Case 1:17-cr-00315-RMB Document 52 Filed 09/20/18 Page 1 of 10

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

- v. –
S1 17 Cr. 315 (RMB)
FRANKIE BEQIRAJ

Defendant.

THE GOVERNMENT’S SENTENCING SUBMISSION

GEOFFREY S. BERMAN
United States Attorney for the
Southern District of New York
One St. Andrew’s Plaza
New York, New York 10007

David W. Denton, Jr.

Elizabeth A. Hanft
Assistant United States Attorneys
Of Counsel
 Case 1:17-cr-00315-RMB Document 52 Filed 09/20/18 Page 2 of 10

Introduction

The Government respectfully submits this memorandum concerning the sentencing of

defendant Frankie Beqiraj, scheduled to take place on November 29, 2018. For the reasons set

forth below, this Court should impose a sentence within the 360 months’ to life Guidelines range

properly calculated in the presentence investigation report (“PSR”).

I. The Offense Conduct

Beqiraj stands convicted after trial for his role as the leader of a drug enterprise that

provided one-stop shopping for addicts throughout the small Bronx community of City Island

and the surrounding neighborhoods in the Bronx and Westchester, from at least approximately

July 2016 through January 2017. After trial, the jury found that Beqiraj was responsible for

conspiring to distribute four different powerful drugs: heroin, cocaine, oxycodone, and

alprazolam (more commonly known as Xanax). He distributed those drugs in large quantities,

and most tragically, the jury convicted Beqiraj of distributing heroin that caused the death of

Robert Vivolo.

As the evidence at trial proved, on the night of Robert Vivolo’s death in October 2016,

Beqiraj arranged with Vivolo to meet at the home of Vivolo’s father, Thomas, on City Island, in

order to deliver heroin to Vivolo. (PSR ¶ 13-14). That heroin directly caused Vivolo’s death,

and he was found dead from a heroin overdose by his father in his home the next day. (Id.).

Following Vivolo’s death, Beqiraj admitted to his employee, Fabrice Diaz, that he had sold

Vivolo the drugs that killed him. (PSR ¶ 15).

Despite knowing that his drugs had killed Robert Vivolo, Beqiraj continued to sell

heroin, both directly and through employees, up until his arrest. The heroin distributed by

Beqiraj’s enterprise then caused the overdoses of three additional individuals: Joseph Petix,

Fernando Madrid, and Leonides Madrid, in New Rochelle, New York, in January 2017. (PSR ¶

1
 Case 1:17-cr-00315-RMB Document 52 Filed 09/20/18 Page 3 of 10

16). Although the heroic actions of law enforcement and other first responders saved the lives of

Petix and Fernando Madrid, they were unable to resuscitate Leonides Madrid, who died as a

result of the heroin being distributed by the defendant’s organization. (PSR ¶ 16).

Again, Beqiraj’s response to knowing that he was responsible for causing people to die

through the sales of heroin was not remorse or a reevaluation of the illegal business in which he

was engaged – it was the callous claim that merely “shit happens.” (PSR ¶ 17). In fact, Beqiraj

admitted that the deaths of Vivolo and Madrid were not the only deaths for which he was

responsible—he admitted that he had previously caused the deaths of two other City Island

residents, John Plantikow and Angelo Acocella, from overdoses on heroin that Beqiraj had sold

to them. (Id.).

The victims of Beqiraj’s enterprise were not limited to the addicts that he sold to. Beqiraj

also employed addicts to sell drugs for him (PSR ¶ 10) – two of whom (Fabrice Diaz and

Andrew Clarke) testified at trial. Clarke testified about his experience buying drugs from

Beqiraj, who sold them from his home both to addicts there for a fix and to users who would

work for Beqiraj (Trial Tr. 116-117). Clarke also testified that he knew of others who sold drugs

for Beqiraj, including both Diaz and another individual known as “Suit.” (Trial Tr. 127, 131-32).

Diaz similarly admitted to his own role selling drugs for Beqiraj during his extensive testimony,

and likewise testified to the roles of both Clarke and “Suit” as other workers distributing drugs

for the defendant as part of his enterprise (Trial Tr. 228).

This testimony was extensively corroborated by the evidence uncovered by the

investigation of this case. A large number of text messages confirmed Beqiraj’s role as the

leader of the enterprise, and that Diaz, Clarke, “Suit,” and others were working for him. (See,

e.g., GX-100A (text messages between Clarke and Robert Vivolo describing Diaz as “doing for”

2
 Case 1:17-cr-00315-RMB Document 52 Filed 09/20/18 Page 4 of 10

Beqiraj by selling “Frank’s shit”); GX-102A (text messages between Diaz and drug customer

describing Diaz as “Papa’s boy,” referring to Beqiraj); GX-101A-2 (text messages between

Beqiraj and “Harry” discussing purchases of “boxes” of heroin). Similarly, Clarke’s and Diaz’s

testimony that Beqiraj used his home as the center of his drug operation was confirmed by the

evidence recovered from his home by law enforcement, who found heroin (GX-110, 111),

oxycodone (GX-112), and a large quantity of marijuana (GX-113). Law enforcement also

recovered a scale that had previously been described by Diaz as one he had observed Beqiraj use

to weigh cocaine and marijuana for distribution (GX-115) and over 100 small plastic bags used

for packaging multiple types of drugs for sale (GX-114). That packaging was consistent with the

packaging of drugs found with Diaz at the time of Diaz’s arrest (prior to Beqiraj’s arrest in this

case). Law enforcement agents also found a little more than a thousand dollars in cash in

Beqiraj’s bedroom, primarily in the form of twenty-dollar bills..

Law enforcement also recovered Beqiraj’s pistol box from his house. (GX-116) Beqiraj

admitted to Diaz that he had possessed a firearm, but that law enforcement had failed to find the

gun itself during the search of his house (Trial Tr. 268). That gun possession was similarly

corroborated by text messages in which the defendant’s sister relayed Beqiraj’s desire to obtain a

firearm to use to retaliate against an individual Beqiraj suspected of spreading rumors that

Beqiraj sold “fake” drugs. (GX-101A (text messages from Amanda Beqiraj stating that the

defendant “wants you to bring a gun”); Trial Tr. 269-271 (Diaz testimony describing dispute)).

II. Statutory Provisions

Because the defendant was convicted of conspiring to distribute drugs that caused death,

21 U.S.C. § 841(b)(1)(B) mandates a minimum sentence of incarceration of twenty years. In his

submission, the defendant renews his generalized assertion that this provision violates the Eighth

Amendment’s prohibition on cruel and unusual punishment.

3
 Case 1:17-cr-00315-RMB Document 52 Filed 09/20/18 Page 5 of 10

The Court previously addressed this issue in its rulings on the parties’ pretrial motions at

the conference in this case on January 25, 2018. At that time, the Court deferred decision on the

issue as a formal matter, finding that the defendant “has not been convicted of any offense, so the

issue of punishment seems premature.” (Jan. 25, 2018 Tr. 13). The Court did, however, largely

address the substance of the defendant’s argument, noting that “the Court would likely deny the

motion in any event” (id.), and citing a number of cases in which either similar or identical

sentencing provisions have been upheld against constitutional challenge (id. at 14, citing United

States v. Waldrip, 859 F.3d 446 (7th Cir. 2017) (upholding death-resulting penalty provision)).

For the reasons that the Court gave at the January 25, 2018 Conference, and for those stated in

the Government’s opposition to the defendant’s motion to dismiss on the same grounds (Dkt. No.

19), the Court should reject the defendant’s constitutional challenge to the mandatory minimum

term of imprisonment.

III. The Guidelines Calculations

The PSR correctly calculates that the applicable sentencing range under the United States

Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”) is 360 months’ to life incarceration.

(PSR ¶ 97). That calculation is based on a base offense level of 38, pursuant to U.S.S.G.

§ 2D1.1(a)(2); a two-level enhancement, pursuant to U.S.S.G. § 2D1.1(b)(1), because Beqiraj

possessed a firearm; and an additional two-level enhancement, pursuant to U.S.S.G. § 3B1.1(c),

because Beqiraj was an organizer, leader, manager, or supervisor in the criminal activity. (PSR

¶¶ 25-33). In addition, as the PSR calculates, Beqiraj’s prior convictions yield a Criminal

History Category of VI. (PSR ¶¶ 35-61).

4
 Case 1:17-cr-00315-RMB Document 52 Filed 09/20/18 Page 6 of 10

The defendant raises two specific objections to the Guidelines calculation in the PSR.

First, he objects to the enhancement for leadership of the conspiracy 1 (see PSR ¶¶ 9, 28),

asserting that he was merely an occasional participant in the conspiracy, and that Diaz was the

true leader. Substantial evidence – indeed, far more than a preponderance – to the contrary was

adduced at trial. Not only did both Clarke and Diaz credibly testify to the fact that they and

others sold drugs on behalf of Beqiraj, but their testimony is also corroborated by contemporary

text messages that make plain that Beqiraj was the operation’s leader. Beqiraj was the one

responsible for arranging for the procurement of wholesale quantities of drugs from suppliers

(see, e.g., GX-102A-1, 2 (communications between Beqiraj and “Harry” about buying “boxes”

of heroin); Beqiraj maintained the supplies for weighing and packaging the drugs in his bedroom

in his home (GX-114, 115 (scale and packaging)); and Beqiraj controlled who received drugs to

sell on his behalf (see, e.g., GX-102A (text messages from Beqiraj instructing not to give drugs

to “Suit” because he was “being a traitor”). Nor was it any secret that Beqiraj was in charge –

customers knew Diaz as “Papa’s boy”—referring to Beqiraj by his self-adopted nickname—and

Robert Vivolo was only referred to Diaz by Clarke in response to Vivolo’s attempts to get in

contact with “Frankie.” In short, the evidence plainly established Beqiraj’s leadership.

The defendant similarly offers an unsupported denial of the additional enhancement for

possession of a firearm. (PSR ¶ ¶ 11, 26). Here too, the evidence is uncontroverted. As

described above, not only did law enforcement agents recoverpackaging for a firearm from

1
Section 3B1.1 applies to cases in which “the defendant was an organizer, leader,
manager, or supervisor” in the criminal activity at issue. U.S.S.G. § 3B1.1(c). A defendant need
only “exercise[] some degree of control, over others involved in the commission of the offense”
in order to qualify as a “manager or supervisor” under subsection (c), which does not require that
the criminal activity be extensive or have involved a certain number of participants. See United
States v. Caballero, 672 F. App’x 72, 75 (2d Cir. 2016) (summary order); United States v.
Diamreyan, 684 F.3d 305, 309 (2d Cir. 2012) (internal quotation marks omitted)..

5
 Case 1:17-cr-00315-RMB Document 52 Filed 09/20/18 Page 7 of 10

Beqiraj’s bedroom, but Beqiraj also admitted to possessing the firearm, That admission is

corroborated by text messages demonstrating Beqiraj’s efforts to obtain the gun and, indeed, to

possess itspecifically in connection with his drug enterprise.

IV. Analysis under 18 U.S.C. § 3553(a)

This Court should impose a sentence within the Guidelines range calculated in the PSR.

The defendant stands convicted of the most serious of narcotics offenses: causing death through

the distribution of drugs. He did so as part of a wide-ranging enterprise that sold a variety of

drugs to desperate addicts, and he co-opted some of those addicts to expand his enterprise,

increasing its damaging effects—indeed, its lethality—while simultaneously increasing the profit

for himself.

A Guidelines sentence is necessary in this case to give effect to the Section 3553(a)

factors. The offense could not be more serious – the defendant was convicted of causing Robert

Vivolo’s death, and his conduct both before and after his arrest shows a total disregard for the

consequences of his actions. Beqiraj not only continued selling drugs after causing Vivolo’s

death—drugs that caused the death of Leonides Madrid—he also dismissed the lethal

consequences of his crimes as just “shit happen[ing].” And in fact, he admitted to having caused

two prior deaths, those of John Plantikow and Angelo Acocella. To Beqiraj, the deaths of these

four men were simply the cost of doing business, and that was a cost that he was willing to

impose on those victims and their families so he could continue enriching himself.

But the Court is acutely aware of the costs of the defendant’s crimes. Thomas Vivolo,

Robert’s father, testified at trial, and submitted a further statement regarding the profound impact

of the defendant’s crime on him and his family. Robert’s family members’ harrowing

statements, also reflected in the PSR, underscore the severity of the defendant’s conduct and the

harm his greed inflicted on the small, tight-knit community where he grew up. Robert’s family

6
 Case 1:17-cr-00315-RMB Document 52 Filed 09/20/18 Page 8 of 10

“will never be the same”; will “never share what will happen in the future”; they are left only

with “memories.” (PSR ¶ 20).. Indeed, his death “has not only impacted his family but the

community as well.” (PSR ¶ 21). And the harm the defendant inflicted on those in his home

neighborhood is merely a microcosm of the effect this crime has had on our city and our country.

Overdose deaths from powerful opioids like those sold by Beqiraj are a national public health

crisis, see Josh Katz, “Drug Deaths in America are Rising Faster than Ever,” N.Y. Times (June 5,

2017, available at https://www.nytimes.com/interactive/2017/06/05/upshot/opioid-epidemic-

drug-overdose-deaths-are-rising-faster-than-ever.html), and both the City of New York and the

federal government have devoted substantial resources to treating addiction and to identifying

and prosecuting the dealers like the defendant who are responsible for these crimes. The Court

must play a role in that effort as well, and impose a sentence that, as the Guidelines reflect,

demonstrates the seriousness of the defendant’s offense, promotes respect for the law—and for

the victims of crimes that break the law, and provides just punishment for causing another human

being to die.

Similarly severe are the history and characteristics of this defendant, which demonstrate

the extraordinary need for deterrence and to protect the public through a substantial sentence of

incarceration. At only 28 years old, the defendant has amassed a criminal history score of 17—

putting him in the highest range of offenders under the Guidelines. (PSR ¶¶ 60-61). His

offenses include a variety of weapons possession (PSR ¶¶ 35-43), which is consistent with the

substantial evidence in this case of the defendant’s firearm possession in connection with his

drug dealing business. Of particular concern is that the defendant’s criminal history is replete

with actual physical harm he has caused to others: a racist attack in which he punched a man in

the face (PSR ¶ 40), a brutal robbery (PSR ¶ 45), three separate times in which he injured law

7
 Case 1:17-cr-00315-RMB Document 52 Filed 09/20/18 Page 9 of 10

enforcement officers attempting to take him into custody for his crimes (PSR ¶¶ 43, 53, 56), and

the instant offense, in which he caused Robert Vivolo’s death.

For those crimes, the defendant has been sentenced to significant terms of incarceration,

but he has simply refused to lead anything approximating a law-abiding life. He has violated

parole on multiple occasions. He has been ordered to receive treatment, both for drug abuse and

anger issues, but has not been able to successfully complete any such treatment. Moreover, the

defendant has been barely employed. In his one term of actual employment, the defendant was

fired for violation of company policy after less than three weeks (PSR ¶ 91), and he abandoned

his only other non-family employment “because he no longer wanted to work” (PSR ¶ 92).

Instead, the defendant has supported himself through crimes of theft (PSR ¶¶ 45, 49) and

narcotics (PSR ¶¶ 42, 53), including the offense of conviction, which captures his most recent

stretch of not only drug distribution, but reflects his leadership of an organized effort to expand

his criminal conduct. And while the defendant was certainly entitled to demand a trial in this

case, it is relevant for the Court’s consideration that he has never expressed any acceptance of

responsibility or remorse for his offenses—even his sentencing submission is an effort to deflect

blame onto others (despite extensive evidence to the contrary). The Court’s sentence must not

only demonstrate the seriousness of the offense to the community – it must send a message to

this defendant about the scope and severity of his conduct.

In keeping with his unusually extensive and violent criminal history, the defendant has

simply refused to engage in society through any means other than crime. His response to

causing deaths through the distribution of drugs has been nothing short of a shrug, because the

deaths of Robert Vivolo, Leonides Madrid, Angelo Acocella, and John Plantikow were not

meaningful to the defendant, even though some of those victims were friends from his

8
 Case 1:17-cr-00315-RMB Document 52 Filed 09/20/18 Page 10 of 10

community. Even though those deaths were not intentional murders, the consequences of

Beqiraj’s actions did nothing to deter him from his crimes. Accordingly, it falls to the Court to

deter him, to protect the public from him, and to promote respect for the law and for the victims

of his crimes. Accordingly, the Court should impose a lengthy sentence within the applicable

Guidelines range in order to protect the public from the defendant for as long as possible, to

promote the respect for the law that he so clearly lacks, and to achieve a measure of general

deterrence by showing that career criminals like this defendant will receive increasingly severe

sentences if they continue to commit crimes that wreak havoc in their communities by causing

death and despair and contributing to the epidemic that has reached unusual crisis levels. See

§ 3553(a).

CONCLUSION

For the reasons set forth above, this Court should impose a sentence of 360 months to life

imprisonment.

Dated: September 20, 2018

New York, New York

Respectfully submitted,

GEOFFREY S. BERMAN
United States Attorney for the
Southern District of New York

By: /s/ ____________________

David W. Denton, Jr.
Elizabeth A. Hanft
Assistant United States Attorneys
(212) 637-2744/2334