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United States v. Lobo

United States District Court, S.D. New York

June 30, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
FABIO PORFIRIO LOBO, et al., Defendants.

          OPINION AND ORDER

          LORNA G. SCHOFIELD UNITED STATES DISTRICT JUDGE.

         Defendant Fabio Porfirio Lobo pleaded guilty, without a plea agreement, to one count of conspiring to import into the United States and to manufacture and distribute, intending and knowing that it would be unlawfully imported into the United States, five kilograms or more of cocaine from at least 2009 through July 2014. See 21 U.S.C. §§ 952, 959, 960, 963. It is undisputed that the conspiracy involved more than 450 kilograms of cocaine, which results in a base offense level of 38 under U.S.S.G. § 2D1.1(c)(1), and that Defendant has a Criminal History Category of I.

         Defendant challenges four proposed sentencing enhancements to the offense level:

(1) a three-level enhancement pursuant to U.S.S.G. § 3B1.1(b) on the basis that Defendant was a manager or supervisor in a criminal activity that involved five or more participants or was otherwise extensive;
(2) a two-level enhancement pursuant to U.S.S.G § 2D1.1(b)(15)(C) on the basis that the aggravating-role adjustment is appropriate under § 3B1.1(b), and Defendant was directly involved in the importation of cocaine;
(3) a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) on the basis that dangerous weapons (e.g., firearms) were possessed; and
(4) a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(11) on the basis that Defendant bribed, or attempted to bribe, a Honduran law enforcement officer to facilitate the commission of the offense.

         In its post-hearing submissions, the Government challenges the applicability of a three-level reduction pursuant to U.S.S.G. § 3E1.1 for acceptance of responsibility. The Government also seeks an order of forfeiture in the amount of $326, 667 pursuant to 21 U.S.C. §§ 853(a), 970. Lobo argues that the three-level reduction is appropriate and that the forfeiture amount, if any, should not exceed $50, 000.

         On March 6 and 16, 2017, the Court held a hearing pursuant to United States v. Fatico, 579 F.2d 707 (2d Cir. 1978), to resolve disputed facts relevant to Lobo's sentencing. The Court's findings regarding the enhancements, the acceptance-of-responsibility reduction and the amount of forfeiture are stated below.

         I. BACKGROUND

         The sole witness at the hearing was Devis Leonel Rivera Maradiaga (“Rivera”), who was a leader of the Honduran drug trafficking organization, the Cachiros. Rivera testified that, after Defendant's father became President of Honduras in 2010, Defendant provided security and logistical support to the Cachiros in connection with two separate multi-hundred-kilogram shipments of cocaine. Rivera also testified that he and his brother established several front companies and that, with Defendant's assistance, he paid bribes in exchange for Honduran government entities' issuing contracts to one of those front companies. In addition, Rivera testified that he paid Defendant money for information that helped the Cachiros avoid seizure of their assets by the Honduran government. The Government introduced as exhibits transcripts of recordings made between 2013 and 2015 of conversations involving Defendant and either Rivera, who had begun cooperating with the DEA in 2013, or other confidential sources. In the recordings, Defendant agrees to offer assistance for what he was told was a shipment of 2, 500 kilograms of cocaine.

         II. STANDARD

         “The Government bears the burden of proving the facts supporting the application of a Guidelines provision, and it must do so by a preponderance of the evidence.” United States v. Kent, 821 F.3d 362, 368 (2d Cir. 2016). Similarly, the Government must prove the amount of proceeds relevant to forfeiture by a preponderance of the evidence. See United States v. Roberts, 660 F.3d 149, 165 (2d Cir. 2011). The Federal Rules of Evidence do not apply at sentencing proceedings, United States v. Gushlak, 728 F.3d 184, 197 n.10 (2d Cir. 2013) (citing Fed.R.Evid. 1101(d)(3)), and a court may consider any relevant information, “provided that the information has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a); see United States v. Juwa, 508 F.3d 694, 701 (2d Cir. 2007) (“[F]actual matters considered as a basis for sentence must have some minimal indicium of reliability beyond mere allegation.” (internal quotation marks omitted)); accord United States v. Scott, 614 F. App'x 567, 569 (2d Cir. 2015) (summary order).

         III. DISCUSSION

         Considering the entire record, the Government has carried its burden to prove facts sufficient to support the sentencing enhancements at issue by a preponderance of the evidence, except for the bribery enhancement under § 2D1.1(b)(11). Defendant has clearly demonstrated acceptance of responsibility under § 3E1.1(a). As for the order of forfeiture, the Government has carried its burden to justify a money judgment in the amount of $266, 667, rather than the $326, 667 sought.

         A. Credibility of Rivera

         The Court finds Rivera credible in light of the entirety of the record and observations of his tone, demeanor and straightforward answers. Defense counsel's cross-examination failed to undermine Rivera's credibility as to key portions of his testimony, especially regarding Defendant's involvement in the two ...


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