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October 12, 2005.


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


The resentencing of defendant Kaseem Stukes ("Stukes") has been set by agreement of the parties following the procedures set forth in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). The Sentencing Guidelines ("the Guidelines") calculation was set forth in the prior sentencing opinion ("the opinion") of November 23, 2004, see United States v. Stukes, No. 03 Cr. 601 (RWS), 2004 U.S. Dist. LEXIS 23945 (S.D.N.Y. 2004), familiarity with which is assumed. The November 2004 opinion determined the offense level for the distribution of 2.6872 grams of crack cocaine to be 20. Combined with the related charge of possession of a firearm by a convicted felon, of which the defendant was also found guilty, defendant's offense level was determined to be 21, resulting in a sentence range of 46 to 57 months, to which the mandatory minimum to be imposed on Count Two must be added.

On September 30, 2005, the government presented the testimony of a cooperating witness, who was familiar with Stukes, the distribution of drugs in the projects where Stukes lived, and Stukes' activity in that regard. The witness was also familiar with the gang activity in that area and testified that Stukes was not a member of the organizations.

  Based upon the testimony of the witness it can be concluded on at least several occasions Stukes' conduct indicated that he engaged in drug sales in addition to those which were the subject of the indictment and for which he was tried. However, the controlling Guidelines calculation remains based upon the sale of 2.6872 grams for which Stukes was convicted.

  The Sentencing Framework

  Subsequent to the imposition of Stukes' sentence in November, 2004, the Supreme Court decided United States v. Booker, 125 S. Ct. 738 (2005), which held that the mandatory nature of the Guidelines violated the Sixth Amendment and accordingly severed 18 U.S.C. § 3553(b)(1) from the Guidelines. Pursuant to the Supreme Court's decision in Booker and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), the sentence to be imposed shall now be reached through consideration of all of the factors identified in 18 U.S.C. § 3553(a), including the advisory Sentencing Guidelines (the "Guidelines") establishing 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 108.

  The 18 U.S.C. § 3553(a) Factors

  Pursuant to 18 U.S.C. § 3553(a)(5) and (6), imposition of a non-Guidelines sentence is warranted. Since Booker, a number of courts, concerned by the disparity between crack and cocaine powder sentences imposed under the Guidelines, have imposed non-Guidelines sentences in cases involving crack. See, e.g., U.S. v. Castillo, No. 03 CR. 835 (RWS), 2005 WL 1214280 (S.D.N.Y. May 20, 2005); Simon v. U.S., 361 F. Supp.2d 35 (E.D.N.Y. 2005); U.S. v. Smith, 359 F. Supp. 2d 771 (E.D. Wis. 2005). As stated by the Smith court:
The sentence called for by the guidelines was driven largely by the weight of the drugs recovered from defendant's house. And, because defendant possessed crack cocaine, the sentence was greatly enhanced. As is now notorious, the guidelines create a 100 to 1 ratio between crack and powder cocaine. In other words, the guidelines treat possession of 50 grams of crack cocaine the same as they treat possession of 5000 grams (5 kilograms) of powder cocaine. See U.S.S.G. § 2D1.1(c)(4). Thus, in the present case, the 69.9 grams of crack that defendant possessed converted to 1399.80 kilograms of THC, while the 653.19 grams of powder converted to just 130.63 kilograms of THC.
Courts, commentators and the Sentencing Commission have long criticized this disparity, which lacks persuasive penological or scientific justification, and creates a racially disparate impact in federal sentencing.
Smith, 359 F. Supp. 2d at 777 (quoting, inter alia, United States v. Dumas, 64 F.3d 1427, 1432 (9th Cir. 1995) (Boochever, J., concurring) and United States v. Willis, 967 F.2d 1220, 1226 (8th Cir. 1992).

  Based on recent proposals by the Sentencing Commission, the Smith court imposed a sentence based on a 20 to 1 ratio between crack and powder cocaine. Use of such a ratio in the present case will mitigate the disparity between this sentence and one imposed on a defendant that engaged in substantially similar conduct that involved powder cocaine rather than crack. It will also further the policy considerations highlighted by the Sentencing Commission, see Simon, 361 F. Supp. 2d at 43, while still achieving the level of deterrence necessary to protect the public.

  The Sentence

  For the purposes of calculating the offense level under the Guidelines, Counts One and Four remain grouped together. See § 3D1.2(d). Stukes was convicted of distribution and possession of 2.6872 grams of crack cocaine. Treating it like powder cocaine, and based upon a ratio of 20:1, Stukes sold the equivalent of 53.744 grams of powder cocaine (2.6872 × 20 = 53.7440), resulting in an offense level of 16. See § 2D1.1.

  Pursuant to § 3D1.2, Count Three (possession of a firearm by a convicted felon) cannot be grouped with Counts One and Four for the purpose of calculating offense level. Rather, Count Three is treated as a second offense group and its offense level is calculated separately. The guidelines range applicable to violations of 18 USC § 922(g) is found in § 2K2.1. Because the defendant was a prohibited person at the time he committed the instant offense, the base offense level, pursuant to § 2K2.1(a)(6)(A), is 14.

  Section 3D1.4, provides a formula for determining the combined offense level based on the separately calculated offense levels for the above-described two groups of offenses. In essence, the combined offense level is determined by stepping up the highest offense level based on the number of other groups of offenses and the severity of those other offenses. First, the group with the highest offense level is ascribed one unit. Next, each of the other groups of offenses is ascribed a prescribed number of units, based on the relative severity of that group's offense level. Here, the second group (Count Three) is ascribed one unit because its offense level is one to four levels less serious than that of the group with the highest offense level. The total number of units generated by all offense groups — in this case, two — is translated into an increase in offense level for the highest single offense level among the groups. Based on § 3D1.4, two units translates into an increase of two offense levels. Therefore, the highest offense level among the groups (in this case, 16) is stepped up by two levels. The result is a combined offense level is 18.

  Based upon a Criminal History Category of III, see Stukes, at *5-6, the guidelines range for an offense level of 18 is 33 to 41 months. For the reasons stated above, Stukes is hereby resentenced to 33 months on Counts One and Four and the mandatory minimum sentence of sixty months on Count Two, to run consecutively to the sentence imposed on Counts One and Four. Therefore, in accordance with the above, the Court hereby ...

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