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UNITED STATES v. MIRANDA

September 26, 1997

UNITED STATES OF AMERICA
v.
ANTHONY MIRANDA



The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 This case requires this Court once again to plumb the murky depths of the United States Sentencing Guidelines ("U.S.S.G." or the "Guidelines") and address the question of whether horrific pretrial conditions at a county jail housing a federal prisoner provide a basis for departure under the Guidelines.

 On August 8, 1997, Defendant, Anthony Miranda ("Miranda"), pled guilty to Count 1 of a two-count indictment charging the Defendant and a number of co-conspirators with a violation of 21 U.S.C. § 846, that is, knowingly and intentionally conspiring to violate 21 U.S.C. § 841(a)(1), i.e., to distribute and possess with intent to distribute more than five kilograms of cocaine.

 Miranda, the Government, and the Probation Officer in the Presentence Investigation Report ("PSR") have identified a number of sentencing issues which this Court must rule upon in order to calculate the applicable sentencing guidelines range. Finding no potential violation of the Ex Post Facto clause of the Constitution because none of the Guidelines involved in this case have changed since the date of the offense which might yield a harsher result, the Court will apply the Guidelines in effect at the time of sentencing. See U.S.S.G. § 1B1.11; United States v. Brannan, 74 F.3d 448, 450 nn.1-2 (3d Cir. 1996).

 I. Discussion

 A. Base Offense Level

 Because the amount of cocaine involved in the offense was greater than 50 kilograms and less than 150 kilograms, the offense carries a base offense level of 36. See U.S.S.G. § 2D1.1(c)(2).

 B. Acceptance of Responsibility

 While the Court is not bound by the terms of the parties' plea agreement, see, e.g., U.S.S.G. § 6B2.4(d); United States v. Forbes, 888 F.2d 752, 754 (11th Cir. 1988), the Court sees no basis for disputing the 3-point downward adjustment for Miranda's acceptance of responsibility. Pursuant to U.S.S.G. § 3E1.1(a) (clear demonstration of acceptance of responsibility) and § 3E1.1(b)(2) (timely notification of intention to enter a plea of guilty where base offense level is greater than 16 prior to application of § 3E1.1(a)), Miranda's offense level shall be adjusted to 33.

 C. Exceptionally Minimal Role/Minimal Participant/Minor Participant

 In the plea agreement, Miranda and the Government stipulated that Miranda was a "minor participant" and therefore, pursuant to U.S.S.G. § 3B1.2(b), entitled under the agreement to a 2-point adjustment. Miranda has now moved for an additional downward departure under U.S.S.G. § 5K2.0 claiming that the Guidelines do not "adequately reward him for his exceptionally minimal role in the conspiracy," Defendant's Letter Brief at 5 (dated Sept. 12, 1997). In the alternative, Miranda moves for a four-point reduction under U.S.S.G. § 3B1.2(a) for his "minimal role" in the offense. The PSR found that Miranda was entitled to no additional downward departure under any guideline, §§ 3B1.2(a), 3B1.2(b), or 5K2.0.

 While the Court may grant a downward departure pursuant to both sections, see, e.g., United States v. Stuart, 22 F.3d 76, 83 (3d Cir. 1994) (adopting reasoning of United States v. Restrepo, 936 F.2d 661 (2d Cir. 1991) in applying U.S.S.G. § 2S1.1), the Court declines Miranda's invitation to depart downwardly under section 5K2.0 or section 3B1.2(a). Instead, the Court will not disturb the Government and Miranda's agreement to a 2-point reduction for Miranda's minor role under section 3B1.2(b).

 The Application Notes to U.S.S.G. § 3B1.2 indicate that a downward adjustment for a minimal participant is to be used infrequently and for those who, for example, "played no other role in a very large drug smuggling operation than to offload part of a single . . . shipment, or in a case where an individual was recruited as ...


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