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UNITED STATES v. LILIANA GAVIRIA

October 22, 1992

UNITED STATES OF AMERICA, against MARIA LILIANA GAVIRIA, Defendant.


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

 WEINSTEIN, J.:

 Defendant pled guilty to knowingly and intentionally possessing cocaine with intent to distribute. 21 U.S.C. § 841(a)(1). Her offense carries a mandatory minimum sentence of five years. 21 U.S.C. § 841(b)(1)(B)(iii). The Sentencing Guidelines call for a sentence of between 70 and 87 months. Because of defendant's subservience to her husband who was himself primarily responsible for her acts, the court departs downward to the statutory minimum.

 The court held a Fatico hearing prior to sentencing. Defendant's testimony, the report of a psychiatrist who interviewed her and the report prepared by Probation established the following facts.

 Maria Liliana Gaviria is now 21 years old. She was born in Columbia where she grew up in poverty-stricken neighborhoods of Medellin. She remains a Columbian citizen. Her parents had two other children together. When defendant was four, her father left for good. He now has a total of eighteen children. Another man, Manual Antonio Henao, moved in after the father left. Defendant's mother had two children by Mr. Henao and also took in three abandoned children. One of defendant's sisters is now in the United States but refuses to see her. The other siblings remain in Columbia.

 Mr. Henao beat defendant frequently with cables and pieces of wood. A babysitter also abused her and her siblings. The babysitter stripped the children and left them naked in a closed room. She beat them, especially defendant who resisted more than the others. Defendant's aunt, accusing defendant of having sex with the local butcher, also beat her while the aunt's friends held defendant by the hands and feet.

 Life in defendant's home was hand-to-mouth. She left school after the fifth grade. She learned the survival tactics of the street. She would travel to wealthy neighborhoods, beg for clothes and bring them home to the family. The family lived in a rented house and sublet most of the rooms to others. Defendant's husband met her when he came to visit one of the tenants. He was twenty-three and she was fifteen. They married about one year later.

 Defendant's husband used drugs, stole and was involved with other women. He refused to give her money for food. He would badly beat her, then attack her sexually. After she became pregnant, the beatings continued. In one incident, he stabbed her in the thigh with a knife. Her daughter was born prematurely. She had a second child, a boy. Defendant remained with her husband, hoping the violence would cease.

 In 1987, defendant and her husband left the children in Columbia and crossed illegally into the United States through Mexico. He assured her that he would support the children but never did. They remain in poverty in Columbia, lacking clothes.

 The couple flew to New York where he dealt in drugs. He insisted that she assist him in his drug operation.

 He continued to beat her. If she bled, he would hit her harder. He once punched her hard enough in the head to render her unconscious for an extended period.

 Defendant remained dependent on her husband and his friends. She did not know English, had no money and did not know how to travel. She feared death at the hands of her husband. She complied with his orders.

 On December 4, 1989 Drug Enforcement Administration agents executed a search warrant at an apartment in Queens. When they entered, they saw defendant throw a brown bag off the balcony. The agents discovered 22.2 grams of cocaine base in the bag. They found another 45.5 grams of cocaine base in defendant's jacket which they recovered from the bedroom closet.

 A psychiatrist concluded that defendant suffers from anxiety and depression and that she "reflects the stigmata of an abused person, lacks any sense of self esteem, is uneducated, dependent and has clearly been on the street and scrounging most of her life. . . . [She is] a sad and lonely woman with little sense of her worth and with a potential for further victimization."

 The Guidelines dictate an offense level of 32 for the 67.7 grams of cocaine base. Guideline § 2D1.1(a)(3). Three points are subtracted for acceptance of responsibility. Id. § 3E1.1(a). Since defendant was a minor participant in the overall offense, an additional two points are subtracted. Id. § 3B1.2(b). Her total offense level is 27. She has no criminal history. ...


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