United States District Court, S.D. New York
June 13, 2005.
UNITED STATES OF AMERICA,
WILLIAM DELAROSA, Defendant.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
On January 27, 2005, Defendant William Delarosa ("Delarsoa")
appeared before the Honorable Kevin Nathaniel Fox 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). Delarosa's plea was accepted on February 24,
2005. Delarosa will be sentenced to 188 months imprisonment and
five years supervised release. A special assessment fee of $100
is mandatory and is due immediately.
On May 6, 2004, the government filed a sealed indictment
against Delarosa 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 Delarosa was issued on the same day. Delarosa
was arrested on May 11, 2004, and he has remained in custody
since that time. Delarosa entered a guilty plea on January 27,
2005, which this Court accepted on February 24, 2005, and
currently Delarosa 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
(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 Court adopts the facts set forth in the Probation
Department's Pre-sentence Report with respect to Delarosa's
family history and personal history. The Offense Conduct
The indictment filed in this action charges that from at least
1999 through May 2004, Delarosa, 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.
Delarosa was charged as a supervisor within the second tier of
the Organization's hierarchy. Second-in-command to the
Organization's leader, David Delarosa, who, incidentally, is his
cousin, Delarosa carried decision-making authority and acted as a
manager to the conspiracy's other members.
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 Delarosa specifically, the Court estimates that he
should be held accountable for conspiring to distribute between
10 and 30 kilograms of heroin during his thirty-three month involvement (from August 2001 through May 2004)*fn2 with the
Delarosa was arrested on May 11, 2004.
The Relevant Statutory Provisions
The statutory minimum term of imprisonment for the sole count
of the indictment is ten years and the maximum term is life,
pursuant to 21 U.S.C. §§ 841(a) (1), 841(b) (1) (A) and 846. If a
term of imprisonment is imposed, the Court subsequently shall
impose a term of supervised release of at least five years
pursuant to 21 U.S.C. § 841(b) (1) (A).
Delarosa is not eligible for probation because the instant
offense is one for which probation has been expressly precluded by statute, pursuant to 18 U.S.C. § 3561(a) (2) and
21 U.S.C. § 841(b) (1) (A).
The statutory maximum fine is $4 million, pursuant to
21 U.S.C. §§ 841(a) (1), 841 (b) (1) (A) and 846. A special assessment of
$100 is required. See 18 U.S.C. § 3013.
Delarosa may be declared ineligible for any or all Federal
benefits for up to five years as determined by the Court pursuant
to 21 U.S.C. § 862(a)(1)(A). Federal benefit is defined to mean
"`any grant, contract, loan, professional license, or commercial
license provided by an agency of the United States or by
appropriated funds of the United States' but `does not include
any retirement, welfare, Social Security, health, disability,
veterans benefit, public housing, or other similar benefit, or
any other benefit for which payments or services are required for
eligibility.'" See 21 U.S.C. § 862(d).
Pursuant to the Violent Crime Control and Law Enforcement Act
of 1994, all offenders on probation, parole or supervised release
for offenses committed after September 13, 1994, are required to
submit to one drug test within fifteen days of commencement of
probation, parole or supervised release and at least two drug
tests thereafter for use of a controlled substance, unless
ameliorated or suspended by the court due to its determination that the defendant poses a low risk of future
substance abuse as provided in 18 U.S.C. §§ 3563 (a)(5) and
The November 1, 2004 edition of the United States Sentencing
Commission, Guidelines Manual ("U.S.S.G.") has been used in
this case for calculation purposes, in accordance with U.S.S.G. §
The guideline for a violation of 21 U.S.C. §§ 841(a)(1), 841(b)
(1) (A) and 846 is found in U.S.S.G. § 2D1.1(a) (2), which
specifies that the base offense level is set in accordance with
the Drug Quantity Table under U.S.S.G. § 2D1.1(c) (2). At his
allocution, Delarosa indicated that he knowingly conspired with
others to possess, with intent to distribute, heroin. The Court
finds that the amount for which Delarosa should be held
accountable is between 10 and 30 kilograms of heroin. In light of
this latter amount, and pursuant to the Drug Quantity Table, the
base offense level is 36.
Because Delarosa was a manager or supervisor and the criminal
activity involved five or more participants, a three level
increase is warranted pursuant to U.S.S.G. § 3B1.1(b). Delarosa argues that he should be eligible for the two level
reduction under the safety valve provision. See U.S.S.G. §
5C1.2(a). However, Delarosa occupied a position of leadership
within the organization, thereby disqualifying him from receiving
the safety valve reduction under U.S.S.G. § 5C1.2(a) (4).
Based on Delarosa's plea allocution, he has accepted
responsibility for the instant offense. Furthermore, since he
offered timely notice of his intention to plead guilty, thus
allowing the government to allocate its resources more
efficiently, the offense level is reduced three levels, pursuant
to U.S.S.G. §§ 3E1.1(a), (b).
The adjusted offense level resulting from the foregoing
calculations and discussion is 36.
Based on the offense level of 36 and a Criminal History
Category of I, the guideline range for imprisonment is 188 to 235
The authorized term for supervised release under the guidelines
is five years, pursuant to U.S.S.G. § 5D1.2(b).
Delarosa is not eligible for probation because the applicable
guideline range is in Zone D of the Sentencing Table, pursuant to
U.S.S.G. § 5B1.1(b)(2), comment. n. 2. The fine range for the instant offense under the guidelines is
from $17,500 to $4 million, pursuant to U.S.S.G. §§ 5E1.2(c) (3)
(A) and 5E1.2(c) (4).
Subject to Delarosa's ability to pay, the expected costs to the
government of any imprisonment, probation, or supervised release
shall be considered in imposing a fine, pursuant to U.S.S.G. §
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
A special assessment of $100 is mandatory, pursuant to
18 U.S.C. § 3013.
Pursuant to U.S.S.G. § 5F1.6, eligibility for certain federal
benefits may be denied to any defendant convicted of distribution
or possession of a controlled substance.
The Remaining Factors of 18 U.S.C. § 3553(a)
Having engaged in the Guideline analysis, this Court also gives
due consideration to the remaining factors identified in
18 U.S.C. § 3553(a) in order to impose a sentence "sufficient, but
not greater than necessary" as is required 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 (2nd Cir. 2005). In particular, section
3553(a) (1) asks that the sentence imposed consider both "the
nature and circumstances of the offense and the history and
characteristics of the defendant," while section 3553(a) (2) (A)
demands that the penalty "provide just punishment for the
offense" that simultaneously "afford[s] adequate deterrence to
criminal conduct" as required by § 3553(a) (2) (B).
The Court has weighed these factors, and the remaining
sentencing factors listed in 18 U.S.C. § 3553(a), concluding that
a Guideline sentence is appropriate in this case.
For the instant offense, Delarosa is sentenced to 188 months
imprisonment and five years supervised release. As Delarosa has
been detained without bail since his arrest, he is not a
candidate for voluntary surrender pursuant to 18 U.S.C. § 3143(a)
A special assessment fee of $100 payable to the United States
is mandatory and due immediately. Because Delarosa lacks
financial resources and in consideration of the factors listed in
18 U.S.C. § 3572, no fine is imposed. As mandatory conditions of supervised release, Delarosa shall
(1) abide by the standard conditions of supervision (1-13); (2)
not commit another federal, state, or local crime; (3) not
illegally possess a controlled substance; and (4) not possess a
firearm or destructive device.
The mandatory drug testing condition is suspended due to
imposition of a special condition requiring drug treatment and
Delarosa shall participate in a program approved by the United
States Probation Office, which program may include testing to
determine whether he has reverted to using drugs or alcohol. The
release of available drug testing evaluations and reports to the
substance abuse treatment provider, as approved by the Probation
Officer, is hereby authorized. Delarosa is required to contribute
to the costs of services rendered (co-payment), in an amount
determined by the Probation Officer, based on ability to pay or
availability of third-party payment.
Delarosa shall report to the nearest Probation Office within 72
hours of release from custody and shall be supervised by the
district of residence.
This sentence is subject to modification at the sentencing
hearing now set for June 13, 2005. It is so ordered.