to reject the request. The court finds that the denial of the two level adjustment is appropriate in light of Caterini's flight to Canada and will deny Caterini the two point downward adjustment for acceptance of responsibility.
The court is not bound by the Government's stipulation to a two point reduction for acceptance of responsibility in the plea agreement. See United States v. Singh, 923 F.2d 1039, 1043-44 (3d Cir.), cert. denied U.S. , 111 S. Ct. 2065 (1991); United States v. Moya, 730 F. Supp. 35, 39-40 (N.D. Tex. 1990); see also U.S.S.G. § 3E1.1(c)("A defendant who enters a guilty plea is not entitled to a sentencing reduction under this section as a matter of right."); Policy Statement 6B11.4(d)("The court is not bound by the stipulation, but may with the aid of the presentence report, determine the facts relevant to sentencing.") Moreover, the plea agreement provides: "This agreement to stipulate, however, cannot and does not bind the sentencing court, which may make independent factual findings and may reject any or all of the stipulations entered into by the parties." (Plea Agreement of Caterini dated November 4, 1991.)
Although the defendant in the instant case has admitted his involvement in the offense and related conduct, a plea of guilty is not dispositive as to the defendant's acceptance of responsibility. See Singh, 923 F.2d at 1043. The Guidelines call for a two-level reduction in the defendant's base offense level "if the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." Guidelines § 3E1.1(a); see also Singh, 923 F.2d at 1042; United States v. Ofchinick, 877 F.2d 251, 255 (3d Cir. 1989). In determining whether a defendant has accepted responsibility, the Application Notes to Guideline § 3E1.1 provide a non-inclusive list of appropriate considerations to apply in determining whether a defendant qualifies for a reduction. Ofchinick, 877 F.2d at 255.
In holding that the downward adjustment is inappropriate, the court is guided by Application Note 4 to Guidelines § 3E1.1. Application Note 4 provides: "Conduct resulting in an enhancement under § 3E1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the Defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply."
Caterini fled to Canada and failed to appear at a scheduled hearing before this court in violation of the terms of his supervised release. Caterini was eventually arrested on May 17, 1991 by the Royal Canadian Mounted Police in Montreal, Canada. Caterini was indicted for bail jumping in violation of 18 U.S.C. § 3146 on June 6, 1991 (Crim. No. 91-246 (JFG)). Caterini waived extradition and was returned to the United States where he has remained in custody without bail. Caterini's flight to Canada constituted an obstruction of justice pursuant to § 3C1.1.
The court finds that Caterini's conduct of fleeing to Canada after his arrest for the drug offense that resulted in an enhancement under § 3C1.1 for obstructing justice indicates that Caterini has not clearly demonstrated a recognition and affirmative acceptance of responsibility for his criminal conduct.
This is not an "extraordinary case" in which a downward adjustment may be proper notwithstanding the previously imposed upward adjustment under § 3C1.1. See United States v. Paige, 923 F.2d 112, 114 (8th Cir. 1991)(in applying Application Note 4 to § 3E1.1 court refused to award defendant who pled guilty to interstate transportation of stolen vehicle and whose attempts to evade arrest engaging in high speed chase mandated adjustment pursuant to § 3C1.1 downward adjustment for acceptance of responsibility); United States v. Scott, 915 F.2d 774, 776 (1st Cir. 1990)(defendant who pled guilty to charge of willfully making false material statements impeding an on-going investigation was not entitled to two point reduction as false statements amounted to obstruction of justice).
For the reasons set forth above, the court finds that the amount of heroin to be attributed to defendant Caterini for guidelines purposes is 1,024.19 grams; Caterini did not engage in conduct amounting to an attempt to escape from Fairton thereby mandating an upward departure for obstruction of justice; and that Caterini does not qualify for a two point downward adjustment for acceptance of responsibility.
STANLEY S. BROTMAN
UNITED STATES DISTRICT JUDGE
Dated: September 4, 1992
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 801 F. Supp. 1407.
ORDER - September 4, 1992, Filed
This matter having come before the court to resolve disputed sentencing issues pursuant to Guidelines § 6A1.3; and
Having considered the evidence presented before this court on June 8, 9, 10 and July 15, 1992, as well as the submissions of counsel; and
For the reasons set forth in this court's opinion of this date;
IT IS on this 4th day of September, 1992;
ORDERED that Defendant Caterini's objections to the Pre-Sentence report's findings attributing 1,024.19 grams of heroin to Caterini are DENIED; and it is further
ORDERED that the Government's application for an upward adjustment due to Caterini's alleged escape from Fairton is DENIED; and it is further
ORDERED that the Government's application to deny Caterini a two point reduction for acceptance of responsibility is GRANTED; and it is further
ORDERED that the sentencing date is hereby scheduled for Friday, the 25th of September, 1992 at 9:30 a.m. in Courtroom 2, U.S. Courthouse & Post Office Building, 401 Market Street, Camden, New Jersey.
STANLEY S. BROTMAN
UNITED STATES DISTRICT JUDGE