933 F.2d 1117 (2nd Cir. 1991), 861, United States v. Alba

Docket Nº:861, Docket 90-1523.
Citation:933 F.2d 1117
Party Name:UNITED STATES of America, Appellant, v. Didier ALBA; John Gonzalez; Marizol Vasquez, Defendants, John Gonzalez, Defendant-Appellee.
Case Date:May 23, 1991
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 1117

933 F.2d 1117 (2nd Cir. 1991)

UNITED STATES of America, Appellant,

v.

Didier ALBA; John Gonzalez; Marizol Vasquez, Defendants,

John Gonzalez, Defendant-Appellee.

No. 861, Docket 90-1523.

United States Court of Appeals, Second Circuit

May 23, 1991

Argued March 1, 1991.

Page 1118

Deborah R. Slater, Asst. U.S. Atty., D. Conn., Hartford, Conn. (Stanley A. Twardy, Jr., U.S. Atty., D. Conn., New Haven, Conn., of counsel), for appellant, U.S.

Hubert Santos, Hartford, Conn. (Hope C. Seeley, Santos, Peck & Smith, P.C., Hartford, Conn., of counsel), for defendant-appellee, John Gonzalez.

Before OAKES, Chief Judge, and CARDAMONE and MAHONEY, Circuit Judges.

CARDAMONE, Circuit Judge:

Defendant John Gonzalez pled guilty on April 18, 1990 to a charge of conspiracy to distribute and to possess with the intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1988). Responsibility for two kilograms of cocaine was attributed to him and, upon receiving two base offense level reductions for his minimal role in the offense and acceptance of responsibility, his Sentencing Guidelines range was 41-51 months. Relying on four separate factors, the district court then departed from that range and instead sentenced Gonzalez to six months in a halfway house, followed by two years of supervised release and a $50 fine.

On this appeal from the judgment entered July 17, 1990 in the District of Connecticut, Peter C. Dorsey, Judge, the United States challenges each of the four factors relied on by the sentencing court to depart downwardly from the appropriate Guidelines range; it also contends that the magnitude of the departure was unreasonable. For reasons to be discussed in a moment, we think the sentencing judge properly relied on two of the factors cited but that the other two he relied upon may not be appropriately considered as reasons for a downward departure. Because we cannot be certain the district court would have exercised its discretion and granted a downward departure to the same degree had it based its decision to depart solely on the valid factors, we remand for resentencing.

BACKGROUND

Confidential information obtained in 1988 by the FBI and the Connecticut Statewide

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Narcotics Taskforce indicated that Didier Alba, a co-defendant of Gonzalez, was an established cocaine supplier in the Willimantic, Connecticut area. In August 1989 Drug Enforcement Administration (DEA) agents were advised by a confidential informant that Alba was involved in multi-kilogram cocaine transactions in that locality. After a confidential informant made contact with Alba, he arranged a ten-kilogram purchase. During the course of the negotiations, co-defendant Marizol Vasquez, Alba's wife, was heard on two recorded phone conversations advising the informant that Alba had the money for four kilograms, that she and Alba sold two "motors" (kilograms) per week, and did not like to sell "transmissions" (ounces), leaving that to others. Plans were thereafter made to deliver the ten kilograms to Alba on September 21, 1989 at the Sheraton Hotel at Bradley International Airport in Windsor Locks, Connecticut. Alba agreed to pay $11,000 per kilogram and to tender $65,000 as a downpayment.

On September 21 when the informant advised Alba that he was at the Sheraton, Alba said he would join him there with the money. DEA agents then observed Alba driving away from his residence followed by another car driven by defendant Gonzalez. The two cars stopped at a gas station and the agents observed Gonzalez take a plastic bag from the trunk of his car and put it on the front seat.

From there Alba and Gonzalez drove directly to the Sheraton's underground parking area. Gonzalez remained in his vehicle, while Alba went to the hotel lobby. A few minutes later Alba returned to the garage with the informant and an undercover agent. He told Gonzalez to show them a box inside the bag, which he stated contained $60,000. Alba and the informant then returned to the lobby while the undercover agent and Gonzalez remained in the parking area. While waiting there, Gonzalez and the agent had a conversation which was recorded by the agent. In it Gonzalez discussed cocaine prices and other subjects relating to cocaine trafficking. Gonzalez later stated he adlibbed this conversation because he was afraid of the agent, whom he thought to be a member of organized crime. Defendant Alba was arrested in front of the Sheraton after he took possession of what he believed to be a package containing ten kilograms of cocaine. Gonzalez was arrested and searched shortly thereafter in the parking lot. The search revealed Gonzalez had in his possession a piece of paper with beeper numbers on it.

After his arrest, Gonzalez received and waived his Miranda rights. According to the government, the defendant then made a post-arrest statement in which he admitted he had held the $60,000 overnight, received $3,000 for his part in the deal, and been told by Alba to call the beeper numbers after they received the cocaine to make arrangements for its delivery. None of this information was contained in the presentence investigation report. A search of Gonzalez' home uncovered a black powder .36 caliber revolver, three boxes of 30-30 rifle cartridges, and $3,612 in cash.

PROCEEDINGS BELOW

Gonzalez was indicted on one count for conspiring to distribute and to possess with the intent to distribute cocaine and on a second count for attempting to commit the same crimes. Upon his entering into an agreement under which he pled guilty to the conspiracy charge, the government dismissed the attempt count. The presentence report attributed...

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