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UNITED STATES v. ALBERTO-GENAO

October 2, 1998

UNITED STATES OF AMERICA
v.
RAMON ALBERTO-GENAO



The opinion of the court was delivered by: FRIEDMAN

This matter is before the Court for sentencing. As a result of various motions and pleadings filed by counsel for the defendant, letters submitted directly to the Court by the defendant and arguments and representations made in open court by counsel for the parties (and by the defendant personally), there are now three issues before the Court that must be resolved before sentence is imposed: (1) whether the defendant was a "minor participant" in the transportation of the almost 20 kilograms of cocaine for which he was convicted, as that phrase was intended and has been interpreted under Section 3B1.2 of the United States Sentencing Guidelines; (2) whether the defendant is eligible for consideration under the so-called "safety valve" provision of the Guidelines, Section 5C1.2; and (3) whether the defendant has "demonstrated acceptance of responsibility," qualifying him for a two or (possibly) three point reduction in his offense level under Section 3E1.1 of the Guidelines.

 I. BACKGROUND

 The defendant, Ramon Alberto Genao, was arrested on July 19, 1995 when police searched luggage in a train compartment occupied by Mr. Genao and his two companions, Felipe Soto and Janice Rosado, and found nearly 20 kilograms of cocaine. Mr. Genao, Mr. Soto and Ms. Rosado were charged with possession with intent to distribute cocaine. After their trial, Mr. Soto and Ms. Rosado were both acquitted by a jury. At Mr. Genao's first trial, which was separate from that of Mr. Soto and Ms. Rosado, the jury deadlocked and the Court declared a mistrial. Both Mr. Soto and Ms. Rosado testified at that trial. The government elected to try Mr. Genao again but did not call Mr. Soto or Ms. Rosado as witnesses at the second trial.

 After hearing the evidence concerning Mr. Genao's trip by train with Mr. Soto and Ms. Rosado from Miami en route to New York with nearly 20 kilograms of cocaine, the jury convicted him of possession with intent to distribute cocaine. At both trials, Mr. Genao's primary defense was that the drugs were not his and that he didn't know anything about them. He testified at his first but not at his second trial. At all three trials, the jury heard evidence that Mr. Genao made statements to the police both on the train and at the police station to the effect that neither Mr. Soto nor Ms. Rosado was involved in the transportation of the cocaine and that the drugs belonged to him.

 II. DISCUSSION

 A. The Sentencing Guidelines

 Under the Sentencing Guidelines, the guideline sentence in a narcotics case is determined primarily by the amount of drugs involved. In this case, the evidence at trial was that the defendant transported nearly 20 kilograms of powder cocaine from Miami en route to New York with the intent to distribute it. Under Section 2D1.1(c) of the Guidelines, the base offense level for possession of powder cocaine with intent to distribute is Level 34 if the amount of powder cocaine involved is more than 15 but less than 50 grams, as it was here. See U.S.S.G. § 2D1.1(c)(3). The Probation Officer, in preparing the Presentence Investigation Report, concluded that no upward or downward adjustments were appropriate for the defendant's role in the offense under Chapter Three, Part B, of the Sentencing Guidelines. He also concluded that no downward adjustment for acceptance of responsibility was appropriate under Section 3E1.1 because the defendant denied his guilt at trial, in a personal interview with the Probation Office and in a letter he wrote to the Probation Officer. The defendant, who is 33 years old, has no prior convictions. As a result, he has a criminal history score of zero which puts him in Criminal History Category I. With a total offense level of 34 and a Criminal History Category of I, the guideline sentencing range is 151 to 188 months. Before imposing sentence, therefore, the Court must consider the three matters raised by the defendant or his counsel. *fn1"

 B. Minor Participant

 Under Section 3B1.2 of the Sentencing Guidelines, a court may decrease the offense level by two levels if it finds that the defendant was "a minor participant" in the criminal activity. A minor participant is defined as "any participant who is less culpable than most other defendants but whose role could not be described as minimal." See U.S.S.G. § 3B1.2, Application Note 3. *fn2" The defendant argues that he was a minor participant (if he was a participant at all) in the transportation of almost 20 kilograms of cocaine because he was less culpable than others. While he first argues that he was less culpable than Mr. Soto, his primary argument in this regard is that he was at most only a courier bringing drugs from Miami to New York at the behest of another or others who were not defendants in any of the trials before this Court and that he was a minor participant compared to those others.

 Even assuming that Mr. Genao was a courier for another, this is not enough to make him a "minor participant" in the criminal activity with which he was charged. Our court of appeals has already ruled that a defendant's status as a courier, by itself, is not enough to support a finding that he was a "minor participant." See United States v. Caballero, 290 U.S. App. D.C. 235, 936 F.2d 1292, 1299 (D.C. Cir. 1991), cert. denied, 502 U.S. 1061, 117 L. Ed. 2d 113, 112 S. Ct. 943 (1992). The Guidelines use as an example of a "minimal participant" a person who "played no other role in a very large drug smuggling operation than to offload part of a single marihuana shipment, or in a case where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs." U.S.S.G. § 3B1.2, Application Note 2 (emphasis added). As the court of appeals pointed out in its consideration of the "minor participant" definition, however, "a courier can play as active and culpable a part in a drug offense as another participant, whether or not that participant is another courier." United States v. Caballero, 936 F.2d at 1299. The "application of Section 3B1.2 is inherently fact-bound and is largely committed to the discretion of the trial judge." Id.

 In this case, the evidence at trial was that Mr. Genao was the leader among the three individuals who made the trip from Miami to New York, and he volunteered to the police on several occasions that this was his deal and that he bore responsibility for this large, nearly 20-kilogram drug shipment. He also told an interviewing detective that he was not even supposed to be on the train coming back from Miami with Mr. Soto and Ms. Rosado but was supposed to have flown back by himself, the kind of arrangement that an organizer or leader of a drug deal would likely make in order to avoid being personally in possession of the drugs if there were an arrest. Furthermore, all of the luggage in which the cocaine was found was Mr. Genao's, not Mr. Soto's, Mr. Genao had the key to those pieces of luggage that were locked, and the luggage was on his and Ms. Rosado's side of the train compartment, not Mr. Soto's. The evidence at trial clearly portrayed Mr. Genao as having far greater culpability than either Mr. Soto or Ms. Rosado.

 As for the probability that there was a "drug kingpin" and intermediate distributors somewhere who engaged Mr. Genao to pick up the drugs in Miami and arrange for their transportation to New York, it is not appropriate under Caballero, the Guidelines or the application notes, to contrast the assumed conduct of an unknown "kingpin" with the courier then on trial. Under Caballero, courier status alone is not enough, and trial courts are to analyze the facts and circumstances of a defendant's conduct to determine his role in the offense charged. It would trivialize and pervert the minor participant Guideline to disregard what the jury reasonably found to be the defendant's significant and knowing and willful role in the acquisition and transportation of this large amount of cocaine with a street value of approximately five million dollars. So far as all the evidence shows, Mr. Genao simply was not the low person on the totem pole; he is a far cry from the one time courier in a single transaction involving a small amount of drugs. See United States v. Caballero, 936 F.2d at 1297-1300.

 C. Safety Valve

 At the sentencing hearing on July 29, 1998, the Court on its own raised the question of whether Mr. Genao was eligible for safety valve consideration under Section 5C1.2 of the Sentencing Guidelines, a matter that he and his counsel had not presented in their sentencing memorandum. If Mr. Genao were eligible for the safety valve, the Court could depart downward two levels from Offense Level 34 to Offense Level 32 (121-151 months instead of 151-188 months). See U.S.S.G. §§ 2D1.1b(6) and 5C1.2. *fn3" Despite the large quantity of narcotics involved in this case, the defendant has zero criminal history points, he did not use violence or the threat of violence or possess a firearm or weapon in connection with this ...


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