Opinion
No. 03-40100-04-SAC.
April 28, 2005
SENTENCING FINDINGS AND STATEMENT OF REASONS FOR SENTENCE
On January 19, 2005, the defendant entered a conditional plea of guilty to count one of the indictment that charged him with possession of approximately 332 pounds of pseudoephedrine in violation of 21 U.S.C. § 841(c)(2). Relevant to sentencing, the plea agreement provided in part that the government would not oppose the two-level reduction for acceptance of responsibility and, at the sentencing hearing, would move the court for the additional one-level reduction for the defendant timely notifying the government of his intention to plead guilty. The government further agreed not to oppose a sentence at the low end of the guideline range. The presentence report ("PSR") prepared in this case recommends a total offense level of 40 (base offense level of 38 plus a twolevel enhancement for obstruction of justice), a criminal history category of one, and a guideline sentence of 240 months. The addendum to the PSR identifies two unresolved objections made by the defendant.
The statutory maximum sentence for the defendant's conviction is twenty years imprisonment. By the terms of U.S.S.G. § 5G1.1(c)(1), this statutory maximum is the guideline range rather than the 292 to 365 months established for an offense level of 40 and a criminal history category one.
OBJECTION NO. 1: The defendant objects that the PSR does not recommend a three-level maximum adjustment for acceptance of responsibility in furtherance of the parties' plea agreement. The PSR proposes an obstruction of justice enhancement and the denial of an acceptance of responsibility adjustment as the defendant was arrested while on pretrial supervision attempting to enter Mexico with a counterfeit Social Security card and counterfeit immigration card. The government has told the PSR writer that it does not oppose the defendant receiving the full adjustment for acceptance of responsibility in light of the expected length of the defendant's sentence.
Ruling: The defendant "bears the burden of establishing entitlement to a reduction under § 3E1.1." United States v. Bindley, 157 F.3d 1235, 1241 (10th Cir. 1998), cert. denied, 525 U.S. 1167 (1999). The defendant must clearly demonstrate "recognition and affirmative acceptance of personal responsibility for his criminal conduct." Id. (quotation marks and citation omitted). While the entry of a guilty plea does not entitle a defendant to this adjustment "as a matter of right," a guilty plea and a truthful admission of conduct comprising the offense of conviction is "significant evidence of acceptance of responsibility." U.S.S.G. § 3E1.1, comment. (n. 3). Such evidence, however, "may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility." U.S.S.G. § 3E1.1, comment. (n. 3).
Conduct which results in an enhancement for obstruction of justice "ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct." Id. § 3E1.1, cmt. n. 4. Only under "extraordinary" circumstances may the district court apply both an obstruction of justice enhancement and an acceptance of responsibility adjustment. Id. The defendant offers no arguments or authority to justify a finding of extraordinary circumstances or conduct.
The Tenth Circuit recently addressed at length the appropriate extraordinary circumstances inquiry to make when a defendant pleads after having engaged in obstructive conduct. United States v. Salazar-Samaniega, 361 F.3d 1271, 1278-82 (10th Cir.), cert. denied, 125 S. Ct. 180 (2004). The court agreed with the analysis found in the Eighth Circuit's decision of United States v. Honken, 184 F.3d 961, 972 (8th Cir.), cert. denied, 528 U.S. 1056 (1999), that a sentencing court should consider the:
totality of the circumstances, including the nature of the [defendant's] obstructive conduct and the degree of [his] acceptance of responsibility. Among other things, the district court should [consider] whether, for example, the obstruction of justice was an isolated incident early in the investigation or an on-going effort to obstruct the prosecution. It should [consider] whether [defendant] voluntarily terminated his obstructive conduct, or whether the conduct was stopped involuntarily by law enforcement.United States v. Salazar-Samaniega, 361 F.3d at 1279 (quoting Honken, 184 F.3d at 968-69). "`[A] defendant must show more than a guilty plea and a cessation of obstructive conduct to establish an "extraordinary case" for purposes of § 3E1.1, application note 4.'" United States v. Nguyen, 339 F.3d 688, 691 (8th Cir. 2003) (quoting Honken, 184 F.3d at 970).
The defendant has failed to prove anything extraordinary about his case. Almost nine months after his arrest on the charges in this indictment, three months after the court denied his motion to suppress, and just weeks after his trial date was continued, the defendant was arrested by Mexican and United States officials trying to enter Mexico with a false Social Security card and a false immigration card. The defendant had failed to report to pretrial services a week before his arrest on the border. As a result of his conduct, the defendant was charged in the District of Arizona with possession of counterfeit immigration documents and was held in custody there until released to the District of Kansas for the continued prosecution of this case. Upon his arrival in Kansas, the defendant immediately pleaded guilty just eight days before his trial was scheduled to commence. Considering the measures taken to flee to Mexico and the different conditions of pretrial supervision violated, the defendant's obstructive conduct was not an isolated and certainly did not occur early in the prosecution. The defendant's obstructive conduct ended only upon his arrest and resulted in another federal prosecution. "`The fact that a defendant having done everything he could to obstruct justice runs out of tricks, throws in the towel, and pleads guilty does not make him a prime candidate for rehabilitation.'" United States v. Salazar-Samaniega, 361 F.3d at 1281 (quoting United States v. Buckley, 192 F.3d 708, 711 (7th Cir. 1999), cert. denied, 529 U.S. 1137 (2000)). The circumstances of this case are not so extraordinary to justify granting an acceptance of responsibility adjustment. See United States v. Hawley, 93 F.3d 682, 689 (10th Cir. 1996) (affirmed the denial of a downward adjustment for acceptance of responsibility where the defendant violated his appearance bond).
It is apparent that the parties entered into the plea agreement with the expectation that the defendant would receive a full adjustment for acceptance of responsibility despite the defendant's earlier attempt to flee to Mexico while on pretrial supervision. The court now must choose between fulfilling the parties' bargain as struck in the plea agreement or applying the guidelines in the uniform manner as written and interpreted. Other than their agreement itself and the length of the expected sentence, the parties offer the court with no reason, factual or legal, for sustaining the defendant's objection to the PSR. The policy of uniformity promoted as the raison d'etre for the sentencing guidelines is frustrated when a court is asked to ignore facts fully supporting a certain result under the guidelines simply because the parties have agreed to a different result or because the government is content with the expected length of the sentence. The defendant's objection is overruled.
OBJECTION NO. 2: The defendant next generally objects to any mandatory application of the sentencing guidelines in light of United States v. Booker, 125 S. Ct. 738, 2005 WL 50108 (Jan. 12, 2005).
Ruling: In United States v. Booker, 125 S. Ct. 738, 2005 WL 50108 (Jan. 12, 2005), the Court found the mandatory enforcement of the United States Sentencing Guidelines to be unconstitutional but preserved the guideline sentencing scheme by severing those provisions of the Sentencing Reform Act that made the guidelines mandatory. Consequently, the guidelines are now "effectively advisory," 125 S. Ct. at 757, and the standard of appellate review is no longer de novo but reasonableness. As modified, the Act now "requires a sentencing court to consider Guidelines ranges, see 18 U.S.C.A. § 3553(a)(4) (Supp. 2004), but it permits the court to tailor the sentence in light of other statutory concerns as well, see 3553(a) (Supp. 2004)." Id. Put another way, sentencing courts, "while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing. See 18 U.S.C.A. §§ 3553(a)(4), (5) (Supp. 2004)." Id. at 767.
Following Booker's remedial scheme, this court will follow the same procedures already employed under the guidelines of first resolving all disputes about the application of the guidelines in compliance with Fed.R.Crim.P. 32(i) and determining the advisory guideline range. By the terms of 18 U.S.C. § 3553(a), the court must arrive at and "impose a sentence sufficient, but not greater than necessary, to comply with the purposes of sentencing set forth" here:
(2) the need for the sentence imposed —
(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). In doing so, the court is called upon by statute to consider these other relevant factors:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
. . . .
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for —
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . .;
(5) any pertinent policy statement . . . [issued by the Sentencing Commission];
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.18 U.S.C. § 3553(a). Thus, § 3553(a) instructs a sentencing court to consider the established guideline sentencing range, listed as (4), as simply one of the statutory factors relevant in arriving at sentencing. For these reasons, the court denies the defendant's objection as moot.
STATEMENT OF REASONS
The defendant has filed a memorandum that addresses several other sentencing considerations relevant under 18 U.S.C. § 3553(a). As for nature and circumstances of offense, the defendant agrees the PSR accurately describes the offense and emphasizes the absence of firearms, violence or coercion. The defendant next calls attention to the absence of any prior convictions in his criminal history. The defendant concedes his offense is serious based on the statutorily prescribed penalties but contends a twenty-year sentence for a nonviolent first drug conviction is "draconian." A sentence "considerably shorter" than "the 210 months contemplated under the plea agreement" would serve the recognized purposes of sentencing a first-time offender having no history of violence or firearms, including deterrence and protection of the public. Because the recommended guideline sentence is determined almost exclusively by the amount of pseudoephedrine found in this single drug trafficking offense, the defendant opposes making the guidelines a determinative factor. The defendant contrasts the sentences given his co-defendants: Maria Conception Ledesma was sentenced to a 24-month term of imprisonment, Anwar Yehia Yaffai was sentenced to a 30-month term of imprisonment, and April Lynn Pelfrey was sentenced to three years probation. While acknowledging that his role was more significant than his co-defendants and that he pleaded guilty to the more serious offense, the defendant offers that the guideline sentence is an unwarranted disparity while a sentence twice as long as the longest sentence imposed on a co-defendant would be a justifiable disparity commensurate with his role in the offense.
The defendant's sentencing memorandum advances some additional factors. He asserts that the pretrial detention facility staff has labeled him a "Taliban" based solely on his Arabic origin as he is not a member or sympathizer of the Taliban and has placed the defendant in segregation for his own protection. The defendant fears this label will follow him upon placement in the Bureau of Prisons and make him vulnerable to abuse. Though a legal alien, the defendant understands his felony conviction makes him eligible for deportation and offers to consent to deportation. The defendant points out that a shorter term of imprisonment combined with automatic deportation arguably would assist the efficient administration of justice.
Disputing that the guideline-recommended sentence is "draconian," the government reminds us of the accepted tenet to the guidelines that the amount of controlled substance in an offense is a reasonable reflection of the harm done to society. The offense levels established for the different drug amounts represent the considered judgment of numerous criminal justice professionals and years of study. Because the statutory maximum has become the guideline range in this case, the defendant will receive a sentence at least fifty-two months below the guideline range otherwise applicable for an offense involving such an amount of pseudoephedrine. As for a shorter sentence being a sufficient deterrent, the government finds no substance to the defendant's position and observes that the need for deterrence is significant here considering the defendant's attempt to flee the country to avoid prosecution. While this may be the defendant's first drug trafficking conviction, the government disputes any characterization of the defendant as a first time offender. The government believes the disparate sentences imposed on the co-defendants are warranted by the differences in cooperation, conduct on pretrial release, role in offenses, and convictions for sentencing. The government questions whether the "Taliban" label will follow the defendant to the Bureau of Prisons and whether the defendant's ethnicity will create a serious risk of abuse in the larger and more ethnically diverse institutions managed by the Bureau. The government summarily rejects that deportation or costs of incarceration are considerations worthy of tailoring the guideline sentence here.
The nature and circumstances of the offense support a lengthy sentence. Considering nothing but the amount of pseudoephedrine transported in this single offense, the defendant's offense level would be thirty-eight resulting in a sentencing range of 235 to 293 months. The court shares the government's opinion that the defendant should be considered at least an organizer of this criminal activity that involved at least four other participants. As stated in the PSR, co-defendants have said that "they were hired to transport the pseudoephedrine from Detroit, Michigan, to California on behalf" of the defendant, that the defendant had agreed to pay them "$10,000 for transporting the pseudoephedrine and $200 per day while traveling," and that the defendant provided the vehicles for the trip, including the van that contained the pseudoephedrine. These facts establish that the defendant hired and compensated the others and thereby exercised organizational authority and responsibility over them and the pseudoephedrine. There is no evidence of violence or firearms being involved in the offense.
As the background commentary to § 2D1.1 explains, these base levels are directly related to the Anti-Drug Abuse Act of 1986 and have been fine-tuned by the Commission after consulting numerous experts, professionals, and practitioners in the field of criminal justice. Sentencing courts certainly must continue to treat the base offense levels in § 2D1.1 as reliable, proportional measures of the harm and seriousness related to drug crimes.
The addition of an aggravating role enhancement would not have changed the PSR's recommended guideline sentence because of the statutory maximum. Because it is relevant to know what the guideline sentencing range would be absent the statutory maximum, the court has calculated a range of 360 months to life after adding a two-level enhancement for an organizer under U.S.S.G. § 3B1.1(c).
The history and characteristics of the defendant do not strongly favor a shorter sentence. The defendant repeatedly describes himself as a first offender while the government says this may be the defendant's first conviction but it is not his first offense. According to the government's sentencing memorandum, informants have revealed that the defendant regularly participated in moving pseudoephedrine from Canada to California where it was used to manufacture methamphetamine. The large amount of pseudoephedrine transported in this single load, the number of persons hired and compensated to transport it, the use of more than one vehicle to transport it, and the defendant's significant role in organizing its transportation are facts when considered together reasonably sustain the inference that the defendant was closely connected to or directly involved in an ongoing distribution of pseudoephedrine for the purpose of manufacturing methamphetamine. The lack of prior criminal convictions must be considered in the context that the defendant did not immigrate to the United States from Yemen until 1999. In other words, the defendant lived here no more than four years before being arrested for this large-scale drug offense. While on pretrial release, the defendant then acquired false documentation and tried to flee the country. These circumstances do not portray the defendant's offense to be an isolated mistake in judgment committed by someone otherwise lacking a propensity towards criminal activity.
In evaluating the different purposes of sentencing, the defendant opines that a sentence considerably shorter than twenty years or 210 months would accomplish the purposes of justice, deterrence, protection and educational or vocational training. The needs of the public, however, are served by a substantial sentence for this serious drug offense. The sentence should send a message to all citizens, in particular recent immigrants to America, that promotes respect for this country's drug trafficking laws and that deters them from becoming involved in these cells of criminal activity. The public deserves extended protection from persons like the defendant who supply large illegal drug manufacturers. The defendant's unlawful attempt to cross the borders displays his contempt for this country's immigration laws and his potential to be an ongoing threat to this country even following his release from prison and eventual deportation. The need for vocational or educational training does not measurably affect the length or type of sentence to impose here.
The court is mindful of the different kinds of sentences available here, and in particular, the advisory guideline sentence which the Tenth Circuit regards as "a vital barometer of reasonableness on appellate review." United States v. Hopkins, 2005 WL 827136, at *5 (10th Cir. 2005). As mentioned above, the guidelines absent the ceiling established by the statutory maximum would counsel a sentence of 360 months to life with an organizer role enhancement, 292 months to 365 months without the role enhancement, and 210 months to 262 months without the role enhancement and with an acceptance of responsibility adjustment.
The disparate sentences imposed on the defendant and his co-defendants are warranted. As the defendant admits, his co-defendants pleaded guilty to less serious charges and played less significant roles in the criminal activity. The defendant opines that if his sentence exceeds twice the length of the longest sentence imposed on his co-defendants (thirty months) then the disparity would be unwarranted. A greater disparity, however, is warranted here for several reasons. The defendant's role was not just more significant; he was an organizer in the ongoing large-scale supply of pseudoephedrine to California methamphetamine manufacturers. The defendant did not cooperate with the government and provide information as did his co-defendants, but he did enter a guilty plea pursuant to a plea agreement. Unlike his co-defendants, the defendant absconded from pretrial supervision and tried to flee the country.
The court accords little weight to the defendant's speculation over the potential for prison abuse because of his Arabic origin and to the defendant's suggestion for mitigating the costs of incarceration.
After weighing all of the factors discussed above, identified in 18 U.S.C. § 3553(a), and argued in the parties' sentencing memoranda, including the parties' plea agreement concerning sentencing matters, the court concludes that a sentence of 210 months imprisonment is sufficient but not greater than necessary to meet the different purposes of sentencing. Though a non-guideline sentence, the court believes this is consistent with the parties' plea agreement, serves the different considerations under 18 U.S.C. § 3553(a), and is reasonable under Booker.
IT IS THEREFORE ORDERED that the defendant's unresolved objections to the PSR are denied;
IT IS FURTHER ORDERED that this filing shall constitute the court's determination pursuant to Fed.R.Crim.P. 32(i)(3)(C) and its statement of reasons pursuant to 18 U.S.C. § 3553(c).