The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
MEMORANDUM OPINION and ORDER
On March 9, 2004, defendant pleaded guilty to the one-count
indictment which charged her with conspiracy to distribute and
possess with intent to distribute one kilogram and more of heroin
(18 U.S.C. §§ 812, 841 (a) (1), 841 (b) (1) (A) and 846). The
Probation Department has submitted a detailed Presentence Report
concluding that the defendant should be sentenced at an offense
level 34, Criminal History Category I, creating a range of from
151 to 188 months. This report and conclusion satisfies neither
The defense contends:
(1) That I should adjourn the sentence because of
Blakely v. Washington, 124 S.Ct. 2531 (2004),
and wait for the Supreme Court to decide United States
v. Booker and United States v. Fanfan;
(2) That the defendant should not be found to be a
manager or supervisor of the conspiracy (U.S.S.G.
(3) That the defendant is eligible for "safety valve"
treatment (§ 5C1.2 of the U.S.S.G.); and (4) That the defendant is entitled to a downward
departure because of "extraordinary family
circumstances" (§ 5H1.6 of the U.S.S.G.).
The Government also disagrees with the Probation Report and
wants the defendant to be sentenced at a level 37 with a
guideline range of 210 to 262 months, thereby denying a
three-level reduction for acceptance of responsibility.
As to the application to adjourn the sentence, the motion is
denied. United States v. Mincey, 380 F.3d 102 (2d Cir. 2004).
It was pointed out at the Fatico hearing on December 22, 2004
that it was the Court's intention to proceed with the sentence at
this time. Delaying sentences because of Blakely v. Washington,
124 S.Ct 2531 (2004), and awaiting rulings in Booker and
Fanfan, would cause a tremendous backlog in the criminal
calendars of federal courts. (Tr. 6).*fn1
It is the Court's conclusion that the defendant does qualify as
a manager or supervisor under § 3.1.1 of the U.S.S.G. She did
exercise some control over other people involved in the criminal
activity. She recruited Edinson Largo-Hoyas, scheduled his trips
to Florida to pick-up drugs and provided his travel funds and
tickets, among other activity, which stamped her as a manager or
supervisor. A reading of the transcript of the December 22, 2004
hearing clearly discloses that the defendant gave Mr. Largo-Hoyas instructions and that she was responsible for the timing, route
and scheduling of his trips. (Tr. 22, 27, 28). The three-level
enhancement suggested by the Probation Department, at paragraph
25 of the Presentence Report, is entirely appropriate. Moreover,
in paragraph 25 of the Presentence Report, Probation correctly
decided that there were some six participants in the conspiracy
and the defendant interposed no objection to this latter finding.
The defendant is not eligible for "safety valve" treatment
under § 5C1.2 of the U.S.S.G. She fails to satisfy two of the
five criteria required for such treatment. As pointed-out above,
she was a manager and supervisor in the criminal activity here
and the criminal enterprise in which she was involved was a
continuing one. At one "safety valve" proffer, the defendant
indicated "that she was involved in seven drug deliveries from
Florida." (Government Letter, January 6, 2005). At the hearing,
Mr. Largo-Hoyas testified as to several drug-related trips to
Florida. Moreover, a fair reading of the Government submissions
discloses that she failed to make full and truthful disclosures
at her proffer sessions.
The defendant is not entitled to a downward departure because
of "extraordinary family circumstances." (5H1.6 of the U.S.S.G.).
The Court is well aware of its authority to depart downwardly
from the sentencing guidelines if the case is one that is
"exceptional" or "out of the heartland." Koon v. United States,
518 U.S. 81 (1996). There is nothing exceptional about the defendant's family circumstances in this case. As is pointed-out
in 5H1.6, the applicable Guideline Section, "family ties and
responsibilities are not ordinarily relevant in determining
whether a departure may be warranted."
The Second Circuit has repeatedly pointed-out:
"[d]isruption of the defendant's life, and the
concomitant difficulties for those who depend on the
defendant, are inherent in the punishment of
incarceration." United States v. Johnson,
964 F.2d 124, 128 (2d Cir. 1992); accord United States v.
Galante, 111 F.3d 1029, 1034 (2d Cir. 1997); see
also United States v. Londono, 76 F.3d 33, 36 (2d
Cir. 1996) ("[i]ncarceration inevitably impacts on
family life and family members.")."
Here, we have a 40-year old single-mother, who has an infant
child to whom she gave birth while in detention on the instant
charge. She also has a 15-year old son, who is with grandparents
in Colombia, the defendant's country of origin. As of this
writing, the infant is with the defendant's sister and the
15-year old is, as noted, with the grandparents. Any
incarceration of this defendant is a veritable train wreck for
the children and this is something that does deeply trouble the
Court but, from a reading of the Presentence Report, the
voluminous submissions of counsel and the full evidentiary
hearing on December 22, 2004, it is clear that the defendant was
engaged in a conspiracy to distribute at least three and probably
about ten kilograms of heroin. Nothing in this record concerning
the defendant or her children takes the case "out of the
heartland." It is a tragedy caused by the defendant.
The application for a downward departure is denied. Finally, as to the Government's application to deny the
three-level reduction in offense level because defendant has not
"clearly demonstrated acceptance of responsibility for her
offense," (page 2, January 6, 2005 Government Letter), the
application is denied. She may not have completely articulated
her full involvement in the conspiracy at the proffer sessions,
but she did plead guilty to the exact charge in the indictment
and saved the Government the costs of a trial. (Transcript of
guilty plea, March 9, 2004, page 12).
As I tried to make clear at the sentencing hearing on December
22, 2004, (Tr. 7), a range of 151 months (12 years, 7 months) to
188 months (15 years, 8 months), is more than adequate scope for
punishment in the instant case. Sentencing to more would be
"taking blood from a stone." The defendant is, after all, a first
In any event, both sides have a right to appeal my ruling and
the sentence that I will impose on ...