The opinion of the court was delivered by: BY THE COURT; MARVIN KATZ
AND NOW, this 18th day of February, 1994, pursuant to Rule 32(c)(3)(D), Fed. R. Crim. P., and after considering the Government's Sentencing Memorandum, the Defendant's Sentencing Memorandum, the Defendant's letter to the United States Probation Office, the Government's Response to Defendant's Objections to Presentence Report and Sentencing Memorandum, the Revised Presentence Report and a hearing, it is hereby ORDERED that the following findings and determinations of the court be appended to the Revised Presentence Investigation Report (the "PSI") in this case and shall accompany any copy of the PSI thereafter made available to the Bureau of Prisons. With regard to PSI and the parties objections thereto, the court rules as follows:
1. Through counsel, the defendant objects to the quantity of cocaine attributable to him for sentencing purposes. See Def.'s Probation Office Letter. Specifically, defendant objects to paragraphs 24-26, 28, 35, 37 and 38 of the PSI.
In conjunction with this objection the defendant argues that cocaine distributed by the defendant or other members of the JBM prior to the effective date (November 1, 1987) of the United States Sentencing Commission Guidelines Manual (the "Guidelines") is not attributable to the defendant at sentencing.
a. On October 21, 1993, a jury found the Defendant guilty of Counts One, Two, Five, Six, Seven and Eight of Indictment No. 91-570-02.
b. The six counts in question charged the defendant with acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan, namely being a member and leader of a large scale controlled substance distribution conspiracy known as the Junior Black Mafia or the JBM (the "JBM"). See Indictment 91-570, pp 2-30; 21 U.S.C. §§ 841, 846, 848.
c. The six counts in question involve substantially the same type of harm and, pursuant to USSG § 3D1.2, shall be considered as a single group (the "Group") for sentencing purposes. USSG § 3D1.2(d).
d. The offense level for the Group is the offense level corresponding to the aggregated quantity of controlled substances involved, determined in accordance with Chapter Two of the Guidelines and, where applicable, Parts A, B and C of Chapter Three of the Guidelines. U.S.S.G. § 3D1.1(b).
f. The court finds the quantity of controlled substance attributable to the defendant for the Group to be at least 500 but less than 1500 kilograms of cocaine. At sentencing, the quantity of drugs attributable to a defendant convicted of being a leader of a large scale drug distribution conspiracy includes those amounts the defendant was directly involved in distributing plus those amounts distributed by his co-conspirators that were: (1) distributed in furtherance of the conspiracy as described in the count and conviction; (2) within the scope of the defendant's agreement with his co-conspirators; and, (3) reasonably foreseeable given the criminal activity the defendant agreed to undertake. United States v. Collado, 975 F.2d 985, 991, 995 (3d Cir. 1992);
see also USSG § 1B1.3, comment (n.1).
(1) The court finds that the defendant was a direct participant in the delivery or receipt of approximately 427 kilograms of cocaine. The trial testimony establishes that the defendant:
1. Delivered two suitcases containing fifty (50) kilograms of cocaine each for a total of one-hundred (100) kilograms to Dwight Sutton and Bernard Fields in Florida in June, 1987. Testimony of Dwight Sutton, 10/15/93, pp. 72-76;
2. Received twenty (20) kilograms of cocaine from Earl Stewart in early 1988. Testimony of Earl Stewart, 10/14/93, pp. 32-33;
3. Received an additional fifty (50) kilograms of cocaine from Earl Stewart in 1988. Testimony of Earl Stewart, 10/14/93, pp. 34-36;
4. Received two (2) deliveries, one of three to four (3-4) kilograms
and the other of four (4) kilograms of cocaine, from Earl Stewart in 1988, which Earl Stewart obtained from a third individual, Al. Testimony of Earl Stewart, 10/14/93, pp. 37-38;
5. Received five (5) deliveries of twenty (20) kilograms each of cocaine from Guillermo Pallacio and Marco Escobar-Lopez. Testimony of Marco Escobar-Lopez, 10/18/93, pp. 108-109; and
6. Received or arranged for the receipt by his agent, Mikal, three (3) deliveries of fifty (50) kilograms each of cocaine from Guillermo Pallacio and Marco Escobar-Lopez. Testimony ...