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June 2, 2005.


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


Defendant Jacqueline Hernandez ("Hernandez") has pled guilty to one count of conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 (a Class A felony). Hernandez will be sentenced to a term of incarceration of time previously served and 3 years of supervised release, subject to the further conditions provided herein.

Prior Proceedings

  On October 3, 2003, a complaint was signed alleging that Hernandez and co-defendants Henry Berroa ("Berroa"), Eddie Saldivar ("Saldivar"), Hector Hernandez and Felix Hernandez had violated 18 U.S.C. § 846. A warrant for Hernandez' arrest was issued that day. On October 6, 2003, Hernandez was arrested. On October 21, 2003, an indictment was filed, Count One of which charged that in violation of 21 U.S.C. § 846, Hernandez and the other co-defendants conspired to distribute and possess with intent to distribute one kilogram and more of heroin, five kilograms and more of cocaine, 50 grams and more of crack cocaine, and pills containing Methylene-dioxymethamphetamine ("ecstasy"). On October 24, 2003, Hernandez was arraigned before the Honorable Kevin Nathaniel Fox of this district.

  In connection with this prosecution, Hernandez was held in custody from her arrest on October 6, 2003 until June 10, 2004. At that time, she was released on $100,000 bail with strict pretrial supervision.

  On June 4, 2004 Hernandez and the government entered into a plea agreement. On June 10, 2004, Hernandez pled guilty to that portion of Count One relating to the conspiracy to distribute cocaine. By letter dated May 20, 2005, Hernandez' counsel requested a downward departure pursuant to § 5H1-6 of the United States Sentencing Commission Guidelines Manual ("the Guidelines") based on Hernandez' family situation. See Letter from Amelio P. Marino to the Court of September 7, 2004.

  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 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

  Hernandez was born in the Dominican Republic on September 13, 1969. She is the youngest of three children resulting from the union between her parents. Her mother died in 1975, and her father died in 1982.

  Hernandez received an eighth-grade education in the Dominican Republic. Since coming to the United States, she has made several unsuccessful attempts to gain a high school equivalency degree.

  Hernandez has familial connections to the co-defendants. Hector Hernandez is her brother. Felix Hernandez is her paternal half brother. When Hernandez was 13 and still living in the Dominican Republic, she began a relationship with Saldivar, who was married at the time. This relationship, which lasted some twenty years produced Hernandez' two oldest children. In 1991, while she was still in a relationship with Saldivar, Hernandez began a relationship with Berroa. This relationship produced Hernandez' two youngest children. Hernandez entered the United States illegally in 1989. She received permanent resident status on October 20, 1992. Hernandez married a man for the purpose of obtaining legal resident status. She could not recall the year this marriage occurred. This marriage occurred in New York City, and the couple was legally separated by 1996. Hernandez is unaware if a divorce was ever obtained.

  Upon arriving in the United States, Hernandez worked for a period of months at a restaurant and then at a clothing store. She has not been regularly employed since that time. However, she has earned income from time to time by doing domestic work for family members.

  From 1988 until 1993, Hernandez lived with Saldivar and their children in an apartment in the vicinity of East 97th Street in Manhattan, New York. For a short time thereafter, Hernandez and Saldivar lived in an apartment in the vicinity of West 190th Street in Manhattan.

  Hernandez has lived on Suffolk Street in Manhattan since 1993. From 1993 until about 2001, Hernandez lived with Berroa at this address. Hernandez currently lives at this address with her four children, her sister Mayra Hernandez, and Mayra Hernandez' three children. Since both Saldivar and Berroa are in custody, Hernandez is solely responsible for the care of her four children, who are ages 2, 6, 17 and 19 years respectively. During the period of Hernandez incarceration (from October 6, 2003 to June 10, 2004). Mayra Hernandez cared for Hernandez' children. During this time, Hernandez' children developed depression, separation anxiety, and Post Traumatic Stress Syndrome. These conditions affected social interaction and school performance of Hernandez' children, and the children continue to receive treatment from a psychotherapist and social worker for these conditions. These symptoms were significantly reduced when the Hernandez was able to return to the home.

  Hernandez has no significant health problems, no prior mental problems, and she has no reported ...

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