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U.S. v. OCHOA-SUAREZ

February 8, 2005.

UNITED STATES OF AMERICA,
v.
NORAELENA OCHOA-SUAREZ, Defendant.



The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge

MEMORANDUM OPINION and ORDER

Background

The Court, sua sponte, reconsiders its memorandum opinion and order, dated February 7, 2005, and issues the following corrected decision.

  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, ___ U.S. ___, 125 S.Ct 738 (2005).

  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); Page 2

  (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 U.S.S.G.).

  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.

  Discussion

  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, 2005 WL 240918 at *7 (2d Cir. 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 sentence.
  These principles change the Guidelines from being mandatory to being advisory, but it is important to bear in mind that Booker/Fanfan and Page 3 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 (a).*fn13 (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 would result in a three-level enhancement of Ms. Ochoa-Suarez's sentence from a Level 31 (I) (108-135 months) to Level 34(I) (151-188 months). While the Court may consider the enhanced guidelines range based on this finding of fact, Booker makes clear that the Court is not bound to impose the enhancement. In fact, a mandatory imposition of the higher guidelines sentence would be error. See Crosby, 2005 WL 240916 at *8. After considering the possible enhancement to Level 34 (I), the Court rejects it as inappropriate in this case given the other factors in 18 U.S.C. § 3553 (a). The Court notes that Ms. Ochoa-Suarez is a first-time offender; her imprisonment is a tragedy for Page 4 her children; and a sentence within the Level 31(I) range of 108-135 months is reasonable and surely reflects the seriousness of her offense, affords adequate deterrence, protects the public and affords ample opportunity for the Ms. Ochoa-Suarez to receive educational and vocational training in the most effective manner.

  Now, let us turn to item 2 above. Does defendant qualify for "safety valve" treatment ...


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