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U.S. v. SPEARMAN

United States District Court, S.D. New York


November 18, 2004.

UNITED STATES OF AMERICA,
v.
PHILLIP SPEARMAN, Defendant.

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

SENTENCING OPINION

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.

  Offense Level

  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 10.

  Criminal History

  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 degree robbery.

  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 third degree.

  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 seventh degree.

  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.

  Sentencing Options

  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 3583(d).

  The Sentence

  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 surrender.

  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.

20041118

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