EDNY Judge Imposes Non-Guidelines Sentence On Drug Courier Who Did Not Know Type or Amount of Drug Involved

Although pre-Kimbrough/Gall, the case of United States v. Hurtado, 06 CR 741 (JBW), 2007 WL 432272 (E.D.N.Y. December 4, 2007), involves an interesting sentencing disparity created by the drug guidelines that may prove a fruitful ground for below-Guidelines sentencing arguments in the post-Kimbrough/Gall world.  Hurtado, a drug courier facing a guideline sentence of 46-57 months, driven primarily by the type and weight of the drug involved, was given a below-Guidelines sentence of 19 months, in part because "he did not know that the substance involved was heroin and he was unaware of its weight."  In such circumstances, the court held "an appropriate and just punishment under §3553(a)(2)(A) need not meet the guideline sentence for heroin in such quantities."  In effect, the court highlighted and rejected a sentencing disparity created by the drug guidelines that unfairly treats dissimilarly-situated individuals alike: those who actually know they are handling 4 kilos of heroin and those who simply know they are handling an illegal drug, but do not know the type or the quantity.

The court also held that the shorter sentence did not run afoul of general deterrence principles, since the overall consequences for Mr. Hurtado of this conviction were severe indeed:  "General deterrence will be sufficiently served by a relatively small sentence since he will be deported, leading to grave results for his family." In other words, general deterrence can be satisfied by a little prison and deportation.

Also of note is the fact that the court granted Hurtado a 2-point minor role downward adjustment because he got "cold feet" at the last minute and offered to split his fee with another individual if she would pick up the drug shipment.  The "minor supervisory role," the court held, precluded Hurtado from receiving a 4-point minimal role adjustment, typically given to drug couriers in the Eastern District.  Of course, there are judges who would have imposed a 2-point upward adjustment for this supervisory role, so it is good to see common sense reign on this issue.  The fact that a bit player enlists some reinforcement doesn't change the fact that he is still a bit player.

Altogether, a great set of issues packed in a tiny decision.