United States v. Fisher

• Citation: 451 F.Supp.2d 553
• Decision Date: 11 October 2005
• Docket Number: No. S3 03 CR 1501 SAS.,S3 03 CR 1501 SAS.
• Parties: UNITED STATES of America v. Otis FISHER, Defendant.
• Court: U.S. District Court — Southern District of New York

451 F.Supp.2d 553

UNITED STATES of America v. Otis FISHER, Defendant.

No. S3 03 CR 1501 SAS.

United States District Court, S.D. New York.

October 11, 2005.

David Jaffe, Laurie Korenbaum, Assistant United States Attorneys, New York City, for the Government.

Francisco E. Celedonio, New York City, for Defendant.

OPINION AND ORDER

SCHEINDLIN, District Judge.

I. INTRODUCTION

In the eleven years that I have served as a district court judge, I have been troubled by the exceedingly harsh sentences imposed on those who deal in crack cocaine.¹ I find it unsettling, for example, that a defendant who deals five grams of crack cocaine faces the same sentence as a defendant who deals five hundred grams of powder cocaine. This stark disparity is commonly referred to as the "100:1 ratio."²

Congress adopted the 100:1 ratio in 1986, setting mandatory minimum sentences based on the quantity of cocaine, in crack or powder form.³ The Sentencing Commission, following Congress' lead, adopted the same ratio in 1987, when it fashioned the Drug Quantity Table found at section 2D1.1(c) of the United States Sentencing Guidelines (the "Guidelines" or "U.S.S.G."). Under the Guidelines, the Drug Quantity Table determines a defendant's offense level, which ultimately controls the Guidelines sentence range.

After the Supreme Court's decision in United States v. Booker,⁴ the statutory minimum sentences remain mandatory, but the Guidelines can no longer bind a sentencing court. Indeed, it would be unconstitutional under Booker for a court to treat the Guidelines as mandatory and conclude that it could not impose a sentence above or below the sentencing range determined primarily by the Drug Quantity Table.

In United States v. Crosby, the Second Circuit outlined sentencing procedures a court must follow after Booker.⁵ First, the court must set the Guidelines range (including any departures)—here by applying the 100:1 ratio contained in the Drug Quantity Table. The court must then determine a reasonable sentence based on all of the factors listed in section 3553(a) of Title 18 of the United States Code ("section 3553(a)"). That section requires a court to impose a sentence that is "sufficient but not greater than necessary to comply with the purposes [of sentencing]."⁶ To do this, a court must be free to impose a sentence above or below the range set by the Guidelines.

This Opinion addresses the tension between a mandatory minimum sentence and a non-Guidelines sentence, the former based solely on the notion that crack cocaine dealers should be punished much more severely than powder cocaine dealers as a function of relative drug quantity. In short, the sentencing disparity created by the 100:1 ratio presents two significant dilemmas. First, the ratio is binding for one purpose—imposing the mandatory minimum sentence—but is not binding for the purpose of imposing the ultimate sentence. Second, the Guidelines sentence, determined primarily by drug quantity, is often inconsistent with section 3553(a) because it is greater than necessary to achieve the goals of sentencing.

After a five-week jury trial, Otis Fisher was convicted of conspiracy to distribute crack cocaine (Count 1) and use of a firearm during a drug-trafficking offense (Count 2). On September 20, 2005, I sentenced Fisher to a non-Guidelines sentence of 151 months on Count 1 and a mandatory sixty consecutive months on Count 2, to be followed by a five-year period of supervised release. This Opinion sets forth my reasons for imposing a non-Guidelines sentence.

II. BACKGROUND

A. The Offense Conduct

1. The Organization

Between 1999 and 2003, two of Fisher's co-defendants, Ricardo Rodriguez and Paul Thompson, were the leaders of an organization known as the Killer Bronx Committee or KBC, which distributed crack cocaine in the Bronx⁷ and Vermont.⁸ Its members included Fisher, Jason Rose, Junior Robinson, Damion Henry, Tai Todd, Stephen Reid, Kevin Jones, Kevin Brown, Tyrone Kindred, Orlando Gordon and others known and unknown.⁹ Fisher, together with others, helped manage the organization's crack-selling operations.¹⁰ The organization controlled the sale of crack cocaine on 228^th Street between White Plains Road and Barnes Avenue in the Bronx.¹¹ Rodriguez and Thompson distributed crack cocaine to their sellers, including Fisher, Henry, Jones, and Reid, who then distributed it to the customers.¹² From January 2001 onward, KBC's crack cocaine business was very successful.¹³ Members of the organization were selling large amounts of crack cocaine each day, and customers were constantly streaming into the organization's stash houses.¹⁴ The organization branched out into Vermont in April 2003.¹⁵

Rock testified that she met Fisher in April 2003 in Winooski, Vermont.¹⁶ Fisher and Rock began dating and Fisher soon moved into Rock's house.¹⁷ Shortly thereafter, Fisher began bringing other KBC members to Rock's house for the purpose of selling crack cocaine.¹⁸ Fisher and Rodriguez cooked crack cocaine inside Rock's house and, along with Robinson, packaged it there.¹⁹ All of the members carried firearms while in Rock's house.²⁰ Rock testified that during the three to four month period that the organization sold crack cocaine from her home, she observed sales around the clock.²¹ Beginning in October 2003, members of KBC ran their business from another location in Winooski, Vermont.²² After several police officers raided Rock's house and arrested her, she did not see any KBC member again until trial.²³ In December 2003, the group returned to East 228th Street to resume selling drugs in the Bronx.²⁴ Detectives from the Bronx Gang Squad arrested KBC members over a two-day period beginning on January 26, 2004.²⁵

2. Drug Quantity

Cooperator testimony, from Kindred, Gordon and Rock, established that Fisher was a fully active and knowing participant in the group led by Rodriguez and Thompson. Fisher joined the group in 2001, after it took control of the crack cocaine trade on East 228^th Street and White Plains Road. Specifically, Kindred testified that he observed Fisher obtain crack cocaine from Rodriguez and Thompson.²⁶ Kindred also testified that Fisher sold crack cocaine daily on the street, served as a lookout, and packaged crack cocaine in the group's stash houses.²⁷ Kindred further testified that Rodriguez and Thompson gave Fisher packages containing $130 or $260 worth of crack cocaine every day for months at a time.²⁸ Gordon similarly testified that he observed Fisher and his co-defendants sell over $260 worth of crack cocaine, per day, over a period of months between 2001 and 2002.²⁹ The testimony of Kindred and Gordon established that it was readily foreseeable to Fisher that he and his co-conspirators sold at least 1.5 kilograms of crack cocaine during the two year period that Fisher was a member.

The testimony and evidence concerning the Vermont portion of the conspiracy only served to reinforce a finding that Fisher was responsible for selling more than 1.5 kilograms of crack cocaine. Rock witnessed Fisher and his co-defendants sell hundreds of pieces of crack cocaine from her home, ranging in value from $50 to $250.³⁰ Rock testified that 3.5 grams of crack cocaine sold for $250.³¹ She testified that crack cocaine sales at her house took place around the dock.³² Furthermore, Rock's testimony that Fisher was selling crack cocaine in Vermont is strongly corroborated by his arrest for possession of crack cocaine in Winooski, Vermont on October 20, 2003.³³

In sum, the Government has proven, by a preponderance of the evidence, that Fisher is responsible for the distribution of more than 1.5 kilograms of crack cocaine.³⁴ Where a defendant participates in jointly undertaken criminal activity, he may be sentenced based on the criminal acts of his co-conspirators so long as the other acts were committed in furtherance of the conspiracy and could reasonably have been foreseen by the defendant.³⁵ Here, it was reasonably foreseeable that Fisher and his co-conspirators would distribute more than 1.5 kilograms of crack cocaine.

B. The Guidelines

In light of the Supreme Court's decision in United States v. Booker, the Guidelines are now advisory and no longer mandatory.³⁶ However, the "first step in post-Booker sentencing is to determine the applicable Guideline range after making such findings of facts as are necessary" such as drug quantity.³⁷ A court is required to consider this Guidelines range along with the sentencing factors set forth in section 3553(a);

Defendant was convicted of participating in a drug conspiracy in violation of sections 846, 841(a)(1) and 841(b)(1)(A) of Title 21 of the United States Code, which require a statutory minimum. term of ten years. He was also convicted of aiding and abetting the use and carrying of firearms in furtherance of a narcotics conspiracy in violation of section 924(c)(1)(A)(i) of Title 18 of the United States Code, which requires a mandatory term of sixty months, consecutive to any other term of imprisonment.³⁸ Thus, the mandatory minimum term here is fifteen years in custody.

Because I find defendant to be responsible for the possession and distribution of more than 1.5 kilograms of crack cocaine, his base offense lever is 38. With respect to criminal history, the Government agrees with Fisher that he falls in Criminal History Category ("CHC") I, not CHC II as calculated by the Probation Department. The PSR assigned Fisher two criminal history points, one for each of two narcotics arrests that occurred on May 10, 2001 and November 18, 2002 in the Bronx. These arrests, however, were for conduct that was part of the offense of conviction. Pursuant to section 4A1.2 of the Guidelines, these convictions are excluded from the calculation of Fisher's criminal history.³⁹

Accordingly, Fisher's Guidelines range, based on an offense level of 38 and a CHC of I, is 235-293 months in custody, to be followed by a mandatory consecutive sixty month...