U.S. v. Paulino, 1004
| Decision Date | 13 April 1989 |
| Docket Number | D,No. 1004,1004 |
| Parties | UNITED STATES of America, Appellee, v. Felix PAULINO, Defendant-Appellant. ocket 88-1433. |
| Court | U.S. Court of Appeals — Second Circuit |
Gary Schoer, Schoer & Sileo, Garden City, N.Y., submitted a brief, for defendant-appellant.
Andrew J. Maloney, U.S. Atty., John Gleeson, Jacques Semmelman, Asst. U.S. Attys., Brooklyn, N.Y., submitted a brief, for appellee.
Before NEWMAN, CARDAMONE and WINTER, Circuit Judges.
This appeal raises the question of whether a sentencing judge exceeded his discretion by not departing from a guideline range set forth in the Sentencing Guidelines. This question arises on an appeal by Felix Paulino from a judgment of the District Court for the Eastern District of New York (Mark A. Costantino, Judge) convicting him, upon his guilty plea, of possessing cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1), (b)(1)(C) (1982 & Supp. IV 1986). Paulino's sentence included a prison term of sixty-three months.
Appellant argues that Judge Costantino erred in not departing from the guideline applicable to Paulino based on appellant's minor role in the narcotics transaction that led to his arrest and conviction. Appellant alternatively asserts that Judge Costantino selected the inappropriate base offense level because the Court's computation was based on the total amount of narcotics involved in the transaction in which Paulino participated. We conclude that the District Court selected the correct base offense level and guideline range for Paulino. We also find that Judge Costantino did not, and indeed could not, exceed his discretion in not departing where, as here, the asserted basis for departure had already been taken into account by the Court in properly adjusting downward defendant's offense level. We therefore affirm.
On November 12, 1987, an undercover officer went to a supermarket in Brooklyn to complete a previously arranged purchase of two kilograms of cocaine from Luis Escolastico. Drug Enforcement Administration (DEA) agents had placed the store under surveillance and had obtained a search warrant for the premises. The officer and Escolastico agreed to consummate the purchase that evening. Paulino acted as a lookout for this meeting and attempted to search the officer for a listening device. When the officer returned later, Escolastico led him to the basement of the store, where the officer was shown two bags that Escolastico said contained cocaine. DEA agents then entered the store and recovered the two bags, which contained 63.8 grams of cocaine. Based on information that the rest of the two kilograms for that evening's planned purchase was cached in a nearby video arcade, DEA agents entered an unmarked video store that had a basement passageway leading to the supermarket and recovered 1,884 grams of cocaine and 41 grams of cocaine base ("crack").
The indictment charged Escolastico and appellant with conspiracy (count 1), and substantive offenses of possession with intent to distribute over 500 grams of cocaine (count 2) and possession with intent to distribute over 50 grams of crack (count 3). 1 Under a written plea agreement, Paulino pled guilty to a one-count superseding indictment. In his plea allocution, appellant admitted that he had served as the lookout for the cocaine distribution operation.
The Sentencing Guidelines establish a hierarchy of base offense levels for narcotics offenses, scaled in relation to narcotics quantities. In determining the base offense level applicable to Paulino, the District Court, following the recommendation contained in the presentence report, considered the total quantity of the drugs recovered during the operation and arrived at a base offense level of 32. See United States Sentencing Commission, Sentencing Guidelines and Policy Statements Sec. 2D1.1 Drug Quantity Table (1987) [hereinafter "Sentencing Guidelines"]. 2 The Court accorded Paulino a four-level reduction to account for his minimal role in the offense, pursuant to section 3B1.2(a) of the Guidelines, and a further two-level reduction for Paulino's acceptance of responsibility, pursuant to section 3E1.1. These reductions brought Paulino's offense level down to 26. The guideline range under Criminal History Category I, which concededly applies to Paulino, is sixty-three to seventy-eight months. The District Court imposed the minimum sentence within this range.
Before turning to appellant's argument regarding a sentencing judge's discretion to depart from the guidelines, we briefly consider appellant's assertion that Judge Costantino erred in selecting Paulino's initial base offense level. Appellant does not dispute the mathematical...
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