The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.:
Defendant Mario Panduro has moved for downward departures based on
extraordinary family circumstances and Application Note 15 to United
States Sentencing Guidelines ("U.S.S.G.") § 2D1.1. In addition,
Panduro has argued for a minor role adjustment pursuant to U.S.S.G.
§ 3B1.2(b). Lastly, Panduro has objected to the Government's
determination of drug quantity. Because there were disputed issues of
fact, a Fatico hearing was held where tape recordings of a number of
conversations between Panduro and others were received in evidence. Both
parties submitted post-hearing memoranda. I have also reviewed the
presentence report ("PSR").
Based on this record, I conclude that the base offense level is 34
because defendant's co-conspirators only agreed to buy 35 kilograms of
cocaine, rather than the 70 kilograms suggested in the PSR and urged by
the Government. Furthermore, defendant is entitled to a three-level
downward departure based on Application Note 15 and the overly generous
credit terms extended by the law enforcement officials involved in this
reverse sting operation. Finally, defendant is not entitled to a minor
role adjustment or a downward departure based on extraordinary family
circumstances. These issues will be discussed in turn.
Defendant was arrested as a result of a reverse sting operation, see
infra Part II.A, organized by Special Agent Rhett
Fonseca"). It all started when Panduro called a long-time friend, Carlos
Martinez, in Peru. See Transcript of Fatico Hearing, April 12, 2001
("4/12/01 Tr.") at 9 (Testimony of Mario Panduro). During this
conversation, Carlos Martinez mentioned a person called Junior who was
looking for someone in the United States to buy drugs. See id. at 10.
Even though Panduro disclaimed knowing anyone who could help Junior, he
received a phone call from Junior in mid-December of 1999. See id. at
11. Junior informed Panduro that he had 70 kilograms of cocaine in Miami
and that he was looking for a buyer. See id. at 12. Desperate for money,
Panduro got in touch with co-defendant Alberto Bare, a bar room
acquaintance. See id. at 12-13. Bare expressed interest in the deal and
mentioned another potential purchaser, Ezequiel Inoa. Meanwhile, Junior
introduced Panduro to someone named Lorenzo who told Panduro that the
drugs had been moved to Seattle, Washington. See id. at 17-18. At this
point, Agent Fonseca entered the scene posing as "Carlos," the person
purportedly in possession of the drugs. See id. at 18.
On January 5, 2000, Carlos had a telephone conversation with Panduro.
See id. During this conversation, Carlos and Panduro discussed price and
quantity. See Defendant's Exhibit A, Jan. 5, 2000 Tab ("1/5/00 Tr.") at
3-4. When Carlos asked "how much quantity are you looking for?," Panduro
replied "I'd say 40 exactly. And we can even buy the 60 from you,
brother." Id. at 3. Carlos then informed Panduro that the price for 40
kilograms was different than the price for 70 kilograms.*fn1 See id.
Carlos proposed a price of $16,000 per kilogram which Panduro accepted.
See id. at 6. Toward the end of the conversation, Carlos asked Panduro
whether they were talking about 70 kilograms to which Panduro responded
"Well, alright, so . . . I'm gonna call. Let me call you back. Okay?"
Id. at 8.
On January 11, 2000, Panduro and Ezequiel Inoa flew to Seattle to
discuss the details of the proposed transaction with Carlos. See 4/6/01
Tr. at 20. At that meeting, Panduro and Inoa expressed their interest in
purchasing 70 kilograms. For example, during the early part of the
meeting, Carlos asked, "We're talking about 16,000 . . . per kilo. Yes.
If you buy 70 kilos," to which Panduro responded, "For 70, exactly."
Defendant's Exhibit A, January 11, 2000 Tab ("1/11/00 Tr.") at 22. Later
on, Carlos asked, "So then you guys want the 70 for sure?" Id. at 29.
Panduro responded "The whole thing." Id. Panduro and Carlos calculated
the total purchase price to be $1,120,000, half of which the agent
proposed be paid on delivery while the other half would be paid at an
unspecified later time. See id. at 30. Panduro and Inoa wanted the entire
purchase to be on credit, but when Carlos would not agree they returned to
New York. In this regard, Panduro offered the following credible
testimony: "We didn't agree to anything because we wanted to get credit
and there was none, so we came back.". 4/12/01 Tr. at 20.
Over the next several days, Carlos had a series of telephone calls with
Panduro and a person named Reynaldo, whom Panduro described as the owner
of the business that he was representing. See 4/6/01 Tr. at 25; 4/12/01
Tr. at 23. See also Defendant's Exhibit A, Jan. 14, 2000 Tab
Tr.") at 2. Reynaldo informed Carlos that he had $300,000 for the
transaction. See 1/14/00 Tr. at 5. Reynaldo also suggested that Carlos
send a representative to New York to pick up the money while, at the same
time, he would send a representative to Seattle to pick up the cocaine.
See id. On January 19, 2000, Carlos agreed to deliver the cocaine to New
York for an additional fee. See Defendant's Exhibit A, Jan. 19, 2000 Tab
("1/19/00 Tr.") at 4; see also 4/6/01 Tr. at 26-27 (Testimony of Agent
Fonseca). To provide some assurance of payment, Carlos suggested that the
first transaction be limited to 35 kilograms. See 1/19/00 Tr. at 4. It
was then agreed that Reynaldo would pay $280,000 up front for the first
35 kilograms. See id. at 7-8. See also 4/6/01 Tr. at 27-28 (Testimony of
Agent Fonseca). No date was set for delivery of the remaining 35
kilograms.*fn2 See 4/6/01 Tr. at 72; see also 4/6/01 Tr. at 71, 72
(Agent Fonseca conceded that he did not have a firm agreement or date as
to delivery of the second 35 kilograms).
Negotiations almost broke down after that as Panduro attempted to
convince Carlos to do the deal without Panduro and Reynaldo flying to
Seattle to serve as human collateral. See 4/6/01 Tr. at 29, 32 (Testimony
of Agent Fonseca). In response, Carlos suggested that they do a straight
cash deal for 19 kilograms. See id. ("let's just do 19 kilograms and
we'll finish, and we won't have to do anything else"); see also
Defendant's Exhibit A, Jan. 31, 2000 Tab ("1/31/00 Tr.") at 5. A short
time later, Panduro called Carlos back and indicated that he would be
traveling to Seattle the following day with Alberto Bare, whom Panduro
described as an associate of Reynaldo's. See 4/6/01 Tr. at 30.
Apparently, the parties decided to go ahead with the 35 kilogram
transaction. Panduro and Bare were arrested on February 3, 2000 after an
undercover agent in New York was shown the $300,000 down payment for the
B. Panduro's Family Circumstances
Panduro has a 12 year old daughter, Talia, living in Peru who suffers
from microencephalitis (a small head). See 4/12/01 Tr. at 4. Panduro's
sister, Araly Panduro, testified that the child doesn't walk, see or
speak. See 4/6/01 Tr. at 52. She also needs to be fed and changed. See
id. While Panduro hasn't seen his daughter since 1995, he has spoken to
her on the telephone. See 4/12/01 Tr. at 5-6. While Talia only babbles on
6 the phone, she gets excited when her father calls. See id.
The Government contends that the record clearly establishes that
Panuduro and his co-conspirators agreed to purchase 70 kilograms of
cocaine from Agent Fonseca and that this amount should set Panduro's base
offense level. Panduro argues that the agreed-upon quantity was 35
kilograms and that the Government failed to carry its burden of
establishing any amount greater than 35 kilograms.
In a reverse sting, the defendant agrees to buy a certain amount of
drugs for a certain prearranged price, usually from an undercover agent
or confidential informant. See United States v. Gomez, 103 F.3d 249, 252
n. 1 (2d Cir. 1997). Because the Government unilaterally sets the
quantity and price for the most part, there is a significant risk that
the Government will inflate the agreed upon quantity in order to obtain
harsher sentences for those arrested. See United States v. Lora,
129 F. Supp.2d 77, 80 (D.Mass. 2001) ("In a sentencing regime that
largely equates culpability with the amount of drugs attributable to the
defendant, the potential for abuse by law enforcement agents is
substantial."). See also United States v. Cambrelen, 29 F. Supp.2d 120,
125 (E.D.N.Y. 1998) ("Since the shift to a sentencing scheme that
strictly ties sentencing to the quantities of drugs involved, many courts
and commentators have expressed concern over the large discretion that
law enforcement officials have in setting the amount of drugs `involved'
in a case."), aff'd, No. 98-1724L, 2001 WL 219285 (2d Cir. Mar. 6, ...