No. S6 98 Cr. 1316 (RWS).United States District Court, S.D. New York.
February 2, 2001.
SENTENCING OPINION
ROBERT W. SWEET, United States District Judge.
Pursuant to a written plea agreement, defendant Robert Gonzalez (“Gonzalez”) pled guilty on January 21, 2000, to three counts of using the telephone to facilitate a drug offense, in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2. For the reasons set forth below, Gonzalez will be sentenced to three consecutive terms of 48 months imprisonment, to be followed by a statutory oneyear term of supervised release. Gonzalez shall pay a mandatory $300 special assessment pursuant to 18 U.S.C. § 3013.
Like almost all of the other defendants involved in this case, Gonzalez grew up in dire poverty, surrounded by drug use, and suffered physical abuse at the hands of a family member. One of seven children, Gonzalez has vivid memories of growing up with an abusive, alcoholic father. Because his father often spent his mother’s public assistance check on alcohol, Gonzalez and his siblings had to pick through garbage dumpsters for fruit and stale donuts. When drinking, Gonzalez’s father beat him with his fist, belt, and an extension cord. Gonzalez and his siblings often suffered bloody noses, and his sister Nancy was often beaten so severely that she lost consciousness. His parents separated when Gonzalez was eleven years old, and his father provided no financial support. Gonzalez’s father died of cancer in 1994; they had not been in contact since Gonzalez was thirteen.
His mother, Isabel Gonzalez, suffers from cognitive problems and receives social security disability payments. Prior to his arrest, Gonzalez bought food for his mother and provided her approximately $100 a month to help her pay the rent. She now lives in federally subsidized Section 8 housing in the same apartment building as Gonzalez’s sister Marilyn, who assists with daily chores.
Gonzalez has battled addictions to alcohol and narcotics since he was a teenager. He began drinking at the age of eleven, and was smoking marijuana and snorting cocaine by age thirteen. He dropped out of school after eighth grade, and, despite advancing that far, is unable to write a simple letter. Gonzalez has enrolled in GED classes since being arrested and plans to continue them while in custody.
In 1991, Gonzalez was referred by his New York State Parole Officer to an outpatient substance abuse program. After initial resistance, he successfully abstained from using narcotics for two years. He graduated from the treatment program at Colonial Park and moved on to an aftercare program, which closed due to a lack of funding in early 1994. Without the support of the program, and living in a building where drugs were regularly sold in the lobby, Gonzalez returned to drinking and snorting cocaine soon thereafter.
He was first arrested on drug charges at sixteen years of age. Multiple robbery and narcotics convictions followed, and Gonzalez was imprisoned for the better part of the 1980’s. Although he had intermittently held odd jobs in his neighborhood over the years, in light of his criminal record, lack of education, and difficulty reading, Gonzalez reports being too “embarrassed to apply for a job.” Recognizing the impact his addictions have on his prospects after completing his sentence, Gonzalez is seeking drug treatment while in custody.
The Offense
On February 4, 1999, while serving a state sentence for a narcotics conviction, Gonzalez was writted into federal custody. His arrest was the result of a three-year narcotics investigation by the Bronx Homicide Task Force (BXHTF) and the Bronx Major Case Narcotics Unit of the New York City Police Department (NYPD). Since 1996, NYPD detectives had investigated the trafficking of heroin with the brand name “Special” in the vicinity of Crotona Avenue and East 183rd Street in Bronx County, New York. The investigation, conducted with the assistance of undercover police officers and confidential informants, revealed the existence of a drug ring that distributed substantial amounts of heroin weekly, up to ten kilograms over the course of the conspiracy. Eleven individuals, including Gonzalez, were charged with violating federal narcotics laws. Gonzalez earned $400 a day as a “stash man,” a “pitcher” and manager responsible for storing heroin in his apartment.
The Guidelines
The Presentence Report prepared by the U.S. Probation Office grades Gonzalez’s conduct under the 1998 version of the United States Sentencing Guidelines (“the Guidelines”) at a base offense level of 34 pursuant to §§ 2D1.6 and 2D1.1(c)(3), and the Drug Quantity Table. The Probation Office recommends a three-point reduction for acceptance of responsibility pursuant to U.S.S.G. §§ 3E1.1(a) and (b), resulting in an adjusted offense level of 31.
Because Gonzalez was over eighteen when he committed this controlled substance offense, and has two prior felony convictions for crimes of violence or narcotics offenses, he is a “career offender” as defined in U.S.S.G. § 4B1.1. Section 4B1.1 states:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions-of either a crime of violence or a controlled substance offense. If the offense level for a career criminal from the table below is greater than the offense level otherwise applicable, the offense level from the table below shall apply. A career offender’s criminal history category in every case shall be Category VI.
Pursuant to Application Note 1 to U.S.S.G. § 4B1.2, the “telephone counts” at issue here constitute “controlled substance offenses” because the offense facilitated by the telephone calls was a conspiracy to distribute heroin.
Any prior sentence over one year and one month for a felony involving a crime of violence or narcotics that was imposed within fifteen years of the instant offense, or any such offense for which Gonzalez was serving prison time within fifteen years of the instant offense, may serve as a predicate for the career offender enhancement. See U.S.S.G. §4A1.2(e). The telephone calls involved in this case took place in April, May and June of 1998. Therefore, Gonzalez’s 1994 conviction for possession of crack cocaine, his 1988 conviction for sale of a controlled substance, and his 1984 conviction for attempted robbery, are properly considered predicate offenses for the career offender enhancement. In addition, although Gonzalez’s 1981 attempted robbery conviction took place more than 15 years before the instant offense, that crime may also be considered because he was not paroled until July 21, 1983, within the fifteen-year window. Accordingly, Gonzalez has two prior qualifying crimes of violence, and two qualifying prior narcotics offenses, which requires that he be classified as a career offender, and that his Criminal History Category be VI.
Based upon a total offense level of 31 and a Criminal History Category of VI, the Guideline range if 188 to 235 months. However, because the Guideline range exceeds the statutory maximum of forty-eight months per count, the Probation Office recommends the imposition of a 144-month sentence pursuant to U.S.S.G. § 5G1.2(d) (requiring imposition of consecutive sentences where highest combined statutory maximum is less than the lowest applicable guideline). Gonzalez entered into a plea agreement with the Government stipulating to the same Guideline calculation.
The Sentence
Gonzalez shall be sentenced to 48 months on each count, to be served consecutively, for a total of 144 months imprisonment. In addition, a one-year term of supervised release will be imposed pursuant to 18 U.S.C. § 3583(b)(3), U.S.S.G. §§ 5D1.1(a) and 5D1.2(a)(3). Gonzalez is to report to the nearest Probation Office within 72 hours of his release from custody, and supervision shall be in the district of residence. As mandatory conditions of supervised release, Gonzalez shall (1) abide by the standard terms of supervised release; (2) not commit another federal, state, or local crime; (3) not illegally possess a controlled substance; (4) not possess a firearm or destructive device; or (5) unlawfully use a controlled substance. Finally, Gonzalez shall submit to one drug test within fifteen days of placement on supervised release, and at least two drug tests thereafter. 18 U.S.C. § 3583(d).
Although the Guidelines contemplate fines ranging from $15,000 to $30,000, See § 5E1.2(c)(4), upon a review of Gonzalez’s financial statement, no fine will be imposed. However, Gonzalez is required to pay the mandatory $300 special assessment pursuant to 18 U.S.C. § 3013, which shall be due immediately.
This sentence is subject to the hearing currently scheduled for February 5, 2001.
It is so ordered.