United States District Court, S.D. New York
June 9, 2004.
UNITED STATES OF AMERICA,
CAVIN ISAAC ANDERSON, Defendant.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
On November 20, 2003, defendant Cavin Isaac Anderson, a/k/a
Cavin Anderson, a/k/a Calvin Anderson ("Anderson") pled guilty to
the sole count of the indictment, illegal re-entry, in violation
of 8 U.S.C. § 1326. At least on August 14, 2003, Anderson, being
an alien, unlawfully entered and was found in the United States,
after having been deported from the United States subsequent to a
conviction for an aggravated felony in 1995. Anderson will be
sentenced to 46 months' imprisonment to be followed by three
years' supervised release. A special assessment fee of $100 is
mandatory and is due immediately.
This statement of facts draws on the Presentence Investigation
Report prepared by the U.S. Probation Office. The Defendant
Anderson was born in 1959 in Kingston, Jamaica, one of seven
children born to the marital union of Milton George Anderson and
Merle Anderson, née Byndloss. According to Anderson, his parents
presently reside in Kingston, Jamaica.
Anderson stated that he completed the eleventh grade at St.
Andrews Technical High School, in Kingston, Jamaica, and has had
no further schooling. He thereafter entered the United States as
a visitor in 1985, reportedly via Canada. Since that time he has
fathered six children with two women.
Anderson has multiple prior convictions. Between 1985 and 1987,
Anderson was convicted on multiple occasions in Bronx Criminal
Court, New York, for Criminal Possession of Marijuana in the
Fourth Degree and Criminal Possession of Marijuana in the Fifth
Degree. During that same period he also had individual
convictions for Disorderly Conduct, Giving Unlawful Gratuities,
Harassment, and Resisting Arrest.
In September of 1988, he was arrested for Possession of a
Weapon, for which he was subsequently convicted and sentenced in
Morris County Superior Court, New Jersey, in July of 1990. He was
arrested in February of 1990 and subsequently convicted and sentenced for Possession of Marijuana in Essex County Superior
Court, New Jersey in August of 1991.
In May of 1993, Anderson was arrested and later convicted of
Rape in the Third Degree in Bronx Supreme Court, New York. He was
sentenced to five years' probation for the offense in February of
1995, and was discharged from probation in August of 2003. As a
result of the conviction, Anderson registered as a Sexual
Offender with the Division of Criminal Justice on February 26,
In October of 1994, Anderson was sentenced to a conditional
discharge and five days' community service as the result of a
conviction for Criminal Possession of Marijuana in the Fifth
Degree stemming from an arrest in June of 1994.
In July of 1994, Anderson was arrested and later convicted for
Criminal Sale of Marijuana in the Fourth Degree, for which he was
sentenced to 90 days' custody or a $500 fine. A separate arrest
and conviction that same month for Criminal Sale of Marijuana in
the Fourth Degree led to a sentence of conditional discharge and
10 days' community service.
In January of 1995, Anderson was again arrested and convicted
of Criminal Possession of Marijuana in the Fifth Degree, an
offense for which he received a sentence of 30 days' custody or a $250 fine. Two years later, in January of 1997, Anderson was
arrested and convicted of Criminal Possession of Marijuana in the
Fourth Degree, an offense for which he received a sentence of ten
days' community service.
Anderson currently has one pending charge against him, stemming
from an arrest in 1987 for Harassment. A bench warrant was issued
in June of 1987 concerning that charge.
According to a New York City presentence report prepared in
1995, Anderson has admitted to daily use of marijuana since 1976.
According to Anderson's financial statement, he has no assets
or liabilities. He has reported that from 1999 to 2003, he drove
a livery cab and earned $500 per week. He also reported that for
one month in 2001 he drove a school bus. Prior to 1997, Anderson
stated that he performed odd jobs to support himself. From 1997
through 1999, Anderson stated that he was supported by his family
while living in Jamaica.
On February 23, 1995, Anderson was convicted of Rape in the
Third Degree in Bronx Supreme Court, New York. He was
subsequently sentenced to 5 years' probation. On November 5,
1996, a deportation order was signed with regard to Anderson, and on
April 3, 1997 he was deported from the United States to Jamaica.
On August 14, 2003, Anderson was pulled over by a Mt. Vernon
police officer while driving a livery van. The officer determined
that a warrant had been issued for Anderson for failing to
register as a sex offender. The officer later determined that
Anderson had been deported and contacted federal authorities.
Anderson was subsequently taken into federal custody and charged
with the instant offense.
The 1997 edition of the United States Sentencing Commission
Guidelines Manual has been utilized in this case for calculation
The guideline for a violation of 8 U.S.C. § 1326 is found in
U.S.S.G. § 2L1.2(a), which provides for a base offense level of
Pursuant to U.S.S.G. § 2L1.2(b)(1)(A), because Anderson was
deported after a conviction for a crime of violence, the offense
level is increased by 16 levels. Based on Anderson's plea allocution, his recognition of
responsibility for the offense, and his timely notification of
his intention to plead guilty, and because the previously
calculated offense level is 16 or greater, the offense level is
reduced by three levels pursuant to U.S.S.G. §§ 3E1.1(a) and
The resulting applicable offense level is 21.
Based upon certain of the convictions described above, and
pursuant to U.S.S.G. §§ 4A1.1(b) and 4A1.1(c), Anderson has six
criminal history points, which result in a Criminal History
Category of III.
Based on these calculations, the guideline range for
imprisonment is 46 to 57 months.
The statutory maximum term of imprisonment is twenty years,
pursuant to 8 U.S.C. § 1326(b)(2).
For a Class C Felony such as the instant offense, up to three
years' supervised release is authorized to follow any period of
imprisonment, pursuant to 18 U.S.C. § 3583(b)(2). A term of
supervised release shall be ordered to follow imprisonment when a
sentence of imprisonment of more than one year is imposed, or
when required by statute, pursuant to U.S.S.G. § 5D1.1(a). If a
term of supervised release is ordered, it shall be at least two
years but not more than three years in duration for a defendant convicted
of a Class C or D Felony, pursuant to U.S.S.G. § 5D1.2(a)(2).
For a felony, a term of probation of not less than one nor more
than five years is authorized, pursuant to
18 U.S.C. § 3561(c)(1). Under the Guidelines, because the applicable
guideline range here is in Zone D of the sentencing table, a
sentence of probation is not authorized, pursuant to U.S.S.G. §
5B1.1, Application Note 2.
The statutory maximum fine is $250,000, pursuant to
18 U.S.C. § 3571(b)(3). The guideline fine range for the instant offense is
from $7,500 to $75,000, pursuant to U.S.S.G. §§ 5E1.2(c)(3)(A)
Subject to Anderson'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
$1,910.17 to be used for imprisonment, a monthly cost of $217.18
for supervision, and a monthly cost of $1,186.25 for community
confinement. A special assessment of $100 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 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).
For the instant offense, which represents Anderson's
twenty-third felony conviction, Anderson is sentenced to 46
months' imprisonment, to be followed by three years of supervised
release. A special assessment fee of $100 payable to the United
States is mandatory and due immediately. As Anderson lacks any
financial resources, no fine is imposed.
Anderson has been detained without bail since his arrest and is
not a candidate for voluntary surrender, in accordance with
18 U.S.C. § 3143(a)(2). Anderson 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, Anderson 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) cooperate with the Bureau
of Immigration and Citizenship Services (formerly the Immigration
and Naturalization Service) regarding any possible deportation
The mandatory drug testing condition is suspended due to
imposition of a special condition requiring drug treatment and
testing. Anderson will participate in a program approved by the
United States Probation Office, which program may include testing
to determine whether Anderson 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. Anderson 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 sentencing
hearing now set for June 14, 2004.
It is so ordered.
© 1992-2004 VersusLaw Inc.