Opinion
Case No. 03-40022-01-RDR
February 25, 2004
ORDER
On February 20, 2004, the court sentenced the defendant. The purpose of this memorandum and order is to memorialize the rulings made by the court during that hearing.
The defendant entered a guilty plea pursuant to a plea agreement on July 2, 2003. The defendant pleaded guilty to possession with intent to distribute in excess of 100 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1). The courtscheduled sentencing for November 11, 2003. Prior to sentencing, the defendant absconded bond supervision, with his last contact with pretrial services on October 1, 2003. The defendant failed to appear for sentencing. He was subsequently arrested on January 26, 2004.
The defendant raised several objections to the presentence report. The defendant contends that (1) the quantity of marijuana attributed to him is not accurate; (2) the information in paragraph 52 concerning a prior arrest is not accurate; and (3) the denial of credit for acceptance of responsibility is incorrect. He also seeks to require the government to file a motion for downward departure. The government presented evidence during the hearing concerning the drug quantity issue.
DRUG QUANTITY
The defendant contends that the amounts of marijuana attributed to him in the presentence report are based on untruthful statements he made to law enforcement officers after his arrest. He has suggested that he and his father made up stories about prior trips involving the transportation of marijuana to satisfy law enforcement officers. The government suggests that the defendant's explanation regarding the prior trips is without any support. The government points out that the defendant and his father were separated after their arrests and told the same story about the prior trips. Accordingly, the government asserts that the defendants did not have the opportunity to collude on their stories and, thus, the statements made after their arrests were truthful. Based upon the evidence offered at sentencing, the court makes the following findings of fact and conclusions of law.
Findings of Fact
1. On November 9, 2002, the defendant and his father, co-defendant William S. Curtis, were arrested after a traffic stop in Geary County, Kansas. The defendant was the driver of a Chrysler minivan and his father was a passenger. Law enforcement officers discovered approximately 655 pounds of marijuana in the rear of the minivan. Following their arrests, the defendants agreed to cooperate with law enforcement. They told law enforcement officers they were transporting the marijuana to Detroit, Michigan for delivery to "Butch."
2. The defendants were transported to Kansas City, Kansas to meet with Drug Enforcement Administration (DEA) officers. In Kansas City, they met with Elizabeth Dubois-Marshall, a special agent with the DEA. She and other agents were going to travel with the defendants to Detroit so that a controlled delivery of the marijuana could be made.
3. The defendants and the DEA officers began the trip to Detroit. They traveled in two vehicles, with one defendant in each vehicle. Agent Dubois-Marshall began the trip in the vehicle with the defendant. She asked him if he had made any other trips for Butch. The defendant said that this trip was the only trip. Agent Marshall indicated that she did not believe that this was his only trip because of the open manner in which the marijuana was being transported. She indicated that the person who was using the defendant as a courier must be very comfortable with him because the marijuana was not hidden. She told the defendant that he needed to tell the truth if he wanted to receive maximum benefit for his cooperation. The defendant eventually indicated that he had made two other trips to transport marijuana from Phoenix, Arizona to Detroit for Butch. He provided various details concerning those other trips to Agent Dubois-Marshall, including information that his father had also traveled with him on those trips. He said that he transported approximately 200 pounds of marijuana on the first trip and approximately 300 pounds on the second trip.
4. During the trip to Detroit, Agent Dubois-Marshall switched vehicles and began riding with the defendant's father. William S. Curtis told Agent Dubois-Marshall about the instant trip to Phoenix to transport marijuana. He provided details that were very similar to those imparted by his son. He also related that he had traveled on two other trips with his son to transport marijuana from Phoenix to Detroit. He provided certain details concerning the timing of the prior trips and the procedures that were followed that matched the information provided by his son.
5. The trip from Kansas City to Detroit took several hours and a number of stops were made during the course of it. At all times, law enforcement agents were with the defendants when stops were made. There is no indication that the defendant ever provided any information concerning the prior trips to his father during these stops.
Conclusions of Law
1. At sentencing, "[t]he government has the burden of establishing by a preponderance of the evidence the quantity of drugs for which a defendant is responsible." United States v. Green, 175 F.3d 822, 836-37 (10th Cir. 1999). The Sentencing Guidelines provide that a court may consider relevant information without regard to its admissibility under the rules of evidence so long as the information has "sufficient indicia of reliability to support its probable accuracy." U.S.S.G. § 6A1.3;see also United States v. Fennell, 65 F.3d 812, 813 (10th Cir. 1995) (stating that "reliable hearsay may be used in the determination of a sentence"). "When the actual drugs underlying a drug quantity determination are not seized, the trial court may rely upon an estimate to establish the defendant's guideline offense level, so long as the information relied upon has some basis of support in the facts of the particular case, and bears sufficient indicia of reliability." United States v. Ruiz-Castro, 92 F.3d 1519, 1534 (10th Cir. 1996) (internal quotation marks omitted).
2. The court finds that the government has sufficiently demonstrated that the defendant made other trips to transport marijuana. The court finds that the statements made by the defendant to Agent Dubois-Marshall after his arrest concerning the prior trips were truthful. The court finds no evidence to suggest that those statements were false. Accordingly, based upon those statements, the court finds that the presentence report accurately attributes the amounts of marijuana from those trips to the defendant.
PRIOR ARREST
The defendant objects to information contained in paragraph 52 of the presentence report. He asserts that the information contained in that paragraph concerning an arrest for felonious assault and shooting is incorrect because he was in the military during this time period. The government has not responded to this objection. The probation office suggests that the information is accurate.
The court need not make a finding on this objection because it has no impact on the defendant's sentence. Fed.R.Crim.P. 32(I)(3)(B).
ACCEPTANCE OF RESPONSIBILITY
The defendant objects to denial of credit for acceptance of responsibility. He contends that this is the exceptional case where he should receive acceptance of responsibility even though an obstruction of justice enhancement has been applied. He points out that he entered a timely plea of guilty and has never denied his guilt. The government and the probation office contend that the defendant is not entitled to credit for acceptance of responsibility. They point out that the actions of the defendant in absconding from supervision after the entry of his guilty plea disqualify him from credit for acceptance of responsibility.
Defendant bears the burden of proving entitlement to an adjustment for acceptance of responsibility. See United States v. Wach, 907 F.2d 1038, 1040 (10th Cir. 1990). Guideline § 3E1.1(a) states that "[i]f the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels." In addition, the commentary to this section indicates that "[c]onduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct." U.S.S.G. § 3E1.1(a) Commentary Note 4. The Guidelines do envision extraordinary cases where a defendant could receive an adjustment for acceptance of responsibility despite also receiving an enhancement for obstruction of justice.See id.; see also United States v. Archuletta, 231 F.3d 682, 686 (10th Cir. 2000) (recognizing exception for extraordinary cases but holding that defendant's case was not extraordinary).
Defendant concedes that his conduct warrants an enhancement for obstruction of justice. Although the defendant contends that this an extraordinary case, he has not pointed to any extraordinary circumstances that would justify credit for acceptance of responsibility. Accordingly, the court shall deny this objection.
DOWNWARD DEPARTURE
The defendant contends that the court should require the government to file a motion for downward departure based upon his substantial assistance.
The court is empowered under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, upon a government motion, to impose a sentence below the guideline range and below a statute's and the guidelines' mandatory minimums to reflect a defendant's "substantial assistance in the investigation or prosecution of another person who has committed an offense." United States v. Duncan, 242 F.3d 940, 941 (10th Cir. 2001). In two instances, however, a court may either force the government to file the motion or grant the motion sua sponte. The first is when the government's refusal to file the motion violates an agreement. See United States v. Lee, 989 F.2d 377, 379 (10th Cir. 1993); see also United States v. Cerrato-Reyes, 176 F.3d 1253, 1264 (10th Cir. 1999). The second occurs when the government's refusal was based on an unconstitutional motive, such as the defendant's race or religion.See Wade v. United States, 504 U.S. 181, 185-86 (1992).
The defendant has made no allegation and provided no evidence that the government's failure to file the motion for downward departure violates the plea agreement or was based on an unconstitutional motive. Moreover, the court finds no support for these allegations even if they had been made. See Cerrato-Reyes, 176 F.3d at 1264. Accordingly, the court must deny defendant's motion to require the government to file a motion for downward departure.
CONCLUSION
With the aforementioned findings, the defendant's offense level is 28 and his criminal history category is I. The defendant's guideline range is 78 to 97 months. The court sentenced the defendant to a term of imprisonment of 78 months with a three-year period of supervised release.
IT IS SO ORDERED.