1. The Superseding Indictment was brought against 18 defendants.

Sixteen entered guilty pleas, one remains a fugitive, and one is

now deceased.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

:

:

:

V. : CRIM. NO. 05-123-2

:

:

:

EDGARDO COLON

 MEMORANDUM OPINION

RUFE, J. JULY 27, 2006

Defendant Edgardo Colon (“Colon”) was sentenced to a term of

imprisonment of 216 months followed by five years of supervised release. Colon

pled guilty to one count of conspiracy to distribute over one kilogram of heroin in

violation of 18 U.S.C. section 846.1 Colon has filed a counseled appeal in which he

claims that he should have received a lesser sentence.

The charges against Colon are based on his involvement in the operation

of a large-scale, long-standing heroin distribution ring with its hub of criminal

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2. Guilty Plea Agreement at 5.

3. Id at 6.

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activity in the City of Allentown, Pennsylvania. Specifically, Colon was the cofounding member and co-leader of the criminal enterprise. Colon recruited relatives

and others to work for him, procured the drugs, and supervised the daily operation of

the organization. During the thirty-two months Colon ran the drug ring, the

organization distributed approximately one kilogram of heroin per month in

Allentown, which totals approximately 20,000 ten-dollar bags of heroin distributed

per month. 

As an initial matter, Colon is not permitted to appeal his sentence. As

part of his plea agreement, Colon “voluntarily and expressly waive[d] all rights to

appeal or collaterally attack [his] conviction, sentence, or any other matter relating

to this prosecution.”2 The only exceptions listed in the plea agreement, other than if

the Government filed an appeal as of right, permitted an appeal based on a claim that:

(1) the defendant’s sentence on any count of conviction

exceeds the statutory maximum for that count ...; 

(2) the sentencing judge erroneously departed upward from the Sentencing Guideli

(3) the sentencing judge, exercising the Court’s discretion

pursuant to United States v. Booker, 125 S.Ct. 738 (2005),

imposed an unreasonable sentence above the final Sentencing Guideline range determined by the Court.3

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4. See United States v. Lockett, 406 F.3d 207, 214 (3d Cir. 2005).

5. 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A).

6. See U.S. Sentencing Guidelines Manual ch. 5, pt. A 

7. See id.

8. 543 U.S. 220 (2005).

9. Id. at 264.

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None of the exceptions apply here. Therefore, it is respectfully submitted that the

Court of Appeals lacks jurisdiction to entertain Colon’s appeal.4

Nevertheless, the Court herein undertakes to set forth the rationale

buttressing the discretionary sentence imposed in this case. The Court submits that

its sentence, imposed in accordance with the federal sentencing statute, is reasonable.

Under the federal sentencing statute, Colon faced a minimum term of

imprisonment of ten years.5 It is undisputed that Colon’s total offense level under the

Sentencing Guidelines is thirty-nine and that he has a Category I Criminal History.6

Based on a total offense level of thirty-nine and a Category I Criminal History, the

guideline range for imprisonment on the conspiracy count is 262 to 327 months .7 

 However, United States v. Booker8 requires the Court to tailor the

sentence in light of other statutory concerns as well, particularly those set forth at 18

U.S.C. section 3553(a).9 That section provides, in pertinent part:

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10. 18 U.S.C.§ 3553(a).

11. See 19 U.S.C. § 3553(a)(6).

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(a) Factors to be considered in imposing a sentence.–The court shall impose a sentence sufficient, but not

greater than necessary, to comply with the purposes set

forth in paragraph (2) of this subsection. The court, in

determining the particular sentence to be imposed, shall

consider–

(1) the nature and circumstances of the offense and the history and characteristics 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

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.....

10

In sentencing the sixteen defendants in this indictment, the Court went

to great lengths to avoid unwarranted sentencing disparities among the defendants11

and to ensure that each defendant received a sentence that reflects his role in the

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conspiracy, his criminal history, his level of cooperation, his acceptance of

responsibility, and his prospects for rehabilitation. Of cours e, the Court wa s

cognizant of the mandatory statutory requirements and the advisory Sentencing

Guidelines.

Colon received one of the longest sentences of any of the sixteen

defendants because he was the co-founder and the co-leader of a large heroin ring that

poisoned the residential streets of Allentown for over three years with approximately

one kilogram of heroin per month. As the co-founder of the drug ring, Colon helped

create the business plan used by the organization to distribute heroin and provided

overall direction to the organizational managers that handled the daily narcotics

activity of the lower-level workers. Colon was involved in the conspiracy for a period

of approximately 32 months and was involved in the distribution of approximately

29 kilograms of heroin. 

 Additionally, Colon and co-defendant IsaisaSanchez (“Sanchez”) handpicked managers to oversee the runners who provided heroin and cellular telephones

to make contact with heroin customers. The runners collected the drug proceeds and

provided them to the managers who, in turn, forwarded the money to Colon and

Sanchez. In addition, Colon was in possession of a firearm at the time of his arrest,

which he used to protect the substantial profits he amassed from the heroin

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12. Sanchez, unlike Colon, was the leader of the conspiracy for

the duration of its operation, became a fugitive for five months

upon learning of his indictment, was less than forthcoming with the

Court at the time of sentencing, and demonstrated a lack of

remorse.

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distribution conspiracy. In fact, a total of fourteen firearms were recovered which the

members of the ring used to protect their interests throughout the conspiracy.

On the other hand, Colon’s actions did not warrant as long a sentence

as Sanchez.12 Colon voluntarily withdrew from the conspiracy at the time of his arrest

in June 2004. He had no prior criminal record. He was extremely remorseful at the

time of sentencing. The 216 month sentence provides Colon the opportunity to

access needed treatment and to acquire the educational and/or vocational training -

needed to achieve his rehabilitation and return to the community as a productive,

law-abiding citizen. 

Further, Colon’s statutory mandatory minimum sentence was ten years,

far less than the statutory mandatory minimum sentence of several of the organization’s low-level street dealers. The advisory sentencing guidelines range was 262 to

327 months. The sentence of 216 months strikes a balance between the range of the

sentences given the other participants in the drug ring and the goals of section

3553(a) of protecting the public, promoting respect for the law, deterring others who

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13. Specifically, the Court stated:

...So we look at the seriousness of the offense. We look

at everything about you, and then we try to create a sentence which

promotes respect for the law and protects the community as well as

deters you and others from committing this offense.

When you hear the complaint by people that someone just

got a slap on the wrist, it doesn’t achieve that, it doesn’t

promote respect, it doesn’t make others say well, I better not do

that or I will be in jail for a long time.

So, we look to create a sentence that is more important

than that. Sometimes being more important is more severe, but that

is not really the point. Yes, we’re allowed to punish. Sometimes

punishment is the way you send a message.

Sometimes punishment along with rehabilitative efforts,

correctional treatment helps you be a better person when you get

out, so that you can return to that wonderful family of yours and

be a good father, uncle, cousin, son, and I think you can do that.

Although, I can’t depreciate the significance and the

seriousness of your own participation in this criminal enterprise.

I can’t ignore your possession of a gun, I can’t ignore what you

have pled to.

So, there may be a ten year mandatory minimum here, but

it wouldn’t be fair to all of the street level dealers and the

organizers and runners that you were commanding if you were

sentenced like they are, although to balance some of that which I

have to do, I look at your history and you don’t have one, you

don’t have a criminal record, so somewhere in there I have to find

the balance.

Are you the brains, the brawn, or a little bit of both.

Did this organization flourish because of you and with you, or did

it--or were you insignificant and who just happened to be a pretty

good organizer.

I think it needed you. I think Sanchez couldn’t have done

it all by himself, or maybe somebody else would have come in, there

is always somebody to take your place, you know.

We’re trying to stop that with our sentences, that’s all

I can do, the prosecutors do other things. But, I need you and your

family to understand and the others in the community that sometimes

the only way a court can do it is with a significant sentence.

The guidelines in this case as I have already mentioned,

are ... almost twenty-two years. That’s the base of the guidelines,

double the mandatory minimum. So there is no way that the law sees

this as something insignificant.

(continued...)

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may be considering entering the lucrative business of drug dealing, recognizing the

seriousness of the offense and imposing just punishment.13

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13. (...continued)

 See Tr.of Sentencing at 36-38.

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Respectfully submitted,

/s/ Cynthia M. Rufe, J.

 _______________________

 Cynthia M. Rufe, J.

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