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United States District Court, S.D. New York

April 11, 2005.

Noelia Carmona-Rodriguez, Defendant.

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge


Defendant Noelia Carmona-Rodriguez ("Carmona-Rodriguez") has pleaded guilty to distribution and possession with intent to distribute 400-700 grams of heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B) (a Class B felony). Carmona-Rodriguez will be sentenced to 30 months of imprisonment and 3 years of supervised release, subject to the further conditions set forth herein.

Prior Proceedings

  On April 8, 2004, Carmona-Rodriguez was arrested for alleged participation in a conspiracy to distribute heroin in violation of 21 U.S.C. § 846. On April 9, 2004, a criminal complaint was sworn against her before the Honorable James C. Francis of this district. On July 8, 2004, an indictment was filed charging Carmona-Rodriguez with one count of distribution and possession with intent to distribute heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B). On or about October 8, 2004, Carmona-Rodriguez and the Government entered into a written, non-binding, plea agreement. On December 6, 2004, Carmona-Rodriguez appeared before the Honorable Douglas F. Eaton of this district and allocuted to the conduct charged in the indictment. Judge Eaton recommended that the Court accept Carmona-Rodriguez' guilty plea. On January 17, 2005, the recommendation and plea were accepted. On March 14 and March 20 of 2005, Carmona-Rodriguez wrote to the Court concerning here sentence. Translated copies of these letters have been provided to the Government. Carmona-Rodriguez is scheduled to be sentenced on April 11, 2005.

  The Sentencing Framework

  In accordance with the Supreme Court's decision in United States v. Booker, 125 S. Ct. 738 (2005), and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), the sentence to be imposed was reached through consideration of all of the factors identified in 18 U.S.C. § 3553(a), including the advisory Sentencing Guidelines (the "Guidelines") establishing by the United States Sentencing Commission. Thus, the sentence to be imposed here is the result of a consideration of:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed —
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for —
(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 the offense.
18 U.S.C. § 3553(a). A sentencing judge is permitted to find all the facts appropriate for determining a sentence, whether that sentence is a so-called Guidelines sentence or not. See Crosby, 397 F.3d at 114-15.

  The Defendant Carmona-Rodriguez was born in Cuba on May 13, 1950. She completed the U.S. equivalent of the 8th grade before dropping out of school in 1968. That same year, she was married. In 1979, her marriage ended in divorce, apparently as a result of domestic abuse by her husband. The marriage produced one child, a son. In 1980, Carmona-Rodriguez emigrated from Cuba to the United States.

  In 1981, Carmona-Rodriguez was married for a second time. On October 16, 1982, Carmona-Rodriguez gave birth to a daughter. In 1985, her second husband committed suicide. At some point in 1985, Carmona-Rodriguez lost contact with her son, and she has not been in contact with him since.

  In 1987, Carmona-Rodriguez was married for a third time. In 1989, her husband was sentenced to 15 years of imprisonment for attempted kidnaping. He was paroled in December, 1999.

  On April 20, 1996, Carmona-Rodriguez became a naturalized U.S. citizen.

  Carmona-Rodriguez suffers from high blood pressure and diabetes. Since her arrest, she has been treated for anxiety and depression. At some point after May, 1980, she started using marijuana and she subsequently developed a daily habit. At some point after May, 1988, she started using cocaine. She also has been a sporadic heroin user. Despite this history of drug use, Carmona-Rodriguez has never participated in a substance-abuse treatment program.

  On April 1, 2004, Carmona-Rodriguez' daughter, who suffers from depression and mild retardation, gave birth to a daughter. This granddaughter is asthmatic and underdeveloped due to her premature birth.

  Since 1990, Carmona-Rodriguez has owned a single-family residence in Bronx, New York. Her husband, daughter, granddaughter, and the father of her granddaughter (who is disabled) all currently reside at this Bronx residence.

  The Offense Conduct

  The following facts concerning the offense conduct, which were presented in the presentence investigation report ("PSR"), were sworn to before Judge Francis on April 9, 2004 by Detective Kenny Robbins of the New York Police Department.

  On or about April 8, 2004, agents of the U.S. Drug Enforcement Agency ("DEA") learned from a confidential source that Carmona-Rodriguez and others had received approximately 500 grams of heroin and that they were storing this heroin in a storage locker in the Bronx, New York. Based on this information, the DEA agents arrested Carmona-Rodriguez. After receiving Miranda warnings and making an oral waiver, Carmona-Rodriguez admitted that she was involved in storing the heroin in the storage locker. Furthermore, Carmona-Rodriguez provided the DEA agents with a key to the storage locker, and she consented to a search of its contents. DEA agents searched the storage locker and seized approximately 500 grams of a substance sewn into the lining of two jackets. The substance was subsequently determined to be heroin.

  Relevant Statutory Provisions

  The mandatory minimum term of imprisonment for Carmona-Rodriguez' offense is five years, and the maximum term of imprisonment is forty years. See 21 U.S.C. § 841(b)(1)(B). If a sentence of imprisonment is imposed, a term of at least four years of supervised release must also be imposed. Id. Carmona-Rodriguez is not eligible for probation because her offense is one for which probation has been expressly precluded. See 18 U.S.C. § 3561(a)(2); 21 U.S.C. §§ 846, 841(b)(1)(B). The maximum fine that may be imposed for Carmona-Rodriguez' offense is $2,000,000. See 21 U.S.C. § 841(b)(1)(B). A special assessment of $100 is required. See 18 U.S.C. § 3013. Since this is Carmona-Rodriguez' first conviction for distribution of a controlled substance, she may be declared ineligible for any or all Federal benefits for up to a period of five years. See 21 U.S.C. § 862(a)(1)(A). Pursuant to the October 8, 2004 plea agreement, if the Court in this case finds that the relevant statutory criteria has been met, it may impose a sentence in accordance with the applicable sentencing analysis, without regard to any statutory minimum sentence. See 18 U.S.C. § 3553(f).

  The Guidelines

  The November 1, 2004 edition of the United States Sentencing Commission Guidelines Manual ("the Guidelines") has been used in this case for calculation purposes. See § 1B1.11.

  The guideline for violation of 21 U.S.C. § 841(b)(1)(B), is found in § 2D1.1(c), which provides for an offense level of 28 for a defendant who is found in possession of an amount of heroin between 400 and 700 grams.

  Carmona-Rodriguez meets the criteria set forth in Guidelines § 5C1.2(a) (1) — (5). Therefore, the offense level is reduced by 2 levels. See § 2D1.1(b)(7).

  Based on her plea allocution, Carmona-Rodriguez has shown recognition of responsibility for her offense. Furthermore, because of her timely notification of her intention to plead guilty, thus allowing the Government to allocate its resources more efficiently, and because the aforementioned base offense level is 16 or greater, the offense is reduced 3 levels. See § 3E1.1(a), (b).

  The resulting adjusted offense level is 23.

  The defendant has no known criminal convictions. Therefore, the defendant has zero criminal history points and a Criminal History Category of I.

  Based on a total offense level of 23 and a Criminal History Category of I, the Guidelines range for imprisonment is 46 to 57 months.*fn1

  The Guidelines range for a term of supervised release is 3 to 5 years. See § 5D1.2(a)(1).

  Because Carmona-Rodriguez' adjusted offense level and criminal history category place her in Zone D of the Guidelines sentencing table, she is not recommended for probation under the Guidelines. See § 5B1.1, application note 2.

  The Guidelines recommend a fine range of $10,000 to $2,000,000 for the instant offense. See §§ 5E1.2(c)(3)(A), (c) (4). The Guidelines suggest that subject to the defendant's ability to pay, in imposing a fine, the court should consider the expected costs to the Government of any imprisonment, probation, or supervised release. See § 5E1.2(d)(7). The most recent advisory from the Administrative Office of the United States Courts suggests a monthly cost of $1,931.97 to be used for imprisonment, a monthly cost of $292.21 for supervision, and a monthly cost of $1,590.66 for community confinement.

  The Guidelines state that a court may deny eligibility for certain Federal benefits of any individual convicted of distribution or possession of a controlled substance. See § 5F1.6.

  The Remaining Factors of 18 U.S.C. § 3553(a)

  Having engaged in the Guidelines analysis, this Court also gives due consideration to the remaining factors identified in 18 U.S.C. § 3553(a). In particular, section 3553(a)(2)(C) requires the court to consider the need to protect the public from future crimes of this defendant. Carmona-Rodriguez will be fifty-five years old on May 13, 2005, and she has no known prior criminal convictions. Two recent courts have declined to impose Guidelines sentences on defendants who, like Carmona-Rodriguez, were over the age of forty on the grounds that such defendants exhibit markedly lower rates of recidivism in comparison to younger defendants. See Simon v. U.S., ___ F. Supp. 2d ___, 2005 WL 711916, at *4 (E.D.N.Y. Mar. 17, 2005) (imposing a term of incarceration of 240 months on a 43-year-old defendant where the Guidelines recommended a minimum of 324 months); United States v. Nellum, 2:04-CR-30, 2005 WL 300073, at *3 (N.D. Ind. Feb.3, 2005) (imposing a term of incarceration of 108 months on a 57-year-old defendant where the Guidelines recommended a minimum of 168 months); see also United States Sentencing Commission, Measuring Recidivism: The Criminal History Computation Of The Federal Sentencing Guidelines, at p. 28 (2004) (stating that for those defendants in Criminal History Category I, the recidivism rate for defendants who are between the ages of 41 and 50 is 6.9 percent whereas the recidivism rate for such defendants who are between the ages of 31 and 40 is greater than 12 percent), available at General.pdf.

  It is also significant that the defendant is suffering from high blood pressure and diabetes and that she has received psychiatric treatment for anxiety and depression since 1994. See Nellum, 2005 WL 300073, at *4 (stating that § 3553(a)(2) and Booker "`require judges to impose sentences that . . . effectively provide the defendant with needed medical care.'") (quoting Booker, 125 S. Ct. at 765.)

  The Sentence In view of (1) the low probability that Carmona-Rodriguez will recidivate and (2) her need for ongoing medical monitoring and treatment, it is determined that a non-Guidelines term of incarceration is warranted. Therefore, a 30-month term of incarceration is hereby imposed. It should be noted that this non-Guidelines sentence is proportional to those imposed by the Nellum and Simon courts.

  In view of Carmona-Rodriguez' history of drug use, it is ordered that she be considered for drug screening and treatment while incarcerated.

  Carmona-Rodriguez has been detained without bail since her arrest. Therefore, she is not a candidate for voluntary surrender. See 18 U.S.C. § 3143(a)(2).

  A 3-year term of supervised release shall be imposed. Within 72 hours of her release from custody, Carmona-Rodriguez shall report to the nearest United States Probation Office. It is recommended that Carmona-Rodriguez be supervised by the district of her residence.

  As mandatory conditions of this supervised release, Carmona-Rodriguez shall: (1) not commit another federal, state, or local crime; (2) not illegally possess a controlled substance; (3) not possess a firearm or destructive device; (4) submit herself to a special condition requiring drug treatment and testing;*fn2 and (5) cooperate in the collection of DNA as directed by the probation officer. Furthermore, the standard conditions of supervision (1-13) shall be imposed with the following special conditions:

  (1) Carmona-Rodriguez will participate in a program approved by the United States Probation Office, which program may include testing to determine whether Carmona-Rodriguez has reverted to using drugs or alcohol. The Court authorizes the release of available drug treatment evaluations and reports to the substance abuse treatment provider, as approved by the probation officer. Carmona-Rodriguez will be required to contribute to the costs of services rendered (co-payment), in an amount determined by the probation officer, based on ability to pay or availability of the third-party payment.

  (2) Carmona-Rodriguez shall submit her person, residence, place of business, vehicle, or any other premises under her control to a search on the basis that the probation officer has reasonable belief that contraband or evidence of a violation of the conditions of the release may be found. The search must be conducted at a reasonable time and in reasonable manner. Failure to submit to a search may be grounds for revocation. Carmona-Rodriguez shall inform any other residents that the premises may be subject to search pursuant to this condition. Based on the Court's analysis of Carmona-Rodriguez' financial resources, no fine shall be imposed in this case. However, Carmona-Rodriguez shall pay to the United States a mandatory special assessment of $100, which shall be due immediately.

  The terms of this sentence are subject to modification at the sentencing hearing set for April 11, 2005.

  It is so ordered.

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