United States District Court, S.D. New York
April 11, 2005.
UNITED STATES OF AMERICA,
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.
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
(C) to protect the public from further crimes of the
(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
(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
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
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.
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
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
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 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),
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
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 §
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
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
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
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
(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.