The opinion of the court was delivered by: John Gleeson, United States District Judge
Familiarity with all prior proceedings, including the Second Circuit's opinion dated December 6, 2005, Galviz Zapata v. United States, 431 F.3d 395 (2005), is assumed. Based on the original evidentiary hearing on March 9, 2001 and a supplemental evidentiary hearing on February 9, 2006, I make the following findings of fact in compliance with the Second Circuit's directions.
1. The defendant*fn1 was charged with narcotics trafficking in an information. The penalty provision cited in the caption and in the text of the information subjected him to a mandatory minimum sentence of ten years and a maximum sentence of life in prison. A.141-42.*fn2
2. The defendant agreed to plead guilty. In return, the government agreed to recommend a base offense level of 32, two levels lower than the facts warranted. See A. 78; see also A. 83-85.
3. The government further agreed not to recommend an upward adjustment for an aggravating role in the offense, which the facts arguably warranted. See A. 78; see also A. 100 (despite plea agreement, probation officer who prepared presentence report recommended three-level upward adjustment for role in the offense).
4. This latter agreement was important, not only because the role adjustment would have elevated the defendant's guidelines range, but also because it would have rendered him ineligible for "safety value" relief from the mandatory minimum. See U.S.S.G. §§ 2D1.1(b)(7) and 5C1.3(a)(4).
5. The defendant pled guilty on July 7, 1999. He was expressly informed that he faced a 10-year mandatory minimum in the absence of an exception. A. 69. Because the defendant was not contemplating cooperation with the government, the exception available to him was the possibility of "safety valve" relief from the mandatory minimum. See U.S.S.G. § 5C1.2; 18 U.S.C. § 3553(f).
6. Safety valve relief is available only if five prerequisites are satisfied. One is a truthful statement by the defendant to the government providing all information and evidence concerning the defendant's offense of conviction and other relevant conduct. See U.S.S.G. § 5C1.2(a)(5).
7. In this case, at the time the defendant pled guilty, he intended to make such a statement. See A.98 (it was not a foregone conclusion at time of plea that the defendant would face a mandatory minimum). However, he later decided that he did not wish to make a full disclosure of the facts surrounding his offense and other relevant conduct. A. 101; A. 114.*fn3
Thus, he chose to remain subject to the 10-year mandatory minimum.
8. When the defendant appeared for sentencing, he expected that his guidelines range would be 108-135 months. A. 84. He also expected to be sentenced to the mandatory minimum of 120 months, as he chose not to seek relief from that requirement. A. 85-86.
9. At sentencing, the defendant's counsel, upon my inquiry, stated that there was an "academic" dispute regarding the offense level. Specifically, the question was whether the defendant should be held accountable for 1-3 kilograms of heroin or 3-10 kilograms. Either quantity subjected him to the mandatory minimum sentence of ten years. Though counsel was correct that the issue was academic, I nevertheless addressed the dispute and resolved it in the defendant's favor. Specifically, although the facts warranted a base offense level of 34, I permitted the parties to reduce that by agreement to level 32. A. 85. As a result, I lowered the guidelines range to 87-108 months. I then sentenced the defendant to 120 months. A. 87.
10. Both the defendant and his lawyer, Lisa Scolari, were upset about the 10-year sentence. That I had lowered the guidelines range from 108-135 months (which embraced the mandatory minimum term) to 87-108 months moments before sentence was imposed no doubt exacerbated the disappointment.
11. Immediately after the sentence, Scolari conferred with the defendant in the holding pen adjacent to the courtroom. Each realized that the defendant's decision not to seek safety valve relief had likely cost him 33 months in jail, i.e., the difference between the mandatory minimum ...