United States v. Santos-Nuez, No. 05 CR. 1232 (RWS), 2006 WL 1409106 (S.D.N.Y. May 22, 2006)
The vast majority of the Santos-Nuez sentencing opinion discusses the issue of double-counting in illegal re-entry cases (for which the Court reduced the defendant's offense level by 3 offense levels) and fast-track disparity (for which the Court reduced the defendant's offense level by 4 offense levels). The Court's recitation of Santos-Ruez's criminal history and the reasons for the sentence it imposed, however, are quite significant because they may be the first circumstance of Fernandez non-5K cooperation benefitting a defendant.
Here are the details:
Santos-Nuez was originally arrested by the NYPD, signed a cooperation agreement with state authorities and was released from custody. Over the next several months, Santos-Nuez provided law enforcement with information that lead to the arrest and conviction of numerous drug dealers. Santos-Nuez, however, was subsequently arrested on federal narcotics charges -- thereby invalidating his state cooperation agreement -- and received both federal and state terms of imprisonment. Santos-Ruez completed his federal time, was transferred to the state, was subsequently paroled by the state, was taken into the custody of the Bureau of Immigration and Customs Enforcement following his parole by the state, and was subsequently deported to the Dominican Republic. And, obviously, Santos-Ruez then illegally re-entered the United States.
In imposing its sentence for illegal re-entry here, the district court (Judge Sweet) specifically noted that it considered "the Defendant's past cooperation with law enforcement" even though Santos-Ruez violated the terms of that cooperation agreement. Even though the Court did not expand upon that short mention of past cooperation, that mere mention is still significant because it may be the first case of Fernandez non-5K cooperation benefitting a defendant. Indeed, it is precisely one of the circumstances under which this author predicted that Fernandez non-5K cooperation would apply -- to wit, the "blown" cooperation agreement.