Opinion
S1 99 Cr. 338 (RWS)
December 15, 2003
JAMES B. COMEY, New York, NY, for United States of America, for KIM A. BERGER
JOSHUA L. DRATEL, P.C., MARSHALL A. MINTZ, ESQ. Of Counsel, New York, NY, for Defendant Brent Birkett
STEWART L. ORDEN, ESQ., New York, NY, for Defendant Franklin Sanchez
BENNETT M. EPSTEIN, ESQ, New York, NY, for Defendant Michael Richardson
LOUIS M. FREEMAN, ESQ. Of Counsel, FREEMAN NOOTER GINSBERG, New York, NY, for Defendant Damion Gowdie
OLIVER A. SMITH, ESQ., New York, NY, for Defendant Randolph Helvy
VALERIE S. AMSTERDAM, ESQ. Of Counsel, AMSTERDAM BRANDEN, New York, NY, for Defendant Sidney Sass
STEVEN M. STATSINGER, ESQ. Of Counsel, THE LEGAL AID SOCIETY FEDERAL DEFENDER DIVISION, New York, NY, for Defendant James Clyburn
OPINION
Defendants Brent Birkett ("Birkett"), Franklin Sanchez ("Sanchez"), Michael Richardson ("Richardson), Sidney Sass ("Sass"), and Damion Gowdie ("Gowdie") have contested the appropriate amount of crack cocaine for which they should be sentenced and the proper characterization of their roles.
As set forth below:
(1) Defendants are responsible for the distribution of over 1.5 kilograms of cocaine base;
(2) Birkett and Sanchez played leadership roles in the conspiracy;
(3) Richardson qualifies for both a minor role and safety valve reduction;
(4) Sass qualifies for both a minor role and safety valve reduction; and
(5) As Gowdie served as a temporary supervisor, he does not qualify for a minor role or safety valve reduction.Prior Proceedings
Superseding Indictment S1 99 Cr. 338 (RWS) was filed on September 24, 1999, charging a drug conspiracy in one count. Count One charged Birkett, James Clyburn ("Clyburn"), Gowdie, Randolph Helvy ("Helvy"), James Jones ("Jones"), William Martin ("Martin"), Shannon Mont ("Mont"), Daryl Patrick ("Patrick"), Richardson, Sanchez, Sidney, Sass, and Reda Solomon ("Solomon") with conspiring to possess with the intent to distribute 50 grams and more of crack cocaine.
All of the defendants, other than Birkett and Sanchez, entered guilty pleas prior to trial. Sanchez and Birkett proceeded to trial, which began on May 15, 2000 and concluded on May 19, 2000 when the jury returned a guilty verdict as to both defendants. Clyburn and Helvy were accomplice witnesses who testified for the government at trial.
By motion of September 29, 2000, Birkett and Sanchez moved to set aside the verdict and grant a new trial on the basis of two handwritten letters purportedly written by Clyburn before the trial. They contended that these letters were inconsistent with material portions of Clyburn's testimony and showed that Clyburn knew the government had targeted them and urged his co-defendants to testify against Birkett and Sanchez. This motion was heard on December 6, 2000 and denied by opinion of January 10, 2001, stating that even without Clyburn's testimony the government produced sufficient evidence "from which a rational jury could infer defendants' knowledge of and membership in [the conspiracy] beyond a reasonable doubt." United States v. Birkett, No. 99 Cr. 338, 2001 U.S. Dist. LEXIS 94, at *14 (S.D.N.Y. Jan. 10, 2001).
Moreover, as stated with regards to the first letter: "It is unclear how this letter supports the defenses's argument. As the government notes, this letter does not include even a suggestion that Clyburn intended to frame Birkett and Sanchez as the leaders of the organization and urge [the address] to testify against them." Id. at *8. As for the second letter, the January 10, 2001 opinion notes that the government argued "that there is no evidence as to the identity of [the recipient], that the letter provides no evidence that Clyburn conspired to frame Birkett and Sanchez by offering false testimony, and that there is no reason to construe `let's get them' as a reference to Birkett and Sanchez." Id. at *9-10.
On June 27, 2001 and September 4, 2002, a Fatico hearing was held with respect to quantity determinations and role enhancements, concerning defendants Birkett, Sanchez, Richardson, Sass, and Gowdie. At the hearing, Clyburn, Helvy, and Detective Carl Preudhomme ("Preudhomme"), the lead investigator with the New York City Police Department in this case, testified.
On February 4, 2003, Sanchez moved for a second time for a new trial based upon the Clyburn letters and testimony at the Fatico hearing. This motion was denied on April 17, 2003 since "the facts adduced in the Fatico hearings . . . confirmed . . . that there was sufficient evidence to support the conviction." United States v. Sanchez, No. 99 Cr. 338, 2003 U.S. Dist. LEXIS 6340, at *5 (S.D.N.Y. April 17, 2003).
Facts Established by the Proceedings
The government presented evidence that Birkett and Sanchez operated a crack cocaine business, nicknamed "the Purple Crew" out of the courtyard of an apartment building on West 144th Street in Manhattan from 1994 through 1999. At the height of operations in 1997 and 1998, the conspiracy sold approximately $10,000 of crack cocaine each day, and the Purple Crew worked virtually twenty-four hours a day, seven days a week.
The government's evidence further showed that Birkett and Sanchez employed a number of workers, including "couriers, "who transported cocaine from their suppliers to the stash houses for "cooking" and "bagging" and delivery; "pitchers," who sold $5 bags of crack in amounts of up to $2,000 per day; and managers or lieutenants, who ensured a ready supply of cocaine and accounted for the cash proceeds each day. Sanchez, Birkett, and occasionally Richardson, were responsible for "cooking" the cocaine into crack cocaine. (Trial Tr. at 71-78.) Richardson packaged crack cocaine into individual bags that were later sold to customers. In 1997 and 1998, Richardson packaged 100 to 300 grams of crack cocaine for Birkett and Sanchez on a weekly basis. Helvy, Sass, Mont, and Gowdie all worked as sellers or "pitchers." Clyburn was primarily a supervisor.
In 1997, Sanchez and Birkett learned that Clyburn was selling crack cocaine on his own behalf and fired him, along with Helvy and Mont. After Clyburn was fired, Gowdie was promoted to replace him for six to seven months.
I. The Witnesses Testifying at the Fatico Hearing Were Credible
Birkett and Sanchez further attack the credibility of the witnesses at the Fatico hearing. Birkett argues that due to "numerous inconsistencies" the witness's testimony should be discredited "as a whole." (Birkett Mem. at 6.) However, he failed to point to any specific inconsistencies and has adopted the arguments presented by Sanchez.
Sanchez claims that Clyburn and Helvy "perjured themselves at either the trial, hearing or both." (Sanchez Mem. at 2.) Sanchez also claims Preudhomme is "to be greatly doubted." Id. These allegations formed the basis of Sanchez's February 4, 2003 motion for a new trial, which was denied in the April 17, 2003 opinion. As previously held, "the facts adduced in the Fatico hearings . . . confirmed . . . that there was sufficient evidence to support the conviction" of defendants for the narcotics conspiracy. United States v. Sanchez, No. 99 Cr. 338, 2003 U.S. Dist. LEXIS 6340, at *5 (S.D.N.Y. April 17, 2003). Thus, the witnesses' testimony at theFatico hearing was adequately supported by the "testimony of William Martin [at trial], the testimony of officers who conducted surveillance . . ., the guilty plea allocutions of six co-conspirators, Sanchez's post-arrest statement. . . ., Sanchez's January 1999 arrest . . ., and the telephone records." Id. at *7.
The April 17 opinion further notes that "the perjury of Helvy as claimed by Sanchez may result form his answer to a compound question, only the first portion of which dealt with the claimed conspiracy with Clyburn." Id. at *6-7. In any case, the trial perjury Sanchez claims "favors Sanchez as supporting the defense theory at trial." Id. at *6.
II. Defendants Are Responsible for the Distribution of Over 1.5 Kilograms of Cocaine Base A. The Evidence Establishes that the Conspiracy Involved the Distribution of over 1.5 Kilograms of Cocaine Base
The conspiracy took place from 1994 to 1999, a period of 50 months. It thus would only have needed to sell an average of 30 grams of cocaine base per month for these 50 months to reach 1.5 kilograms. Evidence presented at trial and at the Fatico hearing established that group sales exceeded this amount.
Clyburn testified that the when the Purple Crew was first establishing itself in 1994 and early 1995, it sold approximately $1,500 worth of crack daily, at $5 a bag equaling 300 bags. By 1997 and 1998, when the group was at its height, it sold approximately $10,000 worth of crack (or 2,000 $5 bags) per day. William Martin, a courier who worked in 1998 and 1999, testified that he received about 1,000 $5 bags from a stash location twice a day. Detective Preudhomme testified that during the course of investigation, he would see between 50 and 100 crack customers per hour entering and exiting the building during peak hours, and 25 to 50 customers during non-peak hours. If each $5 bag contained 2 grains of crack, the Purple Crew was selling in 1997 and 1998 approximately 4,000 grains, or 259.2 grams, in excess of 1.5 kilograms every week.
Under the Guidelines' "relevant conduct" provision, § 1B1.3, a defendant convicted of narcotics conspiracy is accountable not only "for all quantities of [narcotics] with which he was directly involved," but also for "all reasonably foreseeable quantities of [narcotics] that were within the scope of the criminal activity that he jointly undertook" with others. § 1B1.3, App. Note 2. Here, all the crack cocaine sold by the Purple Crew was "in furtherance of the jointly undertaken criminal activity" and "reasonably foreseeable in connection with that criminal activity." Id. B. There is No Apprendi Violation
On June 26, 2000, the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), holding that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." In United States v. Thomas, 274 F.3d 655, 660 (2d Cir. 2001), the Second Circuit concluded, "following Apprendi's teachings that if the type and quantity of drugs involved in a charged crime may be used to impose a sentence above the statutory maximum for an indeterminate quantity of drugs, then the type and quantity of drugs is an element of the offense that must be charged in the indictment and submitted to the jury."
The Second Circuit initially decided this case the other way before the Supreme Court's Apprendi decision. See United States v. Thomas, 204 F.3d 381, 384 (2d Cir. 2000). In the firstThomas decision, the Second Circuit "joined every other circuit that had considered the question in holding that . . . drug quantity remained a sentencing factor to be determined by the district judge, not an element of the offense to be proved by the prosecutor beyond a reasonable doubt and found by the jury." Thomas, 274 F.3d at 661-62. The Supreme Court then remanded this case back to the Second Circuit for further consideration in light of Apprendi.Id. at 662.
In Thomas, unlike in the present case, the indictment was silent on the quantity of drugs involved in the charged crimes. 274 F.3d at 660. Under 21 U.S.C. § 841(b)(1)(C), 20 years is the statutory maximum term of imprisonment for an offense involving an unspecified quantity of cocaine or crack cocaine. However, the sentence imposed on the defendant in Thomas was for 292 months' imprisonment, pursuant to 21 U.S.C. § 841(b)(1)(A), based on a judicial finding by a preponderance of evidence that Thomas's crime involved 12 kilograms of cocaine and 1.2 kilograms of cocaine base. Id. at 661. Thus, "Thomas was convicted of a crime other than the crime alleged in the indictment." Id. at 670; see also id. at 669 (pointing out the "lack of congruence or consistency between, on the one hand, the crime as charged in the indictment and found by the jury and, on the other, the crime for which the defendant was sentenced").
Here, however, the indictment charges the defendants with the distribution and possession with intent to distribute of "50 grams and more of mixtures and substances containing a detectable amount of cocaine base, in a form commonly known as `crack,' in violation of Sections 812, 841(a)(1), and 841(b)(1)(A) of Title 21, United States Code." (Ind. at 2 ¶ 2.) Thus, unlike in Thomas, defendants knew they were charged with an offense involving at least 50 grams of crack, and under 21 U.S.C. § 841(b)(1)(A), the sentence carried by this offense is from a statutory minimum of 10 years' imprisonment to life.
Thus, a jury expressly found beyond a reasonable doubt that the offense by Birkett and Sanchez involved at least 50 grams of crack, and the other defendants pled guilty to this offense. As the Second Circuit held inYu, "Any sentence under [the quantity-specific penalty provisions of 21 U.S.C. § 841(b)(1)] must be based either on an allocution that settles the issue of drug quantity or on a finding as to that issue by a fact-finder applying a reasonable-doubt standard."United States v. Yu, 285 F.3d 192, 198 (2d Cir. 2002).See also Grajales v. United States, No. 01 CV 7126, 2002 U.S. Dist. LEXIS 10709, at *13 (Feb. 28, 2002) ("[A] plea allocution acknowledging drug quantity satisfies the proof requirements of Apprendi.") (citing United States v. White, 240 F.3d 127, 134 (2d Cir. 2001); United States v. Champion, 234 F.3d 106, 110 n. 3 (2d Cir. 2001)); United States v. Doe, 297 F.3d 76, 89 (2d Cir. 2001) (same).
The present case similarly differs from United States v. Doe, 297 F.3d 76, 84 (2d Cir. 2001), cited by defendants, where again "no quantity specific provision appear[ed] in the text of the indictment." Doe, unlike the present defendants, "had little reason to assume that the quantity of drugs involved in his offense would be of any certain magnitude or that the indeterminate quantity provisions of § 960(b)(3) would not apply to his case." Id. at 86. The court inDoe further cited as problematic the absence of any reference to drug quantity in Doe's allocution. Id. at 90. Additionally,see United States v. Cotton, 535 U.S. 625, 633 (2002) (reversing the Fourth Circuit's conclusion that the failure to charge drug quantity in the indictment deprived the court of jurisdiction to impose a sentence above the statutory maximum for offenses involving an indeterminate amount of drugs, when the court found the evidence of drug quantity presented at trial to be both "overwhelming" and "essentially uncontroverted").
Thus, defendants here are all sentenced for the crime alleged in the indictment and to terms of imprisonment within the statutory range specified under 21 U.S.C. § 841(b)(1)(A). Any drug quantity found over the 50 grams of crack cocaine is not used to alter the crime or penalty applicable to the defendants, but rather to determine their appropriate sentence within the applicable sentencing range. As the Court explained in Thomas, "Our holding that drug quantity is an element of a § 841 offense does not preclude a District Court from considering drug quantity in determining a defendant's relevant conduct for sentencing purposes pursuant to U.S.S.G. § 1B1.3(a) . . . so long as the resulting sentence does not exceed the statutory maximum."Thomas, 274 F.3d at 663-64. This is in line withApprendi's holding, where the Supreme Court clarified that its ruling,
is not to suggest that the term `sentencing factor' is devoid of meaning. The term appropriately describes a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury's finding that the defendant is guilty of a particular offense.Apprendi, 530 U.S. at 494 n. 19 (emphasis in original);see also United States v. Harris, 536 U.S. 545, 558 (2002) ("Judicial facfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable doubt components of the Fifth and Sixth Amendments.").
In United States v. Harris, 536 U.S. 545 (2002), the Supreme Court explicitly held that facts which increase the applicable mandatory minimum penalty can be treated as "sentencing factors" and do not require submission to a jury or proof beyond a reasonable doubt. As the Court explained, "Whether chosen by the judge or the legislature, the facts guiding judicial discretion below the statutory maximum need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt." Id. at 565.
In this case, it is thus sufficient for the indictment to allege and for the jury to find at least 50 grams of crack cocaine. Quantity determinations beyond this amount can be made by the Court under a preponderance of evidence standard.
III. Birkett and Sanchez Played Leadership Roles in the Conspiracy
Sentencing Guidelines § 3B1.1(a) mandates a four-level enhancement in offense level for a defendant who is "an organizer or leader of criminal activity that involved five or more participants or was otherwise extensive." Whether a defendant is a "leader" depends upon "the degree of discretion exercised by him, the nature and degree of his participation in planning or organizing the offense, and the degree of control and authority exercised over the other members of the conspiracy." United States v. Beaulieau, 959 F.2d 375, 379-80 (2d Cir. 1992), as well as such other factors, such as "the claimed right to a larger share of the fruits of the crime." U.S.S.G. § 3B1.1(a), App. Note 4. The adjustment applies so long as the defendant "managed only one other participant" in a criminal activity that involved five or more participants. United Sates v. Zichettello, 208 F.3d 72, 107 (2d Cir. 2000).
The evidence at trial and at the Fatico hearing established that for almost five years, Sanchez and Birkett were the owners and co-leaders of the Purple Crew, a conspiracy selling crack cocaine at 560 West 144th Street. Both Clyburn and Helvy, who were among the earliest employees of the business, testified that from the start they were working for Birkett and Sanchez. They testified that Birkett and Sanchez supplied the drugs, that they made decisions as to the running of the organization, and that the drug proceeds went to Birkett and Sanchez. This testimonial evidence was also corroborated by telephone records, showing a large volume of calls between Birkett and the Purple Crew workers and between Birkett and Sanchez.
The evidence further showed that the criminal activity at issue involved "five or more participants." Twelve defendants were convicted in this case, and several other participants in the group's narcotics activities were mentioned at trial. Accordingly, the four level enhancement of U.S.S.G. § 3B1.1(a) applies to both Sanchez and Birkett.
IV. Richardson A. Richardson Qualifies for a Minor Role Reduction
Richardson argues that he qualifies for a downward role adjustment since he had only a limited role in the conspiracy. He claims that contrary to the probation report, he never cooked cocaine into crack and did not package cocaine on a regular basis.
As the Second Circuit explained, "In evaluating a defendant's role, we look to factors such as `the nature of the defendant's relationship to other participants, the importance of the defendant's actions to the success of the venture, and the defendant's awareness of the nature and scope of the criminal enterprise." Yu, 285 F.3d at 200 (quoting United States v. Garcia, 920 F.2d 153, 155 (2d Cir. 1990)). Moreover, "a minor role adjustment is not available merely on a showing that the defendant `played a lesser role than his co-conspirators; to be eligible for a reduction, the defendant's conduct must be minor . . . as compared to the average participant in such a crime.'" Yu, 285 F.3d at 198 (quoting United States v. Rahman, 189 F.3d 88, 159 (2d Cir. 1999)).
Testimony at trial and at the Fatico hearing established that Clyburn used to pack cocaine for the Purple Crew. During 1997 and 1998, he worked for the Purple Crew and bagged between 100 to 300 grams of crack, approximately once a week. Richardson, however, never worked at the Purple Crew's regular "stash" apartments. Testimony was further introduced, although disputed by Richardson, that he cooked cocaine into crack. (Trial Tr. at 71.)
Richardson's role as an occasional packager was a minor role when compared to other organization members and "to the average participant in such a crime." Yu, 285 F.3d at 198 (quoting Rahman, 189 F.3d at 159). The extent of Richardson's involvement does not support his "awareness of the nature and scope of the criminal enterprise." Yu, 285 F.3d at 200 (quoting Garcia, 920 F.2d at 155. Richardson citesUnited States v. Martinez, 00 Cr. 1306, where a two-level minor role reduction was awarded to a defendant who transported and occasionally packaged drugs. Richardson similarly qualifies for a two-level minor role reduction.
B. Richardson is Responsible for the Distribution of over 1.5 Kilograms of Cocaine Base
Richardson, however, is responsible for all the crack cocaine distributed as part of the conspiracy. This is the case as the crack cocaine sold by the Purple Crew was "reasonably foreseeable" and "within the scope of the criminal activity that [Richardson] jointly undertook." U.S.S.G. § 1B1.3. Richardson's direct involvement with 100 to 300 grams of crack cocaine on a once a week basis would have indicated to him that the Purple Crew was dealing with drug quantities that could easily add up to 1.5 kilograms.
C. Richardson Qualifies for a Safety Valve Reduction
Richardson qualifies for a two-level reduction under U.S.S.G. § 2D1.1(b)(6), pursuant to safety valve, § 5C1.2, and 18 U.S.C. § 3552(f). Section 5C1.2 allows for a sentence according to the Guidelines range, regardless of an otherwise applicable statutory minimum, where:
(1) the defendant does not have more than 1 criminal history point;
(2) no violence or threats or weapons were involved in the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others; and
(5) the defendant truthfully provided all known information to the government, unless the government is already aware of the information.
Here, Richardson satisfies all these requirements and thus may receive a two-level reduction in the offense level, pursuant to U.S.S.G. § 2D1.1(b)(6).
IV. Sass A. Sass Qualifies for a Minor Role Reduction
The trial and Fatico hearing testimony established that Sass was only involved in the conspiracy as a "pitcher," handling the hand-to hand sale of crack. Preudhomme, Clyburn, and Helvy all testified that Sass served as a pitcher and lookout, a "front line," non-salaried employee, most susceptible to arrest. (Fatico Tr. at 301.) According to Clyburn, the pitcher was the "lowest guy in the organization." (Fatico Tr. at 66.)
Sass's role was similar to that of the defendant in United States v. Foster, No. 98 Cr. 927, 2002 WL 1300236, at *2 (S.D.N.Y. June 12, 2002), where the he "participated in the conspiracy mainly as a `pitcher' who sold heroin packets directly to the Bryant Avenue Organization's customers intermittently during the period of approximately June 1996 through July 22, 1998. . . . He exercised no managerial role in the conspiracy." Sass is thus similarly entitled to a two-level minor role reduction.
B. Sass is Responsible for the Distribution of over 1.5 Kilograms of Cocaine Base
Sass further argues that he should not be held liable for the full quantity of drugs distributed by the Purple Crew since he spent much of the time incarcerated. Sass was incarcerated from mid-November 1997 to August 1998 and from mid-February 1999 to the present.
Limitations on Sass's period of involvement in the organization may support his minor role, but do not serve to decrease his responsibility for the weight of drugs distributed as part of the conspiracy. Sass was a regular hand-to-hand seller during the span of the conspiracy when he was not incarcerated. Moreover, all the crack cocaine sold by the Purple Crew was "reasonably foreseeable" and "within the scope of the criminal activity that [Sass] jointly undertook." U.S.S.G. § 1B1.3. In fact, it appears that Sass was incarcerated in conjunction with drug sales made in furtherance of this conspiracy. In any case, from August 1998 to February 1999, when Sass was present, the conspiracy distributed over one kilogram of crack cocaine a week.
C. Sass Qualifies for a Safety Valve Reduction
Sass further moves for a two-level safety valve reduction under U.S.S.G. § 2D1.1(b)(6), pursuant to safety valve, § 5C1.2, and 18 U.S.C. § 3552(f). Section 5C1.2 allows for a sentence according to the Guidelines range, regardless of an otherwise applicable statutory minimum, where:
(1) the defendant does not have more than 1 criminal history point;
(2) no violence or threats or weapons were involved in the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others; and
(5) the defendant truthfully provided all known information to the government, unless the government is already aware of the information.
Here, Sass satisfies all these requirements and thus may receive a two-level reduction in the offense level, pursuant to U.S.S.G. § 2D1.1(b)(6).
V. Gowdie A. Gowdie Served as a Temporary Supervisor
Courts have held that "a defendant acts as a `manager or supervisor' of a criminal enterprise involving at least five participants if he exercises some degree of control over others involved in the commission of the offense, or plays a significant role in the decision to recruit or to supervise lower-level participants." Ellerby v. United States, 187 F.3d 257, 259 (2d Cir. 1998) (internal quotations and citations omitted) (citing United States v. Payne, 63 F.3d 1200, 1212 (2d Cir. 1995).
This is the case here where Gowdie served as a Purple Crew supervisor for at least six months in 1997 and 1998. Helvy and Clyburn testified that Gowdie took over Clyburn's role as a lieutenant or supervisor before he returned to the group. Even when Clyburn was allowed back into the Purple Crew, Gowdie was initially at a higher level in the organization than Clyburn. In the conspiracy at issue here, the lieutenants oversaw all of the group's drug-selling activity; they were entrusted with the drugs and money; and during their shift, they were responsible for parceling out drugs to the workers and collecting and maintaining the drug proceeds. People who wanted to work for the Purple Crew also had to apply to the lieutenants.
Under U.S.S.G. § 3B1.1(b), a three-level enhancement is applicable "[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive." Accord United States v. Jiminez, 68 F.3d 49, 52 (2d Cir. 1995). Here, although Gowdie served as a supervisory, this was a temporary position, and he worked primarily as a hand-to-hand sales representative in the organization. Gowdie thus should not receive the aggravating role enhancement under U.S.S.G. § 3B1.1.
B. Gowdie Does Not Qualify for a Safety Valve Reduction
As Gowdie was a temporary supervisor and did not play a minor role in the conspiracy, he does not meet the criteria under U.S.S.G. § 5C1.2 and is ineligible for a safety valve reduction in his sentence.
C. Downward Departure is Unwarranted
Gowdie further moves for downward departure under U.S.S.G. § 5K2.0. He claims that because he has been incarcerated in a federal detention center since his arrest in 1999, he has been denied the ordinary opportunities offered by the Bureau of Prisons, such as educational and vocational training.
As explained in United States v. Francis, 129 F. Supp.2d 612, 614 (S.D.N.Y. 2001), "The issue of whether a sentencing judge may grant a downward departure based on the conditions of an inmate's pre-sentence confinement is one on which the Second Circuit has not yet ruled." (citing United States v. Gutierrez, No. 99-1594, 2000 U.S. App. LEXIS 23767, at *1 (2d Cir. Sept. 20, 2000). Furthermore, district courts that have addressed this issue have come to "no clear consensus." Id. The Francis court, however, held that downward departure was appropriate for atypical confinement conditions where the defendant has been "subjected to extraordinary stress and fear." Id. at 619 (noting that "[i]n addition to the psychological pressure, this Defendant was the victim of an attempted attack and threats [an attempted knife slashing by another inmate]. He suffered significant weight loss, stress, insomnia, depression, and fear as a result."). See also United States v. Sutton, 973 F. Supp. 488, 493 (D.N.J. 1997) (cited by Gowdie and holding that "[m]ere pretrial confinement . . . is not unusual at all and cannot serve as the basis of a downward departure." Thus, in granting downward departure, the sentencing court may only consider "[u]nusual confinement.").
Gowdie experienced nothing of the sort. Although there have been a series of delays in this case, occasioned by various events including the aftermath of the World Trade Center attack, they do not rise to the level of severity to warrant a downward departure.
Conclusion
For the reasons set forth above:
(1) Defendants are responsible for the distribution of over 1.5 kilograms of cocaine base;
(2) Birkett and Sanchez played leadership roles in the conspiracy;
(3) Richardson qualifies for both a minor role and safety valve reduction;
(4) Sass qualifies for both a minor role and safety valve reduction; and
(5) As Gowdie served as a temporary supervisor, he does not qualify for a minor role or safety valve reduction.
It is so ordered.