The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
On October 26, 2009, Luis Batista, a former detective of the New York City Police Department ("NYPD"), was found guilty after a jury trial of Counts One (conspiracy to distribute cocaine, cocaine base ("crack"), and ecstasy), Two (conspiracy to commit bank fraud), Three (bank fraud), and Eight (obstruction of justice) of an eight-count, fifth superseding indictment.*fn1 On January 20, 2010, the United States Probation Department ("Probation") disclosed a presentence report ("PSR"), which subsequently was revised on May 25, 2010 ("Revised PSR"). The parties submitted sentencing memoranda in connection with objections to the PSR and additional factors the parties requested the court to consider. A supplemental briefing schedule was set on April 6, 2010, and extended on the government's request on May 6, 2010. On May 26, 2010, the court held oral arguments on the objections to the PSR and Revised PSR.
On June 10, 2010, after hearing oral argument from counsel for both sides and defendant's statement, the court imposed a term of imprisonment of 180 months on each count of conviction to run concurrently with one another. The court also imposed a term of five years of supervised release as to Count One and three years of supervised release as to each of the remaining counts, all to run concurrently with one another. A fine of $25,000 also was imposed. Certain issues raised by the parties and considered by the court in determining Batista's sentence merit discussion. The court therefore provides the basis for its reasoning below.*fn2
Familiarity with the charges, background and procedural history of this case is presumed. The court previously set forth a more-detailed account of the facts and circumstances of this case in its Opinion and Order dated March 24, 2010, granting in part and denying in part, defendant's Rules 29 and 33 motion, and Memorandum and Order dated March 31, 2009, denying defendant's motion to suppress evidence. See United States v. Batista, 2010 WL 1193314 (E.D.N.Y. Mar. 24, 2010); United States v. Batista, 2009 WL 910357 (E.D.N.Y. Mar. 31, 2009), respectively.
Briefly stated, the relevant facts are as follows: Virgilio Hiciano operated a large narcotics organization in the Bushwick area of Brooklyn, New York. To operate the organization, Hiciano used several apartments inside a building located at 441 Wilson Avenue to store and sell drugs, primarily crack cocaine. Hiciano also stored and packaged drugs at an apartment located at 1127 Decatur Street. Batista, a NYPD Detective, developed a close, friendly relationship with Hiciano, throughout the course of which Batista warned Hiciano about police activity, provided Hiciano with confidential law enforcement information and utilized police department or other law enforcement databases to conduct various queries at Hiciano's request. During the course of investigating Batista's involvement in the narcotics conspiracy through the use of court-authorized wiretaps on Batista's cell phone and consensual recordings, federal agents also discovered that Batista and William Valerio, a NYPD Sergeant assigned to the Internal Affairs Bureau, committed bank fraud by providing to a municipal credit union, as part of a mortgage loan application, a fraudulent termite inspection and treatment certification form. Federal agents also discovered that Batista tried to obstruct justice by enlisting the aid of a childhood friend, Henry Conde, a NYPD Sergeant assigned to the Internal Affairs Division.*fn3
Batista was arrested on January 31, 2008. The jury trial commenced on September 21, 2009. The jury returned a guilty verdict as set forth above on October 26, 2010. The following offense level calculations were set forth in the Revised PSR.*fn4
As to Count One, conspiracy to distribute and possess with intent to distribute cocaine base, cocaine, and ecstasy, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A), 841(b)(1)(C), Batista reasonably could be held accountable for the distribution of 150 kilograms or more of cocaine and at least 50 grams of cocaine base ("crack") during the course of the offense and, per U.S.S.G. § 2D1.1(c)(1), the base offense level is 38. (Revised PSR ¶ 63.) Probation also determined that possession of a weapon in furtherance of the narcotics conspiracy was reasonably foreseeable to Batista, and a two-level enhancement per U.S.S.G. § 2D1.1(b)(1) is warranted. (Revised PSR ¶ 64.) As a NYPD officer, Batista abused a position of public trust in facilitating the commission of the narcotics conspiracy, thus warranting a two-level enhancement per U.S.S.G. § 3B1.3. (Revised PSR ¶ 66.) Moreover, Probation found that Batista perjured himself at trial, falsely denying his role in many material aspects, warranting a two-level enhancement for obstruction of justice per U.S.S.G. § 3C1.1. (Revised PSR ¶¶ 67-69.) Finally, Probation applied a four-level reduction for minimal role pursuant to U.S.S.G. § 3B1.2(a) because Batista did not personally handle, sell or deliver any of the drugs involved in the conspiracy. (Revised PSR ¶ 65.) The resulting adjusted offense level for Count One was thus calculated as 36. (Revised PSR ¶ 151.)
As to Counts Two and Three, conspiracy to commit bank fraud and bank fraud, pursuant to U.S.S.G. § 2B1.1(a)(1), the base offense level is 7. (Revised PSR ¶ 70.)*fn5
As to Count Eight, obstruction of justice, 18 U.S.C. § 1512(c), because the offense involved the obstruction of the investigation or prosecution of a criminal offense, then per U.S.S.G. § 2J1.2(e), U.S.S.G. § 2X3.1 applies. (Revised PSR ¶ 71.) Thus, the base offense level is six points lower than the offense level for the underlying offense. U.S.S.G. § 2X3.1(a)(1). The offense level for the underlying offense of conviction, the narcotics conspiracy charged in Count One, as determined by Probation, is 36. Therefore, the base offense level for Count Eight is 30. (Id.)
Based on these calculations, and per U.S.S.G. §§ 3D1.2(a) and 3D1.4, the Revised PSR set forth a total offense level of 36. (Id. ¶ 151.)
The parties dispute several aspects of the Revised PSR's guidelines calculation. The government argues that Batista should not receive any mitigating role reduction. Batista contends that he should not receive the two-point enhancement for obstruction of justice or the two-point enhancement for possession of a firearm.
A. A Mitigating Role Adjustment is Unwarranted
Batista concurs with Probation's conclusion that, because he neither handled or directly distributed any of the drugs, and, at most was a peripheral participant in the narcotics conspiracy, he is entitled to either a two-point or four-point reduction for minor or minimal role, respectively, pursuant to U.S.S.G. § 3B1.2. The government objects to Probation's conclusions as reflected in the PSR and opposes Batista's position, contending that the defendant played a unique, invaluable role in the narcotics conspiracy.
Batista bears the burden of proving by a preponderance of the evidence that he is entitled to a mitigating role adjustment. See United States v. Garcia, 920 F.2d 153, 156 (2d Cir. 1990). Batista fails to meet his burden here.
The Sentencing Guidelines provide that the minimal role adjustment: is intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group. Under this provision, the defendant's lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant.
U.S.S.G. § 3B1.2, comment (n.4). The Sentencing Guidelines also state that "[i]t is intended that the downward adjustment for a minimal participant will be used infrequently." Id.; see also United States v. LaValley, 999 F.2d 663, 665 (2d Cir. 1993). The Guidelines describe a minor participant as a defendant "who is less culpable than most other participants, but whose role could not be described as minimal." U.S.S.G. § 3B1.2, comment (n.5). The Second Circuit has held that "a lack of knowledge or understanding is essential to a finding of minimal role, and is a relevant factor to be considered in reaching a finding of a minor role." LaValley, 999 F.2d at 665 (citation omitted).
Moreover, "the defendant's conduct must be minor or minimal as compared to the average participant in such a crime. Accordingly, the fact that a defendant played a minimal or minor role in his offense vis-a-vis the role of his co-conspirators is insufficient, in and of itself, to justify a [mitigating role] reduction." United States v. Carpenter, 252 F.3d 230, 235 (2d Cir. 2001) (emphasis added, internal quotation marks and citations omitted).
Here, Batista cannot demonstrate the lack of knowledge that is essential and relevant to finding that either a minimal or minor role adjustment is warranted. There was ample credible evidence adduced during the trial establishing that Batista knew Hiciano ran a major drug distribution organization in the Bushwick area of Brooklyn, as well as where Hiciano stored, packaged and sold his narcotics. (See Hiciano's testimony at Tr. 496 (Batista knew Hiciano was "packing crack" at the 1127 Decatur location); Tr. 497 (Hiciano: "I told [Batista] everything. I talk to him about all of my things, where I worked, all of that."); Tr. 414 (Hiciano informed Batista he was a drug dealer); Tr. 442 (Batista told Hiciano that his dealers should not sell in front of Batista when he was at the 441 Wilson location); Tr. 478-79 (Hiciano discussed the price of a kilogram of cocaine with Batista); see also Tr. 699.) There was additional ample testimony throughout the record that Batista knew some of Hiciano's key workers, such as Luis "Cookie" Calderon, a livery driver who delivered drugs and picked up narcotics proceeds for Hiciano. See United States v. Batista, 2010 WL 1193314 (E.D.N.Y. Mar. 24, 2010) (order granting in part and denying in part motion for judgment of acquittal as to Batista under F. R. Crim. P. 29 and 33).
In addition to Batista's knowledge of the conspiracy, Batista's contributions to the conspiracy demonstrate that he had more than a minor or minimal role. Batista was a unique and invaluable asset to the conspiracy that was not readily replaceable the way a street-level drug seller would be. Moreover, he provided confidential law enforcement information permitting Hiciano to avoid arrest and a shutdown of his narcotics operations, and minimize any losses due to police actions.
For example, Hiciano testified that Batista knew about Hiciano's actions. (Tr. 497.) Nevertheless, Batista, a NYPD detective and former narcotics undercover officer, dispensed with his oath and duty to uphold the law and protect the public by failing to disclose this information to the police. He thus assisted the conspirators avoid detection by law enforcement. Hiciano further testified that "[e]verybody had the chance to see [him] with a police officer," which was a benefit because it gave Hiciano more "status." (Tr. 576-77; see also Tr. 803 (Maria Garcia's testimony that Hiciano informed people that Batista was a police ...