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United States District Court, S.D. New York

June 15, 2004.


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


On March 23, 2004, defendant Barrington Smith ("Smith") allocuted to the sole count of the indictment, conspiracy to distribute and possess with intent to distribute approximately 1 kilogram of marijuana, in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(D), and 846. Smith will be sentenced to five years' probation. A special assessment fee of $100 is mandatory and is due immediately.


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

  The Defendant

  Smith, whose reported true name is "Carrington Ricardo Smith," was born on June 13, 1976, in Kingston, Jamaica. Smith reported that he completed the tenth grade at the Edith Dalton Comprehensive High School in Kingston, Jamaica in 1994, thereafter ceasing his education to find employment and help financially support his family. Smith reported that from 1992 to 1999 he was employed full-time as a motorcycle mechanic in Jamaica.

  Smith came to the United States on October 6, 1999 pursuant to a visa that expires on October 5, 2004. From his arrival in the United States in 1999 until 2000, Smith reported that he was financially supported by his sister, who resides in New York, in exchange for baby-sitting her son. From 2001 to 2002, Smith reportedly worked as a barber part-time, and since May of 2003 Smith has reportedly been working as an independent construction assistant. He also reportedly continues to earn some money baby-sitting for his nephew.

  Smith married Glenda Smith, née Smith, on June 26, 2003 in New York, New York.

  Smith's sole reported asset is a used 1992 Acura that was purchased used and is worth approximately $2,500. Smith has reported no debt.

  On March 24, 2002, Smith pled guilty to unlawful possession of marijuana, for which he was sentenced to a $50 fine in Manhattan Criminal Court, New York, New York. Smith has a charge of criminal possession of marijuana in the second degree pending in Bronx Criminal Court, Bronx, New York, stemming from Smith's arrest on May 15, 2003. Smith was also arrested on February 25, 2004, subsequent to his arrest for the instant offense and while under the supervision of U.S. Pretrial Services, and charges of criminal possession of marijuana in the first and second degree, possession of a forged instrument in the first degree, and criminal possession of a weapon in the second degree are currently pending in Manhattan Criminal Court, New York, New York.

  Smith stated that from 1993 until March, 2004, he smoked marijuana daily, and he has attended substance abuse treatment programs from September to December 2003 and from March 3, 2004 to the present. He further related that he consumes alcohol in moderation.

  The Offense

  On May 26, 2003, officers of the New York Police Department pulled over a 1992 Acura (the "vehicle") after witnessing a traffic violation in Bronx, New York. A police officer approached the vehicle on the driver's side, where Smith was seated, and when Smith rolled down the car window, the officers smelled the strong odor of marijuana emanating from the vehicle. During a subsequent pat-down of Smith and the other occupant of the vehicle, Mohammed Alnohme ("Alnohme"), a police officer detected a firearm in Alnohme's waistband Both Smith and Alnohme were placed under arrest. Officers then searched both individuals, and during the search of Alnohme they recovered a switchblade and 28 bags containing a substance believed to be marijuana. During a search of the vehicle, police officers recovered two large bags containing a total of approximately one pound of marijuana. Smith subsequently admitted to police officers that he was planning to purchase marijuana from Alnohme before driving to Pennsylvania.

  Smith was re-arrested by federal authorities on June 23, 2003 and was charged with the instant offense in an indictment filed on September 22, 2003. He allocuted as guilty to the sole charge of the indictment on March 23, 2004 in accordance with a plea agreement.

  The Guidelines

  The November 1, 2003 edition of the United States Sentencing Commission Guidelines Manual has been utilized in this case for calculation purposes.

  The guideline for a violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(D), and 846 is found in U.S.S.G. § 2D1.1. As the offense conduct involved a conspiracy to distribute and possess with intent to distribute between 250 grams and 1 kilogram of marijuana, the Drug Quantity Table under U.S.S.G. § 2D1.1(c)(16) sets a base offense level of 8.

  Based on Smith's plea allocution and his recognition of responsibility for the offense, the offense level is reduced by two levels pursuant to U.S.S.G. § 3E1.1(a).

  The resulting adjusted offense level is 6.

  Based upon Smith's sole criminal conviction, described above, and pursuant to U.S.S.G. §§ 4A1.2(e)(2) and 4A1.1(c), Smith has one criminal history point, which results in a Criminal History Category of I.

  Based on these calculations, the guideline range for imprisonment is zero to six months. The statutory maximum term of imprisonment is five years, pursuant to 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(D), and 846.

  A term of supervised release of at least two years is required if a sentence of imprisonment is imposed, pursuant to 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(D), and 846. The guideline range for a term of supervised release is at least two years but not more than three years, pursuant to U.S.S.G. § 5D1.2(a)(2). If a sentence of imprisonment of one year or less is imposed, a term of supervised release is not required but is optional, pursuant to U.S.S.G. § 5D1.1(b). Supervised release is required if a term of imprisonment of more than one year is imposed or when required by statute, pursuant to U.S.S.G. § 5D1.1(a).

  Smith 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). Under the guidelines, Smith is eligible for probation because the applicable guideline range is in Zone A of the Sentencing Table, pursuant to U.S.S.G § 5B1.1(a)(1). If probation is imposed, the term must be at least one year but not more than five years because the offense level for the instant offense level is 6, pursuant to U.S.S.G. § 5B1.2(a)(1).

  The statutory maximum fine is $250,000, pursuant to 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(D), and 846. The guideline fine range for the instant offense is from $500 to $5,000, pursuant to U.S.S.G. §§ 5E1.2(c)(3)(A) and 5E1.2(c)(4).

  Subject to Smith'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 $1,931.97 to be used for imprisonment, a monthly cost of $292.21 for supervision, and a monthly cost of $1,590.66 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).

  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 U.S.S.G. § 5F1.6, any individual convicted of distribution or possession of a controlled substance may be denied eligibility for certain federal benefits. The Sentence

  For the instant offense, Smith is sentenced to five years' probation. A special assessment fee of $100 payable to the United States is mandatory and due immediately. As Smith lacks any financial resources and in consideration of the factors listed in 18 U.S.C. § 3572, no fine is imposed.

  As mandatory conditions of probation, Smith shall (1) abide by the standard conditions of supervision (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 the immigration authorities.

  The mandatory drug testing condition is suspended due to imposition of a special condition requiring drug treatment and testing. Smith will participate in a program approved by the United States Probation Office, which program may include testing to determine whether Smith 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. Smith 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. Smith shall be supervised by the district of residence.

  This sentence is subject to modification at the sentencing hearing now set for June 17, 2004.

  It is so ordered.


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