Opinion
CRIMINAL ACTION NO. 99CR10172-GAO.
October 23, 2001
SENTENCING MEMORANDUM
On February 23, 2001, the defendant pled guilty to conspiracy to possess with the intent to distribute, or to distribute, heroin, in violation of 21 U.S.C. § 846, and to conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). He appeared for sentencing before the Court on October 17, 2001. At the sentencing hearing, the Court heard the parties with respect to several issues affecting the calculation of the appropriate sentencing range under the United States Sentencing Guidelines and, after hearing, resolved those issues on the grounds stated on the record in open court. This memorandum further explains this Court's sentencing decisions.
I. OFFENSE LEVEL
A. Drug Quantity to be Attributed to Cyr
The base offense level for the drug conspiracy conviction is determined by reference to the table set forth in U.S.S.G. § 2D1.1(c). In the plea agreement between Cyr and the government, the parties agreed to take the position that he should be held responsible for between 3 and 10 kilograms of heroin, calling for a base offense level of 34. § 2D1.1(c)(3). The presentence report (PSR) prepared by the probation office, however, attributed between 10 and 30 kilograms to Cyr. That quantity would call for a base offense level of 36. § 2D1.1(c)(2).
A participant in a drug conspiracy is responsible not only for the quantity of drugs he actually handled or saw but also for the full quantity of drugs that he reasonably could have foreseen to be embraced by the conspiracy he joined. See United States v. Rodriguez, 162 F.3d 135, 149 (1st Cir. 1998); United States v. De La Cruz, 996 F.2d 1307, 1314 (1st Cir. 1993). See also U.S.S.G. § 1B1.3(a) and n. 2. With respect to this defendant, then, the question is not what quantity of heroin he personally handled, but what he knew — or reasonably foresaw — about the quantities being handled in the conspiracy in which he voluntarily participated. Judgments about the quantity of drugs that were reasonably foreseeable to a participant in a distribution conspiracy must normally be based on estimates and inferences, rather than on direct evidence permitting the summing of all the actual transactions engaged in by the conspirators.
I adopt the statement of relevant offense conduct set forth in the PSR. The defendant raised some minor objections to the statement, most of which are immaterial. One arguably material objection is to the PSR's characterization of Cyr as the "right hand man" of the leader of the conspiracy, John Damien. Based on the facts in the statement of offense conduct as a whole, I find that characterization to be appropriate. Cyr was one of the few confederates permitted by Damien to have intimate knowledge of his drug-dealing activities. Cyr arranged for one of the central storage and preparation sites for the heroin trafficking, his mother's condominium. He took part in supervising the concealment and preparation of heroin at that location. I find that Cyr was a close and well informed lieutenant of Damien's. This finding is further supported by the parties' stipulation in the plea agreement, that Cyr merits an upward adjustment of the offense level under § 3B1.1(b) for his supervisory role in the conspiracy. I conclude that it was reasonably foreseeable to Cyr that the conspiracy in which he acknowledged participation involved a quantity of heroin within the range of 10 to 30 kilograms, as proposed by the PSR.
Cyr's own statements to investigators about Damien's purchases of drugs from suppliers are consistent with this range. He estimated that over a year's time Damien purchased 200 grams of heroin every two to three weeks from one supplier. That would amount to between approximately 3400 and 5200 grams from that one supplier on an annual basis. Cyr also said that from a different supplier Damien bought 20-30 grams two or three times a week, or between 40 and 90 grams a week, for about a year. That would annualize to between 2080 grams (20 grams twice a week) and 4680 grams (30 grams three times a week). Cumulating these estimates of purchases by Damien from alternate sources would lead to an estimated range of about 5480 grams on the low end and 9880 on the high end. See PSR ¶ 10.
The indictment alleges that the conspiracy began at least by August, 1997, and continued into May, 1999, a period of about seventeen months. Moreover, Cyr argued that his participation in the conspiracy actually extended back to 1996. If the quantitative estimates that Cyr made for one year are extrapolated to cover a conspiracy spanning two to three years, perhaps more, then it was foreseeable to Cyr that the conspiracy involved amounts in the 10 to 30 kilogram range.
Cyr objected to the PSR's proposed assignment of criminal history points for two convictions for possession of heroin with intent to distribute, arising from arrests in July and September 1996. He contended, and the Court agreed, that these convictions could not be counted as "prior sentences" for purposes of assessing criminal history points because they were part of the offense conduct of the instant offense. See U.S.S.G. § 4A1.2(a)(1) and n. 1. See also PSR ¶ 12.
Moreover, Damien, the leader of the conspiracy, acknowledged in his own plea agreement that he should be held responsible for 10 to 30 kilograms. Damien's acknowledgment is not binding on Cyr, of course, but it is evidence that tends to corroborate the estimates that are based on Cyr's own statements. Further corroboration comes from another conspirator, Jose Cordero, who estimated that Damien purchased more than 10 kilograms from one particular supplier. See PSR ¶ 10.
There is no information in the statement of relevant offense conduct that tends to minimize what was foreseeable to Cyr. He argues that he was ill and incapacitated for part of the duration of the conspiracy, and therefore, being "out of the loop" as it were, should not be held responsible for the full quantity of the heroin handled by the conspiracy. But such arguments rest on the faulty assumption that for purposes of assigning an appropriate offense level only those transactions in which he actively participated should count. Even if there was a hiatus in his active participation in transactions, under the guideline he is still to be held responsible for the quantity handled by his coconspirators that was reasonably foreseeable to him. He was well informed about the scope of Damien's drug activities, and I am satisfied that he reasonably foresaw that the conspiracy involved an amount of heroin between 10 and 30 kilograms.
Accordingly, I conclude that it is appropriate to hold Cyr responsible for between 10 and 30 kilograms, and thus to assign a base offense level of 36.
B. Adjustment and Total Offense Level
The PSR recommends an upward adjustment of three levels pursuant to U.S.S.G. § 3B1.1(b), because Cyr was a supervisor in criminal activity involving five or more persons. In the plea agreement, the parties agreed that such an adjustment was appropriate. The statement of offense conduct indicates that Cyr was in charge of the heroin ring when Damien was "on vacation," and that he (Cyr) supervised at least one other codefendant's activities in support of the conspiracy. See PSR ¶ 16. On this basis, I conclude that the proposed three-level upward adjustment is appropriate.
The parties and the PSR all agree that Cyr should get a downward adjustment of 3 levels in recognition of his acceptance of responsibility, see U.S.S.G. § 3E1.1, and I concur with that adjustment.
There are no other appropriate adjustments to be made to the offense level. The total offense level after adjustments, therefore, is 36.
The PSR, properly, sets forth a separate offense level calculation for the other offense of conviction, conspiracy to commit money laundering. That calculation, which I find to be correct, yields an offense level for that conviction of 24. Under the grouping rules of the Guidelines, however, the offense level for the money laundering conspiracy had no effect on the total offense level, which is in this case completely governed by the drug conspiracy count.
II. CRIMINAL HISTORY CATEGORY
A. The Prior Heroin and Xanax Offenses
Cyr's criminal record includes two convictions for heroin offenses committed in 1996. On February 7, 1997, he was convicted in the Somerville District Court of possession of heroin with intent to distribute and sentenced to two years in the House of Correction, with 120 days to be served and the balance to be suspended during a period of probation. On September 12, 1997, he was convicted in the Boston Municipal Court of possession of heroin with intent to distribute and given a 19-month suspended sentence. On each occasion, he was also convicted of possession of a Class E controlled substance, Xanax, once with intent to distribute, for which, on each occasion, he received a separate, lesser, concurrent sentence. See PSR ¶¶ 94, 96.
The probation office scored these offenses pursuant to U.S.S.G. § 4A1.1, assigning one criminal history point for the Boston Municipal Court convictions described in ¶ 94 (pursuant to § 4A1.1(c)) and two points for the Somerville District Court convictions described in ¶ 96 (pursuant to § 4A1.1(b)). More significantly, the PSR proposed treating the two heroin distribution offenses as predicate convictions of "controlled substance offenses," as defined in U.S.S.G. § 4B1.2(b), implicating the career offender offense level and criminal history categories, as set forth in U.S.S.G. § 4B1.1. If the career offender guideline were to apply, Cyr's criminal history category would have increased to VI, substantially higher than if it were determined only by reference to the number of criminal history points assigned to the convictions.
Cyr objected to the counting of the prior heroin convictions for purposes of determining his criminal history category. He pointed to the PSR's statement of relevant offense conduct in support of his argument that these heroin offenses were part of his participation in the Damien conspiracy and therefore not to be scored.See U.S.S.G. § 4A1.2(a)(1) (defining "prior sentence" for purposes of assessing criminal history points as "any sentence previously imposed upon adjudication of guilt . . . for conduct not part of the instant offense") (emphasis supplied). The PSR referred to the two heroin arrests as having occurred in the course of Cyr's participation in the Damien conspiracy.See PSR at ¶ 12 (noting that "Cyr was arrested on two occasions in 1996 while selling Damien's heroin").
I accepted the statement of offense conduct in the PSR as the basis for determining the guidelines range, and thus accepted the characterization of the 1996 heroin offenses as part of the "instant offense." Accordingly, I agreed with Cyr that the 1996 heroin offenses could not be counted in determining his criminal history category, either by assigning points to those convictions or by considering them predicate offenses for purposes of the career offender guideline.
The matter is not entirely without doubt. The probation officer pointed to application note 8, example (1), to U.S.S.G. § 1B1.3, which presents a pattern of convictions followed by resumed criminal activity very like the pattern in Cyr's case and suggests that the prior convictions should not be considered part of the instant offense. A critical difference is that this PSR, in ¶ 12, explicitly treats the prior offenses as part of Cyr's participation in the Damien conspiracy. Especially in light of the substantial difference to Cyr that would flow from treating the prior offenses as separate, I concluded that it would be best to be guided by the statement in ¶ 12 applicable to this case, rather than by the general example set out in the application note.
However, determining that the prior heroin convictions should not be counted for purposes of the criminal history category did not necessarily mean that the prior convictions for possession of Xanax should not be counted, even though they occurred at the same time as the respective heroin offenses and convictions.
The conspiracy alleged in the indictment and described in the statement of offense conduct was one to distribute heroin. There is no indication in either the indictment or the statement of offense conduct that the conspiracy encompassed the distribution of Xanax. If Cyr's prior convictions had been solely for the possession of Xanax, without companion convictions for possession of heroin, nothing suggests that they would have been regarded as part of the instant offense.
The question thus arises whether the Xanax convictions, countable if they stood alone, should be regarded as uncountable because they were imposed concurrently with uncountable heroin offenses. Cyr argued that the convictions that occurred the same day (as did the offenses) ought to be considered "related" to each other, see U.S.S.G. § 4A1.2(a)(2) and n. 3, and that therefore, if the heroin convictions are treated as uncountable, the "related" Xanax convictions ought also be considered uncountable.
I conclude that the prior heroin and Xanax convictions should not be deemed "related," despite their apparent fit within the explanation set out in application note 3 to § 4A1.2(a)(2), because in this case the heroin offenses were part of the relevant conduct for the instant crime of conviction — conspiracy to distribute heroin — while the Xanax convictions were not. For purposes of sentencing Cyr for the instant offense, the prior heroin convictions become unreal; the guidelines ignore the prior heroin convictions as if they had never occurred. While the analysis suggested by the application note would normally apply, here, where there is a case-specific reason for discriminating between prior offenses that were, and those that were not, part of the crime of conviction, it would be a misapplication of the guidelines to ignore more elements of the defendant's criminal history than necessary.
The "related case" principle limits the cumulative effect of multiple convictions for what might be a single criminal episode. Typically, just as the initial imposition of concurrent sentences on multiple counts of conviction for a single episode do, the "related case" guideline prevents a piling-on of punishment flowing simply from the fact that the criminal episode involved the more or less simultaneous violation of a number of separate criminal prohibitions. But the reverse is not true. The existence of a circumstance that forbids the counting of one offense for purposes of assessing the seriousness of a defendant's prior criminal history does not furnish a reason to omit the counting of a separate offense to which that negating circumstance is not relevant. In other words, the "related case" principle under the criminal history guidelines is not symmetrical. In this case, the heroin 8 convictions are ignored, because they were part of the instant offense, but that is not a reason to ignore crimes, committed at the same time, that were not part of the instant offense. The Xanax convictions were not part of the instant offense, and are therefore countable.
B. Computation of Criminal History Points
The PSR uncontroversially assigned one criminal history point for the prior convictions summarized in ¶¶ 91, 93, and 98. For the reasons set forth above, I conclude that a point ought also to be assigned for each of the Xanax convictions described in ¶¶ 94 and 96. Since all the points are assigned in accordance with U.S.S.G. § 4A1.1(c), the number of points assigned for all these offenses is capped at 4. To these are added 2 additional points, in accordance with § 4A1.1(d), because Cyr committed the instant offense while under the Xanax sentences. The total number of criminal history points is 6, placing Cyr within criminal history category III.
III. SUMMARY
The applicable guideline range for imprisonment determined at offense level 36 and criminal history category III is 235 to 293 months. I imposed a sentence at the low end of that range, concluding that a sentence of just shy of twenty years was adequate to address the considerations enumerated in 18 U.S.C. § 3553(a).