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UNITED STATES v. SUTTON

July 22, 1997

UNITED STATES OF AMERICA,
v.
JULIO ENRIQUE SUTTON, Defendant.



The opinion of the court was delivered by: BASSLER

 BASSLER, DISTRICT JUDGE:

 This matter is before the Court for the sentencing of Julio Enrique Sutton.

 Mr. Sutton pled guilty to one count of importing heroin in violation of 21 U.S.C. §§ 952(a) and 960(a)(1). These statutes carry a mandatory minimum of 60 months imprisonment.

 During the summer of 1996, Mr. Sutton obtained a passport and airline tickets to Cali, Columbia in order to obtain heroin to smuggle into the United States. Mr. Sutton expected to be paid $ 16.50 for each gram of heroin he smuggled. (Presentence Report P 8).

 Mr. Sutton returned to Newark International Airport on August 4, 1996 from Cali, Columbia. An X-ray examination of Mr. Sutton revealed the presence of foreign substances in his digestive tract. During the next two days, Mr. Sutton excreted 75 pellets of heroin containing 580.8 grams of heroin. (PSR PP 8, 12).

 The Presentence Report calculates Mr. Sutton's total offense level to be 23 and his criminal history category to be II, resulting in a sentencing range of 60 to 63 months. For the reasons set forth below, the Court calculates Mr. Sutton's total offense level to be 25 and his criminal history category to be II, resulting in a sentencing range of 63 to 78 months.

 II. DISCUSSION

 A. Base Offense Level

 The parties agree that Mr. Sutton imported between 400 and 700 grams of heroin into the country, giving him a base offense level of 28. U.S.S.G. § 2D1.1(c)(6).

 B. Minor Role Adjustment

 The plea agreement entered into in this case stipulates that Mr. Sutton played a minor role in the activities surrounding the importation of heroin into the country and suggests a two-point downward adjustment.

 The Court, of course, is not bound by the parties' plea agreement. United States v. Forbes, 888 F.2d 752, 754 (11th Cir. 1989)(court not bound to find that defendant played a minor role as stipulated); U.S.S.G. § 6B1.4(d).

  Granting a downward adjustment on the facts of this case is contrary to Third Circuit law, and the Court, therefore, declines to do so. Similar contentions have been flatly rejected by the Third Circuit at least twice. See United States v. Hernandez, 107 F.3d 864 (3d Cir. 1997)("Since the defendant's offense level was determined solely by his own conduct as a courier, the district court did not err in refusing to further reduce his role based upon his relationship to other participants . . . . Since Hernandez imported all 680 grams involved, he can hardly be considered a 'minor participant')(affirming Bassler, J.); United States v. Mendoza-Rodriguez, 107 F.3d 9 (3d Cir. 1997)(". . . it is impossible for the defendant to have been a minor participant in the offense for which he was charged, because he was the only participant in the offense for which he was charged. He can not have been a minor participant in his own possession of illicit drugs"); United States v. Uriostegui-Estrada, 86 F.3d 87, 90 (7th Cir. 1996)(a drug courier who "was sentenced only for the amount of drugs he carried" rather than "as a participant in a larger enterprise" played a "significant rather than a minor role in that offense"). Here, as in the above-cited cases, Mr. Sutton is not charged for his role in some larger offense; rather, he is charged for importing heroin that he himself actually imported into the United States. His role in that offense is not minor. Therefore, he is not entitled to a two-point downward adjustment for minor role.

 C. Acceptance of Responsibility

 The Court sees no basis for disputing the additional three point downward adjustment for Mr. Sutton's acceptance of responsibility pursuant to U.S.S.G. §§ 3E1.1(a) & (b).

 Mr. Sutton's total offense level, after adjustments therefore, is 25.

 D. Criminal History Category

 The Probation Department initially calculated Mr. Sutton's criminal history category to be III, based on three criminal history points. Mr. Sutton objected, arguing that one of the points had been improperly calculated. The Probation Department subsequently revised its recommendation to reflect a criminal history category of II. Mr. Sutton has voiced no further objection to the Probation Department's revised recommendation.

 The Court's review of the record confirms that Mr. Sutton's criminal history points total 2, placing him in ...


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