U.S. v. Fernandez

• Decision Date: 03 April 2006
• Docket Number: Docket No. 05-1596-CR.
• Citation: 443 F.3d 19
• Parties: UNITED STATES of America, Appellee, v. Mayra FERNANDEZ, also known as Frank Morena, also known as La Jefa, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

Page 19

443 F.3d 19

UNITED STATES of America, Appellee, v. Mayra FERNANDEZ, also known as Frank Morena, also known as La Jefa, Defendant-Appellant.

Docket No. 05-1596-CR.

United States Court of Appeals, Second Circuit.

Argued: October 21, 2005.

Decided: April 3, 2006.

Lance Croffoot-Suede, White & Case LLP, New York, NY, for Defendant-Appellant.

Raymond J. Lohier, Jr., Assistant United States Attorney (David N. Kelley, United States Attorney, Harry Sandick, Assistant United States Attorney, on the brief), United States Attorney's Office for the Southern District of New York, New York, NY, for Appellee.

Before: MINER and CABRANES, Circuit Judges, and CURTIN, District Judge.^*

JOSÉ A. CABRANES, Circuit Judge.

We address here several questions relating to our review of sentences in the post-Booker era, see United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), including whether: (1) we possess statutory authority to review a sentence within the relevant United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") range for reasonableness; (2) a sentence within the relevant Guidelines range is entitled to a presumption of reasonableness; (3) the duty to consider the sentencing factors of 18 U.S.C. § 3553(a)¹ requires a sentencing judge to discuss on the record during the sentencing proceeding each of the factors or each argument that a defendant makes relating to those factors; (4) 18 U.S.C. § 3553(a)(6), which obligates sentencing judges to consider unwarranted disparities in sentencing, applies to differently situated defendants; (5) we may review a sentencing judge's decision regarding what, if any, weight to ascribe to any particular argument made pursuant to a § 3553(a) factor, when the sentence ultimately imposed is reasonable; (6) a sentencing judge may take a defendant's cooperation with authorities into account pursuant to 18 U.S.C. § 3553(a), even though the Government has not made a motion pursuant to U.S.S.G. § 5K1.1;² and (7) in the circumstances presented, defendant's sentence is unreasonably long.

On March 7, 2003, defendant Mayra Fernandez ("Fernandez") was convicted by a jury in the United States District Court for the Southern District of New York (Denise Cote, Judge) of conspiracy to distribute and to possess with the intent to distribute at least one kilogram of substances or mixtures containing heroin.³ At the sentencing proceeding on March 17, 2005, Judge Cote determined that the advisory Guidelines range was 151 to 188 months and sentenced Fernandez principally to 151 months of imprisonment followed by five years of supervised release. The judgment of conviction was entered on March 24, 2005.

Fernandez, who does not challenge on appeal her conviction or the calculation of the advisory Guidelines range, contends that the District Court failed to consider certain 18 U.S.C. § 3553(a) factors in connection with Fernandez's efforts to cooperate with authorities and the fact that her father, Elias Fernandez ("Elias"), who was a co-conspirator in the charged conspiracy, received a lesser sentence of 135 months of imprisonment. In addition, Fernandez maintains that the length of her sentence was unreasonable. We find that Fernandez's arguments lack merit, and we therefore affirm the judgment of the District Court.

BACKGROUND

Fernandez and Elias conducted negotiations with Joaquin Hernandez, a paid confidential informant for the Drug Enforcement Administration ("DEA") who was posing as a drug dealer with the ability to transport cocaine and heroin from the Dominican Republic to New York. Elias met with Hernandez virtually every day in July and August 2001. Fernandez, who was introduced to Hernandez by Elias, met with Hernandez approximately four times in the spring of 2002. At the first meeting, Hernandez and Elias went to Fernandez's apartment so that Elias could pick up heroin he was storing there. At the second meeting, Elias and Hernandez again went to Fernandez's apartment so that Elias could pick up heroin, but the heroin to be acquired was found to be damp. Fernandez brought out approximately 50 to 100 grams of heroin, dried the heroin using a hair dryer, and gave Elias devices to cut and weigh the heroin. Elias and Fernandez determined that the heroin was not fit for distribution, and Elias did not complete the contemplated sale. At the third meeting of Hernandez, Elias, and Fernandez, which was also held at Fernandez's apartment, the three discussed a plan whereby Hernandez would travel to the Dominican Republic and return to New York with two kilograms of heroin and thirty kilograms of cocaine. It was understood that upon Hernandez's return, Fernandez would store the drugs in her apartment and would help to distribute them. At a fourth meeting, Hernandez and Fernandez discussed Fernandez's drug contacts in Ecuador.

Before Hernandez's projected smuggling trip to the Dominican Republic, an apparently unrelated shooting occurred outside of Fernandez's apartment. The New York City Police Department ("NYPD") searched the building and discovered in the hallway outside Fernandez's apartment a box containing, inter alia, a metal press, latex gloves with the fingers cut off, and glassine envelopes, some of which were stamped "Last Chance." NYPD detectives found similar glassine envelopes in Fernandez's bedroom. The following day, a more extensive search of Fernandez's apartment was conducted and additional drug paraphernalia, including a digital scale, a dust mask, and more glassine envelopes stamped "Last Chance" were recovered.

On August 27, 2002, DEA agents arrested Fernandez. A one-count indictment charging her with participation in a conspiracy to distribute and to possess with intent to distribute one kilogram or more of heroin in violation of 21 U.S.C. § 846 was filed on October 29, 2002. Trial began on March 3, 2003, and it ended four days later, on March 7, when the jury returned a guilty verdict against Fernandez on the sole count of the indictment. In connection with Fernandez's impending sentencing, the United States Probation Office prepared a Presentence Investigation Report ("PSR"), which concluded that under the Guidelines the offense level was 36,⁴ the criminal history category was I, and the Guidelines range was 188 to 235 months.

In Fernandez's sentencing submission, she sought the statutory mandatory minimum sentence, 120 months, either pursuant to a downward departure within the Guidelines scheme or as a non-Guidelines sentence. See United States v. Crosby, 397 F.3d 103, 113 (2d Cir.2005) (explaining that a sentencing judge must consider the advisory Guidelines range and determine whether "([I]) to impose the sentence that would have been imposed under the Guidelines, i.e., a sentence within the applicable Guidelines range or within permissible departure authority, or (ii) to impose a non-Guidelines sentence"). She claimed that a decreased sentence would be appropriate because she had provided assistance to the Government and because an unwarranted disparity would otherwise be created by the fact that Elias, who had pleaded guilty to charges stemming from the same drug conspiracy, had been sentenced by Judge Harold Baer, Jr. principally to 135 months of imprisonment. Fernandez also claimed that her culpability was diminished on account of "cultural factors of physical and sexual abuse" and "mental manipulation and coercion," but these arguments, which the Government contended were not proper bases for leniency here and which the District Court rejected at sentencing, have not been pursued on appeal.

In its sentencing submission, the Government explained that it had first met with Fernandez concerning potential cooperation in February 2004, nearly a year after her conviction, in the belief that she had participated in a 2001 robbery that resulted in a homicide and had been a witness to another homicide. In her initial proffer sessions with the Government, Fernandez admitted to participating in the conspiracy underlying the instant conviction and to other criminal activity, including the 2001 robbery and homicide. She provided information that led to the arrest in March 2004 of her co-conspirator in the 2001 robbery, Juan Carlos Vargas. According to the Government, the information that Fernandez supplied was important, but was not alone enough to support the arrest of Vargas. Following Vargas's arrest, the Government claims, Fernandez began to withhold information relating to her prior criminal activity.

In April 2004, Fernandez threatened to kill another inmate in prison. When prison authorities conducted an investigation, Fernandez apparently was not entirely forthright in recounting the circumstances of the threat. The Government then suspended its proffer sessions with Fernandez, but eventually held one final session in September 2004. At that last session, Fernandez admitted to certain criminal activity about which she had withheld information in prior sessions, but the Government remained unsatisfied with her characterization of the threat she had made against the other inmate, as well as of the circumstances that had led to her earlier transfer between prisons. Consequently, the Government decided not to offer Fernandez a cooperation agreement.

The Government's sentencing submission encouraged the District Court not to accord Fernandez any benefit for her cooperation. Because of her lapses in truthfulness and her erratic behavior, Fernandez was, according to the Government, "useless as a witness for purposes of indicting Vargas and other co-conspirators," and she amounted to a "serious impediment to the Government's prosecution." Gov't's Sentencing Mem. at 19. Furthermore, the Government maintained that in light of Fernandez's behavior, it was "clear that her rehabilitation has not progressed to the point where her efforts at cooperation should lead to a reduced sentence." Id. at 20-21. The Government did not specifically...