United States District Court, S.D. New York
MEMORANDUM DECISION & ORDER
KATHERINE B. FORREST, District Judge.
On September 29, 2011, an Indictment was returned against Yesid Rios Suarez, a Colombian citizen, charging him with participation in a conspiracy to import cocaine. (ECF No. 3.) He was extradited from Colombia and arraigned in this Court on May 2, 2014. The defendant pled guilty to the Indictment on February 4, 2014, and sentencing is scheduled for June 6, 2014. The defendant disputes several facts relevant to sentencing. The Court held a Fatica hearing on May 2 and 7, 2014, at which two witnesses (Yon Pelayo Garzon Garzon and Luis Ramirez Pajon) testified on behalf of the Government. The instant Decision constitutes the Court's findings as to those disputed facts.
The Government has proffered a calculation of the defendant's offense level under the Sentencing Guidelines as follows:
The conspiracy involved thousands of kilograms of cocaine, which would result in a base offense level of 38, pursuant to U.S.S.G. § 2D1.1(c)(1);
The defendant was a leader or organizer of the conspiracy, and the conspiracy involved five or more participants and was otherwise extensive, resulting in a four-level enhancement pursuant to U.S.S.G. § 3B1.1(a);
The defendant was directly involved in the importation of a controlled substance and committed the offense as part of a pattern of criminal conduct engaged in as a livelihood, which results in a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(14)(C) and (D);
The defendant both carried or caused members of the conspiracy to carry dangerous weapons (e.g. firearms) in furtherance of the charged conspiracy, which results in a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1);
The defendant unlawfully imported a controlled substance under circumstances in which an aircraft other than a regularly scheduled commercial carrier was used to import the controlled substance, which results in a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(3); and
The defendant directed the use of violence, which results in a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(2).
Based on its representations at the change of plea hearing, the Government does not contest a three-level reductions for the defendant's timely acceptance of responsibility. (See 2/4/14 Plea Tr. at 6, ECF No. 48.) The Government's
Guidelines' calculation results in an offense level of 47. Pursuant to U.S.S.G. § 5A, Application Note 2, offense levels above 43 are treated as an offense level of 43. Thus, according to the Government, the defendant's offense level is 43. This corresponds to a Guidelines range of life imprisonment, regardless of the defendant's criminal history category.
The defendant's proposed Guidelines calculation contains notable differences. According to the defendant, he is responsible for one instance of loading five kilograms of cocaine into an airplane as a low level employee. This conduct would result in the following calculation of his offense level:
Pursuant to U.S.S.G. § 2D1.1(c)(4), the defendant's base offense level should be 32;
Use of an airplane on an other than regularly scheduled commercial flight would add two levels pursuant to ...