The opinion of the court was delivered by: GERARD E. LYNCH, District Judge
The three defendants in this case pled guilty to charges including
conspiracy to import cocaine into the United States, 21 U.S.C. § 963,
and use of a firearm during and in relation to a drug trafficking crime,
18 U.S.C. § 924(c)(1)(A). Because the conspiracy involved in excess
of 150 kilograms of cocaine, a fact not disputed by the defendants, the
U.S. Sentencing Guidelines ("U.S.S.G." or "Guidelines") prescribe a base
offense level of 38 for each defendant.*fn1 U.S.S.G. § 2D1.1(c)(1). Indeed, it is undisputed that the defendants were arrested in Belize in
possession of some 1500 kilograms of cocaine destined for the U.S.
market. The parties agreed, however, to leave several other issues
relevant to sentencing for resolution after an evidentiary hearing, see
United States v. Fatico, 603 F.2d 1053 (2d Cir. 1979);
United States v. Fatico, 579 F.2d 707 (2d Cir. 1978), which
the Court held on March 3 and 4, 2004. This opinion sets forth the
factual findings and legal conclusions required to arrive at appropriate
sentences for each defendant.
The Government argues that Torres-Teyer should receive a four-level
"aggravating role" adjustment because he acted as an "organizer or leader
of a criminal activity that involved five or more participants or was
otherwise extensive." U.S.S.G. § 3B1.1(a). To impose this adjustment,
the Court must find "(i) that the defendant was `an organizer or leader,'
and (ii) that the criminal activity either `involved five or more
participants' or `was otherwise extensive.'" United States v.
Zagari, 111 F.3d 307, 330 (2d Cir. 1997) (internal quotation marks
omitted). The evidence overwhelmingly, by far more than a preponderance,
justifies these findings.
First, while the Government need not establish that Torres-Teyer
managed five or more participants (evidence of "otherwise extensive"
criminal activity also suffices), United States v. Zichettello,
208 F.3d 72, 107 (2d Cir. 2000), it cannot be disputed that the criminal
activity here involved more than five people. Counting only those
directly supervised by Torres-Teyer, the participants included Liston
McCord, codefendants Carrasco. and Aguirre, the crew of Mexican laborers or seamen who worked with McCord to transfer cocaine from
large to small boats (e.g., Michael, Chilango, Alfredo, Gordo)
(Tr. 111, 122-23, 126, 133), the sea captains who responded to
Torres-Teyer's orders, and assorted pistoleros and laborers.
Second, Torres-Teyer unquestionably acted as an organizer and leader of
the conspiracy. The evidence seized from his apartment in Belize, where
authorities found the 1500 kilograms of cocaine, included a black folder
containing copies of facsimile communications giving directives to boat
captains and others regarding the transport of cocaine from Colombia to
Mexico. by sea. That Torres-Teyer wrote these facsimile communications is
clear: Belizean authorities found them in his apartment; according to
Liston McCord, a cooperating witness whom the Court finds highly
credible,*fn2 the handwriting matches that of Torres-Teyer (Tr. 163,
169); and they were signed by "Oso," which in Spanish means "bear," a
nickname for Torres-Teyer. (Id. 123-24.) The content of the
communications also confirms that he wrote them. In one, the author
advises coconspirators that he has assumed the new identity "Jorge Carlos
Moreno" and obtained a death certificate for "Jorge Torres-T." (GX 71.)
In another, he instructs members of the conspiracy how to find the
apartment complex where he then lived and to ask for Carlos Moreno, his assumed identity in Belize. (GX 81.) Jorge Carlos Moreno is also
the name that Torres-Teyer gave to the Belizean police who stopped him
for driving in the wrong direction on a one-way street, the incident that
led to the discovery of the 1500 kilograms of cocaine and the
apprehension of codefendants Carrasco. and Aguirre. (Torres-Teyer PSR
¶ 12.) The inference is inescapable that Torres-Teyer authored
numerous directives to a large number of conspirators.
Moreover, McCord testified that Torres-Teyer recruited him and gave him
orders about the transportation of more than a dozen cocaine shipments,
generally in amounts of at least 1500 kilograms. (Tr. 93-98, 125-26.) The
totality of McCord's testimony made absolutely clear that Torres-Teyer
organized and planned these shipments, and the seized records not only
corroborate that testimony they independently establish that he
played exactly this leadership role.
At a minimum, the evidence therefore establishes that Torres-Teyer was
a manager or supervisor of the narcotics organization in which he
participated. See United States v. Payne, 63 F.3d 1200, 1212
(2d Cir. 1995) ("A defendant acts as a manager or supervisor of a
criminal enterprise involving at least five participants if he exercises
some degree of control over others involved in the commission of the
offense or plays a significant role in the decision to recruit or to
supervise lower-level participants.") (internal citations, brackets and
quotation marks omitted). Distinguishing a "manager or supervisor,"
U.S.S.G. § 3B1.1(b), from an "organizer or leader," id.
§ 3B1.1 (a), may well be more of an art than a science. Concededly,
Torres-Teyer was not the leader of the entire narcotics trafficking
conspiracy. The evidence shows that he reported to Alcides Ramon Magana
and Albion Quintero Meraz, persons whom Special Agent Matthew John
O'Brien of the Drug Enforcement Administration ("DEA") described as
"heads of the organization" (Tr. 70), and superiors at times sent others
to check up on Torres-Teyer. (Id. 176-77.) But for Torres-Teyer to qualify as an organizer or leader, it is not
necessary that he have been at the pinnacle of authority within the
hierarchy of the narcotics trafficking organization, or that he have
masterminded the entire conspiracy. See United States v.
DeRiggi, 72 F.3d 7, 8 (2d Cir. 1995); United States v.
Garcia, 936 F.2d 648, 656 (2d Cir. 1991); see also
U.S.S.G. § 3B1.1, Application Note 4; United States v.
Beaulieau, 959 F.2d 375, 379-80 (2d Cir. 1992) (canvassing factors
to be considered in determining whether defendant qualifies as an
"organizer or leader"). Torres-Teyer quite literally organized the
Belizean trans-shipment operation, which itself qualifies as a highly
complex criminal activity and a major part of the overall importation
scheme. He did not act as a mere manager or supervisor, but as a
high-level operative who recruited, supervised, and directed dozens of
individuals and organized their activity. (G. Br. 15-19.) See
United States v. Si Lu Tian, 339 F.3d 143, 156-58 (2d Cir. 2003).
Moreover, some of those whom Torres-Teyer supervised, such as McCord and
the sea captains, themselves played significant roles in the conspiracy
and enjoyed supervisory authority over other coconspirators.
Torres-Teyer's level of responsibility, and the number of people he
organized and directed, dwarfs that of others who have received a
four-level enhancement for being an organizer or leader. See, e.g.,
United States v. Napoli, 179 F.3d 1, 14 (2d Cir 1999); United
States v. Rodriguez-Gonzalez, 899 F.2d 177, 183 (2d Cir. 1990).
Accordingly, the Court finds an "aggravating role" enhancement for
being an "organizer or leader" warranted. This adjustment brings
Torres-Teyer's offense level to 42. B. Use of Airplane
The Government's letter pursuant to United States v.
Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991), contemplated, and the
Probation Department recommended, a two-level enhancement for use of an
aircraft in connection with narcotics trafficking. (Torres-Teyer PSR
¶¶ 7(c), 41.) U.S.S.G. § 2D1.1(b)(2)(A). But the Government
introduced no evidence at the hearing regarding use of an airplane, and
in its post-hearing submission, did not argue that an enhancement for
such use should be applied. On one occasion, Torres-Teyer and McCord
apparently arranged for the use of an airstrip for a projected transfer
of drugs by air, after the failure of a trans-shipment by boat due to a
hurricane. (Tr. 184-86; GX 69.) But no evidence suggests that this plot
succeeded. Indeed, it seems that this shipment is the one that Belizean
authorities eventually seized, resulting in the defendants' arrest.
Accordingly, this enhancement will not be applied.
C. Acceptance of Responsibility and Obstruction of Justice
Torres-Teyer pled guilty to the entire indictment. He acknowledged his
guilt for both the conspiracy to import and distribute cocaine and the
use of firearms in furtherance of that scheme. He is therefore
presumptively entitled to a downward adjustment for acceptance of
responsibility. U.S.S.G. § 3E1.1(a). Furthermore, as to Torres-Teyer,
unlike his codefendants, the Government does not dispute that he timely
notified it of his intention to plead guilty, sparing both the Court and
the Government the time and resources necessary to prepare for trial.
Accordingly, if he qualifies for acceptance of responsibility, he would
receive another one-level reduction pursuant to U.S.S.G. § 3E1.1(b).
The Government contends and the PSR recommends, however, that credit
for acceptance of responsibility should be denied and, instead, a
two-level enhancement for obstruction of justice imposed. See U.S.S.G. § 3C1.1. The Government
cites several alleged plots by Torres-Teyer to intimidate witnesses,
escape from custody, and proffer false cooperation in an effort to obtain
a reduction of his sentence. (G. Br. 16.) Only one of these alleged plots
was adequately proved.
The PSR's recommendation relies on a purported effort by Torres-Teyer
to bribe Belizean officials to refuse to extradite him to the United
States. (Torres-Teyer PSR ¶ 35, 46.) McCord's testimony, as well as
documentary evidence introduced by the Government, amply established the
general nature of this alleged scheme. (Tr. 194-97; GX 251-62.) According
to the plan, Carrasco. and Aguirre would accept full responsibility for
the cocaine seized in Torres-Teyer's apartment in exchange for $100,000,
as well as a car and a house, for each of them, while Torres-Teyer,
McCord, and Torres-Teyer's girlfriend would be exonerated in exchange for
the payment of a $250,000 bribe to the chief magistrate in charge of the
No evidence, however, establishes that the magistrate, the Honorable
Herbert Lord, in fact received such a bribe or even agreed to the scheme;
indeed, Torres-Teyer provided an affidavit from Magistrate Lord in which
Lord states that "[a]t no time while the case was before me in
Magistrate's Court did anyone offer a bribe for me to release any of the
. . . defendants on bail or to dismiss any of the charges against
[them]." (Lord Aff. ¶ 5.) Moreover, the witness Errol Gentle, a
Belizean prison official, testified to Magistrate Lord's good reputation.
(Tr. 315-16.) Finally, McCord had no first-hand knowledge that any bribe
had been paid, nor could he have.
At the same time, notes written by Torres-Teyer during his imprisonment
with McCord in Belize strongly corroborate McCord's account of an
attempt to arrange such a bribe. These notes establish, through Torres-Teyer's own words, that he intended to
bribe Carrasco. and Aguirre to provide false testimony (GX 253-55) and "to
pay off the judge," and that he had arranged to make available the money
to bribe them. (GX 255.) The Court therefore finds that Torres-Teyer
willfully attempted to obstruct justice during the course of his
prosecution for this offense.
This conduct, however, raises an issue of law regarding § 3C1.1's
application. While the PSR characterizes Torres-Teyer's bribery attempt
as an effort to avoid extradition to the United States, the evidence
suggests that the plot actually aimed to secure an acquittal on the
charges brought against him in Belize. The § 3C1.1 enhancement
applies to obstructive conduct "related to (i) the defendant's offense of
conviction and any relevant conduct; or (ii) a closely related offense."
Because the conduct for which Belize initiated Torres-Teyer's prosecution
constitutes a part of his offense of conviction in the United States, or
at the very least "a closely related offense," the enhancement would
appear literally to apply. But the question remains whether the bribery
plot aimed to obstruct justice in the United States, and if it did not,
whether § 3C1.1 applies where a defendant attempts to obstruct a
foreign prosecution for an offense that is relevant conduct or an offense
closely related to the offense of conviction in the United States.
No evidence suggests that Torres-Teyer's bribery scheme aimed to avoid
extradition. To the contrary, affirmative evidence indicates that Torres
thought that the United States either could not or would not secure his
extradition in any event. (GX 260.) As a matter of law, however, the
Court sees no basis to distinguish between attempts to obstruct Belizean
and United States justice in connection with this prosecution, at least
on the facts of this case.
First, although no evidence suggests that Torres-Teyer's plot aimed
specifically to avoid extradition to the United States, Torres-Teyer
unquestionably remained concerned that he would be held accountable by the United States for his crimes. Government
Exhibit 260 establishes that although Torres-Teyer did not expect to be
extradited, he nevertheless recognized the dangers posed by the DEA and
the possibility of prosecution in the United States for importing cocaine
into this country. Moreover, it is clear that Torres-Teyer's and McCord's
release from the Belize prison would have obstructed the investigation of
Torres-Teyer by United States authorities and, indeed, this prosecution.
Perhaps in some circumstances, in some countries, efforts to take
advantage of an already corrupt system of justice might not qualify for
the § 3C1.1 enhancement. But on the facts of this case, where the
investigation and prosecution in Belize, on the one hand, and
Torres-Teyer's investigation by the DEA and other United States
authorities, on the other, were closely intertwined, Torres-Teyer's
effort to frustrate the Belizean prosecution would reasonably be expected
to have an effect on the prosecution here.*fn3 Accordingly, the
enhancement for obstruction will be applied.
The Government argues, as the PSR recommends, that application of the
§ 3C1.1 enhancement automatically negates Torres-Teyer's entitlement
to credit for acceptance of responsibility. (G. Br. 34; Torres-Teyer PSR
¶ 46.) Both the Government and the PSR cite Application Note 4 to
U.S.S.G. § 3E1.1, which states that "[c]onduct resulting in an
enhancement under § 3C1.1 . . . ordinarily indicates that the
defendant has not accepted responsibility for his criminal conduct. There
may, however, be extraordinary cases in which adjustments under both
§§ 3C1.1 and 3E1.1 may apply." See, e.g.,
United States v. Restrepo, 936 F.2d 661, 669 (2d Cir. 1991)
(affirming sentencing court's application of both § 3C1.1 and
The Second Circuit has not yet articulated a standard or set of
guidelines to determine whether a case qualifies as "extraordinary"
within the meaning of Application Note 4. Two views predominate in other
circuits. See United States v. Salazar-Samaniega,
361 F.3d 1271, 1279-80 (10th Cir. 2004) (canvassing each). In United States
v. Hopper, 27 F.3d 378
(9th Cir. 1994), the Ninth Circuit held that
the relevant inquiry for determining if a case is
an extraordinary case within the meaning of
Application Note 4 is whether the defendant's
obstructive conduct is not inconsistent
with the defendant's acceptance of responsibility.
Cases in which obstruction is not inconsistent
with an acceptance of responsibility arise when a
defendant, although initially attempting to
conceal the crime, eventually accepts
responsibility for the crime and abandons all
attempts to obstruct justice.
Id. at 383 (emphasis in original); accord,
United States v. Gregory, 315 F.3d 637, 640 (6th Cir. 2003);
but see United States v. Buckley, 192 F.3d 708
, 711 (7th
Cir. 1999) (rejecting Hopper in part because "[t]he fact
that a defendant having done everything he could to obstruct justice
runs out of tricks, throws in the towel, and pleads guilty does not
make him a prime candidate for rehabilitation").
By contrast, in United States v. Honken, 184 F.3d 961 (8th
Cir. 1999), the Eighth Circuit opined that sentencing courts should
the totality of the circumstances, including the
nature of the [defendant]'s obstructive conduct
and the degree of [defendant]'s acceptance of
responsibility. Among other things, the district
court should . . . consider whether, for
example, the obstruction of justice was an
isolated incident early in the investigation or an
on-going effort to obstruct the prosecution. It
should . . . consider whether [defendant]
voluntarily terminated his obstructive conduct, or
whether the conduct was stopped involuntarily by