Free Memorandum in Support of Motion - District Court of Connecticut - Connecticut

Case 3:02-cr-00187-CFD

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Filed 07/04/2005

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA VS. JOSHUA CORDERO : : : JULY 5, 2005 NO. 3:02-cr-00187 (CFD)

DEFENDANT'S SECOND SUPPLEMENTAL MEMORANDUM OF LAW IN AID OF SENTENCING The defendant pleaded guilty to one count of possession with intent to distribute and distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). During the June 28, 2005, sentencing hearing before the Court, the issue arose whether Mr. Cordero, despite the presence of one or more firearms1 in his apartment, was, nevertheless, eligible for a "safety valve" departure pursuant to United States Sentencing Guidelines § 5C1.2 and 18 U.S.C. § 3553(f), because said weapons were not found with any narcotics and not possessed in connection with his offense of conviction. Sentencing was continued by the Court until July 7, 2005, to allow the parties the opportunity to research and address the specific question. The defendant now urges the Court to apply the "safety valve" departure to the defendant. While defendant's former counsel initially argued in a March 17, 2004, that the court should "seriously consider granting to Mr. Cordero a sentencing reduction" pursuant to the safety valve provision, that attorney subsequently withdrew his request for departure because of the presence of the firearm. In a recently filed "second" memorandum in aid of sentencing filed by government counsel, it argues that possession of a firearm in his bedroom makes the defendant ineligible because it was possessed "in connection with" the distribution of narcotics. The government cites to United States v. DeJesus, 219 F.3d 117 (2d Cir. 2000) in support of its position. Yet a review of that decision, as well as some of the cases relied upon, suggests that the DeJesus decision is much narrower than the government suggests.

The government concedes that one of the two handguns found under the bed in his bedroom at #166 Lewis Avenue, Meriden, was missing a firing pin and inoperable. The other, a revolver, was in working order.

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A § 5C1.2 safety valve application allows a court to sentence without regard to a statutory minimum if the defendant meets five criteria: (1) "the defendant does not have more than 1 criminal history point . . . "; (2) "the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense"; (3) "the offense did not result in death of serious bodily injury to any person"; (4) "the defendant was not an organizer, leader, manager, or supervisor of others in the offense . . . ; and (5) "the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense . . . " The government concedes that the defendant has met all of the requirements except the second one involving possession of a firearm "in connection with the offense." It has, to a large extent, relied upon cases that discuss USSG § 2D1.1 enhancements for possession of a firearm. However, there are a number of cases that expressly distinguish between a firearm that "was possessed" within the meaning of a USSG § 2D1.1(b) enhancement and § 5C1.1(2)'s language "possess . . . in connection with the offense" which would bar a sentence reduction. These cases also make clear that the determination remains a factual finding by the sentencing court. As a preliminary comment, it is worth noting that the location of the guns in relation to the location of the cocaine is not in dispute. The guns were in the defendant's bed in the bedroom of his apartment at #166 Lewis Avenue, 3rd Floor, Meriden. The cocaine was in the refrigerator in the kitchen. Both were turned over to the agents voluntarily on June 25, 2002, after the defendant was arrested at his mother's residence (#136 Lewis Avenue, Meriden), where the defendant turned over an amount of cocaine stored in his mother's garage. The defendant stressed to the agents, and the government does not contest, that he possessed the handguns "only for the protection of his family" and that there is no evidence that the defendant ever used, brandished, displayed or even carried a weapon in connection with his narcotics trafficking. There is no evidence he ever used or threatened violence in his drug activity. In DeJesus, the Second Circuit held that in order to benefit from the "safety valve" 2

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reduction, the defendant must establish, by a preponderance of the evidence, that the firearm "served some purpose with respect to the offense." Id. at 122. While the defendant agrees with the government's position in its memorandum, p. 8, that the possession of the gun "does not exist in a vacuum," it is also true that the DeJesus decision is narrower than the government's memorandum suggests. In fact, DeJesus was a per curiam decision, dismissing the defendant's appeal from a guilty plea, where the defendant claimed that his waiver of his right to appeal a sentence imposed within the agreed-upon guidelines was invalid. DeJesus also claimed that he was denied effective assistance of counsel because his counsel did not litigate or contest the application of the safety valve issue before sentencing. Id. at 121. The Second Circuit rejected the claim, noting that the district court found that the defendant failed to satisfy another criterion of the safety valve provision; namely, that he truthfully provided all information regarding the conspiracy. The Second Circuit suggested that it would not review that conclusion, and then raised the weapon issue sua sponte, noting that the "[d]efendant admits that he received a gun as collateral for a drug debt." Id. at 122. Because "the firearm in question served as a form of payment in the drug transaction, and thus clearly facilitated the drug conspiracy offense," it was used "in connection with" the drug business. Id. Therefore, the defendant was not eligible for safety valve consideration under any theory. Therefore, the existence of a firearm in another part of an apartment that also contains narcotics was not even an issue addressed in DeJesus. Several cases have expressly addressed the distinction in language between a § 2D.1 gun enhancement and a § 5C1.1 safety valve reduction, finding that they are not mutually exclusive. In United States v. Zavalza-Rodriguez, 379 F.3d 1182 (10th Cir. 2004), the court expressly found that a defendant could be eligible for a § 5C1.1 reduction even if he admitted to possessing a firearm for a § 2D1.1 enhancement. Thus, the court held, that it was possible to refer to the same weapon that "was possessed" by the defendant for purposes of § 2D1.1(b)(1) as a weapon that the defendant did not "possess . . . in connection with the offense" for purposes of § 5C1.2(a)(2), "without any taint of contradiction in the use of `possess.'" Id. at 1185.

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The Zavalza-Rodriguez court also examined the textual distinction between the passive voice, "was possessed" in § 2D1.1(b)(1) (as amended in 1991), with the "active voice" in § 5C1.2(2), mandating that "possession be in `connection with the offense.'" Id. at 1186-87. "Thus, the distinctions between the language of § 2D1.1(b)(1), requiring mere proximity to the weapon, and § 5C1.2(2), requiring active possession, make clear that a closer degree of connection is necessary to preclude application of the safety valve than is necessary for a finding of possession under § 2D1.1(b)(1)." Id. at 1187.2 The Tenth Circuit also noted the difference in evidentiary standards between the two provisions. With regard to § 2D1.1, once the government meets its burden of showing that a weapon "was possessed," the defendant is required to show that it was clearly improbable that a weapon was not connected to the offense. Under § 5C1.2, the defendant must establish by a preponderance of the evidence his eligibility for the safety valve reduction. Relying on the Ninth Circuit opinion in United States v. Nelson, 222 F.3d 545, 551 (9th Cir. 2000) (if defendant establishes that weapons found in house were not connected with marijuana cultivation, then he is eligible for safety valve), the Zavalza-Rodriguez court noted that because the burdens of proof remain different under the two provisions, a defendant "need only demonstrate by a preponderance of the evidence eligibility for the safety valve, whereas the defendant must show that it is clearly improbable that a gun was not used in connection with the offense to avoid the § 2D1.1 sentence enhancement." Id. at 1187. Finally the Zavalza-Rodriguez court held that "the scope of activity covered by § 2D1.1 is broader than the scope of activity covered by § 5C1.2." Id. In United States v. Hernandez, 187 F.3d 806, 808 (8th Cir. 1999), the court affirmed a district court's factual finding that a shotgun found under a mattress in the sleeping compartment of a tractor trailer was unconnected to the defendant's drug trafficking offense, where police

The defendant also notes that the subsection in question, § 5C1.2(2), also refers to "violence" and "credible threats of violence" as grounds to preclude the safety valve, suggesting that something more than mere presence of a firearm somewhere in a dwelling is required to bar a reduction. 4

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discovered some 300 pounds of marijuana "stashed inside a false compartment in the trailer." The defendant claimed that he purchased the gun "only to protect himself during overnight truck driving trips." The appeals court noted that the credibility determination was a matter left strictly to the district court's discretion. See also United States v. Bolka, 355 F.3d 909 (6th Cir. 2004) (§ 2D1.1(b)(1) enhancement does not necessarily foreclose application of a § 5C1.2 "safety valve." Finally, the defendant draws the court's attention to two district court cases from other jurisdictions: United States v. Norris, 277 F.Supp. 2d 189, 195 (E.D.N.Y. 2003), where the district court found that the defendant proved it was "clearly improbable" ­ a higher standard than that required here ­ that a firearm found in a bedroom of the house, while a drug transaction occurred downstairs in the kitchen, was possessed in connection with the drug offense, thereby rejecting a § 2D1.1 enhancement; and United States v. Kyllo, 1996 U.S. Dist. Lexis 14866 (D. Ore. 1996), where the court found that guns found in the defendant's bedroom were unconnected to the drug trafficking offense, where marijuana was found in the attic of an adjacent garage, entitling the defendant to a 5C1.2 safety valve reduction. CONCLUSION For the foregoing reasons, the court is requested to make a finding that the firearms located in the defendant's bed were not possessed in connection with the offense of conviction, and to grant a departure pursuant to U.S.S.G. § 5C1.2, so that the defendant may be sentenced below the 60-month statutory minimum otherwise required. THE DEFENDANT ­ JOSHUA CORDERO

BY:

/s/ Jon L. Schoenhorn Jon L. Schoenhorn (#ct00119) His Attorney Schoenhorn & Associates 97 Oak Street Hartford, CT 06106-1515 (860) 278-3500 (860) 278-6393 (FAX) [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on the above date, a copy of the foregoing document was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the court's electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the court's CM/ECF System. /S/ Jon L. Schoenhorn Jon L. Schoenhorn

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