United States District Court, S.D. New York
December 8, 2005.
UNITED STATES OF AMERICA,
LUIS VALENTIN, Defendant.
The opinion of the court was delivered by: ROBERT SWEET, District Judge
Defendant Luis Valentin ("Valentin") has pleaded guilty to
possession of a controlled substance in violation of
21 U.S.C. § 844, a Class A Misdemeanor. For the reasons set forth below,
Valentin is sentenced to five months imprisonment and a term of
one year of supervised release. In addition, Valentin shall be
required to pay a fine of $1000.
Valentin was arrested by authorities on June 21, 2004. On that
same date he was released on a $100,000 personal recognizance
bond. On March 29, 2005, an information was filed in the Southern
District of New York charging Valentin with possession
approximately three grams of crack cocaine in the vicinity of
East 174th Street and Hoe Avenue in the Bronx on June 16,
2003, a violation of 21 U.S.C. § 844. On March 29, 2005, Valentin appeared before the Honorable Gabriel W. Gorenstein in
the Southern District of New York and allocuted to the above
charge without the benefit of a plea agreement. Valentin is
scheduled to be sentenced on December 8, 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") 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
(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 111.
Valentin was reportedly born on December 18, 1981, in Ponce,
Puerto Rico. The defendant reportedly moved from Puerto Rico to
New York at age four, with his parents. His parents terminated
their relationship when Valentin was approximately eight years
old. Valentin remained in his mother's household and had regular
contact with his father. The defendant described his childhood as
good. He enjoyed attending school and playing the trumpet and drums.
Valentin has never been married. He had been in a consensual
relationship with Shamina Bermudez from 2002 until May 2005. He
indicated that they were having communication problems. This
relationship produced one child. Kimberly Valentin, age 2,
resides with her mother. Bermudez is reportedly not allowing the
defendant visitation with his daughter. Bermudez described her
relationship with Valentin as emotionally and physically abusive.
She indicated that she and the defendant have had relationship
problems since 2004, and that she has an active order of
protection against him at this time. It was reportedly issued in
The defendant reportedly lives in the Bronx with his mother and
siblings. The defendant has always lived with his family.
Valentin indicated that he had problems controlling his temper
as a child. He usually ended up throwing items in the home. He
recalled that this concerned his mother. The defendant said that
after getting angry, he told his mother that he was having
suicidal thoughts, and his mother had him committed at Four Winds
Westchester, a mental-health facility located at 800 Cross River
Road in Katonah, NY. Valentin reportedly remained in the facility
for one month and was treated with psychotropic medication. He returned to his mother's home with prescription
medication, but his mother reportedly had him stop taking the
medication as it made him lethargic and she was afraid for him to
be in the street in that condition. The defendant stated that
after his release from Four Winds and after he stopped taking the
medication, he no longer felt as angry.
Valentin stated that he has been using marijuana since the age
of 14. He reportedly first tried it with some friends and used it
about twice a week, but after about a year his use increased to
daily. The defendant admitted that he continues to smoke it; he
reportedly last smoked it on May 9, 2005. A urinalysis taken on
May 10, 2005, showed positive results for marijuana. The
defendant indicated that he feels that his marijuana use has
never caused him problems and that he can stop at any time. He
has never attended a drug treatment program. Valentin reportedly
does not drink alcohol and has not used any other illicit
Valentin completed the 9th grade at Morris High School located
at 1100 Boston Road in the Bronx. The school verified that he
attended from September 4, 1996 through June 1, 1998. His
cumulative average while attending this school was 23.5 percent.
The defendant was reportedly scheduled to attend a GED and
job-ready program at Fordham University beginning in September
2005. Valentin is currently unemployed and is reportedly supported by
his mother. The defendant worked in construction at his father's
company, Todino Construction, located in the Bronx from 2002
until May 2005, when the business closed. Valentin stated that he
worked about 50 hours a week and earned $1,500 a week. This
employment was off-the-books.
Valentin reported that he worked at Ferrera Bakery located at
213 Grand Street from September 11, 2003, until February 14,
2004. He worked customer service and earned $300 a week. This
employment was reportedly off-the-books.
The Offense Conduct
On June 16, 2003, near 174th Street and Hoe Avenue in the
Bronx, a plainclothes New York City Police Department police
officer observed Valentin place a small plastic bag that
contained a white rock-like substance into his pocket. The
officer approached Valentin and asked him if he had anything in
his pocket, and Valentin removed the bag from his pocket. In the
bag, the officers observed two vials, ten blue bags, six red
bags, and 31 clear bags containing crack. Valentin was arrested
A subsequent laboratory test indicated that the bags and vials
recovered from Valentin contained approximately three grams of crack.
Relevant Statutory Provisions
The maximum term of imprisonment that may be imposed for the
sole Count is one year. See 21 U.S.C. § 844.
If a term of imprisonment is imposed, the Court may impose a
term of supervised release of not more than one year. See
21 U.S.C. § 844.
The defendant is eligible for up to five years' probation.
See 21 U.S.C. § 3561(c)(2).
The minimum fine that may be imposed is $1000. See
21 U.S.C. § 844. The maximum fine that may be imposed is $100,000. See
id. A special assessment of $25 per count is mandatory. See
18 U.S.C. § 3013.
The November 1, 2004 edition of the United States Sentencing
Commission Guidelines Manual ("the Guidelines") has been used in
this case for calculation purposes, in accordance with Guidelines
§ 1B1.11(b)(1). The guideline for a violation of 21 U.S.C. § 844 is found in
U.S.S.G. § 2D2.1. The defendant's criminal activity involved the
possession of three grams of crack cocaine. The base offense
level for this conduct is eight. See U.S.S.G. § 2D2.1 (a) (1).
Based upon his plea allocution, Valentin has shown recognition
of responsibility for his offense. Therefore, his offense level
is reduced by two levels. See § 3E1.1(a). The resulting
adjusted offense level is six.
Valentin was convicted of attempted criminal sale of a
controlled substance in the third degree in Supreme Court, Bronx
County, New York on June 24, 1998. On January 19, 2000, Valentin
was charged with violating the terms of his probation. On May 7,
2002, he was returned on the warrant issued for this violation,
and sentenced to ninety days imprisonment.
Defendant was also found guilty of trespass in Bronx Criminal
Court on August 9, 1999.
The criminal convictions above result in a subtotal criminal
history score of two. The instant offense was committed less than
two years after the defendant's release from custody on July 3, 2002, for the resentence on May 7, 2002. Accordingly, two
criminal history points are added pursuant to U.S.S.G. §
The total number of criminal history points is four. According
to the sentencing table at Chapter 5, Part A, four criminal
history points establish a Criminal History Category of III.
Based upon a total offense level of six and a Criminal History
Category of III, the guideline range for imprisonment is two to
The guideline range for a term of supervised release is one
year. See U.S.S.G. § 5D1.2 (a) (3). If a sentence of
imprisonment of one year or less is imposed, a term of supervised
release is not required, but is optional. See U.S.S.G. § 5D1.1
Because the applicable guideline range is in Zone B of the
Sentencing Table, the defendant is eligible for probation,
provided that the Court imposes a condition that substitutes
intermittent confinement, community confinement, or home
detention for at least two months. See U.S.S.G. § 5B1.1 (a)
(2). If the Court imposes probation, the term must be at least one
year, but not more than five years, because the offense level for
the instant offense is six. See U.S.S.G. § 5B1.2 (a) (1).
The fine range for the instant offenses is from $1,000 to
$5,000. See U.S.S.G. § 5E1.2 (c) (3) (A). 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. See § 5E1.2 (d)
The Remaining Factors of Section 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 (2d 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
Taking the aforementioned factors into account, it is
determined that the imposition of a Guidelines sentence is
appropriate in the instant case.
In accordance with the above, Valentin is hereby sentenced to
five months imprisonment.
Valentin is also hereby sentenced to one year supervised
release. Valentin shall report to the nearest Probation Office
within 72 hours of release from custody, and supervision will be
in the district of his residence. As mandatory conditions of supervised release, Valentin shall
(1) not commit another federal, state, or local crime; (2) not
illegally possess a controlled substance; (3) not possess a
firearm or destructive device; and (4) refrain from any unlawful
use of a controlled substance.
The standard conditions of supervision are imposed in addition
to the following special conditions: (1) the defendant shall
participate in a program approved by the United States Probation
Office, which program may include drug testing to determine
whether the defendant has reverted to using drugs or alcohol, for
which the defendant may be required to contribute to the costs of
in an amount determined by the probation officer, based on his
ability to pay; and (2) the defendant shall submit his person,
residence, place of business, vehicle or any other premises under
his control to a search on the basis that the probation officer
has reasonable belief that contraband or evidence of a violation
of the conditions of release may be found, which search must be
conducted within a reasonable time and in a reasonable manner. Valentin shall also pay to the United States a special
assessment in the amount of $25, which shall be due immediately.
In addition, Valentin shall pay a fine of $1,000.
It is so ordered.
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