The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
AMENDED SENTENCING OPINION
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,
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
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
On December 5, 2003, Rodriguez moved, pursuant to the
applicable provisions of Fed.R.Crim.P. 12(b), for dismissal of
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.
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)
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
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
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
(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
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 ...