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United States District Court, S.D. New York

February 8, 2005.


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



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.


  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 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 Page 5 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 "extraordinary 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 "advisory" range.

  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.

  The Court withdraws its comments during the February 7, 2005 hearing concerning the propriety of an enhancement, under Booker, of Ms. Ochoa-Suarez's sentence because of the Court's finding that she was a manager or supervisor under § 3.1.1. of the Sentencing Guidelines. The sentence of 10 years stands. In any Page 6 event, both sides have a right to appeal my ruling and the sentence of 10 years that I imposed yesterday, the mandatory minimum.


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