United States District Court, S.D. New York
November 18, 2004.
UNITED STATES OF AMERICA,
PHILLIP SPEARMAN, Defendant.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
On June 23, 2004, defendant Phillip Spearman ("Spearman")
pleaded guilty to one count of possession with intent to
distribute a controlled substance, 21 U.S.C.A. §§ 812, 841(a),
(b)(1)(c), a Class C felony.
The Offense Conduct
In his plea allocution before Magistrate Judge Ellis, Spearman
admitted that in September 2003, he was involved in picking up
heroin from one individual in Manhattan and then delivering it to
another individual in the Bronx. (June 23, 2004 Transcript at
14.) Spearman stated that he was aware at the time of this
transaction that the person to whom the heroin was delivered was
planning to sell it. (Id.) According to the superseding
information, the amount of heroin possessed by Spearman was 1.5
grams. The Guidelines
The November 5, 2003 edition of the United States Sentencing
Commission Guidelines Manual (the "Guidelines") has been used
in this case for calculation purposes.
The guideline for possession of less than five grams of heroin
with intent to distribute is found in U.S.S.G. § 2D1.1(c)-(14),
which sets a base offense level of 12.
Acceptance of Responsibility
Based on Spearman's plea allocution, he has shown recognition
of responsibility for the offense. Pursuant to U.S.S.G. §
3E1.1(a), the offense is therefore reduced two levels from 12 to
Available information indicates that Spearman was represented
by counsel in all matters resulting in conviction.
On February 5, 1982, Spearman was arrested for allegedly
demanding a coat from a 14-year-old victim at knife-point. He was subsequently convicted in Bronx Supreme Court of second
On April 25, 1982, Spearman was arrested for possession of a
stolen stereo and tool kit. He subsequently plead guilty in Bronx
Supreme Court to criminal possession of stolen property in the
On April 13, 1985, Spearman was arrested for his alleged
participation in the burglary of a Bronx apartment. He
subsequently plead guilty in Bronx Supreme Court to attempted
burglary in the second degree.
On January 16, 1989, Spearman was arrested while sitting in the
driver's seat of an allegedly stolen car. He subsequently plead
guilty in Bronx Supreme Court to criminal possession of stolen
property in the third degree.
On March 18, 1989, Spearman was arrested for selling two vials
of crack cocaine in the Bronx. He subsequently plead guilty in
Bronx Supreme Court to criminal possession of a controlled
substance in the seventh degree.
On April 25, 1989, Spearman was arrested for allegedly damaging
a storefront in the Bronx. He subsequently plead guilty in Bronx
Supreme Court to criminal mischief in the fourth degree. On May 22, 1999, Spearman was arrested for selling crack
cocaine to an undercover police officer. He subsequently plead
guilty to criminal possession of a controlled substance in the
Based on certain of the convictions described above, and
pursuant to U.S.S.G. §§ 4A1.1(a), 4A1.1(c), 4A1.2(d)(1) and
4A1.2(e) (1) (3), Spearman has seven criminal history points,
which result in a Criminal History Category of IV.
Pursuant to 21 U.S.C. § 841(b)(1)(c), the maximum term of
imprisonment for the instant offense is twenty years. Based on a
total offense level of 10 and a Criminal History Category of IV,
the Guidelines range for imprisonment is 15 to 21 months.
Pursuant to 21 U.S.C. § 841(b)(1)(C), a term of at least three
years of supervised release is required if a sentence of
imprisonment is imposed for the instant offense. Pursuant to
U.S.S.G. § 5D1.2(a)(2) and 5D1.2(b), the range for a term of
supervised release for a Class C felony is at least two years but
no more than three years or the minimum required by statute,
whichever is greater. Pursuant to 18 U.S.C. § 3561(c)(1), Spearman is eligible for
not less than one or more than five years of probation. Pursuant
to 18 U.S.C. § 3563(a)(2), one of the following conditions must
be imposed as a condition of such probation unless extraordinary
conditions exist: a fine, restitution, or community service.
Pursuant to application note 2 of U.S.S.G. § 5B1.1, Spearman is
not eligible for probation because the applicable sentencing
guideline range is in Zone D of the Sentencing Table.
Pursuant to 21 U.S.C. § 841 (b) (1) (C), the maximum fine is
$1,000,000. Pursuant to U.S.S.G. § 5E1.2(c)(4), the fine range
for the instant offense is $2,000 to $1,000,000. A special
assessment of $100 is mandatory pursuant to 18 U.S.C. § 3013.
Subject to Spearman's ability to pay, the expected cost to the
government of any imprisonment, probation, or supervised release
shall be considered, 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.
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
In light of the foregoing and in consideration of the nature of
the offense, Spearman is sentenced to 15 months in prison, to be
followed by three years of supervised release. A special
assessment fee of $100 payable to United States is mandatory and
due immediately. As Spearman lacks any financial resources, no
fine is imposed.
Spearman was remanded after his guilty plea. Pursuant to
18 U.S.C. § 3143 (a) (2), he is not a candidate for voluntary
Spearman shall report to the nearest Probation Office within 72
hours of release from custody, and supervision will be in the
district of his residence. As mandatory conditions of supervised release, Spearman 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; 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. Spearman will participate in a program approved by the
United States Probation Office, which program may include testing
to determine whether Spearman has reverted to using drugs or
alcohol. The release of available drug treatment evaluations and
reports to the substance abuse treatment provider, as provided by
the Probation Officer, is hereby authorized. Spearman 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 November 30, 2004.
It is so ordered.
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