U.S. v. Gallego, S2 95 Cr. 284(LAK).

• Decision Date: 23 October 1996
• Docket Number: No. S2 95 Cr. 284(LAK).,S2 95 Cr. 284(LAK).
• Citation: 943 F.Supp. 343
• Parties: UNITED STATES of America v. George GALLEGO, Defendant.
• Court: U.S. District Court — Southern District of New York

943 F.Supp. 343

UNITED STATES of America v. George GALLEGO, Defendant.

No. S2 95 Cr. 284(LAK).

United States District Court, S.D. New York.

October 23, 1996.

Peter K. Vigeland, Special Assistant United States Attorney, Robin Abrams, Assistant United States Attorney, Mary Jo White, United States Attorney, for U.S.

Richard W. Brewster, Stephanie Carvlin, for Defendant.

MEMORANDUM OPINION

KAPLAN, District Judge.

The defendant, George Gallego, pleaded guilty to a superseding indictment charging him with conspiracy to commit murder in connection with the January 1993 robbery of a Postal Service truck and the execution-style killing of the driver. The guideline range in his case was 360 months to life. The Court sentenced him to a term of 480 months. The defendant now moves, pursuant to FED.R.CRIM.P. 35(c), to correct the sentence on the ground that the Court impermissibly considered the defendant's failure to tell the government what he knew in fixing the sentence. He contends that the sentence was inappropriate because the Court, in reaching its conclusion concerning his lack of cooperation, must have relied upon what transpired in proffer sessions in which the defendant participated despite the government's agreement that his statements on those occasions would not be used against him. He argues also that consideration of his refusal to cooperate against others violated U.S.S.G. § 5K1.2.

1. Rule 35(c) permits correction only of arithmetical, technical or other clear errors in a sentence. As the Advisory Committee Note indicates, it is "very narrow" and "is not intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing guidelines or for the court simply to change its mind about the appropriateness of the sentence." 3 CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL 2D § 585.2 (Supp. 1996). Accordingly, the motion would be denied even if it had merit, which it does not.

2. The defendant is mistaken in assuming that the Court relied upon anything that took place in proffer sessions with the government. It relied solely upon its knowledge derived from having taken this defendant's plea and presided at the trial that resulted in the conviction of his brother and another for the murder. The conclusion that this defendant refused to assist the government in the prosecution of others involved in the crime was obvious from those events.

First, this defendant was charged in the first superseding indictment with having conspired with his brother, Alfredo Gallego, Steven Martinez, and others. When this defendant pleaded guilty to a superseding indictment, he structured his allocution to avoid implicating anyone else while at the same time admitting his own participation in a conspiracy to commit the murder.

Second, the trial of Alfredo Gallego and Steven Martinez, which included the testimony of a fourth co-conspirator named Rosado, made it absolutely clear that Alfredo Gallego, Martinez and Rosado all were parties to the conspiracy. George Gallego was conspicuous by his absence as a government witness at the trial.

In these circumstances, the fact that George Gallego declined to testify against his brother and others, which was the point of the Court's remark (Sentencing Minutes 12-13), is indisputable.

3. Despite George Gallego's plea of guilty, the government recommended that he be sentenced at the top of the guideline range, which was life imprisonment.¹ The defendant argued for a sentence at the bottom of the range based, in part, on the premise that he should receive some credit for having pleaded guilty. The Court indicated that it intended to give some credit for the guilty plea, but not as much as it might have given had the defendant cooperated against the other members of the conspiracy.

U.S.S.G. § 5K1.2 is contained in Part 5K of the guidelines, which deals exclusively with departures from the applicable guideline range. It provides that "[a] defendant's refusal to assist authorities in the investigation of other persons may not be considered as an aggravating sentencing factor." Gallego claims that the Court's consideration of his refusal to cooperate against others in determining how much of a reduction below the top of the guideline range to give violated this provision. The Court disagrees.

To begin with, there is a difference between considering a factor in determining the extent of a benefit that will be extended and considering it as an aggravating factor. Although the distinction seems somewhat semantic, it is well established in the cases. In United States v. Stratton, 820 F.2d 562 (2d Cir.1987), for example, the Court of Appeals relied upon just this distinction, saying:

"This court ... has drawn a distinction between increasing the severity of a sentence for a defendant's failure to cooperate and refusing to grant leniency. `It is one thing to extend leniency to a defendant who...