Defendant's motion for a downward departure on the basis of harsher conditions of confinement will be denied.
C. Aberrant Behavior
Finally, Defendant moves for a downward departure on the ground that her illegal conduct can be characterized as "aberrant behavior." The introductory statement of the Guidelines provides that "the Commission, of course, has not dealt with the single acts of aberrant behavior that still may justify probation at higher offense levels through departures." U.S.S.G. § 1A4(d).
Several courts have held that this statement authorizes a sentencing court to depart downward even where the ensuing sentence is not probation. See United States v. Grandmaison, 77 F.3d 555, 561 (1st Cir. 1996); United States v. Duerson, 25 F.3d 376, 380 (6th Cir. 1994); United States v. Fairless, 975 F.2d 664, 668 (9th Cir. 1992); United States v. Withrow, 85 F.3d 527, 530 (11th Cir.), cert. denied, 136 L. Ed. 2d 245, 117 S. Ct. 332 (1996); see also United States v. Kalb, 105 F.3d 426, 429 (8th Cir. 1997) (under Koon, aberrant behavior is an encouraged factor when resulting in a sentence of probation and is otherwise an unmentioned factor). Because I conclude that Defendant's conduct cannot be characterized as aberrant under the legal standard applicable in this circuit, I need not decide whether I could depart without imposing mere probation.
In United States v. Marcello, 13 F.3d 752, 760-61 (3d Cir. 1994), the Third Circuit adopted the majority rule that "[a] single act of aberrant behavior ... generally contemplates a spontaneous and seemingly thoughtless act rather than one which was the result of substantial planning." Id. at 761 (quoting United States v. Carey, 895 F.2d 318, 325 (7th Cir. 1990)) (emphasis omitted). "Aberrant behavior must involve a lack of planning; it must be a single act that is spontaneous and thoughtless, and no consideration is given to whether the defendant is a first-time offender." Marcello, 13 F.3d at 761.
In Marcello, the defendant deposited a total of $ 63,000.00 in a bank account through a series of transactions designed to avoid various federal reporting requirements. The Third Circuit affirmed the district court's conclusion that the defendant's conduct was not aberrant behavior because "some pre-planning was required to deposit $ 9,000.00 each day over a one-week period of time." Id.; see also United States v. Artim, 944 F. Supp. 363, 368 (D.N.J. 1996); compare United States v. Russell, 870 F.2d 18 (1st Cir. 1989) (noting that the defendant's conduct was "arguably aberrant behavior" where armored car drivers were mistakenly handed $ 80,000 and kept it for one week but then returned it and cooperated fully).
Although Defendant's conduct does not appear typical, I am constrained to apply the law as dictated by the Guidelines and interpreted by the Third Circuit. Unfortunately for Defendant, this leads me to conclude that Defendant's conduct does not amount to aberrant behavior within the meaning of § 1A4(d). Defendant was initially approached by two men about this crime in November of 1996 and committed the offense on December 7, 1996. When the two men offered her $ 10,000 to smuggle heroin into the United States, Defendant gave them her business card. During the time between this first encounter and Defendant's flight to America, Defendant had contact with the two men on several occasions to discuss how and when she would commit this offense. Thus, under the standard announced in Marcello, Defendant's conduct clearly involved "some pre-planning" and cannot be characterized as spontaneous or thoughtless. See Marcello, 13 F.3d at 761. Therefore, Defendant's motion for a downward departure on the basis of aberrant behavior will be denied.
For the reasons stated above, Defendant's motion for a downward departures will be denied. The Court will enter an appropriate Order.
Given a base offense level of 26 with adjustments of 3 levels for acceptance of responsibility, 2 levels for minimal role and another 2 levels pursuant to U.S.S.G. § 2D1.1(b)(4), see infra Part II, Defendant's total offense level is 19. Having no criminal history points, Defendant has a Criminal History Category of I. Thus, the applicable guideline range is 30 to 37 months.
In light of the stipulations contained in the plea agreement relating to U.S.S.G. § 5C1.2(1)-(4) and 18 U.S.C. § 3553(f)(1)-(4), this Court's finding that Defendant has no more than 1 criminal history point and the stipulation by the government on the record regarding the criteria required by U.S.S.G. § 5C1.2(5), I conclude that Defendant is eligible to be sentenced under the "safety-valve" provision of U.S.S.G. § 5C1.2, i.e., below the mandatory minimum sentence for 21 U.S.C. §§ 952(a), 960, but within the applicable guideline range, in this case, 30 to 37 months.
Dated: December 15, 1997
STEPHEN M. ORLOFSKY
United States District Judge
This matter having come before the Court on the motion of Defendant, Maria de la Luz Angel-Martinez (de Isaza), for a downward departure pursuant to U.S.S.G. § 5K2.0, Richard Coughlin, Esq., Federal Public Defender, and Lori M. Koch, Esq., Assistant Federal Public Defender, appearing on behalf of Defendant, and Faith S. Hochberg, Esq., United States Attorney, and V. Grady O'Malley, Esq., Special Litigation Counsel, Assistant United States Attorney, appearing on behalf of the United States of America; and,
The Court having considered Defendant's Memorandum, the government's response, Defendant's reply memorandum, the plea agreement between Defendant and the government, and the Presentence Investigation Report, for the reasons set forth in the Court's OPINION, filed concurrently with this ORDER;
IT IS, on this 15th day of December, 1997, hereby ORDERED that Defendant's motion for a downward departure is DENIED.
STEPHEN M. ORLOFSKY
United States District Judge