U.S. v. Ortiz, 1179

Citation742 F.2d 712
Decision Date03 December 1984
Docket NumberNo. 1179,D,1179
Parties16 Fed. R. Evid. Serv. 452 UNITED STATES of America, Appellee, v. Alex ORTIZ, Appellant. ocket 84-1040.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Sylvia Peck, New York City (The Legal Aid Society Federal Defender Services Unit, New York City, of counsel), for appellant.

Aaron R. Marcu, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Paul L. Shechtman, Asst. U.S. Atty., New York City, of counsel), for appellee.

Before OAKES, VAN GRAAFEILAND, Circuit Judges, and BONSAL, District Judge. *

OAKES, Circuit Judge:

Alex Ortiz appeals from his sentence of ten years' imprisonment and ten years of special parole after pleading guilty to distribution of heroin and possession of heroin with intent to distribute, 21 U.S.C. Sec. 841(a) (1982), before the United States District Court for the Southern District of New York, Thomas P. Griesa, Judge. Ortiz, an eighteen-year-old addict and "street" pusher, argues that the imposition of this sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment, because it is disproportionate to the crime under the standard announced in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). The Government responds directly to the disproportionality argument, but fails to provide us with much supporting sentencing data. Instead, it includes in its brief a copy of its Brandeis-brief-like 1 presentence memorandum for Ortiz, which cites Sunday newspaper magazine articles and outlines the rationale for the Government's current enforcement policies: there is a large distribution system of brand-name heroin and cocaine on the Lower East Side of New York City; the drug dealing has had a horrendous and cancerous effect on the community; and thus there is a need for a "vigorous Federal response to drug dealing on the Lower East Side." While we do not take judicial notice of these "facts," see Fed.R.Evid. 201, which might be relevant to the exercise of discretion to prosecute but have little or no bearing on whether the sentence violates the Eighth Amendment, we do affirm on the basis of our own analysis of proportionality.

Ortiz, an addict and himself a victim as well as a perpetrator of the narcotics traffic, pleaded guilty to selling an undercover agent six glassine envelopes of heroin in a "street sale." The price was $60. Ortiz sold six "bags" of a brand of heroin called "Express Only," which he had obtained from a nearby supplier, to one agent, and he told another agent that, while there was some "Night Train"--another brand name--in the area, "Express Only" 2 was the better product. He allegedly sold four "bags" to the second officer for $40. While he was indicted for the latter sale, the charge was dismissed as part of his guilty plea.

Ortiz's criminal record reflects how a metropolitan criminal justice system works. 3 He had been arrested in September, 1981, for possession of forty glassine envelopes of heroin, but for reasons that do not appear in this record the case was dismissed. He also was arrested in November, 1983--after his arrest and indictment and some two weeks before his plea of guilty in the instant case--but he pleaded guilty only to loitering. The charges of possession and use of heroin were dismissed. His sentence was a conditional discharge.

In sentencing Ortiz, Judge Griesa declined, in light of Ortiz's record of drug dealing, to apply the Youth Corrections Act, 18 U.S.C. Sec. 5010(b), (c) (1982), an action that Ortiz has not challenged. It is plain that at sentencing the Government sought to make Ortiz an example in its "crackdown" on the Lower East Side drug traffic, again a matter of discretion not before us.

We address only whether Ortiz's sentence is so disproportionate that it violates the Eighth Amendment prohibition against cruel and unusual punishment. In Solem v. Helm, the Supreme Court held that the Eighth Amendment requires that "a criminal sentence must be proportionate to the crime for which the defendant has been convicted." 463 U.S. at ----, 103 S.Ct. at 3009. The Court stated that "objective criteria" are to be used to assess proportionality, "including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for the same crime in other jurisdictions." Id. Nevertheless, according to the Supreme Court, "[i]n view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate." Id. at ---- n. 16, 103 S.Ct. at 3009 n. 16; accord Hutto v. Davis, 454 U.S. 370, 374, 102 S.Ct. 703, 705, 70 L.Ed.2d 556 (1982); see also Rummel v. Estelle, 445 U.S. 263, 274, 100 S.Ct. 1133, 1139, 63 L.Ed.2d 382 (1980).

Ortiz argues first that the quantity of drugs he sold, his addiction, and the nonviolent nature of his actions discount the gravity of the offense. While the Solem Court did note the significance of these factors, Ortiz mischaracterizes their application in this case. 4 Although he was not a wholesale dealer, the record suggests that he participated in an extensive and well-supplied narcotics operation. Ortiz was a retailer with what seemed like access to a large inventory. Nor does Ortiz's status as an addict vitiate the gravity of his offense. While an addict--to the tune of five or six "bags" or $50-$60 worth of heroin per day--and hence a victim of the narcotics epidemic, he is also a longtime street peddler, as witnessed by his prior and post-indictment arrest record, see supra note 3, and by his "pushing" to the undercover "customers" a brand name heroin. Finally, Ortiz's claims about the nonviolent nature of his actions flies in the face of effects that heroin has on its users; drug dealing cannot be said to be as nonviolent as writing a bad check. See Solem v. Helm, supra. Even ignoring the violence typically associated with narcotics operations, see, e.g., United States v. Wiener, 534 F.2d 15, 18 (2d Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 66, 50 L.Ed.2d 80 (1976), heroin dealing can readily lead to violence, theft, robbery, or the like on the part of a buyer to support his habit.

In conjunction with assessing the gravity of the offense, Solem v. Helm requires us to look to the harshness of the penalty. Ortiz's ten-year sentence is five years less than the statutory maximum. 21 U.S.C. Sec. 841(b)(1)(A) (1982). Moreover, Ortiz is statutorily eligible for parole after serving one-third of his term, three and one-third years. 18 U.S.C. Sec. 4205(a) (1982); 28 C.F.R. Sec. 2.2(a) (1983). The parole release guidelines, which require careful attention by the Parole Commission, Lieberman v. Gunnell, 726 F.2d 75, 77 (2d Cir.1984) ("Under 18 U.S.C. Sec. 4206(c) (1982), the Commission may not go outside of its own Guidelines unless there is good cause for doing so which it states with particularity."), call for his release after serving eighteen to twenty-four months of his sentence. 28 C.F.R. Sec. 2.20 (1983) (category 3 offense (severity index 901(h)); parole prognosis "fair"). That we are entitled to take parole expectations into account appears undeniable. Solem v. Helm, 463 U.S. at ----, 103 S.Ct. at 3013; Moreno v. Estelle, 717 F.2d 171, 180 (5th Cir.1983); Carmona v. Ward, 576 F.2d 405, 413-14 (2d Cir.1978), cert. denied, 439 U.S. 1091, 99 S.Ct. 874, 59 L.Ed.2d 58 (1979). Comparing the sentence given in the light of parole expectations to the gravity of the offense, we are not by any means persuaded that the sentence was unconstitutionally severe.

As for the second criterion for proportionality--"the sentence imposed on other criminals in the same jurisdiction"--we look to federal sentences for similar crimes, as well as sentences for other crimes. Ortiz tells us that in the Southern District, for the 188 defendants convicted of narcotics offenses (excluding those involving marijuana) in the 12-month period ending June 30, 1982, 20 received prison terms of less than 1 year, 55 (the tables actually show 75) received prison terms of less than 5 years, 19 received split sentences, and 51 (the tables show 55) received terms of probation. Thus, only 39, or 20%, of the defendants received prison sentences of over 5 years. 5 Street-level narcotics trafficking on the Lower East Side between December 1, 1983, and February 21, 1984, excluding that of Ortiz, has brought the following sentences:

The Government counters, however, with its examples of "Lower East Side sentences":

[O]ne defendant has received a 15-year sentence, see United States v. Hernandez, S 83 Cr. 559 ...; four defendants, including Ortiz, have received 10-year sentences, see United States v. Lopez, 83 Cr. 559 ..., United States v. Zambrana, S 83 Cr. 717 ..., United States v. Nunez, 84 Cr. 76 ...; one defendant has received an eight-year sentence, United States v. Roberts, 83 Cr. 632 ...; and three defendants have received six-year terms, United States v. Ortiz, 83 Cr. 562 ..., United States v. Rosario, 83 Cr. 555 ..., United States v. Perez, S 83 Cr. 647.

We find these statistics and counter-statistics rather unhelpful since, irrespective of the locale of the crime, it would seem that similar crimes in the same city committed by individuals with similar records and backgrounds should be somewhat similarly punished; to isolate the statistics to a particular geographic area within the city permits many errors depending on perceptions. What of the Upper West Side, Harlem, SoHo, Murray Hill? Be that as it may, as far as these statistics go they do not demonstrate disproportionality to the degree required by Solem v. Helm.

Although looking to the sentences imposed on persons convicted of other crimes in the same...

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