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U.S. v. SANTOS

December 12, 2005.

UNITED STATES OF AMERICA,
v.
BOANERGES SANTOS, Defendant.



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

SENTENCING OPINION

Defendant Boanerges Santos, a/k/a "Alexis Diaz," a/k/a "Boanel Renito," a/k/a "Boanerges Santo," a/k/a "Boarel Renito," ("Santos") has pleaded guilty to illegal reentry after deportation subsequent to an aggravated felony conviction in violation of 8 U.S.C. 1326 (a) and (b) (2), a Class C Felony. Santos will be sentenced to twenty-four months incarceration and to three years supervised release.

Prior Proceedings

  Santos was arrested by New York Police Department officers on December 15, 2004, and remained in New York City custody until May 3, 2005, when he was transferred into federal custody for an alleged violation of federal immigration laws. On May 12, 2005, an indictment was filed charging Santos with unlawfully entering the United States after having been deported from the United States subsequent to convictions on April 10, 1998, in New York County Supreme Court, for criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in the second degree. On May 27, 2005, Santos appeared before the Honorable Henry B. Pitman in the Southern District of New York and allocuted to the criminal conduct charged in the indictment without the benefit of a plea agreement. This Court accepted Santos's plea on June 29, 2005. Santos is scheduled to be sentenced on 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

  Boanerges Santos was born on April 28, 1975, in San Francisco de Macoris, Dominican Republic, to the marital union of Juan Santos Burgos and Dulce Maria Castro. His father resides in New York and works in a bakery. His mother resides in Santo Domingo and owns a small clothing store in the Dominican Republic but lives with her husband, Santos's father, when visiting New York. Santos has one sibling, who lives and works in New York.

  Santos was raised by both of his parents and shares close relationships with his mother, father, and sister. According to the defendant, his parents are Jehovah's Witnesses, and as such, always provided basic necessities for him and his sister while he was growing up and continue to provide him with advisement on a regular basis.

  Santos reported moving from the Dominican Republic to Puerto Rico during 1996. He subsequently moved to New York in 1997, where he remained until he was deported to the Dominican Republic in 2001.

  He has shared a four-year relationship with his girlfriend, who currently lives in Santo Domingo with the defendant's mother and is not currently employed due to a financial crisis in the Dominican Republic. Santos has one child with his long-time girlfriend, a son aged three. His son resides with his mother and paternal grandmother in the Dominican Republic. According to Santos, his son was recently diagnosed with the beginning stages of asthma and now is taking medication to prevent a full-blown case of asthma from developing. The defendant reportedly attended Liceo Bonilla, located in San Franciso de Macoris, for approximately five years. Santos reported completing his third year of the four-year high school program at Liceo Bonilla and has not obtained his high school degree to date.

  According to the defendant, he was licensed as an electrician in 2001 in Santo Domingo, after completing a one-month electrical course. Santos completed two courses in custodial maintenance and grounds keeping while incarcerated in 1998 and 2000.

  Santos has reported a history of alcohol use, although he successfully completed a two-month alcohol treatment program in 2000. It is uncertain whether Santos is a risk for future drug abuse.

  Although Santos has held jobs intermittently over the past four years, since his deportation to the Dominican Republic, Santos was not working immediately prior to his instant arrest and incarceration. Santos also reported that he has no assets and no liabilities. The Offense Conduct

  Santos is a citizen and national of the Dominican Republic, and is not and has never been a citizen of the United States.

  On August 18, 1997, Santos was arrested by the New York City Police Department. In connection with that arrest, he was fingerprinted. On April 10, 1998, he pled guilty to criminal sale of a controlled substance in the third degree in New York Supreme Court.

  On January 13, 1998, he was arrested again by the New York City Police Department. In connection with that arrest, he was fingerprinted once more. On April 10, 1998, in conjunction with the aforementioned charge, he pled guilty to criminal sale of a controlled substance in the second degree in New York Supreme Court.

  On June 9, 2001, Santos was removed from the United States pursuant to an order of removal dated May 24, 2001. In connection with the deportation, a fingerprint was taken from him.

  On December 15, 2004, Santos was arrested by the New York City Police Department in Manhattan for criminal sale of a controlled substance on school grounds. Shortly after his arrest, these charges were dropped. However, as he had been placed on lifetime parole subsequent to his release and prior to his deportation in 2001, the instant arrest triggered a state parole violation, for which he was sentenced to a term of four months incarceration.

  While he was incarcerated pursuant to his parole violation, federal authorities began investigating Santos's immigration status. An FBI agent assigned to Santos's case compared the fingerprints from the August 18, 1997 and January 13, 1998 arrests with those taken for the June 9, 2001 deportation, the December 15, 2004 arrest, and the May 3, ...


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