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U.S. v. PENARANDA

United States District Court, Southern District of New York


January 17, 2003

UNITED STATES OF AMERICA, AGAINST, HECTOR PENARANDA, DEFENDANT.

The opinion of the court was delivered by: Robert W. Sweet, United States District Judge

SENTENCING OPINION

On November 27, 2001, Hector Penaranda ("Penaranda") was found guilty of one count of conspiracy to possess and distribute cocaine in violation of 21 U.S.C. § 841(b)(1)(A), 846, a Class A felony.

The Offense Conduct

Patricia Lopez ("Lopez") and her partner Nelson Perez ("Perez") were drug dealers who sold multi-kilogram quantities of cocaine and heroin that was obtained from a Colombian source of supply. The drugs were smuggled into the United States by couriers in suitcases and wrapped in greased packages to thwart drug-sniff ing dogs and in x-ray paper to avoid detection. Prior to engaging in drug trafficking themselves, Lopez and Perez worked for the Colombians transporting money, the proceeds of drug trafficking, that was to be sent back to Colombia.

Lopez and Perez obtained customers from Noel Espada ("Espada"). Espada introduced Lopez and Perez to James Hernandez a/k/a "Jason," a/k/a "Chuck," a/k/a "Chuckie," ("Hernandez") and Michael Villafane, a/k/a "Mike," ("Villafane") who were drug dealers, and who thereafter purchased drugs from Lopez and Perez.

Another of Lopez's and Perez's customers was Penaranda, a drug dealer. Lopez claims that Penaranda had received at least 15 kilograms of cocaine and 200 grams of heroin for distribution from Lopez and Perez.*fn1 Penaranda paid for part of, but not all of, the drugs which he obtained from Lopez and Perez. As a result, he owed them approximately $80,000.

On October 29, 2000, Perez was shot and seriously wounded in a shoot-out at the apartment he shared with Lopez in the Bronx, New York. With Perez no longer available to help her, Lopez now had the sole responsibility of collecting the money owed to her and Perez by their customers. Lopez needed to collect this money in order to pay her Colombian drug suppliers. At the time that Perez was shot, he and Lopez were owed $300,000 by various customers, including Penaranda, Villafane and Hernandez, who owed them $50,000 for cocaine and heroin they had received.

As a result of her inability to collect money owed to her, Lopez contacted her suppliers in Colombia and explained to them the reason she could not pay her debt to them. Consequently, the Colombian suppliers dispatched Ramiro Rodriguez ("Rodriguez") from Colombia to help collect the money that the Colombian suppliers were owed. Rodriguez arrived in Miami from Bogota, Colombia, and traveled to New York, within a week of Perez getting shot. Rodriguez then spent the next few weeks helping to collect payments with Lopez.

Once in New York, Rodriguez obtained the assistance of Jose Parrado ("Parrado") to help collect the drug money that the Colombian suppliers were owed.

The first customer Lopez approached about the debt owed was Penaranda. Lopez not only wanted Penaranda to pay his own $80,000 drug debt, but also needed his assistance in contacting some other customers of hers from Baltimore, Maryland, who owed her the most money, more than $200,000. Lopez had been introduced to these customers by Penaranda. Penaranda, in turn, recruited Ramon Echivaria ("Echivaria"), a friend of his, to help collect the money.

Hernandez and Villafane had obtained more than a kilogram of heroin and more than five kilograms of cocaine from Lopez and Perez; a portion of which they wanted to return. On November 2, 2000, Hernandez and Villafane met with Espada in the Bronx, New York, to return part of the crack cocaine and heroin that they had not paid for, claiming that they could not sell it. Hernandez and Villafane, who owed $50,000 for the drugs, gave Espada a bag of approximately 300 grams of heroin. They were arrested by agents of the Drug Enforcement Administration and those drugs were seized.

On November 14, 2000, Lopez attempted to contact Noel Espada to obtain the money that Hernandez and Villafane owed her for the narcotics recovered by law enforcement as discussed above. On that day, Lopez, assisted by Ramirez, Penaranda and Parrado, went to the house of a relative of Espada and asked the relative to give Espada a pager number at which Lopez could be reached.

On November 15, 2000, Espada paged the pager number left by Lopez and spoke to her during a monitored phone conversation. During this conversation, Lopez said that she needed to meet with Espada because he told her that he had collected money that she was owed by Hernandez and Villafane. Espada and Lopez made arrangements to meet in Manhattan on November 16, 2000, but Lopez did not show up for that meeting.

On November 20, 2000, Espada paged Lopez again. Law enforcement agents monitored the phone call. After Lopez answered the phone, which was a cell phone, she made arrangements to meet at a McDonald's in the Bronx, New York, so that Espada could give her the money owed to her from the lost narcotics. Thereafter, Penaranda, Rodriguez, Echivaria and Parrado proceeded to McDonald's with Lopez.

According to their plan, Echivaria and Rodriguez, who were in one car, would meet with Espada, and get the money, while Penaranda, Parrado and Lopez waited in Penaranda's van parked a little bit away. After arriving at the McDonald's, and after making a series of telephone calls between the defendants, Espada and law enforcement agents, all the defendants were placed under arrest.

Adjustment for Obstruction of Justice

There is no information to suggest that the defendant impeded or obstructed justice at the time of his arrest or during the investigation or prosecution of the offense.

Adjustment for Acceptance of Responsibility

As the defendant was convicted following a trial by jury, it does not appear that he has accepted responsibility for his involvement in the offense.

The Guidelines

Offense Level

Under the November 2001 United States Sentencing Commission Guidelines Manual, the guideline for violation of 21 U.S.C. § 841(b)(1)(A) and 846 is found in § 2D1.1. The defendant's criminal activity was conspiracy to possess and distribute cocaine. There is some disagreement as to the amount of drugs for which Penaranda should be held accountable. The Presentence Report adopts the allegations of Lopez and charges Penaranda with a total of 20 kilograms of cocaine and 1,200 grams of heroin, resulting in a base offense level of 38 pursuant to the Drug Quantity Table under § 2D.1.1(c)(1). Penaranda urges that he be held responsible only for the 5 kilograms of cocaine and 1 kilogram of heroin, on which he was found guilty, resulting in a base offense level of 32, pursuant to the Drug Quantity Table under § 2D.1.1(c)(1). The government has by letter dated December 30, 2002 informed the Court that Penaranda's base offense level should instead be 34 based on the 15 or 16 kilograms of cocaine and the 200 grams of heroin that he purchased directly from Lopez and the amount of controlled substances represented by the debts owed to Lopez that Penaranda helped her collect, in the amounts of $50,000 and $150,000 to $200,000. The government is most persuasive.

Determinations of disputed facts relevant to sentencing under the Guidelines need be established "only by a preponderance of the evidence." United States v. Cusimano, 123 F.3d 83, 90 (2d Cir. 1997) (citation and internal quotation marks omitted). In drug cases, the Second Circuit has required that "specific evidence" be presented to the court in order to establish increased drug quantity. United States v. Shonubi, 103 F.3d 1085, 1089 (2d Cir. 1997). Examples of "specific evidence" include "drug records, [and] admissions or live testimony . . ." that refer to the defendant's drug transactions. Id. at 1089-90. This requirement explicitly does not change the standard of proof required for relevant conduct, nor does it question the reliability of circumstantial evidence. Id. at 1090. Evidence presented at Penaranda's trial is precisely the type of evidence that the Second Circuit has found to be reliable in making determinations of drug quantity. Drug records, telephone records, evidence of unexplained wealth, and the testimony of a live witness who has personally delivered drugs to Penaranda sufficiently establish the quantity of drugs by a preponderance of the evidence cited by the government.

Penaranda's reliance on United States v. Gigante, 94 F.3d 53, 55-56 (2d Cir. 1996) does not alter this conclusion. In Gigante, the government presented evidence in support of a sentencing enhancement based upon the defendants' uncharged participation in conspiracies to murder. Id. at 55-56. Gigante contemplates a downward departure where multiple upward enhancements for relevant, but uncharged, conduct under the Guidelines are sought. Id. at 56. Here, however, Penaranda is being sentenced for participating in a conspiracy to distribute and possess with intent to distribute in excess of 5 kilograms of cocaine and in excess of 1 kilogram of heroin, and for which a jury convicted him. Therefore, much of the evidence used in sentencing has already been proven beyond a reasonable doubt, rather than the situation in Gigante, where the court was faced with the danger of "six uncharged crimes, each of which was proven only by a bare preponderance."

Further, the fact that Lopez's testimony may have been uncorroborated does not favor Penaranda's argument. A guilty verdict may be upheld based upon testimony of one co-conspirator as long as that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt. United States v. Gordon, 987 F.2d 902, 906 (2d Cir. 1993). There is no allegation that Lopez's testimony is incredible on its face, nor that it is not capable of establishing guilt beyond a reasonable doubt.

Finally, the claims pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000) also fail. The Second Circuit has held that Apprendi does not apply where the sentence imposed does not exceed the statutory maximum for the offense of conviction. United States v. Thomas, 274 F.3d 655, 664 (2d Cir. 2001). Here, drug quantity was properly alleged in the indictment and the jury found beyond a reasonable doubt that the government had established that the conspiracy involved the minimum amounts of heroin and cocaine that increased Penaranda's statutory maximum penalty to life imprisonment. Therefore, regardless of the sentence Penaranda receives, Apprendi does not apply.

Adjusted Offense Level

In light of the foregoing, the defendant's adjusted offense level is 34 under the Guidelines.

Criminal History Category

The total of criminal history points is 0, and therefore Penaranda has a Criminal History Category of I.

Applicable Guidelines Range

The minimum term of imprisonment is ten years, pursuant to 21 U.S.C. § 841(b)(1)(A), 846. The Guidelines' range for an offender with a base offense level of 34 and a Criminal History Category of I is 151 to 188 months pursuant to § 5C1.2.

Supervised Release

A term of at least five years supervised release is required when a sentence of imprisonment is imposed pursuant to 21 U.S.C. § 841(b)(1)(A). The guideline range for a term of supervised release is five years pursuant to § 5D1.2(b).

The Sentence

In light of the foregoing, Penaranda shall be sentenced to 151 months in prison, to be followed by five years of supervised release. He will also pay a mandatory special assessment of $100, pursuant to 18 U.S.C. § 3013.

The following conditions of supervised release are mandatory: the defendant shall not (1) commit another federal, state or local crime; (2) illegally possess a controlled substance; (3) possess a firearm or destructive device; or (4) engage in unlawful use of a controlled substance. The defendant shall submit to one drug testing within fifteen (15) days of placement on probation or supervised release and at least two unscheduled drug tests thereafter, as directed by the probation officer.

The defendant will be subjected to the standard conditions of supervision (1-13). In addition, the defendant shall comply with the directives of the Immigration and Naturalization Service and the Immigration laws. The defendant is to report to the nearest Probation Office within 72 hours of release from custody and is to be supervised by the district of residence. He is to pay the United States a special assessment of $100, due immediately.

This sentence is subject to further hearing on January 21, 2003.

It is so ordered.


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