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United States v. Aponte

United States District Court, Southern District of New York

April 1, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
OMAR APONTE, Defendant.

SENTENCING OPINION

ROBERT W. SWEET U.S.D.J.

On February 26, 2014, Omar Aponte ("Aponte" or "Defendant") pled guilty to conspiring to distribute and possess with intent to distribute 5 kilograms and more of cocaine.

For the reasons set forth below, Fernandez will be sentenced to 96 months' imprisonment followed by five years' supervised release, subject to the scheduled sentencing hearing on April 14, 2015. Defendant is also required to pay a special assessment of $100.

Prior Proceedings

Defendant was named in a one-count superseding indictment (the "Indictment") filed in the Southern District of New York. The first and only count of the Indictment charges that from about 2011 through November 2012, in the Southern District of New York and elsewhere, Aponte, and others, conspired and possessed with intent to distribute 5 kilograms and more of cocaine, in violation of 21 U.S.C. §§ 841(a) (1) and (b)(1)(A) ("Count 1").

The Indictment further indicates that: as a result of committing the offense charged in Count 1, Aponte shall forfeit to the United States any property constituting proceeds from the offense. If any of the property subject to forfeiture cannot be located upon the exercise of due diligence, has been transferred to a third party, has been placed beyond the Court's jurisdiction, has been substantially diminished in value, or has been commingled with other property, it is the intention of the Government to seek forfeiture of any other property of Defendant up to the value of the forfeitable property. See 18 U.S.C. 982 (a) (1); 21 U.S.C. § 853.

On February 26, 2014, Aponte pled guilty to Count 1 pursuant to a plea agreement, which stipulates the following:

Offense Level
The Guidelines Manual in effect as of November 1, 2013 applies.
The sentencing guideline applicable to the offense charged in Count 1 of the Indictment is U.S.S.G. § 2D1.1.
Pursuant to U.S.S.G. § 2D1.1(c)(1), the base offense level is 38, because Defendant's offense involved more than 150 kilograms cocaine.
Pursuant to U.S.S.G. § 2D1.1(b) (16), a decrease of two levels is warranted because Defendant appears to meet the criteria set forth in U.S.S.G. § 5C1.2.
Assuming Defendant clearly demonstrates acceptance of responsibility, to the satisfaction of the Government, through his allocution and subsequent conduct prior to the imposition of sentence, a two-level reduction will be warranted, pursuant to U.S.S.G. § 3E1.1(a). Furthermore, assuming Defendant has accepted responsibility as described in the previous sentence, an additional one-level reduction is warranted, pursuant to U.S.S.G. § 3E1.1(b), because Defendant gave timely notice of his intention to enter a plea of guilty, thereby permitting the Government to avoid preparing for trial and permitting the Court to allocate its resources efficiently.
In accordance with the above, the applicable Guidelines offense level is 33.
Criminal History Category Based upon the information now available to the U.S. Attorney's Office (including representations by the defense), Defendant has no previous convictions, and is therefore in Criminal History Category I.
Sentencing Range Based upon the calculations set forth above, Defendant's stipulated Guidelines range is 135 to 168 months' imprisonment, with a mandatory minimum term of imprisonment of 120 months. In addition, after determining Defendant's ability to pay, the Court may impose a fine pursuant to U.S.S.G. § 5E1.2. At Guidelines level 33, the applicable fine range is $17, 500 to $10, 000, 000.
The parties agree that neither a downward nor an upward departure from the Stipulated Guidelines Range is warranted. Accordingly, neither party will seek any departure or adjustment pursuant to the Guidelines that is not set forth herein. Nor will either party suggest that the Probation Office consider such a departure or adjustment under the Guidelines, or suggest that the Court consider any such departure or adjustment.
The parties agree that either party may seek a sentence outside of the Stipulated Guidelines Range, suggest that the Probation Office consider a sentence outside of the Stipulated Guidelines Range, and suggest that the Court consider a sentence outside of the Stipulated Guidelines Range, based upon the factors to be considered in imposing a sentence pursuant to 18 U.S.C. 3553(a).

Defendant is scheduled to be sentenced on April 14, 2015.

The Sentencing Framework

In accordance with the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (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 Guidelines. 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 ...

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