U.S. v. Gomez, 476

• Decision Date: 01 August 1994
• Docket Number: D,No. 476,476
• Citation: 31 F.3d 28
• Parties: UNITED STATES of America, Appellee, v. Carmen GOMEZ, Defendant, Natanael Cuevas, Defendant-Appellant. ocket 93-1266.
• Court: U.S. Court of Appeals — Second Circuit

Page 28

31 F.3d 28

UNITED STATES of America, Appellee, v. Carmen GOMEZ, Defendant, Natanael Cuevas, Defendant-Appellant.

No. 476, Docket 93-1266.

United States Court of Appeals, Second Circuit.

Argued Nov. 18, 1993.

Decided Nov. 19, 1993.

Filed Aug. 1, 1994.

Leonard J. Levenson, II, New York City, for defendant-appellant.

Andrew S. Dember, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty., S.D. of N.Y., John W. Auchincloss II, Asst. U.S. Atty., of counsel), for appellee.

Before: LUMBARD, PIERCE and MINER, Circuit Judges.

PER CURIAM: ^*

I.

Defendant-appellant Natanael Cuevas appeals from a judgment entered on April 1, 1993 in the United States District Court for the Southern District of New York (Stanton, J.), after a plea of guilty, convicting him of conspiracy to commit fraud, in violation of 18 U.S.C. Sec. 371, sentencing him to a six-month term of imprisonment, to be followed by a two-year term of supervised release, and imposing a $50 special assessment. The district court refused to make a two-level downward adjustment for minor participation, see U.S.S.G. Sec. 3B1.2, and used a $32,000 loss figure to compute Cuevas' offense level, see id. Sec. 2F1.1. For the reasons that follow, we affirm.

II.

In June of 1991, the Government commenced a large-scale investigation into the drug diversion business. Cuevas was a "first-level diverter" who purchased legally issued prescription drugs from Medicaid recipients. First-level diverters, such as Cuevas, then would repackage the drugs in plastic bags and other containers without lot numbers or expiration dates. The drugs then were sold to "high-level diverters" who in turn sold their inventories to other high-level diverters or directly to pharmacists throughout the metropolitan New York area. The pharmacists then would dispense the drugs at retail prices to unsuspecting consumers.

In June of 1992, the Government swore out a complaint for the purpose of securing arrest warrants for seventy-five individuals for various offenses arising out of its drug diversion investigation. An affidavit submitted by FBI Special Agent Jaclyn Zappacosta in support of the complaint supplied information regarding approximately thirteen first-level diverters, including Cuevas and co-defendant Carmen Gomez. The Government also provided information regarding approximately sixteen high-level diverters. The affidavit detailed various sales of diverted prescription drug sales made by Cuevas and Gomez to a confidential informant ("CI") and an undercover agent.

On June 30, 1992, Cuevas and Gomez were arrested. The Government executed a search warrant at their apartment and recovered ninety-three boxes of prescription drugs, various drugs in plastic bags, loose pills, fifty-four empty Retrovir bottles, a prescription pricing guide and various other items. A seventeen-count indictment was filed against Cuevas and Gomez on July 14, 1992. On January 15, 1992, Cuevas pleaded guilty to Count One of the Indictment, which charged him with conspiring to violate various provisions of the Federal Food, Drug, and Cosmetic Act pertaining to the adulteration and misbranding of prescription drugs, in violation of 18 U.S.C. Sec. 371.

In its presentence report ("PSR"), the Probation Department fixed Cuevas' base offense level at six. It then added five levels to reflect the $52,229 loss previously stipulated by the parties and an additional two levels because the offense involved more than minimal planning. With a two-level downward adjustment for acceptance of responsibility, U.S.S.G. Sec. 3E1.1(a), the adjusted offense level of eleven called for a sentencing range, in Cuevas' criminal history category (I), of eight to fourteen months. Cuevas objected to various aspects of the PSR by letter dated March 11, 1993. He argued, inter alia, that the amount of loss, if any, under section 2F1.1 was "in the range of $2,000 to $5,000" and that he no longer wished to be bound by the $52,229 figure he agreed to in the plea agreement. Cuevas also argued that he was entitled to a two-level reduction for his minor role in the offense.

At the sentencing hearing, the district court recalculated the amount of loss and came up with a figure of $32,000. The district court arrived at the figure by subtracting the value of the prescription drugs recovered and purchased by the Government, reflected in the amount the Government actually paid for the drugs, from their retail value. The district court also rejected Cuevas' contention that he was entitled to a downward adjustment for his minor role in the overall conspiracy, finding that the role in the offense should be determined within the context of the charge to which Cuevas pleaded guilty and the defendants' behavior "with respect to their own particular transactions and the drugs in their own particular apartment." The district court thereafter recalculated Cuevas' offense level to be ten and sentenced him to a term of imprisonment of six months, to be followed by a two-year term of supervised release and a $50 special assessment.

III.

Cuevas first contends that the district court erred in failing to make a two-level downward adjustment to reflect his minor role in the offense. We disagree. Section 3B1.2 of the Guidelines authorizes a two-level decrease in a defendant's offense level if he was a minor participant in the criminal activity, but a defendant must prove by a preponderance of the evidence that he is entitled to this adjustment. See, e.g., United States v. Soto, 959 F.2d 1181, 1187 (2d Cir.1992). The district...