Opinion
Case No. 00-40112-02-JAR.
January 25, 2002
MEMORANDUM AND ORDER
On January 16, 2002, the Court sentenced the defendant. The purpose of this memorandum and order is to memorialize the rulings made by the court during sentencing.
In March of 2001, the defendant entered a plea of guilty to conspiracy to possess with intent to distribute cocaine. A presentence report was prepared by the probation office. The defendant makes three objections to the completed presentence report.
1. Quantity of drugs.
The defendant objects to the quantity of drugs attributed to her in the presentence report. The presentence report determined that the defendant made a total of six trips to transport cocaine from Phoenix to St. Louis. The defendant was arrested on the sixth trip, at which time the government seized 19.9 kilograms of cocaine. The presentence report states that the defendant transported 94.9 kilograms of cocaine, approximating that the defendant transported 15 kilograms in the previous five trips, with a resulting base offense level 36. The defendant argues that 15 kilograms per trip is not a reasonable estimate and that the government's calculation amounts to improper extrapolation of the amount seized in the sixth trip. The government asserts that the amount attributed to the defendant in the presentence report is properly calculated.
U.S.S.G. § 2D1.1. Level 36 is for at least 50 KG, but less than 150 KG of cocaine.
The government has the burden of proving the quantity of drugs for sentencing purposes by a preponderance of the evidence. The United States Sentencing Guidelines allow district courts to consider as relevant conduct any drug amounts that were part of the same course of conduct or common scheme or plan as the offense of conviction, whether or not the defendant was convicted of offenses connected to the additional drug amounts. The government did not seize any drugs in the first five trips; therefore the court is required to "approximate the quantity." While the court may rely on a government estimate in approximating the quantity of drugs, the information underlying the estimate must possess "a minimum indicia of trustworthiness."
United States v. Reyes, 979 F.2d 1406, 1410 (10th Cir. 1992).
See U.S.S.G. § 1B1.3; United States v. Roederer, 11 F.3d 973, 978-79 (10th Cir. 1993) (citations omitted).
U.S.S.G. § 2D1.1, comment. (n. 12) (Nov. 1992).
See, e.g., United States v. Sturmoski, 971 F.2d 452, 462 (10th Cir. 1992).
United States v. Garcia, 994 F.2d 1499, 1508 (10th Cir. 1993) (citations omitted). See also U.S.S.G. § 6A1.3(a) (information relied on by court at sentencing must have "sufficient indicia of reliability to support its probable accuracy").
The Court has carefully reviewed the information contained in the presentence report and finds that the quantity estimates have a sufficient indicia of reliability. The defendant made two trips with a co-defendant, three trips alone, and the final trip with her husband, at which time the authorities seized 19.9 kilograms of cocaine. On this last trip, the defendant and her husband were paid $3,000 each, for a total of $6,000; on previous trips, the defendant was paid between $3,000 and $4,000. Giving the defendant the benefit of the doubt, and assuming that there was half as much cocaine in the five previous trips (10 kilograms), the total would amount to 50 kilograms. When combined with the 19.9 kilograms seized, the total is 69.9 kilograms, which remains within the level 36 sentencing range calculated by the presentence report. Accordingly, the Court finds that the amount of drugs attributed to the defendant in the presentence report has been properly calculated.
2. Minor participant reduction.
The defendant argues that her base offense level should be reduced because of a difference in the level of participation between the defendant and co-defendants. The defendant contends that there is a qualitative distinction in her role as a drug courier and that she is entitled to a two-point sentence reduction for her relatively minor role.
The defendant has the burden of establishing by a preponderance of the evidence that she is entitled to a reduction in base offense level. The sentencing guidelines permit a two-level reduction if the defendant acted as a "minor participant" in the offense. The court has discretion to grant a base offense level reduction if it finds a defendant is less culpable relative to other participants in a given offense. A drug courier may be eligible for a minor participant adjustment by "looking at the contours of the underlying scheme rather than the mere elements of the offense charged." The defendant's status as a courier does not automatically entitle her to a downward departure, however, because a courier's services may be as indispensable to the completion of the crime as those of the seller and the buyer.
United States v. Onheiber, 173 F.3d 1254, 1258 (10th Cir. 1999).
U.S.S.G. § 3B1.2(b).
U.S.S.G. § 3B1.2; United States v. Santistevan, 39 F.3d 250, 254 (10th Cir. 1994) (citation omitted).
United States v. Harfst, 168 F.3d 398, 403 (10th Cir. 1999) (citations omitted).
United States v. Ballard, 16 F.3d 1110, 1114-15 (10th Cir. 1994) (citations omitted).
Although the defendant characterizes her role in the criminal activity as a "flunkie," the Court concludes that her role did not entail the limited participation to which the sentence reduction was intended to apply. On the sixth and final trip, the defendant drove a Ford Explorer that she knew was purchased for the specific purpose of transporting cocaine. The defendant was also aware that the Explorer was titled in her name to avoid suspicion in case she was stopped by the authorities. The defendant made three of the six trips alone and unsupervised. Accordingly, the Court finds that the defendant is not entitled to the reduction.
3. Statement contained in page 27.
The defendant objects to co-conspirator statements contained in page 27 of the presentence report as unsubstantiated. The government agrees that the statement should not be in the report and the court will disregard the statement.
4. Conclusion.
The defendant's objection to the quantity determination is DENIED. The defendant's request for minor participant reduction of base offense level is DENIED. The Court will disregard the co-conspirator statement on page 27 of the presentence report.
The Probation Officer in charge of this case shall see that a copy of this order is appended to any copy of the presentence report made available to the Bureau of Prisons.
IT IS SO ORDERED.