Case 1:15-cr-00492-GHW Document 33 Filed 07/25/16 Page 1 of 29

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
UNITED STATES OF AMERICA
-v.DANIEL BARRERA BARRERA,
a/k/a Loco Barrera,

UNDER SEAL

15 Cr. 492 (GHW)

15 Cr. 211 (GHW)
S1 07 Cr. 862 (GHW)

:
:

Defendant.
:
---------------------------------------------------------------x

GOVERNMENTS SENTENCING MEMORANDUM

PREET BHARARA
United States Attorney for the
Southern District of New York
One St. Andrews Plaza
New York, New York 10007

Andrea Surratt
Assistant United States Attorney
- Of Counsel
Adam Fels
Special Assistant United States Attorney
- Of Counsel -

Case 1:15-cr-00492-GHW Document 33 Filed 07/25/16 Page 2 of 29

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
UNITED STATES OF AMERICA
-v.DANIEL BARRERA BARRERA,
a/k/a Loco Barrera,

UNDER SEAL

15 Cr. 492 (GHW)

15 Cr. 211 (GHW)
S1 07 Cr. 862 (GHW)

:
:

Defendant.
:
---------------------------------------------------------------x
The Government respectfully submits this memorandum in advance of the sentencing of
Daniel Barrera Barrera, a/k/a Loco Barrera, (Barrera) scheduled for July 25, 2016 at 4:00 p.m.
For decades, Barrera manufactured hundreds of tons of cocaine annually in Colombia, and
trafficked the narcotics to various parts of the world, including the United States, and laundered
tens of millions of dollars in proceeds from that trafficking. For these reasons, and the reasons set
forth below, the Government respectfully recommends that Barrera be sentenced to a term of 420
months imprisonment. 1
I.

PROCEDURAL HISTORY
Barrera will appear before this Court for sentencing on three separate indictments,

originating out of three separate districts (the Districts). A grand jury sitting in the Southern
District of New York (SDNY) returned superseding indictment S1 07 Cr. 862 on or about April
22, 2010, which charged Barrera in one count with, from in or about 1998 through in or about

As discussed below, the Government agrees with the Probation Office that the advisory
Guidelines range for Barrera is life imprisonment. The United States has made assurances to the
Government of Colombia, from where Barrera was extradited, that it will not seek a term of life
imprisonment.
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April 2010, conspiring to (1) import into the United States five kilograms and more of cocaine,
and (2) manufacture and distribute five kilograms and more of cocaine, in violation of Title 21,
United State Code, Sections 812, 952(a), 959, 960(a), 960(b)(1)(B), and 963. Barrera pled guilty
to the charge in superseding indictment S1 07 Cr. 862 in the Southern District of New York on
November 20, 2014 without the benefit of a plea agreement.
Superseding indictment S2 10 Cr. 288 (ILG) was returned by a grand jury sitting in the
Eastern District of New York (EDNY) in June 2010. It charged Barrera in one count with, from
approximately January 1, 2002 through June 7, 2010, conspiring to launder money that constituted
the proceedings of narcotics trafficking, in violation of Title 18, United States Code, Section
1956(h). Barrera pled guilty to Count One of superseding indictment S2 10 Cr. 288 (ILG) in the
EDNY on October 8, 2014 without the benefit of a plea agreement.

The indictment was

subsequently transferred to the Southern District of New York for sentencing, and assigned docket
number 15 Cr. 211.
Superseding indictment S1 10 Cr. 20587 was returned by a grand jury sitting in the
Southern District of Florida (SDFL) in September 2010. It charged Barrera in two counts. Count
One charged Barrera with conspiracy to import narcotics into the U.S. from between 1998 and
2010, in violation of Title 21, United States Code, Sections 959, 960, and 963. Count Two charged
Barrera with conspiracy to import narcotics into the U.S. from between 1992 and 2010, in violation
of Title 21, United States Code, Sections 952, 960, and 963. On or about June 24, 2015, the SDFL
case United States v. Barrera-Barrera, S1 10 Cr. 20587, was transferred to the Southern District
of New York for the purposes of a guilty plea and sentencing pursuant to Federal Rule of Criminal
Procedure 20. Accordingly, on or about July 30, 2015, the SDFL case was assigned SDNY docket

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number 15 Cr. 492 and wheeled out to the Honorable Gregory H. Woods. Barrera pled guilty to
the charge in this indictment on or about January 21, 2016 without the benefit of a plea agreement.
II.

BARRERAS GUIDELINES RANGE

Barreras Presentence Investigation Report (PSR), based on the information provided by

the prosecutors, concluded that Barrera was responsible for the production of a massive amount of
cocaine 30,000 kilograms a month at his cocaine production laboratories in Los Llanos,
Colombia. (PSR 30). The PSR also concluded that Barrera employed a group of armed guards
and enforcers, many of whom were used to threaten or kill individuals who owed the drug
trafficking organization money or otherwise posed a threat to the organization. (PSR 33).
Barrera himself would frequently give orders to his underlings to kill individuals. (Id.). Regarding
the money laundering conviction, the PSR concluded that between late 2003 and May 2008,
Barrera sold 91,170 kilograms of cocaine to Lucho Caicedo for approximately 187 million U.S.
dollars. (PSR 43).
Because Barrera was held responsible for at least 150 kilograms of cocaine, his base
offense level is 38, the highest base offense level for drug offenses. (PSR 54). The Probation
Office applied a two-level enhancement because a dangerous weapon was possessed, and another
two-level enhancement because the cocaine was exported through the use of a semi-submersible,
a four-level enhancement because he was an organizer or leader of a criminal activity involving
five or more participants, and a two-level enhancement because he was convicted of a money
laundering offense, resulting in an adjusted offense level of 48. (PSR 54, 55, 57). With a threelevel reduction for timely acceptance of responsibility, Barreras offense level was reduced to 45.
Based on a Criminal History of I, Barreras advisory guideline range is life imprisonment.

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Notable were all of the guideline enhancements Barrera did not receive under the
calculation in the PSR. He did not receive a two-level enhancement under U.S.S.G. 2D.1(b)(2)
for using violence or directing the use of violence, a two-level enhancement under U.S.S.G.
2D.1(b)(12) for maintaining a premises for manufacturing a controlled substance, or a two-level
enhancement under U.S.S.G. 2D1(b)(15) for committing the offense as part of a pattern of
criminal conduct engaged in as a livelihood because these enhancements first appeared in the
November 2010 version of the Sentencing Guidelines. While the Government has information
that Barrera continued running his drug enterprise after the effective date of the November 2010
Guidelines, the criminal conduct described in the indictments all took place prior to the issuance
of those Guidelines. Nor does the PSR recommended that Barrera receive an upward departure
above base offense level 38 because the quantity for which Barrera was held responsible was at
least 10 times the minimum quantity required for level 38 (150 kilograms of cocaine). See
U.S.S.G. 2D1.1 Commentary, para. 16 (2009).

Although Barrera murdered numerous

individuals, the PSR did not follow the cross-reference provision found in U.S.S.G. 2D1.1(d)(1),
which would have resulted in a final offense level of 46 (base offense Level 43, plus two-level
enhancement for money laundering, four-level enhancement for leadership and three-level
reduction for timely acceptance of responsibility).
On July 14, 2016, Barrera, through counsel, filed his objections to the PSRs conclusions.
He objected to the amount of cocaine attributed to him in the PSR as well to the two-level
enhancement for use of a submersible in the exportation of cocaine.
As for the first objection, the Government has agreed to use the most conservative figure
of Barreras cocaine production provided by its witnesses 5,000 kilograms of cocaine per month.

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It is the Governments understanding that Barreras counsel does not object to this figure.
As for the second objection, Barrera concedes, as he must, that a submersible vessel or
semi-submersible vessel was used in the exportation of cocaine, and that the version of the
Guidelines which he chose (because it allowed him to avoid a number of additional applicable
enhancements) provides for a two-level enhancement for the use of a submersible vessel or semisubmersible vessel was used in the exportation of cocaine. (Def. Sub. at 8). However, he argues
that because the Government has no evidence that Barrera used the submersible or semisubmersible vessel in 2009 the first year that the enhancement appeared in the sentencing
guidelines that it would be unfair to assess the two-level enhancement for the submersible or
semi-submersible vessel against Barrera.
Under the one-book rule set forth at U.S.S.G. 1B1.11, this Court must use the version
of the Guidelines Manual in effect on the date that the defendant is sentenced, unless doing so
would violate the ex post facto clause of the Constitution, in which case the court must use the
version of the Guidelines in effect on the date that the offense of conviction was committed.
U.S.S.G. 1B1.11. According to the Commentary to this section, the last date of the offense of
conviction is the controlling date for ex post facto purposes, U.S.S.G. 1B1.11, Commentary para.
2, meaning if a conspiracy runs through the date of an indictment, then the end date of the offense
is the date of the indictment. Here, there is no ex post facto issue because the last date of the
offense of conviction was nearly a year after the Sentencing Commission issued the submersible
and semi-submersible enhancement provision.
Instructive on this issue in the Second Circuits decision in United States v. Kumar, 617
F.3d 612 (2d Cir. 2010). In that case, a defendant argued that the use of a newly-drafted sentencing

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Guideline enhancement violated the ex post facto clause of the Constitution when the conduct
justifying the enhancement predated the Guidelines publication. The Second Circuit disagreed,
and held that the one-book rule set forth in 1B1.11(b)(3) does not violate the Ex Post Facto
clause when applied to the sentencing of offenses committed both before and after the publication
of a revised version of the Guidelines. Kumar, 617 F.3d at 628. Central to the Courts analysis
was the fact that the defendants in that case continued to commit crimes after the passage of the
new, disadvantageous Guidelines, and therefore [t]hat the consequences of the second offense
included the application of the post-amendment Guidelines to all offenses considered at the
defendants sentencing was fully apparent prior to the commission of the crimes that triggered
those consequences. Similarly, Barrera was on notice when he continued to engage in the drug
conspiracy after the November 1, 2008, passage of the submersible or semisubmersible vessel
enhancement that he could be held accountable for the earlier use of the submersible vessel.
Barrera further notes that the Governments Pimentel letter prepared in advance of
Barreras guilty pleas in these cases did not include an enhancement for use of a semisubmersible
vessel. (Def. Sub. at 8). As this Court knows, the Government is in no way bound by the
Guidelines calculation in its Pimentel letters, which expressly state that the letter sets forth the
current position of the U.S. Attorneys Office and that nothing in [the] letter limits the right of
the Office to (1) to change its position at any time as to the appropriate Guidelines calculation in
this case, even if that change is based, in whole or in part, on information that was in the
Governments possession as of the date of this letter; and/or (2) to present to the Court or the
United States Probation Office, either orally or in writing, any and all facts and arguments relevant
to sentencing that are available to the Office at the time of sentencing.

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Barreras remaining objection to the PSR should be overruled.

III.

SURRENDER AND COOPERATION ATTEMPTS

In his sentencing submission, Barrera dedicates considerable time to explaining to the

Court what he characterizes as efforts at providing substantial assistance. (Def. Sub at 3). As
discussed below, the Districts involved in Barreras prosecution were clear with Barreras attorney
that Barrera was not a Government cooperator, and would not be receiving a downward departure
motion pursuant to Section 5K1.1.
Barrera eventually learned of the three indictments pending against him and, in around July
2011, retained Ruben Oliva, Esq. to represent him and to attempt to negotiate the terms of
surrender. In October 2011, Mr. Oliva presented to the Districts prosecutors assigned to Barreras
case a set of terms under which Barrera would agree to cooperate. The prosecutors told Mr. Oliva
that they would consider the terms, but would first need to review a detailed attorney proffer of
Barreras potential cooperation.
On November 22, 2011, Mr. Oliva provided

. In
response, SDFL prosecutor Adam Fels asked Mr. Oliva not to have any conversations with any
agents about potential information or cooperation until the prosecutors assigned to Barreras case
could collectively make a decision about how or whether to proceed with cooperation. Mr. Oliva
responded that he understood that absent a cooperation agreement issued by the prosecutors, his

Case 1:15-cr-00492-GHW Document 33 Filed 07/25/16 Page 9 of 29

client would not receive any benefit from the information, but that he felt compelled to pass along
the information given its potential importance to the United States. The agents ultimately stopped
acting on the information that Barrera had provided.
In February 2012, Mr. Oliva suggested to the prosecutors that his client had information
regarding

, and reiterated that these efforts to cooperate, although

noteworthy, would not constitute substantial assistance to the Government until and if a
cooperation agreement was reached between the Government and his client. In March 2012, Mr.
Oliva provided a detailed proffer of Barreras potential cooperation to the Government. In late
May 2012, Mr. Oliva and the prosecutors met to discuss the potential cooperation, and Mr. Olivas
revised terms of surrender for Barrera. The Districts prosecutors agreed to review Mr. Olivas
proposals. Over the next four months, the prosecutors considered various proposals to evaluate
the feasibility of Barreras surrender and Mr. Olivas terms. In early September of 2012, the
prosecutors learned after the fact -- that Barrera had helped provide
Mr. Oliva had not previously
asked the prosecutors whether they had wanted Barreras assistance on
(had he done so, the prosecutors would have rejected the offer as they uniformly had in the past).
The prosecutors were continuing to consider and discuss Mr. Olivas proposal for Barreras
surrender when Barrera was captured on September 18, 2012.
In 2013, after Barrera had been sent to Colombia and then extradited to the United States,
Mr. Oliva provided the prosecutors with a ten-page proffer containing details of Barreras potential
assistance and cooperation with the Government. After receiving some answers to follow-up
questions, the Government decided that Barreras proffered potential assistance and cooperation

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while far-ranging did not implicate sufficiently worthy targets to justify a downward departure
motion pursuant to Section 5K1.1 and possible sentence reduction for a defendant of Barreras
criminal culpability and magnitude. The Government explained this position to Mr. Oliva and did
not offer a cooperation agreement, the document that Mr. Oliva had acknowledged many times in
the past was the sine qua non to trigger any sort of credit for any of Barreras prior efforts to
cooperate.

Indeed, Barrera and

his counsel knew, at least as early as November 2011, that the Government would reject Barreras
offers to cooperate until Barrera surrendered, but Barrera and his counsel apparently decided that
it would be more advantageous to ask for forgiveness from this Court (and a variance) rather than
continue to ask for permission from the prosecutors to cooperate.
The Government certainly does not dispute the inherent authority of the Court to recognize
acts of cooperation even when the Government does not seek a reduction under U.S.S.G. 5K1.1
or Rule 35(a) of the Federal Rules of Criminal Procedure. However, under the circumstances
presented here, Barrera should not be given the benefit of gaming the system and depriving the
Government of its considered judgment in balancing the potential value of proffered cooperation
against the harm caused by a sentencing reduction of a particularly dangerous and prolific
narcotrafficker.
At the time of his capture, Barrera was one of the largest narcotraffickers in the world and
was one of the most-wanted individuals in South America. In light of Barreras significance and

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stature, the Government made clear to Barreras counsel from the outset that while it would
consider cooperating Barrera, it would only do so if the potential cooperation was significant
enough to merit cooperating someone of Barreras high criminal stature.
From the outset, Barrera and his attorney understood that they first had to get approval
from the prosecutors before any cooperation would be approved, and also understood that the
Government was extremely reluctant to approve any such cooperation, particularly before Barrera
surrendered to law enforcement. Indeed, the Government turned down Barreras intelligence
regarding

because it was not ready to determine

whether

was worth the potential future reduction to Barreras

sentence. After this incident, Barrera apparently provided information regarding

.

to say, had Barrera or Mr. Oliva asked for the prosecutors

agreement to enter into a cooperation agreement before providing this information, the prosecutors
would have rejected Barrera again.
This blatant attempt to subvert the well-recognized system of defendant cooperation should
not be rewarded. The requirement of Government authorization prior to cooperative efforts plays
a critical role in ensuring that especially significant leaders and organizers of large criminal
syndicates do not obtain a sentencing benefit unless the targets of the proposed cooperation are
significant enough to warrant the sentencing benefit. Were this Court to consider Barreras

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unauthorized cooperation in crafting a sentence, it would reward Barrera for his avoidance of the
checks and balances carefully crafted into the system. Moreover, it would provide a road map for
future offenders: if the prosecutor does not expressly authorize the cooperation of a particular
defendant for any one of a number of reasons, simply cooperate without authorization and get the
Court to recognize the cooperation anyway. Barreras request to seek cooperation consideration
under such circumstances should be rejected.
Nor should this Court consider Barreras suggestion that he assisted the Government by
encouraging other related drug traffickers to come forward and cooperate with the Government.
Again, Barrera was never asked or authorized to reach out to any other criminal targets or
defendants and convince them to cooperate.

.2
The Government ultimately chose to forego the potential benefit of Barreras cooperation

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because it decided that the potential benefit was outweighed the undesirability of a sentencing
reduction for Barrera. This Court should not provide Barrera with a reward for subverting the
rules and provide Barrera with any consideration for his uninvited efforts to receive a sentencing
reduction.
On page 27 of his Sentencing Memorandum, Barrera seeks sentencing consideration
because, he claims, it is widely known in Colombia that Mr. Barrera cooperated with the
Government and as such, the Court should consider the serious consequences of Mr. Barreras
cooperation for his family. Again, the Government states in no uncertain terms that Barrera is
not cooperating with the Government. If, as he asserts, it is widely known in Colombia that
Barrera is a cooperator, then this situation is certainly not because of the Governments conduct or
actions. The Government has not taken any steps to indicate to anyone that Barrera is a cooperator,
for the simple reason that Barrera is not a Government cooperator. Again, Barrera is attempting
to leverage his uninvited, unauthorized, and undesired efforts to cooperate into a variance with this
Court. This attempt should be rejected out of hand.
IV.

SECTION 3553 FACTORS

The United States Sentencing Guidelines still provide strong guidance to the Court

following United States v. Booker, 543 U.S. 220 (2005), and United States v. Crosby, 397 F.3d
103 (2d Cir. 2005). Although Booker held that the Guidelines are no longer mandatory, it also
held that the Guidelines remain in place and that district courts must consult the Guidelines and
take them into account when sentencing. Booker, 543 U.S. at 264. As the Supreme Court stated,
a district court should begin all sentencing proceedings by correctly calculating the applicable
Guidelines range that should be the starting point and the initial benchmark. Gall v. United

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States, 552 U.S. 38, 49 (2007).

After that calculation, however, a sentencing judge must consider seven factors outlined in
Title 18, United States Code, Section 3553(a): (1) the nature and circumstances of the offense
and the history and characteristics of the defendant, 18 U.S.C. 3553(a)(1); (2) the four legitimate
purposes of sentencing, as set forth below, see id. 3553(a)(2); (3) the kinds of sentences
available, id. 3553(a)(3); (4) the Guidelines range itself, see id. 3553(a)(4); (5) any relevant
policy statement by the Sentencing Commission, see id. 3553(a)(5); (6) the need to avoid
unwarranted sentence disparities among defendants, id. 3553(a)(6); and (7) the need to provide
restitution to any victims, id. 3553(a)(7). See Gall, 552 U.S. at 50 & n.6.
In determining the appropriate sentence, the statute directs judges to impose a sentence
sufficient, but not greater than necessary, to comply with the purposes of sentencing:
(A)

to reflect the seriousness of the offense, to promote respect for the law, and
to provide just punishment for the offense;

(B)

to afford adequate deterrence to criminal conduct;

(C)

to protect the public from further crimes of the defendant; and

(D)

to provide the defendant with needed educational or vocational training,

medical care, or other correctional treatment in the most effective manner.

18 U.S.C. 3553(a)(2).
With respect to the sixth Section 3553(a) factor, the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of similar conduct,
the Second Circuit has held that the varying degrees of culpability and cooperation between the
various defendants is a reasonable basis upon which to impose different sentences. United States
v. Ebbers, 458 F.3d 110, 129 (2d Cir. 2006); see also United States v. Docampo, 573 F. 3d 1091,

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1101 (11th Cir. 2009) (holding that there is no unwarranted disparity when a cooperating defendant
receives a substantially shorter sentence than a defendant who does not cooperate).
A. The Nature and Circumstances of the Offense, and the Need to Reflect the Seriousness
of the Offense
There is no question that Barreras offense is tremendously serious. Indeed, there can be
little dispute that Barrera was one of Colombias most notorious, prolific, and violent drug
traffickers until his arrest in August 2012. 3 From 1998 until 2010, Barrera ran a cocaine
manufacturing and trafficking syndicate out of Colombia. He purchased the raw cocaine base or
paste from the FARC, which has been dedicated to the violent overthrow of the democratically
elected Government of Colombia, and has been the worlds largest supplier of cocaine and has
engaged in bombings, massacres, kidnappings, and other acts of violence within Colombia. After
purchasing the raw cocaine base from the FARC, Barrera converted the raw cocaine into powder
at laboratories he owned and operated in an area of Colombia controlled by the since-demobilized
terrorist group, Autodefensas Unidas de Colombia (the AUC). For years, the AUCs main
political objective was to defeat the FARC in armed conflict, and it financed its terrorist activities
through the proceeds of cocaine trafficking in AUC-controlled regions of Colombia. At the time
of Barreras criminal conduct, the FARC and the AUC were both designated by the U.S.
Department of State as Foreign Terrorist Organizations.
After processing the cocaine powder in his laboratories, Barrera arranged for the shipment

Indeed, in 2012, after Barrera was captured, Colombian president Juan Manuel Santos
stated, in televised remarks to the people of Colombia, that Barrera is the last of the great
(crime) bosses. This is a very forceful blow. . . This is a very important step toward the security
that we want to achieve in this country.
See http://www.cnn.com/2012/09/18/world/americas/venezuela-drug-lord-captured.
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and transportation of the cocaine powder to locations on four continents, including the United
States. Although Barrera purchased raw materials for cocaine production from the FARC, he was
able to maintain his network of cocaine-processing laboratories in AUC-controlled territory, in
part by paying monthly taxes to the AUC. The fees Barrera paid to the AUC also allowed him
to safely move the processed cocaine through and out of Colombia.
Each month, Barrera processed thousands of kilograms of raw cocaine base into about the
same amount of cocaine powder, resulting in hundreds of tons of cocaine annually. In total,
Barrera reaped tens of millions of dollars of profits from cocaine trafficking, which he laundered
through illicit means.
As this Court is undoubtedly aware, there are occasions when Government agrees to enter
into cooperation agreements with defendants who are seeking to provide substantial assistance to
the Government. To be sure, the use of cooperators is a critical investigative technique, especially
in cases involving foreign drug dealers and kingpins such as Barrera.

. However,
when faced with the prospect of entering into a cooperative posture with an individual such as
Barrera, who, based on the numerous statements by a variety of reliable witnesses, is markedly
more violent and markedly more involved in massive drug shipments, the Government is,
understandably, more circumspect in its analysis of whether to accept offers to cooperate. After
considering the variety of accounts involving Barreras violence, the various prosecutors decided
that the cooperation proposed by Barrera was simply not worth the high price of recommending to
this Court that he receive a sentencing reduction.

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In order to support his violent method of protecting his drug trafficking activities, multiple
witnesses would have testified that Barrera traded cocaine for approximately 800 to 1,000 AK-47
assault rifles in approximately 2005, shortly after Barrera had fellow narcotrafficker Miguel
Arroyave assassinated. Barrera explained that he needed these rifles in order to arm his security
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forces and take control of the rural area of Colombia where his drug labs were located. By creating
his own heavily-armed security group, Barrera could better defend his drug routes from various
external threats from other traffickers and from Arroyaves paramilitary group, the AUC.
In addition to the manner and volume of violence, the sheer amount of cocaine for which
Barrera is responsible during the timeframe of the conspiracy sets Barrera apart from other drug
traffickers. A number of witnesses came forward with accounts of Barreras cocaine production
capacity during the conspiracy, some of which had been provided to the witnesses from Barrera
himself. Even using the lowest figure provided by the witnesses -- 5,000 kilograms of cocaine a
month -- Barrera is responsible for 720,000 kilograms of cocaine during the timeframe of the
conspiracy. By way of comparison, Barreras codefendants, Orlando and Javier Fernandez
Barrero, were, based on the Governments independent information, each held responsible for
4,000 kilograms of cocaine. 4

Diego Perez Henao, one of the individuals to whom Barrera

compares himself on page 19 of his Sentencing Memorandum, and another substantial drug
trafficker involved in significant amounts of violence, was held responsible for 81,000 kilograms
of cocaine.
There is no question, in short, that the nature and circumstances of Barreras offenses are
extremely serious and do not support a downward variance.
B. History and Characteristics of the Defendant
Barrera alleges in his sentencing memorandum that he has spent a large amount of time
and effort since his 2012 capture attempting to cooperate and denounce his criminal activities. It

During the course of preparing to testify, Orlando Fernandez Barrero acknowledged to

the Government that he was responsible for the shipment of approximately 100,000 kilograms of
cocaine during the course of his drug trafficking career.
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is also abundantly clearand Barrera does not and cannot disputethat Barrera dedicated the vast
majority of his adult life selling extraordinary amounts of cocaine and protecting his empire with
dozens of armed workers. Notwithstanding his continuous and long-term criminal acts, Barrera
has no criminal convictions and thus his Criminal History Category is I. Under the Guidelines, a
massive drug kingpin such as Barrera, responsible for at least 720,000 kilograms of cocaine, starts
off with the same base offense level as a low-level, domestic-based cocaine dealer with a few prior
convictions who is held responsible for 15 kilograms of cocaine.
One of the reasons for this disparity is that many extradited drug kingpins have no prior
convictions in their native countries and are therefore eligible for the lowest criminal history
category. The other reason for the disparity is that the maximum base offense level for cocaine is
reached whenever a defendant is held responsible for 150 kilograms or more. Whether a defendant
is responsible for 150 kilograms or, like Barrera, 720,000 kilograms, the base offense level is the
same: level 38. The Commentary to U.S.S.G. Section 2D1.1 suggests that an upward departure
on the basis of drug quantity may be warranted where the quantity is at least ten times the
minimum quantity required for level 38. Commentary, U.S.S.G. Section 2D1.1, Note 14 (2011).
Here, Barrera was responsible for at least 4,800 times the minimum cocaine quantity for level 38.
The Government is not seeking such an upward departure here; however, the massive amount of
cocaine attributed to defendant certainly does not support a variance from the advisory guidelines
based on 3553(a)(1).
C. Similarly-Situated Defendants
In his sentencing memorandum, Barrera argues that a high sentence would create a
disparity between four other defendants whom he believes are similarly-situated: Luis Caicedo,

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Diego Perez Henao, Rodrigo Tovar Pupo and Eric Cardona Vargas. (Def. Sub. at 17-20). The
Government will address each of these cases in turn, and will also provide the Court with other
cases to consider.
i.

Luis Caicedo

The Government recognizes that Luis Caicedo was a significant drug trafficker, and
acknowledges that while some of its witnesses would state that Caicedo was a partner of Barreras,
others would state that, at least early on in the relationship between Barrera and Caicedo, Caicedo
was Barreras boss. However, Caicedo is not similiarly situated to Barrera because, as is evident
from the publicly-filed documents in Caicedos case, Caicedos sentence was drastically affected
by his cooperation with the Government. At the time of sentencing, Caicedo was held accountable
for approximately 500,000 to 600,000 kilograms of cocaine, and received a four-level
enhancement for leadership and/or organizing a substantial trafficking organization. Like Barrera,
he received a two-level enhancement for possessing a firearm in connection with the drug offense,
and also received a two-level enhancement for use of a non-commercial aircraft in a smuggling
venture. All told, his offense level was 43, and with a Criminal History Category of I, his advisory
guideline range before taking cooperation into account was life imprisonment. (Clerks Minutes,
Case No. 08-cr-00152-JDW-MAP (M.D.Fla) (DE 61)). At sentencing, the Government sought an
eight-level downward departure under Rule 5K1.1, reflecting Caicedos substantial cooperation
with the Government, 5K1.1 Motion, Case No. 08-cr-00152-JDW-MAP (DE 58) and the Court
instead granted a ten-level departure, and then varied down from 135 months to 120 months
imprisonment. (Clerks Minutes, Case No. 08-cr-00152-JDW-MAP (M.D.Fla) (DE 61)).
Caicedo was undoubtedly a very significant trafficker, and would have undoubtedly faced

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a very substantial, multi-decade prison sentence had he not cooperated as extensively as he did.
But Caicedos cooperation distinguishes his case from Barreras. See United States v. Ocampo,
266 Fed. Appx. 63, 65 (2d Cir. 2008) (defendant not similarly situated to codefendants for
purposes of 18 U.S.C. 3553(a)(6) where, among other things, codefendants cooperated with
Government and defendant did not). In addition, Caicedo was not held responsible at sentencing
for murders or any violence whatsoever.
ii.

Rodrigo Tovar Pupo

Barrera next cites the 16 year prison sentence of an AUC leader named Rodrigo Tovar
Pupo. Tovar Pupos involvement in cocaine distribution was primarily limited to his participation
in four years worth of taxation of shipments of cocaine sent by other traffickers through territory
that his arm of the AUC controlled, as well as the taxation of cocaine manufactured in laboratories
in his territory. His total offense level, as calculated by the Court, was 44. Although the
Government did mention that the AUC did provide armed security to drug traffickers, and there
was evidence of Tovar Pupos acts of violence, there was no evidence of Tovar Pupos
participation in murders in furtherance of drug trafficking activity.
The facts undergirding Tovar Pupos conviction and sentence do not resemble those
presented in the instant case. Unlike Tovar Pupo, who indirectly profited from the drug trade,
Barrera manufactured and shipped cocaine, and thus was much more culpable for the ultimate
distribution of massive amounts of cocaine in the United States. Also, whereas in Tovar Pupos
case, violence in furtherance of drug trafficking activity may have been implied by the fact that
Tovar Pupo forced drug traffickers to pay taxes more or less at gunpoint, in Barreras case, the
violence is explicit and repeated. Tovar Pupo is not similarly situated to Barrera.

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iii.

Diego Perez Henao

Barrera claims that the Court should consider the 30-year prison sentence imposed in the
Southern District of Florida to narcotrafficker Diego Perez Henao, a/k/a Diego Rastrojo. Perez
Henao, like Barrera, was a substantial drug dealer who was held responsible for murders
committed in the course of his drug dealing. Perez Henaos offense level was calculated to be
Level 43, and the amount of cocaine attributed to Perez Henao was 81,000 kilograms, a massive
amount, but only approximately eleven percent of the amount attributable to Barrera. Perez
Henaos advisory Guideline range, like Barreras, was also life imprisonment.

While it is true that Barrera attempted negotiate a surrender with the Government
, the fact remains that Barrera did not ultimately surrender to the Government
because he was demanding conditions to which the Government did not acquiesceand other
governments (Colombia and Venezuela) had to expend significant resources and incur significant
risks, including the physical safety of law enforcement officers, to apprehend Barrera. Barrera
never proposed to surrender without conditions; Mr. Oliva made it clear that there were some
strings attached to Barreras surrender. While it is true that the prosecutors with whom Mr.

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Oliva negotiated never formally rejected the proposals or made a formal counteroffer during the
year-long negotiations, Barrera could have chosen to surrender without conditions at any time
during that year-long period but did not.
While the Government believed that the appropriate sentence for Perez Henao was a 30year prison term, the Government believes that Barrera is more culpable than Perez Henao and
therefore deserves a higher sentence. While Perez Henao certainly invested in cocaine loads and
was involved in transportation, his primary role in the drug trafficking organization was to engage
in violence and to protect affiliated drug trafficking organizations ability to move cocaine.
Barrera also participated in numerous acts of violence and also was responsible for a significantly
larger amount of cocaine over nine times more than Perez Henao.
iv.

Eric Cardona Vargas

The last individual mentioned in Barreras sentencing submission to the Court is Eric
Cardona Vargas, who was sentenced in the Southern District of New York to a 25-year prison
term. As Barrera correctly states, Cardona Vargas was a very significant drug trafficker affiliated
with the Oficina de Envigado who was captured in 2012 along with numerous weapons. He, like
Barrera, was also involved in numerous murders in connection with his drug trafficking activities.
Cardona Vargas was responsible for a tiny fraction of the amount of cocaine attributable to Barrera.
Vargas Cardona faced a total offense level of 41 on the drug charge to which he pled, plus a
mandatory minimum successive 10-year sentence on a count of possessing a firearm in connection
with the drug offense.
While both defendants were violent and committed a number of homicides, Barreras
cocaine production dwarfed that of Cardona Vargass. The sheer amount of cocaine which Barrera

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manufactured and sold alone demonstrates why Barrera is not similarly situated to Cardona
Vargas, and should receive a substantially higher sentence than Cardona Vargas did. One other
point bears mentioning. Barrera on page 20 of his submission asserts that Mr. Cardona refused
to cooperate. This is not accurate. As Judge Preska noted at the February 23, 2016, Sentencing
Hearing, Cardona Vargass counsel did persuade the government to listen to potential cooperation
that Cardona Vargas could provide, but the Government ultimately rejected Cardona Vargas
entreaties to cooperate. (Tr. 3/22/16 Sentencing Hearing, United States v. Cardona Vargas, Case
No. 11-cr-00349-LAP (SDNY) (DE 39) at 17). The Government decided that the information
proffered by the defendants did not rise to the level of substantial assistance to justifying offering
a cooperation agreement. (Id. at 20.)
v.

Diego Montoya Sanchez, Case Nos. 99-804-cr-CMA and 09-20665-crCMA (SDFL)

The Government suggests that the Court consider the 45-year sentence of North Valley
Cartel head Diego Montoya Sanchez when fashioning the appropriate sentence for Barrera. The
Government would concede that Montoya Sanchezs organization manufactured and distributed
more cocaine than Barreras organization. Montoya Sanchez was also admittedly more violent
than Barrera, and, unlike Barrera, successfully ordered the murder of a man suspected of being a
Government informant. Although Barrera could easily have been sentenced under the murder
guideline set forth in U.S.S.G. 2A1.1, as previously stated, Montoya Sanchez was in fact
sentenced under that guideline and, as a consequence, his total offense level was 2 points higher
than Barreras.
The Government does not believe that Barrera should receive the 45-year sentence that
Montoya Sanchez received, but given Barreras and Montoya Sanchezs relative culpability,
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believes that a 35-year sentence for Barrera would certainly be proportional to Montoya Sanchezs
sentence and would otherwise be appropriate.
vi.

Javier Fernandez Barrero and Orlando Fernandez Barrero, Case No. 10cr-20587-DLG (SDFL)

Barreras co-defendants in the Southern District of Florida case were two brothers who
worked underneath Barrera in Barreras drug trafficking organization. Each brother was held
responsible at sentencing for the shipment of 4,000 kilograms of cocaine based on the independent
information at the Governments disposal; that is, information that did not come from the brothers
themselves during their efforts to cooperate with the Government, see USSG 1B1.8(a). Each
brother also received a three-level enhancement for leadership as Barrera, their boss, was the
undisputed leader of the organization.

Prior to debriefing Orlando Fernandez Barrero in

preparation for a trial of a third party, the Government had no evidence of either brothers acts of
violence. Orlando Fernandez Barrero acknowledged to the Government that he was responsible
for the deaths of several individuals.
Orlando and Javier Fernandez Barrero each agreed to surrender unconditionally and agreed
to cooperate with the Government. Each received a 5K1.1 motion from the Government, as well
as a recommendation at sentencing that they receive an additional variance of 57-months to
account for the fact that other co-conspirators had not received a two-level enhancement for use
of a noncommercial aircraft in the commission of the drug offense. Their advisory Guidelines,
factoring in the 57-month variance, suggested a term of imprisonment of 235 to 293 months
imprisonment. They each received 5K1.1 reductions from the 235 to 293 months; Javier was
sentenced to 156-months imprisonment and Orlando was sentenced to 141-months
imprisonment.
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Each brother faced slightly less than 20-years imprisonment before factoring in their
cooperation. Barrera, who was responsible for a vastly greater quantity of cocaine and the murders
of numerous individuals, should receive a considerably higher sentence than 20 years
imprisonment.
V.

A VARIANCE IS NOT APPROPRIATE FOR PRISON CONDITIONS OR

IMMIGRATION STATUS
In his sentencing submission, Barrera additionally argues that a downward variance is

appropriate in this case because he will serve his sentence in a Bureau of Prisons facility far from
his family, all of whom reside in Colombia. (Def Sub. at 30). Certainly, this is indeed a
consequence of violating U.S. law from outside of the United States. It should come as no surprise
to Barrera that, one consequence of importing tons of cocaine into the United States over a period
of many years is incarceration in a U.S. prison.
Moreover, even in situations of extreme pre-sentence confinement, Courts have declined
defendants request for a downward variance in sentences. For instance, in United States v. Carty,
264 F.3d 191 (2d Cir. 2001) (per curiam), the defendant allegedly was incarcerated in the
Dominican Republic in a dark, four-by-eight-foot cell with three or four other inmates for almost
nine months. 264 F.3d at 193. He was allowed only 10 to 15 minutes outside of his cell per day,
allowed only one phone call per week, and had no running water and only a hole for a toilet. Id.
He was allowed no newspapers or radio, and lost 40 pounds while incarcerated. Id. Nevertheless,
the District Court declined to depart downward on the basis of those pretrial detention conditions,
in light of, among other things, the severity of his crimes and obstruction of justice. United States
v. Teyer, 322 F. Supp. 2d 359, 377 (S.D.N.Y. 2004) (citing Carty, 264 F.3d at 193).
Here, of course, Barrera makes no such allegations. He simply claims that it would be a
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hardship for him to be in a Bureau of Prisons facility in the U.S. because it would afford him scant
opportunity to visit with his family. This argument fails as a reason for a downward variance in
this case.
Barrera also contends that because he will not be released early to a community corrections
facility due to his immigration status, but rather may serve additional time in Department of
Homeland Security custody, this Court should vary his sentence downward. (Def. Sub at 29).
However, how much time Barrera serves in immigration custody will depend largely on Barrera
himself. Certainly, if Barrera contests his removal back to Colombia, he may spend considerable
time in immigration custody. If, however, he consents to removal, the process should be swift.
In any event, the immigration process is separate from the Courts considerations under Section
3553(a) and is not grounds for a variance here.
VI.

CONCLUSION
Barreras advisory guideline range is life imprisonment. The nature and circumstances of

the offense and the history and characteristics of the defendant both militate against a variance of
the kind that Barrera argues is appropriate. While arguably applicable to Barrera, the Government
is not seeking an upward departure because Barrera is accountable for 4,800 times the minimum
quantity required for level 38. See U.S.S.G. 2D1.1, Application Note 16 (2009). However,
Barreras eligibility for the upward departure undermines his argument for a downward variance
in this case.
A sentence of 420 months incarceration a downward variance from the advisory
guideline of life imprisonment is the appropriate sentence in this case. A 420-month term of
incarceration is the most reasonable sentence that reflects the seriousness of the offense, promotes

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respect for law, provides just punishment for the offense, protects the public from further crimes
of the defendant and affords adequate deterrence to criminal conduct.
Filed: July 21, 2016
Respectfully submitted,
PREET BHARARA
UNITED STATES ATTORNEY
By:

/s/ Andrea Surratt

ANDREA SURRATT
Assistant United States Attorney
1 St. Andrew's Plaza
New York, NY 10007
(212) 637-2493
Andrea.Surratt@usdoj.gov

/s/ Adam S. Fels

ADAM S. FELS
Special Assistant United States Attorney
99 Northeast 4th Street
Miami, Florida 33132-2111
(305) 961-9325
(305) 536-7213 (fax)
Adam.Fels@usdoj.gov

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CERTIFICATE OF SERVICE
I hereby certify that on July 21, 2016, the undersigned electronically filed the foregoing
document under Seal and caused a copy to be mailed to counsel of record:
Ruben Oliva, Esq.
ROJAS & OLIVA, P.A.
Fountain Square
15800 Pines Boulevard
Suite 206
Pembroke Pines, FL 33027

Orlando do Campo, Esq.

do Campo & Thornton, P.A.
150 S.E. 2nd Avenue
Suite 602
Miami, FL 33131

/s/ Andrea Surratt

Assistant United States Attorney

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