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United States v. Caballero

United States District Court, S.D. New York

February 24, 2015


Page 210

For Saul Caballero, also known as Paisa, also known as Fernando Pena-Baez, Defendant: Sabrina P. Shroff, Sarah Jane Baumgartel, Federal Defenders of New York Inc. (NYC), New York, NY.

For Hector Mena, Defendant: Edward David Wilford, LEAD ATTORNEY, Edward D. Wilford, Esq., New York, NY; Robert A. Feitel, Law Office of Robert Feitel, Wshington, DC.

For Juan Paulino, also known as Shorty, Defendant: Irving Cohen, Irving Cohen, Attorney-At-Law, New York, NY.

For Pedro Brito, also known as Cabrito, also known as Leica, also known as Francisco Ortega-Almanzar, Defendant: Judith Vargas, The Law Office of Judith Vargas, New York, NY.

For USA, Plaintiff: A. Damian Williams, LEAD ATTORNEY, U.S. Attorney's Office, SDNY (St Andw's), New York, NY; Amy Garzon, United States Attorney Office, SDNY, New York, NY; Jessica Rose Lonergan, Patrick Egan, U.S. Attorney's Office, SDNY, New York, NY.

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P. Kevin Castel, United States District Judge.

Defendant Saul Caballero entered a plea of guilty to participating in two drug conspiracies. He now awaits sentencing and objects to an aggravating role enhancement under section 3B1.1 of the Sentencing Guidelines. Caballero argues that because a leadership or managerial enhancement under the Sentencing Guidelines would render him ineligible for the " safety valve" of 18 U.S.C. § 3553(f)(4), a finding that he had such a role has the effect of increasing his mandatory-minimum sentence. He argues that his role enhancement must be proven beyond a reasonable doubt to the satisfaction of a jury, because under Alleyne v. United States, " any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury." 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013).

Caballero challenges the government's assertion, adopted in the Presentence Report (the " PSR" ), that he was a leader or organizer of the two conspiracies. This Court conducted a two-day hearing pursuant to United States v. Fatico, 603 F.2d 1053 (2d Cir. 1979), at which the government endeavored to prove the enhancement by a preponderance of the evidence to the. The parties submitted memoranda of law prior to the hearing, and, at the request of the Court, supplemental briefing thereafter.

For the reasons explained, this Court concludes that the government has proved by a preponderance of the evidence that Caballero acted as a manager or supervisor of the underlying heroin distribution conspiracy. As to the conspiracy to distribute crystal methamphetamine, the government has not proved that Caballero had a leadership or managerial role. Finally, this Court joins other courts that have concluded that a jury does not need to make the findings of fact necessary to determine the defendant's eligibility for the " safety valve."


On March 26, 2014, Caballero pleaded guilty to two counts of conspiracy to distribute narcotics in violation of 21 U.S.C. § § 846, 841(a)(1) and 841(b)(1)(A), as charged in an S15 indictment. (Docket # 108.) On Count One, Caballero pleaded guilty to participating in a conspiracy to distribute, or to possess with intent to distribute, 500 grams and more of methamphetamine. (Docket # 108 at 14-15, 23.) On Count Two, Caballero pleaded guilty to participating in a conspiracy to distribute, or to possess with intent to distribute, one kilogram and more of heroin. (Docket # 108 at 15-17, 23.)

The PSR identifies Caballero as " the leader of this drug conspiracy." (PSR ¶ 18.) It recommends a four-level increase to his offense level based on his leadership status, U.S.S.G. § 3B1.1(a), and groups the two conspiracy counts pursuant to U.S.S.G. § 3D1.2(d). (PSR ¶ ¶ 70, 74.) Caballero objects to portions of the PSR that purport to describe his leadership role, specifically as set forth in paragraphs 18, 29 and 64. (Nov. 14 Tr. 4-6.) Paragraph 18 of the PSR asserts: " Saul Caballero was the leader of this drug conspiracy. He was the main target of the investigation due to his involvement in the distribution of methamphetamine and heroin." Paragraph 29 states that Caballero asked a co-conspirator to purchase him a plane ticket from California to Des Moines, Iowa. Paragraph 64 states in part that Caballero's co-defendants " were subordinate

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to" Caballero, " who was responsible for obtaining the heroin directly from Mexico, and who organized the various workers who helped him distribute the heroin in the Bronx, New York." The same paragraph also states that Caballero " was responsible for" flying heroin couriers into the United States, and " then relied on his workers to distribute the heroin in the Bronx, New York." It also states that Caballero " played a similar leadership role in the crystal methamphetamine conspiracy." According to paragraph 64, as leader of the crystal methamphetamine conspiracy, Caballero " led" Juan Paulino, Hector Mena and Jose Hinojosa in the drug's distribution.

At the Fatico hearing held on November 14 and December 17, 2014, the government called three witnesses: Special Agent Moises Walters of the Drug Enforcement Agency, and alleged co-conspirators Juan Paulino and Nancy Castaneda. The defendant called no witnesses. The Court adopted as its findings of fact all portions of the PSR to which neither side objected. (Nov. 14 Tr. at 7.) Its further findings of fact are set forth in Sections I(B) and (C) of this Memorandum and Order, and its conclusions of law are in the balance of the Memorandum and Order.


I. The Government Has Proved that Caballero Was a Manager or Supervisor of the Heroin Conspiracy, But Has Not Proved that He Had a Leadership or Managerial Role in the Crystal Methamphetamine Conspiracy.

A. The Statute Requires the Court to Make Findings of Fact Under the Guidelines and Apply Those Findings to the Safety-Valve Determination.

In determining a defendant's sentence, a court must consider the applicable advisory sentencing guidelines range, together with the policy statements and official commentary of the United States Sentencing Commission. 18 U.S.C. § 3553(a)(4) & (5), 3553(b). The Court is not relieved of that obligation merely because of the existence of a mandatory minimum sentence, although the mandatory minimum may influence the calculation of the guidelines range. The determination of whether a defendant had an aggravating or mitigating role in an offense is a required part of a court's determination of the advisory guidelines range. U.S.S.G. § 1B1.1(a)(3).

As will be discussed, in Section II of this Memorandum and Order, the " safety valve" permits a court to sentence without regard to the mandatory minimum " if the court finds at the time of sentencing" certain facts " as determined under the sentencing guidelines . . . ." 18 U.S.C. 3553(f). Those facts include that " the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines . . . ." Id. § 3553(f)(4).

There is no dispute that it is the government's burden to prove a sentencing enhancement under the Guidelines. United States v. Archer, 671 F.3d 149, 161 (2d Cir. 2011). It is also not disputed that the defendant bears the burden of proving his safety-valve eligibility. United States v. Jimenez, 451 F.3d 97, 102 (2d Cir. 2006). The Second Circuit has noted ambiguity as to whether the government or the defendant has the ultimate burden under section 3553(f)(4), but declined to " resolve this burden issue . . . because assuming arguendo that it is the government's burden, that mere fact does not change the quantum of proof required." United States v. Holguin, 436 F.3d 111, 119 (2d Cir. 2006). Each side is held to a preponderance-of-the-evidence standard, and " [w]hether it is

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the government's burden or the defendant's burden is not dispositive." Id.[1]

B. The Criteria for Determining Leadership Status and Their Application to Caballero.

Under the Guidelines, if Caballero acted as an organizer or leader of a conspiracy involving five or more participants, he is subject to a four-level sentencing enhancement. U.S.S.G. § 3B1.1(a). If he was a manager or supervisor, but not an organizer or leader, of such a conspiracy, he is subject to a three-level sentencing enhancement. Id. § 3B1.1(b).

Comment Four to the Guidelines sets forth the following factors for " distinguishing a leadership and organizational role from one of mere management or supervision" : the exercise of decision making authority; the nature of participation in the commission of the offense; the recruitment of accomplices; the claimed right to a larger share of the fruits of the crime; the degree of participation in planning or organizing the offense; the nature and scope of the illegal activity; and the degree of control and authority exercised over others. U.S.S.G. § 3B1.1 cmt. n.4. The Comment continues: " There can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy. This adjustment does not apply to a defendant who merely suggests committing the offense." Id. Similarly, whether an individual has a given title is not controlling, and a court is to consider all of an individual's conduct. Id.

The Second Circuit has relied on the factors set forth in the Comment when distinguishing whether a defendant acted in a leadership role versus a managerial role. See United States v. Gotti, 459 F.3d 296, 348 (2d Cir. 2006); United States v. Gaskin, 364 F.3d 438, 467 (2d Cir. 2004). The Court " must make specific factual findings as to why a particular subsection of § 3B1.1 applies." United States v. Ware, 577 F.3d 442, 451 (2d Cir. 2009); see also Archer, 671 F.3d at 165 (" the district court is required to make specific factual findings regarding either the number of participants or the extent of the criminal activity." ). Even if an individual does not give direct orders to underlings, control or influence over their activities may make him the leader of a criminal scheme. United States v. Batista, 684 F.3d 333, 345-46 (2d Cir. 2012).

In summary orders, the Second Circuit has affirmed leadership enhancements when a defendant " was involved in overseeing the distribution of cocaine" and " recruited and controlled at least one other participant in the drug ring." United States v. Silverio, 118 F.App'x 541, 542 (2d Cir. 2004) (summary order). In Silverio, other participants " acted deferentially" toward the defendant, who also " was in a position in which he could require those distributors to prove to him that the police had in fact seized cocaine the distributors had been given to sell." Id. The Second Circuit has held that a four-level enhancement is appropriate " even if" a defendant " managed only one other participant, not five." United States v. Zichettello, 208 F.3d 72, 107 (2d Cir. 2000).

An individual may be a manager or supervisor if he exercises a lesser degree of control than that of a leader or organizer. The Second Circuit has observed that " [t]he Guidelines do not define the term

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'supervisor,'" but that the Court has held that a defendant acts as manager or supervisor when " he 'exercise[s] some degree of control over others involved in the commission of the offense,'" or has " a significant role" in recruiting or supervising lower-level participants. Ellerby v. United States, 187 F.3d 257, 259 (2d Cir. 1998) (per curiam) (quoting United States v. Liebman, 40 F.3d 544, 548 (2d Cir. 1994)). It has affirmed a three-level enhancement when a defendant acted as an organization's " lieutenant" who " was the person in day-to-day charge of the street-selling aspects of the operation." United States v. Blount, 291 F.3d 201, 217 (2d Cir. 2002). In United States v. Horton, 381 F.App'x 7, 9 (2d Cir. 2010) (summary order), the Second Circuit held that a three-level enhancement was appropriate because the defendant " helped negotiate prices, helped recruit certain co-conspirators, and helped direct the activity of the co-conspirators to some degree."

The Court addresses each factor set forth at comment four of section 3B1.1 as it relates to Caballero's role the heroin conspiracy. It separately addresses the evidence ...

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