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U.S. v. EWEN

United States District Court, S.D. New York


December 12, 2005.

UNITED STATES OF AMERICA,
v.
ORRETT EWEN, Defendant.

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

SENTENCING OPINION

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.

Prior Proceedings

  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 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 111.

  The Defendant

  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 Guidelines

  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 thirty-seven.

  Criminal History

  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.

  Sentencing Options

  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.

  The Sentence

  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 residence.

  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.

20051212

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