Opinion
No. 02-40013-01-SAC
March 19, 2003
RULING ON OBJECTIONS TO PRESENTENCE REPORT
The defendant pleaded guilty to the single count indictment that charged her with possession with intent to distribute five grams or more of crack cocaine. Terms of the plea agreement included: "The parties agree that the available evidence would establish that the total amount cocaine base attributable to the defendant for purposes of offense conduct and relevant conduct is 42.11 grams, corresponding to base offense level 30." The government also agreed to recommend the maximum adjustment for acceptance of responsibility and to not oppose a sentence at the low end of the appropriately calculated guideline range.
The Presentence Report ("PSR") recommends holding the defendant accountable for the agreed amount of 42.11 grams of cocaine. This results in a base offense level of 30 from which the PSR deducts two levels for the safety valve adjustment and three additional levels for acceptance of responsibility. Using a total offense level of 25 and a criminal history category of one, the PSR recommends a guideline range of 57 to 71 months. The addendum to the PSR addresses the defendant's unresolved objections.
OBJECTION NOS. 1 and 5: The defendant objects to ¶¶ 18 and 69 arguing the base offense level should be determined on the basis of powder cocaine and not cocaine base.
Ruling: As set forth in their plea agreement, the parties agreed that the available evidence would establish the total amount of cocaine base to be used in calculating offense level was 42.11 grams. The Tenth Circuit has long recognized that a defendant should be held strictly to the terms of a lawful plea agreement. United States v. Atterberry, 144 F.3d 1299, 1300 (10th Cir. 1998). As is this court's practice in a change of plea proceeding, the terms of the plea agreement were summarized and the government proffered its evidence to prove count one which charged the defendant with possession of cocaine base with intent to distribute. The court accepted the defendant's guilty plea to this count as freely and voluntarily made, and the defendant submits no challenge to the voluntariness of her plea. Having agreed in open court to this relevant conduct and admitted her guilt of the same, the defendant cannot now argue to the contrary that the drugs seized from her person were powder cocaine and not cocaine base. "Generally, the accuracy and truth of an accused's statement at a Rule 11 proceeding at which [her] guilty plea is accepted are conclusively established in the absence of a believable reason justifying departure from their apparent truth." United States v. Bambulas, 571 F.2d 525, 526 (10th Cir. 1978). The court overrules these objections.
DEFENDANT'S OBJECTION NO. 2: The defendant objects that she was imprisoned only ten days and received less than twelve months probation on the prior conviction summarized at ¶ 32 of the PSR.
Ruling: The court finds that a ruling on this objection is unnecessary, because the matter will not affect the sentencing. This additional information would not impact the PSR's recommendation that the defendant receive only one criminal history point for this prior sentence pursuant to U.S.S.G. § 4A1.1(c).
DEFENDANT'S OBJECTIONS NO. 3 AND 4: The defendant takes issue with ¶¶ 36 and 37 that describe other criminal conduct. The defendant does not challenge the PSR's accuracy in summarizing the state court records regarding these matters.
Ruling: The court finds that a ruling on these objections is unnecessary, because the matters would not affect the sentencing. None of this other criminal conduct had any impact in calculating the defendant's sentence.
DEFENDANT'S OBJECTION NO. 6: The defendant asks for a safety valve adjustment with a reduction of three to five levels in his offense level. The defendant also cites Rule 35 as another basis for his reduction.
Ruling: The PSR recommends a two-level safety valve adjustment pursuant to U.S.S.G. § 5C1.2. The sentencing guidelines at U.S.S.G. § 2D1.1(b)(6) limit this adjustment to a two-level decrease. No further decrease under this adjustment is permissible under the guidelines. As for any reduction pursuant to Rule 35, the court has yet to commit a sentencing error that needs correction and the government has not filed any motion to reduce the defendant's sentence for substantial assistance. This objection is overruled.
IT IS THEREFORE ORDERED that this filing shall constitute the court's ruling and determination under Fed.R.Crim.P. 32(i)(3) unless the defendant exercises her right to submit additional arguments and evidence on these objections.