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United States District Court, S.D. New York

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 history of substance abuse.

  Hernandez owns a 1992 Acura Legend, valued at about $1,000. Hernandez has total monthly expenses of $1,408. Although her apartment rent was two months in arrears at the time of her arrest, Hernandez reported no liabilities on a recent financial disclosure. Hernandez has applied for public assistance benefits.

  In the year 2000, Hernandez reported $10,645 in self-employment income, and $9,893 in adjusted gross income. Her total tax liability was $1,504, and she was issued a refund of $2,384. Hernandez did not file any returns for the years 1998, 1999, or 2001 through 2003.

  The Offense Conduct

  The following information concerning Hernandez' offense conduct was received from the government. The investigation into the instant offense was conducted by the Drug Enforcement Administration (DEA) with the assistance of a cooperating witness.

  On February 5, 2003, the cooperating witness met with Hector Hernandez, Felix Hernandez, and Jacqueline Hernandez. During this meeting, these co-defendants discussed with the cooperating witness their drug activities, as well as the drug activities of others. Jacqueline Hernandez advised the cooperating witness that Berroa wanted to speak with the cooperating witness about a shipment of cocaine that would be arriving in New York City. In addition, Hector Hernandez said he had sold approximately 50 kilograms of cocaine in the past month and was now interested in selling ecstasy to the cooperating witness.

  On August 6, 2003, the cooperating witness met with Hernandez, Saldivar, and Jacqueline Hernandez. During this meeting, Saldivar asked the cooperating witness about the two kilograms of cocaine that Saldivar had provided to the cooperating witness in the summer of 2002. Specifically, Saldivar inquired as to the whereabouts of the individual who, according to the cooperating witness, had been given the cocaine and who had been robbed of it. Saldivar stated he owed more than a $1,000,000 to the people who had provided the cocaine and that he needed to be paid. Saldivar also stated that people get killed in such situations. In addition, Jacqueline Hernandez told the cooperating witness that if the providers of the cocaine came looking for their money, she would give them the individual who had been given the cocaine by the cooperating witness.

  Relevant Statutory Provisions

  The minimum term of imprisonment for Hernandez' offense is ten years, and the maximum term is life. See 21 U.S.C. §§ 841(a) (1), 841(b) (1) (A) and 846.

  The minimum term of supervised release for Hernandez' offense is five years, and the maximum term is life. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846.

  Pursuant to the plea agreement entered into by the parties, if the Court in this case finds that the relevant statutory criteria has been met, it may impose a sentence in accordance with the applicable sentencing analysis, without regard to any statutory minimum sentence. See 18 U.S.C. § 3553 (f). Hernandez is not eligible for probation because the instant offense is a Class A felony. See 18 U.S.C. § 3561(a)(1).

  The maximum fine that may be imposed for Hernandez, offense is $4 million. See 21 U.S.C. §§ 841(a)(1), 841(b)(1) (A) and 846. A special assessment of $100 is mandatory. See 18 U.S.C. § 3013.

  Since this is a first conviction for an offense involving distribution of a controlled substance, Hernandez 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 must require that all defendants sentenced to 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 tests thereafter for use of a controlled substance, unless ameliorated or suspended by the Court based on its determination that the defendant poses a low risk of future substance abuse as provided in 18 U.S.C. §§ 3563(a) (5) and 3583 (d). The Guidelines

  The November 5, 2003 edition of the the Guidelines has been used in this case for calculation purposes. See Guidelines § 1B1.11.

  Offense Level

  The guideline for a violation of 21 U.S.C. §§ 846, 841(a) (1) and 841(b) (1) (A) is found in § 2D1.1. Pursuant to the June 10, 2004 plea agreement, Hernandez' criminal activity is stipulated to have involved a conspiracy to distribute more than 150 kilograms of cocaine. The offense level for a conspiracy involving this amount of cocaine is 38. See § 2D1.1(c) (4) (Drug Quantity Table). Since Hernandez qualifies for an adjustment pursuant to § 3B1.2, the base offense level is capped at 30. See § 2D1.1(3).

  Since Hernandez meets the "safety valve" criteria set forth in § 5C1.2, the offense level is reduced 2 levels. See § 2D1.1 (b) (6).

  Hernandez is considered to have been a minimal participant in the offense. Therefore, the offense level is reduced 4 levels. See § 3B1.2(a). Based on Hernandez' plea allocution, she has shown recognition of responsibility for her offense. Because of her timely notification of her intention to plead guilty, thus allowing the government to allocate its resources more efficiently, and because the aforementioned base offense level is 16 or greater, the offense level is reduced 3 levels. See § 3E1.1(a), (b).

  The resulting total offense level is 21.

  Criminal History

  Hernandez has no known criminal convictions. Therefore, she has zero criminal history points and a criminal history category of I.

  Sentence Recommended Under the Guidelines

  For Hernandez' offense, a mandatory minimum 10-year term of imprisonment is required by statute. Therefore, the standard recommended term of imprisonment is 120 months. See § 5G1.1(b). However, since Hernandez satisfies the criteria set forth in 18 U.S.C. § 1553(f), she may be sentenced without regard to the mandatory minimum statutory penalty. See § 5C1.2. Based on a total offense level of 21 and a criminal history category of I, the recommended term of imprisonment is between 37 and 46 months. See Ch. 5, Pt. A. Probation is precluded by statute. Furthermore, because the applicable guideline range is in Zone D of the Sentencing Table, Hernandez is not recommended for probation. See § 5B1.1, Application Note 2.

  The standard minimum term of supervised release required by statute is 5 years. See § 5D1.2(b). However, since Hernandez is "safety valve" eligible, the recommended term is 3 to 5 years. See § 5D1.2(a) (1).

  The recommended fine range for Hernandez' offense is $7,500 to $4 million. See §§ 5 E1.2(c) (3) (A) and E1.2(c) (4). The Guidelines advise that subject to the defendant's 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 eligibility for certain Federal benefits of any individual convicted of distribution or possession of a controlled substance. See § 5F1.6. Pursuant to the plea agreement, Hernandez has the right to seek a downward departure based upon family circumstances. As described above, Hernandez is raising four children (ages 2, 6, 17 and 19) by herself inasmuch as the children's fathers, Berroa and Saldivar, are both in custody in connection with the instant prosecution. Hernandez' parents are deceased, and her brother (Hector Hernandez) and half-brother (Felix Hernandez) are also incarcerated as co-defendants in this case. Lastly, the defendant's only other sibling, her sister Mayra Hernandez, is living with the defendant but has three children of her own.

  Furthermore, during the time Hernandez was incarcerated, her children developed depression, separation anxiety, and Post Traumatic Stress Syndrome, for which they continue to receive treatment from a psychotherapist and social worker.

  Based on the foregoing, it is determined that a downward departure is warranted. See §§ 5H1.6 and 5K2.0(a) (4).

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

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

  A Guidelines sentence is hereby imposed.

  Hernandez has already served eight months in connection with her offense. In light of Hernandez' family circumstances, a downward departure is warranted under the Guidelines. Therefore, Hernandez will not be sentenced to any additional period of incarceration.

  A 3-year term of supervised release is hereby imposed. Within 72 hours of imposition of sentence, Hernandez shall report to the nearest United States Probation Office. It is recommended that she be supervised by the district of her residence.

  As mandatory conditions of her supervised release, Hernandez shall: (1) not commit another federal, state, or local crime; (2) not illegally possess a controlled substance; (3) not possess a firearm or destructive device; and (4) refrain from any unlawful use of a controlled substance. The mandatory drug-testing provision is hereby waived because Hernandez has no known history of drug use, and she does not appear to be at risk of engaging in such behavior in the future. It should be noted that although Hernandez' offense is drug-related, she had a minimal role in the offense. Furthermore, the standard conditions of supervision (1-13) shall be imposed with the special condition that Hernandez shall obey the immigration laws and comply with the directives of immigration authorities.

  Based on the Court's analysis of Hernandez' financial resources, no fine shall be imposed in this case. However, Hernandez shall pay to the United States a mandatory special assessment of $100, which shall be due immediately.

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

  It is so ordered.


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