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United States District Court, S.D. New York

February 4, 2005.


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


On November 27, 2001, Ramiro Rodriguez ("Rodriguez") was found guilty of one count of conspiracy to possess and distribute cocaine in violation of 21 U.S.C. §§ 841(b)(1)(A), 846, a Class A felony. Rodriguez is scheduled to be sentenced on February 4, 2005.

Prior Proceedings

  Rodriguez was arrested in the Bronx, New York on December 20, 2000. The Indictment, No. 00 Cr. 1251 (RWS), was filed on December 5, 2000, Count One of which charged Rodriguez and other defendants with conspiring to distribute and to possess with intent to distribute five kilograms and more of cocaine and one kilogram and more of heroin. On November 27, 2001, after a two-week trial, a jury found Rodriguez, Hector Penaranda, and Ramon Echivaria guilty of the narcotics conspiracy charged in Count One. Page 2

  A sentencing opinion concerning Rodriguez was signed on January 15, 2003. This sentencing opinion was amended on January 23, 2003 to correct errors in the calculation of Rodriguez' base level offense. A sentencing hearing was convened on February 11, 2003, but it was adjourned when Rodriguez disclosed that he wanted to discharge his CJA attorney.

  On February 13, 2003, CJA attorney Roy Kulcsar was discharged from representation of Rodriguez. The next day, CJA attorney John Jacobs ("Jacobs") was appointed to represent Rodriguez.

  On April 21, 2003, Rodriguez requested a Fatico hearing, and such hearing was held on May 19, 2003. In consideration of both the testimony heard at the Fatico hearing and letters received from both the government and the defendant, an order was signed on November 26, 2003 in which it was determined: (1) that Rodriguez' base offense level was 34, reflecting the amount of cocaine and heroin corresponding to the debts that he was convicted of helping to collect and (2) that pursuant to § 3B1.2(b) of the U.S. Sentencing Guidelines (the "Guidelines"), Rodriguez was not entitled to a reduction for a minor role in the conspiracy.

  On December 5, 2003, Rodriguez moved, pursuant to the applicable provisions of Fed.R.Crim.P. 12(b), for dismissal of Page 3 the Indictment for lack of subject matter jurisdiction. This motion was denied on January 20, 2004.

  On March 18, 2004, Jacobs' representation of Rodriguez was terminated pursuant to Rodriguez' request, and CJA attorney Jonathan Marks was subsequently appointed.

  Legal Framework

  In the two years since the original sentencing opinion was signed, the law of sentencing has undergone substantial change. As the Second Circuit has observed, "[t]he Supreme Court's decision in [United States v. Booker, 125 S. Ct. 738 (2005)] significantly altered the sentencing regime that has existed since the Guidelines became effective on November 1, 1987." United States v. Crosby, No. 03-1675, slip. op., at 12 (2d Cir. Feb. 2, 2005).

  In the first of two separate majority opinions, the Booker court held that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Booker, 125 S. Ct. at 756. Based on the foregoing, a second, different majority of the Justices held that the following two provisions must be severed and excised from the federal sentencing statute: 18 U.S.C. § 3553 (b)(1) (mandating Page 4 use of the Guidelines) and 18 U.S.C. § 3742(e) (setting forth standards of review on appeal). Booker, 125 S. Ct. at 764.

  In Crosby, the Second Circuit examined "the essential aspects of [Booker] that concern the selection of sentences." Id. at 24. The Crosby court stated:

First, the Guidelines are no longer mandatory. Second, the sentencing judge must consider the Guidelines and all of the other factors listed in [18 U.S.C. § 3553(a)]. Third, consideration of the Guidelines will normally require determination of the applicable Guidelines range, or at least identification of the arguably applicable ranges, and consideration of applicable policy statements. Fourth, the sentencing judge should decide, after considering the Guidelines and all other factors set forth in section 3553(a), whether (I) to impose the sentence that would have been imposed under the Guidelines . . . or (II) to impose a non-Guidelines sentence. Fifth, the sentencing judge is entitled to find all the facts appropriate for determining either a Guidelines sentence or a non-Guidelines sentence.*fn1
Id. at 24-25. The Crosby court also observed that pursuant to Booker, a sentencing judge would violate 18 U.S.C. § 3553(a) by "limiting consideration of the applicable Guidelines range to the facts found by the jury or admitted by the defendant, instead of considering the applicable Guidelines range, as required by Page 5 subsection 3553(a) (4), based on the facts found by the court." Id. at 28.

  Thus, in accordance with Booker and Crosby, a sentencing judge must consider the Guidelines and also the factors enumerated in 18 U.S.C. § 3553(a). Such factors include:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed [to satisfy certain articulated purposes] . . .;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for —
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . .;
(5) any pertinent policy statement . . . [issued by the Sentencing Commission];
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
The Defendant

  In accordance with 18 U.S.C. § 3553(a)(1), the history and characteristics of a defendant are to be considered in imposing a sentence. The following facts are derived from information provided by the U.S. Probation Office. Page 6

  Rodriguez was born on December 17, 1970. He is a citizen of Columbia, with a permanent residence in Bogota, Columbia. He is married, and he has at least one dependent in addition to his spouse.

  The Offense Conduct

  Patricia Lopez ("Lopez") and her partner Nelson Perez ("Perez") were drug dealers who sold multi-kilogram quantities of cocaine and heroin that were obtained from a Colombian source of supply. The drugs were smuggled into the United States by couriers in suitcases and wrapped in greased packages to thwart drug-sniffing dogs and in x-ray paper to avoid detection. Prior to engaging in drug trafficking themselves, Lopez and Perez transported money, the proceeds of drug trafficking, that was to be sent back to Colombia.

  Lopez and Perez obtained customers from Noel Espada ("Espada"). Espada introduced Lopez and Perez to James Hernandez a/k/a "Jason," a/k/a "Chuck," a/k/a "Chuckie," ("Hernandez") and Michael Villafane, a/k/a "Mike," ("Villafane") who were drug dealers, and who thereafter purchased drugs from Lopez and Perez.

  Another of Lopez's and Perez's customers was Hector Penaranda ("Penaranda"). Penaranda was a drug dealer who received at least 15 kilograms of cocaine and 200 grams of heroin for Page 7 distribution from Lopez and Perez. Penaranda paid for part of, but not all of, the drugs which he obtained from Lopez and Perez. As a result, he owed Lopez and Perez approximately $80,000.

  On October 29, 2000, Perez was shot and seriously wounded in a shoot-out at the apartment he shared with Lopez in the Bronx, New York. With Perez no longer available to help her, Lopez now had the sole responsibility of collecting the money owed to her and Perez by their customers. Lopez needed to collect this money in order to pay her Colombian drug suppliers. At the time that Perez was shot, he and Lopez were owed $300,000 by various customers, including Penaranda, Villafane and Hernandez, who owed them $50,000 for cocaine and heroin they had received.

  As a result of her inability to collect money owed to her, Lopez contacted her suppliers in Colombia and explained to them the reason she could not pay her debt to them. Consequently, the Colombian suppliers dispatched Rodriguez from Colombia to help collect the money that the Colombian suppliers were owed. Rodriguez arrived in Miami from Bogota, Colombia, and traveled to New York, within a week of Perez getting shot. Rodriguez then spent the next few weeks helping to collect payments with Lopez.

  Once in New York, Rodriguez obtained the assistance of Jose Parrado ("Parrado") to help collect the drug money that the Colombian suppliers were owed. Page 8

  The first customer Lopez approached about the debt owed was Penaranda. Lopez not only wanted Penaranda to pay his own $80,000 drug debt, but also needed his assistance in contacting some other customers of hers from Baltimore, Maryland, who owed her the most money, more than $200,000. Lopez had been introduced to these customers by Penaranda. Penaranda, in turn, recruited Ramon Echivaria ("Echivaria"), a friend of his, to help collect the money.

  Hernandez and Villafane had obtained more than a kilogram of heroin and more than five kilograms of cocaine from Lopez and Perez; a portion of which they wanted to return. On November 2, 2000, Hernandez and Villafane met with Espada in the Bronx, New York, to return part of the crack cocaine and heroin that they had not paid for, claiming that they could not sell it. Hernandez and Villafane, who owed $50,000 for the drugs, gave Espada a bag of approximately 300 grams of heroin. They were arrested by agents of the Drug Enforcement Administration and those drugs were seized.

  On November 14, 2000, Lopez attempted to contact Noel Espada to obtain the money that Hernandez and Villafane owed her for the narcotics recovered by law enforcement as discussed above. On that day, Lopez, assisted by Ramirez, Penaranda and Parrado, went to the house of a relative of Espada and asked the relative to give Espada a pager number at which Lopez could be reached. Page 9

  On November 15, 2000, Espada paged the pager number left by Lopez and spoke to her during a monitored phone conversation. During this conversation, Lopez said that she needed to meet with Espada because he told her that he had collected money that she was owed by Hernandez and Villafane. Espada and Lopez made arrangements to meet in Manhattan on November 16, 2000, but Lopez did not show up for that meeting.

  On November 20, 2000, Espada paged Lopez again. Law enforcement agents monitored the phone call. After Lopez answered the phone, which was a cell phone, she made arrangements to meet at a McDonald's in the Bronx, New York, so that Espada could give her the money owed to her from the lost narcotics. Thereafter, Penaranda, Rodriguez, Echivaria and Parrado proceeded to McDonald's with Lopez.

  According to their plan, Echivaria and Rodriguez, who were in one car, would meet with Espada, and get the money, while Penaranda, Parrado and Lopez waited in Penaranda's van parked a little bit away. After arriving at the McDonald's, and after making a series of telephone calls between the defendants, Espada and law enforcement agents, all the defendants were placed under arrest. Page 10

  The Guidelines

  Offense Level

  Under the November 2001 Guidelines Manual, the guideline for violation of 21 U.S.C. §§ 841(b)(1)(A) and 846 is found in § 2D1.1. The defendant's criminal activity was conspiracy to possess and distribute cocaine and heroin. The offense level specified in the Drug Quantity Table under § 2D.1.1(c)(1) sets a base offense level of 34.

  Adjustment for Obstruction of Justice

  There is no information to suggest that the defendant impeded or obstructed justice at the time of his arrest or during the investigation or prosecution of the offense.

  Adjustment for Acceptance of Responsibility

  As the defendant was convicted following a trial by jury, it does not appear that he has accepted responsibility for his involvement in the offense. Page 11

  Adjusted Offense Level

  The defendant's adjusted offense level is 34 under the Guidelines.

  Criminal History Category

  Because the defendant has no known criminal convictions, he has zero criminal history points and a Criminal History Category of I.

  Applicable Guidelines Range

  The statutorily imposed minimum term of imprisonment is ten years, and the maximum is life imprisonment. See 21 U.S.C. §§ 841(b)(1)(A), 846. The Guidelines range for an offender with a base offense level of 34 and a Criminal History Category of I is 151 to 188 months.

  Supervised Release

  A term of at least five years supervised release is required when a sentence of imprisonment is imposed pursuant to 21 U.S.C. § 841(b)(1)(A). The guideline range for a term of supervised release is five years pursuant to § 5D1.2(b). Page 12

  The Sentence

  With due consideration of the Guidelines and all of the factors identified in 18 U.S.C. § 3553(a), Rodriguez is hereby sentenced to 151 months in prison, to be followed by five years of supervised release. He will also pay a mandatory special assessment of $100, pursuant to 18 U.S.C. § 3013.

  The following conditions of supervised release are mandatory: the defendant shall not (1) commit another federal, state or local crime; (2) illegally possess a controlled substance; (3) possess a firearm or destructive device; or (4) engage in unlawful use of a controlled substance. The defendant shall submit to one drug testing within fifteen (15) days of placement on probation or supervised release and at least two unscheduled drug tests thereafter, as directed by the probation officer.

  The defendant will be subjected to the standard conditions of supervision (1-13). In addition, the defendant shall comply with the directives of the Immigration and Naturalization Service and the Immigration laws. The defendant is to report to the nearest Probation Office within 72 hours of release from custody and is to be supervised by the district of residence. He is to pay the United States a special assessment of $100, due immediately. Page 13

  This sentence is subject to modification at the sentencing hearing now set for February 4, 2005.

  It is so ordered.

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