United States v. Figueroa

WILLIAM F. KUNTZ, II, United States District Judge

MEMORANDUM AND ORDER WILLIAM F. KUNTZ, II, United States District Judge : On June 15, 2015, Defendant Miguel Figueroa ("Defendant") pled guilty to Hobbs Act Robbery Conspiracy and Unlawful Use of a Firearm. ECF No. 90 ("Guilty Plea"). The Court now provides a complete statement of reasons pursuant to 18 U.S.C. § 3553(c) of those factors set forth by Congress and the President and contained in 18 U.S.C. § 3553(a). For the reasons discussed below, Defendant is hereby sentenced to two hundred and forty-eight (248) months of incarceration, to be followed by five (5) years of supervised release.

On February 27, 2014, Defendant was charged by a Superseding Indictment with Hobbs Act Robbery Conspiracy under 18 U.S.C. §§ 1951(a) and 3551 et seq. ("Count One"); Heroin and Cocaine Distribution Conspiracy under 21 U.S.C. §§ 846, 841(b)(1)(A)(i), and 841(b)(1)(A)(ii)(II) ("Count Two"); Attempted Possession of Cocaine and Heroin under 21 U.S.C. §§ 846, 841(b)(1)(A)(i), and 841(b)(1)(A)(ii)(II) ("Count Three"); and Unlawful Use of a Firearm under 18 U.S.C. §§ 924(c)(1)(A)(i), 2, and 3551 et seq. ("Count Four"). ECF No. 30 ("Superseding Indictment") at 1-3. On June 15, 2015, Defendant pled guilty to Counts One and Four of the Superseding Indictment. See Guilty Plea at 1.

The Court hereby sentences Defendant and sets forth its reasons pursuant to 18 U.S.C. § 3553(c)(2).

18 U.S.C. § 3553 outlines the procedures for imposing sentence in a criminal case. When the 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 [Section] 3553(a)." United States v. Davis, 08-CR-332, 2010 WL 1221709, at *1 (E.D.N.Y. Mar. 29, 2010) (Weinstein, J.) (internal quotation marks and citation omitted). 18 U.S.C. § 3553(a) provides a list of reasons for the Court to consider in choosing what sentence to impose on a criminal defendant.

The Court addresses each of the 18 U.S.C. § 3553(a) factors in turn.

1. The Nature and Circumstances of the Offense and the History and Characteristics of the Defendant

The first 18 U.S.C. § 3553(a) factor requires the Court to evaluate "the nature and circumstances of the offense and the history and characteristics of the [D]efendant." 18 U.S.C. § 3553(a)(1). Based on these factors, a significant sentence is justified.

a. History and Characteristics of Defendant

Defendant was born on October 9, 1980, in Brooklyn, New York. ECF No. 96 ("PSR") ¶ 46. He attended school through the eleventh grade. Id. ¶ 63. Defendant's father died two months prior to his birth, and his mother raised him on her own by working two to three jobs at a time. Id. ¶¶ 46, 49. Defendant has never been married, has no children, and is not currently in a relationship. Id. ¶¶ 51. He reported to Pretrial Services that he smokes five cigars filled with marijuana per day. Id. ¶ 58.

Defendant's criminal record shows a history of drug crimes escalating in severity. On August 23, 2000, Defendant was arrested for selling an unspecified quantity of heroin to an undercover police officer and charged with Attempted Criminal Sale of a Controlled Substance in the Third Degree, a class C felony. Id. ¶ 34. He was sentenced in New York State Supreme Court to one day of custody and five years of probation. Id.

While on probation for this offense, Defendant committed two additional drug crimes. First, he was arrested for selling heroin to an undercover police officer on May 9, 2001, and, once again, was charged with Attempted Criminal Sale of a Controlled Substance in the Third Degree. Id. ¶ 35. Defendant was sentenced in New York State Supreme Court to three to six years of incarceration on October 13, 2004. Id. Second, Defendant was arrested for possession of an unspecified quantity of heroin on August 26, 2004, and was charged with Criminal Possession of a Controlled Substance in the Seventh Degree, a class A misdemeanor. Id. ¶ 36. He was sentenced to ninety days of custody in Brooklyn Criminal Court on October 13, 2004. Id.

Defendant served a total of nine months in prison and was paroled on July 7, 2005. Id. ¶ 35. Eight months later, he was arrested for selling cocaine to an undercover police officer and charged with Criminal Sale of a Controlled Substance in the Fifth Degree, a class D felony. Id. ¶ 27. On November 27, 2006, Defendant was sentenced to eighteen months of custody and one year of supervised release in New York State Supreme Court. Id. He served seven months in prison and was paroled again on August 2, 2007. Id.

On February 27, 2009, Defendant was arrested for possessing 1,500 glassine bags containing heroin and charged with Criminal Possession of a Controlled Substance in the Third Degree, a class B felony. Id. ¶ 38. The New York State Supreme Court sentenced Defendant on July 29, 2009 to two years of incarceration and three years of post-release supervision. Id. Defendant served one year of his sentence and was paroled on August 9, 2010. Id. He was arrested for the instant offense on May 9, 2013. Id. ¶ 13.

Defendant has also been arrested twice without conviction. On January 6, 2009, Defendant was arrested and charged with Criminal Possession of Marijuana, Unlawful Possession of Marijuana, and Failure to Wear a Seatbelt. Id. ¶ 43. On February 1, 2012, Defendant was arrested by the Drug Enforcement Agency ("D.E.A.") and charged with Sale of Heroin. Id. ¶ 44. According to the Presentence Investigative Report filed in this case, the ultimate disposition of these two arrests remains unknown. Id. ¶¶ 43-4.

b. Nature and Circumstances of the Offense

Defendant's instant offense is even more egregious and serious than his previous crimes for selling and possessing illegal drugs. Id. ¶ 6. Here, defendant was convicted of orchestrating a conspiracy to steal drugs by armed robbery, recruiting co-defendants Augustin Tanco and Joshua Ortiz Rolon for assistance. Id. ¶ 12. Between January and May of 2013, Defendant engaged in price negotiations with a D.E.A. informant for the purchase of one to ten kilograms of heroin and ten kilograms of cocaine. Id. ¶¶ 6-11. On May 9, 2013, Defendant and the informant reached an agreement in which Defendant would purchase two kilograms of heroin at a price of $58,000.00 per kilogram, and ten kilograms of cocaine at a price of $34,000.00 per kilogram. Id. ¶ 11. Defendant drove to a restaurant in Valley Stream, New York with Tanco and Ortiz Rolon, where the three conspirators intended to rob the D.E.A. informant of his purported narcotics. Id. ¶ 12. Defendant and his co-conspirators were arrested before they could commit the robbery, and officers recovered a loaded .380 caliber Lorcin handgun from Ortiz Rolon. Id. In a post-arrest statement, Tanco told the D.E.A. that he was present at the restaurant to provide protection to Defendant in connection with the drug transaction, and that Defendant had informed him of his intent to rob the D.E.A. informant. Id. ¶ 17.

Following Defendant's guilty plea, Defendant met with the government on one occasion in an effort to provide investigative leads concerning ongoing criminal activity. ECF No. 128 ("Gov't Mem.") at 4. Defendant offered to assist the D.E.A. by identifying potential targets, but the D.E.A. ultimately declined to pursue his information. Id. Because of Defendant's efforts, the Government submitted a request for a one-level "global" reduction to his sentencing guidelines range. Id.

2. The Need for the Sentence Imposed

The second 18 U.S.C. § 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 will address each subsection in turn.

a. Reflecting the Seriousness of the Offense, Promoting Respect for the Law, and Providing Just Punishment

The Court finds that a significant sentence is necessary to accomplish the purposes of reflecting the seriousness of the offense, promoting respect for the law, and providing just punishment. See 18 U.S.C. § 3553(a)(2)(A).

Defendant planned and coordinated a conspiracy to steal a large volume of illegal drugs worth hundreds of thousands of dollars. In furtherance of this goal, he conscripted Tanco and Ortiz Rolon for protection and support. Defendant was aware that Ortiz Rolon possessed a loaded handgun that could be used for violent purposes if the situation escalated. Moreover, Defendant planned for the robbery to take place at a public restaurant in Queens, New York. Defendant's conduct placed innocent lives in danger, and his sentence will satisfy the goal of the Hobbs Act to "use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery, or physical violence." Stirone v. United States, 361 U.S. 212, 215 (1960).

b. Affording Adequate Deterrence to Criminal Conduct

"Under section 3553(a)(2)(B), there are two major considerations: specific and general deterrence." Davis, 2010 WL 1221709, at *2. The Court finds that a significant sentence of incarceration is also necessary to afford adequate deterrence, both specific and general, to criminal conduct. See 18 U.S.C. § 3553(a)(2)(B).

Regarding specific deterrence, Defendant is a career offender who has continued to engage in criminal conduct after being paroled on prior offenses. Defendant's persistent criminality after multiple convictions indicates that a lengthy period of incapacitation is required to deter him from continuing this trend. See United States v. Park, 758 F.3d 193, 201 (2d Cir. 2014) (noting particular need for incapacitation and specific deterrence given defendant's continued criminal activity after prior convictions). Regarding general deterrence, the Court finds that a significant sentence will discourage future criminals from conspiring to commit armed robberies, reducing the likelihood that such crimes occur.

c. Protecting the Public from Further Crimes of the Defendant

As noted above, Defendant is a career criminal whose offenses have escalated from the sale and possession of small quantities of illegal narcotics to the distribution of much larger quantities of drugs and attempted robbery. The only way to protect the public from Defendant's continued pursuit of criminal activity is to incarcerate defendant for a significant period of time.

d. Providing Defendant with Needed Educational or Vocational Training, Medical Care, or Other Correctional Treatment in the Most Effective Manner

Defendant does not require additional educational or vocational training, medical care, or other correctional treatment. Accordingly, this factor is not relevant.

3. The Kinds of Sentences Available

The third 18 U.S.C. § 3553(a) factor requires the Court to discuss "the kinds of sentences available" for Defendant. 18 U.S.C. § 3553(a)(3).

Defendant pled guilty to Hobbs Act Robbery Conspiracy under 18 U.S.C. § 1951(a). See Guilty Plea at 1. This count carries a maximum imprisonment term of twenty years, 18 U.S.C. § 1951(a), and a maximum supervised release period of three years, 18 U.S.C. § 3583(b)(2). This Count also carries a maximum fine of $250,000.00, 18 U.S.C. § 3571(b), and a mandatory special assessment of $100.00, 18 U.S.C. § 3013. Restitution is not applicable. 18 U.S.C. § 3663. Accordingly, the Court's sentence falls within the kinds of sentences available to Defendant for Count One.

Defendant also pled guilty to Unlawful Use of a Firearm under 18 U.S.C. § 924(c)(1)(A)(i). See Guilty Plea at 1. This count carries a mandatory five-year term of imprisonment, to run consecutively to any other imposed term of imprisonment, 18 U.S.C. § 924(c)(1)(A)(i), and a maximum supervised release period of five years, 18 U.S.C. § 3583(b)(2). This count renders Defendant ineligible for any term of probation. 18 U.S.C. § 3561(a)(3). Defendant faces a maximum fine of $250,000.00, 18 U.S.C. § 3571(b), as well as another mandatory special assessment of $100.00, 18 U.S.C. § 3013. Accordingly, the Court's sentence falls within the kinds of sentences available to Defendant for Count Four.

4. The Kinds of Sentence and the Sentencing Range Established For Defendant's Offenses

The fourth 18 U.S.C. § 3553(a) factor requires the Court to detail "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).

Guideline 2X1.1(a) provides that the base offense level for conspiracy be derived "from the guideline for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty." U.S. Sentencing Guidelines Manual § 2X1.1(a) (U.S. Sentencing Comm'n 2015) ("U.S.S.G."). Accordingly, Defendant has a base offense level of twenty pursuant to Guideline 2B3.1, which governs robbery convictions. Id. § 2B3.1. Two offense levels are added because Defendant was an organizer of the robbery conspiracy scheme. Id. § 3B1.1(c). An additional one-level enhancement is warranted because the taking of a controlled substance was the object of the offense. Id. § 2B3.1(b)(6). This brings Defendant's adjusted offense level to twenty-three. See PSR ¶ 28.

Defendant was over the age of eighteen when he committed this crime, and he has at least two prior convictions for controlled substance offenses. Id. ¶ 29. As such, he fits the criteria of a "career offender" under the Sentencing Guidelines, and his criminal history category is VI. U.S.S.G. § 4B1.1. The adjusted offense level from the "career offender" table—thirty-two—is greater than the adjusted offense level from standard guideline calculations. Id. § 4B1.1(b). Thus, the adjusted offense level from the career offender table is used. Id.

Because Defendant clearly demonstrated acceptance of responsibility for the offense and pled guilty in a timely manner, a decrease of three offense levels is permitted by the guidelines. Id. §§ 3E1.1(a), 3E1.1(b). The Government also moved this Court for a one-level "global" reduction pursuant to U.S.S.G. 5K2.0(a)(2). Gov't Mem. at 3.

Taking all adjustments into account, Defendant's offense level is twenty-eight. Id. With a criminal history category of VI, Defendant's guidelines sentencing range for Count One would be one hundred and forty to one hundred and seventy-five months. See U.S. Sentencing Guidelines Manual Sentencing Table (U.S. Sentencing Comm'n 2015). However, since Defendant was also convicted on Count Four, his combined guidelines sentencing range is the greater of: (1) the mandatory minimum sentence under 18 U.S.C. § 924(c) plus the range for the underlying offense, two hundred months to two hundred and thirty-five months, or (2) the range derived from the career offender table for 18 U.S.C. § 924(c) offenders, two hundred and sixty-two months to three hundred and twenty-seven months. U.S.S.G. §§ 4B1.1(c)(2); 4B1.1(c)(3). The range derived from the career offender table is greater, and therefore Defendant's guideline imprisonment range is two hundred and sixty-two months to three hundred and twenty-seven months. Because of the Government's request for a one-level "global" reduction under U.S.S.G. § 5K2.0(a)(2), however, the Defendant's guideline range is reduced to two-hundred and thirty-five months to two-hundred and ninety-three months. Gov't Mem. at 3.

Defendant is eligible for a supervised release term of one to three years for Count One, and two to five years for Count Four. Id. §§ 5D1.1(a); 5D1.2(a). The guidelines suggest a fine of $25,000.00 to $250,000.00 per count. Id. § 5E1.2(c)(3). The Court must consider costs of prosecution in determining whether to impose a fine. See id. § 5E1.5; PSR ¶ 83.

5. Pertinent Policy Statement(s) of the Sentencing Commission

The fifth 18 U.S.C. § 3553(a) factor requires the Court to evaluate "any pertinent policy statement [] issued by the Sentencing Commission[.]" 18 U.S.C. § 3553(a)(5). There are no policy statements pertinent to this case, and this factor is not relevant.

6. The Need to Avoid Unwarranted Sentence Disparities

The sixth 18 U.S.C. § 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).

Defendant pled guilty to Hobbs Act Robbery Conspiracy, which carries a maximum imprisonment term of twenty years of incarceration, and Unlawful Use of a Firearm, which carries a minimum additional term of five years of incarceration and a maximum additional term of life imprisonment. See Guilty Plea at 1; 18 U.S.C. §§ 1951(a); 924(c). Accordingly, a sentence of twenty-five years of imprisonment or more is not beyond the pale for Defendant's crime, and avoids disparities with other federal sentences which recognize the severity of such a crime.

In addition, "[t]he New York state statute, while not directly applicable, provides a useful indication of how this crime would be treated" under state law. United States v. Ferranti, 928 F. Supp. 206, 214 (E.D.N.Y. 1996) (Weinstein, J.). The New York state analog to Count One is Conspiracy in the Fourth Degree, which carries a sentence of one to four years of imprisonment. See New York Penal Law §§ 105.10, 70.00(2)(e). Because Defendant would be categorized as a "persistent felony offender" under New York Penal Law § 70.10 due to his extensive criminal history, however, it would be within a court's discretion to subject him to an alternative sentence of fifteen years to life imprisonment. See id. §§ 70.10(2), 70.00(3)(a)(i). The New York state analog to Count Four is Criminal Possession of a Weapon in the Second Degree, which carries a sentence of one to fifteen years of imprisonment. See id. §§ 265.03(3); 70.00(2)(c). The "persistent felony offender" statute would apply to Count Four as well, allowing an additional alternative sentence of fifteen years to life imprisonment. See id. §§ 70.10(2), 70.00(3)(a)(i). A substantial prison sentence for Defendant therefore would not create a disparity with New York State sentences for similar defendants.

7. The Need to Provide Restitution

Lastly, the seventh 18 U.S.C. § 3553(a) factor requires the Court to touch upon "the need to provide restitution to any victims of the offense." 18 U.S.C. § 3553(a)(7). Restitution is not applicable in Defendant's case. See 18 U.S.C. § 3663. Accordingly, this factor is not relevant.

A sentence of two hundred and forty-eight (248) months of incarceration, to be followed by five (5) years of supervised release, and the $200.00 mandatory assessment fee, is sufficient but no greater than necessary to accomplish the purposes of 18 U.S.C. § 3553(a)(2).

The Court expressly adopts the factual findings of the Presentence Investigation Report, with the exception of Defendant's guidelines calculation, which the Court adopts from the Government's sentencing memorandum. The Court imposes the special conditions of release proposed by the Probation Department.

SO ORDERED.

s/WFK

HON. WILLIAM F. KUNTZ, II

UNITED STATES DISTRICT JUDGE Dated: May 20, 2016

Brooklyn, New York