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April 17, 2003


The opinion of the court was delivered by: Gerard E. Lynch, United States District Judge


Felix Perez, a 23-year old man with no prior criminal convictions, stands before the Court for sentencing, following his plea of guilty to one count of conspiracy to distribute more than 50 grams of crack, in violation of 21 U.S.C. § 846 and 841(b)(1)(A). The case presents another variation on the difficult sentencing issues presented by the interaction among the extremely severe sentences imposed on narcotics offenders under the Sentencing Guidelines, the heavy reliance of the Guidelines on drug quantity as a dominant sentencing factor, and the recent effort of the Sentencing Commission to ameliorate those factors by capping the maximum sentence for minor participants in large drug trafficking conspiracies. See United States v. Ruiz, No. 01 Civ. 864 (GEL), 2002 WL 31730991 (S.D.N.Y. Nov. 27, 2002). In this case, these factors are further complicated by the especially draconian penalties for distribution of crack cocaine, the so-called "safety valve" that mitigates punishment in certain circumstances in narcotics cases, and the disparities that can be created when participants in the same criminal transactions are sentenced at different times based on different information. As a consequence of those complexities, the Court has before it markedly different calculations of the applicable guideline sentence by the defendant, the Probation Office, and the Government, notwithstanding that all parties agree on the essential facts: that Perez was a salaried functionary of a street-level crack distribution organization, working as a sometime lookout and sometime delivery boy. The Probation Office calculates the sentencing range as 120-135 months (a minimum often years); the Government, after initially suggesting that the appropriate sentencing range could be as high as 235-293 months (a minimum of nearly twenty years), has now receded to the view that the appropriate range is 151-188 months (a minimum of twelve and a half years); and the defendant argues that the proper sentencing range is 46-57 months (a minimum of under four years). To understand this extraordinary variation in the calculations. it is necessary to understand the facts of the case, and the interaction of the different statutory and guideline elements applicable to them.


The Conduct Underlying the Conviction

This case arises from a fairly routine narcotics investigation. In the absence of a trial or hearing, the Court accepts for present purposes the facts recited in the Pre-Sentence Report ("PSR") of the Probation Office, which are (at least in broad outline) accepted by both sides.

On November 8, 2000, in furtherance of an investigation into trafficking in crack cocaine in the area of West 138th Street in Manhattan, an undercover New York City police officer purchased approximately fifteen grams of crack for $435. The officer gave the money to an individual who passed it on to Porfirio Delarosa, who was eventually indicted in this case. Ramon Garcia, another defendant in this case, then appeared with the drugs, which were passed to the officer. On November 19, the officer purchased another 15 grams of crack from Delarosa and Garcia for $390, and on November 26, the officer returned and made another 15-gram purchase, from Garcia alone, also for $390. On December 13, 2000, the officer returned to the same location and agreed with Garcia and another individual to purchase 18 grams of crack for $470. On this occasion, the defendant Felix Perez appeared for the first time, delivering the drugs to the salesmen who passed it on to the undercover officer.

Five additional transactions took place between December 28, 2000, and April 13, 2001. In each case the pattern was similar: An undercover officer negotiated a purchase with one or two conspirators, and another conspirator would retrieve the agreed amount of narcotics from a secret location and provide it to the seller(s), who passed it to the undercover in exchange for the agreed sum of money. Occasionally, another conspirator would wait with the officer while the drugs were being retrieved, or accompany the officer to a different location, where the transaction would be completed. A total of nine individuals played these various roles. Perez was personally involved in four of the eight total transactions: In three, he delivered the drugs and/or accompanied the purchaser to the place where the drugs were delivered, and in one, he was observed exchanging money with Delarosa and other conspirators who had engaged in the actual negotiations and delivery with the undercover officer.

These transactions all involved quantities in the same general range: much too large to be retail transactions with drug users, who typically purchase crack in $5 or $10 pieces, but hardly sales at the major wholesale level. In all, the undercover officers purchased 180 grams of crack cocaine for a total of $5535.

Judicial Proceedings

On July 6, 2001, Perez was arrested, along with Delarosa and Garcia. The record does not reflect whether the other individuals involved in the eight undercover transactions were ever identified by the police, arrested, or prosecuted. On August 2, 2001, the three defendants were charged in the instant federal indictment, charging them with conspiring between November 8, 2000, and April 13, 2001, to distribute in excess of 50 grams of crack cocaine. All three defendants pleaded guilty to conspiring with each other and with others.

Delarosa, a 43-year old man, was sentenced principally to 121 months in prison. The undisputed guideline calculation, set forth in a plea agreement between the parties, confirmed by the Probation Office, and independently found by the Court, was that trafficking in 180 grams of crack results in a base offense level of 34, reduced by three levels on account of Delarosa's timely guilty plea. Because a prior narcotics conviction placed him in criminal category I, the applicable guideline range was 121-151 months. The Court imposed a sentence at the bottom of the range, finding that a ten-year sentence was adequate to serve the purposes of deterrence and protection of the public.

Garcia, age 42, had no prior criminal convictions. Although his base offense level was the same as Delarosa's, having participated in the same conspiracy, he was able to benefit, as a nonviolent offender without a prior record, from the "safety valve" provision of 18 U.S.C. § 3553 (f) and U.S.S.G. § 5C1.2, by providing the government with "all information and evidence [he] has concerning [the conspiracy]," even though that information was insufficiently helpful to warrant a departure for providing substantial assistance in the prosecution of others. See U.S.S.G. § 5K1.1. The "safety valve" rule not only exempted Garcia from the statutory ten-year minimum sentence, but also provided him with an additional two-level reduction pursuant to U.S.S.G. § 2D1.1(b)(6). At the resulting level 29 and criminal history category I, Garcia's sentencing range was 87-108 months, and he too was sentenced at the bottom of the range.

Both Delarosa and Garcia negotiated plea agreements with the Government, pursuant to which the Government stipulated to the calculations set forth above, calculations with which the Probation Office and the Court agreed. Perez took a slightly different approach. He pled guilty without agreeing with the Government on a stipulated guideline calculation, apparently hoping to seek a more favorable calculation than the Government was prepared to accept, and to preserve his right to seek a downward departure, which the United States Attorney in this District requires to be waived as part of its standard plea agreement. The road to the plea was bumpy in other ways, as well. Perez did not plead guilty early enough to save the Government substantial resources; he pled on the morning his trial had been scheduled to begin. Moreover, he had failed to appear on two separate occasions during the preceding week, when the Court had scheduled proceedings, at Perez's request, to consider motions to change his plea to guilty. Eventually, however, Perez did plead guilty.

Sentencing was adjourned repeatedly, first at the request of the overburdened Probation Department, on one occasion at the Government's request, but mostly because the defendant represented that he needed more time to gather materials for a departure request. (No doubt the pending effective date of the guideline amendment capping the base offense level for minor participants, see U.S.S.G. § 2D1.1 (a)(3), provided a disincentive to expedite this investigation.) At any rate, Perez, like Garcia, sought to qualify for the "safety valve" by meeting with the Government to disclose his knowledge of the operations of the crack conspiracy.

Perez's Safety Valve Proffer

Perez's disclosures to the Government turned out to be a mixed blessing for him. On the one hand, the Government agrees that Perez's proffer was honest and complete, and entitles him to the benefits of the two-level downward adjustment and dispensation from the mandatory minimum. On the other hand, Perez's disclosures revealed that Delarosa's drug organization was more extensive and successful than the Government had previously been able to prove, and the Government accordingly argues that the facts he disclosed rendered him susceptible to significantly higher penalties than he faced at the outset.

According to the Government, Perez stated that he had worked for Delarosa as a salaried operative from December 1999 until his arrest in July 2001, and that during those 18 months, the organization distributed approximately 1.5 kilograms of crack per week. Moreover, according to the Government, Perez also stated that during this period he resided with Delarosa in an apartment where drugs were kept, and that Delarosa also kept a gun there. The Government contends that Perez's sentencing guidelines calculation should take these facts into account as relevant conduct, and that these facts vastly increase the applicable sentence. of course, if the facts disclosed by Perez had been known at the time of Delarosa's sentencing, the Government might have sought a higher sentence in his case as well, but Delarosa's sentence is already final. The Government thus suggests that Perez's honesty in proffering his drug involvement has backfired, producing not only a higher sentence than he would otherwise have received, but also a higher sentence than his boss Delarosa himself received, in substantial part based on conduct engaged in not by Perez himself, but by Delarosa.

The Various Guideline Calculations

1. The Probation Office

The Probation Office originally reported to the Court that Perez should be sentenced at level 31 and criminal history category I, which results in a range of 108-135 months — except that, because of the mandatory ten-year minimum sentence imposed by statute, see 21 U.S.C. § 841 (b)(1)(A)(iii), the effective range would be 120-135 months. But this original estimate has been doubly superseded by events. First, it appeared on the face of the report that the Probation Office's actual calculation was level 33, not level 31; apparently, the final conclusions and recommendations of the Probation Office overlooked a two-level addition for obstruction of justice, which the Probation Office found appropriate and included in its detailed findings earlier in the PSR. Second, after the PSR was prepared, the Government acknowledged that Perez had become eligible for the safety valve reduction.

Thus, applying the actual calculations in the PSR, rather than its erroneous ultimate recommendation, and giving Perez credit for a safety valve reduction, the Probation Office's calculations run as follows:

• A base offense level of 34, the same base from which co-defendants Delarosa and Garcia began.
• An upward adjustment of two levels for obstruction of justice, because of Perez's failure to appear for his scheduled pleas in the first week of April, 2002.

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