Opinion
No. 02 Cr. 0837 (RWS).
June 8, 2005
SENTENCING OPINION
The sentence previously announced by this Court with respect to defendant Antonio Ortiz-Zayas ("Ortiz-Zayas") is vacated to the extent that it imposed a term of incarceration of 91 months. As set forth below, a term of incarceration of 60 months is hereby imposed. No other change to the previously announced sentence is warranted.
Prior Proceedings
After a jury trial, Ortiz-Zayas was convicted on June 10, 2003 of one count of Conspiracy to Illegally Engage in Dealing Firearms in violation of 18 U.S.C. § 371 ("Count 1") and one count of Illegal Sale of Firearms in violation of 18 U.S.C. §§ 922(a)-(1)(A) and 922(a)(2) ("Count 2"). On February 10, 2004, Ortiz-Zayas was sentenced to 92 months of incarceration for his offenses.
In the sentencing opinion dated December 11, 2003, consecutive terms of incarceration for Counts 1 and 2 totaling 92 months were imposed without explanation as to why such consecutive terms were warranted. U.S. v. Ortiz-Zayas, No. 02 Crim. 837 (RWS), 2003 WL 22953161, at *4 (S.D.N.Y. Dec. 15, 2003). At the February 3, 2004 sentencing hearing, the Court, based on its reading of § 5G1.2, imposed the 60-month maximum terms of incarceration for Counts 1 and 2 and directed that these terms be served concurrently. At a February 10, 2004 hearing, this sentence was corrected pursuant to Fed.R.Crim.P. 35(a), and the 92-month sentence (comprised of consecutive terms of incarceration for Counts I and 2) was imposed as required by § 5G1.2(d).
On May 4, 2004, Ortiz-Zayas' co-defendant Steven Manuel Torres ("Torres"), who plead guilty on May 21, 2003 to the same offenses that Ortiz-Zayas was subsequently convicted of, was sentenced to concurrent terms of imprisonment of 18 months for Counts 1 and 2.
By order dated March 11, 2005, the Second Circuit remanded this case to this Court to determine whether the previously imposed sentence was consistent with the Supreme Court's decision andUnited States v. Booker, 125 S. Ct. 738 (2005) and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). Since the Second Circuit's order was issued, both the government and Ortiz-Zayas' counsel have submitted letters concerning the propriety of the previously imposed sentence. Sentencing Framework
In accordance with the Supreme Court's decisions in Booker and Crosby, the sentence to be imposed must be reached through consideration of all of the factors identified in 18 U.S.C. § 3553 (a), including the advisory Sentencing Guidelines (the "Guidelines") establishing by the United States Sentencing Commission. Thus, the sentence to be imposed must be the result of a consideration of:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) 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;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for —
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . .;
(5) any pertinent policy statement . . . [issued by the Sentencing Commission];
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.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. See Crosby, 397 F.3d at 114-15.
Discussion
The following guidelines calculation lead to the imposition of Ortiz-Zayas' 92-month term of incarceration. Based on an offense level of 26 and a Criminal History Category of IV, Ortiz-Zayas's guideline range for imprisonment was calculated to be 92 to 115 months. The maximum term of imprisonment on each count for which Ortiz-Zayas was convicted was five years, or 60 months. According to § 5G1.2(d):
If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment. § 5G1.2(d) (emphasis added). The Guidelines therefore provide that the sentence on one of Ortiz-Zayas's two counts run consecutively in order to reach the prescribed guideline range.
However, pursuant to the pre-Booker sentencing regime, this Court did not previously consider all of the factors enumerated in 18 U.S.C. § 3553(a) when imposing Ortiz-Zayas' sentence. In particular, the Court was constrained from considering section 3553(a)(6), which requires that the Court take into account "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). Prior to Booker, courts of appeals, including the Second Circuit, took the position that section 3553(a)(6) did not provide any basis for downward departures in order to avoid unwarranted disparities in the sentences imposed on co-defendants. See United States v. Joyner, 924 F.2d 454, 460 (2d Cir. 1991) (stating that "[t]o reduce the sentence by a departure because the judge believes that the applicable range punishes the defendant too severely compared to a co-defendant creates a new and entirely unwarranted disparity between the defendant's sentence and that of all similarly situated defendants throughout the country"); see also U.S. v. McMutuary, 217 F.3d 477, 489 (7th Cir. 2000) (stating that "most other courts have concluded that sentencing disparities between co-defendants should never constitute a permissible basis for departure from the Guidelines' sentencing range") (citing, inter alia, United States v. McKnight, 186 F.3d 867, 869 (8th Cir. 1999); United States v. Contreras, 180 F.3d 1204, 1209-10 (10th Cir. 1999); United States v. Lawrence, 179 F.3d 343, 351 (5th Cir. 1999); United States v. Perkins, 108 F.3d 512, 515 (4th Cir. 1997)); United States v. Higgins, 967 F.2d 841, 845 (3d Cir. 1992).
However, pre-Booker courts made clear that the need to avoid disparities in the sentences imposed on co-defendants was an issue that a sentencing court could consider when selecting a particular sentence within a Guideline range. See, e.g., United States v. Newby, 11 F.3d 1143, 1150 (3d Cir. 1993).
Since Booker, a growing number of courts have "held that sentencing judges are `no longer prohibited from considering the disparity between codefendants in fashioning a reasonable sentence.'" Ferrara v. United States, ___ F.3d ___, 2005 WL 1205758, at *11 (D. Mass. May 13, 2005) (quoting United States v. Hensley, No. 2:04 CR 10081, 2005 WL 705241, at *2 (W.D. Va. Mar. 29, 2005)); see also United States v. McGee, ___ F.3d ___, 2005 WL 1324815, at *17 (7th Cir. June 3, 2005); Simon v. U.S., 361 F. Supp. 2d 35, 49 (E.D.N.Y. 2005).
It should be noted that in an unpublished summary order that was entered after Booker and Crosby were announced, the Second Circuit reaffirmed the Joyner court's construction of section 3553(a)(6). See United States v. Toohey, 2005 WL 1220361, at *2 (2d Cir. May 23, 2005). The Toohey court stated:
[Even after Booker,] Joyner's construction of the role the Guidelines play in [the] § 3553(a)(6) consideration remains the same. See United States v. Booker, 125 S.Ct. at 761, 767 (emphasizing the continued importance of the Guidelines to avoiding unwarranted sentencing disparities). Thus, a sentencing court does not reasonably satisfy its statutory obligation under § 3553 (a)(6) when it only compares discrete cases or defendants. Rather, to identify a reasonable sentence, § 3553(a) (6) expects a court to consider whether a defendant is favored or disfavored by a particular sentence "compared to all those similarly situated defendants." United States v. Joyner, 924 F.2d at 461.Id.
Here, the term of incarceration imposed on Ortiz-Zayas was more than five times longer than that imposed on Torres, despite the fact that the two men participated together in the offenses. To be sure, there are significant differences between the prior records of Ortiz-Zayas and Torres, and these differences justify the imposition of a significantly harsher sentence on Ortiz-Zayas. Torres had no criminal convictions prior to committing the instant offense. In contrast, Ortiz-Zayas' record contained several prior criminal adjudications. In particular, Ortiz-Zayas pled guilty in 1988 in Bronx Supreme Court to robbery in the first degree, and in 1996, he was convicted of possession of a criminally dangerous substance on school property by the Superior Court in Atlantic City, New Jersey. The instant offense was committed less than two years after Ortiz-Zayas' release from custody for the 1996 offense.
These differences in prior history notwithstanding, the term of incarceration imposed on Ortiz-Zayas is disproportionately long in comparison to that imposed on Torres. In order to reduce this disparity, a non-guidelines sentence is warranted pursuant to 18 U.S.C. § 3553(a)(6).
The Sentence
Based on the foregoing, the previously imposed term of incarceration is vacated. Ortiz-Zayas is hereby sentenced to separate terms of incarceration of sixty (60) months for Counts 1 and 2. These terms of incarceration shall run concurrently. No other change to the previously imposed sentence is warranted. This amended sentence is subject to modification at the June 9, 2005 resentencing hearing.
It is so ordered.