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United States District Court, S.D. New York

May 3, 2004.


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


Defendant Antonio Santana ("Santana") pled guilty on September 22, 2003 to one count of Conspiracy to Distribute and Possess with Intent to Distribute Cocaine and Heroine, in violation of 21 U.S.C. § 846, and two counts of Distribution and Possession with Intent to Distribute Cocaine, in violation of 21 U.S.C. § 812, 841(a)(1) and 841(b)(1)(A). In November 2002, Santana, along with his co-defendant Miguel Ortiz ("Ortiz"), also known as "Miami," distributed and possessed with intent to distribute approximately ten kilograms of cocaine and approximately two kilograms of heroin. Santana will be sentenced to 121 months' imprisonment to be followed by five years of supervised release on each count, all counts to run concurrently. A special assessment fee of $300 is mandatory and is due immediately. Background

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

 The Defendant

  Antonio Rafael Santana was born on September 3, 1966 in Santiago, Dominican Republic, to Nereida Beato and Jose Santana. A prior Presentence Investigation Report indicated that Santana was born in Bayamon, Puerto Rico.

  Santana stated that his father and four paternal half — siblings live in the New York City area. His mother lives in the Dominican Republic as do his four surviving maternal half — siblings.

  According to Santana, he was raised in poor economic conditions in the Dominican Republic until the age of 13, when he moved to New York to live with his father. He reported that he entered the United States in 1979 and that he has permanent resident status in this country. According to the Department of Homeland Security — Bureau of Immigration and Customs Enforcement ("BICE"), Santana entered the United States on April 9, 1983 and has permanent resident status. BICE has also indicated that if Santana is convicted of a felony offense he may be subject to removal proceedings.

  Santana reported that he has never been married, but has been involved in a consensual relationship with Grace Valerio for five years. Santana's only child was born from this relationship and currently resides with her mother.

  According to Santana, he obtained a 12th grade education at Brandeis High School in Manhattan, but did not graduate. Santana advised that he received his GED in 1993 while incarcerat — ed, but the New York State Education Department does not have any record of his diploma in its database.

  In 1989 Santana was convicted of driving while ability-impaired as the result of alcohol and given a conditional discharge with a license suspension for 90 days.

  In October of 1990 Santana was arrested and subsequently convicted of attempted criminal sale of a controlled substance in the third degree and attempted conspiracy in the first degree. He was sentenced in January of 1992 to two concurrent terms of 54 months to life and one to three years' custody. According to the New York City presentence report dated January of 1992, Santana, in concert with fifteen other individuals jointly indicted, made telephone calls between February and September of 1990 to several undercover police officers informing them of a sale of cocaine. On several occasions, Santana sold cocaine to undercover police officers.

  Santana was released to the New York State Division of Parole Supervision on April 11, 1995, for a life term. However, Santana was discharged from parole supervision at Board direction on October 7, 1999.

  Santana stated that from 1996 until 2002 he was employed as a waiter in Manhattan, earning $12 per hour. Prior to that time, Santana reported being employed at a Manhattan hotel, where he earned $10 per hour, and at Columbia University, where he earned $16 per hour as a waiter.

  According to Santana's written financial statement, he has a net worth of approximately $500. An Equifax credit report generated on November 21, 2003 indicates that he has three credit cards with outstanding balances totaling $2,324, all of which have been "charged off" or closed.

  Santana admitted to cocaine use, stating that he first used cocaine in 1987 and that he last used cocaine in October 2002. He stated that he would use cocaine "on weekends." The Offense

  On November 5, 2002, an individual (the "Individual") was arrested in Manhattan in possession of a duffle bag containing approximately ten kilograms of cocaine. Prior to his arrest, the Individual was seen by agents of the Federal Bureau of Investiga-tion ("FBI") entering a Chevrolet Malibu (the "Malibu"). Following his arrest on November 5, 2002, the Individual voluntarily made a statement in which he said that he had picked up the ten kilograms of cocaine from an individual known an "Miami."

  Following his arrest, the Individual made a series of telephone calls to the person he knew as "Miami" on November 5, 2002, during which "Miami" told the Individual, in substance, that he would deliver three kilograms of cocaine of the Individual the next day.

  On November 6, 2002, the Individual had additional telephone conversations with "Miami" during which "Miami" informed the Individual that he could only deliver two kilograms of heroin to the Individual, as he had already distributed one kilogram of heroin to someone else. During these telephone calls, "Miami" and the Individual made arrangements to meet later in the day at a restaurant located in the vicinity of Second Avenue and 66th Street in Manhattan (the "Restaurant"). Later on November 6, 2002, the Individual went to the Restaurant to meet with "Miami." While he was there, a person later identified as Ortiz arrived and met with him. According to the Individual, during their meeting Ortiz placed a telephone call, after which Ortiz told the Individual that the heroin was there and that the Individual could go get it.

  During this time, FBI agents conducting surveillance saw the Malibu pull up and park in the vicinity of Second Avenue and 67th Street. The Individual left the Restaurant and entered the Malibu, where he met with a person later identified as Santana. According to the Individual, Santana was the same person with whom he had met the day before, when he picked up the ten kilograms of cocaine.

  After speaking with Santana, the Individual exited the Malibu and removed a bag (the "Bag") from the truck of the car. After he removed the Bag, FBI agents placed Santana under arrest. At approximately the same time, FBI agents placed Ortiz under arrest as he was leaving the Restaurant and entering his car.

  At the time of his arrest, Santana had in his possession a slip of paper that had a series of numbers written on it which appeared, based on the experience of one of the FBI agents, to contain drug records. Field tests conducted on the substance found inside the Bag confirmed that the substance has a gross weight of approximate-ly two kilograms and that it contains heroin.

  Pursuant to a written plea agreement dated September 9, 2003, Santana pled guilty to all three counts in the indictment on September 22, 2003. In the plea agreement the parties stipulated that neither a downward nor an upward departure from the stipulated sentencing range of 121 to 151 months' incarceration is warranted. Accordingly, the parties stipulated that neither party will seek such a departure.

 The Guidelines

  The November 1, 2002 edition of the United States Sentencing Commission Guidelines Manual has been used in this case.

  Pursuant to § 3D1.2(d), all three counts in the indictment are grouped together as closely related counts the offense level for which is determined largely on the basis of "the quantity of a substance involved." U.S.S.G. § 3D1.2(d).

  The guideline for a violation of 21 U.S.C. § 846 is found in § 2D1.1, which directs that the base offense level is determined by the quantity of controlled substances involved in the offense. According to § 2D1.1, Application Note 10, when different controlled substances are involved in an offense, each of the substances should be converted to "its marijuana equivalent," after which the quantities are added to produce a total which, when located in the Drug Quantity Table, provides "the combined offense level." U.S.S.G. § 2D1.1, Application Note 10. The instant offense involved a total of ten kilograms of cocaine (or the equivalent of 2,000 kilograms of marijuana) and two kilograms of heroin (or the equivalent of 2,000 kilograms of marijuana), resulting in a total equivalent of 4,000 kilograms of marijuana. Accordingly, the total offense level is 34, pursuant to § 2D1.1(c) — (3), which sets a base offense level for offenses involving at least 3,000 but less than 10,000 kilograms of marijuana.

  Based on Santana's plea allocution and his timely notification of his intention to plead guilty, and because the aforementioned base offense level is 16 or greater, the offense level is reduced three levels pursuant to § 3E1.1(a) and (b).

  The applicable offense level is thus 31.

  The criminal convictions set forth above result in a subtotal criminal history score of three, pursuant to §§ 4A1.1(a), 4A1.2(e)(2) and 4A1.2, Application Note 3, which establishes a Criminal History Category of II. Based on these calculations, the guideline range for imprisonment is 121 to 151 months. The mandatory minimum term* on each count is ten years and the maximum term is life, pursuant to 21 U.S.C. § 841(a)(1), 841(b)(1)(A) and 846.

  On each count, a term of supervised release of at least five years' supervised release, up to life, is required if a sentence of imprisonment is imposed, pursuant to 21 U.S.C. § 841 (a)(1), 841(b)(1)(A) and 846. Such terms are to run concurrently, pursuant to 18 U.S.C. § 3624(e). The guideline range for a term of supervised release on each count is five years, pursuant to § 5D1.2(b).

  Santana is not eligible for probation because the instant offenses are ones for which probation has been expressly precluded by statute. See 18 U.S.C. § 3561(a)(2); 21 U.S.C. § 841(a)(1), 841(b)(1)(A) and 846; see also U.S.S.G. § 5B1.1(b)(2).

  The maximum fine on each count is $4 million, pursuant to 21 U.S.C. § 841(a)(1), 841(b)(1)(A) and 846. The guideline range is from $15,000 to $12,000,000, pursuant to § 5E1.2(c)(4).

  Subject to Santana's ability to pay, the expected costs to the government of any imprisonment, probation, or supervised release shall be considered in imposing a fine, 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 $300 is mandatory, pursuant to 18 U.S.C. § 3013.

  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 determina-tion 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 Sentence

  The instant offense represents Santana's fourth criminal conviction and his third felony conviction. A sentence of 121 months' imprisonment to be followed by five years of supervised release on each count, all counts to run concurrently, is appropriate. No fine will be imposed due to Santana's lack of financial resources at this time. However, a special assessment fee of $300 is mandatory and is due immediately.

  Santana 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, Santana 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; and (5) obey the immigration laws and comply with the directives of immigration authorities.

  As Santana admitted to the use of cocaine, he would benefit from treatment for chemical dependency. Accordingly, the mandatory drug testing condition is suspended due to imposition of a special condition requiring drug treatment and testing. Santana will participate in a program approved by the U.S. Probation Office, which program may include testing to determine whether Santana has reverted to using drugs or alcohol. The release of available drug treatment evaluations and reports to the substance abuse treatment provider, as approved by the Probation Officer, is hereby authorized. Santana 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 third-party payment.

  This sentence is subject to modification at the sentenc-ing hearing now set for May 4, 2004.

  It is so ordered.


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