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United States District Court, S.D. New York

May 2, 2005.


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


Defendant Edwin Estevez ("Estevez") has pled guilty to charges that: (1) he conspired to distribute and possess with intent to distribute one kilogram of cocaine, thereby violating 21 U.S.C. § 846 (a Class B felony), and (2) that he distributed and possessed with intent to distribute one kilogram of cocaine, thereby violating 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (a Class B felony). Estevez will be sentenced to concurrent 78-month terms of imprisonment to be followed by concurrent 4-year terms of supervised release, subject to the additional conditions set forth herein.

Prior Proceedings

  On July 29, 1997, Estevez was arrested pursuant to a complaint alleging violations of 21 U.S.C. §§ 812, 841, 846 and 18 U.S.C. §§ 2, 1029(a)(7). On August 21, 1997, an indictment with the following counts was filed against Estevez: (1) conspiracy to distribute and possess with intent to distribute 500 grams and more of cocaine (a violation of 21 U.S.C. § 846), (2) distribution and possession with intent to distribute approximately one kilogram of substances containing detectable amounts of cocaine (a violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2), and (3) possession of a telecommunications instrument that had been altered to obtain unauthorized use of telecommunications service (a violation of 18 U.S.C. §§ 1029(a)(7) and 2). On August 1, 1997, Estevez was released on $200,000 bail with strict pretrial supervision terms imposed. On December 22, 1997, Estevez failed to appear for trial, and a bench warrant was issued. On December 2, 2003, Estevez was extradited from the Dominican Republic. On March 31, 2004, Estevez allocuted to the conduct charged in counts one and two of the indictment before the Honorable Judge Andrew J. Peck of this district. On April 30, 2004, Estevez' guilty plea was accepted by the Court. Estevez has remained in custody since he was returned to this district on December 5, 2003.

  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

  Estevez was born in the Dominican Republic on October 6, 1966. His parents were married until his father's death. Estevez has seven siblings and a half sister.

  In 1981, Estevez completed the U.S. equivalent of the 7th grade at a school in the Dominican Republic. Estevez stated that he dropped out of school because he needed to get a job. Through on-the-job training, Estevez learned the trade of electrical welding.

  In 1984, Estevez' mother immigrated to New York, and she later sponsored her children for legal resident alien status. On July 9, 1991, Estevez was married, and he was divorced in 1994. On July 22, 1993, Estevez obtained legal permanent residency in the United States.

  Estevez has four daughters, ranging in age from four to sixteen. From 1993 to 1996, Estevez worked at a factory in the Bronx. In 1996, he left the job after winning $5,000 in the New York State lottery.

  Between 1996 and 1997, Estevez owned and ran his own telephone call center in Manhattan. This business was located in the vicinity of 158th Street and Edward Morgan Place. Estevez has stated that he closed this business because it was not profitable.

  For several months in 1997 and 1998, Estevez was a part owner of a taxi service in Santiago, Dominican Republic. From 1999 to February 21, 2003, Estevez worked as a salesman in Santiago.

  From 1993 until his arrest in 1997, Estevez resided in Manhattan with Carmen Rojas and their two daughters. Previously, he resided with his mother in the Bronx for about one year. At the time of his extradition from the Dominican Republic, he resided in a residence that he owns in Santiago. This residence was purchased in 1994 for approximately 400,000 Dominican pesos (approximately $14,286 based on May 2, 2005 exchange rates). In the event that he is deported, Estevez plans to return to this residence.

  In 2002, Estevez was diagnosed with heart problems. Estevez apparently has no history of mental or emotional problems. On advice of counsel, Estevez refused to answer questions concerning substance abuse that were posed to him by the probation officer.

  Estevez owes some $10,000 in attorneys' fees.

  The Offense Conduct

  The following information is taken from the Presentence Investigation Report ("PSR") prepared by the U.S. Probation Office for this district.

  On October 22, 1996, a confidential informant indicated to law enforcement officials that Estevez was involved in telecommunications fraud for a drug trafficking ring and that he was able to clone cellular telephones. The confidential informant indicated that Estevez was engaged in these activities at his place of business at 158th Street and Edward Morgan Place in Manhattan.

  On October 31, 1996, law enforcement officers established surveillance of Estevez' business.

  On December 18, 1996, an undercover officer spoke with Estevez at his business. They discussed the purchase of a kilogram of cocaine for $19,500. The undercover officer observed as Estevez made a telephone call and instructed the person on the other end of the line to have one package ready. After concluding the call, Estevez told the undercover officer that he had called a friend and that the cocaine would be available later that evening at 168th Street and Amsterdam Avenue in Manhattan.

  While inside Estevez' business, the undercover officer observed another individual engage in a transaction in which he received U.S. currency in exchange for a package containing a substance resembling cocaine. Before departing, the undercover officer told Estevez that he would return shortly with the money for the kilogram of cocaine.

  The undercover officer returned to Estevez' business at about 8:45 that evening and asked if Estevez had the cocaine. Estevez answered in the affirmative. Estevez then told the undercover officer to follow him and the other individual from his shop to 168th Street and Amsterdam Avenue. Estevez and the other individual traveled to 168th Street in one car, and the undercover officer and others traveled in another car closely behind.

  Both vehicles arrived at a business located on West 168th Street in Manhattan. Once there, the undercover officer observed Estevez enter the business and return with a plastic shopping bag. Estevez gave the undercover officer this shopping bag, which held a package containing white powder. The undercover officer then gave Estevez $19,500 in prerecorded U.S. currency. The undercover officer observed Estevez give the money to the other individual, and Estevez instructed the other individual to count the money. The other individual then entered the West 168th Street business. He came back out onto the street and told Estevez that the money was all there. Estevez and the undercover officer then discussed future drug transactions.

  Relevant Statutory Provisions

  The mandatory minimum term of imprisonment for each of Estevez' two offenses is 5 years. See 21 U.S.C. §§ 846 and 841(b)(1)(B). The maximum term of imprisonment for each offense is 40 years. See id.

  For each of Estevez' two offenses, a term of at least 4 years of supervised release is required if a sentence of imprisonment is imposed. See id.

  Estevez is not eligible for probation because his offenses are ones for which probation has been expressly precluded by statute. See id.

  The maximum fine is $2,000,000 for each of Estevez' offenses. See id. A special assessment of $100 for each offense is mandatory. See 18 U.S.C. § 3013. Since this is a first conviction for distribution of a controlled substance, Estevez may be declared ineligible for any or all federal benefits for up to five years as determined by the Court. See 21 U.S.C. § 862(a)(1)(A).

  Pursuant to the Violent Crime Control and Law Enforcement Act of 1994, for offenses committed after September 13, 1994, the Court shall require that all offenders on probation, parole, or supervised release submit to one drug test within fifteen days of commencement of probation, parole or supervised release and at least two drug tests thereafter for use of a controlled substance, unless ameliorated or suspended by the court due to its determination that the defendant possesses a low risk of future substance abuse. See 18 U.S.C. §§ 3563(a)(5) and 3583(d).

  The Guidelines

  The November 5, 2003 edition of the United States Sentencing Commission Guidelines Manual ("the Guidelines") has been used in this case for calculation purposes. See Guidelines § 1B1.11.

  Offense Level

  Estevez' two offenses are grouped together because (1) they involve acts and transactions constituting a common scheme and plan, see § 3D1.2(b), and (2) the offense level is determined on the basis of the quantity of the substances involved. See § 3D1.2(d).

  The guideline for violations of 21 U.S.C. §§ 846 and 841(b)(1)(B) is found in § 2D1.1. The offense level specified for the quantity of cocaine involved in Estevez' offenses is 26. See § 2D1.1(c)(7).

  As stated above, Estevez fled prior to the start of his trial for the instant offense, and he was subsequently extradited from the Dominican Republic. Under these circumstances, a 2 level enhancement is warranted. See § 3C1.1.

  By fleeing the United States prior to his trial, Estevez demonstrated that he did not accept responsibility for his criminal conduct. He subsequently demonstrated no intention of returning to the U.S. to face prosecution for the instant offense, thereby causing the Government to undertake extradition proceedings. Under these circumstances, no reduction in the offense level for acceptance of responsibility is warranted. See § 3E1.1, Application Note 4.

  Based on the foregoing, Estevez' total offense level is calculated to be 28. Criminal History

  The following criminal adjudication resulted in criminal history points for Estevez. Available information indicates that Estevez was represented by counsel in the below-described matter.

  On June 5, 1995, Estevez was arrested while in possession of a stolen car. On October 11, 1995, Estevez pled guilty in Manhattan criminal court to unauthorized use of a vehicle without owner consent. For this offense, Estevez received a conditional discharge.

  This criminal adjudication results in 1 criminal history point for Estevez. According to the sentencing table at Chapter 5, Part A of the Guidelines, one criminal history point establishes a Criminal History Category of I.

  Sentence Recommended Under the Guidelines

  Based on a total offense level of 28 and a criminal history category of I, the recommended term of imprisonment is 78 to 97 months.

  The recommended term of supervised release is between four and five years. See §§ 5D1.2(a)(1) and 5D1.2(b). Estevez is not recommended for probation because his offenses are class B felonies. See § 5B1.1(b)(1).

  The recommended fine range for Estevez' offenses is $25,000 to $4,000,000. See §§ 5E1.2(c)(3), (4).

  Subject to Estevez' ability to pay, in imposing a fine, the Court shall 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 Court may deny Estevez eligibility for certain Federal benefits of any individual convicted of distribution or possession of a controlled substance. See § 5F1.6.

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

  Having engaged in the Guidelines analysis, the Court also has given due consideration to the remaining factors identified in 18 U.S.C. § 3553(a).

  The Sentence Based on the foregoing, it is determined that a Guidelines term of incarceration is warranted. Therefore, separate 78-month terms of incarceration are hereby imposed for each of Estevez' two offenses. These terms of incarceration shall run concurrently.

  Estevez has been detained since he was returned to this district. Therefore, he is not a candidate for voluntary surrender. See 18 U.S.C. § 3143(a)(2).

  Concurrent 4-year terms of supervised release shall be imposed. Within 72 hours of his release from custody, Estevez shall report to the nearest United States Probation Office. It is recommended that he be supervised by the district of his residence.

  The following conditions are mandatory terms of Estevez' supervised release: (1) he shall not commit another federal, state, or local crime; (2) he shall not illegally possess and/or use a controlled substance; (3) he shall not possess a firearm or destructive device; and (4) he shall submit to one drug testing within 15 days of placement on probation or supervised release and at least two unscheduled drug tests thereafter, as directed by the probation officer. Furthermore, the standard conditions of supervision (1-13) are recommended with the special condition that Estevez obey the U.S. immigration laws and comply with the directives of U.S. immigration authorities.

  Based on the Court's analysis of Estevez' financial resources, no fine shall be imposed in this case. However, Estevez shall pay to the United States a mandatory special assessment of $200, which shall be due immediately.

  The terms of this sentence are subject to modification at the sentencing hearing set for May 2, 2005.

  It is so ordered.


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