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UNITED STATES v. GENAO

August 25, 1993

UNITED STATES OF AMERICA
v.
MAXIMO GENAO, et al., Defendants


MARTIN, JR.


The opinion of the court was delivered by: JOHN S. MARTIN, JR.

JOHN S. MARTIN, JR., District Judge:

 In this case the Government is seeking to have the Court impose lengthy guideline and mandatory minimum sentences on relatively low-level drug dealers. The factual record before the Court clearly demonstrates the injustice that results from a system that has the sentence of a defendant predetermined by people who have never seen the defendant, know nothing of the defendant's background and are unaware of the particular factual circumstances of his crime.

 The draconian sentences mandated for drug dealers are adopted to punish a stereotypical drug dealer, such as those described in the following excerpt from the Congressional record:

 
They live in the fast lane. They drive big cars -- usually several -- like BMWs and Mercedeses . . . . They like gold. Big gold chains and big gold diamond rings. . . . They spend most of their money on themselves and their women.

 134 Cong. Rec. S3127 (1988) (Sen. Graham).

 While harsh mandatory minimum and guideline sentences are totally appropriate for such high-level drug dealers, they all too often are applied to people such as the defendants in this case whose lives are far from that described above.

 Presently before the Court for sentencing are eight persons, including six immigrants -- legal and illegal -- from the Dominican Republic. For the most part, they came to this country not to sell drugs, but, like many immigrants before them, to seek a better life for themselves and their families. However, the economic opportunities that they hoped to find -- indeed, legitimate jobs of any kind -- were not available. As a result, they ultimately became involved in the drug operation of Maximo Genao. Theirs was not the glamorous life of the movie version of a narcotics dealer, but rather a life in which they worked long hours for rather meager pay. A good example is the defendant Pedro Lara.

 Pedro Lara was born and raised in Villa Altagracia in the Dominican Republic. At age fifteen, he was forced to leave school to help support his family. Unable to earn a living in his own country, he learned of someone who was transporting people to Puerto Rico on a raft so that they could enter the United States illegally. Once in the United States, he found little opportunity for legitimate employment so he took a job working at a crack spot owned by Maximo Genao, an acquaintance from Villa Altagracia.

 For approximately six and one-half months, Lara worked twelve hours a day, six days a week and was paid $ 500 per week (or $ 6.95 per hour) for his efforts. While there is a semantic dispute as to whether Lara should be considered a "manager" of the spot or a "look out", there is no substantial dispute as to what his role was. Lara took bundles of crack prepared by other members of Genao's organization, delivered them to "pitchers" who sold them on the street, looked out for the cops while the sales were taking place, and then collected the proceeds from the pitchers and delivered them to another member of Genao's organization.

 On the basis of this conduct, the pre-sentence report presently before the Court calculates Pedro Lara's offense level under the Sentencing Guidelines as 38, which would require the Court to sentence Pedro Lara to jail for 19 years and 7 months. There can be no parole.

 While no one, not even the defendant, *fn1" disputes that Pedro Lara should be sentenced to a substantial prison sentence, I find it impossible to believe that any rational person could say that justice will be done if Pedro Lara is sentenced to a prison term that is greater than that served by most convicted murderers in New York State *fn2" and is over six times the sentence imposed on Ivan Boesky, a multimillionaire who, out of pure greed, engaged in massive fraud over a period of years.

 Yet the Sentencing Guidelines instruct me that in imposing sentence on Pedro Lara, I may not consider his educational or vocational skills (§ 5H1.2) or his socioeconomic background (§ 5H1.10).

 Although the Guidelines strip the Court of the power to consider such seemingly relevant background facts because the Commission expressly considered and rejected those factors, the sentencing judge is not relegated to the role of a complete automaton. Congress has empowered district judges to depart from the sentence computed under the Guidelines if the Court finds on the facts presented to it "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b). There is such a circumstance here.

 In formulating the guidelines for narcotics offenses, the Sentencing Commission places its overwhelming emphasis on the quantity of drugs involved in the offender's crime. Thus, a defendant who participates in transactions involving 1,500 kilograms or more of cocaine would have a base offense level of 42 which without adjustment would result in a sentencing range of from 20 years to life, while an offender who sold less than 25 grams of cocaine would have a base offense level of 12 resulting in a sentence of 10 to 16 months. See Guidelines § 2b11.1(a)(3), § 5A.

 While the Guidelines focus on the quantity of drugs distributed by a defendant, they do not consider at all whether, in assessing the culpability of the defendant's conduct, one should give any consideration to the quantity of narcotics in which they defendant dealt at any one time. Anyone familiar with narcotics distribution in our society would have to agree that those who deal in kilogram quantities of narcotics are more culpable than the street peddler who sells $ 10 bags. Yet under the Guidelines, a dealer caught selling a kilogram of cocaine on a single occasion would receive the same sentence as a street vendor who admitted to an undercover agent that he had sold 25 grams of cocaine a day while working on the same street corner for about seven weeks.

 Nothing in the Guidelines, policy statements or official commentary of the Sentencing Commission indicate that the Sentencing Commission adequately considered the relationship between the amount of narcotics distributed by a defendant and the length of time it took the defendant to accomplish the distribution.

 Even though I have served for only three years as a Judge of this Court, it is obvious to me that in imposing sentence the Court in most cases is looking only at a snapshot of a defendant's criminal activity. In most narcotics cases there are one or two undercover buys followed by an arrest. No reasonable person would assume that all of these defendants were simply unlucky enough to get caught the first time they became involved in narcotics. To the contrary, these defendants have usually been targeted by law enforcement because informants have identified them as regular drug dealers.

 In other cases, such as the one presently before the Court, investigations which target relatively major players within the overall scheme of drug dealing are extended for substantial periods of time in order to obtain wiretap and other types of evidence on the major drug dealers involved. At the time of sentencing, therefore, we have a much larger picture of the activities of the defendants, and, therefore, the quantity of drugs involved is vastly increased.

 It is instructive to compare Lara's guideline range with that of a defendant in an unrelated case, Richard Rodriguez, whose pre-sentence report is presently before the Court. Rodriguez and his co-defendant met with undercover agents several times during a two-month period in the fall of 1992. During that time period, they made the following drug sales:

 
1. September 24, 1992 -- 34 vials and one small bag of crack for $ 220.
 
2. October 7, 1992 -- Two "rocks" of crack ...

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