The opinion of the court was delivered by: SCHEINDLIN
Shira A. Scheindlin, U.S.D.J.
After months of urging that U.S.S.G. § 1B1.3(a) (1) (B) is the proper section to be applied in evaluating the relevant conduct of defendant Mario Chalarca for sentencing purposes,
the Government now argues, upon a motion to reconsider this Court's Opinion of February 29, 1996 ("Opinion" or "February 29 Opinion"), that the proper section is U.S.S.G. § 1B1.3(a) (1) (A). Based on this new argument, and on a firm disagreement with the Court's findings with respect to § 1B1.3(a) (1) (B), should it apply, the Government seeks reconsideration of the Court's February 29 Opinion. Because the issues raised are important to the Government, the Defendant and the Court, reconsideration is warranted.
The necessary factual background is fully set forth in the Court's February 29 Opinion. Familiarity with that Opinion is assumed. Chalarca was to be sentenced on March 4, following the release of the Opinion. At the sentence, the Government urged the Court to reconsider. The Court permitted the Government to submit a Memorandum of Law in support of its request for reconsideration. The Government filed a thirty-one page memorandum on March 6, 1996. Defendant responded on March 12, 1996. No additional hearing is required.
U.S.S.G. § 1B1.3(a) defines relevant conduct. Under this section, a defendant's offense conduct "shall be determined" on the basis of
(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity . . . all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity,
that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.
The question now confronting the Court is whether to apply § (a) (1) (A) or § (a) (1) (B) in determining the proper offense conduct for defendant Chalarca.
In my earlier Opinion, I applied § (a) (1) (B), in large part because the Government urged me to do so. In applying this Section, I found that defendant Chalarca had proved by a preponderance of the evidence that he did not know nor could he reasonably have foreseen the quantity of drugs involved in the conspiracy. Despite the fact that no party argued the applicability of § (a) (1) (A), I also addressed this Section in a lengthy footnote, holding that it should not be applied in determining Chalarca's relevant conduct. The earlier Opinion was drafted without the benefit of the Government's briefing of the issue.
The Government now cites United States v. Cardenas, 917 F.2d 683 (2d Cir. 1990), a case it deems to be controlling on the question to be decided. The Government also relies on a number of recent cases outside this Circuit that have squarely addressed this issue. See United States v. McCullah, No. 93-7118, 1996 U.S. App. LEXIS 1524, 1996 WL 44147 (10th Cir. 1996); United States v. Lockhart, 37 F.3d 1451 (10th Cir. 1994); United States v. Corral-Ibarra, 25 F.3d 430 (7th Cir. 1994).
However, the Government is unable to cite any case in this Circuit which has explicitly addressed the question now before this Court.
A. Second Circuit Case Law
Cardenas certainly does not decide the question posed. In Cardenas, defendant pled guilty to conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. Defendant, however, contested the quantity of drugs for which he should be sentenced. Relying on Application Note 1 to § 2D1.4, Defendant argued that he should not be responsible for the full quantity of drugs which was the object of the conspiracy. On appeal, the court held that this section dealt only with criminal liability, not sentencing accountability. However, without ever addressing the relevant conduct definitions contained in either §§ 1B1.3(a) (1) (A) or 1B1.3(a) (1) (B), the court held that
it is not required to find that appellant had knowledge of the exact quantity of narcotics involved in the conspiracy so long as--in considering defendant's role in the narcotics part of the charged conspiracy --the district court determines that it is convinced by a preponderance of the evidence that defendant knew or could reasonably have foreseen the quantity of drugs involved in the conspiracy.
Cardenas, 917 F.2d at 687 (emphasis added). The court went on to note that the Government had met "its burden of showing the defendant knew that this conspiracy involved 60 kilograms or could have reasonably foreseen such amount." Id. Thus, despite the fact that defendant was an active participant in the transaction, and was sentenced, in the court's words, "upon his own conduct, not upon the conduct of others, " the court nonetheless applied a foreseeability analysis. Id. at 686 (emphasis in original). The Cardenas holding has been repeatedly followed in this Circuit, which requires a court to consider the entire quantity of narcotics in the charged conspiracy and to make a finding by a preponderance of the evidence that defendant knew or could reasonably have foreseen the quantity of drugs involved in the conspiracy. See, e.g., United States v. Hendrickson, 26 F.3d 321, 334 (2d Cir. 1994); United States v. Lanni, 970 F.2d 1092, 1093 (2d Cir. 1992); United States v. Negron, 967 F.2d 68, 72 (2d Cir. 1992). Courts in this Circuit also require a defendant to demonstrate by a preponderance of the evidence that he is not responsible for the entire quantity of drugs ...