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United States v. Hodges

February 12, 2009


The opinion of the court was delivered by: Sifton, Senior Judge


On September 14, 2007, Bruce Hodges (the "defendant") was indicted on one count of heroin importation, one count of conspiracy to import heroin, one count of attempted possession of heroin and one count of conspiracy to possess heroin. Defendant pled guilty on January 28, 2008 to a lesser-included offense within Count One of the indictment, charging him with conspiracy to import an unspecified amount of heroin into the United States, in violation of 21 U.S.C. § 963. Defendant is presently before this Court for sentencing. For the reasons that follow, I will consider a non-Guideline sentence for defendant.


The Supreme Court held in United States v. Booker, 543 U.S. 220 (2005), that the mandatory nature of the United States Sentencing Guidelines violated the Sixth Amendment. In its remedy opinion, the Court severed 18 U.S.C. § 3553(b)(1), which had rendered the Guidelines binding on federal sentences. Id. at764. This left 18 U.S.C. § 3553(a) in effect.*fn1

In a series of recent decisions, the Supreme Court and the Second Circuit confirmed that under the advisory Guidelines regime, "a sentencing judge has very wide latitude to decide the proper degree of punishment for an individual offender and a particular crime." United States v. Cavera, 550 F.3d 180, 188 (2d Cir. 2008); see also generally Gall v. United States, 128 S.Ct. 586 (2007); Kimbrough v. United States, 128 S.Ct. 558 (2007); Rita v. United States, 551 U.S. 338 (2007). Nevertheless, the sentencing judge must comply with certain procedural requirements. First, the judge must calculate the -applicable Sentencing Guidelines range after making such factual findings as are necessary. United States v. Crosby, 397 F.3d 103, 111-12 (2d Cir. 2005); Cavera, 550 F.3d at 189. The court must then consider the Guidelines range, together with applicable policy statements issued by the Sentencing Commission, as required by § 3553(a)(5). Crosby, 397 F.3d at 112. The court may not presume that the Guidelines sentence is reasonable, but "must instead conduct its own independent review of the sentencing factors, aided by that arguments of the prosecution and the defense." Cavera, 550 F.3d at 189. In addition, "a district court may vary from the Guidelines range based solely on a policy disagreement with the Guidelines, even where that disagreement applies to a wide class of offenders or offenses." Id. at 191. After considering the Guidelines range, the court must consider the relevant factors listed in § 3553(a). Crosby, 397 F.3d at 112-13. Finally, the court must explain the reasons for its chosen sentence, including an explanation for any deviation from the Guidelines range. Cavera, 550 F.3d at 190. Characteristics of the Defendant The following facts are drawn from the defendant's Presentence Investigation Report ("PSR") and the parties' submissions in connection with this matter. They are undisputed except where noted.

Defendant was born in 1965 in Brooklyn, New York, and is now 43 years old. He experienced an itinerant childhood with his mother, his sister and three half-siblings, who were fathered by three different men. At the age of 12, he began using marijuana, and at the age of 15, he was using marijuana on a daily basis, along with angel dust, heroin, powder cocaine and crack cocaine. Defendant was arrested several times as a juvenile for crimes such as robbery, unlicensed driving, attempted theft, drug sale, and burglary, which led to a few convictions and a custodial term in a juvenile detention facility. While in this facility, defendant earned his GED.

At the age of 20, defendant was arrested, along with his mother, sister and two half-sisters, subsequent to a 1986 raid of multiple residences and vehicles, which uncovered a large quantity of controlled substances, related paraphernalia, firearms, stolen property and large sums of currency. Defendant was charged with several drug offenses and a stolen property offense (but no crimes involving firearms or violence) and was convicted after trial on all counts. He was sentenced to a fifteen-year custodial sentence, out of which he served ten years. While in prison, defendant completed a substance abuse program, became a substance abuse counselor, and completed a number of college courses at Mercer Community College, stopping nine credits short of an associate degree. Defendant maintains that when he left prison in 1996, he resolved to remain drug-free, and that he did not resume using drugs until 2005. As noted below, however, he was arrested for attempted sale of drugs in 2001.

After leaving prison, defendant moved in with his girlfriend, Michelle Bivens. He became a father figure to Ms. Bivens' two children, as well as a father to a daughter with Ms. Bivens. In addition, the couple took custody of defendant's son from a teenage relationship, of whose existence defendant did not learn until the child was seven years old. A few years later, the couple took in defendant's 12- and 14-year-old nephews, as their mother, defendant's sister, was struggling with drug addiction. Ms. Bivens, her children, defendant's daughter and nephews, defendant's sister, and a number of other relatives and friends have submitted detailed letters to the Court attesting to defendant's commitment as a father and attributing the children's success in school and college to defendant's support and encouragement.

In 2000, defendant obtained and began to run his own cleaning franchise. In 2001, however, Ms. Bivens was hospitalized with life-threatening complications from surgery. Defendant remained with Ms. Bivens in the hospital for two months, and upon her release, ceased working to assist her during her intensive physical therapy. As a result, his business foundered. Also in 2001, defendant was arrested in Florida for an attempted drug sale. He was convicted and received a sentence of three years' probation. There is no evidence that the crime involved actual or threatened violence or the use of firearms. Defendant states that the 2001 arrest prompted him to focus on leading a law-abiding life and running his cleaning business.

In 2002, defendant obtained another cleaning franchise, which he owned and operated from 2002 to 2006. However, defendant's personal life took a turn for the worse in 2005. Defendant reunited with Michael Harris, his older brother and co-defendant in the offense at issue here, who had been raised by an adopted family. Defendant's business faltered, and he began using drugs again. His relationship with Ms. Bivens deteriorated and eventually ended when Mr. Harris informed Ms. Bivens that defendant was involved with another woman. Defendant thereafter lodged with relatives and friends, finally moving in with co-defendant Belinda Cueto, with whom he was romantically involved. Defendant and Ms. Cueto engaged in a "drug lifestyle" together, sometimes spending $50 to $300 a day on cocaine.

The Instant Offense

In August of 2007, with the encouragement of his brother, co-defendant Harris, defendant contacted a former prison companion and drug dealer in Colombia looking for work. He was told to expect a call within a few days, regarding a package that defendant would pick up and either deliver to another person, or hold and wait for another person to retrieve. For his participation, defendant expected to receive an unspecified sum of money, which he states he intended to split with co-defendant Harris.

On August 16, 2007, defendant received a call from co-defendant Cesar Navia, who used a pre-arranged code to advise defendant that he was the courier sent by the contact in Colombia. Because defendant does not speak Spanish, he asked his girlfriend, co-defendant Cueto, to translate the calls for him. Unbeknownst to defendant, co-defendant Navia had been arrested and detained at JFK airport, where he agreed to cooperate with authorities.

Later that day, law enforcement agents observed defendant and co-defendant Cueto enter the hotel where co-defendant Navia had told them he was staying. According to defendant, defendant and co-defendant Cueto decided to leave the hotel because defendant sensed that "everything was not right." Defendant spoke with co-defendant Harris, and according to the PSR, relayed the name of the hotel and co-defendant Navia's room number to him. Defendant maintains ...

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