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U.S. v. HUED

SONIA HUED, Defendant.

The opinion of the court was delivered by: VICTOR MARRERO, District Judge


Defendant Sonia Hued ("Hued") pled guilty to a charge of making her apartment available for the purpose of storing and packaging heroin, in violation of 21 U.S.C. § 856. The Probation Office has recommended that Hued receive a sentence under the United States Sentencing Guidelines that reflects a total offense level of 22. Since Hued has no criminal record, the Guidelines would require her to receive a sentence of between 41 and 51 months imprisonment.

Hued now moves the Court to make certain adjustments to, and departures from, the otherwise applicable sentencing range under the Guidelines.*fn1 Her motion is granted in part. The Court concludes that Hued was a minimal participant in the heroin trafficking scheme at issue, and is thereby entitled to a four-level reduction (instead of three) in the applicable offense level. The Court also grants Hued's motion to depart on the ground that her conduct amounted to aberrant behavior. Accordingly, for Sentencing Guidelines purposes, the Court sets the offense level at 11 instead of 22.


  Hued's legal troubles arise from her on-and-off six-year romantic relationship with her co-defendant, Carlos Saltares ("Saltares"), a drug dealer.*fn3 In early 2003, Hued agreed to allow Saltares to store some of his belongings in her apartment because he had just been ousted from the apartment of another woman, the mother of Saltares's then-newborn child. Saltares stayed at Hued's apartment about once a week, and he often invited friends to the apartment during the day while Hued was working.

  In October 2003, Hued noticed drug paraphernalia such as glassines and rubber bands in the apartment. Hued claims that, until then, she did not know Saltares used or sold drugs, apart from recreational marijuana use. Although she confronted Saltares about this discovery and told him that he was no longer welcome in her apartment, she apparently relented because he continued to visit the apartment after the incident. On November 18, 2003, law enforcement officers arrested Hued and Saltares in the apartment, in which they discovered substantial amounts of heroin, a loaded firearm, and several rounds of ammunition.

  In January 2004, the United States Attorney's Office (the "Government") agreed to not prosecute Hued in exchange for her truthful cooperation with the Government. When she later admitted to violating that agreement by omitting certain details of Saltares's crimes and by contacting Saltares, the Government withdrew the agreement. Hued later pled guilty to an information charging her with making her apartment available for heroin trafficking.

  The Probation Office calculated Hued's offense level under the Sentencing Guidelines at 22, which included a three-point downward adjustment for her minor role in the offense and a two-point upward adjustment for the presence of a firearm. Hued now seeks the maximum four-point adjustment for her minimal role (instead of three), and she argues that the two-point firearm enhancement should not apply. She also moves for a downward departure on three grounds: (1) that her conduct amounted to aberrant behavior, (2) that she suffered from a diminished capacity at the time of the offense, and (3) a combination of the first two factors. II. DISCUSSION


  Under the Sentencing Guidelines, a defendant who is "plainly among the least culpable of those involved in the conduct of a group" is deemed a "minimal participant" and awarded a four-level reduction in the otherwise applicable offense level. See United States Sentencing Commission Guidelines Manual § 3B1.2(a) & cmt. n. 4 (2003) ("U.S.S.G."). A defendant who "is less culpable than most other participants, but whose role could not be described as minimal" is a "minor participant" and awarded a two-level reduction. Id. § 3B1.2(b) & cmt. n. 5. Defendants whose participation falls between "minor" and "minimal" may be awarded a three-level reduction. Id. § 3B1.2.

  In determining whether a defendant qualifies for one of these adjustments, the Court must evaluate "the nature of the defendant's relationship to other participants, the importance of the defendant's actions to the success of the venture, and the defendant's awareness of the nature and scope of the criminal enterprise." United States v. Garcia, 920 F.2d 153, 155 (2d Cir. 1990). This is a highly fact-specific inquiry in which the "dispositive consideration" is the defendant's "`culpability in the context of the facts of the case.'" United States v. Pena, 33 F.3d 2, 3 (2d Cir. 1994) (quoting Garcia, 920 F.2d at 155). The Probation Office recommends that Hued be awarded the three-level reduction, but Hued seeks the full four-level "minimal participant" adjustment.

  By all accounts, Hued's role in the drug scheme was minimal. She asserts that she was not aware of Saltares's participation in drug trafficking activities until a few weeks before her arrest; she objected to Saltares's conduct; and she did not profit or benefit at all from the conduct that served as the basis for her guilty plea. Her contribution to the drug operation — allowing Saltares to use her apartment — was entirely passive, except for the following incident. On one occasion, Saltares called Hued and told her to bring an envelope downstairs from the apartment to one of Saltares's friends, who was waiting outside. Hued did so, suspecting that the envelope contained drugs.

  The Government's objection to the "minimal participant" reduction hinges upon that transaction. Under a separate Guideline provision applicable to 21 U.S.C. § 856, a defendant who "had no participation in the underlying controlled substance offense other than allowing use of the premises," see U.S.S.G. § 2D1.8(a) (2) (emphasis added), may be awarded a four-level reduction in lieu of any minor or mitigating role adjustments that would otherwise be available under U.S.S.G. § 3B1.2. See id. § 2D1.8(b) (1) ("If the offense level is determined under subsection [2D1.8] (a) (2), do not apply an adjustment under § 3B1.2 (Mitigating Role).").

  The Government argues that the envelope transfer amounted to at least some participation beyond making the apartment available, thus disqualifying Hued from eligibility for the four-level non-participation reduction available under § 2D1.8 (a) (2). The Government concludes that the Guidelines could not have intended for a so-called "stash house" defendant who failed to meet the criteria for non-participation under § 2D1.8 (a) (2) to nevertheless be eligible for an identical four-level reduction for being a "minimal participant" under § 3B1.2 (a). Otherwise, the argument goes, the non-participation ...

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