United States v. Nieves-Velez
| Citation | 28 F.Supp.3d 131 |
| Decision Date | 26 June 2014 |
| Docket Number | Crim. No. 10–344 PG. |
| Court | U.S. District Court — District of Puerto Rico |
| Parties | UNITED STATES of America, Plaintiff, v. Jose M. NIEVES–VELEZ[9], Defendant. |
Courtney L. Coker, United States Department of Justice, Hato Rey, PR, for Plaintiff.
Francisco M. Dolz–Sanchez, Francisco M. Dolz Law Office, San Juan, PR, for Defendant.
Before the court is defendant Jose M. Nieves–Velez's “Motion for Downward Departure and/or Variance” (Docket No. 569) and the government's opposition (Docket No. 583). After careful consideration, the court GRANTS the defendant's motion.
On April 2, 2012, a jury found defendant Jose M. Nieves–Velez (hereinafter “Defendant” or “Nieves”) guilty of conspiracy to possess with intent to distribute 5 kilograms or more of a controlled substance, in violation of 21 U.S.C. §§ 846 and 841 ; one count of attempt to possess with intent to distribute 5 kilograms or more of a controlled substance, in violation of 21 U.S.C. § 846 ; and one count of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The illegal drug transaction the Defendant was accused of took place on July 7, 2010 and involved sham cocaine because it was part of Operation Guard Shack, a large-scale FBI investigation targeting corrupt police officers in Puerto Rico. Resulting from this investigation, approximately 130 individuals—including more than 90 law enforcement officers—were arrested and charged because of their connection to approximately 125 illegal drug transactions.
Subsequent to his conviction, on October 12, 2012, Nieves moved the court to disregard the evidence presented during trial proving the transaction the Defendant was convicted of involved fifteen (15) kilograms of sham cocaine, but instead, use “ ‘less than 25 grams of cocaine’ which is the minimum amount of cocaine which carries a term of imprisonment under the Sentencing Guidelines.” Docket No. 569 at page 27. In support of his request, the Defendant asserted that the government engaged in sentencing factor manipulations. Firstly, the Defendant argues that the government improperly enlarged the scope and scale of Operation Guard Shack by including him into a transaction when he was just a self-employed personal trainer, who had never been in law enforcement and had no prior criminal record. In addition, Nieves claims the government manipulated the quantity of drugs dealt in the transaction with the purpose of hiking his base offense level under the federal sentencing guidelines. See id. In conclusion, the Defendant requests that the Court use the minimum amount of cocaine that carries a term of imprisonment under the Sentencing Guidelines.1 See id. at page 24.
On the same day that Nieves filed this motion, the court sentenced him to a term of imprisonment of 120 months as to the controlled substances counts to run concurrently with each other and 60 months of imprisonment as to the firearm count to run consecutively, for a total term of imprisonment of 180 months.See Docket No. 572. During the sentencing hearing, the court discussed the merits of the Defendant's motion and gave the government a term to file its response. The court further stated that judgment would not be entered until the resolution of the Defendant's pending motion, and if the subsequent ruling favored Nieves, a re-sentencing hearing would be scheduled. See id. The government complied with the court's deadline and on October 26, 2012, the government filed a 3–page opposition to the Defendant's request for a downward departure in his sentence rejecting that the government engaged in the type of extraordinary misconduct that would give way to a sentencing manipulation claim. See Docket No. 583.
A. Sentencing Factor Manipulation
Sentencing factor manipulation “occurs when the government ‘improperly enlarge[s] the scope or scale of [a] crime’ to secure a longer sentence than would otherwise obtain.” U.S. v. DePierre, 599 F.3d 25, 28–29 (1st Cir.2010) (citing United States v. Vasco, 564 F.3d 12, 24 (1st Cir.2009) ). In essence, “[a] finding of sentencing factor manipulation authorizes a sentencing court to depart from the guideline sentencing range, as well as from statutory minimums.” Person v. U.S., 27 F.Supp.2d 317, 325 (D.R.I.1998) (citing United States v. Montoya, 62 F.3d 1, 3 (1st Cir.1995) ).
DePierre, 599 F.3d at 29. “The defendant bears the burden of establishing sentencing factor manipulation by a preponderance of the evidence, ..., and a district judge's determination as to whether improper manipulation exists is ordinarily a factbound determination subject to clear-error review.” U.S. v. Lucena–Rivera, 750 F.3d 43, 55 (1st Cir.2014) (internal citations and quotation marks omitted).
The First Circuit Court of Appeals has “recognized that because ‘[b]y definition, there is an element of manipulation in any sting operation,’ ... relief for sentencing factor manipulation is reserved for only ‘the extreme and unusual case.’ ” Lucena–Rivera, 750 F.3d at 55 (citing United States v. Fontes, 415 F.3d 174, 180 (1st Cir.2005) ). When the matter is raised, “[i]t requires us to consider whether the manipulation inherent in a sting operation, ..., must sometimes be filtered out of the sentencing calculus.” U.S. v. Connell, 960 F.2d 191, 194 (1st Cir.1992) (internal citations omitted) In fact, the First Circuit Court of Appeals in Connell noted that “the question brings to mind much that has been written and stated about the opportunities that the sentencing guidelines pose for prosecutors to gerrymander the district courts' sentencing options and thus, defendants' sentences.” Id. To that effect, the Court in Connell stated that:
It cannot be gainsaid that the sentencing guidelines, by their very nature, may afford the opportunity for sentencing factor manipulation, particularly in sting operations. We can foresee situations in which exploitative manipulation of sentencing factors by government agents might overbear the will of a person predisposed only to committing a lesser crime.This danger seems especially great in cases where the accused's sentence depends in large part on the quantity of drugs or money involved.
Id. at 196 (emphasis ours). Nevertheless, despite the threshold being high, “should a sufficiently egregious case appear, the sentencing court has ample power to deal with the situation either by excluding the tainted transaction from the computation of relevant conduct or by departing from the GSR [guideline sentencing range].” Id.
In the case at hand, the Defendant went to trial, but did not testify. Thus, for purposes of this analysis, we will draw some facts from the trial proceedings, from the transcript of the sentencing hearing and the content of the presentence investigation report (PSI Report). See Connell, 960 F.2d at 192–193 (citing United States v. Garcia, 954 F.2d 12, 14 (1st Cir.1992) ).
It stems from these sources then that Nieves was a 39–year–old first-time offender, who at the time of his conviction had been married for twenty years and fathered two children with his wife. During an interview prior to the preparation of the PSI Report, Nieves told the United States Probation Officer (USPO) in charge that See Docket 534 at page 9 (emphasis ours). In fact, the government admits in its response that Nieves “had no contact with agents or confidential informants of the federal government until he arrived at the undercover apartment for his drug transaction.” Docket No. 583 at page 3. Moreover, at the time of his sentence, Nieves asserted that he decided to allow the transaction to take place and stayed quiet because of safety concerns for himself and his family stemming from the position he was in at the time of the events he was convicted of, including the type of people he was dealing with.
The First Circuit has held that emotional pressure could presumably be an adequate basis in a sentencing factor manipulation setting. See U.S. v. Jaca–Nazario, 521 F.3d 50, 58 (1st Cir.2008). The record in this case indicates, and the government does not reject in its response, that the Defendant was lured into an activity which he may not have even known was illegal, only to have his vulnerability exploited at a later time, see Connell, 960 F.2d at 195, when he realized he was in the middle of a drug-trafficking transaction surrounded by other armed individuals. Moreover, Nieves suggests that, given the situation he was in and the kind of people he was surrounded by, he did not have a...
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Forestier-Figueroa v. United States
... ... United States , 37 F.3d at 772 (quoting Hill v. United States , 368 U.S. at 428); Landron-Class v. United States , ___ F. Supp. 3d ___, 2015 WL 629301 at *5 (D.P.R. Feb. 11, 2015). Petitioner received a better sentence than the one negotiated. Cf. United States v. Nieves-Velez , 28 F. Supp. 3d 131, 133-34 (D.P.R. 2014). Accordingly, it is my recommendation that petitioner's motion to vacate, set aside or correct his sentence under 28 U.S.C. 2255 (Docket No. 1) be DENIED. Based upon the above, I also recommend that no certificate of appealability be issued, because there ... ...