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U.S. v. ANDERSON

United States District Court, S.D. New York


June 9, 2004.

UNITED STATES OF AMERICA,
v.
CAVIN ISAAC ANDERSON, Defendant.

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

SENTENCING OPINION

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.

Background

  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, 1996.

  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.

  The Offense

  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 Guidelines

  The 1997 edition of the United States Sentencing Commission Guidelines Manual has been utilized in this case for calculation purposes.

  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 8.

  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 3E1.1(b).

  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) and 5E1.2(c)(3)(B).

  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).

  The Sentence

  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 proceedings.

  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.

20040609

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