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August 29, 2003


The opinion of the court was delivered by: Laura Taylor Swain, District Judge


Jorge Briceno ("Briceno" or "Defendant") plead guilty on August 12, 2002, to a one-count indictment charging him and his co-defendant with conspiracy to distribute and possess with intent to distribute 100 grams and more of mixtures and substances containing a detectable amount of heroin, in violation of 21 U.S.C. § 812, 841(a)(1) and 841(b)(1)(B). His sentencing proceeding commenced with a Fatico evidentiary hearing held over six days between January 30 and April 16, 2003. The parties thereafter filed further briefs and the Court heard oral argument on August 12, 2003, concerning the sentencing issues addressed in this Memorandum Opinion.

Briceno seeks judicial determinations that (1) he is eligible under the "safety valve" provisions of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 to be sentenced without regard to the ordinary five-year statutory minimum sentence for his crime of conviction,*fn1 (2) a reduction in the offense level for minor participant status is appropriate, and (3) he is entitled to a reduction in the offense level for acceptance of responsibility. He further seeks a downward departure from [ Page 2]

the ordinary sentencing range under the Sentencing Guidelines on the ground of aberrant behavior, and argues that the Government is estopped from opposing the acceptance of responsibility reduction and from seeking any increase in the offense level for obstruction of justice. The Government disputes Briceno's eligibility for safety valve treatment and the propriety of a minor participant role adjustment, contends that the acceptance of responsibility reduction should be denied in light of what it asserts was false testimony given at the Fatico hearing, and further asserts that an obstruction of justice increase in the offense level is appropriate by reason of that testimony. The Court has considered carefully all of the evidence and arguments presented in connection with the Fatico hearing and has read thoroughly all of the parties' related written submissions. This Memorandum Opinion explains the Court's resolution of these disputed issues.


At the Fatico hearing Briceno, who is a floor refinisher and repairer of floor refinishing equipment by trade,*fn2 testified in substance as to the offense conduct that on September 21, 2001, the date of his arrest, he responded affirmatively to an invitation from his co-defendant friend and colleague (one "Mincho") to go out for the evening with two women. Tr. 1 at 33-35. When Briceno, who was driving his own car (Tr. 1 at 82), picked Mincho up in Manhattan, Mincho instructed him to drive to Queens to pick up a female friend and to pick up drugs. Tr. 1 at 35-36, 81. Briceno at first refused, and then agreed to accompany Mincho in return for $800.00. (Tr. 1 at 36.) The two proceeded to a house in Queens, where they were [ Page 3]

given a plastic bag containing a quantity of heroin. Tr. 1 at 36-38. Briceno then agreed to drive Mincho and the heroin to another location four or five blocks away. Tr. 1 at 87-88. On the way to the second location, Briceno was troubled by a strong odor emanating from the package; Mincho explained that the package stank because the heroin had been carried by a person who had swallowed it. Mincho indicated that the stench could be reduced by wrapping the heroin in tape, and instructed Briceno to drive to a nearby store to purchase masking tape. Tr. 1 at 39, 90. Briceno did so, returned to the car, sat in the back seat and, following Mincho's instructions, began to wrap the heroin, which was in small packages, into tape-covered bundles of ten. Briceno and Mincho were arrested while engaged in this activity. Tr. 1 at 40, 91. Briceno testified that he had never before been involved in the sale and distribution of narcotics (Tr. 1 at 31, 50), although he had purchased cocaine in the past for personal use. Tr. 1 at 51-52.

Briceno, a married man whose wife and children were living in Colombia at the time of the arrest, also testified that he had never sought to go out with other women in that manner before the date of the arrest. Tr. 1 at 66-68. He further testified that, at the time he agreed to go out with Mincho and the women, he had held a ticket to fly to Colombia on September 22 for the purpose of visiting his wife and family. According to Defendant, he would have flown into Bogota or Cali, it would have taken him a week to travel from there to the town where his family reside, and he was nonetheless booked to return to the United States a week after his arrival in Colombia. He represented that the return booking was merely a holding date that he would have extended after his arrival in Colombia. Tr. 1 at 178-79, 202-204, 207.

Briceno further testified that a number of his cellular telephone conversations, intercepts of which were received in evidence, were about floor sanding supplies or equipment, [ Page 4]

including a number of conversations on September 18 and 19, 2001, that were purportedly in aid of Briceno's agreement to obtain and rent several "edging" machines at high prices to a person who owned a club and had decided to go into the flooring business in or around September 2001.*fn3 The Government contends that the conversations were in reality coded conversations concerning drug trafficking, and introduced testimony from a DEA agent regarding the communications practices of participants in the drug trade and the post-September 11, 2001 drug market in New York City. See Tr. 1 at 158-168. Briceno also testified to conducting on September 18, 2001, a cellular phone conversation concerning the edging machine transaction from a particular location. Other evidence indicated that Government surveillance placed him meeting at a different location at that time with Mincho and another individual and that both Mincho and the other individual had previously been convicted of drug trafficking offenses.*fn4 Briceno asserts that he was merely mistaken as to his own location at the time of the call and that the meeting was an innocent one; the Government contends that he lied deliberately.

Briceno and other defense witnesses testified that certain terms (e.g., "fish ones," "blue ones") that the Government contends were used as terms for drugs are used at Briceno's workplace to refer to types of floor sanding equipment and related supplies. [ Page 5]


Defendant tendered his guilty plea in this case without the benefit of a plea agreement. Rather, pursuant to the suggestion of the Court of Appeals in United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991), the Government provided the Defendant with a letter setting forth the Government's view of the sentencing guideline calculations that it believed would apply in the event of a conviction. The letter, which was dated June 28, 2002, was delivered to Briceno's counsel prior to the guilty plea and in advance of a proffer session relating to Defendant's safety valve application. It included provision for a downward offense level adjustment to reflect acceptance of responsibility. At the July 17, 2002 proffer session, Briceno related an account of his activities in connection with the offense that was substantially consistent with his testimony at the Fatico hearing. (See Gov't Ex. 6.) Defendant's counsel asserts that, following the proffer session and before the plea was tendered to the Court, the Government confirmed that the Pimentel letter continued to reflect accurately the Government's view of the appropriate Sentencing Guidelines calculation.

Defendant contends that the inclusion of a provision for an acceptance of responsibility reduction and reiteration of that Guidelines computation position following the proffer session estop the Government from objecting to credit for acceptance of responsibility and from seeking an upward adjustment for obstruction of justice. Defendant's position is ill-founded. The Pimentel letter does not purport to function as an agreement between the Government and any party, specifically stating ...

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