U.S.
v.
Torres

United States District Court, S.D. New YorkJun 4, 2009
08 Cr. 1062-01 (RWS). (S.D.N.Y. Jun. 4, 2009)

08 Cr. 1062-01 (RWS).

June 4, 2009


SENTENCING OPINION


On March 12, 2009, Tiffany Torres, a/k/a "Tweety" ("Torres" or "Defendant") pleaded guilty to one count of conspiracy to distribute and possession with intent to distribute 5 grams and more of mixtures and substances containing a detectable amount of cocaine base, commonly known as "crack," in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B). For the reasons set forth below, Torres will be sentenced to 36 months' imprisonment and 3 years supervised release. Torres will also be required to pay a special assessment of $100.

Prior Proceedings

On November 3, 2008, Indictment 08 CR 1062 (RWS) was filed in the Southern District of New York. Count 1 of the indictment charges that on June 12, 2007, in the Southern District of New York and elsewhere, Torres and others conspired to distribute and possessed with intent to distribute 5 grams and more of mixtures and substances containing a detectable amount of cocaine base, commonly known as "crack."

On March 12, 2009, Torres appeared before the Honorable Frank Maas in the Southern District of New York and entered a plea of guilty to Count 1 as charged in accordance with a plea agreement.

Defendant's sentencing is currently scheduled for June 8, 2009.

The Sentencing Framework

In accordance with the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), the sentence to be imposed was reached through consideration of all of the factors identified in 18 U.S.C. § 3553(a), including the Guidelines established by the United States Sentencing Commission. Thus, the sentence to be imposed here is 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.

In light of the Court's statutory responsibility "to `impose a sentence sufficient, but not greater than necessary' to accomplish the goals of sentencing," Kimbrough v. United States, 128 S. Ct 558, 571 (2007) (quoting 18 U.S.C. § 3553(a)), and having considered the Guidelines and all of the factors set forth in § 3553(a), it is determined that a non-Guidelines sentence is warranted in the instant case.

The Defendant

The Court adopts the facts set forth in the Presentence Investigation Report ("PSR") with respect to Torres's personal and family history.

The Offense Conduct

The following description draws from the PSR. The specific facts of the underlying conduct are adopted as set forth in that report.

On June 11, 2007, a confidential informant ("CI") working with the United States Bureau of Alcohol, Tobacco, Firearms Explosives ("ATF") informed a Special Agent with the ATF that an unnamed co-conspirator ("CC-1") had offered to sell the CI crack cocaine. The Agent instructed the CI to arrange to purchase 30 grams of crack cocaine from CC-1.

On June 12, 2007, the Agent traveled by car to the vicinity of 145th St. and St. Nicholas Avenue in New York, New York. The CI was waiting on that corner and got into the car with the Agent. The CI pointed to CC-1 and Torres, who were standing nearby in front of a store on St. Nicholas Avenue. The CI informed the agent that CC-1 was the person who wanted to sell the aforementioned 30 grams of crack cocaine for $33 per gram, for a total of $990.00. The agent gave the CI $1,000.00 to purchase the crack cocaine. The CI took the money and walked down the street with CC-1 and Torres. A few minutes later, Torres and the CI walked toward the Agent's car and went inside the car. The CI handed the agent a plastic bag containing a crystalline substance, which the Agent later determined to be 38 grams of crack cocaine. Torres asked the agent to pay her some money for introducing CC-1 to the CI and for arranging the aforementioned sale. The agent paid Torres $100.

Based on the foregoing, a criminal complaint was filed on May 19, 2008 and Torres was arrested via writ from New York State custody on September 2, 2008.

The Relevant Statutory Provision

Pursuant to 21 U.S.C. § 841(b)(1)(C), the maximum term of imprisonment is 20 years.

A term of at least 3 years' supervised release is required if a sentence of imprisonment is imposed, pursuant to 21 U.S.C. § 841(b)(1)(C).

The Defendant is eligible for not less than one nor more than five years' probation, pursuant to 18 U.S.C. § 3561(c)(1).

The maximum fine for Count 1 is $1,000,000 pursuant to 21 U.S.C. § 841(b)(1)(C). A special assessment of $100 is mandatory, pursuant to 18 U.S.C. § 3013.

The Guidelines

The November 1, 2008 edition of the United States Sentencing Commission Guidelines Manual has been used in this case for calculation purposes, pursuant to § 1B1.11(a).

The guideline for the violation of 21 U.S.C. § 841(b)(1)(C) is found in § 2D1.1. The Defendant's criminal conduct involved distribution of approximately 28 grams of crack cocaine. Because the quantity of crack cocaine is greater than 20 grams but less than 35 grams, the base offense level is 26 pursuant to the Drug Quantity Table found in § 2D1.1(c)(7).

Since the offense level is 16 or greater, and because Torres has shown recognition of her responsibility for the offense and has provided timely notification of her intention to plead guilty, allowing the Government to allocate its resources more efficiently, the offense is reduced three levels pursuant to § 3E1.1(a) and (b).

Accordingly, the applicable offense level is 23.

On March 29, 1999, Torres was convicted of 3rd Degree Criminal Sale of a Controlled Substance and sentenced on March 14, 2000, to 5 years probation. Defendant was subsequently resentenced on November 28, 2000 to 1 year imprisonment. Pursuant to §§ 4A1.2(d)(2), this conviction warrants no criminal history points.

On May 29, 2001, Torres was arrested for 7th Degree Criminal Possession of a Controlled Substance and sentenced on May 30, 2001, to time served. Pursuant to § 4A1.1(c), one criminal history point is added.

On May 3, 2002, Torres was arrested for 7th Degree Criminal Possession of a Controlled Substance and sentenced on May 4, 2002, to Conditional Discharge and 2 days community service. Pursuant to § 4A1.1(c), one criminal history point is added.

On May 8, 2002, Torres was arrested for 7th Degree Criminal Possession of a Controlled Substance and sentenced the same day to time served. Pursuant to § 4A1.1(c), one criminal history point is added.

On July 10, 2003, Torres was arrested for 2nd Degree Criminal Trespass and sentenced on July 11, 2003, to time served. Pursuant to § 4A1.1(c)(1), this conviction warrants no criminal history points.

On February 26, 2004, Torres was arrested for 7th Degree Criminal Possession of a Controlled Substance and sentenced on February 27, 2004, to 5 days' imprisonment. Pursuant to § 4A1.1(c), one criminal history point is added.

On June 30, 2004, Torres was arrested for 4th Degree Criminal Facilitation and sentenced on July 6, 2004, to 4 months' imprisonment. Pursuant to § 4A1.1(b), 2 criminal history points are added.

On January 12, 2005, Torres was arrested for 7th Degree Criminal Possession of a Controlled Substance and sentenced on January 12, 2005, to 3 days' imprisonment. Pursuant to § 4A1.1(c), one criminal history point is added.

On January 14, 2005, Torres was arrested for 2nd Degree Criminal Trespass and sentenced on January 15, 2005, to time served. Pursuant to § 4A1.2(c)(1), no criminal history points are warranted.

On February 2, 2005, Torres was arrested for 7th Degree Possession of a Controlled Substance and sentenced on February 4, 2005, to 7 days' imprisonment. Pursuant to § 4A1.1(c), one criminal history point is added.

On February 16, 2005, Torres was arrested for 7th Degree Possession of a Controlled Substance and sentenced on February 18, 2005, to 15 days' imprisonment. Pursuant to § 4A1.1(c), one criminal history point is added.

On April 6, 2005, Torres was arrested for 4th Degree Criminal Facilitation and sentenced on April 13, 2005, to 15 days' imprisonment. Pursuant to § 4A1.1(c), one criminal history point is added.

On June 29, 2005, Torres was arrested for 4th Degree Criminal Possession of a Narcotic Drug and sentenced on November 23, 2005, to 1 year imprisonment. Pursuant to § 4A1.1(b), 2 criminal history points are added.

On July 21, 2005, Torres was arrested for 7th Degree Possession of a Controlled Substance and sentenced on July 26, 2005, to Conditional Discharge and 5 days' community service. Defendant was resentenced on October 20, 2005, to 15 days' imprisonment. Pursuant to § 4A1.1(c), one criminal history point is added.

On August 29, 2005, Torres was arrested for 3rd Degree Attempted Criminal Possession of a Controlled Substance and sentenced on November 23, 2005, to 1 year imprisonment. Pursuant to § 4A1.1(b), 2 criminal history points are added.

On October 4, 2006, Torres was arrested for 7th Degree Possession of a Controlled Substance and sentenced on January 25, 2007, to 60 days' imprisonment. Pursuant to § 4A1.1(b), 2 criminal history points are added.

On August 18, 2007, Torres was arrested for 7th Degree Possession of a Controlled Substance and sentenced on October 10, 2007, to 10 days' imprisonment. Pursuant to § 4A1.1(c), one criminal history point is added.

On December 6, 2007, Torres was arrested for 2nd Degree Criminal Trespass and sentenced on December 7, 2007, to 15 days' imprisonment. Pursuant to § 4A1.2(c)(1), no criminal history points are warranted.

On March 8, 2008, Torres was arrested for 2nd Degree Criminal Trespass and sentenced on May 8, 2008, to time served. Pursuant to § 4A1.2(c)(1), no criminal history points are warranted.

The Defendant has 9 convictions which receive one criminal history point pursuant to § 4A1.1(c). However, only a total of four points may be added under § 4A1.1(c). Thus, 4 criminal history points pursuant to § 4A1.1(c) are added to 8 criminal history points under § 4A1.1(b) for a subtotal criminal history score of 12.

At the time the instant offense was committed, the defendant was on parole. Pursuant to § 4A1.1(d), 2 criminal history points are added.

The instant offense was committed less than two years after the Defendant's release from custody on August 14, 2006 for the sentence imposed on November 23, 2005. Pursuant to § 4A1.1(e), one point is added as two points were added under § 4A1.1(d).

The total criminal history points is 15. According to the sentencing table at Chapter 5, Part A, 15 criminal history points establish a Criminal History Category of VI.

Based on a total offense level of 23 and a Criminal History Category of VI, the Guidelines range for imprisonment is 92 to 115 months.

The Guidelines range for a term of supervised release is three years, the minimum required by statute, pursuant to § 5D1.2(c).

Because the applicable Guidelines range is in Zone D of the Sentencing Table, the Defendant is not eligible for probation, pursuant to § 5B1.1, Application Note #2.

The fine range for the instant offense is from $10,000 to $1,000,000 pursuant to § 5E1.2(c)(3)(A) and (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 $2,157.88 to be used for imprisonment, a monthly cost of $311.94 for supervision, and a monthly cost of $1,990.13 for community confinement.

As a result of committing the offense in Count 1 of the Indictment, Torres shall forfeit to the United States, pursuant to 21 U.S.C. § 853, any and all property constituting or derived from any proceeds the Defendant obtained directly or indirectly as a result of the said violation and any and all property used or intended to be used in any manner or part to commit and facilitate the commission of the violation alleged in Count 1 of the Indictment.

The Remaining Factors of 18 U.S.C. § 3553(a)

Having engaged in the Guidelines analysis, this Court also gives due consideration to the remaining factors identified in 18 U.S.C. § 3553(a) in order to impose a sentence "sufficient, but not greater than necessary," as is required in accordance with the Supreme Court's decision in Booker, 543 U.S. 220, and the Second Circuit's decision in Crosby, 397 F.3d 103. Upon consideration of all of the factors, and in particular § 3553(a)(1), imposition of a non-Guidelines sentence is warranted.

Justification for Downward Departure

As described in the PSR, Torres has led an extremely difficult life. She was one of six children born of a relationship between a mother who struggled with drug abuse and an absentee father. She was raised by a grandmother who was verbally abusive and abused alcohol.

Torres has had a long history of drug addiction, which started when she was introduced to marijuana by her uncle at age 11. The same uncle introduced her to crack at 12, and sexually abused her for three months during that time. She began using crack regularly at age 16. Torres was sent to a group home by her grandmother when she was 15, but has lived on the streets or with friends and associates since she was 16.

Torres has two children, David, age 10, and Kriestien, age 7. David was taken away from Torres at birth because David tested positive for drugs, and she has not seen him in several years. During her pregnancy with her son Kriestien, who was the result of a rape, Torres stopped using drugs. Kristein is currently living with Defendants' sister, age 20, and mother, who continues to struggle with addiction.

Torres suffers from asthma in addition to seizures that she attributes to her drug use.

Torres has never participated in a drug treatment program. She has expressed a desire to seek rehabilitation for her drug addiction. In addition, she has participated in GED classes for the past 6 months while incarcerated at the MDC and expressed an interest in becoming a productive member of society upon her release.

Because a Guidelines term of incarceration would not serve the goals of the penal system with respect to this Defendant, a downward departure from the Guidelines is appropriate.

The Sentence

For the instant offense, Torres will be sentenced to 36 months' imprisonment and a 3-year term of supervised release.

Torres is directed to report to the nearest United States Probation Office within seventy-two hours of release from custody to commence her term of supervised release. It is recommended that Torres be supervised by the district of her residence.

As mandatory conditions of her supervised release, Torres shall: (1) not commit another federal, state, or local crime; (2) not illegally possess a controlled substance; and (3) not possess a firearm or destructive device. The mandatory drug testing condition is suspended due to the imposition of a special condition requiring drug treatment and testing as described below.

Furthermore, the standard conditions of supervision (1-13), set forth in the judgment, shall be imposed with the additional special conditions:

(1) Defendant shall submit her person, residence, place of business, vehicle, or any other premises under her control to a search on the basis that the probation officer has reasonable belief that contraband or evidence of a violation of the conditions of the release may be found. The search must be conducted at a reasonable time and in a reasonable manner. Failure to submit to a search may be grounds for revocation. Defendant shall inform any other residents that the premises may be subject to search pursuant to this condition.

(2) Defendant shall participate in a program approved by the United States Probation Office, which program may include testing to determine whether the Defendant has reverted to using drugs or alcohol. The Court authorizes the release of available drug treatment evaluations and reports to the substance abuse treatment provider, as approved by the Probation Officer. Defendant will be required to contribute to the costs of services rendered (co-payment), in an amount determined by the probation officer, based on ability to pay or availability of third-party payment.

(3) Defendant shall participate in a mental health program approved by the U.S. Probation Office. Defendant shall continue to take any prescribed medications unless otherwise instructed by the health care provider. Defendant shall contribute to the costs of services rendered not covered by third-party payment, if Defendant has the ability to pay. The Court authorizes the release of available psychological and psychiatric evaluations and reports to the health care provider.

(4) Defendant shall participate in a program of education or vocational training to enhance marketable job skills.

In consideration of all the factors set forth in 18 U.S.C. § 3572(a), it does not appear that the Defendant is able to pay a fine, and so the fine in this case shall be waived. A special assessment of $100, payable to the United States, is mandatory and shall be due immediately.

As a result of committing the offense in Count 1 of the Indictment, Torres shall forfeit to the United States, pursuant to 21 U.S.C. § 853, any and all property constituting or derived from any proceeds the Defendant obtained directly or indirectly as a result of the said violation and any and all property used or intended to be used in any manner or part to commit and facilitate the commission of the violation alleged in Count 1 of the Indictment.

The terms of this sentence are subject to modification at the sentencing hearing scheduled for June 8, 2009.

It is so ordered.