U.S. v. Bencosme

Full title: UNITED STATES OF AMERICA, v. ERNESTO BENCOSME, Defendant

Court: United States District Court, S.D. New York

Date published: Dec 15, 2005

97 CR 835 (HB) (S.D.N.Y. Dec. 15, 2005)

Opinion

97 CR 835 (HB).

December 15, 2005

OPINION ORDER

HAROLD BAER JR., District Judge

On August 26, 2005 the Second Circuit remanded the above captioned case to this Court to determine whether Defendant Ernesto Bencosme ("Bencosme") should be re-sentenced in light ofUnited States v. Booker, ___ U.S. ___; 125 S. Ct. 738 (2005) and United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). This Court has considered all materials submitted by Bencosme and the Government, and declines to impose a different sentence.

I. BACKGROUND

On December 29, 1997, pursuant to a cooperation agreement, Bencosme pled guilty to two counts of conspiracy to distribute narcotics¹ and one count of money laundering.² The presentence report prepared for Bencosme's sentencing calculated his offense level at 36, which, combined with a criminal history category of IV, produced a corresponding Guidelines range of 262 to 367 months. The Government, however, provided a "5K1"³ letter on behalf of Bencosme, and I downwardly departed, reducing Bencosme's sentence by half to 131 months. Bencosme appealed his sentence, and the Second Circuit remanded the case due to an error in the calculation of the adjusted offense level. (Dckt. # 37.)

1 21 U.S.C. § 846.

2 18 U.S.C. § 1956(h).

3 U.S.S.G. § 5K1.1.

On remand, I acknowledged that I had indeed relied on a miscalculated presentence report, and found that Bencosme's proper offense level was thirty-five. (Sentencing Tr. 7/24/03 at 28.) Bencosme's applicable Guidelines range was 235 to 293 months and, taking into account the Government's 5K1 letter, I sentenced Bencosme to 120 months. During this proceeding, I asked the Government whether a section 3553(e) motion had been filed, which would have allowed this Court to sentence the defendant below the statutory minimum of 120 months. The Government incorrectly stated that no such motion had been filed, and I sentenced Bencosme to 120 months. (Dckt. # 39.)

After the Government realized its error, a second re-sentencing was held eight months later. Nonetheless, I declined to impose a different sentence. Bencosme had already received a significant departure from the applicable Guidelines range despite the Government's tepid 5K1 letter. (See Sentencing Tr. 3/18/04 at 21). Bencosme appealed this Court's denial of a further reduction and, while his appeal was sub judice, United States v. Booker, ___ U.S. ___; 125 S. Ct. 738 (2005) and United States v. Crosby, 397 F.3d 103 (2d Cir. 2005) were decided. The sentence was remanded once again to this Court so that I could determine whether to re-sentence Bencosme in light of these holdings.

II. DISCUSSION

Because a sentence that departs from the Guidelines range is nonetheless a Guidelines sentence, I must determine whether I would have imposed a different sentence in light of Booker andCrosby. Crosby, 397 F.3d at 112 n. 9 (stating that a downward departure is "not a sentence within the applicable Guidelines range, but it [is] nonetheless a `Guidelines sentence'"). Bencosme fails to articulate, however, a proper basis for re-sentencing.⁴ Re-sentencing is appropriate only if a nontrivially different sentence would have been imposed had the Court believed that it was not constrained to follow the Guidelines. Crosby, 397 F.3d at 118; United States v. D'Oliveira, 402 F.3d 130, 133 (2d Cir. 2005) ("Crosby teaches that in cases to which the Supreme Court's decision in Booker applies, we should remand for determination by the sentencing judge whether a materially different sentence would have been imposed if at the time of sentencing the Guidelines had been advisory. . . .").

4 Bencosme argues that he should receive greater credit for his cooperation with the Government. In addition, Bencosme has asserted that his son was killed due to Bencosme's cooperation. Bencosme's cooperation did not lead to the arrests or prosecutions of any persons. (Government's Memorandum, dated 10/20/05, at 9.) Furthermore, the Government was never apprised of the danger Bencosme's son faced in Venenzuela, and there is no basis to believe that his son's unfortunate death was the result of Bencosme's cooperation. (Sentencing Tr. 3/18/04 at 11-12.)

In this case, consideration of the factors set forth in 18 U.S.C. § 3553(a) would not have resulted in a materially different sentence. Crosby, 397 F.3d at 110 (stating that the factors set forth in section 3553(a) should guide courts in determining whether a Guidelines sentence was reasonable). The factors set forth in section 3553(a) include, inter alia, the nature and circumstances of the offense, the criminal history of the defendant, and the goal of deterrence. In the instant case, Bencosme pled guilty to conspiring to distribute over 1,000 kilograms of cocaine and over 100 kilograms of heroin, and to laundering approximately $4.2 million in drug proceeds. Moreover, Bencosme's cooperation was marginal, since he was not fully forthcoming and his assistance did not lead to any arrests. (See Sentencing Tr. 3/18/04 at 9.) Bencosme also argues that I should consider the fact that he pled to charges for which he would not have been prosecuted but for the information that he provided to the Government. This, of course, is the nature of a cooperation agreement. I already reduced Bencosme's sentence by over 115 months — almost a 50% reduction. After consideration of the factors listed in 18 U.S.C. § 3553(a), I must conclude that no further reduction would be appropriate and thus resentencing of the defendant would be inappropriate.

III. CONCLUSION

For the foregoing reasons, this Court declines to re-sentence the defendant. The Clerk of the Court is instructed to close this motion and to remove this case from my docket.

SO ORDERED.