Opinion
99 Cr. 967 (RWS)
September 29, 2000
AMENDED SENTENCING OPINION
Defendant Rafael Zarzuela-Cadiz ("Zarzuela-Cadiz") pled guilty on January 7, 2000 to illegal reentry after deportation subsequent to the commission of an aggravated felony, a class C felony, in violation of 8 U.S.C. § 1326. For the reasons set forth below, and subject to the sentencing hearing currently scheduled for September 28, 2000, Zarzuela-Cadiz will be sentenced to 35 months' imprisonment, to run concurrently with the sentence he is currently serving in New York State, to be followed by a three-year term of supervised release. Zarzuela- Cadiz will also be required to pay the mandatory special assessment of $100 pursuant to 18 U.S.C. § 3013.
Zarzuela-Cadiz is a citizen of the Dominican Republic, where he was born in 1963. His father emigrated to the United States while Zarzuela-Cadiz was still very young, and lives at an unknown location in this country. His mother passed away in 1992 of a heart attack in Santo Domingo. Zarzuela Cadiz completed high school in the Dominican Republic in 1983. He first arrived in this country with a six-month student visa when he was 20 years old and overstayed. He first used marijuana when he was 19 years old. On May 21, 1984, he was convicted in the Supreme Court of New York County of manslaughter in the first degree. He was deported in early 1992, following completion of his sentence for that conviction.
Zarzuela-Cadiz first used cocaine and crack when he was 35 years old. He completed a three month drug treatment program while incarcerated at the Clinton Annex Correctional Facility and, previously, in 1998, participated in the Yonkers General Hospital detoxification and drug treatment program.
On January 11, 1999, he was convicted of criminal sale of a controlled substance, to wit, cocaine, in the fifth degree in the Supreme Court of New York and sentenced to two to four years imprisonment. At the time of that offense, he was employed fulltime as a building superintendent. He was arrested for the instant illegal reentry offense on November 18, 1999 at the Clinton Correctional Facility, where he was incarcerated for the 1999 New York offense. He has an aunt/foster mother in the United States who indicates that she will undertake to ensure that he does not return to the United States.
The Guidelines
The Presentence Report prepared by the U.S. Probation Office (the "Presentence Report") grades Zarzuela-Cadiz's offense conduct under the Sentencing Guidelines (the "Guidelines") at a total offense level of 21, after a 16-level enhancement for having reentered the United States illegally after being deported following conviction of an "aggravated" felony, see Guidelines § 2L1.2(b), and a three-level reduction for acceptance of responsibility, see Guidelines § 3E1.l(a) and(b)(2). The Presentence Report assigns Zarzuela-Cadiz a criminal history category of IV.
The Guidelines provide for a sentence of between 57 and 71 months, see Guidelines Sentencing Table, a supervised release period of two to three years, see Guidelines § 5D1.2 (a)(2), and a fine ranging from $7,500 to $75,000, see Guidelines § 5E1.2. The statutory maximum term of imprisonment is twenty years. See 18 U.S.C. § 1326(a) and (b)(2). Probation is not authorized because the applicable guidelines range is in Zone D of the Sentencing Table. See Guidelines § 5B1.l, Application Note 2.
Grounds For A Downward Departure
Sentencing in this case was initially scheduled for April 10, 2000, but was adjourned pending the Probation Department's investigation of Zarzuela-Cadiz's assistance to the New York City Policy Department with narcotics related information in the 184th Street and Saint Nicholas Avenue to Amsterdam Avenue area of New York, New York. This information was later submitted to the Court pursuant to a June 26, 2000 Sentencing Memorandum prepared by the Probation Office. Zarzuela-Cadiz requests a departure pursuant to Guidelines § 5K2.0 for his assistance to local law enforcement authorities.
The Sentencing Memorandum reflects that Zarzuela-Cadiz assisted investigators in the New York City Policy Department with narcotics related information between March 12, 1998 and May 1, 1998, but that it is unknown if the information resulted in any narcotics related arrests. Zarzuela-Cadiz did not receive any monetary compensation for his assistance. The Probation Office does not recommend a downward departure based on this assistance, but does recommend that credit may be given by imposing the sentence for the instant offense to run concurrently with the sentence that Zarzuela-Cadiz has been serving for his New York State conviction since November 1998.
A downward departure may be granted based on a defendant's assistance to state or local law enforcement authorities pursuant to Guidelines § 5K2.0 and, in contrast to a Section 5K1.1 departure for assistance to federal law enforcement authorities, does not require a motion by the government. See Guidelines § 5K2.0 (authorizing a departure where "there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines"); United States v. Kaye, 140 F.3d 86, 88-89 (2d Cir. 1998) (departure for assistance to state or local authorities may be granted pursuant to Guidelines § 5K2.0 whereas departure for assistance to federal authorities is governed by Guideline § 5K1.l and requires government motion).
A departure based on Zarzuela-Cadiz's assistance to local law enforcement authorities is appropriate here, pursuant to Guidelines § 5K2.0. Although no arrests are known to have resulted, nonetheless the record reflects that the defendant attempted to assist local law enforcement authorities. He received no monetary compensation nor is there any indication that he otherwise benefitted from his efforts. In addition, the sentencing in this case was adjourned for several months to permit the Probation Department to investigate the issue of his assistance. During that adjournment, Zarzuela-Cadiz has been in federal custody but his time has been credited to his state sentence only. This also weighs in favor of a departure, so as to prevent Zarzuela Cadiz from serving more, rather than less, time in prison because of his assistance to local law enforcement authorities.
Therefore, Zarzuela-Cadiz will be granted a departure of 22 months from the Guidelines minimum sentence of 57 months, resulting in a sentence of 35 months.
Imposition of Concurrent Sentence
Zarzuela-Cadiz requests that his sentence run concurrently with the New York state sentence he is currently serving. He seeks this relief pursuant to Guidelines § 5G1.3, which governs sentencing of defendants who are already subject to an undischarged term of imprisonment. This case is governed by subsection (c), which provides:
(c) (Policy Statement) In any other case, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.
Guidelines § 5G1.3(c). "Subsection (c), which is a catch-all provision, generally vests broad discretion in the sentencing court in those situations not governed by subsections (a) and (b) ." United States v. Maria, 186 F.3d 65, 71 (2d Cir. 1999);see United States v. Velasquez, 136 F.3d 921, 923 (2d Cir. 1998) (abuse of discretion standard applies to appellate review of district court sentencing decisions under Section 5G1.3(c)).
The Guidelines Commentary to Section 5G1.3 (c) directs the court to:
consider the factors set forth in 18 U.S.C. § 3584 (referencing 18 U.S.C. § 3553(a)) and to be cognizant of:
(a) the type (e.g., determinate, indeterminate/parolable) and length of the prior undischarged sentence;
(b) the time served on the undischarged sentence and the time likely to be served before release;
(c) the fact that the prior undischarged sentence may have been imposed in state court rather than federal court, or at a different time before the same or different federal court; and
(d) any other circumstance relevant to the determination of an appropriate sentence for the instant offense.
The factors under 18 U.S.C. § 3553 include the nature and circumstances of the offense; the history and characteristics of the offender; and the need for the sentence to provide just punishment, adequate deterrence, and needed rehabilitation. See 18 U.S.C. § 3553.
In addition, the Court may in its discretion consider the the multi-count grouping rules in Guidelines §§ 3D1.1- 3D1.4 in determining whether to impose a fully or partially concurrent sentence based on an approximation of the total punishment that would have resulted if all offenses had been consolidated for sentencing. See United States v. Smith, Nos. 96-1687, 97-1172, 1997 WL 701360, at *4 (2d Cir. Nov. 10, 1997) (unpublished opinion); cf. Velasquez, 136 F.3d at 924. Application of these rules would have resulted in no additional penalty for ZarzuelaCadiz due to his drug offense. Under the grouping rules, the drug and illegal reentry offense are each considered a separate group. See Guidelines § 3D1.l-4. The drug offense would constitute a level 12 offense, pursuant to Guidelines § 2D1.l. The illegal reentry offense level is 24, as noted above. Under Guidelines § 3D1.4, because the drug offense is more than nine levels less serious than the illegal reentry offense, it is disregarded in the total offense level. Thus, had Zarzuela-Cadiz been sentenced at the same time for the two offenses, he would not have received a longer sentence than he would have simply for the illegal reentry charge.
Prior to the 1995 amendments to the Sentencing Guidelines, the commentary to Section 5G1.3 provided that courts could determine whether to impose a concurrent sentence based on these such an approximation. See Guidelines App. C, Amend. 535; United States v. Whiteley, 54 F.3d 85, 90 (2d Cir. 1995). Although the 1995 amendment eliminated those rules as a preferred methodology in favor of the broader, more discretionary, multi-factor analysis now reflected in subsection 5G1.3, a sentencing court may still consider the former method in the exercise of its discretion. See Smith, 1997 WL 701360, at *4.
Section 2D1.1 provides that a drug offense involving less than 25 grams of cocaine is a level 12 offense. The statute under which Zarzuela-cadiz was convicted does not require a minimum amount. See N.Y. Penal Law § 220.31 (McKinney 2000).
Illegal reentry is not a trivial offense. However, the goals of deterrence and punishment will be adequately served by ordering that the sentence for illegal reentry run concurrently with zarzuela — Cadiz's undischarged state sentence. Cognizant of the aforementioned factors, given Zarzuela-Cadiz's efforts to address his drug abuse problem, the fact that he was gainfully employed at the time of his offense, the fact that he has an aunt/foster mother in the United States who has indicated she will seek to ensure that he does not return to the United States, and given the possible disparity in the length of his sentence because he was not charged with and sentenced on the state offense and the illegal reentry offense simultaneously1 the goals of reasonable punishment, deterrence, and rehabilitation will be sufficiently served if his sentence runs concurrently with his state sentence. Zarzuela-Cadiz has served approximately 22 months of his state sentence and his conditional release date for the state offense is July 16, 2001. Even with the sentences running concurrently, the imposition of a 35 month sentence in this case ensures that Zarzuela-Cadiz will serve sufficient additional time to constitute reasonable punishment.
The Sentence
Therefore, Zarzuela-Cadiz shall be sentenced to a term of 35 months' incarceration, to run concurrently with the sentence he is currently serving in New York State, followed by three years of supervised release.
As conditions of his supervised release Zarzuela-Cadiz shall, for the term of his supervision: (1) abide by the standard conditions of supervision, see Guidelines § 5D1.3 (c)(l)-(13); (2) not commit another federal, state, or local crime; (3) not illegally possess a controlled substance; and (4) not possess a firearm or destructive device. The mandatory drug testing condition is suspended and instead the following special condition shall apply, i.e., Zarzuela-Cadiz will participate in a program approved by the United States Probation Office for substance abuse, which program may include testing to determine whether he has reverted to the use of drugs or alcohol. Zarzuela- Cadiz will be required to contribute to the costs of services rendered (copayment) in an amount to be determined by the probation officer, based on ability to pay or availability of third-party payment. In addition, Zarzuela-Cadiz must cooperate with the INS in all deportation matters.
Zarzuela.-Cadiz is to report to the nearest probation office within 72 hours of his release from custody. Supervision shall be by the district of his residence. Zarzuela-Cadiz shall also pay to the United States the mandatory special assessment of $100, which shall be due immediately.
This sentence is subject to further hearing on September 28, 2000.
It is so ordered.