U.S. v. Maisonet

• Decision Date: 26 June 2007
• Docket Number: Criminal No. 06-150 (JAG).
• Citation: 493 F.Supp.2d 255
• Parties: UNITED STATES of America, Plaintiff, v. Harold MAISONET, Defendant.
• Court: U.S. District Court — District of Puerto Rico

493 F.Supp.2d 255

UNITED STATES of America, Plaintiff, v. Harold MAISONET, Defendant.

Criminal No. 06-150 (JAG).

United States District Court, D. Puerto Rico.

June 26, 2007.

Joseph C. Laws, Federal Public Defender's Office, Hato Rey, PR, for Defendant.

Scott H. Anderson, United States Attorney's Office, San Juan, PR, for Plaintiff.

MEMORANDUM AND ORDER RE: SENTENCING

GERTNER, District Judge.

Harold Maisonet ("Maisonet") is charged in Counts One and Two of the Indictment with conspiracy to distribute in excess of five kilograms of cocaine under 21 U.S.C. §§ 841(a) and 846. He pled guilty on March 14, 2007, agreeing that he participated in a conspiracy of that scope, but denying his responsibility for over five kilograms. (There was no plea agreement.)¹ Codefendant, Uriel Melendez ("Melendez") was charged with the same offense.

The parties presented diametrically opposed views of the defendant and his role in the offense. The government argued Maisonet was an organizer of a substantial drug conspiracy, conspiring to distribute 50 kilograms over time, even trying to avoid detection by bringing a seven year old boy to a drug negotiation. The resulting sentence it urged was 151 months, nearly two years over the ten-year mandatory minimum.

The defense argued that Maisonet was a first offender, with no contacts in drug trafficking and no resources to accomplish anything remotely like a 50-kilogram deal. He was responsible for the distribution of one kilogram of cocaine, the amount covered by the cash he had with him when the deal was to be consummated, not the amounts the Cooperating Sources ("CS") pressed in their conversations with him. And he denied "using" a seven year old boy to escape detection. The seven year old boy was his son who happened to be with him on the day of a meeting. The sentence Maisonet argued for was 51 months.

But there was a third story, largely supplied by probation in its presentence report. This was a reverse sting. The government provided the drugs; its CS's were the people who pressed for a 50-kilogram drug purchase. And after Maisonet turned one CS down multiple times and made it abundantly clear that he could not possibly buy that amount, the CS offered to sell less, only if Maisonet and whomever he enlisted, signed on to buy the full 50 kilograms in the future. Indeed, the government's arrangements seemed totally contrived — an installment purchase for 50 kilograms, over whatever period of time and for whatever period that Maisonet and Melendez and whomever their associates were could manage it. If there were organizers or leaders in this enterprise at all, it was the government, not Maisonet, led by the CS's, on the one hand, and Maisonet's codefendant, Melendez, on the other, who soon became a cooperating witness. Melendez was in fact a major drug dealer, which is why his cooperation was valued. In the final analysis, all the government appeared to have accomplished was to ensnare a hapless first offender, Maisonet, in a web that it constructed.

After a two-day hearing, I concluded that the mandatory minimum did not apply, that the safety valve did, and I sentenced Maisonet to a sentence within the Guidelines of 41 months.

Most of this decision — as with most sentencing decisions — deals with fact finding to determine the applicability of the statutory mandatory minimum and if so, whether the defendant fits the standards of the "safety valve," 18 U.S.C. § 3553(f), United States Sentencing Commission, Guidelines Manual (U.S.S.G.) §§ 2D1.1(b)(6), 5C1.2. The safety valve enables first offenders who meet certain criterion to escape the rigors of the statute. After the hearing, I found that the government's case on quantity — the 50 kilogram argument — wholly failed to persuade by a fair preponderance of the evidence. Its case on defendant's role was contradicted by its own record, and belied by the language and purpose of the Guidelines' role adjustment provisions, U.S.S.G. § 3B1.1. And as far as Maisonet's proffer, the truthful statement he is required to give to qualify for the safety valve, was concerned, I found that inconsistencies noted by the government between it and an earlier statement were more likely the government's record keeping problems than defendant's lack of candor. I concluded that the defendant did meet the standards of the safety valve.

I then had to address the question of what the appropriate sentence should be, and the issues raised by the Guidelines and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). And while the Supreme Court's decision in Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, ___ L.Ed.2d ___ (2007) was issued after the sentencing in this case, my analysis and approach here is entirely consistent with it.

The sentence I imposed here was a Guideline sentence, not because I found the Guidelines presumptively reasonable; I did not, and under Rita, I should not. I have elsewhere noted instances in which particular Guidelines swept too broadly, including within the same category both the very culpable and far, far less culpable individuals. See United States v. Ennis, 468 F.Supp.2d 228 (D.Mass.2006) (limitations of career offender provisions, U.S.S.G. § 4B1.1), United States v. Germosen, 473 F.Supp.2d 221 (D.Mass.2007)(limitations of aberrant conduct guidelines, U.S.S.G. § 5K2.20), United States v. Lacy, 99 F.Supp.2d 108, 116 (D.Mass.2000) (limitations of drug quantity as a proxy for culpability).

I applied a Guideline sentence because the only detailed information I had was information about the offense not the offender. A judge cannot begin to consider a non-Guideline sentence under Booker or Rita unless lawyers argue for one and present evidence supporting it. Even as to the offense, counsel provided no context for Maisonet's actions e.g., why he decided to follow up on the CS's offer, whether there is any evidence from his lifestyle, his resources, that he is a drug dealer. Counsel here focused on the drug quantity and other Guideline categories but did not develop a record on anything else.²

In short, to reject the Guideline sentence on this record was tantamount to saying — "I believe that drug sentences for non-violent offenders are far too harsh." In fact, I do believe they are too harsh. But my personal views are not relevant, I needed evidence that this sentence was inappropriate punishment for this man. As the Supreme Court said in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), "[i]t has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue." Id. at 113, 116 S.Ct. 2035.

I. FACTS

The following information derives from the presentence report, uncontested by either party, the exhibits, or testimony at the two-day sentencing hearing.

Harold Maisonet has worked all of his life, in a variety of jobs, including selling cars. He lives modestly in a low-middle class community located in the mountainous area of Bayamon, Puerto Rico. He supports his families: He was married once, and had two children, ages 11 and 10. Now divorced, he is in a committed relationship with another woman with whom he also has a child, age 7. At 35, he has absolutely no record except for a minor infraction at Disney World over a decade ago. He completed high school and two years of college in business administration from Inter American University.

In connection with his work selling automobiles, he met a CS named Eliezer. Eliezer and Maisonet bought cars and sold them to third parties. Over the course of a year, they even purchased cars for resale to the other's clients. During this same period, Eliezer repeatedly tried to interest Maisonet in purchasing cocaine, although nothing about Maisonet's past suggested he had ever done so before.

Maisonet turned him down, at least twice.³ Eliezer indicated that he had a "friend from Colombia," a man named "El Viejo," who had some business to do and who wanted "to be introduce[d] to a friend." "El Viejo", as it turned out, was also a CS.

Four months later, in March of 2006, when Maisonet was at the home of Uriel Melendez, whom he had known for six years, Maisonet mentioned Eliezer's proposal. Melendez, who was a drug dealer, and who did have the contacts and resources that Maisonet lacked, asked to be introduced to Eliezer. It is uncontested that without Uriel Melendez — now also cooperating with the government — Maisonet was wholly unable to "do" the deal. (Indeed, as described below, it is not clear the deal could be "done" even with Melendez' support).

There were no tapes of the CS's efforts to get Maisonet involved. Drug Enforcement Administration ("DEA") Special Agent Jose Medina ("Medina") stated that the government does not tape anything until the deal is struck. The CS's are not monitored by the DEA at all until that point. They could go after anyone they chose to, a dealer or, as with Maisonet, a potential one, dangling the government's drugs in front of whomever would "bite."

Over the next month, between March 3, 2006 and April 22, 2006, Maisonet met with Melendez and the CS's and made numerous phone calls. Law enforcement agents recorded the meetings and calls. El Viejo informed Melendez and Maisonet that he had 50 kilograms available to sell and that he would "only" sell it in its entirety for $500,000, a sort of "take it or leave it" approach. Maisonet indicated that he was "interested" but needed time to reach out to associates. Trial Exhibit (Exh.) 3.

Indeed, he kept on calling the CS precisely because he was having trouble getting the money together. At one point, Melendez told Maisonet to inform the two CS's that Melendez had acquired $150,000 as an "advance" on the 50 kilograms and would come up with the...