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April 13, 1998


The opinion of the court was delivered by: LECHNER


 LECHNER, District Judge

 After a jury trial, defendant Dario Jaramillo ("Jaramillo") was found guilty of conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 846. After sentencing, Jaramillo appealed and argued, inter alia, he had improperly received a two-point upward adjustment for obstruction of justice pursuant to U.S.S.G. § 3C1.1 ("Section 3C1.1"). While the appeal was pending, the Circuit decided United States v. Arnold, 106 F.3d 37 (3d Cir. 1997), which set forth requirements for upward enhancements pursuant to Section 3C1.1. Because the holding of Arnold directly impacts the Section 3C1.1, as in effect for purposes of this case, sentencing issue, this matter was remanded for resentencing on this narrow issue. *fn1" On 16 January 1998, Jaramillo also submitted, a pro se, "Motion For Sentencing Departure Pursuant To U.S.S.G § 5K2.0 Based On Post-Conviction Rehabilitation Efforts" (the "Motion for Sentencing Departure"). *fn2"

 On 6 April 1998, a hearing (the "6 April 1998 Hearing") was held on the Section 3C1.1 sentencing issues.


 On 2 August 1995 a grand jury returned an indictment against Jaramillo for conspiracy to possess with intent to distribute approximately 950 grams of heroin. The trial commenced on 17 October 1995 and the jury returned a verdict on 19 October 1995 at approximately 9:25 o'clock a.m.; Jaramillo was found guilty.

 On 19 October 1995 following the return of the jury verdict, this matter was set for sentencing on 25 January 1996 (the "25 January 1996 Sentencing Hearing"). At the 25 January 1996 Sentencing Hearing, counsel for Jaramillo, *fn4" without prior notice to the court or to the Government, requested an adjournment to permit Jaramillo the opportunity to speak with the probation officer who drafted the presentence report (the "Presentence Report"). See Transcript of 25 January 1996 Sentencing Hearing at 3-7. The request was granted; the matter was rescheduled for sentencing on 8 February 1996 (the "8 February 1996 Sentencing Hearing") at 11:00 o'clock a.m. See id. at 6.

 During the 8 February 1996 Sentencing Hearing, counsel to Jaramillo at the time announced he wished to call Jaramillo to the stand to testify under oath. See Transcript of 8 February 1996 Sentencing Hearing at 3. When asked whether notice of this was given to either the court or the Assistant United States Attorney, counsel to Jaramillo indicated notice had not been given. See id. at 3-5. Accordingly, after Jaramillo was sworn and testified, the matter was carried from 8 February to 13 February 1996 in order to permit the Assistant United States Attorney time to gather evidence and prepare for cross-examination. See id. at 12-15.

 On 13 February 1996 (the "13 February 1996 Sentencing Hearing"), Jaramillo was cross-examined by the Assistant United States Attorney and his testimony was completed. Thereafter, Jaramillo declined to offer other testimony concerning his sentencing. See Transcript of 13 February 1996 Sentencing Hearing at 15. The Government then offered the testimony of Special Agent Peter Edge.

 Jaramillo was sentenced on 28 February 1996 (the "28 February 1996 Sentencing Hearing") pursuant to the Pre-Sentence Report, prepared by the United States Probation Office (the "Probation Office") on 4 December 1995, revised by the Probation Office on 30 January 1996 and supplemented by a memorandum from the Probation Office, dated 8 February 1996. Jaramillo was also sentenced based upon testimony offered at the 8 and 13 February 1996 Sentencing Hearings. The Pre-Sentence Report included the following calculations:

Offense Level Computation
35. The 1995 edition of the Guidelines Manual has been used in this case.
Count One -- Conspiracy to Possess with Intent to distribute approximately 696 Grams of Heroin.

  36. Base Offense Level: The United States Sentencing Commission Guideline for violation of 21 U.S.C. § 841(a)(1) is found in U.S.S.G. § 2D1.1(a)(3)(c)(6) and calls for a base offense level of 28. 28 37. Specific Offense Characteristic: None. 0 38. Victim-Related Adjustments: None. 0 39. Adjustments for Role in the Offense: Pursuant to U.S.S.G. § 3B1.1(c) [("Section 3B1.1(c)")], the offense is increased two levels. 40. Adjustment for Obstruction of Justice: None. 0 41. Adjusted Offense Level (Subtotal): 30 42. Adjustment for Acceptance of Responsibility: 0 43. Additional Adjustment for Acceptance of Responsibility: 0 44. Total Offense Level: 30 45. Chapter Four Enhancements: None. 0 46. Total Offense Level: 30

 Pre-Sentence Report at 8-9.

 Jaramillo objected to a two-level increase imposed for his role in the offense pursuant to Section 3B1.1(c) *fn5" and argued there was no testimony substantiating the increase for organizer, leader, manager, or supervisor status. See 11 March 1996 Opinion at 14-15. Jaramillo also argued for a two-point reduction for minimum participation pursuant to U.S.S.G. 3B1.2(b). See id. at 15.

 It was determined the two-level aggregating role adjustment pursuant to Section 3B1.1(c) was applicable because Jaramillo recruited his co-defendant Victor Rodriguez ("Rodriguez") and organized and financed the instant drug conspiracy. *fn6" See 31 March 1996 Opinion at 15. The facts establish Jaramillo directed and controlled at least one individual; that individual was Rodriguez. See id. In addition, although a mitigating role adjustment may be awarded if a defendant is "substantially less culpable than the average participant," see Commentary to Section 3B1.2.(b), the conduct of Jaramillo, as reflected in the Pre-Sentence Report, and as the facts developed at trial revealed, did not support a mitigating role adjustment. See 11 March 1996 Opinion at 15-16.

 Jaramillo also contended he qualified for a two-level reduction pursuant to Section 2D1.1(b)(4) which provides that if a defendant meets the criteria set forth in U.S.S.G. 5C1.2(1)-(5) ("Section 5C1.2") and the offense level is twenty-six or greater, a decrease of two levels is appropriate. *fn7"

 It was determined Jaramillo did not meet the criteria in subsection (4) or subsection (5) of Section 5C1.2. See 11 March 1996 Opinion at 17. As indicated, Jaramillo was found to be a leader, organizer, manager, or supervisor of another in the offense, see Section 5C1.2(4), and had not truthfully provided to the Government all information and evidence he had concerning the offense. *fn8" See 11 March 1996 Opinion at 17 (citing Section 5C1.2(5)).

 At both the 8 February and 13 February 1996 Sentencing Hearings, Jaramillo voluntarily took the witness stand, was sworn and testified concerning the facts and his role in the instant matter. At the conclusion of the 13 February 1996 Sentencing Hearing, the parties were asked to submit briefs with respect to whether a two-point enhancement was warranted by Section 3C1.1, pursuant to United States v. Dunnigan, 507 U.S. 87, 122 L. Ed. 2d 445, 113 S. Ct. 1111 (1993). Specifically, it was stated:

I'm inclined to enhance the Guideline computation two points for obstruction of justice. It seems to me -- I'm not ruling at this point, but it seems to me that [Jaramillo's] testimony with regard to many comments he made here were false, willfully false, that he committed perjury and under Section 3C1.1, a two-point enhancement is appropriate.

 See Transcript of 13 February 1996 Sentencing Hearing at 31.

 After submissions received from the Government and Jaramillo were considered, it was determined a two-point enhancement pursuant to Section 3C1.1 was appropriate because Jaramillo committed perjury. See Transcript of 28 February 1996 Sentencing Hearing at 521. The 11 March 1996 Opinion stated: "Jaramillo gave false testimony concerning several material matters; he did so with willful intent to provide false testimony, to mislead the court and, in effect, to obstruct justice." 11 March 1996 Opinion at 20 (citing Dunnigan, 507 U.S. at 95; United States v. Colletti, 836 F. Supp. 221, 228 (D.N.J. 1993), vacated on other grounds, 22 F.3d 304 (3d Cir. 1994)). Jaramillo's "denial of any supervisory control over Rodriguez" was found to be "false and in conflict with the trial evidence." Id. at 19. The testimony of Jaramillo concerning when Jaramillo first learned of Rodriguez's trip to Aruba, and of the statements of Jaramillo regarding paying for Rodriguez's trip to Aruba and providing Rodriguez with certain phone numbers was found to be incredible -- false. See id.

 Combined with a criminal history category of I, it was determined Jaramillo faced a Sentencing Guideline imprisonment range of 121 to 151 months. See 11 March 1996 Opinion at 21. Accordingly, Jaramillo was sentenced to 121 months imprisonment, a supervised release term of four years, a $ 5,000 fine and a $ 50 special assessment.

 After sentencing, Jaramillo appealed. Among other things, Jaramillo appealed the imposition of the two-point enhancement for obstruction of justice based upon the finding that he perjured himself during sentencing. The case is now before this court pursuant to the decision of the Third Circuit, which remanded the instant matter for resentencing on the narrow issue regarding the enhancement requirements articulated in Arnold. *fn9"


 I. Enhancement for Obstruction of ...

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