CA1: two drug shipments – on fake – turns into sentencing mess

US v. Jaca-Nazario, Nos. 05-2114, 06-2157 vacates the sentence of a guy that entered two pleas to difference offenses that were accepted by different judges.

It is a Puerto Rican drug smuggling case where the “drugs” were not really drugs, but some legal substitute that the government substituted, and would later orchestrate their “loss.”  Strangely enough, after the defendant participated in the sham smuggling, he later participated in real smuggling (via the same channels) that the government didn’t know about.  He was indicted for both smuggling (the sham smuggling after the real smuggling).  His motion to consolidate was denied.  After guilty pleas in both cases, the second judge gave him a safety valve reduction and then, “In order to credit Jaca for time already served, the second sentence was deemed to have run concurrently with the first sentence from the date of Jaca's incarceration until the date of the second sentencing -- around eleven months. The remainder of the second sentence was to run consecutively to the first sentence. The second sentence therefore would start, run for around eleven months concurrently with the first, and then stop for a little more than nine years, only to start again when the first sentence was finished.”  The defendant argued that this was a “suspended sentence” (which isn’t really provided for by statute), but the First says that this was unusual, but not a suspended sentence, because he wouldn’t actually be out of custody.

On appeal the First starts addressing the issues, then stops when it concludes a remand is necessary.  The essential issue is whether the two smuggling episodes are relevant conduct under U.S.S.G. § 1B1.3. The first says it is error to treat sham smuggling as “Relevant conduct” for some purposes, but not others, and it was therefore able to grant the safety valve dispensation that he otherwise wouldn’t be entitled to.  The First concludes that “Because the district court evidently considered the sham cocaine smuggling to be ‘relevant conduct ‘ for the purposes of granting the second ‘safety valve,‘ but did not consider it ‘relevant conduct ‘ for the purposes of calculating offense level, we must vacate Jaca's second sentence.”  As a legal matter, the First determines that “Closer inspection reveals that Jaca's various crimes are part of the same course of conduct because they used the same means to transport the real or fake drugs. 

As to the other arguments, regarding the concurrent sentence, the First says that the older, more lenient version of the guidelines applies.

He also makes an argument regarding “sentencing entrapment” (i.e. where the government tries to get the defendant to do things that will result in a higher sentence that he otherwise wouldn’t do).  The First says that the District Court did consider the argument, but rejected it.  On the merits, it says that undercover operations are permissible, but in this case, where the woman the government used really wasn’t applying too much emotional pressure, it is okay.