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May 3, 2004.


The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge



An extended Fatico hearing was held in this case beginning on January 26, 2004. Later sessions were held on February 3, 2004, February 9, 2004 and March 8, 2004. The hearing concluded on March 17, 2004. The purpose of the hearing was to determine how much heroin is attributable to Mr. Hernandez in connection with his involvement in the conspiracy to which he pleaded guilty.


  The defendant was indicted on January 26, 1999. The investigation leading to the Indictment was run jointly by the Drug Enforcement Administration and the New York City Police Department. It uncovered the existence of a narcotics trafficking group ("the Group") that revolved around Eddy Sanchez, a/k/a "Chelo," a wholesale cocaine and heroin supplier. The Group operated primarily in the area of West Fordham Road, Bronx, New York. It also had customers in Rhode Island and other places.

  In 1999, fourteen members of the Group including Sanchez were arrested shortly after the original Indictment was filed. In June 1999, the present superseding Indictment S4 99 Cr. 73 (the "Indictment") was filed, charging fifteen defendants with conspiring to distribute narcotics; certain defendants were also charged with substantive narcotics distribution counts. Sylvio Hernandez, who was charged in Count One of the Indictment with conspiring to distribute narcotics, was a fugitive until January 2001.

  Twelve of the defendants charged in the Indictment eventually pled guilty, including Sanchez, who entered into a cooperation agreement with the Government. Two defendants were convicted after a jury trial, at which Sanchez testified. The other defendant, Christopher Vargas-Vasquez, died before the outstanding charges against him were resolved.

  Defendant's Guilty Plea

  On March 11, 2002, Mr. Hernandez pleaded guilty to Count One of this Indictment before the late Judge Allen G. Schwartz. At the outset of the plea proceeding, Hernandez was sworn and allocated through a Spanish-language interpreter. Hernandez acknowledged to Judge Schwartz that he understood that he had "sworn to tell the truth." (GX 5 p. 3).*fn1 Judge Schwartz told Hernandez that he was "required to respond truthfully" to the Court's questions, and that a failure to do so could subject him to a perjury charge; Hernandez again stated that he understood his obligation to tell the truth. (GX 5 p. 3).

  The Court then conducted an inquiry of Hernandez to determine whether he was competent to plead guilty, reviewed the rights he would be giving up by pleading guilty, and advised Hernandez of the statutory penalties (including the ten-year mandatory minimum term of imprisonment) and possible sentencing range under the United States Sentencing Guidelines. Hernandez indicated that he understood his rights and the potential penalties, but still wished to plead guilty. (GX 5 p. 4-15).

  Judge Schwartz then asked Hernandez to explain what he did that made him guilty of the offense charged in the Indictment. Hernandez stated:
Between May of `98 and January of '99, I came to an agreement with Sandra [sic] Ospina*fn2 and others to distribute over a kilo of heroin but under three kilos. I knew that that was against the law. And that took place in the Bronx.
(GX 5 p. 17).

  Judge Schwartz accepted Hernandez' plea finding that he was "fully competent and capab[le] of entering an informed plea and that his plea [was] voluntary and knowing and [was] supported by an independent basis in fact containing each and every element of the offense charged in Count 1 of the indictment." Id.

  Hernandez later moved to withdraw his guilty plea and to attack the constitutionality of his earlier felony drug conviction on various grounds. He claimed that his attorneys had pressured and coerced him to plead guilty by informing him that if he proceeded to trial and was convicted, he potentially faced a sentence after trial of twenty years' imprisonment because of the Government's intention to file a prior felony information. He also claimed that, despite his guilty plea to Count One of the Indictment, and his statement under oath during his plea allocution that he had conspired to distribute between one and three kilograms of heroin, he in fact was responsible for only 510 grams of heroin. Specifically, Hernandez admitted that he distributed 150 grams of heroin to two co-defendants named in the Indictment, Jose Diaz and Facundo Aquino-Delacruz. (GX 20 p. 2, ¶¶ 8).*fn3 Hernandez further admitted that he had obtained 350 grams of heroin from Ospina which he and Sanchez had distributed (along with another 10 grams of heroin that Sanchez had obtained from another source) to various individuals. (GX 20 p. 1-2, ¶¶ 1, 3, 6-7).

  By Opinion and Order on September 18, 2002, Judge Schwartz denied Hernandez' motions in full. He found that Hernandez had not been improperly coerced or pressured to plead guilty to Count I of the Indictment, and denied Hernandez' motion to withdraw the guilty plea. United States v. ...

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