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United States District Court, S.D. New York

November 18, 2004.


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


On August 4, 2004, Defendant Bernard Wheeler ("Wheeler") appeared before the Honorable Michael H. Dolinger of this district and allocuted to the conduct charged in the sole count of the indictment, conspiracy in violation of 21 U.S.C. § 846 to distribute and possess with intent to distribute one kilogram and more of heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1) (A). Wheeler's plea was accepted on September 8, 2004. Wheeler will be sentenced to 120 months' imprisonment and five years' supervised release. A special assessment fee of $100 is mandatory and is due immediately.


  The undersigned, having reviewed the Presentence Investigation Report prepared by the United States Probation Office, relies on certain of the facts as set forth therein. The Offense Conduct

  The indictment filed in this action charges that from at least 1999 through May 2004, Wheeler, along with his nineteen co-defendants and others, were members of a criminal organization in the Bronx that controlled a three-block strip of Daly Avenue between East 179th Street and Bronx Park South (the "Daly Avenue Organization" or the "Organization"). According to the indictment, the Organization sold heroin all day and late into the night during the period identified in the indictment, conducting tens of thousands of hand-to-hand heroin transactions. The Organization operated out of several buildings, including 2105 Daly Avenue and 2114 Daly Avenue.

  Wheeler was a "worker" or "pitcher" for the Organization. Workers or pitchers for the Organization would be provided heroin on consignment by managers in the Organization, and would then sell the heroin to customers, paying the managers for the heroin as they were able to sell it. Workers and pitchers also acted as "steerers," directing customers on Daly Avenue to other workers or to managers to complete sales of heroin. According to the indictment, eleven of Wheeler's co-defendants also acted as workers or pitchers.

  According to the government, based on observations on the street as well as interviews, the Organization sold as much as 50 bundles of heroin a day, which amounts to approximately one kilogram per month, although the actual amount could vary from month to month.

  According to the Presentence Investigation Report, Wheeler was involved in the Organization from at least late April 2001 to May 2004,*fn1 in view of which period of involvement the government has estimated that he should be held accountable for between 10 and 30 kilograms of heroin.

  Wheeler was arrested on May 11, 2004.

  The Defendant

  Wheeler was born in Queens County, New York in 1963 and is divorced with three children.

  Wheeler has reported no assets, and there is a child support obligation as well as two judgments outstanding against him.

  Wheeler acknowledges having used illicit substances in the past, including marijuana, cocaine, crack cocaine and heroin. He reports having used heroin fairly regularly from 1987 until his arrest for the instant offense in May 2004.

  Wheeler has several prior criminal convictions. He was sentenced on March 21, 1984 to five years' probation after pleading guilty to attempted burglary in the third degree, and was subsequently resentenced to one year in custody as a result of violating the terms of his parole.

  On June 1, 1988 Wheeler pled guilty to an indictment charging him with criminal sale of a controlled substance in the fifth degree, for which he was sentenced to two to four years' imprisonment on July 5, 1988. Also on June 1, 1988, Wheeler pled guilty to a separate indictment charging him with attempted robbery in the second degree, during the commission of which offense Wheeler pistol-whipped and stabbed an individual from whom he had demanded money. For this second offense he was sentenced to two to four years' imprisonment, to run concurrent with the sentence imposed on the indictment for criminal sale of a controlled substance.

  On May 8, 1995, Wheeler pled guilty to criminal possession of a controlled substance in the fifth degree with intent to sell and was subsequently sentenced to three to six years' imprisonment. On April 27, 2001, Wheeler was arrested in front of 2105 Daly Avenue in the Bronx and subsequently pled guilty to criminal possession of a controlled substance in the seventh degree, for which he was sentenced to time served and the suspension of his driver's license. The underlying offense conduct involved the sale by Wheeler and another individual of a quantity of a controlled substance to an undercover officer inside of 2114 Daly Avenue.

  On September 15, 2002, Wheeler was arrested and subsequently pled guilty to criminal possession of a controlled substance in the seventh degree, for which he was again sentenced to time served and the suspension of his driver's license. Wheeler was arrested in connection with this offense in the vicinity of East 181st Street and Mohegan Avenue in the Bronx.

  On February 6, 2003, Wheeler was arrested in the vicinity of Hornaday Place and Mohegan Avenue in the Bronx and subsequently pled guilty to criminal possession of a controlled substance in the seventh degree, for which he was sentenced to sixty days' imprisonment or a fine.

  The Guidelines

  The November 5, 2003 edition of the United States Sentencing Commission, Guidelines Manual ("U.S.S.G.") has been used in this case for calculation purposes, in accordance with U.S.S.G. § 1B1.11(b)(1).

  The guideline for a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1) (A) and 846 is found in U.S.S.G. § 2D1.1(a) (3), which specifies that the base offense level is set in accordance with the Drug Quantity Table under U.S.S.G. § 2D1.1(c) (2). At his allocution, Wheeler indicated that he knowingly conspired with others to possess, with intent to distribute, one kilogram or more of heroin. The Presentence Investigation Report indicates that the amount for which the government estimates that Wheeler should be held accountable is between 10 and 30 kilograms of heroin. In light of this latter amount, and pursuant to the Drug Quantity Table, the base offense level is 36.*fn2

  Based on Wheeler's plea allocution, he has shown recognition of responsibility for the offense. Based on his timely notification of his intention to plead guilty and because the base offense level is greater than 16, the offense level is reduced by three levels pursuant to U.S.S.G. §§ 3E1.1 (a) and 3E1.1 (b). Disputed Adjustments

  1. An Upward Adjustment for Possession of a Firearm Will Be Applied

  At the time of his arrest, Wheeler was in possession of.38 caliber revolver as well as three boxes of .38 caliber ammunition. The government argues that Wheeler's base offense level should be adjusted upward by two levels pursuant to U.S.S.G. § 2D1.1 (b) (1). Wheeler argues that this enhancement should not be applied, as he was arrested at someone else's apartment and the firearm in question was only being held for a friend. At the time of Wheeler's arrest approximately 11 bundles of heroin were seized from under the same bed from which the revolver in question was recovered. Wheeler asserts that upon the seizure of the heroin and recovery of the weapon, he told the agents that both the heroin and the revolver belonged to another individual, not a member of the Organization, and were being held for safe-keeping.

  The two-level enhancement set forth in § 2D1.1(b)(1) is to be applied "unless it is clearly improbable that the weapon was connected with the offense." U.S.S.G. § 2D1.1 comment. n. 3 ("For example, the enhancement should not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet."). Although Wheeler's three convictions for possession of a controlled substance which took place in or near the area of the Organization's operations never included charges of possession of a firearm, it is not clearly improbable that the weapon recovered was connected with the offense conduct. Accordingly, an upward enhancement will be applied consistent with § 2D1.1 (b) (1).

  2. No Downward Adjustment for Minor Role Will Be Applied

  Wheeler argues that he is entitled to a reduction in the adjusted offense level by virtue of his minor role in the Organization, pursuant to U.S.S.G. § 3B1.2 (b). Specifically, Wheeler contends that he was merely a drug addict at the bottom rung of the conspiracy and nothing more than a worker or pitcher. The government argues that Wheeler is not entitled to a minor-role adjustment, as such adjustments are only appropriate where a defender is "substantially less culpable than the average participant." U.S.S.G. § 3B1.2 comment. n. 3 (A).

  A defendant has the burden of proving by a preponderance of the evidence that he is entitled to a minor-role adjustment under § 3B1.2. See United States v. Yu, 285 F.3d 192, 200 (2d Cir. 2002); United States v. Castano, 234 F.3d 111, 113 (2d Cir. 2000); United States v. Colon, 220 F.3d 48, 51 (2d Cir. 2000). As the Second Circuit has explained, a minor-role reduction "`will not be available simply because the defendant played a lesser role than his co-conspirators; to be eligible for a reduction, the defendant's conduct must be `minor' . . . as compared to the average participant in such a crime." United States v. Carpenter, 252 F.3d 230, 234 (2d Cir. 2001) (quoting United States v. Rahman, 189 F.3d 88, 159 (2d Cir. 1999)); accord Yu, 285 F.3d at 200. The district court's analysis of the defendant's role in criminal activity is, accordingly, "`highly fact-specific and depends upon the nature of the defendant's relationship to other participants, the importance of the defendant's actions to the success of the venture, and the defendant's awareness of the nature and scope of the criminal enterprise.'" Carpenter, 252 F.3d at 234 (quoting United States v. Shonubi, 998 F.2d 84, 90 (2d Cir. 1993)).

  Wheeler has not contested the determination in the Presentence Investigation Report that his arrests in 2001, 2002 and 2003 were part of the instant offense conduct, underscoring his long-term participation in the Organization. He has also not established facts demonstrating that he was "substantially less culpable" than most of his co-defendants. Indeed, the majority of the participants in the Organization are charged with serving the same function as Wheeler in the Organization, i.e., acting as a worker or pitcher and also as a steerer. As the Second Circuit explained in United States v. Colon, 884 F.2d 1550 (2d Cir. 1989), even steerers, who handle neither drugs nor money, "play an important role in street-level drug transactions. . . ." Colon, 884 F.2d at 1552 (concluding that the defendant was not eligible for a minimal-role adjustment). At his allocution, Wheeler specifically admitted selling heroin with one of his co-conspirators on March 18, 2004, thus acknowledging that he acted as more than a simple steerer. In light of the foregoing, Wheeler has not demonstrated that he qualifies for a minor-role reduction of his offense level.

  Remaining Calculations

  The adjusted offense level resulting from the foregoing calculations and discussion is 35.

  The statutory minimum term of imprisonment for the sole count of the indictment is ten years and the maximum term is life, pursuant to 21 U.S.C. §§ 841(a)(1), 841(b)(1) (A) and 846.

  Pursuant to U.S.S.G. § 4B1.1,

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1. As Wheeler was more than eighteen years of age at the time of the instant controlled substance offense and has two prior controlled substance convictions not arising out of the instant offense conduct as well as one prior conviction for a crime of violence involving his 1988 conviction for attempted robbery in the second degree, he is a career offender within the meaning of U.S.S.G. § 4B1.1(a).

  Where the offense level for a career offender calculated pursuant to the table under U.S.S.G. § 4B1.1(b) is greater than the offense level otherwise applicable, the offense level from the table shall apply. In accordance with that table, since the Offense Statutory Maximum for Wheeler's offense is life, the offense level determined under § 4B1.1(b) is 34, after a three-level adjustment for Wheeler's acceptance of responsibility. As this offense level is less than the adjusted offense level of 35, calculated above, the applicable offense level is 35 and the offense level from the table in subsection (b) does not apply.

  Subsection (b) also provides that "[a] career offender's criminal history category in every case under this subsection shall be Category VI." U.S.S.G. § 4B1.1(b). Pursuant to § 4B1.1(b), Wheeler's Criminal History Category is elevated to VI. See, e.g., United States v. Marseille, 377 F.3d 1249, 1252-53 (11th Cir. 2004) (applying the Criminal History Category enhancement where the offense level set forth in the table under § 4B1.1(b) was lower than the offense level otherwise calculated and, thus, inapplicable), petition for cert. filed, — U.S.L.W. — (U.S. Oct. 19, 2004) (No. 04-6961); but see United States v. Winbush, 264 F. Supp. 2d 1013, 1016 n. 5 (N.D. Fla. 2003) (noting that the Criminal History Category enhancement set forth in § 4B1.1(b) applies, by its terms, only to those cases "under this subsection" and concluding that a defendant whose offense level exceeded the offense level otherwise applicable under subsection (b) was not being sentenced "under this subsection," and, therefore, that the Criminal History Category enhancement was inapplicable).

  Based on the offense level of 35 and a Criminal History Category of VI, the guideline range for imprisonment is 292 to 365 months.

  Pursuant to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846, the minimum term of supervised release is five years and the maximum term is life. The authorized term for supervised release under the guidelines is five years, pursuant to U.S.S.G. § 5D1.2 (b).

  Wheeler is not eligible for probation because the instant offense is a Class A felony, pursuant to 18 U.S.C. § 3561(a)(1), and because the applicable guideline range is in Zone D of the Sentencing Table, pursuant to U.S.S.G. § 5B1.1, comment. n. 2.

  The statutory maximum fine is $4 million, pursuant to 21 U.S.C. §§ 841(a) (1), 841(b)(1)(A) and 846. The fine range for the instant offense under the guidelines is from $20,000 to $4 million, pursuant to U.S.S.G. §§ 5E1.2 (c) (3) (A) and 5E1.2 (c) (4). Subject to Wheeler'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 U.S.S.G. § 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)(C), upon a third or subsequent conviction for distribution of a controlled substance, a defendant may be permanently declared ineligible for any or all federal benefits, as determined by the court. Pursuant to U.S.S.G. § 5F1.6, eligibility for certain federal benefits may be denied to any defendant convicted of distribution or possession of a controlled substance. Federal benefit is defined to mean "`any grant, contract, loan, professional license, or commercial license provided by an agency of the United States or by appropriated funds of the United States' but `does not include any retirement, welfare, Social Security, health, disability, veterans benefit, public housing, or other similar benefit, or any other benefit for which payments or services are required for eligibility.'" U.S.S.G. § 5F1.6 comment. n. 1 (quoting 21 U.S.C. § 862(d)).

  Wheeler's Application for a Downward Departure Is Granted

  Wheeler argues that he should receive the mandatory statutory minimum term of ten years because his prior criminal convictions are interrelated with his long history of drug addiction and because the convictions relied upon in concluding that Wheeler is a career offender pursuant to U.S.S.G. § 4B1.1(a) are remote, and, as such, are given too much weight in the criminal history calculation, thus over-representing the seriousness of Wheeler's prior criminal history. Wheeler seeks either a horizontal downward departure from Criminal History Category VI or a vertical departure in the offense level, or both. Pursuant to U.S.S.G. § 4A1.3(b)(1),

If reliable information indicates that the defendant's criminal history category substantially over-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes, a downward departure may be warranted.
U.S.S.G. § 4A1.3(b)(1). A downward departure under this Section may be appropriate "if, for example, the defendant had two minor misdemeanor convictions close to ten years prior to the instant offense and no other evidence of prior criminal behavior in the intervening period." U.S.S.G. § 4A1.3 comment. n. 3; see also United States v. Carrasco, 313 F.3d 750, 757 (2d Cir. 2002) ("This type of departure [pursuant to § 4A1.3] is most frequently used when a series of minor offenses, often committed many years before the instant offense, results in a [Criminal History Category] that overstates the seriousness of the defendant's prior record.") Factors to consider in granting a downward departure under § 4A1.3 may include "the amount of drugs involved in [the defendant's] prior offenses, his role in those offenses, the sentences previously imposed, and the amount of time previously served compared to the sentencing range called for by placement in [Criminal History Category] VI." United States v. Mishoe, 241 F.3d 214, 219 (2d Cir. 2001).

  Horizontal downward departures under § 4A1.3 are limited in their extent, as they may not exceed one criminal history category for any defendant deemed a career offender pursuant to U.S.S.G. § 4B1.1. See U.S.S.G. § 4A1.3(b)(3)(A). Under the circumstances present here, however, the Second Circuit has authorized vertical downward departures under U.S.S.G. § 5K2.0(b). See, e.g., United States v. Rivers, 50 F.3d 1126, 1131 (2d Cir. 1995) (noting that "in the case of a defendant whose offense level is raised by his criminal history into career offender status, [the district court's] discretion may be exercised, to the extent thought appropriate, to reduce either the criminal history category or the offense level, or both" where the sentence called for by the guidelines over-represents the seriousness of the defendant's prior criminal history); see also Mishoe, 241 F.3d at 220 ("In some circumstances, a large disparity in that relationship [between the punishment prescribed by Criminal History Category VI and the degree of punishment imposed for prior offenses] might indicate that the career offender sentence provides a deterrent effect so in excess of what is required in light of the prior sentences and especially the time served on those sentences as to constitute a mitigating circumstance present `to a degree' not adequately considered by the Commission.") (citing 18 U.S.C. § 3553(b)).

  As Wheeler acknowledges, the fact that his prior criminal convictions may have been influenced by or the result of his addiction to heroin and other drugs does not provide a sufficient basis for departure. "Drug or alcohol dependence or abuse is not a reason for a downward departure." U.S.S.G. § 5H1.4; see also U.S.S.G. § 5K2.0(d)(1) (prohibiting departures based on drug or alcohol dependence or abuse); accord United States v. Payton, 159 F.3d 49, 61 (2d Cir. 1998). He argues, nonetheless, that this prohibition does not affect a sentencing court's authority to factor in the remoteness of a defendant's convictions in determining whether he ought to be classified as a career offender.

  The three prior convictions that constitute the basis for Wheeler's career offender designation occurred in 1988 and 1995, as set forth above. The 1988 controlled substance offense involved the sale of 8.3 grains of cocaine. The 1995 controlled substance offense involved the possession of an unspecified amount of marijuana with intent to sell. Wheeler served a term of two years on each of the 1988 convictions and a term of three years on the 1995 conviction. In view of the quantities involved in the earlier offenses, the significant disparity between the sentences imposed and time served with regard to these earlier convictions and the sentence dictated here by the career offender guideline, the Criminal History Category that would have applied were it not for the career offender designation,*fn3 and the remoteness in time of two of Wheeler's three prior convictions, a downward departure is warranted here, consisting of a horizontal downward departure from Criminal History Category VI to Criminal History Category V and a vertical departure of 8 offense levels, resulting in an offense level of 27.

  Use of Criminal History Category V and an offense level of 27 in sentencing will establish a more appropriate relationship between Wheeler's sentence for the instant offense and the time served for his prior convictions, while continuing to achieve the deterrent effect that is the goal of a career offender classification and adequately addressing the concerns regarding recidivism that are reflected in that classification scheme. See Mishoe, 241 F.3d at 220 ("Obviously, a major reason for imposing an especially long sentence upon those who have committed prior offenses is to achieve a deterrent effect that the prior punishments failed to achieve. That reason requires an appropriate relationship between the sentence for the current offense and the sentences, particularly the times served, for the prior offenses."). Based on the adjusted offense level of 27 and a Criminal History Category of V, the guideline range for imprisonment is 120 to 150 months. This sentencing range represents a term of imprisonment three to five times greater than that served by Wheeler on each of his three prior convictions, an appropriate magnitude of difference. Cf. id. (noting that a defendant who had twice served five- or six-year terms and thereafter committed another serious offense might be adequately deterred by a sentence of fifteen or twenty years).

  The Sentence

  For the instant offense, Wheeler is sentenced to 120 months' imprisonment and five years' supervised release. As Wheeler has been detained without bail since his arrest, he is not a candidate for voluntary surrender pursuant to 18 U.S.C. § 3143(a)(2).

  A special assessment fee of $100 payable to the United States is mandatory and due immediately. Because Wheeler lacks financial resources and in consideration of the factors listed in 18 U.S.C. § 3572, no fine is imposed.

  As mandatory conditions of supervised release, Wheeler 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; and (4) not possess a firearm or destructive device.

  The mandatory drug testing condition is suspended due to imposition of a special condition requiring drug treatment and testing. Wheeler shall participate in a program approved by the United States Probation Office, which program may include testing to determine whether he has reverted to using drugs or alcohol. The release of available drug testing evaluations and reports to the substance abuse treatment provider, as approved by the Probation Officer, is hereby authorized. Wheeler is 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.

  Wheeler shall report to the nearest Probation Office within 72 hours of release from custody and shall be supervised by the district of residence.

  This sentence is subject to modification at the sentencing hearing now set for November 18, 2004.

  It is so ordered.

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