Case 3:09-cr-00085-AVC Document 658 Filed 09/08/10 Page 1 of 19

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA : Criminal No. 3:09 CR 85 (AVC)

:
v. :
:
JUAN TORRES-RIOS : September 8, 2010
:

GOVERNMENT’S MEMORANDUM IN AID OF SENTENCING

The defendant, Juan Torres-Torres Rios, a.k.a. “Cangri,” headed the drug trafficking

organization that was targeted by the Drug Enforcement Administration (“DEA”) in this case.

Numerous wiretap intercepts and information from cooperating witnesses revealed that Torres-

Rios obtained heroin and cocaine-base (“crack”) from New York suppliers, that he distributed

both drugs through a network of dealers in the Great New Haven area, and that he possessed

firearms in furtherance of his narcotics trafficking activities and provided firearms to distributors

affiliated with his organization. In the Government’s view, the defendant’s extensive narcotics

trafficking activities, and his affinity for firearms, renders him a danger to the community.

Accordingly, the Government sought to have the defendant detained at his initial appearance. An

order of detention entered at that time; and the defendant has been detained since then.

On May 27, 2010, the Government entered into a plea agreement with Torres-Rios,

pursuant to which he pled guilty to Count One of the Indictment (conspiracy to possess with

intent to distribute 100 grams or more of heroin). Under the terms of the plea agreement, Torres-

Rios agreed that the Guidelines equivalent of at least 650 grams, but less than 700 grams, of

heroin, and the Guidelines equivalent of at least 15 grams, but less than 35 grams of cocaine

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base, was reasonably foreseeable to him as a result of his participation in the conspiracy charged

in Count One of the Indictment and his relevant conduct; he acknowledged his leadership role in

the target organization; and he stipulated that he possessed a firearm during the charged

conspiracy. Accordingly, the parties determined the applicable Guidelines range to be 121 to 151

months of imprisonment. .

I. Pertinent Background

In or about the fall of 2008, the DEA initiated its investigation of Juan Torres-Rios, who

was believed to head a heroin and crack cocaine trafficking operation in New Haven,

Connecticut. The investigation employed various investigative techniques, including the use of

pen registers, cooperating sources, controlled purchases of heroin, seizures of heroin, physical

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

wiretaps on cellular telephones known to be utilized by Torres-Rios and his co-conspirators.

Intercepted calls, coupled with surveillance and other investigative information,

confirmed that Torres-Rios and his associates were involved in the distribution of substantial

quantities of heroin and crack cocaine. The investigation revealed that Torres-Rios, and his

lieutenant, Julio Santana, regularly obtained bulk quantities of pre-packaged heroin, principally

from a New York source-of-supply. Torres-Rios obtained heroin in “bundles” (i.e., ten single-

dosage-unit bags tied or “bundled” together) and “clips” (i.e. ten bundles (50 bags) of heroin sold

as a single unit). Torres-Rios distributed the heroin through a network of mid-level dealers. This

was done with the assistance of Torres-Rios’ brother, Richard Torres-Rios, and others. The

investigation also revealed that Juan Torres-Rios and his criminal associates distributed cocaine

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base.

Twenty co-conspirators were identified during the course of the investigation. All twenty

were indicted on April 8, 2009, by a federal grand jury sitting in New Haven. All have been

convicted.

II. The Defendant’s Role in the Offense

As indicated above, the investigation revealed that Juan Torres-Rios was, in fact, the

leader of the organization targeted by the DEA in this case. During the wiretap phase of the

investigation, the defendant participated in, and was referenced in, hundreds of 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

of heroin and cocaine base with which he was 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. To the extent there are unintelligible portions, those portions are labeled UI

or U/I. 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 following the call summary.

On December 1, 2008, in Call No. 491 occurring over Target Telephone Three,

TORRES-RIOS spoke to JULIO SANTANA. TORRES-RIOS said: “Where are you man?”

SANTANA said: “I brought something to the girls and I am on my way over there now. Do you

still need that?” TORRES-RIOS said: “No, to see if you can get me two bundles (i.e., two

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bundles of heroin), not balls (i.e., not eight-balls of cocaine base). Call me when you arrive.”

SANTANA said: “Two?” TORRES-RIOS said: “Yes. Two bundles.”

On December 2, 2008, in Call No. 636 over Target Telephone Three, TORRES-RIOS

spoke to JULIO SANTANA and told him to “bring down two balls of the hard (i.e., two eight-

balls of cocaine base) and white ones for the black guy. . . .” TORRES-RIOS then asked

SANTANA to wait until TORRES-RIOS could determine what his “brother-in-law,” who was

named “ Mike” would want. The Task Force subsequently determined, based upon intercepted

calls and physical surveillance, that Torres-Rios’ brother-in-law “Mike” was MICHAEL

TORRES.

Approximately 40 minutes later, on December 2, 2008, MICHAEL TORRES called

JUAN TORRES-RIOS and said: “I need something. What’s going on.” TORRES-RIOS said:

“GALLO (i.e., RICHARD TORRES-RIOS) said he is not in agreement with what you said.

MICHAEL TORRES said: “Put GALLO on.” RICHARD TORRES-RIOS came to the phone

and said: “Talk to me.” MICHAEL TORRES said: “This is MIKE. What do you mean you are

not in agreement with me?” RICHARD TORRES-RIOS said: “Aren’t you working with what is

mine?” MICHAEL TORRES said: “Yeah, but didn’t you offer me that other? You know I was

short (i.e., in debt) on the green stuff (i.e., marijuana). I made whole today of the green (i.e. paid

his debt).” The call was dropped.

Moments later, on December 2, 2008, in Call No. 655, RICHARD TORRES-RIOS again

spoke to MICHAEL TORRES. RICHARD TORRES-RIOS said: “You are falling off. You

know those over there are doing well. I gave them ten (i.e., ten eight-balls of cocaine base)

yesterday and they are asking me for ten more.” MICHAEL TORRES later said: “Give me two

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(i.e., two eight-balls of cocaine base) and you will be squared away by tomorrow,” i.e.

MICHAEL TORRES will pay for the two eight-balls of cocaine base the following day. Later in

the conversation, RICHARD TORRES-RIOS said: “Is the green (i.e., marijuana) going well for

you?” MICHAEL TORRES said: “yeah. It is going.” RICHARD TORRES-RIOS said: “I am

going to bring you the green and you are going to work for me . . . there is going to be of

everything (i.e., more drugs) in 24 hours, and I am going to put you in front with the hard one

(i.e. MICHAEL TORRES will be fronted cocaine base). Do you want it or not?” MICHAEL

TORRES said: “Let’s go.” RICHARD TORRES-RIOS said: “Okay. I will pass by there.”

MICHAEL TORRES said: “Bring me the two things I asked you for, please. Are you going to

bring me the cookies,” i.e. the two eight-balls of cocaine base. RICHARD TORRES-RIOS said:

“I am going to give you the hard ones (i.e., the two eight-balls of cocaine base) right then.”

MICHAEL TORRES said: “Okay.”

On December 2, 2008, in Call No. 657 over Target Telephone Four, TORRES-RIOS

spoke to SAMUEL ESTRADA-VAZQUEZ, also known as “SAMMY,” a distributor affiliated

with the target organization, who, at the time, was incarcerated in connection with his arrest on

state drug charges. During the call, TORRES-RIOS said, “you are my friend over everything

else,” but went on to inform ESTRADA-VAZQUEZ that there were “400 pesos unaccounted

for,” (i.e., that ESTRADA-VAZQUEZ owed TORRES-RIOS $400). ESTRADA-VAZQUEZ

disputed the debt, and indicated that JULIO SANTANA had lied to TORRES-RIOS about

ESTRADA-VAZQUEZ’s $400 debt.

On December 2, 2008, in Call No. 658 over Target Telephone Four, TORRES-RIOS

spoke to SANTANA. TORRES-RIOS told SANTANA that he had just “finished talking to

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SAMMY . . . the one that’s in jail.” TORRES-RIOS went on to inform SANTANA that

“SAMMY told me . . . he didn’t owe four hundred dollars at all, it was a lie.” A lengthy

conversation regarding the debt ensued, during which SANTANA said: “He used to owe five

complete bundles. Do you remember. How much is it?” TORRES-RIOS replied: “Five is four

hundred dollars,” (i.e., ESTRADA-VAZQUEZ was charged $80 per bundle, which was

consistent with the organization’s heroin pricing structure and ESTRADA-VAZQUEZ’s

relationship with TORRES-RIOS). SANTANA went on to say that ESTRADA-VAZQUEZ

“used to owe me five that I had written in the notebook.” SANTANA later said: “He used to

owe five bundles and he paid for six clips. So he paid me the six when he got arrested,” (i.e.,

ESTRADA-VAZQUEZ paid for six clips of heroin). SANTANA later said: “he didn’t pay the

five bundles because he was arrested.” SANTANA explained to TORRES-RIOS that he

(SANTANA) had met with ESTRADA-VAZQUEZ’s daughter about the debt: “I said to her

‘what do you see in this notebook, SAMMY five, B means balls and C are clips.’”

On December 3, 2008, in Call No. 944, TORRES-RIOS spoke to SANTANA. TORRES-

RIOS said: “Bring me 12 balls (i.e., 12 eight-balls of cocaine base) to my brother-in-law’s

house,” i.e. to the home of MICHAEL TORRES. SANTANA said: “Okay.” Moments later, in

Call No. 947, SANTANA said: “I am going to the hole (i.e., the stash house) to get the 12 (i.e.,

12 eight-balls of cocaine base), right?” TORRES-RIOS said: “Make it 13,” i.e., 13 eight-balls of

cocaine base. Moments later, in Call No. 948, TORRES-RIOS spoke to SANTANA and said:

“Listen, bring me 14,” i.e. 14 eight-balls of cocaine base.

On December 3, 2008, at approximately 11:37 p.m. (Call No. 976 on Target Telephone

Three), Michael TORRES called Juan TORRES-RIOS to report that two males had robbed

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someone “on the block.” TORRES-RIOS put a male on the phone known only as Emanuel LNU,

also known as “MANOLO” and “MANUEL” (hereafter “MANOLO”), who discussed the

mugging with Michael TORRES. MANOLO told TORRES that he (MANOLO) has a firearm;

and Michael TORRES indicated that he would respond to any threats, with MANOLO watching

his back.

On December 4, 2008 at approximately 12:26 a.m. (Call No. 983 on Target Telephone

Three), Michael TORRES again called Juan TORRES-RIOS and said: “PAPITO, I'm here on the

block and there are two guys here. Selling out here and they are not from this block. Playing it

off as if they have guns on them. We have our guns on us, too.” TORRES-RIOS asked: “On

what block?” Michael TORRES answered: “On our block, on Chapel.” TORRES-RIOS said:

“Get your guns then.” Michael TORRES responded: “We have our guns on us. I'm just letting

you know so that you can come around here every now and then.” Michael TORRES later

added: “If it comes down to it, it will go down tonight (i.e., there will be an altercation involving

the use of firearms). I'm just letting you know.” TORRES-RIOS said: “Alright. I'm working on

something right now, so if anything I will.” TORRES interrupted: “You will pass by in a little

while?” TORRES-RIOS said: “Exactly.”

On December 4, 2008, in Call No. 1170, TORRES-RIOS spoke to SANTANA and

inquired about the quantity of heroin SANTANA had remaining in his possession. TORRES-

RIOS said: “There was two loose ones left, right.” SANTANA said: “just one.” TORRES-RIOS

said: “I gave you thirty-eight.” SANTANA explained that he gave “five bundles” to everyone

except “Hartford,” i.e. LUCIANO, the Hartford-based heroin distributor affiliated with the target

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organization, who received “ten.” SANTANA further explained that “one bundle was left. I

took one of those bags for my use.”

On December 6, 2008 at approximately 8:30 p.m. (Call No. 1593 on Target Telephone

Three), Juan TORRES-RIOS spoke to a female named AURORA OTERO-RIVERA (hereafter

“AURORA,”) who, based upon numerous intercepts, is known to be a heroin distributor

affiliated with the TORRES-RIOS organization. The conversation is summarized as follows. In

Call No. 1593, AURORA asked TORRES-RIOS where she could “buy a “burner,” a common

slang term used to refer to a handgun. TORRES-RIOS, in substance, told AURORA that he

would attempt to locate a gun that he could lend to her. TORRES-RIOS also warned AURORA

that if she were to shoot someone with the gun that TORRES-RIOS intended to lend to her, she

was to inform TORRES-RIOS of this, and was to take care not to lose the gun. AURORA, in

substance, told TORRES-RIOS that she needed the gun because she had a “beef with a black

girl” who was also carrying a gun and had shown it to AURORA.

On December 7, 2008, in Call No. 1715, over Target Telephone Three, TORRES-RIOS

spoke to SANTANA. TORRES-RIOS said: “GUINEO told me that he had two bundles.”

GUINEO is the alias for JOSE COTTO, a Hispanic male, who, based upon intercepted

communications, as explained more fully herein, is a heroin distributor affiliated with the target

organization.

On December 7, 2008, in Call No. 1736, over Target Telephone Three, TORRES-RIOS

spoke to SANTANA. The two discussed a male, heroin distributor who is affiliated with the

target organization and who is known by the alias “CALVO.” During the call, SANTANA said:

“CALVO told me a sad story, that someone went into the room and stole couple of bundles and

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something else.” TORRES-RIOS said: “That’s his problem.” SANTANA said: “That’s what I

told him. ‘Call me when you have the money.’” TORRES-RIOS later said: “He better not get

stupid because I will mess him up,” i.e., CALVO better not attempt to steal from TORRES-

RIOS, because TORRES-RIOS will harm CALVO if CALVO attempts to do so.

On December 9, 2008 at approximately 4:50 p.m. (Call No. 2072 on Target Telephone

Three), TORRES-RIOS called Grace LNU, the wife or paramour of Emanuel LNU, also known

as “MANOLO” and “MANUEL.” GRACE was intercepted numerous time participating in

conversations occurring over Target Telephone Three which plainly pertained to heroin

trafficking and is known, based upon these intercepts, to be a heroin distributor affiliated with the

TORRES-RIOS organization. In Call No. 2072, GRACE complained: “MANUEL was

threatening me with the gun that you brought.” TORRES-RIOS asked: “With the gun?”

GRACE answered: “Yes.” TORRES-RIOS asked: “Why is he doing that?” GRACE said:

“Telling me that he is going to kill me.” TORRES-RIOS told GRACE: “I am going to send

someone to pick it (i.e. the gun) up now.” TORRES-RIOS then said: “Listen, how is the

business (i.e., her heroin distribution efforts).”

On December 9, 2008, in Call No. 2077 over Target Telephone Three, TORRES-RIOS

spoke to JOSE COTTO. COTTO said: “Listen, CANGRI.” TORRES-RIOS said: “Tell me.”

COTTO said: “Something happened to me. I went to the end of Greenwich. The narc went after

me again. I sold to Ronca and I came out of the alley, they went after me, but they didn’t find

nothing on me and I threw away sixteen bags (i.e., 16 single-dosage-unit bags of heroin) and I

have two bundles (i.e., two bundles of heroin), and I had to leave the car over there. I called

Julio (i.e., JULIO SANTANA) to pick up the car, but I can’t go pick up the car.”

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On December 9, 2008, in Call No. 2084, over Target Telephone Three, TORRES-RIOS

spoke to VICTOR NEIVES, also known as BORI, and JOSE COTTO. COTTO said: “Listen, I

am going to take out the two bundles that’s in the trap (i.e., a concealed compartment). Should I

give it to BORI?” TORRES-RIOS said: “Yeah. Give it to him.” COTTO said: “This one (i.e.,

BORI) went over there. They were searching the car and there were a lot of police officers, says

BORI.”

On December 13, 2008, in Call No. 3080 over Target Telephone Four, TORRES-RIOS

spoke to ROBERTO PABON, also known as “MAZDA.” During the call, PABON said he was

“ready,” (i.e., ready to be re-supplied with heroin). TORRES-RIOS indicated that business was

slow and attributed the decrease in sales to holiday “shopping.” PABON informed TORRES-

RIOS: “I sold a clip yesterday.” TORRES-RIOS indicated that not everyday would be the same.

On December 16, 2008, in Call No. 4250 over Target Telephone Three, TORRES-RIOS

spoke to VICTOR NIEVES. During the call, TORRES-RIOS expressed his concern that some of

the heroin that was being fronted to NIEVES remained unaccounted for, and that JULIO

SANTANA may have “lie[d]” to TORRES-RIOS. TORRES-RIOS told NIEVES: “ If he (i.e.,

SANTANA) arrives before I do, you are going to tell him these words: ‘He (i.e., TORRES-

RIOS) told me to square off with him the five bundles, the five balls that you gave me . . . He

told me to square them off with him (i.e., pay for the bundles that had been fronted to him). He

is coming right now to pick up that money. What are we going to do now?’ Do not get involved

with the lie, because if you do, you are going to end up without any work.”

Moments later, on December 16, 2008, in Call No. 4255 over Target Telephone Three,

TORRES-RIOS again spoke to NIEVES. NIEVES said: “He (i.e., SANTANA) gave me the

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bundle that was missing.” TORRES-RIOS said: “How? He took it out of the other one’s?”

NIEVES said: “No, I don’t know where he got it from. He gave me a whole clip (i.e., ten

bundles of heroin) and he gave me another bundle. TORRES-RIOS said: “You didn’t give him

the money, right?” NIEVES said: ‘No. I told him: ‘PITO (i.e, TORRES-RIOS) is coming to

pick up the money right now. I am going to give it to him.’ So I have the clip and the extra

bundle.” TORRES-RIOS said: “Which means you have to pay me for that bundle.” NIEVES

said: ‘Yes. I am going to pay you for it right now.” TORRES-RIOS said: “No. You have to pay

me for two bundles. Remember that.” NIEVES said: “I know, I know.” TORRES-RIOS said: “I

am going to be there in two minutes.”

On December 27, 2009, in Call No. 6568 over Target Telephone Four, TORRES-RIOS

spoke to VICTOR NIEVES, also known as “BORI.” TORRES-RIOS said: “Give me about half

an hour an hour and I will bring that (i.e., heroin) to you.” Nieves said: “Ten-four. I am

desperate for that. Everyone is driving me crazy for that,” (i.e., heroin). TORRES-RIOS said:

“How much have you sold already?” NIEVES said: “I almost sold a whole clip already,” (i.e.

NIEVES had sold nearly ten bundles of heroin, or “almost a whole clip”) .

On December 28, 2008, in Call No. 7035, TORRES-RIOS spoke to VICTOR NIEVES.

NIEVES said: “I was going to pay you the money but it became difficult for me . . . I only made a

couple hundred dollars . . . .” TORRES-RIOS said: “I understand that. Let me tell you

something. Many a times I say it is okay but although you always come to me with the same

story. You told me you didn’t have the money but I know you had nine-hundred dollars, so

screw me.” NIEVES said: “I am paying you nine-hundred dollars a clip.”

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On January 15, 2009, in Call No. 10519 occurring over Target Telephone Four,

TORRES-RIOS spoke to SANTANA. TORRES-RIOS complained that “BORI and the white

girl” owed debts to the organization. SANTANA acknowledged the problem and said: “at the

beginning their performance was good, they would sell up to two clips and pay for them right

away.”

On January 16, 2009, in Call No. 10783 over Target Telephone Three, TORRES-RIOS

spoke to NIEVES, and inquired whether NIEVES was “slinging” (i.e., selling) heroin for

someone other than TORRES-RIOS. TORRES-RIOS said: “Who is slinging with a red stamp,”

i.e. who is selling bundles of heroin that have been stamped in red ink with a brand name.

NIEVES said: “Let me ask PAPO . . . .” TORRES-RIOS said: “Because supposedly, JULIO

(i.e., SANTANA) told me that BORI (i.e., NIEVES) was slinging a red stamp.” NIEVES said:

“Red? Impossible. The only one I have is ‘White Castle,’” a brand name currently being

distributed by the target organization. TORRES-RIOS said: “The thing is he knows you are

slinging and he thinks it is a red stamp.” NIEVES said: “Oh, this one?” TORRES-RIOS said:

“Yeah, JULIO.” NIEVES said: “Oh, he is fucked.” TORRES-RIOS said: “You know. Bull shit

from time to time.” NIEVES said: “You know how it is.” TORRES-RIOS said: “Okay.”

On January 20, 2009, in Call No. 11623 occurring over Target Telephone Four,

TORRES-RIOS spoke to VICTOR NIEVES. NIEVES said: “I am finished already. JULIO (i.e.,

JULIO SANTANA) split up a clip. He gave me five (i.e., five bundles) and gave five (i.e. five

bundles) to PAPO (who, based upon other explicit intercepts is another heroin distributor

affiliated with the target organization). I don’t have to answer for PAPO. His is separate.”

TORRES-RIOS said: “Should I call JULIO?” NIEVES said: “Yes. Call JULIO and I will hand

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it (i.e., the portion of the proceeds from NIEVES’ heroin sales which is owed to TORRES-RIOS)

to him.”

On February 17, 2009, in Call No. 16,642, TORRES-RIOS spoke to Michael TORRES.

The two discussed the sale of guns and one of TORRES-RIOS’ firearms that TORRES had

displayed for a third person. TORRES-RIOS said: “What did he say about those

weapons/arms/guns?” Michael TORRES said: “He told me, it’s fine. He has not paid for them

yet. I have not shown him the other (i.e., another gun), if I show it to him he’d get crazy.”

TORRES-RIOS: “Uh-huh.” Michael TORRES: “I showed to Gari [phonetic] (i.e., TORRES

showed TORRES-RIOS’ other gun to a male identified only as Gari) and he said, ‘Damn!’ He

wanted to take pictures with it. I told him, “You are crazy. If they (i.e., the police) stopped you,

you’d go to prison.’ He says that it (i.e., TORRES-RIOS’ other gun) was really nice. Nobody

around there has that. You looked like a hitman/killer.” TORRES-RIOS said: “Uh-huh.”

Michael TORRES said: “Come out with something like that, anyone panics (i.e., TORRES-

RIOS’ other gun is powerful).” TORRES-RIOS: “What did Gari [phonetic] say? He says

‘Damn! The man (i.e., TORRES-RIOS) is tough.” Michael TORRES said: “Yes. He knows

that there is nothing to look for over here (i.e., he should fear TORRES-RIOS).”

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;
(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;

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(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

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(C) (requiring a district court to state the reasons for the

imposition of a particular sentence).

IV. Guidelines

The defendant’s adjusted offense level under U.S.S.G. § 2D1.1 is 31, taking into account

the quantity stipulation in this case, the role enhancement, the firearm enhancement and the

anticipated reduction for acceptance of responsibility. The defendant is a criminal history

category II, by the Government’s calculation and defense counsel’s calculations. A total offense

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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level of 31, coupled with a criminal history category of II, results in a Guidelines range of 121 to

151 months of imprisonment (sentencing table).

The defendant is subject to a fine range of $15,000 to $2,000,000. See U.S.S.G. §

5E1.2(c)(3)($15,000 minimum fine); 21 U.S.C. §§ 841(b)(1)(B), ($2,000,000 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 is four years. See U.S.S.G. §5D1.2(C); 21 U.S.C. §§ 841(b).

V. Departures

The Pre-Sentence Report (“PSR”) 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 cocaine base 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.

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

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

The defendant has been convicted of a Class B felony. See 18 U.S.C. § 3561(a)(1);

U.S.S.G. § 5B1.1(b)(1). The statutory maximum sentence is 40 years of imprisonment. A term

of probation is not authorized by the Guidelines. Community confinement is not available given

the defendant’s Guidelines exposure as calculated in the PSR.

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.

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VII. Conclusion

For the reasons set forth herein, there is no reason to depart from the Guidelines range of

121 to 151 months of imprisonment contained in the plea agreement. The Court should impose a

sentence that is within this Guidelines range, consistent with the seriousness of the defendant’s

offense and his leadership role in the charged conspiracy.

Respectfully submitted,

DAVID 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 September 8, 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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