United States District Court, S.D. New York
June 13, 2005.
UNITED STATES OF AMERICA,
SAMUEL ASIEDU, Defendant.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
On December 16, 2004, Defendant Samuel Asiedu ("Asiedu")
appeared before the Honorable Andrew J. Peck 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). Asiedu's plea was accepted on June 10, 2005. Asiedu
will be sentenced to 60 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 Asiedu 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 Asiedu was issued on the same day. Asiedu, who
had been incarcerated on New York state charges since May 3,
2004, was transferred on writ into federal custody on May 21,
2005. Asiedu entered a guilty plea on December 16, 2004, which
this Court accepted on June 10, 2005, and currently Asiedu 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 Asiedu's family
history and personal history. The Offense Conduct
The indictment filed in this action charges that from at least
1999 through May 2004, Asiedu, 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.
Asiedu 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 Asiedu specifically, the Court
estimates that he should be held accountable for conspiring to
distribute between 3 and 10 kilograms of heroin during his eight
month involvement (from September 2003 through May 1,
2004)*fn2 with the conspiracy. Asiedu was transferred into federal custody on May 21, 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. The
applicability of the statutory minimum sentence may be limited in
certain cases pursuant to 18 U.S.C. §§ 3553(f)(1)-(5).
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).
Asiedu 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. Asiedu 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 3583(d). The Guidelines
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, Asiedu indicated that he knowingly conspired with
others to possess, with intent to distribute, heroin. The Court
finds that the amount for which Asiedu should be held accountable
is between 3 and 10 kilograms of heroin. In light of this latter
amount, and pursuant to the Drug Quantity Table, the base offense
level is 34.
Based on Asiedu'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). Asiedu is eligible for the two level reduction under the safety
valve provision. See U.S.S.G. §§ 5C1.2(a)(1)-(5).
Asiedu argues that he is entitled to a reduction in the
adjusted offense level by virtue of his minor role in the
Organization, pursuant to U.S.S.G. § 3B1.2(b). Specifically,
Asiedu contends that he was merely a drug addict at the bottom
rung of the conspiracy and nothing more than a worker or pitcher.
The government argues that Asiedu is not entitled to a minor-role
adjustment, as such adjustments are only appropriate where a
defender is "substantially less culpable than the average
participant." U.S.S.G. § 3B1.2 comment. n. 3(A).
A defendant has the burden of proving by a preponderance of the
evidence that he is entitled to a minor-role adjustment under §
3B1.2. See United States v. Yu, 285 F.3d 192, 200 (2d Cir.
2002); United States v. Castano, 234 F.3d 111, 113 (2d Cir.
2000); United States v. Colon, 220 F.3d 48, 51 (2d Cir. 2000).
As the Second Circuit has explained, a minor-role reduction "will
not be available simply because the defendant played a lesser
role than his co-conspirators; to be eligible for a reduction,
the defendant's conduct must be `minor' . . . as compared to the
average participant in such a crime." United States v.
Carpenter, 252 F.3d 230, 234 (2d Cir. 2001) (quoting United States v. Rahman, 189 F.3d 88, 159 (2d Cir. 1999));
accord Yu, 285 F.3d at 200. The district court's analysis of
the defendant's role in criminal activity is, accordingly,
"highly fact-specific and depends on the nature of the
defendant's relationship to the other participants, the
importance of the defendant's actions to the success of the
venture, and the defendant's awareness of the nature and scope of
the criminal enterprise." Carpenter, 252 F.3d at 234 (quoting
United States v. Shonubi, 998 F.2d 84, 90 (2d Cir. 1993).
Asiedu has not established facts demonstrating that he was
"substantially less culpable" than most of his co-defendants.
Indeed, the majority of the participants in the Organization are
charged with serving the same function as Asiedu, i.e., acting
as a worker or pitcher and also as a steerer. As the Second
Circuit explained in United States v. Colon, 884 F.2d 1550 (2d
Cir. 1989), even steerers, who handle neither drugs nor money,
"play an important role in the street-level drug
transactions. . . ." Colon, 884 F.2d at 1552 (concluding that
the defendant was not eligible for a minimal-role adjustment). At
his allocution, Asiedu specifically admitted to distributing
heroin during the length of his involvement with the conspiracy,
thus acknowledging that he acted as more than a simple steerer.
In light of the foregoing, Asiedu has not demonstrated that he
qualifies for a minor-role reduction of his offense level. Remaining Calculations
The adjusted offense level resulting from the foregoing
calculations and discussion is 29.
Based on the offense level of 29 and a Criminal History
Category of I, the guideline range for imprisonment is 87 to 108
The authorized term for supervised release under the guidelines
is five years, pursuant to U.S.S.G. § 5D1.2(b).
Asiedu 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 Asiedu'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 confinement.
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). Asiedu was born the youngest of six children and was raised by
his mother exclusively. He has never known his biological father.
He reports a difficult childhood and an upbringing in a dangerous
neighborhood. His mother moved the family to South Carolina when
Asiedu was a freshman in high school, in the hopes of creating a
better, and safer, life for her children. However, within a year,
the family had returned to New York City.
Upon the family's return, mother and children lived with
relatives for several months, eventually moving into a shelter,
where Asiedu remained with his mother for almost seven months.
During this time, he dropped out of high school and, by age
sixteen, had developed a full-blown drug addiction to marijuana,
ecstasy and alcohol, using all three on a daily basis.
Asiedu maintained employment during his late teenage years, but
family and friends report that he was devastated after losing one
of his jobs. Inconsolable and unable to find more work, he
befriended members of the Daly Avenue Organization in the
neighborhood and began selling heroin to support his drug
Asiedu has no prior criminal convictions and has never spent
time incarcerated until his arrest on May 1, 2005. He was in
state custody for ten days when the arrest warrant in the instant offense was issued; after a total of twenty days in state
custody, he was transferred into federal custody, where he has
remained for the past year. For the first time in his young life,
Asiedu is facing extensive prison time. In correspondence with
his family, this twenty-one year old man admits that he finally
realizes "you don't realize you have a good thing until it's
gone" and that, for him, "that good thing was family and being
able to see and speak to them whenever you like." (Letter from
Trina Asiedu). Asiedu's repentance and acceptance of
responsibility has begun, and imposing any sentence of
considerable length on this twenty-one year old man achieves both
the "just punishment" and "adequate deterrence" sought under
18 U.S.C. §§ 3553(a)(2)(A), (B).
Finally, in considering the remaining sentencing factors under
18 U.S.C. § 3553(a), the Court must 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). Since Booker, a growing number of courts
have "held that sentencing judges are `no longer prohibited from
considering the disparity between co-defendants 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).*fn3 The majority of Asiedu's co-defendants are
pitchers or workers within the Organization, many of whom have
minimal criminal histories. These co-defendants have benefitted
from the "safety valve" provision and, like Asiedu, are not
subject to the statutory minimum mandatory 120 months
incarceration. All of Asiedu's co-defendants have suffered tragic
upbringings, receiving little stability and support during their
childhoods, and developing addictions to controlled substances at
an early age. Asiedu's similarly situated co-defendants were involved in the
conspiracy for a comparable length of time as Asiedu, and like
Asiedu, are held accountable for distributing 3 to 10 kilograms
of heroin over the duration of their involvement. These
co-defendants are sentenced to 60 months incarceration followed
by five years of supervised release. The Court takes note of
these sentences imposed on Asiedu's similarly situated
co-defendants in an effort to be aware of the "just punishment"
afforded other co-defendants and thereby "avoid unwarranted
sentence disparities" in accordance with 18 U.S.C. § 3553(a) (6).
For the instant offense, Asiedu is sentenced to 60 months
imprisonment and five years supervised release. As Asiedu 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 Asiedu 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, Asiedu 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
Asiedu 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. Asiedu 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.
Asiedu 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.