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U.S. v. RESTREPO

United States District Court, S.D. New York


April 21, 2004.

UNITED STATES OF AMERICA, -against- FERNANDO RESTREPO, Defendant

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

SENTENCING OPINION

Defendant Fernando Restrepo ("Restrepo") pled guilty on January 26, 2004 to one count of Failure to Appear to Court for Trial in violation of 18 U.S.C. § 3146(a)(1) and (b)(1)(A)(i). Restrepo, having been released on bail for an offense punishable by imprisonment for a term of fifteen years or more, failed to appear for trial scheduled for September 19, 1994. Restrepo will be sentenced to 12 months and one day of imprisonment, to be followed by three years of supervised release. A special assessment fee of $100 is mandatory.

The Defendant

  Restrepo's full name is Fernando Restrepo Trejos. He was born in Riosueio, Colombia on May 31, 1952 from the union of Gonzalo Restrepo and Leonor Trejos, and was raised in a small town in Colombia where his father was employed as a factory worker for a thread manufacturer and his mother was a housewife. Restrepo has five siblings, two of whom reside in Tampa, Florida and the rest of whom reside in Colombia.

  From 1970 to 1972 Restrepo attended Collegio Rafael Uribe, a high school located in Uribe, Colombia. He reports that he graduated and received the U.S. equivalent of a high school diploma.

  In approximately 1972, Restrepo immigrated to New York and was processed as a legal resident. He initially resided in Corona, Queens, New York with two of his brothers. In 1976 he met Andrea Mitchell through a mutual acquaintance, and they were married in New York in 1976. In 1977 they separated, and they were divorced in 1980. Their marriage did not result in the birth of any children.

  In 1981, while in Colombia, Restrepo began dating Marta Serna, whom he subsequently married on January 30, 1982. Their marriage resulted in the birth of three children, currently ages 21, 18 and 16. Restrepo's wife and children reside in Tampa, Florida, where his wife is employed as a housekeeper in a local hotel.

  From 1973 to 1977 Restrepo was employed as a driver for Sunrise Fashion, located in Union City, New Jersey. From 1977 to 1980 he was employed as a driver with the Midland Cab Corporation located in Long Island City, New York. From 1990 to 1994 he was employed as a manager and driver for Rockies Restaurant, located in the College Point area of Queens, New York. During prior inter views in 1993, Restrepo indicated that from November 1991 to April 1992 he was employed as a driver at Able Messenger Service, located in Long Island City, New York. From 1995 to 2003 Restrepo reports that he was employed as a carpenter at Molduras Pereira, a furniture maker. He discontinued this employment when he returned to the United States. Restrepo reports no assets and no liabilities.

  Restrepo reports that he underwent an open — heart bi — pass operation in 2002. Since 1985, Restrepo states that he has received treatment for asthma. He is currently prescribed inhaler medication by the physicians of the Bureau of Prisons. He states that he has never used illicit drugs and does not drink alcoholic beverages.

 The Offense

  On January 5, 1994, Restrepo and others were arrested by agents of the Drug Enforcement Administration in connection with an investigation related to a narcotics conspiracy. On January 10, 1994, Restrepo was released on a $150,000 personal recognizance bond, secured by $5,000, on condition of strict Pretrial Services Agency supervision and the surrender of his passport.

  On May 24, 1994, a one — count indictment charged Restrepo and others with conspiracy with possession and intent to distribute more than 5 kilograms of cocaine, in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(A), and 846. At his arraignment on June 2, 1994, Restrepo pled not guilty to the indictment.

  On September 7, 1994, a pretrial conference regarding Restrepo was held in the United States District Court, but Restrepo was not present. Restrepo was due to appear for trial on September 19, 1994, but absconded.

  On September 20, 2003, Restrepo was arrested by the United States Marshals Service as he was crossing the Canadian border to enter the United States. Restrepo waived Rule 40 proceedings on September 23, 2003, and was transferred to the Southern District of New York on October 1, 2003.

  Pursuant to a written plea agreement, Restrepo has admitted to the sole count in the indictment, and he pled guilty on January 26, 2004 to one count of Failure to Appear to Court for Trial in violation of 18 U.S.C. § 3146(a)(1) and (b)(1)(A)(i). The Guidelines

  The November 5, 2003 edition of the United States Sentencing Commission Guidelines Manual has been used in this case.

  The parties stipulate that the guideline applicable to a violation of 18 U.S.C. § 3146(a)(1) and (b)(1)(A)(i) is § 2J1.6. Pursuant to § 2J1.6, the base offense level is 6.

  Since Restrepo failed to appear in court for trial for an offense under 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(A), and 846, which carries a mandatory minimum custodial term of ten years and a maximum of not more than life imprisonment, a nine — level increase in the offense level is warranted, pursuant to § 2J1.6(b)(2)(A). See also U.S.S.G. § 2J1.6, commentary ("Where the base offense level is determined under subsection (a)(2), the offense level increases in relation to the statutory maximum of the underlying offense.")

  Based on Restrepo's acceptance of responsibility, the offense level is reduced by two levels pursuant to § 3El.l(a).

  The applicable offense level is thus 13. As Restrepo has no known prior criminal convictions, he has zero criminal history points and a Criminal History Category of I.

  Based on these calculations, the guideline range for imprisonment is 12 to 18 months. The maximum term of imprisonment is ten years, pursuant to 18 U.S.C. § 3146 (a)(1) and (B)(1)(A)(i).

  If a term of imprisonment is imposed, a term of supervised release of not more than three years may 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). Supervised release is required if a term of imprisonment of more than one year is imposed or when required by statute, pursuant to § 5Dl.l(a).

  Because the applicable guideline range is in Zone D of the Sentencing Table, Restrepo is not eligible for probation, pursuant to § 5B1.1, application note 2.

  Pursuant to the Violent Crime Control and Law Enforcement Act of 1994, all offenders on probation, parole or supervised release for offenses committed after September 13, 1994, are required to submit to one drug test within fifteen days of commencement of probation, parole or supervised release and at least two drug tests thereafter for use of a controlled substance, unless ameliorated or suspended by the court due to its determination that the defendant poses a low risk of future substance abuse as provided in 18 U.S.C. § 3563(a)(5) and 3583(d).

  The maximum fine is $250,000, pursuant to 18 U.S.C. § 3571. The fine range for the instant offense is from $3,000 to $30,000, pursuant to §§ 5E1.2(c)(3)(A) and 5E1.2(c)(4).

  Subject to Restrepo's ability to pay, the expected costs to the government of any imprisonment, probation, or supervised release shall be considered, 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.

  A special assessment of $100 is mandatory, pursuant to 18 U.S.C. § 3013.

 The Sentence

  As the instant offense represents Restrepo's first conviction and in light of the fact that, while he absconded, he appears to have maintained legitimate employment and refrained from engaging in further criminal conduct, Restrepo will be sentenced at the lower end of the guideline range to 12 months and one day of imprisonment, followed by three years of supervised release.

  No fine will be imposed due to Restrepo's lack of financial resources at this time. However, a special assessment fee of $100 is mandatory and is due immediately.

  Restrepo shall 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, Restrepo 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 device; (5) provide the probation officer with access to any requested financial information; and (6) submit to mandatory drug testing.

  This sentence is subject to modification at the sentencing hearing now set for April 26, 2004.

  It is so ordered.

20040421

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