United States District Court, S.D. New York
December 12, 2005.
UNITED STATES OF AMERICA,
ORRETT EWEN, Defendant.
The opinion of the court was delivered by: ROBERT SWEET, District Judge
Defendant Orrett Ewen ("Ewen") has pleaded guilty to two Counts
of conspiracy to distribute heroin, in violation of
21 U.S.C. §§ 812, 841 (a) (1), 841 (b) (1) (A), and 846, Class A Felonies.
Under the Guidelines and the statutory mandatory minimum
sentences, Ewen would be sentenced to 240 months imprisonment and
five years supervised release. His sentence is subject to
modification at the sentencing hearing currently scheduled for
December 8, 2005.
Ewen was arrested by authorities on August 26, 1998. On
December 5, 2001, an information was filed in the Southern
District of New York charging Ewen with two Counts of conspiracy
to distribute heroin in violation of 21 U.S.C. §§ 812, 841 (a)
(1), 841 (b) (1) (A), and 846. On December 5, 2001, Ewen appeared
before this court and allocuted to the above charges in accordance with
a plea agreement entered into with the Government. Ewen 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.
Ewen was born in Kingston, Jamaica on June 11, 1974. Ewen
indicated that he was raised in Jamaica until the age 9, when he
came to the Bronx, New York to live with his mother, who had
moved there previously. Prior to joining his mother, Ewen was
raised my his grandmother.
Ewen advised that he did not have much of a relationship with
his father. He informed that his mother was supported by welfare benefits when he was a child, but now works
as a secretary. He reports that he maintains a close relationship
with his mother. Ewen also reports that he is bothered that his
father was not involved in his life. He stated that he hasn't
seen his father since he was about thirteen years old.
The defendant has never been married and is not presently
involved in a relationship. He has one child from a prior
relationship who is thirteen years old. Ewen reports that he
hasn't seen his son in about a year and has seen him just twice
since he has been incarcerated.
The defendant has no history of mental of emotional problems.
He admits to the prior use of marijuana, cocaine, and acid. He
informed that he has been smoking marijuana regularly since the
age of thirteen and stated that he generally smoked it on a daily
basis. Ewen reports that he first tried acid when he was a
fourteen years old and used the drug less frequently, mostly on
weekends. Ewen admitted that he last used both marijuana and acid
shortly before his arrest in the instant case. He stated that he
only tried cocaine once, when he was about twenty-two years old.
He further stated that he first tried alcohol when he was about
thirteen years old and generally consumed it on the weekends and
at parties. Ewen advised that he attended one year at Adlai Stevenson High
School in the Bronx, New York and was transferred to a special
education school. He informed that he has difficulty reading and
reads on a third grade level.
The defendant has been incarcerated since August 1998. He
advised that prior to his arrest, he worked loading trucks at the
Hunts Point Market in the Bronx from 1996 until 1997, working a
couple of days a week for about $100 per day. From the ages of
fourteen to seventeen, Ewen reportedly worked for the NYC Summer
Youth Program and performed functions such as gardening and
assisting with the PAL program. He recalled earning about $100
per week at this job.
The Offense Conduct
The facts of this case are adopted as set forth in the
Presentence Investigation report dated September 21, 2005.
Relevant Statutory Provisions
Under Counts One and Two, the mandatory minimum term of
imprisonment that must be imposed is ten years and the maximum
term of imprisonment that may be imposed is life imprisonment.
See 21 U.S.C. § 841(b) (1) (A). If a term of imprisonment is imposed for Counts One or Two, a
term of at least five years' supervised release is required on
each count for which a sentence of imprisonment is imposed. See
21 U.S.C. § 841 (b) (1) (A). Such periods of supervised release
are to run concurrently. See 18 U.S.C. § 3624(e).
The maximum fine that may be imposed under Counts One and Two
is $4 million per count. See 21 U.S.C. § 841(b) (1) (A). A
special assessment of $100 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
§ U.S.S.G. 1B1.11(b) (1).
The guideline for a violation of 21 U.S.C. § 841 (b) (1) (A)
and 21 U.S.C. § 841 (b) (1) (C) is found in U.S.S.G. § 2D1.1. The
defendant's criminal activity, including relevant conduct
pursuant to U.S.S.G. § 1B1.3, involved the possession and
distribution of at least 30 kilograms of heroin. The offense
level specified in the Drug Quantity Table under U.S.S.G. §
2D1.1(c) (1) sets a base offense level of thirty-eight for this conduct. A two-level increase is warranted because Ewen was a
manager/supervisor in a criminal activity other than described in
U.S.S.G. § 3B1(a) and (b). Accordingly, the offense is increased
by two levels. See U.S.S.G. § 3B1.1(c). The resulting offense
level for Counts One and Two is forty.
Ewen has shown recognition of responsibility for his offense.
Therefore, because his base offense level is sixteen or greater,
his offense level is reduced by three levels. See U.S.S.G. §
3E1.1(a) and (b). The resulting adjusted offense level is
Ewen was convicted of attempted assault in the third degree in
Bronx County Criminal Court on June 28, 1997. This conviction
results in one criminal history point. According to the
sentencing table at Chapter 5, Part A, one criminal history point
establishes a Criminal History Category of I.
Based upon a total offense level of thirty-seven and a Criminal
History Category of I, the guideline range for imprisonment is
240 to 262 months. For Counts One and Two, the guideline range for a term of
supervised release is five years per count, the minimum required
by statute. See U.S.S.G. § 5D1.2(c).
Because the applicable guideline range is in Zone D of the
Sentencing Table, the defendant is not eligible for probation,
pursuant to U.S.S.G. § 5B1.1, Application Note #2.
The fine range for the instant offenses is from $20,000 to $
million. See 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. See U.S.S.G. §
5E1.2 (d) (7).
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 considered.
Taking the aforementioned factors into account, as well as the
fact that the government has submitted a 5K1 letter to reflect
Ewen's substantial assistance to the government, the Guideline
sentence will be determined at the sentencing hearing scheduled
for December 8, 2005.
For the instant offenses, Ewen under a Guideline sentence would
be sentenced to 240 months.
A term of supervised release of five years on Counts One and
Two each is imposed, to run concurrently. Ewen shall report to
the nearest Probation Office within 72 hours of release from
custody, and supervision will be in the district of his
As mandatory conditions of supervised release, Ewen 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. Ewen shall also pay to the United States a special assessment
in the amount of $200, $100 per count, which shall be due
immediately. Given Ewen's inability to pay a fine, the fine in
this case is waived.
It is so ordered.
© 1992-2006 VersusLaw Inc.