United States v. Paredes
| Decision Date | 05 May 2016 |
| Docket Number | 15–CR–436 (JBW) |
| Citation | 185 F.Supp.3d 287 |
| Parties | United States of America v. Washington Paredes, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
For United States: Robert L. Capers, United States Attorney, EDNY, By: Mark E. Bini.
For Defendant: Len H. Kamdang, Federal Defenders of New York.
MEMORANDUM AND STATEMENT OF REASONS FOR SENTENCE
Table of Contents
I. Introduction ... 288
II. Facts ... 289
A. Offense Conduct ... 289
B. New York State DWAI ... 290
III. Procedural History ... 290
IV. Law ... 291
A. Guidelines Provisions ... 291
B. Second Circuit Precedent ... 291
C. New York DWAI Law ... 293
D. Amendment to Application Note 5 ... 295
V. Discussion ... 295
A. Criminal History Score ... 295
B. Guidelines Range ... 296
C. 18 U.S.C. § 3553(a) Considerations ... 296
VI. Consistency in Sentencing ... 298
VII. Sentence ... 298
VIII. Conclusion ... 298
I. Introduction
The question posed is whether defendant's prior plea to a New York State "infraction" for Driving While Ability Impaired ("DWAI") compels the imposition of a ten-year mandatory minimum sentence for conspiring to distribute drugs. See New York Vehicle & Traffic Law ( ) §§ 1192(1), 1193(1)(a) ; 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii)(II), 846.
According to the federal Sentencing Guidelines, the New York DWAI infraction increases defendant's criminal history score. See U.S. Sentencing Guidelines ("U.S.S.G.") § 4A1.2(c) ; Appl. Note 5 to U.S.S.G. § 4A1.2 ("Appl. Note 5"). This increase would disqualify him from receiving "safety valve" relief. See 18 U.S.C. § 3553(f)(1) ; U.S.S.G. § 5C1.2(a)(1). Without the safety valve, defendant would have to be sentenced to the federal statutory ten-year mandatory minimum.
The long term of imprisonment required by the view of the United States Sentencing Commission ("Commission") is so inconsistent with Court of Appeals for the Second Circuit precedent, New York law, and common sense as to require rejection of the Commission's position. Eight months time served rather than ten years of imprisonment is therefore imposed on defendant.
As detailed below, in a case with nearly identical facts to the present one, the Court of Appeals for the Second Circuit decided that a New York DWAI infraction should be left out of a criminal history score if specified criteria are met—as they are here. See United States v. Potes – Castillo, 638 F.3d 106, 113 (2d Cir.2011) (); United States v. Gonzalez–Rivera, No. 05–CR–402, 2011 WL 4916395, at *5 (S.D.N.Y. Oct. 17, 2011) ().
New York law defines a DWAI infraction as a civil violation, not a criminal conviction. See N.Y. Veh. & Traf. Law § 1193(l)(a) ; id. § 155. It requires less alcohol in the blood than the crime of Driving While Intoxicated ("DWI"). Compare id. § 1192(1) with id. §§ 1192(2), 1192(3). The violation need not involve "driving." See People v. O'Connor, 159 Misc.2d 1072, 607 N.Y.S.2d 856, 857–58 (Dist.Ct.Nassau Cty.1994) (collecting cases).
Were we to accept the view of the Commission, if a person were to have a few drinks, sit in the passenger seat of a car to sleep it off—for which he could not be convicted of DWAI—and later be charged with the instant offense, the court could impose no time in prison. But if that person slid over to the driver's seat to sleep and was convicted of DWAI (as he could be under New York law), this court would have to impose a mandatory sentence of ten years. That scenario is implausible in the real world of people and law.
The Commission tried to overturn the precedent set by the Court of Appeals for the Second Circuit with an amendment to its Guidelines Commentary. As amended, the Commentary states that "[c]onvictions for driving while intoxicated or under the influence ... are always counted " toward a defendant's criminal history score. Appl. Note 5 (emphasis added). Since the Commentary would lead to an absurd result, the court refuses to follow it. "[Guidelines] commentary is not ‘binding in all instances." ’ Potes–Castillo, 638 F.3d at 111 (quoting Stinson v. United States, 508 U.S. 36, 43, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) ). As Cardozo put it in Matter of Rouss, 221 N.Y. 81, 91, 116 N.E. 782 (1917), "[s]tatutes must be so construed, if possible, that absurdity and mischief may be avoided."
II. Facts
A. Offense Conduct
On August 14, 2015, United States Customs and Border Protection officers informed Homeland Security Investigation ("HSI") agents that they had found narcotics concealed in six mail packages arriving on a flight from Guayaquil, Ecuador to John F. Kennedy Airport ("JFK"). The packages were to be held in the care of Reynoso and Gallegos Courier Service in Queens, New York. Presentence Investigation Report ("PSR") ¶ 3. HSI agents removed the narcotics from the packages and replaced them with a benign substance. They also installed trip wire and mobile tracking devices inside the packages. Id. ¶ 4.
The next day, Paredes, who was a driver for Reynoso and Gallego Courier Service, retrieved the packages from the JFK cargo facility. Using the monitoring devices, HSI agents learned that defendant made several stops in Queens before returning to the courier office. The agents then met with the owner of the courier service, who gave the agents the six packages defendant had dropped off. The packages looked just like those made ready for pick-up at JFK. But, when opened, the agents discovered that the tracking devices had been removed. Id. ¶ 5.
Four days later, agents were informed that Paredes was scheduled to fly to Ecuador. He was arrested at the airport. Id. ¶ 6. Paredes remained in federal custody at the Metropolitan Detention Center for eight months until he was sentenced. Id. ¶ 49.
B. New York State DWAI
Two years ago, defendant pled guilty to having committed a DWAI infraction in violation of section 1192(1) of the New York Vehicle and Traffic Law. See N.Y. Veh. & Traf. Law § 1192(1) ; PSR ¶ 26. The State court imposed a sentence of conditional discharge for one year; participation in an alcohol abuse program; a $300 fine; and license suspension for 90 days. Paredes completed a seven-week alcohol abuse program and paid the fine. PSR ¶¶ 26, 46. He was arrested for the instant drug offense during the period of conditional discharge. Id. ¶ 27.
III. Procedural History
Paredes was charged with Conspiracy to Possess Cocaine With Intent to Distribute (Count I) and Conspiracy to Possess Heroin With Intent to Distribute (Count II, later dismissed), in violation of sections 841(a)(1), 841(b)(1)(A)(ii)(II), 841(b)(1)(B)(i), and 846 of Title 21. See Indictment, ECF No. 7. The statute provides a ten-year mandatory minimum sentence for Count I, subject to a safety valve. See 21 U.S.C. § 841(b)(1)(A)(ii)(II) (); 18 U.S.C. § 3553(f) (); U.S.S.G. § 5C1.2(a).
Paredes pled guilty to Count I pursuant to an agreement with the government. Plea Hr'g Tr. of Nov. 17, 2015, ECF No. 16, at 42:24–43:4; PSR 11. At the time, the parties believed that Paredes's DWAI infraction should be given no weight in his criminal history. Def.'s Sentencing Mem., ECF No. 21, at 1. There was no dispute that Paredes had satisfied all five requirements for safety valve relief, including proffering truthfully with the government. Plea Hr'g Tr. of Nov. 17, 2015 at 24:1–20. Thus, he would not face a ten-year mandatory minimum. Def.'s Sentencing Mem. at 1.
In the Presentence Investigation Report, however, following the Commission's view, Probation gave Paredes a criminal history point for his non-criminal DWAI violation. PSR ¶ 27. With that criminal history, Paredes could not receive safety valve relief by statute. See 18 U.S.C. § 3553(f)(1). Under this court's analysis, he would have no criminal history and the safety valve would take effect. Paredes was accordingly sentenced to time served of eight months. See Order of Apr. 13, 2016, ECF No. 25.
IV. Law
A. Guidelines Provisions
Section 4A1.2 of the Guidelines lists factors sentencing courts should use to determine whether to factor a prior sentence into a defendant's criminal history. Subsection (c) of the provision states:
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...not automatically be counted, if New York law classifies the DWAI conviction as a traffic infraction. See United States v. Paredes, 185 F. Supp. 3d 287, 289 (E.D.N.Y. 2016); United States v. Walia, No. 14-CR-213, 2016 WL 4257347, at *4 (E.D.N.Y. Aug. 11, 2016). In Paredes,the district court......