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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 ...

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