Case 3:09-cr-00251-WWE Document 165 Filed 08/04/10 Page 1 of 12

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA : Criminal No. 3:09 CR 251 (AVC)

:
v. :
:
ROBERTO CALO, also known as : August 4, 2010
“PAPITO” :

GOVERNMENT’S MEMORANDUM IN AID OF SENTENCING

In 2009, the Drug Enforcement Administration (“DEA”) conducted an investigation into

heroin trafficking in the Great New Haven area. The DEA’s investigation revealed that the

defendant, Robert Calo, was a member of a heroin trafficking organization headed by Moises

Valentin-Candelaria. More specifically, the investigation revealed that Calo, for at least a period

of time, allowed Candelaria to store heroin and heroin packaging materials at his home, and, on

occasion, himself distributed heroin for the organization. Calo participated in, or was referenced

in, numerous telephone conversations that were intercepted pursuant to court-authorized wiretaps

during this case. These calls bore out the foregoing conclusion regarding his role in the charged

conspiracy. The Government submits this memorandum as an aid to the Court in fashioning an

appropriate sentence.

I. Pertinent Background

In or about the summer of 2009, the DEA initiated an investigation of Moises Valentin-

Candelaria, who was believed to head a heroin trafficking operation in and around New Haven,

Connecticut. The investigation employed various traditional, investigative techniques, including

the use of pen registers, cooperating sources, controlled purchases of heroin, seizures of heroin,

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physical surveillance of targets of the investigation, and the installation and use of court-

authorized wiretaps on cellular telephones known to be utilized by Candelaria and his co-

conspirators.

Intercepted calls, coupled with surveillance and other investigative information,

confirmed that Candelaria and his associates were involved in the distribution of substantial

quantities of heroin. The investigation revealed that Candelaria regularly obtained bulk

quantities of heroin, principally from two New York sources-of-supply. Candelaria processed

the heroin and re-distributed it to mid-level dealers in unpackaged, gram-weights, and to users in

packages commonly known as “bundles,” which are ten, single-dosage-unit bags of heroin tied or

“bundled” together.

Twelve co-conspirators were identified during the course of the investigation. All 12

were indicted on November 9, 2009, by a federal grand jury sitting in New Haven. On June 7,

2010, the defendant pleaded guilty to Count One of the Indictment charging him with conspiracy

to possess with intent to distribute a detectable amount of heroin, in violation of 21 U.S.C. §§

841(a), 841(b)(1)(C) and 846.

II. The Defendant’s Role in the Offense

The investigation revealed that the defendant was a co-conspirator who, for at least a

period of time, allowed Candelaria to store quantities of heroin at his residence and also, on

occasion, distributed heroin for Candelaria’s organization. During the wiretap phase of this

investigation, the defendant participated in, and was referenced in, numerous intercepted calls

that pertained to narcotics trafficking. What follows is a sampling which, in the estimation of the

undersigned, fairly demonstrates the defendant’s role within the organization and the quantities

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of heroin with which he was personally involved.

The conversations that follow are, in most cases, summarized as closely as possible to the

actual language used by the participants, based upon the monitors’ initial line sheets, which are

subject to revision. Calo is sometimes referred by his alias, “Papito.”Any unidentified male who

participated in the intercepted calls is indicated below using the letters UM or U/M. Unidentified

females are indicated by the letters UF or U/F. To the extent there are unintelligible portions,

those portions are labeled UI or U/I. Finally, to the extent that certain coded words or cryptic or

slang phrases can be interpreted based on agents’ training and experience to add clarity when it is

deemed necessary, those interpretations have been placed in parenthesis or are explained in the

call summary.

On August 7, 2009, in call no. 43, CANDELARIA told Robert CALO that one of

CALO’s friends had called CANDELARIA to complain about the quantity of heroin contained in

each bundle. CANDELARIA said: “Listen to this, listen to this bull shit. I called him and he

said ‘they’re too small.’ When he told me they were too small, I told him, ‘listen, buddy, that’s

not true, because I make them (i.e., the bundles of heroin) myself, and I make them pretty big.”

On August 10, 2009, in call no. 201, CANDELARIA spoke to Robert CALO about a

“sample” of heroin for customers that CALO had waiting. CALO said: “Give me something

good for them.” CANDELARIA said: “What I move, it’s the same, what, it’s good, damn.”

CALO said: “You won’t be giving me a bag. What the hell is a bag?” CANDELARIA said:

“No, I’ll be giving a whole one (i.e., a whole bundle of heroin).”

On August 11, 2009, in call no. 230, CANDELARIA asked CALO: “What’s up with the

guy (i.e., CALO’s customer to whom CANDELARIA had provided a sample of heroin). CALO

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said: “He has something ( a supply of heroin) that he is going to finish by Wednesday, and he is

going to buy 1,500 (i.e., $1,500 worth of heroin from CANDELARIA), is what he told me.”

CANDELARIA said: “Alright. Let me know.” CALO said: “Okay, at 45 (i.e., $45 per bundle),

because he is going to buy 1,500.” CANDELARIA said: “That’s fine.”

On August 12, 2009, in call no. 332, CANDELARIA told CALO that he doesn’t like to

use a stamp on the bundles of heroin he distributes. He said: “I’m not going to use that (i.e.

stamp), PAPITO, because if I use that, and if they have caught someone with things (i.e., bundles

of heroin) with a stamp, we’re fuck[ed].”

In call no. 4042, intercepted on September 23, 2009, CANDELARIA spoke to Robert

CALO. During the call, CALO informed CANDELARIA that he had three customers who

wanted a total of 15 bundles of heroin. Specifically, CALO said: “I called you that day and never

called me back. I had 15 of those (i.e., bundles of heroin) sold on Sunday and did not call me

back.” CANDELARIA said: “I was not here on Sunday.” CALO said: “But you should have

called me so I did not let people (i.e. the heroin customers) wait. CAELO called me, five (i.e. in

search of five bundles of heroin); EDWIN called me, the one from MORENA’s, five (i.e., five

bundles); and my other friend called me, five (i.e., five bundles). I had 15 (i.e., bundles of

heroin) that were sold.”

III. Sentencing After United States v. Booker

The Federal Sentencing Guidelines are no longer mandatory. United States v. Booker,

543 U.S. 220, 258 (2005). The Booker decision does not, however, reduce the Guidelines to “a

body of casual advice, to be consulted or overlooked at the whim of the sentencing judge.”

United States v. Crosby, 397 F.3d 103, 113 (2d Cir. 2005); see also United States v. Johnson, 445

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F.3d 339, 342 (4th Cir. 2006) (“By now, the Guidelines represent approximately two decades of

close attention to federal sentencing policy.”); United States v. Claiborne, 439 F.3d 479, 481 (8th

Cir. 2006) (“The Guidelines were fashioned taking the other § 3553(a) factors into account and

are the product of years of careful study.”); United States v. Cooper, 437 F.3d 324, 331 n.10 (3d

Cir. 2006) (“The federal sentencing guidelines represent the collective determination of three

governmental bodies...as to the appropriate punishments for a wide range of criminal conduct.”);

United States v. Mykytiuk, 415 F.3d 606, 607 (7th Cir. 2005) (“The Sentencing Guidelines

represent at this point eighteen years’ worth of careful consideration of the proper sentence for

federal offenses.”).

To the contrary, in the wake of Booker, the Guidelines remain an integral part of the two-

step sentencing process that district courts must now employ. See Crosby, 397 F.3d at 110-118.

Sentencing courts must first determine a defendant’s applicable Guidelines range, including

whether a departure is appropriate pursuant to the policy statements referenced in § 3553(a)(5).

Id. at 111-112. Second, sentencing courts must consider the applicable Guidelines range “along

with all of the factors listed in section 3553(a).” Id. at 112-113. These include:

(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;

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(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 [in the Sentencing

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).

District courts may impose non-Guidelines sentences,1 but they may do so only after

determining a defendant’s applicable Guidelines range in conjunction with the other factors set

out in section 3553(a). See Crosby, 397 F.3d at 115 (“[A] judge would commit a statutory

error...if the judge failed to ‘consider’ the applicable Guidelines range as well as the other factors

listed in section 3553(a), and instead simply selected what the judge deemed an appropriate

sentence without such required consideration.”). Courts electing to impose non-Guidelines

1
A non-Guidelines sentence refers to “a sentence that is neither within the applicable Guidelines range nor pursuant to
the departure authority in the Commission’s policy statements.” Crosby, 397 F.3d at 111, n.9.

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sentences must articulate the basis for such sentences; and appellate courts review non-

Guidelines sentences using a reasonableness standard. Booker, 543 U.S. at 260-261; Crosby, 397

F.3d at 114; see also 18 U.S.C. § 3553© (requiring a district court to state the reasons for the

imposition of a particular sentence).

IV. Guidelines

The defendant’s base offense level under U.S.S.G. § 2D1.1 is 24. This is based upon a

quantity attribution of at least 80 grams, but less than 100 grams of heroin. Assuming the

defendant remains eligible for the three-level reduction under U.S.S.G. § 3E1.1 for acceptance of

responsibility detailed above, the defendant’s adjusted offense level will be 21. The defendant is

a criminal history category V. A total offense level of 21, with a criminal history category of V,

results in a Guidelines range of 70 to 87 months of imprisonment (sentencing table). The

foregoing represents the parties best efforts to make an initial assessment of the defendant’s

Criminal History Category and corresponding sentencing ranges. The parties reserve the right to

recalculate both if the initial assessment proves inaccurate.

The defendant, applying the above calculations regarding offense level, is also subject to

a fine of $7,500 to $2,000,000. See U.S.S.G. § 5E1.2(c)(3)(minimum fine); 21 U.S.C. §§

841(b)(1)(B)(statutory fine); U.S.S.G. § 5E1.2(c)(4)(statute may authorize fine greater than that

set out in the Guidelines). The parties also agree that the minimum term of supervised release

provided for by the applicable Guidelines with regard to Count One is three years. See U.S.S.G.

§5D1.2(c); 21 U.S.C. §§ 841(b).

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V. Departures

The Pre-Sentence Report notes no circumstances, or combination of circumstances, that

would warrant a departure from the Guidelines, or a non-Guidelines sentence, in this case. The

Government concurs with the conclusion set forth in the PSR.

VI. Discussion of Pertinent Statutory Factors

As stated above, this Court must consider the factors listed in Section 3553(a) along with

the Guidelines and policy statements.

1. The Nature of the Offense

Possession with intent to distribute heroin is a serious drug trafficking offense. See

U.S.S.G. 5K2.20, comment (n.1). Accordingly, the sentence imposed should reflect the

seriousness of the defendant’s federal narcotics offense.

2. The Sentencing Goals

Similarly, the sentence should be significant enough to promote respect for the law,

protect the public, and carry with it an appropriate general and specific deterrent effect. In this

case, the defendant has a lengthy criminal record and has not been deterred by his previous terms

of incarceration, so a sentence within the applicable Guidelines range is appropriate. As to the

need to provide the defendant with education, medical care, and correctional treatment in the

most effective way, the Government expresses no opinion.

3. The Kinds of Sentences Available

Probation is available because the defendant has been convicted of a Class C felony. See

18 U.S.C. § 3561(a)(1); U.S.S.G. § 5B1.1(b)(1). But a term of probation is not authorized under

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the Guidelines because the minium term of imprisonment recommended exceeds eight months.

The statutory maximum sentence is 20 years of imprisonment.

4. The Need to Avoid Unwarranted Disparities Among Defendants with Similar

Records who Have Been Found Guilty of Similar Conduct

The Guidelines exist for the precise purpose of reducing unwarranted disparities. See

United States v. Arjoon, 964 F.2d 167, 170 (2d Cir. 1992) (“One of the principal purposes of the

Sentencing Commission was to establish policies and practices that avoided unwarranted

sentencing disparities....”); United States v. Joyner, 924 F.2d 454, 460 (2d Cir. 1991) (“[A]n

applicable guideline range may seem harsh..., but it is the same range applicable throughout the

country for all offenders with the same combination of offense conduct and prior record.”). This

factor, therefore, supports giving greater weight to the applicable Guidelines range; it is not a

reason to depart from them.

VII. Conclusion

For the reasons set forth herein, the Court should impose a Guidelines sentence that takes

account of the need to deter the defendant and protect the public and which is consistent with the

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seriousness of the defendant’s offense.

Respectfully submitted,

DAVID B. FEIN
UNITED STATES ATTORNEY

/s/ PATRICK F. CARUSO

ASSISTANT U.S. ATTORNEY
Federal Bar No. CT17984
157 Church Street, 23rd Floor
New Haven, CT 06510
Tel.: (203) 821-3700
Fax: (203) 773-5391
Patrick.Caruso@usdoj.gov

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CERTIFICATE OF SERVICE

I hereby certify that on August 4, 2010, a copy of the foregoing Government’s

Memorandum in Aid of Sentencing, was filed electronically and served by mail on anyone unable

to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of

the court’s electronic filing system or by mail to anyone unable to accept electronic filing as

indicated on the Notice of Electronic Filing. Parties may access this filing through the court’s

CM/ECF System.

/s/ PATRICK F. CARUSO

ASSISTANT U.S. ATTORNEY
Federal Bar No. CT17984
157 Church Street, 23rd Floor
New Haven, CT 06510
Tel.: (203) 821-3700
Fax: (203) 773-5391
Patrick.Caruso@usdoj.gov

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