United States District Court, S.D. New York
May 2, 2005.
UNITED STATES OF AMERICA,
EDWIN ESTEVEZ, Defendant.
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
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
(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.
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
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
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
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
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
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
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
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
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.
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.
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
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.
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 §
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
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
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
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.
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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