United States v. Lynch

ROBERT W. SWEET

SENTENCING OPINION Sweet, D.J.

On November 5, Levy Lynch ("Lynch" or "Defendant") pled guilty in Magistrate's Court to misdemeanor possession of a controlled substance in violation of 21 U.S.C. § 844(a).

For the reasons set forth below, Lynch will be sentenced to time served. Prior Proceedings

Lynch was originally charged with conspiring to distribute crack and conspiring to distribute crack within 1000 feet of a housing facility in violation of 21 U.S.C. § 841(b)(1)(C) and § 860. Lynch was arraigned on May 1, 2012, and subsequently detained for 205 days. Following his release, Lynch was rearrested on state charges and served an addition 32 days before again being released by this Court. Lynch's sentencing is currently scheduled for November 19, 2013. 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 Advisory Guidelines. 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. The Offense Conduct

Lynch began cooperating with the government through a non-prosecution agreement following his arrest and detention in May 2012. On September 20, 2012, the government agreed to Lynch's release after 205 days. Following his release, Lynch was rearrested on state charges and served an addition 32 days before again being released by this Court.

Given Lynch's re-arrest, the United States attorney's Office determined that a non-prosecution agreement would not be granted but agreed to permit Lynch to plead guilty to a misdemeanor given the facts of the instant offense. Lynch was on his way to buy crack cocaine for his own use when an undercover police officer asked Lynch if he knew where the undercover could buy crack. Lynch took the officer along with him to the location where Lynch intended to make his purchase. Lynch did not work with the seller or have any ongoing relationship with the seller. Lynch did not solicit customers for the seller or "steer" customers to him, or share in the profits of the seller's drug business. The Relevant Statutory Provisions and the Guidelines

The maximum term of imprisonment on Lynch's misdemeanor is one year. The guidelines range stipulated in the plea agreement is 10-12 months. Lynch has already served approximately eight months. Section 5K1.1 Factors

Section 5K1.1 of the Sentencing Guidelines sets forth five non-exclusive factors that sentencing courts are encouraged to consider in determining the appropriate sentencing reduction for a defendant who has rendered substantial assistance: (1) "significance and usefulness" of assistance (§5K1.1(a) (1)); (2) "truthfulness, completeness, and reliability" of information and testimony (§5K1.1(a)(2)); (3) "nature and extent" of assistance (§5K1.1(a) (3)); (4) "any injury suffered, or any danger or risk of injury to the defendant or his family" resulting from assistance (§5K1.1(a)(4)); and (5) "timeliness" of assistance (§5Kl.l(a)(5)).

The Defendant in this case has rendered substantial assistance to the government, including extensive proffers as to his past criminal conduct. Given this cooperation, both parties concur that a pre-sentence report is not necessary, and that Lynch should not be sentenced to serve any additional jail time. The Sentence

For the instant offense, Defendant Lynch will be sentenced to time served.

The terms of this sentence are subject to modification at the sentencing hearing scheduled for November 12, 2013.

It is so ordered. New York, NY
November 7, 2013

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ROBERT W. SWEET

U.S.D.J.