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U.S. v. HERNANDEZ

June 10, 2005.

UNITED STATES OF AMERICA,
v.
ALEXIS HERNANDEZ, Defendant.



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

SENTENCING OPINION

On March 23, 2005, Defendant Alexis Hernandez ("Hernandez") appeared before the Honorable Ronald L. Ellis of this district and allocuted to the conduct charged in the sole count of the indictment, conspiracy in violation of 21 U.S.C. § 846 to distribute and possess with intent to distribute one kilogram and more of heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A). Hernandez's plea was accepted on June 10, 2005. Hernandez will be sentenced to 120 months' imprisonment and five years' supervised release. A special assessment fee of $100 is mandatory and is due immediately.

Prior Proceedings

  On May 6, 2004, the government filed a sealed indictment against Hernandez and his co-defendants, charging them with a single count of violating 21 U.S.C. § 846, conspiracy to distribute and possess with intent to distribute one kilogram and more of heroin. The indictment was unsealed on May 11, 2004, and an arrest warrant for Hernandez was issued on the same day. Hernandez was arrested on August 25, 2004, and he has remained in custody since that time. Hernandez entered a guilty plea on March 23, 2005, which this Court accepted on June 10, 2005, and currently Hernandez is scheduled for sentencing on June 13, 2005.

  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 (the "Guidelines") established 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 Puerto Rico on November 14, 1980. He is the older of two children born to his parents and, after the age of three, moved to Brooklyn with his family. He reports that both his mother and father were drug addicts, frequently using marijuana and heroin in his presence. He describes a difficult upbringing and an unstable home where his parents argued constantly, until they ultimately separated when defendant was ten years old. After his parents' separation, Hernandez moved to the Bronx with his mother, and they lived in shelters for over a year until they finally were able to secure an apartment on Daly Avenue.

  As a child, Hernandez claims he felt lifeless, as though he had nothing to live for. To distract himself, Hernandez, at age eleven, was using marijuana regularly and experimenting with heroin; by the age thirteen, Hernandez was buying heroin on the street for himself, using an average of two or three bags each day. He also had begun experimenting with PCP. To support his drug addiction, Hernandez began stealing from his mother and on the street.

  Hernandez's father recovered from his own addiction and reappeared when Hernandez was fifteen years old. Learning of his son's drug use, Hernandez's father moved Hernandez back to Brooklyn. Although his father intervened and brought Hernandez to live with him, and away from his former life on Daly Avenue, Hernandez's drug use did not stop but, on the contrary, escalated. Hernandez began using crack at age sixteen and used that drug everyday for approximately two years. Hernandez previously has attempted two different detox programs but has not been able to complete a program to date. He recognizes his need for substance abuse treatment.

  Though Hernandez has never married, he has maintained a stable relationship with his girlfriend, and now fiancé, for three years. They have a daughter, who is eight months old. Four months prior to his arrest in August 2004, Hernandez moved to Connecticut with his partner and daughter to get away from his troubles in New York. His fiancé reports Hernandez to be a good father and husband and describes a stable home life in Connecticut. Hernandez plans to return to Connecticut upon his release.

  In addition to his long history of drug abuse, Hernandez suffers from mental health problems, including anxiety and depression. While incarcerated on an unrelated offense, he was treated by a psychologist and medicated accordingly. At this time, Hernandez is not under the care of any mental health professional and is not receiving any medication.

  Hernandez completed seventh grade, subsequently dropping out of school due to his drug use. He taught himself to read and write three years ago and now strives to earn his general equivalency diploma, or G.E.D. Hernandez has held various construction-based jobs over the years but reports no assets.

  Hernandez has several prior criminal convictions. He was sentenced on December 14, 2000, to one year to three years incarceration after a conviction for attempted criminal sale of a controlled substance in the third degree. He was released on parole on September 14, 2001, after serving nine months. His parole was revoked nine months later on June 15, 2002, and he was released at the expiration of his sentence on September 5, 2003, after serving another fifteen months incarcerated.

  Also on December 14, 2000, Hernandez pled guilty to a different charge of criminal sale of a controlled substance in the third degree, which occurred at a different time from the sale underlying his first conviction. For this second conviction, he received a one to three year term of imprisonment to run concurrently with the previously imposed sentence.

  On January 17, 2002, Hernandez was sentenced to ninety days imprisonment after pleading guilty to a misdemeanor drug possession charge in Brooklyn. On that same date, Hernandez pled guilty to a second misdemeanor charge of criminal possession of a controlled substance, arising out of an incident occurring at a different time and a different place from the first misdemeanor conviction. He was sentenced to second term of ninety days imprisonment to run concurrently with the initially imposed ninety day sentence.

  On December 9, 2003, Hernandez was convicted of criminal sale of a controlled substance, but sentence for that conviction remains pending. As that offense is related to the instant case, presumably the sentence for that conviction will be subsumed by the sentence in this case.

  The Offense Conduct

  The indictment filed in this action charges that from at least 1999 through May 2004, Hernandez, along with his nineteen co-defendants and others, were members of a criminal organization in the Bronx that controlled a three-block strip of Daly Avenue between East 179th Street and Bronx Park South (the "Daly Avenue Organization" or the "Organization"). According to the indictment, the Organization sold heroin all day and late into the night during the period identified in the indictment, conducting tens of thousands of hand-to-hand heroin transactions. The Organization operated out of several buildings, including 2105 Daly Avenue and 2114 Daly Avenue. Hernandez was a "worker" or "pitcher" for the Organization. Workers or pitchers for the Organization would be provided heroin on consignment by managers in the Organization, and would then sell the heroin to customers, paying the managers for the heroin as they were able to sell it. Workers and pitchers also acted as "steerers," directing customers on Daly Avenue to other workers or to managers to complete sales of heroin. According to the indictment, eleven of Hernandez's co-defendants also acted as workers or pitchers.

  Based on trial testimony before the Court, the Organization sold an average of twenty-five bundles of heroin a day, which amounts to approximately half of a kilogram per month, although the actual amount could vary from month to month.*fn1 With respect to Hernandez specifically, the Court estimates that he should be held accountable for conspiring to distribute between 3 and 10 kilograms of ...


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