that Chalarca had no knowledge of any particular quantity of cocaine and that no particular quantity was foreseeable to him, the appropriate offense level is 12, pursuant to U.S.S.G. § 2D1.1(14). This level represents the least amount of cocaine that appears on the Drug Quantity Table.
C. Remaining Sentencing Issues
The defendant has requested that I consider an additional reduction based on defendant's role in the offense, pursuant to § 3B1.2(a). With respect to the concerted activity for which defendant is being sentenced, namely the single purchase contemplated for September 22, 1994, I decline to find that defendant played a mitigating role. I have already taken Defendant's role into account in determining his offense level. Based on Chalarca's lack of knowledge and inability to foresee the purchase of a specific quantity, Chalarca is not being held responsible for assisting Sanchez to purchase $ 70,000 worth of cocaine. Thus, I have already considered his role in the offense.
The Government has requested that I consider increasing the offense level because of the defendant's alleged perjury. Evaluating his testimony in the light most favorable to the defendant, I do not find that Chalarca willfully obstructed the administration of justice during the prosecution of this action. During Chalarca's testimony he admitted his relationship with his cousin Sanchez and his [Chalarca's] presence during the events of September 22, 1994. The only material allegation he denied was his knowing participation in a conspiracy to possess and distribute narcotics. I cannot say that this testimony was perjurious. I do not consider Chalarca's testimony with respect to the time he arrived at Wendy's or where he parked to be material. Thus, I reject the Government's contention that there should be an upward adjustment of two levels for obstruction of justice.
Therefore, at the time of sentencing, the applicable Guidelines range will be 10 to 16 months of incarceration. I have considered Chalarca's request for 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. However, I am satisfied that the above-stated Guidelines range is appropriate and that under these circumstances, there is no reason for a downward departure.
Shira A. Scheindlin
Dated: New York, New York
February 29, 1996