MEMORANDUM OPINION
The defendant, George Gallego, pleaded guilty to a superseding indictment charging him with conspiracy to commit murder in connection with thе January 1993 robbery of a Postal Service truck and the execution-style killing of the driver. The guideline range in his case was 360 months to life. The Court sentenced him to a term of 480 months. The defendant now moves, pursuant to Fed.R.Cmm.P. 35(c), to correct the sentence on the ground that the Court im-рermissibly considered the defendant’s failure to tell the government what he knew in fixing the sentence. He contends that the sentence was inappropriate because the Court, in reaching its conclusion concerning his lack of cooperation, must have relied upon what transpired in proffer sessions in which the defendant participated despite the government’s agreement that his statemеnts on those occasions would not be used against him. He argues also that consideration of his refusal to cooperate against others violated U.S.S.G. § 5K1.2.
1. Rule 35(c) permits correction only of arithmetical, technical or other clear errors in a sentence. As the Advisory Commit
2. The defendant is mistaken in assuming that the Court relied upon anything that took place in proffer sessions with the government. It relied solely upon its knowledge derived from having taken this defendant’s plea and presided at the trial that resulted in the conviction оf his brother and another for the murder. The conclusion that this defendant refused to assist the government in the prosecution of others involvеd in the crime was obvious from those events.
First, this defendant was charged in the first superseding indictment with having conspired with his brother, Alfredo Gallego, Stеven Martinez, and others. When this defendant pleaded guilty to a superseding indictment, he structured his allocution to avoid implicating anyonе else while at the same time admitting his own participation in a conspiracy to commit the murder.
Second, the trial of Alfredo Gallеgo and Steven Martinez, which included the testimony of a fourth co-conspirator named Rosado, made it absolutely clear that Alfredo Gallego, Martinez and Rosado all were parties to the conspiracy. George Gallego was conspicuous by his absence as a government witness at the trial.
In these circumstances, the fact that George Gallego declined to testify against his’ brother and others, which was the point of the Court’s remark (Sentencing Minutes 12-13), is indisputable.
3. Despite George Gallego’s plea of guilty, the government recommended that he be sentenced at the top of the guideline range, which was life imprisonment.
U.S.S.G. § 5K1.2 is contained in Part 5K of the guidelines, which deals exclusively with departures from the applicable guideline range. It provides that “[a] defendant’s refusal to assist authorities in the investigation of other persons may not bе considered as an aggravating sentencing factor.” Gallego claims that the Court’s consideration of his refusal to coopеrate against others in determining how much of a reduction below the top of the guideline range to give violated this provision. The Court disagrees.
To begin with, there is a difference between considering a factor in determining the extent of a benefit that will be extended and сonsidering it as an aggravating factor. Although the distinction seems somewhat semantic, it is well established in the cases. In United States v. Stratton,
“This court ... has drawn a distinction between increasing the severity of a sentence for a dеfendant’s failure to cooperate and refusing to grant leniency. ‘It is one thing to extend leniency to a defendant who is willing to cooperate with the government; it is quite another thing to administer additional punishment to a defendant who by his silence has committed no additionаl offense.’ United States v. Bradford,645 F.2d 115 , 117 (2d Cir.1981) (quoting United States v. Ramos,572 F.2d 360 , 363 n. 2 (2d Cir.1978)). [Internal quotations omitted] This distinction may be difficult to apply. See Roberts [v. United States ], 445 U.S. [552] at 557 n. 4, 100 S.Ct. [1358] at 1362 n. 4 [63 L.Ed.2d 622 (1980) ]; Mallette v. Scully,752 F.2d 26 , 30 (2d Cir.1984) (taking Roberts n. 4 into account). Nevertheless, ‘even though the distinction is sоmewhat illusory, it is the only rule that recognizes the reality of the*346 criminal justice system while protecting the integrity of that system.’ Mallette,752 F.2d at 30 .” Id. at 564.
Precisely this distinction applies here, as the Court did not administer additional punishment for defendant’s silence. It simply considered that silence in determining the extent to which leniency was appropriate in light of his actions.
Even more significant, it is perfectly clear that Section 5K1.2 forbids considеration of a defendant’s refusal to cooperate against others only for the purpose of determining whether to depаrt from the guideline range. It does not forbid consideration of such action in determining where within the guideline range the defendant should be sentеnced. The Seventh Circuit, in a persuasive opinion by Judge Easterbrook, has reached exactly that result. United States v. Klotz,
4. Finally, it is doubtful that the defendant has any right to object to the sentence. The Court made the statement upon which the defendant relies before it imposed sentence, indicated the intended sentence, and thеn asked whether there was “any legal reason why sentence should not thus be imposed.” Defendant’s counsel said there was not. (Sentencing Minutes 13) Moreover, defendant’s plea agreement provides that he will not appeal or otherwise litigate under 28 U.S.C. § 2255 any sentence within or below the stipulated guideline range of 360 months to life and that any appeal of the sentence not foreclosed by the agreement would be limited to that portion of the sentencing calculation that is inconsistent with or not addressed by the stipulation. The sentence’ in this case is within the stipulated guideline range.
The motion is denied in all respects.
SO ORDERED.
Notes
. The Court gave the defendant a three level downward adjustment for acceptance of responsibility notwithstanding his refusal to cooperate against others.