United States District Court, S.D. New York
MEMORANDUM OPINION & ORDER
PAUL G. GARDEPHE, District Judge.
This matter is before the Court on the Second Circuit's remand pursuant to United States v. Crosby , 397 F.3d 103 (2d Cir.2005) (Dkt. No. 343) and defense counsel's request for resentencing (Def. Ltr. Jan. 16, 2013). Defendant Shirley Calcano was sentenced to 480 months - 40 years' imprisonment - and four years' supervised release after a jury convicted her of engaging in a violent crime in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(3), and narcotics conspiracy, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). For the reasons set forth below, the Court concludes that a non-trivially different sentence would have been imposed had the Guidelines been advisory at the time Calcano was sentenced. Accordingly, Calcano's motion for resentencing is granted.
On June 15, 1998, a grand jury returned an indictment against Calcano and others arising out of their activities as members of a criminal enterprise known as the 165th Street Organization ("the Organization"). (United States v. Ramirez, S1 98 Cr. 438 (Dkt. No. 13)) The Organization, which operated primarily in the Bronx, trafficked in cocaine, cocaine base ("crack cocaine") and heroin. Its members were involved in many acts of violence, including murders, robberies, kidnappings, and assaults. (Trial Transcript ("Tr.") at 739-81, 807-09, 832-39, 872-79, 918-22, 1047-79, 1090-1157, 1675-1716) The Government alleged that Calcano was a manager in the Organization, and that she distributed large amounts of crack cocaine on its behalf in Reading, Pennsylvania. (Id. at 38, 42) The Government further alleged that she aided and abetted the shooting of her ex-boyfriend - Roberto Cruz Rodriguez, a/k/a Papo Cabeza - a drug dealer who owed the Organization payment for crack cocaine. (Id. at 26, 27, 35-36)
The case was assigned to the Honorable Robert L. Carter. Calcano first appeared in the Southern District of New York on June 16, 1998, and David Gordon was assigned to represent her at that time. She was released on bail on June 29, 1998. (Dkt. No. 33)
On October 16, 2000, Calcano and two co-defendants proceeded to trial on the seventeenth superseding indictment (United States v. Ramirez, S17 98 Cr. 438 (Dkt. No. 160)), which charged her with committing a violent crime in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(3), and with narcotics conspiracy, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). (Id.) The trial lasted eight weeks. Calcano testified, claiming that she (1) was not a member of the Organization, (2) had not sold drugs on its behalf, and (3) had merely asked Juan Ramirez, the Organization's leader, to "talk" to Papo because he had threatened her. (Tr. at 2524, 2527, 2615, 2634-35)
The evidence adduced at trial, however, demonstrated that Calcano had sold crack cocaine for the Organization in Reading, Pennsylvania for several months in 1995. Gang members delivered crack to Calcano in Reading on numerous occasions, often concealing the drugs in Pringles potato chip cans with false bottoms. (Tr. at 409-10, 786, 1693-94) Jesus Salcedo, a member of the Organization, testified that he prepared 125 grams of crack twice a week, for three to four months, for distribution in Reading. (Id. at 785-86) The crack cocaine was delivered to Calcano and she supervised its sale, which took place primarily in the area of Pear Street in Reading. (Id. at 1126, 1132, 1363, 1373)
In the summer of 1995, Calcano reported to members of the Organization that Papo had not paid for crack cocaine supplied by the Organization. (Id. at 799, 1125-26) Several gang members travelled to Reading on June 27, 1995, to collect the debt. (Id. at 800, 1126, 1129, 1699) After the group arrived in Reading, Calcano told gang leader Juan Ramirez that she "had given some drugs to Papo and Papo had not paid for them." (Id. at 804) Calcano offered to bring the gang members to Papo, but her efforts to locate him were not successful. After returning to Calcano's house, Calcano received a call from Papo, who told her to tell Ramirez to meet him on Pear Street. (Id. at 1702) The group went to Pear Street, where Ramirez planned for co-conspirator Manuel Gonzalez to approach Papo with a gun. (Id. at 1704)
Once they encountered Papo, one gang member grabbed Papo by the neck, while Calcano handed Manuel Gonzalez a gun. Gonzalez used the gun to hit Papo in the head while others kicked him. (Id. at 807-08, 1436, 1703) Someone told Gonzalez to shoot Papo in the leg, and he did so. (Id. at 809) Two bystanders witnessed the assault (id. at 1358-86; 1423-54), and one testified that she saw Calcano hand Gonzalez a gun, and watched Gonzalez shoot Papo in the leg. (Id. at 1436) Papo returned fire after being shot, and Calcano and the others fled in three cars. (Id. at. 1371-72, 1437) Police stopped two of the cars, and arrested all seven passengers, including Calcano. (Id. at 1481-85) After this incident, Calcano continued to sell crack cocaine and heroin in Reading for another gang member. (Id. at 1139-42) Calcano was arrested on June 15, 1998. (PSR at ¶ 103)
On December 7, 2000, the jury returned a guilty verdict on both counts. However, the jury found Calcano liable only for a (b)(1)(B) conspiracy - 5 to 50 grams of crack cocaine - as opposed to a (b)(1)(A) conspiracy. After the verdict, Calcano was remanded.
In contrast to the jury verdict, the Probation Department's Presentence Report ("PSR") found that Calcano was responsible for distributing and possessing with intent to distribute approximately three to four kilograms of crack cocaine. (PSR ¶ 113) Judge Carter adopted this finding at Calcano's January 24, 2002 sentencing hearing. (Sentencing Transcript ("Sent. Tr.") at 50) ("The evidence is from [a cooperating witness], that he cooked 125 grams of crack cocaine twice a week for Ms. Calcano for three to four months, which amounts to three to four kilograms of crack during the relevant period.") Accordingly, the PSR and Judge Carter found that the Defendant's base offense level was 38 under the Guidelines then in effect. (PSR ¶ 127; Sent. Tr. at 50 ("All the objections to the presentence report are overruled."))
The PSR recommended, and Judge Carter imposed, a three-level managerial role enhancement and a two-level dangerous weapon enhancement, thus increasing Calcano's total offense level to 43. (PSR ¶ 128; Sent. Tr. at 51-52) The Probation Department deferred to the sentencing court's judgment as whether an obstruction of justice enhancement was warranted. (PSR ¶ 115) Because Calcano had no criminal history, the Probation Department concluded that she belonged in Criminal History Category I. (Id. at ¶ 148) At offense level 43 and Criminal History Category I, the Guidelines called for life imprisonment. However, because the statutory maximum on the racketeering offense was 240 months, and the statutory maximum on the narcotics conspiracy was 480 months, the Probation Department determined - pursuant to § 5G1.1(a) - that the applicable Guidelines range was 720 months' imprisonment. (Id. at ¶ 195)
Calcano made several challenges to the Guidelines calculations in the PSR. (Def. Ltr. June 7, 2001; Def. Ltr. Jan. 23, 2002) She also argued that a downward departure was warranted based on (1) extraordinary family circumstances - her mother and father were seriously ill and dependent on her - and (2) the Sentencing Commission's failure to anticipate Apprendi v. New Jersey , 530 U.S. 466 (2000), when promulgating a rule that allows judges to determine drug quantity by a preponderance of the evidence. (Sent. Tr. at 29-30). Judge Carter rejected all challenges to the PSR and Calcano's request for a downward departure. (Id. at 50, 54, 56) Judge Carter further concluded that a two-level enhancement for obstruction of justice should be imposed, because Calcano had committed perjury at trial. (Id. at 52) Accordingly, under Judge Carter's calculations, Calcano's adjusted offense level was 45. The recommended sentence under the Guidelines remained 720 months' imprisonment, however, because of the statutory maximums. (Id. at 53)
Judge Carter did not impose the Guidelines sentence of 720 months, however. At sentencing, Judge Carter asked the Government whether he had the discretion to impose the sentences for each count concurrently rather than consecutively. (Id. at 53) The prosecutor erroneously informed Judge Carter that the had "discretion to give the sentence concurrently." (Id.) Judge Carter then imposed concurrent sentences of 240 months' imprisonment on the racketeering offense and 480 months' imprisonment on the narcotics offense. (Id. at 54) This sentence was in error because, under then then-mandatory Guidelines, Judge Carter did not have discretion to impose concurrent sentences under the circumstances of this case.
Calcano filed a notice of appeal on January 30, 2002. (Dkt. No. 221) In a December 17, 2003 summary order, the Second Circuit affirmed Calcano's conviction. On October 4, 2004, however, the United States Supreme Court vacated the judgment and remanded the case for further consideration in light of Crawford v. Washington , 541 U.S. 36 (2004). See Calcano v. United States , 543 U.S. 801 (2004). On August 15, 2005, in another summary order, the Second Circuit affirmed Calcano's conviction, but concluded that "[i]n light of the Supreme Court's decision in United States v. Booker, [543 U.S. 220] (2005), and this court's decision in United States v. Crosby , 397 F.3d 103 (2d Cir.2005), th[e] case [should be] remanded, as to Calcano's sentence, to the district court for further proceedings in conformity with Crosby." United States v. Ramirez, Nos. 02-1080(L) & 02-1084 (Con) (2d Cir. Aug. 15, 2005) (the "Remand Order" (Dkt. No. 295) at 8). On April 17, 2006, the Supreme Court denied Calcano's petition for a writ of certiorari. Calcano v. United States, 547 U.S. 1083 (2006).
According to the Clerk's Office of the Court of Appeals, no mandate was issued concerning the August 15, 2005 summary order at that time. The district court, of course, has no jurisdiction until after a mandate issues. See United States v. Rivera , 844 F.2d 916, ...