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May 11, 2005.


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


On December 3, 2004, defendant Pietro Cosimi ("Cosimi") pleaded guilty to Counts One and Three of Indictment S6 03 Cr. 514. Count One charged Cosimi under 21 U.S.C. § 846 for participating in a conspiracy to distribute a controlled substance known as MDMA or "Ecstacy," while Count Three accused him of possessing Ecstacy with intent to distribute it in violation of 21 U.S.C. § 841(b)(1)(c).

For the reasons stated on the record at the sentencing of Cosimi before the Court on April 29, 2005, as further elaborated upon in the statement of the Court set forth below, the Government's motion to find Cosimi in breach of his plea agreement, adjourn Cosimi's sentencing, and hold a Fatico hearing*fn1 in order to establish facts that would enhance the sentence recommended by the Sentencing Guidelines is denied. The Court sentences Cosimi to fifty-seven (57) months imprisonment upon consideration of the Sentencing Guidelines and the other sentencing factors listed in 18 U.S.C. § 3553(a).



  Pietro Cosimi ("Cosimi") is one of seventeen defendants who have been indicted for their alleged participation in a global conspiracy to smuggle the illegal drug 3, 4-methylenedioxymethamphetamine ("MDMA"), commonly known as "Ecstacy," into the United States. As alleged in the indictment, members of the conspiracy who were based in the Dominican Republic recruited individuals of European extraction, including Cosimi, who is an Italian citizen, to travel to the Netherlands to obtain Ecstacy. Once in the Netherlands, European natives such as Cosimi were met by local sources of supply, provided with suitcases in which tens of thousands of Ecstacy pills weighing several kilograms were secreted, and given airplane tickets to cities along the East Coast of the United States. According to the indictment, the conspiracy employed dozens of couriers and imported over one million Ecstacy pills into the United States before it ceased operation. (See Superseding Indictment S6 03 Cr. 514 ¶¶ 3-6.)

  Cosimi, one of the couriers for the conspiracy, was arrested on June 12, 2003, when he arrived at John F. Kennedy Airport from Europe while in possession of a suitcase that contained approximately two kilograms of Ecstacy pills. The operative indictment accuses Cosimi with participation in the conspiracy, and with possession of Ecstacy pills with intent to distribute them, based on Cosimi's transportation of drugs into the United States on that date. Cosimi initially entered a plea of not guilty, but ultimately changed his plea to guilty on December 3, 2004. During his plea allocution, Cosimi admitted to making an additional trip into the United States as a courier for the conspiracy before the trip that led to his arrest and indictment. He also sufficiently allocuted to the elements of the crimes for which he was actually charged. (See Transcript of Sentencing Hearing, dated April 29, 2005 ("Hr'g Tr.") at 23-29.)

  In connection with Cosimi's plea, Cosimi and his attorney, David Lewis ("Lewis"), entered into a plea agreement with the Government on December 3, 2004 ("Plea Agreement") in which Cosimi and the Government stipulated that the offense level associated with Cosimi's conduct under the United States Sentencing Guidelines ("U.S.S.G." or the "Guidelines") was 25, which corresponds to a stipulated sentencing range of 57 to 71 months for someone with his criminal history (the "Stipulated Sentencing Range"). In the agreement, the Government promised that it would not prosecute Cosimi any further "for conspiring to distribute, and for possessing with the intent to distribute, between 1.4 and 2 kilograms of MDMA, from in or about May 2002 through in or about August 2003, as charged in the Indictment." (Plea Agreement at 1.) In exchange for this promise from the Government, the Plea Agreement committed Cosimi to accepting the validity of the Stipulated Guidelines Range, and to forego seeking any relief that may have otherwise been available to him under the Guidelines. The Government was similarly limited in its ability to seek an upward departure or adjustment under the Guidelines. As the Plea Agreement stated:
The parties agree that neither a downward nor an upward departure from the Stipulated Sentencing Guidelines Range of 57 to 71 months' imprisonment set forth above is warranted. Accordingly, neither party will seek such a departure or seek any adjustment not set forth herein. Nor will either party suggest that the Probation Department consider such a departure or adjustment, or suggest that the Court sua sponte consider such a departure or adjustment.)
(Plea Agreement at 3.) The agreement also stipulated that Cosimi agreed "to waive all constitutional challenges to the Sentencing Guidelines," and "to be sentenced pursuant to the applicable Sentencing Guidelines." (Id. at 4.) The agreement was entered into before the United States Supreme Court announced its decision in United States v. Booker, 125 S. Ct. 738 (2005), on January 12, 2005. B. THE PARTIES' SENTENCING ARGUMENTS

  On April 18, 2005, as Cosimi's April 29, 2005 sentencing date approached, Cosimi submitted a lengthy sentencing letter to the Court ("Sentencing Letter"). The Sentencing Letter expressed Cosimi's intent to remain bound by the terms of the Plea Agreement and his continued acceptance of the Stipulated Guidelines Range. The letter then proceeded to explain that under considerations made relevant to sentencing by Booker, the Court was no longer mandated to adhere to the Guidelines and could impose a non-Guidelines sentence below the Stipulated Guidelines Range. Accordingly, Cosimi argued that under the post-Booker sentencing regime, having weighed all of the factors articulated by 18 U.S.C. § 3553(a) ("Section 3553(a)") that the Court was now authorized by Booker to consider in addition to the Guidelines, the Court could properly sentence Cosimi to time served.*fn2

  The Sentencing Letter explicitly accepted the continued applicability and validity of the Guidelines calculation contained in the Plea Agreement, which was adopted by the Probation Department and incorporated into Cosimi's Presentence Investigation Report. The letter also expressed Cosimi's intent to remain bound by the terms of the Plea Agreement, presumptively meaning that were the Court to sentence Cosimi to a term of incarceration within or below the Stipulated Guidelines Range, he would accept his sentence as binding and not appeal it. (See Sentencing Letter at 1-2 ("We have no objection to the Guideline range or the manner of its calculation. We are bound by our plea agreement and separately believe it to be a correct computation under the U.S. Sentencing Guidelines."); Plea Agreement at 4 ("the defendant will not file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below the Stipulated Sentencing Guidelines Range set forth above of 57 to 71 months").) It went on to explain that Booker and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), now require the Court to take into account factors other than the Guidelines when determining a proper sentence for a defendant. Consequently, Cosimi sought to present information that would enable the Court, in applying the greater sentencing flexibility it now possesses, to consider those newly-relevant factors in the light most favorable to Cosimi. On this point, the letter stated:
To the extent that the remedial elements of Booker permit argument of factors under Title 18 U.S.C. § [3553] (a) that was previously barred from consideration we have set out those areas in order to present the possibility to the Court that the defendant should receive what is now denominated a non-Guideline sentence, a remedy unforeseen at the time of the plea in the instant matter.
(Id. at 3.)*fn3

  The Sentencing Letter asserted that there were two primary bases on which the factors articulated by Section 3553(a) would permit the Court to impose a sentence of time served on Cosimi. First, Cosimi contended that, pursuant to 18 U.S.C. §§ 3553(a)(1) and (a)(2)(C), his advanced age, his apparent lack of criminal history, and his status as an Italian national with no ability to speak English, supported a non-Guidelines sentence.*fn4 According to the letter, Cosimi's age, slight build, and lack of English language skills render him more likely to be victimized while in prison. In addition, according to studies cited by the letter, Cosimi's age and lack of criminal history indicate that he presents a low risk of recidivism, thus reducing the need for the sentence imposed "to protect the public from further crimes of the defendant." 18 U.S.C. § 3553(a)(2)(C). (See Sentencing Letter at 8-9 (citing, inter alia, United States v. Nellum, No. 2:04-CR-30-PS, 2005 WL 300073 (N.D. Ind. Feb. 3, 2005) (holding that the defendant's advanced age and other characteristics warranted a non-Guidelines sentence).)

  Second, the letter argued that the Court should impose a non-Guidelines sentence on the grounds that, as an alien subject to deportation, Cosimi would not be able to avail himself of a number of means by which inmates would otherwise be able to obtain reductions in the severity or length of punishment, including home detention, community confinement, work release, or minimum security designation. (See Sentencing Letter at 9-11.) The letter acknowledged that the Second Circuit had prohibited consideration of the conditions of an alien's confinement as grounds for a downward departure under the Guidelines in United States v. Restreppo, 999 F.2d 640, 645-46 (2d Cir. 1993), but claimed that the punishment faced by a defendant was made newly relevant to sentencing by Section 3553(a). (See Sentencing Letter at 10.)

  The Government then submitted a letter to the Court dated April 22, 2005 ("Gov't Opp'n Letter"), that contended the Sentencing Letter violated the terms of the Plea Agreement by seeking a sentence of time served. On the basis of Cosimi's purported breach of the agreement, the Government sought to adjourn Cosimi's sentencing and hold a Fatico hearing to prove that Cosimi deserved a higher Guidelines sentencing range than the range stipulated to in the Plea Agreement "unless Cosimi withdraws his letter of April 18, 2005 and agrees to abide by his promises in the plea agreement." (Gov't Opp'n Letter at 4.)

  The Government argued that the Sentencing Letter's advocacy violated three provisions of the plea agreement: 1) Cosimi's consent "to be sentenced pursuant to the applicable Sentencing Guidelines"; 2) his agreement "to waive all constitutional challenges to the Sentencing Guidelines"; and 3) his promise to not seek any downward departure from, or adjustment of, the Stipulated Guidelines Range of 57 to 71 months' imprisonment. (See id. at 2.) According to the Government, Cosimi's arguments that the Court "must consider more than the Guidelines alone" when sentencing him (Sentencing Letter at 3), that a sentence imposed pursuant to the Guidelines alone would be unconstitutional (see id.), and that he should receive a sentence of "time served" (id. at 11) were "the precise arguments that he had promised not to make" in the context of his plea agreement. (Gov't Opp'n Letter at 2.) While the Government acknowledged that Cosimi did not challenge the Stipulated Guidelines Range, it contended that "he presented other arguments that make the parties' agreement about this range meaningless." (Id.) According to the Government, these arguments constituted an impermissible effort to "retain the positive features of his plea agreement (i.e., the Government's concessions regarding his Guidelines range) while discarding its negative aspects (i.e., his `explicit consent' to be sentenced under the Guidelines)." (Id.)

  The Government argued that it was entitled to cancel the Plea Agreement on the basis of Cosimi's purported breach. Noting that plea agreements are construed according to contract law principles (see id. (citing United States v. Yemitan, 70 F.3d 746, 747 (2d Cir. 1995)), the Government maintained that pursuant to United States v. Cimino, 381 F.3d 124, 128 (2d Cir. 2004), it may elect to be freed from its obligations under a plea agreement when a defendant breaches his or her duties under the agreement. In Cimino, the Second Circuit held that the Government was authorized to seek a higher sentence than that stipulated to under a plea agreement pursuant to facts found in ...

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