ROBERT SWEET, District Judge.
On September 29, 2011, Andres Avila Padilla ("Padilla" or "Defendant") pleaded guilty one count of conspiracy to import heroin into the United States, in violation of 21 U.S.C. §§ 960 (b) (1) (A) & 963, and one count of conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 841(b) (1) (A) & 846. For the reasons set forth below, Padilla will be sentenced to time served. Padilla will forfeit to the United States all property involved in the offense or traceable to it. He will also be required to pay a special assessment of $200.
On October 28, 2008, Indictment S1 08 CR 1008 (RWS) was filed in the Southern District of New York. Count One charges that from May 2007 through August 2007, in the Southern District of New York and elsewhere, Padilla, a/k/a "El Negro," and others known and unknown, conspired, in 21 U.S.C. § 963, to import into the United States from a place outside thereof, one kilogram and more of heroin, in violation of 21 U.S.C. §§ 812, 952 (a), 960 (a) (1) and 960 (b) (1) (A).
Count Two charges that from May 2007 through August 2007, in the Southern District of New York and elsewhere, Padilla and others known and unknown, conspired, in violation of 21 U.S.C. § 846, to distribute and possess with intent to distribute one kilogram and more of heroin, in violation of 21 U.S.C. §§ 812, 841(a) (1) and 841(b) (1) (A).
On September 21, 2011, Padilla appeared before the Honorable Frank Maas and allocated to Counts One and Two. In accordance with a plea agreement, the parties stipulated to the following:
On December 9, 2010, co-conspirator Consuelo Garcia Rivera ("Rivera") appeared before the Honorable Michael H. Dolinger in the Southern District of New York and allocuted to Count 1 of Superseding Indictment S3 08 CR 1008 (RWS). On April 5, 2011, Rivera was sentenced to time served followed by 3 years' supervised release and $100 special assessment.
On September 29, 2011, co-conspirator Henry Parra Cifuentes ("Cifuentes") appeared before the Honorable Kevin N. Fox in the Southern District of New York and allocuted to Counts 1 and 2 of Superseding Indictment S2 08 CR 1008 (RWS) in accordance with a plea agreement. On January 26, 2012, Cifuentes was sentenced to time served and a $200 special assessment.
Padilla's sentencing is currently scheduled for February 2, 2012.
In accordance with the Supreme Court's decision in
18 U.S.C. § 3553 (a). A sentencing judge is permitted to find all the facts appropriate for determining a sentence, whether that sentence is a so-called Guidelines sentence or not.
The Court adopts facts set forth in the Presentence Investigation Report ("PSR") with respect to Padilla's personal and family history.
The following description draws from PSR. The specific facts of the underlying conduct are adopted as set forth in that report.
The investigation conducted by the Federal Bureau of Investigation ("FBI") ed that the criminal conspiracy involved the shipment of heroin, via human couriers, from Colombia to the New York city area. Traveling by commercial airliners, couriers would transport suitcases in which heroin was secreted from Colombia to the U. S. Rivera's role in the conspiracy consist primarily of watching over the couriers while they waited at Rivera's house for the suitcase of drugs to arrive. Among other things, Rivera would cook for the couriers and then drive them to the airport. Rivera would also occasionally watch the couriers to ensure that they got on the plane without incident and then would back to the other members of the conspiracy that the courier had left.
On May 13, 2009, Rivera, a/k/a La Mona, was arrested by members the Colombian National police ("CNP"), pursuant to a provisional arrest warrant issued by the Southern District of New York ("SDNY"), and was transported to the Direction De Investigation Criminal Dijin rectorate of Criminal Investigation), Avenida EI Dorado, Numero 75-25, Bogota, Colombia. Prior to beginning the interview, Rivera was advised of the identity of the interviewing agents and the nature of the charges, as well as her
Rivera advised that she had a friend named Anita LNU who introduced Rivera to her (Anita's) boyfriend, Hernan LNU. Rivera further advised that Hernan had a male end who was traveling to New York who needed a place to stay while in Colombia. Hernan subsequently paid Rivera one hundred thousand (100,000) pesos
The following morning, Hernan called Rivera to ask if Steven had been picked up from her residence. Rivera advised Hernan that Steven was still at her residence. As a result, Hernan proceeded to send Padilla to pick Steven up. Padilla then drove Steven to El Dorado International Airport.
After Padilla picked up Steven and left for the airport, Rivera noticed that Steven had forgotten his cellular telephone at her residence. Rivera indicated that Hernan directed Padilla to return and pick up Rivera and the cellular telephone at her residence, which Padilla proceeded to do. Once at the airport, Rivera advised that she was dropped off by Padilla, and that Rivera entered the terminal to look Steven. While inside the airport, Rivera indicated that she was detained and identified by personnel from the Colombian National Police (CNP), and that Steven had been arrested and was in custody.
Rivera advised that she was told by personnel from the CNP that Steven had been arrested for transporting drugs. Rivera denied knowing that were drugs contained within the bag that Steven was transporting.
Rivera indicated that prior to Steven staying at her residence, Jose Luis (Cifuentes) had an uncle stay with her. Rivera further indicated that the individual was picked up and that she also traveled to the airport on this occasion. Rivera did not recall who picked up this individual. Rivera advised that on one other occasion, a homosexual male, whose name she did not recall, was brought to her residence, along with a bag by Hernan. Rivera further advised that the unknown male was picked up at her residence and transported to the airport with a bag, and that she also traveled to the airport. Once at the airport, Rivera indicated that she entered the terminal to observe the unknown male check in and depart. When questioned as to her purpose, in traveling to the airport, Rivera answered that she was simply accompanying the unknown male to the airport because she had become friendly with him and was taking a ride.
For Count One, pursuant to 21 U.S.C. § 960 (b) (1) (A), the maximum term of imprisonment is life and the mandatory minimum term is 10 years. Pursuant to 21 U.S.C. § 841(b) (1) (A) & 846, Count Two carries a maximum term of life imprisonment and a mandatory term of 10 years' imprisonment. Pursuant to the provisions of 18 U.S.C. 3553 (f), the Defendant appears to meet the criteria set for imposition of a sentence in accordance with the applicable Guidelines, without regard to any statutory minimum sentence.
For Count One, if a sentence of imprisonment is imposed, a term of at least 5 years' supervised release is required, pursuant to 21 U.S.C. § 960(b) (1) (A). For Count Two, if a sentence of imprisonment is imposed, a term of at least 5 years' supervised release is required, pursuant to 21 U. S. C. § 841 (b) (1) (A). Multiple terms of supervised release are to run concurrently with each other, pursuant to 18 U.S.C. § 3624(e).
For Counts One and Two, the Defendant is not eligible for probation because the instant offense is on for which probation has been expressly precluded by statute, pursuant to 18 U.S.C. § 3561(a) (2), 21 U.S.C. §§ 960(b) (1) (A) & 841 (b) (1) (A).
For both Counts, the maximum fine is $4,000,000 per count, for a total of $8,000,000, pursuant to 21 U.S.C. §§ 960 (b) (1) (A) & 841 (b) (1) (A). A special assessment of $100 per count is mandatory, pursuant to 18 U.S.C. § 3013.
Pursuant to 18 U.S.C. § 91963 (a) (1), (a) (2), & (a) (3), as a result of committing the offenses alleged, Defendant shall forfeit to the United States all property, real and personal, involved in the offense or traceable to such property.
The November 1, 2011 edition of the
Counts 1 and 2 are grouped together pursuant to § 3D1.2 (d), as the offense level is determined largely on that basis of the quantity of the substance involved.
The Guideline for a violation of 21 U. S. C. 963 is found in § 2D1.1. As stipulated in the plea agreement, the defendant's criminal activity involved a conspiracy to import and distribute between 10 and 30 kilograms of hero The offense level specified in the Drug Quantity Table under § 2D1.1 (c) (2), sets a base offense level of 36.
The Defendant appears to meet the criteria set forth in subdivisions (1)-(5) of § 5C1.2. Accordingly, a two-level decrease in the offense level is warranted, pursuant to § 2D1.1 (b) (16).
Based on his plea allocution, Defendant has shown recognition of his responsibility for the offense. Pursuant to § 3E1.1(a), the offense is reduced two Is. Furthermore, an additional one level reduction is warranted, pursuant to § 3E1.1 (b), because Defendant gave timely notice 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.
Accordingly, the applicable offense level is 31.
According to the FBI and the New York State Division Criminal Justice Services, Bureau of Identification, the Defendant has no prior criminal convictions. Because Padilla has no known criminal convictions, Defendant has zero criminal history points. A total of zero criminal history points establishes a Criminal History Category I, pursuant to the table at Chapter 5, Part A, of the Guidelines.
Based on a total offense level 31 and a Criminal History Category of I, the Guidelines range for imprisonment is 108 to 135 months.
The Guidelines range for a term of supervised release is five years, the minimum required by statute, pursuant to Section 5D1.2(c). Application note number 2 of § 5D1.1 provides that a defendant who qualifies under § 5C1.2 is not subject to any statutory minimum sentence of supervised release. The Guideline range for a term of supervised release is therefore two to five years, pursuant to § 5D1.2(a) (1). The Court shall order a term of supervised release when required by statute (§ 5D1.1(a) (1)), or except for a deportable alien who is likely to be deported after imprisonment, when a term of imprisonment of more than one year is imposed (§ 5D1.1 (a) (2)). Pursuant to § 5D1.1(c), the Court should not ordinarily impose a term of supervised release in a case in which supervised release is not required by statute and the defendant is a deportable alien who is likely to be deported after serving a term of imprisonment. In any other case, the Court may order a term of supervised release, pursuant to § 5D1.1(b).
Defendant is not eligible for probation because the instant offense is one for which probation has been expressly precluded by statute, pursuant to § 5B1.1(b) (2).
The fine range for the instant offenses is from $15,000 to $8,000,000, pursuant to § 5E1.2 (c) (3) (A) & (c) (4). Subject to Defendant's ability to pay, in imposing a fine, the Court shall consider the expected costs to the Government of any imprisonment, probation, or supervised release pursuant to § 5E1. 2 (d) (7). The most recent advisory from the Administrative Office of the United States Courts suggests a monthly cost of $2,357.01 to be used for imprisonment, a monthly cost of $328.20 for supervision, and a monthly cost of $2,153.22 for community confinement.
Pursuant to § 5E1.4, forfeiture is to be imposed upon a convicted defendant as provided by statute.
Having engaged in the Guidelines analysis, this Court also gives due consideration to the remaining factors identified in 18 U.S.C. § 3553(a) to impose a sentence "sufficient, but not greater than necessary" as is required by the Supreme Court's decision in
Under 18 U. S. C. § 3553 (a), the Court considers "the nature and circumstances of the offense and the history and characteristics of the defendant" as well as the need for the sentence imposed "to the seriousness of the offense, to promote respect for the law, and to provide just punishment the offense," "to afford adequate deterrence to criminal conduct," and "to protect the public from further crimes of the defendant."
From the PSR, it appears that Padilla played a minor role in the conspiracy. According to the PSR, Padilla's role in the conspiracy was to transport drug couriers to the airport. The Defendant has no known criminal history. He is the father of four and appears from the PSR to provide for them financially. Additionally, Padilla is 44 years old and, as such, statistically less likely to reoffend after serving the sentence imposed for the instant offenses.
Under 18 U.S.C. § 3553 (a) (6), the Court further considers "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." Defendants Rivera and Cifuentes, who likewise appeared to play minor roles in the conspiracy and were in Criminal History Category I, were both sentenced to time served, terms representing downward departures. It is the Government's position that the three co-defendants are equally culpable for the instant offenses.
The Court notes that Padilla has accepted responsibility for his conduct. In light of the nature and circumstances of the offense and story and characteristics of the Defendant as well as the need to avoid unwarranted sentence disparities among defendants, the Court finds that a downward departure from the Guideline sentence is appropriate to impose a sentence "sufficient, but not greater than necessary" under 18 U.S.C. § 3553 (a).
For the instant offenses, Padilla will be sentenced to time served.
In consideration of all the factors set forth in 18 U.S.C. § 3572(a), it does not appear that Defendant is able to pay a fine, and so the fine in this case shall be waived. A special assessment of $200, payable to the United States, is mandatory and shall be due immediately.
Defendant shall forfeit to the United States all property constituting or derived from any proceeds the Defendant obtained directly or indirectly as a result of the said violations and any and all property used or intended to be used in any manner or part to commit and to facilitate the commission of the violations alleged in Counts One and Two.
The terms of this sentence are subject to modification at the sentencing hearing scheduled for February 2, 2012.
It is so ordered.
