United States District Court, S.D. New York
December 6, 2004.
UNITED STATES OF AMERICA,
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
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 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
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
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
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.
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
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
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
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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