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U.S. v. WHEELER

November 18, 2004.

UNITED STATES OF AMERICA,
v.
BERNARD WHEELER, Defendant.



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

SENTENCING OPINION

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.

Background

  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 ...


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