Free Sentencing Memorandum - District Court of Connecticut - Connecticut

Case 3:02-cr-00187-CFD

Document 107

Filed 07/07/2005

Page 1 of 9

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA : : : : : : CRIMINAL NO. 3:02CR187(CFD)

v. JOSHUA CORDERO

Date: July 5, 2005

UNITED STATES' FINAL MEMORANDUM IN AID OF SENTENCING During a sentencing hearing conducted on June 28, 2005, the Court requested additional information from the parties relative to the defendant's eligibility for the benefits of the safety valve. This memorandum1 is submitted to address this limited issue. UNDISPUTED FACTS The parties agree that the following facts are not in dispute: 1. The defendant sold a quantity of cocaine base ("crack") to a cooperating witness (CW) on March 5, 2002. The deal took place on Lewis Street in Meriden, Connecticut, near the defendant's residence, which was the third floor apartment at 166 Lewis Avenue. 2. Approximately one hour prior to this transaction, the defendant spoke to the CW on the telephone and told the CW that the drug deal would have to wait until the crack cocaine finished drying.2 PSR at ¶¶ 7-12.

The memo is captioned "final" because the Government inadvertently failed to file a supplemental sentencing memorandum on August 3, 2004 but did file a "third" supplemental sentencing memorandum on March 31, 2005 [Doc. No. 97], which referenced the memorandum never filed with the Court. Thus, with the agreement of the defendant, the Government today files the instant, "final" memorandum as well as the sentencing memorandum authored on or about August 3, 2004 and now entitled "Government's Memorandum Re: Blakely." When crack cocaine is made, it undergoes a process that requires the cocaine powder to dry out after having been immersed in water.
2

1

Case 3:02-cr-00187-CFD

Document 107

Filed 07/07/2005

Page 2 of 9

3. 4. 5.

The defendant stored his crack cocaine at his residence prior to the transaction. The defendant did not bring a firearm with him to the deal on March 5, 2002. The defendant participated in a second crack cocaine deal with the CW on March 7, 2002. During this transaction, the defendant, along with Erik Gonzalez, met the CW in the parking lot of a Stop & Shop in Meriden, Connecticut. PSR at ¶ 17.

6. 7.

Again, the defendant did not have a firearm during the deal on March 7, 2002. On June 25, 2002, law enforcement officials affiliated with an FBI task force arrested the defendant on the strength of an arrest warrant issued relative to the March 2002 crack cocaine transactions. The defendant was advised of his Miranda rights and voluntarily provided a statement to the arresting officers. PSR at ¶¶ 24 & 26. A copy of the FBI's report of this interview is attached as Ex. A. The defendant does not challenge any factual representation in the report.

8.

During the interview of June 25, 2002, the defendant admitted that he was in possession of cocaine in his 3rd floor residence at 166 Lewis Avenue and in the garage to his mother's residence at 136 Lewis Avenue. Further, the defendant admitted that he had received the cocaine two nights earlier from his Mexican suppliers. In this regard, the defendant stated that he typically received one kilogram of cocaine at a time from the Mexican suppliers for $25,000/kilogram. The defendant explained that different Mexican male voices answered the phone when he called to order cocaine, and that during the prior year three to four different Mexican males had made deliveries of cocaine to his residence. PSR at ¶ 26; see also Ex. A.

9.

The defendant also agreed to permit the officers to search his 3rd floor apartment at 166 -2-

Case 3:02-cr-00187-CFD

Document 107

Filed 07/07/2005

Page 3 of 9

Lewis Avenue and the garage to his mother's residence at 136 Lewis Avenue. The officers retrieved two firearms from underneath the defendant's bed. One gun was inoperable -- a .25 caliber Raven automatic, which did not have a firing pin. The other weapon was operable -- a .38 caliber Smith and Wesson that had six rounds in the revolver. 10. The defendant's apartment consisted of four rooms: a kitchen, two bedrooms and a living room. The defendant's bedroom, where the gun was kept, was approximately 30 feet from the kitchen. The officers seized a quantity of cocaine and cocaine base from the defendant's kitchen. 11. The defendant stated to the officers that he maintained the handguns only for the protection of his family, which included a young child. 12. The defendant obtained the operable firearm in early June 2002, after having participated in the March 2002 transactions described above. LEGAL ANALYSIS The question before the court is whether the defendant can establish that he should receive the benefit of the "safety valve" in this case. See U.S.S.G. § 5C1.2; 18 U.S.C. § 3553(f). The parties do not dispute the relevant facts, which are set forth above. Nor does the Government dispute that "a § 2D1.1 gun enhancement and a § 5C1.2 safety valve reduction . . . are not mutually exclusive." See Defendant's Second Supplemental Memorandum In Aid Of Sentencing [Doc. No. 105], at page 3. The Government respectfully submits that while a close call, the defendant is not entitled to the safety valve in this case. First, the court should not read United States v. DeJesus, 219 F.3d 117 (2d Cir. 2000), -3-

Case 3:02-cr-00187-CFD

Document 107

Filed 07/07/2005

Page 4 of 9

which the defendant refers to as a per curiam3 decision, as narrowly as the defendant suggests. In DeJesus, the Second Circuit dismissed an appeal from a guilty plea containing a waiver of appellate rights and, in so doing, determined that the defendant's attorney did not render ineffective assistance of counsel by failing to litigate a safety valve reduction at sentencing. Id. 121-123. The court noted that the ineffective assistance claim failed because the defendant, "who bore the burden of proof under § 5C1.2, see United States v. Ortiz, 136 F.3d 882, 883 (2d Cir. 1997)(per curiam), could not satisfy the criteria set forth in § 3553(f)." Id. at 122. The DeJesus court explained that while it had no reason to question the district court's finding that the defendant was ineligible for safety valve because he had not truthfully provided all information regarding the conspiracy (the fifth criteria), an alternate, perhaps more obvious basis existed for finding the defendant ineligible for the safety valve: "he possessed a weapon `in connection with the offense.'" Id. In DeJesus the defendant argued that although he had received a gun as collateral for a drug debt, this fact did not mean the gun was used to further the drug conspiracy or to protect his drug business. Id. The DeJesus panel rejected as "overly restrictive" the defendant's view of § 5C1, and noted that "[w]e have held that the `in connection with the offense' language of § 5C1.2(2) is equivalent to the `in relation to' language of 18 U.S.C. § 924(c)(1) and, as with that statute, § 5C1.2(2) is satisfied `when the government establishes, by a preponderance of the evidence, that the firearm `served some purpose with respect to' the offense." Id. (citing United States v. Chen, 127 F.3d 286, 291 (2d Cir. 1997)).

A per curiam decisio n is one authored by the court as opposed to a specific member of the panel. The Governm ent is unawa re of any authority that sugge sts that per curiam opinions carry less precedential value than opinions authored by a specific mem ber o f a panel.

3

-4-

Case 3:02-cr-00187-CFD

Document 107

Filed 07/07/2005

Page 5 of 9

In Chen, the defendant stipulated to a two level gun enhancement pursuant to § 2D1.1(b)(1) and then argued that the district court improperly denied him the safety valve. The court in Chen explained that "offense" as used in § 5C1.2's "in connection with the offense" language includes both the offense of conviction and all relevant conduct. Id. at 290. Continuing, the Chen court cited to United States v. Spurgeon, 117 F.3d 641, 643-44 (2d Cir. 1997), which held that the "in connection with" language used in § 2K2.1 -- which is identical to the language used in § 5C1.2 -- was the equivalent to the "in relation to" language of 18 U.S.C. § 924(c)(1). Concluding, the Second Circuit rejected Mr. Chen's claim for the safety valve because the record amply supported the conclusion that the government had established by a preponderance of the evidence that the firearm "served some purpose with respect to" the offense. Id. at 291. The Government in the matter at bar has simply attempted to abide by the Second Circuit's interpretation of the applicable safety valve standards. More specifically, Mr. Cordero has stated that the guns retrieved from his apartment were there for the protection of his family and not to facilitate his drug trafficking activities. But this statement begs the question of why would the defendant need protection? While the defendant may have subjectively feared a general threat of a home invasion, the objective fact remains that the only basis a criminal would have for breaking into the modest, four bedroom apartment of a 20 year old would be to steal narcotics or drug money stored there. Thus, the Government submits that the possession of the firearms was in connection with the drug trafficking offense because it served a very obvious purpose with respect to the offense; viz, that if a rival drug dealer sought to steal the defendant's drug stash, or the large sum of money needed to purchase kilograms of cocaine on a monthly -5-

Case 3:02-cr-00187-CFD

Document 107

Filed 07/07/2005

Page 6 of 9

basis, the defendant would have a means of protecting himself, his ill-gotten gain, and his drug commodity. The Government offers the recent case of United States v. Scott, 2005 WL 990691 (E.D.N.Y., 4/18/05), for this court's consideration. In Scott, the defendant did not carry a firearm on his person when selling narcotics, but rather had constant access to a weapon, which was hidden under a garbage can lid near where Scott sold narcotics. Id. at *1. The defendant advanced two claims in support of his eligibility for the safety valve. First, citing to United States v. Zavalza-Rodriguez, 379 F.3d 1182 (10th Cir. 2004), the defendant argued that only actual possession of a firearm would render him ineligible for the safety valve. Id. The Scott court quickly dismissed this argument, noting that if the law made such a distinction, "savvy narcotics traffickers could remain eligible for the safety valve in the vast majority of cases, notwithstanding their easy access to stashed weapons if needed to protect the narcotics operation or even the traffickers themselves." Id. at *2. Instead, the district court explained that "[t]he analysis under section 5C1.2(a)(2) thus properly focuses on the defendant's conduct. While the defendant's `own conduct' does not include the possession of a firearm by a co-conspirator, it does include selling narcotics where a firearm is readily available for use and kept there expressly to protect both the contraband and those selling the drugs." Id. In the case at bar, Mr. Cordero purchased kilogram quantities of cocaine from a Mexican supply operation for approximately one year, typically purchasing the contraband for $25,000. The Government submits that the firearms became a necessary part of the equation for the defendant to protect himself, his family, and his drug money and cocaine, some of which he stored in his family's residence. -6-

Case 3:02-cr-00187-CFD

Document 107

Filed 07/07/2005

Page 7 of 9

The defendant in Scott also argued that there was no evidence to prove his will or intent to exercise dominion and control over the nearby firearm hidden under the garbage can lid. Id. Here, the district court explained that it "is prepared to conclude on the basis of this evidence that the defendant constructively possessed the firearm in relation to the offense. . . . [But if the defendant] were to convince the court that he never had the intent to exercise dominion and control over the firearm, then the court would conclude that defendant had not possessed a firearm within the meaning of section 5C1.2(a)(2)." Id. The same situation appears to exist in the instant matter. The factual question for this court to determine will be why did Joshua Cordero maintain a revolver under his bed. The question of whether the defendant possessed the firearms in connection with the offense is a close one, but given that the defendant was involved on a monthly basis with purchasing a kilogram of cocaine from a Mexican supply source, and was storing some of the contraband in his apartment, his claim that he possessed a firearm strictly for the protection of his family rings hollow. While the Government does not dispute that the defendant was concern for his family's safety, the question must be answered whether the defendant's monthly kilogram purchases from several Mexican suppliers, coupled with the storage of cocaine and cocaine base in his residence, severely exacerbated the need for protection. The Government submits that these actions by the defendant did create the need for "protection", which came in the form of firearms stashed under

-7-

Case 3:02-cr-00187-CFD

Document 107

Filed 07/07/2005

Page 8 of 9

the bed, and that this was done in connection with the defendant's drug dealing. Thus the Government respectfully recommends that the second criteria of the safety valve has not been satisfied. See e.g., United States v. Gambino, 106 F.3d 1105, 1110 (2d Cir. 1997)("Under the statute, the government must be `afforded the opportunity to make a recommendation' regarding whether the provision's prerequisites have been satisfied. 18 U.S.C. § 3553(f). The plain language of the statute require[s] the district court to make its own determination whether [a defendant] satisfied the safety valve provision, in light of the entire record including the government's recommendation.")(citation omitted). Respectfully submitted, KEVIN J. O'CONNOR UNITED STATES ATTORNEY

MICHAEL J. GUSTAFSON ASSISTANT UNITED STATES ATTORNEY 157 Church Street New Haven, Connecticut 06510 Tel. (203) 821-3700 Federal Bar No. CT01503

-8-

Case 3:02-cr-00187-CFD

Document 107

Filed 07/07/2005

Page 9 of 9

CERTIFICATION OF SERVICE This is to certify that the within and foregoing has been mailed, this _____ day of July, 2005, to: Jon L. Schoenhorn Law Offices Of Jon L. Schoenhorn & Associates 97 Oak St. Hartford, CT 06106 Carmelo Medina Senior USPO United States Probation Office Connecticut Financial Center 157 Church Street, 22nd Floor New Haven, CT 06510

MICHAEL J. GUSTAFSON ASSISTANT UNITED STATES ATTORNEY

-9-