Free Reply/Response Misc - District Court of Connecticut - Connecticut

Case 3:02-cr-00004-AWT

Document 165

Filed 07/22/2005

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA v. LUIS SANTIAGO

: : : : :

Case No.

3:02cr4(AWT)

July 21, 2005

GOVERNMENT'S REPLY TO THE DEFENDANT'S CROSBY BRIEF On July 15, 2005, the defendant filed a brief requesting that the court impose a new sentence in light of the holding of the United States Supreme Court in United States v. Booker, 125 S. Ct. 738 (2005). The Government believes that the factors

cited by the defendant do not support the imposition of a nontrivially different sentence and requests that the Court affirm the original sentence imposed in this case. I. Procedural History

On April 10, 2002, the defendant pleaded guilty to conspiring to distribute 500 grams of cocaine in violation of 21 U.S.C. 846, 841(a)(1) and 841(b)(1)(B). On May 27, 2003, this On On

Court sentenced the defendant to108 months of incarceration. May 28, 2003, the defendant filed a timely notice of appeal.

December 13, 2004, the Court issued an amended judgement in this case. On March 2, 2005, the United States Court of Appeals for

the Second Circuit ordered a limited remand in this case in light of the Supreme Court's decision in United States v. Booker, 125 S. Ct. 738 (2005), and the Court of Appeals' decision in United

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States v. Crosby, No. 03-1675 (2d Cir. Feb. 2, 2005).

On April

13, 2005, the Court ordered that the parties file briefs on this issue. The defendant filed his brief or about July 15, 2005. II. Limited Remands in Light of Booker and Crosby

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. sentence will be subject to appellate review for "reasonableness." Id. at *24. The

The 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 2

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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, No. 03-1675, slip op. at 24-25 (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. at 25. 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. III. Discussion

The Government agrees that the Court should consider all of the factors cited by the defendant, but believes that such consideration should not result in the imposition of a different sentence. The defendant argues that consideration of his family

ties, military service, drug addiction, and agreement not to 3

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oppose forfeiture proceedings should result in a reduced sentence. First, it is apparent that all of these facts are

contained in the PSR and were considered by the Court at the time of the imposition of the original sentence. Instead of departing

downward, in light of the fact that the defendant shot another individual, the Court exercised its discretion and departed upward. After considering the facts as presented in the PSR,

which are reasserted in the defendant's present argument, the Court sentenced the defendant at the bottom of the applicable range. Second, the facts presented by the defendant do not warrant a different sentence because they do not distinguish this defendant from others. Section 3553(a) specifically indicates

that a sentence should reflect the need to avoid unwarranted sentence disparities among the defendants with similar records who have been found guilty of similar conduct. The facts cited

by the defendant in his brief do not appear to distinguish him in any meaningful way from other defendants. For example, his

agreement not to oppose forfeiture proceedings is a common feature of plea agreements in federal narcotics cases. While the

defendant indicated that he was addicted to cocaine, the court addressed that issue by recommending the 500 hour drug treatment program. Successful completion of this program will reduce the Further, the defendant's

time the defendant serves in prison.

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declared intent to "educate himself while incarcerated and make himself a better person . . ." is not a reason to impose a reduced sentence. Defendant's brief at 7. In sum, the defendant

was a drug dealer who resorted to violence to protect his reputation. A sentence of 108 months was - - and is - -

appropriate in this case. IV. Conclusion

For the reasons stated above, the Government respectfully requests that the Court reaffirm the sentence previously imposed in this case.

Respectfully submitted, KEVIN J. O'CONNOR UNITED STATES ATTORNEY /s/ RAYMOND F. MILLER ASSISTANT U.S. ATTORNEY Federal Bar No. CT20451 157 Church Street, 23rd Floor New Haven, CT 06510 Tel.: (203) 821-3700 Fax: (203) 773-5376

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CERTIFICATE OF SERVICE I hereby certify that on this 21st day of July, 2005, a true and correct copy of the foregoing Motion was mailed by firstclass mail to: Charles Willson, Esq Nevins and Nevins 102 Connecticut Blvd PO Box 280658 East Hartford, CT 06128 ___________/s/_____________________ Raymond F. Miller Assistant U.S. Attorney

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