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UNITED STATES v. DELVALLE

July 11, 1997

UNITED STATES against DAVID DELVALLE, Defendant.


The opinion of the court was delivered by: WEINSTEIN

 WEINSTEIN, Senior District Judge :

 Defendant was arrested in mid-November 1995 at John F. Kennedy International Airport for attempting to assist in the retrieval of five suitcases containing 79.8 kilograms of cocaine. He pled guilty to conspiracy to possess with intent to distribute cocaine in violation of sections 841(b)(1)(B) and 846 of title 21 of the United States Code. A substantial downward departure is required for reasons set out below.

 The second eldest of five siblings, defendant, now 31 years-old, was born in East Rutherford, New Jersey. He lived there for the first year of his life, after which his family moved to Puerto Rico. The family returned to New Jersey when defendant was 16 years-old, and he has resided there since. He continues to maintain a close relationship with his family, particularly his parents. He has had no previous involvement with drugs, drinks alcohol only socially and in moderation, and has not demonstrated violent tendencies.

 While living in Puerto Rico defendant attended school at night. Intent upon becoming a mechanic, he withdrew after completing the ninth grade. He began working as a gas station attendant at the age of 15, and later attempted -- without success -- to open his own repair shop. He has worked steadily as a mechanic at a number of garages. Immediately prior to recent events defendant had been holding down two mechanic jobs -- one during the day, the other at night -- at different garages, earning in the neighborhood of $ 1300 a week.

 In 1996, while released on bail for the instant offense, defendant married his sweetheart of 14 years. They had been living together since 1986. They enjoy a committed relationship for which defendant has been the primary financial provider. They have no children.

 Defendant's incarceration -- he was remanded in May 1996 -- has been a financial, emotional and physical hardship on his wife. Since his arrest she has been employed as an administrative assistant. She is presently searching for a second job. She resides in a small house which she now shares with her sister and nephew in order to defray monthly living expenses. The couple's only asset is their 1991 Pontiac. They carry a debt surpassing $ 25,000. Defendant's wife has experienced a number of health problems -- stress, dehydration and anxiety -- since her husband's remand. Previously she was in good health.

 Defendant became embroiled in the instant offense when, on November 6, 1995, he was telephoned by a childhood friend with whom he had recently been reunited while on vacation in Puerto Rico. The friend asked if defendant would do him the favor of picking him up at J.F.K. When defendant arrived at the airport he was, to his surprise, asked to act as a "lookout." Aware that doing so was criminal, defendant nevertheless remained to help his friend. A suitcase containing drugs was placed in the trunk of his car, and defendant drove home. Later that day someone arrived at defendant's house, took the suitcase and gave defendant $ 3,500.

 Eight days later defendant was again contacted by the friend, who instructed him to pick up yet another person -- an individual with whom defendant had been acquainted since 1991 -- and his luggage at J.F.K. He initially balked, but after being importuned by his friend, acquiesced. At the airport he did not meet the acquaintance. That night the friend called and requested that defendant return to J.F.K. the following day. Defendant again refused, explaining that he could not miss another day of work. Upon being told that he would receive $ 10,000, he acceded. The next day defendant met the acquaintance at J.F.K.

 Defendant went with the acquaintance into the terminal to retrieve the luggage which had arrived the day before. Upon being informed by airline officials that the luggage had gone unclaimed, drug enforcement agents had already determined that the five pieces contained cocaine. The acquaintance entered a luggage storage room with airline officials to claim the bags while defendant waited in the main area of the terminal. After he identified the bags agents arrested the acquaintance.

 Defendant indicated that he knew the man in the agents' custody. He was then arrested. He promptly and freely told the government all that he knew of the events.

 It is uncontested that defendant's role in the offense was limited. He knew neither the type nor quantity of drugs contained in the five suitcases. He had no ownership interest in the luggage or the drugs. He did not attempt to claim the luggage himself, but only waited for his acquaintance to do so. He did not arrange for the transport of the drugs or for his acquaintance's airline tickets. Defendant only agreed to drive to J.F.K. and pick up his acquaintance as a favor to his friend. He never received the $ 10,000 he was promised.

 Under the Guidelines and the law interpreting them defendant is accountable for all 79.8 kilograms of cocaine. The base offense level for this offense, according to the Sentencing Guidelines, is 36, requiring a sentence in the range of 188 to 235 months in prison for a defendant in criminal history category I, as is this defendant. U.S.S.G. § 2D1.1(c)(2). Because defendant satisfies the five mitigating factors for the safety valve adjustment, a 2 level reduction is warranted. U.S.S.G. §§ 2D1.1(b)(4) and 5C1.2. Since defendant's role was minimal, a reduction of 4 levels is mandated. U.S.S.G. § 3B1.2(a). An additional 3 level reduction is required because of defendant's acceptance ...


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