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U.S. v. ESTEVEZ

May 2, 2005.

UNITED STATES OF AMERICA,
v.
EDWIN ESTEVEZ, Defendant.



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

SENTENCING OPINION

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 ...


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