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UNITED STATES v. SANCHEZ

February 29, 1996

UNITED STATES OF AMERICA
v.
PEDRO SANCHEZ and MARIO CHALARCA, Defendants.



The opinion of the court was delivered by: SCHEINDLIN

 Shira A. Scheindlin, U.S.D.J.

 Defendant Mario Chalarca ("Chalarca") was convicted after trial of a single count of conspiring to distribute or possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). Chalarca pled not guilty prior to trial, and maintained his innocence at trial, testifying in his own defense. He continues to maintain his innocence at the sentencing stage. He has been in custody since his conviction on June 13, 1995.

 A number of issues have been raised relating to his sentencing. Defense counsel has submitted three letter briefs (October 3, November 20 and December 15, 1995); the Government has responded with two letter briefs (October 29 and November 20, 1995). Both the Government and Chalarca have offered evidence, and at the hearing on February 13, 1996, each counsel had the opportunity to argue on his client's behalf. Sentencing has been adjourned to March 4, 1996, pending resolution of the disputes raised. This opinion addresses those disputes.

 FACTUAL BACKGROUND

 This brief factual summary is based on the presentence investigation report prepared by the Probation Department on September 15, 1995 and revised on October 4, 1995. On September 14, 1994, and on several occasions thereafter, an undercover agent ("UC") met with a woman known as Alba Ortiz. Ortiz advised the UC that she was planning to send 212 kilograms of cocaine, packaged in eleven suitcases, from Texas to New York. She further advised him that she would be "paid" 12 kilograms for her efforts. The UC arranged for the cocaine to be seized in Texas. The lab report reveals that the seized cocaine was 90% pure, indicating a very high quality of cocaine. In its place the UC transported the eleven suitcases to New York, now filled with a look-alike, non-controlled substance.

 On September 18, 1994, the undercover met with Ms. Ortiz, who stated that she had found a buyer for the 12 kilograms. She was then arrested, along with others who had arrived with her to meet the van. A diary/telephone directory was seized from her purse, as well as a pager. Several times on September 18 and 19, the pager registered Code "55". On September 20, 1994, a confidential informant ("CI") contacted the user of Code "55" (whose number appeared on the pager) and arranged a meeting. Code "55" turned out to be the defendant Pedro Sanchez. At the meeting, the CI informed Sanchez that he was in charge of "the woman's" merchandise and they discussed the upcoming sale. Sanchez told the CI that he was collecting money for the transaction and that he would let the CI know how much money he had. On September 21, 1994, Sanchez told the CI that he still did not have the money. The CI responded that if he did not have the money soon, the CI would sell the cocaine to someone else. On September 22, 1994, Sanchez indicated that he had raised $ 70,000.

 Sanchez and the CI agreed to meet later that day at a Wendy's parking lot in Queens in order to purchase the drugs. The CI, together with DEA surveillance teams, were the first to arrive at the parking lot. Shortly thereafter, Sanchez and the defendant Chalarca arrived in a Jeep driven by Chalarca. Sanchez left the vehicle to meet with the CI. The two of them then returned to the Jeep in response to the CI's request to see the money. Sanchez, sitting in the front passenger seat, asked Chalarca to hand him a black bag from the back seat. Chalarca handed him the bag, which was then unzipped, revealing what appeared to be $ 70,000 in cash. The CI counted by tens to 70,000. After the CI viewed the money, he gave the arrest signal and both defendants were arrested. All contacts between the CI and Sanchez were tape recorded. These recordings and the accompanying transcripts were a part of both the trial record and the record at this sentencing proceeding.

 Sanchez pled guilty on May 16, 1995. At his plea, Sanchez stated that Chalarca did not know anything about the drug deal and had nothing to do with it. More recently, at his "safety valve" interview and at a sentencing hearing, Sanchez again stated that Chalarca knew nothing about the drug deal and was not involved. *fn1" However, according to the testimony of Agent David McNamara, one of the arresting officers, Sanchez made a post-arrest statement that Chalarca had the contacts to sell the drugs. Sanchez denies making this statement and denies the accuracy of the statement.

 The Government seeks to hold both defendants liable for possession with intent to distribute the entire 12 kilograms of cocaine. If Chalarca is responsible for this amount, then he faces a mandatory minimum sentence of ten years imprisonment as required by 21 U.S.C. § 841(b)(1)(A) [more than 5 kilograms of cocaine]. If he is responsible for whatever amount of cocaine could have been purchased by the $ 70,000 found in the Jeep, then he faces a mandatory minimum sentence of five years imprisonment as required by 21 U.S.C. § 841(b)(1)(B) [more than 500 grams or 1/2 kilogram of cocaine].

 THE SENTENCING ISSUES

 Chalarca has raised several issues relating to sentence. It is well known that sentencing accountability is based on different principles than criminal liability. For sentencing purposes with respect to a conspiracy conviction, "a district court must make a particularized finding as to whether the [alleged quantity] was foreseeable to the defendant." United States v. Studley, 47 F.3d 569, 574-75 (2d Cir. 1995); see also United States v. Martinez, 987 F.2d 920, 926 (2d Cir. 1993) ("we hold that the same 'reasonable foreseeability' standard of the Guidelines must be applied to sentencing for conspiracy under 21 U.S.C. § 846"). A defendant in a conspiracy case may only be sentenced for that quantity of drugs that a court finds by a preponderance of the evidence was reasonably foreseeable by that defendant. When a defendant claims that he is not responsible for the entire amount of narcotics attributable to the conspiracy, he bears the burden of establishing his lack of knowledge and lack of foreseeability. United States v. Hendrickson, 26 F.3d 321, 334 (2d Cir. 1994); United States v. Negron, 967 F.2d 68, 72 (2d Cir. 1992). *fn2" Chalarca contends that the 12 kilograms of cocaine that Sanchez was negotiating to purchase were not foreseeable to him. In fact, Chalarca contends that he could not foresee even the amount of cocaine that $ 70,000 could purchase.

 Chalarca next contends that if the Court finds that he could foresee a specific quantity of cocaine, that amount should be approximately 3.5 kilograms (warranting a five year mandatory sentence) as opposed to 12 kilograms (warranting a ten year mandatory sentence). Chalarca further argues that he should be given a four level reduction, pursuant to U.S.S.G. § 3B1.2(a). Finally, Chalarca seeks a downward departure based on less than minimal participation in the charged conduct, extraordinary family circumstances, and lack of any proprietary interest in the narcotics or money.

 The Government, in turn, seeks a two level increase pursuant to U.S.S.G. § 3C1.1, contending that Chalarca committed perjury in testifying at trial that he had no knowledge of this drug transaction. Application Note 1 to this section states that in applying this provision in respect to alleged false testimony or statements by the defendant, such ...


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