Opinion
02 Cr. 382 (RWS).
June 24, 2003.
SENTENCING OPINION
Defendant Carmen Lourdes Nivar ("Nivar") pled guilty on April 17, 2002 to possession with intent to distribute approximately 80 grams of cocaine base in violation of 21 U.S.C. § 812, 841(a), and 841(b)(1)(A). For the reasons set forth below, Nivar will be sentenced to time served followed by five years of supervised release.
The Defendant
Carmen Lourdes Nivar was born on August 24, 1980 in Bronx, New York. She is the oldest of three children born to the marital union of Manuel Nivar and Daphne née Vega. Nivar's mother, age 39, is a hotel housekeeper and resides in Bronx, New York. Nivar describes her relationship with her mother as marginal. Nivar's father, age 42, is a taxi driver and resides in the New York metropolitan area. Nivar has not had any contact with her father since approximately October 2002.
Nivar's parents lived together until she was approximately age 6 and her father moved out. Nivar recounts that her father was a drug addict and that he physically abused her. After her father left home, he did not provide any financial support for the family. Nivar's mother supported the family through public assistance benefits, and she sold drugs to supplement the family's income.
When Nivar was 8 years old, her mother became involved with Nelson Perez. Perez was a drug abuser and physically abusive to the family. He sexually molested Nivar. When Nivar was 10, her mother married Rafael Martinez ("Martinez"). Martinez is an alcoholic, and he also molested Nivar as a child. When Nivar complained, she was sent to live with her aunt in California when she was approximately 12 or 13 for about four months. Upon returning home, the abuse began again, and approximately three months later, Nivar was sent to the Dominican Republic to reside with her paternal uncle.
While in the Dominican Republic, Nivar became involved in a romantic relationship with Jose Melendez, who was six years her senior. She subsequently became pregnant when she was age 14, and her daughter, Crystal Melendez ("Crystal"), was born when she was age 15. Nivar's mother retrieved her from the Dominican Republic when she was five months pregnant.
At this point, Nivar's mother was selling and transporting drugs. She was arrested on at least two occasions and served three months and a probation term. When Nivar was approximately 16, her mother became a fugitive from the law, as a result of her drug activities, and moved out of the family apartment in an effort to avoid detection.
At age 17, Nivar was left to care for her siblings and her own child. The rent was paid by public assistance and Nivar's boyfriend, Joseph Peralta ("Peralta"). Peralta is a purported narcotics dealer. Nivar's brother also began selling drugs to supplement their income. Nivar explains his conduct as a necessity as her mother refused to give the children any of the Social Security benefits she was receiving on their behalf. In 1999, the apartment caught on fire, and they resided in a shelter for three months. The fire started because Nivar's brother left a candle burning because they did not have electricity.
Nivar then obtained an apartment where she continued to reside with her daughter, her brother, and Peralta. Nivar's sister joined them, residing with them for the past three years, and Nivar provided support for her while she was working. However, in March of 2003, the sister began experiencing behavioral problems and was sent to live with the paternal uncle in the Dominican Republic. Nivar's brother is currently incarcerated in Green Correctional Facility after having been convicted of assault. His expected release date is sometime in 2005.
Nivar was involved in a consensual relationship with Peralta from 1996 to June 2001. Nivar describes her relationship with Peralta as abusive. Peralta was arrested in June 2001 and released in April 2002. Upon his release, he began harassing her, even threatening her with a gun. In August 2002, Peralta beat Nivar to the point where she required stitches to close one of her wounds. Nivar still bears a scar from this beating. Peralta was subsequently rearrested and reportedly serving a 3 1/2 year sentence. However, in February 2003, Nivar indicated that Peralta had been released and was again harassing her.
Nivar has been involved in a consensual relationship with Robert Legear for the past two years. Legear, age 27, is employed as a maintenance man and resides with Nivar. Nivar gave birth to their son, Zemond Iziah, on June 2, 2003. Legear provides financial support for Nivar and her daughter, Crystal, now age 7. He is aware of Nivar's present legal circumstances and has been supportive.
Nivar currently resides in a four-bedroom apartment with her daughter, Legear, and her aunt, Alicia Vega. Her aunt is on parole as a result of a narcotics conviction.
Nivar began using marijuana at age 12. Her occasional use continued until she moved to the Dominican Republic at age 14. She related that in 1996 she resumed using marijuana and her daily use continued until October 2002. Nivar also admitted to using acid on one occasion when she was age 17.
From October 22, 2002 to November 20, 2002, Nivar attended a 28-day residential substance abuse program at Riverside Support Center in Port Jervis, New York. She successfully completed the program and has been "drug-free" since that time. Nivar resumed substance abuse counseling at CIS, a substance/mental health treatment center in New York, New York, upon her release from the Riverside Support Center. According to CIS, she is progressing well in her treatment. In January 2003, Nivar began attending weekly psychotherapy sessions at CIS in addition to drug counseling. She tested negative for any illicit narcotics on January 14, 2003.
Nivar stated that from October 2001 to December 2001, she was taking a two-month nursing assistant course and that she did not complete the program due to her arrest for the instant offense. Documentation from the training program indicates that Nivar started the program on November 12, 2001 and was terminated on February 14, 2002 due to lack of attendance. A letter from the programs academic director states, "Her academic record was a strong one, completing 20 of the 30 lessons with outstanding grades."
Nivar has been unemployed since December 2001. She is currently receiving financial assistance from Legear and her mother, and she receives medicaid benefits. From September 2001 to December 2001, Nivar was employed as a customer service representative at an independent Voicestream dealer in Bronx, New York, earning approximately $275 weekly "off the books."
In February 2003, Nivar underwent a psychological evaluation at the request of defense counsel. The evaluation indicated the following:
The negative affects [sic] of incest, lack of emotional support by her mother, and living in a household where those in authority, namely her parents, could not be trusted to provided a safe environment, caused symptoms common to those with histories such as hers. She became depressed (withdrawn), agitated, lacked trust in others (especially authority figures), felt confused, perceived herself as a failure, turned to marijuana to mask the depression and anger, and became involved in early sexual activity, which she perceived (because of her experience with a parental figure) as the way to obtain affection. She began to sexualize relationships, which led to early motherhood and loss of childhood. Additionally, she has been battered by her biological father as a child and learned to minimize the abuse in order to survive it emotionally. She `denied' and `avoided' emotional conflict and developed dysfunctional patterns of coping instead (all unconscious). This was carried into later life (with Joseph [Peralta] and others), until she perceived the abuse to be life threatening after the last episode with Joseph this past summer.
The evaluation concluded:
Carmen who has never before been involved with the Criminal Justice System, deserves another chance. Based upon the `remarkable progress' she has made in her substance abuse treatment program, and her new increased ability to empower herself so that she does not become involved in dependent, battering relationships again, we can comfortably say that Carmen is unlikely to become reentangled with the legal system. She is now, with a great deal of help and support from professionals who are strongly advocating for her, in an excellent position to change her life and begin to gain self-esteem required to begin reaching goals she had long ago set for herself.
The instant offense represents Nivar's first criminal conviction.
The Offense
On December 27, 2001, United States Marshals executed an arrest warrant for Daphne Martinez, Nivar's mother. Ms. Martinez had been charged with narcotics violations in the District of Columbia years before and had failed to appear. She did, however, leave a trail, which led law enforcement to Nivar's apartment.
In the course of searching the apartment, the police discovered an open strong box, containing crack cocaine, under Nivar's bed. Nivar admitted her guilt, indicating that she agreed to store the crack cocaine. The cocaine belonged to her former boyfriend, Peralta, and she was storing it for him, upon his orders, while he was incarcerated.
The Guidelines
As Nivar's conduct involved at least 50 but less than 150 grams of cocaine base, the base offense level is 32 pursuant to § 2D1.1(a)(3) and (c)(4) of the Sentencing Guidelines. However, under § 2D1.1(a)(3), if the defendant receives a rule adjustment under § 3B1.2, the base offense level shall be no more than 30. Since Nivar meets the criteria set forth in subdivisions (1)-(5) of § 5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases), the offense level is decreased by two levels, pursuant to § 2D1.1(b)(6). Furthermore, as Nivar's participation in the offense was between that of a minor participant and a minimal participant, a three-level reduction in the offense level is warranted, pursuant to § 3B1.2. Finally, based on acceptance of responsibility, three levels are subtracted. The resulting total in an adjusted offense level of 22.
Nivar has no criminal history, resulting in a Criminal History Category of I.
Based on a total offense level of 22 and a Criminal History Category of I, the Guideline range for imprisonment is 41 to 51 months (the Stipulated Sentencing Guidelines Range). Title 21 U.S.C. § 841(b)(1)(A) requires a minimum term of imprisonment of 120 months, pursuant to § 5G1.1(b).
By statute, the mandatory minimum term of imprisonment for this offense is ten years, while the maximum is life. 21 U.S.C. § 841(b)(1)(A).
The guideline range for a term of supervised release is 3 to 5 years, pursuant to § 5D1.2(b). By statute, a term of at least 5 years' supervised release is required if a sentence of imprisonment is imposed, pursuant to 21 U.S.C. § 841(b)(1)(A).
Nivar is not eligible for probation because the instant offense is one for which probation has been expressly precluded by statute, pursuant to 18 U.S.C. § 3561(a)(2) and 21 U.S.C. § 841(b)(1)(B) and 846 and § 5B1.1(b)(2) of the Guidelines.
A special assessment of $100 is mandatory, pursuant to 18 U.S.C. § 3013.
Downward Departure
Nivar's life is marked by a long history of family dysfunction, abuse, and social ills. Nivar's father was a crack abuser and physically abused her. Her mother's subsequent boyfriends were also physically abusive and sexually molested her. Nivar was sent away from home at a young age and became pregnant at age 14. Upon returning home, Nivar was left to take care of her siblings and daughter when her mother became a fugitive of the law. Nivar herself became involved in an abusive relationship, and the instant offense is a result of this relationship.
Under 18 U.S.C.S. § 3353(b), a district court may depart from the guideline range if it finds circumstances "not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." See also U.S.S.G. § 5K2.0 (same). Family ties and responsibilities are not "ordinarily relevant in determining whether a sentence should be outside the guidelines," 18 U.S.S.G. § 5H1.6, but if family circumstances are extraordinary, they can be considered by the court in making a downward departure. United States v. Alba, 933 F.2d 1117, 1122 (2d Cir. 1991); see also United States v. Sharpsteen, 913 F.2d 59, 63 (2d Cir. 1990) ("The clear implication of section 5H1.6 is that if the court finds that the circumstances related to family ties and relationships are extraordinary, it is not precluded as a matter of law from taking them into account in making a downward departure.").
Thus, courts have found downward departure appropriate when "incarceration in accordance with the Guidelines might well result in the destruction of an otherwise strong family unit."Alba, 933 F.2d at 1122. E.g., id. (approving downward departure based on defendant's support of his wife, two children, and a disabled father and grandmother); United States v. Johnson, 964 F.2d 124 (2d Cir. 1992) (approving downward departure where a defendant was solely responsible for raising children); United States v. Pagan, No. 98 Cr. 1316, 2000 WL 385515, at *2 (S.D.N.Y. Apr. 14, 2000) (approving downward departure when otherwise defendant's children would "remain in the foster care system indefinitely."); United States v. Pena, 930 F.2d 1486 (10th Cir. 1991) (affirming downward departure where defendant supported infant and minor daughter with infant). Courts are "reluctant to wreak extraordinary destruction on dependents who rely solely on the defendant for their upbringing." Johnson, 964 F.2d at 129.
The family circumstances in this case are extraordinary. If Nivar is incarcerated, she will be unable to provide for her two children: Crystal, age 7, and Zemond, born on June 2, 2003. There is no other family member to care for these children. Legear is not prepared to take care of them; Nivar's mother still lives with Martinez, who has a history of sexual abuse; Peralta has a history of physical abuse; Nivar has had no contact with her father, a drug addict, in over a year; Nivar's brother is incarcerated; her aunt is on parole; and her sister is out of the country and suffering from her own emotional problems. By all accounts, Nivar has a close and loving relationship with her children, and Crystal's report cards demonstrate a well-adjusted child, who is thriving at school.
Furthermore, this is Nivar's first contact with the Criminal Justice system, and she has taken important steps towards rehabilitation, undergoing drug treatment and starting psychotherapy sessions. Thus, downward departure is warranted in this case.
A sentence of time served to be followed by a lengthy term of supervised release, with the special conditions that she participate in substance abuse treatment and mental health counseling, will effect personal deterrence, while taking into consideration the particular dynamics within this family unit.
The Sentence
Nivar will be sentenced to time served followed by five years of supervised release. Nivar is to report to the nearest Probation Office within 72 hours of his release from custody, and supervision shall be in the district of residence. As mandatory conditions of supervised release, Nivar shall (1) abide by the standard terms of supervised release (1-13); (2) not commit another federal, state, or local crime; (3) not illegally possess a controlled substance; and (4) not possess a firearm or destructive devise.
In addition, the following special conditions will be imposed. Nivar will participate in a program approved by the United States Probation Office for substance abuse, which program may include testing to determine whether the defendant has reverted to the use of drugs or alcohol. Available drug treatment evaluations and reports will be released to the substance abuse treatment provider, as approved by the Probation Officer. Nivar will be required to contribute to the costs of services rendered (co-payment) in an amount to be determined by the probation officer, based on ability to pay or availability of third-party payment.
Nivar will further participate in a mental health program approved by the U.S. Probation Office. She shall continue to take any prescribed medications unless otherwise instructed by the health care provider. All available psychological and psychiatric evaluations and reports shall be released to the health care provider. Nivar shall contribute the costs of services rendered not covered by third-party payment if she has the ability to pay.
A special assessment fee of $100 is mandatory and is due immediately.
This sentence is subject to modification at the sentencing hearing now set for June 26, 2003.
It is so ordered.