U.S. v. Ortiz

• Decision Date: 14 August 2007
• Docket Number: No. 1:06-CR-417-004.,1:06-CR-417-004.
• Parties: UNITED STATES of America, Plaintiff, v. Jimmy ORTIZ, aka Javier Lopez-Diaz, aka Flaco, Defendant.
• Court: U.S. District Court — Northern District of Ohio

502 F.Supp.2d 712

UNITED STATES of America, Plaintiff, v. Jimmy ORTIZ, aka Javier Lopez-Diaz, aka Flaco, Defendant.

No. 1:06-CR-417-004.

United States District Court, N.D. Ohio, Eastern Division.

August 14, 2007.

Ronald B. Bakeman, Office of the U.S. Attorney, Northern District of Ohio, Cleveland, OH, for Plaintiff.

Albert A. Giuliani, Cleveland, OH, for Defendant.

SENTENCING MEMORANDUM

DAN AARON POLSTER, District Judge.

I. BACKGROUND

On August 29, 2006, the Government filed an indictment charging Defendant Jimmy Ortiz with two counts of conspiracy to possess with the intent to distribute heroin (Counts 1 and 4), a violation of 21 U.S.C. §§ 851, 846, 841(a)(1) and (b)(1)(B). The Government, in the same indictment, also charged Ortiz with one count of distribution of heroin (Count 3), in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(C), as well as one count of illegal re-entry (Count 7), in violation of 8 U.S.C. § 1326(b)(2). (ECF No. 9.) Ortiz requested a pre-plea Presentence Investigation Report ("PSR") on October 19, 2006, which I granted.

The United States Pretrial Services and Probation Department prepared the PSR on December 1, 2006, and revised the PSR on July 2, 2007. The Government filed a § 851 Information on October 17, 2006 providing notice that the Government sought an increase in the statutory mandatory minimum on Counts 1 and 4 from five years to ten years imprisonment, based on two prior drug trafficking felony convictions. (ECF No. 28.) The PSR identified the same two prior drug trafficking felony convictions, and therefore concluded that Ortiz qualified as a career offender under the advisory United States Sentencing Guidelines (the "Guidelines"), § 4B1.1. Ortiz did not object to the § 851 Information, and subsequently conceded the substance of the charges at the sentencing hearing. (See Sent. Hr'g Tr., 7:5-20.)

In a change of plea hearing initiated on June 20, 2007, and continued on June 21, 2007, Ortiz entered a plea of guilty to Counts 1, 3, 4 and 7 of the indictment. (See ECF Nos. 66, 68.) The plea agreement stated that the parties agreed to recommend a sentence within the range determined pursuant to the advisory Guidelines. (See Plea Agreement, ECF No. 69, 5.) In his sentencing memorandum filed before the sentencing hearing, Ortiz agreed that 262 to 327 months was the properly calculated advisory Guideline range for Ortiz as a career offender, and requested a sentence at the low end of the advisory range, 262 months. (See Def. Sent. Mem., ECF No. 74.)

On July 12, 2007, I sentenced Ortiz. I first explained the applicable statutory 120-months mandatory minimum sentence on Counts 1 and 4. Then, after I calculated the applicable advisory Guideline range, I informed both sides that I was considering a downward variance from the advisory Guideline range for career offenders, and asked if either side would like a continuance to prepare arguments accordingly. Counsel for the Government advised that he was prepared to address the possibility of a downward variance, and that no continuance was necessary despite the lack of previous notice from the Court. (See Sent. Hr'g Tr., 6-10.) Counsel subsequently acknowledged that a downward variance might be appropriate. (Id. at 9.) In response to a request from the Court, counsel for the Government then recommended a 200-month sentence (more than five years below the low end of the career offender advisory Guidelines range), a recommendation with which Ortiz's counsel concurred. (See id., 12:9-11; 13:3-5.)

After hearing from the parties, I concluded that a 262-month sentence was greater than necessary to accomplish the statutory sentencing factors enumerated in 18 U.S.C. § 3553(a). I then sentenced Ortiz to, inter alia, a period of 168 months imprisonment on Counts 1, 3, and 4, to run concurrently, as well as a period of 120 months imprisonment on Count 7 to run concurrently with the sentence for Counts 1, 3, and 4.

In this memorandum, I set forth a "thorough explanation" that "make[s] clear" the reasons for Ortiz's sentence. See United States v. Liou, 491 F.3d 334, 339 n. 4 (6th Cir.2007) ("[A] thorough explanation is the most reliable way for a district court to make clear its reasons supporting a given sentence."). See also, United States v. Wilms, 495 F.3d 277, 280 (6th Cir.2007) (explaining that "Rita exhorts the sentencing judge to satisfy the procedural requirements of `set[ting] forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority."') (citing Rita v. United States, ____ U.S. ____, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007)).

II. SENTENCING STANDARD

The Supreme Court "transformed the Sentencing Guidelines from a mandatory scheme into an advisory resource" in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Liou, 491 F.3d at 337 (quoting United States v. Richardson, 437 F.3d 550, 553 (6th Cir. 2006)). In the post-Booker world, at least in the Sixth Circuit, the district court must consider the applicable advisory Guidelines range, as well as the other factors listed in 18 U.S.C. § 3553(a). See id. at 337; United States v. Jones, 489 F.3d 243, 250-251 (6th Cir.2007) (quoting United States v. Ferguson, 456 F.3d 660, 664 (6th Cir. 2006)). The § 3553(a) factors are as follows:

(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 advisory Guideline range;

(5) any pertinent policy statements issued by the Sentencing Commission;

(6) the need to avoid unwarranted sentence disparities

(7) the need to provide restitution to any victims of the offense.

See 18 U.S.C. § 3553(a).

Ultimately, the district court must follow the dictates of the so-called "parsimony provision" contained at the outset of § 3553(a). The provision mandates that the district court impose a sentence that is "sufficient, but not greater than necessary, to comply with the purposes" of § 3553(a)(2). Id. See also, United States v. Foreman, 436 F.3d 638, 644 n. 1 (6th Cir.2006) (explaining that the district court's job is not to impose a "reasonable" sentence, but to impose "a sentence sufficient, but not greater than necessary, to comply with the purposes" of section 3553(a)(2)). Thus, the district court's task is to "consider" the seven listed factors contained in § 3553(a), and then to employ that consideration in arriving at a sentence that is sufficient but not greater than necessary to accomplish the retributivist (just deserts/punishment) or utilitarian (promoting respect for the law/deterrence, protecting the community, rehabilitation) theoretical purposes of sentencing listed in § 3553(a)(2).

In other words, the parsimony provision is the "guidepost for sentencing decisions post-Booker," United States v. Ferguson, 456 F.3d 660, 667 (6th Cir.2006), yet the other applicable or pertinent § 3553(a) factors (i.e. the factors provided in §§ 3553(a)(1), (3)-(7) that are applicable to the specific case) are also a part of the sentencing court's analysis. Moreover, although the § 3553(a) factors must be "considered," the Sixth Circuit "has found that the `district court need not explicitly reference each of the § 3553(a) factors in its sentencing determination.'" United States v. Douglas, Nos. 05-6397 & 05-6458, ____ Fed.Appx., ____, ____ _ ____, 2007 WL 1892084, 2007 U.S.App. LEXIS 16557, *17-18 (6th Cir. June 29, 2007) (quoting United States v. Jones, 445 F.3d 865, 869 (6th Cir.2006); also quoting United States v. Johnson, 403 F.3d 813, 816 (6th Cir.2005) ("[T]his court has never required the `ritual incantation' of the [§ 3553(a)] factors to affirm a sentence.")).

The advisory Guidelines range, as one of the seven § 3553(a) factors, will always be considered. If, however, the Guidelines are to be truly "advisory" as the Supreme Court initially instructed in Booker and subsequently reaffirmed in Rita, then the properly calculated Guidelines range may be no more than one of several factors to consider when imposing a proper sentence pursuant to § 3553(a)'s parsimony provision. As explained by my fellow District Court Judge, the Honorable Lynn Adelman (E.D.Wis.), the Supreme Court's decision in Rita "assured district courts that the guidelines [sic] are truly advisory." United States v. Santoya, 493 F.Supp.2d 1075, 1078 (E.D.Wis.2007)¹ (citing Rita, 127 S.Ct. at 2474 (Stevens, J., concurring) ("I trust that those judges who have treated the Guidelines as virtually mandatory during the post-Booker interregnum will now recognize that the Guidelines are truly advisory.")). See also Rita, 127 S.Ct. at 2465 (stating that "the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.").

The Sixth Circuit has reaffirmed the proposition that the Guidelines are "truly advisory." See, e.g., Wilms, 495 F.3d at 279. In Wilms, the district court calculated the applicable Guidelines range, and then required the defendant to overcome the presumption that a suggested sentence, within the Guidelines range, was the correct sentence. Although the district court eventually imposed a sentence below the applicable Guidelines range, the Sixth Circuit vacated the sentence and remanded for resentencing. Citing "the Rita Court's clear admonition that a district court may not apply a presumption that a defendant should be sentenced within the applicable...