Federal Judiciary

United States v. Herrera, No. 04-CR-1093 (JBW), 2009 WL 230654 (E.D.N.Y. Jan. 30, 2009)

Herrera pled guilty to a single-count indictment, charging a conspiracy to distribute and possess with intent to distribte heroin.  He also entered into a cooperation agreement with the Government.  But he blew it. 

Herrera faced an advisory Guidelines range of 135 to 168 months imprisonment.  According to the Court, if he had fulfilled the terms of his cooperation agreement with the Government and a Section 5K1.1 motion had been filed, the Court "would have been inclined to order a sentence of time served."  (The Court didn't indicate how much time that would have been.)  He didn't.  Specifically, he was not truthful with the Government, and violated the terms of the cooperation agreement by communicating the content of his discussions with the Government to a co-defendant.  Accordingly, no 5K1.1 motion was filed.

There is a high cost to entering into and then breaching a cooperation agreement with the Government.  Herrrera should be a lesson to all defendants who chose to fly to close to the flame -- sometimes you get burned.