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UNITED STATES v. CRUZ COTTO

June 5, 1992

UNITED STATES OF AMERICA against EDUARDO CRUZ COTTO, Defendant.


The opinion of the court was delivered by: JACK B. WEINSTEIN

 WEINSTEIN, J.:

 Defendant pled guilty to a conspiracy to obstruct commerce. See the ineptitude detailed in the companion case of United States v. Vasquez, 791 F. Supp. 348, (E.D.N.Y. 1992). He moves for an adjustment in offense levels under the Sentencing Guidelines and for a downward departure. For the reasons stated below, the offense level is adjusted down and an additional downward departure is granted.

 Defendant's intelligence is borderline. He has an I.Q. of 71. The prison doctor concluded that he "is seriously handicapped intellectually, with an I.Q. . . . just slightly above the Defective level . . . and weighing down his functioning . . . are a poor school achievement experience and certain emotional factors."

 Although he was competent to plead guilty, the defendant, as observed by the court in repeated appearances, reveals a dull mien, general slackness, and extreme passivity. These characteristics make it unlikely that he could resist attacks of predatory fellow inmates during a long prison term. The nature of the crime and the details of its execution reflect defendant's general incompetence.

 Until recently, defendant had a serious drug problem. He began smoking marijuana at age 17, and began to use cocaine and heroin by injection at age 20. From 1986 until his arrest in June 1991, he had been injecting heroin daily. In fact, it was defendant's supplier who suggested that he participate in the robbery to earn money for the purchase of drugs.

 Defendant has made substantial efforts at rehabilitation. He is presently in a methadone program at the federal correctional facility. A doctor at the institution who examined him in January 1992 concluded that defendant is now fully aware of his drug problems and has "expressed a great deal of desire to continue his [rehabilitation] program."

 Under the Guidelines, the base offense level for a Hobbs Act robbery is 20. As indicated in United States v. Vasquez, 791 F. Supp. 348, (E.D.N.Y. 1992), no increase in offense levels is warranted for a "loss" of more than $ 5,000,000, Guideline § 2B3.1(b)(6)(H), even though the defendant hoped to steal that much, nor for intending to take the property of a financial institution, Guideline § 2B3.1(b)(1), because there was no proof that the armored van he intended to help hijack contained bank funds. See Vasquez, 791 F. Supp. 348. An increase of three levels is warranted since the conspirators possessed a dangerous weapon during the conspiracy. See Vasquez, 791 F. Supp. 348.

 Defendant is granted a reduction of two levels for acceptance of responsibility. He freely admitted his role in the offense. See Guideline § 3E1.1(a).

 A further two-level reduction is warranted since he was a relatively minor, though not a minimal, participant in the offense. See Guideline § 3B1.2(b); United States v. Parker, 903 F.2d 91, 103-04 (2d Cir.) (defendant a minor, not a minimal, participant in crime), cert. denied, 112 L. Ed. 2d 158, 111 S. Ct. 196 (1990). Defendant was asleep in the automobile proceeding to the robbery site when the conspirators were arrested; he had to be awakened to be read his Miranda rights. See Vasquez, 791 F. Supp. at 348. He was among the least culpable of the conspirators involved, never fully understanding the nature of the enterprise.

 These calculations and adjustments lead to a base offense level of 19. In combination with defendant's criminal history category III a Guideline range of 37 to 46 months results.

 District courts have substantial discretion in deciding whether to depart from the Guideline range. See United States v. Sturgis, 869 F.2d 54, 57 (2d Cir. 1989); United States v. Correa-Vargas, 860 F.2d 35, 40 (2d Cir. 1988). A downward departure from that range is required since several characteristics, in combination, were not adequately taken into account by the Sentencing Commission in formulating the Guidelines. 18 U.S.C. § 3553(b).

 Although mental conditions are not ordinarily relevant in deciding whether a downward departure is warranted, see Guideline § 5H1.3, the Sentencing Commission explicitly considered the problem of diminished capacity in Guideline § 5K2.13 It provides:

 If the defendant committed a non-violent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants, a lower sentence may be warranted to reflect the extent to which reduced mental capacity contributed to the commission of the offense, provided that the ...


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