appears to be a novice in the business of drugs. He lacks any prior criminal record, no proof was offered of any prior involvement with drugs, he is a legitimate businessman and he has no unexplained wealth. In addition, Sanchez acted like a novice in handling this transaction by speaking and meeting with a total stranger, neither viewing nor tasting the drugs, and never discussing the quality (purity) of the drugs. It is therefore not surprising that Sanchez would know only the first name of the man who supplied him with the funds and to whom he intended to turn over the drugs.
For all of these reasons, I find that defendant has met his burden of persuading the Court that he is entitled to the benefit of U.S.S.G § 5C1.2. Therefore he will be sentenced in accordance with the Guidelines, without regard to the statutory minimum set forth in 21 U.S.C. § 841(b)(1)(A).
II. The Quantity of Drugs
The second question addressed at the hearing was the appropriate quantity of drugs for which Sanchez should be held accountable at sentencing. Sanchez argues that because he lacked the intent or capability to purchase the entire 12 kilograms for which he negotiated, he should be sentenced only for the amount of drugs that he was able to purchase, namely 3.5 kilograms. By contrast, the Government argues that Sanchez must be sentenced based on the entire 12 kilograms that he negotiated for and intended to purchase.
At the hearing, the Government offered the tape recordings made during the course of the conspiracy as well as the testimony of one of the arresting agents. The Government also relies on the plea agreement, the plea allocution and the PSR. Sanchez offers only his own testimony to the effect that he never had the ability to purchase 12 kilograms of cocaine.
The Government has proved, by a preponderance of the evidence, that Sanchez is responsible for the entire 12 kilograms of cocaine. First, in his plea agreement, Sanchez agreed that the applicable Sentencing Guidelines base offense level was 32, corresponding to a quantity of cocaine of at least 5 kilograms and less than 15 kilograms. In his plea agreement, Sanchez agreed that no adjustments to the Sentencing Guidelines level were appropriate. At the plea allocution, Sanchez stated that he was fully prepared to purchase 12 kilograms when he went to the "buy" location on September 22, 1994. Plea Transcript ("Pl. Tr.") at 26. Sanchez further stated that he expected to receive $ 6,000 for his participation, based on a fee of $ 500 per kilogram. Finally, Sanchez acknowledged that this was a consignment transaction. Sanchez agreed "to give [Ortiz] $ 60,000, take the 12 kilos, and then pay whatever later." Id. at 31-32. Similarly, in his Statement of Acceptance of Responsibility, Sanchez confirmed that he had "agreed to purchase 12 kilograms of cocaine from a confidential informant. For my role in this transaction, I was to receive the sum of $ 500/kilo." PSR P 27.
The tape recorded conversations also support the conclusion that Sanchez intended to purchase 12 kilograms and agreed to pay for them on consignment. On September 20, 1994, Sanchez met with the confidential informant ("CI"). During that conversation, the CI reminded Sanchez that after he received the initial cash payment, there would be "two more payments left." GX 8A at 4. Sanchez responded that he would have the money for the balance of the purchase price two or three days after he received the drugs. Id. On September 22, 1994, Sanchez appeared at the Wendy's ready, willing and able to purchase the drugs. He brought with him $ 70,000, which was more than the $ 60,000 down payment that he had agreed to make.
At the sentencing hearing, Sanchez tried to back away from his previous admissions. He now says that his taped statements were "lies" and that he never had a deal with Ortiz. This testimony is simply not credible in view of all of Sanchez' prior statements and the overwhelming nature of the evidence.
Courts have regularly held that consignment customers are responsible for the full weight of the narcotics they agree to purchase. See, e.g., United States v. Alaga, 995 F.2d 380, 382-83 (2d Cir. 1993), cert. denied, 127 L. Ed. 2d 80, 114 S. Ct. 886 (1994) (conspirators accountable for purchase of full negotiated amount even where entire transaction was made possible by an extension of credit by government undercover agents); United States v. Fowler, 990 F.2d 1005 (7th Cir. 1993) (holding that the purchase of the full amount was feasible based on the consignment agreement). There is no question here that Sanchez agreed to purchase and was capable of purchasing 12 kilograms of cocaine. His agreement was made with a coconspirator (Ortiz), not a government agent; the agreement included specific terms of price and method of payment (consignment); the agreement was performed in part in that Sanchez appeared with the down payment money which he agreed to pay once he saw the drugs;
and Sanchez confirmed the quantity involved in both his guilty plea and his statement to the Probation Department.
III. The Appropriate Offense Level
Based on the 12 kilograms that Sanchez agreed to buy, his base offense level is 32. This level is decreased an additional 2 levels (to 30) pursuant to § 2D1.1(b)(4). I find that defendant is also entitled to an additional two-level reduction for his mitigating role (to 28). Based on all the evidence, I find that defendant was a minor participant pursuant to § 3B1.2. As explained in Application Note 3 to that Section, "a minor participant means any participant who is less culpable than most other participants, but whose role could not be described as minimal." The initial conspiracy was to distribute 212 kilograms of cocaine. Alba Ortiz was to receive 12 kilograms as a fee for her role in shipping the cocaine to New York. Ortiz agreed to sell these drugs to Sanchez, who was acting on behalf of an undisclosed principal who provided the money and agreed to take the drugs. Sanchez has testified that he was to receive $ 6,000, or $ 500 per kilogram, for his role in arranging the purchase on behalf of his principal. (The evidence demonstrated that the seller was to receive and the buyer agreed to pay between $ 16,000 and $ 20,000 per kilogram of cocaine.) The level is decreased an additional 3 levels based on defendant's acceptance of responsibility (to 25). In the scheme of this overall conspiracy, I conclude that Sanchez played a minor role. Because Sanchez has no prior record he is in Criminal History Category I. Thus, he faces a sentence of 57 to 71 months incarceration.
IV. Downward Departure
Pursuant to United States v. Jagmohan, 909 F.2d 61 (2d Cir. 1990), the Government is entitled to prior notice of the Court's intention to consider a downward departure. While I have not yet made a final determination, I am considering a downward departure based on (a) a single aberrant act pursuant to U.S.S.G. Ch. 1, Pt. A.4(d); and (b) mitigating circumstances of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission pursuant to § 5K2.0 such as extreme financial pressures combined with defendant's absolute lack of the sophistication usually demonstrated by those involved in large-scale narcotics transactions. Sentence is scheduled for March 28 at 4:30 p.m.
Shira A. Scheindlin
Dated: New York, New York
March 15, 1996