United States District Court, S.D. New York
November 18, 2004.
UNITED STATES OF AMERICA,
BERNARD WHEELER, Defendant.
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.
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
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 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
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
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.
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
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
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
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
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).
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.