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,
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
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.
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 ...