United States District Court, S.D. New York
February 4, 2005.
UNITED STATES OF AMERICA,
RAMIRO RODRIGUEZ, Defendant.
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 information
provided by the U.S. Probation Office.
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
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
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
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.
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
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
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.
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
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.
Adjusted Offense Level
The defendant's adjusted offense level is 34 under the
Criminal History Category
Because the defendant has no known criminal convictions, he has
zero criminal history points and a Criminal History Category of
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.
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).
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.
This sentence is subject to modification at the sentencing
hearing now set for February 4, 2005.
It is so ordered.