Possible First Sighting Of Non-5K Cooperation?

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.

Double Counting

United States v. Argentina, No. 05-1560-cr (2d Cir. March 29, 2006) (found here)

Argentina was convicted of conspiracy to distribute and possess with intent to distribute narcotics, possession with intent to distribute narcotics, conspiracy to commit robbery, conspiracy to commit money laundering, and carrying a firearm in furtherance of a drug trafficking crime.  At sentencing, Argentina received a five-level enhancement under U.S.S.G. § 2B1.3(b)(2)(C) for brandishing a weapon during the commission of a robbery.  And, Argentina received a consecutive seven year sentence for carring a weapon in the commission of a crime in violation of 18 U.S.C. § 924(c).  On appeal, Argentina argued that the five-level Guidelines enhancement and the seven year mandatory consecutive sentence constituted "double counting" so far as they related to the weapon at issue.

The Second Circuit disagreed.  Relying specifically on its decision in United States v. Tran, 234 F.3d 798, 811-12 (2d Cir. 2000), overruled on other grounds by United States v. Thomas, 274 F.3d 655 (2d Cir. 2001), the Second Circuit held that "double counting does not occur when a 18 U.S.C. § 924(c) count involved one criminal act, while a firearms enhancement involved a separate criminal act, even if the two acts are ultimately grouped for sentencing purposes."  Thus and with regard to Argentina, the district court did not double count Argentina's use of a weapon "because the 18 U.S.C. § 924(c) offense is linked to the drug offenses, and the firearm enhancement under U.S.S.G. § 2B1.3(b)(2)(C) is linked to the separate robbery offense."

While perhaps not technically double counting, the weapon at issue surely "counted" in two respects in determining Argentina's sentence -- once in connection with his narcotics offense and once in connection with his robbery offense.