United States District Court, S.D. New York
February 7, 2005.
UNITED STATES OF AMERICA,
NORAELENA OCHOA-SUAREZ, Defendant.
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.
It concluded that, under the Sentencing Guidelines, 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 satisfied neither side. Initially, I filed
an opinion on January 11, 2005 which I set aside because of the
Supreme Court decision in United States v. Booker and United
States v. Fanfan on January 12, 2005. (U.S., 125 S.Ct 738).
The defense contends:
(1) That the defendant should not be found to be a manager or
supervisor of the conspiracy (U.S.S.G. § 3B1.1);
(2) That the defendant is eligible for "safety valve" treatment
(18 U.S.C. § 3553 (f) and § 5C1.2 of the U.S.S.G.); and
(3) That the defendant is entitled to a downward departure
because of "extraordinary family circumstances" (§ 5H1.6 of the
The Government still 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 any
three-level reduction for acceptance of responsibility.
In Booker, supra, the Supreme Court directed that in
sentencing, I consider 18 U.S.C. § 3553 (a) and that we district
judges be "reasonable" in imposing sentence. Just last week in
United States v. Crosby, No. 03-1657 (2d Cr. Feb. 2, 2005),
Judge Newman wrote:
"First, the Guidelines are no longer mandatory.
Second, the sentencing judge must consider the
Guidelines and all of the other factors listed in
section 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 the other factors
set forth in section 3553 (a), whether (I) to impose
the sentence that would have been imposed under the
Guidelines, i.e., a sentence within the applicable
Guidelines range or within permissible departure
authority, or (ii) to impose a non-Guidelines
sentence. Fifth, the sentencing judge is entitled to
find all the facts appropriate for determining
whether a Guidelines sentence or a non-Guidelines
These principles change the Guidelines from being
mandatory to being advisory, but it is important to
bear in mind that Booker/Fanfan and section 3553
(a) do more than render the Guidelines a body of
casual advice, to be consulted or
overlooked at the whim of a sentencing judge. Thus,
it would be a mistake to think that, after
Booker/Fanfan, district judges may return to the
sentencing regime that existed before 1987 and
exercise unfettered discretion to select any sentence
within the applicable statutory maximum and minimum.
On the contrary, the Supreme Court expects sentencing
judges faithfully to discharge their statutory
obligation to "consider" the Guidelines and all of
the other factors listed in section 3553
(in Judge Newman opinion)
I shall try, to the best of my ability to follow these new cases
and their holdings in this sentence and all future ones.
Although pre-Booker, the Court originally concluded that the
defendant did qualify as a manager or supervisor under § 3.1.1 of
the U.S.S.G. This finding does not pass muster under the holding
in Booker, supra, because there has been no finding beyond a
reasonable doubt by a jury to this effect. Accordingly, the
three-level enhancement of defendant's offense level, under the
now advisory-only sentence guidelines, for role in the offense,
is rejected and there is no three-level adjustment for "role in
Now, let us turn to item 2 above. Does defendant qualify for
"safety valve" treatment under 18 U.S.C. § 3553 (f)?
The decisions in United States v. Booker and United States
v. Fanfan, supra, do not affect the application of the "safety
valve" in this case. 18 U.S.C. § 3553 (f), restated in §
5C1.2 of the U.S.S.G. The section sets forth the five criteria
the defendant must meet to qualify for "safety valve" treatment.
Testimony at the Fatico hearing on December 2, 2004 disclosed
she was a manager and supervisor in the criminal activity here
for safety valve purposes and the criminal enterprise in which
she was involved was a continuing one. That has nothing to do
with the Guidelines which are not implicated by the mandatory
minimum statute. 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 Fatico 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
defense suggestion at page 11 of the February 3, 2005 submission
that I now rule on the propriety of some of the Government
questions at the proffer sessions is rejected. The fact is that
her answers at these sessions were not completely truthful.
As to a reduction of offense level because of "extra-ordinary
family circumstances," it must be observed that defendant's
offense level under the "advisory" Guidelines is now 31, not 34,
as suggested by the Presentence Report. I note that the
Guidelines range for level 31, Criminal History Category I, is
108-135 months, 9 years to 11 years, 3 months. Because I reject
the "safety valve," the mandatory minimum is within the
Finally, the Government asks me 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). The defendant is, after all, a first offender and 108
to 135 months is a substantial period of incarceration. In my
view, this a "reasonable" range in this case.
In any event, both sides have a right to appeal my ruling and
the sentence of 10 years that I impose today, the mandatory