United States District Court, S.D. New York
June 2, 2005.
UNITED STATES OF AMERICA,
JACQUELINE HERNANDEZ, Defendant.
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.
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
(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 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
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 §
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)
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.
Hernandez has no known criminal convictions. Therefore, she has
zero criminal history points and a criminal history category of
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
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
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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