Opinion
S-3 99 Cr. 842(RPP).
November 1, 2000.
Mary Jo White, United States Attorney for the Southern District of New York, New York, NY.
Law Office of David Zapp, Leonia, N.J. for Defendant.
OPINION AND ORDER
On April 18, 2000, Defendant Santiago Wong was convicted by a jury of conspiracy to distribute and possess with intent to distribute controlled substances (cocaine and crack) from approximately 1992 to October of 1998 in violation of 21 U.S.C. § 846 ("count one") and of making the building at 601 West 140th Street available for the storage and distribution of controlled substances (cocaine) from approximately 1992 to October of 1998 in violation of 21 U.S.C. § 856 and 18 U.S.C. § 2 ("count two"). Defendant now moves for a downward departure from the recommended sentence under the United States Sentencing Guidelines based on the government's calculation that the conspiracy involved 1.5 kilograms of crack and 150 kilograms of powder cocaine.
The United States Probation Office prepared a Presentence Investigation report, including the recommendation and addendum, dated August 18, 2000, which found, under the Sentencing Guidelines, a Criminal History Category of 1 and a total offense level of 35 requiring that required a custodial sentence of 168 to 210 months. The Presentence Investigation report recommended a departure to imprisonment of 135 months followed by the mandatory minimum of five years' supervised release.
On October 26, 2000, the Court advised the parties that it had concluded that the sentencing calculation utilized in the Presentence Report resulted in a sentence that was much more severe than warranted.
The Presentence Report relied on important factual errors supplied by the prosecution, which led the Presentence Report in turn to utilize the quantity of drugs which were the subject of the narcotics conspiracy in calculating the offense level. First, the Presentence Report states that Defendant "repair[ed] a trap in the apartment that was used to store narcotics." (Presentence Investigatory Rept. ¶ 9(b)). However, the government conceded on October 26, 2000, that there was no testimony at trial that Defendant repaired a trap in any apartment. (Letter from David B. Anders/Robert H. Hoyt, dated October 26, 2000, at 1; Transcript ("Tr.") at 203, 753-54.) Second, the Presentence Report states that Defendant "told other members of the conspiracy that they could leave suitcases filled with cocaine in his apartment" and that he "assisted drug dealers [to] move a shipment of cocaine through the basement of the apartment building." (See Presentence Investigatory Rept. ¶¶ 9(b), 17.) To the contrary, the testimony at trial shows that Defendant only watched as the conspiracy members carrying two gym-bag style suitcases entered the building through a basement door that was open and then brought the bags upstairs to store in their traps. (Tr. at 753-54, 674-76.) The parties agree that there was no evidence that Defendant knew what was in the bags, that Defendant ever told the drug dealers they could leave the suitcases in his apartment, or that the bags were in fact ever left in Defendant's apartment. Accordingly, there is no evidence that Defendant manufactured, distributed, sold or possessed narcotics, only that he had knowledge that the conspiracy to possess and distribute cocaine did operate in the building. The evidence by which Defendant was convicted at trial is most consistent with a violation of 21 U.S.C. § 856, not 21 U.S.C. § 846.
Upon being advised of the inaccuracies in the Presentence Report, the Probation Office has agreed that sentencing under 21 U.S.C. § 856(a)(2) is proper.
Discussion
In U.S.S.G. § lB1.2, courts are instructed to determine the offense guideline section most applicable to the offense of conviction and are directed to consult Appendix A to the Guidelines Manual for a list of guidelines that correspond to the statute of conviction. See U.S.S.G. § lB 1.2(a) Application Note 1. In an "atypical case" the court is instructed to use the guideline "most applicable to the nature of the offense conduct charged." See U.S.S.G. Manual, Appendix A, Introduction. Each guideline is intended to carve out a "heartland" embodying conduct typical of the offense. See U.S.S.G. Manual, Ch. 1, Pt. A, intro. § 4(b). In atypical cases, the sentencing court must perform a "heartland" analysis to determine whether it is "unusual enough for it to fall outside the heartland of cases in the Guideline." Koon v. United States, 518 U.S. 81, 98 (1996).
"A sentencing court may be required to perform a 'heartland' analysis in two different circumstances — the first, during the initial choice of the appropriate guideline; the second, in the context of a departure request. "United States v. Smith, 161 F.3d 290, 298 (3rd Cir. 1999). In United States v. Smith, the Third Circuit found that the "heartland" of the sentencing guidelines for money laundering is activity connected with extensive drug trafficking and serious crime, which was not applicable to the conduct of the defendant in that case. United States v. Smith, 298 161 F.3d at 300. The court vacated the defendant's sentence under the money laundering guideline and directed the sentencing court to use the fraud loss table instead. Id. The Third Circuit noted in United States v. Smith that even though the defendant's conduct was sufficient for a jury to convict him of money laundering, the defendant's conduct was not within the heartland of the money laundering guideline for sentencing purposes. See id. at 300. Rather, the "root of the defendants' activity" was fraud, and the circuit court directed the sentencing court to use the fraud table in sentencing. Id.
This Court also rejected use of the money laundering guideline in favor of the heartland of the fraud guidelines in an embezzlement case not involving narcotics or serious crime. See United States v. Malfrici, No. 92 Cr. 1049 (RPP), 1993 WL 127196 (S.D.N.Y. April 21, 1993).
Here, defendant's conduct is outside the "heartland" of 21 U.S.C. § 846, which prohibits conspiring to manufacture, distribute, dispense or possess controlled substances. Rather, the root of defendant's conduct is more consistent with 21 U.S.C. § 856, which makes it unlawful to "manage or control any building, room, or enclosure, either as owner, lessee, agent, employee, or mortgagee, and knowingly and intentionally rent, lease, or make available for use, with or without compensation, the building, room, or enclosure for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance." 21 U.S.C. § 856 (a)(2).
Wong was the superintendent of the building out of which the conspiracy operated. Defendant never himself participated in the manufacture, distribution or sale of narcotics. There was no evidence to show that Defendant ever manufactured, possessed, distributed or took part in the distribution of a controlled substance. Additionally, while Defendant knew that residents in the building were selling drugs, there was no evidence that he knew the type or quantity of drugs sold by the conspiracy. Defendant's involvement was limited to being paid small sums of money over several years for allowing the use of the building "for the purpose of unlawfully manufacturing, storing and distributing a controlled substance." Defendant did not advise police of the drug dealers' activities and he told the drug dealers of police inquiries, but he never participated in the manufacture, distribution or sale of narcotics. Thus Defendant's conduct is more consistent with the "heartland" of 21 U.S.C. § 856, since he knowingly allowed the premises to be used for narcotics purposes with compensation, than it is with 21 U.S.C. § 846, under which it is unlawful to conspire to manufacture, distribute, dispense or possess controlled substances.
Congress authorized severe sentences for those dealing in large quantities of narcotics in order to provide justified punishments for "stereotypical drug dealer[s]," which Congress described in congressional debate as those who "live in the fast lane . . . drive big cars — usually several — like BMWs and Mercedeses . . . [and] like . . . big gold chains and big gold [and] diamond rings." United States v. Genao, 831 F. Supp. 246, 247 (S.D.N.Y. 1993), aff'd sub nom United States v. Lara, 47 F.3d 60 (2d Cir. 1995) (quoting 134 Cong. Rec. S3127 (1988) (remarks of Senator Graham)). Here, Defendant is not the kind of offender this Court believes Congress contemplated sentencing in connection with the quantities of narcotics involved in this case. Accordingly, he should not be sentenced as if he were. Defendant, an immigrant from Peru who speaks little English, has had no prior criminal involvement. Defendant is 57 years old and has raised five children. He worked steadily as a superintendent for the fourteen years before his arrest and prior to that was employed as a licensed plumber.
Defendant's case differs significantly from the day-to-day cases that this Court encounters with regard to large-scale narcotics conspiracies. This atypicality leads the Court to conclude, after carefully weighing the totality of the circumstances, that Defendant's behavior is out of the heartland of 21 U.S.C. § 846. The root of Defendant's activity lies in count two, pursuant to 21 U.S.C. § 856, in that he allowed the building for which he was the superintendent to be used as a "drug house." Accordingly, the more appropriate guideline is U.S.S.G. § 2D1.8, entitled "Renting or Managing a Drug Establishment; Attempt or Conspiracy." See U.S.S.G. § 2D1.8.
The government, by letter dated October 31, 2000, does not agree that sentencing pursuant to U.S.S.G. § 2D1.8(a)(2) is proper on the ground that Defendant participated in the underlying narcotics offense by accepting cash payments. InUnited States v. Dickerson, 195 F.3d 183 (10th Cir. 1999), the Tenth Circuit upheld the district court's decision not to apply U.S.S.G. § 2D1.8 because of participation in the underlying controlled substance offense. In that case, the defendant was found to be in possession of crack cocaine at the time of his arrest and police found additional crack cocaine, cash, marijuana, and a mobile phone in a bedroom where other evidence indicated it belonged to the defendant. Id. There are no similar facts in this case, and 21 U.S.C. § 856 contemplates Defendant's acceptance of cash payments.
Pursuant to Section 2D1.2(a)(2)
[i]f the defendant had no participation in the underlying controlled substance offense other than allowing use of the premises, the offense level shall be 4 levels less than the underlying controlled substance offense, but not greater than level 16.
U.S.S.G. § 2D1.8(a)(2). No party suggests that any of the exceptions set forth in Application Note 1 apply.
Furthermore, the use of U.S.S.G. § 2D1.1, as recommended in the Presentence Report, would require speculation as to the type and quantity of drugs reasonably foreseeable to the Defendant since there is no evidence in the record sufficient to make a definitive conclusion in that regard. See U.S.S.G. § lB1.3, Application Note 2(ii); see also United States v. Chalarca, 95 F.3d 239, 245 (2d Cir. 1996) (upholding a downward departure when the district court found the defendant had no knowledge of any particular quantity of cocaine and no particular quantity was foreseeable to him in connection with the conspiracy of which he was a member). Departure for minimal participation is contemplated by the Guidelines but is limited to four points which is insufficient in this case. No other departures are applicable here.
As the court said in United States v. Kuku, 129 F.3d 1435, 1440 (11th Cir. 1997), "strict focus on the technicalities of the sentencing process obscures the overarching directive to match the guideline to the offense conduct." Given the totality of the circumstances in this atypical case, the "heartland" of Defendant's conduct is not consistent with sentencing under 21 U.S.C. § 846. Instead, the root of defendant's conduct requires sentencing under 21 U.S.C. § 856 and the corresponding U.S.S.G. § 2D1.8. Accordingly, the Court will sentence the Defendant pursuant to U.S.S.G. § 2D1.8(a)(2). No deduction will be allowed for Defendant's compliance with U.S.S.G. § 5C1.2 or 18 U.S.C. § 3553(f)(1)-(5) as those provisions do not apply to sentences pursuant to 21 U.S.C. § 856. Nor is a deduction allowed for acceptance of responsibility. Since the Defendant is in Criminal History Category I, the sentencing range is 21 — 27 months.
IT IS SO ORDERED.