United States District Court, S.D. New York
June 13, 2005.
UNITED STATES OF AMERICA,
BRIAN BROCK, Defendant.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
On December 23, 2004, Defendant Brian Brock ("Brock") appeared
before the Honorable Frank Maas 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). Brock's plea was accepted on January 17, 2005.
Brock 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 Brock 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 Brock was issued on the same day. Brock was
arrested on May 11, 2004, and he has remained in custody since
that time. Brock entered a guilty plea on December 23, 2004,
which this Court accepted on January 17, 2005, and currently
Brock 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
(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
(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 Brock's family
history and personal history. The Offense Conduct
The indictment filed in this action charges that from at least
1999 through May 2004, Brock, 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.
Brock 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 Brock specifically, the Court
estimates that he should be held accountable for conspiring to
distribute between 3 and 10 kilograms of heroin during his twelve
month involvement (from January 2003 through December
2003)*fn2 with the conspiracy. Brock 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).
Brock 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.
Brock 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, Brock indicated that he knowingly conspired with
others to possess, with intent to distribute, heroin. The Court
finds that the amount for which Brock 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 Brock'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
Brock argues he should be eligible for a two level reduction
under the safety valve provision, which requires that an
individual have no more than one criminal history point. See
U.S.S.G. §§ 5C1.2(a)(1)-(5).
Brock was adjudicated a juvenile delinquent in 1999 for
Criminal possession of Stolen property in the Fourth Degree. He
and a friend went for a joyride in their social worker's car, who
was employed at the juvenile group home/treatment center at which
Brock and his friend were residents. The Bronx County Family
Court imposed a sentence of eighteen months at a limited secure
Section 4A1.2(d)(2)(A) of the Guidelines requires that each
"adult or juvenile sentence to confinement of at least sixty
days" trigger two criminal history points "if the defendant was
released from such confinement within five years of his
commencement of the instant offense." U.S.S.G. § 4A1.2(d)(2)(A).
However, since a family court judge may consider an array of
options when sentencing a youth, "juveniles may be placed in
foster care, or in group homes, or in residential treatment
centers, or in secure prison like facilities. There may, then,
be cases in which an extensive `sentence of confinement' (say to
a juvenile Outward Bound program) would not even be roughly
equivalent to a sixty-day prison sentence. And it may be that the
confinement ordered is not directly related to the gravity of the
offense. Judges may, for instance, fashion a disposition on the
basis of the juvenile's home environment, and the need to remove
the individual from that setting." United States v. Johnson,
28 F.3d 151, 155 (D.C. Cir. 1991). See Kent v. United States,
383 U.S. 541 (1966).
When Brock was sentenced to serve eighteen months in a limited
secure facility, he was already living at a residential school
and treatment center for juveniles. He had been voluntary placed
at this residential facility two years earlier due to continuing
problems in his home environment. He had been a successful
resident at this school when he was convicted for the joyriding
This Court finds that the imposition of two criminal history
points is unwarranted because Brock was not sentenced to a term
of at least sixty days in a "prison-like facility." Johnson at
155. He was sentenced to a limited secure facility, and the
length of confinement was not directly related to the gravity of
the offense but rather was governed by his family circumstances
and his special personal needs. Furthermore, had Brock's juvenile delinquent records been
sealed pursuant to New York state law, no criminal history points
would have been assigned. See United States v. Beaulieau,
959 F.2d 375 (2d Cir. 1992). Though Brock's rap sheet does not
reflect the sentence imposed for the joyriding offense, it seems
that his juvenile record has not been sealed as the New York City
Probation Department in the Bronx furnished the necessary
Taking the foregoing into account, only one criminal history
point is assigned to Brock for his 1999 joyriding offense. Thus,
he is eligible for the two level reduction under the Guideline's
safety valve provision pursuant to U.S.S.G. § 5C1.2(a).
Minor Role Reduction
Brock 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, Brock 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 Brock 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).
Brock 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 Brock, 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, Brock
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,
Brock has not demonstrated that he qualifies for a minor-role
reduction of his offense level.
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).
Brock 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 Brock'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. § 5E1.6, 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).
Brock lacked familial support and guidance as a child. His
mother was addicted to crack cocaine, angel dust, and acid. She
served 17 months in jail on robbery charges and sustained arrests
for prostitution. Brock never knew his biological father.
Brock was raised by his paternal grandparents from the age of
two and has never developed a close relationship with his mother.
As his grandparents aged, they could not supervise Brock
adequately or control his growing truancy, and he voluntarily was
placed in the aforementioned juvenile residential school and
treatment center by family services.
By age twelve, Brock was a full-fledged drug addict, using
marijuana regularly. By age fifteen, he was using ecstasy daily.
Brock also reports excessive use of alcohol. He received
substance abuse treatment while at the juvenile school and treatment center, but his drug use never ceased for any
significant sustained period of time.
He has received sporadic mental health treatment through his
childhood and teenage years. He was diagnosed with Attention
Deficit Disorder at the age of 10 and subsequently, at the age of
15, he was prescribed with psychotropic drugs. Brock discontinued
his medication after suffering from the drugs' side-effects, and
has not received any additional treatment in the ensuing years.
Brock dropped out of high school before graduating. He has
minimal education and few marketable skills. With such limited
employment opportunities, he had virtually no job prospects and
sold drugs with the Organization to support his drug addiction.
Brock has one adult misdemeanor conviction for Criminal
Facilitation in the Fourth Degree arising from his participation
with the Daly Avenue Organization. He received a sentence of time
served, which, by the time of his release, totaled six days in
jail. The prison time currently facing Brock is more than 300
times greater than any punishment he has served previously;
imposing such a sentence 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 Brock'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 Brock, are
not subject to the statutory minimum mandatory 120 months
incarceration. All of Brock'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.
Brock's similarly situated co-defendants were involved in the
conspiracy for a comparable length of time as Brock, and, like
Brock, 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 Brock'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, Brock is sentenced to 60 months imprisonment and five years supervised release. As Brock 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 Brock 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, Brock 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
The mandatory drug testing condition is suspended due to
imposition of a special condition requiring drug treatment and
Brock 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. Brock 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.
Brock 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.