The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Jorge Manuel Torres Teyer ("Torres"), Victor Manuel Adan Carrasco ("Carrasco"), and Oscar Moreno Aguirre ("Moreno") 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), after having been arrested in Belize in possession of 1500 kilograms of cocaine destined for the U.S. market. On remand from the Court of Appeals pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), having been sentenced at a time when the United States Sentencing Guidelines were perceived as mandatory, they seek resentencing under the principles announced by the Supreme Court in United States v. Booker, 543 U.S. 220 (2005). The applications of Torres and Carrasco will be denied, since any error in applying the Guidelines as mandatory was harmless, in that the Court can be confident that their sentences would not have been different had they been sentenced under an advisory guidelines regime. Moreno's application will be granted.
In late May and early June 2003, Torres, Carrasco and Moreno pled guilty to narcotics conspiracy and firearms charges carrying maximum potential sentences of life imprisonment, and mandatory minimum sentences totaling 15 years in prison. After an evidentiary hearing, the Court resolved a number of disputed factual and legal issues related to the correct calculation of a sentence under the United States Sentencing Guidelines in a lengthy written opinion. United States v. Torres Teyer, 322 F. Supp. 2d 359 (S.D.N.Y. 2004). At the time, it was believed that the Guidelines mandated the sentences to be imposed on the defendants. Accordingly, finding no reason to depart from the sentencing range provided in the Guidelines, the Court sentenced both Torres and Carrasco within their respective applicable guideline ranges. On May 4, 2004, Torres was sentenced to a total of 38 years (456 months) in prison, and Carrasco to 22 years (264 months) in prison. Moreno was sentenced to a total of 17 years (204 months) in prison, which represented an upward departure from the guideline recommendation, which would have directed imposition of the minimum 15-year term, based on a finding that he was a minor participant in the offense. (For reasons discussed at length in the Court's sentencing opinion, 322 F. Supp.2d at 379-84, and reviewed below, however, the question of Moreno's minor participation was such a close one that the sentence could nearly as accurately have been viewed as a downward departure from the minimum sentence of nearly 21 years (248 months) that would have been required had the minor participation reduction not been applied.)
All three defendants appealed. Between the imposition of the sentence and the resolution of the appeal, the Supreme Court decided both Blakely v. Washington, 542 U.S. 296 (2004), and Booker, 543 U.S. 220, radically altering the proper understanding of the governing sentencing regime, and rendering erroneous this Court's conclusion that imposition of a guidelines sentence was mandatory (apart from the limited departures expressly permitted by the Guidelines). Thus, although the Court of Appeals affirmed the defendants' convictions and rejected Carrasco's objections to this Court's guidelines rulings, the case was remanded to this Court for proceedings consistent with Booker and Crosby. See United States v. Magana, 147 Fed. Appx. 200 (2d Cir. 2005). In other words, this Court was instructed (unless the defendants chose not to seek resentencing) (1) to consider whether the defendants' sentences would have been "nontrivially different" if the Court had correctly applied the Guidelines only as advisory and had imposed sentence in accord with the factors set forth in 18 U.S.C. § 3553(a), and if so, (2) to resentence the defendants under the proper standards. Crosby, 397 F.3d at 118.
This Court promptly ordered the defendants to advise the Court in writing whether they sought to be resentenced and, if so, to "submit, along with the request for resentencing, any arguments supporting the contention that the sentence imposed would or should have been 'nontrivially different' had sentencing been [conducted] in accord with the principles set forth in § 3553(a) rather than the mandate of § 3553(b), including any additional considerations, not already presented to the Court, which might bear on the sentences to be imposed and that might justify resentencing." Order of June 21, 2005, at 2. While Carrasco, represented by counsel, promptly submitted a letter in support of resentencing, Torres, acting pro se, and Moreno, represented by counsel, requested and received various extensions to the original submission deadline. Moreno submitted an argument for resentencing on March 10, 2006. Torres initially submitted arguments pro se in support of re-sentencing, including submissions both in Spanish and in English. Eventually, however, Torres sought and received appointment of counsel to press his application, and on July 31, 2006, counsel submitted further arguments in support of resentencing. The Government in turn sought additional extensions of time to respond to defendants' applications, as well as to a similar application by co-defendant Oscar Moreno Aguirre. Its response was filed, and the matter finally fully submitted, on November 3, 2006.
Having fully reviewed all submissions of the parties, the Court concludes as to defendants Torres and Carrasco that any error in treating the Guidelines as mandatory was harmless. Their applications for resentencing will therefore be denied. As to defendant Moreno, the Court cannot be confident that the error was harmless. His application will therefore be granted.
The facts are fully set forth in the Court's sentencing opinion and will not be repeated in detail here. A brief summary will suffice.
Two of the three defendants were key figures in a massive international cocaine syndicate. Torres managed an extensive and complex transshipment operation based in Belize, organizing and supervising the transmission of thousands of kilos of cocaine from Colombia, via Belize and Mexico, to the United States. Carrasco handled narcotics shipments and reported to Torres about any problems that arose, and also reported on Torres's activities to leaders of the cartel. 322 F. Supp. 2d at 363-64, 371-75. Moreno, as indicated by the minor role adjustment, played a much less significant role, as a foot soldier in the army of workers and armed thugs directed by Torres.
Defendants conceded that the quantity of cocaine involved in their conspiracy placed their offense at the highest base offense level for narcotics crimes under the Guidelines. Id. at 363. Indeed, as the Court found after a full evidentiary hearing, "[t]he evidence easily supports a finding that Torres-Teyer's activities involved the importation of 15,000 kilograms, perhaps more -- at a minimum, more than 100 times the amount that would justify a base offense level of 38." Id. at 371. Torres was an organizer or leader within the operation. He "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." Id. at 365.
Moreover, the conduct proved at the hearing went far beyond the mere importation of drugs, however vast the quantity. The conspirators possessed large numbers of firearms, and Torres's own handwritten notes, seized in Belize and placed in evidence at the sentencing hearing include[d] orders for the provision of weapons, including machine guns, and chilling instructions to boat captains engaged in drug delivery. For example, Torres instructed members of the conspiracy that if purported customers did not give the correct password, they should "shoot them all and kill them." Similarly, if the purported customers did not deliver the appropriate amounts of money, in the right color suitcases, in the right sequence, Torres Teyer instructed his subordinates to "kill them all."
Id. at 371. Torres personally possessed "a veritable arsenal of weapons at his home," id., and supervised a virtual private army of gunmen armed with assault rifles to protect the narcotics operation, id. at 371, 381. In addition, Torres schemed to obstruct justice by corrupting officials in Belize and recruiting his co-defendants to perjure themselves in Belizean criminal proceedings. Id. at 366-71.
Carrasco was a lesser figure, but still a substantial one, in the conspiracy. In calculating the guidelines range, the principal issue with respect to Carrasco was whether he should be assessed an enhancement as a manager or supervisor in the organization. See id. at 373-75. Although the Court did not find that enhancement appropriate, it noted that "[u]nquestionably, Carrasco enjoyed a position of some responsibility in the organization, and Torres Teyer entrusted him with the transfers of cocaine from the Columbian ships to boats destined for Mexico." Id. at 373. There was also evidence that Carrasco functioned as a sort of spy sent by the drug cartel's leaders to check up on Torres's management of their interests. Id. at 375 & n.7. Carrasco carried weapons, including an assault rifle, on trips to meet the cocaine ships, id. at 376, trips on which Torres's orders were to shoot to kill if anything went wrong. And he was present, along with an armed guard, with the 1500 kilos whose seizure led to the defendants' arrest. Id. at 373, 378.
Moreno was the armed guard present at that seizure. Little else is known about his role. The evidence indicated that he was one of the large numbers of "pistoleros and laborers" employed by Torres to carry out functions in the organization. Id. at 363.
The Court's findings and conclusions at the time of sentence make vividly clear that the sentence imposed on Torres would have been the same under the current sentencing regime. First, had the Court imposed its sentence only under the compulsion of the Guidelines, the sentence would surely have been at the low end of the guideline range. It was not. The guideline range was 324 to 405 months, to be followed by a mandatory consecutive sentence of 60 months pursuant to 18 U.S.C. § 924(c). Thus, Torres could have received a sentence as low as 384 months. Instead, the Court sentenced Torres to a total of 456 months in prison, a full six years more than the minimum sentence recommended (and then believed to be required) by the Guidelines.
Second, the Court's express reasoning, both in the sentencing opinion and in its oral remarks at the time of the sentence, make clear that the Court believed the sentence imposed to be richly deserved for reasons particular to the defendant's circumstances. The Court considered factors argued by the Government to support an upward departure, principally the sheer volume of drugs and guns involved in the case, which dwarfed the amounts (150 kilograms and one gun) required to trigger the guideline sentence calculated by the Court, and concluded that "[t]hese circumstances clearly justify an upward departure." 322 F. Supp.2d at 372. Nevertheless, the Court declined in its discretion to depart, because "it need not depart to achieve an appropriate sentence." Id. The sentencing range available under the Guidelines permitted the Court to achieve the sentencing result it ...