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UNITED STATES v. DE LA LUZ ANGEL-MARTINEZ

December 15, 1997

UNITED STATES of AMERICA
v.
MARIA de la LUZ ANGEL-MARTINEZ



The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 Once again a "drug-courier," a pawn of the international drug trade, stands before this Court awaiting her sentence and once again this Court must evaluate its authority to depart from the sentence range prescribed by the United States Sentencing Commission Guidelines Manual (the "Guidelines"). Having pled guilty to smuggling heroin into the United States, Defendant has moved for downward departures from the applicable guideline range on three separate grounds, including two grounds based upon her status as a deportable alien. The collision between a defendant's alienage and the Guidelines has divided the Circuit Courts of Appeals throughout the country.

 Specifically, this motion requires resolution of the following issues: (1) whether a sentencing court is authorized to depart from the applicable guideline range on the basis of an alien defendant's offer to stipulate to her deportability at sentencing; *fn1" (2) whether a deportable alien's ineligibility for pre-release confinement in a halfway house or similar facility constitutes disparate, harsher treatment under the Guidelines warranting a downward departure; *fn2" and (3) whether Defendant's conduct in this case constitutes "aberrant behavior" warranting a downward departure. For the reasons set forth below, I conclude that none of the grounds advanced by Defendant warrants a downward departure.

 I. BACKGROUND

 The following undisputed facts are set forth in the presentence report. See U.S.S.G. § 6B1.4(d). Defendant, Maria de la Luz Angel-Martinez (de Isaza), owned a furniture store in Bogota, Columbia. In November of 1996, Defendant went to the United States Embassy in Bogota to apply for a visa to conduct business in the United States with an eye toward exporting her furniture to America. While waiting for a bus outside the embassy, Defendant was approached by two unidentified men who initiated a conversation with her. During the course of this conversation, Defendant told the men of her financial difficulties and that she was applying for an American visa.

 The men offered to pay her airfare to the United States and $ 10,000 in cash if she would transport 500 grams of heroin to the United States for them. Defendant gave them her business card and spoke with them on several subsequent occasions to discuss the details of the transaction. Defendant hesitated when she learned that she would be required to swallow pellets of heroin, but ultimately agreed to do so.

 On December 7, 1996, Defendant was arrested at Newark International Airport in New Jersey. During an interview with, and a limited search by, United States Customs Service Inspectors, Defendant admitted to inserting and ingesting controlled substances into her body. Ultimately, 352.1 grams of heroin were found within Defendant's body.

 On February 19, 1997, Defendant and the government executed a written plea agreement and on May 30, 1997, Defendant pled guilty to a one-count Information charging her with the knowing and intentional importation of approximately 352 grams of heroin into the United States in violation of 21 U.S.C. §§ 952(a), 960. There is no evidence in the record that Defendant has ever engaged in other illegal activities.

 II. GUIDELINES ISSUES

 Finding no potential violations of the Ex Post Facto Clause of the U.S. Constitution because none of the applicable Guidelines has changed since the date of the offense in any way which might yield a harsher result, I will apply the Guidelines presently in effect. See U.S.S.G. § 1B1.11; United States v. Brannan, 74 F.3d 448, 450 nn.1-2 (3d Cir. 1996).

 A. Base Offense Level

 Defendant pled guilty to knowingly and intentionally importing approximately 352 grams of heroin into the United States in violation of 21 U.S.C. §§ 952(a), 960. Thus, Defendant's sentence is subject to the provisions of U.S.S.G. § 2D1.1. The offense here involved at least 100 grams, but less than 400 grams, of heroin. Therefore, Defendant's base offense level is 26. See U.S.S.G. §§ 2D1.1(a)(3), (c)(7).

 B. Specific Offense Characteristics

 Although 21 U.S.C. § 960(b)(2)(A) requires a mandatory minimum 5 year term of imprisonment, Congress and the Commission have provided a "safety-valve" for defendants who meet certain criteria. *fn3" In this case, the government and Defendant have stipulated to the existence of three of the relevant criteria. Although this Court is not bound by them, see U.S.S.G. § 6B1.4(d), in light of the circumstances of this case, I accept the stipulations contained in the plea agreement. Based upon a computation of Defendant's criminal history points and upon the government's oral representations at sentencing, I find that Defendant satisfies the remaining two requirements. See 18 U.S.C. §§ 3553(f)(1), (5); U.S.S.G. §§ 5C1.2(1), (5).

 This allows the Court to impose a sentence in conformity with the applicable guideline range without regard to the mandatory minimum term set forth in 21 U.S.C. § 960(b)(2)(A). See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. In addition, Defendant's satisfaction of the "safety-valve" criteria warrants a 2 level decrease in her offense level. See U.S.S.G. § 2D1.1(b)(4).

 C. Role in the Offense

 As noted above, Defendant and the government have stipulated that Defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines, and that Defendant was not engaged in a continuing criminal enterprise, as that term is defined in 21 U.S.C. § 848. The parties further agree that Defendant was a minor participant in the offense. Having examined the facts of this case, I see no reason to dispute these stipulations and, consequently, Defendant's offense level will be decreased by 2 levels. See U.S.S.G. § 3B1.2(b).

 D. Acceptance of Responsibility

 Defendant and the government have stipulated that Defendant has demonstrated a recognition and affirmative acceptance of responsibility for this offense and that Defendant timely notified authorities of her intention to enter a plea of guilty. Finding no basis to contest this stipulation I shall reduce Defendant's offense level by an additional 3 levels. See U.S.S.G. §§ 3E1.1(a), (b)(2).

 E. Calculation of the Guideline Range

 From a base offense level of 26, Defendant receives a 2 level decrease for meeting the criteria set forth in the "safety-valve" provision, a 2 level decrease for her minor role in the offense and a 3 level decrease for her acceptance of responsibility. Accordingly, Defendant's total offense level is 19. Defendant has zero criminal history points resulting in a criminal history category of I. Thus, with a total offense level of 19 and a criminal history category of I, I conclude that the applicable guideline range is 30 to 37 months.

 III. MOTION FOR DOWNWARD DEPARTURE

 Defendant seeks a downward departure from the applicable guideline range on three separate grounds. The Sentencing Reform Act of 1984 established the United States Sentencing Commission (the "Commission") which promulgated the Guidelines to promote uniformity of sentences for similar crimes. See United States v. Haut, 107 F.3d 213, 218 (3d Cir.), cert. denied, 117 S. Ct. 2528, and cert. denied, 139 L. Ed. 2d 80, 118 S. Ct. 130 (1997).

 As a starting point for a sentence-departure analysis, courts should treat each guideline as "carving out a 'heartland,' a set of typical cases embodying the conduct that each guideline describes." U.S.S.G. § 1A4(b); see United States v. Baird, 109 F.3d 856, 870 (3d Cir.), cert. denied, 139 L. Ed. 2d 173, 118 S. Ct. 243 (1997). However, "when a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted." U.S.S.G. § 1A4(b).

 A court may depart from the applicable guideline only if it finds "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b); accord U.S.S.G. § 5K2.0. Thus, "before a departure is permitted, certain aspects of the case must be found unusual enough for it to fall outside the heartland of cases in the Guideline. To resolve this question, the district court must make a refined assessment of the many facts bearing on the outcome, informed ...


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