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U.S. v. COOPER

January 20, 2004.

UNITED STATES OF AMERICA,
v.
CORTEZ COOPER



The opinion of the court was delivered by: BLANCHE MANNING, District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on the sentencing of Defendant Cortez Cooper, who entered a "blind plea" to two counts of knowingly and intentionally possessing with intent to distribute cocaine and cocaine base, in violation of 18 U.S.C. § 841(a)(1). Currently before the Court are Cooper's Objections to the Presentence Investigation Report ("PSR"), prepared by the United States Probation Office ("Probation"), For the reasons that follow, the Court OVERRULES in part and SUSTAINS in part Cooper's Objections.

BACKGROUND*fn1

  A. The Initial Indictment

  Cooper and his ten Co-Defendants were charged in a 39-count Initial Indictment, which alleged that they conspired to distribute cocaine and cocaine base in the Garfield Boulevard area on the south side of Chicago from 1992 until their arrest in 2001. In addition to the conspiracy count (Count 1), the Initial Indictment named Cooper in five separate counts — Counts 12-16, Counts 12 and 13 allege that on May 1, 2001, Cooper knowingly and intentionally possessed with the intent to distribute 62 grams of cocaine and 9.2 grams of cocaine base, in violation of 18 U.S.C. § 841(a)(1), Counts 14 and 15 allege that on December 12, 2001, Cooper knowingly and Page 2 intentionally possessed with the intent to distribute 32 grams of cocaine base and 111 grams of marijuana, in violation of 18 U.S.C. § 841(a)(1), Count 16 alleges that Cooper knowingly and intentionally used a telephone in the commission of a felony, in violation of 21 U.S.C. § 843(b).

  B. Cooper's Proffer

  On February 14, 2002, pursuant to a proffer agreement ("the Proffer Agreement"), the Assistant United Slates Attorney and the FBI special agent, working this case, interviewed Cooper, while he was in custody. The Proffer Agreement specifically stated that:
[i]n the event that [Cooper] is subsequently charged with criminal wrongdoing, anything related to the government by your client during the proffer cannot and will not be used against your client, Cortez Cooper, in the government's case-in-chief, or in aggravation of your client's sentence pursuant to Sentencing Guideline Section 1B1.1.
(Cooper's Objections, Ex. C.) However, the Proffer Agreement also set out that:
[t]he government is completely free to pursue any and all investigative leads derived in any way from the proffer, which could result in the acquisition of evidence admissible against your client in subsequent proceedings. Furthermore, if your client should subsequently testify contrary to the substance of the proffer, or otherwise present a position inconsistent with the proffer, nothing shall prevent the government from using the substance of the proffer [] at sentencing for any purpose. . . .
(Id.)

  During his proffer session, Cooper stated that he first met Co-Defendant Hugh Rogers, the leader and organizer of the conspiracy charged in the Indictment, in grade school, (Cooper's Objections, Ex. D.) Not until 1995, however, did they begin to sell drugs together. According to Cooper, "[o]n approximately three occasions during 1995 through 1997, Cooper and Rogers pooled their money to purchase cocaine," During one occasion, the two purchased an eighth of a kilogram of powder cocaine. The other two transactions were for "either two and one quarter Page 3 ounces or one eighth of a kilogram of powder cocaine, which were subsequently cooked into crack cocaine."

  After these three transactions, Cooper and Rogers did not conduct any drug transactions until April of 2001, when Cooper began delivering cocaine for Rogers, in exchange for $500 a week. On two occasions, Cooper delivered two and one quarter ounces of cocaine to Co-Defendant David Coats, On four other occasions, Cooper delivered between two and one quarter ounces up to four and one half ounces of cocaine to Co-Defendant Ravon Bailey. Cooper also delivered two and one quarter ounces of cocaine to Co-Defendant Theatric Bailey. Additionally, Cooper was present with Rogers at his residence when Roger sold cocaine to Co-Defendants Jeremiah Smith and Bailey.

  In May of 2001, Cooper was arrested while attempting to deliver two and one quarter ounces cocaine to Co-Defendant Coats. After being released in August of 2001, Cooper contends that, although he continued to purchase and sell cocaine, he did not have any further drug dealings with Rogers or any other Co-Defendant,
C. Rogers' Proffers
  The Government also received a detailed proffer from Rogers, The Government interviewed Rogers on at least eight occasions, both before and after Cooper's proffer. The Government initially interviewed Rogers several times between January and March of 2002. In his initial proffer, Rogers gave a long and detailed description of his drug operation from 1991 to 2001. His initial summary of the alleged conspiracy. however, only makes brief reference to Cooper. According to Rogers, when he was released from jail in the summer of 1997, he gave Cooper an ounce of cocaine to sell for him. Cooper, however, never paid Rogers back the money Page 4 which he was owed for the cocaine. The two apparently did not have any further dealings until April of 2001, when Rogers gave Cooper an ounce of crack to sell for him. As before, however, Cooper never paid Rogers any money. To deal with Cooper's debt, Rogers alleges that Cooper agreed to deliver cocaine to Rogers' customers. According to Rogers, Cooper delivered cocaine for Rogers on "approximately five occasions." One of these occasions included the May 1, 2001 delivery to Co-Defendant Coats for which Cooper was arrested and to which he pled guilty in Counts 12 and 13. After Cooper's arrest and release from custody in August of 2001, Rogers alleges that his sole contact with Cooper was the sale of one-half ounce of crack.

  Other than the one ounce deal in August of 1997, Rogers did not mention any other dealings with Cooper before 1997. Not until a March 28, 2003 interview, did Rogers implicate Cooper in his drug dealing activities before 1997. Rogers stated that in the second half of 1994, on "approximately five occasions," he sold Cooper between an eighth and one-half ounces of crack. During 1996, Rogers allegedly sold Cooper crack in "half ounce quantities . . . and occasionally . . . one eighth ounce amounts," Rogers then went on to state the same story as in the other interviews about giving Cooper one ounce of cocaine in May of 1997.

  As in the prior interviews, Rogers then stated that there was no dealing between him and Cooper until April of 2001, at which time Rogers gave Cooper an ounce of crack to sell for him. In contrast to his prior interview, this time, Rogers stated that Cooper paid him $300 and agreed to "pay back the $500," for the rest of the one ounce of crack "by delivering cocaine for Rogers to various customers." According to Rogers, Cooper delivered cocaine to customers on "approximately" six occasions. Rogers also stated for the first time in this interview that Cooper Page 5 accompanied him when he made cocaine deliveries and that Cooper was present when he "cooked powder cocaine into crack cocaine."

  D. The Government's Proposed Plea Agreement and Cooper's Blind Plea

  After Cooper's proffer session, the Government tendered a signed plea agreement ("the Plea Agreement") to Cooper. (Cooper's Objections, Ex. E.) The Plea Agreement required Cooper to plead guilty to "one count of conspiracy to distribute and possess with intent to distribute quantities . . . in excess of five kilograms of cocaine and in excess of 50 grams of cocaine base" and three counts of possession with intent to distribute cocaine and cocaine base and one count of possession with intent to distribute marijuana. In pleading guilty to the conspiracy count, the Plea Agreement required Cooper to admit: (1) criminal conduct from his proffer session; and (2) participation in Roger's drug conspiracy from at least 1995 until December of 2001. The Plea Agreement also required Cooper to admit that by participating in this conspiracy, "it was reasonably foreseeable to him that the conspiracy distributed more than 50 but fewer than 150 kilograms of cocaine, and more than 1.5 kilograms of crack cocaine," Although not setting forth a specific sentence, the Plea Agreement stated that Cooper's minimum sentence would be no less than 10 years. The Plea Agreement also stated that at the time of sentencing, the Government would move for a downward departure under United States Sentencing Guideline ("the Guideline" or "U.S.S.G ") section 5K1.1 and 18 U.S.C. § 3553(c), which would result in a sentence equal to two-thirds of the low end of applicable Guideline or the 10 year statutory minimum sentence. Cooper rejected the Plea Agreement on the ground that he did not believe that he was a part of the Roger's conspiracy from 1995 to 2001. Page 6

  After rejecting the Plea Agreement, on April 3, 2003, Cooper entered a "blind plea" to Counts 12 and 13, which allege that on May 1, 2001, Cooper knowingly and intentionally possessed with the intent to distribute 62 grams of cocaine and 9.2 grams of cocaine base, in violation of 18 U.S.C. § 841(a)(1).

  E. Superceding Indictment

  On April 17, 2003, two weeks after his blind plea, a six-count Superceding Indictment was returned solely against Cooper.*fn2 Count 1 of the Superceding Indictment charged that Cooper conspired with former Co-Defendants Rogers, Clark, Bailey, Coats, and others, to knowingly and intentionally distribute and possess with intent to distribute in excess of five kilograms of cocaine powder and in excess of 50 grams of cocaine base. On May 1, 2003, Cooper entered a plea of not guilty to the Superceding Indictment.

  F. Cooper's PSR

  After Cooper pled guilty to Counts 12 and 13 of the Initial Indictment, Probation calculated his total offense level, using the 2001 edition of the Guidelines, as follows: Base Offense Level (§ 2D1.1(c)) 38 (26 levels based on the quantity of drugs in Counts 12 and ...


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