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United States v. Powell

United States District Court, E.D. New York

April 18, 2017

UNITED STATES OF AMERICA
v.
SHAKEEM POWELL, Defendant.

         Statement of Reasons Pursuant to 18 U.S.C. § 3553(c)(2)

          United States:Lauren Howard Elbert Marcia Maria Henry Michael P. Robotti Nomi Danielle Berenson

          Defendant: Richard B. Lind Richard B. Lind, Esq.

          Jack B. Weinstein, Senior United States District Judge:

         Table of Contents

         I. Introduction .................................... 1

         II. Investigation ....................................................................................................................... 2

         III. Arrest, Charge, and Guilty Plea ....................................................................................... 3

         IV. 18 U.S.C. § 3553(a) Considerations .................................................................................. 5

         A. Defendant's Background ............................................................................................... 5

         B. Psychological Evaluation ............................................................................................... 7

         V. Legal Standards for Competence ..................................................................................... 9

         A. Defendant's Competence to Enter a Plea of Guilty .................................................. 11

         B. Practical Considerations .............................................................................................. 15

         VI. Sentence ............................................................................................................................ 17

         VII. Conclusion ........................................................................................................................ 18

         I. Introduction

         Defendant was charged with a conspiracy to possess with intent to distribute one kilogram or more of heroin. A statutory minimum custodial sentence of 10 years applies. 21 U.S.C. § 846; 21 U.S.C. §841(a)(1); 21 U.S.C. § 841(b)(1)(A). After plea negotiations, he agreed to plead guilty to a lesser-included charge of conspiracy to distribute at least 100 grams of heroin, which carries a statutory minimum prison sentence of five years. 21 U.S.C. § 846; 21 U.S.C. §841(a)(1); 21 U.S.C. § 841(b)(1)(B); see Guilty Plea Transcript, July 11, 2016, ECF No. 252 (“Pleading Tr.”), at 36:9-12. The court believed a five-year term was excessive, and that defendant lacked the competence to plead. Nevertheless, as explained below, it accepted the plea and sentenced defendant to five years in prison.

         Defendant was a heroin addict and seller of small amounts, receiving drugs as part of his compensation. The large weight he was charged with was attributable to him in part on the government's theory of his participation in a drug conspiracy with a large organization (“DTO”) distributing heroin in Queens, New York. There are 11 other defendants.

         Expert psychiatric testimony revealed that, although he is competent to stand trial and, possibly, to enter a guilty plea, he is not able to meaningfully distinguish between the quantity of drugs he distributed and the relevant penalties. Defendant understands that distributing heroin is illegal, but his intelligence and understanding are too limited for him to appreciate that the quantity of heroin he is charged with as a conspirator would substantially increase the sentence.

         His guilty plea was accepted and the mandatory five-year minimum sentence is imposed. But the court finds this result disquieting. The problem of overcharging faced here occurs repeatedly in our criminal justice system.[*] This defendant, with severe mental health problems, risks a significantly higher sentence if he proceeds to trial than if he pleads guilty; even though he does not fully comprehend the basis and effect of his plea.

         II. Investigation

         An investigation commenced by Homeland Security (“HSI”) and other law enforcement agencies in 2013 discovered that Mr. Powell, together with others, was a member of a gang called Paper Chasing Goons. Presentence Investigation Report, Nov. 9, 2016 (“PSR”), at ¶ 3. DTO leaders maintained access to stashes of narcotics and firearms; they distributed heroin to users through minor figures such as defendant. PSR at ¶¶ 3-4. His role was described accurately by a psychiatrist:

THE WITNESS: . . . [T]he intellectual limitations, the tunnel vision, his inability to really understand what people, other than senior members, of this drug organization were doing . . . he was merely a conduit. He would not be somebody who would be able to make purchases, not someone who would be able to organize a drug organization. He wouldn't be trusted cutting drugs. . . . [H]e would never be trusted weighing drugs. This is someone who merely was a relay point between people higher in the organization and the buyers of the drugs.

Hr'g Tr., Mar. 21, 2017 (“Mar. 21 Hr'g Tr.”), at 27:22-28:7 (emphasis added).

         Using a mobile telephone to control distribution, the DTO sold heroin from several stash houses. PSR at ¶¶ 4-5. Ms. Shavona Trappier, defendant's sister and a leader in the gang, maintained one of these stashes. Id. at ¶ 9. Essentially at his sister's direction, defendant transferred heroin to others. Id. at ¶ 5; Mar. 21 Hr'g Tr. at 22:15-21. Defense counsel accurately summarized defendant's intellectual limitations:

MR. LIND: This is not to say that Mr. Powell was unable to recognize the nature of his actions at the time of the offense and its wrongfulness, rather his intellectual limitations, his psychiatric history, which notes long-standing clinical depression, his multiple suicide attempts, and his limited judgment and insight are likely to have contributed to his willingness to follow his sister's lead and participate in this crime.

Mar. 21 Hr'g Tr. at 26:6-13.

         During a monitored telephone call, defendant confirmed that he was in the vicinity of a stash house and had arranged to sell heroin to a customer. PSR at ¶ 9. Law enforcement agents who surveilled the transaction observed defendant sell the customer one glassine, which contained considerably less than a gram of heroin. Id.; Hr'g Tr., Apr. 17, 2017 (“Apr. 17 Hr'g Tr.”). Other calls revealed that defendant was arranging similar drug transactions over the phone and meeting customers to complete drug sales. PSR at ¶¶ 10-11.

         III. Arrest, Charge, and Guilty Plea

         On June 10, 2015, defendant was arrested in his automobile by New York City police officers for selling heroin. Id. at ¶ 12. A search of defendant and his car revealed eight glassine envelopes of heroin and $23. Id. This possession is relevant to the instant offense because it was part of the DTO's course of conduct. Id.; U.S.S.G. § 1B1.3(a)(2). Treated solely as a seller rather than as a member of a conspiracy, his total sales would possibly put him below any minimum charge, leaving the court free to sentence him to a shorter term.

         HSI agents arrested him for the instant offense on July 8, 2015. PSR at ¶ 8. He has remained incarcerated since then. Id. at 1.

         In December 2015, a grand jury returned an indictment charging defendant with conspiring to distribute and possess with intent to distribute one kilogram or more of heroin, an offense carrying a minimum term of imprisonment of 10 years. 21 U.S.C. § 846; 21 U.S.C. § 841(a)(1); 21 U.S.C. § 841(b)(1)(A).

         In July 2016, defendant pled guilty before a magistrate judge to a lesser-included charge, one count of a conspiracy to distribute and possess with intent to distribute at least 100 grams of heroin, with a minimum term of imprisonment of five years. See 21 U.S.C. § 846; 21 U.S.C. § 841(a)(1); 21 U.S.C. § 841(b)(1)(B); Pleading Tr. at 36:9-12.

         Ex mero motu, the court raised the issue of competency to plead. It ordered a psychiatric hearing.

         Defendant's base offense level is 30, with a criminal history category of VI. See PSR at ¶¶ 52, 62-70. The offense level was decreased by three points pursuant to U.S.S.G. § 3E.1.1(a)-(b) for defendant's acceptance of responsibility and increased by four points pursuant to U.S.S.G. § 4B1.1 for defendant's status as a career offender. Id. at ¶¶ 52-61. The total adjusted offense level is 31. PSR at ¶ 61. The parties do not object to this calculation. See Mar. 21 Hr'g Tr. The Sentencing Guidelines (“Guidelines”) imprisonment range is 188 to 235 months (15 to 20 years). See U.S.S.G. Ch. 5 Pt. A; PSR at ¶ 107.

         Pursuant to the Supreme Court's decision in United States v. Booker, the Guidelines are advisory; a sentencing court may depart in the interest of justice as well as statutory concerns expressed in section 3553(a). United States v. Booker, 543 U.S. 220, 245-46 (2005); see also United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (“It is now, however, emphatically clear that the Guidelines are guidelines - that is, they are truly advisory. A district court may not presume that a Guidelines sentence is reasonable; it must instead conduct its own independent review of the sentencing factors, aided by the arguments of the prosecution and defense.” (footnote omitted)).

         In view of the excessive incarceration rates in the recent past and their unnecessarily deleterious effects on individuals sentenced, society, and our economy, parsimony in incarceration is encouraged. See, e.g., 18 U.S.C. § 3553(a) (“The court shall impose a sentence sufficient, but not greater than necessary.”); National Research Council of the National Academies, The Growth of Incarceration in the United States, Exploring Causes and Consequences 8 (2014) (“Parsimony: the period of confinement should be sufficient but not greater than necessary to achieve the goals of sentencing policy.”).

         IV. 18 U.S.C. § 3553(a) Considerations

         As required, the court considered the “nature and circumstances of the offense and the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1).

         A. Defendant's Background

         Mr. Powell is 28 years old, born in Queens, New York. PSR at 2. His father disappeared early in defendant's life, leaving his mother to bring up six children alone. Id. at ¶¶ 76-77; Apr. 17 Hr'g Tr. He was raised by his mother and grandmother under poor economic circumstances. He has one paternal half-brother, who resides in a halfway house after being released from local custody for a drug-related offense. Id. at ¶¶ 77-78. He has five maternal half-siblings, one of whom is a co-defendant in the instant case. Id. at ¶ 77. Defendant's mother stated that because she was a single parent and worked long hours throughout his childhood, she was not able to give her children as much attention as they required, and “couldn't compete with the streets.” See Apr. 17 Hr'g Tr.

         Defendant has a 9-year old son from a previous relationship. Id. at ¶ 80. He has maintained contact with the child and his mother. Id. Before his current arrest, Mr. Powell visited his son and provided modest financial support. Id. Incarceration has been difficult for the boy, who continually asks when his father will be returning. Id. at ¶ 81. Mr. Powell has been living with his current girlfriend since 2013; she remains supportive. Id. at ¶ 82.

         Mr. Powell's lack of judgment, his inability to read or write, and his limited intelligence are encapsulated in this ...


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