United States v. Irving

The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.

ORDER AFFIRMING SENTENCE

I have received defense counsel's sentencing memorandum of April 2, 2007, asking me to re-sentence defendant Derrick Irving in light of United States v. Booker, 543 U.S. 220 (2005) and United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). After review, and after consideration of all the relevant sentencing factors, including those set out in 18 U.S.C. § 3553(a), I hold that the sentence, as originally pronounced on January 22, 2003, and recorded in the judgment dated and filed March 28, 2003, reflects just punishment and will not be changed or modified.

My finding at the Fatico hearing, held prior to sentencing Derrick Irving, that defendant was "an organizer or leader" of an extensive marijuana distribution activity "that involved five or more participants," see United States Sentencing Guidelines § 3B1.1(a), reflects my judgment now just as much as it did then. Mr. Irving kept the books, instructed his brother, cousins, and friend in effective distribution, and attended to the problems of maintenance of active and continuous supply. The tapes that recorded his conversations, and the entries in the books he kept, left no doubt. As counsel observes, Derrick Irving was "a take charge kind of person" and the four-point enhancement substantially affected the punishment, in just the manner that Section 3553 provides. I see no reason to change that ruling.

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