United States District Court, S.D. New York
June 8, 2005.
UNITED STATES OF AMERICA,
ANTONIO ORTIZ-ZAYAS, Defendant.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
The sentence previously announced by this Court with respect to
defendant Antonio Ortiz-Zayas ("Ortiz-Zayas") is vacated to the
extent that it imposed a term of incarceration of 91 months. As
set forth below, a term of incarceration of 60 months is hereby
imposed. No other change to the previously announced sentence is
After a jury trial, Ortiz-Zayas was convicted on June 10, 2003
of one count of Conspiracy to Illegally Engage in Dealing
Firearms in violation of 18 U.S.C. § 371 ("Count 1") and one
count of Illegal Sale of Firearms in violation of
18 U.S.C. §§ 922(a)-(1)(A) and 922(a)(2) ("Count 2"). On February 10, 2004,
Ortiz-Zayas was sentenced to 92 months of incarceration for his
On May 4, 2004, Ortiz-Zayas' co-defendant Steven Manuel Torres
("Torres"), who plead guilty on May 21, 2003 to the same offenses
that Ortiz-Zayas was subsequently convicted of, was sentenced to
concurrent terms of imprisonment of 18 months for Counts 1 and 2.
By order dated March 11, 2005, the Second Circuit remanded this
case to this Court to determine whether the previously imposed
sentence was consistent with the Supreme Court's decision and
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). Since the Second Circuit's order was issued, both the
government and Ortiz-Zayas' counsel have submitted letters
concerning the propriety of the previously imposed sentence. Sentencing Framework
In accordance with the Supreme Court's decisions in Booker
and Crosby, the sentence to be imposed must be 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 must be 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
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 following guidelines calculation lead to the imposition of
Ortiz-Zayas' 92-month term of incarceration. Based on an offense
level of 26 and a Criminal History Category of IV, Ortiz-Zayas's
guideline range for imprisonment was calculated to be 92 to 115
months. The maximum term of imprisonment on each count for which
Ortiz-Zayas was convicted was five years, or 60 months. According
to § 5G1.2(d):
If the sentence imposed on the count carrying the
highest statutory maximum is less than the total
punishment, then the sentence imposed on or more of
the other counts shall run consecutively, but only
to the extent necessary to produce a combined
sentence equal to the total punishment. § 5G1.2(d) (emphasis added). The Guidelines therefore
provide that the sentence on one of Ortiz-Zayas's two
counts run consecutively in order to reach the
prescribed guideline range.
However, pursuant to the pre-Booker sentencing regime, this
Court did not previously consider all of the factors enumerated
in 18 U.S.C. § 3553(a) when imposing Ortiz-Zayas' sentence. In
particular, the Court was constrained from considering section
3553(a)(6), which requires that the Court take into account "the
need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar
conduct." 18 U.S.C. § 3553(a)(6). Prior to Booker, courts of
appeals, including the Second Circuit, took the position that
section 3553(a)(6) did not provide any basis for downward
departures in order to avoid unwarranted disparities in the
sentences imposed on co-defendants. See United States v.
Joyner, 924 F.2d 454
, 460 (2d Cir. 1991) (stating that "[t]o
reduce the sentence by a departure because the judge believes
that the applicable range punishes the defendant too severely
compared to a co-defendant creates a new and entirely unwarranted
disparity between the defendant's sentence and that of all
similarly situated defendants throughout the country"); see
also U.S. v. McMutuary, 217 F.3d 477, 489 (7th Cir. 2000)
(stating that "most other courts have concluded that sentencing
disparities between co-defendants should never constitute a
permissible basis for departure from the Guidelines' sentencing
range") (citing, inter alia, United States v. McKnight, 186 F.3d 867
, 869 (8th Cir. 1999); United States v. Contreras,
180 F.3d 1204
, 1209-10 (10th Cir. 1999); United States v.
Lawrence, 179 F.3d 343
, 351 (5th Cir. 1999); United States v.
Perkins, 108 F.3d 512
, 515 (4th Cir. 1997)); United States v.
Higgins, 967 F.2d 841
, 845 (3d Cir. 1992).
However, pre-Booker courts made clear that the need to avoid
disparities in the sentences imposed on co-defendants was an
issue that a sentencing court could consider when selecting a
particular sentence within a Guideline range. See, e.g.,
United States v. Newby, 11 F.3d 1143, 1150 (3d Cir. 1993).
Since Booker, a growing number of courts have "held that
sentencing judges are `no longer prohibited from considering the
disparity between codefendants in fashioning a reasonable
sentence.'" Ferrara v. United States, ___ F.3d ___, 2005 WL
1205758, at *11 (D. Mass. May 13, 2005) (quoting United States
v. Hensley, No. 2:04 CR 10081, 2005 WL 705241, at *2 (W.D. Va.
Mar. 29, 2005)); see also United States v. McGee,
___ F.3d ___, 2005 WL 1324815, at *17 (7th Cir. June 3, 2005); Simon v.
U.S., 361 F. Supp. 2d 35, 49 (E.D.N.Y. 2005).*fn2 Here, the term of incarceration imposed on Ortiz-Zayas was more
than five times longer than that imposed on Torres, despite the
fact that the two men participated together in the offenses. To
be sure, there are significant differences between the prior
records of Ortiz-Zayas and Torres, and these differences justify
the imposition of a significantly harsher sentence on
Ortiz-Zayas. Torres had no criminal convictions prior to
committing the instant offense. In contrast, Ortiz-Zayas' record
contained several prior criminal adjudications. In particular,
Ortiz-Zayas pled guilty in 1988 in Bronx Supreme Court to robbery
in the first degree, and in 1996, he was convicted of possession
of a criminally dangerous substance on school property by the
Superior Court in Atlantic City, New Jersey. The instant offense
was committed less than two years after Ortiz-Zayas' release from
custody for the 1996 offense.
These differences in prior history notwithstanding, the term of
incarceration imposed on Ortiz-Zayas is disproportionately long
in comparison to that imposed on Torres. In order to reduce this disparity, a non-guidelines sentence is warranted pursuant
to 18 U.S.C. § 3553(a)(6).
Based on the foregoing, the previously imposed term of
incarceration is vacated. Ortiz-Zayas is hereby sentenced to
separate terms of incarceration of sixty (60) months for Counts 1
and 2. These terms of incarceration shall run concurrently. No
other change to the previously imposed sentence is warranted.
This amended sentence is subject to modification at the June 9,
2005 resentencing hearing.
It is so ordered.