonment is imposed, pursuant to 21 U.S.C. § 846. The
guideline range for a term of supervised release is three years, pursuant
to § 5D1.2(b).
Batista Rojas is eligible for not less than one nor more than five
years probation by statute, pursuant to 18 U.S.C. § 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 B, Batista
Rojas is eligible for probation. The maximum fine is $1,000,000, pursuant to 21 U.S.C. § 846. A
special assessment of $100 is mandatory, pursuant to*
18 U.S.C. § 3013. The fine range is from $2,000 to $1,000,000, pursuant to §
5E1.2(c)(3) and (c)(4).
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 U.S. 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 first 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.
In light of the foregoing, Batista Rojas will be sentenced to five
years probation with the special condition of six months of home confinement. No supervised release will be imposed.
Batista Rojas poses no apparent danger to the community, and has
indicated his intent to leave the New York area to avoid anything that
would tie him to unlawful activity. For these reasons a noncustodial
sentence with a period of home detention is warranted.
In consideration of his familial obligations, no fine will be imposed.
As mandatory conditions of probation, Batista Rojas 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 mandatory drug testing condition is suspended due to
imposition of a special condition requiring drug treatment or testing.
The standard conditions of supervision shall be imposed, with the
following special condition: Batista Rojas will participate in a program
approved by the U.S. 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. Batista Rojas 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. Batista Rojas shall 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.
Batista Rojas shall contribute to the costs of services rendered not
covered by third party payment, if the defendant has the ability
to pay. The Court authorizes the release of available psychological and
psychiatric evaluations and reports to the health care provider.
Batista Rojas shall comply with the conditions of home confinement for
a period of six months. During this time Batista Rojas must remain at his
place of residence except for employment and other activities approved by
his probation officer. Batista Rojas will maintain a telephone at his
place of residence without call forwarding, a modem, caller ID, call
waiting, or portable cordless phones for the above period. At the
direction of his probation officer, Batista Rojas shall wear an
electronic monitoring device and follow electronic monitoring procedures
specified by his probation officer. Home confinement shall commence on a
date to be determine by Batista Rojas' probation officer. Batista Rojas
shall pay the costs of home confinement on a self payment or co.
payment basis as directed by the probation officer.
Batista Rojas is to report to the nearest Probation Office within 72
hours of release from custody. Batista Rojas shall be supervised by the
district of his residence. It is further ordered that Batista Rojas shall pay to the U.S. a
special assessment of $100, which shall be due immediately. *
This sentence is subject to modification at the sentencing hearing now
set for April 12, 2004.
It is so ordered.
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