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United States District Court, S.D. New York

December 6, 2004.

ABEL PEREZ, Defendant.

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


On September 29, 2004, defendant Abel Perez ("Perez") pleaded guilty before the Honorable Gabriel W. Gorenstein, United States Magistrate Judge, to the charge that he conspired to distribute ketamine in violation of 21 U.S.C. §§ 846 and 841(a)(1) (a Class D felony).

The Offense Conduct

  In his plea allocution, Perez admitted that in furtherance of a conspiracy to distribute ketamine, he drove a shipment of approximately 1,100 vials of ketamine from California to New Jersey in March 2003.

  The Guidelines

  The Probation Office of the United States District Court for the Southern District of New York has proposed using the November 1, 2004 edition of the United States Sentencing Commission Guidelines Manual (the "Guidelines") for calculation purposes. The parties have not objected to this proposal.

  Offense Level

  The applicable guideline for violations of 21 U.S.C. §§ 846 and 841(a)(1) is found in § 2D1.1. Pursuant to § 2D1.1(a)(3), the base offense level is determined by the quantity of the controlled substance involved in the offense. The instant offense involved a conspiracy to distribute 60,000 units of ketamine, a schedule III substance. Accordingly, § 2D1.1(c)(10) applies and provides for a base offense level of 20.

  Based on his allocution before the Court, Perez has shown recognition of responsibility for the offense. Furthermore, Perez' timely notification of his intention to plead guilty allowed the government to allocate its resources more efficiently. Based on these factors, the offense level is reduced three levels. See § 3E1.1(a), (b).

  Based on the foregoing, the total offense level is 17. Criminal History

  Available information indicates that Perez was represented by counsel in all matters resulting in conviction, unless otherwise indicated.

  On May 15, 2003, Perez was arrested for his role in an alleged conspiracy to import ecstasy. He was subsequently convicted by the United States District Court for the Central District of California (Ind. No. 03-00107) of conspiracy to import ecstacy. Perez is scheduled to be sentenced on December 8, 2004 for that offense, which has a stipulated sentencing range of between 70 to 87 months.

  Based on the above-described criminal conduct and pursuant to §§ 4A1.1(a) and 4A1.2(e)(1) of the Guidelines, Perez has three criminal history points, which results in a criminal history category of II.

  Sentencing Options

  Pursuant to 21 U.S.C. §§ 841(a)(1), 841 (b)(1)(D), and 846, the maximum term of imprisonment is five years. Based on a total offense level of 17 and a criminal history category of II, the Guideline range for imprisonment is 27 to 33 months. Pursuant to § 5G1.3(c), the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the undischarged term of imprisonment (i.e., the sentence resulting from Perez' conviction in the United States District Court for the Central District of California).

  Pursuant to 21 U.S.C. §§ 841(a)(1), 841 (b)(1)(D), and 846, a term of at least two years of supervised release is required if a sentence of imprisonment is imposed, and a lifetime term of supervised release may be imposed. Pursuant to § 5D1.2(a)(2), the Guideline range for the term of supervised release for a Class D felony is at least two years but no more than three years. Pursuant to § 5D1.1(a), supervised release is required if the Court imposes a term of imprisonment of more than one year or when required by statute.

  Pursuant to 18 U.S.C. § 3561(c)(1), Perez is eligible for not less than one or more than five years probation. Pursuant to 18 U.S.C. § 3563(a)(2), because the offense is a felony, one of the following must be imposed as a condition of probation unless extraordinary circumstances exist: a fine, restitution, or community service. Pursuant to application note number two of § 5B1.1, because the applicable Guideline range is in Zone D of the Sentencing Table, Perez is not eligible for probation.

  Pursuant to 21 U.S.C. §§ 841(a)(1), 841 (b)(1)(D), and 846, the maximum fine is $250,000. Pursuant to 18 U.S.C. § 3013, a special assessment of $100 is necessary. Pursuant to §§ 5E1.2(c)(3)(A) and 5E1.2(c)(4), the fine range for the instant offense is $5,000 to $50,000.

  Pursuant to 21 U.S.C. § 862(a)(1)(B), upon a second conviction for distribution of a controlled substance, a defendant may be declared ineligible for any or all federal benefits for up to ten years after such conviction, as determined by the Court. Pursuant to § 5F1.6 of the Guidelines, the Court may deny eligibility, in accordance with 21 U.S.C. § 862, for certain federal benefits of any individual convicted of distribution or possession of a controlled substance.

  Pursuant to the Violent Crime Control and Law Enforcement Act of 1994, for offenses committed after September 13, 1994, the Court shall require that all offenders on probation, parole, or supervised release 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 offenses, Perez is hereby sentenced to 27 months of incarceration. This term of incarceration will run concurrently with the undischarged term of incarceration to be imposed by the United States District Court for the Central District of California (Indictment Number 03-00107). Furthermore, Perez is hereby recommended for consideration for participation in the Bureau of Prisons' 500-hour Residential Drug Abuse Program.

  Given the nature of the instant offense and the nature of the offense in the Central District of California, Perez is hereby sentenced to three years of supervised release. As Perez was in possession of and participated in the shipment of ketamine and ecstacy, a special condition of his supervised release shall be that the probation department is permitted to search his person, residence, place of business, vehicle, or any other premises under his control to ensure that Perez does not possess any controlled substances. Any such search must be conducted at a reasonable time and in a reasonable manner. Failure to submit to a search may be grounds for revocation. Perez shall inform any other residents of all such above-described premises that such premises may be subject to search pursuant to this provision. Since Perez appears to be at risk of future substance abuse, appropriate drug aftercare is also imposed as a special condition of his supervised release. Such aftercare may include testing to determine whether Perez has reverted to using drugs or alcohol. The Court hereby authorizes the release of available drug treatment evaluations and reports to the substance abuse treatment provider, as approved by the Probation Officer. Perez will be required to contribute to the costs of services rendered (co-payment), in an amount determined by the Probation Officer based on Perez' ability to pay or the availability of third-party payment.

  Furthermore, the following mandatory conditions apply to the supervised release: (1) Perez shall not commit another federal, state, or local crime; (2) Perez shall not illegally possess a controlled substance; (3) Perez shall not possess a firearm or destructive device. However, the mandatory drug testing condition is suspended due to the imposition of the above-described special condition requiring drug treatment and testing. Furthermore, the standard conditions of supervision (1-13) are also hereby imposed.

  Perez shall report to the nearest Probation Office within 72 hours of release from custody. It is recommended that during the period of Perez' supervise release, he be supervised by the district of residence. Perez shall pay to the United States a special assessment of $100, which shall be due immediately. However, since Perez does not have the ability to pay, no fine shall be imposed.

  Perez is a good candidate for voluntary surrender. He has kept all court appearances and has complied with all terms and conditions of his pretrial release. Furthermore, he is not regarded as a flight risk or a danger to the community. Perez is therefore directed to voluntarily surrender within thirty (30) days of imposition of this sentence to either (1) a facility designated by the Bureau of Prisons or (2) the U.S. Marshals.

  This Sentence is subject to modification at the sentencing hearing set for December 6, 2004.

  It is so ordered.


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