United States District Court, S.D. New York
As Amended October 8, 2014.
For Government: Laurie Korenbaum, Esq., Michael D. Maimin, Esq., PREET BHARARA, United States Attorney for the Southern District of New York, New York, NY.
For Defendant: Robert J. Krakow, Esq., LAW OFFICE OF ROBERT J. KRAKOW, P.C., New York, NY.
AMENDED SENTENCING OPINION
Robert W. Sweet, United States District Judge.
The defendant Antonio Guerrero (" Guerrero" or the " Defendant" ) was found guilty on June 4, 2010 after a six-week trial on two counts of intentional murder while engaged in a drug trafficking crime in violation of 21 U.S.C. § 848(e)(1). The sentencing opinion of January 19, 2012 (" Sentencing Opinion" ) provided that, subject to the sentencing hearing, the anticipated sentence was 25 years' imprisonment and five years' supervised release on each of the counts on which he was convicted, to run concurrently. The relevant statutes and the United States Sentencing Guidelines (" Guidelines" ) have changed as a consequence of the enactment of the Fair Sentencing Act of 2010 (the " FSA" ) as interpreted in Dorsey v. United States, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012), giving rise to this Amended Sentencing Opinion.
For this judge, and I presume for most judges, sentencing is the most wrenching decision in a criminal trial, seeking the just balance between personal liberty and societal security. The difficulty of the task is exemplified by the changes in the process over the years. Prior to the Federal Sentencing Reform Act of 1984, the discretion of the sentencing judge was exercised within the statutory limits. Thereafter, the Guidelines established by the United States Sentencing Commission (the " Commission" ) largely controlled the process. After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Guidelines became advisory and the § 3553 factors more significant. The FSA altered the threshold requirements of 21 U.S.C. § 841(b)(1)(A) and (B) and the Supreme Court in Dorsey v. United States, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012) held the FSA to be retroactive.
The present challenge is determining the sentencing regimen that should apply to Guerrero, validly convicted in 2010, pre-FSA, and now being sentenced post-Dorsey. The parties have provided much appreciated memoranda which have ably illuminated the difficult problems presented.
The issuance of this Amended Sentencing Opinion is consistent with the practice this Court has adopted to assist the parties at the sentencing hearing and to comply with the notice provisions of Federal Rule of Criminal Procedure 32(i)(1)-(4). In this
instance, the Amended Sentencing Opinion is particularly appropriate since it appears that the issues presented here are of first impression.
As concluded below, the relevant guideline for murder and the 18 U.S.C. § 3553(a) factors constitute the appropriate sentencing regimen and result in the same sentence as was set forth in the Sentencing Opinion, subject to the sentencing hearing now scheduled for October 6, 2014.
On June 7, 2010, Guerrero was convicted of Counts One and Two of Indictment 09 Cr. 339, which charged him with the 1994 murders of Fernando Garrido and Livino Ortega, each in violation of 21 U.S.C. § 848(e)(1)(A). On February 7, 2011, Guerrero filed a timely Rule 29/33 motion. (Dkt. No. 114.) Following oral argument, and with the permission of the Court, Guerrero filed a " supplemental" memorandum of law. (Dkt. No. 124.) On December 1, 2011, Guerrero's motion was denied in its entirety. (Dkt. No. 131.) On January 20, 2012, the Sentencing Opinion was filed. (Dkt. No. 134.) At Guerrero's request, the Court adjourned sentencing from February 13, 2012, to April 9, 2012. (Dkt. No. 137.) On April 2, 2012, Guerrero, who had no Rule 29/33 motion pending at the time, filed another " supplemental" Rule 29/33 motion. (Dkt. Nos. 140-42.) After holding an evidentiary hearing and reviewing submissions from both parties, on August 7, 2013, Guerrero's motion was denied. (Dkt. No. 179.)
The Defendant submitted his Sentencing Memorandum on April 18, 2014. The Government submitted its Sentencing Memorandum on August 14, 2014, and the Defendant filed his reply on September 4, 2014. The parties ...