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April 13, 2005.


The opinion of the court was delivered by: VICTOR MARRERO, District Judge


On October 1, 2003, a jury found Adrian Agostini ("Agostini") guilty of Counts One and Two of superceding indictment number S17 00 Crim. 0237. Count One charged Agostini with Aggravated Assault in Aid of Racketeering in violation of 18 U.S.C. §§ 1959(a)(3) and 2. Count Two charged Agostini with conspiracy to distribute and possess with intent to distribute one kilogram and more of heroin, fifty grams and more of cocaine base, in a form commonly known as crack, and marijuana, in violation of 21 U.S.C. §§ 812, 841(a)(1), (b)(1)(A), (b)(1)(D), and 846. With respect to Count Two, the jury acquitted Agostini of the heroin distribution component and found him guilty of the distribution of less than five grams of cocaine base, or crack.

The Court has issued numerous decisions during the course of the two trials concerning the facts at issue in this case, see United States v. Santiago, 214 F. Supp. 2d 421 (S.D.N.Y. 2002); United States v. Santiago, 207 F. Supp. 2d 129 (S.D.N.Y. 2002); United States v. Santiago, 199 F. Supp. 2d 101 (S.D.N.Y. 2002); United States v. Santiago, 185 F. Supp. 2d 287 (S.D.N.Y. 2002); United States v. Santiago, 174 F. Supp. 2d 16 (S.D.N.Y. 2001), and the Court herein incorporates the factual recitations in those decisions.

  For the reasons stated on the record at the sentencing of Agostini before the Court on April 12, 2005, as further elaborated upon in the Statement of the Court which is attached hereto and incorporated herein, Agostini's motion for a judgment of acquittal in this case is denied. The Court additionally finds that, under the United States Sentencing Guidelines, Agostini's total adjusted offense level for the two Counts on which he was found guilty is thirty-six (36) and his criminal history category is II. The Court sentenced Agostini to three hundred (300) months imprisonment upon consideration of the factors listed in 18 U.S.C. § 3553(a).

  Accordingly, it is hereby

  ORDERED that Adrian Agostini's Motion for a Judgment of Acquittal is DENIED.

SO ORDERED. Statement of the Court Regarding the Sentencing of Adrian Agostini
  The Court acknowledges that the decision by the Supreme Court in United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), has changed the legal landscape in which federal defendants are sentenced. Although no longer bound by the mandatory constraints of the Sentencing Guidelines, this Court "must consult those Guidelines and take them into account when sentencing." 125 S. Ct. at 767 (Breyer, J.). Therefore, the Court has considered the findings of fact stated in the Presentence Report ("PSR"), as well as the Guidelines analysis and recommendations contained therein. The Court has weighed this information along with the factors listed in 18 U.S.C. § 3553(a) in coming to its final sentencing decision.

  The sentencing before the Court today is not an easy one, and the Court has devoted considerable resources to studying the record and reviewing all correspondence related to the matter in order to ensure that it imposes a fair and just sentence on Adrian Agostini ("Mr. Agostini" or "defendant"). The parties raised numerous objections and requested myriad enhancements and departures, each of which must be dealt with in turn. As a preliminary matter, the Court notes that the PSR prepared for this sentencing used the version of the Sentencing Guidelines in effect starting November 1, 2003. The Court in its analysis used the Guidelines that are currently in effect, which became effective on November 1, 2004, in accordance with U.S.S.G. § 1B1.11. The use of the most recent version of the Guidelines does not violate the Ex Post Facto Clause of the Constitution, as the Court's Guidelines calculation would be same even if the Court utilized the Guidelines in effect at the time of the commission of Mr. Agostini's offenses, those effective November 1, 2000.*fn1


  The first issue the Court must resolve is defendant's motion for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure. Although defendant withdrew his Rule 29 motion as being untimely by letter to the Court dated January 25, 2005, he suggested that the Court might still address the issues that he raised under Crawford v. Washington, 541 U.S. 36 (2004). The Court has reviewed defendant's submission on this issue and finds that there exists no procedural means by which the Court could address any potential question created by the Crawford decision at this stage in the case.*fn2 As the Supreme Court stated in Carlisle v. United States, 517 U.S. 416, 421 (1996), "[t]here is simply no room in the text of Rules 29 and 45(b) for the granting of an untimely postverdict motion for judgment of acquittal, regardless of whether the motion is accompanied by a claim of legal innocence, is filed before sentencing, or was filed late because of attorney error." Defendant did not suggest, nor could the Court identify, an alternative procedural basis on which it could review these issues. The Court, therefore, denies Mr. Agostini's motion for a judgment of acquittal based on the Supreme Court's holding in Crawford.


  A. Count Two: Narcotics Conspiracy

  Next, the Court will consider the range of sentence that application of the Sentencing Guidelines would produce and recommend. To this end, the Court will first address the proper offense level associated with Mr. Agostini's narcotics conviction. Mr. Agostini argues that his sentence should be based solely on the drug quantity found by the jury in its verdict, five (5) grams of cocaine base, or crack, which corresponds to an offense level of twenty-four (24). Both the PSR and the Government advocate for the application of a base offense level of thirty-eight (38) under the Guidelines. This offense level is calculated by holding Mr. Agostini responsible for various quantities of crack and heroin in excess of that found by the jury in its verdict.

  As a preliminary matter, the Court finds that Mr. Agostini can be held liable for relevant conduct under U.S.S.G. § 1B1.3 committed by his co-conspirators, even if he was acquitted by the jury of such conduct, such as the conspiracy to distribute heroin. The Supreme Court held in United States v. Watts, 519 U.S. 148 (1997), that a sentencing court may consider conduct of which a defendant has been acquitted when imposing a sentence, as long as that conduct has been proved by a preponderance of the evidence. The Supreme Court deferred the question of what standard of proof should be used for cases where such acquitted conduct, if ...

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