United States District Court, S.D. New York
November 17, 2005.
UNITED STATES OF AMERICA,
MIGUEL ANDRES ENRIQUEZ, a/k/a MIGUEL ORTIZ, Defendant.
The opinion of the court was delivered by: ROBERT SWEET, District Judge
Defendant Miguel Andres Enriquez, also known as Miguel Ortiz,
(hereinafter "Enriquez"), pleaded guilty on June 26, 2003 to the
following: (1) conspiracy to distribute and possess with intent
to distribute cocaine and heroin, in violation of 21 U.S.C. 846
(Count 1); (2) possession of a firearm during and in relation to
a drug trafficking crime, in violation of 18 U.S.C. 924(c) (Count
2); and (3) illegal reentry, in violation of 8 U.S.C. 1326(a),
(b)(2) (Count 3). For the reasons set forth below, Enriquez will
be sentenced to 300 months of imprisonment, to be followed by a
ten-year term of supervised release, subject to the sentencing
hearing now set for November 18, 2005. A special assessment fee
of $300 is mandatory and will be due immediately. Prior Proceedings
On November 6, 2002, Enriquez was arrested by law enforcement
after being observed facilitating and participating in a drug
sale. The government filed a complaint on November 7, 2002 and
subsequently filed an indictment on December 5, 2002. Enriquez
entered a guilty plea on June 26, 2003, which this Court accepted
on July 9, 2003, and currently Enriquez is scheduled for
sentencing on November 18, 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
(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 defendant stated that he was born on January 16, 1968, in
the Dominican Republic. He is the second of four children born to the union of Pascual Henriquez, age 58, a
factory owner, and Ramona Cabrera, age 54, a homemaker. The
defendant stated that his parents remain together and reside in
the Dominican Republic.
The defendant advised that he had a difficult childhood. His
father was very strict and believed in corporal punishment. The
defendant stated that if he or his siblings broke his father's
rules, they would be beaten, often severely, a with a belt.
Enriquez stated that at age 18, his father kicked him out of
the home. It was at that time the defendant came to the United
States seeking economic opportunities. According to government
records, the defendant entered the United States under the name
Miguel Andres Henriquez on September 1, 1986. The defendant was
deported on May 13, 1993 to the Dominican Republic, and he
subsequently re-entered the United States illegally in September
or October of 2000.
The defendant advised that when he first came to New York, he
settled in Brooklyn and lived in a small apartment with three
other families sleeping on the floor. The defendant advised that
during that time he worked in a local grocery store. According to
the defendant, it was during that time that he was introduced to
the drug business. He advised that he married Wanda Tavares on November 6, 1998 in
the Dominican Republic. Ms. Tavares is a supervisor with Jet Blue
Airline and she is also an architect. From their marriage they
have three children: Estafania, age 16, Chelsea, age 12 and
Andres, age 5. The children live in the Dominican Republic with
Enriquez stated that he used marijuana beginning at the age of
19, and that he last used marijuana in 1987. The defendant also
advised that he used cocaine for one year beginning at age 19.
The defendant stated that he completed a drug treatment program
in the Bronx while he was on parole; however, he could not recall
the name of the program.
The defendant submitted a written financial statement which
indicated he has no assets or liabilities and a net worth of
The Offense Conduct
The undersigned, having reviewed the Presentence Investigation
Report (hereinafter "PSR") prepared by the United States
Probation Office, relies on certain of the facts as set forth
On November 5, 2002, an individual, who will be referred to as co-conspirator 1 (hereinafter, "CC1"), was
arrested in Manhattan in possession of a duffle bag that
contained approximately 10 kilograms of cocaine. Prior to his
arrest, CC1 was seen by agents of the FBI entering a Chevrolet
Malibu (hereinafter, the "Malibu").
After advising CC1 of his constitutional rights, CC1
voluntarily made a statement in which he said that he had picked
up the 10 kilograms of cocaine from an individual known as
After his arrest, on November 5, 2002, CC1 made a series of
telephone calls to the person he knew as "Miami." These calls
were recorded. During these calls, "Miami" told CC1, in
substance, that he would deliver three kilograms of heroin to CC1
the next day.
On November 6, 2002, CC1 had additional telephone conversations
with "Miami." These calls were also recorded. During these
telephone calls, "Miami" told CC1 that he could only deliver two
kilograms of heroin to CC1 because he had already distributed one
kilogram to someone else. During these telephone calls, "Miami"
and CC1 made arrangements to meet later in the day at a
restaurant in the vicinity of Second Avenue and 66th Street in
Manhattan (hereinafter, the "Restaurant"). Later on November 6, 2002, CC1 went to the Restaurant to meet
with "Miami." While he was there, an individual later identified
as Miguel Andres Enriquez, a/k/a "Miguel Ortiz," a/k/a "Miami,"
arrived and met with CC1. According to CC1, during this meeting
Enriquez placed a telephone call to another individual. After
this call, Enriquez told CC1 that the heroin was there and that
CC1 could go get it.
During this time, FBI agents conducting surveillance saw the
Malibu pull up and park in the vicinity of Second Avenue and 67th
Street. CC1 left the meeting at the Restaurant and walked towards
the Malibu. As he did so, the headlights on the Malibu flashed
several times. CC1 entered the Malibu and met with an individual
later identified as Antonio Santana. According to CC1, Santana
was the same individual with whom he had met the day before, when
he picked up the 10 kilograms of cocaine.
After talking to Santana, CC1 exited the car and walked around
to the trunk where he removed a bag (hereinafter, the "Bag").
After he removed the Bag, agents moved in and placed Santana
under arrest. At approximately the same time, agents placed
Enriquez under arrest as he was leaving the Restaurant and
entering his car.
Field tests conducted on the substance found inside the Bag confirmed that the substance had a gross weight of
approximately two kilograms and that it contained heroin.
In addition to the above-described conduct, Enriquez has
admitted his participation in brokering many large cocaine deals
and several smaller heroin deals with suppliers stationed in both
the Dominican Republic and in the United States. Moreover, he has
advised that he possessed a firearm that was used to further the
goals of the drug conspiracy. Finally, he has conceded that he
re-entered the United States illegally in September or October
2000, after being deported in 1993 following his conviction for
Attempted Criminal Sale of a Controlled Substance in the First
The Relevant Statutory Provisions
The statutory minimum term of imprisonment for Count One of the
indictment is twenty years and the maximum term is life pursuant
to 21 U.S.C. §§ 846 and 841 (b) (1) (A) and enhanced penalties
pursuant to 21 U.S.C. § 851. The statutory minimum term of
imprisonment for Count Two is five years, and the maximum term is
life, to run consecutive to any other term imposed pursuant to
18 U.S.C. § 924(c). The statutory maximum term of imprisonment for
Count Three is twenty years pursuant to 8 U.S.C. §§ 1326 (a) and (b) (2).
If a term of imprisonment is imposed under Count One, the Court
subsequently shall impose a term of supervised release of at
least ten years pursuant to 21 U.S.C. §§ 846 and 851. If a term
of imprisonment is imposed under Count Two, the Court
subsequently shall impose a term of supervised release of not
more than five years pursuant to 18 U.S.C. § 3583(b)(1). And, if
a term of imprisonment is imposed under Count Three, the Court
subsequently shall impose a term of supervised release of not
more than three years pursuant to 18 U.S.C. § 3583(b)(2).
Multiple terms of supervised release run concurrently pursuant to
18 U.S.C. § 3624(e).
Enriquez is not eligible for probation because the charged
offenses for Counts One and Two are ones for which probation has
been expressly precluded by statute pursuant to 18 U.S.C. § 3561
(a) (2), 21 U.S.C. § 846, and 18 U.S.C. § 924(c).
The statutory maximum fine is $8 million, pursuant to
21 U.S.C. §§ 846 and 851. A special assessment of $100 is required on each
count, totaling $300. See 18 U.S.C. § 3013.
Since this is Enriquez's second criminal conviction for
distribution of a controlled substance, he may be declared
ineligible for any or all federal benefits, as determined by the Court pursuant to 21 U.S.C. § 862 (a) (1) (B). 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 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. §
1B1.11 (b) (1). For Count One, which charges conspiracy to distribute and
possess with intent to distribute cocaine and heroin, the
guideline for a violation of 21 U.S.C. §§ 841 (b) (1) (A) and 846
is found in U.S.S.G. § 2D1.1, which specifies that the base
offense level is set in accordance with the Drug Quantity Table
under U.S.S.G. § 2D1.1 (c) (11). The PSR indicates that Enriquez
should be held accountable for more than 150 kilograms of cocaine
and approximately 20 kilograms of heroin. The different drugs are
converted into their marijuana equivalents. The total is 50,000
kilograms of marijuana. In light of this latter amount, and
pursuant to the Drug Quantity Table, the base offense level is
For Count Two, which charges possession of a firearm during and
in relation to a drug trafficking crime in violation of
8 U.S.C. § 924(c), a guideline computation is not included since the
guideline sentence for this count is a mandatory minimum term
required by statute pursuant to U.S.S.G. § 2K2.4 (b).
For Count Three, which charges illegal re-entry, the guideline
violation of 8 U.S.C. §§ 1326(a) and (b) (2) is found in U.S.S.G.
§ 2L1.2(a) and warrants a base offense level of 8. As Enriquez
had been deported previously after a conviction for a drug
trafficking offense for which the sentence imposed exceeded 13
months, a 16 level increase is required under U.S.S.G. § 2L1.2(b)
(1) (A). As such, the total offense level for Count Three is 24.
It is noted that pursuant to the grouping rules set forth in
U.S.S.G § 3D1.1, Counts One and Three cannot be grouped, and,
instead, each count will form its own group.
According to the multiple count adjustment calculated pursuant
to U.S.S.G. § 3D1.4, the combined adjusted offense level for
Counts One and Three is 38. A three level downward departure is
applied under U.S.S.G. §§ 3E.1.1(a) and (b), based on Enriquez's
plea allocution and his timely notification of his intention to
plead guilty which allowed the government to allocate its
resources more efficiently. Thus, the total offense level is 35.
Enriquez has three criminal history points, pursuant to
U.S.S.G. §§ 4A1.1(a) and 4A1.2 (e) (1), arising out of his prior
narcotics conviction in 1987 for the Attempted Criminal Sale of a
Controlled Substance in the First Degree. He was released on
lifetime parole on September 24, 1991 and subsequently deported
to the Dominican Republic on May 13, 1993.
At the time the instant offense was committed, Enriquez was on
parole. Pursuant to U.S.S.G. § 4A1.1 (d), two criminal history
points are added. As such, Enriquez totals five criminal history
points and carries a Criminal History Category of III. Based on a total offense level of 35 and a Criminal History
Category of III, the guideline range for imprisonment 210 to 262
months. However, pursuant to U.S.S.G. § 5G1.1, the sentence
imposed (absent a departure from the applicable range) shall not
be less than any statutorily required minimum sentence. In this
instance, the statutory minimum is 20 years, or 240 months. As
such, the guideline range becomes 240 to 262 months, to be
followed by a mandatory minimum and consecutive term of 5 years
(or 60 months) as required by Count Two.
For Count One, the guideline range for a term of supervised
release is ten years, the minimum required by statute, pursuant
to U.S.S.G. § 5D1.2(b). For Count Two, the guideline range for a
term of supervised release is at least three years but not more
than five years, pursuant to U.S.S.G. § 5D1.2(a) (1). For Count
Three, the guideline range for a term of supervised release is at
least two years but not more than three years, pursuant to
U.S.S.G. § 5D1.2(a) (2). Supervised release is required if the
Court imposes a term of imprisonment of more than one year or
when required by statute pursuant to U.S.S.G. § 5D1.1(a).
Because the applicable guideline range is in Zone D of the
Sentencing Table, Enriquez is not eligible for probation pursuant
to U.S.S.G. § 5B1.1, application note #2. The fine range for the instant offense is from $15,000 to
$8,000,000 pursuant to U.S.S.G. §§ 5E1.2(c) (3) (A) and (c) (4)
Subject to the defendant's ability to pay, in imposing a fine,
the Court shall consider the expected costs to the Government of
any imprisonment, probation, or supervised release 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 $1,933.80 to be used for imprisonment, a monthly
cost of $287.73 for supervision, and a monthly cost of $1,675.23
for community confinement.
Pursuant to U.S.S.G. § 5F1.6, the Court may deny eligibility
for certain Federal benefits of any individual 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). Furthermore, pursuant to § 3553 (a) (5) (A), "any
pertinent policy statement issued by the Sentencing Commission"
also must be considered. Taking the aforementioned factors into
account, a Guideline sentence is warranted in this case, subject
to the sentencing hearing scheduled for November 18, 2005.
For the instant offense, Enriquez will be sentenced to 300
months of imprisonment and ten years of supervised release. As
Enriquez 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 $300 payable to the United States
is mandatory and due immediately. Because Enriquez 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, Enriquez 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
Enriquez 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. Enriquez 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.
Enriquez 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 November 18, 2005.
It is so ordered.
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