WILLIAM F. KUNTZ, II, District Judge.
On September 20, 2016, Mario Antonio Javier Morffe ("Defendant"), pleaded guilty to one count of Importation of Cocaine, in violation of 21 U.S.C. § 952(a) and 21 U.S.C. § 960(a)(1). The Court now sentences the defendant and provides a complete statement of reasons pursuant to 18 U.S.C. § 3553(c)(2) of those factors set forth by Congress and the President and contained in 18 U.S.C. § 3553(a). For the reasons discussed below, the defendant is hereby sentenced to 12 months and 1 day of incarceration and a $100.00 special assessment.
On January 29, 2016, the United States filed a Complaint against Defendant alleging he had unlawfully imported cocaine, a Schedule II controlled substance, into the United States. Compl. at 1, ECF No. 1. The subsequent Indictment, filed on February 22, 2016, charged Defendant with two counts: (1) Importation of Cocaine, in violation of 21 U.S.C. § 952(a) and 21 U.S.C. § 960(a)(1); and (2) Possession of Cocaine with Intent to Distribute, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(C). Indictment at 1-2, ECF No. 5. On September 20, 2016, Defendant pleaded guilty to Count One of the Indictment pursuant to a Plea Agreement. See Plea Agreement, ECF No. 17.
The Court hereby sentences Defendant and sets forth its reasons for Defendant's sentence using the rubric of the 18 U.S.C. § 3553(a) factors pursuant to 18 U.S.C. § 3553(c)(2).
18 U.S.C. § 3553 outlines the procedures for imposing a sentence in a criminal case. If and when a district court chooses to impose a sentence outside of the Sentencing Guidelines range, the court "shall state in open court the reasons for its imposition of the particular sentence, and . . . the specific reason for the imposition of a sentence different from that described" in the Guidelines. 18 U.S.C. § 3553(c)(2). The court must also "state[] with specificity" its reasons for so departing "in a statement of reasons form." Id.
"The sentencing court's written statement of reasons shall be a simple, fact-specific statement explaining why the guidelines range did not account for a specific factor or factors under § 3553(a)." United States v. Davis, 08-CR-332, 2010 WL 1221709, at *1 (E.D.N.Y. Mar. 29, 2010) (Weinstein, J.). Section 3553(a) provides a set of seven factors for the Court to consider in determining what sentence to impose on a criminal defendant. The Court addresses each in turn.
The first § 3553(a) factor requires the Court to evaluate "the nature and circumstances of the offense and the history and characteristics of the defendant." 18 U.S.C. § 3553(a)(1).
Defendant was born in Santo Domingo, Dominican Republic, on March 21, 1979, to unmarried parents. Presentence Investigation Report ("PSR") ¶ 27, ECF No. 18. Defendant's father broke up with Defendant's mother during her pregnancy for reasons unknown to Defendant, and Defendant has never met his father. Id. Defendant and his half-brother were raised by his mother "under impoverished economic conditions," but Defendant reported having had a normal childhood. Id. ¶ 28. When Defendant was eleven years old, his mother married Matias Aybar, with whom Defendant also maintains a good relationship. Id. ¶ 29; see also Def.'s Sentencing Mem. at 1-2 n.2, ECF No. 20 (noting correct spelling of Defendant's stepfather's name). Indeed, Defendant maintains "close and loving relationships with all family members," including his mother, "who continues to reside in the Dominican Republic, [and] suffers from diabetes, depression, and financial problems." PSR ¶ 27.
Defendant has "had to stop studying periodically due to various life occurrences," but he obtained his high school diploma in 1997 and took classes toward his bachelor's degree — which he has yet to earn — from 1998 to 2015. PSR ¶ 37; see also Def.'s Sentencing Mem. at 1-2 n.2 (explaining Defendant "needs to complete five more semesters" to obtain his degree). Defendant does, however, have a lengthy employment history: Between 1992 and 2007, he worked as a salesperson for an office supplies distributor; a switchboard operator; a salesperson for a cellular telephone dealer; a factory employee for a pharmaceuticals manufacturer; and an accounting employee for an electrical generator plant. PSR ¶ 43. From 2007 to 2014, he worked in the accounting department for a company that "handled franchises for supermarkets, toy stores, and hardware stores," but he resigned after his immediate supervisor blocked his promotion. Id. ¶ 42. Prior to his arrest, Defendant was working as a salesperson at a wholesale pharmaceuticals distributor in which capacity he was earning between 25,000 and 50,000 Dominican pesos a month, depending on commission. Id. ¶ 41.
From 2003 to 2007, Defendant was in a long-term romantic relationship with Betzaida Pilarte. Id. ¶ 30. Defendant and Ms. Pilarte had a son, who is about twelve years old and suffers from Down syndrome. Id. Prior to his arrest, Defendant saw his son every two weeks and provided 2,000 Dominican pesos in court-ordered support each month. Id. Ms. Pilarte reportedly "was upset to learn of the defendant's arrest because she is now not receiving financial support" and "is experiencing financial difficulties." Id. In August 2008, Defendant married Yassmine Ramirez. Id. ¶ 31. The couple have a child together who is currently about nine years old. Id. Defendant and Ms. Ramirez divorced in 2014 "because they were not getting along anymore," but they maintain an "amicable" relationship. Id. Prior to his arrest, Defendant also provided financially for his son with Ms. Ramirez. Id.
On January 29, 2016, Defendant traveled to John F. Kennedy International Airport ("JFK") in Queens, New York, on a regularly scheduled flight from Santo Domingo, Dominican Republic. Id. ¶ 3. This was his third trip to the United States,
Upon Defendant's arrival at JFK, he was selected for an enforcement examination by U.S. Customs and Border Protection ("CBP") officers. Id. ¶ 3. Suspicious of how heavy the mortar-and-pestle sets were, the CBP officers probed them and ultimately found cocaine in all three mortars and two of the pestles. Id. Defendant was placed under arrest and his cellular phone and the $200 he had in his possession were confiscated. Id. ¶ 6. Defendant was advised of his Miranda rights, after which he agreed to speak with Homeland Security Investigations ("HSI") agents. Id. ¶¶ 5-6. During that interview, Defendant was questioned, inter alia, about "pictures of prior law enforcement seizures of cocaine pellets" found on Defendant's phone. Id. ¶ 5. Defendant explained that his female friend had sent the pictures "because he wanted to bring Mama Juana (a rum/red wine drink) to the United States, and his friend told him that people who had brought Mama Juana had been stopped with it because they had smuggled drugs inside it," but that he did not know how his friend had gotten the pictures. Id. Defendant was incarcerated from the date of his arrest to March 3, 2016, when he was released on a $50,000 Personal Recognizance Bond with Pretrial Services reporting requirements. Id. at 1. To date, Defendant has fully complied with all reporting requirements. Id.
The second § 3553(a) factor instructs the Court to consider "the need for the sentence imposed (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." 18 U.S.C. § 3553(a)(2).
The Court's sentence punishes Defendant for violating federal law and is crafted to deter him and others from engaging in similar criminal activity in the future. The Court takes into account Defendant's lack of criminal history and his need to continue supporting his family. The Court's sentence further recognizes both Defendant's minimal participation in the crime and the need to promote respect for the law.
The third § 3553(a) factor requires the Court to detail "the kinds of sentences available" for Defendant. 18 U.S.C. § 3553(a)(3).
Defendant pleaded guilty to Importation of Cocaine in violation of 21 U.S.C. § 952(a) and 21 U.S.C. § 960(a)(1), for which he faces a maximum term of imprisonment of twenty years. See 21 U.S.C. § 960(b)(3). If a term of imprisonment is imposed, the Court must also impose a term of supervised release of at least three years unless Defendant satisfies the mitigating factors in 18 U.S.C. § 3553(f), in which case the statutory minimum does not apply. See 21 U.S.C. § 960(b)(3). The mitigating factors are as follows:
18 U.S.C. § 3553(f). Because the offense is a Class C felony, Defendant may also be sentenced to a term of probation of not less than one nor more than five years, with one of the following conditions, unless extraordinary circumstances exist: a fine, restitution, or community service. 18 U.S.C. § 3561(c)(1). Defendant also faces a maximum fine of $1,000,000.00, id. § 3571(b), and the mandatory special assessment of $100.00, id. § 3013.
The fourth § 3553(a) factor requires the Court to discuss "the kinds of sentence and the sentencing range established for . . . the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines." 18 U.S.C. § 3553(a)(4)(A).
Sentencing Guidelines § 2D1.1(a)(5) applies to violations of 21 U.S.C. § 952(a) and, per Guidelines § 2D1.1(c)(7), sets a base offense level of twenty-six. See United States Sentencing Commission, Guidelines Manual, § 2D1.1(a)(5), (c)(8) (Nov. 2016) ("USSG"). Defendant has satisfied all five of the factors outlined in 18 U.S.C. § 3553(f) and Guidelines § 5C1.2, however, so he is eligible for a two-level safety-valve reduction. USSG § 2D1.1(b)(17). Defendant was also a minimal participant in the offense, however, so a four-level reduction is applied. Id. § 3B1.2(a). Defendant's acceptance of responsibility by pleading guilty and his timely notification of his intent to do so permits a further reduction by three levels. Id. § 3E1.1. Accordingly, Defendant's total adjusted offense level is seventeen. Defendant does not have a criminal history, which results in a criminal history score of zero and a criminal history category of one. PSR ¶¶ 20-25.
With a total offense level of seventeen and a criminal history category of one, the Guidelines suggest a term of imprisonment of between twenty-four and thirty months. USSG ch. 5, pt. A. The Guidelines further recommend a term of supervised release of one to three years because Defendant has satisfied the 18 U.S.C. § 3553(f) mitigating factors, meaning no statutory minimum for supervisory release applies, id. § 5D1.2(a)(2); a fine of between $10,000.00 and $1,000,000.00, id. § 5E1.2(c); and payment of the costs of prosecution, id. § 5E1.5. Defendant is ineligible for probation under the Guidelines. See id. § 5B1.1 cmt. n.2.
The fifth § 3553(a) factor, which requires the Court to evaluate "any pertinent policy statement . . . issued by the Sentencing Commission," 18 U.S.C. § 3553(a)(5), is not applicable in this case.
The sixth § 3553(a) factor requires the Court to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. § 3553(a)(6). In considering the other six § 3553(a) factors, the Court's sentence sufficiently avoids unwarranted sentence disparities.
Finally, the seventh § 3553(a) factor, which requires the Court to touch upon "the need to provide restitution to any victims of the offense," 18 U.S.C. § 3553(a)(7), is not applicable in Defendant's case, see 18 U.S.C. § 3663.
A sentence of 12 months and 1 day of incarceration and payment of the $100.00 mandatory assessment, is appropriate and comports with the dictates of § 3553. This sentence is consistent with, and is sufficient but no greater than necessary to accomplish, the purposes of § 3553(a)(2).
The Court expressly adopts the factual findings of the Presentence Investigation Report.
