United States District Court, S.D. New York
June 13, 2005.
UNITED STATES OF AMERICA,
ROBERT MELENDEZ, Defendant.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
On February 17, 2005, Defendant Robert Melendez ("Melendez")
appeared before the Honorable Debra C. Freeman 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). Melendez's plea was accepted on March 2, 2005.
Melendez 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 Melendez 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 Melendez was issued on the same day. Melendez
was arrested on May 11, 2004, and he has remained in custody
since that time. Melendez entered a guilty plea on February 17,
2004, which this Court accepted on March 2, 2005, and currently
Melendez 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 Melendez's
family history and personal history. The Offense Conduct
The indictment filed in this action charges that from at least
1999 through May 2004, Melendez, 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.
Melendez was both a "runner" and a "pitcher" for the
Organization. As a runner, Melendez would transport drugs to
pitchers, taking from them the proceeds of their sales and
turning those profits over to the Organization's leader, David
Delarosa. 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. Melendez worked
primarily as a runner but also conducted hand-to-hand sales
during the course of his involvement with the conspiracy.
Although he acted as the middle-man between the managers and the pitchers, Melendez did
not supervise or manage other members of the Organization.
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 Melendez specifically, the Court estimates that he
should be held accountable for conspiring to distribute between 3
and 10 kilograms of heroin during his sixteen month involvement
(from January 2003 through May 2004)*fn2 with the
Melendez 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. 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).
Melendez 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.
Melendez 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, Melendez indicated that he knowingly conspired with
others to possess, with intent to distribute, heroin. The Court
finds that the amount for which Melendez 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 Melendez'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).
Disputed Adjustments Melendez argues he should be eligible for a two level reduction
under the safety valve provision, which requires, among other
conditions,: (1) that the defendant not be a leader, organizer,
manager of supervisor of others in the offense; (2) that the
defendant not possess a firearm in connection with the offense;
and (3) that, by the time of sentencing, the defendant truthfully
has provided the Government all information and evidence the
defendant has concerning the offense or offenses. See U.S.S.G.
§§ 5C1.2(a) (1)-(5).
Role in the Offense
The government asserts that Melendez carried an enhanced role
in the Organization and should receive a two level increase based
on the additional responsibilities he shouldered as a runner.
See U.S.S.G. § 3B1.1(c). Should the Court grant this upward
adjustment for aggravated role, Melendez would not be eligible
for the safety valve provision under U.S.S.G. § 5C1.2(a)(4).
Melendez rejects the government's characterization of his duties
as managerial or supervisory in nature, asserting that he carried
no decision-making authority and exercised no power over any
other member of the Organization.
"Factors the court should consider [when distinguishing a
leadership and organizational role] include the exercise of
decision making authority, the nature of participation in the
commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the
degree of participation in planning or organizing the offense,
the nature and scope of the illegal activity, and the degree of
control and authority exercised over others." U.S.S.G. § 3B1.1 n.
Trial testimony established Melendez's unique role in the
Organization. Specifically, one cooperating witness stated that
"[Melendez] was like a runner," and "right-hand man" to David
Delarosa, the conspiracy's ringleader, (Tr. 141, 270), while
another cooperating witness established that Melendez was "the
one that was kind of like in charge of the drugs and once in a
while you would see him like selling." (Tr. 381).
Furthermore, attempting to avail himself of the safety valve
reduction, Melendez proffered for the government, disclosing that
he was one of the people, but not the only person, who stored
drugs for David Delarosa. Additionally, he admitted to sharing a
"close personal relationship with the leader of the conspiracy"
and to having "attached himself to David Delarosa."
While the record illustrates Melendez's function as distinct
from the roles played by other pitchers in the Organization, the
record does not reflect Melendez's heightened authority over
other members of the Organization or any disproportionate benefit
flowing to him for his particular role as runner. No evidence has
been presented that he planned or organized the shifts worked by the pitchers and managers; defined
the nature or scope of the enterprise; or, recruited other
members into the conspiracy. Although one witness's trial
testimony characterizes Melendez as David Delarosa's "right-hand
man," Melendez argues that he was merely a lackey for David
Delarosa, acting as a gofer for David Delarosa and completely at
the mercy of the ringleader's orders. Despite the government's
assertions, a "close personal relationship" does not translate
automatically into a close business relationship in which David
Delarosa endowed Melendez with any sort of authority, discretion,
In addition to the record's lack of evidence as to Melendez's
decision-making authority within the Organization, a psychiatric
evaluation conducted by Dr. Beverly Martin (hereinafter the
"Martin Report") of Melendez submitted to the Court informs that
the defendant suffers from mild mental retardation and an I.Q. of
approximately 59. (Martin Report, p. 5). The report further
characterizes Melendez as suffering from, among other things,
Personality Disorder, exhibiting a "strong dependency on others
to guide him and reassure him. When faced with a challenging
situation [Melendez] tends to relinquish control to others
instead of boldly confronting the issue himself." (Martin Report,
p. 6). The report concludes,
This type of worldview permeates [Melendez's]
thinking and reflects how he passively perceives and
interacts with the world. He tends to engage in a
type of magical thinking whereby things work out by
themselves with little thought or effort. Based on these responses,
[Melendez] may be relating to his environment on a
very immature and simplistic level. He seems to
become easily confused with the demands of life and
there is a passivity with regards to his interactions
(Martin Report, p. 7)
According to this report, Melendez lacked the capacity to
assume a leadership role in the Organization or to exercise any
type of decision-making authority over his fellow members. This
psychological profile confirms that Melendez is a follower by
nature and does not seek to control or confront others. To the
contrary, he seeks to follow and to please to be someone's
"right-hand man." Demonstrating limited cognitive function,
Melendez is mildly mentally retarded and becomes "easily
confused" with the mundane demands of everyday life; he could not
maintain employment as a cashier at a local McDonald's because he
could not comprehend and execute his responsibilities.
Given the foregoing discussion, the Court finds that Melendez
did not carry decision-making authority or exercise a managerial
or supervisory position within the Organization. He did not
occupy an aggravated role in the conspiracy, and no two level
enhancement will be granted under U.S.S.G. § 3B1.1(c).
Use of a Firearm
The government argues that Melendez should receive a two level
increase for possession of a firearm pursuant to U.S.S.G. §
2D1.1(b)(1). The application of this two level enhancement would preclude Melendez from benefiting from the safety valve reduction
under U.S.S.G § 5C1.2(a)(2).
The commentary to section 2D1.1(b)(1) states that two levels
should be added for possession of a firearm "unless it is clearly
improbable that the weapon was connected with the offense."
U.S.S.G. § 2D1.1 comment. n. 3. The Second Circuit elaborates in
United States v. Smith, 215 F.3d 237 (2d Cir. 200), stating
"our case law indicates that once the government has established
that a weapon's presence was reasonably foreseeable to the
defendant during conduct (i.e., the storage and cutting of
drugs) relevant to the offense (i.e., distribution of drugs) at
issue, the enhancement will apply, unless the defendant
demonstrates that it is clearly improbable that the weapon was
connected with the drug offense." Id. at 241.
Trial testimony of one cooperating witness, Mr. Emerson Peters
(hereinafter "Peters"), linked Melendez to possession of a
firearm on only one evening. According to Peters, as he and
Melendez were walking back to his apartment, other men standing
on a street corner opened gunfire on Melendez and himself. Peters
testified that he and Melendez returned fire in self-defense,
luckily escaping unscathed.*fn3 Pursuant to the Second Circuit test articulated in Smith,
Melendez must counter the government's allegations of firearm
possession by demonstrating that it was "clearly improbable that
the weapon was connected with the drug offense." Id. While
Melendez confirms that he and Peters went to Peters's apartment,
Melendez asserts that only Peters was carrying drugs. These drugs
were for his personal use, and not the Organization's property to
be sold, thereby demonstrating that the two of them were not
engaged in activity in furtherance of the conspiracy at the time
of this incident.
As the two men approached Peters's apartment, Peters, a member
of the "Bloods" gang, "had words" with several men on the street
corner who were from the Peters's rival gang, the "Crips."
Melendez and Peters went to Peter's apartment, and upon leaving a
short while later, they noticed a large group of "Crips" waiting
for them. A shoot-out ensued, with the "Crips" men first firing
on Melendez and Peters. Peters, who possessed two guns, passed
one to Melendez to use in self-defense. Once both men escaped
unharmed, Melendez returned the firearm to Peters.*fn4
The government does not object to the narration provided by
Melendez, but instead argues that a shoot-out between two rival
gangs during which Melendez possessed a firearm is sufficient to apply the firearm enhancement because Melendez was seeking to
protect Peters, a co-conspirator in the Organization.
However, the Second Circuit in Smith requires a connection
between the drug offense and the possession of a firearm.
Melendez possessed the gun for only a few moments, and held it in
self-defense, while being fired upon by men whom he did not know.
He was not in the process of conducting business on behalf of the
Organization. He simply was walking down the street when his
companion, and in this case co-conspirator, chose to engage in
hostilities with rival gang members. Melendez had no stake in
Peters's confrontation with the "Crips" and did not participate
in the build-up to the shoot-out. Melendez temporarily possessed
the firearm after finding himself in the cross-fire between rival
gang members, and, as such, did not possess the firearm to
further goals of the conspiracy. No two level enhancement for
possession of a firearm will apply under U.S.S.G. § 2D1.1(b)(1).
Without enhancements for aggravated role and possession of a
firearm, Melendez is eligible for a safety valve reduction
provided he proffered truthfully to the government prior to the
time of sentencing. See U.S.S.G. § 5C1.2(a)(5).
Melendez has proffered with the government before the time of sentence, and the government has not stated that Melendez
proffered untruthfully. Describing Melendez's attitude as "cocky
and manipulative," the government has not characterized his
proffer session as untruthful. (Government letter, dated June 9,
2005, p. 4). As noted in section 5C1.2(a)(5), "the fact that the
defendant has no relevant or useful other information to provide
or that the government is already aware of the information shall
not preclude a determination by the court that the defendant has
complied with this requirement." U.S.S.G. § 5C1.2(a)(5). Thus,
based on the record before the Court, Melendez's proffer is
accepted, and a two point safety valve reduction will be applied
pursuant to U.S.S.G. §§ 5C1.2(a)(1)-(5).
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).
Melendez 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 Melendez'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).
Melendez was the youngest of three children and was raised
exclusively by his mother after the age of four, when his father
abandoned the family. Melendez had minimal contact with his
father in the following years.
He has suffered from mild mental retardation for his entire
life. He also was diagnosed with a learning disability in third
grade and assigned to special education classes, in which he
struggled every year. Growing up under strained economic
conditions, his family did not have the resources to provide
additional care for Melendez's learning disability. Though he
persisted into high school, he dropped out before graduating. His mother suffered from both physical and mental health
problems during Melendez's upbringing, and though mother and son
still share a close relationship, he reports his early life as
difficult. He began smoking marijuana at age fourteen, and soon
was addicted to marijuana, ecstasy and alcohol, using them in
combination on a regular basis.
Since childhood Melendez has suffered from depression and
anxiety disorders, for which he is now receiving mental health
treatment and medication while incarcerated. He simultaneously
has been diagnosed with Attention Deficit-Hyperactivity Disorder,
for which he is also now medicated. A psychological evaluation
filed with the Court describes Melendez as having "a strong
dependency on others to guide him and reassure him,"
characterizing these as "dependent features" and the backbone of
his personality disorder. (Martin Report, p. 6).
Melendez's limited education and cognitive abilities coupled
with his drug addiction and mental health problems prevented him
from maintaining employment for any significant length of time.
Although he did get hired as a cashier at a McDonald's, he was
fired shortly after starting because he could not grasp the
duties and responsibilities of the job. Seeking both approval
from his peers and a means of supporting his drug habit, Melendez
joined the Daly Avenue Organization. Melendez has no prior convictions and has never spent any
period of time incarcerated. Given that this sentence is
Melendez's first, imposing any substantially lengthy sentence on
this twenty year old man achieves both the "just punishment" and
"adequate deterrence" sought under 18 U.S.C. §§ 3553(a)(2)(A),
Furthermore, section 3553(a)(2)(D) requires the Court to
consider a sentence that will "provide the defendant with needed
educational or vocational training, medical care or other
corrective treatment in the most effective manner." U.S.S.G. §
3553(a)(2)(D). Melendez's life-long mental health and educational
challenges have never been addressed adequately or
comprehensively. The Court must weigh Melendez's special need for
extended mental health treatment, remedial education, and
vocational training when imposing sentence. Given the foregoing
discussion, a shorter term of incarceration combined with a
lengthy period of supervised release carrying the aforementioned
conditions best serves the long-term goals of punishment.
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 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).*fn5 The majority of Melendez's
co-defendants are pitchers or workers within the Organization,
many of whom have minimal criminal histories. Although Melendez
acted as both a runner and as a pitcher, Melendez, like his
co-defendants, did not carry any decision-making authority or any supervisory
authority over other members. As such, Melendez is similarly
situated to these co-defendants in his offense conduct. These
co-defendants have benefitted from the "safety valve" provision
and, similar to Melendez, are not subject to the statutory
minimum mandatory 120 months incarceration. All of Melendez's
co-defendants have suffered terrible upbringings, receiving
little stability and support during their childhoods, and
developing addictions to controlled substances at an early age.
Melendez's similarly situated co-defendants were involved in
the conspiracy for a comparable length of time as Melendez, and,
like Melendez, 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 Melendez'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, Melendez is sentenced to 60 months
imprisonment and five years supervised release. As Melendez has been detained without bail since his arrest, he is not a
candidate for voluntary surrender pursuant to
18 U.S.C. § 3143(a)(2).
A special assessment fee of $100 payable to the United States
is mandatory and due immediately. Because Melendez 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, Melendez 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
Melendez 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. Melendez 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.
Melendez shall participate in a mental health program approved
by the United States Probation Office. Melendez shall continue to
take any prescribed medications unless otherwise instructed by
the health care provider. The defendant shall contribute to the
costs of services rendered not covered by third-party payment, if
he has the ability to pay. The Court authorizes the release of
available psychological and psychiatric evaluations and reports
to the health care provider.
Melendez 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.