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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.

 Offender Characteristics

  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.

 The Sentence

  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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