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U.S. v. REYES

July 2, 2001

UNITED STATES OF AMERICA,
v.
JOSE REYES, DEFENDANT.



The opinion of the court was delivered by: Marvin Katz, United States District Court Senior Judge. Jose Reyes pled guilty to conspiracy to distribute cocaine,

MEMORANDUM & ORDER

possession of cocaine with intent to distribute, carrying a firearm during a drug trafficking crime, and possession of a firearm by an illegal alien. He now appears before the court to be sentenced and, by a pro se Motion and Memorandum for Reduction of Sentence (doc. 22) and a pro se letter to the court (doc. 20), he makes several arguments for a sentence reduction.

Crack vs. Cocaine Base

In light of new stipulations entered into by the parties, which hold Mr. Reyes accountable for 551 grams of cocaine only, his objection to the references to crack cocaine in the PSI are moot.

Mitigating Role Decrease

Defendant argues that under U.S.S.G. § 3B1.2, he is entitled to a two, three, or four level decrease in offense level because he was a minor or minimal participant in the drug organization. He bases this argument on the fact that at the time of his arrest, he possessed only $500.00 in drug proceeds while others arrested had more money. His description of his part in the conspiracy is this:

Mr. Reyes, was being paid for his services as a bagger, and protector of the drugs that he was responsible for bagging for later distribution, by others in the conspiracy. He was not responsible for the manner of distribution, nor for the sales and proceeds received from future distribution. He simply needed a place to stay, so for his services he was paid a weekly salary, and given a place to stay.

Pro se Mot. and Mem. at 4. He argues that this role was minor or minimal within the meaning of the Guidelines.

The court recognizes its authority to make this decrease but declines to do so on these facts. The minimal participant decrease "is intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group." U.S.S.G. § 3B1.2 cmt. 1. However low on the organizational totem pole Mr. Reyes's job as bagger may have been, he was an ongoing participant in the scheme who profited from it in an ongoing manner. This distinguishes him from the examples of minimal participants in the Commentary, which says the reduction would be appropriate "for someone 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." cmt. 2.

The Commentary does not give any examples of a minor participant, but defines it as "any participant who is less culpable than most other participants, but whose role could not be described as minimal." cmt. 3. In Mr. Reyes's description of the events surrounding his arrest, he stated that he shot at the police because he believed they were robbers coming for the drugs and drug money. See Gov't Plea Mem. at 20 (summarizing defendant's statement to the police). Because his role as bagger included being the protector of the drugs that he was responsible for bagging to an extent that he was willing to shoot anyone who came after them, the court is unwilling to term him a minor or minimal participant in the group.

Post-Offense Rehabilitation Efforts

Defendant says that since his arrest, he has attended numerous Adult Continuing Education courses, along with parenting workshops. He also intends to enroll in a comprehensive drug treatment program. Through these measures, he says that "he has progressively pursued avenues to not only enhance his own life and standards of living, but those of his family as well." Pro se Mot. and Mem. at 6. On this basis, he argues for a downward departure for extraordinary post-offense rehabilitation efforts under Sally.

Mr. Reyes's participation in programs offered at the prison are commendable, and the court sincerely encourages him to continue taking advantage of the available opportunities. His activities, however, do not constitute the sort of extraordinary circumstances ...


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