The opinion of the court was delivered by: SCHEINDLIN
Shira A. Scheindlin, U.S.D.J.
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.
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.
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.
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).