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U.S. v. DARWICHE

December 12, 2005.

UNITED STATES OF AMERICA,
v.
MOHAMMED DARWICHE, Defendant.



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

SENTENCING OPINION

Defendant Mohammed Darwiche ("Darwiche") has pleaded guilty to trafficking in counterfeit goods in violation of 18 U.S.C. § 2320, a Class C felony. Darwiche is hereby sentenced to a term of imprisonment of 366 days. Two years supervised release is also imposed.

Prior Proceedings

  Darwiche was arrested on January 22, 2004 and released on that same day on a personal recognizance bond in the amount of $100,000. On August 18, 2004, an indictment was filed in the Southern District of New York, charging that from at least March 2003 through January 2004, in the Southern District of New York, Darwiche trafficked in handbags and other consumer leather goods, as well as tags for such goods, bearing counterfeit trademarked designs that he manufactured, in violation of 18 U.S.C. § 2320. On May 26, 2005, Darwiche appeared before the Honorable Frank Maas in the Southern District of New York and allocuted to his criminal conduct as charged. The defendant's sentencing has been scheduled for December 12, 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

  Darwiche was reportedly born on August 25, 1955, in Marwania, Lebanon, to the marital union of Ali Ahmed Darwiche, deceased, and Safieh Darwiche, nee Wazni, age 81. The defendant's father died of a heart attack at the age of 63 in 1986, and previously worked as a merchant. Darwiche's mother is a homemaker who resides in Lebanon, and presently suffers from diabetes, high blood pressure, and a fractured leg. The defendant described a happy childhood, during which he experienced close relationships with his parents and siblings.

  Darwiche informed that he immigrated to the U.S. by virtue of a tourist visa in 1977, and obtained his residency in approximately 1983. According to the Bureau of Citizenship and Immigration Services (BCIS), the defendant officially entered the U.S. on March 3, 1982, and is legally residing in the U.S. as a permanent resident. Darwiche is amenable to removal proceedings due to his conviction in the instant offense.

  The defendant is married to Rajaa Darwiche, nee Karout, age 40. Darwiche informed that he met his wife upon returning to Lebanon in 1986, following his father's death and that she was reared in the same community. The defendant stated that he applied for his wife to come to the U.S. in 1987, by virtue of a tourist visa and that she subsequently became a permanent resident in approximately 1988. Darwiche related that his wife is the legal owner of their 99-cent store business and that on occasion, she works in the store. The defendant stated that with the exception of suffering from high blood pressure, his wife is otherwise healthy.

  The defendant reported the following eight children by virtue of his marital union, all of whom reside with him and his wife, and are well-adjusted and healthy: Diana, age 17; Stephanie, age 15; Amanda, age 13; Kassim, age 9; Lina, age 7; Lama, age 6; Hussein, age 3; and Reem, age 16 months.

  From 2000 to December 2004, the defendant and his family resided in a private house located at 75 Terrace Avenue, Jersey City, NJ. The home was purchased by Darwiche on November 3, 2000, for $280,000, and ultimately sold on August 25, 2004, for $575,000. Darwiche stated that the property had been transferred under his wife's name following a re-finance prior to its sale, and that the money was used to purchase their new home, as well as to open their current business.

  Since December 2004, Darwiche and his family have been living in a private, two-family house located at 121 Terrace Avenue, Jersey City, NJ. The residence was purchased on October 21, 2004, for $510,000, and is in the name of Darwiche's wife. Darwiche and his family occupy the basement, first floor and second floor of the home, while the third floor is rented to tenants for $1,800 per month. On January 27, 2005, a conventional 30-year mortgage was secured on the property through First National Bank, located in Scottsdale, AZ, in the amount of $408,000. The monthly mortgage payment is $2,990.44.

  Darwiche related that his wife and three older daughters are aware of the charges against him and have been emotionally supportive. The defendant informed that his family members remain somber and are concerned about the outcome of his case.

  Darwiche reported no history of mental or emotional problems, and has never been treated for such problems.

  The defendant disclaimed the use of drugs or alcohol. A urinalysis conducted at the conclusion of the pre-sentence interview tested negative for illicit substance abuse.

  The defendant informed that he completed five years of elementary school and one year of intermediate school at the Amarwania Public School, located in Lebanon, equating it to the U.S. equivalent of a sixth grade education. Darwiche explained that he quit school at the age of 13 in 1968, in order to work and help his parents financially support their family.

  Darwiche stated that upon immigrating to the U.S. in 1977, he attempted to learn English over a one-year period through courses at Hunter College and New York University (NYU), both of which are located in New York, NY, as well as Brooklyn College Academy, located in Brooklyn, NY. Darwiche informed that although he can speak and read English minimally, he cannot write in this language.

  Since February 2005, the defendant has been employed as the de facto owner of A99-Cent Paradise, located at 3495 Kennedy Boulevard, Jersey City, NJ. Darwiche informed that the business is legally in his wife's name at her insistence, but that he runs the day-to-day operation with the assistance of various family members. The defendant stated that he works full-time, seven days per week, and that all of his earnings, which amount to approximately $365.13 per week, are used for various household expenses. Additionally, Darwiche's ...


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