Free Sentencing Memorandum - District Court of Connecticut - Connecticut

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA v. VINCENTE OJEDA : : : : : : CRIMINAL NO. 3:02CR191(CFD)

Date: April 14, 2005

UNITED STATES' SUPPLEMENTAL SENTENCING MEMORANDUM On January 13, 2004, the defendant Vicente Ojeda pleaded guilty to Count Ten of the Indictment, which charged him with knowingly and intentionally possessing with intent to distribute and distributing 5 grams of more of cocaine base in violation of 21 U.S.C. § 841(b)(1)(B)(iii). The Presentence Report (PSR) grades the defendants criminal history category at VI, based on a scoring of 13 criminal history points. See PSR at ¶¶ 41-49. Additionally, because the

defendant has sustained prior convictions for both a crime of violence and narcotics distribution, he is a career offender under U.S.S.G. § 4B1.1. Accordingly, the PSR calculates the

defendant's sentencing range at 188 to 235 months imprisonment. See PSR at ¶ 70. As the Government noted in its Memorandum in

Aid of Sentencing, filed on or about March 29, 2004, the defendant did not object to the sentencing calculation and,

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-2moreover, had not advanced any grounds for a departure.1 The

Government, similarly, is unaware of any basis for a departure below the controlling sentencing range. The Government does not

object to a sentence at the low end of the defendant's range. Sentencing Scheme post Booker In United States v. Booker, 125 S. Ct. 738, 2005 WL 50108 (2005), the Supreme Court held that the United States Sentencing Guidelines, as written, violate the Sixth Amendment principles articulated in Blakely v. Washington, 124 S.Ct. 2531 (2004). The

Court determined that a mandatory system in which a sentence is increased based on factual findings by a judge violates the right to trial by jury. As a remedy, the Court severed and excised the

statutory provision making the Guidelines mandatory, 18 U.S.C. § 3553(b)(1), thus declaring the Guidelines "effectively advisory." Booker, 2005 WL 50108, at *16. This ruling results in a system

in which the sentencing court, while required to consider the Guidelines, may impose a sentence within the statutory maximum penalty for the offense of conviction. The sentence will be Id. at *24.

subject to appellate review for "reasonableness."

The defendant did undergo a psychiatric examination, which was performed by Dr. Theodore Mueller, M.D., Department of Psychiatry, Yale University School of Medicine. The Government has received a copy of the $4000 invoice for Dr. Mueller's services, which were rendered in November 2004, but has not been provided a copy of the report. Counsel for the defendant advised the court in a letter dated January 20, 2005, that the defendant will not rely on the doctor's report for sentencing purposes.

1

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-3The Court of Appeals for the Second Circuit has summarized the impact of Booker as follows: First, the Guidelines are no longer mandatory. Second, the sentencing judge must consider the Guidelines and all of the other factors listed in section 3553(a). Third, consideration of the Guidelines will normally require determination of the applicable Guidelines range, or at least identification of the arguably applicable ranges, and consideration of applicable policy statements. Fourth, the sentencing judge should decide, after considering the Guidelines and all the other factors set forth in section 3553(a), whether (i) to impose the sentence that would have been imposed under the Guidelines, i.e., a sentence within the applicable Guidelines range or within permissible departure authority, or (ii) to impose a non-Guidelines sentence. Fifth, the sentencing judge is entitled to find all the facts appropriate for determining either a Guidelines sentence or a non-Guidelines sentence. United States v. Crosby, 397 F.3d 103, 113(2d Cir. Feb. 2, 2005) (emphasis added). When imposing sentence, a district court must

be mindful that "Booker/Fanfan and section 3553(a) do more than render the Guidelines a body of casual advice, to be consulted or overlooked at the whim of a sentencing judge." Id. Both the

Supreme Court and the Court of Appeals expect "sentencing judges faithfully to discharge their statutory obligation to `consider' the Guidelines and all of the other factors listed in section 3553(a), . . . and that the resulting sentences will continue to substantially reduce unwarranted disparities while now achieving somewhat more individualized justice." Id. at 114.

In other words, a sentencing now involves two analytic stages: first, a determination of the applicable Guideline range

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-4(including any departures); and second, a determination of whether in light of the Guidelines and the other factors listed in § 3553(a), there is any reason to impose a non-Guidelines sentence. As to Stage One, the applicable Guideline range "is normally to be determined in the same manner as before Booker/Fanfan." Id. at 20; see id. at 19. In limited circumstances, "precise

calculation of the applicable Guidelines range may not be necessary" when a judge determines that either of two (not necessarily overlapping) ranges applies, and if "the sentencing judge, having complied with section 3553(a), makes a decision to impose a non-Guidelines sentence, regardless of which of the two ranges applies." Id. at 21. Such may be true in cases involving

"complicated matters, for example, determination of monetary loss," or "close questions . . . as to the precise meaning or application of a policy statement authorizing a departure." Id.

In general, however, Stage One requires the Court to engage in the familiar process of making factual findings by a preponderance of the evidence, and interpreting and applying the Guidelines to those facts in order to ascertain the appropriate sentencing guidelines range. As to Stage Two, the judge must consider the guidelines in conjunction with the other factors enumerated in § 3553(a), in order to determine whether there is any reason to deviate from

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-5the guideline range indicated in Stage One. These factors

include: (1) "the nature and circumstances of the offense and history and characteristics of the defendant"; (2) the need for the sentence to serve various goals of the criminal justice system, including (a) "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment," (b) to accomplish specific and general deterrence, (c) to protect the public from the defendant, (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 sentencing range set forth in the Guidelines; (5) policy statements issued by the Sentencing Commission; (6) the need to avoid unwarranted sentencing disparities; and (7) the need to provide restitution to victims. Because the Guidelines reflect the Sentencing Commission's considered judgment about all of the factors set forth in § 3553(a), the Supreme Court and the Second Circuit have made it clear that the Guidelines continue to play a central role in a sentencing court's § 3553(a) calculus. Writing for the remedial

majority in Booker, Justice Breyer explained that sentencing courts, "while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing." 2005 WL 50108 at *27. As the Court of Appeals has pointed out,

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-6"the excision of the mandatory aspect of the Guidelines does not mean that the Guidelines have been discarded." Crosby, at 111.

[I]t is important to bear in mind that Booker/Fanfan and section 3553(a) do more than render the Guidelines a body of casual advice, to be consulted or overlooked at the whim of a sentencing judge. Thus, it would be a mistake to think that, after Booker/Fanfan, district judges may return to the sentencing regime that existed before 1987 and exercise unfettered discretion to select any sentence within the applicable statutory maximum and minimum. On the contrary, the Supreme Court expects sentencing judges faithfully to discharge their statutory obligation to "consider" the Guidelines and all of the other factors listed in section 3553(a). We have every confidence that the judges of this Circuit will do so, and that the resulting sentences will continue to substantially reduce unwarranted disparities while now achieving somewhat more individualized justice. In short, there need be no "fear of judging." Id. at 113. In the vast majority of cases, a sentence within the advisory guideline range will be the most effective way of promoting uniform, fair sentencing throughout the nation in compliance with § 3553(a). the Supreme Court. This view is shared by Congress and

As every Supreme Court justice in the various

opinions in Booker recognized, the Guidelines carry out the express national policy, as articulated by Congress, that sentences be uniform across the country to the extent possible and be based on the offender's actual conduct and history. See,

e.g., Booker, 2005 WL 50108 at *21 (majority opinion of Breyer, J.) ("Congress' basic goal in passing the Sentencing Act was to move the sentencing system in the direction of increased

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-7uniformity."); id. at *19 (same) ("Congress' basic statutory goal -- a system that diminishes sentencing disparity -- depends for its success upon judicial efforts to determine, and to base punishment upon, the real conduct that underlies the crime of conviction."); id. at *42 (dissenting opinion of Stevens, J.) ("The elimination of sentencing disparity, which Congress determined was chiefly the result of a discretionary sentencing regime, was unquestionably Congress' principal aim."); id. at *47 (dissenting opinion of Scalia, J.) ("the primary objective of the Act was to reduce sentencing disparity."). See also United

States v. Wanning, No. 4:03-CR-3001-1, slip op. at 6 (D. Neb. Feb. 3, 2005) ("The Guidelines and their ranges were explicitly crafted by the Sentencing Commission at the direction of Congress to implement the statutory purposes of sentencing."). The Guidelines, aiming to achieve the uniform and appropriate treatment of like crimes, represent the distillation of 15 years of careful study of sentencing practices across the country, and correlate as well to the varying severity of crimes as defined by Congress. The Guidelines, consisting of offense

characteristics and various grounds for departure, address all of the considerations relevant to sentencing, as articulated in 18 U.S.C. § 3553(a), not least of which are the nature and circumstances of the offense (which are covered thoroughly in Chapters 2 and 3 of the Guidelines Manual), the history and

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-8characteristics of the defendant (which are covered in Chapter 4 with respect to criminal history and Chapter 5 with respect to departures based on the most commonly considered personal characteristics), and the need to provide restitution to victims (Chapter 5, Part E). Thus, fidelity to the Guidelines best accomplishes the purpose of fair and consistent sentencing outlined in § 3553(a), and should occur absent truly unusual circumstances. See

Wanning, slip op. at 8-9 (concluding that "judges should, in the exercise of their newly minted discretion, normally follow the Guidelines, and the ranges produced by them, because that approach represents the best (though an imperfect) method of sentencing"). The government commends to the Court's attention

the scholarly opinions of Judge Cassell in United States v. Wilson, 2005 WL 78552 (D. Utah Jan. 13, 2005) ("Wilson I"), and No. 2:03-CR-00882 PGC (D. Utah Feb. 2, 2005) ("Wilson II"), available at http://www.utd.uscourts.gov/reports/wilson2.pdf, which reach this same conclusion. As Judge Cassell explained,

the Guidelines represent the product of an expert commission which has studied the sentencing process at great length, under the specific mandate of Congress to fashion recommended sentences that carry out the purposes defined by Congress. The resulting

Guidelines plainly reflect the public's will, as expressed by their democratically elected representatives, in that Congress

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-9has repeatedly approved of the Guidelines or acted to adjust them to accord with legislatively determined policies. Wilson further

observed that guided sentencing appears to have had a positive impact in deterring criminal conduct throughout the country, and thus serves the purpose of deterrence as well as punishment and fairness. Judge Cassell further observed that the Guidelines

provide appropriate guidance, which is fully consonant with legislative policy, as to when particular offender characteristics properly factor into the sentencing calculus -for example, forbidding consideration of factors such as race, religion, or socioeconomic status, and assigning only modest weight to factors such as family ties, age, and civic contributions. Wilson II, slip op. at 17. Importantly, Judge

Cassell properly concluded that one of the primary goals of the criminal sentencing system is "equal justice under the law -with a sentencing statute that mandates similar outcomes for similar crimes committed by similar offenders." Id. at 31. "The

only realistic way to insure this is to follow generally the Guidelines." Id. For all of these reasons, a court should "give

heavy weight to the Guidelines in determining an appropriate sentence. In the exercise of its discretion, the court will only

depart from those Guidelines in unusual cases for clearly identified and persuasive reasons." Wilson I, at *1.

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-10Accordingly, a sentence within the guideline range is presumptively reasonable, and accommodates the congressional purpose set forth in § 3553(a), affirmed by the Supreme Court, of obtaining fair sentences which are uniform to the extent possible. The government anticipates that only sentences outside

the guideline range will be subject to appellate scrutiny for reasonableness in light of the Congressional mandate, absent truly extraordinary circumstances. The Instant Case The evidence developed by the FBI reveals that the defendant was a close and trusted associate of Sammy Virella, regularly assisting in the distribution of crack cocaine and powder cocaine. See PSR at ¶ 25. The FBI, using a cooperating witness,

was able to purchase crack cocaine from Ojeda on February 24, 2002, February 27, 2002 and March 1, 2002. Counts Nine, Ten & Eleven. See Indictment,

In addition, on April 7, 2002, Ojeda

met with the CW and collected a $2,150 drug payment for a prior deal done with Virella. See PSR at ¶ 24. At the time the

defendant committed these narcotics crimes, he was on probation - having been convicted approximately six months earlier in the Superior Court for sale of narcotics. See PSR at ¶ 47.

Although the defendant is a career offender, see PSR at ¶ 27, a status that automatically catapults him to a Criminal History Category VI, it is worth noting that his criminal record

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-11totals 13 points and also provides an independent basis for a Criminal History Category VI. Mr. Ojeda's convictions primarily At age 19 he was convicted of

concern violence and drug dealing.

Assault 3rd after having punched and bloodied a 15 year old female. See PSR at ¶ 43. Several months after this incident,

Ojeda was arrested at Maloney High School after an employee heard students shout "he hit her" and then saw the defendant shoving a female student down the hall and into the girls' locker room. See PSR at ¶ 44 (Ojeda was convicted of Criminal Trespass). Mr.

Ojeda has also been convicted of Assault 2nd after having pushed his sister off a porch, punching her in the head and hitting her with a 14 ounce spinach can -- again bloodying his victim. PSR at ¶ 46. Ojeda has also been convicted of Possession of See PSR at ¶¶ 42 & 47. He has See

Narcotics and Sale of Narcotics.

also demonstrated a lack of respect for the criminal justice system, having been convicted of failure to appear and interfering, see PSR at ¶¶ 45 & 48, and, as noted above, he committed the instant crime while on probation for selling drugs and only a short time after having been released from prison. See PSR at ¶ 49. Thus, the nature and circumstances of this offense, which is a serious felony drug crime, along with the history and characteristics of this defendant, which reveal a violent, impulsive and incorrigible drug dealer, suggest that a sentence

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-12at the low end of the controlling guidelines range is reasonable and appropriate. The Government is not aware of any other

factors under section 3553(e) that militate in favor of a nonguidelines sentence in this matter. Conclusion The defendant has been in custody since his arrest on July 20, 2002. As the Government noted in its initial Sentencing

Memorandum, Mr. Ojeda's written submission to the court seems to be an appropriate statement of remorse and a sincere acknowledgment of the seriousness of the criminal misconduct that brings him before the court. The Government, therefore, does not object to a sentence at the low end of the defendant's range, which will still constitute a significant term of incarceration. Wherefore, the United States does not object to a sentence of 188 months' imprisonment. Respectfully submitted, KEVIN J. O'CONNOR UNITED STATES ATTORNEY MICHAEL J. GUSTAFSON ASSISTANT UNITED STATES ATTORNEY 157 Church Street New Haven, Connecticut 06510 Tel. (203) 821-3748 Federal Bar No. CT 01503

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-13CERTIFICATION OF SERVICE This is to certify that the within and foregoing has been mailed, via first-class mail, this _____ day of April, 2005, to: Jonathan Einhorn 412 Orange Street New Haven, CT 06511 Jacqueline Carroll US Probation Officer United States Probation Office Connecticut Financial Center 157 Church Street, 22nd Floor New Haven, CT 06510

MICHAEL J. GUSTAFSON ASSISTANT UNITED STATES ATTORNEY