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May 1, 1996


The opinion of the court was delivered by: SCHEINDLIN

Shira A. Scheindlin, U.S.D.J.

 I. Introduction

 By letter brief dated April 2, 1996 ("Gov't Brief"), the Government seeks reconsideration of that portion of this Court's March 15, 1996 Opinion finding that defendant Pedro Sanchez ("Sanchez") is entitled to a role adjustment as a "minor participant" pursuant to U.S.S.G. § 3B1.2. For the reasons set forth below, this Court adheres to its initial determination.

 The Government's first attack is indirect. The Government appears to suggest that because both the Government and the defendant agreed in the plea agreement that "no role adjustments were warranted in this case" the Court is somehow estopped from imposing a role adjustment. For example, the Government noted that "Sanchez further agreed that no adjustments or departures were appropriate" and that "defendant did not object to the Probation Department's finding that no departures or role adjustments were warranted in this case." Gov't Brief at 9. The Government also criticized the Court for not advising the Government that it was considering a role adjustment prior to issuing an opinion concluding that a role adjustment was warranted. Id. at 2 n.1. Neither argument makes much sense.

 Courts repeatedly inform the parties at the time a plea is entered that the Court is not bound by the terms of the plea agreement. Indeed, the plea agreement letter states at page 3 that "neither the Probation Department nor the Court is bound by the above Guidelines stipulation." Rule 11(e)(1) of the Federal Rules of Criminal Procedure forbids the Court from participating in plea negotiations. While a court is required to provide notice of its intent to depart from the Guidelines, see e.g., United States v. Jagmohan, 909 F.2d 61, 63 (2d Cir. 1990), I am not aware of any similar requirement with respect to role adjustment. Nonetheless, by issuing a written opinion two weeks prior to the scheduled sentence, the Court provided adequate notice.

 The Government next argues that the role adjustment is "inappropriate," "not warranted," and "unfounded." Gov't Brief at 2, 16. It is undisputed that a district court's finding as to a defendant's role in a criminal activity is a factual determination. United States v. Martin, 78 F.3d 808, 814 (2d Cir. 1996) (citing United States v. Shonubi, 998 F.2d 84, 90 (2d Cir. 1993)). Nonetheless, the Court must apply the appropriate legal standard in reaching its determination. Based on the totality of the circumstances in this particular case, it is my determination, once again, that Sanchez is entitled to a minor role adjustment.

 II. Factual Background

 The relevant facts are set forth in this Court's Opinion of March 15, 1996. See also orders and opinions in this case dated February 12, February 29 and March 18, 1996. Because the facts have been covered so many times, I will not repeat them here. To the extent necessary, the facts will be restated in the discussion that follows.

 III. Legal Standard

 In order to obtain a downward adjustment under U.S.S.G. § 3B1.2(b) a defendant


must prove his or her reduced culpability by a preponderance of the evidence. A sentencing court's assessment of the defendant's role in criminal activity is highly fact-specific and depends upon "the nature of the defendant's relationship to other participants, the importance of the defendant's actions to the success of the venture, and the defendant's awareness of the nature and scope of the criminal enterprise." . . .


. . . .


. . . It is not defendant's exact role or status in the criminal activity that necessarily decides this question; rather, it is an assessment of defendant's culpability in the context of all the circumstances.

 Shonubi, 998 F.2d at 90 (citing United States v. Garcia, 920 F.2d 153, 155 (2d Cir. 1990) (per curiam)) (emphasis added). *fn1"


The fact that [a defendant] played a minor role in his offense "vis-a-vis the role of his co-conspirators" is insufficient, in and of itself, to justify a two level reduction; [a defendant] must have similarly played a minor role in comparison to the average participant in [a] crime.

 United States v. Ajmal, 67 F.3d 12, 18 (2d Cir. 1995) (granting new trial on other grounds, but noting that court must consider both role in instant offense and role compared to "average" participant in determining whether to grant role adjustment).

 To obtain a sentence reduction for being a "minor participant," a defendant has the burden of establishing "by a preponderance of the evidence that he or she is entitled to a reduction due to his or her reduced level of culpability." United States v. Soto, 959 F.2d 1181, 1187 (2d Cir. 1992). In deciding whether a reduction is warranted, the district court is entitled to accept or reject the credibility of any witness, including the defendant.

 IV. Discussion

 A. This Conspiracy


1. Defendant's relationship to other participants

 As fully discussed in the prior opinion, Sanchez had no relationship whatsoever to the conspiracy to move the original 212 kilograms of cocaine from Texas to New York. The Government correctly notes that he was not charged with this conduct. This lack of relationship does indicate, however, that the defendant had no connection to those who ultimately provided the drugs. Sanchez testified that he met a woman named Alba (known by the Government to be Alba Ortiz) around 1992. Transcript of Sentencing Hearing held February 16, 1996 ("Sent. Tr.") at 37. Ortiz asked Sanchez if he might be able to find a buyer for a quantity of drugs she had. Id. at 37-38. Sanchez responded that he did not know of anyone. Id. at 38. There is no proof of any overture from Sanchez to Ortiz. On the day of her arrest (September 18), in an effort to cooperate, Ortiz attempted to arrange a meeting with Sanchez.

 After Ortiz declined to cooperate further, Sanchez began to receive calls from a confidential informant ("CI"), someone the Government concedes he did not know (see generally Trial Transcript at 136-37), who urged him to complete the transaction. Obviously Sanchez had no relationship with the CI, who was a government agent and could not be considered a member of the conspiracy. The first call occurred on September 20, two days after the call from Ortiz. From September 20 through September 22, there were seven taped telephone calls between the CI and Sanchez. *fn2" It appears that the CI placed five of those calls and that Sanchez placed the other two calls. In at least one of the calls Sanchez placed, he was responding to the CI's page (see GX 8A at 1). This is clear from a review of the transcripts. Finally, the only other member of the conspiracy is the buyer. Sanchez testified that the money was supplied by a man named Jerry, a customer in his bar. While the Government believes that the money was supplied by Sanchez' cousin (who is also his co-defendant), I have already rejected this contention for lack of proof. Thus, I accept the fact that Jerry (LNU) was the buyer. That Sanchez had little or no relationship with Jerry is evident from Sanchez' ignorance of Jerry's last name and his inability to lead the agents to Jerry.

 There is no proof anywhere in the record that Sanchez was a regular member of any organization. While the Government has great latitude to produce relevant information to the sentencing court, it has produced nothing showing that Sanchez had any previous "drug" relationship with Ortiz or Jerry or anyone else in this conspiracy.

 I specifically credit Sanchez' testimony at the Sentencing Hearing. *fn3" I do not believe he was an experienced drug dealer. I do not believe he knew the buyer (except casually), and the Government admits that Sanchez did not know the eventual seller. His conduct was naive and unsophisticated. The Government has offered no evidence to impeach Sanchez; rather, it finds his version of events inherently incredible. I disagree.

 2. Defendant's importance to the success of the venture

 A review of the seven tape recorded telephone conversations between Sanchez and the CI reveals that during at least one conversation, the CI explicitly urged Sanchez to come up with the money and complete the deal. See GX 5A at 2-3; GX 5B at 2-3. The Government dwells on the fact that at one point the CI suggested that he might sell the drugs to another customer and that Sanchez "implored" him to wait. This cuts both ways. While it may show that Sanchez wanted to complete the transaction, it also shows that he was not critical to the success of the venture. Ortiz, now replaced by the CI, could have sold the drugs to any number of buyers. The key players were those who brought the cocaine to New York and those who were arranging to sell it to any willing and able buyer. Sanchez was surely replaceable.

 3. Defendant's awareness of the nature and scope of the criminal enterprise

 As already noted, Sanchez did not know the source of the drugs, nor the participants in the transaction. When Ortiz stopped calling, Sanchez responded to a total stranger, a CI with whom he had no prior relationship. Most telling is the fact that Sanchez had never viewed the cocaine and was unaware of its level of purity. He appeared to agree on a price of $ 16,000 per kilogram without any knowledge of the quality of the goods. Sanchez made no attempt to negotiate a better price for the drugs; did not know the person from whom he planned to buy the drugs; did not know the last name of the person (Jerry) to whom he planned to turn over the drugs--in fact, Sanchez stated that he was unable to find or contact Jerry unless Jerry appeared in his bar (see Sent. Tr. at 41); and did not know that the drugs he planned to buy were part of a larger (and concededly different) conspiracy to move cocaine from Texas to New York. In short, Sanchez appears wholly unfamiliar with the business of buying and selling narcotics. These factors demonstrate that he was unaware of the nature and scope of the criminal enterprise.

 Based on the "context of all the circumstances," defendant has met his burden of demonstrating that he played a minor role in this offense as compared to his co-conspirators.

 B. The Average Participant

 Application Note 4 to § 3B1.2 requires that the culpability of the defendant be compared with that of the typical offender convicted of the same federal crime. "The inference drawn from this Application Note is that the Sentencing Commission intends for culpability to be gauged relative to the elements of the offense of conviction, not simply relative to co-perpetrators." United States v. Pena, 33 F.3d 2, 3 (2d Cir. 1994).

 There are many roles in a conspiracy. A typical conspiracy involves a supplier, a courier, a middleman and a buyer. If his role must be typed, Sanchez must be classified as a middleman. His role was to bring together the buyer and the seller. For his efforts, he was to receive a fee of $ 500 per kilogram. The Court must then focus on the typical offender convicted on conspiracy.

 The most culpable conspirator is usually the supplier, the conspirator who controls large quantities of drugs. The courier also ranks high on the culpability scale because he or she carries drugs from place to place and often uses weapons or other elements of violence. The next most culpable must be the buyer as he or she distributes quantities of drugs to other dealers, thereby becoming a retail level supplier. In my view, the least culpable is the facilitator (or those who assist the deal by acting as driver or lookout). *fn4" As a facilitator, Sanchez is by definition less culpable than the typical offender convicted of conspiracy to distribute drugs.

 Going one step further, I shall try to compare Sanchez to a typical facilitator. I would think that a typical facilitator has regular clients--either buyers looking for a source of drugs or sellers seeking buyers. This role would result in repeated instances of arranging sales. Sanchez appears to be atypical. The Government has called the Court's attention to only one transaction. Sanchez had a great deal of trouble producing the required money. He agreed to a price without viewing or sampling the drugs. He did not know either the seller or the buyer. He had no weapon (nor did his driver) and he met the CI in a public place, although he tried to avoid doing so. These facts lead me to conclude that he was an atypical facilitator. For these reasons, Sanchez has demonstrated that he is less culpable when measured against the "average participant."

 Shira A. Scheindlin


 Dated: New York, New York

 May 1, 1996

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