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